Lincoln v Attorney-General - [2023] NZHC 3822

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-121

[2023] NZHC 3822

UNDER The Judicial Review Procedure Act 2016

IN THE MATTER

of an application for review of an administrative procedure and official decision.

BETWEEN

RICHARD LINCOLN

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

GEOFFREY BARCLAY CAVELL

Second Respondent

Hearing: 18 October 2023 (via AVL)

Appearances:

Applicant in Person

Z R Hamill & O Kiel for First Respondent No appearance for Second Respondent

Judgment:

20 December 2023

JUDGMENT OF McQUEEN J

[1] Mr Richard Lincoln seeks judicial review of two decisions made by the New Zealand Police (the Police), in respect of Mr Geoffrey Cavell, a person against whom Mr Lincoln has a civil restraining order. Mr Lincoln is self-represented in this proceeding. The Attorney-General appears on behalf of the Police in opposition.1

1 Mr Cavell has maintained a watching brief but did not appear at the hearing. As noted by Ellis J in her Minute dated 27 July 2023, it can be reasonably be anticipated that his position and the position of the Attorney-General will coincide and so his interests will be protected by the Attorney-General’s participation in the matter.

LINCOLN v THE ATTORNEY-GENERAL [2023] NZHC 3822 [20 December 2023]

[2] Mr Lincoln alleges that two formal warnings (the formal warnings) issued by the Police to Mr Cavell were unlawful. First, he says they constituted an unlawful bargain not to prosecute Mr Cavell on each occasion. Second, he says that they were given in breach of his natural justice rights pursuant to s 27 of the New Zealand Bill of Rights Act 1990 (the NZBORA). Mr Lincoln seeks declarations to that effect, an order setting aside the formal warnings, and costs.

[3] The Attorney-General says that Mr Lincoln’s application for judicial review cannot succeed because it is moot, as the formal warnings have already been revoked by the Police owing to deficiencies distinct from those claimed by Mr Lincoln. The Attorney-General also says that, in any event, the warnings did not constitute unlawful bargains to stifle prosecution, nor did they engage Mr Lincoln’s natural justice rights.

[4] For the reasons below, I consider that Mr Lincoln’s application for review should be dismissed.

Background

[5] There is a history between Mr Lincoln and Mr Cavell. This is in part apparent from a District Court decision provided by Mr Lincoln, which records that Mr Cavell pleaded guilty to two breaches of the Harassment Act 1997.2 A restraining order was made against Mr Cavell on 3 December 2021, to expire on 3 December 2023 unless it was extended prior to that date. I am not familiar with the details of the history and such familiarity is not necessary for me to deal with the present application.

Incidents leading to Police warnings given to Mr Cavell which were later revoked

[6] The two incidents that led to the issuing of the formal warnings against Mr Cavell are as follows. First, on 15 June 2020,…

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: [2023] NZHC 3822
Decision Date: 20 December 2023

CaseChat Overview and Summary

Richard Lincoln sought judicial review of two formal warnings issued by the New Zealand Police to Geoffrey Cavell, a person against whom Lincoln has a civil restraining order. Lincoln argued that the warnings were unlawful, constituting an unlawful bargain not to prosecute and a breach of his natural justice rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The Attorney-General opposed the application on the basis that the formal warnings had been revoked and the application was moot. The court found that while the application was not entirely moot, Lincoln's claims were without merit. The warnings were unlawful, not because they constituted an unlawful bargain not to prosecute, but because they were issued without Mr Cavell's admission of the offending or his consent, thereby breaching his right to natural justice. However, the court concluded that there was no obligation on the Police to consult with Lincoln before deciding not to prosecute Cavell. Accordingly, Lincoln's application for judicial review was dismissed, and the Attorney-General was entitled to costs.

Orders