S (SC 24/2023) v Attorney-General - [2023] NZSC 86

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 24/2023
[2023] NZSC 86

BETWEEN	S (SC 24/2023) Applicant
AND	ATTORNEY-GENERAL First Respondent
AND	DISTRICT COURT AT AUCKLAND Second Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	Applicant in person Z R Hamill and W P So for First Respondent H M Carrad for Second Respondent
Judgment:	18 July 2023

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

BThere is no order as to costs.

____________________________________________________________________

REASONS

Introduction

The applicant was convicted in 2010 on seven charges of serious sexual offending. He was sentenced to 16 years’ imprisonment with an MPI of 10 years.[1] He has since brought a series of appeals and habeas corpus applications as either direct or collateral attacks on his convictions.
[1]R v [S] DC Auckland CRI-2008-090-003508, 18 May 2010.
The judicial review proceeding the subject of the current application commenced in the High Court in May 2022, with the applicant challenging the District Court Judge’s (pre-Criminal Procedure Act 2011) decision to commit the applicant for trial.[2] On application by the Attorney‑General, the High Court struck out the applicant’s proceedings as an abuse of process.[3] The High Court dismissed the applicant’s parallel application for interim orders asking for (effectively) bail pending the determination of the judicial review proceedings.[4]
[2]He also raised other arguments in the High Court which are not raised in this application so will not be covered.
[3]S v The Attorney-General [2022] NZHC 2992 (Powell J) [HC judgment].
[4]At [28]. The applicant’s application for recall of the HC judgment was dismissed: S v The Attorney-General [2023] NZHC 371.
The applicant now applies directly to this Court for leave to appeal against the High Court decisions described above.

High Court judgment — 2022 judicial review proceedings

In the 2022 judicial review proceedings, the applicant argued that the deposition Judge erred in committing him to trial, as the Judge admitted the complainant’s EVI, which was not made on oath or affirmation. As a result, he argued, all that followed was invalid, and his conviction should be set aside.
Powell J, after traversing the history of the applicant’s challenges, held that multiple challenges to pre‑trial matters had been considered from 2015. The committal argument in particular had been considered by this Court twice in dismissing both recall applications. It was “not tenable” to say that this Court’s judgments ignored the applicant’s challenge to the procedures adopted at committal.[5]
[5]HC judgment, above n 3, at [24].
In any event, the High Court found that the argument was misconceived. The nature of the committal process was that, absent any challenge to the committal decision prior to the trial, there was “simply no legal basis to suggest the result of the trial would be invalidated by any defects in the committal process”.[6]
[6]At [25].
Finally, the applicant’s issue…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read S (SC 24/2023) v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZSC 86
Decision Date: 18 July 2023

CaseChat Overview and Summary

The case before the Supreme Court involved the applicant, S, who had been convicted in 2010 on seven charges of serious sexual offending. S appealed his conviction and sentencing through various legal avenues, including habeas corpus applications and appeals. The current application focused on the judicial review proceeding initiated in the High Court in May 2022, where S challenged the decision of the District Court Judge to commit him for trial. The High Court dismissed S's proceedings as an abuse of process and rejected his application for interim orders. S now seeks leave to appeal the High Court's decisions directly to the Supreme Court.

The legal issues before the Supreme Court included whether the High Court erred in dismissing S's judicial review proceedings and interim orders application. S argued that the District Court Judge erred in committing him to trial by relying on the complainant's unsworn evidence, and that the prosecutor breached S's right to natural justice and is liable for false imprisonment. The respondents argued that S was attempting to relitigate matters already considered by the Court and that the criteria for a direct appeal under the Senior Courts Act 2016 had not been met.

The Supreme Court found that the application for leave to appeal did not meet the criteria for a direct appeal under the Senior Courts Act 2016. The Court noted that S's core complaint had been twice considered and rejected by the Court. The Supreme Court held that it was not necessary in the interests of justice to hear and determine the proposed appeal, and dismissed the application for leave to appeal. There was no order as to costs.

Orders