Wang v District Court of New Zealand sitting at the North Shore and Auckland [2014] NZHC 2756 (6 November 2014)

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UNDER	the Judicature Amendment Act 1972
IN THE MATTER	of an application for judicial review
BETWEEN	SHEN WANG First Plaintiff QIONG YAO QIU Second Plaintiff
AND	THE DISTRICT COURT OF NEW ZEALAND, sitting at the North Shore and Auckland First Defendant TIAN HONG WANG Second Defendant

This judgment was delivered by me on Thursday, 6 November 2014 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

SHEN WANG v THE DISTRICT COURT OF NEW ZEALAND, sitting at the North Shore and Auckland [2014] NZHC 2756 [6 November 2014]

[1] In a ruling dated 2 July 2014, Judge P Sinclair directed that charging documents naming Shen Wang and Qiong Yao Qiu as defendants (the defendants) should be accepted for filing in the North Shore District Court and that summonses should be issued to them. The charging documents had been filed by a private prosecutor, Tian Hong Wang (the informant), who stated in the unsigned charging documents that he had good cause to suspect that the defendants had together used documents, namely a Bank of New Zealand account opening authority dated

20 April 2011 and cheques from a specified BNZ account number to obtain a pecuniary advantage to the value of approximately $370,000.00.

[2] The charging documents were accordingly served on the defendants, who were summoned to appear in the North Shore District Court on 14 July 2014.

[3] On 21 July 2014, the defendants filed this application for judicial review in the High Court at Auckland challenging the ruling of Judge Sinclair that the charging documents should be accepted for filing and summonses issued to them. The prosecution was adjourned pending the outcome of these proceedings.

[4] The proceedings name the District Court as first defendant and the informant as second defendant. Counsel for the District Court has advised this Court that it will abide the decision of the Court. Counsel for the informant has also advised this Court that he will abide the decision of the Court as it appears from the pleadings that orders are only being sought against the District Court. There were, accordingly, no statements of defence filed, nor was there any appearance on behalf of either the District Court or the informant. It is surprising that the informant has chosen not to defend the proceedings.

[5] In an unsigned witness statement in English filed with the draft charging documents in the North Shore District Court, the informant says that he is a Chinese citizen and first came to New Zealand in January 2008 to travel. He believes that he first met the defendants in about May or June 2008. He became friends, in

particular, with Ms Qiu who was from the same home town in China. Since their initial meeting in 2008, the informant says he kept in touch with both defendants whenever he came back to New Zealand. He says that at the end of 2008, or at the beginning of 2009, he bought a house in Albany and Mr Shen Wang did some painting work on the house. He says he was thinking of selling that house and buying another property and says that Mr Shen Wang suggested that he look at buying a house in Pakuranga, closer to his house.

[6] The informant says that in April 2011 he came back to New Zealand and this time stayed with the defendants. During this visit the informant says that they went to see a real estate agent together and looked at about four houses for sale with the agent. In particular, they looked at a house situated in East Tamaki, which was listed for $1.68 million. The informant says that he did not have the cash to pay for a house at that price and, accordingly, they went to the BNZ in Newmarket, where they met a mortgage broker. The informant says that the mortgage broker told him that he would have some difficulty in getting a loan that he needed to buy the house because he was not a New Zealand resident and, accordingly, did not have a credit history in New Zealand. The mortgage broker suggested that if he had a joint account and had the backing of somebody else, then that would make it much easier to get a loan from the bank. The informant says that the mortgage broker brought up the possibility of opening a joint account with either of the defendants so that he could get a loan to buy the house. The informant says that Ms Qiu suggested opening an account with her mother, who lived in China.

[7] After considering the matter overnight, the informant says that he decided to buy the East Tamaki house. He says that he went back to the BNZ in Newmarket the next day. He says that he asked Ms Qiu how her mother could open a bank account in New Zealand without residing in New Zealand, but was told by Ms Qiu that it would not be a problem because she had a power of attorney for her mother and because the mortgage broker knew her and Mr Shen Wang. The informant says that the defendants encouraged him to open an account and transfer money into it so he could get pre-approval for a loan before he left New Zealand.

[8] The BNZ mortgage broker then apparently opened a joint account for the informant and Ms Qiu’s mother. The informant says that although he did not put any money into the account when he opened it, he did transfer money into the account soon afterwards. After opening the account, the mortgage broker apparently told the informant that he would be able to obtain a loan for $1 million as long as he supplied his Chinese bank details.

[9] After being assured that he would be able to obtain a loan from the BNZ, the informant says that he went back to the real estate agent with the defendants and signed an offer to purchase the East Tamaki house.

[10] The informant says he was in New Zealand only for a month and made the offer just before he was due to leave New Zealand. He says that Mr Shen Wang therefore advised him to execute a power of attorney. The informant says that the defendants told him they could then deal with the property on his behalf, even after he had left New Zealand. The informant says he was told that the power of attorney would be for the sole purpose of settlement of the property if his offer was accepted and was necessary so that money could be paid to the lawyers and real estate agent et cetera. The informant says he agreed to execute a power of attorney because he knew he was leaving soon and needed someone to handle the transfer of the property. Mr Shen Wang said he knew a lawyer called Alex Lee and accordingly he went to Mr Lee’s office with the defendants. There they had a meeting with Mr Lee and the informant signed a general power of attorney in favour of Mr Shen Wang. It was signed by the informant in the presence of Mr Lee.

$1.56 million just before he left New Zealand. It was also agreed that settlement would take place in six months because he was hoping to be back in New Zealand around that time. The informant says he returned to China on about 20 or 21 April

2011, which was the same day that he finalised the agreement for sale and purchase.

[12] After he returned to China, the informant says that Mr Shen Wang called him and asked him to send through money for the deposit. He therefore transferred

that after about two weeks he got another call from Mr Shen Wang, who told him that he needed to pay more money into the joint account otherwise the bank could not approve the loan. The informant says he therefore transferred another $370,000 in two separate transactions.

[13] In about June 2011, the informant says he got another phone call from Mr Shen Wang who told him that the BNZ had approved a loan of $980,000 and that he needed to pay the remainder of the balance to make up the $1.56 million purchase price. However, before settlement of the sale of the property in November 2011, the informant says he decided not to buy the property because his financial position had changed in China.

[14] The informant says he called Mr Shen Wang and told him that he was not going ahead with the purchase. Mr Shen Wang told him that he would then lose the

$100,000 that he had already paid as a deposit. The informant says that he did not mind too much if he lost the $100,000 as long as he got the remaining money from the joint account. He says he asked Mr Shen Wang about the $370,000, but was told by him that the money had already been paid out of the account for the house deal.

[15] The informant says he did not return to New Zealand until 20 July 2012. At that stage, he says, he had still not got any money back from the defendants, nor had he received information from them about what had happened to his money. He says he went to see the defendants and when he was at their house, Ms Qiu wrote a letter in Chinese to him confirming that the $470,000 deposited into the joint account belonged to him, not to Ms Qiu or her mother.

[16] Notwithstanding the acknowledgement of debt, the informant says that he still did not receive his money back from the defendants. He says that he has been to the BNZ to find out what was going on and found out that the account was closed in February 2012 and that there had also been a cheque book issued to the defendants, of which he knew nothing. He also says that he learnt from the BNZ that the money that he had sent from China had been deposited into the account, but that the defendants had then used cheques to transfer money out of the account for various reasons.

[17] On 16 October 2012 the solicitor acting for the informant wrote to Ms Qiu’s mother at the defendants’ address about the arrangement to purchase the East Tamaki house. The solicitor noted his instructions about a deposit of $100,000 and further sums paid into the joint account in excess of $400,000. The solicitor sought an explanation of what had happened to the funds. He concluded by saying that if he did not receive a response from either Ms Qiu’s mother or her legal advisors, the solicitor would take it that there was no satisfactory explanation available and would then take whatever steps were considered necessary to achieve a resolution of the matter.

[18] On 22 November 2012, rather than file civil proceedings, the informant made a complaint to the Police. The complaint was not actioned by the Police. Accordingly, on 4 April 2013, the informant, by his solicitor, lodged a charging document, summary of facts and witness statement with various supporting exhibits in the North Shore District Court. On the same day, Judge Wade, without hearing from counsel or giving reasons, noted the file “Summons to issue as requested”. The summonses were issued and the defendants obliged to attend Court in answer to them.

[19] On 4 June 2013, Ms Qiu was notified by Land Information New Zealand that the informant had lodged a caveat on 16 May 2013 against the property that she owned together with Oaklands Trustees Limited. There is no evidence of what equitable interest in the land the caveat purportedly protects.

[20] On 6 June 2013, in response to an enquiry from the solicitor acting for the informant, the Police advised him that his complaint was one of a considerable number of fraud complaints currently awaiting assignment to an investigator. The Police noted that the complaint would be reassessed and reprioritised by a detective sergeant within the Financial Crime Unit, utilising a dedicated fraud matrix which addressed a number of factors, including the sufficiency of legally admissible evidence, the nature and seriousness of the offending and the public interest in continuing the complaint. The solicitor was also advised that if he wished to

withdraw his complaint he may do so by contacting the initial investigation team. The Police later chose not to take any further action on the complaint because of the private prosecution.

[21] On 12 July 2013, the defendants filed judicial review proceedings in the High Court at Auckland challenging Judge Wade’s decision to authorise the issue of summonses to them. This was heard in the High Court at Auckland on 12 November

[22] In a judgment dated 26 November 2013, Duffy J noted that the filing of a charging document is a process provided for in the Criminal Procedure Act 2011 (Act), but the legislation was not in force at the time the Judge made his decision to authorise the issue of the summonses.¹On the substance of the complaint, Duffy J found that the decision authorising the issue of the summonses was reviewable for error of law in so far as there was a failure to provide reasons for the decision. The summonses issued to the defendants were therefore set aside and the matter was sent back to the District Court for fresh consideration in accordance with the law as

Duffy J found it to be. In short, Duffy J said that the District Court Judge would need to consider if the informant had taken the appropriate procedural steps under the Summary Proceedings Act 1957. He or she would then need to consider the request for a summons to issue in terms of the legal tests stated in R v West London

Metropolitan Stipendiary Magistrate, ex parte Klahn,²and to provide reasons to

[23] Immediately upon receipt of Duffy J’s judgment, Mr Deliu filed a memorandum in the North Shore District Court enclosing a copy of the High Court decision. He advised the Court that it appeared the informant intended to begin afresh in the sense of filing entirely new documents in support of his intended private prosecution. Mr Deliu made it quite clear to the District Court that the defendants wished to be heard on the question of whether or not there was a proper basis for leave to be given for a private prosecution to be instituted. He noted that

_{the District Court was previously not advised of the Police
investigation and}

¹_{Wang v North Shore District Court [2013] NZHC 3126,
[2014] NZAR 101 at [5].}

submitted that this was an important factor not previously taken into account by the District Court. Mr Deliu also set out proposed timetable orders leading up to a one day hearing regarding whether or not leave should be given for the charging documents to be accepted for filing and summonses issued.

[24] In a minute dated 2 December 2013, Judge Sharp directed that the file should be returned to Judge Wade and it was for Judge Wade to determine how he believed he should best deal with the informant’s application for a summons to issue against the defendants. She noted that if he considered that the defendants had a right to be heard then no doubt he would make suitable arrangements for a hearing.

[25] On 4 December 2013, Mr Deliu filed a further memorandum on behalf of the defendants in which he questioned whether Judge Wade should be involved further, but submitted that, regardless of which Judge was to consider the fresh application filed by the informant, an inter partes process was required.

[26] In a minute dated 4 February 2014, Judge P Sinclair stated that she had reviewed the judgment of Duffy J and the memorandum of defence counsel filed 29

November 2013 and noted that Judge Wade had recused himself for the purpose of determining whether summonses should be issued to the defendants. In light of Duffy J’s decision and the contents of the defendants’ memorandum, the Court sought an indication from the informant as to whether he required a decision on the issuing of summonses or whether he intended commencing new proceedings and laying new informations. The informant subsequently filed a new charging document, draft summonses to the defendants, a summary of facts and an unsigned statement by the informant without providing copies to the defendants. The District Court also did not invite the defendants to participate further in the process.

[27] In a minute dated 2 May 2014, Judge Sinclair noted that the informant had filed a private prosecution in the Court alleging that the defendants had used a document for pecuniary advantage, pursuant to s 228(b) of the Crimes Act 1961. She noted that the charge laid was a representative charge and that a charging document and formal statement and exhibits as well as a summary of facts had been provisionally filed. At the outset, she noted that she was unable to accept the

charging document for want of form. She noted that the charging document provided by the informant related to two prospective defendants, but that s 16(2)(a) of the Act provided that the charging document must include the particulars of the defendant. This, she said, was in the singular and not plural and concluded that there must be one charging document per defendant. She also noted the charging document did not provide the defendants’ date of birth, which was likely required for the purposes of s 16(2)(a). Finally, she noted that the charging document did not include a category of offence, as required by r 3.1(a) of the Criminal Procedure Rules 2012.

[28] Judge Sinclair also noted that, pursuant to s 18 of the Act, the Court had a broad discretion to order further particulars. She stated that it would be of assistance to the Court in the exercise of determining whether to direct that the charging document should be accepted for filing, to have a copy of the sale and purchase agreement, the power of attorney document, a copy of the transaction history for the joint account at BNZ, as well as any evidence pertaining to the payees of the cheques provided in the exhibits. She concluded:

If the defects in form (referred to above) are remedied and the further particulars provided do not change anything materially, given the information contained in the statement, summary of facts, exhibits and threshold prescribed in s 26 of the Act, I am minded to direct that the charging documents be accepted for filing. A full decision will be given on this issue when the matters, referred to in paragraphs 3 – 6, have been attended to.

[29] This minute was not provided to counsel for the defendants. Counsel for the informant provided the Court with the revised documentation and further evidence sought by way of letter dated 20 May 2014. In particular, the accompanying letter from counsel for the informant specified the revised documentation and further evidence as two charging documents in respect of each of the two defendants, a summary of facts, the informant’s statement together with the BNZ account operating authority, the sale and purchase agreement and copies of 11 cheques.

[30] Then in a ruling dated 2 July 2014,³Judge Sinclair concluded that the evidence provided, if accepted by the trier of fact, was sufficient in law to prove the

essential elements of the charge beyond reasonable doubt. The evidence was therefore sufficient to justify a trial. She ruled that the charging documents should be accepted for filing and summonses issued to the defendants.

[31] In the ruling, Judge Sinclair referred to the criteria to be determined under s

26 of the Act as to whether a charging document should be accepted or refused. First, she noted that there was nothing to indicate that there was an abuse of process in this case. She stated that there was nothing to suggest conduct by the informant had been at odds with justice or that he was acting in any way unfairly or in an unconscionable manner. Furthermore, there was nothing to suggest that the circumstances of the case were such that the potential future trial of the defendants would be unfair.

[32] As to the whether the evidence provided was sufficient to justify a trial, Judge Sinclair noted that the informant alleged that the defendants encouraged him to purchase a particular property and to open a joint bank account with one of their parents in order to access a mortgage and to sign a power of attorney in order to allow the defendants to act of his behalf in relation to the purchase of the property.

[33] She noted that the formal statement from the informant indicated that he thought he was giving the defendants authority to act on his behalf in relation to the conveyancing matter and that he sent through money via a Chinese financing company for the purposes of the bank approving a larger loan in order for him to purchase the property. The informant alleged that the defendants asked for transfers of money and then withdrew this money from the joint bank account and used it for purposes other than the purchase of the house and had not returned the money when requested to do so.

[21] In my view, the evidence provided by the private prosecutor, if accepted by the trier of fact, is sufficient to prove that the defendants acted dishonestly in using cheques to pay themselves or other persons from the joint account, and that they could not have had a belief that the informant consented to or authorised payments other than as part of the legitimate conveyancing matter. The evidence provided by the private prosecutor, if accepted by the trier of fact, is also sufficient to prove that the defendants did

not have any claim of right to the money in the joint bank account. The bank account was jointly operated by the private prosecutor and one of the defendant’s mothers – Xiaouhua Xia, although it appears the authorisation was signed by the defendant, Qiong Yao Qiu. None of the funds in the account appear to have come from the defendants.

[22] The evidence, if accepted, would sufficiently prove that the defendants could not have had any belief that they had any proprietary or possessory right in the funds, only the right to use the money as the private prosecutor directed, and for his benefit.

[35] Judge Sinclair then considered whether the evidence was sufficient to prove that Mr Shen Wang and Ms Qiu used or attempted to use the documents and whether they did so with intent to obtain any pecuniary advantage. On this issue she concluded:

[27] The evidence provided, particularly copies of the cheques drawn from the joint account, and bearing what appears to be one of the female defendant’s signatures, would be sufficient to prove that the defendants intended to use the cheques to enhance their own or the cheque payee’s position. The person who cashed the cheques (which must have occurred, given that the bank account balance was zero when it closed) would have had his/her financial position enhanced.

[36] Judge Sinclair concluded at [28] that the evidence provided, if accepted by the trier of fact, was sufficient in law to prove the essential elements of the charge beyond reasonable doubt and the evidence was sufficient to justify a trial.

(a) The District Court denied the defendants their right to be heard, either by way of an oral hearing or on the papers, on the question of the issue of summonses to them. They say that this was a breach of natural justice or, alternatively, was a breach of a legitimate expectation that the defendants had, that they would be heard on the issue of whether the reconsideration should be ex parte or inter partes.

(b) The District Court had no evidence before it, in that the only brief of evidence provided was unsigned and in the English language. Alternatively, the District Court made an error of fact that there was

proof of any offending by Mr Shen Wang. They say that this gave rise to an error of law that the defendants should be jointly charged when the case against each of them had to be discretely considered.

	(ii)	Instead of being a naïve tourist, the informant had to come New Zealand and immediately began large scale commercial
		ventures.
	(iii)	The informant lacked permanent residence in New Zealand
		and as such had no right to be present to present his case to a Judge or jury and/or be cross-examined, which would
		prejudice the defendants’ fair trial rights.
	(iv)	The defendants had the informant’s authority to use the BNZ
		documents and/or did not sign any of the documents that formed the basis of the charge.
	(v)	The dispute between the defendants and the informant was a civil one.
	(vi)	The informant had previously tried to resolve the dispute between the parties civilly and only when not successful was
		recourse made to the criminal jurisdiction.
(d)	The	District Court acted unreasonably by taking into account

irrelevant considerations, namely inadmissible evidence, in particular, hearsay as to what BNZ supposedly reported to the informant about what the defendants purportedly did.

[38] As noted in Adams on Criminal Law,⁴although any person may commence a proceeding (s 15), s 26 enables a District Court Judge to reject a charging document that a private prosecutor seeks to file if the evidence the prosecutor relies on is insufficient to justify a trial or if the prosecution is otherwise an abuse of process. The ability to do so is new and has no counterpart in the previous statutory framework.

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

(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.

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—

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

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

[40] Although this was not an issue initially raised by the defendants, I note Judge

Sinclair referred to the charge as a representative charge. Section 20 of the Act permits representative charges. It provides:

⁴Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CPA 26.01].

(b) the offences are alleged to have been committed in similar circumstances over a period of time; and

the complainant cannot reasonably be expected to particularise dates or other details of the offences.

(b) the offences are alleged to have been committed in similar circumstances such that it is likely that the same plea would

be entered by the defendant in relation to all the offences if they were charged separately; and

(c) because of the number of offences alleged, if the offences were to be charged separately but tried together it would be

unduly difficult for the court (including, in any jury trial, the jury) to manage the separate charges.

[41] The charge in the present case does not fall within s 20(1) as the informant has particularised dates and other details of the offences, in this case, the number, payee and monetary value of the cheques.

[42] The charge therefore needs to fall within s 20(2) to be permissible. The first difficulty is that two different types of documents are specified in the one charge – a BNZ account opening authority [sic] and cheques drawn on the specified BNZ account number. I can understand how cheques might be used to obtain a pecuniary advantage, but I do not understand how an account opening authority might be used to obtain a pecuniary advantage. It does not appear therefore that s 20(2)(a) is satisfied. Using an account opening authority and a cheque are not sufficiently similar to be “offences of the same type”.

[43] The second difficulty is that there may be different defences available to the defendants. For instance, the first cheque drawn on the account is payable to Alex Lee Lawyer Limited. The informant acknowledges that he attended at the law offices of Alex Lee where he signed a general power of attorney in favour of Ms Qiu. It is possible that this cheque is payment for the legal services provided to the informant by Mr Lee. Another of the cheques was for the sum of $100,000, which was the amount of the deposit paid on the East Tamaki house and which the informant acknowledges forfeiting. I am therefore unsure whether it is likely that

the same plea would be entered by the defendant in relation to all the offences if they were charged separately in terms of s 20(2)(b).

[44] The third difficulty is that it would not be unduly difficult, in terms of s 20(2)(c), for the Court (including, in any jury trial, the jury) to manage the separate charges if the use of the account opening authority and the use of each of the cheques were charged separately. In Tuckerman v R,⁵an indictment containing 55 charges, including 48 charges of using a cheque for the purpose of obtaining a pecuniary advantage, was laid against the defendant. The Court of Appeal ordered that the

impending trial be confined to 20 counts to be selected by the Crown as being manageable for a jury. Here there would only be 12 separate charges. A Court or jury would not, in my view, have undue difficulty in managing 12 separate charges.

[45] When considered against the three requirements for a representative charge in s 20(2), I am of the opinion that the charging documents in the present case are invalid as not being permitted in terms of s 20 of the Act. Therefore the Registrar should have refused to accept the charging document for want of form.⁶

[46] In her ruling dated 2 July 2014, Judge Sinclair referred to the fact that charging documents, “formal statements” and exhibits, as well as a summary of facts, had been provisionally filed. She then makes reference to a 10 page statement, which purports to be by the informant.⁷The copy obtained by counsel for the defendants from the District Court after the filing of these proceedings is unsigned. It seems unusual that it is not signed, but in the absence of any assistance from counsel for both the District Court and the informant, I have to approach this case on the basis of the documents obtained by the defendants from the District Court.

[47] In the form obtained from the District Court, the informant’s statement does not, in my view, meet the requirements of a formal statement set out in the Act and

Criminal Procedure Rules. Section 82 of the Act sets out the requirements for formal statements. It provides:

(b) the statement contains, or is accompanied by, a declaration by the witness that the statement is true and that the witness made it with the knowledge that it is to be used in court proceedings;

[48] Rule 2.2 of the Criminal Procedure Rules also relates to authentication of documents. It provides:

served, or issued must be authenticated by the person responsible for its content.

(b) in the case of any document in an electronic form, any electronic means that adequately identifies that person and the date of authentication.

(3) However, an affidavit or other document required to be sworn must be signed and dated.

[49] I am of the view that the informant’s statement is deficient in two respects. First, it contains no declaration by the informant that the statement is true. It concludes:

I have made this statement knowing that it will be used for criminal proceedings and that I may be prosecuted if the information is not true.

[50] Secondly, it has not been authenticated in terms of r 2.2(2), in that it has not been signed or dated by the informant. In his affidavit sworn on 1 September 2014 and filed in the judicial review proceedings in this Court, Mr Shen Wang states that, based on his dealings with him, the informant does not speak fluent English. His statement is however in English. It may well have been drafted by his counsel.

[51] A further fundamental problem is that the informant’s statement contains inadmissible hearsay on the critical issue of the use of the cheques. The informant states:

77 I have been to BNZ bank to find out what was going on. I wanted a print out of the history and lending documents they had. I found out that

• The money I sent from China was deposited into the account; but Jason and Emma [the defendants] then used cheques to transfer the money out of the account to Jason’s company and car companies etc.

[52] On its face, this statement infringes the prohibition on hearsay evidence in s

17 of the Evidence Act 2006. Counsel for the informant has not made any attempt to justify its admission under s 18, which contains the main exception to the exclusionary rule in s 17. The unsigned statement by the informant does not, in and of itself, provide reasonable assurance that the hearsay statement is reliable nor has the informant provided any evidence that the BNZ employee to whom the informant spoke is unavailable as a witness.

[53] Furthermore, the question could be asked how a BNZ employee could know that it was the defendants themselves who used the cheques. One of the 11 cheques appears to be made out to a company, but there is no evidence that this is “Jason’s company”. The summary of facts refers to the sole director as being Mr Shen Wang, but this needs to be proved by admissible evidence. There are also three cheques made out to Alex Lee Lawyers, which presumably were for legal services. There is no evidence from Mr Lee whether the services provided were for the informant or the defendants or both.

[54] In all the circumstances, I am of the view that Judge Sinclair was wrong to rely on an unsigned and thereby unauthenticated formal statement without the required declaration from the informant, whose level of understanding and speaking English is unknown, and which contained inadmissible hearsay evidence on a critical issue. She fell into error accordingly when she found that the evidence provided, if accepted by the trier of fact, was sufficient to prove that the defendants acted

dishonestly in using cheques to pay themselves or other persons from the joint account and that they could not have had a belief that the informant consented to or authorised payments other than as part of the legitimate conveyencing matter.

[55] There is another difficulty in Judge Sinclair’s ruling, dated 2 July 2014, directing that charging documents naming the defendants be accepted for filing and summonses issued to them. The ruling does not differentiate between the position of the individual defendants. Counsel for the informant took the view at the outset that the defendants were jointly liable and filed one charging document naming both defendants. In her minute dated 2 May 2014, Judge Sinclair correctly noted that there should be a separate charging document for each defendant. Counsel for the informant therefore filed two separate charging documents on 20 May 2014.

[56] However, in her ruling dated 2 July 2014, Judge Sinclair referred to the defendants jointly throughout, even though Mr Shen Wang was not a signatory to the bank account and does not appear to have signed any of the cheques in issue. The signature on them appears to be the same as the signature that appears next to the name Xia Xiaohua on the account operating authority. There does not appear to me to be any evidence as to use of the cheques by Mr Shen Wang, although the handwriting on one of the cheques appears to be quite different to that on other cheques. There is no evidence as to the author of any of the handwriting. I am of the view that the position of the individual defendants required separate consideration by Judge Sinclair, which she does not appear to have done.

[57] Counsel for the defendants submit that they had a right to be heard as to whether or not the charging documents should be accepted for filing and summonses issued to them. Counsel refers to s 27 of the New Zealand Bill of Rights Act 1990 and the doctrine of audi alteram partem or a duty to hear both sides of a dispute before making a decision. In the context of this case, it is unnecessary for me to make a ruling on the defendants’ right to be heard. I would reserve consideration of the issue for a later case in which there should be full argument. However, the Court

undoubtedly has a residual discretion to hear a proposed defendant if it is felt necessary for the purpose of reaching a decision.⁸

[58] Counsel for the plaintiff also refers to the doctrine of legitimate expectation. In this regard, counsel cited the case of Attorney-General of Hong Kong v Ng Yuen Shiu,⁹in which the Privy Council held that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority’s statutory duty. In this case, counsel points to the minute of Judge M-E Sharp, dated

2 December 2013, as containing a promise that consideration would be given to the issue of whether the defendants ought to be heard. Judge Sharp stated:

[8] Equally, it is for Judge Wade to determine how he believes he should be deal with the informant’s application for a summons to issue against the defendants, based on the present information. If he considers that the defendants have a right to be heard, then no doubt he will make suitable arrangements for a hearing. I leave that to him. It is not for this Court in its trial jurisdiction to make timetabling directions. The file will be returned to the North Shore District Court where Judge Wade will consider the matter and how he should best deal with it.

[59] It appears that no consideration was given by Judge Sinclair to the issue of whether counsel for the defendants should be afforded the opportunity to make submissions on the issue of summonses to them. In any event, no decision is recorded. Again, it is unnecessary in the context of this case for me to make a finding that there has been a breach of legitimate expectation on the part of the defendants that they would be heard. Again, it would have been helpful if I had heard full argument on this issue.

[60] I am, however, of the view that it is good practice to invite a proposed defendant to provide material and make submissions prior to the Court accepting a charging document for filing as evidenced by the rulings contained in the recent case of Hard v Koncke¹⁰and the minute of Judge B Davidson at the Masterton District

⁸_{R v West London Metropolitan Stipendiary Magistrate, ex
parte Klahn above n 2 at 936, 223.}

⁹_{Attorney-General of Hong Kong v Ng Yuen Shiu [1983] UKPC 2; [1983]
2 AC 629, [1983] 2 WLR 735 (PC).}

[8] ... Prima facie, this evidence, if accepted by the Court, is sufficient to prove the elements of the offence of assault beyond reasonable doubt.

[9] However, in this case I have concerns that there may be grounds for a finding that no useful purpose would be served in continuing to trial or that the proposed prosecution is otherwise an abuse of process. There is some background to this alleged incident, including on-going Family Court proceedings. ...

[10] In order to satisfy my statutory duty to prevent an abuse of process, in my view, the proper course in this proposed prosecution is for the proposed defendant to be given copies of the charging document, the supporting documents and this decision. The proposed defendant should be given the opportunity to submit material on the issue of whether a summons should issue.

[3] The essence of the proposed prosecution is an allegation of perjury by the proposed defendant in an affidavit sworn on 28 May 2013 in support of an application to recall the proposed prosecutor’s parole.

[4] Having considered all the material, in my view, the proper course, at this stage, is to refer the charging document and other material to the proposed defendant. The proposed defendant, or her legal representative, should have an opportunity to submit material on the issue of whether the charging document should be received for filing.

[5] I take this course of action because under s 26(3)(b) of the Act I have a statutory duty to prevent an abuse of process. As to evidential sufficiency, or otherwise, I note that the proposed defendant’s assertion at paragraph 24 of her affidavit, which forms the core basis of the perjury allegation, is based not on her personal knowledge but a review of case notes of another probation officer. It seems to me those case notes will be an important document in assessing evidential sufficiency.

[63] In her ruling dated 2 July 2014, Judge Sinclair stated that there was nothing to indicate that there was an abuse of process, or conduct by the informant which had been at odds with justice or that he was acting in any way unfairly or in an unconscionable manner. Judge Sinclair however heard only one side of the story. Naturally, the informant supplied nothing to suggest he was acting in any way unfairly or in an unconscionable manner. He may not be acting unfairly or in an unconscionable manner, but as the well-known aphorism suggests, there is always two sides to every story. The Police almost inevitably give a suspect the opportunity to give an explanation for their behaviour before filing any charging document in

Court. In fact, they recognise that suspects have a right to be made aware of any allegations against them and given a reasonable opportunity to provide an explanation. I see no good reason why the same process should not apply to prosecutions undertaken privately.

[64] In all the circumstances, the defendants’ application for judicial review of the District Court decision, dated 2 July 2014, to accept charging documents for filing and to issue summonses to them is granted. Those decisions are quashed and the matter remitted to the District Court for reconsideration. I have found that the charging documents did not meet the requirements of s 20 of the Act for a representative charge. I have also found that the evidence provided by the informant was insufficient to justify a trial as the informant’s formal statement did not contain the necessary declaration as to truth nor was it signed and dated as required by the Criminal Procedure Rules. It also contains inadmissible hearsay evidence on the crucial issue of the use of the cheques. The evidence is, therefore, at this stage, insufficient to justify a trial. The position of the individual defendants was also not separately considered. In the absence of full argument, I did not consider it necessary or desirable to determine whether the defendants had a right to be heard, but proffered the opinion that it would have been preferable to have heard them in this case.

[65] As a postscript, I comment that I find it surprising that the informant has not issued civil proceedings against the defendants in order to recover the money he says he is owed. The recovery of the money he says he is owed is obviously the informant’s primary motivation. The defendants have also always maintained that the dispute between them and the informant is a civil dispute. It is likely that the dispute could have been resolved by now if the informant had issued civil proceedings when he first complained to the Police in November 2012, especially if, as he says, he has an acknowledgement of debt from Ms Qiu.

Hearing:	9 October 2014
Appearances:	F C Deliu for Plaintiffs No appearance by or on behalf of First and Second Defendants
_Judgment:	_{6 November 2014}

High Court of New Zealand Decisions

Wang v District Court of New Zealand sitting at the North Shore and Auckland [2014] NZHC 2756 (6 November 2014)