Mitchell v Chief Executive of the Department of Corrections

[2018] NZCA 14

IN THE COURT OF APPEAL OF NEW ZEALAND

CA N/A
[2018] NZCA 14

BETWEEN	KERRYN MITCHELL Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Judgment:

(On the papers)

15 February 2018 at 2.30 pm

JUDGMENT OF WINKELMANN J
(Review of Registrar’s decision)

The application for review of the Registrar’s decision to reject the new notice of appeal is declined.

____________________________________________________________________

REASONS

1. On 13 December 2017, the Registrar rejected for filing Ms Mitchell’s proposed appeal on the grounds that the matters raised in it had already been determined in appeal CA197/2017.  Ms Mitchell now seeks to review the Registrar’s decision. 

Background

1. On 20 October 2017, this Court issued a judgment in an appeal commenced by Ms Mitchell against the Chief Executive of the Department of Corrections.[1]  Ms Mitchell contended in that appeal that a District Court Judge was without jurisdiction when he imposed special release conditions upon her, more than six months after her sentence had expired.

   [1]Mitchell v Chief Executive of the Department of Corrections [2017] NZCA 475.

2. The Chief Executive initially challenged this Court’s jurisdiction to hear the appeal, but ultimately accepted that there was jurisdiction to bring such an appeal under s 296 of the Criminal Procedure Act 2011.  The Chief Executive agreed that the appeal should be treated as an appeal under s 296.

3. In the judgment dated 20 October 2017 in CA197/2017, leave to appeal under s 296 of the Criminal Procedure Act was granted.[2]  In the same judgment, the appeal was determined in Ms Mitchell’s favour.  The question of law raised on appeal was answered as follows:[3]

   There is no jurisdiction to impose special release conditions under s 94 of the Sentencing Act 2002 beyond the time limits imposed by s 93 of that Act.  Accordingly, Judge Rowe had no jurisdiction to impose special conditions on Ms Mitchell on 29 July 2016 when the relevant sentence expiry date was 2 December 2015.

   [2]At [33].

   [3]At [34].

4. Ms Mitchell has now sought to file an appeal arguing there was no jurisdiction to impose special release conditions and that Judge Rowe had no jurisdiction to impose special conditions. 

Application for review of the Registrar’s decision

1. In support of her application to review the Registrar’s decision, Ms Mitchell contends that the judgment of 20 October 2017 dealt only with the issue of leave.  In this she is mistaken.  The judgment both granted leave, and allowed the appeal.  The very issues that Ms Mitchell now seeks to raise in this new appeal have therefore already been determined.  Accordingly, the Registrar was correct to refuse to accept the appeal for filing on the grounds that the matters Ms Mitchell seeks to appeal have already been determined in appeal CA197/2017.  In short, Ms Mitchell already has the relief she seeks.  To allow her to pursue this new appeal would be a waste of her time and effort, and would moreover, constitute an abuse of process.

Result

1. Accordingly, the application for review of the Registrar’s decision to reject the new notice of appeal is declined.