Deliu v Auckland District Court
[2024] NZCA 39
•4 March 2024 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA129/2023 [2024] NZCA 39 |
| BETWEEN | FRANCISC CATALIN DELIU |
| AND | AUCKLAND DISTRICT COURT |
| Hearing: | 31 October 2023 |
Court: | Wylie, Mander and Muir JJ |
Counsel: | Appellant in Person |
Judgment: | 4 March 2024 at 11 am |
Reissued: | 4 March 2024 |
JUDGMENT OF THE COURT
AThe appeal is allowed in part.
BThe District Court’s directions the subject of proceeding CIV-2021-404-449 are quashed and the matters the subject of those directions are remitted back to the District Court for reassessment in accordance with this judgment.
CThe appeal is otherwise dismissed.
D There is no order for costs or disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
The appellant, Francisc Deliu, is presently the subject of two separate prosecutions. Relevantly he currently resides overseas. On 20 April 2021, Judge E P Paul in the District Court at Auckland directed that various applications filed by Mr Deliu in respect of the prosecutions were not to be heard until he answers warrants issued for his arrest.[1] This direction has had the effect of indefinitely adjourning the prosecutions unless and until Mr Deliu returns to the jurisdiction.
[1]R v Deliu DC Auckland CRI-2018-004-3571, 20 April 2021 [minute of Judge Paul (20 April 2021)].
In two separate proceedings, Mr Deliu applied to judicially review:
(a)Judge Paul’s direction of 20 April; and
(b)other procedural rulings made by the District Court in the course of the criminal proceedings.
Mr Deliu sought a range of remedies, including declarations that his rights to be tried without undue delay and to natural justice had been breached.
Both proceedings were considered by Harvey J in the High Court at Auckland. Other than in respect of one ground, Harvey J dismissed the review applications and declined to grant Mr Deliu relief.[2] Mr Deliu has appealed this decision.
Background
[2]Deliu v Auckland District Court [2023] NZHC 164 [judgment under appeal].
In February 2017, Mr Deliu was charged with two charges of assault with a weapon. He instructed counsel, pleaded not guilty and elected trial by jury.
In July 2017, in the course of dealing with an application to extend interim name suppression, a dispute arose between Mr Deliu and the presiding Judge — Judge Collins — regarding Mr Deliu’s apparent use of a cell phone in court. As a result, Mr Deliu made an oral application that the Judge recuse himself. The Judge declined to recuse himself.[3]
[3]R v Deliu DC Auckland CRI-2017-004-1442, 5 July 2017 [decision of Judge Collins (5 July 2017)].
At a subsequent call-over in September 2017, Judge Collins allocated a five‑day trial to commence in the week of 22 January 2018, although with the caveat that the matter might not be reached on that date.
In October 2017, Mr Deliu applied for various orders, including for the recusal of certain District Court judges who had dealt with his matters and the debarment of the firm of the Auckland Crown Solicitor from further dealing with the matter.
On 10 October 2017, at a further call-over, the trial date in January 2018 was confirmed.
On 10 January 2018, Mr Deliu filed an affidavit seeking to be tried in absentia and to have the proceedings adjourned indefinitely. He said that he had received threats and expressed fears for himself and his family if he remained in this country. He also expressed concern over what he said was the failure by the police to provide appropriate protection for him and his family. He left New Zealand at or about this time.
On 16 January 2018, Judge M B Sharp declined Mr Deliu’s recusal applications noting that she was (at that time) rostered to preside at the trial and that she did not appear to be included in the applications.[4] The debarment application was treated as having been withdrawn, because it had become clear that the prosecutor Mr Deliu was concerned about was not going to appear on the matter.
[4]R v Deliu [2018] NZDC 522 [judgment of Judge Sharp (16 January 2018)] at [3].
On 17 January 2018, Judge Collins advised the parties that it was unlikely that the trial would be able to proceed on 22 January 2018 given other matters set down for hearing in the District Court. The fixture was accordingly vacated and the proceedings were placed in a call-over on 22 January 2018 so that a new trial date could be set. At that call-over, counsel for Mr Deliu advised that his client had left New Zealand. Judge Collins excused Mr Deliu’s appearance and allocated a new trial date for 16 April 2018. On 12 February 2018, the Crown advised that it agreed to Mr Deliu being tried in absentia.
In the period leading up to the new trial date, concerns were raised regarding Mr Deliu’s fitness by both the Crown and by his counsel.
There was a hearing before Judge Gibson in March 2018 to deal with claims of privilege over documents seized by the police under a search warrant executed at offices associated with Mr Deliu. Mr Deliu was not a party to this proceeding, but he did try to enter an appearance. His request to do so was declined by Judge Gibson on 5 April 2018.[5]
[5]R v Shi [2018] NZDC 6450.
On 11 April 2018, Mr Deliu’s counsel applied for the trial (allocated for 16 April 2018) to be adjourned and for consideration to be given to the engagement of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP). This resulted in the assigned judge, Judge Sinclair, requesting the attendance of a forensic psychiatrist on 16 April 2018 to assist in deciding whether the CPMIP procedures should be invoked.[6] When the matter was before Judge Sinclair on that date, she observed that proceeding in Mr Deliu’s absence would have been a viable option but for the issue raised as to his fitness to stand trial.[7] Consideration was given as to how best to proceed, including whether to use the hearing time to conduct an inquiry into Mr Deliu’s involvement in the physical acts constituting the alleged offence, as contemplated by the CPMIP as it stood at that time.[8] However, the Judge determined that this course was not available to her in Mr Deliu’s absence.[9] Any further assessment of him could not be completed remotely and the Judge considered that she needed further information about Mr Deliu’s mental state before invoking the CPMIP procedures. Because of the apparent impasse the Judge saw little point in adjourning the trial because, in her view, the then current situation was unlikely to change while Mr Deliu remained overseas.[10] Accordingly, the Judge issued a warrant for Mr Deliu’s arrest.[11] Both the Crown and Mr Deliu’s counsel agreed that this was a step available to the Judge under the Bail Act 2000,[12] albeit a course Mr Deliu’s counsel argued was somewhat harsh given the Crown’s previous agreement that Mr Deliu could be tried in his absence.
[6]R v Deliu DC Auckland CRI-2017-004-1442, 13 April 2018.
[7]R v Deliu DC Auckland CRI-2017-004-1442, 16 April 2018 [minute of Judge Sinclair (16 April 2018)].
[8]Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9. This section was repealed on 14 November 2018 by s 126 of the Courts Matters Act 2018.
[9]Minute of Judge Sinclair (16 April 2018), above n 7, at [11].
[10]At [12].
[11]At [13].
[12]Bail Act 2000, s 37(1)(b)(ii).
Towards the end of that same month, Mr Deliu was charged with two unrelated offences of attempting to pervert the course of justice. In early May 2018, at the first call of this matter, Mr Deliu failed to appear. Judge Treston issued an arrest warrant for him.
Several months later, in August 2018, Mr Deliu’s counsel was granted leave to withdraw on all matters.
Over the course of the following two years, Mr Deliu, who has remained overseas, acted for himself. He filed various memoranda and applications regarding his criminal proceedings, including, in July 2020, an application to have the charges against him dismissed or stayed.
In February 2021, Mr Deliu was advised by the District Court that his application for dismissal or stay had been set down for hearing on 6 July 2021. Mr Deliu then applied to the Court for a witness summons to secure the attendance of a named Crown prosecutor for the purpose of giving evidence at the pre-trial hearing. This application came before Judge Paul, who, on 12 March 2021, directed that no summons be issued. The Judge recorded his reasoning for exercising his discretion:[13]
… on the basis that while the defendant applicant remains a fugitive from justice, given there are outstanding warrants for his arrest, it is not in the interest of justice that a witness summons is issued. Until such time as the defendant presents himself before the court.
[13]See judgment under appeal, above n 2, at [27] for discussion of Judge Paul’s direction (emphasis added).
The following month, on 20 April 2021, Judge Paul issued a further minute.[14] The Judge vacated the 6 July 2021 hearing and directed that, until Mr Deliu answered his warrants, his application to dismiss or stay his charges, together with the other applications he had filed (including an application that the Judge recuse himself) were not to be heard and determined. Judge Paul observed as follows:
[8] It is not in the interest of justice for this Court to either accept or decline Mr Deliu's applications at this point in time. The reason for this is Mr Deliu has stated repeatedly that he has no intention of returning to New Zealand. If Mr Deliu does not intend to return to New Zealand, progressing any applications in respect of the charges outstanding against him serves no necessary or proper purpose. There is no reason why the charges cannot wait until Mr Deliu answers the warrants which have been issued against him and they can be dealt with more efficiently. Any delay caused is as a result of Mr Deliu's actions in departing New Zealand.
[9] While Mr Deliu remains outside New Zealand, he deliberately places himself beyond the reach of the New Zealand justice system. If he is convicted of the serious offending, he faces in the trial matters, there is a presumption of a sentence of imprisonment. However, as matters stand, he will be able to escape any sentence the Court may [choose] to impose. Likewise, if these applications are permitted to be heard then Mr Deliu can continue to act in these proceedings without any constraint because no sanction can be applied to him.
[10] In short, if these applications were allowed to be heard in Mr Deliu's absence it would permit him to manipulate the justice system to his own end. That is not in the interest of justice.
[14]Minute of Judge Paul (20 April 2021), above n 1.
Thereafter, the proceedings have remained dormant.
The High Court decision
Mr Deliu filed two applications for judicial review. The first — CIV‑2020‑404-1439 — sought to challenge the decisions and approaches taken by several District Court judges to various procedural issues made over the course of the criminal proceedings. [15] The second — CIV-2021-404-449 — concerned Judge Paul’s directions noted above.[16]
[15]Judgment under appeal, above n 2, at [1].
[16]At [2].
Harvey J approached his assessment of the various issues to which the review proceedings gave rise by grouping them under a number of broad headings that he considered identified the decisions, conduct, or approaches taken by various District Court judges that were the subject of challenge. The Judge framed the questions for review as follows:[17]
(a)Were the July 2017 decisions and actions of Judge Collins [when dealing with recusal issues related to Mr Deliu’s cell phone use at the case review hearing] lawful?[18]
(b)Were the trial adjournment, recusal, and debarment decisions [of Judges Collins and Sharp] lawful?[19]
(c)Was Judge Gibson’s conduct [in refusing to allow Mr Deliu to join a hearing via telephone] and the decisions he made in April 2018 lawful?[20]
(d)Were Judge Sinclair’s decisions [regarding the CPMIP] and issue of a warrant lawful?[21]
(e)Was Judge Treston’s decision to issue a warrant for Mr Deliu’s arrest lawful?
(f)Was Judge Paul’s refusal to issue witness summons lawful?
(g)Was [Judge Paul] entitled to adjourn all of Mr Deliu’s proceedings?[22]
[17]At [5].
[18]Decision of Judge Collins (5 July 2017), above n 3.
[19]Judgment of Judge Sharp (16 January 2018), above n 4.
[20]In April 2018, Judge Gibson issued a decision dealing with claims of privilege relating to documents seized by police pursuant to search warrants executed at offices connected with Mr Deliu. The Judge declined Mr Deliu’s application to join the hearing by telephone as an interested party and rejected Mr Deliu’s challenge to the independence of the amicus: see R v Shi, above n 5. The Judge referred to Mr Deliu as a “suspended lawyer”, to which Mr Deliu took exception.
[21]Minute of Judge Sinclair (16 April 2018), above n 7.
[22]Minute of Judge Paul (20 April 2021), above n 1.
Whether there had been a breach of Mr Deliu’s right to trial without undue delay was also noted as being a further matter for the Judge’s consideration.[23]
[23]Judgment under appeal, above n 2, at [6].
The Judge dealt with each of these various matters and all but one of Mr Deliu’s challenges were dismissed. The one substantiated error of law concerned Judge Sinclair’s conclusion that the only basis on which she could proceed with an involvement hearing in Mr Deliu’s absence under the CPMIP was if she was satisfied he was too mentally impaired to attend Court. Harvey J held the power to proceed in the absence of a defendant in such circumstances was not to the exclusion of other powers, including the Court’s jurisdiction to excuse a defendant and continue with such a hearing.[24]
[24]At [94]; and Criminal Procedure (Mentally Impaired Persons) Act, s 15.
The Judge did not however consider that this error gave rise to grounds for relief because the District Court Judge’s decision not to proceed with an involvement hearing and instead to issue a warrant remained a decision available to her in the exercise of her jurisdiction.[25] In any event, the Judge observed that subsequent events, notably Judge Paul’s direction on 12 March 2021 effectively adjourning the proceedings indefinitely, had overtaken this decision and rendered any relief in relation to it redundant.[26]
[25]At [97]–[100] and [153]; and Criminal Procedure Act 2011, s 122(3).
[26]At [148]–[154].
In relation to Judge Paul’s directions, Harvey J considered that the description of Mr Deliu as a fugitive from justice was “exaggerated”. The Judge set out his reasoning as follows:[27]
[114] As foreshadowed, Palmer J confirmed that the description of Mr Deliu as a “fugitive” was “exaggerated”. I agree. Moreover, it is difficult to see how that was a relevant consideration to the issues before the Judge. As Mr Deliu argued, there is no in absentia regime in operation. A litigant resident outside of New Zealand is not barred from initiating proceedings. That Mr Deliu was at the time facing charges of assault and subsequently charges of attempting to pervert the course of justice did not necessarily mean that as part of his defence to those charges, he could not request a witness summons or initiate other applications, like this judicial review, from overseas.
[115] In any case, the label “fugitive” is a curious one in the context of these proceedings considering that Mr Deliu was prepared for a trial in January 2018 but because of the adjournment decision, it could not proceed due to scheduling issues at the District Court. That decision had nothing to do with him, as Mr Deliu had underscored, and he opposed the adjournment of his trial. In summary, the reference to Mr Deliu as a “fugitive from justice” can be seen as counterproductive to the efficient disposal of the proceedings. It was unnecessary and has arguably had the unintended effect of acting as a distraction from the more pertinent issues.
[27]Footnotes omitted.
Harvey J nevertheless went on to find that the District Court has jurisdiction to decline an application for a witness summons and noted that when Judge Paul released his decision on 21 April 2021, it had been two years and 10 months since the warrants were issued.[28] Harvey J considered that Mr Deliu’s continued presence overseas had frustrated the resolution of the charges and that the District Court could not enforce any orders or sanctions it might ultimately make against Mr Deliu. Harvey J therefore concluded that Judge Paul’s decision to decline the application for a witness summons was not unreasonable and that it was lawful.[29]
[28]At [117]–[118].
[29]At [118]–[119].
Harvey J then set out the pertinent parts of Judge Paul’s decision to adjourn Mr Deliu’s proceedings. Harvey J recorded that Judge Paul concluded that r 2.15 of the Criminal Procedure Rules 2012 permitted him to give directions relating to the determination of the application and that he had interpreted that power as including a power to make determinations prior to accepting or denying an application.[30] After setting out the parties’ respective submissions, Harvey J referred to s 167(1) of the Criminal Procedure Act 2011, noting that while the power to adjourn is discretionary in nature, it can only be exercised for good reason, with the determinant being whether an adjournment is in the interests of justice.[31] The Judge referred to the right to be tried without undue delay guaranteed by s 25(b) of the New Zealand Bill of Rights Act 1990 and to the decision of the Supreme Court in R v Williams.[32]
[30]At [120]–[121].
[31]At [127].
[32]At [128], citing R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
Harvey J then held that Judge Paul’s decision to effectively adjourn sine die all Mr Deliu’s extant applications until such time as he answers his warrants was a decision within the Judge’s authority. He held that Judge Paul turned his mind to the correct legal test, that he considered the issue of delay and found that any delay was the result of Mr Deliu’s actions and therefore was not undue.[33] The Judge held that the exercise of the discretion was made within the correct statutory framework and that, although the outcome might be regarded as harsh, it was not so unreasonable that no rational decision maker could have made it. Harvey J held that there was no reviewable error.[34]
The grounds of appeal
[33]Judgment under appeal, above n 2, at [130].
[34]At [131].
There were various iterations in Mr Deliu’s written submissions of his grounds of appeal. As the hearing before us progressed, it became clear that the focus of Mr Deliu’s concern was Judge Paul’s directions. We identify the principal matters raised by Mr Deliu in the order in which we intend to address them. Broadly, Mr Deliu asserted that Harvey J erred:
(a)in determining that it was open to Judge Paul to adjourn the proceedings indefinitely pending Mr Deliu’s return to this country;
(b)by “repleading” Mr Deliu’s grounds for review;
(c)in ascribing blame to Mr Deliu for the delay in the progress of the proceedings; and
(d)in failing to exercise his discretion to grant relief.
Judge Paul’s decision to adjourn the proceedings indefinitely
As noted above, in March 2021, Judge Paul declined Mr Deliu’s application for a witness summons. The Judge recorded his decision not to exercise his discretion to do so “on the basis that while the defendant applicant remains a fugitive from justice” it was not in the interests of justice that a summons be issued.[35] Judge Paul adopted a similar approach when declining to hear and consider Mr Deliu’s various outstanding pre-trial applications the following month or at all, unless and until Mr Deliu returns to this country.[36]
[35]See [27].
[36]Minute of Judge Paul (20 April 2021), above n 1.
As noted, Harvey J held that Judge Paul’s decision to effectively adjourn sine die all Mr Deliu’s extant applications until such time as he answers his warrants, involved an exercise of the Judge’s discretion that was made with regard to the correct legal test, namely, whether it was in the interests of justice to hear the applications or adjourn. The Judge concluded that such an outcome was not so unreasonable that no rational decision-maker could have made it and therefore that there was no reviewable error.
Earlier in his judgment, when addressing Judge Paul’s refusal to issue a witness summons, Harvey J focussed on the correctness of the Judge Paul’s description of Mr Deliu as a “fugitive from justice” in his 12 March 2021 direction. Harvey J referred to an earlier decision, Deliu v Chapman, where Palmer J observed, in reference to Mr Deliu’s reasons for remaining outside the country, that he had no doubt “Mr Deliu’s complaint and fear [were] genuine”, and that it was a matter of record that the Crown had been prepared to proceed with a hearing in Mr Deliu’s absence.[37] Harvey J concluded that the description of Mr Deliu as a fugitive from justice was “exaggerated”.[38]
[37]Judgment under appeal, above n 2, at [111], citing Deliu v Chapman [2020] NZHC 2100 at [16] and [11(b)].
[38]Judgment under appeal, above n 2, at [114].
Before us, Mr Deliu argued that Harvey J, having rejected the proposition that he was, in the circumstances, a fugitive from justice, could not properly have concluded that the District Court was justified in deciding not to hear his various applications and the underlying criminal proceedings — essentially it was argued that the finding and the resulting conclusion could not be logically reconciled. In response, it was submitted by Mr Carruthers, on behalf of the Attorney‑General, that notwithstanding that Harvey J discounted the District Court’s description of Mr Deliu as a fugitive, the legal test, namely the interests of justice, had been correctly identified by Judge Paul, who, after having regard to the effect of Mr Deliu’s absence from New Zealand on the integrity of the criminal proceedings, was entitled to adjourn the proceedings indefinitely.
We consider that Harvey J’s initial comment that the description of Mr Deliu as a fugitive from justice is exaggerated understates the matter. The Judge however went on to find that, in effect, Mr Deliu could not properly be said to be a fugitive from justice. We agree.
The assertion that Mr Deliu is a fugitive from justice is inconsistent with the factual background. As we have noted, the matter was initially due to proceed on 22 January 2018. While it seems that Mr Deliu was overseas by this stage, he wanted to appear remotely. The Crown was prepared to proceed notwithstanding that Mr Deliu was overseas. The matter could have proceeded then but for the fact that the District Court was unable to accommodate the hearing at the allocated time. Further, but for the issues raised under the CPMIP, the proceedings could have been determined on 16 April 2018. Again, Mr Deliu and the Crown were ready to proceed at that time. Further, as Harvey J observed, there was nothing, as a matter of law, precluding Mr Deliu from filing pre-trial applications and advancing the same, from overseas. We consider that Judge Paul’s description of Mr Deliu as being a fugitive from justice was neither justified, nor legally correct.
We have some difficulty aligning Harvey J’s finding that Mr Deliu was not a fugitive from justice with the conclusion that Judge Paul did not err in adjourning Mr Deliu’s applications and the substantive hearing unheard on an indefinite basis.
We accept that the District Court has various powers of adjournment available to it,[39] and jurisdiction to regulate its own proceedings.[40] However, Harvey J’s finding had the effect of substantially depreciating Judge Paul’s justification for refusing to hear Mr Deliu’s applications. The rationale for Judge Paul’s direction was that Mr Deliu was effectively a fugitive from justice deliberately avoiding the jurisdiction in order to game the system. If that rationale is incorrect, the substratum for the directions disappears.
[39]See, for example, s 167 of the Criminal Procedure Act.
[40] District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [28]–[31].
Harvey J was careful to acknowledge that it is not the High Court’s role on judicial review to intervene in the merits of a decision, particularly one that involves the exercise of a discretion made within the correct statutory framework.[41] This approach was undoubtedly correct. However, we consider Judge Paul’s decision to place the criminal proceedings indefinitely on hold notwithstanding Mr Deliu’s willingness to engage in the proceedings (albeit from afar) and the Crown’s preparedness to progress the proceedings in Mr Deliu’s absence cannot be reconciled with the fact that Mr Deliu is not, on the materials before us, a fugitive seeking to avoid the justice system. Harvey J’s finding that Mr Deliu was a fugitive from justice neutralised the premise upon which the District Court relied when suspending Mr Deliu’s criminal proceedings indefinitely. We consider Judge Paul, when making that direction, took into account, as a material consideration, a factor which the High Court subsequently and correctly, concluded was incorrect. It was a factor which ought not have influenced the District Court direction to decline to hear Mr Deliu’s various applications.
[41]Judgment under appeal, above n 2, at [131].
We acknowledge the concerns of Judge Paul, which Harvey J also recognised, that by remaining overseas Mr Deliu can be considered as being in a “win-win” situation by remaining outside the jurisdiction and therefore beyond the Court’s sanction.[42] We accept that was a relevant factor bearing on the exercise of the discretion. However, that was the case at an earlier stage in the proceedings when Mr Deliu was represented by counsel. Mr Deliu then asked to be heard in absentia, and the Crown was willing to proceed notwithstanding his absence. There were other factors that, in the circumstances, arguably favoured hearing of the various applications and the continuation of the proceedings. These included Mr Deliu’s preparedness to appear remotely, the Crown’s willingness to accommodate this, and the statutory recognition of remote hearings.[43] There were other considerations which we were made aware of at the hearing of the appeal, in particular Mr Deliu’s inability to obtain registration as a lawyer in the country in which he is now residing. This is not meant to be an exhaustive list of potentially relevant factors going to the interests of justice. Rather, it simply highlights that there were other relevant factors that Judge Paul failed to take into account in exercising his discretion. As a result, we consider that the High Court erred in failing to quash Judge Paul’s direction adjourning Mr Deliu’s extant applications on an indefinite basis.
[42]Minute of Judge Paul (20 April 2021), above n 1, at [9]; and judgment under appeal, above n 2, at [139].
[43]Courts (Remote Participation) Act 2010.
The appeal insofar as it concerns Judge Paul’s directions the subject of proceeding CIV-2021-404-449 is allowed (that is, the direction dated 12 March 2021 refusing a witness summons and the minute of 20 April 2021 adjourning the proceedings). The matter is remitted to the District Court for its reassessment in accordance with this judgment.
We would not wish our direction regarding the reassessment of Mr Deliu’s various applications and the possible continuation of the proceedings to be interpreted as an indication that they should necessarily be pursued. While the prosecutions remain extant there remains an obligation on the Crown to keep them under review. It is open to the Crown to reconsider whether they should be pursued. Other options are available, including possible withdrawal or stay. These are however matters entirely for the Crown to decide.
Other grounds of appeal
Because of our conclusion that the High Court erred in its analysis of Judge Paul’s decision to indefinitely adjourn Mr Deliu’s extant applications and thereby effectively suspend the criminal proceedings, the other grounds of the appeal are largely redundant. However, for completeness, we briefly review them. In so doing, it is necessary to reiterate that, for reasons of policy and principle, judicial review has only a limited role in the context of criminal pre-trial matters.[44] The need to avoid collateral challenges interrupting the conduct of criminal prosecutions means that it is necessary for there to be compelling reasons to step outside the statutory framework within which criminal proceedings are designed to be conducted, which of course provides for “carefully crafted appeal rights”.[45] We agree with Harvey J’s assessment that there are aspects of some of the decisions sought to be challenged by Mr Deliu in this case that fall into this category.[46] We are also mindful that Mr Deliu’s oft-repeated demand that Judges recuse themselves has little prospect of success. A Judge exercising his or her judicial functions does not thereby become ineligible to hear the matter.[47]
[44]DGN v Auckland District Court [2015] NZHC 3338, [2018] NZAR 137 [DGN (HC)]; aff’d [2017] NZCA 135, [2018] NZAR 137; Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC); Angus v District Court [2017] NZHC 2879, [2018] NZAR 1804; Bennett v District Court of New Zealand [2020] NZHC 1730; and Gifford v District Court of New Zealand [2022] NZHC 851, [2022] NZAR 50.
[45]DGN (HC), above n 44, at [28]–[29].
[46]Judgment under appeal, above n 2, at [37]–[40].
[47]“High Court recusal guidelines” (12 June 2017) Courts of New Zealand < at [1.5.3] and [5.2].
Against this background, we turn briefly to the other key grounds of appeal.
The regrouping of Mr Deliu’s causes of action and the assessment under the heading of “unreasonableness”
In his applications to review the various decisions and aspects of individual judges’ conduct, Mr Deliu pleaded a raft of causes of action ranging from errors of fact and law, estoppel, breaches of natural justice, bias and other orthodox grounds of judicial review which, he argued, were not required to be “repleaded” on his behalf. Mr Deliu argued the High Court failed to adequately adjudicate on all his causes of action and deal with each of the factual and legal allegations he advanced in respect of each specific head of his claim. It was also submitted the Court had erroneously dealt with a number of the pleaded allegations against the high standard of “Wednesbury unreasonableness”, which he claimed was unfair and denied him “fair trial process”.[48]
[48]See Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223.
In support of this ground of appeal, Mr Deliu sought to compare his pleadings, the evidence and submissions he presented in support of his review applications with the approach taken by the High Court and endeavoured to demonstrate that various allegations had not been addressed. Mr Deliu also referred to various parts of the High Court judgment where it was suggested the Judge had erroneously applied the test of “Wednesbury unreasonableness” to matters he had not challenged on such a basis.
We do not consider that the approach taken by Harvey J to the various grounds of judicial review and the factual and legal allegations that accompanied those causes of action gives rise to any concern that Mr Deliu’s challenge to the District Court decisions were not adequately addressed in the High Court. Because of the procedural narrative of the criminal proceedings, spanning more than three years and involving a number of different judges, we consider Harvey J’s approach (essentially a “hearing‑by-hearing” analysis) provided a structured and convenient way by which the substance of Mr Deliu’s many grounds of review and allegations in support could be dealt with in a logical manner. It may be that not all of Mr Deliu’s multiple allegations were addressed, but a judge is not required to deal with each and every argument put forward by an applicant in support of his or her position.[49]
[49]Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176 (HL).
We consider it apparent from Harvey J’s reasoning that he addressed the legality of each of the District Court decisions in a substantive way and that he addressed Mr Deliu’s major complaints. These included alleged unfair treatment of Mr Deliu by various District Court judges, the validity of the arrest warrants, the adjournment of his trial, and issues of undue delay and breach of natural justice. We accept, as the Crown acknowledged, that Harvey J did not consider discreetly Mr Deliu’s recusal application in respect of Judge Paul, but in light of our decision requiring the District Court to revisit the directions made by Judge Paul, that omission is of no moment.
As we have already observed, the decisions the subject of challenge were largely procedural rulings made in the context of criminal proceedings in the District Court. Arguably, Harvey J could have taken a narrower approach to the identification of issues that could appropriately be the subject of judicial review proceedings. In our view the Judge properly focussed on questions of jurisdiction, law, and ultimately, insofar as he could have regard to the outcome of decisions of this nature, their reasonableness in an administrative law sense.
Harvey J considered some of Mr Deliu’s grounds of review against a test of manifest “unreasonableness”, but we reject Mr Deliu’s argument that Harvey J’s approach gives rise to any appealable error. Mr Deliu claimed that the Judge was not required to analyse the various decisions in such terms. We consider the Judge’s approach likely reflected the nature and extent of Mr Deliu’s criticisms of the decisions challenged. In our view, the Judge dealt with the criticisms in an orthodox way by applying ordinary principles of judicial review.
Blame for delay in progress of criminal proceedings
Mr Deliu submitted that Harvey J erroneously attributed the blame for the delay in the criminal proceedings to him and that the Judge failed to take into account or give proper weight to his evidence that he had received threats that put him and his family’s safety in danger. Mr Deliu took particular exception to the Judge’s observations that he had placed himself out of reach of the justice system, and that the significant number of pre-trial applications he had filed had some effect on the delay. Mr Deliu submitted these statements amounted to errors of fact by the Judge.
The Judge’s observations were made when considering whether Mr Deliu’s right to be tried without undue delay had been breached and his review of the factors that had contributed to that delay. The Judge’s comments must be read in the context in which they were made and taking into account the ways in which they were qualified. For example, the observation that Mr Deliu had placed himself beyond the reach of the justice system was followed by an acknowledgement that whether that was his intended result by leaving New Zealand was immaterial.[50] Similarly, in large measure, the attribution of responsibility for delay arising from Mr Deliu having left the jurisdiction was overtaken by the Judge’s analysis of whether Mr Deliu was a “fugitive” from justice. The justification given by Mr Deliu for having to file so many pre-trial applications as a result of alleged “misconduct” by District Court judges was expressly recorded.[51]
[50]Judgment under appeal, above n 2, at [139].
[51]At [142].
We do not consider the way in which the Judge dealt with these matters was erroneous. As is apparent from our earlier discussion regarding the indefinite adjournment of the criminal proceedings, it is apparent that Harvey J appreciated the circumstances in which Mr Deliu left the country. What weighed with the Judge was not the reasons why that had occurred but the fact that Mr Deliu was now resident outside the country and how that impacted on the progress of the criminal proceedings.
Relief
Mr Deliu argued that the Judge, when deciding not to grant him relief, failed to take into account the claimed pattern of mistreatment he had received from the District Court, the fact that two trials that should have taken place had not proceeded, and what he described was the “purposelessness” of the criminal proceedings given his intention not to return to the jurisdiction and the absence of any efforts to seek his extradition. He argued that, as matters presently stand, the charges against him will never be adjudicated upon and therefore serve no legitimate purpose. He submitted these factors should have been taken into consideration by Harvey J.
We accept the Crown’s analysis that this ground of Mr Deliu’s appeal lacks any proper foundation. The Judge made no finding of a pattern of mistreatment by the District Court or breaches of the New Zealand Bill of Rights Act. Nor did Harvey J conclude that the adjournment of fixtures or the issue of warrants for his arrest were unlawful. To the extent Judge Sinclair erred in her appreciation of other powers to hold an involvement hearing in Mr Deliu’s absence for the purposes of CPMIP, that proved to be of little material consequence. Judge Sinclair was not prepared to make any preliminary decision regarding whether the CPMIP had been triggered without further psychiatric information and, in the absence of being so satisfied, that path was not available.[52] It is apparent therefore that Judge Sinclair’s view regarding whether she could have proceeded in the absence of Mr Deliu was not pivotal to the course finally adopted.
Conclusion
[52]Minute of Judge Sinclair (16 April 2018), above n 7, at [7].
In light of the High Court’s finding, with which we agree, that Mr Deliu should not be considered a fugitive from justice, we have concluded that Court erred by failing to quash Judge Paul’s directions not to hear and determine Mr Deliu’s pre‑trial applications that were the subject of proceeding CIV-2021-404-449, and by not remitting the matter back to the District Court for its reconsideration. Accordingly, Judge Paul’s directions are quashed. The appeal is otherwise dismissed.
Result
The appeal is allowed in part.
The District Court’s directions the subject of proceeding CIV-2021-404-449 are quashed and the matters the subject of those directions are remitted back to the District Court for reassessment in accordance with this judgment.
The appeal is otherwise dismissed.
The parties are agreed no order for costs or disbursements is required and we direct accordingly.
Solicitors:
Kayes Fletcher Walker Ltd, Manukau for First Respondent
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Third Respondent
7
5
0