Rider v District Court, Auckland
[2021] NZHC 1967
•30 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2020-404-1343
[2021] NZHC 1967
IN THE MATTER OF An application for judicial review under the Judicial Review Procedure Act 2016 BETWEEN
BRETT PHILIP RIDER
Applicant
AND
DISTRICT COURT, AUCKLAND
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 31 May 2021 Appearances:
K J Crossland for the Applicant
Z R Hamill for the Second Respondent
Judgment:
30 July 2021
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 30 July 2021 at 4:00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
RIDER v DISTRICT COURT, AUCKLAND [2021] NZHC 1967 [30 July 2021]
[1] Mr Rider was charged with careless driving causing injury.1 His counsel was subsequently advised by counsel for the Police that the charge would be withdrawn. Two days later his counsel was told that decision had been reviewed and the prosecution would continue.
[2] Mr Rider applied under s 147 of the Criminal Procedure Act 2011 for the charge to be dismissed on the ground of abuse of process. On 28 May 2020, in the District Court at Auckland, Judge E M Thomas refused the application.2
[3]Mr Rider applies for judicial review of that decision.
Background
[4] On 10 September 2019, Mr Rider was driving his van along Tripoli Road in Point England. It was about 4.00pm. He approached a pedestrian crossing. A ten- year-old child ran across the pedestrian crossing, which was outside her school. Mr Rider was unable to stop in time and struck her with the van. She suffered serious physical injury. She was taken to hospital by ambulance.
[5] Mr Rider was charged by the Police with careless driving causing injury. He made his first appearance in the Auckland District Court on 9 December 2019.
[6] Mr Rider considered he had not been at fault. His view was that when the child ran onto the crossing, his van was already too close for him to be able to stop and avoid hitting her. Mr Rider engaged an expert mechanical engineer, Mr Andrew McGregor, to determine whether, if he had seen the child the moment she reached the crossing, Mr Rider could have braked earlier to avoid hitting her.
[7] Mr McGregor conducted an investigation and prepared a comprehensive peer- reviewed report. He concluded that (among other things) even if Mr Rider had seen the child the moment she reached the crossing, it was unlikely that any driver
1 Land Transport Act 1998, s 38. Maximum penalty: three months’ imprisonment or a fine not exceeding $4,500 and disqualification for six months or more.
2 Police v Rider [2020] NZDC 11617.
complying with the speed limit and driving a functional vehicle could have braked earlier and thereby avoided hitting her.
[8] On 17 March 2020, following prior discussions between them, Mr Rider’s counsel provided a copy of Mr McGregor’s report to a solicitor in the Police Prosecution Service, Ms Lotriet. He provided the report on a without prejudice basis to enable Ms Lotriet to review it with the Police crash expert for the purpose of deciding whether the charge would be withdrawn.
[9] On 12 May 2020, Ms Lotriet emailed Mr Rider’s counsel. She told him that once he provided a signed copy of Mr McGregor’s brief “I will be seeking leave to withdraw the charge”. She said the decision had been made on advice from the Police crash expert. Ms Lotriet sent another email later that day, noting she already had a signed copy of Mr McGregor’s brief.
[10] On 13 May 2020, there was an email exchange between Mr Rider’s counsel and Ms Lotriet. Mr Rider’s counsel thanked Ms Lotriet, noting that the decision would be a real relief to Mr Rider. Ms Lotriet advised Mr Rider’s counsel he could ask the Registrar to bring the matter on for the withdrawal to happen, and that she had no issue with Mr Rider’s attendance being excused.
[11] However, on 14 May 2020, Ms Lotriet emailed Mr Rider’s counsel that she had just received instructions to the contrary. She sent another email the next day, apologising for having advised the charge was to be withdrawn. She explained that her earlier communication reflected the discussions with the Police crash expert, but that her decision was reviewed by senior officers.
[12] When the matter was next called in the District Court, on 18 May 2020, counsel for Mr Rider applied under s 147 to dismiss the charge on the ground of abuse of process. In advance of the hearing of that application, the Police crash expert made a written statement. He said he had no issues with the bases of Mr McGregor’s report or with his calculations, but that the report had a narrow focus and there were factors Mr McGregor had failed to consider.
District Court judgment
[13] Judge Thomas identified two situations where an abuse of process may occur in these circumstances. One was where Police actions prejudiced Mr Rider’s right to a fair trial. The other was where those actions would undermine public confidence in the administration of justice were a trial to proceed.
[14] On fair trial rights, the Judge did not accept that providing Mr McGregor’s report met the necessary threshold for prejudice. The decision to provide the report was a strategic one, with the purpose of encouraging Police to withdraw the charge. At the time the report was disclosed, that was nothing more than a possibility. Police could have continued with the prosecution after considering the report. Police eventually did make that decision. Ms Lotriet’s intervening representation that the charge would be withdrawn did not create any material prejudice out of disclosure of the report.
[15] On public confidence in the administration of justice, Mr Rider relied on the Solicitor-General’s Prosecution Guidelines. Guideline 7 provides that, normally, if a prosecutor tells a defendant that the prosecution has been stopped, “that is the end of the matter and the case will not start again”. The Judge noted that Guideline 7 also recognises that, particularly in serious cases, prosecutions can be reopened where a subsequent reassessment shows that the earlier decision was wrong. He characterised the case against Mr Rider as a serious one, in that a young child had been injured where they should have felt safe and at a place where many children every day are exposed to risk.
[16]The Judge continued:
[18] The defendant also argues that it is important to be able to rely on counsel’s representations because Court business needs to be done efficiently. That it is unfair to all Court users if cases flip-flop between proceeding and not proceeding. I wholeheartedly agree. In this case however there has been no particular cost to efficiency in relation to this case. The delay or the time between the Lotriet representation [that the charge would be withdrawn] and the review was only two days. It cannot be said that there is a wider general impact on efficiency in the future because of this one particular mistake by the police.
[19] The defendant argues that it is important to be able to rely on this representation because counsel would not take such steps in the future if this was how the police conduct their business. Again, I wholeheartedly agree. It is fundamental that a prosecuting authority has its credibility. That it is able to work effectively with defence counsel, with all stakeholders for that matter. The efficient dispatch of Court business depends on it. The principled dispatch of Court business depends on it. The appearance of both depends on it.
[20] However, I am pleased to say that this is [sic] was an isolated incident. That will come as no comfort to Mr Rider, but there is no indication of any broader failure of police systems or a lack of genuine evaluation of the merits of charges. We see instances daily of open dialogue and discussion, of frank and honest dealings genuinely motivated. We see the benefit every day to individual defendants and the system as a whole. There is no obvious risk of that being undermined here by a simple mistake.
[21] It is still a mistake that should not have been made. It is still an important mistake. It is a mistake that has caused significant stress to Mr Rider, a person who is in a stressful situation to start with. Everything about this incident for him would have been immensely stressful. He is likely to have been on an emotional rollercoaster well before 12 May, let alone on 14 and 15 May. It is material, though, that the distress caused by the review of the Lotriet representation has been short. It would have been significant, but we have been able to deal with it quickly and get to a hearing and a decision quickly and I am grateful to both sides for enabling that to happen.
Mr Rider’s application for judicial review
[17] Mr Rider applies to judicially review Judge Thomas’s decision. In his statement of claim Mr Rider claims that the Judge’s decision was, on several grounds, “unreasonable, unfair and wrong”. Mr Rider asks that the Judge’s decision be quashed and the charge dismissed.
[18]Mr Rider’s pleaded grounds of review were:
(a)Several rulings made by the Judge before the hearing were flawed, so that the process by which the Judge reached his decision was wrong.
(b)The Judge made findings of fact and misdirected himself as to the relevant evidence.
(c)The Judge was wrong to find that no material prejudice had occurred to Mr Rider in handing over Mr McGregor’s report.
(d)The Judge gave insufficient weight to the Solicitor-General’s Prosecution Guidelines, the United Nations Guidelines on the Role of a Prosecutor (1990) and the International Association of Prosecutors Standards (1999). In addition, in the context of Guideline 7.2 of the Solicitor-General’s Prosecution Guidelines, the Judge was wrong in law to categorise the charge as “serious”.
[19] The first respondent, the District Court, abides this Court’s decision. The second respondent, the Attorney-General, opposes Mr Rider’s application.
Submissions
[20] Mr Crossland, for Mr Rider, focussed his submissions on Guideline 7 of the Solicitor-General’s Prosecution Guidelines. He submitted the Judge had given insufficient weight to that Guideline, had wrongly regarded the case as “serious”, and had wrongly posited that Ms Lotriet’s representation the charge would be withdrawn was a “mistake”. Mr Crossland submitted there was no evidence from the Police that there had been a mistake, and the Judge had denied Mr Rider the ability to examine Ms Lotriet.
[21] Mr Crossland submitted that the application reduced to this: “Was Mr Rider’s expectation that the State would keep to its word legitimate, and should the State be held to its word?” In his written submission he addressed, in considerable detail, the doctrine of legitimate expectation (as part of the law of judicial review). Before me, however, he said he did not rely on that doctrine (which was not pleaded) as an independent ground of review. Rather, it was a way of articulating his submission that continuing with the prosecution was an abuse of process.
[22] Ms Hamill, for the Attorney-General, submitted that the doctrine of legitimate expectation was inapt in Mr Rider’s application for judicial review. Mr Rider was seeking to review the Judge’s decision. Mr Rider held no relevant legitimate expectation in respect of that decision. The issue before the Judge was whether – as advanced by Mr Rider – the Police conduct amounted to an abuse of process.
[23] Ms Hamill submitted the issue for this Court was whether the Judge was correct in determining that the Police’s decision to continue with the charge did not amount to an abuse of process. She submitted the Judge was correct. Guideline 7 envisages that there are cases where a prosecutor’s representation that a charge will not continue can be revisited. The Judge was correct to find this was one of those cases.
[24] Ms Hamill submitted that, in any event, adherence to the Guidelines is not determinative of whether there has been an abuse of process. She referred me to several Court of Appeal authorities that, in her submission, showed that a change in a prosecutor’s decision alone will not be an abuse of process warranting a dismissal of a charge. I will address these authorities below.
Decision
[25] To determine this application it is first necessary to identify the scope of judicial review of a s 147 decision. In light of that scope, I will then consider whether Judge Thomas’s decision should be reviewed.
The scope of judicial review of a s 147 decision
[26] There is no right of appeal against a decision refusing to dismiss a charge under s 147.3 But a decision of a District Court judge is amenable to judicial review in this Court.
[27] The scope of judicial review is narrower than the scope of an appeal. For judicial reviews in general, a court will intervene only if the decision-maker misconstrues statutory powers, acts unreasonably or with bad faith, commits a procedural error, or unreasonably encroaches on fundamental rights or values.
3 Rowell v Commissioner of Inland Revenue [2016] NZCA 471; and see White v R [2019] NZSC 53 at [9].
[28] The scope of judicial review of a decision under s 147 is even narrower. In Auckland District Court v Attorney-General, the Court of Appeal said the power to review decisions under s 347 of the Crimes Act 1961:4
… must be sparingly exercised. It is appropriate only in rare cases where, by reason of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative …
[29] Section 347 of the Crimes Act 1961 was the predecessor to s 147. The Court of Appeal’s approach applies also to decisions under s 147. This is confirmed in several High Court decisions.
[30] In DGN v Auckland District Court,5 Simon France J addressed the scope of judicial review of pre-trial decisions of the District Court, in the light of the major overhaul of criminal procedure brought about by the Criminal Procedure Act 2011. In a comprehensive analysis, he said the Act provides “carefully crafted appeal rights” which reinforced the “existing reluctance of the courts to allow judicial review to interrupt the conduct of criminal prosecutions”.6
[31] Simon France J was dealing with an application to review a decision to prosecute, rather than a decision under s 147. However, he addressed s 147 as part of his analysis. He noted that s 147 authorises a court to dismiss a charge on various grounds. He then said the Act prescribes appeal rights, reflecting a “careful consideration” of what appeal rights should exist pre-trial and after verdict. He said that s 147 is not a provision in respect of which a pre-trial appeal may be brought, “but the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal”.7
[32] His Honour said the Act was not only comprehensive in respect of appeal rights, but that it represented legislative assessment of a scheme which affords avenues of appeal at what are “considered to be the fair and appropriate points in the process”.8 His Honour said judicial review should not be seen as a way to circumvent that
4 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.
5 DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137.
6 At [28] and [29].
7 At [30] and [31].
8 At [32].
scheme. It followed that “a compelling reason should now be required before judicial review is allowed”9 and that the scope for using judicial review to challenge decisions made under the ambit of the Act must be “extremely narrow”.10
[33] An application was made for permission to appeal out of time against Simon France J’s decision. The application was declined, the Court of Appeal saying there was no reasonable prospect of the appeal succeeding.11
[34] Simon France J’s decision has twice been applied by the High Court in judicial reviews of District Court decisions declining applications under s 147.12 Both High Court decisions also apply the limits on judicial review stated by the Court of Appeal in Auckland District Court v Attorney-General.
Should Judge Thomas’s decision be reviewed?
[35] Given the scope of judicial review in this case, the question is whether Judge Thomas committed an error such that the intervention of this Court is imperative. I keep in mind that the power of judicial review should be sparingly exercised here.
[36] In assessing whether there was such an error, it bears repeating that the question for the Judge was whether there had been an abuse of process warranting the dismissal of the charge. In relation to criminal proceedings, a stay or dismissal may be granted in two categories of case. These are where there is prosecution misconduct that will
(i) prejudice a fair trial or (ii) undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed.13
[37] Mr Rider relied on both categories in the District Court, but relies on only the second category in this Court. In R v Wilson, the Supreme Court said that a stay of proceeding in the second category “is an extreme remedy which will only be given in
9 At [32].
10 At [40].
11 DGN v Auckland District Court [2017] NZCA 135, [2018] NZAR 137 at [11].
12 Angus v District Court [2017] NZHC 2879; Bennett v District Court [2020] NZHC 1730.
13 R v Wilson [2015] NZSC 189, [2016] 1 NZLR 705 at [40].
the clearest of cases”.14 In Fox v Attorney-General, the Court of Appeal said that the second category encompasses conduct which:15
… is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes …
[38] The jurisdiction to stay or dismiss proceedings on the basis of abuse of process is, as the Court of Appeal said, not a disciplinary one. In R v Wilson, the Supreme Court put it this way: “the analysis is not backward-looking, in the sense of focussing on the misconduct, but rather forward-looking, in that it relates to the impact of the misconduct on either the fairness of the proposed criminal trial or the integrity of the justice process if the trial proceeds”.16
[39] Ms Hamill referred me to several cases in which the Court of Appeal has declined to stay or dismiss a prosecution on the ground of abuse of process, notwithstanding a change in position by prosecution. A leading authority is Fox itself. The prosecuting agency had backtracked on an agreement it had reached as to the charges a defendant would face. The Court of Appeal held that was not an abuse of process.
[40] Another is R v Bailey.17 In 1992, the Police had de-activated an investigation into a rape complaint (though the defendant was not advised of that). In 2001, the Police re-activated the investigation and visited the defendant. He declined to be interviewed. In October 2002, the Police determined not to proceed with charges, and conveyed that to the defendant’s counsel. In May 2004, the Police changed their mind and charged the defendant. The defendant had suffered no direct prejudice from the delay or from the Police’s change of mind. The Court held that the Police’s change of mind did not amount to an abuse of process, saying:
[35] … There is no case cited to us that supports the proposition that the prosecuting authority cannot change its mind. … Where is the abuse of process if a prosecution is rightly brought on the basis of proper evidence? The fact that the prosecutorial authority might have determined at some earlier
14 R v Wilson [2015] NZSC 189, [2016] 1 NZLR 705 at [60].
15 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [37].
16 R v Wilson [2015] NZSC 189, [2016] 1 NZLR 705 at [40].
17 R v Bailey CA46/05, 23 May 2005.
stages that it was better that the prosecution not be brought cannot, of itself, give rise to any abuse of the Court’s process.
[41] These authorities, and others,18 present a formidable obstacle to Mr Rider’s challenge to Judge Thomas’s decision. If there is no abuse of process after a prosecutor backtracks on an agreement, or when the prosecutor decides to proceed more than a 18 months after telling a defendant otherwise, how can it be an abuse of process for the Police to change their mind two days after representing to Mr Rider that they would withdraw the charge? The obstacle is all the higher given that the question is whether Judge Thomas committed an error such that it is imperative this Court intervene.
[42] Mr Crossland’s answer to this obstacle was to submit that the authorities all pre-dated the current form of the (2013) Solicitor-General’s Prosecution Guidelines (the previous Guidelines not having an equivalent to Guideline 7). His submission involved two propositions:
(a)If those Guidelines were breached, an abuse of process should be found, notwithstanding the authorities.
(b)Judge Thomas had committed a reviewable error in concluding there was no breach of the Guidelines.
[43] I do not accept either proposition. As to the first, Mr Crossland referred me to Osborne v Worksafe New Zealand, in which the Supreme Court said that a prosecutor “must” act consistently with the Guidelines.19 But the Supreme Court was not addressing whether a failure to act in accordance with the Guidelines would lead to a finding of an abuse of process warranting a stay or dismissal. I do not accept that the introduction of the new Guidelines in 2013 effected a change in the law set out in the authorities to which I have referred. The Guidelines themselves state that they “do not purport to lay down any rule of law”.
18 Ms Hamill also relied on R v Drew CA391/97, 6 May 1998 and R v Ihaka CA 442/91, 22 June 1993. I accept these also support her submission.
19 Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447 at [73].
[44] As to the second proposition, Mr Crossland submitted there had been a breach of Guideline 7. It is convenient to set out the relevant parts here:
7.REOPENING A PROSECUTION DECISION
7.1People should be able to rely on decisions taken by prosecutors. Normally, if a prosecutor tells a suspect or defendant that there will not be a prosecution, or that the prosecution has been stopped, that is the end of the matter and the case will not start again.
7.2Occasionally there are special reasons where a prosecutor will restart the prosecution where that course is available under the applicable law, particularly if the case is serious.
7.3These reasons include:
7.3.1Rare cases where a reassessment of the original decision shows that it was wrong and should not be allowed to stand;
…
[45] This Guideline does not lay down a hard and fast rule. It says “normally” if a prosecutor says a charge will be withdrawn, that will be the end of the matter. As Judge Thomas said, this means such a decision can be reviewed by the prosecutor.
[46] Mr Crossland submitted the Judge erred in finding that the case was “serious”. I do not accept there was any error, let alone one that would make it imperative for this Court to intervene in the Judge’s decision. In any event, Guideline 7.2 contemplates a prosecutor reviewing a decision even where the case is not serious. The Guideline merely says a review is available particularly if the case is serious.
[47] Mr Crossland also submitted the Judge erred in characterising the decision to withdraw as a “mistake”. He said there was no evidence from the prosecution on which there could be a finding of a mistake. There is nothing in this. Guideline 7.3.1 says one reason for restarting a prosecution is where a reassessment of the original decision shows that it was “wrong”. It is plain from the events that followed Ms Lotriet’s email that the Police reassessed their initial decision to withdraw the charge and reached the view that decision was wrong. This is all the Judge was meaning when he said that there had been a “mistake”.20
20 Police v Rider [2020] NZDC 11617 at [16].
[48] In summary, I conclude there was no error, let alone a reviewable error, in Judge Thomas’s decision.
Result
[49]Mr Rider’s application is declined.
[50] The Attorney-General is entitled to costs. If costs cannot be agreed, brief memoranda (no more than three pages each) may be filed: the Attorney-General by 13 August 2021, Mr Rider by 20 August 2021.
Campbell J
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