Hitchcock v District Court at Christchurch
[2024] NZHC 1808
•8 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2023-409-650
[2024] NZHC 1808
BETWEEN IAN EDWARD HITCHCOCK
Applicant
AND
THE DISTRICT COURT AT CHRISTCHURCH
First Respondent
AND
MATTHEW REYNOLDS
Second Respondent
Hearing: 25 June 2024 Appearances:
Applicant in person
Appearance excused for First Respondent T J Mackenzie for Second Respondent
Judgment:
8 July 2024
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 8 July 2024 at 10.30 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
HITCHCOCK v THE DISTRICT COURT AT CHRISTCHURCH [2024] NZHC 1808 [8 July 2024]
[1] Mr Hitchcock has had, what are from his perspective, unsatisfactory dealings with various police officers.1 In early 2023 Mr Hitchcock sought to commence a private prosecution against the respondent and another police officer alleging they committed assault with intent to injure.
[2] In a fully reasoned decision dated 22 August 2023, Judge Crosbie refused to accept the charges for filing, on the grounds they were an abuse of process.2
[3] Mr Hitchcock took issue with the content of an affidavit sworn by the second respondent, and which was filed in response to the proposed criminal charges Judge Crosbie refused to accept for filing. He subsequently sought, on two occasions, to file criminal charges against the second respondent. On each occasion, a Judge of the District Court declined to accept the charging document for filing.
[4] Mr Hitchcock now seeks judicial review of those decisions. The grounds of review are:3
(a)that the decisions failed to give sufficient reasons (error of law); and
(b)the decisions failed to take into account the evidence before the decision maker (unreasonableness).
The procedural background
[5] The second respondent, a police constable, swore an affidavit on 24 May 2023 “to provide further information to the Court regarding the attempted prosecution of [him] … under s 193 Crimes Act”. As part of the background, the second respondent said “Mr Hitchcock has made unsuccessful complaints to the IPCA and to the Human Rights Commission, …” about him.
1 That history is not relevant to the current proceedings but is set out in full in a minute of Judge Neave dated 7 June 2023 in proceedings CIV-2022-009-000588.
2 Hitchcock v Reynolds [2023] NZDC 17599; applying Criminal Procedure Act 2011, s 26(3)(b).
3 In a joint memorandum dated 13 March 2024, the parties agreed that these were the relevant grounds of review.
[6] Mr Hitchcock, being of the view that the statement in the affidavit was untrue, attempted, on 5 October 2023, to file a charge against the second defendant alleging that he wilfully attempted to pervert the course of justice.4
[7] On 30 October 2023, Judge Large issued a direction declining to accept the charge for filing saying:5
I direct that the charging document must not be accepted for filing as I consider that the Evidence provided by the proposed prosecution is insufficient to justify a trial.
[8] On 6 November 2023, Mr Hitchcock then attempted to file a charge of perjury against Mr Reynolds, again relying on the statement in the May 2023 affidavit.6
[9] On 16 November 2023, Judge Zohrab issued a direction declining to accept the charge for filing. His direction read:
On the basis of the material filed in support of the application to commence a private prosecution, I am not satisfied that the evidence provided by Mr Hitchcock is sufficient to justify a trial on a charge of perjury. Accordingly, I direct that charging document not be accepted for filing [sic].
[10] The charging documents were both filed along with a summary of facts which in each case asserted the following:
REYNOLDS submitted an affidavit dated the 24th of May 2023 to the Christchurch District Court.
REYNOLDS’ affidavit falsely states to the Court that:
Mr Hitchcock has made an “unsuccessful” complaint to the Human Rights Commission.
This is not true.
REYNOLDS has deliberately attempted to mislead the Court by way of his sworn affidavit in an attempt to garner favour with the Judge and Court regarding the Private Prosecution.
Attached is REYNOLDS’ sworn affidavit marked ‘B’.
Attached is the letter, marked ‘C’, from the Human Right (sic) Commission confirming the complaint was successful.
4 Crimes Act 1961, s 116.
5 Criminal Procedure Act 2011, s 26(3)(a).
6 Crimes Act, s 108.
[11] The letter from the Human Rights Commission (the Commission) dated 22 March 2023 which was attached was addressed to the Commissioner of New Zealand Police. It notified the Commissioner that a complaint had been received from Mr Hitchcock. It summarised the complaint. It advised that the Commission “offers a dispute resolution service” and concluded by asking whether the New Zealand Police and Officer Reynolds were willing to participate in the dispute resolution process.
[12] Mr Hitchcock was, and remains of the view that this evidence is sufficient to prove the charges he sought to file, but in particular, the charge of perjury.
[13] For completeness, Mr Hitchcock does not submit that this is a case, such as in D v Auckland District Court, where the District Court Judge should have directed that evidence be filed before striking out the proceeding on the grounds of insufficiency of evidence.7 Mr Hitchcock confirms in his submissions, that all the relevant information and evidence was before the Court to have accepted his charging documents for filing.
Submissions for Mr Hitchcock
[14] Mr Hitchcock is critical of the fact that there was “no justification or comment” explaining why the evidence he supplied was “insufficient”. In support of that assertion, he points to the decision of Wang v North Shore District Court, provided by counsel for the second respondent, where Duffy J said:8
I also consider that in light of the findings that a decision to issue a summons involved the exercise of a judicial discretion, a decision to refuse to do so should include reasons for the refusal. In this way, the principle of open justice can be satisfied; the applicant will be informed as to why his request was refused; and the basis for the refusal will be apparent, so that any error or arbitrariness in the decision-making will be revealed.
[15] The second ground raised by Mr Hitchcock is that the decision failed to take into account the evidence which was before the decision maker and which he asserts could not be considered insufficient.
7 D v Auckland District Court [2022] NZCA 477.
8 Wang v North Shore District Court [2013] NZHC 3126, [2014] NZAR 101 at [24].
[16] Mr Hitchcock accepted that perhaps the first charge which required him to prove that the second respondent had “deliberately” attempted to pervert the course of justice may not have been successful. However, he considered that the second charge, of perjury, was much more straightforward and there was sufficient evidence before the Court to support the charge, meaning the decision to reject it was in error. In his view, the letter from the Commission plainly contradicts the assertion in Mr Reynolds’ affidavit that the claim was “unsuccessful”.
[17] I engaged Mr Hitchcock on this issue as, reading the letter, there did not appear to be any determination by the Commission.9 Mr Hitchcock confirmed to me that the outcome he sought from his complaint to the Commission was an apology from the relevant police officers, but that did not eventuate. When I asked why he considered his complaint to the Commission was “successful”, he said he considered it successful, because it was accepted for consideration.
Submissions for the second respondent
[18] In addressing the first ground of review, Mr Mackenzie, for the second respondent, acknowledged the decision in Wang v North Shore District Court, but pointed to subsequent High Court decisions which appeared to take a less stringent approach to the requirement to provide reasons when rejecting a charge for filing.
[19] In Goodman Fielder New Zealand Ltd v District Court at Porirua, Cooke J considered Wang, but came to a different view saying:10
[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. 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
9 Nor would I expect there to be given the Commission provides a dispute resolution process, not an adjudicative process.
10 Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR 489.
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.
[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.
(footnotes omitted)
In that case, the challenge to the decision to reject the charges for filing on the grounds of a failure to provide reasons or adequate reasons, was dismissed.
[20] Mr Mackenzie also points to the recent decision in Deliu v District Court at Auckland, where Harvey J stated:11
There is no right of appeal against a decision under s 26. There is also no express requirement to conduct a hearing. Nor is there a requirement to give reasons, but if a decision is made not to accept the charges for filing, brief reasons may be appropriate given the right to challenge the decision in judicial review proceedings.
(footnotes omitted)
[21] Mr Mackenzie submits that the principle that can be distilled from these cases is that decisions, or directions, which are devoid of any explanation are not sufficient. However, considered and expressive judicial reasoning is also not required. A short note of why the charge has not been accepted, in terms of the available grounds, is sufficient. That is what has been done here. The Judge, in each case, has identified the evidence to be insufficient to support the charge and rejected the charge on that ground.
11 Deliu v District Court at Auckland [2023] NZHC 658 at [33].
[22] In terms of the second ground, being a failure to consider the evidence, Mr Mackenzie submits it is clear that each Judge did consider the evidence. It was as a result of a review of that evidence that the charge was dismissed on each occasion. While the Judge in each case did not articulate why the evidence was insufficient, that does not mean it was not considered.
Discussion
Was the Judge in each case obliged to give reasons?
[23] In the present case, the directions issued by the Judges rejecting the charges for filing were brief. However, in both cases they identified the reason for rejecting the charge as being the evidence provided was insufficient to justify a trial on the charge, thus reflecting the jurisdictional basis for rejecting a charge under s 26(3)(a) of the Criminal Procedure Act 2011.
[24] In my view, Cooke J was correct, in Goodman Fielder New Zealand Ltd, to distinguish decisions under s 26 of the CPA from most other decisions made by the District Court which are amenable to appeal. There is no requirement to provide a written judgment when declining to accept a charge for filing under s 26. What is required is a record of the s 26 decision which refers to the jurisdiction to reject the charge for filing under s 26 and records the Judge’s decision on the jurisdictional basis for rejecting the charge. As long as that is identified, there is a sufficient record of the decision made to commence judicial review proceedings, as here. In the circumstance, there has been no error of law by virtue of a failure to provide more detailed reasons for the decision. I note, in any event, Mr Hitchcock did not press this ground of review in his submissions. Really, it was clear he took issue with that being a reason which justified dismissal of the charges. I therefore move to the more substantial issue from Mr Hitchcock’s point of view which is whether the decision made by each Judge was open to him on the material before him.
[25] On this issue, I am satisfied, by a considerable margin, that the evidence was insufficient to support either charge. However, as Mr Hitchcock acknowledged the difficulties with the charge of attempting to pervert the course of justice and focused his submissions on the decision to reject the charge of perjury, I do the same.
[26] In order to be guilty of perjury a defendant needs to make an assertion as to a matter of fact which they know to be false, and in doing so, intend to mislead the Court.12 Furthermore, the party making the claim will need to prove why the evidence is perjured, rather than merely untrue.13 In the present case, it is difficult to even discern the basis on which Mr Hitchcock alleges the constable’s statement is untrue let alone why it amounts to perjury.
[27] Whether a matter is successful or unsuccessful is generally understood to relate to an outcome or result of the activity. The letter from the Commission was written at a preliminary stage. It does not record an outcome to the proceedings which would contradict the statement that the complaint was “unsuccessful”. Furthermore, on Mr Hitchcock’s own admission, he did not succeed in getting the outcome he wanted (an apology) before the Commission. His explanation that in his view, he was successful in that the Commission agreed to consider his complaint could never be sufficient to establish that the second respondent’s statement was untrue, let alone deliberately untrue for the purpose of misleading the Court. The evidence relied on to support the allegation that a false statement of fact was made must objectively establish that, and not rely on a subjective view of the truth of the statement held by the individual bringing the charge.
[28] Given the evidence falls at the first hurdle, in that it does not prove that the statement in the affidavit was untrue, I do not need to go on and consider whether the evidence was sufficient to prove the other elements of the offence, including that the second respondent knew the statement was false and he intended to mislead the Court on issues material to the proceeding.
[29]In summary, I find:
(a)the two decisions of the District Court refusing to accept the charges for filing gave adequate reasons for refusing to accept the charges and no error of law is established; and
12 W(CA641/2019) v R [2020] NZCA 286 at [26].
13 Shannon v Shannon [2005] NZCA 83, (2005) 17 PRNZ 587 at [131].
(b)the Judges both considered the available evidence and correctly assessed it as insufficient to support the charges. These decisions were clearly reasonably available on the evidence presented.
[30]The application for judicial review is declined.
[31]Costs are reserved.
[32] My preliminary view is that costs should be awarded to the second respondent on a 2B basis. If costs cannot be agreed, any application for costs must be made within 20 working days of this decision.
Solicitors:
Crown Law, Wellington
Copy to:
Applicant
Tim Mackenzie, Barrister, Christchurch
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