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Lincoln v Attorney-General [2023] NZHC 3822 (20 December 2023)

Last Updated: 4 January 2024

JUDGMENT OF McQUEEN J

• [1] Mr Richard Lincoln seeks judicial review of two decisions made by the New Zealand Police (the Police), in respect of Mr Geoffrey Cavell, a person against whom Mr Lincoln has a civil restraining order. Mr Lincoln is self-represented in this proceeding. The Attorney-General appears on behalf of the Police in opposition.¹

1. Mr Cavell has maintained a watching brief but did not appear at the hearing. As noted by Ellis J in her Minute dated 27 July 2023, it can be reasonably be anticipated that his position and the position of the Attorney-General will coincide and so his interests will be protected by the Attorney-General’s participation in the matter.

LINCOLN v THE ATTORNEY-GENERAL [2023] NZHC 3822 [20 December 2023]

• [2] Mr Lincoln alleges that two formal warnings (the formal warnings) issued by the Police to Mr Cavell were unlawful. First, he says they constituted an unlawful bargain not to prosecute Mr Cavell on each occasion. Second, he says that they were given in breach of his natural justice rights pursuant to s 27 of the New Zealand Bill of Rights Act 1990 (the NZBORA). Mr Lincoln seeks declarations to that effect, an order setting aside the formal warnings, and costs.

• [3] The Attorney-General says that Mr Lincoln’s application for judicial review cannot succeed because it is moot, as the formal warnings have already been revoked by the Police owing to deficiencies distinct from those claimed by Mr Lincoln. The Attorney-General also says that, in any event, the warnings did not constitute unlawful bargains to stifle prosecution, nor did they engage Mr Lincoln’s natural justice rights.

• [4] For the reasons below, I consider that Mr Lincoln’s application for review should be dismissed.

Background

• [5] There is a history between Mr Lincoln and Mr Cavell. This is in part apparent from a District Court decision provided by Mr Lincoln, which records that Mr Cavell pleaded guilty to two breaches of the Harassment Act 1997.² A restraining order was made against Mr Cavell on 3 December 2021, to expire on 3 December 2023 unless it was extended prior to that date. I am not familiar with the details of the history and such familiarity is not necessary for me to deal with the present application.

Incidents leading to Police warnings given to Mr Cavell which were later revoked

• [6] The two incidents that led to the issuing of the formal warnings against Mr Cavell are as follows. First, on 15 June 2020, Mr Lincoln reported an incident to the Police. He alleged that Mr Cavell entered his property, refused to leave, and assaulted him. The Police made the decision following that incident to give a formal warning to Mr Cavell for common assault and issued that warning on 16 August 2020. They notified Mr Lincoln of that decision the same day. The formal warning recorded:

² Lincoln v Cavell [2022] NZDC 6362.

On 15/06/2020 at...Christchurch, it is alleged that you assaulted a person. There is enough evidence to charge you with the following offence(s) 1653 – Common Assault (Manually)

On this occasion a decision has been made to issue you with a Formal Warning letter. You will not be charged and you are not required to attend court. This Formal Warning letter will not result in a criminal conviction.

However, this Formal Warning letter will be recorded and stored in Police information systems. If you offend again, it may be taken into account when deciding on any action(s) that will be taken.

• [7] Second, on 5 September 2022, Mr Lincoln reported to the Police that Mr Cavell had breached the restraining order in force against him by sending Mr Lincoln a text message and posting a message on his business’ Facebook page. The Police made the decision following that incident to give a further formal warning to Mr Cavell. They issued a formal warning to Mr Cavell on 17 October 2022. They notified Mr Lincoln of that decision. The second formal warning was expressed in identical terms as the first, with the exception that the alleged offence was breach of a restraining order.

• [8] What underpins Mr Lincoln’s application for judicial review is his concern that the Police did not decide to prosecute Mr Cavell either for common assault or a breach of the restraining order. He perceives the issuing of the formal warnings and their effect (being that the Police would not prosecute Mr Cavell) as the entering into of an agreement between Mr Cavell and the Police to prevent Mr Cavell being prosecuted and says that alleged agreement is unlawful. In response, Mr Lincoln personally initiated two private prosecutions of Mr Cavell on 5 October 2022. I am unaware of what became of those proceedings.

• [9] As a result of Davidson J’s decision in S v Commissioner of Police, in 2023, the Police reviewed the formal warnings issued to Mr Cavell.³ Mr Lincoln was informed by the Police by way of a letter dated 21 July 2023 that the formal warnings issued against Mr Cavell had been withdrawn. That letter stated:

I wish to advise you that Police have recently reviewed the circumstances surrounding each of those warnings considering guidance from the High Court

³ S v Commissioner of Police [2021] NZHC 743, [2021] 3 NZLR 392.

in the S v Commissioner of Police decision, and current Police policy regarding the issuing of formal written warnings.

As a result, Police identified concerns regarding the requirement for formal warnings to be supported by clear admissions of offending and informed consent from Mr CAVELL to the formal warning process.

Accordingly, Police have made the decision to revoke both formal warnings and have removed them from the warnings section of Mr CAVELL’s National Intelligence Application (NIA) profile.

While I understand that you have challenged both warnings in current proceedings for judicial review, please note that the decision to revoke these warnings has been made for reasons unconnected to the issues raised in that litigation and is without prejudice to the Police’s position in that litigation.

The second cause of action is moot

• [10] In May 2021, Mr Lincoln had further alleged that Mr Cavell had been contacting him, leaving harassing voice messages, and had been loitering outside his address. On 8 May 2021, the Police sent Mr Cavell another letter. This letter was not intended to be a formal warning and was not a formal warning. No record of this letter was made in the NIA as a formal warning. In his first amended statement of claim, Mr Lincoln’s second cause of action alleges that the Police had acted unlawfully in sending Mr Cavell the letter of 8 May 2021, stating:

12. The applicant was not provided full information about the decision by any member of the Crown instrument known by some as “the New Zealand police”; in particular, no reason for the decision was provided.

13. The applicant was not given a chance to be heard about the decision before it was made.

14. The Harassment Act 1997, s8 does not authorise a member of the Crown instrument known by some as “the New Zealand police,” to promulgate a warning under it — and for completeness, the “Criminal Harassment Act” is not an enactment passed by the New Zealand legislature or one that has the force of law in New Zealand.

• [11] However, in their submissions, both Mr Lincoln and counsel for the Attorney- General, Ms Hamill, agreed that the second cause of action was moot because they are agreed that the letter of 8 May 2021 did not purport to be a formal warning. I agree that letter is of a different nature than the two formal warnings, and as a result of Mr Lincoln and Ms Hamill’s agreement, consider that nothing more need be said about the second cause of action.

The issues

• [12] The issues in this proceeding are as follows:

(a) is Mr Lincoln’s application for review entirely moot because the Police have withdrawn the formal warnings as a result of the decision in S v Commissioner of Police;

(b) did the two formal warnings constitute an unlawful bargain not to prosecute Mr Cavell; and

(c) were the two formal warnings issued in breach of Mr Lincoln’s right to natural justice?

Is Mr Lincoln’s application for review entirely moot?

• [13] Ms Hamill submits that as the Police have withdrawn the formal warnings issued against Mr Cavell, Mr Lincoln’s proceeding is entirely moot, as any illegality has already been remedied. Mr Lincoln disagrees. He records that he “seeks a remedy in respect of the actions taken” and submits that as the Police have not resolved to prosecute Mr Cavell, the continuing effect of the alleged agreement is to stifle prosecution.⁴

• [14] I am not satisfied that Mr Lincoln’s proceeding is entirely moot. If Mr Lincoln is able to establish that the formal warnings were unlawful for a reason distinct from the reasons discussed by Davidson J in S v Commissioner of Police, the fact that they have already been withdrawn would be a matter that would go to the courts’ discretion to provide effective relief.

• [15] In the present matter, this Court is required to determine whether actions of the Police were unlawful in the manner alleged by Mr Lincoln. It is still able to do that notwithstanding that the formal warnings have been withdrawn, and it is proper that it

4. Mr Lincoln argues that either judicial review or a declaratory judgment are open to the Court whether or not there is a live legal dispute: see Mandic v The Cornwall Park Trust Board (Inc) [2011] NZSC 135, [2012] 2 NZLR 194; and Lincoln v Police HC Palmerston North CIV-2009- 454-473, 1 March 2010.

do so. It follows that the proceeding is not moot in its entirety, and I go on to address Mr Lincoln’s allegations.

Did the two formal warnings constitute an unlawful bargain not to prosecute Mr Cavell?

Mr Lincoln’s submissions

• [16] Mr Lincoln submits that when a prosecutorial decision-maker issues a formal warning, they are “making a determination that a person is an offender and entering into an agreement with them to stifle prosecution on the condition that they accept an unauthorised punishment”. He takes issue with the fact that a warning is a notice of future action, but in reality, results in no action. He relies on Davidson J’s finding in S v Commissioner of Police that a warning is akin to a conviction in terms of its effect, saying that a police officer is not entitled under law to determine whether a person is an offender, as that is a decision that can only be made by a court. He refers also to a recent report from the Independent Police Conduct Authority in the context of police vetting activity, which he says similarly rejects the idea that Police can use what they call a prevention visit to record a ‘black mark’ against a person that is then available through a vetting report.⁵

• [17] Mr Lincoln accepts that the Police have a discretion not to prosecute but submits that they cannot enter into a contract to stifle prosecution on behalf of the Executive. Mr Lincoln says that there is nothing in the Solicitor General’s Prosecution Guidelines (the Guidelines) to suggest that an agreement to stifle prosecution may be made as an alternative to prosecution. He says that a formal warning is therefore a punishment or sentencing option that is not prescribed by law as a legitimate response to criminal offending. He casts this as being ultra vires.

• [18] Mr Lincoln compares the issuing of a formal warning to Osborne v WorkSafe New Zealand, the case in which the Supreme Court held that WorkSafe had entered into an unlawful bargain not to prosecute Pike River Coal Limited’s Chief Executive.

5. Independent Police Conduct Authority “Concerns about accuracy of information relied on for Police vetting” (26 September 2023, IPCA 21-8227) <

https://www.ipca.govt.nz/download/165359/26-SEPTEMBER-2023-IPCA-PUBLIC-REPORT- Concerns-accuracy-information-relied-on-Police-vetting.pdf>.

Mr Lincoln initially seemed to argue that there was a bargain between Mr Cavell and the Police to accept the punishment of a formal warning as an alternative to prosecution, and that it constitutes an illegal contract. This included suggesting that a person’s reputation may be the relevant consideration. He concluded:

41. The case for the applicant is that any determination of whether a person is an offender is the preserve of the judiciary and the only punishments that may be imposed on an offender are those set out in the Sentencing Act.

42. To the extent that a member of the executive branch of government makes a determination that the proposed recipient is an offender — and to the extent that an unauthorised punishment is imposed on the recipient — and to the extent that the recipient and a member of the executive enter into an agreement to stifle prosecution, in this submission, these agreements to stifle prosecution masquerading as “formal warnings” are not prescribed by law and are illegal.

The Attorney-General’s submissions

• [19] Ms Hamill submits that a formal warning does not constitute an agreement not to prosecute, although it does require an admission of conduct and consent to the warning by an alleged offender. She says that the conditions required to be established for a formal warning to be given bear no relationship to an unlawful bargain not to prosecute, based on the offer of money or other valuable consideration.⁶ Ms Hamill says that a formal warning does not free a defendant who contravenes the criminal law from punishment by the settlement of the resulting private injury.⁷ She submits that formal warnings are instead consistent with the fact that not all criminal conduct requires a prosecution response, as recorded in the Guidelines.

Discussion

• [20] I am satisfied that the formal warnings given to Mr Cavell by the Police were unlawful. However, the reasons for which they were unlawful are as submitted by Ms Hamill, as distinct from those advanced by Mr Lincoln. To illustrate this, I refer to Davidson J’s decision in S v Commissioner of Police. In that case, Davidson J held that:⁸

⁶ Osborne v Worksafe New Zealand [2017] NZSC 175, [2018] 1 NZLR 447. [Osborne SC]

⁷ At [70] per Elias CJ, William Young, Glazebrook and O’Regan JJ.

⁸ Above n 3, at [73].

A formal warning such as was given to the applicant has no statutory basis and, other than for pre-charge warnings which are restricted to comparatively minor offences, there is no specific Police policy governing the issuing of formal warnings which are to be recorded by entry on the Police NIA database. In this judgment I find that the issuing of the warning engaged the New Zealand Bill of Rights Act 1990 rights, and specifically the right to natural justice. Such rights can only be limited by a public decision-maker if the limitation is both reasonable and prescribed by law. The absence of any statutory authority or common law authority for formal warnings, and the lack of any promulgated protocol prescribing the pre-requisite requirements for their use, means that they are not prescribed by law.

• [21] Davidson J considered that as a formal warning was recorded in the Police National Intelligence Application (the NIA), it had the same substantive effect as a conviction for the purpose of the applicant’s ability to secure employment as a schoolteacher.⁹ However, the applicant was not told by the Police, before being interviewed, that there that there was a possibility that he could be given a formal warning and that any formal warning he was given would be entered on the NIA database and be accessible for the purposes of police vetting.¹⁰ Accordingly, his right to natural justice had been breached. Davidson J concluded:¹¹

It is accordingly clear that the issuing of a formal warning and its entry on the NIA database in circumstances where the ‘offender’ has not made an admission of the offending, and which is therefore based solely on the subjective view of the police officers involved in the investigation of the offending, effectively places the police officers responsible for issuing the formal warning in the position of being investigator, prosecutor, and judge, and operates without any of the safeguards against an injustice which are a fundamental requirement in relation to the less serious offences falling within the Police pre-charge warning regime. Where a formal warning is given in the absence of an admission and then entered onto the NIA database the effect of that warning and NIA record on the person to whom it relates is closely akin to that of an actual conviction entered following a prosecution process conducted in a court and overseen by a Judge. For many, if not most people accessing the NIA records, and especially those members of the public who are entitled to obtain Police vetting information concerning current and prospective employees, the record of the formal warning will be taken as conclusively indicating that the offending to which the warning related had actually occurred.

• [22] As the formal warnings in that case breached Mr S’s right to natural justice and the power to issue them was not prescribed by law, they were unlawful, as they were unable to represent a justified limitation on Mr S’s rights that was prescribed by law.

⁹ At [76].

¹⁰ At [77].

¹¹ At [101].

As noted above, it was Davidson J’s decision in S v Commissioner of Police that resulted in the Police reviewing their practice of issuing formal warnings, and ultimately the withdrawal of the formal warnings issued against Mr Cavell.

• [23] Mr Lincoln’s allegation in the present case is different from the allegations made in S v Commissioner of Police. He said, at least initially, that a formal warning constitutes an unlawful bargain not to prosecute, akin to the agreement made in Osborne v WorkSafe New Zealand. As noted, the Osborne proceedings concerned an application for judicial review of the decision by WorkSafe not to offer evidence against Pike River Coal Limited’s Chief Executive, Mr Peter Whittall. Mr Whittall faced 12 charges under the Health and Safety in Employment Act 1992 following the underground explosion at the Pike River coal mine in November 2010. WorkSafe offered no evidence against Mr Whittall because he had undertaken to make a voluntary payment of $3.41 million to the victims’ families. Accordingly, the District Court dismissed the charges against him, and Mr Whittall made the payment to the families of the victims.

• [24] The Supreme Court in Osborne discussed what constitutes an unlawful bargain not to prosecute. One of the key elements of this doctrine is the public interest in the prosecution of criminal offending. A private bargain to stifle prosecution acts against that public interest, as well as the personal interest of a victim. That is why:¹²

An unlawful bargain not to prosecute arises where there is an understanding or promise, express or implied, that a public offence (as opposed to a civil wrong) will not be prosecuted on condition of the receipt of money or other valuable consideration. The policy of the law is that a defendant who commits what is a public wrong cannot, by settling the private injury, be “entirely freed from the punishment due to a violation of public law”.

• [25] Mr Lincoln accepts that in the present case, the issuing of a formal warning by the Police to an alleged offender does not involve, in the ordinary sense of the phrase, the receipt of money or other valuable consideration, (although he did advance the argument in principle that reputation could be sufficient consideration). Further, even if there was consideration in this case, it did not act so as to settle the alleged private injury, being the alleged harassment of Mr Lincoln. In other words, Mr Lincoln

¹² Osborne SC, above n 6, at [70].

himself, being the complainant, did not receive any consideration or benefit from Mr Cavell, relied upon by the Police for the purpose of their decision not to prosecute Mr Cavell.

• [26] Rather, the Police, in exercising their prosecutorial discretion, elected not to prosecute Mr Cavell, despite their belief that they had sufficient evidence to do so. In one sense, that decision did stifle the prosecution of Mr Cavell. However, that decision was not the product of a bargain acting so as to right the private wrong alleged by Mr Lincoln, to the detriment of the public interest in prosecution. That would have required Mr Cavell to provide some consideration to Mr Lincoln with a view to the Police making a decision not to prosecute him. That did not occur on the evidence presented before this Court. I am satisfied that the decision not to prosecute Mr Cavell was not the result of an unlawful bargain.

• [27] In any event, on Davidson J’s analysis in S, the issuing of formal warnings against Mr Cavell constituted a punishment of Mr Cavell, in breach of Mr Cavell’s rights, as he had not admitted the alleged offending or consented to the issuing of those warnings. His Honour’s central conclusion was that the issuing of a formal warning in the absence of informed consent and an admission of responsibility was akin to the entering of a prosecution by the Police acting as prosecutor, judge, and jury. Therefore, the decisions to issue formal warnings to Mr Cavell were detrimental to Mr Cavell, he did not provide consideration, and nor did he benefit from the decision not to prosecute him, because the effect of issuing the warnings against him were akin to a conviction. The issuing of formal warnings was not in his interests, notwithstanding Mr Lincoln’s argument that the consideration provided by Mr Cavell could constitute an acceptance of an ‘unauthorised punishment’ or the trading of his reputation. It was unlawful, but not for the reasons advanced by Mr Lincoln.

• [28] The Court of Appeal in Osborne addressed the more preliminary question of whether a decision not to prosecute was amenable to review in the first instance.¹³ It noted that a decision not to prosecute because of an unlawful general policy,

¹³ Osborne v WorkSafe New Zealand [2017] NZCA 11, [2017] 2 NZLR 513. [Osborne CA]

effectively an abdication of discretion, is reviewable and likely to result in relief.¹⁴ A material error of law in the exercise of prosecutorial discretion will also be reviewable.¹⁵ So will a failure to accord with the applicable code for the conduct of prosecutions.¹⁶ Having concluded that there was no unlawful bargain struck for the purpose of thwarting Mr Cavell’s prosecution, the question then becomes whether for some other reason, the Police’s decision not to prosecute Mr Cavell, despite having evidential sufficiency, was unlawful. I consider that it is appropriate to briefly address this question given the underlying contention advanced by Mr Lincoln is that the decision not to prosecute Mr Cavell was unlawful.

• [29] The Guidelines provide the following two-step test for determining whether a prosecution should be initiated:
  • 5.1.1 The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and
  • 5.1.2 Prosecution is required in the public interest – the Public Interest Test.

• [30] The focus in the present case is upon the public interest test. The Guidelines relevantly record in respect of the public interest test that:

.... It is not the rule that all offences for which there is sufficient evidence must be prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.

...

Broadly, the presumption is that the public interest requires prosecution where there has been a contravention of the criminal law. This presumption provides the starting point for consideration of each individual case. In some instances the serious nature of the case will make the presumption a very strong one. However, prosecution resources are not limitless. There will be circumstances in which, although the evidence is sufficient to provide a reasonable prospect of conviction, the offence is not serious and prosecution is not required in the public interest. Prosecutors for instance should positively consider the appropriateness of any diversionary option (particularly if the defendant is a youth).

14. At [39]; citing R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 (CA).
15. At [48]; citing R (on the application of Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756 at [32].

¹⁶ At [49].

• [31] The Guidelines also note several considerations that operate against exercising the discretion to prosecute. These include:

• 5.9.1 Where the Court is likely to impose a very small or nominal penalty;

• 5.9.2 Where the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by an error of judgement or a genuine mistake;

• 5.9.3 Where the offence is not on any test of a serious nature, and is unlikely to be repeated;

• 5.9.4 Where there has been a long passage of time between an offence taking place and the likely date of trial such as to give rise to undue delay or an abuse of process unless:

...

• 5.9.5 Where a prosecution is likely to have a detrimental effect on the physical or mental health of a victim or witness;

• 5.9.6 Where the defendant is elderly;

• 5.9.7 Where the defendant is a youth;

Where the defendant has no previous convictions;

• 5.9.9 Where the defendant was at the time of the offence or trial suffering from significant mental or physical ill-health;

• 5.9.10 Where the victim accepts that the defendant has rectified the loss or harm that was caused (although defendants should not be able to avoid prosecution simply because they pay compensation);

• 5.9.11 Where the recovery of the proceeds of crime can more effectively be pursued by civil action;

• 5.9.12 Where information may be made public that could disproportionately harm sources of information, international relations or national security;

• 5.9.13 Where any proper alternatives to prosecution are available (including disciplinary or other proceedings).

• [32] I first note that the discretion not to prosecute because of the considerations identified above is an action that is prescribed by law. The Guidelines presuppose that it is not in every case that the appropriate response to criminal offending is prosecution. As such, the contention that in deciding not to prosecute Mr Cavell the Police acted in a manner not prescribed by law cannot succeed.
• [33] Second, on the evidence before the Court as to the decision not to prosecute, it is apparent that the Police considered the available options, and in the circumstances exercised their discretion to adopt a response that did not include prosecution. While I accept that there is limited information available, I am unable to conclude that the Police have acted in error of law, pursuant to an unlawful general policy, or in ignorance of the Guidelines, except to the extent as identified by Davidson J in S. Put simply, the decision not to prosecute Mr Cavell appears to me to be a justifiable exercise of prosecutorial discretion, a matter in respect of which, the courts do not lightly interfere. I am satisfied that it would not be appropriate to intervene in the present circumstances, as there is no evidence to establish that the Police acted unlawfully.

• [34] It became apparent at the hearing that Mr Lincoln raises a fundamental concern that irrespective of an unlawful agreement to stifle prosecution (or any breach of the NZBORA, which I discuss shortly), any issuing of a Police practice for giving warnings is unlawful because there is no express statutory power or common law authority underpinning it. He cites the principle articulated in Entick v Carrington that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.¹⁷

• [35] The Police’s protocol in relation to warnings is established with the benefit of the guidance provided by Davidson J in S v Commissioner of Police. It is effectively constrained by Davidson J’s finding, including the requirement not to give formal warnings in the absence of an unequivocal admission by an offender. I am not satisfied that in the circumstances it is necessary for me to take this point further in the present case, although I record that I do not consider the position as it now stands is that the Police are unrestrained in their ability to issue formal warnings of the kind in this case.

• [36] I therefore consider that the first and third causes of action advanced by Mr Lincoln must fail.

¹⁷ Entick v Carrington (1765) 18 State Tr 1029.

Were the two formal warnings issued in breach of Mr Lincoln’s right to natural justice?

Mr Lincoln’s submissions

• [37] As to this allegation, Mr Lincoln submits that:

43. ... the absence of any notification or the opportunity to be heard in respect of the agreements to stifle prosecution made between the instrument and [Mr Cavell], prior to these agreements being made, is a breach of the applicant’s right to be notified and heard under s 27 of the New Zealand Bill of Rights Act 1990. This is particularly relevant to the issue of private prosecution where a defendant could potentially argue double jeopardy.

The Attorney-General’s submissions

• [38] Ms Hamill relies on the nature of the Crown’s discretion to prosecute. She submits that the Police have no duty under s 27 of the NZBORA to consult Mr Lincoln about their prosecutorial decisions. She says that in any event, Mr Lincoln was the person who reported the incidents relating to the alleged offending and was therefore given a chance to provide the Police his views and be heard.

Discussion

• [39] In White v Attorney General, when addressing an allegation that there was an obligation on the Police to comply with the rules of natural justice and provide reasons for their decision not to prosecute a party, Associate Judge Bell stated:¹⁸

When Police are investigating possible criminal offending, they are not required to apply the principles of natural justice. That has been upheld in cases where suspects and offenders have alleged a breach of natural justice by the police when investigating alleged offending. Sometimes suspects have complained that the police have not put them on notice of the evidence which the police hold against them. But offenders have consistently failed in their complaints that the police are required to observe the principle of natural justice when investigating alleged offending. Just as offenders cannot [complain] that the police are required to observe natural justice, similarly those who claim to be victims of criminal offending have no greater claim for the police to observe the principles of natural justice.

18. White v Attorney-General [2020] NZHC 740 [62]; see also Deliu v Flanagan [2022] NZHC 262 at [106].

• [40] Likewise, the Court of Appeal in Osborne concluded that there was no obligation on WorkSafe to meaningfully consult with the victims and seek agreement to any proposed decision not to prosecute, and nor did the Victim’s Rights Act 2012 and/or the Guidelines create such an obligation. The Court took the view that it would be wrong for the Crown to fetter its prosecutorial discretion “by making arrangements to bring or to drop a prosecution by reference to the consent of victims”.¹⁹ These findings were not challenged before the Supreme Court.²⁰

• [41] In light of these authorities, I am satisfied that this ground of review must also fail. I conclude that there was no obligation on the Police to consult with Mr Lincoln prior to deciding whether Mr Cavell would be prosecuted. I note further that the Guidelines provide for a prosecuting agency to give reasons for a prosecution decision in a case of significant public interest. I am satisfied that this case is not one of significant public interest. There was no requirement on the Police to consult with Mr Lincoln, nor make any public statement as to their decision not to prosecute Mr Cavell.

Relief

• [42] As Mr Lincoln’s application for judicial review has been unsuccessful, it is not necessary to address the relief sought. However, I observe that the unlawfulness of the formal warnings issued against Mr Cavell has already been remedied in a practical sense by the effect of the decision of Davidson J in S, in which declaratory relief was granted, and subsequently, in this case, by the withdrawal of the formal warnings.²¹ I do not consider this an appropriate case in which any further declaration is warranted.

Result

• [43] For the reasons above, Mr Lincoln’s application for judicial review is dismissed.

¹⁹ Osborne CA, above n 13, at [87].

²⁰ Osborne SC, above n 6, at [18].

²¹ S v Commissioner of Police, above n 3, at [114].

Costs

• [44] The Attorney-General is entitled to costs. If Mr Lincoln and Ms Hamill cannot agree on costs, they may file memoranda in the usual way. Ms Hamill is to file a memorandum within 10 working days of this judgment, no longer than five pages in length together with a schedule. Mr Lincoln will then have a further five working days to file a memorandum of the same length. The Attorney-General may have a further five working days to file a brief reply, should that be necessary. I will decide costs on the papers.

McQueen J

Solicitors:

Crown Law office, Wellington for First Respondent