Huata v Chief Executive, Department of Corrections

[2013] NZHC 3569

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2013-441-000432 [2013] NZHC 3569

UNDER  the Habeas Corpus Act 2001

IN THE MATTER             of an application for a writ of habeas corpus

BETWEEN  HOMBRE FRASER HUATA Applicant

ANDCHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:                   24 December 2013 (at Wellington) Counsel:     E R Fairbrother for Applicant

F E Cleary for Respondent

Judgment:                24 December 2013

JUDGMENT OF COLLINS J

Introduction

[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.

HUATA v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2013] NZHC 3569 [24 December 2013]

[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 have occurred 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 annexed to 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 Mr Johnstone’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 Board agreed 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 favourable view 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 been made 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 unlawfully detained.  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 so unreasonable 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 the Parole Board’s decision was in fact unreasonable.  That is a significant obstacle to Mr Huata’s application because it is well established that applications for writs of habeas 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 a

review of the Chairman’s decision.  A review can take place under s 67 of the Parole

1      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 of an 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.

Solicitors:

Fairbrother Family Law, Napier for Applicant

Elvidge & Partners, Napier for Respondent

D B Collins J