Rameka v Attorney-General
[2021] NZHC 798
•13 April 2021
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-80
[2021] NZHC 798
BETWEEN TE IWI NGARO RAMEKA
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
HON. CHRIS HIPKINS
Second DefendantHON. ANDREW LITTLE MINISTER OF JUSTICE
Third DefendantHON. STUART NASH MINISTER OF POLICE
Fourth Defendant
RT. HON. JACINDA ARDERN PRIME MINISTER
Fifth Defendant
TRAVIS CLARKE SADLER
Sixth Defendant
Hearing: 13 April 2021 at 10:00am Appearances:
Plaintiff in person
Lilla Dittrich and Vicki McCall for the Defendants
Judgment:
13 April 2021
JUDGMENT OF ASSOCIATE JUDGE R M BELL
Solicitors:
Crown Law (Lilla Dittrich/Vicki McCall), Wellington, for the Defendants
Copy for:
Mr Te Iwi Ngaro Rameka, Tautoro, Kaikohe, Northland 0474
RAMEKA v ATTORNEY-GENERAL [2021] NZHC 798 [13 April 2021]
[1] The Attorney-General, the first defendant, applies to strike out the statement of claim on the ground that the proceeding is an abuse of process as a collateral challenge to criminal proceedings taken against Mr Rameka. The application is made under r 15.1(1) of the High Court Rules 2016 and the Court’s inherent jurisdiction.
[2] The abuse of process the Attorney-General relies on is that stated by Lord Diplock in Hunter v Chief Constable of the West Midlands Police:1
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff, which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
In that case, the plaintiffs had been found guilty of very serious crimes – murder – and had brought proceedings alleging assault by the police officers who had arrested them and prosecuted them. They were held not entitled to bring civil proceedings which challenged the convictions entered against them after a trial.
[3] That principle has been followed in New Zealand courts. In Commissioner of Police v Geddes, Andrews J referred to the Court of Appeal’s decision in McLachlan v Vector Ltd2 and said:3
[51] Proceedings which can be regarded as being a collateral attack on earlier proceedings are those where in the later proceeding a plaintiff squarely calls into question a matter that has already been litigated and decided upon in earlier proceedings, and where the intending plaintiff had a full opportunity to contest the matter in the Court in which the matter was decided.
[52] As the Court of Appeal held in McLachlan v Vector Ltd, there are two questions to be determined:4
(a)Is the Commissioner’s application a collateral attack against an earlier judgment? and
1 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.
2 McLachlan v Vector Ltd CA157/05, 28 February 2006 at [27]–[30].
3 Commissioner of Police v Geddes [2013] NZHC 1199 at [51]–[52].
4 McLachlan v Vector Ltd CA157/05, 28 February 2006 at [28].
(b)Does justice require that the Commissioner be prevented from pursuing his application for an assets forfeiture order?
[4] Now for this case. Following a jury trial in April 2019 in the District Court at Kaikohe, Mr Rameka was found guilty of cultivating cannabis. He was convicted and sentenced to 9 months’ supervision and 350 hours of community work. In the jury trial he was represented by a lawyer. He had earlier been tried before a judge alone, but he challenged that conviction on the ground that he wanted to be tried before a jury. Downs J set aside the conviction in his decision of 26 October 2017 and ordered a re-trial before a jury.5
[5] Mr Rameka challenged a search warrant which the police had executed when they entered his home address and found cannabis growing there. Mr Rameka’s lawyer made a pre-trial application to set aside the search warrant and have the evidence obtained under the warrant declared inadmissible on the grounds that there was not the requisite authority for the warrant to issue. In his decision of 5 March 2019, Judge de Ridder upheld the validity of the warrant and held the evidence was admissible.6 Mr Rameka’s lawyer also applied for disclosure of the warrant. Judge de Ridder ordered that parts of the warrant could be disclosed, with other parts covered up.
[6]Mr Rameka was also represented on sentencing on 31 July 2019.
[7] Mr Rameka appealed to the Court of Appeal against his conviction, but not against his sentence. The Court of Appeal dismissed his appeal in its decision of 23 March 2020.7 It found that Mr Rameka’s defence had been put to the jury and also to the police in the trial. Mr Rameka’s defence was that the cannabis that the police had found under the search warrant was not his own. Instead it belonged to the person who had given the police the information for the search warrant – a relative and the occupier of a nearby property. Mr Rameka had seen the police searching that person’s property the day before his own property was searched. Mr Rameka believes that the cannabis found on the property really belonged to his relative, and that this relative
5 Rameka v Police [2017] NZHC 2622.
6 R v Rameka [2019] NZDC 3890.
7 Rameka v The Queen [2020] NZCA 75.
had deflected the police’s attention onto Mr Rameka by informing on him (Mr Rameka). The person had not been prosecuted, even though Mr Rameka believed that the police had found the cannabis on his property as well. Mr Rameka has repeated those allegations in his statement of claim.
[8] The Court of Appeal recorded Mr Rameka’s contention and, having reviewed the conduct of the trial, was satisfied that Mr Rameka had been properly convicted after the hearing before the jury, at which he had been legally represented. Mr Rameka also sought leave to appeal the decision of the Court of Appeal, but the Supreme Court dismissed his application for leave.8
[9] Mr Rameka has drawn up the statement of claim himself. In many ways it is irregular and defective, but the defendants have not concerned themselves with the procedural deficiencies. Instead, they base the application on the fact that Mr Rameka in this present proceeding is challenging his conviction.
[10] Mr Rameka’s statement of claim pleads a background and then pleads various matters as causes of action:
Causes of action:
1. On 19 January 2016, at 6206 Mangakahia Road, police executed a search warrant on a registered informant’s residence, but did not charge informant with any offences relating to cannabis plants cultivated there, police then obtained a search warrant through using false information supplied by informant to frame and charge me with the offence of cultivating cannabis located at my residence, which the informant is the owner and cultivator of.
2. On 20 January 2016, when requesting a statement from me, police at no stage did they ask me who owned and cultivated the cannabis plants located at my residence. Police destroyed my evidence of the cultivated plants being cultivated, when I had informed them to take the cannabis plants to the informant’s residence and it will show the cannabis plants came from there.
3. Police did not have any proof or evidence of documents, photos, fingerprints that will show I was cultivating the cannabis plants located at my residence.
8 Rameka v The Queen [2020] NZSC 44.
4. Courts denied me a fair trial throughout the case and withheld my evidence of the search warrant along with the police to prove my innocence.
5. Legal representation was denied through lawyers representing legal aid services rather than me at various stages of the case demeriting my case.
6. Complaints laid through various agencies complaint procedures were either dismissed or denied while others are still proceeding.
[11] In the hearing today, Mr Rameka complained about not having seen the search warrant. I am not sure that he clearly understands the procedures in the District Court. I had some discussion with him about Judge de Ridder’s decision of 5 March 2019. Mr Rameka did not seem to understand that his lawyer had challenged the search warrant and that the evidence under the search warrant had been found to be admissible and could be used against him. The extent to which Mr Rameka and his lawyer could see what was in the warrant had been the subject of a considered judicial decision. The decision was final. It was not open to Mr Rameka in this proceeding to challenge the Police’s authority to enter onto his property, or to challenge again the validity of the search warrant.
[12] Mr Rameka contends that the Police had no evidence to support the charges against him. That is belied by the fact that a jury did accept the Police evidence. It is not open to this court to take a different view from the jury.
[13] Mr Rameka complains that he did not have a fair trial, but I note that he did have a lawyer represent him at the trial and on sentencing. The Court of Appeal did not find anything to suggest that the way the trial had been conducted resulted in a miscarriage of justice.
[14] The point of the defendant’s application is that there should be some finality. Mr Rameka has used the appeal rights available to him to challenge his conviction, but he has been unsuccessful. He cannot, by bringing a civil proceeding, try to obtain a result that is inconsistent with the decisions made by the courts in their criminal jurisdiction. Allowing him to do so does amount to a collateral challenge and is an abuse of process.
[15] I am satisfied, in terms of the principles stated in Hunter and in Commissioner of Police v Geddes, that this case does amount to a collateral challenge to the decisions of the criminal courts. It would be an abuse of process to allow this proceeding to continue.
[16] Accordingly, I grant the Attorney-General’s application. I strike out the statement of claim and dismiss the proceeding.
…………………………………….
Associate Judge R M Bell
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