Deliu v Attorney-General - [2025] NZSC 78

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 8/2025
[2025] NZSC 78

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	ATTORNEY-GENERAL First Respondent DEPUTY SOLICITOR-GENERAL Second Respondent

Court:	Williams, Kós and Miller JJ
Counsel:	Applicant in person D L Harris and A A A Ghandour for the Respondents
Judgment:	8 July 2025

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B The applicant must pay the respondent costs of $2,500.
____________________________________________________________________

REASONS

Background

In 2017 and 2018, the applicant was charged with two counts of assault with a weapon and one of attempting to pervert the course of justice. He left the country in 2018 and has not returned. Between 2020 and 2022, the applicant twice requested that those proceedings be stayed as they were, he claimed, the result of serious police misconduct.[1] The Deputy Solicitor-General acting under delegation from the Attorney-General (pursuant to ss 9A and 9C of the Constitution Act 1986) declined to do so on each occasion.
[1]See Deliu v Attorney-General [2023] NZHC 1159 (Harvey J) at [11]–[14].
The applicant brought judicial review proceedings challenging both the delegation and the refusal. The challenge was on natural justice and substantive grounds. His application was dismissed in the High Court and the Court of Appeal and he now applies for leave to appeal against the decision of the latter Court.
The detailed factual and procedural history is set out in the judgments of the courts below and it is unnecessary to repeat much of that detail here.
In the High Court, Harvey J considered that the courts should exercise restraint in reviewing the exercise of prosecutorial discretion including decisions regarding stays,[2] that the applicant had no right to be heard prior to the stay decision being made, and that, in any event, the reasons given by the Deputy Solicitor-General for her decision were sufficient to the purpose.[3] The applicant appealed, but before the appeal could be heard the Deputy Solicitor-General considered the matter for a third time, and on this occasion agreed that the prosecution should, in all the circumstances, be stayed. The applicant pressed on with his appeal.
[2]At [72] and [77].
[3]At [95] and [85].
The Court of Appeal found that the appeal had become moot and dismissed it.[4]
[4]Deliu v Attorney-General [2024] NZCA 697 (Goddard, Katz and Cooke JJ) [CA judgment].
The applicant’s three grounds of appeal are that the Court of Appeal erred in that decision by:
(a)ruling the appeal was entirely moot;
(b)refusing to resolve an important and novel question of law, even if the appeal was moot; and/or
(c)not addressing his position and demonstrating bias in favour of the Crown.
The applicant submits that, despite the stay, his appeal is not entirely moot as he seeks a declaration that his natural justice rights, protected by s 27 of the New Zealand Bill of Rights Act 1990, were breached in the earlier decisions. He submits that, despite the second respondent’s finding in his…

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 Deliu v Attorney-General

Details

AGLC: Deliu v Attorney-General [2025] NZSC 78
Case: [2025] NZSC 78
Decision Date: 8 July 2025

CaseChat Overview and Summary

In the case of Deliu v Attorney-General, the applicant, Francisc Catalin Deliu, sought leave to appeal a decision of the Court of Appeal which dismissed his appeal against the refusal to stay criminal proceedings against him. Deliu was charged with assault with a weapon and attempting to pervert the course of justice in 2017 and 2018. After leaving the country in 2018, he sought to have the proceedings stayed on the basis of alleged police misconduct. The Deputy Solicitor-General declined these requests, and Deliu brought judicial review proceedings. His application was dismissed in both the High Court and the Court of Appeal. Deliu now seeks leave to appeal against the Court of Appeal's decision. The legal issues before the Court were whether the Court of Appeal erred in finding the appeal entirely moot, in refusing to resolve an important and novel question of law, and in not addressing Deliu's position and demonstrating bias in favour of the Crown. The Court found that there was no risk of a substantial miscarriage of justice if the appeal was not heard, as Deliu had achieved the result he sought, and any further relief would have served no useful purpose. The Court also found that the application of a Hansen analysis to prosecutorial discretion was not appropriate in this context, and that there was no basis for finding bias. The application for leave to appeal was dismissed, and Deliu was ordered to pay costs of $2,500.

The Court of Appeal found that the appeal had become moot as Deliu had achieved the result he sought, and the applicant sought a declaration that his natural justice rights had been breached. The Court found that the appeal was moot as Deliu had achieved the result he sought, and any further relief, including a declaration, would have served no useful purpose. The Court also found that the applicant's argument that the doctrine of judicial restraint in respect of prosecutorial discretion was inconsistent with the approach in Hansen v R was untenable, and that there was no basis for finding bias. The Court dismissed the application for leave to appeal, and ordered Deliu to pay costs of $2,500. The Court of Appeal's decision was upheld, and Deliu's appeal was dismissed.

Orders