BETWEEN
VINCENT JAMES CLAYTON

First Plaintiff

LYNDA JOYCE WESTBURY
Second Plaintiff

AND

PHILIPPA ANNE CURRIE

First Defendant

RAYMOND DONNELLY & CO
Second Defendant

THE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

THE ATTORNEY-GENERAL

Fourth Defendant

CIV-2013-409-1441

BETWEEN

PETER LLOYD MACHIRUS
First Plaintiff

NADIA MAVANA PELENATO
Second Plaintiff

GARY GEORGE MORELL
Third Plaintiff

AND

PHILIPPA ANNE CURRIE

First Defendant

RAYMOND DONNELLY & CO
Second Defendant

THE 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 appropriate
case 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clayton v Currie

Details

AGLC: Clayton v Currie [2018] NZHC 1898
Case: [2018] NZHC 1898
Decision Date: 30 July 2018

CaseChat Overview and Summary

The plaintiffs were the defendants in criminal proceedings that arose from a Police operation named Operation Rhino. They were arrested and charged with various dishonesty offences as a result of that operation. Three of the plaintiffs were convicted and two spent time in prison and one completed a sentence of community work. 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. In these proceedings, the plaintiffs seek damages against the defendants in tort 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. The first defendant, Ms Currie, 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. 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. 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. The sentencing indication was capable of more than one interpretation and there appears to be a contradiction between Ms Currie’s comments in her letter of 21 August 2007 and what Judge Radford said in the sentencing indication. The Court of Appeal found 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. The Court held that 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. 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. 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. 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.

Orders