Wilson v Chief Executive, Department of Corrections

[2012] NZHC 2020

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-001722 [2012] NZHC 2020

IN THE MATTER OF     the Habeas Corpus Act 201

BETWEEN  STEWART MURRAY WILSON Applicant

ANDTHE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS First Respondent

ANDTHE NEW ZEALAND PAROLE BOARD Second Respondent

Hearing:         10 August 2012

Appearances: A J McKenzie for Applicant

C J Lange for First and Second Respondents

Judgment:      10 August 2012

JUDGMENT OF FOGARTY J

Solicitors:

Raymond Donnelly & Co., PO Box 533, Christchurch Mail Centre, Christchurch 8140

Copy to:

A J McKenzie, PO Box 13 968, Christchurch

WILSON V THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS HC CHCH CIV-2012-409-

001722 [10 August 2012]

[1]      This is an application for remedy under the writ of Habeas Corpus.   The appellant is current in prison and there is no suggestion that he is not lawfully detained in prison.  He is due to be released from prison on Wednesday 29 August. The purpose of this application is to challenge the special conditions imposed by the Parole Board upon his release.

[2]      In my view it is not possible to challenge these conditions by way of an application for writ of Habeas Corpus.

[3]      The Habeas Corpus Act 2001 was not intended to substantially change the law on Habeas Corpus.  As s 5 of the Act says, its purpose is to reaffirm the historic and constitutional purpose of the writ of Habeas Corpus as a vital means of safeguarding individual  liberty.   The foundation  of an  application  for  a writ  of Habeas Corpus is that a person is in fact at the time the application is made, unlawfully detained. This is not the situation here.

[4]      Accordingly, there is no basis for consideration of the application of writ of Habeas Corpus.  It is not necessary for me to make a decision as to whether or not there would be any basis for the writ of Habeas Corpus were a person to be released under special conditions.

[5]      The  substance  of  the  matter  is,  however,  that  the  applicant  wishes  to challenge some of the special conditions of parole to be imposed by the Parole Board.   The proceedings by which that challenge is pursued is by way of an application  for  judicial  review  of  the  decision  of  the  Parole  Board.     These proceedings are now converted to being one of an application for judicial review. The intituling will be amended accordingly to refer to the Judicature Amendment Act rather than the Habeas Corpus Act.

[6]      The  applicant  is  to  file  a  statement  of  claim  in  the  usual  way  and

Mr McKenzie has advised that he will be filing that by Tuesday of next week, 14

August.

[7]      Mr  Lange appearing  for both  the Chief Executive of the  Department  of Corrections  and  the  New  Zealand  Parole  Board  has  given  a  best  endeavours assurance that a statement of defence will be filed as soon as possible after the receipt of the statement of claim. The case is adjourned to Monday 20 August before Williams J.   This is for call.   The Judge will then consider any applications from either party as to the next steps in these proceedings.

[8]      I wish to make it clear that there is no obligation on the first and second respondents to have filed their statements of defence by Monday 20 August.

[9]      Costs are reserved.