Palmer v Hamlin CA214/02 [2002] NZCA 373 (29 November 2002)

Last Updated: 9 November 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 214/02

	BETWEEN	GRAHAM ASHLEY ROBERT PALMER
		Appellant

	AND	PHILLIP HAMLIN
		First Respondent

	AND	MORAG MCDOWELL
		Second Respondent

	AND	FRANK HOGAN
		Third Respondent

Hearing:	25 & 29 November 2002
Coram:	Anderson J Robertson J Priestley J
Appearances:	Appellant in person D P H Jones for First and Second Respondents G J Thwaite for Third Respondent
Judgment:	29 November 2002

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

[1] The matter before this Court is an application by Mr Palmer for leave to appeal out of time against a judgment at the High Court on 11 December 2001 in respect of proceedings brought by Mr Palmer against three barristers. The first and second respondents were of counsel for the Crown in a criminal trial which resulted in Mr Palmer’s conviction and sentence of preventive detention. The third respondent was Mr Palmer's counsel for the purpose of that trial - counsel, moreover, whose skills resulted in six of the ten counts being discharged.
[2] Mr Palmer has a sincere and abiding sense of grievance over his convictions, maintaining persistently that he is innocent and has suffered a miscarriage of justice. It is not for this Court to examine the merits of that sense of grievance but we mention it in deference to the understandable concern he may have over his position. Mr Palmer has tried various strategies to reopen the question of his convictions. These include litigation against many people, pleading different causes of action but ultimately always focused on the issue of the legitimacy of his convictions. Proceedings took the form of allegations of malicious prosecution, barristerial negligence, conspiracy, misfeasance of public office and many other forms of tort invoked by way of collateral attack against the legitimacy of the convictions.
[3] It is this Court’s view that as long as the convictions remain on the record collateral attacks to reopen their legitimacy meet insurmountable legal barriers. Only if and when such convictions should be set aside pursuant to a pending application to the Governor-General in terms of s406 of the Crimes Act 1961 could incidental litigation be contemplated. Of course, should the convictions be set aside the very need to resort to collateral attacks will have been obviated. This has been explained, we think, painstakingly and, we hope, courteously by the Bench to Mr Palmer who has indicated on several occasions his total understanding of the position. We have been concerned that he may have been undermining his own credit in respect of his pending application to the Governor-General by litigation which suffers a risk of being labelled utterly vexatious.
[4] We have also been concerned for the position of the three respondents who are very respected members of the Bar and who, in this Bench’s experience, have been unfailing, diligent and courteous in the discharge of their barristerial responsibilities at all times. These concerns for all parties have been expressed by the Bench with the suggestion at one point that perhaps all appropriate interests could be met by an undertaking on the part of Mr Palmer that relieves the respondents from any threat of repetitive litigation and yet, on the other hand, relieves Mr Palmer himself of the impost of costs orders, incidental enforcement proceedings and a judgment by way of summary judgment on the original application before the High Court.
[5] We record that when the matter was broached Mr Palmer immediately sought leave to be heard and indicated his total commitment to and agreement with the proposed undertaking. We have adjourned on two occasions to let Mr Palmer reflect and for learned counsel to consult their clients, two of whom are presently in Court, in relation to a possible undertaking on the one hand and the possible relinquishing of the benefit of judgment on the other. The relinquishing of the judgment for costs and the summary judgment represent real concessions and in law adequate consideration for the undertaking that had been proposed. It is important for us to record these matters because the intent of the accord now reached is that, unless and until the convictions in question should be set aside, the three respondents will be immune from any proceedings at the suit of Mr Palmer. I noted a form of undertaking which I read out to Mr Palmer and he accepts the form of it. I read it out to learned counsel who have had the opportunity of discussing it with their clients and they accept the formula. We are, therefore, happy to record that the parties have reached consensus on the course which we are now about to note.
[6] First, leave to appeal out of time against the judgment of the High Court is granted. The appeal is allowed to the extent that the order for costs and summary judgment are set aside. Mr Palmer is granted leave to withdraw such proceedings and they are deemed to be abandoned. Mr Palmer, for his part, undertakes as follows:

Mr Palmer undertakes, in consideration for the orders now being made in his favour, not to initiate or continue any proceedings against all or any of the three respondents unless and until the convictions in respect of which he was sentenced to preventive detention shall be quashed by a Court of competent jurisdiction or be the subject of a Vice Regal pardon or pardons.

[7] Undertaking noted and orders made accordingly. A copy of this judgment will be made available to Mr Palmer and to the respondents’ counsel at the earliest opportunity.

Solicitors
Crown Solicitor Auckland for First & Second Respondents
G J Thwaite for Third Respondent