Deliu v Attorney-General
[2023] NZHC 3695
•14 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-108
[2023] NZHC 3695
UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908 IN THE MATTER OF
proceedings moving for an application for judicial review, a writ, a bill of rights claim and a petition for declaratory relief
BETWEEN
FRANSISC CATALIN DELIU
Applicant
AND
ATTORNEY-GENERAL
Respondent
Hearing (by VMR): 18 September 2023 Appearances:
Applicant in person
D Harris for the Respondent
Judgment:
14 December 2023
JUDGMENT OF GAULT J
(Application for judicial review)
This judgment was delivered by me on 14 December 2023 at 2:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
The Applicant
Ms D Harris, Crown Law, Wellington
DELIU v ATTORNEY-GENERAL [2023] NZHC 3695 [14 December 2023]
[1] Mr Deliu seeks judicial review in relation to certain actions of prosecutors at the firm of the Auckland Crown Solicitor in relation to two charges of attempting to pervert the course of justice.1
Factual background
[2] In early 2017, the Police laid two charges of assault with a weapon against Mr Deliu. The charges were scheduled to be tried before a jury in the week of 22 January 2018. Given Court availability issues that week, a callover was scheduled.
[3] Mr Deliu states that by December 2017 he and his family received repeated death threats, in addition to being stalked and followed. He claims that the Police refused to investigate or protect them and as a result in January 2018 he and his family left New Zealand fearing for their lives. Consequently, Mr Deliu was unable to attend the scheduled callover. A warrant was issued for his arrest.
[4] On 25 April 2018, Mr Flanagan of Meredith Connell, the firm of the Auckland Crown Solicitor, emailed Mr Deliu stating:
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 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.
1 The proceeding named “The Crown” as respondent, which has been amended to the Attorney-General in accordance with s 14 of the Crown Proceedings Act 1950.
[5] Mr Deliu states that the real purpose of this email was to deter him from returning to New Zealand.
[6] On 27 April 2018, the Police laid the two charges of attempting to pervert the course of justice (the charges) against Mr Deliu in the District Court at Auckland. The charges alleged that:
(a)between 28 November 2016 and 9 December 2017, Mr Deliu wilfully attempted to pervert the course of justice by pressuring a witness in a manner designed to dissuade her from co-operation with Police or seeking independent counsel; and
(b)between 30 September 2016 and 27 June 2017, Mr Deliu wilfully attempted to pervert the course of justice by pressuring another witness in a manner designed to dissuade her from cooperation with Police.
[7] Mr Deliu states that no one tried to serve him with any summons to appear and as a matter of law he was never under any legal obligation to answer the charges.
[8] On 2 May 2018, the charges were first called in the District Court. Mr Clark from Meredith Connell appeared as counsel representing the Police. Mr Deliu did not appear. That same day, a warrant was issued for Mr Deliu’s arrest on the basis that his summons could not be served.
[9] On 17 May 2018, Mr Deliu had a telephone conversation with a Police detective, Mr Flanagan and Mr Clark. Mr Deliu states that in that conversation Mr Flanagan sought to have him plead guilty to the charges and to one of the earlier assault charges. Mr Deliu says that he had not been served with the charges nor any evidence in support and that he had no legal representation at the meeting. Mr Deliu says that according to an allegation that Mr Flanagan had made in the District Court in February 2018 he was unfit to stand trial and by implication unfit to plead. Mr Deliu
states this conduct was “reprehensible-in-the-extreme” prosecutorial misconduct which is the subject of separate proceedings.2
[10] On 13 July 2018, Mr Flanagan (for the Crown Solicitor at Auckland) signed two Crown Prosecution Notices under s 189 of the Criminal Procedure Act 2011 (CPA) advising that on 24 May 2018 the Crown assumed responsibility for the prosecution of the charges. Mr Deliu states that he has never been served with those notices.
[11] On 17 July 2018, the Crown filed a Crown Charge Notice dated 13 July 2018 purporting to amend the charges. Mr Deliu states that he has never been served with this document.
[12]In summary, Mr Deliu states that in relation to the charges:
(a)he has never appeared in the matter, nor entered a plea to the charges;
(b)the charges have never been adjourned for any trial callover, transferred to this Court nor been subject to a case review hearing; and
(c)he has never elected a trial by jury, and the Crown has never sought to try him before a Judge alone, in absentia or otherwise.
Grounds of review
[13] In his statement of claim dated 8 February 2022, Mr Deliu pleads three causes of action:
(a)Breach of statutory duty – Mr Flanagan’s involvement as counsel for the Police prior to the laying of the charges and/or Mr Clark’s involvement as counsel for the Police at the first hearing meant that they could not later independently act as Crown counsel in respect of
2 This conversation has also been the subject of complaints by Mr Deliu to the Police and Crown Law. His Police complaint has been the subject of separate judicial review proceedings determined by Davison J: Deliu v Flanagan [2022] NZHC 2621.
the charges, and that in doing so they violated s 193 of the CPA which constituted a breach of the statutory duty of independence.
(b)Ultra vires – the Crown’s involvement on 25 April 2018, 2 May 2018, 17 May 2018, after 24 May 2018 and especially on 17 July 2018 in purporting to amend the charges was ultra vires. Mr Deliu claims that the Crown could not – as a matter of law – assume responsibility to prosecute the charges under the CPA or the Crown Prosecution Regulations 2013.
(c)Breach of natural justice – the involvement of Mr Flanagan and Mr Clark – and therefore of Meredith Connell and the then Crown Solicitor, Mr Dickey – on 25 April 2018, 2 May 2018, 17 May 2018 and/or after 24 May 2018 constituted a violation of Mr Deliu’s right to natural justice.
Mr Deliu seeks the following relief:
(a)judgment against the Crown;
(b)a writ of prohibition under s 16 of the Judicial Review Procedure Act 2016 that Meredith Connell and Mr Dickey, Mr Flanagan and Mr Clark are debarred from acting for the Crown in the matters involving the charges;
(c)a direction that the Registrar refer this judgment to the Solicitor- General in relation to the conduct of Meredith Connell, Mr Dickey, Mr Flanagan and Mr Clark in acting for both the Police and the Crown;
(d)a declaration that Meredith Connell, Mr Dickey, Mr Flanagan and Mr Clark breached Mr Deliu’s rights under s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA);
(e)an order quashing the amendments to the charges; and
(f)costs.
Procedural history
Judgment of Wylie J
[15] This proceeding came before Wylie J. Before the hearing, he sought submissions as to whether it was an abuse of process for Mr Deliu to raise what seemed to be substantially the same issues in multiple proceedings. At a hearing on 5 December 2022, Wylie J ordered that the proceeding be stayed (among other things). Wylie J’s reasons dated 7 December 2022 addressed the potential overlap between this proceeding and a separate proceeding that had been heard by Brewer J.3 Wylie J considered there was a risk of overlap between the proceeding before Brewer J that was awaiting decision and the matters which Mr Deliu was asking the Court to consider in this proceeding. The most appropriate course was to stay the present proceeding until 21 working days after Brewer J’s decision.4
Judgment of Brewer J
[16] The proceeding before Brewer J was brought against the Attorney-General and the Police. Mr Deliu challenged the processes and decisions by which the charges of assault with a weapon and attempting to pervert the course of justice were brought and by which they had been maintained. The relief sought included a declaration that the defendants had breached Mr Deliu’s right to natural justice, quashing the decisions and processes under review, an order or injunction enjoining the prosecutors from proceeding with the charges and a direction that the defendants and others apologise to Mr Deliu for their misconduct towards him.
[17] In a judgment dated 15 March 2023, Brewer J decided that Mr Deliu’s claims could not succeed. In short, the Courts would 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. Brewer J considered that
3 Deliu v Attorney General HC Auckland CIV-2021-404-1803.
4 Deliu v R [2022] NZHC 3268 at [32].
this was a high threshold to cross and Mr Deliu’s claims did not come close to doing so.5
[18] Brewer J considered that, even assuming that Mr Deliu was correct in saying that Police were prejudiced and motivated against him, the operative decision to proceed with the charges was made by the Crown Solicitor in 2022.6
[19] In relation to an allegation of bad faith against Mr Flanagan relating to the telephone conversation of 17 May 2018, Brewer J said there simply was no evidence of mala fides and that the pleading in respect of Mr Flanagan was in substance a collateral attack on Davison J’s decision.7
[20]I understand that Mr Deliu has appealed against Brewer J’s decision.
Preliminary issue
[21] At the outset of the hearing before me, Mr Deliu submitted that the Crown’s amended submissions ought not to be read on the basis that the Crown could not assert res judicata, issue estoppel or abuse of process in reliance on the judgment of Brewer J. There was no amended defence and no material from that proceeding before the Court.
[22] Ms Harris, for the Crown, acknowledged that the Crown did not seek to rely on res judicata or issue estoppel. She accepted that this proceeding did not sit squarely with the proceeding determined by Brewer J, the overlap was insufficient and Brewer J’s judgment did not ‘drill down’ into the specific issues raised in this proceeding. I proceed on that basis.
Breach of statutory duty
[23] Mr Deliu submitted that Crown prosecutors have a duty of independence, whereas Meredith Connell solicitors, when acting for the Police, are ‘hired guns’ without the same duties that apply when the Crown assumes responsibility for the prosecution of charges. Mr Deliu submitted that there is a conflict where counsel have
5 Deliu v Attorney General [2023] NZHC 512 at [6].
6 Deliu v Attorney General [2023] NZHC 512 at [19].
7 At [24]-[26].
acted for the Police and then act for the Crown and that he was denied his right to an independent review.
[24]Section 193 of the CPA provides:
Independence of Solicitor-General and Crown prosecutors
The Solicitor-General and every Crown prosecutor must, in conducting a Crown prosecution, act independently of the agency from which the Solicitor-General or Crown prosecutor assumed responsibility for the prosecution.
[25] Mr Deliu submitted that a conflict arises in every case where any Meredith Connell lawyer acts for the Police or other prosecution agency before the Crown assumes responsibility for the prosecution. In those circumstances, he submitted an out of region Crown prosecutor must be appointed.
[26] Mr Deliu also relied on clause 4 of the Solicitor-General’s Prosecution Guidelines (Prosecution Guidelines), which provide:8
4.1The universally central tenet of the prosecution system under the rule of law in a democratic society is the independence of the prosecutor from persons or agencies that are not properly part of the prosecution decision-making process.
4.2In practice in New Zealand, the independence of the prosecutor refers to freedom from undue or improper pressure from any source, political or otherwise. All government agencies should ensure the necessary processes are in place to protect the independence of the initial prosecution decision.
[27] These Prosecution Guidelines are issued under s 185 of the CPA as part of the Solicitor-General’s oversight role in relation to public prosecutions.
[28] Section 193 of the CPA and these Prosecution Guidelines emphasise the required independence of a prosecutor. However, Mr Deliu’s claim is misconceived. Section 193 applies to Crown prosecutors after they have assumed responsibility for a prosecution. It does not follow that lawyers from a Crown Solicitor’s office have no duty of independence when appearing for or advising a prosecuting agency such as the Police.
8 Crown Law Office Solicitor General’s Prosecution Guidelines (1 July 2013).
[29] As Ms Harris submitted, the Cabinet Directions for the Conduct of Crown Legal Business 2016 (Cabinet Directions)9 which include as a core Crown legal matter the enforcement of the criminal law by the Police, the Terms of Office for Crown Solicitors,10 and the Prosecution Guidelines all anticipate and expect that Crown Solicitors and their prosecutors may be called upon to provide advice to, and appear in litigation for, the Police in a criminal proceeding. It is not uncommon for Crown Solicitors or their prosecutors to appear on behalf of the Police in the early stages of a prosecution, prior to the Crown’s assumption of responsibility for the prosecution. As Ms Harris submitted, in doing so they retain their independence as a representative of the Crown and represent the Crown’s interests in the prosecution more generally. Although the prosecuting agency remains the decision-maker prior to a Crown Solicitor assuming responsibility, counsel involved in the prosecution decision-making process before charging, or acting for the Police in a prosecution before the Crown assumes responsibility, act in the capacity as agent or officer of the Crown and are subject to the Prosecution Guidelines. Clause 2.1 of the Prosecution Guidelines provides that all public prosecutions and Crown prosecutions, whether conducted by Crown prosecutors, government agencies or instructed counsel, should be conducted in accordance with the Guidelines.
[30]Also, clauses 28.1 and 28.2 of the Prosecution Guidelines provide:
28.1Crown prosecutors appear in the criminal courts in two distinct capacities, namely on instructions from the person or government agency who commenced the proceeding or, in respect of Crown prosecutions, as the Crown’s representative.
28.2When acting on instructions, the Crown prosecutor is instructed in that capacity as an agent or officer of the Crown and should still act in accordance with the applicable guidelines. While Crown prosecutors are expected to consult closely with and take into account the views of the investigator or officer in charge of the case on all significant matters, it is also the Law Officers’ expectation that government agencies who commence proceedings will follow the advice of the Crown prosecutor as to the nature of the charges and conduct of the prosecution.
[31] The Crown’s interests in the proceeding continue if and when the Crown assumes formal responsibility for the prosecution. There is no inherent conflict of
9 Cabinet Office Cabinet Directions for the Conduct of Crown Legal Business (30 March 2016).
10 Crown Law Office Crown Solicitors: Terms of Office (May 2021).
interest between a lawyer advising the Police (before or after prosecution) and advising the Crown upon the Crown’s assumption of responsibility for the prosecution because Crown Solicitors and their prosecutors represent the Crown’s interests whether the Police is responsible for the prosecution or the Crown has assumed responsibility. Indeed, the Terms of Office for Crown Solicitors provide that they and their prosecutors will not act against the Crown in any prosecution or against Police on any legal work unless granted dispensation by the Solicitor-General.11
[32] As Mr Deliu submitted, the Crown’s policy documents could not overcome a breach of statutory duty. However, they are consistent with my view that s 193 does not preclude Crown Solicitors or their prosecutors appearing on behalf of Police in the early stages of a prosecution prior to the Crown’s assumption of responsibility for the prosecution, and then acting for the Crown.
[33] For these reasons, there was no breach of the statutory duty of independence when the Crown (through the then Crown Solicitor, Mr Dickey) assumed responsibility for Mr Deliu’s prosecution in relation to the charges.
Ultra vires
[34] Under this ground of review as well, Mr Deliu submitted that the actions of Mr Flanagan and Mr Clark prior to 24 May 2018 compromised and conflicted them such that Meredith Connell and Mr Dickey could not fulfil the role of an independent Crown prosecutor. This is misconceived for the reasons already addressed.
[35] In the alternative, Mr Deliu submitted that Mr Flanagan and Mr Clark could only have been counsel for the Police in the first instance as there is no statutory provision that allows for Crown counsel to act prior to the statutory timeframes in s 187 of the CPA. He submitted on this basis too that the steps taken from 24 May 2018 onwards are nullities.
11 Crown Law Office Crown Solicitors: Terms of Office (May 2021) at [16].
[36]Section 187 provides:
187 Assumption of responsibility for Crown prosecutions by Solicitor-General
(1)The Solicitor-General must assume responsibility for and conduct every Crown prosecution from the time or stage in the proceedings prescribed in regulations.
(2)The Solicitor-General’s duty under subsection (1) may be performed by any Crown prosecutor.
(3)The Solicitor-General may specify in any proceeding the Crown prosecutor who is to conduct the prosecution.
(4)Subsection (2) is subject to subsection (3).
(5)No Crown prosecution in invalid only because the Crown –
(a)did not assume responsibility for a prosecution in accordance with regulations made under this Act; or
(b)assumed responsibility for a prosecution for which it should not have assumed responsibility.
[37] Mr Deliu submitted that none of the timeframes in the relevant regulations, the Crown Prosecution Regulations 2013, applies and therefore the Crown could not as a matter of law assume responsibility to prosecute the charges. He submitted that the Crown must not assume responsibility earlier than these prescribed timeframes.
[38] Mr Deliu also referred to s 189 of the CPA, which provides that when a Crown prosecutor assumes responsibility for a Crown prosecution in accordance with s 187, he or she must file a notice in the Court. He submitted that it follows the Crown has never had the statutory power to assume responsibility for the prosecution.
[39] In addition, Mr Deliu challenged the Crown Charge Notice purporting to amend the charges on the basis that the notice periods in reg 6 also do not apply. He submitted the charges should be quashed.
[40] Mr Deliu is correct that the prescribed timeframes do not yet apply in relation to the charges. Regulation 4 provides that certain proceedings are Crown prosecutions for the purposes of subpart 2 of Part 5 of the CPA, that is ss 185 to 193. This includes, under reg 4(1)(b), a proceeding for an offence of attempting to pervert the course of
justice. In relation to the prescribed “time or stage” for the purposes of s 187, reg 5 relevantly states:
5 Time for assuming responsibility for Crown prosecutions
The Solicitor-General must assume responsibility for proceedings that are Crown prosecutions under regulation 4 as follows:
…
(b)for a proceeding referred to in regulation 4(1)(b), from the time that the proceeding is adjourned following the entry of a plea:
…
[41] Mr Deliu has not entered a plea. However, as Ms Harris submitted, the statutory requirement to assume responsibility from the prescribed stage does not preclude an earlier assumption of responsibility by the Crown. Ms Harris advised that it is not uncommon for the Crown to assume responsibility for a prosecution at an earlier stage. Further, the Crown Solicitor and his prosecutors did not need statutory authority to accept instructions from the Police when they did. They did so in accordance with the expectations set out in the documents referred to above.
[42]The ultra vires claim is not made out.
Breach of natural justice
[43] Mr Deliu submitted that the roles of acting as counsel for the Police and as Crown counsel are manifestly inconsistent. Rather than an advocate for a party with a duty to advance its interests, he submitted the role of a prosecutor is more nuanced as the goal is not to seek a conviction but rather justice, citing the Supreme Court decision in R v Stewart.12 He accepted, however, that Police prosecutors and employees of Crown solicitor’s firms acting as prosecutors owe this duty.
[44] As indicated above, lawyers from a Crown Solicitor’s office when appearing for or advising the Police do so in the capacity as agent or officer of the Crown and are subject to the Prosecution Guidelines. These roles are not inconsistent.
12 R v Stewart [2009] NZSC 53, [2009] 3 NZLR 425.
[45] In relation to Mr Deliu’s claim that he was denied his right to an independent review, Ms Harris submitted that the effect of reg 4 is that proceedings for offences described in that regulation are ‘Crown prosecutions’ from the outset despite the deadline for assuming responsibility in reg 5 and so no further independent review is required when the Crown Solicitor assumes formal responsibility for a prosecution. Whether or not it is correct that counsel were acting as ‘Crown prosecutors’ before then, s 193 of the CPA does not mandate a specific further independent review by a different Crown prosecutor when the Crown Solicitor assumes formal responsibility for a prosecution. I acknowledge that clause 9.3 of the Prosecution Guidelines states that when a Crown prosecutor assumes responsibility for a Crown prosecution, he or she should undertake an independent review of the charges. I expect this means a review independent from the prosecuting agency rather than a review by a different Crown prosecutor if one has already been involved and thus undertaken an earlier review. Insofar as a review is expected when the Crown Solicitor assumes formal responsibility for a prosecution, the amendment in the Crown Charge Notice dated 13 July 2018 refining the charges indicates that there was some review.
[46] Further, I do not consider that s 27 of NZBORA applies here. Section 27(1) provides that:
Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
[47] As Ms Harris submitted, the counsel concerned were advocates and not in a position where they were making determinations in respect of Mr Deliu’s rights, obligations, or interests protected or recognised by law. I do not accept Mr Deliu's submission that counsel’s “decisions” to continue with the charges or not to amend them further are such determinations within the scope of s 27(1). Mr Deliu has not demonstrated any such breach by the Crown.
Result
[48]The application for judicial review is dismissed.
[49] The respondent is entitled to costs. If costs cannot be agreed, I will receive memoranda not exceeding three pages within 20 working days and determine costs on the papers.
Gault J
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