SAWAL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3 [7 January 2021]

SAWAL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZHC 3[7 January 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-000009[2021] NZHC 3UNDER the Habeas Corpus Act 2001BETWEEN THUVAN SAWALApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentOn the papersJudgment: 7 January 2021JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 7 January 2021 at 1.00 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Thuvan Sawal has tendered for filing an application for a writ of habeas corpus.The Registrar has referred the application to me under High Court Rule 5.35A.[2] Mr Sawal is detained in prison. Mr Sawal does not challenge the legality ofhis detention. Rather, Mr Sawal claims that he is suffering from an untreatedpsychiatric condition. He wishes to be "sectioned" (his word) to a psychiatric facility(the Mason Clinic) for diagnosis and treatment. His application seeks an order for "hisimmediate release to the Mason Clinic placing his sentence under suspension until orunless the Mason Clinic clears him to be returned to serve out his sentence".[3] The purpose of a writ of habeas corpus is to challenge the legality of a person'sdetention: s 6 of the Habeas Corpus Act 2001. Mr Sawal's application does not makeany such challenge. He is instead asking for an order that he be released fromadmittedly lawful detention.[4] There is therefore no basis upon which this Court could grant a writ of habeascorpus. His application is doomed to fail.[5] It is apparent from his application that Mr Sawal has asked the prisonauthorities for treatment for his alleged psychiatric condition, and is dissatisfied withtheir responses. Mr Sawal may (or may not) have avenues to challenge theirresponses, whether by way of judicial review, under the Mental Health (CompulsoryAssessment and Treatment) Act 1992, or otherwise. But there is no basis upon whichhe can use the habeas corpus remedy to do so.[6] For these reasons the application for a writ of habeas corpus is plainly an abuseof process. I strike out the application under High Court Rule 5.35B.[7] Mr Sawal has, under High Court Rule 5.35B(3), the right to appeal against thisparticular decision.[8] I direct the Registrar to serve a copy of this decision on the Chief Executive ofthe Department of Corrections._____________________________Campbell J