Sawal v Chief Executive of the Department of Corrections

[2021] NZHC 3

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000009

[2021] NZHC 3

UNDER

the Habeas Corpus Act 2001

BETWEEN

THUVAN SAWAL

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

On the papers
Judgment:	7 January 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 7 January 2021 at 1.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

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

[7 January 2021]

[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 of his detention. Rather, Mr Sawal claims that he is suffering from an untreated psychiatric 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 “his immediate release to the Mason Clinic placing his sentence under suspension until or unless 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’s detention: s 6 of the Habeas Corpus Act 2001. Mr Sawal’s application does not make any such challenge. He is instead asking for an order that he be released from admittedly lawful detention.

[4]                 There is therefore no basis upon which this Court could grant a writ of habeas corpus. His application is doomed to fail.

[5]                 It is apparent from his application that Mr Sawal has asked the prison authorities for treatment for his alleged psychiatric condition, and is dissatisfied with their responses. Mr Sawal may (or may not) have avenues to challenge their responses, whether by way of judicial review, under the Mental Health (Compulsory Assessment and Treatment) Act 1992, or otherwise. But there is no basis upon which he can use the habeas corpus remedy to do so.

[6]                 For these reasons the application for a writ of habeas corpus is plainly an abuse of 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 this particular decision.

[8]                 I direct the Registrar to serve a copy of this decision on the Chief Executive of the Department of Corrections.

Campbell J