DELIU v THE MINISTER OF POLICE [2021] NZHC 2458

DELIU v THE MINISTER OF POLICE [2021] NZHC 2458 [17 September 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-2483[2021] NZHC 2458UNDER the Judicial Review Procedure Act 2016,Part 30 High Court Rules, New Zealand Billof Rights Act 1990 and DeclaratoryJudgments Act 1908IN THE MATTER of proceedings moving for an application forjudicial review, writs, civil and bill of rightsclaims and a petition for declaratory reliefBETWEEN DOCTOR FRANCISC CATALIN DELIUApplicantAND THE MINISTER OF POLICERespondentRemote hearing: 17 September 2021Appearances: Applicant in personD Jones and C N Tocher for the respondentDate of judgment: 17 September 2021JUDGMENT OF JAGOSE JThis judgment was delivered by me on 17 September 2021 at 4.00pm.Pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, WellingtonCopy to:Applicant[1] On this application for judicial review, the applicant ("Mr Deliu") claims therespondent (the "Minister") erred in declining to engage with Mr Deliu's request toremove police officers prosecuting him, and to reallocate the prosecutions to otherpolice officers for reconsideration. Mr Deliu also claims the Minister's failure to replyto Mr Deliu's response, contending for such errors, is a breach of natural justice.[2] On the day prior to hearing, Mr Deliu sought my recusal. I declined to recusemyself.1 On the day of hearing, Mr Deliu renewed his application for my recusal.Having already declined his application, I dismissed its renewal.2[3] At the hearing, citing my dismissals of his applications for my recusal,Mr Deliu declined further to participate in its "sham". For the Minister, Daniel Joneshad nothing to say. I therefore determine Mr Deliu's application for judicial review onthe written submissions from each party.Background[4] The parties helpfully have agreed facts for my determination:1. [In] February 2017 the Auckland Central New Zealand Police in theDistrict Court at Auckland charged [Mr Deliu] with two counts of assaultwith a weapon.2. [In] April 2018 the Auckland Central New Zealand Police in the DistrictCourt at Auckland charged [Mr Deliu] with two counts of attempting topervert the course of justice.3. On 6 October 2020 [Mr Deliu] wrote to the [Minister] in relation to theabove two proceedings, requesting that:3.1 The Police officers and indeed the unit with conduct of these cases beremoved from conduct of the cases.3.2 The cases be reallocated to Police officers not from Auckland whohave had no previous dealings with [Mr Deliu], for reconsideration ofwhether criminal charges should be pursued.4. [Mr Deliu] gave the [Minister] 1 month to respond, indicating hisacceptance of [Mr Deliu]'s proposal, indicating that any failure to do sowould result in his commencing judicial review and whistleblowing thematter to the media.1 Deliu v Minister of Police HC Auckland CIV-2020-404-2483, 16 September 2021 (Minute ofJagose J) at [5].2 Deliu v Minister of Police HC Auckland CIV-2020-404-2483, 17 September 2021 (Minute ofJagose J).5. On 8 October 2020 the [Minister] responded to [Mr Deliu] through anemail sent by his Secretary. In that email the [Minister] declined[Mr Deliu]'s request on the basis that:The investigation and prosecution of offences are the responsibility ofthe Commissioner of Police as stated in s 16 of the Policing Act 2008.The Commissioner must act independently of any Minister of theCrown in discharging this responsibility.This ensure that these matters remain free of any political influence orinterference.6. The email indicated that whilst the request would normally be forwarded[to] the Commissioner of Police but as [Mr Deliu] had already copied hisrequest to the Commissioner, this would not happen in this case.7. On 9 October 2020 [Mr Deliu] responded in the following terms:With respect, I was seeking a Ministerial direction, which I do notbelieve is prohibited, and indeed is expressly provided for in sub-§(1)(e) and also, to be clear, I was not asking for any assistancewith the investigation or prosecution of offences, but rather theremoval of conflicted constables. The net effect of that would bea reconsideration of whether to charge, but that is not somethingI was asking the Minister to be involved in, as I accept that wouldbe a matter for the Police exclusively. So, can the Minister pleasereconsider his refusal to intervene as I believe it is premised on anerror of law (as to the provision cited supra) and/or facts, interalia, what I was asking for was not to consider whether or notalleged crimes ought to be investigated or if charges should belaid, but rather whether it was proper for the personnel involvedto have been involved? Please let me know, now that I haveclarified the position thanks to your helpful e-mail.8. The respondent has not replied to that email.9. On 8 October 2020 the Commissioner of Police confirmed that he hadforwarded [Mr Deliu]'s 6 October 2020 request to the Police'sinvestigation team and on 18 November 2020 further agreed to considerit.10. To date [Mr Deliu] has not been notified of any determination of hisrequest although he has, on a number of occasions, followed it up withPolice.Relevant law[5] The relevant law of judicial review requires little elaboration. It is that publicor statutory decision-makers must exercise their powers "in accordance with the law,fairly and reasonably".3 'Fair' and 'reasonable' are terms of art in judicial review,3 New Zealand Fishing Industry Association Inc v Minister of Agriculture and Fisheries [1988] 1NZLR 544 (CA) at 552.respectively broadly meaning procedurally regular and substantively rational. But theoverlapping nature of the considerations makes discrete analysis unnecessary.4 It iswell recognised the right to natural justice in any case depends on the context,5 and itsextent varies "with the power that is exercised and the particular circumstances,including the statutory context, in which a decision is made".6[6] Also relevant are aspects of the Policing Act 2008:3 PurposeThe purpose of this Act is to provide for policing services in New Zealand,and to state the functions and provide for the governance andadministration of the New Zealand Police.8 PrinciplesThis Act is based on the following principles:(a) principled, effective, and efficient policing services are a cornerstoneof a free and democratic society under the rule of law:(b) effective policing relies on a wide measure of public support andconfidence:(c) policing services are provided under a national framework but alsohave a local community focus:(d) policing services are provided in a manner that respects human rights:(e) policing services are provided independently and impartially:(f) in providing policing services every Police employee is required toact professionally, ethically, and with integrity.9 Functions of PoliceThe functions of the Police include—(a) keeping the peace:(b) maintaining public safety:(c) law enforcement:(d) crime prevention:(e) community support and reassurance:(f) national security:(g) participation in policing activities outside New Zealand:4 Official Assignee v Chief Executive of the Ministry of Fisheries [2002] 2 NZLR 722 (CA) at [85].5 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].6 Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].(h) emergency management.10 Roles of others acknowledged(1) It is acknowledged that important and valuable roles in the performanceof the functions of the Police are played by—(a) public agencies or bodies (for example, certain departments of State,and local authorities); and(b) the holders of certain statutory offices (for example, Māori wardens);and(c) parts of the private sector (for example, the private security industry).(2) It is also acknowledged that it is often appropriate, or necessary, for thePolice to perform some of its functions in co-operation with individualcitizens, or agencies or bodies other than the Police.11 Effect of sections 8 to 10Nothing in sections 8 to 10—(a) imposes particular duties on, or gives particular powers to, the Police,the Commissioner, any Police employee, or the Minister; or(b) affects the powers, functions, or duties of any agency other than thePolice, or any person who is not the Commissioner, a Policeemployee, or the Minister.16 Responsibilities and independence of Commissioner(1) The Commissioner is responsible to the Minister for—(a) carrying out the functions and duties of the Police; and(b) the general conduct of the Police; and(c) the effective, efficient, and economical management of the Police; and(d) tendering advice to the Minister and other Ministers of the Crown;and(e) giving effect to any lawful ministerial directions.(2) The Commissioner is not responsible to, and must act independently of,any Minister of the Crown (including any person acting on the instructionof a Minister of the Crown) regarding—(a) the maintenance of order in relation to any individual or group ofindividuals; and(b) the enforcement of the law in relation to any individual or group ofindividuals; and(c) the investigation and prosecution of offences; and(d) decisions about individual Police employees.Discussion[7] Section 16 renders the police "largely independent from the executive".7 Butthe Minister plainly may give lawful directions to the Commissioner,8 which is whatMr Deliu contends to be seeking in requesting of the Minister removal, reallocationand reconsideration by the police.[8] The lawfulness of such directions must distinguish between matters for whichthe Commissioner is responsible to the Minister under s 16(1) and those s/he is notunder s 16(2). It is a "critical" and "decisive" distinction.9 Thus the question is whichside of the line Mr Deliu's request falls. He argues it is open to the Minister unders 16(1) to 'oversee' the police "in circumstances where a conflict-of-interest, if notoutright bad faith, is arguably presented". The point is not elaborated further and thebalance of Mr Deliu's submissions is conclusory.[9] The Minister's permissible 'oversight' can only be in circumstances other thanthose articulated in s 16(2). Mr Deliu's request for removal, reallocation andreconsideration determinedly is in relation to s 16(2)'s enforcement of the law inrelation to him, the investigation and prosecution of those alleged offences, anddecisions about individual police officers in doing so. The request is about the chargesMr Deliu faces, and the identity of police officers who should investigate andprosecute them (including in the exercise of their discretion). The request thuscomprehensively falls without the scope of the Minister's permissible 'oversight'. TheMinister therefore did not err in declining Mr Deliu's request. Thus there can be nobreach of natural justice in failing to reply to Mr Deliu's response to the contrary. Theposition already was determined by the Minister's earlier decision. Nothing remainedto be considered by the Minister.Result[10] Mr Deliu's application is dismissed.7 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [53], n 123.8 Policing Act 2008, s 16(1)(e).9 Bain v Minister of Justice [2013] NZHC 2123, [2014] NZAR 892 at [131].Costs[11] In my preliminary view — as the unsuccessful party in this averagely complexproceeding requiring counsel of average skill and experience, and in which a normalamount of time is considered reasonable for each step in the proceeding (excludingappearance at its hearing, for which no time is considered reasonable) — Mr Deliushould pay 2B costs to the Minister on each step in the proceeding excludingappearance at its hearing.[12] If my view is not accepted by the parties, or they cannot otherwise agree,I reserve costs for determination on short memoranda of no more than five pages —annexing a single-page table setting out any contended allowable steps, timeallocation, and daily recovery rate — to be filed and served by any claiming partywithin ten working days of the date of this judgment, with any response or reply to befiled within five working day intervals after service.—Jagose J