Whichman v Department of Corrections [2018] NZHC 1296 (1 June 2018)

Last Updated: 6 June 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1029 [2018] NZHC 1296

BETWEEN	GEORGE WHICHMAN Applicant
AND	DEPARTMENT OF CORRECTIONS Defendant

Hearing:	1 June 2018
Counsel:	Appellant in person M Mortimer for Defendant
Judgment:	1 June 2018

JUDGMENT OF WHATA J

This judgment was delivered by me on 1 June 2018 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Meredith Connell, Auckland

WHICHMAN v DEPARTMENT OF CORRECTIONS [2018] NZHC 1296 [1 June 2018]

[1] I have before me a purported application for habeas corpus. The central claim made is that Mr Whichman has been unlawfully detained in solitary confinement for 18 hours a day and for lengthy periods and otherwise mistreated while serving a sentence. In support of his application, he refers to the New Zealand Bill of Rights Act and, in particular, ss22, 23(5), 17 – 19 and 10. He also refers to arts 9, 18 and 19 of the International Covenant on Civil and Political Rights. The majority of those provisions deplore unlawful and/or arbitrary detention.

[2] The present application follows from an application made on 8 March 2018. As happened in that case, the application for a writ of habeas corpus has to be dismissed.¹ Mr Whichman was convicted and sentenced in the District Court on firearms charges and domestic violence charges and is presently serving that sentence. While there is a conviction and sentence, habeas corpus is not available to challenge the imprisonment.² Previous authorities suggest judicial review is a more appropriate way to challenge solitary confinement than a writ of habeas corpus. As the Court of Appeal in Ericson v Department of Corrections stated:³

The writ is not appropriate for challenging the lawfulness of a conviction or the conditions under which an inmate sentenced to imprisonment is detained.

[3] Accordingly, the application is dismissed.

¹ Whichman v Chief Executive of Department of Corrections [2018] NZHC 380.

² Wallace v Chief Executive of Department of Corrections [2012] NZSC 16.

³ Ericson v Department of Corrections [2014] NZCA 118, [2014] NZAR 540 at [4].