Butcher v Attorney-General

[2018] NZHC 196

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-895

[2018] NZHC 196

BETWEEN

CARL DAVID GEORGE BUTCHER

Applicant

AND

ATTORNEY-GENERAL

First Respondent

AUCKLAND DISTRICT COURT

Second Respondent

Hearing:	23 November 2017
Appearances:	Applicant in person (via AVL) H G Max for First Respondent
Judgment:	20 February 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 20 February 2018 at 11.30 am pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Crown Law Office, Wellington Copy for:  Applicant

BUTCHER v ATTORNEY-GENERAL [2018] NZHC 196 [20 February 2018]

Introduction

[1]                 The first respondent, the Attorney-General, applies to strike out Mr Butcher’s application for judicial review on the grounds that it discloses no reasonably arguable cause of action and is an abuse of the process of the Court.1

[2]                 Mr Butcher opposes the application and the second respondent abides the decision of the Court.

Background

[3]                 Mr Butcher filed this application for judicial review in May 2017. The application was in respect of pre-trial matters that Mr Butcher contended had occurred in the District Court, where he was facing charges of assault.

[4]                 Mr Butcher went to trial on those charges before a jury in late August 2017. He was convicted on 16 charges of assault and remanded in custody pending sentence. Mr Butcher proposes to appeal his convictions, if indeed he has not yet commenced the process.

[5]                 The essence of Mr Butcher’s application for review is his contention that on  4 April 2017, the District Court decided “either not to hear or to dismiss a renewed application by Mr Butcher to dismiss the criminal proceedings pursuant to s 147 of the Criminal Procedure Act 2011”. This appears from a minute issued by Fitzgerald J (conducting the Judicial Review list).2 Fitzgerald J recorded that she understood from Mr Butcher that he was to make that application on 4 April 2017 (in person as he was not represented at the time), but that the matter was dealt with in his absence.

[6]                 It was after Mr Butcher’s trial that the Attorney-General filed his application to strike out.

1      High Court Rules 2016, r 15.1; and First Respondent’s Interlocutory Application on Notice for Strike Out dated 3 October 2017.

2      Minute of Fitzgerald J dated 28 July 2017.

Strike out principles

[7]                 The Court exercises its jurisdiction to strike out sparingly and only in a clear case.3 The Court must be satisfied that a claim cannot succeed before striking it out.4 It must be “so certainly and clearly bad” that it should be precluded from going forward.5 Pleaded facts are assumed to be true unless “self-evidently speculative or false”.6

Discussion

[8]The Attorney-General makes two submissions.

[9]                 The first is that the Court record does not bear out Mr Butcher’s allegation that on 4 April 2017, the presiding Judge (Judge Collins of the District Court at Auckland) did not deal with an application under s 147 that had been set down.

[10]              The second is that any issue as to the manner in which the District Court dealt with pre-trial matters should be determined in Mr Butcher’s appeal against conviction.

First submission

[11]              The transcript of the proceedings on 4 April 2017 commences at 9.13 am. There was no  appearance  for  the  Crown.  Ms Pitch,  then  assigned  counsel  for Mr Butcher, advised the Judge that she understood Mr Butcher was caught in traffic. Ms Pitch said that she wished to make an application for leave to withdraw, and she asked the Judge whether he would proceed in Mr Butcher’s absence or preferred to wait. The Judge said he wished to wait and he stood the matter down.

[12]              The transcript resumes on Mr Butcher’s arrival at 9.56 am. The Judge informed Mr Butcher the courtroom was required at 10 am for other matters. Ms Pitch

3      Couch v Attorney-General (on appeal from Hobson v Attorney-General) [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

4      Couch v Attorney-General, above n 3, at [33]; Attorney-General v Prince [1998] 1 NZLR 262 (CA).

5      Couch v Attorney-General, above n 3, at [33], citing W v Essex County Council [2001] 2 AC 592 (HL) at 601.

6      Siemer v Judicial Conduct Commissioner [2013] NZHC 1853 at [13]; and see Couch v Attorney- General, above n 3, at [33]; Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.

renewed her application to withdraw. Mr Butcher opposed it whilst repeating allegations of wrongdoing against her. This culminated in the Judge granting Ms Pitch leave to withdraw.

[13]              The Judge then spoke to Mr Butcher and Ms Pitch about appointment of new counsel. Ms Pitch advised that the Legal Services Agency (“LSA”) appeared unwilling to assign fresh counsel as Mr Butcher had several counsel prior to Ms Pitch. The Judge said that the LSA would have to explain its reasons for declining to assign counsel, but also that he would appoint amicus curiae to assist Mr Butcher to obtain fresh representation.

[14]The Judge then said to Mr Butcher that:

(a)the amicus was to assist with reassignment of defence counsel, not to assist with any application pursuant to s 147 that Mr Butcher would wish to make. Mr Butcher said he understood that; and

(b)Mr Butcher’s bail would continue until callover at 9 am, 2 May 2017. The  Court  was  to  be  advised  as  to  where  matters  stood  with  Mr Butcher’s representation and also at that time the file would be allocated to a trial Judge who would deal with all matters from then on.

[15]              In response to a question from Mr Butcher as to whether the allocated trial Judge would be able to hear an application under s 147, Judge Collins said that “time would be allocated to deal with all pre-trials”. Mr Butcher thanked the Judge and that was the end of events for that day.

[16]              The application that Mr Butcher says he wished to pursue appears to have been made by email of 29 March 2017, from him to the District Court.7 Mr Butcher asked the Court “to consider a dismissal of the charges as per the advice of the Auckland High Court Judge due to the extraordinary time taken by the [District] Court delays to date”.

7      See email dated 29 March 2017 annexed to Statement of Claim dated 3 May 2017.

[17]              By way of further explanation, the reference to the “Auckland High Court Judge” is a reference to Muir J who, on 30 May 2016, dismissed an application that Mr Butcher had made for habeas corpus. In response to statements by Mr Butcher, the Judge referred to the Court’s jurisdiction to stay or dismiss proceedings that were not prosecuted in a timely manner.8

[18]              Coming back to 4 April 2017, Mr Butcher is correct that Judge Collins did not hear his application. However, there is nothing on the file to indicate that the application, received only a few days before, had been set down for hearing; there was no appearance for the Crown, and no evidence before me that it had even been served on the Crown; time was short (through no fault of the Judge); and the Judge was concerned as to Mr Butcher’s legal representation.

[19]              Given that, I am not persuaded that the Judge made any decision “not to hear or to dismiss” Mr Butcher’s application. On the contrary, the Judge took the entirely appropriate step in the circumstances of adjourning that application and the proceeding generally to 2 May 2017. Indeed, Mr Butcher appears to have accepted this at the time.

[20]              Given what appears from the transcript, that is sufficient to warrant a striking out of the proceeding.

Second submission

[21]              This determination makes it unnecessary for me to discuss the Attorney- General’s submission that, even if events had proceeded as Mr Butcher said, his only remedy following conviction is appeal, as to which see the authorities footnoted below.9

8      See Minute of Muir J dated 30 May 2016 at [15] also annexed to Statement of Claim dated 3 May 2017.

9      For instance C v Wellington District Court [1996] 2 NZLR 395 (CA); Banks v Auckland District Court [2013] NZHC 3221, [2014] NZAR 591; DGN v The Auckland, Manukau, Papakura and Waitakere District Courts [2015] NZHC 3338; Russell v District Court (Manukau) [2004] DCR 289 (HC); Nuku v The District Court at Auckland [2017] NZCA 471; Attorney-General v District Court at Auckland [2008] NZCA 425, [2009] 1 NZLR 600.

Conclusion

[22]              I grant the application and strike out the proceeding. I make no order as to costs.

Peters J