VAN WAKEREN v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS SC 16/2012
Leave to appeal was declined because none of the proposed grounds disclosed a tenable basis for relief: the judge‑appointment point was immaterial given the statutory framework (including s 58G); the non‑compliant warrant did not invalidate the conviction, sentence or detention and was curable; and the challenge to...
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- Citation
- VAN WAKEREN v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS SC 16/2012
- Parties
- Applicant: Ronald Van Wakeren; Respondent: Chief Executive of Department of Corrections
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 5 April 2012
- Procedural Posture
- Application for Writ of Habeas Corpus; Leave to Appeal to Supreme Court / Application for Leave to Appeal to Supreme Court (declined)
- Outcome
- Leave to appeal declined
- Legal Topics
- Leave to Appeal, Jurisdiction of Appellate Judges, Warrant Compliance, Validity of Detention, Minimum Period of Imprisonment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ronald Van Wakeren
Applicant
Chief Executive of Department of Corrections
Respondent
Procedural Posture
Application for Writ of Habeas Corpus; Leave to Appeal to Supreme Court / Application for Leave to Appeal to Supreme Court (declined)
Legal Issues
- 1 Whether two Court of Appeal judges were improperly appointed under ss 58A/58B of the Judicature Act and whether that affected jurisdiction
- 2 Whether the Court of Appeal warrant complied with s 91(2) of the Sentencing Act 2002 and whether any non‑compliance invalidated detention
- 3 Whether the challenge to the minimum period fixed on the earlier sentence appeal raised a tenable ground for habeas corpus or leave to appeal
Ratio Decidendi
Leave to appeal was declined because none of the proposed grounds disclosed a tenable basis for relief: the judge‑appointment point was immaterial given the statutory framework (including s 58G); the non‑compliant warrant did not invalidate the conviction, sentence or detention and was curable; and the challenge to the minimum period was a substantive attack on the earlier sentence appeal which lacked merit and had already been considered by this Court.
Court Disposition
Leave to appeal declined
Orders
- Leave to appeal to the Supreme Court is declined
Full Case Text
Judgment text and source record
1 paragraphs
VAN WAKEREN v CHIEF EXECUTIVE OF DEPARTMENT OF CORRECTIONS SC 16/2012 [5 April 2012]IN THE SUPREME COURT OF NEW ZEALANDSC 16/2012[2012] NZSC 24BETWEEN RONALD VAN WAKERENApplicantAND CHIEF EXECUTIVE OF DEPARTMENTOF CORRECTIONSRespondentCourt: Blanchard, William Young and Chambers JJCounsel: Applicant in PersonA M Powell for CrownJudgment: 5 April 2012JUDGMENT OF THE COURTLeave to appeal is declined.____________________________________________________________________REASONS[1] The applicant seeks to challenge the dismissal, by the Court of Appeal,1 of an appeal from a judgment of Toogood J dismissing his application for a writ of habeas corpus.2[2] Three proposed grounds of appeal have been advanced.[3] The first is that of the three Judges who dismissed his appeal, two were High Court Judges who, the applicant infers, had been appointed to sit under s 58A of the Judicature Act 1908 (which deals with criminal appeals) and not s 58B of the same1 Van Wakeren v Chief Executive of the Department of Corrections [2012] NZCA 22.2 Van Wakeren v Chief Executive of the Department of Corrections HC Auckland CIV-2012-404- 208, 26 January 2012.Act (which addresses civil appeals). He maintains that his appeal was a civil appeal. We doubt whether the factual premise underpinning this contention is correct as it is probable that the High Court Judges were appointed under both ss 58A and 58B. But whether this is so or not is of no moment given s 58G of the Judicature Act.[4] The second basis for the proposed appeal is that the warrant issued by the Court of Appeal following his earlier sentence appeal did not conform to s 91(2) of the Sentencing Act 2002 which requires that a warrant must state whether or not the offender was legally represented. It is true that this is the effect of s 91(2) of the Sentencing Act and it is also true that the warrant issued by the Court of Appeal did not conform to the section. But this defect in the warrant, which is well capable of correction, does not justify the issue of a writ of habeas corpus as the error does not affect the validity of the conviction, the sentence or the consequent detention.3[5] The third and final proposed ground of appeal involves a challenge to the minimum period of imprisonment fixed by the Court of Appeal on the applicant'ssentence appeal.4 This is a challenge to the substance of the Court of Appeal'sdecision on the earlier sentence appeal which was the subject of an unsuccessful subsequent application for leave to appeal to this Court.5 We are satisfied that there is no merit in this argument.[6] For these reasons leave to appeal must be declined.Solicitors:Crown Law Office, Wellington3 R v Governor of Lewes Prison ex parte Doyle [1917] 2 KB 254 at 266 and 273-274 and J Farbey and RJ Sharpe The Law of Habeas Corpus (3rd ed, Oxford University Press, Oxford, 2011) at 50-52.4 Van Wakeren v R [2011] NZCA 503.5 Van Wakeren v R [2011] NZSC 147. An application to recall the refusal by this Court of leave to appeal is being dismissed in a judgment being delivered simultaneously with this judgment, seeVan Wakeren v R [2012] NZSC 23.