Palmer v Superintendent, Auckland Prison, Albany HC Auckland M753-Sw01

[2001] NZHC 442

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
M.753-SW01

BETWEEN GRAHAM ASHLEY ROBERT PALMER
Plaintiff

AND

THE SUPERINTENDENT AUCKLAND PRISON ALBANY
Defendant

Hearing: 1 June 2001

Counsel: Plaintiff in Person Mr P. Dean for Defendant

Judgment: 1 June 2001

ORAL JUDGMENT OF LAURENSON J.

[1] This is an application for the issue of a writ of Habeas Corpus ad subjiciendum, ex debito justitiae.

[2] The applicant, Mr Palmer, is a serving prisoner, he having been sentenced to preventive detention on 7 April 2000 by the then Honourable Justice Cartwright. The applicant had previously been found guilty by a jury in the High Court at Auckland on 7 October 1999 in respect of four crimes, namely inducing an indecent act s.134 of the Crimes Act 1961; sexual violation by unlawful sexual connection (2) s.128 Crimes Act 1961; performing an indecent act with intent to offend, s.126 Crimes Act 1961.

[3] He was represented by counsel at trial. He appealed unsuccessfully to the Court of Appeal on 19 February 2001, the decision being delivered on 8 March 2001. Once again he was represented by counsel on that occasion.

[4] The present application was filed in this Court on 29 May 2001. Copies of the application and supporting affidavits were served at the Crown Solicitor’s office the same day. Before the matter was called before me at 10 a.m. today I was advised by the Registrar that no counsel from the Crown office was present. I requested the Registrar to telephone the Crown office to ascertain the position. As a result Mr Dean was present in Court when the matter was called later in the morning. Mr Dean advised that he had no instructions from the Superintendent of the Auckland Prison at Albany, and nor had he been able to locate any papers. At that point he therefore appeared as a matter of courtesy to assist the Court.

[5] The applicant appeared in handcuffs. I authorised the removal of these during the course of the hearing. In attendance was a Mr B.A. Jacobson who advised the Court he appeared as a McKenzie Friend. According to a card attached to the application on the Court file Mr Jacobson -

[a] Was in business as Brian Jacobson & Associated Consultants, Design and Planning Services;

[b] Had filed an affidavit in support of the application;

[c] Had filed a further affidavit in relation to the filing of the application and service of same at the Crown Solicitor’s office.

[6] I therefore directed that he should retire behind the Bar until his position was clarified.

[7] I indicated to the applicant that I was not disposed to hear the matter without the defendant being represented and therefore proposed that the matter be adjourned until 2.15 p.m. Mr Dean indicated this should give him time to obtain instructions. The applicant did not object to the adjournment and further stated thus would enable him to arrange for a solicitor, Mr Cagney, to be present. Mr Cagney was apparently involved in another Court at the time. Mr Jacobson enquired whether the ten deponents in support of the application would be required. I informed him they would not be required.

[8] Having earlier indicated to the applicant that from my reading of the file the present application was inappropriate, given his status as a serving prisoner, and having the right to apply, pursuant to s.406 of the Crimes Act 1961, for the matter to be referred to the Governor General with a view to obtaining a further appeal to the Court of Appeal, the applicant submitted this was not open to him in the present case because the present Governor General was the trial Judge. I informed him this did not cause any impediment to an application pursuant to s.;406 because, in such cases, the Governor General acts purely on advice. It was my understanding that the applications were considered by counsel from the Ministry of Justice and finally decided by the Cabinet. This being, the case I informed the applicant it would be inappropriate for me to hear evidence at this stage. If there was a need for evidence to be taken that would be a matter for the Court of Appeal to determine, if and when the matter was referred to that Court.

[9] In any event, if I was later persuaded that it was appropriate for me to hear evidence, then I would want to be sure that the defendant’s counsel had had a sufficient opportunity to prepare for this beforehand.

[10] The application was accordingly adjourned to 2.15 p.m. with an indication that if either party required further time I would be prepared to consider this.

[11] The hearing resumed at 2.20 p.m. The applicant had not been able to obtain assistance from Mr Cagney. Apparently he was not available. He indicated, however, that he wished to be able to rely on Mr Jacobson as a McKenzie Friend, but only to the extent of referring to him in order to help arrange the attendance of witnesses, if this became necessary. He did not seek to have Mr Jacobson seated next to him in Court,

[12] Mr Dean appeared, he having obtained instructions in the meantime. He was able to inform the Court that the reason no appearances had been made earlier was because the Crown office had not received any notice of the time and date of hearing.

[13] From my reading of the applicant’s case, and after hearing his submissions, the case can be summarised as follows:

The essential allegation is that the warrant of commitment dated 7 April 2000 is void because the jury’s decision giving rise to the conviction and sentence arose during the course of a hearing which, in the applicant’s terms, was void because of the following matters:

[a] Alibi evidence which he submitted would clearly prove his innocence had not been placed before the Court, or adequately before the Court, at trial. I note from a copy of the Court of Appeal decision dated 8 March 2001 that this issue was traversed on appeal;

[b] Further evidence based on DNA sampling, which had the effect of not involving the applicant at the scene of the crimes, was not put before the court. Again this issue appears to have been referred to on appeal;

[c] The Crown and defence counsel at trial had conspired in such a way as to prevent the above evidence from being adduced. This matter too appears to have been dealt with at trial.

[d] There are allegations of perjury by the principal Crown witness which, I think, were also dealt with on the appeal;

[e] The trial Judge had displayed a lack of impartiality at trial;

[f] The Court of Appeal Judge who had presided at the hearing of the applicant’s appeal, was also patently biased in that -

[i] He had been involved in sentencing the applicant on unrelated charges of dishonesty; and

[ii] Prior to that Judge’s appointment had been involved with the applicant in relation to his employment in circumstances which, the applicant submitted, indicated a predisposition against the applicant.

[14] Taking these matters together it was submitted that the Court of Appeal Judge should have disqualified himself when it was apparent that he could be seen to have a predisposition against the applicant.

[15] The difficulties relating to Lord Hoffman’s position in the Pinoche trial was submitted to be an appropriate example which should have applied to this case.

[16] The applicant also referred to another difficulty facing him in relation to an application under s.406 of the Crimes Act 1961. He advised the Court that at the time when he had been sentenced by the now Court of Appeal Judge, he had sought a writ of habeas corpus. However, the then Labour Government had passed legislation overnight which had a practical effect of ensuring that the wait could not issue. Based on this experience the applicant submitted that it would be quite futile him proceeding with a further application pursuant to s.406 when that would apparently be determined, in the final analysis, by a Cabinet drawn from another Labour Government.

[17] The applicant’s final submission was, therefore, that given his difficulties with the Governor General, the Government of the day and the Court of Appeal, all of which he submitted were, for one reason or another, predisposed against him, he was left with only one alternative, namely to come to this Court by means of the present application, so that the matters of concern to him could be determined at this point.

[18] Mr Dean, on behalf of the defendant, submitted the application was misconceived; it was no more nor less than an attempt to relitigate matters previously covered by the appeal and, in any event, the writ was not available to enable relitigation in relation to convictions and sentence where a person was properly held in custody following decisions of a competent Court.

[19] Mr Dean submitted, in draft form, an affidavit which would, if necessary, be sworn by the Superintendent of Auckland Prison. Before reading this I required that a copy be given to the applicant, following which I asked him if he had any objection to my considering that affidavit. He indicated he did not. The draft affidavit sets out essentially the matters referred to in the warrant of commitment dated 7 April 2000, a copy of which was annexed to the applicant’s first affidavit.

[20] Having considered this document, the papers filed on behalf of the applicant and, having heard the submissions of both parties, I am satisfied that this application cannot succeed. It is well established that an application for habeas corpus cannot be employed to relitigate criminal convictions. The authority most often quoted in this regard is Ex Parte Corke [1954] 2 AER 440.

[21] In this case the applicant is a convicted prisoner sentenced to preventive detention following verdicts of guilty by a jury in the High Court. As such he is lawfully held in custody today in terms of a sentence imposed following those convictions. He has already appealed unsuccessfully. He has, however, the right to make application for a reference by the Governor General to the Court of Appeal.

As I have already noted the fact that the present Governor General was also the trial Judge, does not provide any impediment to such an application. The affidavits filed in support of the present application could be filed in support of an application pursuant to s.406. If there is any merit in the grounds advanced by the applicant then these could be considered, if he chooses to make such an application.

[22] For these reasons the present application is dismissed. I wish to emphasise that in coming to this conclusion, and notwithstanding I have read the affidavits filed by the applicant, I have deliberately refrained from coming to any conclusion as to the merits or otherwise of the matters raised by the applicant.

[23] The Crown has applied for costs on the ground that very clearly this application was quite inappropriate to the point that it could be said it was a vexatious and frivolous application. I have some sympathy for the Crown application and I wish to record my appreciation for the manner in which Mr Dean, and his office, have reacted to assist the Court as promptly as they did. I am not prepared to grant costs in view of the applicant’s position, namely a serving prisoner. In declining costs on this occasion I would not want to be taken as indicating that if the Crown felt it appropriate to make a similar application in the future, they should be deterred from doing so by my ruling in thus case.