Deliu v New Zealand Police
[2020] NZHC 2506
•24 September 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2016-404-2150
[2020] NZHC 2506
BETWEEN FRANCISC CATALIN DELIU
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 9-13 December 2019 Appearances:
Mr F C Deliu in Person (via AVL) N Flanagan for the Defendant
Judgment:
24 September 2020
JUDGMENT OF DUFFY J
This judgment was delivered by me on 24 September 2020 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors
Meredith Connell, Auckland
DELIU v NEW ZEALAND POLICE [2020] NZHC 2506 [24 September 2020]
[1] In 2016 the New Zealand Police were investigating a complaint by a member of the public concerning the fraudulent sale of properties that this member of the public had jointly owned with his former wife. Legal documents transferring his ownership in those properties were purportedly executed by him in New Zealand at a time when he was outside New Zealand.1 Where necessary, the documents to effect those transfers were witnessed and certified as correct by a lawyer, Ms S, who was employed by a law firm known as Amicus Law.2
[2] Police officers conducting this investigation wanted to interview Ms S to establish her role in the fraudulent conveyances and to gather any potential evidence for a criminal prosecution. On various occasions they sought to interview her. At this time the plaintiff, Francis Deliu, was a barrister practising in New Zealand and Ms S engaged him to act on her behalf. He advised the Police officers that Ms S was exercising her right to silence under the New Zealand Bill of Rights Act 1990 (NZBORA) and requested them to direct all communications relevant to the investigation to him.
[3] Detective Gillian Holland obtained a search warrant under the Search and Surveillance Act 2012 (SSA) to search the workplace of Ms S for the purpose of seizing specified conveyancing documents and associated material relevant to the transfers of the subject properties. A warrant for that purpose was granted by the District Court,3 and on 31 August 2016 Detective Holland, and other officers under the command of Detective Senior Sergeant Iain Chapman went to Amicus Law to execute the warrant.
[4] Amicus Law was located on level 7 at 175 Queen Street in the Auckland Central Business District (level 7). The principal of this law firm was Richard Zhao. The owner of level 7 was a registered company, City Q 17507 Limited, of which
1 His absence from New Zealand at the material times was confirmed by records held by Immigration New Zealand.
2 See s 33 of the Land Transfer Act 2017 which provides for electronic transfers of land and requires the transferor and transferee to execute the relevant conveyancing documents in front of a lawyer and to provide that lawyer with proof of identity. In this case a copy of the transferor’s passport was provided to Land Information New Zealand as proof of his identity when on the date he was supposed to be in the office of Ms S he and his passport were in a foreign country.
3 The search warrant was issued by the Auckland District Court on 24 August 2016.
Mr Deliu was one of two directors4 and his barrister’s chambers, known as Justitia Law, were also located on level 7.5
[5] On the day of the Police search Mr Deliu and Mr Zhao arrived at level 7 when the search was in progress. By then staff at Amicus Law had already telephoned them to inform them of what was happening. Ms S was not at work that day. Mr Deliu had tried to contact her, but was unsuccessful. When he approached the Police officers he considered he had no instructions to represent Ms S in relation to the execution of the search warrant. For various reasons he was concerned about the Police presence and the search that was taking place.
[6] What subsequently transpired has led to Mr Deliu commencing this proceeding against the defendant, the New Zealand Police.6 Mr Deliu brings three claims: that he was the subject of arbitrary detention contrary to s 22 of the NZBORA; that he was falsely imprisoned contrary to the tort of false imprisonment; and that he was the subject of misfeasance in public office. These allegations are denied by the defendant.
[7] The proceeding raises multiple issues some substantial and some procedural. I propose to deal with the substantial issues first; this is because the response to any procedural defects that may exist will be influenced by the interests of justice, and to know where those interests lie requires me to first have formed a view on the substantial issues.
Facts
[8] Mr Deliu, who represented himself, gave evidence and produced a video recording, which he had made at the time, of his encounter with the Police officers conducting the search. Three of those officers, Detective Senior Sergeant Chapman,
4 The directors were Mr Deliu and Catherine Zhao
5 Justitia Law was the trading name of Justitia Chambers Limited of which Mr Deliu was the sole director.
6 Section 7 of the Policing Act 2008 provides statutory recognition of the New Zealand Police and defines it as an instrument of the Crown. Accordingly, it is within the scope of s 3 of the New Zealand Bill of Rights Act 1990, which applies the Act to the branches of the New Zealand Government. It also falls under s 3(b) as a body in the performance of a public function, power or duty conferred or imposed on that body pursuant to law.
Detective Sergeant Corner and Detective Holland, gave evidence.7 Another Police officer who was present at the search had also video recorded the exchange with Mr Deliu. Three video-recordings were admitted into evidence by consent. It is helpful to assess the evidence in a chronological order starting with the Police attempts to interview Ms S.
Prelude to the search of level 7
[9] Detective Senior Sergeant Chapman explained in evidence that the Police wanted to interview Ms S because they were unsure as to whether she was duped into believing the person whose signatures she witnessed was the true registered joint owner or whether Ms S was complicit in the fraudulent transfer of the subject properties. She was seen as either a witness or a potential suspect. Detective Senior Sergeant Chapman was also unsure about whether others in the law firm were potential suspects. As he put it, it was either “a couple of bad actors” or “lawyers indeed falling victim to an impersonator”. His evidence in this regard is consistent with that of Detective Holland and there was no challenge to it.
[10] It is apparent from the communications between Detective Holland, who was the officer primarily emailing Mr Deliu before the search, that she was frustrated by Ms S exercising her right to silence and requiring Police enquiries to be directed through Mr Deliu. When she had contacted Mr Zhao seeking information his response was that he wanted to seek legal advice, and matters went no further with Mr Zhao. The impression I gained from Detective Holland’s evidence was that she believed she was not receiving the degree of co-operation she would expect from a lawyer who was an innocent participant in a conveyance where someone else had seemingly executed legal documents purporting to be one of the joint owners of properties. Detective Holland would have been aware of the relevant conveyancing documents, including those witnessed by Ms S, which were electronically filed with Land Information New Zealand (LINZ) as the Police wanted to obtain the originals of those documents, which they expected to find in the file/s held by Ms S.8
7 By the trial date two of the Police officers had been promoted to higher ranks and one had retired. I propose to refer to them according to the ranks they held at the time of the search.
8 Generally original documents are preferred for evidential purposes in any criminal prosecution.
[11] The obstacles to interviewing Ms S required the Police officers to consider alternatives for gathering information to advance their investigation. One such alternative was a search warrant. Detective Senior Sergeant Chapman was variously asked why the Police did not use other alternatives, including the production order process, to obtain the documents they sought. My understanding of his explanation is twofold. First, the production order process required a degree of co-operation from the recipient of the order and to date that had not been demonstrated by Ms S, who would have been the natural recipient of any order. Second, the Police were unsure as to whether Ms S and other persons at Amicus Law were complicit in the fraudulent conveyances and their view was that it would not be good practice to serve a production order on a potential offender.
[12] Detective Senior Sergeant Chapman was also questioned about whether any thought was given to contacting Mr Zhao as the principal of Amicus Law before the search and advising him that Police wanted to execute a search so that arrangements could be made in advance for the protection of legally privileged material. Detective Senior Sergeant Chapman said this was considered, but again noted that when the Police wanted to interview Ms S there had been no co-operation and in that regard they had become concerned:
We were left with either we play our hand, and risk losing everything, or a search warrant. That’s really what it came down to.
Detective Senior Sergeant Chapman admitted that the suspicions the Police had about Ms S also left them in a position where they did not know how far up the chain of authority any suspicion should go.
[13] The Police elected the option of a search warrant. This warrant was obtained on 24 August 2016 and was not executed until 31 August 2016, seven days later. Evidence to show the attempts the Police officers made to prepare for the execution of the search warrant is hazy. Nothing is recorded in file notes or job sheets by any of the relevant Police officers. This is of particular relevance as the search, being a search of a law firm, engaged s 143 of the SSA which provides that no search warrant may be executed unless the lawyer or a representative of the lawyer is present. Where
neither of these circumstances can be met the New Zealand Law Society is to be contacted to provide a representative.
[14] There was evidence from Senior Sergeant Corner that during the search on 31 August 2016, but after the incident that has led to these proceedings, she had an interaction with Mr Deliu where he gave her a copy of s 143 of the SSA and told her he would be going to the High Court to seek an injunction to stop the search. This caused Detective Corner to contact the New Zealand Law Society (NZLS) to see if it could appoint a representative,9 but the NZLS would not get involved.
[15] Detective Holland gave evidence from memory, to this effect. She said that she had telephoned the NZLS a “couple of days before” the search requesting someone from the NZLS accompany Police, but that the NZLS had refused to become involved. She could not give a name for the person she had spoken to but from memory she recalled it was someone relatively senior. There is no evidence of Detective Holland referring the NZLS’s refusal to assist to her superior officers in the investigation team or elsewhere such as the Police in-house legal counsel. Seemingly other than this telephone conversation, nothing was done by her to ensure the NZLS would participate in the role provided for it by s 143.
[16] Because nothing was documented Detective Senior Sergeant Chapman said in evidence that he could not be sure as to whether the NZLS had indeed been approached before the search warrant was executed.
[17] It was also the first search of legal offices that Detective Senior Sergeant Chapman had undertaken under the SSA, and he was aware he was facing a complicated situation that was different from the usual search of a law office:10
Q.So in a sense you were seeing this as a different scenario from, say, the scenario where a lawyer’s client is a person of interest and you want to look at the law firm to look at the files, but you don’t have any suspicions about the law firm. Here, in a sense, your suspicions were one, about an employee, a solicitor employee of the law firm.
9 Under s 143 of the SSA the New Zealand Law Society has a specific statutory role to play in terms of appointing a representative to be present at a Police search of legal offices to ensure legal privilege is protected.
10 This understanding is also recorded in a written statement Detective Senior Sergeant Chapman made on 2 September 2016.
You didn’t know how far up the chain of authority any suspicion should go –
A. That is absolutely correct.
QRight, so really, you really, to be safe, you needed someone from the New Zealand Law Society or someone appointed by the New Zealand Law Society to be there. In a sense, you would then have had a safe person in terms of section 143, and a neutral person in terms of section 143.
A.Yes, and I absolutely acknowledge that point, and in hindsight, given the interaction that we had on that day, we would have, given the gift of hindsight. I haven't got it documented, so I'm a little bit cautious to say that I was already aware that the Law Society were very hesitant to assist us with a search of those chambers, and in fact that was proven later on that day when we specifically asked them and they said no. So we really were in a hard place, and there was no easy option, so it was a case of let’s pursue it eyes wide open. The moment it became – my view in my briefing to my team was the moment this became complicated with regards to a specific privilege argument, that we would stop, pause and back out, and I think you'll hopefully see throughout that day, Ma'am, and Mr Deliu, that we stopped and paused a number of times, and ultimately said stop entirely, remove ourselves, this needs to be tested at a higher level.
Finding
[18] In short, the available Police evidence suggests there was poor planning and preparation for what was acknowledged to be a unique and difficult search. Detective Holland was the person directly responsible for obtaining the search warrant and so it can be expected it would fall to her to contact the NZLS regarding a representative. I have no reason to doubt her evidence that she approached the NZLS before the search. However, the lack of any contemporary record in this regard or note of the NZLS’s refusal to participate suggests to me that Detective Holland did not give this matter the attention it required, which also suggests that she perhaps failed to realise how important it was for a neutral legal representative to be present during the search to attend to any potential privilege claims.
[19] The lack of attention given to this aspect of the search (which is evident from the lack of contemporary records on the topic) also reflects poorly on the senior personnel involved. They should have realised there would be problems attempting to search a legal office where certain lawyers had already exercised their legal rights not to engage with the Police.
[20] Detective Senior Sergeant Chapman said in evidence he had planned to arrive unannounced and he expected Ms S would be at Amicus Law. Had she been present she could have assumed the representative’s role in s 143 when it came to legal privilege relevant to client files. The chosen approach of Detective Senior Sergeant Chapman arriving at Amicus Law at 9 am suggests he thought the element of surprise might work in the Police’s favour:
It was our intention that either Zhao or [Ms S] would be present.
[21] However, even if Ms S had been present, once she was given her NZBORA rights, as per his usual practice,11 had she then exercised those rights and refused to co-operate, the Police would have then been faced with either searching the office without a lawyer as representative of the clients of Amicus Law to protect their legal privilege or suspending the search. Further, given the stance she had taken up to that time, that all Police enquires were to be directed to Mr Deliu, her continuing this stance on the day of the search would have precluded her from being a representative for the purpose of s 143. This was a legitimate stance for her to take. The Police should have recognised it might be maintained and planned for that possibility.
[22] Whilst other lawyers were present on level 7 on the day of the search, once they were given their NZBORA rights it would have been open to them to exercise those rights, and therefore remain silent. Even if they were not given their NZBORA rights they could simply have refused to co-operate on the basis they had no instructions to represent those in whom the privilege claims vested.
[23] At the very least the Police needed a back-up plan. The NZLS was the best source of a representative to participate in a s 143 search and some advance preparation was required to ensure the NZLS would participate in this way. The statutory purpose in s 143 of calling on the assistance of the NZLS is for those occasions when, for whatever reasons, the lawyers directly involved are either reluctant or refuse to assist in a search that may encounter legally privileged material. Had the situation been clearly explained to the NZLS by written request addressed to
11 Detective Senior Sergeant Chapman said it was his practice to give everyone present at a search scene their rights and in this case he did so for Mr Wu and Mr Deliu. The evidence is silent on whether he did so for Mr Zhao or Mr Zhang.
senior personnel it is difficult to see how the NZLS could have refused to perform a role that Parliament has chosen to give it.
[24] My observations on the attitude of the NZLS and its lack of involvement in the search are based solely on the evidence provided by the Police officers. No evidence was called from the NZLS, and so its explanation for not being involved in the 31 August 2016 search is not available to me.
[25] In sum, there was no arrangement for the NZLS to provide a representative to be present for the search. There was also no coherent plan as to who would fulfil the role of representative, with the Police seemingly of the view that either Ms S or another member of Amicus law would be available to do so.
The search
[26] On the day the search was executed the Police officers arrived at Amicus Law at around 9am. The search proceeded in stops and starts and can be divided into four parts. Of the team involved Detective Senior Sergeant Chapman, Detective Senior Sergeant Corner and Detective Holland gave evidence.
Part one
[27] When the Police officers arrived no-one who was relevant to the search was present. They spoke with the office manager and receptionist, who telephoned Ms S and Mr Zhao without success. They were advised that Orson Wu, who was a legal executive working with Ms S, would be arriving in about 30 minute’s time. The Police officers left and waited in a coffee shop.
Part two
[28] The Police officers returned to level 7 at about 9.48 am and found Mr Wu there. All concerned moved from the reception area into an adjacent conference room.
[29] Detective Holland introduced and identified herself to Mr Wu, read him his NZBORA rights and gave him a copy of the search warrant. Enquiries were made of Mr Wu by Detective Senior Sergeant Chapman who learned that Mr Wu was a legal
executive who worked with Ms S, and he was someone who was able to locate the conveyancing file with the documents that were specified in the search warrant. Detective Senior Sergeant Chapman concluded that Mr Wu was an appropriate person to fulfil the role of a representative for the purposes of s 143 of the SSA.12
Q. … You thought it was fine that you would be the one to decide who was the representative?
A. Yes.
Detective Senior Sergeant Chapman explained to Mr Wu that as the representative of Ms S, he had the right to exercise privilege claims on any items seized. The execution of the search warrant commenced.
[30] It is appropriate here, before proceeding further, to identify the terms of the search warrant. The search warrant authorised the search of “a place situated at Level 7, 175 Queen Street, Auckland Central”. The exact parameters of this “place” were not identified, which in principle would have allowed for areas of level 7 beyond Amicus Law to be searched. The warrant identified certain specified evidential material relevant to the offence of using a forged document13 and authorised its search and seizure. This material was:
(a)client file in the name of [HSS] and [YS] for the sale of the property at [Victoria Street, Auckland];
(b)original of the private individual client authority (PICA) and instruction for an electronic transaction for the property at [Victoria Street Auckland] dated 3 March 2016 and attached copy of identification documents used;14
12 See [96] – [112] herein for explanation of the requirements of s 143 and its application to the circumstances of this search.
13 Crimes Act 1961, s 257(1)(b).
14 Part of this process involves the authorising lawyer being provided with proof of the identity of the transferor/transferee in the form of a passport or similar document that can visually identify a person.
(c)original of the PICA and instructions for an electronic transaction for the property at [Eden Crescent, Auckland] dated 27 April 2016 and attached copy of identification documents used;
(d)trust ledger accounts to which the proceeds of the sales of the properties at [Victoria Street, Auckland] and [Eden Crescent, Auckland] were credited;
(e)documentation supporting the entries on those trust ledger accounts including and not limited to trust account receipts, settlement statements, paid cheques and client authorities for disbursements and bank statements in relation to properties at [Victoria Street, Auckland] and [Eden Crescent, Auckland];
(f)client file in relation to the transfer of title of [Eden Crescent, Auckland] from [YS] and [HSS] on 11 April 2016 to [YS];
(g)client file in the name of [HSS] and [YS] for the sale of the property at [Eden Crescent, Auckland]; and
(h)documentation in relation to the discharge of the mortgage as advised by [ELJK] to LINZ on 11 April 2016 including any trust account records relating to receipt of funds and their disbursement.
[31] The warrant enabled authorised Police officers to enter and search the specified place for the specified evidential material and to seize any of the specified evidential material or anything else found in the course of carrying out the search or as a result of observations at the specified place if they had reasonable grounds to believe they could have seized the item or items under any search warrant that they could have obtained or any other search power that they could have exercised.
[32] The usual powers that attach to search warrants were included and in particular they were authorised to: use any assistance that is reasonable in the circumstances; use force in respect of any property that is reasonable in the circumstances; enter or break
open or access any area within the specified place for the purposes of carrying out the search and any lawful seizure; detain any person at the place for the purposes of determining whether there is any connection between that person and the object of the search if that person is at the place at the commencement of the search or arrives at the place while the search is being carried out; and search any person who was found at the place or who arrived at the place if there were reasonable grounds to believe that the specified evidential material was on that person.
[33] Mr Wu took the Police officers to Ms S’s workstation, which Detective Holland later in her brief of evidence said was “located directly outside Mr Deliu’s office”. Detective Holland said they quickly realised that without Mr Wu’s help they faced a difficult task identifying the documents specified in the search warrant. Then they moved to another office, which was glass fronted with the words Justitia engraved on the glass front. This was an open plan office with desks in it. In her written statement, prepared shortly after the search, Detective Holland recorded that the paper work and files located in this office did not appear to be in order, were either loose leaf or in folders around the desk and shelving. Mr Wu went through the files in this room and on the desk of a lawyer, a Mr Koo. Several relevant documents were located by Mr Wu, which he handed to Detective Holland. Detective Senior Sergeant Chapman was satisfied that because Mr Wu had an opportunity to look at those conveyancing documents as he was locating them this meant he had sufficient opportunity to consider if any of the documents were legally privileged or not:
Q. And did you give any thought to whether, before you took documents and put them in envelopes, you should first of all let a lawyer or a representative of Ms [S] look at those documents?
A. Yes, and Mr Wu did, Orison Wu did. He looked at them all. We confirmed that they were the conveyancing documents, and in my mind, we had satisfied the representation aspect of 143 by having Mr Wu as Ms [S’s] legal exec, providing those to us. So yes, I think we had fulfilled that, Ma'am.
[34] The search was interrupted when a barrister working from Justitia Chambers (Daniel Zhang) approached and demanded to know what was happening. He spoke with Mr Wu and looked at the warrant. He left and later returned with a telephone advising Detective Senior Sergeant Chapman that Mr Zhao was on the line. The two
spoke and then Detective Senior Sergeant Chapman suspended the search until Mr Zhao arrived.
Part three
[35] The Police officers returned to the conference room to wait for Mr Zhao to arrive. The documents that Mr Wu had already handed to them were placed in envelopes and then in a brown cardboard box (the exhibits box). After about 30 minutes had passed Mr Zhao and Mr Deliu arrived at the same time.
[36] Before addressing what occurred when Mr Deliu arrived, it is helpful first to describe the layout of level 7, which the Police officers were viewing for the first time.
[37] There appeared to have been a common reception area and shared conference rooms. Despite Ms S being employed by Amicus Law the material Mr Wu obtained for the Police officers was located in an open plan office associated with Justitia Chambers, the glass walls of which were engraved with the words Justitia.15 There is evidence from Detective Holland that Mr Deliu’s office was immediately beside that of Ms S.
[38] Detective Senior Sergeant Chapman had the impression that there was cross- over between Amicus Law and Justitia Chambers. This led him to conclude there were two interconnected law firms operating on level 7. Detective Holland said in evidence:
… there was a lot of movement between, there was Amicus Law lawyers working in offices that had Justitia Chambers on them, so it was all muddled up so you couldn’t distinguish between what firm was what, because it all looked like they were working together.
[39] The way Amicus Law and Justitia Chambers occupied level 7 would also have increased the concern of the lawyers working there when it came to the Police attempting to locate specific material in the search warrant. If there was no clear delineation between offices used by employees of Amicus Law and those used by staff and barristers working in Justitia Chambers there would have been a greater risk of
15 This may have been because by then the conveyancing exercise for the subsequent properties was completed and Ms S had briefed Mr Deliu to act for her in the matter of the Police investigation into the transfer of those properties.
the Police officers inadvertently coming into contact with legally privileged material of clients of Justitia Chambers as well as Amicus Law. The close proximity of Mr Deliu’s office to that of Ms S would have compounded this concern. Moreover, Mr Deliu gave evidence that he was often briefed by either Ms S or Mr Zhao, which meant that persons he viewed as his clients were also clients of Amicus Law. In addition, because Ms S had briefed Mr Deliu for the purpose of the Police investigation, material relevant to the conveyancing transactions may have found its way on to files held by Mr Deliu.
[40] Accordingly, while the layout on level 7 led to the Police officers viewing all on the floor with some suspicion, the layout would also have compounded the typical concerns lawyers have about protection of legally privileged material.
[41] Mr Deliu said he first learned of the Police presence at level 7 when telephoned at around 10.30am by Mr Zhao. Mr Deliu arrived at the scene around 11am at the same time as Mr Zhao. At this time Mr Deliu had made no contact with Ms S and considered he had no instructions from her relevant to the search warrant.
[42] Mr Deliu said that when he arrived the search was in full motion in a number of offices in various areas of level 7. No representative of the NZLS was present.
[43] Mr Deliu saw Police officers in a conference room next to the reception areas with a brown box on a desk, which he believed contained seized material. He wanted to know if the material in the box related to his legal practice, to himself personally or any other matters. He entered the conference room and advised those present that he was the owner of level 7 and counsel acting, although he did not say for whom. He then asked Detective Holland what had been seized thus far. At that point Detective Senior Sergeant Chapman intervened.
[44] Mr Deliu said he did not want to engage with Detective Senior Sergeant Chapman and this was made clear from the start. For this reason Mr Deliu addressed his enquires to Detective Holland and essentially ignored Detective Senior Sergeant Chapman.
[45] From the perspective of Detective Senior Sergeant Chapman he did not want Mr Deliu intruding on the search and attempting to take control of the situation. In particular Detective Senior Sergeant Chapman was concerned about Mr Deliu touching the seized items in the exhibits box and he would not tolerate that. He was prepared to explain what was happening to Mr Deliu, but the lack of co-operation being shown in response prevented both of them engaging in a civil manner. What occurred next was video-recorded by both Mr Deliu and a Police officer. The first part of the exchange between Mr Deliu and the Police officers was as follows:
A.I’m Frank Deliu, I’m the owner of this floor and counsel acting so I’m going to record this okay.
Q. Nice.
A. Thanks.
Q. I’m Iain Chapman.
A. Good to meet you Iain.
Q. Peter (inaudible 10:56:59).
A. Hello Peter.
Q. Gill Holland.
A. Hi Gill, good to meet you. So is that stuff taken from this office.
Q. Well shall we have a chat and I’ll explain everything to you.
A.I understand the basics, can you just answer my question, is that stuff taken from this office or not.
Q. These three envelopes so far.
A.Okay, can I just record them please, excuse me, I’m not pushing you’re in my way.
Q. (inaudible 10:57:18).
A.Okay then move or just get out of the way, and what’s in there, what’s in there please?
Q. Sorry, I spoke to, was it you I spoke to?
A.I’m the owner of this floor and I’m his lawyer, what’s in the envelopes please.
Q. Can you detail (inaudible 10:57:34).
A. Thank you.
Q. Before we go any further –
A. Okay, I’ll just ask my questions, I (inaudible 10:57:40).
Q. My name is Detective Sergeant –
A. I don’t care, you’ve told me your name, I don’t need to hear from you, I’m not asking you questions.
Q. My name is Detective Senior (inaudible 10:57:43).
A. Can you not talk, you’re on my floor, I’m not asking you to talk.
Q. Frank, I’m warning you for obstruction.
A. Obstructing what?
Q. Police constable in the execution of his duty.
A. And how am I obstructing you, I don’t want you to talk to me.
Q. My name is Detective Senior Sergeant Iain Chapman of the Auckland Police –
A. Okay, so I don’t need your speech.
Q. I’m executing a search warrant –
A. Good thank you –
Q. Under section 6 of the Search and Surveillance Act –
A. We’ve got them out right here, thank you very much.
Q. You have the right to refrain from making a statement –
A. We’re not making a statement, we’re asking you questions of what you’ve taken, can you please answer the question of what you’ve taken. Am I a suspect, why are you even giving me my rights?
Q.We have a list of lawyers that you can speak, because we’re executing a search warrant.
A. We’re not making a statement, we’re asking you questions of what you’ve taken, can you please answer the question of what you’ve taken. Am I a suspect, why are you even giving me my rights.
Q.We have a list of lawyers that you can speak, because we’re executing a search warrant.
A. Am I a suspect, why are you giving me my rights?
Q. You were detained pursuant to –
A. I’m detained.
Q. Pursuant to this search warrant.
A. I’m detained?
Q. Yes.
A. Okay, okay.
Q. You’ve (inaudible 10:58:20) yourself in here, I have spoken to Richard –
A. Okay, okay if I’m detained we’re gonna get to that later, now what –
[46] The Police officer video-recorded this further exchange in the conference room:
Q. (inaudible 10:58:51) I have spoken to Richard –
A.Okay, okay fine, we’re gonna get to that later, now what’s in the envelope please?
Q. You have the right to refrain from making a statement.
A. Nobody’s making a statement, what’s in the envelope?
Q.You have the right to speak to a lawyer in private and without delay and we have a list of lawyers that you can speak to for free. Do you understand your rights?
A. Yes, thank you very much now what’s in the envelope?
Q. (inaudible 10:59:14).
A. And where they taken from what office?
Q. The office in the (inaudible 10:59:25).
A.The office in the – just to be clear I’m just going to record this. Are you talking about the first door there on the left, is that correct?
Q. Yes, the glass door.
A. The glass door right here that’s visible to us?
Q. The one that’s just been opened.
A.Okay, I just wanted to confirm that, next please. (inaudible 10:59:41) my permission to do that by the way.
Q. Same place.
A. Same place, another (inaudible 10:59:52) is that right.
Q. (inaudible 10:59:56).
A. Yep, great, thank you.
Q. Exhibit 3, (inaudible 11:00:06) in relation to the sale (inaudible 10:59:55) property 3 (inaudible 10:59:58) [Eden Crescent property].
A. Great, thank you.
Q. And exhibit 3 (inaudible 11:00:06).
A. And same place, is that right?
Q. Same place.
A. Is that everything?
Q. That’s everything.
A. Okay, and are you done with your search?
Q. No.
A. You’re not done, what’s left?
Q.We've got the warrant, we’ll see – we want the full files in relation to this sale and purchase (inaudible 11:00:25) property. There’s also some documents in relation to the trust account, and the settlement statements.
A. Okay. Well we need time to consider the warrant obviously before we can give you (inaudible 11:00:42) on that.
Q.Frank, that’s not how it works. We’re here with the search warrant, we will be obtaining this, ideally with your co-operation as we discussed on the phone.
A. Okay, (inaudible 11:00:50).
Q. And if not, then we will just search.
A.Okay, and that’s what I mean, so as to the question of co-operation, we’ll have to consider that.
Q. Well how long are you talking about?
A. I don't know, as long as it takes.
Q. Well that’s again –
A. Are you laughing, is there something funny here, Sir?
Q. Frank –
A. Is there something funny here, Sir? Is this a funny situation?
Q. Frank –
A. Thank you.
Q. As I said to you before, we’re here executing a search warrant.
A.Okay, I thought it was something comical that was happening here. I was confused.
Q.Frank. I can't understand you. You have actually hurt my foot, which I am having treatment on.
A. Okay.
Q. You were very rude –
A. Is that what’s funny? Is that what’s funny?
Q. Frank – no it’s not –
A. Thank you, okay, yes, please.
Q. We will be searching this office.
A. I understand, co-operation is the one we’re talking about right now, please let’s not talk about what you’re gonna do, you said that you'd like my co-operation, is that right or wrong?
Q. Ideally.
A. Ideally.
Q. But we don’t need it.
A. And nobody’s debating that, Sir. So the question is, do we wish to co-operate, correct?
Q. Yes.
A. Okay, we'll come back to you with that.
Q. How long?
A. Carry on with your search.
Q. How long?
A. As long as it takes, I told you that.
Q. Okay, we'll carry on with the search.
[47] The above exchanges, in particular the use of the words “detained pursuant to this search warrant” and the reading of NZBORA rights, led Mr Deliu to believe he
was being treated as a suspect and detained pursuant to the search warrant, which meant he was therefore unable to leave level 7. He said it never crossed his mind that Detective Senior Sergeant Chapman was not being serious and therefore he was of the view that the best approach would be to accept the situation for the moment, least he be charged with resisting arrest or the like and later seek legal recourse.
[48] Part way through the recorded exchange between Detective Senior Sergeant Chapman and Mr Deliu, Detective Holland showed Mr Deliu the items that had already been seized and which were in the exhibits box, being what the Police then termed items 1, 2 and 3. After Mr Deliu was shown these items he asked if that was all and it was explained to him several items were still outstanding and it was outlined what they were. Mr Deliu also asked the Police officers where they had taken the documents from and more than once he went over which specific office they were taken from. He would have realised from this exchange that the Police Officers had obtained material that was located in Justitia Chambers.
[49] Mr Deliu then left the conference room telling Detective Senior Sergeant Chapman that he would take the warrant into consideration and get back to him. Detective Senior Sergeant Chapman asked for his co-operation in finding the remaining items but Mr Deliu said he needed time to consider. When asked how long that would be, Mr Deliu replied: as long as it takes, and when told his co-operation was not required he replied: fine, continue with your search then. He then walked towards his office. Detective Senior Sergeant Chapman said he regarded Mr Deliu’s words “continue with your search” as him granting consent for the search to continue. Mr Deliu then went to his office where he remained.
[50] Mr Deliu denied interfering with any search, he said there was no search taking place in the conference room. There was simply a box of material on the desk and he had asked what was in the box. By this time he had a copy of the search warrant.16 His queries had been addressed to Detective Holland and he did not want to engage with Detective Senior Sergeant Chapman much less have his NZBORA rights read to him.
16 Mr Deliu thought Mr Zhao or someone else connected with the law firm had given him a copy of the warrant when he first arrived at level 7.
[51] Detective Senior Sergeant Chapman said he was prepared to have a discussion with Mr Deliu when he first entered the conference room, but this was quickly overridden by Mr Deliu making it clear he was not willing to hear anything Detective Senior Sergeant Chapman had to say:
… had you come into the office, sat down and you and I had a conversation, that none of this would have occurred. From my perspective, everything that occurred, with respect to the detention, to the warning to obstruction, was a direct result of your action as you came into that office, and the manner at which you approached that circumstance. …
[52]As Detective Senior Sergeant Chapman saw matters:
I quite literally couldn’t explain one point of why I was there.
He also went on to say:
… had I been put into that same situation now, I would have just arrested you.
[53]When queried whether the arrest was for obstruction he said, yes:
… My view is that you were trying to go straight to that exhibit box and get in the way of the police investigation.
[54] From Mr Deliu’s perspective he was simply asking what had been taken. However, from Detective Senior Sergeant Chapman’s perspective, he was trying to introduce himself as the officer in charge of the action and Mr Deliu was not willing to listen to that. As Detective Senior Sergeant Chapman saw it:
A. You [Mr Deliu] were trying to control a situation that is very clearly under the control of police. You were injecting yourself into the middle of a police inquiry, you were not listening to anything that I had to say, you weren’t allowing my staff to go about their business, you wanted immediate answers to questions which, in my view at that stage, you weren’t entitled to. The equivalent would be a disorder event on the street, where I am arresting someone who is intoxicated and one of their intoxicated friends comes up and gets in the way. And the absolute appropriate action at that stage for us to control that situation, is to arrest the person who is obstructing a constable in the execution of their duty.
Q. All right, but the search – there was no actual search going on in the conference room because there were no papers in the conference room correct?
A. So we had paused the search at that stage and we were waiting for Mr Zhao to arrive, as per the phone call with Mr Zhang. So we had taken
steps to remove ourselves from the search area, awaiting Mr Zhao to arrive and I was hoping to have that sort of civil conversation with Mr Zhao to explain the circumstance but that didn’t happen.
[55] Detective Senior Sergeant Chapman identified two ways in which Mr Deliu was obstructing the search. One, was by refusing to have a civil conversation and the other, was by injecting himself into the room without giving Detective Senior Sergeant Chapman an opportunity to offer any explanation. When it was put to him that the crux of it was Mr Deliu did not want to talk to him, the answer was:
A. No, the main reason I warned you for obstruction, the absolute in my view, you were walking into that office and began walking around the table to get to that exhibit box. In my mind, how that was going to play out, had we not stopped you verbally, you would have walked up, grabbed the exhibits and started going through them, and that was the line at which you would have been arrested for obstruction.
A. … so I was warning you ahead of what I thought you were about to do. Everything else around your conversation, your lack of willing to engage, is the context, but it was your physical actions of heading around to that box of exhibits, in my mind I was playing out that you were going to go in and try and tamper with what we were dealing with, and that was the point at which you would have been arrested for obstruction.
Q. Just to be clear here, so you were warning me for an offence that hadn’t yet taken place?
A. Yes.
[56] At some point in the exchange Detective Senior Sergeant Chapman considered he had gained sufficient control of the situation:
A. I thought in my mind we had better control of it. By that stage I had – the mood, well, the mood of the room, did it change? No, it didn’t change, but I certainly felt like you had at that point listened to me and realised in my mind that – generally if I issue a warning to some that they’re about to be arrested for an offence, historically they either continue to do it and get arrested or reflect on what action they were taking that was about to get them arrested and they back off. And I, in my mind, I got to that point where you had changed your direction from that box, or at least trying to pick up things, and actually get in the way, to just filming, and I was prepared to accept that just filming. The last thing I wanted to do was arrest you, because I knew that that would – it was going to go down a path that I certainly in no way intended that day to go down. I wanted to have a civil conversation with Mr Zhao, with yourself as you came into the room. The absolute last thing I wanted to do was arrest you. That’s a, in my mind is, is, you know, it’s a big thing to do regardless of the situation let alone the fact that we found ourselves in a law firm talking to the owner of that law firm. That’s the last thing I wanted to do, but I did
want to make you very clear that you weren’t in control of that particular situation.
Q. Okay, but just to be clear, I didn’t actually do anything to try and take the box out of that office, correct?
A. No, you didn’t.
Q. And I didn’t do anything to try and take the evidential, the envelopes, out of that room either, did I?
A. No, you didn’t.
Q. So you’re saying that you sincerely believed that I was going to just take that box and, what, run away with it?
A. I think – well, no, not run away. You don’t strike me as the sort of person who would run away from anything, with respect. I suspect you would have gone in there, had a look at them, opened them up, demanded that we didn’t touch them any – I suspected you wanted to control the situation to the best of your ability. That’s what I thought would happen. I didn’t think you would grab the box and run out the door, that’s not it, but I certainly in my mind thought that you were trying to control a situation which I wasn’t prepared to accept.
[57] Detective Senior Sergeant Chapman made it clear that the protecting of the box of exhibits was what was uppermost in his mind:
A.I think I pretty – in my mind I had made it pretty clear from that issue of the warning that if you – there was a line, and that the overt action to uplift any of those exhibits or control our movements around them, if you crossed that line, you were more than likely going to be arrested. I’m pretty sure I got that message across, despite the manner in which our conversation was going, I’m pretty sure I got that message across to you.
Q.Just so I’m clear, what do you mean, “Controlling the movements,” I’m just not quite sure what that means?
A. Around those exhibits, those exhibits were the key things that I was trying to protect, the safety and security of those exhibits that were in our custody. If you or anyone else in the firm had taken any sort of action to try and either remove those or touch them or any sort of – in any way deal with them after they were in our care, that would have been the line that would have been crossed with obstruction and that’s what I was issuing the warning for.
[58] Detective Senior Sergeant Chapman considered that the direction he gave to Mr Deliu that he was detained pursuant to the warrant was one way of exerting control over the situation facing Police. It was a lesser form of control than arresting Mr Deliu
for obstruction and in Detective Senior Sergeant Chapman’s view it achieved the desired result as it caused Mr Deliu to desist from the intrusive conduct:
Q. Detective superintendent the transcript I’ve got of the video which is in Mr Deliu’s brief of evidence records you giving him a warning that he was obstructing a constable in the execution of his duties, and then there’s some exchange, and you say that you’re executing a search warrant. You then give him a caution, and you then proceed to tell him that he is detained pursuant to the search warrant. So at what point did you think he had, to put it colloquially, backed off to the point where you didn’t need to engage with him anymore, was it at the time when you warned him of potential arrest for obstruction, or was it at the time after you'd given him his Bill of Rights, or was it at the time after you'd given a warning, given the Bill of Rights, and also said he was detained under the search warrant? So I've got three scenarios, and I'm just –
A. Absolutely.
Q. – trying to work out which one it was in your mind that you'd considered he’d backed off?
A. Of course, Ma'am. So in my mind, how it played out was we were awaiting, we were sitting in a conference room with a box of exhibits on the table, awaiting the arrival of Mr Zhao. At that stage I didn't know that Mr Deliu was coming. I looked up and I saw Mr Deliu and I use the term, “Storm into the room,” because it was in that – and immediately start talking, “I own this place, what are you doing, what have you taken,” or words to that effect. In my mind, and this was within a couple of seconds, I saw him begin moving around the table to those exhibits. That’s when the warning was issued, “You need to stop, just everyone calm down, you need to stop and listen to me so we can explain this and have a proper conversation.” So that’s when the warning for obstruction happened. That seemed to pause the situation momentarily, and I felt in my mind that we had regained a certain amount of control, despite the conversation that was happening, Ma'am. I then went back into the procedural approach of who I am, why we’re here, and that we’re executing a search warrant, and then as a result of that I would then give him his rights as the occupier of the property, because he had clearly identified himself as the occupier. The words were, “I own this floor,” or words to that effect. So I gave him his rights as the occupier that we were executing the search warrant on. Because he had injected himself into the scene from an outside angle, I didn’t know what his intentions were, Ma'am, but it was clear he wanted to control everything that was happening, in that very short window of interaction with him. So at that stage I said, “No, you know what,” in my mind I'm sitting there going, if we need to, if we can get through this without it all becoming far more than what it is, that I would at that stage tell him, “Look, for the period while we can sort everything out and everyone is fully informed you are detained for the purpose of the warrant so that we can establish your role. Are you the occupier, are you counsel acting, do you want to claim privilege.” None of that was established at that stage. So it was a very dynamic situation in a very short space of time. So that, in my mind it was dual purpose,
(a) he needs a warning for him coming into this office and trying to control a police action, and (b) I needed to, if he decided to just walk out
the door again and try and take control of all his people, which I understand he did at some stage tell people not to talk to us, that’s the point at which I say, “No, actually, you know what, you’re detained.” Ma'am, in hindsight, and I have reflected on this over the years, I probably would have and should have just arrested him. He would have then been in our control, the obstruction in my mind had almost certainly been fulfilled, and to take pure control of it. However I knew that that was, I was trying to complete a job with the minimum amount of, what’s the word – disruption across the entire, the entire bandwidth of what we were dealing with.
Q. Well, did you then see, telling him that he was detained pursuant to the search warrant as one way of exerting control over him but a lesser form of control than if you'd taken the other step of arresting him for obstruction?
A. Yes, Ma'am. Absolutely.
Q. So it was a lower form of control you were seeking to exercise over him?
A. Yes, Ma’am, yeah.
…
Q. Okay, so if you say that you detained me pursuant to the search warrant, what I’m asking you is – I’ll put it as a proposition. My proposition to you is the only lawful way in which you could have detained me pursuant to the search warrant was solely for the purposes of determining whether there’s a connection between me and the object of the search. Do you agree with that proposition at least on the terms of the warrant?
A. Yes.
[59] Detective Senior Sergeant Chapman explained the detention in this way, in his view it lasted no more than a matter of seconds:17
Q. Okay, did anybody else conducting the search do that?
A. No, well, that would have been in the form of interviews which didn’t really occur given the manner in which we found ourselves there. The detention period, in my view, and I believe objectively, lasted a matter of seconds. The moment that you turned around and walked out, in my mind you had removed yourself and we were just going to get on with our business. So the period of detention in my mind was, if you’d chosen to stay in that room and continue to try and do what you were doing, I was either going to, well I was going to try in that conversation with you to determine your connection to the paperwork. “Mr Deliu, do you know about this conveyancing file, do you know, did you give instructions to [Ms S], what’s your involvement in this conveyancing file?” These are the sorts of questions I would have asked you or at least one of my investigators would have asked you. That clearly didn’t happen. The
17 See discussion on the legal basis for this form of detention at [181] – [190] herein.
alternative was to arrest you and then we would have transported you back to the Auckland Central Police Station and then maybe at some stage invited you for an interview. As it happened, you turned around and just walked from the room. So in my view, in my mind, you had removed yourself, the situation was back under control, there was very little that you could have done obstruct us or further get in our way from your office and it was quite an eloquent solution to what was potentially a very, very tricky circumstance that we found ourselves in.
Q. So on your evidence then it was basically me who decided when the detention ended?
A. Yes.
Q. By leaving?
A. That’s a fair comment.
…
A. Whether I was referencing specifically in my mind at the time 118 of the Search and Surveillance Act, I can’t be clear. What I did know is given the circumstance that was facing before me, the appropriate action, and I’m playing out in my head very, very quickly, what am I able to do here? And that’s the action that I took. So, no, I wouldn't have said immediately in my mind, okay, 118(1) and then processed that. It would be more a case of I have a person who’s trying to interject himself into a criminal inquiry, into a search warrant, not appropriate, he’s certainly trying to control what we’re doing and he’s making moves for that box. What powers do I have? And as I said, in hindsight it probably would have just been the simplest approach to have arrested you, but that’s what was going on in my mind at the time.
Q. And I’d asked you on at least a number of occasions whether I was detained and you confirmed it and said I was, correct?
A. I told you, told you you were.
Q. And then I asked for confirmation of it and you confirmed it?
A. Yes, yes.
Q. So do I take your evidence today that you do accept that I was detained but you’re just saying that it was for an extremely brief period of time?
A. Yes.
Q. I think you said seconds?
A. I would have to refer to the video.
Q. Sure.
A. It was not a very long period of time.
THE COURT:
Q. When you record in the statement the words, this is further up the page when you’re talking about providing Mr Deliu with his rights, you say, “It was likely he would be technically detained for the purpose of the warrant.” What do you mean by – I realise later you moved to telling him he was detained but I’m just trying to understand what you mean by this idea of someone being technically detained for the purpose of the warrant?
A. Yes, Ma’am, I appreciate it’s, it’s akin to being nearly pregnant, I understand, it’s – look, the, it simply is, a pure detention would be your physical movements are restricted, ie, handcuffs in the back of a police car or a police cell. Me saying, “Mr Deliu, you’re not going anywhere near that box, you’re detained for the period while we sort this out,” is more – the word “technical” is not in my affidavit, it’s in my initial statement. On reflection, it was more the ability to control his movements within that small boardroom that we found ourselves in. The moment he stepped out, as long as he didn’t go running into the room where we had found the conveyancing file, and made an approach to those papers, as long as he didn’t do that, as far as I was concerned, he removed himself to his office, he shut the door, the detention for the very small period that it was there, I appreciate the term, “technical detention,” is not one you'll find in law, but in my mind it was very much a, for a very small moment in time I was controlling his movements within that boardroom.
Part four
[60] Detective Holland notes in her written statement that after the interaction with Mr Deliu she was then directed to continue the search and she went to Ms S’s workstation, which was immediately outside Mr Deliu’s office.
[61] Throughout this time the records Detective Holland made contain no reference to Mr Wu being present. The impression to be gained from Detective Holland’s evidence is that for this part of the search it was Detective Holland who was searching for and finding the documents she itemised in her written statement. She says nothing about Mr Wu or any other person associated with Amicus Law helping her to locate the material or being given the opportunity to consider if a privilege claim should be made in relation to it.
[62]Detective Holland records her actions and other events at this time as follows:
(a)At 11.21 am she found some papers in relation to the Victoria Street, Auckland property on the desk and sealed them in an envelope.
(b)At 11.25 am she found a settlement statement and other miscellaneous documents relating to the Eden Crescent property and placed them in an envelope.
(c)At 11.27 am she found a settlement statement relating to the Victoria Street property and placed that in an envelope.
(d)At 11.30 am Detective Senior Sergeant Chapman left the premises and his command position was taken by Detective Sergeant Corner, who had returned to the scene having earlier left it at 10.15am.
(e)At 11.40 am in the top right drawer of Ms S’s desk, Detective Holland records finding an authority to disburse money dated 16.12.2015 purporting to be signed by the complainant,18 which she placed in an envelope.
(f)At 11.50 am in the top left drawer of Ms S’s desk, Detective Holland found an authority to disburse money dated 9.11.2015 again, purporting to be signed by the complainant. She placed this item in an envelope.
99 See Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54]; Hannigan v R [2013] NZSC 41, [2013]
2 NZLR 612 at 135. See also discussion in Elisabeth McDonald and Scott Optican (eds) Mahoney on Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at [EV7.05].
prepared to prove those causes of action. The omissions were accidental. The material allegations in those causes of actions were denied. The stance of both parties throughout the proceeding’s history was that the material allegations were disputed. The arbitrary detention was denied and it logically followed that the false imprisonment would be as well. Whilst that did not apply to the misfeasance in public office I considered the absence of any real prejudice to Mr Deliu warranted me permitting the defendant to amend to include the denials to that cause of action as well.
Relief
[273] Mr Deliu is entitled to relief for the arbitrary detention that I have found he suffered. First, he is entitled to a declaration that his rights under s 22 of the NZBORA were breached.
[274] Mr Deliu also seeks monetary compensation for the breach of s 22. It is well settled since Baigent’s Case that grants of monetary compensation for breaches of NZBORA rights are available.100 Such grants are for the purpose of giving effect to or vindicating the rights protected by the NZBORA.101 In principle there must be no overlap with damages awards for torts that are established from the impugned conduct, but here that principle is not engaged.
[275] The conduct of the plaintiff and any knowledge he or she might have relevant to the lawfulness of the conduct giving rise to the breach is irrelevant.102 A plaintiff whose NZBORA rights have been breached cannot be seen to have contributed to the harm he suffered through his conduct. In Wright v Bhosale the plaintiff was a lawyer who knew the Police had no legal basis for the charge he faced.103 This knowledge could not be relied upon by Police to mitigate the failure of the Police officers to inform the plaintiff of the details of the charge that had led to his arrest.
[276] In the present case the Police complaint about Mr Deliu when he “intruded” on the search was that he was aggressive and rude. That was as far as Detective Senior
100 Baigent’s Case [1994] 3 NZLR 667 (CA).
101 See Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 at [131] and the authorities referred to therein.
102 See above at [132].
103 See above.
Sergeant Chapman could go to explain why he reacted as he did. However, I do not find the words Mr Deliu expressed to be rude. This can be seen from reading the transcript of the exchanges between Mr Deliu and Police officers that day. He made it clear he did not want to engage with Detective Senior Sergeant Chapman, but this was in circumstances where rather than speak directly to Mr Deliu about the search and what had been seized already Detective Senior Sergeant Chapman proceeded to give Mr Deliu the NZBORA rights that Police give to suspect persons and he failed to address directly the questions that Mr Deliu posed to him. Those factors exacerbated the situation facing Mr Deliu. Neither party acted politely towards the other.
[277] I am not aware of any legal basis for reducing or removing entitlement to compensation based on a concept of contributory conduct on the part of Mr Deliu. The defendant submitted I should do so but has provided no authority to support that approach. I am not aware of any such authority, nor can I see a basis in principle for taking that approach.
[278] In any event, insofar as there may be extraordinary cases where a citizen who suffers a breach of his or her NZBORA rights can receive a lower amount of compensation because of contributory conduct that is seen somehow to warrant a reduction, I am not persuaded that this case falls into such category. Mr Deliu was angry and upset. But given he was faced with an unlawful Police search of premises out of which he operated his barristers’ practice and there was good reason to be concerned about protection of legal privilege, thus his demeanour is not surprising. The short point is that the Executive is responsible for ensuring agents of the state respect rights protected by the NZBORA. Those rights should always be respected and protected. When they are breached redress is required in order to give effect to and vindicate those rights.
[279] I acknowledge that the circumstances of the breach including the conduct of the plaintiff are relevant to the level of compensation to be awarded insofar as trying circumstances created by a plaintiff’s conduct may in appropriate occasions warrant a lesser sum of compensation, just as more egregious conduct on the part of the defendant can warrant an increase in the level of compensation. In sum, the compensation awarded in any particular case should be designed to best reflect the
injury suffered by the plaintiff and the wider community. A breach of NZBORA rights by agents of the Crown injures the plaintiff and the wider community as everyone has an interest in those rights being upheld.
[280] Here Mr Deliu, as the occupier of part of the legal premises which the Police had entered to execute a search warrant, had every right to question them as to why they were there, expect to view the warrant and to check with them that whatever they may have seized was not part of his legal practice. As the barrister briefed by Ms S to act for her and someone who had already communicated with Police about their wish to interview Ms S, he had good reason to be concerned about the Police presence on level 7 because there would have been his own files relevant to this investigation, which were likely to contain some legally privileged material. It is difficult to see how Mr Deliu could have advised Ms S about the Police investigation without creating some “things” that were protected by legal privilege.
[281] There is also the fact that lawyers are typically protective of legal privilege because they are aware of its fundamental importance to the function of the rule of law. The potential for legal privilege being at risk would be concerning to any lawyer.
[282] Finally, there is the fact that Mr Deliu would have had little time to think about what was happening that day and how best to approach matters. The first he would have known was when he was telephoned and told the Police were at level 7. When he walked into the premises the Police were in the conference room and the search had already begun. Thus, Mr Deliu had to respond to a problem that he had only recently learned about. He did not have time to reflect on how best to approach the Police. Indeed, until he entered the conference room he may have had no idea about how they would respond to him.
[283] Accordingly, whilst I can imagine other possibly better ways of approaching Police when faced with the situation that confronted Mr Deliu, I do not find his conduct to be so unacceptable that it would warrant reducing the level of compensation I consider he should receive.
[284] On the other hand the Police conduct towards Mr Deliu was high-handed, overbearing and unreasonable. He was subject to an unlawful and arbitrary detention that was in the context of an unlawful search of the premises from which he conducted his legal practice. He had informed Police he occupied the premises. He was also the lawyer known by Police to be acting for Ms S. It follows that he had every right to be on the premises and to question Police as to what they had taken in the search in case they had taken something relevant to his clients, which would have included Ms S. Instead, for no good reason he was subject to Police caution, informed he could be arrested for obstruction of Police and then twice told that he was detained under the warrant. This unwarranted display of purported authority which also carried implicit threat that worse was to come if he was not compliant, would have been an unpleasant, humiliating and upsetting experience for him. No Police officer relieved him of the detention and he remained under detention for between 20 to 35 minutes.
[285] In Attorney-General v Niania Tipping J found that, in relation to fixing an award of compensatory damages for wrongful arrest and false imprisonment, where appropriate a greater sum may be necessary to compensate the plaintiff for the injury suffered because of the way in which or the circumstances in which the tort is committed.104 In Dunlea v Attorney-General the majority of the Court of Appeal observed that there are strong reasons for not adopting a different approach when it comes to fixing compensation for a breach of the NZBORA compared with fixing damages for torts.105 The majority explained this on the basis that in Dunlea the same facts lied behind rulings in tort and for breach of the NZBORA: namely, that the state through its officers had acted in breach of the rights of the plaintiffs. I am not aware of any authority to the contrary of what was proposed in Dunlea.
[286] Accordingly, I propose to approach the question of fixing compensation considering the contextual circumstances of the arbitrary detention. It follows that I consider an arbitrary detention in the context of an unlawful search, with the threat of possible arrest if the conduct that attracted the detention order continues, leads to a more serious breach of s 22 than would be the case of an arbitrary detention in the
104 Attorney-General v Niania [1994] 3 NZLR 106 (HC) at 111.
105 Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) at [37] – [38]. The majority declined to resolve whether the approach should be the same or not because the appellants were not on notice from the Crown that the issue would be argued.
context of a lawful search. This is because of the more intrusive nature of the unlawful use of authority by Officers of the State.
[287] Here the unlawful search occurred through poor Police planning and foresight as well as them having a faulty understanding of the protection the law gives to legal privilege. Once the NZLS had advised Police before the search that it did not want to appoint an independent representative the Police should have taken steps to remind the NZLS of its statutory role under s 143(3) of the SSA. The idea of arriving unannounced at the premises of Amicus Law at 9am on the expectation Ms S would be present and co-operate with the search carried high risks. Detective Senior Sergeant Chapman’s practice when executing warrants of typically cautioning persons and detaining them (which was done to Mr Wu as well as to Mr Deliu) is not required by the SSA or the NZBORA. It is capable of appearing to be overbearing conduct. For Police it carried with it the risk that anyone subjected to that process would then exercise his or her right to silence and refuse to engage with Police until in receipt of legal advice. That of itself would have brought the search to a halt. Seemingly Detective Senior Sergeant Chapman did not contemplate that a recipient of a NZBORA caution might choose to exercise the rights it provides to the recipient. The Police had placed themselves in a difficult position when they arrived unannounced only to find Ms S was not present. Their difficulties were exacerbated when Mr Deliu arrived and questioned what they had been doing. However, these were difficulties of their own making.
[288] In Dunlea, which was decided in the year 2000, the unlawful search of a private dwelling without more resulted in an award of $1500 to three of the occupants. Two of the occupants were more affected because they were later held by Police officers on the street while still in handcuffs and treated with indifference by those officers, despite it then being known that they were innocent victims of a Police mistake as to their identities. This resulted in them being awarded $18,000 and $16,000 respectively for false imprisonment. The higher payment also reflected a subsequent and unlawful search of that plaintiff.
[289] In Wright v Bhosale Mr Wright received $12,000 for false imprisonment and false arrest and $2000 for arbitrary arrest to affirm the right protected by s 22(a) of the
NZBORA.106 The Court finding that if NZBORA is to be more than an empty statement the Courts must be able to grant appropriate and effective remedies where rights have been infringed.107 Mr Wright was wrongly arrested by Police because as a passenger in a vehicle he lawfully refused to give his personal details to Constable Bhosale. Mr Wright was then transported to the Police station and charged. He was ultimately granted Police bail after being locked in a Police cell for approximately two and a half hours. Hinton J recognised there should be no doubling up with compensation awarded under NZBORA and for torts like false imprisonment.108 Thus the $12,000 in compensatory damages can be viewed as providing compensation for the full extent of the private wrong and harm suffered by Mr Wright, whilst the $2000 compensation for the breach of s 22(a) can be viewed as a separate recognition of the fact s 22(a) of the NZBORA was breached. Otherwise to view the $2000 award as also reflecting the wrong and harm done to Mr Wright by the breach would necessarily involve an element of doubling up.
[290] Wright v Bhosale is a helpful decision because it is relatively recent. Many of the NZBORA cases involving breaches of rights protected by NZBORA arise in the criminal law context where the admissibility of evidence is challenged, and questions of compensation are not in issue. Cases that do involve compensation which date back 10 or more years show levels of compensation which may now require adjustment.
[291] I consider that $3000 is a sum that would properly compensate Mr Deliu for the breach of s 22(b) that he suffered and vindicate the fundamental right preserved by that section. In arriving at this quantum I have also considered the fact the breach was suffered for a short period of time and did not involve a complete loss of liberty. On the other hand, I bear in mind that there was an infringement of Mr Deliu’s liberty which he suffered at his work premises where he could be expected to feel safe from such intrusions. Instead he found himself vulnerable to arrest (which was threatened) and ordered to be detained, backed up by the earlier giving of a caution as is required by s 23 of NZBORA for persons who are subject to arrest or detention under an enactment. Not only was Mr Deliu rendered vulnerable to arrest, Detective Senior
106 Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 at [159].
107 At [131].
108 At [130].
Sergeant Chapman, who placed Mr Deliu in this position, acted in a high-handed and overbearing manner to the point where Mr Deliu’s will to resist was overborn to such a degree that he was prepared to retreat from the search area of the legal premises to his own office in compliance with the detention order. This would have been an unpleasant and humiliating experience for him, particularly given it occurred at his place of work, in front of many of his colleagues. Like any other citizen he is entitled to look to NZBORA to protect him from such experiences.
[292] In Baigent’s Case Cook P acknowledged the need for redress of breaches of affirmed human rights as being in a field of its own.109 He distinguished NZBORA compensation from damages in tort. He considered that the level of compensation should in addition to physical damage take account of intangible harm such as distress and injured feelings, the gravity of the breach, the need to emphasise the importance of the affirmed rights and to deter breaches as also being proper considerations relevant to the level of compensation. This was qualified by the caveat that extravagant awards are to be avoided. Here I consider $3000 is not extravagant. The defendant submitted that if I had reached the point where I was prepared to award compensation I should award no more than $400, that being a sum that was equivalent to one hour of Mr Deliu’s charge out rate. The reasoning being that the detention would at most have adversely affected his ability to work for one hour. I reject that submission. I consider that here at least $2000 should be awarded to compensate Mr Deliu for the distress and harm he suffered that day with an additional $1000 to reflect his and the public’s interest in the protection, promotion and vindication of the rights affirmed by s 22 with the end sum being $3000.
[293] Mr Deliu also sought an apology from Police. I consider the declaration made in this judgment, and the sum of compensation awarded are a proper reflection of the redress to which Mr Deliu is entitled. Public apologies are usually associated with the tort of defamation, and no authority to support a direction for the type of apology sought by Mr Deliu in the amended statement of claim was drawn to my attention. Nonetheless it is clear to me from Baigent’s Case that the range of remedies available to the Court to redress breaches of NZBORA is wide. I consider Mr Deliu is entitled
109 Baigent’s Case [1994] 3 NZLR 667 at 677-678.
to an apology but it need be no more than a written apology sent to him. How he then chooses to treat the apology is a matter for him. This deals with the relief sought for this cause of action.
[294] Mr Deliu also sought a declaration the judgment be referred to the Independent Police Complaints Authority (IPOC). However that was in relation to the relief sought for misfeasance in public office. He has not succeeded in that cause of action so no relief is available. He did under the relief for arbitrary detention seek any further relief the Court may grant. I do not consider it appropriate under that head to make the direction he seeks. Also it is unnecessary. He is at liberty to refer the judgment to the IPOC should he wish to do so.
Result
[295] The claim for arbitrary detention under s 22(b) of the NZBORA is proved and judgment is entered against the defendant for Mr Deliu.
[296] The claims in false imprisonment and misfeasance in public office are not proved and are therefore dismissed. Judgment is entered for the defendant on these claims.
[297]I make the following declaratory order:
The detention of Dr Frank C. Deliu at Level 7, 175 Queen Street, Auckland CBD, New Zealand on 31 August 2016 for a period of: 20 – 35 minutes was arbitrary and a breach of his human rights under s 22 of the NZBORA.
[298] Mr Deliu is awarded $3000 in public law compensation for the breach of s 22(b) of the NZBORA.
[299] The defendant is to provide Mr Deliu with a written letter of apology acknowledging the breach of s 22(b) of the NZBORA.
[300]The parties have leave to file memoranda as to costs.
[301] The judgment is to be delivered to the parties only. This is because there are currently suppression orders in place. The parties have 10 working days from delivery of the judgment to file memoranda on the question of publication and whether any continued name suppression is required.
Duffy J
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