Brown v The Attorney General
[2005] NZCA 28
•3 March 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA39/03
BETWEENEDWIN CHRISTOPHER BROWN
Appellant
ANDATTORNEY-GENERAL
Respondent
Hearing:16-17 June 2004
Court:Anderson P, Hammond, William Young, Chambers and O'Regan JJ
Counsel:A Shaw and G E Edgeler for Appellant
S P France and A S Butler for Respondent
Judgment:3 March 2005
JUDGMENT OF THE COURT
A THE APPEAL IS DISMISSED.
B Costs are reserved.
REASONS
Anderson P, Hammond, Chambers and O’Regan JJ [1]
William Young J [119]ANDERSON P, HAMMOND, CHAMBERS AND O’REGAN JJ
(Given by Chambers J)
Table of Contents
Para No
A $3 million Bill of Rights claim [1]
Essential facts [4]
Issues on this appeal [25]The criminal legal aid decision
Introduction [43]Glazebrook J’s decision [46]
The statutory scheme [48]
Mr Brown’s application for disbursements [57]
Glazebrook J’s view of the 6 September decision [77]
Our evaluation [80]
Breach of the Bill of Rights? [89]
Compensation [100]
Delay [102]
Two miscellaneous matters
Mr Shaw’s approach to this appeal [114]
A word about Mr Rogers [117]
Result [118]
A $3 million Bill of Rights claim
[1] Edwin Brown claims that, as a consequence of breaches of various rights accorded to him under ss 21 to 25 and 27 of the New Zealand Bill of Rights Act 1990, he “suffered an unjustifiable loss of liberty from 2nd February 1996 until 27th June 1997”. That was the time he spent in jail following his conviction in a trial which, he says, was not fair because he was denied appropriate resources with which to defend himself. He claims compensation from the Crown in the sum of $3 million, together with interest and costs.
[2] Mr Brown’s civil claim for compensation was heard by Glazebrook J. She dismissed the claim. Her decision is reported at [2003] 3 NZLR 335. Mr Brown now appeals against that decision. The Attorney-General, representing the Crown, has also given notice of her intention to support the judgment under appeal on other grounds.
[3] Before defining the issues on this appeal, we think it desirable to set out the essential facts necessary for an understanding of how this proceeding has arisen.
Essential facts
[4] On 22 October 2003, a service station on Auckland’s North Shore was robbed. In the early hours of that morning, two men entered the service station. Each was armed with a knife and disguised with a balaclava. One of the men (robber 1) confronted the service station attendant in the storeroom out the back while the other (robber 2) went to the counter area to take money. The attendant became involved in a struggle with robber 1. Robber 2 then went into the storeroom and overpowered the service station attendant, in the course of which the attendant received a cut to the hand. To show the service station attendant who was in control of the situation, robber 2 deliberately cut him just above the ear on the side of his head. He then marched the attendant back into the shop and required him to open the till. This contained only $185. Robber 2 demanded more. When the attendant was unable to direct the robbers to any more, robber 2 stabbed him in the left side of the chest, puncturing his lung. The two robbers then ran off with the till tray.
[5] The incident was captured on an instore video camera. That showed the two robbers. It showed that robber 2 was wearing a red jacket.
[6] An alarm was raised. The police attended promptly, with a police tracker dog. The dog followed a scent from the scene of the robbery to a block of flats approximately a kilometre away. En route police located a red jacket that had blood on it which, they thought, could have come from the victim. Later that morning the police obtained and executed a search warrant on a flat in the block. Mr Brown was the tenant of that flat. His brother, Nani, and Maxwell Barrett also lived there. The police found a number of items in the flat. For present purposes, the relevant items are a short-sleeved black t-shirt and a long-sleeved black t-shirt, both found in a “sweaty” condition in the laundry. There was a trace of blood on the short-sleeved t‑shirt, but there was insufficient blood to obtain results as to the blood group type or a DNA profile. Mr Brown agrees that this t-shirt was his. The long-sleeved shirt also had blood on it. Forensic experts at the Institute of Environmental Science and Research Limited (ESR) inspected that blood and concluded that it came from the victim. That t-shirt was later to become exhibit 11 and we shall refer to it as “exhibit 11” in this judgment. ESR also concluded that the red jacket the police found also had the victim’s blood on it.
[7] Over a year later, the police arrested and charged Mr Brown in relation to the robbery. Their case was that he was robber 2, the man in the red jacket. Following a preliminary hearing, Mr Brown was committed for trial. In the indictment, he was charged with attempted murder, wounding with intent to cause grievous bodily harm, and aggravated robbery, each together with a person unknown. Mr Brown was eligible for criminal legal aid. Aid was granted. Anthony Rogers, an Auckland criminal barrister, was appointed as Mr Brown’s counsel.
[8] On 25 July 1995 Mr Rogers wrote to the registrar of the High Court at Auckland seeking urgent legal aid approval for a number of disbursements. He sought to have Mr Brown examined for the purpose of a “nose profile analysis”. Mr Rogers wanted to have two specialist doctors compare Mr Brown’s nose with robber 2’s nose as recorded on the service station video recorder. As well, Mr Rogers wanted the long-sleeved t-shirt on which the victim’s blood had been found to be examined. He hoped that the sweat or any cellular material on the t-shirt could be analysed for blood group or DNA. He said that he would like the testing done in an Australian laboratory. He did not want it done by ESR, as ESR staff were already Crown witnesses.
[9] The Auckland District Legal Services Subcommittee (the DLSS) considered this application. (We shall examine later the statutory framework within which this subcommittee operated.) On 9 August 1995, it approved the disbursement for a plastic surgeon’s initial report. It said that further disbursements in that regard would be considered upon receipt of that surgeon’s report. It did not approve the t‑shirt analysis, although it indicated that it would consider analysis by the ESR in New Zealand. The subcommittee suggested that counsel arrange the same on a confidential basis.
[10] Later in August Mr Rogers applied for an adjournment of the trial due to commence in the High Court at Auckland on 11 September. On 24 August Morris J declined it.
[11] Following that, Mr Rogers requested the DLSS to reconsider the t-shirt decision. The DLSS did reconsider it on several occasions, but ultimately did not change it, maintaining the refusal to approve testing in Australia. The crucial decision was a decision communicated to Mr Rogers on 6 September.
[12] Although Mr Brown’s trial was due to commence on 11 September, it ended up being adjourned because Mr Rogers was sick. A new trial date for 11 December 1995 was fixed.
[13] After he had recovered, Mr Rogers gave consideration to an application for judicial review of the DLSS’s decision. Mr Brown needed legal aid to pursue that application. Because this proposed proceeding was a civil one, the application for legal aid had to be considered in terms of the civil legal aid regime. Application for civil legal aid was eventually made on 30 November 1995. That application was declined, but for some reason that decision was not communicated to Mr Rogers’s instructing solicitor, Mr Thompson. The fact that decision had been made was not discovered for quite some time, as neither Mr Rogers nor Mr Thompson followed up that application as to its fate.
[14] Mr Brown’s trial commenced on 13 December 1995. The trial was before Fisher J and a jury in the High Court at Auckland. The defence was that Mr Brown was not one of the robbers. Mr Rogers, on Mr Brown’s behalf, accepted that the overwhelming likelihood was that at least one of the robbers had come from Mr Brown’s flat, but the thesis was that the police had got the wrong man. Neither Mr Brown’s brother nor Mr Barrett had given evidence. The principal issue at the trial was whether the man in the red jacket was Mr Edwin Brown or whether there was a reasonable possibility that it was his brother or Mr Barrett. The Crown sought to eliminate them as suspects by reference to evidence as to height, skin colour, and tattoo marks.
[15] The defence proposed to call Christopher McEwan, a plastic surgeon. The Crown objected to his evidence. Mr McEwan proposed to compare the video photograph taken in the service station with a photograph of Mr Brown. Fisher J ruled that the proposed evidence was inadmissible. He ruled that the jury would be “in a position to make as good a comparison as anyone else”.
[16] The jury found Mr Brown not guilty on the charge of attempted murder but convicted him on the other two charges. Following the jury’s verdict, Fisher J remanded Mr Brown in custody for sentencing.
[17] On 2 February 1996, Fisher J sentenced Mr Brown to nine years’ imprisonment on each of the charges proved, the two terms to be served concurrently. It is 2 February 1996 which marks the start of the so-called “unjustifiable loss of liberty” which Mr Brown complains of in the present proceeding.
[18] Mr Brown appealed against his convictions to this court. One of the complaints advanced was the DLSS’s refusal to grant legal aid approval for the instructing of forensic experts in Australia. Throughout 1996, there were various discussions between Mr Lithgow of Crown Law and various counsel representing Mr Brown. In the end, it was agreed between Mr Davison QC (at that time acting for Mr Brown) and Mr Lithgow that exhibit 11 would be analysed by a laboratory in Sydney. The purpose of the examination was “to limit and further identify the issues and was not to be a concession by either party in respect of the appeal”. Shortly after that agreement was reached, it was ascertained that the particular tests to be done on exhibit 11 could now be undertaken by ESR in New Zealand. By agreement with Mr Davison, exhibit 11 was taken to ESR for analysis.
[19] In a report dated 17 March 1997, Sue Vintiner, of ESR, stated that the DNA analysis of the blood on exhibit 11 strongly supported the proposition that that blood originated from the service station attendant. She further stated that possible perspiration areas on the armpit and neck band of the t-shirt had been examined. Mr Brown’s DNA could not be found, but DNA from more than one person was found. She was unable to confirm or deny the proposition that Mr Brown had worn the t‑shirt. The testing was not conclusive because it is possible that an individual can wear a garment and not leave detectable amounts of perspiration on it.
[20] On 23 May 1997 Mr McEwan filed a further affidavit with the Court of Appeal. This affidavit related to a “facial mapping” technique. Both Mr Brown and the Crown agree, for the purposes of this proceeding, that Mr McEwan’s technique, as enunciated in this affidavit, was substantially different from the evidence which Mr McEwan had proposed to give at Mr Brown’s trial. Mr McEwan had developed his technique in light of information given to him by Mr Rogers after the trial.
[21] Mr Brown’s appeal was due to be heard on 24 June 1997. (This court had in fact been trying to have the appeal heard for many months. The appeal was originally to be heard in July 1996, but was then adjourned. The details of the steps taken by this court between July 1996 and June 1997 do not need recounting, as there are no allegations against this court or its staff or the Crown (in the guise of Crown Law) with respect to this period.) At that hearing, Crown counsel accepted that the “facial mapping” evidence and Ms Vintiner’s DNA evidence had not been available at trial and that therefore a new trial was appropriate. This court allowed Mr Brown’s appeal, quashed his convictions, and ordered a new trial. On or about 27 June Mr Brown was released on bail pending his new trial.
[22] Subsequently, the police obtained consent for blood samples to be taken from Nani Brown and Mr Barrett. Ms Vintiner was asked to analyse the blood samples to see whether either of those two persons could be the source of DNA on exhibit 11. She reported that DNA from Nani Brown was not detected in the samples. DNA from Mr Barrett could have been present as part of a mixture with another individual (who was not Nani or Edwin Brown). In her view, the DNA analysis supported the proposition that Mr Barrett had worn exhibit 11 at some time since it had last been laundered.
[23] Following this report, the police again interviewed Mr Barrett. He denied wearing exhibit 11, but he reiterated information he had previously given the police to the effect that he had found the t-shirt in a playing field, had picked it up and carried it back to the flat in his hand, and had thrown it in the laundry. He could not explain how his sweat got onto the shirt.
[24] The police disclosed Ms Vintiner’s further report and Mr Barrett’s further witness statement to the defence. The defence applied again for Mr Brown’s discharge under s 347 of the Crimes Act 1961. This time the Crown did not oppose the application. The court granted the application and Mr Brown was discharged under that section on 22 December 1997.
Issues on this appeal
[25] This was a claim for compensation for a breach of rights under the Bill of Rights. That the courts have jurisdiction to give a compensation remedy was established by this court in Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667. The Crown does not dispute that, although it says this is not an appropriate case in which the jurisdiction should be exercised.
[26] Although Mr Brown pleaded that a number of his rights under the Bill of Rights had been breached, the case (certainly as argued before us) centred on his right to a fair trial, a right affirmed under s 25(a) of the Bill of Rights. The Crown disputed that Mr Brown had not received a fair trial and further submitted that, even if his trial had not been fair, compensation would be inappropriate. But on one thing plaintiff and defendant were at one: if a plaintiff is suing for compensation under the Bill of Rights, the plaintiff must prove that someone who was bound to observe the Bill of Rights did something which caused the breach. See s 3 and the discussion in Rishworth & others The New Zealand Bill of Rights (2003) at 70.
[27] In our system of conducting civil litigation, it is to the statement of claim one turns in order to ascertain what “the defendant” is alleged to have done wrong, with full particulars as to time, place, people involved, etc. Unfortunately in this case the statement of claim (for which Mr Shaw was not responsible) was lacking in such particularity and patently did not comply with the High Court Rules. The Crown had on two occasions to seek further particulars in order to understand the true nature of Mr Brown’s claim. Even after that, the statement of claim (as amplified) required some mental agility for the Crown and court to work out exactly what the wrongful conduct was which was said to have led to a breach of Mr Brown’s rights.
[28] According to the statement of claim as filed – the reason for the qualification will be explained later - the Attorney-General was sued in respect of:
(a)Her Majesty the Queen in right of New Zealand; and
(b)The judicial branch of the Government of New Zealand; and
(c)The Legal Services Board being a statutory body constituted pursuant to the Legal Services Act 1991; and
(d)The Auckland Legal Services Subcommittee being a statutory body constituted pursuant to the Legal Services Act 1991.
[29] As a result of the further particulars, it became clear that the reference to “Her Majesty the Queen in right of New Zealand” was a reference to a part of the executive branch of the Government, namely the Department of Corrections. The complaint against that department is that it wrongly imprisoned Mr Brown.
[30] The complaint against “the judicial branch of the Government of New Zealand” relates to Morris J’s decision of 24 August 1995, dismissing Mr Rogers’s application for adjournment.
[31] Mr Brown, on the appeal before us, did not persist with the claim against the Department of Corrections and the complaint against Morris J. That was a sensible decision on counsel’s part. Clearly what the Department of Corrections did was lawful: not to have detained Mr Brown following the sentence of imprisonment would have been clearly unlawful. So far as Morris J’s decision of 24 August 1995 is concerned, even if there had been any grounds to criticise it, it ended up being of no effect. Mr Brown got an adjournment anyway after Mr Rogers fell ill.
[32] The complaint against the Legal Services Board has always been somewhat obscure. The only reference to the board came in para 10 of the statement of claim:
The plaintiff applied for legal aid to meet the cost of an application for review of the Subcommittee’s decisions but the plaintiff received no reply from the Legal Services Board or its officers in respect of the application for legal aid.
[33] It was unclear whether the complaint was simply the failure to communicate or whether the complaint was the decision not to grant legal aid for the application for judicial review. Indeed, it was even unclear whether this allegation was seen as a “causative” breach of Mr Brown’s rights at all. The Crown attempted to clarify this matter in its request for particulars before the High Court trial. The Crown asked whether Mr Brown alleged that the DLSS’s decision to refuse funding for the carrying out of the DNA test in Australia and Morris J’s refusal to adjourn the trial were “the sole cause of the plaintiff’s subsequent conviction and incarceration”. Mr Brown responded to that request for particulars, “No”. When asked who else breached his rights and by what act or omission, he specified only the Department of Corrections, “by imprisoning [him] in accordance with the decision of the Court”. Significantly, Mr Brown did not specify the Legal Services Board and its refusal to grant legal aid for the proposed application for judicial review. On the appeal, the complaint against the board was taken no further.
[34] Mr France (as he then was) and Dr Butler, for the Crown, observed in their written submissions to this court that Mr Brown had not pursued this matter with any vigour at trial and had not raised it on the appeal. That certainly appears to be the case. Mr Shaw did not make any submissions concerning the decision not to grant civil legal aid or the failure to communicate that decision. Given the particulars filed, we would have doubted in any event whether it was open to him to pursue this matter. In light of the pleadings and the way in which counsel argued the matter on appeal, we do not propose to take this “complaint” (if it be one) any further in this judgment.
[35] The complaint against the DLSS relates to its refusal to approve testing of the t-shirt in Australia. Of the four complaints in the statement of claim, that was the sole complaint advanced on the appeal. Mr Shaw summarised the complaint in his written submissions as follows:
The Crown breached the right of [Mr Brown] to have a fair trial in the particular circumstances in this case by:
(1)failing to pay for forensic tests on the long-sleeved black t‑shirt (Trial Exhibit 11) proposed to be conducted by the Sydney-based company Silbase; and/or
(2)failing to pay for expert advice that Silbase would have provided; and/or
(3)failing to pay for the arranging and calling of expert evidence from Silbase;
which would have assisted materially in raising a reasonable doubt at his trial.
[36] The essential question in this appeal is whether Mr Shaw’s submission is correct. Included within it are several issues.
[37] First, was the DLSS decision unlawful or unreasonable?
[38] Secondly, if it was unlawful or unreasonable, did it cause Mr Brown’s trial to be unfair?
[39] Thirdly, is compensation an appropriate remedy for a breach of “fair trial” rights?
[40] Fourthly, if compensation is appropriate, how is it to be measured?
[41] As already mentioned, the Attorney General gave notice of her intention to support the judgment under appeal on other grounds. The first of these was that Mr Brown’s claim was time barred under s 4 of the Limitation Act 1950. Dr Butler accepted that this court had held in Attorney-General v P F Sugrue Limited [2004] 1 NZLR 207 at [70] that the Limitation Act does not apply to Bill of Rights compensation claims. Dr Butler advised that Sugrue was awaiting hearing in the Privy Council and that it was the Crown’s intention to challenge that finding of law by this court. He did not seek to argue before us that Sugrue was wrong, but reserved the Crown’s position should the Privy Council hold that s 4 of the Limitation Act may be a defence. We need do no more than record the Crown’s position. No argument was presented to us by either side on this topic.
[42] As an alternative submission, Dr Butler submitted that the claim should have been struck out on the basis of delay. He relied on what this court said in Sugrue at [70]. Dr Butler submitted that Glazebrook J had wrongly refused to strike out the proceeding on this basis.
The criminal legal aid decision
Introduction
[43] Mr France and Dr Butler made the following introductory comment in their submissions:
There is notably a lack of matching between the appellant’s and respondent’s submissions. This reflects a different approach to the issues. In the respondent’s submission the case cannot be determined at the level of generality that the appellant invokes. Rather it is necessary to both analyse New Zealand statutory scheme and assess any alleged breach of a specific [Bill of Rights Act] provision in light of that scheme.
[44] We agree: there was a lack of matching between Mr Brown’s submissions and the Crown’s. Further, we are quite clear that it is the Crown’s approach which is correct. The starting point in this case is not the Bill of Rights. Rather it is the statutory scheme under which the DLSS was operating. There was and is no challenge to the validity of the scheme under which the DLSS was operating. Rather the challenge is to a particular decision made by the DLSS.
[45] The statutory scheme under which the DLSS was operating received scant mention in Mr Brown’s submissions. We consider that led the appellant into error.
Glazebrook J’s decision
[46] Glazebrook J found that the decision of the DLSS was wrong in law and that, had it been the subject of an application for judicial review, the High Court would have remitted the decision for reconsideration by the DLSS: [2003] 3 NZLR 335 at [100]. She nonetheless considered that, on reconsideration, any new decision would have been the same: ibid at [101]-[102].
[47] Mr Shaw did not directly challenge Glazebrook J’s reasoning on this point. He did submit at one stage that, had the DLSS exercised its discretionary decision‑making powers lawfully, it would have granted the disbursement for testing in the Australian laboratory. But he did not explain why Glazebrook J was wrong when she came to the conclusion that, even if the DLSS had reconsidered the application, it would have come to the same result. Mr Shaw’s argument was principally at a non-specific level of asserting that “the Crown” had failed to ensure that Mr Brown got a fair trial. For reasons we have already given, that is not the correct approach. A person may not receive a “fair trial” for a host of reasons, many of which may have nothing to do with “the Crown”.
The statutory scheme
[48] In order to determine the lawfulness of the decision of the DLSS, it is necessary to detail the statutory and regulatory framework under which the DLSS was operating. That is necessary because, as Mr France and Dr Butler said, the Bill of Rights “does not create a separate legal aid system outside the [Legal Services Act 1991]”.
[49] The criminal legal aid system at the time was established under the Legal Services Act 1991. It was supplemented by the Legal Services Regulations 1991 and by certain instructions issued by the Legal Services Board. These instructions were mandated by ss 96 and 97 of the Act. The relevant instructions so far as this appeal is concerned were the Legal Services Board (Criminal Legal Aid Remuneration) Instructions, issued on 24 January 1992 (“the Instructions”). There has been no challenge in this case to the validity of either the Regulations or the Instructions.
[50] Section 7(1) of the Legal Services Act empowered a court registrar to assess applications for criminal legal aid and direct that criminal legal aid be granted in certain circumstances. Such a direction was made in Mr Brown’s case.
[51] Under s 11(1), where a registrar has directed that criminal legal aid be granted, the registrar is bound, if required to do so by any instructions issued pursuant to s 96, forthwith to refer the application “to the District Subcommittee for the district in which the Court to which the application was made is situated”. Instructions had been issued pursuant to s 96. Clause 1(1) of the Instructions required registrars to refer “defended hearings in the High Court” to the Subcommittee for the appropriate legal services district “to enable the total remuneration…to be fixed”. Mr Brown’s application accordingly was referred to the Auckland Subcommittee.
[52] District subcommittees were constituted under s 122 of the Act. Section 122(2) sets out the membership of a subcommittee. In practice, the members of the subcommittee (at least in Auckland) were, so far as criminal legal aid is concerned, highly regarded members of the defence bar. Subcommittee members were not paid for their work. Members were rostered and met in panels to consider applications.
[53] It was the job of the DLSS to fix “the total remuneration”, a term defined in s 2 of the Act. The statutory definition of “total remuneration” was:
the aggregate of the amounts payable, in respect of [a grant of criminal legal] aid, on account of –
(a) Solicitors’s fee and counsel’s fee; and
(b) Disbursements:
[54] Under reg 6 of the Legal Services Regulations, the practitioner assigned to act for the criminal legal aid applicant was required to provide to the DLSS “a written estimate of the likely cost of the services in respect of which the aid was granted”. The details of the estimate required were fleshed out in the Instructions. The DLSS, when fixing the “total remuneration” under s 11(2), was required by cl 3 of the Instructions to take into account a number of matters. Among these matters were the estimate supplied by the practitioner and “any relevant guideline fee contained in Schedule 2” to the Instructions. Schedule 2 set out the hourly rates applicable for different categories of legal work. The hourly rates varied depending upon the seniority of the practitioner. Schedule 2 also specified a maximum number of hours for preparation. In the case of a defended hearing before a jury, maximum preparation time was five hours. So far as we are aware, there has never been any challenge by Mr Brown or Mr Rogers to the reasonableness of the figure ascribed to counsel’s fee in this case.
[55] Under cl 3(d) of the Instructions, the DLSS, when fixing the “total remuneration”, was also required to take into account “the amounts prescribed for the disbursements under section 83(1)”. That is the only reference to disbursements in the Instructions. The reason for that is that disbursements are dealt with in the Act and Regulations themselves. The relevant sections in the Act are ss 80 and 82-85. The relevant regulation is reg 51. Regulation 51 is of some importance in this case, and accordingly we set it out in full:
51 Claims for Disbursements
For the purposes of section 83(1) of the Act, the maximum sum that may be allowed under section 80 or section 82 of the Act in respect of all claims made, in relation to a grant of criminal legal aid, on account of any disbursement is as follows:
(a) Where the claim is on account of photocopying, $50:
(b) Where the claim is on account of travelling expenses, $100:
(c) Where the claim is on account of accommodation expenses, $150:
(d) Where the claim is on account of experts’ reports, $350.
[56] Under s 83(2) these maximum amounts could be exceeded only if “a District Subcommittee or Registrar considers that there are exceptional circumstances that justify the allowing of [a claim in excess of the prescribed maximum]”. In determining whether there are “exceptional circumstances”, the decision maker would be bound to take into account the legal aid defendant’s rights under the Bill of Rights, but that is no more than a factor in the overall scheme.
Mr Brown’s application for disbursements
[57] Mr Brown on this first limb must establish that the DLSS decision was unlawful and unreasonable. In determining that, we must pay close attention to:
(a) the statutory and regulatory scheme under which the DLSS was operating (the lawfulness of which has never been in dispute); and
(b)the information Mr Brown and his then lawyer gave to the DLSS.
[58] This latter point is important. In judging the reasonableness of the DLSS decision, we must confine ourselves to the information it had before it. The question is not whether the decision might have been different had additional facts X, Y, and Z been made known to it by the defendant’s counsel. If the DLSS made a wrong decision because the matter was handled incompetently by counsel, that might give rise to a miscarriage of justice justifying a quashing of conviction and an order for a new trial, but would not give rise to a claim for compensation under the Bill of Rights.
[59] Mr Rogers first applied for disbursement approval by letter dated 25 July 1995. The letter sought approval for experts’ fees in relation to two different matters:
(a) The first matter was the “nose profile analysis” to which we have earlier referred. Mr Rogers wished to retain Mr McEwan, a plastic surgeon, and Dr Avery, a rhinologist. Mr McEwan’s fee for his initial report was to be $180. Dr Avery’s was to be $843. If they were later to give evidence, additional fees would, of course, be incurred. Mr Rogers indicated in his letter that, if the evidence was favourable to Mr Brown, he would want to call both doctors.
(b) The second matter was testing Exhibit 11 to see whether any sweat on that t-shirt matched Mr Brown’s blood group or his DNA profile. The total cost of that testing was not stated, but was over $6,000. That figure did not include the cost of airfares and accommodation for the two Australian experts likely to be needed for evidential purposes, should the evidence be favourable to Mr Brown.
[60] The first point to note is that the total claim for disbursements exceeded $7,000 and could easily have gone much higher. It was, therefore, a claim more than 20 times higher than the maximum amount for experts’ reports allowed under the Act and the Regulations. The DLSS would accordingly have to be satisfied that there were “exceptional circumstances” (in terms of s 83(2)(b)) before they would be able to approve it. In those circumstances, one would have expected Mr Rogers to file a detailed application setting out the “exceptional circumstances” justifying such a large award. It should also be borne in mind that all legal aid applications were dealt with “on the papers”: there was no provision for oral hearings. In these circumstances, one would have expected Mr Rogers to set out in the application:
(a) the nature of the Crown case against Mr Brown;
(b)the nature of the proposed defence;
(c)the relevance of the proposed “nose profile analysis” to the defence;
(d) the relevance of the sweat testing to the proposed defence;
(e)background information from the proposed experts as to the help they envisaged they could give.
[61] Mr Rogers’s application was, in our view, very incomplete. He gave the DLSS no information as to the nature of the Crown case against Mr Brown. He did not explain the relevance of the proposed “nose profile analysis” or sweat testing. He did not explain the significance of Exhibit 11 to the Crown case. He did not supply to the committee any of the correspondence which had passed between him and the proposed experts. This failure to file a proper application was, we suspect, a principal cause of problems which later arose in the processing of this application.
[62] The DLSS considered the application on 9 August 1995. The members of the subcommittee on that occasion were David McNaughton, Peter Winter, and Mark Edgar, all three at that time very experienced criminal defence lawyers. They approved obtaining a report from Mr McEwan for the “nose profile analysis”. But they baulked at the cost of the proposed testing on Exhibit 11. Mr McNaughton said in evidence that the amount of money involved in this testing was “one of the highest sums applied for in respect of a legal aid disbursement while [he] was a member of the criminal subcommittee”. (He was a member of the Auckland subcommittee from the inception of the Legal Services Act 1991 until he retired from the committee in 1999. On average he dealt with in excess of 200 legal aid files each year.) To put the sum in context, he explained that the amount being sought for the sweat testing was at the time the equivalent of counsel’s fees for two average sexual violation trials.
[63] The subcommittee was concerned about several matters. First, it was the general policy of the subcommittee to prefer local experts to overseas experts, because they were cheaper. It would seem, from Mr Rogers’s letter, that the only reason ESR was not being used was that some staff members of ESR were already Crown witnesses. Mr Rogers said: “If the answers to the tests are unfavourable I would not want the Crown to know that.”
[64] The subcommittee was also concerned about the rather speculative nature of the testing. At best the testing (even if successful) would have indicated an absence of Mr Brown’s cellular material and sweat on the t-shirt, but what would that really prove? That concern was, in our view, entirely reasonable. Mr Rogers had not indicated anything about the proposed defence and about the fact that there were two others in the flat whom the defence intended to blame for the robbery. The subcommittee was being asked to make an assessment of relevance without being given any information by which they could assess the importance of Exhibit 11 and the importance of the proposed testing. Further, the subcommittee’s concern about the speculative nature of the testing was entirely understandable in light of the paucity of information about the testing provided by Mr Rogers. The proposed testing was obviously novel, but Mr Rogers did not provide any detail as to the chances of success of the testing.
[65] In the end, the DLSS did not approve the private analysis of blood and DNA, but indicated that it would consider analysis by the ESR. It suggested that counsel try to arrange that on a confidential basis.
[66] There is no possible way in which that decision could be criticised. On the information then available to the DLSS, it was eminently fair in all respects.
[67] Mr Rogers was orally advised of the DLSS decision. On 10 August, he sought reconsideration. The reason for reconsideration was this:
[Having ESR do the tests on a confidential basis] in my view would not be appropriate because in addition to the tests which I wish Silbase Scientific Services to conduct and which I referred to in my letter of 25 July, Silbase would check tests conducted by the ESR. It would not be appropriate in my view for one member of the staff of the ESR to be asked to provide an independent opinion as to the accuracy of the test conducted by another member of the staff at the same organisation.
[68] Mr Rogers had never previously indicated that Silbase’s tasks would include checking tests conducted by the ESR. His letter was silent as to what the ESR tests were that were to be checked. His letter gave no estimate as to what this checking would cost. That was all most unsatisfactory. It meant the DLSS had limited information on which to base its decision.
[69] The DLSS on 23 August 1995 confirmed their earlier decision. Again, based on the information before them, there could be no criticism of that decision.
[70] The next step in the saga was the application for adjournment of the trial, heard on 24 August. Morris J, in his reasons for declining the adjournment, said this:
Mr Rogers wishes to have the tee shirt scientifically examined. The accused has been granted legal aid so the taxpayer funds his defence. Mr Rogers applied to the Legal Services Sub Committee for leave to have the test, including an analysis, carried out by a specialist in Australia – with the New Zealand taxpayer paying the bill. The Sub Committee has refused this request and has suggested it would consider meeting the costs of an analysis by the ESR in New Zealand.
Counsel’s concern is members of the ESR have already carried out an analysis and tests on this garment and I presume others for the Crown. However, having heard both counsel, I am satisfied there are other members of the ESR staff who can carry out all necessary tests and who have the expertise to do so. Such staff can be instructed by Mr Rogers and can carry out the tests on the understanding any results or information deriving from that source will not be made available to Crown counsel. I am sure all members of the ESR are well aware of their professional obligations and I have no doubt will adhere to this arrangement.
[71] Mr Rogers’s application for disbursements was further considered by the DLSS on 25 August – the third time the application had been before them. On this occasion, the DLSS considered Mr McEwan’s report, which by this stage had been obtained by Mr Rogers. On the basis of it, the DLSS approved the costs of his attendance at trial. The committee did not consider, however, that a second medical expert on “nose profile analysis” was required. So far as Exhibit 11 testing was concerned, the committee confirmed its earlier decisions. That was unsurprising in light of Morris J’s comments, which had been relayed to the DLSS through High Court and District Court staff.
[72] The Crown Solicitor then wrote to Mr Rogers on 29 August. Mr Perkins of that office advised Mr Rogers that he had spoken to Dr Harbison of ESR and that she, as expected, had indicated that she would agree to distance herself from any further testing of Exhibit 11 by any other scientist within ESR instructed by Mr Rogers. The Crown Solicitor advised: “In the unlikely event that she inadvertently learned anything of the other tests she has confirmed to me that she would not advise the Police or the Crown.”
[73] Following receipt of that advice, Mr Rogers contacted the acting general manager of the ESR, Mr Lionel Sharman, on 29 August. On 30 August, Mr Sharman advised Mr Rogers that ESR lacked the technology to do the work that Mr Rogers wanted.
[74] This caused Mr Rogers to write again to the DLSS. His letter of 30 August read as follows:
I report that I have today been advised by telephone by the acting General Manager of the ESR, Mr L Sharman, that the ESR lacks the technology to conduct the test which I require and therefore the ESR was unable to assist me.
I therefore request again that the Legal Services Subcommittee reconsider its decision. I need a very urgent response in order that there be any possibility of the test being conducted in time for the trial.
[75] What then happened is shrouded in mystery. It appears that the DLSS did meet again – but it is unknown who sat on the subcommittee on this occasion. All that is known is that on 6 September Mr Rogers was advised by telephone that the DLSS maintained its refusal to approve testing in Australia. Although we do not know when this decision was made, we shall refer to it in this judgment as “the 6 September decision”.
[76] Mr Rogers never approached the committee again.
Glazebrook J’s view of the 6 September decision
[77] Glazebrook J was critical of the 6 September decision. She said (at [98]):
In summary, there was no reconsideration by the ADLSS of the decision to refuse the offshore testing after Mr Rogers’ 30 August letter, even though one of the major reasons for the refusal – that is, the availability of testing in New Zealand – had proved incorrect. The decision should have been reconsidered and that reconsideration should have involved the weighing of all relevant factors.
[78] Later she said (at [100]):
The decision on Mr Rogers’ letter of 30 August was thus wrong in law for failing to take into account relevant considerations. If this were a case of judicial review the matter would have been remitted to the ADLSS to consider properly weighing all relevant factors.
[79] Glazebrook J concluded, however, that had the decision been properly considered, it would have been the same: at [101].
Our evaluation
[80] We do not consider it can definitively be said that “there was no reconsideration by the ADLSS of the decision to refuse the offshore testing after Mr Rogers’ 30 August letter” or that the 6 September decision “was…wrong in law for failing to take into account relevant considerations”. Almost certainly there was a reconsideration of earlier decisions, but with the effluxion of time it is simply not possible now to know what the DLSS’s reasoning was when coming to the 6 September decision. Had Mr Rogers gone back to the DLSS after 6 September for an explanation or had an application for review been brought, it may well have been possible for the DLSS to justify its 6 September decision.
[81] Notwithstanding that, we consider that Mr Brown has established that the decision was challengeable in administrative law terms. But that is clearly an insufficient finding in a proceeding of this sort. The plaintiff must go further and show, on the balance of probabilities, that the decision, if properly considered, would have been different.
[82] Mr Brown did not satisfy Glazebrook J on this aspect and he did not satisfy us. We agree with Glazebrook J that, on the basis of the evidence in this case, the DLSS decision, had it been properly considered, would probably have been the same.
[83] In making that assessment, we have limited our consideration to the material which was before the DLSS as at 6 September 1995. That is an important point. It would be wrong in principle to consider additional material, such as the information Mr Rogers had obtained from the United Kingdom and Australia, but which he did not disclose to the DLSS. The reason why that extrinsic material cannot be considered is obvious. Suppose one concluded, but only after considering that extrinsic material, that the DLSS decision should have been to grant the disbursement rather than refusing it. All that would demonstrate is that Mr Rogers erred in failing to bring all relevant material to the attention of the DLSS. That would be Mr Rogers’s failure, not the DLSS’s failure, and the Crown is clearly not the guarantor of Mr Rogers. Mr Rogers’s failure, even if it may have led to an unfair trial, would not amount to a breach of the Bill of Rights for which the Crown is responsible.
[84] So the assessment of what the DLSS would have done, if acting lawfully and reasonably, must be made in light of the information Mr Rogers had chosen to put before it. Obviously too, in making the assessment, we can take into account the fact that the DLSS comprised highly regarded criminal defence lawyers, who could be expected to “read between the lines” and who would have a degree of specialist knowledge as to the state of forensic science as at 1995.
[85] There can be no dispute that Mr Rogers’s application for disbursements was for a sum far in excess of the prescribed maximum. Therefore, he had to demonstrate “exceptional circumstances” before the DLSS could have justified the grant, which in all likelihood was for a sum well in excess of $6,000. Like Glazebrook J, we consider that Mr Brown did not establish that the application probably would have been granted, if lawfully considered. On the contrary, we consider that it would probably have been declined for the following reasons, taken in combination:
(a) The cost was very high compared with the likelihood of success and the likely importance of the evidence (even if the tests were successful and were in Mr Brown’s favour).
(b) No information had been provided as to the likelihood of the testing proving successful. What the DLSS would have known, as a result of Mr Rogers’s letter of 30 August, was that this sort of testing was beyond the capacity of ESR. That would certainly have suggested to a reasonable DLSS that the proposed testing was novel and “cutting edge”. That would justifiably have caused concern as to the likelihood of the test providing any results, let alone decisive results. Mr Rogers provided no information about Silbase as to how it was able to undertake testing which was beyond ESR’s capacity. (Interestingly enough, although the DLSS was never told this, Mr Sharman, when speaking to Mr Rogers, had apparently declared that the chance of getting a scientific result from the proposed testing was “a long shot”.)
(c) Even if the testing did produce a result, Mr Rogers had provided no information as to what its relevance would have been. At best from the defence viewpoint, the testing would not have found Mr Brown’s DNA on Exhibit 11. But that takes the matter nowhere. The Crown case, it would seem, did not depend on proof that Mr Brown had worn Exhibit 11. Presumably one could draw the inference from Mr Rogers’s letters that the Crown had no DNA evidence from Exhibit 11 – an inference which incidentally we know to be the case. Mr Rogers had provided no explanation to the DLSS as to what such a negative finding would have meant. It might mean that Mr Brown had not worn Exhibit 11. It might mean that he had worn it but left no cellular material. It might mean that the testing was insufficiently sensitive to detect his cellular material. It might mean that there was simply insufficient DNA for analysis purposes. Mr Rogers’s application and the various letters thereafter did not provide any assistance on these questions. The DLSS in those circumstances would have been justified in concluding that the relevance of the proposed evidence was doubtful.
[86] For these reasons, we conclude, as did Glazebrook J, that Mr Brown did not establish that the DLSS’s decision, if lawfully made, would have been in favour of the grant. That finding disposes of Mr Brown’s claim for compensation: he did not establish that the DLSS decision breached his rights under the Bill of Rights as the decision made by the DLSS was one that could lawfully and reasonably have been made under the legislation under which they were working.
[87] Given our finding on this first issue, it is unnecessary for us to deal with the remaining issues which would have arisen had this first issue been determined in Mr Brown’s favour. This case raises very difficult issues as to the operation of the Bill of Rights and as to appropriate remedies for breaches of it. A definitive discussion of those issues should await a case where they will have a bearing on the result.
[88] We confine ourselves to some brief comments on the remaining issues.
Breach of the Bill of Rights?
[89] If we had found that the DLSS decision not to fund the Australian testing was wrong, it would not automatically have followed that the DLSS had caused a breach of Mr Brown’s rights under the Bill of Rights. Still less would it of itself justify a claim for compensation for the alleged “unjustifiable loss of liberty from 2nd February 1996 until 27th June 1997”. That that must be so can be very simply shown. Suppose the testing had revealed Mr Brown’s DNA on Exhibit 11. Clearly, had that been the outcome, Mr Rogers would not have called the evidence. In those circumstances, the DLSS’s refusal to fund the testing would not have led to a breach of Mr Brown’s rights under the Bill of Rights. There could be no question of compensation for unjustifiable loss of liberty.
[90] In a case of this sort, we consider that it was incumbent on Mr Brown to call evidence to show that, had the testing at Silbase taken place in 1995, a result would have been obtained which would probably have raised a reasonable doubt as to Mr Brown’s guilt.
[91] The obvious way of proving this would have been for Mr Brown in this proceeding to have had Silbase do the testing they had offered to do, using only techniques and equipment available to them in 1995. Exhibit 11 was presumably still available for such testing. Had that course been taken, we would have known:
(a)Whether the proposed testing yielded any results at all;
(b)If it did, what those results were.
[92] But Mr Brown did not call any evidence from Silbase at all. The only scientific evidence in this case came from the Crown side, and in particular from ESR. The correspondence between Mr Rogers and Silbase was in evidence, but that correspondence is not admissible to prove how successful Silbase’s testing might have been. Mr Brown in the current proceeding appears to have run his case in reliance on the following proposition:
1Ms Vintiner’s testing in 1997 did yield a result. Mr Brown’s DNA was not found on Exhibit 11, but DNA from more than one person was found.
2That result led to the Crown’s not opposing a s 347 application, which application resulted in the quashing of Mr Brown’s conviction and his release from prison.
3The same result, with the same outcome, would have arisen in 1995, had Silbase undertaken the proposed testing at that stage.
[93] Steps 2 and 3 of that analysis are, however, misconceived.
[94] As to step 2, it was not just Ms Vintiner’s test results that led to the Crown concession on the s 347 application. There was other important new evidence by then available. First, there was new evidence from Mr McEwan, evidence which the parties agree was substantially different from the evidence which Mr McEwan had proposed to give at Mr Brown’s trial. Mr McEwan had developed and refined his technique in light of information given to him by Mr Rogers after the trial. In addition, Mr McEwan had by this stage also undertaken further work in comparing the hands of robber 2 as shown on the video with Mr Brown’s hands. In his view there were significant differences between robber 2’s hands and Mr Brown’s. Kieran Raftery, the prosecutor at Mr Brown’s trial, attempted to find an expert to consider and possibly counter Mr McEwan’s new evidence. He was unable to find a suitable expert. According to Mr Raftery’s evidence in the current proceeding, it was Mr McEwan’s new evidence which was primarily responsible for the Crown’s decision not to oppose the s 347 application, as in Mr Raftery’s view this evidence did raise a reasonable doubt as to whether Mr Brown was robber 2.
[95] Secondly, there was new evidence from Ms Vintiner, which suggested that Mr Barrett’s DNA might have been on Exhibit 11. That was also significant from the Crown’s point of view, although, according to Mr Raftery, not as significant as Mr McEwan’s new evidence. This particular evidence could not have arisen from Silbase, as there was never any suggestion that Silbase would have available to it a blood or cellular sample from Mr Barrett with which to do comparisons.
[96] Accordingly, the Crown decision in 1997 was based on significantly different evidence from what would have been available from Silbase in 1995, even assuming Silbase had been successful in its proposed testing.
[97] The third limb of the proposition is also flawed in its logic. Not only was the Crown’s decision in 1997 based on evidence which could not have arisen from any testing by Silbase, but also it does not follow that Silbase would have had similar success in 1995 to Ms Vintiner’s in 1997. Although there is no evidence as to how exactly Silbase would have undertaken its testing in 1995, it appears from Ms Vintiner’s evidence that the techniques would have been different and would probably not have been successful.
[98] On such evidence as is available, we do not think that Mr Brown established that the Silbase testing would have yielded a result which would have raised a reasonable doubt as to Mr Brown’s guilt or would have had any material effect on the trial.
[99] Accordingly, while we express no definitive view, we do not consider it established that, even if the DLSS decision were unlawful, it led to a breach of Mr Brown’s rights under the Bill of Rights.
Compensation
[100] We express no view as to when (if ever) compensation or financial relief would be an appropriate remedy for breach of “fair trial” rights. We also express no view as to how compensation should be measured in this area, assuming the compensation remedy to be appropriate. How remedies for breaches of the Bill of Rights should be synthesised with existing causes of actions, such as malicious prosecution and false imprisonment at common law, and their remedies, will require careful development case by case. We prefer to leave those difficult questions to cases where the resolution of them would have a practical consequence for the parties.
[101] Having said that, we acknowledge the strength of the views expressed by William Young J in his separate judgment at [126]-[142].
Delay
[102] Finally, we deal with the Crown’s assertion that Mr Brown’s claim based on the 6 September decision should have been dismissed on the grounds of delay.
[103] The factual background to this issue is as follows. A statement of claim was filed in the High Court at Auckland on 24 June 1998. A purported copy of that statement of claim was served on the Crown shortly thereafter. But in fact the document served was not a true copy of the statement of claim filed. The mistake was not discovered until day 1 (28 May 2002) of the trial before Glazebrook J.
[104] There were some differences between the statement of claim as filed and the copy served on the Crown. The statement of claim as served referred, so far as the allegations against the DLSS were concerned, only to Mr Rogers’s application of 25 July 1995 and to his follow-up on 10 August: see [67].No mention was made of Mr Rogers’s later approaches to the DLSS, and in particular there was no reference to Mr Rogers’s letter of 30 August resulting in the 6 September decision. The statement of claim as filed was not limited to the applications of 25 July and 10 August 1995. Rather, it referred to the fact that Mr Brown had applied to the DLSS “on at least four occasions in July and August 1995” and to the fact that the DLSS had refused Mr Brown’s “requests to approve the cost of the DNA test”.
[105] When the error was discovered on day 1 of the trial, the Crown claimed that it was prejudiced by the failure to serve the correct statement of claim. The Crown asserted that it had not appreciated that the 30 August “application” was in issue. As a consequence no one had focussed on the 6 September decision. Records concerning that decision had by then, it was said, been lost.
[106] At trial Glazebrook J appears to have dealt with the matter in the following way. The trial proceeded on the basis of the statement of claim as filed, the consequences of faulty service being left for later submission. In her final decision, Glazebrook J noted r 127(2) of the High Court Rules. She was not certain whether an extension of time for service was necessary, but said (at [43]):
If it is necessary to grant an extension of time for service it is hereby granted.
[107] She then went on to reject the defence of delay.
[108] We agree with the result reached by Glazebrook J, but for different reasons. We consider that the failure to serve a true copy of the statement of claim as filed did result, in terms of s 127(2), in the proceeding being deemed to have been discontinued by Mr Brown as soon as the 12 month service period expired. That is to say, the proceeding was deemed discontinued in July 1999. It was necessary, therefore, if Mr Brown wished to continue with the proceeding for him to apply for an extension of time for service under r 128(1). Although it is not entirely clear from the record we have, it seems that Mr Brown did make such an application. That application should have been considered and ruled on immediately. It was not.
[109] We are satisfied that the application for an extension of time for service should have been granted. These are the reasons.
[110] First, although the correct statement of claim was not served promptly, a statement of claim was. The statement of claim that was served did contain details as to the essential nature of the claim. The failure to serve the correct statement of claim was a genuine error.
[111] Secondly, we accept that the power to extend time is exercised only for very good reason where the claim has become time barred: Zaremba v Guardian Trust and Executors Co of NZ Ltd [1968] NZLR 476 and Melgren v Public Trustee [1971] NZLR 681 at 688. But we are proceeding on an assumption at this stage that the Limitation Act does not apply to this proceeding.
[112] Thirdly, while a defence of delay may apply, there was insufficient prejudice to the Crown to refuse an extension of time. The parties’ extensive agreed statement of facts had dealt with Mr Rogers’s letter of 30 August 1995 and with the 6 September decision. While we accept that the Crown may not have focused on the 6 September decision, it well knew that the DLSS’s decision-making process was under attack and it was clear to everyone that the interaction between Mr Rogers and the DLSS did not end on 10 August 1995.
[113] For these reasons, therefore, we are of the view that Glazebrook J was correct in extending the time for service. That does not leave any room for a separate consideration of the defence of delay. The concept of delay in this case is relevant only to the question of whether or not the time for service should be extended under r 128(1). Once it was determined that it was appropriate to extend time under r 128(1), that was the end of the “delay” point. That is because the court had been apprised, ever since original filing, of the scope of Mr Brown’s claim. This is not the normal case where delay is raised as a defence in circumstances where the claim is filed late or where amendments to a claim raising new allegations are made at a late stage.
Two miscellaneous matters
Mr Shaw’s approach to this appeal
[114] The above analysis of this case follows very closely the Crown submissions presented to us, and also is to a very large extent consistent with the approach which found favour with Glazebrook J. And the result, of course, mirrors that which Glazebrook J reached.
[134] As far as I am aware, there have been no decisions in the United Kingdom awarding compensation for those whose convictions have been set-aside for unfairness at trial: this despite the Human Rights Act 1998 permitting the Courts to grant relief for breaches of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In Canada, s 24(1) of the Canadian Charter of Rights and Freedoms provides very generally for relief under the Charter:
Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
But with only rare exceptions (see for instance R v Germain (1984) 10 CCR 232), the Canadian courts have not considered whether they ought to award compensation under the Charter for those whose convictions have been set aside for unfairness at trial. The position is the same in the United States; this is despite the perhaps theoretical availability of a “Bivens claim” for breach of the Constitution, see Bivens v Six Unknown Named Agents of Federal Bureau of Narcotics : 403 US 388 (1971).
[135] In his argument Mr Shaw sought to invoke international human rights jurisprudence.
[136] Article 14(6) of the International Covenant on Civil and Political Rights (“ICCPR”) makes reference to a right to be “compensated according to the law” for persons who have been wrongfully convicted as a result of a miscarriage of justice. This is of no relevance to us given New Zealand’s reservation in respect of this article which is in these terms:
… New Zealand reserves the right not to apply Article 14(6) to the extent that it is not satisfied by the existing system for ex gratia payments to persons who suffer as a result of a miscarriage of justice.
[137] As Mr Shaw pointed out, the European Court of Human Rights, acting under the Convention for the Protection of Human Rights and Fundamental Freedoms awards (sometimes anyway) monetary relief to those who have been convicted following unfair trial processes. Such relief is granted under art 41 which provides:
If the Court finds that there has been a violation of the Convention or the protocols thereto and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.
(emphasis added)
[138] I see the European jurisprudence as being of less significance than the decisions of national courts, including of course the Privy Council. The structure of the Convention, the specific provisions permitting the awarding of “just satisfaction” and the absence of any ability to set aside convictions provide a context in which the European Court of Human Rights is perhaps understandably inclined towards the awarding of monetary relief.
[139] Is it appropriate to express conclusions as to the availability of monetary relief for breach of fair trial rights given that more meritorious claims may arise in the future?
[140] I concede the possibility of circumstances in which the unfairness of a trial might seem to call out for monetary relief by way of vindication or compensation but which might not be within any established principle of law warranting an award of damages (eg for malicious prosecution). Such circumstances are likely to be rare and I do not see the possibility of their occurrence as a reason for not grasping the nettle now. A decision whether damages should be awarded for breach of fair trial rights is best made on the basis of considerations of general application rather than on the possibility of an extreme case arising (for which of course there is always the possible backstop of an ex gratia payment). And, of course, continuing uncertainty will encourage more litigation of this sort (with associated expense and distraction for all concerned).
[141] I would be very sorry to see the courts assert a jurisdiction to award compensation in “exceptional” or “egregious” cases involving breach of fair trial rights. The not entirely happy experience of the courts in this country with claims for exemplary damages suggests that the costs to litigants and the community of such a discretionary head of jurisdiction would be grossly disproportionate to the value of the few, if any, awards likely to be made and to any other public benefits likely to be derived from such litigation.
[142] In my view, the New Zealand courts ought not to award compensation as a remedy for unfair trial process but rather should require such complaints to be raised with either the trial judge or on appeal. I say this for the general reasons which I have already given and for the following somewhat more particular reasons:
(a)The rules as to trial fairness have been developed for the purpose of determining whether appeals should be allowed and not for determining entitlements to compensation. They are therefore not likely to be well suited for application in a compensation context.
(b)The purposes for which rules are used necessarily have an impact on their content. If the rules as to trial fairness are required to serve the dual function of determining whether criminal appeals ought to be allowed and entitlements to compensation, there are likely to be consequential changes in practice to the disadvantage of criminal appellants. It is likely to become harder for appellants to persuade appellate courts that there was unfairness.
(c)In 1990, the legislature did not intend the enactment of the New Zealand Bill of Rights Act to provide for anything like an entitlement to compensation for those subjected to unfair trial process. For the Courts to recognise claims to compensation in relation to unfair trial process would create a fiscal burden on the taxpayer which Parliament can hardly be seen to have authorised.
(d)This is not to deny efficacy to the New Zealand Bill of Rights Act. At the risk of being thought to have adopted too simplistic an approach, I think that the “natural” remedy for breach of fair trial rights is to be found in the jurisdiction of trial and appellate courts rather than by way of damages. This approach is, in effect, the correlative of the Courts’ willingness to exclude evidence obtained in breach of the New Zealand Bill of Rights Act rather than to compensate defendants with money payments.
(e)As pointed out by Lord Hailsham in Maharaj, it is difficult to see why a person who has been convicted following an unfair trial is any more deserving a claimant for compensation than another person convicted following a trial which miscarried for reasons other than State unfairness.
(f)This approach is consistent with the most recent Privy Council jurisprudence.
Solicitors:
Wayne Thompson, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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