H v Auckland District Court HC Auckland CIV-2009-404-001197 [2009] NZHC 2626; [2010] 1 NZLR 426 (30 June 2009)

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2009-404-001197}

BETWEEN S J H Plaintiff

AND THE AUCKLAND DISTRICT COURT First Defendant

AND THE ATTORNEY GENERAL Second Defendant

Hearing: 4 May 2009

Appearances: R Lawn and CA Blucher for Plaintiff

SE McKenzie for Defendants

Judgment: 30 June 2009

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on 30 June 2009 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules

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Registrar/Deputy Registrar

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Date

Solicitors:

Kumeu-Huapai Law Centre, PO Box 122, Kumeu

Crown Law, PO Box 2858, Wellington 6140

H V THE AUCKLAND DISTRICT COURT HC AK CIV-2009-404-001197 [30 June 2009]

[1] S J H is to stand trial in the District Court at Auckland on

various counts of indecent assault alleged to have been committed against DAH, a girl aged between 12 and 16 years.

[2] On 15 December 2008 Mr H’s application under s 347 of the Crimes

Act 1961 was declined in the District Court. He has responded to this ruling by two applications to this Court. The first is an application for judicial review of the District Court decision. The second is an application to transfer the District Court proceedings to the High Court under s 28J of the District Courts Act 1947, and for an order that he not be arraigned and that he be discharged on the indictment, and for an order staying the proceedings.

Background

[3] The complainant is the daughter of the accused’s former wife. Between 1981 and 1986 she was living with her mother and Mr H. During that period

Mr H allegedly indecently assaulted the complainant.

[4] Mr H states in affidavits he filed in the District Court that he received a

call on 6 March 2001 from the natural father of the complainant. He says that the father, whose voice he recognised, accused him of molesting his daughter, the complainant, and said “You will pay $50,000 or we go to the police, and if we go to the police you will still pay $50,000”. Mr H says he recorded the substance of

the telephone call in his diary at the time. That diary note was lost when that and other items were stolen from him, but a copy of it was kept by his lawyer and attached to his affidavit. This is corroborated to the extent that it seems that Mr H instructed his lawyer to write to the father complaining of his actions, which the lawyer did on 16 March 2001. A copy of the letter was also exhibited. There was no response.

[5] The complainant did not make a formal complaint to the police alleging abuse until 1 February 2005. In her statement to the police she traverses the reasons

she puts forward for taking time to make the complaint in relation to the alleged abuse, which she says occurred when she was a teenager.

[6] In October 2007 Mr H was first contacted by the police concerning the allegations of the complainant. On 5 October 2007 his counsel advised the police, in writing, of the alleged blackmail, and on 1 February 2008 Mr H lodged a complaint with the New Zealand police about this. The police asked him to file a formal complaint, which he proceeded to do. The material was then investigated, and the accusation of the threat was put to the complainant’s father. The complainant’s father made a statement 28 March 2008 in which he denied having had any such telephone communication with Mr H, or receiving any communication from his lawyer.

[7] On 9 October 2008 Mr H’s counsel filed an application in the Auckland District Court for a stay of proceedings under s 347(1) of the Crimes Act 1961. The s 347 application was set down for hearing on 15 December 2008. At that hearing Mr H’s counsel sought to call evidence supporting a claim for both specific and general prejudice arising from delay, as well as make submissions that the complainant was, by making her complaint, acting with an improper motive, and that the police had failed to properly investigate the allegation of blackmail. Mr H’s counsel wished to call Mr H and his present wife, and he also asked that there be

viva voce evidence from the complainant and her father so that they could be cross- examined, together with the police officer who had investigated the blackmail complaint.

[8] The District Court Judge declined counsel’s request. He referred to this in his ruling, stating at [22]-[23]:

[22] ... Nor am I satisfied that the appropriate course should be for me to convene a voir dire and reach some conclusion on the credibility issues that arise for myself. It seems, in my view, to be a matter which ought properly to be put before the trial court.

[23] If in the course of the material that is there traversed it appears to the trial Judge that there is a factual matter which is clearly emerging and which leads to a situation where the case should be withdrawn from the jury, then that is a course that is open to the Judge to adopt. I do not think it is

something that I ought to deal with in a pre-trial hearing where the matters of fact are unresolved and likely to remain incapable of any clear resolution.

[9] The first respondent took no steps and will abide the decision of the Court.

The issues that arise

[10] The statement of claim filed in support of the application for judicial review asserts that in terms of s 347(1)(c) it was mandatory for the Judge to allow the accused to present evidence at the s 347 hearing, and to cross-examine relevant police witnesses. It is asserted that in refusing the application, there was a denial of natural justice in breach of s 27(1) of the New Zealand Bill of Rights Act 1990 (“the NZBOR”). It is stated that Mr H was denied a fair hearing and a fair determination of his rights and obligations.

[11] The application under s 28J of the District Courts Act 1947 seeks an order transferring the application that Mr H not be arraigned into the High Court, and

for an order under s 347(1) in this Court that he not be arraigned and that he be discharged, and the proceedings against him stayed as an abuse of process.

Discussion

[12] Section 347(1) of the Crimes Act 1961 provides:

347 Power to discharge accused

(1) Where any person is committed for trial, the Judge may, in his discretion,—

(a) Of his own motion or on the application of the prosecutor or the accused; and

(b) After giving both the prosecutor and the accused reasonable opportunity to be heard on the matter; and

(c) After perusal of the depositions and consideration of such other evidence and other matters as are submitted for his consideration by the prosecutor or the accused—

[emphasis added]

direct that no indictment shall be [[filed]], or, if an indictment has been [[filed]], direct that the accused shall not be arraigned thereon; and in either case direct that the accused be discharged.]

[13] In rare cases where, by reason of the nature of the jurisdictional error in the District Court the intervention of the High Court is imperative, s 347 decisions and stay decisions are judicially reviewable: Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 133-136. If there was indeed a material breach of the NZBOR by the Judge in refusing to entertain the viva voce evidence, then that might well be an error of law, and a proper basis for review. The Crown did not contest such a proposition.

[14] Mr Lawn for Mr H in support of the application, relied in particular on

s 347(1)(c) and the reference to “after ... consideration of such other evidence and other matters that are submitted for his consideration by the prosecutor or the accused”. Mr Lawn submitted that these words mean that a judge is obliged to hear such evidence as an applicant wishes to put to the court, and that this includes the accused’s right to call witnesses and cross-examine Crown witnesses.

[15] Section 347(1)(c) has been considered in a number of New Zealand decisions. In R v Riley [1982] 1 NZLR 1, the issue was whether the phrase “such other evidence and other matters” was wide enough to include proofs of evidence not given at the preliminary hearing, but of which notice had been given to the accused. The Court of Appeal considered the report of the Criminal Law Reform Committee, which had led to the amendment. It was noted at 5 that s 347(1) had been enacted in its present form by s 19(1) of the Summary Proceedings Amendment Act 1976. Prior to that Act the Judge’s discretion under s 347 to direct that no indictment should be presented or that the accused not be arraigned on any indictment already presented, was exercised after the perusal “of the depositions”. This had been interpreted as allowing a Judge to consider only the depositions: see R v McArthur [1975] 1 NZLR 486. It was stated in R v Riley:

The amendment enlarged the scope of the material available for the consideration of the Judge in the exercise of his discretion by including not only the depositions but “other evidence and other matters” submitted for his consideration by the prosecutor or the accused.

[16] The Court of Appeal indicated that there would not be cross-examination of Crown witnesses at s 347 hearings. It stated, in relation to the presentation of an unsworn Crown brief of a Mrs Baker, at 7:

It is true that there may have been disadvantages to the defence in the course adopted; there was no opportunity to cross-examine Mrs Baker on the evidence in advance of the trial; and there was a departure from this being envisaged by the Summary Proceedings Act 1957 for the taking of depositions. We note that s 178 of that Act did not apply in the circumstances. The applicant was not left all together without remedy. If, at the trial, Mrs Baker’s evidence did not measure up to the further brief a further application under s 347 could have been made. It is to be noted, however, that Mr Muir was able to cross-examine Mrs Baker at the trial, as he did with vigour, as to why she had not recognised the accused earlier.

[emphasis added]

[17] In R v Bolstad HC ROT T42/91 16 August 1991, Jamieson J refused to accept the statement of evidence put forward on behalf of the accused during a s 347 hearing. He stated at p 3:

The reception of such a statement, which is, of course, at this stage, totally untested, purporting to discredit the Crown evidence, can do little, in my view, to detract from the sufficiency of the evidence as already disclosed on the depositions. It is not the proper function of the Court on an application of this sort to decide the weight of the evidence. To permit defence evidence to be introduced at this stage would be, in effect, to try the case before trial. Clearly that is not what is contemplated, nor what should be permitted.

[18] The learned Judge held that the reference to matters being submitted for consideration by the accused in s 347(1)(c) was intended by Parliament so that the Court should “consider other evidence that may be presented by the prosecutor and other matters that may be submitted by either, and that accordingly the paragraph ought to be read disjunctively”.

[19] In R v Slater (1994) 12 CRNZ 198, Barker J followed R v Bolstad and refused to allow evidence to be called in a s 347 application (at 201):

A s 347 application is not meant to be a “mini” trial or an opportunity for counsel to have a “preliminary run” at calling evidence.

In the present case, counsel for the accused has recognised that the challenge made to the Crown case based on the activities of the undercover agent is one that could and should be run at the trial. It will be for the trial Judge to decide whether the evidence of the relationship between the undercover

agent and the accused is such as to make it desirable in the interests of justice for the trial to proceed.

[20] In Long v R [1995] 2 NZLR 691, Hammond J took the view that s 347(1)(c)

does not exclude defence applications. However, he went on to say at 697:

That said, the defence is not entitled to conduct a mini-trial. For that transcends the purpose of the trial itself; and the Court must leave what are properly jury matters to the jury. When the defence seeks to invoke the statutory provision the Court will examine its purpose in so doing. Credibility issues are for trial. The defence will usually be faced with the very difficult burden of showing that, on all the evidence adduced, no jury properly directed could have convicted.

In that case Hammond J accepted “not without some hesitation” briefs of defence expert witnesses and further evidence in respect from Crown experts. The issue of cross-examination did not arise, as neither counsel sought to cross-examine (at 698).

[21] The cases referred to, in particular R v Riley, indicate that s 347 hearings are not to be mini-trials involving the leading of evidence and cross-examination prior to trial. The Court will not decide the weight of evidence.

[22] The words of s 347(1)(c) do not in themselves demand a full hearing. All that is stated is that the Court has a discretion to consider evidence and other material submitted by the prosecutor or the accused. The words “submitted for his consideration” in themselves indicate the handing up of written material, rather than the giving of oral evidence and cross-examination. While the natural meaning of the words in s 347(1)(c) is that either the prosecutor or the accused may submit evidence at a s 347 hearing, defence evidence that is in dispute will seldom be of significant value as credibility issues will not be determined in such an application.

[23] It is true that the argument here does not relate to the strength of the Crown case, but rather an abuse of process separate from the alleged offending. But only undisputed evidence of such an abuse of process could be considered at a s 347 hearing. Contested evidence is for trial. If in the course of the trial a specific abuse of procedure is shown, or there appears to be a weakness in the Crown case so that no reasonable jury properly directed could convict, then a Court can entertain a s 347

application during the trial itself. What Courts have not done, is to allow an evidence contest to develop during a s 347 hearing.

[24] However, this is what counsel sought to do before the District Court. He wished to show that there had been an abuse of procedure by the Court, and to show that in fact the complainant’s father had made the telephone call and that the police had improperly failed to follow that up when the matter was brought to their attention. There were sworn affidavits before the District Court attesting to the alleged blackmail, but there was also a sworn affidavit from the Detective Constable assigned to the case advising that the complainant and the complainant’s father denied any involvement in any phone call or attempt at extortion. The facts are contested and the contest is for the trial.

[25] The Judge was quite right to refuse to allow cross-examination in such circumstances. To do so would have been to create a mini-trial. There would have had to have been credibility findings. Such exercises are beyond the ambit of s 347 hearings.

[26] Mr Lawn referred to the fact that the right to cross-examine on committal has now been removed, which he submitted made it important to allow cross- examination in a s 347 hearing. However, the removal of the right to cross-examine at committal might be seen as indicating, to the contrary, that the right to cross- examine prior to trial is not a necessity, and that it is cross-examination at trial which is all important.

[27] Mr Lawn referred to s 92(1) of the Evidence Act 2006 and the obligation to put matters in cross-examination clearly to an opposing party’s witness, indicating a right to cross-examination at a s 347 hearing. Section 92(1) reads:

92 Cross-examination duties

(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

However, as observed in R v S [2009] NZCA 210 at [22]- [23], s 92(1)

requires counsel to cross-examine a witness on significant matters that are relevant and in issue and which contradict the evidence of that witness. It is an articulation of the rule in Browne v Dunn (1893) 6 R 67 (HL), which requires counsel to put their client’s case to the witnesses called by an opposing party. Its purpose is to give an opportunity to the opposing witness to respond to evidence that is to be called later. It is there to protect the interests of the party that has called the witness, not the interests of the party who is cross-examining the witness, or a party who might wish to have a witness called. This is indicated by the remedies in s 92(2). These include an order for the recall of a witness, or the exclusion of the later contradictory evidence. The section cannot be interpreted as giving a right to a party to a s 347 hearing to have witnesses who have signed briefs called for cross-examination.

Section 25(f)

[28] Section 25(f) of the NZBOR provides:

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:

The right to examine witnesses for the prosecution is stated to be “in relation to the determination of the charge”. That is not to be interpreted as meaning the determination of any pre-trial application, whether it be for a discharge or stay or any other remedy. Such hearings, including s 347 hearings, will only determine the charge if the application is successful. If the application is unsuccessful it does not determine the charge or the rights of the person charged. The section is not to be read, therefore, as applying to such pre-trial applications. Rather, in referring to the “determination of the charge” the section is referring to the trial itself, where at the conclusion of the trial the accused must be either convicted or discharged. Other sub-sections of s 25 indicate that it is the trial itself, rather than any pre-trial hearing,

that is in contemplation. Section 25(e) refers to the right to be present at “the trial”. Section 25(g) and (h) refers to rights “if convicted of an offence”. It is at trial that s 25(f) applies.

[29] Mr Lawn submitted that in the light of s 25(f), R v Riley is no longer the law. However, s 25(f) cannot be regarded as casting doubt on the applicability of R v Riley. For the reasons already given, s 25(f) is concerned with the right of the defendant to cross-examine witnesses at trial. R v Riley was concerned only with cross-examination at a s 347 hearing, prior to the trial.

[30] The District Court Judge indicated in his decision that the Detective involved should be called by the police. The complainant and her father are to be called. The defence will be able to call witnesses, including any witnesses relevant to the blackmail allegation. The right to examine witnesses under s 25(f) will then be able to be exercised. If after hearing all this evidence and before the charges are determined, Mr H wishes to renew his s 347 application, he will be able to do so. There is no breach of s 25(f) in denying cross-examination in a s 347 hearing.

Conclusion

[31] The Judge made no error of law in refusing Mr H the right to call evidence and cross-examine. This determines the application for review. There was some discussion in the submissions of the merits of the Judge’s s 347 decision. However, the statement of claim did not directly put the merits of the decision at issue, and, even if it had, it would be inappropriate to consider the merits of a s 347 determination in a judicial review hearing. This would not be a matter properly within the purview of judicial review: Chief Constable for North Wales v Evans [1982] UKHL 10; [1982] 1 WLR 1155 (HL) at 1174.

Result

[32] The application for judicial review is dismissed.

[33] Mr Lawn confirmed that if the judicial review application did not succeed, the s 28J application could not be taken further. The application to transfer the proceedings to the High Court under s 28J of the District Courts Act 1947, and for further ancillary orders, is also dismissed.

[34] As there appear to be a number of applications before the Court, and I am not certain they have all been determined, this judgment should be treated as an interim judgment. The parties have leave to make submissions on any other unaddressed issues.

Costs

[35] The Crown seeks costs. However, I gather that Mr H may be on legal

aid. Costs are reserved. If an application is to be pursued, the Crown should file submissions within 14 days, with submissions on behalf of Mr H to be filed within a further 14 days.

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Asher J