Ronald van Wakeren v Chief Executive of the Department of Corrections

[2012] NZSC 65

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

1. 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-

2. 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.

3. 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. 

4. The application for recall is therefore declined.

Solicitors:
Crown Law Office, Wellington

       208, 26 January 2012.