Chapman v Police - [2023] NZHC 1435

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].

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 Chapman v Police

Details

AGLC: Chapman v Police [2023] NZHC 1435
Case: [2023] NZHC 1435
Decision Date: 9 June 2023

CaseChat Overview and Summary

The case of Chapman v Police concerns an appeal by Kyle Shane Chapman against the decision of the District Court to exclude evidence challenging the validity of a Covid-19 Public Health Response Order. Chapman is charged with intentionally failing to comply with a Covid-19 lockdown Order by attending a protest in Christchurch. He seeks to challenge the Order's validity on the basis that it breaches his rights under the New Zealand Bill of Rights Act 1990. The Crown does not oppose Chapman's leave to appeal.

The legal issues before the court were whether the District Court correctly ruled that a collateral challenge to the validity of the Covid-19 Order was inadmissible in Chapman's criminal prosecution and whether the District Court's ruling was consistent with New Zealand case law on collateral challenges. The court had to consider whether the principles established in Grueber v New Zealand Transport Agency and R v Consolidated Maybrun Mines Ltd applied to the facts of this case and whether there were any impediments to Chapman raising a collateral challenge in his criminal prosecution.

The court found that the District Court's ruling was correct. The court held that a collateral challenge was not appropriate in this case due to the nature of Chapman's alleged offending, the relationship between the decisionmaker of the Order and the prosecuting authority, the statutory context, and the availability of judicial review proceedings. The court found that Parliament intended for challenges to the validity of Covid-19 Orders to be raised through judicial review, not in criminal prosecutions. The court also found that Chapman's arguments regarding funding for judicial review proceedings were not properly before the court on appeal.

Leave to appeal is granted. The appeal is dismissed.

Orders