Deliu v Attorney-General
[2023] NZHC 512
•15 March 2023
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 v Flanagan [2022] NZHC 2621.
to have Mr Deliu detained upon arrival at a New Zealand point of entry; and
(b)not to investigate a complaint he made that Mr Flanagan and a Police Investigator had conspired to and/or attempted to defeat the course of justice in the course of a telephone conversation they had with Mr Deliu on 17 May 2018.
[4] Justice Davison dismissed Mr Deliu’s claims for judicial review and relief. I respectfully adopt his Honour’s description of the background:
[15] As noted, in February 2017, the Police charged the applicant with two charges of assault with a weapon relating to an incident which was alleged to have occurred on 20 January 2017 at the premises of the law firm, Amicus Law.4 The hearing of the charges was initially scheduled to take place in the Auckland District Court during the week commencing 22 January 2018, however that fixture was vacated by the Court because other court matters also scheduled for hearing that day meant that it was unlikely that a judge would be available to hear it. The matter was accordingly placed in a callover list on 22 January 2018. Having recently departed New Zealand, the applicant did not appear before the District Court on 22 January and the presiding Judge excused his attendance, and ordered a judicial telephone conference to review progress with the matter on 13 February 2018.
[16] Mr Flanagan, who is a partner at the Auckland Crown Solicitor’s law firm, Meredith Connell, was representing the Police in relation to the applicant’s matter. The applicant’s counsel in relation to the assault with a weapon charges was Dr Tony Ellis, although the applicant was also self- represented in correspondence and communications between himself and the Auckland Crown Solicitor. In the period between January 2018 and 13 February 2018, the applicant and Mr Flanagan exchanged emails regarding the Police investigation into the applicant’s actions including in relation to witnesses the Police wished to interview in connection with suspected criminal offending. Dr Ellis was copied in to the email correspondence.
[17] In April 2018 the Police laid two charges of attempting to pervert the course of justice against the applicant. Detective Holland was the officer in charge of that prosecution.
[18]On 26 April 2018 Mr Flanagan sent an email to the applicant. He said:
Dear Mr Deliu
We have now considered the assertion of privilege in the document in question. Putting to one side the factual basis for your assertions, we consider that s 67 of the Evidence Act may be engaged. We consider that the email may have been sent to improperly dissuade Mr Wu and
4 Footnote omitted.
Ms Shi (and other recipients) from speaking to the Police about the incident in question in circumstances where they were free to do so.
The Police will shortly charge you (likely today) with two counts of attempting to pervert the course of justice pursuant to s 117(e) of the Crimes Act 1961, one charge for your course of conduct against Mr Wu (including this email) and one for your course of conduct against Ms Shi (also including this email). The Police will make an application under s101 of the Criminal Procedure Act (CPA) for directions as to the admissibility of the document in the context of that proceeding, given your claim for privilege. In the meantime, the email will be held separately on our file and that of the Police marked as subject to a claim of privilege, and we will advise Mr Wu’s counsel to do the same. We are not aware of other parties that might hold the email.
For completeness, once the charges have been filed we will seek a warrant to arrest in lieu of service under s34 of the CPA, which will lie at the border. That is done given your absence from New Zealand and stated intention not to return.
Yours faithfully Nick Flanagan
[19] On 2 May 2018 Police laid two charges against the applicant of attempting to pervert the course of justice. The charges arose from an investigation being conducted by the Police into an alleged forgery, and from allegations that the applicant had applied pressure on a witness not to co- operate with the Police investigation. The charges were presented and filed by Detective Holland. Meredith Connell with Mr Flanagan acting, represented the Police. The charges were filed in the Auckland District Court and as the applicant was no longer in New Zealand a summons could not be served on him and a warrant to arrest was sought by the Police and obtained. The charges laid on 2 May 2018 remain active.
[20] On 17 May 2018 a prearranged telephone call took place between the applicant and Mr Flanagan. Detective Holland was present with Mr Flanagan. Prior to the 17 May telephone call, Mr Flanagan and the applicant had spoken on the telephone and had exchanged emails. On 14 May 2018 Mr Flanagan sent an email to the applicant in which he said:
Dear Frank
Further to our brief telephone call on Friday afternoon, I email regarding your request for a without prejudice discussion. You will recall that you asked if I was prepared to have such a discussion and I said I would not speak to you without a witness present but would reflect on the position. I have now done so.
I am willing to have a without prejudice discussion with you, with a witness present and an audio recording made. If you wish to have such a discussion, please reply to this email with some suggested times.
Yours faithfully Nick Flanagan
[21]The applicant replied some 15 minutes later. He said:
Hi Nick,
Nice to hear from you. I am glad that you are willing to proceed.
I certainly have no problem with an objective audio-recording made by you nor a witness present, although for the avoidance of doubt, the discussion would be protected by [s] 57 of the Evidence Act 2006 to allow us both to discuss freely and candidly, and neither of us would be able to use what is talked about in any way, shape or form in any venue. I trust you would agree with this.
My intention is to see if we can amiably resolve our personal matters, i.e., my complaint and lawsuit against you, and, if possible, other disputes I am involved in with your clients the New Zealand Police (including staff) and Crown.
Can I suggest my Wednesday evening/your Thursday morning? I am flexible with the time, so whatever suits you best.
Look forward to our chat,
Frank
[22] Then some hours later on 14 May 2018 the applicant sent Mr Flanagan another email in which he said:
Re: Without Prejudice discussion [MC-DMS.FID567206]
FYI, ahead of our chat I provide the ATTACHED in strict confidence.
[23]Mr Flanagan responded:
Frank
I have not opened the attachment to your email because we have not agreed the terms of any discussion nor the terms of my receiving it.
We are aware of the provisions of s57 of the Evidence Act. Obviously whether that section is triggered in any given case depends on what is discussed, in the usual way. In particular that proceeding (sic) expressly refers to civil proceedings and you are also party to criminal proceedings.
If this is accepted, please confirm. Otherwise I will delete your latest email and attachment unread.
Yours faithfully Nick Flanagan
The applicant replied:
Hi Nick, 57(2A)?
Anyway, the privilege covers ancillary communications such as our e- mails and attachments as long as they are “any communication” (“or document”) for settlement negotiations or plea discussions.
So, I take the view that the privilege already attaches, but if you want further clarification of the terms let me know and I will prepare a draft agenda for your consideration.
Thanks,
Frank
[25]Mr Flanagan replied in turn:
Frank
Thanks for the clarification you intend to discuss the criminal proceedings in terms of s57(2A). For my part I need your express confirmation you accept the second sentence of my second paragraph below before I can open the document you have sent or have a without prejudice discussion.
Yours faithfully Nick Flanagan.
[26]The applicant responded:
Hi Nick,
I confirm that whether [s] 57 is triggered in any given case depends on what is discussed, in the usual way.
Let me know what time your Thursday suits you so that I may diarise.
Frank
[27]Then after Mr Flanagan had sent the applicant an email proposing
10.00 am on Thursday that week for the telephone call, the applicant sent Mr Flanagan a further email saying:
Fine by me, but I have no landline and the cell service here tends to be choppy so I intend to call you on a Skype subscription so can you please let me know what landline number you prefer?
…
Finally, in the interests of full candour, I may also have a witness present and/or record the call; subject of course to my prior undertaking not to use it in any other forum (even if somehow [s] 57 does not apply).
Look forward to our talk,
Frank
[28] The telephone conversation between the applicant and Mr Flanagan on 17 May 2018 then took place as planned. It was recorded and a transcript was prepared and produced as an exhibit. It reads:5
5 Note: irrelevant “ums” and “uhs” appearing in the transcript are not included.
Flanagan:On the criminal case, the reason I was anxious to be clear about the basis for which you said that this conversation would be privileged was of course the section applies to a plea deal, I think you’ve [sic] fairly proposing one in relation to the assault and that is something we can reflect on, but you’re not of course proposing anything in relation to the other charges and they’re much more serious charges so I don’t think you can have a realistic expectation that the Crown will accept no proposal in relation to those charges. Is that clear enough?
Deliu:Yes, well I guess the only thing that I would, is that the only thing you have to say?
Flanagan:Well it seems to me that the one constructive conversation we could have is the civil proceeding and whether that can be ended on, a, the basis that there is no costs sought by the Police. I don’t have instructions as to that, but that would seem to me to be a pragmatic outcome that I could probably recommend given that you are offshore and there would be real difficulty in enforcing any costs order and the reality is that it might be impossible to do so.
Deliu: Okay, well.
Flanagan:So that’s, that’s the proposal I think we should discuss on the civil case, you haven’t made a proposal on the criminal one, but if you’d like to make one I’m happy to discuss it.
Deliu:All right well I guess two points in relation to your three points. You definitely won’t ever get a dollar in costs I, I, assure you of that. You don’t understand how Romania works, you don’t understand how Europe works and clearly you don’t understand how my brain works, you, you will never get a dollar, but go ahead and try, that’s perfectly fine, it’ll, it’ll be a good lesson. And as to the proposal to the other charges I find it quite striking that you’d want me to make a proposal to charges that I haven’t even been served with, it’s yet another indication, I think, that this is all a bit farcical so I don’t really think we need to explore it further because I can’t possibly make a proposal to charges that I don’t even know what they are, and so on that basis …
Flanagan: It’s not true Frank, we’ve told you what you’ve been
charged with.
Deliu:Okay, you want me to make a proposal on your e- mail. Yes Flanagan I will plead guilty to your e-mail. Okay, there’s my proposal.
Flanagan: Okay. So, you will plead guilty to three charges. Deliu: Okay, so I will write you back and I will tell you that
I am pleading guilty to your e-mail and you take that
further, you take that to the District Court as my plea. Okay, so I am happy to proceed that way.
Flanagan:The proposal is that you will plead guilty to two counts of attempting to pervert the course of justice because that’s a discussion we can have.
Deliu:No, no I’ll plead guilty to your e-mail because that’s all I know, so, sure, I’ll absolutely plead guilty to your e-mail.
Flanagan:No, my question was are you proposing to plead guilty to two counts of attempting to pervert the course of justice because that’s what you’re charged with.
Deliu:Nick, I don’t know a single fact, I can’t believe, and I’m trying to be courteous here so I’ll restrain myself, but I can’t believe that you seriously think that I would offer to plead guilty to charges where I don’t even know what the facts are, I mean, with respect, even in Stalinist Russia they at least told the person what they were charged with in detail. So if you seriously …
Flanagan: We have told you what you’re charged with in detail.
Deliu: Okay, no, okay, then I …
Flanagan:I am very happy to on a without prejudice basis discuss the basis of the charges with you Frank so you can assess whether or not you want to make a plea, that would fall within the terms of the Evidence Act.
Deliu: And, and you don’t think that I should be entitled to a
…
Flanagan: But it has to be expressly on the basis you’re
considering a plea.
Deliu:Well I can’t consider a plea until I know the evidence can I? I would have thought this was basic law school stuff if I’m not mistaken.
Flanagan:No, you can consider a plea based on what the charges are and what you already know of them and if you are considering that then I am happy to have a further discussion with you about the basis for it.
Deliu:No, no, that’s, that’s, that’s absolutely not going to happen. So, okay Nick I guess we’ll just [inaudible] with each other for the next decade, so thanks for that.
Flanagan: No problem, cheers.
Deliu: Take it easy.
[5] On 6 October 2020, Mr Deliu wrote to the Minister of Police and the Commissioner of Police asking them to cause all the charges against him to be withdrawn. Eventually, on 4 March 2022, the Crown Solicitor at Auckland (Mr Dickey) advised his decision to continue with the charges. Mr Deliu at once sought reconsideration of the matter and for Mr Dickey to recuse himself. On 24 March 2022 Mr Dickey declined both requests.
Outcome
[6] I have decided that Mr Deliu’s claims cannot succeed. In short, the Courts will not interfere with the exercise of the prosecutorial discretion to bring and continue charges, other than on the ground of evidential insufficiency, without clear evidence of wrongdoing which requires as a condign response that the charges be stayed or struck out. That is a high threshold to cross and Mr Deliu’s claims do not come close to doing so.
[7] The Police have laid the charges, the prosecutions are now in the hands of a Crown Solicitor, the Crown Solicitor has reviewed them against the Solicitor- General’s prosecution guidelines, and he has decided that they should proceed. As I will come to, that is enough to decide this case against Mr Deliu.
Discussion
[8] I will start with the seminal decision of Moevao v Department of Labour.6 This was a case where a person convicted of an offence appealed on the ground that those who initiated the prosecution had improperly exercised their discretion to do so. The appeal required the Court to consider its power to stay a prosecution and the legal basis for the power. Justice Richardson concluded his discussion with these passages:7
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its
6 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 481–482.
7 At 481–482.
inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.
…
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.
…
The twin problems of an absence of objectively ascertainable standards and the relative unfamiliarity of the Courts with the weighing of all the considerations which may bear on the exercise of prosecutorial responsibility require the Courts to tread with the utmost circumspection. While the Court must be the master and have the last word, it is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a Court would ever be justified in intervening.
[9] The Courts are also reluctant to allow those accused of crimes to use the civil judicial review jurisdiction to challenge charges by attacking the processes or decisions by which they were brought. There are a number of reasons for this, including that the criminal jurisdiction confers on a Court all the powers necessary to ensure a trial is fair and to prevent a prosecution abusing the process of the Court. Further, the criminal jurisdiction provides that all allegations of unfairness or abuse of process can be fully examined through the calling of evidence.
[10] There is a valuable discussion of this point by Randerson J (then in the High Court) in Polynesian Spa Ltd v Osborne.8 In that case an Occupational Safety and
8 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC).
Health Service Inspector investigated the death of a woman at the applicant company’s complex. He wrote a report recommending that the company be prosecuted for failure to take all practicable steps to ensure the safety of the deceased and the company was subsequently charged. The company challenged the report, the recommendation and the laying of the charge by application for judicial review.
[11] Justice Randerson accepted that the impugned steps taken by the inspector involved the exercise of a statutory power or statutory power of decision and so the judicial review jurisdiction was engaged. But “[t]he real question is whether and, if so, in what circumstances, a Court of review may interfere with the exercise of the relevant powers.”9
[12]Justice Randerson then summarised the law:
[61] Traditionally, the courts have shown a marked reluctance to interfere with the exercise of a discretion to prosecute. In some cases, it is said that such powers are not reviewable at all.
[62] There are a number of sound reasons for the Courts’ reluctance to interfere:
(a)It is important that the proper constitutional boundaries be observed. The discretion to prosecute on behalf of the state is a function of executive government rather than the courts whose function is to ensure the proper and fair conduct of trials: Fox v Attorney-General [2002] 3 NZLR 62 at [31]. See also Police v Hall [1976] 2 NZLR 678, 673 (CA) and R v Sang [1980] AC 402, 454 (HL).
(b)Criminal proceedings should not generally be subject to collateral challenge. Entertaining challenges of this kind outside the trial and appeal process is likely seriously to disrupt the criminal justice system: R v Director of Public Prosecutions, ex parte Kebilene [1999] 4 All ER 801, 834 per Lord Steyn.
(c)As noted in Fox in the same passage, decisions to initiate and continue prosecutions generally involve a high content of judgment and discretion in the decisions reached.
(d)Where a prosecution ensues, the courts possess an inherent power to stay or dismiss a prosecution for abuse of process. Fox reviewed the principles upon which a court may act to protect against such an abuse.
9 At [60].
(e)The conclusion on behalf of a prosecuting authority that an offence has been committed is merely an expression of opinion which is capable of being challenged in court: R v Sloan [1990] 1 NZLR 474, 478.
(f)If factual errors are made in an investigation by a prosecuting authority or if there is further or other material which a defendant considers ought to have been weighed by the prosecuting authority, there is an opportunity to explore and test such issues at trial and to bring such further evidence as the defendant sees fit.
…
[68] In summary, where a decision to prosecute has been taken, there is jurisdiction to entertain a challenge on judicial review. But it will only be in rare cases that any such challenge will be successful for the substantial policy and constitutional reasons reviewed in paragraph [62] above. Ordinarily, matters which may have afforded grounds for judicial review in other contexts are properly addressed by the court exercising jurisdiction at trial. Those powers include jurisdiction to stay or dismiss for abuse of process or to allow time for any defects in disclosure to be remedied. Importantly, issues of law, fact or opinion may be fully ventilated at trial with full opportunity to test the prosecution case and to adduce such evidence as the defendant sees fit.
[13] I respectfully adopt Randerson J’s discussion because, in my view, it sets out the law as it applies today.
[14] Applying the principles to the case before him, Randerson J dismissed the application for judicial review. His Honour’s view was that the matters raised by the company were either not susceptible to review or should properly be determined by the Court in which the prosecution was to be conducted.
[15]I will consider Mr Deliu’s claims against this legal background.
[16]Mr Deliu’s first cause of action is:
53.In breach of natural justice and in violation of § 27 of the New Zealand Bill of Rights Act 1990, the Police was actually or apparently biased and/or acted in conflict-of-interest when various officials were involved in investigating and charging Deliu.
[17] Mr Deliu complains that the police officers who laid the charges and other officers involved with the investigations should not have been involved in any investigation or process involving himself. That is partly because he had laid
complaints with the Independent Police Conduct Authority against several of the police officers and had taken civil legal action against others.
[18] The officers who laid the charges, Detective Jordan and Detective Holland, have provided affidavits setting out their roles and describing the processes which led to the charges being laid. Mr Deliu has also provided affidavit evidence.
[19] Even assuming that Mr Deliu is correct in saying that the police were prejudiced against him, and even if there were actual conflicts of interest, that would not be enough to give him the relief he seeks. Not only does the alleged conduct fail to establish wrongdoing which would require, on a judicial review, charges to be struck out, they are a matter of historical interest only. That is because the operative decision to proceed with the prosecutions is the decision of the Crown Solicitor, Mr Dickey, made in 2022.10
[20]Mr Deliu’s second cause of action is:
54.In the alternative, but also in breach of natural justice and in violation of § 27 of the New Zealand Bill of Rights Act 1990, the
Crown and/or Police have acted in bad faith against Deliu.
[21] Mr Deliu points to two occasions in which he sued the police and individual police officers. He succeeded in the first.11 The second lawsuit was settled and Mr Deliu pleads that the police gave him an apology and monetary damages. As a result, Mr Deliu pleads that the prosecutions have been exercised for collateral motivations, unrelated to proper criminal justice purposes, being for revenge and to deter him from returning to New Zealand.
10 Mr Deliu submits that the term “operative decision” is not known to the law. That is wrong. See, for example, DE v Chief Executive of the Ministry of Social Development [2007] NZCA 453 at [19]; and DGN v Auckland District Court [2015] NZHC 3338, [2018] NZAR 137 at [15] and [36], DGN v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [8].
11 Deliu v New Zealand Police [2020] NZHC 2506 at [273]–[274], [292] and [295]–[300]. Mr Deliu succeeded in obtaining relief for arbitrary detention under s 22(b) of the New Zealand Bill of Rights Act 1990. He was awarded $3,000 in public law compensation; a declaratory order that he had been arbitrarily detained; and a court-ordered apology from the defendant. On appeal, in New Zealand Police v Deliu [2022] NZCA 328, the Court of Appeal set aside the orders for damages and court-ordered apology.
[22] There is no credible evidence that the Crown and/or the Police have acted in bad faith. But even if individual police officers did not like Mr Deliu and were motivated to investigate his actions accordingly, that would not be sufficient to cause the Court, on judicial review, to strike out charges. Not only do investigators not have to act in accordance with natural justice,12 but the operative decision to proceed with the charges was made by Mr Dickey in 2022.
[23] A further particular (presumably going to the pleading of bad faith by the Crown) relates to the telephone conversation of 17 May 2018 quoted at [4] above. Mr Deliu pleads:
C. Flanagan, and therefore the defendants, acted mala fides in seeking to obtain guilty pleas from Deliu to one of the assault charges and both perversion charges.
[24] There is simply no evidence of mala fides. This is an improper pleading and should not have been made. Further, the allegations, in substance, were raised in the proceeding before Davison J:
[64] The applicant submits that during the telephone conversation he had with Mr Flanagan and Detective Holland on 17 May 2018, Mr Flanagan sought to have him plead guilty to the two charges of attempting to pervert the course of justice. He says that this took place in circumstances in which: he had not been served with the charges; he had not been served with any prosecution evidence in support of the charges; he was not legally represented; and despite Mr Flanagan having several months ago previously asserted that the applicant was unfit to enter pleas to some other charges he was facing.
[65] The applicant submits that Mr Flanagan’s invitation to him to plead guilty to the perversion charges amounted to prosecutorial misconduct. He says the situation was exacerbated and more serious because he was unrepresented by counsel during the telephone conversation and because Mr Flanagan appeared to have considered that he had been mentally unwell. He says that it is clearly improper for a prosecutor to seek guilty pleas from a defendant who had not been served with the charges or provided with disclosure of the prosecution evidence supporting the charges.
[66]The applicant submits that:
… Flanagan’s extortive attempt to have me plead guilty in such egregious circumstances, on Holland’s instructions, rises to the level of criminal conduct on their part.
12 See, for example, White v Attorney-General [2020] NZHC 740 at [62].
[25] Justice Davison decided that Mr Deliu failed to establish any of the pleaded grounds of review.13
[26] I consider that the pleading in respect of Mr Flanagan is in substance a collateral attack on Davison J’s decision. I have read Davison J’s analysis and I have considered it against the issues raised by Mr Deliu in the current proceeding. I respectfully agree with Davison J’s analysis and I reach the same conclusion.
[27] Mr Deliu further claims that the charges of perverting the course of justice were also brought against a Mr Richard Zhou whose alleged culpability is “materially identical” to that of Mr Deliu. However, the charges against Mr Zhou have been withdrawn. Mr Deliu alleges that this is disproportionate treatment contravening the parity principle.
[28] I disagree. A decision to withdraw charges against one defendant can be made for many reasons. There is no rule that if charges are withdrawn against one defendant then they must be withdrawn against a co-defendant.
[29] There is nothing in this pleading which would cause a Court, on judicial review, to strike out charges.
[30]Mr Deliu further pleads:
55.If the Court declines jurisdiction on the first cause of action and does not find bad faith on the second cause of action, then, alternatively, the Police created a legitimate expectation that they would reconsider the charging decisions and failed to do so.
[31] There is no legitimate expectation in this case that would cross the high threshold for judicial review of prosecutorial decisions. In any event, there was a review and it was carried out by Mr Dickey.
[32]Mr Deliu then impugns Mr Dickey’s actions:
13 Deliu v Flanagan, above n 3, at [123].
56.In the alternative to the third cause of action, Dickey’s first purported decision was in breach of natural justice and in violation of § 27 of the New Zealand Bill of Rights Act 1990.
[33] None of the particulars given by Mr Deliu in his pleadings go anywhere close to establishing his pleading. It is enough to reproduce them without comment:
PARTICULARS
A.De minimis Dickey did not have the power to reconsider the perversion charges as the Crown has never been lawfully seized of that prosecution and so he acted without authority.
B.Alternatively, and on the expression assumption arguendo that Dickey had the power to make the decision, he purported to apply the Solicitor-General’s Prosecution Guidelines 2013 but the issue before him was not whether to lay, but rather whether to withdraw, charges and so the test was inappropos.
C.Dickey failed to: give reasons, disclose the respective 3 February 2021 Beard and 25 February 2022 Detective Superintendent Begbi reports for comment and/or recuse so thereby acted with actual or apparent bias against Deliu and/or had one or more conflicts-of-interest.
FURTHER AND BETTER PARTICULARS
I.Deliu had an active New Zealand Law Society (“NZLS”) complaint pending against Dickey;
II.Deliu had an extant complaint with the Office of the Ombudsmen against the Crown Law Office over allegations against Dickey and Flanagan;
III.Deliu had extant civil proceedings against Flanagan and other partners of Dickey’s at Meredith Connell;
IV.Deliu had extant NZLS complaints against Flanagan and other partners of Dickey’s at Meredith Connell;
V.Deliu had extant civil proceedings against the Crown alleging that Dickey illegally took over carriage of the perversion charges;
VI.In these proceedings, on 22 February 2022 Justice Hinton recused herself because Deliu had an extant complaint against her with the Office of the Judicial Conduct Commissioner and Justice Gordon recused herself because Deliu had previously made complaints against her with the New Zealand Law Society so Dickey failed to apply a standard that two Justices of this Honourable Court applied.
[34] Mr Deliu further pleads:
57.In the alternative to the third cause of action, Dickey’s second decision was in breach of natural justice and in violation of § 27 of the New Zealand Bill of Rights Act 1990.
[35] The particulars given are in much the same vein as quoted above. There is no evidence that Mr Dickey did anything other than carry out his duty as a Crown Solicitor.
[36]Mr Deliu pleads further:
58.The New Zealand criminal justice system lacks an independent, centralized decision-making agency to only conduct prosecutions making the defendants’ actions, as lawyer-client, ultra vires.
[37] New Zealand’s criminal justice system is lawful and is based on statute and constitutional convention. This pleading is frivolous.
[38]Finally, Mr Deliu pleads:
59.To the extent that Deliu is being prosecuted for his conduct acting as counsel and over which advice he gave, or steps he took, concerning his clients’ right to remain silent he is immune from prosecution by either the first or second defendants.
[39] This is an issue which, if it is necessary to do so, must be decided by the Court hearing the charges following an evaluation of the relevant evidence.
Decision
[40] In writing this decision I have avoided engaging with the detail of Mr Deliu’s pleadings and submissions. There would be no point in doing so. As my references to Moevao v Department of Labour and to Polynesian Spa Ltd v Osborne illustrate, Mr Deliu has failed to appreciate the restricted role of judicial review when it comes to decisions to bring charges and to continue with them.
[41] Mr Deliu’s rights have not been breached. He is not entitled to the relief he seeks. I dismiss his claims.
[42] The respondents are entitled to costs. The respondents are to file their memorandum within 10 working days of the date of delivery of this judgment.
Mr Deliu may respond within 10 working days of service of the respondents’ memorandum. Service on Mr Deliu may be effected by email to the address used by him in his filings and correspondence with the registry.
[43]I will decide costs on the papers.
Brewer J
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