Police v Waitakere District Court HC Auckland M 521-Sw01

[2001] NZHC 491

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M 521-SW01

UNDER the Judicature Amendment Act 1972
IN THE MATTER of Judicial Review

BETWEEN NEW ZEALAND POLICE
Plaintiff

AND WAITAKERE DISTRICT COURT
First Defendant

AND DEO DATT SHARMA
Second Defendant

Hearing: 13 June 2001

Counsel: P Hamlin and K Latimer for plaintiff
K Maxwell on behalf of B Hart for defendant

Judgment: 13 June 2001

ORAL JUDGMENT OF NICHOLSON J

Solicitors: Meredith Connell & Co DX CP24063 Auckland for Plaintiff
B Hart, PO Box 47016, Ponsonby for Defendant

[1] The plaintiff, the New Zealand Police, has applied for judicial review of the decision of Justices of the Peace on 8 February this year ordering that the Police as informant call the evidence of children at the preliminary hearing of a charge relating to Mr Deo Sharma, the second defendant. The first defendant in the review proceeding is the Waitakere District Court being the Court in which the Justices made the order.

[2] The application for review was filed on 9 April. On 1 May the High Court gave notice that the application was on the swift track and there was an initial swift track conference set down for 10 May. On 10 May Mr Dickey appeared for the plaintiff. There was no attendance by either defendant. The conference was adjourned by Paterson J to 24 May. On 18 May Ms Aikman, Crown counsel, filed a notice on behalf of the first defendant advising that the first defendant did not oppose the plaintiff’s claim but pointing out certain procedural aspects. On 23 May counsel for the plaintiff sent a copy of his memorandum for the 24 May conference to Mr Hart, counsel for Mr Sharma. Mr Hart responded by letter dated 24 May advising that the second defendant accepted that the Justices of the Peace had no authority to make the order but stated a reservation that in the absence of such an order the Police should have been required to make the children available to the defence for interview with the possibility of the defence calling them as witnesses.

[3] At the adjourned initial conference on 24 May, Glazebrook J set down the hearing of the application to the Duty Judge list on 13 June noting that “settlement anticipated, probably not opposed” and ordering that written submissions be filed by 7 June and any reply filed by 11 June. Written submissions in support of the application were filed by Mr Hamlin, senior counsel for the plaintiff. No submissions have been filed for the second defendant and indeed no notice of opposition or documents have been filed by the second defendant.

[4] When the application was called today, Ms Maxwell appeared for the second defendant saying that she did so on instructions from Mr Hart who was engaged in another Court. She requested adjournment of the hearing. In light of the failure to file submissions as ordered and in the absence of any opposition documents being filed on behalf of the second defendant and particularly having considered the submissions in Mr Hamlin’s memorandum. I am of the clear view that it is appropriate to make the order sought because in my view the law is clear that there is no obligation on an informant to call any witnesses at a preliminary hearing other than those who the informant wishes to call. The Court has no power to order an informant to call witnesses at a preliminary hearing as the Justices did in this case.

[5] I accordingly decline the application for adjournment and make the orders as sought in the application, namely a declaration that the first defendant had no power or jurisdiction to make the order and secondly that the order be quashed.

[6] Costs are not sought and accordingly are not made.

[7] I understand that there is a pre-depositions hearing next Monday. The matter can now proceed on the basis of the Justices order having been quashed. Whether the informant should allow access to the children is entirely a different matter and is not the subject of any ruling or comment by me.