R v Palmer CA334/03 [2004] NZCA 354 (18 October 2004)

Last Updated: 18 April 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA334/03

THE QUEEN

v

GRAHAM ASHLEY ROBERT PALMER

Hearing: 6 October 2004 Coram: Anderson P
Glazebrook J Hammond J

Appearances: R A A Weir for Appellant
S P France for Crown Judgment: 18 October 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] Mr Palmer was convicted in the High Court at Auckland on 7 October 1999 on two counts of sexual violation and two counts of committing an indecent act. The trial Judge was Cartwright J.

[2] On 7 April 2000 Mr Palmer was sentenced to preventive detention.

R V GRAHAM PALMER CA CA334/03 [18 October 2004]

[3] Mr Palmer then appealed against his conviction, to this Court. That appeal was dismissed on 8 March 2001 (CA80/00).

[4] Mr Palmer continued to maintain his innocence. Eventually, he sought a rehearing of his appeal. That application was dismissed (ex parte) on 17 September 2003 by this Court, on the footing that no jurisdiction existed for the Court to rehear a criminal appeal which had already been the subject of a dismissal.

[5] Subsequently, Mr Palmer lodged an application for a recall of the order dismissing the application for a rehearing.

[6] It is that application which is presently before us for determination.

The basis of the application to recall

[7] The application as lodged by Mr Palmer raises numerous grounds.

[8] We were much aided on the hearing by the careful and professional endeavours of Mr Weir who, appropriately, concentrated on those grounds which might conceivably have afforded support for Mr Palmer’s application for recall.

[9] Without doing any injustice to Mr Weir’s arguments, these grounds can themselves conveniently be grouped under two heads: alleged failures of due process; and what is termed “false evidence” which, it is said, led to an unsafe conviction.

The due process grounds

[10] Mr Palmer maintains that two of the three Judges who heard the merits of his appeal in 2001 ought not to have sat on that appeal.

[11] In the case of Gault J, in 1988 the learned Judge had sentenced Mr Palmer to six years imprisonment on fraud charges. Mr Palmer had pleaded guilty. But he had then applied to abandon his guilty pleas. Gault J declined that application. On
appeal, this Court upheld Gault J’s decision, but varied the sentence to take into account the period of remand custody not expressly referred to by Gault J in his sentencing remarks (see CA83/88 22 August 1989).

[12] Mr Palmer also claims to have had a “personal involvement” with Gault J as long ago as 1971-2 when His Honour was a member of a Wellington law firm and Mr Palmer was a newspaper reporter.

[13] Mr Palmer says that, in consequence of these matters, Gault J should not have sat on his 2001 appeal. Mr Palmer further complains that, in the course of that appeal, Gault J made an observation to his counsel that, “Your client is a very manipulative man”, which demonstrated “bias”.

[14] In the case of Potter J, Mr Palmer complains that Her Honour was also disqualified from sitting on that appeal against Mr Palmer’s conviction because she had declined an application for legal aid for a second counsel in Mr Palmer’s 1999 trial, and because in the course of her ruling the Judge said “unfortunately these cases are frequently before the courts”.

[15] These complaints can be shortly dealt with: none of these prior judicial “involvements” come anywhere near forming an appropriate basis for the submission of “apparent bias” raised by Mr Palmer.

[16] As to the position of Gault J, the appeal with respect to the convictions for sexual offending was a quite different matter from the fraud trial over which Gault J had presided as a trial Judge. And Mr Palmer’s counsel took no objection to His Honour sitting on the 2001 appeal, which involved quite different offending. This point has been raised after the event, on the appeal. As to the allegedly biased comment, Mr Palmer’s counsel (properly) acknowledges in his affidavit that there was at least one matter in the appeal papers which might (reasonably) have given rise to the comment. And Mr Cagney’s affidavit is equivocal as to whether it was Gault J who made the comment, or some other member of the Court.
[17] As to the position of Potter J, the context in which the legal aid application came before the Judge was a statutory review of a Registrar’s decision to decline the grant of legal aid for a second counsel. There was nothing out of the ordinary in that course. And, that decision by Potter J required no consideration of the merits of the prosecution against Mr Palmer. In short, the role played by Potter J was limited, and in no wise went to the merits of the case against Mr Palmer. As to the remark complained of, when viewed in context it was plainly a reference to the frequency of sexual offending trials, the cost which might be incurred to the public if second counsel were to be regularly appointed, and that the usual course was (and still is) to have one counsel.

[18] There is nothing in these concerns, and these bases for a recall of the order under consideration fail.

The evidential matters

[19] Mr Palmer’s central concerns here appear to relate to what he conceives to be “withheld” DNA evidence, and in relation to certain Telecom accounts.

[20] As to the DNA evidence, the concern appears by Mr Palmer’s affidavit of 16 September 2004, at paragraphs 8 and 9. The ESR did not find any DNA material which Mr Palmer contends would have been present if events had occurred in the manner alleged by the Crown at trial. Mr Palmer’s point is that, on the Crown version of things, such samples would have been present. But, he says, “no such samples were found”. This argument is at best speculative, and in any event unpersuasive. This is not a matter of “withheld” or “missing” evidence: none was found.

[21] As to the Telecom accounts, there was an issue at trial as to whether there had been incoming phone calls to the complainant’s household, at relevant times. The Telecom evidence was that there were no such incoming phone calls. Mr Palmer says that, subsequently, in a private criminal prosecution by him of a man he alleges raped and kidnapped the complainant on the occasion in question, he was able to unearth the “correct” Telecom evidence; he also says that Telecom failed to
disclose the correct phone calls for his plant nursery at Albany. This material, Mr Palmer maintains, goes to the non-involvement by him in the events complained of in the particular case.

[22] These evidential matters are of a character which this Court is in no position to assess, even if it were appropriate, on an application of this character. That said, it is quite inappropriate that this Court should endeavour to do so in the present context. Consideration of these sort of concerns would amount to a significant inroad into the principle of finality.

[23] These bases for the application all also fail.

Some observations on jurisdiction

[24] The observations we have already made are sufficient to dispose of this application. However we think it advisable to make some brief observations on the jurisdiction of this Court to entertain applications of the character which have been placed before it.

[25] It is correct that in R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 this Court, presided over by the Chief Justice, confirmed that this Court can set aside its own decision if that decision is a nullity. But, as the Chief Justice noted:

Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available (at [36]).

[26] What Mr Weir urged on us was that the term “procedure” should be given a wide reading. Of course, if such an approach were to be taken, then potentially a very wide range of matters might come within the recall jurisdiction.

[27] In our view, to view the matter in that way, is to take the term “procedure” in isolation. It is only if the matters complained of can properly be said to give rise to a nullity that the inherent powers of this Court may be invoked, to set aside the judgment (see R v Wickliffe [1985] NZCA 117; [1986] 1 NZLR 4 at 9 per Cooke J). To the extent that
the decision of the English Court of Appeal in Taylor v Laurenson & Anor [2002] UKPC 30; [2002] 2 All ER 353 might be thought to suggest otherwise, it is inappropriate that this Court depart from its own prior decision in Wickliffe. Further, the ability to resort to the recall jurisdiction only potentially arises if there are no other alternatives reasonably available (such as an appeal process or recourse to the Governor- General). Where those avenues have been closed off it would be quite inappropriate for this Court effectively to override those decisions by recalling its prior judgment.

[28] It is difficult to see any present need to cast the operative principle any more widely than we have stated it to be. The English situation is necessarily governed by the practical limits arising out of the structure of the English appellate system. In New Zealand, in the (now) legal regime, under s 13(2) of the Supreme Court Act 2003 an appellant can be granted leave to appeal to the Supreme Court if “a substantial miscarriage of justice may have occurred, or may occur unless the appeal is heard”.

[29] Finally, as a matter of legal policy, we stress the concern expressed many times, in every jurisdiction, by senior appellate courts: intending appellants or likely appellants should not be encouraged to proceed through the trial and the appellate process, and then, belatedly, be enabled to raise points which are really no more than collateral attacks on the prior processes and determinations. In short, the public interest in the finality of litigation is of great moment.

Conclusion

[30] There is no merit in the application for recall of the judgment of 8 March 2001. In any event, we have no jurisdiction to entertain it. The application is dismissed.

Solicitors:

Crown Law Office, Wellington