STEVENSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 372 [5 March 2015]

STEVENSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2015] NZHC 372 [5 March 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-001234[2015] NZHC 372BETWEEN ROBERT ALBERT STEVENSONApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: (On the papers)Judgment: 5 March 2015JUDGMENT OF MOORE JThis judgment was delivered by on 5 March 2015 at 4:45pmpursuant to Rule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarDate:Copy to:Mr Stevenson, TurangiIntroduction[1] On 26 February 2015, Heath J refused an application by Mr Stevenson for a writ of Habeas Corpus.1 Mr Stevenson now objects to this decision by way of a memorandum to the Court.Background[2] Mr Stevenson is currently serving a sentence of 16 years' imprisonment, witha minimum term of 10 years imposed in the District Court. Since that time he has brought no fewer than four habeas corpus applications, and has unsuccessfully appealed one of these to the Court of Appeal.[3] Mr Stevenson's earliest applications were directed at challenging his convictions. These were declined on the basis that the Habeas Corpus Act 2001("the Act") prohibits the Court on an application for a writ to call into question aconviction imposed by a Court of competent jurisdiction.2[4] Following these applications, Mr Stevenson brought a fresh application, challenging the decision to commit him for trial and arguing that as a result his trial, the conviction and sentence were unlawfully imposed. In directing the Registrar not to accept this application for filing, Toogood J concluded that this challenge was substantially the same as earlier applications. As such, the application was barred by ss 14(1A) and 15(1) of the Act.[5] On 11 February 2015, Stevens J directed that a second application for therecall of the Court of Appeal's earlier judgment3 be heard in Auckland in April 2015.4 Mr Stevenson then brought a fresh application for Habeas Corpus claiming that there had been a change of circumstances and that the direction of Stevens J"confirmed that there had been a substantial miscarriage of justice and these are exceptional circumstances."1 Stevenson v Chief Executive of the Department of Corrections HC Auckland CIV-2014-404- 1234, 26 February 2015.2 Habeas Corpus Act 2001, s 14(2)(a).3 Stevenson v R [2014] NZCA 308.4 Stevenson v R CA361/2010, 11 February 2015.[6] Heath J did not accept this argument and observed that no conclusion may be drawn about the views of the Court of Appeal until it determines the recall application following the hearing. His Honour therefore concluded that there was no change to Mr Stevenson's circumstances and directed the Registrar not to accept theapplication for filing.The present challenge[7] Mr Stevenson has now filed a memorandum seeking to challenge this determination. He alleges that Heath J erred in holding that he did not have jurisdiction to grant a writ of habeas corpus when Mr Stevenson was in custody pursuant to warrants of committal following conviction. He also alleges Heath J was wrong to conclude that there was no jurisdiction to reconsider matters which the Court had already finally determined. He therefore argues his application should have been accepted for filing.[8] Mr Stevenson's present memorandum is not, in itself, an application for habeas corpus. Rather, it is a plea that the court reconsider its decision to refuse to accept his earlier application for filing. In effect, Mr Stevenson seeks to have the decision of Heath J overturned.[9] There are two ways that such an application may be considered; either as an appeal or as an application for recall.Appeal[10] Section 16 of the Act, grants unsuccessful applicants a right of appeal against"a determination refusing an application for the issue of a writ of habeas corpus."The application before Heath J was refused on the grounds specified in ss 14(1A)(a) and 14(2)(a) of the Act. In my view, this is a determination which is subject to the right of appeal provided by s 16. It follows that Mr Stevenson may make such an application to the Court of Appeal by way of an appeal. However, this is not a matter which I have the jurisdiction to determine on the present application and if this is the course which Mr Stevenson wishes to take, he must bring an appeal in the Court of Appeal.Recall[11] An alternative pathway may exist for Mr Stevenson by way of recall. Rule 11.9 of the High Court Rules provides that a Judge may recall a judgment at any time before it is sealed. Leaving aside the question of whether Heath J's minute is a "judgment" for the purposes of r 11.9, I am satisfied that recall should not be grantedon the present application.[12] Despite the unfettered discretion granted by r 11.9, recall is a serious step which should only be taken in clear cases. Recall is only available in limited circumstances and should not be used simply as an alternative to an appeal. As Wild CJ famously observed in Horowhenua County v Nash (No 2):5Generally speaking, a judgment once delivered must stand for better orworse subject, of course, to appeal. Were it otherwise there would be greatinconvenience and uncertainty. There are, I think, three categories of cases inwhich a judgment not perfected may be recalled — first, where since thehearing there has been an amendment to a relevant statute or regulation or anew judicial decision of relevance and high authority; secondly, wherecounsel have failed to direct the Court's attention to a legislative provision orauthoritative decision of plain relevance; and thirdly, where for some othervery special reason justice requires that the judgment be recalled.[13] I am satisfied none of these grounds apply in the present case.Conclusion[14] Each of Mr Stevenson's previous applications has relied on the same groundsand has sought to challenge the validity of his conviction in one way or another. It follows that all of his applications have been blocked by either s 14(1A)(a) or s 14(2)(a) of the Act.[15] The Act is very clear that once an application has been finally determined, the Court is not required to reconsider an identical or substantially similar application from the same applicant. To the degree that Mr Stevenson seeks to challenge the earlier determination of this Court, his only recourse lies in an appeal, a right which he has already sought to exercise.5 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.[16] Absent an application on substantially different grounds that does not rely onchallenging Mr Stevenson's conviction (either directly or indirectly, which is moreappropriately done by way of an appeal against conviction), the Court is not required to grant Mr Stevenson the hearing he seeks on this application.[17] There is no basis for disturbing Heath J's decision. His direction that theRegistrar not accept this application for filing remains in force.Moore J