Attorney-General v District Court New Plymouth HC New Plymouth M 19/01

[2001] NZHC 630

IN THE HIGH COURT OF NEW ZEALAND
NEW PLYMOUTH REGISTRY M 19/01

UNDER THE JUDICATURE ACT 1972

BETWEEN THE ATTORNEY GENERAL
Applicant

AND THE DISTRICT COURT AT NEW PLYMOUTH
First Respondent

AND ALISTER JOHN FRANCIS FOX
Second Respondent

Hearing: 6 July 2001

Counsel: T Brewer for the Applicant
No appearance for the First Respondent
P Brosnahan for the Second Respondent

Judgment: 11 July 2001

JUDGMENT OF SMELLIE J

Solicitors:
T C Brewer, Crown Solicitor, New Plymouth, for Applicant
Debbie Goodlet, Solicitor, 9 Market Place, Wanganui for Second Respondent

Introduction

[1] This is an application pursuant to Judicature Amendment Act 1972 for a judicial review of a decision of the First Respondent dated 26 March 2001 in which two informations which had previously been withdrawn on 6 March 2001 with the leave of the First Respondent but then re-laid on 19 March 2001 were dismissed for abuse of process.

[2] The Statement of Claim alleges six errors of law by the First Respondent in relation to the decision of 26 March 2001 and seeks the following orders.

[a] An order setting aside the decision of the First Respondent dated 26 March 2001 (pursuant to section 4(2) of the Judicature Amendment Act 1972)

[b] An order directing that the First Respondent reconsider the issue (pursuant to section 4(5) of the Judicature Amendment Act 1972).

[3] There was no appearance for the First Respondent nor any indication that that
party would abide the decision of this Court. There is, however, proof of service on the First Respondent on the file.

[4] Late in the hearing when Mr Brewer was making submissions in reply counsel advised, in answer to enquiry from the Bench, that the matter is “a test case to a large extent”. The Applicant is of the view that if the First Respondent’s decision of 26 March last is allowed to stand the threshold for abuse of process cases will have been unacceptably lowered and the Solicitor-General’s supervising role in respect of criminal proceedings significantly prejudiced.

[5] That the case was of such significance was not apparent to me on 2 July when I agreed at the Crown’s request to hear it at short notice on Friday of that week. Had I been so appraised I would have sought a full Court recommending that a Judge with more recent experience of District Court practice than myself be involved. I raised the possibility of the case being re-argued before such a Court but both counsel urged me to see the matter through leaving the parties to their rights of appeal if dissatisfied. At the conference on Monday the 2nd I ordered, inter alia, that the District Court file was to be brought up and that counsel were to provide an agreed memorandum of facts. The case was set down for a two-hour hearing commencing at 11.30 am on Friday the 6th. The District Court file did not arrive and had to be sent for after the case was called. The agreed facts memorandum was inadequate and the case required over twice the time estimated by counsel. In addition, it became apparent as the hearing proceeded that the submissions on both sides had not focussed sufficiently on the significance of section 36 of the Summary Proceedings Act 1957 pursuant to which leave to withdraw the original complaints had been given on 6 March 2001. I was obliged to reserve leave to file supplementary written argument timetabled to arrive during the following week.

The facts

[6] These are set out in four places in the proceedings so far. There are differences of detail and emphasis in each version. First there is the summary of facts on which the sentencing of the Second Respondent proceeded. Second, there is the First Respondent’s summary of the facts in the judgment of 26 March. Next, there is counsel’s agreed memorandum and finally, the Statement of Claim pleads the essential framework which the Second Respondent admits in his Statement of Defence and which must be taken as admitted by the First Respondent in the absence of a Statement of Defence from that party.

[7] I hesitate to provide a fifth version but none of those presently before the Court fully capture what I apprehend are to be the important legal and policy issues that the case throws up.

[8] The starting point is of course the Second Respondent’s criminal behaviour at about 12.30 am on Saturday 25 November 2000. He was aged 32 and a drainlayer by occupation. He had been drinking since about 5 pm the previous day and was intoxicated. Throughout he had in the pocket of an oilskin vest he was wearing a home-made .22 calibre single-shot pistol plus 48 rounds of ammunition. At about 12.30 am on the Saturday, having recently left licenced premises in the central business area of Hawera, he chose to walk through a group of youths making a derogatory remark as he did so. When one of the group asked what he had said he took out the pistol and shot the enquirer. The bullet entered the victim’s upper shoulder, travelled through the top of his arm and lodged in the rear wall muscle of his chest. The victim collapsed shortly afterwards and was hospitalised. He recovered but could not be located after discharge so there was no victim impact report.

[9] The Second Respondent walked off after he had shot the youth. He was, however, followed by a witness who saw him discharge a second shot in the vicinity of a church and a number of houses but it was not clear what, if anything, he had aimed at. In due course the Second Respondent was apprehended by the Police as he was about to reach his home. Initially he was aggressive and uncooperative and had to be subdued. In due course however, he admitted orally to his actions and acknowledged that he also had a broken-down sawn-off shotgun hidden at his home.

[10] Arising out of all those circumstances on either 27 or 28 November 2000 the Second Respondent was charged with:

[a] Wounding with intent to cause grievous bodily harm pursuant to section 188(1) of the Crimes Act 1962; and

[b] Being unlawfully in possession of a pistol pursuant to section 50(1)(a) of the Arms Act 1983; and

[c] Without reasonable cause discharging a pistol with reckless disregard for the safety of others, pursuant to section 53(3) of the Arms Act; and

[d] Carrying a pistol except for some lawful, proper and sufficient purpose pursuant to section 45(1)(a) of the Arms Act.

[11] All those charges were laid indictably and when he came before the Court he was remanded in custody without plea.

[12] There then developed what were apparently very extensive negotiations lasting until early March 2001 between the Police and the Second Respondent’s counsel, Mr Brosnahan. In due course an agreement was reached. The negotiation period was described in the decision of 26 March as follows.

“During this time, the admissibility of and potential difficulties with Mr Fox’s statement to the Police were canvassed between Mr Brosnahan and the Police. There were discussions, it can be inferred between Inspector Sheppard and/or Detective Sergeant Sutton with the officer in charge of the case. Both the prosecution and the defence put forward positions as to what would or would not be acceptable.”

[13] In the agreed statement of counsel it is recorded that in reaching the agreement the Police took into account first the likely result upon sentencing, secondly “Police staffing situation. Since 1 January 2001 the Hawera CIB unit had 50-75% of its staff absent for a variety of reasons. It was fully extended investigating criminal activity in its area” and further that there was a significant enquiry back-log.

[14] The agreement reached between Mr Brosnahan on behalf of the Second Respondent and the Police involved the following steps:

• 5.3.01 a further information pursuant to section 188(2) was laid charging the Second Respondent with wounding with intent to injure;

• 6.3.01 the prosecution applied for leave to withdraw the charges set out in (a), (c) and (d) above, which leave was granted by the Court pursuant to section 36 of the Summary Proceedings Act 1957;

• the Second Respondent then made an application pursuant to section 153A of the Summary Proceedings Act to be brought before the Court for the purposes of entering pleas of guilty to the fresh charge of wounding with intent to injure and possession of the sawn-off shot gun.

[15] The next thing that happened was that the Police referred their file to Crown Solicitor in New Plymouth. The agreed statement of facts in paragraphs 6, 7 and 8 records what happened in respect of this reference by the Police as follows:

“6. The Police, in compliance with a standing requirement of the Solicitor-General, referred their file to the Crown Solicitor at New Plymouth so that he might represent the Crown on sentencing.

7. The Crown Solicitor in Hamilton advised the Police that the charges to which Mr Fox had pleaded guilty did not adequately reflect the overall criminality of Mr Fox’s offending and recommended that the withdrawn firearms charges (described in (c) and (d) above) be relaid.

8. In accordance with the Crown Solicitor’s recommendations the Police on 19 March 2001 laid fresh informations containing charges identical with those which had been laid in (c) and (d) above.”

[16] When that was done and the Second Respondent appeared for sentencing on 20 March his counsel applied to have the new charges stayed. The fixture for the hearing of that application was scheduled for 26 March, the day on which the decision which is challenged in this application for judicial review was delivered. I shall discuss that decision in a moment. But to complete the facts scenario Mr Fox finally came before the Court for sentencing on 5 April when he was sentenced to five years imprisonment on the wounding with intent to injure and a further four months cumulative on the five years in respect of the sawn-off shotgun charge.

The challenged decision

[17] Under the heading “Background” the decision first set out the circumstances of the charges, followed by a further section under the heading “History” dealing with the negotiations that had taken place between Mr Brosnahan and the Police followed by the intervention of the New Plymouth Crown Solicitor on behalf of the Solicitor-General leading to the re-laying of two of the charges on 19 April.

[18] Under the heading “The issue” the following appears.

“The question before the Court today is whether in the circumstances, these re-laid charges should remain or be struck out or dismissed as an abuse of process of one sort of another.”

[19] Under the heading “The Argument” the submissions of Mr Brosnahan on the one hand and Mr Brewer on the other, were summarised. The submissions made by Mr Brosnahan appear to be substantially the same as those made to me in this matter. First he emphasised that agreements reached should be adhered to, especially as here where they involved senior Police officers after careful consideration. He disputed that his client’s position would not be prejudiced by allowing him to vacate his pleas of 6 March and argued that to allow the fresh charges to stand would offend the concept of public and open dealings with the prosecution, which, he submitted, were “essential these days for the proper and efficient running of the District Court”. He complained that an attempt was being made to increase the penalty his client would suffer and he argued that the charge in relation to carrying the .22 calibre pistol was really subsumed in the wounding charge while the reckless discharge added nothing of moment. Mr Brosnahan cited the decision of Sinclair J in Delellis v R (1989) 4 CRNZ 60, claiming that what the Police were attempting to do in this case was the kind of back-track which Sinclair J had condemned in that case. Mr Brosnahan also indicated that the Second Respondent did not seek to vacate his earlier plea.

[20] The decision also summarises Mr Brewer’s submissions. Again, what was said in the lower Court on 26 March heralds a rather more carefully developed argument addressed to me by the Crown in this matter. The supervisory role of the Solicitor-General was emphasised. The right of the Police to negotiate pleas was acknowledged but it was said that did not bind the Solicitor-General. The Crown Solicitor went on to argue that he had reached the conclusion that the full range of charges should have remained because of the seriousness of the case, and further that when he had put that to the Police they had acknowledged overwork and lack of resources had led to them agreeing to a proposition put forward by the defence. It seems that Mr Brewer then emphasised the Crown’s duty to ensure that the Court can address the true extent of criminality. Counsel cited the Court of Appeal in Moevao v Department of Labour 1980 1 NZLR and the English decision of Townsend, Dearsley and Bretscher [1997] CR. APP.R. 540. The decision then reads:

“Mr Brewer next said that there needs to be some unfairness or oppression, to the extent that allowing the prosecution to proceed would amount to a misuse of the process of the Court and that here, the situation in the absence of the re-laid charges, left the Court with a charge which was manifestly inadequate in the circumstances.

He acknowledged that were the charges or the re-laid charges to remain, it would be proper for the Court to permit the vacation of the present guilty pleas, so that Mr Fox was returned to the position that he was in prior to their withdrawal . . . .”

[21] The final page of the decision is headed “Decision” and reads as follows.

“In my view, to allow the present re-laid charges to continue, would amount in the circumstances to oppressive conduct in terms of Delellis.

As a matter of every day routine, accommodations are reached between the Police and the defence about charges to be continued with and withdrawn. It is proper that such arrangements, if made after due consideration at appropriate level, be relied on. It is no excuse in my view, to say that an incorrect decision was reached through overwork and lack of resources.

It is the process of the Court itself which is involved in terms of Moevao. The charges here were initially laid and were withdrawn by the leave of the Court after an accommodation was reached between the prosecution and the defence.

I do not think that it can be said that Mr Fox can be returned exactly to the position that he would have been in by the withdrawal of his pleas. Although there may well be difficulty in the Crown relying on a previous plea if the charges remained and matters went to trial, to say that he was in exactly the same position, would be an over-simplification. There is prejudice in terms of Townsend, Dearsley and Bretscher.

This is a case where to use Sinclair J’s words, “the Police have backtracked on an arrangement” and for the Court to permit such a course would “bring the administration of justice into disrepute among right-thinking people.”

In the circumstances, the re-laid charges cannot remain and are dismissed as an abuse of process.”

The Applicant’s allegations in the Statement of Claim

[22] As earlier recorded the Statement of Claim first sets out the essential facts and then raises two causes of action. The first headed “Illegality” and the second “Unreasonableness”. In reality however, both causes of action rely on perceived errors of law, Mr Brewer making it clear that under the second cause of action the Crown is not relying on Wednesbury unreasonableness. The particulars of the errors of law are set out in paragraph 9 as follows.

“A The First Respondent was in error in holding that the circumstances identified in the First Respondent’s decision amounted “to oppressive conduct in terms of Delellis (1st paragraph, page 7, First Respondent’s decision)

B. The First Respondent was in error when in holding
“As a matter of every day routine, accommodations are reached between the Police and the defence about charges to be continued with and withdrawn. It is proper that such arrangements, if made after due consideration at appropriate level, be relied on. It is no excuse in my view, to say that an incorrect decision was reached through overwork and lack of resources.” (2nd paragraph, page 7, Second Respondent’s decision)

That impliedly this in the circumstances of the case constituted oppression of or unfairness to the Second Respondent such that to permit the re-laid charges to proceed would amount to an abuse of the process of the Court.

C The First Respondent was in error in holding that:

“It is the process of the Court itself which is involved in terms of Moevao. The charges here were initially laid and were withdrawn by the leave of the Court after an accommodation was reached between the prosecution and the defence.” (3rd paragraph, page 7, Second Respondent’s decision)

D The First Respondent was in error in holding:

“I do not think that it can be said that Mr Fox can be returned exactly to the position that he would have been in by the withdrawal of his pleas. Although there may well be difficulty in the Crown relying on a previous plea if the charges remained and matters went to trial, to say that he was in exactly the same position, would be an oversimplification.”

That this amounted to prejudice in terms of Townsend, Dearsley and Bretscher (4th paragraph, page 7, Second Respondent’s decision)

E The First Respondent was in error in holding:

“This is a case where to use Sinclair J’s words, ‘the Police have backtracked on an arrangement’ and for the Court to permit such a course would ‘bring the administration of justice into disrepute among right-thinking people.’” (5th paragraph, page 7, Second Respondent’s decision)

F Generally the First Respondent was in error in holding that, as a matter of law, the factors described on page 7 of the First Respondent’s decision amounted to an abuse of the process of the Court.”

The law as to abuse of process

[23] The leading case in New Zealand is Moevao v Department of Labour (supra). In that case the Court of Appeal examined the basis for the jurisdiction to stay for abuse of process in some detail. In all the judgments however, it is emphasised that the jurisdiction is to be exercised sparingly and only in cases where the abuse can be described as wrongfully making use of the process of the Court itself. Thus Richmond P, in his judgment at 470, line 50 said:

“. . . It cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way that falls short of establishing that the process of the Court is itself being wrongfully made use of.”

[24] Richardson J in his judgment at page 482, line 22 said:

“The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus us (sic) on the misuse of the Court’s process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of Court . . . While the Court must be the Master and have the last word, it is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a Court would ever be justified in intervening.

[25] The cases also make it clear that no specific rules have been laid down for deciding when the jurisdiction should be exercised and, in particular, neither party carries an onus in such a matter, rather it is for the Court to decide whether or not, in all the circumstances, the discretion should be exercised.

[26] Mr Brosnahan was able to refer me to the Australian case of Roha v The District Court of South Australia and State of Australia (1995) 77 A Crim R 16 at 18 and 19, where it was said:

“That the power of a Court to stay criminal proceedings for abuse of process includes the power to stay permanently, has been authoritively settled: Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431. Although the cases have been mostly concerned with preventing the prosecution of proceedings which will result in an unfair trial (Barton (1980) 147 CLR 75), which is strictly speaking a distinct rubric from that of abuse of process, and with preventing the prosecution of proceedings brought for an improper purpose (Williams v Spautz), “it is not possible to state exhaustively all the categories of abuse of process” (Jago v District Court NSW) per Brennan J at 467; 324) The underlying principle was stated in wide terms in the joint judgment of Mason CJ, Dawson, Toohey and McHugh JJ in Williams v Spautz at 520; 437.

“As Lord Scarman said in Sang [1980] AC 402 at 455; (1979) 69 Cr App R 282 at 306 every court is ‘in duty bound to protect itself’ against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour 1980 1 NZLR 464 at 481 in a passage which Mason CJ quoted in Jago at 30; 311. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.”

The remedy may be granted where “the prosecutor can be said to have manipulated or misused the rules of procedure” Derby Crown Court; Ex parte Brooks (1985) 80 Cr App R 164 at 168, Horsham Justices; Ex parte Reeves (1982) 75 Cr App R 326; Brentford Justices; Ex parte Wong [1981] QB 445; (1981) 73 Cr App R 67.

[27] Also helpful is the statement by Lord Salmon in R v Humphrys (1977) AC 1 at 46 where his Lordship emphasised:

“A Judge has not and should not appear to have any responsibility for the institution of a prosecution; nor has he any power to refuse to allow a prosecution to proceed merely because he considered that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the Court and is oppressive and vexatious that the Judge has power to intervene.”

[28] I should also mention the Delellis and Townsend cases since they were relied upon by the First Respondent. Delellis v R (1989) 2 CRNZ 601, a decision of Sinclair J, was a case in which the accused had agreed to inform the Police where some cocaine was hidden on condition that he would not be charged with importing the drug and the Police would stop searching his mother’s house. Having made that arrangement and uplifted the cocaine the Police then backtracked on it and charged Delellis with importing. It was a case in which the accused had irretrievably changed his position to his prejudice on the basis of an agreement reached and it was in those circumstances that Sinclair J refused to allow Delellis to be arraigned.

[29] A further case cited to the District Court on 26 March and referred to in the decision is Townsend, Dearsley and Bretscher (supra). This was a case however in which there was no change of position in terms of an admission by an accused. Rather it was a situation where because the trial Judge had given leave to prefer a single indictment against all three accused, serious prejudice accrued to the third appellant whose witness statement before he in fact was charged, was served on the first appellant, the respective interests of those two appellants being opposed. The facts of the case are complicated but the Headnote appears to summarise the position accurately and reads as follows:

“Held: Allowing the appeals against the conviction, (1) that section 2(2) of the Administration of Justice (Miscellaneous Provisions) Act 1933 imposed no prohibition on joinder of committed and transferred charges. It was permissible to join in one indictment counts founded on separate committals and transfers in respect of one or more defendant; but that in the present case the first appellant had in fact been prejudiced by the presence at the trial of the third appellant whose defence was hostile to the first appellant. Accordingly, his conviction on that count was unsafe. (2) There could be cases of abuse of process outside the categories of fairness and prejudice where the conduct of the prosecution had been such as to justify a stay regardless of whether a fair trial might still be possible but that a breach of promise not to prosecute did not necessarily and, ipso facto, give rise to abuse; that since the third appellant had not changed his position in reliance on his treatment as a prosecution witness nor volunteered information potentially further incriminating himself in reliance on that status he had not been prejudiced thereby but that he had been seriously prejudiced by the service on the first appellant’s advisors of his witness statement which led the first appellant to make a statement implicating the third appellant, and that, had the Judge been aware of this prejudice, he would have been bound to conclude that a stay should be ordered for abuse of process.”

Section 36 of the Summary Proceedings Act 1957

[30] Part II of the Act is headed “Procedure where Defendant Proceeded Against Summarily” and within it under a sub-heading “General provisions as to hearing”. Section 36 appears and reads:

“36.Withdrawal of information by informant - (1) Any information may by leave of the Court be withdrawn by the informant before the defendant has been convicted or the information has been dismissed or, in any case where the defendant has pleaded guilty, before he has been sentenced or otherwise dealt with.

1A. . .

1B. . .

(2) Repealed.

(3) The withdrawal of an information shall not operate as a bar to any other proceedings in the same matter.”

[31] Later still in Part II under a sub-heading “Procedure at hearing” section 64 appears and reads:

“64. Dismissal for want of prosecution not to operate as bar to other proceedings - The dismissal of an information for want of prosecution shall not operate as a bar to any other proceedings in the same matter.”

[32] As can be seen that both sections require orders of the Court to remove informations from the Court list. And in both cases the occurrence of that event “shall not operate as a bar to any other proceedings in the same matter”.

[33] Under section 36 the Court exercises a discretion. While under section 64 if the prosecution is not carried forward by the adducing of evidence to establish the charge, the Court has no real option but to dismiss.

[34] As a matter of principle the discretion provided in section 36 is one to be exercised judicially. That has been recognised by two very senior District Court Judges, namely, Judge R L Kerr in the Police v Blomfield [1981] DCR 508 at 509 “(counsel) submits, and I agree with him, that the Police application to withdraw must be made in good faith and the power conferred (to grant leave) must be used in good faith.” Also Judge J R Callander in Police v Barens [1989] DCR 106 at 109 “under both section 36 and 43 of the Summary Proceedings Act 1957 the Court has a discretion. The discretion must be exercised judicially.” On the other hand Judge C N Tuohy in Police v Wilson [1998] DCR 665 at 672 said “it is settled law that the Police do not have the power to withdraw an information without the leave of the Court: Police v Karaitiana [1992] DCR 153. The best that could therefore have been done by the Police was to apply to the Court for leave to withdraw the charge. The Court might conceivably refuse such leave where the charge is a serious one, capable of proof to conviction. In practice however, in a busy Court, the Court normally accepts a Police application to withdraw a charge with little further enquiry.”

[35] In the absence of an appearance for the First Respondent I do not propose to speculate as to what the circumstances were when leave to withdraw was granted in this case on 6 March last. The assumption must be that the leave was exercised judicially.

[36] That leaves outstanding the correct interpretation of section 36(3), the short point being, do the words “any other proceeding in the same matter” allow of the relaying of the self same information in respect of which leave to withdraw had earlier been sought and granted. Both counsel submitted that the words in question (for both sections 36 and 64) allow of that procedure. The Judge in Blomfield (supra) was of the same view. There an application by the prosecution for adjournment had been refused but an application for leave to withdraw was granted. The informations were then re-laid. At page 510 the learned Judge said:

“Because of the refusal to grant an adjournment, the prosecution, I think had no option as it seemed to wish to continue with the prosecution but to withdraw or get leave to withdraw under section 36.

The Judge must be presumed to know the law and that being the case, in her granting of leave, she must have been aware of the Police power to re-lay the informations which of course, subsequently occurred.”

[37] The decision of the Court of Appeal in Morgan v Ministry of Transport [1980] 1 NZLR 532 (referred to by the Judge in Blomfield) is also instructive. On appeal a blood alcohol case, where due to an oversight a technical step in the chain of proof was missing, was sent back to the lower Court for re-hearing. On a case stated to the Court of Appeal the question was whether a re-hearing should have been ordered in those circumstances. The decision of the Court delivered by McMullin J refers at page 434 to a Privy Council case Reid v The Queen [1979] 2 All ER 905 in which a decision of the Court of Appeal of Jamaica was overturned because it was considered it was not “in the interests of justice as administered under the common law system of criminal procedure that the prosecution should be given another chance to cure evidential deficiencies in its case against the defendant.” Declining to follow that approach, the judgment of the Court of Appeal at line 45 on page 434 reads:

“There are strong indications in the Summary Proceedings Act that Parliament considered that there would be occasions arising in relation to summary prosecutions when the public interest would indeed be best so served by allowing the prosecution a second chance to cure evidential deficiencies. Parliament may have had in mind the conditions of pressure under which summary prosecutions are often conducted and also the fact that many such prosecutions are conducted by prosecutors who are not qualified barristers or solicitors. However that may be, we refer in particular to the powers conferred on a Magistrate (now a District Court Judge) to dismiss an information without prejudice (section 68) or to permit the prosecution to withdraw an information (under section 36) with the result that the withdrawal does not operate as a bar to any other proceedings in the same matter.”

[38] The above judgment in Morgan completes, on page 435 of the report where having referred to some muted criticism made by a High Court Judge on the failure to “give more definite guidance as to the principles that should be applied in exercising the discretion to dismiss an information without prejudice”, the Court of Appeal said “That, however, was quite deliberate as we think it dangerous to attempt to lay down anything approaching hard and fast rules to govern the exercise of a discretion which is conferred by statute in unrestricted terms.”

[39] In his supplementary submissions Mr Brewer referred to the case of Police v Armishaw (1993) 10 CRNZ 461 in which Hillyer J was called upon to determine an appeal by way of case stated relating to the validity of an information laid charging the respondent in respect of a matter for which there had been an earlier information before the Court. The second information had been dismissed on the grounds that the informant was unable to satisfy the Court that the Defendant was never in peril of conviction under the first information. In his judgment the Judge said:

“With respect to the learned District Court Judge however, what does not appear to have been brought to his attention is the provision of section 36(3) that the withdrawal of an information shall not operate as a bar to any other proceedings in the same matter. Therefore the fact that the information was withdrawn did not prevent a further information being laid under section 14 of the Summary Proceedings Act provided that the information was within time.”

[40] Mr Brosnahan, in his supplementary submissions in reply, referred to the English case of R v Bloomfield [1977] CR.APP.R. 153 where the prosecution had stated to the Court in the presence of the accused and his counsel that it would offer no evidence when the matter came to trial. The Court said:

“It seems to us that whether or not there was prejudice, it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the Court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.”

[41] That case is somewhat like the case of Reid v Attorney-General (supra) which the Court of Appeal in Morgan (supra) declined to follow. It seems to me also that in advancing these further submissions Mr Brosnahan has sought to expand upon the agreed memorandum of facts to fit them more closely to the Bloomfield case. Be that as it may, however, Bloomfield does not bind me and Morgan does and I am not persuaded that the former authority or the other submissions made by Mr Brosnahan can override section 36(3) of the Summary Proceedings Act and the New Zealand authorities.

[42] Given the submissions of both counsel and the apparently settled acceptance by the District Court Bench of the power to re-lay after granting leave to withdraw, and the observations of the Court of Appeal in Morgan, I hold that section 36(3) permitted the re-laying of the two firearm informations that had earlier been withdrawn.

[43] For the sake of completeness, I draw attention to the fact that although the section 188(1) wounding with intent to cause grievous bodily harm charge had been withdrawn, it was not possible for the Crown to re-lay it. That was because it had been replaced by a fresh information alleging injuring with intent to injure pursuant to section 188(2) to which the Second Respondent had already pleaded guilty. The consequence was of course that re-laying of the original section 188(1) charge would have been met by a plea of autrefois convict.

Was dismissal for abuse of process justified

[44] It is convenient to address this issue in the order set out in paragraph 9 of the Applicant’s Statement of Claim, the full text of which is recorded in paragraph [22] above. That pleading identifies the precise points at which the Applicant submits the First Respondent fell into error.

[45] Paragraph 9A. I accept that Delellis (supra) is not comparable with this case. There the charge was laid after the accused had made a damning admission on the faith of a promise that he would not be prosecuted. Here, although the guilty plea to the wounding charge carried with it an implicit acknowledgement of unlawful possession of the pistol, the reduction from a section 188(1) charge to a section 188(2) charge was a benefit that far out-weighed the prejudice. Furthermore, although I regard the Crown’s suggestion that Mr Fox could reverse his plea as unrealistic (of course he was not going to do that and run the risk of another withdrawal and re-laying of a section 188(1) charge) - nonetheless the high probability is that before a jury the trial Judge would rule evidence of the earlier guilty plea inadmissible. On balance, Delellis, in my judgment, did not support the dismissal of the possession information and certainly not the reckless discharge of the firearm complaint. This is particularly so in view of the strictures laid down by Moevao (supra) in the Court of Appeal, endorsed as they are by the High Court of Australia in Roha (supra).

[46] Paragraph 9B. Here I accept the threshold established by Moevao, (supra) Roha (supra) and Humphrys (supra) is not met by the proposition that “every day routine accommodations” made, “after due consideration at appropriate level, must be relied upon”. Prejudice to a much greater degree than occurred here is required. Furthermore, the Solicitor-General’s supervisory powers are not to be eroded by a lowering of the threshold required for an abuse of process plea. It is appropriate to observe however, that the Solicitor-General supervision only applies to middle-band cases - i.e. those laid indictably.

[47] Paragraph 9C. Reliance on Moevao (supra) as the basis for contending that the process of the Court itself was involved in this case does not stand up either. First, as I have held above, leave to withdraw, pursuant to section 36, must be taken to occur with knowledge on the part of the Judge granting leave that the Act allows the charges to be re-laid. More fundamentally, however, it is not the function of the Court to question the decision of the Executive to bring a prosecution. Richmond P in Moevao at page 465 line 40, right at the commencement of his judgment said

“. . . it was not within the jurisdiction of the Magistrate to review the exercise of discretion on the part of whoever decided to prosecute the appellant.”

[48] Also, at page 472, Woodhouse J, endorsing the view of Richardson J said at line 49 and on to the following page, line 6

“The first ground raised on the appellant’s behalf in answer to claim that the Magistrate was in error in rejecting a submission that it was open to him to review the decision made within the Department to prosecute. It is really an argument that the Magistrate’s Court has jurisdiction during the hearing of a criminal charge to examine the exercise of discretion by the Executive to bring the prosecution whenever the defendant alleges unfairness or improper motivation as to reason. Like Richardson J I am satisfied that this kind of review could not be undertaken by a Magistrate when exercising the criminal jurisdiction provided by the Summary Proceedings Act 1957. During the hearing of the charge brought against Moevao the Magistrate was asked to deal with the matter as an issue of administrative law. That the Magistrate could not do, as he recognised quite correctly himself.”

[49] Richardson J at page 478, at line 30 said

“. . . in its criminal jurisdiction in relation to summary offences the Court’s concern is with the hearing of the charge contained in the information. It is not entitled in its criminal jurisdiction to assume a civil jurisdiction to review the exercise of the discretion to prosecute.”

[50] Paragraph 9D. Contrary to Mr Brewer’s submission I do not consider that the Judge’s assertion that Mr Fox could not be “returned to exactly” his former position, was in error. But as I pointed out in paragraph [42] above, the benefit of the reduction in the lead charge (section 188(1)) far outweighed the limited prejudice experienced. It did not amount to the kind of prejudice identified by the English Court of Appeal in Townsend, Dearsley and Bretscher (supra).

[51] Paragraph 9E. The Police did “back-track”. It is not disputed that the arrangement was that if the pleas of guilty were entered leave would be sought to withdraw the other charges, but again the Second Respondent gained more than he lost as a result. Nonetheless, I uphold the Crown’s submission that simply backtracking is not enough. To repeat Richmond P’s words in Moevao at 470

“. . . it cannot be too much emphasised that the inherent power to stay a prosecution stems from the need of the Court to prevent its own process being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing the process of the Court is itself being wrongly made use of.”

Since section 36 expressly allows such a “back-track” as occurred here on the recommendation of the Crown Prosecutor as the agent of the Solicitor-General, in my judgment it falls far short of justification for striking out on the basis of abuse of process.

[52] Paragraph 9F. This is the paragraph in which the Attorney-General alleged that generally the First Respondent was in error in holding that, as a matter of law, the factors described on page 7 of the First Respondent’s decision amounted to an abuse of the process of the Court.

[53] Mr Brewer’s synopsis of arguments in support of this pleading in paragraph 9F was as follows.

Looked at in the round, the applicant has benefited from a plea bargain in which a very serious charge was reduced to one which occupies a very different sentence band. A Crown Solicitor has, on behalf of the Solicitor-General, reviewed the plea bargain and advised the Police that it does not conform with the Solicitor-General’s guidelines. The Police have therefore re-laid charges that were withdrawn. This was done 13 days after the entry of the guilty pleas. The appellant could return himself to the position he was in before the plea bargain without suffering prejudice. It is unfortunate that this situation has arisen and the learned District Court Judge might well hold a view that the efficient disposal of District Court business requires such accommodations to be adhered to. But the prosecution has not acted oppressively in terms of Moevao and the processes of the Court are not being used in a way that would bring the exercise of justice into disrepute.

[54] Save for the proposition that Mr Fox could have returned himself to the position he was in before the plea, I find myself in general agreement with Mr Brewer’s argument.

[55] As earlier mentioned at paragraph 10 of the applicant’s Statement of Claim, there is a second ground which although advanced under the heading of “Unreasonableness” is really a refinement of several of the arguments advanced in paragraph 9.

[56] The pleading in paragraph 10C, however, is important. There it is alleged:

10C The first respondent failed to take into account the different roles and duties of the Police as investigators and bringers of charges and the Solicitor-General as law officer of the Crown responsible for the overall conduct of criminal prosecutions.

[57] That opens up important constitutional and policy considerations. In its report No. 66 “Criminal Prosecution” the Law Commission, at page 16 has a heading “The Constitutional Position of the Attorney-General and the Solicitor-General”. Immediately under that heading there appear paragraphs 32 to 37 inclusive which I set out hereunder together with footnotes.

“32. The position of the Attorney-General, like that of the Solicitor-General, is a prerogative appointment.

It is an established constitutional practice in New Zealand that the office of Solicitor-General is non-political . . . The Attorney-General in New Zealand is a Member of Parliament and a Minister who, almost invariably, is a member of Cabinet holding other policy portfolios in addition to Law Officer responsibilities

(J McGrath QC Principles for Sharing Law Officer Power - the Role of the New Zealand Solicitor-General ((1998)) 18 NZULR 197, 198).

33. The Attorney-General has four primary areas of responsibility, as the:

• Principal legal advisor to the Crown;

• Named plaintiff or defendant representing the Crown in all proceedings brought by or against the government;

• Principal law officer; and

• Link between the executive government and the judiciary.

The Attorney-General’s overriding responsibility in exercising all four functions is to act in the public interest. Acting in the public interest clearly means acting free of political influence.

34. The English Court of Appeal in Attorney-General v Blake and Anor outlined the role of the Attorney-General as the guardian of the public interest:

In connection with the criminal law, the Attorney-General historically has had, and still has, both statutory and inherent powers of great importance involving the enforcement of the criminal law, which involve him having to make decisions of a highly sensitive nature. He has the overall responsibility for the enforcement of the criminal law.

([1998] Ch 439, 460. The case went on appeal to the House of Lords: Attorney-General (respondent) v Blake (appellant and Anor (2001] 1 WLR 625)

Although in England the Attorney-General is not a member of Cabinet, Lord Woolf’s comments are equally applicable to the role of the New Zealand Attorney-General in relation to the criminal law.

35. It is the role of the Attorney-General (with the Solicitor-General) to supervise all criminal prosecutions, both public and private. Because of the importance of impartiality generally in the criminal law, and the profound effect prosecution decisions may have on individuals, it is essential that the Attorney-General supervises prosecutions free of political influence.

The strongest of the relevant conventions concerns the Attorney-General’s role in prosecuting criminal offences and prohibits the Attorney-General from acting on cabinet instructions. Prosecution decisions must be made by the Attorney-General in the public interest - without regard to the interests of the government. Thus, the prosecution of the criminal law is not discussed at cabinet, although the Attorney-General may consult with cabinet colleagues or other members of the government in determining the public interest. Unlike other ministerial decisions, the Attorney-General’s prosecution decisions are not subject to the doctrine of collective responsibility. (Huscroft “The Attorney-General, the Bill of Rights, and the Public Interest” in Huscroft and Rishworth (eds) Rights and Freedoms (Brookers, Wellington, 1995) 135.))

36. Section 9A of the Constitution Act 1986 provides that the Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney-General. It is an established constitutional convention that the Solicitor-General is a non-political appointment, because independence from government is essential to the proper exercise of the Solicitor-General’s duties.

37. By long-standing convention successive Attorneys-General have generally not personally undertaken prosecution decisions or Law Officer decisions in relation to criminal proceedings, but have left them to the Solicitor-General. The reason for the convention is to prevent the administration of the criminal law becoming a matter of political decision-making. (Letter from the Solicitor-General to the Attorney-General, 16 December 1996, 4. But see McGrath QC, above n 13, 207 for three examples of Attorneys-General making decisions themselves.) so the Solicitor-General, as head of the Crown Law office, is responsible for supervision of criminal prosecutions. this includes granting consent to the commencement of certain types of prosecution, entering stays of proceedings, granting immunities from prosecution (including in relation to extradition and criminal mutual assistance), and granting leave to prosecute under various statues. It also includes oversight of the work of Crown Solicitors.”

[58] Mr Brewer’s synopsis on these topics reads;

Statement of Claim, paragraph 10C - roles and duties

The decision of the learned District Court Judge effectively means that every time the Police reach an accommodation with a person charged with criminal offending then that accommodation is binding on the Crown. This fails to take into account the different roles and duties of the Police as investigators and bringers of charges and the Solicitor-General as law officer of the Crown responsible for the overall conduct of criminal prosecutions. It is for this reason that, following committal for trial on indictable charges, a Crown Solicitor can place into an indictment, without being subject to review, whatever charges he or she considers founded in the depositions without being constrained by the charges brought by the Police. It is accepted that this does not mean that the Police can come to accommodations with persons accused of offences in the knowledge that such accommodation can be disregarded by the Crown. As Delellis demonstrates, the Court will not allow oppressive conduct to be ratified by the Crown.

[59] Again, I find myself in agreement with those submissions.

[60] In all the circumstances, and particularly for the reasons set out in this section of my judgment, I am obliged to rule that the dismissal on the grounds of abuse of process was not justified.

Delay

[61] I drew the attention of both counsel to what the Court of Appeal had to say about delay in Auckland District Court v Attorney-General 1993 2 NZLR 129. In this case however the Second Respondent was advised in less than a fortnight of the intention to re-lay the informations that had been withdrawn. Thereafter there was no delay comparable with the seven months that occurred in the Court of Appeal case. Indeed, an argument based on delay was recognised by Mr Brosnahan not to be available in this case and he expressly disavowed any reliance upon it.

Relief

[62] The District Court is of course a creature of statute. The only inherent powers it possesses are those provided by the statute - Department of Social Welfare v Stewart [1990] 1 NZLR 697.

[63] It is now well established however that the District Court has the right to do what is necessary to enable it to exercise the duties conferred up it by statute - see Garrow and Turkington: Criminal Law: at S358.9. Specifically it has power to prevent the abuse of process: McMenamin v Attorney-General 1985 2 NZLR 274, 276 (CA). It follows that the Court is subject to review in this matter, pursuant to the definition of “statutory power” in section 3 of Judicature Amendment Act 1972. In particular the words in that definition “a. . . right conferred by or under any Act”.

[64] Having reached the conclusion that the First Respondent’s decision of 26.3.2001 was in error, I now propose to exercise the powers provided by section 4(2) of the Judicature Amendment Act 1972. The decision to dismiss the relaid information CRN 1021004314 dated 19 March 2001 charging an offence against the Arms Act 1983 section 53(3) (discharging the pistol with reckless disregard for the safety of others) is set aside and that matter must now proceed to trial.

[65] So far as the other information CRN 1021004315 charging an offence against section 45(1) of the Arms Act 1983 (unlawfully carrying a pistol) is concerned, I do not propose to grant relief. Relief pursuant to an application for judicial review is of course discretionary. In relation to the second charge I accept Mr Brosnahan’s submission that it was in effect “subsumed” in the wounding charge. I noted Mr Brewer’s admission that it “added little”. Given a penalty of five years imprisonment for the wounding charge, my judgment is that it is all but inevitable that this second charge would have attracted a prison term of less than 12 months and that both terms would have been ordered to be served concurrently. It follows that even though the basis for dismissal has not been made out, I am nonetheless not prepared to set aside the First Respondent’s decision in respect of the second charge.