CROCKETT v CHRISTCHURCH INTERNATIONAL AIRPORT LIMITED [2022] NZHC 435

CROCKETT v CHRISTCHURCH INTERNATIONAL AIRPORT LIMITED [2022] NZHC 435 [11 March2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-7[2022] NZHC 435IN THE MATTER OF Criminal Procedure Act 2011BETWEEN ERROL GRAEME CROCKETTApplicantAND CHRISTCHURCH INTERNATIONALAIRPORT LIMITED & OTHERSRespondentsHearing: On the papersAppearances: Applicant in PersonK H Cook for RespondentsJudgment: 11 March 2022JUDGMENT OF MANDER J[1] Mr Errol Crockett applied to the District Court at Christchurch to commence aprivate prosecution against Christchurch International Airport Ltd (the Airport) and itsboard of directors and management team. He alleged various offences under theCrimes Act 1961, including perjury, conspiring to defeat justice, obtaining bydeception, accessing a computer system for a dishonest purpose, and numerouscharges alleging the use of forged and altered documents with intent to deceive.11 The following charges were alleged: Section 108 – perjury; s 113 – fabricating evidence; s 116 –conspiring to defeat justice; s 240 – obtaining by deception or causing loss by deception; s 249 –accessing computer system for dishonest purpose; s 250 – damaging or interfering with a computersystem; s 256 – forgery; s 257 – using forged documents; s 258 – altering, concealing, destroyingor reproducing documents with intent to deceive; s 259 – using altered or reproduced documentwith intent to deceive; s 310 – conspiring to commit offence; and s 312 – being an accessory afterthe fact to crime.[2] The registrar referred the proposed charges to Judge Neave, under s 26 of theCriminal Procedure Act 2011, in order for him to make a decision as to whether thecharges should be accepted for filing. Judge Neave determined the proposed chargingdocument was deficient and should not be accepted for filing, and Mr Crockett'sapplication to commence a private prosecution was declined.[3] Mr Crockett now seeks to appeal that decision. However, the proposeddefendants have taken issue with the purported appeal. They argue there is no right toappeal a decision of a District Court Judge declining to accept a charging documentfor filing. They submit the appropriate course is for Mr Crockett to make anapplication for judicial review.2 Submissions were filed in support of this objectionand Mr Crockett, in accordance with my direction, has filed submissions in response.Background to proposed private prosecution[4] Mr Crockett's proposed private prosecution arises from a motor vehiclecollision that occurred while he was in the employ of a rental car company and resultedin the termination of his employment. For the purposes of bringing a personalgrievance in the Employment Court, Mr Crockett sought a copy of CCTV footagefrom the Airport. After viewing this footage, Mr Crockett concluded the video hadbeen altered by the proposed defendants and that it depicts a separate collisioninvolving someone other than himself.District Court decision[5] The commencement of a private prosecution is governed by s 26 of theCriminal Procedure Act (the Act):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,2 Mitchell v Tyson [2016] NZHC 2210, [2016] NZAR 1545.that form the evidence that the person proposes to call at trialor such part of that evidence that the person considers issufficient 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 prosecutor inaccordance with subsection (1)(b) is insufficient to justify atrial; or(b) the proposed prosecution is otherwise an abuse of process.(4) If the Judge determines under subsection (2) that the chargingdocument should not be accepted for filing, the Registrar must—(a) notify the proposed private prosecutor that the chargingdocument 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 toaccept a charging document for want of form.[6] Judge Neave identified two questions for his determination as to whether acharging document for a proposed private prosecution should be accepted for filing:(a) whether the evidence the prosecutor relies on is insufficient to justify atrial; and(b) the proposed prosecution is otherwise an abuse of process.[7] The charging document filed by Mr Crockett in the District Court alleged a raftof offences against the Airport and its "Directors and Management Team". JudgeNeave found the proposed charging document effectively amounted to a nullity, notonly because it purported to allege 11 different offences in the one document but alsobecause it purported to charge numerous persons, including the Airport's"management team", which has no corporate identity and is unrecognisable as a legalentity. In addition to the purported charging document being bad for duplicity, otherdeficiencies were identified by the Judge which, in combination, led to the inevitableconclusion that the document could not be accepted for filing.[8] While the application to commence a private prosecution would have to bedeclined on that basis alone, the Judge, for completeness, comprehensively reviewedwhether there was sufficient evidence to proceed with the charges as alleged. It is notnecessary, for the purposes of determining whether this Court has jurisdiction toentertain an appeal, to review the evidential deficiencies in the proposed chargesidentified by the District Court. I simply record Judge Neave found there was aninsufficient evidential basis on the material supplied by Mr Crockett for any of theproposed charges he sought to bring against the proposed defendants. Accordingly, itwas found the application to commence the private prosecution would also fail forwant of evidential sufficiency.The purported appeal[9] Mr Crockett filed a "Notice of General Appeal" seeking to challenge theDistrict Court's rejection of his charging document. He purported to rely upon ss 220and 221 of the Act for the purposes of bringing his appeal. Those provisions concernfirst appeals brought under subpart 2 of the Act which governs appeals against pre-trial decisions. However, the right to bring a pre-trial appeal is circumscribed byss 215, 217 and 218. The decisions listed in those sections from which an appeal maylie do not include a decision by a District Court Judge directing that a chargingdocument must not be accepted for filing under s 26(3).Discussion[10] Rights of appeal in criminal proceedings are governed by the Act and, in theabsence of Mr Crockett being able to point to an avenue of appeal available to himunder the Act, this Court has no jurisdiction to hear an appeal from the District Court'sdecision not to accept a charging document for the purpose of commencing a privateprosecution. A similar issue arose in Mitchell v Tyson, where an unsuccessful applicantattempting to commence a private prosecution sought to appeal the District Court'srefusal to accept her charging documents for filing. In that case, reliance was placedon s 296 of the Act as the relevant provision conferring an appeal right. That provisionprovides: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 appealcourt, appeal under this subpart to that court on a question of lawagainst 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 thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).(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 undersubpart 2.[11] Clark J found that the reliance on this provision fell at the first hurdle becauses 296 is premised on a criminal proceeding having been commenced and a personhaving been charged with an offence. Section 14 of the Act provides that a criminalproceeding in respect of an offence is commenced by the filing of a chargingdocument. It followed that, where no such document had been filed, there can be noproceeding. Because the charging document had not been accepted for filing, it couldnot be said anyone had been charged with an offence. After reviewing the meaning ofthe term "charged" and the varying approaches taken in a number of cases that hadconsidered that issue,3 the Judge concluded:4 whether one is charged at the time a summons is served under s 33 of theCriminal Procedure Act — which I consider to be the correct position — or atsome other point, the fact is that in this case the charging documents were notfiled. Therefore even on an analysis which takes the earliest possible time ofcharging as being when the charging documents are filed, there has been no3 R v Taylor HC Hamilton T66/91, 24 February 1992; R v Lory (No 8) [1997] 1 NZLR 44; and R vGibbons [1997] 2 NZLR 585.4 Mitchell v Tyson, above n 2, at [37].filing and therefore, in terms of s 296 no "person has been charged with anoffence".[12] Despite Mr Crockett acknowledging that rights of appeal in criminalproceedings are governed by the Act, he argued that an appeal should be available andcontended that in the present situation he ought to be able to commence a generalappeal that will enable the appeal court to arrive at its own assessment of the merits ofthe private prosecution. However, Mr Crockett was unable to identify any provisionthat provided him with a right to appeal the District Court's decision. A "generalappeal" is available to a defendant but only to one who is convicted of an offence.5No such appeal is available to a prosecutor who is limited to the prescribed rights ofappeal set down in the Act. His submission that an appeal should be available unlessthere are factors that would make such an appeal inappropriate is simplyunsupportable.[13] Mr Crockett endeavoured to distinguish Mitchell v Tyson on the basis it did notinvolve matters "that would bring the whole justice system into dispute", which Iunderstand he asserts to be the situation in the present case. Similarly, he argued therewas no suggestion in Mitchell v Tyson that any false evidence had been created, as heclaimed is the position here. However, any such attempts to differentiate that case onthe basis of varying factual allegations do not address the requirement on him to bringhis purported appeal within the provisions of the Act. He cannot do so because thereis no right bestowed on an unsuccessful applicant seeking to bring a privateprosecution to challenge a judge's determination that a charging document should notbe accepted for filing.6[14] It is recognised that such decisions can be challenged by way of judicial review.That is the appropriate remedy in this situation, and one the purported defendantsacknowledge is a course available to Mr Crockett.5 Criminal Procedure Act 2011, s 229(1).6 Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR489 at [2] and [36].Result[15] There being no right of appeal available to Mr Crockett under the Act, theCourt is without jurisdiction. It follows that the purported notice of appeal filed byMr Crockett from the District Court's decision is of no legal effect.