McKay v District Court at Napier [2016] NZHC 138 (11 February 2016)

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NOTE: PUBLICATION OF NAMES OR INDENTIFYING PARTICULARS OF APPLICANT AND PERSON MENTIONED AT [5] PROHIBITED UNTIL DISPOSITION OF TRIAL OF PERSON MENTIONED AT [5].

IN THE MATTER OF	an application for Judicial Review under the Judicature Amendment Act 1972
BETWEEN	GERALD GEORGE MCKAY Applicant
AND	THE DISTRICT COURT AT NAPIER First Respondent
AND	THE ATTORNEY-GENERAL Second Respondent

Hearing:	10 February 2016
Counsel:	J S Jefferson for Applicant T Westaway for First Respondent C J Lange for Second Respondent
_Judgment:	_{11 February 2016}

[1] Mr McKay faces charges in relation to alleged trust account irregularities. Three months prior to trial, set down to commence on 18 May 2015, he applied to stay proceedings on the ground of undue delay. Judge Doherty dismissed the

[2] Mr McKay filed an application for judicial review of the Judge’s decision.

[3] I heard the application for interim orders on 10 February 2016. For the reasons that follow the application is dismissed.

[4] The applicant was a partner in the Napier law firm McKay Hill. Following an inquiry by the Law Society and investigation by the police in 2010 and 2011, Mr McKay was charged in March 2011 with one representative count of criminal breach of trust, five charges of making a false document and five charges of theft.

however, concerns only Mr McKay and his challenge to Judge Doherty’s decision.

[6] The trials were set down to commence in May 2015, four years and two months after he was charged. The applicant (and Mr Hill) sought a stay on the basis their right to be tried without undue delay had been breached.²Judge Doherty

dismissed the applications on 1 April 2015.³His reasons followed on 22 May 2015.⁴

[7] References in the remainder of this judgment to the District Court Judge’s

[8] In order to assess whether or not the delay was undue Judge Doherty charted the elapsed time.⁵There were seven periods:

Over this period search warrants were executed; search warrants and seizure of material were successfully challenged in judicial review proceedings; an independent counsel was appointed to review seized material for privileged documentation and there were four call-overs.⁷

Over this 18 month period a further search warrant was granted but could not be executed until 7 May 2012 when the High Court varied interim orders; cloned computers were seized on 8 May but examination of the computers failed to deliver the trust account records the Police expected to find and the investigation was unable to be advanced using the results of this search warrant. The trial was

During this time the Crown unsuccessfully applied to the High Court for a further search warrant then to the District Court to amend the basis on which the original warrant was issued. Three telephone

In September 2014 the District Court sought an update. Counsel filed memoranda in response. Following a conference on 3 February 2015, and over defence counsel objections because they wished to raise pre- trial objections, a possible joint trial was set for 3 weeks commencing

18 May 2015. Pre-trial matters, including the applications for stay, were heard on 24 February 2015. Ruling No 1 (Joinder) was issued on 4 March 2015 and, following further submissions, Ruling No 2 (Stay) was issued on 1 April 2015.

This period resulted from Ruling No 2. Although a stay was not granted the Judge determined it was in the interests of justice to delay the trial to ensure Mr McKay had proper time to prepare for his trial.¹⁰

[9] Judge Doherty turned to the question whether the total effluxion of time amounted to undue delay.¹¹His analysis showed that the bulk of the time had been taken by evidential issues, for example, the period between September 2011 and May 2013 was occupied by independent counsel’s file investigation into privileged documents, a mechanism agreed by all counsel.¹²

passages were the subject of particular analysis and submission during the hearing of the application for interim relief.

[35] I am not certain that any party individually is wholly accountable for the delay over that period. They each had vested interests in the outcomes of the processes they either instigated or participated in.

[38] In terms of cause and circumstances I cannot say that the time taken to settle these evidential issues is undue in the sense of being unjustified. It was justified by the mechanisms appropriated for the specific (albeit unusual) task. Nor can I say that the total period puts it in the undue category. Extraordinary and excessive “yes” but undue in the legal sense “no”.

[39] Even if I am wrong and the delay is undue, I would not exercise my discretion to stay the proceedings. That remedy is exercised rarely and is generally a remedy of last resort in circumstances where specific prejudice cannot be found. ... [T]he participation of the accused in the evidential process was a contributing factor and relevant when it comes to remedy. That coupled with the nature of the charges and the considerable impact upon the alleged victims of the actions of the accused mean a stay would be inappropriate.

[40] In my view, this is a case where the remedy would best be reflected in a reduction in [to] sentence if conviction ensues or an acquitted accused might be compensated by awards of costs.

[11] In addressing the evidence of Mr McKay’s health, the Judge considered his affidavit and letters from his current and former doctors. There was no specific evidence indicating Mr McKay would be unable to properly participate in his trial. In fact the Judge was of the view that the difficulties counsel had in obtaining instructions from Mr McKay was more “from an unwillingness to face the realities of his situation rather than any debilitation”. In particular, personal health

[13] The application for judicial review seeks to have the District Court decision set aside as invalid and the application for a stay referred back to the District Court

[14] The s 8 application for interim orders seeks a declaration that, pending the determination of the application for judicial review, the District Court jury trial scheduled to commence on 15 February 2016 not proceed. The grounds are said to be:

(a) The District Court decision is unclear as to its findings and is thereby erroneous in law. On the one hand the Court found the delay not undue in a legal sense, but extraordinary and excessive on the other and best remedied by a reduction in sentence if convicted or compensation in the case of an acquittal.

(b) As a result it is unclear whether the Court has determined whether there has been a breach of the applicant’s rights sufficient to provide for either remedy. If the ruling of the Court is that there has been no breach of the applicant’s right to trial without undue delay the ruling is wrong in law.

(c) Without a determination on this issue the trial in this matter should not proceed. The applicant is entitled to know prior to trial whether if convicted there would be a reduction in sentence and, if so, its quantification. This is relevant to whether the applicant would elect to continue to stand trial at all.

(d) Without a determination the District Court would not be in a position to rule on the impact of the delay at the conclusion of the trial.

[15] To obtain interim relief the plaintiff must satisfy the Court that the orders sought are reasonably necessary to preserve the position of the applicant pending final determination of the judicial review proceedings.¹⁵

[16] If that condition is satisfied the Court has a discretion in deciding whether the orders sought are appropriate. In the context of immigration cases in particular it has been said that an applicant for relief is not required to demonstrate a strong possibility of success but rather that there is “a real contest between the parties, and

that the applicant has a respectable chance of succeeding in that contest”.¹⁶In the

dissimilar context of a challenge to a refusal to stay criminal proceedings there is a higher onus on the applicant because the onus on the applicant in a judicial review challenge to a refusal to grant a stay is in turn high. In King v District Court at Manukau, Andrews J noted the jurisdiction is to be exercised sparingly and only in very clear cases where the intervention of the High Court is imperative.¹⁷I rely on the same passage from the Court of Appeal judgment in Auckland District Court v Attorney-General¹⁸which Andrews J cited at [14].

Mr Barton concluded his submissions with the warning that the orderly conduct of criminal trials in the District Courts would or could be severely disrupted if judicial review of the District Court Judges’ exercise of discretion pursuant to s 347 is permitted. We have not overlooked this danger and therefore wish to stress, as did Anderson J in the Court below, that the power to review a District Court Judge’s decision under s 347 must be sparingly exercised. It is appropriate only in rare cases where, by reason of the nature of the error of jurisdictional law in the District Court, the intervention of the High Court is imperative (cf R v Crown Court of Norwich, ex parte Belsham at p 408).

exercised sparingly compounds the onus on the applicant to demonstrate the strength of his case in seeking interim relief.

¹⁵Judicature Amendment Act 1972, s 8(1); Carlton & United Breweries Ltd v Minister of Customs

¹⁶Esekielu v Attorney-General (1993) 6 PRNZ 309 (HC) at 313, applied in Prasad v Deportation Review Tribunal HC Auckland CIV-2007-404-8059, 19 February 2008 at [13] and cited in Singh v Minister of Immigration [2009] NZCA 50 at [26].

¹⁸Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.

[18] Against that backdrop it is appropriate to assess the merits of the application for review and the repercussions, public or private, of granting interim relief. That approach, which has its foundations in the Carlton & United Breweries Ltd case,¹⁹accords with settled principle.²⁰

[19] If those matters are established, relief remains discretionary and the Court may consider all the circumstances of the case.²¹I turn now to assess the strength of the applicant’s case.

[20] The applicant contends that the District Court decision that delay was not undue involved four mistakes of fact. They are particularised in the statement of claim.²²I take the view that none could jeopardise the validity of the decision on the

[21] One example illustrates the applicant’s misconception of the Judge’s decision. The first alleged mistake is said to be the Judge’s comment that “the applicant agreed to or participated in the processes surrounding the various search warrant applications and subsequent process, that led to the delay”.²⁴

[22] Mr Jefferson, counsel for the applicant, characterised this as “simply wrong”. When asked to identify the passage in the District Court decision containing this particular mistake, Mr Jefferson referred to paragraph [35]. Yet, the Judge does not

¹⁹_{Carlton & United Breweries Ltd v Minister of
Customs [1986] 1 NZLR 423 (CA).}

²⁰_{Easton v Wellington City Council [2010] NZSC 10,
(2010) 20 PRNZ 360 at [4]–[5].}

²¹Carlton & United Breweries Ltd v Minister of Customs [1986] 1 NZLR 423 (CA) at 430 per

Cooke J; King v District Court at Manukau HC Auckland CIV-2006-404-6310, 18 October 2006 at [8].

²³New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988]

[24] The Judge was completely neutral as to the contribution of any party to delay over this particular period. In any event for a decision to be set aside in judicial review proceedings on the basis of a mistake of fact the mistaken fact must be material to the determination.²⁵Attribution of fault is immaterial to determining whether, as a matter of fact, there has been excessive delay, although fault may be relevant in the assessment of any remedy.²⁶

[25] I consider this ground of review has little prospect of success. The Judge did not say what he is alleged to have said; he was neutral as to culpability for the delay; had he mistakenly attributed blame it would not have been a reviewable mistake of fact in the circumstances because blame-worthiness is not material to a determination of the question whether there has been undue delay.

[26] The applicant claims that three errors of law, individually or cumulatively, result in the District Court decision being erroneous in law. The applicant says the Judge erroneously:²⁷

(a) held that the applicant’s participation and/or acquiescence in the delay could be taken into account in determining whether the delay was undue.

(b) failed to give effect to the fact the obligation is on the prosecution to ensure trial without undue delay and that there is no obligation on any accused to progress matters to trial; and accused may acquiescence in

²⁵See for example East Pier Developments Ltd v Napier City Council CP28/98 HC Napier,

(c) held that the nature or seriousness of the charges and their impact on the alleged victims were relevant and could be considered in determining the appropriate remedy for delay.

[27] As to the supposed error at (a), the Judge made no such finding. The error is said to be contained in paragraph [35] of the decision. Yet, once more, the Judge does not say at paragraph [35] what the applicant attributes to him.

[28] As to (b) Mr Jefferson submitted that while there was no such specific reference in the District Court decision, the principle is derived from Williams v R. It is difficult to understand in what way the District Court Judge could give effect to the prosecution’s obligation to ensure trial without undue delay in the context of an application for a stay. In fact the Judge set the trial down and set a date that would give best effect to the applicant’s right to properly prepare his defence.

[30] Nor does (c) disclose error of law. The Judge was correct to observe that the nature or seriousness of the charges and their impact on alleged victims could be considered in determining the appropriateness of a stay in the event delay was undue.²⁸Such an approach reflects the public interest in the final determination of criminal charges unless it would be unfair to try the defendant or the defendant could no longer obtain a fair hearing.

[31] Perhaps of greater relevance is the fact that paragraphs [39] and [40] of the Judge’s decision are obiter comments and recognised as such by Mr Jefferson at the hearing. They are observations not bearing on the actual finding of no undue delay at [38] and are offered lest he is “wrong and the delay is undue”.²⁹

Mr Jefferson submitted that the final sentence of para [39] indicates that the Judge had in his mind the impact upon victims of Mr McKay’s actions when he concluded that there was no undue delay. His client was entitled to the presumption of innocence and yet the Judge, as I understood Mr Jefferson’s submission, predetermined his guilt as is revealed at [39].

[34] I consider this point to be without merit. The Judge is careful to refer to the “alleged victims”. At [39] the Judge explains why, even if there had been undue delay, he would not have granted a stay. All of the circumstances at the stage of proceedings at which undue delay is established are relevant to a consideration of the appropriate remedy. The Judge’s reference to the nature of the charges and the considerable impact on the victims of the (alleged) offending does not suggest bias or predetermination. Rather, these are matters which may properly be considered when determining an appropriate remedy. I consider the prospects of succeeding on this ground to be virtually non-existent.

[35] The applicant’s pleading is sparse. The statement of claim simply assets that, in all the circumstances, the District Court decision was one that no reasonable Court would make. To secure relief under this head the applicant faces a high hurdle. This ground of review adds nothing new to the preceding three grounds and its prospects of success are equally faint.

[36] A further blow to the applicant’s case is this: even were he to establish a ground of review, even if the application for stay was referred back to the District Court, and even if there were a future finding of undue delay, the prospects of a stay remain negligible. Staying a proceeding is likely to be the correct remedy only if the

_{delay has been egregious, or there has been prosecutorial misconduct or
a sanction is}

required against a prosecutor. Lord Bingham observed in Attorney-General’s Reference (No 2 of 2001)³¹that if the breach is established before the hearing the appropriate remedy may be public acknowledgement of the breach and action to expedite the hearing to the greatest extent practicable.³²In Williams v R the Supreme Court held that Lord Bingham’s observations were equally applicable to the right in New Zealand to trial without undue delay.

[37] In light of my assessment of the merits of the applicant’s case, and the approach I have taken to the exercise of my discretion, it is unnecessary to consider whether interim orders are necessary to preserve his position.

[38] Affidavit evidence was filed on behalf of the Attorney-General deposing as to events that had occurred since 22 May 2015 when Judge Doherty delivered his reasons. The material tended to cast doubt on the integrity of the applicant’s previous applications for stay on medical grounds. Mr Lange accepted that the evidence was not relevant to the challenge to the District Court decision itself but he submitted the evidence was relevant to the exercise of discretion to grant relief as well and to the further delay that would be occasioned by relief.

[39] I have not found it necessary to consider this evidence and I do not do so.

[40] The applicant’s ultimate objective is that there be no trial. That much was confirmed by Mr Jefferson at the hearing. He emphasised that the applicant’s focus is on clarification of his fundamental human right to a trial without undue delay.

[41] That being the case it is surprising that this proceeding was not filed until

21 January 2016, eight months after the decision which is challenged and only three weeks before the trial was due to start. The delay was explained by reference to the applicant’s ill-health, counsel’s jury trial commitments in November and December

_{2015 and then being on leave. Mr Jefferson acknowledged that the
application for}

interim orders is made hard against the trial date but fundamental rights are engaged and the interests of justice require interim relief.

[42] I tend to the view that this application, made so late in the day, appears – to borrow from the District Court Judge – “borne more from an unwillingness to face the realities of his situation” than a commitment to resolving any lack of clarity in the District Court decision.

[43] The late filing is even more concerning in light of the intention, conveyed to me during the hearing, that the applicant will appeal an adverse decision. Had the applicant chosen to initiate these proceedings in a more timely manner it is unlikely that an interim orders application would have been necessary.

High Court of New Zealand Decisions

McKay v District Court at Napier [2016] NZHC 138 (11 February 2016)