K v District Court at North Shore
[2018] NZHC 2503
•28 September 2018
ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF APPLICANT AND SECOND RESPONDENT PERMANENTLY – SUPPRESSION ORDERS EXIST AS CONTAINED IN PARAGRAPH [29]-[30] OF THIS JUDGMENT. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-3065
[2018] NZHC 2503
BETWEEN K
Applicant
AND
AND AND
THE DISTRICT COURT AT NORTH SHORE
First Respondent
A
Second RespondentNEW ZEALAND POLICE
Third Respondent
Hearing: 17 September 2018 Appearances:
The applicant in person
Z R Johnston and A P Lawson for Third Respondent
Judgment:
28 September 2018
Further submissions on name suppression
completed:
Anonymised judgment reissued:
11 October 2018
6 November 2018
JUDGMENT OF POWELL J
This judgment was delivered by me on 6 November 2018 at 3 pm pursuant to R 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
K v THE DISTRICT COURT AT NORTH SHORE [2018] NZHC 2503 [28 September 2018]
[1] On 21 December 2017 the applicant, filed judicial review proceedings in the High Court at Auckland (“the 2017 proceedings”). The 2017 proceedings challenged a decision of the District Court at North Shore, specifically Judge L I Hinton’s decision to grant the second respondent a discharge without conviction for the assault of one of the applicant’s daughters.1
[2] The 2017 proceedings were not the applicant’s first challenge to Judge Hinton’s sentencing decision by way of judicial review. Substantially identical proceedings were in fact filed on 26 June 2012 (“the 2012 proceedings”). Those proceedings were however referred to Dobson J who, although considering the applicant’s claim was justiciable, concluded that the applicant did not have standing to bring the proceedings. In particular Dobson J issued a minute in the following terms:2
The major hurdle which [the applicant] faces in bringing these proceedings is that he was not a party to the proceedings in the District Court. While The applicant is, for the purposes of the Sentencing and Victims’ Rights Acts, a victim of the offending and has certain rights as a consequence,3 our justice system eschews the involvement of the victim as a party to the prosecution of an offender. In our system the Crown, representing the victim and the community more generally, and the offender are the parties to a criminal proceeding.
This case can also be distinguished from those cases where third party media organisations have applied for judicial review of District Court decisions regarding suppression.4 The applicant media organisations in those instances have standing because they apply for review of District Court decisions in which they were the unsuccessful applicant. They have standing to apply to the District Court in the first place because of the long-standing recognition of the legitimate public interest in the media facilitating the open reporting of court proceedings.5
In these circumstances, there is no prospect of [the applicant] establishing his standing to bring this review. It is clear that he is emotionally involved in the case at hand, but his legal rights have not been affected by the decision made. Furthermore, if there is a public interest that needs protecting in this case, it would be for the Attorney-General, as representative both of the victims and the community at large, to apply for review.
1 The second respondent having pleaded guilty to this charge.
2 K v District Court at North Shore HC Auckland CIV-2012-404-3647, 29 June 2012, at [8]-[11].
3 See: Sentencing Act 2002, s 4; Victims’ Rights Act 2002, s 4, both of which provide that a victim includes the parent or guardian of a child against whom an offence is committed by another person.
4 See for example: Wilson & Horton Ltd v District Court at Otahuhu (2000) 5 HRNZ 773 (HC).
5 At [28].
In circumstances where there is no prospect of a claimant establishing standing, or indeed of the subject matter of [the applicant’s] complaint being justiciable, the proceedings are futile and ought not to proceed. The papers are to be returned to [the applicant], together with a refund of any filing fee paid by him.
[3] Within a short time of the applicant’s 2017 proceedings having been filed the issue of standing was raised on behalf of the Police who had in the meantime been added as the third respondents. Arrangements were then made to have the issue of standing determined as a preliminary matter on 6 June 2018. In the event the hearing was adjourned because the second respondent was not aware that the standing issue would be addressed. Adjourning the hearing on standing Brewer J also called for submissions from the applicant and the Police as to whether the applicant’s 2017 proceedings were an abuse of process given the conclusions reached by Dobson J on the 2012 proceedings.
[4] As a result the 2017 proceedings were adjourned to the present hearing, for the issues of standing and abuse of process to be determined. On behalf of the Police Ms Johnston submitted that the applicant did not have standing to bring the 2017 proceedings and that in any event the proceeding was an abuse of process; given Dobson J’s conclusions, the fact that the applicant had the opportunity to appeal Dobson J’s minute but did not proceed with the appeal, and the fact that six years have elapsed since the 2012 proceedings were dismissed. In response the applicant ultimately accepted that while he did not have personal standing it was in the public interest that the 2017 proceedings proceed. He also submitted that Dobson J did not in fact make any binding determination on standing and therefore it could not be an abuse of process for the 2017 proceedings to now proceed.
[5] In the course of the hearing before me I raised with both parties whether or not Dobson J’s minute substantively determined the issue of the applicant’s standing giving rise to issue estoppel. The applicant did not accept that Dobson J’s minute determined the issue of standing for the reasons set out above, while Ms Johnston was somewhat equivocal as to whether Dobson J’s judgment was determinative of the standing issue and reiterated her earlier submissions that each should be considered more broadly as part of whether the 2017 proceedings were an abuse of process.
[6] In the light of the submissions of the parties the issues that require determination are:
(a)whether Dobson J’s minute is determinative on the issue of the applicant’s standing to bring the 2017 proceedings;
(b)in the event Dobson J’s minute is not determinative whether the applicant has standing to bring a 2017 proceedings; and
(c)whether any issue of abuse of process otherwise arises.
Discussion – Issue Estoppel
[7] The Court of Appeal recently reiterated the principles applying in issue estoppel in Van Heeren v Kidd.6 Cooper J, giving judgment for the Court, said at the beginning of the judgment, with reference to Talyancich v Index Developments Ltd:7
An issue estoppel arises where a judgment has determined an issue as an essential and fundamental step in the logic of the judgment and without which it could not stand. The issue so determined may not be contested in subsequent litigation between the same parties. The rule rests on two foundations:
(a)the interest of the community in the determination of disputes and the finality and conclusiveness of judicial decisions; and
(b)the protection of individuals from repeated suits for the same cause.
[8]In Talyancich the Court had noted:8
Issue estoppel arises where an earlier decision is relied upon, not as determining the existence or non-existence of the cause of action, but, as determining, as an essential and fundamental step in the logic of the judgment, without which it could not stand, some lesser issue which is necessary to establish (or demolish) the cause of action set up in the later proceedings … The classic definition is that of Diplock LJ in Thoday v Thoday [1964] P 181 at p 198:
“The second species, which I will call 'issue estoppel', is an extension of the same rule of public policy. There are many causes of action which can only be established by proving that two or more different conditions are fulfilled. Such causes of action involve as many separate
6 Van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141.
7 At [1], citing Talyancich v Index Development Ltd [1992] 3 NZLR 28 (CA) at 37.
8 At 37.
issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was.”
[9] The Court emphasised that an issue estoppel can only be founded on fundamental determinations:9
As is pointed out by Spencer Bower & Turner at p 179, para 210, an issue estoppel can only be founded on determinations which are fundamental to the decision and without which it cannot stand. Other determinations cannot support an issue estoppel however definite the language in which they are expressed. What is emphasised in the judgments cited is that for the decision on any matter to give rise to an issue estoppel that matter must be one which it was necessary to decide and which was actually decided.
[10] The availability of appeal is relevant in this regard; if there can be no effective appeal against a particular determination, it is impossible to regard it as fundamental to the judgment.10
[11] Applying these principles to the present case it is clear Dobson J determined that not only did the applicant have no private standing to bring a judicial review application against Judge Hinton’s decision, the public interest did not warrant him bringing the proceedings either:11
[I]f there is a public interest that needs protecting in this case, it would be for the Attorney General, as representative both of the victims and the community at large, to apply for a review.
[12] While as Ms Johnston noted the minute was issued without the benefit of argument it was able to be challenged on appeal, an avenue which the applicant in fact exercised. Although the Court of Appeal registry questioned whether the appeal could be brought against the Dobson J minute, Wild J by minute accepted that an order had
9 At 38.
10 At 38.
11 K v District Court at North Shore, above n 2, at [10].
been made by Dobson J that was capable of being appealed.12 Following that determination the applicant abandoned the appeal.
[13] In the circumstances I am satisfied that Dobson J’s minute determined the applicant’s standing to bring judicial review proceedings against Judge Hinton’s decision and that determination remains binding on the parties. Given this position the applicant is estopped from bringing the 2017 proceedings.
Decision – Standing Generally
[14] Even if I am wrong in concluding that Dobson J’s minute creates an estoppel I am nonetheless satisfied that Dobson J was correct in concluding the applicant does not have standing to judicially review Judge Hinton’s decision.
[15] Although the applicant, as the father of the victim of the assault, was also technically a victim, that did not make him a party to the District Court proceedings and in particular did not give him standing to appeal Judge Hinton’s decision. Ultimately the applicant did not dispute that he did not have personal standing to judicially review Judge Hinton’s decision and instead relied upon the public importance of the issue so as to give him standing to bring the 2017 proceedings. On this issue it was the applicant’s submission that Judge Hinton’s decision was clearly wrong both because he had misapplied the law and because he had failed to consider relevant information. The applicant submitted that as a result the 2017 proceedings were necessary in order to uphold the rule of law.
[16] Looking at Judge Hinton’s decision the applicant is correct that His Honour did not restate the legal test at the point at which he drew his conclusion that the second respondent was entitled to a discharge without conviction. This does not however necessarily mean the decision was wrong. Likewise, it is clear from the District Court record that the information the applicant alleged Judge Hinton had not taken into account was in fact not put before him and in those circumstances it is therefore difficult to see how this could gave rise to a substantive ground for review.
12 K v District Court at North Shore Minute and Direction to Registry of Wild J CA410/2012, 11 July 2012.
[17] More fundamentally, as discussed with the applicant at the hearing, the fact that a judge gets a decision wrong in a particular case does not threaten the rule of law. The rule of law is indeed premised on the basis that judges will get decisions wrong, which is why rights of appeal are provided for parties that are affected by those decisions. In this case neither party sought to appeal Judge Hinton’s decision. Moreover, if the possibility that a judicial decision is incorrect is sufficient to give rise to public interest standing for any person aggrieved by a particular decision to bring judicial review proceedings, effectively any decision could be challenged in this way.
[18] As Ms Johnston submitted the circumstances a person may be permitted to pursue a judicial review claim are much more restricted than that:13
A party who has a personal interest at stake, or whose personal rights and interests are affected, has standing to bring a proceeding. If not, he or she may be permitted to pursue a claim if that is warranted by the public interest in the administration of justice and the vindication of the rule of law. The apparent merits of the case are relevant to that assessment, as is whether a wider issue of general importance is raised. Standing is not automatic and decisions are made on the totality of facts, with a generous approach prevailing.
Personal standing is concerned with whether a litigant’s personal rights and interests are affected by the decision under challenge. If they are, sufficient standing will exist to apply for judicial review of the decision. Public interest standing is more concerned with whether the decision under challenge is or may be unlawful. If so, standing is also likely to exist.
[19] Ms Johnston also noted the public interest threshold is particularly high when judicial review is sought in criminal proceedings. Consistent with Dobson J’s comments, as a general rule participation in criminal processes is limited to the parties to the prosecution, being the prosecutor and defendant, except as expressly allowed by statute or common law.14 The Court’s reluctance to allow judicial review in the criminal jurisdiction was explained by Clark J as follows:15
(a)Judicial review of a District Court decision under s 147 of the Criminal Procedure Act is only appropriate in rare cases where, by reason of the nature of the error, the intervention of the High Court is imperative.
13 Smith v Attorney-General [2017] NZHC 1647, [2017] NZAR 1094 at [27]-[28].
14 Ministry for Primary Industries v Sajo Oyang Corp [2014] NZCA 46, [2014] 2 NZLR 673 at [45].
15 Angus v District Court [2017] NZHC 2879 at [23] (footnotes omitted).
(b)Even if an identifiable question of law, beyond sufficiency of evidence, is said to arise the power to review must be sparingly exercised and truly exceptional circumstances will be required.
(c)A remedy by way of judicial review is not to be made available where an alternative remedy exists. The Crimes Act 1961 contains a comprehensive statutory procedure erected for the just and expeditious disposal of indictable trials as does the Criminal Procedure Act 2011.
(d)Where Parliament has provided by statute appeal procedures it will only be in rare and exceptional circumstances that the courts will allow the collateral process of judicial review to be used to attack an appealable decision.
(e)The policy factors weighing against disruption, delay and fragmentation of the criminal process through recourse to the High Court will not preclude judicial review of an error that has the potential to lead to serious injustice that cannot be corrected on appeal.
[20] In focusing primarily on the merits of the District Court case the applicant’s proceedings are not dissimilar to the situation in McVicar v New Zealand Parole Board where the trustees of the Sensible Sentencing Trust applied to judicially review a decision of the New Zealand Parole Board to grant parole to a particular prisoner. The Sensible Sentencing Trust also applied for interim orders requiring the prisoner to remain in prison while the application was heard.
[21] In determining whether to grant the interim orders, Ellis J found that the trustees lacked both personal and public interest standing. Her Honour determined the Parole Act 2002 carefully prescribed victims’ participation rights in the parole process, and that the Sensible Sentencing Trust had no status, role or voice in the parole process independent from the particular victims of the offender being considered for parole. Her Honour concluded granting standing to people in the applicant’s position to judicially review the Parole Board’s decision would undermine this statutory scheme.16
[22]With respect to personal standing Ellis J stated:17
Even if the Trust had had some involvement in the statutory process (which it did not) it could only have been on behalf of particular [victims]. In the absence of some official status or mandate it is difficult to see why the Trust
16 McVicar v New Zealand Parole Board [2015] NZHC 2153, (2015) 23 PRNZ 21 at [48].
17 At [49].
has any more interest (in the relevant, narrow, sense) in the grant of parole to [the prisoner] than any other member of the public.
[23] With respect to public interest standing, Her Honour determined that the public interest was not engaged in a relevant and meaningful sense in parole decisions about specific prisoners. Further:18
… the Trust’s application for judicial review does not raise any question of law of that broad or publicly relevant kind. Rather, it invites the High Court to reconsider the Parole Board’s decision on the evidential merits, and in particular, its view the weight that could be placed on the psychological report obtained by [the prisoner] and the correctness of the necessarily predictive assessment of risk that the Board then made.
[24] That final comment is apposite to the present case: The applicant’s 2017 proceedings ultimately seek only to substantively revisit a decision of the District Court to which the applicant was not a party. Not only was the District Court decision of comparatively minor significance, it took place in an area of the law where the principles are well settled. There is no need for this Court to add further guidance as to how s 107 of the Sentencing Act 2002 should be applied.
[25] The fact that the 2017 proceedings have been brought six years after the District Court decision was made is a further factor weighing against the grant of public interest standing, particularly as both parties (the Police and the second respondent) have proceeded on the basis the decision of Judge Hinton was final. Finally as Dobson J also noted, “if there is a public interest that needs protecting in this case, it would be for the Attorney-General as representative both of the victims in the community at large, to apply for review”. In this regard evidence filed by the applicant makes it clear he had invited both the Hon Christopher Finlayson QC (the Attorney-General up until November 2017) and the Hon David Parker (the present Attorney-General) to either judicially review the District Court decision or to allow the applicant to proceed. Neither took up the applicant’s invitation, and in the context of this case that is also significant.
18 At [47] (footnotes omitted).
[26] Taken together I am quite satisfied that in addition to not having personal standing the applicant does not have the public interest standing to bring the 2017 proceedings and as a result the proceedings must be struck out.
Decision
[27] The proceedings are struck out in accordance with r 15.1 of the High Court Rules 2016.
[28] The third respondent is entitled to costs on a 2B basis. In the event that agreement cannot be reached I will determine the issue following the filing of memoranda.
Suppression
[29] As a result of the conclusion I have reached on the applicant’s standing to bring these proceedings and the length of time that passed since Judge Hinton issued his decision, as well as the fact the second respondent has taken no steps in this proceeding, I conclude it would be an abuse of process for the second defendant to be named in this judgment. I consider these factors outweigh the presumption of open justice, and order that the identity of the second respondent is to be suppressed in this judgment.
[30] More fundamentally, as the victim of the second respondent’s offending was a child at the time and entitled to automatic suppression,19 after calling for further submissions from the parties on the issue I am satisfied that it is necessary to suppress both the applicant; and the second respondent’s names to avoid her identification and make orders accordingly.20
Powell J
19 Criminal Procedure Act 2011, s 204.
20 Sections 202(2)(d) and 200(2)(f) respectively.
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