Ronald van Wakeren v Chief Executive of the Department of Corrections

IN THE SUPREME COURT OF NEW ZEALAND

SC 16/2012
[2012] NZSC 65

BETWEEN RONALD VAN WAKEREN
Applicant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Court: Elias CJ, William Young and Chambers JJ

Counsel: Applicant in person
A M Powell for Respondent

Judgment: 1 August 2012

JUDGMENT OF THE COURT (RECALL)

The application for recall of the judgment of the Court dated 5 April 2012 [2012] NZSC 24 is dismissed.

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REASONS

The applicant seeks a recall (or perhaps a reconsideration) of the judgment of this Court delivered on 5 April this year[1] dismissing his application for leave to appeal against a judgment of the Court of Appeal[2] upholding a High Court[3] rejection of an application for a writ of habeas corpus.
[1]      VanWakeren v Chief Executive of the Department of Corrections [2012] NZSC 24.
[2]      VanWakeren v Chief Executive of the Department of Corrections [2012] NZCA 22.
[3]      Van Wakeren v Chief Executive of the Department of Corrections HC Auckland CIV-2012-404-
The applicant’s submissions in support of the application largely either repeat or supplement the submissions earlier made and in this way take issue with the conclusions expressed in the judgment dismissing the application for leave to appeal. It is not the practice of the Court to engage with arguments of that sort. There is, however, one other point raised by the applicant which requires a response.
The applicant says that his original application for leave to appeal was based on four grounds and the judgment of this Court identified only three grounds, leaving unaddressed, he says, a fourth ground, that of breach of natural justice. It is true that the application for leave to appeal was based on four separate grounds of appeal and that the fourth was an allegation of breach of natural justice. But, the second and third grounds were in substance the same, namely, a challenge to the form of his warrant of commitment and the fourth at least encompassed the same issue. And, in the applicant’s subsequently filed memorandum, the grounds of appeal were reduced to three (with the second and third grounds earlier identified being conflated into a single ground). And, while the third ground in the memorandum was headed as a complaint that the Court of Appeal had not observed the principles of natural justice, his argument under this heading “in essence” as he put it, was that the Court of Appeal in the earlier sentence appeal had no jurisdiction to impose a minimum period of imprisonment. This ground of appeal was therefore accurately referred to in the earlier leave judgment as involving a challenge to the imposition of the minimum period of imprisonment.
The application for recall is therefore declined.

Solicitors:
Crown Law Office, Wellington

208, 26 January 2012.

CaseChat Overview and Summary

Ronald van Wakeren applied to the Supreme Court of New Zealand for a recall of a judgment that had dismissed his application for leave to appeal against a judgment of the Court of Appeal. The Court of Appeal had upheld a High Court rejection of van Wakeren's application for a writ of habeas corpus. Van Wakeren's application for recall was based on the contention that the Supreme Court had not properly addressed all grounds of his appeal, specifically a ground relating to a breach of natural justice. The legal issues before the Supreme Court were whether the application for recall should be granted, and whether the Court had properly identified and addressed all grounds of appeal.

The Supreme Court found that van Wakeren's original application for leave to appeal was indeed based on four grounds, but that the fourth ground was encompassed within the second and third grounds, which challenged the form of his warrant of commitment. Furthermore, van Wakeren himself had reduced the grounds of appeal to three in a subsequently filed memorandum, conflating the second and third grounds. The Court also noted that the third ground, which van Wakeren described as a complaint about a breach of natural justice, essentially argued that the Court of Appeal lacked jurisdiction to impose a minimum period of imprisonment. Thus, the Court concluded that the earlier judgment had accurately referred to the challenge to the imposition of the minimum period of imprisonment. The Supreme Court therefore declined to grant the application for recall.

The Supreme Court's decision dismissed van Wakeren's application for recall of the earlier judgment. The Court held that it was not the practice to engage with arguments that merely repeated or supplemented earlier submissions, and that the application for recall was based on a misunderstanding of the grounds of appeal. The Court concluded that the earlier judgment had properly identified and addressed all grounds of appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established