IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2024-485-226
[2024] NZHC 3678
UNDER
the Judicial Review Procedure Act 2016
BETWEEN
WAI CHUN CHOI
Applicant
AND
ATTORNEY-GENERAL
Defendant
Hearing:
29 October 2024
Counsel:
G E Minchin for Applicant
D P Neild and A A A Ghandour for Defendant
Judgment:
4 December 2024
JUDGMENT OF RADICH J
[1] Wai Choi was assaulted by a customer who tried to shoplift an item from her clothing store. She is concerned about the way in which the prosecutor handled the sentencing of the offender. It is said that arrangements made by the prosecutor for the provision of an updated victim impact statement were inappropriate and that, having obtained the updated statement, it was not then provided to the court. It is said that the prosecutor’s communications with Ms Choi were inadequate and that the prosecutor then “sought no punitive element for the offence”.
[2] As a result, Ms Choi sees the Attorney-General on behalf of the police – as the prosecuting agency – as having breached obligations to her under the Victims’ Rights Act 2002 and the Solicitor-General’s Prosecution Guidelines 2013. In this judicial review proceeding, she seeks declarations to that effect.
CHOI v ATTORNEY-GENERAL [2024] NZHC 3678 [4 December 2024]
[3] If judicial review is available in circumstances such as these, the overarching issue is whether a breach of the Act or the Prosecution Guidelines should properly be the subject of a declaration.
The assault, the prosecution and the sentencing
[4] Ms Choi owns a clothing store in a city centre. In January 2017, she was working at the store when she caught someone trying to steal an item of clothing. She managed to prise the item away from the offender while calling security. However, the offender knocked the phone from her hand and punched her in the face, striking her in the nose and mouth and causing her to fall to the ground.
[5] Ms Choi suffered swelling, cuts and bruising from the assault. And it took a real emotional toll on her.
[6] Ms Choi prepared a victim impact statement the day after the offending. However, it was not until October 2020, almost four years later, that police, with Ms Choi’s help, were able to find the offender and charge her with common assault. The offender entered a guilty plea to an amended charge of aggravated assault in March 2021. Sentencing was scheduled for 10 May 2021.
[7] On 31 March 2021, a police officer assigned to the file met with Ms Choi at her store and obtained an updated victim impact statement from her. In her evidence, Ms Choi has said that, when the officer arrived, she asked if she could write the statement in her own time so that she could make sure that it covered everything she wished it to. She wanted, for example, to include information on – and the results of
– a medical diagnosis she had…
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.
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AGLC
Choi v Attorney-General [2024] NZHC 3678
Case
[2024] NZHC 3678
Decision Date
CaseChat Overview and Summary
The case of Choi v Attorney-General involves Wai Chun Choi, a victim of an assault, seeking judicial review of the prosecutor's handling of her victim impact statement during the sentencing of her attacker. Choi contends that the prosecutor breached her rights under the Victims’ Rights Act 2002 and the Solicitor-General’s Prosecution Guidelines 2013 by not providing an updated victim impact statement to the sentencing judge and by not adequately communicating with her. The court was required to decide whether the prosecutor's conduct was amenable to judicial review, whether there was a breach of the Act or the Guidelines, and whether relief through a declaration was appropriate. The court held that prosecutorial conduct during sentencing is an exercise of public power and can be reviewed. It found that there was a breach of the Victims’ Rights Act and the Prosecution Guidelines, as the prosecutor failed to provide the updated victim impact statement to the sentencing judge. The court concluded that a declaration was appropriate as it recognised the legal rights of the victim and did not undermine the finality of the sentencing process. The court made a declaration that the prosecutor did not comply with the statutory and guideline obligations and awarded costs to Choi.