G v District Court at Auckland CA199/03

This appeal concerns an application by A J G to the High Court for a judicial review of a decision by a District Court Judge not to stay a prosecution brought by the Solicitor-General (SFO prosecution) as an abuse of process. Mr G had previously been acquitted of conspiracy in a private prosecution (Nottingham prosecution) concerning the same subject matter. The High Court Judge dismissed the application for judicial review. Mr G now appeals to this Court. The appeal was dismissed. The Court found that the attempt to unhorse the prosecution was procedurally misconceived; a claim of abuse of process could not be made out on the facts; and there were no discretionary considerations which would tell against the SFO prosecution being enabled to proceed. The Court rejected the argument that the SFO prosecution should be stayed because it was an abuse of process on the basis that the Nottingham prosecution and the SFO prosecution were essentially the same, the evidence in the two prosecutions would largely overlap, and there had been an unreasonable delay in bringing the SFO prosecution. The Court found that the SFO prosecution related to the actual and dishonest use of particular documents by Mr G, while the Nottingham prosecution set out to establish a prior agreement by Mr G, which necessarily had to be formed with at least one other person. The differences between the two offences and the purpose for which the evidence would be used were a complete answer to Mr Mather’s argument that this case was covered by the principle cited from Re Z. The Court also found that while it was regrettable that this matter had occupied law enforcement authorities and the Courts for several years, the factors weighing in favour of proceeding with the SFO prosecution outweighed the factors going to Mr G’s personal position. The Court noted 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.