Hunter v Neville - [2017] NZHC 1477

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 Defendants

Judgment:

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…

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 Hunter v Neville

Details

AGLC: Hunter v Neville [2017] NZHC 1477
Case: [2017] NZHC 1477
Decision Date: 29 June 2017

CaseChat Overview and Summary

Brian Hunter is the plaintiff in these proceedings and has brought a claim against Julanne Denise Neville and Jodi Marie Jeffrey, both of whom are probation officers, and the Chief Executive of the Department of Corrections. The plaintiff alleges that the defendants are liable for damages for misfeasance in public office and/or negligence in relation to the preparation of reports for sentencing purposes. The plaintiff claims that the defendants prepared false reports in relation to the suitability of his address for electronically monitored (EM) home detention. The defendants deny the plaintiff's claims and have applied to have them struck out on the basis that they are protected by witness immunity and/or that they do not owe a duty of care to the plaintiff. The plaintiff has appealed against the Associate Judge's decision to strike out his claims. The court has found that the plaintiff's appeal should be allowed, and his claims reinstated. The court held that the defendants were not necessarily protected by witness immunity, and that the plaintiff could conceivably owe a duty of care to them. The court also held that the Chief Executive of the Department of Corrections is not vicariously liable for the actions of the defendants, and that the Attorney-General should be substituted as the third defendant.

Orders