TRANTER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2417 [24 September 2019]

TRANTER v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZHC 2417[24 September 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2019-485-550[2019] NZHC 2417UNDER the Habeas Corpus Act 2001IN THE MATTER of an application for a writ of habeas corpusBETWEEN DAVID STANLEY TRANTERApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: On the papersCounsel: Applicant in PersonM van Alphen Fyfe and V McCall for RespondentJudgment: 24 September 2019JUDGMENT OF CLARK J[1] On Friday 20 September 2019, an application by Mr Tranter for habeas corpus,and an accompanying letter, were brought to my attention.[2] Because habeas corpus applications are to be treated with urgency, I arrangedto hear the application on the following Monday, 23 September and asked thatMr Tranter's documents be forwarded to the Crown Law Office.[3] I have now had an opportunity to review Mr Tranter's application in light ofthe full written submissions from the Crown Law Office on the morning of the 23rd.While it was not apparent to me when I received Mr Tranter's papers on Friday20 September, it is now apparent that this is Mr Tranter's fourth application for habeascorpus raising substantially the same grounds as those previously considered by thecourts. That being the case, Mr Tranter's application offends s 15 of the HabeasCorpus Act 2000 which makes determination of applications final and prevents furtherapplications from being made on grounds requiring a re-examination of substantiallythe same questions as those considered by the court when an earlier application wasrefused.[4] Accordingly, I issued a minute advising Mr Tranter and the Crown Law Officethat the hearing would not proceed, that the application would be determined on thepapers and a judgment delivered within 24 hours.[5] In the remainder of this judgment I expand on my reasons for this approach.Background[6] Mr Tranter is currently detained at Rimutaka Prison, having been sentenced on5 February 2016 to preventive detention for historic sexual offending against minors.He is to serve a minimum of five years' imprisonment. Mr Tranter has made threeprevious applications under the Habeas Corpus Act.[7] My description of the first application is taken from the judgment of the Courtof Appeal declining Mr Tranter's application for an extension of time in which toappeal the decision of Nation J.1[3] 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 ofthe third complainant, whom Mr Tranter refers to as the named complainant,Mr Tranter said that the convictions breached the prohibition on doublejeopardy, because the named complainant had previously made allegationsagainst him in 1983, but those allegations were withdrawn.[4] In his application, Mr Tranter asked that all charges relating to thenamed complainant be dismissed and that he be remanded on bail until hisappeal is heard in respect of the remaining charges.1 Tranter v Chief Executive of the Department of Corrections [2016] NZCA 281.[8] Nation J had dismissed Mr Tranter's application on the basis it was clearMr Tranter did not claim his detention was unlawful but that his convictions should bequashed.2[9] The Court of Appeal concluded Mr Tranter's application lacked any merit ass 14(2) of Habeas Corpus Act precludes the Court from calling into question theconvictions yet that was precisely what Mr Tranter was seeking to do.3[10] Mr Tranter's second application was dismissed by Nicholas Davidson J in ajudgment delivered 16 April 2018.4 While the application appeared to be made onsimilar grounds to that which Nation J had determined, it seemed Mr Tranter hadobtained further documents beyond those relied on in his first application beforeNation J. Nevertheless, it was clear to Davidson J that the application before him wasnot an application for a writ of habeas corpus based on an allegation of unlawfuldetention — as the law requires. As with Mr Tranter's first application, his secondapplication was determined by Davidson J on the papers.[11] Mr Tranter's third application came before Mallon J. It was dismissed becauseit was substantially the same as the applications considered by Nation J andDavidson J. It is apparent from Mallon J's judgment on the papers that Mr Tranter'sthird application was treated with the similar urgency accorded to the application nowbefore me.5The current application[12] Mr Tranter's application claims the Police withheld vital evidence that wouldhave made a significance difference to his defence because the statements made bycomplainants are directly contradicted in the newly released documents. Therefore,there has been a substantive miscarriage of justice. Mr Tranter sought a hearing, atwhich he would also seek bail, so he could produce the 4–500 documents receivedfrom the police three years after trial.2 At [6].3 At [10].4 Tranter v R [2018] NZHC 681.5 Tranter v Executive Director of Department of Corrections [2018] NZHC 2764.[13] The application further states that although Mr Tranter has applied for a secondappeal it could take 12–13 months before it is heard which would be cruel andunnatural punishment as he is 69 years old and not in the best of health.[14] I summarise the main points of Mr Tranter's submissions in support of hisapplication.(a) Documents now released to Mr Tranter show that a male complainanthad previously made complaints to the police about a male, yet he laterdenied ever having done so.(b) The Judge went beyond his proper authority when summing up theevidence to the jury occasioning a miscarriage of justice.(c) Mr Tranter was deprived an adequate closing address.(d) The new evidence provided to Mr Tranter shows that he could havequestioned the male complainants' veracity and reliability which wasat the heart of the case against Mr Tranter. The new evidence furthershows shortcomings in police investigation and that Mr Trantertherefore did not have a fair trial.(e) In light of the similarities between the undisclosed evidence in this caseand other cases Mr Tranter believed the Court wold consider itappropriate to quash his convictions.[15] Mr Tranter goes on to make further detailed submissions about the nature ofthe evidence adduced at trial and why it is unreliable.Discussion[16] The first point is that Mr Tranter does not challenge the lawfulness of hiscurrent detention. He must do so for a writ of habeas corpus to be granted.66 Habeas Corpus Act 2001, s 14(1).[17] In relation to Mr Tranter's allegations the Police and Crown prosecutorswithheld evidence vital to his defence and this has resulted in an unfair trial andprejudice, it is obvious these claims and the detailed factual allegations concerning thetruthfulness of the complainant's evidence, are to be addressed via the appeal processthat Mr Tranter has on foot. Or, as the Crown submits, Mr Tranter's allegations maybe investigated pursuant to an application under s 406 of the Crimes Act 1961 for theexercise of the prerogative of mercy.[18] The application is further deficient in that Mr Tranter is attempting to deploythe habeas corpus process as a means of obtaining bail. He may not do so.7[19] In summary, contrary to s 14(2)(a) of the Habeas Corpus Act Mr Tranter invitesthe Court to call into question his conviction "of an offence by a court of competencejurisdiction".[20] A copy of the warrant of commitment dated 5 February 2016 issued by theHigh Court following the High Court's imposition of a sentence of preventivedetention was attached to the respondent's notice of opposition. Even hadMr Tranter's application been grounded in a proper challenge to the lawfulness of hisdetention, the warrant of commitment puts the point beyond tenable argument.[21] For the foregoing reasons Mr Tranter's application is dismissed._____________________________Karen Clark JSolicitors:Crown Law Office, Wellington7 Habeas Corpus Act, s 14(2)(b).