Choi v Attorney-General
[2024] NZHC 3678
•4 December 2024
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 received, and which she believes is a product of the stress she suffered from the offending. She went on to say that the officer would not let her do that and that the officer said that she needed to write the statement there and then because that was the prosecutor’s strict instruction.
[8] On 10 May 2021, the offender was sentenced in the District Court to nine months of intensive supervision and to 40 hours of community work.1 In his decision,
1 Police v Teuira [2021] NZDC 10943.
the Judge mentioned that he had not received an updated victim impact statement. So he relied on the first victim impact statement Ms Choi had given. The updated statement, although less comprehensive than Ms Choi may have liked, would have provided considerably greater detail of her physical injuries than was the case in the first victim impact statement. In addition, it provided details of the emotional harm she had suffered from the incident; a point that was not addressed in the initial statement.
[9] Ms Choi wanted to be there at the sentencing but she could not find the right courtroom. She was told by a victim adviser when the sentencing would take place but was not given details of the courtroom. Ms Choi is unhappy with the sentence the offender received. She believes that it was too lenient.
The grounds of review and the positions of the parties
[10] In the first and second causes of action, it is alleged that “the prosecutor” did not “conduct the sentencing” in accordance with the Prosecution Guidelines such that there was a failure to take into account a mandatory relevant consideration and such that Ms Choi’s legitimate expectation that the Guidelines would be complied with was not met.
[11] Details of the claim, under both heads, are expressed in the statement of claim in the following way:
The prosecutor did not conduct the sentencing in accordance with the [Guidelines], in respect of the applicant’s status as a victim, as the prosecutor did not do the following:
Particulars
a. Never contacted the applicant nor had a police officer engage with the applicant in conformity with the [Guideline] obligations;
b. Did not inform the applicant that an updated [victim impact statement] was being arranged, so she could prepare her thoughts and have her medical reports available to attach to the updated victim impact statement;
c. Directed Constable Mathew Spear to obtain an updated VIS as a matter of urgency, during the day at the applicant’s business address, which resulted in the [victim impact statement] being rushed and applicant not having her medical reports available to attach to the updated victim impact statement;
d. In the premise that Constable Mathew Spear informed the prosecutor that the applicant had medical reports she wished to form part of the updated [victim impact statement], took no steps to obtain these reports;
e. Did not provide the updated [victim impact statement] to the sentencing judge;
f. At sentencing, sought no punitive element for the offence.
[12] In the third cause of action, it is alleged that the prosecutor acted unlawfully because, in breach of s 21 of the Act, he failed to provide the updated victim impact statement to the sentencing Judge.
[13]Declarations are sought in the following terms:
(a)a declaration that the prosecutor failed to reasonably comply with their obligations to Ms Choi, as provided by the Prosecution Guidelines;
(b)a declaration that the prosecutor’s conduct fell short of Ms Choi’s legitimate expectation that he reasonably comply with their obligations under the Prosecution Guidelines, in relation to victims; and
(c)a declaration that the prosecutor did not comply with s 21 of the Victims’ Rights Act by failing to provide Ms Choi’s updated victim impact statement to the judicial officer sentencing the offender.
[14] The Attorney-General says that, in the first place, judicial review is not available under the Judicial Review Procedure Act 2016 because no statutory power has been exercised by police. The prosecution of criminal charges is not, the Attorney-General says, an exercise of statutory power. In any event, it is said for the Attorney-General that a declaration could not be available because, for there to be a declaration, the Court must be able to pronounce upon the existence or non-existence of a legal state of affairs. No such state of affairs exists, it is said, because Ms Choi has no legal rights to which a declaration of the type she seeks could attach. It is said that neither the Act nor the Guidelines “confer legal rights, much less ones enforceable against the police”.
[15] The Attorney-General says that, even if declaratory relief was available, the Court should in its discretion decline to grant relief because it would in the circumstances of this case lack utility and would “inevitably” undermine the finality of the sentencing process.
The issues
[16]There are four issues to be considered:
(a)Are steps that a prosecutor takes, or fails to take, in the course of a sentencing process amenable to review?
(b)If so, in taking, or in failing to take, certain steps in the course of the offender’s sentencing, did the prosecutor:
(i)fail to comply with the Act; or
(ii)fail to comply with the Prosecution Guidelines?
(c)If so, was there unlawfulness, a failure to take into account mandatory relevant considerations or a breach of Ms Choi’s legitimate expectations?
(d)If so, should relief be granted through the making of a declaration?
Are steps that a prosecutor takes, or fails to take, in the course of a sentencing process amenable to review?
Does Ms Choi need to identify a statutory power for judicial review to be available?
[17] The Judicial Review Procedure Act provides a framework and a set of procedural provisions for judicial review of the exercise of “statutory powers”.2 A cornerstone provision – s 11 – provides that if, in relation to the exercise of a statutory power,3 proceedings are commenced for a writ of or in the nature of mandamus,
2 Judicial Review Procedure Act 2016, s 3.
3 As defined in s 5.
prohibition or certiorari,4 then the proceedings must be treated and disposed of “as if” they were an application for judicial review. In this sense “judicial review” applications under the Act are founded in the Court’s common law judicial review jurisdiction – which exists quite independently of the Act.
[18] While the statutory procedure under the Judicial Review Procedure Act is available if a statutory power is in question, non-statutory public power may still be judicially reviewed at common law. The Act widens the relief that may be granted and simplifies the procedure that is to be used where statutory powers are involved but courts will, beyond the exercise of statutory powers, review exercises of power which are in substance public or have public consequences; whatever the origins of the powers may be.5 Part 30 of the High Court Rules will apply.
[19] While the Attorney-General suggests that this proceeding must be considered under the Judicial Review Procedure Act because the applicant has intituled it that way, it is always open to the Court to adopt a pragmatic approach if, for example, a public law proceeding might better be considered on a different basis, so long as prejudice does not result.
[20] So, for example, an application for a declaration or injunction might better be viewed as an application for judicial review, or vice versa, and an application under the Judicial Review Procedure Act may better be considered at common law.6
Is a prosecutor’s conduct during sentencing an exercise of public power?
[21] Accordingly, the better question under this head is whether the primary allegations made in this proceeding relate to exercises of public power.
4 The prerogative writs that comprise the jurisdiction now known as judicial review.
5 Royal Australasian College of Surgeons v Phipps [1999] 3 NZLR 1 (CA) at 11 and 12, Wilson v White [2005] 1 NZLR 189, (2004) 17 PRNZ 270 (CA) at [21].
6 Judicial Review Procedure Act, s 12 in terms of proceedings for declarations or injunction being treated as an application for judicial review. And the converse will apply also. See, for example, Geothermal Energy New Zealand Ltd v Commissioner of Inland Review [1979] 2 NZLR 324, (1979) 10 ATR 279 (SC) at 335–336; and Kelly v Commissioner of Police [1985] 1 NZLR 430 (HC).
[22] At one level, it can be said that prosecutors are exercising public functions when they take certain steps in criminal proceedings. As the Court of Appeal found in Osborne v Worksafe New Zealand, prosecutorial decision-making is an exercise of public power and amenable to review in different ways.7 That finding remains good law: the Supreme Court overturned the Court of Appeal’s decision in Osborne,8 but not on the basis of its approach to reviewability of the exercise of prosecutorial discretion.9
[23] However, real caution is needed. As the Court of Appeal said in Osborne, the exercise of prosecutorial discretion is justiciable but restraint needs to be exercised, particularly where the prosecutorial decision is to prosecute.10 However, there is no jurisdictional distinction between decisions to prosecute and not to prosecute. Equally, in the context of this case, I do not see a jurisdictional distinction between decisions to prosecute or not and the way in which a prosecution is conducted. The focus really falls upon the discretionary power to give relief.11
[24] Included within the types of case involving prosecutorial discretion that may be reviewable are failures to accord to the applicable code for the conduct for prosecutions. A failure of this type might be cast as an error of law or a failure to have regard to a relevant consideration.12
[25] Accordingly, the pleaded grounds of review are justiciable. However, the nature of the subject matter is such that a degree of restraint is needed. But, as I see it, that restraint is applied not so much through an adjustment to the intensity of review but in considering a potential remedial response. It is there that the heart of this case lies.
7 Osborne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513 at [32]–[52] [Osborne (CA decision)].
8 Osborne v WorkSafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447 [Osborne (SC decision)].
9 See, for example, Attorney-General v Fitzgerald [2024] NZCA 419 at [98] in which it was said that the Supreme Court judgment amounted to a disagreement with the Court of Appeal’s decision over the application of settled principle but did not undermine the broader discussion in the Court of Appeal’s judgment in Osborne on the circumstances in which prosecutorial discretions to prosecute might be subject to review.
10 Osborne (CA decision), above n 7, at [33]–[36].
11 At [38], for example.
12 At [49], citing R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136 (QB Div).
[26]However, before reaching that point, the other issues need to be addressed.
Was there a failure to comply with the Victims’ Rights Act?
[27] It is sufficiently clear that the prosecutor failed to comply with s 21(1) of the Victims’ Rights Act, which provides that, if a victim impact statement has been prepared, it must be submitted by the prosecutor to the judicial officer sentencing the offender. The Attorney-General accepts that to be the case.
[28] An updated victim impact statement was prepared in this case. It was relevant to the sentencing exercise because the initial victim impact statement, prepared the day after the offending, was four years out of date by the time the sentencing took place. The updated statement contained additional relevant information and material.
Was there a failure to comply with the Prosecution Guidelines?
[29] It is said for Ms Choi that there was a failure to comply with certain provisions in the Prosecution Guidelines in one or more of the ways described in the statement of claim and set out at [11] above.
[30] The Attorney-General says that there is no clear breach of the Prosecution Guidelines because, first, they are expressed in such general terms and, secondly, because they were not breached on the facts.
The terms of the Prosecution Guidelines
[31] Under s 185 of the Criminal Procedure Act 2011, the Solicitor-General is responsible for maintaining general oversight of the conduct of public prosecutions. To discharge that responsibility, the Solicitor-General may, under that provision, maintain guidelines for the conduct of public prosecutions. Under s 188 of the Act, a Crown prosecutor who conducts a Crown prosecution under s 187 must conduct it in accordance with any directions given by the Solicitor-General.13 Section 188 does not refer to police prosecutors.
13 Criminal Procedure Act 2011, s 187 provides for the performance of the Solicitor-General’s responsibility for the conduct of prosecutions by Crown prosecutors.
[32] In the then-Attorney-General’s introduction to the Prosecution Guidelines, he said:
2. Unlike most similar jurisdictions, New Zealand has no centralised decision-making agency in relation to prosecution decisions. In respect of Crown prosecutions, prosecutions are mainly conducted by Crown Solicitors
– private practitioners appointed to prosecute under a warrant issued by the Governor-General. Other prosecutions are conducted by the New Zealand Police and numerous other enforcement agencies that are responsible for enforcing a particular regulatory area …
3. The absence of a central decision-making process underscores the importance of comprehensive guidelines, and the acceptance of core prosecution values … The revised Guidelines reinforce the expectations that the Solicitor-General and I have of all prosecutors who prosecute on behalf of the State.
(emphasis added)
[33] To similar effect, cl 2.1 of the Guidelines provide that all public prosecutions “should be conducted in accordance with these Guidelines” and cl 2.2 provides that adherence to them “is also a condition of the warrant held by each Crown Solicitor”.
[34]Clause 2.3 is in the following terms:
The Guidelines are not an instruction manual for prosecutors. Nor do they cover every decision that must be made by prosecutors and enforcement agencies. They do not purport to lay down any rule of law. They instead reflect the aspirations and practices of prosecutors who adhere to the United Nations Guidelines on the Role of the Prosecutor (1990) and the International Association of Prosecutor Standards (1999).
[35] Against that background, Ms Choi alleges that a number of guidelines have been breached. I consider each in turn.
Clause 5.8 – public interest considerations for prosecution
[36] Clause 5.8 lists public interest considerations which may be relevant and require consideration by a prosecutor when determining where the public interest lies in any particular case. The assessment to be made is relevant to a prosecutor’s decision to initiate or continue a prosecution. One of the considerations relied upon, cl 5.8.11, is where a victim of an offence has suffered a personal attack and the other, cl 5.8.16, is where a defendant took advantage of a victim. These provisions are not relevant to
the work of a prosecutor in relation to a sentencing hearing so cannot have been the subject of non-compliance in this case.
Clause 15 – bail
[37] Ms Choi has referred to cl 15.5 which requires prosecutors to make reasonable efforts to ensure a victim’s views are put before the Court where an application for bail is made. Again, the clause has no relevance here and so cannot have been the subject of non-compliance.
Clause 19 – the prosecutor and trial fairness
[38] Clause 19.5 provides that prosecutors should be cognisant of the needs of victims and ensure that, in accordance with the law and the requirements of a fair trial, victims and witnesses are treated with care and respect. The clause applies to a prosecutor’s conduct during a trial. It is not relevant to the way in which a prosecutor liaised with Ms Choi over sentencing and so, once more, cannot have been the subject of non-compliance.
Clause 21 – prosecutors and sentencing
[39] Clause 21.2.3 is on point. It provides that, while a prosecutor should not press for a particular sentence, where it is considered necessary or appropriate, he or she should assist the sentencing Court by providing, amongst other things, “the impact on any victims of the offending”.
Clause 29 – victims
[40] Clause 29 is on point also. Clause 29.1 provides that victims of crime in the criminal justice system are to be treated with courtesy and compassion and with respect for their dignity and privacy.
[41]The subclauses that follow are in the following terms:
29.2 The key means of observing these principles is through the provision of information to ensure that victims understand the process and know what is happening at each stage. So far as is possible, the victim should have
explained to them the court processes and procedures, and should be kept informed of what is happening during the course of the proceedings.
29.3 Prosecutors should seek to protect the victim’s interests as best they can whilst fulfilling their duty to the Court and in the conduct of the prosecution on behalf of the Crown.
29.4 Crown prosecutors are referred to the protocol “Victims of Crime – Guidance for Prosecutors” (issued with these Guidelines) for greater detail as to the role and duties of prosecutors in respect of victims. Prosecutors in government agencies should be aware of and take into account the guidance provided in that protocol.
The Victims of Crime Protocol
[42] The Victims of Crime – Guidance for Prosecutors 2014 Protocol, referred to in cl 29.4 of the Prosecution Guidelines (set out above), provides guidance for prosecutors dealing with victims in accordance with the “requirements and spirit” of the Victims’ Rights Act. A breach of the Protocol is not pleaded but the Protocol is relevant to the issues and was discussed with counsel during the hearing.
[43] Clause 3 of the Protocol provides that the Solicitor-General expects all prosecutors, whether conducting public prosecutions or Crown prosecutions, to comply with the Protocol. The Protocol sets out a range of “overarching principles” for prosecutors to follow when dealing with victims of crime including explanations about what is happening during the course of a proceeding.
[44] Clauses 29–34 set out a range of requirements for prosecutors at sentencing. Clause 29 provides that a prosecutor must make all reasonable efforts to ensure that information is ascertained from a victim about the impact of the offending for submission to the Judge sentencing the offender. Clause 29 provides that the victim impact statement to be obtained is to be “a full, detailed, up-to-date and verified” statement, while cl 31 provides that a prosecutor must ensure that the statement is “a true reflection of the effects of the offending on the victim”. Moreover, cl 33 provides that prosecutors “should discuss with the victim how they would like their statement presented to the Court” and provide them with options accordingly.
The application of the relevant provisions to the facts
[45] With the relevant provisions in mind, I return now to the particular allegations that are made under this head, as set out in [11] above.
[46] The first is that the prosecutor “never contacted the applicant nor had a police officer engaged with the applicant in conformity with the [Guideline] obligations”. However, the evidence shows that Ms Choi was contacted by the police regularly throughout the prosecution process. She was referred to the court victim advisor. An initial and an updating victim impact statement were recorded. Ms Choi met with police after the updated statement was provided and before the sentencing hearing took place.
[47] As counsel for the Attorney-General has said, in hindsight it may have been helpful for the victim advisor or the police officer to have explained to Ms Choi that she would be able to find the courtroom on the day using the court noticeboard. If that had been done, she would not have needed details of the courtroom in advance. However, there is no requirement in the Prosecution Guidelines that the prosecutor is to meet with the victim personally or is to provide particular information. Rather, the Guidelines anticipate that prosecutors will act reasonably to ensure that victims have explained to them court processes and procedures, and what is happening during the course of the proceedings. That occurred here.
[48] The second allegation is that the prosecutor did not inform Ms Choi that an updated statement was being arranged so that she could collect her thoughts and have her medical reports available. There is no non-compliance with the relevant provisions here. While advance notice may be desirable, there is no requirement for it in the Guidelines.
[49] The third allegation is that the prosecutor directed the officer managing the case to obtain an updated statement as a matter of urgency. Again, non-compliance does not result but there are, in any event, no time requirements in the Guidelines as they relate to victim impact statements.
[50] The fourth allegation is that the police officer involved did not take steps to obtain relevant medical reports from Ms Choi in circumstances in which the officer had informed the prosecutor that reports were available. Again, while reports may usefully be included with a victim impact statement if they are relevant, there is nothing in the Guidelines that creates an obligation to obtain them.
[51] The fifth allegation is that the prosecutor did not provide the updated victim impact statement to the sentencing Judge. I do not believe there is any doubt that cl 21.2.3 of the Guidelines, supplemented by cls 29 and 31 of the Protocol, has been breached here. While the initial victim impact statement report was provided to the sentencing Judge, the information contained within it was, as I have said, limited. It was supplemented materially, in line with the obligations contained in the Guidelines, the Protocol and the Victims’ Rights Act. Relevant information about the emotional toll the offending took on Ms Choi was not given in the initial victim impact statement, because the offending had just occurred, and only limited information could be given about the ongoing impact of physical injuries. That information was provided, in quite a compelling way, in the updated statement.14 Just as s 21 of the Victims’ Rights Act was breached, so too were these provisions in the Guidelines and in the Protocol.
[52] The sixth allegation is that the prosecutor sought no punitive element for the offence at sentencing. There can be no breach of the Guidelines under this head. As the Protocol provides, while prosecutors should consider victims’ views on any significant decision relating to proceedings, ultimately, they act in the public interest and do not act or advocate for a victim.15
Are the judicial review causes of action made out in relation to the breaches of the Act and of the Prosecution Guidelines that have been established?
[53] The first and second grounds of review are for failing to take into account a mandatory relevant consideration and for not acting in accordance with Ms Choi’s legitimate expectation through breaching the Prosecution Guidelines. Each is an
14 Had the updated statement not been obtained, there would not have been a breach as such. However, under cl 29 of the Protocol, a victim impact statement must be “up-to-date”.
15 Crown Law Victims of Crime – Guidance for Prosecutors (Crown Law, December 2014) at [9].
available ground of review. However, it will be difficult to make out grounds of review such as these on the facts and in the circumstances of this case.
[54] As the Court of Appeal said in Osborne, making out grounds of review such as having regard to irrelevant considerations or failing to have regard to relevant considerations are difficult grounds to establish in the context of the Prosecution Guidelines because of the width of the considerations to which the prosecutor may properly have regard, as well as the limited scope of the considerations that are truly mandatory, rather than merely permissive.16
[55] Similar difficulties arise in framing the issues in legitimate expectation terms. The Court of Appeal in Osborne made the point that provisions in the Victims Rights Act and in the Prosecution Guidelines are not enlarged by individual applications of the doctrine of legitimate expectation.17 Moreover, the reliance needed for a legitimate expectation to be made out is not apparent on the evidence in this case.
[56] The proceeding is best viewed, on all fronts, through the unlawfulness cause of action. The breach of the Victims’ Rights Act was clearly unlawful. While in the Prosecution Guidelines it is said that they “do not purport to lay down any rule of law”,18 they must be followed, at least to the extent possible in the circumstances of a case and having regard to the nature of the particular step in the prosecution process that is in question.
[57] In Osborne, the Supreme Court’s decision turned largely upon the application of the Guidelines. Having set out the relevant provisions,19 the Court went on to say, in applying them:20
And the prosecution decisions of a public prosecutor must be consistent with the purpose and policies of the legislation which establishes the offence and under which the prosecutor acts. In New Zealand the prosecutor must also act consistently with the Solicitor-General’s Prosecution Guidelines which set out “core and unifying standards for the conduct of public prosecutions” [with a
16 Osborne (CA decision), above n 7, at [45]. As mentioned in n 9, the Supreme Court in Osborne (SC decision), above n 8, did not undermine the discussion in the Court of Appeal’s judgment on the circumstances in which directions to prosecute might be subject to review.
17 At [87].
18 Crown Law Solicitor-General’s Prosecution Guidelines (Crown Law, July 2013) at [2.3].19 Osborne (SC decision), above n 8, at [27]–[37].
20 At [73].
reference here to the Attorney-General’s Introduction to the Guidelines] and are intended to promote public confidence in the system of public prosecutions [with a reference here to the Solicitor-General’s Introduction to the Guidelines]. (footnotes omitted)
[58] The exercise of power in this case – the need to provide the updated victim impact statement to the sentencing judge – is different to that being considered in Osborne – the payment of reparation conditional on the withdrawal of charges. And Osborne related to a Crown prosecution, with the prosecutor accordingly under a statutory obligation21 to obey the Guidelines, which is not the case here. Differences aside, fundamental components of the public prosecution process are involved in each case. But, in any event, in the particular circumstances of this case, the relevant provisions in the Guidelines simply reinforce a mandatory obligation contained in a statutory provision; s 21. The breach of that provision is what leads to the finding of unlawfulness here.
[59]The real question in the proceeding is whether relief is available or appropriate.
Is declaratory relief available or appropriate?
[60] The Attorney-General says that neither the Victims’ Rights Act nor the Prosecution Guidelines confer legal rights for Ms Choi, much less rights that are enforceable against the police. She says that the claim must fail on this basis alone. Moreover, she says that a declaration is not available because Ms Choi is not asking the Court to declare the correct interpretation of an instrument in terms of s 3 of the Declaratory Judgments Act 1908 and because she has not otherwise identified a legal right that is capable of forming the basis for a declaration.
[61] I do not see that the primary purpose of all declarations in all judicial review proceedings is to be vindicatory—in the sense of the court declaring legal rights between parties. That in my view is to fail to recognise the distinction between declarations that are sought when one individual claims a right against another22 and
21 Criminal Procedure Act, s 188.
22 And to which the seminal statement in Gouriet v Union of Post Office Workers [1978] AC 435, [1977] 3 All ER 70 at 501, per Lord Diplock – that declarations need to determine rights rather than give advisory opinions – relates.
the ability of a private individual to bring proceedings for interference with public rights.23 As the Court of Appeal said in Peters v Davison:24
Fourthly, the alleged errors of law in this case, if established, do not have a simple hypothetical character. They may have real practical consequences. In the end the issue can be seen as one about the function of the Courts. Is it fundamental to the judicial role that in deciding disputes between parties it is concerned only with the enforcement of the rights of one and the duties of the other, or do the Courts as a matter of constitutional principle have the power to see that public authorities do not make material errors of law?
[62] Another way of putting it is that there is an aspect of the Attorney-General’s position on this point that reflects a view that the function of judicial review is only to protect individual rights. As Palmer J said when addressing the issue of standing in judicial review, while the protection of individual rights is a function of judicial review, it is not the only function. Another, equally important, function is to protect the public interest, although which function dominates will depend on the facts and relevant law in the individual case.25
[63] It is not the case that declarations have only been made in an individual-rights mould. Declarations of inconsistency are but one example.26 Other examples include the declaration made in Peters v Electoral Commission,27 where the High Court declared that a view conveyed by the Electoral Commission in a letter to the applicant was an incorrect interpretation of the law,28 and the declaration made in P v District Court at Manukau,29 where the High Court declared that statements made by a District Court Judge to the effect that the applicant – who was a complainant in a sexual
23 Peters v Davison [1999] 2 NZLR 164 (CA) at 187.
24 At 188.
25 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094 at [26]; citing Mark Elliott and Jason N E Varuhas Administrative Law: Text and Materials (5th ed, Oxford University Press, Oxford, 2017) at ch 14.7; and Jason N E Varuhas “The Public Interest Conception of Public Law: Its Procedural Origins and Substantive Implications” in John Bell, Mark Elliott, Jason N E Varuhas and Philip Murray (eds) Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing, Oxford, 2016) 45 at 57–60.
26 Where a court will declare legislation to be inconsistent with a right under the New Zealand Bill of Rights Act 1990. The Court’s jurisdiction to make such orders was confirmed by the Supreme Court in Attorney-General v Taylor [2018] NZSC 104, [2019] 1 NZLR 213; and see, by way of example, Make It 16 Inc v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683.
27 Peters v Electoral Commission [2016] NZHC 394, [2016] 2 NZLR 690.
28 At [90].
29 P v District Court at Manukau [2022] NZHC 1102, [2022] NZAR 314.
criminal case – had made false sexual allegations were wrong and made without evidential foundation.30
[64] As I see it, a declaration could be available even if the Victims’ Rights Act, supplemented by the Prosecution Guidelines and Protocol, did not confer rights upon Ms Choi so long as, ultimately, a declaration was appropriate in the circumstances. However, the question of whether the Act does confer rights remains relevant and is the first port of call.
[65] The Crown’s argument that the mandatory obligation in s 21 of the Victims’ Rights Act, reflected equally in cl 21.2.3 of the Guidelines, does not confer a legal right on the victim is a difficult one. It may well be that some of the provisions in the Act and in the Guidelines do not create “rights” as such (despite the title of the Act). The nature and extent of a prosecutor’s liaison with a victim over timetabled steps in a proceeding might be an example of that. However, the obligation to have a victim’s statement put before a sentencing Judge is a fundamental tenet of the Victims’ Rights Act and of the sentencing process itself. It is not something that undermines a prosecutorial discretion which may in other circumstances be beyond the reach of a public law remedy.
[66] Accordingly, I turn to consider whether a declaration is an appropriate remedy in these circumstances. It is a fundamental principle that, if unlawfulness is found, it is only in unusual circumstances that relief would not be granted,31 and the more fundamental the error, the more likely it is that relief will be granted, particularly where illegality is involved.32 However, as I said earlier, there is a real need for caution when the Court is considering the review of a prosecutor’s decision.33
[67] The Attorney-General says that there are factors that would tell against the conversion of the s 21 obligation into something that could be the subject of declaratory relief.
30 At [119].
31 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
32 Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60] and [61]; clarified in Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [117], and GXL Royalties Ltd v Minister of Energy [2010] NZCA 185, [2010] NZAR 518 at [67].
33 Osborne (CA decision), above n 7, at [34].
[68] The first is that there are other avenues for complaint under the Victims’ Rights Act. Under s 49, a victim may complain to the Independent Police Conduct Authority about a breach of a number of obligations that the Act imposes for the benefit of victims, including the obligations under s 21. It is said that a declaration from the Court would not add anything, particularly as, under s 50 of the Act, damages may not be awarded.
[69]But there is more to s 50 than that. It is in the following terms:
50 Other ways in which rights may be enforced
(1)Except as provided in subsection (2), neither section 49 nor this section limits the ways in which rights conferred by the specified provisions (as defined in section 49(1)(a)) may be enforced.
(2)No person (for example, the Crown in right of New Zealand) may be required (for example, by any court, tribunal, or other body) to pay any money (whether by way of damages, compensation, or otherwise) to any other person just because of a breach of any of the specified provisions.
(3)An example of the operation of subsection (2) is that the Human Rights Review Tribunal (as defined in section 7(1) of the Privacy Act 2020) may require the payment of money in respect of conduct that is, or may be, a breach of any of the specified provisions, if that conduct also constitutes an interference with the privacy of an individual.
[70] As the heading of s 50 itself indicates, the Act contains “rights” that may be “enforced”. The provision then provides that, so long as no person is required to pay money because of a breach of certain provisions, including s 21, the ways in which those provisions may be enforced are not limited.
[71] Accordingly, I do not see s 49 as suggesting that declaratory relief could not be available.
[72] Secondly, the Attorney-General says that the creation of a legal right would cut across the sentencing process. It would, it is said, amount to a collateral attack on the finality of that process.
[73] I do not see issues of the type that are in question here as undermining a sentencing outcome. Under s 8(f) of the Sentencing Act, the Court must take into account “any information provided to the court concerning the effect of the offending
on the victim”. Where, as here, an updated victim impact statement was not given to the Court but the Judge had the original statement, it could not be said that the Judge did not comply with the Act in sentencing the offender such that the sentence might in some way become unsafe.
[74] Moreover, here, the offender has served the sentence imposed. Accordingly, no appeal could be brought.34 But, if a sentence was still on foot, an appeal could only succeed where the sentence given is regarded as being manifestly inadequate.35 That is a high threshold having regard, as well, to the fact that courts will be more reluctant to increase a sentence than to reduce one,36 particularly if increasing a sentence would “cause injustice to the offender” and even if a sentence is found to be manifestly inadequate.37
[75] Furthermore, information not used at sentencing should not be used on appeal to increase a sentence and the courts are, as well, reluctant to intervene in circumstances in which the Crown did not do all that could reasonably have been expected of it to assist the court to avoid an error at first instance.38
[76] With factors such as these in mind, I cannot see a declaration of the type sought as undermining the sentencing process or as in any way affecting the sentence given and served by Ms Choi’s attacker.
Conclusion and outcome
[77] For all of these reasons, I have concluded that s 21 of the Victims’ Rights Act, supported by cl 21.2.3 of the Prosecution Guidelines, creates legal rights for Ms Choi that, if breached should properly be recognised through a declaration.
34 Criminal Procedure Act, s 249.
35 R v Cargill [1990] 2 NZLR 138 (CA) at 140.
36 See R v Wihapi [1976] 1 NZLR 422 (CA) at 424; R v Muavae [2000] 3 NZLR 483 (CA) at [10] and [19]; and McCaslin-Whitehead v R [2023] NZCA 259 at [31]–[32].
37 Philip v R [2022] NZSC 149, [2022] 1 NZLR 571 at [43].
38 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [SAB5.09].
[78] The illegality in this case, to be clear, relates only to the failure of the prosecutor to provide the updated victim impact statement which had been prepared to the sentencing Judge.
[79] Accordingly, I make a declaration that the prosecutor did not comply with s 21 of the Victims’ Rights Act 2002, as supported by cl 21.2.3 of the Solicitor-General’s Prosecution Guidelines 2013, in failing to provide the applicant’s updated victim impact statement to the judicial officer sentencing the applicant’s offender.
[80] The applicant is entitled to costs, calculated on a 2B basis. The parties are encouraged to confer over the sum that is payable under the High Court Rules. If it becomes necessary to do so, counsel for the applicant may file a memorandum on costs within 15 working days of the date of this decision and counsel for the respondent may file any memorandum in response within a further five working-day period. All such memoranda, including schedules, should not exceed five pages in length.
Radich J
Solicitors:
Exco Legal, Wellington for Applicant Crown Law, Wellington for Defendant
0
9
0