Gregory v Gollan - [2008] NZCA 568

IN THE COURT OF APPEAL OF NEW ZEALAND
CA699/07
[2008] NZCA 568

BETWEENMICHAEL GREGORY

Appellant

ANDTHOMAS PATRICK JOSEPH GOLLAN

First Respondent
ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Second Respondent
ANDJOHN BERNARD MARIE FURLONG

Third Respondent
ANDMILES EDWARD FINLAISON SUTHERLAND

Fourth Respondent
ANDNIGEL JAMES TURNBULL

Fifth Respondent

Hearing:22 October 2008

Court:William Young P, Chambers and Arnold JJ
Counsel:G Little and C S Henry for Appellant

M T Davies for Second Respondent

Judgment:19 December 2008 at 2.15 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.
BThe appellant must pay the respondent:
(a)costs on the application for special leave to appeal in the sum of $1,500;
(b)costs for a standard appeal on a band A basis; and
(c) usual disbursements.

REASONS OF THE COURT

(Given by Chambers J)

Alleged wrongful arrest
[1]       Michael Gregory, the appellant, has brought a claim in the High Court at Auckland against four police officers (the first, third, fourth, and fifth respondents) and the Attorney-General (the second respondent). The Attorney-General has been sued in respect of acts of the named police officers and other unnamed police officers. Mr Gregory alleges that, on 24 June 2001, a number of police officers entered his home uninvited, sprayed him with pepper spray, restrained him, and handcuffed him. They subsequently took him to the Papakura Police Station, where he was required to remain until he appeared in court. The police charged Mr Gregory with a number of offences, including aggravated burglary, assaulting a police officer, and resisting arrest.
[2]       Mr Gregory’s father instructed a private inquiry agent. That agent investigated the burglary police thought Mr Gregory had committed. As a result of the information the agent obtained, another person altogether was later charged and ultimately convicted of the burglary. About two months after Mr Gregory’s arrest, the police withdrew all charges against him. It is common ground now that Mr Gregory had no involvement at all in the burglary.
[3]       Mr Gregory is now suing for the wrongful entry into his home, his arrest, and his subsequent prosecution. His latest statement of claim contains no fewer than seven causes of action: assault and battery; trespass to land; unlawful arrest; false imprisonment; malicious prosecution; conspiracy to injure by unlawful means; and misfeasance in a public office. He seeks with respect to each cause of action substantial damages, including aggravated and exemplary damages.
[4]       What is currently in dispute is who should determine this case: a judge alone or a judge and jury? Mr Gregory wants a judge and jury, a course strongly opposed by the Attorney-General. Under s 19A(2) of the Judicature Act 1908, either party can, in “any civil proceedings to which this section applies”, apply for trial by jury. Mr Gregory did so apply. Under subs (5) of that section, however, the other party can seek an order to the contrary, a right the Attorney-General exercised. At first instance, Associate Judge Doogue agreed with the Attorney-General’s stance: HC AK CIV 2005-404-3485 21 September 2006. Mr Gregory applied to have that…

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 Gregory v Gollan

Details

AGLC: Gregory v Gollan [2008] NZCA 568
Case: [2008] NZCA 568
Decision Date: 19 December 2008

CaseChat Overview and Summary

In the case of Gregory v Gollan, the appellant, Michael Gregory, brought a claim against four police officers and the Attorney-General, alleging wrongful arrest and other offenses. The primary dispute was whether the case should be tried by a judge alone or by a judge and jury. The legal issues before the court were whether the judges below correctly found that one of the jurisdictional criteria was met, the role of Magna Carta in this context, and if the judges correctly exercised their discretion in determining the proceeding to be tried before a judge without a jury. The court found that the judges below were correct in finding the jurisdictional criterion met, and that Magna Carta did not apply to the case. The court also found that the judges correctly exercised their discretion. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs.

The court's reasoning focused on the difficulties in instructing a jury and the interlocking questions of law and fact that would arise in the case. The court found that the case involved many legal difficulties, particularly in determining the legal justification for the police officers' actions. The court also found that the claim could have been addressed with fewer causes of action, which would have simplified the case. The court rejected the argument that Magna Carta applied to the case, as it was concerned with criminal law, not civil law. The court found that the judges below correctly exercised their discretion, despite some concerns about the weight given to certain factors. The court concluded that the appeal should be dismissed, and the appellant was ordered to pay the respondent's costs.

Orders