Siemer v Chief Executive of the Department of Corrections

[2010] NZCA 292

IN THE COURT OF APPEAL OF NEW ZEALAND

CA424/2010
[2010] NZCA 292

BETWEENVINCENT ROSS SIEMER
Appellant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Respondent

Court:Hammond, Ellen France and Stevens JJ

Counsel:F C Deliu for Appellant
A M Powell for Respondent

Judgment:7 July 2010 at 4 pm

(On the papers)

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Hammond J)

[1]       This is an urgent appeal against a judgment delivered on 2 July 2010 by Allan J in which he dismissed an application for Habeas Corpus by Mr Siemer.  Mr Deliu has no objection to France J sitting on this appeal.

[2]       With the consent of the parties we are dealing with the appeal on the papers.  Indeed Mr Deliu himself suggests that the appeal be dismissed in order that an application for leave to appeal can be made to the Supreme Court of New Zealand.

[3]       The circumstances leading to this somewhat unusual course are these.[1] 

[1]Though the course being adopted is not without precedent: see Qiwen Huang v The Manager of Custodial Services, Auckland Central Remand Prison [2008] NZCA 225.

[4]       On the morning of Tuesday, 29 June 2010 Mr Siemer arrived at Auckland International Airport aboard a flight from the USA.  He was then arrested and detained pursuant to a warrant issued by a Judge of the High Court.

[5]       That detention arose by virtue of a sentence of imprisonment for contempt imposed upon him in the High Court, and subsequently varied by the Court of Appeal, and then by the Supreme Court.

[6]       Mr Siemer argued before Allan J that the warrant, although valid on its face, was nevertheless bad because it was based upon judgments of the Courts which are fundamentally flawed.

[7]       Certain arguments were advanced on Mr Siemer’s behalf and, with respect, carefully and fully dealt with by Allan J in his judgment of 2 July 2010.[2]

[2]Vincent Ross Siemer v The Chief Executive, Department of Corrections HC Auckland CIV 2010-404-39093, 2 July 2010.

[8]       Before Allan J the Crown argued that, as summarised by the Judge:[3]

To grant this application would not only call into question, but effectively over-rule, the judgment of the Supreme Court.  Indeed, merely to embark upon the process of reviewing the judgment of that Court would be to countenance an abuse of process.

[3] At [29].

[9]       The Judge noted that Mr Siemer was really seeking to have the High Court over-rule the decision of the Supreme Court which led directly to the warrant pursuant on which he is now detained.

[10]     Mr Deliu responsibly accepted that if the appeal were to be fully argued in this Court, the Crown would run the same argument and a like result would necessarily follow.  In other words, he accepts that if there is to be any relief for Mr Siemer it can only be had now in the Supreme Court.  He recognised that a further hearing, and the expense to the taxpayer in this Court, is accordingly unwarranted.

[11]     In accepting, as we do, that this appeal should be dismissed now, to enable the quick passage of the cause to the Supreme Court, we are not to be taken as indicating that there is any merit in the appeal.  In case he was wrong about an abuse of process, Allan J considered the merits of the application.  He thought there to be none.  It is difficult to see on what basis they have any prospect of success, on appeal.

Solicitors:
Equity Law, Auckland for Appellant
Crown Law Office, Wellington for Respondent