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Bennett v District Court of New Zealand [2020] NZHC 1730 (16 July 2020)

Last Updated: 4 December 2020

JUDGMENT OF DOOGUE J

Introduction

• [1] The applicant, Mr Bennett, has applied for judicial review of the decision of Judge Kellar in the District Court at Christchurch, declining to stay the proceedings against him on the ground that they are an abuse of process.¹

• [2] The first respondent has indicated it will abide the decision of the Court.

• [3] The Attorney-General asks the Court to strike out the claim, on the ground that the judicial review is itself an abuse of process.

¹ R v Bennett [2019] NZDC 16311.

BENNETT v DISTRICT COURT OF NEW ZEALAND & ANOR [2020] NZHC 1730 [16 July 2020]

Factual background

• [4] Mr Bennett faces three tranches of charges:

(a) 62 charges for dishonesty offences, alleged to have occurred between 1997 and 2014, set down for a three-week trial beginning 17 August 2020;

(b) charges for indecent assault and drug related offending in 2008, scheduled for a pre-trial call over in the District Court at Auckland on 21 July 2020; and

(c) Civil Aviation Authority charges, scheduled for a pre-trial call over in the District Court at Christchurch in July 2020.

• [5] One of the dishonesty charges alleges that Mr Bennett, jointly with Simone Wright (as she was then known), stole a yacht in Paihia, New Zealand and sailed it to Sydney, Australia in 2015.

• [6] Mr Bennett is a New Zealand citizen. When he and Ms Wright arrived in Australia in 2015, he had no valid passport or visa for entering Australia. In May 2016, he was deported to New Zealand. On arrival in New Zealand, he was arrested and charged.

• [7] Mr Bennett applied to the District Court for a stay of proceedings, on the basis that his deportation to New Zealand was a disguised extradition. Disguised extradition is a means by which states achieve jurisdiction over a person, going through official extradition processes. The procedures are lawful, but they are sometimes used abusively to circumvent an otherwise accepted ground for denying the return of an individual to the requesting state.

• [8] Mr Bennett applied for a stay on the ground that the prosecution was an abuse of process, due to this disguised extradition. In Wilson v R, the Supreme Court held the “power of a court to grant a stay of proceedings has long been recognised as

necessary to enable a court to prevent an abuse of its processes.”² The Court noted the existence of this power had been confirmed in several decisions of the Court of Appeal, most notably Moevao v Department of Labour.³ The Supreme Court held a stay may be granted in criminal proceedings where there is state misconduct that will: prejudice the fairness of a defendant’s right to trial; or undermine public confidence in the integrity of the judicial process of a trial is permitted to proceed.⁴

• [9] Mr Bennett’s case falls into the latter category; he asserts that the manner of his removal from Australia to New Zealand amounts to an abuse of process to such a degree that continuation of the proceedings against him would, as the District Court put it, “compromise the moral integrity of the criminal justice system.”

• [10] The District Court dismissed the stay application on 21 August 2019. The reasons were summarised by the Court as follows:

• [128] Australian officials were bound to remove Mr Bennett from Australia under s 198 of the Migration Act (AUS) as soon as practicable once proceedings in Australia had run their course. Mr Bennett did not have a choice about where Australian officials would send him. He was, and is, a New Zealand citizen and as such the natural course is for Australian officials to remove Mr Bennett from Australia to New Zealand.

• [129] New Zealand police were in communication with their Australian counterparts about what Australian officials were going to do with Mr Bennett, but they did not bring about the determination to remove Mr Bennett. Although, New Zealand police considered applying to extradite Mr Bennett, as was likely in Ms Wright’s case, they soon ceased such a course when they found out that Mr Bennett would be removed from Australia an unlawful non-citizen. They then treated him for all intents and purposes as a “returning offender”. The fact that Mr Bennett was not a returning offender as such does not render the actions of the New Zealand police unlawful.

• [130] Even if the burden lies on the New Zealand police to show that there has not been any illegality or unlawfulness on their part, there is no evidence to show that they connived at or procured Mr Bennett’s removal from Australia to New Zealand through unlawful means that should give rise to a stay of proceedings. The application is therefore dismissed.

• [11] Mr Bennett applied for judicial review of the District Court decision in February 2020, on two grounds: that, in an error of law, the District Court failed to

² Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [39].

³ Moevao v Department of Labour [1980] 1 NZLR 464 (CA).

⁴ Wilson v R, above n 2, at [40].

assess whether the elements of disguised extradition were present; and on the basis of errors of fact relating to the circumstances of his removal from Australia and back to New Zealand.

• [12] The Attorney-General now applies for an order that the application for judicial review be struck out, as an abuse of process.

Submissions

The Attorney-General

• [13] Mr Sinclair, for the Attorney-General, submitted the application for judicial review is an abuse of process, because:

(a) the decision can be challenged on appeal if Mr Bennett is convicted; and

(b) there is no compelling reason for the Court to intervene.

• [14] Mr Sinclair submitted the application for strike out can be resolved by asking the following question: if Mr Bennett proceeds to trial and is convicted, can he renew his challenge to the propriety of the proceedings by way of appeal? He submits the answer is an emphatic yes, and that an appellate court can determine whether the prosecution was tainted by an abuse of process, under s 232 of the Criminal Procedure Act 2011 (the Act).

Mr Bennett

• [15] Mr Shamy, for Mr Bennett, submitted the application for judicial review is not an abuse of process, and Mr Bennett’s case warrants intervention by the Court because:

(a) the gate to an application for judicial review of a refusal to grant a stay is not closed, and such an application is not necessarily an abuse of process;

(b) the circumstances of this case are exceptional and fall within the residual narrow jurisdiction of the Court to entertain judicial review of a pre-trial court decision;

(c) Mr Bennett faces three trials (the first of which is set to take three weeks), and it is compelling and logical that the issue of the alleged errors is resolved pre-trial.

• [16] Mr Shamy submitted a full hearing is required to determine whether the matter comes within the sparing discretion to judicially review a pre-trial decision of the District Court, because of the importance of the protection of an individual’s rights in any extradition process.

The law

• [17] Rule 15.1 of the High Court Rules 2016 provides a court may strike out all or part of a pleading for various reasons, including if it “is otherwise an abuse of the process of the court.”

• [18] In the present application, the onus is on the Attorney-General to show the proceeding is an abuse of process. This is a heavy onus, to be exercised only in exceptional circumstances.⁵

Analysis

Is the gate to an application for judicial review of a refusal to grant a stay closed, on the grounds of it being an abuse of process?

• [19] A decision of a District Court Judge is amenable to judicial review by the High Court, but the power is to be exercised sparingly in the criminal jurisdiction.⁶ This creates a high threshold for successful review, but does not necessarily create a bar to the proceeding.⁷

5. Merisant Co, Inc v Flujo Sanguineo Holdings Pty Ltd [2018] NZCA 390, [2018] NZAR 1550 at [24].

⁶ Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA) at 136.

⁷ Angus v District Court [2017] NZHC 2879, [2018] NZAR 1804 at [22].

• [20] In DGN v Auckland District Court, Simon France J struck out an application for judicial review, where the applicant sought orders quashing the decision to charge him.⁸ The applicant alleged the charges were an abuse of process because they were the product of a conspiracy, they were not credible due to past dishonest conduct, and there was insufficient evidence. Simon France J set out a comprehensive assessment of the appropriateness of judicial review of pre-trial decisions of the District Court, in light of the “major overhaul of criminal procedure” brought about by the Act.⁹ He held the proceeding was an inappropriate use of judicial review, and found “the scope for using judicial review to challenge decisions made under the ambit of the Criminal Procedure Act must ... be extremely narrow.”¹⁰

• [21] Simon France J noted the Act provides “carefully crafted appeal rights”,¹¹ and has a “significant” impact on this type of application, reinforcing the reluctance of the courts to allow judicial review to interrupt the conduct of criminal prosecutions.¹² He observed the Act “represents legislative assessment of an appropriate scheme which affords avenues of challenge and appeal at what are considered to be the fair and appropriate points in the process”, and judicial review as an alternative “carries significant potential to undermine this scheme”.¹³

• [22] In particular, he found that the Act provided all the opportunity the applicant needed to make appropriate challenges, including the power in s 147, under which an abuse of process argument might be advanced (including an abuse sourced in delay, misconduct, or because there is no useful purpose to the proceeding).¹⁴ He noted the Act prescribes appeal rights, reflecting a “careful consideration” of what appeal rights should exist pre-trial and post-verdict, and judicial review should not be seen as a way to circumvent that scheme.¹⁵ Although the Act does not provide for pre-trial appeals of decisions under s 147, finally he noted “the matters which underlay the s 147 application can of course be revisited as part of a conviction appeal.”¹⁶

⁸ DGN v Auckland District Court [2016] NZHC 3338, [2018] NZAR 137.

⁹ At [28].

¹⁰ At [40].

¹¹ At [28].

¹² At [29].

¹³ At [32].

¹⁴ At [30].

¹⁵ At [31].

¹⁶ At [31].

• [23] I also note the following principles identified by Clark J, when dismissing an application for judicial review of a District Court decision declining a stay under s 147 due to prosecutorial delay, in Angus v District Court:¹⁷

(a) Judicial review of a District Court decision under s 147 of the Act is only appropriate where, by reason of the nature of the error, the intervention of the High Court is “imperative.”

(b) A remedy by way of judicial review is not appropriate where an alternative remedy exists.

(c) Where Parliament has provided appeal procedures by statute, it will only be in rare and exceptional circumstances that courts will allow the collateral process of judicial review to be used to attack an appealable decision.

(d) The policy factors weighing against disruption, delay and fragmentation of the criminal process will not preclude judicial review of an error that has the potential to lead to a serious injustice that cannot be corrected on appeal.

• [24] I also acknowledge that the recent High Court authorities encourage the use of strike out applications, to assess whether judicial review of a decision of the District Court in a criminal case is appropriate.¹⁸ I emphasise this continues to be a prudent approach, particularly where a case appears unmeritorious.

• [25] Turning now to the Act, I note that s 296(3)(b) specifically preserves the right to appeal a question of law in the determination of a charge, including a dismissal under s 147 or a stay of prosecution. In declining an appeal by a defendant under s 296, of a High Court decision declining a stay of prosecution, the Court of Appeal has held:¹⁹
  • [34] ... Section 296 reflects Parliament’s intention to minimise the opportunities to challenge pre-trial rulings and ensure that trials are heard

¹⁷ Angus v District Court, above n 7, at [23].

18. DGN v Auckland District Court, above n 8, at [33]; Rowell v District Court [2017] NZHC 2706, [2017] NZAR 1717 at [2]; Angus v District Court, above n 7, at [29].

¹⁹ Lyttle v R [2019] NZCA 329, [2019] 3 NZLR 636.

expeditiously. The corollary of this objective is that a defendant should have every reasonable opportunity to pursue a general appeal in the event that he or she is convicted.

• [35] The jurisdiction in s 296(3) is only likely to apply in relation to decisions dealing with a defendant’s application to dismiss a charge or stay a prosecution where:

(a) the prosecution wishes to appeal a trial court’s decision dismissing a charge or staying a prosecution; or

(b) in rare cases where the defendant can demonstrate a trial court’s decision has, effectively, resulted in a determination of the proceeding.

• [26] In terms of Mr Bennett’s rights to appeal if convicted, he could appeal a conviction on the ground of a miscarriage of justice under s 232(c) of the Act, relying on the alleged abuse of process underlying the application for a stay of proceedings. I note this right of appeal would only be of assistance to Mr Bennett if he could show a nexus between the alleged misconduct and the outcome of the proceedings.²⁰

• [27] Due to the seriousness of the alleged misconduct, the present case can be distinguished from the cases of unsuccessful applications for judicial review discussed above. In striking out the claim DGN, Simon France J noted the provisions in the Act available to the applicant for challenging those matters he raised, and found judicial review was not appropriate in light of those procedures contained within the Act.²¹ Additionally, he also found there was no material to support the allegations and the application was therefore untenable.²²

• [28] I also note that an application to stay a prosecution can be distinguished from an application to dismiss a charge under s 147 of the Act.²³ I consider cases such as Angus, involving allegations of misconduct such as prosecutorial delay,²⁴ can be distinguished from the present allegation of an abuse of process so serious it undermines the judicial process.

• [29] Therefore, while I consider the line of reasoning in DGN and Angus to be correct, and the threshold remains very high, I find that it remains open to this Court

²⁰ Russell v District Court (Manukau) [2004] DCR 289 at [48].

²¹ DGN v Auckland District Court, above n 8, at [30].

²² At [38].

²³ Lyttle v R, above n 19, at [10].

²⁴ Angus v District Court, above n 7.

to allow a judicial review of a pre-trial decision in the criminal context to proceed in exceptional circumstances. I consider this to be the case even where the alleged error can be challenged on appeal upon conviction (and thus it follows that I reject Mr Sinclair’s formulation of the issue at [14]). But this must be the case only in exceptional circumstances.

Are the circumstances of this case so exceptional as to come within the narrow residual jurisdiction of the Court to entertain judicial review of the refusal to stay?

• [30] A disguised extradition where the defendant would not have stood trial “but for” the unlawful conduct of the executive in abducting the defendant has been deemed an abuse of process so serious as to demand a stay in most common law countries for a considerable time now.

• [31] As Arnold J observed in Wilson v R:²⁵

This indicates that in cases where the state agency’s behaviour is in serious conflict with the rule of law, the balancing process is likely to be reasonably straightforward, in the sense that the enormity of the misconduct will be essentially determinative of the outcome.

• [32] At [78], Arnold J observed further:

There are situations where, once a “but for” connection is established between the prosecution and the official misconduct, a stay will almost inevitably be granted. One example is where an accused is facing trial only because he or she has effectively been abducted from another jurisdiction to face trial without proper procedures being followed; another is where an accused has been entrapped into offending by the conduct of state agencies.

• [33] Given disguised extradition is an extreme affront to the integrity of any justice system it follows, if proven, it is exceptional in character and the remedial response is also exceptional.²⁶

• [34] That said, this class of case must sit within the very narrow band of case where it is inappropriate to let the criminal proceedings take their course, and only allow the issue of the alleged disguised extradition to be raised in an appeal after conviction.²⁷

²⁵ Wilson v R, above n 2, at [53].

26. R v Hartley [1978] 2 NZLR 199; R v Horseferry Road Magistrates’ Court, ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 (HL); Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719.

²⁷ Criminal Procedure Act, s 232(c).

• [35] For that reason, I consider this matter should be dealt with pre-trial and the application for judicial review of the District Court’s refusal to grant a stay should proceed.

Conclusion

• [36] The gate to applications for judicial review in the pre-trial criminal context is narrow for very good reasons, and only exceptional cases pass through it.

• [37] Here, when dealing with fundamental freedoms and rights and the possibility of perpetuating injustice through a disguised extradition, an exceptional case is established.

Result

• [38] The application for strike out is refused.

Doogue J