Attorney-General v Chapman

[2009] NZCA 552

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PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/2008 [2009] NZCA 552

BETWEEN  THE ATTORNEY-GENERAL OF NEW ZEALAND

Applicant

ANDMERVYN CHAPMAN Respondent

Hearing:         19 May 2009

Court:            Glazebrook, Chambers and O'Regan JJ

Counsel:         D B Collins QC, C C Inglis and C A Griffin for Applicant

R E Harrison QC, A J McKenzie and K H Cook for Respondent

Judgment:      25 November 2009 at 4.00 pm

JUDGMENT OF THE COURT

A The questions are answered in the manner set out at [109].

BCosts for a complex appeal on a Band B basis plus usual disbursements are awarded to the respondent.  We certify for three counsel.

REASONS OF THE COURT

(Given by Glazebrook J)

THE ATTORNEY-GENERAL OF NEW ZEALAND V MERVYN CHAPMAN CA CA245/2008 [25 November

2009]

Table of Contents

Para No

Introduction  [1] Is Bill of Rights compensation an available remedy?  [9] Crown submissions  [9]

Mr Chapman’s submissions  [20] Issues  [24] Baigent’s Case and Auckland Unemployed  [26] Subsequent case law in this Court  [48] Supreme Court cases  [55] Law Commission response  [58] Is Baigent’s Case limited to acts by the executive?  [68] Has Maharaj been overruled?  [81] Is the action an inappropriate collateral challenge to

criminal proceedings?  [90] Is the Attorney-General the proper defendant?  [92] Submissions  [92] Our assessment  [94]

Does the Attorney-General have the benefit of judicial

immunities?  [98]

Submissions  [98]

Our assessment  [100] Is Bill of Rights compensation an appropriate remedy?  [102] Submissions  [102] Our assessment  [105] Conclusion and costs  [109]

Introduction

[1]      On 18 May 2000, Mr Chapman (then called Mr Finlayson) was sentenced to six years imprisonment for a number of sexual offences against a nine year old boy. On 14 June 2000, he filed a notice of appeal against his conviction.  Legal aid was declined and, on 19 October 2000, the appeal was dismissed on the papers in accordance with the ex parte appeal process in operation at the time: R v Finlayson CA186/00 19 October 2000 at [2].

[2]      In R v Taito [2003] 3 NZLR 577, the Privy Council held that the manner of dealing with legal aid applications and the ex parte appeal process, which existed at the time of Mr Chapman’s original appeal, were unlawful and in breach of ss 25(a),

25(h)  and  27(1)  of  the  New  Zealand  Bill  of  Rights  Act  1990  (Bill  of  Rights). Mr Chapman was not one of the Taito appellants but he was granted a new appeal

following R v Smith [2002] 20 CRNZ 124 (CA).  In Smith, this Court held that it had inherent power to set aside determinations of appeals, where there were serious errors in breach of natural justice of the kind identified in Taito.

[3]      Mr Chapman received legal aid for the hearing of his new appeal.  The appeal was allowed on the ground that the trial Judge did not take steps to balance the replaying of the complainant’s police video interview to the jury during their deliberations:  R v Finlayson CA228/03 27 November 2003.  This had not been a ground of Mr Chapman’s original appeal.  However, Dr Collins QC, on behalf of the Attorney-General, accepted that the issue had been dealt with by this Court in R v S CA215/00 28 August 2000, a case decided before Mr Chapman’s first appeal was determined.

[4]      The Court ordered a retrial, which was scheduled to commence on 19 July

2004.  On 17 March 2004, Mr Chapman applied for a discharge pursuant to s 347 of the Crimes Act 1961.  This was opposed by the Crown but it was later discovered that the videotape of the complainant’s police interview had been lost.   The complainant, who was 16 years old by that time, did not want to go through another trial  and  give  evidence  in  person.    On  15 July  2004,  the  Crown  withdrew  its opposition to the s 347 application and Mr Chapman, who had been on bail since the day before his second appeal was heard, was discharged by the District Court.

[5]      Mr Chapman now sues the Attorney-General under ss 25 and 27 of the Bill of Rights for $900,000 compensation for the alleged breaches of his fair trial and natural justice rights.  These arose as a result of alleged breaches committed by the Deputy Registrar and the judges of this Court who were involved in determining his original ex parte appeal against conviction and the related criminal legal aid application. Dr Harrison QC, for Mr Chapman, advanced an argument that the fundamental systemic failure of criminal justice represented by the ex parte appeal process  was  not  limited  to  individual  members  of  the  judiciary  but  that  the legislature and the executive were also responsible.   We will not be expressing a view on this argument.  As the questions for appeal are predicated on judicial breach of the Bill of Rights, we will be answering the questions below on the basis of judicial breach only.

[6]      Four  preliminary questions  of  law  have  been  removed  to  this  Court  for determination prior to the substantive hearing of the  compensation proceedings: Chapman v Attorney-General HC CHCH CIV-2006-409-1409 19 March 2008.  The application for removal was on the basis that:

(a)The questions involved considerations that had been the subject of extensive comment by this Court;

(b)       The High Court would be bound by Attorney-General v Upton (1998)

5 HRNZ 54 (CA), where an award of compensation for judicial breaches of the Bill of Rights had been upheld;

(c)      There was a prospect the questions could be heard in conjunction with another appeal involving similar issues.   That in fact did occur, although the other appeal required a further half day of hearing which was not able to be scheduled until August 2009.  The judgment in the other appeal is, however, being released at the same time as this judgment:  McKean v Attorney-General [2009] NZCA 553.

[7]      The four preliminary questions (slightly reworded) are:

(a)      Does the Court have jurisdiction to hear and determine a claim for public law compensation for alleged breaches of ss 25 and 27 of the Bill of Rights occurring in the course of determining a criminal legal aid application and an appeal against conviction where a plaintiff’s conviction has subsequently been quashed on appeal and a retrial ordered?

(b)If  the  answer  to  (a)  is  “yes”,  is  public  law  compensation  an appropriate remedy in such proceedings?

(c)      If the answer to (a) and (b) is “yes”, is the Attorney-General the proper defendant in such proceedings where the alleged breaches of the Bill of Rights were committed by a Registrar and judges of this

Court when determining a criminal legal aid application and an appeal against conviction?

(d)If the answer to (c) is “yes”, is the Attorney-General entitled to the benefit of the same immunities as the persons who committed the alleged breaches?

[8]      We discuss the questions under the following headings (taking the question at

[7](b) last):

(a)       Is Bill of Rights compensation an available remedy? (b)        Is the Attorney-General the proper defendant?

(c)       Does the Attorney-General have the benefit of judicial immunities? (d)        Is Bill of Rights compensation an appropriate remedy?

Is Bill of Rights compensation an available remedy?

Crown submissions

[9]      Dr Collins  submits  that,  in  Mr Chapman’s  case,  the  legislation  in  New Zealand in force at the time of Mr Chapman’s first appeal provided for an effective right of appeal.  The ex parte appeals processes, including the process for dealing with legal aid, were designed solely by the then judges of this Court in contravention of the legislation then in force.  In Dr Collins’ submission, the responsibility for the errors  in  dealing  with  Mr Chapman’s  first  appeal  thus  rested  solely  with  the judiciary.

[10]     Dr Collins submits that the proper remedy for judicial error in the criminal process is judicial correction within the criminal process itself.   There can be no further  review  by  way  of  civil  proceedings  for  compensation.    In  Dr Collins’

submission, the special public policy considerations behind this approach outweigh any further relief being available, even in egregious cases.

[11]     In   Dr Collins’   submission,   the   cases   of   Simpson   v   Attorney-General (Baigent’s Case) [1994] 3 NZLR 667 (CA) and Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 (CA) were both cases where the Attorney-General was sued because of Bill of Rights breaches by the police, part of the executive branch of government.

[12]     Dr Collins submits that the statement of claim in Auckland Unemployed was a  claim  that  focused  upon  police  conduct,  rather  than  judicial  conduct.     In Dr Collins’ submission, the judgment does not stand for the proposition that the Attorney-General can be sued for Bill of Rights damages where the acts or omissions complained of are those of members of the judiciary.

[13]     In  Dr  Collins’  submission,  there  are  two  competing possible  ratios  from

Baigent’s Case:

(a)      That the Crown is the “total guarantor” of Bill of Rights rights and as such is directly liable for all breaches of the Bill of Rights committed by any person or body to which s 3 of the Bill of Rights applies (the wider ratio).

(b)Alternatively, the Crown is directly liable under s 3(a) of the Bill of Rights for breaches committed by, or at least with some involvement of, a member, servant or agent of the executive (the narrow ratio).

[14]     It is submitted by Dr Collins that the proper ratio of Baigent’s Case is the narrow ratio, as held by Gendall J in Lory v Attorney-General [2007] NZAR 361 at [26] (HC) and by Fogarty J in McKean v Attorney-General [2007] 3 NZLR 819 at [35] (HC). The appeal from the latter decision was heard at the same time as this application: see at [6](c) above.

[15]     It is submitted that, with the possible exception of McKay J, all the other majority judges in Baigent’s Case spoke only of the Crown’s liability for executive acts.  It is submitted further that this Court’s decision in Attorney-General v Upton (upholding Tompkins J’s decision in Upton v Green (No 2) (1996) 3 HRNZ 179 (HC)) is not authority for the proposition that Bill of Rights compensation is available for judicial breaches or, if it is, that it should be overruled.

[16]     It is also submitted that it is inappropriate for Mr Chapman to rely on the decision  of  the  Privy  Council  in  Maharaj  v  Attorney-General  of  Trinidad  and Tobago (No 2) [1979] AC 385. Dr Collins submits that, as William Young J noted in Brown v Attorney-General [2005] 2 NZLR 405 at [127] – [132] (CA), the later Privy Council cases of Hinds v Attorney-General of Barbados [2002] 1 AC 854, Forbes v Attorney-General of Trinidad and Tobago [2002] UKPC 21 and, in particular, Independent Publishing Co Ltd v Attorney-General of Trinidad and Tobago [2005] 1 AC 190 have effectively overrruled Maharaj as authority for any general proposition that sufficiently serious errors of due process will resound in damages.

[17]     In Dr Collins’ submission, Maharaj is now only authority for the proposition that the state can be liable for not providing an overall legal system that is fair, as distinct from infallible.  In the context of Maharaj, the state was liable for failing to provide a legal system with a right of appeal against a finding of contempt and for failing to provide the right to apply for bail.

[18]     Dr  Collins’  next  submission  is  that  the  errors  in  Mr Chapman’s  original appeal were remedied through the relief that flowed from Mr Chapman’s second appeal.    In  Dr Collins’  submission,  as  a  matter  of  policy,  there  should  be  no collateral challenge to criminal processes:   Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL). Dr Collins refers in this regard to the public policy considerations outlined by William Young J in his separate concurring judgment in Brown.  William Young J said:

[140]    I concede the possibility of circumstances in which the unfairness of a trial might seem to call out for monetary relief by way of vindication or compensation but which might not be within any established principle of law warranting an award of damages (for example, for malicious prosecution).

Such circumstances are likely to be rare and I do not see the possibility of their occurrence as a reason for not grasping the nettle now. A decision whether damages should be awarded for breach of fair trial rights is best made on the basis of considerations of general application rather than on the possibility of an extreme case arising (for which of course there is always the possible backstop of an ex gratia payment). And, of course, continuing uncertainty will encourage more litigation of this sort (with associated expense and distraction for all concerned).

[141]    I would be very sorry to see the Courts assert a jurisdiction to award compensation in “exceptional” or “egregious” cases involving breach of fair trial rights. The not entirely happy experience of the Courts in this country with claims for exemplary damages suggests that the costs to litigants and the community of such a discretionary head of jurisdiction would be grossly disproportionate to the value of the few, if any, awards likely to be made and to any other public benefits likely to be derived from such litigation.

[142]    In   my   view,   the   New   Zealand   Courts   ought   not   to   award compensation as a remedy for unfair trial process but rather should require such complaints to be raised with either the trial Judge or on appeal. I say this for the general reasons which I have already given and for the following somewhat more particular reasons:

(a)The rules as to trial fairness have been developed for the purpose of determining whether appeals should be allowed and not for determining entitlements to compensation. They are therefore not likely to be well suited for application in a compensation context.

(b)    The purposes for which rules are used necessarily have an impact on their content. If the rules as to trial fairness are required to serve the dual function of determining whether criminal appeals ought to be allowed and entitlements to compensation, there are likely to be consequential changes in practice to the disadvantage of criminal appellants. It is likely to become harder for appellants to persuade appellate Courts that there was unfairness.

(c)In 1990, the legislature did not intend the enactment of the New Zealand Bill of Rights Act to provide for anything like an entitlement to compensation for those subjected to unfair trial process. For the Courts to recognise claims to compensation in relation to unfair trial process would create a fiscal burden on the taxpayer which Parliament can hardly be seen to have authorised.

(d)    This is not to deny efficacy to the New Zealand Bill of Rights Act. At the risk of being thought to have adopted too simplistic an approach, I think that the “natural” remedy for breach of fair trial rights is to be found in the jurisdiction of trial and appellate Courts rather than by way of damages. This approach is, in effect, the correlative of the Courts’ willingness to exclude evidence obtained in breach of the New Zealand Bill of Rights Act rather than to compensate defendants with money payments.

(e)As pointed out by Lord Hailsham in Maharaj, it is difficult to see why a person who has been convicted following an unfair trial is any more deserving a claimant for compensation than another

person convicted following a trial which miscarried for reasons other than State unfairness.

(f)This approach is consistent with the most recent Privy Council jurisprudence.

[19]     Dr Collins points out that William Young J was unequivocal that allegations of breach of fair trial rights are to be raised with either the trial Judge or on appeal and are to be dealt with in those fora alone.   Dr Collins accepts that the majority judges in Brown did not express a view “as to when (if ever)” compensation might be available for breach of fair trial rights, as it was not necessary to do so to dispose of the appeal. Nevertheless, they acknowledged the strength of the views expressed by William Young J: at [100] – [101].

Mr Chapman’s submissions

[20]     Dr Harrison submits that Baigent’s Case and Auckland Unemployed are still good law and that they provide a general remedy for breaches of the Bill of Rights, including those by the judiciary.  He points out Bill of Rights compensation survived Law Commission scrutiny in 1997: Crown Liability and Judicial Immunity: A Response to Baigent’s Case and Harvey v Derrick (NZLC R37 1997).  That scrutiny included a recommendation that legislation be enacted excluding judicial Bill of Rights breaches from the scope of the Bill of Rights compensation remedy (which suggests that the Law Commission considered that Baigent’s Case had the wider ratio  set  out  at  [13](a)  above).    This  recommendation  was  not  followed.    In Dr Harrison’s  submission,  the  Crown  also  had  the  opportunity to  challenge  the existence of the Bill of Rights compensation remedy at Supreme Court level in Taunoa v Attorney-General [2008] 1 NZLR 429 and did not do so.

[21]     While Dr Harrison accepts that Baigent’s Case was concerned only with the acts of the police, in his submission there is nothing in the reasoning of the majority judges in that case to suggest that the compensation remedy is limited to breaches by the  executive.    Dr Harrison  submits  that  the  wider  ratio  of  Baigent’s  Case  is supported by the fact that in Auckland Unemployed, a case decided at the same time as Baigent’s Case, the plaintiffs’ claim seeking compensation for breach of s 21 of the Bill of Rights arose out of the judicial act of issuing an invalid search warrant

(albeit on the basis of a faulty police application).  That claim was reinstated by this Court  and  permitted  to  proceed  against  the  Attorney-General  as  defendant.    In Dr Harrison’s submission, the majority could not have reinstated the claim unless they were of the view that the judicial act of issuing a search warrant was open to Bill of Rights challenge and could properly found a claim for Bill of Rights compensation.

[22]     Dr Harrison also rejects the view that subsequent Privy Council cases have effectively overruled Maharaj.  First, he submits that the continued good standing of Maharaj in underpinning the Bill of Rights compensation remedy has been recently confirmed by the majority of the Supreme Court in Lai v Chamberlains [2007]

2 NZLR 7. Secondly, the subsequent Privy Council authorities and their discussion of Maharaj must be read in the context of what was at issue in those cases.   In contrast to Maharaj, in both Hinds and Forbes the Privy Council did not find that the constitutional rights of the respective claimants had been breached by the judiciary. In Independent Publishing, the approach taken by the Privy Council must be read in the context of the constitutional provision at issue, which provided for a “right not to be deprived [of liberty] except by due process of law”.  Thirdly, he points out that the statements from Maharaj actually relied on by the majority in Baigent’s Case have not been subsequently questioned at all.

[23]     Dr Harrison submits further that Mr Chapman’s claim involves no collateral challenge to criminal processes.   Its purpose is to redress breaches of the Bill of Rights and not to address errors arising from criminal proceedings.   In any event, Mr Chapman was discharged.  Further, Dr Harrison notes that the Supreme Court in Lai considered that the public interest in finality of litigation (both criminal and civil) was sufficiently protected by applying and, if necessary, developing the abuse of process doctrine, together with the companion principles.   Preservation of this interest did not require additional blanket protection in the form of barristerial immunity, even in cases of criminal conviction.   In Dr Harrison’s submission, the same reasoning can be applied in the context of Bill of Rights compensation.

Issues

[24]     The following issues arise:

(a)       Is Baigent’s Case limited to acts by the executive? (b)           Has Maharaj been overruled?

(c)       Is  the  action  an  inappropriate  collateral  challenge  to  criminal proceedings?

[25]     Before dealing with these issues, it is helpful to examine the reasoning in Baigent’s Case and Auckland Unemployed in some detail and to outline subsequent developments in this Court and the Supreme Court as well as summarising the Law Commission response.

Baigent’s Case and Auckland Unemployed

[26]     Baigent’s  Case  concerned  a  search  warrant  that  had  been  issued  for Mrs Baigent’s property in the mistaken belief that the house was occupied by a cannabis dealer.  The cannabis dealer in fact occupied a house with the same number in a different street.  When police arrived at Mrs Baigent’s address, her son told them they had the wrong address and phoned his sister, who was a barrister and who also told the police they had the wrong address.  Notwithstanding that, the police went ahead  and  executed  the  search  warrant,  allegedly  saying  to  the  sister  on  the telephone, “we often get it wrong, but while we are here we will have a look around anyway”.

[27]     Mrs Baigent commenced civil proceedings against the Crown, including for damages  for  breaches  of  the  Bill  of  Rights  in  making  an  unreasonable  search, contrary to s 21.  She did not challenge the judicial act of issuing the warrant, but rather its execution by the police.   The Attorney-General applied to strike out the claim.  By a majority, this Court (Cooke P, Casey, Hardie Boys and McKay JJ with

Gault J dissenting) held that the Bill of Rights cause of action, which had been struck out at High Court level, should be reinstated.

[28]     The  Attorney-General’s  argument  opposing a  Bill  of  Rights  remedy was founded on the absence of any express provision for remedies in the Bill of Rights and the legislative history, including the fact that the remedies clause in the White Paper A Bill of Rights for New Zealand 1985 had been deleted by the time of the first reading of the Bill.  The majority rejected that argument.  In this regard, all of the majority judges relied on the need to ensure an effective remedy for breaches and on the Long Title of the Bill of Rights.

[29]     The Long Title of the Bill of Rights provides that it is:

An Act –

(a)To  affirm,  protect,  and  promote  human  rights  and  fundamental freedoms in New Zealand; and

(b)To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights.

[30]     Cooke P noted that the words “protect” and “promote” are as strong as the word “vindicate”, which had influenced the Irish courts in granting a compensation remedy in the absence of a remedies clause:  see at 676.  Cooke P also stated at 676:

Subject to ss 4 and 5, the rights and freedoms in Part II have been affirmed as part of the fabric of New Zealand law.  The ordinary range of remedies will be available for their enforcement and protection.  Secondly, the long title shows that, in affirming the rights and freedoms contained in the Bill of Rights, the Act requires development of the law when necessary.   Such a measure is not to be approached as if it did no more than preserve the status quo.

[31]     Cooke P also held that the Court was obliged to provide an effective remedy for breach because the Bill of Rights applies to the judicial branch of government. He said at 676:

Section 3 also makes it clear that the Bill of Rights applies to acts done by the Courts.  The Act is binding on us, and we would fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed.  In a case such as the present the only effective remedy is compensation.  A mere declaration would be toothless.  [Emphasis added]

[32]     Cooke P agreed with Hardie Boys J that the remedies clause in the White Paper was not carried through into the Bill of Rights as introduced because it had been associated with the draft proposals for a supreme law which had not been enacted: at 677.

[33]     Casey J noted, at 691, that the Long Title stated that the purpose of the Bill of Rights is the “affirmation” of New Zealand’s commitment to the International Covenant on Civil and Political Rights (the ICCPR).  He said, at 690, that he agreed with the proposition that, while the Bill of Rights contains no express enforcement provisions, its underlying premise is that “the Courts will affirmatively protect those fundamental rights and freedoms by recourse to appropriate remedies”, referring to Richardson J’s judgment in R v Goodwin [1993] 2 NZLR 153 at 191 (CA).

[34]     Casey J pointed to the fact that, under s 3, the Bill of Rights applies only to acts done by the “legislative, executive or judicial branches of government or by persons performing public functions, powers or duties”.  He said, at 691, that:

This focus on public responsibility suggests that appropriate remedies for the breach could also be in the public law sphere, reflecting the state’s (ie New Zealand’s) undertaking in art 3 to ensure that any person whose rights or freedoms are violated should have an effective remedy.

I do not accept that Parliament intended it to be what most would regard as no more than legislative window-dressing, of no practical consequence, in the absence of appropriate remedies for those whose rights and freedoms have been violated.  [Emphasis added]

[35]     Hardie Boys J said that it was clear from the legislative history that it was not Parliament’s intention that the only remedies for infringement of rights should be those at common law, when those remedies were so uncertain or ringed about with Crown immunity so as to render them of little or no value:  at 699.  Such an intention would be incompatible with both purposes in the Long Title.  He said at 702:

The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights that the  Bill  affirms.  It is I  consider  implicit  in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed. I see no  reason  to  think  that  this  should  depend  on  the  terms  of  a  written

constitution. Enjoyment of the basic human rights are the entitlement of every citizen, and their protection the obligation of every civilised state. They are inherent in and essential to the structure of society. They do not depend on the legal or constitutional form in which they are declared. The reasoning that has led the Privy Council and the Courts of Ireland and India to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning.  [Emphasis added]

[36]     McKay J  also  referred  to  the  Long  Title  noting  that  the  protection  and promotion of rights requires that there be remedies for rights breaches, and that the ICCPR obliges state parties to provide effective remedies to persons whose rights are violated.  He said at 718:

It is impossible to interpret the Act as simply making a pious declaration of so called rights which could be infringed with impunity and would confer no remedy for their breach. The omission of art 25 of the White Paper draft does not show an intention that there should be no remedy, but rather that Parliament was content to leave it to the Courts to provide the remedy.

[37]     Two of the judges, Hardie Boys J (at 701) and McKay J (at 717), also made reference to and relied on the dictum of Holt CJ in Ashby v White  (1703) 2 Ld Raym

938 at 953:

If the plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it;  and indeed it is a vain thing to imagine a right without a remedy.

[38]     In endorsing the possibility of a compensation remedy, the majority judges placed considerable weight (Cooke P at 676, Casey J at 690, Hardie Boys J at 699 and  McKay J  at  718)  on  the  existence  of  New  Zealand’s  obligations  under international human rights covenants, the commitment to which was affirmed in (b) of the Long Title.  For example, Hardie Boys J said that he would be most reluctant to conclude that the Bill of Rights, which purports to affirm the commitment to the ICCPR, should be construed other than in a manner that gives effect to it: at 699.

[39]     The majority judges referred in particular (Cooke P at 676, Casey J at 690, Hardie Boys J at 699 and McKay J at 718) to art 2(3) of the ICCPR, which states:

Each State Party to the present Covenant undertakes:

(a)       To  ensure  that  any  person  whose  rights  or  freedoms  as  herein recognised    are                  violated          shall    have    an    effective   remedy,

notwithstanding that the violation has been committed by persons acting in an official capacity;

(b)To ensure that any person claiming such a remedy shall have his right  thereto  determined by competent judicial, administrative  or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c)       To ensure that the competent authorities shall enforce such remedies when granted.

[40]     Casey J also considered it significant that New Zealand had, by its accession to the First Optional Protocol to the ICCPR, accepted individual access to the United Nations Human Rights Committee.  He said that the Bill of Rights reflects rights in the ICCPR and that “it would be a strange thing” if Parliament, which passed it one year later, must be taken as contemplating that New Zealand citizens could go to the United Nations Human Rights Committee in New York for appropriate redress, but could not obtain it from our own courts: at 691.  Hardie Boys J also said, at 700, that citizens of New Zealand ought not to have to resort to international tribunals to obtain adequate remedies for infringement of ICCPR rights that this country has affirmed by statute.   He considered that the courts are obligated to provide those remedies by domestic law.

[41]     The majority judges also relied on a number of cases from other jurisdictions. For example, among other cases, Hardie Boys J referred with approval to the Indian Supreme Court’s decision in Nilabati Bahora v Shuhi of Orissa (1993) Cri LJ 2899. He said of that case:

The Court held that its power of enforcement imposed a duty to “forge new tools”, of which compensation was an appropriate one where that was the only mode of redress available.  This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights  to  which  the  principle  of  sovereign  immunity  does  not  apply. [Emphasis added]

[42]     In  particular,  all  of  the  majority  judges  relied  on  Maharaj, citing the following passage from the majority judgment of the Privy Council delivered by Lord Diplock at 399:

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 …  [Emphasis added]

[43]     Cooke  P,  at  677,  considered  Maharaj  to provide “strong international authority” for the view that the redress of breaches of affirmed human rights is a field of its own. He stated that compensation awarded against the state for such breaches is a public law remedy and not a form of vicarious liability for tort. Casey J, at 692, noted that the overarching nature of the public law right inherent in such legislation was clearly illustrated by Maharaj.   Hardie Boys J, at 700, similarly stated that Maharaj demonstrated the view that courts are obligated to provide remedies by domestic law and the remedy is seen as one in public law and not tort.

[44]     Finally, McKay J noted, at 718, that where a right is infringed by a branch of government or a public functionary, the remedy under the Bill of Rights must be against the Crown, as rights under similar legislation were regarded by the Privy Council in Maharaj as conferring a remedy against the state.  He said:

It is the Crown as the legal embodiment of the state, which is bound by the [ICCPR] to assure an effective remedy for the violation of fundamental rights.    Parliament  has  affirmed  those  rights  in  order  to  affirm  New Zealand’s commitment to the International Covenant, but by a statute which applies only to acts by the legislative, executive or judicial branches of the government, or by any person or body in the performance of public function, power or duty:  s 3.  Where a right is infringed by a branch of government or a public functionary, the remedy under the act must be against the Crown. [Emphasis added]

[45]     The  case  of  Auckland  Unemployed  was  dealt  with  at  the  same  time  as Baigent’s Case and, as noted above at [21], it dealt with a search warrant that had been invalidly issued.  The claim for Bill of Rights compensation was reinstated by this Court.  In Auckland Unemployed, Cooke P said that he largely agreed with the judgment of Hardie Boys J in that case (as did McKay J).  Casey J agreed with the judgments of both Cooke P and Hardie Boys J.  Gault J maintained his dissent from Baigent’s Case.

[46]     Cooke P  felt  able  to  state  his  conclusions  briefly,  without  repeating  his reasoning in Baigent’s Case.  He said at 724:

1.All the causes of action pleaded for breach of the New Zealand Bill of Rights Act 1990 should be allowed to stand, as to both monetary compensation and declarations.  It can make no difference in principle whether the claim is based on s 21, s 22 or s 23(5).  These are public law claims against the state, not based on vicarious liability and not within the purview of any statutory exemption from liability...

2.There is the difference from Baigent that in the present case the search warrant is alleged to have been invalid.  (Indeed it has been so found by a District Court Judge.)  I think that unlawfulness in the obtaining or issue of the warrant would certainly be an important factor, and might  be  decisive,  as  to  liability  under  ss 21  and  22.    [Emphasis added]

[47]     Hardie Boys J, at 726, said that, insofar as the police action constituted an infringement of rights affirmed by the Bill of Rights, the appellants have “a cause of action against the Crown”, arising by virtue of the Bill of Rights and “maintainable under s 3(2)(c) of the Crown Proceedings Act 1950, if not independently of it”. Later he noted, at 728, that the statement of claim alleged “absence of reasonable grounds for belief on the part of both the applicant and the Deputy Registrar who issued [the search warrant]”.  He finished his judgment by noting at 729 that:

Consistency with the worldwide approach to basic human rights mandates a remedy based on the Bill of Rights, which falls within s 3(2)(c) of the Crown Proceedings Act, if recourse to that provision is necessary and is therefore not barred by Crown immunity.  [Emphasis added]

Subsequent case law in this Court

[48]     In Harvey v Derrick [1995] 1 NZLR 314 (CA), a judgment delivered less than a month after Baigent’s Case which dealt with a pre-Bill of Rights claim against a District Court Judge, some comments were made by Cooke P with regard to Bill of Rights compensation.  Cooke P stated, by way of postscript, at 322:

It should be added that the present judgment does not touch or call for any opinion on the possible availability of action against the state for breach of the unreasonable search or seizure provisions of the New Zealand Bill of Rights Act 1990, s 21.  If available, such an action would not lie against the individual judicial officer and would not be based on vicarious liability.  On that  subject  reference  may  be  made  to  Simpson  v  Attorney-General [Baigent’s  Case]  [1994] 3 NZLR 667; Maharaj v  Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385; and Chokolingo v Attorney- General of Trinidad and Tobago [1981] 1 All ER 244, which brings out that a mere judicial error in interpretation of the law would not give rise to such an action. [Emphasis added]

[49]     The other two judges (Richardson and Fisher JJ) did not specifically discuss Bill of Rights compensation.  However, Richardson J, after identifying the various public interest considerations which had been advanced by courts and commentators to justify judicial immunity, had this to say at 324:

Those public policy concerns [including the independence of the judiciary] have to be weighted against the public interest in providing remedies for those aggrieved by the exercise of judicial power.   Traditional tort policy would require every Judge to exercise reasonable care to ensure that he or she does only what he or she is empowered to do.  During the last 40 years and reflecting perceived social needs and a balancing of the moral claims of both parties, common law Courts have expanded the potential tort liability of professional and occupational groups.   Public law also provides remedies and in company with many other societies New Zealand has experienced an increasing focus on rights.  The conduct of Judges is amenable to the Bill of Rights guarantees, which include liberty of the person (s 22) and the right to natural justice (s 27) and ss 5 and 6 necessarily involve weighing the rights of the individual injured by judicial error against judicial immunity considerations.    The  Judges  themselves  are  in  a  particularly  sensitive position as arbiters of the bounds of their own judicial immunity.  [Emphasis added]

[50]     It is also relevant, as noted above at [6](b), that Bill of Rights compensation has been awarded for a Bill of Rights breach by a judicial officer.  In Upton v Green (No 2), Tompkins J awarded $15,000 public law compensation for breaches of the plaintiff’s rights to a fair trial and natural justice in connection with an unfair sentencing procedure adopted by a District Court Judge.  The appeal to this Court was dismissed in Attorney-General v Upton.  The Crown did not, however, challenge on appeal Tompkins J’s assumption that Bill of Rights compensation was available in these circumstances.   Tompkins J had reached this decision without having any argument advanced before him that public law compensation was unavailable for breaches of such rights.  Nor was it argued that the Attorney-General could not be liable for such breaches.

[51]     The  case  of  Rawlinson  v  Rice  [1997] 2 NZLR 651 (CA) is also of significance. That case concerned a proceeding originally based on both an alleged breach of statutory duty and the tort of misfeasance in a public office by a District Court Judge. In the event, the appeal was set down for a further hearing before a court of five judges to determine the question of whether the tort of misfeasance in a public office can apply to a holder of judicial office. However, all three judges made

comments with regard to a possible claim for compensation under the Bill of Rights, clearly assuming that Bill of Rights compensation was available for judicial breaches of the Bill of Rights.  This was an assumption shared by the Crown in that case.

[52]     McKay J said that Mr Rawlinson had initially claimed Bill of Rights damages but had abandoned this cause of action, presumably because Mr Rawlinson feared it might prejudice his obtaining a trial by jury:  at 662 – 663.  McKay J noted that the Crown accepted liability for damages for breach of s 27 of the Bill of Rights and was prepared  to  negotiate  an  appropriate  sum.     McKay J  went  on  to  say  that Mr Rawlinson should consider settlement on this basis:  at 663:

There is no doubt that [Mr Rawlinson] has suffered from the errors which have occurred, and the Crown has acknowledged that it would be liable if he claims under the Bill of Rights Act.   There is therefore a straightforward course available to him, if he chooses, by which he will receive appropriate compensation either by settlement or from the Court.  He would be wise to consider this before pursuing his present claim against Mr Rice, which if he succeeds will apparently be the first case of its kind in the common law world.

[53]     Barker J also considered that Mr Rawlinson had a genuine grievance and should be compensated.  He said, at 664:

The appellant has clearly suffered at the hands of the justice system and should be compensated.   Counsel for the respondent very properly acknowledged that the appellant had a valid claim under the New Zealand Bill  of  Rights  Act  1990.    In  my  view,  the  appellant  should  amend  his pleading to allege such a cause of action.   The quantum of that claim can then be determined by the Court, if agreement cannot be reached.

[54]     Tipping J said that he shared Barker J’s view that, from a pragmatic point of view, Mr Rawlinson would be wise to concentrate on his Bill of Rights cause of action: at 667.

Supreme Court cases

[55]     The leading case on the principles relating to Bill of Rights compensation is Taunoa.    That  case,  however,  concerned  breaches  of  the  Bill  of  Rights  by the executive.   There were no judicial breaches identified and thus no comment on

whether judicial breaches of the Bill of Rights could or could not result in compensation.

[56]     The Supreme Court had earlier made comments suggesting that Bill of Rights compensation may be available for judicial breaches.  In Lai the majority (Elias CJ, Gault and Keith JJ) stated that:

[66]     We agree with the view that a collateral challenge to a subsisting conviction will usually be an abuse of process [footnote: compare the view taken  by  the  Court  of  Appeal  for  Ontario  in  Wernikowski  v  Kirkland, Murphy & Ain (2000) 181 DLR (4th) 625 at paras [45] – [46] that abuse may require some additional element]. There may be exceptions however. It would be unwise to be too definite. If appeal is precluded by statute or it would be unreasonable to require an appeal to be pursued (as in the case of minor offending where a sentence has been served) and there is no element of public vexation in the claim proceeding in the circumstances of the case, the public interest may lie in permitting it to proceed. Remedies in public law against the state, considered for example in Maharaj …, illustrate that remedies for error in criminal proceedings are  sometimes  appropriately obtained outside the criminal justice system itself [footnote: compare the views expressed by Lord Hobhouse quoted at para [36] above and the joint majority opinion in D’Orta-Ekenaike quoted at para [44] above, that any damage suffered as a result of the criminal justice system is part of the price of citizenship].  Such cases are exceptional. ...

[74]      The criminal justice system on the other hand is not a system of party delineated justice.   It imposes sanctions in the name of society as a whole.   It provides for correction of errors through enhanced appeal opportunities, in a manner not available to civil litigants.  Those acquitted at trial or discharged after appeal have to accept lawful deprivation of liberty in the meantime as part of the system.   They usually have no entitlement to compensation, except in those cases where an ex gratia payment is made by the State or where there is a public law claim against the State outside the criminal  justice  system  [footnote:  for  example,  for  breach  of  the  New Zealand Bill of Rights Act on the basis recognised.]  [Emphasis added]

[57]     Comments relating to Bill of Rights compensation were also made by the Supreme Court in the recent case of R v Williams [2009] 2 NZLR 750. In that case, the Supreme Court held that there had been undue delay in bringing Mr Williams to trial in terms of s 25(b) of the Bill of Rights. That included delay by the judicial branch of government, including this Court: at [15] – [17]. As to remedy generally, the Supreme Court said:

[18]     The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay.  A stay is not a mandatory or even a usual remedy.  Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been

prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so.  If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy.  If the accused has been in custody, that time will count towards service of the term of imprisonment.    In an extreme case [footnote: as, for example, in Darmalingum], the conviction may be set aside.  Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy.   If, however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.  [Emphasis added]

Law Commission response

[58]     In September 1995, following the decision of this Court in Baigent’s Case, the Law Commission was asked to advise, in the context of its work on the liability of the Crown, what legislative response, if any, there should be to the decision.  As issues of public liability and immunity were at the heart of the question, the Law Commission elected also to examine this Court’s decision in Harvey v Derrick.

[59]     In its subsequent report, Crown Liability and Judicial Immunity:  A Response to Baigent’s Case and Harvey v Derrick, the Law Commission made a number of recommendations regarding the appropriate legislative response to these decisions. It recommended that no legislative change should be made to remove the general remedy identified by Baigent’s Case for breach of the Bill of Rights and identified that the Crown would be liable under s 3(a) of the Bill of Rights for breaches of the Bill of Rights by the executive.  With regard to the issue of liability for public bodies other than the Crown performing “public functions” under s 3(b) of the Bill of Rights,  the  Law  Commission  was  of  the  opinion  that  such  bodies  should  have primary responsibility for their own conduct.   It was acknowledged, however, that the Attorney-General should be served with, and have standing to appear in, all proceedings involving construction or application of the Bill of Rights.  In response to the decision of Harvey v Derrick, the Law Commission also recommended that the present immunity from suit of High Court judges should be extended to judges of the  District  Court,  including  Environment  Court  judges  and  Māori  Land  Court judges.

[60]     Significantly,  the  Law  Commission  proposed  that  legislation  should  be enacted preventing actions against the Crown for breach of the Bill of Rights by judges of superior courts, the Employment Court, the District Court (including the Environment Court) and the Māori Land Court.  The Law Commission considered that the Crown should not have primary liability for breaches of the Bill of Rights by such judges for the following reasons:

(a)The policy reasons underlying the current law of judicial independence and immunity, in particular, the need for finality in litigation, the availability of adequate rights of appeal and review and existing redress for judicial acts, would weigh against allowing Bill of Rights litigation in respect of judicial conduct: at [155].

(b)It would be undesirable for judges to have to appear as witnesses in cases concerning their own conduct, with their evidence subject to findings of credibility as would inevitably happen in actions against the Crown for judicial breaches of the Bill of Rights: at [155].

[61]     Accordingly, the Law Commission recommended rejection of Maharaj in New Zealand, to the extent that it provided authority for Crown liability for breaches of the Bill of Rights by judges: at [156].

[62]    The Law Commission also examined the implications of New Zealand’s reservation to art 14(6) of the ICCPR.  Article 14(6) provides:

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.

[63]     However, in 1978, when the New Zealand Government ratified the ICCPR, it entered a reservation in respect of art 14(6).  The reservation provided:

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.

[64] The Law Commission noted that New Zealand’s reservation to art 14(6) of the ICCPR and the absence of other redress for those who had suffered from a miscarriage of justice, owing to the doctrine of judicial immunity being applied, resulted in a gap in the law for those who had suffered miscarriages of justice: at [180]. In light of the Law Commission’s recommendations that a public law remedy should be excluded for judicial conduct, it was proposed that consideration should be given to providing a remedy for those who had suffered punishment as a result of a miscarriage of justice, as provided for in art 14(6) of the ICCPR: at [186].

[65]     In November 1997, Cabinet released an interim guideline, outlining criteria for compensation for persons who had been wrongly convicted and imprisoned. After the subsequent Law Commission report, Compensating the Wrongly Convicted (NZLC R49 1998), Cabinet released further guidelines in December 1998 which expanded  the  criteria  for  eligibility  and  factors  to  be  taken  into  account  in determining quantum of compensation.    Significantly, in its discussion in Compensating the Wrongly Convicted of other potential remedies that would be available to an individual tried for an offence that he or she did not commit, the Law Commission acknowledged that there was a possibility that remedies under the Bill of Rights, including possibly damages, could be available where rights under s 25 of the Bill of Rights had been breached: at [58].

[66]   The 1998 Guidelines were further revised in 2001, and remain current: Compensation and Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned in Criminal Cases (Pol Min (01) 34/5 12 December 2001).  The current guidelines provide limited coverage for those who have suffered from miscarriages of justice.  Claimants will be eligible for compensation if they have been wrongly convicted of an offence and have served all or part of a sentence of imprisonment and have had their convictions quashed on appeal without an order of retrial or if they have received a free pardon under s 407 of the Crimes Act.   The current guidelines provide that claimants must establish their innocence on the balance of probabilities.

[67] We now turn to an examination of the three questions set out at [24] above.

Is Baigent’s Case limited to acts by the executive?

[68]     We are unable to accept the submission made by Dr Collins on behalf of the Attorney-General that the narrow ratio of Baigent’s Case (outlined at [13](b) above) should be confirmed as correct. While Baigent’s Case concerned the actions of the police, there is nothing in that decision that suggests that the principles enunciated relate only to breaches of the Bill of Rights by the executive.  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:   see above at [30] - [37].   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.

[69] Further, all of the majority judges placed considerable weight on New Zealand’s obligations under international human rights covenants, including under art 2(3) of the ICCPR, outlined at [39] above. It is a well established constitutional principle that the government includes the three branches of government: the legislature, the executive and the judiciary (see, for example, Tribe American Constitutional Law (3ed 2000) at 7, Hood Phillips and Jackson Constitutional and Administrative Law (8 ed 2001) at 10), and it is clear under international human rights law that the state is responsible for breaches by all these three branches of government: see generally Joseph, Schultz and Castan The International Covenant on Civil and Political Rights (2ed 2004) at [1.76A], Freeman and Van Ert International Human Rights Law (2004) at 343.

[70]     Indeed, as outlined by the European Court of Justice in Köbler v Republik Osterreich [2004] QB 848 at [32], in international law a state which incurs liability for breach of an international commitment is viewed as a single entity, irrespective of whether the breach which gave rise to the damage is attributable to the legislature, the judiciary or the executive. Applying this principle, the Court thus established that individuals should have the possibility of obtaining redress in the national courts

for damage caused by the infringement of  European Community rights: at [32] and

[36].

[71]     In New Zealand, judicial acts are capable of giving rise to civil and criminal due  process  obligations,  for  which  the  state  will  be  answerable under  the  First Optional Protocol to the ICCPR (as noted above at [40] this was relied upon by Casey and Hardie Boys JJ in Baigent’s Case).   See, for example, Communication No. 1368/2005:  E.B. v New Zealand, 21 June 2007 at [8.5], [9.2], [9.3] and [10].

[72]     Moreover, the fact that the majority judges in Baigent’s Case did assume that a Bill of Rights compensation remedy could extend to acts by judicial officers is made clear by the majority’s reliance on Maharaj.  That case concerned a breach of the Constitution of Trinidad and Tobago by a Judge in the High Court of Trinidad and Tobago.  The breach arose from a Judge’s order committing a barrister, engaged in a case in the High Court, to prison for seven days for contempt of court.   The majority in Baigent’s Case relied on Maharaj as authority for the proposition that breaches of the Bill of Rights are a direct public law liability of the state itself, without any indication that a breach of the Bill of Rights by the judiciary would not sound in compensation. Indeed, McKay J noted that, where a right is infringed by a branch of government, which he had earlier said included the legislative, executive or judicial branch of government, then the remedy must be against the Crown: see above at [44].

[73]     We accept Dr Harrison’s submission that Auckland Unemployed makes it clear that the wider ratio of Baigent’s Case is the correct ratio.  Cooke P in Auckland Unemployed stated that unlawfulness in the obtaining “or issue of the warrant” would be an important factor when deciding on liability under the Bill of Rights: see above at [46]. As noted by Hardie Boys J in Auckland Unemployed, the statement of claim in that case dealt with failures on the part of both the police and the Deputy Registrar (in that context a judicial officer) who issued the search warrant: see above at [47]. The Bill of Rights compensation claim was nevertheless reinstated.

[74]     It follows that we do not accept Dr Collins’ submission that the Auckland

Unemployed statement of claim was confined to errors made by the police.   This

does  not  accord  with  the  comments  made  by  Hardie  Boys  J  in  Auckland Unemployed, noting that the statement of claim alleged the absence of reasonable grounds for belief on the part of the Deputy Registrar when issuing the search warrant: see above at [47].

[75]     Moreover, it can be seen as significant that Parliament has not adopted the Law Commission’s recommendation that legislation should be enacted to exclude the Crown from liability for judicial breaches of the Bill of Rights.   While the recommendation that District Court judges be granted the same immunity from suit as  superior  court  judges  was  enacted  pursuant  to  s 7  of  the  District  Court Amendment Act 2004, Parliament has not seen fit to follow the recommendation regarding the exclusion of the Baigent’s Case cause of action for judicial breach.

[76]     Relevantly, in the Explanatory Note to the Judicial Matters Bill (the original Bill providing for the extension of judicial immunity), it was stated that judicial immunity would not preclude other remedies for persons aggrieved by some action by a Judge, for example, compensation from the Crown in cases of miscarriage of justice: at 5.  The view that judicial immunity would not exclude compensation by the Crown in cases of  miscarriage of justice  was emphasised  again in the first reading of the Judicial Matters Bill: (2 September 2003) 611 NZPD at 8301.  Such comments would appear to indicate an implicit endorsement of the fact that compensation could indeed be awarded against the Crown in the case of judicial breach (although of course they could be referring to the ex gratia compensation scheme discussed above at [65] – [66]).

[77]     We also consider that subsequent case law strengthens the view that the ratio of Baigent’s Case is the wider ratio set out at [13](a) above. While we agree that in Attorney-General v Upton it was merely assumed that Bill of Rights damages could be awarded for breaches of the Bill of Rights by the judiciary, the fact that this assumption  was  made  indicates  an  acceptance  by  the  courts  (and  indeed  the Attorney-General at that time) of the availability of Bill of Rights compensation for judicial  acts.    The  same comment  applies  to  Cooke P’s  comments  in  Harvey  v Derrick and those of all three judges in Rawlinson v Rice (above at [52] - [54]) and to the comments of the Supreme Court in Lai and Williams (above at [56] and [57]).

[78]     We also accept Dr Harrison’s submission that the Crown’s argument that the actions of the judiciary should be excluded from the scope of the Bill of Rights compensation remedy would involve excluding, in part, the judicial branch from the overall operation and the “application” of the Bill of Rights, contrary to s 3, which states that the Bill of Rights applies (without qualification) to the three branches of government under s 3(a).  Further, we accept his submission that it would be odd to carve out an exception for judicial error (and in particular systemic judicial error) in this way, given that the judiciary is subject to the Bill of Rights.   As noted by Richardson J in Harvey v Derrick, the conduct of judges is amenable to Bill of Rights guarantees, and the judges are in a particularly sensitive position as arbiters of the bounds of their own judicial immunity.  In light of the fact that the judiciary is subject to the Bill of Rights, it would  be inappropriate for the judiciary themselves to exclude one form of remedy for breaches of the Bill of Rights by judicial officers.

[79]     There would be major practical problems in any event if we accepted the narrow ratio of Baigent’s Case.   As noted above at [5], we are dealing with the questions outlined at [7] on the basis of judicial breach only and we are prepared to assume  for  the  purposes  of  this  application  that  the  sole  responsibility  for  the ex parte appeals process in operation at the time of Mr Chapman’s original appeal rested with the judiciary.  That, however, will not always be the case.  For example, in the case of search warrants,  the responsibility for any errors in the application for the warrant will rest with the executive, but the responsibility for its wrongful issue on the basis of an inadequate application rests on the judicial officer who issued it (as in Auckland Unemployed).  Indeed, without the wrongful issuing of the warrant by the judicial officer involved, no search would normally take place.   Arguably therefore the judicial officer is more responsible for the breach than the person making the application.

[80]     In the case of undue delay under s 25(b) of the Bill of Rights, the position is also likely to be often mixed, as was the case in Williams: see above at [57]. There would often be grave difficulties in apportioning responsibility between the judiciary and the executive for any delay. An acquitted person, whose rights to a trial without undue delay had been breached, would be left with no remedy for the periods of the delay caused by judicial delay, despite the fact that there was no other effective

remedy.  If that were the case, it would have been expected that the Supreme Court would have said so.

Has Maharaj been overruled?

[81]     Dr  Collins’  next  submission  was  that  Maharaj  has  been  overruled  by subsequent Privy Council cases.   Even if this was the case, however, it does not follow that we should confirm the narrow ratio of Baigent’s Case.  This is because Maharaj was one only of the cases relied on by the majority in Baigent’s Case.  We have already noted at [68] that there is nothing in Baigent’s Case to suggest that it was limited to acts by the executive.   Indeed, the reliance on New Zealand’s international law obligations suggests the contrary.  Further, Auckland Unemployed made it clear that judicial breaches of the Bill of Rights could lead to a Bill of Rights compensation remedy: as noted above at [46] – [47].

[82]     In addition, given that Maharaj and the subsequent Privy Council cases were not appeals from New Zealand, it is uncertain whether they are binding on New Zealand (except to the extent they are accepted as authoritative by the New Zealand courts, as was the case with Maharaj): see R v Chilton [2006] 2 NZLR 341 at [112] - [113] (CA). In any event, given that all the Privy Council cases were dealing with a different constitutional structure, they are not directly applicable to the Bill of Rights.

[83]     We turn now to the issue of whether in fact the subsequent Privy Council cases have effectively overruled Maharaj.  In Maharaj, the Privy Council held (Lord Hailsham dissenting) that damages were an available and appropriate remedy for the imprisonment of a barrister for contempt of court, in the absence of due process.  At the time of the original contempt of court proceedings, there was no ability to appeal to  the  Court  of  Appeal  of  Trinidad  and  Tobago  to  challenge  a  committal  for contempt.   The only avenue of challenge available was by application for special leave to appeal to the Privy Council, and there was no ability to seek bail. Consequently, the barrister had served his full sentence before his appeal to the Board was heard and determined.

[84]   The majority of the Board considered that the barrister was entitled to constitutional “redress” for a failure to observe one of the “fundamental rules of natural justice” that could not be corrected by appeal, which in this case meant the payment of compensation.  It was held, at 399, that:

In the first place, no human right or fundamental freedom recognised by Chapter I of the Constitution 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 that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1 (a); and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event. In the second place, no change is involved in the rule that a judge cannot be made personally liable for what he has done when acting or purporting to act in a judicial capacity. The claim for redress under section

6 (1) 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,

which has been newly created by section 6 (1) and (2) of the Constitution. In the third place, even a failure by a judge to observe one of the fundamental

rules of natural justice does not bring the case within section 6 unless it has resulted, is resulting or is likely to result, in a person being deprived of life, liberty, security of the person or enjoyment of property. It is only in the case

of imprisonment or corporal punishment already undergone before an appeal can be heard that the consequences of the judgment or order cannot be put

right on appeal to an appellate court. [Emphasis added]

[85]     It was the highlighted passage in the reasoning set out above that was relied on by the majority judges in Baigent’s Case, as outlined above at [42] – [44].  We also note that the reasoning in Maharaj was accepted by the majority of the Supreme Court in Lai in the context of comments on Bill of Rights damages: see above at [56].

[86]     The Privy Council decision in Independent Publishing involved a number of separate constitutional motions arising out of a Court order restricting reporting of a criminal trial.  Relevantly, it also related to claims for damages for breaches of due process rights with regard to contempt of court charges faced by two journalists who had reported the trial.   One journalist was fined and the other imprisoned for four days of a 14 day sentence before bail was granted and his appeal allowed by the

Court of Appeal of Trinidad and Tobago, with damages to be assessed in respect of the four days of imprisonment he had already served before being granted bail Significantly, the Privy Council allowed the respondent’s cross-appeal against Court of Appeal’s grant of constitutional relief on the due process ground.   Lord Brown said in relation to Maharaj:

[87]     Lord Diplock’s judgment has been widely understood to allow for constitutional redress, including the payment of compensation, to anyone whose conviction (a) resulted from a procedural error amounting to a failure to observe one of the fundamental rules of natural justice, and (b) resulted in his losing his liberty before an appeal could be heard.  That, however, is not Their Lordships’ view of the effect of the decision.  Of critical importance to its true understanding is that Mr Maharaj had no right of appeal to the Court of Appeal against his committal and equally, therefore, no right to apply for bail pending such an appeal.

[88]      In deciding whether someone’s section 4(a) “right not to be deprived [of their liberty] except by due process of law” has been violated, it is the legal system as a whole which must be looked at, not merely one part of it. The fundamental human right, as Lord Diplock said, is to “a legal system … that is fair”.  Where, as in Mr Maharaj’s case, there was no avenue of redress (save only an appeal by special leave direct to the Privy Council) from a manifestly unfair committal to prison, then, despite Lord Hailsham’s misgivings on the point, one can understand why the legal system should be characterised as unfair.  Where, however, as in the present case, Mr Ali was able to secure his release on bail within four days of his committal – indeed, within only one day of his appeal to the Court of Appeal – their Lordships would hold the legal system as a whole to be a fair one.

[89]      Once  someone committed to prison for  contempt  of  court could appeal in Trinidad and Tobago to the Court of Appeal, and meantime apply for release on bail, his position became essentially no different from that of a person convicted of any other offence.   Convicted persons cannot in the ordinary way, even if ultimately successful on appeal, seek constitutional relief in respect of their time in prison. [Emphasis added]

[87]     As Dr Collins pointed out, in coming to the above conclusions, Lord Brown referred with approval to the decisions of the Board in Hinds and Forbes which took the approach that, with the exception of egregious cases, constitutional guarantees as to a fair trial and natural justice are best given effect within the appellate process provided for (and of course by trial courts themselves). In particular, Lord Brown referred at [90] to Lord Millett’s comments at [18] of Forbes:

[The authorities] establish that it 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.  In the present case the appellant was deprived of his liberty after a fair and proper trial before the magistrate, that is to say by due process of law.  The appellant was able to challenge his conviction by way of appeal to the Court of Appeal and, when the Court of Appeal wrongly failed to quash his conviction, by way of further appeal to the Board.  The appeals were conducted fairly and without procedural error, let alone any subversion of the judicial process.   The appellant thus enjoyed the full protection of the law and its internal mechanisms for correcting errors in the judicial process.  His constitutional rights have not been infringed. … [Emphasis added]

[88]     We accept Dr Harrison’s submission that Independent Publishing casts doubt on one aspect of Maharaj only.  It did not overrule the part of Maharaj which was relied  upon  by  the  judges  in  Baigent’s  Case.    We  thus  accept  Dr Harrison’s submission that the central proposition from Maharaj relied on by the majority in Baigent’s Case remains intact:   the award of compensation against the state for human rights breaches by public actors is a public law remedy and not a form of vicarious liability in tort (see the italicised portion of Maharaj at [84] above).

[89]     We  do  not  read  Independent  Publishing  as  doing  anything  more  than rejecting Lord Diplock’s suggestion that breaches of natural justice will always lead to compensation where there has been a period of detention which has been served before a remedy has been granted.  Independent Publishing is not authority for the proposition that compensation can never be granted in such circumstances.  Indeed, the passage relied on from Forbes, set out above at [87], appears to accept that compensation could be available in egregious cases. Lord Brown said, at [89], of Independent Publishing, that constitutional relief would not be available “in the ordinary way”.  According to Independent Publishing, the issue is merely whether the system as a whole was fair.   If it was not (whether through judicial fault or otherwise), then compensation could be available.

Is the action an inappropriate collateral challenge to criminal proceedings?

[90]     Dr Collins’ next submission is that it is important to promote the finality of appeal processes by preventing collateral challenges to judicial decisions by disappointed or disaffected litigants.   Proceedings for Bill of Rights compensation would, he says, be an inappropriate collateral challenge to criminal processes.

[91]     We accept Dr Harrison’s submission that the Attorney-General’s position is unsustainable in light of the majority judgment of the Supreme Court in Lai.  In that case, the majority went so far as to contemplate the possibility that a Bill of Rights compensation claim along Maharaj lines might be appropriately brought, even in a case involving a subsisting conviction: see above at [56]. While the statements in Lai  were  obiter,  we  accept  Dr Harrison’s  submission  that  they were  considered statements.  We also accept that it is significant, in any event, that the present case does not involve a challenge to a subsisting conviction.

Is the Attorney-General the proper defendant?

Submissions

[92]     Dr  Collins  submits  that  the Crown,  constitutionally,  is  in  no  position  to control or influence the judiciary.   As such, the Attorney-General is the proper defendant  only  in  relation  to  breaches  of  the  Bill  of  Rights  by  or  with  the involvement of members, servants or agents of the executive branch of government. In his submission, that conclusion ought not to be affected by the fact that liability under the Bill of Rights is direct, not vicarious.

[93]     Dr Harrison submits that the Bill of Rights compensation remedy is a remedy directly against the state.  He submits that the reference to “the Crown in respect of Her Majesty’s Government in New Zealand” in s 2(1) of the Crown Proceedings Act reflects the wording of s 3(a) of the Bill of Rights, which expressly encompasses the legislative, executive and judicial branches.  He therefore submits that the expression “the Crown” in the Crown Proceedings Act should be read as encompassing the three branches of government.  Alternatively, the remedy is directly against the state, independent of the Crown Proceedings Act.

Our assessment

[94]     We accept Dr Harrison’s submission that the Bill of Rights compensation remedy, as outlined in Baigent’s Case, is properly characterised as a direct public

law  remedy available  against  the  state.    It  is  not  a  remedy  against  the  Crown narrowly defined as constituting only the executive branch of government.  As the first law officer of the Crown, the Attorney-General is the obvious defendant.  We are not, however, to be taken as holding that the Attorney-General is the proper defendant for breaches by public bodies set out in s 3(b) of the Bill of Rights.  We leave that point open.

[95]     We would characterise Bill of Rights compensation as a separate remedy directly against the state independent of the Crown Proceedings Act.   There is no need to extend the wording of the Crown Proceedings Act in the manner suggested by Dr Harrison.

[96]     We  do  not  consider  that  the  payment  of  compensation  by  the  state  for breaches of the Bill of Rights by judicial officers threatens judicial independence. Awards of compensation will, in light of the principles in Taunoa, generally be moderate. Other judicial decisions in the criminal justice arena have a much greater capacity to be a cost to the public purse, such as, the ordering of a retrial. Moreover, as noted above at [78], it would be inappropriate for the judiciary to exclude one form of Bill of Rights remedy for breaches committed by judicial officers. Such an action could in fact harm public confidence in the judiciary.

[97] It can also be noted that in New Zealand the funds for the operation of the judicial branch of government are held by the executive. This can be contrasted to the administrative arrangements that are in place for the High Court of Australia, the Federal Court of Australia and the Family Court of Australia: see the High Court of Australia Act 1979 and the Courts and Tribunals Administration Amendment Act

1989.  The fact that the executive in New Zealand manages the money allocated for the administration of the courts provides another reason why the Attorney-General can be viewed as the proper defendant in a claim for Bill of Rights compensation for judicial breach.

Does the Attorney-General have the benefit of judicial immunities?

Submissions

[98]     If  the  Attorney-General  is  the  proper  defendant,  then  in  Dr Collins’ submission he should be entitled to the benefit of the immunities applicable to the judicial officers who committed the breaches.  In Dr Collins’ submission, compelling public interest and policy considerations support the extension of immunity to the Crown for such claims, in particular to preserve the separation of powers and judicial independence.

[99]     Dr Harrison submits that it is the state that is the proper defendant and it is not  therefore  necessary  to  sue  individual  members  of  the  judiciary,  particularly where systemic Bill of Rights breaches are involved.  Even if it were necessary to sue individual judicial officers, in Dr Harrison’s submission there is no sufficient public  policy  justification  for  extending  the  scope  of  the  defence  of  judicial immunity to cover the public law remedy of Bill of Rights compensation.  That is especially so because no such immunity is available as against the state in respect of the Bill of Rights remedy more generally.

Our assessment

[100]   It is clear from Baigent’s Case that the Bill of Rights compensation remedy is against the state and that the state does not have the benefit of the immunities enjoyed by individuals.   In our view, this includes judicial immunities, as is clear from the passage from Maharaj approved by the majority in Baigent’s Case: see above at [42]. See also Hardie Boys J’s comments in Auckland Unemployed that the action (which included a challenge to the actions of the judicial officer issuing the warrant) would not be barred by Crown immunity: see above at [47]. The Attorney- General therefore does not have the benefit of judicial immunities.

[101]   We  consider  that  judicial  immunity  would  nevertheless  apply  to  the individual judicial officers involved.   As noted by the Law Commission, as the

public law remedy identified in Maharaj is a remedy against the state, the absolute immunity granted to judges would prevent an action against such judges personally for breach of the Bill of Rights: at [157]. See also Cooke P’s comments in Harvey v Derrick referred to at [48] above. Moreover, the principle of judicial immunity is fundamental to ensuring that judicial independence is preserved. The underlying reasons for the principle were outlined by Woodhouse J in Nakhla v McCarthy [1978] 1 NZLR 291 at 294 (CA): “[i]t lies in the right of men and women to feel that when discharging his judicial responsibilities a judge will have no more reason to be affected by fear than he [or she] will allow himself to be subjected to influences of favour.” In our view, the judicial immunity which will apply to the individual judicial officers involved in a breach of the Bill of Rights sufficiently protects the principle of judicial independence.

Is Bill of Rights compensation an appropriate remedy?

Submissions

[102]   If Mr Chapman’s claim may in principle be pursued, Dr Collins submits that an award of public law compensation will never be appropriate in circumstances such as these where the breaches of the Bill of Rights at issue have been corrected on appeal and a retrial ordered.

[103]   In Dr Harrison’s submission, this question is unhelpfully framed as there can be no generic answer to the question whether Bill of Rights compensation should be made available to remedy any particular Bill of Rights breach or breaches, whether on the part of the judiciary or otherwise.   Dr Harrison submits that there are no inherent restrictions on the availability of the Bill of Rights compensation remedy which are capable of excluding the remedy outright, either in respect of particular Bill of Rights’ rights or in respect of particular public actors.

[104]   Dr Harrison accepts that at trial the question will arise as to whether the steps taken to rehear Mr Chapman’s original appeal and to allow his appeal on a rehearing represent an outcome which has sufficiently vindicated his fair trial and natural

justice rights, without the need for an award of Bill of Rights compensation in addition:  see Taunoa at [256] and [261].

Our assessment

[105]   Mr Chapman is seeking damages for both breach of his natural justice and fair trial rights.  It was argued by the Crown, in Combined Beneficiaries Union Inc v Auckland City COGS Committee [2009] 2 NZLR 56 (CA), that Bill of Rights damages are never available for breaches of natural justice. The Court left this question open. In our view, it was inevitable that this question was not decided. We accept Dr Harrison’s submission that it is not possible to give a generic answer to this question, even in the sphere of criminal proceedings. The question of whether compensation is an appropriate remedy must be answered in individual cases in light of the principles set out in Taunoa.

[106]   Having said this, we agree with what was said by the majority in Combined Beneficiaries that Bill of Rights damages for a breach of the natural justice right in s 27(1) are likely to be rare.  They would be confined to circumstances where there is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse.  The majority in Combined Beneficiaries said:

[59]      It is also useful to assess the respondents’ submission in light of the principles behind Bill of Rights damages, discussed by the Supreme Court in Taunoa. In that case Tipping J said, at [299], that he agreed generally with Blanchard J on this topic. Henry J, at [385], was in general agreement with both Blanchard and Tipping JJ. Blanchard J’s judgment is therefore the lead judgment on this issue. We now examine the principles set out in Blanchard J’s judgment to see how far they support the Crown position.

[60]      Blanchard J noted, at [259], that Bill of Rights damages do not fill the same function as common law damages or equitable compensation and that they should not be allowed to fill perceived gaps in the coverage of the general law.

[61]      This comment strongly supports the respondents’ position.  Damages for public law wrongs are not normally available at common law and it is not the function of Bill of Rights damages to fill any perceived gap in remedies

for such wrongs.  We accept the respondents’ submission that it would be inappropriate in any event to isolate only breaches of natural justice for the award of damages and not include, for example, damage arising from irrational decisions.   The scope of remedies for public law wrongs is a complicated issue and should be tackled in a holistic rather than piecemeal fashion: for a discussion of the issues see Public and Administrative Law Reform Committee Damages in Administrative Law (1980) and The Law Commission of England and Wales Administrative Redress: Public Bodies and  the  Citizen  (Consultation  Paper  187,  2008).    See  also  the  articles referred to at [86] of Pranfield.

[62]      Blanchard J went on to say, at [259], that making amends to a victim is generally a secondary or subsidiary function of Bill of Rights damages. The more important task is to bring the infringing conduct to an end and ensure future compliance.   The award of public law damages is normally more to mark society’s disapproval of official conduct than it is to compensate for hurt to personal feelings.

[63]      The function of Bill of Rights damages is thus not to be equated with that of private law damages.  The primary purpose is to mark the breach and to deter repetition of the breach.  It is vindication rather than redress, which is the objective of Bill of Rights damages.   See also at [243] of Taunoa, where Blanchard J noted the preponderance of authority from international bodies and from the courts of other jurisdictions to the effect that damages for human rights breaches are a subsidiary remedy and are not awarded in the same way as in private law claims.

[64]      Blanchard J  in  Taunoa, at [238], also approved the comment of

Richardson J in Martin v Tauranga District Court [1995] 2 NZLR 417 at

428 (CA) that the choice of remedy: should be directed to the values underlying  the  particular  right;  should  be  proportional  to  the  particular breach; and should have regard to other aspects of the public interest.  He also, at [254], approved a comment of the Constitutional Court of South Africa that the determination of appropriate relief calls for the balancing of the various interests that might be affected by the remedy.  At [260], he said that the level of damages chosen must be such that responsible members of New Zealand society will feel comfortable with taking into account the nature of the infringed right, the nature of the breach, the effect on the victim and the other redress that has been ordered.

[65]      We consider these comments also support the respondents’ position to a degree. There is a need to balance the various interests involved.  Bill of Rights damages are paid by the State.  There is a public interest in ensuring that the State abides by the Bill of Rights.  Equally, however, the nature of the breach must be such as would shock the public conscience and thus justify the payment of damages out of the public purse.   We accept the respondents’ submission that this means that payment of damages in respect of what can be classed as relatively minor bureaucratic bungles could not be justified.

[66]      Blanchard J’s decision in Taunoa also makes it plain, at [258], that the first step in assessing whether or not to award Bill of Rights damages is to decide if non-monetary relief should be given and whether it is enough to redress the breach and the consequent injury to the rights of the plaintiff. In this regard, Blanchard J commented, at [255] of Taunoa, that a declaration is

not toothless: “it can be expected to be salutary, effectively requiring compliance for the future and standing as a warning of the potentially more dire consequences of non-compliance.” See also the comments of McGrath J at [368].

[67]     This  comment,  combined  with  Blanchard  J’s  observations  with regard to natural justice breaches at [261], also strongly support the position of the respondents.   It is difficult to conceive of a situation where Bill of Rights damages would be granted in respect of natural justice breaches that can be remedied by a declaration and a standard administrative law remedy such as remitting the matter so that natural justice can be accorded.  Where the latter remedy is not effective (as in this case) any award of damages could only be made where a declaration (in itself an effective remedy) would not suffice.

[68]     Blanchard J, in Taunoa at [255], noted that for some breaches there will be insufficient vindication and the victim will be left with a feeling of injustice. In such cases there may be an award of compensation to “provide a degree of solace to the victim,” which would not be provided by a declaration or other remedy alone. He recognised that a declaration may not adequately recognise and address the “affront to the victim”.

[69]      These comments suggest that there would need to be something more than a bare breach of the right to natural justice to attract Bill of Rights damages.   They suggest that there must, as a consequence of any such breach, be an affront to dignity or an unwarranted intrusion into personal integrity (or perhaps a major incursion into the integrity of property).  For recent discussions on dignity and human rights, see McCrudden “Human Dignity  in  Human  Rights  Interpretation”  (2008)  19(4)  Eur J  Int’l  L (forthcoming) and the comments by Hammond J in this Court’s decision in Udompun at [200] - [203].

[107]   There may be added considerations in the criminal arena:  see for example the matters referred to by William Young J in Brown outlined at [18] above. (It must, however, be acknowledged that the situation in Brown  differs  from Mr Chapman’s situation.   In Brown, this Court had earlier allowed the appellant’s appeal, quashed his convictions and ordered a new trial on the basis of evidence that had not been available at trial. After further DNA evidence and a further witness statement emerged, the defence then successfully applied for a discharge under s 347 of the Crimes Act. Significantly, it was found that there had been no errors in the decision by the Auckland District Legal Services Subcommittee not to provide legal aid for certain DNA testing. This can be contrasted with Mr Chapman’s case, in which this Court had dismissed his original appeal on the papers under a process which has been found to be unlawful.). It will also be relevant that any financial remedies for errors in the criminal justice system are limited: see the Costs in Criminal Cases Act 1967 and the limited scope of the ex gratia compensation

scheme for persons wrongly convicted and imprisoned.  As noted above at [66], the only persons eligible for ex gratia compensation are those whose convictions have been quashed on appeal but no retrial ordered, or those who have received a free pardon under s 407 of the Crimes Act, and who are shown to be innocent on the balance of probabilities.

[108]   All  of  the  above  considerations  need  to  be  taken  into  account  in  any individual case and will no doubt be examined at trial in Mr Chapman’s case.  The weight to be attached to Dr Harrison’s submission that Mr Chapman suffered from what can be characterised as a systemic breach, and whether this outweighs some of the factors discussed above, will also be a matter for trial.

Conclusion and costs

[109] The answers to the questions stated at [7] above are:

(a)      Does the Court have jurisdiction to hear and determine a claim for public law compensation for alleged breaches of ss 25 and 27 of the Bill of Rights occurring in the course of determining a criminal legal aid application and an appeal against conviction where a plaintiff’s conviction has subsequently been quashed on appeal and a retrial ordered?  The answer is in the affirmative.

(b)If  the  answer  to  (a)  is  “yes”,  is  public  law  compensation  an appropriate remedy in such proceedings?  There is no generic answer to this question and it is not appropriate to answer it in the abstract.

(c)      If the answer to (a) and (b) is “yes”, is the Attorney-General the proper defendant in such proceedings where the alleged breaches of the Bill of Rights were committed by a Registrar and judges of the Court of Appeal when determining a criminal legal aid application and an appeal against conviction?  The answer is in the affirmative.

(d)If the answer to (c) is “yes”, is the Attorney-General entitled to the benefit of the same immunities as the persons who committed the alleged breaches?  The answer is that the Attorney-General is not.

[110]   Costs for a complex appeal on a Band B basis plus usual disbursements are awarded to the respondent.  We certify for three counsel.

Solicitors:

Crown Law Office, Wellington
G C Knight, Solicitor, Christchurch for Respondent