Deliu v Attorney-General - [2024] NZSC 108

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 62/2024
[2024] NZSC 108

BETWEEN	FRANCISC CATALIN DELIU Applicant
AND	ATTORNEY‑GENERAL Respondent

Court:	Ellen France, Kós and Miller JJ
Counsel:	Applicant in person D L Harris for Respondent
Judgment:	6 September 2024

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

Introduction

The applicant has filed an application for leave to appeal from a decision of the Court of Appeal declining an application for review of the Deputy Registrar’s decision not to waive security for costs.[1] Security for costs was set in the amount of $7,060 in relation to the applicant’s appeal from a decision of the High Court declining the applicant’s judicial review claim.[2]

Background

[1]Deliu v Attorney-General [2024] NZCA 236 (Cooke J) [CA judgment].

[2]Deliu v Attorney‑General [2023] NZHC 3695 (Gault J) [HC judgment].

The applicant’s claim for judicial review in the High Court challenged the actions of prosecutors at the Auckland Crown Solicitor’s office (the Crown Solicitor’s office) in relation to two charges of attempting to pervert the course of justice.[3] These two charges were laid by the police in the District Court at Auckland prior to the first call on 2 May 2018. Subsequently, on 13 July 2018, the Crown assumed responsibility for the prosecution of the charges.
[3]These charges and two other associated charges have now been stayed by the Deputy Solicitor‑General: R v Deliu CRI-2017-004-1442, 18 July 2024 (Notice of Stay of Proceeding).
There were three causes of action pleaded in the judicial review proceedings: breach of statutory duty, ultra vires and breach of natural justice. The essence of the complaint underpinning these claims is that the involvement of the prosecutors in the Crown Solicitor’s office as counsel at both the stages we have mentioned — namely, when the prosecution was under the auspices of the police and subsequently when the Crown assumed responsibility — meant that the duty of independence applicable to Crown prosecutors was not met.
Various orders were sought by way of relief including a direction that the judgment be referred to the Solicitor‑General in relation to the conduct of the Crown Solicitor’s office and the relevant prosecutors, a declaration of a breach of s 27 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), and an order quashing amendments that had been made to the charges.
In deciding that there was no merit in the claim, the High Court discussed s 193 of the Criminal Procedure Act 2011, which imposes a duty of independence on the Solicitor-General and Crown prosecutors in the conduct of Crown prosecutions. There was also discussion of cl 9.3 of the Solicitor-General’s Prosecution Guidelines which provides that when a Crown prosecutor assumes responsibility for a prosecution, an “independent review of the charges” should be undertaken.[4] The High Court found that these provisions did not mean that there was no…

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 [2024] NZSC 108
Case: [2024] NZSC 108
Decision Date: 6 September 2024

CaseChat Overview and Summary

The Supreme Court of New Zealand has dismissed an application for leave to appeal from a decision of the Court of Appeal declining an application for review of the Deputy Registrar’s decision not to waive security for costs. The applicant, Francisc Catalin Deliu, sought to appeal from the Court of Appeal's decision regarding his claim for judicial review of actions taken by the prosecutors at the Auckland Crown Solicitor's office in relation to charges of attempting to pervert the course of justice. The applicant's claims were that the prosecutors' involvement at different stages of the proceedings breached their duty of independence and violated the New Zealand Bill of Rights Act 1990. The Court of Appeal had found that the applicant's appeal did not have sufficient merit to warrant waiving security for costs.

The primary legal issue before the Supreme Court was whether the Court of Appeal had correctly applied the principles set out in Reekie v Attorney-General regarding the application for leave to appeal and the requirement for security for costs. The applicant argued that the Court of Appeal had failed to properly consider the novelty of the issues raised in the appeal and had not adequately addressed the breach of the Bill of Rights. The Court considered whether the appeal presented a question of general or public importance or if there was an appearance of a miscarriage of justice in the application of the relevant principles.

The Supreme Court found that the Court of Appeal had correctly applied the principles from Reekie to the facts of the case. The novelty of the appeal did not alter the outcome since the principles in Reekie were correctly applied. The Court also concluded that there was no appearance of a miscarriage of justice in the application of these principles. The Court of Appeal had appropriately weighed the merits of the appeal against the need for security for costs, finding that the applicant's claims were not central to his interests and that the appeal involved an element of vexatiousness.

The Supreme Court therefore dismissed the application for leave to appeal and ordered the applicant to pay the respondent's costs of $2,500. The decision underscores the importance of the principles established in Reekie in determining the appropriateness of waiving security for costs in appeals of this nature.

Orders