Blake v Thames District Court

[2022] NZHC 1235

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2021-419-000068 [2022] NZHC 1235

UNDER

the Judicial Review Procedure Act 2016

BETWEEN

ROGER WILLIAM BLAKE (AKA LIVING MAN: ROGER-WILLIAM: HOUSE OF

BLAKE)

Applicant

AND

THAMES DISTRICT COURT

First Respondent

COMMISSIONER OF POLICE & ORS

Second Respondents

MEDSAFE AND ORS

Third Respondents

Hearing:

23 May 2022

Appearances:

Applicant in person

JDJ Williams for Respondents

Judgment:

1 June 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on Wednesday, 1 June 2022 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton. Copy to: Applicant.

BLAKE v THAMES DISTRICT COURT [2022] NZHC 1235 [1 June 2022]

The case

[1]    Roger William Blake and NZ Water Purifier Ltd1 face charges in the District Court under the Medicines Act 1981. The charges rely, at least in part, on evidence obtained by search warrants. Roger-William has filed a claim seeking judicial review of the issue of the warrants. The claim is yet to be heard. So, Roger-William seeks a stay of the charges until the claim is determined.

[2]    Who is Roger-William? Mr Blake calls himself “living man, roger-william, house of blake”. Indeed, he denies being Mr Blake because Mr Blake is a “corporate entity”, not “a living man”.2 Roger-William describes himself as Mr Blake’s beneficiary, creditor, attorney and “Principal Administrator”. To avoid consternation, I refer to Mr Blake as Roger-William.

[3]    The prosecution—Police and Medsafe—opposes Roger-William’s stay application and seeks an order striking out some defendants in the judicial review claim.3 Roger-William opposes this application.

[4]    This judgment determines the strike out and stay applications which, as with the balance of the litigation, Roger-William conducts without counsel. It also addresses outstanding discovery disputes.

The background in brief

[5]    Roger-William is or was a director of NZ Water Purifier, which conducted business as Ngatea Water Gardens.

[6]    From  6  July  2020,  Police   applied  for  search  warrants  in  relation  to     7 McMillan Street, Ngatea; and Ngatea Water Gardens, Bratlie Place, Ngatea. I assume these addresses are Roger-William’s home and NZ Water Purifier’s premises.4

1      NZ Water Purifier.

2      Somewhat inconsistently, Roger-William filed an “Affidavit of Life” in which he says, “the entity known as Roger William Blake is … in fact the living Roger-William of the house of blake”.

3      I use the compendious expression “the prosecution” for ease of reference despite this being a civil proceeding.

4      The statement of claim does not explain their connection.

[7]    The applications concerned alleged Medicines Act offending: selling, distributing and advertising new medicines (contrary to s 20); and possession of prescription medicines absent reasonable excuse (contrary to s 43).

[8]    The Thames District Court issued search  warrants.  These  were  executed  15 July 2020.

[9]    Medicines Act charges were laid against Roger-William and NZ Water Purifier 20 December 2020.5

[10]   Roger-William filed a claim for judicial review in relation to the search warrants 1 April 2021. He filed an amended claim 22 June 2021. The latter signals extensive grounds of challenge to the warrants’ issue (but not manner of their execution).6

[11]Roger-William filed the application to stay the charges 15 February 2022.

Law

[12]Section 15 of the Judicial Review Procedure Act 2016 reads:

Interim orders

(1)  At any time before the final determination of an application, the court may, on the application of a party, make an interim order of the kind specified in subsection (2) if, in its opinion, it is necessary to do so to preserve the position of the applicant.

(2)  The interim orders referred to in subsection (1) are interim orders—

(a)prohibiting a respondent from taking any further action that is, or would be, consequential on the exercise of the statutory power:

(b)prohibiting or staying any proceedings, civil or criminal, in connection with any matter to which the application relates:

(c)declaring that any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by the passing of

5      Roger-William denies being charged on the basis he is not Mr Blake. If Roger-William is not  Mr Blake, it is not obvious what standing Roger-William has to seek a stay of the charges against Mr Blake.

6      The prosecution sought particulars of the claim, which Roger-William provided 27 August 2021.

time before the final determination of the application, continues and, where necessary, that it be deemed to have continued in force.

(3)  However, if the Crown is a respondent,—

(a)the court may not make an order against the Crown under subsection (2)(a) or (b); but

(b)the court may, instead, make an interim order—

(i)declaring that the Crown ought not to take any further action that is, or would be, consequential on the exercise of the statutory power:

(ii)declaring that the Crown ought not to institute or continue any proceedings, civil or criminal, in connection with any matter to which the application relates.

(4)  An order under subsection (2) or (3) may—

(a)be made subject to such terms and conditions as the court thinks fit; and

(b)be expressed to continue in force until the application is finally determined or until such other date, or the happening of such other event, as the court may specify.

[13]   As will be apparent, s 15 enables the Court to stay criminal proceedings or declare the Crown ought not continue criminal proceedings. However, the section needs to be understood in the context of the law’s approach to challenges to search warrants by way of judicial review.  The leading case  is  Gill v Attorney-General.7  Dr Gill challenged the Ministry of Health’s execution of a search warrant at his practice. He alleged the Ministry contravened his right to be free from unlawful search and seizure as protected by s 21 of the New Zealand Bill of Rights Act 1990.

[14]   The High Court dismissed Dr Gill’s claim for judicial review. Hugh Williams J concluded, “judicial review is an ‘extremely unsatisfactory tool’ to make findings on the manner of applying for and executing search warrants”.8

[15]   The Court of Appeal affirmed. It too held “judicial review action was not the appropriate means of proceeding”.9 This because:

7      Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.

8      Gill v Attorney-General HC Auckland CIV-2008-404-8247, 23 September 2009 at [199].

9      Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].

(a)Judicial review was premature. The criminal investigation was still in its early stages.

(b)If charges were laid against Dr Gill, “various opportunities would have arisen to challenge the validity of the warrant and/or its execution either before any trial or in the course of it”.10

(c)Even if a search warrant were invalid (or improperly executed), resulting evidence may still be admissible under s  30  of  the Evidence Act 2006. The Court noted “all of the examples” in which judicial review had been successfully deployed against a search warrant “occurred before the advent of s 30 of the Evidence Act”.11

(d)“Judicial review will rarely be appropriate when there is a readily- available alternative remedy”.12

(e)Courts have held “they will only intervene in matters which involve the exercise of … investigative power in exceptional cases”.13

[16]   The Court of Appeal concluded “use of the rather blunt  instrument  of judicial review should rarely be permitted to be used to challenge the issue, validity and execution of a search warrant, particularly in the course of an investigation into alleged criminal offending”.14

[17]   In short, something exceptional is required before a search warrant may be challenged by way of judicial review.15 Logically, this must also be true when a stay is sought pending such challenge.16

10     Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].

11 At [24].

12 At [19].

13 At [19].

14 At [29].

15     Dr Gill was required to pay costs uplifted by 100 percent.

16     It would be so anyway given the significant interference with criminal process; charges are brought in the public interest.

Argument and analysis

[18]   Roger-William contends his stay application meets this threshold. I identify, then address, each of the points he raises.

[19]   First, Roger-William contends a stay is necessary to address the “trespass” committed by the prosecution in executing the warrants, and its subsequent “fraud” in bringing the charges. This argument presupposes a stay is necessary to preserve his position in the District Court. The assumption is misplaced for the reasons identified in Gill: Roger-William may challenge the validity of the search warrants in the District Court. He may do so either in advance of trial (as a pretrial application brought by the prosecution, directed at these issues), or, at the trial of the charges.17

[20]   Second, Roger-William submits a stay is necessary because judicial review is the appropriate vehicle to challenge the warrants. He invites use of this analogy:

This matter could be compared to a house being built, and discovery made that the foundations are compromised due to faulty workmanship and materials; an inspector is employed to investigate the foundation [ie, the Judicial Review]; however the contractor [ie, the prosecutor] is crying out to put up the walls and roof regardless; it is clear that putting more time and money into installing the walls and roof is unwise until the foundations have been verified as satisfactory; otherwise any further building work done would need to be pulled back down again, should the foundation be confirmed as being faulty; and

It is therefore not logical to unnecessarily waste further time and resources in the District Court until the outcome of the High Court Judicial Review is determined …

This submission is merely a restatement of the first. And, as Gill makes plain, the submission is back-to-front; the District Court is the conventional forum to address the validity of a search warrant.

[21]   Third, Roger-William seeks a stay on “compassionate grounds”. His wife is unwell. She, he says, has had heart surgery. I have no reason to doubt the correctness of this submission. However, it says nothing about whether the High Court should review the warrants, and nothing about the related contention of a stay.

17     Criminal Procedure Act 2011, ss 78–80.

[22]   Fourth, Roger-William says he has expended much time and energy preparing his judicial review claim. Aside from the point this was presumably true of Dr Gill, this contention also says nothing about whether there should be a stay.

[23]   Fifth, Roger-William contends he should have a stay because the prosecution ought be taken as having accepted the warrants were improperly issued. Roger-William filed and served an affidavit described as an “Affidavit of Truth”. He said the prosecution had not responded to this affidavit, and, therefore, it had acknowledged its “guilt” in relation to the search warrants.18 This submission:

(a)Overlooks the absence of a timetable direction requiring a response to the affidavit.

(b)Presupposes an unanswered affidavit in this context necessarily constitutes an acceptance of the other side’s evidence. No such principle exists.

[24]   Sixth, Roger-William argues that at the District Court case review hearing on 22 February 2022, Judge Marshall accepted the prosecution should be stayed pending determination of the judicial review claim. In response, Mr Williams for the prosecution contends Judge Marshall said no more than that hearing should await determination of the stay application. It is not necessary to analyse the Judge’s remarks because determination of a stay application is the exclusive responsibility of this Court; s 4 of the Judicial Review Procedure Act 2016 defines “court” as meaning “the High Court of New Zealand”. So, even if the Judge said a stay should be ordered—which is unlikely given what follows—that says nothing about what this Court should do.

[25]   Seventh, Roger-William contends delay supports his case for a stay, particularly as he has “been given the run around by the courts”, and the delay is “fishy”. Roger-William says he first applied for a stay of the charges 27 August 2021, by email. He says the High Court Registry told him, by reply email, he needed to

18     Roger-William advances the same point in relation to the prosecution’s statement of defence. This overlooks the denials in that pleading.

apply to the District Court for a stay, but it would send the application to the (Thames) District Court for that Court to determine. Roger-William says Judge Marshall raised the stay application at the case review hearing; and told him the District Court did not have the power to stay the charges under the Judicial Review Procedure Act. Roger-William says he then filed the stay application in question. But by then, six months had passed.

[26]   The delay is unfortunate, particularly as it might have been caused, or at least contributed to, by the Registry. However, there is nothing “fishy” about it; this is plain from the narrative provided by Roger-William. More importantly, the delay does not support a stay. That it has taken more time to reach this point than it should says nothing about whether a stay should be granted.

[27]   Roger-William does not argue a stay is appropriate because his judicial review claim is especially strong, or that the warrants are self-evidently invalid. These contentions may be thought more orthodox than the arguments actually raised in support of a stay. I have, however, considered these contentions (as best I can). Determining the strength of the claim is difficult because (a) Roger-William has filed an extraordinary amount of paper; (b) multiple grounds of challenge exist; and (c) the evidence remains incomplete. Nothing stands out to require this Court’s intervention by way of stay. The various grounds of challenge are the types of challenge routinely determined by District Courts up and down the country when assessing the admissibility of evidence obtained by warrant. And, the warrants are not self-evidently invalid.

[28]   I have also considered whether anything else about the case supports a stay in light of Gill. Nothing emerges.

[29]   To recapitulate, the law sets its face against judicial review of a search warrant absent exceptional circumstance. So too, necessarily, a stay in the interim. Roger-William’s arguments for a stay fall well short of the threshold. Nothing else appears to support one.

Strike out

[30]   Roger-William’s judicial review claim is primarily against Police, Medsafe, and the Thames District Court (as warrant issuer). I say “primarily” because the claim also names nine other defendants:  Matthew  Rawson;  Ken  McGillivray; Christopher Smith; Mark Soffe; Kristal Brooker; Simon Everson; Nicola Squire; Simon Williamson and Chris James.

[31]   The prosecution applies to strike these defendants from the claim on the grounds they personally exercised no statutory power and should not be before the Court.19 One example should suffice. Matthew Rawson is a Police officer. He, as such an officer, applied to the Thames District Court for at least one of the challenged search warrants.20 The claim, however, sues Mr Rawson in his personal capacity. Moreover, Constable Rawson’s actions are, in law, those of the Police Commissioner, and  the  claim  already  extends  to  Police  by  naming  the  Commissioner.   So,  Mr Williams contends, Matthew Rawson and the other eight defendants should be removed from the claim. No action lies against them personally, and they could serve no useful purpose as defendants.

[32]   Roger-William argues otherwise. He says Police and Medsafe are not the primary defendants because the search warrants were obtained by “a living man” and executed “by living men and women”. He also contends “we are too far down the track” to remove these defendants from the claim.

[33]   The latter is not dispositive because the judicial review claim is still to be heard. The former is correct as a matter of fact but inconsequential at law. Striking these defendants from the claim will not prejudice the claim in any way; the relevant legal actors—the Thames District Court, Police and Medsafe—remain as defendants. Moreover, strike out is appropriate for the reasons identified by Mr Williams.

19     Under r 15.1(1)(a) of the High Court Rules 2016 and s 14(2)(b)(ii) of the Judicial Review Procedure Act 2016.

20     Holding the rank of Detective Sergeant.

Outstanding discovery disputes

[34]   Concerns   about   discovery   were   voiced   at    telephone    conferences. On 24 February 2022, and with everyone’s agreement, Gault J directed these be resolved on the papers. These I have read.

[35]Five things or categories are in issue:

(a)An unexecuted search warrant issued 6 July 2020.

(b)Correspondence between Medsafe and Police leading to the warrant applications.

(c)Potentially privileged documents.

(d)Documents regarding Genelle Pemberton

(e)True and correct certified copies.

The issued but unexecuted warrant

[36]   Mr Williams contends the prosecution should not have to discover this as it is irrelevant. He contends “the focus” of the judicial review claim concerns the later executed warrants.

[37]   The claim asserts all search warrants were wrongly issued. That this warrant was not executed does not diminish its relevance. It must, therefore, be given to Roger-William. So too if it has not already, the application for the warrant.

(b) Correspondence between Medsafe and Police leading to the warrant applications.

[38]   Mr Williams acknowledges this material is potentially relevant  to  the judicial review claim. However, he contends the prosecution need not discover it because it has successfully resisted disclosure of the same material in the District Court in reliance on s 16(1)(c)(ii)(B) of the Criminal Disclosure Act 2008.

[39]   The section is not an obvious fit. It concerns “a communication dealing with matters relating to the conduct of the prosecution”. The correspondence’s genesis is the investigation; it was created before the prosecution commenced. But, other provisions of the Criminal Disclosure Act may be applicable, as may s 69 of the Evidence Act. The submissions do not address these provisions.

[40]I direct:

(a)Mr Williams to provide further submissions on this category on or before 15 June 2022. The submission must not exceed 10 pages.

(b)Roger-William to respond on or before 29 June 2022. The submission must not exceed 10 pages.

Potentially privileged documents

[41]   Section 146 of the Search and Surveillance Act 2012 provides that if a person executing a search warrant is unable to search a thing because it may be privileged, the searcher may secure the thing, copy it, and deliver the thing or copy to a court to enable a Judge to determine whether the thing is privileged. I gather this procedure was used here.

[42]   Roger-William appears to believe this means the prosecution is withholding documents from him that may support his judicial review claim. This overlooks that the documents are likely Roger-William’s or NZ Water Purifier’s, and that anything in this category was seized in the search; not created in support of the warrant applications. Consequently, this category is irrelevant to whether the warrants were validly issued. Documents within it need not be given to Roger-William.

Documents regarding Genelle Pemberton

[43]   The prosecution contacted Ms Pemberton after the warrants were executed on the assumption she may have evidence to give in relation to the charges. Roger-William makes wide-ranging arguments the prosecution should discover

related documents, including that he is “a child of God … entitled to justice”. None address bedrock considerations of relevance.

[44]   Documents ala Ms Pemberton lack relevance to whether the warrants were validly issued. These need not be given to Roger-William either.

True and correct certified copies

[45]   This category arises because Roger-William contends the prosecution has failed in its discovery obligations by not providing true and correct certified copies of every document. There is no obligation on the prosecution to do so.

Some final observations

[46]   Judicial review of a search warrant is an exceptional step. I invite the parties to reflect on its desirability in this case. Everything Roger-William wishes to argue about the search warrants may be argued in the District Court as part of the routine criminal processes of that Court. If the District Court concludes the warrants are invalid it may, subject to s 30 of the Evidence Act, exclude all resulting evidence. So, Roger-William does not need to bring a judicial review claim to protect his rights in relation to the warrants.

[47]   Another point should be made clear. Even if Roger-Williams succeeds in the High Court on judicial review, that would not preclude the District Court from admitting all of the evidence under s 30 of the Evidence Act. In short, the judicial review claim adds nothing obvious to this case beyond time, expense and delay.

[48]   It may be open to the prosecution to apply to dismiss the judicial review claim on the basis it discloses no reasonably arguable prospect of success.

Result

[49]   The application for a stay is dismissed. (This means the charges may be progressed in the District Court).

[50]In relation to discovery:

(a)Further submissions are required concerning the correspondence between Medsafe and Police in accordance with the timetable at [40].

(b)The prosecution must discover the issued, unexecuted search warrant (and related application if has not done so already).

(c)The prosecution need not discover the remaining things or categories as sought by Roger-William.

[51]Costs are reserved.

……………………………..

Downs J