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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butcher v Attorney-General

Details

AGLC: Butcher v Attorney-General [2018] NZHC 196
Case: [2018] NZHC 196
Decision Date: 20 February 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Justice Peters delivered a judgment on 20 February 2018 in the case of Butcher v Attorney-General. The applicant, Carl David George Butcher, had filed an application for judicial review against the Attorney-General and the Auckland District Court, seeking to challenge pre-trial matters in his criminal proceedings. The Attorney-General applied to strike out the application on the grounds that it did not disclose a reasonably arguable cause of action and was an abuse of the court process. The Auckland District Court did not oppose the application.

The legal issues before the court were whether the application for judicial review disclosed a reasonably arguable cause of action and whether the application was an abuse of the court process. The court examined the transcript of the proceedings and found that the applicant's allegations were not supported by the facts. The court held that the judge had not made any decision to dismiss the applicant's application, but rather, the application had been adjourned due to the applicant's absence and concerns about his legal representation.

The court further held that any issue regarding the manner in which the District Court dealt with pre-trial matters should be determined in the applicant's appeal against conviction. The court granted the application to strike out the proceeding and made no order as to costs. The applicant's application for judicial review was dismissed.

Orders