Helsby-Knight v Commissioner of Police
[2016] NZHC 288
•26 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-000528 [2016] NZHC 288
BETWEEN MICHAEL HELSBY-KNIGHT
Applicant
AND
COMMISSIONER OF POLICE First Respondent
MINISTRY OF FOREIGN AFFAIRS AND TRADE
Second Defendant
COMPTROLLER OF CUSTOMS Third Respondent
COMMERCE COMMISSION Fourth Respondent
(Continued over page)
Hearing: (On the papers) Counsel:
Michael Helsby-Knight in Person
Victoria Casey for First to Third, Fifth, Sixth and Eigth
Respondents
Peter Churchman QC and Muneya Shino for the Fourth
Respondent
Kimberley Kayward for the Seventh RespondentJudgment:
26 February 2016
JUDGMENT OF MOORE J [Strike out application]
This judgment was delivered by me on 26 February 2016 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
HELSBY-KNIGHT v COMMISSIONER OF POLICE & ORS [2016] NZHC 288 [26 February 2016]
ANDREGISTRAR OF THE AUCKLAND DISTRICT COURT
Fifth Respondent
LEGAL SERVICES COMMISSIONER Sixth Respondent
SERCO NZ LIMITED Seventh Respondent
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Eighth Respondent
Introduction
[1] Mr Helsby-Knight applies for judicial review of a number of decisions attributed to a wide range of Crown entities. He claims that to a greater or lesser extent some or all of these entities were involved in causing him to be deported from Thailand with the consequence he was arrested by the Police and prosecuted in New Zealand on a number of fraud-related charges.
[2] His allegation is that this process was unlawful. By way of remedy he seeks, amongst others, a stay of the criminal proceedings, a declaration his arrest was unlawful and compensatory damages.
[3] One of the respondents in this proceeding is the Commerce Commission (“the Commission”). Mr Helsby-Knight’s complaint against the Commission consists of two parts. First, he alleges that the Commission wrongly transferred the responsibility of the prosecution to the Police and was complicit in an arrangement to unlawfully remove him from Thailand. Secondly he seeks to review the decision of the Commissioner to require payment from him in respect of his request for documents under the Official Information Act 1982 (“the OIA”).
[4] The Commission applies to strike out Mr Helsby-Knight’s first claim on the grounds that no reasonably arguable cause of action is disclosed. In relation to second the Commission says that any judicial review of that decision is prohibited by statute.
Background
[5] Mr Helsby-Knight is a sentenced prisoner presently completing a sentence of imprisonment following his conviction on three fraud-related charges. He pleaded guilty in the District Court at Manukau on 1 May 2015 following a sentence indication. Due to an error in the District Court, the result of his sentence was different from that intended by the District Court Judge, which led to a series of appeals. While bringing the appeals, Mr Helsby-Knight was admitted to bail with a
24 hour electronically monitored curfew.
[6] On 21 July 2015, the Court of Appeal overturned Mr Helsby-Knight’s sentence of three years and four months’ imprisonment and imposed a sentence of three years and one month’s imprisonment. He was released on 25 November 2015.
[7] Mr Helsby-Knight is a 56-year old New Zealander. In his statement of claim he says he has lived in Asia since 2009. On 1 November 2012 he says he was transported to New Zealand from Thailand as part of what he describes was a “de facto/disguised extradition”. On his arrival in New Zealand he was arrested and charged by the Police.
[8] By way of background Mr Helsby-Knight says he was involved in a business which failed, apparently due to border inspections on the goods which he was importing. He claims this caused his business partner to leave the business which, in turn, caused Mr Helsby-Knight to fail to meet a number of orders. When these orders were unable to be met a complaint was apparently laid with the Commission.1
The Commission, after completing an investigation, referred the matter to the
Serious Fraud Office which referred it to the Police. At no stage was Mr Helsby- Knight contacted.
[9] On 7 August 2012 he claims the Police laid the first charges against him. He says he was not advised of this.
[10] Mr Helsby-Knight claims that despite this he was a regular visitor to the New Zealand Embassy and often spoke with the New Zealand Consul. Also stationed at the Embassy was the New Zealand Police liaison officer. Mr Helsby-Knight claims no one took any steps to inform him that charges had been laid against him in New Zealand.
[11] On 20 October 2012 he was arrested by the Thailand Police and placed in the Bangkok Immigration Centre. It seems this was in relation to immigration matters, although Mr Helsby-Knight alleges that the New Zealand Police were involved in
arranging this turn of events. There, he says, he was visited by the New Zealand
1 The Commission, in its statement of defence, says this complaint was referred to the Commission by the Police. However, for the purposes of this application I proceed on the basis of the facts set out in the statement of claim, subject to the limitations set out below at [25].
Consul who he says advised him his best course would be to purchase an air ticket to New Zealand and make a voluntary return. Mr Helsby-Knight says he followed this advice.
[12] On 2 November 2012, he arrived at the Auckland International Airport where he was met by detectives. He was taken to the Auckland Central Police Station and questioned. The following day he says he was formally arrested and charged. He claims it was not until these events that he became aware of the charges.
[13] Following his arrest Mr Helsby-Knight engaged with a number of the parties to these proceedings. Of particular relevance to the present application is an OIA request he made to the Commission. The request was not actioned because the Commissioner required Mr Helsby-Knight to pay the associated costs in advance. He has not made any payment. The matter has since been referred to the Ombudsman.
Statement of claim
[14] In a discursive and somewhat unstructured 43-page statement of claim Mr Helsby-Knight makes wide ranging allegations against the various Crown parties. He summarises these allegations in the following way:
“22.This Judicial Review relates to the Respondents, and how they intentionally made unlawful decisions, did not abide by policy or procedure in the investigation, prosecution and disguised extradition of the Appellant (albeit illegally) to New Zealand from Thailand.”
[15] Mr Helsby-Knight refers to various statutes and other sources of law which he alleges have been breached by the respondents, either individually or collectively.
[16] Of particular relevance to the present application are the allegations made against the Commission. Only a very limited part of the statement of claim is devoted to the Commission. Although the Commission is mentioned in the narrative2 no cause of action is articulated and no relief is sought against the
Commission in relation to the decisions relevant to those paragraphs.
2 At [41] to [43].
[17] The only claims made against the Commission appear to be set out at [85] where it is alleged the Commission should have prosecuted Mr Helsby-Knight itself and not referred the matter to the Police. Furthermore, it is alleged that the Commission:
“resolved not to assist the Applicant while in (sic) he was in NECF or provide documents to the Applicant under the OIA to access documents to prepare his defence.”
[18] Set out below are the paragraphs of the claim which relate to the
Commission:
“84. DECISION TWO - The decisions to be reviewed surround the circumstances, procedures and lawfulness around the jurisdiction of the [Police] to criminally prosecute a commercial dispute.
85.Part A. - The Applicant is an established trader. Therefore any prosecution should have stayed with the Commerce Commission
86.Part B. - [The Commission] resolved to hand the case over to the First Respondent knowing they could influence the Thai authorities through Interpol to effect a disguised extradition was unlawful.
87.Part C. - The [Commission] resolved to not assist the Applicant while in he was in MECF or provide documents to the Applicant under the OIA to access documents to prepare his defence.
88.Part D. - The [Commission] volunteered information to the [Police] however resolved to ask for $7,000.00 from the Applicant, payable upfront for a copy of his file to prepare a defence,
89.Part E. - The decisions to be reviewed surround the circumstances, procedures and lawfulness of the [Police] being involved in the Applicants' commercial disputes and threatening emails sent to the Applicant on the [Police’s] email system.
90. Grounds of Review
a. Error of Law
b. Improper exercise of Power c. Essential precondition
d. Bias
91. Acts, Rules, Policy Breached:
a. Breach of the New Zealand Bill of Rights Act 1990 b. Breach of the Fair Trading Act
c. Breach of the Criminal Disclosure Act d. Breach of the Evidence Act
92. Remedy -
a. Compensation (Baigents case)
b. Declaration the transfer of the prosecution is invalid
c.Declaration asking for fees to provide information in the circumstances was unreasonable
d. Damages”
[19] Thus, in essence, Mr Helsby-Knight’s complaints against the Commission are first the Commission’s decision to refer the matter to the Police which he says was made for an improper purpose and neglected to consider relevant factors and secondly, the Commission’s demand that he meet the costs in relation to his OIA request.
Commission’s strike out application
[20] The Commission applies to strike out Mr Helsby-Knight’s claims against it. The grounds of the application are that no cause of action is alleged and any cause of action would be statute barred.
[21] In relation to the first ground, the Commission’s position is that the statement of claim does not disclose a clear cause of action and that any coherent accusation is sheer speculation and should be struck out. Unsurprisingly the Commission also claims the decision it made to refer the matter to the Police was within its power and was made entirely appropriately.
[22] In relation to the second ground the Commission says that s 34 of the OIA creates a prohibition on bringing an application for judicial review against a decision which has not yet been considered by the Ombudsman.
[23] Mr Helsby-Knight has filed no submissions.
Legal principles on strike out
[24] Rule 15.1(1) of the High Court Rules empowers a Court to strike out all or part of a pleading if it:
(a) discloses no reasonably arguable cause of action; (b) is likely to cause prejudice or delay;
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the Court.
[25] The approach to be taken on a strike out application is well settled. It may be summarised as follows:3
(a) pleaded facts, whether or not admitted are assumed to be true although there is no requirement for the Court to accept facts which are entirely speculative or which beggar belief;
(b)in order to strike out a cause of action it must be clearly untenable. If a pleading is capable of success if amended, it will not generally be appropriate to strike it out;
(c) the jurisdiction to strike out is exercised sparingly and only in clear cases. Despite this, the fact that the claim raises a difficult legal question does not mean that it is unable to be struck out.
[26] I now turn to consider the two parts of Mr Helsby-Knight’s claim against
these principles.
3 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at [267]; Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
Decision to refer matter to the Police
[27] This is Mr Helsby-Knight’s primary complaint. The Commission accepts it made a decision to refer the matter (or refer it back) to the Police.
[28] Under this heading Mr Helsby-Knight’s objection appears to be based on two allegations. The first is that the Commission should have conducted any prosecution itself because Mr Helsby-Knight was an “established trader” and the dispute was a commercial one. Secondly the Commission transferred the matter to the Police for an improper collateral purpose, namely to effect a “de facto extradition” by securing his return by deception to New Zealand for the purpose of being arrested and charged.
[29] While the claim is inadequately particularised, Mr Helsby-Knight’s complaint appears to be that in making this decision the Commission considered irrelevant factors and it made its decision for an improper and/or collateral purpose. Both of these allegations are recognised grounds of judicial review. The jurisdiction to review a decision on the grounds that the decision maker took into account irrelevant matters is well established.4 Furthermore, there is an increasing body of
case law which supports improper purpose as a ground for review.5
[30] I shall deal with each of Mr Helsby-Knight’s complaints separately.
[31] First, the decision by the Commission to refer the investigation and prosecution to the Police cannot be, in itself, objectionable. It is commonplace for prosecution agencies to refer matters to the Police to investigate and/or prosecute. The reasons are numerous. For example, not all investigation agencies possess the compulsive powers of the Police. If the grounds are made out the Police may apply for and obtain a search warrant under s 6 of the Search and Surveillance At 2012. Only a constable may make such an application. Thus, although the investigation may be carried out by an agency other than the Police, it is entirely routine for the
Police to provide specific assistance in obtaining a search warrant if the s 6 grounds
4 CREEDNZ v Governor-General [1981] 1 NZLR 172 (CA) at [196] to [197].
5 Poananga v State Services Commission [1985] 2 NZLR 385 (CA); Attorney-General v Ireland
[2002] 2 NZLR 220 (CA).
are satisfied. Other reasons for a referral may include the fact that some agencies may not be sufficiently resourced. In other cases prosecuting under the Crimes Act
1961 and having access to the necessary expertise may dictate a referral to the Police. The fact that Mr Helsby-Knight was “an established trader” or that the matter was a commercial dispute cannot mean the Commission was obliged to undertake the investigation and prosecution itself. Any such view is fundamentally misconceived. This ground must necessarily fail.
[32] The second allegation is that the multiple agencies, including the Commission, were complicit in securing the improper “de facto” extradition of Mr Helsby-Knight from Thailand to New Zealand to face charges in New Zealand.
[33] More particularly Mr Helsby-Knight complains that he was not told about the charges in New Zealand and, in fact, he appears to claim that this fact was deliberately withheld from him by the New Zealand Police, the New Zealand Consul, the Thai authorities, the Commission and, quite possibility, others.
[34] The first point is that there is no obligation, beyond that which obviously applies if a defendant is detained and it is proposed to interview them, to advise or warn a defendant that charges have been laid in another jurisdiction.
[35] Mr Helsby-Knight’s claim that various agencies conspired to cause his return to New Zealand requires an acceptance which is fanciful and speculative. It is a claim the New Zealand and Thai Police, the Consul, the Commission and possibly others were complicit in a highly sophisticated and elaborate artifice designed to secure Mr Helsby-Knight’s return to New Zealand.
[36] I accept that strike out applications generally proceed on the basis that all pleaded facts are presumed to be true. However, this broad principle is subject to limitations. Where the allegations are fanciful or entirely speculative this can justify
striking out a statement of claim.6
6 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at [267]
[37] Traditionally, the Courts have been reluctant to enquire into the way a criminal defendant has arrived in the jurisdiction.7 The reasoning behind this principle is that the Court is deemed incompetent to consider whether the foreign authorities had conducted themselves in accordance with the laws which there applied. However, more recently, Courts in New Zealand8 and England have held,9 at least at the strike-out stage, that such an enquiry can be made and that a prosecution may be stayed as a result.
[38] However, this principle does not displace the ability of a Court to dismiss such a claim if it determines it is fanciful, frivolous, vexatious or speculative.
[39] Given the breadth of Mr Helsby-Knight’s claim, its absence of any degree of specificity and the wholly improbable scenario which he alleges, I have no hesitation in concluding his claim is so fanciful and speculative that it should be struck out.
[40] I am fortified in this view that unlike cases such as R v Hartley,10 Mr Helsby- Knight does not point to any specific breach of his rights in returning to New Zealand. His return was not an unlawful or de facto extradition in the fashion discussed in Hartley. Mr Helsby-Knight purchased his own ticket to return to New Zealand. His decision was a voluntary one and he does not claim he was subjected to any compulsion or improper process in leaving Thailand to fly to New Zealand. His complaint, although not specified as such, seems to be that had he known criminal charges were awaiting him on his return to New Zealand he would not have left Thailand. This factor underscores the voluntary nature of his decision. That issue has already been discussed.
[41] Additionally, I agree with the Commission that nowhere in the pleadings is the nature of any obligation on the Commission to prosecute the applicant itself
articulated. I also agree with the Commission that although it is mentioned in the
7 R v Sattler (1858) Dears & Bell 539.
8 R v Hartley [1978] 2 NZLR 199; Moevao v Department of Labour [1980] 1 NZLR 464.
9 R v Horseferry Road Court; ex parte Bennett [1994] 1 AC 42 (HL).
10 R v Hartley above n 8.
narrative11 no cause of action is articulated and no relief is sought against the
Commission in relation to the relevant decisions.
[42] Furthermore, amongst the remedies sought by Mr Helsby-Knight is a stay in relation to the charges to which he has since pleaded guilty. He has been sentenced. He has served that sentence. This remedy is thus no longer available because there are no proceedings extant to stay.
OIA issue
[43] The language of s 34 of the OIA is clear. It states:
“34 Restriction on application for review
Where any person makes a request under this Act that official information be made available to him and a decision to which section 28(1) or section 28(2) applies is made in relation to that request, that person—
(a) shall not make an application under section 4(1) of the Judicature Amendment Act 1972 for the review of that decision; and
(b) shall not commence any proceedings in which that decision is sought to be challenged, quashed, or called in question in any court,—
unless a complaint made by that person in respect of that decision has first been determined under this Part.”
[44] The effect of this provision is that it delays judicial review. It does not create a prohibition. On a plain reading of s 34 I agree with the Commission this Court cannot entertain an application for judicial review and this cause of action must also be struck out.
Result
[45] I make an order striking out the Commission as a respondent in this proceeding.
11 Clauses 41 to 43 of the statement of claim.
[46] If the Commission seeks costs it is to file and serve a memorandum within 15 working days of the date of this judgment and Mr Helsby-Knight is to file and serve
any response within 10 working days thereafter.
Moore J
Solicitors:
Crown Law, WellingtonMs Casey, Wellington
Mr Churchman QC, Wellington
Copy to:
Mr Helsby-Knight, Huntly
Commerce Commission, Wellington
0