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S v Attorney-General [2022] NZHC 3108 (25 November 2022)

Last Updated: 8 March 2023

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 the applicant’s conviction, contrary to the proscription in s 14(2)(a) of the Act. I agree.

[8] It also says that the question of whether Judge Burns acted without authority when he committed the applicant for trial is not an appropriate one to consider within the summary habeas corpus jurisdiction. It refers me to the decisions of the Court of Appeal in Campbell v Superintendent of Wellington Prison⁴ and Manuel v Superintendent of Hawkes Bay Regional Prison⁵ both of which support that submission.

[9] Habeas corpus is, in my view, a wholly inappropriate vehicle in which to advance this challenge. In any event, the applicant has already tested, by way of application to the Supreme Court,⁶ and most recently by judicial review before Powell J,⁷ the propriety of his committal. He cannot do so again on a habeas corpus application.

[10] The Crown has provided me with a warrant of commitment for sentence of imprisonment and an order for minimum period of imprisonment. Both documents are dated 18 May 2010 and are signed by District Court Judge JP Gittos. They confirm that on 4 November 2009, the applicant was convicted on seven charges of sexual

⁴ Campbell v Superintendent of Wellington Prison [2007] NZAR 52 (CA) at [35].

⁵ Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).

6. The applicant’s argument that Judge Burns’ decision was in error was raised before the Supreme Court in an application which was treated as one for recall of the Court’s previous decision declining leave to appeal against a decision of the Court of Appeal dismissing the applicant’s appeal against conviction. In declining recall, the Supreme Court observed that “[a]ny errors alleged are peripheral and would not have affected the outcome of the trial”: S (SC 39/2017) v R [2022] NZSC 7 at [4] and [7].

⁷ S v Attorney-General, above n 2.

offending and that on 18 May 2010, he was sentenced to 16 years’ imprisonment, with a minimum period of imprisonment of 10 years.

[11] At my request, counsel also provided a copy of the Parole Board’s decision, dated 22 July 2022, declining the applicant parole.

[12] I am therefore satisfied that the detention of the applicant is lawful.

Result

[13] The application for a writ of habeas corpus is refused.

Muir J