SIMON ALLEN KERR V NEW ZEALAND POLICE HC WHA CIV-2012-488-130

SIMON ALLEN KERR V NEW ZEALAND POLICE HC WHA CIV-2012-488-130 [7 June 2012]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCIV-2012-488-130[2012] NZHC 1262BETWEEN SIMON ALLEN KERRApplicantAND NEW ZEALAND POLICERespondentHearing: 6 June 2012Counsel: Applicant in personSE McKenzie for RespondentJudgment: 7 June 2012JUDGMENT OF LANG J[on application by respondent for orders striking out proceeding]This judgment was delivered by me on 7 June 2012 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] The police laid 20 charges of burglary against Mr Kerr in the District Court. He elected trial by jury, and in February 2012 was committed for trial on those charges. The Crown Solicitor at Whangarei has now filed an indictment charging Mr Kerr with 22 counts of burglary. His trial will take place in the District Court.[2] Mr Kerr has applied to the District Court for an order staying the charges on the basis that they constitute an abuse of process. He has also applied for an order discharging him under s 347 of the Crimes Act 1961 on the basis that there is insufficient evidence to enable a properly directed jury to reasonably convict him on the charges. Both applications are due to be heard at a pre-trial hearing in the District Court during September 2012.[3] On 16 January 2012 Mr Kerr applied to this Court for judicial review of the original decision by the police to lay the charges against him. The police have now applied for an order striking out the proceeding on the basis that it discloses notenable cause of action, or is otherwise an abuse of the Court's process.Is judicial review available?[4] Mr Kerr seeks judicial review of a decision by the police to prosecute him. It is now recognised that judicial review is available in respect of such a decision, but only in exceptional circumstances. By and large, the Court will not intervene unless it is established that the prosecuting authority acted in bad faith, or brought the prosecution for a collateral purpose.1[5] In Fox v Attorney-General the Court of Appeal said:2The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of theCourt's own function of responsibility for conduct of criminal trials. Thisreluctance to interfere on the ground that the prosecution is thought to be inappropriate is widely apparent in the common law jurisdictions...1 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [64].2 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [31].[6] In Polynesian Spa Randerson J further summarised the reasons for the reluctance of the courts to intervene in prosecutions by way of judicial review as follows:3(a) It is important that the proper constitutional boundaries be observed. The discretion to prosecute on behalf of the state is a function of Executive government rather than the Courts whose function is to ensure the proper and fair conduct of trials: Fox v Attorney-General[2002] 3 NZLR 62 (CA) at para [31]. See also Police v Hall [1976] 2 NZLR 678 (CA) at p 683 and R v Sang [1980] AC 402, at p 454.(b) Criminal proceedings should not generally be subject to collateral challenge. Entertaining challenges of this kind outside the trial and appeal process is likely seriously to disrupt the criminal justice system: R v Director of Public Prosecutions, ex parte Kebilene[1999] 4 All ER 801 at p 834 per Lord Steyn.(c) As noted in Fox in the same passage, decisions to initiate and continue prosecutions generally involve a high content of judgment and discretion in the decisions reached.(d) Where a prosecution ensues, the Courts possess an inherent power to stay or dismiss a prosecution for abuse of process. Fox reviewed the principles upon which a Court may act to protect against such an abuse.(e) The conclusion on behalf of a prosecuting authority that an offence has been committed is merely an expression of opinion which is capable of being challenged in Court: R v Sloan [1990] 1 NZLR 474 at p 478.(f) If factual errors are made in an investigation by a prosecuting authority or if there is further or other material which a defendant considers ought to have been weighed by the prosecuting authority, there is an opportunity to explore and test such issues at trial and to bring such further evidence as the defendant sees fit.The arguments[7] Mr Kerr argues that the police made their decision to prosecute him in bad faith. He contends, quite rightly, that the police have an obligation to investigate criminal wrongdoing and, if there is sufficient evidence to identify the offender, to lay charges. He submits that the process has gone awry in the present case because the police have charged him in circumstances where they know that they do not have sufficient evidence to justify the charges. He contends that the only rational3 Polynesian Spa Ltd v Osborne, n 1 at [62] (a) to (f).explanation for the actions of the police in the present case is that they are acting in bad faith and/or for a collateral purpose. The actions of the police have meant that Mr Kerr has now been in custody for 13 months awaiting trial.[8] Counsel for the police submits that there is no evidence to suggest that the police have acted in bad faith or for a collateral purpose. She points out that the criminal process will address Mr Kerr's concerns as to the sufficiency of the evidence through the pre-trial applications he has already filed in the District Court. She submits that this Court should permit the criminal process to resolve those issues, and that it would be wrong in principle for it to intervene at this point by way of judicial review.Decision[9] Mr Kerr's case rests on his contention that there has always been insufficient evidence to justify the charges that the police have laid. I consider that it would be wrong in principle for this Court to effectively intervene in the criminal process when the only allegation of bad faith rests on an argument relating to the sufficiency of the evidence. Intervention through judicial review in such circumstances would breach the principles to which Randerson J referred in Polynesia Spa.4 In particular, it would offend against the principle that criminal proceedings should not generally be subject to collateral challenge, and that such challenge is likely to disrupt the criminal justice system.[10] I am fortified in my view by the fact that this Court would be unlikely to grant relief in this proceeding because responsibility for Mr Kerr's prosecution passed from the police to the Crown Solicitor following committal. In filing an indictment the Crown Solicitor must be taken to have evaluated the evidence and to have exercised his own judgment regarding its strength. He must have been satisfied that evidence existed to support each of the charges he has seen fit to include in theindictment. There is nothing before the Court to suggest that the Crown Solicitor hasbeen motivated by bad faith or for a collateral purpose in undertaking that importantconstitutional role.4 Set out above at [6].[11] For these reasons I am satisfied that the application for judicial review does not contain a tenable cause of action, and that it would also be an abuse of theCourt's process to become involved in a collateral challenge to criminal proceedings.Result[12] The application is granted, and the proceeding is struck out.Costs[13] Should the police wish to seek costs, their counsel should file a brief memorandum to that effect within the next 14 days. Mr Kerr will then have 14 days within which to respond, with a further seven days for submissions in reply. I will then deal with the issue of costs on the papers.Lang JSolicitors:Crown Law, WellingtonCopy to:Applicant