Deliu v Flanagan
[2022] NZHC 2621
•12 October 2022
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1714
[2022] NZHC 2621
UNDER THE Judicial Review Procedure Act 2016, Part 30 of the 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, bill of rights claims and a petition for declaratory relief
BETWEEN
FRANCISC CATALIN DELIU
Applicant
AND
NICHOLAS FRASER FLANAGAN
First Respondent
Cont:/
Hearing: 25 May 2022 Appearances:
Plaintiff in person
D Jones and T Li for Second to Sixth Defendants
Judgment:
12 October 2022
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 12 October 2022 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Law Office, Wellington
DELIU v FLANAGAN & Ors [2022] NZHC 2621 [11 October 2022]
AND GILLIAN HOLLAND
Second Respondent
AND
ANTONY McKENZIE
Third Respondent
AND
JAMES CASSIN
Fourth Respondent
AND
TONI JORDAN
Fifth Respondent
AND
THE NEW ZEALAND POLICE
Sixth Respondent
Introduction
[1] In this proceeding Mr Francisc Deliu (the applicant) applies for judicial review of a decision made by Police on 25 February 2021 to dismiss a complaint he had made regarding the actions of Detective Sergeant Antony McKenzie (the third respondent) who had caused a border alert to be put in place to have the applicant detained upon arrival at a New Zealand port of entry. The Police considered the applicant’s complaint and found that Detective Sergeant Antony McKenzie did not commit any criminal offences in relation to the matter, and decided that no further investigation of the applicant’s complaint was required.
[2] The applicant also seeks judicial review of a decision by the Police not to investigate a complaint he made in which he alleged that a solicitor Mr Nicholas Flanagan (the first respondent) and a Police Investigator, former Detective Gillian Holland (the second respondent), had conspired to and/or attempted to defeat the course of justice in the course of a telephone conversation they had with the applicant on 17 May 2018.
Background
[3] On 21 July 2017 the owner of a school holiday camp (the complainant) made a complaint to Police at the Auckland Central Police Station alleging that in the course of an altercation that arose on 19 July 2017 when the applicant went to the camp to pick up his son, the applicant had shoved the complainant in the chest, and had then refused to leave the premises when asked. The complainant told the Police that the applicant’s behaviour gave him reason for concern and that he would like the Police to warn the applicant about his actions.
[4] On 21 July 2017 a police officer stationed at the Ponsonby Police Station forwarded the complaint file to Sergeant James Cassin (the fourth respondent) for “consideration for reassignment to relevant member for Police warning as requested by the victim”. Sergeant Cassin, who was also stationed at the Ponsonby Police Station, reviewed the file and noted that due to the high file load and low staff numbers and other Police investigations then underway, an investigator could not be assigned to the matter.
[5] On 10 January 2018, another police officer noted on the Police National Intelligence Application (NIA) file:
WTI [Wanted to interview] entered against the suspect
requesting file to be inactivated pending suspects [sic] arrest
Unable to be assigned to an investigator as Avondale Enquiries office holds other files of higher priority and low staff who already have high case loads.
Letter will be sent to the victim and attached electronically. … Statutory limitation 12 months from incident date
[6] In February 2017, Police had charged the applicant with two charges of assault with a weapon relating to an incident which was alleged to have occurred on 20 January 2017 at the premises of the law firm, Amicus Law. Detective Sergeant Antony McKenzie and Detective Toni Jordan (the fifth respondent) were both members of the Major Crime Team at Auckland Central Police Station, and both were involved in the Police investigation and prosecution of the applicant in connection with the assault charges which were scheduled for hearing in the Auckland District Court in the week commencing 22 January 2018. However, neither Detective Sergeant McKenzie nor Detective Jordan had been involved in the Police investigation or response to the assault alleged to have taken place at the school holiday camp on 19 July 2017.
[7] On 14 January 2018, the applicant departed New Zealand with no immediate intention of returning.
[8] On 17 January 2018 District Court Judge Collins, having reviewed the court schedule and cases scheduled for hearing during the week commencing 22 January 2018 advised counsel for the parties that it was unlikely that the applicant’s trial could take place, and he accordingly vacated the fixture, and placed the matter in a callover on 22 January 2018 for a new trial date to be set. Having departed New Zealand the applicant failed to appear in Court on 22 January 2018. His counsel, Dr Tony Ellis advised the Court that the applicant had fled the country because he was fearful for his life. At the callover hearing on 22 January 2018, Judge Collins excused the applicant’s non-appearance and scheduled a telephone conference with counsel on 13 February
2018 to monitor progress with the file and to address the pre-trial applications the applicant’s counsel had said were under consideration and might be made and which were timetabled to be filed by 9 February 2018.
[9] Following the callover hearing on 22 January 2018 Detective Jordan sent an email to Detective Sergeant McKenzie at 10.59 am. She said:
Hi Tony,
As discussed (while making Immigration / Bail Condition checks) I have noticed this WTI enough to K9 alert. I last met with DELIU on 09/01/2018 and need to determine if he has left the country and if so the whereabouts but my understanding as per Det. Gill HOLLAND’s noting on NIA, the suspect DELIU had been living in Torbay. We need some clarity here as the 12 mth stat. limitations expiry then is in July this year.
Toni
[10] At 11.03 am on 22 January 2018 Detective Sergeant McKenzie sent an email to Sergeant Cassin and copied it to Detective Jordan. He said:
Hi James, any chance you can give me a call when you are free about this file. I see that the file has been inactivated and do not know what enquiries have been done but the offender is no longer in NZ. Fraud squad and one of my team have prosecutions for him for fraud and assault matters. The offender is a lawyer, has been making IPCA complaints and is even taking private prosecutions out against police staff. It would seem to me that this is a case we should make sure is progressed so that he can be arrested on his return to NZ. You can get me on [mobile phone number].
Regards
[11] At 11.27 am on 22 January 2018, Sergeant Cassin noted on the Police NIA file that he had spoken to the assault complainant and he had confirmed that he only wanted the applicant warned. Then at 11.36 am Sergeant Cassin recorded on the Police NIA file that:
Suspect left NZ for Brisbane on 14.01.18 Border alert placed on suspects [sic] name for when he flys [sic] back into the country.
[12] The border alert was a monitor alert which simply required the New Zealand Customs Service to inform the police officer named in the alert in the event that a person having the applicant’s name and date of birth entered New Zealand. The alert
contained no information about the 19 July 2017 school camp assault allegation, or any other Police enquiries regarding the applicant.
[13]On 23 January 2018 another police officer noted on the Police NIA file:
**I am currently at Court with DELIU (file: 170120/9555) and noted a WTI sufficient to K91 alert dated 10/01/2018 on him yesterday. As such I raised it with my supervisor who in turn has raised it with the Enquiries supervisor. The WTI has been altered to WTI - K4**. I am no longer in a position to deal with it as it would appear DELIU is edging toward a complaint against me as outlined in the aforementioned file number.
[14] On 10 June 2019 the applicant commenced proceedings in the High Court at Auckland against the New Zealand Police and several named police officers in which he alleges that they committed misfeasance in public office. That proceeding is yet to be heard and determined.
Police charges laid against the applicant
[15] As noted, in February 2017, the Police charged the applicant with two charges of assault with a weapon relating to an incident which was alleged to have occurred on 20 January 2017 at the premises of the law firm, Amicus Law.2 The hearing of the charges was initially scheduled to take place in the Auckland District Court during the week commencing 22 January 2018, however that fixture was vacated by the Court because other court matters also scheduled for hearing that day meant that it was unlikely that a judge would be available to hear it. The matter was accordingly placed in a callover list on 22 January 2018. Having recently departed New Zealand, the applicant did not appear before the District Court on 22 January and the presiding Judge excused his attendance, and ordered a judicial telephone conference to review progress with the matter on 13 February 2018.
[16] Mr Flanagan, who is a partner at the Auckland Crown Solicitor’s law firm, Meredith Connell, was representing the Police in relation to the applicant’s matter. The applicant’s counsel in relation to the assault with a weapon charges was Dr Tony Ellis, although the applicant was also self-represented in correspondence and
1 Police arrest code.
2 These charges are yet to be determined, and the Police file remains active.
communications between himself and the Auckland Crown Solicitor. In the period between January 2018 and 13 February 2018, the applicant and Mr Flanagan exchanged emails regarding the Police investigation into the applicant’s actions including in relation to witnesses the Police wished to interview in connection with suspected criminal offending. Dr Ellis was copied in to the email correspondence.
[17] In April 2018 the Police laid two charges of attempting to pervert the course of justice against the applicant. Detective Holland was the officer in charge of that prosecution.
[18]On 26 April 2018 Mr Flanagan sent an email to the applicant. He said:
Dear Mr Deliu
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 S (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 S (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.
Yours faithfully Nick Flanagan
[19] On 2 May 2018 Police laid two charges against the applicant of attempting to pervert the course of justice. The charges arose from an investigation being conducted by the Police into an alleged forgery, and from allegations that the applicant had applied pressure on a witness not to co-operate with the Police investigation. The
charges were presented and filed by Detective Holland. Meredith Connell with Mr Flanagan acting, represented the Police. The charges were filed in the Auckland District Court and as the applicant was no longer in New Zealand a summons could not be served on him and a warrant to arrest was sought by the Police and obtained. The charges laid on 2 May 2018 remain active.
[20] On 17 May 2018 a prearranged telephone call took place between the applicant and Mr Flanagan. Detective Holland was present with Mr Flanagan. Prior to the 17 May telephone call, Mr Flanagan and the applicant had spoken on the telephone and had exchanged emails. On 14 May 2018 Mr Flanagan sent an email to the applicant in which he said:
Dear Frank
Further to our brief telephone call on Friday afternoon, I email regarding your request for a without prejudice discussion. You will recall that you asked if I was prepared to have such a discussion and I said I would not speak to you without a witness present but would reflect on the position. I have now done so.
I am willing to have a without prejudice discussion with you, with a witness present and an audio recording made. If you wish to have such a discussion, please reply to this email with some suggested times.
Yours faithfully Nick Flanagan
[21]The applicant replied some 15 minutes later. He said:
Hi Nick,
Nice to hear from you. I am glad that you are willing to proceed.
I certainly have no problem with an objective audio-recording made by you nor a witness present, although for the avoidance of doubt, the discussion would be protected by [s] 57 of the Evidence Act 2006 to allow us both to discuss freely and candidly, and neither of us would be able to use what is talked about in any way, shape or form in any venue. I trust you would agree with this.
My intention is to see if we can amiably resolve our personal matters, i.e., my complaint and lawsuit against you, and, if possible, other disputes I am involved in with your clients the New Zealand Police (including staff) and Crown.
Can I suggest my Wednesday evening/your Thursday morning? I am flexible with the time, so whatever suits you best.
Look forward to our chat,
Frank
[22] Then some hours later on 14 May 2018 the applicant sent Mr Flanagan another email in which he said:
Re: Without Prejudice discussion [MC-DMS.FID567206]
FYI, ahead of our chat I provide the ATTACHED in strict confidence.
[23]Mr Flanagan responded:
Frank
I have not opened the attachment to your email because we have not agreed the terms of any discussion nor the terms of my receiving it.
We are aware of the provisions of s57 of the Evidence Act. Obviously whether that section is triggered in any given case depends on what is discussed, in the usual way. In particular that proceeding expressly refers to civil proceedings and you are also party to criminal proceedings.
If this is accepted, please confirm. Otherwise I will delete your latest email and attachment unread.
Yours faithfully Nick Flanagan
[24]The applicant replied:
Hi Nick, 57(2A)?
Anyway, the privilege covers ancillary communications such as our e-mails and attachments as long as they are “any communication” (“or document”) for settlement negotiations or plea discussions.
So, I take the view that the privilege already attaches, but if you want further clarification of the terms let me know and I will prepare a draft agenda for your consideration.
Thanks, Frank
[25]Mr Flanagan replied in turn:
Frank
Thanks for the clarification you intend to discuss the criminal proceedings in terms of s57(2A). For my part I need your express confirmation you accept the second sentence of my second paragraph below before I can open the document you have sent or have a without prejudice discussion.
Yours faithfully Nick Flanagan.
[26]The applicant responded:
Hi Nick,
I confirm that whether [s] 57 is triggered in any given case depends on what is discussed, in the usual way.
Let me know what time your Thursday suits you so that I may diarise.
Frank
[27] Then after Mr Flanagan had sent the applicant an email proposing 10.00 am on Thursday that week for the telephone call, the applicant sent Mr Flanagan a further email saying:
Fine by me, but I have no landline and the cell service here tends to be choppy so I intend to call you on a Skype subscription so can you please let me know what landline number you prefer?
…
Finally, in the interests of full candour, I may also have a witness present and/or record the call; subject of course to my prior undertaking not to use it in any other forum (even if somehow [s] 57 does not apply).
Look forward to our talk,
Frank
[28] The telephone conversation between the applicant and Mr Flanagan on 17 May 2018 then took place as planned. It was recorded and a transcript was prepared and produced as an exhibit. It reads:3
3 Note: irrelevant “ums” and “uhs” appearing in the transcript are not included.
Flanagan:On the criminal case, the reason I was anxious to be clear about the basis for which you said that this conversation would be privileged was of course the section applies to a plea deal, I think you’ve [sic] fairly proposing one in relation to the assault and that is something we can reflect on, but you’re not of course proposing anything in relation to the other charges and they’re much more serious charges so I don’t think you can have a realistic expectation that the Crown will accept no proposal in relation to those charges. Is that clear enough?
Deliu:Yes, well I guess the only thing that I would, is that the only thing you have to say?
Flanagan: Well it seems to me that the one constructive conversation we could have is the civil proceeding and whether that can be ended on, a, the basis that there is no costs sought by the Police. I don’t have instructions as to that, but that would seem to me to be a pragmatic outcome that I could probably recommend given that you are offshore and there would be real difficulty in enforcing any costs order and the reality is that it might be impossible to do so.
Deliu: Okay, well.
Flanagan:So that’s, that’s the proposal I think we should discuss on the civil case, you haven’t made a proposal on the criminal one, but if you’d like to make one I’m happy to discuss it.
Deliu:All right well I guess two points in relation to your three points. You definitely won’t ever get a dollar in costs I, I, assure you of that. You don’t understand how Romania works, you don’t understand how Europe works and clearly you don’t understand how my brain works, you, you will never get a dollar, but go ahead and try, that’s perfectly fine, it’ll, it’ll be a good lesson. And as to the proposal to the other charges I find it quite striking that you’d want me to make a proposal to charges that I haven’t even been served with, it’s yet another indication, I think, that this is all a bit farcical so I don’t really think we need to explore it further because I can’t possibly make a proposal to charges that I don’t even know what they are, and so on that basis …
Flanagan:It’s not true Frank, we’ve told you what you’ve been charged with.
Deliu:Okay, you want me to make a proposal on your e-mail. Yes Flanagan I will plead guilty to your e-mail. Okay, there’s my proposal.
Flanagan: Okay. So, you will plead guilty to three charges.
Deliu:Okay, so I will write you back and I will tell you that I am pleading guilty to your e-mail and you take that further, you
take that to the District Court as my plea. Okay, so I am happy to proceed that way.
Flanagan: The proposal is that you will plead guilty to two counts of attempting to pervert the course of justice because that’s a discussion we can have.
Deliu:No, no I’ll plead guilty to your e-mail because that’s all I know, so, sure, I’ll absolutely plead guilty to your e-mail.
Flanagan: No, my question was are you proposing to plead guilty to two counts of attempting to pervert the course of justice because that’s what you’re charged with.
Deliu:Nick, I don’t know a single fact, I can’t believe, and I’m trying to be courteous here so I’ll restrain myself, but I can’t believe that you seriously think that I would offer to plead guilty to charges where I don’t even know what the facts are, I mean, with respect, even in Stalinist Russia they at least told the person what they were charged with in detail. So if you seriously …
Flanagan: We have told you what you’re charged with in detail. Deliu: Okay, no, okay, then I …
Flanagan:I am very happy to on a without prejudice basis discuss the basis of the charges with you Frank so you can assess whether or not you want to make a plea, that would fall within the terms of the Evidence Act.
Deliu: And, and you don’t think that I should be entitled to a … Flanagan: But it has to be expressly on the basis you’re considering a
plea.
Deliu:Well I can’t consider a plea until I know the evidence can I? I would have thought this was basic law school stuff if I’m not mistaken.
Flanagan: No, you can consider a plea based on what the charges are and what you already know of them and if you are considering that then I am happy to have a further discussion with you about the basis for it.
Deliu:No, no, that’s, that’s, that’s absolutely not going to happen. So, okay Nick I guess we’ll just [inaudible] with each other for the next decade, so thanks for that.
Flanagan: No problem, cheers. Deliu: Take it easy.
[29] On 21 May 2018 the border alert which had been put in place on 22 January 2018 was cancelled by Police. This was in accordance with an agreement between the parties and in resolution of a separate civil proceeding brought by the applicant against the Police alleging that the Police had acted unreasonably by continuing their investigation into the 19 July 2017 alleged assault at the school holiday camp. Pursuant to an agreement between the parties dated 7 May 2021 the Police closed their file in relation to the alleged assault and undertook not to renew the border alert.
First complaint to Independent Police Conduct Authority
[30] On 9 July 2019 the applicant lodged a complaint with the Independent Police Conduct Authority (IPCA) alleging that the Police had falsified evidence with the intention of perverting the course of justice. In its letter dated 15 July 2019, the IPCA advised the applicant:
The matters you complain about are central to the criminal charges that you are facing regarding incidents which occurred between June 2016 and November 2016. The Authority understands you will be appearing in court in connection with these charges in due course.
The allegations you now make against the officers involved are likely to be considered by the Court as part of the determination of the outcome of these proceedings.
Where Court proceedings are conducted which will deal with the same incident or issue upon which a complaint has arisen, resolution is a matter for the court as it is the proper place to decide such things. It is not the role of the Authority to decide issues which it is the function of the Courts to decide. Nor does the Authority have power to tell Police prosecutors what to do; it is entirely separate from Police. …
Complaint to Police and second complaint to the IPCA
[31] On 1 February 2021 the applicant made a formal “disciplinary complaint” to the Police (the sixth respondent) and also to the IPCA against three police officers: Detective Sergeant McKenzie, Detective Jordan and Sergeant Cassin in relation to their conduct surrounding the 22 January 2018 email and the issuing of the border alert. In his complaint the applicant alleged that Detective Sergeant McKenzie and Sergeant Cassin had conspired to pervert the course of justice or make a false accusation against him and in doing so had abused their police powers.
[32] On the same date the applicant also made a “criminal complaint” to the Police alleging that Detective Sergeant McKenzie and Sergeant Cassin had “conspired to, attempted to and/or actually did, pervert the course of justice and/or [made] a false accusation and in any event abused their Police powers”. In his email setting out his complaint, the applicant said:
The evidence proves beyond cavil that DS McKenzie directed the unindicted co-conspirator to place a border alert for the illegal purpose of having me wrongly imprisoned because I exercised [sic] in lawful complaints against police officers pursuant to statutory framework under [s] 14(3) of the Independent Police Conduct Authority Act 1988. He and JCH312 thus violated [s]115 (Conspiring to bring false accusation) and/or 116 (Conspiring to defeat justice) in agreeing to and/or actually placing the border alert on my name, or at least attempted, [s] 72, to do so. It is not clear for what crime, much less on what evidential basis, the border alert was placed, but it is clear that the alleged victim did not wish to take the matter further nor indeed the New Zealand Police, including JCH312, until DS MacKenzie [sic] intervened to (attempt or actually) pervert the course of justice which led to a conspiracy with his co-accused to bring a false accusation.
[Detective] Jordan failed to report these officers for their crimes and/or abuse of power.
I so complain and look forward to hearing from one or both agencies, thank you in advance.
Police response to complaints
[33] On 9 February 2021, Detective Inspector Vakaruru, District Manager Criminal Investigations, Auckland City, sent an email to the applicant in which he advised that the matters raised by the applicant would be reviewed against “our Investigative Best Practice in light of the Judicial commentary on Detective Sergeant McKenzie and Detective Jordan’s, actions”.4 He advised that he would send the applicant an update on where his complaint would be investigated and who his point of contact would be.
[34] The applicant responded to Detective Inspector Vakaruru in an email sent on 9 February 2021. He said:
Hi, thank you, look forward to it. To be clear though, I have also laid a criminal complaint against McKenzie and unidentified Constable with the JCH… QID. I want them charged for their perversion of the course of justice, I do not want them only disciplined. So, please also progress that matter as well as if the Police refuse to prosecute them then I will initiate judicial review proceedings
4 See Palmer J in Deliu v Johnstone [2021] NZHC 25.
for the failure or refusal to do so. McKenzie directed, and therefore conspired, with JCH to pervert the course of justice in placing a border alert that for ulterior motives not related to law enforcement. They must face the full force of justice over that crime, and if the Police refuse to do their duty then I will compel them to do so in the High Court. I trust that will not be necessary and look forward to hearing from you.
Good day,
Frank
[35] The applicant also sent an email on 9 February 2021 to Ms Toni Lucas5 at the Police who had responded to his prior email advising that his emails regarding his complaint had been forwarded to Detective Inspector Vakaruru, the District Manager Criminal Investigations, Auckland City. In his email to Ms Lucas which was copied to Detective Inspector Vakaruru, the applicant said:
Hi Toni, thanks. I reserve my position that the same Constable cannot concurrently investigate the same individuals for both potential criminal and disciplinary matters for reasons I would have thought would be obvious, i.e., different standards of proof, different rights afforded to accused, etc and so preserve this as a judicial review ground.
That said, I do not want to be premature and would ask DI Vakaruru to please give me an update as to how the investigation(s) is/are progressing after more than a week? I look forward to hearing from you Sir, e.g., have you reached out to the Constables to get their side of the story as of yet? I look forward to hearing from you ASAP as these are obviously serious matters that the High Court has repeatedly expressed concern about, ta.
[36] The applicant’s complaints were first reviewed by Detective Inspector Scott Beard and then considered by the Police National Assessment Team (NAT) on 17 February 2021. The NAT concluded as regards Detective Sergeant McKenzie’s 22 January 2018 email that:
The panel view is that there is nothing criminal in the email, more that D/Sgt McKenzie just needs to be a bit more mindful about what he puts in his emails in future. The panel believe that a learning conversation is the appropriate outcome and that has already occurred with D/Sgt McKenzie. In order to close off the matter, confirmation that has occurred and topics covered would be useful.
[37] On 25 February 2021, Detective Inspector Vakaruru sent an email to the applicant. He said:
5 Ms Lucas’s position at the New Zealand Police is not recorded in her correspondence.
1. The Complaint you’ve made against Detective Sergeant Tony McKenzie has been completed. The matter was reviewed by a Detective Inspector and referred for a final assessment to Police National Headquarters.
2. The decision is, D/Sergeant McKenzie did not commit any Criminal offences so no further investigative action is required.
3. In terms of your further complaints against Mr Nick Flanagan and Ms Gill Holland these are also underway and an update will follow shortly.
[38] On 16 March 2021 Detective Senior Sergeant Latimer provided Detective Inspector Vakaruru with an “Initial Assessment” report regarding the allegations made by the applicant against Mr Flanagan and Detective Holland. The report noted the complaint details and that the applicant had made a complaint to the IPCA in July 2019 alleging that the Police prosecution of him was flawed and that Detective Holland had perverted the course of justice by advancing false allegations against him for obstructing the course of justice, and had conspired to have him plead guilty to the criminal charges in the course of the telephone conversation he had with them in May 2018. The report noted that the Auckland City Police Professional Conduct Group (PPC) had previously reviewed the complaint in a report dated 25 November 2019 and had closed the file having concluded that the complaint would be best dealt with before the court in the context of the substantive prosecution of the charges. Detective Senior Sergeant Latimer’s report recommended that the case file be reviewed and the information on it assessed relating to the charges of perverting the course of justice and disclosure, and that there should be a discussion with the PPC to determine the action to be taken.
[39] Having received Detective Senior Sergeant Latimer’s report, Detective Inspector Vakaruru decided that as the applicant’s complaint against Mr Flanagan and Detective Holland related to the charges of perverting the course of justice brought against the applicant and which were yet to be determined, the IPCA’s reasons as set out in its 15 July 2019 response to the applicant’s allegations against the police officers still applied and that the matters he had complained about should be raised in the context of the court proceedings in which the substantive criminal charges were to be determined. In his affidavit filed in this proceeding Detective Inspector Vakaruru said that he did not correspond further with the applicant in relation to the decision
regarding Detective Holland as the IPCA had already dealt with the matter in its letter to him dated 15 July 2019. He says:
The file was closed on the basis that the complaints had been made, considered, and closed in 2019 in relation to Holland by the IPCA and PPC. No finding was specifically made with regards to Flanagan, but in light of the decision in relation to Holland, this complaint was effectively closed on the same basis.
[40] On 24 March 2021 the IPCA wrote to the applicant following its consideration of the matter advising that it had made a decision and had concluded that there was no evidence of misconduct or neglect of duty and it would not be taking any further action. The IPCA addressed each of the applicant’s complaints. It said:
Police were wrong to investigate the assault report
I appreciate you consider the report made against you was false and Police should not have investigated it. However, Police have a responsibility to respond to and investigate reports of criminal offences being committed. This includes making enquiries with the victim, potential witnesses, the suspect as well as collecting any other available evidence, such as CCTV.
After their investigation, Police need to decide if they have sufficient evidence to prove a case and be satisfied it is within the public interest for a case to be prosecuted. It is at this point, Police also need to consider if an alternative option, such as a warning, is more appropriate.
While the victim may have indicated they wanted Police to only warn you for the behaviour, the views of the victim/s do not determine the extent of Police enquiries and are only one factor Police consider when deciding whether to prosecute. The Authority considers Police acted appropriately when they investigated the allegation against you.
Police were delayed in investigating the report made against me
After reviewing the Police records relating to the assault, we understand that between the time the matter was first reported and January 2018, competing investigation priorities meant Police weren’t able to assign the matter to a specific investigator.
We note that while there was wasn’t a specific investigator assigned, Police were collecting information and progressing the matter. Our view is that there is no neglect of duty in the way Police assigned resources to investigate the allegation against you.
Police wrongfully entered a border alert against my name
I recognise you object to an alert being entered against your name. However, Police can record an alert against someone for a variety of reasons, including for the purposes of assisting with an investigation of an offence. The alert activates when that person enters or leaves New Zealand and the response
from Customs depends on the type of alert that has been requested. There is no evidence of misconduct in the border alert being entered.
Detective Sergeant McKenzie perverted the course of justice
It appears the majority of your concerns relate to Detective Sergeant McKenzie. I acknowledge you believe the email Detective Sergeant McKenzie sent on 22 January 2018 proves he and Police were conspiring to defeat justice and conspiring to bring a false allegation against you. However, after reviewing the complete Police records, we have seen no evidence of this.
Our analysis of Police files reveals that before Detective Sergeant McKenzie reviewed the file, Police wanted to speak with you about the allegation and intended to arrest you. His email prompted Constable Cassin to make further inquiries as part of the investigation (obtaining updated victim views, obtaining witness details, and making inquiries with Immigration). As a part of these inquiries, a border alert was entered into the NZ Customs database. We have seen no evidence that the Police acted outside of the scope of their powers in creating this alert. Lastly, the date stamps show Detective Sergeant McKenzie’s email was recorded in the Police database out of chronological order.
We understand you are unhappy with the actions of the Police. However, as the Authority has not seen any evidence of misconduct or neglect of duty, we will take no further action.
[41] On 23 April 2021 the PPC issued a Case Resolution Final Report in which it noted:
Mr Frank DELIU complains regarding a border alert on his name in regard to a police investigation where he states he was falsely accused and the victim did not wish charges to be laid and a warning would suffice.
The boarder [sic] alert was deemed valid given DELIU remains wanted in relation to an investigation that is current [sic] inactivated.
Det Sgt McKenzie was spoken to in relation to an email refenced [sic] in DELIU’s complaint and whereby the boarder [sic] alert is requested. NAT assessment deemed that the email simply warranted a conversation reminding Det Sgt McKenzie to be more mindful in terms of email content. A professional conversation [was] held with him in this regard.
The IPCA have categorised Cat D.
The member involved has been advised of the outcome.
Complaint against Mr Flanagan and Detective Holland
[42] On the evening of 1 February 2021 the applicant also filed an online complaint with the Police in which he alleged that Mr Flanagan and Detective Holland of the Auckland City District Financial Crime Unit, had committed offences of attempting
to pervert the course of justice. The applicant alleged that Mr Flanagan and Detective Holland had committed the offence whilst engaged in a telephone conversation with him in May 2018, in which they tried to get him to plead guilty to the charges of attempting to pervert the course of justice which had previously been laid against him, but not served on him.
[43] In their 1 February 2021 email acknowledging receipt of the online complaint, the Police online reporting team advised the applicant that once the Police had processed the report he would be sent a Police Acknowledgement Form (PAF) which would provide a Case Reference number which could be used for further communications. In support of his complaint, on either 10 or 11 February 2021 the applicant sent the Police a transcript of the telephone conversation he had with Mr Flanagan on 17 May 2018 together with a copy of the emails he and Mr Flanagan had exchanged concerning the issue of whether their conversation would be privileged. The applicant said:
Accused Flanagan and Holland conspired, [s] 116 Crimes Act 1961, and/or attempted, [s] 72 ibid, to defeat and/or pervert the course of justice, [s] 117(e) in trying to have me plead guilty to criminal charges I had not been served with based on no supporting evidence provided to me, without counsel, not in the course of a New Zealand court proceeding, on the basis of an e-mail and/or on oral advice over international telephonic lines. I so complain and look forward to hearing from the Constable assigned, thank you and good day.
[44] As noted above, in his email dated 25 March 2021 Detective Inspector Vakaruru advised the applicant that his complaints against Mr Flanagan and Detective Holland were underway and an update would follow shortly. However, having received Detective Senior Sergeant Latimer’s 16 March 2021 report he did not communicate further with the applicant.
[45] On 13 May 2022 Detective Inspector Beard provided a report to the Police District Commander of the Auckland City District regarding the applicant’s 11 February 2021 complaint against Mr Flanagan and Detective Holland.6 In his report Detective Inspector Beard concluded that there was no evidence of an offence under either s 116 or s 117(e) of the Crimes Act 1961. The Police accordingly closed
6 The online complaint is dated 10 February 2021 and was received 11 February 2021.
their file in relation to the applicant’s complaint against Mr Flanagan and Detective Holland.
Settlement of civil proceeding
[46] On 5 February 2021 the applicant commenced judicial review proceedings against the New Zealand Police in the High Court at Auckland regarding the Police investigation of the altercation at the school camp on 19 July 2017. On 7 May 2021 the applicant and the Police settled the proceeding and filed a joint memorandum with the Court advising the terms of settlement and recording that the applicant would file a notice of discontinuance, and costs would lie where they had fallen. The joint memorandum stated:
2.By agreement of the parties the defendant undertakes to close his file in relation to the alleged assault on 19 July 2017. This will take place by 12 May 2021. He accepts that the plaintiff will not now or in the future be subject to criminal investigation into this matter. Further, that whilst there was a border alert placed in relation to this allegation, it expired on 21 May 2018 and will not be renewed.
3.The parties record the fact that the applicant was never warned or interviewed in relation to this matter and maintains his innocence of the allegation.
4.The defendant agrees to amend his internal record of 21 July 2017 to reflect that at the time of this allegation the plaintiff had active charges for assault, rather than a ‘history of assault’, as currently recorded.
The applicant’s claim
[47] The applicant commenced this proceeding on 25 August 2021. In his amended statement of claim seeking judicial review he pleads several causes of action which he summarises as follows:
The Police’s refusal, or alternatively failure, to make a decision about the plaintiff’s 1 February 2021 criminal complaint against Cassin and/or the plaintiff’s 1 February 2021 disciplinary complaint against McKenzie, Cassin and Jordan and/or the plaintiff’s 10 February 2021 criminal complaint against Flanagan and Holland was a bad faith refusal to progress the plaintiff’s complaints or alternatively unreasonable in that no reasonable law enforcement agency would fail to process criminal and disciplinary complaints or alternatively breached a legitimate expectation created by virtue of the Police’s 9 February 2021 and 25 February 2021 communications to the plaintiff that action would be taken on his complaints or alternatively breached
natural justice in contravention to [s] 27 of NZBORA by virtue of delay and/or failure to communicate any decision purported to have been made.
[48] The applicant alleges that the failure or refusal by the Police to make a decision about his criminal and disciplinary complaints against the respondents was contrary to s 8 of the Policing Act 2008 which requires policing services to be provided in a manner that respects human rights.7 He says that the Police placement of the border alert was in breach of his right to liberty of the person confirmed in s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA) and also his rights recognised in s 24(a), (c), (d)–(e) and ss 25 and 27(1).
[49] The applicant alleges that the failure or refusal of the Police to act on and investigate his complaints against the respondent was “an attempt to cover up the crimes and wrongdoing by the Police and their lawyer”, contrary to ss 8(e) and (f) of the Policing Act which require policing services to be provided in an independent and impartial manner, and for Police employees to act professionally, ethically and with integrity. He further alleges that the failure or refusal of the Police to act on and investigate his complaints is in breach of s 9 of the Policing Act by failing to enforce the law and by failing to act to prevent crime by allowing criminals to escape liability.
[50]The applicant further pleads:
The Police’s decision to take no criminal action against McKenzie is in bad faith or alternatively unreasonable as he has a prima facie case to answer or alternatively failed to take into account relevant considerations, namely the Solicitor-General Prosecution Guidelines 2013 Evidential and Public Interest Tests for Prosecution or alternatively breached natural justice in contravention to [s] 27 of NZBORA in not giving reasons.
[51]By way of relief the applicant seeks:
(a)Judgment against the Police.
(b)A ruling that the Police wrongly decided the applicant’s criminal complaint against Detective Sergeant McKenzie and failed to decide the applicant’s criminal complaint against Sergeant Cassin, his
7 Section 8(d).
disciplinary complaints against Detective Sergeant McKenzie, Sergeant Cassin and Detective Jordan and/or his criminal complaints against Mr Flanagan and former Detective Holland.
(c)An order quashing the Police decision dated 25 February 2021.
(d)“Baigent’s relief” in the form of a declaration that the second respondent has denied the applicant’s access to justice in breach of his right to natural justice as confirmed in s 27 of the NZBORA.
(e)A writ of certiorari to issue requiring the Police to reconsider the applicant’s criminal complaint dated 1 February 2021 against Detective Sergeant McKenzie by means of a fresh process conducted by a “new” or fresh constable, and a writ of mandamus to issue requiring the Police to investigate and decide the applicant’s complaints against the respondents.
(f)An order directing the Police that its decisions regarding reconsideration of the applicant’s criminal complaint against Detective Sergeant McKenzie and investigations of Sergeant Cassin, Mr Flanagan and former Detective Holland and the disciplinary investigations be conducted in a manner “not inconsistent with the learned opinion of this Honourable Court”.
(g)An order by way of a warning to the Police that their fresh decisions in relation to the applicant’s complaints as pleaded must actually consider and properly address the alleged crimes and disciplinary issues lest they be held in contempt of court.
(h)An order for costs, and/or such other relief as the Court considers just.
The applicant’s submissions
The complaints against Detective Sergeant McKenzie, Detective Jordan and Sergeant Cassin
[52] The applicant submits that in dealing with his complaint regarding Detective Sergeant McKenzie, Detective Jordan, and Sergeant Cassin over the placement of the border alert, the Police acted with bad faith and in a manner that was unreasonable for a law enforcement agency by effectively ignoring his complaint. He says that as a public body, the Police must act reasonably, and a rudimentary element of reasonableness must be to not refuse or otherwise fail to fulfil or perform its most basic functions, namely considering criminal complaints made to them by a member of the public. Moreover it cannot be reasonable for the Police to refuse to even consider disciplining police officers for what is prima facie misconduct.
[53] The applicant further submits that the Police acting in bad faith could not be due to a simple case of oversight, as the complaints raised both criminal and disciplinary issues involving all three police officers, and he says that in any event it was bad faith or unreasonable for the Police to take no criminal or disciplinary action against Detective Sergeant McKenzie and/or fail to give him reasons why it took no criminal action against him. He says that the Police had created a legitimate expectation that they would at least investigate Detective Sergeant McKenzie and Detective Jordan, and they failed to do so.
[54]The applicant submits that:
The refusal or failure is additionally or alternatively contrary to effective policing reliant on a wide measure of public support and confidence because if the Police are willing to act to protect their own then the public will view them as a rogue entity …..and not a legitimate enforcer of the law.
[55] He further submits that the Police failure to act on or to investigate his complaints, and the placement of the border alert, breached his human rights as confirmed by ss 22, 24(a), (c), (d)–(e), 25 and 27 of the NZBORA.
[56] Relying on s 27 of the NZBORA, the applicant submits that having complained to the Police that he was the victim of criminal offending by Detective Sergeant
McKenzie, the Police were required to provide him with reasons for their decision finding that no criminal offence had been committed. He submits that providing him with advice of the decision not to take any further action against the police officers against whom the complaints were made does not satisfy the obligation on the Police to provide the applicant with the reasons for the decision. And he says the rationale for the requirement that decision makers give reasons is to enable persons affected by decisions to see how the decision was reached and consider whether or not some error was made affecting the validity of the decision, as well as imposing a discipline on decision makers by the knowledge that the process of their decision-making will be exposed to analysis by those affected by it, and assist any appellate authority where there is a right of appeal.
[57] The applicant says that following the Police decision not to take any criminal action against Detective Sergeant McKenzie and not to give him any reasons or explanation for the decision has left him not knowing whether or why his criminal complaint was misguided. He says that quite apart from the sense of grievance this has caused him, the failure of the Police to give any reasons for their decision means that the Court cannot on review properly exercise its supervisory function.
[58] The applicant submits that the Police decision finding that Detective Sergeant McKenzie did not commit any criminal offence cannot withstand rational scrutiny having regard to the provisions of s 116 of the Crimes Act which creates the offence of conspiring to defeat the course of justice. He submits that there can be no argument that Detective Sergeant McKenzie placed the border alert for reasons of vengeance against the applicant because of the complaints and private prosecutions he had made against his Police colleagues, rather than for legitimate law enforcement purposes. And he submits that as Detective Sergeant McKenzie had no direct involvement in the Police investigation of the alleged assault on 19 July 2017, the Court should infer that the directions he gave for the border alert to be put in place were motivated by malice towards the applicant and not because of any genuine Police operational considerations. The applicant alleges that Detective Sergeant McKenzie’s action of requesting Sergeant Cassin to put the border alert in place amounts to an attempted conspiracy between them to make a false allegation against him — that being an offence pursuant to s 115 of the Crimes Act.
[59] The applicant says that while he does not seek a determination of the Court on the issue of whether Detective Sergeant McKenzie committed that offence or should be charged with that offence, he submits nevertheless that it is for the Court to ensure that the complaints he made to the Police are properly investigated.
[60] He says that in any event the school camp assault allegation had been assessed as being minor in terms of its gravity, and the investigation was not being actively pursued at the time the border alert was put in place. The applicant says that Detective Sergeant McKenzie was not directly involved in the investigation into the school camp assault, and by acting as he did he usurped the function of the police officer who had actual responsibility for the conduct and management of the file.
[61] In relation to his legitimate expectation ground of review, the applicant notes that Detective Inspector Vakaruru sent him an email on 9 February 2021 informing him that:
The matters you have highlighted will be reviewed against our Investigative Best Practice in light of the Judicial commentary on Detective Sergeant McKenzie and Detective Jordan’s, actions.
I will forward an update on where your matter will be investigated and who the point of contact will be.
[62] The applicant says that the promise made in the final sentence of Detective Inspector Vakaruru’s email was not kept. He submits that he had been given a clear and unequivocal undertaking that at least Detective Sergeant McKenzie and Detective Jordan would be investigated, and says that the Police should be required to honour their undertaking especially to the extent that doing so would not conflict with their other legal duties.
[63] The applicant also alleges that the delay by the Police in undertaking an investigation into his criminal and disciplinary complaints against Sergeant Cassin is in breach of s 27 of the NZBORA. He notes that the complaints were made in February 2021 and over a year has passed without them having been considered, and that delay is unlawful.
The complaint made against Mr Flanagan and former Detective Holland
[64] The applicant submits that during the telephone conversation he had with Mr Flanagan and Detective Holland on 17 May 2018, Mr Flanagan sought to have him plead guilty to the two charges of attempting to pervert the course of justice. He says that this took place in circumstances in which: he had not been served with the charges; he had not been served with any prosecution evidence in support of the charges; he was not legally represented; and despite Mr Flanagan having several months ago previously asserted that the applicant was unfit to enter pleas to some other charges he was facing.
[65] The applicant submits that Mr Flanagan’s invitation to him to plead guilty to the perversion charges amounted to prosecutorial misconduct. He says the situation was exacerbated and more serious because he was unrepresented by counsel during the telephone conversation and because Mr Flanagan appeared to have considered that he had been mentally unwell. He says that it is clearly improper for a prosecutor to seek guilty pleas from a defendant who had not been served with the charges or provided with disclosure of the prosecution evidence supporting the charges.
[66]The applicant submits that:
… Flanagan’s extortive attempt to have me plead guilty in such egregious circumstances, on Holland’s instructions, rises to the level of criminal conduct on their part.
[67] The applicant’s first cause of action regarding his complaint about Mr Flanagan and Detective Holland alleges that the Police acted with bad faith or unreasonably by simply ignoring his complaint and failing to investigate it. The applicant says again here, that he does not seek a determination by the Court as to whether Mr Flanagan and/or Detective Holland committed any criminal offence, but he submits it is for this Court to ensure that his complaint to the Police is properly and lawfully investigated and dealt with. He says that Mr Flanagan and Detective Holland “cannot be allowed to escape at least a proper investigation which to date they have not been subjected to”.
[68] In respect of his cause of action based on legitimate expectation, the applicant refers to the correspondence he was sent on 25 February 2021 by Detective Inspector Vakaruru informing him that consideration of his complaint against Mr Flanagan and Detective Holland was underway and he would shortly be sent an update. He says that this was a clear and unequivocal undertaking that Mr Flanagan and Detective Holland would be investigated, and they have failed to do so. The applicant also relies on the delay by the Police in failing to progress his complaint against Mr Flanagan and Detective Holland as a breach of his right to justice as affirmed by s 27 of the NZBORA.
The second to sixth respondents’ submissions
[69] Mr Jones for the second to sixth respondents submits that in deciding whether to investigate the applicant’s complaints, the Police acted within the bounds of their discretion, and that the decisions they made were reasonably open to them to make. He says that there is no evidence that the decisions made by the Police were made in bad faith. And he submits that the right to natural justice affirmed by s 27 of the NZBORA does not apply to circumstances in which the Police investigated alleged criminal offending, considered the applicant’s complaint and made a decision not to take any further action.
[70] Mr Jones submits that there was no requirement for the Police to expressly refer to the Solicitor-General’s Guidelines for Prosecution when determining whether to commence or continue an investigation into the matters raised by the applicant’s complaints. The guidelines are of most relevance when an investigation has been conducted and the point is reached where a decision is to be made as to whether to prosecute or not. Nevertheless, the fact that the Police concluded that there was no evidence of criminality makes it clear that they considered that there was no reasonable prospect of conviction.
[71] Counsel noted that the applicant has brought separate civil proceedings against the Police and several individual police officers in relation to the 22 January 2018 email in which he alleges that they and the Police are guilty of misfeasance in public
office, and that those proceedings are yet to be heard and determined.8 Mr Jones says that because of the challenge to Detective Sergeant McKenzie’s conduct made in that separate proceeding, it would not be appropriate for the respondents to present evidence in this judicial review proceeding as to Detective Sergeant McKenzie’s reasons for sending his 22 January 2018 email to Sergeant Cassin, and what significance or impact it may have had regarding the criminal investigation then underway against the applicant.
[72] Mr Jones submits that the Police dealt with the applicant’s complaints in accordance with Police guidelines on the instructions and best practice requirements and standards applicable to the investigation of complaints, together with the Police guidelines regarding the disciplinary process for dealing with complaints against Police. He notes that in the case of Police internal investigations into alleged Police misconduct an initial assessment is conducted to identify whether a disciplinary or other process is appropriate. The options being: no further action required; referring the matter to the Police Human Resources section to determine the next steps in relation to initiating an employment investigation; and where possible criminal offending is involved the PPC with the possibility of an alert to the IPCA.
[73] The respondents submit that the duties on the Police carrying out their functions are public law duties directed to the protection and welfare of the public, and they are not private duties such as to give rise to a duty of care owed to individuals and to civil liability to an affected individual. Mr Jones submits that the Police have a wide discretion as regards the manner in which they discharge their duties to the public, including the investigation or non-investigation of complaints received from the public. And although the courts are willing to review the way in which the Police make investigative decisions the courts will not order the Police to commence an investigation or further investigate a matter.
[74] Mr Jones submits as regards Detective Sergeant McKenzie’s 22 January 2018 email, that the Police did investigate the applicant’s complaint and in doing so took into account Palmer J’s observation that having regard to the evidence that Detective
8 Deliu v Meredith Connell (CIV 2019-404-1098).
Sergeant McKenzie proposed to arrest the applicant because he had been making complaints to the IPCA and taking private prosecutions against Police, causes of action alleging misfeasance in public office and abuse of process, had an evidential foundation and were reasonably arguable.9 The respondents submit that the reasonableness of the decision made by the Police that the email did not establish any criminal conduct on the part of Detective Sergeant McKenzie or any of the other officers involved, is supported by the same conclusion being independently reached by the IPCA.
[75] Mr Jones submits that taken at its highest, the email is simply evidence that a police officer asked another to progress a Police investigation which was already underway. Counsel submits that while the email could arguably be considered to have indicated the presence of improper motives, the decision made by the Police that sending the email did not involve any criminality on the part of Detective Sergeant McKenzie was one that was open to Police to reach. Mr Jones says that the Police decision was made having regard to the possibility of criminal and disciplinary consequences arising from the contents of the email, so that both aspects of the applicant’s complaint were addressed and dealt with. He says that the Police decision was made on 17 February 2021 and the applicant was promptly notified on 25 February 2021, so there was no delay involved in notifying him of the decision.
[76] However, Mr Jones acknowledges that the applicant was not notified of the outcome of his complaints against Sergeant Cassin and Detective Jordan and says that while it would have been better had he been, the fact that the Police had decided that Detective Sergeant McKenzie as the author of the email had not engaged in any criminal offending and no further investigation would be undertaken, would also have alerted the applicant to the fact that it had been decided that no further investigation of the officers to whom the email was addressed or copied to was required.
[77] Mr Jones submits that the applicant has failed to provide evidence to overcome the high evidential burden of showing that the Police decision was made in bad faith;
9 Deliu v Chapman [2020] NZHC 2100 at [30].
that it was made in the knowledge that there were no grounds for the decision; or that it was knowingly made in error.
[78] As regards the telephone conversation between the applicant and Mr Flanagan and Detective Holland in May 2018, the respondents submit that the Police acted within their discretion in deciding that there was no evidence of Mr Flanagan and Detective Holland having acted in a manner amounting to attempting to pervert the course of justice by having the applicant plead guilty to the criminal charges which had been laid, but not served on him. Mr Jones says that Detective Inspector Vakaruru’s decision to take no further action to investigate the allegations having regard to the same reasons as had been previously expressed by the IPCA, was reasonable and open to him to make in the circumstances.
[79] Counsel notes that while Detective Inspector Vakaruru did not make a decision specifically as regards Mr Flanagan, Detective Inspector Beard has since reviewed the applicant’s complaint and has concluded that there is no evidence of an offence under either s 116 or s 117(e) of the Crimes Act having been committed or that any further investigation of the complaint was warranted in relation to Mr Flanagan and Detective Holland. Mr Jones submits that the applicant has failed to produce any evidence to support his allegation that Mr Flanagan and Detective Holland engaged in an attempt to pervert the course of justice by having him admit the filed but yet to be served charges he is facing of attempting to pervert the course of justice, and there is therefore nothing to support the claim that the decision was unreasonable or lacked any adequate foundation.
[80] Mr Jones acknowledges that while it would have been better had Detective Inspector Vakaruru notified the applicant promptly following the decision he made, the applicant has nevertheless been notified in the course of these proceedings as to the decision that was made and subsequently confirmed by Detective Inspector Beard.
The law — Police discretion
[81] The duties carried out by police officers are public law duties directed at the protection and welfare of the public at large. They should not be confused with a private law duty, such as a duty of care which may give rise to civil liability to an
affected individual.10 The Police have a wide discretion as to the manner in which they discharge the duty owed to the public of enforcement of the law, and carry out their functions as prescribed in s 9 the Policing Act.
[82]In Sathyan v Commissioner of Police, Clark J observed:11
[12] There is a wide discretion as to the manner in which the duty of law enforcement owed to the public is discharged. Decisions about use of police resources are for the Commissioner alone. The courts will not involve themselves in the careful balancing exercise which the Commissioner must engage in when deciding the use of limited resources.
[83]Similarly in LP v Attorney-General, Nation J said:12
[51] It is well established that the Courts will not interfere with decisions which the Police make as to operational matters and as to whether and how they might investigate a complaint made by a member of the public.
[52] The decision made by the Police, not to investigate the complaints in the way the plaintiff wants, was based on Police assessment as to the evidence that would be available to substantiate such complaints. … There is nothing in the documents before me or in allegations made in the statement of claim to suggest that the opinions reached by relevant Police officers were the result of personal antipathy towards the plaintiff.
[84] The relevant principles and approach were explained by Lord Denning in Regina v Commissioner of Police of the Metropolis ex parte Blackburn where he said:13
I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or no suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. But in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. …
Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the
10 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [11].
11 Sathyan v Commissioner of Police [2015] NZHC 3138, [2016] NZAR 175 (footnotes omitted).
12 LP v Attorney-General [2016] NZHC 169, [2016] NZAR 511. This reasoning was applied in
Butcher v New Zealand Serious Fraud Office [2021] NZHC 276 at [29].
13 R v Commissioner of Police of the Metropolis, ex parte Blackburn (No1) [1968] 2 QB 118 (CA) at 136.
chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter.
[85] Lord Denning’s decision was later referenced by Lord Keith in Hill v Chief Constable of West Yorkshire:14
By common law police officers owe to the general public a duty to enforce the criminal law … That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is discharged. It is for him to decide how available resources should be deployed, whether particular lines of inquiry should or should not be followed and even whether or not certain crimes should be prosecuted. It is only if his decision upon such matters is such as no reasonable chief officer of police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review.
Discussion and analysis
The complaints against Detective Sergeant McKenzie, Detective Jordan and Sergeant Cassin
[86] As I have noted, in January 2018 the applicant was facing two charges of assault with a weapon relating to an incident alleged to have occurred a year earlier on 20 January 2017 at the premises of Amicus Law. The applicant’s trial on the charges had originally been scheduled to proceed during the week commencing 22 January 2018, although because of court scheduling and judicial resource issues the fixture had been vacated and the 22 January hearing was a callover to set a new trial date.
[87] At the callover on 22 January 2018, the applicant’s counsel advised that the applicant had left New Zealand and had no immediate plans to return. It appears that prior to the callover hearing on 22 January the Police and the Auckland Crown Solicitor’s office who were prosecuting the matter were unaware that the applicant had departed New Zealand and was apparently not intending to return.
[88] Detective Sergeant McKenzie and Detective Jordan, who were members of the Major Crime Team at Auckland Central Police Station, were both involved in the Police inquiry and prosecution of the applicant on the assault with a weapon charges
14 Hill v Chief Constable of West Yorkshire [1989] 1 AC 53 (HL) at 59.
which had originally been scheduled for hearing that day. Shortly after the hearing and a discussion with Detective Sergeant McKenzie, presumably concerning the implications of the applicant’s sudden departure from New Zealand and non- appearance at Court that morning, Detective Jordan carried out checks on the applicant’s immigration status and bail conditions. Having done so, she reported back to Detective Sergeant McKenzie in her email sent at 10.59 am in which she said that she had noted that the Police had a current WTI (wanted to interview) note on his file. This related to the school camp assault complaint file relating to the applicant’s alleged offending on 19 July 2017 and which was yet to be finalised, although the complainant had advised the Police that he only wanted the applicant to be warned and not charged.
[89] It was therefore in this context that Detective Sergeant McKenzie sent his email to Sergeant Cassin at 11.03 am on 22 January 2018 which the applicant says shows that he acted in bad faith and maliciously towards the applicant, and misused Police power by arranging to place a border alert against the applicant for reasons unrelated to legitimate Police purposes.
[90] It is clear from Detective Sergeant McKenzie’s email to Sergeant Cassin that he had ascertained that Sergeant Cassin was the officer in charge of the investigation of the alleged school camp assault and that the file had been “inactivated” although remained open with a WTI for the purpose of the Police speaking to the applicant about that matter. Knowing that the applicant had recently departed New Zealand and there was uncertainty as to whether or when he might return, Detective Sergeant McKenzie was obviously concerned to know if and when the applicant returned to New Zealand. Moreover, it is clear that Detective Sergeant McKenzie’s principal reasons for suggesting that Sergeant Cassin progress the school camp assault complaint were so that the applicant could be arrested on his return to New Zealand and related to the fact that he was being prosecuted on assault and fraud charges.
[91] It also appears that having regard to the information gathered by Detective Jordan following the callover hearing that morning, that Detective Sergeant McKenzie considered that although the applicant’s failure to appear at Court that morning did not provide a sufficient basis for the placement of a border alert, the school camp assault file and the WTI already in place would. Detective Sergeant McKenzie accordingly
suggested to Sergeant Cassin that the school camp assault file should be progressed so that the applicant could be arrested should he return to New Zealand. It would appear that seeing that the school camp assault file was inactivated, Detective Sergeant McKenzie sought to encourage Sergeant Cassin to progress the matter by mentioning that the applicant was a lawyer who had been making IPCA complaints and taking private prosecutions against Police staff.
[92] Whether the applicant was a lawyer who had been making complaints to the IPCA and taking private prosecutions against Police staff was clearly of no relevance to whether or how Sergeant Cassin and the Police progressed the school camp assault complaint, either by warning the applicant or laying a charge. Having received Detective Sergeant McKenzie’s 11.03 am email, Sergeant Cassin immediately contacted the complainant who confirmed to him that he only wanted the applicant to be warned. Having spoken to the complainant, Sergeant Cassin then arranged for a border alert to be put in place against the applicant’s name. Significantly, the border alert he put in place was not one requiring that the applicant be arrested on arrival in New Zealand as had been suggested by Detective Sergeant McKenzie, but was simply a “monitor alert” that required that the Police staff who had requested the alert be notified in the event that the applicant entered New Zealand.
[93] I am satisfied that although by reason of the assault with a weapon charges brought against the applicant, Detective Sergeant McKenzie had a legitimate interest in knowing if and when the applicant returned to New Zealand, his reference to the applicant being a lawyer and having made complaints to the IPCA were matters wholly irrelevant to how the Police should proceed in relation to any investigation or prosecution of the applicant, and to how Sergeant Cassin should proceed in relation to the alleged school camp assault complaint and it was improper and unprofessional of him to do so.
[94] However, Detective Sergeant McKenzie’s information that the applicant was also facing assault charges arising from a separate incident was relevant to Sergeant Cassin’s assessment of whether the school camp assault complaint should be treated as a single and isolated occurrence, or whether it was an instance of similar behaviour on the part of the applicant. Such a consideration would be relevant to the decision
regarding how to proceed with the school camp assault complaint, and whether it should appropriately be resolved on the basis of a warning being given to the applicant, or whether further consideration should be given to a prosecution.
[95] In my view Sergeant Cassin acted professionally and independently of Detective Sergeant McKenzie in relation to the school camp assault complaint, by first ascertaining the view of the complainant, and then arranging the placement of a border monitor alert to inform him in the event of the applicant’s return to New Zealand, and thus enable him and his staff to locate and interview the applicant. That process and the placement of a border monitor alert was in my view within the scope of the proper use of Police powers to investigate alleged criminal offending.
[96] It is also clear from an examination of the sequence of events and actions of Detective Sergeant McKenzie, Detective Jordan, and Sergeant Cassin that there is no evidence to suggest that they conspired or acted together in an unlawful and malicious manner towards the applicant to have him arrested should he return to New Zealand. Although of no relevance to the decision that Sergeant Cassin made to request a border monitor alert, Detective Sergeant McKenzie’s advice that the applicant was a lawyer with a history of making complaints to the IPCA was correct. Furthermore, the information that the applicant was also facing other assault charges would have been relevant to Sergeant Cassin’s decision as to whether or what further action should be taken regarding the school camp complaint given that the applicant had recently departed New Zealand. Moreover, assuming that Sergeant Cassin had agreed to let Detective Sergeant McKenzie or his staff know in the event that the border monitor alert resulted in the Police being advised that the applicant had re-entered New Zealand, given Detective Sergeant McKenzie’s legitimate interest in the whereabouts of the applicant by reason of the Amicus Law assault charges that were yet to be determined, the exchange of such information would be a proper and lawful use of the information by the Police officers involved.
[97] Following receipt of the applicant’s 1 February 2021 disciplinary and criminal complaints against Detective Sergeant McKenzie, Sergeant Cassin and Detective Jordan, the Police considered his complaint and reviewed their Police files. They
concluded that Detective Sergeant McKenzie did not commit any criminal offences and that no further investigative action was necessary.
[98] In the case of Police decisions not to prosecute an offence, in the absence of evidence showing that the decision was made on the basis of malice or personal antipathy towards the complainant, the court will not interfere with the decision given the wide discretion held by Police and where it was reasonable for the Commissioner of Police to have made that decision.
[99] I find that the applicant has failed to show that the Police decision was made in bad faith. I also find that the applicant has failed to show that the Police decision was unreasonable and one which no reasonable law enforcement agency could make as regards either the criminal complaint or the disciplinary complaint. Having found that there is no evidence of any improper or criminal collusion on the part of the three police officers, it follows that there is no evidence to support the applicant’s allegation that the decision by the Police was unreasonable in the sense that no reasonable law enforcement agency could have reached that conclusion.
[100] Although when notifying the applicant of the decision on 25 February 2021 the Police only referred to Detective Sergeant McKenzie and made no specific reference to Sergeant Cassin, it is implicit in the decision that Detective Sergeant McKenzie had not committed any criminal offence, that the other police officer he was alleged to have conspired with had also not committed any criminal offences. Nevertheless, having received a complaint from the applicant against Sergeant Cassin and Detective Jordan as well as Detective Sergeant McKenzie, the Police erred by failing to directly address those other complaints when advising the applicant of the decision they had made. That failure does not however invalidate the decision which was obviously made that the Police had found that there was no evidence that Sergeant Cassin or Detective Jordan had committed any criminal offence in connection with matters contained in the 22 January 2018 email sent by Detective Sergeant McKenzie.
[101] As regards the applicant’s disciplinary complaint against Detective Sergeant McKenzie, Sergeant Cassin and Detective Jordan, the Police clearly investigated it and made a reasonable and appropriate decision as regards Detective Sergeant
McKenzie that his referring to the applicant as a lawyer who had made IPCA complaints was inappropriate, and that he needed to be “more mindful” about what he wrote in his emails. The Police National Assessment Team concluded on 17 February 2021 that a “learning conversation” with Detective Sergeant McKenzie was the appropriate outcome, and noted that it had already occurred.
[102] There is no evidence of any professional misconduct on the part of the three police officers that would have required the initiation of a disciplinary process, and I find that the Police response to the applicant’s disciplinary complaint was proper, prompt, and appropriately thorough. The decision that the appropriate outcome in the case of Detective Sergeant McKenzie was a “learning conversation” was also in my view a reasonable and proportionate response to what was no more than an unwise reference to irrelevant, albeit accurate information regarding the applicant.
[103] I also find that the applicant has failed to show that Police acted unlawfully by failing to take the Solicitor-General’s Prosecution Guidelines into account. The guidelines have broad application including decisions as to whether criminal proceedings should be commenced,15 and describe the test for whether a prosecution should be initiated or continued as being only where a prosecutor is satisfied that the evidence which can be adduced in Court would be sufficient to provide a reasonable prospect of conviction, and whether a prosecution is in the public interest. It is only once a prosecutor has decided that the sufficiency of evidence test is satisfied that he or she then moves on to consider the public interest test. Here where the Police clearly and quite reasonably found there was not sufficient evidence to provide a reasonable prospect of conviction, there was no need for them to make any express reference to the Solicitor-General’s Guidelines when informing the applicant of the decision.
Section 27 of the NZBORA
[104] As regards the applicant’s claim that the Police breached the provisions of s 27 of the NZBORA in failing to comply with the rules of natural justice by failing to provide him with detailed reasons for the decision, s 27(1) of the NZBORA provides:
15 Solicitor-General’s Prosecution Guidelines (Crown Law Office, 1 July 2013) [Prosecution Guidelines] at [1.2.1].
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.
[105] In White v Attorney-General the Police had decided not to further investigate or prosecute a complaint of perjury and criminal offending made in relation to a witness’s evidence in civil proceedings.16 Dealing with whether there was an obligation on the Police to comply with the rules of natural justice and provide reasons for their decision not to prosecute the party against whom the complaint was made, Associate Judge Bell said:
[62] When Police are investigating possible criminal offending, they are not required to apply the principles of natural justice. That has been upheld in cases where suspects and offenders have alleged a breach of natural justice by the police when investigating alleged offending. Sometimes suspects have complained that the police have not put them on notice of the evidence which the police hold against them. But offenders have consistently failed in their complaints that the police are required to observe the principle[s] of natural justice when investigating alleged offending. Just as offenders cannot [complain] that the police are required to observe natural justice, similarly those who claim to be victims of criminal offending have no greater claim for the police to observe the principles of natural justice.
[106] I respectfully agree with Associate Judge Bell. When investigating alleged or suspected offending and prior to making a decision to prosecute someone for criminal offending it would be quite impractical if the Police were required to apply the principles of natural justice including giving reasons for a decision to prosecute, or not prosecute. The making of a decision to prosecute is required to be made in accordance with the Solicitor-General’s Prosecution Guidelines which requires the prosecutor to consider if there is sufficient evidence to provide a reasonable prospect of conviction, and is ultimately a matter to be considered by the court determining the charges. Given the criminal process by which charges are determined by the court, it would significantly disrupt and frustrate the efficient conduct of Police investigations were they required in each case to provide reasons for decisions to prosecute or not prosecute, and there is no substantive utility in the imposition of an obligation on the Police to also comply with the rules of natural justice by providing reasons when the cogency and sufficiency of the evidence relied on to found a prosecution is the very issue that will be determined by the court.
16 White v Attorney-General [2020] NZHC 740.
[107] Nevertheless, there are circumstances in which it is appropriate for a prosecutor to give their reasons for bringing or not bringing a prosecution. The Solicitor- General’s Prosecution Guidelines provide for those circumstances where it is appropriate for a prosecutor to make a statement explaining the reasons for a decision to prosecute or not to prosecute. Such situations are most likely to arise in relation to matters of significant public interest and the statements made in those circumstances will give broad reasons for why the decision to prosecute or not prosecute was made.17
[108] A recent case in which this Court found that it was necessary for the prosecution to provide its reasons for not undertaking a prosecution is Wallace v The Attorney-General in which the mother of a man shot and killed by Police brought a claim against the Crown relating to his death.18 In finding that the prosecution was required to provide reasons for its decision not to prosecute anyone for Mr Steven Wallace’s death, Ellis J followed Regina v Director of Public Prosecutions, Ex parte Manning in which the Divisional Court held that the Director of Public Prosecutions was required to provide reasons for not prosecuting where a prisoner had died in custody while under restraint following an altercation with two prison officers.19
[109] A coronial inquest in Manning had found that the prisoner’s death was an unlawful killing caused by the application of excessive force to his neck by a prison officer.20 The prosecutor subsequently declined to lay charges, and the deceased prisoner’s family was advised that there was insufficient evidence to justify a prosecution or have a realistic prospect of conviction. The Court held that there was a duty on the prosecutor to provide reasons for the decision not to prosecute because: the case involved a death in custody; there had been a verdict of unlawful killing by the coronial inquest; and there was credible evidence identifying the responsible prison officer. Addressing the question of when a prosecutor will be required to provide reasons for not undertaking a prosecution Lord Bingham said:
[33] It is not contended that the Director is subject to an obligation to give reasons in every case in which he decides not to prosecute. Even in the small and very narrowly defined class of cases which meet Mr Blake’s conditions set out above, we do not understand domestic law or the jurisprudence of the
17 Prosecution Guidelines, above n 15, at [6.1].
18 Wallace v The Attorney-General [2021] NZHC 1963.
19 Regina v Director of Public Prosecutions, Ex parte Manning [2001] QB 330.
20 At 332.
European Court of Human Rights to impose an absolute and unqualified obligation to give reasons for a decision not to prosecute. But the right to life is the most fundamental of all human rights. It is put at the forefront of the Convention. The power to derogate from it is very limited. The death of a person in the custody of the State must always arouse concern … and if the death resulted from violence inflicted by agents of the State that concern must be profound.
[110] Justice Ellis in Wallace found that the Solicitor-General was required to provide reasons for not prosecuting in the circumstances of the case, including because Mr Wallace had died at the hands of an agent of the state and accordingly his right to life was engaged.21 Quite obviously the factual circumstances here are far removed from those in Manning and Wallace and those cases illustrate that the circumstances in which a prosecutor will be required to provide reasons for a decision not to prosecute a matter are very limited if not rare.
[111] For these reasons I find that the applicant has failed to establish any of the pleaded grounds of review in respect of the Police decision not to further investigate or prosecute the named police officers and in respect of Police decisions related to the disciplinary complaints made against the three officers.
The complaint against Mr Flanagan and Detective Holland
[112] An examination of the transcript of the telephone conversation of 17 May 2018, and the preceding emails exchanged between the applicant and Mr Flanagan, clearly shows that there was nothing improper about how Mr Flanagan conducted himself during the conversation. There is no suggestion or evidence to show that Mr Flanagan endeavoured to have the applicant plead guilty to the attempting to pervert the course of justice charges which had been filed by the Police but which had not been served on him.
[113] It is clear from the emails exchanged prior to the 17 May telephone conversation that both parties expressly agreed that they were proceeding on the basis that s 57(2A) of the Evidence Act 2006 applied, and that as parties to the criminal proceedings brought against the applicant, their plea discussions were privileged.
21 At [603]–[606].
[114] I reject the applicant’s submission that Mr Flanagan should not have spoken to him about the prospect of entering pleas because the applicant was unrepresented by counsel during the telephone conversation. The applicant had previously intimated that he might arrange to have counsel for the telephone conference, but he had obviously decided against it, and he was quite happy to proceed with the telephone conference on his own. It is also clear that the applicant is a lawyer with extensive experience in criminal law and proceedings, and during the telephone conference he showed that he was well able to protect his own interests.
[115] Mr Flanagan did not say anything during the telephone conference which could reasonably be interpreted as attempting to apply any pressure on the applicant to adopt any particular course, including entering pleas of guilty to the unserved charges. In my view it is quite clear that all that Mr Flanagan was doing was to see whether there was any basis upon which the applicant wanted to resolve all of the charges he was facing. In the event that agreement on those matters was reached, implementing any arrangement would still have to occur at a later date, so that there was no possibility of the applicant’s legal position on any of the charges being formally determined or his interests compromised in the course of the conversation.
[116] As the transcript of the telephone conference makes clear, Detective Holland took no active part in the discussion, and there is no evidence to suggest that she was anything other than an observer. There is quite simply nothing in the contents of the telephone conversation or in the relevant emails which preceded or followed the conversation that provides any support for the applicant’s allegation that Mr Flanagan and Detective Holland had conspired to pervert the course of justice by having the applicant plead guilty to the yet to be served criminal charges of attempting to pervert the course of justice.
[117] The Police who considered the applicant’s complaint against Mr Flanagan and Detective Holland had the written transcript of the telephone conference and the emails exchanged between the applicant and Mr Flanagan, and this material would have ensured they were able to make a well informed assessment of the nature and content of the discussion.
[118] Following receipt of the applicant’s 1 February 2021 online complaint against Mr Flanagan and Detective Holland, and having acknowledged receipt of the complaint, Detective Inspector Vakaruru failed to notify the applicant that following receipt of Detective Senior Sergeant Latimer’s 16 March 2021 report, he had decided not to investigate the complaint further because the issues that arose were best dealt with in the context of the court hearing of the attempting to pervert the course of justice charges that had been filed but were yet to be served. While a decision to leave the issues raised by the complaint for determination in the course of the hearing of the charges was reasonable, the failure to notify the applicant of that decision was an error on his part and not justifiable. As a result the applicant was not provided with any information regarding the outcome or progress of his complaint which he was entitled to receive within a reasonable time once a decision had been made not to investigate the matter any further.
[119] However, I do not consider Detective Inspector Vakaruru’s decision not to further investigate the complaint following his receipt of Detective Senior Sergeant Latimer’s 16 March 2021 report was an error or failure such as vitiated the Police decision in response to the complaint. When following the commencement of this proceeding it was realised by the Police that the applicant had not been informed of the outcome of his complaint against Mr Flanagan and Detective Holland, Detective Inspector Beard reviewed the complaint and concluded that there was no evidence of any offending by Mr Flanagan and Detective Holland against either ss 116 or 117(e) of the Crimes Act, and that decision was notified to the applicant.
[120] Although the applicant submits that Detective Inspector Beard’s decision should be ignored for present purposes because the original decision made by Detective Inspector Vakaruru is the only decision which is challenged, I consider that it is relevant. From Detective Inspector Vakaruru’s evidence it is apparent that he limited his consideration of the complaint to the matters identified by Detective Senior Sergeant Latimer and the recommendation that the issues be left to be decided in the context of the court hearing of the charges, and so he did not directly address the merits of the matter.
[121] Detective Inspector Beard’s review was the first time that the merits of the complaint were assessed by the Police and his decision was made following his consideration of the transcript and relevant email correspondence. His conclusion that there is no evidence of a criminal offence having been committed is one which was open to him to make and reasonable. Having regard to the contents of the material before me the decision made by Detective Inspector Beard was the only rational and reasonable decision that could possibly have been made. Having made that decision, there was no need for the Police and in particular Detective Inspector Beard to specifically refer to the provisions of the Solicitor-General’s Prosecution Guidelines. The issue of whether the Police considered there to be sufficient evidence to provide a reasonable prospect of a conviction was implicitly considered by Detective Inspector Beard when he decided that there was no evidence of any criminal offending by either Mr Flanagan or Detective Holland.
[122] I accordingly find that the applicant has failed to show that the allegations that the Police decision to reject his complaint against Mr Flanagan and Detective Holland and that it did not warrant conducting any further investigation, was a decision made in bad faith, or that it was unreasonable. I also find that the applicant has failed to show that the Police did not take the relevant provisions of the Solicitor-General’s Prosecution Guidelines into account. I further find that the Police were under no obligation to provide the applicant with reasons for their decision to dismiss the applicant’s complaint against Mr Flanagan and Detective Holland, and that there was no breach of s 27(1) of the NZBORA.
[123] I accordingly find that the applicant has failed to establish any of the pleaded grounds of review in respect of the Police decision not to further investigate his complaint of criminal offending by Mr Flanagan and Detective Holland.
Result
[124] Each and all of the applicant’s claims for judicial review and relief are dismissed, and judgment is entered for the respondents.
Costs
[125] The second to sixth respondents having succeeded at the hearing are entitled to an award of costs.
[126] I direct the parties to file memoranda as to costs. The memoranda are not to exceed three pages in length apart from the title page and any attached schedule or disbursement related documents. The second to sixth respondents’ costs memorandum is to be filed and served within 10 working days of the date of delivery of this judgment. Service on the applicant may be effected by email to the address used by the applicant in his filings and correspondence to the Registrar.
[127] The applicant’s costs memorandum is to be filed within 10 working days following service of the second to sixth respondents’ cost memorandum to his email address.
[128] Upon receipt of the parties’ costs memoranda in accordance with the provisions of these directions I shall determine costs on the papers.
Paul Davison J
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