WHICHMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 5

WHICHMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 5 [11January 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-20[2019] NZHC 5BETWEEN GEORGE WHICHMANApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 10 and 11 January 2019Appearances: Applicant in personD Taylor for RespondentJudgment: 11 January 2019JUDGMENT OF LANG J[on application for writ of habeas corpus]This judgment was delivered by me on 11 January 2019 at 11 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Whichman is currently remanded in custody awaiting re-trial in the DistrictCourt on firearms and domestic violence charges. His remand follows a successfulappeal to the Court of Appeal after he had earlier pleaded guilty to the charges andbeen sentenced to four years imprisonment.1[2] Mr Whichman now applies for a writ of habeas corpus directing that he bereleased from prison. He says there were irregularities in the process by which he wasremanded in custody, and that he has important personal issues he needs to attend toon his release.[3] In its judgment delivered on 22 November 2018 the Court of Appeal directedthat all issues in relation to bail were to be dealt with by the District Court.2Mr Whichman subsequently applied for EM bail in the District Court but hisapplication was declined by Judge A-M Bouchier on 12 December 2018.Mr Whichman alleges Judge Bouchier had no power to sign a warrant remanding himin custody after she declined to grant him bail because she is now a retired Judge.[4] This argument must fail because Judge Bouchier was appointed as an acting ortemporary Judge of the District Court by warrant dated 20 October 2016 for a periodof two years commencing on 1 March 2017.[5] In any event matters have now moved on. The warrant signed byJudge Bouchier on 12 December 2018 has now been overtaken by a further warrantsigned by Judge Field on 9 January 2019. The Judge signed that warrant afterMr Whichman renewed his application for EM bail. Mr Whichman advised me duringthe hearing today that he has lodged an appeal against this decision and he understandsthe appeal will be heard in this Court on 16 January 2019.[6] Mr Whichman argues the warrant issued by Judge Field is invalid because it istainted by the earlier warrant issued by Judge Bouchier. That argument must fail forthe reasons I have already given.1 Whichman v R [2018] NZCA 519.2 Whichman v R, above n 1, at [65].[7] Mr Whichman also argues the warrant is invalid because it states that he hasbeen convicted and sentenced when that is clearly not the case. I accept that thewarrant contains this incorrect information. The important feature of the warrant,however, is that it advises the Manager of the Mt Eden Corrections Facility that thehearing of the charges against Mr Whichman has been adjourned, and thatMr Whichman has been remanded in custody for the period of the adjournment. Thatinformation is plainly correct, and provides the necessary authority for Mr Whichmanto be detained in custody during the period of the adjournment.[8] I am therefore satisfied there is no basis on which the Court could entertain thepresent application given the existence of the warrant signed by Judge Field.Mr Whichman will need to pursue any complaint against the substantive outcome ofthe bail hearings in the District Court by way of his appeal. The application for a writof habeas corpus is dismissed.Lang JSolicitors:Crown Solicitor, Auckland