A v Attorney-General - [2018] NZHC 986

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE FIRST AND SECOND PLAINTIFFS.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV 2016-442-00030

[2018] NZHC 986

UNDER the Judicature Act 1908, the Crown Proceedings Act 1950 and the
New Zealand Bill of Rights Act 1990

IN THE MATTER

of a claim for damages arising from New Zealand police's forging and execution of a purported search warrant

BETWEEN

A

First Plaintiff

AND

H LIMITED

Second Plaintiff

AND

THE ATTORNEY-GENERAL

Defendant

Hearing: 4-5 December 2017

Counsel:

R W Maze for First and Second Plaintiffs S K Barr for Defendant

Judgment:

8 May 2018

JUDGMENT OF ELLIS J

[1] Mr A and his company, H Ltd, bring this claim against the Attorney-General in relation to the actions of the police in executing an illegal search warrant at a storage unit which was part of a facility owned and operated by them. They sue in deceit,

A v H LIMITED [2018] NZHC 986 [8 May 2018]

trespass and for alleged breaches of the New Zealand Bill of Rights Act 1990 (the NZBORA).

Background

[2] Between November 2009 and March 2011, the Tasman Organised Crime Unit and Organised and Financial Crime Agency New Zealand (OFCANZ) conducted an investigation into the criminal activities of the Red Devils Motorcycle Club (RDMC). The investigation was named “Operation Holy”. Undercover police officers were deployed as part of that investigation, under the direction of Detective David Prentice.

[3] One of the officers deployed was a male undercover police officer using the name Michael Wiremu Wilson (Constable Wilson).1 As part of the planned infiltration of the RDMC, Constable Wilson rented a storage unit at H Ltd, the second plaintiff. The first plaintiff, Mr A, is the sole director and operator of H Ltd.

[4] Police intelligence at that stage was that Mr A was a supporter of the RDMC. Police saw him as a suitable person to “target” for that reason and because his ownership of the storage units provided a good way for Constable Wilson to meet him. As well, Constable Wilson could use a storage unit as a means of adding verisimilitude to his fictitious back-story, namely that he was, himself, involved in criminal activity.

[5] The plan was that he would store cannabis-growing equipment in the unit and allow it to be seen by Mr A. Other items to be stored in the shed included a freezer containing a quantity of paua, laptop computers made to look stolen, resealable plastic bags of the type commonly used by drug dealers, and a quad bike (to support a back story that he would go “off-road” to check cannabis plants).2

[6] Constable Wilson paid Mr A $215 for rental of the unit on 13 November 2009. Further fees were paid between December 2009 and April 2010. The rental fees were paid in cash, provided to Constable Wilson by the police as part of the operation. During this period, Constable Wilson deliberately…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v Attorney-General

Details

AGLC: A v Attorney-General [2018] NZHC 986
Case: [2018] NZHC 986
Decision Date: 8 May 2018

CaseChat Overview and Summary

Mr A and his company, H Ltd, brought this claim against the Attorney-General in relation to the actions of the police in executing an illegal search warrant at a storage unit which was part of a facility owned and operated by them. They sued in deceit, trespass and for alleged breaches of the New Zealand Bill of Rights Act 1990. The court was required to determine whether the police conduct amounted to deceit, arbitrary detention, trespass, or a breach of the New Zealand Bill of Rights Act 1990. The court found that the police conduct did amount to deceit, but the claim for exemplary damages failed as the police believed their actions were justified and authorised. The claim for arbitrary detention and unreasonable search under the New Zealand Bill of Rights Act 1990 also failed as there was no relevant detention or unreasonable expectation of privacy. The claim for trespass failed as the police were the undisclosed principal to the agreement and had a right of entry onto the premises and into the unit. The court awarded damages of $131.28 to Mr A and dismissed all other causes of action. The court also made an order prohibiting publication of the names or identifying particulars of the first and second plaintiffs.

Orders