Deliu v Attorney-General - [2023] NZHC 3695

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…

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 [2023] NZHC 3695
Case: [2023] NZHC 3695
Decision Date: 14 December 2023

CaseChat Overview and Summary

The applicant, Mr Deliu, sought judicial review of the Crown's actions in relation to two charges of attempting to pervert the course of justice. The court considered whether the Crown's actions constituted a breach of statutory duty, were ultra vires, or breached natural justice. Mr Deliu argued that the involvement of certain solicitors in both the Police's and the Crown's cases created a conflict of interest and violated his right to an independent review. The court found that the solicitors, while representing the Police, were still acting in the capacity as agents of the Crown and were subject to the Prosecution Guidelines, which emphasise the independence of the prosecutor. The court held that there was no breach of statutory duty or natural justice, and the Crown's actions were not ultra vires. The application for judicial review was dismissed, and the respondent was entitled to costs.

Orders