This case has a grain of the serious in it alongside the extremely bizarre bit of it that I'm going to post, in that the main character obtained a second appeal and the dismissal of certain convictions by launching a wave of principally civil litigation against various parties that he alleged to have contributed to his conviction. The Attorney-General then applied to have him declared a vexatious litigant, this is one of the decisions in that proceeding which summarises the history of the matter nicely. The alleged crimes are pretty horrible as is the possible miscarriage of justice so this is perhaps better filed under the heading of odd rather than amusing.
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The facts
[3] This is a most unusual case. The Attorney-General applied under what is now s 88B of the Judicature Act 1908 for an order that no civil proceeding should be issued by Mr Palmer without leave of the High Court because he was a vexatious litigant. At the time of our interim judgment, reported in [2005] NZAR 46, Mr Palmer was serving a sentence of preventive detention following convictions after jury verdicts in this Court at Auckland on two counts of sexual violation. He had previously been convicted in this Court at Rotorua on two lesser sexual charges. His appeal to the Court of Appeal had been dismissed, as had his subsequent application to the Governor-General under s 406 of the Crimes Act 1961 for the exercise of the Royal prerogative of mercy by referring the convictions to the Court of Appeal.
[4] Subsequently Mr Palmer issued a large number of proceedings against a variety of parties. We found no fewer than nine to be vexatious as infringing the principle that a conviction must be tackled either directly by appeal, or by application (under s 406 or otherwise) for the exercise of the prerogative of mercy, or by application for judicial review of Crown failure to exercise that prerogative or statutory power. The claims found to be vexatious were:
• one against the manufacturer of a public toilet the door of which is said to have opened unexpectedly so as to subject him to one of the Rotorua charges
• an appeal against a judgment striking out that proceeding;
• the private prosecution of the boyfriend of the primary Auckland complainant;
• an application for orders directing the issue of seven informations of perjury against that complainant
• an application for habeas corpus alleging that the Crown and defence counsel had conspired to exclude the DNA evidence, the primary Auckland complainant had committed perjury, the trial judge had displayed lack of impartiality, and the judge who presided over the Court of Appeal hearing was biased
• proceedings against Telecom alleging that it was responsible for its witness’s giving incorrect evidence at the Auckland trial
• proceedings for judicial review of the Auckland committal
• proceedings against the primary Auckland complainant alleging malicious prosecution
• the counterclaim struck out by Williams J for the reasons reported at [2004] NZAR 374.
[5] But in the interim judgment we declined, in the exercise of discretion, to make the order sought by the Crown. That was largely because there were two disturbing features of the case, to which we referred in the interim judgment and on which the Court of Appeal later relied in allowing Mr Palmer’s appeal against conviction on a subsequent reference under s 406.
[6] One was that the trial judge had declined Mr Palmer’s counsel leave to cross-examine the complainant on the provenance of a semen stain on her clothing which she told the Police had been deposited by Mr Palmer in the course of his alleged offending but which the ESR had reported had come from her boyfriend.
[7] The other was that at the trial a Telecom witness had given evidence that no telephone call had been made to the complaint’s home during the period when she asserted she was with Mr Palmer elsewhere; yet evidence given by a Telecom witness under subpoena at the private prosecution of the boyfriend established that there had been four such incoming calls.
[8] Following a subsequent reference under s 406 the Court of Appeal found that Mr Palmer had suffered a miscarriage of justice.
Attorney-General v Palmer 23 August 2007 (HC)
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