Clayton v Currie
[2017] NZHC 1302
•15 June 2017
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2011-409-1178 [2017] NZHC 1302
IN THE MATTER of the New Zealand Bill of Rights Act
1990
BETWEEN
VINCENT JAMES CLAYTON First Plaintiff
LINDA JOYCE WESTBURY Second Plaintiff
AND
PHILIPPA CURRIE First Defendant
RAYMOND DONNELLY & CO Second Defendant
THE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant
CIV- 2013-409-1441
IN THE MATTER of the New Zealand Bill of Rights Act
1990
BETWEEN PETER LLOYD MACHIRUS First Plaintiff
NADIA MAVANA PELENATO Second Plaintiff
GARY GEORGE MORELL Third Plaintiff
… continued
VINCENT JAMES CLAYTON v PHILIPPA CURRIE [2017] NZHC 1302 [15 June 2017]
ANDPHILIPPA CURRIE First Defendant
RAYMOND DONNELLY & CO Second Defendant
THE CROWN SOLICITOR AT CHRISTCHURCH
Third Defendant
ATTORNEY-GENERAL OF NEW ZEALAND
Fourth Defendant
Hearing: 26-27 April 2017 Counsel:
P N Allan and K L Chalmers for Mr Clayton and Ms Westbury
R W Maze for Mr Machirus, Ms Pelenato and Mr MorrellJ C Pike QC and S K Barr for Ms Currie, Raymond Donnelly and Co, Crown Solicitor at Christchurch and Attorney-General S M Kinsler and S K Shaw for Commissioner of Police (1178) R E Schmidt-McCleave for Legal Complaints Review Officer (1178)
Judgment:
15 June 2017
JUDGMENT OF THOMAS J
Table of contents
Introduction ............................................................................................................. [1] Factual background ................................................................................................ [4] The claims .............................................................................................................. [23] (i) Summary judgment ...................................................................................... [31] The law .......................................................................................................... [31]
The application .............................................................................................. [33] Christchurch Charges .................................................................................... [35] L’s custodial status ......................................................................................... [40] Sentence Indication........................................................................................ [42] Misfeasance in public office .......................................................................... [45] Breach of right to a fair trial under the NZBORA ......................................... [63] Malicious prosecution.................................................................................... [68] Deceit ............................................................................................................. [73] Conclusion ..................................................................................................... [76]
(ii) Further and better discovery ....................................................................... [77]
The law .......................................................................................................... [77]
The application .............................................................................................. [79] Private prosecution ........................................................................................ [81] Movements of L before, during and after the trial......................................... [85]
(iii)Non-party discovery ...................................................................................... [93] The law .......................................................................................................... [93] The application .............................................................................................. [96] Documents sought from New Zealand Police ................................................ [97] Documents sought from Legal Complaints Review Officer ......................... [103]
(iv) Application for security for costs ............................................................... [113] (v) Application to set aside interrogatories..................................................... [126] Result .................................................................................................................... [127] Directions ............................................................................................................. [129]
Introduction
[1] Vincent Clayton and Linda Westbury sue the defendants in misfeasance in public office and for breach of their rights pursuant to the New Zealand Bill of Rights Act 1990 (the NZBORA) (the Clayton Proceedings). Peter Machirus, Nadia Pelenato and Gary Morell sue the same defendants in respect of the same alleged behaviour in misfeasance in public office, breach of the NZBORA, deceit and, by Mr Morell only, malicious prosecution (the Machirus Proceedings). The two
proceedings are being case managed on a consolidated basis.1
[2] The allegations stem from actions taken by the first defendant, Ms Currie, when she appeared for the Crown in a criminal trial which involved all the plaintiffs.
[3] This decision deals with five applications before the Court: (a) the defendants’ application for summary judgment;
(b) Mr Clayton and Ms Westburys’ application for further and better
discovery;
(c) Mr Clayton and Ms Westburys’ application for non-party discovery; (d) the defendants’ application for security for costs; and
(e) the defendants’ application to set aside Mr Machirus’ interrogatories.
Factual background2
[4] Along with six others, Mr Clayton, Ms Westbury, Mr Machirus, Ms Pelenato and Mr Morell were prosecuted in the Christchurch District Court in March 2005. The prosecution resulted from a police investigation called “Operation Rhino”. In general terms, the accused were charged with receiving stolen goods, materials and equipment from building sites in Christchurch and selling them.
[5] A first trial was terminated in October 2006 after one of the accused became ill (the First Trial). A second trial began in the Christchurch District Court in July
2007 (the Second Trial).
[6] A key witness for the Crown was a man I will refer to as L because his name is suppressed.3 He was an important Crown witness.4 L’s evidence was that he was stealing to order for Mr Clayton, Ms Westbury and others. L had originally been charged jointly with the other accused. In April 2005 he pleaded guilty to 18 counts of burglary, four of theft, five of receiving and one of converting a motor vehicle. He was sentenced on those charges before the First Trial and received credit for the assistance he gave to police. In the First Trial he was cross-examined on the assistance he gave to police and his motivation to lie.
[7] Before or during the Second Trial, the accused and their counsel became aware that L had been charged with subsequent, unrelated offences in the Wellington District Court (the Wellington Charges). The offending had largely taken place after the First Trial, with the exception of one charge. The defendants understood L was to be sentenced for this offending in Wellington. They were concerned to have the details of L’s sentencing, and in particular to know whether he had received any discount on his sentence for his assistance to the police, including giving evidence
for the Crown in the Second Trial.
2 The factual background is taken largely from Currie v Clayton [2014] NZCA 511, [2015]
2 NZLR 195 at [3]–[28] [the Court of Appeal strikeout decision].
3 On 23 November 2007, Judge Crosbie made an order finally suppressing L’s name and any details that might lead to his identity being established.
4 Described in the Court of Appeal strikeout decision as “the glue that held the Crown case together”, at [6] and in R v Machirus [2008] NZCA 477 as “a critical Crown witness”, at [2].
[8] Counsel for one of the accused had unsuccessfully requested from the Wellington District Court information about L’s sentencing. At the request of the accused and their counsel, Ms Currie, the Crown Prosecutor in the Second Trial, made a fresh request to the Wellington District Court, on the letterhead of the firm of which she is a partner, Raymond, Donnelly & Co, the second defendant in these proceedings. The third defendant in these proceedings is the Crown Solicitor at Christchurch. Ms Currie signed the letter “Crown Solicitor, per Philippa Currie, Partner”. On 20 August 2007, the Wellington District Court sent Ms Currie a sentencing indication given to L on 31 May 2007 by Judge Radford (the Sentence
Indication).5 Two parts of the Sentence Indication were relevant to the defendants’
concern as to whether L had received a sentencing discount or inducement for his assistance to the police. They were:
[4] … 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 the offending and of course significant discount for the matter which involves the Christchurch trial.
…
[6] I am prepared to agree with [further remand] and grant such a remand to 28 August 2007 at 9.15 am but I make the following observations:
…
(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.
[9] The normal and desirable practice is that a person in L’s position is sentenced before he gives evidence. L was not sentenced before he gave evidence for the Crown in the Second Trial.
[10] On 21 August Ms Currie emailed a letter to all the accused or their counsel and to the Registrar of the Christchurch District Court. It stated:
…
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.
[11] The advice contained in that letter was obviously incomplete. Ms Currie replicated only one of the two relevant passages in the Sentence Indication. She did not give the Sentence Indication itself to the accused/counsel.
[12] L was scheduled to give his evidence on 22 August. In chambers on
21 August there was a discussion between the Judge and counsel about L’s proposed evidence. Mr McMenamin, counsel for the accused Mr Morrell, questioned whether all of the sentencing indication remarks made by Judge Radford had been disclosed by Ms Currie. Mr McMenamin said to the Judge:6
In my submission it would be appropriate that we should have the full statement of the judge’s remarks so that we see the full context in which they appeared and are aware of the date on which it occurred in relation to the actual date upon which the pleas were entered. Not pre-empting Your Honour’s decision but if Your Honour were to rule that the evidence was still admissible I then would seek further information from the Crown.
6 R v Clayton DC Christchurch CRI-2005-009-7821, 21 August 2007 (Transcript of Legal
Discussion and Submissions on 21 August 2007 before Judge M A Crosbie) at 29.
Now, enquiries were carried out immediately with the court in Wellington and the details of those enquiries were received I think yesterday and I have put them in a letter and sent them back to all counsel and the court this morning. That is as far as the Crown says its obligations extended and there is no question whatsoever of late disclosure or material being held back.
[14] Later on 21 August Judge Crosbie ruled against an application by the accused Messrs Clayton and Machirus to exclude L’s evidence, confirming it would be given the following day. The Judge’s reasons for that ruling, which he gave on 22 August, included the following:8
[31] For the Crown, Ms Currie opposed the application. She took strong objection to any suggestion that the Crown has been involved in the holding of the Wellington documents. Ms Currie stated that the matter has at all times been a Police matter and in the hands of the Wellington Police Prosecution Section. While issues arose relating to inducements during the first trial, the Crown had provided full information in relation to that.
[32] The Crown, Ms Currie submits, was not in possession of any further material relating to [L]’s new charges and forthcoming sentencing. In answer to a letter from Mr Knowles dated 9 August 2007, immediate inquiries were made of the Court in Wellington and that, she submits, is as far as the Crown’s obligations extended. The only reason that other matters have come to light is through Mr Machirus’s own inquiries. All material requested has been provided and Ms Currie rejected any criticism of the Crown.
[15] L gave his evidence on 22 August. During cross-examination L was asked whether he had received any benefit in return for the evidence he was giving. The following cross-examination of L took place:
Q. What did you hope to gain by talking to the police and giving the evidence that you have against the people in the Court today.
A. Just to get on with my life, get over it and get on with it, rather than dragging out this three years like it has.
Q. Well, did you hope to receive a benefit other than that from giving the evidence that you have in this Court.
A. I’ve not received any benefits, promises, or anything of those. The
only thing I got was a transfer of sentence.
7 At 35.
8 R v Clayton DC Christchurch CRI-2005-009-7821, 22 August 2007 (Trial Ruling No 4).
Q. You were aware, weren’t you, when you were sentenced in this matter in May 2005, that you gained a significant discount for the co-operation that you were giving to the police. Isn’t that right.
…
A. I think I got a discount for my early guilty pleas.
Q. But you were also very well aware, weren’t you, that you got a discount for co-operation with the police in giving them information about the burglaries and the people that you say that you committed them with. Correct?
A. I suppose so, there was something there, I would say.
…
Q. Are there any benefits that you anticipate that you may get in the foreseeable future as a result of the evidence that you’re giving today.
A. I tell you right here and now, I’ve had nothing but shit … and when shit hit the fan, they weren’t nowhere to help me, so no, I don’t get any benefits.
…
Q. You’ve still got to be sentenced on some subsequent offending haven’t you.
…
Q. Is it your hope the same process will operate again at that subsequent sentencing.
A. In the judgment, made by the Judge, at this sentencing before I was remanded for sentence, he made it clear that there would be no advantages, no discounts whatsoever at this trial. This trial would not come into my new case.
[16] In the later cross-examination of L:
Q. The next thing you are going to get, or attempt to get will be some further consideration when you go up to Court on your new charges isn’t it.
A. No.
…
Q. Just every step to me, [L], seems in the direction of your self-interest, do you agree with that.
A. I’d disagree with that.
Q. [L] you have some charges for which you are still to be sentenced.
Are you deriving any benefit there in relation to your giving evidence at this trial.
A. No the judge has made it clear that this will definitely not be taken into consideration.
Q. Do you want to be here giving evidence. A. No not really.
Q. Have you been summonsed. A. No not that I’m aware of.
Q. Well are you here voluntarily. A. I am.
Q. Have you gained anything at all from giving evidence at the depositions, the first trial or the second trial in relation to these Operation Rhino matters.
A. I don’t think I have.
[18] The Judge’s summing up noted the disagreement between the Crown and
defence counsel as to L’s credibility. The following passages illustrate this:
[103] The Crown submits that [L] is a credible and reliable witness. The defence position is that he is the opposite – he lacks credibility and that he is unreliable. It is for you to decide what you make of [L] as a witness and of his evidence. In particular, it is for you to decide whether to accept his evidence and what weight you will give to it. In making that decision you should be cautious about whether he may have had his own purpose to serve by giving evidence at this trial and be sure that he was not giving false evidence to advance his own interests.
[104] It is suggested by the defence that his interests might have included receiving, as he did, a reduction in his sentence for co-operation with police. That issue was thoroughly covered in defence cross-examination of [L]…
…
[141] The Crown’s view is that the attacks on [L] were “red herrings” designed to muddy the waters and deflect you away from the real issues … The Crown submits that [L] had absolutely nothing to gain in giving evidence. Why, it asks, would he be going through all of this, coming to Court to face the accused unless he was simply telling the truth. Why would he bother and why would he lie?
…
[144] … The Crown submits that the cross-examination of [L] did not reveal that there was any benefit to him in giving evidence and he said as much many times.
…
[169] Mr McCall [amicus for Mr Clayton] challenges [L]’s motivation to give evidence … Mr McCall asked you to recall [L]’s evidence that when he starts something off he finishes it. What had he “started” raised Mr McCall? He answered that by suggesting that [L] was motivated by self-preservation, to look out for “No. 1” and to get what he wanted. That is of course one view, the contrary being that you might think that [L] wanted to see through the process of holding both himself and those he dealt with to account. Entirely matters for you.
[19] Mr Morell was discharged pursuant to s 347 of the Crimes Act 1961 at the conclusion of the Crown case. Ms Pelenato was found not guilty. Mr Clayton, Ms Westbury and Mr Machirus were each found guilty by the jury on numerous charges of receiving. Mr Clayton had also pleaded guilty before trial to 10 counts of fraud. Mr Clayton was sentenced to five years’ imprisonment, Mr Machirus to three years six months’ imprisonment, and Ms Westbury to a term of 250 hours’
community work and nine months’ supervision.9
[20] Subsequently, Mr Machirus became aware of the full terms of the Sentence Indication. In November 2008 he appealed against his conviction and sentence. The Court of Appeal allowed the appeal, quashed Mr Machirus’ conviction and ordered a new trial,10 saying:
[15] … the disclosure that was made in [Ms Currie’s] letter was inaccurate and did not properly apprise the Judge, counsel and Mr Machirus of the true position.
[16] 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. These factors are obviously material to the credibility and reliability of the evidence of the witness. They will inevitably be put to the witness in cross-examination. They are material which the Judge and jury are entitled to know about. They can be the basis for a ruling excluding the witness from the trial. Indeed, that was the application which Judge Crosbie heard on 21 August.
…
[21] 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.
[22] We therefore allow the appeal and set aside the convictions. We order a retrial.
[21] Mr Machirus had served around 13 and a half months of his sentence. Mr Clayton and Ms Westbury then also appealed, separately, with the same outcome, although this time by consent.11 By the time those appeals were allowed, Mr Clayton had served 14 months of his sentence of imprisonment and Ms Westbury had completed all of her sentence of 250 hours community work.
[22] Subsequently, the Crown Solicitor at Christchurch entered a stay of the prosecutions against Messrs Machirus and Clayton and Ms Westbury and consented to their discharge under s 347 of the Crimes Act 1961, with the result that they were deemed acquitted of the charges they faced.
The claims
[23] Mr Clayton and Ms Westbury contend Ms Currie’s failure to disclose the full Sentence Indication given to L in the course of their trial caused them loss. Mr Clayton claims $1,000,000 in compensation and/or damages in respect of losses suffered from the period of imprisonment, being unable to work and reputational damage. Ms Westbury claims $575,000 in compensation and/or damages in respect of losses suffered from undergoing community work, the loss of the support provided by Mr Clayton to Ms Westbury as a direct result of his imprisonment, mental and emotional suffering and reputational damage.
[24] In their statement of claim filed on 22 June 2011, Mr Clayton and
Ms Westbury pleaded three causes of action.12 First, a breach of s 25(a), (e) and (f)
11 R v Clayton [2008] NZCA 493; R v Westbury [2009] NZCA 104.
12 The most recent amended statement of claim was filed on 5 October 2016.
of the NZBORA by Ms Currie not disclosing the Sentence Indication and thereby misleading both the Court and the plaintiffs.
[25] Secondly, a tortious claim in deceit. That cause of action was struck out by
Associate Judge Osborne, and that decision was not challenged.13
[26] Thirdly, a claim for misfeasance in public office. The plaintiffs plead the first and third defendants (Ms Currie and the Crown Solicitor at Christchurch) were public officers and the second and fourth defendants (Raymond, Donnelly & Co and the Attorney-General) are vicariously liable for their actions. The allegation is that Ms Currie and the Crown Solicitor at Christchurch knowingly misapplied their powers and/or authorities as public officers, amounting to an abuse of office and, in so doing, acted with malice towards the plaintiffs or with knowledge that the conduct was unlawful and likely to injure the plaintiffs.
[27] Priestley J in the High Court struck out the cause of action for misfeasance in public office in the Clayton Proceedings but did not strike out the cause of action for public law compensation for the alleged breach of the plaintiffs’ rights under the NZBORA.14 In relation to misfeasance in public office, the Court of Appeal on appeal addressed the question of law of whether Ms Currie was exercising either public power or authority or discharging a public duty in purporting to comply with
her duty of disclosure.
[28] The Court of Appeal held that a Crown Prosecutor in New Zealand has no general immunity from claims. The Court’s powers to sanction and control the actions of lawyers in court and the duties a prosecutor owed to the court arguably do not redress a situation where, as here, the plaintiffs have served all or part of the sentences imposed on them. If Ms Currie had a prosecutorial duty to disclose the Sentence Indication, it was arguable she did so exercising the powers and authority attaching to her public office as prosecutor. Potential liability for all Ms Currie’s actions, whether within or outside the courtroom could not be ruled out. The High Court had erred in striking out the cause of action for misfeasance in public
office because it could not be certain the cause of action would not succeed. The proper scope of Ms Currie’s conduct, and whether it was intentional or with reckless indifference, would be determined at trial.15
[29] The Court of Appeal held it was arguable that Ms Currie, acting in her official capacity as a Crown Prosecutor, was a person encompassed by s 3 of the NZBORA, and s 6(5) of the Crown Proceedings Act 1950 did not necessarily bar the NZBORA cause of action. It was arguable Ms Currie breached her duty to disclose to the Court and the accused in the Second Trial all information in her possession relating to the Sentence Indication, and that the breach of duty led to the successful appeal and subsequent stay of proceedings. It was also arguable the NZBORA rights had been breached and the respondents had a claim for Baigent damages as a
result.16 Counsel for the accused were entitled to rely on the unequivocal assurances
made to them by Ms Currie regarding disclosure of the Sentence Indication and it was unrealistic to suggest they had a duty independently to obtain disclosure from the Court. It could not be said the essential elements of the NZBORA cause of action were incapable of being satisfied. Whether compensation was appropriate in the circumstances was a matter for trial.17
[30] Mr Machirus, Ms Pelenato and Mr Morell in an amended statement of claim dated 15 July 2016 plead three causes of action, namely, breach of s 25(a), (e) and (f) and s 27 of the NZBORA, misfeasance in public office and a tortious claim in deceit. Mr Morell pleads in addition a tortious claim in malicious prosecution. The plaintiffs seek a declaration under the NZBORA, compensation and/or damages under each cause of action, compensation for Ms Pelenato having being forced to close her business in the value of $18,720, compensation for two properties restrained under the Criminal Proceeds (Recovery) Act 2009, aggravated damages
and exemplary damages.
15 The Court of Appeal strikeout decision, above n 2, at [30]–[63].
16 Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent's case].
17 At [64]–[92].
(i) Summary judgment
The law
[31] In order to obtain summary judgment, the defendants must satisfy the Court that none of the claims in the relevant statement of claim in respect of the particular plaintiff can succeed. In considering an application for summary judgment, the Court may consider affidavit evidence, in contrast to the position under a strikeout application.18 Summary judgment against a plaintiff is appropriate only when there
is a clear answer to the claim which cannot be contradicted.19
[32] Summary judgment ought not to be granted where any defect relied on by the defendants can be cured by an amendment of the pleadings.20 This is particularly relevant in this case where Mr Machirus, Ms Pelenato, and Mr Morell (the Machirus plaintiffs) have been self-represented. Mr Maze has only relatively recently been instructed to act for the Machirus plaintiffs.
The application
[33] The defendants have applied for summary judgment on the grounds:
(a) The plaintiffs in both proceedings must prove L testified at the Second Trial under a second and undisclosed inducement to testify and did so to the knowledge of Ms Currie. L as a matter of law and fact did not testify under any such inducement and the plaintiffs cannot prove to the contrary.
(b)Ms Pelenato was found not guilty on all counts against her and accordingly cannot prove that she suffered damage or loss caused by the testimony of L, nor can she prove an entitlement to Baigent
damages.
18 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR12.2.07].
19 Westpac Banking Corporation v M M Kembla New Zealand Ltd [2001] 2 NZLR 298 (CA)
at [60].
20 At [66].
(c) Mr Morell was discharged pursuant to s 347 of the Crimes Act 1961 and therefore cannot prove damage or loss arising from the non-disclosure of any inducement to testify as alleged, nor prove eligibility for Baigent damages.
(d)Mr Morell must prove for a claim in malicious prosecution the charges against him were laid without probable cause by the defendants and without an honest belief in his guilt. The question of probable cause is a matter of law and the plaintiff in a pre-trial s 347 application failed to have the charges dismissed.
[34] The defendants define the issue in both proceedings as an allegation that Ms Currie, in prosecuting the plaintiffs in the Second Trial, deliberately suppressed the existence of what would be a second inducement made to L with the motive of limiting further damage to his credibility and ensuring the plaintiffs would be convicted. The defendants consider both proceedings are premised on an allegation that L faced charges unrelated to the Second Trial in the Christchurch District Court (the Christchurch Charges) and the police agreed to downgrade them in exchange for a promise to testify at the Second Trial. Further, that Ms Currie was either party to this arrangement or aware of it but failed to disclose it.
Christchurch Charges
[35] In their statements of claim, both sets of plaintiffs refer to the Christchurch Charges, which were originally laid as two charges of assault with intent to injure. They related to L’s alleged involvement in a “home invasion”. The charges were reduced by the Christchurch Police to one charge of male assaults female. The file was then transferred to Wellington, where L pleaded guilty in February 2007. That charge formed part of the Sentence Indication.
[36] Mr Pike, counsel for the defendants, said the reason for the reduction of charge was because, for various reasons, the police had not progressed the charges of assault with intent to injure to the extent there was a real possibility L could have successfully obtained a stay of those charges. That, Mr Pike explained, was the
reason for the police reaching a resolution with L and downgrading the charges to one charge of male assaults female.
[37] Furthermore, Mr Pike pointed out, as is evidenced by the record of discussions with the trial Judge at the Second Trial, the fact of the reduction of charges was known by the accused and their counsel at the Second Trial. Indeed, counsel for L offered to give evidence in a voir dire to explain the circumstances of the reduction of the charges. The offer was not taken up. This was in the context of an application by counsel for the accused at the Second Trial to have the evidence of L excluded under s 38 of the Evidence Act 2006.
[38] Mr Pike suggested the focus of both proceedings was on the reduction of the Christchurch Charges being an inducement which was not disclosed. However, although both statements of claim refer to the reduction of the charges, it is not, on my reading of the statements of claim, the real or sole focus of any cause of action. The plaintiffs’ position is somewhat wider than the Crown’s analysis, whether or not this is as a result of a shift in their claims.
[39] There is therefore the need to examine in more detail the circumstances of the
Sentence Indication.
L’s custodial status
[40] When L was before the Wellington District Court on the Wellington Charges, his counsel applied to have L admitted to bail. One of the major planks of the application was the danger it was said L faced should he be held in the Christchurch Men’s Prison when he had to give evidence in the Second Trial. This was because of the threats he had received, some apparently having been made in Court by gestures which clearly indicated an intention to harm L. Furthermore, L’s home had been broken into and the only item stolen was his brief of evidence for the Second Trial. The police were clearly concerned about L’s safety and had provided support for L by way of a submission to the Parole Board, an extract of which was provided to Judge Radford, which outlined police concerns for L’s safety as a result of his agreement to testify at the Second Trial.
[41] Judge Radford made it clear that, given the seriousness of the Wellington Charges, L would not be granted bail and bail by electronic monitoring was not a realistic prospect. What the Judge did agree to do was to retain L’s status as a prisoner on remand and defer sentencing until after the Second Trial. The purpose of this was to keep L away from other sentenced prisoners and reduce the threat of harm to him.
Sentence Indication
[42] Mr Pike said it was obvious it was Judge Radford himself who decided to recognise the danger faced by L. In the notes of the hearing Judge Radford is recorded as saying “what is to transpire is very much to [L’s] credit”.21 Neither the police nor L’s lawyer at the time of the Sentence Indication had sought any additional discount in this regard.
[43] Although Judge Radford did not indicate the final sentence in the Sentence Indication, he took a starting point in the region of four and four and a half years’ imprisonment and then said significant discounts had to be given for the guilty plea and “significant discount for the matter which involves the Christchurch trial”.
[44] In an email from the police to Ms Currie on 17 July 2007, there is reference to L apparently saying that, if he received bail, he would give evidence at the Second Trial but would not if he were in custody. The police also advised Ms Currie on
23 July 2007 to downplay L’s role when she opened the Crown case at the Second Trial because there was only a 50:50 prospect that he would be there. This, in Mr Pike’s submission, all demonstrates there was neither overt nor covert police intervention in what was happening.
Misfeasance in public office
[45] The elements of the tort of misfeasance in public office can be summarised as follows:22
21 Police v [L] DC Wellington CRI-2007-32-94, 31 May 2007 (Transcript of Proceedings before
Judge Radford 31 May 2007) at 6, lines 11–12.
22 The Court of Appeal strikeout decision, above n 2, at [40] (footnotes omitted).
(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 is 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
(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.23
[46] In Mr Pike’s submission, to succeed on each cause of action, the plaintiffs would have to show L testified at the Second Trial under a second and undisclosed inducement to testify and did so to the knowledge of Ms Currie. The defendants say that, as a matter of law and fact, L did not testify under any such inducement and the plaintiffs cannot prove to the contrary. This is the basis on which the defendants apply for summary judgment against all of the plaintiffs.
[47] The defendants accept it was a mistake not to make a full copy of the Sentence Indication available, if not to all accused in the Second Trial, then at the very least to the trial Judge. That mistake resulted in the Court of Appeal determining there had been miscarriage of justice and the effective acquittal of Messrs Machirus and Clayton, and Ms Westbury.
[48] What the defendants say is fatal to the plaintiffs’ cases is that there was no inducement for L to testify. The defendants accept the plaintiffs can argue L received a benefit as a result of the Sentence Indication but the defendants’ position is that, at the time L testified at trial, he was not in receipt of any benefit. In Mr Pike’s submission, the various documents now discovered means that the Court of Appeal misunderstood the true position at the time it allowed Mr Machirus’ appeal against conviction. Mr Pike says an analysis of paragraph [6] of the Sentence Indication shows Judge Radford made it clear that L’s position would neither improve nor worsen as a result of what happened in the Second Trial. Therefore, says Mr Pike, there was no benefit which would have had the effect of influencing what L did or said when he gave evidence or which could reasonably be seen to influence his mind
at the time he testified.
23 The Chief Justice in a paper “Reflections on the New Zealand Bill of Rights Act” she presented
at an Institute of Judicial Studies Conference in Auckland on 16 October 2014 observed:
[39] … An open question is whether in cases of misfeasance in public office which also entail breaches of the [NZBORA] the [NZBORA] 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 [2006] UKHL 17, [2006] 2 AC 395. At present, it seems that [NZBORA] compensation stands apart.
[49] The Court of Appeal specifically addressed this, however, in considering what happened when L was actually sentenced by Judge Radford. For completeness, I set out the relevant parts of the Court of Appeal decision:24
[13] Mr Stanaway went further, however, and sought to defend the decision to disclose only [6](b) on the grounds that Judge Radford was not providing a discount against sentence in anticipation of L co-operating with the police and giving evidence in the Christchurch retrial. He argued that the phrase in [4] of the 31 May notes “and of course significant discount for the matter which involves the Christchurch trial” was a significant discount in respect of the guilty plea to the Christchurch assault. That simply does not make sense. L obtained a discount from between four and four and a half years down to between two and a half and three years. That is of the order of
45 per cent. It is a discount outside the range available to sentencing Judges for guilty pleas.
[14] It is hardly necessary also to analyse contextually the rest of the sentencing notes, but there is other material in [2] and [5] which reinforces the literal meaning of the last sentence in [4] that the subject matter is a trial in Christchurch which is forthcoming. That could only be this retrial. That interpretation is reinforced by the sentencing itself which took place on 29
August. Mr Stanaway agreed that the Judge plainly thought that he was providing a discount because of L's co-operation in giving evidence in
Christchurch. Judge Radford said (at [11]):
[11] I decided, when giving you my indication, that a starting point in the region of four to four and a half years was appropriate but that considerable discount needed to be given. What I said was that the pleas involved considerable discount on their own as did the activity that you have undertaken in Christchurch. I cannot emphasis (sic) enough, really, that that has been the major factor which has persuaded me to reduce the level which would otherwise be entirely appropriate. You are a man who, with all of your previous convictions, is likely to have a sentencing level increased because of those convictions being aggravating features.
Mr Stanaway had to argue that the Judge on 29 August had made a mistake, had misread his earlier notes of 31 May and was now, for the first time, providing for a discount for the co-operation of L. We reject that argument.
[15] We accept that, 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 letter reproduced at [8] above correctly summarised the position. Whether that is so or not, the disclosure that was made in the letter was inaccurate and did not properly apprise the Judge, counsel and Mr Machirus of the true position.
24 R v Machirus, above n 4.
[50] The Court of Appeal therefore considered the Sentence Indication, taken as a whole, did provide an inducement and that was borne out by the actual sentencing on the Wellington Charges. L received a considerable discount to the starting point and one much greater than could have been attributable to his guilty pleas. The Court stressed the Crown must disclose any factor which might operate as an inducement
to a witness to give evidence.25
[51] The defendants rely on paragraph [6] of the Sentence Indication, presumably coupled with what L said in cross-examination, to the effect that there would be no further benefit from giving evidence at trial, to say there was no inducement. They say there was no benefit which would have influenced L at the time he testified at the second trial. However, what L might have understood from the Sentence Indication, or what he said in evidence at the Second Trial he understood, is not the point. The point is that the Sentence Indication made it clear he would receive a “significant discount” in connection with the Second Trial and that information should have been available to counsel for the accused.
[52] In any event, by interpreting the plaintiffs’ claims as requiring proof L was influenced to give evidence at the Second Trial, the defendants misinterpret the claims. The claims are not focused on the benefit necessarily being an inducement in that sense, but rather recognition of L’s assistance to authorities and the personal danger to which he exposed himself as a consequence. The issue as far as the plaintiffs are concerned is that, had they been aware of the further benefit, that could have been used at the Second Trial to undermine L’s credibility. Analysed in this way, Mr Pike’s suggestion the Court of Appeal erred in saying the Crown had a right of appeal should L not fully cooperate in the Second Trial, because the Wellington Charges were police matters, does not change matters.
[53] Had the full text of the Sentence Indication been available, it remains unlikely the accused would have succeeded in having L’s evidence excluded from the Second Trial. However, knowledge of the full content of the Sentence Indication would undoubtedly have assisted defence counsel’s cross-examination of L at the
Second Trial. Indeed, paragraph [4] could have been used to challenge L’s answer
25 At [16].
that giving evidence at the Second Trial would not be taken into consideration at sentencing on the Wellington Charges.
[54] Mr Pike then submitted that, on this approach, all the plaintiffs might have lost was merely a chance. That is, the plaintiffs lost the opportunity to cross-examine L about any additional benefit he might have derived in his sentencing on the Wellington Charges. Mr Pike said, if L were not subject to a continuing inducement, then there could be no attack on his veracity because there was no motive to say or not say something in order to obtain advantage. I have already addressed this latter point in the preceding paragraph. The point is that L’s evidence was very important to the Crown case. The Court of Appeal in Machirus
said:26
[17] … Judge Crosbie described [L] as the principal witness of fact for the Crown. He is elsewhere described as the “glue” holding together the Crown case. It was L who gave detailed evidence that he and the co-accused, Mr Clayton, were in partnership and in the business of receiving stolen property. Mr Hall 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. See R v Gray [2008] NZCA 311 [38] citing R v
Hadfield CA337/06 14 December 2006 at [11].
[55] Mr Pike suggested the plaintiffs need to prove there was a realistic prospect that, had the plaintiffs possessed a full copy of the Sentence Indication, it was highly likely the jury would have reached a different verdict. He referred to the Supreme Court’s recognition that it is a near impossibility to reconstruct a trial and determine
the outcome.27
[56] For the purposes of a defendant’s application for summary judgment, there is no need to go further than the Court of Appeal’s conclusion as to the significance of
L’s evidence:
26 R v Machirus, above n 4.
27 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [102].
[21] 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.
[57] Mr Pike then addressed the need for a causal connection between the abuse of office and the intentional or subjectively reckless intention of causing harm to the plaintiffs.28
[58] The transcript of the legal discussion before the trial Judge on 21 August
2007 confirms the Judge did not have a copy of the full Sentence Indication and considered he would have been assisted had he done so. Counsel for the accused were in the same position and commented to that effect.29 In that context Ms Currie
said:30
There is no question whatsoever of late disclosure or material being held back.
[59] I accept Mr Maze’s submission that this context provides at least a foundation for the plaintiffs to allege either an intention or recklessness on the part of Ms Currie. What her true position was is a matter to be explored at trial.
[60] To summarise, neither statement of claim in its current form relies solely on the allegations about the Christchurch Charges in respect of any of the causes of action. 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.
[61] The essence of the plaintiffs’ claims is that Ms Currie possessed relevant
information which she had a duty to disclose; that given her experience and
28 Garrett v Attorney-General [1997] 2 NZLR 332 (CA).
29 R v Clayton DC Christchurch CRI-2006-009-7821, 21 August 2007 (Transcript of Legal
Discussion and Submissions on 21 August 2007 before Judge M A Crosbie) at 28.
30 At 35.
expertise, she must have appreciated its significance and she failed to disclose 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.
[62] In these circumstances, it cannot be said that the plaintiffs’ claims in
misfeasance in public office cannot succeed.
Breach of right to a fair trial under the NZBORA
[63] In Mr Pike’s submission the same considerations apply to this claim, although he accepted the test is somewhat lower than that applying to misfeasance in public office. In his submission, however, the onus was on the plaintiffs to show there was in fact a breach of the plaintiffs’ rights under the NZBORA and something which could have affected the trial.
[64] Mr Maze acknowledged that Ms Pelenato was found not guilty but in his submission that did not preclude her seeking and obtaining a declaration that her rights to a fair trial had been breached.
[65] In its decision on the strikeout, the Court of Appeal noted Baigent damages are an “exceptional remedy”31 and 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.32 The Court said:33
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.34
31 The Court of Appeal strikeout decision, above n 2, at [24] citing Brown v Attorney-General [2003] 3 NZLR 335 (HC) at [118]; Philip A Joseph Constitutional & Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [27.3.4(2)].
32 At [82] citing Grant Huscroft “Civil Remedies for Breach of the Bill of Rights” in
Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne,
2003) 811 at 816-817 and Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Brookers, Wellington, 2013) 1021 at [19.3.02].
33 At [82].
34 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [256] mentions exclusion
[66] In relation to Mr Clayton’s proceedings, the Court observed:35
It is also arguable Ms Currie breached her duty to disclose to the Court and the accused all information in her possession relating to the sentencing inducement offered to L, and that this breach of duty led to the successful appeal and the subsequent stay of proceedings. Mr Pike conceded that Ms Currie, acting in her official capacity as a Crown prosecutor, made a mistake in not disclosing the relevant parts of the sentencing indication and accepted that the accused in the trial had been placed at an unfair disadvantage by the non-disclosure. Accordingly, it is arguable the respondents’ NZBORA rights have been breached and that the respondents have a claim for Baigent damages as a result of the breach.
…
For the purposes of strike-out, it cannot be said that the essential elements of the NZBORA cause of action are incapable of being satisfied. 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.36 Whether compensation is appropriate in the circumstances of this case is a matter for trial.
[67] There is no dispute that the plaintiffs had the right to the Sentence Indication (or the information contained therein), they had the right to use it at the Second Trial and they were deprived of that right. The Court of Appeal decided there had been a miscarriage of justice at the Second Trial. Those factors taken together means that the plaintiffs have at least an arguable case that their rights to a fair trial were breached. Rights to a fair trial as prescribed by s 25(a), (e) and (f) of the NZBORA, and the right to justice under s 27, are not restricted to convictions having been entered. Ms Pelenato and Mr Morell have at least an arguable case. Whether ultimately they will be successful at trial is another matter. However, for the purposes of a summary judgment application, it cannot be said that the plaintiffs’ claim in this regard will fail.
Malicious prosecution
[68] In Mr Pike’s submission, Mr Morell’s claim of malicious prosecution has no
prospect of success. Mr Morell had been committed for trial and unsuccessfully applied to be discharged pursuant to s 347 of the Crimes Act 1961 (which then
of evidence; Andrew Butler and Petra Butler The New Zealand Bill of Rights: a commentary
(LexisNexis, Wellington, 2005) at [27.7.3] also mention stay of prosecution.
35 The Court of Appeal strikeout decision, above n 2, at [90] and [92].
36 See discussion in the Court of Appeal strikeout decision at [81]–[88].
applied) prior to the Second Trial.37 The fact the trial Judge discharged Mr Morell after the Crown case closed, having heard all the Crown evidence and it being tested, does not mean that the first s 347 decision was wrong. I accept that submission.
[69] The defendants accept the case against Mr Morell in the Second Trial was perhaps not as strong as the case against the other defendants but in Mr Pike’s submission it is near impossible to conclude as a question of law that Ms Currie could not have considered it reasonable and proper to try the case against Mr Morell.
[70] Furthermore, the credibility of L on which the plaintiffs rely was not an issue when the question of whether there was probable cause for Mr Morell to be committed for trial was being considered.38
[71] In Mr Pike’s submission, Mr Morell would need to allege that when the Sentence Indication came into the prosecution’s hands, it became evident that the charges against Mr Morell were untenable. He said, not only is that not pleaded, but there is nothing to indicate, nor anything pleaded to the effect, that L’s evidence was inculpatory of Mr Morell.
[72] I am unable to see how this cause of action can succeed. Mr Maze accepted that at a minimum the pleading requires amendment. I urge him to give it careful consideration.
Deceit
[73] The cause of action in deceit was struck out in the Clayton Proceedings but the defendants did not pursue the strikeout application in the Machirus Proceedings. However, for the same reasons as relied on by the Judge who struck out the cause of action in deceit,39 Mr Pike submitted that the deceit cause of action could not
succeed in the Machirus Proceedings.
37 R v Morell DC Christchurch CRI-2005-009-7821, 11 May 2007.
38 Both Ms Pelenato and Mr Morell had been committed for trial before the first defendant’s error.
39 Associate Judge’s decision, above n 13.
[74] The essence of the tort lies in fraud. At the time of the Associate Judge’s decision, Mr Clayton and Ms Westburys’ pleadings were insufficient to make out the element of fraud, and the cause of action in deceit was struck out. 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,40 but I cannot completely rule out the cause of action.
[75] I have noted Mr Pike’s submission the tort of deceit is more suited to the commercial context. There is, as the Associate Judge considered, “considerable force” in the proposition that such a tort should be confined to this context, in these circumstances.41 I encourage Mr Maze, in light of these considerations, to consider whether the cause of action in deceit should be pursued in the Machirus Proceedings.
Conclusion
[76] For the reasons set out above, I am not satisfied none of the plaintiffs’ claims can succeed. The defendants’ summary judgment application is dismissed.
(ii) Further and better discovery
The law
[77] The application is made under r 8.21 of the High Court Rules, whereas it should have been made under r 8.19, under which an order for particular discovery against a party can be made after a proceeding is commenced.42 The rule allows a Judge to make an order if the applicant establishes grounds for a belief that the party is in, or has been in control of, a document or class of document that should have been discovered.
[78] The starting position is a presumption that the affidavits of documents already filed are conclusive.43 In considering an application under r 8.19, the Court
40 The plaintiffs are required to prove Ms Currie lacked an actual and honest belief in the truth of her representation: ASB Securities Ltd v Geurts [2005] 1 NZLR 484 (HC) at [79] and The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington, 2016) at 818.
41 Associate Judge’s decision, above n 13, at [73].
42 That error can however be remedied for the purposes of this proceeding, pursuant to the
High Court Rules, r 1.9.
43 McCullagh v Robt. Jones Holdings Ltd [2015] NZHC 1462 at [7].
needs to consider whether the documents sought are relevant and, if so, their importance; whether there are grounds for belief the documents exist; and whether discovery is proportionate. The Court then exercises its discretion as to whether an order is appropriate after weighing and balancing these matters.44
The application
[79] The plaintiffs in the Clayton Proceedings seek further discovery from the defendants of:
(a) All documents and submissions made by or on behalf of the first defendant and/or Mr Barnaby Hawes in relation to the private prosecutions against same by the 1st Plaintiff and the Plaintiff Machirus; and
(b) All documents relating to the movements of L before, during and after giving evidence in Christchurch at the second trial, including any recommendations to encourage L’s participation ….
[80] The application had also sought information relating to the police interaction with Ms Pelenato but, after discussion at the hearing, Mr Allan properly conceded that was no longer to be pursued.
Private prosecution
[81] Mr Clayton and Mr Machirus commenced private prosecutions against Ms Currie and Mr Hawes, who also appeared for the Crown at the Second Trial. The Solicitor-General stayed those proceedings. Mr Clayton and Ms Westbury seek communications between Ms Currie and/or Mr Hawes to and from the Solicitor-General, seeking to ascertain what was said which resulted in those prosecutions being stayed.
[82] The private prosecutions both alleged the actions of the first defendant amounted to an attempt to pervert the course of justice. The communications are sought on the basis that the response by the first defendant to the Solicitor-General “must have some reference to her intentions and knowledge at the time and are
therefore relevant” to the proceeding.
44 McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR 8.19.03] and Assa
Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760 at [13] and [14].
[83] Mr Barr, appearing for the defendants on this application, informed the Court that the defendants’ documents comprise three letters to the Solicitor-General from counsel acting for Ms Currie and Mr Hawes. The plaintiffs have previously sought those documents pursuant to an Official Information Act request, which was declined for privacy reasons.
[84] I agree with the defendants that, as the three letters were prepared by counsel as submissions and are not statements made by the first defendant, they are irrelevant.
Movements of L before, during and after the trial
[85] Mr Allan accepted that the application was too widely drafted and confirmed he would confine the dates to start at 22 May 2007 and finish on the date L was returned to prison following giving his evidence at the Second Trial.
[86] The basis for seeking this information is the plaintiffs’ understanding that L was in the custody of the police rather than the Department of Corrections at the time of the Second Trial and “given substantial freedoms” which would qualify as a benefit. The documentation already discovered shows that Ms Currie was aware of this. However, there is no basis for the suggestion made at the hearing that during the trial L was accommodated in a hotel and able to receive visits from his girlfriend.
[87] The concerns the police held for L’s safety are discussed above at [40] to [44] in the context of L’s custodial status. The police applied, pursuant to s 62 of the Corrections Act 2004, for L to be released into police custody during the Second Trial. This provision allows Corrections temporarily to release a prisoner from custody for any purpose specified in the Corrections Regulations 2005 to facilitate, relevantly, furthering the interests of justice.45 Mr Allan suggested that the purpose in this case was not in fact covered by reg 27 of the Corrections Regulations 2005. Whether or not that is correct is not for me to determine in the context of this
application.
45 Corrections Act 2004, s 62(2)(a)(iii).
[88] What is important, however, is that the accused at the Second Trial sought information about L’s status during the trial. Ms Currie in fact wrote to Mr Machirus and copied all counsel, by letter dated 23 July 2007, relevantly saying:
3.There are no additional job sheets in relation to contact the Police have had with [L] since the last trial. Any calls or visits to [L] have been for safety checks and to discuss his logistical movements for trial, i.e. transport, security measures etc. His evidence has not been discussed.
[89] Disclosure has also been made of an affidavit sworn on 23 November 2007 by Mr Stuart McGowan, a Detective Sergeant and Second Officer in Charge of Operation Rhino. The affidavit, which was produced for the purposes of a name suppression application on behalf of L, contained an explanation of the measures undertaken by the police during the depositions hearing for the Second Trial and the trial itself “to ensure [L] remained safe”.
[90] The defendants therefore say they have complied with their discovery obligations. Mr Barr noted the letter to Mr Machirus and the affidavit have been available to the plaintiffs since November 2015 but despite that, there has been no amended pleading on this issue.
[91] I am satisfied that the defendants have complied with their discovery obligations as far as this issue is concerned. It is discussed in more detail in respect of the application for non-party discovery.
[92] For this reason the application for further discovery is dismissed.
(iii) Non-party discovery
The law
[93] The application for non-party discovery is made under r 8.19 of the High Court Rules, whereas in fact it should correctly have been made under r 8.21, under which an order for particular discovery against a non-party can be made if the Court is satisfied the non-party is in control of documents which it would have been required to discover if the non-party were a party to the proceeding.
[94] The power to make an order is discretionary and, in determining the application, the Court should have regard to the test for standard discovery under r 8.7.46 All considerations in the usual discovery context, including relevance and proportionality, apply.47 Under r 8.2(1)(a), parties are to cooperate to ensure discovery is proportionate to the subject matter of the proceeding. Relevance is assessed having regard to the pleadings.48
[95] An order for non-party discovery will be made if reasonably necessary where other sources of evidence are unlikely to be sufficient because they are materially incomplete or unreliable. The documents should make a real difference and not merely be marginal.49
The application
[96] The plaintiffs in the Clayton Proceedings seek discovery from the New Zealand Police of all documents relating to L’s movements before, during and after the Second Trial. The part of the application relating to Ms Pelenato was withdrawn at the hearing. The application also seeks documents relating to complaints to the Legal Complaints Review Officer (LCRO).
Documents sought from New Zealand Police
[97] Mr Kinsler, who appeared for the police on this application, submitted the documents sought were not relevant to the proceeding. Furthermore, that the plaintiffs were aware of the police concerns about L’s safety in light of the threats made against him, and the management of L and steps taken to ensure his safety in those circumstances were, in his submission, matters for the police.
[98] As against that, in Mr Kinsler’s submission, the breadth of the orders sought
would capture a large class of material which is irrelevant and the scope of the orders sought was oppressive, disproportionate and unreasonable.
46 Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670 at [28]
and [29].
47 Westpac New Zealand Ltd v Adams [2013] NZHC 3113 at [26]-[27].
48 Chatfield & Co Ltd v Commissioner of Inland Revenue [2016] NZCA 614 at [21].
49 Vector Gas Contracts, above n 46, at [7] and [30].
[99] I agree with Mr Kinsler’s submissions. This class of documents significantly moves away from anything which is relevant to the case. Mr Allan sought the documents on the basis of his submission that steps taken by the police could have amounted to a benefit to L, something the first defendant had an obligation to investigate and disclose to the defendants in the Second Trial. However, I agree with Mr Kinsler that steps taken by the police as part of their general duty can hardly be considered an inducement. It is difficult to see how the fact of L being threatened with significant violence to the extent of needing police protection could be seen in any way as a benefit to L. It was simply part and parcel of the police obligation to ensure L’s safety when he was giving evidence for the Crown at the Second Trial.
[100] Furthermore, it is difficult to see any loss caused to the plaintiffs in this respect. The fact the police had significant concerns for L’s safety could only have benefited the way in which the jury perceived L and have an adverse effect on the accused in the Second Trial, whether or not they were directly responsible for any threats to L.
[101] Furthermore, the plaintiffs already have sufficient detail from the disclosure already made (including of course the letter from Ms Currie shortly before commencement of the Second Trial).
[102] For these reasons I conclude that the documents sought not only are not relevant to the claim but an order for non-party discovery is not reasonably necessary as the documents would not make a real difference.
Documents sought from Legal Complaints Review Officer
[103] The application seeks all documentation relating to complaints dealt with by the LCRO, made by Mr Machirus and Mr Clayton against Ms Currie and others, including the transcript of evidence given at the relevant hearings.
[104] It appears Mr Machirus complained about Ms Currie to the Lawyers’ Complaints Service set up by the New Zealand Law Society under s 124 of the Lawyers and Conveyancers Act 2006 (the Act). His complaint was in May 2009 and
was dealt with by the relevant Lawyers’ Standards Committee50 who, after considering the complaint on the papers, made a determination in November 2010. Both Mr Machirus and Ms Currie sought a review of that determination, which was carried out by the LCRO under the Act.
[105] The LCRO does not hold the original complaint file but receives a copy of the file from the relevant standards committee.51 The LCRO conducted a review and issued its decision in January 2012. Ms Currie sought judicial review of that decision, the result being that the matter went back to the LCRO, who issued another decision at the end of 2015.
[106] The LCRO opposes the application on the grounds Mr Clayton is using it for a collateral purpose, being to circumvent the provisions of the Act, and in any event the discovery is broad and vague.
[107] In Mr Allan’s submission, a transcript of the hearing is relevant because cross-examination took place and what Ms Currie might have said at that hearing was relevant to the proceeding and potentially of use in cross-examination of Ms Currie.
[108] Mr Barr acknowledged Ms Currie would be entitled to the transcript if the LCRO agreed. However, she would be required not to disseminate it and should she do so, it would undermine the provisions of the Act.
[109] Every review conducted by the LCRO under the Act is conducted in private.52 It is at the LCRO’s discretion as to whether a decision ought to be published as being necessary or desirable in the public interest.53 All evidence and information received by the LCRO must be disclosed to every party, subject to the right of the LCRO, where there is good reason to do so, to refuse to disclose
evidence or information it holds.54
50 Lawyers and Conveyancers Act 2006, s 126.
51 Powers of “review” are conferred on the LCRO by s 193 of the Act and the LCRO does not hold
original complaint files, Notice of Opposition on Behalf of the LCRO, 13 April 2017 at [3](d).
52 Section 206(1).
53 Section 206(4).
54 Section 208.
[110] The application is made by Mr Clayton. Mr Machirus sought an audio file of the LCRO review hearing but this was declined under s 208 given he would not undertake not to disseminate the audio file.55 If Mr Machirus seeks to renew his application on the basis he will now agree to conditions, that is a matter for him and the LCRO.
[111] Mr Clayton is not entitled to what he seeks given the provisions of the Act. To do so would be to undermine the provisions of the Act in relation to the privacy of reviews and disclosure of documents by the LRCO. Furthermore, I am not satisfied that the documents are necessary in that they might make a real difference as opposed to being marginal.
[112] For these reasons, the application for non-party discovery against the LCRO
is dismissed.
(iv) Application for security for costs
[113] The defendants seek an order for security for costs against all the plaintiffs except Ms Westbury, who is legally aided. The amount sought is $120,000 divided equally between them.
[114] The plaintiffs in the Machirus Proceedings have all applied for legal aid and the outcome of the application is awaited. Mr Clayton has chosen not to apply for legal aid. The defendants accept that, if the Machirus plaintiffs are granted legal aid, they would not pursue the application and in all the circumstances would not pursue it against Mr Clayton either.
[115] The grounds for the application are that there is reason to believe the plaintiffs may not be able to, or will not, meet an award of costs should the defendants succeed at trial. The defendants also refer to the way in which the
plaintiffs have conducted the proceedings to date.
55 At the hearing, Mr Machirus produced an affidavit saying that he would bring his own application if Mr Clayton’s application were declined and would undertake to abide by any conditions required by the Court.
[116] Mr Barr referred to the fact all the plaintiffs in the Machirus Proceedings have applied for legal aid as evidence of their inability to pay costs if unsuccessful and that Mr Clayton throughout 2016 indicated he was considering such an application. Furthermore, Mr Machirus is an undischarged bankrupt.
[117] The plaintiffs’ non-compliance with their discovery obligations resulted in the Court making an unless order in both sets of proceedings. Those orders were not complied with, resulting, in the case of the Machirus Proceedings, to the special damages claims being struck out and in the Clayton Proceedings, to Ms Westbury’s special damages claim being struck out.56 The defendants’ position is that discovery is still inadequate but they will deal with the case on the basis of what is available.
[118] The defendants also point to alleged deficiencies in the pleadings, saying the plaintiffs have repeatedly shifted their position, particularly in relation to whether there has been any inducement and/or benefit to L. There have been six statements of claim in the Clayton Proceedings, and three in the Machirus Proceedings. The indications at the hearing were that there will be further amendments to both statements of claim.
[119] In this regard I note that for a time the plaintiffs were self-represented. Mr Maze was only instructed in late 2016. Counsel also say that amendments to the statements of claim will depend upon the application for further discovery.
[120] The application is opposed. In Mr Maze’s submission, it is an attempt by the defendants to “torpedo” the hearing on its merits. The plaintiffs point out that the proceedings are now at least three years and seven months old. The application for security for costs was made in September 2015 but has not been pursued by the defendants, who instead have pursued interlocutory applications, including the application to strike out, which went as far as seeking leave from the Supreme Court to appeal the Court of Appeal decision. It would be, in the plaintiffs’ submission, unfair for the defendants to be granted security for costs which would prevent the
matter going to a substantive hearing.
56 Clayton v Currie [2016] NZHC 2815.
[121] Mr Allan also submitted that Mr Clayton should not be ordered to pay security because, as Ms Westbury is legally aided, the defendants will face a marginal increase in their costs only in defending Mr Clayton’s claim. As against that, Ms Westbury’s legally aided position would generally mean a costs award would not be made against her if her claim fails but there would be nothing to preclude a costs award against Mr Clayton.
[122] The defendants also rely on what they say is the relative weakness of the plaintiffs’ cases. In that regard there is certainly a significant problem as discussed above, over Mr Morell’s claim for malicious prosecution. The prospect of Ms Pelenato’s claim in all causes of actions should also be given careful consideration, given she was acquitted at the trial. The cause of action in deceit remains weak in the Machirus Proceedings.
[123] This is a finely balanced decision. On one hand there is a reasonably good foundation for a claim under NZBORA at least, but on the other hand there is clear evidence of impecuniosity.
[124] As a matter of public policy, meritorious claims should not be thwarted by an award for security for costs. The reasonably good foundation for the NZBORA claims and the public interest overtones to these proceedings go to the discretion to decline security for costs.57 Added to this are the resources available to the defendants to defend the proceedings, evidenced by the interlocutory steps taken by them to date. My overall assessment is that it would not be right to make the plaintiffs pay security for costs in the circumstances, particularly given these proceedings are over three and a half years old.58
[125] There should now be no need for any further interlocutory applications and the parties should progress the cases to a trial.
57 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017.
58 Any aspect of delay in applying for security for costs is a factor to be brought into account in the
Court’s exercise of its discretion: Jo v Johnston [2013] NZHC 552 at [18].
(v) Application to set aside interrogatories
[126] The defendants had applied for an order limiting interrogatories in the Machirus Proceedings. Mr Maze confirmed that the plaintiffs were no longer pursuing interrogatories and accordingly the application can be treated as withdrawn.
Result
[127] For the reasons given:
(a) The defendants’ application for summary judgment is dismissed.
(b) Mr Clayton and Ms Westburys’ application for further discovery is
dismissed.
(c) Mr Clayton and Ms Westburys’ application for non-party discovery is dismissed.
(d) The defendants’ application for security for costs is dismissed. (e) The application to set aside interrogatories is withdrawn.
[128] There being a range of results, the parties are asked now to address costs. There would seem no reason why costs on a 2B basis should not follow the event in respect of each application, save as against Ms Westbury. If there is no agreement as to costs, the plaintiffs are to file and serve any application for costs within 21 days of this decision, with any response from the defendants seven days thereafter.
Directions
[129] The plaintiffs have signalled potential amendments to the statements of claim. The Machirus Proceedings need further consideration. Any amended
statements of claim are to be filed and served within 28 days of the date of this judgment and any defence 14 days thereafter. The Registrar is directed to convene a case management conference with an Associate Judge on a date after 4 August 2017.
Thomas J
Solicitors:
Patient & Williams, Christchurch for Mr Clayton and Ms Westbury
S B Law, Christchurch for Mr Machirus, Ms Pelenato and Mr Morell
Crown Law, Wellington for Defendants
Meredith Connell, Wellington for Commissioner of Police
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