S v Criminal Cases Review Commission
[2024] NZHC 3856
•17 December 2024
NOTE: PUBLICATION OF COMPLAINANT’S NAME OR IDENTIFYING PARTICULARS PROHIBITED BY S 139 OF CRIMINAL JUSTICE ACT 1985. IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-2134
[2024] NZHC 3856
UNDER the Judicial Review Procedure Act 2016 BETWEEN
S
Applicant
AND
CRIMINAL CASES REVIEW COMMISSION
Respondent
Judicial review list: 11 December 2024 Appearances:
Applicant in person (via AVL) S J Mount KC for respondent
Date of judgment:
17 December 2024
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 17 December 2024 at 3.00pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Counsel/Solicitors:
S J Mount KC, AucklandA R Longdill, Barrister, Rotorua
Te Kāhui Tātari Ture | Criminal Cases Review Commission, Hamilton
Copy to:
Applicant
S v CRIMINAL CASES REVIEW COMMISSION [2024] NZHC 3856 [17 December 2024]
[1] The applicant seeks judicial review of the Criminal Cases Review Commission’s decision not to proceed with his application for review of his sexual violation convictions in 2010 for rape (x 4, two representative) and unlawful sexual connection (x 3, one representative), for which he was sentenced to 16 years’ imprisonment, with a minimum term of 10 years.1
Statutory context
[2] The Commission’s primary function is to “refer a conviction or sentence to the appeal court if the Commission, after reviewing the conviction or sentence, considers that it is in the interests of justice to do so”.2 For that purpose, the Commission may regulate its own procedures, consistently with “the rules of natural justice and the principles of the Treaty of Waitangi (te Tiriti o Waitangi)”, which procedures must be made publicly available.3 The Commission “must act independently, impartially, and fairly in performing its functions and duties and exercising its powers”.4
[3] The Commission’s website, describing itself as “Te Kāhui Tātari Ture | Criminal Cases Review Commission”, explains:5
Any eligible person or a representative can apply to Te Kāhui for it to refer a conviction or sentence to an appeal court.
Our Commissioners’ role is to accept or decline applications. When an application is received it will be assessed. The Commissioners review the assessment and either refer it for a full investigation or decline the application.
There is a range of factors we must consider when assessing an application, including whether the applicant has exhausted all appeal rights, whether there is fresh evidence and the prospects of a referral succeeding.
Reports will be produced on applications that are referred for a full investigation. The Commissioners review the investigation report and decide whether or not to refer the case to the court.
After we make our decision, we will get in contact with you to let you know the outcome.
1 R v [S] DC Auckland CRI-2008-090-3508, 18 May 2010.
2 Criminal Cases Review Commission Act 2019, s 17; Jolley v R [2022] NZSC 150, [2022] 1 NZLR 595 at [21].
3 Section 15.
4 Section 16.
5 Te Kāhui Tātari Ture | Criminal Cases Review Commission “How the process works”
< a short media release will be issued, and a summary of the decision made available on this website.
We do not decide guilt or innocence. If your case is referred, you will be given a new hearing in an appeal court.
We will publish a fuller version of how it works in due course.
[4] The applicant applied to the Commission for it to refer his convictions to the appeal court.6 The Commission “may decide to take no action, or take no further action, in relation to an application if”, relevantly here:7
… in the Commission’s opinion, the application is frivolous, vexatious, or otherwise not made in good faith; or … for any other reason, the Commission believes that it is unnecessary or inappropriate for it to take any action or further action.
Otherwise, the Commission “may decide to investigate the conviction or sentence to which an application relates”.8 On making a decision under s 17 or 24, the Commission must give the applicant “written notice of the decision, with the reasons or a summary of the reasons for the decision”.9
Factual background
[5] The Commission initially assessed the applicant’s application in April 2024, after which it notified him by letter of 30 April 2024 it proposed to take no further action on his application. It sought any further submissions he wished to make on its provisional statement of reasons for that decision. After considering the applicant’s response, it further assessed his application in June 2024 and notified him by letter of 10 July 2024 it would not proceed with his application, providing also a supplementary statement of reasons.
[6] The applicant filed this proceeding on 27 August 2024. He asserted to have falsely been imprisoned as a result of the depositions Judge’s decision to commit him to trial “with inadmissible fundamentally defective evidence”. He claimed the Commission’s decision to take no further action on his application was founded in its
6 Section 21.
7 Section 24.
8 Section 25.
9 Section 26.
errant comprehension as to the admissibility of that evidence, as to which the Commission’s supplementary statement of reasons stipulated “the [complainant’s evidential video interview] was correctly admitted under the law as it stood at the time of [his] trial”. He sought this Court’s determination if the Commission was correct in law, proposing — if not — this Court should set aside the depositions Judge’s commitment of him to trial (necessarily meaning his convictions and sentence all fell away) and give directions for management of his intended proceeding for damages for false imprisonment.
[7] On receipt of service of this proceeding, the Commission acknowledged its stipulation was “potentially confusing”: the complainant’s evidential video interview was admitted not at the applicant’s trial, but at his depositions hearing.
[8] The Commission reconsidered the applicant’s application in October 2024 but confirmed its decision not to proceed with it. The Commission withdrew and replaced its supplementary statement of reasons. So far as the complainant’s evidential video interview was concerned, that supplementary statement then explained:
[T] he issue of the admissibility of the complainant’s EVI at the depositions hearing and the validity of your committal has been raised unsuccessfully before the Supreme Court (and, subsequently, the High Court). The Commission has not identified anything in your 28-day submissions which establishes (or could establish) that the Supreme Court erred in concluding that any errors alleged are peripheral and would not have affected the outcome of the trial.
Most importantly, the EVI was not produced in evidence at your trial. The complainant gave evidence in person at the jury trial and was comprehensively cross-examined. It was on the basis of her sworn evidence, not the EVI, that you were convicted.
You have raised concerns that, when challenged under cross-examination about inconsistencies in her evidence with the EVI, the complainant could not remember at times. The jury saw and heard that cross-examination, and it was a matter for them to weigh it in their assessment of the evidence.
You also complain that the Crown undermined your rights under the NZBORA and that you were deprived of the right to a fair trial by being denied your right to test the complainant’s veracity.
We have not identified any basis on which these arguments could satisfy the test for referral. As outlined above, your counsel did test the complainant’s veracity through extensive cross-examination. In terms of producing the EVI into evidence, the Crown elected to call the complainant to give evidence in the normal way, and did not seek to produce the EVI. The Crown was entitled
to do that. It was open to your counsel to produce the EVI as a defence exhibit. It is understandable that this step was not taken, as it is unlikely to have advanced your case (as pointed out by the Court of Appeal).
Your arguments that Judge Burns erred in allowing the admission of the EVI at the depositions hearing have been considered by the Supreme Court, which concluded that there was no risk of a miscarriage of justice.
The same arguments have also been subsequently considered by the High Court in the context of judicial review proceedings in November 2022. The High Court concluded that there was no substance to the committal issue and any defects in the pre-trial process would have been cured by the subsequent trial. The Supreme Court dismissed your application for leave to appeal from the High Court directly, noting that your core complaint had been twice considered and rejected by it.
Finally, as was recorded in the High Court and most recent Supreme Court judgment, if Judge Burns had declined to admit the EVI at your depositions hearing, the Summary Proceedings Amendment Act 2008 would have allowed the charges to be re-laid and the evidence to be relied upon. This is not a situation where you would have been guaranteed an acquittal if the EVI was ruled inadmissible.
In these circumstances, we have not identified any basis upon which this ground could satisfy the test for referral.
[9] For that reason, and the failure also of the applicant’s other grounds for seeking the Commission’s reference of his convictions to the appeal court,10 the Commission accordingly was “unable to identify any potential grounds in the material that may satisfy the interests of justice test in section 17” and by letter of 18 October 2024, enclosing its revised supplementary statement of reasons, advised its review of the applicant’s application was at “an end”.
[10] The applicant filed an amended statement of claim dated 22 October 2024, then directly seeking his substantive relief on judicial review without regard for any contended antecedent error on the part of the Commission. On the proceeding’s call in the judicial review list on 30 October 2024, at which the Commission sought the pleading be struck out, I stated:11
[T] he amended claim remains an impermissible collateral attack on the Courts’ dismissals of his prior challenges to [the District Court’s
10 The applicant also contended for exculpatory medical evidence, emerging evidence of his mental disorder such as rendered him a victim of his offending and counsel error in not calling evidence from a social worker.
11 [S] v Criminal Cases Review Commission HC Auckland CIV-2024-404-2134, 30 October 2024 (Minute of Jagose J) at [2]–[3].
acceptance of evidence for his committal],12 as this Court previously has held in relation to [the applicant]’s previous, more direct claim for judicial review of the District Court’s decision.13 I therefore strike out the amended claim as an abuse of process.
Particularly given the existence of the Commission’s decisions, it remains open to [the applicant] to bring a claim for judicial review against the Commission in relation to them. Such claim must clearly and concisely identify:
(a) what specific right, obligation or interest had by him is affected by the Commission’s decisions;
(b) by reference to the Criminal Cases Review Commission Act 2019, what particular statutory power the Commission is said to have exercised;
(c) which specific aspects of the Commission’s decisions are at issue as exercises of that statutory power;
(d) in relation to each such aspect, what of it is alleged not to be exercised in accordance with law, or to be unfair or unreasonable in a judicial review sense, and how; and
(e) with reference to s 16 of the Judicial Review Procedure Act 2016, what relief he seeks the Court grant.
[11] The applicant now has filed a second amended statement of claim dated 1 November 2024. The further amended pleading maintains the depositions Judge erred in accepting the complainant’s evidential video interview as sufficient for purposes of the applicant’s committal in November 2008, meaning all consequential steps were nullities resulting in his false imprisonment. The applicant says, in breach of s 115 of the Crimes Act 1961, the Crown conspired falsely to accuse him by continuing with his prosecution. He further asserts the Commission was wrong not to accept his maintained contention and wrong also not to review those decisions of the senior courts contrary to his contention.
[12] Observing the applicant’s failure to replead in accordance with my indications, the Commission renewed its application for the proceeding’s dismissal.
Law on strike out and dismissal
[13]Rule 15.1(1) of the High Court Rules 2016 entitles me to:
… strike out all or part of a pleading if it—
12 S (CA361/2010) v R [2013] NZCA 179; S (SC 39/2017) v R [2017] NZSC 169; S (SC 39/2017) v R [2022] NZSC 7.
13 S v Attorney-General [2022] NZHC 2992.
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
If I do so, I then “may by the same or a subsequent order dismiss the proceeding”.14
[14] An abuse of process is the “improper use of [the court’s] machinery”,15 or the use of a court process “for a purpose or in a way which is significantly different from [its] ordinary and proper use”.16 I have a duty to prevent such abuses.17 Attempted resort to judicial review as a collateral attack on convictions is familiar ground for strike out as an abuse of the process of the court.18
Discussion
[15] The primary subject of judicial review is “the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power”.19 ‘Statutory power’ is defined.20 Judicial review of other exercises of executive power also is available at common law.21
[16] On judicial review, this Court assesses if susceptible powers are exercised “in accordance with law, fairly and reasonably”.22 If not, there only is limited relief the Court may grant,23 and it generally is discretionary,24 if presumed in circumstances in which a claimant is substantially prejudiced by a public decision-maker’s error on
14 High Court Rules 2016, r 15.1(2).
15 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [87], citing Simon Goulding, DB Casson and William Blake Odgers Odgers on Civil Court Actions (24th ed, Sweet & Maxwell, London, 1996) at [10.15].
16 Te Wakaminenga o Nga Hapu Ki Waitangi v Waitangi National Trust Board [2023] NZCA 63, [2023] NZAR 180 at [14], citing Attorney-General v Barker [2000] 1 FLR 759 (QB) at 764.
17 Davis v Robinson [2024] NZCA 599 at [2].
18 Nottingham v District Court at Auckland [2018] NZCA 75 at [10].
19 Judicial Review Procedure Act 2016, s 4.
20 Section 5.
21 Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 at [75], n 62, referring to Burt v Governor-General [1992] 3 NZLR 672 at 676 and 678.
22 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1 NZLR 544 (CA) at 552.
23 Judicial Review Procedure Act, ss 16–19.
24 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [112].
exercise of its power.25 Fairness and reasonableness are terms of art in judicial review, respectively broadly meaning procedurally regular and substantively rational.26
[17] If thus to survive strike out or dismissal, the applicant’s claim accordingly must contend, in exercising its power not to take further action on his application, the Commission has acted unlawfully, unfairly or unreasonably.
[18] Given the Commission’s exercise of its power only relevantly is bounded by its s 24(c) opinion or s 24(d) belief, and it has explained its reasons for that decision
— if not expressly, then at least implicitly — in terms referable to those criteria, there is no foundation for any contention the Commission has acted unlawfully.
[19] Neither is there any basis on which to contend the Commission’s decision was in any way procedurally irregular. The Commission met to consider the applicant’s application, made a decision and conveyed that to him together with its (ultimately, amended) reasons. That has no apparent inconsistency with the rules of natural justice, which requirements are in any event “flexible, and vary depending on the circumstances”, for consideration “in light of the relevant statutory provisions [and] consistent[ly] with the purposes of the legislation”.27 The question is what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.28
[20] The applicant’s open-ended assertion of the Commission’s breach of natural justice in terms of his “right to liberty” under the New Zealand Bill of Rights Act 1990, claimed denied by the Commission’s failure to accept his contentions, is inapposite.
25 Air Nelson Ltd v Minister of Transport [2008] NZCA 26 at [61], referring to Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 at 122 (HC) and Unison Networks Ltd v Commerce Commission CA284/05 19 December 2006.
26 Stafford v Attorney-General [2022] NZCA 165 at [67] and [87]; Dunstan v Credit Union South
[2021] NZCA 656 at [23(c)].
27 Kaimai Properties Ltd v Queen Elizabeth the Second National Trust [2024] NZCA 616 at [51], citing Webster v Auckland Harbour Board [1987] 2 NZLR 129 (CA) at 132, Combined Beneficiaries Union Inc v Auckland City COGS Committee [2008] NZCA 423, [2009] 2 NZLR 56 at [11], Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141 and Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
28 Dotcom v United States of America, above n 27, at [120], citing Daganayasi v Minister of Immigration, above n 27, at 141 and Wyeth (NZ) Ltd v Ancare New Zealand Ltd [2010] NZSC 46, [2010] 3 NZLR 569 at [40]; Greenpeace Aotearoa Inc v Hiringa Energy Ltd [2023] NZCA 672, [2024] NZRMA 93 at [211].
Natural justice here does not compel the Commission to address contended rights breaches, but only to ensure its procedures afford the applicant an informed right fairly to be heard by an unbiased tribunal,29 as he was.
[21] Nor can it be said the Commission’s reasons are substantively irrational. To the contrary, they precisely are based in the now-unimpugnable correctness of progressive senior courts’ prior dealings with the applicant’s convictions. The applicant’s rights of challenge to those decisions having been exhausted, such “final judicial determination is not to be subverted by collateral challenge through further proceedings on the same subject matter”,30 because “finality is integral to justice, because justice is concerned with the determination of rights”.31
[22] Accordingly, the applicant’s judicial review claim as now further amended remains his impermissible collateral attack on those dismissals of his prior challenges. As such a continuing abuse of process, I will strike out his pleading and dismiss the proceeding.
Result
[23] The applicant’s second amended claim is struck out and this proceeding is dismissed.
Costs
[24] If costs are in issue, they are reserved for determination on short memoranda each of no more than five pages — annexing a single-page table setting out any contended allowable steps, time allocation and daily recovery rate — to be filed and served by the Commission within 10 working days of the date of this judgment, with any response or reply to be filed within five working day intervals after service.
—Jagose J
29 Dotcom v United States of America, above n 27, at [118], citing Ali v Deportation Review Tribunal
[1997] NZAR 208 (HC) at 220.
30 Faloon v Planning Tribunal at Wellington [2020] NZCA 170 at [2].
31 At [3], referring to Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [10] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38.
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