GEORGE WHICHMAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZHC 380

GEORGE WHICHMAN v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018]NZHC 380 [9 March 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-000367[2018] NZHC 380IN THE MATTER of an application for a Writ of HabeasCorpusBETWEEN GEORGE WHICHMANApplicantAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 9 March 2018Appearances: The Applicant in PersonA Ewing for the RespondentJudgment: 9 March 2018JUDGMENT OF HINTON JThis judgment was delivered by me on 9 March 2018 at 5.15 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Crown Law, AucklandParty:G Whichman[1] On 8 March 2018, the applicant applied for a writ of habeas corpus.[2] Mr Whichman has been convicted and sentenced in the District Court onfirearms charges and domestic violence charges.[3] He says he has been unlawfully detained for a number of reasons, the principalreasons being that:(a) He pleaded guilty following a sentence indication for which theDistrict Court Judge had no jurisdiction and therefore everythingarising from it is unlawful;(b) He pleaded guilty under pressure from the Judge and/or his counsel.(c) The Judge was biased and misled him.[4] As a consequence of one or more than one of these matters, Mr Whichman saysthat the conviction, sentence and consequential warrant of committal are null and void.[5] As an additional point, Mr Whichman says that the warrant is for Mt EdenPrison, not Auckland Regional Prison, where he has been held since arrest and wherehe is not provided with any programmes or other reasonable assistance.[6] The law is clear that the application for a writ of habeas corpus has to bedismissed. As Ms Ewing submitted, the matter is put beyond doubt by theSupreme Court decision of Wallace v Chief Executive of Department of Corrections.1Mr Wallace was convicted of offences involving violence and was serving a sentenceof five years and three months' imprisonment. He appealed against his conviction andsentence. While the appeal was awaiting hearing, he applied to the High Court for awrit of habeas corpus. The High Court declined to issue a writ, relying on s 14(2)(a)of the Habeas Corpus Act 2001. Both the Court of Appeal and then the Supreme Courtupheld that decision. In the words of the Supreme Court on dismissing the applicationfor leave to appeal:1 Wallace v Chief Executive of Department of Corrections [2012] NZSC 16.Whilst the conviction and sentence stand, habeas corpus is not available tochallenge the imprisonment.[7] The Court concluded by saying that the procedural and other matters raised byMr Wallace in his submissions could not overcome that fundamental point and theproposed appeal therefore could not succeed.[8] The same position applies here. Mr Whichman has filed an appeal and anapplication for judicial review and these are awaiting hearing. In the meantime, theconviction and sentence stand and habeas corpus is not available to challenge theimprisonment.[9] Mr Whichman's point regarding the warrant specifying Mt Eden Prison isanswered by s 37(2) of the Corrections Act 2004 which provides that any committalorder in any specified prison is sufficient authority for detention in any other prison.[10] I explained to Mr Whichman that he did have other options, for example, hecould ask the Courts dealing with his judicial review and appeal for a priority hearingunder the rules.[11] The application for a writ of habeas corpus is dismissed.---------------------------------------------------Hinton J