Deliu v Independent Police Complaints Authority

[2024] NZHC 2334

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-224

[2024] NZHC 2334

BETWEEN

FRANCISC CATALIN DELIU

Applicant

AND

INDEPENDENT POLICE CONDUCT AUTHORITY

Respondent

Hearing:

17 July 2024

Appearances:

Applicant in person

S B McCusker for Respondent

Judgment:

20 August 2024

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 20/08/2024 at 3pm.

Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Luke Cunningham Clere, Wellington

Copy to F C Deliu

DELIU v INDEPENDENT POLICE CONDUCT AUTHORITY [2024] NZHC 2334 [20 August 2024]

Introduction

[1]    The applicant Dr Deliu applies for judicial review of a decision of the Independent Police Conduct Authority (IPCA) dated 11 October 2022. By that decision, the IPCA found that alleged conduct by a police officer, even if it occurred, did not amount to misconduct or neglect of duty.

[2]Dr Deliu says that the IPCA was in error because:

(a)no reasonable decision maker would have failed to interview the police officer concerned before making a finding; and

(b)it failed to take into account points raised by Dr Deliu; and

(c)it failed to give adequate reasons for its decision.

[3]    The IPCA says that the complaint was assessed in accordance with the Authority’s usual procedure. It was determined that the complaint was a minor matter for which no further action should be taken. The IPCA did not consider the comments amounted to misconduct or neglect of duty even if such comments were made. The IPCA submits that it followed a correct process and came to a decision that was properly available to it.

Background

[4]    Dr Deliu is a lawyer. In 2013, he acted for a client named Ms Zhang in a real estate transaction dispute against the company King David Investments Ltd. The director of King David Investments Ltd was Ms Ying, who was married to a solicitor named Mr Young. As a result of the dispute, Ms Zhang brought High Court proceedings in which Dr Deliu acted for her. The parties agreed to settle during the trial, which took place in July 2016. The company breached the terms of settlement by selling the property at the centre of the dispute. Ms Zhang brought contempt and other enforcement proceedings against King David  Investments  Ltd, and against  Ms Ying  and  Mr Young  personally.   On  13  December  2016,  Ms Ying  was fined

$10,000 for contempt of court.   Mr Young was referred to the New Zealand Law

Society (NZLS). Ms Ying appealed the contempt ruling but, on 21 December 2017, the Court of Appeal varied the finding from civil contempt to criminal contempt. Concurrently, Mr Young was investigated, prosecuted and, on 22 December 2017, found to have committed misconduct.

[5]    Dr Deliu became the focus of ill feeling by Ms Ying, who he says made threats against Dr Deliu, his wife and child.

[6]    On 31 August 2016, a search warrant, on an unrelated matter, was executed in respect of another lawyer’s practice in Dr Deliu’s chambers. During the execution of that search warrant, Dr Deliu was detained. Dr Deliu brought legal action against Detective Senior Sergeant Chapman, who led the team executing the search warrant.

[7]    On 25 January 2017, Mr Young and Ms Ying filed the notice of appeal in respect of the contempt ruling in the Court of Appeal. In that notice, it was stated “[a] policeman says he loves to catch Deliu as he has caused nightmare to many people.”

[8]    On 25 May 2017, Ms Ying made a complaint to the NZLS against Dr Deliu and, as part of an affidavit sworn on 9 August 2017, said:

I have lost my property and reported to the police about the fraud, and the police inform me he loved to catch [Deliu] who had cause nightmare [sic] to so many families, but at this stage it is better to let NZLS sort it out. I am extremely disappointed about the bias of NZLS.

[9]    Mr Young also gave evidence before the National Standards Committee on  20 November 2017 that:

…We did ring to the Auckland Central Police, a report to the police and this senior sergeant told us… “You should go to the Law Society first… to catch Mr Deliu because he has caused nightmare to so many people”.

[10]In a letter to the NZLS dated 13 February 2018, Ms Ying wrote:

Thank you for your recent letter from Frank Deliu.

I reported to a senior detective of Auckland Police Ian Chapman about Deliu. He said he would love to catch Deliu who had caused nightmares to so many people and family but I should complain to NZLS first.

[11]    Having become aware of the evidence of Ms Ying and Mr Young, Dr Deliu complained to the IPCA about the comments allegedly made by Detective Senior Sergeant Chapman. On 6 March 2018, Dr Deliu emailed the Authority with his complaint. The complaint stated:

I write to complain about this official [Detective Senior Sergeant Chapman] for having told Dr Jinyue (Paul) Young and/or Mrs Hsiang-Feng (Murinda) Ying that: (I) he would love to catch me, i.e., lock me up; and/or (II) that he/she/they should complain about me to the New Zealand Law Society, which obviously is not only none of his business but also he should not be having ex parte discussions about me, especially of a framing nature.

[12]The complaint attached the letter to the NZLS dated 13 February 2018.

[13]   On 27 March 2018, Dr Deliu provided the Authority with additional information, being a page from the notes of evidence from the cross-examination of Mr Young in the proceeding National Standards Committee v Jinyue (Paul) Young.1 Dr Deliu also enclosed the decision of the National Standards Committee in respect of Mr Young, and the Court of Appeal decision in Young v Zhang.2

[14]   The IPCA treated the correspondence of 6 March 2018 and 27 March 2018 as further information relating to an earlier complaint of harassment rather than as a separate complaint. It did not make a separate decision in relation to the March 2018 correspondence.

[15]   Dr Deliu applied for judicial review. On 10 March 2022, this Court issued a decision determining that  the  IPCA  did  not  properly  consider  the  complaint  of 6 March 2018 and ordered it to do so in accordance with s 17 of the Independent Police Conduct Authority Act 1988 (IPCA Act).3

[16]   A new file was opened in relation to the 6 March 2018 complaint and assigned to a senior case resolution officer on 8 June 2022.

1      National Standards Committee v Jinyue (Paul) Young [2017] NZLCDT 41.

2      Young v Zhang [2017] NZCA 622.

3      Deliu v Independent Police Conduct Authority [2022] NZHC 413, [2022] NZAR 229.

[17]   The IPCA determined that the complaint was a “category D” matter for which no action would be taken under s 18(1)(b)(i) of the IPCA Act. The IPCA considered that even if the alleged comment had been made, it did not amount to an attempt to imprison the applicant but rather was an expression of frustration. The suggestion that Ms Ying and/or Mr Young complain to the NZLS was considered an appropriate course of action.

[18]   At least one of the case officers who considered the matter was aware of the history between Dr Deliu and Detective Senior Sergeant Chapman but did not consider that history warranted the complaint being given a higher categorisation. The assigned case officer recommended that the complaint be classified as a category D complaint, describing the alleged comment by the police officer as “minor, at best”. The draft response prepared by the case officer was reviewed by a resolutions team leader, who checked that the proposed decision was reasonable, and that nothing had been overlooked or misinterpreted. After reviewing the draft letter, the team leader was satisfied with the category D recommendation on the basis that the complaint was a minor matter for which no further action should be taken. On 11 July 2022, the team leader wrote to the applicant with the decision. He stated:

I appreciate this would have been a frustrating and unsettling situation for you, but we do not consider these comments or advice amounts to misconduct or neglect of duty (if such comments were said). If Detective Senior Sergeant Chapman directed the persons to the Law Society, we would not consider this to have been unreasonable advice.

Because the Authority has not identified any misconduct or neglect of duty on the part of Police, we will take no further action.

[19]   The applicant responded requesting that the Authority reconsider the complaint. Dr Deliu said that the Authority had misconstrued the complaint entirely as he was not complaining about the NZLS referral, but rather about the police officer “wanting to lock me up for no crime”. Dr Deliu disputed that such a remark did not constitute misconduct as police are not “allowed to lock up people without an underlying allegation of criminal offending”. Dr Deliu said that it was wrong for police to want to lock people up out of malice. Dr Deliu also enquired as to whether the IPCA had asked the police officer whether he had made the statement.

[20]   The resolutions officer undertook a reassessment of the complaint. The team leader reviewed the original complaint of 6 March 2018 and the other documents on file as well as previous correspondence between the applicant and the IPCA. Following the review, the team leader sent a letter dated 11 October 2022 which stated:

In relation to the first issue [around the “catch you” comment], you have complained that we have not conducted an investigation, in that we have not interviewed DSS Chapman. You are correct that we have not interviewed him. In our assessment of your complaint, we considered that, even if true, the comments you have alleged would not amount to misconduct or neglect of duty. Following our reassessment of your complaint, that remains our position. We do not consider that the conversation as alleged constitutes a criminal conspiracy or an attempt to “frame you”. While I again acknowledge your distress over this matter, we confirm our earlier position that the conversation between DSS Chapman and the other two individuals, as alleged, does not reach the threshold of misconduct or neglect of duty.

Because the Authority has not identified any misconduct or neglect of duty on the part of Police, we will take no further action and our file remains closed.

[21]Dr Deliu subsequently filed an application for judicial review.

Judicial review principles

[22]   Judicial review proceedings relate to the exercise, failure to exercise or proposed or purported exercise of a statutory power.4 There is no dispute that decisions of the IPCA are an exercise of a statutory power and amenable to judicial review.

[23]   Judicial review is not an opportunity to review the merits of a decision. It is an examination of the process by which the decision was made. An applicant on review must identify an error of law, failure to have regard to a relevant consideration or regard to an irrelevancy or procedural unfairness. The decision must be made with the benefit of adequate information.5 The decision must be one a  reasonable  decision maker could reach based on the available information.6

4      Judicial Review Procedure Act 2016, s 3.

5      O’Keeffe v New Plymouth District Council [2021] NZCA 55 at [30]–[31].

6      Sutton v Canterbury Regional Council [2015] NZHC 313 at [34], citing Petone Planning Action Group Inc v Hutt City Council HC Wellington CIV-2006-485-405, 10 October 2006 at [36].

[24]   Unreasonableness in the Wednesbury sense requires a finding that a decision is “so absurd that no sensible person could ever dream that it lay within the powers” of the decision maker.7

[25]   The Supreme Court in Auckland City Council v CP Group Ltd recently confirmed that the Wednesbury formulation of unreasonableness continues to have application in the context of challenges to local authority rating decisions.8 It endorsed the earlier observations of the Court of Appeal in Wellington City Council v Woolworths New Zealand Ltd (No 2), saying that the test was “a stringent one” such that an applicant would need to show that the decision is irrational or that no reasonable body of persons could have arrived at the decision.9

Discussion

[26]   The statutory framework to the IPCA Act was summarised by the Court in the earlier decision of Deliu v Independent Police Conduct Authority where it was said:10

IPCA is an independent Crown entity. Its core functions are to receive complaints and to investigate incidents involving death or serious bodily harm of its own motion. Where it investigates, it forms an opinion which is conveyed to the Commissioner of Police and it may make recommendations. Its recommendations are not enforceable but if no action is taken which seems to IPCA to be adequate and appropriate, it must send its opinion and recommendations to the Attorney-General and Minister of Police (and may transmit a report to the Attorney-General for tabling in Parliament). It has no power to provide complainants with a legal remedy nor to deprive complainants of any legal remedy they may have. In that sense, the Act is concerned with the public interest of police oversight rather than private legal remedies.

(footnotes omitted)

[27]   Section 17 of the IPCA Act sets out the action that the Authority can take on receipt of a complaint. It provides:

17Action upon receipt of complaint

7      Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 689 (CA) at 229.

8      Auckland City Council v CP Group Ltd [2023] NZSC 53, [2023] 1 NZLR 35.

9      At [87], citing Wellington City Council v Woolworths New Zealand Ltd (No 2) [1996] 2 NZLR 537 (CA) at 545.

10     Deliu v Independent Police Conduct Authority, above n 3, at [14].

(1)On receiving or being notified of a complaint under this Act, the Authority may do all or any of the following:

(a)investigate the complaint itself, whether or not the Police have commenced a Police investigation:

(ab) refer the complaint to the Police for investigation by  the  Police:

(b)defer action until the receipt of a report from the Commissioner on a Police investigation of the complaint undertaken on behalf of the Authority:

(c)oversee a Police investigation of the complaint:

(ca) defer action until the receipt of a report from  the  Commissioner following a criminal investigation or a disciplinary investigation, or both, initiated and undertaken by the Police:

(d)decide, in accordance with section 18, to take no action on the complaint.

[28]   Section 18 of the IPCA Act sets out the circumstances in which the Authority can decide to take no action on a complaint. It provides:

1. Authority may decide to take no action on complaint

(1)The Authority may in its discretion decide to take no action, or, as the case may require, no further action, on any complaint if—

(a)the complaint relates to a matter of which the person alleged to be aggrieved has had knowledge for more than 12 months before the complaint was made; or

(b)in the opinion of the Authority—

(i)the subject matter of the complaint is minor; or

(ii)the complaint is frivolous or vexatious or is not made in good faith; or

(iii)the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or

(iv)the identity of the complainant is unknown and investigation of the complaint would thereby be substantially impeded; or

(v)there is, or was, in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives, that it would be reasonable, or would have been reasonable, for the person alleged to be aggrieved to exercise.

(2)The Authority may decide not to take any further action on a complaint if, in the course of the investigation of the complaint by the Authority or the Police, or as a result of the Commissioner’s report on a Police investigation, it appears to the Authority that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.

(3)In any case where the Authority decides to take no action, or no further action, on a complaint, it shall inform the complainant of that decision and the reasons for it.

[29]   The IPCA submits that the statutory framework of the IPCA Act affords it considerable latitude in how it deals with complaints under s 17 and the power to take no further action on a complaint under s 18. The IPCA receives a very large number of complaints in a given year and must ensure that its investigative resources are allocated effectively through the maintenance of an appropriate triaging system.

[30]   In oral submissions, Dr Deliu set out his concern about how Detective Senior Sergeant Chapman came to be speaking to Ms Ying and Mr Young in or before January 2017. The first mention of any such comment by the Detective Senior Sergeant to Ms Ying or Mr Young was in January 2017. Dr Deliu says that was prior to Ms Ying making a police complaint about him. Dr Deliu submits that the circumstances in which Detective Senior Sergeant Chapman was speaking to Ms Ying and/or Mr Young is entirely unclear. At the very least, Dr Deliu says the IPCA should have interviewed Detective Senior Sergeant Chapman to ascertain why he was speaking to Ms Ying and/or Mr Young and whether he made the comments that they say he did.   Dr Deliu  says that Ms Ying  made her first  complaint to police on     12 October 2017. There is no explanation for why she would have been speaking to the Detective Senior Sergeant in or before January 2017, and there is no record of any complaint being made before October 2017.

[31]   Dr Deliu says that Ms Ying and Mr Young are dangerous and have threatened him and his family. He says it was a violation of his human rights for a police officer to think it appropriate to tell the couple that the police officer would like to “catch him”. Dr Deliu says it is a misuse of police power to express personal malice towards him when speaking to Ms Ying and Mr Young. Dr Deliu says that the IPCA was quite wrong to dismiss the complaint as de minimis. The police officer’s comment had real

consequences for him, including encouraging people who were threatening towards him and his family.

[32]   Dr Deliu further submits that the IPCA should have been concerned about why the police officer was speaking to Ms Ying and/or Mr Young and about the context in which the comments were made. On the information provided to the IPCA, Detective Senior Sergeant Chapman spoke to them (or one of them) as a result of a complaint they wished to make to police. Dr Deliu says that cannot be correct because the first complaint about him was made in October 2017.

[33]   The concern about the timing of the first complaint to police was not advised to the IPCA. There was no reason for the IPCA to be alert to the issue Dr Deliu now raises. Whether and how the police officer came to be speaking to Ms Ying or Mr Young was not the subject of the complaint and there is no evidence of misconduct occasioned by the mere fact that the police officer may have spoken to Ms Ying or Mr Young but not recorded any complaint.

[34]    Mr Young’s evidence to the National Standards Committee was to the effect that he or his wife telephoned the Auckland Central Police station to make a complaint, but the officer did not action the complaint and suggested contacting the NZLS first. The fact that a person wanting to complain about Dr Deliu may have been referred to Detective Senior Sergeant Chapman (if that is what occurred) is not surprising because the Detective Senior Sergeant had previous dealings with Dr Deliu. Given the fact that Dr Deliu brought proceedings against Detective Senior Sergeant Chapman following the execution of the search warrant, it would have been better for another police officer to deal with an unrelated complaint about Dr Deliu. But Dr Deliu was aware, when making his complaint to the IPCA, that the comment was alleged to have been made in the context of a complaint against him made to Detective Senior Sergeant Chapman. That fact was never the reason for the complaint to the IPCA. The complaint to the IPCA was about what Detective Senior Sergeant Chapman is alleged to have said when dealing with the complaint by Ms Ying and/or Mr Young.

[35]   Dr Deliu characterises the statement — that Detective Senior Sergeant Chapman would love to “catch him” — as a statement that the officer wanted or

intended to lock him up for a crime he had not committed. I do not take that interpretation from the statement. A statement by a police officer that he would like the “catch someone” is equally if not more consistent with a police officer saying that he would like to catch the person committing an offence.

[36]   As was discussed during the hearing, there is no doubt that the comment, if made by the police officer, was an unwise comment. It has the flavour of the officer trying to pacify Ms Ying and Mr Young, by expressing empathy but telling them he could do nothing, and they should go to the NZLS. The police officer should not have expressed his view of Dr Deliu to members of the public who were trying to make a complaint to police. If it happened, it was unprofessional. Whether an officer’s actions are unprofessional or fall below best practice or are unwise is not, however, the test for upholding a complaint to the IPCA. The test is whether the action by the officer amounts to misconduct or neglect of duty, and the question for this Court is whether the IPCA followed correct procedure in making its decision and came to a decision that was reasonably available to it.

[37]   Section 18 of the IPCA Act specifically allows the IPCA to take no action if the subject matter of the complaint is minor. The Authority has a discretion to make that decision and the courts should be reluctant to interfere with the IPCA’s specialist jurisdiction in exercising the discretion.

[38]   I agree that it was open for the IPCA to consider that the remarks, if made, were minor and that no misconduct arose. The team leader described the alleged remarks as a “poor choice of words” but ones which “did not give rise to concerns about conduct of discriminatory behaviour, or language or attitude” serious enough to warrant further inquiry. That decision was one that was reasonably open to the IPCA.

[39]   As for the decision not to interview Detective Senior Sergeant Chapman, the resources of IPCA are finite. It is reasonable for IPCA to exercise a discretion as to where those resources are utilised. Where a complaint is made about conduct that is not serious enough to amount to misconduct even if established, it must be open to the IPCA not to carry out any further investigation. There is no duty upon the IPCA to investigate claims which have no prospect of success.   Based on the information

provided by Dr Deliu, it was open to the IPCA to reach the view that the alleged remarks, if made, did not give rise to misconduct and that the complaint concerned a minor matter that did not require further investigation.

[40]   Dr Deliu has interpreted the comments as a statement that the police officer wanted to lock him up for a crime he had not committed. The police officer is, however, not alleged to have said that. Dr Deliu is reading more into the comments than is apparent from the face of them.

Did the IPCA fail to give adequate reasons?

[41]   The IPCA is required to inform a complainant of a decision and the reasons for that decision. The extent of the obligation to give reason for a decision depends upon the nature and context of the decision.11 The IPCA relies on Northern Action Group Inc v The Local Government Commission, where it was said:12

The extent of the reasons required will depend on the nature and function of the decision maker. It also depends on whether the giving of reasons is an obligation imposed on it by statute or otherwise. In the case of a court the requirement to give reasons is more stringent than might be required than of a body entrusted with wide powers of inquiry following a non-adversarial process. On occasions, even for a court, the reasons may be abbreviated, or they may well be evident without express reference.

The decision maker must generally provide reasons which are intelligible, adequate and enable an understanding of why the matter has been decided in the way it has and why the conclusions have been reached on important issues. The reasons need only to refer to the main issues in dispute not every material consideration. The decision must show that the decision maker has addressed its mind to the criteria it was required to apply.

(footnotes omitted)

[42]   The Authority did explain its reasoning saying that it did not interpret the alleged remarks in the same way that Dr Deliu did and, as a result, did not consider the comments even if made amounted to misconduct. The Authority’s interpretation of the alleged comments was an available one. The primary reason for declining to take further steps was because the comments could be interpreted in a far less sinister

11     Russell v Commission of Inland Revenue [2015] NZHC 754 at [48], citing R v Awatere  [1982] 1 NZLR 644 (CA) at 649.

12     Northern Action Group Inc v The Local Government Commission [2020] NZHC 830 at [126]– [127].

way than Dr Deliu argues for. The more innocuous interpretation was available to the IPCA.

[43]   At the heart of this application for judicial review is the fact that Dr Deliu disagrees with the outcome reached by the IPCA. That is, however, not the focus of judicial review.

[44]   It was open to the IPCA to regard the comments if made as unwise and unprofessional, but not as amounting to misconduct requiring its sanction.

[45]   Dr Deliu says that the IPCA should have proactively engaged in investigating his complaint because of the history between himself and Detective Senior Sergeant Chapman. That is an unrealistic submission. The alleged comment was reasonably capable of being regarded as a minor breach of professional standards not requiring further investigation. The history might explain the comment, but it does not elevate the comment beyond the actual words used.

[46]   In the circumstances, I find that the decision reached by the IPCA was open to it. It was not an unreasonable decision and was in fact an efficient use of resources. The decision not to interview was reasonable given the nature of the alleged remarks and the IPCA had no reason to be concerned as to why Detective Senior Sergeant Chapman was speaking to Ms Ying and/or Mr Young. The reasons given were brief but adequate. Given the nature of the alleged misconduct, it is difficult to see what further reasons were required. The IPCA came to a reasonable conclusion that the comments, even if made, did not amount to misconduct, and communicated that to Dr Deliu.

Result

[47]The application is declined.

Costs

[48]   The IPCA is entitled to reasonable costs. If they cannot be agreed, the parties are to file memoranda not exceeding three pages within 15 working days and I will determine the costs on the papers.

Wilkinson-Smith J