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 to his status was made and he has not received an answer. He therefore seeks an order that the Crown Solicitor answer the question (“the missing information source issue”).

(d)When Mr Smith inquired if the Court had received the letter from the Crown Solicitor in Hamilton seeking to withdraw the charge he was told that it had not, but later found it had been emailed to the Court for which Mr Smith sought an acknowledgement of the error and an apology from the Court (“the missing letter issue”).

(e)Mr Smith considered there had been “mischaracterisation” of the Crown position in the minute,3 and a lack of detail in recording his status as a licensed private investigator (“the mischaracterisation issue”).4

(f)Mr Smith considered at [3] of the minute, Judge Marshall made “two [grammatical] tense errors that mischaracterise reality or omit certain factors” relating to Mr Smith’s pursuit of civil remedies in the Disputes Tribunal (“the tense issue”).

(g)Prior to the Crown Solicitors  application  to  withdraw  the  charge Mr Smith had asked 15 questions of the Crown Solicitor, primarily seeking further information with regards to and/or clarification of the Crown’s evidence supporting the charge against him. Mr Smith wished

3 At [2].

4 At [3].

to have answers to these questions prior to determining the application to withdraw the charge against him but contends that to date the Crown Solicitor has still not responded (“the 15 questions issue”).

[6]                On behalf of the Attorney-General Mr Thompson submitted that none of the issues identified by Mr Smith raised a justiciable issue, and that as a result Mr Smith’s application for review is frivolous and/or vexatious and should be struck out. In the alternative Mr Thompson submitted that Mr Smith’s application was an abuse of process as the correct approach in a criminal matter, if Mr Smith was unhappy with Judge Marshall’s decision, was to appeal that decision.5

Discussion

[7]                The High Court’s jurisdiction to strike out a claim for judicial review is used sparingly. The Court must be certain that a claim cannot succeed before striking it out summarily.6 In Couch v Attorney-General, the Supreme Court observed that “[t]he case must be ‘so certainly or clearly bad’ that it should be precluded from going forward”.7 An application proceeds on the assumption that facts pleaded are true.8 However, it remains open to a court to strike out a proceeding where it is patently and obviously frivolous, hopeless or vexatious.

[8] I begin my analysis by noting that at the hearing, Mr Smith’s approach to his proceedings changed considerably in the course of a useful discussion with me on each of the seven issues set out at [5] above. As I observed to Mr Smith, the correct name issue did not raise any sort of justiciable issue for the Court, let alone one that could impeach Judge Marshall’s decision, precisely because the capitalisation or otherwise of a name has no legal significance.

[9]                In any event, and as Mr Thompson noted, it is clear that Judge Marshall had amended the Crown prosecution notice from SMITH (being typed in all capitals) to

5      It is noted that following the filing of the application to strike out and the submissions on behalf of the Attorney-General, Mr Smith did indeed pursue an appeal to the Court of Appeal. His application for leave to appeal the dismissal of the charge was declined: Smith v R [2022] NZCA 541.

6      Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33] (footnotes omitted).

7 At [33].

8      Attorney-General v Prince [1998] 1 NZLJ 262 (CA) at 267.

Smith with only the first letter capitalised (what Mr Smith refers to as “camel case”). Likewise in the body of his minute, and indeed throughout this judgment, Mr Smith is referred to in the same manner. The only point at which all caps was used in the minute was in fact in the intituling, which, as with this judgment, is the standard practice for all such court documents in the District and Senior Courts.

[10]            Mr Smith likewise accepted in the course of the discussion that none of the third through seventh issues raised in his pleadings in any way call into question the decision made by Judge Marshall which is the subject of the judicial review proceeding. Instead, and as noted, each of those involve issues about the Crown Solicitor’s knowledge of Mr Smith’s bail state, whether a particular letter was on the Court file, issues with the particular wording of the minute and whether the Crown Solicitor had complied with the disclosure requirements relating to the charge. None of these matters can possibly provide a basis for any judicial review of the minute at issue, which, following discussions, Mr Smith appeared to accept.

[11]            This leaves the jurisdiction and duress issue. While Mr Smith was concerned that the lack of specific reference to Mr Smith being under duress meant that a third party reading the minute in the future would not know that that was why he had proceeded to talk to Judge Marshall about the case, like the other issues raised, it does not give rise to any basis for impeaching Judge Marshall’s decision by way of judicial review.

[12]            First, nothing turns on Judge Marshall’s comments that he would specifically “note that you’re under duress”. As I advised Mr Smith, his Honour almost certainly did make a physical note of that point but even if he did not, it is recorded in the transcript of the hearing and is therefore on the official court record for the benefit of posterity.

[13]            Likewise, and in any event, at the beginning of the minute Judge Marshall did explicitly record that Mr Smith did not consent to the jurisdiction of the District Court. His Honour then confirmed the District Court had jurisdiction to deal with the case. It is therefore implicit from the minute that the Court acknowledged that Mr Smith, having disputed the Court’s jurisdiction, did not want to be there and to that extent he

was plainly participating in the hearing involuntarily to some degree, or as Mr Smith termed it “under duress”.

[14]            As a result for the reasons set out above, it is clear that none of the matters raised give rise to any justiciable issues with the decision sought to be challenged by way of judicial review, particularly when the outcome recorded in the minute is not challenged. Given the nature of the decision and Mr Smith’s concern it is equally clear there is no conceivable amendment that would enable the proceedings to continue. Instead, I therefore conclude that from a legal perspective and despite Mr Smith’s genuine intentions to the contrary, the proceedings can only be characterised as frivolous and/or vexatious such that they must be struck out. Given the conclusions I have reached on the Attorney-General’s primary arguments it is not necessary for me to deal with the alternative argument referred above.

Decision

[15]            Mr Smith’s application for judicial review is struck out. Should the Attorney- General seek costs, a memorandum setting out the costs sought is to be filed within two weeks of the date of this judgment. Mr Smith will then have two weeks to reply following which I will determine the issue on the papers.

Transcript

[16]            As the substantive proceedings have been struck out it is not necessary to deal with Mr Smith’s own applications save in one respect, his application for a transcript of the hearing before me. As I explained to Mr Smith at the hearing, requests for access to court documents are governed by the Senior Courts (Access to Court Documents) Rules 2017. The relevant principles were summarised by Gordon J in Wiki v Police:9

As [the appellant] was a party to this appeal, she has a general right to search, inspect and copy any part of the court file or any document relating to the proceeding.10

However, the transcript of [the appellant’s] appeal does not fall within the definition of a document, in the context of an appeal, or within the definition

9      Wiki v Police [2018] NZHC 2378 at [5]–[11] (footnotes included).

10     Senior Courts (Access to Court Documents) Rules 2017, r 9(4).

of the court file.11 That is because there is at present no written transcript of the appeal hearing in this Court. The only resource available is the electronic recording of the hearing.

Therefore, [the appellant] does not have a right to access the transcript. Rule 3(3) provides that the [Senior Courts (Access to Court Documents) Rules 2017] do not require a Registrar or any other person to prepare a document that is not in existence at the time a person asks to access it.

The Court of Appeal stated in Mackenzie v Attorney-General, “[b]ecause there is time and expense involved in the preparation of a transcript of a hearing, transcripts are not prepared as a matter of course”.12

The Supreme Court’s comments in Siemer v Heron provide guidance as to whether [the appellant] should be granted access to the transcript:13

[9]  … There are obvious resource implications if judges direct  court registries to provide parties with transcripts of hearings of appeals and interlocutory matters general on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions …

I also note Dobson J’s comments in Misiuk v Superintendent of a Penal Institution:14

[19] … The resources of the Ministry to undertake  such transcription are limited … Obviously, any widespread practice of producing transcripts of electronic recordings in response to requests

… would create substantial resourcing difficulties for the Ministry.

[17]            Against the decision to strike out the application, I am unable to see any “good reason in the interests of justice” for directing that a transcript of the hearing before me be prepared and provided to Mr Smith, even taking into account the physiological issue Mr Smith brought to my attention at the end of the hearing. There is simply no useful purpose in directing that a transcript be prepared.

[18]The request for production of a transcript is accordingly declined.

Powell J

11     Rule 4.

12     Mackenzie v Attorney-General [2016] NZCA 24 at [22].

13     Siemer v Heron [2011] NZSC 116, [2012] 1 NZLR 293. See also Mackenzie v Attorney-General, above, at [22]; Cook v Housing New Zealand Corporation [2017] NZHC 3202 at [11].

14     Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6625, 8 October 2010.