Deliu v Minister of Police
[2021] NZHC 2458
•17 September 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-2483
[2021] NZHC 2458
UNDER the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New Zealand Bill of Rights Act 1990 and Declaratory Judgments Act 1908 IN THE MATTER
of proceedings moving for an application for judicial review, writs, civil and bill of rights claims and a petition for declaratory relief
BETWEEN
DOCTOR FRANCISC CATALIN DELIU
Applicant
AND
THE MINISTER OF POLICE
Respondent
Remote hearing: 17 September 2021 Appearances:
Applicant in person
D Jones and C N Tocher for the respondent
Date of judgment:
17 September 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 17 September 2021 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
Crown Law, Wellington
Copy to:
Applicant
DELIU v THE MINISTER OF POLICE [2021] NZHC 2458 [17 September 2021]
[1] On this application for judicial review, the applicant (“Mr Deliu”) claims the respondent (the “Minister”) erred in declining to engage with Mr Deliu’s request to remove police officers prosecuting him, and to reallocate the prosecutions to other police officers for reconsideration. Mr Deliu also claims the Minister’s failure to reply to Mr Deliu’s response, contending for such errors, is a breach of natural justice.
[2] On the day prior to hearing, Mr Deliu sought my recusal. I declined to recuse myself.1 On the day of hearing, Mr Deliu renewed his application for my recusal.
Having already declined his application, I dismissed its renewal.2
[3] At the hearing, citing my dismissals of his applications for my recusal, Mr Deliu declined further to participate in its “sham”. For the Minister, Daniel Jones had nothing to say. I therefore determine Mr Deliu’s application for judicial review on the written submissions from each party.
Background
[4]The parties helpfully have agreed facts for my determination:
1. [In] February 2017 the Auckland Central New Zealand Police in the District Court at Auckland charged [Mr Deliu] with two counts of assault with a weapon.
2. [In] April 2018 the Auckland Central New Zealand Police in the District Court at Auckland charged [Mr Deliu] with two counts of attempting to pervert the course of justice.
3. On 6 October 2020 [Mr Deliu] wrote to the [Minister] in relation to the above two proceedings, requesting that:
3.1The Police officers and indeed the unit with conduct of these cases be removed from conduct of the cases.
3.2The cases be reallocated to Police officers not from Auckland who have had no previous dealings with [Mr Deliu], for reconsideration of whether criminal charges should be pursued.
4. [Mr Deliu] gave the [Minister] 1 month to respond, indicating his acceptance of [Mr Deliu]’s proposal, indicating that any failure to do so would result in his commencing judicial review and whistleblowing the matter to the media.
1 Deliu v Minister of Police HC Auckland CIV-2020-404-2483, 16 September 2021 (Minute of Jagose J) at [5].
2 Deliu v Minister of Police HC Auckland CIV-2020-404-2483, 17 September 2021 (Minute of Jagose J).
5. On 8 October 2020 the [Minister] responded to [Mr Deliu] through an email sent by his Secretary. In that email the [Minister] declined [Mr Deliu]’s request on the basis that:
The investigation and prosecution of offences are the responsibility of the Commissioner of Police as stated in s 16 of the Policing Act 2008. The Commissioner must act independently of any Minister of the Crown in discharging this responsibility.
This ensure that these matters remain free of any political influence or interference.
6. The email indicated that whilst the request would normally be forwarded [to] the Commissioner of Police but as [Mr Deliu] had already copied his request to the Commissioner, this would not happen in this case.
7. On … 9 October 2020 [Mr Deliu] responded in the following terms:
With respect, I was seeking a Ministerial direction, which I do not believe is prohibited, and indeed is expressly provided for in sub-
§(1)(e) and also, to be clear, I was not asking for any assistance with the investigation or prosecution of offences, but rather the removal of conflicted constables. The net effect of that would be a reconsideration of whether to charge, but that is not something I was asking the Minister to be involved in, as I accept that would be a matter for the Police exclusively. So, can the Minister please reconsider his refusal to intervene as I believe it is premised on an error of law (as to the provision cited supra) and/or facts, inter alia, what I was asking for was not to consider whether or not alleged crimes ought to be investigated or if charges should be laid, but rather whether it was proper for the personnel involved to have been involved? Please let me know, now that I have clarified the position thanks to your helpful e-mail.
8. The respondent has not replied to that email.
9. On 8 October 2020 the Commissioner of Police confirmed that he had forwarded [Mr Deliu]’s 6 October 2020 request to the Police’s investigation team and on 18 November 2020 further agreed to consider it.
10. To date [Mr Deliu] has not been notified of any determination of his request although he has, on a number of occasions, followed it up with Police.
Relevant law
[5] The relevant law of judicial review requires little elaboration. It is that public or statutory decision-makers must exercise their powers “in accordance with the law, fairly and reasonably”.3 ‘Fair’ and ‘reasonable’ are terms of art in judicial review,
3 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
respectively broadly meaning procedurally regular and substantively rational. But the overlapping nature of the considerations makes discrete analysis unnecessary.4 It is well recognised the right to natural justice in any case depends on the context,5 and its extent varies “with the power that is exercised and the particular circumstances, including the statutory context, in which a decision is made”.6
[6]Also relevant are aspects of the Policing Act 2008:
3 Purpose
The purpose of this Act is to provide for policing services in New Zealand, and to state the functions and provide for the governance and administration of the New Zealand Police.
…
8 Principles
This Act is based on the following principles:
(a)principled, effective, and efficient policing services are a cornerstone of a free and democratic society under the rule of law:
(b)effective policing relies on a wide measure of public support and confidence:
(c)policing services are provided under a national framework but also have a local community focus:
(d)policing services are provided in a manner that respects human rights:
(e)policing services are provided independently and impartially:
(f)in providing policing services every Police employee is required to act professionally, ethically, and with integrity.
9 Functions of Police
The functions of the Police include—
(a)keeping the peace:
(b)maintaining public safety:
(c)law enforcement:
(d)crime prevention:
(e)community support and reassurance:
(f)national security:
(g)participation in policing activities outside New Zealand:
4 Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA) at [85].
5 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
6 Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].
(h)emergency management.
10 Roles of others acknowledged
(1) It is acknowledged that important and valuable roles in the performance of the functions of the Police are played by—
(a)public agencies or bodies (for example, certain departments of State, and local authorities); and
(b)the holders of certain statutory offices (for example, Māori wardens); and
(c)parts of the private sector (for example, the private security industry).
(2) It is also acknowledged that it is often appropriate, or necessary, for the Police to perform some of its functions in co-operation with individual citizens, or agencies or bodies other than the Police.
11 Effect of sections 8 to 10
Nothing in sections 8 to 10—
(a)imposes particular duties on, or gives particular powers to, the Police, the Commissioner, any Police employee, or the Minister; or
(b)affects the powers, functions, or duties of any agency other than the Police, or any person who is not the Commissioner, a Police employee, or the Minister.
…
16 Responsibilities and independence of Commissioner
(1) The Commissioner is responsible to the Minister for—
(a)carrying out the functions and duties of the Police; and
(b)the general conduct of the Police; and
(c)the effective, efficient, and economical management of the Police; and
(d)tendering advice to the Minister and other Ministers of the Crown; and
(e)giving effect to any lawful ministerial directions.
(2) The Commissioner is not responsible to, and must act independently of, any Minister of the Crown (including any person acting on the instruction of a Minister of the Crown) regarding—
(a)the maintenance of order in relation to any individual or group of individuals; and
(b)the enforcement of the law in relation to any individual or group of individuals; and
(c)the investigation and prosecution of offences; and
(d)decisions about individual Police employees.
Discussion
[7] Section 16 renders the police “largely independent from the executive”.7 But the Minister plainly may give lawful directions to the Commissioner,8 which is what Mr Deliu contends to be seeking in requesting of the Minister removal, reallocation and reconsideration by the police.
[8] The lawfulness of such directions must distinguish between matters for which the Commissioner is responsible to the Minister under s 16(1) and those s/he is not under s 16(2). It is a “critical” and “decisive” distinction.9 Thus the question is which side of the line Mr Deliu’s request falls. He argues it is open to the Minister under s 16(1) to ‘oversee’ the police “in circumstances where a conflict-of-interest, if not outright bad faith, is arguably presented”. The point is not elaborated further and the balance of Mr Deliu’s submissions is conclusory.
[9] The Minister’s permissible ‘oversight’ can only be in circumstances other than those articulated in s 16(2). Mr Deliu’s request for removal, reallocation and reconsideration determinedly is in relation to s 16(2)’s enforcement of the law in relation to him, the investigation and prosecution of those alleged offences, and decisions about individual police officers in doing so. The request is about the charges Mr Deliu faces, and the identity of police officers who should investigate and prosecute them (including in the exercise of their discretion). The request thus comprehensively falls without the scope of the Minister’s permissible ‘oversight’. The Minister therefore did not err in declining Mr Deliu’s request. Thus there can be no breach of natural justice in failing to reply to Mr Deliu’s response to the contrary. The position already was determined by the Minister’s earlier decision. Nothing remained to be considered by the Minister.
Result
[10]Mr Deliu’s application is dismissed.
7 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [53], n 123.
8 Policing Act 2008, s 16(1)(e).
9 Bain v Minister of Justice [2013] NZHC 2123, [2014] NZAR 892 at [131].
Costs
[11] In my preliminary view — as the unsuccessful party in this averagely complex proceeding requiring counsel of average skill and experience, and in which a normal amount of time is considered reasonable for each step in the proceeding (excluding appearance at its hearing, for which no time is considered reasonable) — Mr Deliu should pay 2B costs to the Minister on each step in the proceeding excluding appearance at its hearing.
[12] If my view is not accepted by the parties, or they cannot otherwise agree, I reserve costs for determination on short memoranda of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate — to be filed and served by any claiming party within ten working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
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