Mitchell v Tyson [2016] NZHC 2210 (19 September 2016)

Last Updated: 5 October 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-20

CRI-2016-485-21
CRI-2016-485-22 [2016] NZHC 2210

IN THE MATTER OF	The Criminal Procedure Act 2011
BETWEEN	KERRYN MITCHELL Appellant
AND	JOANNE TYSON, STELLA BROWN AND DARYLDINE MULU Respondents

Hearing:	8 September 2016
Appearances:	Appellant in Person S D Carter for Respondents
Judgment:	19 September 2016

_{JUDGMENT OF CLARK J}

Introduction

[1] Ms Mitchell, who was a sentenced prisoner at Arohata Prison, sought to commence private prosecutions against three Department of Corrections officers and presented charging documents for filing. She alleged offences of theft in respect of the first and second intended defendants and assault in respect of the third intended defendant.

[2] The Registrar referred the charging documents to Judge Walker under s 26 of the Criminal Procedure Act 2011 for his decision as to whether any of the charging

_{documents were to be accepted for filing.}

MITCHELL v TYSON, BROWN AND MULU [2016] NZHC 2210 [19 September 2016]

[3] Following a hearing at which the intended defendants were heard Judge Walker directed that the charging documents were not to be accepted for filing.¹

[4] Ms Mitchell filed an application for judicial review of Judge Walker’s decision.² She also filed three appeals against the three decisions contained in the reserved judgment of Judge Walker. The respondents say there is no jurisdiction to appeal such a decision. Accordingly, on 20 March 2016 France J directed the parties to file submissions as to jurisdiction.

[5] The issue which this judgment determines is whether there is jurisdiction to appeal a direction under s 26 of the Criminal Procedure Act that a charging document should not be accepted for filing.

The District Court judgment

[6] In affording the intended defendants an opportunity to be heard Judge Walker identified the two issues for determination in each case as being:

(a) whether the evidence was insufficient to justify a trial; and

(b) whether the proposed prosecution was an abuse of process.

[7] If either question was answered in the affirmative the charging document would not be accepted for filing. In determining whether the evidence was sufficient to justify a trial Judge Walker considered he was entitled to take into account not only what Ms Mitchell had put before the Court but also the affidavits filed by the intended defendants. This enabled him to be properly informed as to all material facts and to exercise the control over private prosecutions that is the purpose of s 26. Judge Walked looked for more than demonstration of a prima facie case. The requirement to consider whether the evidence was sufficient to justify a trial widened the inquiry to include consideration of whether or not the intended prosecution

_{stands little or no chance of success.}

¹ _{Mitchell v Tyson [2016] NZDC 3514.}

² CIV-2016-485-195.

Theft charges

[8] On 5 June 2015 Ms Mitchell was transferred from her cell having allegedly made threats of violence towards Ms Brown and Ms Tyson. Ms Mitchell said when they moved her to a new cell, they unlawfully dealt with, destroyed, or gave away her property.

[9] The first intended defendant’s affidavit detailed the Prisons Operations Manual requirements for dealing with the property of prisoners moving between cells. The property remaining was listed, checked against an existing property list and then a schedule and all the property was placed into the Principal Corrections Officer’s area.

[10] In her affidavit the second officer deposed to being able to see her colleague in the interview room through the glass, placing property in the packing crate. It was her evidence that the property was sorted and catalogued and placed into the custody of the Principal Corrections Officer.

[11] Ms Mitchell was not present at the sorting of the property. It appeared to the Judge that all she was able to say was that only some of her property was reissued to her in the new cell. Ms Mitchell had no evidence that the process described in the affidavit evidence was not what occurred. No evidence was placed before the Judge that the officers acted other than in accordance with the Prison Operations Manual. There was not even a prima facie case and the charging documents were not to be accepted for filing.

Assault charge

[12] Turning to the allegation of assault by the third officer, Ms Mitchell alleged that on 2 June the officer entered the interview room, charged at Ms Mitchell and pushed her into cupboards. Ms Mitchell fell to the ground with the officer on top of her and the officer refused to allow Ms Mitchell to get up.

[13] Copies of the incident report together with incident information reports from other officers involved in the event were provided to the Judge.

[14] As a result of the event Ms Mitchell was charged with assaulting a Corrections officer (unrelated to these proceedings). The charge was proved after a defended hearing before a Visiting Justice and Ms Mitchell received a penalty of nine days confinement in a cell and 40 days forfeiture of privileges.

[15] The Judge found there was an “inherent improbability” in Ms Mitchell’s

narrative.

[16] The Judge concluded that on the basis of evidence likely to be given by the officers, Ms Mitchell’s prosecution had no prospect of success. The evidence upon which Ms Mitchell must rely, namely, her version of events, was insufficient to justify a trial. Additionally, Ms Mitchell’s attempt to use her private prosecution to relitigate the matter already dealt with by the Visiting Justice was an abuse of process.

Grounds of appeal

[17] In her three notices of appeal Ms Mitchell relies on three provisions in the Criminal Procedure Act 2011: ss 215, 217 and 218. The ground of appeal specified in each notice of appeal is that the Judge acted on a wrong principle, failed to take into account a relevant matter, took account of irrelevant matters and was plainly wrong.

The parties’ respective contentions

Appellant

[18] Ms Mitchell submitted that the High Court has an “inherent substantive jurisdiction” to oversee an inferior court. That jurisdiction arises by the operation of the Judicature Act 1908 and the Judicature Amendment Act 1972. The District Court Judge exercised a discretion and that is susceptible to challenge by judicial review as to procedure, and appeal as to the decision itself. Ms Mitchell contends that her right to judicial review does not affect or limit the availability or scope of her appeal right. She contends that “the wheel of justice should not come to a grinding halt before it has even started its journey”. The High Court should exercise its substantive

inherent jurisdiction to imply a right of appeal where statutory provisions conferring an appellate jurisdiction have not specifically conferred such rights.

[19] Although her notices of appeal relied on ss 215, 217 and 218 Ms Mitchell submitted at the hearing that s 296 is in fact the relevant appeal provision and it confers an appeal right from the decision of Judge Walker.

[20] Section 296 applies if a person has been charged with an offence. Ms Mitchell said that pre-requisite was met. The intended defendants had been charged. A “CRI” number had been allocated to each of her charging documents and all three intended defendants appeared before Judge Walker.

[21] The Judge found no fault with the form of the charging documents. It was a miscarriage of justice not to allow the charges to be accepted for filing. Judge Walker erred in both law and fact in his directions under s 26. For aggrieved citizens private prosecutions are an important mechanism against capricious or corrupt or biased failure to prosecute offenders. Ms Mitchell submitted that although she is a prisoner, she still has all her civil rights and they are not impliedly removed by reason of her imprisonment.

Respondents

[22] Ms Carter submitted that the Court has no jurisdiction to hear an appeal against a decision made under s 26(3) of the Criminal Procedure Act. The Act codified rights of appeal in criminal proceedings. If there were an inherent jurisdiction to hear general appeals from decisions of the District Court relating to criminal procedure that would render the Criminal Procedure Act appeal provisions redundant.

[23] While s 296 confers a right to appeal on a question of law that section only applies when a person has been charged with an offence. That has not happened here. Further, the question of law must arise in proceedings that relate to or follow the determination of a charge. There are no proceedings and there has been no determination of a charge.

[24] The appellant’s remedy is judicial review, which she has filed.

Analysis

[25] The power of a District Court Judge to reject a charging document sought to be filed by a private prosecutor is conferred by s 26 of the Criminal Procedure Act:

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.

(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.

[26] Section 26 has been described as providing the statutory basis for balancing the rights of a private prosecutor to prosecute those who offend against the criminal

law with the rights of individuals not to be subjected to a prosecution that is without merit.³

[27] The ability to reject a charging document on grounds now provided in s 26(3) has no counterpart in the statutory framework preceding the Criminal Procedure Act. Controls on prosecutions brought with insufficient evidence or for an improper purpose were exercised by other means, for example, refusing to issue a summons when an information was laid or by the Attorney-General staying a proceeding. In the indictable jurisdiction a defendant could be discharged under s 347 of the Crimes

Act 1961.⁴

[28] The procedure which Judge Walker followed in this case in affording the intended defendants an opportunity to make submissions on the material to be relied on by Ms Mitchell was orthodox and has been commended as good practice.⁵ But what avenue is available to a putative private prosecutor whose charging document is not accepted for filing? Ms Mitchell says s 296 of the Criminal Procedure Act provides her with a right of appeal. But the requirements of s 296 tell against

Ms Mitchell’s position.

[29] Section 296 provides:

296 Right of appeal

(1) This section applies if a person has been charged with an offence.

(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.

(3) The question of law in a first appeal under this subpart must arise—

(a) in proceedings that relate to or follow the determination of the charge; or

(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

³ _{HT v District Court at Auckland [2015] NZHC 972 at [12]–[14].}

⁴ _{Adams on Criminal Law (online looseleaf ed, Westlaw) at [CPA26.01].}

⁵ Wang v District Court [2014] NZHC 2756, [2014] NZAR 1428 at [60]; HT v District Court at

Auckland, above n 3.

(4) The question of law must not be one that—

(a) arises from a jury verdict; or

(b) arose before the trial and has already been decided under subpart 2.

[30] The Criminal Procedure Act consolidated and updated the appeal provisions in the Crimes Act 1961 and the Summary Proceeding Act 1957 to provide one set of coherent provisions applying to each appeal category (such as appeals against convictions or sentence or on questions of law).⁶

[31] Although decided in a different factual context the Court of Appeal in Anderson v R described the main focus of s 296 as being to simplify procedure and consolidate the appeal provisions in the Crimes Act and Summary Proceedings Act “rather than affecting substantive appeal rights”.⁷

[32] Ms Mitchell fails at the first limb: s 296 applies if a person has been charged with an offence. Before it can be said that a defendant is charged in terms of s 296, at the least, the charging document must have been accepted for filing. If charging documents have not been accepted for filing it cannot be said that anyone has been charged with an offence. That the Registrar physically took the charging documents for the purpose of reference to the Judge and that the documents were allocated CRI numbers and that the proposed three defendants appeared before Judge Walker to give their account of the factual allegations against them does not constitute the charging of a person with an offence.

[33] Ms Carter submitted that the point at which a person “is charged with an offence” is a matter of fact and will depend on the circumstances of each case. As a matter of law a defendant should be deemed to be charged with an offence “once they are required to engage in the criminal justice system” for instance, when a

_{summons is issued under s 33 of the Criminal Procedure Act.}

⁶ _{Criminal Procedure (Reform and Modernisation) Bill 2010 (243–1) (explanatory note).}

⁷ Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [55]. The decision at issue in Anderson v R was the refusal of the District Court Judge to allow the defendant who had elected trial by judge alone, to change her election to trial by jury.

[34] The authorities reflect different approaches to the meaning to be ascribed to “charge”. In R v Taylor⁸ Fisher J assumed, without deciding, that “charged” refers to the occasion when a police officer formally advises an arrested person that he or she is to be prosecuted and gives the particulars of the charges the arrested person faces. That contrasts with the position which Hammond J took in R v Lory⁹ where, on the facts of that case, the “charge” arose at the time the information was laid.

[35] Goddard J considered these two High Court decisions in R v Gibbons¹⁰ when she determined that

... “charged” must refer to an intermediate step in the prosecutorial process when the prosecuting authority formally advises and arrested person that he is to be prosecuted and gives him particulars of the charges he will face.

[36] Goddard J acknowledged this was different from the position taken by the majority of the Canadian Supreme Court in the Charter case of R v Kalanj¹¹ but the case before Goddard J required to be considered in the context of the New Zealand Bill of Rights Act 1990 and the rights under ss 23(2) and 24(a) that arose on being charged with an offence.

[37] It is unnecessary to engage in the kind of analysis that was essential for determination of the issues that arose in those cases. That is because whether one is charged at the time a summons is served under s 33 of the Criminal Procedure Act — which I consider to be the correct position — or at some other point, the fact is that in this case the charging documents were not filed. Therefore even on an analysis which takes the earliest possible time of charging as being when the charging documents are filed, there has been no filing and therefore, in terms of s 296 no “person has been charged with an offence”.

[38] There is a further precondition for the application of s 296. The question of law in a s 296 appeal must arise in proceedings that relate to or follow the determination of the charge. Ms Carter correctly submitted that here, there are no

_{proceedings. A criminal proceeding is commenced by the filing of a charging}

⁸ _{R v Taylor HC Hamilton T66/91, 24 February 1992.}

⁹ _{R v Lory (No 8) HC Hamilton T6/96, 5 September 1996.}

¹⁰ _{R v Gibbons [1997] 2 NZLR 585, (1997) 14 CRNZ 552 at 560.}

¹¹ R v Kalanj [1989] 1 SCR 1594.

document¹² and no charging document has been filed. Nor has there been any determination of the charge. It is unnecessary to discuss this point further nor the Court of Appeal’s analysis of what constitutes a “determination” for the purpose of s 296, except to observe that I do not consider that a direction not to accept a charging document for filing is remotely, let alone “closely”, linked to disposition or “determination”.¹³

[39] The appellant’s remedy lies in judicial review. The Court of Appeal recognised in R v Anderson that the availability of judicial review was relevant in construing the scope of s 296.¹⁴

[40] Ms Mitchell contends, incorrectly, that there is an inherent jurisdiction to imply a right of appeal and that the Court should do so in this case. The correct analysis is not the focus and extent of the Court’s inherent jurisdiction but the source of a right to appeal a matter of criminal procedure. Those rights are statutory. If an aggrieved party cannot bring her or himself within the statutory rights of appeal conferred by the Criminal Procedure Act then there are no appeal rights and an application for judicial review under the Judicature Amendment Act 1972 may be their only course.

Result

[41] Section 296 does not permit the appeal which Ms Mitchell seeks to bring and consequently the Court has no jurisdiction to entertain it.

_{Karen Clark J}

Solicitors:

Luke Cunningham & Clere, Wellington for Respondents

¹² _{Criminal Procedure Act 2011, s 14.}

¹³ In contrast the Court of Appeal in Anderson v R, above n 7, considered that a decision about whether a trial is to be by judge alone or by jury is closely linked to disposition as it decides the form of trial at which the determination will be made. The importance of that election is reflected in s 24(e) of the New Zealand Bill of Rights Act 1990.

¹⁴ At [46].