LP v Attorney-General

[2016] NZHC 169

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF THE PLAINTIFF OR OTHERS REFERRED TO IN THIS JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000272 [2016] NZHC 169

BETWEEN

LP

Plaintiff

AND

ATTORNEY-GENERAL Defendant

Hearing:	4 February 2016
Appearances:	Plaintiff in person N A Pointer for the Defendant
Judgment:	15 February 2016

JUDGMENT OF NATION J

[1]      The plaintiff in his statement of claim has made an application for judicial review.  He seeks orders requiring the Police to proceed with an investigation into certain allegations he made with certain directions as to the factual basis on which the investigation should continue and lines of enquiry they should pursue.

[2]      The plaintiff’s claim begins with these allegations:

1.        On 24th February, 2015, I phoned Central Police Crime Reporting line and reported a burglary of intellectual property entrance the previous night to my guest house room [address given].

2.        On 5th March I sent a further letter outlining my belief an assault, sexual assault or anal rape might have occurred on the night of the 23-24th February.  I based my allegation on considerable soreness in the spine upon awakening, and soreness in the anus area which lasted about 8 or 9 days.  I

LP v ATTORNEY-GENERAL [2016] NZHC 169 [15 February 2016]

alleged the assault must have involved use of an anaesthetic as I had no memory of the incident.

[3]      The Defendant, for the Police, has applied to strike out the statement of claim.

[4]      The application was initially argued as a hearing before Associate Judge Matthews on 12 October 2015.   The Associate Judge heard submissions from the plaintiff and from Ms Pointer, counsel for the defendant.  Before the Associate Judge had delivered his judgment, the plaintiff brought to the Court’s attention a passage in McGechan on Procedure which indicated there could be an issue as to whether an

Associate Judge had jurisdiction to strike out an application for judicial review.1

After receiving submissions, the Judge decided that the position as to his jurisdiction was uncertain but arguable both ways.  He decided the preferable course would be for the application to be heard anew before a Judge of the High Court.  The hearing proceeded accordingly on 4 February 2016.

[5]      Ms Pointer again presented submissions for the defendant.   The plaintiff presented submissions for himself.

Legal context

[6]      The strike out application is made pursuant to r 15.1 of the High Court Rules. Relevantly, r 15.1 provides:

15.1   Dismissing or staying all or part of proceeding

(1)   The court may strike out all or part of a pleading if it—

(a)   discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

…

(c)   is frivolous or vexatious; or

(d)   is otherwise an abuse of the process of the court.

1      Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at

[HR2.1.01].

[7]      The application  has  been  made on  the basis  that  the statement  of claim discloses no reasonably arguable cause of action, the pleadings are vexatious as they are speculative, untenable and without foundation and any possible cause of action arising out of the statement of claim cannot succeed as the law is settled.

[8]      The criteria for striking out are well established.  Of particular relevance in the context of this application are the principles: 2

(a)     pleaded facts, whether or not admitted, are assumed to be true.  This does not extend to pleaded allegations which are entirely speculative and without foundation;

(b)the cause of action or defence must be clearly untenable.   A claim should not be struck out “unless the Court can be certain that it cannot succeed”; and

(c)     the jurisdiction is to be exercised sparingly, and only in clear cases.

[9]      An application for judicial review will normally proceed on the basis of the documentary record of the process which has led to the decision or action which is the subject of the application for review, rather than additional evidence presented by way of affidavit.   In this instance, however, without objection, the defendant has filed affidavits from three members of the Police involved with the investigation and the plaintiff’s complaints at various times.  The evidence of the three Police officers is consistent with job sheets which have also been put before the Court.  The plaintiff also filed an affidavit.  In this affidavit, the plaintiff largely repeats allegations made in his statement of claim but in slightly more detail.

[10]     I have considered the application having regard to the allegations of fact made by the plaintiff in his statement of claim, not necessarily on the basis that such allegations had to be accepted as true because, as noted above, I am not required to

do that where it is clear the allegations were “speculative and without foundation”.

2      At [HR15.1.02] referring to the principles as summarised in A-G v Prince [1998] 1 NZLR 262 (CA) and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45, [2008] 3 NZLR 725 at [33].

The fact the plaintiff has made certain allegations in his statement of claim has been relevant  in  considering  whether  his  application  has  any  prospect  of  success  if allowed to continue.

Relevant legal principle

[11]   In opposing the application, the plaintiff submitted that the Police are accountable to the High Court as to the way they carry out their statutory duties.  He thus argues, through judicial review proceedings, it could be appropriate for the High Court to make orders requiring them to act in accordance with their statutory obligations where they have failed to do so.   In support of this proposition, the plaintiff relied on statements made by various Judges in the English Court of Appeal.

[12]     The judgment he referred to, R v Commissioner of Police of the Metropolis, ex parte Blackburn, arose out of proceedings in which a private citizen had brought proceedings to have the Court require the Police to prosecute potential gambling- related offences.3   Lord Denning MR stated:4

I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every chief constable, to enforce the law of the land.   He must take steps so to post his men that crimes may be detected; and that honest citizens may  go  about  their  affairs  in  peace.    He  must  decide  whether  or  not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought.   But in all these things he is not the servant of anyone, save of the law itself.  No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one.  Nor can any police authority tell him  so.    The  responsibility  for  law  enforcement  lies  on  him.    He  is answerable to the law and to the law alone.  That appears sufficiently from Fisher v Oldham Corporation, and Attorney-General for New South Wales v Perpetual Trustee Co. Ltd.

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere.     For  instance,  it  is  for  the  Commissioner  of  Police  of  the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought.  It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area.  No court can or should give him direction on such a matter.  He can also make policy decisions and give effect to them, as, for

3      R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 (EWCA), [1968] 1 All ER 763.

4      At 136 (citations omitted).

instance, was often done when prosecutions were not brought for attempted suicide.  But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere.  Suppose a chief constable were to issue a directive of his men that no person should be prosecuted for stealing any goods less than £100 in value.  I should have thought that the court could countermand it.  He would be failing in his duty to enforce the law.

[13]     In New Zealand, judgments of Lord Denning and others were considered by the High Court in Evers v Attorney-General, where the owners of a motel were attempting to obtain orders from the Court requiring the Police to act over their complaints concerning the anti-social activity of youths outside a motel.5   Chambers J adopted the statements made by Lord Denning.  He noted that Blackburn had been affirmed by the House of Lords and adopted the statement of principle as expressed by Lord Keith:6

By common law police officers owe to the general public a duty to enforce the criminal law:  see R v Metropolitan Police Comr, ex p Blackburn [1968]

1 All ER 763, [1968] 2 QB 118. That duty may be enforced by mandamus, at the instance of one having title to sue. But as that case shows, a chief officer of police has a wide discretion as to the manner in which the duty is

discharged.   It is for him to decide how available resources should be deployed,  whether  particular  lines  of  inquiry  should  or  should  not  be

followed and even whether or not certain crimes should be prosecuted.  It is only if his decision on such matters is such as no reasonable chief officer of

police would arrive at that someone with an interest to do so may be in a position to have recourse to judicial review.   So the common law, while laying on chief officers of police an obligation to enforce the law, makes no

specific requirements to the manner in which the obligation is to be discharged.  That is not the situation where there can readily be inferred an

intention of the common law to create a duty towards individual members of the public.

[14]     Chambers J applied the law as stated in these English judgments in striking out causes of action relied on in those proceedings.

[15]     The  well-established  statements  of  principle,  articulated  by the  courts  in

England, are also the law that must be followed by the courts in New Zealand when dealing with similar issues.

5      Evers v Attorney-General [2000] NZAR 372 (HC).

6      At [9], citing Hill v Chief Constable of West Yorkshire [1989] AL53, [1988] 2 All ER 238 (HL)

at 240.

[16]     Also relevant to this application is a statement of principle made by the New Zealand Court of Appeal in Attorney-General v McVeagh.7  They were dealing with a situation where a person, who had been detained as a special patient under part 4 of the Mental Health Act 1969, had brought proceedings claiming he had been wrongly detained in a mental hospital.  During the time he claimed to have been in wrongful detention,  he  had  unsuccessfully  applied  for  release  on  five  occasions  after

appropriate hearings where he had been represented by legal counsel. A Judge in the High Court had refused to strike out the proceedings.  The Judge had said there was a strong argument that the proceeding was an abuse of process but, in the exercise of his discretion, declined to strike out the proceedings stating that persons who labour under a sense of injustice should not be denied the opportunity to have their case put before the Court.

[17]     For the Court of Appeal, Hardie Boys J stated the Court did not accept the

persuasiveness of the Judge’s approach.  He said:8

We entirely understand the Judge’s reasoning.  Nonetheless, if the claim is doomed to failure, there can be no justification for allowing it to continue. The striking out jurisdiction is founded on the realisation that resources are finite and are not to be wasted.

[18]     It has also been said:9

Only in a clear case should an applicant be precluded from advancing the case in the normal way, employing the available interlocutory procedures. But, in what is demonstrated to be a clearly hopeless case, the sooner it is brought to an end the better.

[19]     In his statement of claim, the plaintiff refers to the Policing Act 2008.   He makes certain allegations which are not allegations of fact, “e.g. section 25 and schedule 2 do not include powers (to the police) of medical assessment, nor is there any  category  of  police  medical  officer”;  and  later,  “under  section  9  police  are required to investigate crime, maintain public safety and deal with law enforcement”. For  the  defendant,  counsel  submitted,  correctly,  that  it  was  unclear  from  the

pleadings in the statement of claim what cause of action the plaintiff was relying on.

7      Attorney-General v McVeagh [1995] 1 NZLR 558 (CA).

8      At 564.

9      Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1992] 2 NZLR

53 (CA) at 63, per Gault J.

Counsel, however, presents submissions on the basis that, with the facts as pleaded, the plaintiff was  presumably wanting to  argue  a public law claim  of failing to reasonably exercise statutory powers.

The factual basis for the plaintiff ’s claim

[20]     The plaintiff’s claim is based on his fundamental assertion that the Police have failed to investigate his complaint.   In submissions before me, he said that claim is made with regard to an alleged failure to investigate allegations of sexual indecencies  having been  performed  on  him,  rather than  his  initial  complaint  of unlawful entry to his room by someone for the purpose of looking to see what was on his computer.

[21]     In his statement of claim and in submissions before me, the plaintiff asserted that the Police failed to investigate the case because of a wrongful belief that the plaintiff suffered from mental illness, an assessment which he claims the constable was not qualified to make.  He claimed, as had been confirmed in a judgment of the High Court, he had been found in 2008 to be “not mentally disordered” and not to be subjected to a compulsory treatment order.   The plaintiff had appealed against a decision  of  a  District  Court  Judge  where  the  Judge  had  refused  to  make  a compulsory treatment order after hearing evidence and finding the plaintiff did not pose a serious danger to the health or safety of himself or others and it had not been established that the plaintiff’s ability to care for himself was seriously diminished.

[22]     In his statement of claim, the plaintiff asserted that, given that finding, the constable initially dealing with him had to proceed on the basis he was legally of sound mind and therefore had to “heed” his witness statement.  He further claimed “there are no grey areas where a policeman, or Judge or adjudicator or referee for that matter can hold an opinion as to a person’s mental state of his own right without the formal process of commitment”.

[23]     In submissions, although not referred to in his statement of claim, the plaintiff also claimed the Police had not investigated his allegations because of Police antipathy towards him due to prejudice based on personal and political views and

their unjustified belief that he had previously made false complaints and was a vexatious complainant.

[24]     The plaintiff submitted, in essence, the Police had a discriminatory attitude towards him, “never attempted any investigation and made no reasonable assessment of whether a crime could have been in question”.

[25]     The  submission  for  the  Attorney-General  is  that,  even  taking  certain allegations in the statement of claim at face value, it is quite clear that the essential allegation that the Police failed to investigate the plaintiff’s complaint is without foundation and that, on established and uncontested authority, there is no possibility that, as a result of these proceedings, the Court will make any order requiring the Police to further investigate the plaintiff’s complaints or to further investigate them in a particular way or on a particular basis.

The factual background

[26]     The plaintiff’s initial complaint about the sexual offending was made in a letter which the Police received on 12 March 2015.   It began by referring to a complaint he said he had made to the police reporting line on 24 February 2015 as to his having found, that morning, a door to his room unlocked after he had left it locked at night.  He said he had mentioned the purpose of the entry may have been the theft of intellectual property concerning research he was doing the night before. He referred to the fact that nothing had been stolen although there could have been theft of intellectual property.  He said he mentioned that he believed “the difficulty of entrance suggested a sophisticated level of surveillance” (the Police could not find any evidence of this complaint).

[27]     His complaint in his letter went on:

Further to the report, I would like to report that I have had soreness in my rectal area since the evening and night of the entrance.  I have not reported it sooner, on the one hand due to the expense of making a call to your line and the length of time getting through, on the other because there were no such initial symptoms when I awoke on the morning of the 24th.  This led me to believe for the first day or two that the symptoms might be psychosomatic. However, there were symptoms of considerable soreness and stiffness down my spinal cord that I noticed immediately upon awakening.

[28]     The plaintiff went on to speculate that the only way that these acts could have occurred without him waking up would have been through use of some sort of anaesthetic, which could partially explain his back symptoms.   In his letter, the plaintiff said that “persistent soreness up until today, ongoing persuades me that the reaction is unlikely to be psychosomatic”.   He then went on to mention possible suspects.  He suggested the manager of the place he was residing at because she had been “extremely pleasant” to him the morning after the alleged events.  He said this suggested she may have been involved in the unlocking of the door at least.   He mentioned other residents of the building and his visitors, although he said “I do not presume to point an obvious finger, and have no evidence of who the perpetrator was”.

[29]     In a later letter of complaint to the Independent Police Conduct Authority, (IPCA) received by them on 22 April 2015, the plaintiff referred to his complaint as being one of “either assault by woman or women, or/and rape by a man”.  With that letter of complaint, he provided a letter to him from his doctor who had examined him on 20 March 2015.   The letter said that, in answer to his questions, it was possible that anaesthetics could have an effect of numbing the back and making it stiff and sore for a few days following administration, and:

There is no obvious evidence of trauma or penetration to your anal region on examination apart from your subjective tenderness which might or might not be related to having previous trauma (it is not uncommon that patient can experience discomfort during such exam).

[30]     In his statement of claim, one of the plaintiff’s allegations was that, when he saw a doctor and had a swab taken from his anus, “the anus was very sore and appeared to have been lacerated with a knife”.

[31]     A report on the file from the relevant constable indicates that, when the Police received the plaintiff’s initial letter of complaint, the officer who received it considered that it was apparent from the content that the writer had some mental issues.  The letter was then given to a senior constable to check the validity of the complaint and also to check up on the plaintiff to see if he needed any assistance.  A senior constable, with 30 years’ experience, was then directed to visit the plaintiff.

[32]     The  constable  noted  information  on  the  Police  database  which,  to  him, showed an  extensive list of complaints made by the plaintiff to the Police and numerous follow up complaints to the IPCA.   He was told that the victim had a history of false complaints which gave a strong indication that the complainant may not be genuine.  The constable said that he was required to speak to the complainant, assess his claims and offer advice and support.   He says that he spoke with the manager of the accommodation complex and received advice that, while the plaintiff had made some unusual comments to her, the plaintiff kept to himself and caused no problems.

[33]     On 19 March 2015, the constable spoke to the plaintiff in his room.  He then formed the view that, while unqualified to give a diagnosis on mental health, it was soon very apparent that the plaintiff “saw things a little differently from the majority of the population”.  The constable says the plaintiff went over his complaint in some detail, that the plaintiff was quite coherent but, to the constable, the claims seemed implausible.  The constable said the plaintiff was unable to offer him any supporting evidence as to the alleged offending, was unable to advise him what had been stolen and said he had no memory of the sexual assault alleged.  He said the plaintiff went on to cite numerous other past complaints from Auckland and  made allegations towards staff and others including allegations that a cleaner had left poison in his teacup and tried to strangle him with a vacuum cleaner cord, and that his fridge was leaking poison into his room.  The constable said he was offered no proof for any of these allegations.  There was discussion as to the evidence which was available as to whether the door to his room was unlocked in the morning.  The plaintiff was asked whether he ever had mental health problems, questions which he declined to answer. The constable says he treated the plaintiff with empathy, explained the difficulty of further  investigation  of  the  complaint  and  encouraged  him  to  see  a  general practitioner about his general wellness.  He said the plaintiff took this as meaning that he should see a doctor for evidence of sexual violation.  The constable said that, if he did obtain any evidence from his doctor or if anything else came to light, the plaintiff should contact him.

[34]     This constable says he made a report of his findings on the electronic filing system, recorded that there was no evidence to support the claims and there was no

further avenue of enquiry.  He says he kept the file open for a further four weeks in case some evidence came to light but, after hearing nothing more, took steps with his supervisor to have the file closed.

[35]     The plaintiff made a complaint over the claimed lack of investigation in a letter to the IPCA of 3 April 2015.

[36]     A sergeant of Police was asked to reinvestigate the original allegations after the plaintiff had made his complaint to the IPCA.  This sergeant also had 30 years’ experience.  After two visits when the plaintiff had not been available, the sergeant visited and met with the plaintiff in his room at the hostel on 14 May 2015.   He discussed the alleged burglary of 23 February 2015 and, as a result of that, the plaintiff’s  belief  as  to  why  the  intelligence  service  could  be  trying  to  steal information from research he had done into Chinese tribes and languages.   The plaintiff said that, as a result of what he was doing, the American and German intelligence communities were very interested.  It appeared to the sergeant that the plaintiff was suffering from some form of delusion.   It had been difficult for the sergeant to follow what the plaintiff was trying to say because it was not making any sense.  This sergeant asked the plaintiff if anything else had occurred in the burglary. The plaintiff recalled waking up with a very sore back and having a sore rectum and of his thoughts that someone had either inserted a rod or knife into his anus or that he had been sexually assaulted by a man.  He provided the sergeant with a copy of the letter from his doctor.  He referred to his belief that he had been anaesthetised prior to the assault and the fact that he had not woken up or had any memory of the assault.  He wanted the sergeant to take away some underpants he had been wearing that night for testing.  The sergeant declined but said he would be referring the file to the sexual abuse team.

[37]     The sergeant spoke to another officer and psychiatric nurse employed by the Police.  They had access to the National Health Board database.   It is part of this officer’s job to provide mental health information to the Police which may be of assistance to them when dealing with members of the public.   The information provided was that the plaintiff had previously been diagnosed with paranoid schizophrenia.

[38]     This sergeant concluded that the initial senior constable had not erred in his conduct or handling of the file.  The sergeant agreed with his assessment to file the complaint, given the lack of supporting evidence and consideration of the plaintiff’s background.  At the time, the senior sergeant also spoke about what had happened with a detective senior sergeant, an officer with 38 years’ experience and someone who at the time was working with the Adult Sexual Abuse team (ASA).  This officer also made an assessment in May 2015, on the basis of all the information then available to the Police, that this was not a situation where the ASA team needed to investigate the allegations further.

[39]     The plaintiff also produced to the Court various other documents.   These included a print out of the Wikipedia entry on BND, the German Federal Intelligence Service. The plaintiff provided this document with the statement:

Interest in tax evasion suggests that German neighbour in ………………..

seen  returning  from  a  Court  of Appeal  hearing  on  tax  evasion  by  one

……………………… may be an employee of the service.  This man was suspected of hiding in the neighbouring German’s room in [the premises where the alleged conduct against the plaintiff is said to have occurred] and may be a suspect.   He has been seen at my new premises and in the supermarket nearby.  The group were also suspected of using anaesthetics on visitors.

[40]     The  plaintiff  has  also  filed  an  affidavit  in  opposition  to  the  strike-out application, affirmed by him on 15 September 2015.

[41]     In his affidavit, the plaintiff says the incident of 24 February was repeated on

9 March 2015.   He says that on that occasion he had piled two bags of luggage against the door but this was insufficient to keep out an intruder.   He had left a window open.  He expresses the view that, on this occasion, another occupier at the guesthouse, a German man who is a mathematics student, had entered his room and he “conjectured he had some of the attributes befitting an intelligence agent.   His room was always well-secured and guarded”.

[42]     Elsewhere in the affidavit, the plaintiff said the back symptoms he felt in February 2015 were distinctive and had only occurred once before, when a similar incident was suspected on the nights of 18/19 August 2012 in another New Zealand

city.  A chair against the door had been moved on that occasion, also with evidence of entry.

[43]     In his affidavit, the plaintiff referred to a particular resident appearing to be surveilling the premises and having threatened to “make sure” Hillary Clinton never got elected.  He also referred to a man resembling a particular person, a CIA agent known to have worked in New Zealand from “Charlie Wilson’s war” appearing at a tenancy hearing involving the plaintiff.  The plaintiff referred to his witnessing in 24

September 2004 a motion by the Speaker of Parliament to cede sovereignty to the People’s Republic of China.  He said that he believed this incident or motion was the reason for so much intelligence interest in him.

[44]     In his affidavit, the plaintiff refers to a further alleged incident occurring on the night of 10 August 2015 at a particular hotel.  He said in his affidavit that, on this occasion, he was only “asleep” or unconscious for over two hours, that when he awoke he could smell the fumes of anaesthetic, he had further rectal soreness and that two guests of foreign origin were suspected.

[45]     In submissions to the Court, although not in his affidavit, the plaintiff made a number of statements to show that complaints, which on the Police record were recorded as being false, were in fact justified.

Discussion

[46]     I am satisfied  that there is no prospect of the plaintiff obtaining the relief he seeks on the basis the Police failed to investigate the allegations of an indecent assault made in the plaintiff’s letter, received by the Police on 12 March 2015.  That investigation proceeded by way of the Police carefully considering what was said in that letter and other information which the Police had on their database, and then through the senior constable’s visit to the plaintiff and discussion with him in his room on 19 March 2015.

[47]     There was a further fresh investigation as a result of the complaint which the plaintiff made to the IPCA.   That investigation proceeded primarily by way of a further visit from an experienced Police officer to the plaintiff at the address where

he was alleging various criminal activity may have occurred.   Again, the Police considered other information that was available to them through the Police database and information legitimately available to them through the National Health Board database.

[48]     There is no evidence in the documentary record and no allegations have been made by the plaintiff in his statement of claim to the effect that the Police may have made a policy decision that they would not investigate complaints made by people who had a mental illness.  There is no allegation in the statement of claim and no evidence in the documentary record of the investigation to suggest that any of the Police involved made a decision as to how and whether the investigation should continue on the basis that the plaintiff had been found to be mentally disordered in terms  of  the  Mental  Health  (Compulsory Assessment  and  Treatment) Act  1992 (counsel for the Police confirmed in submissions, for the benefit of the plaintiff, that the Police were not suggesting that he was mentally disordered in terms of that Act).

[49]     The plaintiff has asserted in his statement of claim that the Police decision, not to investigate his allegations in the way he wants them to, was influenced by opinions Police officers came to as to his mental state.   That is an allegation, in effect, accepted by the Police although it is apparent this was only one matter they took into account in considering the credibility or otherwise of his allegations, and whether or not all the information and evidence available justified their continuing with an investigation in relation to his allegations.  There was nothing unlawful or unreasonable in the Police officers relying on their experience and judgement as to the potential for the plaintiff to be suffering from mental illness and for that to affect the evidential value of the allegations he was making in deciding what, if any, further steps they should take with regard to their investigation.

[50]     The continuation of a Police investigation has real potential to cause stress to a complainant, demands on finite Police resources and anguish and worry for those who might find themselves suspected of serious criminal offending through such investigation.  It is quite proper and indeed necessary for the Police to make careful and objective assessments as to the credibility of complaints when deciding to what extent they should continue with an investigation as to those complaints.

[51]     It is well established that the Courts will not interfere with decisions which the Police make as to operational matters and as to whether and how they might investigate a complaint made by a member of the public.

[52]     The decision made by the Police, not to investigate the complaints in the way the plaintiff wants, was based on Police assessment as to the evidence that would be available to substantiate such complaints.   That did require them to consider the plaintiff’s  personality  and  mental  state  along  with  other  information.    There  is nothing in the documents before me or in allegations made in the statement of claim to suggest that the opinions reached by relevant Police officers were the result of personal antipathy towards the plaintiff.

[53]     The senior constable who first spoke with the plaintiff did so partly to check the validity of the complaint but also to see if the plaintiff needed assistance.  The senior sergeant who met with the plaintiff on 14 May 2015 stated that, while the plaintiff had obvious mental health issues, he appeared to be able to look after himself  well,  that  his  room  was  tidy,  he  was  not  unkempt  and  could  hold  a reasonable conversation.   I also acknowledge the polite way in which the plaintiff presented his submissions to the Court.

Conclusion

[54]     Having carefully considered those submissions, the statement of claim and the documents referred to, I am satisfied this clearly is a case where the plaintiff has no prospect of success on the claim he has put before the Court.   The defendant should not be put to the trouble and expense of the further steps that it would have to take  in  opposing  the  claim  if  the  proceedings  were  to  continue.    The  Court’s resources and the access of others to the Court should not be limited through the Court’s time and resources having to be allocated to deal with a claim which has no merit and no prospect of success.

[55]     In these circumstances, it is appropriate for the proceedings to be struck out. I make an order accordingly.

[56]     The defendant does not seek any order for costs and I make no such order.

Suppression by consent

[57]     On 10 August 2015, with no objection from the defendant, Gendall J made an order suppressing all details with respect to the proceeding, including the names of any parties or persons who may be named in the proceeding, such order to remain in force until any further order of the Court.   The plaintiff renewed his application during the hearing before me because of the particular nature of the allegations which are the subject of the proceedings.

[58]     Because  of  the  nature  of  those  allegations  and  the  information  in  this judgment as to mental health issues, it is appropriate to continue the suppression order with regard to the name of the plaintiff and any information that might lead to identification of him or any other people referred to in this judgment.

[59]     The plaintiff chose to issue these proceedings in this Court.  The principle of open justice is important.  The public is entitled to know what issues arose in these proceedings and how the Court has dealt with those issues.  For that reason, the final suppression order is more limited than was the case with the initial suppression order.

[60]     By consent, I do make an order for final suppression of the plaintiff ’s name in relation to these proceedings.  For that reason, the initials adopted in the intituling in the published judgment of these proceedings have no connection to the plaintiff’s real name.   I also make an order for the final suppression of any information that might lead to identification of him or any other people referred to in this judgment.

Solicitors:

Raymond Donnelly & Co., Christchurch