Whichman v Chief Executive of the Department of Corrections

[2019] NZHC 5

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-20

[2019] NZHC 5

BETWEEN

GEORGE WHICHMAN

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

10 and 11 January 2019

Appearances:

Applicant in person

D Taylor for Respondent

Judgment:

11 January 2019

JUDGMENT OF LANG J

[on application for writ of habeas corpus]

This judgment was delivered by me on 11 January 2019 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

WHICHMAN v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 5 [11
January 2019]

[1]                   Mr Whichman is currently remanded in custody awaiting re-trial in the District Court on firearms and domestic violence charges. His remand follows a successful appeal to the Court of Appeal after he had earlier pleaded guilty to the charges and been sentenced to four years imprisonment.1

[2]                   Mr Whichman now applies for a writ of habeas corpus directing that he be released from prison. He says there were irregularities in the process by which he was remanded in custody, and that he has important personal issues he needs to attend to on his release.

[3]                   In its judgment delivered on 22 November 2018 the Court of Appeal directed that all issues in relation  to  bail  were  to  be  dealt  with  by  the  District  Court.2 Mr Whichman subsequently applied for EM bail in the District Court but his application  was  declined  by  Judge  A-M   Bouchier   on   12   December   2018. Mr Whichman alleges Judge Bouchier had no power to sign a warrant remanding him in custody after she declined to grant him bail because she is now a retired Judge.

[4]                   This argument must fail because Judge Bouchier was appointed as an acting or temporary Judge of the District Court by warrant dated 20 October 2016 for a period of two years commencing on 1 March 2017.

[5]                   In any  event  matters  have  now  moved  on.  The  warrant  signed  by  Judge Bouchier on 12 December 2018 has now been overtaken by a further warrant signed by Judge Field on 9  January 2019.  The  Judge  signed that  warrant  after  Mr Whichman renewed his application for EM bail. Mr Whichman advised me during the hearing today that he has lodged an appeal against this decision and he understands the appeal will be heard in this Court on 16 January 2019.

[6]                   Mr Whichman argues the warrant issued by Judge Field is invalid because it is tainted by the earlier warrant issued by Judge Bouchier. That argument must fail for the reasons I have already given.

1      Whichman v R [2018] NZCA 519.

2      Whichman v R, above n 1, at [65].

[7]                   Mr Whichman also argues the warrant is invalid because it states that he has been convicted and sentenced when that is clearly not the case. I accept that the warrant contains this incorrect information. The important feature of the warrant, however, is that it advises the Manager of the Mt Eden Corrections Facility that the hearing  of  the  charges  against  Mr  Whichman  has  been  adjourned,  and  that   Mr Whichman has been remanded in custody for the period of the adjournment. That information is plainly correct, and provides the necessary authority for Mr Whichman to be detained in custody during the period of the adjournment.

[8]                   I am therefore satisfied there is no basis on which the Court could entertain the present application given the  existence  of  the  warrant  signed  by  Judge  Field.  Mr Whichman will need to pursue any complaint against the substantive outcome of the bail hearings in the District Court by way of his appeal. The application for a writ of habeas corpus is dismissed.

Lang J

Solicitors:
Crown Solicitor, Auckland