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Deliu v R

Deliu v R

Case [2022] NZHC 3268 7 December 2022

Natural Justice & Procedural Fairness

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Civil Litigation & Procedure

Administrative Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000108

[2022] NZHC 3268

BETWEEN
FRANCISC CATALIN DELIU

Plaintiff

AND

THE KING

Defendant

Hearing: 5 December 2022

Appearances:

F C Deliu in person by audio visual link from the United States of America

Z Hamill for the Crown

Judgment:

7 December 2022

Reissued:

1 June 2023

JUDGMENT OF WYLIE J [Redacted]

(Appearance by AVL, Recusal/Stay/Consolidation – Reasons for Rulings)

This judgment was delivered by Justice Wylie On 7 December 2022 at 11.00 am
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
Crown Law, Wellington

Copy to:
Mr F C Deliu

DELIU v R [2022] NZHC 3268 [7 December 2022]

Introduction

[1] The plaintiff, Francisc Deliu, is charged with two counts of perverting the course of justice. He has brought a civil proceeding against the Crown. He challenges the actions of the Crown Solicitor at Auckland, his firm (Meredith Connell) and his prosecutors in acting for the Crown following the Crown’s assumption of responsibility for the charges after prosecutors in the firm had already acted for the New Zealand Police in relation to those charges, both before they were laid and at their first call in Court.

[2] The Crown defends the claim and denies any impropriety. It says that it is not uncommon for a Crown Solicitor or his or her prosecutors to appear on behalf of the Police in the early stages of a prosecution and prior to the Crown’s assumption of responsibility for the prosecution. It says that, in so doing, the Crown Solicitor and his or her prosecutors do not compromise their independence and that no conflict of interest arises when the Crown Solicitor later assumes responsibility for the prosecution.

Factual background

[3] The full background to the matters underlying the present proceeding is set out in an earlier judgment by Davison J, Deliu v Flanagan.1 I adopt his recital of the facts. Relevantly, I record the following:

Police charges laid against [Mr Deliu]

[15] As noted, in February 2017, the Police charged [Mr Deliu] 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. 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, [Mr Deliu] 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.

1 Deliu v Flanagan [2022] NZHC 2621.

[16]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Deliu v R

Details

AGLC: Deliu v R [2022] NZHC 3268
Case: [2022] NZHC 3268
Decision Date: 7 December 2022

CaseChat Overview and Summary

In Deliu v R, Francisc Deliu, a plaintiff charged with two counts of perverting the course of justice, brought a civil proceeding against the Crown, challenging the actions of the Crown Solicitor at Auckland and his firm. The Crown defended the claim, asserting that there was no impropriety in the Crown Solicitor or his prosecutors acting for the Crown after assuming responsibility for the charges, having already acted for the New Zealand Police. The court was required to decide whether the Crown had breached any legal obligations and if so, what relief should be granted. Wylie J allowed Mr Deliu to appear remotely, declined to recuse himself, and ordered that the proceeding be stayed until 21 working days after Brewer J released his decision in another proceeding. The judge declined Mr Deliu's application for consolidation and directed that any application for costs and disbursements should be filed by way of memorandum within 10 working days of the date of this judgment.

Orders