Lincoln v Attorney-General - [2025] NZSC 5

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 116/2024
[2025] NZSC 5

BETWEEN	RICHARD LINCOLN Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	Ellen France, Williams and Kós JJ
Counsel:	Applicant in person Z R Hamill and O Kiel for Respondent
Judgment:	28 February 2025

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

B There is no order as to costs.

____________________________________________________________________

REASONS

Introduction

Mr Lincoln made two complaints to the police in 2020 and 2022.
[1]Lincoln v Cavell [2022] NZDC 6362.
The complaints related to a Mr Cavell who Mr Lincoln said had assaulted him and breached a restraining order. The police did not prosecute Mr Cavell but instead issued formal warnings. Mr Lincoln subsequently successfully brought private prosecutions against Mr Cavell for two breaches of the restraining order.[1]
Mr Lincoln applied for judicial review of the formal warnings. The warnings were in fact withdrawn at an early stage in the light of Police instructions on the issuing of formal written warnings, and the decision of the High Court in another case, S v Commissioner of Police.[2] That decision dealt with the legal requirements for formal warnings. Relevantly, the High Court said that a warning had to be supported by a clear admission of the offending.[3] The Police instructions on formal warnings, released in July 2022, are recorded in the Police Manual and require, among other things, that the offender must provide informed consent to participate in the warning process.
[2]S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392.
[3]See at [96].
Despite withdrawal, Mr Lincoln pursued the judicial review proceedings.
He was unsuccessful in the High Court.[4] The High Court subsequently awarded costs against Mr Lincoln.[5] Mr Lincoln appealed unsuccessfully to the Court of Appeal from the decision declining judicial review and from the award of costs against him.[6] Mr Lincoln now seeks leave to appeal from that decision. He says that the issue is one of public importance and a miscarriage of justice will otherwise occur.[7]

The proposed appeal

[4]Lincoln v Attorney‑General [2023] NZHC 3822 (McQueen J).

[5]Lincoln v Attorney‑General [2024] NZHC 326. (McQueen J)

[6]Lincoln v Attorney‑General [2024] NZCA 515 (Collins, Whata and Grice JJ) [CA judgment].

[7]Senior Courts Act 2016, s 74(2)(a) and (b).

The proposed appeal would reprise arguments made in the Court of Appeal. Mr Lincoln maintains his argument that the warnings were an extra‑judicial punishment and were an unlawful bargain to stifle prosecution.
In dismissing the appeal, the Court of Appeal discussed the guidance relating to formal warnings. The Court said that in December 2021, following S v Commissioner of Police, Te Tari Ture o te Karauna | the Crown Law Office had released a supplement to the Solicitor‑General’s Prosecution Guidelines dealing with the use of warnings.[8] The supplementary material in the Guidelines discusses, amongst other matters, the purpose of a warning, the process to be followed and permissible content.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZSC 5
Decision Date: 28 February 2025

CaseChat Overview and Summary

In the Supreme Court of New Zealand, Richard Lincoln, the applicant, sought leave to appeal the decision of the Court of Appeal that dismissed his judicial review application concerning the formal warnings issued by the police. The warnings were issued after Lincoln made complaints that Mr Cavell had assaulted him and breached a restraining order. The Court of Appeal had found that the warnings were withdrawn and the issue was no longer live, as the police had since changed their policy on issuing such warnings. The Supreme Court was asked to consider whether the appeal had public importance or if there was a miscarriage of justice.

The legal issues before the Supreme Court included whether the formal warnings issued by the police were lawful and if they constituted an unlawful bargain to stifle prosecution. The Court also had to consider if the formal warnings were inherently unlawful and whether they absolved the warned person of criminal liability. Additionally, the Court needed to determine if costs should lie where they fall or if there was a question of general or public importance that warranted a different outcome.

The Supreme Court dismissed the application for leave to appeal, finding that the issues raised by Lincoln were no longer live as the police had since changed their policy on issuing warnings. The Court observed that the warnings were withdrawn, and Lincoln's rights and interests were put back to the position they would have been in but for the warnings. The Court also found that formal warnings do not absolve the warned person of criminal liability and that the prosecutorial discretion to commence or not a public prosecution is recognised by law. The Court did not find any appearance of a miscarriage of justice in the Court of Appeal's approach to the issue. Therefore, the application for leave to appeal was dismissed, and there is no order as to costs.

Orders