Clayton v Currie

[2012] NZHC 2777

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2011-409-1178 [2012] NZHC 2777

BETWEEN  VINCENT JAMES CLAYTON First Plaintiff

ANDLINDA JOYCE WESTBURY Second Plaintiff

ANDPHILIPPA CURRIE First Defendant

ANDRAYMOND DONNELLY & CO Second Defendant

ANDTHE CROWN SOLICITOR AT CHRISTCHURCH

Third Defendant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Fourth Defendant

Hearing:         25 September 2012

Appearances: P N Allan for the Plaintiffs (Respondents) J C Pike for the Defendants (Applicants)

Judgment:      23 October 2012

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on Tuesday 23 October 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

P N Allan, Barrister, Christchurch. Email: [email protected]

J C Pike, Crown Law, Wellington. Email: [email protected]

CLAYTON & ANOR V CURRIE & ORS HC CHCH CIV-2011-409-1178 [23 October 2012]

A review

[1]      The  defendants  have  applied  to  review  a  decision  of  Associate  Judge Osborne.1     The Associate Judge refused to strike out two of the three plaintiffs’ causes of action against the defendants.  The Associate Judge’s reasons, to the extent necessary, will be discussed later in this judgment.

Background

[2]      The first defendant (Ms Currie) is a partner in  the  Christchurch firm  of Raymond Donnelly & Co, the second defendant.  Mr B Stanaway, who is a partner in the same firm, holds the warrant to act as the Crown Solicitor at Christchurch.

[3]      Ms Currie was the prosecutor for an August 2007 trial in the Christchurch District Court.  The first plaintiff Mr Clayton and his wife, Ms Westbury (the second plaintiff) were accused.2    They were not the only accused.  A co-accused was Mr Machirus.   The Crown case was that the accused were part of a large scale commercial burglary and receiving ring.  Mr Clayton faced a number of charges of receiving, fraud, and using a document with intent to defraud.  Ms Westbury faced

receiving charges.

[4]      The  jury  convicted  Mr  Clayton  on  34  counts  of  receiving.     He  was subsequently sentenced to five years imprisonment.  Ms Westbury was convicted on nine counts of receiving and sentenced to 200 hours community work.

What went wrong?

[5]      A crucial  Crown  witness  at  the August  2007  trial  was  Mr  L.    He  was originally a co-accused who stole property from Christchurch residences under construction and, on his evidence, on-sold the property to Mr Clayton, his wife, and Mr Machirus.  L had pleaded guilty and received some credit for his guilty pleas and

assistance which he gave to the police.   He gave evidence at the aborted October

1 Clayton v Currie [2012] NZHC 1475.

2 There was an earlier trial in October 2006 which was aborted.

2006 trial and was apparently cross-examined on his assistance to the police and his motivation to lie.

[6]      Between the two trials L re-offended.  He was scheduled to be sentenced in the Wellington District Court in late August 2007.

[7]      On 31 May 2007 Judge Radford gave L a sentencing indication.  The manner in which Ms Currie disclosed that sentencing indication to the accused in the August

2007 trial forms the basis of the plaintiffs’ claims.

The sentencing indication3

[8]      Judge Radford relevantly said:

[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 propose to detail within this memorandum, save to say that what is to transpire is very much to his credit.

...

[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 of the offending and of course significant discount for the matter which involves the Christchurch trial.  [Emphasis added]

...

[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:

...

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]

3 Police v L DC Wellington CRI-2007-32-000094, 31 May 2007.

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.  [Emphasis added]

[9]      There is clearly an inherent conflict or ambiguity arising out of the italicised portions of the late Judge’s remarks.   The first comment at [4] suggests L might obtain a significant discount for some “matter” involving the Christchurch trial.  The remark in [6](b) cautions that the sentence to be imposed would not be influenced “in any way” by what occurred in Christchurch and significantly the sentence would not be influenced in any way by how L conducted himself in the Christchurch trial.

[10]     It is sound practice to sentence prisoners who intend to assist the Crown with evidence in prosecuting others before the relevant trial.  This practice neutralises the obvious line of cross-examination of the prisoner that his evidence is being tailored to gain some subsequent benefit.   The late Judge Radford would have been well aware of this dynamic, which doubtless accounts for what he said in [6](b).

[11]     Nonetheless the inconsistency italicised in [4] leaves the chink that a discount might be forthcoming.

[12]     Had Ms Currie disclosed Judge Radford’s sentencing indication in its entirety there would be no basis on which the plaintiffs could launch their substantive proceedings.  But for reasons which are currently unexplained, Ms Currie did not do so.  Hinc illae lacrimae.4

What did Ms Currie do?

[13]     L was a crucial witness for the Crown. Without his evidence it is arguable the

Crown would have had a weak case against the accused in the August 2007 trial.

[14]     During  the  course  of  that  trial  (it  occupied  some  weeks)  the  accused discovered that L was appearing in the District Court in Wellington.   Inquiry was made of Ms Currie.  Ms Currie at that stage had no knowledge of, and indeed no

connection with, what was occurring in Wellington, where another Crown solicitor

4 Hence the source of those tears.

was involved.  She made urgent inquiry of the Wellington District Court Registrar. As a result of her inquiries she became aware of what was happening to L in the Wellington District Court. This, of course, was mid-trial.

[15]     Ms Currie then wrote to all counsel and self-represented accused as follows:

Re:     Operation Rhino

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 fild 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 (sic) 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.”

...

This letter was also provided to the Judge presiding over the August 2007 trial.

[16]     Ms  Currie’s  disclosure  was  thus  inaccurate  inasmuch  as  it  omitted  the

relevant portion of [4] of Judge Radford’s notes.

What happened next?

[17]     In the wake of his conviction one of the plaintiffs’ co-accused, Mr Machirus, appealed.  His appeal was allowed.  His convictions were set aside and a retrial was ordered.5   The Court of Appeal received submissions from Mr Stanaway, the Crown Solicitor in Christchurch, which referred, inter alia, to an earlier appearance by L on

22 May 2007, his subsequent sentencing on 28 August 2007, and a possible interpretation of [4] of Judge Radford’s remarks.  It is unnecessary to consider those submissions, which the Court of Appeal clearly rejected.

[18]     The Court of Appeal stated:

[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.

[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.

[17]      Mr Hall submitted that the trial miscarried on 21 August when the

Judge received the letter but not the sentencing notes. We agree....

5 R v Machirus [2008] NZCA 477.

[19]     Encouraged by Mr Machirus’ success in the Court of Appeal Mr Clayton and another also appealed successfully.6   The Crown elected not to proceed with the third trial.  Criminal proceedings against the plaintiffs were stayed.

The claim

[20]     Mr Clayton and Ms Westbury, who are now resident in Australia, consider that the actions of Ms Currie caused them loss and damage.   It is alleged that Ms Westbury had to sell three businesses (bars or taverns) as a result of reputational damage causing the loss of $1,004,000.  Compensation for assets allegedly taken by the police and never returned in the sum of $50,000 is sought by both plaintiffs respectively.   There are also claims for aggravated damages, exemplary damages, and indemnity costs.

[21]     Given that the plaintiffs had their convictions quashed by the Court of Appeal and were never retried, the preferred route to compensation is to allege claims in tort. Three causes of action were pleaded.   The first is problematically grounded on ss 25(a), (e), and (f), of the New Zealand Bill of Rights Act 1990 (NZBORA).  The minimum rights of a fair and public hearing by an independent impartial court, the right to be present at trial and present a defence, and the right to examine and produce witnesses are alleged to have been breached by Ms Currie not disclosing the full sentencing indication.  It is alleged that the plaintiffs and the Court were misled.

[22]     The second cause of action calls into aid the tort of deceit.

[23]     The third cause of action relies on the tort of misfeasance in public office. Both  Ms  Currie and  the  Christchurch  Crown  Solicitor are  alleged  to  be public officers. The statement of claim pleads that each of them, jointly and severally, acted unlawfully in the exercise of their offices and knowingly misapplied their powers and authorities which amounted to an abuse of the office.  It is further alleged that both defendants acted with malice towards the plaintiffs knowing their unlawful

conduct was likely to injure the plaintiffs.

6 R v Clayton [2008] NZCA 493; R v Coutts [2009] NZCA 347.

What did the Associate Judge do and why?

[24]     The defendants applied to have all three causes of action struck out.  The law governing strike out applications was common ground and correctly applied by the Associate Judge.  It is not an issue on review.

[25]     The Associate Judge struck out the second cause of action (deceit).  Not all the essential ingredients of that tort were present.   There is no challenge to that aspect of his decision.

[26]     In respect of the other two causes of action, the Associate Judge dismissed the strike out application.   He considered that, on the basis of their pleading, the plaintiffs had made out the basis for each cause of action.

[27]     I set out briefly the Associate Judge’s reasoning.

Section 25 NZBORA claim

[28]     Before the Associate Judge Mr Pike had reserved for later argument, as he did on this appeal, the argument that any remedies for a breach of s 25 of NZBORA were self-contained within the criminal justice process and were not amenable to an award for public law damages.

[29]     The defendants’ argument in that regard would call into aid the judgment of William Young J in Brown v Attorney-General7 and the subsequent approach by the same Judge and McGrath J, in the Supreme Court, to leave open whether public law compensation was available for breach of fair trial rights.8

[30]     Counsel were agreed that I should reserve that point.  Procedurally the only way that issue can be raised in this proceeding, other than after trial, would be to grant leave to either party to appeal my judgment to the Court of Appeal.   Such

leave, if sought, will be granted without the need for a hearing.   The issue is an

7 Brown v Attorney-General [2005] 2 NZLR 405 (CA) at [120]-[141].

8 Attorney-General v Chapman [2012] 1 NZLR 462.

important one of legal policy which only a higher appellate court can determine.  It is an issue indeed on which there may well not be unanimity.

[31]     The Associate Judge referred to the defendants’ submission that the Court of Appeal in R v Machirus9  had not found that the plaintiffs’ fair trial rights had been breached.   It instead found there had been a miscarriage of justice.10     What had occurred was a trial error which would not necessarily amount to a breach of s 25(a) of NZBORA.

[32]     The Associate Judge considered there was a strong argument the Court of Appeal’s judgment in Machirus was consistent with the appellant’s fair trial rights being  breached.    He  considered  that  a  similar  argument  was  available  to  the plaintiffs.  What had occurred was not a case of non-disclosure by the prosecution. The Court of Appeal had instead expressly stated that Ms Currie’s disclosure was inaccurate.  The result was Mr Machirus (and also the plaintiffs) had been placed at “an unfair disadvantage”.  Similarly the Associate Judge considered it was arguable that an accused placed at an unfair disadvantage was denied both the right to a fair and  public  hearing  and  was  further  denied  the  right  to  examine  prosecution witnesses.

[33]     The Associate Judge then considered further argument by the defendants that, once the accused at trial became aware of the fact there was a sentencing indication from Judge Radford, they themselves were under an obligation to pursue that issue with due diligence.  The sentencing indication in any event was a matter of public record not in possession of the prosecution.

[34]     This argument, based in part on the Supreme Court of Canada decision of R v Dixon11 (with which I shall deal briefly in a later section of this judgment), was said by the defendants to be a matter of causation.  Any consequential loss flowed from

the plaintiffs’ omission rather from the defendants’ action.

9 Above n 5.

10 At [12].

11 R v Dixon [1998] 1 SCR 244.

[35]     The Associate Judge rightly saw causation as being a factual matter to be considered at trial.  It had been appropriately pleaded by the defendants.

[36]     The final point dealt with by the Associate Judge arose out of Simpson v Attorney-General.12    The defendants had submitted that it was clear from Baigent that compensation was discretionary and might be appropriate in cases where it was necessary to provide an effective remedy.   The plaintiffs had already obtained the remedy of having their convictions quashed on appeal.   They had additionally benefited from the Crown Solicitor’s stay, so they were no longer vulnerable to

prosecution and conviction.

[37]     The  Associate  Judge  saw  matters  relating  to  quantum  of  damages  or discretion in relation to awards as being matters for trial.  So too was the issue of whether the damages sought by the plaintiffs could properly flow from Ms Currie’s actions.   The plaintiffs had pleaded that the defendants’ conduct was “truly exceptional and outrageous”.   Were that to be established, then exemplary or aggravated damages might be awarded.

Misfeasance

[38]     The Associate Judge set out the elements of the tort by reference to Three Rivers District Council v Bank of England (Number 3),13 and Ministry of Fisheries v Pranfield Holdings Limited.14

[39]     The defendants had grounded their strike out application on two points.  The first was Ms Currie did not hold a public office.  The second was that she did not exercise any public functions, powers, or authority of any public office when she wrote the letter.

[40]     The Associate Judge was not prepared to hold that a Crown Prosecutor did not hold a public office.   Nor was he prepared to hold that the duty a prosecutor

12 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).

13 Three Rivers District Council v Bank of England (Number 3) [2003] 2 AC 1 (HL) per Lord Steyn at

191-196.

14 Ministry of Fisheries v Pranfield Holdings Limited [2008] 3 NZLR 649 per O’Regan J at 672-673.

owed to the Court was not a duty on which an accused was entitled to sue.   He referred to an analogous case in which he had been involved15 and also to discussion by the Court of Appeal in New Zealand Defence Force v Berryman.16   He concluded that  the issue of whether or not  the tort  of misfeasance in  public office might conceivably attach to the functions of a prosecutor was “unsettled” and “developing”

so far as New Zealand law was concerned.17

[41]     On the issue of whether Ms Currie was exercising the powers or authority of any public office the Associate Judge, by analogy, reached the same conclusion.  He relevantly said:

[93]     For reasons directly parallel to those involved in the question of whether a prosecutor holds a public office at all, the defendants cannot succeed on this ground of their strike out application.   The information inaccurately conveyed by Ms Currie was of fundamental importance to the accused’s rights to criminal justice.  The very fact that it was not accurately conveyed led to the Court of Appeal’s finding of a miscarriage of justice.  It is at least arguable that how the prosecutor came into possession of the relevant information (as carefully analysed by Mr Pike) is beside the point. The fundamental point which Mr Allan seeks to pursue at trial is that once the prosecutor had the information as prosecutor, her failure to disclose it accurately may be found to have been conduct relating to her public office. Assuming a prosecutor is found to hold public office, a boundary may be able to be drawn between what has been done in the public function and what has been done other than in that function.  That is a determination most appropriately made in the light of all the evidence at trial (as was directed in Milgaard v Mackie).18     For now the plaintiffs’ pleadings that there were public office powers involved and that those powers were misapplied are entitled to stand.

[42]     Finally the Associate Judge dealt with the discrepancy between the plaintiffs’ pleadings of malice and the basis on which the Court of Appeal had quashed the various  criminal  appeals.     The  defendants  in  particular,  and  rightly  so,  had complained about the absence of particulars.   These had not been pleaded by the defendants.   Nonetheless the Associate Judge considered that the point raised legitimate issues.  There were no particulars of malice thus the plaintiffs were “on

notice”.19

15 Chesterfields Preschools Limited v Commissioner of Inland Revenue (2011) 25 NZTC 20-092.

16 New Zealand Defence Force v Berryman [2008] NZCA 392.
17 At [81]-[86].
18 Footnote omitted.

19 At [95].

Discussion

[43]     Both counsel essentially ran the same submissions at this review hearing as they had before the Associate Judge. Their submissions were succinct and focused.

[44]     Given that so far as s 25 NZBORA cause of action is concerned, the issues will inevitably come before the Court of Appeal, and possibly the Supreme Court, an extensive judgment from me is not necessary.  This is not a situation where issues can be refined (particularly factual issues) by a court of first instance.  The narrower issue is whether, in the context of a strike out application, the two causes of action as pleaded cannot succeed.

Section 25 NZBORA claim

[45]     Without  in  any  way  detracting  from  the  clarity  and  competence  of  the

submissions, Mr Pike’s argument can be essentially summarised as follows:

(a)      There were far too many “but for” factors which had to be cleared off before it could be asserted the plaintiffs had been denied the right of a fair trial.  Referring to the Privy Council advice on a Scottish appeal, Brown v Stott (Procurator Fiscal, Dunfermline),20  “it was a grave conclusion” that the defendant did not have the substance of a fair trial.   It meant that the administration of justice had entirely failed.

Denial of a fair trial was to be contrasted with cases where a trial had been affected by irregularities.

(b)Although s 25 NZBORA issues had been raised before the Court of Appeal  in  Machirus21   the Court’s  judgment  had  been  based  on  a miscarriage of justice, not denial of fair trial rights.

(c)      Baigent  damages  were  essentially  a  constitutional  remedy.    This remedy should not be available in a situation where an accused knew

20 Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681 at 708.

21 Above n 5.

that a judgment (Judge Radford’s sentencing indication) was available

but did not ask for it to be disclosed.

(d)As the Canadian Supreme Court had said in R v Dixon22 approving an observation below in the Court of Appeal “call for the statements or live without them”.23

This obligation rested on Mr Clayton.   The fact that he was unrepresented at his trial was irrelevant.  Referring again to Dixon24

Mr Pike relied on the following dictum:

It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence.   Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’s obligation to be duly diligent in pursuing disclosure.  To do nothing in the face of knowledge that relevant information has not been disclosed will,  at  a  minimum,  often  justify  a  finding  of  lack  of diligence and may, in certain circumstances, support an inference  that  counsel  made  a  strategic  decision  not  to pursue disclosure.

In essence, an accused cannot remain passive.

In Dixon the accused’s counsel had been provided with copies of police occurrence reports which included summaries of statements given by four witnesses.  The statements themselves, however, were not produced nor did counsel request them.

[46]     I  am  unimpressed  by  this  last  submission  which,  in  the  context  of  Mr Clayton’s trial, I consider to be unrealistic.   Mr Machirus’s counsel (and possibly others), having got wind of a sentencing process relating to L, made inquiry of Ms Currie.  She for her part carried out inquiries with the Wellington District Court.  She took the trouble of writing a letter to be distributed to the accused and their counsel. This  took  place  well  into  a  complicated  multi-accused  trial.    In  my  judgment,

defence counsel were entitled to take Ms Currie’s disclosure at face value and were

22 Above n 11.

23 At [277].

24 At [276].

further entitled to assume that the disclosure had been fully made.   It would run totally counter to the collegiality and ethos of the Bar for counsel to approach Ms Currie and say “thank you for your letter but I want to see Judge Radford’s full notes” or words to that effect.  To do so (wise after the event though that might be) would have carried with it a clear inference that Ms Currie’s disclosure was not to be trusted.  Cynical, distrusting, misanthropic, or aggressive counsel (fortunately few in number) might have done just that.  But to suggest that, having received Ms Currie’s letter, counsel should have inquired further and/or sought out further information as suggested in Dixon is, in my view, unreal.

[47]     Returning to Mr Pike’s submissions he further argued:

(e)      The Associate Judge was wrong to conclude that the plaintiffs at their trial “might have been at an unfair disadvantage” as the Court of Appeal found.   Baigent compensation is not available as of right and the Court’s supervisory jurisdiction is wide.  The Associate Judge’s conclusion could not be made in the face of such imponderables as to whether, on a retrial, L’s evidence would have been admitted or excluded by the Judge, believed or disbelieved by the jury, was relevant or irrelevant to the various counts which the plaintiff faced.

(f)       Repeating what was submitted to the Associate Judge, the plaintiffs had already obtained a remedy by their convictions being quashed and there being no retrial.   There was thus no sufficient basis to claim discretionary NZBORA compensation.

[48]     There is much force in Mr Pike’s submission.   The miscarriage of justice which the plaintiffs alleged was rectified on appeal. Their retrial never proceeded.  It might well be, as Mr Allan submitted, that the plaintiffs, who were entitled to the presumption of innocence, were indeed innocent.   But it is hard to see how their s 25(a) right to a fair trial has been breached to the extent that they are entitled to civil damages over and above the remedies which they had and exercised in the criminal law process.

[49]     That said, although my personal view is that the plaintiffs have drawn a long bow to the extent that the bow string will snap, for strike out purposes the pleadings suffice.  It is indeed arguable that Ms Currie’s partial disclosure placed the plaintiffs at  an  unfair  disadvantage  during their trial.   And  the issue of  whether  Baigent NZBORA damages are available in respect of criminal procedure breaches has yet to be determined by a higher policy court.

[50]     For these reasons, therefore, I uphold the Associate Judge’s conclusion in

respect of this cause of action.

Misfeasance

[51]     The plaintiffs’ pleading before this cause of action is specific.  They allege that the defendants, jointly and severally, acted deliberately and unlawfully.  They knowingly misapplied their powers of authority which amounted to an abuse of their office. As mentioned25 it is alleged the defendants acted with malice.

[52]     These allegations, presumably made as a result of advice and careful thought, are particularly serious levelled as they are at a Crown Solicitor and a practising lawyer who is an officer of this Court.  The allegation should not be lightly made. Those making them are probably subject to the similar ethical constraints which surround the making of allegations of fraud.  Stripped of the adverbs, the allegation is that Ms Currie, by failing to disclose Judge Radford’s sentencing indication in its entirety, set out on a deliberate course of action designed to harm Mr Clayton and Ms Westbury.

[53]     Mr Pike (as did the Associate Judge) criticises the absence of particulars.  In fairness Mr Allan accepts that malice will have to be particularised.  Mr Pike also submits the pleading is duplicitous and is probably an attempt to plead both targeted and non-targeted misfeasance.

[54]     The essence of the plaintiffs’ argument relating to Ms Currie’s letter is quite

simply that the point of the letter was to take away a challenge to L’s credibility and

25 Supra [42].

ensure  the  plaintiffs  were  convicted.    That  is  a  powerful  submission,  totally dependent on proof of malice against Ms Currie.

[55]     Mr Pike correctly submitted that the nub of the issue is whether Ms Currie (assuming she held a public office) was using the power or authority of her office in relation to her letter disclosing Judge Radford’s sentencing indication.  To succeed the plaintiffs would have to prove abuse of that power by malicious or subjectively reckless actions.

[56]     Stephen  Todd  points  out  that  the  tort  has  in  recent  times  undergone  a renaissance and overlaps in part the availability of civil remedies to compensate loss for human rights breaches.26

Misfeasance in a public office is the single common law tort which applies only to a public rather than a private defendant.  The tort for long attracted only spasmodic attention, but in recent times it has undergone a dramatic revival. A concurrent and wholly new development has been the recognition by  the  Court  of Appeal  of  a  civil  cause  of  action  against  the  state  for compensation  for  loss  occasioned  by  breach  of  the  human  rights  and freedoms laid down by the New Zealand Bill of Rights Act 1990.  The tort and the public law action overlap to a substantial degree, but there are also many points of difference.

[57]     The text to which I have referred helpfully points to the rationale of the tort. Reference is made to Jones v Swansea City Council27 in which Nourse LJ observed:

The assumptions of honour and disinterest on which the tort of misfeasance in  a  public  office  is  founded  are  deeply  rooted  in  the  policy  of  a  free society.... It ought to be unthinkable that a holder of an office of government in this country would exercise a power thus vested in him with the object of injuring a member of that public by whose trust alone the office has enjoyed. It is unthinkable that our law should not require the high standards of a public servant in the exercise of his office.

[58]     The underlying policy was articulated succinctly by Blanchard J in Garrett v

Attorney-General28  as the imposition of a form of liability to prevent the deliberate injuring of members of the public by deliberate disregard of official duty.

26 Stephen Todd The Law of Torts in New Zealand (5th ed, Thomson Reuters, Wellington, 2009) at

920.

27 Jones v Swansea City Council [1990] 1 WLR 54 (CA) at 85.

28 Garrett v Attorney-General [1997] 2 NZLR 332 (CA) at 350.

[59]     The tort has extended (but not always leading to a damages award) to  a diversity of public or government offices, including stock inspectors,29 police officers,30 the grantors of banking licences,31 army officers,32 and prison officers.33

[60]     I have no difficulty with the submission that a Crown Solicitor, who holds a warrant, together with members of his or her staff who conduct the Crown’s business hold a public office for the purposes of the tort.  Certainly, for strike out purposes, it is arguable.  Given the range of work carried out by Crown Solicitors, Crown Law officers and their staff outside courtrooms, there could be no policy objection to the tort being available in appropriately rare cases.

[61]    I consider totally different considerations apply to appearances in court, particularly in the conduct of a criminal trial.  In my judgment neither Ms Currie nor the Christchurch Crown Solicitor were exercising any power or authority during the running of the August 2007 criminal trial involving Mr Clayton and Ms Westbury as accused.  It is for this reason I consider the tort, as pleaded, cannot succeed.

[62]     Two Australian state Court of Appeal authorities make the point powerfully. The first is Cannon v Tahche,34  a decision of the Victorian Court of Appeal.  The facts there bear some similarity to the alleged facts before me.   The plaintiff had been convicted of rape.  His conviction was quashed after evidence the complainant had fabricated similar allegations and a retrial was ordered.  The Director of Public Prosecutions then entered a nolle prosequi.  The plaintiff alleged that the prosecutor,

a barrister, and his instructing solicitor, an employee of the Director of Public Prosecutions, had committed the tort of misfeasance in public office by withholding evidence that the complainant had fabricated her allegation.  The appeal was on a preliminary ruling in the lower court that the tort was engaged.

[63]     The Court of Appeal analysed the tort.  The Court was unanimously of the view that the office of prosecutor did not have, as an incident of it, any relevant

29 Northern Territory v Mengel (1995) 185 CLR 307 (HCA).

30 Above n 27.
31 Three Rivers District Council v Governor & Co of the Bank of England (No 3) [2003] AC 1 (HL).
32 New Zealand Defence Force v Berryman [2008] NZCA 392.
33 Watkins v  Secretary of State for the Home Department [2006] 2 AC 395 (HL).

34 Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317.

power in the discharge of which the public had an interest.  Whatever powers might attach to the office of the prosecutor, when the prosecutor appeared in court he was not exercising any relevant power but rather performing a function of the office. That function was to represent the Crown.35

[64]     The  Court  considered  the  function  of  a  prosecutor  incorporated  ethical “duties of fairness”.  But the Court was clear that, when briefed to prosecute at the plaintiff’s trial, the prosecutor did not assume any office and did not acquire any relevant power.36   The Court referred to the High Court of Australia judgment of R v Apostilides37  which set out a number of propositions relating to the prosecutor’s conduct in a criminal trial.   Nowhere was it suggested that the prosecutor was

exercising any relevant power, judicial, executive, or administrative.

[65]     The  Victorian  Court  of  Appeal  also  considered  a  prosecutor’s  duty  of disclosure was ethical in nature and was a discretionary responsibility exercisable in the circumstances the prosecutor perceived them to be.  The duty was one owed to the court and not enforceable at law at the instance of an accused.38

[66]     Cannon v Tahche39 was followed some years later by the Court of Appeal of New South Wales in Leerdam & Anor v Noori & Ors.40   The Bench there comprised Spiegelman CJ, Allsop P and Macfarlan JA.  That case involved a claim by a refugee claimant who alleged that the Minister of Immigration, and importantly his solicitor

at an administrative appeals tribunal hearing, and the solicitor’s employer, had acted improperly in respect of the detail of allegations relating to alleged war crimes committed  by  the  plaintiff  in Afghanistan.    The  solicitor’s  appeal  from  a  first instance  court’s  refusal  to  strike  out  a  claim  was  grounded  on  the  torts  of

misfeasance in public office and collateral abuse of process.

35 At [61].

36 Ibid.
37 R v Apostilides (1984) 154 CLR 563.
38 At [57]-[59] and [77].
39 Above 34.

40 Leerdam & Anor v Noori & Ors [2009] NSWCA 90.

[67]     The  appeal  was  allowed  unanimously,  the  Court  being  of  the  view  the pleaded causes of action were not maintainable.  Again the tort of misfeasance in public office was analysed.  Cannon v Tahche was approved and followed.

[68]     The Court did not consider that the solicitor acting for the Minister occupied a position that fell within the scope of a tort of misfeasance in a public office.  No relevant power was attached to the public office.

[69]     I regard the analysis of the two Australian Courts of Appeal as compelling.  I also see considerable force in the underlying policy analysis.  Nor is there anything to the contrary in the judgment of Fogarty J (referred to by the Associate Judge) of Chesterfields Preschools Limited v Commissioner of Inland Revenue.41   The focus of the Associate Judge and Fogarty J was on whether counsel was exercising a public office.  In my judgment the focus must instead (as in the Australian cases) be on the

exercise of an alleged power which is capable of being exercised malignly.  There is no such power.

[70]     The distinction between prosecutors’ ministerial function and their role in court is slightly obscured in the New Zealand context. When laying an indictment or making other decisions about the charges an accused will face, prosecutors play a public role and exercise public powers.  However, in the trial that flows from those decisions, prosecutors play the role of an advocate for their cause like any other practitioner appearing in court.  This distinction is more evident in other common law jurisdictions where, for example, the office of a Director of Public Prosecutions will make the decision to prosecute and then deploy a barrister to run the prosecution’s case in court.   In such situations, as the two Australian authorities recognise, the ministerial role of the prosecutor can clearly be distinguished from the advocacy role of the barrister running the case.

[71]     There is a further policy issue, however, of a constitutional nature, on which I rely.  The tort of misfeasance in public office is a common law tort.  Common law courts have developed and expanded that tort to give redress.  The type of redress is

important.   Common law courts are the independent judicial arm of government.

41 Chesterfields Preschools Limited v Commissioner of Inland Revenue (2012) NZTC 20-131 (HC).

Public officers are exercising powers conferred by the other arms of government, usually the executive arm.  In short, the tort is designed to give appropriate redress through damages where an abuse of power has caused economic loss.

[72]     Yet the same third independent arm of government, the judiciary, controls the criminal law process.   The court is effectively holding the balance between the executive arm of the Crown, which is prosecuting, and the citizen.  As the Court of Appeal observed in Cannon v Tahche42 a prosecutor appearing in a criminal court is representing the Crown.  The prosecutor remains an officer of the Court subject to the judge’s supervision and control.   The court has supervisory and disciplinary powers over Crown counsel who appear before it.

[73]     The Crown prosecutor is carrying out a function.  There is no exercise of a power.  The shortcomings or excesses of a prosecutor can lead to redress, as was the case in Micharus.  Such redress is available because judges, as the independent arm of  government,  will  always  ensure  that  the  criminal  justice  system  retains  its integrity and fairness.  In short, as a matter of policy, there is no need to deploy the tort in the circumstances here pleaded.

[74]     There is also a downstream policy issue.  If the tort is to be available to any disgruntled citizen dissatisfied with the criminal justice system in circumstances such as these, Crown prosecutors would be an easy target.  The door would be open to the court being used as an arena for collateral attacks.  The supervising function of courts over the criminal justice process is additionally being bypassed.

[75]     I am certainly not suggesting the tort of misfeasance in public office is never available  against  Crown  solicitors  and  prosecutors.    But,  buttressed  by the two Australian authorities, and considering the underlying policy issues, I have the firm view this should not be available in these circumstances.

[76]     I  have  been  told  from  the  Bar  that  Ms  Currie  has  been  the  subject  of disciplinary  proceedings.    Clearly  the  inadequate  disclosure  of  Judge  Radford’s

sentencing notes led to convictions being quashed.   Control over Ms Currie as an

42 Above n 34.

officer of the Court and the integrity of the criminal justice system have not been imperilled.  The cause of action based on this tort, for the reasons apparent in my analysis of the authorities and underlying policy, should not be permitted.  The cause of action should, in my view, have been struck out.

[77]     I accept that important matters of policy are involved here.  For that reason, as with the surviving cause of action, I am happy to grant leave to appeal to the Court of Appeal without the need for any leave hearing.

Result

[78]     On review of Associate Judge Osborne’s decision:

(a)       His decision in relation to the cause of action grounded on s 25 of the

New Zealand Bill of Rights Act 1990 is upheld.

(b)His decision relating to the cause of action grounded on misfeasance of public office is reversed.  That cause of action by the plaintiffs is struck out.

(c)      Should either or both parties wish to appeal this judgment of mine on questions of law, leave will be granted upon presentation of a joint memorandum.

Costs

[79]     To the extent that each party has been successful I am inclined to let costs lie where they fall.  I note that Associate Judge Osborne reserved costs.  If there are any live costs issues counsel are invited to file memoranda.

.......................................…

Priestley J