High Court confirms that judicial review is discretionary and it is inappropriate for the Court to exercise its discretion to grant relief where it could serve no purpose or have practical effect
Brian Cyril Rowell (“Mr Rowell”) judicially reviewed Zohrab’s J decision to decline to recuse himself from hearing Mr Rowell’s criminal charges.
Brian Cyril Rowell (“Mr Rowell”) judicially reviewed Zohrab’s J decision to decline to recuse himself from hearing Mr Rowell’s criminal charges. The basis for the judicial review was that Zohrab J showed bias in favour of the Prosecutor against Mr Rowell when he “provided a privately-distributed minute” to the prosecutor to use in New Zealand Law Society complaint proceedings. The Attorney-General opposed the application on the basis that Mr Rowell did not establish actual or apparent bias and that the judicial review was moot. There would be no practical effect of granting relief in this case as the charges against Mr Rowell have been transferred to the Wellington District Court and Zohrab J will not preside over any further proceedings involving Mr Rowell.
The Court found for the Attorney-General and the judicial review application was dismissed.
This Judgment confirms that it is procedurally wrong to have information placed before a decision-maker, without the information being disclosed to all parties. However, where it was a genuine mistake and not with intent to secretly keep information from the defendant, it does not give rise to an appearance of bias of the Judge.
The Judgment also confirms that relief in judicial review proceedings is discretionary and it is inappropriate for the Court to exercise its discretion to grant relief where it could serve no useful purpose or have practical effect.
Mr Rowell is facing 31 criminal charges (to be heard in the Wellington District Court) of aiding and abetting his companies to provide false Goods and Services Tax (GST) returns. His application to have the charges dismissed was heard and dismissed by Zohrab J in the Blenheim District Court on 10 February 2016.
During the hearing Mr Rowell became aware the prosecution’s summary of facts had been given to Zohrab J at his request prior to the hearing. While Mr Rowell received a copy of the summary of facts, he was unaware Zohrab J received a copy.
On 15 April 2016, Mr Rowell complained to the New Zealand Law Society that the prosecutor had not told him that the summary of facts was handed up to Zohrab J.
On 6 May 2016, Zohrab J issued a minute in which he explained how the Court came to be in possession of the summary of facts.
Due to an error by a Deputy Registrar, the minute was not sent to Mr Rowell. The minute was sent to the prosecutor and used by the prosecutor in the defence of the Mr Rowell’s complaint to the Law Society.
Mr Rowell then applied for Zohrab J to recuse himself on the ground of bias, which was declined on 28 June 2016.
On 10 August 2017, Mr Rowell’s criminal trial was transferred from Blenheim District to the Wellington District court by consent.
On 13 December 2017, Mr Rowell applied for judicial review seeking to have the 28 June 2016 decision quashed.
Issue 1: Was there actual or apparent bias?
The Court noted and applied the relevant principles for recusal that were settled by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd  NZSC 72,  1 NZLR 35 (at –, ,  and ; recalled on the merits by Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2)  NZSC 122,  1 NZLR 76 at ). A Judge should recuse himself or herself on the basis of apparent bias if a fair-minded and properly-informed lay observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question which the Judge is to decide. This involves two stages:
- First, the Judge must identify the circumstances that may lead the Judge to decide a case other than on its merits.
- Second, the party alleging apparent bias must also articulate a logical connection between the matter complained of and the feared deviation from impartiality.
The Court identified two key issues relating to the issuing of Zohrab J’s minute.
- The first issue was whether the issuing of the minute demonstrated actual or apparent bias on the part of Zohrab J. In the Courts view, the minute Zohrab J issued simply explains in an objective a way that he was responsible for requesting the summary of facts before the February hearing. Accordingly, there was no actual or apparent bias as there was no nexus or logical connection between Zohrab J issuing his minute and there being a possibility he was biased.
- The second issued relates to the minute not being provided to both parties. In the Court’s view this was clearly a procedural error and while this reflected poorly on Court administration, it occurred because of a genuine mistake or oversight which does not give rise to an appearance of bias on the part of Zohrab J. The Court also held that there was no actual or apparent bias in this.
Issue 2: Was the application moot and should relief be awarded?
The Court applied the principle confirmed by the Supreme Court in Unison Networks Ltd v Commerce Commission CA284/05, 19 December 2006 at  that relief in judicial review is discretionary and it is inappropriate for the Court to exercise its discretion to grant relief where it could serve no purpose or have practical effect.
To this end the Court accepted the Attorney-General’s submission that the application is moot and there would be no practical effect of granting relief in this case. The charges against Mr Rowell had been transferred to the Wellington District Court and Zohrab J was not going to preside over any further proceedings involving Mr Rowell. There was accordingly no need for Zohrab J to recuse himself and even if he did, it would have no effect.
Judicial Review Procedure Act 2016; Tax Administration Act 1994 s 92B; Criminal Procedure Act