Goodman Fielder New Zealand Ltd v District Court at Porirua
[2019] NZHC 599
•27 March 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-485-785
[2019] NZHC 599
BETWEEN GOODMAN FIELDER NEW ZEALAND LTD
First ApplicantAND
HALL’S REFRIGERATED TRANSPORT LIMITED
Second Applicant
AND
ENGIE SERVICES NEW ZEALAND LIMITED
Third Applicant
AND
THE DISTRICT COURT AT PORIRUA
First Respondent
AND
JAYDEN ANDREW RICKARD-SIMMS
Second Respondent
Hearing: 18 March 2019 Appearances:
P F Wicks QC and T L Clarke for the Applicant D J S Parker for the Second Respondent
Judgment:
27 March 2019
JUDGMENT OF COOKE J
[1] The applicants challenge a decision of His Honour Judge Hastings made under s 26 of the Criminal Procedure Act 2011 (the Act) to accept documents for filing initiating a private prosecution of the applicants by the second respondent. Offences under the Health and Safety Work Act 2015 are alleged as a consequence of a workplace accident on 20 April 2016. The decision was made on 28 June 2018, with His Honour recording his decision by a minute dated 7 September 2018.
GOODMAN FIELDER NEW ZEALAND LTD v THE DISTRICT COURT AT PORIRUA [2019] NZHC 599
[27 March 2019]
[2] There is no right of appeal against decisions made by the District Court to accept charging documents for private prosecutions for filing, but it is recognised that such decisions can be challenged by way of judicial review.
The factual background
[3] The first applicant (Goodman Fielder) leased a warehouse at 21 Cashew Street, Granada North, Wellington. It sub-leased part of the site to the second applicant (Hall’s Refrigerated Transport). The third applicant (Engie Services) was engaged to maintain the refrigeration system at the site.
[4] Mr Rickard-Simms was employed by Engie Services as an apprentice refrigeration technician. On 20 April 2016 he was sent to the site to defrost a ceiling mounted refrigeration unit inside a large chiller room at the site. To do so he used a seven-step A-framed ladder, and was required to spray warm water from a wand to defrost the unit. The ladder he ascended was immediately next to the entrance to the chiller room. The entrance was curtained by plastic material. Other employees used that entrance to bring stock in and out of the chiller using forklifts.
[5] There is no dispute that Mr Rickard-Simms fell from the ladder and suffered a very serious head injury. The injury resulted in him being in the intensive care unit at Wellington Hospital for 14 days. He continues to suffer adverse effects from this injury.
[6] As a consequence of the injury Mr Rickard-Simms is not able to remember what happened on the day of the accident. The accident was, however, investigated by WorkSafe New Zealand.1 As part of that investigation WorkSafe conducted interviews of other persons who were present at the time of the accident. In an interview conducted on the day of the accident, an employee confirmed he had been operating a forklift that moved in and out of the chiller through the entranceway whilst Mr Rickard-Simms was undertaking his work. The employee said that when he had driven the forklift through the plastic curtain at the entranceway he had clipped
1 WorkSafe New Zealand is established under s 5 of the WorkSafe New Zealand Act 2013 and is the Regulator of the Health and Safety Work Act 2015.
Mr Rickard-Simms ladder with the forks of the forklift causing it to fall. At a subsequent interview on 16 September 2016 he explained that he had driven up to the entrance way, tooted the horn of the forklift, and then proceeded to enter but that when the forks from the forklift had gone through the curtains he had seen a blur of movement on the other side. He then stopped, got down from his forklift, went through the curtains and found Mr Rickard-Simms lying on the floor next to the overturned ladder.
[7] WorkSafe conducted interviews with other people, gathered further information, and ultimately provided an investigation report. Worksafe then sent the informant, Mr Rickard-Simms, notice of its decision not to prosecute on 27 April 2017. It would appear that one of the factors taken into account by WorkSafe in deciding not to prosecute was an uncertainty as to the immediate cause of Mr Rickard-Simms falling from his ladder.
[8] On 18 April 2018 Mr Rickard-Simms filed papers in the District Court at Porirua seeking to commence a private prosecution. The charging documents allege that Goodman Fielder committed five offences under the Health and Safety Work Act 2015, Hall’s Refrigerated committed five offences, and Engie Services committed three offences. Two formal statements were subsequently filed, being Mr Rickard- Simms’s own statement dated 26 April 2018, and a statement of proposed expert evidence from Mr Michael Cosman dated 1 May 2018. In addition, a memorandum identifying an intention to have the proposed charges heard together was filed.
[9] Pursuant to s 26 of the Act the Registrar referred the documents to Judge Hastings. The defendants were not served or informed of the proposed charges. On or about 28 June 2018 Judge Hastings emailed the Registrar to say that the documents should be accepted for filing under s 26 and that he would subsequently issue a fuller direction. He repeated that instruction on 28 July 2018 after the Registrar advised that she was waiting for the fuller direction before advising the parties. On 31 July 2018 the District Court issued a summons to each of the defendants.
[10] The applicants subsequently requested the written reasons for the decision and by minute dated 7 September 2018 His Honour indicated the reasons he had for reaching the decision.
[11] On or about 23 October 2018 these judicial review proceedings were commenced. No further steps have been taken in the proposed prosecution pending the outcome of this challenge.
Section 26 Criminal Procedure Act 2011
[12]Section 26 of the Act provides as follows:
26 Private prosecutions
(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 (1)(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 (1)(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.
[13] There have been a number of decisions of the High Court which address the requirements of s 26 in the context of subsequent judicial review challenges of decisions of District Court Judges. I will address some of those decisions below.
[14] The ability for private persons to bring private prosecutions is regarded as an important safeguard against the monopoly otherwise exercised by the State on decisions to initiate prosecutions. But equally it is recognised that allowing private prosecutions as of right could allow them to be initiated inappropriately. The origins of the current provision can be found in the Law Commission’s Preliminary Paper on Criminal Prosecution published in March 1997.2 After identifying the benefits of allowing private prosecutions, the Commission identified the risks in the following terms:
439 Despite the principle underlying the availability of private prosecutions, the potential exists for individuals acting improperly or maliciously to bring a prosecution and imperil a person’s liberty. As the Prosecution Guidelines point out:
The decision to begin a prosecution against an individual has profound consequences.................. Even if eventually acquitted, he or she
will be subjected to the stresses of public opprobrium, court appearances and possibly a loss of liberty while awaiting trial.
[15] After reviewing possible ways in which to control such prosecutions the Commission reached the following conclusion:
Leave of the court
445 To require the leave of a court for the bringing of certain types of prosecution would not be a complete innovation. The Commission favours a rule that all informations filed by private prosecutors should begin with the leave of a District Court judge. Requiring the leave of a judge before a private prosecution can be commenced has the advantages of independent control, preventing unmeritorious private prosecutions while not inhibiting reasonably brought private prosecutions, and avoiding the danger of executive interference. It allows some preliminary examination of the merits of the case – in particular whether there is a prima facie case – and of the motives of the private prosecutor in bringing the prosecution. In view of the constitutional importance of the right to prosecute, the Commission proposes that an appeal to the High Court should lie against the refusal of leave.
2 Law Commission Criminal Prosecution (NZLC PP28, 1997).
[16] In its subsequent report following consultation the Commission changed its view. The report noted its previous recommendation to:3
[R]equire the leave of a District Court judge, with a right of appeal to the High Court, to bring a private prosecution. It was considered that this approach would allow some consideration of the merits of the case, and also allow the motives of the private prosecutor to be examined by the judge. However, upon further reflection it appears to us that a simpler solution would be to extend the section 347 discharge procedure to the summary jurisdiction.
[17] The Commission nevertheless indicated that there should be a review by a District Court Judge when such a prosecution was initiated.4 In recording the submissions on its initial proposal the Commission noted the Ministry of Justice had suggested that the “stress and expense for a potential defendant in dealing with a leave application may be the same as if proceedings were commenced”.5
[18] What came to be s 26 was then included in the Bill that led to the enactment of the Act.6 The Ministry of Justice Departmental report on the Bill noted that the proposed section allowed a check on inappropriate prosecution, and then said:7
379.Further, clause 147 allows for the dismissal of a charge. Defendants in private prosecutions may apply for dismissal if the conduct of the prosecutor amounts to an abuse of process. If such an application is made, the [prosecution] guidelines can be referred to as a way of checking the conduct of the private prosecutor against what is expected of state prosecutors.
[19] In H T and S F H v The District Court at Auckland, Brewer J described the operation of the section as enacted in the following way:8
[17] Under s 26, a person wanting to bring a private prosecution can seek to file a charging document and a Registrar may simply accept it. If it is accepted, then the prosecution will proceed just like a prosecution brought, for example, by the Police. It is just that the private prosecutor will take the place of the Police. The defendant has the same right as any other defendant to challenge the prosecution from the outset. For example, the defendant can
3 Law Commission Criminal Prosecutions (NZLC R66, 2000) at [267].
4 At [270]. It is possible to read this as suggesting that this should be equivalent to a s 147 argument at this stage, but in full context I doubt that the Commission was recommending this.
5 At footnote 170.
6 Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1), cl 31.
7 Departmental report for the Justice and Electoral Law Committee on Criminal Procedure (Reform and Modernisation) Bill 16 May 2011, Clause 30 – Private Prosecutions (footnotes omitted).
8 T & H v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459 at [17]. One version of the unreported judgment states that there is a name suppression order, and I have proceeded on that basis.
apply to have the charge dismissed because there is insufficient evidence to justify a trial. However, as happened with this case, instead of accepting a charging document for filing the Registrar may refer it to a District Court Judge. The reason is so that the Judge may direct the private prosecutor to put before the Court the evidence that the private prosecutor considers is sufficient to justify a trial. In other words, this is a sifting process designed to protect the proposed defendant from an unnecessary or wrong prosecution. Once the Judge has the evidence, he or she considers it and decides whether to allow the charging document to be filed.
[20] As I address below, a number of decisions of the High Court have emphasised the importance of the protection that the sifting process entails. But in my view it is also important that s 26 not be applied so that it is given a more extensive role than Parliament intended. The purpose of the provision seems to me to have an initial check by a Judge to make sure that the proposed prosecution is not inappropriate. Such a prosecution would be inappropriate if it is apparent that the evidence for the proposed private prosecution is insufficient to justify a trial, or a prosecution is otherwise an abuse of process. In that context there are four features that strike me as being significant about the section as enacted:
(a)The section contemplates that the Registrar can simply accept the charging document for filing without reference to a Judge. This contemplates that there will be some private prosecution where it is not necessary for the review by a Judge to be undertaken, although this would only be appropriate in cases clearly involving no controversy.9
(b)The section contemplates the exercise being done without notice to the proposed defendants — effectively on an ex-parte basis — and without any other express procedural requirements, such as the requirement to serve the intended defendant, or to conduct a hearing.
(c)There is no express requirement for the Judge to give reasons for his or her determination, and there is no right of appeal against the decision.
9 It may also be that the Judge can also decline to give the direction that statements be filed. That seems to me to be the better interpretation of the somewhat ambiguous process of the Registrar referring the matter to a Judge “for” such a direction. Again that would only be appropriate in clear cases involving no controversy. The Court has set aside decisions for not taking that step — see T & H v The District Court at Auckland, above n 8; Mitchell v Porirua District Court [2017] NZHC 1331, [2017] NZAR 1077; Prescott v District Court at North Shore [2017] NZHC 2828, [2018] NZAR 307.
(d)The defendants involved in the proposed prosecution will have all the other rights that defendants usually have, including the right to apply to have the charges dismissed under s 147 of the Act.
[21] This overall framework seems to me to be of significance given the challenges advanced by the applicants here. The applicants argue that the District Court Judge erred, and that his errors warrant the Court quashing the decision under s 26, together with a finding that the proposed private prosecution should not proceed because the proposed evidence is insufficient to justify a trial. In particular the applicants say:
(a)That the Judge erred by not giving the proposed defendants the opportunity to be heard. They say that the particular circumstances of this case warranted them being given that right.
(b)That the decision was not in accordance with law because, in the circumstances of this case, the District Court Judge should have provided reasons for his decision under s 26, and that the reasons he gave did not demonstrate that the requirements of s 26 were satisfied.
(c)That the Judge also erred by failing to consider the position of each of the three defendants separately and by failing to address whether the threshold assessment of sufficient evidence justifying a trial was met for each defendant.
(d)That the Judge erred in considering whether the evidence met the requirement of s 26(3)(a), particularly by relying on evidence of a hearsay nature, which should not have been taken into account.
[22]I will address each of these matters in turn.
Defendants’ right to be heard
[23] First Mr Wicks QC for the applicants argued that the Judge erred by failing to give the applicants an opportunity to be heard on the s 26 determination. He argued that this was necessary in the particular circumstances of this case. Amongst the
circumstances emphasised were the fact that WorkSafe had made the decision not to prosecute, and that Mr Rickard-Simms had an obvious personal interest in bringing the prosecution.
[24] Mr Wicks was able to provide some support from his submission in the authorities. In Wang v North Shore District Court (No 2) Woolford J quashed a s 26 decision. When doing so he said:10
[59] It appears that no consideration was given by Judge Sinclair to the issue of whether counsel for the defendants should be afforded the opportunity to make submissions on the issue of summonses to them. In any event, no decision is recorded. Again, it is unnecessary in the context of this case for me to make a finding that there has been a breach of legitimate expectation on the part of the defendants that they would be heard. Again, it would have been helpful if I had heard full argument on this issue.
[60] I am, however, of the view that it is good practice to invite a proposed defendant to provide material and make submissions prior to the Court accepting a charging document for filing as evidenced by the rulings contained in the recent case of Hard v Koncke and the minute of Judge B Davidson at the Masterton District Court dated 15 April 2014 in Forrest v Morris.
[25] In H Construction North Island Ltd v District Court at Auckland Whata J held that “… even though there is no duty to hold a hearing, where a Judge considers a defendant’s input is needed to make a properly informed decision, s/he should have a discretion to do so”.11 Such an approach was effectively endorsed by Cull J in Mitchell v Porirua District Court where the District Court Judge had allowed the defendant to file witness statements, which were addressed at a hearing so that the Judge could “properly inform himself of all material facts in order to make a proper assessment of whether or not a prima facie case had been made out”.12 In Prescott v District Court at North Shore Davison J also indicated that in some instances a District Court Judge may consider it appropriate that the defendants be served and be given an opportunity to be heard.13
10 Wang v North Shore District Court (No 2) [2014] NZHC 2756, [2014] NZAR 1428 (footnotes omitted).
11 H Construction North Island Ltd v District Court at Auckland [2018] NZHC 2327 at [53] (footnotes omitted).
12 Mitchell v Porirua District Court, above n 9, at [74].
13 Prescott v District Court at North Shore, above n 9, at [54].
[26] None of these decisions go as far as suggesting that there is an obligation on the Judge to serve the defendant, hold a hearing, or allow the defendant to file materials themselves, however. In my view such an obligation would not be consistent with the overall statutory scheme. As Brewer J held in H T and S F H v The District Court at Auckland:14
[44] It used to be that criminal procedure in serious cases required a preliminary hearing to take place to determine evidential sufficiency. That is no longer the case. Neither is it the law that a State prosecutor cannot bring a charge without giving the proposed defendant a chance to give his or her version of events. What matters is the strength of the evidence able to be called by the prosecutor to prove the charge. Other mechanisms, such as the right to bring an application that charges be dismissed for lack of evidence or for abuse of process, provide safeguards for defendants if prosecutions are launched without evidential sufficiency or vexatiously. For my part, I would not impose on the District Court an obligation, when considering the s 26 jurisdiction, to seek the views of the proposed defendants.
[27] In other statutory contexts the Court of Appeal has observed that there is an important difference between giving affected parties an ability to participate as a matter of good practice, and a requirement that they be able to participate as a matter of legal obligation enforceable by way of judicial review.15 Here there is no legal obligation to serve the defendants, or give the defendants a right to be heard. By itself that seems to me to be fatal to the applicants’ argument. The Judge’s decision here is not unlawful by reasons of a failure to allow the defendant to be heard.
[28] I am also not convinced that serving the defendants, giving them the opportunity to file their own material, or having a hearing are necessarily appropriate steps, or good practice. The process of engaging in an inter-parties hearing of the kind contemplated does not seem to me to be consistent with the choice made by Parliament on the nature of the review to be conducted by a Judge on the appropriateness of a private prosecution being commenced. That is not the procedure that is spelled out within s 26. If it was intended that there be such a hearing other issues would need to be addressed, such as the need for the Judge to issue a decision giving reasons, and rights of appeal to the High Court. Supplementing the statutory procedure in s 26 with an additional requirement to serve the defendants, coupled with a hearing and a right
14 T & H v The District Court at Auckland, above n 8.
15 Lab Tests Auckland Ltd v Auckland District Health Board [2008] NZCA 385, [2009] 1 NZLR 776 at [314].
of appeal to the High Court exercised by way of judicial review, is not consistent with the overall statutory scheme.
[29] One of the reasons why Parliament may have decided not to have such decisions made following a hearing, with rights of appeal, may well be the potential delays to criminal procedure that would result. In the present case there has been a delay of approximately one year from the original filing of these prospective charges, including for the purposes of allowing this judicial review to be filed, heard and determined. That seems to me to be undesirable. The additional procedures that would be involved add further complexity. It is noteworthy that some of the earlier decisions have involved lengthy hearings in the District Court followed by equally lengthy judicial review challenges. Moreover for reasons that I will elaborate on below, the authorities now appear to create some confusion as to the approach that should be followed by a District Court Judge.16 In my view these are problematic ramifications of introducing an additional layer of procedural requirement, or steps described as good practice, which have the capacity to interfere with the efficient disposal of proceedings before the Court.
[30] In my view the type of screening process that Parliament enacted in s 26 is directed to more clear-cut cases. It operates as a check, albeit an important one, to ensure that a private prosecution is not inappropriate. It only contemplates potentially inappropriate prosecutions under s 26(3)(a) where it is apparent on the face of the material relied on by the prospective prosecutor that the case should not be allowed to be filed. There are other legislative mechanisms to deal with arguments about the charges that are more appropriately dealt with at an inter-parties hearing between the parties, including a hearing of an application under s 147 of the Act that the charges be dismissed. That includes the opportunity for defendants to contend that the evidence the prosecutor seeks to adduce is insufficient to warrant the matter continuing to trial, or that the proceedings are an abuse of process. To some extent s 147 covers similar territory to s 26. But the sections have different purposes. Section 26 is directed to potential private prosecutions that can be seen to be inappropriate at the very outset, generally described by the Law Commission as proceedings that are
16 See [62] below.
improperly or maliciously brought.17 In that context I agree with the observations of Whata J in H Construction North Island Ltd where he said:18
[51] There is nothing express in the scheme of s 26 that requires a hearing or the gathering of information other than that provided by the intended private prosecutor. Rather it contemplates a filtering or screening exercise on the papers. By contrast, s 147 expressly envisages active defendant participation and a hearing. It is evidently the purpose-built process for ventilating substantive challenges to the prosecution case in advance of trial.
[31]For these reasons I reject this ground of challenge.
Failure to provide adequate reasons
[32] The applicants next ground of challenge is to some extent related. Mr Wicks argued there was a duty on the District Court Judge to provide reasons for his s 26 determination, and the reasons provided in the present case were inadequate.
[33] Again there is support for the applicants’ argument. In Wang v North Shore District Court, Duffy J set aside a s 26 decision because of a failure to provide a reasoned decision. This was the first of two successful judicial review challenges in the Wang case. She held:19
[27] As was recognised by Brewer J in Burchell, the discretion whether to issue a summons or not provided a valuable safeguard against an abuse of the ability to bring a private prosecution. With a private prosecution, there would not likely be the same degree of reliance placed on the prosecutor to act responsibly as that which could be placed on prosecuting authorities. Thus, closer scrutiny of the basis for a private prosecution would be warranted. A requirement for a District Court Judge to give explicit reasons for the issue of a warrant in such cases would give proposed defendants additional protection from potential abuse of this power. Whether the same could be said for other prosecutions is a separate question that would require consideration of policy implications of broader scope than those raised by the present question for determination.
[28] A requirement to provide explicit reasons for issuing a summons in a private prosecution would not be onerous as such prosecutions are relatively rare. Moreover, the extent to which a Judge would go when giving reasons for issuing a summons would hinge on the circumstances of the particular case. As was recognised at [82] of Lewis v Wilson & Horton, at times only brief reasons will be required:
17 Law Commission Criminal Prosecution, above n 2.
18 H Construction North Island Ltd v District Court at Auckland, above n 11, at [51].
19 Wang v North Shore District Court [2013] NZHC 3126, [2014] NZAR 101 (footnotes omitted). Her order for reconsideration gave rise to Wang v District Court North Shore (No 2), above n 10.
The reasons may be abbreviated.... What is necessary, and why it is
necessary was described in relation to the Civil Service Appeal Board (a body which carried out a judicial function) by Lord Donaldson MR in R v Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310 at p 319:
“..... the board should have given outline reasons sufficient to
show to what they were directing their mind and thereby indirectly showing not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree.”
[34] There are two related reasons why a reasoned decision of a District Court Judge could be seen to be desirable, at least in this context. The first is that the discipline of setting out written reasons for a determination ensures that the Judge confronts the relevant questions to be addressed, and goes through a decision-making process explaining in his or her reasoning. Secondly such a written decision allows the parties, and any appeal or review Court, to properly understand why a decision has been reached.
[35] There is no requirement for the Judge to give reasons set out in s 26 itself. In my view this is deliberate. Other provisions regulating proceedings in the District Court include a requirement to provide reasons. In the civil jurisdiction a Judge must cause a record to be kept of the facts in evidence, the questions for determination, and the Judge’s decision for any hearing where there is a right of appeal under s 110 of the District Court Act 2016.20 In the criminal jurisdiction there are more specific provisions: under s 106 of the Act the decision of the Court in any Judge-alone trial must give reasons for a decision; and under s 31 of the Sentencing Act 2002 a Court must give reasons in open Court for the imposition of a sentence. There are other provisions that regulate the Court’s reasons in other contexts: under s 19 of the Bail Act 2000 a decision on the Court in relation to the bail may be publicised; and under s 147 of the Act, a decision to dismiss a charge under that section must be given in open Court. The different requirements in ss 26, 106 and 147 of the Act seem to me to be important.
20 In Edwards v District Court at Lower Hutt [2018] NZHC 1255 I held that these standards had been met in relation to a decision under s 26 without addressing the point that s 110 did not apply to a criminal proceeding.
[36] The provisions suggest to me that the legislature has generally turned its mind to situations where a Court must give reasons for a decision. In the present case there no such express requirement, and the formulation of s 26 suggests a process that is not consistent with the need to provide a written judgment. There is no hearing contemplated by the section, or a process under which the prospective defendant is even served. There is no right of appeal. A decision can be made by the Registrar himself or herself without involving a Judge. To impose a requirement to give reasons as a matter of judicial imperative would not appear to be consistent with the section.
[37] It seems to me that it is appropriate that a record of the s 26 decision is made, however. That is what occurred in the present case. The minute of Judge Hastings sets out the nature of the proposed charges, confirms the jurisdiction of the Court, sets out the requirements of s 26, identifies the test for making assessment as to a sufficient evidential foundation for the matter to proceed to trial, and then records the Judge’s decision. I accept Mr Wicks’ point that the minute does not set out analysis or reasoning explaining why the Judge has reached the conclusion he did.21 But in my view he was not required to do so. Neither was this his apparent intention as he commenced the minute by explaining that the purpose of it was to “formally record the steps taken to date with respect to these matters”.22
[38] In any event, even if there is an obligation for the Judge to provide reasons as suggested by Wang, which may be more important if a decision is made not to accept the charges for filing, it seems to me that the most appropriate course would be for an affected person to request the Judge, through the Registrar, to provide the reasons for the determination. That seems to me to be preferable to the person commencing judicial review proceedings alleging that the decision is unlawful for a failure to provide them.
[39] As to the matters not explained in express reasoning of the Judge within the minute, and the applicants’ criticisms on that basis, they seem to me inherently interrelated to the criticisms of the decision itself. I address the applicants’ arguments
21 I regard the errors in the identification of the charges identified by Mr Wicks as being immaterial.
22 Rickard-Simms v Hall’s Refrigerated Transport DC Porirua CRI-2018-091-001-711, 7 September 2018 at [1].
as to the substance of the decision reached by the Judge below. But in terms of an alleged error of law by virtue of a failure to provide reasons, or adequate reasons, I dismiss the challenge for the reasons explained above.
Considering the position of all defendants
[40] The applicants’ third point is that Judge Hastings did not consider the position of each defendant separately. The proposed prosecutor had sought to file 13 charging documents alleging separate offending by each, and there are separate elements relevant to each of those offences. Mr Wicks argues that this should have been addressed by the Judge.
[41] In Wang v North Shore District Court (No 2) Woolford J upheld the challenge to a District Court’s decision partly on this basis. He considered the written reasons issued by the District Court Judge in that case and held that he was of the view “… that the position of the individual defendants required separate consideration by Judge Sinclair, which he does not appear to have done.”23
[42] I see this argument as related to the argument addressed above that the Judge failed to provide reasons for the determination, or did not provide adequate reasons. As indicated, the minute released by Judge Hastings records that he had satisfied himself on the requirements of s 26 in relation to these charges. But it does not address each of those 13 charges in relation to the three defendants providing reasons why he had reached that conclusion by reference to the elements of the charges in each case.
[43] For the reasons I have already indicated, I do not think that is necessary for the due performance of the requirements of s 26 to require a written judgment covering all of those elements against each of the defendants. That seems to me to introduce a requirement that is not present in the section.
[44] Approaching a judicial review challenge in the normal way, I am not prepared to infer any error from an absence of reasoning set out in a written decision. The Judge
23 Wang v North Shore District Court (No 2), above n 10, at [56].
has indicated satisfaction that the standard for rejecting a proposed prosecution under s 26 did not arise. The material before him provided a proper basis for reaching that conclusion. In this context the position of the three separate defendants is closely interrelated. There are applicable statutory requirements for all persons conducting a business or undertaking at the worksite. Under s 34(1) of the Health and Safety at Work Act 2015 each have a duty as far as reasonably practical to consult and cooperate and coordinate concerning activities of employees at the site in question. There is accordingly a proper basis for the Judge reaching the conclusion that s 26 has been satisfied in this case.
[45] For that reason I am not prepared to infer any error made by the Judge, and I reject this ground of challenge.
The witness statements
[46] The applicants’ final argument is grounded in the express terms of s 26. For this reason in my view it is the argument that has the most strength, and it was the argument that Mr Wicks particularly emphasised in his oral submissions.
[47] Under s 26 a direction can be given for the proposed prosecutor to file formal statements and exhibits, and the Judge must decide under s 26(3)(a) whether the evidence so provided is “insufficient to justify a trial”. The formal requirements for such statements are set out in s 82. The applicants say that Mr Rickard-Simms relied on material other than admissible evidence set out in the witness statements as a basis for the prosecution, including hearsay material in the form of the transcripts of the interviews with the forklift driver, and inadmissible comment in Mr Rickard-Simms witness statement on what he believed happened. Mr Wicks argued that no proper evidence duly set out in witness statements had been provided on the elements of the proposed charges, including evidence that Mr Rickard-Simms had been knocked from his ladder by the forklift.
[48] There is support for Mr Wicks’ argument in the authorities. In T & H v The District Court at Auckland Brewer J held:24
24 T & H v The District Court at Auckland, above n 8.
[25] Section 26 is specific in its direction as to what material a Judge can take into account in deciding whether there is sufficient evidence to justify a trial. There is good reason for that. A person who knows that his or her statement is being taken for the purpose of a Court proceeding, and that they are a potential witness in a criminal trial, is likely to be careful in giving the statement and declaring it to be true. Further, the provision of a formal statement indicates that the person giving it is available to be a witness.
[49]In Prescott v District Court at North Shore Davison J held:25
[47] When the s 26 procedural sequence is followed and s 26(1)(b) employed to direct the filing of formal statements, the Judge will then be in a position to make an informed decision as to the sufficiency of the evidence.
… That is, in my view, much more than a technical requirement. Its function and clear purpose is to ensure that the private prosecutor puts forward evidence with the form and quality of formal statements which are declared by the witnesses to be true and made with knowledge that their statements will be used in court proceedings. …
[50] Elsewhere Davison J described the provisions of s 26 as “prescriptive”.26 This approach led Brewer J to find in T & H v The District Court at Auckland that an affidavit and annexures which did not form part of a formal statement should not have been considered.27 In Prescott v District Court at North Shore Davison J held that the District Court Judge had erred for similar reasons by relying on material from a related civil proceeding.28 In a similar vein Wang v North Shore District Court (No 2) Woolford J held that reliance on inadmissible hearsay in the statements on a critical issue was a fundamental problem, and the Judge should not have relied upon it.29
[51] In addressing this argument I proceed on the basis that the suggested requirement to consider only the witness statements arises solely in relation to the application of s 26(3)(a). The jurisdiction to assess whether the proposed prosecution is an abuse of process under s 26(3)(b) presumably encompasses an ability to consider material beyond the witness statements alone. Abuse of process frequently involves broader considerations, and the abuse of process ground will be most relevant to cases where there may be sufficient evidence to justify a trial, but there is some other reason why the prosecution should not be allowed to proceed.
25 Prescott v District Court at North Shore, above n 9.
26 At [46] and [53].
27 T & H v The District Court at Auckland, above n 8, at [30].
28 Prescott v District Court at North Shore, above n 9, at [44] and [48].
29 Wang v North Shore District Court (No 2), above n 10, at [51]–[54].
[52] Here the case turns on s 26(3)(a). I accept this line of cases referred to above provides a firm foundation for Mr Wicks’ argument that the materials put forward here similarly involved extraneous and inadmissible material. Mr Rickard-Simms filed witness statements solely from him, and an expert. He attached as exhibits to his statement substantial materials from the WorkSafe investigation, including transcripts of interviews. Counsel for Mr Rickard-Simms had indicated, however, that the prosecution intended to call 18 witnesses. Mr Wicks argued that this involved reliance on extraneous material, including inadmissible hearsay, on fundamental issues, including on the actual cause of Mr Rickard-Simms’s accident.
[53] The transcript of the interviews of the forklift driver were exhibited to Mr Rickard-Simms’s witness statement, but they appear to be hearsay statements which are inadmissible. Under s 26 of the Evidence Act 2006 a statement made by a defendant can be admitted in evidence against that defendant. But here the statements were not made by the intended defendants to the prosecution, but rather they were made by one of the employees working at the site. Without intending to finally determine the hearsay question, it would appear that this statement is technically inadmissible under s 18 of the Evidence Act 2006. On the basis of the above authorities, and particularly Wang v North Short District Court (No 2) it should not be taken into account.30
[54] Notwithstanding the above arguments I have concluded that Judge Hastings decision under s 26 was not unlawful for this reason. There are two essential reasons for my view. First, it is not necessary to prove Mr Rickard-Simms was knocked from his ladder to establish an offence. If I exclude the extraneous or inadmissible material contained in the witness statements from consideration, I am still satisfied Mr Rickard- Simms’s evidence alone is sufficient in itself to show an arguable case that there were inadequate procedures in operation at the site at which he was injured. Second, I do not share the view that taken in the authorities addressed above that the terms of s 26 prevent the Judge taking into account material other than admissible evidence the witness statements and exhibits. I elaborate on these two points below.
30 Wang v North Shore District Court (No 2), above n 10.
The contents of statements provided sufficient
[55] First, I accept Mr Parker’s argument that the content of the witness statements as filed were sufficient to justify a trial, even excluding any reliance on any extraneous or inadmissible material.
[56] It is not necessary to prove that Mr Rickard-Simms was knocked from his ladder by the forklift to establish the alleged offences. As Mr Parker submitted, an offence is committed when the applicants fail to take the appropriate steps as defined by the legislative provisions. For example, s 37(1) of the Health and Safety at Work Act 2015 provides:
(1)[a person conducting a business or undertaking] must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.
[57] Under s 34(1) if there is more than one person conducting a business or undertaking in relation to the same matter, each has a duty as far as reasonably practicable to consult and cooperate and coordinate their activities. A person commits an offence if these provisions are breached.31
[58] In the present case this means that it is not necessary for Mr Rickard-Simms to prove that he fell from his ladder as a consequence of a forklift making contact with it when coming through the curtained entrance. Rather he needs to prove the applicants failed to take the reasonable practicable steps to ensure that the workplace was without risks to health and safety.
[59] Mr Rickard-Simms’s proposed admissible evidence alone is sufficient in itself to show an arguable case that there were inadequate procedures in operation at the site at which he was injured. Whilst he cannot give evidence as to the events on the day of the accident, his witness statement nevertheless sets out detailed and apparently admissible evidence on the key elements of the charges. He says he received no training in traffic management plans, or in relation to keeping vehicles away from areas in which he was working. He describes the safety equipment he was given, and
31 Health and Safety at Work Act 2015, s 49.
the alleged deficiencies in it. He explains that he had never defrosted evaporators at the site before, although he describes his previous attendances at the site. He is also able to provide certain business records, such as a WorkSafe Improvement Notice given to the second applicant concerning the inadequacy of a traffic management plan, and an extract of a Corrective Actions Register for the second applicant concerning forklift exclusion zones. It also includes a Goodman Fielder file concerning a forklift safety procedure.
[60] This provides material supporting a case that there were inadequate procedures in place for dealing with the type of work that Mr Rickard-Simms was engaged in. The evidence was not “insufficient to justify a trial” under s 26(3)(a).
What can be taken into account
[61] The second point is that I do not share the view taken in the authorities addressed above that the terms of s 26 prevent the Judge taking into account material other than the admissible evidence in the form of witness statements and exhibits. I readily accept the witness statements are of central significance, and the formality required for their preparation will mean they have heightened veracity. I also accept that s 26(3)(a) provides that the Judge should make his or her decision based on the evidence provided in the form of witness statements. But I disagree with the proposition that this prevents the Judge considering anything other than the admissible evidence in these witness statements.
[62] There is an apparent inconsistency in the case law on s 26 that I have referred to above. Some cases have emphasised that, as a matter of good practice, a proposed defendant should be given the opportunity to provide additional information and be heard on the s 26 determination.32 Yet the authorities I have just referred to say that it is impermissible for a Judge to consider anything other than the witness statements provided by the proposed prosecutor. In H Construction North Island Ltd v District Court at Auckland Whata J described the role of s 26 in a way that I respectfully agree
32 See [24]–[25] above.
with.33 He then attempted to reconcile this apparent inconsistency in the authorities.
He held:34
[53] … While a private prosecutor is not directly engaged in an exercise of discretionary public power, s/he or it is deploying the power and machinery of the State to enforce criminal law and penalise criminal wrongdoing. Close scrutiny of the sufficiency of the evidence is required to ensure that there is a proper basis for this deployment. In this regard, while a Judge cannot rely on extraneous information to bolster the prosecution case, s 26 does not expressly exclude consideration of extraneous information that might show the prosecution evidence to be insufficient. In addition, an exercise of power to accept or refuse the filing of prosecution is an exercise of judicial power. It is intolerable to think a Judge may exercise judicial power on a knowingly ill- informed basis. Rather, even though there is no duty to hold a hearing, where a Judge considers a defendant’s input is needed to make a properly informed decision, s/he should have a discretion to do so.
[63] With respect, it is difficult to find within s 26 a basis for such differing treatment of information on the basis of the identity of the person who has provided it. I do not believe the above authority provides an adequate answer for the inconsistency in approach. The prior case law seems to me to be logically inconsistent and it gives rise to some confusion on what is expected of District Court Judges.
[64] During his submissions Mr Wicks accepted that his argument turned on the particular wording of s 26. Decisions under s 147(3) can involve the assessment of a broader category of information beyond the formal statements.35 He accepted that if the Court could take into account the hearsay statements, his argument on this ground of challenge had difficulty. He accordingly described the argument as arising purely from the terms of s 26, and from what he described as a potential lacuna in the Act.
[65] Whilst Mr Wicks emphasised the difference between s 26 and s 147 in this context it seems to me that the reason why s 26 so restricts the material that must be taken into account is to limit the otherwise onerous obligation on a Judge to inform him or herself more completely about the case. It identifies and restricts what is required to be taken into account in the ex-parte screening exercise. I do not think that
33 H Construction North Island Ltd v District Court at Auckland, above n 11, at [51].
34 At [53] (footnotes omitted).
35 See R v Riley [1981] 1 NZLR 1 (CA) at pp 5-6; R v Tennent [1980] 2 NZLR 759 (CA) at pp 761- 762.
limitation exists solely because of the greater veracity involved in formal statements to the point of excluding all other material, even when plainly relevant.36
[66] I agree with Whata J that it would be intolerable to think a Judge might exercise judicial power on a knowingly ill-informed basis. In my view the answer to the apparent inconsistency of the authorities is found in the interpretation of the text of s 26 in light of its purpose, and the concept of mandatory and permissible considerations. It is clear that the Judge must take into account the content of the witness statements, and make the determination on whether that evidence is insufficient to justify a trial. But the section does not say that a Judge may not take into account anything else when doing so. Other material may permissibly be taken into account in deciding whether the evidence disclosed in the statements is insufficient to justify a trial. The present case may be an example. Mr Rickard-Simms may not easily be able to obtain witness statements from the applicants’ employees. But he is able to provide the transcripts of the interviews they gave WorkSafe in the formal investigation process. He can properly say that this evidence may have to be given under subpoena at trial and fills the apparent gap in the evidence. It seems to be this evidence is akin to a permissible consideration and in my view it would be wrong to say that this cannot be taken into account.
[67] Indeed I would suggest that would be the case with respect to the product of the WorkSafe investigation more broadly. One thing that the Judge may well have wished to take into account is the reasons why the regulator decided not to prosecute. The Judge might reasonably have wanted to see how the proposed private prosecutor addresses that particular matter. To suggest that the Judge cannot do so because this material is extraneous to the witness statements seems to me to be contrary to the very purpose of the s 26 screening exercise.
[68] I reiterate that I am not suggesting that the witness statements do not have a primary place, including because of the increased veracity involved in them. Neither am I suggesting that there are no limits on what can be taken into account. But in my
36 Interestingly s 347 of the Crimes Act 1961 also used to be limited to consideration of the depositions only, but was subsequently amended to allow consideration of broader material — see R v Riley, above n 35, at pp 5.
view other material can be taken into account when it is relevant to the question the Judge must ask.
The test to be applied
[69] In addressing the above matters, I have proceeded on the basis that the test to be applied under s 26 is similar to that used in the context of s 147 of the Act37 as described in R v Kim, namely “whether the evidence, if accepted by the jury, is sufficient in law to prove the essential elements of the charge to the required standard. If so the Judge should leave the case to the jury and not withdraw it on evidentiary grounds”.38 I do so because that is the test that has been referred to in other cases and it is the test the Judge applied here.39 But I note that this test is not expressed in s 26 itself. Section 26(3)(a) simply refers to the evidence being “insufficient to justify a trial”. That seems to me to be the relevant threshold. The check is being undertaken at the beginning of the prosecution process when further work by the prosecutor is possible. Moreover s 26 contemplates that the proposed prosecutor might only supply part of the evidence intended to be called at trial which the proposed prosecutor considers sufficient to justify a trial, with the decision of the Judge to be made accordingly (s 26(1)(b)). The reference in s 26(3)(b) to the alternative ground for not accepting the prosecution is that the proceeding is “otherwise” an abuse of process, which suggests that the insufficiency ground in s 26(3)(a) is also concerned with a form of abuse of the prosecution process. Further, as I have already emphasised, the procedure contemplates an assessment made ex-parte and without a contested argument.
[70] Given the generally more limited role that I see s 26 as having, particularly compared with the role performed by s 147, the assessment is unlikely to involve the same rigour that would arise after a contested argument. The screening process that s 26 involves requires a check that the proposed prosecutor has sufficient evidence to justify commencing criminal charges that will proceed to a trial. So it seems to be that
37 Formally s 347 of the Crimes Act 1961.
38 R v Kim [2010] NZCA 106 at [5].
39 See H Construction North Island Ltd v District Court at Auckland, above n 11 at [50]; Mitchell v Porirua District Court, above n 9, at [31]–[32].
s 26 proceeds on the basis of what is apparent on the face of the materials provided. If a defendant wishes to later contest the situation, that can be done under s 147.
[71] But for the reasons set out in paragraphs [61]–[68] above, I reject this ground of challenge.
Conclusion
[72]For these reasons I dismiss the applicants’ judicial review challenge.
[73] Standing back from the case overall, it seems to me that it was a reasonably straightforward case for decision under s 26. That may arise from its regulatory context. The regulator has conducted a full investigation and the investigation report has been made available. It has decided not to prosecute. There may be a range of reasons why a regulator such as WorkSafe decides not to prosecute. The person who has been injured in the workplace accident has decided that he wishes to bring a private prosecution. The materials that have been filed indicate there is a proper basis to bring such a prosecution — he alleges that there were inadequate procedures in place at the site for dealing with the interaction of the various employees working at that site, in particular forklift drivers moving materials in and out of the chiller room in which he was working on a ladder. A forklift driver’s interview indicates the driver struck Mr Rickard-Simms ladder causing him to fall. It is true that the transcript of the interview is strictly speaking hearsay, but is equally true that a prosecutor will be able to subpoena that witness to give evidence. To say that this prosecution should not be allowed to be brought under s 26 because the hearsay statement is technically inadmissible, or for the various other reasons advanced by the applicant, seems to me to involve a proposed misapplication of s 26.
[74] I do not share the views expressed in some of the prior cases about the requirements of s 26. I do not think it contemplates an inter-parties hearing, or a judgment of the kind that would be expected for an application under s 147. It seems to me that any more extensive consideration of competing argument about charges would be better addressed at a contested s 147 hearing. Section 26 involves the Judge checking the prosecution to make sure that it is appropriate, including by checking that the private prosecutor has a sufficient evidential basis to justify the charges being filed
so that they can proceed to trial. But there is only so much that can be expected of District Court Judges, especially when s 26 envisages an ex-parte examination, and there are other statutory checks to protect the position of the defendant. Neither do I think it impermissible for a Judge to consider material other than the formal witness statements when conducting this exercise. There may be other material a proposed prosecutor could provide that is permissibly taken into account.
[75] Whilst I recognise that there are inconsistent authorities on the approach that should be followed by the District Court Judge, there are a number of passages in the authorities that support the view I take of the role of s 26.40 In my view, the procedure to be followed by a Judge receiving a referral from a Registrar is to:
(a)Consider first whether it is appropriate for assessment under s 26(3). Given that earlier cases have set aside decisions because that step has not been taken, the safer course may be to call for the statements unless the case is obviously uncontroversial.41
(b)Following that decision the Judge should give a direction that the formal statements and exhibits contemplated by s 26(1)(b) are to be filed together with any memorandum the proposed prosecutor wishes to provide identifying why the circumstances referred to in s 26(3) do not arise.
(c)On receipt of that material the Judge should make a determination on the papers. The tests to be applied should be those expressed in s 26(3)(a) and (b) themselves.
(d)The Judge should keep a record of the decision subsequently made. If a decision is made not to accept the charges for filing brief reasons may
40 See [19], [26] and [30] above.
41 See footnote 9 above.
be appropriate given the right to challenge the decision in judicial review proceedings.42
[76] The judicial review proceedings here are dismissed for the reasons I have given.
[77] The parties agreed that costs on a 2B basis should follow the event. The second respondent is accordingly awarded costs on a 2B basis together with reasonable disbursements to be fixed by the Registrar.
Cooke J
Solicitors:
Bell Gully, Auckland for applicants
Crown Law, Wellington for first respondentParker & Associates, Wellington for second respondent
42 Recognising that if they are accepted for filing, the defendants will subsequently have the right to apply to have the charges discharged under s 147, or otherwise, whereas the only remedy for a dissatisfied private prosecutor is judicial review.
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