TORU v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 1158

TORU v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 1158 [21 May2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-249[2021] NZHC 1158UNDER the Habeas Corpus Act 2001IN THE MATTER OF an application for a writ of habeas corpusBETWEEN TEINA NGATOKUVARU TORUApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentTeleconference: 18 May 2021Counsel: D J Perkins and J B Watson for the RespondentJudgment: 21 May 2021Reissued: 10 June 2021JUDGMENT OF CULL J[1] Mr Toru applies to the Court for an order for a writ of habeas corpus. Hisapplication was dated 14 May 2021 and was received by the Registry at approximately4.50 pm on 14 May. The grounds upon which the writ is sought was expressed asfollows:Contract and Commercial Law Act 2017 s 35(1)(a)(b) and in reliance on theHabeas Corpus Act 2001.The signature on the application, however, was a third party, Ms Doe.1 Mr Toru, beingheld at Rimutaka Prison, was the applicant, even though he had not signed theapplication himself.1 For privacy reasons, this is an assumed name.[2] Under s 9 of the Habeas Corpus Act 2001 (the Act) the Registrar must allocatea date for the inter partes hearing of an application that is no later than three workingdays after the date in which the application is filed. Mr Toru, being held at RimutakaPrison, was the applicant, even though he had not signed the application himself.[3] The application came before me as Duty Judge on 17 May and I directed thatthe application be served on the Crown and a teleconference be convened withMr Toru and a representative of the Crown in attendance. The teleconference call wasscheduled urgently for 2.15 pm on Tuesday 18 May 2021. The Registry arranged withthe Department of Corrections a facility for Mr Toru to attend the teleconference callat Rimutaka Prison.[4] The Registry was contacted by the third party, Ms Doe who had filed the habeascorpus application and was the signatory on the application. Ms Doe asked theRegistry if she could attend on the teleconference call. As she was not a party and herstatus was unclear, I declined.[5] Ms Doe emailed the Registry asking if a volunteer worker for a charitable trust,Monica Eastick, the CEO of the Polynesian Embassy and Peter Martin of MāoriRanger Security Division could also be in attendance on the teleconference call.[6] At midday, prior to the teleconference call, Crown Law filed a notice ofopposition to the habeas corpus application and a memorandum setting out thebackground and basis on which Mr Toru was lawfully detained and why hisapplication for the writ of habeas corpus should be dismissed.[7] I directed the Registry that the volunteer worker could join the teleconferencecall and to make contact through the phone number that we had been given by Ms Doe.I record that the Registry attempted to contact the phone numbers sent by Ms Doe, butthe Registry was unsuccessful as the numbers did not appear to be active. Further,email contact with Ms Doe was also problematic.[8] At 2.15 pm, the teleconference operator advised that a prison guard hadinformed her that Mr Toru would not be attending the teleconference call. He refusedto enter the booth at Rimutaka Prison to take the call.[9] I directed the Registry to email Ms Doe the memorandum filed by Crown Lawwith a direction that if she wishes to address the memorandum, she should do so by5 pm Tuesday 18 May. To date, no reply has been received by the Registry.Habeas corpus decision[10] An application for the writ of habeas corpus is a challenge to the legality of aperson's detention.2 The onus is on the Department of Corrections to establish that thedetention is lawful.3[11] In their memorandum signed on behalf of the Chief Executive of theDepartment of Corrections, Crown Counsel set out the basis for Mr Toru's detention.[12] Mr Toru was sentenced by Dobson J on 29 June 2018 to 12 years and ninemonths' imprisonment for convictions involving violent and sexual offending againsthis partner, and attempting to pervert the course of justice.4 Mr Toru had spent 333days in remand by the time he was sentenced. The attached warrants of commitmentsigned by Dobson J record that the applicant was imprisoned for a term of 11 yearsand six months' imprisonment on 29 June 2018.[13] The Chief Executive submits that the warrants demonstrate a lawful basis forMr Toru's detention. Appellate authority supports that submission. In Bennett vSuperintendent, Rimutaka Prison, the Court of Appeal held that once a PrisonSuperintendent or other official produces a committal warrant or other authorisation,the applicant must show why the warrants are not a sufficient answer to hisapplication.5 The Court of Appeal stated:In practice, once a prison superintendent or other official named as therespondent produces a committal warrant or other authorisation it would2 Habeas Corpus Act 2001, s 6.3 Section 14(1).4 R v Toru [2018] NZHC 1598.5 Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 CA at [70].then be necessary for an applicant for habeas corpus to demonstrate that thedocumentation did not in fact provide a lawful justification in the particularcircumstances.[14] The onus, therefore, shifts to Mr Toru to show why those warrants are not alawful basis for his detention. Mr Toru appears to rely on s 35 of the Contract andCommercial Law Act 2017, which is cited as one of the grounds in his brief applicationfor the habeas corpus writ. That provision, however, deals with damages formisrepresentation.[15] Crown Counsel submit that Mr Toru appears to be advancing a species of the"sovereign citizen" argument, where applicants claim their imprisonment is inviolation of their social contract with the State. I accept Counsels' submission thatthese arguments have been consistently rejected by the Courts.6[16] I am satisfied that the warrants of commitment produced by the ChiefExecutive demonstrate a lawful basis for Mr Toru's detention. Mr Toru has not beenable to demonstrate that those warrants do not provide a lawful justification for hisdetention.Result[17] Mr Toru is lawfully detained and his application for a writ of habeas corpus isdismissed.Cull JSolicitors:Crown Law Wellington, for the Respondent6 See Warren v Chief Executive of the Department of Corrections [2017] NZSC 20; and Rangitaawav Chief Executive of the Department of Corrections [2013] NZCA 2.