Thomas v Police

[2025] NZHC 1649

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2025-485-263

[2025] NZHC 1649

UNDER

Part 30 of the High Court Rules 2016,

ss 4, 6, 7 of the New Zealand Bill of Rights Act 1990, ss 3, 30, 39 and 127 of the

Policing Act 2008, s 146 of the Criminal Procedure Act 2011, and the Judicial Review Procedure Act 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

PATRICK ALLAN THOMAS

Applicant

AND

NEW ZEALAND POLICE

First Respondent

POLICE PROSECUTION SERVICE and THE CROWN

On the papers:
Counsel:	Applicant in person
Judgment:	19 June 2025

JUDGMENT OF GRAU J

Introduction

[1]    On 22 April 2025, Mr Patrick Thomas filed a document described as a statement of claim against the New Zealand Police, seeking judicial review of decisions made by the Police and Police Prosecution Service to prosecute Mr Thomas on three criminal charges of threatening behaviour, threatening to damage property, and wilful damage. Mr Thomas’ document was accompanied by an application for

THOMAS v NEW ZEALAND POLICE [2025] NZHC 1649 [19 June 2025]

judicial review, which largely repeated the same allegations and claims, and other supporting documents.

[2]    These documents have been referred to me by the Registrar under r 5.35A of the High Court Rules 2016 (HCR) on the basis that, on its face, the statement of claim and judicial review application are plainly an abuse of the process of the Court.

Relevant law

[3]    If I consider that the documents amount to such an abuse of process, under     r 5.35B of the HCR I may make any orders or give any directions to ensure the proceeding is disposed of, or that it proceeds in a manner that complies with the HCR, including striking out or staying the proceeding under r 15.1 of the HCR.

[4]    When deciding to strike out a proceeding under r 5.35B of the HCR, the Court must determine:1

(a)whether it would be manifestly unfair to the defendants that they be required to respond; and

(b)whether right thinking people would regard this Court as exercising very poor control of its processes if it were to allow the document to be regarded as a proper document, or if it were to allow the proceeding to proceed further.2

[5]    The power under r 5.35B must be exercised sparingly, and only in the clearest of cases, given that the rule contemplates a litigant being denied the fundamental right of access to the courts, with the possibility of the proceeding being halted before it is even served.3

[6]    When considering the application of r 5.35B, the Court must take into account the broad public interest, as well as the private interests of individuals who may

1      Mathiesen v Slevin [2018] NZHC 1032, (2018) 25 PRNZ 116 at [6] citing Mathiesen v Fildes

[2017] NZHC 2258.

2      O’Neill v Judicial Conduct Commissioner [2023] NZCA 152 at [30].

3      Te Wakaminenga o Nga Hapu ki Waitangi v Waitangi National Trust Board [2023] NZCA 63.

otherwise be drawn into entirely unmeritorious proceedings. That must be weighed against the right of a litigant to bring proceedings.4

The documents

The statement of claim

[7]    Mr Thomas’ statement of claim asserts the decision by Police to prosecute him on the three criminal charges outlined above amounts to an abuse of process, breach of statutory duty, procedural unfairness, and a failure to act reasonably or lawfully under applicable New Zealand law.

[8]    Mr Thomas claims he was unlawfully evicted and his property, worth $27,000, was taken or sold by his former landlords, with the Police failing to investigate or lay charges against them, despite him filing multiple “105 reports” documenting these events. He says this Police inaction was in breach of s 127 of the Crimes Act 1961, and s 30 of the Policing Act 2008.

[9]    Mr Thomas says a video he posted on TikTok in June 2023, during a period of homelessness, serious illness and mental distress, was later used as a basis for a charge of threatening behaviour, despite it lacking any specific threat or intent.

[10]   He further argues he was wrongfully charged with threatening property following a frustrated email to WINZ after repeated failures to access medical support services. He refers to ss 101 and 112 of the Social Security Act 2018, the Health and Disability Code 1996, and ss 9 and 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).

[11]   Mr Thomas says a third charge of wilful damage was also laid in October 2023 after he conducted “corrective painting work” at Safari Motels. He claims the Police falsified a Police report, removed evidence from the photos of the scene, relied on a witness who was known to be using methamphetamine, and ignored civil resolution agreements made between the parties.

4      Jones v New Zealand Bloodstock Finance and Leasing Ltd [2021] NZHC 3220 at [20].

[12]   The statement of claim document then proceeds to set out three causes of action as follows:

First Cause of Action: Unlawful Decision to Prosecute

9.The Respondents’ decisions to prosecute the Applicant were made:

a.Without sufficient evidence or investigation;

b.In contradiction to police obligations under the Policing Act 2008 and Crimes Act 1961;

c.With disregard for key context and civil proceedings;

d.In violation of the principles of administrative law and judicial fairness.

Second Cause of Action: Breach of Natural Justice and Due Process

10.The Respondents failed to:

a.Investigate reports made by the Applicant;

b.Interview or charge those responsible for unlawful conduct;

c.Give the Applicant a fair opportunity to be heard;

d.Comply with the requirement under Section 27 of the New Zealand Bill of Rights Act 1990.

Third Cause of Action: Disproportionate and Discriminatory Conduct

11.The Respondents treated the Applicant in a manner that was:

a.Disproportionate (Section 9, NZBORA);

b.Arbitrary, given civil remedies were already being pursued;

c.Indicative   of   systemic   bias   against   a   disabled   and impoverished person.

[13]   The relief Mr Thomas seeks is a declaration that the prosecutions were unlawful and constitute an abuse of process, an order quashing all three criminal charges, an order directing the New Zealand Police to reopen and properly investigate the original tenancy-related offences reported by Mr Thomas, and an order for costs.

The application for judicial review

[14]   In the judicial review application document, Mr Thomas states he seeks judicial review of the respondents’ decision to prosecute him on three criminal charges

which he says constitutes an abuse of process, violates fundamental legal rights, and is grounded in unlawful and unreasonable administrative and investigatory conduct.

[15]   Mr Thomas sets out four grounds of review. First, he claims the respondents have breached s 30 of the Policing Act 2008, by failing to investigate and in selectively prosecuting Mr Thomas despite credible evidence of unlawful eviction, theft and assault by third parties. He says there is no evidence of criminal intent, immediate threat, or danger to any person in the actions giving rise to the charges and the prosecutions constitute a clear breach of s 146 of the Criminal Procedure Act 2011.

[16]   Secondly, he says the failure to investigate his original complaints properly while advancing the prosecutions against him without sufficient evidentiary basis violated s 27(1) of NZBORA—the right to natural justice. He notes the multiple 105 reports he submitted to Police were either ignored or dismissed without proper enquiry, in breach of s 127 of the Crimes Act 1961.

[17]   Thirdly, he claims that laying charges for behaviour rooted in mental health distress, medical hardship and administrative failure amounts to disproportionate treatment under s 9 of NZBORA. He says the Police response criminalises poverty, disability and trauma and ignores repeated breaches of the Residential Tenancies Act 1986, including ss 54, 63A, 60B and 65.

[18]   Lastly, he says decisions to prosecute him were made in ignorance or dismissal of critical context, namely the ongoing tenancy tribunal proceedings addressing the root dispute, medical certification confirming permanent disability, civil agreements with the parties now being used as prosecution witnesses, and evidence of Police tampering and selective omission of materials, including photographs and witness statements. He says such omissions represent errors of law and fact, and a breach of the principles of public law.

[19]   He seeks largely the same relief in his application for judicial review as in his statement of claim.

Supporting documents

[20]   Mr Thomas has also filed a number of supporting documents. These include tax receipts from various medical appointments, photographs of medical documents, screenshots of emails discussing emergency housing, photographs of a tent, a photograph presumably of Mr Thomas sleeping in his car, a screenshot of a text message from someone offering accommodation, and a screenshot of what appears to be a Police discussion of a bail condition not to enter Taihape.

[21]   Mr Thomas  has  also  filed  the  charging  documents,  which  allege  that  Mr Thomas threatened to throw a brick through the glass door of the Ministry of Social Development’s office in Taihape and “destroy the office beyond recognition”, that he intentionally damaged a room at the Safari Motel in Taihape with a sharp blade after claiming he had not been paid for paint work he had done, and that Mr Thomas threatened to injure his former landlord, saying he would “razz you up mother fucker” and “take my stuff back by force”.

Discussion

[22]   I consider that several aspects of Mr Thomas’ purported statement of claim and application for judicial review fail to disclose a valid cause of action. First, I do not consider he has a valid claim in respect of the Police’s failure to investigate his complaints regarding alleged eviction and theft. Eviction is not a criminal matter, but rather is governed by the Residential Tenancies Act 1986 and overseen by the Tenancy Tribunal. It is not within the Police’s jurisdiction to investigate tenancy disputes. I note that it appears tenancy tribunal proceedings have already commenced, with the application for judicial review noting “ongoing tenancy tribunal proceedings addressing the root dispute”.

[23]   It has also long been recognised that, while the Police owe a general duty to the public to enforce the criminal law, they owe no duty of care to the public generally in relation to the conduct of investigation or suppression of crime, except in exceptional cases.5 The Commissioner of Police necessarily retains a broad discretion

5      Bowerman v Goodfellow [2024] NZHC 2790.

as to how the Police uses its resources to discharge its functions. As noted by Chambers J, resource issues and how police are deployed are for the Commissioner or his  local  commanders,  not  the  Courts.6  Furthermore,  the  provisions  cited  by  Mr Thomas, being s 30 of the Policing Act and s 127 of the Crimes Act, do not relate to any duty to investigate crimes, as Mr Thomas claims.7

[24]   The failures to investigate also do not amount to a breach of s 27 of NZBORA. Section 27 concerns the right to observance of the principles of natural justice by a public body with the power to make a determination in respect of a person’s rights, obligations or interests protected or recognised by law, as well as the right to bring judicial review or civil proceedings against the Crown. It concerns fair process in legal proceedings, rather than a right or expectation that Police will investigate a complaint. Mr Thomas’ concerns are addressed by the availability of bringing a private prosecution under s 26 of the Criminal Procedure Act.

[25]   In terms of the decision to prosecute Mr Thomas, while Mr Thomas cites the Policing Act and Crimes Act in his statement of claim, they do not provide a basis to challenge a decision to prosecute and/or charge. Section 146 of the Criminal Procedure Act (CPA), referred to in Mr Thomas’ application for judicial review, concerns the ability of the prosecutor to withdraw a charge before trial, rather than any basis for a defendant to contest a charging decision. Instead, through the criminal process, Mr Thomas retains the ability to apply for his charges to be dismissed, under s 147 of the CPA.

[26]   While it is possible to judicially review a decision to prosecute, I note here that the courts are reluctant to exercise the power to review such a decision, unless there are exceptional circumstances, such as where the decision is made in bad faith, dishonestly, or irresponsibly.8 As noted in Polynesian Spa Ltd v Osborne, the defendant has a further opportunity to defend the prosecution in Court and, if

6      Evers v Attorney-General [2000] NZAR 372 at [14].

7      Section 30 of the Policing Act concerns obligations of Police employees to obey instructions, orders and commands. Section 127 of the Crimes Act provides there is no presumption that a person is incapable of sexual connection because of their age.

8      Jeremy Finn and Don Mathias Criminal Procedure in New Zealand (3rd ed, Thomson Reuters, Wellington, 2019) at [3.4].

necessary, on appeal.9 Some of Mr Thomas’ allegations, namely of falsifying a Police report, removing evidence from photographs, and relying on unreliable witness testimony, could potentially amount to exceptional circumstances. But Mr Thomas makes bare assertions of misconduct; he has not provided sufficient particulars or pleadings. I note too that some of the documents Mr Thomas has filed with his application and statement of claim appear to contain evidence against him which would support the charges.

[27]   In relation to the claims of disproportionate treatment under s 9 of NZBORA, for treatment to be considered “disproportionately severe” as required under the Act, it must be treatment that “New Zealanders would nevertheless regard as so out of proportion to the particular circumstances as to cause shock and revulsion”.10 That is necessarily a very high threshold. While Mr Thomas may have been experiencing mental distress when he committed the acts which resulted in him being charged, that does not of itself make the decision to charge him “disproportionate treatment”.

[28]   Furthermore, there does not appear to be any basis for the Court to direct the Police to reopen and investigate the offences alleged by Mr Thomas. As noted in Sathyan v Commissioner of Police, it is for the Commissioner to decide whether inquiries should be pursued, and the Court may not direct him in such a matter.11

[29]   A proceeding that lacks a cause of action or grounds on which the plaintiff can seek relief can be struck out as plainly abusive.12 However, where there is a viable claim that the plaintiff may be able to salvage, the Court may instead stay the proceeding and seek further information, or direct the plaintiff to amend the application or statement of claim to provide better particulars.13

[30]   I consider that in this case, if the Court were to accept the statement of claim and the application for judicial review for filing, it would be regarded as having poor

9      Polynesian Spa Ltd v Osborne HC Rotorua [2005] NZAR 408 at [84].

10     Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [172].

11     Sathyan v Commissioner of Police [2015] NZHC 3138, [2016] NZAR 175 at [28].

12     Tranter v Manager Telestra Clear NZ Ltd [2022] NZHC 456 at [13]; and O’Neill v Judiciary of Auckland High Court [2023] NZCA 153.

13     Jessica Gorman and others McGechan on Procedure (online ed, Thomson Reuters) at [HR5.35A.01]

control of its processes. The vast majority of the claims in the documents fail to disclose a valid cause of action, and therefore amount to an abuse of process. However, I consider that Mr Thomas may have a salvageable claim in respect of his judicial review of Police’s decision to prosecute him. I therefore do not consider this to be a case where striking out the claim in its entirety now is warranted. Rather, I consider that Mr Thomas should have the opportunity to amend his statement of claim to remove irrelevant and/or meritless claims, and properly particularise his claim in respect of the Police prosecution decision. In particular, he will need to provide details about how the misconduct he has alleged was undertaken and how it resulted in him being wrongly prosecuted. However, the document titled application for judicial review is repetitive of his statement of claim and should therefore be struck out.

[31]   Mr Thomas also needs to provide further information about the progress of the prosecution against him. I note the charges on their face appear to have been before the District Court since October 2023. Some of his supporting documents discuss a Judge-alone trial, as well as Mr Thomas seeking a jury-trial; although a jury trial would not appear to be available on his charges. It is unclear whether any trial has taken place or is in prospect. If Mr Thomas has been convicted, it would likely be more appropriate for him to pursue an appeal against conviction.

Directions

[32]I therefore make the following directions pursuant to r 5.35B(2) of the HCR:

(a)This proceeding is stayed until further order of the Court.

(b)The application for judicial review is struck out.

(c)No application to lift the stay may be heard until:

(i)Mr Thomas has filed an amended statement of claim that:

(1)removes the meritless claims in respect of the Police’s decision not to investigate Mr Thomas’ complaints and in

relation to alleged disproportionate treatment under s 9 of the NZBORA;

(2)removes the relief sought in terms of a direction that Police investigate his complaints; and

(3)provides further particulars to support his application for judicial review of the Police decision to prosecute him, specifically particulars as to how there are circumstances that would justify a judicial review of the prosecution decision.

(ii)Mr Thomas has clarified whether he has been tried on his charges, and if he has not yet been tried, whether a trial date has been set down.

[33]   If no amended statement of claim and further information on his charges, in compliance with the above directions, is filed in the Court by 5.00pm on 26 July 2025, the proceeding will be deemed to be struck out without further order of the Court.

[34]   If Mr Thomas filed an amended statement of claim as directed, it is to be referred to me to determine whether it complies with the above directions and whether the stay can be lifted and the document accepted for filing.

[35]   Under r 5.35B(3), I am required to advise Mr Thomas that, under s 56 of the Senior Courts Act 2016, he has the right to appeal this decision to the Court of Appeal in accordance with the Court of Appeal (Civil) Rules 2005.

Grau J

cc:        P A Thomas