Attorney-General v Chapman
[2011] NZSC 110
•16 September 2011
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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 120/2009 [2011] NZSC 110 |
| BETWEEN ATTORNEY-GENERAL |
| AND MERVYN CHAPMAN |
| Hearing: 6–7 December 2010 |
| Court: Elias CJ, McGrath, William Young, Gault and Anderson JJ |
| Counsel: D B Collins QC Solicitor-General, C J Curran and B L Orr for Appellant |
| Judgment: 16 September 2011 |
JUDGMENT OF THE COURT
AThe appeal is allowed and the matter remitted to the High Court.
BQuestion (a) is answered as follows:
The Court does not have jurisdiction to hear and determine the respondent’s claim for public law compensation for alleged breaches by the judiciary of ss 25 and 27 of the New Zealand Bill of Rights Act 1990 occurring in the course of determining his criminal legal aid application and his appeal against conviction.
CThere will be no order for costs.
REASONS
Para No
Elias CJ [1]
McGrath and William Young JJ [94]
Gault J [211]
Anderson J [216]
ELIAS CJ
A right without a remedy is “a vain thing to imagine”, as Holt CJ recognised in 1704.[1] That rights are vindicated through remedy for breach is fundamental to the rule of law. Since enactment of the New Zealand Bill of Rights Act 1990, the provision of effective remedy for breach of the “human rights and fundamental freedoms” affirmed in the Act has been the responsibility of the courts.[2] At issue in the present case is whether New Zealand domestic law prevents damages being awarded, when they would afford effective remedy, if the breach of rights is caused by judicial action.
[1]Ashby v White (1703) 2 Ld Raym 938 at 953, 92 ER 126 at 136 (KB).
[2]See R v Goodwin [1993] 2 NZLR 153 (CA) at 191 per Richardson J; also “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 22–23.
What is effective remedy for Bill of Rights breach differs according to the particular breach and its circumstances. To date, the remedies ordered in New Zealand have included exclusion of evidence,[3] stay of proceedings,[4] directions to administrative and judicial bodies,[5] development of the common law to achieve consistency with the Bill of Rights Act,[6] and damages.[7] In large part such remedies have been adapted for the enforcement and protection of rights from “[t]he ordinary range of remedies”.[8] But the courts have recognised that the Act requires “development of the law when necessary” by the courts if they are not to fail in the duty to give a remedy where rights have been infringed.[9]
[3]See, for example, R v Te Kira [1993] 3 NZLR 257 (CA).
[4]See, for example, Martin v Tauranga District Court [1995] 2 NZLR 419 (CA).
[5]As in Bakker v District Court at Te Awamutu HC Hamilton CP35/99, 6 August 1999 per Tompkins J.
[6]See Hosking v Runting [2005] 1 NZLR 1 (CA) at [111] per Gault P and Blanchard J and at [229] per Tipping J.
[7]See Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
[8]Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA) at 676.
[9]Ibid.
In 1994 one such development by the Court of Appeal recognised a public law claim for damages against the State in circumstances where claims in tort under the vicarious liability of the executive branch of the government established by s 6 of the Crown Proceedings Act 1950 for the torts of its servants (in that case, police officers) were the subject of qualified immunities.[10] The claim for damages first accepted in Simpson v Attorney-General [Baigent’s case][11] and Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General[12] was held to be a direct one against the State for breach of the Bill of Rights Act, not a vicarious claim for civil wrongs by its servants, and was therefore unaffected by the immunities.[13]
[10]Under the Police Act 1958, s 39, and the Crimes Act 1961, ss 26 and 27.
[11]Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).
[12]Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 (CA).
[13]Gault J, dissenting on the direct claim in public law, would have read down the scope of the immunities, in application of s 6 of the New Zealand Bill of Rights Act 1990: see Baigent at 714–715.
The direct public law remedy does not substitute the State for the public officials who would, in the absence of some form of immunity, otherwise be responsible in tort. It is distinct from private law remedies,[14] and is available for denial of rights rather than error in result or procedure which can be adequately corrected within the process in which it occurs. State remedial responsibility is appropriate for such denial of rights and is consistent with the obligations of the State under the International Covenant on Civil and Political Rights, which the New Zealand Bill of Rights Act was enacted to fulfil in domestic law.[15] Article 2(3) of the Covenant obliges the States party to it to provide an “effective remedy” in domestic law for breaches of rights “notwithstanding that the violation has been committed by persons acting in an official capacity”.[16]
[14]Ibid, at 677 per Cooke P.
[15]New Zealand Bill of Rights Act 1990, long title. New Zealand law must be construed, where possible, to give effect to its international obligations: Hamed v R [2011] NZSC 101 at [36]; Sellers v Maritime Safety Inspector [1999] 2 NZLR 44 (CA) at 57.
[16]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), art 2(3)(a).
The direct remedy was endorsed by the Law Commission when it was asked to review Baigent.[17]It has been applied in cases since 1994, including by this Court in Taunoa v Attorney-General.[18]The number of cases in which public law damages have been sought from the State since 1994 is small, suggesting that early predictions of a flood of claims to vex the administration of justice are well astray, as such predictions usually are.[19]
[17]Law Commission Crown Liability and Judicial Immunity: A Response to Baigent’s case and Harvey v Derrick (NZLC R37, 1997) at 35.
[18]Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429. Baigent damages were also referred to favourably in Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [66] (see also fn 138).
[19]This was also the view expressed by the Law Commission: see Crown Liability and Judicial Immunity at 20–21 and 68.
The Attorney-General does not seek to argue in the present appeal that this Court should reconsider the availability of a direct monetary remedy against the State in circumstances such as those in Baigent and Taunoa. But he maintains that such cases are distinguishable because they concerned breaches by officials, for which the executive branch of government is properly responsible and in respect of which the Crown is the appropriate defendant. In the present case the breaches in issue were ones committed by the judicial arm of government. The Attorney‑General contends that the Crown is not liable under the public law remedy adopted in Baigent for acts of the judicial branch of government and that domestic law has no concept of liability of the State for wrongs beyond the liability of the Crown for its servants. He argues that direct liability for judicial breaches of rights would undermine judicial independence and the common law immunity of judges, themselves constitutional principles. In any event, it is said that the Attorney‑General, as a member of the executive branch of government, is not the appropriate defendant in any such claim.
The appeal comes before the Court on preliminary questions of law which would prevent the possibility of a public law claim against the State for judicial breaches of the New Zealand Bill of Rights Act. We are not asked to determine whether public law damages would be appropriately awarded to Mr Chapman in this case. That may well depend on an assessment at trial as to whether he has already obtained adequate remedy through the criminal justice processes.
In summary, and for the reasons more fully developed in what follows, I consider that it would be contrary to the scheme and purpose of the New Zealand Bill of Rights Act if those deprived of rights through judicial action are denied the opportunity to obtain damages from the State, where an award of damages is necessary to provide effective remedy. Under the Act, all branches of the government, including the judicial branch, are bound to observe and protect the rights affirmed.[20] A gap in remedy for judicial breach is contrary to the obligation of the State to provide effective remedy in domestic law. Excluding remedy for judicial breaches would leave a large remedial hole because many of the rights affirmed in the Act are afforded principally within judicial process through discharge of judicial function. They include in particular the “[m]inimum standards of criminal procedure” contained in s 25 and the “[r]ight to justice” contained in s 27. If breaches through judicial act are irremediable, such rights are undermined.
[20]New Zealand Bill of Rights Act 1990, s 3(a).
Those whose rights have been breached by judicial act would have a claim under the First Optional Protocol to the International Covenant on Civil and Political Rights to which New Zealand is a party. The incongruity and inconvenience of permitting an international remedy but not a domestic one was a factor in the reasoning of two of the Judges in Baigent in granting a remedy against the State.[21] Although in that case the breaches were those of the executive branch of government, the incongruity would be as marked in the case of judicial breach.
[21]Baigent at 691 per Casey J and 700 per Hardie Boys J.
I do not consider that the reasoning in Baigent permits exclusion of the direct remedy against the State for cases arising out of judicial breach. Acceptance of the argument for the Attorney-General would therefore undermine the reasons in Baigent, even though its formal overruling is not sought.
In Maharaj v Attorney-General of Trinidad and Tobago (No 2) the Privy Council granted a direct remedy by way of damages for judicial breach of constitutional rights of due process.[22] Maharaj was applied by all Judges in the majority in Baigent.[23] I would continue to apply it in New Zealand because I think the approach is consistent with the obligations imposed under the New Zealand Bill of Rights Act and is supported by international and comparative case law. Nor, for reasons I explain further below, do I accept the view that Maharaj has been effectively overruled by subsequent Privy Council decisions.[24] More importantly, I do not accept there are good policy reasons for making an exception in the general remedial response for denial of rights for those attributable to judicial action.
[22]Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC). Maharaj was mentioned in the White Paper preceding the passage of the New Zealand Bill of Rights Act 1990: see “A Bill of Rights for New Zealand: A White Paper” [1984–1985] I AJHR A6 at 115.
[23]Baigent at 677 per Cooke P, at 692 per Casey J, at 700 per Hardie Boys J, and at 718 per McKay J.
[24]Contrary to the view taken by William Young J in Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [127]–[132] and [142] and referred to in the judgment of McGrath and William Young JJ at [159].
The approach suggested on behalf of the Attorney-General limits and distorts remedial options by permitting the correction of judicial breach only through the judicial process in which it occurs (as through appeal) or through established collateral challenge (as in judicial review of inferior courts), while excluding a remedy in damages. That is contrary to the approach taken to date in New Zealand case law, which has preferred to look to the full range of remedies in tailoring a response to give effective and appropriate remedy in the circumstances.[25]
[25]See Baigent at 676 per Cooke P; see also the comments of Richardson J in Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 427–428.
Nor, as is explained in what follows, do I consider that judicial immunity is properly engaged in a direct remedy against the State for damages, any more than the statutory and common law immunities of the police in Baigent were engaged in the direct remedy there granted against the State. The common law immunity of judges (the scope of which may indeed require reconsideration for conformity with the New Zealand Bill of Rights Act in a case where it is put in issue)[26] has no application to, and should not be extended to shield, the distinct liability of the State for public law remedy for breaches of rights.
[26]As Gault J in Baigent considered was necessary in respect of the statutory immunity of police officers, in the light of s 6 of the New Zealand Bill of Rights Act: see Baigent at 714–715.
I refer throughout to the public law damages recognised in Baigent as being claimed against “the State”. That is the term used in Maharaj[27] and it was used by most of the judges in Baigent,[28] sometimes interchangeably with “the government” or “the Crown”. It was submitted by the Attorney-General that, while such terminology may be accurate for the Constitution of Trinidad and Tobago (under which the claim in Maharaj was brought), New Zealand domestic law knows no such concept as “the State”. It is also part of his argument that references in the Bill of Rights Act and in the Crown Proceedings Act to “the Crown” are properly to be understood as references to the executive branch and that there is no procedure by which “the State” can be called to account in New Zealand courts. I consider this position is contrary to the rule of law. For the reasons given below, I am of the opinion that within the constitutional space in which the Bill of Rights Act and the Crown Proceedings Act both operate, “the Crown” means “the government of New Zealand” or “the State”. The Crown, so understood, is subject to law and enjoys no procedural immunity in the courts.[29] Because, however, in other contexts, the expression “the Crown” is often used of the executive branch alone,[30] I use the term “the State” to make it clear that, in the Bill of Rights context, “the Crown” extends to all three branches of the government of New Zealand described by s 3(a). Similarly, to avoid confusion, I refer throughout to the appellant as “the Attorney‑General”, rather than speaking of the Crown (as is sometimes accurate where the Attorney‑General is a party). The New Zealand constitution and New Zealand legislation make the Attorney-General the appropriate defendant in proceedings for remedy arising out of breach by the judicial arm of government.
A “fundamentally flawed and unlawful” system
[27]See, for example, Maharaj at 397.
[28]Baigent at 677 per Cooke P, at 691 per Casey J, at 697 per Hardie Boys J, and at 718 per McKay J.
[29]It may claim privilege in a limited category of cases (for example, what was once known as Crown privilege or public interest immunity, as discussed in Choudry v Attorney-General [1999] 3 NZLR 399 (CA)), but that is not the same as a total immunity from monetary damages in the courts, which the Attorney-General’s argument in the present case would provide, at least in cases of judicial breach.
[30]Such as in criminal prosecutions of indictable offences.
As a “[m]inimum standard of criminal procedure”, everyone convicted of an offence has the right under s 25(h) of the New Zealand Bill of Rights Act 1990 “to appeal according to law to a higher court”. As part of the “[r]ight to justice” every person is entitled under s 27(1) of the New Zealand Bill of Rights Act to “the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law”. On the basis determined by the Privy Council in R v Taito,[31] it seems well arguable that Mervyn Chapman was denied both the right to appeal and the right to the observance of the principles of natural justice when the Court of Appeal in October 2000, in accordance with its then practice in criminal appeals, refused him legal aid and, in consequence, dismissed on an ex parte basis his appeal against convictions on four offences of sexual violation and indecencies.[32]
[31]R v Taito [2003] UKPC 15, [2003] 3 NZLR 577.
[32]R v Finlayson CA186/00, 19 October 2000.
In Taito the Privy Council held that the ex parte procedure was contrary to the legislation governing appeals and the right to appeal contained in s 25(h) of the New Zealand Bill of Rights Act. The ex parte decisions by which appeals were dismissed were described by Lord Steyn, delivering the opinion of the Privy Council, as “purely formalistic or mechanical acts involving no exercise of judicial judgment”.[33] No reasoned decision preceded dismissal of the appeals, as was required. The review procedure adopted by the Court was “from inception irredeemably flawed”.[34] Circulation of written notes between the judges failed to “satisfy minimum requirements of judicial adjudication by an appellate Court for the taking of a decision effectively determining an appeal as of right”.[35] Nor, looking “globally” at the practice, did the process meet the requirements of natural justice.[36] Decisions that the appeals “were in truth unmeritorious” could “only be made after observance of procedural due process. Unfortunately, the system failed this basic test.”[37] The Privy Council felt also “driven to the conclusion” that the practice of the Court had a discriminatory effect because those denied representation were also denied copies of the transcript of the summing-up, which deprived the appellants of the ability to exercise effectively their rights to appeal:[38]
This could not have happened in the case of legally represented appellants.
[33]At [14].
[34]At [17].
[35]At [18].
[36]At [19].
[37]Ibid.
[38]At [20].
The practice distinguished in effect between rich and poor. Altogether, the Privy Council considered that the system “operated arbitrarily”:[39]
Certainly, it was contrary to fundamental conceptions of fairness and justice. The appellants were entitled to the observance of the principles of natural justice or fairness. In the landmark case Ridge v Baldwin Lord Morris of Borth-y-Gest observed about the principles of natural justice “here is something basic to our system: the importance of upholding it far transcends the significance of any particular case”.
[39]Ibid (footnotes omitted).
The appeals having been dismissed “pursuant to a fundamentally flawed and unlawful system”, the Privy Council upheld the appellants’ “systemic challenges to the system under which their appeals were dismissed”.[40] As a result, it held that the dismissal of all such appeals was “of no force or effect”.[41]
[40]At [21] and [23].
[41]At [14].
Mr Chapman was not one of the appellants in Taito, but his appeal was dismissed in October 2000 under the ex parte procedures.[42] He had been sentenced to six years’ imprisonment following his convictions and was serving that sentence when he brought a second appeal through the extraordinary process afforded after Taito to appellants whose appeals had been dismissed ex parte.[43] On the second appeal in November 2003, Mr Chapman’s convictions were quashed.[44] He was released on bail pending retrial. Although a rehearing of the charges was ordered, the prosecution was unable to proceed and Mr Chapman was discharged under s 347(1) of the Crimes Act 1961 in July 2004.
The appeal
[42]R v Finlayson CA186/00, 19 October 2000.
[43]R v Smith [2003] 3 NZLR 617 (CA).
[44]R v Finlayson CA228/03, 28 November 2003.
Mr Chapman has filed proceedings in the High Court claiming “public law compensation” for breach of the rights secured to him by ss 25 and 27 of the New Zealand Bill of Rights Act. The Attorney-General, named as defendant in the proceedings, was successful in obtaining orders in the High Court under rr 418 and 419 of the High Court Rules transferring into the Court of Appeal the questions of law as to the availability of public law damages for judicial breaches of the Bill of Rights Act.[45] Transfer into the Court of Appeal was found by Chisholm J in the High Court to be appropriate on the basis that the Crown argument, distinguishing Baigent and not following Maharaj, was consistent with views expressed in the Court of Appeal by William Young J in Brown v Attorney-General[46] and applied by Fogarty J in McKean v Attorney-General,[47] a decision then under appeal which could be heard in the Court of Appeal concurrently with the questions of law removed into that Court in the present case.
[45]Chapman v Attorney-General HC Christchurch CIV-2006-409-1409, 19 March 2008.
[46]Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [142].
[47]McKean v Attorney-General [2007] 3 NZLR 819 (HC).
In the Court of Appeal the questions, slightly recast, were answered to reject the Attorney-General’s contentions.[48] Similarly, in the Court of Appeal in McKean,[49] heard by the same panel as the present appeal, the decision in the High Court was overturned. In Mr Chapman’s case, the Court of Appeal held unanimously that public law compensation was, in principle, available for judicial breaches of the New Zealand Bill of Rights Act, notwithstanding the subsequent overturning of his convictions. It also held that the Attorney-General was the proper defendant in such proceedings and that the Attorney-General could not in the proceedings claim the immunity that attaches to judges. The Court of Appeal declined to be drawn on whether public law compensation was an appropriate remedy in the case, taking the view that it was not appropriate to answer such a question “in the abstract”.[50]
[48]Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317.
[49]McKean v Attorney-General [2009] NZCA 553.
[50]At [109].
In rejecting the contention for the Attorney-General that Baigent damages should be confined to remedy of breaches only by the executive, the Court of Appeal held that there was nothing in the decision in Baigent to suggest that the principles there applied related only to breaches of the Bill of Rights Act by the executive branch of government:[51]
Indeed, quite to the contrary, the statements made in that case were general statements about the need for there to be effective remedies for breaches of the Bill of Rights …. If the majority Judges in Baigent’s Case considered that there was effectively a carve-out exception for judicial acts then it would have been expected that they would have made that explicit. To the contrary, the fact that three of the majority Judges relied on the fact that the judiciary is subject to the Bill of Rights under s 3 might rather suggest that those Judges considered compensation would be available for judicial breaches.
[51]At [68].
Such restriction of the remedy was considered by the Court of Appeal to be inconsistent with the Auckland Unemployed Workers’ Rights Centre case, which concerned not only the execution of a warrant by the police but also its unlawful issue by a Registrar, exercising judicial powers. The Court also accepted that the Crown argument would exclude the judiciary in part from the overall operation and application of the Bill of Rights Act, a result it considered would be contrary to s 3(a) of the Act.[52] And it identified “major practical problems in any event” if judicial breaches were excluded from the remedy, because of overlapping responsibilities between the judiciary and the executive in the administration of justice.[53]
[52]At [78].
[53]At [79].
The Attorney-General appeals with leave to this Court.
The New Zealand Bill of Rights Act 1990
The New Zealand Bill of Rights Act is enacted “to affirm, protect, and promote human rights and fundamental freedoms in New Zealand” and “to affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights”.[54] It applies to “acts done by the legislative, executive, or judicial branches of the Government of New Zealand”, and to persons or bodies performing public functions or powers.[55] Other legislation must be applied by the courts, even if inconsistent with provisions of the Bill of Rights Act (if it cannot be interpreted consistently with the rights and freedoms in application of s 6).[56] But, otherwise, the rights and freedoms in the Bill of Rights Act may be subject only to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.[57] The New Zealand Bill of Rights Act is constitutional legislation[58] which is intended to permeate New Zealand law.[59] For present purposes, it is of importance to stress that acts done in the exercise of the authority of the judicial branch of the government of New Zealand are explicitly subject to the Bill of Rights Act, as equally as acts done in the exercise of the authority of the executive branch.
[54]New Zealand Bill of Rights Act 1990, long title.
[55]Section 3.
[56]Section 4.
[57]Section 5.
[58]See, for example, R v Te Kira [1993] 3 NZLR 257 (CA) at 277 per Thomas J. And see Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 3.
[59]Cooke P noted that “[t]he Bill of Rights Act is intended to be woven into the fabric of New Zealand law”: R v Goodwin [1993] 2 NZLR 153 (CA) at 156.
The New Zealand Bill of Rights Act contains no specific enforcement provisions. Judicial vindication of rights was however foreshadowed by the White Paper that preceded enactment of the Bill of Rights Act. Its proposals for remedy, including by way of judicial review of legislation, were not adopted in the legislation as enacted. But the policy of judicial enforcement, subject only to the strictures provided by ss 4 and 5, remains implicit in the Act in a number of ways: through its confirmation of “rights” (for which the rule of law requires remedy); in its explicit subjection of the actions of the judicial branch of government to the Act (which includes the discharge of its remedial responsibilities);[60] and in the purposes described in the long title, which include both the promotion, as well as the affirmation and protection, of human rights and fundamental freedoms, and affirmation of “New Zealand’s commitment to the International Covenant on Civil and Political Rights” (which requires States party to the Covenant to provide “effective remedies” for breaches of rights[61]). More generally, vindication of right in a society based on the rule of law must ultimately be able to be achieved by claim of right to the courts.
[60]In s 3.
[61]International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), art 2(3)(a).
In early cases under the New Zealand Bill of Rights Act, the Court of Appeal accepted the responsibility of the New Zealand courts to provide effective remedy for breaches of the Act.[62] The damages remedy granted in Baigent[63] was pursuant to this wider responsibility. The appropriateness of judicial remedy, including a remedy in damages, was not questioned by the Law Commission in its report on Baigent’s case. Indeed, while acknowledging that the Bill of Rights Act contains no express remedies clause, the Law Commission pointed out that “failure by the courts to recognise the rights would have made the Act toothless”:[64]
Just as the European Court of Justice has created remedies to give effect to the rights established by the EEC treaty ... so the New Zealand courts have given effect to the Act and to aspects of the International Covenant which the Act affirms.
[62]R v Goodwin [1993] 2 NZLR 153 (CA) at 191 per Richardson J; R v Te Kira [1993] 3 NZLR 257 (CA) at 283 per Thomas J; Baigent at 677 per Cooke P, at 691 per Casey J, at 702–703 per Hardie Boys J, at 707 and 711 per Gault J, and at 718 per McKay J.
[63]And later granted in respect of judicial breach in Upton v Green (No 2) (1996) 3 HRNZ 179 (HC), a decision upheld by the Court of Appeal: Attorney-General v Upton (1998) 5 HRNZ 54 (CA).
[64]Law Commission Crown Liability and Judicial Immunity at 16.
The obligation to provide effective remedy has been acted on by the courts in the many cases in which evidence has been excluded, proceedings have been stayed, or administrative or judicial decisions have been set aside for non-compliance with rights, as well as in the few cases where monetary recompense has been ordered as necessary to provide an effective remedy. It is an approach that is not challenged by the Attorney-General in the present appeal.
The redress of human rights was said by Cooke P in Baigent to be in “a field of its own”.[65] The courts, he thought, would “fail in our duty” to protect and promote human rights and fundamental freedoms in New Zealand if they failed to provide “an effective remedy”, including in appropriate cases a compensation remedy.[66] Although the affirmation of human rights “as part of the fabric of New Zealand law” meant (subject to ss 4 and 5) that “[t]he ordinary range of remedies will be available for their enforcement and protection”, the Act was not properly treated “as if it did no more than preserve the status quo”: it required “development of the law when necessary”.[67] The remedy developed in Baigent, in explicit application by the majority of the Court of Appeal of the approach taken by the Privy Council in Maharaj, was not a form of vicarious liability for tort or other private law wrong. The other Judges in the majority in Baigent, Casey, Hardie Boys and McKay JJ, expressed similar views to Cooke P. All pointed to the fact that Parliament, in enacting s 3, had made it clear that the judicial branch of government was bound to observe the rights and freedoms contained in the Bill of Rights Act.[68] All took the view that the public law remedy of damages was one against the Crown.[69] And all relied explicitly on the reasoning of the Privy Council in Maharaj as applicable to the approach to vindication of rights under the New Zealand Bill of Rights Act.[70]
[65]At 677.
[66]At 676.
[67]Ibid.
[68]At 691 per Casey J, at 702 per Hardie Boys J, and at 718 per McKay J.
[69]At 691–692 per Casey J, at 702 per Hardie Boys J, and at 718 per McKay J.
[70]At 692 per Casey J, at 700 per Hardie Boys J, and at 718 per McKay J.
In this connection, it should be noted that, while it has been common to refer to damages against the State for Bill of Rights breach as “compensation”, effective remedy may require consideration in appropriate cases of whether purely compensatory damages are adequate to vindicate the public right and deter future denials of right.[71] In such public law remedy, the focus is on vindication of human rights.[72] That, as Thomas J pointed out in Dunlea v Attorney-General, may be contrasted with the general “loss-centred approach to damages”.[73] In Attorney‑General of Trinidad and Tobago v Ramanoop, the Privy Council declined to limit public law damages to compensation, citing Thomas J in Dunlea with approval.[74]
[71]As discussed in Vancouver (City) v Ward 2010 SCC 27, [2010] 2 SCR 28 at [28]–[30] and in Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [109].
[72]Baigent at 676 per Cooke P, at 692 per Casey J, at 697 per Hardie Boys J, and at 717 per McKay J. Both Hardie Boys and McKay JJ cite Ashby v White (1703) 2 Ld Raym 938 at 953, 92 ER 126 at 136 (KB) for this proposition.
[73]Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) at [68].
[74]Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328 at [16].
The distinctness of the public law claim also makes it inappropriate to treat it as a backstop to other private law causes of action, available only where there is no other available claim. I agree with Thomas J in Dunlea that, if accepted, such view would “represent a major and retrograde inroad into the principle established in Baigent’s Case”.[75] With him:[76]
I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation.
[75]At [53].
[76]At [57].
A New Zealand report to the United Nations Committee on Human Rights (in carrying out the international obligations under the Covenant the Bill of Rights Act is enacted to fulfil in domestic law) has cited the remedies provided by the courts, including the Baigent damages remedy, as domestic fulfilment of its international obligations.[77] That is not necessarily inconsistent with the argument for the Attorney-General on the appeal. He maintains that it is inappropriate that monetary compensation be available for judicial breach only. The policy reasons he advances for this exception concern the independence of judicial function and the appearance of impartiality, the implications for judicial immunity of Baigent damages for judicial breaches of rights, and the public interest in finality of litigation (which, it is suggested, may be eroded by collateral challenges based on Bill of Rights breaches). Before dealing with these policy reasons in their own terms, it is necessary to refer to the general remedial approach adopted by the courts, which as is later indicated, I consider would be distorted if the arguments for the Attorney-General were accepted.
The authorities
[77]Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Fourth Periodic Report of States Parties due in 1995: New Zealand CCPR/C/NZL/2001/4 (2001) at [12]–[19].
I agree with the view of the Court of Appeal in the present case that the exclusion of public law damages for breaches attributable to judicial act is not consistent with the reasons given in Baigent and Auckland Unemployed Workers’ Rights Centre. While only McKay J explicitly referred to breaches by all branches of government,[78] the other judgments cannot in my view fairly be read as suggesting an exceptional limitation. Nor is such limitation consistent with the adoption by all Judges in the majority of the reasoning in Maharaj, in which judicial conduct was the foundation of the constitutional damages ordered. Lord Diplock, delivering the judgment of the Board, made it clear that the remedy was distinct from vicarious liability for tortious liability of the judge:[79]
The claim for redress … for what has been done by a judge is a claim against the state for what has been done in the exercise of the judicial power of the state. This is not vicarious liability; it is a liability of the state itself. It is not a liability in tort at all; it is a liability in the public law of the state, not of the judge himself …
[78]Baigent at 718.
[79]Maharaj at 399.
I consider that the reasoning adopted by the majority in Baigent applies equally to acts of the judiciary. Attempts to distinguish Baigent according to the ratio of the case are unconvincing and, in any event, arid.
Direct public law damages against the State in respect of judicial breaches of the Bill of Rights Act were treated by the Court of Appeal in Rawlinson v Rice as available as a more straightforward remedy than the claim being pursued by the appellant for breach of statutory duty and misfeasance in public office.[80] The personal claim against the Judge was not struck out but there was an indication by Crown counsel that a settlement with the Crown was open on the direct public law claim.[81] In Upton v Green (No 2), Tompkins J awarded the plaintiff public law damages for breach of natural justice and fair trial rights.[82] The award was upheld on appeal.[83] It is suggested that the force of these decisions is diminished because the Crown in both cases conceded liability lay for public law damages on the basis of Baigent. But all three were reasoned decisions which are entitled to respect. Indeed, the concessions themselves indicate that until recently the view that Baigent damages were available for judicial breaches, as in Maharaj, was not generally doubted.
[80]Rawlinson v Rice [1997] 2 NZLR 651 (CA) at 663 per McKay J, at 664 per Barker J, and at 667 per Tipping J.
[81]Described at 663.
[82]Upton v Green (No 2) (1996) 3 HRNZ 179 (HC).
[83]Attorney-General v Upton (1998) 5 HRNZ 54 (CA).
Such availability seems to have been assumed by Richardson J in Martin v Tauranga District Court.[84] No attempt was made to separate out judicial and non-judicial breach in his reasons, although the case concerned breach of the right to trial without undue delay, in which it is difficult to see that matters of judicial responsibility played no part. In Harvey v Derrick, Cooke P, in referring to the Maharaj claim against the State, remarked that “a mere judicial error in interpretation of the law would not give rise to such an action”,[85] indicating his view that the Maharaj remedy (which did not lie for mere error) was available in respect of judicial breach of rights. I am unable to read this statement as other than an acceptance that Baigent damages lie for judicial breach.[86] That the direct liability recognised in Baigent is available in respect of judicial conduct was assumed by three judges of this Court in Lai v Chamberlains[87] and by a unanimous Court in R v Williams (where, again, trial delay was in issue in circumstances where some shared responsibility between the executive and judicial branches of government was likely).[88] These assumptions are not of course greatly persuasive in themselves, but they indicate that upholding the Court of Appeal in the present appeal does not overthrow expectations. And it seems to confound the view that, if the Court of Appeal judgment is upheld, the system will be vexed with unmeritorious collateral challenges to convictions and judgments. The view taken of Baigent, before recent second thoughts, did not open floodgates.
[84]Martin v Tauranga District Court [1995] 2 NZLR 419 (CA) at 427–428.
[85]Harvey v Derrick [1995] 1 NZLR 314 (CA) at 322.
[86]Compare the view of McGrath and William Young JJ that the case is neutral: at [131]–[135].
[87]Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [66] and [74] per Elias CJ, Gault and Keith JJ.
[88]R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18].
Nor has it been found necessary in other comparable jurisdictions where the point has arisen to except judicial breaches from the remedy of damages available against the State. In Canada the matter appears to have arisen for consideration in one first instance decision only, R v Germain.[89] There, the Judge applied Maharaj, affirming that monetary compensation was available in respect of judicial breach as “part of the armory of remedies that may be just and appropriate when there has been an infringement of a right guaranteed by the Charter”.[90] The remedy of compensation was not, however, sought by the accused in the case.[91]
[89]R v Germain (1984) 53 AR 264 (ABQB).
[90]At [31].
[91]At [32].
The availability of a remedy in damages is also consistent with the refusal of the Supreme Court of Canada to adopt rules for exclusion of public law damages based on the identity of the defendant or the nature of the right in Vancouver (City) v Ward.[92]In that case the Supreme Court rejected a categorical approach. It favoured, rather, assessment of whether such remedy was appropriate in context, taking into account the existence of alternative remedies and “good governance” considerations (such as the distorting impact on administration of awards of damages).[93] I find it difficult to imagine that any such “good governance” considerations (in any event, one factor only in the approach of the Supreme Court of Canada)[94] pull against liability in the case of the judicial obligation to observe the fundamental rights and freedoms contained in the Bill of Rights Act. Although the Canadian Supreme Court has yet to confront the issue of public law damages for judicial breach directly, the rejection of exclusion of remedies according to type of defendant and type of right does not suggest categorical exclusion of damages for judicial breach where they are otherwise appropriate.
[92]Vancouver (City) v Ward 2010 SCC 27, [2010] 2 SCR 28.
[93]At [33].
[94]At [38]–[39].
In the United Kingdom, damages for human rights breach are provided for in the Human Rights Act 1998. The remedy is available for judicial acts not taken in good faith, and for judicial acts in good faith if “to compensate a person to the extent required by Article 5(5) of the Convention”.[95] Although remedy is governed by statute and the European Convention, public law damages for judicial breach have not apparently been considered to be inconsistent with fundamental principle, as is urged by the Attorney-General in the present appeal.
[95]Human Rights Act 1998 (UK), s 9(3). Article 5(5) of the European Convention on Human Rights provides that there is enforceable right of compensation for any victim of an arrest or detention that has contravened that person’s right to liberty and security of person.
Revision seems to have been prompted in New Zealand by the suggestions in Brown and McKean that Maharaj has been effectively overruled by the Privy Council[96] and the suggestion that the Law Commission in its report on Baigent’s case had pointed out that the ratio of Baigent was narrower than had been previously believed.[97] I do not accept that Maharaj has been effectively overruled, and explain why shortly. Nor do I attach the same significance to the Law Commission report. Ultimately, however, neither of these propositions is determinative in the view that the remedy of public law damages (which is accepted to be available in New Zealand law for breaches of the Bill of Rights Act) should not exclude breaches caused by judicial conduct. The reasons of legal policy and principle against such exception being made in my view clearly outweigh the counter-arguments put forward based on judicial function, judicial immunity, and finality in litigation, for reasons I deal with in [48]–[77].
[96]Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [127]–[132], referred to in McKean (HC) at [32].
[97]McKean (HC) at [35].
Maharaj has been directly in issue in three subsequent Privy Council cases and is referred to, without disapproval, in a fourth.[98] In each of the three in which a claim of damages for judicial breach was in issue, the claim for damages was declined on the basis that the legal order had in fact provided remedy through appeal processes.[99] Nothing in the decisions of the Privy Council in those cases throws doubt on the reasoning which permits public law damages for judicial breaches. Indeed, in Hinds v Attorney-General of Barbados, Lord Bingham stressed of the direct public law damages remedy against the State that:[100]
It would be undesirable to stifle or inhibit the grant of constitutional relief in cases where a claim to such relief is established and such relief is unavailable or not readily available through the ordinary avenue of appeal. As it is a living, so must the Constitution be an effective, instrument. But Lord Diplock’s salutary warning remains pertinent: a claim for constitutional relief does not ordinarily offer an alternative means of challenging a conviction or a judicial decision ...
[98]It has been directly in issue in Hinds v Attorney-General of Barbados [2001] UKPC 56, [2002] 1 AC 854; Forbes v Attorney-General of Trinidad and Tobago [2002] UKPC 21; and Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190. It is referred to without disapproval in Attorney-General of Trinidad and Tobago v Ramanoop [2005] UKPC 15, [2006] 1 AC 328.
[99]See Hinds at [19]; Forbes at [18]; and Independent Publishing at [92].
[100]At [24].
In Forbes v Attorney-General of Trinidad and Tobago, Lord Millett applied Lord Diplock’s stricture that the remedy was not available simply for error able to be corrected in the appellate process:[101]
[I]t is only in rare cases where there has been a fundamental subversion of the rule of law that resort to constitutional redress is likely to be appropriate. However the exceptional case is formulated it is clear that the constitutional rights to due process and the protection of the law do not guarantee that the judicial process will be free from error. This is the reason for the appellate process.
[101]At [18].
The third case, Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago was, like Maharaj, a case of wrongful committal for contempt of court.[102] After Maharaj, however, a statutory right of appeal for such cases (lacking in Maharaj, where correction was only eventually obtained after special petition to the Privy Council) had been enacted. Lord Brown expressly accepted that in the Maharaj circumstances, where there was no form of redress provided by the legal system, it was appropriately characterised as unfair. By contrast, in the case of Independent Publishing, release on bail was secured within four days of the committal.[103] In those circumstances, the Privy Council considered that the remedy of damages was not appropriate.[104] Because of the appeal provision, Lord Brown also suggested it was no longer necessary to maintain the original distinctions made in Maharaj between fundamental breaches of natural justice, mere procedural irregularities and errors of law.[105] As indicated at [72] below, the remedial approach adopted in New Zealand law for Bill of Rights breach makes such classifications unnecessary where there are breaches of rights identified in the Act. But I do not read Lord Brown’s remarks as indicating any doubt about the principle established in Maharaj, and applied in Baigent, that direct public law remedy in damages is available when necessary to provide effective remedy for judicial breach.
[102]Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190.
[103]At [88].
[104]At [92]–[94].
[105]At [93].
In none of these three Privy Council cases is the availability of damages for breach of rights which are not able to be adequately corrected within existing process doubted. Indeed, all three cases apply Maharaj.
The fourth Privy Council case, Attorney-General of Trinidad and Tobago v Ramanoop, concerned breaches by the police. There is nothing in the judgment to suggest that it treated Maharaj of doubtful authority. At issue was whether the damages remedy was confined to compensation or could, rather, be used to deter future misconduct and mark the court’s emphatic denunciation of the breaches of rights. In holding that the damages remedy was not confined to compensation, the Privy Council confirmed the importance of the direct claim for damages against the State as a remedy in vindication of rights.[106]
[106]At [18]–[20].
The Law Commission, as I have already indicated, supported the Baigent remedy.[107] It pointed out that Baigent itself was concerned with breaches by the executive branch of government.[108] Although acknowledging that Tompkins J in Upton v Green (No 2) had applied it to judicial breaches, the Law Commission recommended legislation to bar the remedy in public law damages against the State in respect of judicial breaches.[109] That was a recommendation not acted on by Parliament. If accepted, it would have achieved the exception of judicial breach that the Attorney-General seeks to have the Court impose in this case. The Law Commission’s reasons for suggesting this exception, despite its emphasis on equality and rule of law justifications for the general remedy,[110] are the policy reasons of the availability of adequate rights of appeal, the need to achieve finality in litigation, and the undesirability of judges being embroiled in litigation about their own conduct.[111] These reasons of policy are urged upon the Court on behalf of the Attorney-General and are arguments I deal with under the next heading.
[107]Law Commission Crown Liability and Judicial Immunity at 28–29.
[108]At 32.
[109]At 52–54.
[110]At 6.
[111]At 46 and 52.
I make here two immediate comments in relation to the Law Commission report. The present case appears outside those contemplated by the Law Commission where “adequate rights of appeal” provide sufficient remedy.[112] It is the respondent’s claim that he was denied appeal through what Lord Millett might have described as a “fundamental subversion of the rule of law”.[113] On the language of the Privy Council in Taito, it cannot be said on this preliminary hearing that such characterisation will prove extravagant. (Whether the breach has been sufficiently vindicated is a question for trial.) The second point is that the Law Commission did not suggest that judicial immunity provides an existing legal impediment to the direct claim for public law damages; that is why it recommended a legislative bar.
Public law damages and effective vindication
[112]At vii, 46 and 52.
[113]Forbes at [18].
The question of monetary remedy for judicial breach of the New Zealand Bill of Rights Act is one aspect only of the overall remedial response developed by the courts. Thus in Martin Richardson J suggested that the availability of damages following Baigent allowed remedies to be tailored to the circumstances of particular breach.[114] In the case of undue delay, for example, a direction for expedited hearing and an award of damages might be more appropriate remedy than stay in cases where the fairness of any ensuing trial is not affected by the delay. In the case of unreasonable search and seizure the exclusion of evidence (then the prima facie remedy) might be less appropriate than a remedy of damages unless, “weighing all public interest considerations, monetary relief is not adequate to vindicate the right breached”.[115] Since then, the enactment of s 30 of the Evidence Act 2006 may make retention of remedial alternatives to exclusion of evidence important in assessing the proportionality of exclusion, and the balancing required by the section.
[114]Martin at 427–428.
[115]At 427.
“Effective remedy” is remedy tailored to the particular case. Consideration of the full range of responses is appropriate in identifying effective remedy. Exclusion of the possibility of a remedy in damages against the State for judicial breach means that the courts are hampered in response for one type of case. The options that Richardson J was able to contemplate would then be limited in respect of breach by the judicial branch of government. As a result, the courts may be pushed to alternative remedies, such as exclusion of evidence or stay of proceedings, in cases where damages would be the more appropriate vindication of right.
In a number of cases where the infringement of right is in circumstances which also constitute an existing tort or wrong in administrative law, recourse to standard civil processes and remedies (adapted as necessary to vindication of rights) may have provided effective remedy. As already indicated, effective remedy will in some cases be able to be achieved within the legal process in which the breach occurred, as where evidence improperly obtained by the police or obtained under invalid judicial warrant is excluded from admission as evidence. In many cases where there has been a breach of fair trial rights, correction on appeal within the same proceeding will be effective remedy.
These, it should be noted, are themselves public law remedies, not achieved against those individuals who have acted unlawfully but provided in vindication of the obligations of the State and to prevent the courts being co-opted into perfecting breaches of rights, contrary to s 3, as through the admission of evidence obtained in breach.[116] If these remedial options are not however available or are insufficient for effective vindication, the obligation of the courts may be to provide a direct remedy in public law, as Baigent recognised.Although in that case monetary remedy was considered to be the only practicable response, in other cases the direct remedy may take another form, such as a declaration.[117]
[116]See generally Television New Zealand Ltd v Rogers [2007] NZSC 91, [2008] 2 NZLR 277 at [33].
[117]See the Declaratory Judgments Act 1908, s 3. That Act is binding on the Crown: Crown Proceedings Act 1950, sch 1.
The public law damages recognised in Baigent enable the court to provide a remedy in cases where denial of rights has caused harm for which compensation is appropriate or where other remedies available are insufficient to vindicate the right breached in fulfilment of the non-compensatory functions of such damages.[118] The remedy is important in permitting appropriate redress in the context of the particular case.
The consequence of a “carve-out” for judicial breach
[118]Dunlea at [64]–[68]; see also Taunoa at [107]–[108].
Effective vindication of the rights and privileges affirmed in the New Zealand Bill of Rights Act would be seriously deficient if judicial breach of the significant rights to criminal procedure were excluded from the full range of remedies. In many cases, it will be difficult to separate out judicial breach of rights from breaches by other State actors, leading to arbitrary results and perhaps difficult questions of attribution or materiality.[119] So, for example, delay may be partly the result of judicial conduct and partly the result of executive conduct (whether of police or prosecutors, or in the provision of court facilities); unreasonable search and seizure may result both from the granting of search warrants and their execution.[120] While Maharaj is generally viewed as a case concerning judicial breach (in the wrongful committal), it could equally well be seen, as is suggested by Lord Diplock’s references to failure of the legal system[121] and as it was subsequently treated by the Privy Council,[122] as a legislative failure in the provision of appeal rights to enable the system to provide its own correction. Indeed, breach of human rights by officials or others properly within the responsibility of the executive, such as the police, may often be material to judicial outcomes.[123] The public law damages remedy acknowledged to be available in respect of such breaches may properly be claimed unless the claim is an abuse of process.[124] It is necessary to recognise that the distinction between judicial breach and breach by other State actors for the purposes of remedy may be elusive in practice and productive of arbitrary outcomes.[125]
Public law damages are not inconsistent with judicial immunity
[119]As the Court of Appeal noted in Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [79]–[80].
[120]Auckland Unemployed Workers’ Rights Centre can be read as a case of mixed responsibility.
[121]Maharaj at 399.
[122]Independent Publishing at [88].
[123]This is so, even though the police are largely independent from the executive by virtue of s 16 of the Policing Act 2008. (The Police Commissioner, while responsible to the Minister for some functions, must act independently of the Minister in the enforcement of the law and the investigation and prosecution of offences: Policing Act 2008, subs 16(2).)
[124]This was adverted to in Lai v Chamberlains at [66].
[125]For example, according to whether a warrant is issued by a judge or a registrar, or whether breach of fair trial rights is attributed to judicial or prosecutorial misconduct.
Judicial immunity is common law doctrine.[126] Although its existence is now acknowledged in statute,[127] its scope remains a matter of common law.[128] It serves not the private interests of judges but the public interest in protecting their impartiality in judging by removing threats which could undermine it. The immunity is not absolute. Indeed, as Richardson J has noted, absolute immunity would be destructive of the public interest because it would “undermine judicial responsibility”, as well as giving “no weight at all to the public policy goals of tort and public law liability”.[129]
[126]Cases often relied upon as authoritative statements of its scope include Fray v Blackburn (1863) 3 B & S 576, 122 ER 217 (KB) and Sirros v Moore [1975] QB 118 (CA). See the reliance on these cases in the judgment of Henry J in Gazley v Lord Cooke of Thorndon [1999] 2 NZLR 668 (CA) at 679.
[127]Such as in s 119 of the District Courts Act 1947 (which extends to the judges of that Court the immunities possessed by High Court judges).
[128]The case does not therefore engage s 4 of the New Zealand Bill of Rights Act, as Gault J, dissenting in Baigent, considered an important consideration in respect of the statutory police immunity: at 708.
[129]Harvey v Derrick at 326 per Richardson J.
Whatever the bounds of judicial immunity, it is not engaged in the public law liability of the State for breaches of rights. Cooke P emphasised in relation to the direct public law liability recognised in Baigent that “the point of overriding importance” was that it was “not within the purview of any statutory exemption from liability”.[130] If it is not within the purview of any statutory exemption, it is equally not within the purview of any common law exemption.
[130]Auckland Unemployed Workers’ Rights Centre Inc at 724.
It may be that the public interest in judicial immunity outweighs the public interest in effective remedy for breach of rights where the two conflict.[131] But in the present case, there is no conflict. The personal immunity of the judge from suit is not questioned. Rather, the argument for the Attorney-General is that the policies behind the common law’s insistence on personal immunity of the judge for otherwise actionable wrongs also shield the Crown from liability for public law damages, should that remedy otherwise be appropriate vindication for judicial breach of rights. What is being suggested is a new immunity for the State, fashioned by reference to judicial immunity.
[131]Not considered here is the scope of judicial immunity, a common law construct, which was not in issue on appeal. The scope of judicial immunity has not been reconsidered in the light of the New Zealand Bill of Rights Act. As Richardson J suggested in Harvey v Derrick at 325, ss 5 and 6 considerations would have to be taken into account in any post-1990 consideration of the scope of judicial immunity.
Because immunities conflict with other important rule of law values, they are always regarded with suspicion. In Darker v Chief Constable of the West Midlands Police[132] the House of Lords affirmed that the public policy that those who suffer wrongs should have a remedy required existing immunities to be strictly confined. Lord Cooke, in his concurring judgment, described immunity as “in principle inconsistent with the rule of law”:[133]
... but in a few, strictly limited, categories of cases it has to be granted for practical reasons. It is granted grudgingly, the standard formulation of the test for inclusion of a case in any of the categories being Sir Thaddeus McCarthy P’s proposition in Rees v Sinclair [1974] 1 NZLR 180, 187, “The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice ...”. Many other authorities contain language to similar effect.
[132]Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (HL).
[133]At 453.
The immunity for the State here suggested is “in principle inconsistent with the rule of law”. For the reasons that follow, I do not consider that such extension is necessary in the interests of the administration of justice. It is insufficiently connected with the purpose of maintaining impartiality in judging to warrant denial of remedy to those whose rights have been breached. Direct State liability for judicial breach of rights does not undermine the purposes for which personal judicial immunity is imposed. If exemption from liability is unnecessary, then given the adverse impact on rule of law values in the vindication of rights, I do not think it would conform with the Bill of Rights Act for such exemption to be created by act of the judicial branch of government.[134]
[134]The Law Commission recommended that a bar on damages against the State for judicial conduct be created only by means of legislative amendment: see Law Commission Crown Liability and Judicial Immunity at 53.
State liability for public law damages is no more inconsistent with judicial immunity than it was with the statutory immunities of police officers in Baigent.[135]If the argument that direct remedy against the Crown would undermine the public policy in judicial immunity is sound, it applies equally to other immunities, including the immunities of the police officers in issue in Baigent, who are also independent (as are other officials exercising statutory powers). The rejection of the argument in Baigent (on the basis that the immunity was not engaged by a direct, non-vicarious, liability of the Crown) ought equally to apply in the case of direct liability for judicial immunity. The contention for the Attorney-General on this point is inconsistent with the reasoning in Baigent. And its acceptance would entail rejection of the reasoning in Baigent, even if it is not sought formally to overrule that case.
[135]Police Act 1958, s 39. The Police Act provides protection for police doing anything “in obedience” to judicial process; under the provision, no member of the police is responsible for irregularities or want of jurisdiction in the issuing of the process. See also the immunity contained in the Crimes Act 1961, ss 26 and 27.
The only relevance of judicial immunity or police immunity could be if the policies behind them (the bounds of which may themselves require reassessment in the light of the New Zealand Bill of Rights Act) provide sufficient basis for a new exception to the general remedy against the State recognised in Baigent. If effective vindication of the Bill of Rights Act requires the availability of a direct remedy in damages, as I have suggested, any such policy would have to be overwhelming to justify an exception conferring immunity from the general remedial response available to the courts in vindication of breaches of the Bill of Rights Act.
Underlying policy does not justify an extended immunity
The reasons for the immunity of judges from personal liability are not self‑evidently transposable to State liability for the actions of the three branches of government referred to in s 3(a). They are not so regarded in international legal thinking. The United Nations Basic Principles on the Independence of the Judiciary require personal immunity for judges.[136] But they expressly contemplate that disciplinary proceedings, rights of appeal, and claims for “compensation from the State” are not affected by judicial immunity from personal liability:[137]
Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State, in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
[136]Basic Principles on the Independence of the Judiciary (adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Milan, 26 August–6 September 1985, endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985).
[137]At art 16 (emphasis added). See also Responsibility of States for internationally wrongful acts GA Res 56/83, A/Res/56/83 (2001). Article 4 considers that the “conduct of any State organ shall be considered an act of that State under international law”. The International Law Commission’s commentaries on the Articles also note that State responsibility must be considered to be distinct from the responsibility of individuals comprising the State:
... Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law.
See Report of the International Law Commission 53rd sess, A/56/10 (2001) at 35.
For its part, the European Court of Human Rights has drawn a distinction between the personal immunity from suit of judges and “the liability of the State to compensate an individual for blameworthy delay” (attributable to the judiciary).[138] Such distinction compares to the approach taken in Maharaj.
[138]McFarlane v Ireland (2011) 52 EHRR 20 (Grand Chamber, ECHR) at [121].
Nor is such an exception practicable in seeking to immunise from public law liability only breaches attributable to judicial conduct. In effect, the argument for the Attorney-General would seek to preclude questioning of judicial actions except through appeal, judicial review (where available in respect of the decisions of inferior courts),[139] or disciplinary procedure. This, it is said, is necessary to avoid the judges being vexed with litigation in which they might be asked to be witnesses (although s 74(d) of the Evidence Act would prevent their compellability). And it is said to be necessary to prevent judicial determinations, formally intact, being undermined by collateral challenge. It should be noted that while the denial of a Maharaj remedy would prevent a claim of right to compensation from the State, it is not suggested that it would prevent application to the executive branch of government for an ex gratia payment under administrative procedures established by the executive. Such payments, too, entail questioning of judicial conduct.
[139]As in the case of the denial of natural justice by the Visiting Justice in McKean v Attorney‑General [2009] NZCA 553.
The Attorney-General argues that there is additional policy in an exception to State liability based on judicial action. If the State is to be liable for judicial conduct, he suggests the independence and impartiality of the judges may be undermined in two ways: by the perception, if not the reality, that the executive will then have an incentive (in minimising its own risk) to encroach upon judicial function; and by a corresponding reluctance on the part of judges to risk responsibility for public liability. These arguments do not, in my view, pass muster.
First, executive interference with judicial function is constitutionally illegitimate. The prospect of such interference is unthinkable. Such spectre, even if expressed as concerned with appearances rather than reality, should not be conjured up against the fundamental principle that rights must be remedied.[140]
[140]Compare Kemmy v Ireland [2009] IEHC 178, cited with approval by McGrath and William Young JJ at [198].
Secondly, the argument that judges may be deflected from their duty is, as Lord Cooke pointed out in response to a similar claim in respect of the police in Darker,[141] the same argument rejected by Lord Reid in Home Office v Dorset Yacht Co Ltd when made in respect of the liability of public servants.[142] Lord Reid in that case expressed the conviction that “Her Majesty’s servants are made of sterner stuff”.[143] It would be a bad day for the rule of law if the same could not be said about Her Majesty’s judges.
[141]Darker at 452.
[142]Home Office v Dorset Yacht Co Ltd [1970] AC 1004 (HL).
[143]At 1033.
I consider that these arguments of policy for limiting the application of Baigent and extending the immunity do not displace the principle that has “first claim” upon the courts: that wrongs are to be remedied.[144] Observance of that general principle is axiomatic where the wrong in issue is breach of the rights and freedoms contained in the New Zealand Bill of Rights Act. Provision of effective remedy is essential to discharge of the obligations imposed on the courts by s 3(a). In that context there is no occasion to create a new immunity for the State on the basis of the policies behind judicial immunity. They are not directly engaged. And none are sufficient in themselves or as combined to place a remedy in damages beyond the remedial jurisdiction of the courts when rights are breached.
[144]X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (CA) at 663; see also Lai vChamberlains at [35]; and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [69].
I would therefore resist this creeping immunity. It is “in principle inconsistent with the rule of law”.[145] For the reasons given, I do not consider that such extension is necessary in the interests of the administration of justice. Immunity should not be extended beyond protection of individual judicial officers from personal claims.
No inconsistency with New Zealand’s reservation to art 14(6) of the ICCPR
[145]Darker at 453.
Nor is the availability of a Baigent damages remedy against the State inconsistent with New Zealand’s reservation to art 14(6) of the International Covenant on Civil and Political Rights, as has been suggested.[146] Article 14(6) requires a person wrongly convicted to be “compensated according to law”. Such remedy addresses error in result, rather than the fundamental denial of rights looked to by Maharaj or breach not remediable within existing process looked to by Baigent. It seeks to create a domestic entitlement to compensation for wrongful conviction rather than a claim for an effective remedy for Bill of Rights breach otherwise not vindicated. A direct public law claim will not “ordinarily offer an alternative means of challenging a conviction or a judicial decision”, as Lord Bingham recognised in Hinds.[147] The reservation to art 14(6) does not therefore inhibit the public law damages remedy recognised in Baigent.
Collateral challenge and finality of litigation
[146]See McGrath and William Young JJ at [199]–[201] and William Young J in Brown at [136].
[147]Hinds at [24].
The emphasis placed on the need to avoid collateral challenge of judicial determinations, as already indicated, seems to me to be overblown. Objections that proceedings for vindication of rights are “collateral” or contrary to a public interest in the finality of court decisions suggest more rigidity in the legal system than is accurate. Collateral challenge by way of judicial review lies against decisions of inferior courts. Removal of the common law immunity of barristers in New Zealand now permits the questioning of outcomes in determined proceedings unless the suit is abusive.[148] Disciplinary proceedings against judges[149] and administration of the ex gratia compensation payments systemised in New Zealand by procedures established by Cabinet also entail questioning of judicial determinations. But since these are avenues of redress explicitly exempted from the United Nations principles on judicial immunity,[150] it suggests that the policy behind judicial immunity is seen, internationally at least, to be satisfied by the narrower objective of protecting judges from personal liability.
[148]Lai v Chamberlains at [68].
[149]Under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.
[150]Basic Principles on the Independence of the Judiciary, art 16.
A blanket exclusion for breach attributable to judicial action also overreaches because it prevents a claim for public law damages even if there is no collateral challenge to an existing determination. That could arise, for example, in circumstances where a breach of rights is not material to the court decision but still requires remedy. It could occur where appeal has corrected an erroneous determination, but the correction does not constitute in the circumstances effective remedy for the breach of right. That is indeed the position claimed here. Claims for damages for breach of rights may not entail collateral challenge to a subsisting conviction or judgment at all. Where they do, the claim may often, but will not invariably, amount to abuse of process. Where such claim is an abuse of process, it can be directly confronted on the basis set out in Hunter v Chief Constable of the West Midlands Police[151] and applied by this Court in Lai v Chamberlains.[152] Where it is not (perhaps because the claim for damages does not impugn a subsisting conviction), there is no arguable basis upon which to deny an effective remedy. It should be noted that arguments for denial of a remedy in damages in respect of criminal procedural rights are based less on the policies behind judicial immunity than on the view that vindication of rights in the criminal justice system must be limited to the remedies available through the criminal justice processes. I consider it inconsistent with authority on the availability of damages for breach of rights (as explained at [33]–[47]). And I consider there is no occasion to impose further restriction than is inherent in the remedy itself.[153] It would be to treat those tried for criminal offences as not entitled to vindication of rights on the same basis as others.
Maharaj remains good law
[151]Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL).
[152]Lai v Chamberlains at [64]–[72].
[153]Whether the remedy contemplated in Maharaj is too restrictive in the application of the New Zealand Bill of Rights Act is not something we are called upon to consider.
In Maharaj, Lord Diplock limited the public law damages claim to denial of fundamental constitutional rights of natural justice, not able to be effectively remedied through appeal.[154] The development of remedies through New Zealand case law for Bill of Rights Act breaches has preferred to tailor remedies in contextual assessment of what is effective, rather than through adoption of a more categorical approach according to classification of the failure of process.[155] There may be no difference in application. Breach of natural justice or the minimum standards of criminal procedure provided for in the Bill of Rights Act is not likely to justify an award of public law damages against the State unless it fails to be adequately remedied by correction within the legal processes in which it occurs, as through appeal. Such error is properly characterised as fundamental denial or failure of the legal system to protect human rights. But it would be unwise to suggest that public law damages could never be appropriate short of such failure. I would prefer to disclaim such omniscience and leave the circumstances in which damages may properly be awarded for future cases, in which they can be assessed against the discipline of facts. Line-drawing may be difficult in some cases, a point made by Lord Hailsham, dissenting in Maharaj. (He allowed, however, that the distinction between fundamental denial and error was valid “as a logical concept”.)[156] On this preliminary application based on the denial of rights of appeal through the ex parte process (necessitating correction following similar petition to the Privy Council as in Maharaj), I do not find it difficult to determine that the claim to damages is well arguable.
[154]Maharaj at 399.
[155]See, for example, Martin at 427–428 per Richardson J.
[156]At 410.
Lord Hailsham dissented in Maharaj on the basis of the meaning of the provision for redress in the Constitution of Trinidad and Tobago (which he considered was a procedural provision under which only existing remedies could be obtained).[157] It is not necessary to consider the basis of the dissent for the purposes of the present appeal because the provisions and purpose of the New Zealand Bill of Rights Act were clearly a departure intended to be transformative of New Zealand law. For the reasons adopted in Baigent and as is conceded (except in relation to judicial breaches), it permits effective remedy to be provided by public law damages against the State.
[157]At 406–409.
Lord Hailsham did however go on to point out some “inconveniences” which would follow if the section in issue had conferred a right of damages “in circumstances like the present”.[158] Two are matters of policy also urged upon the Court by the Attorney-General as here supporting exclusion of the Baigent remedy: the difficulty of drawing the line between “mere judicial error and a deprivation of due process as in the instant appeal” (only the second providing a remedy in damages);[159] and the unfairness of such different treatment, given that the consequences for the individuals might be equally grave.[160]
[158]At 409.
[159]At 409–410.
[160]At 410.
Three points should be made immediately about these inter-related criticisms. In the first place, Lord Hailsham made it clear that, had he been of the view that the section conferred a right of claim against the State, these “inconveniences” could not deter allowing it.[161] As the Baigent remedy against the State is accepted to be available in New Zealand, such policy reasons in the present case would have to justify not a new remedy, but an exception to an established one. For the reasons given at [48]–[71] I do not consider they do so. Secondly, the contextual assessment of effective remedy adopted in New Zealand cases, already referred to,[162] is an approach which permits some correspondence to be maintained, if appropriate, between correction of error and remedy of fundamental rights and freedoms. That goes some distance to meet Lord Hailsham’s concern about inequality of outcome as between those who are affected by “mere judicial error” and those affected by breach of fundamental rights. To the extent that effective remedy reflects the “extra dimension” that fundamental rights have been breached, however, difference in outcome is entirely proper.[163]
[161]At 409.
[162]Above at [48]–[49].
[163]As Thomas J rightly emphasised in Dunlea at [67], approved and followed on this point by the Privy Council in Ramanoop at [16].
In many cases of judicial breach of rights, effective remedy will be obtained through the same processes as are available to correct error.[164] Unexceptional delay may not give rise to a remedy in damages. Such unexceptional delay may be regarded as one of the prices of citizenship:[165] as Lord Diplock made clear in Maharaj, infallibility of process is not to be expected, but rather a system that complies with rights.[166] In some cases, particularly those where denial of right is exacerbated by delay in correction, formal correction may not be adequate to vindicate the right. In such cases further remedy by way of damages against the State cannot be foreclosed if effective remedy is to be obtained.
Public law damages are available for judicial breach of the Bill of Rights Act
[164]Harvey v Derrick at 322 per Cooke P, citing Chokolingo v Attorney-General of Trinidad and Tobago[1981] 1 WLR 106 (PC).
[165]Arthur JS Hall & Co v Simons [2002] 1 AC 615 (HL) at 747–748 per Lord Hobhouse.
[166]Maharaj at 399.
The Crown also referred to other remedies for breach of rights identified in the Law Commission’s report:[282]
Judicial immunity must be seen in context. There is a range of remedies available to those aggrieved, which reinforces the responsibility and accountability of judges. They include:
·rejection of evidence (eg, evidence obtained under an unlawful warrant) or stay of proceedings (eg, for delay);
·appeal against, review of, or rehearing of, decisions;
·civil proceedings in respect of actions of judicial officers not taken in the exercise of their judicial functions;
·criminal prosecution in respect of the corrupt exercise of judicial functions; and
·removal processes for serious judicial misbehaviour or incapacity.
[282]At [140].
Since the Law Commission reported there have been two further developments in remedial protection. The most significant systemically is the establishment of the Supreme Court of New Zealand and a right of appeal with leave to that Court on the grounds that it is necessary in the interests of justice to hear and determine a proposed appeal.[283] This provides accessibility to appellate review of the Court of Appeal that was not available at the time of the respondent’s first appeal. There is accordingly now a much greater likelihood that judicial error in the Court of Appeal will be more speedily corrected on appeal. Secondly, the enactment of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 has created a regime for investigating complaints against judges and addressing them according to the Commissioner’s view of their seriousness.
[283]Supreme Court 2003, s 13.
In response, Mr Harrison emphasises that the decided cases make plain that, at times, including he says this case, remedies are only belatedly provided and do not always fully address the harm suffered.
The way this appeal has been argued before us precludes us from considering the adequacy of relief obtained by the respondent. But it is fair to point out that the decision of the Court of Appeal in R v Smith[284] took corrective steps. As a result of them, the respondent obtained a remedy through the rehearing of his appeal and early release pending that rehearing. Eventually, for extraneous reasons, the charges were dropped.
[284]R v Smith [2003] 3 NZLR 617 (CA).
In Baigent, Cooke P and Hardie Boys J emphasised that the obligation that s 3(a) of the Bill of Rights Act imposed on the judiciary was to give an effective remedy to those whose rights were infringed.[285] That was not so in the case of Mrs Baigent where there was no question of exclusion of evidence and a declaration would be “toothless”.[286] But in the present case, there are extensive remedies in the judicial process, including, at the present time, remedies by way of appellate review of the judgments of the Court of Appeal. This is not to say that such remedies will invariably be effective. There can be situations where wrongly convicted persons may have inadequate remedies because of high public policy considerations.[287] But, in deciding whether the Baigent cause of action should be extended to judicial breaches of rights, the high degree of general effectiveness of remedies in the justice system is highly relevant. Also relevant is the possibility that the effectiveness of existing remedies in the appellate process may be reduced if the rules of trial fairness must also be used to determine entitlements to compensation. There could be changes in judicial practice that disadvantage criminal appellants.[288]
[285]See [120] and [121] above.
[286]At 676.
[287]As McMahon J pointed out in Kemmy v Ireland [2009] IEHC 178.
[288]As pointed out by William Young J in Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [142](b).
In considering whether the Bill of Rights Act contemplates government liability for judicial breaches we must also refer to art 14(6) of the International Covenant:
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.
New Zealand’s reservation to this provision reads:
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.
The government has set up a compensation system to deal with exceptional cases. Under Cabinet guidelines, compensation is paid in certain cases where a person has served all or part of a sentence of imprisonment before having the conviction quashed on appeal, without order for retrial, or having received a pardon.[289] Innocence must be demonstrated on the balance of probabilities. Decisions are made on the advice of a Queen’s Counsel instructed by the Minister of Justice for the purpose.
[289]Under s 407 of the Crimes Act 1961.
As the Law Commission has pointed out, it is fundamental to the rule of law that determinations of rights are made by the judiciary, not the executive.[290] The ex gratia scheme of compensation by government decision for those wrongfully convicted accordingly does not fill gaps left in the criminal justice system by the limits of available remedies. That area is, however, addressed by the government’s reservation to art 14(6). While it may be said that the provision is concerned with compensation for wrongful convictions rather than with effective remedies for breaches of rights,[291] there is clearly significant overlap between the two concepts. Importantly, art 14(6) also covers the position of those whose convictions have been reversed.The reservation confines the scope of the international obligation and limits the extent to which that provision in the Covenant can clarify the scope of the public law action under the Bill of Rights Act.
[290]At [184].
[291]As the Chief Justice points out at [69].
Furthermore, as Professor Harris has also observed, when it is available:[292]
The ex gratia payment may also facilitate judicial accountability. Such a payment will be likely to weigh heavily with the responsible judge even though the payment is directly by the Crown. The payment is likely to come to the attention of the public through the media exposure that will be associated with the making of the ex gratia payment.
Conclusion
[292]Harris at 511.
In Baigent, the majority held that it was implicit from the Bill of Rights Act’s purpose of affirmation and promotion of rights and freedoms that New Zealand courts would develop the remedies for breach of rights to the extent necessary. The courts were bound to give effective remedies for breaches and, in the context of Baigent, that required compensation.
Judicial immunity is now conferred by a combination of the common law and statute law. For the reasons we have outlined, we hold that the public policy reasons which support personal judicial immunity also justify confining the scope of Crown liability for governmental breaches of the Bill of Rights Act to actions of the executive branch. Such liability should not be extended to cover breaches resulting from the actions of the judicial branch. This does not, of course, mean that judicial immunity itself is being extended. Rather it is a recognition that the public law cause of action against the Crown, held in Baigent to be implicit in the Bill of Rights Act, would not appropriately be extended to cover the breaches of the judicial branch. As discussed, the desirability of finality in litigation and the importance of judicial independence and public confidence in that independence are here of particular importance. Relevant also is the extensive protection against judicial breach afforded by the justice system and in particular the current appellate process.
Together these factors justify in the public interest a different approach from the public law cause of action recognised in Baigent in relation to executive government breaches of rights. We would add that it is implicit that when the cause of action applies, as in Baigent, and monetary compensation is an available remedy, the Crown is liable. We are not persuaded by the Solicitor-General’s argument that there is no concept of the state in New Zealand domestic law. However, having examined the contention that Baigent damages should apply to judicial breaches, we are satisfied that step is unnecessary. It would be destructive of the administration of justice in New Zealand and ultimately judicial protection of human rights in our justice system.
But the main reason why we reject the extension of the Baigent cause of action is because we consider it is unnecessary under the New Zealand court structure to provide financial remedies for breaches of the Bill of Rights Act by the judicial branch of government. The particular circumstances of Mr Chapman’s claim, which of course arose under the former regime, do not persuade us that his case warrants a different approach.
The position of the Registrar
When the respondent first appealed against his conviction to the Court of Appeal, he applied for legal aid. That application was refused by the Registrar of that Court in the exercise of his statutory powers. The respondent sought a review and the Registrar’s decision was confirmed. As indicated, the appeal was then dismissed without hearing.[293]
[293]See [98] above.
The respondent’s pleading attributes responsibility for the way the appeal was dealt with to the Registrar as well as the Judges involved and also says the Registrar had been made aware of the defects in the ex parte system for dealing with appeals. This raises the question of whether, and if so to what extent, the Registrar, who is a public servant, is protected. The Court of Appeal did not need to address this point and we received only limited argument on it or the position of other officers or employees of the executive branch referred to in the pleadings. To the extent that the Registrar’s actions were superseded by decisions of judges, or give effect to what they have decided, there can plainly be no right to Bill of Rights Act compensation. This kind of distinction is difficult to make but it calls for an exercise of judgment commonly undertaken by the courts.In case this aspect of the case requires further consideration, we refer the proceeding back to the High Court.
Disposition
The Court of Appeal held that, as the questions on appeal were predicated on judicial breaches of the Bill of Rights Act, it should answer them solely on that basis.[294] We take the same approach. In the terms of question (a), we hold that the Court does not have jurisdiction to hear and determine the respondent’s claim for public law compensation, for alleged breaches by the judiciary of ss 25 and 27 of the Bill of Rights Act, occurring in the course of determining his criminal legal aid application and his appeal against conviction. Question (a) is answered accordingly and in consequence questions (b), (c) and (d) do not require an answer.
[294]Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [5]–[7].
The result is that the Crown’s appeal is allowed and the matter remitted to the High Court. There will be no order for costs.
GAULT J
Again I am not persuaded of the need to set aside or displace long-established principles of our law by invoking the New Zealand Bill of Rights Act 1990. I have previously set out in my dissenting judgment in Simpson v Attorney-General [Baigent’s case][295] my views on the status to be accorded the Bill of Rights Act in our legal framework. At the level of this Court, I need not depart from them.
[295]Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).
In any event, I do not consider that the judgments of the majority in Baigent’s case decided that breaches of rights by those acting on behalf of the judicial branch of government can give rise to the direct public law action against the Crown. In considering whether such a cause of action should lie, there must be taken into account what is necessary for the effective exercise of the judicial function, in particular maintenance of judicial independence.
I consider that the independence of the judiciary and its concomitant principle of judicial immunity are fundamental elements of our constitutional structure. They are not to be interpreted away by importing a different context. The immunity with which this case is concerned is, in any event, of a different order of importance from that in Baigent’s case.
On these matters, and whether the Baigent cause of action should apply in respect of breaches of rights by judges, I am content to express agreement with the reasons and decision in the joint judgment of McGrath and William Young JJ.
The attempt to circumvent the immunity by designating the Attorney-General as defendant does not change the true nature of the claim, nor would it (if allowed) make the proceeding any less a claim in respect of acts in the discharge of judicial duties.
ANDERSON J
I agree with the Chief Justice’s conclusion that Mr Chapman’s claim is within the scope of the direct public law liability of the State, which I prefer to refer to as the Crown. I am generally in agreement with the Chief Justice’s reasons but there are some matters I wish specifically to comment upon.
First, I place considerable emphasis upon the following reservations expressed by the Judicial Committee of the Privy Council in Maharaj v Attorney‑General of Trinidad and Tobago (No 2): [296]
[N]o human right or fundamental freedom … is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair.
[296]Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC) at 399.
Their Lordships indicated that only procedural error, amounting to a failure to observe one of the fundamental rules of natural justice, could constitute a relevant infringement of rights. It is, I think, implicit in their Lordships’ reasons that even such an error would not found liability if it were one capable of correction by an appellate court. The Judicial Committee also indicated that an error giving rise to public law liability would be a rare event.[297] I believe that will be and should be the case in New Zealand, with the establishment of the Supreme Court and the greatly improved access to justice that entails. Further, the administration of legal aid at appellate levels has been much improved since the time when Mr Chapman first tried to appeal to the Court of Appeal.
[297]Ibid.
Mr Chapman’s claim is based on breaches of fundamental rules of natural justice which were not effectively capable of correction by a higher Court, the Judicial Committee of the Privy Council, because he was incarcerated, without legal learning and unfunded for legal representation.
I am not troubled by concerns about collateral challenges to court decisions or rulings. As the reasons in Maharaj show, Crown liability for judicial acts is narrow in scope and will be rare in occurrence. Even though a person may have served a period of imprisonment before impugned judicial decisions or verdicts were corrected on appeal, that will not import Crown liability if such person obtained, or reasonably could have invoked, the benefit of the appeal rights affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990. Once the constrained scope for public law liability, prescribed by the Judicial Committee in Maharaj, is understood, the likelihood of collateral challenge is negligible. The courts, in applying the Judicature Amendment Act 1972 and considering the prerogative writs, have contained abusive collateral challenges. In my view there is a greater risk of such abuse in consequence of the abolition of barristerial immunity[298] than by recognising Crown liability in the extraordinary circumstances envisaged by the Judicial Committee in Maharaj.
[298]See Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.
It is open to Mr Chapman to claim that he did not get the benefit of s 25 because, although he eventually had his conviction properly reviewed on appeal, his right to it was unduly delayed. In my view it is unquestionable that, by virtue of s 25(a) and (b), the appeal right must be exercisable without undue delay. That is not to say, however, that in the present case the period of delay ought properly to be measured from the date the Court of Appeal dismissed Mr Chapman’s appeal. It may be necessary to identify a later date as the commencement of undue delay.
The claim invokes ss 25 and s 27 of the New Zealand Bill of Rights Act but I very much doubt whether s 27 is directed at breaches of natural justice in respect of criminal process. That is dealt with in s 25(a), it being inconceivable that the right to a fair and public hearing by an independent and impartial court would not imply the necessity for natural justice. However Mr Chapman’s claim rolls up the whole appeal process, including the conduct of the Registrar of the Court of Appeal, and it is, no doubt, prudent to call both sections in aid in this case.
I turn now to the issue as to whether recognising Crown liability for judicial acts of the nature and effect complained of by Mr Chapman might, or might seem to, derogate from judicial independence. If there were any such risk I would not countenance Crown liability. The immunity of judges from being sued is one of the most important ways in which judicial independence is protected. A judicial system that is institutionally independent and a judiciary whose members are individually independent are fundamental to the rule of law and the welfare of a nation and its people.
It is the solemn and ineluctable duty of the judicial and the executive branches of government, often exemplified, to protect judicial independence. The proposition that judicial independence might be or might seem to be compromised, if in certain extraordinary circumstances the Crown might be held liable for judicial acts, rests on assumptions of potential or seeming timidity on the part of judges and constitutional delinquency on the part of the executive. The timidity is apprehended, not because judges could be personally liable, which they cannot be, but because it might be thought that a judge could possibly be influenced in making a decision by a wish not to upset the government or out of anxiety for his or her reputation. Having for more than 40 years seen judges in action and having been a judge for more than 24 years, I have no such apprehension. The best way of maintaining confidence in the judiciary is for it to emphasise the rights affirmed by the Bill of Rights Act. As to possible delinquency on the part of the executive, I take the view that the more the rule of law and the rights affirmed by the Bill of Rights Act are proclaimed, protected and vindicated, the lesser the risk of unconstitutional conduct by any branch of government.
I would dismiss the appeal.
Solicitors:
Crown Law Office, Wellington for Appellant
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