Green v Police - [2019] NZHC 1019

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2427

[2019] NZHC 1019

UNDER the Judicial Review Procedure Act 2016

BETWEEN

GLENN GREEN

Applicant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Appearances:

Applicant, Self-represented J Simpson for Respondent

Judgment:

30 May 2019

COSTS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 30 May 2019 at 2.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

GREEN v NEW ZEALAND POLICE [2019] NZHC 1019 [30 May 2019]

[1] On 5 April 2019, I gave a judgment striking out an application for judicial review by Glenn Green and reserved the question of costs for consideration on the basis of memoranda to be filed.1

[2]Counsel for the respondent has filed a memorandum seeking payment of

$3,270, being the total amount of the costs incurred. Mr Green opposes the making of any costs order.

The nature of the proceeding

[3] Mr Green appeared in the District Court at Waitakere on 13 September 2018, charged with blackmail. After he had pleaded not guilty and elected trial by jury, his application for bail pending trial was opposed by the Police. The grounds for opposition were set out in a standard form, POL 128 08/10, which is routinely completed by the Police when an application for court bail is opposed.

[4] Judge L Tremewan declined to grant bail, giving her reasons in a considered judgment.2 Mr Green appealed against the refusal of bail but subsequently abandoned the appeal, and it was dismissed by Lang J on 11 January 2019.

[5] In the judicial review proceeding, Mr Green sought to challenge the content of the bail opposition form and the actions of the Police in preparing it. He sought:

(a)a declaration that the bail opposition form was invalid;

(b)an order striking out the form, purportedly under rr 5.17 and 5.25 - 5.35 of the High Court Rules 2016; and

(c)an order directing that the Police "be investigated for crimes under the Crimes Act 1961".

1 Green v Police [2019] NZHC 708.
2 Police v Green [2018] NZDC 19327.

[6] In support of his claim, Mr Green alleged that the Police deliberately fabricated the completed form by including false and misleading information about his prior convictions and presented it to the District Court "to obtain a pecuniary advantage".

[7] In considering the application by the New Zealand Police to strike out Mr Green's claim, I held:

(a)The proffering of the bail opposition form did not amount to the exercise of a statutory power of decision susceptible to review under the Judicial Review Procedure Act 2016;3

(b)The Court did not, in any event, have the power to "strike out" the opposition to bail form nor to direct an investigation into spurious allegations of criminal behaviour by Police officers;4 and

(c)The claim was an abuse of the process of the Court because the real thrust of the proceeding was to challenge Judge Tremewan's decision to decline…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Green v Police

Details

AGLC: Green v Police [2019] NZHC 1019
Case: [2019] NZHC 1019
Decision Date: 30 May 2019

CaseChat Overview and Summary

Glenn Green, an applicant, brought a judicial review application against the New Zealand Police, the respondent, seeking to challenge the content of a bail opposition form and the actions of the Police in preparing it. The applicant sought a declaration that the bail opposition form was invalid, an order striking out the form, and an order directing an investigation into spurious allegations of criminal behaviour by Police officers. The Police applied for the costs of the proceeding to be awarded against the applicant. The applicant opposed the costs order, arguing that his case would have had reasonable success had he been represented by a lawyer. The court had to decide whether to make an order for costs and if so, in what amount. In deciding the costs, the court considered the general principle that a party who fails with respect to an interlocutory application should pay costs to the party who succeeds. The court noted that the applicant's case was entirely misconceived and had no prospect of success. The court held that the applicant's proposition that his claim would at least have been arguable if he had had the benefit of representation by counsel was a challenge, without foundation, to the findings which led to the order striking out the proceeding. The court directed that the applicant pay the Police costs and disbursements in the sum of $3,270.

Orders