S v Attorney-General - [2022] NZHC 3108

NOTE: PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2214

[2022] NZHC 3108

BETWEEN
S

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

THE AUCKLAND DISTRICT COURT
Second Respondent

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Third Respondent

Hearing: 25 November 2022

Appearances:

Applicant in person (by VMR) Z Hamill for Respondents

Judgment:

25 November 2022

ORAL JUDGMENT OF MUIR J

[Re: Application for Writ of Habeas Corpus)

Solicitors: Criminal Law Office

S v THE ATTORNEY-GENERAL [2022] NZHC 3108 [25 November 2022]

Introduction

[1] Mr S (the applicant) has filed an application for a writ of habeas corpus on 23 November 2022. The application was referred to me in my capacity as Duty Judge. I directed that it be served on the Crown. I set down the application down for hearing on 25 November 2022.

Background

[2] The applicant is a convicted sex offender currently serving a 16-year sentence of imprisonment at Auckland South Correctional Facility. He has on multiple occasions challenged the convictions underlying that sentence. His most recent attempt to do so was by an application for judicial review of the 2008 decision of Judge Burns committing him for trial.1

[3] That decision largely turned on the admissibility of the complainant’s evidential video interview, which was challenged on the technical ground that, in terms of the relevant legislation at the time, the person conducting the interview was not a person lawfully able to take an oath or declaration.

[4] The application for review was struck out by Powell J as an abuse of process on the basis that it relitigated issues already determined in previous decisions of the High Court, of the Court of Appeal and Supreme Court in connection with appeals against the applicant’s convictions.2 His Honour went on, however, to reject the applicant’s argument that any defect in the committal process could be said to nullify his subsequent convictions.3 The present application revisits these same issues.

Legal principles

[5] Section 14 of the Habeas Corpus Act 2001 (the Act) requires the High Court to grant, as a matter of right, a writ of habeas corpus ordering the release of the detained person from detention if the defendant fails to establish that the detention is lawful.

1      The Police v [S] DC Waitakere CRN 0809003987-3991, 26 November 2008.
2      S v Attorney-General [2022] NZHC 2992.
3      At [26]–[27].

Relevantly, s 14(2)(a) states that in determining the application, a judge is not entitled to call into question “a conviction of an offence by a court of competent jurisdiction”.

Discussion

[6] The application proceeds on the premise that Judge Burns’ judgment was in error and therefore amounted to a “void act of unlawfully committing [him] to trial” with the consequence that the subsequent trial was conducted without jurisdiction.

[7] The Crown submits that the application constitutes a collateral attack on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S v Attorney-General

Details

AGLC: S v Attorney-General [2022] NZHC 3108
Case: [2022] NZHC 3108
Decision Date: 25 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mr. S (the applicant) sought a writ of habeas corpus against the Attorney-General, the Auckland District Court, and the Chief Executive of the Department of Corrections. The applicant, a convicted sex offender serving a 16-year sentence at Auckland South Correctional Facility, argued that his detention was unlawful due to an error in the 2008 decision by Judge Burns that committed him for trial. The application revisited the admissibility of the complainant's evidential video interview, which was challenged on the basis that the person conducting the interview was not lawfully able to take an oath or declaration.

The legal issues before the court were whether the application for a writ of habeas corpus could be used to challenge the applicant's conviction and whether the court could consider whether Judge Burns acted without authority when he committed the applicant for trial. The court examined Section 14 of the Habeas Corpus Act 2001, which mandates the High Court to grant a writ of habeas corpus ordering the release of a detained person if the detention is unlawful. However, Section 14(2)(a) prohibits the court from questioning the validity of a conviction by a competent court. The Crown argued that the application was a collateral attack on the applicant's conviction, which was prohibited by the Act. The court agreed with the Crown, holding that habeas corpus was not the appropriate vehicle to advance this challenge and that the applicant had already tested the propriety of his committal through other legal avenues.

Muir J concluded that the application for a writ of habeas corpus was refused, as the applicant's detention was lawful. The court was satisfied with the provided warrant of commitment for sentence of imprisonment and the order for a minimum period of imprisonment, both dated 18 May 2010 and signed by District Court Judge JP Gittos. The court also took into account the Parole Board's decision dated 22 July 2022, which declined the applicant's parole.

Orders