BLAKE v THAMES DISTRICT COURT [2022] NZHC 1235

BLAKE v THAMES DISTRICT COURT [2022] NZHC 1235 [1 June 2022]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECIV-2021-419-000068[2022] NZHC 1235UNDER the Judicial Review Procedure Act 2016BETWEEN ROGER WILLIAM BLAKE (AKA LIVINGMAN: ROGER-WILLIAM: HOUSE OFBLAKE)ApplicantAND THAMES DISTRICT COURTFirst RespondentCOMMISSIONER OF POLICE & ORSSecond RespondentsMEDSAFE AND ORSThird RespondentsHearing: 23 May 2022Appearances: Applicant in personJDJ Williams for RespondentsJudgment: 1 June 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on Wednesday, 1 June 2022 at 11 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, Hamilton.Copy to: Applicant.The case[1] Roger William Blake and NZ Water Purifier Ltd1 face charges in theDistrict Court under the Medicines Act 1981. The charges rely, at least in part, onevidence obtained by search warrants. Roger-William has filed a claim seekingjudicial review of the issue of the warrants. The claim is yet to be heard. So,Roger-William seeks a stay of the charges until the claim is determined.[2] Who is Roger-William? Mr Blake calls himself "living man, roger-william,house of blake". Indeed, he denies being Mr Blake because Mr Blake is a "corporateentity", not "a living man".2 Roger-William describes himself as Mr Blake'sbeneficiary, creditor, attorney and "Principal Administrator". To avoid consternation,I refer to Mr Blake as Roger-William.[3] The prosecution—Police and Medsafe—opposes Roger-William's stayapplication and seeks an order striking out some defendants in the judicial reviewclaim.3 Roger-William opposes this application.[4] This judgment determines the strike out and stay applications which, as withthe balance of the litigation, Roger-William conducts without counsel. It alsoaddresses outstanding discovery disputes.The background in brief[5] Roger-William is or was a director of NZ Water Purifier, which conductedbusiness as Ngatea Water Gardens.[6] From 6 July 2020, Police applied for search warrants in relation to7 McMillan Street, Ngatea; and Ngatea Water Gardens, Bratlie Place, Ngatea. Iassume these addresses are Roger-William's home and NZ Water Purifier's premises.41 NZ Water Purifier.2 Somewhat inconsistently, Roger-William filed an "Affidavit of Life" in which he says, "the entityknown as Roger William Blake is in fact the living Roger-William of the house of blake".3 I use the compendious expression "the prosecution" for ease of reference despite this being a civilproceeding.4 The statement of claim does not explain their connection.[7] The applications concerned alleged Medicines Act offending: selling,distributing and advertising new medicines (contrary to s 20); and possession ofprescription medicines absent reasonable excuse (contrary to s 43).[8] The Thames District Court issued search warrants. These were executed15 July 2020.[9] Medicines Act charges were laid against Roger-William and NZ Water Purifier20 December 2020.5[10] Roger-William filed a claim for judicial review in relation to the searchwarrants 1 April 2021. He filed an amended claim 22 June 2021. The latter signalsextensive grounds of challenge to the warrants' issue (but not manner of theirexecution).6[11] Roger-William filed the application to stay the charges 15 February 2022.Law[12] Section 15 of the Judicial Review Procedure Act 2016 reads:Interim orders(1) At any time before the final determination of an application, the courtmay, on the application of a party, make an interim order of the kindspecified in subsection (2) if, in its opinion, it is necessary to do so topreserve the position of the applicant.(2) The interim orders referred to in subsection (1) are interim orders—(a) prohibiting a respondent from taking any further action that is, orwould be, consequential on the exercise of the statutory power:(b) prohibiting or staying any proceedings, civil or criminal, inconnection with any matter to which the application relates:(c) declaring that any licence that has been revoked or suspended in theexercise of the statutory power, or that will expire by the passing of5 Roger-William denies being charged on the basis he is not Mr Blake. If Roger-William is notMr Blake, it is not obvious what standing Roger-William has to seek a stay of the charges againstMr Blake.6 The prosecution sought particulars of the claim, which Roger-William provided 27 August 2021.time before the final determination of the application, continues and,where necessary, that it be deemed to have continued in force.(3) However, if the Crown is a respondent,—(a) the court may not make an order against the Crown under subsection(2)(a) or (b); but(b) the court may, instead, make an interim order—(i) declaring that the Crown ought not to take any further actionthat is, or would be, consequential on the exercise of thestatutory power:(ii) declaring that the Crown ought not to institute or continue anyproceedings, civil or criminal, in connection with any matter towhich the application relates.(4) An order under subsection (2) or (3) may—(a) be made subject to such terms and conditions as the court thinks fit;and(b) be expressed to continue in force until the application is finallydetermined or until such other date, or the happening of such otherevent, as the court may specify.[13] As will be apparent, s 15 enables the Court to stay criminal proceedings ordeclare the Crown ought not continue criminal proceedings. However, the sectionneeds to be understood in the context of the law's approach to challenges to searchwarrants by way of judicial review. The leading case is Gill v Attorney-General.7Dr Gill challenged the Ministry of Health's execution of a search warrant at hispractice. He alleged the Ministry contravened his right to be free from unlawful searchand seizure as protected by s 21 of the New Zealand Bill of Rights Act 1990.[14] The High Court dismissed Dr Gill's claim for judicial review. Hugh Williams Jconcluded, "judicial review is an 'extremely unsatisfactory tool' to make findings onthe manner of applying for and executing search warrants".8[15] The Court of Appeal affirmed. It too held "judicial review action was not theappropriate means of proceeding".9 This because:7 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433.8 Gill v Attorney-General HC Auckland CIV-2008-404-8247, 23 September 2009 at [199].9 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].(a) Judicial review was premature. The criminal investigation was still inits early stages.(b) If charges were laid against Dr Gill, "various opportunities would havearisen to challenge the validity of the warrant and/or its execution eitherbefore any trial or in the course of it".10(c) Even if a search warrant were invalid (or improperly executed),resulting evidence may still be admissible under s 30 of theEvidence Act 2006. The Court noted "all of the examples" in whichjudicial review had been successfully deployed against a search warrant"occurred before the advent of s 30 of the Evidence Act".11(d) "Judicial review will rarely be appropriate when there is a readily-available alternative remedy".12(e) Courts have held "they will only intervene in matters which involve theexercise of investigative power in exceptional cases".13[16] The Court of Appeal concluded "use of the rather blunt instrument ofjudicial review should rarely be permitted to be used to challenge the issue, validityand execution of a search warrant, particularly in the course of an investigation intoalleged criminal offending".14[17] In short, something exceptional is required before a search warrant may bechallenged by way of judicial review.15 Logically, this must also be true when a stayis sought pending such challenge.1610 Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19].11 At [24].12 At [19].13 At [19].14 At [29].15 Dr Gill was required to pay costs uplifted by 100 percent.16 It would be so anyway given the significant interference with criminal process; charges arebrought in the public interest.Argument and analysis[18] Roger-William contends his stay application meets this threshold. I identify,then address, each of the points he raises.[19] First, Roger-William contends a stay is necessary to address the "trespass"committed by the prosecution in executing the warrants, and its subsequent "fraud" inbringing the charges. This argument presupposes a stay is necessary to preserve hisposition in the District Court. The assumption is misplaced for the reasons identifiedin Gill: Roger-William may challenge the validity of the search warrants in theDistrict Court. He may do so either in advance of trial (as a pretrial applicationbrought by the prosecution, directed at these issues), or, at the trial of the charges.17[20] Second, Roger-William submits a stay is necessary because judicial review isthe appropriate vehicle to challenge the warrants. He invites use of this analogy:This matter could be compared to a house being built, and discovery madethat the foundations are compromised due to faulty workmanship andmaterials; an inspector is employed to investigate the foundation [ie, theJudicial Review]; however the contractor [ie, the prosecutor] is crying out toput up the walls and roof regardless; it is clear that putting more time andmoney into installing the walls and roof is unwise until the foundations havebeen verified as satisfactory; otherwise any further building work done wouldneed to be pulled back down again, should the foundation be confirmed asbeing faulty; andIt is therefore not logical to unnecessarily waste further time and resources inthe District Court until the outcome of the High Court Judicial Review isdetermined This submission is merely a restatement of the first. And, as Gill makes plain, thesubmission is back-to-front; the District Court is the conventional forum to addressthe validity of a search warrant.[21] Third, Roger-William seeks a stay on "compassionate grounds". His wife isunwell. She, he says, has had heart surgery. I have no reason to doubt the correctnessof this submission. However, it says nothing about whether the High Court shouldreview the warrants, and nothing about the related contention of a stay.17 Criminal Procedure Act 2011, ss 78–80.[22] Fourth, Roger-William says he has expended much time and energy preparinghis judicial review claim. Aside from the point this was presumably true of Dr Gill,this contention also says nothing about whether there should be a stay.[23] Fifth, Roger-William contends he should have a stay because the prosecutionought be taken as having accepted the warrants were improperly issued.Roger-William filed and served an affidavit described as an "Affidavit of Truth". Hesaid the prosecution had not responded to this affidavit, and, therefore, it hadacknowledged its "guilt" in relation to the search warrants.18 This submission:(a) Overlooks the absence of a timetable direction requiring a response tothe affidavit.(b) Presupposes an unanswered affidavit in this context necessarilyconstitutes an acceptance of the other side's evidence. No suchprinciple exists.[24] Sixth, Roger-William argues that at the District Court case review hearing on22 February 2022, Judge Marshall accepted the prosecution should be stayed pendingdetermination of the judicial review claim. In response, Mr Williams for theprosecution contends Judge Marshall said no more than that hearing should awaitdetermination of the stay application. It is not necessary to analyse the Judge'sremarks because determination of a stay application is the exclusive responsibility ofthis Court; s 4 of the Judicial Review Procedure Act 2016 defines "court" as meaning"the High Court of New Zealand". So, even if the Judge said a stay should beordered—which is unlikely given what follows—that says nothing about what thisCourt should do.[25] Seventh, Roger-William contends delay supports his case for a stay,particularly as he has "been given the run around by the courts", and the delay is"fishy". Roger-William says he first applied for a stay of the charges 27 August 2021,by email. He says the High Court Registry told him, by reply email, he needed to18 Roger-William advances the same point in relation to the prosecution's statement of defence. Thisoverlooks the denials in that pleading.apply to the District Court for a stay, but it would send the application to the (Thames)District Court for that Court to determine. Roger-William says Judge Marshall raisedthe stay application at the case review hearing; and told him the District Court did nothave the power to stay the charges under the Judicial Review Procedure Act.Roger-William says he then filed the stay application in question. But by then, sixmonths had passed.[26] The delay is unfortunate, particularly as it might have been caused, or at leastcontributed to, by the Registry. However, there is nothing "fishy" about it; this is plainfrom the narrative provided by Roger-William. More importantly, the delay does notsupport a stay. That it has taken more time to reach this point than it should saysnothing about whether a stay should be granted.[27] Roger-William does not argue a stay is appropriate because his judicial reviewclaim is especially strong, or that the warrants are self-evidently invalid. Thesecontentions may be thought more orthodox than the arguments actually raised insupport of a stay. I have, however, considered these contentions (as best I can).Determining the strength of the claim is difficult because (a) Roger-William has filedan extraordinary amount of paper; (b) multiple grounds of challenge exist; and (c) theevidence remains incomplete. Nothing stands out to require this Court's interventionby way of stay. The various grounds of challenge are the types of challenge routinelydetermined by District Courts up and down the country when assessing theadmissibility of evidence obtained by warrant. And, the warrants are not self-evidentlyinvalid.[28] I have also considered whether anything else about the case supports a stay inlight of Gill. Nothing emerges.[29] To recapitulate, the law sets its face against judicial review of a search warrantabsent exceptional circumstance. So too, necessarily, a stay in the interim.Roger-William's arguments for a stay fall well short of the threshold. Nothing elseappears to support one.Strike out[30] Roger-William's judicial review claim is primarily against Police, Medsafe,and the Thames District Court (as warrant issuer). I say "primarily" because the claimalso names nine other defendants: Matthew Rawson; Ken McGillivray;Christopher Smith; Mark Soffe; Kristal Brooker; Simon Everson; Nicola Squire;Simon Williamson and Chris James.[31] The prosecution applies to strike these defendants from the claim on thegrounds they personally exercised no statutory power and should not be before theCourt.19 One example should suffice. Matthew Rawson is a Police officer. He, assuch an officer, applied to the Thames District Court for at least one of the challengedsearch warrants.20 The claim, however, sues Mr Rawson in his personal capacity.Moreover, Constable Rawson's actions are, in law, those of the Police Commissioner,and the claim already extends to Police by naming the Commissioner. So,Mr Williams contends, Matthew Rawson and the other eight defendants should beremoved from the claim. No action lies against them personally, and they could serveno useful purpose as defendants.[32] Roger-William argues otherwise. He says Police and Medsafe are not theprimary defendants because the search warrants were obtained by "a living man" andexecuted "by living men and women". He also contends "we are too far down thetrack" to remove these defendants from the claim.[33] The latter is not dispositive because the judicial review claim is still to be heard.The former is correct as a matter of fact but inconsequential at law. Striking thesedefendants from the claim will not prejudice the claim in any way; the relevant legalactors—the Thames District Court, Police and Medsafe—remain as defendants.Moreover, strike out is appropriate for the reasons identified by Mr Williams.19 Under r 15.1(1)(a) of the High Court Rules 2016 and s 14(2)(b)(ii) of the Judicial ReviewProcedure Act 2016.20 Holding the rank of Detective Sergeant.Outstanding discovery disputes[34] Concerns about discovery were voiced at telephone conferences.On 24 February 2022, and with everyone's agreement, Gault J directed these beresolved on the papers. These I have read.[35] Five things or categories are in issue:(a) An unexecuted search warrant issued 6 July 2020.(b) Correspondence between Medsafe and Police leading to the warrantapplications.(c) Potentially privileged documents.(d) Documents regarding Genelle Pemberton(e) True and correct certified copies.The issued but unexecuted warrant[36] Mr Williams contends the prosecution should not have to discover this as it isirrelevant. He contends "the focus" of the judicial review claim concerns the laterexecuted warrants.[37] The claim asserts all search warrants were wrongly issued. That this warrantwas not executed does not diminish its relevance. It must, therefore, be given toRoger-William. So too if it has not already, the application for the warrant.(b) Correspondence between Medsafe and Police leading to the warrantapplications.[38] Mr Williams acknowledges this material is potentially relevant to thejudicial review claim. However, he contends the prosecution need not discover itbecause it has successfully resisted disclosure of the same material in the District Courtin reliance on s 16(1)(c)(ii)(B) of the Criminal Disclosure Act 2008.[39] The section is not an obvious fit. It concerns "a communication dealing withmatters relating to the conduct of the prosecution". The correspondence's genesis isthe investigation; it was created before the prosecution commenced. But, otherprovisions of the Criminal Disclosure Act may be applicable, as may s 69 of theEvidence Act. The submissions do not address these provisions.[40] I direct:(a) Mr Williams to provide further submissions on this category on orbefore 15 June 2022. The submission must not exceed 10 pages.(b) Roger-William to respond on or before 29 June 2022. The submissionmust not exceed 10 pages.Potentially privileged documents[41] Section 146 of the Search and Surveillance Act 2012 provides that if a personexecuting a search warrant is unable to search a thing because it may be privileged,the searcher may secure the thing, copy it, and deliver the thing or copy to a court toenable a Judge to determine whether the thing is privileged. I gather this procedurewas used here.[42] Roger-William appears to believe this means the prosecution is withholdingdocuments from him that may support his judicial review claim. This overlooks thatthe documents are likely Roger-William's or NZ Water Purifier's, and that anything inthis category was seized in the search; not created in support of the warrantapplications. Consequently, this category is irrelevant to whether the warrants werevalidly issued. Documents within it need not be given to Roger-William.Documents regarding Genelle Pemberton[43] The prosecution contacted Ms Pemberton after the warrants were executed onthe assumption she may have evidence to give in relation to the charges.Roger-William makes wide-ranging arguments the prosecution should discoverrelated documents, including that he is "a child of God entitled to justice". Noneaddress bedrock considerations of relevance.[44] Documents ala Ms Pemberton lack relevance to whether the warrants werevalidly issued. These need not be given to Roger-William either.True and correct certified copies[45] This category arises because Roger-William contends the prosecution hasfailed in its discovery obligations by not providing true and correct certified copies ofevery document. There is no obligation on the prosecution to do so.Some final observations[46] Judicial review of a search warrant is an exceptional step. I invite the partiesto reflect on its desirability in this case. Everything Roger-William wishes to argueabout the search warrants may be argued in the District Court as part of the routinecriminal processes of that Court. If the District Court concludes the warrants areinvalid it may, subject to s 30 of the Evidence Act, exclude all resulting evidence. So,Roger-William does not need to bring a judicial review claim to protect his rights inrelation to the warrants.[47] Another point should be made clear. Even if Roger-Williams succeeds in theHigh Court on judicial review, that would not preclude the District Court fromadmitting all of the evidence under s 30 of the Evidence Act. In short, the judicialreview claim adds nothing obvious to this case beyond time, expense and delay.[48] It may be open to the prosecution to apply to dismiss the judicial review claimon the basis it discloses no reasonably arguable prospect of success.Result[49] The application for a stay is dismissed. (This means the charges may beprogressed in the District Court).[50] In relation to discovery:(a) Further submissions are required concerning the correspondencebetween Medsafe and Police in accordance with the timetable at [40].(b) The prosecution must discover the issued, unexecuted search warrant(and related application if has not done so already).(c) The prosecution need not discover the remaining things or categoriesas sought by Roger-William.[51] Costs are reserved...Downs J