Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62; (2002) 19 CRNZ 378 (8 July 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/01

	BETWEEN	ALISTAIR JOHN FRANCIS FOX
		Appellant

	AND	THE ATTORNEY-GENERAL
		First Respondent

	AND	THE DISTRICT COURT AT NEW PLYMOUTH
		Second Respondent

Hearing:	6 May 2002
Coram:	Gault P Keith J Blanchard J McGrath J Anderson J
Appearances:	C P Brosnahan and D M Goodlet for the Appellant N M Crutchley and M F Laracy for the First Respondent S B W Grieve QC for the Second Respondent
Judgment:	8 July 2002

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Table of Contents

Paragraph Number

Introduction [1]

The Facts [2]

The charges against the appellant [8]

The District Court decision [14]

Sentencing [17]
The High Court proceeding [18]

Submissions on Appeal [22]

The constitutional position [28]

Abuse of court processes [32]

Decision: error of law [38]

Decision: relief refused [52]

Introduction

[1] This appeal is concerned with whether it was an abuse of process for the police to lay fresh charges against an accused with whom they had reached an agreement as to the charges he would face in respect of his alleged offending. Prior to the police decision to lay fresh charges the accused had pleaded guilty to and been convicted of the agreed charges but had not been sentenced by the District Court.

The facts

[2] On 24 November 2000 the appellant, Mr Fox, spent the evening drinking at licensed premises in the central business district of Hawera. He emerged at around 12.30am and stood for a while on the corner of Regent and High Streets talking with others. Earlier in the evening he had armed himself with a .22 calibre single shot pistol along with a packet containing 48 rounds of .22 ammunition. As he stood outside at 12.30am the loaded firearm was in a pocket inside the oilskin vest he was wearing.
[3] Directly across the road from the appellant was Mr Hawe who was standing on the roadside talking to three associates. The appellant crossed the road and walked through that group. As he did so he said “Do I have to walk through this shit.” Mr Hawe asked the appellant what he had said, whereupon the appellant pulled the loaded pistol from his pocket, pointed it at the victim and pulled the trigger firing the pistol.
[4] The bullet entered Mr Hawe’s left upper shoulder, travelled through the top of his arm and lodged in his anterior chest wall muscle. He was able to run away around a corner before collapsing. He was later attended by an ambulance and the police and treated in hospital.
[5] The appellant returned the pistol to his vest pocket and walked up High Street then through an arcade and a car park in the direction of his home.
[6] The summary of facts, later agreed on by the police and the appellant’s counsel and put before the District Court, states what followed:

As the defendant walked along Victoria Street outside St Joseph’s Church where there are a number of dwelling houses he fired another shot from his .22 pistol and continued walking towards his home address.

The witness can not be sure where he was pointing the pistol when he fired it the second time.

As he reached his home address he was stopped by a Police Inspector and an armed constable who tried to negotiate with him.

The defendant was aggressive, intoxicated, and extremely uncooperative with the attending police and the constable eventually tackled the defendant and arrested him.

[7] Subsequently the appellant admitted what had taken place and that he had another firearm, a sawn-off shotgun hidden at his home. This was located in the course of a search under warrant of his home.

The charges against the appellant

[8] On 28 November 2000 informations were laid indictably in the District Court at Hawera charging the appellant with:

(a) wounding with intent to cause grievous bodily harm (s188(1) of the Crimes Act 1961)

(b) being unlawfully in possession of a pistol (s50(1)(a) of the Arms Act 1983)

(c) discharging a pistol with reckless disregard for the safety of others, without reasonable cause (s53(3) of the Arms Act)

(d) carrying a pistol except for some lawful proper and sufficient purpose (s45(1)(a) of the Arms Act)

[9] Thereafter counsel acting for the appellant, Mr Brosnahan, met with the officer in charge at the Hawera Police Station and they had discussions about the appropriateness of the charges the police had laid. There were also subsequent ongoing discussions between Mr Brosnahan and Inspector Shepherd, and later Detective Sergeant Sutton who was head of the Hawera CIB. Eventually agreement was reached between the police and counsel on the charges that the police would proceed with. The matter was called in the District Court on 6 March 2001 and the police, with the leave of the Court under s36 of the Summary Proceedings Act 1957, withdrew the charge of wounding with intent to cause grievous bodily harm and substituted the less serious charge, under s188(2) of the Crimes Act, of wounding with intent to injure. The two charges that had been laid under s53(3) and s45(1)(a) of the Arms Act were also withdrawn but without fresh charges being substituted.
[10] The appellant, as his counsel had intimated he would, then pleaded guilty to the substituted charge of wounding with intent to injure and the original charge of unlawful possession of a pistol. He was convicted by the District Court Judge and remanded for sentence.
[11] From the appellant’s viewpoint the agreement as to the charges and pleas had two advantages. First, on pleading guilty, the appellant would be convicted of an offence under s188(2) of the Act carrying a maximum penalty of 7 years imprisonment rather than under s188(1) under which he would face up to 14 years imprisonment. Secondly the appellant would not be convicted of the offence specifically charged in relation to the shot he had fired while walking along Victoria Street.
[12] In accordance with what we were told is settled Crown practice when a defendant is to be sentenced in the District Court, having pleaded guilty to a charge laid indictably, the police then referred their file to the local Crown Solicitor, Mr Brewer, with instructions to appear for the police at the sentencing of the appellant.
[13] Mr Brewer was not asked to give advice on the appropriateness of the agreement as to the charges the appellant would face and to which he would plead guilty. He nevertheless saw it as his responsibility to tell the police that in his view those charges did not adequately reflect the overall criminality of the appellant’s offending. Mr Brewer advised the police that in his view the withdrawn firearms charges should be relaid. On 19 March 2001 fresh informations were laid accordingly containing the two Arms Act charges set out in paragraph 8(c) and (d) above.

The District Court decision

[14] On 26 March 2001 the District Court heard an application by the appellant to dismiss the additional charges as an abuse of the Court’s processes. In an agreed statement of facts later put before the High Court it was said that in reaching the agreement on charges the police had taken into account the likely result on sentencing, namely “a significant term of imprisonment being imposed for the section 188(2) charge.” The police also took into account the Hawera CIB unit’s staffing situation. Fifty to seventy five percent of its staff had been absent from duty since the beginning of the year fully extending the available resources of the unit. There was a significant inquiry backlog.
[15] Judge Harding delivered an oral judgment in which he held that the laying of fresh charges was oppressive conduct by the Police and an abuse of the Court’s processes. Of the explanation that the decision had been influenced by a lack of police resources he said:

As a matter of every day routine, accommodations are reached between the Police and the defence about charges to be continued with and withdrawn. It is proper that such arrangements, if made after due consideration at appropriate level, be relied on. It is no excuse in my view, to say that an incorrect decision was reached through overwork and lack of resources.

[16] The Judge took the view that the Court’s processes were involved in what the Police had done, as the Court had given leave to withdraw the charges after the agreement had been reached by prosecution and defence. It was not in his view possible to return the appellant to his position prior to that agreement by permitting withdrawal of his pleas. Some prejudice would unavoidably remain. If the Court were to permit the police to backtrack on the arrangement that would bring the administration of justice into disrepute. The relaid charges were accordingly dismissed. The matter was then adjourned for sentencing on 5 April 2001.

Sentencing

[17] By 5 April the Crown had decided to seek judicial review of the dismissal of the relaid charges. The Judge refused a police application to adjourn sentencing pending the outcome of that proceeding. Submissions then made on penalty by counsel who appeared for the police included reference to the additional shot in Victoria Street as being an aggravating factor. The Judge sentenced the appellant to 5 years imprisonment on the charge of wounding with intent, under s188(2) of the Act, and to 4 months imprisonment, to be served cumulatively, in respect of possession of a pistol, being the cut down shotgun found at the appellant’s home.

The High Court proceeding

[18] Proceedings were issued in the High Court by the Attorney-General on 11 May 2001 seeking judicial review of the District Court’s decision to dismiss the relaid charges. They came on for hearing before Smellie J who delivered judgment on 11 July 2001 (M19/01, New Plymouth). Smellie J cited Moevao v Department of Labour [1980] 1 NZLR 464 CA as establishing the threshold to be met before a court would stay prosecutions on account of misuse by prosecutors of its processes. He said that the stay jurisdiction was one the courts exercised sparingly and only in cases where the abuse amounted to a wrongful use of the processes of the court itself. Even where the case involved elements of prosecutorial oppression, illegality or abuse of authority, if the outcome fell short of such a wrongful use of the Court’s process it should not intervene.
[19] In Smellie J’s view the desirability of courts being able to rely on routine accommodations reached between the police and defendants concerning charges did not mean departures from such agreements by prosecuting agencies would necessarily amount to abuse of Court processes. A greater degree of prejudice to the defendant was required to meet the threshold than merely departing from an agreement. Smellie J also distinguished the decision of the High Court in Delellis v R (1989) 4 CRNZ 60. There Sinclair J had ruled that an accused who had made an admission as to where cocaine was hidden, on the basis of a promise that he would not be prosecuted for importing it, should not be arraigned for that offence. The accused in that case had irretrievably changed his position to his prejudice on the basis of the agreement to the extent that it was an abuse of process for the charge to proceed. By contrast Mr Fox enjoyed a continuing benefit, which outweighed the detriment in the laying of further charges, through the reduction of the charge under s188(1) to one under s188(2). As he had been convicted on the less serious charge the principle of autrefois convict precluded a subsequent prosecution for a more serious charge in respect of the same offending. Furthermore, no Court would permit evidence of the guilty plea to be admitted were Mr Fox to defend the newly laid Arms Act charges.
[20] On this basis the High Court held the District Court’s decision that there had been an abuse of process was wrong. The High Court Judge also expressed his agreement with a Crown submission that the District Court’s ruling that the Crown was bound by accommodations reached with persons charged with criminal offending failed to take into account the different roles and duties of the Police and the Law Officers of the Crown in relation to their overall responsibility for conduct of criminal proceedings. Reference had been made in argument to the power of a Crown Solicitor to include in an indictment any charges against a person committed for trial that had a foundation in depositions, whether or not they had been earlier laid by the police (see s345 Crimes Act 1961). The Judge here appears to have accepted counsel’s suggestion that the Crown Solicitor’s advice to the police was given on behalf of the Solicitor-General.
[21] For these reasons Smellie J held that the dismissal of the relaid charges by the District Court for abuse of process was in error. He set aside the dismissal of the information charging the appellant with discharging a pistol with reckless disregard for the safety of others and directed that it proceed to trial. But in relation to the District Court’s dismissal of the information for unlawfully possessing a pistol, Smellie J exercised his discretion to refuse the Crown relief. In his view the charge of unlawfully possessing a pistol was in effect subsumed in the wounding charge. From this we gather he did not consider it related to the finding of the sawn off shotgun in the appellant’s home. In the Judge’s view the penalty imposed on conviction would have been imprisonment for a term less than the 5 years imposed on the wounding charge and would be served concurrently with that term. The District Court’s decision to dismiss that charge was accordingly not set aside.

Submissions on appeal

[22] In this Court Mr Brosnahan submitted that confidence in the Court’s processes of administering justice would be eroded and brought into public disrepute if the Court were to permit a litigant unilaterally to depart from a fully and fairly negotiated agreement on charges to which he had then pleaded, in the absence of a subsequent change in circumstances making that proper. He relied on Moevao v Department of Labour (supra), Delellis v R (supra), and a passage in R v Bloomfield [1996] EWCA Crim 1801; [1977] 1 Cr App Rep 135, where Staughton LJ said at p143:

The statement of the prosecution that they would offer no evidence at the next hearing was not merely a statement made to the defendant or to his legal representative. It was made coram judice, in the presence of the Judge. It seems to us that whether or not there was prejudice it would bring the administration of justice into disrepute if the Crown Prosecution Service were able to treat the Court as if it were at its beck and call, free to tell it one day that it was not going to prosecute and another day that it was.

[23] Mr Brosnahan accepted that s36(3) of the Summary Proceedings Act allowed informations to be relaid. The circumstances in which the police had reached this particular agreement, however, including the considered nature of their decision and the involvement in it of senior police personnel, made the present case one where it was an abuse of process to do so. These features also distinguished the facts in the present case from those in Morgan v Ministry of Transport [1980] 1 NZLR 432.
[24] Mr Brosnahan argued that this was a case in which the Court’s processes would be brought into disrepute if it were seen to be permitting the Crown to resile from its agreement. The appellant would suffer serious prejudice in that admission of his guilt had been made in public in the District Court. This would affect his ability to receive a fair trial in his community. The main point however was that backtracking was inappropriate.
[25] Mr Brosnahan also criticised the finding that the powers of the Solicitor-General, which he described as “negative powers” principally concerned with staying prosecutions, were in point. The discretion to prosecute here was that of the police, who were persuaded by the Crown Solicitor who happened to see the file before sentencing, that they should seek to renege on the agreement they had made. What had happened did not involve the powers of the Law Officers at all.
[26] Ms Crutchley for the Crown argued that Smellie J had correctly applied the principles applicable to abuse of court processes by prosecutors in holding that the District Court finding of abuse of process was in error. A backtracking by the police from an agreement, in order to bring the full range of criminal offending before the Court, was not of itself sufficient to found a finding of abuse of process in the absence of prejudice. There was no prejudice in the present case as the defendant had the continuing benefit of the reduced wounding charge. Nor did the Judge’s exercise of a discretion under s36 of the Summary Proceedings Act 1957 to give leave to withdraw the charges make a decision to relay them an abuse of court process. The matter had not involved a status hearing presided over by a Judge. The Crown suggested that the appellant’s criticism of the High Court Judge’s view of the relevance of the role of the Solicitor-General failed to recognise that the source of the Law Officers’ powers was the prerogative as well as legislation.
[27] This Court also had the assistance of a submission from Mr Grieve QC in relation to the position of the District Court which is the second respondent. He drew our attention to the importance of the efficient conduct and disposition of the work in the criminal jurisdiction of that Court and the desirability in that context that procedural agreements that are reached and any undertakings that are given are adhered to.

The constitutional position

[28] In our system of government the discretion to prosecute on behalf of the state and to determine the particular charges a defendant is to face is part of the function of executive government rather than the courts. That allocation of the function recognises the governmental interest in seeing that justice is done and community expectations that criminal offenders are brought to justice are met.
[29] There are various mechanisms for the accountability of those making prosecutorial decisions within structures of government and as part of the government’s own responsibility to the House of Representatives. These apply whether prosecution decisions are taken by law enforcement agencies such as the Police, the Serious Fraud Office, or other government departments or public agencies, or by the Law Officers of the Crown, the Attorney-General and Solicitor-General, who have an overall responsibility for prosecution processes. The Attorney-General is, as well as being the senior Law Officer, the Minister directly responsible for the conduct of prosecutions laid indictably, once they have reached the stage of committal for trial following depositions. Other Ministers are likewise responsible to Parliament for conduct of particular prosecutions by the departments for which they are responsible. In all cases independence from political direction of prosecutorial decision making is an established constitutional practice in New Zealand. It is often reflected explicitly or implicitly in the legislative framework governing such departments and other public bodies and public officials. It is especially reflected in the role of the Solicitor-General in the prosecution process in New Zealand (J. Ll. J. Edwards, The Attorney-General, Politics and the Public Interest (1984) Sweet & Maxwell, pp 391-396; Joseph, Constitutional and Administrative Law in New Zealand (2ed), Brookers, paras 9.5(3) and 25.8.2; Huscroft, The Attorney-General, the Bill of Rights and the Public Interest, in Huscroft and Rishworth, Rights & Freedoms, (1995), Brookers p135).
[30] A decision by a public official to prosecute in any case involves the exercise of a discretionary public power. There are prosecution guidelines issued by the Solicitor-General which discuss that discretion and indicate how it is to be exercised. The current Prosecution Guidelines are reproduced in Criminal Prosecution (NZ Law Commission Preliminary Paper 28 (1997), Appendix B). When considering whether to prosecute para 3 of the Law Commission paper states “there are two major factors to be considered: evidential sufficiency and the public interest”. The latter aspect requires consideration of “whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed” (Para 3.3.1).
[31] The courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the court’s own function of responsibility for conduct of criminal trials. This reluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions (see R v Humphreys [1977] AC 1, 46 per Lord Salmon; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 94-95 per Gibbs CJ and Mason J; and R v Jewett (1985) 2 SCR 128, para 25 per Dickson CJC; R v Power (1994) 89 CCC 13 to 20, per L’Heureux-Dubré J delivering the majority judgment of the Supreme Court of Canada).

Abuse of court processes

[32] At one time the principle that the courts should not intervene in the prosecutorial process gave rise to the view that the courts lacked jurisdiction to stay a criminal prosecution for abuse of court processes. That view was discarded in Connelly v Director of Public Prosecutions [1964] AC 254 when a majority of the House of Lords recognised that there was a residual discretion to stop criminal proceedings where their continuation would be an abuse of the court’s processes. Since Connelly the focus of the courts has been on clarifying what will amount to abuse of court processes in this context. There are valuable discussions of the principles on which the courts will characterise actions of the prosecution prior to trial as abuse of court processes, and the reasons for those principles, in the judgments delivered in this Court in Moevao v Department of Labour [1980] 1 NZLR 464. In particular that of Richardson J stated:

The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. (p482).

[33] Richardson J went on to elaborate the threshold requirements for intervention with the executive’s decision making in prosecutions, saying:

The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court. (p482).

[34] He also referred to the absence of a set of objectively ascertainable standards for intervention and the lack of familiarity of the courts in weighing considerations bearing on prosecutorial responsibility. These “twin problems” required circumspection from the Courts before such intervention. He concluded his discussion of the principles by saying:

While the Court must be the master and have the last word, it is only where to countenance the continuation of the prosecution would be contrary to the recognised purposes of the administration of criminal justice that a Court would ever be justified in intervening.

(See also per Richmond P at pp470-471 and Woodhouse J at p476.)

[35] In Moevao the appellant had been prosecuted for remaining in New Zealand after expiry of his temporary entry permit under the Immigration Act 1964. He had completed an application for permanent residence and had been led to believe, by the assurances of departmental officials, that his application would be granted and he would be able to stay in New Zealand. He was arrested for assaulting a barman and charged by the police with the Immigration Act offence when in custody. This Court refused to stay the prosecution as an abuse of process because there was nothing to indicate those responsible for it were prompted by motives other than the exercise of their duties under the relevant legislation (per Richmond P at p471, Woodhouse J at p477, and Richardson J at p483).
[36] This Court’s judgments in Moevao, and passages from the judgment of Richardson J in particular, have been adopted by the High Court of Australia in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520 (per Mason CJ, Dawson, Toohey and McHugh JJ) and Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 29-30 per Mason CJ. Similarly in England in R v Horseferry Road Magistrates Court ex parte Bennett [1994] 1 AC 42, 74 Lord Lowry approved the observation of Richmond P in Moevao at p470-471 that:

It must be quite clear that the case is truly one of abuse of process and not merely one involving elements of oppression, illegality or abuse of authority in some way which falls short of establishing that the process of the Court is itself being wrongly made use of.

Lord Lowry went on (at p74) to say:

...I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court’s sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.

Finally (at p76) Lord Lowry referred to the need for the court “to protect its own process from being degraded and misused.” (See also to the same effect Lord Bridge, (at p68) citing Woodhouse J at p476 of Moevao and the subsequent decision of the House of Lords in R v Latif [1996] 1 All ER 353, 361 f.g. per Lord Steyn).

[37] These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a court to proceed with the prosecution on its merits would tarnish the court’s own integrity or offend the court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.

Decision: error of law

[38] The appellant’s application for a stay of the relaid charges called for consideration of the particular circumstances said to give rise to an abuse of process. The context is the agreement between the police and a defendant as to the nature of the charges he was to face. The appellant had implemented his side of the agreement, by pleading guilty in open Court to the agreed charges once the Court itself had cleared the way by giving the police leave to withdraw those charges which the police had agreed not to proceed with. Accordingly, as the District Court Judge pointed out in his oral decision, the circumstances do include the involvement of the District Court in giving effect to the charging agreement.
[39] Nevertheless, bearing in mind the constitutional principle of restraint in supervision of prosecutorial decisions, we do not consider the threshold test for abuse of the court’s processes is made out merely because a public prosecuting agency decides to backtrack on an agreement it reached as to the charges a defendant would face. No concept akin to contractual enforcement is applicable to such agreements which are not capable in themselves of having binding force. Their character is rather to be seen as arrangements involving indications of acceptance by a prosecutor that different charges than those initially laid will fairly reflect the criminality of a defendant and the willingness of a defendant to accept responsibility by pleading guilty to those lesser charges. It is of interest that such arrangements themselves are the subject of direction, in section 7 of the present Prosecution Guidelines, on behalf of the Law Officers of the Crown reflecting the governmental policy that there should be some constraints on entering into them. Plainly it is administratively desirable that, once entered into, such arrangements are generally given effect and it is to be expected that will be so. But it does not follow that a decision by a prosecution agency to depart from them by relaying fresh charges, even if they are identical to charges previously withdrawn, will necessarily give rise to an abuse of process. That will depend on all the circumstances. As was recently said by the English Court of Criminal Appeal in R v Townsend, Dearsley and Bretscher [1997] 2 Cr. App. R 540, 541, having referred to the House of Lord’s decision in ex parte Bennett (supra):

...breach of a promise not to prosecute does not necessarily and, ipso facto, give rise to abuse but may do so if circumstances have changed.

The decision in R v Bloomfield (supra) cited by Mr Brosnahan, preceded the development of the principles in Moevao and Bennett and for that reason can be distinguished.

[40] We accordingly do not agree with the view apparently taken by the District Court Judge, and perhaps also implicit in Mr Grieve’s submissions, that the fact that the Police have backtracked on an arrangement of itself would bring the administration of justice into disrepute, to the extent that the Moevao test will be met.
[41] Clearly a circumstance which could result in continuation of a prosecution being an abuse of process is if the change of course by the Police created prejudicial consequences for the person charged. The facts of Delellis v R [1989] NZHC 711; (1989) 4 CRNZ 601 illustrate that situation. In the course of being interviewed by the police the accused agreed to give information about the whereabouts of cocaine, provided the police agreed to stop searching his mother’s house, and not to lay against him a charge of importing the cocaine. Having recovered the cocaine, the police charged the accused with its possession for supply. The justification given for that decision was that the accused had not been completely honest with them about how the cocaine came into New Zealand. Sinclair J applied the Moevao principle, focussing on whether continuation of the prosecution would be inconsistent with the recognised purposes of the administration of criminal justice and so an abuse of the Court’s process (p603). He pointed out that a consequence of the bargain between the police and the accused was that it gave the police information that enabled them to recover a substantial quantity of cocaine preventing it from reaching drug users in Auckland. It was not in Sinclair J’s view inappropriate to make an arrangement to achieve that purpose, but it was oppressive, and in terms of the Moevao test an abuse of process, to depart from the unconditional agreement they had reached.
[42] We would not necessarily disagree with that decision. While it might be said the accused could still have a fair trial he had acted to his detriment by providing the police with the very evidence that was necessary to try him, in return for an agreement he would not be charged. We think it was open to Sinclair J to hold that to allow that to happen would have tarnished the Court’s integrity. We do not accept, however, as we have made plain, the proposition that departing from the arrangement itself always involves the kind of prejudice that amounts to abuse of process.
[43] A feature of the circumstances regarded as important by the District Court Judge in the present case was that the leave of the Court under s36 of the Summary Proceedings Act had been sought by the police, and given by the Court, to withdraw two charges. The power of the Court to permit an informant to withdraw an information is of course a discretionary power which we accept is exercised as part of the judicial function and in accordance with judicial principles. We agree however with Smellie J that, in general, a police application prior to trial to withdraw a charge need occasion little inquiry. It is unnecessary in this case to discuss the position where application is made at a later stage which was the situation addressed in Morgan v Ministry of Transport (supra). We also agree with Smellie J that because under s63(3) of the Act withdrawal of an information is “not to operate as a bar to any other proceedings in the same matter” to lay the same information afresh after earlier withdrawal, is a procedure that is generally permitted by the Act.
[44] In those circumstances we do not see that the involvement of the Court, as was necessary to give effect to the arrangement, has any bearing of itself on whether the court’s powers were abused in relaying the withdrawn charges. It is the reasons why the police acted as they did, and the effect their actions have had on the appellant’s position, that must be evaluated in order to decide if it would be an abuse of the process of the Court to continue the prosecution.
[45] The police change of mind was the result of considering legal advice they received that the charges to which the appellant had pleaded guilty did not adequately reflect the overall criminality of the appellant’s offending. To remedy that would require the withdrawn firearms charges to be relaid.
[46] The source of that advice was the Crown Solicitor at New Plymouth. A Crown Solicitor has statutory responsibilities in relation to indictable prosecutions following committal of an accused for trial in the District Court or the High Court (see s345 of the Crimes Act 1961). In this case the appellant had pleaded guilty prior to depositions and as already indicated, in those circumstances, the local Crown Solicitor is instructed by the police to appear as counsel to represent them at the sentencing. Because the Crown Solicitor took the view that the charges to which the appellant had pleaded were inadequate he advised the police, on his own initiative, accordingly. The police responded by deciding to lay the fresh charges.
[47] In so advising the police, the Crown Solicitor was not acting in exercise of the statutory powers of his office. Nor, in our view, was he acting in any way as the agent or delegate of the Law Officers in relation to their various statutory and prerogative powers in the prosecution process. Mr Brewer was simply acting as legal adviser to the police, but in circumstances where the reason he was instructed was the official position he held in the prosecution system in the region coupled with the governmental practice that the holder of that position should be instructed to appear at the sentencing of persons convicted after pleading guilty to charges laid indictably prior to the stage of committal for trial. This factor is of course highly relevant in evaluating the motives of the police in deciding to lay the fresh charges.
[48] As Mr Brosnahan accepted, there is no question here of bad faith or of improper motive on the part of the police. The change of mind was the result of receiving a different view of what their public responsibilities in the prosecution process required. The circumstances in which they came to be so advised and elected to take that advice reflected a proper, indeed sound, governmental practice.
[49] We turn accordingly to the prejudicial impact on the appellant of the change of mind by the police. He had of course pleaded guilty to the substantially less serious charge of wounding with intent to injure, which was substituted for that of wounding with intent to cause grievous bodily harm. The police change of mind did not alter that element of the agreement. It could not do so. It was recognised by all involved that the conviction that had been entered on the lesser charge precluded relaying the original s188(1) charge because of the principle of autrefois convict. The prejudice was rather said to arise from the reinstatement of the two Arms Act charges.
[50] That kind of prejudice is not the sort that will amount an abuse of the court’s process in terms of the Moevao test. The situation in Police v Delellis (supra) where concealed drugs were located as a result of the agreement can immediately be distinguished. The appellant has not acted to his detriment on the basis of the agreement on charging irretrievably or at all. He actually retains the principal benefit of it in the form of his immunity from facing a charge under s188(1) in respect of his wounding of the victim. In any event if he was discontented by the additional charges he was able, before sentencing, to seek to vacate his pleas and effectively return to his original situation. We do not accept that his public admission of guilt would have presented a problem that precluded the appellant from receiving a fair trial on the charges he would then have faced. Any problem of publicity about the guilty plea, if not cured by elapse of time, could have been addressed by a change of venue. The trial Judge would not have permitted evidence to be called at the trial concerning the earlier guilty plea and conviction. The appellant could be said to be in a less satisfactory position than the one his counsel originally negotiated with the police but, as we have said, that kind of detriment is not the sort of prejudice which gives rise in itself to an abuse of court processes.
[51] For these reasons we agree with the High Court Judge that the District Court was in error when it determined that the newly laid charges should be stayed as an abuse of the processes of the Court.

Decision: relief refused

[52] We now turn to the question of relief. Smellie J decided that the fresh charge of reckless discharge of a firearm (in relation to the second discharge of the firearm) should go to trial but not the charge of unlawful carrying of a pistol. No challenge is brought by the Attorney-General against the latter determination. In the course of the hearing in this Court, however, it was revealed that at the sentencing of the appellant, counsel who appeared for the police had made submissions which emphasised that the second incident was an aggravating aspect of the appellant’s conduct. This factor was not made known to Smellie J. It seems probable, however, that it was reflected in the term of imprisonment imposed by the District Court Judge. It would plainly be unjust for the appellant in those circumstances to face a trial on the remaining charge.
[53] For that reason alone we allow the appeal and set aside the relief granted to the Crown by the High Court. Given the partial success achieved by each party in the appeal there will be no order for costs either in this Court or in the High Court.

Solicitors
D M Goodlet, Wanganui, for Appellant
Crown Law Office, Wellington, for First Respondent