TRANTER V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZCA 281

TRANTER V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZCA 281 [22 June 2016]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA73/2016[2016] NZCA 281BETWEEN DAVID STANLEY TRANTERApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 16 June 2016Court: Ellen France P, Randerson and Winkelmann JJCounsel: Applicant in personD Harris and T P Westaway for RespondentJudgment: 22 June 2016 at 3.30 pmJUDGMENT OF THE COURTThe application for an extension of time to appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Mr Tranter seeks leave under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time in which to appeal orders of Nation J dismissing Mr Tranter's application for relief under the Habeas Corpus Act 2001.11 R v Tranter HC Christchurch CIV-2016-409-3, 12 January 2016. These orders are recorded in a minute.[2] The notice of appeal was filed on 25 February 2016, nine days out of time. Mr Tranter is self-represented and currently serving a sentence of imprisonment atChristchurch Men's Prison. He explains the delay was caused by a failure in theprison mail system. Although the respondent2 opposes the application for leave, he does so on the grounds that the appeal is without merit. The respondent accepts it may be difficult for an incarcerated litigant in person to comply with the relevant appeal time period and that, in this case, the delay is not significant.Factual background[3] Mr Tranter was convicted for sexual offending involving three complainants. He filed an application in the High Court which he described as an application for relief under the Habeas Corpus Act 2001. The basis upon which he made the application was, in substance, that he had been wrongfully convicted in respect of two of the complainants, and had or was shortly to have evidence which could prove that. In respect of the third complainant, whom Mr Tranter refers to as the named complainant, Mr Tranter said that the convictions breached the prohibition on double jeopardy, because the named complainant had previously made allegations against him in 1983, but those allegations were withdrawn.[4] In his application, Mr Tranter asked that all charges relating to the named complainant be dismissed and that he be remanded on bail until his appeal is heard in respect of the remaining charges.Minute of Nation J[5] The Judge said that an application for habeas corpus cannot be based simply on the contention that an applicant has been wrongly convicted or wrongly denied bail.3 He referred to s 14(2) of the Habeas Corpus Act which provides:2 We have amended the intituling, on the respondent's application, substituting the ChiefExecutive of the Department of Corrections for Her Majesty the Queen. Mr Tranter is detained in a Department of Corrections facility, so that the correct respondent in an application for a writ of habeus corpus is the Chief Executive of the Department of Corrections.3 R v Tranter, above n 1, at [8].14 Determination of applications(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—(a) a conviction of an offence by a court of competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or(b) a ruling as to bail by a court of competent jurisdiction.[6] The Judge said that on the face of the application before him it was clear that Mr Tranter did not claim that his detention was unlawful.4 Rather he contended that convictions should be quashed, based on arguments which he also indicated he would pursue through an appeal.5 The Judge said that while Mr Tranter is entitled to raise those arguments in an appeal, the application was not on its face an application for habeas corpus based on an allegation of unlawful detention.6 He dismissed the application.7Relevant principles[7] The overarching consideration when determining whether or not an extension of time should be granted is where the interests of justice lie.8 Relevant considerations in determining whether to grant an extension of time include:9(a) the length of the delay and the reasons for it;(b) the parties' conduct;4 At [9].5 At [9].6 At [10]–[11].7 At [11].8 My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19].9 At [19]; Forrest v Chief Executive of the Department of Corrections [2012] NZCA 217 at [9]; and Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 468 at [13].(c) the extent of prejudice caused by the delay;(d) the prospective merits of the appeal; and(e) whether the appeal raises any issue of public importance.[8] The respondent's position is that the complete absence of merits should bedeterminative of this application. The respondent produced a copy of the warrant as evidence that Mr Tranter is lawfully detained.[9] Mr Tranter says that his proposed appeal raises an issue of public importance— the application of the double jeopardy principle. He says the Judge erred in rejecting his application in light of this principle. He also says the hearing was procedurally unfair because the Judge prevented him from presenting documentary evidence to substantiate his arguments that the convictions are wrongful.Decision[10] We agree with the respondent's position that the appeal lacks any merit. The Judge was correct to say that s 14(2) of the Habeas Corpus Act precludes the Court from calling into question the convictions in this case and that it is precisely what Mr Tranter is seeking to do. Mr Tranter is trying to use the habeas corpus procedure for a purpose for which it was not designed — pursuing an argument that existing convictions are wrongful. Irrespective of the strength of Mr Tranter'sarguments in respect of the double jeopardy point (and we express no view on those merits), the proper forum for that issue is the appeal Mr Tranter has filed.[11] To conclude, because the proposed appeal has no possible prospect ofsuccess, there is no point in extending time to allow it to be brought. Mr Tranter'sapplication for an extension of time to appeal is therefore declined.[12] We make no order as to costs.Solicitors:Crown Law Office, Wellington for Respondent