HUATA v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 3569

HUATA v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 3569 [24 December 2013]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYCIV-2013-441-000432[2013] NZHC 3569UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeascorpusBETWEEN HOMBRE FRASER HUATAApplicantAND CHIEF EXECUTIVE, DEPARTMENTOF CORRECTIONSRespondentHearing: 24 December 2013 (at Wellington)Counsel: E R Fairbrother for ApplicantF E Cleary for RespondentJudgment: 24 December 2013JUDGMENT OF COLLINS JIntroduction[1] The question I have to consider is whether Mr Huata should be released from prison pursuant to s 14(1A)(b) of the Habeas Corpus Act 2001 (the Habeas Corpus Act).Context[2] On 19 December 2013 the Chairman of the Parole Board, the Hon J W Gendall QC made an interim recall order under s 62(1) of the Parole Act 2002 (the Parole Act). That order required Mr Huata to be detained in custody pending determination of an application to recall Mr Huata. The application to recall Mr Huata was made by Mr Johnstone, a probation officer in Napier.[3] In his supporting affidavit, Mr Johnstone explains:(1) On 3 March 2006 Mr Huata was sentenced to nine years'imprisonment for attempted murder; and(2) Mr Huata was released on parole on 22 March 2010. He is liable to be recalled to prison up until 10 August 2014.[4] Mr Johnstone's affidavit sets out details of an incident that is said to haveoccurred on 21 November 2013 during which it is said he abused Child, Youth and Family staff members, including social workers and solicitors. Mr Huata was charged with offensive behaviour. A copy of the police summary of facts is annexedto Mr Johnstone's affidavit.[5] Mr Huata was banned from the Napier Child Youth and Family premises on 9 December 2013, allegedly because of concerns about the risks he poses to the safety of staff.[6] Mr Johnstone explains in his affidavit that on 18 December 2013 he received information from police alleging Mr Huata had assaulted his former partner on 16 October 2013. A copy of the police job sheet and a photograph are annexed to MrJohnstone's affidavit. An audio recording was made of that incident. Mr Johnstone has a copy of that recording but no transcript has been made available to counsel or the Court.[7] Mr Johnstone also explained in his affidavit Mr Huata had convictions on 3 February 2011 and on 2 May 2012 for contravening a protection order. He was convicted and discharged in relation to the first of those incidents and fined $400 in relation to the second of those incidents. On the basis of this information Mr Johnstone informed the Chairman of the Parole Board that Mr Huata posed an undue risk to others, including his former partner. The Chairman of the Parole Boardagreed and issued a warrant for Mr Huata's arrest and his interim recall order.Basis of the habeas corpus application[8] Mr Huata has sworn an affidavit in support of his application for a writ of habeas corpus. Mr Huata explains that he and his former partner had had a number of relationship issues that were fully canvassed by the Family Court in a judgment of Judge Callinicos delivered on 22 July 2013. A reading of that judgment reveals Judge Callinicos regarded Mr Huata favourably and that he had a less favourableview of Mr Huata's former partner. Mr Huata says that if the assessment made by Judge Callinicos of him and his former partner's roles in their relationship had beenmade available to the Chairman of the Parole Board, then the Chairman of the Parole Board would inevitably have not issued the interim recall order.[9] Mr Huata is also concerned that the effect of the interim recall order is that his 14 year old son is left without day-to-day care over the Christmas/New Year period.Assessment[10] The writ of habeas corpus provides a remedy when a person is unlawfullydetained. Mr Huata's application challenges the reasonableness of the decision made by the Chairman of the Parole Board. He says the Chairman's decision was sounreasonable that it was unlawful and that it was unreasonable because the Chairman did not have available to him the information that Mr Huata relies upon in support of his application. However, Mr Huata must first demonstrate that the Chairman of theParole Board's decision was in fact unreasonable. That is a significant obstacle toMr Huata's application because it is well established that applications for writs ofhabeas corpus are not the vehicle for litigating the reasonableness of decisions of the Parole Board or the Chairman of the Parole Board.1[11] Mr Huata's concerns about the reasonableness of the decision of the Chairman of the Parole Board can be fully canvassed and explored by way of areview of the Chairman's decision. A review can take place under s 67 of the Parole1 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 (CA) at [6] and Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).Act, and as I understand it a review must occur between 14 January 2014 and 31 January 2014.[12] On its face Mr Huata's detention is lawful. He has been detained because ofan order issued by the Chairman of the Parole Board. While that decision in itself may be amenable to review under s 67 of the Parole Act, it is not in my assessment amenable to an application for a writ of habeas corpus.Conclusion[13] The application is dismissed.________________________D B Collins JSolicitors:Fairbrother Family Law, Napier for ApplicantElvidge & Partners, Napier for Respondent