IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE	
CIV-2018-425-000096
[2020] NZHC 2956	

BETWEEN	EUGENE ANTHONY GREENDRAKE
Applicant	
AND	DISTRICT COURT OF NEW ZEALAND
First Respondent	
AND	WAYNE ALEXANDER MCCONNOCHIE
Second Respondent	

Hearing:	22 October 2020	
Appearances:	Applicant in person
R W Donnelly as Counsel to assist the Court	
Judgment:	10 November 2020	

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 10 November 2020 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 10 November 2020

[1]	On Sunday 19 August 2018, Mr Eugene Greendrake was at his property in the small Southland town of Nightcaps. His two pekin ducks, Drakie and Duckie (also known as Missy) were near the stormwater creek at the entrance to 22 Leithen Street. Mr Greendrake alleges that the owner of 22 Leithen Street, Mr Wayne McConnochie, released his dogs and allowed them to kill Drakie and seriously injure Duckie.

GREENDRAKE v DISTRICT COURT OF NEW ZEALAND [2020] NZHC 2956 [10 November 2020]

[2]	Mr Greendrake prepared charging documents asserting the following (presumably alternative) offences had been committed:

(a)	an  offence  under  s  57(2)   of   the   Dog   Control  Act   1996   by Mr McConnochie making his dog attack his two domestic pekin ducks;

(b)	an offence under s 28 Animal Welfare Act 1999 of wilful ill treatment of two domestic ducks by Mr McConnochie setting his dog on them causing injuries from which Drakie died and injuries which caused Duckie to spend 12 days at a veterinary centre; and

(c)	an offence under s 28A of the Animal Welfare Act of reckless ill treatment of the two domestic ducks, again causing their death and serious injury.

[3]	In a ruling issued on 15 October 2018, Judge M J Callaghan rejected the charges for filing on the grounds there was insufficient evidence to support them.1 Mr Greendrake now seeks judicial review of that decision, and of other actions of the District Court relating to it.

Background

[4]	It was Colin Groube, Mr Greendrake’s neighbour at 23 Leithen Street, who alerted Mr Greendrake to the fact his ducks had been attacked and one of them killed. Mr Groube did not actually see the attack, but he says he saw Mr McConnochie parked in his ute on the driveway outside the gate at 22 Leithen Street.  He also saw the   two ducks in the creek just near the ute. He then went into his house and shortly afterwards he heard an unusual noise. He went out again and saw a dog on the driveway which Mr McConnochie then put into his ute and drove away. There were feathers, blood and  internal  organs  scattered  on  the  ground  outside  the  gate.  Mr Groube and Mr Greendrake found Drakie dead in the creek several metres from the driveway. Duckie was found later with serious rip injuries to her neck.

1	Greendrake v McConnochie DC Invercargill CRI-2018-025-001593, 15 October 2018.

[5]	Mr Greendrake called the police and explained what happened. They referred him to the SPCA and the Council, and he submitted online reports to both organisations.   Both  the  SPCA  and  the  Council  followed  up  by  contacting    Mr Greendrake to discuss what happened with him. They sought contact details for Mr McConnochie but, as Mr Greendrake did not know Mr McConnochie personally, he could not assist. He did, however, obtain Mr McConnochie’s cell-phone number from his neighbour and sent him a text. When he said that he was the owner of the duck killed by Mr McConnochie’s dog yesterday, the reply was “you got the wrong Wayne sorry”.

[6]	On Thursday 30 August, Mr Greendrake got a call from an SPCA staff member. She said she had contacted Mr McConnochie and he denied any knowledge of what happened with the ducks. She also said that it is “very hard to prove what has happened”.

[7]	Unhappy  with  the  progress  he   was   making   with   official   channels,  Mr Greendrake prepared three charging documents and brought them in to the Invercargill Office of the District Court on 4 September 2018. He handed over the three documents and paid the requisite filing fees. Court staff asked him to make some minor changes to the wording of the documents and, upon receiving amended versions from him, filed them into the electronic system with the CRN numbers 18025500426, 18025500427 and 18025500428. The following day he received an email from the District Court saying:

Hi, I have attached the new charges for 1st call, 16 October 2018 @ 9.00 am. Could you please email me your summons and I will ask the Judge how he wants these to be served.

[8]	Mr Greendrake then prepared and emailed the summons to the District Court on 5 September with a covering email saying:

Thank you for registering the charges. Please find two Summons to Defendant forms attached. They are the same but the second has Statement of Service included at the end. The forms are still editable in case you need to amend anything.

Please note that I have not put my details into the “Issued By” section because, as a private prosecutor, I cannot do this according to s28(2) of the Criminal

Procedure Act 2011. I guess somebody at the court needs to issue and sign these forms.

Should you require any further information please do not hesitate to let me know. I look forward to hearing if I need to hire a document service or the summons will be served by a bailiff.

[9]	Because of the uncertainty as to how the summons were to be signed and served, the Deputy Registrar referred this query to a Judge. Judge Saunders then directed as follows:

The provisions of Section 26 of the Criminal Procedure Act applies (sic).

The individual bringing these charges will be required to provide the evidence he relies upon to support these charges.

The informant should indicate whether the Police or Agency that can investigate such allegations of Animal Welfare charges has been informed of these allegations and if they refuse to prosecute based on lack of evidence.

The filing of formal statements under Section 26(1)(b) along with exhibits relied upon will be required to be undertaken to permit a Judge to determine if the summons should issue and is sufficient to justify a Trial.

A summons will not issue until this direction has been complied with and referred to a Judge for a decision.

[10]	Mr Greendrake says he chose to follow the first respondent’s (the respondent) directions, although he considers there was no jurisdiction for the Judge to assess the charges under s 26(1)(b), given the Registrar’s decision to accept the charges for filing. He submitted a letter to the Court setting out the facts he was aware of to support the charges, along with photographs of the scene of the attack, including of the dead drake and the injured duck.

[11]	On 12 September 2018, he received further directions from Judge Callaghan. They said:

1.	Statement of Mr Greendrake contains hearsay evidence.

2.	It is not allowed, unless a formal written statement from Colin Groube is also filed.

3.	The same applies to “Peter”, Nightcaps resident, who will need to file a FWS.

4.	The SPCA appear to be still investigating the allegation. No action can be taken until their enquiry or investigation is complete – need notification of that course.

[12]	In response, Mr  Greendrake  provided  a  formal  written  statement  from  Mr Colin Groube, and from Mr Peter Franklin, the man who had discovered the injured female duck the following day, along with confirmation from the SPCA that they would not prosecute.

[13]	On  1  October  2018,  Mr  Greendrake  learned  that  another  neighbour,  Mrs Beverley Renton, witnessed the whole incident. He asked if she could provide a formal written statement. She asked whether that was necessary. He told her that he did not think it was, as he had already submitted sufficient evidence to justify a trial. However, on 15 October 2018, Judge Callaghan issued a ruling stating that the evidence supplied was not sufficient to justify a trial and declining to accept the charging documents for filing pursuant to s 26(3)(a) Criminal Procedure Act 2011 (CPA).

[14]	On 17 October 2018, Mr Greendrake approached Mrs Renton again, and she provided a formal written statement confirming that she saw Mr McConnochie pull up on the roadway by the entrance to his farm at 22 Leithen Street. Near the entrance were two white domestic ducks which lived at the nearby property. Mr McConnochie opened the crate on the back of the truck and let three dogs out, one of which was a black labrador. Mr McConnochie opened the gate and the dogs rushed out on the ducks and the black labrador ripped one of them. She says she saw Mr McConnochie pick up both the duck that was ripped and the other duck and put them in the drain. He then put the dogs back in the crate and drove off.

[15]	Mr Greendrake sent this further evidence to the Court, with a covering message which said:

While the case was with Judge Callaghan, another witness came forward who saw the actual dog attack. Now because the charges have not been accepted I have obtained FWS from that witness – please find it attached.

Can it please be added to the case and placed before a District Court Judge for reconsideration? I can file the original of the FWS in person should this be required.

[16]	The response received on 19 October from the Judge, via Registry staff, was “The Decision Stands. This evidence was not available at the time of the application”.

[17]	Mr Greendrake responded explaining that:

Because  new,  strong  evidence  has  now  become  available  (in   fact, Judge Callaghan’s ruling to not accept the charges is based on the lack of this sort of evidence), I am seeking to apply for a new consideration in regards to filing the charging documents.

Can you please advise if this requires seeking to file new copies of the charging documents and paying the fee again? The documents would all be exactly the same with just this new evidence added (please see it attached).

[18]	The Judge considered this email and responded through the Registry, as follows:

1.	Mr Greendrake has rights of Appeal.

2.	The evidence available to me at the time of the decision did not support the charges.

3.	The documents shouldn’t be accepted unless the appeal court rules they should be.

[19]	After setting out the Judge’s response, the Deputy Registrar added the following advice; “I have attached a “Notice of Appeal” form for you to fill in and file should you wish to appeal the Judge’s decision”.

[20]	Mr Greendrake undertook some research and discovered he had no right of appeal from a decision to decline charging documents for filing. He only had the right to seek judicial review.2 As a consequence, these proceedings were filed.

The application for review

[21]	Mr Greendrake’s amended statement of claim sets out four causes of action. These are as follows:

(a)	Disregard of statutory obligation;

2	As confirmed in Mitchell v Tyson [2016] NZHC 2210, [2016] NZAR 1545.

The respondent disregarded the obligation in s 33 CPA by failing to issue a summons to the defendant, after having accepted the charging document for filing under s 26(1)(a);

(b)	Application of an inappropriate onus/burden of proof;

In the directions issued on 12 September 2018, the respondent incorrectly required Mr Greendrake to provide evidence that the SPCA was not proceeding with the investigation and said his prosecution could not proceed without that information;

(c)	Disregard of circumstantial evidence;

The respondent erred by rejecting the sufficiency of evidence to support the prosecution on the grounds there was “no direct evidence supporting the charges”, when it is well established that circumstantial evidence can be sufficient. Here, there were seven strands of circumstantial evidence, but the Judge only considered three of them and ignored the other four;

(d)	Misleading conduct;

The respondent advised him that he had rights of appeal in respect of the decision not to reconsider its decision to reject the charges in light of the new evidence, when in fact he had no rights of appeal, only a right of judicial review.

[22]	In respect of all four causes of action, Mr Greendrake seeks a declaration that the respondent erred in the way claimed. As an adjunct to that, he asks that this Court clarify how the District Court should handle the receipt of new evidence after charging documents for a private prosecution have been rejected under s 26 CPA for insufficient evidence. Finally, he seeks that the ruling of Judge Callaghan is set aside and remitted back to the respondent for reconsideration, taking into account the declarations made, if any, and the new evidence.

Private prosecutions

[23]	Shortly  before  this   hearing,   the   Supreme   Court   issued   a   decision,   S (SC 58/2019) v Vector Ltd, which examined, in some detail, the process for commencement of a private prosecution in the District Court and the grounds on which a District Court Judge may give a direction that a charging document not be accepted for filing.3 However, that decision did not address the particular issue which arises here as to what constitutes “acceptance for filing” for the purposes of s 26.

[24]	Section 26 CPA provides as follows:

26	Private prosecutions

(1)	If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—

(a)	accept the charging document for filing; or

(b)	refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.

(2)	The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.

(3)	A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—

(a)	the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or

(b)	the proposed prosecution is otherwise an abuse of process.

(4)	If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—

(a)	notify the proposed private prosecutor that the charging document will not be accepted for filing; and

(b)	retain a copy of the proposed charging document.

3	S (SC 58/2009) v Vector Ltd [2020] NZSC 97.

(5)	Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.

[25]	Under the CPA, a prosecutor can be “any person”.4 However, as the explanatory note to the Bill which was to become the CPA said, the Bill retained:5

The ability for District Court Judges to require a private prosecutor to establish a prime facie case prior to issuing a summons or warrant to arrest … to prevent vexatious and unprincipled private prosecutions from proceeding.

[26]	As is explained in Vector, s 26 provides a preliminary screening process. Section 26(1) envisages that the Registrar may make the decision to accept or reject the charging document without reference to a Judge. This suggests that this is not intended to be an expansive process, nor that all such prosecutions filed will need to be vetted by a Judge. Rather, “[t]his aspect of the statutory scheme supports the view that the scope of the inquiry and the material to be considered are generally confined”.6

[27]	The procedure under s 26 is as follows. The charging document is presented to the Registrar. The Registrar can reject it for want of form (s 26(5)) or for lack of jurisdiction.7 There is then a decision point for the Registrar. Either the Registrar accepts the document for filing or the Registrar refers it to a Judge, who must determine whether it should be accepted for filing. If referred to a Judge, the Judge may direct that the prosecutor files formal statements. The Judge can then reject the charges because there is insufficient evidence,8 or because they are an abuse of process,9 or where there is a lack of jurisdiction.10

[28]	Once the charging documents have been accepted for filing through whichever route, it is obligatory to issue a summons. That is because s 33 CPA provides:

33	Summons to defendant in private prosecution

If the Registrar accepts a charging document for filing under section 26 or the Judge determines that the charging document should be accepted for filing

4	Criminal Procedure Act 2011, s 15.
5	Criminal Procedure (Reform and Modernisation) Bill 2010 (243-1) (explanatory note) at 10.
6	S v Vector Ltd, above n 3, at [49].
7	At [118].
8	Criminal Procedure Act, s 26(3)(a).
9	Section 26(3)(b).
10	S v Vector Ltd, above n 3, at [118].

under section 26, the Judge or the Registrar must issue a summons to the defendant.

[29]	It is worth pausing here to consider how this regime compares with the previous regime under the Summary Proceedings Act 1957 (SPA). As Clark J noted in Mitchell v Tyson, there was no counterpart to s 26(3).11 Instead, under the statutory framework preceding the CPA:12

… [c]ontrols on prosecutions brought with insufficient evidence or for an improper purpose were exercised by other means, for example, refusing to issue a summons when an information was laid or by the Attorney-General staying a proceeding.

[30]	Section 19(1) SPA provided that:

(1)	When an information has been laid, –

(a)	any District Court Judge or Justice or Community Magistrate or any Registrar (not being a constable) may issue a summons to the defendant, in the prescribed form.
(emphasis added)

The use of the word “may” indicated that the Judge or Registrar had a discretion whether to issue a summons.13 It was at that point, that the Judge or Registrar might turn his or her mind to:

(i)	whether the allegation is of an offence known to law, and if so, whether the essential ingredients of the offence are prima facie present;

(ii)	that the offence alleged is not “out of time”;

(iii)	that the court has jurisdiction; and

(iv)	whether the informant has the necessary authority to prosecute.

11	Mitchell v Tyson, above n 2, at [27].
12	At [27].
13	Burchell v Auckland District Council [2012] NZHC 3413, [2013] NZAR 219 at [22].

In addition, the Judge or Registrar could consider whether the allegation was vexatious.14

[31]	Under the CPA, the discretion is exercised at a different stage. It is exercised at the point of filing. Once accepted for filing, the decision to issue a summons inevitably follows, as s 33 makes clear.

[32]	In  light  of  the  current  statutory  provisions,  I  turn  now  to  consider     Mr Greendrake’s first pleaded error of law, which is that the District Court failed to comply with s 33 and issue a summons to the proposed defendant after the charging documents had been accepted for filing.

Did the District Court Judge err by purporting to reject the documents after they had been accepted for filing by the Registrar?

The applicant’s submissions

[33]	In Mr Greendrake’s careful submissions, he notes, first, that r 1.4 of the District Court Rules 2014, defines “to file” as follows:

to file, in relation to a document, means to lodge the document in the form required by these rules in, or to send it by post or electronically in accordance with these rules to, the proper registry (as determined under r 5.1), together with the filing fee (if any) that is payable.

In addition, r 2.3 of the Criminal Procedure Rules 2012 provides:

2.3	How to file document

(1)	Any document other than a charging document may be filed in the court—

(a)	by delivering it to the Registry by hand; or

(b)	by sending it to the Registry—

(i)	by sending it to the Registry’s address for filing; or

(ii)	by sending it to an electronic system used by the Registry.

(2)	Any charging document must be filed—

14	R v West London Justices, ex parte Klahn [1979] 2 All ER 221 at 222-223, and approved by the Court of Appeal in Daemar v Soper [1981] 1 NZLR 66 (CA) at 69.

(a)	by delivering it to the Registry by hand; or

(b)	by sending it to an electronic system used by the Registry.

(3)	If any document is filed in accordance with subclause (1)(b) or (2)(b), the document is filed when it is received by the Registry.

(4)	The Registry must acknowledge receipt of any document filed by a person or party sending it electronically.

(5)	A Registrar may require that any document filed by a person or party sending it electronically must also be filed in hard-copy form.

(6)	A Registrar may require that, where a copy of any affidavit or other document that is required to be sworn is filed, the original also be filed.

(7)	If a Registrar has any doubt as to whether any document may be accepted for filing or must be treated as filed, he or she may refer the matter to a Judge, and the Judge may give a direction disposing of the matter.

[34]	Applying these rules, Mr Greendrake says receipt of the filed charging documents was acknowledged by the  Deputy  Registrar  sending  him an  email  on 5 September 2018, which attached scanned copies of the charges now containing CRN identification numbers, advising him of the first call date, and asking him to email her his summons.

[35]	He says that the Deputy Registrar did not indicate any doubt such as would require reference to a Judge under r 2.3(7). The fact they were accepted for filing is supported by the allocation of CRN and CRI numbers to the proceedings. He points out that r 1.4 of the Criminal Procedure Rules defines “CRN” as “a criminal record number for a charge”. Similarly, the glossary of terms available on the Ministry of Justice website records:15
A Court Record Number (CRN) is a unique number assigned to a specific and singular charge laid by the prosecutor.

A CRN is distinct from a CRI because a CRI is a system generated unique reference number assigned to a proceeding, not a specific and singular charge. A CRI can contain numerous CRNs belonging to any number of defendants.

15	Ministry of Justice “Glossary of Terms” - www.justice.govt.nz/courts/going-to-court/without- a-lawyer/representing-yourself-criminal-high-court/glossary-of-terms/

Although the terminology is slightly different (“court” as opposed to “criminal”), the inference is that the charge must have been accepted by the Court to have a CRN allocated.

[36]	Additionally, he points out that the form of the charging document states “filed in the District Court …” followed by two fields; “CRN” and “on”. This suggests that those fields are only to be filled-in when the document is filed and the pre-requisite of that is that it has been accepted for filing. Thus, Mr Greendrake submits that filing the document and assigning a CRN are inseparably linked. There cannot be a charging document with a CRN if it has not been accepted for filing. Thus, assigning a CRN demonstrates the acceptance of a charging document for filing.

[37]	Furthermore, he points out that in a range of judicial review cases of s 26(2) decisions, where the charges were accepted for filing,  the  case  generally  has  a CRI number assigned to it.16 Conversely, in cases where the charges were rejected, there is no mention of CRI numbers for the District Court cases.17 He says his case is the only one he could find where the charges were rejected and, yet, had been allocated a CRI number. He says this oddity can have only one explanation: that the charges had been, as a matter of fact and law, accepted for filing.

Submissions of counsel to assist

[38]	Mr Donnelly was appointed by the Court to act as contradictor. He points out that the definitions relating to the filing of documents in the District Court Rules and the Criminal Procedure Rules, and which suggest a charging document is deemed to be filed when it is lodged (that is, delivered to a Registrar by hand or sent electronically), would not accord with the proper statutory interpretation of s 26. Instead, s 26 should be considered with reference to the statutory scheme, its text and purpose. That would be foiled if physical acceptance of the charging document constituted filing.

16 For example; Wang v Wang DC North Shore CRI-2013-044-001780, 2 July 2014, and Rickard-Simms   v    Hall’s    Refrigerated    Transport    DC    Porirua    CRI-2018-091-001711, 7 September 2018.
17       For example; Mitchell v Tyson  [2016] NZDC 3514; Prescott v Denmead  DC North Shore,        27 January 2017.

[39]	Mr Donnelly also rejects the suggestion that administrative tasks undertaken by the Registrar, such as allocating CRN and CRI numbers, constitute acceptance for filing. He points out that s 27 CPA provides that:

Nothing in this Act prevents a Registrar compiling the information in any 1 or more charging documents in any manner or form –

(a)	that enables the information to be accessed or used as authorised or required by this Act; or

(b)	for the purposes of maintaining the permanent court record of the proceeding; or

(c)	for any other reason of administrative convenience.

In his submission, the administrative act of allocating a CRN or CRI number could not preclude the charges being referred to a Judge and being rejected, if one or more grounds under s 26 is established.

[40]	Furthermore, while he acknowledges that some of the Deputy Registrar’s conduct was consistent with acceptance of the documents for filing, that is not determinative of the matter. He points out that in Siemer v Registrar of the Supreme Court, a Deputy Registrar indicated that an appeal was still live when in fact it had been deemed to have been abandoned at a prior date.18 The Deputy Registrar’s actions were held to have no bearing on the true legal position.

[41]	Mr Donnelly submits that ss 26 and 33 should be read as setting out a single process which ends with the issuing of the summons. In this case, the Deputy Registrar had not issued a summons to the proposed defendant under s 33 of the Act and, therefore, the process under s 26 was not closed off. Service of a summary is an identifiable action which conveys to a would-be prosecutor that the charging document has been accepted for filing and it should only be at that point that the Registrar is deemed to have accepted the documents for filing.

[42]	He also cautions against adopting a rigid approach to interpretation of these sections as suggested by Mr Greendrake and instead endorses the description used by the minority in the Vector decision of s 26 being a “flexible” process in order to

18	Siemer v Registrar of the Supreme Court [2020] NZCA 360.

navigate the variety of circumstances in which private prosecutions are filed.19 He notes that private prosecutions are now relatively rare and Court staff will have few encounters with such prosecutions. Adopting the prescriptive approach sought by  Mr Greendrake could see a Registrar inadvertently accepting a charging document for filing by virtue of taking some preliminary administrative steps, and before realising it is appropriate to refer it to a Judge, which would be contrary to achieving the purpose of s 26.

[43]	In any event, even if this Court establishes there was a reviewable error, the relief need not extend to invalidating the decision. The effects of the procedural irregularity should not be seen as requiring that decision to be set aside, if that decision was otherwise appropriate.

Discussion

[44]	While I accept that the mere physical receipt of charging documents, and even the allocation of a CRN or CRI number to those documents, should not preclude review of charging documents by a Judge, I do not accept that the s 26 process continues to be available until a summons has been served.20 Reading ss 26 and 33, it is clear that there is a two-stage process. Either the Registrar or the Judge must accept the charges for filing. Once they have been accepted for filing, then a summons must issue.

[45]	Looking at the actions of the Deputy Registrar in this case, I am satisfied they constitute acceptance for filing. At no stage did she consider there were circumstances which warranted referral to the Judge under s 26.   While she had engaged with      Mr Greendrake over the initial wording of the charges, it was clear that when they were amended, she was satisfied that the documents, on their face, were in a suitable form for filing and she dealt with them accordingly. That conclusion follows from the totality of steps she took, including to allocate CRN and CRI numbers and to set a

19 S v Vector Ltd, above n 3, at [129].
20 I note in Mitchell v Tyson, above n 2, at [20], a CRI number had been allocated even though the charges had been referred to the Judge under s 26(1)(b), supporting my view that this administrative step can not constitute filing if the Registrar chooses to refer the document to a Judge under s 26(1)(b).

first call date, and critically, the decision she made to progress the issue of a summons. That can only occur once the documents have been accepted for filing.

[46]	What  distinguishes  this  case  from  the  case  of  Siemer  referred  to  by   Mr Donnelly is that in Siemer the Deputy Registrar had no authority to determine the legal position, whereas under s 26(1)(a) the Registrar has express power to accept the documents for filing.

[47]	In this case, the Deputy Registrar did not refer the charging documents to the Judge under s 26(1)(b) CPA. It was only Mr Greendrake’s query about the proper course for signing and serving a summons in a private prosecution, that prompted the Deputy Registrar to refer that question to a Judge. It was the Judge who then unilaterally decided to revisit her decision. At that stage, I do not consider he had jurisdiction to do so.

[48]	While I note Mr Donnelly’s concerns that inexperienced staff may not realise the consequences of their administrative actions until too late, that is not a reason to circumvent the statutory scheme which, as Vector says, envisages a mere preliminary screening exercise at the point of filing the change, not an expansive one.21 There are other safeguards which can be exercised at a later point if the prosecution is defective, including striking the proceedings out as an abuse of process, or dismissing the charges under s 147 CPA.

[49]	Accordingly, I am satisfied that the Deputy Registrar, having reached the point where she was facilitating the issue of a summons, had accepted the documents for filing under s 26(1)(a). The Judge no longer had the power to reject the documents under s 26(1)(b) and a summons should have issued.

[50]	As this error of law was pivotal to the ability of Mr Greendrake to continue his prosecution, I consider it is appropriate to make the following declaration:

21	S v Vector, above n 3.

(a)	The charges, having been accepted for filing by the Deputy Registrar under s 26(1)(a) CPA could not be rejected by a Judge under s 26(1)(b), and the requirement to issue a summons under s 33 was triggered.

[51]	I defer considering the balance of the relief sought until after addressing     Mr Greendrake’s other causes of actions, as the discretion to grant relief is directly linked to the merits of the prosecution.

Application of an inappropriate onus/burden of proof

[52]	The issue in dispute under Mr Greendrake’s next cause of action is whether the Judge erred in law by requiring him to provide evidence from the SPCA of its intentions before proceeding to make a decision under s 26(2), and by saying “no action can be taken until their enquiry or investigation is complete”.

[53]	Mr Greendrake acknowledges that the SPCA has, as one of its functions, the investigation and prosecution of crimes under the Animal Welfare Act 1999. He points out that he did report the incident to the SPCA before resorting to act as a private prosecutor himself and that it was possible that the SPCA could be intending to commence its own private prosecution which would then duplicate his. His particular objection is to the terms of the Judge’s instruction which suggested that his prosecution must be  deferred  until  and  unless  the  SPCA  chose  whether  to  prosecute.  In  Mr Greendrake’s submission the criminal law does not provide for a preferential system of charging, and charging documents should be handled on a first-come, first-served basis. If a private prosecutor has already presented evidence sufficient to pass the check at s 26(2), there was no jurisdiction to await another potential prosecutor to make up their mind. In short, Mr Greendrake argues that the intentions of the SPCA were irrelevant to the s 26(3) decision.

[54]	Furthermore, Mr Greendrake points out that if he had been unable to get information about the SPCA’s intentions (given they had no obligation to provide him with that information), the Judge’s direction meant his prosecution could not have proceeded, whether or not it was otherwise sufficient. In his submission, even if the intentions of the SPCA were relevant to the decision under s 26(2), the Judge should

not have directed that in the absence of this information, his prosecution could not proceed, and the statement made to that effect was erroneous in law.

Submissions of counsel to assist

[55]	Mr Donnelly acknowledged, as the Supreme Court held in Vector, that the focus of s 26(1)(a) should be on the prime facie sufficiency of the evidence said to justify the charging document or documents, and broader questions such as the appropriateness of a proposed prosecution or whether it would serve any useful purpose should be dealt with in other ways. However, that is not to say that evidence of wider issues cannot be obtained by a District Court Judge.   For example, under    s 26(3)(b), the Court can consider whether the proposed prosecution is an abuse of process. Given the SPCA’s particular interest in enforcing statutes relating to animal welfare, it could not be considered an error for the Judge to seek information about whether the SPCA was proceeding with an investigation and prosecution.

[56]	Mr Donnelly points out that while Mr Greendrake raises the prospect that he may not have been able to obtain the information sought from the SPCA, that is not what occurred here and so the point is moot.

Discussion

[57]	In considering whether to accept the charges for filing, I do not consider the District Court was in error when it sought information as to whether the SPCA was investigating the matter and intending to prosecute. If it was going to prosecute, then the duplication of charges would be an abuse of process.

[58]	The balance of Mr Greendrake’s concerns are moot. The Judge did not defer Mr Greendrake’s prosecution but went on to consider it. We also do not know what the Judge would have done if the SPCA had declined to comment. The Judge’s direction appears to have been given on the assumption (which proved correct) that the SPCA would provide this advice.

[59]	Thus, while, in theory, there may be substance to Mr Greendrake’s concerns, these are not concerns which eventuated in this case and I decline to make a declaration.

Did the Judge err in failing to take into account circumstantial evidence?

[60]	Mr Greendrake identifies seven “strands” of circumstantial evidence which his prosecution initially relied on. These are:

(a)	the two ducks used to wander around the neighbourhood;

(b)	the spot where the feathers, blood and internal organs were scattered was on both sides of the gate to the defendant’s land;

(c)	the defendant was seen at the spot shortly before and immediately after the ducks were injured and killed, and in the meantime, an unusual noise was heard;

(d)	when he was seen immediately after the alleged attack, the defendant was putting a dog into his vehicle;

(e)	photos taken by Mr Greendrake shortly after the incident show that the ducks were ripped;

(f)	the wound on the neck of the second duck looked like a bite;

(g)	the next day after the incident the proposed defendant refused to communicate with him about what happened, let alone admit that he was the right person to talk to by saying “you got the wrong Wayne sorry”.

[61]	Mr Greendrake says that of those seven strands of evidence, the Judge only mentioned the second, third and fourth; the balance were not considered at all.

[62]	Mr Greendrake takes no issue with the Judge’s expression of the legal test to be applied for sufficiency of evidence. He is, however, critical of how the Judge applied it in this case. He says the Judge held that none of the evidence supported the elements of the charge directly and that the lack of direct evidence warranted rejecting the charging documents. The Judge must therefore have assumed that direct evidence was required to support the elements of the charge in order to pass the test for sufficiency to justify a trial and this premise is plainly false. He points out that criminal trials are often based solely on circumstantial evidence and that a number of strands of circumstantial, or indirect, evidence can be sufficient to prove a case beyond reasonable doubt. Furthermore, Mr Greendrake points out that the test under s 26(3)(a) simply refers to the evidence being “insufficient to justify a trial”. As Cooke J noted in Goodman Fielder New Zealand Ltd v District Court at Porirua:22
Given the generally more limited role that I see s 26 as having, particularly compared with the role performed by s 147, the assessment is unlikely to involve the same rigour that would arise after a contested argument. The screening process that s 26 involves requires a check that the proposed prosecutor has sufficient evidence to justify commencing criminal charges that will proceed to a trial.

Mr Greendrake says his evidence readily met this test.

[63]	Mr  Greendrake  also  argues   that   the   Judge’s   decision   is   “unjust”.   Mr Greendrake’s reasoning on this issue starts with his submission that indirect evidence can be sufficient to support a charge, but he also suggests that the Judge did not approach this case with an open mind and the decision which resulted was “an egregious attempt to turn away an odd citizen who dares to exercise his right to prosecute privately”.

Submissions of counsel to assist

[64]	Mr Donnelly’s submissions on this issue are straightforward. He says the Judge did not disregard the potential force of circumstantial evidence. The Judge’s acknowledgement that the evidence raised a “suspicion” that the dog caused the injuries, and death, of the ducks, clearly accepts the effect of the circumstantial

22	Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599 [2019] NZAR 489 at [70].

evidence. The Judge did not say there was no evidence supportive of the proposed prosecution case, but simply that the evidence was insufficient. Mr Donnelly noted that the Supreme Court in Vector held that “ultimately, the question is whether assessed on a prime facie basis, the evidence is sufficient to prove the elements of the charge to the required standard”, and the Judge addressed that test.23

Discussion

[65]	Judicial review differs from an appeal where I am able to substitute my own decision for that of the decision-maker if I have come to a different view on the evidence. On an application for judicial review, the decision can only be set aside if:

(a)	the Judge erred in law, or in fact in coming to his decision, including taking into account irrelevant considerations and ignoring relevant considerations; or

(b)	there was some procedural impropriety; or

(c)	the Judge reached a decision that no reasonable decision-maker could have reached in concluding that the evidence was insufficient to justify a trial.

[66]	The error of law alleged is that the Judge assumed that direct evidence was required to support the charge. However, I do not think that is a proper inference to be drawn from the decision. The decision implicitly acknowledges the relevance of circumstantial evidence, by saying that in this case, it went some way to proof of the charge. However, the Judge did not consider that it was sufficient to meet the threshold. While another Judge might have come to a different decision on the evidence, I am not satisfied that the Judge did so erroneously thinking that direct evidence was necessarily required, nor can I say that the decision reaches the threshold of being one that no reasonable Judge could have made. Indeed the SPCA independently appear to have come to the same view.

23	S v Vector Ltd, above n 3, at [85].

[67]	While Mr Greendrake characterises the decision as “unjust” he raises no evidential threshold for the suggestion the Judge was unfairly disposed against him and I do not consider this claim further.

[68]	Accordingly, this cause of action fails.

Misleading conduct

The applicant’s submissions

[69]	This ground of review relates to the Judge’s advice that he would not consider the new evidence, but that Mr Greendrake had “rights of appeal”, a view which was reinforced by Registry staff forwarding Mr Greendrake a notice of appeal form.     Mr Greendrake raises two issues here:

(a)	whether the Judge was correct to refuse to reconsider the charges for filing; and

(b)	the fact he received erroneous advice about his rights to challenge that decision.

[70]	In terms of reconsidering the charges for filing, Mr Greendrake acknowledges the principles of finality and of double-jeopardy but submits that those principles should not apply to a decision to reject charging documents under s 26 CPA. This is because that procedure is designed merely as “a sifting process designed to protect the proposed defendant from an unnecessary or wrong prosecution”.24 At the s 26 stage, there is no criminal proceeding on foot. Thus, the Judge would not have been violating principles of finality or double-jeopardy and could have exercised his discretion to reconsider the charging decision in light of the further evidence.

[71]	Alternatively, the Judge could have directed that the charging documents needed to be presented for filing again, with payment of the filing fee, particularly as

24	Goodman Fielder New Zealand Ltd v District Court at Porirua, above n 21, at [19], citing H T v District Court at Auckland [2015] NZHC 972 at [17].

Mr Greendrake had explicitly enquired whether this was a requirement for getting the new evidence considered.

[72]	However, instead, the Court denied any possibility for accepting the evidence “unless the appeal court rules”. In Mr Greendrake’s view, he was effectively turned away without any further option for justice. To do that was inconsistent with the principle that discretionary powers granted by Parliament should be exercised in good faith.25

[73]	Mr Greendrake then argues that the Judge’s statement that Mr Greendrake had rights of appeal was a procedural direction and as such is reviewable. It was clearly in error, as there is no right of appeal from s 26 decisions and judicial review is the only available remedy.26 By way of relief he seeks that I make a declaration to this effect.

Submissions of counsel to assist

[74]	Mr  Donnelly  submits   that   after   the   Judge   issued   his   decision   on  15 October 2018, the proposed prosecution came to an end. In the absence of an express statutory power to reconsider an earlier decision, there is no ability for a court of statute, such as the District Court, to do so.

[75]	While there is an ability in the criminal jurisdiction to recall a decision for reconsideration, that should only be in exceptional circumstances and it is not appropriate to do so where there is an attempt to relitigate the substance of the matter, even based on further information being provided. He acknowledges, however, that Mr Greendrake could have sought to file fresh charging documents with the new evidence.

[76]	Mr Donnelly rejects the suggestion that the erroneous reference to rights of appeal was a decision of the District Court. In his submission, it was simply a statement made in the course of rejecting the implied request to recall and reconsider

25	Chesterfields Preschools Ltd v Commissioner of Inland Revenue (2007) 23 NZTC 21,125 (HC) at [40].
26	Mitchell v Porirua District Court [2017] NZHC 1331, [2017] NZAR 1077 at [22].

the original decision. It was in the nature of an obiter remark and not a reviewable determination.

[77]	Even if it was a reviewable decision, counsel submits that no relief should follow. Mr Greendrake did file an application for judicial review within two months of the Judge’s decision, so no prejudice resulted and there would be no benefit obtained in making such a declaration given it is clear no appeal rights exist from a decision under s 26 CPA.

Discussion

[78]	The general rule is that a judgment, once delivered, must stand for better or worse, and a judgment (which includes a procedural ruling such as this),27 must normally be treated as final subject only to rights of appeal (where they exist), or judicial review.28

[79]	These principles are reflected in the District Court Act 2016 which provides at s 116:

(1)	A judgment or an order of the court is final and conclusive between the parties.

(2)	Subsection (1) is subject to this Act, any other enactment, and the rules.

[80]	The term judgment is defined broadly in the rules as including “a degree or decree or order of the Court”29 and may “deal with any question or issue”.30

[81]	There are limited powers to revisit a judgment. District Court r 11.9 provides that “[a] Judge may recall a judgment … at any time before a formal record of it is drawn up and sealed”. However, the categories of cases in which a judgment, not perfected, may be recalled are limited. They are:

27	District Court Rules 2014, r 11.2(c).
28	Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, Craig v Williams [2019] NZSC 60 at [10].
29	District Court Rules, r 11.1.
30	Rule 11.2(c).

(a)	since the judgment there has been an amendment to a relevant statute, regulation or new judicial decision of higher authority;

(b)	where counsel have neglected to direct the court’s attention to a statute, regulation, or judicial decision of plain relevance; or

(c)	where for some other very special reason justice requires that the judgment be recalled.31

[82]	There is also an express provision in District Court r 11.10 to correct an accidental slip or omission, which is not relevant in this case.

[83]	However, the principles of finality which these provisions are designed to protect do not apply, with the same force, to the preliminary screening decision which is envisaged under s 26 CPA. While the Court should decline to reconsider a decision rejecting charging documents for filing where no change of circumstances arises, I can see no reason for rejecting a request to reconsider the filing of a charging document, where the private prosecutor believes he or she has addressed the shortcoming in evidence which was the reason for rejecting the charges in the first place. It is, in effect, a fresh attempt to file the charges based on further evidence. This does not offend the principle of finality. There is no other party engaged at that stage, nor is the Judge determining the same issue because he or she now has different evidence before them.

[84]	There was therefore nothing to prevent Mr Greendrake refiling the charges on the basis he now had further evidence, and the District Court assessing afresh the issue of whether the charges should be accepted for filing.

Relief

[85]	Mr Greendrake seeks relief on all his causes of action, whether or not the issue he raises in fact caused him any detriment. He sees the process of judicial review as

31	Horowhenua County v Nash (No 2), above n 28, at 633.

having an educative purpose and as mitigating against the risk of future error when processing private prosecutions.

[86]	I accept this Court has a role, on review, in identifying error. However, that error must, in the general course, be material to the decision being challenged, which here is the decision to reject the charging documents. Hypothetical scenarios, such as the Judge refusing to accept the charges without information about the SPCA’s position, are not normally amenable to review. As O’Regan P said:32
It has long been the case that the Courts will normally decline as a matter of discretion to issue a declaration in a case in which the factual context is either hypothetical or a prediction of future events.
(footnote omitted)

[87]	In applying those principles to these proceedings, I have already determined that there was an error in the Judge invoking the power to reject the charges under    s 26(1)(b), when the charges had been accepted under s 26(1)(a) and made a declaration accordingly. The more important question from Mr Greendrake’s perspective is whether I should also set aside the decision in which the Judge did reject the charges.

[88]	While Mr Donnelly says if the Judge’s decision is correct, then it would be inappropriate to reinstate the charges, I consider that must be determined in light of the further evidence which Mr Greendrake obtained shortly after the Judge issued his decision.

[89]	While in some circumstances, it would be sufficient simply to set aside the District Court Judge’s decision and order the filing of the charges be reconsidered, there are two reasons why that would not be appropriate in the present case:

[90]	First, the correct legal position is that the charges were accepted for filing prior to the Judge’s determination. If the decision is set aside, then the legal consequence is that the charges were filed no later than 5 September 2018 and they can continue to be processed. Second, it is now too late now to file the charge under the Dog Control

32	Omaha  Beach  Residents’  Society  (Inc)  v  Townsend  Brooker  Ltd  [2010]  NZCA  413, [2011] NZRMA 1 (CA) at [46].

Act 1996. It had to be filed within six months of the events which constituted the offence.33 Unless the charges are reinstated as at the date Mr Greendrake tried to file them, he would be unable to pursue that charge.

[91]	Accordingly, I consider the proper course of action is to set aside the Judge’s decision rejecting the charges under s 16(2) Judicial Review Procedure Act 2016 and make the declaration which I have set out at [50] above. This has the practical effect of confirming the charges were accepted for filing, and allowing the prosecution to proceed.

Result

[92]	The Judge’s decision rejecting the charges for filing under s 26(1)(b) CPA is set aside. As confirmed by the declaration set out at [50] above, the charges were accepted for filing on 5 September 2018.

Copy To:
Mr Greendrake
Preston Russell Law, Invercargill

33	Criminal Procedure Act, s 25(3)(a).