Irwin v Department of Corrections
[2023] NZHC 3658
•13 December 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000531
[2023] NZHC 3658
BETWEEN SHARON IRWIN
Appellant
AND
DEPARTMENT OF CORRECTIONS
Respondent
Hearing: 11 December 2023 Appearances:
V Corbett for Appellant P White for Respondent
Judgment:
13 December 2023
JUDGMENT OF VENNING J
This judgment was delivered by me on 13 December 2023 at 11.00 am Registrar/Deputy Registrar
Date……………
Solicitors: Frontline Law, Whangarei
Crown Law, Wellington
Counsel: P White, Auckland
IRWIN v DEPARTMENT OF CORRECTIONS [2023] NZHC 3658 [13 December 2023]
[1] In a judgment delivered on 8 September 2023, Judge A M Wharepouri granted the Department of Corrections’ (Corrections) application to dismiss the charges brought against it by Ms Irwin on the basis they were out of time.1
[2]Ms Irwin seeks leave to appeal that decision to this Court.
Factual background
[3]I take the general background facts from the decision of the Judge:
[1] On the night of 24 October 2020, Mrs Irwin was a Corrections Officer that was assaulted by a prisoner at Auckland Prison (the Prison).
[2] The prisoner had repeatedly kicked at his cell door until it opened. After leaving his cell, the prisoner waited on the landing for staff to appear. When Mrs Irwin and a colleague arrived to do safety checks, they were unaware of the prisoner lurking on the landing in the dark. He immediately took both officers by surprise charging at them. In doing so he pushed Mrs Irwin [her] to her chest causing her to fall and breaking her arm in two places just above her wrist in the process. The prisoner then turned on Mrs Irwin’s colleague before the two of them were able to fight him off and retreat.
[3] Other prison officers were alerted. When they arrived, the prisoner moved back to another part of the landing and refused to follow any direction. A standoff resulted. After approximately two hours of negotiating with staff and management the prisoner was persuaded to enter another cell and eventually made properly secure.
[4] On 26 October 2020, a reporting was made to Work Safe to do with the assault as a workplace incident. This was done by Mr Andrew Richards, Custodial Systems Manager at the Prison, via Work Safe’s online portal. An investigation was commenced under the Health and Safety at Work Act 2015. After taking time to complete its enquiry Work Safe eventually declined to take any enforcement action against the Department in connection with the incident.
[5] Mrs Irwin needed surgery to her broken arm. In addition to her physical injuries, she also suffered post-traumatic stress, depression, and anxiety in connection with the assault. Mrs Irwin was eventually able to return to work but only after an extended break. She continues to take medication today to help with her mental disorders.
1 Irwin v Department of Corrections [2023] NZDC 19238.
Procedural background
[4] As WorkSafe (the regulator) did not intend to take enforcement action against Corrections and advised Ms Irwin of that fact, s 144(1) of the Health and Safety at Work Act 2015 (HSWA) enabled Ms Irwin to file a charging document:
144 Private prosecutions
(1)A person other than the regulator may file a charging document in respect of an offence under this Act if—
(a)the regulator has not taken, and does not intend to take, enforcement action against any person in respect of the same incident, situation, or set of circumstances; and
(b)a regulatory agency has not taken, and does not intend to take, prosecution action under any other Act against any person in respect of the same incident, situation, or set of circumstances; and
(c)any person has received notification from the regulator under section 142(2)(b) that neither the regulator nor a regulatory agency—
(i)has taken enforcement action or prosecution action against any person in respect of the same incident, situation, or set of circumstances; and
(ii)intends to take any enforcement action or prosecution action.
[5] However s 148 of the HSWA provided a limitation period for such a private prosecution:
148 Limitation period for private prosecutions
Despite section 25 of the Criminal Procedure Act 2011, proceedings for an offence against this Act may be brought by a person other than the regulator within the latest of the following periods to occur:
(a) within 2 years after the date on which the incident, situation, or set of circumstances to which the offence relates first became known, or ought reasonably to have become known, to the regulator: …
[6] By s 148(a), Ms Irwin had to bring proceedings within two years after the date on which the incident to which the offence related first became known or ought reasonably to have become known to the regulator.
[7]The parties agreed the following chronology:2
(a)24 October 2020 – The workplace incident (assault on Mrs Irwin) occurred.
(b)26 October 2020 – Work Safe was notified of the incident.
(c)28 March 2022 – Work Safe communicated to Mrs Irwin’s counsel of their decision not to take enforcement action against the Department of Corrections.
(d)7 October 2022 – Mrs Irwin by her counsel lodged charging documents with the Registrar of the North Shore District Court pursuant to s 26 of the CPA proposing to commence the private prosecution. On this same day the Registrar referred the matter to a District Court Judge for further directions.
(e)11 October 2022 – DCJ Fitzgibbon directed that Mrs Irwin file the evidence that she would call at trial.
(f)18 October 2022 – The proposed evidence was filed.
(g)21 October 2022 – Email confirmation by a Registrar was sent to Mrs Irwin’s counsel recording that the proposed evidence had been referred to a Judge for consideration.
[26 October 2022] – [The limitation date under s 148(1) HSWA].3
h)10 November 2022 – DCJ Gibson determined that Mrs Irwin’s charging documents should be accepted for filing.
The District Court judgment
[8] Judge Wharepouri considered that the application and the fate of the proposed prosecution turned on the correct interpretation of s 26 of the Criminal Procedure Act 2011 (CPA).
[9]Section 26, CPA provides:
26 Private prosecutions
(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
2 At [8], (footnotes omitted).
3 Not inserted by the parties but applies from the agreed date at (b).
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
[10] The Judge noted that s 26 operates as a filter, screening out those cases where an individual might be acting inappropriately or maliciously or where the evidence is insufficient to warrant a prosecution. He then noted that the limitation period in which to bring a private prosecution for an offence under the HSWA was set as two years.
[11] The Judge rejected Mr Corbett’s submission for Ms Irwin that the charging document had been filed when it was lodged or deposited with the Court on 7 October 2022. He considered the plain reading of s 26 contemplated a separation between a person seeking to file a charging document and gaining the necessary approval for the document to be filed. If the charging document is referred to a Judge it is only after a Judge has completed the review and determined the prosecution is not inappropriate that he or she will direct that the charging document “should be accepted for filing”. The Judge considered an expansive definition was inconsistent with s 26 operating as
a safeguard.4 Judge Wharepouri then distinguished the cases relied on by the applicant.5 Ultimately the Judge held that filing in s 26 meant more than simply lodging or depositing the documents with the Court.
[12] As the date Judge Gibson determined the charging document should be accepted for filing was 10 November 2022, it was well outside the two year limitation period imposed by s 148(a) of the Act, so that the proceedings were filed out of time.
[13] The Judge did not consider that the issue could be regarded as a procedural lapse capable of remedy under s 379 of the CPA. The time limit for filing the charging document was so fundamental it could not be circumvented by recourse to the slip rule or any inherent or ancillary power.6 For those reasons he granted the s 147 application. In the circumstances the Judge did not consider it necessary to deal with the other purported shortcomings within the charging document.
Leave
[14] The appeal is pursued under s 296 of the CPA as a question of law. Under s 296(2) leave of this Court is required to bring such an appeal.
[15] Mr White advised that Corrections no longer opposes leave. That was a responsible concession. The matter raises a potentially important matter of statutory interpretation. Leave is granted accordingly.
The appellant’s submissions
[16] Mr Corbett pursued two main arguments. First, he submitted that the appeal had been brought within two years as required by s 148 of the HSWA because it was brought when the documents were lodged with the District Court. As an alternative but related argument, he submitted the charging document was filed when it was
4 Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599.
5 Arnott v Christoffersen [1980] 2 NZLR 28; and Re Commercial Union Assurance Company (Ltd)
(1899) 18 NZLR 585.
6 Irwin v Department of Corrections, above n 1, at [21].
lodged with the Registry relying on the authorities of in Re Commercial Union Assurance Company (Ltd) and Arnott v Christoffersen.7
Corrections’ submissions
[17] Mr White supported the decision of Judge Wharepouri. He submitted that, as the Registrar had not accepted the charging document for filing under s 26(1)(a) CPA, the charging document in this case was not filed unless and until a judge directed under s 26(2) that the charging document should be accepted for filing. He noted the use of the word “proposed” by reference to both the private prosecution and the charging document in several subsections in s 26.8 Mr White submitted the importance of the procedure under s 26 which involved referral to a judge had been noted in Taka v The District Court at Auckland, and Greendrake v District Court of New Zealand.9
[18] Mr White argued that the screening function of s 26 “would be completely undone” if the act of physically submitting the charging document constituted filing. Next, he submitted that while s 148 of HWA refers to bringing proceedings, s 144 which provides for private prosecutions, refers to filing a charging document. Mr White submitted the meaning of the word “filing” under s 26 of the CPA was to be determined from the text and in light of the purpose of that Act which was the approach adopted by Judge Wharepouri.
[19] Mr White submitted that the Criminal Procedure Rules 2012 supported the proposition that for a document to be filed it must be accepted by the Registry rather than simply lodged. For example, r 2.3(7) provided for the reference of a document to a judge for a direction as to whether it should be accepted for filing. Mr White also submitted that the appellant’s reliance on an obiter comment in Dunstan v Auckland District Court10 did not bear analysis as, in his submission, Lang J had used “loose wording” to describe the physical act of filing.
7 Arnott v Christoffersen; and Re Commercial Union Assurance Company (Ltd), above n 5.
8 Criminal Procedure Act 2011, ss 26(1)(a), 26(3)(a), 26(3)(b), 26(4)(a), 26(4)(b).
9 Taka v The District Court at Auckland [2016] NZAR 1459; and Greendrake v District Court of New Zealand [2020] NZHC 2956. See also H T v The District Court at Auckland [2015] NZHC 972 at [17].
10 Dunstan v Auckland District Court [2022] NZHC 3308.
[20] For those reasons Mr White submitted the District Court Judge was correct. The charging documents were not filed under s 26 CPA until 10 November 2022 at the earliest and so were out of time. The appeal should be dismissed.
Analysis
[21] The issue in the present case is the interrelationship between s 148 of the HSWA and s 26 of the CPA and particularly, the meaning to be given to the use of the word “filing” under s 26 CPA. Section 10(1) and (2) of the Legislation Act 2019 provide:
10 How to ascertain meaning of legislation
(1)The meaning of legislation must be ascertained from its text and in the light of its purpose and its context.
(2)Subsection (1) applies whether or not the legislation’s purpose is stated in the legislation.
[22]As the learned authors of Burrows and Carter Statute Law in New Zealand
state:11
Very often the most natural grammatical meaning of the text of the provision in question gives effect to the purpose of the legislation. Where these two “interdependent” factors, grammatical meaning and purpose, are in harmony or are “co-extensive”, there is little difficulty. However, if a purely grammatical construction does not give effect to the evident purpose of the provision, the court should search for a construction that does give effect to that purpose.
[23]As McHugh JA said in Kingston v Keprose Pty Ltd (No 3) per McHugh JA:12
A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.
[24]Sir Robin Cooke (as he then was) accepted in McKenzie v Attorney-General:13
[t]he general principle of statutory interpretation that strict grammatical meaning must yield to sufficiently obvious purpose.
11 Ross Carter Burrows and Cater Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 294 (footnote omitted).
12 Kingston v Keprose Pty Ltd (No 3) (1987) 11 NSWLR 404 (CA) at 423.
13 McKenzie v Attorney-General [1992] 2 NZLR 14 (CA) at 17.
[25] The principal purpose of s 26 of the CPA is to act as a filtering mechanism. In S v Vector Ltd, O’Regan and Ellen France JJ in the Supreme Court had this to say of s 26, CPA:14
[47] Against this background, we see the statutory scheme as recognising the importance of access to justice by this means whilst also making provision for inappropriate private prosecutions to be weeded out.
A preliminary screening process
[48] Next, we see it as important that under s 26(1) the registrar may accept the document for filing without reference to a judge. Section 26(1) provides:
“(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.”
And later:
[89] We can summarise our approach in this way. First, s 26 provides a straightforward mechanism to ensure that obviously unmeritorious or abusive private prosecutions do not get underway. It operates as an initial screening mechanism to filter out a proposed private prosecution either because the proposed prosecutor's evidence is insufficient, or because the proposed prosecution is an abuse of process.
[26] Filtering as to merits under s 26 addresses a different purpose to that of the limitation period of two years under s 148 of the HSWA. The purpose of the limitation period is to ensure finality and certainty in litigation so that a potential defendant, such as Corrections in this case, is not vexed by proceedings brought years after the event, when it may be difficult to respond to the allegations and so may be prejudiced in its defence.
14 S v Vector Ltd [2020] NZSC 97 (footnotes omitted).
[27] The difference between the two purposes is highlighted in the present case where the Judge actually decided that Ms Irwin’s proposed prosecution has sufficient merit to allow it to proceed. The purpose of filtering Ms Irwin’s claim for merit under s 26 was met, but the issue remains whether the proceedings can be said to be brought within the two year limitation period as required by s 148.
[28] For the following reasons I consider Ms Irwin’s proposed proceedings were brought within time.
[29] First, as noted, the purpose of s 26 is to act as a filter to ensure that an unmeritorious claim does not proceed. The limitation period under HSWA serves a different purpose.
[30] At the very least, the concept of “filing” in s 26 CPA is ambiguous. In the Commercial Union Assurance Co (Ltd) case Stout CJ discussed the origin of the use of filing in relation to Court documents and process before concluding:15
“Filing” now really means depositing in a Court office.
The proposed charging document was deposited (or lodged) with the District Court on 7 October 2022, within time.
[31] In context, the reference to whether a charging document is to be accepted for filing in s 26(2) is not determinative of when the charging document is filed (as in lodged or deposited) with the Court. By the stage of a decision under s 26(2), the charging document has already been lodged with the Court, so “filing” cannot be interpreted in that technical sense. Rather, the reference to accepting the charging document for filing in s 26(2) is effectively approval that the private prosecution may be pursued. That is consistent with the use of the word “proposed” in the balance of s
26. I also note that even where the direction is not to accept the documents for filing, s 26(4)(b) requires the Registrar to retain a copy of the proposed charging document (as lodged with the Court). That confirms that a file for the proposed prosecution has by that stage, been created by the District Court Registry.
15 Re Commercial Union Assurance Company (Ltd), above n 5, at 588.
[32] The strict interpretation adopted by the Judge of s 26 CPA, creates its own difficulty. On that basis s 26 would effectively provide for two different dates for filing a charging document. Assuming the charging document is in an appropriate form then if it is accepted by the Registrar on that day it is lodged with the Registrar, it would be filed that day: s 26(1)(a). However if the charging document is “taken in” by the Registrar but referred to a judge under s 26(1)(b) then the same document would not be filed until weeks or months later when a judge determines it is appropriate to accept it for filing. Such a bifurcation in the filing date is an unappealing result for limitation purposes. It can be avoided if it is accepted that the private prosecution is brought for the purpose of s 148 HSWA when the charging document is lodged with the District Court to initiate the s 26 CPA process, even if the charging document is only later approved by a judge for further processing and action.
[33] Nor can I accept the Judge’s reasoning, repeated by Mr White, that treating a charging document as filed from when it was lodged would be contrary to the intent of making private prosecutions subject to the mechanism of judicial scrutiny.16 If the charging document is referred to a judge he or she may still direct it not be accepted for filing. At that stage the charging document would not be processed further.
[34] I do not consider the Criminal Procedure Rules 2012 assist Corrections’ argument. Rule 2.3(2)(a) for example confirms a charging document must be filed by delivering it to the Registry by hand. That suggests the process of filing is completed for that purpose by the physical lodgment of the document.
[35] The interests of justice also support such an interpretation. It cannot be right that a charging document could be lodged within the two year period but then sit within the Registry of the District Court for an indefinite period and ultimately be held to have been out of time by the time it is approved for filing. A person in Ms Irwin’s position filing the charging document would have done everything they possibly could but could be denied access to justice because of an administrative delay in the District
16 Irwin v Department of Corrections, above n 1, at [15].
Court. I consider the reasoning of Quilliam J in Arnott v Christoffersen to be directly applicable.17 In that case Quilliam J, noted:18
The real question in this case concerns the meaning which is to be given to the word "filed". On behalf of the appellant it is argued that this expression means something more than merely depositing at the office of the Court and ought to be regarded as the administrative act of entering the document in the Court records. For the respondent it is contended that presentation of the document alone is sufficient.
[36]Quilliam J was satisfied that the latter contention was correct, noting later:19
I am sure the legislature can never have intended that an informant who has completed everything required of him and which he is capable of doing by handing into the Court office a correctly completed notice of prosecution, is to see his efforts nullified by the Court staff failing to take the next step of entering the proceedings in the records. That is a matter over which the informant could have no control. The conclusion which I have reached is in conformity with the view expressed by Stout CJ in the case of Re Commercial Union Assurance Company (1899) 18 NZLR 585, when he observed that the filing of a document simply envisages depositing it in a Court office.
[37] I am unable to accept Mr White’s attempt to distinguish that case on the basis that the wording of the relevant statute was different and by the reference in a subsequent paragraph in the judgment to r 33 of the District Court Rules 1948 which appeared to draw a distinction between the tendering of a document and the filing of it.
[38] Quilliam J’s comment that perhaps the submissions which had been made for the appellant could have greater force if that rule applied was clearly obiter. It does not detract from the principle expressed above.
[39] In my judgment, the correct interpretation of s 26 on this point is that when a charging document is lodged with the District Court it is either rejected out of hand if not in proper form, in which case it is not filed, or it is accepted for filing by the Registrar (and processed), s 26(1)(a), or referred to a judge for a decision as to whether it is to be “accepted for filing” and if so accepted, is processed at that time (s 26(1)(b)).
17 Arnott v Christoffersen, above n 5.
18 At 29.
19 At 30.
However, for limitation purposes, the private prosecution is brought when the charging document is lodged (filed) initially with the Registry.
[40] For the above reasons I conclude that by lodging the charging documents with the Registry within the two year period Ms Irwin complied with s 148(a) of the HSWA and her proposed prosecution is within time.
Result
[41] Leave is granted to appeal. The appeal is granted. Ms Irwin’s private prosecution against Corrections is reinstated in the District Court.
[42] I note the Judge did not deal with the other grounds for discharge under s 147. Corrections are at liberty to pursue that application as it has not been dealt with or to file an amended application to deal with that specific aspect of the application.
Venning J
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