Chapman v Police
[2023] NZHC 1435
•9 June 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-33
[2023] NZHC 1435
BETWEEN KYLE SHANE CHAPMAN
Appellant
AND
POLICE
Respondent
Hearing: 1 June 2023 Appearances:
J Grainger and H Beaven for Appellant K B Bell for Crown
Judgment:
9 June 2023
JUDGMENT OF CULL J
[1] This appeal involves the issue of a collateral challenge to the validity of a Covid-19 Public Health Response Order in a criminal prosecution. Mr Chapman seeks leave to appeal an evidential ruling in the District Court that the evidence challenging the Covid-19 Order was inadmissible.1 The Crown does not oppose leave being granted.
[2] Mr Chapman is charged with intentionally failing to comply with COVID-19 Public Health Response (Alert Level Requirements) Order (No. 9) 2021 (the Order) for attending an outdoor gathering on 19 August 2021 in protest against the Order.2 The empowering statute under which the Order was made is the COVID-19 Public
1 New Zealand Police v Chapman [2023] NZDC 512. Leave to appeal is sought under the Criminal Procedure Act 2011, s 215(2)(a).
2 COVID-19 Public Health Response Act 2020, ss 26(1) and (2); and COVID-19 Public Health Response (Alert Level Requirements) Order (No. 9) 2021, cl 21(1) – maximum penalty six months’ imprisonment or $4000.00 fine.
CHAPMAN v POLICE [2023] NZHC 1435 [9 June 2023]
Health Response Act 2020 (the Act). Mr Chapman wishes to defend the charge by challenging the validity of the Order, which he says breached his rights under the New Zealand Bill of Rights Act 1990 (NZBORA).
[3] Leave is granted to appeal as it involves a question of law that should be determined prior to trial.
Background
Alleged offending and procedural history
[4] Mr Chapman attended a protest at the Bridge of Remembrance, Christchurch, in an Alert Level 4 area and was consequently charged with intentionally failing to comply with the Order. He believes that the Covid-19 lockdown Order was an unjustified limitation on the rights of New Zealanders and had no relevance to Christchurch which was Covid-19 free.
[5] In defence of the prosecution, Mr Grainger for Mr Chapman filed submissions to mount a collateral challenge to the Order. The Court ordered that the issue of collateral review in a criminal prosecution be dealt with by way of a pre-trial ruling.
District Court ruling
[6] The Judge held that it would be inappropriate to allow a collateral challenge in this case, as Parliament’s intention is clear.3 The nature of Mr Chapman’s offending was criminal, and he overtly intended to breach the Order and challenge it later.4 A collateral challenge would not be appropriate in respect of such wide-reaching secondary legislation. The Order applied nationally, there is high public interest in a challenge to the lawfulness of the Order, and judicial review proceedings in the High Court is the available and appropriate process for such a challenge to be decided.5
3 New Zealand Police v Chapman, above n 1, at [47].
4 At [34] and [36].
5 At [37]-[41].
Parties’ positions
[7] Mr Grainger for the appellant submits that the District Court erred in three ways by:
(a)placing insufficient weight on the importance of individual rights and their explicit protection under the Act;
(b)failing to address the inaccessibility of judicial review in determining that the applicant should have sought judicial review prior to breaching the Order;
(c)placing insufficient weight on the right to present an effective defence to criminal charges (as opposed to regulatory charges) particularly those carrying a penalty of imprisonment.
[8] The Crown supports the District Court decision because the availability of judicial review is preserved expressly under the Act, the statutory context does not support a collateral challenge, and there is insufficient connection between the decision-maker of the Order and the prosecution process to permit a collateral challenge in a criminal prosecution with divergent parties.
The legal principles
[9] The general principle applicable in New Zealand is that a collateral challenge is available in a criminal prosecution where there is a breach of subordinate legislation. Most commonly, it is applied in the context of bylaws but has also been applied to regulatory notices, such as breath test notices under related transport legislation.
[10] The District Court Judge accepted that the decision of Grueber v New Zealand Transport Agency provides the best summary of the relevant case law in New Zealand.6 I agree. Venning J endorsed the principle that a collateral challenge may be
6 Grueber v New Zealand Transport Agency [2014] NZHC 2924, [2015] NZAR54.
raised in the defence of a criminal prosecution but its application will depend on the circumstances of the case. He said:7
In summary, while a collateral challenge may, in principle, be raised in the defence of a criminal prosecution, whether it is applicable in any particular case will depend on the circumstances of the case. That requires consideration of the challenged act, bylaw or decision in issue, the relationship between the decision maker and prosecuting authority, the nature of the alleged offending and the statutory context.
[11] In Grueber, Venning J canvassed three High Court decisions.8 In the decisions cited, the relevant statutory provisions and scheme of the legislation underpinning the local council’s bylaw, dog registration provisions, and local Harbour Board’s expenditure, respectively displaced the general principle that an accused person was entitled to bring a collateral challenge because the challenges were too far removed from the central issues of the prosecution and involved non-parties. I note that Venning J’s approach followed the position of the House of Lords in Boddington v British Transport Police.9
[12] The Supreme Court of Canada in R v Consolidated Maybrun Mines Ltd,10 to which the District Court Judge referred and in part adopted,11 held that five factors were relevant, when determining whether a Court can rule on the validity of an administrative order collaterally attacked in criminal proceedings. They included the wording of the statute from which the power to issue the Order derives; the purpose of the legislation; the availability of an appeal; the nature of the collateral attack; and the penalty on a conviction for failing to comply with the Order.12
[13]In R v Bird,13 the Supreme Court of Canada endorsed the factors in Maybrun
but observed that Mr Bird had several options to challenge the condition of an
7 At [16].
8 New Zealand Police v Chapman, above n 1, at [11]–[15], citing Harwood v Thames Coromandel District Council [2008] NZAR 518 (HC); Moore v Police [2010] NZAR 406 (HC); and Brady v Northland Regional Council [2008] NZAR 505 (HC).
9 Boddington v British Transport Police [1999] 2 AC 143, [1998] 2 WLR 639 (HL).
10 R v Consolidated Maybrun Mines Ltd [1998] 1 SCR 706.
11 New Zealand Police v Chapman, above n 1, at [16]-[17].
12 R v Consolidated Maybrun Mines Ltd, above n 10, at [45] to [47].
13 R v Bird [2019] 1 SCR 409 at [27]–[28].
extended supervision order, which he breached. The Court disproved of the “breach first/challenge later” approach of the defendants by saying: 14
…if a person were entirely free to ignore these established procedures for challenging the order and could breach the order and wait for criminal charges to be laid before challenging it, this would risk discrediting the authority of administrative bodies that issue such orders and undermine the effectiveness of administrative regimes.
[14] There are three cases since Grueber, in which a collateral challenge was permitted in the criminal context. In Whichman v Department of Corrections Woolford J upheld the appellant’s conviction of breach of release conditions.15 He disagreed with the District Court Judge’s finding however and that a collateral challenge to the reasonableness of a special condition imposed by the Parole Board could only be brought by judicial review proceedings. Woolford J said:16
The majority of the Supreme Court in Siemer v Solicitor General [2013] NZSC 68 at footnote 255 did not deal with collateral challenge of administrative decisions. The Chief Justice in her dissent noted at [65] that:
An application for judicial review (or other procedure for direct challenge) is ‘not a straitjacket which must be put on before rights can be inserted’. And since no crime is committed through an infringement of an invalid rule, the order may be challenged in the court in which the offence is tried, unless such challenge would be an abuse of process.
I am inclined to agree with her.
[15] In the other two examples, the Court was content to deal with a collateral challenge in the criminal appeal, where a non-association order as a condition of an extended supervision order was held to be unreasonable,17 and a Probation Officer’s direction was held to be an unjustified restriction on the defendant’s right to freedom of association.18
14 At [27].
15 Whichman v Department of Corrections [2013] NZHC 3075.
16 At fn [7].
17 Te Whatu v Department of Corrections [2017] NZHC 3233.
18 Morely v Police [2018] NZHC 1103.
Discussion
[16] In declining the defendant’s application to adduce collateral challenge evidence, the Judge adopted a blended approach of the Maybrun factors and the New Zealand approach articulated in Grueber.19 The most significant factor in the decision, as Mr Grainger submits, is that the Judge found that Parliament could not have intended a “breach first, challenge later” approach, as it would be directly contrary to the purpose of the regime to manage the breakout and spread of Covid-19 and the specific provisions within the legislation.20
[17] I have some difficulty in accepting the Judge’s view that the breach occurred to instigate a challenge. This was a protest about the Order with which Mr Chapman is now charged for breaching. Having been prosecuted for his attendance at the protest, Mr Chapman now wishes to formally challenge the Order. I do not accept that it was Parliament’s intention that a “breach first, challenge later” approach should not be countenanced.
[18] It is more correct, as the parties submit, that Parliament intended that the Act be compliant with the NZBORA. Section 9(1)(ba) of the Act requires such compliance before a Covid-19 Order can be made. Further, s 13 of the Act expressly preserves the ability to raise a legal challenge, in the nature of judicial review of any discretion or the making of any Covid-19 Order, as I deal with below.
[19] While the Judge did not solely rely on the Canadian approach and the “breach first, challenge later” maxim, I consider the more appropriate course is to follow the reasoning in Grueber. It is important, in my view, that the principle of collateral challenge in a criminal prosecution is preserved. The question will always be whether it is applicable in the circumstances of the case.
[20] It is the applicability of the principle that is determinative here in my view. The Order, the relationship between the Ministry of Health and the Police and the
19 New Zealand Police v Chapman, above n 1, at [17].
20 New Zealand Police v Chapman, above n 1, at [33].
statutory context, displace the general principle from application. There are four reasons, in my view, why the general principle is not applicable in this case.
[21] The first is the nature of the Order and its decisionmaker. The legal challenge is against the Minister of Health who has no relationship to the prosecuting authority. The Minister, acting with Parliamentary approval issued the notice and would need to be party to any proceeding challenging the lawfulness of the Order. As Ms Bell submits, the Criminal Procedure Act 2011 does not provide for non-defendants being joined as parties to a criminal proceeding.21 There is no overlap between the prosecution witnesses required to prove the offending and the witnesses required for the Court to address the validity of the Order. That is the first legal impediment for Mr Chapman.
[22] Second, in a criminal prosecution there is no requirement on the defendant to disclose his or her defence. If the collateral challenge were to take place in the criminal prosecution of Mr Chapman, the Minister, the former Director-General of Health and/or other Crown witnesses could conceivably not be made aware of the nature of the challenge until the opening of the defence case. Ms Bell observes correctly that the Criminal Procedure Act does not allow for a judicial review procedure in the criminal context, or the provision of affidavit evidence prior to the hearing.
[23] Third, Mr Chapman intends to challenge the legality of the Order by asserting that the Order has been made ultra vires of the Act. The District Court lacks the jurisdiction to hear an ultra vires challenge. Mr Grainger submits that the matter can be transferred to the High Court in such circumstances. Even if transferred, to overcome the first legal hurdle, Mr Chapman would need to issue judicial review proceedings, to join the decisionmaker and any experts or officials to his challenge. Inevitably, this means he would have to issue judicial review proceedings.
21 Criminal Procedure Act 2011, s 185.
[24] Fourth, s 13 of the Act specifically preserves a NZBORA and/or a judicial review challenge, by its specific provisions. Section 13 provides:
1 Effect of COVID-19 orders
(1)A COVID-19 order may not be held invalid just because—
(a) it is, or authorises any act or omission that is, inconsistent with the Health Act 1956 or any other enactment relevant to the subject matter of the order; or
(b) it confers a discretion on any person, or allows any matter or thing to be granted, specified, determined, designated, defined, approved, or disapplied by any person, or allows a person to impose conditions or give directions, whether or not there are prescribed criteria.
(2)However, subsection (1)(a) does not limit or affect the application of the New Zealand Bill of Rights Act 1990.
(3)To avoid doubt, nothing in this Act prevents the filing, hearing, or determination of any legal proceedings in respect of the making or terms of any COVID-19 order.
[25] Ms Bell provided the response of the leader of the ACT party, when debating the Bill at the first reading, who noted the powers exercisable under the Act are:22
…clearly judicially reviewable and the Minister has gone to some effort to make that pretty clear in the way the [B]ill is written…. but it is very clear that this is judicially reviewable … such an order can be made only in a way that is proportional to the objective and does not unduly override the rights of New Zealanders according to the New Zealand Bill of Rights Act.
[26] Mr Grainger accepted in reply that the difference between the jurisdiction and procedure of Mr Chapman’s criminal prosecution and the legal challenge to the Order counted against the principle of collateral challenge in a criminal prosecution being applied here. He accepted that a judicial review hearing on the validity of the Order may well answer the criminal prosecution. However, the impediment to issuing judicial review proceedings, Mr Grainger emphasised, is the inaccessibility of funding for Mr Chapman to bring such proceedings. He reverted to the ground of appeal, in which Mr Chapman claims that the Judge failed to address the lack of funding to mount a challenge, even prior to the breach of the Order.
22 (12 May 2020) 745 NZPD 17629.
[27] The issue of funding is not a matter that can be addressed by this Court on appeal. Nevertheless, the outcome of this appeal means that if Mr Chapman wishes to pursue his challenge to the Covid-19 Order, he needs to seek judicial review and if successful, this would provide a complete answer to Mr Chapman’s prosecution.
[28] Counsel for both parties in this appeal have made very full and helpful submissions on how the overseas jurisdictions have approached collateral challenges in criminal prosecutions. Their submissions have been thorough and extensive. The fact that I have not canvassed them in full does not mean that they have not been taken into account. Rather, the respective procedure in New Zealand for the civil and criminal pathways, which would be involved in mounting this proposed collateral challenge, has been determinative in this case. Plainly, judicial review should precede the prosecution.
[29] Accordingly, I uphold the District Court Judge’s ruling and dismiss Mr Chapman’s appeal.
Result
[30]Leave to appeal is granted.
[31]The appeal is dismissed.
Cull J
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