Chandler v Marshall [2020] NZDC 3553 (3 March 2020)

Last Updated: 30 December 2024

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2020-009-001843 [2020] NZDC 3553

LUKE CHANDLER Prosecutor

v

PATRICK MARSHALL Defendant

Judgment:

3 March 2020

RESERVED JUDGMENT OF JUDGE S J O’DRISCOLL

Application for Private Prosecution

Background

[1] On 4 February 2020, the proposed prosecutor Mr Chandler submitted a charging document against Mr Marshall in the District Court at Christchurch, together with a written statement in support. Mr Chandler wishes to bring a private prosecution against Mr Marshall.

[2] The charging document alleges that on 5 December 2019, Mr Marshall committed a burglary by being in an enclosed yard with the intent to commit an imprisonable offence, namely theft.

[3] Mr Chandler seeks to have the Court accept the charging document for filing under s 26 of the Criminal Procedure Act 2011 (“the CPA”).

LUKE CHANDLER v PATRICK MARSHALL [2020] NZDC 3553 [3 March 2020]

The Charge

[4] Mr Chandler has CCTV cameras set up in various spots around his property. The cameras have built in motion sensors that can send an alert and live feed video footage to a mobile device.

[5] On 5 December 2019 at 2.46 pm, Mr Chandler received an alert that motion had been detected in his driveway and at his front door. The CCTV cameras captured video footage of a man approaching the sliding door of Mr Chandler’s property and attempting to open the door.

[6] Mr Chandler was home and yelled out to the man, telling him to vacate the property. The man replied that he was lost and had the wrong house. Mr Chandler then called 111 and activated a built-in siren on one of the CCTV cameras. The man then ran from the property.

[7] Mr Chandler provided police with footage captured from the CCTV cameras. He also arranged for screen shots of the video footage to be posted online so that the person could be identified. The following day, Mr Marshall was arrested by police in relation to this incident.

[8] Mr Chandler states that the incident has caused him serious emotional distress. He feels anxious, upset, stressed and has had nightmares and has been made to fear for his life.

[9] The police have charged Mr Marshall with one charge of unlawfully being in an enclosed yard contrary to s 29 of the Summary Offences Act 1981. Constable Ali has filed a statement stating that a charge of burglary was considered but was not proceeded with because:

• (a) The intention of the defendant to commit an imprisonable offence in the building/enclosed yard could not be proven;
  
• (b) There was no evidence that the defendant attempted to enter the dwelling; and

• (c) A charge pursuant to s 29 of the Summary Offences Act 1981 was deemed more appropriate.
  

[10] However, Mr Chandler believes that there is sufficient evidence to support a burglary charge and therefore proposes to bring the present private prosecution.

Private prosecutions

[11] Section 15 of the Criminal Procedure Act states that, “any person may commence a proceeding”. As was said in Gouriel v Union of Postal Workers, the right of private individuals to instigate private prosecutions is a “valuable constitutional safeguard against inertia or partiality on the part of authority”.1 However, where private individuals seek to commence a criminal prosecution there must be safeguards to ensure that the criminal law is not being used by the individual for some ulterior motive.2

[12] These safeguards are given statutory effect through s 26 CPA, which provides:

26 Private prosecutions

(1) If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may –

• (a) accept the charging document for filing; or
  
• (b) refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
  

(2) The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3) A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that –

• (a) the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
  
• (b) the proposed prosecution is otherwise an abuse of process.
  

1 Gouriel v The Union of Postal Workers [1978] AC 437-447, per Lord Wilberforce.

2 Colman v Calvert, Whangarei DC CRI-2008-088-005099, 25 March 2009, at [16].

(4) If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must –

• (a) notify the proposed private prosecutor that the charging document will not be accepted for filing; and
  
• (b) retain a copy of the proposed charging document.
  

(5) Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

[13] Section 26(3) therefore sets out the two grounds on which a Judge may direct that a charging document for a proposed private prosecution not be filed. These are:

• (a) where the evidence that the prosecutor relies is insufficient to justify a trial; or
  
• (b) that the prosecution is otherwise an abuse of process.
  

Discussion

[14] In Vector Ltd v H Construction North Island Ltd (in rec and liq), the Court of Appeal held that, when considering if there is sufficient evidence to justify a trial in terms of s 26(3)(a), a District Court Judge should ask the following questions:3

• (a) whether the proposed charge is in respect of an offence recognised by New Zealand law;
  
• (b) whether the essential ingredients of the proposed charge are prima facie supported by the formal statements and exhibits filed by the proposed prosecutor. The evidence must be sufficiently cogent and creditable to put a proposed defendant on trial, but an assessment of the credibility of the evidence should not be undertaken;
  
• (c) whether the court has jurisdiction to hear the charge;
  

3 Vector Ltd v H Construction North Island Ltd (in rec and liq) [2019] NZCA 215, [2019] NZAR 1127, at [72].

(d) whether the proposed prosecutor has the necessary authority to prosecute, which is likely to be an issue for those prosecutions that may only be commenced with the consent of the Attorney-General or the Solicitor-General

[15] I do not consider that the essential ingredients of the proposed charge are prima facie supported by the evidence filed by Mr Chandler. This is because there is no cogent evidence to suggest that Mr Marshall intended to commit an imprisonable offence when he entered the property. It is highly unlikely any Court would be satisfied beyond reasonable doubt that a burglary has been committed.

[16] I agree with the police analysis that, on the evidence before me, a charge under s 29 of the Summary Offences Act 1981 is more appropriate in the circumstances. I am therefore of the view that there is insufficient evidence to justify a trial on a charge of burglary.

Conclusion

[17] Pursuant to s 26(3)(a) CPA, I direct that the charging document must not be accepted for filing.

SJ O’Driscoll District Court Judge