S v THE ATTORNEY-GENERAL [2022] NZHC 2992

S v THE ATTORNEY-GENERAL [2022] NZHC 2992 [17 November 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2022-404-851[2022] NZHC 2992UNDER The Judicial Review Procedure Act 2016IN THE MATTER OF Judicial Review of the decision to committhe applicant to trial in the District CourtBETWEEN SApplicantAND THE ATTORNEY-GENERALFirst RespondentTHE AUCKLAND DISTRICT COURTSecond RespondentHearing: 13 October 2022Appearances:Further submissionsand evidencecompleted:The applicant in personZ Hamill and B So for the Respondent16 November 2022Judgment: 17 November 2022JUDGMENT OF POWELL JThis judgment was delivered by me on 17 November 2022 at 4pm.Pursuant to Rule 11.5 of the High Court Rules...Registrar/Deputy RegistrarSolicitors:Crown Law, Te Tari Ture o Te Karauna, WellingtonCopy:Legal Documents Officer, Auckland South Correctional facility, Auckland[1] The Attorney-General has applied to strike out judicial review proceedingsbrought by the applicant.1 The Attorney-General contends that the applicant'sproceedings, which ostensibly seek to review a 2008 decision of Judge D A Burnscommitting the applicant to trial for sexual offending,2 are an abuse of process andconstitute a collateral attack on earlier decisions of the High Court, Court of Appealand Supreme Court that have previously determined the issues the applicant nowwishes to raise.The applicant's proceedings[2] The applicant denies he is attempting to re-litigate matters already determinedby other Courts and argues that Judge Burns erred in committing him to trial by:Allowing admission of the evidential video interview of the complainantbecause she did [not] take an oath or make an affirmation during the interview.("the committal issue")[3] As a result, the applicant "requests a reconsideration of the decision to commithim to trial". In the applicant's submission if the committal decision is set aside thiswould mean his trial was invalid and as a result his conviction would also have to beset aside.[4] Although no additional specific relief appears to have been pleaded, theapplicant's statement of claim is not limited to a challenge to Judge Burns' committaldecision. Instead, throughout the statement of claim and in his submissions on thestrike-out application the applicant frequently segues into other allegations. Inparticular, and in addition to the committal issue, the applicant variously alleges:(a) The medical evidence at trial was incorrect and misled the jury as aresult of neither the Crown nor defence experts understanding the scaleof the rape allegations made by the complainant ("the medical evidenceissue").1 Reference to the applicant's name has been removed throughout this judgment due to the natureof the offending, where s 139 of the Criminal Justice Act 1985 applies, as well as the extensivelitigation history where publication of the applicant's name may lead to identification of thevictim.2 Police v [S] DC Waitakere CRN 0809003987-3991, 26 November 2008.(b) Trial counsel errors including:(i) Failing to establish the scale of the rape allegations;(ii) Failing to call a witness from CFYS and/or to produce the CFYSfile that would have corroborated the applicant's evidence;and/or(iii) Failing to cross-examine adequately, including the complainantand Crown medical expert.("the trial counsel issues").Legal principles[5] There is no dispute as to the relevant principles applicable to the application tostrike out. As Ms Hamill summarised, the position is:Rule 15.1(1) of the High Court Rules 2016 (Rules) provides that this Courtmay strike out all or part of a pleading if it discloses no reasonably arguablecause of action, defence or case appropriate to the nature of the pleading; islikely to cause prejudice or delay; is frivolous or vexatious; or is otherwise anabuse of the process of the court.The principles underpinning the power to strike out are well known. A causeof action must be so clearly untenable that it cannot possibly succeed. A claimmust be "so certainly or clearly bad" that it should be precluded fromproceeding.This power will be sparingly exercised; if defective pleadings can be cured,an amended statement of claim is the preferred approach.For a court to strike out a proceeding for being an abuse of process, thereneeds to be an element of impropriety and misuse of the Court's processes.Since Hunter v Chief Constable West Midlands, it has been recognised thata proceeding may constitute an abuse of the process of the Court if itchallenges a judgment entered in another proceeding, even if the parties ineach proceeding were not identical, which would have been required for aplea of estoppel.Lord Diplock in Hunter said:The abuse of process which the instant case exemplifies is theinitiation of proceedings in a court of justice for the purpose ofmounting a collateral attack upon a final decision against theintending plaintiff which has been made by another court ofcompetent jurisdiction in previous proceedings in which theintending plaintiff had a full opportunity of contesting thedecision in the court by which it was made.(footnotes omitted)Discussion[6] As Ms Hamill has pointed out on behalf of the Attorney-General, the currentproceedings are the latest in a long line of litigation undertaken by the applicant withthe intention of challenging his conviction. Having reviewed that history and theprevious decisions of this Court, the Court of Appeal and the Supreme Court I am leftin no doubt whatsoever that the issues the applicant seeks to raise have already beenconsidered and as a result it would be an abuse of process to allow the present judicialreview proceedings to continue.Previous litigation[7] After being committed for trial by Judge Burns, the applicant was found guiltyby a jury on four charges of sexual violation by rape (two representative) and threecharges of sexual violation by unlawful sexual connection (one representative). Hewas sentenced by Judge J P Gittos to 16 years' imprisonment with a minimum periodof imprisonment of 10 years.3[8] The initial challenge undertaken by the applicant was an appeal againstconviction, heard by the Court of Appeal in 2013. Six separate grounds were raised,all involving trial counsel error, including the trial counsel issues set out above. TheCourt of Appeal dismissed the applicant's appeal ("the conviction appeal judgment"),concluding there was no substance in any of the issues advanced.43 R v [S] DC Auckland CRI-2008-090-003508, 18 May 2010.4 S (CA361/2010) v R [2013] NZCA 179 ("the conviction appeal judgment").[9] The applicant did not immediately seek leave to appeal to the Supreme Court.Instead, he applied to revisit the conviction appeal judgment on the basis of a failureof trial counsel to call the CYFS witness and the failure of trial counsel to dealadequately with the medical evidence. The application was treated by the Court ofAppeal as an application for recall and dismissed.5[10] The applicant then brought the first in a series of habeas corpus applications.This was rejected by the High Court.6 Faire J noted that if the applicant wished tochallenge the conviction appeal judgment the appropriate avenue was an appeal to theSupreme Court.7[11] A further application for habeas corpus however followed and was rejected onthe grounds that the applicant was lawfully detained.8 An appeal to the Court ofAppeal against the decisions declining habeas corpus and a decision declining toentertain further applications for habeas corpus followed, in which the applicantcontinued to rely upon the issue of the failure of trial counsel to call the CYFS witnessand the medical evidence issues, and was also dismissed by the Court of Appeal.9[12] Undeterred, the applicant unsuccessfully sought leave to appeal the Court ofAppeal judgment on the habeas corpus issues to the Supreme Court. Dismissing theapplication for leave to appeal, the Supreme Court noted that the applicant'sapplication for habeas corpus "although dressed up as a challenge to the conduct ofthe judges who sat in the Court of Appeal, is in effect a challenge to the convictions".10A subsequent application for the Supreme Court to recall its decision was alsodismissed.11[13] Around the same time the applicant initiated the first judicial reviewproceedings. In determining one of these in early 2015, Courtney J referred to anearlier determination by Ellis J in December 2014 which had noted that "any defects5 S (CA361/2010) v R [2013] NZCA 359.6 S v Chief Executive of the Department of Corrections [2014] NZHC 1157.7 At [13].8 [S] v Attorney-General [2014] NZHC 1232.9 [S] v Chief Executive of the Department of Corrections [2014] NZCA 308.10 [S] v Chief Executive of the Department of Corrections [2014] NZSC 120 at [5].11 [S] v Chief Executive of the Department of Corrections [2014] NZSC 128.in the pre-trial process [alleged by the applicant] would have been cured by thesubsequent trial and, in any event, the application was a thinly disguised collateralattack on the outcome of the trial".12[14] The applicant then returned once more to seek recall of the conviction appealjudgment, and also sought bail pending the determination of that application. Bothapplications were ultimately declined,13 the Court of Appeal noting in relation to thesecond recall application that the applicant was once more seeking to revisit the failureto call the CYFS officer and the medical evidence issues, as well as raising issues withappellate counsel.14 The applicant was also unsuccessful in attempting to appeal thedecision of Courtney J which, given it raised essentially the same issues as the secondapplication for recall, was found to be an abuse of process.15[15] A further judicial review proceeding followed. Brewer J dismissed theapplication because "the specific allegations made by [the applicant] have beenconsidered by the Court of Appeal", and "to proceed with the judicial reviewapplication would be an abuse of the process of the Court and, further, on this analysisthere is no reasonable cause of action disclosed".16[16] The applicant then filed a third unsuccessful application to recall the convictionappeal judgment. It was accepted by the applicant that his application raised nothingnew, and the Court therefore concluded "he is seeking to relitigate matters that havealready been comprehensively settled in this Court", and that "his third recallapplication is an abuse of process".17 Subsequent applications to recall the convictionappeal judgment for a fourth, fifth and sixth time were also categorised as furtherabuses of process and the Court of Appeal Registry was directed not to accept any ofthem for filing.1812 [S] v Auckland District Court CIV-2008-090-003508, 8 January 2015 at [5].13 S (CA361/2010) v R [2015] NZCA 109 in relation to bail and S (CA361/2010) v R [2015] NZCA259 on the second recall application.14 At [14]–[15].15 S (CA34/2015) v Auckland District Court [2015] NZCA 110 at [9].16 [S] v Office of Police Commissioner [2015] NZHC 1408 at [26].17 S (CA361/2020) v R [2015] NZCA 358 at [5].18 [S] v R CA361/2010, 19 August 2015 (Minute of White J); 15 March 2016 (Minute of French J);and 1 September 2021 (Minute of French J).[17] Likewise, and despite the conclusion reached by Brewer J, the applicant fileda further set of judicial review proceedings in which he again sought to revisit themedical evidence issues. As Asher J noted, once again no new material was provided:the applicant having "just regurgitated the same allegations he has previously made"in order to sidestep the appeal process that he has exhausted.19 As a result his Honourconcluded the applicant's actions were "a very blatant abuse of the procedure of thisCourt", as well as a collateral challenge to the judgment of Brewer J.20 Theproceedings were therefore struck out.21[18] It was not until 2017 that the applicant finally sought leave to appeal theconviction appeal judgment to the Supreme Court. In its judgment the Supreme Courtaccepted that an extension of time to apply for leave to appeal should be granted,22 butconcluded that the substantive issues raised with regard to the medical evidence issuesdid not provide "a basis for apprehension that a substantial marriage of justice hasoccurred".23 The application for leave to appeal was therefore dismissed.[19] A second application for leave to appeal followed in 2021. As his firstapplication had been dismissed, the Supreme Court treated the second as anapplication to recall the 2017 judgment.24 At that point five issues were raised by theapplicant:25(a) the medical opinion evidence adduced at trial was incorrect and misledthe jury;(b) trial counsel failed to call a crucial defence witness and also failed tointroduce evidence that corroborated the applicant's evidence;(c) the Court of Appeal should not have accepted trial counsel's evidenceon the applicant's claim of inadequate representation by trial counsel;19 [S] v Independent Police Conduct Authority [2016] NZHC 1571 at [30].20 At [32].21 At [41].22 S (SC39/2017) v R [2017] NZSC 169 at [9].23 At [11].24 S (SC39/2017) v R [2022] NZSC 7 at [2].25 At [4].(d) the Crown failed to follow up on evidence that would have corroboratedthe applicant's statements in evidence; and(e) the deposition Judge erred in allowing admission of the evidential videointerview of the complainant because she did not take an oath or makean affirmation during the interview.[20] Addressing these issues, the Court determined:26[The applicant's] application does not meet the high threshold for a recall.Most of the arguments that [the applicant] advances have been thoroughlydealt with in the decision of the Court of Appeal or the 2017 judgment of thisCourt, or both. Any errors alleged are peripheral and would not have affectedthe outcome of the trial. [The applicant's] application is largely an attempt torelitigate matters already determined by this Court. There is no risk of amiscarriage of justice.[21] Finally (at least to date), in May 2022 the applicant sought a further recall ofthe 2017 Supreme Court leave judgment again raising issues around the trial counselissues including the failure to adequately cross-examine the complainant and/or toobtain the CYFS file. Dismissing that application, the Supreme Court noted:27[The applicant's] current application for recall essentially raises the samegrounds raised in his previous recall application. Those have already beenconsidered and rejected by this Court.The present proceedings[22] As the foregoing narrative makes clear, all issues with regard to the medicalevidence issue and the trial counsel issues have all been comprehensively determinedagainst the applicant from the conviction appeal judgment onwards. To continue toraise these issues, as has been consistently noted, is an abuse of process.[23] It is equally clear that the centrepiece of the present proceedings, the committalissue, has also been definitively determined and, as with the other issues, it is an abuseof process to seek to revisit it under of the guise of the present judicial reviewproceedings.26 At [7].27 S (SC39/2017) v R [2022] NZSC 57 at [3].[24] As noted, while it is clear that the committal issue was not raised by theapplicant in his conviction appeal to the Court of Appeal, it does appear that pre-trialissues were first raised and discussed as early as 2015, as part of judicial reviewproceedings considered by Ellis J,28 and have in any event been considered by theSupreme Court in both of the Supreme Court recall judgments. It is not tenable forthe applicant to submit that the Supreme Court analysis was limited only to the matterspreviously determined by the Court of Appeal and that the committal issue wastherefore ignored, a conclusion that is only reinforced by the second Supreme Courtrecall judgment.[25] In any event, and leaving aside the fact that the Supreme Court decision on thecommittal issue is binding on this Court, it is clear that there is no substance to thecommittal issue. As Ellis J apparently noted in 2014 "any defects in the pre-trialprocess would have been cured" by the subsequent trial. The committal process as itoperated in 2008 was intended to ensure that charges which did not reach theappropriate evidential threshold would not go to trial but did not require anysubstantive determination of admissibility issues, and in the event the evidentialthreshold was not met the charges were able to be re-laid with leave.29 Given thenature of the committal process, in the absence of a successful challenge to a committaldecision prior to that trial taking place there is simply no legal basis to suggest theresult of the trial would be invalidated by any defects in the committal process.30[26] Furthermore, in this case it is noted that the issue with the committal processidentified by the applicant is that Judge Burns committed the applicant to trial on thebasis of the complainant's unsworn evidential video interview. There is however nodispute that:(a) as Judge Burns noted, had his Honour declined to allow the unswornstatement to be relied upon, changes introduced by the SummaryProceedings Amendment Act 2008 would have allowed the charges to28 See [S] v Auckland District Court, above n 12.29 Police v D [1993] 2 NZLR 256 at 529; Daemar v Gilliand [1981] 1 NZLR 61 at 62.30 A conclusion that is not affected by the additional authorities provided by the applicant on16 November 2022.be re-laid and the unsworn evidence in question to be relied upon withina short time of the hearing before him;31 and in any event(b) the complainant was sworn prior to giving evidence at the trial itselfand it was on the basis of the sworn evidence, not the unsworn evidenceproduced at the committal hearing, that the applicant was convicted.[27] For these reasons therefore, and as the Supreme Court noted in its first recalljudgment, any errors alleged with the committal process were peripheral and wouldnot have affected the outcome of the trial.[28] Taking these matters together there can be no doubt the present proceedingsare an abuse of process and must be struck out. As a consequence of striking out theseproceedings the applicant's parallel application for interim orders, namely releasefrom prison pending the determination of his judicial review proceedings, also cannotbe considered.Decision[29] The application to strike out is granted. The applicant's proceedings, includinghis application for interim orders, are struck out.[30] Notwithstanding the applicant's status as a prisoner the fact that theseproceedings are manifestly an abuse of process means that the Attorney-General isentitled to costs. Any memorandum on behalf of the Attorney-General is to be filedby 25 November 2022 and any response by the applicant by 9 December 2022. I willthen determine the issue on the papers._______________________________Powell J31 Police v [S], above n 2, at [87].