Deliu v Attorney-General - [2023] NZHC 512

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1803

[2023] NZHC 512

UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990, Declaratory Judgments Act 1908, the common law and equity

IN THE MATTER

of proceedings moving for an application for judicial review, writs, Bill of Rights claims and a petition for declaratory relief

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

NEW ZEALAND POLICE

Second Respondent

Hearing: 28 November 2022 (via VMR)

Appearances:

Applicant in person

T G H Smith for Respondents

Judgment:

15 March 2023

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 March 2023 at 3 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:
Crown Law (Wellington) for Respondents

DELIU v THE ATTORNEY-GENERAL [2023] NZHC 512 [15 March 2023]

Introduction

[1] Mr Deliu faces two charges of assault with a weapon and two charges of attempting to pervert the course of justice. He does not want to stand trial on the charges.1 He wants them to go away. To that end he challenges, through judicial review, the processes and decisions by which the charges were brought and by which they have been maintained.2

[2]The relief Mr Deliu seeks is:

I. Judgment against the defendants;

II.Baigent’s relief in the form of a Declaration that the defendants have violated the plaintiff ’s human right to natural justice in contravention of § 27 of the New Zealand Bill of Rights Act 1990 and/or declaratory relief in the form of a Declaration that Deliu has been denied a fair and impartial investigation into alleged criminality and/or prosecution of the charges;

III. A Ruling quashing the decisions and processes under review;

IV.An Order for a Writ of Prohibition or in the alternative an Injunction enjoining the prosecutors from proceeding with the charges;

V.A Direction that the first defendant, second defendant, Jordan, Holland, Chapman, McKenzie, Dickey and/or Flanagan apologize to Deliu for their misconduct towards him; and/or

VI. Such other relief as seen fit by this Honourable Court.

Background

[3] The background to this case is largely set out by Davison J in Deliu v Flanagan.3 The case before Davison J was for judicial review of decisions by the Police:

(a)to dismiss a complaint by Mr Deliu regarding the actions of Detective Sergeant Antony McKenzie in causing a border alert to be put in place

1      See Deliu v The Auckland District Court [2023] NZHC 164 at [155]. Justice Harvey declined Mr Deliu’s application to judicially review the District Court’s decision to not proceed to trial in Mr Deliu’s absence.
2      Mr Deliu is now resident in the United States of America. The charges are therefore lying in Court and warrants for Mr Deliu’s arrest are active. He previously held a practising certificate and practised in New Zealand as a barrister and solicitor. He represents himself in this proceeding.
3      Deliu…

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.

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Details

Case: [2023] NZHC 512
Decision Date: 15 March 2023

CaseChat Overview and Summary

The case of Deliu v Attorney-General involved an application for judicial review by Mr. Deliu, who faced charges of assault with a weapon and attempting to pervert the course of justice. Mr. Deliu sought various forms of relief, including a declaration that his rights under the New Zealand Bill of Rights Act 1990 had been violated, an order quashing certain decisions, and an injunction to prevent the prosecution from proceeding. The legal issues in the case centered on whether the Court should interfere with the prosecutorial discretion to bring and continue charges, and whether there was evidence of wrongdoing warranting such intervention.

The Court found that the prosecutorial discretion to bring and continue charges is generally not subject to judicial review unless there is clear evidence of wrongdoing, such as evidential insufficiency. The Court emphasized that the criminal jurisdiction provides all necessary powers to ensure a fair trial and that challenges to the prosecution should typically be addressed through the trial and appeal process. The Court further noted that the operative decision to proceed with the charges was made by the Crown Solicitor, who had reviewed the case against the prosecution guidelines.

Mr. Deliu's claims, including allegations of bias, conflict of interest, and bad faith, did not meet the high threshold required for judicial review. The Court found no credible evidence of wrongdoing by the police or the Crown Solicitor and concluded that Mr. Deliu's rights had not been breached. Consequently, the Court dismissed all claims and ordered that the respondents were entitled to costs, to be decided on the papers.

Orders