Mitchell v Porirua District Court
[2017] NZHC 1331
•16 June 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-195 [2017] NZHC 1331
UNDER The Judicature Amendment Act 1972 IN THE MATTER OF
An application for judicial review
BETWEEN
KERRYN MITCHELL Applicant
AND
PORIRUA DISTRICT COURT First Respondent
AND
STELLA BROWN Second Respondent
AND
JOANNE TYSON Third Respondent
AND
DARYLDINE MULU Fourth Respondent
Hearing: 22 May 2017 Appearances:
K Mitchell self-represented Applicant
S C Carter for RespondentJudgment:
16 June 2017
JUDGMENT OF CULL J
[1] Ms Mitchell was unsuccessful in her attempt to privately prosecute three Corrections Officers on various charges of theft and assault. She now seeks judicial review of Judge Walker’s decision, rejecting her charging document to commence that private prosecution.1 The Judge’s decision was made under s 26(3) of the Criminal Procedure Act 2011 (the Act).
[2] Ms Mitchell claims under the following grounds for judicial review:
1 Mitchell v Tyson [2016] NZDC 3514.
MITCHELL v PORIRUA DISTRICT COURT [2017] NZHC 1331 [16 June 2017]
(a) Illegality – the Judge erred in law and in fact, by failing to follow the procedural steps under s 26(1)(b) and (2) of the Act (i.e. failed to take into account relevant considerations and took into account irrelevant considerations).
(b)Breach of natural justice – the Judge breached the right to hear the other side by not allowing Ms Mitchell to cross examine or summon the intended defendants’ witnesses, or to respond to their submissions.
(c) Unreasonableness – the Judge reached a decision that no reasonable decision-maker could have reached in concluding that the proposed prosecution was an abuse of process.
[3] The key issues for this proceeding therefore are:
(a) Did the Judge err in law by omitting to direct the filing of formal statements under s 26(1)(b) of the Act? (the illegality ground)
(b) Was the absence of cross-examination a breach of natural justice?
(c) Did the Judge err in finding that the proposed charge against the fourth respondent was an abuse of process? (the unreasonableness ground)
[4] I will deal with the factual background to this claim; the findings in the District Court decision; the relevant law; and consider the parties’ submissions in respect of each of the above issues, before reaching my conclusions.
Factual background
[5] Ms Mitchell’s claim is part of a broader set of proceedings before this Court.
[6] Ms Mitchell was arrested and remanded in custody on breach of protection order charges on 2 December 2012. She was released from prison on Friday 1 July
2016, following a successful sentence appeal to the Court of Appeal. She was
immediately re-arrested on a further breach charge and remanded in custody. Ms Mitchell was subsequently granted bail, but that was later revoked. Ms Mitchell has now been finally released from prison in respect of these matters.
[7] All of the proceedings that Ms Mitchell has commenced allege that the State has, through a range of its manifestations, acted unlawfully in the course of Ms Mitchell’s period of imprisonment. The proceedings fall into three categories:
(a) allegations of unlawful treatment while detained; (b) allegations of unlawful detention; and
(c) a judicial review challenge to a decision of the District Court declining to accept private prosecutions filed by Ms Mitchell against the Department of Corrections employees.
[8] The last of these proceedings, the judicial review challenge, is the subject of this proceeding.
[9] The relevant background in relation to the judicial review challenge is as follows. In 2015, Ms Mitchell sought to file a private prosecution against three Corrections Officers (the second, third and fourth respondents). In this private prosecution, Ms Mitchell alleges that while she was in custody on remand at Arohata Women’s Prison the following incidents occurred:
Theft
(a) two of the Corrections officers (Stella Brown and Joanne Tyson) committed theft of her personal property,2 and theft by a person in a special relationship;3 and
Assault
(b)one of the officers (Daryldine Mulu) committed common assault against her.4
[10] The events in question took place on two separate occasions. The first occurred on 5 June 2015, when Ms Mitchell was transferred from her cell to a secure unit at the Prison, following allegations that Ms Mitchell had made serious threats of violence against Ms Brown and Ms Tyson. Ms Brown and Ms Tyson were instructed to arrange to move Ms Mitchell’s property to the new cell. It is the manner in which the property was moved that is the subject of the theft charges. She says that the two officers unlawfully dealt with, destroyed or gave it away to other prisoners in the wing.
[11] The second incident occurred on 2 June 2013, with Ms Mitchell alleging that Ms Mulu entered the interview room in the Prison where she was present and, without any provocation or reason, pushed her into cupboards, over a vacuum cleaner where she fell to the ground and Ms Mulu refused to allow her to get up.
[12] After Ms Mitchell filed the charging documents and supporting material to the District Court, the documents were referred to Judge Walker on 28 August 2015. The Judge directed that a hearing was appropriate, with the proposed defendants having an opportunity to be heard. A hearing took place on 4 February 2016, where the intended defendants gave submissions and the Judge accepted further information from Ms Mitchell and allowed her to file further exhibits, subsequent to the hearing, which she did.
[13] On 4 March 2016, Judge Walker issued a reserved judgment, declining to accept charging documents presented by Ms Mitchell for filing, pursuant to s 26(3) of the Act.5
[14] In this proceeding, Ms Mitchell seeks judicial review of the Judge’s decision
to reject the charging documents in her proposed private prosecution. The first
respondent, the Porirua District Court, notified the Court that it would abide the decision of the Court in this proceeding and has not defended the claims.
District Court decision
[15] The Judge observed that the Registrar had referred the charging documents to him under s 26 of the Act for a decision as to whether they would be accepted for filing. The Judge identified that under this section, the key issues for determination were:
(a) whether there is insufficient evidence to justify a trial; and
(b) whether the proposed prosecution is an abuse of process.
[16] In determining whether the evidence is sufficient to justify a trial, the Judge considered he was entitled to take into account what Ms Mitchell had put before him, as well as the affidavits filed by the intended defendants. A private prosecutor must demonstrate more than just a prima facie case and consideration can include “whether or not the intended prosecution stands little or no chance of success.”6
[17] The Judge concluded in relation to the first incident that Ms Mitchell had no evidence that the process described by Ms Brown and Ms Tyson is not what occurred. She had not presented a prima facie case and the evidence submitted was not sufficient to justify a trial.
[18] There was no evidence before the Judge to support an allegation that either of the Corrections officers acted other than in accordance with the Prison Operations Manual. The Judge held that the fact that Ms Mitchell did not receive all of the property that was left behind in the previous cell, did not establish dishonesty on the part of Ms Brown or Ms Tyson.
[19] The Judge then considered the evidence about the second incident with Ms Mulu. The Judge concluded that there was an “inherent improbability in Ms Mitchell’s narrative” that Ms Mulu had left her duties in the church service
6 At [10].
where she was the sole officer in charge to go to an interview room to assault Ms Mitchell in the presence of another Corrections Officer.7 The Judge found that Ms Mulu and Mr Koti’s accounts were consistent and that the evidence before the Court was insufficient to justify a trial.
[20] Ms Mitchell had been charged and found proved of a disciplinary offence of assault on Mr Koti by a Visiting Justice at a defended hearing at the time. In light of this, the Judge held that Ms Mitchell would be attempting to use a private prosecution to re-litigate the issue of whether Mr Koti was assaulted by Ms Mitchell. This would be an abuse of process.
[21] The Judge rejected the charging documents against Ms Brown and Ms Tyson because of insufficient evidence. The charging document against Ms Mulu was also rejected because of insufficient evidence and was considered an abuse of process.
Relevant law
[22] There is no right of appeal from a Judge’s refusal under s 26 to accept a charging document for filing.8 The appropriate remedy is judicial review.9
[23] Ms Mitchell has filed her judicial review application under s 4 of the Judicature Amendment Act 1972. This Act was repealed on 1 March 2017 by s 22 of the Judicial Review Procedure Act 2016. However, all judicial review proceedings commenced under the Judicature Amendment Act that are pending or in progress before 1 March 2017 are to be continued and completed under that Act, as if it had
not been repealed.10 Ms Mitchell’s Statement of Claim was filed on 28 March 2016
and so will continue under the Judicature Amendment Act.
[24] Judicial review is part of the supervisory function of the Court which ensures public power is exercised according to the law.11 It is primarily concerned with
7 At [23].
8 Criminal Procedure Act 2011, s 296; a right of appeal only exists where a person has been charged with an offence, but the defendants have not yet been charged.
9 See Clark J’s earlier decision in these proceedings: Mitchell v Tyson [2016] NZHC 2210, [2016] NZAR 1545 at [39].
10 Judicial Review Procedure Act 2016, s 23.
11 Mercury Energy Ltd v Electricity Corporation of New Zealand Ltd [1994] 2 NZLR 385 (PC).
examining procedural compliance, not the substance of the decision itself, when assessing whether a decision should be allowed to stand.12
[25] Ms Mitchell submits that the Judge’s decision is reviewable for illegality, primarily for making errors of law, failing to take into account mandatory considerations, and taking into account irrelevant considerations. Mallon J in Berryman explained the approach taken to claims a decision maker failed to take into account relevant considerations as follows:13
A person with a statutory power must exercise that power within perimeters set by the statute. The statute may require or permit (expressly or by implication) that the decision maker take into account certain considerations (these are referred to as “the relevant considerations”). The weight the decision maker places on a relevant consideration is a matter for the decision maker. This means that failing to take into account the required (or mandatory) relevant considerations is a ground of judicial review but failing to have “sufficient regard” to relevant factors is not.
[26] Any error of law must be material, that is, “one which may well have altered the ultimate decision”.14 This can arise, for example, where a decision maker has applied a gloss to a statutory test, or asked him or herself the wrong question.15
[27] In New Zealand, private citizens also have the right to act as prosecutors by commencing a private prosecution.
[28] The Judge’s decision was made pursuant to s 26 of the Act. Section 26(1)(b) outlines the process for a Judge to follow in relation to evidence for a private prosecution and s 26(3) outlines the legal standards to be applied by a Judge in determining that a charging document should not be accepted for filing. Section 26 provides:16
26 Private prosecutions
(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
12 Aorangi School Board of Trustees v Ministry of Education [2010] NZAR 132 (HC) at [8].
13 Berryman v Solicitor-General [2008] 2 NZLR 772 (HC) at [84].
14 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314,
22 December 2011.
15 Matthew Smith New Zealand Judicial Review Handbook (Brookers, Wellington, 2011) at 709.
16 Emphasis added.
(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.
…
[29] Before deciding whether to accept a charging document for filing, the District Court may direct the proposed defendant to provide material and make submissions on the basis of the material provided by the proposed prosecutor. In Wang v District Court, Woolford J identified that this approach was good practice and accorded with the approach undertaken by police when filing charging documents for a prosecution.17
[30] In Taka v Auckland District Court, Brewer J held that a Judge should exercise the discretion to hear from proposed defendants, if there is doubt about a proper basis on which to accept a charging document for filing or if there are circumstances
that suggest the prosecution is vexatious.18 In Taka, Brewer J found that the District
17 Wang v North Shore District Court (No 2) [2014] NZHC 2756, [2014] NZAR 1428 at [60] and
[63].
18 Taka v Auckland District Court [2015] NZHC 972, [2016] NZAR 1459 at [45].
Court Judge had made an error of law, by failing to direct the filing of formal statements and instead, relied on the prosecutor’s own affidavit to accept a charging document for filing.19
[31] The two grounds for exercising the discretion under s 26(3) are analogous to dismissing a charge under s 147 of the Act and guidance can be taken from case law decided under that section.20 Section 147 of the Act replaced s 347 of the Crimes Act 1961. Two cases decided under s 347 of the Crimes Act have particular relevance here.
[32] The first is R v Kim where the Court of Appeal discussed the meaning of
“insufficient to justify a trial” in the context of sufficiency of evidence:21
It is for the jury to determine whether the evidence is, or is not, sufficient to establish guilt. It is not for the Judge to predict what the jury will find. The test is whether the evidence, if accepted by the jury, is sufficient in law to prove the essential elements of the charge to the required standard. If so, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.
[33] The second relevant case is Fox v Attorney-General, where the Court of Appeal outlined what is required for a finding that there has been an abuse of process in relation to a decision to end a prosecution:22
These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a court to proceed with the prosecution on its merits would tarnish the court’s own integrity or offend the court’s sense of justice and propriety.
[34] I now consider each of the issues raised in this review proceeding and deal
with the parties’ submissions accordingly.
19 At [32].
20 Bruce Robertson (ed) Adams on Criminal Law: Criminal Procedure (online ed, Brookers) at
[CPA26.02].
21 R v Kim [2010] NZCA 106 at [5].
22 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37], emphasis added.
Illegality – did the Judge err in law by omitting to direct the filing of formal statements?
[35] The critical issue in these proceedings focused on whether the omission by the Judge to direct Ms Mitchell to file formal statements and exhibits that form the evidence she proposed to call at trial, resulted in an error of law. The steps envisaged under s 26 of the Act can be summarised as follows:23
(a) the person proposing to commence a private prosecution files a charging document;
(b) the Registrar may accept the charging document for filing; or
(c) refer the matter to a District Court Judge for a direction that the person commencing the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence proposed to be called at trial or such part of that evidence that the person considers is sufficient to justify a trial.
[36] The formal statements and exhibits that are filed by the private prosecutor must be referred to a District Court Judge, who must determine whether the charging document should be accepted for filing.
[37] In this case, Ms Mitchell posted the charging document and related documents to the Porirua District Court for filing. As a prison inmate, Ms Mitchell had no other option. She did not receive a notice accepting or rejecting the charging document until 8 September 2015. The documents had been received by the Registrar on 7 August 2015. On 28 August 2015, the Judge issued a Minute recording that the charging document had been referred to him by the Registrar and noted that Ms Mitchell had filed formal written statements. He then directed a hearing, for the proposed defendants to be given an opportunity to be heard on whether the evidence is sufficient to justify a trial or whether the proposed
prosecutions are an abuse of process.
23 Sections 26(1)(b) and (3).
Parties’ submissions
[38] Ms Mitchell submits that the Judge skipped the s 26(1)(b) step of directing her to file the formal statements and exhibits, which form the evidence Ms Mitchell proposes to call at trial. Instead, Ms Mitchell submits that the Judge proceeded to s 26(3), skipping a further step that the Registrar must refer to the Judge formal statements and exhibits that are filed in accordance with his direction under s 26(1)(b). The Judge then conducted the hearing, taking into consideration the affidavit evidence and exhibits from the defendants, without having the formal statements of evidence before him in support of Ms Mitchell’s prosecution.
[39] Under the claim of illegality, error of law and relevant/irrelevant considerations, Ms Mitchell submits that the Judge did not follow the steps in s 26(1)(b) or (2) of the Act but proceeded to consider s 26(3). Ms Mitchell also submits that the Judge took into account information in Ms Mitchell’s formal statement that was supplied by her, but in “draft form”. Ms Mitchell notes that the Judge realised this error at the hearing and so granted leave for her to file exhibits that went with the charging documents.
[40] At this hearing, Ms Mitchell informed the Court that the Judge’s omission to direct her to file her proposed evidence under s 26(1)(b) was significant, because she proposes to call a witness, who received Ms Mitchell’s property. The Judge therefore made his decision without considering relevant evidence.
[41] She further submits that the Judge made an error of law and fact in stating there is insufficient evidence for the claims of theft, when there is evidence that property was missing. Ms Mitchell states that the Judge did not address the ‘theft in a special relationship’ claim and paid more attention to Ms Brown’s evidence about the Prison Officers Manual, rather than the relevant statutory provisions.
[42] Ms Mitchell also claims that the Judge did not apply the correct legal tests in determining the sufficiency of evidence because he did not consider the statutory provisions of the alleged offence, namely, whether the elements of the law were met by the evidence; whether the prosecution had been filed in time; or whether the court had jurisdiction to hear the offences.
[43] The respondents’ submissions outline in detail the documents that were filed for the hearing before the Judge. In relation to the claims against Ms Brown and Ms Tyson, Ms Mitchell filed a number of documents along with the charging documents including a summary of facts for each respondent, a formal written statement dated 26 July 2015, and an exhibit list. In relation to the claim against Ms Mulu, Ms Mitchell filed several documents along with the charging document including a summary of facts, a formal written statement dated 12 October 2015, and an exhibit list. Separate documents were filed for each proposed defendant. None of the statements were marked as a draft, and they were all signed and dated by Ms Mitchell confirming their truth and accuracy.
[44] The respondents identify that in the course of the hearing Ms Mitchell was allowed to provide the Court a number of documentary exhibits. Ms Mitchell had explained to the Judge in her submissions that there were formal written statements and exhibits to be filed, but she had only filed them in draft, for the purposes of the charging documents.
[45] Following this explanation, the Judge gave Ms Mitchell an opportunity to file formal written statements and exhibits following the hearing and prior to making his decision. At the end of the hearing she was also granted leave to file any further exhibits that she relied on, which she did so on 11 February 2016.
[46] The respondents accept that the step of issuing a formal direction under s 26(1)(b) was omitted, but submit that this was merely technical in nature. Ms Mitchell was in fact provided an opportunity to provide formal written statements and exhibits before the Judge made his decision, and did so.
New evidence
[47] Ms Mitchell challenges the Crown’s submission and during the hearing, advised the Court orally that she intended to call a witness, another inmate, who was given Ms Mitchell’s items of property. Ms Mitchell would rely on this evidence to demonstrate that the two Corrections Officers, who dealt with her property, had stolen it by either discarding it or giving it to other inmates. Ms Mitchell did not raise this with the Judge, but points to her case management memorandum which
records that “the prosecutor reserves the right to change its position on any of the witnesses should further material come to hand.”
[48] At the time Ms Mitchell raised the issue of the procedural omission under s 26(1)(b) with the Judge, the Judge granted Ms Mitchell the opportunity to file further statements and exhibits but did not have any proposed brief or detail of another inmate’s potential evidence. For the respondents, Ms Carter submits that this hearing is the first time the Crown has been alerted to the fact that such a witness was intended to be called by Ms Mitchell.
[49] When pressed further on the nature of the evidence to be given, Ms Mitchell acknowledged that she has not approached the witness yet to give evidence nor did she have a likely proposed brief of evidence available.
[50] Ms Mitchell explained the reason for not wishing to raise this with an inmate, who was serving a prison sentence at the time, was to obviate any friction or “drama” in the unit between Ms Mitchell’s fellow inmates and the Corrections Officers. However, it transpires that the proposed witness has now been released from prison and is available in the community. Ms Mitchell indicated that she could approach her and obtain a brief of evidence now.
[51] The same argument was raised in relation to the proposed assault charge, where Ms Mitchell proposed to call 10 witnesses. Those witnesses’ names and the nature of their evidence was neither before this Court nor before Judge Walker. Ms Mitchell’s proposal to call the 10 witnesses was not raised with Judge Walker at the s 26 hearing.
[52] I turn now to consider the implications of the procedural “misstep” in respect of each of the charges.
Implications of the “misstep”for the theft charges
[53] The Judge examined the documents filed by Ms Mitchell in respect of the theft charges. It should be noted here that the principal charge against Ms Tyson was theft by a person in a special relationship, with the alternative charge of theft. The
Judge recorded the reverse for Ms Brown, noting that the alternative charge was theft by a person in a special relationship. The mis-description is minor and of no significance.
[54] The Judge recorded Ms Mitchell’s complaint that her property “was unlawfully dealt with, destroyed or given away to other prisoners on the wing” and recorded the actions taken by Ms Brown and Ms Tyson in checking Ms Mitchell’s property list and placing the property into the Unit’s Principal Correction Officers Area.24 The Judge records that Ms Brown did not deal with the property again after she had provided it to the Principal Correction Officers.
[55] The Judge then noted that Ms Mitchell was not present when the property was unpacked from her packing crate or bin, stating:25
It follows that she has no actual knowledge of what then occurred. It appears that all she is able to say is that only some of the items were sent over to her in the new cell in the secure area.
[56] Ms Mitchell refused to accept the bin of her personal property when it was given to her, because she could tell that property was missing.
[57] It appears that there was a half hour lapse in time between Ms Mitchell being moved to a new cell and the property being reissued to her in her new cell. Ms Mitchell acknowledged, as the Judge found, that she has no evidence to dispute the process described by Ms Brown and Ms Tyson. During this hearing, Ms Mitchell acknowledged that it is difficult for her to say how the property was stolen. However, she was notified that the items were stolen from the Receiving Officer, when she made a claim for compensation for her missing property. As the Judge correctly noted, “there is no evidence available to Ms Mitchell as to what then happened to the property” after it was recorded on a schedule and placed in the
custody of the Principal Corrections Officer.26 The Judge proceeded to find that
there was no evidence before him to support an allegation that either Ms Tyson or
Ms Brown acted other than in accordance with the Prison Operations Manual.
24 Mitchell, above n 1, at [11].
25 At [14].
26 At [15].
[58] On the evidence before this Court and the information provided during the hearing, there is still no evidence to support charges of theft on the part of the two respondents. It is uncertain and speculative whether the potential witness, who is now released into the community, will give evidence or provide a brief of evidence to Ms Mitchell and if so, what she will say about the incident, which occurred in June 2015.
[59] If a cogent brief of evidence supported Ms Mitchell’s contention that one or both of the Corrections Officers disposed of Ms Mitchell’s property to deprive her permanently of those possessions, a further charging document alleging theft by a person in a special relationship could be re-filed, as Ms Carter suggested. Alternatively, if this Court was satisfied that the evidence was worthy of further consideration, a direction could be made for the District Court Judge to reconsider the evidence. However, with this lapse of time and with no brief of the proposed evidence from the former inmate available at this hearing, there is no basis for such a direction.
[60] There is one further matter that was raised during the hearing and that concerned the disposal by the two Corrections Officers of Ms Mitchell’s hair brush, which was broken. Ms Brown deposed that one item on the Prisoner Property Item List, namely an orange hair brush, was broken so she removed it. Ms Carter submits that the disposal of the hair brush was likely to be carried out because it was a prohibited item under a policy: items that may be used to injure the prisoner, or any other person or used to damage property are prohibited under the Corrections Act
2004. The affidavit from Ms Brown does not state that the disposal of the hair brush was for those reasons, but it is self evident that such a defence would be raised in the event of a criminal prosecution.
[61] Thus, the burden on Ms Mitchell of proving beyond reasonable doubt that the Corrections Officers committed theft, either in their capacities as persons in a special relationship or theft simpliciter, is unlikely to be satisfied. Applying the R v Kim threshold, the evidence, if accepted, must be sufficient in law to prove the essential elements of the charge to the required standard. I consider there was no error of law here, as the evidence is insufficient to justify a trial for such charges.
Implications of the “misstep” for the assault charge
[62] The Judge examined the evidence provided for the assault charge, including the incident reports from a number of Corrections Officers. In relation to this incident, Ms Mitchell had been charged with assaulting Corrections Officer Koti, under s 128 of the Corrections Act 2004. A visiting Justice held a hearing and found the charge to be proved, pursuant to s 137 of the Corrections Act. During the hearing, two witnesses were called for the prosecution and Ms Mitchell called two fellow inmates to give evidence. For the Crown, it was submitted that the purported prosecution by Ms Mitchell against Ms Mulu was an abuse of process, as this matter had already been litigated.
[63] During the s 26 hearing, Judge Walker granted leave for Ms Mitchell to file any further exhibits she relied on in respect of this charge also. He also granted leave to Ms Mulu to file the record of the hearing of the assault charge before the visiting Justice and this was filed on 22 February 2016.
[64] In his decision, the Judge found that there was an inherent improbability in Ms Mitchell’s narrative that Ms Mulu left her duties in the church service, where she was the sole supervising officer, to go to an interview room where Ms Mitchell was present and lunge and assault her, in the presence of another Corrections Officer. The Incident Information Report from Corrections Officer Koti detailed the incident, stating that Ms Mitchell made a lunge towards him and he and Officer Mulu restrained her.
[65] Ms Mulu had been radioed to come to the guard room, where she saw Corrections Officer Koti talking with Ms Mitchell in the side room. When she saw Ms Mitchell lunge at Corrections Officer Koti, she restrained Ms Mitchell, who was “giving hard resistance”. Ms Mulu also completed an incident report.
[66] The Judge found that the burden would be on Ms Mitchell to exclude that Ms Mulu was acting in defence of another. Having taken into account Ms Mitchell’s version of events, the Judge reached the conclusion that the evidence upon which Ms Mitchell must rely is insufficient to justify a trial.
[67] At this hearing, Ms Mitchell confirmed that two inmates gave evidence for her in relation to that incident but she proposes to call 10 inmates, in support of the charge of assault. These additional inmates have not been briefed and it is uncertain whether they have even been approached to give evidence. Ms Mitchell was uncertain as to their likely response.
[68] There are two impediments to Ms Mitchell’s claim. Although Ms Mitchell asserts that she should be given a chance to file those 10 witness statements or call the evidence, the threshold in s 26 must first be met, before her private prosecution can be undertaken. The content of those witness statements is unknown. Without providing the necessary evidence to support her prosecution, Ms Mitchell cannot proceed.
[69] The greater impediment to Ms Mitchell’s prosecution, however, is that the proposed prosecution is a re-litigation of the incident already the subject of a determination by the visiting Justice. The relevant evidence was heard and a determination was made, unfavourable to Ms Mitchell.
[70] I concur respectfully with the Judge that the finding against her, that she assaulted Officer Koti, deals with the essential matter that would be in issue in a prosecution of Ms Mulu: was Officer Koti assaulted by Ms Mitchell? I do not consider the Judge has made an error of law or fact, nor has he taken into account any irrelevant considerations. As discussed below, the re-litigation of the same incident amounts to an abuse of process.
Was the procedural oversight critical?
[71] Although the Judge did not make an explicit direction that Ms Mitchell file formal statements and exhibits under s 26(1)(b) of the Act, this Court must look at the context in which the error has arisen and the nature and purpose of the requirement that has not been observed, in the context of the Act. Because there has been a procedural error or an error or form in a Court order, it does not necessarily
follow that invalidity is the inevitable consequence.27
27 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA), at 4; Sestan v Auckland
District Health Board (2006) 26 FRNZ 784 (HC), at [38] and [42].
[72] In Sestan v Auckland District Health Board, Asher J considered the circumstances of the failure to observe a mandatory requirement of a statutory provision.28 In evaluating the failure, Asher J considered:
(a) the nature and importance of the requirement that is not being observed, in the context of the Act as a whole;
(b) the nature of and reason for the failure to observe it; and
(c) the effects of the failure to observe it.
[73] The purpose of s 26 of the Act is to regulate the initiation of private prosecutions and to ensure that private prosecutions do not have the potential to be misused by persons acting maliciously or improperly.29 The procedure under s 26 of the Act is to provide the Court a means of obtaining the evidence proposed to be led by the prosecutor, in order to decide whether there is a sufficient evidential base to justify a trial.30
[74] Although there has been a technical breach of the procedure under s 26(1)(b) of the Act, the Judge provided Ms Mitchell with an opportunity to provide further exhibits and information, before making his decision. The Judge gave the opportunity to the respondents to provide material in response to the documents filed by Ms Mitchell, including her written statement. In doing so, the Judge was following the procedure in Burchell v Auckland District Court, to properly inform himself of all material facts in order to make a proper assessment of whether or not a
prima facie case had been made out.31
[75] As soon as Ms Mitchell raised the issue of the procedural omission under s 26(1)(b) with the Judge at the hearing, the Judge granted her the opportunity to file further statements and exhibits. The Judge was not informed that there was a potential witness, a prison inmate, who may potentially give evidence. That witness,
at the date of this hearing, still had not been notified or briefed.
28 Sestan, above n 27, at [43].
29 Burchell v Auckland District Court [2012] NZHC 3413, [2013] NZAR 219.
30 Criminal Procedure Act 2011, s 26(3)(a).
31 Burchell, above n 29, at [27].
[76] On the evidence before the Judge and before this Court, I can see no error in the Judge’s approach. In the context of the Act, any failure of the Judge to make a formal direction was minimal. Having been notified of the omission, the Judge gave Ms Mitchell every opportunity to file the necessary documents or written statements and on the Sestan factors, the effects of the omission are of no consequence. The technical breach of the procedure under s 26(1)(b) of the Act, being inconsequential
and minimal, does not invalidate the Judge’s decision.32
Was the absence of cross-examination a breach of natural justice?
[77] Ms Mitchell claims that she should have had an opportunity to cross-examine the witnesses for the prosecution. Under her breach of natural justice claim, Ms Mitchell submits that the Judge did not allow her a right of reply or cross examination of the witnesses and instead issued a decision that came to factual findings not supported by the additional exhibits. Ms Mitchell states she was not allowed to file the necessary affidavit in support or formal written statement.
[78] The respondents submit that there was no requirement that the Judge allow Ms Mitchell to cross examine the respondents. The respondents note that Ms Mitchell did not apply to cross examine the respondents’ witnesses at the hearing and Judge Walker did not refuse any such application. There is no evidence that any such application was made or declined. Further, Ms Mitchell was not cross examined and the Judge’s decision was made on the basis of the formal written statements and affidavits.
[79] Section 26 of the Act does not provide a right to cross-examination. The determination required of the District Court Judge is to determine whether the prosecution should proceed. That is done on the basis of the exhibits and statements that are to form part of the evidence that the private prosecutor proposes to call at trial. Section 26 of the Act does not provide a procedure for a hearing and the Judge noted in his decision he was to take into account what was filed and given as
evidence by both parties.
32 Sestan, above n 27, at [43].
[80] There are no decisions, in which either party has been given leave to cross examine witnesses in a proposed private prosecution hearing. Further, Ms Mitchell did not indicate to the Judge that she wanted to cross-examine any witnesses and nor did she seek to file further evidence or formal statements. Section 26 of the Act is silent on the opportunity or right to cross-examination and as the authorities reveal, there are no cases where a District Court Judge has allowed cross-examination of witnesses under the s 26 procedure.
[81] I find that there has been no breach of procedure under the Act nor has there been a breach of natural justice.
Unreasonableness – did the Judge err in finding that the proposed charge against the fourth respondent was an abuse of process?
[82] Ms Mitchell finally submits that the Judge reached an unreasonable decision in concluding that the claim against Ms Mulu was an abuse of process. Ms Mitchell states there is evidence of her complaints about this assault that were never actioned.
[83] The detail surrounding the Judge’s finding that there was insufficient evidence to justify a prosecution against the fourth respondent has been canvassed above.33 Judge Walker found that not only was there insufficient evidence to justify a prosecution, but the purported prosecution of the fourth respondent was an abuse of process, because it involved the same facts as the defended hearing before the Visiting Justice, where Ms Mitchell was found guilty of assaulting Mr Koti. The prosecution of Ms Mulu will deal with the same matter, that is, whether Mr Koti was assaulted by Ms Mitchell. The Judge found that this would be an abuse of process, if
Ms Mitchell was able to use a private prosecution to re-litigate the same issue.
[84] The Judge’s finding of an abuse of process is a rational and reasonable one, on Wednesbury principles and the Judge is not in error.34 I concur with the Judge’s view, that Ms Mitchell’s proposed prosecution against the fourth respondent is an abuse of process, as the same matter has already been heard and determined by a
Judicial Authority. There has been no error and that ground of review also fails.
33 Refer [62] – [70].
34 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA).
Conclusion
[85] Although the procedure under s 26(1)(b) was not strictly complied with, it was a technical breach only, being a lack of formal direction by the Judge to Ms Mitchell to file formal statements and exhibits. The omission does not invalidate the Judge’s direction to the Registrar not to accept the charging document for filing. The charging document and the documents, which included a formal written statement from Ms Mitchell and the further exhibits filed, were not sufficient to justify a trial on the alleged charges against the second and third respondents.
[86] The Judge’s finding that Ms Mitchell’s proposed prosecution against the fourth respondent is an abuse of process was reasonable and rational, as the matter has already been heard and determined.
[87] The absence of cross-examination by Ms Mitchell did not result in a breach of natural justice. There was no request to cross-examine witnesses and s 26 of the Act does not provide a procedure for cross-examination at this stage of the proceedings.
Result
[88] The application for judicial review is dismissed. [89] There will be no order as to costs.
Cull J
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