Criminal Procedure Act 2011, s 26(3) – private prosecution arising out of employment dispute – judicial review of District Court judge’s direction that charging documents not be accepted for filing – procedural misstep by the District Court – does a failure to make a direction under s 26(1)(b) for applicant to file formal statements and exhibits invalidate decisions under s 26(3)(a) and (b)? – is there a substantive reviewable error?
Alkazaz v District Court at Auckland [2023] NZHC 1041 (Campbell J)
Ahmed Alkazaz sought to bring a private prosecution in the District Court against his former employer, Enterprise-IT Ltd, and two of its employees, alleging each had committed perjury at earlier proceedings before the Employment Relations Authority (ERA).
He had unsuccessfully pursued this issue in earlier proceedings before the ERA, the Employment Court, the Court of Appeal and the Supreme Court. He had also referred his perjury complaint to the police, which, relying on the ERA’s determination of insufficient evidence to establish perjury, had advised they would not investigate further.
In support of his proposed private prosecution, Alkazaz filed a detailed affidavit from himself and a brief affidavit from his wife, along with submissions that sought not only punishment of perjury but $10,000 for reputational damage.
Section 26 of the Criminal Procedure Act 2011 controls the commencement of private prosecutions. In this case, the registrar did not accept the charging documents for filing under s 26(1)(a) and, instead, referred the matter to Judge Sharp pursuant to s 26(1)(b).
Section 26(1)(b) envisages that if the charging document is referred to a judge, the judge will make a direction the applicant file formal statements and exhibits. In this case, Judge Sharp did not make any direction for Alkazaz to file formal statements and exhibits. Instead, the judge directed the charging documents not be accepted for filing on the grounds that the material provided was insufficient to justify a trial (s 26(3)(a)), and/or the proposed prosecution was an abuse of process (s 26(3)(b)).
Alkazaz challenged this direction by way of judicial review proceedings.
Judicial review – procedural misstep –Alkazaz not afforded opportunity to file further evidence and exhibits – natural justice – procedural error infects District Court’s conclusion that material provided was insufficient to justify a trial – failure to make s 26(1)(b) direction will not generally affect a judge’s decision to reject a charging document on the abuse of process ground – no substantive reviewable error.
Held: Application for judicial review is dismissed. While the procedural error in failing to make the direction under s 26(1)(b), or otherwise afford Alkazaz the opportunity to file further evidence and exhibits, infected the conclusion under s 26(3)(a) that the material was insufficient to justify a trial, it did not undermine the abuse of process ground of the decision. There is no substantive reviewable error in the judge’s conclusion that the proposed prosecution was an abuse of process. Indeed, it was plainly correct. Alkazaz has repeatedly failed in attempts to pursue his claims of perjury in courts at every level over a number of years. Seeking damages when he first filed the charging documents reinforces that he brought the proposed prosecution for a collateral purpose.
There is no substantive reviewable error in the judge’s conclusion that the proposed prosecution was an abuse of process. Indeed, it was plainly correct. Alkazaz has repeatedly failed in attempts to pursue his claims of perjury in courts at every level over a number of years. Seeking damages when he first filed the charging documents reinforces that he brought the proposed prosecution for a collateral purpose.
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