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S v Attorney-General

S v Attorney-General

Case [2022] NZHC 2992 17 November 2022

Natural Justice & Procedural Fairness

Administrative Law

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-851

[2022] NZHC 2992

UNDER The Judicial Review Procedure Act 2016

IN THE MATTER OF

Judicial Review of the decision to commit the applicant to trial in the District Court

BETWEEN

S

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

THE AUCKLAND DISTRICT COURT

Second Respondent

Hearing: 13 October 2022

Appearances:

Further submissions and evidence completed:

The applicant in person

Z Hamill and B So for the Respondent

16 November 2022

Judgment:

17 November 2022

JUDGMENT OF POWELL J

This judgment was delivered by me on 17 November 2022 at 4pm.
Pursuant to Rule 11.5 of the High Court Rules.

…………………..
Registrar/Deputy Registrar

Solicitors:
Crown Law, Te Tari Ture o Te Karauna, Wellington

Copy:
Legal Documents Officer, Auckland South Correctional facility, Auckland

S v THE ATTORNEY-GENERAL [2022] NZHC 2992 [17 November 2022]

[1] The Attorney-General has applied to strike out judicial review proceedings brought by the applicant.1 The Attorney-General contends that the applicant’s proceedings, which ostensibly seek to review a 2008 decision of Judge D A Burns committing the applicant to trial for sexual offending,2 are an abuse of process and constitute a collateral attack on earlier decisions of the High Court, Court of Appeal and Supreme Court that have previously determined the issues the applicant now wishes to raise.

The applicant’s proceedings

[2] The applicant denies he is attempting to re-litigate matters already determined by other Courts and argues that Judge Burns erred in committing him to trial by:

Allowing admission of the evidential video interview of the complainant because she did [not] take an oath or make an affirmation during the interview.

(“the committal issue”)

[3] As a result, the applicant “requests a reconsideration of the decision to commit him to trial”. In the applicant’s submission if the committal decision is set aside this would mean his trial was invalid and as a result his conviction would also have to be set aside.

[4] Although no additional specific relief appears to have been pleaded, the applicant’s statement of claim is not limited to a challenge to Judge Burns’ committal decision. Instead, throughout the statement of claim and in his submissions on the strike-out application the applicant frequently segues into other allegations. In particular, and in addition to the committal issue, the applicant variously alleges:

(a)The medical evidence at trial was incorrect and misled the jury as a result of neither the Crown nor defence experts understanding the scale of the rape allegations made by the complainant (“the medical evidence issue”).

1 Reference to the applicant’s name has been removed throughout this judgment due to the nature of the offending, where s 139 of the Criminal Justice Act 1985 applies, as well as the extensive litigation history where publication of the applicant’s name may lead to identification of the victim.
2 Police v [S] DC Waitakere CRN 0809003987-3991, 26 November 2008.

(b)Trial counsel errors including:

(i)Failing to establish the scale of the rape…

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.

Continue reading S v Attorney-General

Details

AGLC: S v Attorney-General [2022] NZHC 2992
Case: [2022] NZHC 2992
Decision Date: 17 November 2022

CaseChat Overview and Summary

In S v Attorney-General, the applicant sought to challenge the 2008 decision of Judge D A Burns committing him to trial for sexual offending. The Attorney-General applied to strike out the applicant's proceedings on the basis that they constituted an abuse of process and were a collateral attack on earlier decisions of the High Court, Court of Appeal and Supreme Court that had already determined the issues the applicant now sought to raise. The applicant argued that Judge Burns erred in committing him to trial by allowing admission of the evidential video interview of the complainant because she did not take an oath or make an affirmation during the interview. The applicant also raised other issues in his submissions, including allegations of incorrect medical evidence at trial and trial counsel errors.

The Court found that the applicant's issues had been comprehensively determined against him from the conviction appeal judgment onwards. The Court concluded that to continue to raise these issues was an abuse of process. The Court further held that the committal issue had also been definitively determined and that it was an abuse of process to seek to revisit it under the guise of the present judicial review proceedings. The Court held that there was no substance to the committal issue, as any errors alleged with the committal process were peripheral and would not have affected the outcome of the trial. The Court granted the application to strike out the applicant's proceedings, including his application for interim orders.

The Court concluded that the proceedings were manifestly an abuse of process and that the applicant's status as a prisoner did not prevent the Attorney-General from being entitled to costs. The Court directed that any memorandum on behalf of the Attorney-General was to be filed by 25 November 2022 and any response by the applicant by 9 December 2022. The Court would then determine the issue of costs on the papers.

Orders