IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-628
[2022] NZHC 2465
UNDER
the New Zealand Bill of Rights Act 1990
BETWEEN
DANIEL CLINTON FITZGERALD
Plaintiff
AND
ATTORNEY-GENERAL OF NEW ZEALAND
Defendant
Hearing:
15–16 March 2022, further submissions received 30 March and
12 May 2022
Counsel:
A S Butler and D A Ewen for Plaintiff
A Powell, M McKillop and R McMenamin for Defendant
Judgment:
27 September 2022
JUDGMENT OF ELLIS J
[1] Mr Fitzgerald wrongly spent over four and a half years in prison as a result of what the Supreme Court has held was a misinterpretation of the statutory provisions governing the sentencing of “third strike” offenders.[1] The Court held the seven year sentence imposed on him following his conviction for indecent assault was in breach of his fundamental right to be free from grossly disproportionate punishment, as confirmed by s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA).[2]
[1] Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 [Fitzgerald (SC)]. The “three strikes” regime was established in 2010 by inserting ss 86A to 86I into the Sentencing Act 2002. Those provisions (and the three strikes regime) have, in the last month, been repealed by the Three Strikes Legislation Repeal Act 2022. Although sch 1AA, pt 4, cl 15 of the Sentencing Act bars claims for compensation arising from the repealed regime, the entitlement to bring a claim for breach of the New Zealand Bill of Rights Act is preserved.
[2] Both the High Court and the majority in Court of Appeal considered that the three strikes regime compelled the sentencing Court to impose the maximum sentence of seven years: R v Fitzgerald [2017] NZHC 2206 [Fitzgerald (sentence indication)]; R v Fitzgerald [2018] NZHC 1015
[2] In these proceedings, Mr Fitzgerald claims the undisputed breach of s 9 gave rise to a further infringement of his fundamental rights. He says his imprisonment in breach of s 9 rendered his detention arbitrary and now seeks damages for a breach of s 22 of the NZBORA.[3]
[3] Mr Fitzgerald’s claim was heard together with a similar (but not identical) application for damages by Mr Koro Putua. I have recently delivered a separate decision on Mr Putua’s claim: Putua v Attorney-General [2021] NZHC 2277.
[3] But the Supreme Court’s earlier decision in Attorney-General v Chapman is a potential impediment to this claim.[4] In Chapman the Court (by a three: two majority) held there is no jurisdiction to hear NZBORA claims relating to judicial acts or omissions. Although that decision has since been questioned by the United Nations Human Rights Committee,[5] counsel for Mr Fitzgerald acknowledge that it remains binding unless and until it is revisited by that Court.
[5] Views adopted by the Committee under article 5(4) of the…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Fitzgerald v Attorney-General
Sign in free to access the full text
Details
AGLC
Fitzgerald v Attorney-General [2022] NZHC 2465
Case
[2022] NZHC 2465
Decision Date
CaseChat Overview and Summary
The case of Fitzgerald v Attorney-General involved a claim by Daniel Clinton Fitzgerald for damages arising from his wrongful detention following a breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). Fitzgerald had been sentenced to seven years in prison for a charge of indecent assault, which was a third strike offence under New Zealand's three strikes regime. The Supreme Court had previously ruled that this sentence was grossly disproportionate and in breach of Fitzgerald's right under section 9 of the NZBORA not to be subjected to grossly disproportionate punishment. Fitzgerald sought damages for the period of his wrongful detention and for the breach of his rights. The central issue was whether the Crown prosecutor was required to consider the implications of section 9 before charging Fitzgerald with the indecent assault offence and whether their failure to do so constituted a breach of his rights. The court held that the Crown prosecutor was indeed obliged to consider the implications of section 9 and that their failure to do so resulted in a breach of Fitzgerald's rights. The court also concluded that the Crown, represented by the Attorney-General, was liable for the Crown prosecutor's breach. The court awarded Fitzgerald damages of $450,000, reflecting the period of his wrongful detention and the severity of the breach of his rights, along with interest on the award. The decision highlighted the importance of considering the implications of section 9 in the exercise of prosecutorial discretion and the need for effective redress for breaches of fundamental rights.