Whichman v Department of Corrections

[2018] NZHC 1296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1029

[2018] NZHC 1296

BETWEEN

GEORGE WHICHMAN

Applicant

AND

DEPARTMENT OF CORRECTIONS

Defendant

Hearing:

1 June 2018

Counsel:

Appellant in person

M Mortimer for Defendant

Judgment:

1 June 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 1 June 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Meredith Connell, Auckland

WHICHMAN v DEPARTMENT OF CORRECTIONS [2018] NZHC 1296 [1 June 2018]

[1]    I have before me a purported application for habeas corpus. The central claim made is that Mr Whichman has been unlawfully detained in solitary confinement for 18 hours a day and for lengthy periods and otherwise mistreated while serving a sentence. In support of his application, he refers to the New Zealand Bill of Rights Act and, in particular, ss22, 23(5), 17 – 19 and 10. He also refers to arts 9, 18 and 19 of the International Covenant on Civil and Political Rights. The majority of those provisions deplore unlawful and/or arbitrary detention.

[2]    The present application follows from an application made on 8 March 2018. As happened in that case, the application for a writ of habeas corpus has to be dismissed.1 Mr Whichman was convicted and sentenced in the District Court on firearms charges and domestic violence charges and is presently serving that sentence. While there is a conviction and sentence, habeas corpus is not available to challenge the imprisonment.2 Previous authorities suggest judicial review is a more appropriate way to challenge solitary confinement than a writ of habeas corpus. As the Court of Appeal in Ericson v Department of Corrections stated:3

The writ is not appropriate for challenging the lawfulness of a conviction or the conditions under which an inmate sentenced to imprisonment is detained.

[3]Accordingly, the application is dismissed.

1      Whichman v Chief Executive of Department of Corrections [2018] NZHC 380.

2      Wallace v Chief Executive of Department of Corrections [2012] NZSC 16.

3      Ericson v Department of Corrections [2014] NZCA 118, [2014] NZAR 540 at [4].