Rowell v Commissioner of Inland Revenue

[2016] NZHC 2167

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2016-406-7 [2016] NZHC 2167

BETWEEN

BRIAN CYRIL ROWELL

Appellant

AND

COMMISSONER OF INLAND REVENUE

Respondent

Hearing:	13 September 2016
Counsel:	Appellant in Person A Goosen for Respondent
Judgment:	14 September 2016

JUDGMENT OF SIMON FRANCE J

[1]      This is an appeal against the refusal of Judge Zohrab to recuse himself from further involvement in these criminal proceedings.1

[2]      Mr Rowell is charged in relation to GST returns filed by companies with which  he  is  associated.    Mr Rowell  elected  trial  by  jury.    He  then  made  an unsuccessful application under s 147 of the Criminal Procedure Act 2011.   That decision is the subject of a reserved leave to appeal application in the Court of Appeal.

[3]      The s 147 application was heard prior to the filing of formal statements. Accordingly  immediately  prior  to  the  hearing  the  Judge,  through  the  Registrar, sought from the prosecutor a summary of facts.  This was provided.  Subsequent to the court hearing, Mr Rowley made a complaint to the Law Society concerning the prosecutor providing the Judge with the summary of facts, and not advising him or

providing him with a copy.

1      Commissioner of Inland Revenue v Rowell DC Blenheim CRI-2015-006-000847.

ROWELL v COMMISSONER OF INLAND REVENUE [2016] NZHC 2167 [14 September 2016]

[4]      Alerted to this (seemingly by counsel through the Registrar) the Judge issued a Minute setting out the circumstances in which he came to seek and obtain the summary of facts.  It appears that impugned counsel relied on the Minute in the Law Society proceeding.

[5]      Because of these circumstances, Mr Rowell made an application to Judge Zohrab that he recuse himself from any further involvement in the case.  He claimed that the issuing of the Minute was a case of the Judge using his judicial office to influence the outcome of his Law Society complaint.  This in turn shows the Judge is not impartial towards Mr Rowell and accordingly recusal was sought.

[6]      Judge Zohrab  declined  the  application.2      Mr Rowell  seeks  to  appeal  that decision.

[7]      There is no jurisdiction to hear the matter.   Mr Rowell accepts there is no stand-alone appeal right against a recusal decision in a criminal matter either under the Criminal Procedure Act 2011, or the Judicature Act 1908.   Rather, he seeks to invoke the inherent jurisdiction of the Court to supervise inferior tribunals.  There are several difficulties with this.

[8]      The  matter  arises  within  the  criminal  jurisdiction  and  the  applicable procedure is set out in the Criminal Procedure Act 2011.  As noted, no appeal lies.3

Despite that, the Court is in essence being asked to exercise an appellate function.  It is  irrelevant,  contrary  to  Mr Rowell’s  submission,  that  the  matter  is  styled  an application.  It is in substance an appeal. The inherent jurisdiction does not extend to creating appeal  rights.   The Court’s  appellate jurisdiction  is statutory.4      Finally, Mr Rowell has elected jury trial. Any appeal from the District Court within that trial jurisdiction is to the Court of Appeal.  This reinforces that use of the High Court’s

inherent jurisdiction in these circumstances would be incorrect.

2      Commissioner of Inland Revenue v Rowell [2016] NZDC 11857.

3      It is not suggested a question of law is involved such as to engage analysis of s 296 of the

Criminal  Procedure Act 2011.     See  generally  Anderson  v  R  [2015] NZCA 518, [2016] 2

NZLR 321.

4      Guy v Preliminary Proceedings Committee of the Medical Council of New Zealand (1994) 8

PRNZ 109 at 111.

[9]      There is in my view no real prospect that the answer is other than I have given.   It is not therefore necessary or appropriate to consider the merits in any depth.  I observe, however, that Mr Rowell advised the Court at the hearing that he did not receive a copy of the Minute when it was provided to the prosecutor.  The first he learned of it was when sent a copy by the Law Society.  It is this omission to give him a copy, and what seems to be a private distribution, that in part informs Mr Rowell’s  perception  of  the  Judge  taking  sides.    As  I  said  at  the  hearing, distribution to one party only would be an error in procedure as anything issued by a Judge should go to all the parties.  However, inadequate distribution is not something

to be necessarily laid at the Judge’s door.5

[10]     Other than that I content myself with observing the Judge’s decision appears

an orthodox application of principle to the facts of the case.

[11]     The application is declined for lack of jurisdiction.

Simon France J

5      The Judge’s Minute, in its intituling, did not record counsel for the parties (or in Mr Rowell’s case, his name as representing himself).  I observe with respect that including counsel on such documents is a way of minimising the risk of incorrect distribution, and emphasises the Minute is for all the parties, as it must be.