Claydon v Swanepoel
[2025] NZHC 945
•16 April 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2024-488-104 [2025] NZHC 945
BETWEEN CHRISTOPHER CLAYDON
Appellant
AND GEORGE SWANEPOEL
Respondent
Hearing: on the papers
Counsel/ Representation:
C Claydon in person
P Moodley for respondent
Judgment: 16 April 2025
JUDGMENT OF JOHNSTONE J
(leave to appeal)
This judgment was delivered by me on 16 April 2025 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Brookfields, Auckland
CLAYDON v SWANEPOEL [2025] NZHC 945 [16 April 2025]
[1] Christopher Claydon, a private prosecutor in proceedings before the District Court at Whangārei, applies to this Court for leave to appeal against a judgment, issued in that proceeding, on 19 September 2024.1
[2]In very basic terms, enlarged upon below:
(a)Mr Claydon had commenced his prosecution in 2021, by lodging2 a broadly framed, “representative” charging document, alleging offending under the Telecommunications Act 2001. The charge was accepted for filing, having survived the initial scrutiny that may be given to private prosecutions under s 26 of the Criminal Procedure Act 2011 (CPA).
(b)By judgment dated 7 August 2023, Judge P R Rzepecky amended the charging document to allege a single offence, committed on a particular date.3 And the Judge made directions contemplating the lodging of further charges, which Mr Claydon had previously sought to pursue under the banner of the original, representative charge.
(c)Mr Claydon lodged a further 20 charges. But when Judge Rzepecky considered their contents, he found that they alleged such distinct actions they could not properly have formed part of the representative charge. The Judge issued the 19 September 2024 Judgment, making this point when considering the issue of whether, in terms of s 26 of the CPA, they should be accepted for filing, and deciding they should not.
[3] Mr Claydon says his 20 additional charging documents should have been accepted for filing. He says, in essence, that the original, representative charge appropriately captured a range of offending, and that his additional charges correctly
1 Claydon v Swanepoel [2024] NZDC 21838 (the 19 September Judgment).
2 I use the term “lodge” to describe the physical process of providing a document to a court registry, to distinguish that action from the conduct involved in a document being “accepted for filing” in terms of s 26 of the Criminal Procedure Act 2011. While, in lay terms, “lodging” a document might be described as “filing” it, s 26 clearly contemplates a difference between physical provision and formal acceptance.
3 Claydon v Swanepoel [2023] NZDC 16062.
particularised that range of offending. The additional charges did not require scrutiny under s 26.
[4] Mr Swanepoel, the defendant, disagrees, preferring Judge Rzepecky’s reasoning. In any event, Mr Swanepoel says, this Court would not have jurisdiction to consider the proposed appeal. He says that it would amount to an appeal against Judge Rzepecky’s direction under s 26(3) that the additional charges should not be accepted for filing. Directions under s 26(3) are not appealable.
[5] I am required to consider whether there is jurisdiction to appeal the 19 September 2024 Judgment. If there is jurisdiction to appeal, I will be required to consider whether the Judge erred in law when directing that the 20 additional charges not be accepted for filing.
Background
[6] For some time, a dispute existed between Mr Claydon and the Far North District Council over his use of a pontoon on the Kerikeri River, adjacent to land that has variously been described as “reserve land” and as an “accessway” or “legal road”. Mr Claydon purchased the pontoon in 2015. He upgraded it. His intention was to moor his ocean-going yacht alongside, and to live there with his family, conducting business through a company registered with the Companies Office. The Council objected to Mr Claydon establishing the pontoon and yacht as his permanent address.
[7] In 2020, Mr Swanepoel was senior corporate counsel for the Far North District Council. On 24 August 2020, Mr Swanepoel sent the Companies Office two emails, advising that the physical address Mr Claydon had provided in connection with his company was not a valid address, recognised or authorised by the council.
Summary of proceeding to date
[8] Mr Claydon sought to commence the proceeding in February 2021. He filled out a pre-printed form of a charging document, available on the Ministry of Justice’s website (and labelled MOJ9001), and lodged the completed form with the
District Court at Kaikohe. The substantive parts of the charging document read as follows:
[9]As can be seen:
(a)The date of the alleged offence is said to be “on diverse dates 24 August 2020”.
(b)The conduct is described as conduct involving the submission, on 24 August 2020, of a form containing false claims. And it is further described as “part of a course of conduct” involving “other fictitious messages”.
(c)The charging document refers to s 112(2)(b) of the Telecommunications Act 2001, which provides that:
Every person commits an offence who—
(a)uses, or causes or permits to be used, any telephone device for the purpose of disturbing, annoying, or irritating any person, whether by calling up without speech or by wantonly or maliciously transmitting communications or sounds, with the intention of offending the recipient; or
(b)in using a telecommunications device, knowingly gives any fictitious order, instruction, or message.
(d)The alleged offence was said to be a category 1 offence. The charging document was flawed in this respect. The above charge is punishable by a maximum penalty of three months’ imprisonment or a $2,000 fine.4 It is a category 2 offence.5
(e)The charge was said to be a representative charge.
[10]It might also be noted that:
(a)Mr Claydon’s stated address — 116 Riverview Road, Kerikeri — is the physical address the subject of Mr Swanepoel’s emails.
(b)The handwritten charge code appearing on the charging document appears to have been added within the District Court’s registry.
[11] The Registrar exercised their discretion under s 26(1)(b) of the CPA, to refer the charging document to a District Court Judge. On 4 March 2021, Judge D J McDonald observed there was insufficient information on the face of the charging document and directed that it should not be accepted for filing until formal statements and exhibits were provided and considered.
[12] Mr Claydon provided formal statements and exhibits. On 5 July 2021, Judge K B de Ridder found himself satisfied that the threshold for accepting charging documents for filing had been met, and made a direction to that effect. The Judge must be taken to be unpersuaded, in terms of s 26(3) that:
(a)the evidence provided by Mr Claydon was “insufficient to justify a trial”; or
(b)“the proposed prosecution [was] otherwise an abuse of process”.
[13] The prosecution commenced to proceed through orthodox stages in preparation for a trial. However, progress has been slow.
4 Telecommunications Act, s 112(3).
5 Criminal Procedure Act, s 6(1).
The application heard on 21 June 2023
[14] Mr Swanepoel applied, by application dated 22 March 2022 and made under s 147 of the CPA, for an order dismissing the charge. The s 147 application was set down for hearing on 21 June 2023. But, five days before the hearing, Mr Swanepoel applied to amend the charging document. The amendment sought was to remove the reference to the charge being representative. The hearing proceeded on 21 June 2023. It addressed only Mr Swanepoel’s application to amend.
[15] Mr Claydon’s position at the hearing on 21 June 2023 was that the charging document relied on Mr Swanepoel’s 24 August 2020 emails, but nevertheless incorporated other occasions on which similar communications containing false information about him had been sent. He had not particularised those other occasions, as he had not had time to file separate charges, and their likely number might be difficult for the Court and the parties to deal with.6
The 7 August 2023 Judgment
[16]By judgment dated 7 August 2023, Judge Rzepecky:7
(a)observed that there was detail sufficient to permit Mr Claydon’s allegations relating to two emails sent by Mr Swanepoel on 24 August 2020 to found a distinct charge;8
(b)found there to be no reason Mr Claydon could not pursue his further allegations, implicitly referred to in the charging document as the balance of the so-called “course of conduct” involving “other fictitious messages”;9 and
(c)declared himself satisfied it was in the interests of justice to allow Mr Claydon the opportunity to bring further charges “based on specific
6 Claydon v Swanepoel, above n 3, at [11].
7 Claydon v Swanepoel, above n 3.
8 At [22].
9 At [23].
allegations of similar communications by Mr Swanepoel if these exist”.10
[17]On this basis, the Judge made the following directions:11
(a)Mr Swanepoel’s application to amend the charging document is granted.
(b)I direct that charging document CRN 21027500221 be amended by the deletion of the word “Yes” to “Representative charge”, so that the charge only relates to a single offence relying on the particulars of the communications of 24 August 2020.
(c)I further direct, that the prosecutor is given leave to divide the representative charge CRN 21027500221, into two or more charges pursuant to s 21(1)(a) of the Act.
(d)The prosecutor will file and serve any additional charges within 10 working days of the date of this decision.
Mr Claydon’s response to the 7 August 2023 Judgment
[18] In response, Mr Claydon lodged 20 further charging documents: 12 alleging offences under s 112(2)(b) of the Telecommunications Act; six alleging various offences under the Crimes Act 1961; one alleging offences under the Harassment Act 1997; and one alleging offences under the Summary Offences Act 1981.
[19] The additional Telecommunications Act charges each identify an email sent by Mr Swanepoel, or at his behest, containing one or more “false claims”, which Mr Claydon asserts amount to fictitious messages in terms of s 112(2)(b). The other additional charges allege, broadly, that Mr Swanepoel’s conduct relating to the disputed street address amounted to blackmail, fraud, criminal nuisance, harassment, intimidation, and an attempt to pervert the course of justice.
[20] Again, the District Court’s Registrar referred the matter, under s 26(1) of the CPA, to a District Court Judge for review. In this instance, Judge Rzepecky.
10 At [24].
11 At [25].
[21] While recognising it was unusual for a potential defendant to be heard, Judge Rzepecky considered it appropriate in the circumstances of this case. The Judge convened a hearing, on 31 January 2024.
The 19 September 2024 Judgment
[22] Judge Rzepecky’s judgment following the 31 January hearing was issued on 19 September 2024.12
[23] The Judge found the 12 additional Telecommunications Act charges to allege offending at different times, involving different subject matter and different parties and could not properly have “been within” the original representative charge. Instead, they amounted to “fresh charges”.13
[24] In this regard, as (category 2) charges carrying a maximum penalty of three months’ imprisonment or a $2,000 fine, the Judge found each of the 12 additional Telecommunications Act charges fell outside the six-month limitation period established by s 25(3)(a) of the CPA. They were time-barred and did not survive application of the relevant threshold.14
[25] The Judge turned to the other eight additional charges and found them similarly to involve allegations of conduct on the part of Mr Swanepoel quite distinct from his sending of messages to the Companies Office. Again, the Judge found himself required to consider whether the s 26(3) threshold, for a direction that the relevant charging document must not be accepted for filing, was met. In each case, the Judge found the threshold to be met. These charges were not time-barred, but, in terms of s 26(3)(a), the evidence provided by Mr Claydon was “insufficient to justify a trial”.
12 Claydon v Swanepoel, above n 1.
13 At [22].
14 At [23]. I note that the relevant threshold, set out in s 26(3) of the CPA, is the threshold for a direction that a charging document “must not” be accepted for filing. The Judge should be taken to have found, in terms of s 26(3)(b), that the proposed prosecution of these charges would amount to an abuse of process.
[26]In concluding his judgment, Judge Rzepecky wrote:15
In summary I have decided that none of the 20 additional charges which the prosecutor has presented for filing can be derived from the original representative charge. Accordingly in each case I have directed the [R]egistrar not to accept the charging document for filing. That leaves the original charge for Mr Claydon to prosecute.
The parties’ submissions
[27] Mr Claydon’s submissions, filed in support of his application for leave to appeal, assert six grounds of “appeal”:
(a)First, the Judge did not have sufficient regard to Mr Claydon’s circumstances. The original representative charge was framed appropriately because Mr Claydon could not, in terms of s 20(1)(c) of the CPA, “reasonably be expected to particularise dates or other details of the offences”.
(b)Second, the Judge erred when interpreting the permitted scope of a representative charge under s 20. Variations in communications’ recipients and subject matter were not such as to require separate charges.
(c)Third, the eight additional charges alleging offences under the Crimes Act, Harassment Act and Summary Offences Act “contained elements” of the original representative charge. The Judge should have treated the charges as deriving from the original charge, conceivably by applying s 133 of the CPA, with the effect that they did not require review under s 26 of the CPA (given Judge de Ridder’s direction to accept the representative charge for filing).
(d)Fourth, those eight additional charges might have been accepted as allegations of offending under the Telecommunications Act, and treated
15 At [59].
as derived from the original representative charge, rather than needing s 26 review.
(e)Fifth, the Judge erred when assessing the sufficiency of evidence for a proposed charge, under s 117(e) of the Crimes Act.
(f)Sixth, the Judge was insufficiently familiar with the case.
[28] Mr Claydon’s first four grounds are directed at essentially the same proposition; that is, he says the original, representative charge was framed properly, in a manner that incorporated the substance of the 20 additional charges. Accordingly, Mr Claydon says the additional charges derive legitimately from the original charge, and thus did not require fresh scrutiny under s 26.
[29] Mr Swanepoel’s submissions in response cited four grounds of opposition. His grounds include that there is no ability to appeal — under s 296 or under any other provision of the CPA — a decision under s 26 of the CPA, to direct that charging documents should not be accepted for filing.
[30] On Mr Swanepoel’s jurisdictional point, Mr Claydon responds by saying it is irrelevant. Mr Claydon says he is not appealing a decision under s 26. He says he is appealing a decision made under s 21, a failure to consider s 133, and other errors of law, such as in respect of the LGOIMA. In essence, Mr Claydon resists the notion that the s 26 review was necessary, or indeed available, in respect of his 20 additional charges. He says that Judge de Ridder’s consent to the original, representative charge should have operated, in effect, to “bless” the additional charges which derived from the original.
Jurisdiction to appeal?
Principle
[31]Section 296 of the CPA provides as follows:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[32] In Mitchell v Tyson, Clark J observed, referring to s 296(1), that s 296 applies if a person has been charged with an offence, and held:16
Before it can be said that a defendant is charged in terms of s 296, at the least, the charging document must have been accepted for filing. If charging documents have not been accepted for filing it cannot be said that anyone has been charged with an offence. That the Registrar physically took the charging documents for the purpose of reference to the Judge and that the documents were allocated CRI numbers and that the proposed three defendants appeared before [a judge] to give their account of the factual allegations against them does not constitute the charging of a person with an offence.
[33] Further, the question of law in a first appeal under the subpart within which s 296 appears must arise in proceedings that relate to or follow the determination of the charge.17 And:18
… I do not consider that a direction not to accept a charging document for filing is remotely, let alone “closely”, linked to disposition or “determination”.
[34] Accordingly, Clark J found s 296 not to permit the proposed appeals of the putative prosecutor in that case (where a judge had directed that charging documents should not be accepted for filing). Justice Clark dismissed the application for leave to appeal, for want of jurisdiction.
16 Mitchell v Tyson [2016] NZHC 2210 at [32].
17 Section 296(3).
18 Mitchell v Tyson, above n 16, at [38] (footnote omitted).
[35] In D v Auckland District Court, the Court of Appeal put the point more succinctly:19
Under the Criminal Procedure Act there is no right of appeal for decisions made by a Judge or Registrar under s 26.
Mr Claydon’s position
[36] As indicated above, Mr Claydon accepts the authority of these decisions. He says, however, that they do not apply, because the 20 additional charges derive legitimately from the original, representative charge. Relying on his first four grounds of appeal, Mr Claydon says that Mr Swanepoel had, in terms of s 296(1) “been charged” under the original charge, and that the 19 September 2024 Judgment amounted to an erroneous “determination” of charges which should be regarded as having formed part of the original charge.
Analysis
[37] I disagree. In my view, the original charge was not correctly framed as a representative charge. None of the 20 additional charges were properly the subject of the original charge. They were thus, as the Judge put it, “fresh” charges, which required consideration under s 26. The Judge scrutinised the fresh charges and directed that they should not be accepted for filing. Therefore, this Court does not have jurisdiction to grant Mr Claydon’s application for leave to appeal.
[38]I have reached my view for the following reasons:
(a)Mr Claydon’s first ground of appeal is unsound. His submission, that he could not, in terms of s 20(1)(c) of the CPA, “reasonably be expected to particularise dates or other details of the offences” relies on his own circumstances as complainant. But s 20(1) provides as follows:
A charge may be representative if–
(a)multiple offences of the same type are alleged; and
19 D v Auckland District Court [2022] NZCA 477 at [34].
(b)the offences are alleged to have been committed in similar circumstances over a period of time; and
(c)the nature and circumstances of the offences are such that the complainant cannot reasonably be expected to particularise dates or other details of the offences.
(emphasis added)
Each of the 20 additional charges that Mr Claydon was eventually able to lodge identifies dates and specific episodes of offending. There is nothing about the nature and circumstances of the offences which might justify Mr Claydon’s failure to file specific charges alongside an original charge referring to the emails of 24 August 2020. Mr Claydon suggests he was taken by surprise by a police decision not to prosecute Mr Swanepoel, and for that reason acted reasonably in filing only one, broadly framed, charge. As a prosecutor, however, Mr Claydon bears the responsibility of bringing proceedings correctly, in accordance with the CPA. His own circumstances at the time he elected to pursue a private prosecution are irrelevant to the circumstances of Mr Swanepoel’s alleged offences. Section 20(1)(c) does not excuse Mr Claydon’s lack of particularity.
(b)Mr Claydon’s second ground of appeal, that the variations in communications’ recipients and subject matter were not such as to require separate charges, rather than a representative charge properly framed in reliance on s 20, is also flawed. My observations at [38](a) apply to rule out representative charging under s 20(1). Section 20(2) provides as follows:
A charge may also be representative if—
(a)multiple offences of the same type are alleged; and
(b)the offences are alleged to have been committed in similar circumstances such that it is likely that the same plea would be entered by the defendant in relation to all the offences if they were charged separately; and
(c)because of the number of offences alleged, if the offences were to be charged separately but tried together it would be
unduly difficult for the court (including, in any jury trial, the jury) to manage the separate charges.
Mr Claydon’s 20 additional charges would not have been difficult for the court to manage. Twenty is far from an unmanageable number of charges. Indeed, given the variation in communications’ recipients and subject matter, separation of the proposed charges at the time the original charge was filed would have facilitated their management, permitting the District Court more easily to assess their merit.
(c)My observations at [38](a) and (b) dispose also of Mr Claydon’s third and fourth grounds of appeal. As the original representative charge was not framed properly, so as to include allegations the subject of the 20 additional charges, the additional charges could not be treated as deriving from the original charge. Section 133 of the CPA, relating to the amendment of charges, is irrelevant. The additional charges have never properly formed part of a charge, so cannot be construed as having manifested by way of amendment.
(d)It follows that it is not necessary for me to consider Mr Claydon’s fifth and sixth grounds of appeal.
Conclusion and result
[39] The 19 September 2024 Judgment required and was issued in consequence of a s 26 review of Mr Claydon’s 20 additional charges. Judge Rzepecky accordingly had, and exercised, all necessary authority to direct under s 26(3) that the additional charges should not be accepted for filing. That being the case, it is neither necessary nor appropriate that I consider whether any question of law arising in Mr Claydon’s proposed appeal should be determined in his favour.
[40] The Courts being without jurisdiction to hear an appeal against a s 26(3) direction, Mr Claydon’s application for leave requires to be, and is, declined.
Johnstone J
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