Colman v Attorney-General [2013] NZCA 92 (27 March 2013)

Last Updated: 3 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA598/2012 [2013] NZCA 92

BETWEEN JOHN COLMAN Applicant

AND THE ATTORNEY-GENERAL Respondent

Hearing: 18 March 2013 (by Teleconference)

Court: Randerson, Harrison and White JJ

Counsel: Applicant in Person C Griffin for Respondent

Judgment: 27 March 2013 at 4:00pm

JUDGMENT OF THE COURT

A The application for leave to appeal is dismissed.

2. The respondent is entitled to costs against the appellant for a standard application on a Band A basis with usual disbursements.
   

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REASONS

(Given by Randerson J)

Introduction

[1] The applicant Mr Colman was arrested in 2007 and charged with two criminal offences. A charge of disorderly behaviour was ultimately dismissed. After an appeal, he was discharged without conviction by Allan J on 22 December 2009 on a charge of using insulting language.[1] In the course of this process, he has had a number of court appearances and a prolonged series of appeals.
[2] Mr Colman later initiated nine sets of civil proceedings in the District Court claiming that his rights under the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached by officers of the New Zealand Police and members of the judiciary through their involvement with his criminal charges.
[3] On 10 October 2011, Judge de Ridder struck out eight of his nine claims.[2] The ninth claim (CIV-2001-088-104) related to an alleged failure by the police to arrange medical attention for Mr Colman. This claim was permitted to proceed but the District Court Judge observed that the notice of claim would require substantial amendment.
[4] Mr Colman then appealed to the High Court against the decision of Judge de Ridder striking out eight of his claims. On 14 June 2012, Lang J dismissed Mr Colman’s appeal save that he reinstated another of Mr Colman’s claims (CIV-2011-088-195). This related to an alleged failure by the police to notify Mr Colman of the second charge he faced.[3]
[5] Mr Colman then sought leave to appeal to this court against Lang J’s decision. His application for leave was declined by Keane J on 30 August 2012.[4]
[6] Mr Colman now seeks leave pursuant to s 67(2) of the Judicature Act 1908 from this Court to appeal against Lang J’s decision. The respondent opposes the application but has not appealed against the decisions in the lower courts permitting Mr Colman to proceed with two of his civil claims. Subject to any necessary amendment of the pleadings, Mr Colman is at liberty to proceed with the substantive hearing of those claims.
[7] The application for leave before us was conducted by teleconference after advice was received from Mr Colman that he could not afford to travel from Whangarei to Wellington for the hearing nor the cost of attendance by private video link. Mr Colman provided extensive written submissions in support of his application and addressed the court orally during the telephone conference.

The principles applicable

[8] The test applicable to an application for a second appeal under s 67(2) of the Judicature Act has been long established. This court said in Waller v Hider:[5]

The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal...

It is not every alleged error of law that is of such importance, either generally or to the parties, as to justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.[6]

Mr Colman’s grounds in support of his application

[9] Mr Colman raised a number of issues. Doing the best we can, they may be summarised as:

• (a) Judge de Ridder has struck out his civil proceedings because they were a collateral attack on the outcome of the criminal proceedings. Mr Colman argued that the doctrine of collateral attack could apply only to subsisting prior final decisions of a court. He contended there were no longer any such decisions.
• (b) Lang J had determined that the civil claim had no reasonable prospect of success. Mr Colman alleged this was a new ground which he did not have the opportunity to address.
• (c) Mr Colman contended that he had a right to bring claims under the NZBORA and the courts did not have power to prevent him from doing so.
• (d) In relation to one of his claims (CIV-2011-088-211) his plea of autrefois acquit under s 358(1) of the Crimes Act 1961 was wrongly rejected at a re-hearing in breach of his right not to be subjected to double jeopardy under s 26 NZBORA. He contended he ought to be able to proceed with that claim.
• (e) If he were granted leave, there were questions of law or fact which were of importance to him and to the public generally which this Court ought to hear.

Grounds (a) and (b) - collateral attack/no reasonable prospects of success

[10] It is convenient to deal with these two grounds together. The Attorney-General’s application to strike out was made under r 2.50.1 of the District Court Rules 2009. It relied on two grounds. First, that Mr Colman’s proceedings were an abuse of the court process as a collateral attack upon determinations of both the District Court and the High Court. Secondly, the Attorney-General relied on the ground that Mr Colman’s pleadings did not disclose any reasonably arguable cause of action.
[11] Judge de Ridder’s decision of 10 October 2011, striking out all but one of Mr Colman’s claims, was based on the collateral attack ground. The Judge relied particularly on determinations made by Allan J in the appeal determined on 22 December 2009. Judge de Ridder’s finding of abuse through collateral attack was made on a global basis not specifically directed to each of the individual proceedings.
[12] When Lang J heard Mr Colman’s appeal, he dealt individually with each of Mr Colman’s claims, determining them partly on the basis of abuse of process through collateral attack and partly on the grounds that they did not disclose any reasonable cause of action. Mr Colman cannot have been surprised by this approach since it was clearly raised in the Attorney-General’s strike-out application and it is clear from his submissions that he addressed Lang J on the facts and merits of each of his civil claims.
[13] Lang J set out his reasons for dismissing Mr Colman’s appeal against Judge de Ridder’s decision (save in the one respect we have already identified). In brief summary:

CIV-2011-088-194

[14] This claim arises from events leading to an adjournment of the disorderly behaviour charge on 18 March 2008. Mr Colman alleged breaches of his fair trial rights under s 25(a) of NZBORA and the breach of his right to be tried without undue delay under s 25(b) of NZBORA. Lang J ruled that the focus of s 25(a) was on the hearing rather than on the conduct of the parties leading up to it. For that reason, the alleged breach could not amount to a breach of s 25(a). In relation to the alleged breach of s 25(b), Lang J found that the claim amounted to a collateral attack on the finding by Allan J in the criminal appeal that Mr Colman’s rights had not been breached under that provision.

CIV-2011-088-195

[15] This claim arises from a failure by the police to serve a summons on Mr Colman in relation to the second charge of using insulting language. Mr Colman alleged a breach of his rights under ss 24, 25 and 26 of NZBORA. Lang J found there could be no breach of s 25 since it related to conduct preceding the determination of the charge. There could be no breach of s 26 (relating to retroactive penalties and double jeopardy) since Mr Colman had not been finally convicted or acquitted of any offence prior to the hearing on 16 June 2008. There was no tenable cause of action under either of those headings.
[16] However, there was an arguable case that his right to be informed promptly and in detail of the nature and cause of the charge and the right to adequate time and facilities to prepare a defence under s 24(a) and (b) of NZBORA had been breached. That part of the claim could therefore proceed.

CIV-2011-088-203

[17] The basis for this claim is that a District Court Judge convicted Mr Colman on a charge of using insulting language before Mr Colman was aware of the existence of the charge. The Judge accepted that Mr Colman was correct in contending that his fair trial rights under s 25(a) of NZBORA had been breached since he could not have a fair trial when he was unaware of the charge in respect of which the trial was being held. However, any breach in that respect was completely remedied when the District Court Judge set the conviction aside and there was a subsequent rehearing. Lang J considered that no useful purpose could be served by a further judgment of the District Court confirming that the entry of the original conviction amounted to a breach of Mr Colman’s rights under s 25(a) and that, in any event, no claim for monetary compensation would be payable since the entry of the conviction was a judicial act.[7] Lang J considered it would be a misuse of the court’s procedure to allow this claim to proceed.

CIV-2011-088-211

[18] We deal with this matter separately below.

CIV-2011-088-217

[19] This claim relates to a ruling by Judge Tompkins on 23 April 2009 that, in relation to the insulting language charge, the defences of self-defence and defence of property under ss 48 and 56 of the Crimes Act 1961 were not available to Mr Colman. Judge Tompkins’ ruling in that respect was upheld by Allan J on appeal. Lang J found that this issue had already been determined. The civil proceeding amounted to a collateral attack on those rulings and an abuse of process.

CIV-2011-088-234

[20] Mr Colman contended that neither Judge Tompkins nor Allan J dealt with his submission that he was entitled to rely on s 42 of the Crimes Act 1961. Lang J found on the facts that Mr Colman had not raised this issue before Judge Tompkins or Allan J. He could not therefore claim that he had not received a fair trial.

CIV-2011-088-240

[21] Mr Colman contended that the police deliberately kept secret from him the existence of a police officer who had the capacity to give valuable evidence in this defence. He claimed that the police breached his right under s 24(b) of NZBORA to have adequate facilities to prepare his defence. Lang J determined there was no tenable basis for this claim. The evidence of the witness was irrelevant to his defence of the criminal charge at issue.

CIV-2011-088-264

[22] Mr Colman contended that Allan J had no jurisdiction to quash his conviction and then discharge him without conviction. He argued that the Judge ought to have quashed his conviction and made no further order. Lang J found there was no basis in law for this contention. Allan J had found that the District Court Judge was entitled to find the relevant charge had been proved beyond reasonable doubt and then to exercise the power under s 106(1) of the Sentencing Act 2002 to discharge Mr Colman without conviction. The cause of action based on the absence of jurisdiction was untenable.

Conclusions on the first two grounds

[23] We are satisfied that Mr Colman has no reasonable prospect of success in pursuing any of the identified claims. Lang J has carefully considered each of the relevant proceedings and we see no tenable basis for challenging his conclusions. He has carefully differentiated between dismissal on the grounds of abuse of process arising through collateral attack, identifying the decisions or rulings relevant for that purpose. Mr Colman’s submission that there are no subsisting court decisions under attack by his civil proceedings has no substance.

Ground (c) – the right to bring claims under NZBORA

[24] Mr Colman asserted that, since he had guaranteed rights under NZBORA the courts have no right to prevent him from bringing civil proceedings to vindicate his rights. We accept Ms Griffin’s submission on behalf of the Crown that this contention is misconceived. Proceedings brought under NZBORA are subject to strike-out in the same way as any other civil proceedings. Where one or more of the grounds for striking-out a civil proceeding are established, there is no impediment to a strike-out order.

Ground (d) – double jeopardy

[25] Mr Colman’s proceeding CIV-2011-088-211 focuses on the validity of an order made in the District Court on 20 October 2008 granting him a rehearing on the insulting language charge. Mr Colman relies on Allan J’s finding in the criminal appeal that Mr Colman’s original trial on that charge was effectively a nullity. Mr Colman contends that if the original hearing was a nullity, the District Court Judge had no jurisdiction to order a rehearing.
[26] Lang J found that there was no tenable cause of action in this proceeding. He accepted that Mr Colman’s argument might be technically correct. However, he found the fact that the original trial was a nullity did not mean that the charge of using insulting language was also a nullity. It remained in existence and needed to be determined.
[27] Lang J added that it might not have been necessary for an order to be made granting a rehearing. Rather, any judge of the District Court could have directed that Mr Colman be given time to prepare his defence on the new charge and that it be heard at a later date.
[28] Under this heading, Mr Colman also contended that his plea of autrefois acquit under s 358(1) of the Crimes Act was wrongly rejected when the insulting language charge was reheard. He contended that this breached his right not to be subjected to double jeopardy under s 26 NZBORA.
[29] This issue has been determined against Mr Colman by Allan J in his decision on the criminal appeal. Allan J found[8] that the word “finally” in s 26(2) of NZBORA simply reflected the settled principle that a formal proceeding must be finally determined before a previous acquittal or conviction may be advanced by way of a special plea on a subsequent occasion. The setting aside of the original conviction could not possibly be described as an acquittal, let alone a final acquittal.
[30] We are satisfied that there is no arguable basis for a final appeal based on this ground.

Ground (e) – important questions of law or fact

[31] While we accept that Mr Colman considers the issues he wishes to raise are important to him, we are not persuaded that the issues are of any general or public importance such as to warrant a further appeal.

Result

[32] The application for leave to appeal is dismissed.
[33] The respondent is entitled to costs as for a standard application on a Band A basis with usual disbursements.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Colman v Police HC Whangarei, CRI-2009-488-09, 22 December 2009.

[2] Colman v Attorney-General DC Whangarei CIV 2011-88-104, 194, 195, 203, 211, 217, 234, 240 and 264, 10 October 2011.

[3] Colman v Attorney-General [2012] NZHC 1343, 14 June 2012.

[4] Colman v Attorney-General [2012] NZHC 2208, 30 August 2012.

[5] Waller v Hider [1998] 1 NZLR 412 (CA) at 413.

[6] See also, Snee v Snee (1999) 3 PRNZ 609 (CA).

[7] Citing Attorney-General v Chapman [2011] NZSC 110.

[8] At [74].