Clayton v Currie
[2018] NZHC 1898
•30 July 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2011-409-1178
[2018] NZHC 1898
BETWEEN VINCENT JAMES CLAYTON
First Plaintiff
LYNDA JOYCE WESTBURY
Second PlaintiffAND
PHILIPPA ANNE CURRIE
First Defendant
RAYMOND DONNELLY & CO
Second DefendantTHE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
THE ATTORNEY-GENERAL
Fourth Defendant
CIV-2013-409-1441 BETWEEN
PETER LLOYD MACHIRUS
First PlaintiffNADIA MAVANA PELENATO
Second PlaintiffGARY GEORGE MORELL
Third PlaintiffAND
PHILIPPA ANNE CURRIE
First Defendant
RAYMOND DONNELLY & CO
Second DefendantTHE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
CLAYTON & ANOR v CURRIE; MACHIRUS & ORS V CURRIE & ORS [2018] NZHC 1898 [30 July 2018]
THE ATTORNEY-GENERAL
Fourth Defendant
Hearing: 25 June–4 July 2018 Counsel:
Plaintiffs in Person
J C Pike QC and S K Barr for Defendants
Judgment:
30 July 2018
JUDGMENT OF CHURCHMAN J
TABLE OF CONTENTS
What is the case about? [3]
Disclosure [9]
The Operation Rhino defendants’ concerns [27]Assault charges [28]
The Machirus requests [38]
Did an operative inducement exist? [65]
Custody clearances [87]
Tort liability [98]
Misfeasance in public office [101]
Analysis [118]
Witness immunity [125]
Deceit [145]
Analysis [152]
Malicious prosecution [154]
Bill of Rights Act damages [172]
Breach of NZBORA [175]
Are Baigent damages available for a breach of the right to fair trial? [195]
Analysis [211]
Public law damages [214]
If damages were available, would this have been an appropriatecase to award them? [226]
Conclusion [237]
Costs [239]
[1] This case is a sequel to, and hopefully the conclusion of, events which commenced as long ago as September 2004 with a Police covert operation named Operation Rhino.
[2] The plaintiffs were all arrested and charged with various dishonesty offences as a result of that operation. Three were convicted. Two spent time in prison and one completed a sentence of community work before the Court of Appeal quashed the convictions on the ground that there had been a miscarriage of justice. The Crown elected not to proceed with a retrial.
What is the case about?
[3] In these proceedings, the plaintiffs seek damages against the defendants in tort (misfeasance in public office, deceit and malicious prosecution) and for breach of the New Zealand Bill of Rights Act 1990 (NZBORA), for what they say were the intentional and malicious actions of the prosecutor.
[4] Two separate proceedings have been consolidated and heard together. The first, CIV-2011-409-1178, involves claims by the plaintiffs, Vincent Clayton and Lynda Westbury, and they were initially commenced in 2011. The second set of proceedings, CIV-2013-409-1441, involves the plaintiffs Peter Machirus, Nadia Pelenato and Gary Morell. Those proceedings were commenced in August 2013.
[5] The reason that these matters have taken so long to get to hearing is that there have been a number of strike-out and other interlocutory applications, appeals and cross-appeals up to and including applications for leave to appeal to the Supreme Court.1
[6] There were difficulties with the pleadings which needed to be amended and also with the plaintiffs’ compliance with discovery directions which resulted in orders that all claims for special damages (other than those advanced by Mr Clayton) were not able to proceed.
1 Machirus v Commissioner of Inland Revenue (2007) 23 NZTC 21, 255; R v Machirus [2007] NZCA 120; Solicitor-General v Machirus HC Christchurch CRI-2005-409-177, 28 June 2007; Solicitor-General v Machirus HC Christchurch CRI-2005-409-172, 31 July 2007; Machirus v Commissioner of Inland Revenue [2007] NZCA 374; Solicitor-General v Machirus DC Christchurch CRI-2007-009-12895, 18 April 2008; R v Machirus [2008] NZCA 477; R v Machirus [2009] NZCA 95; Morell v R [2010] NZCA 570; Morell v R [2011] NZSC 42; C v Legal Complaints Review Officer [2012] NZHC 2085; C v Legal Complaints Review Officer [2012] NZHC 3528; Clayton v Currie [2012] NZHC 1475; Clayton v Currie [2012] NZHC 2777; Clayton v Currie [2015] NZHC 1044; Clayton v Currie [2016] NZHC 2815; Clayton Currie [2017] NZHC 1302.
[7] The focus of both sets of proceedings is on actions taken by the first defendant, Ms Currie, who was the prosecutor in the trial which took place in July 2007. The first defendant was held by the Court of Appeal to have breached her obligations to make full disclosure of a sentencing indication given in the District Court at Wellington on 31 May 2007 to L (a witness in the Operation Rhino proceedings against the plaintiffs) who had initially been a defendant in these proceedings.
[8] Because the disclosure of the sentencing indication is at the very heart of these proceedings, it is necessary to set out in some detail what actually occurred.
Disclosure
[9] The sentencing indication was unconnected with the offences that were the subject of the Operation Rhino prosecutions and, other than one charge of male assaults female which had occurred in Christchurch prior to Operation Rhino, related to a variety of offences committed in the Wellington area in respect of which L had been proceeded against summarily in the District Court.
[10]L had been charged with numerous offences as a result of Operation Rhino.
[11] In April 2005, prior to trial, L pleaded guilty to 18 counts of burglary, four of theft, five of receiving and one of converting a motor vehicle arising from Operation Rhino. He agreed to co-operate with the Police and give evidence against the other defendants.
[12] L was sentenced by Judge Kelly in the District Court at Christchurch on 27 May 2005. For the pleas of guilty and assistance given to the Police, L received a 50 per cent discount on a starting point of six and a half years’ imprisonment resulting in him being sentenced to three years three months’ imprisonment in respect of the 28 indictable offences. L was sentenced prior to depositions. At the time of sentence, the Crown submitted a report prepared by the Police detailing the co-operation that L had provided. The fact that L received such a discount on sentence was disclosed to the other defendants.
[13] The depositions in relation to the 11 Operation Rhino defendants took an unusually long time and were held in two parts. Firstly, between 26 September- 10 October 2005, and then between 6-14 March 2006. The Crown witnesses were extensively cross-examined.
[14] The first Operation Rhino trial took place in October 2006 but had to be aborted after some six weeks when Mr Machirus, one of the defendants, became unwell.
[15] The second trial took place in July 2007. The Crown called L to give evidence. By this stage he had served the sentence of imprisonment he had received for the Operation Rhino offences and had been released on parole. However, he had committed further offences in the Wellington area after his release and had been arrested.
[16] In support of an application for bail made in July 2006, his Wellington lawyer, Eymard Bradley, had provided the District Court with part of a letter that Detective Sergeant McGowan, one of the police officers in charge of Operation Rhino, had written to the Parole Board on 18 November 2005 in support of a parole hearing for L.
[17] The Parole Board hearing had taken place on 14 December 2005 and the application for bail was heard on 31 July 2006. At that time, Detective Sergeant McGowan did not know that Mr Bradley had a copy of his letter to the Parole Board and had no idea that part of it was being used in support of a bail application.
[18] L was granted bail but committed further offending and was returned to custody.
[19] On 1 May 2007, L came before the late MR Radford DCJ and made a bail application which was declined. The extract from Detective Sergeant McGowan’s letter to the Parole Board was still on the Court file and was seen by Judge Radford. L came before the Court again on 22 May 2007. Judge Radford refused an application for a lengthy adjournment on the basis that pleas had not been entered to all charges. An informal sentence indication of between two years six months and three years was
given on the charges that L was then facing (the Wellington offending and the Christchurch assault).
[20] On 31 May 2007, L came back before the Court. He entered pleas to all charges. He did not want to be sentenced there and then on the basis that he felt that he was safer as a remand prisoner than as a sentenced prisoner when giving evidence in the forthcoming 2007 Operation Rhino trial. He had been subjected to threats and intimidation by some of the defendants in the Operation Rhino trial and word had been spread among the prison population that he was a “nark”.
[21] Judge Radford gave a firm sentencing indication and acceded to the request to postpone sentencing until 28 August 2007 (after the second Operation Rhino trial).
[22] Judge Radford was aware of the assistance that L was rendering in relation to the Operation Rhino trial as it had been advanced as the basis for adjourning his sentencing. He was also aware of the threats to L’s personal safety.
[23] However, neither the Police prosecutor who appeared in Court in Wellington on 31 May 2007, nor the Crown solicitor at Christchurch, requested that L be given a credit by Judge Radford by way of a discount on his sentence for his co-operation in the forthcoming Operation Rhino trial.
[24] Indeed, L’s counsel, Eymar Bradley, did not make such a submission either and raised the issue of L giving evidence solely in the context of seeking to have the sentencing deferred so that L could remain a remand prisoner.
[25] The notes of Judge Radford’s sentencing indication on 31 May 2007 were typed up and signed by him.
[26] It is that sentencing indication, and what happened to it, that is central to the plaintiffs’ claims in these proceedings.
The Operation Rhino defendants’ concerns
[27] The Operation Rhino defendants were obviously aware that L had received credit for assisting the Police when he was sentenced in relation to his Operation Rhino offending. He was cross-examined on that at the first trial and on any possible motivation to lie. Prior to the second trial, they had learnt that L was appearing before the Court in Wellington on further offending. Mr Machirus in particular had long held suspicions about whether L had received some benefit in relation to the assault case in return for his giving evidence in the Operation Rhino trial. Mr Machirus knew more about the assault charge than anyone else, including Ms Currie, because he knew the victim and had spoken to her about the matter. He ultimately arranged for her to obtain and provide him a copy of the Police file relating to that matter. He received this on the eve of the 2007 trial.
Assault charges
[28] At the depositions, Mr Machirus, who represented himself, had questioned the Police officers giving evidence about the Christchurch assault matter involving L. The officers knew nothing about the matter and Mr Machirus formed the view that they were covering something up.
[29] As a result of the questioning during depositions, Detective Senior Sergeant McGowan made enquiries and discovered that the Police officer who had taken the assault complaint had sat on the file for an extended period of time doing nothing about it. Senior Sergeant McCoy was the officer-in-charge of the section dealing with this matter.
[30] In the course of the hearing of this case, both Mr Machirus and Mr Clayton put to DSS McGowan in cross-examination a jobsheet created by SS McCoy. The version of the jobsheet presented to him gave the impression that DSS McGowan had approached SS McCoy in December 2005 about the assault. This was potentially relevant because DSS McGowan’s evidence was that when he gave evidence at the depositions in March 2006 he knew nothing about this matter.
[31] Mr Machirus believed that DSS McGowan had committed perjury and submitted as much to Judge Crosbie during the second trial. DSS McGowan was cross-examined on this matter in these proceedings. If the version of the document put to him by the plaintiffs in these proceedings was correct, then that would have cast doubt on some of his evidence.
[32] However, the original and unredacted version of the jobsheet was produced by the defendants as Exhibit 9. This showed that the handwritten entry which purported to represent that DSS McGowan had approached SS McCoy had not in fact appeared on the original jobsheet, and that the words that had been redacted from the copy put to DSS McGowan by Mr Machirus and Mr Clayton during cross-examination, confirmed that it was Detective Sergeant Parnell who had talked to SS McCoy.
[33] The basis for submitting that DSS McGowan’s evidence was unreliable therefore evaporated.
[34] DSS McGowan wrote to Mr Machirus on 21 September 2006 to advise him of a decision made by SS McCoy to charge L in respect of the assault. L was initially charged with two charges of assault with intent to injure but these were amended to a single charge of male assaults female to which L pleaded guilty in February 2007.
[35] The reason for the reduction of the charges was that the male victim was unwilling to give evidence and L’s Christchurch counsel, Mr Green, was threatening to apply to have the prosecution stayed on the basis of the two and a half years delay between the reporting of the offence and the laying of charges.
[36] Mr Green had indicated that L would plead guilty to a charge of male assaults female and that is why the original charges were amended.
[37] The evidence disclosed that the first defendant did not have any involvement, at any stage, in the assault charges, and that the detectives involved in Operation Rhino had no involvement in the reduction of the charges. So, even though Mr Machirus maintained right up until his closing submissions in this matter that there was something “fishy” about the reduction in the charges, it is clear that there is an innocent
explanation for it, and it was not in any way connected with the fact that L gave evidence in the Operation Rhino prosecution.
The Machirus requests
[38] Mr Machirus had met with Ms Currie on 17 July 2007, shortly before the second trial, requesting an updated criminal history for L and any additional or new jobsheets regarding contact with him since the last trial. Ms Currie did not have this information so she wrote to Detective Pritchard the same day requesting it. Detective Pritchard provided Ms Currie with the information sought in emails to her of 19, 20 and 23 July and Ms Currie forwarded that information to Mr Machirus and all the other defendants on 23 July.
[39] By email to Ms Currie on the afternoon of 25 July, one of the defence lawyers requested summaries of facts relating to L’s new offences and the dates of the offences. Ms Currie replied the next morning giving her understanding that they had been committed after the Operation Rhino offences and saying she did not have summaries. The same day, she emailed Detective Pritchard asking for this information.
[40] Detective Pritchard emailed the dates of the offences on the afternoon of 26 July. He was unable to access the summaries of facts. Ms Currie emailed the information to the defence lawyer the following morning, Friday 27 July.
[41] On 9 August 2007, a lawyer for one of the defendants wrote to Ms Currie requesting further specific information about L, including the number of remands, the reasons for those remands and “[t]he details of any arrangement between the Police and [L] which may have an effect on the outcome of the further charges, including any arrangement which has affected the number of charges which [L] currently faces”.
[42] The lawyer had apparently unsuccessfully tried to obtain this information himself directly from the Wellington District Court.
[43] The specific requests made in this letter are important because they provide the context for the much criticised subsequent letter of 17 August 2007 that Ms Currie sent to all the defendants and to the District Court.
[44] Other than the information about remands, what was specifically being sought was information about an arrangement which might have been entered into between the Police and L to drop or reduce charges. The particular suspicion was the one generated by Mr Machirus that a deal must have been done in relation to the Christchurch assault charge.
[45] On 14 August 2007, Ms Currie faxed the District Court at Wellington a letter requesting answers to the questions that the lawyer had asked her. The letter was marked urgent and the Court was advised that L was due to give evidence on 20 August.
[46] On 17 August, the Wellington District Court faxed Ms Currie some of the information requested, namely the list of charges and a copy of the sentencing indication given by Judge Radford on 31 May 2007.
[47] After reviewing that information over the weekend, Ms Currie sent a letter dated 21 August 2007 to all the defendants and the Court. That letter read:
1.As requested, I have carried out inquiries in relation to [L]’s pending sentencing hearing in Wellington.
2.[L] pleaded guilty to the excess breath alcohol and dangerous driving charge on 9 January 2007. He pleaded guilty to the charge of male assaults female on 22 February 2007. The assault was originally a more serious charge. It would seem from the file that the officer in Christchurch holding that file did not action it for a considerable period of time, due to work pressure. When it was finally called in Wellington Court, [L]’s solicitor sought a stay on the basis of the delay. The Wellington Crown recommended that the charge not be pursued. Negotiations then between the Wellington Crown/Police and Defence Counsel resulted in a plea to the current charge.
3.Judge Radford gave a sentencing indication on 22 May, suggesting 2½ to 3 years imprisonment was appropriate on all matters.
4.[L] pleaded guilty to the remaining counts on 31 May 2007.
5.[L]’s counsel suggested sentencing should be after the Operation Rhino trial, the reason being that if [he] was a sentenced prisoner, there were concerns regarding his safety. As a remand prisoner however, he has enhanced safety and a further remand was therefore sought by his counsel until after Operation Rhino.
6.Judge Radford was prepared to agree with that and he has recorded:
“I record that I have indicated the fashion in which I intend to sentence, and my reason for doing so is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch. In other words, [L] will not influence the sentence that is to be imposed by his conduct in Christchurch. I am making this point clear, as much for [L]’s protection, and so that the prosecution are not left in a position where it might be suggested that he may have to gain some advantage in these proceedings by the evidence that he may give”.
7.Sentencing is scheduled to occur on 28 August 2007.
[48] As can be seen, the letter addressed and responded to the particular queries that had been raised with Ms Currie.
[49] On 20 August 2007, there had been a Chambers hearing before Judge Crosbie in relation to the admissibility of evidence. Mr Machirus (representing himself) had raised the fact that he had obtained the Police file on the Christchurch assault charge the prior evening and had gone into extensive detail about the contents of the Police file, suggesting that three detectives who had given evidence in the first trial had lied about their knowledge of the assault charge. This was when he had specifically alleged that DSS McGowan had committed perjury.
[50] Mr Machirus also asserted his belief that the Police had given L an inducement by reducing what he described as a home invasion charge down to male assaults female. He further alleged that it was “obvious that the Crown have had more conversations with (L) than they have made out”.
[51] Judge Crosbie regarded these allegations as being serious and asked the Crown to make enquiries about the assault matter.
[52] Given the sudden and sharp focus on the issue of whether L had received an undisclosed inducement in respect of the assault charge, it is unsurprising that clarification of what had actually happened in respect of this charge was the first point addressed by Ms Currie in her letter of 21 August 2007. The letter also provided the date of the entry of the guilty pleas and explained the reasons that Judge Radford had adjourned the sentencing. This was all a logical and appropriate response to specific queries that had been raised.
[53] The letter concluded by setting out [6(b)] from Judge Radford’s sentencing indication. It is understandable why Ms Currie might have thought that this was the most relevant part of the sentence indication particularly given Mr Machirus’ claims about there being a secret inducement in relation to the Christchurch assault charge. However, [6(b)] does not convey a complete account of all that Judge Radford said in the sentence indication.
[54] Judge Radford’s sentencing indication is capable of more than one interpretation and there appears to be a contradiction between his comments in [6(b)] that were set out in Ms Currie’s letter and what he said in [4].
[55]The entire sentencing indication read:
[1] [L] has come back before the Court for plea and sentence on a large number of charges. He has appeared on a number of occasions on these charges but because there was so many of them and they extended over such a length of time, considerable effort was required for Mr Bradley to discuss matters with [L] and the prosecution and try to resolve all outstanding issues.
[2] On an earlier occasion [L] wished to have matters dealt with in such a way that his status within the prison was altered, for the reason that he is involved in a trial in Christchurch, the details of which are known both to the prosecution and to the defence and which I do not proposed to detail within this memorandum, save to say that what is to transpire is very much to his credit.
[3] The matter has come back this morning following a sentencing indication which I gave on 22 May but Mr Bradley reminds me that on that day I gave a sentencing indication then said that that indication was only available so long as pleas were entered and matters tidied up, but if that happened then the actual sentencing could be adjourned.
[4] The sentencing indication I gave was for a final outcome of between two and a half and three years and that is still on the table. I have indicated to both Mr Bradley and Mr Brickell for the prosecution, my reasoning process for reaching that conclusion. My reasoning process is that [L] has a very extensive history of criminal offending and that the offences that he has now pleaded guilty to are serious and have taken place over quite a long period of time and the offences were committed, I think on almost every occasion, while subject to another sentence. Accordingly it seemed to me that, while I am not determining the final sentence at this point, a starting point of something in the region of four to four and a half years was appropriate but then significant discounts had to be given to take account of the guilty pleas which did amount to a significant assistance to everybody because of the complex nature of all of the offending and of course significant discount for the matter which involves the Christchurch trial.
[5] Mr Bradley has advanced this proposition: That plainly [L] is in custody and will remain so. He has to give evidence in Christchurch. If he is a sentenced prisoner, his safety may be in issue. I am told that he has enhanced safety if he is a remand prisoner. Accordingly what is sought is a further remand before sentence is imposed until after the Christchurch case.
[6] I am prepared to agree with that and grant such a remand to 28 August 2007 at 9.15 am but I make the following observations:
a) Mr Brickell has only unfortunately just been handed the file and while this morning he could see no reason why that course of action should not be followed, leave is granted to the prosecution to have the matter brought back before me should, on mature consideration, he feel that is appropriate.
b) I record that I have indicated the fashion in which I intend to sentence and my reason for doing that is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch. In other words [L] will not influence the sentence that is to be imposed by his conduct in Christchurch. I am making that point clear as much for [L]’s protection and so that the prosecution are not left in a position where it might be suggested that he may have to gain some advantage in these proceedings by the evidence that he may give.
[7] Accordingly on all matters [L] is remanded for sentence to 28 August 2007 at 9.15am. I see no point in calling for a further probation report given that [L] has been in custody.
[56] It is difficult to reconcile [4] and [6(b)]. Without an understanding of the context in which her letter of 21 August was written, it is hard for someone reading the sentencing indication to understand why Ms Currie didn’t simply append the whole sentencing indication to her letter. She now accepts that she should have done that and that she made an error of judgment.
[57] Paragraph [4] of the sentence indication concludes with Judge Radford noting that a starting point in the region of four to four and a half years was appropriate but that “significant discounts” had to be given for the guilty pleas “and of course significant discount for the matter which involves the Christchurch trial”.
[58] Ms Currie has never provided a convincing explanation for what she thought these words meant. The Court of Appeal in Mr Machirus’ appeal rejected the submission that these words referred to a discount for the guilty plea to the
Christchurch assault saying, “That simply does not make sense”.2 That observation is clearly correct.
[59] Mr Pike QC, in these proceedings, submitted that what Judge Radford had really done was to give L a discount to reflect the fact he had received a hard time in prison and was likely to continue to receive a hard time in prison as a result of his giving evidence for the Crown. That is a more plausible interpretation of these enigmatic comments.
[60] After reading the sentencing notes, Ms Currie formed the view that L had not been given an inducement to testify at the second trial. She expressed that view to Judge Crosbie at the trial and has consistently maintained it since.
[61] That view seems to be based on the assumption that an inducement involves an agreement between the prosecuting agency and a prospective witness, in advance of the witness giving evidence (whether against a co-accused or in an unrelated matter), that, if they co-operate as agreed, they will receive some benefit. The benefit may take different forms. The most obvious being a confidential letter to the sentencing Judge outlining the assistance received and supporting a discount on sentence (exactly as occurred when L was sentenced by Judge Kelly for his Operation Rhino offences). However, it may also encompass an agreement not to prosecute (immunity), to prosecute on only some charges, or to reduce existing charges to less serious ones (as Mr Machirus was alleging had occurred in relation to the assault charge).
[62] Ms Currie knew that no inducement of this type had been offered to L by either the Police or Crown and that Mr Machirus’ allegations to the contrary were baseless. She had obviously not personally been involved in the Wellington sentencing but she and her colleague, Mr Lange, had respectively spoken to L’s Christchurch lawyer (Mr Green) and his Wellington lawyer (Mr Bradley), both of whom were of the view that L had not been offered and was not getting any inducement for giving evidence. L himself was also clearly of that understanding and gave evidence to that effect during the 2007 trial.
2 R v Machirus [2008] NZCA 477 at [13].
[63]As the Court of Appeal noted:3
… if Judge Radford’s sentencing notes were not read fully and the reader simply focussed on the conclusion, then [6](b), read on its own, could be interpreted as the Judge saying that there was no basis for any suggestion that L had something to gain by giving evidence at the retrial of Mr Machirus and his co-accused. It may be that the prosecutor formed that impression and thought that [the 21 August letter] correctly summarised the position.
[64] That seems a fair assessment of what is likely to have occurred, particularly when coupled with the fact that Ms Currie knew for certain that there had been no agreement by either the Police or Crown to support an application for a sentencing discount in relation to the Wellington offences in return for L giving evidence, and that such a request had not even been made by L’s lawyer. This knowledge appears to have blinded her to the possibility that, of his own volition, Judge Radford had created something that could potentially be regarded as an inducement.
Did an operative inducement exist?
[65] One of the critical issues that needs to be addressed in this case is whether or not L was in fact subject to an operative inducement when he gave evidence.
[66]As the Court of Appeal stated:4
It is a well established principle of common law that the Crown must disclose any factor which might operate as an inducement to a witness to give evidence: be it the fact that the witness is a paid police informer; or has obtained a discount in anticipation of co-operation; or has had a charge reduced to a lesser charge; or has received an immunity; or any other inducement factor.
[67] The evidence of witnesses subject to an inducement is not automatically excluded.5 The Court has suggested that the following questions should be asked:6
(i)Does an operative inducement on the accomplice exist?
(ii)If so, what is the power of that inducement?
3 At [15].
4 At [16].
5 R v Weightman [1978] 1 NZLR 79 at [81]. See also Taylor v R (1996) 14 CRNZ 334 at [341]-
[342] and R v Turner (1975) 61 Cr App R 66 at [78]-[79].
6 R v Royal (1993) 10 CRNZ 266 at 277.
(iii)Is that inducement likely to give rise to a real danger that false evidence will be given by the accomplice?
(iv)Will that inducement thereby cause a real danger of injustice to the accused?
[68] The Solicitor-General Prosecution Guidelines contain the following requirement:7
Disclosure of any inducement or immunity given to a witness
16.10 The defendant should always be advised of the terms of any immunity from prosecution given to any witness. Likewise the existence of any other factor which might operate as an inducement to a witness to give evidence should be disclosed to the defendant. This includes the fact that the witness has been paid for providing information (R v Chignell [1991] 2 NZLR 257).
[69] Mr Pike, in these proceedings, mounted a spirited argument that the comments in [4] of the sentencing indication did not amount to an inducement. He was critical of the submissions made by Mr Machirus’ counsel to the Court of Appeal on the topic of inducement. The relevant findings of the Court of Appeal on this point say:8
[Mr Machirus’ counsel] submitted correctly that where a convicted person is given a discount for co-operating with a police prosecution and is giving evidence, whether or not he is sentenced before the trial, as he should be, that discount is a continuing inducement to co-operate. If he subsequently refuses to give evidence, the Crown have a remedy. The Solicitor-General can seek leave to appeal out of time against the sentence on the grounds that the sentencing Judge gave excessive credit based on the false premise that assistance would be provided.
[70] Mr Pike submitted that the acknowledged sentence discount referred to in [4] of the sentencing indication “was not a judicial response to any inducement agreement”.
[71] He was particularly critical of the submission made by Mr Machirus’ counsel in the Court of Appeal who had submitted:
… there was an obvious inducement and improper pressure on L to give evidence against the appellant untruthfully, he probably believing that the offered discount may not be available if he were to renege on giving evidence ...
7 Crown Law Solicitor-General’s Prosecution Guidelines (1 July 2013).
8 R v Machirus, above n 2, at [17].
[72] There is much force in Mr Pike’s criticism of this submission. There was no “improper pressure” put on L by the Crown to give evidence. Neither the Crown nor Police had any involvement in the discount offered by Judge Radford nor any advance knowledge that he was going to give a discount. It certainly cannot be said that it was Judge Radford who applied “improper pressure”. There is no-one else who could have applied pressure, improper or otherwise. Neither is it credible to claim that L “probably believed” that the offered discount might not be available if he were to renege on giving evidence. Such a proposition is contradicted by all the relevant evidence. In [6(b)], Judge Radford unequivocally stated that nothing that L did at the trial would affect the sentence. L’s evidence at the trial was that he understood that this was the effect of [6](b) and he did not believe he had received any inducement. That was also the view of his lawyer.
[73] Mr Pike further submitted that the discount could not have been an operating inducement at the time L gave evidence at the trial because there was effectively nothing the Crown could do if L did not co-operate at trial as expected.
[74] In relation to the Court of Appeal’s acceptance of Mr Machirus’ submission that, if he refused to give evidence, the Crown had a remedy, Mr Pike pointed out that, on the unusual facts of this case, this was not so. This was because neither the Crown nor Police had reached an agreement with L in relation to the Wellington charges that he would do anything. Therefore, it could not have been established that L was in breach of any agreement if he did not co-operate. That submission is correct.
[75] Mr Pike also pointed out that the Crown had no involvement in the Wellington matters as they were all laid summarily and dealt with by the Police.
[76] At least in theory, the Crown could have asked the Police to apply to have L resentenced had he not given evidence at the 2007 trial. However, the fundamental problem still remained that, because there had been no offer either by the Police or the Crown in return for L’s co-operation, even the Police would not have been able to apply for a resentence. L’s lawyer had not requested of Judge Radford any sentence discount on that basis and had certainly not received any support from the Police in such a submission.
[77] It therefore does seem that the propositions put to the Court of Appeal and recorded at [17] of their decision were not factually correct.
[78] The discount offered by Judge Radford in the sentencing indication emanated unilaterally and solely from him. It was not intended by Judge Radford to induce L to give evidence.
[79] When both [4] and [6(b)] are read together, it appears that the discount was offered by Judge Radford not for the fact that L was going to give evidence, because the Judge was clear that whether or how L gave evidence would not affect the discount (“In other words, [L] will not influence the sentence that is to be imposed by his conduct in Christchurch”), but to reflect the fact that as a result of his co-operation with the Police, L had been, and would be, subject to intimidation.
[80]The critical finding of the Court of Appeal as to miscarriage of justice was:9
We are satisfied that the accused were placed in an unfair disadvantage by the non-disclosure of the sentencing notes of 31 May, as were the Judge and jury and that a miscarriage of justice resulted. There is no doubt that had the Judge and jury been informed of the presence of the discount they would have been much better informed of the context within which L was to give and gave evidence.
[81] This Court is bound by the Court of Appeal’s finding that there was a miscarriage of justice. However, as a result of the extensive evidence as to the circumstances behind the giving of the sentence discount, I accept the arguments advanced by the defendants to the effect that there was a tenable argument that there was no effective operating inducement on L to give evidence because no agreement had been reached between the Crown or Police to that effect and therefore there was nothing that could have been breached so as to justify the Police seeking to have L resentenced on the charges dealt with by Judge Radford if he did not give evidence as anticipated.
[82] Undoubtedly, as the Court of Appeal found, the Judge and jury would have been better informed if they had received a copy of the full sentencing report, and
9 At [21].
Ms Currie made an error of judgement in not disclosing it. However, her actions must be viewed in light of there being a credible argument to the effect that there was no inducement of the type referred to in the Solicitor-General’s prosecution guidelines, and no continuing inducement to co-operate. That affects whether or not it can be claimed that she was not acting in good faith, or acting with malice.
[83]Thomas J has also noted that:10
While neither statement of claim particularises the alleged inducement or by whom it was offered, both focus on the non-disclosure of the Sentence Indication. Furthermore, it is not essential to prove L was in fact offered a formal inducement as contemplated by the defendants or that Ms Currie was party to this arrangement. At issue is the failure to discharge the duty of disclosure. It would be sufficient if the first defendant sought improperly to protect the credibility of L.
[84] Although the plaintiffs still maintained their claims that L had received an inducement, it was clear that their claims were wider than that. As Thomas J also noted, the plaintiffs argued that Ms Currie:11
… must have appreciated [the significance of the sentencing indication] and she failed to disclose [it] without reasonable or lawful excuse, knowing it would have a material impact on the plaintiffs’ defence at trial. Furthermore, she wrote a letter which obscured the aspects of L’s sentencing which were obviously important to the plaintiffs’ position as accused at the Second Trial.
[85] Therefore, the fact that there may not have actually been an operating inducement is not the end of the matter. There was ambiguous material that was potentially relevant which Ms Currie now accepts that she should have disclosed.
[86] Provided that the plaintiffs are able to establish malice and that the actions complained of caused them loss, they may have a tort remedy. Whether they meet those criteria is discussed below.
Custody clearances
[87] In addition to relying on Ms Currie’s failure to provide the full copy of the sentencing indication as evidence of her acting intentionally and maliciously, the
10 Clayton v Currie [2017] NZHC 1302 at [60].
11 At [61].
plaintiffs also rely on Ms Currie’s actions in relation to “custody clearances” in support of their contention that Ms Currie had a “win at all costs” strategy. It is therefore necessary to examine the facts in relation to custody clearances.
[88] A custody clearance is where a prisoner in custody confesses to offences other than those for which they have already been sentenced. Each of the police districts, at the relevant time, had their own policies about custody clearances but the then Canterbury Police District policy provided for no further action being taken against a prisoner in respect of custody clearances. The policy also provided that offences could only be custody cleared if they met certain criteria including that there was no other evidence linking the prisoner with the offence.
[89] On 14 December 2005, L was interviewed in prison by Detective Pritchard about outstanding Operation Rhino matters and confessed to some 28 burglaries. This led to these matters being custody cleared.
[90] The Police did not initially disclose, either to the Crown solicitor’s office or any of the defendants, the fact that there were to be custody clearances. The first mention of this topic was in a report to the Crown on 27 March 2006 from Detective Pritchard. He said that, as a result of a meeting with L in December 2005, “approximately 25 to 30 offences will be custody cleared”. This information was contained in a 10-page report giving an update on evidence to be given by some 21 separate witnesses in the Operation Rhino matter.
[91] Shortly before the first trial commencing in October 2006, Ms Currie reminded the Police of their obligations to disclose matters such as custody clearances. There was a dispute between Ms Currie and the Police as to whether they were obliged to do that, with the Police taking their own internal legal advice and resisting the direction from Ms Currie. The view of the Police was that the information gained from custody clearances was only used internally for matters like intelligence gathering and statistical purposes for Police use and therefore not relevant to a prosecution and not disclosable.
[92] In the end, Ms Currie remained firm in her view that this information was obliged to be disclosed and it was, shortly before the first trial. This led to a voir dire held on 24 and 25 October 2006 before Judge MacAskill on an application by the 11 Operation Rhino accused for a stay of proceedings for late disclosure.
[93] In a reserved decision dated 30 October 2006, Judge MacAskill declined the application. He found that there had been no bad faith or improper motive on the part of the Police in not earlier disclosing the custody clearances, and that the late disclosure did not cause any unfair prejudice to the accused.
[94] In these proceedings, Ms Currie was cross-examined extensively about her knowledge of the custody clearances. The cross-examination appeared designed to demonstrate that she had known about them earlier than she had told the Court and that she was part of some sort of conspiracy with the Police to suppress them.
[95] These allegations do not withstand scrutiny. While Ms Currie had been alerted in March 2006 that some custody clearances were likely, she had not been involved in the process of custody clearance which was exclusively an internal Police matter.
[96] When, shortly before the first trial, she realised that the Police had not disclosed the custody clearances, she insisted that they did. Far from attempting to suppress the custody clearances, it was as a direct result of her insistence that the existence of the custody clearances was bought to the attention of the Court and the other defendants.
[97] The fact that this information was disclosed late before the first trial was not Ms Currie’s fault. Rather than assisting the plaintiffs’ contention that her actions in relation to the custody clearances support the claims of malice or an intention to harm the plaintiffs, her actions show that she was prepared to override significant opposition from the Police and insist that information that she thought was potentially relevant was properly disclosed.
Tort liability
[98]The plaintiffs have sued for damages both in tort and for breach of NZBORA.
[99] Where such dual claims are made, the approach of the Court has been to assess potential liability in tort first, and then consider NZBORA damages only where the application of tort principles would yield inadequate compensation.12
[100]Accordingly, I will address the claims in tort first.
Misfeasance in public office
[101] A claim in misfeasance in public office is common to all five plaintiffs. The pleadings allege that each of the defendants, jointly and severally, knowingly misapplied their powers and/or authority amounting to an abuse of office. It was also alleged that the first defendant acted with malice towards the plaintiffs or with knowledge that her conduct was unlawful and was likely to injure the plaintiffs.
[102] At least since the case of Garrett v Attorney-General, the elements of the tort of misfeasance in public office in New Zealand have been settled.13
[103]The Court of Appeal in Currie v Clayton summarised them as being:14
(1)Standing: The plaintiff must have standing to sue.
(2)Public office: The defendant must be a public officer.
(3)Unlawful conduct: The defendant must have acted or omitted to act in purported exercise of her public office unlawfully either:
(a)intentionally, that as actually knowing her actions or omission to act were beyond the limits of her public office; or
(b)with reckless indifference as to whether she was acting or omitting to act outside those limits
(4)Intention: The defendant must have so acted or omitted to act either:
(a)with malice towards the plaintiff, that is, with intention to harm the plaintiff; or
(b)knowing her conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or
12 See Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003) at 821 and Manga v Attorney-General [2000] 2 NZLR 65 per Hammond J.
13 Garrett v Attorney-General [1997] 2 NZLR 332 (CA).
14 Currie v Clayton [2015] 2 NZLR 195 at [40] (citations omitted).
(c)with reckless indifference as to whether the plaintiff would be harmed. Subjective recklessness, not objective recklessness, is required.
(Note: (a) is what is often called “targeted malice”; (b) and (c) are often called “non-targeted malice”.)
(5)Resulting loss: The plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff’s claimed loss.
[104] Misfeasance in public office is an intentional tort. It is not a tort actionable per se. The plaintiffs must prove the loss that they say flowed from the alleged wrongful exercise of power. The purpose behind the imposition of this form of liability is to prevent the deliberate injuring of members of the public by deliberate disregard of official duty.15
[105] In relation to the five elements that need to be established before the tort of misfeasance in public office can be made out, the defendants conceded that the plaintiffs had standing to sue and that the first defendant could be said to be a public officer.
[106] The defendants challenged the plaintiffs’ assertion that, in failing to disclose the full sentencing indication and leading the Court and defendants to believe that she had no further relevant information requiring disclosure, the first defendant was exercising a power or duty attaching to the public office.
[107] On a strike-out application in this matter, Priestley J accepted the argument advanced on behalf of the defendants that Ms Currie was not exercising any power or authority during the running of the August 2007 criminal trial.16 The Court had relied on two Australian State Court of Appeal authorities to reach a conclusion that when a prosecutor was appearing in court, she was not exercising any relevant power but rather performing a function of the office by representing the Crown. 17 On the basis of that conclusion, Priestley J struck-out the misfeasance cause of action.
15 Stephen Todd and others The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at [19.2].
16 Clayton v Currie [2013] 1 NZLR 263.
17 Cannon v Tahche [2002] VSCA 84 and Leerdam v Noori [2009] NSWCA 90.
[108] However, the Court of Appeal reinstated it.18 The Court acknowledged the distinction made in the Australian authorities between conduct occurring in Court and preparatory conduct and said:19
Although Ms Currie’s conduct obviously related to the trial, it is at least arguable that it occurred in part outside the courtroom. We agree with the Judge’s view … that there may be liability for actions taken by a prosecutor outside the courtroom.
[109] The Court of Appeal noted the conflict between the Australian decisions and English and Canadian authority. The Court of Appeal observed that the Australian cases involved the practice of solicitors briefing barristers at the private bar to conduct prosecutions.
[110] The Court set out some comments of Spiegelman CJ in Noori where it was said:20
However, a person whose capacity to act is entirely a creature of contract with the executive arm of government is not, in my opinion, thereby constituted a public officer for the purposes of the tort …
Also:
The position of the solicitors, or of his firm, could not be characterised as “a public office”.
Later:
In any event, it is not appropriate to describe the duties of a solicitor representing a party as “public duties” for the purpose of characterisation of the position held by the solicitor as a “public office”.
[111] The Court noted that, in New Zealand, Crown solicitors held prerogative office under a warrant from the Crown and that Ms Currie was one of the prosecutors on the staff of the Christchurch Crown Solicitor. The Court reasoned that her position was arguably closer to that of a Crown prosecutor in England than the prosecuting barrister in either of the Australian cases.
18 Currie v Clayton [2015] 2 NZLR 195.
19 At [43].
20 At [55], citing Noori, above n 17, at [18], [21] and [25].
[112] The Court of Appeal referred to English cases such as Elguzouli-Daf v Commissioner of Police of the Metropolis21 and Jones v Swansea City Council22 where the Courts have reached a different conclusion from that of the Australian Courts.
[113] In Elguzouli-Daf, the plaintiffs had spent a very lengthy period in custody before the prosecutions against them were effectively abandoned. They sued the Crown Prosecution Service in negligence. The CPS is an autonomous and independent agency with the functions of reviewing Police decisions to prosecute and conducting prosecutions on behalf of the Crown. It was headed by the Director of Public Prosecutions who was appointed under the Prosecution of Offences Act 1985 (UK) by the Attorney-General.
[114] The decision in Jones v Swansea City Council is somewhat different, involving a city council exercising a power as landlord. However, the Court there had focused on the fact that the source of the power was a statute and had said:23
… all powers possessed by a local authority, whether conferred by statute or by contract are possessed “solely in order that it may use them for the public good”.
[115] The Court of Appeal also noted that the Supreme Court of Canada, in Odhavji Estate v Woodhouse24 had expanded the scope of misfeasance in public office to include not only conduct involving the exercise of statutory powers but also acts done pursuant to a statutory duty.25
[116] The Court of Appeal noted the observations made in the case of New Zealand Defence Force v Berryman that “the actions of a public officer must have some public character before they can be the subject of a claim for misfeasance in public office”.26
[117] The Court also noted that the High Court in Slavich v Judicial Conduct Commissioner felt unable to exclude the possibility that a Court could hold that a
21 Elguzouli-Daf v Commissioner of Police of the Metropolis [1995] QB 335 (CA).
22 Jones v Swansea City Council [1990] 1 WLR 54 (CA).
23 At [71].
24 Odhavji Estate v Woodhouse [2003] SCC 69, [2003] 3 SCR 263.
25 Currie v Clayton, above n 14, at [47].
26 At [48], quoting New Zealand Defence Force v Berryman [2008] NZCA 392 at [64].
Crown prosecutor when making submissions in Court was exercising a power of her public office.27 The Court of Appeal concluded:28
In no New Zealand case has the Court, after considering the conflicting positions adopted in Australia on the one hand, and in the United Kingdom and Canada on the other hand, opted for the former approach.
Analysis
[118]The Court of Appeal reinstated the misfeasance cause of action and held:29
At trial, it will be for the Judge, in the context of the full factual background of this case, to determine exactly what is the scope of element (3) of the tort, and to decide also whether Ms Currie falls within that scope.
[119] In Garrett v Attorney-General, Blanchard J held that the purpose behind the imposition of liability for misfeasance in public office is to prevent the deliberate injury with members of the public by deliberate disregard of official duty.30
[120] The position of Crown prosecutors in New Zealand is, for the reasons analysed by the Court of Appeal and set out above, more closely analogous to the situation of Crown prosecutors in the CPS in the United Kingdom than the situation of private practitioners undertaking prosecutions in Australia.
[121] Given the existence of the Solicitor-General’s Prosecution Guidelines and the common law duty of disclosure, it can be said that Ms Currie’s actions in relation to the sentencing indication and the subsequent assurances that she gave the Court and the defendants that all relevant material had been disclosed, had a sufficient “public character” to meet the test of involving the exercise of public power.
[122] If the powers relating to disclosure are exercised for the purposes of deliberately injuring members of the public with either a deliberate intention to harm or lack of disregard as to the harm caused, then there is no reason in principle why liability should not exist.
27 At [48], citing Slavich v Judicial Conduct Commissioner HC Hamilton CIV-2010-419-975, 14 July 2011 at [30]-[32].
28 At [49].
29 At [63].
30 Garrett v Attorney-General, above n 13, at 350.
[123] The question in this case is whether it can be said that Ms Currie acted actually knowing her actions or omission were beyond the limits of her public office or whether she was acting with reckless indifference as to whether she was exceeding those limits.
[124] I reject Mr Pike’s submission that the obligations on Ms Currie were somehow altered or qualified by the fact that the defendants could have obtained from the District Court in Wellington the same information she obtained. Once she undertook to obtain that information and, more importantly, assured the Court that she had placed all relevant information before it, she was clearly acting in the exercise of her power as a prosecutor, and the Court and the defendants were entitled to rely on her assurances.
Witness immunity
[125] Mr Pike also submitted that the doctrine of “witness immunity” applied to protect Ms Currie from any liability in tort.
[126]In New Zealand Defence Force v Berryman, the Court of Appeal said:31
Those who give evidence or make submissions to a court enjoy immunity from suit. The purpose of this immunity is not to encourage dishonest or defamatory submissions or perjury; rather it is to protect parties to litigation, along with their counsel and witnesses, from vexatious litigation. There is also an associated purpose of limiting the scope for re-litigation. ...
We recognise that the immunity is limited. It is confined to what is said in court and necessary preliminaries to that (see Darker). It is also merely an immunity from civil suit.
[127]Mr Pike acknowledged that the Court of Appeal in Berryman had said:32
We think that a claim for misfeasance in public office would be available if the Berrymans could show that someone in public office made a decision to withhold the Court of Inquiry report and associated material so as to facilitate the making of submissions to the Coroner that were known to be wrong.
[128] The plaintiffs have endeavoured to bring themselves within this exception to witness immunity and have asserted that Ms Currie’s actions in not disclosing the full
31 New Zealand Defence Force v Berryman, above n 26, at [67] and [68].
32 At [82].
sentence indication were part of an orchestrated plan by her to convict the plaintiffs at all costs and to facilitate the making of submissions by her that she knew were wrong.
[129] Both statements of claim pleaded the same particulars in support of the allegation of malice. These included claims that Ms Currie believed that the plaintiffs were guilty and wanted them to be convicted; she knew that the claimed inducements offered to L would have a bearing on whether or not the plaintiffs were convicted; she knew she had a duty to disclose the actual sentencing indication; she did not disclose the sentencing indication; and she knew or ought to have known that her letter of 21 August was not an accurate representation of the sentencing indication.
[130] It was specifically submitted that Ms Currie led evidence from L which was in keeping with her letter but not consistent with the actual sentencing indication and that she knew or ought to have known that the evidence led from L was untrue. It was also alleged that once Ms Currie realised, after the trial was over and after L had actually been sentenced, that he had received a discount but did not bring that to the attention of the plaintiffs or the Court, she had further breached her obligations.
[131] The allegations levelled by the plaintiffs at Ms Currie are extremely serious. In order to establish them, the plaintiffs must prove that on the balance of probabilities Ms Currie was actually motivated by malice.
[132] No rational explanation was ever advanced by the plaintiffs as to a reason Ms Currie would have to act maliciously towards them. Ms Pelenato, in her evidence, noted that Ms Currie had also been the prosecutor in an unrelated benefit fraud case against her but it was not suggested that anything in relation to that case established malice.
[133] A number of the plaintiffs alleged that Ms Currie had a “win at all costs” attitude. However, they were unable to point to any evidence in support of that claim. The plaintiffs, in making this submission, also seem to have overlooked the fact that Ms Currie was just one of a number of people who had input into the prosecution.
[134] Ms Currie was not involved in the initiation of the prosecutions and, although she had input into the preparation of the indictment, that was finalised by the Crown Solicitor himself.
[135] In relation to disclosure, the information set out above shows that when Ms Currie was requested either by defendants in person (such as Mr Machirus) or counsel representing the defendants, she did her best to obtain such information either from the Police or from the Wellington District Court and promptly forwarded the information that she obtained to the defendants. Importantly, in relation to the disclosure of the custody clearances, she insisted that they were disclosed in the face of opposition from the Police. These actions are inconsistent with someone having a “win at all costs” approach.
[136] As to the claim that Ms Currie knew that her actions were unlawful and were likely to cause harm, I am satisfied that Ms Currie genuinely but erroneously believed that her letter of 21 August accurately summarised the essence of the sentencing indication and the other information she had obtained from the Wellington District Court. It was that conclusion that led her to assure the Court and the defendants that all relevant information had been disclosed.
[137] It cannot be said that Ms Currie’s position was reckless. The sentencing indication, on its face, is ambiguous and contradictory.
[138] The focus at the pre-trial hearing, the day before Ms Currie wrote her letter, had been on the allegations by Mr Machirus that a deal had been done in relation to the historical Christchurch assault charge. It is understandable why responding to that completely unfounded allegation may have been Ms Currie’s main focus.
[139] The position adopted by Ms Currie and the defendants, throughout, is that, in fact, there was no inducement operating on L at the second trial. For the reasons already set out in this decision, there is a tenable legal argument to that effect.
[140] Neither have the plaintiffs made out their allegation that Ms Currie knew or ought to have known that the evidence led from L was untrue. Because of what
Judge Radford said in [6(b)] of the sentencing indication, it is unsurprising that L could have genuinely believed that he was not getting any further benefit for giving evidence beyond the benefit given by Judge Kelly which had been properly disclosed. The fact that his lawyer, Eymard Bradley, was also of that view, also supports a finding that L’s understanding of the situation was not unreasonable.
[141] The fact that Ms Currie did not take steps after the trial, when she read Judge Radford’s actual sentencing notes, is not indicative of malice either. She was then, and remained at the time of the hearing of this matter, of the view that there was no inducement operating on L. It is therefore unsurprising that Ms Currie did not approach the plaintiffs as they have claimed she should have done.
[142] While the Court of Appeal did not ultimately agree with Ms Currie’s interpretation of what had occurred, it did not, in relation to the criminal appeal, make any finding that Ms Currie had acted maliciously or recklessly.33 Indeed, the Court specifically adverted to the possibility that she may have thought that her letter of 21 August correctly summarised the position.34
[143] From my review of the evidence, as set out above, I am satisfied that this is what happened. She did think that her letter addressed the specific concerns she had been asked to investigate but made an error of judgment in not providing a complete copy of the sentencing indication.
[144] Accordingly, because the plaintiffs have not established malice, recklessness, or any intention to harm the plaintiffs, the claim in misfeasance in public office fails.
Deceit
[145] Although the defendants were successful in striking out the cause of action in deceit in the CIV-2011-409-1178 proceedings, they did not pursue such an application in relation to the other proceedings. I therefore need to consider it.
33 R v Machirus, above n 2.
34 At [15].
[146] Like the tort of misfeasance, the tort of deceit involves an intentional wrong. It requires proof of fraud.
[147] In the case of Amaltal Corp Limited v Maruha Corp, the Court of Appeal confirmed that the tort of deceit involves a false representation as to a past or existing fact, made by a defendant who knew it to be untrue or who had no belief in its truth, or who was reckless as to its truth; an intention that the claimant would have acted on the representation; and action by the claimant in reliance on the representation.35
[148] As is noted in The Law of Torts in New Zealand, the tort of deceit is commonly asserted in a commercial context.36
[149] The High Court of Australia has rejected an attempt to expand the tort of deceit into the domestic area.37 Academic writers have suggested New Zealand would follow a similar view.38
[150] On her consideration of the strike-out application, Thomas J noted that the essence of the tort of deceit lay in fraud and that the plaintiffs were required to prove that Ms Currie lacked an actual and honest belief in the truth of her representation. However, she noted:39
The Machirus plaintiffs have pleaded Ms Currie knew what she was putting before the Court was false. The Machirus plaintiffs may find it very difficult to prove Ms Currie acted fraudulently, but I cannot completely rule out the cause of action.
[151] Thomas J also noted that there was considerable force in the contention that the tort of deceit should be confined to the commercial context and encouraged the counsel then appearing for Mr Machirus, Ms Pelenato and Mr Morell to consider whether the cause of action in deceit should continue to be pursued.40
35 Amaltal Corp Ltd v Maruha Corp [2007] 1 NZLR 608 at [46].
36 Todd and others, above n 15, at [15.2.01].
37 See Magill v Magill [2006] HCA 51.
38 See Stephen Todd “Tort” (2007) NZ L Rev 773 at 790-794.
39 Clayton v Currie, above n 10, at [74].
40 At [75].
Analysis
[152] For the same reasons that I found that the plaintiffs had been unable to establish the misfeasance in public office claim, I conclude that the plaintiffs have not been able to establish fraud (in the sense that Ms Currie knew that what she was putting before the Court was false) in relation to deceit. She genuinely, but mistakenly, believed she had put all relevant information before the Court. She did not act recklessly in forming this view.
[153] I am also of the view that, although the tort of deceit is not formally limited to matters arising in a commercial context, there is no principled basis for extending it into the public law arena.41
Malicious prosecution
[154] Mr Morell is the only plaintiff who pursues a cause of action in malicious prosecution.
[155] As it is a prerequisite to a successful cause of action in malicious prosecution that the plaintiff was acquitted, only he and Ms Pelenato are eligible to pursue such a claim. As is noted by Todd:42
… the courts have laid down a number of very stringent conditions which must all be satisfied before liability can be imposed. Claims are not brought very often and they succeed even more infrequently.
[156]Mr Morell expressly pleaded:
That the first defendant had no reasonable and probable cause for prosecuting the third plaintiff.
The first defendant continued the proceedings with a motive other than [the] purpose of bringing the third defendant to justice …
41 I reach this conclusion for the same reasons expressed by the High Court of Australia in Magill v Magill [2006] HCA 51.
42 Todd and others, above n 15, at [18.2].
[157] Both in the statement of claim and in the submissions from Mr Morell, he alleged that Ms Currie had the motive of punishing him for his history of association with the other accused, in particular Mr Machirus.
[158] Ironically, in his cross-examination of Ms Currie, Mr Morell elicited the response from her that she still considered him guilty of the offences with which he had originally been charged. One of the fundamental components of an action in malicious prosecution is that the prosecutor does not genuinely believe the defendant to be guilty of the crime alleged and the prosecution is being brought for some ulterior purpose. The fact that Ms Currie always believed Mr Morell to be guilty is inconsistent with the submission that the prosecution was brought for an ulterior motive.
[159] However, there are more fundamental impediments to the claim of malicious prosecution being successfully made out.
[160] It was not Ms Currie but the Police who initiated the proceeding. Although the case against Mr Morell was not as strong as the case against some of the others charged under Operation Rhino, there was evidence that connected Mr Morell with the properties of 38 Shaw Avenue and 512 Worcester Street, where a large amount of property relevant to the trial was located. There was also evidence of a relationship between Mr Morell and Mr Machirus and some evidence upon which it might have been concluded that the ownership of the Shaw Avenue and Worcester Street properties was a sham, designed to prevent the possible application of legislation such as the Proceeds of Crime Act 1991.43
[161] Ms Currie’s view that there was sufficient evidence to justify the charges against Mr Morell proceeding is also consistent with the views expressed by others. Following depositions, Mr Morell’s counsel conceded that there was a prima facie case against him.
[162] Mr Morell made an application under what was then s 347 of the Crimes Act 1961, which was heard on 27 April 2007, in respect of which Judge MacAskill (who
43 Now replaced with the Criminal Proceeds (Recovery) Act 2006.
had been the presiding Judge at the first trial) delivered a reserved decision on 11 May 2007.
[163] The Judge noted that the Crown case relied on inferences being drawn but concluded that a jury properly directed could convict Mr Morell and refused the s 347 application.
[164] During the course of the second trial, Mr Morell made a further application for discharge under s 347 which Judge Crosbie granted. The Judge reached the conclusion that a jury could not possibly convict because the evidence was insufficient, although he noted that Mr Morell’s “position raises suspicions”.
[165] Judge Crosbie made that decision on the basis of all of the evidence then before him. The Crown case had closed at this point and the evidence of all of the Crown witnesses had been tested by cross-examination.
[166] The fact that a second s 347 application was successful does not mean that there is no proper basis for the matter having gone to trial. Nor does it support an inference that, in continuing the prosecution, Ms Currie was out to get Mr Morell at all costs.
[167] Although Mr Morell claimed that Ms Currie was out to punish him because he was a friend of Mr Machirus, Mr Morell was unable to point to any supporting evidence that would justify the drawing of such an inference.
[168] I also note that there was no pleading by Mr Morell that the justification for proceeding against him changed once Ms Currie received L’s sentencing indication. The reason for this is likely to be because L did not give any evidence that implicated Mr Morell.
[169] In her judgment on the strike-out application, Thomas J indicated that she was unable to see how the cause of action in malicious prosecution could succeed, and noted that the counsel then appearing for Mr Morell accepted that, as a minimum, the
pleading required amendment.44 It seems that, notwithstanding that guidance, the pleadings remained.
[170] Having now heard all of the evidence, I have reached the same conclusion that Thomas J did. There is no evidence of malice on the part of Ms Currie; she had a reasonable basis for continuing with the prosecution against Mr Morell; that view was shared by others, including Judge MacAskill, and nothing in relation to the receipt of the sentencing indication was relevant to the question of whether or not the proceedings against Mr Morell should continue.
[171]Accordingly, the cause of action in malicious prosecution is dismissed.
Bill of Rights Act damages
[172] Each of the plaintiffs, as an alternative to their tort actions, plead that their rights under s 25(a), (e) and (f) of NZBORA were breached and seek damages in respect of those breaches. Such damages are commonly referred to as Baigent claims. The particular rights alleged to have been breached are:
(a)the right to a fair and public hearing by an independent and impartial court;
(e)the right to be present at the trial and to present a defence; and
(f)the right to re-examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution.
[173] There are three separate issues that arise from the claim for Baigent damages. These are:
(a)whether there has been a breach of NZBORA;
(b)whether damages are available for such a breach; and
(c)if damages are available, is this an appropriate case to award them.
44 Clayton v Currie, above n 10, at [72].
[174]I will address each issue separately.
Breach of NZBORA
[175] The first question to ask is whether or not there has been a breach of the right to a fair trial guaranteed by s 25 of NZBORA.
[176] All of the written submissions filed by the plaintiffs included an acceptance “that a miscarriage of justice does not automatically invoke a breach of the NZBORA”. This is undoubtedly correct.
[177] Miscarriages of justice can occur for a variety of reasons. Such reasons are not always the consequence of actions or inaction by someone exercising a public function. For example, a miscarriage of justice may be found to exist on the grounds of counsel incompetency, a witness committing perjury, an unreasonable delay in a complainant bringing forward a complaint, or a media outlet breaching a suppression order.
[178] Even where a miscarriage of justice occurs as a result of an action or omission by someone exercising a public power, that will not always result in a breach of the right to a fair trial. In The New Zealand Bill of Rights Act: A Commentary, the authors expressed the view:45
… that for BORA to be engaged the trial court must know of the fact that has deprived the accused of a fair trial. This interpretation best reflects the purpose behind s 3 of BORA that only governmental or public acts that affect the enjoyment of human rights should be regulated by BORA.
[179] Arguably, that statement goes too far in a case like the present when it is alleged that the person exercising the public power is not the Judge but the prosecutor.
[180] What the plaintiffs asserted in the present case transformed this set of facts from merely amounting to a miscarriage of justice and into a breach of the NZBORA right to fair trial was said to be “the gravity of the non-disclosure and the continued refusal and denial of any further information being held back by the prosecutor”.
45 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [23.2.7].
[181] Although not clearly expressed in their written submissions, they are obviously relying on the allegations of malicious and/or fraudulent behaviour on the part of Ms Currie that was central to their tort claims.
[182] It is not necessary to prove malice or even recklessness in order to establish a breach of NZBORA. Eichelbaum CJ specifically rejected the argument that a claim for compensation for breach of the provisions of the NZBORA should only lie where there had been conscious or reckless indifference to the plaintiff’s rights.46
[183] The Supreme Court of Canada, in the context of a claim for damages for breach of the Canadian Charter, held that malice in relation to a non-disclosure by the prosecution was not required but that it was sufficient if the prosecutor caused harm to the accused by intentionally withholding information when he knew, or would reasonably be expected to know, that the information was material to the defence, and that the failure to disclose would likely impinge on the accused’s ability to make full answer and defence.47
[184] Applying these criteria to the present case, the question becomes whether the plaintiffs have established an intentional withholding of information, and that the information withheld is something that Ms Currie knew or would reasonably have been expected to know, was material to the defence and that the failure to disclose would likely impinge on the accused’s ability to make full answer and defence.
[185] For the reasons set out in relation to the tort claims, I do not accept that it has been established that Ms Currie intentionally withheld anything. She genuinely, but mistakenly, believed she had provided all the relevant information. That puts her situation outside of the circumstances referred to in Henry v British Columbia.
[186] However, in case I am wrong in that, I will consider whether the second limb of the test in Henry v British Columbia is satisfied.
46 Whithair v Attorney-General [1996] 2 NZLR 45 at 56-57.
47 Henry v British Columbia [2015] 2 SCR 214.
[187] In respect of the plaintiffs Pelenato and Morell, there can be no basis for suggesting that the failure to disclose the sentence indication in relation to L “likely impinged on their ability to make full answer and defence”. The reason for that is that he did not give evidence against them and, in fact, they were both acquitted.
[188] Although Ms Westbury was not acquitted, the same observations apply to her. Nothing in relation to L’s sentence indication was either material to her defence or impinged on her ability to make full answer and defence. That is because L did not give evidence against her and her counsel made no application at trial in relation to L’s evidence. Indeed, as is noted in the transcript of the hearing, Judge Crosbie thought Ms Westbury’s counsel rather wanted L’s evidence in for technical reasons.
[189] It is difficult to see why the Court of Appeal felt it was appropriate to set aside Ms Westbury’s convictions and remit her for further trial when L did not give any evidence relevant to her case. In any event, she is clearly unable to bring herself within the second limb of the Henry v British Columbia test.
[190] In relation to the plaintiffs Clayton and Machirus, there is at least an argument that failure to disclose the full sentencing implication could possibly impinge on their ability to “make full answer and defence”.
[191] I have already found that Ms Currie’s actions were not intentional but now consider whether she should reasonably have been expected to know that the information was material to the defence.
[192] Mr Pike pointed out that, had the full sentencing report been available, it seems unlikely that the defendants would have wished to cross-examine L on the contents of [4]. That is because, if they did, it would have been apparent to the jury that L had been subjected to intimidation by prison inmates as a result of giving evidence in the case. Defence counsel are likely to have been reluctant to cross-examine on that paragraph in case the revelation of such intimidation engendered sympathy for L and/or disapproval of the defendants on the basis that they were likely to have been responsible for the intimidation. There is considerable force in that submission.
[193] However, given the Court of Appeal’s finding in the criminal appeal, I am prepared to hold that the sentencing indication was potentially material to the defence, and that Ms Currie could reasonably have been expected to know that withholding it would likely have impinged on the ability of the plaintiffs Clayton and Machirus to make full answer and defence.
[194] That then brings us to a consideration of whether, in New Zealand, Baigent damages are available where the basis of the claim is a breach of the right to a fair trial.
Are Baigent damages available for a breach of the right to fair trial?
[195] In relation to compensation for breach of NZBORA rights, the Court of Appeal on the strike-out application said:48
Compensation will normally only be appropriate where the rights cannot be vindicated by means other than the award of compensation, for example where the breach of the right has resulted in some sort of irreparable harm. Those who have been through the criminal process and have had their NZBORA rights vindicated through remedies such as exclusion of evidence or a stay of prosecution will find it difficult to obtain a further remedy of compensation.
[196] At [84], the Court of Appeal referred specifically to an observation of William Young J in Brown v Attorney-General, where he said:49
In my view, 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. …
[197] The Court also referred to similar observations made by Glazebrook J in the same case where she said:50
[118] I would note, however, that if the remedy of compensation generally is for exceptional cases then this must be even more true if there have been alleged breaches in the trial process, especially where as here there were clearly grounds justifying the laying of the charges, the breach (if any) relates to only one aspect of the trial process and where it is not clear that Mr Brown would have been acquitted in any event, even had the tests been conducted and even if the tests had yielded the same results as were obtained later. In
48 Currie v Clayton [2014] NZCA 511, at [82] (citations omitted).
49 Brown v Attorney-General [2005] 2 NZLR 405 at [142].
50 At [85].
addition, Mr Brown has had a remedy already for the breach in the quashing of his conviction and the discharge.
[198]The conclusion that the Court of Appeal reached on this topic was:51
Whether compensation should be awarded to remedy an unfair trial process, in particular where a stay of proceedings was granted to the respondents, is a matter not settled in New Zealand. Whether compensation is appropriate in the circumstances of this case is a matter for trial.
[199] Not every breach of a right conferred by NZBORA will require a remedy in damages. In a case dealing with unfairly obtained evidence, the remedy will normally be exclusion of the evidence. However, this will not happen automatically and there has to be a nexus between the unlawful act complained of and the consequences that flowed from that. As Richardson J said in R v Te Kira:52
All relevant circumstances are to be considered. While giving primacy to the vindication of human rights, the overall assessment of public interest considerations in a particular case may lead to the conclusion that although the evidence was connected with the breach it should nonetheless be admitted.
[200] Mr Pike had conceded in the Court of Appeal that (unlike the immunity enjoyed to a qualified extent by Canadian prosecutors and absolutely by United States prosecutors) the provisions of s 6(5) of the Crown Proceedings Act 1950 did not bar a claim for compensation against the Crown for breach of NZBORA. However, he did submit that the liability of the Crown is not vicarious but direct. As the Court of Appeal said: “it is a direct liability of the Crown – the state – in public law as a guarantor of the rights and freedoms contained in the NZBORA”. 53
[201] To the extent that liability exits, the liability will be that of the fourth defendant, the Attorney-General, on behalf of the Crown.
[202] The case of Brown v Attorney-General has some similarities with the present case in that it involved an application for damages for breach of s 25(a) NZBORA. Mr Brown was convicted and spent some 18 months in prison until DNA testing (which legal aid had been declined for at the time of the trial) confirmed that an item
51 At [92] (citations omitted).
52 R v Te Kira [1993] 3 NZLR 257 at 273.
53 Currie v Clayton, above n 48, at [80].
of his clothing relevant to the conviction had in fact be worn by others. Mr Brown was discharged and then sought $3 million in compensation. The trial Judge had found that the plaintiff had not established that his application for legal aid to get the DNA tests would have probably been granted if it had been lawfully considered. The Court of Appeal agreed with this finding.
[203] However, even though the Court found that it had not been established that Mr Brown had experienced an unfair trial (as opposed to a trial during which an irregularity had occurred which justified him receiving a s 347 discharge), the majority went on to consider the issue of whether this was the sort of case that might justify Baigent compensation and William Young J, in a separate judgment, addressed this matter in some detail.
[204]The majority stated:54
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.
[205] The majority in Brown v Attorney-General refused to express a view as to whether “compensation or financial relief would be an appropriate remedy for breach of ‘fair trial’ rights”.55
[206] William Young J started his analysis with what he described as the “high- watermark for the appellant’s case” of the Privy Council’s decision in Maharaj v Attorney-General of Trinidad and Tobago (No 2),56 and noted that the Privy Council in that case had held that damages were an appropriate remedy for the unconstitutional committal of a barrister for contempt of court.57
[207] William Young J pointed out that the Privy Council’s decision had rested significantly on the fact that Mr Maharaj had no right of appeal to the Court of Appeal of Trinidad and Tobago in respect of his committal and had been compelled to go to
54 Brown v Attorney-General, above n 49, at [90].
55 At [100].
56 Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1997] AC 385.
57 Brown v Attorney-General, above n 49, at [127]-[128].
the Privy Council to challenge it.58 He referred to a passage in the decision of Lord Diplock who had delivered the judgment of the majority in that case, and who had said:59
[N]o human right or fundamental freedom recognised by Chapter I of the Constitution is contravened by a judgment or order that is wrong and liable to be set aside on appeal for an error of fact or substantive law, even where the error has resulted in a person’s serving a sentence of imprisonment. The remedy for errors of these kinds is to appeal to a higher court. Where there is no higher court to appeal to then none can say that there was error. The fundamental human right is not to a legal system that is infallible but to one that is fair. It is only errors in procedure that are capable of constituting infringements of the rights protected by section 1(a); and no mere irregularity in procedure is enough, even though it goes to jurisdiction; the error must amount to a failure to observe one of the fundamental rules of natural justice. Their Lordships do not believe that this can be anything but a very rare event.
[208] William Young J noted that if damages for breach of fair trial were available in New Zealand, one difficulty that would arise would be “the significance to be attached to loss of a chance principles”.60
[209] Williams Young J reviewed a number of Privy Council decisions that had followed Maharaj and quoted an extract from the speech of Lord Millett in Forbes v Attorney-General of Trinidad and Tobago:61
[The authorities] establish that it is only in rare cases where there has been a fundamental subversion of the rule of law that resort to constitutional redress is likely to be appropriate. However the exceptional case is formulated, it is clear that the constitutional rights to due process and the protection of the law do not guarantee that the judicial process will be free from error. This is the reason for the appellate process. In the present case, the appellant was deprived of his liberty after a fair and proper trial before the magistrate, that is to say, by due process of law. The appellant was able to challenge his conviction by way of appeal to the Court of Appeal and, when the Court of Appeal wrongly failed to quash his conviction, by way of further appeal to the Board. The appeals were conducted fairly and without procedural error, let alone any subversion of the judicial process. The appellant thus enjoyed the full protection of the law and its internal mechanisms for correcting errors in the judicial process. His constitutional rights have not been infringed. …
[210]In reaching a conclusion that:62
58 At [128].
59 At [129], quoting Maharaj, above n 56, at 399.
60 At [131].
61 At [132], quoting Forbes v Attorney-General of Trinidad and Tobago [2002] UK PC 21 at [18].
62 At [142].
… 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.
William Young J was clearly drawing on the views expressed in the several Privy Council cases he discussed. He put forward as factors influencing such an outcome the following:63
(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.
63 At [142].
Analysis
[211] The policy reasons set out by William Young J for not extending the availability of Baigent damages to cases where there has been a miscarriage of justice or right to a fair trial are compelling. The fact that there was an error or procedural irregularity resulting in the Court of Appeal finding that a miscarriage of justice occurred, was rectified when the appeal process resulted in the quashing of the convictions of the three plaintiffs who were convicted, the ordering of retrials, and the subsequent discharges when the Crown elected not to pursue a further trial.
[212] As to whether compensation is available to be awarded as a remedy for an unfair trial process, I adopt the reasoning of William Young J in Brown set out above and I am not prepared to extend the availability of such damages to a case of this nature.
[213] In case I am wrong on whether the actions of Ms Currie, in relation to the plaintiffs Clayton and Machirus, amounted to a breach of their rights to a fair trial, and on whether public law damages are available for such a breach, I will now consider what sort of damages might be recoverable.
Public law damages
[214] Since NZBORA came into effect in 1990, the New Zealand courts have struggled to develop a consistent theory as to the basis upon which damages for breach of its provisions should be available.64
[215] The tension was between a theory which saw public law damages being aligned with “vindicatory” torts such as false imprisonment and trespass to land, and an emphasis on the ubi ius, ibi remedium approach perhaps best exemplified by Hardie Boys J in Baigent’s Case who said “It is not lightly to be accepted that a statute expressing the fundamentals of a civilised society should be little more than sounding brass or tinkling cymbal”. 65
64 See, for example, the discussion in Jason NE Varuhas “The Development of the Damages Remedy under the New Zealand Bill of Rights Act 1990: From Torts to Administrative Law” (2016) NZ L Rev 213.
65 Simpson v Attorney-General [1994] 3 NZLR 667 [Baigent’s Case] at 693.
[216] However, since Baigent’s Case, the New Zealand courts have emphasised the public law nature of NZBORA damages and have sought to limit their scope.66
[217]Speaking extra-judicially in 2014, the Chief Justice said:67
In jurisdictions with remedies for breaches of rights, the basis of reconciliation of the tort with remedies for breach of the right remains uncertain. New Zealand breaches of the Bill of Rights Act have been treated as a category of public law compensation. A path not taken was to build on the tort. If so, the remedy would not have been discretionary. An open question is whether in cases of misfeasance in public office which also entail breaches of the Bill of Rights Act the Bill of Rights Act breach can be taken into account in the damages awarded and if so, whether proof of damage will remain necessary irrespective of the breach of the right, contrary to the view taken by the House of Lords in Watkins v Secretary of State for the Home Department. At present, it seems that Bill of Rights compensation stands apart.
[218] The Supreme Court’s decision in Taunoa v Attorney-General is the leading case which considers compensation for breach of the Bill of Rights in circumstances where there were no tort remedies available to the plaintiffs.68 The plaintiffs in Taunoa were prisoners who had been subject to a Behaviour Management Regime (BMR) designed to manage very difficult and dangerous prisoners. The High Court had upheld their claims that the BMR was a breach of s 23(5) of NZBORA and awarded damages. The Court of Appeal declined to interfere with the damages awards, but declined to make declarations that the BMR breached ss 9 and 27(1) (natural justice).
[219] One of the significant features of Taunoa is the acceptance by the majority in the Court of Appeal that damages awards for breach of NZBORA rights should be “moderate”. It was said that the courts were not to proceed on the basis of any equivalence with the quantum of awards in tort but damages had to be sufficient to provide an incentive to the State not to repeat the infringing conduct, then to ensure that the plaintiff did not reasonably feel that the award trivialised the breach. But Baigent damages did not perform the same economic or legal function as common law
66 Varuhas, above n 64, at 228, is critical of this approach saying “Thus, damages for breaches of fundamental rights have long been a part of the common law tradition. Such damages are not the novelty the Court of Appeal in Baigent presented them to be. The common law already has a remedial approach to breaches of fundamental rights; we need not reinvent the wheel.”
67 Sian Elias, Chief Justice of New Zealand “Reflections on the New Zealand Bill of Rights Act” (Address given at the Institute of Judicial Studies Bill of Rights Act Conference, Auckland, 16 October 2014 at 11 (citations omitted).
68 Taunoa v Attorney-General [2008] 1 NZLR 429.
damages or equitable compensation. Fixing levels of Baigent damages was far from an exact science. The figure to be chosen had to be one with which responsible members of New Zealand society would feel comfortable. Breaches involving systemic failures will call for a greater response than individual misconduct by an official.69
[220] A matter relevant to the question of whether or not damages for a breach of the NZBORA should be awarded will be whether the breaches can be addressed by another means such as the exclusion of evidence, the overturning of a conviction or the making of a declaration.
[221]Blanchard J in Taunoa said:70
It may be entirely unnecessary or inappropriate to award damages if the breach is relatively quite minor or the right is of a kind which is appropriately vindicated by non-monetary means, such as through the exclusion of improperly obtained evidence at a criminal trial.
[222]In the strike-out application in the present case, the Court of Appeal described
Baigent damages as:71
… an “exceptional remedy”, only available in “egregious cases”. It is not obvious that the Crown should be liable for all breaches of the NZBORA, especially when the Crown cannot control the actions of various state sector bodies, for example those with financial autonomy.
[223] The Court referred to the decisions in Brown v Attorney-General72 and Binstead v Northern Regional Domestic Violence (Programmes) Approval Panel73 in support of this proposition, and the comments in Constitutional & Administrative Law in New Zealand.74
[224]The Court of Appeal also said:75
69 This approach was also endorsed in the Court of Appeal decision Dotcom v Attorney-General
[2018] NZCA 220 at [30].
70 Taunoa v Attorney-General, above n 68, at [256].
71 Currie v Clayton, above n 14, at [81] (citations omitted).
72 Brown v Attorney-General [2003] 3 NZLR 335 at [118].
73 Binstead v Northern Regional Domestic Violence (Programmes) Approval Panel [2002] NZAR 865 (HC) at [35].
74 Phillip A Joseph Constitutional & Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014), at [27.3.4 (2)].
75 Clayton v Currie, above n 14, at [82] (citations omitted).
Those who have been through the criminal process and have had their NZBORA rights vindicated through remedies such as exclusion of evidence or a stay of prosecution will find it difficult to obtain a further remedy of compensation.
[225] On the basis of these authorities, if damages were available, they would be moderate, only awarded in exceptional cases and to mark egregious behaviour.
If damages were available, would this have been an appropriate case to award them?
[226] Initially, the plaintiff, Clayton, sought special damages of $1,004,000 in relation to the alleged loss of three bars: The Embankment Tavern; Marston Sports Bar and Alav8 Bar, as well as compensation, aggravated damages and exemplary damages.
[227] In the final amended statement of claim, the plaintiff Clayton abandoned the initial claim for special damages but replaced it with a different claim for $1,000,000. The components of the claim were said to be $400,000 being the value of the first plaintiff being imprisoned; $100,000 being for loss suffered by the first plaintiff being unable to work, and $500,000 being the loss to the first plaintiff’s reputation.
[228] The original statement of claim filed by the plaintiffs Machirus, Pelenato and Morell did not particularise the damages sought but a second amended statement of claim filed in 2017 did. However, that statement of claim sought damages for what was said to be the different breaches of s 25(a) of NZBORA. It is not clear whether the three pleaded types of damages were intended to be in the alternative or cumulative.
[229] In any event, Mr Machirus sought public law damages vindicating his right to a fair trial of some $275,000. This claim was also alternatively expressed as being damages of $200,000 for loss of liberty and exemplary damages of $75,000.
[230] The facts upon which the public law damages were claimed were the same facts that gave rise to the claims in tort, being the failure to provide a full copy of the pre-sentence report, and the assurance by Ms Currie that all relevant information had been provided to the Court and the other defendants.
[231] The plaintiffs need to prove that the actions of Ms Currie were so egregious that a breach of NZBORA is made out which justifies an award of damages.
[232] Ms Currie’s actions cannot be described as so egregious so as to require the Court to mark them with an award of damages. Neither are the circumstances exceptional.
[233] The types of damages claimed by the plaintiffs Clayton and Machirus, and the quantum of those damages, bear no relationship to the sorts of damages that have been awarded by New Zealand courts.
[234] The three plaintiffs who were convicted, lost the chance to obtain an acquittal or to “prove their innocence” as they put it in evidence. That acquittal would not have been on all charges. Mr Machirus faced a number of charges to which the evidence of L was not relevant. As mentioned, L’s evidence was not relevant at all to the charges faced by Ms Westbury. The term of imprisonment imposed on Mr Clayton included a one-year term of imprisonment, cumulative on fraud charges completely unrelated to Operation Rhino.
[235] At best, the plaintiffs could claim to have lost a chance of being acquitted on some of the charges on which they were sentenced. In reality, it seems unlikely that L would have been cross-examined in any significantly different way to that which occurred. The plaintiffs fall well short of being able to establish that they probably would have been acquitted had the full sentencing indication been disclosed.
[236] Even if damages were available for breach of the right to a fair trial, this would not have been an appropriate case to award them.
Conclusion
[237] The plaintiffs’ claims in tort fail because they have not established the presence of malice or fraud on the part of the first defendant which is a prerequisite to success with such claims.
[238]The plaintiffs’ claims for Baigent damages fail because:
(a)the miscarriage of justice which occurred here did not amount to a breach of their NZBORA right to a fair trial;
(b)even if there was a breach, damages are not available as a remedy for breach of a fair trial; and
(c)even if damages were available for breach of a fair trial, this case is not exceptional and involved no egregious behaviour that would justify an award of damages.
Costs
[239] It is my preliminary view that, given the apparently impecunious nature of all the plaintiffs, there is little point in making a costs award. However, should the defendants wish to pursue such an application, they are to file a memorandum within 10 working days of this judgment, with the plaintiffs having 10 working days to respond.
Churchman J
Solicitors:
Luke Cunningham & Clere, Wellington for Defendants
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