Ericson v Superintendant of Rimutaka Prison HC Wellington Civ-2011-485-1607

[2011] NZHC 1843

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1607

UNDER  THE HABEAS CORPUS ACT 2011

BETWEEN  JOHN FREDERICK ERICSON Applicant

ANDTHE SUPERINTENDANT OF RIMUTAKA PRISON Respondent

Hearing:         22 August 2011

Counsel:         Applicant in person

G J Robins for Respondent

Judgment:      3 November 2011

Reasons:         3 November 2011

REASONS FOR JUDGMENT OF WILLIAMS J

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 2:00pm on the 3rd November 2011.

[1]      On 19 April 2000 Mr Ericson pleaded guilty in the High Court to murdering his wife.  Following his guilty plea he was sentenced to life imprisonment.

[2]      On 18 August 2011, Mr Ericson filed an application for habeas corpus on the ground that his “warrant of imprisonment is illegal”.   Following extensive submissions from Mr Ericson and brief submissions from Crown counsel, at the hearing  on  22  August  2011,  I  informed  Mr  Ericson  that  his  application  was

dismissed.    I  added  however  that  if,  on  reviewing  the  file,  I  felt  that  it  was

JOHN FREDERICK ERICSON V THE SUPERINTENDANT OF RIMUTAKA PRISON HC WN CIV-2011-

485-1607 3 November 2011

appropriate to recommend that further or other steps should be taken in this matter in another forum, I would consider making such a recommendation.  I now provide my reasons on the substantive application together with reasons as to why, in my view, a recommendation of the kind indicated is inappropriate.

[3]      Fundamentally, Mr Ericson sought to challenge his conviction.  He accepted that he was subject of valid warrant of imprisonment.   Rather, he said that the conviction  underlying  that  warrant  was  wrong  in  the  sense  that  there  was  an evidential basis for challenging that conviction and it required proper investigation. In particular, Mr Ericson said he cannot recall the offending, and that he has obtained an expert report to the effect that prescription drugs that he may have been taking at the  time  of  the  offending  could  have  resulted  in  some  kind  of  automatism  or otherwise  affected  his  state  of  mind.     Mr  Ericson  said  that  limited  police investigation of the murder (because of his guilty plea), the passage of time since, and the abbreviated appeal process following his guilty plea, have prevented him from obtaining comprehensive medical evidence with which to challenge his conviction by the usual track.

[4]      An application for habeas corpus cannot be used to challenge a conviction on its merits.  Section 14(2) of the Habeas Corpus Act 2001 provides that:

A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a)       a conviction of an offence by a court of competent jurisdiction ...

[5]      In any event, Mr Ericson has previously raised concerns about his medical state. These issues are not new.

[6]      On 21 February 2007, the Court of Appeal refused Mr Ericson’s application for special leave to appeal against his conviction.[1]   Mr Ericson principally argued that his guilty plea was made on the wrong belief that he had no choice in the matter. He found this belief, he says, because of pressure from his lawyer and his family.

[1] R v Ericson [2007] NZCA 18.

The Court of Appeal however was satisfied that Mr Ericson knowingly and properly

entered his plea.   The court said Mr Ericson’s state of mind was specifically investigated:[2]

[2] At [10] - [12].

...  From the laying of the charge in July 1999 through to late March 2000

Mr Hall and the Crown engaged a range of forensic psychiatrists, psychologists and neurologists to examine Mr Ericson.  Mr Hall took every

possible step to ascertain whether any defence could be mounted based on

lack  of  mens  rea,  including  insanity  or  automatism (in  whatever  form). Mr Ericson was seen by Dr Gordon at Sunnyside Hospital, Craig Pinnel, a senior psychologist, Dr Anderson, a consultant neurologist, Dr Brinded a forensic psychiatrist, Mr Mossman, a neurologist, and Dr Chaplow also a forensic psychiatrist.

...   On 30 March 2000 Mr Hall received a final report from Dr Brinded which clearly ruled out any defence based on psychological, psychiatric or neurological evidence of lack of mens rea.

[7]      Three  and  a  half  years  later  on  30  September  2010,  Wild  J  refused  an application for habeas corpus, on the basis that Mr Ericson’s conviction could not be challenged (s 14(2)), and that his complaints about refusal of parole could only be addressed by judicial review.[3]   On 2 March 2011, Gendall J refused the subsequent application for judicial review, on the basis that the parole board’s decision was lawful.[4]   In the course of his decision, Gendall J recorded that Mr Ericson seemed to make a further application for habeas corpus, again challenging his conviction. Relevantly, Mr Ericson’s submissions included reference to:[5]

... the taking of medication and drugs at the time of the alleged murder which conflict with other reports (stating he was then on no medication).   He referred to a report of Dr Gordon, the Clinical Director of the Regional Forensic Psychiatric Service at Healthlink South.

[3] Ericson v Department of Corrections HC Wellington CIV-2010-485-1912, 30 September 2010.

[4] Ericson v Parole Board HC Wellington CIV-2010-485-1912, 2 March 2011.

[5] At [12].

[8]      Mr Ericson also placed before the court a 527 page document containing evidence and submissions on the validity of his conviction and his application for the exercise of the Royal Prerogative of Mercy.   One of the matters covered by that document was “medication”.[6]   Gendall J dismissed those matters, as any application

for  habeas  corpus  on  that  basis  could  not  succeed,[7]   and  the  submissions  were

irrelevant to the judicial review.[8]    I understand that the application for mercy was unsuccessful.

[6] At [22].

[7] At [3].

[8] At [23].

[9]      I have since taken the opportunity to consider the advice given by officials on Mr Ericson’s application for mercy as this was provided in the bundle to Gendall J. The report reflects that it was known to be a possibility that Mr Ericson was taking medication on the day of the killing and that it might have affected his state of mind. It had therefore been the subject of medical assessments prior to his conviction.  In particular, it was known that Mr Ericson had been treated by Dr Johnston at Wairau Hospital for toothache, and that he was taking medication for that.  There was also evidence that Mr Ericson had been treated by a dentist, though the dentist him or

herself had not been identified.[9]  Mr Ericson thought that Dr Johnston had prescribed

him Acupan (analgesic pain relief).  Mr Ericson had reported Acupan and two other medications to Dr Gordon, the forensic psychiatrist.  Dr Gordon concluded that there was nothing untoward about them individually or in combination.[10]

[9] Mr David Shefford provided a statement to police in September 1999 to the effect that Mr Ericson told him the day before the killing that he had taken two pills prescribed by a dentist, which made him

feel like a “zombie”, on 28 and 29 July. Mr Shefford however told police that he could not see any effects of the pills. Mr Sheffield also recalled Mr Ericson mentioning (he was not sure when) that he had visited the hospital for toothache. Mr Ericson had been asked about medication on the day of the killing: answering “no” to taking any during the 111 call; and then stating that he was taking

“Acupan” for the toothache during a police medical examination but without disclosing when or in

what quantity. Mr Ericson raised the issue of medication with a psychiatrist, Dr Gordon, in

September 1999.

[10] Dr Gordon’s report on 5 November 1999 says that Mr Ericson’s said that he took two tablets in the morning for toothache “which had been prescribed for his wife”. Dr Gordon said that those appeare d

to be Voltaren. Mr Ericson also reported that he took “two white pills” in the afternoon, which he had

previously been given at Wairau Hospital. The Hospital confirmed that Mr Ericson was given Codeine. Finally, Mr Ericson said that he took two Acupan tablets in the evening. The possible side effects of those tablets would not include any loss of control or delirium. Dr Gordon concluded that there was nothing untoward in either the individual drugs or the combination of them in the period prior to the killing.

[10]     The only “fresh” evidence (obtained between his conviction in 2000 and the appeal in 2007) was a letter from Dr Johnston dated 10 April 2002 that confirmed that he prescribed an antibiotic Amoxil (x15) and Codeine (x2) on 1 May 1999. Mr Ericson took one of each at the hospital, and was told to take more that night as required.  Dr Johnston gave Mr Ericson a prescription for another painkiller Paradex (x30),  which  Mr  Ericson  was  told  to  obtain  the  following  day.    He  also  told

Mr Ericson to see a dentist.

[11]     The prerogative advice concluded that Dr Johnston’s updated advice did not call into question Mr Ericson’s conviction.[11]     It related to medication prescribed three months prior to the killing; there was no evidence linking that medication to the day of the killing; there was no evidence suggesting any adverse effect of that medication (if taken); and while it seemed likely that Mr Ericson saw a dentist, there was still no evidence of what medication may have been prescribed, and whether

that medication would have had any adverse effect.  In short, there was nothing new to go on.

[11] Further advice was issued in August 2009, in response to correspondence from Mr Ericson about the 2008 advice. The writer addressed three factual challenges by Mr Ericson to the advice on medication, and dismissed them.

[12]     Accordingly, for the purposes of the arguments before me, it is clear that Mr Ericson has raised the issues of medication and state of mind at length in the past. Those issues have been considered and dismissed.  Mr Ericson has provided no basis upon which I should reach a different view to those consistently reached by earlier tribunals.    Nor  is  there  any basis  upon  which  I could  properly  suggest  further investigation  or  other  action.    At  the  moment,  there  are  only  suggestions  that Mr Ericson may have been taking other medication on the day of his wife’s death, and barely a suggestion of what effect specific medication may have had.  As others

have already told him, that is not enough.

Williams J

Solicitors:

J F Ericson, c/- Rimutaka Prison, Private Bag 47901, Trentham

Crown Law, Wellington