Hunter v Neville
[2017] NZHC 1477
•29 June 2017
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CIV 2016-454-44 [2017] NZHC 1477
BETWEEN BRIAN HUNTER
Plaintiff
AND
JULEANNE DENISE NEVILLE First Defendant
AND
JODI MARIE JEFFREY Second Defendant
AND
THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Defendant
Hearing: 2 March 2017 Counsel:
G E Minchin for Plaintiff
S K Barr for DefendantsJudgment:
29 June 2017
JUDGMENT OF ELLIS J
[1] The central issue raised by these proceedings is whether probation officers who prepare reports for sentencing purposes (PAC reports)1 are immune from subsequent suit over the contents of such a report. A secondary question is whether such officers could conceivably owe a duty of care or a statutory duty to a criminal defendant who is the subject of such a report.
[2] Associate Judge Christiansen found that witness immunity operated to protect probation officers in these circumstances and that no duty of care was owed. He struck out the plaintiff ’s claims of misfeasance in public office and negligence on
that basis.2 Mr Hunter now seeks a review of that decision. Although his application
1 PAC stands for “Provision of Advice to Courts”.
2 Hunter v Neville [2016] NZHC 2261.
HUNTER v NEVILLE [2017] NZHC 1477 [29 June 2017]
for review of that decision was filed out of time the defendants do not oppose the grant of leave.
The plaintiff ’s claim
[3] The following narrative is largely based on the allegations in the plaintiff’s
statement of claim.
[4] In 2011, the plaintiff pleaded guilty to six charges of forgery. In June 2011, prior to his sentencing, a PAC report was prepared for the District Court (the First Report). That report advised that the plaintiff’s rural rental address was suitable for an electronically monitored (EM) sentence and that EM coverage at the address was good.
[5] The original sentencing date was adjourned. The probation service sought to provide, and the District Court ordered, an updated PAC report.
[6] On 30 September 2011 two probation officers, Ms Neville (the first defendant) and Mr Robbins, together with a contractor (Mr Harrison) visited the plaintiff’s address to conduct a further assessment of suitability. Mr Hunter says that the testing was conducted by Mr Harrison under the supervision of the two probation officers. He says that the testing undertaken was flawed, and known by the first defendant to be so.
[7] In the result, Mr Hunter’s address was assessed as unsuitable for an EM sentence on the grounds that there was inadequate cellular coverage and poor access. This was formally recorded in the second PAC report (the Second Report). Mr Hunter alleges that the first defendant knew that:3
(a) it was not true that the plaintiff’s property had poor access;
(b) there were alternatives to cellular coverage for monitoring purposes;
3 What follows is effectively the pleading of malice, which is a required element of the tort of misfeasance. As I understand it, Mr Hunter’s position is that malice will be established by a deliberate act that the defendants knew that they did not have power to do and that they knew was likely to injure him, rather than by a targeted act.
(c) the advice in the report would be accepted by the District Court; and
(d)the plaintiff would need to find an alternative address in a short timeframe in order for an EM sentence to be available to him.
[8] Following receipt of this report, on 15 October 2011 Mr Hunter provided the Probation Service with a report on cellular coverage at the property prepared by Ultimate Mobile Limited. It is pleaded that the report-writer found that there was adequate coverage at the property as it was located only l.8 kilometres from a Vodafone cell tower. It is pleaded that the report describes the testing methods carried out on 30 September 2011 as “very concerning”.
[9] On 9 March 2012 two probation officers, Mr Robbins, Ms Jeffery (the second defendant) and a contractor (Mr Barnes) went to the plaintiff’s address to conduct a further EM assessment. Mr Hunter says that Mr Barnes established that the property was suitable for EM purposes. But the subsequent PAC report (the Third Report) dated 23 March 2012 simply stated that that the address was unsuitable and appended the Second Report in support of that proposition. Mr Hunter alleges that this statement was known by Ms Jeffery to be false.
[10] On 5 June 2012 Mr Hunter was sentenced to 12 months’ home detention and
100 hours community work.4 His home detention address was different to that which was the subject of the impugned PAC reports. He says that he was forced to find that alternative address at short notice and at some considerable personal cost as a result of the falsity of the content of the Second and Third Reports.
[11] So Mr Hunter’s claim was that the defendants’ recommendations to the Court required him to find an alternative address for home detention purposes, causing him losses. He sought damages arising from the alleged misfeasance in public office and/or negligence. More particularly, he claimed that he lost the opportunity to
purchase the rental property in which he had been living and that he suffered
4 Police v Hunter DC Palmerston North CRI-054-834, 5 June 2012. For reasons that are not presently material, Collins J allowed Mr Hunter’s appeal against that sentence and substituted a sentence of community detention: Hunter v Police [2012] NZHC 3249.
business losses totalling $225,000, relocation costs of $10,000 and emotional harm, for which he seeks compensation of $20,000.
The Associate Judge’s decision
[12] As I have said, the Associate Judge struck out Mr Hunter’s claims. In doing so he rejected Mr Minchin’s submission that witness immunity did not protect the defendants because they were not witnesses who had given evidence in Court. He also rejected the contention that the actions of the probation officers were not protected because they were investigatory in nature. The Judge said that the claim as pleaded focused on the contents of the PAC report rather than acts done during some earlier investigatory process and that, on his view of the relevant authorities, the writer of such a report enjoyed immunity. And he also held that no duty of care could be owed by the writer of a PAC report to a criminal defendant because such a duty would cut across the statutory regime and the statutory duty owed by a probation officer owed to the Court under the Sentencing Act 2002 (the SA).
The relevant approach to review and the grounds advanced
[13] As to the principles governing review of an Associate Judge’s decision, there
was no dispute that:5
[4] … the approach is essentially appellate. The starting point is the Associate Judge’s decision. The plaintiff has the burden of persuading the. Court that the decision was wrong - that it rested on unsupportable findings of fact and/or applied wrong principles of law. The Court will apply the approach in Austin Nicholls & Co Ltd v Stichting Lodestar which involves the Court making its own assessment as to whether the original decision is wrong.
[14] In the present case, Mr Minchin essentially submits that the Judge was wrong in law to find that witness immunity applied to protect the defendants and that no duty could be owed. As well as reiterating the position he had taken before the Associate Judge in relation to the immunity issue he relied, in particular, on the
Court of Appeal’s recent judgment in EBR Holdings Limited (in liquidation) v
5 Perriam v Wilkes [2014] NZHC 2192.
McLaren Guise Associates Limited which was released after the Associate Judge’s
decision.6
[15] Mr Minchin also submitted that the Judge’s conclusions were based on factual misapprehensions as to the circumstances and timing of the Third Report. But in light of the view to which I have come on the legal grounds of review, I do not need to consider that in this judgment. I merely record that, even putting to one side the fact that the factual matters now raised have not been pleaded, I would not have granted the application for review on that ground. Given that the Third Report merely annexed the Second Report there could have been be little by way of prejudice or surprise arising from it, however little time Mr Hunter had it for.
The statutory context
[16] Before turning to consider the merits of the review application it is necessary to say a little more about the wider statutory context in which PAC reports are ordered and prepared.
[17] Probation officers are appointed by the Chief Executive of Corrections under the State Sector Act 1988. One of the statutory functions of probation officers is “to provide all the reports and information that a court ... may require under any enactment”.7 It would be difficult, I think, to contend that the defendants are not, therefore public office holders for the purposes of a misfeasance cause of action.
[18] PAC reports are authorised by ss 26 and 26A of the SA. Where an offender has been convicted of an offence punishable by imprisonment, the court may direct a probation officer to prepare a report under s 26 which may address any or all of the matters set out in subs (2).8 Where the court is considering a sentence of community detention or home detention, it must direct a probation officer to prepare a report in accordance with s 26A(2). That subsection requires such a report to include,
amongst other matters, “information regarding the suitability of the proposed curfew
6 EBR Holdings Limited (in liquidation) v McLaren Guise Associates Limited [2016] NZCA 622.
7 Corrections Act 2004, s 25(1)(e).
8 These include a range of matters, including information about the offender and his or her circumstances, factors contributing to the offending, recommendations about the type of sentence and any necessary conditions on such a sentence.
address or home detention residence …”. A PAC report prepared under s 26A(2)
may also include any of the matters referred to in s 26(2).
[19] When a report is submitted to a court, section 28 requires that a copy is to be provided to the offender’s counsel and, ordinarily, to the offender. The prosecutor may also have access to the report. Section 28(3) provides that the offender or his or her counsel may tender evidence on any matter in a report that is submitted to a court. Ordinarily, this would be the appropriate mechanism by which to challenge matters of information and assessment provided to the court by a probation officer.
Discussion
Witness immunity
[20] A useful point of ingress to the law relating to witness immunity and the issues in this case is the Court of Appeal’s recent decision in EBR. As observed earlier, this decision was released after the Associate Judge’s judgment. EBR involved claims alleging false representations by a chartered accountant in an affidavit and in a subsequent liquidator’s examination under s 261 of the Companies Act 1993. The principal issue before the Court was whether it could safely be said that witness immunity continued to apply to protect expert witnesses in civil
proceedings in light of the decision of the UK Supreme Court in Jones v Kaney.9 Of
some significance is the fact that it overturned the decision in the High Court striking out the plaintiff’s claim on the grounds of witness immunity.10 It was, of course, the High Court’s decision that had been drawn to the Associate Judge’s attention.
[21] The Court of Appeal summarised the history of witness immunity thus:
[12] The longevity of the common law principle of witness immunity is manifest in the statement of Stout CJ in 1902 in Jellicoe v Haselden:
The cases are numerous in which Judges, counsel, witnesses, & c, have been held not liable for statements made by them in Courts, and it is not necessary to cite them. The law was laid down broadly by Lord Mansfield, CJ, in Rex v Skinner as follows: “Neither party,
9 Jones v Kaney [2011] UKSC 13, [2011] 2 AC 398.
10 EBR Holdings Ltd (In Liq) v McLaren Guise Associates Ltd [2015] NZHC 1996, [2016] 2 NZLR
96. Brewer J had proceeded on the basis that Jones could not yet be said to have been endorsed in New Zealand.
witness, counsel, jury, or Judge, can be put to answer, civilly or criminally for words spoken in office.” Numerous cases since 1772 have followed that rule… .
The original focus of the immunity was on defamation claims; in New Zealand, such claims are now the subject of the absolute privilege conferred by s 14(1) of the Defamation Act 1992. Witness immunity has since been applied to bar other civil causes of action, such as negligence.
[13] In Darker v Chief Constable of West Midlands Lord Cooke observed that, while in principle absolute immunity is inconsistent with the rule of law, in a few strictly limited categories of cases it has been granted, grudgingly, for practical reasons. The practical reasons which justify the immunity from suit enjoyed by a witness are to encourage freedom of speech in the judicial process, by relieving the witness of the fear of vexatious litigation, and to limit the scope for re-litigation.
[14] The circumscribed nature of the common law immunity is reflected in the qualifications noted by this Court in New Zealand Defence Force v Berryman:
[68] We recognise that the immunity is limited. It is confined to what is said in court and necessary preliminaries to that (see Darker). It is also merely an immunity from civil suit. Thus an expert witness may face professional sanctions in respect of evidence, see for instance Meadow. And obviously criminal prosecution for perjury may result from the deliberate giving of false evidence. Claims of malicious prosecution are maintainable even though such a claim might necessarily involve impugning the evidence given during the preceding criminal proceedings. …
To those exceptions Lord Collins in Jones v Kaney added prosecutions for perverting the course of justice, contempt of court or misfeasance in public office.
(footnotes omitted.)
[22] Mr Minchin seized upon this last sentence as a basis for a (new) submission that witness immunity does not apply at all where the claim is (as here) one of misfeasance. That submission requires further examination.
[23] I begin by recording that what Lord Collins actually said in Jones v Kaney
was this:11
In England there has never been complete immunity for expert witness evidence, any more than there has been complete immunity for other witnesses. The general principle does not preclude prosecutions for perjury,
11 Jones v Kaney, above n 9, at [82] Jones itself was a negligence case. The issue raised by the appeal was whether an expert witness could be liable (or was immune) in relation to a joint witness statement he had prepared.
or for perverting the course of justice, or for contempt of court, or liability for malicious prosecution, or misfeasance in public office: see, e.g. Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435.
[24] The first point is that his Lordship’s reference to witness immunity not “precluding” liability for misfeasance is, with respect, a little confusing. While the immunity has never protected a defendant in a prosecution for perjury or from liability for malicious prosecution, there are a number of decided cases where witness immunity has been held to apply where misfeasance is alleged. The most recent New Zealand example appears to be the Court of Appeal’s decision in
New Zealand Defence Force v Berryman.12 But equally, as Darker itself
demonstrates, there have been misfeasance cases where the immunity has been found not to apply, due to the nature of the conduct in respect of which immunity is sought.
[25] Next, it seems indisputable that Darker is the leading modern authority on the scope of witness immunity.13 The House of Lords was unanimous in concluding that an action for conspiracy to injure and misfeasance in public office based on allegations that the police had fabricated evidence against the claimants did not attract the absolute immunity. But, as Lord Justice Lloyd Jones recently noted in Chief Constable of South Wales Police v Daniels, in reaching that unanimous
conclusion, different views were expressed in the five speeches in the House of Lords as to the scope of the immunity.14 So its application to other cases is not without difficulty.
[26] Of some particular relevance here is the fact that the question raised by Lord Collins in Jones about whether the immunity should apply at all in a misfeasance case echoed part of Lord Hutton’s speech in Darker. His Lordship noted the question whether the immunity should apply to protect Police Officers from misfeasance claims had previously been raised by Sir Richard Scott VC in
Bennett v Commissioner of Police for the Metropolis when he said:15
12 New Zealand Defence Force v Berryman [2008] NZCA 392.
13 Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (HL).
14 Chief Constable of South Wales Police v Daniels [2015] EWCA Civ 680 at [35].
15 Bennett v Commissioner of Police for the Metropolis (1997) 10 Admin LR 245 at 254 (emphasis added).
To argue that because for public policy reasons a blanket immunity from action is given in respect of evidence in court proceedings and because for public policy reasons the police and the CPS are relieved of a general duty of care to those who may be affected by the manner in which they discharge their duties it should therefore follow that the police and the CPS are entitled to a blanket immunity from suit arising out of the manner in which they discharge their duties is not, to my mind, respectable jurisprudence. On the contrary, it is clear law that neither the police nor the CPS are entitled to a blanket immunity against tort actions arising out of the manner in which they discharge their duties. Actions for malicious arrest or immunity can be brought. Actions against the police for assault, in using excessive force in effecting an arrest or in interrogating a suspect, can be brought. Why should an action for misfeasance in public office not be brought? I can see no reason why not. The police and the CPS, like everyone else, are subject in the discharge of their duties to the rule of law. There is no public interest that requires them to be afforded immunity against actions based on malicious or knowing abuses of their powers.
[27] Lord Hutton himself concluded:16
Therefore there is no general principle that in order to prevent honest police officers from being vexed and harassed by unfounded actions brought by hostile persons whom they have arrested, they should be given absolute immunity in respect of their actions in carrying out their duties, and that in order to protect the many honest police officers from the vexation of rebutting unfounded allegations the immunity should also extend to protect the few dishonest police officers.
[28] It is therefore unsurprising that the Court of Appeal’s decisions in both EBR and Berryman make it plain that courts should be cautious before using an assertion of witness immunity as a basis for summarily disposing of claims.17 The Court made it clear that claims of immunity were not clear-cut or binary in nature and, often, the relevant inquiry will be fact dependent. Similar concerns led the Court to reverse a strike out which had been granted by the High Court on the grounds of witness immunity in Currie v Clayton.18 And as the Court of Appeal noted in EBR, Lord Browne-Wilkinson’s view in X (Minors) v Bedfordshire County Council,19 that cases which involve developing areas of law should be considered on the basis of actual,
rather than hypothetical, facts, seems particularly apt.20
16 Darker, above n 13, at 470.
17 See Berryman, above n 12, at [68] and EBR, above n 6, at [36].
18 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195.
19 X (Minors) v Bedfordshire County Council [1995] 2 AC 633 (HL) at 741.
20 EBR, above n 6, at [39].
[29] Even if it could be said that the law is clear that Police officers are immune from claims of misfeasance in relation to allegedly false evidence they give in Court (and the comments of Lord Hutton and Lord Collins would seem to call that into doubt) there is a danger in assuming that such immunity should be extended to probation officers merely by analogy. In Mann v O'Neill McHugh J warned
against:21
…the temptation to recognise the availability of the defence for new factual circumstances simply because they are closely analogous to an existing category (or cases within the existing category) without examining the case for recognition in light of the underlying rationale for the defence.
[30] And in the judgment of Brennan CJ, Dawson, Toohey and Gaudron JJ given in the same case, their Honours said:22
… the general rule is that the extension of absolute privilege is ‘viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’.
[31] Accordingly it is necessary to consider carefully the particulars of the present case in order to determine whether it is one in which the existence of an immunity is sufficiently clear-cut to justify a strike out. And in doing so it needs to be remembered that the effect of a successful plea of immunity is to deny access to the courts and, in many cases, to leave a wrong without a remedy.
[32] In Jones v Kaney Lord Phillips summarised the justifications as follows:23
(a) To protect witnesses who have given evidence in good faith from being harassed and vexed by unjustified claims;
(b) To encourage honest and well meaning persons to assist justice, in the interest of establishing the truth and to secure that justice may be done;
(c) To secure that the witness will speak freely and fearlessly; and
(d) To avoid a multiplicity of actions in which the value or truth of the evidence of a witness would be tried all over again.
21 Mann v O'Neill [1997] HCA 28, (1997) 191 CLR 204 at 221.
22 At 213 (footnote omitted).
23 Jones v Kaney, above n 9 at [16]–[17].
[33] I accept that the third of these matters arguably favours the extension of the immunity to probation officers who prepare reports to assist the Court for sentencing purposes. That said, however, a probation officer is different from an ordinary witness, whose compulsion to give evidence arises not from the nature of their occupation but by dint of circumstance. Although I do not intend to express a final view on the matter there may, as Mr Minchin submitted, be some parallels to be drawn between the provision and contents of a PAC report and expert evidence, in relation to which (as Jones has now established) no immunity attaches.
[34] As well, other of the four justifications speak against the conferral of a blanket immunity devoid of established facts or wider context. The first and second points suggest that the immunity might or should be defeated by bad faith or malice (as Lords Hutton and Collins have suggested), which is what is alleged here. And to the extent that the fourth point is concerned with the need for finality and the desirability of avoiding collateral attacks on already decided cases, Mr Hunter is not in this case seeking to relitigate his sentencing. Indeed, and subject only to the matters later raised in his sentencing appeal, his position was that he wished to be sentenced to home detention, as indeed he was. And in any event he has, presumably, long since completed his sentence.
[35] In my view, therefore, it is clear neither from the recently decided cases nor from an application of the underlying policy that the first and second defendants must enjoy immunity from a misfeasance claim. While that view does not preclude a subsequent finding of immunity at trial it does mean that I consider the Associate Judge was wrong to strike out the misfeasance claims.
Negligence
[36] Although not of all of the matters just mentioned would militate as strongly against the application of the immunity in relation to the negligence claim, I consider that the existence of a complete protection from such a claim is also not clear cut. And in that respect I note the approach of the English Court of Appeal in Smart v the Forensic Science Service Ltd where, having found that there was a tenable argument
that the immunity did not apply in relation to a claim for deceit, the Court declined to strike out the alternative claim for negligence.24
[37] Moreover, for reasons similar to those given in [34] above, I am not persuaded that the statutory scheme necessarily cuts across the existence of a duty of care. In particular, Mr Hunter’s ability under s 28(3) of the SA to contest the content of the PAC Reports at his sentencing cannot be a complete answer to the alleged duty. If he establishes what he has pleaded, the exercise of his s 28(3) right would not have prevented him from suffering the losses claimed. There is logic in the proposition that he was effectively required to find an alternative home detention address regardless of his intention to stand on his s 28(3) right. There was a real risk involved in simply relied on his ability to contest the content of the reports at sentencing. Had such a challenge been unsuccessful then he was very clearly facing a sentence of imprisonment had he not found already taken steps to find an alternative address.
[38] For these reasons I consider that the negligence claims, too, should be reinstated.
The position of the third defendant
[39] Lastly, and as far as the claim against the third defendant is concerned I accept Mr Barr’s submission that the Chief Executive is not vicariously liable for the actions of Probation Officers. The only party who can be vicariously liable for their actions is the Attorney-General, on behalf of the Crown, and only to the extent allowed by, and subject to the conditions expressed in s 6 of the Crown Proceedings Act 1950, s 6. Thus to the extent that the first and second defendants are immune from suit or do not owe a duty of care to Mr Hunter then so too would the Attorney-General be protected. But given my conclusion that the claims against the first and second defendants should not be struck out it follows that the
Attorney-General should be substituted as the third defendant.
24 Smart v the Forensic Science Service Ltd [2013] EWCA Civ 783.
Conclusion
[40] For the reasons I have given I am unable to agree with the Associate Judge that Mr Hunter’s claims would inevitably be defeated by witness immunity or that his assertion of a duty of care is wholly untenable. While I do not by any means say that such immunity would not apply, or that a duty is clearly owed, the issues are, in my view, arguable and need to be explored in their specific factual context, at trial.
[41] Accordingly:
(a) leave to appeal out of time is granted;
(b)Mr Hunter’s appeal succeeds and his claim in its entirety is reinstated, save insofar as the Chief Executive should be removed as the third defendant and the Attorney-General substituted; and
(c) Mr Hunter is entitled to costs on a 2B basis.
Rebecca Ellis J
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