Palmer v Superintendent, Auckland Prison CA239/02 [2002] NZCA 372 (25 November 2002)

Last Updated: 9 November 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA239/02

	BETWEEN	GRAHAM ASHLEY ROBERT PALMER
		Appellant

	AND	THE SUPERINTENDENT, AUCKLAND PRISON
		Respondent

Hearing:	25 November 2002
Coram:	Anderson J
	Robertson J Priestley J
Appearances:	Appellant in Person
	J Jelas for Respondent
Judgment:	25 November 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] This is an application for special leave to appeal out of time against a decision of the High Court delivered on 1 June 2001 on Mr Palmer’s application for a writ of habeas corpus. The matter came timeously before the Auckland High Court and was disposed of on the day of the hearing.
[2] Towards the end of September 2001, Mr Palmer sought to appeal to this Court but at that stage his appeal was already some two months out of time. There has been a history since then which we need not examine being satisfied that the determination of this application rests not on the issue of inexcusable delay but on the realistic prospects of the application for a writ.
[3] Mr Palmer is a serving prisoner having been sentenced to preventive detention on 7 April 2000 following a trial before a High Court Judge and jury in October 1999 in respect of various offences under the Crimes Act. He has assiduously contended since that time that his convictions were wrongful and has taken steps in many directions to reopen the issue of his guilt or innocence. One of the routes he has sought to follow is by way of application for the writ of habeas corpus. Other routes include an application to the Governor-General pursuant to s406 of the Crimes Act. We cannot properly be concerned with the progress of that application and it is mentioned simply by way of acknowledgement on the part of this Court that there are other routes available.
[4] The application failed in the High Court because of the longstanding principle, exemplified by the case of Ex Parte Corke [1954] 2 All ER 440, that an application for habeas corpus cannot be employed to re-litigate criminal convictions entered by a court of competent jurisdiction. The common law principle is now specifically carried through into the Habeas Corpus Act 2001 in s14(2)(a). That principle is an absolute bar to the success of the present application. Even if leave were granted the appeal could not succeed. There is an ancient principle also that the Court will not contemplate that which is vain and inefficacious. Therefore this Court will not contemplate the grant of leave on an application to appeal where the appeal itself was such an insurmountable barrier to success.
[5] We are much obliged to Mr Palmer for the courtesy of his submissions and the care which he has taken with them and we have enjoyed the discussion between him and the Bench on the matters in issue. Be that as it may, the application cannot succeed and it is dismissed accordingly.
[6] It is appropriate to record that at the outset the Bench inquired of Mr Palmer whether he had any concerns about the composition of the Bench having regard to the many dealings he has had with Judges in this Court and the High Court over recent years and we are pleased to record that neither he nor the Crown had any concerns about the constitution of the Bench. We are obliged to him for that indication.

Solicitors
Crown Law Office, Wellington