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Greer v Attorney-General CA5/06 [2006] NZCA 412 (22 May 2006)

Last Updated: 25 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA5/06

BETWEEN ALAN IVO GREER Appellant

AND ATTORNEY-GENERAL Respondent

Hearing: 18 May 2006

Court: Chambers, Baragwanath and Venning JJ Counsel: Appellant in person

V Sim for Respondent

Judgment: 22 May 2006

Reasons: 22 May 2006

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS

_{(Given by Venning J)}

Introduction

[1] The appellant appeals against the decision of Miller J in the High Court at Wellington on 6 January 2006, dismissing his application for habeas corpus. The appeal was heard in this Court on 18 May. At the conclusion of the hearing, the parties were advised the appeal was dismissed and that reasons would follow. These

_{are the reasons.}

GREER V ATTORNEY-GENERAL CA CA5/06 22 May 2006

Background

[2] On 6 June 2004 the appellant was convicted in the District Court of three counts of unlawful sexual connection with a minor and six counts of indecent assault. On 14 July 2004 he was sentenced to a total of seven years imprisonment.

[3] The respondent has produced two warrants of commitment for imprisonment issued by the Judge after sentence was imposed.

[4] The appellant applied for a writ of habeas corpus on 28 September 2004 on the grounds that there were deficiencies in the two warrants of commitment. The application was adjourned a number of times before it was finally dealt with by Laurenson J in a decision delivered on 10 February 2005. In a reserved decision running to 23 pages, Laurenson J considered and rejected the appellant’s challenge to the validity of the warrants.

[5] On 30 December 2005, the appellant filed this application for habeas corpus with the High Court at Wellington. Although it relates to the same convictions that were the subject of challenge before Laurenson J, the application is based on different grounds so that s 15 of the Habeas Corpus Act 2001 does not apply.

[6] The gravamen of the appellant’s complaint and the basis for his application for a writ of habeas corpus were accurately summarised by Miller J in his decision as follows:

[5] Mr Greer’s complaints before me focus on what he says is a denial of his rights of appeal. He says he was denied access to information and appeal forms. Nonetheless, he says, he did obtain the forms and twice filed an appeal in the Court of Appeal. He says that Court of Appeal staff have corruptly or negligently misfiled or lost his papers. He has complained to the Minister for Courts, and corresponded with the General Manager for Higher Courts. It appears from that correspondence that the Court of Appeal may have received a letter of 15 March 2005 that purported to be an appeal, but required that it be filed in the proper form. In the result, the Court of Appeal has not heard an appeal from Mr Greer’s convictions. It has dealt with appeals on a number of unrelated matters.

[7] For the appeal, the Crown have obtained and filed an affidavit from the

Registrar of the Court of Appeal, Ms Brown. In her affidavit Ms Brown deposes that

two applications to appeal the convictions in issue were received at the Court of Appeal Registry from Mr Greer on 16 July 2004 and 1 September 2004. The applications were made on obsolete forms and were accordingly returned to Mr Greer.

[8] During the course of the hearing, Mr Greer produced a document that does not form part of the record which, on its face, is on the standard form for appeal under ss 383(1) and 384 of the Crimes Act 1961. The document is dated

4 August 2004. It bears a date stamp from the Court of Appeal Registry of

18 August 2004. It appears that the document is an original and was returned by the Registry to Mr Greer. The possible status of that document and what might follow from it are dealt with in the minute of the Court delivered on 18 May 2006 when Mr Greer was advised his appeal was dismissed.

[9] The principles to apply on an application for a writ of habeas corpus have been recently considered by this Court in Manuel v Superintendent Hawkes Bay Regional Prison [2005] 1 NZLR 161 and Bennett v Superintendent Rimutaka Prison [2002] 1 NZLR 616.

[10] As was observed by a Full Court in Bennett:

[60] The great writ of habeas corpus ad subjiciendum – a writ of right – has been the means whereby in Great Britain over some hundreds of years, and in New Zealand since the founding of the nation, the lawfulness of a detention has been able to be tested, and, if found to be unlawful, the release of the detainee obtained. The writ is therefore of great historical and constitutional importance. In the hands of creative lawyers and Judges it has proved to be a flexible remedy against oppression and unlawful conduct. In recent years its use in this country may largely have been confined to immigration and refugee matters because alternative convenient and specific remedies have been developed to meet particular problems in the general law. Bail laws and legislation relating to child custody disputes are examples. But habeas corpus is not to be shackled by precedent. It will adapt and enlarge as new circumstances require. Nor, however, in another sense, is the writ to be diminished by its unnecessary use where another effective remedy is available through which compliance with the law can speedily be ensured and where, overall, the circumstances are not of a kind justifying resort to the writ.

[11] In Manuel, the Court of Appeal held:

[49] A person who detains another can fairly be expected to establish, effectively on demand, the legal justification for the detention. In cases involving imprisonment or other statutory confinements, this will involve the production of a relevant warrant or warrants or other documents which provide the basis for the detention. We accept that apparently regular warrants (or other similar documents) will not always be a decisive answer to a habeas corpus application. But it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants. This is particularly likely to be the case where the decision maker is not the detaining party. There may not be a bright line which distinguishes between those arguments which are available on habeas corpus applications and those which can only be deployed (if deployed at all) in judicial review proceedings. Nonetheless we see the test as coming down to whether the arguments in issue are properly susceptible to fair and sensible summary determination. If they are, they can be addressed in habeas corpus proceedings. If not, they must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

[12] At its highest, Mr Greer’s case in support of this appeal is that he has filed appeals against conviction which have been rejected by the Registry of the Court of Appeal and so he has been denied the right of appeal. The rejection of the documents lodged by Mr Greer may or may not have been justified. That may be a matter for consideration by a Court on another occasion. The issue of the impact of that on the current application for writ of habeas corpus was, however, considered and rejected by Miller J in the following passage:

[10] ...There may be circumstances in which failure to observe due process renders unlawful an otherwise lawful detention, but that is not true of a failure to process an appeal from a conviction duly entered. The convictions and resulting sentence are lawful until set aside. It follows that [the appellant] is lawfully detained under the warrants.

[13] The appellant’s submission that because his appeal documents have been wrongly rejected he has been denied his right of appeal and so should be released from custody is not dissimilar to the submission advanced on behalf of Taito and others in R v Taito [2003] 3 NZLR 577. In that case, the Privy Council accepted that the appellants’ appeals were effectively dismissed without jurisdiction. The appellants had not received any or any proper hearing of their appeals. Several of the appellants invited the Privy Council to allow the appeals and to enter acquittals. In delivering the advice of the Privy Council, Lord Steyn rejected the submission

that the only effective remedy for breach of the appellant’s constitutional rights was the entering of acquittals as “an ambitious submission”. Rather, the Privy Court directed a re-hearing of the appeals.

[14] The appellant is in custody pursuant to convictions lawfully entered. The appropriate redress for him to follow in the present case is to pursue his application to appeal. The Court has taken steps to facilitate that in its minute of 18 May.

[15] For those reasons, we dismissed the appeal.

Solicitors:

Crown Law Office, Wellington