Tomar v Police

[2019] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2019-463-000068

[2019] NZHC 1893

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of judicial review

BETWEEN

AKHIL TOMAR

Applicant

AND

NEW ZEALAND POLICE

Respondent

On the papers
Judgment:	6 August 2019

JUDGMENT OF DUFFY J

This judgment is delivered by me on 6 August: 2019 at 10.00 am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Crown Law, Wellington

Party:

Applicant

TOMAR v NEW ZEALAND POLICE [2019] NZHC 1893 [6 August 2019]

[1]    Akhil Tomar has presented the Registry of this Court with a notice of proceeding and statement of claim seeking judicial review of a decision of the New Zealand Police, refusing to commence a prosecution against Liza Roberts. He has also filed an application for waiver, or refund, of fees.

[2]    The Registrar has referred the proposed filing to me for directions whether it should be accepted under High Court Rules 2016 r 5.35A:

5.35A Registrar may refer plainly abusive proceeding to Judge before service

(1)   This rule applies if a Registrar believes that, on the face of a proceeding tendered for filing, the proceeding is plainly ab abuse of the process of the court.

(2)  The Registrar must accept the proceeding for filing if it meets the formal requirements for documents set out in rules 5.3 to 5.16 [Formal requirements for documents, heading of court documents]

(3)  However, the Registrar may,-

(a)  as soon as practicable after accepting the proceeding for filing, refer it to a Judge for consideration under rule 5.35B; and

(b)  until a Judge has considered the proceeding under that rule, decline to sign and release the notice of proceeding and attached memorandum for the plaintiff or the applicant (as appropriate) to serve the proceeding

[3]Rule 5.35B provides guidance on how to deal with this matter. It provides:

…

(2)    The Judge may, on his or her own initiative, make an order or give directions to ensure that the proceeding is disposed of or, as the case may be, proceeds in a way that complies with these rules, including (without limitation) an order under rule 15.1 that-

(a)  the proceeding be struck out:

…

(3)   Rule 7.43(3) does not apply. However, if a Judge makes an order on the Judge’s own initiative without giving the person who filed the proceeding an opportunity to be heard, the order must contain a statement of that person’s right to appeal against the decision.

(4)  A copy of a Judge’s decision to strike out a proceeding must, if practicable, also be served on the person named as a party or, if more than 1 person is named, those persons named as parties to the proceeding.

[4]    A proceeding can rightly be struck out under this rule if I am satisfied the proceedings are “plainly an abuse of the process of the court”.1 The Court has adopted a two-pronged test for strike out purposes under this rule, requiring consideration of:2

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

(b)  whether “right thinking people” would regard the Court as exercising very poor control of its processes if it were to allow the applicants’ document to be regarded as a proper document.

[5]    In Smyth-Davoren v Parker the Court considered that proceedings which did not set out a legal cause of action, let alone one that could properly be brought against the defendants, were an abuse of the process of the court. The proceedings were not capable of being amended to fix the defects, and were accordingly struck out.3 In Tranter v R, the applicant applied to judicially review a decision made in the course of a High Court trial. The issues the applicant wanted to review were also co-extensive with issues before the Court of Appeal. Osborne J struck out the proceeding under r 5.35B on the grounds that this form of judicial review was unknown to the law.4

[6]    A proceeding might also be an abuse of the process of the court when it has been submitted in pursuit of a collateral advantage.5

[7]    The understanding of the issues I have gained from reading the statement of claim is that Mr Tomar and Ms Roberts were once in a domestic relationship. He contends that during the course of the relationship she assaulted him on a number of occasions. He has complained to the police about these alleged assaults. The police have decided not to charge Ms Roberts and in Mr Tomar’s view they have provided him with minimal reasons for this decision.

[8]    Accordingly, he seeks to judicially review the police decision on the grounds of error of law, unreasonableness and breach of the rules of natural justice. All grounds

1      This power is also available under the inherent jurisdiction of the Court. See generally: Mathiesen v Fildes [2017] NZHC 2258, (2017) 24 PRNZ 405 at [4].

2      Mathiesen v Slevin [2018] NZHC 1032 at [6].

3      Smyth-Davoren v Parker [2018] NZHC 3034.

4      Tranter v R [2019] NZHC 244.

5      Commissioner of Inland Revenue v Chesterfield Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].

of review relate to the police handling of the investigation into his complaint against Ms Roberts and the decision not to lay criminal charges against her.

[9]    The difficulty Mr Tomar faces is that it is well settled that there is a prosecutorial discretion whether to lay charges or to prosecute charges laid under the Crimes Act 1961. The issue is well considered in the decision Saywell v Attorney-

General.6

[10]To like effect is Thompson v Attorney-General where Pankhurst J said:7

Throughout the common law world there was general acceptance that the court should not be involved in the exercise of a prosecutorial discretion.

[11]And in Police v Hall, the Court of Appeal said:8

…it must normally be regarded as inappropriate for a judicial officer, whether Judge or Magistrate, to control executive officers in their decision as to the initiation of prosecutions. Public confidence in the essential detachment of the judiciary would be affected if they seemed to be taking a hand in the formulation of charges in the criminal Courts.

[12]   Furthermore, the decision not to prosecute can properly be seen as a collateral attack on Ms Roberts. The applicant is currently in prison for offences committed against her.

[13]   Accordingly, there is no foundation for the proposed proceeding. If it were commenced it would attract a strike-out application by the New Zealand Police, which would inevitably be successful. It is not possible to amend these defects. I do not consider the defendants should have to be required to file a defence to claims that are not legally available against them.9 Nor do I consider that the Court would be properly regulating its processes if I allow the claim to proceed.

6      Saywell v Attorney-General [1982] 2 NZLR 97 (HC).

7      Thompson v Attorney-General [2000] NZAR 583 at 584.

8      Police v Hall [1976] 2 NZLR 678 (CA) at 683.

9      Smyth-Davoren v Parker, above n 3, at [8].

Result

[14]   These proceedings are struck out. In accordance with r 5.35B(3), Mr Tomar has a right of appeal against this decision.

[15]   A copy of this decision is to be served by the Registrar on the New Zealand Police, pursuant to r 5.35B(4).

[16]   The decision I have reached renders the application for waiver of fees redundant and for this reason it is dismissed.

Duffy J