Kearns v Milner
[2014] NZHC 2752
•5 November 2014
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV 2013-409-001757 [2014] NZHC 2752
BETWEEN ADAM FRANCIS MURRAY KEARNS
Plaintiff
AND
HELEN ELIZABETH MILNER Defendant
Hearing: 5 November 2014 Counsel:
K H Cook for Plaintiff
No appearance for defendantJudgment:
5 November 2014
JUDGMENT OF WHATA J
[1] Mr Kearns commenced proceedings against his mother, Ms Milner, alleging that she had instigated a malicious prosecution against him. Ms Milner has not taken a step in the proceeding and accordingly this matter comes before me for formal proof.
Background
[2] The essential facts are essayed in the affidavit of the plaintiff, Adam Francis Murray Kearns. He says that he was in a relationship with Kasey Woodstock. The relationship ended badly and Kasey and his mother, Helen, obtained a protection order against him. On 10 April 2010 he was questioned by police about alleged breaches of the protection order. It was alleged that he had sent abusive text messages to Kasey and to Helen. He was arrested and charged with two breaches of a protection order. He was declined police bail and was kept in custody until he appeared in the District Court two days later. His application for bail was unsuccessful and he was remanded in custody in the Christchurch Men’s Prison at
Paparoa.
KEARNS v MILNER [2014] NZHC 2752 [5 November 2014]
[3] The matter came up for hearing on 19 April 2010. He indicated that he was innocent of the charges and he said that the text messages were a set up and not sent by him. He was then told about four days prior to the matter finally being called that Helen had sent the text messages and he was ultimately released on 27 April 2010.
[4] Mr Kearns describes how he was threatened in prison, that he missed a family group conference concerning his son and his feeling of humiliation at being in jail and having to protest as to his innocence. He also lost his job. He was earning about $17.50 an hour at the time. He had to sell his car to pay his rent. He says he sold the car for $2,500 but it was worth about $7,500.
[5] He also notes that Ms Milner pleaded guilty to the charge of attempting to pervert the course of justice.
[6] Furthermore, there is ample evidence that Ms Milner set out to procure the prosecution.
[7] For example, Ms Milner in her witness statement to the police observed:
He would have got my new cellphone number off the cellphone he stole off
Kasey. Adam had been charged with stealing Kasey’s cellphone.
The first text was abusing me as a mother because I spent money on my grandson and not on him.
The second text was him claiming I killed my late husband and hoping that the police was giving me a hard time. And my new partner should watch his back.
Both of these texts are saved on my cellphone that you are examining now.
… He hasn’t breached his protection order against me in any other way,
except for these two texts.
I have made a number of complaints against my son Adam, including theft and fraud matters.
He’s extremely aggressive. He won’t stop until he’s killed or seriously harmed someone. He will go out of the way to hurt me and others, including financially.
[8] There is then a record of the alleged victim’s views (including Ms Milner’s
on bail). That records the following:
Both victims in this matter are opposed to bail being granted as they believe that Kearns will continue to breach both protection orders and feel that there may be retaliation for the complaints they have made against the defendant.
The second victim for this matter (Milner) is the defendant’s mother and she believes that the defendant will continue to offend “until he’s killed or has seriously harmed someone”. Milner fears for her safety and also for the safety of Woodstock.
[9] There is then the further evidence that Ms Milner encouraged the other alleged victim to complain to the police. Ms Woodstock gave a statement which records the following:1
I rung Helen Milner and told her that I received these text messages. She told me to ring the police. This is the reason why I rang the police that night.
The pleadings
[10] Mr Kearns alleges that the defendant, Ms Helen Milner, had no reasonable probable cause for the complaint she encouraged Kasey to make to the police about the plaintiff, that she acted maliciously in making the complaint and that she acted maliciously in encouraging Kasey to make the complaint to the police. It is further alleged that the plaintiff suffered damage as a consequence of being charged by the police because:
(a) He was incarcerated for 17 days; (b) He suffered humiliation;
(c) He suffered stress;
(d) He suffered financial loss.
[11] He therefore makes a claim for general and exemplary damages in the sum of
$60,000 or such other sum as the Court thinks fit. He also seeks indemnity costs.
1 Note: This was a statement made on 24 May 2010 after it had been discovered that Ms Milner had fabricated the text.
Assessment
Liability
[12] Mr Cook appeared on behalf of the plaintiff. He submitted, and I agree, that there are five elements for an action of malicious prosecution:2
(a) the defendant prosecuted the plaintiff on a criminal charge;
(b)the criminal proceedings terminated without the plaintiff being incriminated;
(c) the defendant had no reasonable and probable cause for bringing the proceedings;
(d) the defendant acted maliciously; and
(e) the plaintiff suffered damage as a consequence of the proceeding.
[13] I am satisfied that each of these elements is plainly established. The facts speak for themselves. Indeed it is difficult to conceive of a more obvious case of intentional procurement of a criminal prosecution resulting in the arrest, the laying of the charge, the incarceration and then the prosecution of an innocent defendant.
[14] Mr Cook has carefully identified arguable issues for my consideration. I touch upon them briefly here only to illustrate that the proper grounds have been covered.
[15] First, I accept Mr Cook’s basic contention that there was a prosecution
against the plaintiff even though it did not reach the trial stage.
[16] Second, I also accept Mr Cook’s submission that the defendant was
responsible for the prosecution in the sense that there was no other basis for the prosecution other than the false texts generated by Ms Milner. In summary,
2 Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington,
2013) at [18.2.02]. See also Caie v Attorney General [2005] NZAR 703 (HC).
Ms Milner was instrumental in putting the police in possession of false information leading to his charge and incarceration. She produced the false texts and she actively encouraged Ms Woodstock to lay a complaint. Inevitably the police acted on this information. She should be deemed therefore to have prosecuted the plaintiff (albeit that the prosecution was commenced by the police).3 In this regard I adopt the
following reasoning of Lord Keith of Kinkel in Martin v Watson4 (cited by
Mr Cook):5
The circumstance that a defendant in an action of malicious prosecution was not technically the prosecutor should not enable him to escape liability where he was in substance the person responsible for the prosecution having been brought.
[17] As to the remaining issues identified by Mr Cook:
(a) The proceedings were terminated without Mr Kearns being incriminated.
(b)Ms Milner had no reasonable or probable cause for bringing the proceedings. In fact she admitted that she perverted the course of justice by sending the text messages and making a false statement.
(c) Ms Milner, having admitted sending the texts intended in a subjective sense to maliciously bring about the prosecution.
(d)I also consider that Ms Milner acted maliciously in the objective sense that she plainly had no proper motive for instigating the prosecution and must have lacked a genuine belief in the accusation. To put it colloquially – she intentionally framed Mr Kearns.
Quantum
[18] The remaining and key issue is whether or not Mr Kearns suffered damage and to what extent.
3 Commercial Union Assurance Co of New Zealand Ltd v Lamont [1989] 3 NZLR 187 (CA) at
196.
4 Martin v Watson [1996] AC 74 (HL).
5 At 86.
[19] I have canvassed a number of authorities.6 Awards are fact specific but they range from $5,000 for short periods of false imprisonment to $60,000 for lengthy detention. Many of the cases are coloured by the fact of police involvement. Balanced against that, several of them do not manifest the bad faith aspect of this case.
[20] I have also taken some guidance from Thompson v Commissioner of Police for the Metropolis.7 In that case T was lawfully arrested by the police but the police used unnecessary force, including physical abuse, to place her in a cell. False evidence was given against her at trial by the police and she was deprived of her liberty during the criminal trial. The Court of Appeal upheld an award totalling
£51,500.
[21] The Court in that case also provided guidance as to the award of compensatory and exemplary damages in this context. The Court observed (in
summary):
6 Slater v Attorney General (No 2) [2007] NZAR 47 (HC) ($5,000 compensatory damages award where S assaulted, restrained and handcuffed and held by police for seven and a half hours, but released without charge); Caie v Attorney-General [2006] NZAR 379 (CA) ($10,000 award upheld on appeal for wrongful detention lasting 20 hours where C unsuccessful in making out malicious prosecution); Neilsen v Attorney-General [2001] 3 NZLR 433 (CA) ($5,000 award for detention of one and a half hours); Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) ($18,000 and $16,000 awards for being handcuffed, searched and detained for 15 minutes); Attorney-General v Hewitt [2000] 2 NZLR 110 (HC) ($5,000 compensatory damages approved on appeal where findings of wrongful arrest and false imprisonment for a period of 7½ hours were upheld. The Court opined however that they would not have awarded exemplary damages); Manga v Attorney-General [2000] 2 NZLR 65 (HC) ($60,000 award for detention lasting 252 days longer than required); Taylor v Attorney-General HC Hamilton CP21/94, 28
August 1998 (award of $25,000 for malicious prosecution and $4,000 for false imprisonment where employee of defendant lodged false fraud complaint through her police officer husband); Niao v Attorney-General (1998) 5 HRNZ 269 (HC) ($17,500 general damages and $1,950 special damages awards for unlawful detention by police for 90 minutes where plaintiff suffered stress and humiliation and police conduct was reprehensible); Upton v Green (1996) 3 HRNZ
179 (HC) ($15,000 award for over three months imprisonment where sentence was imposed without opportunity to be heard); Thompson v Attorney-General [1994] DCR 448 ($5,000
compensatory damages award for unlawful arrest and detention for two to three hours, where police persevered in the charge but the plaintiff was partially responsible); Attorney-General v Niania [1994] 3 NZLR 106 (HC) ($5,000 compensatory damages for unlawful arrest and detention by police lasting five to six hours); Hayward v O’Keefe [1993] 1 NZLR 181 (HC)
(award of $7,500 exemplary damages for unlawful arrest and detention where plaintiff was
handcuffed and walked past onlookers despite no evidence of resistance to arrest); Duffy v Attorney-General HC Wellington A352/82. 3 February 1986 (indication of a $5,000 - $15,000 compensatory damages award, with a maximum of $5,000 for exemplary damages, for unlawful arrest and detention lasting two and a half hours, where D suffered abuse by other detainees).
7 Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762.
(a) Save in exceptional circumstances, damages are only awarded as compensation and are intended to compensate the plaintiff for any injury or damage which he has suffered. They are not intended to punish the defendant.
(b)There are two types of compensatory damages, ordinary damages and aggravated damages. Aggravated damages are awarded where there are aggravating features about the defendant’s conduct which justify an award of aggravated damages.
(c) Ordinary damages will depend on the circumstances and the degree of harm suffered by the plaintiff.
(d)In a straightforward case of wrongful arrest and imprisonment, the starting point is likely to be about £500 (say NZ$800) for the first hour. After the first hour, an additional sum is to be awarded, but that sum should be on a reducing scale. A plaintiff who has been deprived of his or her liberty for 24 hours should normally be regarded as entitled to an award of £3,000 (say NZ$5,000). For subsequent days the daily rate will be on a progressively reducing scale.
(e) In a case of malicious prosecution the figure should start at about
£2,000 and for a prosecution continuing for as long as two years, the case being taken to the Crown Court an award of £10,000 would be appropriate.
(f) Where it is appropriate to award aggravated damages the figure is likely to be less than £1,000. But the Court noted that it is not possible to indicate a precise arithmetical relationship between basic damages and aggravated damages because the circumstances will vary from case to case.
(g)The total figure for basic and aggravated damages should not exceed what is considered fair for the injury which the plaintiff has suffered.
(h)Where exemplary damages are claimed this combination should be awarded only if the compensation awarded by the basic and aggravated damages is in the circumstances inadequate punishment for the defendant and to mark the Court’s disapproval of particularly oppressive or arbitrary behaviour.
[22] Notably, Fisher J referring to Thompson, and a number of New Zealand cases, concluded that in Caie v Attorney-General that:8
They tend to suggest that in [a] case where there are no special factors in aggravation or mitigation, damages for a false imprisonment lasting 20 hours could well be in the region of $10,000 plus any sum due for exemplary damages.
[23] By reference to these authorities, and given the lengthy period of Mr Kearn’s incarceration, I make an award of $45,000 for compensatory damages (including for his financial loss) and $10,000 for exemplary damages as justified for the malicious prosecution. In this latter regard, I consider that Ms Milner’s conduct was outrageous – it was calculated conduct designed to procure her son’s prosecution.
[24] For completeness, it needs to be observed that several of the cases in which relatively or proportionately higher awards have been made involve a combination of police conduct, bad faith and false imprisonment per se. Those cases involve public interest considerations that in my view call for greater scrutiny and response, including to secure protection from abuse of police power. Conversely there are cases of much smaller awards where the bad faith aspect is absent. Care should be taken then in applying the award that I have made to cases that do not possess this feature.
Outcome
[25] Mr Kearns is entitled to:
(a) $45,000 in general damages; and
(b) $10,000 in exemplary damages.
8 Caie v Attorney-General, above n 2.
Costs
[26] Mr Kearns is entitled to costs on a 2B basis and disbursements as fixed by the
Registrar.
Solicitors:
K H Cook, Christchurch
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