Attorney-General v Morrison
[2025] NZCA 240
•13 June 2025 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA423/2023 |
| BETWEEN | ATTORNEY-GENERAL |
| AND | LANCE DAVID MORRISON |
| AND | RICHARD TIMOTHY BLACKWOOD |
| Hearing: | 13 February 2025 |
Court: | Katz, Ellis and Collins JJ |
Counsel: | A M Powell and R E R Gavey for Appellant |
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.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Table of Contents
Para No Introduction
The prosecution of the respondents
Costs awardsCosts under the CPA and CDA
Costs under the CCCAPublic 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 obligationsOur reasons for preferring the minority approach in Henry
The award of public law damagesPublic 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.
The prosecution of the respondents
[1]Morrison v Financial Markets Authority [2023] NZHC 1654 [judgment under appeal].
2Mr Morrison was not retried.
[3]R v Bublitz [2018] NZHC 373 [March 2018 judgment]; and Blackwood v R [2021] NZHC 33 [January 2021 judgment].
[4]The prosecution of the respondents and other defendants in relation to the events that have triggered these proceedings has been well documented.[4] It is sufficient to provide a brief summary of that history based on various judgments.[5]
[5]Following the collapse in 2010 of two finance companies, Viaduct Capital Ltd and Mutual Finance Ltd, the Serious Fraud Office initially investigated whether or not the companies had misled investors and made improper related party transactions. The Financial Markets Authority (the FMA) subsequently assumed responsibility for the investigations. The FMA filed charges on 11 March 2014 against the respondents and four other men associated with the companies.[6]
[6]The charges alleged the respondents had committed theft by misusing investor funds and that they had publicised false statements to induce investors to invest in the companies. Specifically, Mr Morrison faced four charges under s 220 of the Crimes Act 1961 (theft by a person in a special relationship) and three charges under s 242 (false statement by a promoter). He was also charged under s 66 of the Crimes Act. That charge alleged he was a party to a conspiracy to commit criminal offences. The alleged co-conspirators included Mr Blackwood.
[7]In addition to the conspiracy charges, Mr Blackwood faced 22 charges under s 220 and three charges under s 242 of the Crimes Act. He also faced three charges under s 377 of the Companies Act 1993 (making a false or misleading statement).
[8]The respondents pleaded not guilty to all charges on 29 September 2014. The Solicitor-General then took over responsibility for prosecuting the charges. A trial was set to commence on 9 February 2016.
[9]The FMA completed initial disclosure on 14 July 2014 as required by s 12 of the CDA. On 18 August 2015 the FMA said that it had made full disclosure pursuant s 13 of the CDA. Mr Morrison then engaged a forensic accountant who raised questions about the adequacy of the disclosures made by the FMA.
[4]R v Bublitz [2019] NZHC 222 [February 2019 judgment] at [11]–[44].
[5]Judgment under appeal, above n 1; R v Bublitz [2017] NZHC 1059 [May 2017 judgment]; and R v Bublitz [2017] NZHC 2251 [September 2017 judgment].
[6]The other defendants were Messrs Bublitz, McKay, Wevers and Chevin. Mr Chevin pleaded guilty before trial and Mr Wevers passed away before trial.
[10] Disclosure issues emerged early in the proceedings and were raised in an application made by Mr Bublitz, one of the defendants, to adjourn the start of the trial. That application was granted by Venning J so as to enable Mr Bublitz to engage counsel.[7] However, the Judge was satisfied that the disclosure issues that had been identified would have been able to be resolved before the trial was scheduled to commence.[8] The trial was rescheduled to commence on 8 August 2016.[9]
[7]R v Bublitz [2015] NZHC 2799 at [35]–[36].
[8]At [20].
[9]At [36].
[11] In the meantime Mr Morrison brought an application to have seven of the charges he faced dismissed. He argued that the FMA had buried him in an avalanche of documents that were not relevant to the charges he faced. Woolford J, who was to be the trial Judge, dismissed Mr Morrison’s application on the basis that the disclosures made by the FMA were necessary.[10]
[10]R v Bublitz HC Auckland CRI-2014-004-2293, 26 April 2016 at [4].
[12] The trial commenced on 8 August 2016. Three months were allocated. The trial was beset with issues leading to a number of charges being dismissed. It was evident that issues concerning the adequacy of disclosure were simmering throughout the trial. The first Crown witness was Mr Weir, an investigating accountant from Deloitte who was retained by the FMA. During his evidence, Mr Weir referred to the existence of further documents that had not been disclosed. This led to the Crown disclosing a further 171 documents to the defendants in October 2016.[11]
[11]September 2017 judgment, above n 5, at [23].
[13] On 23 November 2016, Woolford J considered an application for a stay brought by Mr Morrison and two other defendants (Messrs Bublitz and McKay).[12] The thrust of the application was that the size and complexity of the Crown’s case had caused the trial to become oppressive and unduly long thereby compromising the defendants’ rights to a fair trial.[13] Woolford J was not satisfied that a stay was justified at that stage.[14] Nevertheless he dismissed further charges pursuant to s 147 of the CPA so as to ensure the Crown proceeded only on those charges that reflected the “gravamen of the allegations against the defendants”.[15]
[12]R v Bublitz [2016] NZHC 2863.
[13]At [37].
[14]At [31].
[15]At [54]–[55].
[14] The Crown closed its case on 27 February 2017. On 3 March 2017 Woolford J dismissed one further charge against Mr Blackwood.[16] By this time there were two charges remaining against Mr Morrison and six against Mr Blackwood.
[16]R v Bublitz [2017] NZHC 331 at [2].
[15] Mr Bublitz opened his case on 10 March 2017. He did not give evidence himself but he did call three witnesses.[17] It was during the course of Mr Bublitz’s case that the magnitude of the disclosure issues became apparent. On 23 March, the Crown disclosed a list of a further 14,619 documents held by Deloitte. Thereafter, further documents and lists of withheld documents were disclosed on a regular basis through to early May 2017, by which stage approximately 20,000 further documents had been disclosed by the Crown or otherwise identified.
[17]May 2017 judgment, above n 5, at [15].
[16] When the enormity of the disclosure problems became apparent the taking of further evidence ground to a halt while counsel and Woolford J tried to grapple with the unfolding developments. No meaningful progress was able to be made.
[17] The defendants then applied to have the trial discontinued. Those applications were granted on 10 May 2017 with reasons delivered on 19 May 2017.[18] In his reasons judgment, Woolford J observed:[19]
[66] The admitted breaches of the [CDA] are not in dispute. All parties accept that there were considerable errors in disclosure. There is, however, no suggestion that the disclosure breaches arose out of any bad faith on the part of the Crown. I do not consider, and I do not understand the defence to have submitted, that the Crown held back any documents or any lists in an attempt to derive benefit for themselves at trial. Non-compliance with disclosure obligations was inadvertent. Nonetheless, the scope of non-compliance was extensive. The volume of late disclosure is seemingly unprecedented in New Zealand.
[18]R v Bublitz [2017] NZHC 936 at [7]; and May 2017 judgment, above n 5.
[19]May 2017 judgment, above n 5.
[18] In his concluding remarks the Judge said:
[107] It was regrettable to have granted the application to abort the trial, but I am of the view that there was a real possibility of unfairness to the defendants if the trial was to proceed. The breaches of the [CDA] have given rise to a reasonable danger or apprehension of a miscarriage of justice in the circumstances.
[19] The Crown chose not to proceed against Mr Morrison again because of his age, poor health, the toll of a lengthy trial upon him and because his culpability was allegedly less significant than the remaining defendants. The proceedings against him were dismissed by Moore J on 7 June 2017.[20]
[20]R v Morrison HC Auckland CRI-2014-004-2293, 7 June 2017 at [3].
[20] The Crown elected however to proceed again against Messrs Bublitz, Blackwood and McKay. They responded by seeking a stay of proceedings. That application was dismissed by Lang J who considered that it was still possible for the defendants to receive a fair trial, although the disclosure issues were likely to cause an unjustifiable delay of “approximately nine to twelve months”.[21] Despite this, the Judge noted that the undue delay could be remedied by a reduction in sentence in the event of conviction and that “monetary compensation is a possibility in the event of acquittal”.[22]
[21]September 2017 judgment, above n 5, at [65] and [71].
[22]At [73].
[21] The retrial commenced before Toogood J on 13 August 2018. Mr Blackwood was found guilty on 5 February 2019 of being a party to four instances of Mr Bublitz’s offending, namely knowingly misapplying funds raised by Mutual Finance Ltd in breach of restrictions on related party transactions.[23] Following his convictions Mr Blackwood was sentenced to nine months’ home detention.[24] However, Mr Blackwood’s convictions were quashed by this Court on 16 August 2019 because there was insufficient evidence Mr Blackwood was aware that the restrictions on related party transactions applied to the transactions that were the focus of the charges.[25] The Court directed orders of acquittal in relation to the four charges that Mr Blackwood had been convicted of.[26]
[23]February 2019 judgment, above n 4.
[24]R v Bublitz [2019] NZHC 592 [March 2019 judgment] at [109].
[25]Bublitz v R [2019] NZCA 364, [2019] 3 NZLR 533 [16 August 2019 judgment] at [123]–[124].
[26]At [170].
[22] Thus, three years after he was arrested, Mr Morrison was discharged. Mr Blackwood had to wait more than five years before he was acquitted on all charges.
Costs awards
[23] As foreshadowed at [2], two different types of costs were then sought by the respondents. It is helpful to first set out the statutory basis of the orders that were sought before briefly explaining the orders that were made in each case.
Costs under the CPA and CDA
[24] Section 364(2) of the CPA provides:
A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
[25] Procedural failures are defined in s 364(1) of the CPA as including a failure to comply with the CDA, which primarily created a regime for prosecuting authorities to disclose to defendants relevant information held by the prosecuting authorities. Relevant, in relation to information, is defined in s 8 of the CDA as information “that tends to support or rebut, or has a material bearing on, the case against the defendant”.
[26] Under s 364(3) of the CPA, the sum ordered “must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person”.
[27] It is clear from Te Aka Matua o te Ture | the Law Commission’s (the Law Commission) report Criminal Pre-Trial Processes: Justice Through Efficiency, which was the genesis of the CPA, that costs orders under s 364 are intended to ensure compliance with procedural requirements such as those set out in the CDA.[27] When discussing costs orders against prosecutors under what became s 364, the Law Commission said that such orders not only:[28]
… promote accountability by making performance failure explicit and public, but their impact on the budget of the agency concerned is likely to be sheeted home to the individual in their performance assessment, and therefore modify their behaviour, and the behaviour of their colleagues, in the future.
Costs under the CCCA
[27]Te Aka Matua o te Ture | Law Commission Criminal Pre-Trial Processes: Justice Through Efficiency (NZLC R89, 2005) at [398].
[28]At [400].
[28] Section 5(1) of the CCCA provides:
Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, the court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
[29] Section 5(2) then sets out a list of factors that the court is, where applicable, required to consider when determining whether to grant costs or the amount of costs granted under the CCCA. Those factors are:
(a)whether the prosecution acted in good faith in bringing and continuing the proceedings:
(b)whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:
(c)whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:
(d)whether generally the investigation into the offence was conducted in a reasonable and proper manner:
(e)whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:
(f)whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross‑examination of witnesses for the prosecution or otherwise) that he was not guilty:
(g)whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
[30] There is no presumption for or against the award of costs in any case,[29] and the fact that proceedings were properly brought and continued does not in itself constitute a basis for refusing a defendant costs.[30]
[29]Costs in Criminal Cases Act 1967, s 5(3).
[30]Section 5(5).
[31] The Costs in Criminal Cases Regulations 1987 provide a limited scale of costs.[31] Section 13(3) of the CCCA however enables the court to make orders above the scale if the court is satisfied after “having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.
[31]Costs in Criminal Cases Regulations 1987, sch 1.
[32] The focus of costs orders under the CPA is upon payments by those in the criminal justice system responsible for significant procedural failures that cannot be reasonably excused, whereas s 5 of the CCCA specifically connects the order of costs to the defendant. The order is to be for “such sum as [the court] thinks just and reasonable towards the costs of [the] defence”.[32]
[32]Costs in Criminal Cases Act, s 5(1).
[33] The differences in the statutory language governing orders under the CPA and the CCCA, and the difference in the purposes of the two regimes, have led this Court to say that orders under the CPA are primarily designed to sanction or penalise a person responsible for procedural failures, while orders under the CCCA are primarily designed to compensate (in whole or in part) a successful defendant for the costs they have incurred.[33]
[33]Bublitz v R [2019] NZCA 379 [22 August 2019 judgment] at [35]–[36] and [44].
[34] Before Mr Blackwood’s retrial, he and Mr Morrison sought costs in respect of the first trial.
[35] On 9 March 2018, Woolford J made the following awards:
(a)$75,000 to Mr Morrison towards the costs of his defence pursuant to s 5 of the CCCA;[34] and
(b)$10,000 to Messrs Bublitz, McKay, Blackwood and Morrison, as well as the Ministry of Justice | Te Tāhū o te Ture, under s 364 of the CPA to reflect the procedural disclosure failures.[35]
[34]March 2018 judgment, above n 3, at [131(a)].
[35]At [131(b)].
[36] The awards under s 364 of the CPA were to be paid by the FMA.[36]
[36]At [131(b)].
[37] Mr Morrison appealed the amount of the CCCA award. His appeal was dismissed by this Court on 22 August 2019.[37] An application for leave to appeal was declined by the Supreme Court.[38]
[37]22 August 2019 judgment, above n 33, at [60].
[38]Bublitz v R [2019] NZSC 139 at [19].
[38] Following his acquittal, Mr Blackwood sought indemnity costs pursuant to the CCCA in respect of his appeal. The sum sought was $76,526.75.[39] On 16 October 2020 this Court declined Mr Blackwood’s application.[40]
[39]Blackwood v R [2020] NZCA 504 at [1].
[40]At [25].
[39] Mr Blackwood subsequently sought indemnity costs amounting to $284,493.03 in respect of the abandoned first trial and the second trial in which he was convicted.[41] Woolford J awarded Mr Blackwood costs in the sum of $90,000 pursuant to s 5 of the CCCA in relation to the first trial.[42] The Judge concluded however that it would not be appropriate to award costs under the CCCA in relation to the retrial.[43]
Public law damages for breaches of fair trial rights
[41]January 2021 judgment, above n 3, at [6]–[7].
[42]At [21].
[43]At [19].
[40] The Attorney-General proceeded on the basis that “[w]hile available at law, [public law damages] are properly reserved for egregious and intentional withholding of information by the prosecution that the criminal court has been unable to prevent or rectify”. The Attorney-General elected not to address why public law damages are available as a matter of law where there has been a breach of a defendant’s fair trial rights, even though in this case the High Court correctly explained that issue has not previously been determined by this Court.[44] We address this issue now.
[44]Judgment under appeal, above n 1, at [199]–[205].
[41] This Court confirmed the availability of public law damages generally for breaches of rights guaranteed in the NZBORA in Simpson v Attorney-General (Baigent’s case).[45] In doing so, it said that in determining whether to award public law damages, it is for the court to determine what remedy “will best vindicate the right infringed”.[46]
[45]Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA) [Baigent’s case].
[46]At 692.
[42] Despite this, the position as to whether public law damages are available as a remedy for a breach of fair trial rights was left unsettled by this Court’s decision in Brown v Attorney-General.[47] Although it was ultimately decided that a breach of the appellant’s fair trial rights could not be established, William Young J, in a separate judgment, considered that:
[47]Brown v Attorney-General [2005] 2 NZLR 405 (CA).
[142] … New Zealand [c]ourts 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. …
While the other judges in Brown decided to “express no view” as to whether public law damages ought to be available in the event of a breach of fair trial rights,[48] they acknowledged “the strength of the views expressed by William Young J”.[49] William Young J helpfully summarised in six paragraphs his reasons for suggesting that New Zealand courts ought not award public law damages to compensate for an unfair trial:[50]
[48]At [100].
[49]At [101].
[50]At [142] (footnote added).
…
(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 [c]ourts that there was unfairness.
(c)In 1990, the legislature did not intend the enactment of [the NZBORA] to provide for anything like an entitlement to compensation for those subjected to unfair trial process. For the [c]ourts 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 NZBORA]. 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 [c]ourts rather than by way of damages. This approach is, in effect, the correlative of the [c]ourts’ willingness to exclude evidence obtained in breach of [the NZBORA] 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.[51]
(f)This approach is consistent with the most recent Privy Council jurisprudence.
[51]Referring to Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC).
[43] We respond to each of the reasons put forward by William Young J:
(a)We accept that the principles which govern fair trial rights have generally been developed in the context of determining whether or not an appeal should be allowed. As will become apparent, in this case however, the decisions of the trial court and this Court concerning the respondent’s fair trial rights have significantly assisted the decision to award public law damages. The “rules” concerning trial fairness have proven to be “well suited” to assessing the respondents’ entitlements to public law damages.
(b)Awards (generally very modest) of public law damages are likely to be available in only a very limited number of cases, involving very serious breaches of a defendant’s fair trial rights. Most breaches are likely to be remedied by trial and appellate courts using criminal law procedures, rather than through an award of damages. We do not accept that the potential availability of damages in such limited circumstances is likely to result in appellate courts being more reluctant to find breaches of fair trial rights in other contexts, such as conviction appeals. The right to a fair trial is a fundamental touchstone of criminal law. In our view there is no realistic prospect that appellate judges will be deterred from finding a breach of fair trial rights based on a misguided fear that a successful conviction appeal may be a catalyst for a subsequent claim for public law damages.
(c)It is true that there is no reference in the NZBORA to enforceable remedies let alone any reference to monetary compensation for breaches of a defendant’s fair trial rights. The absence of such provisions has not however precluded New Zealand courts from cautiously developing enforceable remedies for breaches of the NZBORA, including claims for compensation. As we have noted, that evolution commenced with the judgment of this Court in Baigent’s case,[52] and gained further impetus in Taunoa v Attorney-General.[53] There, the Supreme Court held that:[54]
In determining whether a measure of damages should form part of the remedy in a particular case the Court should begin with the nature of the right and the nature of the breach.
Although the Court noted that “[s]ome rights are of a kind where a breach is unlikely to warrant recognition in monetary terms”, it never excluded the possibility that a breach of fair trial rights may in some circumstances be appropriately addressed by way of public law damages.[55] Overall, the Court emphasised that in assessing the appropriate remedy, the primary focus is on deterrence and vindication.[56] Fair trial rights are not their own separate class of rights and there is no principled reason to distinguish fair trial rights from other rights contained in the NZBORA. On the contrary, allowing the availability of public law damages in the event of a breach of fair trial rights further acknowledges the harm caused when fair trial rights are breached by the state.
(d)As noted above, we agree that most breaches of a defendant’s fair trial rights are unlikely to be remedied by trial and appellate courts by public law damages.[57] The fact that the criminal justice system may adequately address most fair trial breaches is not a compelling reason to disallow all claims for public law damages where fair trial rights have been breached.
(e)Similarly, the fact that public law damages can only be awarded where the state causes an unfair trial is not a reason for a blanket rejection of public law damages in this type of case. On the contrary, the availability of such damages should serve as a perpetual reminder to the state of its obligation to uphold the fair trial rights of all defendants.
(f)William Young J’s concerns were consistent with Lord Hailsham’s dissenting remarks in Maharaj v Attorney-General of Trinidad and Tobago (No 2),[58] and similar observations in three Privy Council cases in which he suggested showed breaches of a right to fair trial are best addressed through the criminal appellate process.[59] Those cases predated important Canadian judgments in which the Supreme Court of Canada has recognised claims for public law damages for breaches of rights affirmed by the Canadian Charter of Rights and Freedoms (the Charter). We will explore those cases later in this judgment. They generally accord with NZBORA jurisprudence, unlike the Privy Council cases referred to by William Young J. For present purposes we note that since Brown, New Zealand jurisprudence has evolved. Allowing public law damages in appropriate cases where fair trial rights have been breached is consistent with the recognition in Taunoa that public law damages may be appropriate to vindicate breaches of NZBORA rights. Such damages should be able to co-exist with criminal procedures for addressing breaches of a defendant’s fair trial rights. However, such damages are unlikely to be the “remedy of choice” where fair trial rights have been breached.[60]
[52]Baigent’s Case, above n 45.
[53]Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.
[54]At [261].
[55]At [261].
[56]At [253].
[57]Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [35.6.24].
[58]Maharaj v Attorney-General of Trinidad and Tobago (No 2), above n 51.
[59]Hinds v Attorney General of Barbados [2001] UKPC 56, [2002] 1 AC 854; Forbes v Attorney General [2002] UKPC 21, [2003] 1 LRC 350; Independent Publishing Co Ltd v Attorney General of Trinidad and Tobago [2004] UKPC 26, [2005] 1 AC 190; and Brown v Attorney‑General, above n 47, at [132].
[60]Butler and Butler, above n 57, at [35.6.24].
[44] Thus, we agree with the Attorney-General that public law damages are, as a matter of law, an available remedy to address a breach of fair trial rights.
The public law damages award
[45] In August 2021, the respondents commenced civil proceedings against the Attorney-General and the FMA seeking general, special, exemplary and public law damages. The first two causes of action relied upon the tort of breach of statutory duty. Those two causes of action alleged:
(a)the Attorney-General should be liable for the FMA’s breach of disclosure obligations under s 13 of the CDA which prevented the respondents from preparing and presenting their defence; and
(b)the Attorney-General should be liable for the prosecution’s failure to ensure the FMA complied with its disclosure obligations under s 13 of the CDA, and for failing to discontinue the proceeding.
[46] In a judgment dated 30 June 2023, McQueen J reasoned that the text, purpose and context of the CDA demonstrated Parliament did not intend to create a private right of action in tort to enforce any breach of disclosure obligations under s 13 of the CDA and accordingly, the Attorney-General could not be liable for the FMA’s disclosure breaches.[61]
[61]Judgment under appeal, above n 1, at [115]–[116].
[47] Mc Queen J also concluded that there is no merit to the second cause of action because:
(a)the Attorney-General could not be responsible in tort for any breach of the FDA’s statutory duty of disclosure;[62] and
(b)the High Court had consistently held the prosecution was properly brought, notwithstanding the disclosure failures.[63]
[62]At [125].
[63]At [132].
[48] The third cause of action sought public law damages for breaches of the respondents’ fair trial rights under ss 24(d), and 25(a)–(b) and (e)–(f), of the NZBORA.
[49] McQueen J accepted that the right to a fair trial, contained in s 25(a) of the NZBORA, is absolute and cannot be subject to reasonable limitations under s 5 of the NZBORA.[64] She also accepted that the constituent rights in ss 24 and 25 are not necessarily absolute and that once it is established that a constituent right has been breached, the Crown bears the onus of proving that the trial was otherwise fair.[65]
[64]At [143].
[65]At [143].
[50] The Judge found that s 24(d), the right to adequate time and facilities to prepare a defence, was clearly engaged.[66]
[66]At [143].
[51] The Judge was also satisfied that s 25(b), the right to be tried without undue delay, was relevant to Mr Blackwood’s case in relation to the approximate 12-month delay in the commencement of the retrial.[67] Section 25(b) was not, however, relevant to Mr Morrison’s case.[68]
[67]At [148].
[68]At [148].
[52] The Judge was satisfied that s 25(e), the right to present a defence, was engaged as s 25(e) implies a right to all information required to advance a defence.[69] McQueen J also accepted that the right to examine witnesses affirmed in s 25(f) was relevant as the ability to examine witnesses implies a right to do so with the benefit of full disclosure.[70]
[69]At [144].
[70]At [145].
[53] Of crucial importance to the assessment of NZBORA liability based on a breach of disclosure obligations was the approach which the Judge took to the judgment of the Supreme Court of Canada in Henry v British Columbia (Attorney General).[71]
[71]Henry v British Columbia(Attorney General) 2015 SCC 24, [2015] 2 SCR 214.
[54] Mr Henry had been convicted of sexual offending in 1983 but his convictions were quashed in 2010 after he had spent nearly 27 years in prison.[72] The reason for his appeal succeeding was that the Crown had failed to disclose material requested by the defence prior to the trial, including victim statements, key forensic evidence and information about another suspect who had been previously arrested in the vicinity of the attacks.[73] Mr Henry sought compensation from the Attorney General of British Columbia for the breach of his rights arising from the non-disclosure of that material. The application relied on the Charter.[74]
[72]At [1].
[73]At [9] and [11]–[12].
[74]At [21].
[55] The Supreme Court was split on the test for Charter damages in cases of prosecutorial misconduct where there is no proof of malice. The distinction between the two approaches focussed upon a prosecutor’s intention. The majority, comprising Abella, Moldaver, Wagner and Gascon JJ, held:[75]
… a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence.
[75]At [31].
[56] The elements of a successful claim were described in the following way by the majority:[76]
(a)the prosecutor intentionally withheld information;
(b)the prosecutor knew or reasonably ought to have to known that the information was material to the defence and that failure to disclose would likely impinge on their ability to make full answer and defence;
(c)withholding the information violated the defendant’s Charter rights; and
(d)the defendant suffered harm as a result.
[76]At [85].
[57] The minority, comprising McLachlin CJ and Karakatsanis J, considered that intention to withhold information was not an essential element.[77]
[77]At [138].
[58] In her analysis, McQueen J favoured the approach taken by the minority.[78] Five reasons underpinned the approach taken by the Judge:
(a)As the right to a fair trial is absolute and disclosure obligations impact upon that right, where those obligations are breached in a significant way without reasonable excuse, there is no principled reason to require that the prosecution intentionally withheld the information.[79]
(b)Disclosure obligations are legal obligations and prosecutors have very limited discretion in respect of disclosure.[80]
(c)Good governance and the rule of law is strengthened when the Crown is held to account for failing to comply with obligations imposed by the NZBORA.[81]
(d)Requiring an intentional element does not cause a “chilling effect” on prosecutors.[82]
(e)The imposition of an intent requirement is contrary to the effective fulfilment and exercise of rights by individuals.[83]
[78]Judgment under appeal, above n 1, at [168].
[79]At [173].
[80]At [174] and [175(a)].
[81]At [175(c)].
[82]At [175(d)].
[83]At [176].
[59] In summary, McQueen J said that in New Zealand, a claim for public law damages based upon a prosecutor’s failure to disclose relevant documents requires a plaintiff to show that:[84]
…
(a)the prosecutor withheld information (this requires that a plaintiff prove a prosecutor was in possession of the information and failed to disclose it, whether or not this was intentional or inadvertent);
(b)the prosecutor knew or ought reasonably to have known that the information was material to the defence (“directed to some matter in the case”) and that the failure to disclose would likely impinge on their ability to bring a defence;
(c)withholding the information breached their rights under the NZBORA; and
(d) they suffered harm as a result (on the basis of a ‘but for’ test).
[84]At [179].
[60] There was little to no dispute that the respondents had established the first two requirements of the four-part test set out by the Judge.[85] The only issues were whether the disclosure failures breached the respondents’ fair trial rights, including in the case of Mr Blackwood the right to be tried without undue delay and, if so, whether the respondents ought to have an award of damages made in their favour.
[85]At [180].
[61] The Attorney-General argued that any real possibility of unfairness was eliminated by the abandonment of the first trial and the fact Mr Morrison was not retried, and by the fact that Mr Blackwood’s rights were upheld at his second trial and on appeal.[86]
[86]At [181].
[62] The Judge rejected this argument saying:[87]
The criminal justice process contains many safety valves to guard against the possibility of miscarriages of justice, but the fact that such a safety valve (for example, prosecutorial discretion, or a successful appeal) operates as it should, cannot operate to entirely vindicate public actions that infringe fair trial rights.
[87]At [182].
[63] McQueen J was satisfied that the respondents’ rights under ss 24(d) and 25(e)–(f) of the NZBORA were breached in the first trial because:[88]
(a)“The plaintiffs did not have adequate time and facilities to prepare their defence”.
(b)They were not “able to examine witnesses under the same conditions as the prosecution”.
(c)“Had they had full disclosure, there would have been alternative ways for them to present their defence, the choice of which they did not have”.
[88]At [184].
[64] Having found that three of the constituent rights in ss 24 and 25 of the NZBORA had been breached, the Judge then considered whether the Crown had established that the trial itself was otherwise substantively fair.[89] McQueen J found that the Attorney-General failed to discharge the onus placed upon him, as the “[respondents’] rights to present an effective defence were hindered”.[90] The Judge concluded:[91]
… that [as] the Crown has been unable to dispel the onus of establishing that the original trial was substantively fair … the [respondents’] fair trial rights were in fact breached.
[89]At [186], citing R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [83].
[90]Judgment under appeal, above n 1, at [187].
[91]At [189].
[65] When considering the right to be tried without undue delay affirmed in s 25(b) of the NZBORA, McQueen J agreed with the previous findings of Lang J who concluded that there had been undue delays in the re-prosecution of Mr Blackwood.[92] McQueen J said:[93]
… I consider that given the sole responsibility for the abortion of the original trial must fall upon the Crown, that the Crown must also be responsible for the roughly [12-month] delay between the abortion of the first trial and the start of the second. That delay was both unjustifiable and undue …
[92]At [191] and [194], citing September 2017 judgment, above n 5, at [71].
[93]At [194].
[66] McQueen J then went on to consider whether or not she should exercise her discretion to award public law damages. In doing so, the Judge considered the Supreme Court’s decision in Taunoa.[94] In that decision, Blanchard J set out the general principles that govern the awards of public law damages for breaches of the NZBORA in the following way:[95]
[94]Taunoa v Attorney-General, above n 53.
[95]See also Dotcom v Attorney-General [2018] NZCA 220, [2018] NZAR 1298 at [30].
[253] The Court must provide an effective remedy. The primary task is to find overall a remedy or set of remedies which is sufficient to deter any repetition by agents of the state and to vindicate the breach of the right in question. …
…
[255] In undertaking its task the Court is not looking to punish the state or its officials. For some breaches, however, unless there is a monetary award there will be insufficient vindication and the victim will rightly be left with a feeling of injustice. In such cases the Court may exercise its discretion to direct payment of a sum of monetary compensation which will further mark the breach and provide a degree of solace to the victim which would not be achieved by a declaration or other remedy alone. … Although it can be accepted that in New Zealand any government agency will immediately take steps to mend its ways in compliance with the terms of a Court declaration, it is the making of a monetary award against the state and in favour of the victim which is more likely to ensure that it is brought home to officials that the conduct in question has been condemned by the Court on behalf of society.
[256] It may be entirely unnecessary or inappropriate to award damages if the breach is relatively quite minor or the right is of a kind which is appropriately vindicated by non-monetary means, such as through the exclusion of improperly obtained evidence at a criminal trial. It may also be unnecessary if a damages award under another cause of action has adequately compensated the victim, especially so where that award has a component of aggravated damages. In such a case there is nothing to be gained by way of vindication by adding a nominal sum for the [NZBORA] breach.
[67] In applying Taunoa to this case, McQueen J noted:
(a)The broad focus of the enquiry is whether monetary compensation is necessary to vindicate the breach effectively and proportionately.[96]
[96]Judgment under appeal, above n 1, at [197], citing Taunoa v Attorney-General, above n 94, at [106] per Elias CJ dissenting; at [232] per Blanchard J; at [300] per Tipping J; and at [364]–[366] per McGrath J.
(b)Any remedy must be directed to the values that underline the right which has been breached.[97]
[97]Judgment under appeal, above n 1, at [197], citing Taunoa v Attorney-General, above n 94, at [367] per McGrath J.
[68] In concluding that monetary awards were appropriate to vindicate the breaches of the respondents’ “fundamental rights”,[98] the Judge then made declarations that the Attorney-General had breached the respondents’ rights to a fair trial and that Mr Blackwood’s right to be tried without undue delay had been breached.[99] The Judge awarded Mr Morrison $10,000 for the breaches of his rights,[100] and Mr Blackwood $15,000 for the breaches of his rights, of which $5,000 was to reflect the undue delay in relation to the second trial.[101]
[98]Judgment under appeal, above n 1, at [206]–[207].
[99]At [211(a)]–[211(b)].
[100]At [208] and [211(c)(i)].
[101]At [208]–[209] and [211(c)(ii)].
Grounds of appeal
[69] Initially the Attorney-General advanced three grounds of appeal:
(a)The respondents’ rights under the NZBORA were not breached. The trial that was affected by the late disclosure was abandoned before a verdict, with no further charges brought against the first respondent, and the second respondent was retried in a trial that has not been impugned.
(b)The High Court erred when it preferred the approach of the minority of the Supreme Court of Canada in Henry. Public law damages should not have been awarded in respect of the first trial because the disclosure errors were unintentional. In any event, the disclosure errors were remedied upon those errors being discovered and disclosed before the trial was complete. The respondents have already had remedies for the disclosure omissions by way of the awards under the CPA and the CCCA.
(c)The undue delay in trying Mr Blackwood that was caused by the late disclosure did not warrant any further remedy.
[70] The Attorney-General abandoned the first ground of appeal. Nevertheless, in his written and oral submissions, Mr Powell, counsel for the Attorney-General, endeavoured to suggest that McQueen J only found that the Attorney-General breached the subsidiary fair trial rights affirmed in ss 24(d) and 25(e)–(f) of the NZBORA in relation to the abandoned trial.
[71] Mr Butler KC, who was appointed as counsel to assist the Court, correctly emphasised however that in fact McQueen J found that the Attorney-General had failed to establish that the breaches of ss 24(d) and 25(e)–(f) in relation to the abandoned trial did not result in a breach of the overarching and immutable right to a fair trial affirmed by s 25(a). As we have noted at [64], McQueen J clearly held that the magnitude of the disclosure omissions in the first trial were such “that the [respondents’] fair trial rights were in fact breached”.[102]
[102]At [189].
[72] Mr Butler highlighted four factors underpinning McQueen J’s conclusion that the respondents’ fair trial rights were breached:
(a)The first trial was brought to an end by Woolford J because of a “reasonable apprehension of a miscarriage of justice”.[103]
[103]At [183].
(b)Had the respondents been given full disclosure, they would have had alternative ways to advance their defence.[104]
[104]At [184].
(c)The disclosure failures were, to quote Woolford J, “unprecedented”.[105]
[105]At [183(d)] and [185]; and May 2017 judgment, above n 5, at [66].
(d)The first trial proceeded for nine months without the respondents having the ability to present an effective defence until the point was reached when it was “unsafe to continue” with the trial.[106]
[106]Judgment under appeal, above n 1, at [187].
[73] Thus, having abandoned the argument that the respondents’ rights under the NZBORA were not breached, the Crown is also bound to the corollary finding that those breaches amounted to a breach of the inalienable right to a fair trial set out in s 25(a) of the NZBORA. As Mr Butler submits, “the correct starting point [in respect of the appeal] must be that the respondents received an unfair trial”. We accordingly reject the Attorney-General’s attempt to focus primarily on s 24(d) and the attempt to place to the margins the High Court’s uncontested finding that the respondents’ rights under s 25(a) were breached in relation to the first trial.
Respondents’ submissions
[74] In their written and oral submissions, the respondents endorsed the High Court judgment and explained, from their perspectives, the seriousness of the Crown’s breaches of the relevant provisions of ss 24 and 25 of the NZBORA. They also explained the enormous toll of the effect of the prosecutions upon themselves and their families. The harm caused to the respondents by the prosecutions included severe financial stress and reputational harm.
Analysis
[75] We shall now address the remaining two grounds of appeal advanced by the Attorney-General.
The correct approach to assessing NZBORA liability for the Crown’s failure to comply with its disclosure obligations
[76] As foreshadowed, the key issue is whether McQueen J erred when she favoured the approach of the minority in Henry.
[77] Henry was preceded by another significant judgment of the Supreme Court of Canada in Vancouver (City) v Ward.[107] That case concerned a Vancouver lawyer who was mistakenly arrested by police when they thought he was going to disrupt a ceremony by throwing a pie at the Prime Minister of Canada.[108] Mr Ward was arrested for breach of the peace, strip searched and held in custody for several hours before he was eventually released without charge.[109] His car was also seized.[110] Mr Ward successfully brought a claim for public law damages.[111] He was awarded $5,000 for having been strip searched and $100 for the seizure of his car by the Supreme Court of British Columbia.[112] Those awards were upheld by the British Columbia Court of Appeal.[113] Mr Ward’s claim was then appealed to the Supreme Court of Canada in which the Court unanimously articulated the following framework for awarding damages for breach of the Charter:[114]
[107]Vancouver (City) v Ward 2010 SCC 27, [2010] 2 SCR 28.
[108]At [6]–[7].
[109]At [8]–[9].
[110]At [9].
[111]At [66] and [69].
[112]At [11], citing Ward v Vancouver (City) 2007 BCSC 3, 63 BCLR (4th) 361.
[113]Vancouver (City) v Ward, above n 107, at [12], citing Ward v Vancouver (City) 2009 BCCA 23, 89 BCLR (4th) 217.
[114]Vancouver (City) v Ward, above n 107, at [4].
… damages may be awarded for [Charter] breach under [s 24(1)] where appropriate and just. The first step in the inquiry is to establish that a [Charter] right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would [fulfil] one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.
[78] The Supreme Court of Canada upheld the $5,000 award for the unconstitutional strip search of Mr Ward but overturned the $100 award for the seizure of his car.[115] The damages for the strip search were upheld on the basis that they were appropriate to vindicate Mr Ward’s Charter rights and to deter future unconstitutional strip searches.[116] The Court was satisfied that a declaration would not be an adequate remedy and that the Government had not demonstrated that the damages award would negate effective governance.[117] The award for the unlawful seizure of Mr Ward’s car was however set aside because he “did not suffer any injury as a result of the seizure” and because damages were not necessary to vindicate or deter a Charter violation that was not of a serious nature.[118]
[115]At [79].
[116]At [72]–[73].
[117]At [41]–[42] and [68].
[118]At [77].
[79] The Supreme Court’s judgment in Ward was widely endorsed by academic commentators who described it as “a principled and promising foundation for [Charter] damages”[119] and a “reasoned balance between remedying [Charter] violations and public policy considerations”.[120]
[119]Kent Roach “A Promising Late Spring for Charter Damages: Ward v. Vancouver” (2011) 29 NJCL 145 at 147.
[120]James Stribopoulos “The Sweet Taste of Just Desserts: Constitutional Damages for Charter Violations” (26 July 2010) TheCourt.ca < we have noted, in Henry a majority of the Supreme Court of Canada departed from the approach taken in Ward by introducing into claims based upon breaches of the Crown’s disclosure obligations the additional requirement that the Crown intentionally withheld information it knew or should have known was material to the defence. Two concerns appear to have influenced the majority’s approach:[121]
[121]Henry v British Columbia(Attorney General), above n 71, at [71].
First, the liability threshold must ensure that Crown counsel will not be diverted from their important public duties by having to defend against a litany of civil claims. Second, the liability threshold must avoid a widespread “chilling effect” on the behaviour of prosecutors.
[81] The minority, however, were satisfied that Ward provided an appropriate framework for assessing the competing considerations.[122] In particular, the minority considered the third step in the Ward framework provided opportunity to assess any countervailing policy considerations advanced by the Crown.[123]
[122]At [104].
[123]At [119].
Our reasons for preferring the minority approach in Henry
[82] Like McQueen J, we prefer the approach of the minority in Henry. We start by considering the “good governance” concerns expressed by the majority.
[83] We are not persuaded by the majority concern of a possible “chilling effect” on Crown prosecutors if a public law damages claim based upon a prosecutor’s failure to comply with the CDA can succeed in the absence of evidence that the non-disclosure was intentional. There are four reasons for rejecting this argument:
(a)As the Supreme Court of Canada noted in Ward, where public law damages deter the infringement of rights, they promote good governance, not undermine it.[124] The purpose of the rights enshrined in ss 24 and 25 of the NZBORA is to protect defendants from harm, not shield the state from the inconvenience of litigation when it fails to comply with its legal duties.
[124]Vancouver (City) v Ward, above n 107, at [38].
(b)The fear that claims for non‑disclosure would proliferate is difficult to reconcile with the practical reality that issues of disclosure usually arise during the course of a prosecution, at which time the court will make one of two rulings.[125] Either the disputed material must be disclosed, thereby causing minimal prejudice to a defendant if the disclosure occurs in sufficient time to enable the defendant to advance their defence, or, that disclosure is not required thereby effectively immunising the prosecution from any possible civil claim.[126]
[125]Brooke MacKenzie “Backpedalling on Charter Damages: Henry v. British Colombia (Attorney General)” (2016) 45 Advoc Q 359 at 373.
[126]At 373.
(c)It is difficult to conceive of how exactly a prosecutor would be “chilled” by the possibility of public law damages for wrongful non-disclosure. It is after all not open to a prosecutor to elect whether or not to comply with the CDA. They have a legal duty to do so. Rather than be “chilled”, prosecutors should err on the side of caution and ensure that all potentially relevant information is properly disclosed. Ensuring that a defendant receives a fair trial is not an optional criterion. It is a matter of fundamental entitlement.
(d)Modest awards of public law damages mean that few claims will be commenced, and those that are properly commenced are likely to settle.
[84] We also find it difficult to accept that a prosecutor’s failure to comply with his or her disclosure obligations requires a plaintiff to prove the non-disclosure was intentional, whereas other Bill of Rights breaches such as, for example, the strip search in Ward, do not require a plaintiff to demonstrate an intentional breach of his or her guaranteed rights. There is nothing unique about a prosecutor’s disclosure obligations that justifies the heightened threshold for liability favoured by the majority in Henry.
[85] McQueen J correctly stressed that the respondents were entitled to a fair trial but they did not get one. The right to a fair trial is inalienable.[127] As a matter of principle we agree with the Judge that it is not relevant whether the Crown intended to deprive the respondents of their rights. Obviously, as Mr Butler submits, if the respondents’ right to a fair trial had been deliberately breached then that would likely result in a higher award of damages. As New Zealand jurisprudence has established however, the absence of intention on the part of the Crown does not in itself mean that damages cannot be awarded.[128]
[127]R v Condon, above n 89, at [77].
[128]Whithair v Attorney-General [1996] 2 NZLR 45 (HC) at 56–57; and Attorney-General v Udompun [2005] 3 NZLR 204 (CA), at [177].
[86] We also find no attraction in the Attorney-General’s submission that because steps were taken to remedy the disclosure errors by the first trial being terminated and full disclosure being made that there was not an unfair trial. The steps taken by Woolford J to halt the first trial were driven by his concerns that a miscarriage of justice was likely to arise if the trial continued and the respondents were convicted. The Attorney-General’s approach conflates a miscarriage of justice with an unfair trial. While there may be a degree of overlap between those two concepts, they are not synonymous. The Crown can fairly prosecute a defendant in circumstances where a miscarriage of justice arises and conversely, a trial can be unfair and not result in a miscarriage of justice because, for example, the trial is stopped and no miscarriage arises in respect of the retrial.
[87] We also see no merit in the Attorney-General’s argument that before public law damages can be awarded, the claimant needs to demonstrate that the undisclosed information was “game-changing”. The logical consequence of this submission is that unless the undisclosed information would have supported an acquittal then there is no room for public law damages where a prosecutor fails to comply with the CDA. That suggestion raises two fundamental points:
(a)as the Crown acknowledged, compliance with the CDA is “fundamental to trial fairness”; and
(b)in this case, as McQueen J held, the failure to comply with the CDA meant the respondents were denied their “right to decide how they [would] wish their case to be run on the full documents they [were] entitled to use”.[129]
[129]Judgment under appeal, above n 1, at [185].
The award of public law damages
[88] As set out above, the general principles governing the award of public law damages for breaches of the NZBORA can be found in the Supreme Court’s decision in Taunoa. We pause at this juncture to address an aspect of the Attorney-General’s submissions in which it was said “an award of public law damages is a residual remedy that will only be appropriate in exceptional circumstances”. We agree with Mr Butler that the words “rare” and “exceptional” do not appear in any of the judgments cited in Taunoa. Although this Court in Currie v Clayton did say that NZBORA damages are “exceptional”,[130] properly understood that was a statement of empirical fact, and should not be construed as a criterion for the award of public law damages.
[130]Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 at [81], citing Brown v Attorney-General [2003] 3 NZLR 335 (HC) at [118]; and Philip A Joseph Constitutional and Administrative Law in New Zealand (4th ed, Thomson Reuters, Wellington, 2014) at [27.3.4(2)].
[89] In our assessment, McQueen J was correct to award public law damages in this case for the following three overarching reasons.
[90] First, such an award was necessary in respect of the first trial to vindicate the significant breaches of the respondents’ rights to a fair trial. Those breaches were correctly described as significant and unprecedented.[131]
[131]May 2017 judgment, above n 5, at [66]; and judgment under appeal, above n 1, at [194].
[91] Secondly, making an award of public law damages in this case highlights to prosecuting authorities that the Crown’s failures to comply with its disclosure obligations will not be tolerated by the courts.
[92] Thirdly, the awards made to the respondents under the CPA and under the CCCA, while significant, served different purposes to an award of public law damages. As we have explained, the awards under the CPA were to sanction or punish the FMA for its failure to comply with the CDA. On the other hand, the awards under the CCCA were primarily designed to compensate the respondents for the costs they incurred in successfully defending the charges. The primary role of public law damages is however to vindicate the breaches of the respondents’ rights, and in this case, their right to a fair trial.
[93] We accordingly conclude that McQueen J made no error when she awarded public law damages for the breaches of the respondents’ rights to a fair trial in relation to the first trial which Woolford J terminated.
Public law damages for undue delay in the retrial
[94] The Attorney-General accepts that the delay in retrying Mr Blackwood was undue. Nevertheless the Attorney-General submits that it was not necessary to award additional damages to Mr Blackwood for the breach of his right to be tried without undue delay.
[95] The Attorney-General submits that McQueen J set the threshold for awarding damages for undue delay at too low a level but did not explain the basis of this submission.
[96] We can see no error on the part of McQueen J when she exercised her discretion to award Mr Blackwood $5,000 in damages for the undue delay in his retrial. There are four factors that influence this decision:
(a)The retrial of Mr Blackwood was caused directly by the Crown’s errors. The Crown and only the Crown was responsible for the need for the retrial.
(b)The retrial started four and a half years after Mr Blackwood was arrested.
(c)Mr Bublitz, who was also convicted following the retrial, received a 19-month allowance in his sentence.[132] This was appropriate judicial recognition of the impact on Mr Bublitz of the delay in the retrial. Mr Blackwood’s ultimate acquittal by this Court did not ameliorate the impact of the delay upon him.
[132]March 2019 judgment, above n 24, at [93]; and 16 August 2019 judgment, above n 25, at [164].
(d)When he declined a stay of the retrial, Lang J noted that one alternative remedy available for undue delay was public law damages in the case of an acquittal.[133]
[133]September 2017 judgment, above n 5, at [73].
[97] We accordingly see nothing wrong in principle in the award made by McQueen J to Mr Blackwood in respect of the undue delay in his retrial.
Quantum
[98] The Attorney-General has not appealed the quantum of the awards which could be rightly described as very modest. We note that in relation to the award to Mr Blackwood for undue delay in his retrial, the award made was consistent with international jurisprudence on awards for undue delays in trials.[134]
[134]Hutchison Reid v United Kingdom (2003) 37 EHRR 9 (ECHR) (€2,000 award); Mitchell and Holloway v United Kingdom (2003) 35 EHRR 52 (ECHR) (€5,000 award); and McFarlane v Ireland (2011) 52 EHRR 20 (ECHR) (€5,500 award).
Result
[99] The appeal is dismissed.
[100] The 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.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Appellant
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