Edmonds v Penno

[2023] NZHC 3073

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2023-409-116

[2023] NZHC 3073

BETWEEN

KENETH TAIPOTO EDMONDS

Appellant

AND

WENDY ANN PENNO

Respondent

Hearing:

12 October 2023

Appearances:

Appellant in person

No appearance for the Respondent

Judgment:

1 November 2023

JUDGMENT OF HARLAND J

Introduction

[1]    Keneth Edmonds submitted a charging document, in a private prosecution, alleging Wendy Penno attempted to murder him. Judge Callaghan directed that the charging document not be accepted for filing under s 26(3)(a) of the Criminal Procedure Act 2011 (CPA) as he decided there was insufficient evidence to justify a trial.1

[2]    In a minute issued on 20 September 2023, Mander J informed Mr Edmonds that this Court has no jurisdiction to hear an appeal from a decision of the District Court under s 26 of the CPA. Mander J allowed Mr Edmonds further time to research the matter and adjourned the hearing for three weeks. Mr Edmonds filed a memorandum dated 4 October 2023 in response to Mander J’s minute.

1      Edmonds v Penno [2022] NZDC 17733.

EDMONDS v PENNO [2023] NZHC 3073 [1 November 2023]

[3]The matter came before me on 12 October 2023.

Background

[4]    Mander J’s minute of 20 September 2023 summarises the background to Mr Edmonds’ application to the District Court. From the documents provided, it appears that Mr Edmonds’ dispute with his former partner Ms Penno arises from Family Court proceedings and proceedings in the High Court dealing with the insolvency of companies in which Mr Edmonds and Ms Penno had an interest. Mr Edmonds listed the proceedings in the District, Family and High Courts in which he and Ms Penno (or their related business interests) have been involved since 2018.

[5]    Mr Edmonds challenges Ms Penno’s veracity, he contends there is evidence of Class C prescription medication either obtained and/or administered by Ms Penno that requires investigation, and he alleges that her behaviour on other occasions has placed their children, as well as himself, at risk.

[6]    Mr Edmonds also provided a memorandum to this Court dated 13 August 2023 asking the Court to approve the release of funds held in the Family Court to fund toxicology testing he says he requires for the evidence in his criminal case against Ms Penno.

Discussion

[7]    Before I can consider the substance of Mr Edmonds’ submissions on appeal, I must be satisfied the Court has the power or jurisdiction to hear the appeal.

[8]In his minute of 20 September 2023, Mander J said:

[8]        Rights of appeal in criminal proceedings are governed by the Act. The right to bring a pretrial appeal is circumscribed by ss 215, 217 and 218. The decisions listed in those sections from which an appeal may lie do not include a decision by a District Court Judge directing that a charging document must not be accepted for filing under s 26(3). There is no statutory right of appeal from a decision made under s 26. It follows that this Court has no jurisdiction to hear an appeal from the District Court’s decision not to accept a charging document for the purpose of commencing a private prosecution. Such decisions can be the subject of an application for judicial review, and, if Mr

Edmonds wishes to pursue his challenge to the District Court’s decision, that is an avenue open to him.

(footnotes omitted)

[9]       I now outline Mr Edmonds submissions addressing why he says this Court has jurisdiction to hear the appeal, contrary to Mander J noting in his minute that, while a judicial review of the District Court Judge’s decision may be available to Mr Edmonds, there is no right of appeal from a s 26 decision and this Court has no jurisdiction to hear one.2

[10]     In his memorandum of 4 October 2023, Mr Edmonds referred to ss 15 and 26 of the CPA and he provided some of the legislative history to these provisions. He cited S v Vector and the explanatory note to the bill noting that the purpose of s 26 is to prevent “vexatious and unprincipled private prosecutions”.3 Mr Edmonds submitted that, as the District Court Judge considered the prosecution did not infringe double jeopardy principles or was otherwise an abuse of process, the “weeding out inappropriate private prosecutions” has occurred. He submitted that access to justice issues therefore prevail. He submitted that the High Court’s obligation is now fairly and squarely one of access to justice and, I infer from his submissions, he considers, regardless of there being no specific right to appeal under s 26 of the CPA, the Court can nonetheless hear his appeal. Mr Edmonds cited S v Vector as authority for this proposition.4

[11]     It is true that Vector outlined the principles that apply in relation to private prosecutions under s 26 of the CPA. However, the District Court Judge’s decision in that case was judicially reviewed to the High Court and thereafter appealed to the Court of Appeal and Supreme Court. The Supreme Court noted the lack of appeal right against a decision made by the District Court under s 26 and referred to the various other safeguards which exist to protect defendants against unmeritorious private prosecutions.5 Vector is not authority for the proposition that a right of appeal

2      See S v Vector Ltd, [2020] NZSC 97; Goodman Fielder New Zealand Ltd v District Court at Porirua [2019] NZHC 599, [2019] NZAR 489 at [2]; Crockett v Christchurch International Airport Ltd [2022] NZHC 435 at [3].

3      Criminal Procedure (Reform and Modernisation) Bill (243–1) (explanatory note) at 10.

4      S v Vector, above n 2.

5      At [51] concerning the lack of appeal rights and [61] regarding safeguards, as well as the ability under s 26(3)(b) to reject charging documents which are an abuse of process, the Vector judgment

is created where access to justice is pleaded in the circumstances propounded by Mr Edmonds or at all.

[12]     I have reviewed Mr Edmonds’ arguments, submissions, and evidence. While I acknowledge his submission as to new evidence, nothing changes Mander J’s statement of the law that this Court does not have the jurisdiction to hear an appeal from the District Court decision concerning s 26 of the CPA. With respect, I agree with that statement.

Conclusion

[13]     I conclude that Mr Edmonds does not have a right of appeal from the decision of the District Court in this case as a matter of law. As Mander J noted and as I determine, the notice of appeal filed by Mr Edmonds in relation to the District Court’s decision is a nullity and of no legal effect.

Harland J

notes the following as further barriers to protecting proposed defendants from private prosecutors: the court may dismiss a charge under s 147 of the Criminal Procedure Act where the prosecutor has not offered evidence at trial; the court is satisfied that there is no case to answer; or where the judge is satisfied that “as a matter of law, a properly directed jury could not reasonably convict the defendant”; the Attorney-General may direct a stay; s 23(1) Criminal Procedure Act which makes it an offence to include false information in a charging document; and Costs may be awarded in favour of a defendant under ss 5 and 6 of the Costs in Criminal Cases Act 1967.