Alkazaz v District Court at Auckland
[2023] NZHC 1041
•3 May 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2022-404-1510
[2023] NZHC 1041
UNDER the Criminal Procedure Act 2011 IN THE MATTER OF
A judicial review
BETWEEN
AHMED ALKAZAZ
Applicant
AND
DISTRICT COURT AT AUCKLAND
Respondent
Hearing: 24 April 2023 Appearances:
The applicant in person
No appearance for respondent (abiding)
J E L Carruthers, counsel assisting the courtJudgment:
3 May 2023
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 3 May 2023 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
ALKAZAZ v DISTRICT COURT AT AUCKLAND [2023] NZHC 1041 [3 May 2023]
Introduction
[1] Mr Alkazaz sought to bring a private prosecution in the District Court against his former employer, Enterprise-IT Ltd (E-IT), and two of its employees. He alleged they committed perjury during a proceeding he brought against E-IT in the Employment Relations Authority (ERA). Judge D J Sharp directed that the charging documents not be accepted for filing.1 The Judge considered the evidence provided by Mr Alkazaz was insufficient to justify a trial and that the proposed prosecution was an abuse of process.2
[2]Mr Alkazaz asks this Court to judicially review Judge Sharp’s decision.
Background
[3] Mr Alkazaz was briefly employed with E-IT in 2016. E-IT dismissed him in December 2016. Mr Alkazaz commenced a proceeding before the ERA for unjustified dismissal.
[4] Two of Mr Alkazaz’s superiors at E-IT, Messrs Sadler and Zemba, completed witness statements in the unjustified dismissal proceeding. They outlined concerns they had with Mr Alkazaz’s performance. Mr Alkazaz says that when Messrs Sadler and Zemba were asked by Mr Alkazaz’s counsel at the investigation hearing about certain documentation generated during Mr Alkazaz’s employment, they said it had been lost or purged from E-IT’s servers.
[5] On 22 December 2017, the ERA issued a determination finding that E-IT had unjustifiably dismissed Mr Alkazaz. The ERA awarded him lost remuneration totalling $28,749.99 and $15,000 compensation for humiliation, loss of dignity and injury to feelings. However, the ERA reduced the amounts ordered to be paid to Mr Alkazaz by 20 per cent for contributory conduct on his part.
[6] Mr Alkazaz was unhappy with the finding of contributory conduct. He considered the evidence of Messrs Sadler and Zemba had contributed to that finding.
1 Alkazaz v Enterprise IT Ltd DC Auckland, 20 June 2022, Judge D J Sharp.
2 At [8]-[12].
Mr Alkazaz therefore set about obtaining the documentation Messrs Sadler and Zemba said had been lost or purged.
[7] Mr Alkazaz first requested it from E-IT, which refused to engage with the request on the ground it was vexatious. He then requested it directly from Air New Zealand, one of E-IT’s clients. Following a lengthy email exchange between Mr Alkazaz and Air New Zealand’s then privacy officer, some of the documentation was provided.
[8] In August 2018, Mr Alkazaz applied to reopen the ERA proceeding. One of his grounds was that Messrs Sadler and Zemba had perjured themselves. His application was heard by the same ERA member who had heard Mr Alkazaz’s unjustified dismissal claim. The ERA issued its determination on Mr Alkazaz’s re-opening application on 30 September 2019. In relation to the allegation of perjury, the ERA said this was a serious allegation and that perjury required a wilful or intentional telling of an untruth.3 The ERA then said:
[42] I take a significant part of the perjury allegation to relate to an issue about the availability of the documents obtained from e-IT’s client by private request. Two witnesses said documents were unavailable being electronically lost (during a server failure) or automatically purged after six months. Mr Alkazaz says that “this is an explicit fabrication as it is evident now that those emails exist”. He says the emails were retained on the client’s servers and not e-IT’s servers.
[43] Even from Mr Alkazaz’s affidavit, it is clear that the evidence given at the investigation meeting was limited, namely that e-IT did not have those documents. The evidence at the investigation meeting was not that the client did not have the documents. The fact that the client did have the documents does not establish perjury.
[9] The ERA therefore declined to re-open the investigation. Mr Alkazaz challenged the ERA’s decision in the Employment Court. This required that Court to make a fresh decision on his re-opening application. In a judgment dated 22 October 2020, the Court dismissed Mr Alkazaz’s application.4
3 Alkazaz v Enterprise IT Ltd [2019] NZERA 560 at [40]–[41].
4 Alkazaz v Enterprise IT Ltd [2020] NZEmpC 171.
[10] Mr Alkazaz unsuccessfully sought leave from the Court of Appeal to appeal the Employment Court’s decision.5 Then, in 2021, Mr Alkazaz applied to the Supreme Court for leave out of time to appeal directly against the Employment Court’s decision.
On 16 August 2021, the Supreme Court declined leave.6
[11] By the time the Supreme Court declined leave, Mr Alkazaz had applied to the Employment Court for an extension of time to bring a late challenge against the original ERA decision.7 In making that application, Mr Alkazaz again claimed that the evidence from E-IT was obtained by perjury.8 On 6 May 2022, the Employment Court declined Mr Alkazaz’s application.9 The Court said that Mr Alkazaz had a short period of employment (around 90 days) with E-IT more than five years ago. He had since undertaken extensive litigation against E-IT, leading to more than 20 separate determinations or judgments at all levels in the Court system. It was not in the interests of justice for E-IT to have to continue to face litigation brought by Alkazaz.10
[12] Meanwhile, Mr Alkazaz had also referred his perjury complaint to Police. On 3 December 2021, a Police sergeant advised Mr Alkazaz that the ERA determination dated 30 September 2019 (declining Mr Alkazaz’s application to re-open the investigation) had concluded there was insufficient evidence to establish perjury. The sergeant said Police would not be investigating the matter further.
Mr Alkazaz’s proposed private prosecution
[13] In May 2022, Mr Alkazaz proposed to commence private prosecutions in relation to his claim of perjury. He filed six charging documents in the District Court, two against each of E-IT and Messrs Sadler and Zemba. The offence descriptions against Messrs Sadler and Zemba are:
Committed Perjury multiple times at the ERA alleging untruthfully that all the documents related to my work performance and work records were unavailable being electronically lost (during a server failure) or automatically purged after six months.
5 Alkazaz v Enterprise IT Ltd [2021] NZCA 413.
6 Alkazaz v Enterprise IT Ltd [2021] NZSC 101.
7 At [5].
8 Alkazaz v Enterprise IT Limited [2022] NZEmpC 74 at [3].
9 Alkazaz v Enterprise IT Limited [2022] NZEmpC 74.
10 At [22], [28] and [30].
Committed Perjury at the ERA and fabricated evidence about my work performance and events at the workplace. Multiple instances of this offence were committed as detailed in my affidavit supporting these charges.
[14] The offence descriptions against E-IT are essentially the same, except that it is said that E-IT instructed two staff members to commit perjury.
[15] In support of the proposed private prosecution, Mr Alkazaz filed two affidavits. One was a detailed affidavit by Mr Alkazaz, the other a brief affidavit from his wife. Mr Alkazaz also filed submissions in support. In his submissions, Mr Alkazaz said he sought not only punishment of perjury under s 109 of the Crimes Act 1961 but also monetary compensation of $100,000 for the reputational damage “imposed by the perjury committed by [E-IT] and [Messrs Sadler and Zemba]”.
Judge Sharp’s decision
[16] Judge Sharp noted that Mr Alkazaz sought damages from the defendants. His Honour said no such remedy was available and the proposed private prosecution was misconceived.11
[17] The Judge directed under s 26(3) of the Criminal Procedure Act 2011 that the charging documents not be accepted for filing. His Honour’s reasons are contained in the following paragraphs (footnotes omitted):
[5] As an opening consideration, the proposed prosecutor should be aware that in many criminal trials (both jury and judge alone) evidential conflicts between the defence and prosecution arise. Frequently the issue of credibility will be a matter of concern to one or both sides. The suggestion is often made that witnesses have lied or are challenged about being dishonest about their evidence. Very few of these challenges result in perjury charges being laid. To an extent this is because the elements of the charge require specific proof. Section 112 of the Crimes Act 1961 provides that no one may be convicted of an offence of perjury on the evidence of one witness alone unless the evidence is corroborated in some material particular by evidence implicating the defendant. …
[6] Two of the charging documents are against Enterprise IT Limited. The mens rea requirements of the perjury charges refer to the statement made by a ‘witness’. The charging document against the company is not accepted. A company cannot legally commit perjury.
11 Alkazaz v Enterprise IT Ltd DC Auckland, 20 June 2022, Judge D J Sharp at [3].
[7] As regards the proposed prosecution of Paul Sadler and Stephen Zamba [sic] the Court of Appeal has held there is a need for careful analysis of the representation allegedly made and its falsity. The defendant must be shown to know the statement is false and have an intention to mislead.
[8] The terms of the section do not cover half-truths or true statements which are misleading because no mention is made of other facts which are needed if the true position is to be appreciated. Upon reading the extensive material filed by the proposed prosecutor, no basis for proof of the defendants knowingly and wilfully providing false evidence under oath is present aside from assertions of such by the proposed prosecutor. This material provided does not withstand the Court of Appeal’s requirements for establishing the elements of perjury.
[9] The finding of ticket material held by Air New Zealand after the hearing and after a search for this material was conducted does not relegate a witness’s assertion that the ticket material was not held by them or had been purged from their system, to being perjury. To show that what was said was more than a half truth or misleading statement requires further corroborative material.
…
[11] Finally this proceeding is in effect a form of collateral challenge to the Employment Relations Authority decision. Clearly the proposed prosecutor is dissatisfied with the original decision, 5 years of litigation have resulted. The issuing of a criminal prosecution on the material provided has every appearance of an abuse of process.
[12] The charging documents are not adequately supported for filing and pursuant to s 26(3) of the Criminal Procedure Act 2011 I direct that the charging documents not be accepted for filing. This is on the basis that material provided is insufficient to justify a trial, alternatively and as well as, that the proposed prosecution is an abuse of process.
Mr Alkazaz’s application and submissions
[18] Mr Alkazaz accepts that he is not entitled to any remedies on a private prosecution and that he cannot bring a prosecution for perjury against E-IT. He applies to judicially review the balance of Judge Sharp’s decision.
[19] Mr Alkazaz is self-represented. His application and submissions do not identify clear grounds of judicial review. However, he makes two essential complaints. One is with Judge Sharp’s conclusion in [9] of his decision (quoted above). In his written submissions, Mr Alkazaz says the Judge’s conclusion was incorrect because:
The witnesses’ statement that the ticket material no longer exists is not a half- truth but a complete falsehood, intended to mislead both the ERA and the
Applicant [Mr Alkazaz] and circumvent formal document discovery. Their claim was not that they did not have the material, but that it was irretrievably lost. The fact that Air New Zealand conducted a search for the documents does not change this, this is how to find documents in any documents management system, search for it. It is concerning that His Honour reached the conclusion that the evidence did not meet the threshold of perjury in this case based on this erroneous narrative.
[20] Mr Alkazaz’s other complaint is with the Judge’s conclusion that the private prosecution would be an abuse of process. Mr Alkazaz says that as a non-native speaker of English, he did his best to navigate the complexities of the New Zealand legal system. He says that it would be unjust to punish a litigant in person for any errors he made in pursuing his claim of perjury through his earlier avenues of litigation. Such errors should not, he submits, mean that pursuing the perjury claim through the correct avenue of a private prosecution is an abuse of process.
Response to application
[21] The respondent is the District Court. As is usual, the District Court abides this Court’s decision on Mr Alkazaz’s application. In those circumstances, Mr Carruthers was appointed as counsel to assist the Court.
[22] Mr Carruthers filed helpful and balanced submissions. He noted that an applicant for judicial review has to show an error in the procedure the Judge followed, such as a failure to observe a mandatory step in the process, a misapplication of relevant legal principles, taking into account irrelevant considerations, or failing to take into account relevant ones. He observed there was little point in contesting the Judge’s assessment of the merits unless it was potentially so wrong as to be irrational.
[23] Mr Carruthers submitted that Mr Alkazaz’s application sought to challenge Judge Sharp’s assessment of the merits. However, Mr Carruthers identified a potential procedural misstep by Judge Sharp. Mr Carruthers fairly submitted that, although this misstep was not raised by Mr Alkazaz as a ground of review, it needed to be considered.
Was there a procedural misstep?
[24] The commencement of a private prosecution is controlled by s 26 of the Criminal Procedure Act. Relevantly, this provides:
26 Private prosecutions
(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
…
[25] Under s 26(1), a Registrar may accept a private charging document for filing or refer it to a Judge for a direction that formal statements and exhibits be filed. In this case the Registrar referred Mr Alkazaz’s charging documents to Judge Sharp under s 26(1)(b).
[26] Section 26(1)(b) envisages that if the charging document is referred to a Judge, the Judge will make a direction that the applicant file formal statements and exhibits. The record of proceeding from the District Court shows that the material that Mr Alkazaz filed in support of his charging documents pre-dates those documents by a few days. The record does not include any s 26(1)(b) direction from Judge Sharp. I infer that Judge Sharp did not make any direction under s 26(1)(b).
What is the consequences of the procedural misstep?
[27] As Mr Carruthers submitted, the courts have on several occasions quashed decisions to accept or decline private charging documents for filing on the ground the Judge did not make a direction under s 26(1)(b), even where supporting material had been filed with the charging documents.12 Brewer J explained why in H T v The District Court at Auckland:13
[25] Section 26 is specific in its direction as to what material a Judge can take into account in deciding whether there is sufficient evidence to justify a trial. There is good reason for that. A person who knows that his or her statement is being taken for the purpose of a Court proceeding, and that they are a potential witness in a criminal trial, is likely to be careful in giving the statement and declaring it to be true. Further, the provision of a formal statement indicates that the person giving it is available to be a witness.
[28] In D v Auckland District Court, where the applicant filed supporting material with her charging documents, the Court of Appeal said that if the Judge had failed to make a direction under s 26(1)(b) that was a “fundamental procedural error” and a “potential breach of natural justice” (in depriving the applicant of the opportunity to put her best evidence forward).14
[29] I accept Mr Carruthers’ submission that a failure to make a direction under s 26(1)(b) will not always invalidate the Judge’s decision. The Judge may otherwise have afforded the applicant the opportunity to file further evidence and exhibits, in which case the failure to make the s 26(1)(b) direction will have been of no consequence.15
[30] Mr Alkazaz was not otherwise afforded that opportunity. I consider that Judge Sharp’s procedural error infects his Honour’s conclusion that the material provided by Mr Alkazaz was insufficient to justify a trial. This means it is unnecessary for me to address Mr Alkazaz’s challenge to the merits of that conclusion.
12 H T v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459; Prescott v The District Court at North Shore [2017] NZHC 2828; Dunstan v District Court at Auckland [2022] NZHC 3308.
13 H T v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459.
14 D v Auckland District Court [2022] NZCA 477 at [19] and [40]
15 As was held to be the case in Mitchell v Porirua District Court [2017] NZHC 1331 at [74]–[76].
[31] Judge Sharp also rejected the charging documents on the ground that the proposed prosecution was an abuse of process. Section 26(3) states two grounds on which a Judge may direct that charging documents not be accepted for filing. The first is where the Judge considers the evidence provided by the applicant “in accordance with subsection (1)(b)” is insufficient to justify a trial. The second is where the Judge considers the proposed prosecution is otherwise an abuse of process. The second ground is not expressed as having any link to the evidence provided in accordance with s 26(1)(b). It is apparent from this contrast (and from the language of s 26(1)(b) itself) that the purposes of the direction are to assist the Judge to decide whether there is evidence sufficient to justify a trial and to give the opportunity to the applicant to put their best evidence forward.
[32] I consider that it follows that a failure to make a s 26(1)(b) direction will not generally affect a Judge’s decision to reject a charging document on the abuse of process ground. There might be rare cases where the applicant can show that, had such a direction been made, he or she would have provided further material that was relevant to any concern about an abuse of process. I am satisfied that Mr Alkazaz would not have done so. When I asked him what further material he might have filed had a direction been made, he merely said he would have attempted to file a statement from a potential witness from Air New Zealand.
[33] For these reasons, I consider that Judge Sharp’s failure to make a direction under s 26(1)(b) did not undermine the abuse of process ground of his decision.
Is there a substantive reviewable error in Judge Sharp’s abuse of process decision?
[34] The issue that remains is whether there is any substantive reviewable error in the abuse of process part of the Judge’s decision.
[35] Judge Sharp said that the proposed prosecution was a form of collateral challenge to the ERA decision and that five years of litigation had resulted from Mr Alkazaz’s dissatisfaction with that decision. For those reasons the Judge concluded the proposed prosecution was an abuse of process.
[36] Mr Alkazaz has not persuaded me that there is any substantive reviewable error in this aspect of Judge Sharp’s decision. First, the Judge’s reasons were in accordance with legal principle. The reasons reflect concerns that were recognised by the Court of Appeal in D v Auckland District Court:16
[14] Abuse of process concerns can be particularly acute in the private prosecution context. Private individuals may instigate criminal proceedings to “coerce, intimidate or threaten others”, or “with the intention to ‘humiliate, embarrass or otherwise extract revenge’”. At other times private prosecutions may be brought for collateral purposes. A further concern in some cases may be that:
… private prosecutions provide just another court mechanism for vexatious litigants to achieve their purpose. When undeserving matters are brought to court, it creates inefficiency, clogs the system with unnecessary cases, wastes public money and jeopardises the repute of the overall process.
[37] Secondly, Mr Alkazaz has not pointed to any irrelevant consideration taken into account by the Judge or suggested there was some relevant consideration the Judge failed to take into account. Nor is there any basis on which he could argue that the Judge’s decision was irrational.
[38] Indeed, I consider the Judge’s decision was plainly correct. Mr Alkazaz has repeatedly failed in his attempts to pursue his claim of perjury. E-IT and Messrs Sadler and Zemba have, as a result of those attempts, been drawn into years of litigation. Courts at every level have had their resources diverted towards dealing with them. That Mr Alkazaz sought damages when he first filed the charging documents reinforces that he brought the proposed prosecution for a collateral purpose. That Mr Alkazaz represents himself and is not a native English speaker does not detract from any of these points.
Result
[39]Mr Alkazaz’s application for judicial review is dismissed.
[40]There is no order as to costs.
16 D v Auckland District Court [2022] NZCA 477 at [14] (footnotes omitted).
Campbell J
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