Anna Longdill
Judicial review – application for declarations that police breached victim’s rights in not providing updated victim impact statement to the court – Victims’ Rights Act 2002, s 21(1) – Solicitor-General’s Prosecution Guidelines 2013 – is judicial review available? – should a breach of the Act or guidelines properly be the subject of a declaration?
Choi v Attorney-General [2024] NZHC 3678 per Radich J
Wai Choi owns a clothing store in a city centre. In January 2017 she caught someone trying to steal an item of clothing. She called security and managed to prise the item away. The offender knocked the phone from her hand and punched her in the face, causing her to fall to the ground. Choi suffered swelling, cuts and bruising from the assault. It also took a real emotional toll on her.
Choi prepared a victim impact statement the day after the assault. But it was only in October 2020, almost four years later, that police (with Choi’s help) were able to find the offender and charge her. The offender entered a guilty plea in March 2021, with sentencing scheduled for 10 May 2021.
On 31 March 2021, police obtained an updated victim impact statement from Choi. Choi wanted to write the statement in her own time to ensure it covered everything (including a medical diagnosis) but the officer would not let her do that, saying that she needed to write the statement then and there.
On 10 May 2021, the offender was sentenced to nine months of intensive supervision and 40 hours of community work. The judge mentioned that he had not received an updated victim impact statement. He instead relied on the first statement, which did not address the emotional harm Choi had suffered and provided much less detail of her physical injuries.
Choi wanted to attend sentencing but could not find the right courtroom. She was told by a victim advisor when the sentencing would take place but was not given details of the courtroom. Choi was unhappy with the sentence imposed, believing it was too lenient.
Choi brought judicial review proceedings against the Attorney-General on behalf of the police, alleging that obligations to her under the Victims’ Rights Act 2002 and the Solicitor-General’s Prosecution Guidelines 2013 had been breached. She sought declarations.
The Attorney-General argued that neither the Act nor the guidelines conferred legal rights, much less ones enforceable against the police. She also raised a jurisdictional argument that judicial review is not available under the Judicial Review Procedure Act 2016 because no statutory power has been exercised.
Applicable principles: Victims’ Rights Act 2002, s 21(1); Solicitor-General’s Prosecution Guidelines 2013 – does Choi need to identify a statutory power for judicial review to be available? (no, non-statutory public power may be judicially reviewed at common law) – is a prosecutor’s conduct during sentencing an exercise of public power? (yes, prosecutorial decision-making is an exercise of public power and amenable to review in different ways. However, the nature of the subject matter is such that a degree of restraint is required) – was there a failure to comply with s 21(1) Victims’ Rights Act? (yes) – was there a failure to comply with the Prosecution Guidelines and the Victims of Crime – Guidance for Prosecutors 2014 Protocol? (yes, these were breached through the failure to provide the updated victim impact statement to the court) – is there a judicial review cause of action? (yes, unlawfulness) – is declaratory relief available or appropriate? (yes)
Held: The application for judicial review is granted. A declaration is made that the prosecutor did not comply with s 21 of the Victims’ Rights Act 2002, as supported by cl 21.2.3 of the Solicitor-General’s Prosecution Guidelines 2013, in failing to provide the applicant’s updated victim impact statement to the judicial officer sentencing the applicant’s offender.
Note: The court robustly rejected the Attorney-General’s argument that the Victims’ Rights Act does not confer legal rights, observing:
[65] The Crown’s argument that the mandatory obligation in s 21 of the Victims’ Rights Act, reflected equally in cl 21.2.3 of the Guidelines, does not confer a legal right on the victim is a difficult one. It may well be that some of the provisions in the Act and in the Guidelines do not create “rights” as such (despite the title of the Act). The nature and extent of a prosecutor’s liaison with a victim over timetabled steps in a proceeding might be an example of that. However, the obligation to have a victim’s statement put before a sentencing Judge is a fundamental tenet of the Victims’ Rights Act and of the sentencing process itself. It is not something that undermines a prosecutorial discretion which may in other circumstances be beyond the reach of a public law remedy.
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