PN v Rollo

[2022] NZHC 402

NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS REMAINS IN FORCE: [2019] NZHC 2177

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2022-441-11

[2022] NZHC 402

UNDER

the Judicial Review Procedure Act 2016, the New Zealand Bill of Rights Act 1990, s 27 Right to Justice

BETWEEN

PN

Plaintiff

AND

JUDGE P S ROLLO, JUDGE A J ADEANE and ROGER PHILIP

Defendants

On the Papers
Judgment:	9 March 2022

JUDGMENT OF GWYN J

[on referral by Registrar under r 5.35A]

Introduction

[1]    PN has filed a  proceeding  in  the  High  Court  in  Napier  under  the  Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990. The statement of claim makes allegations against two District Court Judges and a lawyer.

[2]    The proceeding was referred to me, as Duty Judge, by the Registrar under     r 5.35A of the High Court Rules 2016. This permits a Registrar to refer a proceeding to a Judge where there is cause for concern that the proceeding amounts to an abuse of the Court’s process.

PN v ROLLO [2022] NZHC 402 [9 March 2022]

The proceeding

[3]    The proceeding relates to or stems from events that occurred while PN was awaiting trial on a criminal matter. PN says on 19 May 2018 he filed an application for a judge-alone pre-trial hearing about the admissibility of evidence. That was one month before the substantive case against him was to go to trial.

[4]    PN says he received no response to his application. However, on the day of his trial he appeared before the second-named Judge who advised that what was to occur was the hearing of PN’s admissibility question that he had filed a month before, rather than the trial itself.

[5]    PN alleges that he was required to proceed with that pre-trial hearing, despite not having received a response to his notice and being unprepared. He says also that the police used it as an opportunity to introduce new evidence and that the event was an “ambush pre-trial”. PN’s first cause of action relates to this event. He alleges that it was a violation of his rights under the New Zealand Bill of Rights Act 1990 (Bill of Rights).

[6]    PN’s second cause of action relates to a judicial review of the District Court decision in relation to the first cause of action. PN says that the lawyer who was amicus for the defence (the amicus), erroneously advised him to file the judicial review application for him (PN), in the District Court. Subsequently, PN says he was advised that the District Court has no jurisdiction in relation to judicial review. He was not advised of that until he appeared in Court before the second-named Judge.

[7]    That Judge issued a reserved judgment on 22 November 2018. PN says that the judgment misrepresents his position and that he did not accept what the Judge said he had accepted. PN refers to a “fake High Court Judicial Review” and a considerable part of his statement of claim focuses on his discussions with the Judge, who was also the trial Judge at PN’s subsequent trial, about this matter.

[8]    PN’s third cause of action alleges corruption by the amicus, by allegedly attempting, with the second-named Judge, to deceive PN in a “fake High Court judicial review”.

Subsequent events

[9]    For completeness, I note that PN subsequently appealed his conviction and sentence in the District Court. The appeal was heard before Cull J on 28 June, 10 July, 7 August and 21 August 2019 and a judgment issued on 2 September 2019.1

[10]   PN’s appeal was on the grounds that the integrity of the trial and its process were compromised and the Judge erred in fact and law.

[11]   The High Court judgment notes that PN’s grounds of appeal were set out in nine parts, “both challenging the Judge’s findings and making allegations of impropriety against various participants within the criminal justice system”.2

[12]   Under the heading “Fifth ground: past legal representation”, the Judge considered PN’s allegation that his previous legal representation had been inadequate and had affected his ability to have a fair trial. The Judge concluded “I cannot find any basis for holding that his trial was unfair or his legal representation, previous or otherwise, was inadequate. I reject this ground of appeal.”3

[13]   In relation to the seventh, ninth, 12th and 13th grounds (psychology reports, possible reoffending, ambush pre-trial and name suppression), Cull J said:4

… these matters have no bearing on the determination of the conviction appeal. The ‘ambush pre-trial’ relates to an earlier occasion when the trial was set to proceed but did not. The concerns expressed therefore have no bearing on the trial that resulted in these convictions.

[14]   PN sought leave from the Court of Appeal to appeal Cull J’s decision dismissing his appeals. The Court of Appeal declined to grant leave.5

1      D v New Zealand Police [2019] NZHC 2177.

2 At [25].

3 At [60].

4 At [61].

5      PN v New Zealand Police [2021] NZCA 658 at [31].

Application of rules 5.35A and 5.35B of the High Court Rules

[15]   Rule 5.35B(2)(a) permits a Judge to whom a proceeding is referred under      r 5.35A to strike out the proceeding if satisfied that it is plainly an abuse of the process of the Court. The Judge may take this step on his or her own initiative.

[16]   First, Judges of the District Court have the same immunities as Judges of the High Court.6 Judges of the High Court have always had immunity from being sued under the civil law for acts done in their official capacity.7 This continues to be the case. It follows that the claim against the two District Court Judges in the present case cannot succeed and must be struck out. 8

[17]   PN purports to bring his claim under the Judicial Review Procedure Act 2016 and the New Zealand Bill of Rights Act 1990, s 27. The Judicial Review Procedure Act provides a means for the superior courts to review the manner in which public decisions are made. It does not apply to an amicus.

[18]   Section 27 of the New Zealand Bill of Rights Act 1990 (right to justice) is about the obligations of a decision-maker (a tribunal or other public authority) when making a determination about a person’s rights, obligations, or interests protected or recognised by law. It has no application to the claim against Mr Philip.

[19]Accordingly, the claim against the amicus is also struck out.

[20]   As I have made these orders on my own initiative, r 5.35B(3) requires me to advise the plaintiff of his right to appeal to the Court of Appeal against my decision. I now formally notify him of that right.

[21]The named defendants are to be served with this judgment.9

6      District Court Act 2016, s 23.

7      Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [161].

8      High Court Rules 2016, r 5.35B(2)(a).

9      Rule 5.35B(4).

[22]   The Registrar has not yet released the proceeding for service, so the defendants have incurred no expense in defending it. For that reason, I make no order as to costs.

Gwyn J