G v District Court at Auckland CA199/03

[2004] NZCA 423

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA199/03

BETWEEN

A J G

Appellant

AND

THE DISTRICT COURT AT AUCKLAND

First Respondent

AND

THE ATTORNEY-GENERAL

Second Respondent

Hearing:         24 June 2004

Court:             Anderson P, Hammond and Chambers JJ Counsel:     J F Mather for Appellant

R B Squire QC for Second Respondent Judgment:     1 December 2004

JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe second respondent will have costs of $6,000 together with her reasonable disbursements. If counsel cannot settle the disbursements same are to be fixed by the Registrar.

G V THE DISTRICT COURT AT AUCKLAND And Anor CA CA199/03 [1 December 2004]

REASONS

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1]

Background  [2]

The judgment in the District Court  [16]

The judgment in the High Court  [26]
The appeal to this Court  [34]

Discussion

The abuse of process jurisdiction  [46]

Reasons for no stay  [53]

Conclusion  [61]

Introduction

[1]    This is an appeal against a decision of a High Court Judge declining judicial review of a decision of a District Court Judge not to stay certain criminal proceedings as an abuse of process.

Background

[2]    In December 1996 the Serious  Fraud  Office  (SFO)  began  investigating  Mr G and certain other persons in relation to allegations that motor vehicles

were being imported from Japan with “clocked” odometers.

[3]    While the SFO investigation was proceeding, a Mr Dermot Nottingham commenced   a  private  prosecution  against   Mr  G.  Mr Nottingham had apparently become frustrated with what he regarded as the slow pace of the SFO investigation.

[4]    Mr Nottingham  prepared  an  indictment  alleging  that   Mr G   had conspired with others, contrary to s 257 of the Crimes Act 1961, to defraud the

public  by  lowering  the  odometer  readings  of  imported  Japanese  vehicles.     For convenience we will refer to this prosecution as the “Nottingham prosecution”.

[5]    The Nottingham prosecution advanced to a hearing before Judge Gittos, sitting as a Judge alone, in the District Court at Auckland.  That hearing occupied   13 hearing days in April and May of 2000. The Judge delivered a reserved judgment on 2 June 2000. He found Mr G not guilty of the charge which

Mr Nottingham had laid against him.

[6]    Mr G now  faces  a  prosecution  brought  by  the  Solicitor-General following  on  from  the  SFO  investigation.  We will refer to this as the “SFO prosecution”.

[7]    The SFO indictment contains 24 charges, laid under s 229A(b) of the Crimes Act 1961.  The broad allegation is that Mr G used various documents for the  purpose of obtaining a pecuniary advantage for himself or his used-car sale business. The documents said to be used were papers reflecting lower odometer readings than the actual values.

[8]Applications were brought by Mr G and certain other persons to stay

the SFO prosecution, or for a discharge. Those applications were made under s 358 and s 347 of the Crimes Act 1961. For present purposes, we need deal only with the position of Mr G.

[9]    These applications advanced to a hearing in the District Court before Judge Hubble. Complaint was made about the delays which were said to have occurred from   the  date  of  the  alleged   offences   down   to that  time.  Mr G also complained that he had already stood trial on a related charge alleging conspiracy, and had been found not guilty.

[10]   In a reserved judgment delivered on 22 April 2002, the Judge declined to stay or dismiss the SFO proceeding.

[11]   Mr G thereupon applied to the High Court for a judicial review of that decision.

[12]   By his statement of claim in the  High  Court,  Mr G  asserted  that  the rulings made by Judge Hubble were invalid for either or both of the following reasons:

(a)They were not made in accordance with law, in particular the provisions of ss 358 and 347 of the Crimes Act 1961. Insufficient account was taken of the acquittal of the plaintiff upon prosecution by a private prosecutor.

(b)They were made without correctly applying the principles in respect of dismissing or staying proceedings for abuse of process. In particular, insufficient weight was given to:

(i)the mutuality of interest between the private prosecutor and the second defendant;

(ii)the identity of issues in the prosecutions by the private prosecutor and the second defendant;

(iii)the public interest in matters not being relitigated;

(iv)the plaintiff’s private right to be free from abuse of process (s 27 of the New Zealand Bill of Rights Act 1990); and

(v)the delay of the second defendant.

[13]   That proceeding was heard by O’Regan J. The Judge delivered a judgment  on 18 October 2002 (AP50-SW02 (PL)) declining Mr G’s application.

[14]   Although a number of remedies had been sought, the High Court Judge recorded that counsel for Mr G had indicated at the hearing before him that

Mr G was by then seeking (only) a declaration that the decision of the District

Court was invalid, an order setting aside that decision, and the remission of the proceeding back to the District Court, with a direction that a stay be granted, and costs.

[15]Having failed to secure that relief, the appellant now appeals to this Court.

The judgment in the District Court

[16]   Before Judge Hubble, Mr G argued that the extensive delay which had occurred from the date of the alleged offending (between November 1995 and April 1997) and the time of the hearing, as well as the fact that he had already stood trial and been acquitted of conspiracy, meant that he should be discharged under ss 358 and 347 of the Crimes Act on the SFO prosecution.

[17]   The Judge observed that a key item of evidence in both prosecutions was a document known as the “Nikki List”. That document contained a list of vehicles  with columns alongside them which, allegedly, indicated the original mileage and the clocked mileage, plus a fee allegedly paid to Nikki  Corporation  in  Japan  by  Mr G to have the vehicles clocked.

[18]   Before Judge Gittos, Mr G had accepted that clocked  vehicles  were imported  into  New Zealand  pursuant  to  the Nikki List.  But he had denied any knowledge that they were clocked. Judge Gittos did not accept that there was any admissible evidence that Mr G had conspired with the Nikki Corporation or

any other parties to defraud the public.

[19]   Judge Hubble first considered whether  Mr G  should  be  discharged pursuant to s 358 of the Crimes Act 1961 because he had already been acquitted on the  conspiracy  count  in  the   SFO  prosecution.  The Judge concluded that the application could not succeed because the count on which he had been acquitted (conspiracy) was not the same in whole or in part as the counts of using a document. In the Judge’s view, the concerns behind the autrefois acquit and autrefois convict rules about the dangers of duplicity and double jeopardy did not here apply.

[20]   The application under s 347 to stay the proceedings on the basis of delay was an appeal to the Court’s common law jurisdiction to prevent an abuse of process.

[21]The SFO investigation had begun in mid-1995, and Mr G and his two

co-accused had become suspects after interviews conducted in December of 1996. The charges were laid on 1 February 2000, some three years later.

[22]   It was argued for Mr G that under s 25 of the New Zealand Bill of Rights Act 1990 he was guaranteed a trial without undue delay.

[23]   Judge Hubble did not accept that it was unreasonable for the SFO to pursue inquiries throughout 1998 and 1999 before arresting Mr G. Delays of up to

four years in  complex  fraud  cases  involving  extensive  investigations  within  New Zealand have not, he said, been fatal to subsequent prosecutions, especially where complex investigatory proceedings involving a foreign country substantially add to delays.

[24]   In the Judge’s view, Mr G could not  be  said  to  have  sustained  any specific prejudice.    He was still able to locate important evidence to dispute the allegations against him.

[25]   Judge Hubble accepted that some weight could be  given  to  the  fact  that  Mr G had already faced trial, but any weight had  to  be  minimal  because  the proper test of whether the SFO prosecution could go ahead had already been determined under s 358. In the Judge’s view, the delay did not warrant a stay of proceedings in this case.

The judgment in the High Court

[26]   Parliament has carefully considered which preliminary decisions in criminal prosecutions can be appealed, and which cannot be. There is no right of appeal as such against the decision of a Judge under s 358 or s 347, or for that matter against a finding of no abuse of process. Still less is there any right to what might be termed a “quasi-appeal” by means of judicial review. To get within that head of relief a compelling case would have to be made out.

[27]   Accordingly, O’Regan J observed that on the judicial review application of the decision not to stay the proceedings, Mr G was required to establish that

there had been an error of law, and of such a character as to justify the intervention of the High Court.

[28]   The Judge noted that the s 358 argument was not further pursued before him in the High Court. The appellant conceded that the different content of the  prohibited conduct under s 257 and s 229A(b) meant there was no danger of double jeopardy.

[29]   In relation to the s 347 application, O’Regan J accepted the approach of the District Court Judge in treating it as (essentially) an application for stay for abuse of process.

[30]   The Judge set out the Court’s jurisdiction in relation to an alleged abuse of process by reference to Fox v Attorney-General [2002] 3 NZLR 62 where this Court said:

These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will,  however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits will tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect the Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases (at [37]).

[31]   The Judge accepted that, to some extent, the second trial would be based on an allegation of an arrangement involving the appellant and Nikki Corporation, at least in relation to the knowledge component of s 229A(b). In this respect it would be similar to the conspiracy allegation in the private prosecution. However there was no error of principle in Judge Hubble’s approach to the abuse of process claim. The fact that the appellant had been the subject of a private prosecution could be given little weight because he could not argue prejudice arising from a situation of autrefois acquit. The application under s 358 had already dealt with that and:

Having decided in the absence of any other grounds for arguing there is an abuse of process (such as delay), and that a prosecution is appropriate, it is difficult to see why the existence of other factors such as delay convert the overlap of the two prosecutions into a matter of abuse (para [35]).

[32]   O’Regan J also dismissed the appellant’s argument that there was a mutuality of interest between the Nottingham prosecution and the SFO prosecution. The Nottingham prosecution was not done with the SFO’s support or approval.

[33]   Ultimately the appellant had failed to establish that the process of the Court was being wrongly made use of. There was no reason why he could not have a fair trial, and the fact of the delay did not alter that position. This was a matter where the power of review should be exercised sparingly, and this was not an appropriate case for the exercise of the power. The application for judicial review was accordingly dismissed.

The appeal to this Court

[34]It is as well to begin by identifying what is not in issue on this appeal.

[35]   In the High Court, O’Regan J (correctly) noted that “there are some real difficulties with the case argued by [Mr G], which focused on the merits and

was argued as if the plaintiff were exercising a right of appeal, rather than making an application for judicial review, in circumstances where the discretion to grant review is sparingly exercised” (para [24]).

[36]   Further, although the statement of claim in the High Court sought review of Judge Hubble’s decision in relation to s 358, that issue was not in fact pursued  before O’Regan J.

[37]   What was left for determination was, therefore, whether, on an application  for judicial review in the High Court, O’Regan J should have held that the prosecution against Mr G by the SFO should be stayed as an abuse of process.

[38]   Once that issue is appreciated, the difficulties confronting the appellant on this appeal are manifest: the appellant must show that the High Court Judge was wrong in declining judicial review in an area which quite necessarily entailed the exercise of a discretion, first by the District Court Judge, and then by the High Court on review.

[39]   We think it does no injustice to Mr Mather’s arguments if we reorder them under three heads, which we think fairly encapsulate what was put to us.

[40]   First,  Mr Mather  expressly  relied  on  a  passage  from  the  speech  of   Lord Hutton in Regina v Z [2000] 2 AC 483 for the proposition that a prosecution may be halted, as an abuse of process, where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal. Lords Browne-Wilkinson, Hope, Hobhouse and Millett all agreed with Lord Hutton’s observations, in some of the speeches with slight amplification.

[41]   It is convenient at this point to set out the principles in the passage relied on, which Mr Mather said “encapsulated his case”:

My Lords, I consider, with great respect, that in Sambasivam’s case it was right to set aside the conviction, and that the proper ground for doing so was for the reason given by Lord Pearce in Connelly v Director of Public Prosecutions [1964] AC 1254, 1362, 1364, namely, that a man should not be prosecuted a second time where the two offences were in fact founded on one and the same incident and that a man ought not to be tried for a second offence which was manifestly inconsistent on the facts with a previous acquittal. The carrying of the revolver and the carrying of the ammunition constituted one and the same incident, and having been acquitted of having possession of the ammunition the allegation of carrying the revolver (in which some of the ammunition was loaded) was manifestly inconsistent with the previous acquittal. But I consider that provided that a defendant is not placed in double jeopardy in the way described by Lord Pearce, evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier been acquitted. Therefore I think that in the relevant passage of Lord MacDermott’s judgment, at p 479, the second sentence commencing “To that it must be added” requires the qualification which I have ventured to state.

A consideration of the authorities and of the textbook writers and commentators leads me to the following conclusions. (1) The principle of double jeopardy operates to cause a criminal court in the exercise of its discretion, and subject to the qualification as to special circumstances stated by Lord Devlin in Connelly’s case, at p 1360, to stop a prosecution where the defendant is being prosecuted on the same facts or substantially the same facts as gave rise to an earlier prosecution which resulted in his acquittal (or conviction), as occurred in Reg. v Riebold [1967] 1 WLR 674 and the cases cited by Lord Pearce in Connelly’s case, at pp. 1362-1364, and see also Reg. v Beedie [1998] QB 356. (2) Provided that a defendant is not placed in double jeopardy as described in (1) above evidence which is relevant on a subsequent prosecution is not inadmissible because it shows or tends to show that the defendant was, in fact, guilty of an offence of which he had earlier

been acquitted. (3) It follows from (2) above that a distinction should not be drawn between evidence which shows guilt of an earlier offence of which the defendant had been acquitted and evidence which tends to show guilt of such an offence or which appears to relate to one distinct issue rather than to the issue of guilt of such an offence. Accordingly the judgments in G. (An Infant) v Coltart [1967] 1 QB 432 should not be followed. (Emphasis added) (at 504-505).

[42]   Mr Mather’s second point is that the basis on which the Nottingham prosecution was run, and the basis on which the SFO case would be run, is the same, in that an inference of dishonest knowledge is sought to be drawn by the prosecution from precisely the same evidence. This, he said, should lead to a stay.

[43]   Thirdly, Mr Mather submitted that there are no special circumstances which make it reasonable for the SFO prosecution to proceed in this particular instance.

[44]   In broad terms, Mr Squire QC refuted each of these propositions, in the context of this particular case. More fundamentally, he also submitted that the entire endeavour of trying to halt this prosecution by an abuse of process application was misconceived. In his submission, to the extent that there is any problem in this case

- and he did not concede that there is - he submitted that it would have been better handled as an  application  by  Mr G’s  counsel  to  exclude  this  evidence altogether, rather than by bringing an abuse of process application.

[45]   Mr Squire further submitted that there is a real difference between the context of a charge of conspiracy and a charge of using a document. In Mr Squire’s submission, the s 229A charge would not be complete until Mr G later used

the document. He would then use the product of what might have been  a  conspiracy, but it would be “subsequent” to it. The practical importance of this point is that, in Mr Squire’s submission, the two charges could not appropriately have been run together, or at least that there would have been very real difficulties in an endeavour to do so.

Discussion

The abuse of process jurisdiction

[46]   Mr Mather’s first point goes to the basis and extent of the jurisdiction of a Court in New Zealand to halt a prosecution for an abuse of process.

[47]   In Moevao v Department of Labour [1981] NZLR 464 this Court confirmed that there is jurisdiction to stay a proceeding for an abuse of process. Richmond P said:

However it cannot be too much emphasised that the inherent power of a stay of prosecution stems from the need of the court to prevent its own process from being abused. Therefore any exercise of the power must be approached with caution. It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the court is itself being wrongly made use of (at 470). (Emphasis added).

[48]   That jurisdiction was confirmed and elaborated upon in Fox v Attorney- General, [30] above. We are not persuaded that this case calls for a review of the principles there laid down.

[49]   We do note that s 26(2) of the New Zealand Bill of Rights Act 1990 (to which only passing reference was made before us) provides:

No-one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

[50]   The weight of authority to date is that this provision is merely illustrative or declaratory of  the  existing  law:  see  O  v  U  (1996)  4  CRNZ  76  at  83;  and  in R v McLeay CA349/96 14 April 1997 this Court noted that s 26(2) “affirmed” the prohibition against double punishment contained in s 10(4) of the Crimes Act 1961. The White Paper on the Bill of Rights had itself suggested that this provision “enshrines the rules against double jeopardy already contained in the Crimes Act”  (A Bill of Rights for New Zealand (1985) AJHR A6, at 98).

[51] As to the identity of offences, we see no reason to narrow s 26(2) of the New Zealand Bill of Rights: that provision (as under the existing law) should be read as requiring only that the original and the current offences be “substantially the same”. That is consistent with the established law (see, for instance, Lord Hutton, [41] above). We accept the proposition articulated by Lord Hutton in Z which is relied

upon by Mr Mather.  But, on the facts of the case before us, we do not accept that  Mr G is being prosecuted twice “on the same facts or substantially the same

facts as gave rise to an earlier prosecution”. We will enlarge on this point when dealing with the facts of the instant case, to which we now turn.

[52]   Applying the well established principles for the exercise of this doctrine in New Zealand we consider that this application was always going to fail. We now set out our reasons for that conclusion.

Reasons for no stay

[53]   One preliminary matter - the onus of proof - can be disposed of at the outset. Mr Mather submitted that there are no special circumstances which made it reasonable for the prosecution to proceed in this instance. That proposition misconceives the onus of proof. The claim to a stay or dismissal for abuse  of  process rests on the proponent of such a claim; and such a claim must be clearly made out.

[54]   We now turn to the character of the proceeding before us. At the end of the day, Mr Mather’s argument was that the District Court Judge had wrongly applied the established principles for abuse of process and had placed insufficient weight on certain factors. Had there been a right of appeal, the appeal, being an appeal from an exercise of a discretion, must necessarily have failed because it is well established that what weight is given to relevant factors is a matter for the first instance Judge, and is not correctable on appeal. We reinforce the point we made earlier in this judgment: it is distinctly problematic to mount a judicial review application on what is effectively a criticism of the weight to be accorded to the various relevant factors in an application of a discretionary character. This criticism of the appellant’s manner of proceeding was rightly stressed by O’Regan J, but was persisted with in this Court.

[55]   Having said that, the factors which were relied upon by Mr Mather as having been given insufficient weight were: (a) the Nottingham prosecution and the SFO prosecution were (he maintains) essentially the same, even though it was conceded

that the case did not come within s 358; (b) the evidence to be given in the SFO prosecution will largely overlap with the evidence in the Nottingham prosecution, and the inference or inferences which the SFO prosecutor will want the trier of fact to draw are the same as Mr Nottingham tried to persuade Judge Gittos to draw; (c) the delay in bringing the prosecution.

[56]   To a marked extent (a) and (b) are the same argument, dressed up slightly differently. However they are articulated, the two arguments singly or together do not come to anything. It is true that a substantial issue in both cases is the  appellant’s knowledge that the odometers were wound back. A key item of evidence in both prosecutions is the Nikki list. This is said to establish that the vehicles had been clocked and that the appellant had commissioned Nikki Corporation to clock them. However that was not the only evidence the Crown was relying on. The  Crown says that (at the very least) there was “wilful blindness” on Mr G’s

part.

[57]   Then, too, the nature of the two charges is quite different. Mr Nottingham’s conspiracy prosecution set out to establish a prior agreement by Mr G, which necessarily had to be formed with at least one other person. On the other hand, the SFO prosecution relates to the actual and dishonest use of particular documents by Mr G.                   There is a world of difference between the two offences and the purpose     for which the evidence would be used.

[58]   These differences are a complete answer to Mr Mather’s argument that this case is covered by the principle cited from Re Z, above. There may well be cases where the overlap between two offences is so complete, or so nearly complete, as to give rise to an abuse of process. Sambasivam [1950] AC 458, which is a case referred to by Lord Hutton in Re Z, is a very good illustration of such an instance. Six of the ten rounds of ammunition which founded a charge of unlawful possession of ammunition were actually loaded into a revolver. The other four rounds were in a bag. Mr Sambasivam had been charged with, but found not guilty, of carrying that revolver. Having failed to get a conviction on the weapon charge, the prosecution persisted in endeavouring to get a conviction with respect to the ammunition. That was inappropriate. The instant case comes nowhere near that situation.

[59]   On the question of delay, it is entirely regrettable that this matter has occupied law enforcement authorities and the Courts for several years now. There is a private interest for the appellant, and certainly a public interest, in bringing criminal charges to finality. It is also easy to appreciate Mr G’s concern that

he is facing a second set of criminal proceedings, and doubtless the attendant expense and worry of them. That, however, has come about in the unusual circumstance of a private prosecution having been brought. An appeal of this character is not an inquiry, and this Court is not in a position to assess, even if it was otherwise its function to do so, whether the SFO should have advanced matters more promptly. But once Mr Nottingham’s prosecution had intervened its assiduous pursuit somewhat overtook the SFO investigation.

[60]As against what might be said for Mr G, regard should properly be

had to the position of victims; the distinct public interest in seeing an alleged scam of this kind brought before the Court; the fact that loss was caused to members of the public; and the fact that some persons associated with this enterprise were sentenced to prison terms. In our view these factors outweigh - by some considerable margin - the factors going to Mr G’s personal position.

Conclusion

[61]   In the result, the appeal fails. The attempt to unhorse the prosecution was procedurally misconceived; a claim of abuse of process cannot be made out on the facts; and there are no discretionary considerations which (even if they could appropriately be raised) would tell against the SFO prosecution being enabled to proceed.

Solicitors:

Upper Harbour Law Centre, Auckland for Appellant SFO, Auckland for Second Respondent