Jindal v District Court at Auckland
[2024] NZHC 1695
•26 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-002266
[2024] NZHC 1695
UNDER Judicial Review Procedure Act 2016 High Court Rules 2016
Criminal Procedure Act 2011BETWEEN
GAUTAM JINDAL
ApplicantAND
DISTRICT COURT AT AUCKLAND
Respondent
Hearing: 16 May 2024 Appearances:
Applicant in person
B McKenna counsel assisting
Judgment:
26 June 2024
JUDGMENT OF DOWNS J
This judgment was delivered by me on Wednesday, 26 June 2024 at 11 am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
B McKenna, Auckland. Copy to: Applicant.
JINDAL v DISTRICT COURT AT AUCKLAND [2024] NZHC 1695 [26 June 2024]
The case
[1] Judge B L Sellars KC held a privately laid perjury charge should not be accepted for filing. Gautam Jindal, who laid the charge, seeks judicial review of Judge Sellars’ decision. This judgment addresses Mr Jindal’s claim for judicial review.
Background
[2]The background is simple.
[3] Mr Jindal declined to pay Rice Craig, a law firm, $999.81 in fees. Rice Craig sued Mr Jindal for non-payment. Neville Woods, a partner of the firm, swore an affidavit in support of the firm’s claim. The claim went to trial. Mr Woods testified. In short, Mr Woods said he spoke to Mr Jindal by telephone on, or about, 13 February 2020, and during that call, told Mr Jindal he would be billed in accordance with Rice Craig’s usual terms. Mr Jindal testified that no such call occurred.
[4] On 11 November 2022, Judge D J McDonald upheld Rice Craig’s claim.1 The Judge concluded Mr Woods did call Mr Jindal on, or about, 13 February 2020. I call this the telephone call.
[5] On 19 April 2023, Mr Jindal filed a charge of perjury against Mr Woods in relation to the telephone call. Essentially, the charge alleged Mr Woods committed perjury when he said, on oath, the telephone call occurred. Mr Jindal filed information in support of the charge.
[6] On 1 May 2023, the District Court directed Mr Jindal to file formal statements in support of the charge. Mr Jindal replied that day, saying he had already done so. Mr Jindal re-sent the same information to the Court he had filed on 19 April 2023.
1 Rice Craig v Jindal [2022] NZDC 22625.
[7] On 4 May 2023, Judge Sellars held the charge should not be accepted for filing. The Judge held the information provided by Mr Jindal could not establish a prima facie case of perjury in relation to the telephone call.2
[8] The Judge addressed, for “completeness”, whether the prosecution was an abuse of process.3 The Judge held it was because it constituted “an attempt to relitigate the issue of the telephone call”.4
[9]On 24 September 2023, Mr Jindal filed this claim for judicial review.
[10] The District Court abides this Court’s decision. Ms McKenna was appointed to assist. I record my gratitude for that assistance.
Mr Jindal’s claim
[11] Mr Jindal’s statement of claim and submissions do not agree upon the grounds of review. I, therefore, address what I understand to be Mr Jindal’s three main grounds (of review) by these questions:
(a)Was there a breach of natural justice?
(b)Was the Judge’s approach incompatible with s 50 of the Evidence Act 2006?
(c)Did the Judge err in law in relation to evidential sufficiency?
[12] The first two questions concern the Judge’s approach in concluding the prosecution was an abuse of process. As will be obvious, the last concerns the Judge’s conclusion a prima facie case of perjury could not be established. Behind all three lies s 26 of the Criminal Procedure Act 2011, about which something below.
2 Jindal v Woods DC Auckland CRI-2023-004-003087, 4 May 2023 [Minute] at [13].
3 At [17].
4 At [19].
Section 26
[13]Section 26 reads:
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
(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.
[14] The leading decision in relation to s 26 remains S (SC 58/2019) v Vector Ltd.5 Vector was largely directed at evidential sufficiency under s 26(3)(a), rather than abuse of process under s 26(3)(b). That said, all members of the Supreme Court agreed s 26 was “intended to operate as an initial or preliminary screening mechanism of proposed private prosecutions”.6 O’Regan and Ellen France JJ thought it “a straightforward
5 S (SC 58/2019) v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1.
6 At [2].
mechanism to ensure that obviously unmeritorious or abusive private prosecutions do not get underway”.7 Their Honours added:8
Second, the decision whether to accept the charging document for filing under s 26(3)(a) will ordinarily be confined to a consideration of the material filed by the proposed private prosecutor. We would not, however, constrain the court in an exceptional case from considering a broader range of material to determine evidential sufficiency, including evidence and/or submissions from the proposed defendant, where the court sees that as necessary. The court is not limited in the same way in the material that can be considered in determining whether the proposed prosecution is an abuse of process.
[15]I come to the significance of the italicised sentence shortly.
Was there a breach of natural justice?
[16]A little more background is needed here.
[17] As observed, Mr Jindal filed and re-filed information in support of the charge, including a two-page summary of the alleged facts in connection with the charge, and the body of Mr Woods’ affidavit before Judge McDonald. However, Mr Jindal did not file Judge McDonald’s decision.
[18] Judge Sellars relied on Judge McDonald’s decision in concluding the prosecution was an abuse of process. Mr Jindal contends Judge Sellars breached natural justice in doing so, as she obtained the decision without reference to him, and did not invite submissions on that decision before relying upon it. Mr Jindal contends Prescott v District Court at North Shore is apposite.9
[19] In Prescott, a District Court Judge concluded the evidence could not sustain the charge. The Judge did not call for formal statements and placed weight on another Judge’s assessment of the evidence (in a related setting). Davison J held the District Court had erred in not calling for formal statements (in accordance with s 26(1)(b) and (2)) and relying on material beyond formal statements when determining evidential sufficiency.
7 S (SC 58/2019) v Vector Ltd, above n 5, at [89].
8 At [90] (emphasis added).
9 Prescott v District Court at North Shore [2017] NZHC 2828, [2018] NZAR 307.
[20] I accept Ms McKenna’s submission Prescott is distinguishable. The reason is evident: Prescott concerns applicable process when determining evidential sufficiency; it says nothing about process when determining whether a prosecution is an abuse.
[21] This conclusion, however, leaves open Mr Jindal’s complaint: that the Judge breached natural justice by obtaining the decision without reference to him, and by not inviting submissions on the decision before relying upon it. Four points are important.
[22] First, “the requirements of … natural justice are flexible” and heavily informed by context.10
[23] Second, as to context, s 26 provides a preliminary screening mechanism of proposed private prosecutions. It is, again, “a straightforward mechanism to ensure that obviously unmeritorious or abusive private prosecutions do not get underway”.11
[24] Third, litigation involving a “collateral attack” comprises a well-recognised instance of an abuse of process.12 A collateral attack involves a challenge to an order or ruling through proceedings which are not directed to rescinding, varying, or setting aside that order, hence the phrase collateral attack. The leading case is Siemer v Solicitor-General.13 Mr Siemer was found in contempt of Court for breaching a suppression order. The order had been made in a criminal case to which Mr Siemer was not a party. The Supreme Court affirmed the impermissibility of collateral attacks “in order that the authority of the courts and the rule of law are maintained”.14
[25] Fourth, as the earlier, italicised passage from Vector makes clear, a Judge exercising her or his screening function under s 26 in relation to a potentially abusive prosecution has a discretion to consider material beyond that offered by the prosecutor.
10 Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132.
11 S (SC 58/2019) v Vector Ltd, above n 5, at [89].
12 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.
13 Siemer v Solicitor-General [2013] NZSC 68, [2013] 3 NZLR 441.
14 At [222].
[26] Taken together, these points reveal Judge Sellars did not err by obtaining Judge McDonald’s decision, or by not calling for Mr Jindal’s submission on that decision, before concluding the prosecution constituted a presumably obvious instance of an abuse of process. Judge McDonald’s decision had unquestionable relevance to whether the prosecution was abusive, and in obtaining and referring to that decision, Judge Sellars did no more than exercise the “straightforward” screening function contemplated by s 26.
[27] For completeness, a recent decision of the Court of Appeal touches upon this conclusion, at least obliquely. Gary Mann filed a charge against David Wilson alleging theft in a special relationship. The charge followed a civil dispute between the men, in which Mr Mann was unsuccessful in obtaining a High Court injunction against Mr Wilson. Gywn J held the prosecution was an abuse of process.15 The Court of Appeal disagreed because the injunction decision of the High Court was an interim decision only.16 However, the Court of Appeal said it would have been “preferable and prudent” for Mr Mann to have provided the injunction decision when filing the charge.17 Again, Mr Jindal did not file Judge McDonald’s decision with the charge or when he re-filed information with the District Court, even though the charge arose from evidence before that Judge.
[28] Mr Jindal also argued that by considering Judge McDonald’s decision but not other additional information, including the entire transcript of the evidence from the civil trial, Judge Sellars engaged in “cherry picking”.
[29] I disagree. Again, Judge McDonald’s decision had unquestionable relevance to whether the prosecution was abusive. Moreover, Mr Jindal did not explain how the other additional information had relevance to that determination, or why it should be received in this Court, beyond reference, in the abstract, to the interests of justice. It follows Mr Jindal’s application to adduce additional information, advanced orally at the hearing, is also declined.
15 Wilson v Mann [2022] NZHC 44 at [145].
16 Mann v Wilson [2024] NZCA 181 at [64]–[65].
17 At [62].
Was the Judge’s approach incompatible with s 50 of the Evidence Act 2006?
[30]Section 50 provides:
50 Civil judgment as evidence in civil or criminal proceedings
(1)Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.
(1A)Evidence of a decision or a finding of fact by a tribunal is not admissible in any proceeding to prove the existence of a fact that was in issue in the matter before the tribunal.
(2)This section does not affect the operation of—
(a) a judgment in rem; or
(b) the law relating to res judicata or issue estoppel; or
(c) the law relating to an action on, or the enforcement of, a judgment.
[31] Mr Jindal contended s 50 precluded Judge Sellars from placing any weight on Judge McDonald’s decision. Mr Jindal said because the section precludes a factual finding in a civil case being admissible in a criminal case to prove the same fact, Judge McDonald’s determination about the telephone call was inadmissible in the criminal jurisdiction, hence Judge Sellars was not permitted to rely on, or perhaps even refer to, Judge McDonald’s determination.
[32] This argument misunderstands s 50, and what Judge Sellars did. The best way to explain s 50 is with an example. Imagine a Judge in a civil proceeding concluded a witness told a significant lie in testifying she had received $1,000 from a friend. Now imagine the Police decide to prosecute the witness for perjury, and to adduce, as part of their case, the Judge’s decision the witness had lied about receiving $1,000 from a friend, as proof the witness told that lie.
[33] Section 50(1) would render this evidence inadmissible. The Police would be precluded from adducing the Judge’s decision as evidence the witness had lied about receiving $1,000 from a friend. By this example, the terms of s 50(1) speak for themselves as to why the evidence is inadmissible. The core policy rationale is also
obvious: determination of guilt in criminal courts should be based on primary evidence, not opinion about guilt.
[34] Nothing comparable happened here. Judge Sellars did not rely on Judge McDonald’s factual finding about the telephone call to reach any conclusion about whether the telephone call had been made. Rather, Judge Sellars recognised another Judge—Judge McDonald—had made a factual finding about the telephone call, and had regard to the fact of that determination in concluding the same subject matter underlay the proposed prosecution. Expressed yet another way, Judge Sellars did no more than utilise Judge McDonald’s decision when exercising the screening function required by s 26 of the Criminal Procedure Act.
Did the Judge err in law in relation to evidential sufficiency?
[35] Mr Jindal contends the information he filed in the District Court to support the charge was sufficient to raise a prima facie case of perjury, hence Judge Sellars was wrong to conclude otherwise.
[36] The applicable legal test is not contentious. In Vector, all members of the Supreme Court held the threshold for determining evidential sufficiency “is whether, on a prima facie basis, the evidence is sufficient to prove the elements of the charge to the required standard”.18
[37] The information Mr Jindal filed with the charge included telephone data. However, Mr Jindal did not file information to explain that data even though its import is far from self-evident.19
[38] A related point arises. The telephone data appears to concern a mobile phone of, or in relation to, Mr Jindal. Mr Jindal’s covering letter to the Court implied he had two telephone numbers, the mobile phone apparently in the telephone data, and a second number, a landline. The call data does not appear to extend to that landline.
18 S (SC 58/2019) v Vector Ltd, above n 5, at [6].
19 Mr Jindal also filed what was described as a notice to admit facts, and email exchanges with Rice Craig.
[39] When I raised this issue with Mr Jindal and said the information he had filed with the District Court did not address an evident, reasonable possibility the telephone call was made to or from the landline, Mr Jindal acknowledged this was “a fair point”. However, Mr Jindal then said he did not have the landline at the time of the telephone call. I record the obvious: this piece of information was not before the District Court.
[40] Yet another difficulty arises. The information filed in support of the charge did not address the mental ingredients of the offence of perjury. These ingredients are, of course, typically established by implication. The point here is that the information filed in support of the charge did not extend to evidence capable of permitting the conclusion that Mr Woods knowingly and intentionally misled the Court in saying the telephone call occurred. Mistaken but honest testimony is not perjury.
[41] It follows Judge Sellars did not err in concluding a prima facie case had not been identified. As will be apparent, that is my view too.
Other matters
[42] Mr Jindal also argued Judge Sellars erred by not addressing public interest considerations, including the proposition “law practitioners be held accountable to the highest standards”. The (short) answer to this contention is that public interest considerations are irrelevant in the determination of whether the evidence is sufficient to establish a prima facie case.
[43] Mr Jindal also contended the hearing before Judge McDonald was “a charade”. This claim—for judicial review of Judge Sellars’ decision disallowing the charge to be filed—is not the correct forum for a submission of this nature, even putting aside Mr Jindal’s emotive language.
[44] One final matter. Mr Jindal never addressed why he should be allowed to bring a judicial review claim. Judicial review must be exercised sparingly in criminal cases.20 Otherwise, judicial review risks undermining the comprehensive regime provided by the Criminal Procedure Act.21 Relatedly, as the Court of Appeal explained
20 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.
21 DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137 at [31]–[32].
in the case mentioned at [27], “the supervisory function in this area is a circumscribed one”.22
Result
[45]Mr Jindal’s claim for judicial review is dismissed.
[46] I make no order in relation to costs (given the District Court abided this Court’s decision).
……………………………..
Downs J
22 Mann v Wilson, above n 17, at [71].
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