Butcher v Auckland District Court
[2017] NZHC 2338
•14 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2017-404-786 [2017] NZHC 2338
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER OF
Judicial Review
BETWEEN
CARD DAVID GEORGE BUTCHER Applicant
AND
AUCKLAND DISTRICT COURT First Respondent
ROBERT ALAN CLARK Second Respondent
Hearing: 13 & 14 September 2017 Appearances:
Mr Butcher in person
M B Stewart and P Hall for Second RespondentJudgment:
14 September 2017
Reasons:
26 September 2017
JUDGMENT OF DUFFY J
This reasons for judgment was delivered by me on 26 September 2017 at 2.15 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel: Crown Law, Wellington Simpson Western, Auckland Stephen Bonnar QC, Auckland
BUTCHER v AUCKLAND DISTRICT COURT & CLARK [2017] NZHC 2338 [14 September 2017]
[1] On 14 September 2017 I dismissed the judicial review proceeding which the applicant, Mr Butcher, brought against the Auckland District Court and his former solicitor, Robert Clark. My reasons for doing so now follow.
Facts
[2] Mr Butcher attempted to bring a private prosecution in the District Court against Mr Clark for theft of $29,500. To this end Mr Butcher filed a charge notice and accompanying material in the District Court. A registry employee referred the material to Judge D J Sharp.1
[3] Judge Sharp determined that more information to support the prosecution was required. Accordingly he directed Mr Butcher to file this information.
[4] Mr Butcher filed further information. However, it did not satisfy Judge Sharp, who on 28 March 2017 directed that Mr Butcher’s charging document not be accepted for filing on the ground the evidence provided was insufficient to justify a trial.2 This is what prompted Mr Butcher to commence the judicial review proceedings.
[5] At the hearing Mr Butcher represented himself. Mr Clark was represented and he took an active role in opposing the judicial review. The District Court adopted a neutral position and abided the decision of this Court. However, very belatedly, the District Court did file a record of proceeding. This was vital to the disposition of the judicial review as its focus was essentially on whether there was a proper basis for Judge Sharp to give directions preventing Mr Butcher’s private prosecution from going ahead. Accordingly, it was important for this Court to know
the material on which Judge Sharp based his directions.
1 See s 26(1)(b) of the Criminal Procedure Act 2011.
2 See s 26(3)(a) of the Criminal Procedure Act.
Process of filing a private prosecution
[6] Section 26 of the Criminal Procedure Act 2011 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.
(4) If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a) notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b) retain a copy of the proposed charging document.
(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
[7] In the present case, when the charging documents were first received someone in the District Court’s registry referred those documents to Judge Sharp in accordance with s 26(1)(b). This resulted in the direction requiring Mr Butcher to provide more evidence to support the commencement of the prosecution. When this material failed to satisfy Judge Sharp he gave the direction pursuant to s 26(3)(a) that the charging documents not be accepted for filing. Accordingly, in terms of the process required by s 26 of the Act, matters proceeded as they should have done.
Judge Sharp’s decision
[8] The next question is whether the conclusion the Judge reached on the insufficiency of the material before him to support a prosecution was a reasonable decision that was available to him.
[9] First it is necessary to consider the elements of the offence that Mr Butcher sought to prosecute. Section 220 of the Crimes Act 1961 sets out the offence of theft by a person in a special relationship:
220 Theft by person in special relationship
(1) This section applies to any person who has received or is in possession of, or has control over, any property on terms or in circumstances that the person knows require the person—
(a) to account to any other person for the property, or for any proceeds arising from the property; or
(b) to deal with the property, or any proceeds arising from the property, in accordance with the requirements of any other person.
(2) Every one to whom subsection (1) applies commits theft who intentionally fails to account to the other person as so required or intentionally deals with the property, or any proceeds of the property, otherwise than in accordance with those requirements.
(3) This section applies whether or not the person was required to deliver over the identical property received or in the person’s possession or control.
(4) For the purposes of subsection (1), it is a question of law whether the circumstances required any person to account or to act in accordance with any requirements.
[10] The record of proceedings reveals that Mr Butcher filed information which showed that he believed Mr Clark had committed an offence under s 220 of the Crimes Act. However, Judge was not satisfied with the material.
[11] The record of proceedings contains nothing that suggests Mr Butcher had sufficient evidence to justify putting Mr Clark on trial. The record of proceedings reveals allegations to the effect that:
(a) Mr Clark took $29,500 from a Roper and Jones Real Estate (Roper & Jones) trust account, then lied about it by saying Mr Butcher’s money was secure when it was not;
(b)that Mr Butcher was one of three persons who were purchasing two properties in Dargaville and to advance the purchase Mr Butcher provided a deposit of $85,000;
(c) that Mr Clark cancelled the purchase of one of the properties, following which $29,500 in deposit monies were paid into the trust account of Simpson Western, the legal firm of which Mr Clark was a partner;
(d) that this money has never been paid to Mr Butcher; and
(e) whenever Mr Butcher has taken steps to recover the $29,500 either by complaint to the Serious Fraud Office (SFO), the New Zealand Law Society (NZLS) or the Disputes Tribunal, Mr Clark has provided explanations to those entities which have led to no further action being taken against him.
[12] Judge Sharp’s reasons for directing the private prosecution not be accepted for filing are set out in a minute dated 28 March 2017. The Judge noted the formal written statements provided by Mr Butcher and his intention to call other proposed witnesses, although no formal statements for those witnesses were filed. The Judge referred to Mr Butcher’s earlier complaints to the NZLS and to the Disputes
Tribunal.3 The Judge noted the trust account transaction record for Simpson Western
showed a credit of “$29,000” [sic] received from Roper & Jones as refund of a deposit, with Mr Clark being noted as the person engaged in the transaction. The Judge also noted that in 2003 Simpson Western had written to Work & Income New Zealand advising they acted for Mr Butcher along with Robert and Alison Butcher (Mr Butcher’s in-laws) and Lydia Butcher (Mr Butcher’s then partner). The letter
stated that Mr Butcher had made a contribution of $85,000 which was to be used as a
3 Mr Butcher incorrectly referred to this Tribunal as the Small Claims Court.
deposit under a contract to purchase a property at Dargaville. The rear page only of an agreement for sale and purchase of real estate was also provided. This document gave some confirmation that Mr Butcher together with Mrs Butcher and Mr and Mrs Burgess had contracted to purchase land. The Judge correctly surmised that there were problems with the transaction.
[13] The Judge found that the material which was before him was incomplete in the following respects:
(a) I cannot tell upon what basis Mr Clark was provided with the funds shown in the trust account excerpt.
(b) The Law Society is said to have been involved. Mr Butcher claims that his lawyer provided Mr Clark with the funds on an unauthorised basis. Mr Butcher’s claim would appear to be a significant breach of legal duties and client care obligations. Why the Law Society have not assisted Mr Butcher is not clear.
(c) I am unsure if Mr Clark acknowledges that he retained the funds. Or if so on what basis he claims to have retained the money?
(d) Mr Butcher refers to exhibits. These were not provided to me and I have no idea what significance, if any, could be taken from these exhibits.
[14] Judge Sharp went on to state that he had set out the above matters in detail so that Mr Butcher was aware the material provided so far had been read and considered. The Judge then found “[the] difficulty is that the material is far from being enough to allow a private prosecution to proceed.”
[15] Then Judge Sharp referred to Mr Butcher’s request for the assistance of amicus curiae. The Judge stated he could not grant the request as private prosecutors were expected to bring and manage their own cases. He observed that if a realistic case could be mounted Mr Butcher should, as a first step, take his concerns to the police. Finally, the Judge concluded that the material presently before him was “insufficient for a charging document to be issued.” Accordingly, the Judge directed the charging document not be accepted for filing on the basis that the evidence provided was insufficient to justify a trial.
[16] Like Judge Sharp I also consider the material Mr Butcher provided to the District Court was insufficient to justify a trial, which is the test required by s 26(3)(a) of the Criminal Procedure Act. Ordinarily, this conclusion would have been enough to dispose of the judicial review.
[17] However, the allegations Mr Butcher made against Mr Clark had the potential to damage Mr Clark’s reputation. His opposition to the judicial review included evidence that went to establish how Simpson Western came to have the sum of
$29,500 in its trust account and to explain what had then happened to those funds. His evidence also addressed how Simpson Western came to be acting for Mr Butcher, despite having never been contacted by Mr Butcher in person.
[18] Because Mr Butcher was self-represented I considered it worthwhile to go through the evidence Mr Clark had provided, as it explained how Mr Clark and Simpson Western came to be involved and what had happened to the $29,500. In my view the evidence made it plain there was no basis for Mr Butcher to bring a private prosecution for theft against Mr Clark.
[19] The evidence from Mr Clark included:
(a) A letter from Peter King, solicitor, dated 30 September 2003 to Simpson Western for the attention of Mr Clark. Mr Butcher acknowledges that Mr King was his solicitor. The letter from Mr King confirmed that he instructed Mr Clark to act for Mr King’s clients RB and AJ Burgess and CDG and LK Butcher on the purchase of two properties. Accordingly, this letter provides a complete explanation for how Mr Clark came to be acting for Mr Butcher despite Mr Butcher giving no direct instructions to Mr Clark.
(b)On 3 October 2003 Mr Clark wrote to Mr and Mrs Burgess and Mr and Mrs Butcher care of 86A Sunset Road, Glenfield, North Shore City, which was the home address of Mr and Mrs Burgess. The letter records advice he had received from Mrs Burgess to the effect that Simpson Western was authorised to accept instructions from
Mrs Burgess who would act as the representative of the other three purchasers. The letter refers to two blocks of land at Trounson Park Road, Dargaville. One block was 57 hectares (Vendor MJ and TT Freearson, Certificate of title NA 919/239). The letter records a deposit of $29,500 for this block of land. The second block of land was 79 hectares (Vendor SC & CA Pulman), with a deposit of
$75,000. The letter was five pages long and extensively covered the terms of the purchase. Mr Butcher says he never saw this letter. That may be so; however, its contents inform me that Mr Clark had every reason to believe at the time that he was acting for both the Burgess and the Butcher families.
(c) On 3 November 2003 Mr Paterson, a solicitor at Simpson Western working under Mr Clark, wrote to Roper & Jones real estate agents to advise the purchase of the block of land from the Frearsons was not proceeding as the finance condition could not be satisfied. The letter asked Roper & Jones to return the deposit paid under the sale and purchase agreement. This explains why the deposit of $29,500 was paid from Roper & Jones to Simpson Western and held in that firm’s trust account. Mr Butcher says he did not know about this. That may be so. However, the actions taken by Simpson Western were consistent with them acting as the solicitors for the Burgess and Butcher families.
(d) The trust account records of Simpson Western show that on 10
November 2003 the firm received the deposit of $29,500 from Roper
& Jones and on 12 November 2003, $29,500 was paid by cheque to RB and AJ Burgess. This would be consistent with Mrs Burgess acting as representative of the four purchasers.
[20] Accordingly, the $29,500 which made up part of the deposit Mr Butcher had provided was paid to Mrs Burgess. Mr Butcher informs me that Mrs Burgess never accounted to him for those funds. That may be so. However, the part Mr Clark played in the above is not consistent with the elements of theft by someone in a
this offence requires was present. However, when it comes to satisfying s 220(2), there must have been an intentional failure to account to Mr Butcher as required, or an intentional failure to deal with Mr Butcher’s funds otherwise than as required. There is nothing to suggest an intentional failure to act in either of those ways on the part of Mr Clark. He never appropriated the $29,500 for himself. A cheque was issued to Mr and Mrs Burgess, which was consistent with the letter of 3 October
2003 where Mrs Burgess was recorded as the representative of the four purchasers.
[21] Mr Clark was aware that the purchasers were family members and that Mr Butcher was the son-in-law of Mr and Mrs Burgess. It is understandable that Mr Clark assumed the other purchasers, including Mr Butcher, were content that matters proceed as they did. Further, I note that the dealings happened before the Lawyers and Conveyancers Act 2006, when letters of engagement were not required. Whilst in hindsight it would have been best if Mr Clark had made direct contact with all four purchasers to confirm they wanted to instruct Mr Clark and that they were happy for Mrs Burgess to be the point of reference for them all, Mr Clark’s failure to take those steps cannot be translated into conduct that meets the requirements of s 220(2).
[22] I am satisfied that this is a situation where Mr Butcher could never prove the offence of theft under s 220 against Mr Clark. The suspicions Mr Butcher has harboured against Mr Clark seem to me to have arisen from Mr Butcher not having all the relevant information before him and lacking legal advice about what it actually showed. I explained matters to Mr Butcher and he appeared to me to understand why no prosecution against Mr Clark could be brought.
[23] There are two other matters of concern for Mr Butcher that are worth addressing. First, on 26 November 2003 a file note made by Mr Paterson of Simpson Western records that Mr Butcher rang him and asked for confirmation to Work and Income that Mr Butcher had paid $85,000 towards the purchase of a farm property. Mr Paterson wrote the letter the same day. Mr Butcher sees something suspicious in this because by then the $29,500 had been returned to Mrs Burgess. That may be so. However, it is correct that initially Mr Butcher paid $85,000
proceeding at the time Mr Paterson wrote the letter of 26 November 2003. There is nothing to show that Mr Paterson realised the $29,500 that had been returned to Simpson Western was actually part of Mr Butcher’s advance of $85,000. Unless it could be shown Mr Paterson knew this, there is nothing inconsistent in him writing a letter to Work and Income stating Mr Butcher had paid $85,000 towards the purchase of property, despite the return of $29,500 to Mrs Burgess. Secondly, the person involved here is Mr Paterson and not Mr Clark. To attribute these acts to Mr Clark would require proof that Mr Paterson acted at Mr Clark’s behest. There is nothing to suggest that occurred. Accordingly, there is nothing about these circumstances that assists in proof of a s 220 offence against Mr Clark.
[24] Secondly, Mr Butcher has complained that Mr Clark was responsible for the purchase of one block of land proceeding in the form that saw a newly incorporated company take legal ownership of that land. Mr Butcher says this was never to happen. However, in the letter of 3 October 2003 from Mr Clark to Mr and Mrs Burgess and Mr and Mrs Butcher, in the last paragraph at page 5 of the letter Mr Clark refers to a need to discuss the identity and structure of the purchasing entity. He then goes on to refer to Mrs Burgess advising him that Peter King had recommended the purchase be done by a registered company. There is then some comment about the tax advantages of using a registered company to make the purchase.
[25] Accordingly, it seems the idea of using a registered company was first suggested by Mr Butcher’s own lawyer, Peter King. Whatever suspicions Mr Butcher might have about the use of a company, the evidence shows the idea did not spring from Mr Clark, and it was Mrs Burgess who seemingly approved that outcome.
Conclusion
[26] For all of the above reasons I was satisfied Judge Sharp acted reasonably and lawfully. I was also satisfied from the evidence provided by Mr Clark that there is
s 220 of the Crimes Act. Hence I dismissed the judicial review proceeding.
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