Attorney-General v Udompun
[2005] NZCA 128
•26 May 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA244/03
BETWEENATTORNEY-GENERAL ON BEHALF OF THE MINISTER OF IMMIGRATION
First AppellantANDATTORNEY-GENERAL ON BEHALF OF THE NEW ZEALAND POLICE
Second Appellant
ANDPIMTHONG UDOMPUN
Respondent
Hearing:13 September 2004
Court:McGrath, Glazebrook, Hammond, William Young and O'Regan JJ
Counsel:S P France and B J Keith for Appellants
O Woodroffe for Respondent
Judgment:26 May 2005
JUDGMENT OF THE COURT
AThe appeal is allowed. The award of damages of $50,000 and the associated pre-judgment interest is set aside and replaced by damages in the sum of $4,000 payable to the respondent by the second appellant. No pre-judgment interest is awarded on that sum.
BThe question of costs in the High Court is remitted to that Court to be determined in the light of this judgment. There is no award of costs in this Court.
REASONS
McGrath, Glazebrook, William Young, O’Regan JJ (Given by Glazebrook J) [1]
Hammond J (dissenting in part) [191]
MCGRATH, GLAZEBROOK, WILLIAM YOUNG, O’REGAN JJ
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
The legislation [4]
Overview of Heath J’s judgment [5]
Background facts [11]
Events at Christchurch Airport [11]
Events at Auckland Airport [31]
Events at Papakura Police Station [56]
Subsequent events [71]
Issues for the appeal [72]
Section 27(1) of BORA [73]Heath J’s judgment [73]
Crown’s submissions [76]Mrs Udompun’s submissions [82]
Discussion [87]
Conclusion [103]
Section 23(1) of BORA [104]
Heath J’s judgment [104]
Crown’s submissions [111]
Mrs Udompun’s submissions [115]
Discussion [118]
Conclusion [132]
Section 23(5) of BORA [133]
Heath J’s judgment [133]
Crown’s submissions [136]
Mrs Udompun’s submissions [139]
Discussion [141]
Conclusion [148]
Measure of compensation [149]
Heath J’s judgment [149]
Crown’s submissions [155]
Mrs Udompun’s submissions [165]
Discussion [167]
Conclusion [178]
Interest and indemnity costs [179]
Heath J’s judgment [179]
Crown’s submissions [181]
Mrs Udompun’s submissions [183]
Discussion [185]
Conclusion and costs in this Court [189]
Appendix
Introduction
[1] Mrs Udompun is a Thai national. In October 1999 she arrived at Christchurch Airport from Singapore. She was refused entry to New Zealand and returned on the same flight two hours later. In September 2000 Mrs Udompun flew to New Zealand, this time arriving at Auckland Airport on 20 September 2000. She was again refused entry. As the next available flight was not until 22 September, she was detained first by the airport police and then at Papakura Police Station pending her departure.
[2] Heath J, in a decision of 24 October 2003, now reported as Udompun v Minister of Immigration (2003) 7 HRNZ 238, held that the Immigration Service and the police had breached Mrs Udompun’s rights under ss 23(1)(b), 23(5) and 27(1) of the New Zealand Bill of Rights Act 1990 (BORA). He held that the Immigration Service had breached its natural justice obligations at Christchurch Airport, that Mrs Udompun was not properly advised of her rights to counsel when she was to be detained in Auckland and that she had not been treated in a proper manner while detained at the Papakura Police Station. He awarded compensation totalling $50,000 in respect of these breaches, interest from the date of the breaches and (provisionally) indemnity costs, later confirmed by judgment of 12 February 2004.
[3] The Crown appeals against Heath J’s decision in its entirety.
The legislation
[4] The relevant provisions from BORA are:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful. ...
(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. ...
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
Overview of Heath J’s judgment
[5] The Judge found that Mrs Udompun had established a breach of s 27(1) of BORA at Christchurch Airport in October 1999. This breach arose from the failure to make an appropriately qualified interpreter available to ensure that Mrs Udompun understood the questions put to her at the border and was able to respond to them.
[6] The Judge was not satisfied, on the evidence as a whole, that there was any similar breach in Auckland. The Auckland immigration officer, Ms Mayne, did engage assistance from an accredited interpreter while questioning Mrs Udompun. The flaw in the Auckland process was, in Heath J’s view, the reliance placed by Ms Mayne on what occurred in Christchurch the previous year as, unbeknown to Ms Mayne, Mrs Udompun had not had the opportunity to respond adequately to the officer’s questions in Christchurch.
[7] Heath J rejected the proposition that Mrs Udompun was detained while she had been undergoing immigration processes. Thus, he found that Mrs Udompun was not detained for the purposes of s 23 of BORA, either during the period that she was in Christchurch or during her time at Auckland Airport prior to being taken into police custody. In reaching this conclusion, the Judge took the view that the Immigration Act 1987 drew a clear distinction between arriving in New Zealand and actually entering. It envisages a period during which, although physically in New Zealand, a proposed entrant has not entered New Zealand for the purposes of s 18 of BORA (freedom of movement).
[8] The Judge was not prepared to find any obligation on the part of the police to comply with the principles of natural justice after Mrs Udompun was placed in detention. The obligations of the police were limited to ensuring Mrs Udompun was properly advised of her rights under BORA. In this regard, Heath J found a breach of s 23(1) of BORA by the airport police. In his view, the police had failed to bring home to Mrs Udompun, at the time of her detention under s 128 of the Immigration Act, the rights afforded to detained persons, including her right to counsel.
[9] Heath J also found a breach of s 23(5) of BORA, arising out of the events at Papakura Police Station. This breach arose from the failure of the police to provide an opportunity to Mrs Udompun to obtain a change of clothes from her luggage before she was detained at the police station for two nights and the failure to make available the sanitary products needed by her. The Judge dismissed the claim that Mrs Udompun’s treatment rose to the high level of a breach of s 9 of BORA (cruel and degrading treatment) or could be described as discriminatory contrary to s 19.
[10] The Judge made a global award of damages of $50,000. Interest on $10,000 of that sum was to run from 24 October 1999 (the date of the Christchurch breach) and on the remainder from the date of Mrs Udompun’s arrival in Auckland on 20 September 2000. The damages and interest were apportioned equally between the two respondents. Heath J also awarded indemnity costs in favour of Mrs Udompun and again each respondent was liable to pay one half of these costs.
Background facts
Events at Christchurch Airport
[11] Mrs Udompun, travelling with her husband, arrived at Christchurch International Airport on the Sunday of Labour Weekend, 24 October 1999. Mrs Udompun’s testimony was that she and her husband had flown from Bangkok to Singapore and had then taken a Singapore Airlines flight to New Zealand. She said that they had saved for the trip out of her THB10,000 a month that she made from selling food in the markets and her husband’s THB15,000-20,000 a month income derived from taxi driving.
[12] Although there was a visa waiver scheme in operation at the time between New Zealand and Thailand and Thai citizens did not require a visa, Mr and Mrs Udompun still required a permit to enter New Zealand. Such permits are granted at the airport. On arrival at Christchurch, the Udompuns were referred by a customs officer to Mr Daly, an immigration officer. He took the view that they were part of a group of five Thai nationals travelling together. Mr Daly acknowledged, however, that he did not specifically ask whether the five were travelling as private individuals or as a group. Mr Daly was also unaware that Mr and Mrs Udompun were husband and wife.
[13] Consistent with his view that the five were travelling as a group, Mr Daly put all his questions to one member of the group, a Ms Kumsastra, who was the only English speaker. She appeared to him to be the group leader and she had agreed to interpret on behalf of the group. There was usually a Thai speaking interpreter at Christchurch Airport, but he was on leave that weekend and when Mr Daly rang the Thai Embassy for assistance, no one answered and no one responded to the message that he left. He acknowledged that embassies are normally available for assistance for their citizens 24 hours a day seven days a week but said that if the Embassy did not answer the telephone or ring back, then there was little that could be done.
[14] Mr Daly said that, if there had been no passenger able to interpret, he would have had an interpreter brought in but the group would have to have been detained at Christchurch Central Police Station until the interpreter was available. The Immigration Service’s preference at that time was to turn people around quickly rather than detain them. After these events, Mr Daly expressed concern to his Branch Manager about the need for qualified and independent interpreters to be available more readily. We understand that his concerns have subsequently been acted upon.
[15] The discussions involving Mr Daly and Ms Kumsastra took place in the secure baggage area within the border control area at Christchurch Airport. Mr Daly estimated that they took about 30 minutes, including the baggage search conducted by Customs in his presence. He said that, when he asked questions of Ms Kumsastra, she spoke in Thai to others in the “group”. As this happened each time he said something, he assumed that she was translating what he had said to the group. Responses were given in Thai from various members of the group. Ms Kumsastra then gave a short response to Mr Daly’s question in English.
[16] Mr Daly acknowledged that, during the course of his discussions with Ms Kumsastra, he was uneasy about whether her responses fairly reflected the views of the individuals to the questions being put. This was because there had been quite long conversations in Thai resulting in very short answers in English. Mr Daly confirmed in re-examination, however, that he had no doubt that Ms Kumsastra’s English was good and, while he had doubts about whether the length of her answers adequately conveyed what had been said in Thai among the members of the group, he still believed she was talking for the group.
[17] Mr Daly’s evidence was that Ms Kumsastra told him that the five Thais were all business people and part of a group who had won the trip for being successful “Nu Life” salespeople. She said that they had come to New Zealand for about a week to walk the Milford Track. They had two nights accommodation in five rooms booked in Christchurch but no other accommodation. She said that they were going to rent a car to drive to Queenstown. She acknowledged that no one had a licence but said that, if they could not rent a car, then they would go by taxi or bus.
[18] A number of factors led Mr Daly to conclude that the five Thai nationals were travelling as part of a group (apart from Ms Kumsastra’s assertion that they were) and that they were not bona fide visitors. According to his evidence, he shared his concerns with Ms Kumsastra.
[19] The first factor taken into account by Mr Daly was that each member of the group had tickets issued by the same travel agency, newly issued passports and NZD1,000 in consecutively numbered NZD20 notes. Mr Daly had at one point said in a report to the solicitors for Mrs Udompun that the group’s passports were consecutively numbered as well but he acknowledged in evidence that this was an error. The mistake did not appear in his notes made at the time Mrs Udompun was denied entry.
[20] Secondly, the contents of the group’s luggage were in his view inconsistent with Ms Kumsastra’s account of the itinerary. A customs search had revealed only three bags for the group and no other bags had been left behind in the baggage hall. Each of the three bags contained one new toothbrush, one new tube of toothpaste, one new bottle of handcream, one old pair of women’s sandals, one pair of women’s high heels, one women’s dress and one pair of men’s underwear. Mr Daly considered that this attire was incompatible with Ms Kumsastra’s claim that the group intended to walk the Milford Track. He had informed Ms Kumsastra of his view but received no response. He said that Ms Kumsastra had spoken with the group after the exchange over the clothes and that the group had laughed. He had not pressed the point. Mr Daly acknowledged, however, that it was possible that the group had intended to purchase clothes in New Zealand or that they had mistaken the nature of the Milford track.
[21] Thirdly, Mr Daly considered that the group did not show the same standard of organisation or general dress as previous “Nu Life” groups he had encountered. Mr Daly had noted that there was no “Nu Life” logo on the bags. Ms Kumsastra was also unable to point to any document setting out the itinerary or to any letter from “Nu Life” as to the trip.
[22] Finally, the fact that the group had only booked two nights accommodation in Christchurch was, in Mr Daly’s view, inconsistent with the group’s travel plans as explained by Ms Kumsastra.
[23] Mr Daly acknowledged, in response to questions from the Bench, that he would have put different weightings on the factors identified if he had not considered the five to be travelling as an organised tour group. He would, for example, not have been quite so concerned with the fact that they only had two nights accommodation booked. He would have retained his suspicions about the genuineness of the visit but he would have conducted further inquiries before making the decision to deny entry. For example, he would have talked to each member of the group separately through an interpreter to ensure that there was no collaboration between them as to their answers.
[24] For completeness, we remark that the final decision to deny Mrs Udompun and the others entry into New Zealand was not Mr Daly’s. He had to clear his decision with his superior, Mr Lockhart, which he did by telephone. Mr Daly recorded in a memorandum a summary of his interview with Ms Kumsastra as well as his recommendation to Mr Lockhart and the latter’s acquiescence.
[25] The only member of the alleged group to give evidence was Mrs Udompun. Ms Kumsastra was not called to give evidence by either party. Mrs Udompun’s testimony was that, although she was there when Mr Daly was talking to Ms Kumsastra, she did not know what they were talking about because she did not understand English. She was not sure how much English Ms Kumsastra understood but she had not been able to interpret anything that had been said to her in English to the others. Mrs Udompun acknowledged that she did not ask Ms Kumsastra what she and Mr Daly were talking about but said that was because they were talking to each other rather than to her. She denied knowing that they were talking about whether she and her husband would be allowed into New Zealand.
[26] Mrs Udompun said that she first realised that she was not going to be allowed in when she was taken back to board the aeroplane. She had at that point asked Ms Kumsastra what was happening but Ms Kumsastra had said that she did not know. Ms Kumsastra told them that they had to return to Thailand but she said there had been no explanation given by Mr Daly as to why that was the case. Ms Kumsastra had postulated that it was because one of the group was wearing a jacket with New Zealand on it, as Mr Daly had asked why someone from Thailand would have such a jacket. Mr Daly was not asked about this.
[27] As to the factors relied on by Mr Daly, Mrs Udompun’s evidence was that she and her husband were not travelling in a group. She had come to New Zealand to see Mrs Homhual Emmett, who had married a New Zealander and who lived in Auckland. Although cousins, Mrs Udompun and Mrs Emmett had been brought up, in Thai custom, as sisters. Mrs Udompun acknowledged that she had not asked to use a telephone when she was in Christchurch, despite having her cousin’s telephone number and despite the fact that she telephoned her cousin on the second occasion in Auckland. She explained this by saying there was no opportunity to use a telephone in Christchurch.
[28] Mrs Udompun said that she had not contacted her cousin before her arrival in Christchurch. She and her husband had flown to Christchurch because Mrs Udompun wanted the visit to be a surprise and for her cousin to say how clever they had been to get to Auckland. They had not booked accommodation in Christchurch because they were going straight to Auckland on the train. Mrs Udompun said that she did not know how much the train was going to cost but she knew there was one from “the paper”. Heath J accepted that Mr and Mrs Udompun were unaware of the practical difficulties of taking a train from Christchurch to Auckland.
[29] Mrs Udompun acknowledged that she knew the other three travellers because Ms Kumsastra lived near her in the suburbs of Bangkok and all three sold food in the same markets that she did. Her evidence (accepted by the Judge) was that, although she had met the other travellers, they were not travelling together and were not close friends. Mrs Udompun said that the first time she realised the other travellers were coming to New Zealand was when she saw them at Bangkok Airport. She had, however, seen the other three Thais go into the bank just after she and her husband had changed their money to New Zealand currency. They had told her that they were going to exchange money but not the currency. They had not spoken much. She denied knowing that the others had exactly the same amount of New Zealand currency in consecutively numbered notes and could offer no explanation for that, apart from the fact that they went into the bank after her. She acknowledged that the travel agency where she brought the tickets and the bank where she changed the money were in the city “quite far away” (she was recorded as saying about 40kms away) from the suburb where she lived and worked.
[30] As to the contents of her baggage, Mrs Udompun’s evidence was that she and her husband had a small checked bag containing five changes of clothing for her and her husband (but no shoes). She also had a small carry on bag containing money and powder for her face and some other “little things”. Heath J made no finding on whether Mrs Udompun and her husband had luggage other than the bags attributed to the group. She gave evidence that officials had tipped everything out of her bag at customs and checked the money in her carry on bag. Her husband had his money separately and she did not see anyone check his money. She said that two of the other travellers were a couple with one bag between them also.
Events at Auckland airport
[31] Just under a year after being returned to Thailand from Christchurch, Mrs Udompun arrived in New Zealand at 12.30pm on 20 September 2000, this time at Auckland International Airport on a Thai Airways flight. Her evidence was that she had come to visit her cousin and that she had come at that time because she was to accompany her aunt (who was out visiting her cousin) back to Thailand.
[32] Mrs Udompun was referred on arrival to an immigration officer, Ms Mayne, because she had previously been refused entry into New Zealand. Mrs Udompun had to wait some five and a half hours before both Ms Mayne and an interpreter were available to interview her. As an aside, we note that Ms Mayne’s evidence was that, if food or a shower were needed by a person waiting to be interviewed, that person could be taken back to the transit area where there are food and shower facilities. Mrs Udompun was not offered a shower but it is common ground that she had been free to use the toilet facilities while waiting for Ms Mayne to interview her. It appears from Ms Mayne’s evidence that neither food or a shower would be offered unless a request were made.
[33] According to Ms Mayne’s notes of interview with Mrs Udompun, Ms Mayne told Mrs Udompun that, after her previous refusal of entry, she would have been informed of the need to apply for a visa before trying to return to New Zealand. Mrs Udompun denied being given that information. According to the notes, Mrs Udompun said:
Last time sent back home the officer quite good to us and said we could come back when we are ready.
[34] Ms Mayne did not find this answer credible. In her initial affidavit Mrs Udompun said that Ms Kumsastra had told her in Christchurch that they would not need visas if they came to New Zealand again. In her evidence in Court, however, she said that Ms Kumsastra had said that she did not know if they would need visas. When she was making her preparations to come back to New Zealand, however, she had been told that she would not need a visa. In addition, her aunt had not got a visa before coming to New Zealand.
[35] According to the interview notes, Ms Mayne then asked “Last time you came in a group – what for?” Mrs Udompun had replied “5 of us for sightseeing. We were refused + sent back home.” In evidence before Heath J, Mrs Udompun said that she had told Ms Mayne that, on her last visit, she had come to New Zealand on holiday to visit her cousin and that she was not in a group. Ms Mayne said that she did not recall Mrs Udompun saying that she was not with the group.
[36] When asked how she had been able to afford two airfares in less than a year Mrs Udompun replied (according to Ms Mayne’s notes) that this was from her husband’s savings. She had said earlier in the interview that the airfare to Auckland had cost THB24,000. She said in evidence before Heath J that it had taken her and her husband about ten years to save up for the trip to Christchurch. When she had been sent back, however, she had put the currency she had taken with her to Christchurch in the bank. She took it out again to come to Auckland.
[37] Ms Mayne, in her interview notes, had recorded Mrs Udompun’s occupation as housewife and her husband’s as taxi driver. Mrs Udompun said in evidence before Heath J that she is a housewife but that she also has a full time job selling food. She was unsure whether the interpreter at the airport had asked her what her job was and whether she had told Ms Mayne that she sold food. The interpreter, Mr Chansong, said that, although he did not remember the interview, he believed that the Thai word that he would have translated as housewife is a word that would not be apt to describe a woman with a full time job.
[38] Ms Mayne decided to recommend that Mrs Udompun be refused entry into New Zealand. Having considered Mrs Udompun’s answers and Mr Daly’s memorandum (to which she had access), Ms Mayne formed the view that Mrs Udompun’s account of her family income was inconsistent with her having purchased three airline tickets in a relatively short time. She did not disbelieve Mrs Udompun’s assertion that she had come to visit relatives but thought that could not have been the only reason as, according to the notes of the Christchurch interview, Mrs Udompun had not been going to visit her cousin on the last occasion. Ms Mayne suspected that Mrs Udompun was coming to work in New Zealand. She said that no one type of work had been uppermost in her mind as, in her experience, Thai nationals had been found doing a variety of jobs from construction to fruit picking to sweat shops and prostitution.
[39] Ms Mayne acknowledged that, had Mrs Udompun not been refused entry to Christchurch in 1999, she would probably have issued a permit but that she would have monitored her decision to check to see if Mrs Udompun had departed on 6 October as she said she was going to.
[40] Ms Mayne’s recommendation to deny entry was accepted by her supervisor. Ms Mayne said that she explained the reasons for the decision to Mrs Udompun, although Mrs Udompun’s evidence was that she did not. Mrs Udompun also denied in evidence that the interpreter had translated the questions and answers on the record of the interview before she signed it. She said that she was told to sign it and that she had done so. The interpreter, Mr Chansong, said in his affidavit that his standard practice is to translate all the decisions and information given by the Immigration Service officer as well as any questions or comments that the person interviewed would have. He would then translate the notes of interview, including each question and the answers that had been recorded before the person signed them. He did not believe that he had departed from this practice in interpreting Mrs Udompun’s interview.
[41] As the next available return flight to Thailand was 1.45 pm on 22 September, the police were requested to detain Mrs Udompun under s 128 of the Immigration Act 1987 in the interim. Mrs Udompun was received into the custody of the airport police, along with four other Thai nationals, at about 7 pm on 20 September. Mrs Udompun, in her evidence, referred to at least some of the other detainees as Laotian but this was not put to the police officers or Ms Mayne.
[42] Ms Mayne said that the normal practice would be to take the interpreter with her when handing the detainees over to the police and to explain to the police how long it had been since the detainees had landed so that the police were aware of when they would need food. She had no specific recollection whether that standard procedure had been followed in this case.
[43] The police officers, who had processed all of the detainees including Mrs Udompun, gave evidence as to their dealings with those detainees. Constable Simms said in his affidavit that he had explained to the group, through an English speaker in the group, that they were being detained for immigration reasons and had given each of them a form in Thai explaining their rights under BORA. The English version of this form is in Part A of the appendix to this judgment.
[44] In his evidence in Court, Constable Simms said that the standard practice with immigration detainees is to use an official interpreter for the BORA advice. He would ask the interpreter to tell detainees that, because they had been refused entry into New Zealand, they were to be given their “Bill of Rights”. He would then ask the interpreter to advise him of any questions the detainees had. Once the interpreter had confirmed that a particular detainee understood the form he would ask the detainee, through the interpreter, to sign the form. He would then witness the signature. His evidence was that he would always make sure that he stayed close to the interpreter during the BORA process and that it was a one on one situation, even if they were processing a large group, in case there were any questions. He confirmed that his signature and identification number were on the BORA form signed by Mrs Udompun but agreed that he had no specific recollection of her.
[45] Constable Simms said that there was also a charge sheet filled in for Mrs Udompun with her departure flights and other basic details, including her date of birth. The sheet recorded her belongings, such as jewellery, cash, handbags and luggage, which were retained by the police for safe keeping. For the security of the detainees and to ensure that no items are mislaid, detainees are allowed no personal items in the cells. Constable Simms said that he would have used the person in the group who spoke the best English to assist with explaining about the detention and the safekeeping of the property. This was because that person would already have established a rapport with the group. This process would occur after the official interpreter had finished with the BORA advice. Constable Simms said that he would, however, have obtained the information for the charge sheet from the detainee through the interpreter and that he would have explained the form to her, again through the interpreter. Mrs Udompun did not sign the charge sheet and a notation on the form said that she could not write. Constable Simms assumed that this had been put on the form because Mrs Udompun did not speak English.
[46] The interpreter, Mr Chansong, confirmed in his affidavit that he was on duty at Auckland Airport at the requisite time. Apart from recollecting that Mrs Udompun had been refused entry, he had no specific recollection of what passed between himself and Mrs Udompun. He set out his usual practice in immigration matters ‑ see [40] above. Mr Chansong did not, however, refer specifically in his affidavit to any role he may have had at the time of Mrs Udompun’s detention. Nor did he give specific evidence of his usual practice with regard to the BORA form. Mr Chansong was not cross-examined at trial.
[47] Constable van de Ven was also on duty. He had a specific recollection of Mrs Udompun. He recalled Mrs Udompun because “the shift was a strange one”, there having been quite a serious altercation with a mentally ill person at the commencement of the shift. After taking that person to Middlemore Hospital, the Constable started processing the Thai detainees. They had been brought over by Ms Mayne, accompanied as far as he could recall, by the interpreter, Mr Chansong. Incidentally, Constable van de Ven had noticed that four of the detainees were in a group with an older woman in charge. Mrs Udompun was not part of that group and he had heard the older woman speaking harshly to her. The Constable may have been mistaken in this impression, however, as Mrs Udompun gave no evidence of having difficulties with any of her fellow detainees.
[48] As the judge accepted Constable van de Ven’s version of what happened, it is worth setting out exactly what Constable van de Ven said in evidence about the processing of Mrs Udompun. We have adapted the quotation to remove abbreviations:
Did you personally process Ms Udompun…from the charge sheet which I viewed a copy of in last few days I filled out Ms Udompuns record of her property, filled out charge sheet, Constable Simms ticked off as property being correct and signed for money as being correct so I signed charge sheet so in fact yes, I did 90% of the processing of Ms Udompun.
At the time of processing did you have that Thai interpreter with you…as far as I recall no I didn’t.
Can you recall the Thai interpreter being present when that Constable Simms came to assist as well…Constable Simms and I were in same charge room together and one would do one process and then the other would carry on process to try to make it flow more but I cannot recall what Constable Simms did.
Are you saying you cannot recall whether or not the interpreter was with Constable Simms…no I can’t.
COURT: when you finished dealing with charge sheet was the Bill of Rights advice attached to it….I would have made sure that the Bill of Rights would have been completed because we needed the charge sheet, the Bill of Rights, the letter from Immigration, s128 detaining to put together to the give to watchhouse keeper to create a file.
COURT: It may be you can’t remember but do you remember whether those documents were all together when you finished dealing with processing of Ms Udompun…they would have had to have been finished together at that time.
[49] As to the treatment of the detainees generally, Constable van de Ven said that he gave Mrs Udompun a cup of coffee and access to a telephone. Constable Simms said that it was not possible to provide access to shower facilities at the airport and he had not arranged food for the detainees as, at that time, it was not possible to do so after 7 pm, but he knew food would be available at the police station. Constable Eltham, who had come on duty at the airport 13 minutes before the transfer, said that they had now changed their supplier from the Air New Zealand cafeteria to McDonalds so food is now available after 7 pm for detainees.
[50] Mrs Udompun’s evidence was that she did not read the BORA form because she was unwell with a headache, that she did not think it was explained to her by the Thai interpreter, Mr Chansong, and that she had signed the form simply because he told her to do so. She thought that Ms Mayne was there at that point as well. After she signed the form it was taken away from her, so she did not retain a copy.
[51] As to her treatment while in custody at the airport, Mrs Udompun said that she had been taken with the others to a locked room. They were not offered any food and the only drinking water in the room was from the tap of the wash basin in the adjoining toilet. She had asked, via sign language, for a towel from her luggage because she was cold. This had been given to her but she had been given nothing else from her luggage. She had also earlier requested and been given headache medication by the interpreter.
[52] Mrs Udompun was suffering at the time from a heavy menstrual period, which had started unexpectedly on the aeroplane between Australia and New Zealand. She had no sanitary pads with her on the aeroplane or in her checked luggage but had not asked the Thai hostesses for sanitary pads because she had used toilet tissue. She expected her cousin to be at the airport with pads. Mrs Udompun had asked a woman locked in with her in the room at the airport, who could speak Thai and English, if she had sanitary pads but she did not. Mrs Udompun said that she did not ask the police or the officials for pads because she was still expecting her cousin to arrive. She had rung her cousin, both on the interpreter’s cell phone before her interview and later with a calling card lent to her by one of the “Laotian” passengers. She had asked her cousin to bring her sanitary pads because she was bleeding heavily.
[53] Mrs Udompun’s cousin, Mrs Emmett, said that she had, while at the airport, spoken to Ms Mayne on the telephone and explained that Mrs Udompun had her period and was not feeling well. She had asked her husband to speak to Ms Mayne also, as she was unsure whether she had been understood. Her husband, Mr Emmett, gave evidence that he had told an immigration officer that Mrs Udompun was unwell and had her period. He acknowledged in evidence that he had not conveyed to the officer that Mrs Udompun had no sanitary pads, but he had said that she needed taking care of and he had assumed that the officer would know what to do. He thought he had spoken to Ms Mayne (or a similar name) because he had spoken to a person identifying herself by that (or a similar) name earlier and the voice seemed to him to be the same.
[54] Ms Mayne did not recollect the telephone call or receiving any requests from anyone in relation to sanitary pads or medication for Mrs Udompun. Had she received such a request, she believes she would have recorded it and, in any event, she would have responded accordingly. The evidence of the airport police officers was that at no time had any of the detainees made any request for medication or sanitary pads.
[55] The Judge made several findings of fact in relation to Mrs Udompun’s time at the airport. In particular, he found that Mrs Udompun was not provided with sanitary pads but that, on the balance of probabilities, the request for sanitary pads was not conveyed to Ms Mayne or any other officer at the airport. He also found that no request for a change of clothes had been made. The provision of the other items (ie the towel and the headache medication) on request suggested, however, that, had a request for clothes been made, it would likely have been granted.
Events at Papakura Police Station
[56] Mrs Udompun was transported to Papakura Police Station around 11 pm on 20 September. The airport police agreed that no special mention had been made to the station police that Mrs Udompun did not speak English. Constable Eltham said in evidence, however, that it was commonsense that a number of the detainees would not speak English and that therefore no special mention of that fact was necessary.
[57] At the police station Mrs Udompun was placed in an individual three metre by two metre cell that has a built in concrete bed with a covered mattress top. There is a toilet and basin within the cell. There is a window in the door and the lights are kept on at night.
[58] Sergeant Griffin, who was custody Sergeant at Papakura police station when Mrs Udompun arrived at the station on 20 September, said that she had asked one of the female detainees, Ms Kanakakorn, who spoke both Thai and English, to act as interpreter for the group. She had the impression that Ms Kanakakorn spoke good English and that she seemed very friendly with the other female detainees.
[59] It is not normal practice for professional interpreters to be provided to immigration detainees. There is no policy of using female officers to look after female detainees. Custody sergeants have to use the staff they are given. There are also no notices or verbal briefings given to detainees as to the availability of showering facilities or to procedures to follow if detainees had particular needs. Sergeant Griffin acknowledged that, once detainees were processed, officers were reliant on detainees to raise concerns. She said that showers were available upon request only but, if detainees were in the cells for more than two nights, they would, if possible, be offered a shower before they left. Mrs Udompun was not offered a shower. If she had been given a shower and her clothing had been bloodied, the police could have arranged a special suit for her to wear temporarily and for her property to come from the airport so that she could have changed her clothes.
[60] Sergeant Griffin said that, before the detainees were taken to their cells, she had asked the group, through Ms Kanakakorn, if they had any questions. There then “seemed to be a lot of discussion as they were speaking in what we assumed was Thai and quite fast”. One person had then asked, through Ms Kanakakorn, when they were to be returned to Thailand but no one else had asked any questions. The conversation would, however, have lasted five minutes at most. She said that, once inmates were taken to the cells, they could still have communicated (with raised voices) between their cells.
[61] Sergeant Griffin also said that she had asked a male immigration prisoner if they had been fed at the airport and if he was hungry. She had taken his (sign language) response as being that they had not been fed and she had therefore arranged for some noodles to be provided to the group at about 11.40 pm. Mrs Udompun said that she had not been able to eat the noodles as they were foreign ones and her staple diet in Thailand is rice. Sergeant Griffin also arranged for cereal, a muesli bar and fruit juice to be provided the following morning. She did not recall Mrs Udompun making any objection to the food provided.
[62] It is not recorded in the evidence what was provided for lunch on 21 September during the next custody sergeant’s, Sergeant Bailey, tour of duty. Sergeant Beattie, who was custody sergeant for the evening of 21 September, said that Mrs Udompun had been offered an evening meal of noodles and fish, which she had refused to eat. There was evidence from Sergeant Mansill, who was custody sergeant for the night of 21 September, that the noodles and fish meals were special ones provided for (mainly Thai) detainees as the police realised that they had different dietary requirements.
[63] It is standard practice for detainees to be checked at regular intervals through the cell window (which is the reason the lights are left on). With immigration detainees, police would usually open the door to check if the detainee was breathing. Sergeant Griffin said that, when they went to feed the detainees after their arrival, they asked them in sign language if they were okay. All of the detainees nodded and no one seemed “outrightly distressed”. The evidence was that even detainees who did not speak English usually managed to communicate through sign language and that nothing untoward about Mrs Udompun had been noticed by any of the police officers during her stay at the station. Heath J accepted the evidence of the officers on duty that they did not regard immigration detainees as criminals and endeavoured to make their stay as comfortable as possible.
[64] Turning now to Mrs Udompun’s version of events at the police station, her evidence was that, by the time she was taken to the police station, she was very uncomfortable because she had not washed for almost two days and the insides of her legs were sticky and uncomfortable from her bleeding. There were also stains on her outer clothes and blood right through her underwear. Her situation was made worse by the fact that she was feeling unwell and hungry and thirsty as her last meal had been on the aeroplane before landing.
[65] She said that she had had no opportunity at the police station to ask the female detainee, Ms Kanakakorn, to request sanitary products for her as they were immediately taken to separate cells. She had been unable to speak to Ms Kanakakorn after they had been taken to the cells as it was dark and the following morning Ms Kanakakorn had gone home. Mrs Udompun denied that Sergeant Griffin had asked, through Ms Kanakakorn, if the detainees had any questions for the police. She said that the police had made use of a male prisoner to translate what they said and she was embarrassed at the thought of approaching a male stranger about her period. There was evidence from a former Thai trade consul, now living in New Zealand with her English husband, that Thai women are brought up to be modest about their bodily functions and that it would be unthinkable to talk about such functions to a male stranger.
[66] Mrs Udompun was asked why she had not tried to explain to the female police officers on duty by sign language about her period. She said that there was only a little door in the cell. They had checked on her but they had never come in. Mrs Udompun acknowledged, however, that she had been given two tablets for her headache while she was at the police station. She said that she had been frantic and she got up and knocked on the door and they had given her two tablets. She could not remember whether it was a woman or a man who had given her the tablets.
[67] Mrs Udompun had said in her affidavit that her period had become very heavy by the time she was at the police station and that she had had to use a sheet in her cell to put in with the toilet paper she had been employing up to then in lieu of a sanitary pad. Sergeant Griffin’s evidence was that there are no sheets in the police cells but only blankets and that any damage to the blanket would have been noticed when they were cleaning out the cell but that no such damage had been reported. Mrs Udompun, when she was giving evidence in court, said that she had used a blanket in her cell. It appears that the word for sheet and blanket are the same in Thai. She said that she had ripped part of the blanket off, which had been easy to do. We apprehend that she may have meant that she pulled a layer off the underside of the blanket rather than ripping a whole piece out of it. If so, this would have made the damage less noticeable. Despite her make-shift pad, Mrs Udompun said that by the morning she was so self-conscious of her smell that she feared getting close to the police officers or anybody else.
[68] There was evidence that Mrs Udompun’s cousin and her husband had tried to bring Thai food and sanitary products to her at the police station on the morning of 21 September (and later in that day also) but the police had declined to take these to her. When the couple had come in the morning they had seen a civilian who worked at the police station, Mr Williamson. Mr Williamson confirmed in evidence that this was the case. He said that he had explained to them that he was not allowed to take anything to detainees. He had then left the counter to tell the custody sergeant that they wished to give sanitary products to Mrs Udompun. After speaking to the custody sergeant, he had confirmed to the couple that these items could not be passed on but said that the police held stores of such items and that they would be provided upon request. Mr Williamson then arranged for the couple to see Mrs Udompun. The visit took place in a secure interview room with Mrs Udompun behind a glass panel.
[69] The Judge was satisfied that Mr Williamson had communicated Mrs Udompun’s need to Duty Sergeant Bailey and that sanitary products are kept by the police for such purposes. Sergeant Bailey’s evidence was that it was standard practice that no items brought by visitors could be given to detainees, apart from a change of clothing after that clothing had been checked. The old clothing then would be taken away. He could not recall the request from Mr Williamson but said that, if Mr Williamson said he had passed the request on, he would not take issue with that. He said that, if a visitor came in to the watchhouse with those products, he would normally have ensured that his staff delivered some to that prisoner from their store. He could offer no explanation for the failure to provide the sanitary materials in this case, but he had agreed earlier that the watchhouse is a very busy environment.
[70] We note that Mrs Udompun accepts that the police were entitled to refuse to give her the sanitary products brought by her cousin. The complaint is rather directed at the fact that the police did not supply her with the products.
Subsequent events
[71] Ultimately, Mrs Udompun was not returned to Thailand on 22 September as Mrs Udompun’s relatives contacted a solicitor and proceedings were filed leading to a judicial conference, which resulted in Mrs Udompun being issued with a temporary permit. She stayed in New Zealand for almost a year, even though her aunt had gone back after a month. She said that she had extended her visa so as to deal with this case.
Issues for the appeal
[72] The issues which are raised by the appeal are:
(a)Was there a breach of s 27(1) of BORA at Christchurch Airport?
(b)Was there a breach of s 23(1) of BORA by the Airport Police at Auckland Airport?
(c)Can the standards of administration applied to Mrs Udompun during her detention in Auckland be characterised as contrary to the standard of treatment which one would expect having regard to the guarantees contained in s 23(5) of BORA?
(d)What is the appropriate measure of compensation?
(e)Was it appropriate to award interest and indemnity costs?
Section 27(1) of BORA
Heath J’s judgment
[73] Heath J concluded that the principles of natural justice did apply in the immigration context. This requires an immigration officer to ask proposed entrants relevant questions so that they have an opportunity to provide further information. Decisions to grant or refuse permits can then be made on the basis of that information. Heath J held that the natural justice obligation cannot be fulfilled if there is an inadequate interpretation of the question posed in English to an entrant who does not speak English, as a person who cannot speak English cannot respond to a question unless it is translated accurately. In his view, s 27(1) of BORA must, as a minimum, require proper interpretation of questions put by immigration officers so that an appropriate response can be given.
[74] The Judge accepted Mr Daly’s evidence that Ms Kumsastra spoke English sufficiently well to enable her to communicate with him, but concluded that there was no basis on which he could rely on Ms Kumsastra to speak for Mrs Udompun. In his view it is fundamental that a person needs to understand a question before giving an adequate response, and Mr Daly had no objective basis on which to be satisfied that Ms Kumsastra was accurately translating the questions and answers. The Judge also drew on the principles of agency to conclude that there must be evidence to establish the authority of the agent before that agent could speak for another.
[75] Heath J found that Mr Daly’s view that the five Thais were a group was reasonable, although he noted that Mr Daly took no steps to ascertain the correctness of this view. The Judge considered it significant that, in evidence, Mr Daly accepted that, although he would have remained suspicious about the genuineness of the visit, he would have made further inquiries before making a decision had he treated each member of the group as an individual. The Judge was satisfied that, had Mr and Mrs Udompun been interviewed separately with an appropriately qualified interpreter, Mr Daly would have learnt of the intention to travel to Auckland to see Mrs Udompun’s cousin and would have been able to verify that her cousin lived in New Zealand through the simple expedience of a telephone call.
Crown’s submissions
[76] Mr France accepted that natural justice principles apply at the border but submitted that the legislative scheme and, in particular, the lack of statutory reconsideration or appeal rights relating to temporary permits, indicate that the scope of natural justice should be limited. In his submission, the nature of the obligation will depend on the nature of permit sought, with those seeking a temporary permit the least onerous – see the comments in Chen v Minister of Immigration [1992] NZAR 261 (CA) about assessing what is fair depending on the circumstances of the case. See also Attorney-General v E [2000] 3 NZLR 257 (CA) at 261 and 262.
[77] Mr France submitted that the manner in which matters were handled in Christchurch did not breach natural justice. He accepted that a general duty of fairness applies to processes at the border but submitted that it cannot be a mandatory requirement to always have an interpreter available. The variety of languages and variations thereof would make this impossible. Mr France pointed out that it is not a requirement that an interpreter be provided by the State for civil proceedings where there is obviously a requirement of natural justice. In his submission, it is incumbent on persons seeking entry to a country to bring enough information, in the language of the country, to explain their situation.
[78] Mr France submitted that the key issue was whether it was a fair process to rely on a group approach. He noted six factors, independent of the information obtained from Ms Kumsastra, that, in his submission, provided the necessary objective basis for Mr Daly’s conclusion that Mrs Udompun was travelling as part of a group. The five arrived on the same plane, they all had their tickets issued by the same travel agency, each person had the same amount of money being $1,000 in $20 notes, the $20 notes were consecutively numbered, the sum total of the luggage was three carry on bags and each bag had the same unusual contents. Mr France noted that Mrs Udompun claimed in her evidence to have another bag, but this was not seen by anyone or found on the carousel.
[79] In addition, once one moves to what Ms Kumsastra said, the answer is either that they were a group, or, for some unexplained reason, Ms Kumsastra not only misled Mr Daly about herself but also decided to implicate the other four who in fact had absolutely nothing to do with her. As indicated above, she told Mr Daly that they were a group of successful “Nu Life” salespeople who had won the trip, that they had come to walk the Milford Track, that they had accommodation booked for two nights in Christchurch but nothing else, that they were going to rent a car but no one had a licence, and that they were all business people.
[80] Overall, Mr France submitted that it was fair for Mr Daly to rely on Ms Kumsastra as group spokesperson. She had good English, there were reasonable signs that the people were a group and everything else confirmed not only that they were a group, but that their story was dubious. Mr France accepted the Judge’s point that Mr Daly felt uneasy about not knowing what was exchanged between Ms Kumsastra and the group, but submitted that this factor could not override all the other indicia. Mr Daly’s unease about being unable to know what was being said between Ms Kumsastra and the group, on which His Honour placed weight, is, in any event, understandable. When tasked with border security, no officer would like a conversation between a group of “suspects” being followed by a short answer. However, there is no reason to suppose from that pattern that the short answer was misrepresentative of the group’s discussion. It could just as easily have been their agreed response.
[81] Mr France acknowledged that an individual assessment of each person would have been ideal but submitted that its absence was not unfair. In his submission, Mr Daly’s concession that he would have taken a different approach had he considered the group to be five individuals does not speak to the fairness of the process he did in fact adopt. In any event, Mrs Udompun’s actual story would still have seemed implausible. Mrs Udompun did have a cousin in Auckland but the cousin would, on Mrs Udompun’s story, have known nothing of her visit.
Mrs Udompun’s submissions
[82] Mrs Woodroffe submitted that natural justice was breached as Mrs Udompun should have been treated as an individual and questioned and listened to as an individual before Mr Daly made his decision. Mr Daly had a duty to confirm his impression that the Thais were travelling as a group before operating on that assumption. This breach was not avoided by the interpretative assistance of Ms Kumsastra, as this was inadequate. Mrs Woodroffe supported the Judge’s conclusion that natural justice requires that a qualified interpreter to be available to allow non-English speakers, such as Mrs Udompun, to be questioned directly and to provide their own answers to questions.
[83] Mrs Woodroffe drew support for this argument by referring to art 14(3) of the International Covenant on Civil and Political Rights (‘ICCPR’) which provides inter alia for a person charged with an offence to be “informed promptly and in detail in a language which he understands of the nature and cause of the charge against him” and to have “the free assistance of an interpreter if he cannot understand or speak the language used in Court”. She noted that the latter guarantee is repeated in s 24(g) of BORA. Mrs Woodroffe emphasised that the fact that the breach was unintentional and that Mr Daly was honest is irrelevant to the breach.
[84] Mrs Woodroffe supported the Judge’s conclusions that the scope of natural justice should be considered by reference to the consequences of an adverse decision. In this regard, she pointed to Mr Daly’s concession that, had he viewed the group as individuals, he would have engaged an independent interpreter and interviewed each person separately. Mrs Woodroffe also suggested that Mr Daly chose not to get an independent interpreter because he thought that the individuals were in fact a group. She contended that this contradicted his evidence that he tried to call the Thai embassy to enquire about an interpreter but there was no answer. She said that, even had the airport had an interpreter, there is nothing in Mr Daly’s evidence to show that he intended to speak to Mrs Udompun individually anyway. She also emphasised that the factors on which Mr Daly relied were not put to Mrs Udompun prior to his decision.
[85] In terms of the factors Mr Daly took account of that were independent of his conversation with Ms Kumsastra, Mrs Woodroffe noted that Mrs Udompun disputed the fact that each person had $1000 in $20 bills. She pointed out that there was no evidence that those notes were numbered consecutively other than Mr Daly’s word and that he had made a mistake in his evidence as to the passports being consecutively numbered. Had Mr Daly enquired, she submitted that he might have found the fact that there were only three bags between five people was explicable by the fact that there were two couples in the group. In any event, Mrs Udompun gave evidence that she had more than one bag. Mrs Woodroffe also submitted that Mr Daly’s evidence of the contents of the bags must be unreliable as it is so far fetched. She submitted that Mr Daly was either mistaken or he fabricated the evidence.
[86] Mrs Woodroffe also pointed out that since Ms Kumsastra was not called, the accuracy of Mr Daly’s evidence could not be tested. She contended that Mr Daly may have been confused in his evidence about being told the five were part of a “Nu Life” group on account of having dealt with such a group shortly before dealing with the group in question. Mrs Woodroffe also submitted that Mrs Udompun’s travel plans may have been naive but Mrs Udompun cannot be judged as a sophisticated traveller would be. Her genuineness cannot be judged in light of those plans.
Discussion
[87] The Crown accepted that immigration officials are subject, pursuant to s 27(1) of BORA, to a natural justice requirement when making decisions about the grant of permits at the border. There may be an argument that, even though immigration officials are subject to a natural justice requirement, it does not derive directly from s 27(1) of BORA. This will depend on whether BORA has extra-territorial effect, given that Mrs Udompun was, at the relevant time, undergoing immigration processing and had not been admitted to New Zealand - see R (on the application of Al Skeini & Ors) v Secretary of State for Defence [2004] EWHC 2911 (Admin) for a discussion on the extra-territorial application of the Human Rights Act 1998 in the United Kingdom. As the Crown did not take this point, however, we make no further comment on it.
[88] Turning then to Heath J’s judgment, his first proposition was that the requirement for natural justice cannot be met unless a properly qualified, independent interpreter is provided for those travellers who do not speak English. The problem is that this principle admits to no exceptions, no matter how administratively difficult it is to provide such a service, no matter what language is spoken by a traveller and no matter how rarely speakers of that language visit New Zealand. It is possible that these difficulties could be controlled by a reasonableness requirement - for example, that interpreters would only be required for widely spoken languages. But, once a reasonableness exception is admitted, it can be applied to this situation where the flight landed on a holiday weekend in an international airport that is by world standards small, where the language involved is far from the world’s most widely spoken and where the immediate departure point of the flight had been Singapore and not Thailand.
[89] Having said this, we agree with Heath J that, as a general rule, the requirements of fairness cannot be met if a person does not understand the questions put to them and therefore does not have a fair opportunity to answer. Ideally, non English-speaking travellers should have with them sufficient material in English to explain their presence in New Zealand. The absence of such material could legitimately raise concerns on the part of immigration officials (as it did in Mr Daly’s mind). Where questions are to be asked, however, some means of communication must be found. We do not accept the Crown submission that travellers, who have brought with them adequate explanatory material, should be required also to provide interpreters to answer any questions officials may have arising out of such material. There would clearly be practical difficulties with this and, unlike parties in civil proceedings, travellers would have no way of anticipating whether or not they would have to answer questions.
[90] It is not desirable in this area to lay down rigid rules as to what the natural justice obligation requires of immigration officials, as each case must be determined having regard to all the circumstances – see Chen v Minister of Immigration at 267. It is to be noted that relative simplicity and swiftness, of necessity, characterise the procedures for refusal of entry at the border – see Attorney-General v E at 261 and 262. This means that any standards cannot be too stringent.
[91] Ideally, even in the case of tour groups, each traveller would be questioned individually and be given the opportunity to explain his or her position. Particularly where large groups are concerned, this would not be consistent with efficient processing of travellers. Such an approach is not therefore required. Where entry is to be refused to a group, however, individual travellers in the group should normally be given an opportunity to explain the extent to which their individual circumstances differ from the other members of that group. This does not mean that individuals necessarily have to be questioned individually. An opportunity to explain individual circumstances can be provided in other ways.
[92] The issue, therefore, is whether the approach taken by Mr Daly met these requirements. Taking the indicia relied on by Mr Daly – the fact the five arrived together, the small amount of luggage between them, the identical contents of their bags, the tickets purchased from the same travel agency and in particular the fact that they each possessed $1,000 in consecutively numbered banknotes - we agree with the Judge that it was entirely reasonable for Mr Daly to assume that the five were travelling in a group.
[93] We remark that the indicia relied on by Mr Daly were reinforced by Ms Kumsastra agreeing to act as spokesperson and her confirmation that the five were in a group. There appears to have been nothing to indicate to Mr Daly that he should doubt Ms Kumsastra’s information on this point. Mrs Woodroffe submitted that Mr Daly may have been mistaken about or have fabricated evidence relating to the luggage and the currency. We are in no position to entertain this proposition and Heath J, who heard and saw the witnesses, made no such findings. Indeed, he was satisfied that Mr Daly gave evidence honestly and to the best of his recollection and that he acted in good faith.
[94] Mr Daly was thus confronted with what he reasonably considered was a group of five persons travelling together, only one of whom spoke English. The airport interpreter was on vacation and Mr Daly’s efforts to find someone else to act as interpreter by telephoning the Thai Embassy were to no avail. We cannot entertain Mrs Woodroffe’s assertion that Mr Daly did not telephone the Embassy as the Judge made a positive finding that he had done so. The consequence of requiring an independent interpreter to have been provided to Mrs Udompun would have been her detention in Christchurch Police Station until such an interpreter could be found. It is understandable that immigration officials would wish to avoid detaining travellers if this were possible.
[95] In the circumstances, therefore, we consider it reasonable for Mr Daly to have decided to rely on Ms Kumsastra as spokesperson and interpreter for the group. Although Mrs Udompun challenged Ms Kumsastra’s ability to speak English at trial, the Judge was satisfied that her English was good. In our view also, when Mr Daly made his decision to use Ms Kumsastra as interpreter, there was no reason for him to think that Ms Kumsastra would be any less accurate in conveying information about Mrs Udompun than information about herself.
[96] We do not consider that anything arising during the interview changed this position. There was a conflict between Mrs Udompun’s evidence and that of Mr Daly about the course of the interview. Mr Daly’s evidence was that each time Ms Kumsastra was asked a question there was discussion in Thai among the members of the group, followed by an answer given by Ms Kumsastra in English. Ms Udompun said that Mr Daly and Ms Kumsastra were talking together, that she did not know what they were talking about and that she took no part in the discussions.
[97] Heath J appears to have accepted Mr Daly’s evidence that there was discussion in Thai between Ms Kumsastra and the other members of the group. In our view, it follows that Mr Daly reasonably took the view that Mrs Udompun was, by dint of the discussions in Thai between Ms Kumsastra and the others in the group, accorded adequate means by which to understand Mr Daly’s questions and an adequate channel to convey her answers. The agency analogy employed by the Judge is, in our view, ill-suited to a field of law in which what is adequate must be determined by a circumstantial inquiry, not a rigid set of rules.
[98] Heath J placed great weight on the fact that Mr Daly was concerned that the responses given by Ms Kumsastra did not reflect the views of the individuals involved. We would not do so. On our reading of Mr Daly’s evidence, his concern in this regard was that he was being given an incomplete translation of the discussion within the group and was thus being deprived of material potentially unfavourable to the group. This is shown by his evidence that, had he known the five were not travelling in a group, he would have interviewed them separately to avoid collusion – see [23] above.
[99] Mr Daly appears to have considered that the answers he was being given were the collective (if incomplete) agreed answers of the group – see [15]-[16] above. This was not an unreasonable conclusion in our view. There is no obvious reason why Ms Kumsastra would not have conveyed Mrs Udompun’s individual circumstances to Mr Daly if she had been asked by Mrs Udompun to do so. Indeed, there is no assertion that Mrs Udompun tried, through Ms Kumsastra, to explain her travel plans to Mr Daly and that these were not passed on by Ms Kumsastra.
[100] We also accept the Crown’s submission that, even had an interpreter been available, Mrs Udompun’s story would likely (and legitimately) not have allayed Mr Daly’s suspicions as to her bona fides, given the nature of her travel plans, the lack of material in English (or Thai for that matter) explaining those plans, the fact that her cousin knew nothing of her arrival and the things tying her and her husband to the other three Thais, such as the consecutive numbering of the bank notes and the common unusual baggage contents.
[101] In terms of her travel plans and her cousin’s ignorance of her arrival, Mrs Udompun’s evidence was that she wanted to surprise her cousin with her cleverness in getting to Auckland. We remark that it would indeed have been a feat for Mr and Mrs Udompun to get into Christchurch from the airport and then to the station onto a train and thence to Auckland. Mrs Udompun had no English and Mr Udompun only a limited understanding of but no ability to speak English. We note too that it was not only a question of a different language but also a different script.
[102] As to the matters tying her to her fellow travellers, there is room for scepticism about the coincidence Mrs Udompun asserts of the other three by chance not only going to the same travel agency far away from where they lived and worked, but also going to the same bank, just after she and her husband had been in, so as to get consecutively numbered notes in exactly the same denomination of notes and total amount. This is especially the case as Mrs Udompun’s evidence was that she had had no conversation with any of the other three about going to New Zealand until they met at the airport. Nor did they, according to Mrs Udompun, speak very much at the bank when they met there and they did not say what currency they were exchanging.
Conclusion
[103] We do not consider that there was a breach of natural justice at Christchurch Airport. In any event, even if Mrs Udompun had been questioned individually through an independent interpreter, the outcome would in all likelihood have been the same.
Section 23(1) of BORA
Heath J’s judgment
[104] The next question was whether, at the time of her detention at Auckland Airport pursuant to s 128 of the Act, Mrs Udompun was informed of the reason for her detention and told that she had the right to consult and instruct a lawyer in private and without delay.
[105] Heath J held s 23(1) of BORA was breached due to the failure of the police to bring home to Mrs Udompun adequately the reasons for her detention and the rights afforded to detained persons under s 23. However, he did not elaborate on exactly why s 23(1)(a) was breached. Heath J did refer to Constable Simms’ evidence that he explained, through a member of the group who spoke English, that they were being detained for immigration reasons, and not on criminal charges. Presumably, he considered that the s 23(1)(a) breach arose, as had the s 27 breach at Christchurch Airport, from the lack of an interpreter and the problems associated with using a detainee as the group’s interpreter.
[106] The Judge accepted the Crown submission that the yardstick to be used in determining whether there was a s 23(1)(b) breach was that enunciated in R v Mallinson [1993] 1 NZLR 528 (CA). Heath J noted the weight the Crown placed on the BORA form that was written in Thai. In order to test its comprehensibility, he asked the Court interpreter to read the Thai form and to translate it in English to him in Court. He observed that it took the interpreter between 10 and 15 minutes to do so and that he produced a translation which was hardly in the clearest of terms. From this, Heath J deduced that the statement of rights contained in the form must have been in a complex and not readily understandable form. The translation given to the Judge is set out in Part B of the Appendix to this judgment. The English version of the form is set out in Part A.
[107] The Judge then went on to consider the key requirements of s 23(1)(b) as set out in Mallinson. From this, the Judge identified the purpose of that section as being to make a person aware of his or her right to consult a lawyer without delay and to provide a fair opportunity to consider and decide whether or not to exercise the right. He noted the obligation on the advisor to communicate clearly the right, which the Judge interpreted as connoting a requirement that the right be brought home to the person so that the person understands what is being conveyed. Finally, he observed that more than a bare statement of the right and a bare acknowledgement is likely to be required where a person has a condition that could interfere with his or her comprehension of his or her rights.
[108] The Judge considered that Mrs Udompun’s case called for obvious care, considering her inability to speak English and reliance on an interpreter, the foreign nature of New Zealand’s legal system to her and her exhaustion after a long flight and several further hours of waiting time. She also had a headache which officers would have been aware of as she asked for and received medication for this purpose.
[109] The Judge then proceeded to consider the evidence with regards to Mrs Udompun’s understanding of her rights. He began by putting aside Mrs Udompun’s own evidence that she had never been informed of her right to consult a lawyer as unreliable due to her tiredness and headache. He then considered Constable Simms’ evidence. The Judge noted, however, the Constable’s admission that he had no specific recollection of Mrs Udompun and that the evidence he gave was limited to what he was able to reconstruct from the documentation prepared in his presence. Turning to the interpreter’s (Mr Chansong’s) evidence, the Judge noted that the interpreter could not recall what he said to Mrs Udompun. The Judge then considered Constable van de Ven’s evidence. As indicated above, Constable van de Ven’s evidence was that he did 90% of the processing of Mrs Udompun, with Constable Simms dealing with the balance. Importantly, he did not recall having a Thai interpreter available at the time of processing.
[110] The Judge said that he preferred the evidence of Constable van de Ven, whose recollection appeared strongest. The Judge reasoned that the fact that Constable Van de Ven, whose memory was good in all other respects, could not recall a Thai interpreter being available at the time of processing tended to suggest that Mr Chansong’s involvement may have been brief and that it was likely to have occurred during the completion of Mrs Udompun’s processing. The combination of this and the Judge’s view about the difficulty of the language in the Thai form led him to conclude that there had been a breach of s 23(1)(b).
Crown’s submissions
[111] Mr France, for the Crown, accepted that, following Mallinson, the salient question was whether Mrs Udompun understood her rights. Accepting this as a question of fact, Mr France urged that weight had to be given to the fact that Mrs Udompun was given a form explaining her rights in Thai and that she signed an acknowledgement of those rights.
[112] In this regard, Mr France objected to the Judge’s use of the Court interpreter. First, the use of the interpreter was procedurally incorrect. The interpreter was not a witness. Further, no questions were directed to the interpreter about the form, its complexity, her experience or any other matter. No objection was taken at the time because it was not appreciated that the Judge would seek to use this exercise in the manner in which he did. Secondly, in logic, translating a document orally from Thai to English in court is very different from a Thai person reading a Thai document. How long it took a person to translate the document into another language is a different question from whether the document adequately conveyed, in Thai to a Thai speaker, the s 23(1)(b) rights. Mr France pointed out that, in any event, Mrs Udompun did not assert that she did not understand the form. Rather her evidence was that she did not bother to read it.
[113] Mr France also challenged the Judge’s conclusion that the interpreter was only there briefly and not at the relevant time. Mr France submitted that this conclusion is unsupported by the evidence. He submitted that the Judge misinterpreted Constable van de Ven’s evidence (which is set out at [48] above). The critical passage of the Constable’s evidence noted by the Judge was the Constable’s statement that he “cannot recall a Thai interpreter being available at the time”. This quote is the Judge’s interpretation of the Constable’s evidence, rather than a direct quote of a statement made by the Constable. The Constable was asked whether, at the time of processing, he had a Thai interpreter with him. His answer was “As far as I recall no I didn’t”. He was then asked whether he could recall the Thai interpreter being present when Constable Simms came to assist. The Constable answered that he and Constable Simms were working in the same room together, but “I cannot recall what Constable Simms did”. The next question was “are you saying you cannot recall whether or not the interpreter was with Constable Simms?” His answer was “No I can’t”.
[114] In Mr France’s submission, the proper interpretation of Constable van de Ven’s evidence is that the Constable could not recall whether an interpreter was with Constable Simms, rather than a positive suggestion that one was not present. He also emphasised that interpreting the Constable’s remark as meaning there was no interpreter is in contrast to the evidence of the other witnesses, in particular that of Constable Simms. Further, Mrs Udompun herself said that the interpreter had asked her to sign the form, which means the interpreter was at least present at the time she signed the form. In sum, Mr France contended that the proposition that the interpreter was not there or only there briefly is contrary to all the other available evidence.
Mrs Udompun’s submissions
[115] Addressing the Crown’s challenge to the appropriateness of the Judge’s use of the court interpreter, Mrs Woodroffe submitted that the interpreter was not used as an expert witness but rather in the nature of an officer of the court performing a function to enable the Judge to make an informed decision. The Judge assessed how long it took a trained interpreter to make sense of the contents of the form. The Judge did not need to question the interpreter because he was not seeking an opinion. Rather he was simply gauging the simplicity of the form from his own observation of the interpreter’s performance. The role of an interpreter, she argued, is wider than assisting a witness with language difficulties, but properly encompasses more general assistance to the court.
[116] In terms of the Crown’s submission that the requirement to be informed of the right to counsel was adequately met, Mrs Woodroffe supported the Judge’s finding that the police failed to bring home to Mrs Udompun the reasons for her detention and the rights afforded. She also supported the Judge’s inference that, if Constable van de Ven, who said he had done 90% of the processing of Mrs Udompun, did not recall having a Thai interpreter available at the time of processing, then it is probable that Mrs Udompun was not told of her rights at the time of being detained and before she was processed. The issue was not, in any event, whether an interpreter was present. The issue was the function that the interpreter performed or did not perform.
[117] Mrs Woodroffe emphasised the Mallinson requirement that a detainee have an actual understanding of the rights. In her submission, the fact that the interpreter was present was not enough. She noted that none of the witnesses who gave evidence about general practice in situations such as Mrs Udompun’s expressly stated that Mrs Udompun’s rights were explained to her in a language that she understood and that she had acknowledged that she understood the rights.
Discussion
[118] We deal first with s 23(1)(a) of BORA and the finding that Mrs Udompun was not informed of the reasons for her detention. Heath J appears to have accepted that Constable Simms told the group through an English speaking member of the group that they were being detained for immigration reasons. It would obviously have been preferable to use the official interpreter (and Constable Simms said in evidence (see [44] above) that he would normally have used the official interpreter for BORA advice). However, there is no suggestion that the fellow detainee was not capable of translating the advice. We consider that the reason for her detention was adequately brought home to her.
[119] Moving now to s 23(1)(b), the test set out by this Court in Mallinson requires effective communication to a detainee so that the detainee (subjectively) understands that he or she has a right to consult a lawyer without delay. It is, however, made clear that, where a person at the relevant time acknowledged an understanding of the right, there has to be an evidential basis (other than mere assertion of not understanding) put forward for an argument that a detainee did not in fact understand the right. If there is such an evidential basis, it is then for the Crown to prove understanding. To provide an evidential basis a detainee must point either to there not having been an objectively effective communication of the right, or to some special circumstance or characteristic (whether known to the police or not) that could have hindered understanding. This Court said at 531:
[174] When assessing the level of BORA compensation, Cooke P suggested in Baigent’s case at 667 that it is necessary to consider the gravity of the breach, the importance of the right involved and the deterrence of breaches. He also said that extravagant awards are to be avoided. A similar point was made extra-judicially by Lord Woolf in “The Human Rights Act 1998 and Remedies” in M Andenas and D Fairgrieve (eds) Judicial Review in International Perspective: Liber Amicorum in Honour of Lord Slynn of Hadley Volume II (Kluwer, 2000) 429 at 434, quoted in Damages and the Human Rights Act 1998 at para 4.31. We also refer to the comments of Richardson J on BORA remedies generally in Martin v Tauranga District Court [1995] 2 NZLR 419 at 428:
The choice of remedies should be directed to the values underlying the particular right. The remedy or remedies granted should be proportional to the particular breach and should have regard to other aspects of the public interest.
[175] In Mrs Udompun’s case the right, relating as it does to human dignity, is an important one. The breach in our view was also serious. Mr France suggested that it was not prolonged. Taking the timing from the point at which Sergeant Bailey was informed of her needs on the morning of 21 September (see at [68] above) until her release from the police station, Mrs Udompun was without sanitary products for some 23 hours (Mr France took his timing of 18 hours – see [138] above – from the afternoon of 21 September). Mrs Udompun’s evidence (apparently accepted by the Judge) was that her period was a heavy one, that blood was all through her underwear and that the smell was embarrassing. We have accepted Mrs Woodroffe’s submission that there are hygiene issues involved. In such a situation we are not able to agree that 23 hours is an insignificant time. We do, however, consider that Mrs Udompun must bear some responsibility for her predicament in that she did not source sanitary products before she was at the police station.
[176] We agree with Mr France that the normal incidents of detention would usually not be taken into account in assessing damages, although, given the different view of the facts taken by Heath J, we would not hold that he was wrong to have done so. We, do however, consider that Mrs Udompun’s detention, while lawful and justified, was as a result of inexperience and naivety on Mrs Udompun’s part in not applying for a visa before she came to Auckland. There is nothing to suggest that she is other than an exemplary citizen of Thailand and it appears likely, from the evidence of Mr Daly and Ms Mayne, that she would have been granted a visa had she applied for one before coming to New Zealand. In this sense, Mrs Udompun’s imprisonment did not result from her wrongful actions. It may be the case that the reason a person came to be detained will, in other circumstances, have some relevance to the appropriate level of damages. In this case it does not.
[177] Mr France urged upon us the view that damages should take into account the fact that the breach was inadvertent. There will be many cases where the deliberate nature of a breach exacerbates the effect of the breach on the victim. In this case, however, the effect on Mrs Udompun of the breach would have been the same if Sergeant Bailey had deliberately ignored Mr Williamson’s information as to Mrs Udompun’s need for sanitary products as was in fact the case where his failure to provide the products was due to his overlooking the request in the very busy environment of the watch house. The purpose of BORA compensation is to vindicate the right and not to punish the perpetrator – see Baigent’s case at 703 (per Hardie Boys J). We also refer to the remarks of Richardson J in Martin at 428 where he said that the objective of any BORA remedy is to vindicate human rights, not to punish or discipline those responsible for the breach. We thus in this case do not consider that the inadvertent nature of the breach should have a major effect on the level of damages.
Conclusion
[178] Taking all the above matters into account we are of the view that an award of $4,000 damages is sufficient to vindicate the breach of s 23(5).
Interest and indemnity costs
Heath J’s judgment
[179] As indicated above, the Judge decided that, had the breach in Christchurch alone been proved, he would have awarded damages of $10,000 to reflect that breach. He decided, therefore, that interest should run on the sum of $10,000 as from 24 October 1999 and be payable by the Immigration Service. Interest was to run on the balance of the award ($40,000) from the date of Mrs Udompun’s arrival in New Zealand on 20 September 2000. Liability for payment of that interest would be apportioned equally between each defendant. Liability for post judgment interest was apportioned equally as between the two defendants.
[180] In his judgment of 24 October 2003, Heath J also provisionally awarded indemnity costs. This was, in his provisional view, appropriate in order to ensure that meritorious plaintiffs are not discouraged from bringing proceedings. Later, by judgment of 12 February 2004, the indemnity costs order was confirmed. A stay of execution of the substantive judgment pending appeal was also granted, provided costs were paid within 14 days.
Crown’s submissions
[181] Noting that an award of pre-judgment interest is governed by s 87 of the Judicature Act 1908, Mr Keith, who argued this part of the case for the Crown, submitted that its general purpose was to compensate a plaintiff for loss of use of money (see Day v Mead [1987] 2 NZLR 443 at 452-453). On the other hand, he argued that, following Bowen v Paramount Builders (Hamilton) Ltd [1977] 1 NZLR 394 at 411 and Attorney-General v N [2002] 1 NZLR 651 at 658, pre-judgment interest is not necessary where damages have been assessed at judgment date. BORA damages are different in nature from tort damages as they are designed to vindicate a right. It was, he said, wrong in principle to regard the award as a loss of money from the point at which the claim arose. Such an approach, he submitted, would also be inconsistent with the practice of the European Court of Human Rights.
[182] Finally, in respect of indemnity costs, Mr Keith submitted that, in this case, the numerous unsuccessful claims by Mrs Udompun justified a reduction. Moreover, he argued, although there are some BORA cases which have aspects which warrant increased or even indemnity costs, this should be approached on a case by case basis. A general disincentive basis could be applied in many proceedings but it was submitted to be an unacceptably large departure from principle that this be a universal practice. There was also support for a restrictive approach to indemnity costs in the Canadian Charter cases - see Mackin v New Brunswick [2002] 1 SCR 405.
Mrs Udompun’s submissions
[183] Mrs Woodroffe supported the Judge’s reasoning in respect of pre‑judgment interest, arguing that the harm started in 1999 and continued to the date of judgment. In terms of indemnity costs, she again supported the Judge’s reasoning, arguing that the case is consonant with the principles in rule 48C of the High Court Rules and submitting that there is no justification for taking a restrictive approach.
[184] Mrs Woodroffe also asserted that the Crown’s conduct had been outrageous because it concealed the identity of Mr Williamson, the civilian at the Papakura Police Station who held vital information supporting Mrs Udompun’s evidence. When this was discovered, an application was made to call the witness and this necessitated last minute preparation on behalf of Mrs Udompun. This non-disclosure also goes to vexatious or improper conduct. It was also said that the Crown committed further outrageous conduct in making several representations to the Legal Services Agency claiming that Mrs Udompun was not entitled to legal aid. Finally, Mrs Woodroffe listed several further factors that, in her view, justify indemnity costs, namely that a disincentive for meritorious claims will exist if indemnity costs are not awarded, that this case is unprecedented, that deprivations of liberty are serious, that the breach is aggravated, that indemnity costs in Baigent claims have not been ruled out and have in fact been granted in previous Baigent cases, that Mrs Udompun’s case affects New Zealand’s international relations and that counsel had to take additional time due to language difficulties.
Discussion
[185] With regard to the award of pre-judgment interest, we accept Mr Keith’s submissions. It follows that the Judge was wrong to award it.
[186] In our view, the Judge was not wrong in principle to award indemnity costs, even though not all of Mrs Udompun’s claims succeeded before him. In this area it may not always be appropriate to allow costs to follow the event. It is important to remember that Baigent damages are awarded only where other remedies are not sufficient and awards are, in any event, modest. Applying the normal costs rules in such circumstances may discourage litigants from bringing BORA claims. This would clearly have the result of weakening BORA protections. Indemnity costs could also, in suitable cases, be seen as necessary for a proper vindication of the right. This does not mean, however, that indemnity costs are to be awarded as a matter of course in BORA cases.
[187] In this case, if we had upheld the view of the Judge as to the extent of the breaches, we would have considered indemnity costs to have been appropriately awarded. The breaches found were sufficiently comprehensive to justify the award, touching as they did on all aspects of Mrs Udompun’s involvement with the New Zealand Immigration Service and the police. We have not, however, taken the same view of the extent of the breaches as the Judge did. It is inappropriate in our view for the police to bear the costs of Mrs Udompun’s unsuccessful claims against the Immigration Service. The extent to which the police should bear the costs of the claims against them is remitted back to the High Court to be considered in the light of this judgment.
[188] We make no comment on Mrs Woodroffe’s submissions as to the alleged outrageous conduct of the Crown. These are better assessed by the High Court in the context of the setting of costs in that Court.
Conclusion and costs in this Court
[189] For the reasons set out above, we consider that there was no breach of s 27(1) at Christchurch and that Mrs Udompun’s rights under s 23(1) were not breached when she was detained in Auckland. There was, however, a breach by the police of Mrs Udompun’s rights under s 23(5) arising out of the failure to provide sanitary products to Mrs Udompun at Papakura Police Station. This breach was exacerbated by the failure to provide a shower, a change of clothes, and a means for Mrs Udompun to communicate her need for sanitary products and by the failure to provide food until after 11 pm on 20 September. The damages for the breach of Mrs Udompun’s s 23(5) rights are set at $4,000. No pre-judgment interest is awarded on that sum.
[190] The question of costs in the High Court is remitted to that Court to be determined in the light of this judgment. As Mrs Udompun is legally aided, we make no award of costs in this Court.
HAMMOND J
Introduction
[191] I agree that this appeal, so far as it is directed to s 23(1)(b) and s 27(1) of the New Zealand Bill of Rights Act 1990 (BORA) should be allowed; and that the compendious award of $50,000 should be set aside.
[192] I also agree that there was in this case a breach of s 23(5) of BORA. But in my view the award of $4,000 for the breach of what I will call Mrs Udompun’s “dignitary interest” is distinctly inadequate. I would have awarded Mrs Udompun $10,000 under this head.
[193] As to costs, I also differ from my colleagues. In my view Mrs Udompun should have her reasonable indemnity costs and disbursements, in the High Court; and costs in this Court.
[194] I would allocate both the damages and the costs awards against the second appellant, the New Zealand Police.
[195] I will put my concerns under three heads: the nature of the protected interest; the appropriate measure of damages; and costs.
The nature of the protected interest
[196] The relevant provision of BORA provides that “everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person …” (s 23(5); emphasis added).
[197] It is common ground that there was a breach of this provision arising out of the failure to provide sanitary products to Mrs Udompun at Papakura Police Station, exacerbated by the failure to provide her with a shower, a change of clothes, and food on the relevant day ([141]-[147]).
[198] The High Court Judge and the majority Judges in this Court regard the breach, in the circumstances of this case, as a “serious” one [175], above). I agree.
[199] Although the majority Judges acknowledge the nature and importance of the right which has been infringed, there are certain aspects of the concept of the “right” in question which I consider should be emphasised.
[200] The starting point is that we are here talking about fundamental human dignity. This rests on the Kantian philosophy that requires us to treat every human being as an end, not as a means. Ronald Dworkin, in Taking Rights Seriously (1977) put the point this way:
Anyone who professes to take rights seriously, and who praises our Government for respecting them, must have some sense of what that point is. He [or she] must accept, at the minimum … the vague but powerful idea of human dignity. This idea, associated with Kant, but defended by philosophers of different schools, supposes there are ways of treating a [person] that are inconsistent with recognising [that person] as a full member of the human community, and holds that such treatment is profoundly unjust (at 198).
[201] Intrinsic dignity is not just a metaphysical concept. What such a concept does is to recognise human dignity as a universal value; as an inalienable value; and as a matter which is significantly tied up with human autonomy. And it must live and breathe in the real world. In that sense it is also a social construct. (See generally G P Fletcher, “Human Dignity as a Constitutional Value” (1984) 22 UW Ont L Rev 171; Joseph Raz, Value, Respect and Attachment (2001) at 124‑176; Schachter, “Human Dignity as a Normative Concept” (1984) 77 Am J In’l L 848).
[202] The Supreme Court of Canada has expanded on the notion of fundamental human dignity (alongside its sibling value, equality) as a reflection of the values protected by the provisions of the Canadian Charter of Rights. In Law v Canada [1999] 1 SCR 497 Iacobucci J said:
Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalised, ignored, or devalued, and is enhanced when laws recognise the full place of all individuals and groups within Canadian society (at 530).
[203] The short point here is that within the law generally, and particularly under human rights legislation, there is a growing jurisprudence on the centrality of dignity, and the importance of squarely recognising and adequately addressing that interest. (See further Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Dignitary Interest and Referential Loss” (2004) 41 San Diego L Rev 1521).
The remedy: damages
[204] The problem of the appropriate remedy for a breach of a dignitary interest of this character is a difficult one.
[205] Undoubtedly, in all the common law jurisdictions which have confronted this issue, and however it has arisen (that is, whether under legislation or by virtue of common law obligations) there has been reluctance by courts to avoid moving to the damages remedy. This seems to arise out of a perception that there will be problems raised by ephemeral losses, highly subjective damage to feelings, and unmeritorious lawsuits for damages to pure feelings. Instead, courts tend to resort to fines for code violations of one kind or another, declarations and injunctions, reinstatement orders, or orders for the amelioration of the causes of harassment or discriminatory practises, which seem to be seen as a form of rehabilitation.
[206] This remedial approach of treating damages as very much a last resort, and on a “liability” type basis, is, in my view, conceptually inappropriate in a BORA regime. Employing the classic analysis of Calabresi and Melamed in “Property Rules, Liability Rules, Inalienability, One View of the Cathedral” (1972) 85 Harv L Rev 1089, this provision of BORA should be seen precisely for what it is - an “inalienability” provision. A court does not “impose” a liability rule (really on a tortious analogy) in a bad enough case; the requirement to observe BORA is ever present. In short, the private law tail should not be permitted to wag the public law dog, and the tendency of Judges to assess damages as if they had been raised on an orthodox common law claim is not appropriate.
[207] In Manga v Attorney-General [2000] 2 NZLR 65, I had occasion to say:
Cases based upon violations of the Bill of Rights are about the vindication of statutory policies which are not “just” private: they have overarching, public dimensions. The context of such a proceeding necessarily changes, in at least three ways. First, the case is not a winner-takes-all kind of case. Damages are an economic concept. Bill of Rights cases routinely involve a rearrangement of the social relations between the parties, and sometimes with third parties. The object is to promote mutual justice, and to protect the weak from the strong. Secondly, the future consequences of such a case are every bit as important as the past, and the particular transgression. Thirdly, there is a distinct interface with public administration, and indeed, the governance of a given jurisdiction (at 81-82).
[208] In Dunlea v Attorney-General [2000] 3 NZLR 136 Thomas J likewise emphasised the importance of recognising the different kind of interests at stake in a case of this kind. See also Behera v State of Orissa (1993) 2 SCC 746 (SC India).
[209] With these points in mind, the next question is, “how then does the Court actually fix the damages?” This is a pressing problem for the Bar, and in particular for those who advise the Crown. Several points need to be borne in mind.
[210] First, moderation is required in claims of this character. All too often plaintiffs’ counsel, or plaintiffs in person, make extravagant claims for BORA breaches. This immediately puts the state agency into a defensive position. It may well be recognised - as Mr France responsibly did in this instance - that all was not well in the way in which a particular matter was handled. But the moment a breach of BORA is acknowledged, there can be opportunistic behaviour by claimants.
[211] The short answer to that kind of problem is that this has always been a feature of litigation. A simple example was the “compensation neurosis” which sometimes manifested itself in various ways when personal injury litigation was still very much a feature of the work of courts handling civil claims in this jurisdiction. But, generally speaking, gaming behaviour of that kind is easily recognised (and in fairness to Mrs Udompun’s counsel I must record that I am not for one moment suggesting that there has been any such behaviour in this case).
[212] Secondly, to the extent that there are problems in making an assessment of non-pecuniary damages for the effect of the incident on Mrs Udompun herself, there is nothing new about that enterprise either. In the area of personal injuries, damages for pain and suffering and loss of amenities of life always had to be fixed, and still do have to be fixed, in the majority of common law jurisdictions in the world. Non-pecuniary damages for mental distress are well recognised in certain torts. And in wrongful dismissal cases, employment courts, or their equivalent, have done much worthwhile work in protecting and evaluating what might be termed the “individual” dignitary interests.
[213] Thirdly, it should not be necessary to show oppressive conduct, let alone maliciousness. The relevant question is: how ought this behaviour reasonably to be seen as infringing on human dignity, in the particular circumstances of this case?
[214] Fourthly, full and proper recognition must be accorded to the “public” dimensions of the breach of rights. To again employ the Calabresi and Melamed analysis, the statutory provision under consideration is not a “liability” rule. It is an “inalienability” rule. Economic analysis is useful here. Indeed, in my view, it provides a central insight. The inherent dignity of human beings is a “merit” good. It is not a tradable private right. To the extent that compensation is awarded, that compensation should therefore, in principle, be of a “superliability” character.
[215] Fifthly, I agree that, as a matter of general principle, it may be appropriate to take account of the behaviour of a complainant, or the way a particular action may fall on him or her, in the particular circumstances. By way of illustration, in the Manga case, I considered it to be of some relevance that Mr Manga had strenuously protested his position as to his unlawful detention from a very early stage; but when assessing the actual impact on him personally in terms of the unlawful incarceration, he was an experienced old boy of the criminal justice system. That said, there is a certain danger in pressing these “contributory” or “personal factor” concerns too far, when, after all, the Court is dealing with the “vindication” of an important public value in a particular institutional setting.
[216] Against all of this, I return to the present case. As I understand the reasoning of the majority Judges, having started from the proposition that there was here a “serious” breach, and having (correctly in my view) put to one side the inadvertence or otherwise of the police conduct, it appears that the award which the majority might otherwise have made (although no starting point is stated), turns principally upon the consideration that Mrs Udompun must bear some responsibility for her own predicament, in the sense canvassed by the majority Judges. That seems to me a somewhat harsh judgment in this case.
[217] The real difficulty in this case (and I admit to a real degree of sympathy for Police in the predicament they faced in this case, for this was an “inter-agency” problem) is that what I will call the “reception system” for illegal entrants to New Zealand does not appear to be adequate to deal with cases like Mrs Udompun’s. The reality of what happened here, is that without anywhere else to put her, Mrs Udompun was placed in a police cell, with all the unfortunate consequences for her personally which flowed from that. And once that is accepted as being an acceptable institutional response, with the best goodwill in the world she will be viewed (as I consider she largely was) by the authorities as somebody who should not be in New Zealand, is about to be deported, and whose personal needs of a dignitary character are therefore less important. In the time-honoured phrase, “that cannot be right”.
[218] In the result, the “public” dimension of the case has not been sufficiently recognised in the award. I would have awarded $10,000 in damages.
Costs
[219] This is an issue of real significance in the future of BORA litigation.
[220] For a discussion of some of the economic problems associated with the costs of public interest litigation generally, see Settle and Weisbrod “Financing Public Interest Law” in Weisbrod, Handler and Komesar, Public Interest Law: An Economic and Institutional Analysis (1978) at 532, albeit that discussion is directed to a regime with much less emphasis on “costs-shifting” than is the case in New Zealand.
[221] In Manga v The Attorney-General I suggested that very serious consideration should be given to Mr Manga’s costs being met on a solicitor and client basis (para [155]). I did not there have to finally decide the issue.
[222] Conceptually, costs are today seen as a form of remedy. In my view, the plaintiff in this case should have her (reasonable) indemnity costs. Again, the Calabresi distinction resonates with me. It is a mistake to think of this as a “liability” situation. What the Court is concerned with here is upholding the “inalienability” of certain kinds of BORA values. The allocation of costs should reflect that recognition. When a citizen - or for that matter a non-citizen - establishes (as here) a distinct and serious breach of BORA by a relevant agency of the state, that agency should be expected to stand fully behind the claim, in costs.
[223] In principle, BORA should not be watered down by leaving persons with no incentive or an inability to bring proceedings. This is because BORA places an affirmative obligation on “the judicial branch of the government of New Zealand” (3(a)) to “affirm, protect and promote” (Preamble to BORA) the provisions of that enactment. An obligation of that strength is not discharged by the application of “usual” costs rules.
[224] There is some indication in the case law that, although, generally speaking, to date Courts have tended to assert that merely because litigation is of a “public interest” or “test case” variety that is not a licence to depart from the “usual” regime for costs, where there is a government (or government agency) involved in a case involving fundamental human rights, that may be a circumstance to alter the usual exercise of a costs discretion: see Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315 (PC, Lord Steyn); Nuredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 at 145.
[225] Accordingly, I would have directed that there be an order for indemnity costs, and remitted that issue to the High Court solely for the assessment of the quantum of those costs, and disbursements, in that Court; I would have awarded Mrs Udompun $8,000 costs and her reasonable disbursements in this Court.
Solicitors:
Crown Law Office, Wellington
Woodroffe Law Partnership, Auckland for RespondentAPPENDIX
Part A - English version of BORA form
NOTICE TO PERSON IN CUSTODY
As an accused person you are entitled to communicate without delay with, and be visited by, a solicitor of your choice.
If you are an accused person on overnight arrest you are also entitled to communicate with and be visited by your family or a friend; if no family is available, a medical practitioner, minister of religion, and if you are an alien, by your diplomatic or consular representative. If you are an accused person in custody for a longer period you are also entitled to be visited by your friends and social workers.
The visits referred to in the above paragraph are subject to the necessity of the Police to prevent interference with witnesses, the suppression of evidence, or the passing of information which may assist you to escape or assist your accomplices.
The Police (unless forbidden to do so by you) will contact a nominated relative or friend for you, unless impractical and inform him of your arrest, the charges, and whether you are bailable. However, if you are under 17 years of age, your spouse, parent or guardian will be informed irrespective of your wishes.
I have read the above information._________________________________
(Signature) (Date)
Part B - Translation of BORA form by Thai interpreter
From the heading first line: this document have been said whoever in this case been detailed you got right to contact your lawyer. Either you contact them yourself or you can ask your lawyer to come and see you and Police will do it without delay. Depending on specified lawyers or appointed name of the lawyer. If you detain overnight you have right for your family to visit or friend to visit. If your family cannot come, doctor or persons like Buddhist monks will come and see you. If you at overseas embassy officer for your country or consulate will come and see you. If you are detained longer you have right to get visit from friends or social worker. All the visitors mentioned above is to protect evidence for the Police just in case someone’s hiding some evidence or signals for that person to escape from the case. Police will contact the family or friends but (if you tell them not to) that’s the difference. You can tell about your case whether you are going to have bail or not. If family is not there Police will use telegram or something else to contact the family. But if you under 20 years old, Police will contact your parents straight away without any obligation. Underneath there, 1, 2, 3, 4, 5 this one has say this above the person who signed it have to read it and understand and this going to sign in the first time when you stop by whoever stop you and also attach some information why you been stopped or detained.
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