Fuller v Attorney-General
[2025] NZHC 618
•24 March 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-000070
[2025] NZHC 618
BETWEEN PETER MALCOLM FULLER
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 18 March 2025 Appearances:
Plaintiff in person
H T Reid for Defendant
Judgment:
24 March 2025
JUDGMENT OF BREWER J
This judgment was delivered by me on 24 March 2025 at 11.30 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Meredith Connell (Auckland) for Defendant
FULLER v ATTORNEY-GENERAL [2025] NZHC 618 [24 March 2025]
Introduction
[1] Mr Fuller, representing himself, sues the Attorney-General over actions he alleges were taken by a police officer on 26 June 2021.
[2]In his amended statement of claim dated 30 July 20241 Mr Fuller pleads:
4.On or about 5pm on 26 June 2021, Plaintiff was unlawfully assaulted and detained by way of false arrest and incarceration for two and a half days at the Waitakere Henderson Police Station.
5.Approximately one week prior, Plaintiff had been arrested for non- appearance due to a mix-up in court dates. The Plaintiff was detained overnight and appeared before a community magistrate the following morning.
6.The Waitakere District Court imposed strict daily reporting conditions on the Plaintiff between 8am and 4pm at the Waitakere Police Station, despite the Plaintiff having adhered to his residential bail conditions for the previous eight months.
7.On 26 June 2021, Plaintiff was one hour late for reporting due to a meeting with legal counsel, Robin McIvor. Plaintiff promptly explained and proved this to the sergeant using his cellphone.
8.Despite the valid and truthful explanation, the sergeant accused Plaintiff of being belligerent, forcefully grasped Plaintiff’s upper left arm, and unlawfully detained him in police custody for two and a half days.
9.The actions of the sergeant constituted a breach of the Plaintiff’s rights under Section 22 and Section 23 of the New Zealand Bill of Rights Act 1990.
10.The sergeant’s actions amounted to assault, false imprisonment, and unlawful detention, all are actionable torts under common law.
[3]Mr Fuller seeks:
12. General damages for emotional distress, physical pain, and loss of liberty in the amount of (fifty thousand dollars) $50,000.00 NZD.
[4] At the trial on 18 March 2025, I heard evidence from Mr Fuller and from Mr Paul Williams (who had accompanied Mr Fuller to the police station). The Crown called the police officer concerned, Sergeant Ian Carter.
1 The casebook exhibits an earlier statement of claim dated 6 June 2024. There are no material differences.
[5] There are few differences between the parties as to the facts. I take into account that (unsurprisingly) Sergeant Carter did not make notebook entries as to the events which occurred, but did have reference to the Breach of Bail form he completed contemporaneously. Otherwise, his memory of the events is limited because of the passage of time.
[6]I am satisfied, on the balance of probabilities, that this is what happened:
(a)Mr Fuller, who was on bail, failed to attend a court hearing in June 2021. He was arrested and brought before a Community Magistrate on 25 June 2021. The Community Magistrate further released him on bail but added a condition requiring him to report daily to the Henderson Police Station between 8 am and 4 pm.
(b)Mr Fuller was told of this by the Community Magistrate (he accepts this probably happened and it is extremely unlikely that it did not). Mr Fuller also signed the new bail bond which recorded the condition.
(c)The next day, Saturday, 26 June 2021, Mr Fuller did not report to the Henderson Police Station until shortly after 5 pm. He was just over an hour late.
(d)Mr Fuller went to the police station in a car in the company of Mr Williams. Mr Williams stayed in the car when Mr Fuller first went into the police station.
(e)When first in the police station, Mr Fuller was asked by Sergeant Carter why he was late. Mr Fuller said he had been in an important meeting with his legal counsel. Sergeant Carter was sceptical because it was a Saturday. Further, although Mr Fuller could say that the counsel’s name was “Robin”, he did not know the last name.
(f)Mr Fuller offered to telephone Robin. His cellphone was in the car. Sergeant Carter (and possibly another police officer) and Mr Fuller
went to the car and retrieved the cellphone.2 Mr Fuller telephoned Robin after returning to the police station. Sergeant Carter took the cellphone from him and spoke to Robin who told him that he was retired, that the visit was a social one, and that legal matters had been discussed in general.3
(g)Sergeant Carter then arrested Mr Fuller for breaching his bail and required Mr Fuller to accompany him to the custody unit. Mr Fuller did not comply.
(h)Mr Fuller was not in a calm and co-operative mood. He was voluble and of the view that he should not be facing charges at all, and felt he had given a valid excuse for being late in reporting. In cross-examination, Mr Fuller described what happened:
Q.All you’ve said in evidence is that Sergeant Carter arrested you, that’s correct, isn’t it?
A. Okay, yes.
Q.You’ve also mentioned something about an assault, haven’t you?
A. Yes I have, the way he arrested me and, yeah.
Q. When you say “the way he arrested you” are you referring to what you say in your statement of claim about Sergeant Carter forcefully grasping your upper arm?
A. Yes, that’s right, yes.
Q. Just for clarity, that’s what you say the assault was?
A. Yes, yes.
Q.You’ve not said anything in your evidence about how long that physical contact on your upper arm lasted, have you?
A. Probably not, no.
2 Mr Fuller and Mr Williams say that Sergeant Carter reached into the car and got the cellphone from the center console. Sergeant Carter was not cross-examined on the point and I do not think it is relevant to the pleaded case.
3 It is clear from Mr Fuller’s oral evidence that Robin was a social acquaintance with an interest in what Mr Fuller describes as “common law”.
Q. How long do you say that that physical contact on your upper arm lasted?
A.Geez, it would have been probably about three or four seconds maybe, yeah, something like that. That’s right, he went to drag me and I sort of, I resisted by staying there, okay, and then after like two or three seconds he, you know, I went with his motion basically but I’m pretty sure it was – I don’t know whether they’re taught like martial arts or something it felt like a pressure point sort of move and it did, I did feel it, yeah.
Q. When you say you resisted by staying there what do you mean by that?
A.I was standing there because I was in disbelief that I was being arrested because I’ve just proven I was only one hour later and I’ve just proven what I said was true, is valid, okay, and even if he wasn’t a lawyer that’s beside the point, okay, it’s legal counsel it’s not – I’m not being dishonest.
Q. Perhaps I could ask that again. When you say you resisted by staying there what are you referring to?
A. I stood still, I stood still, all right and, yeah, but then I had to move with the motion ‘cos I went with the pain.
Q. When you say you stood still, do you mean you resisted moving with Sergeant Carter?
A. Yeah, I’d say that, yeah.
Q. Sergeant Carter is going to give evidence that you verbally protested when he started to arrest you, is that correct?
A. I can’t recall it but I probably did, I would have, yeah.
(i)Sergeant Carter grasped Mr Fuller’s upper arm for a few seconds to guide Mr Fuller towards the custody unit. He did so because Mr Fuller was protesting and failing to move. Mr Williams, who was inside the police station by this point, heard Sergeant Carter tell Mr Fuller to “stop struggling”.
(j)Mr Fuller was held in custody at the police station until he was brought before the District Court on the Monday morning. He was again granted bail and the daily reporting clause was deleted.
The law applied to the facts
[7]Section 35(1) of the Bail Act 2000 provides:
Any constable may arrest without warrant a defendant who has been released on bail by a court or Registrar or Police employee if the constable believes on reasonable grounds that—
(a)the defendant has absconded or is about to abscond for the purpose of evading justice; or
(b)the defendant has contravened or failed to comply with any condition of bail.
[8] Having heard from Mr Fuller, I understand his position to be as set out in his synopsis of submissions:
2.2 On 26 June 2021, the Plaintiff was one hour late in reporting due to a scheduled meeting with legal counsel, Mr. Robin McIvor. Upon arrival at the police station, the Plaintiff provided a valid explanation supported by evidence from his cellphone.
[9] With all respect to Mr Fuller, Robin was not his legal counsel as that term is understood in the context of criminal proceedings. Nor was engaging socially with Robin a “valid explanation”. A reporting condition in a grant of bail is part of a court order.
[10] Sergeant Carter knew that Mr Fuller had breached the reporting condition of his bail, he had investigated the explanation offered by Mr Fuller and found that it did not provide a reasonable excuse. Sergeant Carter was entitled to arrest Mr Fuller.
[11]Section 39 of the Crimes Act 1961 provides:
Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him or her of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:
provided that, except in the case of a constable or a person called upon by a constable to assist him or her, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.
[12] Therefore, Sergeant Carter, in arresting Mr Fuller, was justified in using “such force as may be necessary to overcome any force used in resisting” the arrest.
[13] I find that Sergeant Carter was justified in grasping Mr Fuller firmly by the upper arm for the few seconds he did in order to make Mr Fuller move to the custody unit. Mr Fuller was being non-compliant. Sergeant Carter told him to “stop struggling”. Mr Fuller at once ceased to resist his arrest and Sergeant Carter released his grip.
[14] Section 35 of the Bail Act required that Mr Fuller, having been arrested, be brought before the District Court as soon as possible. There is no evidence before me as to whether this requirement was breached. Mr Fuller’s position appears to be that he should not have been held in custody at all and that the length of his detention goes to the damages he should be awarded.
[15] The arrest took place after 5 pm on a Saturday. Mr Fuller was brought before the District Court on Monday morning and released from the District Court at approximately 10.55 am. On this evidence, the s 35 requirement was complied with.
New Zealand Bill of Rights Act 1990
[16] Mr Fuller pleads breaches of ss 22 and 23 of the New Zealand Bill of Rights Act 1990. He does not give particulars, but I take it that he considers the evidence of his arrest and detention establishes his case.
[17]Section 22 provides:
Everyone has the right not to be arbitrarily arrested or detained.
[18] As I have found, Mr Fuller was arrested and detained lawfully. His s 22 right was not breached.
[19]Section 23 provides:
(1)Everyone who is arrested or who is detained under any enactment—
(a)shall be informed at the time of the arrest or detention of the reason for it; and
(b)shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c)shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2)Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3)Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
Everyone who is—
(a)arrested; or
(b)detained under any enactment—
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
[20] Mr Fuller does not particularise his allegation that his s 23 rights were breached other than to assert in his synopsis of submissions:
Section 23 — Rights of persons arrested or detained, including the right to be informed of the reasons for arrest and the right to consult legal counsel.
[21] Mr Fuller did not, in his evidence-in-chief, say that he was not afforded any of his rights as affirmed by s 23. However, in cross-examination, Ms Reid put it to him that Sergeant Carter had “read [him] his Bill of Rights”.
[22] Mr Fuller was unsure of that. However, he accepted that he received and signed a Notice To Person In Custody that set out his rights.
[23] Sergeant Carter’s evidence-in-chief was that he arrested Mr Fuller for breaching his bail and that he “afforded him his Bill of Rights”. Mr Fuller did not cross-examine Sergeant Carter on this evidence.
[24] For the sake of completeness, I will refer to s 23(5). Although Mr Fuller made no allegation that s 23(5) was breached, he was asked questions by Ms Reid about his conditions of detention. Mr Fuller had no complaints, save mentioning in passing the blandness of the food and the lack of a pillow. Ms Reid pointed to a police document that established, in accordance with standard practice, that Mr Fuller’s mental and physical health were evaluated.
[25] I find, on the balance of probabilities, that there was no breach of Mr Fuller’s s 23 rights.
Decision
[26] I find that there was no breach of Mr Fuller’s rights under the New Zealand Bill of Rights Act 1990.
[27] I find that the torts of assault and false imprisonment have not been proved. Indeed, there is no foundation for them.
[28] There is no tort of “unlawful detention” (but, I take it that Mr Fuller simply used this expression synonymously with “false imprisonment”).
[29]In short, Mr Fuller does not succeed in his claims.
Costs
[30] Mr Fuller is liable to pay costs to the Attorney-General. If they are claimed, then I will receive the Crown’s memorandum no later than 2 May 2025. In such event, Mr Fuller may file a reply memorandum no later than 16 May 2025.
Brewer J
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