Akatere v Attorney-General HC Auckland CIV 2004-404-6217

[2005] NZHC 477

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2004-404-6217

UNDER  the Declaratory Judgments Act 1908 and

Part VII of the High Court Rules

IN THE MATTER OF     Section 22 of the New Zealand Bill of

Rights Act 1990

BETWEEN  LUCY TEANGARUA AKATERE, MCCUSHLA PRISCILLA FUATAHA SUING BY HER LITIGATION GUARDIAN CARLOS TREAVOR JOHANSSON AND TANIA MAYZE VINI

Plaintiffs

ANDTHE ATTORNEY-GENERAL Defendant

Hearing:         10 October 2005

Appearances: R E Harrison QC & J Ren for Plaintiffs

C R Gwyn & W L Aldred for Defendant

Judgment:      23 December 2005

JUDGMENT OF KEANE J

Solicitors

Bergseng & Co., Auckland for Plaintiffs

Crown Law Office, Wellington for Defendant

AKATERE & ORS V THE ATTORNEY-GENERAL HC AK CIV 2004-404-6217  23 December 2005

[1]      On  15  August  2000  Tania  Vini  aged  14,  Lucy  Akatere  aged  15  and

McCushla Fuataha aged 14, were convicted at trial of aggravated robbery on 12

August 1999. Their offence lay, as the jury accepted, in attacking and robbing a 16 year old girl near the Three Kings Shopping Mall in Mt Roskill, Auckland. On 13

September 2002 Ms Vini and Ms Akatere were each sentenced to imprisonment for

18 months, Ms Fuataha to imprisonment for two years.

[2]      On 16 October 2001, as a result of an investigation initiated by Ms Vini’s father, which uncovered fatal weaknesses in the Crown case, the Court of Appeal, on the Crown’s invitation, quashed their convictions outright after  they had  served seven months imprisonment. The Court of Appeal said:

We have here three young persons let down by the system. They and their families have been subjected to the demeaning experience of public trial and conviction and rejection of their protestations of innocence. They have been convicted of a serious crime and imprisoned. On the material before us it is plain that should not have happened. We offer our sympathy to them.

[3]      On 7 March 2003 Ms K.P. McDonald QC, instructed to provide the Minister of Justice with independent legal advice under criteria promulgated by Cabinet, recommended that Ms Vini and Ms Akatere each be granted compensation for non- pecuniary loss of $135,000 and Ms Fuataha $137,500. Each ought also, she recommended, be compensated for any reasonable pecuniary losses. Each had been offered counselling to be paid for by the Crown. Ms McDonald QC recommended, as well, that the Government make a public statement confirming their innocence.

[4]      On 19 March 2003 the Cabinet Policy Committee agreed that the ex gratia payments and the public statement that Ms McDonald QC recommended be made. A condition was that the claimants, in accepting the payments offered, forego or discontinue any legal action against the Crown. On 24 March 2003 these decisions were confirmed by Cabinet. The claimants, on advice, however, did not accept this offer. They had been advised that the Cabinet criteria entitled them to significantly more. Their advice was that Cabinet had misapplied its own criteria.

[5]      Cabinet’s criteria, promulgated in December 2001, are a revised version of criteria  promulgated  in  1998.  They  do  not  incorporate  explicitly  additional

guidelines promulgated in 2000 to supplement the 1998 criteria. Cabinet’s offer, relying on Ms McDonald QC’s recommendation, assumed that the additional guidelines continue to apply. In these proceedings the claimants contend that they do not.

[6]      They seek a declaration that their claims ought to have been, and ought still to  be,  assessed  against  the  revised  2001  criteria  alone,  and  an  order  that  Ms McDonald QC’s report be set aside; or they seek to have the additional guidelines declared unlawful, and an order directing Cabinet to reconsider their claims under the 2001 revised criteria either alone or together with some only of the additional guidelines. If the guidelines remain in effect, they seek a declaration that Ms McDonald QC misapplied them, as therefore did Cabinet.

[7]      The Attorney General asserts that, like the 1998 criteria, the 2001 criteria, supplemented  by  the  2000  additional  guidelines,  govern  claims  for  ex  gratia payments made by the Crown.  But the point he takes is more fundamental. Neither the  promulgation  of  the  2000  additional  guidelines,  nor  their  application,  he contends, can give rise to any justiciable issue.

Context

[8]      In 1978, when New Zealand ratified the International Covenant on Civil and Political Rights, it held back by reservation from assuming any duty under Art 14(6) to compensate persons whose convictions had been quashed, or who had received a pardon on new or newly discovered evidence showing a miscarriage of justice; and thus also from conferring on any claimant any correlative right. It adhered to its existing practice of paying compensation solely as a matter of discretion.

[9]      In  November  1997  the  Cabinet,  noting  the  duty  to  compensate  that  the Covenant normatively imposes or encourages, and that the Law Commission was to report on the issue, adhered to the existing discretionary practice, but adopted interim guidelines. In December 1998, taking up some but not all of the Law Commission’s recommendations in its report ‘Compensating the Wrongly Convicted’, Cabinet adopted essentially the present criteria.

[10]     The 1998 criteria identified those eligible to seek an ex gratia payment. They required a Queens Counsel to review any claim and to certify that he or she was satisfied beyond reasonable doubt of the claimant’s innocence. Counsel, if that were her or his conclusion, was also to recommend to Cabinet what compensation might be offered. Such compensation was to be assessed against six factors relating to the case   and   four   heads   of   non-pecuniary   and   four   heads   of   pecuniary   loss. Contemplated also was a statement confirming the claimant’s innocence perhaps with an apology. All was conditional on the claimant abandoning or foregoing any proceedings against the Crown for compensation.

[11]     In July 2000, on the advice of the Minister of Justice, and prompted by an offer of compensation recommended  in an individual case, which the Government honoured but thought excessive, Cabinet adopted also the additional guidelines to which this case largely relates. Those guidelines, designed to complement the 1998 criteria, propose a method of calculation against a benchmark figure, or figures. Their stated purpose is to link any compensation offered to awards made by the Courts in false imprisonment cases.

[12]     In  December  2001  the  Cabinet  approved  the  present  criteria  -  the  1998 criteria amended in two ways. First, the criteria were extended to any miscarriages of justice arising from courts martial. In all cases, secondly, the standard to which claimants had to prove their innocence was reduced to the balance of probabilities. These criteria do not incorporate the 2000 additional guidelines. Nor were the additional guidelines referred to when those criteria were adopted by Cabinet. It is on that basis that they are said to have no place in the current criteria.

Duty to compensate

[13]     In December 1978 New Zealand ratified the International Covenant on Civil and Political Rights, and critical to this case is whether Art 14(6), which imposes on ratifying states a duty to compensate the victims of miscarriages of justice, in any sense informs our domestic law despite the reservation entered.

[14]     Article 14(6) of the Covenant says:

When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

[15]     To withhold acceding to Art 14(6), when  ratifying the Convention, New

Zealand entered the following reservation:

The Government of New Zealand reserves the right not to apply Article

14(6) to the extent that it is not satisfied by the existing system for ex gratia payments to persons who suffer as a result of a miscarriage of justice.

[16]   This oblique, even elliptically expressed, reservation was entered, as a memorandum to the Cabinet dated 14 December 1978 states, as a precaution. The intent was to ensure that in New Zealand payments of compensation remained ex gratia, and that the Crown remained immune from liability. The reservation, complicated as it is by the use of a double negative, was apparently expressed as it was to prevent Art 14(6) superimposing any such liability.

[17]     In the face of the reservation, however, the claimants maintain that, when considering their claim, the Cabinet was still obliged to comply with Art 14(6), and to ensure that they were ‘compensated according to law’. Cabinet’s criteria however, they contend, incorporating the 2000 additional  guidelines, as Cabinet evidently considered that they did, had neither that purpose nor effect. Nor did Cabinet in its decision take any account of that prescriptive principle.

[18]     The claimants assert first that the reservation must now be spent, but New Zealand has never withdrawn the reservation, and there is no basis on which that can be inferred. The Law Commission accepted in its report that the reservation still held. As recently as this year William Young J, in Brown v Attorney General (CA

39/03, 3 March 2005), para 136, remarked that Art 14(6) can have no relevance in

New Zealand because of the reservation.

[19]     The claimants next put in issue whether the reservation, at the time it was made, can have had any effect. What can have been the effect of the reservation, they ask, if in 1978 there was no ‘system’ to which it could have related? Payments of

compensation were then made as a matter of grace and favour. It was not until 1997 that the Cabinet adopted any criteria. But that argument, I consider also, cannot be sustained.

[20]     The reservation, brief and elliptical though it is, was entered with plain intent and is intelligible. The word ‘system’, in its widest sense, readily encompasses any settled process, however informal, for the award of compensation; and there was then  such  a  ‘system’  in  place  –  on  a  claim  for  compensation,  an  exercise  of discretion by Cabinet on the advice of the Minister of Justice. That is still the

‘system’, if now subject to criteria.

[21]     The claimants next contend, however, as I understand their argument, that Cabinet  was  obliged  to  take Art  14(6)  into  account  in  its  decision,  despite  the reservation. Reservations from major human rights instruments, the claimants accept, are permitted (see Arts 19 – 23 of the Vienna Convention on the Law of Treaties). They contend even so that if a reservation derogates from rights the instrument confers it must be construed as narrowly as possible: Attorney-General v Zaoui [2005] NZSC 38, para [33]; also Pinder v The Queen [2003] 1 AC 620, 14-15, 61.

[22]     To the forefront of the claimants’ argument in this respect are remarks made by Cooke P in Tavita v Minister of Immigration [1994] 2 NZLR 257, CA, when confronted with the argument that the Minister of Immigration was not obliged, when declaring New Zealand’s residence policy under the Immigration Act 1987, to take into account basic human rights instruments New Zealand had ratified. Cooke P described that argument as ‘unattractive’. It suggested that New Zealand’s adherence to those instruments had perhaps been ‘window dressing’. Where fundamental rights are involved, he said, the Courts are not powerless to intervene, even where administrative discretions appear unlimited.

[23]     This case, however, differs materially. In ratifying the International Covenant New Zealand entered an express reservation as to the obligation to compensate imposed by Art 14(6), and that reservation cannot, as the claimants might wish, be construed out of existence. And, given that reservation, there can be no inconsistency now in the Cabinet taking a decision whether to compensate entirely as a matter of

discretion without reference to Art 14(6). Furthermore that decision, in contrast to that in issue in Tavita, is not taken within a statutory context. It is an exercise of the prerogative expressing and applying Government policy. There is then also the issue of justiciability.

Justiciability

[24]     In setting the criteria for compensation, it is uncontested, Cabinet exercised the Crown’s prerogative or common law powers. It is also uncontested that the exercise of such powers is not always immune from review: Council of Civil Service Unions v Minister for the Social Service [1985] AC 375; Burt v Governor-General [1992] 3 NZLR 672, CA. What is in issue is whether this present exercise of power by the Cabinet is susceptible of challenge.

[25]     The  claimants  do  not  seek  to  challenge,  they  say,  Cabinet’s  decision  to introduce criteria by which to compensate those wrongfully convicted, who have suffered loss of liberty. Nor do they challenge Cabinet’s 2001 revised criteria. What they contend is that the 2001 revised criteria, and the additional guidelines, cannot be reconciled. Taken as a whole they are irrational and unworkable.

[26]     Executive  policies  in  statutory  and  non-statutory  contexts,  as  well  as decisions taken under such policies, the claimants contend, have been subject to the discipline of review on grounds of unfairness, irrationality and legal error. Policies have been held unlawful or irrational, if they stultify the purposes for which they have   been   introduced,   or   because   they   are   self   contradictory,   arbitrary   or unworkable. How they have been implemented has been equally open to review.

[27]     The issue in their case, the claimants contend, is not one of high policy beyond the reach of the Courts. It is an issue the Courts are well equipped to and ought to decide. It concerns the right of individuals to compensation for injustice and loss of liberty. That the additional guidelines link compensation to awards made by the Courts in false imprisonment cases makes the point. Nor, conversely, they say, is the  issue  merely  individual.   The   public   interest   is   involved.   The   right   to

compensation is recognised normatively by the International Covenant to which New

Zealand is a party.

[28]     Cabinet’s criteria, and how they are applied by the Cabinet, the Attorney General contends by contrast, lies beyond this Court’s ability to review. It is not just that the criteria have been set and are applied in exercise of the prerogative. The Crown is under no duty, it is contended, to make any payment. Payments are made ex gratia and the criteria by which Cabinet chooses to make them can have no greater force.

[29]     Such criteria cannot be justiciable, the Attorney General contends. There is nothing within our domestic law against which they can be assessed. As Tipping J stated  in  Curtis  v  Minister  of  Defence  [2002] 2 NZLR 744, CA, at 751 ‘the touchstone for judicial intervention will always be unlawfulness.’ To be justiciable a decision must be ‘susceptible of assessment in terms of legality’. The criteria, the Attorney General contends, are clearly non-justiciable for the reasons outlined by Tipping J at 752, para 27:

A non-justiciable issue is one in respect of which there is no satisfactory legal yardstick by which the issue can be resolved. That situation will often arise in cases into which it is also constitutionally inappropriate for the Courts to embark.

[30]     The Attorney General’s argument is put at its highest in R v Secretary of State for the Home Department; ex parte Harrison [1988] 3 All ER 86, where a Full Court of the Queens Bench decided that the Secretary of State, when declining compensation under a policy then confidential, did not need to disclose his reasons. Farquharson J said at 90:

First of all, it is necessary to bear in mind that this is an exercise of the royal prerogative. It is a power vested in the Secretary of State on behalf of the Crown. Accordingly, and second, that decision is not made within the framework of a statute or pursuant to the terms of any contract. Third, the very nature of the payment, being by description ‘ex gratia’ presupposes that there is no obligation to make it.

[31]     Cabinet’s criteria, the Attorney General contends, are an expression of policy allocating finite public money against many contending claims – those, as here, of the wrongly convicted and imprisoned as opposed to, for instance, those remanded in

custody pending trial and acquitted, or victims of crime. Such a decision lies beyond the province and competence of the Courts: Gillick v West Norfolk Area Health Authority [1986] 1 AC 112 (HL), Lord Bridge 193-4; see also CREEDNZ Inc v Governor-General [1981] 1 NZLR 172, 198, CA. That the exercise of the discretion is by Cabinet is itself significant: Minister for Art and Heritage and Environment v Peko-Wallsend Ltd [1987] ALR 218, Bowen CJ, 225.

[32]     In two recent decisions, however, R (Mullen) v Secretary of State [2004] 3

All ER 65, Lord Steyn and Re McFarland [2004] UKHK 17, the House of Lords did subject to scrutiny on review decisions by the Secretary of State to decline compensation. In neither case was the claimant’s challenge sustained.  But in neither case either was the House deterred because the decisions were, as here, exercises of the prerogative applying a stated government policy. By parity of reasoning, the claimants contend, Cabinet’s promulgation of the criteria and the guidelines and its decision in their case are no less open to review.

[33]     Of the two cases Re McFarland is the more pointed, but does not extend as far as the claimants would wish.   Lord Bingham of Cornhill, in whose judgment Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe joined to comprise the majority, at para 7, described the decision whether to pay compensation as ‘difficult and sensitive’ for two reasons, the first of which was this:

… Ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just desserts.  While  the  public  might  approve  sympathetic  treatment  of  the former, they would be understandably critical if significant sums of public money were paid to the latter.

In the view that Lord Bingham and those who joined him took of the case there was no need to discuss the wider issue arising here.

[34]     Lord Scott of Foscote did speak to the issue, at para 41, and did not rule out some remedy on review if the prerogative were exercised arbitrarily, but did not endorse the possibility either, and identified the impediments. He said at para 41:

It is now well settled that the Crown prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review … . But the scope of the Court’s powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one.

[35]     The most confident statement on which the claimants can rely comes from

Lord Steyn, who said at para 24:

… policy statements are an important source of individual rights and corresponding duties. In a fair and effective public law system such policy statements must be interpreted objectively in accordance with the language employed by the Minister. The citizen is entitled to rely on the language of the statement, seen as always in its proper context. The very reason for making the statement is to give guidance to the public. The decision maker, here a Minister, may depart from the statement but until he has done so, the citizen is entitled to ask in a Court of law whether he fairly comes within the language of the publicly announced policy. That question, like all questions of interpretation, is one of law.

[36]     In promulgating criteria and guidelines to which it committed itself to adhere, Cabinet might be thought to have rendered itself, in the exercise of the prerogative, as vulnerable to scrutiny as the Secretary of State on the bases identified by Lords Scott and Steyn – rationality, fairness and accuracy. But there are reasons for pause and the first is those statements did not command the support of the majority, and are not as the majority decision demonstrates essential to the decision.   They are statements of opinion.

[37]     Secondly, wide though they seemingly are, they are not to be divorced from their context. The United Kingdom ratified the Convention in 1976 without any reservation as to Art 14(6). In 1985 the then Home Secretary in a parliamentary statement committed himself to comply with Art 14(6). His successors have since. The obligation was given effect by s 133 of the Criminal Justice Act 1988, but the parliamentary statement remains extant.   It is apparently wider than s 133, and in some cases is still apparently acted on: R (Mullen) v Secretary of State [2004] 3 All

ER 65, paras 25-29, Lord Steyn. The statement there in issue was not then, as the

Cabinet criteria and guidelines are, an expression of policy unconstrained by Art

14(6).    It  was  an  undertaking  to  comply  with  Art  14(6);  the  duty  the  United Kingdom, unlike New Zealand, had assumed when ratifying the International Covenant.

[38]     There  are  further  reasons  for  pause.    They  are  those  identified  in  the argument  for  the  Attorney  General,  which  I  have  set  out  already  and  which  I consider  have  significant  merit.  The  criteria  and  guidelines  in  issue  here  are decisions of Cabinet, not of a ministerial officer.   They rest finally on a policy calculus.  And none of the New Zealand cases go so far.

[39]     This issue is of such significance that, if I were put to the point, I would like the English Court of Appeal in R (ABCIFER) v Defence Secretary [2003] QB 1397, at para 37, when considering whether the Wednesbury test survives, hold back. To reserve the issue for a higher court I would hold that Cabinet’s decisions, in the circumstances of this case, are not susceptible of review.  But I need not, I think, go that far.  For reasons that I shall shortly set out Cabinet’s decisions, I consider, were open to it to make and involve no error.

[40]     The standard against which Cabinet’s decisions, relevant to this case, are to be measured, if they are to be measured at all, can only be, it seems to me, Wednesbury unreasonableness. That test, first seen as the single test for unreasonableness, may now seem as Lord Cooke of Thorndon said in R v Secretary of State for the Home Department, ex parte Daly [2001] 2 AC 532, at para [32],

‘unfortunately retrogressive.’ But no less searching level of scrutiny is apt.   As Professor Joseph says in Constitutional and Administrative Law in New Zealand, 2nd edition, at page 832:

The Courts typically employ Wednesbury principles when reviewing the decisions of Government Ministers … or where the impugned decision is pre-eminently about policy or involves political or subjective evaluation.

Two examples are Nottinghamshire County Council v Secretary for State for the Environment [1986] 1 AC 240 (HL) and Te Runanga O Ngai Tahu v Attorney General & Others (High Court, Auckland, CIV 1113/03, 6 November 2003).

[41]     Also, that conclusion seems to me to be consistent with the standard of scrutiny that Lord Steyn himself proposed in Re McFarland, against which expressions and applications of policy are to be measured. The standard, he said, ought not to be that applying to primary or subordinate legislation. Rather, he said:

It seems sensible that a broader and wholly untechnical approach should prevail. But what is involved is still an interpretative process conducted by a Court which must necessarily be approached objectively …

That, indeed also, has been the approach preferred by our own Court of Appeal.

[42]      In Patel v Chief Executive of the Department of Labour [1997] NZAR 264 the Court identified difficulties with the Government’s residence policy, set and published under the Immigration Act 1987, but declined to find the policy ultra vires. As a matter of ‘reasonable construction’, the Court said, the policy was capable of sense. As to the standard to apply the Court said at 270:

A policy document, such as the one in issue, is not to be construed with the strictness, which might be regarded as appropriate to the interpretation of a statute or a statutory instrument. It is a working document … It must be construed sensibly according to the purpose of the policy and the natural meaning of the language and the context in which it is employed, that is, as part of a comprehensive and coherent scheme.

[43]     It is on that principle that the Government’s criteria and additional guidelines for compensation must be considered. But there is the prior issue whether Cabinet, when adopting the 2001 revised criteria, wittingly or unwittingly jettisoned the 2000 additional guidelines.

Scope and content of criteria

[44]     What the Cabinet Policy Committee approved on 12 December 2001 and the Cabinet on 17 December, the claimants say, were criteria defined in the Minister’s memorandum to the Committee - criteria ‘to replace the current criteria for assessing compensation for persons wrongfully convicted with the amended criteria set out in the attached annex;’ the December 2001 revised criteria. Moreover, the Minister then advised the Committee that the 1998 criteria had in general worked well, and been

used successfully to assess two claims. The 2000 additional guidelines had not then had any use and, so the claimants say, must have been considered otiose.

[45]     The Attorney General contends, to the contrary, that the additional guidelines were introduced in response to the recommendation made in one of those two claims, and had not then ceased to be relevant.  That this was so is evident, he says, from the Minister’s memorandum to the Cabinet Policy Committee in 2000 when the additional guidelines were adopted. The Minister then said:

… I think it is urgent that Cabinet establish Additional Guidelines on the quantum of future compensation payments. The other more complex issues can be dealt with in a review I propose to initiate later this year. That review could also include any fine tuning of the proposed Additional Guidelines on quantum of compensation that may be necessary.

[46]     Those  later  priorities  were  met,  the  Attorney  General  contends,  by  the December  2001  revision  of  the  general  criteria;  and  the  Minister  did  not  then propose that the additional guidelines be either altered or revoked. Had that been intended it would have been accomplished formally.

[47]     Of the two the Attorney General’s  account  seems  to  me  distinctly more probable than that proposed for the claimants. The 2000 additional guidelines were introduced to complement the 1998 criteria, to bring greater precision to the calculation of compensation. The December 2001 criteria revisions went to other issues and did not call for any reference to the additional guidelines. There was no need to bring them into account. I am satisfied that the guidelines remain extant.

[48]     The   real   question   is   whether   the   additional   guidelines,   instead   of complementing the 2001 revised criteria, so cut across them as to make them unworkable; and whether that could only have resulted, as the claimants say, in offers of compensation to them that were arbitrary and insufficient. To understand that one must turn to the criteria and the guidelines in their detail.

Revised criteria and additional guidelines

[49]     The 2001 revised criteria, which are as I have said with two amendments the

1998 criteria, are as follows:

COMPENSATION AND EX GRATIA PAYMENTS FOR PERSONS WRONGFULLY CONVICTED AND IMPRISONED IN CRIMINAL CASES

Criteria for eligibility and factors to be taken into account in determining the size of payments

1.        The category of claimants who shall be eligible to receive compensation or ex gratia payment in respect of being wrongfully convicted of offences (qualifying persons) is limited to those who:

(a)Have served all or part of a sentence of imprisonment; and either

I.         Have  had  their  convictions  quashed  on  appeal, without   order   of   re-trial,   in   the   High   Court (summary convictions); Court of Appeal (including references  under  section  406  of  the  Crimes  Act

1961); or Courts Martial Appeal Court or

II.       Have received a free pardon under section 407 of the

Crimes Act 1961; and

(b)      Are alive at the time of the application.

2.Any qualifying  person  may  apply  to  the  Minister  of  Justice  for compensation or ex gratia payment and the Minister shall refer those cases meriting further assessment to a  Queen’s Counsel appointed by the Minister for that purpose.

3.        …

4.The  Queen’s   Counsel   shall   report   to   the   referring   Minister, certifying whether he or she is satisfied that the claimant is innocent on the balance of probabilities. If concluding this is so, he or she will also recommend an appropriate amount of compensation/ex gratia payment, taking into account the following factors:

(a)the  conduct  of  the  person  leading  to  Prosecution  and conviction;

(b)      whether the Prosecution acted in good faith in bringing and

continuing the case;

(c)       whether the investigation was conducted in a reasonable and proper manner;

(d)      the seriousness of the offence alleged;

(e)       the severity of the sentence passed;

(f)       the  nature  and  extent  of  the  loss  resulting  from  the conviction and sentence.

5.Losses are in respect only of the period following conviction and are defined as follows:

Non-pecuniary losses

(a)       loss of liberty;

(b)loss  of  reputation  (taking  into  account  the  effect  of  any apology to the person by the Crown);

(c)       loss or interruption of family or other personal relationships;

and

(d)       mental or emotional harm.

Pecuniary losses

(a)loss   of   livelihood,   including   loss   of   earnings,   with adjustments for income tax and for benefits received while incarcerated;

(b)       loss of future earning abilities;

(c)       loss  of  property  or  other  consequential  financial  losses resulting from detention or imprisonment; and

(d)       costs incurred by or on behalf of the person in obtaining a

pardon or acquittal.

6.Compensation may comprise an ex gratia payment by the Crown, a public statement of the person’s innocence and in appropriate cases a public apology by the Crown.

7.Claimants shall have no right of appeal against an assessment of compensation/ex gratia payment and in accepting any offer made they must agree to forego and discontinue any other claims against the Crown in respect of  matters relating to the convictions that led to the offer of compensation/ex gratia payment.

[50]     The additional guidelines adopted by Cabinet on 24 July 2000, on the advice of the Minister of Justice, to supplement the 1998 criteria and treated by Cabinet on this claim as supplementing the 2001 revised criteria, are these:

ADDITIONAL GUIDELINES ON QUANTUM OF FUTURE COMPENSATION

1.The   calculation   of   compensation   payments   under   the Cabinet criteria should be firmly in line with the approach taken by New Zealand courts in false imprisonment cases;

2.The  starting  figure  for  calculating  non-pecuniary  losses should be set at $100,000 and that this base figure is to be multiplied on a pro rata basis by the number of years spent

in  custody  so  that  awards  for  non-pecuniary  losses  are proportional to the period of detention;

3.The figure obtained under the calculations referred to above should be then added to the figure representing the amount assessed for the presence/absence of the factors outlined in the Cabinet guidelines;

4.Only  those  cases  with  truly  exceptional  circumstances would  attract  general  compensation  that  is  greater  than

$100,000, and that on average the relevant figure should

even out around $100,000.

5.A   claimant’s   pecuniary   losses   should   be   calculated separately, and the resulting figure should then be added to the  amount  assessed  for  non-pecuniary  loss,  the  sum  of which represents the total compensation payable to a claimant.

Instructions and recommendation

[51]     In a letter to Ms McDonald QC, dated 16 December 2002, the Chief Legal

Counsel of the Ministry of Justice confirmed that she was to take into account the

2000 additional guidelines as well as the 2001 revised criteria, when making her recommendation. The guidelines, the Chief Legal Counsel said, were introduced in

2000 because:

While the assessment of pecuniary losses was quite straightforward, quantifying non-pecuniary losses proved to be difficult in the absence of clear guidance as to an appropriate figure from which the calculation should commence.

[52]     The Chief Legal Counsel then set out her understanding of the calculation called for:

The calculation of compensation under the new guidelines involves three stages. The first stage deals with the calculation of an appropriate amount for loss of liberty. Under the additional guidelines, the starting figure for loss of liberty is $100,000. This base figure is then multiplied on a pro rata basis by the number of years spent in custody so that an amount for loss of liberty is arrived at that is proportional to the period of detention.

The second stage is to weigh up the factors set out in the 1998 Cabinet criteria to determine an appropriate amount for the non-pecuniary losses incurred by a claimant. There is a limited degree of discretion in this stage, but Cabinet has agreed that only those cases with truly exceptional circumstances would attract an award under this stage that is greater than

$100,000. On average, the relevant figure under this stage should even out at around $100,000.

Where there are aggravating features present such as Police misconduct or the fabrication of evidence by the prosecution, then this would indicate that the case falls at the higher end of the range. Quantum for non-pecuniary losses should be adjusted upwards from $100,000. Alternatively, where there are mitigating factors such as the conduct of the accused that may have contributed to the wrongful conviction, then this would suggest that the case is at the lower end of the continuum of cases envisaged by Cabinet. Accordingly, quantum for non-pecuniary loss should be adjusted downwards from $100,000.

The last stage is to calculate the claimant’s pecuniary losses separately.

The sum of the figures from all three stages represents the total amount of compensation payable to a claimant.

[53]     Attached to the letter were the calculations of the compensation payable in the two cases in which the 1998 criteria had been applied, before the introduction of the 2000 guidelines, reworked as a three-phase calculation.

[54]     In her report Ms McDonald QC complied with that three-phase process. As to loss of liberty, which is all that is in issue in this case, she allocated to each claimant

$60,000 on account of loss of liberty for seven months; seven twelfths of $100,000, which Cabinet had approved as payable for loss of liberty for one year. In the case of Ms Akatere and Ms Vini she added, at the second phase, for aggravating factors (b), (c) and (d) of the Cabinet criteria $75,000; for Ms Fuataha, on the same basis,

$77,500. Hence her recommendation that Ms Akatere and Ms Vini receive $135,000 each on account of non-pecuniary losses, and Ms Fuataha $137,500.

[55]     These then are the method of calculation that the claimants contend to be unprincipled and unworkable, and the actual calculation that they contend to be arbitrary and unfair.

Irrational, arbitrary and unfair

[56]     The criteria, coupled with the general guidelines, the claimants contend, must be assessed against the purposes for which the Cabinet Strategy Committee endorsed the 1998 guidelines:

… the objectives of compensating persons who are wrongly convicted shall be to make good losses incurred when a person has been wrongly deprived of liberty, vindicate innocent defendants and enhance public confidence in the justice system; …

[57]    Measured against those purposes, the claimants contend, the criteria and additional guidelines, tied one to the other, are irrational, arbitrary and unfair.

[58]     There can be no quarrel, the claimants accept, with the purpose of the first additional guideline that enlarges the fourth and fifth criteria by requiring that compensation payments ‘be firmly in line with the approach taken by New Zealand Courts in false imprisonment cases’, that is be fixed according to common law principles. But, they contend, the remaining criteria cut across that possibility.

[59]     Antithetical to that purpose, the claimants say, and to the fourth and fifth

2001 criteria is additional guideline two, which sets at $100,000 the ‘starting figure for calculating non-pecuniary losses’. That figure is ‘to be multiplied on a pro rata basis by the number of years spent in custody so that awards for non-pecuniary losses are proportional to the period of detention’. The result, it is contended for each day in custody, is the paltry sum of $273.97. Also guideline two concerns only the length of the period of detention. Loss of reputation, and interruption or loss of relationship or mental or emotional harm, are not catered for.

[60]     Additional  guideline  three  then,  the  claimants  contend,  requires  that  the figure derived from the second guideline ‘be added to the figure representing the amount assessed for the presence/absence of the factors outlined in the Cabinet Guidelines’.  That  can  only  be  a  reference  to  the  ‘factors’  in  criterion  four (presumably excluding factor (f)), not the heads of non-pecuniary loss identified in the fifth criterion. The effect must be, it is contended, despite the words ‘should then be added to’, to reduce the starting figure under the second guideline.

[61]     Additional guideline three seemingly requires, therefore, the claimants say, a separate figure be assessed in isolation, taking into account the presence of factors (a) – (e) listed in criterion four. Such an approach is inconsistent with the fourth criterion,  which  contemplates  a  single  overall  ‘appropriate  amount’,  taking  into

account all listed factors and all heads of non-pecuniary loss identified in the fifth criterion. That, the claimants say, is arbitrary and unfair.

[62]    Additional guideline four contemplates that ‘only those cases with truly exceptional circumstances would attract general compensation that is greater than

$100,000, and that on average  the relevant figure should even out around $100,000.’ That is a limit on the assessment made under the earlier guidelines, wholly inconsistent with ‘appropriate compensation’ under the fifth criterion. It is inconsistent with additional guidelines one, which requires parity between the compensation offered and damages awards for false imprisonment.

Rational, reasonable and fair

[63]     These criticisms of the revised criteria and the additional guidelines, while carefully considered, to my mind lack cogency.   They rest on two misconceptions the first of which is that the link made in the first additional guideline to awards of damages in false imprisonment cases is a precise purpose against which the validity of the guidelines as a whole is to be measured

[64]     The purpose of the additional guidelines is to bring within defined bounds payments of compensation, under the general criteria, to the victims of miscarriages of justice, who like competing claimants, similarly placed, the victims of crime or persons remanded in custody and acquitted, enjoy no enforceable right. They do so by prescribing a  process  of  calculation  and  fixing  a  range.  The  first  additional guideline identifies one such limiting point of reference and that is all it does.

[65]     In fixing the boundaries for compensation Cabinet was free to, and did, resort to such cases as Manga v Attorney General [2000] 2 NZLR 65, Dunlea v Attorney General [2000] 3 NZLR 136, 36 and Neilsen v Attorney General [2001] 3 NZLR

433, on which the claimant relies.  But that was as an aid.  Those cases are not a fetter. They do not confer on the claimants any right to compensation that they do have otherwise.   Nor do they confer standing to challenge the guidelines for discretionary payments that Cabinet has elected to adopt.

[66]     The second misconception underlying the claimants’ criticisms of the criteria and the additional guidelines is that they are less generous than they actually are – that  the  $100,000  figure  in  additional  guideline  two  for  one  year  in  custody, increased or reduced to match the actual time in custody, is intended to compensate for all heads of loss and all mitigating or aggravating factors, subject always to an arbitrary ceiling depending on whether or not the case is ‘exceptional.’

[67]     In  reality,  as  the  letter  from  the  Ministry’s  Chief  Legal  Counsel  to  Ms McDonald QC, dated 16 December 2003 makes clear, included also in the fourth additional guideline is second $100,000 figure for the other heads of non-pecuniary loss, to which the  ceiling can apply; and pecuniary losses are added to the aggregate of the two.

[68]     That letter I consider states succinctly, clearly and accurately how the general criteria and the additional guidelines mesh. It confirms that they mesh coherently, and that they compensate intelligibly for all the heads of loss identified against the aggravating and mitigating factors listed.   They are not unworkable, they are not arbitrary and they are not unfair. Nor can Cabinet’s decision be assailed on the basis that Ms McDonald QC misapplied the criteria.  She did not.  She applied the criteria accurately.

Conclusions

[69]     For the reasons I have given the claimants’ case must fail.  They would also have faced difficulties at the ultimate point.   Certiorari and mandamus do not lie against the Crown: High Court Rule 622 and s 12(1) of the Crown Proceedings Act. Declaratory relief, also, would have been of doubtful use to them, because ultimately it is for the Cabinet to say on what terms it will make compensatory payments that it has no duty to make, and to which the claimants have no enforceable right.

[70]     There will be judgment for the Attorney General.   If the Attorney General seeks costs that is to be by memorandum filed and served by 31 January 2006; and

any reply by the claimants by 14 February 2006.  Scale 2B I consider applies.

P.J. Keane J