ALKAZAZ v DISTRICT COURT AT AUCKLAND [2023] NZHC 1041

ALKAZAZ v DISTRICT COURT AT AUCKLAND [2023] NZHC 1041 [3 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2022-404-1510[2023] NZHC 1041UNDER the Criminal Procedure Act 2011IN THE MATTER OF A judicial reviewBETWEEN AHMED ALKAZAZApplicantAND DISTRICT COURT AT AUCKLANDRespondentHearing: 24 April 2023Appearances: The applicant in personNo appearance for respondent (abiding)J E L Carruthers, counsel assisting the courtJudgment: 3 May 2023JUDGMENT OF CAMPBELL JThis judgment was delivered by me on 3 May 2023 at 4.00 pm pursuant to Rule 11.5of the High Court RulesRegistrar/Deputy RegistrarIntroduction[1] Mr Alkazaz sought to bring a private prosecution in the District Court againsthis former employer, Enterprise-IT Ltd (E-IT), and two of its employees. He allegedthey committed perjury during a proceeding he brought against E-IT in theEmployment Relations Authority (ERA). Judge D J Sharp directed that the chargingdocuments not be accepted for filing.1 The Judge considered the evidence providedby Mr Alkazaz was insufficient to justify a trial and that the proposed prosecution wasan abuse of process.2[2] Mr Alkazaz asks this Court to judicially review Judge Sharp's decision.Background[3] Mr Alkazaz was briefly employed with E-IT in 2016. E-IT dismissed himin December 2016. Mr Alkazaz commenced a proceeding before the ERA forunjustified dismissal.[4] Two of Mr Alkazaz's superiors at E-IT, Messrs Sadler and Zemba, completedwitness statements in the unjustified dismissal proceeding. They outlined concernsthey had with Mr Alkazaz's performance. Mr Alkazaz says that when Messrs Sadlerand Zemba were asked by Mr Alkazaz's counsel at the investigation hearing aboutcertain documentation generated during Mr Alkazaz's employment, they said it hadbeen lost or purged from E-IT's servers.[5] On 22 December 2017, the ERA issued a determination finding that E-IT hadunjustifiably dismissed Mr Alkazaz. The ERA awarded him lost remunerationtotalling $28,749.99 and $15,000 compensation for humiliation, loss of dignity andinjury to feelings. However, the ERA reduced the amounts ordered to be paid toMr Alkazaz by 20 per cent for contributory conduct on his part.[6] Mr Alkazaz was unhappy with the finding of contributory conduct. Heconsidered the evidence of Messrs Sadler and Zemba had contributed to that finding.1 Alkazaz v Enterprise IT Ltd DC Auckland, 20 June 2022, Judge D J Sharp.2 At [8]-[12].Mr Alkazaz therefore set about obtaining the documentation Messrs Sadler and Zembasaid had been lost or purged.[7] Mr Alkazaz first requested it from E-IT, which refused to engage with therequest on the ground it was vexatious. He then requested it directly from Air NewZealand, one of E-IT's clients. Following a lengthy email exchange between MrAlkazaz and Air New Zealand's then privacy officer, some of the documentation wasprovided.[8] In August 2018, Mr Alkazaz applied to reopen the ERA proceeding. One of hisgrounds was that Messrs Sadler and Zemba had perjured themselves. His applicationwas heard by the same ERA member who had heard Mr Alkazaz's unjustifieddismissal claim. The ERA issued its determination on Mr Alkazaz's re-openingapplication on 30 September 2019. In relation to the allegation of perjury, the ERAsaid this was a serious allegation and that perjury required a wilful or intentional tellingof an untruth.3 The ERA then said:[42] I take a significant part of the perjury allegation to relate to an issueabout the availability of the documents obtained from e-IT's client by privaterequest. Two witnesses said documents were unavailable being electronicallylost (during a server failure) or automatically purged after six months. MrAlkazaz says that "this is an explicit fabrication as it is evident now that thoseemails exist". He says the emails were retained on the client's servers and note-IT's servers.[43] Even from Mr Alkazaz's affidavit, it is clear that the evidence givenat the investigation meeting was limited, namely that e-IT did not have thosedocuments. The evidence at the investigation meeting was not that the clientdid not have the documents. The fact that the client did have the documentsdoes not establish perjury.[9] The ERA therefore declined to re-open the investigation. Mr Alkazazchallenged the ERA's decision in the Employment Court. This required that Court tomake a fresh decision on his re-opening application. In a judgment dated 22 October2020, the Court dismissed Mr Alkazaz's application.43 Alkazaz v Enterprise IT Ltd [2019] NZERA 560 at [40]–[41].4 Alkazaz v Enterprise IT Ltd [2020] NZEmpC 171.[10] Mr Alkazaz unsuccessfully sought leave from the Court of Appeal to appealthe Employment Court's decision.5 Then, in 2021, Mr Alkazaz applied to the SupremeCourt for leave out of time to appeal directly against the Employment Court's decision.On 16 August 2021, the Supreme Court declined leave.6[11] By the time the Supreme Court declined leave, Mr Alkazaz had applied to theEmployment Court for an extension of time to bring a late challenge against theoriginal ERA decision.7 In making that application, Mr Alkazaz again claimed thatthe evidence from E-IT was obtained by perjury.8 On 6 May 2022, the EmploymentCourt declined Mr Alkazaz's application.9 The Court said that Mr Alkazaz had a shortperiod of employment (around 90 days) with E-IT more than five years ago. He hadsince undertaken extensive litigation against E-IT, leading to more than 20 separatedeterminations or judgments at all levels in the Court system. It was not in the interestsof justice for E-IT to have to continue to face litigation brought by Alkazaz.10[12] Meanwhile, Mr Alkazaz had also referred his perjury complaint to Police. On3 December 2021, a Police sergeant advised Mr Alkazaz that the ERA determinationdated 30 September 2019 (declining Mr Alkazaz's application to re-open theinvestigation) had concluded there was insufficient evidence to establish perjury. Thesergeant said Police would not be investigating the matter further.Mr Alkazaz's proposed private prosecution[13] In May 2022, Mr Alkazaz proposed to commence private prosecutionsin relation to his claim of perjury. He filed six charging documents in the DistrictCourt, two against each of E-IT and Messrs Sadler and Zemba. The offencedescriptions against Messrs Sadler and Zemba are:Committed Perjury multiple times at the ERA alleging untruthfully that all thedocuments related to my work performance and work records wereunavailable being electronically lost (during a server failure) or automaticallypurged after six months.5 Alkazaz v Enterprise IT Ltd [2021] NZCA 413.6 Alkazaz v Enterprise IT Ltd [2021] NZSC 101.7 At [5].8 Alkazaz v Enterprise IT Limited [2022] NZEmpC 74 at [3].9 Alkazaz v Enterprise IT Limited [2022] NZEmpC 74.10 At [22], [28] and [30].Committed Perjury at the ERA and fabricated evidence about my workperformance and events at the workplace. Multiple instances of this offencewere committed as detailed in my affidavit supporting these charges.[14] The offence descriptions against E-IT are essentially the same, except that itis said that E-IT instructed two staff members to commit perjury.[15] In support of the proposed private prosecution, Mr Alkazaz filed two affidavits.One was a detailed affidavit by Mr Alkazaz, the other a brief affidavit from his wife.Mr Alkazaz also filed submissions in support. In his submissions, Mr Alkazaz said hesought not only punishment of perjury under s 109 of the Crimes Act 1961 but alsomonetary compensation of $100,000 for the reputational damage "imposed by theperjury committed by [E-IT] and [Messrs Sadler and Zemba]".Judge Sharp's decision[16] Judge Sharp noted that Mr Alkazaz sought damages from the defendants. HisHonour said no such remedy was available and the proposed private prosecution wasmisconceived.11[17] The Judge directed under s 26(3) of the Criminal Procedure Act 2011 that thecharging documents not be accepted for filing. His Honour's reasons are containedin the following paragraphs (footnotes omitted):[5] As an opening consideration, the proposed prosecutor should beaware that in many criminal trials (both jury and judge alone) evidentialconflicts between the defence and prosecution arise. Frequently the issue ofcredibility will be a matter of concern to one or both sides. The suggestion isoften made that witnesses have lied or are challenged about being dishonestabout their evidence. Very few of these challenges result in perjury chargesbeing laid. To an extent this is because the elements of the charge requirespecific proof. Section 112 of the Crimes Act 1961 provides that no one maybe convicted of an offence of perjury on the evidence of one witness aloneunless the evidence is corroborated in some material particular by evidenceimplicating the defendant. [6] Two of the charging documents are against Enterprise IT Limited.The mens rea requirements of the perjury charges refer to the statement madeby a 'witness'. The charging document against the company is not accepted.A company cannot legally commit perjury.11 Alkazaz v Enterprise IT Ltd DC Auckland, 20 June 2022, Judge D J Sharp at [3].[7] As regards the proposed prosecution of Paul Sadler and StephenZamba [sic] the Court of Appeal has held there is a need for careful analysisof the representation allegedly made and its falsity. The defendant must beshown to know the statement is false and have an intention to mislead.[8] The terms of the section do not cover half-truths or true statementswhich are misleading because no mention is made of other facts which areneeded if the true position is to be appreciated. Upon reading the extensivematerial filed by the proposed prosecutor, no basis for proof of the defendantsknowingly and wilfully providing false evidence under oath is present asidefrom assertions of such by the proposed prosecutor. This material provideddoes not withstand the Court of Appeal's requirements for establishing theelements of perjury.[9] The finding of ticket material held by Air New Zealand after thehearing and after a search for this material was conducted does not relegate awitness's assertion that the ticket material was not held by them or had beenpurged from their system, to being perjury. To show that what was said wasmore than a half truth or misleading statement requires further corroborativematerial.[11] Finally this proceeding is in effect a form of collateral challenge to theEmployment Relations Authority decision. Clearly the proposed prosecutoris dissatisfied with the original decision, 5 years of litigation have resulted.The issuing of a criminal prosecution on the material provided has everyappearance of an abuse of process.[12] The charging documents are not adequately supported for filing andpursuant to s 26(3) of the Criminal Procedure Act 2011 I direct that thecharging documents not be accepted for filing. This is on the basis thatmaterial provided is insufficient to justify a trial, alternatively and as well as,that the proposed prosecution is an abuse of process.Mr Alkazaz's application and submissions[18] Mr Alkazaz accepts that he is not entitled to any remedies on a privateprosecution and that he cannot bring a prosecution for perjury against E-IT. He appliesto judicially review the balance of Judge Sharp's decision.[19] Mr Alkazaz is self-represented. His application and submissions do notidentify clear grounds of judicial review. However, he makes two essentialcomplaints. One is with Judge Sharp's conclusion in [9] of his decision (quotedabove). In his written submissions, Mr Alkazaz says the Judge's conclusion wasincorrect because:The witnesses' statement that the ticket material no longer exists is not a half-truth but a complete falsehood, intended to mislead both the ERA and theApplicant [Mr Alkazaz] and circumvent formal document discovery. Theirclaim was not that they did not have the material, but that it was irretrievablylost. The fact that Air New Zealand conducted a search for the documentsdoes not change this, this is how to find documents in any documentsmanagement system, search for it. It is concerning that His Honour reachedthe conclusion that the evidence did not meet the threshold of perjury in thiscase based on this erroneous narrative.[20] Mr Alkazaz's other complaint is with the Judge's conclusion that the privateprosecution would be an abuse of process. Mr Alkazaz says that as a non-nativespeaker of English, he did his best to navigate the complexities of the New Zealandlegal system. He says that it would be unjust to punish a litigant in person for anyerrors he made in pursuing his claim of perjury through his earlier avenues oflitigation. Such errors should not, he submits, mean that pursuing the perjury claimthrough the correct avenue of a private prosecution is an abuse of process.Response to application[21] The respondent is the District Court. As is usual, the District Court abides thisCourt's decision on Mr Alkazaz's application. In those circumstances, Mr Carrutherswas appointed as counsel to assist the Court.[22] Mr Carruthers filed helpful and balanced submissions. He noted thatan applicant for judicial review has to show an error in the procedure the Judgefollowed, such as a failure to observe a mandatory step in the process, a misapplicationof relevant legal principles, taking into account irrelevant considerations, or failingto take into account relevant ones. He observed there was little point in contesting theJudge's assessment of the merits unless it was potentially so wrong as to be irrational.[23] Mr Carruthers submitted that Mr Alkazaz's application sought to challengeJudge Sharp's assessment of the merits. However, Mr Carruthers identified a potentialprocedural misstep by Judge Sharp. Mr Carruthers fairly submitted that, although thismisstep was not raised by Mr Alkazaz as a ground of review, it needed to beconsidered.Was there a procedural misstep?[24] The commencement of a private prosecution is controlled by s 26 of theCriminal Procedure Act. Relevantly, this provides:26 Private prosecutions(1) If a person who is proposing to commence a private prosecution seeksto 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 thatthe person proposing to commence the proceeding file formalstatements, and the exhibits referred to in those statements,that form the evidence that the person proposes to call at trialor such part of that evidence that the person considersis sufficient to justify a trial.(2) The Registrar must refer formal statements and exhibits that are filedin accordance with subsection (1)(b) to a District Court Judge, whomust determine whether the charging document should be acceptedfor filing.(3) A Judge may issue a direction that a charging document must not beaccepted for filing if he or she considers that—(a) the evidence provided by the proposed private prosecutorin accordance with subsection (1)(b) is insufficient to justifya trial; or(b) the proposed prosecution is otherwise an abuse of process.[25] Under s 26(1), a Registrar may accept a private charging document for filingor refer it to a Judge for a direction that formal statements and exhibits be filed. In thiscase the Registrar referred Mr Alkazaz's charging documents to Judge Sharp unders 26(1)(b).[26] Section 26(1)(b) envisages that if the charging document is referred to a Judge,the Judge will make a direction that the applicant file formal statements and exhibits.The record of proceeding from the District Court shows that the material that MrAlkazaz filed in support of his charging documents pre-dates those documents by afew days. The record does not include any s 26(1)(b) direction from Judge Sharp.I infer that Judge Sharp did not make any direction under s 26(1)(b).What is the consequences of the procedural misstep?[27] As Mr Carruthers submitted, the courts have on several occasions quasheddecisions to accept or decline private charging documents for filing on the ground theJudge did not make a direction under s 26(1)(b), even where supporting material hadbeen filed with the charging documents.12 Brewer J explained why in H T v TheDistrict Court at Auckland:13[25] Section 26 is specific in its direction as to what material a Judge cantake into account in deciding whether there is sufficient evidence to justifya trial. There is good reason for that. A person who knows that his or herstatement is being taken for the purpose of a Court proceeding, and that theyare a potential witness in a criminal trial, is likely to be careful in giving thestatement and declaring it to be true. Further, the provision of a formalstatement indicates that the person giving it is available to be a witness.[28] In D v Auckland District Court, where the applicant filed supporting materialwith her charging documents, the Court of Appeal said that if the Judge had failedto make a direction under s 26(1)(b) that was a "fundamental procedural error" anda "potential breach of natural justice" (in depriving the applicant of the opportunityto put her best evidence forward).14[29] I accept Mr Carruthers' submission that a failure to make a direction unders 26(1)(b) will not always invalidate the Judge's decision. The Judge may otherwisehave afforded the applicant the opportunity to file further evidence and exhibits,in which case the failure to make the s 26(1)(b) direction will have been of noconsequence.15[30] Mr Alkazaz was not otherwise afforded that opportunity. I consider that JudgeSharp's procedural error infects his Honour's conclusion that the material providedby Mr Alkazaz was insufficient to justify a trial. This means it is unnecessary for meto address Mr Alkazaz's challenge to the merits of that conclusion.12 H T v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459; Prescott v TheDistrict Court at North Shore [2017] NZHC 2828; Dunstan v District Court at Auckland [2022]NZHC 3308.13 H T v The District Court at Auckland [2015] NZHC 972, [2016] NZAR 1459.14 D v Auckland District Court [2022] NZCA 477 at [19] and [40]15 As was held to be the case in Mitchell v Porirua District Court [2017] NZHC 1331 at [74]–[76].[31] Judge Sharp also rejected the charging documents on the ground that theproposed prosecution was an abuse of process. Section 26(3) states two grounds onwhich a Judge may direct that charging documents not be accepted for filing. The firstis where the Judge considers the evidence provided by the applicant "in accordancewith subsection (1)(b)" is insufficient to justify a trial. The second is where the Judgeconsiders the proposed prosecution is otherwise an abuse of process. The secondground is not expressed as having any link to the evidence provided in accordancewith s 26(1)(b). It is apparent from this contrast (and from the language of s 26(1)(b)itself) that the purposes of the direction are to assist the Judge to decide whether thereis evidence sufficient to justify a trial and to give the opportunity to the applicant to puttheir best evidence forward.[32] I consider that it follows that a failure to make a s 26(1)(b) direction will notgenerally affect a Judge's decision to reject a charging document on the abuseof process ground. There might be rare cases where the applicant can show that, hadsuch a direction been made, he or she would have provided further material that wasrelevant to any concern about an abuse of process. I am satisfied that Mr Alkazazwould not have done so. When I asked him what further material he might have filedhad a direction been made, he merely said he would have attempted to file a statementfrom a potential witness from Air New Zealand.[33] For these reasons, I consider that Judge Sharp's failure to make a directionunder s 26(1)(b) did not undermine the abuse of process ground of his decision.Is there a substantive reviewable error in Judge Sharp's abuse of processdecision?[34] The issue that remains is whether there is any substantive reviewable error inthe abuse of process part of the Judge's decision.[35] Judge Sharp said that the proposed prosecution was a form of collateralchallenge to the ERA decision and that five years of litigation had resulted fromMr Alkazaz's dissatisfaction with that decision. For those reasons the Judgeconcluded the proposed prosecution was an abuse of process.[36] Mr Alkazaz has not persuaded me that there is any substantive reviewable errorin this aspect of Judge Sharp's decision. First, the Judge's reasons were in accordancewith legal principle. The reasons reflect concerns that were recognised by the Courtof Appeal in D v Auckland District Court:16[14] Abuse of process concerns can be particularly acute in the privateprosecution context. Private individuals may instigate criminal proceedingsto "coerce, intimidate or threaten others", or "with the intention to 'humiliate,embarrass or otherwise extract revenge'". At other times private prosecutionsmay be brought for collateral purposes. A further concern in some cases maybe that: private prosecutions provide just another court mechanism forvexatious litigants to achieve their purpose. When undeservingmatters are brought to court, it creates inefficiency, clogs the systemwith unnecessary cases, wastes public money and jeopardises therepute of the overall process.[37] Secondly, Mr Alkazaz has not pointed to any irrelevant consideration takeninto account by the Judge or suggested there was some relevant consideration theJudge failed to take into account. Nor is there any basis on which he could argue thatthe Judge's decision was irrational.[38] Indeed, I consider the Judge's decision was plainly correct. Mr Alkazaz hasrepeatedly failed in his attempts to pursue his claim of perjury. E-IT and Messrs Sadlerand Zemba have, as a result of those attempts, been drawn into years of litigation.Courts at every level have had their resources diverted towards dealing with them.That Mr Alkazaz sought damages when he first filed the charging documentsreinforces that he brought the proposed prosecution for a collateral purpose. ThatMr Alkazaz represents himself and is not a native English speaker does not detractfrom any of these points.Result[39] Mr Alkazaz's application for judicial review is dismissed.[40] There is no order as to costs.16 D v Auckland District Court [2022] NZCA 477 at [14] (footnotes omitted).______________________Campbell J