Smith v Attorney-General - [2023] NZHC 3082

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2022-419-000022

[2023] NZHC 3082

UNDER THE Judicial Review Procedure Act 2016

IN THE MATTER OF

An application for judicial review

BETWEEN

DENNIS ARTHUR SMITH

Applicant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing: 16 October 2023

Appearances:

Appellant appears in Person

B J Thompson for the Defendant

Judgment:

1 November 2023

JUDGMENT OF POWELL J

[Application to strike out]

This judgment was delivered by me on 01 November 2023 at 4.30 pm pursuant to
r 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors:
Crown Law, Hamilton/B Thompson

DENNIS ARTHUR SMITH v THE ATTORNEY-GENERAL [2023] NZHC 3082 [1 November 2023]

[1] The Attorney-General seeks to strike out judicial review proceedings brought by the applicant, Dennis Smith, against a decision of Judge R G Marshall.1

[2] Mr Smith in turn has filed three cross-applications to adduce further evidence on judicial review, to adduce non-party evidence and an application seeking orders regarding “name correction, transcripts and confirmation of standing”.

The issues

[3] The decision of Judge Marshall is a minute dated 9 December 2021 which, pursuant to s 147 of the Criminal Procedure Act 2011 (“CPA”) dismissed a charge of obtaining by deception that Mr Smith had been facing in the District Court at Hamilton. Judge Marshall’s decision followed an application made by the Crown Solicitor in Hamilton to withdraw the charge under s 146 of the CPA.

[4] It is important to note at the outset that Mr Smith does not take issue with the actual decision made by Judge Marshall. Mr Smith understands that the effect of the order made by Judge Marshall is a deemed acquittal on the charge he faced, and represents the best possible outcome for him once the charge had been laid.

[5] Instead, Mr Smith has raised a number of issues that are primarily focused on the process that saw the charge come before Judge Marshall, including actions taken by the Crown Solicitor, and the way in which Judge Marshall dealt with matters discussed with Mr Smith at the hearing in the District Court. These are reflected in the seven specific issues raised by Mr Smith that underpin his application for judicial review:

(a)That his name was recorded in capital letters in the intituling of Judge Marshall’s minute, when Judge Marshall had noted in the course of the hearing that his Honour had amended Mr Smith’s name by consent (“the correct name issue”).2

1 R v Smith DC Hamilton CRI-2021-068-157, 9 December 2021.
2 At [1(a)].

(b)After discussing Mr Smith’s protest to the jurisdiction of the District Court, Judge Marshall did not note that Mr Smith was, from then on, “under duress” as Judge Marshall had said that he would (“the jurisdiction and duress issue”).

(c)As in the course of the hearing Mr Smith, who had been remanded at large, was referred to by the prosecutor as being on bail, Mr Smith wanted to know why the mistake with regard…

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 Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2023] NZHC 3082
Case: [2023] NZHC 3082
Decision Date: 1 November 2023

CaseChat Overview and Summary

Dennis Smith, the applicant, filed a judicial review application against the Attorney-General, challenging a decision by Judge R G Marshall to dismiss a charge of obtaining by deception. The matter was heard by Powell J, who was tasked with determining whether the application should be struck out as frivolous and/or vexatious. The central issue was whether any of the seven issues raised by Mr Smith could provide a basis for judicial review of Judge Marshall’s decision, which dismissed the charge against him.

The court found that none of the issues raised by Mr Smith provided a justiciable basis for judicial review. The capitalisation of Mr Smith’s name in the intituling of the minute did not have legal significance. Similarly, the lack of a specific reference to Mr Smith being under duress did not affect the validity of Judge Marshall’s decision, as the Court had already acknowledged Mr Smith’s lack of consent to the jurisdiction. Issues regarding the Crown Solicitor’s knowledge, the presence of a particular letter on the Court file, the wording of the minute, and compliance with disclosure requirements did not question the decision itself. The court concluded that the proceedings were frivolous and/or vexatious and therefore struck them out.

In light of the striking out of the application, the court declined Mr Smith’s request for a transcript of the hearing. The court noted that transcripts are not prepared as a matter of course due to the associated time and expense, and there was no good reason in the interests of justice to direct the preparation of a transcript in this case.

Orders