Deliu v Attorney-General

[2023] NZHC 1159

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-2472

[2023] NZHC 1159

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, writs, civil and Bill of Rights Act claims and a petition for declaratory

relief

BETWEEN

FRANCISC CATLIN DELIU

Plaintiff/Applicant

AND

ATTORNEY-GENERAL

First Defendant/Respondent

DEPUTY SOLICITOR-GENERAL (CRIMINAL)

Second Respondent

Hearing:

21, 22 June 2022

Appearances:

F C Deliu Plaintiff/Applicant in Person

D Harris for the First Defendant, First and Second Respondent

Judgment:

15 May 2023

JUDGMENT OF HARVEY J

This judgment is delivered by me on 15 May 2023 at 4.45 pm

pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:           Crown Law, Wellington Plaintiff:      F Deliu

DELIU v ATTORNEY-GENERAL [2023] NZHC 1159 [15 May 2023]

Contents

Introduction[1]
Judicial review (2472 proceeding)[3]

The claim[8]

Background[10]

Was the Attorney-General’s delegation decision unlawful?[23]

Mr Deliu’s submissions[23]
Attorney-General’s submissions[30]

Legal principles[36]

Discussion[39]

Was the Deputy Solicitor-General’s decision unlawful?[47]

The claim[47]

Mr Deliu’s submissions[48]

Deputy Solicitor-General’s submissions[55]

Legal principles[67]

Power to stay[67]

Amenability to review and judicial restraint[70]

Discussion[77]

Decision[99]

Introduction

[1]                  This judgment determines one of two related judicial review applications filed by Francisc Deliu.1 The first concerns Mr Deliu’s endeavours to have his criminal charges stayed (“2472 proceeding”). He seeks a review of the decision of the Attorney-General to forward his request to the Crown Law Office and the (reconsidered) decision of the Deputy Solicitor-General to refuse his request for a stay of prosecution.

[2]                  The second judicial  review  application  concerns  a  phone  call  between  Mr Deliu and Mr Flanagan, a Crown prosecutor, on 17 May 2018. Mr Deliu seeks review of Crown Law’s decision to reject his complaint relating to Mr Flanagan and Mr Dickey (“348 proceeding”). That application is dealt with in a separate judgment.

Judicial review (2472 proceeding)

[3]                  Mr Deliu faces two sets of criminal charges that have been outstanding since 2017/2018: two charges of assault with a weapon and two charges of attempting to

1      A previous decision was issued determining the Attorney-General’s strike-out application in CIV- 2021-404-390 which was heard concurrently: Deliu v District Court at Auckland [2023] NZHC 658.

pervert the course of justice.2 Since 2020 he has attempted via numerous pathways to have these charges stayed.

[4]                  On 18 October 2020, Mr Deliu wrote to the Attorney-General and asked him to stay proceedings. The Attorney-General advised he had transferred the request to the Crown Law Office. Mr Deliu objected to, and seeks to review, this approach.

[5]                  On 22 October 2020, the Deputy Solicitor-General refused to grant  a stay. Mr Deliu and counsel for the Deputy Solicitor-General reached a settlement position whereby the Deputy Solicitor-General would reconsider the decision. She did so on 11 March 2022, confirming that she would not be staying the charges against him.

[6]Mr Deliu seeks…