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S v Criminal Cases Review Commission

S v Criminal Cases Review Commission

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Case Copied 17 December 2024 14 min read

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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, Auckland
A 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…

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.

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Details

Case: [2024] NZHC 3856
Decision Date: 17 December 2024

CaseChat Overview and Summary

The applicant, S, sought judicial review of the Criminal Cases Review Commission's decision not to proceed with his application for review of his sexual violation convictions from 2010. The applicant, sentenced to 16 years in prison with a minimum term of 10 years, argued that his convictions resulted from the depositions Judge's decision to commit him to trial based on inadmissible evidence. The Commission had declined to refer the case to an appeal court, leading the applicant to contend the Commission's decision was erroneous. The Commission's primary function is to refer convictions or sentences to the appeal court if it considers it to be in the interests of justice. It operates under the principles of the Treaty of Waitangi and must act independently, impartially, and fairly. The Commission assessed the applicant's application and decided not to proceed with it, citing the applicant's exhaustion of appeal rights and the absence of grounds that would satisfy the interests of justice test.

The court had to determine whether the Commission's decision not to proceed with the applicant's application was lawful, fair, and reasonable. The court assessed whether the Commission had exercised its power correctly, if its decision was procedurally regular, and if its reasons were substantively rational. The court noted that the Commission's decision was based on the correctness of prior judicial determinations and that the applicant's rights of challenge to those decisions had been exhausted. The court found that the applicant's claim was an impermissible collateral attack on those dismissals of his prior challenges. Therefore, the applicant's judicial review claim was an abuse of process, leading to the striking out of his pleading and the dismissal of the proceeding.

The court's judgment dismissed the applicant's claim and struck out his pleading. The court held that the Commission had not acted unlawfully, unfairly, or unreasonably in its decision. The Commission's reasons were based on the unimpeachable correctness of prior judicial determinations. The court found that the applicant's claim was an abuse of process, as it was a collateral attack on those dismissals. Consequently, the proceeding was dismissed, and costs were reserved for determination on short memoranda.

Orders