WHEN POOR VISION IS EXPLOITED TO EXCUSE POOR JUDGEMENT- Justice McHerron- One of Judith Collins "chosen ones"- THIS IS THE FUTURE OF JUSTICE in NZ.
CIV-2024-443-013
[2024] NZHC 2425
still not publicly available! (AS PER ANY OF THE OTHER DECISIONS IN THIS APPLICANTS FAVOUR)
Decision
[34] Accordingly, I conclude that the District Court Judge made an error in law by not complying with s 26 of the Criminal Procedure Act 2011. The Judge should have directed Ms Dunstan to file her formal statements, and the exhibits referred to in those statements, being the evidence that Ms Dunstan proposes to call at any trial.
Result
[35] The decision of Judge Hikaka is quashed
[36] The 21 charging documents contained in the record of the District Court dated 28 May 2024 at pages 1–42 are remitted back to the District Court at New Plymouth for another Judge to apply s 26(1) of the Criminal Procedure Act 2011 in relation to Ms Dunstan’s proposed private prosecution. As part of that reconsideration, the Judge must consider whether any or all of Ms Dunstan’s charging documents had already been accepted for filing before Judge Hikaka directed the Registry not to accept them for filing.
THE 27TH VICTORY FOR THE SAME SELF LITIGANT DEFAMED BY NEW ZEALAND COURTS
[2023] NZHC 3176
*********************************************************************************
The errors of this judgement are extensive and now Judge Mcherron has burdened other judges to correct his errors:
The issues as the stand include: WHAT APPEARS TO BE PERPETUATING A NARRATIVE OF DEFAMATION OF THE COURTS IN PARA [2] OF McHerron js’ DECISION TO DISCREDIT THE LEGAL MERITS OF MY CASE, AS LEAVE HAD BEEN PROVIDED AND THE S166 ORDER REMAINS UNDER APPEAL [MADE UNILTAERALLY WITHOUT A HEARING ALREADY AN OBVIOUS BREACH OF JUSTICE- ONGOING MENTION OF THIS SIMPLY SERVES TO SHOWCASE THE COURTS DISREGARD FOR THE LAW AND HUMAN RIGHTS THEY ARE TRUSTED TO UPHOLD.
[2] Ms Dunstan is currently restrained from commencing or continuing civil proceedings pursuant to an order under s 166 of the Senior Courts Act 2016.1 Because of this, Ms Dunstan was required to obtain leave to commence her application for judicial review.
Judge McHerron mischievously omits Justice Churchmans minute of 18 June 2024 declining to address a recall application was made on the irrational and “fanciful” imagining that he had already dealt with a recall application of 17 June 2024, a day before it even existed- which is of serious concern and brings his “non compus mentis” condition to the publics’ awareness which should be of serious concern that he continues to act as a judge, while clearly not well. Judge McHerron concealing this obvious error of law and fictitious ruling is indicative of how “limp and lawless” his decision making skills are in these proceedings.
[4] On 31 May 2024, Ms Dunstan filed a memorandum seeking several directions regarding the hearing of her application. On 10 June 2024, she filed an affidavit in support. In his judgment dated 17 June 2024, Churchman J determined these matters and this judgment is to be read together with his.4 On 18 June 2024, Churchman J declined Ms Dunstan’s application for recall of his decision. 5 On 25 June 2024, Churchman J declined an application for leave to appeal his judgment of 17 June 2024
The issue regarding obstruction of my Mackenzie friend is another matter of a breach of natural justice and human rights for fair treatment. It is hypocritical and irrational for Judges to imagine to dictate in what capacity any person can seek comfort in a support person, it is further ridiculous to deny a Mackenzie friends AVL attendance but allow a judges AVLK attendance [as per Justice Mander in Court Of Appeal proceedings CA667/2024 on 16 May 2024]
?[5] One of the matters determined by Churchman J related to the provision of an AVL link for those who might wish to witness the hearing remotely. Alternatively, Ms Dunstan requested the Court to permit Graeme Axford to appear via AVL as a McKenzie friend to support Ms Dunstan for the hearing. Churchman J declined both applications. At the commencement of the hearing on 19 July, Ms Dunstan renewed her application for Mr Axford to attend the hearing via a VMR link. I declined the application for the same reasons given by Churchman J.7 Following his 17 June 2024 decision, Ms Dunstan was aware that if she wished to have a support person for the hearing, that person would need to attend in person and would not be permitted to attend remotely.
Unfortunately for HH McHerron, a precedent decision of recusal for the basis of breaching a persons RIGHT to a Mackenzie friend in any capacity, now exists courtesy of Judge Ruth, not just for the matter on hand but ANY matter involving the same plaintiff on the grounds of perceived [if not actual] bias:
Judge Ruth on 27 August 2024:
CRI-2024-009-662.
"I have spoken to the Judge presiding for the pre-trial argument, Judge Ruth. He has recused himself from presiding over this matter on the basis that he refused the application for MacKenzie friend, it would be inappropriate for him to preside over any case involving Mr Clark."
?
This can in no way be a criticism of “a persons subjective opinion of a decision” rather a progressive and “common sense” statement that depriving someone of a right for the convenience of the court, not only cuts across natural justice but further serves to erode the publics confidence in the judiciary casting doubt on the lawfulness of further decisions from the Judge.
Moving on to the formal Recusal application, filed as explained in Judge McHerrons best interests to prevent this predictable “humiliation” of a lawless decision- 14 pages of obvious errors of law for other judges to correct: In para [7] he states:
[7] On or around 23 April 2024, Ms Dunstan filed a document headed: Urgent leave application under s 166 SCA 2016 granting leave for an urgent s 7.37 application and Justice McHerron’s public recusal hearing/whatever other necessary directions are required.
When I told Judge McHerron I was surpised to see him presiding over the case, I clearly stated his decision to ignore the obvious challenges he would face to defend his apparent bias in replacing the 6 primary offenders with the Attorney General on his own initiative for the tax payer to fund their defence would be difficult to over come. I clearly stated his decision to ignore these issues was either “a very brave or very foolish decision and time would tell.”
It appears pride has again preface the fall in para [11] Justice McHerron immortalises his firm belief to hold his importance above that of the reputation of justice:
[11] The Registry first advised me that I was the Judge assigned to Ms Dunstan’s judicial review on 16 July 2024. On reviewing the file before the hearing on 19 July 2024, I carefully considered the basis outlined by Ms Dunstan for my recusal and made a preliminary determination that Ms Dunstan had not established any grounds for me to recuse myself. Ms Dunstan’s oral submissions at the hearing did not persuade me to change my mind. At the hearing, I advised Ms Dunstan and Mr Gunn that I had decided not to recuse myself and that my reasons would be contained in the decision. Here are those reasons.
Important to note, Mr Gunn was not counsel on the court file. Counsel for the Attorney General was David Nield [resembling Harry Potter and Ronald Weasleys love child- not a 60+ year old grey haired “Mr Gunn”) commenting on the weather- likely explaining why an Auckland based solicitor- at the cost of the tax payer was not attending a Wellington hearing.
At no stage did the Judge ask counsel to introduce themselves, indicating they were known to each other. This inspired some research resulting in Judge McHerrons number becoming available after a google search: WHICH IS STILL PUBLICLY AVAILABLE: https://aucklandmarinedirectory.co.nz/jason-mcherron-16031630975596115296/
After the hearing at approximately 2:30-3:pm on 19 July 2024, I had a beer at the backbencher and phoned Justice McHerron to seek legal representation and ask if he would recommend anyone, if he was unable to represent me. To his credit he did not name Peter Gunn. However I am concerned a judge would be accepting personal calls while he should be presiding over cases. . . The fact this conversation is omitted from the decision as further grounds of recusal is equally concerning.
Judge McHerron summarised the initial recusal grounds as:
[12] As I understand it, the primary grounds raised by Ms Dunstan for my recusal are that:
?(a) At a telephone conference on 22 April 2024, at which I presided, Ms Dunstan considers that I “offer[ed] legal advice” prompting Crown counsel to “consider a consent order that [Ms Dunstan] ha[s] not consented to [which] was highly unethical and exceeded [my] jurisdiction as a judicial officer who should not be making submissions in proceedings [I am] responsible to adjudicate on.”
(b) I removed the second to seventh respondents as respondents to the application and added the Attorney-General.
(c) I declined leave under s 169 of the Senior Courts Act 2016 for Ms Dunstan to bring a proceeding seeking the recusal of a District Court Judge.
?While the first two matters speak for themselves, the third point refusing leave to allow a recusal application to the judge in question falsely claiming the High Court did not have jurisdiction to grant leave was of concern and brought the judges competency and understanding of law into question casting doubt on other matters- such as this substantive case.
In para [14] Judge McHerron relies on these two basis to explain why he has failed hi due diligence to prioritise the reputation of the judiciary over his self importance/ misplaced understanding of his “duty.”
a)???? A Judge should apply the above principles firmly and fairly and not accede too readily to suggestions of bias
b)???? A Judge should be mindful of the burden that passes to other Judges if the Judge recuses him or herself unnecessarily.
16. The reasoning provided in para [14] a) Is easily superseded with the fundamental responsibility ““Justice must not only be done, but must also be seen to be done” as per Lord Hewart, the then Lord Chief Justice of England in the case of?Rex v. Sussex Justices,?[1924] 1 KB 256.
The mere perception of bias or conflict of interest is sufficient to be removed to retain the “impartiality” of the court for public confidence.
The reasoning provided in para [14] b) appears to be deliberately contracted with the direction to burden another judge to determine in para [36] what was clearly found at the hearing before Justice McHerron on 19 July 2024: pretending not to be aware of the initial charge of abduction already being accepted by registrars on at least 2 separate occasions as per the bundle of documents he directed be prepared and canvassed at the hearing- page 1 of the bundle prepared by counsel for the New Plymouth District Court and confirmed by Counsel for the Attorney General , Mr Gunn at the hearing on 19 July 2024. Making para [36] in err and an obvious error of law and fact, bound by the precedent decision I relied on being: Dunningham J in Greendrake v District Court.
[36] The 21 charging documents contained in the record of the District Court dated 28 May 2024 at pages 1–42 are remitted back to the District Court at New Plymouth for another Judge to apply s 26(1) of the Criminal Procedure Act 2011 in relation to Ms Dunstan’s proposed private prosecution. As part of that reconsideration, the Judge must consider whether any or all of Ms Dunstan’s charging documents had already been accepted for filing before Judge Hikaka directed the Registry not to accept them for filing.
It is arrogant and arguable an act of gas lighting to trivialise reasonable grounds of judicial bias as “a parties perception of a ruling” ?as per Mc Herron Js “opinion” cited in para [18], opposed to accepting how obviously wrong, unethical and legally flawed the ruling were which was the basis of the recusal. That is what required an apology- not para [23].
[18] Moreover, recusal is not predicated on a party’s subjective perceptions about a Judge’s ruling. If it were, there would be huge potential for abuse.
It is insufficient for judges in question to simply satisfy themselves they are smarter than the general public and therefore in a position to take advantage of people before them: This is of huge concern, especially considering the deteriorating education levels via numeracy and literacy results of New Zealand.[ Likely why Crown solicitors are able to comply with filing requirements of basic page numbers, such as David Nield in CA667/2024]
[19] I am satisfied that there is not a real and remote possibility that a fair minded fully informed observer would have a reasonable apprehension that I might not bring an impartial mind to the resolution of the question I am required to decide in the present proceeding.
It is ironic Justice McHerron offers an empty apology in para [23] for not canvassing interconnected matters such as Brewer Js sealed order of 15/05/2024 – which was personally handed to him as part of the Attorney Generals submissions- seeming to overlook to obvious errors of law the “cross appeal of an unlawful decision of 26/06/2024 to try and override that sealed order out of time, extra judicially overridden on unlawful advice of 3 incompetent Crown Lawyers- yet to be regulated for humiliating the judiciary to such extreme lengths.)
[23] I hope Ms Dunstan will forgive me for not canvassing these wide-ranging submissions in the interests of keeping this decision focused on the specific matter in respect of which leave was granted by Grau J.
Justice McHerron reiterates the FACTS of the matter as per Justice Graus initial leave decision of 7 March 2024, ?which should have correctly seen these matters determined in chambers, on the papers due to the strong legal precedents relied on , as I originally requested- prior to Ms Herron J subbing out the respondents for the Attorney General:
[24] I cannot improve on Grau J’s summary of that issue and so I will quote the relevant paragraphs of her leave decision verbatim:
领英推荐
?[3] Relevant to the current application are charges filed by Ms Dunstan against John Neill, Carol Neill, Christina Riddell, Karen Allen, Allan Nixon, and Anita Ellis for offences under ss 113, 116, 117, 209 and 210 of the Crimes Act 1961. These sections encompass offences of abduction, kidnapping, corrupting witnesses, conspiring to defeat justice, and fabricating evidence. The charging documents are dated 15 October 2023 and were received by Judge Hikaka for consideration in the New Plymouth District.
?[4] Previously, in April 2022, Ms Dunstan had filed six charges for an offence under s 116 of the Crimes Act against the same respondents named above. Those charging documents were received by Judge McNaughton in the Manukau District Court, and rejected for filing, by minute dated 11 May 2022. Ms Dunstan judicially reviewed Judge McNaughton’s decision. Anderson J set it aside and remitted the matter back to the District Court at Manukau on the basis of non-compliance with s 26(1) of the Criminal Procedure Act 2011 (the CPA), in that the Judge did not direct formal statements and exhibits under s 26(1) to be filed before refusing to accept the charging documents.
?[5] I note that Ms Dunstan has recently been granted leave to commence a judicial review of a decision of the North Shore District Court rejecting her documents for filing in another private prosecution she seeks to commence. Justice van Bohemen also granted leave on the basis that the Judge did not follow the process in s 26(1)
Judge McHerron states:
[25] In her statement of defence, the Attorney-General accepts that Judge Hikaka made a “mistake of fact” in assuming that the charges Ms Dunstan attempted to file in the New Plymouth District Court were identical to charges Ms Dunstan has previously attempted to file in the Manukau District Court. While the six defendants to each of the proposed prosecutions were the same, the precise charges were not identical. The Attorney-General has indicated that she consents to a direction remitting the charging documents to the New Plymouth District Court for the decision to be remade.
[26] In his oral submissions on behalf of the Attorney-General, Mr Gunn accepted that all of the charging documents that Ms Dunstan attempted to file in the New Plymouth District Court can be remitted back to that Court for it to conduct a comprehensive review as to whether Ms Dunstan has already sought to file these charging documents in other courts and which, if any of them, may have already been accepted for filing on the basis outlined by Dunningham J in Greendrake v District Court.
Justice McHerron is well aware of at least 2 of the charges already having been accepted as per the court records with call over dates and PRN numbers listed by the registry staff in 2021 and again in 2023. As canvassed above- should this be disputed the formal transcript and audio is sought under S14 NZBORA 1990, s27 NZBORA 1990 and precedent decision of Justice Mallon: “Transparency over privilege” [2023] NZHC620 Harder V Worksafe.
[27] Ms Dunstan submits that the Court should go further and make a direction that charging documents be accepted for filing in the New Plymouth District Court without delay. However, in my view, such relief is not available for the same reasons that have been identified in other related decisions.24 That is because judicial review focuses on a procedural error and does not normally involve the Court substituting its own decision on the merits. Rather, the first instance decision-maker will be directed to reconsider its decision in accordance with correct procedural principles.
Para [27] is in err and clearly overridden by the facts and legal precedents the court is bound by: Dunningham J in Greendrake v District Court.
I am concerned Judge McHerron appears to have done the Attorney Generals homework for them, in para [29] Mr Gunn referred to various cases which he said supported these propositions.
No specific examples were provided by Mt Gunn- counsel stated ambiguously of some case or other, ?“unclear of the citation” of cases [which may as well have been “Smith V Smith before Judge McDonald]- therefore subject to the transcript disproving this fact as I recall it appears ?the judge has now made submissions on behalf of counsel in these proceedings.
For reasons unknown Judge McHerron takes to sympathise with the complete waste of time and money for the tax payer on behalf of Mr gunn having the audacity to even attend the hearing and challenge the case legally spoken for: as per Brewer Js last ruling in my favour dated 15/05/2024 [on the identical point of law he alleged one of the 8 cases for s166 was “meritless”)
[30] I record that I am sympathetic to Mr Gunn’s arguments. As Ms Dunstan’s litigation demonstrates, there is considerable merit in interpreting s 26 to allow a Judge to proceed straight to s 26(3)(b) and determine that a proposed charging document is an abuse of process, rather than directing formal statements and exhibits.
In para 33 Judge McHerron states the fact and points of law again, that until the court of appeal can magic up an alternative interpretation of the act to breach s15 of CPA 2011, the court “unfortunately” must continue to uphold the legislation- surely an s7 would be more appropriate for lawful legislative change opposed to this rogue gastapo judicial approach?
[33] In the meantime, the District Court must follow the currently accepted approach to s 26 by requiring the Registrar to accept a document for filing or refer it to a District Court Judge who must then make the direction for formal statements and exhibits as set out in s 26(1)(b).
This is a relief these proceedings were not indefinitely stayed pending a futuristic decision not yet in existence to suit the courts apparent “narrative for a desired outcome”- whether legally substantiated or not- in stark contrast to the desperation of the Court Of Appeal in matter CA667/2024: issued by Justice Courtney on 28 August 2024:
[1] This appeal was heard before a Divisional Court on 16 May 2024. One of the issues in the appeal is the extent to which findings in the proceedings on which the s 166 application was founded can be taken into account in determining whether those proceedings totally lacked merit for the purposes of s 166. This issue has been argued before a Permanent Court in another case and that decision has not yet been released.
[2] This Court considers it desirable to await the outcome of the decision of the Permanent Court in the other matter before completing the judgment in the present case. The purpose of this minute is to explain the reason that the judgment in this case might not be released as quickly as would otherwise be the case.
Courtney J
?[35] The decision of Judge Hikaka is quashed, Yet no declaration made despite the high threshold and direction sought to confirm the fact Judge Hikkaka breached my right to justice in disregarding s26(1)(a) and 26(1)(b) of the CPOA 2011. AND NO REASON WHY NO DECLARATION WAS MADE, As per the precedent decision I relied on being: Dunningham J in Greendrake v District Court The court is bound by.
?We then have a ridiculous issue of costs where McHerron J backflips and now we are waiting for a futuristic decision of unlawfully and obstructively raised proceedings in the hope the COA can abracadabra up more discrimination to prejudice self litigants from having their time and expenses compensated:
[37] In relation to costs, my preliminary view is that Ms Dunstan is entitled to be paid her reasonable disbursements, as was determined by Brewer J in relation to Dunstan v North Shore District Court. 27
[38] However, at the hearing, Mr Gunn indicated that the Crown has filed a cross appeal in relation to that decision and wished to have an opportunity to address me before I made any award of costs or disbursements. Ms Dunstan indicated that the underlying appeal in respect of which the cross-appeal had been brought had itself been withdrawn. The parties were unable to take the matter further in terms of the implications of the Crown’s cross-appeal. However, I will allow each party to file submissions (maximum three pages) in relation to costs and/or disbursements within 14 days of the date of this decision. I will then make a further determination on the papers.
?This is where crown lawyers should have sympathy as per my correspondence yet to be responded to in the Court of Appeal proceedings CA430/2024:
as a result of the breach of fidelity to the court by crown lawyers concealing their misconduct-?
the current proceedings attempting to obstruct a decision made extra judicially on misleading "advice" of crown counsel AFTER a decision of 15/05/2024 was sealed without any appeal filed in time- has now impacted other proceedings at the high court which I again have been successful in but which fair disbursements AND COSTS to acknowledge my time and energy having to be expended regulating solicitors and courts for my RIGHTS to justice to be acknowledged let alone upheld.
Please ensure this decision is placed before justice Goddard for his clear directions regarding exactly what he is orchestrating/ aiding and abetting in these proceedings and what the courts ideal outcome for this miscarriage of justice is?
Now the court of appeal has taken to indefinitely breaching justice for futuristic decisions not yet in existence (Ca667/2023) this obviously sets a disturbing "example" for other courts to adopt this unlawful "extra judicial" approach to breach natural justice and disregard human rights the courts should be bound by.
Crown counsel, how are you funded to humiliate the courts you allege to represent the best interests of? Surely you are failing not only your fidelity to the court but also your responsibility to your clients best interests??
Who does crown law seek "independent " legal advice from? (Perhaps something to consider sooner rather than later.)
I am now vexed to again seek Justice McHerron recall the decision and recall his decision, post hearing, bound by: Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3], [37], [89], 127]. 12 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd, above n 11; Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76.
?I note this was an obvious case that should have been determined in chambers had Justice McHerron made a just direction. As such, 6 weeks later no decision until AFTER a complaint to the JCC was made for these extensive delays.
I request an impartial Judge [NOT Churchman J] now listen to the audio with the documents before them to make just and lawful directions prior to the COA being burdened with this appeal on all of the obvious grounds raised in this recall application.
I am seeking interim damages at the very least for flights, accommodation and travel while in Wellington of $750 as a bare minimum while actual consideration to my wasted time and energy trying to regulate the judiciary as a victim of long standing and unwarranted abuse continues.
************************************************************************************
The judges response: dated 5 September 2024:
CIV-2024-443-013
5 September 2024
MINUTE OF McHERRON J
[1] Following release of my judgment on 27 August 2024,1 I received a document dated 30 August 2024, entitled: Request to recall and correct errors of law in the judgment of McHerron J and further recusal on precedent: CRI-2024-009-662 — Judge Ruth 27 August 2024 — Recusal — Post hearing as per precedent Saxmere v Wool Disestablishment Co, filed by the successful party — Tanya Dunstan on 30 August 2024.
[2] Ms Dunstan is familiar with the limited grounds on which recall of a judgment is available. These grounds were summarised recently by Grau J in a proceeding in which Ms Dunstan was the applicant.2 Moreover, the principles relating to recusal have been summarised both in my own judgment dated 27 August 2024 and in an earlier judgment in the same proceeding by Churchman J.
[3] Having carefully reviewed Ms Dunstan’s 30 August 2024 document, I am unable to discern any proper basis for:
(a) recalling my decision; or
(b) further consideration of the recusal application Ms Dunstan has already made.
[4] Accordingly, the applications in Ms Dunstan’s 30 August 2024 document (recall and recusal) are dismissed.
McHerron J
THE RESPONSE TO THE COURT:
Was Judge Mcherron provided the precedent decisions supporting recall- simply for obvious errors?
“It has been drawn to my attention that there is no longer a District Court at Rangiora therefore my decision as to where the Charging Document must be filed is wrong
As a result I recall and rescind the decision I gave on 30 August 2024. The full file will be referred to another Judge for a decision to be made under s 26Criminal Procedure Act 2011.G A Rea DCJ”
and a binding precedent of Justice Peters: ;[2023] NZHC 3089
such as ignoring the binding precedent of: [2020] NZHC 2956 GREENDRAKE V DISTRICT COURT OF NEW ZEALAND AND MCCONNOCHIE and burdening another judge to discover what was traversed as a fact supported by Peter Gunn at the hearing on 19 July 2024- page 1 of the bundle the judge directed to confirm the registry staff had accepted the charging documents of abduction.
It is unfortunate Judge McHerrons vision appears to be obstructing better judgement. . .#awkward.
Australian Department of Foreign Affairs and Trade Are we done yet?