Dunstan v North Shore District Court

[2024] NZHC 1208

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-300

[2024] NZHC 1208

UNDER

the Judicial Review Procedure Act 2016, High Court Rules 2016, Criminal Procedure Act 2011, Declaration Act 1908,
New Zealand Bill of Rights Act 1990 and Human Rights Act 1993

BETWEEN

TANYA DUNSTAN

Applicant

AND

NORTH SHORE DISTRICT COURT

First Respondent

KYLIE NEWTON

Second Respondent

(continued over)

Judgment:

(On the papers)

15 May 2024

JUDGMENT OF BREWER J

This judgment was delivered by me on 15 May 2024 at 4 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law (Wellington) for First to Eighth Respondents

(Applicant in person)

DUNSTAN v NORTH SHORE DISTRICT COURT [2024] NZHC 1208 [15 May 2024]

AND  EMMA MARION GIBBS

Third Respondent

AND  SERGEANT SHAUN VICKERS

Fourth Respondent

AND  BRITTANY WALLACE-SHARPE

Fifth Respondent

AND  ALLAN NIXON

Sixth Respondent

AND  MURRAY EVANS

Seventh Respondent

AND  SUSAN WRECKE

Eighth Respondent

AND  CHRISTINA MARGARET RIDDELL

Ninth Respondent

[1]                 Ms Dunstan brings a proceeding for judicial review of a decision of the North Shore District Court rejecting documents presented by her for filing in a private prosecution.

[2]The North Shore District Court abides the decision of this Court.

[3]                 The second to ninth respondents have not been required to file statements of defence and have taken no steps. Indeed, they should not be respondents because they had no part to play in the challenged decision of the North Shore District Court. Accordingly, I strike them out as respondents.

[4]                 Ms Dunstan was given leave to bring the proceeding by van Bohemen J in his Minute of 16 February 2024. The Judge recognised that Ms Dunstan must succeed in her application for judicial review because of procedural error in the North Shore District Court. I reproduce and adopt, with respect, van Bohemen J’s analysis:

The decision sought to be reviewed

[4]        On 1 February 2024, Ms Dunstan received an email from the North Shore District Court regarding documents Ms Dunstan had filed in a private prosecution that she seeks to bring, apparently against seven current or former police officers and a solicitor. The email stated:

After reviewing the documents you have filed Judge has made the following ruling,

“Having looked at the witness statement of Ms Dunstan dated 16/1/24 my ruling is that it contains no prima facie evidence of criminal offending.

It is all supposition, conjecture, speculation and bald statements with little to no evidential value at all. The test for accepting charging documents is evidential sufficiency to justify a trial. The threshold for determining evidential sufficiency is whether, on a prima facie basis the evidence is sufficient to prove the elements of the charge to the required standard. In this case I can find no evidential sufficiency. Accordingly, the charging documents are not accepted for filing.”

[5]        Ms Dunstan seeks to review the decision of Judge Fraser reflected in the above email. Ms Dunstan says the decision is in breach of s 15 of the Criminal Procedure Act 2011, s 21 of  the  Human  Rights  Act  1993  and Ms Dunstan’s rights under ss 18 and 27 of the New Zealand Bill of Rights Act 1990.

[6]        To decide Ms Dunstan's application for leave, it sufficient to have regard to [s 26] of the Criminal Procedure Act, which relevantly provides:

(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may-

(a)accept the charging document for filing; or

(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (l)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that-

(a)the evidence provided by the proposed private prosecutor in accordance with subsection (l)(b) is insufficient to justify a trial; or

(b)the proposed prosecution is otherwise an abuse of process.

(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must-

(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)retain a copy of the proposed charging document.

(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

[7]        It is apparent that the process provided for in s 26(1) was not followed. When the documents were referred to the Judge, the Judge proceeded to determine the evidential sufficiency of the documents under s 26(3)(a).

[8]        As the Court of Appeal held in [redacted], in a proceeding brought by Ms Dunstan to challenge the decision of another District Court Judge to reject documents that Ms Dunstan wished to file in another private prosecution she wished to bring, it is a fundamental procedural error to reject documents that are considered inadequate without first directing the prosecutor to file formal statements. As the Court of Appeal observed, in doing so Ms Dunstan “... has arguably been deprived of the opportunity to put her best evidence forward”.

Decision

[5]                 I rule that the District Court Judge made an error in law by not complying with s 26 of the Criminal Procedure Act 2011. The Judge should have directed Ms Dunstan

to file her formal statements, and the exhibits referred to in those statements, being the evidence that Ms Dunstan proposes to call at any trial.

[6]The decision of Judge Fraser is quashed.

[7]                 The District Court must now comply with s 26(1) of the Criminal Procedure Act in relation to the proposed private prosecution.

[8]                 Ms Dunstan is entitled to be paid her reasonable disbursements, including costs she has reasonably incurred. Any memorandum from Ms Dunstan addressing this matter must be filed and served no later than 21 working days from the date of this judgment. The first respondent may,  as necessary, file a  response within a further  21 working days.

Brewer J