Rider v District Court, Auckland

[2021] NZHC 498

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001343

[2021] NZHC 498

IN THE MATTER OF

An application for judicial review under the Judicial Review Procedure Act 2016

BETWEEN

BRETT PHILLIP RIDER

Applicant

AND

DISTRICT COURT, AUCKLAND

First Respondent

AND

ATTORNEY-GENERAL

Second Respondent

Hearing:

3 February 2021

Appearances:

K J Crossland for Applicant

No appearance for First Respondent (abides decision of the Court) Z R Hamill for Second Respondent

Judgment:

12 March 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 12 March 2021 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law Office, Wellington Shieff Angland, Auckland

RIDER v DISTRICT COURT [2021] NZHC 498 [12 March 2021]

[1]                 In this proceeding Brett Rider (Mr Rider) applies for judicial review of a decision made by Judge EM Thomas sitting in the Auckland District Court declining his application pursuant to s 147 of the Criminal Procedure Act, for dismissal of a charge of careless operation of a vehicle causing injury (the driving charge).

[2]                 On 13 May 2020, Mr Rider’s counsel was advised by a Police prosecutor that the Police had decided to withdraw the driving charge following consideration of a report prepared by a defence expert regarding the incident that had led to the driving charge being laid. However on 14 May 2020 the prosecutor notified Mr Rider’s counsel that the decision to withdraw the charge had been countermanded by superiors and the prosecution would proceed.

[3]                 Mr Rider then applied to the Auckland District Court for dismissal of the driving charge on the grounds that the continued prosecution was an abuse of process. His application was dismissed by Judge Thomas in an oral decision delivered on 28 May 2020.1

[4]                 By this interlocutory application Mr Rider applies for an order directing the Attorney-General, representing the Police, to give discovery of all documents relating to the Police decisions: to first withdraw the driving charge; then reverse their decision to do so.

[5]                 The Auckland District Court, as first respondent, abides the decision of the Court.

Background

[6]                 On 10 September 2019 Mr Rider was driving his van on Tripoli Road, Panmure. As he approached a pedestrian crossing a 10-year old girl ran out onto the crossing without looking for oncoming traffic, and he was unable to stop, Mr Rider’s vehicle struck the girl. He was subsequently charged by the Police with careless operation of a vehicle causing injury2 and made his first appearance in the Auckland District Court on 9 December 2019.

1      Police v Rider [2020] NZDC 11617.

2      Land Transport Act 1998, s 38. Maximum penalty: 3 months’ imprisonment; or $4500 fine.

[7]                 Mr Rider considered that he had not been at fault because the girl had run out onto the pedestrian crossing without stopping or looking to check for oncoming traffic. He maintained that when the child ran onto the crossing, his vehicle was already too close for him to be able to stop and avoid hitting her. Mr Rider accordingly engaged an expert mechanical engineer, Mr Andrew McGregor, to prepare a report to determine whether, if he had seen her the moment she reached the crossing, Mr Rider could have braked earlier to avoid hitting the pedestrian. Mr McGregor conducted an investigation and prepared a comprehensive peer-reviewed report in which he concluded that even if Mr Rider had seen the pedestrian the moment she reached the crossing, it was unlikely that any driver complying with the speed limit and driving a functional vehicle, could have braked earlier and thereby avoided hitting the pedestrian. Accordingly Mr McGregor’s opinion was that the driver had not caused the collision and the girl’s injuries. Mr McGregor also found that the “zebra bars” of the crossing were not visible at a distance of 40.5 metres from the crossing because it was located on the brow of a hill. In his opinion, for the driver to have braked to avoid hitting the girl, he would have had to anticipate the movement of the child before she ran out onto the crossing and before he was able to see the pedestrian crossing.

[8]                 On 17 March 2020, following prior discussions between them, Mr Rider’s counsel provided a copy of Mr McGregor’s report to a Police prosecutor (Ms Lotriet) on a “strictly without prejudice” basis to enable the Police to consider it, and decide whether to proceed with the prosecution. Mr Rider’s counsel advised Ms Lotriet that the defence considered that the report showed that there had been no carelessness on Mr Rider’s part.

[9]                 On 12 May 2020 Ms Lotriet, advised Mr Rider’s counsel by email that the Police had decided that the charge would be withdrawn. However, on 14 May 2020 Ms Lotriet advised Mr Rider’s counsel that she had received instructions from senior police officers that the decision to withdraw the charge would be reversed and the prosecution of the charge would proceed.

[10]              Mr Rider then applied to the District Court for dismissal of the charge pursuant to s 147 of the Criminal Procedure Act 2011 on the grounds that the prosecution was an abuse of process. Prior to the hearing of the s 147 application the applicant served

a subpoena on Ms Lotriet requiring the production of the documents for which discovery is now sought. Judge Thomas effectively set aside the subpoena saying:

[11]              The defendant summonsed Ms Lotriet. However, given that the factual narrative that I have set out is accepted, I was not satisfied that any evidence that she would now be able to give would be relevant. Additionally, the police have not waived privilege in relation to internal communications generated for the purpose of conducting the trial.

[12]                Mr Rider’s s 147 application was declined. In his judgment delivered on 28 May 2020 Judge Thomas said:

[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 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] 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 of 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.

[13]              It is this decision he seeks to judicially review. In this interlocutory application Mr Rider seeks discovery of internal police communications pertaining to the reversal decision. Specifically, he seeks discovery of all communications sent and received by Police officers and staff between 13 May 2020 and 15 May 2020 regarding the decision to withdraw the charge and then reverse the decision. He also seeks a direction that the grounds of any claims of privilege made in respect of any of the discovered documents be particularised in the list of discovered documents to be provided.

[14]              The grounds of review which relate to the documents sought by the applicant in the present application are that:3

(a)The decision was fundamentally flawed because prior to the hearing the Judge made rulings in which he: refused to require disclosure of the documents relevant to the decision to reverse the prior decision to withdraw the charge; refused to allow examination of Ms Lotriet; which rulings were unreasonable and “deprived the [applicant] of appropriate evidence upon which he could fairly make submissions in support of the s 147 application.”

(b)The Judge was wrong to address the issue of disclosure of documents by way of waiver of privilege.

Submissions

The applicant

[15]               Mr Crossland for the applicant submits that the scope of the discovery sought is narrowly confined to communications and records of the Police officers and staff made or exchanged over a short period of time between 13 May 2020 and 15 May 2020 regarding the decision to withdraw the charge and then reverse the decision. He submits, it is relevant that what is sought is essentially tailored discovery of what may involve only 20 or fewer documents. Mr Crossland notes that in an email Ms Lotriet

3      Statement of Claim at [32] and [33].

sent to him on 15 May 2020, she said that she had been receiving “correspondence from various senior officers who have effectively reviewed my decision.”4

[16]               Counsel submits that discovery of such a limited number of documents relating to a short period of time would not be an onerous task for the second respondent and would not be disproportionate to the scope of the judicial review proceedings.

[17]               Mr Crossland submits that the documents in respect of which discovery is sought were not created for the purpose of the conduct of the trial as by the time they were created a decision had already been made that the charge would be withdrawn and there would be no trial. He accordingly submits that any documents created in relation to the decision to proceed with the prosecution after the decision had been made to withdraw the charge would not be privileged.

[18]                 Counsel submits that the Police decision to withhold the documents sought by Mr Rider was relevant to the Judge’s s 147 decision. He submits that the documents were created for the purpose of informing Ms Lotriet that the senior police officers disagreed with the decision made to withdraw the charge which had already been communicated to Mr Rider’s counsel. That process is distinctly different to communications relating to the preparation of a case for trial.

[19]               He notes that the Judge did not see the documents and did not uphold the subpoena by which the applicant had sought to obtain production of the documents.

[20]               Mr Crossland acknowledges that the applicant did not make an application pursuant to s 30 of the Criminal Disclosure Act 2008 (CDA). He submits however that in the circumstances whereby the applicant had served a subpoena seeking production of the documents, the s 30 procedure would have been a procedural nicety that would not have made any difference so far as the applicant obtaining the documents he sought. Mr Crossland relies on ss 30(1)(b) and 30(2) of the CDA and submits the Court should make an order under that provision requiring the second respondent to make disclosure of the documents. He says that although counsel has not seen the contents

4      At [15], email from Ms Loriet to Mr Crossland 15 May 2020.

of the documents it is unlikely that any of the reasons for withholding information prescribed in s 16 of the CDA would apply.

[21]               In the alternative, Mr Crossland submits that an order requiring the second respondent to make discovery of the documents is justified in the public interest. He submits that the applicant was entitled to rely on the word of Ms Lotriet as an officer of the Court when she advised Mr Rider’s counsel that a decision to withdraw the charge had been made.

The second respondent

[22]               Ms Hamill for the second respondent submits that the context of the interlocutory application seeking discovery is significant. She submits that the discovery sought by the applicant is neither relevant to, or necessary for, the determination of the application for judicial review of the District Court Judge’s decision to dismiss Mr Rider’s s 147 application. The issue for the Court in the judicial review proceedings is whether, on the material before the Judge, he reached a conclusion that was legally and procedurally correct. Counsel submits that the sought documents are not relevant to or necessary for, the determination of those issues.

[23]               Ms Hamill notes that the applicant’s submissions in support of discovery being ordered are primarily focussed on the scope of any privilege attached to the documents sought, and whether any grounds for withholding the documents under the Criminal Disclosure Act 2008 (CDA) are applicable, or whether the public interest or any other policy considerations favour an order requiring disclosure. Ms Hamill notes however that the CDA relates to applications for disclosure arising or made in the context of criminal proceedings, whereas the interlocutory application relates to the judicial review proceedings which are civil in nature.

[24]              Counsel submits that the central issue arising from the pleaded grounds of review is essentially whether the Judge adopted a process by which he reached an incorrect decision, and whether his approach and finding regarding privilege was legally available to him. Ms Hamill notes that documents which are being sought by means of the interlocutory application were not before the Judge and did not form any part of the decision making process. Counsel accordingly submits that the documents

are not relevant to determination of the central issue arising in the judicial review, and whether the decision he made is correct.

[25]              Ms Hamill further submits that the documents now being sought were and are non-disclosable in accordance with s 16 of the CDA. She notes that the applicant did not make an application under s 30(1)(b) of the CDA to the District Court, but adopted the summons and subpoena procedure in an endeavour to obtain the documents, however that process did not remove any existing claim of privilege over the documents, and was not dispositive of whether they should be disclosed under s 30 of the CDA.

[26]              She says that Ms Lotriet’s communication to Mr Rider’s counsel advising that the decision to withdraw the charge had been reversed did not put the internal Police emails regarding the decision in issue and the sequence of events did not amount to an implied waiver of privilege, or conduct that put the emails in issue.

[27]              Ms Hamill submits that in any event the issue of whether the documents sought are privileged is not directly engaged in the context of this interlocutory application, as the question of whether or not the Judge correctly applied the law in determining that the documents were privileged is a substantive ground of review rather than an interlocutory issue, and the contents of the documents are not necessary to determine that ground of review. Rather it is the nature of the documents and the process that is relevant to the judicial review, and not the contents of the communications.

[28]              Ms Hamill submits that discovery in judicial review proceedings is discretionary, focusing on the importance of expeditious determination, rather than getting mired in interlocutory proceedings; and here (as they are privileged internal police communications, subject to withholding grounds under the Criminal Disclosure Act 2008) the documents by nature are not disclosable.

Law

[29]              An application for judicial review ought to be determined in a convenient and expeditious manner.5 This is consistent with the objective of judicial review as involving a “relatively simple, untechnical and prompt approach”.6 Judicial review proceedings are to be “efficient, untechnical and prompt”.7 While discovery is available in applications for review the power to order it is discretionary, and in marked contrast from the position that applies in ordinary proceedings.8 Discovery must be proportionate.9 What is appropriate in any particular case is to be determined in the circumstances of the individual case, the issues raised and the context in which the judicial review challenge is made.10 Decision-makers exercising public authority owe a “duty of candor” in relation to the provision of relevant background documents to the decision.11 Relevance is a necessary pre-condition to an order for discovery.12

[30]              When considering discovery in the context of judicial review,13 the critical test is whether it is “necessary” for the fair disposal of the proceedings. This does not mean an applicant is required to establish necessity. Justice Priestly in Air New Zealand v Auckland International Airport Ltd14 observed:

In some judicial review cases discovery may be unnecessary. In others limited discovery may assist. In some cases it is conceivable that discovery in the nature of general discovery might be required. Issues such as these should be determined on a case by case basis in the exercise of the Court’s powers under s 10(2)(i).

[31]              In considering the proportionality of making an order for discovery an assessment of the prospect of finding relevant documents and their degree of relevance

5      Judicial Review Procedure Act 2016.

6      New Zealand Institute of Chartered Accountants v Chartered Institute of Management Accountants [2015] NZHC 818 at [83].

7      Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) at 353.

8      Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [20].

9      Smith v Attorney-General [2017] NZHC 2810 at [30].

10     Keenan v Attorney-General [2014] NZHC 1649 at [9], citing Air New Zealand Ltd v Auckland International Airport Ltd (2001) 16 PRNZ 783 (HC).

11     Attorney-General v Institution of Professional Engineers New Zealand Inc [2018] NZHC 74 at [38].

12     Smith, above n 9, at [29].

13     Wellington International Airport Ltd v Commerce Commission HC Wellington CP151/02, 25 July 2002 at [42].

14     Air New Zealand v Auckland International Airport Ltd (2001) 16 PRNZ 783 (HC) at [35].

is the threshold consideration.15 This is to be balanced against the likely costs incurred by the party required to carry out the discovery process. Other relevant considerations include the nature of the issue in dispute, the resources of the parties, and delay to the proceedings may also be relevant to the proportionality inquiry.16

Discussion

[32]              The essential issue as to whether discovery should be ordered is whether the documents sought are relevant to the issues in the judicial proceeding. It is clear that the documents were not before the Judge when  he made his  decision  to  dismiss  Mr Rider’s s 147 application, and accordingly the documents and their contents played no part in the Judge’s decision making process. That being the case the documents sought cannot have any relevance to the issues to be determined in the context of the judicial review proceedings brought by Mr Rider.

[33]              Here the applicant appears to have confused and telescoped the separate considerations applicable to the judicial review proceedings and the criminal proceedings regarding the driving charge he faces. The judicial review proceeding is not the appropriate proceeding in which to be seeking disclosure of documents and information that is considered relevant to the criminal proceedings and for which the CDA contains a statutory procedure to apply for disclosure.

[34]              In his decision the District Court Judge noted that there was no allegation made of bad faith on the part of the Police and prosecution.17 The issue the Judge had to decide was whether, continuing with the prosecution after the prosecutor had informed Mr Rider’s counsel that a decision had been made by the Police to withdraw the charge, amounted to an abuse of process warranting the Court ordering that the charge be dismissed pursuant to s 147 CPA.

[35]              In the absence of an allegation of bad faith, the contents of communications between police and their staff regarding the reasons for the decision to reverse the

15     Smith, above n 9, at [31].

16     At [31], citing: Commerce Commission v Cathay Pacific Airways Ltd [2012] NZHC 726 at [12]-

[13] and [18].

17     Police v Rider, above n 1, at [8] and [9].

initial decision to withdraw the charge, were of no relevance to the issue the Judge had to decide. Mr Rider’s counsel had been informed that Ms Lotriet’s superiors had instructed her to proceed with the prosecution and from her explanation it was clear that her superiors had taken a different view regarding whether it was appropriate for the charge to be withdrawn. The issue relied on by Mr Rider as the grounds of his abuse of process argument was whether he ought to have been able to rely on the advice received from Ms Lotriet that the charge would be withdrawn as being a final determination from which the police could not resile, and whether by seeking to do so the Police prosecution was an abuse of process.

[36]              The Judge determined that there was no abuse of process due to the arrangements by which Mr Rider’s counsel provided the McGregor report to the prosecutor. The Judge held that as Mr Rider had elected to provide the report in the hope that it would lead the Police to decide to withdraw the charge, but had no certainty that would be the outcome, there was no abuse of process caused by what had occurred. The Judge held that Ms Lotriet’s advice to Mr Rider’s counsel that she had decided to withdraw the charge did not materially prejudice Mr Rider’s ability to present his defence and have a fair trial.

[37]              The Judge further found that the reversal of the decision to withdraw the charge would not tend to undermine public confidence in the integrity of the judicial process if the prosecution of Mr Rider was allowed to proceed. That issue did not require examination of the contents of the documents now sought by the present application.18 The Judge also determined that the wider interests of justice required the hearing and determination of the charge, and consequently continuation of the prosecution. The Judge accordingly found that the circumstances were not such as to warrant ordering a stay and dismissing the charge. Again, it is clear that in the absence of any allegation that the change of position adopted by the Police, in reversing the earlier decision to withdraw the charge, was due to bad faith on their part, the documents relating to that reversal decision and their contents were not relevant to the Judge’s decision.

18     At [15]–[20].

[38]              I accordingly find that the applicant has failed to show that the documents sought in his interlocutory application are relevant to the issues arising in the judicial review proceedings, and I dismiss the application.

[39]              The applicant’s reliance on s 30 of the CDA is inapplicable in this context of judicial review proceedings. However, my decision does not prevent the applicant from making a pre-trial application to the District Court pursuant to s 30 to seek production of the correspondence relating to the decision to reverse the initial decision to withdraw the charge. Whether the application succeeds or not is not a matter for comment in the context of determining this interlocutory application.

Result

[40]              The application is declined, and I decline to order discovery of the documents sought in the interlocutory application.

Costs

[41]              In the circumstances, I consider it inappropriate to make an order for costs and I accordingly direct that costs shall lie where they fall.

Paul Davison J