Ericson v Superintendent of Rimutaka Prison

[2012] NZHC 210

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-335

IN THE MATTER OF     an application for Habeas Corpus

BETWEEN  JOHN FREDERICK ERICSON Applicant

ANDSUPERINTENDENT OF RIMUTAKA PRISON

Respondent

Hearing:         20 February 2012

Appearances: The applicant in person

L Fong for the respondent

Judgment:      20 February 2012

[1]      Mr Ericson, the applicant, pleaded guilty in the High Court on 19 April 2000 to murdering his wife.  He was sentenced to life imprisonment.

[2]      On 17 February 2012 Mr Ericson filed an application for habeas corpus on the basis that the warrant for his imprisonment was illegal because his guilty plea had been obtained in the context of there having been a failure by the Crown to make proper disclosure to him and his defence.

[3]      I heard Mr Ericson’s application for a writ of habeas corpus this morning.  At the end of the hearing I declined that application.   I said I would provide written reasons for my decision.  I now do so.

[4]      In his submissions to me this morning Mr Ericson covered a considerable number of matters, many of which had been previously raised before the Court.  I

ERICSON V SUPERINTENDENT OF RIMUTAKA PRISON HC WN CIV-2012-485-335 [20 February 2012]

note at this point that Mr Ericson has brought a number of proceedings before the

Courts since his conviction.  More particularly:

(a)      on 21 February 2007 the Court of Appeal dismissed an application for special leave to appeal brought by Mr Ericson;[1]

[1] R v Ericson CA CA356/05, 21 February 2007.

(b)on  30  September 2010 Wild J  declined  an  application  for habeas corpus, directing that the substance of Mr Ericson’s complaint at that time involved a challenge to a decision of the Parole Board which was properly the matter of an application for judicial review;[2]

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

(c)      on  2  March  2011  Gendall  J  declined  that  application  for  judicial review by Mr Ericson following a substantive hearing;[3] and

(d)on  22 August  Joe  Williams  J  declined  an  application  for  habeas corpus,   in   respect   of   which   written   reasons   were   issued   on

3 November 2011.[4]

[3] Ericson v New Zealand Parole Board HC Wellington CIV-2010-485-001912, 2 March 2011.

[4] John Frederick Ericson v The Superintendent of Rimutaka Prison HC Wellington CIV-2011-485-

1607, 3 November 2011.

[5]      Mr Ericson has also applied to the Governor-General for the exercise of the

Royal prerogative of mercy, which application has been declined.

[6]      More specifically, this morning Mr Ericson identified a number of documents which, as I understand matters, he has obtained subsequent to his conviction which he now says were not disclosed to him or his defence counsel prior to the entry of his guilty plea.  He says those documents should have been so disclosed and therefore their non-disclosure provides a basis upon which to challenge his guilty plea and subsequent conviction. Those documents comprise:

(a)       a statement to the Police by a Katrina Ann Lulum on 26 August 1999;

(b)      a statement to the Police by a David John Shefford dated 3 September

1999;

(c)       a   report   by   a   Dr   Bill   Gordon,   a   clinical   psychiatrist,   dated

5 November 2009; and

(d)records of blood tests carried out on him at Sunnyside Hospital where he was detained following his wife’s killing, together with other medical reports from Healthlink South and nursing notes from his time at Sunnyside Hospital,

all of which refer or relate in some way to what Mr Ericson maintains is the effect of certain medication he had taken on the day he accepts he killed his wife which, in his view, means that he should not have been convicted of her murder.

[7]      Mr Ericson also complained about the non-disclosure of letters written by Dr David Chaplow, which letters show that Dr Chaplow did not take account of what Mr Ericson says was the effect of that medication on him.

[8]      Mr Ericson  said  that  the  reason  that  the  issue  of  non-disclosure  had  not previously been raised was because of the impact on his ability to advance his case. This inability had been caused by prison authorities destroying his own copies of various materials, which he described as his “legal files”, in searches of his cell in

2006 and again in 2007.  He had complained of that matter to the authorities but he said his complaint had not yet been resolved.  I refer to that issue later.

[9]      Other  matters,  which  do  not  appear  to  involve  issues  of  non-disclosure, referred to by Mr Ericson include the question of the destruction of blood specimens taken from him without him being given a chance to have those specimens analysed, and  the  destruction  of  an  exhibit,  the  axe  the  Crown  said  was  used  to  kill Mr Ericson’s wife.

[10]     I note, at this point, that Mr Ericson acknowledged that this issue of non- disclosure had been raised by him in connection with his application for the exercise

of the prerogative of mercy.  He said however that the issue of non-disclosure had not previously been raised by him in Court proceedings.

[11]     For the Crown, Ms Fong accepted that the issue of non-disclosure may not have been previously focussed on by Mr Ericson.  On that basis, and although it is clear to me that the general gist of Mr Ericson’s complaint over time has been the possible significance of the effect of drugs he says he was taking at the time on his mental condition, I have proceeded on the basis that s 15(1) of the Habeas Corpus

Act 2001 does not preclude this application being made.[5]

[5] Finality of determinations

(1) Subject to the [rights of appeal conferred by section 16 of this Act and to sections 7 to 10 of the Supreme Court Act 2003], the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a  re-examination by the  Court of substantially the  same questions as  those considered by the Court when the earlier application was refused.

[12]     Having said that, and as I think is clear from my description of the core of Mr Ericson’s  complaint  before  me  (namely the  significance  of  the  alleged  non- disclosure for his guilty plea), this application is in substance a challenge to his conviction.  Section 14(2) of the Habeas Corpus Act is clear:

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, the Court

Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b)   a ruling as to bail by a court of competent jurisdiction.

[13]     Accordingly, it is not a matter which can be considered in an application for habeas corpus.  For that reason, I declined Mr Ericson’s application.

[14]     In doing so, I note as follows:

(a)       As noted, Mr Ericson complains that material relating to his defence was removed from his cell by prison staff, he says at the direction of

Crown Law, and destroyed.   He explained that he was only able to

continue with his challenge to his conviction because he had made a second copy of that file, which he had put somewhere in the prison’s nursery, and which he was able to regain possession of in the course of absconding from prison some years ago.  He said that his complaint as to what had happened had never been properly investigated or resolved, and provided me a copy of a letter from the then Minister of Corrections in February 2006 acknowledging receipt of his complaint and referring it to the Department of Corrections.  Whatever may be the merits of this application for habeas corpus, if the fact is that Mr Ericson has made a complaint or complaints about the searches of his cell and the destruction of his records which have not been resolved, they should be.  I ask Ms Fong for the Crown to follow that matter up.

(b)At the end of the hearing Mr Ericson asked me that if the matters he put before me were not properly able to be considered in a habeas corpus application, how might they be considered.    Without commenting on the merits of the matters raised by Mr Ericson in any way, I said that the proper approach would be for him to consider a further application to the Court of Appeal for leave to appeal his conviction on the basis of what he says is this issue of non-disclosure that has not previously been raised before the Courts.

“Clifford J”

Solicitors: Crown Law Office, Wellington for the respondent ([email protected]) Copy to:   Mr J F Ericson, C/- Rimutaka Prison, Upper Hutt.