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High Court of New Zealand Decisions |
Last Updated: 25 May 2023
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CIV-2020-404-2472
[2023] NZHC 1159 |
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UNDER
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the Judicial Review Procedure Act 2016, Part 30 High Court Rules, New
Zealand Bill of Rights Act 1990 and Declaratory Judgments Act
1908
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IN THE MATTER
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of proceedings moving for an application for judicial review, writs, civil
and Bill of Rights Act claims and a petition for declaratory
relief
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BETWEEN
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FRANCISC CATLIN DELIU
Plaintiff/Applicant
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AND
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ATTORNEY-GENERAL
First Defendant/Respondent
DEPUTY SOLICITOR-GENERAL (CRIMINAL)
Second Respondent
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Hearing:
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21, 22 June 2022
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Appearances:
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F C Deliu Plaintiff/Applicant in Person
D Harris for the First Defendant, First and Second Respondent
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Judgment:
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15 May 2023
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JUDGMENT OF HARVEY J
This judgment is delivered by me on 15 May 2023 at 4.45 pm
pursuant to r 11.5 of the High Court Rules.
.....................................................
Registrar / Deputy Registrar
Solicitors: Crown Law, Wellington Plaintiff: F Deliu
DELIU v ATTORNEY-GENERAL [2023] NZHC 1159 [15 May 2023]
Contents
Introduction [1]
Judicial review (2472 proceeding) [3]
The claim [8]
Background [10]
Was the Attorney-General’s delegation
decision unlawful? [23]
Mr Deliu’s submissions [23]
Attorney-General’s
submissions [30]
Legal principles [36]
Discussion [39]
Was the Deputy Solicitor-General’s
decision unlawful? [47]
The claim [47]
Mr Deliu’s submissions [48]
Deputy Solicitor-General’s
submissions [55]
Legal principles [67]
Power to stay [67]
Amenability to review and judicial
restraint [70]
Discussion [77]
Decision [99]
Introduction
[1] This judgment determines one of two related judicial review applications filed by Francisc Deliu.1 The first concerns Mr Deliu’s endeavours to have his criminal charges stayed (“2472 proceeding”). He seeks a review of the decision of the Attorney-General to forward his request to the Crown Law Office and the (reconsidered) decision of the Deputy Solicitor-General to refuse his request for a stay of prosecution.
[2] The second judicial review application concerns a phone call between Mr Deliu and Mr Flanagan, a Crown prosecutor, on 17 May 2018. Mr Deliu seeks review of Crown Law’s decision to reject his complaint relating to Mr Flanagan and Mr Dickey (“348 proceeding”). That application is dealt with in a separate judgment.
Judicial review (2472 proceeding)
[3] Mr Deliu faces two sets of criminal charges that have been outstanding since 2017/2018: two charges of assault with a weapon and two charges of attempting to
pervert the course of justice.2 Since 2020 he has attempted via numerous pathways to have these charges stayed.
[4] On 18 October 2020, Mr Deliu wrote to the Attorney-General and asked him to stay proceedings. The Attorney-General advised he had transferred the request to the Crown Law Office. Mr Deliu objected to, and seeks to review, this approach.
[5] On 22 October 2020, the Deputy Solicitor-General refused to grant a stay. Mr Deliu and counsel for the Deputy Solicitor-General reached a settlement position whereby the Deputy Solicitor-General would reconsider the decision. She did so on 11 March 2022, confirming that she would not be staying the charges against him.
[6] Mr Deliu seeks judicial review of this decision.
[7] The Attorney-General and Deputy Solicitor-General oppose the application for review on the basis that the Solicitor-General and her delegates are empowered to undertake certain powers, functions and duties of the Attorney-General. Ms Harris for the Attorney-General submitted that he was in any event not required to consult before transferring the application. Moreover, counsel contended that a review of the decision not to stay proceedings should be sparingly exercised. The Deputy Solicitor‑General’s decision and process were also legitimate. Finally, Ms Harris argued that the issues raised by Mr Deliu’s application were properly matters for trial.
The claim
[8] Mr Deliu’s application for review is supported by the following claims:
(a) The Attorney-General’s delegation to Crown Law Office was illegal.
(b) The Attorney-General’s failure to respond was a breach of natural justice.
(c) The Deputy Solicitor-General failed to give reasons in breach of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).
2 For further background see Deliu v Auckland District Court [2023] NZHC 164.
(d) The Deputy Solicitor-General failed to take account of 17 relevant considerations.
(e) The Deputy Solicitor-General took account of irrelevant considerations or in the alternative breached natural justice/s 27 of the NZBORA by applying the guidelines for prosecution.
(f) The Deputy Solicitor-General erred in fact or in the alternative breached natural justice/s 27 of the NZBORA by finding that Mr Deliu could return to New Zealand and that there had been no prosecutorial misconduct.
(g) The Deputy Solicitor-General erred in law by applying the wrong burden and misapplied the law by referring to the standard of “satisfied”.
(h) The Solicitor-General’s Prosecution Guidelines 2013 (the Guidelines) are ultra vires s 185 of the Criminal Procedure Act 2011 (CPA).
(i) The Deputy Solicitor-General’s refusal to grant a stay is irrational or unreasonable and contrary to administrative law.
[9] In summary, the issues for determination are first, was the Attorney-General’s delegation decision unlawful? Secondly, was the Solicitor-General’s decision to refuse a stay unlawful?
Background
[10] As foreshadowed, on 18 October 2020, Mr Deliu wrote to the Attorney‑General to request a stay of criminal charges against him. He relied on several points.
[11] First, there was a police abuse of power. The background is that in 2016 Police searched the floor of a building holding both Mr Deliu’s law office and another law office, Amicus Law, in the course of an investigation into land transfer fraud. Mr Deliu advised one of the persons charged to not speak to Police. This forms part of the summary of facts relating to Mr Deliu’s perverting the course of justice charges.
He challenged the legality of the search warrant in Deliu v Police, pleading he was subject to arbitrary detention, false imprisonment and misfeasance in public office.3
[12] Duffy J found that the search of Mr Deliu’s law offices was unlawful because it failed to comply with s 143 of the Search and Surveillance Act 2012 and that Mr Deliu was placed in arbitrary detention by Detective Senior Sergeant Chapman.4 Detective Holland was also involved in the search warrant execution.
[13] In his stay application to the Attorney-General, Mr Deliu emphasised that Detective Senior Sergeant Chapman and Detective Holland, whose conduct he called into question in Deliu v Police, continued to investigate him for criminal conduct, which he asserted was a conflict of interest. Mr Deliu claimed that Detective Senior Sergeant Chapman had correspondence with a person who made death threats against him. He referred to an extract of the decision of Palmer J which stated in relation to the death threats “I have no doubt that Mr Deliu’s complaint and fear was genuine”.5 Further, Mr Deliu referred to Palmer J’s finding that Mr Deliu’s claims against the Police were reasonably arguable.
[14] Secondly, Mr Deliu claimed that there was prosecutorial misconduct and referred to the phone call of 17 May 2018 between himself and Mr Flanagan.6 He said Mr Flanagan was soliciting a guilty plea from without serving the charges or providing him the summary of facts.
[15] Thirdly, Mr Deliu noted that the District Court had not taken steps to advance his application for a stay filed 20 July 2020.7 He attached the dismissal/stay application filed in the District Court.
[16] On 22 October 2020, the Attorney-General informed Mr Deliu he had transferred the stay of proceedings request to the Crown Law Office. Mr Deliu wrote back on the same date and challenged the transfer, stating that the statutory power to
3 Deliu v New Zealand Police [2020] NZHC 2506.
4 The claims of false imprisonment and misfeasance in public office were rejected.
5 Deliu v Chapman [2020] NZHC 2100 at [16].
6 The background and transcript of this phone call is set out extensively in Davison J’s decision
Deliu v Flanagan [2022] NZHC 2621 at [7]–[29] and need not be reproduced here.
7 For further context on the stay application see Deliu v Auckland District Court, above n 2.
stay was bestowed upon the Attorney-General uniquely. On 17 November 2020, Mr Deliu in further correspondence stated that if his request was ignored he would file judicial review proceedings.
[17] On 22 December 2020, Ms Brook as Acting Deputy Solicitor-General wrote to Mr Deliu advising his prosecution would not be stayed because the more appropriate venue was the District Court and Mr Deliu had already filed an application there. This decision was originally challenged in the statement of claim but a settlement arrangement was reached in February 2022 whereby the decision would be reconsidered.
[18] On 20 February 2022 Mr Deliu made his revised application for a stay to the Deputy Solicitor-General. He sought a stay on the grounds that:
the charges are meritless and/or not bona fides but are instead a form of a clearly conflicted police abusing court processes and/or prosecutorial misconduct and/or I cannot get a trial/stay in the District Court (“Court”) and/or I cannot return to New Zealand to be tried due to criminal threats on my family’s safety which the police refused to protect and indeed colluded with.
[19] Additional to the matters Mr Deliu identified in his application to the Attorney‑General, he raised the issue of the impossibility of trial due to what he claimed was governmental misconduct, fear for safety and wrongful judicial conduct. Mr Deliu concluded by stating he is entitled to be heard before any adverse finding is made about him, and if the Crown was unwilling to stay the proceedings, he demanded it seek his extradition.
[20] In summary, Mr Deliu made the following points in his second stay request:
(a) The case was initially about the persons working at Amicus Law defrauding their client. They were ultimately discharged without conviction but suspended from practice.
(b) Mr Deliu acted for one of those persons. He claims he was penalised for exercising that person’s right to complain about Police and to remain silent.
Advising someone to remain silent does not merit the charges laid. He acted on valid instructions.
(c) Police have withdrawn the charges against Mr Zhao, with whom Mr Deliu was jointly charged, but his charges remain extant.
(d) He was prepared to attend his assault trial in abstentia but there were concerns about fitness to stand trial. He cannot return to New Zealand due to fears for his safety, which are exacerbated by the Police’s failure to support him regarding these safety concerns. Given he cannot return, the District Court will not continue in abstentia, and the state will not extradite him, charges should be stayed.
(e) Mr Flanagan acted in a manner amounting to prosecutorial misconduct by advising Mr Deliu of future charges and that the 17 May 2018 phone call included Mr Flanagan pressuring him to plead guilty without knowledge of the charges.
(f) The prosecution team are inextricably connected with those involved with the search of Amicus Law and are thus conflicted.
[21] On 11 March 2022, Ms Hardy, as the Deputy Solicitor-General, determined:
I have decided not to stay your prosecutions. I am not satisfied they were wrongly commenced, nor that their continuation is oppressive or otherwise unjust. You requested that I provide my reasoning in relation to each of the grounds you put forward for a stay. In brief:
You have also requested that New Zealand seek your extradition. Extradition requests are not made upon demand. As I have noted, whether you return to New Zealand is a matter for you.
[22] I note that Judge Paul’s decision, mentioned at para 3 of Ms Hardy’s decision, was reviewed by me in Deliu v Auckland District Court.8
Was the Attorney-General’s delegation decision unlawful?
[23] Mr Deliu made five challenges to the “purported” delegation. First, he submitted that only the Attorney-General has the power to stay. It is de jure non‑delegable. Secondly, and relatedly, he contended that even if the Attorney- General is not prohibited from delegating, the Attorney-General’s office is of such a unique nature that the Solicitor-General cannot receive the power. The power is de facto non‑delegable. Mr Deliu pointed to s 176 of the CPA which codifies the power to stay and noted that the section merely confirms the existing common law power for the Attorney-General to stay proceedings.
[24] Mr Deliu contended that the Attorney-General is not the head of any agency and cannot delegate power to any inferior under the Carltona principle.9 Moreover, because the Solicitor-General’s office is “inconsistent” with the Attorney-General’s office, the Solicitor-General could not receive the power. The Attorney-General is to act impartially, whereas the Solicitor-General is the government’s legal adviser and advocate. In Mr Deliu’s submission they have both different roles and obligations. He contended it is a conflict and unfair to have someone on the “same side” as the Police determine the complaint.
[25] Thirdly, if delegation to the Solicitor-General was possible, the limited circumstances in which he could do so were not present. Section 9A of the
8 Deliu v Auckland District Court, above n 2 at [120] and following.
9 Carltona Ltd v Comrs of Works [1943] 2 All ER 560.
Constitution Act 1986 (CA) permits the Solicitor-General to perform a function or duty imposed or exercise a power conferred on the Attorney General. Mr Deliu submitted that this provision is qualified by the government to be limited by Chapter 4 of the Cabinet Manual which states that when the Attorney-General is unable to carry out his or her functions (due to being overseas, unwell or otherwise temporarily unavailable), the Solicitor-General may exercise the Attorney-General’s law officer functions under s 9A of the CA. Mr Deliu contended that this statement in the Cabinet Manual shows Cabinet chose to restrict the circumstances in which the Attorney- General can delegate, none of which are present.
[26] Fourthly, even if the delegation was possible, it was not conducted in a procedurally proper manner. Mr Deliu argued that an “automatic” delegation is wrong and the Attorney-General must consider whether it is appropriate to delegate the power. Mr Deliu cited R v Adams, a United Kingdom Supreme Court case, in which Lord Kerr stated that whether a power is able to be delegated pursuant to the Carltona principle depends on the framework of the legislation, the language of the pertinent provisions and the importance of the subject matter.10 He argued that delegation should be considered properly on a case-by-case basis and decisions should not be delegated on a nebulous “practice”.
[27] Fifthly, and in any event, Mr Deliu submitted that the purported delegation was to the “Crown Law Office”, rather than to an individual or to the Solicitor-General which was ultra vires. He contended that delegations are given to individuals, not juridical persons. Further, the Solicitor-General, despite referring to herself as the “Chief Executive” of Crown Law, is legally distinct from it. The delegation should have explicitly been made to the Solicitor-General, according to Mr Deliu.
[28] After the hearing, Mr Deliu filed supplementary submissions dealing with the legality of the delegation instrument the Crown relies on. He submitted that the instrument was immaterial to his argument because he contended the power could only be exercised by the Attorney-General and did not fall under “power conferred on the Attorney-General that may be performed or exercised by the Solicitor-General”.
10 R v Adams [2020] UKSC 19, [2020] 1 WLR 2077.
[29] Mr Deliu’s second ground of review is that the Attorney-General breached natural justice by failing to reply to his letter demanding the Attorney-General personally make the decision. Mr Deliu referred to s 27 of NZBORA and noted that, had the Attorney-General responded and considered the delegation points, the present litigation could have been avoided.
Attorney-General’s submissions
[30] Ms Harris submitted that Mr Deliu’s submission in relation to unlawful delegation “misunderstands New Zealand’s bespoke provisions which provide for the sharing of the Law Officer power”. Counsel referred to s 9C of the CA which allows the Solicitor-General to delegate the Attorney-General’s powers to a Deputy Solicitor- General with the Attorney-General’s permission. Additionally, Ms Harris contended that there is a convention that the Attorney-General does not become involved in prosecutions.
[31] Counsel argued that s 176 of the CPA gives the Attorney-General the power to stay but did not preclude him or her delegating it; if Parliament had intended that only the Attorney-General personally could exercise this power it would have articulated such a restriction in the legislation. Ms Harris submitted that such a restriction would have been notable for its deviation from established convention and as such would have warranted debate and express language. Counsel compared s 31(6) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 which provides that the powers and duties conferred and imposed on the Attorney-General by that section are not capable of being exercised or performed by the Solicitor-General. No such limitation has been expressed in s 176 of the CPA.
[32] Ms Harris responded to Mr Deliu’s submissions on Carltona arguing that reference to that principle is unnecessary where s 9A of the CA is engaged. She also responded to the argument that the Solicitor-General is not independent, stating that both the Solicitor-General and the Attorney-General are Law Officers, required to carry out Law Officer functions independently and apolitically. Ms Harris emphasised that it is preferable to have an apolitical public servant making prosecution related
decisions rather than a Minister because of the convention that Ministers should not be making decisions on individual criminal cases.
[33] Counsel also refuted Mr Deliu’s argument that the Cabinet Manual restricts the application of s 9A of the CA to when the Attorney-General is unwell, overseas or temporarily unavailable, stating it is incorrect to restrict s 9A in this way. Further, Ms Harris argued that the Solicitor-General’s exercise of Law Officer power is an original exercise of power which does not involve delegation.
[34] Counsel submitted that Mr Deliu’s argument that the delegation was procedurally improper fails to account for the sharing of the Law Officer power. In addition, she contended that Mr Deliu’s argument that the Attorney-General failed to delegate to an individual was based on a misapprehension. Ms Harris contended that the Attorney-General is not required to delegate powers to the Solicitor-General because s 9A of the CA confers power on the Solicitor-General. The Attorney‑General’s office stated in its correspondence that the application would be referred to the Crown Law Office. The request was duly received by the Deputy Solicitor‑General, in reliance on the Solicitor-General’s practice for the Deputy Solicitor‑General to manage this work, in Ms Harris’ submission.
[35] Regarding the purported breach of natural justice, Ms Harris contended that Mr Deliu has not demonstrated that there has been any breach of this right. There are valid reasons for the transfer, so the transfer is not a breach of s 27 of NZBORA. Mr Deliu could have no expectation that he was entitled to contest the transfer. To emphasise her point Ms Harris referred to Henderson v Attorney-General where it was held the Attorney-General does not need to consult on a stay application.11 That being the case, Ms Harris submitted, there could be no expectation to consult on the transfer.
Legal principles
[36] As canvassed by both parties’ submissions, the power to stay is expressed in s 176 of the CPA but originates in the common law.12 Section 176 provides:
11 Henderson v Attorney-General of New Zealand [2022] NZHC 816.
12 Rewa v Attorney-General [2018] NZHC 1005.
176 Stay of proceedings
[37] Section 9A of the CA states: “The Solicitor-General may perform a function or duty imposed, or exercise a power conferred, on the Attorney‑General.”
[38] Section 9C of the CA provides:
9C Delegation of powers of Attorney-General and Solicitor-General
Discussion
[39] As a starting point, in several previous cases, the exercise (or non-exercise) of the power to stay was executed by the Solicitor-General or Deputy Solicitor-General
was non-controversial.13 In Fox v Attorney-General the Court of Appeal commented on the constitutional arrangement in relation to the Solicitor-General’s role in prosecution decisions:14
[29] There are various mechanisms for the accountability of those making prosecutorial decisions within structures of government and as part of the government’s own responsibility to the House of Representatives. These apply whether prosecution decisions are taken by law enforcement agencies such as the police, the Serious Fraud Office, or other government departments or public agencies, or by the Law Officers of the Crown, the Attorney-General and Solicitor-General, who have an overall responsibility for prosecution processes. The Attorney-General is, as well as being the senior Law Officer, the Minister directly responsible for the conduct of prosecutions laid indictably, once they have reached the stage of committal for trial following depositions. Other Ministers are likewise responsible to Parliament for conduct of particular prosecutions by the departments for which they are responsible. In all cases independence from political direction of prosecutorial decision making is an established constitutional practice in New Zealand. It is often reflected explicitly or implicitly in the legislative framework governing such departments and other public bodies and public officials. It is especially reflected in the role of the Solicitor-General in the prosecution process in New Zealand (J Ll J Edwards, The Attorney-General, Politics and the Public Interest (1984), pp 391 – 396; Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), paras 9.5(3) and 25.8.2; Huscroft, The Attorney- General, the Bill of Rights and the Public Interest, in Huscroft and Rishworth, Rights & Freedoms (1995), p 135).
[40] Beyond that, however, the plain words of ss 9A and 9C of the CA confirm that the delegation was lawful. Section 9A of the CA confers on the Solicitor-General the power to perform any power conferred on the Attorney-General. Whether that is characterised as a delegation, as Mr Deliu argued, or an original power, as Ms Harris argued, is immaterial. I accept Ms Harris’ submission that the Cabinet Manual does not limit the plain words of the provision.
[41] Section 9C of the CA allows the Solicitor-General to delegate any function, duty or power of the Attorney-General to a Deputy Solicitor-General with the written consent of the Attorney-General. Crown Law has put into evidence that delegation instrument. I also accept Ms Harris’ submission that in light of this statutory framework the Carltona principle and associated case law is not relevant.
14 Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) (emphasis added, citations original).
[42] I also accept Ms Harris’ submission that if the power were to be exercised by the Attorney-General personally, that would be made explicit. This is supported further by s 176(3) of the CPA which specifically provides for the Attorney-General to personally exercise the power where the relevant charges are against the Crown Law Office under the Crown Organisations (Criminal Liability) Act 2002. This subsection would be redundant if Mr Deliu’s interpretation were correct that the Attorney-General must always personally exercise the power.
[43] Mr Deliu argued that the delegation was wrongly made to the “Crown Law Office” rather than an individual. However, the email sent by the Attorney-General is not determinative of what the delegation in fact consisted of. The delegation was to a Deputy Solicitor-General as evidenced by the fact that Ms Hardy issued the decision. In practical terms, Mr Deliu’s request was transferred to the Crown Law Office, where it was received and acted on by the Deputy Solicitor-General.
[44] For completeness there is also s 9C(5) of the CA: the fact that a Deputy Solicitor-General performs a function or duty or exercises a power is, in the absence of proof to the contrary, sufficient evidence of his or her authority to do so. I do not consider there is any proof to the contrary.
[45] Finally, Mr Deliu contended in his reply submissions that his was a special case analogous to the Rainbow Warrior case where the Attorney-General personally issued a stay on proceedings. As noted in Ms Harris’ submissions, the context of that decision was the international relations and national interest considerations, which made it more appropriate for the Law Officer with a political mandate to determine. Here Mr Deliu’s case raises traditional interest of justice considerations which make it appropriate for the Solicitor-General (or her Deputy under delegation) to consider. Notwithstanding those comments, this kind of decision is properly in the realm of the executive branch and the functioning of government. There is good reason to believe that the Attorney-General’s exercise of discretion to personally determine a stay application (rather than delegate, or vice versa) due to national interest or other political considerations is not something that is reviewable by this Court.
[46] Turning to Mr Deliu’s claim that his right to natural justice was breached by the Attorney-General’s failure to reply to his letter, I do not discern anything from the submissions that would establish or indicate a right to contest the Attorney-General’s delegation power. Even less so the Attorney-General’s power to act in a specific case on a delegation that has been made. The Attorney-General’s “decision” was simply an administrative action to give effect to the pre-existing delegation, that is, to forward the complaint to the Deputy Solicitor-General to determine.
Was the Deputy Solicitor-General’s decision unlawful?
[47] Mr Deliu cites seven review grounds against the Deputy Solicitor-General:
(a) Ms Hardy’s decision was in breach of natural justice because it provided only cursory reasons.
(b) There was a failure to take into account relevant considerations, namely the pointlessness of prosecution, prosecutorial misconduct and police abuse.
(c) Ms Hardy wrongly took into account the Solicitor-General’s Prosecution Guidelines or alternatively breached natural justice by not providing Mr Deliu a chance to comment on issues he did not advance.
(d) There were errors of fact which amounted to irrelevant considerations.
(e) The decision erred in law as to the legal standard of proof.
(f) The Guidelines are ultra vires or a wrongful fettering of discretion.
(g) The refusal to stay is unreasonable or irrational.
[48] Relying on his argument regarding the Attorney-General’s delegation decision, Mr Deliu submitted that the further delegation to the Deputy Solicitor-General was illegal. He contended that there is nothing that allows such further delegation.
[49] Secondly, Mr Deliu submitted that the Deputy Solicitor-General’s reference to him as a “fugitive” was an error of fact and law, referring to Deliu v Chapman where the Court commented that the Crown and Meredith Connell’s characterisation of Mr Deliu as a “fugitive from justice” was “exaggerated”.15 He argued his supposed fugitive status was clearly material to the decision.
[50] Thirdly, Mr Deliu contended that the decision breached natural justice as the Deputy Solicitor-General did not consider the merits of his application, instead refusing it on grounds he did not raise. Mr Deliu argued that this was a breach of natural justice because the Attorney-General agreed to consider his request, yet the Deputy Solicitor-General failed to do so. In addition, Mr Deliu said it was a breach of natural justice because he was not invited to comment on the grounds upon which the Deputy Solicitor-General refused the request.
[51] Fourthly, and relatedly, there was a failure to take account of relevant considerations, according to Mr Deliu. He submitted that the decision failed to address the grounds advanced that he was subject to prosecutorial misconduct, abuse of power by the Police, and denied access to justice by the District Court. Mr Deliu contended that the evidence and law he adduced was ignored.
[52] Fifthly, Mr Deliu argued that the decision took account of irrelevant considerations, namely that he was a fugitive, had warrants for his arrest, had applied to the District Court for a stay and was supposedly seeking to circumvent the District Court’s jurisdiction. Mr Deliu submitted this ignored the legal threshold for a stay as set out in Wilson v R: where there is state misconduct that will (a) prejudice the fairness of a defendant’s trial; or (b) undermine public confidence in the integrity of the judicial process if a trial is permitted to proceed.16
[53] Sixthly, Mr Deliu submitted that the decision was biased for the reasons previously argued relating to the Solicitor-General’s lack of independence. He further contended that the Crown Law Office are “on the prosecution team”. Accordingly,
15 Deliu v Chapman, above n 5 at [11].
16 Wilson v R [2015] NZSC 189.
Ms Hardy could not have been a fair, impartial, neutral and objective decision maker, in Mr Deliu’s view.
[54] Finally, Mr Deliu advanced an innominate ground of review, claiming that the Attorney-General and District Court’s powers to stay were discrete. Thus the Deputy Solicitor-General rejecting the application on the basis an application was before the Court was unlawful, particularly in circumstances where Mr Deliu contended the District Court was denying him access to justice.
Deputy Solicitor-General’s submissions
[55] Ms Harris submitted that the decision to initiate and continue prosecutions was properly and separately that of the executive. Accordingly, counsel suggested that, with reference to the authorities, a decision to refuse to issue a stay may be reviewable but only with judicial restraint as to the intensity of review and with relief available only in exceptional cases. Ms Harris contended that even though Mr Deliu’s prosecution has not progressed, it is still on foot, and the District Court retains the ability to consider his dismissal application. Thus the traditional judicial oversight is available, justifying judicial restraint in the area of prosecutorial discretion in this case.
[56] As to the decision-making framework, counsel contended that the Guidelines govern decision-making pursuant to s 188 of the CPA. There is a two-stage test: whether there is sufficient evidence to provide a reasonable prospect of conviction, and if satisfied, whether prosecution is required in the public interest. Ms Harris pointed to the relevant part of the Guidelines that note one of the situations where the Solicitor-General will exercise a stay is where “the Solicitor-General is satisfied that the prosecution was commenced wrongly, or that circumstances have so altered since it was commenced as to make its continuation oppressive or otherwise unjust”.
[57] Ms Harris then addressed Mr Deliu’s first claim: that Ms Hardy gave only cursory reasons in her decision amounting to breach of natural justice. Counsel submitted that Ms Hardy addressed the necessary grounds appropriately. She was not required to elaborate further, especially given the risk of collateral inference with the justice system. In addition, Ms Harris contended that there is no general duty to give reasons for prosecution decisions, notwithstanding the authorities as to the desirability
of reasons generally. This reflected, in counsel’s submission, the general principle of restraint.
[58] Four other reasons were advanced by counsel. The decision is carried out in the public interest and it is unclear who the duty is owed to. Reasons, and even the fact of the decision itself, may be confidential, for example because of ongoing or potential investigations. Reasons may be highly prejudicial to individuals without the protections of a trial process. Adverse comment on the credibility or reliability of particular witnesses also has the potential to cause distress and injustice. In any event, Ms Harris submitted Ms Hardy did give reasons to the standard set out in Northern Action Group Inc v Local Government Commission.17
[59] In addition, counsel contended that Wallace v Attorney-General,18 which found that the unique circumstances of the case required the Deputy Solicitor-General to give reasons, can be distinguished on its facts.
[60] Counsel then addressed Mr Deliu’s second ground of review that there was a failure to take account of relevant considerations. First, she contended it was open to Ms Hardy to conclude that whether Mr Deliu returns to the jurisdiction is a matter for him, and the question of whether the charges can proceed in Mr Deliu’s absence remains for future determination. Secondly, Ms Harris argued that any factual and legal issues relating to proof of the charges is a matter for trial. Thirdly, regarding Mr Deliu’s claims of corruption by various bodies, Ms Harris submitted that Ms Hardy did consider those factors. Mr Deliu simply wishes more weight to be placed on those factors which cannot found a review.
[61] Additionally, on this point Ms Harris submitted that the allegations of corruption and misconduct were unproven and a stay application was not the correct process to consider those untested complaints. Counsel contended that if Mr Deliu received a ruling or decision in his favour in relation to those allegations then that could be basis for a fresh stay application. Ms Harris made the same points regarding the alleged prosecutorial misconduct. Finally, on this ground Ms Harris argued that
17 Northern Action Group Inc v Local Government Commission [2020] NZHC 830.
18 Wallace v The Attorney-General [2021] NZHC 1963.
Ms Hardy did take Mr Deliu’s concerns with his safety into account and the weight given to those considerations is not reviewable.
[62] Fourthly, regarding the allegation that Ms Hardy took account of irrelevant considerations or breached natural justice, counsel submitted that the so-called “irrelevant” considerations were nothing more than the test set out in the Guidelines provided for in s 185 of the CPA. Counsel emphasised that in Henderson v Attorney- General the Court found that there was no duty to consult the applicant.19 In addition, there is overriding discretion as to what the decision-maker should take account of, as evidenced by the Guidelines’ direction, that “a prosecution not be continued when its continuance would be oppressive or otherwise not in the interests of justice”.
[63] Ms Harris submitted, as to Mr Deliu’s contention that Ms Hardy did not properly consider the Police’s failure to protect him and the District Court’s failure to progress his stay/dismissal application, that the evidence confirmed that she took a different view to Mr Deliu on these points. Ms Hardy was entitled to do so and her conclusions were not unreasonable.
[64] Ms Harris also contended that Ms Hardy did not misdirect herself as to the standard of proof. She followed the Guidelines appropriately.
[65] Counsel rebutted Mr Deliu’s contention that Chapter 25 of the Guidelines is ultra vires or a wrongful fettering of discretion. The Guidelines are aspirational, so they cannot fetter discretion; and the argument that there is no power to create Guidelines, only maintain them, is spurious, especially given the Solicitor-General’s oversight of public prosecutions more generally.
[66] Finally Ms Harris submitted that there is no basis for the assertion that Ms Hardy’s decision was unreasonable or irrational. Counsel confirmed that she relied on the previous submissions to the extent they are relevant on this point.
19 Henderson v Attorney-General, above n 11 at [73].
Legal principles
[67] The Guidelines provide guidance on exercising the power to issue a stay. The power to stay proceedings is “sparingly exercised”, but generally speaking the power to enter a stay will be exercised in three types of situations: where a jury is unable to agree after two trials; if the Solicitor‑General is satisfied that prosecution was commenced wrongly, or a change in circumstances has rendered the prosecution unjust; and to clear outstanding, stale or unresolved charges. The overriding concern for a stay is that “a prosecution not be continued when its continuance would be oppressive or otherwise not in the interests of justice”.
[68] In general terms, the power to exercise a stay will involve the same considerations involved in the decision to prosecute. This includes whether the evidence which can be adduced in court is sufficient to provide a reasonable prospect of conviction and whether the prosecution is required in the public interest. The latter includes consideration of undue delay and abuse of process.
[69] In Henderson v Attorney-General Edwards J stated that there is no duty to consult the charged person in the decision to issue a stay.20 In Rewa v Attorney- General Venning J cited various authorities to the effect that the Attorney-General’s power to stay is not subject to the Court’s control and does not require reasons.21
Amenability to review and judicial restraint
[70] In Henderson Edwards J found the decision to issue a stay is justiciable and reviewable.22 The same reasons articulated in Henderson support the decision to refuse to issue a stay being justiciable and reviewable, although I note the hesitation expressed in R v Barlow about whether the Law Officer’s decision not to intervene is amenable to review.23
20 Henderson v Attorney-General, above n 11 at [73].
21 Rewa v Attorney-General, above n 12.
22 Henderson v Attorney-General, above n 11 at [33].
23 R v Barlow, above 13 at 121.
[71] However, in Henderson Edwards J noted that stay decisions potentially engaged the “limited” intensity of review that applies to prosecutorial discretion.24 She concluded that a decision to stay a proceeding was analogous to a decision not to prosecute or to discontinue a prosecution, which the Court of Appeal in Osbourne v Worksafe New Zealand Ltd distinguished from a prosecution decision.25
[72] Following Edwards J’s reasoning and that of the Court of Appeal leads to the conclusion that the inverse is true: decisions to refuse to issue a stay are equivalent to prosecution decisions. Accordingly, the decision is one where judicial restraint should be applied in review.26
[73] Kós P writing for the Court of Appeal set out six reasons for the exercise of judicial restraint in prosecutorial discretion, which apply equally to reviewing a refusal to issue a stay:27
(a) the importance of observing constitutional boundaries, including the Executive’s role in deciding whether to prosecute, and the Courts’ role in ensuring the proper and fair conduct of trials;
(b) the high content of judgement and discretion in prosecutorial decisions;
(c) the undesirability of collateral challenges to criminal proceedings which may disrupt due process;
(d) the High Court’s inherent power to stay or dismiss a prosecution for abuse of process;
(e) the opportunity to challenge a prosecutor’s opinion that an offence has been committed — either summarily, by applying for a discharge under s 147 of the CPA, or at trial; and
24 Henderson v Attorney-General, above n 11 at [34]–[41]. As to the limited intensity review standard for prosecution decisions see Gill v Attorney-General [2010] NZCA 468, [2011] 1 NZLR 433 at [19]; Fox v Attorney-General, above n 14 at [28]–[37]; and Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [61]–[69].
25 Osbourne v Worksafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513.
26 Osbourne v Worksafe New Zealand, above n 25 at [34] and [36].
27 At [34].
(f) the existence of other mechanisms for accountability of prosecutorial decisions, such as the responsibility of the relevant minister to Parliament.
[74] Kós P went on to state:
[36] Thirdly, a stronger case for restraint exists where the prosecutorial decision is to prosecute. The risk of collateral interference with the criminal justice system is greater. The rights or wrongs of the prosecution, so far as the culpability of its subject are concerned, will be established by the conclusion of the criminal case.
[75] In Polynesian Spa v Osbourne the Court stated that the grounds of review for prosecutorial decisions should be limited to bad faith or collateral purpose.28 This is because “matters which may have afforded grounds for judicial review in other contexts are properly addressed by the Court exercising jurisdiction at trial”.29 Similarly in Moevao v Department of Labour Richardson J stated:30
The twin problems of an absence of objectively ascertainable standards and the relative unfamiliarity of the Courts with the weighing of all the considerations which may bear on the exercise of prosecutorial responsibility require the Courts to tread with the utmost circumspection.
[76] The Court of Appeal has described the judicial restraint exercised in supervision of prosecutorial decisions as a “constitutional principle”.31
Discussion
[77] The first question is whether the limited intensity of review should apply in this particular case in light of the legal principles cited. As I acknowledged in Deliu v Auckland District Court, Mr Deliu’s situation is somewhat unique in that the criminal trial(s) are not presently progressing due to, effectively, a stalemate position having been reached.32 That may mean the protections ordinarily afforded in the course of a trial which justify the Court’s restraint in prosecution decisions may not be as pronounced. On the other hand, I take Ms Harris’ point that the District Court does in
28 Polynesian Spa Ltd v Osborne, above n 24 at [65].
29 At [68].
30 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.
31 Fox v Attorney-General, above n 14 at [39].
32 Deliu v Auckland District Court, above n 2 at [138]-[144].
theory have the power to consider Mr Deliu’s dismissal application, it having only been adjourned. So judicial oversight in the appropriate area remains.
[78] In Deliu v Attorney-General Brewer J stated:33
In short, the Courts will not interfere with the exercise of the prosecutorial discretion to bring and continue charges, other than on the ground of evidential insufficiency, without clear evidence of wrongdoing which requires as a condign response that the charges be stayed or struck out. That is a high threshold to cross ...
[79] And further:
[9] The Courts are also reluctant to allow those accused of crimes to use the civil judicial review jurisdiction to challenge charges by attacking the processes or decisions by which they were brought. There are a number of reasons for this, including that the criminal jurisdiction confers on a Court all the powers necessary to ensure a trial is fair and to prevent a prosecution abusing the process of the Court. Further, the criminal jurisdiction provides that all allegations of unfairness or abuse of process can be fully examined through the calling of evidence.
[80] These comments are of particular precedent value because they relate to Mr Deliu’s review of the Crown Solicitor’s decision not to stay his charges in light of the 17 May 2018 phone call between Mr Deliu and Mr Flanagan, and alleged Police misconduct. Brewer J found that it was appropriate to apply the limited intensity of judicial review in a factual situation very similar, if not nearly identical, to the present. Accordingly, I am satisfied that judicial restraint should apply in the review of Mr Deliu’s claim. I now address Mr Deliu’s grounds of review in light of this.
[81] Mr Deliu claimed that Ms Hardy only provided cursory reasons and that was in breach of natural justice. At first blush, Ms Hardy’s reasons do appear somewhat brief. However, the Attorney-General’s decision to stay is highly discretionary. There are good reasons, as highlighted by Ms Harris, for truncated reasons to be given. In particular, it would have been inappropriate for Ms Hardy to provide detailed reasons on the unresolved factual allegations made by Mr Deliu, particularly as to matters of evidence that would be litigated at trial.
33 Deliu v Attorney-General [2023] NZHC 512 at [6].
[82] Additionally, although they are sparsely explained, reasons were given by Ms Hardy. It was not the case that she simply informed Mr Deliu the prosecution would not be stayed. First, Ms Hardy explained that she was satisfied there was sufficient evidence to prosecute and Mr Deliu’s arguments to the contrary did not affect that finding. She stated that she was satisfied the prosecutions were required in the public interest. This reflected the suggested test set out in the Guidelines. Mr Deliu could therefore be satisfied that the correct legal test was considered and applied to his application.
[83] Secondly, Ms Hardy gave reasons for why the grounds Mr Deliu advanced in support of a stay were not accepted. She addressed the claim of prosecutorial misconduct by Police or the Crown prosecutors and informed Mr Deliu she was not satisfied such misconduct had occurred, which was central to Mr Deliu’s application.
[84] Then Ms Hardy considered the issue of the prosecution failing to progress, stating that the issue was Mr Deliu’s absence from the country. She referred to Judge Paul’s decision to adjourn Mr Deliu’s application for a stay/dismissal, and his direction that the applications would be determined once Mr Deliu answered his warrants. Ms Hardy also addressed Mr Deliu’s concern that he could not return to New Zealand due to fears for his safety. She recorded that while Mr Deliu’s fears were acknowledged, there did not seem to be any impediment to Police addressing threats of violence in the usual way.
[85] Thus, Mr Deliu was given reasons that broadly outlined the rationale of the decision-maker when making her decision. The reasons “refer[red] to the main issues in dispute” and “show[ed] that the decision maker has addressed its mind to the criteria it was required to apply”.34
[86] In any event, I agree with Ms Harris that Wallace v Attorney-General and R v Director of Public Prosecutions (ex parte Manning) can be distinguished from the present case.35 Manning was a decision not to lay charges. Wallace v Attorney-
34 Northern Action Group Inc v Local Government Commission, above n 17at [127].
General was a decision not to take over an existing private prosecution. Accordingly, both cases were essentially decisions not to prosecute, whereas the present case is essentially a decision to prosecute. A decision to prosecute or not to stay is, as evidenced by the authorities, more discretionary and less amenable to review. Also, both those cases were death in custody cases with substantial public interest engaging the right to life. That is not the case here. In both of those examples the Court explicitly confined the duty to give reasons to the particular facts.36
[87] I also acknowledge the argument that it may have been preferable for Ms Hardy to swear an affidavit in this proceeding, consistent with the duty of candour, to explain her decision-making process. That said, it is not for this Court to interrogate the reasoning of prosecutorial decisions. In addition, I am satisfied that the reasons provided were adequate in light of the context of a prosecutorial decision relating to Mr Deliu’s circumstances.
[88] The above analysis of Ms Hardy’s decision goes some way to answering Mr Deliu’s second, third, fourth, fifth and seventh grounds of review as pleaded in the statement of claim and set out at [47] above.
[89] My conclusion is that Ms Hardy did not fail to take account of the relevant considerations pleaded by Mr Deliu. That is clear on the face of her decision. She may not have discussed the issue in as much depth as Mr Deliu would have preferred or given the weight Mr Deliu believed should have been given to his concerns, but as previously discussed, that is not a matter for this Court.
[90] Mr Deliu contended that his stay and dismissal application in the District Court was an irrelevant consideration. However, he put that in issue by contending that his charges should be stayed on the basis “I cannot get a trial/stay in the District Court (“Court”) and/or I cannot return to New Zealand to be tried”.
[91] He also argued that his request was denied on grounds that he was a fugitive and had outstanding arrest warrants, which were irrelevant considerations. Yet nowhere in Ms Hardy’s decision does she refer to Mr Deliu as a “fugitive”. There is
36 Wallace v Attorney-General, above n 18 at [615]; and Manning, above n 35 at [3].
no suggestion she directly took Mr Deliu’s arrest warrants into account. Instead, Ms Hardy referred to them in the context of Judge Paul’s decision, which was relevant to the issue raised by Mr Deliu cited above.
[92] In any case, it would be inappropriate for this Court to intervene in the substance or merits of the decision, including prescribing what the Deputy Solicitor‑General should take into account. In this context, I note the Court of Appeal’s comment in Osbourne v Worksafe:37
[45] The reality remains, however, that it will be difficult to make out grounds of review such as having regard to irrelevant considerations or failing to have regard to relevant considerations because of the width of the considerations to which the prosecutor may properly have regard, as well as the limited scope of considerations that are truly mandatory rather than merely permissive. That is one reason why it is said courts will only intervene in exceptional cases.
[93] Mr Deliu submitted that Ms Hardy wrongly took account of the Guidelines. Even so, I am satisfied that they are relevant and have been accepted by the courts to appropriately guide stay decisions.38 Mr Deliu claimed the Guidelines were an unlawful fettering of the discretion contained in s 176 of the CPA. I consider that the Guidelines are just that - guidelines. They are not prescriptive. Moreover, the Guidelines themselves suggest a wide discretion, with the ultimate consideration being whether the prosecution would be oppressive or not in the interests of justice.
[94] In addition, Mr Deliu claimed that Ms Hardy erred in law as to the burden of proof requiring him to establish the stay should be granted and using the standard of “satisfied”. There is no evidence that Ms Hardy placed the burden of proof upon Mr Deliu. I can see no error of law in the manner Ms Hardy approached her decision.
[95] Mr Deliu claimed Ms Hardy breached natural justice by not providing him with the opportunity to comment on issues he did not advance. As foreshadowed, there is no duty to consult on stay decisions.39 Further, Ms Hardy’s decision only addressed the standard test and the issues raised by Mr Deliu. My conclusion is that in this context there is no error.
37 Osborne v Worksafe New Zealand, above n 25.
38 Henderson v Attorney-General, above n 11 at [28].
39 Henderson v Attorney-General, above n 11.
[96] Further, Mr Deliu pleaded that the decision was unreasonable or irrational but did not advance an argument on this basis. I can see no prima facie basis for the decision being unreasonable or irrational. This ground must fail.
[97] Finally, while Mr Deliu submitted that Ms Hardy’s decision was unlawful for bias, this ground was not pleaded in the third amended statement of claim. In any case, I discern no indication of actual or apparent bias. My findings on the delegation issue as against the Attorney-General address Mr Deliu’s submission on this point.
[98] In conclusion, Mr Deliu has not established an error with the Attorney‑General’s decision or the Deputy Solicitor-General’s decision. Accordingly, the question of relief does not need to be addressed. For completeness, I record that even if an error had been established, this is not a case appropriate for relief because of the principle of judicial restraint, for the reasons outlined above.
Decision
[99] Mr Deliu’s application for judicial review is declined.
[100] My preliminary inclination is that costs should lie where they fall but if parties wish to file submissions I will receive memoranda of five pages in length, from the respondent one month after receipt of this decision and the applicant a month later.
Harvey J
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