Currie v Clayton
[2015] NZSC 17
•5 March 2015
| NOTE: THE ORDER OF THE DISTRICT COURT MADE ON 23 NOVEMBER 2007 PERMANENTLY SUPPRESSING THE NAME AND IDENTIFYING DETAILS OF THE WITNESS REFERRED TO IN THIS JUDGMENT AS “L” REMAINS IN FORCE |
| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 132/2014 [2015] NZSC 17 |
| BETWEEN | PHILIPPA CURRIE, RAYMOND DONNELLY & CO, THE CROWN SOLICITOR AT CHRISTCHURCH AND THE ATTORNEY-GENERAL OF NEW ZEALAND |
| AND | VINCENT JAMES CLAYTON AND LINDA JOYCE WESTBURY |
| Court: | Elias CJ, McGrath and Glazebrook JJ |
Counsel: | J C Pike QC for Applicants |
Judgment: | 5 March 2015 |
JUDGMENT OF THE COURT
A The application for leave to appeal is dismissed.
BThe applicants must pay the respondents reasonable disbursements (to be fixed if necessary by the Registrar).
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REASONS
The applicants seek leave to appeal against the decision of the Court of Appeal[1] which reinstated a cause of action for misfeasance in public office against a Crown Prosecutor which Priestley J in the High Court struck out.[2]The alleged misfeasance relates to the Crown Prosecutor’s failure to disclose the full text of a sentencing indication given to a Crown witness, L.
Background
[1]Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195 (Randerson, Wild and White JJ) [Currie (CA)].
[2]Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263 (Priestley J) [Currie (HC)].
The alleged Crown case was that L was a burglar and that he had effectively been stealing to order on behalf of the respondents and a Mr Machirus. L was originally charged alongside the respondents and Mr Machirus but pleaded guilty in April 2005 before trial.
The first trial of the respondents and Mr Machirus was terminated (in October 2006) after one of the defendants became ill. L had been sentenced on the charges, before giving evidence in that first trial. He received a discount as a result of his assistance to the police.
A second trial took place in July 2007. In between the first and second trial, L was charged with a number of unrelated offences. For reasons of safety, L did not want to be sentenced on these additional charges before testifying in the second trial.[3] He did, however, receive a sentencing indication before the second trial.[4]
[3]He wished to remain a remand prisoner.
[4]Police v [L] DC Wellington CRI-2007-32-94, 31 May 2007 (Judge Radford).
There were two arguably conflicting passages in the sentencing indication. One suggested that a discount would be given (when sentencing for the further offending) for the assistance on the earlier matters. The other passage, considered in isolation from the earlier passage, would likely have been taken as indicating that no discount would be given for those matters. It was only the latter passage that was disclosed by Ms Currie, the prosecutor, to the respondents and Mr Machirus.
Mr Machirus became aware some time later of the full text of the sentencing indication. He appealed against his conviction and sentence. That appeal was allowed (on the basis of the non-disclosure).[5] The respondents’ appeals were later allowed by consent.[6] While a re-trial was ordered by the Court of Appeal in Mr Machirus’ and the respondent’s appeals, the Crown elected not to conduct a retrial.
[5]R v Machirus [2008] NZCA 477.
[6]R v Clayton [2008] NZCA 493 and R v Westbury [2009] NZCA 104.
Later the respondents filed civil proceedings against the applicants for deceit, New Zealand Bill of Rights 1990 damages and misfeasance in public office. The claim in deceit was struck out by Associate Judge Osborne[7] and there has been no appeal against that decision. The claim for misfeasance in public office was struck out by Priestley J but Associate Judge Osborne’s decision refusing to strike out the Bill of Rights claim was upheld.[8] On appeal, the claim for misfeasance in public office was reinstated by the Court of Appeal.[9] The decision not to strike out the Bill of Rights claim was upheld.[10]
Decision
[7]Clayton v Currie [2012] NZHC 1475.
[8]Currie (HC), above n 2.
[9]See Currie (CA), above n 1, at [40]–[63].
[10]See at [74]–[92].
The general policy of the Supreme Court Act 2003 is that the Court should not give leave to appeal in an interlocutory application unless it is necessary in the interests of justice for the point at issue to be determined before trial.[11] In this case it would be premature for us to hear the proposed appeal before trial. There is no obvious error in the Court of Appeal’s approach to the strike out application and all the arguments the applicants seek to raise can be raised in the course of the trial. These arguments are much better considered in the context of a full factual matrix.
[11]Supreme Court Act 2003, s 13(4).
The application for leave to appeal is dismissed.
The respondents are entitled to reasonable disbursements (to be fixed if necessary by the Registrar).[12]
[12]The respondents have represented themselves in this Court.
Solicitors:
Crown Law Office, Wellington for the Applicants
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