Tranter v Chief Executive of the Department of Corrections

[2019] NZHC 2417

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-550

[2019] NZHC 2417

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

DAVID STANLEY TRANTER

Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing:

On the papers

Counsel:

Applicant in Person

M van Alphen Fyfe and V McCall for Respondent

Judgment:

24 September 2019

JUDGMENT OF CLARK J

[1]                 On Friday 20 September 2019, an application by Mr Tranter for habeas corpus, and an accompanying letter, were brought to my attention.

[2]                 Because habeas corpus applications are to be treated with urgency, I arranged to hear the application on the  following  Monday,  23 September  and  asked  that Mr Tranter’s documents be forwarded to the Crown Law Office.

[3]                 I have now had an opportunity to review Mr Tranter’s application in light of the full written submissions from the Crown Law Office on the morning of the 23rd. While it was not apparent to me when I received  Mr Tranter’s papers on Friday     20 September, it is now apparent that this is Mr Tranter’s fourth application for habeas corpus raising substantially the same grounds as those previously considered by the

TRANTER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2417

[24 September 2019]

courts. That being the case, Mr Tranter’s application offends s 15 of the Habeas Corpus Act 2000 which makes determination of applications final and prevents further applications from being made on grounds requiring a re-examination of substantially the same questions as those considered by the court when an earlier application was refused.

[4]                 Accordingly, I issued a minute advising Mr Tranter and the Crown Law Office that the hearing would not proceed, that the application would be determined on the papers and a judgment delivered within 24 hours.

[5]In the remainder of this judgment I expand on my reasons for this approach.

Background

[6]                 Mr Tranter is currently detained at Rimutaka Prison, having been sentenced on 5 February 2016 to preventive detention for historic sexual offending against minors. He is to serve a minimum of five years’ imprisonment. Mr Tranter has made three previous applications under the Habeas Corpus Act.

[7]                 My description of the first application is taken from the judgment of the Court of Appeal declining Mr Tranter’s application for an extension of time in which to appeal the decision of Nation J.1

[3]        … The basis upon which he made the application was, in substance, that he had been wrongfully convicted in respect of two of the complainants, and had or was shortly to have evidence which could prove that. In respect of the third complainant, whom Mr Tranter refers to as the named complainant, Mr Tranter said that the convictions breached the prohibition on double jeopardy, because the named complainant had previously made allegations against him in 1983, but those allegations were withdrawn.

[4]        In his application, Mr Tranter asked that all charges relating to the named complainant be dismissed and that he be remanded on bail until his appeal is heard in respect of the remaining charges.

1      Tranter v Chief Executive of the Department of Corrections [2016] NZCA 281.

[8]                 Nation J had dismissed Mr Tranter’s application on the basis it was clear    Mr Tranter did not claim his detention was unlawful but that his convictions should be quashed.2

[9]                 The Court of Appeal concluded Mr Tranter’s application lacked any merit as s 14(2) of Habeas Corpus Act precludes the Court from calling into question the convictions yet that was precisely what Mr Tranter was seeking to do.3

[10]              Mr Tranter’s second application was dismissed by Nicholas Davidson J in a judgment delivered 16 April 2018.4 While the application appeared to be made on similar grounds to that which Nation J had determined, it seemed Mr Tranter had obtained further documents beyond those relied on in his first application before Nation J. Nevertheless, it was clear to Davidson J that the application before him was not an application for a writ of habeas corpus based on an allegation of unlawful detention — as the law requires. As with Mr Tranter’s first application, his second application was determined by Davidson J on the papers.

[11]              Mr Tranter’s third application came before Mallon J. It was dismissed because it was substantially the same as the applications considered by Nation J and Davidson J. It is apparent from Mallon J’s judgment on the papers that Mr Tranter’s third application was treated with the similar urgency accorded to the application now before me.5

The current application

[12]              Mr Tranter’s application claims the Police withheld vital evidence that would have made a significance difference to his defence because the statements made by complainants are directly contradicted in the newly released documents. Therefore, there has been a substantive miscarriage of justice. Mr Tranter sought a hearing, at which he would also seek bail, so he could produce the 4–500 documents received from the police three years after trial.

2 At [6].

3 At [10].

4      Tranter v R [2018] NZHC 681.

5      Tranter v Executive Director of Department of Corrections [2018] NZHC 2764.

[13]              The application further states that although Mr Tranter has applied for a second appeal it could take 12–13 months before it is heard which would be cruel and unnatural punishment as he is 69 years old and not in the best of health.

[14]              I summarise the main points of Mr Tranter’s submissions in support of his application.

(a)Documents now released to Mr Tranter show that a male complainant had previously made complaints to the police about a male, yet he later denied ever having done so.

(b)The Judge went beyond his proper authority when summing up the evidence to the jury occasioning a miscarriage of justice.

(c)Mr Tranter was deprived an adequate closing address.

(d)The new evidence provided to Mr Tranter shows that he could have questioned the male complainants’ veracity and reliability which was at the heart of the case against Mr Tranter. The new evidence further shows shortcomings in police investigation and that Mr Tranter therefore did not have a fair trial.

(e)In light of the similarities between the undisclosed evidence in this case and other cases Mr Tranter believed the Court wold consider it appropriate to quash his convictions.

[15]              Mr Tranter goes on to make further detailed submissions about the nature of the evidence adduced at trial and why it is unreliable.

Discussion

[16]              The first point is that Mr Tranter does not challenge the lawfulness of his current detention. He must do so for a writ of habeas corpus to be granted.6

6      Habeas Corpus Act 2001, s 14(1).

[17]              In relation to Mr Tranter’s allegations the Police and Crown prosecutors withheld evidence vital to his defence and this has resulted in an unfair trial and prejudice, it is obvious these claims and the detailed factual allegations concerning the truthfulness of the complainant’s evidence, are to be addressed via the appeal process that Mr Tranter has on foot. Or, as the Crown submits, Mr Tranter’s allegations may be investigated pursuant to an application under s 406 of the Crimes Act 1961 for the exercise of the prerogative of mercy.

[18]              The application is further deficient in that Mr Tranter is attempting to deploy the habeas corpus process as a means of obtaining bail. He may not do so.7

[19]              In summary, contrary to s 14(2)(a) of the Habeas Corpus Act Mr Tranter invites the Court to call into question his conviction “of an offence by a court of competence jurisdiction”.

[20]              A copy of the warrant of commitment dated 5 February 2016 issued by the High Court following the High Court’s imposition of a sentence of preventive detention  was  attached  to  the  respondent’s  notice  of  opposition.   Even  had   Mr Tranter’s application been grounded in a proper challenge to the lawfulness of his detention, the warrant of commitment puts the point beyond tenable argument.

[21]For the foregoing reasons Mr Tranter’s application is dismissed.

Karen Clark J

Solicitors:
Crown Law Office, Wellington

7      Habeas Corpus Act, s 14(2)(b).