Dunstan v Attorney-General - [2024] NZHC 1586

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-443-13

[2024] NZHC 1586

BETWEEN
TANYA DUNSTAN

Applicant

AND

ATTORNEY-GENERAL

Respondent

Hearing: On the papers

Appearances:

Applicant in person

K E E Whiting for Respondent

Judgment:

17 June 2024

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 7 February 2024, the applicant filed an interlocutory application seeking leave to file new judicial review proceedings in regard to the decision of Judge Hikaka dated 24 January 2024 declining to accept the applicant’s charges for filing a private prosecution.

[2] Leave was granted by Grau J in a minute dated 7 March 2024, and a hearing has been set down for 19 July 2024.

[3] On 31 May 2024, the applicant filed an urgent memorandum seeking a number of directions regarding the hearing. On 10 June 2024 the applicant filed a lengthy affidavit in support.

DUNSTAN v ATTORNEY-GENERAL [2024] NZHC 1586 [17 June 2024]

Background

[4] On 15 October 2023, the applicant filed at the New Plymouth District Court informations relating to a number of charges against various parties for alleged offences under ss 113, 116, 117, 209 and 210 of the Crimes Act 1961, relating to the offences of abduction, kidnapping, corrupting witnesses, conspiring to defeat justice and fabricating evidence.

[5] On 24 January 2024 Judge Hikaka, after receiving the charging documents and a statement sworn by the applicant on 23 October 2023, declined to accept the documents for filing. He found that this was an abuse of process, given that a previous attempt at filing similar charges against the same parties in 2022 which had initially been rejected for filing had been remitted back to the Manukau District Court for determination.

[6] Grau J gave leave for the applicant to file judicial review proceedings in respect of Judge Hikaka’s decision, as she found the Judge had not followed the procedure set out in s 26(1) of the Criminal Procedure Act 2011.

Submissions

[7] In her memorandum dated 31 May 2024, the applicant requests the following directions which she contends are in accordance with her rights under the New Zealand Bill of Rights Act 1990 (NZBORA) and ss 19 and 21 of the Human Rights Act 1993 (HRA):

(a)that the open court proceedings be livestreamed as per other matters of significant public importance;

(b)if livestreaming is not granted, that an AVL link be made available to anyone who wishes to dial in to witness the court hearing;

(c)that the Court permit Graeme Axford who the applicant wanted to be her McKenzie friend to appear via AVL to support the applicant for the hearing;

(d)if Graeme Axford is not permitted to appear via AVL, confirmation that in the event the applicant is successful that costs for Mr Axford to fly to Wellington from Greymouth (return) and accommodation for 19 July 2024 will be covered;

(e)confirmation that the applicant’s return flights and accommodation to attend the hearing in Wellington be covered in costs should the applicant…

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 Dunstan v Attorney-General

Details

AGLC: Dunstan v Attorney-General [2024] NZHC 1586
Case: [2024] NZHC 1586
Decision Date: 17 June 2024

CaseChat Overview and Summary

The case of Dunstan v Attorney-General involved Tanya Dunstan, the applicant, who sought judicial review of a decision made by Judge Hikaka on 24 January 2024. The decision pertained to the rejection of Dunstan's charges filed at the New Plymouth District Court for offences under the Crimes Act 1961. The application for judicial review was filed on 7 February 2024 and subsequently granted leave by Grau J on 7 March 2024. Dunstan's request for several directions to be implemented ahead of the hearing scheduled for 19 July 2024 was made on 31 May 2024, supported by an affidavit filed on 10 June 2024.

The legal issues before the court included whether the proceedings should be livestreamed, if an audio-visual link (AVL) should be provided, whether a McKenzie friend should be allowed to support Dunstan via AVL, if travel and accommodation costs should be covered, the appointment of an amicus curiae, and whether a discovery order should be made for certain documents. The court examined these requests in light of the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993, and relevant statutes and rules governing court procedures.

The court declined all of Dunstan's requests. It determined that livestreaming was not warranted due to the lack of significant public interest in the proceedings. The use of AVL was deemed inappropriate as it is intended for participants, not non-participants, to join remotely. The court found that Dunstan, an experienced litigant, did not need a McKenzie friend, and declined to cover the associated travel and accommodation costs. The appointment of an amicus curiae was also refused as the court found no exceptional circumstances justified it, particularly given the straightforward nature of the issue at hand. Lastly, the court ruled against the discovery order, stating it was not in the interests of justice to compel the production of unrelated documents.

In conclusion, the court dismissed all of Dunstan's applications and no orders were made in her favour. The directions sought by Dunstan were denied on the basis that they either did not align with the statutory provisions or the court's discretion.

Orders