Nuku v District Court at Auckland

[2019] NZHC 3205

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000789

[2019] NZHC 3205

BETWEEN

KARL NUKU

Applicant

AND

THE DISTRICT COURT AT AUCKLAND

Respondent

Hearing:

5 December 2019

Appearances:

K Nuku in person (via AVL)

H Ford, Contradictor appointed by the Court

Judgment:

5 December 2019

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:

H Ford, Auckland

Copy to Mr K Nuku

NUKU v THE DISTRICT COURT AT AUCKLAND [2019] NZHC 3205 [5 December 2019]

[1]                 On 31 December 2017, the applicant, Mr Nuku, sent seven charging documents to the Auckland District Court seeking to institute private prosecutions against a person whom I will refer to as W29, pursuant to s 26 of the Criminal Procedure Act 2011.

[2]                 The charging documents were accompanied by a substantial bundle of supporting materials. Some time later, Mr Nuku provided yet further materials to the District Court. It appears that the District Court did not acknowledge receipt of any of the documents. There was correspondence between Mr Nuku and the District Court regarding this.

[3]                 On 3 August 2018, Judge Sharp issued a minute pursuant to s 26(1)(b), directing that Mr Nuku, as the proposed prosecutor, file formal statements and exhibits to justify the proposed private prosecutions.

[4]                 Mr Nuku then had discussions with District Court Registry staff seeking to ascertain whether or not the materials he had already filed had been put before the Judge. Unfortunately, his queries in this regard seem to have gone unanswered.

[5]                 On 19 September 2018, Judge Dawson issued a ruling recording that Mr Nuku, as the proposed private prosecutor, had failed to file formal statements as directed by the Court. The Judge held that there was insufficient evidence against W29 to justify a trial, and directed the Registry not to accept the charging documents.

[6]                 Mr Nuku has sought judicial review of the two judicial decisions, and also challenged the actions of Registry staff.

[7]The matter was called before me this morning for hearing.

[8]                 In the course of discussions with Mr Nuku, he referred me to the decision of the Court of Appeal in Vector Ltd v H Construction North Island Ltd (in receivership and liquidation).1 In that decision the Court discusses relevant law, and in particular,

1      Vector Ltd v H Construction North Island Ltd (in receivership and liquidation)1 [2019] NZCA 215.

s 26(3)(a) of the Criminal Procedure Act. This decision was not available at the time that Judges Sharp and Dawson dealt with the matter.

[9]                 Mr Nuku pointed out that the Supreme Court has recently granted leave to appeal the Vector decision.2 Leave to appeal has been granted on the question of whether or not the Court of Appeal was correct in its interpretation of s 26(3)(a). The Court noted there are likely to be two matters in issue when the appeal is heard. First, whether a Judge, in deciding under s 26(3)(a) whether there is sufficient evidence to justify a trial, can consider evidence provided by the proposed defendant. Secondly, the relevance of public interest factors under the section, including the extent to which the Solicitor General’s Prosecution Guidelines are relevant.

[10]              Mr Nuku requested that the hearing of his application for review should be adjourned, pending the Supreme Court’s decision.

[11]              Ms Ford has been appointed as a contradictor to assist the Court. Fortuitously, she is also junior counsel in the Vector appeal. She advised that the appeal is set down for hearing in March 2020. It is anticipated that the Supreme Court will give a reasonably prompt decision, because the substantive proceedings are due for hearing in this Court in October 2020.

[12]              There is no great urgency to Mr Nuku’s judicial review proceedings and I accept that there is a possibility that the Supreme Court’s decision in the Vector matter may raise issues relevant to Mr Nuku’s application. In particular, Mr Nuku in his submissions has made extensive reference to the Prosecution Guidelines and also argued that a hearing is required, or if not required, likely to be helpful, when considering the s 26 matters. There has been some disagreement in this Court about the correct approach to s 26 and Mr Nuku suggested the Supreme Court may well take the opportunity to clarify the law and resolve those different approaches.

[13]I accept Mr Nuku’s submissions in this regard.

2      S v Vector Ltd [2019] NZSC 97.

[14]              In my view it is appropriate to postpone the hearing of the application for review until the Supreme Court has issued its decision.

[15]              Ms Ford is to file a memorandum with the Court once the Supreme Court’s decision has been issued. The Registry is then to convene a telephone conference to determine whether or not Mr Nuku wishes to amend his pleadings as a result of the Supreme Court’s decision, whether any further evidential materials are required, whether amended submissions are required, and to allocate a hearing so that the application can be determined. To ensure that the matter is not overlooked, I direct that it is to be placed in the Mentions List before the Duty Judge in the week of 3 August 2020. It may be brought on earlier if the Supreme Court issues its decision prior to that date. Mr Nuku is to appear by way of AVL.

[16]              As I noted, Ms Ford is appearing as contradictor, (pursuant to directions made by Palmer J). Her costs to date, including the costs of her appearance before me this morning, are to be met out of the public fund, pursuant to s 178(2)(b) of the Senior Courts Act 2016.

Wylie J