Crockett v Christchurch International Airport Limited

[2022] NZHC 435

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-7

[2022] NZHC 435

IN THE MATTER OF

Criminal Procedure Act 2011

BETWEEN

ERROL GRAEME CROCKETT

Applicant

AND

CHRISTCHURCH INTERNATIONAL AIRPORT LIMITED & OTHERS

Respondents

Hearing:

On the papers

Appearances:

Applicant in Person

K H Cook for Respondents

Judgment:

11 March 2022

JUDGMENT OF MANDER J

[1]    Mr Errol Crockett applied to the District Court at Christchurch to commence a private prosecution against Christchurch International Airport Ltd (the Airport) and its board of directors and management team. He alleged various offences under the Crimes Act 1961, including perjury, conspiring to defeat justice, obtaining by deception, accessing a computer system for a dishonest purpose, and numerous charges alleging the use of forged and altered documents with intent to deceive.1

1      The following charges were alleged: Section 108 – perjury; s 113 – fabricating evidence; s 116 – conspiring to defeat justice; s 240 – obtaining by deception or causing loss by deception; s 249 – accessing computer system for dishonest purpose; s 250 – damaging or interfering with a computer system; s 256 – forgery; s 257 – using forged documents; s 258 – altering, concealing, destroying or reproducing documents with intent to deceive; s 259 – using altered or reproduced document with intent to deceive; s 310 – conspiring to commit offence; and s 312 – being an accessory after the fact to crime.

CROCKETT v CHRISTCHURCH INTERNATIONAL AIRPORT LIMITED [2022] NZHC 435 [11 March 2022]

[2]    The registrar referred the proposed charges to Judge Neave, under s 26 of the Criminal Procedure Act 2011, in order for him to make a decision as to whether the charges should be accepted for filing. Judge Neave determined the proposed charging document was deficient and should not be accepted for filing, and Mr Crockett’s application to commence a private prosecution was declined.

[3]    Mr Crockett now seeks to appeal that decision. However, the proposed defendants have taken issue with the purported appeal. They argue there is no right to appeal a decision of a District Court Judge declining to accept a charging document for filing. They submit the appropriate course is for Mr Crockett to make an application for judicial review.2 Submissions were filed in support of this objection and Mr Crockett, in accordance with my direction, has filed submissions in response.

Background to proposed private prosecution

[4]    Mr Crockett’s proposed private prosecution arises from a motor vehicle collision that occurred while he was in the employ of a rental car company and resulted in the termination of his employment. For the purposes of bringing a personal grievance in the Employment Court, Mr Crockett sought a copy of CCTV footage from the Airport. After viewing this footage, Mr Crockett concluded the video had been altered by the proposed defendants and that it depicts a separate collision involving someone other than himself.

District Court decision

[5]    The commencement of a private prosecution is governed by s 26 of the Criminal Procedure Act (the Act):

26       Private prosecutions

(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)accept the charging document for filing; or

(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements,

2      Mitchell v Tyson [2016] NZHC 2210, [2016] NZAR 1545.

that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)the proposed prosecution is otherwise an abuse of process.

(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—

(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)retain a copy of the proposed charging document.

(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

[6]    Judge Neave identified two questions for his determination as to whether a charging document for a proposed private prosecution should be accepted for filing:

(a)whether the evidence the prosecutor relies on is insufficient to justify a trial; and

(b)the proposed prosecution is otherwise an abuse of process.

[7]    The charging document filed by Mr Crockett in the District Court alleged a raft of offences against the Airport and its “Directors and Management Team”. Judge Neave found the proposed charging document effectively amounted to a nullity, not only because it purported to allege 11 different offences in the one document but also because it purported to charge numerous persons, including the Airport’s “management team”, which has no corporate identity and is unrecognisable as a legal entity. In addition to the purported charging document being bad for duplicity, other

deficiencies were identified by the Judge which, in combination, led to the inevitable conclusion that the document could not be accepted for filing.

[8]    While the application to commence a private prosecution would have to be declined on that basis alone, the Judge, for completeness, comprehensively reviewed whether there was sufficient evidence to proceed with the charges as alleged. It is not necessary, for the purposes of determining whether this Court has jurisdiction to entertain an appeal, to review the evidential deficiencies in the proposed charges identified by the District Court. I simply record Judge Neave found there was an insufficient evidential basis on the material supplied by Mr Crockett for any of the proposed charges he sought to bring against the proposed defendants. Accordingly, it was found the application to commence the private prosecution would also fail for want of evidential sufficiency.

The purported appeal

[9]    Mr Crockett filed a “Notice of General Appeal” seeking to challenge the District Court’s rejection of his charging document. He purported to rely upon ss 220 and 221 of the Act for the purposes of bringing his appeal. Those provisions concern first appeals brought under subpart 2 of the Act which governs appeals against pre- trial decisions.   However, the right to  bring a pre-trial appeal is circumscribed by   ss 215, 217 and 218. The decisions listed in those sections from which an appeal may lie do not include a decision by a District Court Judge directing that a charging document must not be accepted for filing under s 26(3).

Discussion

[10]   Rights of appeal in criminal proceedings are governed by the Act and, in the absence of Mr Crockett being able to point to an avenue of appeal available to him under the Act, this Court has no jurisdiction to hear an appeal from the District Court’s decision not to accept a charging document for the purpose of commencing a private prosecution. A similar issue arose in Mitchell v Tyson, where an unsuccessful applicant attempting to commence a private prosecution sought to appeal the District Court’s refusal to accept her charging documents for filing. In that case, reliance was placed

on s 296 of the Act as the relevant provision conferring an appeal right. That provision provides:

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.

[11]   Clark J found that the reliance on this provision fell at the first hurdle because s 296 is premised on a criminal proceeding having been commenced and a person having been charged with an offence. Section 14 of the Act provides that a criminal proceeding in respect of an offence is commenced by the filing of a charging document. It followed that, where no such document had been filed, there can be no proceeding. Because the charging document had not been accepted for filing, it could not be said anyone had been charged with an offence. After reviewing the meaning of the term “charged” and the varying approaches taken in a number of cases that had considered that issue,3 the Judge concluded:4

… whether one is charged at the time a summons is served under s 33 of the Criminal Procedure Act — which I consider to be the correct position — or at some other point, the fact is that in this case the charging documents were not filed. Therefore even on an analysis which takes the earliest possible time of charging as being when the charging documents are filed, there has been no

3      R v Taylor HC Hamilton T66/91, 24 February 1992; R v Lory (No 8) [1997] 1 NZLR 44; and R v Gibbons [1997] 2 NZLR 585.

4      Mitchell v Tyson, above n 2, at [37].

filing and therefore, in terms of s 296 no “person has been charged with an offence”.

[12]   Despite Mr Crockett acknowledging that rights of appeal in criminal proceedings are governed by the Act, he argued that an appeal should be available and contended that in the present situation he ought to be able to commence a general appeal that will enable the appeal court to arrive at its own assessment of the merits of the private prosecution. However, Mr Crockett was unable to identify any provision that provided him with a right to appeal the District Court’s decision. A “general appeal” is available to a defendant but only to one who is convicted of an offence.5 No such appeal is available to a prosecutor who is limited to the prescribed rights of appeal set down in the Act. His submission that an appeal should be available unless there are factors that would make such an appeal inappropriate is simply unsupportable.

[13]   Mr Crockett endeavoured to distinguish Mitchell v Tyson on the basis it did not involve matters “that would bring the whole justice system into dispute”, which I understand he asserts to be the situation in the present case. Similarly, he argued there was no suggestion in Mitchell v Tyson that any false evidence had been created, as he claimed is the position here. However, any such attempts to differentiate that case on the basis of varying factual allegations do not address the requirement on him to bring his purported appeal within the provisions of the Act. He cannot do so because there is no right bestowed on an unsuccessful applicant seeking to bring a private prosecution to challenge a judge’s determination that a charging document should not be accepted for filing.6

[14]   It is recognised that such decisions can be challenged by way of judicial review. That is the appropriate remedy in this situation, and one the purported defendants acknowledge is a course available to Mr Crockett.

5      Criminal Procedure Act 2011, s 229(1).

6      Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR 489 at [2] and [36].

Result

[15]   There being no right of appeal available to Mr Crockett under the Act, the Court is without jurisdiction. It follows that the purported notice of appeal filed by Mr Crockett from the District Court’s decision is of no legal effect.