Whiu v Prison Director of Ngawha Prison

[2022] NZHC 4

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-0001

[2022] NZHC 4

UNDER

The Habeas Corpus Act 2011

IN THE MATTER

of an application for a writ of Habeas Corpus

BETWEEN

EDWIN GODFREY WHIU

Applicant

AND

PRISON DIRECTOR OF NGAWHA PRISON

First Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Second Respondent

Hearing:

10 January 2022

Appearances:

Applicant in person

E M Watt for Respondents

Judgment:

11 January 2022

JUDGMENT OF LANG J

[on application for writ of habeas corpus]

This judgment was delivered by me on 11 January 2022 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

WHIU v PRISON DIRECTOR OF NGAWHA PRISON [2022] NZHC 4 [11 January 2022]

[1]    Mr Whiu is currently detained in Auckland Prison. He has filed an application for a writ of habeas corpus under the Habeas Corpus Act 2001 (the Act). As is required in such cases, the Court allocated the application an urgent hearing.

[2]    It is difficult to follow Mr Whiu’s application. However, he confirmed during the hearing that he objects to the fact that he was transferred from Ngawha Prison to Auckland Prison. He also contends that the sentence of imprisonment to which he is subject has now expired.

[3]    The habeas corpus procedure is not available to prisoners who seek to challenge their transfer from one prison to another. The transfer of prisoners is an administrative act and does not bring into play the provisions of the Act. If Mr Whiu genuinely believes he has grounds to challenge the transfer decision the appropriate method by which to do so is to apply for judicial review of that decision.

[4]    The habeas corpus procedure would be available if Mr Whiu could demonstrate that he is being held in prison after serving the whole of his sentence. However, this argument faces the obstacle that Mr Whiu was sentenced to imprisonment for life on 28 September 2000 on a charge of murder. Paterson J signed the warrant of commitment for that sentence on the same date. I have sighted the warrant and confirm this to be correct. It follows that Mr Whiu is currently lawfully detained.

[5]    This issue may have arisen because of an error contained in internal records held by the prison. These show the sentence imposed on Mr Whiu being corrected from nine years to life imprisonment. The error may have been caused by the fact that Mr Whiu earlier received a sentence of nine years imprisonment on a charge of manslaughter on 14 June 1995.

[6]    In the present context, however, the warrant is the cornerstone document. It correctly records that the sentence imposed on the murder charge was one of life imprisonment. Prisoner Movement records since that date record that Mr Whiu has been detained since being sentenced. Mr Whiu also confirmed during the hearing that he has never been released from serving his sentence on the murder charge. It follows

that the warrant conclusively demonstrates that Mr Whiu is currently lawfully detained. Internal prison records are of no legal effect in determining that issue.

Result

[7]The application is dismissed.

Lang J