Butler v Massey University Albany

[2015] NZHC 2287

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000345 [2015] NZHC 2287

UNDER

the Judicature Act 1908

IN THE MATTER

of the New Zealand Bill of Rights Act
1990

BETWEEN

JESSE WAIARIKI TEMANAVA BUTLER

Plaintiff

AND

MASSEY UNIVERSITY ALBANY First Defendant

NORTH SHORE POLICE Second Defendant

Hearing:	14 September 2015
Appearances:	Plaintiff in person K Laurenson for Second Defendant
Judgment:	22 September 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Tuesday, 22 September 2015 at 1 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Law, Wellington.

Copy to: Plaintiff

BUTLER v MASSEY UNIVERSITY ALBANY [2015] NZHC 2287 [22 September 2015]

[1]      Jesse  Butler  brings  this  proceeding  against  the  first  defendant  Massey University Albany and the second defendant North Shore Police.   However, when the hearing began Mr Butler accepted that he had not served Massey University Albany.  There is no proof of service on the file, and Mr Butler accepted at the outset that he could not succeed against Massey University.  Accordingly the claim against Massey University Albany is dismissed.   This means that it is not necessary to consider the first two causes of action in the statement of claim, which were directed against that defendant.

[2]      The third and fourth causes of action are against the North Shore Police.  I set out the pleading in the statement of claim:

THIRD   CAUSE   OF  ACTION   BY   PLAINTIFF  AGAINST   THE SECOND DEFENDANT: TORTURE

20.  The second defendant  deliberately did not fully meet the  minimum standards in criminal procedure by not informing the plaintiff on the charge of his arrest and hand-cuffing.

21.  The second defendant deliberately did not read the plaintiff his rights.

22.  The second defendant deliberately did not allow the plaintiff to make a call to a lawyer.

23.  The second  defendant  deliberately did not provide a  doctor for  the plaintiffs worsening concussion despite saying so.

24.  The plaintiff was driven from the North Shore Police station to the Waitakere Police station, going in-and-out of consciousness and neck pins and needles from the prolonged choke and pressure holds.

25.  The second defendant deliberately lied about his rank, claiming to be a sergeant when the plaintiff kept on asking to see the sergeant because of the cruel and torturous treatment.

26.  The impersonation occurred twice with two different police officers.

27.  The second defendant deliberately made the plaintiff sign documents with signatures that were just a scribble, as the plaintiff was heavily concussed and unbalanced by the neck injury sustained by the attack, and couldn’t even see straight.

28. The second defendant deliberately prolonged the time spent by the plaintiff in the cells, knowing the plaintiffs condition and the need for medication.

FOURTH  CAUSE  OF  ACTION  BY  PLAINTIFF  AGAINST  THE FIRST AND SECOND DEFENDANTS:  MALFEASANCE

29.  The first and second defendants conduct and process was deliberate and co-ordinated, and they knew it was. This amounts to malfeasance of the worst kind in breach of the plaintiffs civil and political rights as written and intended in the New Zealand Bill of Rights Act 1990.

WHEREFORE THE plaintiff claims: (a)   Compensation/Damages:

(i)    of  a  compensatory  nature  against  each  of  the  first  and  second defendants in the sum of $100,000.

(b)   Interest at such rate and for such period as the Court thinks fit.

(c)   Costs on a solicitor and client basis, or on such basis as the Court thinks fit.

The causes of action

[3]      The statement of claim third cause of action pleading consists of a series of factual statements, but does not obviously contain a cause of action.  The closest is perhaps an alleged breach of the right contained in s 9 of the New Zealand Bill of Rights Act 1990:

9     Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

[4]      The fourth cause of action if read very generously could be seen as setting out a claim based on misfeasance in public office.

Background

[5]      On 17 February 2014 there was an incident in Arran Road, Browns Bay. Mr Butler  lived  in  that  street.    He  was  visited  by  a  Mr  Callum  Blair  who  on instructions  from  Massey University,  was  seeking to  serve  a trespass  notice on Mr Butler.  Mr Butler had been angered by Mr Blair and there had been abuse and physical contact.   Mr Blair called the Police.   Two officers, Sergeant Sagar and Sergeant Turner arrived at about midnight.  When they arrived Mr Blair, who was a

security guard employed by Massey University, was holding Mr Butler.   They deposed that Mr Butler was shouting abuse at Mr Blair.

[6]      It is the events that followed the arrival of the Police that are the subject of the remaining causes of action.

[7]      Mr Butler provided a brief of evidence which became his evidence-in-chief, and gave evidence briefly and was cross-examined.  The broad scheme of events is not contentious.  He was being held by Mr Blair when the Police arrived.  He was upset (the Police say he was extremely abusive).  Mr Butler was arrested and placed in the Police car.  He was then driven to the North Shore Police Station.  He was held there for a while and then driven to the Henderson Police Station.  He was ultimately released from the Henderson Police Station on the basis of Police bail at 4.18 am that morning.

[8]      Mr Butler does not make any allegations of being physically manhandled by the Police.  His submissions focussed on contradictions in the evidence of the Police and his claim that in relation to some of the details of events as outlined by the police officers, they were wrong.   He emphasised the fact that he was not told about his rights under the Bill of Rights Act when he was initially arrested, and ultimately that he was informed of these while he was at the Takapuna Police Station.

[9]      Four police officers gave evidence: Senior Sergeant Stefan Sagar, Sergeant Brent Kearney, Sergeant Kenneth Turner, and non-sworn police officer Charlie Hiku. Their evidence did not in material ways ultimately differ very much from that of Mr Butler, and he did not in cross-examination challenge most of what they said.

[10]     I am satisfied that the Police on arrival found Mr Butler to be both very angry and very abusive.  Sergeant Turner described him as being abusive the whole time until arrival at the Takapuna Police Station, yelling and screaming.  He stated that the abuse he received was continuous and the worst he had ever had in his 10 years in the Police.  He stated that when he arrested him he advised him that he was under arrest for assault, but did not advise him of any other rights because he was being continually abused.  Any advice of rights would have been in the context a waste of

time.   He was advised of his other rights after he calmed down, at the Takapuna

Police Station.

[11]     There is an area of contention between Mr Butler and police officers, which was the state of Mr Butler’s physical condition at the time.  The police officers and the Police record do not record him being in a condition where he was suffering from any injuries at the hands of Mr Blair.  Mr Butler, on the other hand, says that he had been quite severely injured and concussed by Mr Blair.  The Police notes taken at the time record no such thing.

[12]     Mr  Butler  says  that  he  fell  unconscious  in  the  car  when  he  was  being transported from the Takapuna Police Station to the Henderson Police Station.  The Police evidence and their records show on the other hand him having fallen asleep.

[13]     Mr Butler was ultimately prosecuted for his actions that night and convicted. That prosecution had its own history, and there was a proceeding in this Court relating to it.  However, this claim and that claim do not in any material way overlap.

Analysis

[14]     It must be recorded first that there is no evidence to support a number of the allegations.  Insofar as it is implied in para 24 that the Police were responsible for making Mr Butler go in and out of consciousness with prolonged choking pressure holds, it became clear when Mr Butler gave his evidence that he did not intend this at all.  His condition had been caused by the assaults of Mr Blair, not by anything the Police were doing.

[15]     Second, there was no evidence that either Sergeant deliberately lied about his rank.   They had both passed their sergeant’s exams but were awaiting formal confirmation of their position and therefore were not wearing stripes.  There is no evidence that any police officer improperly tried to get Mr Butler to sign documents with signatures that were just a scribble, and there is no evidence that the Police deliberately prolonged the time Mr Butler spent in the cells.

[16]     I find as a fact that the Police did not exercise any force against Mr Butler, save for that reasonably necessary to handcuff him and get him into the Police car.  I accept the Police evidence that Mr Butler’s excited state and his consistent verbal abuse meant that any reading of rights was a pointless exercise, and this remained the case until he calmed down at the Police Station on learning that one of the Sergeant’s was a former soldier.

[17]     Section 23(1)(a) provides as follows:

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

[18]     I find that the obligation under s 23(1)(a) to inform a person at the time of his arrest for the reason for it was discharged by the Police at the time of arrest.  Section

23(1)(b) provides that everyone who is arrested shall have the right to consult and instruct a lawyer without delay.  There is nothing to indicate that the Police did not extend to Mr Butler that right.  Equally, there is nothing to indicate that the Police did not extend to him the right under s 23(1)(c) to have the validity of the arrest or detention  determined  without  delay  by  habeas  corpus.    The  evidence  is  that Mr Butler, after his arrest, was processed and released as soon as possible, given his previously excited state.

[19]     No statement was taken from Mr Butler, thus there is no issue that arises about him being informed of the right to refrain from making any statement, or being informed of that right.

Analysis of breach of Bill of Rights

[20]     Section 23(5) provides that everyone deprived of liberty should be treated with humanity and with respect for the inherent dignity of the person.  Having heard Mr Butler and the police officers I form the view that Mr Butler was treated with humanity and with respect by them.  They had to exercise some force and be pre- emptory with him because he was, I find, entirely out of control on their arrival.  He

was filled with rage against Mr Blair and his anger turned to abuse of the Police as well on their arrival.

[21]     There is nothing in their behaviour that comes remotely close to a breach of the right not to be subjected to torture or cruel treatment.  Section 9 was described by the Supreme Court in Taunoa v Attorney-General1  as relating to actions that are “truly  egregious”,2   and  that  are  “to  be  utterly  condemned  as  outrageous  and

unacceptable in any circumstances”.3

[22]     For the reasons that I have given the actions of the Police fall far short of being torture or cruel treatment.

Analysis of malfeasance claim

[23]     Assuming that Mr Butler is referring to the tort of misfeasance in public office, it is necessary to consider the elements of the tort as set out in Garrett v Attorney-General:4

(a)       The defendant must be a public officer.

(b)The defendant must have acted deliberately and unlawfully in the exercise or purported exercise of his or her office.

(c)      The defendant must have acted with malice towards the plaintiff, or with knowledge or reckless indifference that his or her conduct was unlawful and was likely to injure the plaintiff.

(d)      The plaintiff must have suffered damage caused by the defendant’s

actions.

[24]     Insofar as the New Zealand Police is a defendant, it could generously be called a public officer.  However, there is a complete absence of proof of any of the

1      Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

2      At [297] per Tipping J, with whom Henry J agreed (at [383]).

3      At [170] per Blanchard J, with whom McGrath J agreed (at [339]–[340]).

4      Garrett v Attorney-General [1997] 2 NZLR 332 (CA) at 348–350; Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thompson Reuters, Wellington, 2013) at 1023.

other three aspects of the tort.   There is nothing to indicate that the Police acted unlawfully in the exercise of their office, that they acted with any malice towards Mr Butler, or that he suffered any particular damage caused by their actions, save for the fact of course that he was ultimately prosecuted for his actions that night.

Conclusion

[25]     Mr Butler presented his evidence and his submissions in a courteous and calm manner.  However, his claim is not made out and by a very wide margin.  The Police  acted  reasonably  on  the  night  in  question,  and  did  not  breach  any  of Mr Butler’s rights.

Late service

[26]     Through a courier error the statement of defence was served late.  Mr Butler was  not  prepared  to  waive  this  event.    However,  a  statement  of  defence  was ultimately filed and Mr Butler has had ample notice of this hearing.  Under r 1.19 of the High Court Rules I grant an extension of time for the service of the statement of defence to 24 April 2014, when service actually occurred.

Result

[27]   The claim against the first defendant is dismissed as unserved, without opposition from the plaintiff.

[28]     The claim against the second defendant is dismissed on its merits.  Judgment is entered for the North Shore Police on that claim.

Costs

[29]     I reserve the question of costs.   If they cannot be resolved, and the North Shore Police seek costs, it is to file submissions within 14 days, and Mr Butler is to file submissions in reply in a further 14 days.

……………………………..

Asher J