STEVENSON v OFFICE OF POLICE COMMISSIONER [2015] NZHC 1408

STEVENSON v OFFICE OF POLICE COMMISSIONER [2015] NZHC 1408 [22 June 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-175[2015] NZHC 1408UNDER the Judicature Amendment Act 1972IN THE MATTER of an application for judicial review ofPolice Commissioner's duty under s 20(2)of IPCA Act 1988BETWEEN ROBERT ALFRED STEVENSONPlaintiffAND OFFICE OF POLICE COMMISSIONERDefendantHearing: 10 June 2015Appearances: Plaintiff in person (via AVL)A Todd for DefendantJudgment: 22 June 2015JUDGMENT OF BREWER JThis judgment was delivered by me on 22 June 2015 at 4:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors: Crown Law (Wellington) for DefendantCopy to: Plaintiff in personIntroduction[1] The Crown applies to strike out a judicial review proceeding brought by Mr Stevenson.1[2] Mr Stevenson is a prisoner. He is serving a lengthy sentence for sexually abusing a teenage girl. He is doing his best to have his convictions overturned. In May 2013, the Court of Appeal dismissed his appeal2 and in August 2013 dismissed his application to recall its judgment.3 A second application to recall the judgment was heard in April 2015. The Court of Appeal gave its decision in June 2015 declining the application.4[3] As part of his campaign, Mr Stevenson complained to the Police and to theIndependent Police Conduct Authority ("IPCA") about aspects of the Policeinvestigation and his trial. The Police and the IPCA rejected his complaints. On 30 January 2015, Mr Stevenson filed judicial review proceedings against the "Office of Police Commissioner" alleging that the Police failed to comply with s 20(2) of the Independent Police Conduct Authority Act 1988. This section imposes a duty on the Commissioner to report to the IPCA on the Police investigation of a complaint. Subsection (2) provides:When reporting to the Authority under this section, the Commissioner shall supply to the Authority accompanying material sufficient to enable the Authority to assess the adequacy of the Police investigation.[4] Mr Stevenson's case is based on his assertion that the Police did notinvestigate his complaint in any real way and accordingly did not supply to the IPCA material sufficient to enable it to assess the adequacy of the investigation.51 The appropriate Crown defendant is the Attorney-General and not, as currently, the "Office of Police Commissioner". Ms Todd of the Crown Law Office appeared on the application. I havethe power to substitute the Attorney-General as defendant if that is necessary.2 [Citation redacted]3 [Citation redacted]4 [Citation redacted]5 Mr Stevenson's case is really about what he sees as the lack of response by the Police to hiscomplaint. He has framed his case by reference to s 20(2), which I do not think is particularlyapt. I will consider the gravamen of Mr Stevenson's case and if it can survive by re-pleading then I will take that into account.[5] The Crown does not want Mr Stevenson's application for judicial review toproceed. In its view, Mr Stevenson's claim is an abuse of process and/or disclosesno reasonably arguable cause of action or case appropriate to the nature of the pleading.Judicial review[6] Judicial review is a remedy invented by judges to restrain the excess or abuse of public power.6 The remedy allows judges to oversee the decision-making actions of administrative agencies in order to determine whether their decisions are lawful and to award relief where appropriate. Judges will intervene where decision-makers misconstrue their statutory powers,7 commit procedural errors,8 act unreasonably9 or contravene fundamental rights and values that underpin the rule of law.10 The remedy is discretionary: the determination by the Court whether to set a decision aside or not depends on an overall evaluation of the circumstances rather than clear and absolute rules.11Strike out jurisdiction[7] Rule 15.1 of the High Court Rules contains two broad grounds on which strike out may be sought. A Court may strike out all or part of a claim if:(a) it discloses no reasonably arguable cause of action;12 or(b) it amounts to an abuse of process.136 R v Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 (HL) at 715 per Lord Templeman.7 Unison Networks Ltd v Commerce Commission [2007] NZSC 74, [2008] 1 NZLR 42 at [51]- [55].8 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.9 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 230 (per Lord Greene MR).10 See, for example, Wolf v Minister of Immigration [2004] NZAR 414 (HC) at [47]-[48].11 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at 4.12 High Court Rules, r 15.1(1)(a).13 Rule 15.1(1)(b)-(d).No reasonably arguable cause of action[8] The Court's approach under this ground is well established. It can be summarised as follows:14(a) The facts pleaded in the statement of claim are assumed to be true. But the Court is not required to accept entirely speculative facts.(b) The causes of action must be so clearly untenable that they cannot possibly succeed.(c) The jurisdiction is to be exercised sparingly and only in a clear case where the Court is satisfied that it has the requisite material.(d) Jurisdiction to strike out is not excluded by the need to decide difficult questions of law that require extensive argument.(e) The Court should be particularly slow to strike out a claim in any developing area of the law.Abuse of process[9] The Court exercises its strike out jurisdiction under this ground where the pleading is likely to cause prejudice or delay,15 is frivolous or vexatious16 or is otherwise an abuse of the process of the Court.17 This ground requires an element ofimpropriety and misuse of the Court's processes.18 Again the jurisdiction to dismiss the proceeding under these grounds should only be used sparingly. If the defect in the pleadings can be cured, then the Court will normally order an amendment of the statement of claim.1914 Attorney-General v Prince and Gardiner [1998] 1 NZLR 262 (CA) at 267, endorsed by the Supreme Court in Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].15 High Court Rules, r 15.1(1)(b).16 Rule 15.1(1)(c).17 Rule 15.1(1)(d).18 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89].19 Above.[10] It is an abuse of process when a plaintiff initiates court proceedings in order to mount a collateral attack on a final decision against the plaintiff made by another Court in previous proceedings in which the plaintiff had a full opportunity to contest the decision in the court by which it was made.20 The rule applies even when the parties to the earlier and later proceedings are not identical.21 It reflects the principle of finality in litigation. That principle places limits on the right of citizens to open or reopen disputes. As Ms Todd for the Crown correctly identifies, the principle requires every member of society, for the good of society as a whole, to accept the outcome of the legal process after exhausting their rights of appeal, whether they believe the final outcome to be right or not.22 There are, however, safeguards that prevent this principle from creating unjust results. It will not be applied where it would create a miscarriage of justice.[11] An abuse of process can also take the form of duplication of proceedings. So, it is an abuse of process for a plaintiff to bring a second action before the Court covering the same subject matter as his first action where the judgment is yet to be delivered in relation to the first action.23The nature of Mr Stevenson's case[12] Mr Stevenson complained about the actions of police officers, Crown prosecutors, his trial counsel and three Judges of the Court of Appeal. For this application, only the complaints against the police officers are relevant.[13] Mr Stevenson complained to the Police and the IPCA that a medical witness who gave evidence at his trial for the Crown on the apparently normal state of thecomplainant's genitalia was not advised that the complainant had told Police that shewas raped by Mr Stevenson on hundreds of occasions.24 In Mr Stevenson's20 Hunter v Chief Constable of West Midlands Police & Anor [1981] 3 All ER 727 (HL) at 737 (per Lord Diplock) cited with approval by Tipping J in Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [166].21 See, for example, Rabson v Attorney-General [2013] NZHC 1018 at [17].22 The Ampthill Peerage Case [1977] AC 547 (HL) at 569 (per Lord Wilberforce) and 576 (per Lord Simon) cited with approval by the New Zealand Court of Appeal in R v Smith [2003] 3 NZLR 617 (CA) at 630.23 See, for example, Buckland v Palmer [1984] 3 All ER 554 (EWCA); Otis Elevator Co Ltd v Linnell Builders Ltd (1991) 5 PRNZ 72 (HC).24 I have not seen the trial transcript. For the purposes of this judgment, I take Mr Stevenson'ssubmission on this point at face value.complaint, he alleged that the Detective Sergeant in charge of the prosecution case deliberately refrained from disclosing this information to the medical witness because if he did the witness would have concluded that the allegations made by the complainant were false.[14] The second limb of the complaint relates to evidence that Mr Stevenson says he expected to be given on his behalf at his trial by a representative of Child, Youthand Family Services ("CYFS"). I do not need to go into detail. Mr Stevenson'spoint is that the witness did not give evidence and following a question by the jury during its deliberations, the prosecutor said that she would make inquiry of the officer-in-charge of the case to see whether CYFS had any material which might be used to answer the question. Mr Stevenson's complaint is that the DetectiveSergeant told the prosecutor there was no CYFS evidence or otherwise conspired with the prosecutor to keep the evidence secret.[15] By letter dated 12 January 2015, the IPCA told Mr Stevenson:The Authority maintains the view that most of your complaint has either been addressed or is able to be addressed in court. Allegations (a) and (b) have been expressly subject to judicial scrutiny in the Court of Appeal, and they have been dismissed.25 You have pointed out crucial evidence for both allegations (a) and (b) which you say the Court of Appeal has missed. This appears to be squarely within the realm of an appeal to the Supreme Court. Similarly, allegation (c) does not establish Police misconduct and could be determined at court.26[16] The IPCA went on to say:The Authority has expended considerable resources in reviewing your material and in phone conversations with you. No Police misconduct or conspiracy has been established regarding your depositions, your trial and your subsequent appeals. In taking the initial decision to decline to takefurther action on your complaint, the crux of the Authority's reasoning wasthat your complaint is a matter for the courts, not that the Police were seeking a legal opinion.27 This decision stands.25 Allegation (a) was the allegation that the medical witness was not properly informed. Allegation(b) was the complaint against Mr Stevenson's defence counsel.26 Allegation (c) was the allegation relating to the CYFS evidence.27 Shortly after Mr Stevenson made his complaint, a police officer said that a legal opinion on the complaint would be sought. This intention was countermanded by a more senior police officer. Mr Stevenson took exception to that.[17] The crux of Mr Stevenson's case is that against the statutory obligation ins 20, all the Police did was express an opinion. He refers to a letter dated 18 November 2014 to him from a police officer as follows:You have made various written complaints to the Independent Police Conduct Authority (IPCA).Your complaints concern the actions of everyone involved in your prosecution and subsequent convictions.The IPCA exercised its discretion under the IPCA Act 1988 and subsequently referred your complaint back to the Police for investigation.After Inspector CARR, Professional Conduct Manager from Waitemata District corresponded with you, I was assigned to look at any criminal liability involved with Auckland City District staff.I corresponded with you on 8th July 2014 and also recently spoke to you on the phone.There is no criminal conspiracy against you and no criminal liability in relation to the various people involved in your prosecution, i.e. Police, Court staff and Counsel.These matters were traversed by the Court of Appeal and dismissed.Please find enclosed your handwritten complaint file and letters. The Police Complaint file has a scanned copy of your file.The matter is closed and no further correspondence will be entered into.[18] Mr Stevenson submits that in order to properly determine his complaint, the Police, at least, should have interviewed the medical witness to ascertain what she had been told about the allegations of the complainant. Further, the Police should have found out what the prosecutor had been told by the Police as to the existence of CYFS evidence.Discussion[19] The main argument for the Crown is that Mr Stevenson's proceeding issimply a collateral attack on decisions of the Court of Appeal made in its criminal jurisdiction in proceedings to which Mr Stevenson was a party. As such, it is an abuse of the process of the Court.[20] I accept that the complaints which I have described above relate to matters which have been adjudicated by the Court of Appeal. I accept also that Mr Stevenson's intention in making his complaint was to set in train a process thathe hoped would uncover evidence which would lead to his convictions being overturned. I do not see that this alone means that an application by him for judicial review of the decisions taken by the Police regarding his complaint necessarily amounts to an abuse of process.[21] Ms Todd for the Crown submits that where the subject-matter of complaints have been determined against the complainant by the Court of Appeal, then neither the Police nor the IPCA need devote further resources to investigating the complaint. I do not accept that as a blanket proposition.[22] The IPCA is an independent body that considers complaints against the Police and oversees their conduct.28 Its functions are:(a) to receive complaints alleging misconduct or neglect of duty by any member of Police or concerning any Police practice, policy or procedure affecting a complainant.29(b) to investigate incidents in which a member of Police acting in the execution of his or her duty causes, or appears to have caused death, or serious bodily harm.30[23] The Police and the IPCA are under a reciprocal obligation to notify each other of every complaint that they receive.31 When either body receives a complaint, the IPCA can, inter alia, investigate the complaint or refer it to the Police.32 The IPCA has the same powers as a Commission of Inquiry. It can summon witnesses and gather evidence.33 The Police are required to provide all information and28 Independent Police Conduct Authority Act 1988, s 4AB.29 Section 12.30 Section 13.31 Sections 15 and 16.32 Section 17.33 Sections 23-26assistance needed for the IPCA to carry out its functions.34 When the Police conduct an investigation of a complaint they must report to the IPCA about whether the complaint has been upheld, and if so, what action has been taken to rectify the matter.35 As stated earlier, when reporting the Police must supply to the IPCA accompanying material sufficient to enable it to assess the adequacy of the Police investigation.36[24] Once the IPCA completes its investigation, it must determine whether any Police act or omission was contrary to law, unreasonable, unjustified, unfair, or undesirable.37 The IPCA must inform the Police of its findings, and can make recommendations, which may include that disciplinary or criminal proceedings be considered or instituted.38 The IPCA can release public reports on its investigations, in the public interest or in the interests of any person.39 But the IPCA cannot itself lay charges or take disciplinary action.40 If the ICPA is not satisfied with the Police response to its recommendations, it must inform the Attorney-General and the Minister of Police. The Attorney-General must in turn inform Parliament.41[25] An appellate Court will quash a criminal conviction where Police misconduct or neglect of duties, either before or during a trial, create a miscarriage of justice.42This means that, on occasion, a complaint to the IPCA and a decision of an appellate Court will be directed at the same subject-matter. Such occasions do not permit the IPCA to abdicate its statutory function as a watchdog over the Police. If they did, serious injustice to criminal defendants could result. I can, for example, envisage a case where a prisoner has exhausted all appeal avenues where the central ground of appeal was that a police officer gave perjured evidence. If, subsequently, corroborating material became known to the prisoner then he should be entitled to make a complaint to the Police and to the IPCA and the existence of decisions of the higher Courts could not be used as a reason for failing to investigate the new34 Section 21.35 Section 20(1).36 Section 20(2).37 Sections 27(1) and 28(1).38 Section 27(2) and 28(2).39 Section 34.40 Section 27.41 Section 29.42 Criminal Procedure Act 2011, s 232.material. In such a case the safeguards within the principle of finality must be triggered to prevent the complaint from being classified as an abuse of process.[26] However, the present proceeding is not such a case. There is no new material, and the specific allegations made by Mr Stevenson have been considered by the Court of Appeal. In my view, the Police and the IPCA were entitled to regard the examination of the allegations by the Court of Appeal to be determinative of Mr Stevenson's complaint. In any event, the Court of Appeal has again consideredand dismissed Mr Stevenson's claims. Accordingly, to proceed with the judicial review application would be an abuse of the process of the Court and, further, on this analysis there is no reasonable cause of action disclosed.Decision[27] The Commissioner's application succeeds. Mr Stevenson's proceeding isstruck out.Costs[28] Given Mr Stevenson's status as a prisoner, I am inclined to let costs lie wherethey fall.[29] I reserve leave to counsel for the Crown to file and serve submissions to the contrary by 6 July 2015. If no submissions are received by that date, costs will lie where they fall.________________________________Brewer J