Carroll v District Court at Nelson HC Nelson CIV 2009-442-509

[2009] NZHC 2604

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV-2009-442-509

BETWEEN  MARK ANTHONY CARROLL Applicant

ANDTHE DISTRICT COURT AT NELSON Respondent

Hearing:         14 December 2009

Appearances: R Ord for the plaintiff

H Boyd-Wilson for the defendant

Judgment:      22 December 2009

JUDGMENT OF CLIFFORD J

[1]      On  27  November  2009,  in  the  District  Court  at  Nelson,  Judge  Zohrab declined an application by the appellant, Mr Carroll, for an oral evidence order for his committal hearing.  Mr Carroll subsequently sought to appeal that decision.  The District Court at Nelson (through the Registrar) declined to accept his notice of appeal, indicating to Mr Carroll that he should apply to judicially review the Judge’s decision.

[2]      In this application for judicial review, Mr Carroll challenges the Judge’s decision  declining  Mr  Carroll’s  application  for  an  oral  evidence  order,  and  the District Court’s decision declining to accept his challenge to the Judge’s decision as an appeal.

[3]      At the hearing of that judicial review application before me on 14 December, which  was  brought  on  as  a  matter  of  urgency,  Mr  Boyd-Wilson  appeared  on

instructions to represent the Attorney-General who should have been a party to these

CARROLL V THE DISTRICT COURT AT NELSON HC NEL CIV-2009-442-509  22 December 2009

proceedings.  I therefore proceed on the traditional basis that the Attorney-General is, in effect, the second respondent, Mr Boyd-Wilson represents the Attorney and that the District Court is not actively a party.

Background

[4]      Mr  Carroll  faces  a  series  of  charges  relating  to  events  alleged  to  have occurred on 4 September 2009.  It is alleged that on that day Mr Carroll slashed the tyres of a motor vehicle on private property.  The Police were called.   Mr Carroll tried to escape the scene and was apprehended by the Police.   Mr Carroll faces charges of wilful damage, burglary, possession of an offensive weapon (a knife), driving while disqualified, threatening to kill, refusing to give blood and attempting to pervert the course of justice.

[5]      Whilst Mr Carroll admits some of the offending, he denies, for example, that he was the driver of the vehicle and that he entered the property.  He also says that he was assaulted by a Police officer on his arrest, hit his head, and his actions after that time (threats to kill and refusal to give blood) may be explained by that injury, or mean that evidence after that time is inadmissible.  On the attempting to pervert the course of justice charge, Mr Carroll says that he simply wrote to an acquaintance, asking that acquaintance to give evidence for him before he knew that that acquaintance was in fact to give evidence for the Police.

[6]      On 17 November 2009 Mr Carroll applied for an oral evidence order under the new Part 5 of the Summary Proceedings Act 1957.  The basis of that application was, in summary, that it was necessary to hear oral evidence to determine whether there was sufficient evidence to commit Mr Carroll to trial and it was otherwise in the interests of justice to hear the witnesses to challenge the sufficiency of the evidence.  Mr Carroll asserts that oral evidence was critical to laying a foundation for a pre-trial admissibility issue, and that anticipated evidence from an eyewitness, who had not provided a formal written statement, was relevant to the charges.

[7]      On 27 November 2009 Judge Zohrab declined that application.

[8]      Mr Carroll consequently sought to appeal against Judge Zohrab’s decision. Counsel filed a notice of appeal under ss 115 and 116 of the Summary Proceedings Act.  That notice was refused by the Registrar of the District Court at Nelson, for reasons set out in an email quoted in the statement of claim at para 12.3.   The Registrar stated, in essence, that it was the consensus that the appropriate course was to apply for judicial review.

[9]      Mr  Carroll  subsequently  filed  an  application  for  judicial  review  of  the lawfulness of the Judge’s decision:

[10]     Mr Carroll seeks a declaration that the decision to refuse the oral evidence order application is a nullity and either (a) an oral evidence order, or (b) an order that an appeal from Judge Zohrab’s decision may be heard by this Court.

The law

Committal hearings

[11]     Part 5 of the Summary Proceedings Act was substituted from 29 June 2009. Section 145(1) states that:

The purpose of this Part is to reform the law relating to preliminary hearings in criminal proceedings by replacing preliminary hearings with a standard committal procedure (which does not involve a hearing or consideration of the evidence), that is followed unless a party has been granted leave to orally examine a witness (in which case a committal hearing is held).

[12]     The Explanatory Note to the Criminal Procedure Bill stated:

With the elimination of preliminary hearings, the criminal trial procedure will be streamlined.   Witnesses will no longer be required to testify more than once in court, except where a Judge requires them to, and this will save court time and reduce stress on victims.

[13]     If an oral evidence order is made, a committal hearing is to be held: s 183 of the Act.  Otherwise, committal proceeds on the papers.

Oral evidence orders

[14]     Section 184B of the Summary Proceedings Act provides:

184B  No oral evidence without order

The Court must not hear the oral evidence of the defendant or of any witness at a committal hearing unless an oral evidence order has been made in relation to that person.

[15]     An application for an oral evidence order may be made by either party under s 178, which provides:

178  Application for oral evidence order

(1)   Either party may apply to a District Court Judge for an order allowing the oral examination, at a committal hearing, of—

(a)   any witness who has provided a formal written statement; or

(b)any  person  who  has  not  provided  a  formal  written  statement, whether that person is proposed to be examined as a witness for that party or for the other party; or

(c)   any person who is to give evidence for that party in relation to the exercise of any power or jurisdiction conferred by any of sections 7 to 14 of the Criminal Procedure (Mentally Impaired Persons) Act

2003.

(2)   An application under subsection (1) must be made no later than 14 days after the date on which the prosecutor is required to file written statements under section 168(1).

(3)   Despite subsection (2), a District Court Judge may grant leave for an application under subsection (1) to be made later than the time specified in subsection (2) if the Judge is satisfied that it is necessary in the circumstances of the case.

[16]     Section 180 specifies the grounds on which the Judge may make an oral evidence order, and circumstances in which the Judge may not make such an order:

180  Determination of application for oral evidence order

(1)   Before  a  District  Court Judge  makes  an  oral  evidence  order  on  an application under section 178, the Judge must be satisfied,—

(a)if the proposed order is for the oral examination of a witness who has provided a formal written statement, that—

(i)   it  is  necessary  to  hear  the  witness  in  order  to  determine whether there is sufficient evidence to commit the defendant for trial; or

(ii)  it is otherwise in the interests of justice to hear the witness; or

(b)if the proposed order is for the oral examination of a person who has not provided a formal written statement,—

(i)   that the anticipated evidence of that person is relevant to the charge specified in the information; and

(ii)  either—

(A)  that the person has been requested to give evidence in the form of a formal written statement but has failed or refused to do so; or

(B)  that it is otherwise in the interests of justice to hear the witness; or

(c)if the proposed order is for the oral examination of a person who is to give evidence in relation to the exercise of any power or jurisdiction conferred by any of sections 7 to 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, that the anticipated evidence of that person is relevant to the exercise of such a power or jurisdiction.

(2)   The Judge may refuse an application for an oral evidence order if he or she considers that the application was made—

(a)   for the purpose of delay; or

(b)   for any other improper purpose.

(3)   The Judge must determine an application for an oral evidence order on the basis of—

(a)   the witness's formal written statement (if any); and

(b)   any other written evidence; and

(c)   any written submissions; and

(d)   any oral submissions made in accordance with subsection (4).

(4)   A  party  who  applies  for  an  oral  evidence  order  may  make  oral submissions to the Judge in support of that application.

(5)   If a party makes oral submissions under subsection (4), the other party may also make oral submissions to the Judge on that application.

[17]     Brookers’  Summary  Proceedings  commentary  notes  in  the  heading  at SA180.01 that “there is no guidance provided as to the ambit of ‘otherwise in the interests of justice’ in s 180(1)(a)(ii) and 180(1)(b)(ii)(B)”, and that:

These provisions are a valuable supplement to the Criminal Disclosure Act

2008 in enhancing disclosure.   One ground, therefore, for seeking an oral evidence order is that the existence of significant evidence is likely to be revealed by examination of a witness, and that such evidence will have a material bearing on whether there is a case to answer.

The amending legislation makes such orders the exception rather than the rule in order to expedite proceedings.   Consequently the section must be interpreted in that light, and it is likely that applications which are merely “fishing expeditions” will be rejected.

Right to appeal?

[18]     Mr Carroll initially sought to file an appeal against Judge Zohrab’s decision declining his application.  The Registrar declined to accept that appeal.  Mr Carroll says he has a right to appeal.

[19]     Section 115(1) of the Summary Proceedings Act provides a general right of appeal to the High Court against a District Court’s determination of “any information or complaint”:

(1)   Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and—

(a)   Convicts any defendant; or

(b)   Makes any order, including—

(i)    An order for the payment for costs; or

(ii)  An order declining an application for the payment for such costs; or

(iii) An order for the estreat of a bond,—

the person convicted or against whom the order is made may appeal to the High

Court.

[20]     In Herewini v Ministry of Transport [1992] 3 NZLR 482 (HC), it was held that there could only be a right of appeal under section 115(1) if the information had been determined in the District Court by way of conviction or dismissal, or had been

otherwise disposed of in a final way.  The Court held that at least three conditions must be satisfied before there was a right of appeal under this subsection (other than an appeal against orders for the estreatment of a bond) at 488:

a)   The information must have been determined in the District Court by way of conviction or dismissal or be otherwise disposed of in a final way by the exercise of judicial functions.

b)   The appellant must have been convicted or had an order made against him or her in the sense of a judicial determination resulting in a state of affairs which was adverse to his or her interests.

c)   If the appeal were against the making of an order, the order may have preceded the conviction but must have been made in the course of determining the information or complaint.

[21]     In Black v Fulcher [1988] 1 NZLR 417, 419-420 the Court of Appeal stated:

McGechan J extracted from the prior authorities, mainly the decision of this Court in Police v S [1977] 1 NZLR 1, that an order is appealable if made in the course of a determination or decision; that the test is not purely temporal; and that an order may be regarded as satisfying it if so closely linked with the process of deciding the information that it can properly be described as made in the course or process of so doing.

With respect, those propositions are correct as far as they go, but they do not surmount the difficulty that arose in the present case that the defendant was not a person convicted, nor had any order been made against him on the dismissal of the information. As yet there has been neither a conviction nor a dismissal. One or the other (or the estreat of a bond) is essential to a defendant's right of general appeal under s 155. …

… There is, however, no right of appeal at the stage of a preliminary ruling which does not result in a dismissal of the information.

[22]     Similarly, in Ministry of Fisheries v Dowey [1998] 3 NZLR 5, the Court of

Appeal held at 11:

The intention of s 115 seems to us to be clear.  An appeal will lie where a District Court has determined, judicially and in a final sense, an information or complaint either if the defendant has been convicted or if an order, other than an order for payment of costs on dismissal, has been made against the defendant.

[23]     A declining of an application for an oral evidence order is not, in my view, a determination by the District Court of an information or complaint.  I acknowledge the test is not purely temporal, and that an order may be regarded as satisfying the conditions of s 115(1) if it is so closely linked with the process of deciding the information that it is properly described as made in the course of process of so doing. By reference to the case cited above, however, I do not think it can be said that the District Court has here determined judicially in a final sense the informations which have been laid against Mr Carroll.  Rather, both Mr Carroll’s application for an oral committal hearing, and the District Court’s decision declining to direct that there be such an oral committal hearing, are matters preliminary to any such final determination.

[24]     In my judgment, therefore, there is no right of appeal against Judge Zohrab’s decision and Mr Carroll’s challenge to that decision must be by way of application for judicial review as the District Court advised him.

Judge Zohrab’s decision unlawful?

[25]     In his oral judgment, Judge Zohrab noted that essentially Mr Carroll made his application on three grounds.

[26]     First, that it was necessary to examine witnesses to highlight inconsistences between  the  evidence  of  civilian  witnesses  and  Police  witnesses,  and  more particularly the Police dog-handler.

[27]     Second, a critical witness is Mr Carroll’s associate, a Mr Smith.  It was Mr Smith who Mr Carroll wrote to in order to ask for him to give evidence in Mr Carroll’s favour.  Mr Carroll says there are issues about Mr Smith’s credibility.  Mr Carroll says Mr Smith was the driver on the particular night, and not him.  Therefore Mr Carroll’s proposition was that those issues needed to be explored at a committal hearing because that evidence was critical in terms of the Police being able to sustain a repeat driving whilst disqualified and repeat drink/drive charges.

[28]     The third basis was a need to explore the factual circumstances in which Mr

Carroll had ended up with some severe injuries or a blow to the head.  Mr Carroll

said the blow to the head was caused when he was struck by a Police officer.  The

Police dispute that version of events.

[29]     The Judge went on to comment:

[13]     As  I  have  observed,  the  legislation  is  quite  prescriptive  in  the grounds that need to be made out.  Firstly, I have to enquire whether it is necessary to hear the witnesses in order to determination whether there is sufficient evidence to commit the defendant for trial, or whether it is otherwise in the interests of justice to hear the witness.  There is little case law available, as far as applications for oral evidence orders are concerned, but what is clear is that an oral evidence order, if granted, is not an opportunity to chip away at prosecution evidence or test the credibility of prosecution witnesses, rather than their creditability, that is their capability of being believe.

[14]      But on the basis of the information before me, that is examining the formal written statements, in my view there is clearly a case to be answered in terms of the allegations against the defendant.   I bear in mind the submissions made by Mr Ord , in both written form and oral form, but it seems to me all that is being sought is the chance to chip away at the prosecution evidence and test the credibility of the prosecution witnesses rather than their creditability.  For example the alleged discrepancies as far as the evidence between the dog handler and the civilian witnesses, that can be tested at trial.  Similarly, as far as Mr Smith is concerned, the motive for Mr Smith to lie could be tested at trial, rather than at this stage of the process.  And in terms of how the defendant ended up with his injuries, that also can be tested at trial and, if need be, if the defence is so minded and there is an issue about admissibility of evidence, subsequent to an alleged assault, there is a s 344A procedure, which h is more appropriate at that stage.

[30]     Before me, Mr Ord for Mr Carroll confirmed that the matters identified by the Judge were the aspects of the case against Mr Carroll that Mr Carroll wished to explore in a committal hearing.  He did so by describing those matters as involving the following “unresolved issues”:

a)       Contradictory descriptions of the scene by prosecution witnesses;

b)A late charge of perverting the course of justice against the defendant where the principal witness was well-known to the Police, who have not disclosed the principal witness’s convictions; and

c)       The defendant somehow ended up with a serious head injury which was only commented on by Police after counsel required evidence.

[31]     Mr Ord said that:

These three issues are all pre-trial matters which could be best dealt with before trial.   Just last year, evidence could have been adduced as to their veracity or lack and applications to dismiss some of the charges could then have been considered.

[32]     In terms of the application for judicial review of the Judge’s decision, it was Mr Ord’s submission that it was “in the interests of justice” for Mr Carroll to be able to explore those issues and that the Judge had erred in law either by failing to consider the “interests of justice” aspect of Mr Carroll’s application at all, or failing to do so adequately.

[33]     More generally, Mr Ord argued that – notwithstanding the acknowledged reason for the recent changes to committal proceedings – the test for allowing an application for an oral evidence order should not be set too high.  In that he relied extensively on a decision of MacKenzie J, Mair v Waitangi Tribunal HC Wellington CIV 2009-485-1499, 21 October 2009.  I do not consider the Mair decision, which concerned aspects of the way in which the Waitangi Tribunal was addressing claims, to be of particular assistance here.

[34]     Mr Ord also stressed the advantage to be obtained from a pre-trial hearing for possible s 347 applications.

[35] In my judgment, the Judge did not fail to consider, or did not fail to consider adequately, the “interests of justice ground” to be found in s 180(1)(a)(ii). In my view, and in [14] of his judgment – set out at [29] above – that is exactly what he did. That is, having concluded as regards 180(1)(a)(i) that it was not necessary to hear the witnesses in order to determine whether there was sufficient evidence to commit the defendant to trial, Judge Zohrab went on to consider the submissions Mr Ord had made both in written and oral form. Given the emphasis Mr Ord placed on this ground for his application, both before the Judge and before me, I think it is therefore clear that Judge Zohrab did consider Mr Ord’s submissions as to the interests of justice to the requisite standard.

[36]     In  doing so  he  concluded  that,  given  the  reasons  for  the  reforms  to  the committal process, the matters that Mr Ord sought to explore did not in the interests of justice require an oral evidence order .  Rather they were matters that could be dealt with at trial or, if Mr Ord did wish to advance a challenge to the admissibility of evidence, in terms of s 344A Crimes Act 1961.

[37]     Before  me  Mr  Ord  further  acknowledged  the  availability  of  s 344A

proceedings to challenge the admissibility of evidence.

[38]     On that basis, I do not think the Judge made an error of law, considered irrelevant, or failed to consider, relevant matters or otherwise reached a decision that was not open to him.

[39]     I acknowledge that the new procedures for committal, and the circumstances in which it will be appropriate for the Judge to make an oral evidence order, will be clarified as experience under the new regime accumulates.  I do not think, however and notwithstanding the wide-ranging submissions I received from Mr Ord on the legislation generally, that it is necessary or appropriate for me to embark on any more general analysis of that issue in the context of this application.

[40]     Mr Carroll’s application for judicial review is therefore declined.

[41]     Mr Carroll had originally sought an interim stay of the criminal proceeding. It would appear that the Crown had agreed that the standard committal procedure should be deferred pending the outcome of this hearing.  Therefore, no formal order is now required from me as regards that aspect of the current proceedings against Mr Carroll, other than to observe that there is now no impediment from those standard committal proceedings continuing.

[42]     If necessary, the question of costs is reserved.

“Clifford J”

Solicitors:   R Ord, Nelson for the applicant ([email protected])

The Crown Solicitor, Nelson for the respondent ([email protected]