A M Powell and R E R Gavey for Appellant Respondents in person A S Butler KC as counsel to assist the Court
Judgment:
13 June 2025 at 10 am
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay each of the respondents costs at the appropriate daily recovery rate for a party acting in person on a band A basis together with usual disbursements, in respect of steps taken on or after 1 September 2024.
Introduction The prosecution of the respondents Costs awards
Costs under the CPA and CDA Costs under the CCCA
Public law breaches of fair trial rights The public law damages award Grounds of appeal Respondents’ submissions Analysis The correct approach to assessing NZBORA liability for the Crown’s failure to comply with its disclosure obligations
Our reasons for preferring the minority approach in Henry The award of public law damages
Public law damages for undue delay in the retrial Quantum Result
[1] [4] [23] [24] [28] [40] [45] [69] [74] [75]
[76] [82] [88] [94] [98] [99]
Introduction
[1]The principal issues raised by this appeal are encapsulated in the following questions:
(a)Did the High Court err when it awarded both Mr Morrison and Mr Blackwood (the respondents) $10,000 by way of public law damages pursuant to the New Zealand Bill of Rights Act 1990 (the NZBORA) for breaches of their fair trial rights when the Crown failed to disclose a large number of relevant documents thereby forcing the abandonment of their trial nine months after it commenced?[1]
(b)Did the High Court also err when it awarded Mr Blackwood an additional $5,000 in public law damages in response to the undue delays in having his retrial heard?[2]
[2]These issues arise in the context of the High Court having previously made costs awards to the respondents under the Criminal Procedure Act 2011 (the CPA) as a result of breaches of the Criminal Disclosure Act 2008 (the CDA), and under the Costs in Criminal Cases Act 1967 (the CCCA).[3] We explain the relevant provisions of those Acts at [23]–[39].
[3]The essence of the Attorney-General’s appeal is that public law damages should not have been awarded because:
(a)such awards should be reserved for egregious and intentional instances of withholding of information by the prosecution;
(b)the disclosure breaches were adequately rectified and otherwise addressed by the criminal justice system including by way of halting the first trial and the awards made under the CPA and the CCCA; and
(c)it was not appropriate to award Mr Blackwood such damages for the undue delay in his retrial.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Attorney-General v Morrison [2025] NZCA 240
Case
[2025] NZCA 240
Decision Date
CaseChat Overview and Summary
In Attorney-General v Morrison, the Court of Appeal dismissed an appeal by the Attorney-General against a High Court judgment that awarded public law damages to the respondents for breaches of their fair trial rights under the New Zealand Bill of Rights Act 1990. The respondents, Lance David Morrison and Richard Timothy Blackwood, were originally prosecuted for charges related to the collapse of two finance companies, Viaduct Capital Ltd and Mutual Finance Ltd. The prosecution against them was marred by significant disclosure failures by the Financial Markets Authority, which led to the abandonment of the first trial. The High Court awarded costs to the respondents under the Criminal Procedure Act 2011 and the Costs in Criminal Cases Act 1967. It also awarded public law damages, finding that the Crown's failure to disclose relevant documents breached the respondents' rights to a fair trial and to be tried without undue delay. The Court of Appeal upheld the High Court's award of public law damages, rejecting the Attorney-General's arguments that such damages should only be awarded in egregious cases and that the respondents had already been sufficiently compensated by the earlier costs awards. The appeal was dismissed, and the Attorney-General was ordered to pay the respondents' costs.