Green v District Court of New Zealand
[2021] NZHC 2756
•15 October 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2020-409-000249
[2021] NZHC 2756
BETWEEN GREEN
Applicant
AND
THE DISTRICT COURT OF NEW ZEALAND
First Respondent
AND
THE ATTORNEY-GENERAL
Second Respondent
Hearing: 10 August 2021 Appearances:
J D Lucas for the Applicant
M N Zarifeh and S J Mallett for the Second Respondent
Judgment:
15 October 2021
JUDGMENT OF NATION J
Introduction
[1] The applicant, Mr Green,1 faces four charges that he raped the complainant, his biological sister, on four occasions between 2009 and 2011 when Mr Green was aged between 14 and 16 years old and the complainant was aged between 12 and 14 years old. The proceeding is currently awaiting trial in the District Court.
1 To protect the identity of the complainant, the name of the applicant has been anonymised.
GREEN v THE DISTRICT COURT OF NEW ZEALAND [2021] NZHC 2756 [15 October 2021]
[2] Mr Green made an application in the District Court to dismiss the charges against him under s 322 of the Oranga Tamariki Act 1989 (the OT Act).2 The application was advanced on the grounds that the time that had elapsed between the commission of the alleged offences and the hearing of the case had been unnecessarily or unduly protracted.
[3]In a decision of 21 February 2020, Judge Callaghan refused the application.3
[4] On 29 May 2020, Mr Green filed a statement of claim in this Court seeking judicial review of Judge Callaghan’s decision. This was brought on grounds alleging that the Judge failed to take into account relevant considerations, took into account irrelevant considerations, and made an error of law in that he reached an unreasonable finding of fact in the circumstances. Mr Green sought an order quashing Judge Callaghan’s decision to decline a stay of the proceedings against Mr Green, a further order granting a stay or, in the alternative, an order remitting the matter back to the District Court.
[5] On 10 July 2020, the second respondent, the Attorney-General, filed an application for orders striking out Mr Green’s statement of claim. That application was heard on 3 March 2021. In a judgment of 11 March 2021, Gendall J declined the application.4 In summary, this was because the arguments the Attorney-General relied on in support of the strikeout application were not so certain of acceptance that the high threshold for strikeout was met.
District Court judgment
[6]The Judge set out a chronology of key dates. These included:
(a) 28 December 2016 - the complainant made a complaint to the Police;
2 In his statement of claim in these proceedings, Mr Green sought a stay of the criminal proceedings in the District Court and referred to the application there as being for a stay of the criminal proceedings. In his decision in the District Court, the Judge said he was considering an application under s 322 to dismiss the proceedings. In submission for Mr Green, his counsel referred to the application as for a dismissal of the proceedings. Section 322 of the OT Act permits a Judge to “dismiss” any charge.
3 R v Green […].
4 Green v District Court of New Zealand […] at [29].
(b) 18 January 2017 - Mr Green was interviewed by Police;
(c) 30 January 2017 - the case was referred to Project Restore with the consent of the parties and Mr Green was later referred to the STOP programme;
(d) 14 February 2019 - Project Restore advised the Police the matter could not proceed by way of restorative justice due to Mr Green’s lack of attendance at the STOP programme;
(e) 16 April 2019 - the Police contacted the complainant who advised she wished to proceed with criminal charges; and
(f) 14 July 2019 - Mr Green was arrested and charged.
[7] The Judge summarised the defence and Crown positions. He referred to evidence presented as to the Project Restore process that had been followed, evidence from a detective explaining why the Police initially referred the family to Project Restore and evidence from Mr Green’s father about his understanding of the requirements of the Project Restore option and his perception as to why Mr Green’s engagement with the STOP programme ended.
[8] The Judge held that the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017 which made changes to ss 4 and 5 of the OT Act came into effect on 1 July 2019. He noted that the Court of Appeal in Solomon v R had considered the updated s 5(1)(v) in relation to historic offending.5 The Judge however noted, prior to the Children, Young Persons, and Their Families (Youth Court Jurisdiction and Orders) Amendment Act 2010, a child offender could not be prosecuted for any offence other than murder or manslaughter. Mr Green did not turn 14 until 18 September 2009. The Judge directed that the charging documents would have to be amended to show the commencement date for the offending was after 18 September 2009. (His direction in that regard is not at issue.)
5 Solomon v R [2019] NZCA 616.
[9] The Judge noted that s 322 of the OT Act created a discretion to dismiss charges. He said that to exercise that discretion the Court must first be satisfied that the time elapsed between the commission of the alleged offence and the hearing of the charge was unnecessarily or unduly protracted. He identified the relevant principles as those set out by the Supreme Court in H (SC 97/2018) v R and summarised the applicable principles. 6
[10] The Judge noted the five years delay between the end of the alleged offending in December 2011 and the complainant disclosing the alleged offending to her parents and reporting it to Police in December 2016.
[11] The Judge noted the Court of Appeal and Supreme Court had recognised there are often good reasons for delay in reporting historic sexual abuse.7 The Judge said there had been no unnecessary delay as at January 2017.
[12] The Judge noted there had been a delay of two years between the case being referred to Project Restore restorative justice programme in January 2017 and the matter being referred back to Police in February 2019. It was through Mr Green’s disengagement with the STOP sessions in November 2018, prior to him completing the programme, that Project Restore decided they could not proceed with the case. The Judge said no assurances had been given to Mr Green, either directly or through his parents that, if he did not complete Project Restore, he would not be charged with the offences. He said it was implicit in his referral to Project Restore that the programme had to be completed so the complainant could be satisfied that issues had been addressed. He considered the delay that occurred after February 2019 — with the Police contacting the complainant in April 2019, a review of the file in May 2019 and Mr Green being arrested and charged on 14 July 2019 — did not constitute unnecessary delay.
[13] As to whether there had been an unduly protracted delay, the Judge considered this from the perspective of Mr Green and in light of the youth justice principles. “Undue”, unlike unnecessary, did not import any requirement for fault.
6 H (SC 97/2018) v R [2019] NZSC 69, [2019] 1 NZLR 675.
7 Referring to Brown v R [2015] NZCA 325 at [33]; and H v R, above n 6, at [43].
[14] As to the length of the delay, the Judge noted the time period between the start of the alleged offending and the laying of charges was 10 years, a significant proportion of the life of a 24 year old. The Judge attributed the initial five years of delay to the complainant and said it could be explained by the familial context and the nature of the alleged offending. A further two years had resulted from the restorative justice process being pursued before charges were laid, with that process ending because Mr Green failed to engage with the STOP programme.
[15] As to prejudice, the Judge acknowledged prejudice to an accused might be presumptive or specific. He noted that presumptive prejudice could arise through impairment of the memory of a defendant and witnesses, and interference with the life of the defendant and the complainant. He referred to the Crown’s submission that there was no specific prejudice because all evidence and witnesses remained available and the complainant had undertaken an evidential video interview promptly after making her complaint in December 2016 (prior to the delays associated with the restorative justice process). He noted the offending was alleged to have occurred when Mr Green and the complainant were alone so evidence from other witnesses as to whether they could remember specific moments when the two were alone was unlikely to be of significant probative value. The complainant was aged between 12 and 14 at the time of the alleged offending. The Judge accepted that the effect of delay on her memory would be less than it would have been if she had been a very young child at the time of the alleged offending.
[16] The Judge however concluded that “[w]hilst the time lapse [was] not unnecessarily protracted, … from the perspective of a defendant aged 24, a delay of 10 years would be unduly protracted”.
[17] On that basis, the Judge had to decide whether he would exercise his discretion to dismiss the charges. The Judge referred to a range of authorities that had considered matters relevant to the exercise of a discretion.8
8 H v R, above n 6; Solomon v R, above n 5; Police v Ponniah [2014] DCR 75 (DC); R v Brown [2015] NZHC 1155; Police v W [2013] DCR 209 (DC); and Attorney-General v Youth Court at Manukau [2007] DCR 243 (HC).
[18]The Judge concluded:
[91] Had the defendant been charged and completed Project Restore and STOP programmes, I would have dismissed the charges. This is because a rehabilitative approach would have been the focus of any sentence he would have received in the Youth Court, if the charges had been laid there. However, given the nature and seriousness of the charges and the need to ensure that if the defendant’s guilt is established he receives treatment, I decline to exercise my discretion to dismiss the charges.
Issues
[19]On the pleadings, the following issues must be considered:
(a) Is it appropriate for the Court to review a decision under s 322 of the OT Act having regard to the rights of appeal under the Criminal Procedure Act 2011?
(b) Did the District Court Judge fail to take into account certain specified relevant considerations in declining to dismiss the proceedings?
(c) Did the Judge take into account a specified alleged irrelevant consideration?
(d) Did the Judge make an unreasonable finding of fact in deciding that Mr Green and his family were aware that Mr Green was required to complete restorative justice and the STOP courses?
[20] Although it was not foreshadowed in the pleadings, through counsel’s submissions, it was also contended that the Judge’s decision was unreasonable because of the way Mr Green had been referred to Project Restore, the shortcomings in the way that happened and the reasons it failed.
The appropriateness of Judicial Review?
[21] For the Attorney-General, Mr Mallett accepted that pre-trial decisions of the District Court in the exercise of its criminal jurisdiction are, in principle, amenable to review but submitted that a decision such as this should not be amenable to judicial review.
[22] In support of this, he referenced Clark J’s summary of the position in Angus v District Court:9
[23] The threshold for judicial review of District Court judges exercising their criminal jurisdiction is set high for reasons of policy and principle emphasised in a long line of cases:
(a) Judicial review of a District Court decision under s 147 of the Criminal Procedure Act is only appropriate in rare cases where, by reason of the nature of the error, the intervention of the High Court is imperative.
(b) Even if an identifiable question of law, beyond sufficiency of evidence, is said to arise the power to review must be sparingly exercised and truly exceptional circumstances will be required.
(c) A remedy by way of judicial review is not to be made available where an alternative remedy exists. The Crimes Act 1961 contains a comprehensive statutory procedure erected for the just and expeditious disposal of indictable trials as does the Criminal Procedure Act 2011.
(d) Where Parliament has provided by statute appeal procedures it will only be in rare and exceptional circumstances that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.
(e) The policy factors weighing against disruption, delay and fragmentation of the criminal process through recourse to the High Court will not preclude judicial review of an error that has the potential to lead to serious injustice that cannot be corrected on appeal.
…
[29] Arguably, the enactment of the Criminal Procedure Act with its "carefully crafted appeal rights" means judicial review of pre-trial decisions of the District Court is not only invariably "inappropriate" but borders on abuse of process justifying applications to strike out the challenge. …
[23] In support of that last statement, Clark J referred to DGN v The Auckland, Manukau, Papakura, and Waitekere District Courts.10 In this decision, Simon France J noted that strikeout applications should be considered to avoid the delay associated with judicial review proceedings. His reasoning is as follows:
9 Angus v District Court [2017] NZHC 2879, [2018] NZAR 1804 (footnotes omitted).
10 DGN v The Auckland, Manukau, Papakura, and Waitekere District Courts [2016] NZHC 3338, [2018] NZAR 137.
[29] I agree that the enactment of the Act is significant in relation to the present type of application. The existing reluctance of the courts to allow judicial review to interrupt the conduct of criminal prosecutions should now be reinforced. Compelling reasons to step outside the legislative scheme should be required, and a strike out to assess whether the test could be met would be appropriate. This firm stance is supported by the reality that the scheme reflected in the Criminal Procedure Act affords all the opportunity a defendant needs to make appropriate challenges.
[30] To illustrate the point, relevant to Mr N's present challenges, there is provision in the Act for a pre-trial challenge to admissibility of evidence (s 101), and s 147 authorises a court to dismiss a charge at any time. That section is generally used as the vehicle through which to challenge sufficiency of evidence (including credibility arguments) but is not limited to that. There is no reason why an abuse of process argument cannot be advanced under it, and that is so whether the alleged abuse is sourced in delay, or misconduct, or because there is no useful purpose to the proceeding.
[31] The Act also prescribes appeal rights. This Part of the Act reflects a careful consideration of what appeal rights should exist pre-trial and post verdict. Second appeal rights are carefully prescribed. Judicial review should not be seen as a way to circumvent that scheme. Sections 215 and 217 identify the provisions concerning which a pre-trial appeal may be brought. Section 147 is not included but the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal. Further, s 296 provides for question of law appeals and may be available pre-trial.
[32] The purpose of this review is to emphasise not only the comprehensive nature of the legislation, but also that it represents legislative assessment of an appropriate scheme which affords avenues of challenge and appeal are what are considered to be the fair and appropriate points in the process. The use of judicial review as an alternative route carries significant potential to undermine this scheme, and is one of the reasons why, in my view, a compelling reason should now be required before judicial review is allowed.
[33] Further, in relation to the use of the strike out procedure, in my view there is little disincentive, and disruption is not prevented, if a full hearing of the application occurs, only to be dismissed with observations that relief will be rare. The present case provides an illustration. I was advised matters are on hold pending determination of this application. One of the aims of the Criminal Procedure Act, and its accompanying Criminal Procedure Rules 2012, is to provide firm timeframes to ensure that progress of these matters is achieved. The aim was generally to speed up the criminal processes. Allowing recourse to other processes outside the statutory scheme simply reintroduces unnecessary delay in circumstances where an alternative effective route for the same challenge is available.
[24] In a subsequent judgment of Rowell v District Court, Simon France J dismissed an application for judicial review of a District Court decision declining an application under s 147 of the Criminal Procedure Act.11 However, he repeated the views
11 Rowell v District Court [2017] NZHC 2706.
expressed in DGN as to the usual inappropriateness of judicial review in relation to pre-trial decisions, except in compelling circumstances.
[25] In Bennett v District Court, Doogue J refused to strike out proceedings for judicial review of a decision in the District Court declining to stay proceedings against a defendant on the grounds they were an abuse of process.12 In doing so, she endorsed the reasons of Simon France J and Clark J for stipulating that judicial review of decisions in the District Court in the criminal jurisdiction should be amenable to judicial review only sparingly and against a high threshold. She concluded that the gate to applications for judicial review in the pre-trial criminal context is narrow for very good reasons, and only exceptional cases pass through it.
[26] The rationale for limiting the availability of judicial review to truly exceptional circumstances as to decisions made by another Court in its criminal jurisdiction was endorsed by Fitzgerald J in Vaisevuraki v New Zealand Police.13
[27] For Mr Green, Mr Lucas accepted that decisions not to dismiss charges under s 147 of the Criminal Procedure Act would not normally be amenable to judicial review. However, he submitted that decisions as to an application under s 322 of the OT Act are different because they have to be considered with due regard to the principles of the OT Act.
[28] Mr Lucas submitted that s 5 of the OT Act requires applications to be considered with due regard to the United Nations Convention on the Rights of the Child, particularly art 40(2)(b)(v).14 He submitted appeal rights that might follow from a conviction will not provide a potential remedy for any error in a decision on a s 322 application because the purpose of s 322 is to allow a court, in appropriate circumstances, to spare a defendant the ordeal of having to face criminal proceedings through to trial, the risk of conviction and the risk of a sentence being imposed. While
12 Bennett v District Court [2020] NZHC 1730.
13 Vaisevuraki v New Zealand Police [2020] NZHC 3348, citing Pohl v District Court at Auckland [2019] NZHC 2599; Banks v District Court at Auckland [2013] NZHC 3221, [2014] NZAR 591; DGN v The Auckland, Manukau, Papakura, and Waitekere District Courts, above n 10; and Russell v District Court (Manukau) [2004] DCR 289 (DC).
14 United Nations Convention on the Rights of the Child 1577 UNTS 3 (opened for signature 20 November 1989, entered into force 2 September 1990).
appeal rights might result in a conviction and its consequences being overturned, a successful appeal will not have spared Mr Green the ordeal he faces with continuing proceedings.
[29] Mr Lucas said, in the High Court, Winkelmann J had held that judicial review is appropriate to seek to challenge the correctness of a s 322 decision.15 He submitted that remains good law despite the high threshold discussed at [21]-[27] above.
Discussion
[30] Under art 40(2)(b)(v) of the United Nations Convention on the Rights of the Child, New Zealand is committed to ensuring that every child accused of having infringed the penal law, has a guarantee that:
(v) If considered to have infringed the penal law, to have this decision and any measures imposed in consequence thereof reviewed by a higher competent, independent and impartial authority or judicial body according to law.
[31] That clause however relates to a determination that a child has infringed the penal law, not a decision made at an interlocutory stage as to whether there should be a trial to decide if there has been such an infringement.
[32] In Attorney-General v Youth Court at Manukau, the Attorney-General had sought, by judicial review, to challenge a decision by a Youth Court Judge to dismiss information laid against three young persons.16 This decision had been made on the basis there was an undue or unnecessary delay and the young persons had been prejudiced by the delay, a decision under s 322 of the then Children, Young Persons, and Their Families Act 1989.
[33] Winkelmann J recorded that counsel for one of those charged had submitted that, by reason of the existence of appeal rights in ss 354(2) and 355 of the Children, Young Persons, and Their Families Act, the informant could only appeal against the
15 Attorney-General v Youth Court at Manukau, above n 8.
16 At [1]-[3].
decision by way of case stated for the opinion of the High Court on a question of law and, secondly, that there was no justiciable issue.
[34] By the time of the hearing, all of the respondents accepted it was open to the applicant to judicially review the Youth Court Judge’s decision but submitted the availability of appeal rights remained relevant to the issue of relief.
[35] Winkelmann J said the concession was properly made. She referred to s 4 of the Judicature Amendment Act 1972 which permitted the High Court, on application for review, to grant relief as to the exercise of any statutory power “notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application”.17 She referred to the statement from the Court of Appeal in Auckland District Court v Attorney-General:18
The District Court’s statutory constitution, its separate jurisdiction, its independent powers and its relationship with the High Court, all dictated that in the exercise of its criminal jurisdiction it was a Court of limited jurisdiction, and that it was in the public interest that it be subject to judicial review.
[36] Winkelmann J went on to say “[h]owever, where the statutory decision-making power in respect of which review is sought involves the exercise of a discretion, then the jurisdiction to review will be exercised sparingly”.19
[37] In CT v Attorney-General, Chisholm J in the High Court on judicial review quashed a decision of a District Court Judge refusing a stay of charges pursuant to s
322 of the Children, Young Persons, and Their Families Act.20 There was no discussion in the judgment as to whether judicial review was the appropriate way to challenge the decision or how the grounds of challenge might be limited because the challenge was made by way of judicial review.
[38] I accept the rationale for pre-trial decisions in the criminal jurisdiction being amenable to judicial review only in truly exceptional circumstances is not going to be apposite for decisions on an application under s 322 of the OT Act.
17 Judicature Amendment Act 1972, s 4.
18 Auckland District Court v Attorney-General [1993] 2 NZLR 129 at [135].
19 Attorney-General v Youth Court at Manukau, above n 8, at [28].
20 CT v Attorney-General [2011] NZAR 598.
[39]Section 322 of the OT Act states:
322 Time for instituting proceedings
A Youth Court Judge may dismiss any charge charging a young person with the commission of an offence if the Judge is satisfied that the time that has elapsed between the date of the commission of the alleged offence and the hearing has been unnecessarily or unduly protracted.
[40]Relevantly, the purposes of the OT Act include:
4 Purposes
(1) The purposes of this Act are to promote the well-being of children, young persons, and their families, whānau, hapū, iwi, and family groups by—
…
(b)supporting and protecting children and young persons to—
(i)prevent them from suffering harm (including harm to their development and well-being), abuse, neglect, ill treatment, or deprivation or by responding to those things; or
(ii)prevent offending or reoffending or respond to offending or reoffending:
(c)assisting families, whānau, hapū, iwi, and family groups to—
(i)prevent their children and young persons from suffering harm, abuse, neglect, ill treatment, or deprivation or by responding to those things; or
(ii)prevent their children or young persons from offending or reoffending or respond to offending or reoffending:
…
(i)responding to alleged offending and offending by children and young persons in a way that—
(i)promotes their rights and best interests and acknowledges their needs; and
(ii)prevents or reduces offending or future offending; and
(iii)recognises the rights and interests of victims; and
(iv)holds the children and young persons accountable and encourages them to accept responsibility for their behaviour:
…
[41] Also relevant is s 5(1)(b)(v). It says one of the principles courts must be guided by in exercising powers under the Act is that “decisions should be made and implemented promptly and in a time frame appropriate to the age and development of the child or young person”.
[42] Section 4A(2) was inserted on 1 July 2019. It says that, in relation to the administration or application of pt 5 of the OT Act, which includes s 322:
the 4 primary considerations, having regard to the principles set out in s 5 and 208 are -
(a) the well-being and best interests of the child or young person; and
(b) the public interest (which includes public safety); and
(c) the interests of any victim; and
(d) the accountability of the child or young person for their behaviour.
[43] In H v R, the Supreme Court held that s 322 applies to a case where, as here, a defendant is charged as an adult for offences allegedly committed when he was a young person.21 Where, because of the age of the defendant at the time charging documents are filed in the District Court, in terms of s 2(3) of the OT Act, s 322 applies “with all necessary modifications to the proceedings”.22 The modifications include substituting a District Court Judge for a Youth Court Judge.
[44] Accordingly, in applying s 322, youth justice principles are relevant even though a defendant is now an adult.
[45] In H v R and with reference to the Court of Appeal’s judgment in Churchwood v R,23 the Supreme Court summarised the youth justice principles that would be relevant in the making of a decision on a s 322 application:
(a) an important reason for the now s 5(1)(v) principle in the OT Act is to enable rehabilitation to occur in line with the general object in the then s 4(f)(ii), ensuring that where a child or young person commits an offence
21 H v R, above n 6, at [28].
22 At [29].
23 Churchwood v R [2011] NZCA 531, [2011] CRNZ 446.
they are dealt with in a way that acknowledges their needs and that gives them the opportunity to develop in a responsible, beneficial and socially acceptable way;
(b) there are particular factors relating to the stage of development that may have contributed to the offending of a child or young person and that may be seen as reducing or explaining culpability and also as meaning rehabilitation is more likely;
(c) age related neurological differences between young people and adults mean that young people may be more vulnerable or susceptible to negative influences and may be more impulsive than adults;
(d) the effect of imprisonment and long sentences may be crushing on young people;
(e) young people have greater capacity for rehabilitation;
(f) offending by a young person is frequently a phase which passes fairly rapidly. Thus, a well-balanced reaction is required in order to avoid alienating the young person from society and to avoid criminal convictions, which may have a disproportionate impact on the ability of a young person to gain meaningful employment and play a worthwhile role in society;
(g) that will particularly be the case where the offence was committed when the person was very young or if the alleged offending was not serious;
(h) even where the alleged offending was serious, youth justice principles may still mean that the discretion to dismiss a charge under s 322 should be exercised; and
(i) this would especially be the case if there is good reason to consider the person has been rehabilitated (for example where there has been a long period without any serious offending).
[46] Of significance in the Supreme Court’s statement of principles was their statement that the factors referred to in Churchwood may mean that “it is inappropriate to try a person for an offence allegedly committed as a child or young person after unnecessary or undue delay”.24
[47] The Supreme Court’s observation was not that such a delay could result in a trial being unfair but that it would be inappropriate for the person to face trial.
[48] That distinction was also of importance to the Supreme Court in H v R when considering whether High Court Judges had been correct in not granting a stay of criminal proceedings on an application under s 147 of the Criminal Procedure Act. The Supreme Court noted that, in separate judgments, Judges of the High Court had considered the question was whether the risk of prejudice from the delay was such as to render Mr H’s trial unfair and this required an evaluative judgment based on the relevant circumstances.25 The Supreme Court said, by contrast, s 322 of the OT Act required the application of youth justice principles. In some cases, some of the factors relevant to a decision whether to dismiss a charge under s 147 or to stay the proceedings under s 147 could be relevant. Section 322 however had to be considered separately.
[49] The rights of appeal for a prosecutor or defendant against pre-trial decisions in jury trial cases set out in s 217 of the Criminal Procedure Act all relate to decisions that affect the way in which a trial will proceed. The same is true of the right of appeal which a defendant only has against pre-trial decisions in a jury trial case, as set out in s 218. It is also true of the limited rights of appeal as to certain pre-trial evidential decisions in judge alone cases as referred to in s 215.
[50] The basis on which a court must determine an appeal against conviction is set out under pt 6, sub-pt 3 of the Criminal Procedure Act. This subpart specifies that the first appeal court must allow an appeal if satisfied that a miscarriage of justice has occurred or that — in the case of a jury trial — the jury’s verdict was unreasonable. Section 232(4) sets out the definition of “miscarriage of justice” as follows:
24 At [34].
25 At [39], citing H v R [2016] NZHC 2009; and R v H [2017] NZHC 1121.
232 First appeal court to determine appeal
…
(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[51] In Russell v District Court (Manukau), O’Regan J accepted a submission for the Crown that:26
… if there is a sufficient nexus between these interlocutory matters and the final outcome of the proceedings, then a right of appeal will exist which will encompass these pre-trial matters, and that is the appropriate avenue for review by this Court in the circumstances of this case.
[52] The youth justice principles which must be considered on an application under s 322 are not necessarily going to be matters that affect the fairness and outcome of a trial. Section 322 allows a Judge to consider youth justice principles and to rely on them in the particular circumstances of the case to give effect to the purposes of the OT Act and to avoid a defendant from having to face the ordeal of criminal proceedings.27
[53] The distinction is important. In a s 147 context, with regard to delay, the authors of Adams on Criminal Law state:28
As confirmed by the Supreme Court’s majority judgment in CT (SC88/13) v R the central question is whether a fair trial is possible in light of the prejudice caused to the defendant by the delay.29
[54] In Adams on Criminal Law, the authors refer to the principles to be considered where issues of delay and prejudice have to be considered on a s 147 application, as articulated by the Supreme Court in CT v R.30 The authors refer to “[t]he cognate provision in s 322” of the OT Act and note that:31
26 Russell v District Court (Manukau), above n 13, at [45].
27 H v R, above n 6, at [31].
28 Simon France (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA 147.10].
29 CT (SC88/13) v R [2014] NZSC 155, [2015] 1 NZLR 465 (footnote added).
30 CT v R, above n 29.
31 France, above n 28, at [CPA 147.10].
Whether to dismiss a charge under s 322 should be considered separately from a consideration of the principles outlined in CT v R, above, with particular reference to youth justice principles.
[55] Prosecuting a child or young person for a criminal offence will have significant consequences for the child or young person, even if the prosecution does not result in a conviction. Section 322 recognises this and confers on Judges a particular jurisdiction not provided for with adult defendants to bring proceedings to an end before trial in particular circumstances.
[56] Because there is no right of appeal which could remedy a decision made in error by a Judge to dismiss an application to bring proceedings to an end under s 322, I consider there should not be the same barrier to judicial review as normally applies with pre-trial applications in the criminal jurisdiction for all the reasons that have been articulated by Simon France J and others.
[57] I am conscious that, if s 322 decisions are more amenable to judicial review than is the case with other interlocutory pre-trial decisions in the criminal jurisdiction, there is potential for such proceedings to delay the determination of criminal proceedings in the way the Criminal Procedure Act seeks to avoid. This would be particularly undesirable for a young person facing criminal proceedings as a defendant or involved in them as a complainant. It will thus be important that, if the correctness of a s 322 decision is to be challenged through judicial review, this is done without delay. A delay in challenging such a decision through judicial review might well mean that, in the exercise of a court’s discretion, an applicant for review will be declined the relief they might otherwise have obtained.
[58] The threshold for a successful challenge to a s 322 decision at first instance will also be higher by reason of that challenge being made by judicial review.
[59] In Aorangi School Board of Trustees v Ministry of Education, French J observed:32
… contrary to popular belief, judicial review is not an appeal. It is not about the court considering information afresh and coming to its own views.
32 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
Judicial review is primarily limited to an examination of the process, and if successful usually results in the decision-maker being required to start afresh, as opposed to quashing the decision for all time.
[60] A Judge’s decision on an application under s 322 will be a decision made through a deliberative process. The authors of McGechan on Procedure summarised the grounds of review as to such a process as follows:33
The grounds of review in the context of a decision-maker’s deliberative process can generally be described as “processing flaws” in the sense that, without going to the merits of a decision, the court determines that something has gone wrong in the processing of information that has resulted in the decision; whether it be a finding that the decision-maker has misapplied the law, failed to have regard to something that should have been taken into account, misunderstood or overlooked relevant facts, failed to apply a policy or convention or failed to act in accordance with something that was said or promised to a claimant such that, short of pure irrationality, the decision could generally be described as being unfair and deserving a remedy.
[61] On review, a person disappointed with a decision made by a Judge on a s 322 application should not come to the High Court to challenge that decision through judicial review simply on the basis that this Court should consider all the evidence as if it was a rehearing and, on that basis, come to a different decision on the merits.
[62] It has been pointed out that courts are circumspect about fact challenges and judicial review.34
[63] In Wislang v Medical Council of New Zealand, Blanchard J, delivering the judgment for the Court of Appeal, said complaints about “factual matters” are “par excellence the stuff of general appeals, not judicial review”.35
[64] On review, the High Court will be reluctant to interfere with reasonably held factual views. In Bryson v Three Foot Six Ltd, the Supreme Court found that:36
Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision-maker misdirects itself in law.
33 Andrew Beck and others McGechan on Procedure (online ed, Brookers) at [JR Intro.01(6)].
34 See Matthew Smith New Zealand Judicial Review Handbook, (2nd ed, Thomson Reuters, Wellington, 2016) at [53.1].
35 Wislang v Medical Council of New Zealand [2002] NZAR 573 (CA) at [32].
36 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [21].
[65] It has also been said that courts will be slow to interfere with genuine value judgment calls.37
[66] In Wilfred v Chief Executive of the Department of Labour, Gendall J said “matters of judgment, to be weighed along with other factors by the [a]uthority” did not qualify as mistakes of fact.38
[67] I accordingly respectfully agree with the view expressed by Winkelmann J in Attorney-General v Youth Court at Manukau that decisions on a s 322 application, through judicial review, should be pursued and made only “sparingly”.39
[68] I consider now the applicant’s challenges to the reasonableness of the Judge’s decision and the particular errors referred to in the statement of claim.
Criticism of the referral to Project Restore
[69] Through counsel’s submissions, although not referred to in the statement of claim, Mr Green was critical of the Police for encouraging the family to have Mr Green participate in the Project Restore restorative justice process. Mr Lucas said that had been arranged without a clear agreement as to what was expected of Mr Green through that process and what the consequences would be if he did not follow through with what was expected of him. He also submitted the process was not appropriate when Mr Green had not acknowledged he was guilty of criminal offending, there was no summary of facts on which to proceed and, generally, it was set up to proceed so informally that it was doomed to fail.
[70] Mr Green is approximately 26 and a half months older than his complainant sister. There is another sister who is younger than the complainant.
[71] In her evidential interview of 30 December 2016, the complainant describes four incidents when she was raped by Mr Green. She said it started when she was 12, with the first incident occurring in the school holidays.
37 Smith v Attorney-General [2017] NZHC 136, [2017] NZAR 331 at [55].
38 Wilfred v Chief Executive of the Department of Labour [2007] NZAR 237 (HC) at [109].
39 Attorney-General v Youth Court at Manukau, above n 8, at [28].
[72]The complainant said the incidents stopped when she was aged 14.
[73] In her evidential interview, the complainant describes Mr Green as being “a big guy”, of being afraid of him and of him having “mental episodes”. She talked of her having seen what he had done to their father and how he could hurt their mother. She said she had seen him stab their father. She referred to him being good with words, that being how he had “got himself out of psychiatric hospitals and stuff”. At the time of the interview, she said Mr Green was six foot five and huge. She said, at the time of the alleged offending, he had been “always big and overpowering”.
[74] On 18 January 2017, Mr Green was interviewed by the Police. A summary of facts referred to just one incident of alleged sexual violation by rape in 2011 or 2012. According to the summary, Mr Green “stated he had a sexualised relationship with the victim, who initiated it. The defendant claimed they had sex 10 to 20 times and that it was always consensual, with both enjoying it.”
[75] It was apparent from cross-examination of a detective at the hearing that Mr Green had talked in his interview about some further detail consistent with being involved in consensual sex. The detective recalled that Mr Green had said the young sister had walked in on him and the complainant having sex on two occasions and the younger sister had wanted to be involved.
[76] Detective Perham said in evidence at the hearing in the District Court that, at that time, the two daughters felt torn. They did not want to put their parents through anything more. It was the detective’s view that, if Mr Green admitted his offending and offered them an apology, that would probably be enough for them to move on. After discussing the matter with another officer, Detective Sergeant Parker, she found out more about Project Restore and discussed that with the two daughters. Their preference was to go with the option of Project Restore rather than criminal proceedings.
[77] Detective Perham said it had been Police expectation that Mr Green would attend several counselling sessions and there would be an option for Mr Green and his sisters to speak with one another in a controlled and safe environment.
[78] At that time, the Police also took statements from the mother and father. Detective Perham said the option of Project Restore was discussed with the two daughters and their father. She said Mr Green was arrested and spoken to on 18 January 2017 and there was a further meeting with the parents. She said she discussed the possibility of Project Restore with Mr Green’s parents after Mr Green had been interviewed. Her last interaction with Mr Green was after he had been interviewed and released. She said it was left to his mother and father and Project Restore to talk to Mr Green about the programme. Although she had not made a note of it, she was adamant that, in discussing the programme with the parents, she would have made it clear what would happen if Mr Green did not follow through with that programme. In re-examination, Detective Perham said she had made enquiries with Project Restore as to how things were progressing. She said she never made any comment or representation to Mr Green’s parents that the Police were never going to lay charges in the case.
[79] Evidence as to Project Restore was given by Jennifer Annan whose position was described as a “senior survivor specialist working at Project Restore”. Ms Annan aid Project Restore had been set up in 2005 to provide an alternative to going through the Police and the court process or as a pre-sentence restorative justice process, to provide an opportunity for victims to talk directly to the person who had allegedly offended against them, to give that person an opportunity to explain what happened and to provide an apology. It was also to provide an opportunity for an alleged offender to take responsibility for what they had done and to show they had done what was necessary to ensure there would not be any recurrence of the abuse. Ms Annan said Project Restore offered a voluntary process so people had to be willing to engage in it. She said involvement with the programme would cease if people chose to pull out of the process at any stage. Where the case has come to them from a Police referral, if the involvement ceases because of a lack of participation, the Police are informed of the closing of their file. She indicated that, on their becoming involved, they obtained as much information as they could about the background and contacted the victims and “the alleged harm-doer”. She explained that, where there was a discrepancy between what a witness had said and what the perpetrator or other person was acknowledging, they could refer a person to a specialist agency. In Christchurch it was the STOP programme.
[80] The information before the Judge as to the precise extent, timing and regularity of Mr Green’s involvement with the STOP programme was sparse. Project Restore had information that, at some point, Mr Green had been meeting approximately weekly with STOP since an initial assessment. There was information that, in August 2018, a counsellor at STOP considered he had a positive relationship with Mr Green who was then regularly attending appointments. On 12 December 2018, Project Restore was informed that Mr Green had not been attending scheduled sessions over the last month.
[81] In his evidence, Mr Green’s father said he was involved with Mr Green as he underwent Project Restore and the STOP programme. He considered the whole restorative justice process was a “shambles”.
[82] The father accepted that, in about November 2018, Mr Green had stopped keeping appointments. However, he said there had been times after July 2018 when he had taken Mr Green to appointments and the person he was meant to meet with had not been there.
[83] On 14 February 2019, Project Restore advised the Police the matter could not proceed by way of restorative justice due to Mr Green’s lack of attendance at the STOP programme.
[84] On 16 April 2019, Detective Perham contacted the complainant and her younger sister. The complainant said she wished to see the matter proceeded with criminally. The younger sister advised she no longer wished to progress with her complaint.
[85] On 24 May 2019, Detective Perham submitted the file for review but advised the file would have to be reassigned to another officer as she was commencing maternity leave on 8 June 2019.
[86]On 14 July 2019, Mr Green was arrested and charged.
[87] The evidence as to precisely what happened during the Project Restore involvement was inadequate. According to the witness Ms Annan, Project Restore had a “harmful sexual behaviour specialist”, Bernard Smith who was the primary person working with Mr Green in their programme. He met with Mr Green, made contact with the STOP programme and ultimately arranged for Mr Green to be involved in a STOP programme. Neither Mr Green nor the Police called evidence from Mr Smith at the hearing in the District Court. There was a clinician who had, for a time, met with Mr Green weekly at STOP. Mr Green’s father confirmed that Mr Green had been regularly involved with the STOP programme at least between July and November 2018. There was no evidence from the person he had been involved with at STOP.
[88] There was no evidence from either Mr Green or his father as to what Mr Green’s circumstances were between November 2018 and February 2019 to explain why he had stopped attending the programme.
[89] Because STOP advised Project Restore that Mr Green had ceased attending and they had decided they could not continue doing further work with him, I infer those dealing with Mr Green at STOP did not consider there was an adequate explanation for him ceasing to attend the programme or that anything further would be achieved through trying to engage him further in the programme.
[90] The Police, Project Restore and the STOP programme were aware they were dealing with an alleged offender who faced particular personality and psychological challenges. The referral to Project Restore was, in the circumstances, a compassionate decision as far as he was concerned but one consistent with the purposes and principles of the OT Act.
[91] Mr Green had claimed to the Police that what he did with his sisters was consensual. This is quite at odds with the description of events as given by the complainant in her evidential interview. In any event, Mr Green had acknowledged being involved in sexual acts with two sisters who, in terms of their ages at the time, were significantly younger than him. The acts were totally inappropriate. His involvement with Project Restore and the STOP programme could have enabled Mr
Green to acknowledge what he had done, the harm the complainant said he had done her, and to apologise for it in ways that might have been sufficient for both daughters to decide not to be involved in criminal proceedings with their brother as the defendant.
[92] I do not consider the Police can be criticised in the circumstances of this case for deciding, in consultation with the two daughters and the parents, that matters could be dealt with through Project Restore. This restorative justice process could have avoided the need for family members to be engaged in criminal court proceedings, and the potential consequences for Mr Green that could flow from that.
The context for the Judge’s decision as to the exercise of his discretion
[93] The Judge found the delay between the alleged incidents of rape and Mr Green being charged in July 2019 could not be considered unnecessary, as referred to in s
322. There was no challenge to the correctness of that decision.
[94] The alleged offending was said to have occurred between 2009 and 2011. Mr Green was 23 when he was charged with this offending in 2019. The Judge found, from the perspective of a defendant aged 24, at the time he heard the matter, a delay of 10 years would be unduly protracted in terms of s 322 of the OT Act. There is no challenge to the Judge’s decision in that regard.
[95] The Judge then went on to exercise his discretion whether to dismiss the charges. Mr Lucas submitted there were errors in the exercise of this discretion which require review.
Claimed failure of the Judge to take into account relevant considerations
[96] Mr Green’s pleaded particulars as to this were that the Judge failed to take into account the following relevant considerations:
(a) Mr Green’s mental health history;
(b) Mr Green’s lack of criminal offending since the alleged offending against the complainant; and
(c) Mr Green’s lack of knowledge that the proceedings could be initiated if he did not complete the restorative justice and STOP courses.
[97] I do not accept the Judge failed to take into account Mr Green’s mental health history. At the outset of his decision, the Judge said:40
It is accepted he has mental health issues and was diagnosed with ADHD and severe anxiety. He is on the autism spectrum. At the time of his referral to Project Restore he also had suicide ideations.
[98] Just because the Judge did not expressly refer to these difficulties later in his discussion as to how he would exercise his discretion does not mean he was not mindful of this when he discussed the various factors that led to his decision, in the exercise of his discretion, not to dismiss the charges. Those factors included the likely need to ensure, if Mr Green’s guilt was established, that he received treatment.
[99] Furthermore, I do not consider, to the extent there was evidence of Mr Green’s psychological difficulties, those difficulties would have excused his withdrawal from the STOP programme or reduced the need for him to follow through on the restorative justice process. Such a course of action would still be needed to hold him accountable in some way for what he had allegedly done (even if his sexual involvement with a younger sister or sisters was consensual), to reduce the risk of his reoffending in a similar way in the future, and to recognise the interests of the complainant as an alleged victim. These were all matters which had to be considered given the purposes of the OT Act.
[100] The Judge noted that Project Restore had deemed it necessary for Mr Green to complete the STOP programme.41 The STOP programme was working with Mr Green with knowledge of his mental health history. That Mr Green was on the autism spectrum would not mean there was no need for him to do all he could to complete the programme he had embarked on with STOP.
[101] I do not accept the Judge failed to take into account Mr Green’s lack of offending since the alleged offending against the complainant. The Judge expressly
40 R v Green, above n 3, at [3].
41 At [82].
referred to Mr Green having no criminal record when considering how he would exercise his discretion.42 He also referred to Mr Green’s denial of the offending but, against that, weighed the fact that Project Restore had considered it was necessary for Mr Green to attend the STOP programme. It was clear from the Judge’s decision that he was concerned Mr Green had not pursued all the measures that people at Project Restore and STOP had considered were necessary for his rehabilitation.
[102] The Judge appreciated that Mr Green had not been charged with or convicted of any other criminal offending. I was told by counsel that, at the time of his arrest, Mr Green was living in a flatting situation. This was consistent with evidence as to the circumstances of his arrest on the charges he now faces. There was however a marked lack of evidence about how Mr Green had addressed the concerns which had led to his family deciding there would be benefits in him participating in the Project Restore restorative justice programme. There was no evidence of that sort from his father who had been involved in the decision to involve Mr Green in Project Restore.
[103] It is correct that the Judge did not refer to evidence from Detective Perham that she had not told Mr Green directly that criminal proceedings would follow if there was not a successful outcome from Project Restore.
[104] The Judge referred to evidence that Mr Green was required, following an assessment, to complete a STOP programme before any restorative justice meeting could take place. He also referred to that decision having been made after Project Restore’s assessment of Mr Green’s personal traits and the disclosed material, including discrepancies between what the complainant alleged and what Mr Green had disclosed.
[105] The Judge found that no assurances were given to Mr Green, either directly or to his parents, that if he did not complete Project Restore he would not be charged with the offences. The Judge also said it was implicit in the referral to Project Restore that the programme had to be completed, including the requirement to complete the STOP programme. This was necessary so the complainant could be satisfied the issues had been addressed.
42 At [82].
[106] The Judge’s findings in this regard accorded with the evidence he had received. Mr Green’s parents had been fully involved in the decision to have the situation dealt with initially through Project Restore. His mother had gone with both her daughters when they initially made their complaints to the Police. His father had assisted in taking Mr Green to STOP sessions. The Police had largely left it to Project Restore, Mr Green and his family to do what was necessary to achieve a positive outcome from a restorative justice process. Mr Green’s father said in evidence that Mr Green would have benefited from being told precisely what he had to do and of what the consequences would be if he did not do what was required. While that may have been so, Mr Green and his family must have been aware that he would face the prospect of criminal proceedings if there was not a positive outcome from the restorative justice process for Mr Green and both daughters.
[107] A clear statement from the Police, that criminal proceedings would follow if there was not a positive restorative justice outcome, might have further incentivised Mr Green to participate fully to the extent deemed necessary in the STOP programme. The fact Mr Green did not receive such a clear indication from the Police and may not have been given this by his parents or people he was engaged with in Project Restore or the STOP programme, does not alter the fact that Mr Green needed to complete the STOP programme. He needed to do this to make progress towards rehabilitation so as to be able to address the concerns of the complainant and for that to be a factor that would weigh significantly towards a dismissal of the criminal proceedings.
[108] There was thus no material error in the Judge not referring to evidence that Mr Green had not been told directly by the Police that, if there was not a successful outcome from Project Restore, criminal proceedings may follow.
Alleged error in the Judge taking into account an irrelevant consideration
[109] Mr Green’s pleading was that, in declining a stay, the Judge had taken into account an irrelevant consideration, namely the allegation that Mr Green had committed sexual offending against his other sister despite no charges being laid for that matter.
[110]As to that, the Judge said:43
[83] The initial allegations were that the defendant had also abused his youngest sister. While the defendant is not facing any charges in relation to the younger sister, the fact that allegations have been made highlights the need for the defendant to complete the STOP programme to ensure no further offences occur.
[111] Given the purposes of the OT Act, the family context of the alleged offending which was the subject of criminal charges and the decision of the parents and both the daughters support the referral to Project Restore, I do not consider this was an irrelevant consideration. Significantly, Mr Green’s mother had gone with both sisters to support them when they initially made their complaints to the Police. There was some evidence in the evidential interview with the complainant to support an initial allegation that had been made by the younger sister.
[112] There was no error in the Judge saying the fact that the younger sister had made allegations highlighted “the need for the defendant to complete the STOP programme to ensure no further offences occur”.44
Mr Green’s claim that the Judge made an unreasonable finding of fact
[113] Mr Lucas submitted that the Judge made an unreasonable finding of fact in determining that Mr Green and his family were aware that Mr Green was required to complete Project Restore and the STOP course.
[114]In his decision, the Judge said:
[57] No assurances were given to the defendant, either directly or to his parents, that if he did not complete Project Restore he would not be charged with the offences.
[58] It was implicit in his referral to Project Restore that the programme had to be completed, including their requirement to complete the STOP programme. This was necessary so the complainant could be satisfied that the issues had been addressed.
43 R v Green, above n 3.
44 At [83].
[115] I consider these findings were reasonably open to the Judge on the evidence before him.
[116] Detective Perham was clear she never represented to the parents that the Police were not ever going to lay charges. Detective Perham said in her evidence that she did mention to both the daughters and their mother that the court process would be a possibility if Project Restore fell over and the matter was referred back to the Police. She was adamant it was conveyed to the Green family that, if Mr Green did not comply with their processes by not attend counselling sessions and so on, the matter would be referred back to the Police.
[117] In his evidence, Mr Green’s father said he understood from talking to the Police that:
Project Restore was a meeting of both parties and come to some resolution which also involved restorative justice and making sure that all the parties actually got what they wanted out of it so that they could go forward, yeah.
[118] Mr Green’s father said they were not explicitly told Mr Green could be charged if he failed Project Restore. However, he was aware and understood that Project Restore was being pursued to avoid criminal proceedings.
[119] At about the time the Police spoke to the family about Project Restore, the two daughters had gone to the Police. The complainant had participated in an evidential interview. Mr Green had been arrested and interviewed. It would have been clear to all parties that criminal proceedings could continue if involvement with Project Restore and its programmes did not achieve what all parties then wanted.
[120] Furthermore, it was properly material to the decision the Judge had to make in the exercise of his discretion that Mr Green had not satisfactorily completed the STOP programme. The Project Restore process had not achieved the restorative justice outcome that all parties initially considered might avoid the need for criminal proceedings. Even if this was because Mr Green or the family had not appreciated that criminal proceedings could result from such a failure, that would not have changed the then circumstantial context in which the Judge had to exercise his discretion.
[121]Accordingly, I find there was no error in the Judge’s decision in this regard.
Conclusion
[122] In his decision, the Judge carefully and succinctly summarised the legislative context in the OT Act for the decision he had to make. He set out the principles applicable to the case as summarised in the Supreme Court decision in H v R.45 He applied those principles in deciding, first, that the delay between the alleged offending and the laying of charges was not unnecessarily protracted and then in deciding that it was unduly protracted. There was no challenge to the correctness of his decision in either regard.
[123] In terms of s 322, the Judge found the time that had elapsed between the date of the commission of the alleged offences and the proceedings had not been unnecessarily protracted but had been unduly protracted. There was no challenge to the correctness of his decision in either regard.
[124] Having earlier summarised principles as stated by the Supreme Court in H v R applicable to the case, the Judge then exercised his discretion. He referred to support for his reasoning in observations or determinations made in other cases. There is no criticism of his statement as to the principles that were to be applied when exercising this discretion or the authorities he cited.
[125] I have found there was no material error in the factual determinations he made in relation to the decision he made in the exercise of his discretion.
[126] The challenge to the Judge’s decision is made by way of judicial review, not appeal. It is not for this Court to substitute its decision for the decision which the Judge, at first instance, could reasonably come to on his assessment of the evidence before him when there was no error in the process by which he did this.
45 H v R, above n 6.
Result
[127] There having been no material error in the decision the Judge reached in refusing a stay of the proceedings, Mr Green’s application for review is declined.
[128] The Attorney-General, being successful in these proceedings, is entitled to costs on a 2B basis. If there is no agreement as to this, a memorandum as to those costs for the Attorney-General is to be filed within four weeks. A memorandum for Mr Green is to be filed within two weeks of receiving the Attorney-General’s memorandum. Any memorandum from the Attorney-General in reply is to be filed within a week of the filing of the memorandum for Mr Green. The memoranda are to be no longer than five pages. I will determine any costs issue on the papers.
Solicitors:
J D Lucas, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch
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