|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 3 August 2018
|
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
|
|
CIV-2018-406-1
[2018] NZHC 1863 |
|
BETWEEN
|
BRIAN CYRIL ROWELL
Plaintiff
|
|
AND
|
DISTRICT COURT AT BLENHEIM
First Respondent
|
|
AND
|
ATTORNEY-GENERAL
Second Respondent
|
|
Hearing:
|
12 July 2018
|
|
Appearances:
|
Plaintiff appears in Person
A Goosen for the Second Respondent
|
|
Judgment:
|
25 July 2018
|
JUDGMENT OF CULL J
[1] Mr Rowell seeks to judicially review Judge Zohrab’s decision declining to recuse himself from hearing Mr Rowell’s criminal charges.1 The basis for judicial review was that the Judge showed bias, in favour of the Prosecutor and against Mr Rowell, because the Judge “provided a privately-distributed minute” to the Prosecutor, for her use in New Zealand Law Society complaint proceedings, brought against her by Mr Rowell.
[2] The second respondent, the Attorney-General, opposes the application. The Attorney-General submits the judicial review application is moot and futile and Mr Rowell has not established actual or apparent bias.
1 Commissioner of Inland Revenue v Rowell [2016] NZDC 11857 [Recusal decision].
ROWELL v DISTRICT COURT AT BLENHEIM [2018] NZHC 1863 [25 July 2018]
[3] The key issues in this proceeding are:
(a) Did the Judge demonstrate actual or apparent bias towards the Prosecutor?
(b) Even if the Judge did, is this judicial review application moot as the criminal proceeding has subsequently been moved to the Wellington District Court and relief would be otiose?
Factual background
[4] Mr Rowell is facing 31 criminal charges in the District Court alleging he aided and abetted his companies to provide false GST returns.2 He filed an application to have the charges dismissed under s 147 of the Criminal Procedure Act 2011. On 10 February 2016, the Judge heard and dismissed the application. During the hearing, Mr Rowell became aware that the prosecution’s summary of facts was given to the Judge, at the Judge’s request, prior to the hearing. Although Mr Rowell had a copy of the summary, the facts of which he challenged, he was unaware the Judge had received a copy.
[5] On 15 April 2016, Mr Rowell filed a complaint with the New Zealand Law Society, against the Prosecutor, from the Department of Inland Revenue (the Prosecutor). He alleged the Prosecutor had not told him that she had filed the summary of facts.
[6] The Prosecutor, through the registry, advised the Judge of the complaint Mr Rowell had made to the Law Society against her. The Judge then issued a minute on 6 May 2016, in which he explained how the Court came to be in possession of the summary of facts.3 The Judge detailed how, when he was reading the file in advance of the application to dismiss the charges in February, he noticed there were no formal written statements on the file or a summary of facts. The Judge requested the Deputy
2 Under the Tax Administration Act 1994, s 92B.
Registrar to contact the Prosecutor to provide a summary of facts, to enable him to understand the factual context of the application.
[7] Due to an error on the part of the Deputy Registrar, the Judge’s minute was not sent to Mr Rowell. It was sent to the Prosecutor, who referred to the minute of the Judge in her defence of Mr Rowell’s complaint to the Law Society. Mr Rowell then became aware of the existence of the minute.
[8] Mr Rowell filed a further application to dismiss the charges as well as an application for the Judge to recuse himself. The Judge declined both applications on 28 June 2016.4
[9] Mr Rowell appealed the Judge’s recusal decision to this Court. On 14 September 2016, Simon France J dismissed his appeal for lack of jurisdiction.5 France J observed that if the minute was distributed to one party only, this would constitute an error in procedure. However, “inadequate distribution is not something to be necessarily laid at the Judge’s door.”6 Other than this issue, Simon France J considered the Judge’s recusal decision appeared to be an orthodox application of principle to the facts.
[10] On 10 August 2017, Mr Rowell’s criminal trial was transferred from Blenheim to the Wellington District Court by consent.7 On 13 December 2017, Mr Rowell filed these judicial review proceedings.
The Judge’s recusal decision
[11] In declining Mr Rowell’s application to recuse himself, the District Court Judge set out the two-stage inquiry required to determine recusal on the basis of bias:8
4 Recusal decision, above n 1.
5 Rowell v Commissioner of Inland Revenue [2016] NZHC 2167.
6 At [9].
7 Rowell v Commissioner of Inland Revenue [2017] NZDC 17545.
(b) ask whether those circumstances, if established, might lead a fair- minded lay observer to reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the case.
[12] The Judge identified that the key issue was whether a fair-minded, impartial and informed lay observer would conclude from his minute of 6 May 2016, that the Judge is unable to bring an impartial mind to the resolution of the question he might be required to decide in the case.
[13] The Judge observed he saw “nothing unreasonable” about his minute.9 It was a statement of the factual situation as to why he had requested a summary of facts. The Judge was “content to conclude that whilst Mr Rowell obviously is not happy with it”, it states the facts and a fair-minded and impartial observer would conclude the Judge was impartial and able to decide any of the issues with an open mind.
Mr Rowell’s position
[14] Mr Rowell argues in the course of the proceedings the Judge exhibited an outward appearance of bias and harmed Mr Rowell. Mr Rowell submits the Judge:
(a) demonstrated bias in favour of the Prosecutor, noting that the Judge knew the Prosecutor when he was a barrister in Wellington and was employed at the Institute of Professional Legal Studies;
(b) breached the principle of judicial impartiality;
(c) engaged in improper conduct not becoming his office, including by having a summary of facts containing disputed statements filed secretly in Court at the Judge’s request and using his authority to influence the
9 Recusal decision, above n 1, at [11].
outcome of the process in Mr Rowell’s complaint proceedings before the Law Society; and
(d) obtained extraneous information from the Prosecutor’s counsel and wrote a minute on behalf of the Prosecutor’s counsel, which were hidden from Mr Rowell and justifies his apprehension of bias.
[15] Mr Rowell submits his judicial review is not moot because if he is successful he will seek a rehearing of the decision of the Judge where he declined Mr Rowell’s application to dismiss the charges on 10 February 2016.
[16] Mr Rowell had applied under r 7.28 of the High Court Rules 2016 to cross- examine the Deputy Registrar, and supplied a list of proposed questions. At the commencement of the hearing, Mr Rowell advised that he was no longer pursuing his application to cross-examine the Deputy Registrar and withdrew his application, which was granted.
[17] Mr Rowell seeks an order or declaration that the Judge’s recusal decision was wrong in law and he should have recused himself. He also seeks costs.
Attorney-General’s position
[18] The Attorney-General submits Mr Rowell’s application is moot and futile as his criminal trial has been subsequently transferred to the Wellington District Court. The Attorney-General submits the judicial review application should be dismissed with costs.
The legal principles on bias
[19] The relevant principles for recusal were settled by the Supreme Court in the leading decision of Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.10 A Judge should recuse himself or herself on the basis of apparent bias if a fair-minded and properly-informed lay observer might reasonably apprehend that the Judge might not
10 Saxmere (No 1), above n 8.
bring an impartial mind to the resolution of the question which the Judge is to decide.11 This involves two stages:12
(a) First, the Judge must identify the circumstances that may lead the Judge to decide a case other than on its merits.
(b) Second, the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.
[20] The question of whether a Judge is impartial is “one of possibility (real and not remote), rather than probability”.13
[21] Recently, in A (SC 106/2015) v R, the Supreme Court noted that Judges should not recuse themselves without sufficient cause.14 The Court also outlined that under the test for recusal, the “fair-minded lay observer is presumed to view matters objectively and be reasonably informed about the legal system and the issues in the case.” This observer must also understand that a Judge is expected to be independent and sit on cases allocated to them unless grounds for disqualification exist.
Discussion
[22] Mr Rowell alleges that in issuing a minute, which was relied on by the Prosecutor in the Law Society complaint proceedings, the Judge could not bring an impartial mind to Mr Rowell’s criminal proceedings. Mr Rowell alleges that the Judge should not have got involved in the complaint process. He contends the circumstances are such, that the Judge may decide the case other than on its merits.
[23] There are two issues relating to the issuing of the Judge’s minute. The first is whether it demonstrates actual or apparent bias on the part of the Judge. The Judge became aware of the complaint by Mr Rowell against the Prosecutor for providing the summary of facts to the Judge without notifying Mr Rowell. The Prosecutor had
11 Saxmere (No 1), above n 8, at [3].
12 At [4], [20] and [86].
13 At [4] and [81].
14 A (SC 106/2015) v R [2016] NZSC 31 at [16].
advised the registry of the complaint Mr Rowell had made to the Law Society against her. In turn, the Judge issued his minute of 6 May 2016, setting out the circumstances in which he had asked the Prosecutor to provide a summary of facts in respect of the criminal charges Mr Rowell was facing, and how the Court came to be in possession of the summary of facts.
[24] I do not consider there is a logical connection between the Judge issuing his minute, the minute being provided as a relevant document in a Law Society complaint, and there being a possibility that the Judge was biased.
[25] During the hearing, Mr Rowell pointed to the fact that the minute did not include the names of the parties, as is normally included in such minutes. While the names of the parties are not included in the minute, I do not draw any adverse inference from that. It is clear that the Judge wished to explain, in as objective a way that he could, that he was responsible for requesting the summary of facts before the February hearing.
[26] The second issue raised by the issuing of the minute is that the minute was not provided to both parties. This is clearly a procedural error. Mr Rowell would not have had the opportunity to respond to the summary of facts when his dismissal application was heard (at the same time as his recusal application) as he was not aware of them before counsel referred to them.
[27] It is procedurally wrong to have information placed before a decision-maker, without the information being disclosed to all parties. While this may raise an issue of a breach of Mr Rowell’s rights to natural justice, it is clear this was not a deliberate intention to issue a minute “secretly” or to keep information from Mr Rowell. The Deputy Registrar admits it was a matter of oversight on her part, not to send Mr Rowell a copy of the minute. Although it may reflect poorly on Court administration, it occurred because of a genuine mistake or oversight and does not give rise to an appearance of bias on the part of the Judge.
[28] I consider that there is no connection between the issuing of the minute and the allegations of bias, and nor is there anything to suggest that the Judge acted without
impartiality. Although there was a procedural error on the part of the Court registry, it does not give rise to a fair-minded and properly informed lay observer apprehending that the Judge might not bring an impartial mind to the resolution of the criminal proceedings before him.
[29] There is nothing to suggest that the Judge acted without impartiality.
Is the application moot and should relief be awarded?
[30] Relief in judicial review proceedings is discretionary and it is inappropriate for the Court to exercise its discretion to grant relief where it could serve no useful purpose or have practical effect.15
[31] In support of the Attorney-General’s submission, Mr Goosen referred to the Court of Appeal’s decision in Fowler and Roderique Ltd v Attorney-General, where Casey J held:16
... events have overtaken this application, rendering any order that the Court may now make of academic interest only. Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 Notice, it cannot be justified now. To do so is of no advantage to the appellant ...
[32] The trial of the criminal charges, which Mr Rowell faces, was transferred to the Wellington District Court by consent on 10 August 2017. As the charges against Mr Rowell have been transferred to be heard in the Wellington District Court, the Judge will not preside over any further proceedings involving him. I accept the Attorney-General’s submission that this application is moot and there would be no practical effect of granting relief in this case. There is no need for the Judge to recuse himself and even if he did, it would not have any effect.
[33] Further, I note that the Court of Appeal observed Mr Rowell’s application to dismiss the charges under the Criminal Procedure Act was misconceived and could
15 Unison Networks Ltd v Commerce Commission CA284/05, 19 December 2006 at [83]; confirmed on appeal in Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42; Maddever v Umawera School Board of Trustees [1993] 2 NZLR 478 (HC) at 502; and Reihana v Crown Island Administering Body CA 193/04, 4 November 2005 at [38] – [39].
16 Fowler and Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56 (CA) at 78.
not have been successful on the arguments he was challenging.17 Mr Rowell could bring a further application to dismiss the charges in the Wellington District Court if he wished, with the proviso that if his application is brought on the same grounds, his likelihood of success may be poor, based on the Court of Appeal’s observations. There is no impediment, however, for Mr Rowell to make the application to dismiss the charges, on different facts and/or grounds.
Conclusion
[34] The application for judicial review is dismissed.
[35] Costs on a 2B basis are awarded to the Attorney-General, with such disbursements as are approved by the Registrar.
Cull J
17 Rowell v Commissioner of Inland Revenue [2016] NZCA 471 at [25].
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/1863.html