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Howe v Christchurch District Court HC Christchurch CIV 2006-409-003037 [2007] NZHC 1793 (6 June 2007)

Last Updated: 22 May 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CIV 2006-409-003037}

BETWEEN CAROLINE MAIRE HOWE Applicant

AND THE CHRISTCHURCH DISTRICT COURT

Respondent

Hearing: 6 June 2007

Appearances: G B Henderson for Applicant

A M Powell and P Frost for Respondent

Judgment: 6 June 2007

_{JUDGMENT OF FOGARTY J}

[1] The plaintiff in these proceedings, Ms Howe, is jointly charged with a Mr Meaclem with an offence against s 127 of the Social Security Act 1964. In short it is alleged against them that they have lived together for a long time in a relationship in the nature of marriage and that Ms Howe, in particular, has received very significant sums of money over a number of years to which she is not entitled.

[2] In these proceedings the applicant seeks a review of a decision of Judge Moran in the Christchurch District Court on 30 October 2006 wherein the Court abandoned the trial but refused to grant a stay of the proceedings and instead adjourned the proceedings to a new fixture.

[3] In these proceedings the applicant seeks an order overturning that decision and seeks an order to obtain a stay.

HOWE V THE CHRISTCHURCH DISTRICT COURT HC CHCH CIV 2006-409-003037 6 June 2007

[4] In addition to the joint charge against Mr Meaclem under s 127 of the Social

Security Act the applicant also faces a number of other charges under ss 228 and

229A of the Crimes Act 1961.

[5] The background to this case is that in June of 2005 the applicant was interviewed by an investigative officer from the Ministry of Social Development and following that interview, which put to her that she was in a relationship in the nature of marriage with Mr Meaclem, various work was done by the Ministry leading to charges being laid which were first called in Court on 2 February 2006. Almost immediately there were problems with disclosure by the prosecution to the defence.

[6] There were three status hearings convened on 14 March, 11 April and 9 May respectively. At the 14 March status hearing the District Court Judge noted the file:

Disclosure of briefs yet to be made.

[7] At the 11 April hearing disclosure had still not been completed. Counsel for the prosecution, Mr Fletcher, accepted responsibility for that failure and at this point Judge Abbott endorsed the information with the following notation:

Applications to have charges dismissed refused (quaere - only power would be to direct a stay) RBTC 9/5/06 3.45 pm SH may proceed then). Full disclosure to be made by 28/4/06. In default defendants may seek stay on

9/5/06.

[8] At the further status hearing on 9 May the principal event was setting the matter down for hearing on 30 and 31 October. At this hearing on 9 May Mr Henderson, who is now counsel for the applicant attended with then counsel, Mr Knowles. But both were in a difficult position, the one of taking over the file and the other of giving up the brief due to conflicting fixtures. Mr Henderson was unaware of the note made by Judge Abbott. He was not formally assigned until 15

June.

[9] The matter came on for hearing on 30 October. It quickly became apparent to both counsel and the Judge that full disclosure had not been made.

[10] Judge Moran relevantly records the situation:

[4] When the case opened this morning, I was told by Mr Williams that there are 20 witnesses to be called and it then transpired that both defence counsel claimed that they had not seen briefs of evidence for six or seven of those witnesses.

[5] As the case unfolded it became apparent from counsel that they had not seen the first three exhibits that were produced in the case, and had not had disclosed to them two further documents that were produced in evidence.

[6] At that time those objections were met by my adjourning the case for an hour, so that counsel could look at the documents that they had not seen before and discuss them with their clients.

[7] In the luncheon adjournment both counsel have taken instructions and reviewed their positions and they now make two applications, the first is that these proceedings be stayed and, in broad terms, that is underpinned by the right of people charged with offences to have the charges tried and determined without delay.

[11] That then was the setting of the application for stay of proceedings. In examining that Judge Moran noted the point reached on 11 April and the notation that Judge Abbott had made on the file, but went on to observe with reference to Judge Abbott’s indication that an application to stay might be made:

That is, of course, not any indication that such an application would succeed.

[12] The Judge then went on and the relevant reasoning for this application is contained in the following:

[12] These charges, as I have already indicated, are serious, particularly as they relate to Ms Howe, and that is a very significant consideration when one is dealing with an application for a stay. The more serious the charge, the less likely the prosecution is to be stayed.

[13] Moreover, I do not detect any lack of good faith or any misbehaviour on the part of the prosecuting authority. Any lapses that have occurred here, and they have certainly occurred, are of neglect rather than a deliberate attempt to evade the responsibility to disclose.

[14] And so, this is not a case where a stay of proceeding would be appropriate and I decline to stay these prosecutions.

[15] The fallback position by both defendants is that this hearing be abandoned and be scheduled to start again when they have had a full opportunity to consider the briefs of evidence, some of which have still to be disclosed, and to consider all of the exhibits in the case.

[16] That application, it seems to me, is difficult to resist.

[17] I have kept the pressure on defence counsel up to this point by endeavouring to ensure that any prejudice in late discovery is met by adjournments. We have already had this case stood down for an hour this morning to that end, but still full disclosure has not yet occurred and is rather occurring in a piecemeal way as the trial proceeds. Given the seriousness of these charges, that is unsatisfactory, and the hearing is therefore abandoned.

[18] This case will be scheduled to begin again. The remand will be to a status hearing date that the Court will advise.

[13] As a result of that decision the case was set down for hearing in April of this year but then, as a result of this application for judicial review, that fixture date was vacated and is now currently set down for hearing on 31 July and 1 August.

[14] Mr Henderson argued that in all the circumstances of this case the Judge should have granted a stay. His argument was, to a degree, anchored around the memorandum or note of Judge Abbott of 11 April, who signified that if there was not full disclosure made by 28 April the defendants may seek a stay. Mr Henderson argued that with the exception of two witnesses the prosecution case was essentially documentary. Those two witnesses referred to were the landlady of Ms Howe and Mr Meaclem’s mother. Mr Henderson observed given her position vis-à-vis her son, the other co-defendant, it may well be that Mr Meaclem’s mother’s evidence would not be of great assistance to the Crown.

[15] Essentially, he argued that the Crown case was going to rely significantly on the documents. Accordingly, to have a fair trial there ought to be a full disclosure of all the documents to be used by the Crown prior to the hearing.

[16] He also drew to the attention of the Court that there was apparently a glitch in the record keeping of the relevant Department. Some documents, which are of importance to the case, are missing. Whether or not that gap can be filled by the officers who handled the correspondence being called and recollecting what happened, is a matter that cannot be determined at this stage.

[17] The setting for examining whether or not the decision of the District Court to decline stay can be reviewed has to be considered against the common law and against the New Zealand Bill of Rights Act 1990.

[18] Dealing first with the common law position, the leading New Zealand case is the decision of Moevao v Department of Labour [1980] 1 NZLR 464 and it was recently considered by Randerson J in Attorney-General v District Court at Hamilton [2004] 3 NZLR 777:

[29] In Moevao, Richardson J observed at p 481 that there were two related aspects of the public interest which bear on the issue of abuse of process. The first is the public interest in the due administration of justice and ensuring that the Court’s processes are used fairly both by the state and its citizens. The second is the maintenance of public confidence in the administration of justice. Plainly, public confidence will be diminished if the processes of the Court are used unfairly. At p 482 Richardson J summarised the principles in the following passage:

“The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the Court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.”

[19] The second perspective that needs to be brought to bear is s 25(b) of the New

Zealand Bill of Rights Act:

25 Minimum standards of criminal procedure

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

...

(b) The right to be tried without undue delay

[20] There has been a recent analysis of this provision by Winkelmann J in the case of Du v District Court at Auckland [2005] NZHC 276; [2006] NZAR 341. In that judgment Winkelmann J referred to the recent decision of the House of Lords in Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72 and cited with approval the following passage:

[65] Lord Bingham concluded at p 89:

The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.

[21] In my view the position now reached in respect of s 25(b) is essentially the same position that the common law developed in exercise of the inherent power of a trial Judge to control a trial to ensure a fair trial as stated in Moevao.

[22] Essentially, the trial Judge has to recognise the right of parties to a trial, be it a civil trial or a criminal trial. The Judge is there to decide the case but not to decide whether the case should be run or not. It is only when the Judge reaches a view that a fair trial is not possible, that the Judge is going to stay the proceedings. Once a Judge is satisfied that a fair trial is not possible then the remedy of stay will follow swiftly. It is in that context, in my view, that this application for judicial review has to be approached.

[23] The applicant, Ms Howe, is plainly stressed by these proceedings and that is understandably so. Indeed she has contracted osteomyelitis, a bone disease, and has medical support that this may have occurred due to her immune system being less effective because of the stress of these proceedings.

[24] Litigation is always stressful. Adjournment and the length of time between the commencement of proceedings and the trial, exacerbates that stress. That is a

factor which the Court is very aware of but has to be placed in the context of the overriding interest of the community in matters being brought to trial. It is not of itself a ground for stay of proceedings. I am not aware of any authority which suggests it is. It can, however, be one of the factors to be taken into account in a judgment as to whether there can continue to be a fair hearing. In my view, on the facts of this case, the stress being borne by Ms Howe does not get into that category. Of more particular moment is the reasoning of the District Court Judge. His reasoning does not cite authority, but it is plain that he focussed firstly on whether or not there had been any lack of good faith or misbehaviour on the part of the prosecuting authority. He was of the view that he could not detect any such lack or any misbehaviour. What he saw was neglect.

[25] Mr Henderson argued as forcefully as he could that the Judge should not have taken that view in the light of the clear notice having being given to the prosecution by Judge Abbott back on 11 April 2006. However, Mr Henderson had to agree, and did so properly, that the view that Judge Abbott was taking of the matter in April of that year was not binding on Judge Moran. The fact that Judge Abbott was prepared to consider an application for stay only three months into the legal proceedings, albeit about a year after the investigation started, did not bind Judge Moran.

[26] In my view Judge Moran quite properly began his analysis of the merit of an application for stay by examining whether or not there was any basis of bad faith or malicious conduct on the part of the prosecution. He found there was not and in the absence of that, and so in the absence of an abuse, the argument for stay on these facts really fell away. The Judge had earlier observed that the two day fixture in October was coming on for trial within eight or nine months of the first call of the proceedings and obviously had in mind that the second trial should be able to get underway within a few months. Secondly, as he indicated, that second trial would take place after any prejudice and late discovery had been remedied. He did not spell out the obligation on the Crown to ensure that full discovery occurred prior to the trial but from paragraph [17] of his reasoning it is obvious that he was saying that it was unsatisfactory for any trial to proceed in this sort of case without full disclosure having occurred prior to the trial.

[27] If, come 31 July, the prosecution case is still springing surprises on defence counsel then that will be a completely different environment and there will be an opportunity for defence counsel to apply for a stay. But that is not the position at the present time, and certainly was not the position on 30 October when the matter was considered by the Judge.

[28] For these reasons I am satisfied that there was no reviewable error of law on the part of the Judge. Nor could it be argued that the Judge’s decision was unreasonable, of the kind that can be challenged upon judicial review.

[29] For these reasons the application for judicial review is dismissed. [30] Ms Howe is legally aided. There will be no order for costs.

Solicitors:

G B Henderson, Christchurch, for Applicant

Crown Law Office, Wellington, for Respondent