Claydon v Swanepoel - [2025] NZHC 945

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.

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 Claydon v Swanepoel

Details

AGLC: Claydon v Swanepoel [2025] NZHC 945
Case: [2025] NZHC 945
Decision Date: 16 April 2025

CaseChat Overview and Summary

The case of Claydon v Swanepoel involves an application by Christopher Claydon for leave to appeal a judgment rendered by Judge Rzepecky in a proceeding before the District Court at Whangārei. Claydon, acting as a private prosecutor, sought to add 20 additional charges against George Swanepoel, who is the senior corporate counsel for the Far North District Council. The primary legal issue before the Court was whether the additional charges should have been accepted for filing under the Criminal Procedure Act 2011 (CPA). Judge Johnstone dismissed the application, holding that the Court lacked jurisdiction to hear an appeal against a decision under s 26 of the CPA to direct that charging documents should not be accepted for filing.

The court began by examining the nature of the original representative charge and the subsequent additional charges. It was noted that the original charge was flawed as it did not adequately specify the offences. Despite this, Judge de Ridder had accepted the representative charge for filing. However, when Claydon lodged additional charges, Judge Rzepecky found that these charges did not derive from the original representative charge and required separate scrutiny under s 26 of the CPA. Judge Rzepecky concluded that the additional charges should not be accepted for filing, leading to the 19 September 2024 Judgment.

Claydon argued that the original representative charge was properly framed and that the additional charges legitimately derived from it, thereby bypassing the need for scrutiny under s 26. However, the Court rejected this argument, finding that the original charge was not correctly framed as a representative charge. Each of the additional charges identified specific dates and episodes of offending, which could not have formed part of the original charge. The Court also found that the variations in the recipients and subject matter of the communications justified separate charges.

Consequently, the Court held that the original representative charge was not framed properly, and the additional charges could not be treated as deriving from it. The Court concluded that Judge Rzepecky had the authority to direct that the additional charges should not be accepted for filing. Since the Court lacks jurisdiction to hear an appeal against a s 26(3) direction, Claydon's application for leave to appeal was declined.

Orders