ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF M PROHIBITED BY S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.
SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html	
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2024-485-21
[2024] NZHC 2701	

BETWEEN	KATHERINE RAUE
Appellant	
AND	M
Respondent	

Hearing:	4 June 2024	
Appearances:	Appellant in person (supported by Ms Chambers) K R Smith and S A Avery for Respondent	
Judgment:	18 September 2024	

JUDGMENT OF McQUEEN J

[1]	Ms Raue seeks leave to appeal the District Court judgment dismissing a charge against M under s 147 of the Criminal Procedure Act 2011.1 If leave is granted, the Court is required to determine the appeal.

[2]	Leave to appeal is declined and the appeal is dismissed.

Background

[3]	Mr Te Ringa Mangu Mihaka sought to bring a private prosecution against M for misuse of a telephone on 12 March 2020, pursuant to s 112(2) of the

1	The respondent was granted permanent name suppression in the District Court: Raue v [M] [2024] NZDC 4755. Accordingly I have anonymised her name in this judgment.

RAUE v M [2024] NZHC 2701 [18 September 2024]

Telecommunications Act 2001. A direction was made in the District Court that the charging document be accepted for filing, under s 26 of the Criminal Procedure Act.2

[4]	The alleged offending underpinning the charge may be briefly described as follows.3 Mr Mihaka and Ms Raue (and others) met with M on 4 March 2020 at Ministry of Health offices to raise a complaint about the provision of mental health services to kaumatua and kuia in the Far North, including the misuse of personal information. At that time, M was an employee of the Ministry of Health (the Ministry).

[5]	On 12 March 2020, M is said to have called the mobile phone shared  by    Mr Mihaka and Ms Raue numerous times, as well as sending over 50 text messages containing disturbing and offensive content from her mobile phone. It is said the mobile phone number matches that listed on M’s official emails from her work profile with the Ministry. In these communications, it is said that M claimed to be someone else. That person denies any involvement in the communications.

[6]	The purpose of the calls is alleged to have been to obstruct the Ministry’s processes for investigating and resolving complaints.

[7]	Unfortunately, Mr Mihaka became unwell and later died. Ms Raue was substituted as prosecutor in relation to the charge against M.4

[8]	M applied to the District Court to have the charge dismissed and/or stayed under s 147 of the Criminal Procedure Act (the s 147 application). That application was heard on 11 December 2023. Ms Raue appeared in person. Counsel appointed as amicus also appeared. The charge was dismissed.5 Ms Raue now appeals that decision.

Decision under appeal

[9]	In a decision dated  4 March  2024,  the  District  Court  Judge  noted  that  the s 147 application was made on several bases but the only basis which he wished

2	Mihaka v [M] DC Wellington, 1 September 2020 (Direction of Judge Hastings).
3	This is drawn from the summary of facts prepared by Mr Mihaka.
4	Mihaka v [M] DC Wellington CRI-2020-085-1908, 19 May 2023 (Minute of Judge Black).
5	Raue v [M] [2023] NZDC 27945.

to address was the question of abuse of process on the grounds of delay, no useful purpose being served by the prosecution, and improper collateral purpose.

[10]	The Judge noted that there had been a significant number of procedural steps in the matter to get to the point of the s 147 application. The Judge observed that very significant resource had been expended by both the defence and the Court in trying to get the matter to a point where it was ready for trial. Any trial would likely not take place until mid-2024, so four years after the alleged offending. His Honour concluded that while there had been delays in the proceedings for a number of reasons, Ms Raue and Mr Mihaka ultimately bore responsibility for the conduct of the prosecution. The Judge considered that the delay of four years since the time of the alleged offending was too great and impacted M’s fair trial rights such that it would be wrong for her to face trial on these matters. The Judge also found there was no public interest in conviction for the alleged offending, as the circumstances of the alleged offending do not justify a trial and M would deserve only nominal punishment if convicted, and thus continuing the prosecution would serve no useful purpose.

[11]	Finally, the Judge concluded that, on her own submission, Ms Raue was attempting to use the prosecution as providing a basis for pursing further action against other entities or people in relation to the same set of facts, and this amounted to an abuse of process. The Judge had previously directed that if this was Ms Raue’s intention, she should file the relevant charging documents by 29 July 2022. However, no such documents were presented, and therefore the Judge considered that any attempt to now bring further charges arising out of the same facts would also be an abuse of process.

[12]	Given these findings, the Judge dismissed the charge.

The notice of appeal

[13]	Ms Raue filed a notice of appeal dated 21 March 2024, which states that the grounds of appeal are under s 27(1) and subs (2) of the New Zealand Bill of Rights Act 1990 and include:

(a)	Appeal or retrial is in the interests of justice.

(b)	The offending is serious.

(c)	There are numerous victims of the offending.

(d)	There have been numerous irregularities during pretrial fixtures which have prejudiced and disadvantaged the prosecutors.

(e)	The matter involves serious corruption by a government official using an official phone.

[14]	The notice of appeal also states that it challenges an exercise of judicial discretion as the Judge used the wrong principles, failed to take account of relevant matters, took account of irrelevant matters and was plainly wrong.

[15]	A telephone conference was held before Grice J on 11 April 2024 to review the appeal and make necessary timetabling orders. Her Honour recorded that leave is required to appeal and that this had not been sought. The timetable orders state that the submissions to be filed were to deal with both the leave application and the appeal. Grice J indicated that Ms Raue may wish to seek legal advice. Her Honour did not consider it appropriate for the Court to appoint counsel to assist Ms Raue in the appeal.

Legal principles for an appeal against a decision under s 147 of the Criminal Procedure Act

[16]	There is no general right to appeal a decision under s 147 of the Criminal Procedure Act. Section 296(2) of the Criminal Procedure Act provides that the prosecutor or defendant may, with the leave of the appeal court, appeal on a question of law against a ruling by the trial court. It is established that there is jurisdiction for a prosecutor to seek leave to appeal against a dismissal of a charge under s 147.6

6	Criminal Procedure Act 2011, s 296(3); and Lyttle v R [2019] NZCA 329 at [35].

[17]	There are no statutory criteria under s 296 that specify when leave can be granted. Nor has any test emerged from case law, except that there must be a properly identified and arguable question of law.7

[18]	For s 296 purposes, the Court of Appeal has held that a question of law arises when there is a misdirection of law apparent in the decision; an oversight of a relevant matter or consideration of an irrelevant matter; or a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.8 The Court of Appeal went on to hold that an error of law may also arise when a decision is plainly wrong.9

[19]	In an appeal of this kind, I may substitute my view of the merits only if satisfied that the District Court Judge erred relevantly in law.10

Parties’ positions

Ms Raue

[20]	Ms Raue set out her perspective on the history of this matter. Ms Raue emphasises that her goal in pursuing the prosecution is to have the facts determined. She seeks a declaration (in effect) that she is not the liar, rather it is M who is not admitting her wrongdoing, which is contrary to tikanga. Ms Raue explains that she is a public figure (as was Mr Mihaka) and thus pursuing this prosecution is important to clear her name and restore her mana. Ms Raue says that this is more important to her than any penalty that might be imposed on M.

[21]	Ms Raue submits that discharging M of such serious offending is a breach of tikanga, makes a mockery of te Tiriti o  Waitangi,  and  breaches  s 27(1)  of  the New Zealand Bill of Rights Act. Ms Raue sought to provide me with details of when she was prosecuted for misuse of a telephone, in 2007, noting that she was ultimately

7	Police v Moheed [2017] NZHC 83 at [17] citing Solicitor-General v Mohib [2016] NZHC 1908 at [35] and Police v Paki [2014] NZHC 3112 at [17].
8	R v Taulapapa [2018] NZCA 414 at [17] citing R v Smyth [2017] NZCA 530 at [8] citing Brown v R [2015] NZCA 325 at [16]. See also Maid v R [2024] NZCA 84 at [23].
9	R v Taulapapa, above n 8, at [17] citing R v Malu [2017] NZCA 546 at [10(c)]; and Commerce Commission v Shukla HC Auckland CRI-2007-404-229, 21 November 2007 at [3].
10	R v Taulapapa, above n 8, at [18].

acquitted on all charges. Ms Raue contends that the Police have corruptly exercised their discretion in not charging M in relation to the alleged offending, in contrast to how Ms Raue was earlier treated. Ms Raue explains that she cannot afford to instruct a lawyer and legal aid was not available to her for a private prosecution.

[22]	Ms Raue says that she has always been ready to proceed with the trial and that M repeatedly failed to appear and was given unfair indulgences by the District Court. Ms Raue accepts there was some delay as she made a request under the Official Information Act 1982 to confirm that the calls were made from a phone belonging to M, and that she had to involve the Ombudsman. As Mr Mihaka became ill and then died, Ms Raue was also busy caring for him.

[23]	Ms Raue contends that M continues to offend in a similar manner, most recently on 18 May 2024. Ms Raue says that she intends to file further charging documents in relation to this. Ms Raue also intends to file all relevant documents with the Waitangi Tribunal Justice Kaupapa Inquiry. Ms Raue says that utu requires that this matter is put right. She says she will take all steps necessary to achieve justice.

[24]	Ms Raue submits that the public interest in the matter arises from the alleged offending by a senior public official in the context of a matter of Māori governance, in which she says the Crown has interfered. This appears to relate to the Ministry funding of a mental health organisation that Ms Raue and others say should not have been funded. She argues that M’s motivation for the calls was so that complaints against the Ministry would be withdrawn.

[25]	Ms Raue also seeks the removal of the order for permanent suppression of M’s name, although she has not filed an appeal against that decision.11 Ms Raue says that she should be able to share information with her whānau.

M

[26]	Mr Smith, counsel for M, submits that Ms Raue must obtain leave to appeal, as required under s 296(2) of the Criminal Procedure Act, and that she has failed to

11	Raue v M, above, n 5.

identify a question of law, as is also required.12 He says that this puts her in the position of having to seek leave to appeal out of time, to seek leave to appeal on a question of law. Mr Smith submits that the Court should not exercise the power in s 299 of the Criminal Procedure Act to amend or restate any question of law, as it is not necessary or desirable to do so.

[27]	Mr Smith also submits that, in any event, there is no error in the District Court decision dismissing the charge on any of the three grounds identified by the Judge. He emphasises that M also has a right to justice under the New Zealand Bill of Rights Act and there has been considerable delay to the point that her fair trial rights are impacted. Mr Smith submits that Ms Raue has another agenda, being the Ministry’s conduct and a claim for breach of the Treaty of Waitangi. He suggests that while those matters may give rise to a public interest, that is not the case for the charge against M which is not a serious offence. Mr Smith submits that in any challenge to the Judge’s exercise of discretion, Ms Raue must identify the respects in which the judgment is said to be in error and bears the onus of satisfying this Court that it should differ from the Judge’s decision.13

Leave to appeal

[28]	I explained to Ms Raue that there must be a properly identified and arguable question of law for me to consider, as without one, I have no jurisdiction to consider the appeal, given the terms of s 296 of the Criminal Procedure Act.

[29]	Ms Raue proposed that the question of law is whether the District Court Judge properly exercised his discretion to dismiss the charge. In essence, Ms Raue says that the Judge was wrong in his decision. In her view, the delay in prosecuting the claim is explicable (and not all her or Mr Mihaka’s fault) and there is a public interest in the prosecution being completed. Ms Raue says that there are wider issues at play, and she cannot obtain justice without the determination by the court of who is lying, her or M.

12	See also s 298(2) of the Criminal Procedure Act 2011 which requires that the notice of application for leave to appeal must state the question of law on which the appeal is being taken.
13	Emeny v Mattsen [2024] NZHC 291 at [26] citing Austin, Nichols & Co v Stichting Lodestar
[2007] NZSC 103, [2008] 2 NZLR 141 at [4].

[30]	The Judge’s concerns focused on the substantial delay involved in prosecuting the matter. The Judge’s findings appear to be based on relevant (and not irrelevant) factual matters, and it is not apparent that he overlooked any relevant fact or law.

[31]	Ms Raue disagrees with the Judge’s decision but cannot identify any question of law arising from it. In the circumstances, I must decline leave to appeal.

[32]	In addition, on the information available to me, the appeal does not look strong on its merits and while Ms Raue considers the matter important, it does not raise a matter of public importance.

[33]	I also record that it is not open to me to consider Ms Raue’s request that the order made in the District Court for permanent suppression of M’s name be removed. No appeal has been filed against the decision of the District Court granting permanent name suppression to M.

Result

[34]	For the reasons set out above, I decline leave to appeal, and the appeal is dismissed.

Costs

[35]	Mr Smith indicated that if successful in opposing the appeal, M would seek costs under s 8 of the Costs in Criminal Cases Act 1967 or s 364 of the Criminal Procedure Act.

[36]	Given that costs are not regularly ordered in criminal matters, if costs are to be sought, and the parties cannot agree them, M may file a memorandum no longer than five pages within 15 working days from the date of this judgment. Ms Raue may then

file a memorandum of the same length within a further 10 working days. Costs will then be determined on the papers.

McQueen J

Solicitors:
Kevin Smith Law Ltd, Wellington for Respondent