Prescott v District Court at North Shore
[2017] NZHC 2828
•17 November 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-000235 [2017] NZHC 2828
BETWEEN PETER RICHARD PRESCOTT
Plaintiff/Applicant
AND
THE DISTRICT COURT AT NORTH SHORE
First Respondent
AND
MALCOLM DENMEAD Second Respondent
Hearing: 4 August 2017 Appearances:
Applicant in person
N A Speir for Second RespondentJudgment:
17 November 2017
JUDGMENT OF PAUL DAVISON J
This judgment was delivered by me on 17 November 2017 at 3pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Rice & Co., Auckland
PRESCOTT v THE DISTRICT COURT AT NORTH SHORE [2017] NZHC 2828 [17 November 2017]
Introduction
[1] On 1 June 2012 Mr Prescott (the applicant) was inside his motor home which was parked on Unity Drive North, Albany. Early that morning two Auckland Council officers approached the motor home and knocked on the door. They wished to speak with the occupant regarding an alleged breach of Council bylaws pursuant to which it was unlawful to sleep in a vehicle parked in a public place within the jurisdiction of the Council. The applicant opened the motor home door and an altercation between him and the Council officers ensued. The applicant says that during the altercation he was struck on the hand by one of the Council officers. The applicant subsequently brought civil proceedings in the Auckland District Court against the Auckland Council seeking damages under several causes of action. The
District Court heard and dismissed his claim.1 The second respondent (Mr
Denmead) was one of the two Auckland Council officers involved in the events of 1
June 2012. Mr Denmead gave evidence before the District Court.
[2] In her judgment delivered on 21 April 2015, Judge M E Sharp found that she was totally unable to rely on the evidence of Mr Denmead by reason of its many inconsistencies. The Judge attributed these inconsistencies to Mr Denmead having forgotten what had happened. On 19 December 2016 the applicant filed documents in the North Shore District Court pursuant to which he proposed to commence a private prosecution against Mr Denmead. On 4 January 2017 Judge J C Down issued directions (the decision) to the Registrar pursuant to s 26(3) of the Criminal Procedure Act 2011 that the applicant’s proposed private prosecution charging
documents not be accepted for filing.2
[3] The applicant, who appears in person and is self–represented, seeks judicial review of Judge Down’s decision. By way of relief, he seeks an order that the charging documents be accepted for filing by the North Shore District Court. Although not specifically pleaded, by implication he seeks an order setting Judge Down’s decision aside. By way of further relief, in his statement of claim he seeks a
judicial determination as to whether the passage of time and a poor memory qualify
1 Prescott v Auckland Council [2015] NZDC 7035.
2 Prescott v Denmead DC North Shore, 27 January 2017 (Directions of Judge J C Down in a proposed private prosecution).
as a lawful excuse for the swearing of a knowingly false affidavit. The applicant filed a “supplementary memorandum” to his “statement of claim” on 6 March 2017 correcting the remedy sought in his application for review. The applicant’s supplementary memorandum states that he seeks:
a.A judicial determination as to whether the “passage of time and a poor memory” qualify as a lawful excuse for the swearing of a knowingly false affidavit; and
b.A judicial determination as to whether the “passage of time and a poor memory” qualify as a lawful excuse for the making of knowingly false statements of material facts under oath in a judicial proceeding; and
c.That the statements made in the Judge’s conclusions at paragraph 10 of his Directions as to my reason for my private criminal prosecution be struck from the record; and that
d. That my private prosecution be accepted for filing.
[4] The District Court at North Shore as first respondent, has filed an appearance pursuant to r 5.50 of the High Court Rules, advising that it will abide the decision of the Court in relation to the applicant’s application for review but reserving its rights in respect of costs and the right to be served with documents filed. The District Court has also reserved its rights pursuant to r 5.5(1). After the hearing, the District Court at North Shore provided a copy of the exact materials that were filed in the District Court by the applicant.
Private prosecutions – Criminal Procedure Act 2011, s 26
[5] Section 26 of the Criminal Procedure Act confers power on a Registrar to either accept a private prosecutor’s charging document for filing or, alternatively, to refer the matter to a District Court Judge for a direction regarding the filing of formal statements and exhibits. A Judge may direct that the charging documents not be accepted for filing on two grounds. Either that the formal statements and exhibits are insufficient to justify a trial or that the proposed prosecution is an abuse of process. Section 26 provides:
26 Private prosecutions
(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(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.
(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
The proposed charging documents filed in the District Court by the applicant
[6] As already noted, on 19 December 2016 the applicant filed documents in the North Shore District Court to commence a private prosecution against Mr Denmead. The documents filed included three signed charging documents in which the applicant alleged that Mr Denmead had committed the criminal offences of: perjury;3
the making of a false statement;4 and conspiracy to pervert the course of justice.5
3 Crimes Act 1961, s 108.
4 Crimes Act 1961, s 111.
5 Crimes Act 1961, s 116.
The perjury charge
[7] The first proposed charging document alleged that Mr Denmead committed perjury on 21 April 2015, being the date on which he gave his evidence in the civil proceedings before Judge Sharp. The offence description reads:
MALCOM RICHARD DENMEAD gave assertions under oath as to matters of fact in a judicial proceeding by way of a knowingly false affidavit with the intention of deceiving and misleading the Court.
[8] The applicant also filed a related document, which was titled “Sworn Statement of Richard Prescott” in which he set out information in support of the proposed private prosecution and the issuing of a charging document alleging the offence of perjury.6 In the statement the applicant set out a “statement of facts” in which he referred to an affidavit sworn by Mr Denmead and to a transcript of a Police 111 call which had been made during the incident at the motor home on 1
June 2012. Although Mr Denmead’s affidavit and the Police 111 call transcript were referred to as annexures A and B, neither document was in fact annexed to the applicant’s statement. The applicant stated that a comparison of Mr Denmead’s affidavit and the Police 111 call transcripts showed obvious conflicts.
[9] As the information before Judge Down is central to the issue I must determine, I set out below the relevant contents of the applicant’s statement in which he summarised the factual background to the proposed private prosecution:
12.Auckland Council prosecutor Ms Quinn did served [sic] on me Mr Denmead’s affidavit (Annexure “A”) along with the transcript of the Police 111 voice recording (Annexure “B”).
13.When I compared the two documents the affidavit, and the 111 call transcript, there were obvious conflicts between the two documents.
14.The evidence presented at the Auckland District Court hearing before Judge [Sharp] establishes that on 25th March, 2015, Mr Denmead swore the false affidavit and then relied on the false assertions contained therein during a judicial proceeding at the Auckland District Court on the 21st day of April 2015.
6 Although the statement was described as a “sworn statement” it was not sworn. However, the statement does meet the requirements of a formal statement under s 82 of the Criminal Procedure Act 2011 – although the requirements of s 82(1)(b) are expressed less formally than is common.
15. During the hearing, Mr. Denmead was called as a witness by Ms
Quinn.
16.During my cross examination it became [evident] that Mr Denmead’s assertions were false at which point Judge [Sharp] took over the questioning.
17.Under questioning from Judge [Sharp] Mr Denmead admitted that he had made false assertions of fact in his sworn affidavit as proven at page 57 to 59 of the Notes of Evidence as made available during the hearing. (Annexure “C”).
18.The Court record establishes beyond a reasonable doubt that the assertions were knowingly false and were made with the intent to mislead the court.
19.Mr Denmead’s knowingly false assertions constitute an offence under s108 of the Crimes Act 1961 and the Court record proves beyond a reasonable doubt the elements of the perjury charge.
[10] Although annexures A and B were not annexed to the applicant’s statement, annexures C and D were. Annexure C is two pages (pages 57 and 58), of the notes of evidence of the hearing before Judge Sharp. These two pages include a passage of Mr Denmead’s evidence in which he was questioned by Judge Sharp about an inconsistency in his evidence as to whether or not at the time of the incident in June
2012, the Police had been looking to apprehend the applicant for prior offences. Such a statement was said to have been made by Mr Denmead during the 111 call to the Police, whereas in an affidavit prepared for the proceeding he had said that the Police were not interested in the motor home or the applicant. Judge Sharp asked Mr Denmead which of the two conflicting versions was correct. The transcript of the Judge’s questions and Mr Denmead’s responses on the issue includes the following :
Q. Just a minute, they are inconsistent. At 11 of the affidavit you say that, “Tane advised me that the police were not aware of the motor home and that this appeared to be a council matter. That is quite different from what is contained in the second transcript which indicates that – well states quite openly that you had spoken to Tane and this guy was wanted for numerous offences. So why the difference and which one is correct?
A. The transcript will be correct. Q. Will be or is?
A. Is, is correct.
Q. All right, well why have you said something different in the affidavit?
A. Am I expected yes or not to that question? Q. No, no, I am asking you why?
A. Pass.
Q. Excuse me, you do not just pass in a Court of Law. A. Oh.
Q. I am asking you question, why is there a false statement in your affidavit?
A. I can’t answer that, I don’t know, I honestly don’t know.
Q. But you swore this affidavit? A. Yes, yes.
Q. Did you read it first?
A. I obviously did not check the affidavit against the transcript, okay. Q. Well who prepared this affidavit?
A. Our lawyer.
Q. Did you read it before you swore it?
A. Yes, yes Your Honour but I did not compare the transcript to the affidavit.
Q. Nor should you have had to. The question is why you thought it was correct at the time that you swore it and in fact it was quite different to what the transcript says.
[11] In addition to his statement the applicant also filed a “Summons to First Defendant” to which he attached a copy of the proposed charging document, and another document entitled “Plaintiff’s Disclosure to Defendant”. Pages 57 and 58 of the District Court trial notes of evidence were attached to that document.
The false statement charge
[12] The charging document relating to s 111 of the Crimes Act alleged that on 21
April 2015 at Auckland:
MALCOLM RICHARD DENMEAD did swear a false affidavit for use is
[sic] a judicial proceeding
[13] The documents filed by the applicant in relation to the s 111 Crimes Act charge, again comprised a statement made by the applicant of a similar form and nature to the first statement. The applicant stated that Mr Denmead had sworn an affidavit on 25 March 2015 and that the applicant had been served with a copy of the affidavit and a transcript of the Police 111 phone call. He referred to Mr Denmead’s affidavit and the 111 call transcript as being annexed to his statement although once again neither of those documents were in fact annexed. The applicant repeated in his statement the allegations made in his statement in relation to the perjury charge, including that the two documents had obvious conflicts and that:
12.On the 21st day of April 2015 Malcolm Richard Denmead did knowingly give false statements under oath during a judicial proceeding before Judge [Sharp] at the Auckland District Court.
13.Under questioning from Judge [Sharp] Mr Denmead admitted that he had given false testimony as proven at page 57 to 59 of the Notes of Evidence as made available during the hearing (Annexure “C”).
14.Mr Denmead knew that his affidavit was false, he admitted this on the Court record before a District Court Judge and that Court record proves beyond a reasonable doubt the elements of the false statements or declarations charge.
15. Mr Denmead’s false statements constituted an offence under s111 of
the Crimes Act 1961 – False statements or declarations.
[14] Again, the applicant also filed a “Summons to First Defendant” in relation to this charge7 to which was annexed a copy of the proposed charging document, and a “Disclosure to Defendant” document with which he enclosed pages 57 and 58 of the trial transcript.
Conspiracy charge
[15] The applicant also filed a similar set of documents in relation to the conspiracy charge. He filed a signed charging document alleging the commission of an offence against s 116 of the Crimes Act on 21 April 2015 at Auckland, the offence
description being that:
7 I note that the summons, both for this charge and for the conspiracy charge. incorrectly refers to the charge as being the offence of perjury.
MALCOLM RICHARD DENMEAD conspired through the use of knowingly false affidavit to obstruct, prevent, pervert, or defeat the course of justice.
[16] As with the other charges the applicant also filed a statement. In this document he set out a statement of facts which was substantially the same as for the other charges, and relevantly states:
12.On the 21st day of April 2015 Malcolm Richard Denmead did knowingly rely on the false assertions of fact during a judicial proceeding before Judge [Sharp] at the Auckland District Court.
13.Under questioning from Judge [Sharp] Mr Denmead admitted that he had given false assertions as proven at page 57 to 59 of the Notes of Evidence as made available during the hearing. (Annexure “C”).
14.Mr Denmead knew that his sworn affidavit was false; he admitted as much on the Court record and the Court record proves beyond a reasonable doubt the elements of the conspiring to defeat justice charge.
15.The Court record establishes beyond a reasonable doubt that the assertions were knowingly false and were made with the intent to mislead the court and defeat justice.
16.Mr Denmead’s false assertions constituted an offence under s116 of the Crimes Act 1961 – “Conspiring to Defeat Justice”.
[17] Again, although pages 57 and 58 of the notes of evidence were annexed to the statement as annexure C, the applicant did not attach Mr Denmead’s affidavit as annexure A, or the Police 111 voice call transcript as annexure B notwithstanding that the documents were referred to as being annexed.
[18] The applicant also filed a “Disclosure to Defendant” document with which he again annexed copies of pages 57 and 58 from the District Court trial transcript, and a “Summons to First Defendant” document naming Mr Denmead and attaching a copy of the proposed charging document.
The Registrar refers the documents to a District Court Judge
[19] On 4 January 2017, the Registrar referred the documents that the applicant sought to file to Judge Down. On 27 January 2017 Judge Down issued written directions to the Registrar pursuant to s 26(3) of the Criminal Procedure Act that all three charging documents must not be accepted for filing.
[20] In his decision Judge Down said:
[4] In the present case, Mr Prescott has filed with the charging documents the evidence on which he seeks to rely. That consists of a sworn statement made by Mr Prescott together with some attachments; in particular, various excerpts from the transcribed evidence in the civil proceeding. Given that the allegations made by Mr Prescott and the nature of the civil proceeding and decision of the District Court Judge in that civil proceeding, I have formed the view that Mr Prescott is unlikely to be able to be [sic] file any other evidence and I therefore proceed to the second stage of the process by applying s 26(3).
[21] As is apparent from that excerpt, Judge Down determined not to exercise the power conferred in s 26(1)(b) to direct the applicant to file formal statements and the exhibits referred to in those statements forming the evidence that the applicant proposed to call at trial and which were considered as being evidence that the applicant considered sufficient to justify a trial.
[22] Having decided not to direct the filing of formal statements, Judge Down proceeded to determine whether the charging documents should be accepted for filing. Judge Down said:
[5] The portions of the transcribed evidence that are appended to the proposed charging documents demonstrate that during the course of the civil trial the evidence of Malcolm Denmead was rather erratic and inconsistent. It is further clear in those excerpts that Her Honour Judge Mary-Beth Sharp formed the opinion that Mr Denmead’s evidence was unreliable on a number of matters, including situations where he had said one thing in the sworn statement and another during the hearing.
[6] It is one thing to concede that one is mistaken or has made a false statement previously, but quite another thing to elevate that to criminal behaviour and apply the description of perjury or attempting to pervert the course of justice.
[7] The test that applies in both perjury and false statement charges is that the witness makes an assertion in a judicial proceeding which he or she knows to be false by which he or she intends to mislead the Court. I anticipated that Judge Sharp may be able to shed greater light on the view that she took of Mr Denmead’s evidence. I therefore obtained the Judge’s notes of her decision at the conclusion of the trial.
[23] Judge Down then set out extracts from Judge Sharp’s oral judgment delivered on 21 April 2015 in which her Honour concluded that Mr Denmead had “really quite forgotten what happened”, before concluding:
[9] Judge Sharp clearly formed the view that Mr Denmead’s evidence was wholly unreliable, but attributed that to the passage of time and the poor memory of Mr Denmead. She made the specific point that she did not believe that he was being deliberately untruthful.
[10] Consequently, pursuant to s 26(3) I conclude that I must issue a direction that the charging documents in relation to the proposed charge of perjury and one of making a false statement must not be accepted for filing, because I consider that the evidence provided by the proposed private prosecutor is insufficient to justify a trial. I have, I am afraid, also concluded that this proposed prosecution is motivated more by personal disappointment, and perhaps feelings of animosity, than by any sense of public duty in bringing criminal behaviour before the Court. I therefore conclude that to allow this prosecution to proceed would amount to an abuse of process.
[24] Judge Down then turned his attention to the charge of conspiring to pervert the course of justice. He concluded:
[11] … Not only is the prosecution on this charge hampered by the same features which have proven fatal to the charges of perjury and making a false statement, but it is also hard to see any basis or evidential foundation for the suggestion that Mr Denmead has conspired with any other person for the purposes of perverting the course of justice.
The learned Judge noted that “the course of justice” encompasses all judicial
proceedings including civil proceedings and then stated:
[15] Having reached that conclusion, I am satisfied that there is nothing technically wrong with a charge of conspiring to pervert the course of justice arising out of evidence given in the course of a civil trial, as here. However, given a total absence of evidence to support an allegation of conspiracy, together with my finding that the actions of Mr Denmead in the course of the civil trial cannot be characterised as criminal, I am satisfied once again that I should issue a direction that the charging document must not be accepted for filing because the evidence provided is insufficient to justify a trial; and because in my judgment the proposed prosecution would amount to an abuse of process.
Submissions of the applicant
[25] The applicant’s application for review, which was described as a statement of claim, contained a combination of pleading and what were effectively submissions. At the hearing, he presented oral submissions and spoke to further written submissions set out in a memorandum. In the application, the applicant pleads that Judge Down made errors of law in the course of determining and directing the Registrar that the charging documents must not be accepted for filing. The pleadings, although rather discursively expressed, can be summarised as in substance including the following errors of law:
(a) Breach of natural justice and s 27 of the New Zealand Bill of Rights
Act 1990.
(b) The Judge erred by misinterpreting the legislative intention behind ss
108, 111; and 116 of the Crimes Act 1961;
(c) The Judge erred by relying on the conclusions of Judge Sharp that, while Mr Denmead’s evidence was wholly unreliable, that could be attributed to the passage of time and his poor memory and that she did not believe that he was being deliberately untruthful;
(d)The Judge erred by failing to take into account irrefutable evidence before him in the form of the Court record, which clearly showed that Mr Denmead knowingly and wilfully made up material facts;
(e) The Judge erred by finding that, notwithstanding the irrefutable proof presented to show that Mr Denmead had made knowingly false statements in his evidence, that the passage of time and his poor memory were a valid, lawful excuse and that the prosecution should not proceed.
[26] The applicant also pleaded that the Judge made an error of fact, namely:
(a) by concluding that the applicant’s proposed private prosecution was motivated by personal disappointment and perhaps feelings of animosity rather than by any sense of public duty in bringing criminal behaviour before the Court.
[27] In his oral submissions, the applicant said that the Judge had unreasonably relied on Judge Sharp’s findings as to the explanation for the demonstrated inconsistencies within Mr Denmead’s evidence, and that he had erred by referring to Judge Sharp’s findings and taking them into account in determining whether there was sufficient evidence to justify a trial.
[28] In his written and oral submissions, the applicant took issue with Judge Down’s comments as to his motives for bringing the private prosecution. He submitted that his background of public service as a former member of the Fire Service demonstrated his commitment to serving the public interest. He said that he had a strong sense of right and wrong and that he was motivated by a wish to keep society safe by bringing those responsible for criminal conduct before the Court. The applicant said that prior to filing the private prosecution documents he had unsuccessfully endeavoured to have his complaint accepted by the Police. He said that he was told that the Police did not like to take complaints about Council employees.
[29] In his written and oral submissions, the applicant acknowledged that he was unable to present any evidence as to Mr Denmead having conspired with anyone regarding the contents of his affidavit. Accordingly he said he would not proceed or continue with the conspiracy charge.
[30] The applicant submitted that the evidence he had filed and presented to the District Court showed that Mr Denmead had knowingly made false statements in giving evidence before Judge Sharp. He said that if Mr Denmead had been unable to remember the details of the relevant matters, he would have said so. However, he had asserted his account of the events as being accurate and it had been shown to be inconsistent with his other earlier statements.
Submissions for the second respondent
[31] Mr Speir for Mr Denmead submitted that the key issue for determination was whether Judge Down made an error of law when he looked beyond the formal statement and exhibits filed by the applicant. He said that if the Court was to interpret s 26 as meaning that Judge Down was only able to refer to and consider the material filed by the applicant in determining whether there was sufficient evidence to justify a trial, then it would naturally follow that the Judge had made an error of law.
[32] He submitted that the answer to that question would depend on how strictly s 26 of the Criminal Procedure Act was interpreted. He referred to two High Court decisions which he said had adopted different interpretations.
[33] In HT v The District Court at Auckland Brewer J considered whether it was lawful for a District Court Judge determining the sufficiency of evidence pursuant to s 26, to have regard to the contents of a 300-page affidavit filed by the intending private prosecutor.8 The District Court Judge did consider the contents of the affidavit and concluded that there was sufficient evidence to allow the charging documents to be filed. In the application for judicial review of the District Court Judge’s decision, the applicants argued that the material to be considered by the Judge acting pursuant to s 26 was limited to any formal statements or exhibits filed
by the intended private prosecutor. It was argued that the “formal statements” referred to in s 26(1)(b) and s 26(2), must comply with the prescriptive requirements for formal statements contained in s 82 of the Act.
[34] Brewer J noted that it appeared that the Judge had not utilised the power contained in s 26(1)(b) to direct that the intended private prosecutor file formal statements and exhibits but had considered the application and the affidavit. Brewer J said:
[24] The purpose of s 26 of the Act is to engage the oversight of a District Court Judge in appropriate cases when a private prosecutor seeks to file a charging document. In such cases, the section envisages an attempt to file a
8 HT v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459.
charging document, a reference by the Registrar to a Judge, a direction by the Judge that formal statements be provided and a decision by the Judge, referring to the formal statements thus provided, whether the charging document should be accepted for filing. That process was not followed in this case.
[25] Section 26 is specific in its direction as to what material a Judge can take into account in deciding whether there is sufficient evidence to justify a trial. There is good reason for that. A person who knows that his or her statement is being taken for the purpose of a Court proceeding, and that they are a potential witness in a criminal trial, is likely to be careful in giving the statement and declaring it to be true. Further, the provision of a formal statement indicates that the person giving it is available to be a witness.
….
[30] In my view, when the Registrar referred Mr Nottingham’s application and supporting affidavit to him, the Judge should have followed the s 26 procedure. He should have directed Mr Nottingham to file the formal statements (and the exhibits referred to in those statements) of the witnesses he proposes to call to prove the proposed charges. He did not. Instead, he relied on Mr Nottingham’s affidavit and the annexures to it. He was not entitled to do that.
…
[32] I conclude that the Judge made errors of law in failing to comply with the s 26 procedure and in taking into account Mr Nottingham’s affidavit for the purposes of his s 26 jurisdiction. The result is that the Judge erred in deciding that there was sufficient evidence to justify putting Mrs H and Mr T on trial.
[35] The second decision relating to s 26 and referred to by Mr Speir was Mitchell v Porirua District Court in which the applicant sought judicial review of a District Court Judge’s decision rejecting her charging document to commence a private prosecution of three Corrections Officers on proposed charges of theft and assault.9
Upon receipt of the applicant’s private prosecution documents, the Registrar of the Porirua District Court referred them to a Judge, who then directed a hearing for the proposed defendants to be given an opportunity to be heard on the issue of whether the evidence was sufficient to justify a trial and whether the proposed prosecutions were an abuse of process. Cull J observed that the critical issue was whether the District Court Judge’s omission to direct the private prosecutor to file formal statements and exhibits that contained the evidence that she proposed to call at trial was an error of law. During that hearing the Judge granted leave to the private
prosecutor to file any further exhibits she relied on in respect of one of the charges.
9 Mitchell v Porirua District Court [2017] NZHC 1331, [2017] NZAR 1077.
[36] Cull J considered the consequences of the Judge’s omission to direct the private prosecutor to file formal statements and exhibits pursuant to s 26(1)(b). Her Honour said:10
[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 of form in a Court order, it does not necessarily follow that invalidity is the inevitable consequence.
……
[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.
….
[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. 11
…
[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.
[37] Mr Speir submitted that the Mitchell decision demonstrates that the s 26 procedure is more flexible than as found by Brewer J in HT v The District Court at
10 Footnotes omitted.
11 Sestan v Auckland District Health Board (2006) 26 FRNZ 784 (HC) at [43].
Auckland. Relying on Mitchell, he submitted that a technical breach of the s 26 procedure that is inconsequential and minimal may not necessarily invalidate the Judge’s decision.
[38] Mr Speir further submitted that while there is no question that Judge Down went beyond the statement and materials filed by the applicant, the Judge appears to have taken that action out of necessity and in order to fill the gaps that the applicant had failed to address.
[39] He further said that Judge Sharp’s assessment of the quality of Mr Denmead’s evidence given before her would be critical in deciding whether there was sufficient evidence to justify a trial on the proposed charges, He said that, had Judge Down directed the applicant to file formal statements and exhibits, he may well have sought to introduce Judge Sharp’s Judgment himself.
[40] Finally, Mr Speir submitted that whether or not this Court found that Judge Down had made an error of law, the ultimate outcome would be the same, as there is insufficient evidence for the applicant to prove the essential elements of the charges he seeks to file. He said that because the evidence originally filed by the applicant cannot be improved upon, the insufficiency of evidence to justify a trial on the charges, as determined by Judge Down, cannot be remedied. Mr Speir submitted that the only evidence that the applicant could possibly present in order to prove the essential element of intention would be the contents of the notes of evidence of the hearing before Judge Sharp, and which evidence Her Honour determined to be wholly unreliable. He said that the applicant’s case and the evidence to support the charges he wishes to file cannot get any better than that. If it could, the applicant could have been expected to have referred to any additional evidence in the statement he filed with the charging documents.
[41] Mr Speir submitted that the applicant is endeavouring to re-litigate the underlying issues of his unsuccessful civil claim, which he said might also amount to an abuse of process. He contended that if the charges were permitted to be filed, it is inevitable that they would be swiftly dismissed pursuant to s 147 of the Act. Accordingly, he says that even if the Court finds that the Judge made an error of law,
the appropriate outcome of the judicial review would be for the Court to exercise its discretion and not grant relief as there is insufficient evidence to justify a trial on the proposed charges.
Analysis
[42] As noted in Mr Speir’s submissions on behalf of Mr Denmead, Brewer J in
HT v The District Court at Auckland observed:12
Section 26 is specific in its direction as to what material a Judge can take into account in deciding whether there is sufficient evidence to justify a trial. There is good reason for that.
[43] In relation to the case before him, Brewer J referred to the requirement for the filing of formal statements by potential witnesses in a criminal trial and the likely care that would be given to the contents of such statements which are required to be declared to be true and correct. In this case it is significant that, in each case the “sworn statement” which accompanied the proposed charging document referred to documentary exhibits which were not in fact annexed to the statements. Mr Denmead’s affidavit, which was said to contain a statement inconsistent with his evidence given at the civil trial, was not attached as annexure A. Similarly, the transcript of the Police 111 call was not annexed. Thus the evidential basis upon which the proposed private prosecution was to be founded was not properly and completely before the Court. In this case, rather than overlooking s 26(1)(b) the learned Judge concluded that issuing a direction pursuant to that subsection would be unlikely to result in any further information being provided. It is clear from the contents of the applicant’s sworn statements that he was likely to have access to other evidence including a copy of the Mr Denmead’s affidavit and a copy of the Police 111 call transcript. Furthermore the applicant had made limited disclosure of only two pages from the trial transcript of evidence. The remainder of the trial transcript may have been relevant to an assessment of the cogency of the allegations
that were proposed to be made against Mr Denmead.
12 HT v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459 at [25].
Consideration and reliance on Judge Sharp’s judgment
[44] The learned Judge went beyond the materials provided by the applicant and obtained a copy of Judge Sharp’s judgment in the civil proceeding from which the allegations of criminal offending arose. Judge Down identified and relied upon that part of Judge Sharp’s judgment in which she expressed her view that she was unable to rely upon Mr Denmead’s evidence, not because she disbelieved him but because there were so many inconsistencies in his evidence that Judge Sharp “was drawn to the conclusion that with the passage of time he has really quite forgotten what
happened”.13 Judge Down said:14
She made the specific point that she did not believe that he was being deliberately untruthful.
Judge Down then went on to say:15
Consequently, pursuant to s 26(3) I conclude that I must issue a direction that the charging documents in relation to the proposed charge of perjury and one of making a false statement must not be accepted for filing, because I consider that the evidence provided by the proposed private prosecutor is insufficient to justify a trial. I have, I am afraid, also concluded that this proposed prosecution is motivated more by personal disappointment, and perhaps feelings of animosity, than by any sense of public duty in bringing criminal behaviour before the Court. I therefore conclude that to allow this prosecution to proceed would amount to an abuse of process.
[45] Consequently, it is apparent that Judge Down was significantly influenced by Judge Sharp’s conclusion on Mr Denmead’s inconsistent evidence. On that basis Judge Down concluded that the evidence provided by the applicant in support of the proposed private prosecution was insufficient to justify a trial.
[46] The provisions of s 26 are, in my view, prescriptive. They set out the procedural steps to be undertaken by the Registrar upon receipt of a private prosecution charging document. Where the Registrar decides not to accept the charging document for filing, he or she is required to refer the matter to a District Court Judge for direction pursuant to s 26(1)(b). Upon receipt of formal statements
and exhibits filed in accordance with such a direction, the Registrar is required to
13 At [24].
14 At [9].
15 At [10].
refer them to a Judge “who must determine whether the charging document should be accepted for filing”. In my view, it is clear that the Judge’s decision as to whether the formal statements and exhibits filed by a proposed private prosecutor are sufficient to justify a trial is a question to be determined by reference to the documents filed in accordance with s 26(1)(b).
[47] When the s 26 procedural sequence is followed and s 26(1)(b) employed to direct the filing of formal statements, the Judge will then be in a position to make an informed decision as to the sufficiency of the evidence. By omitting to comply with that step in the procedure, the Judge has denied the private prosecutor the opportunity of putting his evidence forward for consideration. That is, in my view, much more than a technical requirement. Its function and clear purpose is to ensure that the private prosecutor puts forward evidence with the form and quality of formal statements which are declared by the witnesses to be true and made with knowledge that their statements will be used in court proceedings. Until that step in the process has been followed, any decision by the Judge is premature and deprives the private prosecutor of the opportunity to place all and any evidence they consider relevant before the Court. The opportunity afforded to a private prosecutor by s 26(1)(b) is, in my view, a legislative recognition of their right to be heard and the observance of the principles of natural justice as confirmed by s 27 of the New Zealand Bill of Rights Act 1990.
[48] Where the Court omits that step and obtains and considers other material not originally submitted by the private prosecutor, the prejudice to the private prosecutor is compounded. The Judge will be making the decision on the basis of information that the private prosecutor has no knowledge of and, consequently, no opportunity to comment on. Accordingly, in my view such an omission is an error of law. It is not merely a technical and procedural step but a matter of legal significance that is intended to ensure that the principles of natural justice are complied with.
The effect of s 50 of the Evidence Act
[49] Here the decision made by the Judge regarding the sufficiency of the evidence presented by the applicant was substantially founded upon a conclusion
reached by another Judge when determining the civil proceeding. Section 50(1) of the Evidence Act 2006 provides:
Evidence of a judgment or a finding of fact in a civil proceeding is not admissible in a criminal proceeding or another civil proceeding to prove the existence of a fact that was in issue in the proceeding in which the judgment was given.
[50] In Dorbu v The Lawyers and Conveyancers Disciplinary Tribunal Brewer
J, speaking of s 50 of the Evidence Act said:16
Put simply, if a court or tribunal has an independent obligation to determine whether alleged facts are proved or not, it cannot discharge that obligation by accepting without inquiry the findings of another court or tribunal as to the existence of those facts. To do that would be to abdicate its responsibility to determine the facts for itself.
[51] In the civil proceedings before Judge Sharp the credibility and reliability of Mr Denmead’s evidence was central and clearly in issue. Judge Sharp’s finding that his evidence was wholly unreliable cannot be treated as admissible evidence in the context of a criminal prosecution of Mr Denmead on charges of perjury and making a false statement. Another way of looking at this would be to consider the position that would arise where a Judge in deciding a civil case found a witness to have been deliberately giving evidence that was untrue. Such a finding would not be admissible evidence in a prosecution of that witness for perjury.
[52] Accordingly, not only did Judge Down make a decision based on information that the applicant was unaware he was taking into account, he took account of information that would not qualify as admissible evidence in a criminal prosecution. That was a further error of law made by the Judge in reaching his decision.
Conclusion
[53] Having regard to the prescriptive requirements of s 26(1)(b) of the Act, I consider that Judge Down made an error of law in determining whether there was sufficient evidence to justify a trial by reference to the documents filed by the
applicant without directing the applicant to file formal statements and exhibits.
16 Dorbu v The Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-
Furthermore, I consider that Judge Down erred by obtaining and having regard to Judge Sharp’s decision regarding the inconsistencies in Mr Denmead’s evidence and the explanation for them.
[54] This is not a case where it would be appropriate to exercise the Court’s discretion to decline to grant the applicant relief, notwithstanding the finding of errors of law. The right of private individuals to bring a private prosecution is an important right with constitutional significance as well as being in accordance with the rule of law. A private citizen’s ability to commence a private prosecution is not unfettered. Before a private prosecution is accepted for filing and the process commenced, the s 26 procedure provides for the charge to be scrutinised and evaluated by a Judge to ensure that it is based on sufficient evidence and that it is not an abuse of process. The decision of the Judge must be undertaken in accordance with the requirements of the Act, and on the basis of formal statements and exhibits filed by the private prosecutor. If, having considered that evidence, the Judge considers it to be insufficient to justify a trial on the charges, the filing will be rejected. If, however, the Judge concludes that the evidence presented by the private prosecutor is prima facie sufficient to justify a trial, there are still further hurdles that the private prosecution must clear before a trial will take place. In some instances there may be material that leads a judge to consider it appropriate to direct that the proposed defendants be served with the papers filed and be given an opportunity to be heard before making a decision to accept the private prosecution charging
documents for filing.17 I make no finding as to whether such a step is appropriate in
this case. That is a matter to be considered by the District Court Judge after receiving the formal statements and exhibits.
The Judge’s comments on the applicant’s motivations
[55] By way of further relief, the applicant seeks an order “that the statements made in the Judge’s conclusions at paragraph 10 of his Directions as to my reason
for my private prosecution be struck from the record”.
17 See, for example, HT v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459
[56] In the relevant paragraph of the Judge’s decision, the Judge concluded that the charging documents for the proposed charges of perjury or making a false statement must not be accepted for filing because there was insufficient evidence to support them. The Judge then stated:18
I have, I am afraid, also concluded that this proposed prosecution is motivated more by personal disappointment, and perhaps feelings of animosity, than by any sense of public duty in bringing criminal behaviour before the Court. I therefore conclude that to allow this prosecution to proceed would amount to an abuse of process.
[57] An application for judicial review will engage the challenged decision, but not each and every conclusion reached by the decision maker which led to the challenged decision. The reasons and conclusions of the decision maker may disclose an error of law upon which the challenge to the decision is founded, but it is the decision itself that is the focus of the Court’s judicial review. In Arbuthnot v
Chief Executive of the Department of Work and Income, the Supreme Court said:19
It is fundamental that an appeal must be against the result to which a decision-maker has come, namely the order or declaration made or other relief given, not directly against the conclusions reached by the decision- maker which led to that result, although of course any flaws in those conclusions may provide the means of impeaching the result. A litigant cannot therefore, save perhaps in very exceptional circumstances, bring an appeal when they have been entirely successful and do not wish to alter the result. The successful litigant cannot seek to have the appeal body overturn unfavourable factual or legal conclusions made on the journey to that result which have had no significant impact on where the decision-maker ultimately arrived. In short, there is no right of appeal against the reasons for a judgment, only against the judgment itself.
[58] While the Supreme Court was referring to an appeal and not judicial review, I consider that the same principle applies as regards conclusions reached by the decision maker where the decision is challenged by way of judicial review.
[59] Of course, in this application for judicial review, the applicant not only challenges the result of the judgment, but also by this particular claim for relief seeks to have the contents of paragraph [10] of the decision “struck from the record”. That
is not a challenge to the result. It is a challenge to a factual finding of the Judge – not
18 At [10].
19 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1
NZLR 13 at [25].
the conclusion reached on the basis of that factual finding. While it may, very rarely, be appropriate to order the removal of certain findings in exceptional circumstances.20 I do not consider that in this case there are any such exceptional circumstances.
[60] Accordingly, there is no basis upon which it would be appropriate to make an order striking the Judge’s comments regarding the applicant’s reasons or motives from the record. I decline to grant the applicant any relief in that respect.
Relief
[61] The applicant has succeeded in demonstrating that Judge Down’s decision was wrong in law by reason of a failure to adhere to the requirements of s 26 and further by taking into account material outside of s 26. The applicant seeks as relief an order that the District Court accept the private prosecution charging documents for filing. However, having regard to my finding, I consider that such an order would not be appropriate given the insufficiency and omissions from the material filed by the applicant in the District Court. I consider that the proper course and appropriate relief in these circumstances is as follows:
(1) An order setting aside the decision of Judge Down dated 27 January
2017 as it relates to the proposed charges of perjury and making a false statement. As the applicant does not wish to pursue the conspiracy charge, no relief is appropriate in relation to it.
(2)An order that the Registrar refer the applicant’s private prosecution documentation to a District Court Judge for direction pursuant to s 26(1)(b).
(3)An order that the District Court Judge thereafter consider such formal statements and exhibits as may be filed by the applicant in accordance with the direction to determine whether the charging documents
should be accepted for filing.
20 Y v Director of Proceedings [2016] NZHC 2054 at [61].
[63] The question of costs is reserved. The applicant is to file and serve a memorandum as to costs within 10 working days of delivery of this Judgment. The respondent is to file a memorandum in reply within five working days following service of the applicant’s costs memorandum. The memoranda are not to exceed
three pages in length. Thereafter, I shall determine the matter of costs on the papers.
Paul Davison J
11