Forrest v Chief Executive of the Department of Corrections

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000108 [2014] NZHC 1205

BETWEEN
JESSE WAIARIKI TEMANAVA

BUTLER Applicant

AND

THE ATTORNEY-GENERAL on behalf of the NEW ZEALAND POLICE Respondent

Hearing: On the papers

Appearances:

No appearance by Applicant
No appearance by Respondent

Judgment:

30 May 2014

JUDGMENT OF WOOLFORD J

[on application for leave to appeal to Court of Appeal]

This judgment was delivered by me on Friday, 30 May 2014 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

BUTLER v THE ATTORNEY-GENERAL [2014] NZHC 1205 [30 May 2014]

[1] The applicant, Jesse Butler, is charged with threatening to kill and assault which arise out of an incident on 17 February 2014 when an attempt was made to serve him with a trespass notice, trespassing him from the premises at Massey University. These charges are due to be heard in the North Shore District Court.

[2] Mr Butler subsequently brought civil proceedings against the Police and Massey University claiming racism, cruelty, torture and malfeasance. This proceeding has been filed in the High Court at Auckland.

[3] On 5 May 2014, I dealt with an application by Mr Butler to transfer the criminal charges to the High Court at Auckland for hearing together with the civil claim alleging racism, cruelty, torture and malfeasance and for an order from the High Court striking out the charges as being unlawful. Mr Butler applied to the High Court by way of statement of claim in the Court’s civil jurisdiction citing High Court rule 5.64 and ss 43, 44 and 45 of the District Courts Act 1947.

[4] In my minute dated 5 May 2014, I noted that any application to transfer the District Court criminal charges to the High Court should not be made in the civil jurisdiction, but rather by filing an originating application under s 70 of the Criminal Procedure Act 2011. Rather than strike out the application for transfer made by Mr Butler, I directed the registry to reconfigure the proceeding as an originating criminal application, to be listed in the criminal callover at 9.00 am on Wednesday,
14 May 2014. The registry has subsequently reconfigured the proceedings as an originating criminal application and have allocated a new number, CRI-2014-404-
000108, to the application.

[5] Mr Butler has now filed an application for leave to appeal to the Court of Appeal against my decision of 5 May 2014. He sets out a number of grounds in the application. The last ground is that he seeks that the criminal proceedings in the District Court be transferred to the Auckland High Court. The difficulty is that neither myself of Lang J, who dealt with the matter on 14 May 2014, have made a substantive decision on the application for transfer. The only decision I made in my minute of 5 May 2014, was to direct the registry to reconfigure the application as an

originating criminal application. The second decision I made was to adjourn the application until 14 May 2014, when it was dealt with by Lang J.

[6] There are, in my view, no grounds for leave to appeal to be granted as I did not make any substantive decision. Accordingly, and to the extent that relates to the directions made in my minute of 5 May 2014, the application for leave to appeal is
dismissed.

Woolford J

CaseChat Overview and Summary

Jesse Butler, the applicant, sought leave to appeal against a decision made by Woolford J in the High Court of New Zealand at Auckland. The applicant, charged with threatening to kill and assault in relation to an incident at Massey University, had previously brought civil proceedings against the police and Massey University, alleging racism, cruelty, torture, and malfeasance. Butler applied to the High Court for an order transferring the criminal charges to the High Court for hearing with the civil claim and for an order striking out the charges as unlawful. Woolford J noted that the application should have been made as an originating criminal application under section 70 of the Criminal Procedure Act 2011, rather than in the civil jurisdiction. The application was reconfigured accordingly, and Woolford J adjourned the matter for further hearing. Butler subsequently applied for leave to appeal against Woolford J's decision, arguing that the criminal proceedings should be transferred to the Auckland High Court. Woolford J dismissed the application for leave to appeal, finding that no substantive decision had been made by either Woolford J or Lang J, who subsequently dealt with the matter.

The primary legal issue before the court was whether the application for leave to appeal should be granted. Woolford J held that there were no grounds for leave to appeal, as no substantive decision had been made regarding the transfer of the criminal charges to the High Court. The court noted that the applicant had not followed the correct procedural steps in making the application and that the matter had not been substantively decided. Woolford J dismissed the application for leave to appeal, finding that the applicant had not satisfied the requirements for an appeal under the High Court Rules.

Woolford J dismissed the application for leave to appeal, finding that no substantive decision had been made by the court regarding the transfer of the criminal charges to the High Court. The court noted that the applicant had not followed the correct procedural steps in making the application and that the matter had not been substantively decided. As such, the application for leave to appeal was dismissed.

The court made no further orders in relation to the application for leave to appeal. The criminal charges against the applicant remain pending before the North Shore District Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Hearing:	On the papers
Appearances:	No appearance by Applicant No appearance by Respondent
Judgment:	30 May 2014