King v Attorney-General
[2017] NZHC 1696
•21 July 2017
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IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CIV-2016-441-69 [2017] NZHC 1696
BETWEEN ZION HIONA KING
Plaintiff
AND
THE ATTORNEY-GENERAL Defendant
Hearing: 2 December 2016 Appearances:
R Fairbrother QC and G Fairbrother for the plaintiff
A M Powell and A L Dixon for the defendantJudgment:
21 July 2017
JUDGMENT OF ASSOCIATE JUDGE SMITH
CONTENTS
Background........................................................................................................................................... 2
Mr King’s statement of claim ............................................................................................................ 15
The strike-out application and the notice of opposition.................................................................. 24
Principles applicable to strike-out applications ............................................................................... 26
The issue to be decided ...................................................................................................................... 28
Counsel’s submissions ........................................................................................................................ 29
The Attorney-General ...................................................................................................................... 29
Mr King ........................................................................................................................................... 34
The Attorney-General in reply ......................................................................................................... 51
Discussion and conclusions ................................................................................................................ 54
The cases ......................................................................................................................................... 54
The Compensation Scheme .............................................................................................................. 74
Application of the law in this case ................................................................................................... 77
Did the police owe a duty of care up to the point Mr King was charged? ...................................... 79
Did the police owe a duty of care after Mr King was charged? .................................................... 102
Result ................................................................................................................................................. 140
KING v THE ATTORNEY-GENERAL [2017] NZHC 1696 [21 July 2017]
Introduction
[1] The defendant (the Attorney-General) applies to strike out Mr King’s
statement of claim.
Background
[2] The following is taken from Mr King’s statement of claim.
[3] In early 2008 the police in Napier were investigating the homicide of Mr King’s neighbour, Ms Maihi-Carroll, whose body had been discovered at her home on Monday 21 January 2008. Ms Maihi-Carroll and Mr King both lived in the same rental unit complex in Napier.
[4] Suspicion fell upon Mr King when interviews with his co-workers suggested that he had disclosed details of the killing at a time when that information had not been publically released. Mr King was interviewed by police and maintained his innocence.
[5] On 26 March 2008 Mr King was charged with Ms Maihi-Carroll’s murder.
[6] At the time of his arrest, Mr King was on parole, having been earlier released from prison. As a result of being charged with the murder while on parole he was recalled to prison, where he remained for 16 months serving out the balance of his sentence for the earlier offending.
[7] A depositions hearing was conducted in the District Court at Napier in October 2008, presided over by Justices of the Peace. Mr King was committed for trial on the murder charge.
[8] On 1 April 2009 Mr King filed an application for discharge under s 347 of the
Crimes Act 1961. That application was unsuccessful.
[9] The case proceeded to trial, but there was a mistrial. A second trial was scheduled for 8 February 2010.
[10] On the Sunday before the first day of the second trial, the Crown’s solicitor contacted Mr King’s counsel and advised that the evidence of Mr King’s co-workers was now considered unreliable. The Crown solicitor suggested that Mr King make another application for discharge under s 347 at the commencement of the trial.
[11] Mr King duly made that application, and it was not opposed. An order for discharge was granted by Clifford J on 8 February 2010.1 At that point, the criminal proceeding against Mr King came to an end.
[12] Mr King says that he is entirely innocent of the murder charge, and that he suffered significant loss as a result of the charge brought against him. After being recalled to prison to serve the remaining 16 months of the sentence on which he had been paroled, he was on bail subject to very stringent conditions for seven months until the second scheduled trial in February 2010. In addition, he says he lost his job, and consequently lost income. He could not make hire purchase payments on his car which had been repossessed. He says that he suffered psychological harm, excessive worry and shame from being wrongfully accused of murder, and consequent damage to his reputation which affected his ability to live and work in the Napier community.
Mr King’s application for compensation
[13] Following his discharge, Mr King applied to the Crown for an ex gratia payment of compensation, in reliance on the scheme established by Cabinet in 1998 for the compensation of persons who have been wrongly convicted and imprisoned (the Compensation Scheme).2 By letter dated 24 April 2012 from the Minister of Justice, the application was refused. The Minister noted that to be eligible for compensation under the Guidelines issued by Cabinet for the operation of the
Compensation Scheme, a person must have:
(a) served all or part of a sentence of imprisonment; and
1 R v King HC Napier CRI-2008-041-1027, 8 February 2010 (minute of Clifford J, s 347 application).
2 Ministry of Justice Compensating for wrongful conviction and imprisonment (May 2015)
< had his or her conviction quashed on appeal … without a retrial
being ordered, or received a free pardon.
[14] The Minister referred to advice given to counsel then acting for Mr King by the Ministry’s Acting Chief Legal Counsel, that Mr King’s application fell outside the scope of the Compensation Scheme, because he had not been convicted or sentenced to imprisonment for the offence for which he had been charged. The Minister noted that Cabinet had made a deliberate decision, on the advice of the Law Commission in its report Compensating the Wrongly Convicted, not to include
within the Compensation Scheme persons deprived of liberty prior to conviction.3
The Minister noted that, in adopting the Guidelines, Cabinet did reserve a discretion to consider claims for compensation for wrongful conviction and imprisonment falling outside the Guidelines (in extraordinary circumstances, and where it was in the interests of justice to do so). However, there was no “recognised practice” of paying compensation to an accused person, such as Mr King, for time spent in custody simply as a result of being charged with an offence.
Mr King’s statement of claim
[15] Mr King filed his proceeding against the Attorney-General, representing the New Zealand Police, on 9 June 2016. In his claim, Mr King says that at the time the police exercised their discretion to prosecute him for the murder, they did not have a prima facie case against him. He provides the following particulars of that allegation:
(1) The main factor relied upon by the Police was an allegation by [a co-worker of Mr King at Hatuma Foods] who told the Police that Mr King had told her about the murder at work early on the morning of Monday 21 January 2008;
(2) The Police concluded that Mr King must have left home to work his shift before Ms Maihi-Carroll’s body was discovered, and therefore could only have told his co-worker if he had committed the murder before leaving for work;
(3) When asked by the Police Mr King told them that he had told his co-workers about the murder when he returned to work on
3 Law Commission Compensating the Wrongly Convicted (NZLC R49, 1998). See in particular [80]–[82] and [94]–[97] outlining the Law Commission’s reasons for excluding the wrongly prosecuted.
Monday night but that he found out about the murder after returning home following his previous shift which had finished on Monday morning;
(4) The Police knew or ought to have known that [the evidence of the co-worker referred to in subpara (1) above] was unreliable from the outset because she:
(a) and her co-workers were not spoken to by the Police until approximately six weeks after the murder;
(b) stated that Mr King changed into overalls at 6am on Monday morning 21 January 2008, but that the overalls which she identified were not available then to Mr King or any other Hatuma Foods’ worker;
(c) said that Mr King had a bandaged hand, when:
(i) CCTV footage of Mr King taken at a petrol station which he called into on his way to work on Monday morning 21 January 2008 categorically showed that he did not have such a bandage;
(ii) another co-worker, … confirmed that there was no
bandage;
(iii) Mr King allowed the Police to examine his hands on Monday 21 January 2008, and they found no evidence of any injury;
(d) told the Police that Mr King had left the factory early on Monday morning 21 January 2008, but this was categorically refuted by a tradesperson who worked at the Hatuma Foods factory that morning and was reliant on Mr King’s assistance;
(5) The Police carried out a thorough forensic examination of Mr King’s person, his home and his car and found no incriminating evidence which could link Mr King to the murder;
(6) The Police carried out a thorough forensic examination of Ms Maihi-Carrolls’s body and her home and found no incriminating evidence to link Mr King to the murder.
(7) The Police conducted video interviews with Mr King in which they received his full cooperation, and in which he consistently protested his innocence, and denied any involvement whatsoever in the murder;
(8) The Police used a bugging device, and used [the co-worker referred to in subpara (1) above] as an agent provocateur, but Mr King’s responses only reinforced his innocence.
[16] Mr King asserts that the police could have and should have closely scrutinised the evidence of the co-worker who was the principal witness against him at the outset, just as the Crown solicitor did before the second trial.
[17] Mr King also criticises the DNA evidence given at the depositions hearing by an ESR scientist. While there was no DNA evidence linking Mr King to the crime scene, there was blood, semen, or DNA found at the scene which was linked to three other men. The DNA included samples obtained from the areas of Ms Maihi- Carroll’s face which had received blows during the murder. Mr King says that these DNA samples could only have come from the person who struck Ms Maihi-Carroll, and that person, not Mr King, would have been the murderer.
[18] At the depositions hearing, the ESR scientist gave evidence that a DNA experiment she had conducted had excluded Mr N (a person known to Ms Maihi- Carroll, and a possible suspect for the murder). However the scientist failed to state that the DNA experiment had also excluded Mr King as the source of the DNA. Mr King says that the scientist knew or ought to have known that, following the violent circumstances of the murder, the absence of any DNA evidence (at the scene, on Mr King’s person, or at his home) linking him to the murder strongly tended to exculpate him.
[19] Mr King says that, in response to his first s 347 application, the police and the prosecution continued to rely on the evidence of the ESR scientist. The Crown solicitor is said to have submitted at the hearing of this application that “there is no DNA evidence to include or exclude this accused. There is DNA evidence which tends to exclude Mr N”. Mr King says that the submission did reflect the ESR scientist’s evidence, but it was wrong as the same DNA evidence favoured Mr King to the same extent or more than it favoured Mr N.
[20] In June 2009, the Crown served a second brief of evidence from the scientist, in which she conceded that she had also carried out the exclusionary DNA test on a sample of Mr King’s DNA, and that he also was excluded by the test. Despite this, the police continued with the prosecution of Mr King, and it was not until the eve of the second trial in February 2010 that the evidence was apparently reassessed and the
Crown solicitor concluded that a second application by Mr King for a discharge should not be opposed.
[21] Mr King pleads just one cause of action: negligent investigation. He says that the police owed him a duty to exercise the reasonable standard of skill and care normally expected of a prudent police officer in his or her investigation of a murder, and that in breach of that duty the police accused him of the murder and charged him when they did not have a reliable case against him. He relies on the particulars set out at [15] above.
[22] Mr King claims general, exemplary, and aggravated damages in the respective sums of $500,000, $50,000 and $50,000. He also claims special damages, in an amount to be particularised before trial, interest and costs.
[23] In support of his claims for exemplary and/or aggravated damages, Mr King pleads that the police displayed a high-handed and contumelious disregard for his rights and welfare, and deliberately failed to properly inform the court of the fact that the DNA evidence excluded Mr King (as well as Mr N).
The strike-out application and the notice of opposition
[24] The Attorney-General contends that even if the facts as alleged by Mr King were found to be true, no duty of care is owed by a constable conducting a criminal investigation, and no action can therefore lie against the Crown under s 6(1) of the Crown Proceedings Act 1950.
[25] In his notice of opposition, Mr King contends that there is an arguable cause of action against the Attorney-General. He says the Compensation Scheme does not apply to him, because no conviction was ever entered against him. He contends that in those circumstances he cannot be barred from making a claim for negligent investigation. He acknowledges, however, that a claim against the police for
negligently investigating a crime is novel in New Zealand law.4
4 The notice of opposition referred to two other causes of action, in addition to negligent investigation. They were misfeasance in public office and “targeted malice towards the plaintiff in the course of a criminal investigation”. However the statement of claim does not in fact plead
Principles applicable to strike-out applications
[26] Rule 15.1 of the High Court provides:
Dismissing or staying all or part of proceeding
(1) The court may strike out all or part of a pleading if it—
(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or
(b) is likely to cause prejudice or delay; or
(c) is frivolous or vexatious; or
(d) is otherwise an abuse of the process of the court.
(2) If the court strikes out a statement of claim or a counterclaim under subclause (1), it may by the same or a subsequent order dismiss the proceeding or the counterclaim.
(3) Instead of striking out all or part of a pleading under subclause (1), the court may stay all or part of the proceeding on such conditions as are considered just.
(4) This rule does not affect the Court’s inherent jurisdiction.
[27] Counsel agree that the correct approach to applications under r 15.1 where the ground for the application is the absence of a reasonably arguable cause of action is set out accurately in the commentary to r 15.1 in McGechan on Procedure, as follows:
The jurisdiction under r 15.1
The established criteria for striking out was summarised by the Court of Appeal in A-G v Prince [1998] 1 NZLR 262, (1997) 16 FRNZ 258, [1998] NZFLR 145 (CA) at 267, and endorsed by the Supreme Court in Couch v A-G [2008] NZSC 45 at [33], per Elias CJ and Anderson J:
(a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation.
(b) The cause of action or defence must be clearly untenable. In Couch Elias CJ and Anderson J, at [33], said: “It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed”.
those other causes of action, and neither counsel referred to them at the hearing.
(c) The jurisdiction is to be exercised sparingly, and only in clear cases.
This reflects the Court’s reluctance to terminate a claim or defence
short of trial.
(d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument.
(e) The Court should be particularly slow to strike out a claim in any developing area of the law, perhaps particularly where a duty of care is alleged in a new situation. In Couch, at [33], Elias CJ and Anderson J said: “Particular care is required in areas where the law is confused or developing.” There is considerable authority that developments in negligence need to be based on proved rather than hypothetical facts.
The issue to be decided
[28] The single issue is whether, assuming the facts set out in Mr King’s statement of claim are capable of proof at trial, his cause of action based on negligent investigation is clearly untenable.
Counsel’s submissions
The Attorney-General
[29] Mr Powell submits that the first question to be asked is whether the case is covered by existing case law. If it is, the court need not be concerned with the tests applicable to the question of whether a novel duty of care should be recognised. He accepts that if the duty of care is not settled in the way for which he contends, the court should not strike out Mr King’s claim.
[30] In Mr Powell’s submission this is not a novel duty of care case. The proposition that a police officer may owe a duty of care to persons affected by the manner in which the officer exercises constabulary power has been considered frequently in the Commonwealth, and while there is a divergence between the laws of Canada on the one hand, and New Zealand and the United Kingdom on the other, the law applying in this court is clear — no duty of the kind alleged is owed.
[31] Mr Powell relies particularly on the Court of Appeal decisions in Mortensen v Laing5 and Simpson v Attorney-General (Baigent’s case).6 He also refers in support to a number of decisions of the House of Lords and the Supreme Court in the United Kingdom, including Hill v Chief Constable of West Yorshire,7 Calveley v Chief Constable of the Merseyside Police,8 and Michael v Chief Constable of South Wales Police.9 He also submits that the learned authors of The Law of Torts in New Zealand generally support the view that no duty of care in tort should be recognised in cases involving the initiation of prosecutions.10
[32] Mr Powell acknowledges that the Supreme Court of Canada has taken a different approach, upholding the duty of care for which Mr King now contends.11
However in his submission the Canadian decision is inconsistent with the New Zealand Court of Appeal decisions in Mortensen v Laing and Baigent’s case, which are binding on this court.
[33] Mr Powell questions why, if a duty to the suspect were recognised, there would not also be a duty to the victim of the crime. Yet if such a duty were recognised the two duties would be impossible to reconcile.
Mr King
[34] Mr Fairbrother submits that the moral question posed by Mr King’s claim is whether a person who is deprived of his or her liberty for a lengthy period by the state should be treated equally with others similarly deprived, and similarly innocent of the allegation. He submits that, on the particular facts of this case, a duty of care can be identified in a way that will not lead to a proliferation of cases or unduly
fetter the operations of the New Zealand Police.
5 South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd; Mortensen v Laing [1992] 2 NZLR 282 (CA).
6 Simpson v Attorney-General [Baigent’s case] [1994] 3 NZLR 667 (CA).
7 Hill v Chief Constable West Yorkshire [1989] 1 AC 53 (HL).
8 Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 (HL).
9 Michael v Chief Constable of South Wales Police (Refuge and Liberty intervening) [2015] UKSC 2, [2015] AC 1732, [2015] 2 All ER 635.
10 Stephen Todd (ed) The Law of Torts in New Zealand (7th ed, Thomson Reuters, Wellington,
2016).
11 Hill v Hamilton-Wentworth Regional Policy Services Board [2007] 3 SCR 129.
[35] The negligence relied upon is negligence in the police investigation, both before and during the period of deprivation of liberty, as opposed to general investigative enquiries. Identification of Mr King as a suspect on 11 March 2008, his arrest on 26 March 2008, and his continued detention until 8 February 2010, create proximity, foreseeability, and a duty of care.
[36] Mr Fairbrother identifies the elements of the proposed tort of negligent investigation as follows:
(1) the plaintiff was particularised as the offender and arrested and charged, and
(2) the plaintiff [was] discharged by a Judge, and
(3) innocence of the charge, and
(4) lack of reasonable action, whether systemic or of the actions of one or more investigators and falling short of malice, but includes the conduct of police prior to the arrest of the plaintiff through to the judicial finding of no prima facie case, and
(5) the lack of reasonable action has led to a sustained deprivation of liberty, and
(6) the plaintiff falls outside the scope of the compensation scheme established by Cabinet in 1998 in respect of wrongly convicted and imprisoned individuals.
[37] He submits that these elements can only be properly considered at trial, where the court will have the benefit of all the evidence.
[38] Mr Fairbrother refers to Blanchard J’s formulation of the appropriate duty of care questions in North Shore City Council v Attorney-General (The Grange).12 The learned judge, writing for the majority, approached the questions of foreseeability, proximity, and policy as essentially involving two elements: first, all aspects of the relationship between the parties, and secondly the “externalities” (factors external to the particular parties, which may support or militate against the finding of a duty).
[39] As for the relationship between Mr King and the police, Mr Fairbrother refers to the fact that Mr King was publically identified by the police as the sole suspect.
12 North Shore City Council v The Attorney-General [The Grange] [2012] NZSC 49, [2012] 3
NZLR 341 at [56].
He submits that thereafter the police resisted every endeavour of Mr King to clear himself of suspicion. Mr Fairbrother relies on the fact that the police had unrestricted control over the situation Mr King was faced with upon his arrest, that Mr King’s access to the police files on the matter of his arrest was limited by the “relevance” definition in the Criminal Disclosure Act 2006, and that he was vulnerable to the actions of the police.
[40] On the question of public policy (Blanchard J’s “externalities”), Mr Fairbrother submits that the pleaded duty of care does not affect any policy decisions or discretions: it is a discrete claim arising out of a situation created by the police which was beyond the control of Mr King. Further, the only person affected was Mr King. The allegation that he was wrongly detained does not create any conflict with the victim’s family, and there is no question of the court being asked to consider irreconcilable interests of the victim and the offender (because Mr King is not the offender).
[41] Mr Fairbrother submits that the period covered by the claim does not place a fetter on the enquiry, as it relates to the police responsibility to look for suspects. The claim relates to the reason why the plaintiff became the alleged offender.
[42] As for the concern, expressed in a number of the cases, that it would not be in the interests of the community for the court to recognise a duty that could result in the police approaching their task with trepidation or indecision, Mr Fairbrother submits that requiring the police to act reasonably cannot be expected to have that result. He submits that it is difficult to imagine a pressure situation, which would require immediate and decisive police action, arising in the course of the performance of the duty for which Mr King contends.
[43] Mr Fairbrother refers to a number of New Zealand statutory provisions which require police officers to act reasonably.13 He submits that recognising a duty owed
by the police to the suspect to act reasonably in their investigation work would not
13 The New Zealand Bill of Rights Act 1990, s 21, Costs in Criminal Cases Act 1967, Search and Surveillance Act 2012, Land Transport Act 1998, Crimes Act 1961 referring to police powers being exercised on “reasonable grounds”, Evidence Act 2006, s 30 and Policing Act 2008, ss 3 and 8.
represent a significant extension from responsibilities to act reasonably to which the police are already subject in the performance of their functions.
[44] A further consideration is that ss 82 to 93 of the Criminal Procedure Act 2011 create a presumption against the testing of evidence before trial. Reliance is placed on the integrity of the investigation process. If that process is carried out negligently, the presumption necessarily makes it difficult for the accused person to have any negligence corrected before trial.
[45] Referring to the Compensation Scheme, Mr Fairbrother submits that the Crown has recognised a duty to the innocent who are wrongly convicted, and there is no evidence that the existence of this scheme has undermined the operations of the New Zealand Police, or made investigating officers indecisive or trepidatious. He points out that the latter concern was also discounted by the Supreme Court of Canada in Hill v Hamilton-Wentworth.14
[46] On the concern about the possibility of undermining the tort of malicious prosecution, articulated by Cooke P in Mortensen v Laing, Mr Fairbrother submits that that tort is conceptually different from the proposed tort of negligent investigation. Erosion of the tort of malicious prosecution cannot occur. One distinguishing feature of the tort of negligent investigation is that it is not dependant on a single incident or decision. Mr King is not complaining only about the act of arrest; his concerns extend, for example, to the Crown’s ongoing resistance to his application for discharge.
[47] Mr Fairbrother also relies on the judgment of McGechan J in Fyfe & Anor v Attorney-General & Ors,15 a case in which the judge declined to strike out before trial a claim by the plaintiffs alleging police negligence in arresting them.
[48] One of the “proximity” issues the court must consider is the balancing of the parties’ competing moral claims (citing South Pacific Manufacturing Co Ltd v
New Zealand Security Consultants & Investigations Ltd per Richardson J,16 and the
14 Hill v Hamilton-Wentworth, above n 11, at [56]–[58].
15 Fyfe & Anor v Attorney-General [2001] NZAR 498 (HC).
16 South Pacific, above n 5, at 283.
1998 Law Commission report, in which a wrongly convicted claimant’s moral claim was described under the heading “The importance of individual liberty”).17
Mr Fairbrother submits that the moral position must weigh heavily in favour of a duty of care being recognised in this case. Mr King was in custody for a lengthy period of time and he is ineligible for compensation under the Compensation Scheme.
[49] Mr Fairbrother submits that there will be no concern about opening the floodgates to large numbers of similar claims. It is rare for the Crown to invite an accused to apply for a discharge under s 347, and for Mr King to succeed on his claim at trial he will need to prove on the balance of probabilities that he was in fact innocent (and of course that the police conduct or system fell below reasonable standards).
[50] Mr Fairbrother says that what is alleged in this case is negligence in the process of the investigation, a kind of “systemic carelessness”, for which there can be liability.
The Attorney-General in reply
[51] In reply, Mr Powell submitted that there can be no workable distinction between a single act of negligence and the continuum for which Mr Fairbrother argues. It would be impossible to know where the line was. Similarly, there can be no workable distinction between the concept of “the law being set in motion”, and the conduct of the police investigation (whether before arrest or after arrest). The tort of negligence is not actionable per se — a plaintiff must prove loss caused by the defendant’s breach of duty. In this case, Mr King is suing for loss suffered directly as a result of the law being set in motion against him. All of the damage flows from the fact that he was prosecuted, and the tort cannot be divorced from that loss.
[52] Mr Powell also submits that there would be a “complete overlap” between the proposed negligence cause of action and the tort of malicious prosecution. For many years, malice has been accepted as an essential part of the tort of malicious
prosecution, and the protection which the malice requirement affords prosecutors should not be eroded by setting the bar for wrongful prosecution at the lower level of carelessness.
[53] On the Compensation Scheme, Mr Powell denies that the government has accepted any duty, or responsibility, to those who have been wrongly convicted. The Compensation Scheme simply reflects a decision by the government to exercise its prerogative to compensate some people because no duty of care to them exists.
Discussion and conclusions
The cases
[54] In Mortensen v Laing, Mr and Mrs Laing claimed under a fire policy for losses arising from a fire at their business premises. They alleged that the insurer refused to pay because of Mr Mortensen’s alleged breach of duty of care to them in carrying out his brief to enquire and report to the insurer on the causes of the fire. They alleged that as a result of Mr Mortensen’s advice, Mrs Laing was convicted of arson, a conviction which was later set aside on appeal. The Laings claimed damages from Mr Mortensen on the basis of breach of an alleged duty of care owed to them.
[55] The case was heard in the Court of Appeal with another case which raised similar issues, South Pacific Manufacturing Co Ltd v New Zealand Security Consultants & Investigations Ltd, and the judgments of the Court dealt with the appeals in both cases.
[56] Cooke P said:18
The pleadings in Laing v Mortensen, insofar as they refer to complaint to the police and subsequent prosecution, likewise bring out that to impose a duty of care would tend to cut across the law of malicious prosecution. The necessary ingredients of that tort include malice, want of reasonable and probable cause, and the setting of the law in motion by the defendant. The law is quite complicated as to the respective functions of judge and jury (see the review by this Court in Marley v Mitchell (CA 104/85 judgment,
19 September 1988) and as to when the defendant can properly be found to
have set the law in motion, which was the aspect considered in this Court in Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187, and also by Drake J in another part of his judgment in the London Hospital Medical College case. As pointed out in Lamont the law in this field represents a balancing of competing public interest factors — just as defamation law does. It is settled that a person who goes as far as to set the law in motion cannot be liable to the plaintiff without proof of malice and want of reasonable and probable cause. That being so, it would be very odd if a person whose involvement falls short of setting the law in motion were liable for mere negligence.
[57] To similar effect, Richardson J said:19
Another related aspect of the present case is that Mrs Laing was prosecuted for arson and that was due in part to the passing on by the investigator of information arising from his (allegedly careless) investigation. As was observed in Balfour,20 an inability in a particular case to bring it within the criteria of a defamation suit is not to be made good by the formulation of a duty of care not to defame. Further, an action for malicious prosecution requires proof of malice and there are recognised policy reasons why a cautious approach is required in determining whether a third party is responsible in an action for malicious prosecution for criminal proceedings instituted by the police (Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187). It is not in the public interest to allow a prospective plaintiff to bypass those requirements by bringing a claim in negligence.
[58] In the same case Hardie Boys J noted that, in the wider public interest, particular principles have been developed to limit liability for wrongs allegedly done to reputation or by the wrongful initiation of criminal proceedings. His Honour considered that policy militated against allowing the circumvention of those principles by admitting a cause of action in negligence (citing Bell-Booth Group Ltd
v Attorney-General,21 and Balfour v Attorney-General22). To recognise a duty of care
would be to destroy long established and well-justified protections.23
[59] Baigent’s case related to alleged negligence in the procurement of a search warrant. There was no allegation of malice or bad faith at or before the application
stage. Cooke P noted:24
19 At 309.
20 Balfour v Attorney-General [1991] 1 NZLR 519 (CA).
21 Bell-Booth Group Ltd v Attorney-General [1989] 3 NZLR 148 (CA).
22 Balfour, above n 20.
23 Mortensen v Laing, above n 5, at 319.
24 Baigent’s Case, above n 6, at 673.
The Master, the High Court Judge and all the other Judges in this Court are agreed that an action for negligently obtaining a search warrant does not lie at common law. I share that view. Malice and absence of reasonable and probable cause are essential to an action for procuring the issue of a search warrant [citations omitted]. To hold otherwise would be to cut across the principle, evolved as a balancing of interests, that a person is not liable for mere negligence in setting the law in motion [citing South Pacific Manufacturing Co Ltd v NZ Security Consultants & Investigations Ltd]. This alleged cause of action was rightly struck out.
[60] In the same case, Casey J referred to the “cogent policy reasons”25 for confining claims relating to prosecuting offences and procuring search warrants, to conduct involving malice (referring to Hill v Chief Constable of West Yorkshire [1999] AC 53, at p 63 and 65). And Hardie Boys J considered that:26
The requirement of malice in the abuse of process torts is essential to the due administration of justice. No honest person should be deterred from instituting legal process by the threat of suit for alleged want of care or sound judgment. The integrity and utility of the tort [a reference to the abuse of process torts] would be destroyed were its scope to be enlarged to encompass negligence. Policy militates against the recognition of a duty of care in this area.
[61] The learned authors of The Law of Torts in New Zealand 27 suggest a need for clear lines of division when it comes to considering the potential application of the principles of negligence in cases involving the initiation of prosecutions. They refer to the passage from Cooke P quoted at [56] above from Mortensen v Laing, and to the decision of the English Court of Appeal in Elguzouli-Daf v Commissioner of Police of the Metropolis, where the Court of Appeal struck out a claim alleging that the Crown Prosecution Service owed a duty of care in the conduct of its prosecution of a defendant.28 The Court of Appeal took the view that in most cases the imposition of such a duty would inhibit the CPS in the performance of its functions, and would lead to an unwarranted diversion of valuable time and resources in defending civil actions. Morritt L J observed that the existence of a common law
duty would suggest that the independent torts of malicious prosecution and
misfeasance in a public office are unnecessary.29
25 At 685.
26 At 693.
27 The Law of Torts in New Zealand, above n 10, at [18.2.02].
28 Elguzouli-Daf v Commissioner of Police of the Metropolis and another; McBrearty v Ministry of
Defence and others [1995] QB 335 (CA).
29 At 845.
[62] Elguzouli-Daf was approved by the House of Lords in Jain v Trent Strategic Health Authority, where the House of Lords confirmed that no duty of care was owed by those preparing, commencing or conducting proceedings before a court or tribunal to the opposing party to the proceeding.30
[63] Mr Powell referred to two other decisions of the House of Lords, and one of the Supreme Court, in the United Kingdom.
[64] In Hill v Chief Constable of West Yorkshire,31 the House of Lords referred to the wide discretion of the Chief Officer of Police as to the manner in which the police’s fundamental duty to enforce the law may be discharged. It was for the Chief Constable to decide how available resources should be deployed, and for the senior police officers concerned to decide whether particular lines of enquiry should or should not be followed, and whether or not certain crime should be prosecuted. The situation was not one where an intention to create a duty towards individual members of the public should readily be inferred.
[65] In Calveley,32 in a speech in which all members of the court concurred, Lord Bridge considered that it would plainly be contrary to public policy to prejudice the fearless and efficient discharge by police officers of their important public duty of investigating crime by requiring them to act under the shadow of a potential action for damages for negligence by the suspect. Their Lordships considered that the imposition of such a duty would be bound to lead to an unduly defensive approach in combating crime.
[66] The more recent decision of the Supreme Court in Michael v Chief Constable for South Wales33 was a case in which the plaintiff argued for an alleged assumption of responsibility by the police to the victim (the daughter of the plaintiffs), which
was said to have put the plaintiff in a special position vis-a-vis the police.
30 Jain v Trent Strategic Health Authority [2009] UKHL 4, [2009] 1 AC 853 at [29]–[35].
31 Hill v Chief Constable of West Yorkshire, above n 7.
32 Calveley v Chief Constable of the Merseyside Police, above n 8.
33 Michael v Chief Constable of South Wales Police, above n 9.
[67] The Supreme Court rejected the claim. Lord Toulson observed:34
It does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim of harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.
[68] Against those authorities, there is the decision of the majority of the Supreme
Court of Canada in Hill v Hamilton-Wentworth Regional Police Services Board.35
The majority held that the tort of negligent investigation does exist in Canada, and that the existing torts of false imprisonment, misfeasance and malicious prosecution do not provide an adequate remedy. In delivering the majority judgment in the Supreme Court, McLachlin CJ was satisfied that there was a close and proximate connection between an investigating officer and a particular suspect, and that there were no policy concerns sufficient to negate the claimed duty of care. In the majority’s view, there was no real potential for a conflict between an officer’s duty to investigate crime, and a duty to a suspect. The discretion inherent in police work was relevant to the standard of care owed, not to whether a duty existed. Nor did the majority consider that it had been established that upholding a duty would have a chilling effect on policing generally — there was a limited category of potential claimants, and no likelihood of a flood of litigation. The risk of guilty persons being acquitted and then suing in tort was considered to be sufficiently met by the plaintiff carrying the burden of showing that the negligent investigation caused compensable harm.
[69] In this country, Fyfe & Anor v Attorney-General & Ors36 was a case of mistaken identity. The plaintiffs, Mr and Mrs Fyfe, who were entirely innocent, were arrested at gunpoint and handcuffed. Mrs Fyfe was directed to lie face down on the wet road. The plaintiffs were then taken to the police station, where the police
soon realised that a mistake had been made and the couple were released.
34 At [114].
35 Hill v Hamilton-Wentworth Regional Police Services Board, above n 11.
36 Fyfe v Attorney-General, above n 15.
[70] McGechan J referred to the Crown submissions that the police did not owe any duty of care to a “suspect” or victim, and that there was no duty owed in respect of operational decisions. The plaintiffs submitted that a duty can exist in circumstances where there was a sufficient degree of proximity, and that there were no policy reasons excluding the duty of care for which they contended.
[71] McGechan J considered that the real question was whether, in light of Hill v Chief Constable of West Yorkshire and like authority, the police owed a duty of care to the plaintiffs as to the fact and manner of arrest in the circumstances of the case. His Honour was satisfied that no duty was owed to the public at large as to the manner of policing in a general sense (eg the allocation of police resources, and decisions on such matters as priorities, manner of investigations, decisions whether to prosecute and the like). Those were matters for the discretionary decision of the senior police officers concerned. In respect of such functions, there is no proximity with the public as a whole. However his Honour considered it clear that individual police officers could in certain circumstances be liable in tort, including negligence, in respect of their individual actions. The dividing line as to when a duty of care would be recognised and when it would not could be difficult to draw, and his Honour did not attempt to draw any such line in the case before him. However his Honour did not see public policy as necessarily demanding an exemption for the police in the circumstances of the case before him: “To the contrary, public policy
could well demand robust judicial control.”37 The Judge concluded that the police
can be liable in negligence in respect of the exercise of their function of effecting an arrest; liability will depend upon the circumstances of the particular case. His Honour was not prepared to strike out Mr and Mrs Fyfe’s claim before trial.
[72] The Fyfe case did go to trial, but on the facts as they emerged at the trial the negligence claims failed. An appeal from that decision was dismissed.38
[73] The authors of the The Law of Torts in New Zealand consider it unlikely that the New Zealand courts will follow the approach adopted by the majority of the
Supreme Court of Canada. The authors submit that existing authority
37 At [61].
38 Fyfe v O’Fee [2003] NZAR 662 (HC) and Fyfe v Attorney-General [2004] NZAR 731 (CA).
(South Pacific/Mortensen in New Zealand, and Jain in England) holds to the contrary, and the danger of conflicting duties has been accepted as a convincing reason for denying a duty to a suspected abuser as well as to a suspected victim in the case of alleged negligent investigation of child abuse.39
The Compensation Scheme
[74] In 1998 Cabinet, acting under the Crown’s prerogative, adopted most aspects of the Law Commission’s 1998 report Compensating the wrongly convicted.40 The procedure adopted by Cabinet is for a claimant who has been convicted and sentenced to a term of imprisonment to apply for compensation, upon which the Minister of Justice will carry out an initial assessment and if the claimant passes that stage, will appoint a Queen’s Counsel to determine eligibility and make a recommendation as to the quantum of any award. The Queen’s Counsel is required
to report back to the Minister. Cabinet makes the final decision on the recommendation of the Minister. Revised guidelines for eligibility were issued in
2001.
[75] Two particular points stand out about the Compensation Scheme. First, it applies only to those who have been convicted of a crime and are subsequently able to prove on the balance of probabilities that they were innocent. In this case, Mr King was never convicted. Secondly, the Compensation Scheme did not set up any regime of entitlement — any payments made under the scheme are made on an
ex gratia basis.41
[76] The authors of The Law of Torts in New Zealand consider that to allow a duty of care for negligent investigation of a crime would be inconsistent with a government scheme which provides only for ex gratia payments to those who have
been convicted.42
39 The Law of Torts in New Zealand, above n 10, at [18.2.02] citing B v Attorney-General [2003] UKPC 61, [2004] 3 NZLR 145.
40 Compensating the wrongly convicted, above n 3.
41 From a sense of moral obligation rather than any legal requirement. See Akatere v Attorney- General [2006] 3 NZLR 705 (HC) at [8]–[14] for background on the Compensation Scheme and New Zealand’s decision to withhold accession to art 14(6) of the International Covenant on Civil and Political Rights.
42 The Law of Torts in New Zealand, above n 10, at [18.2.02].
Application of the law in this case
[77] It will be convenient to consider the claimed duty in two stages: first, as it is said to apply in the period up to the point when Mr King was charged on 26 March
2008, and secondly in the period after that. The position might be different in the second stage, when Mr King’s continued incarceration was subject to what might be loosely described as the overall supervisory role of the court, and the police and/or prosecution assumed certain obligations, such as disclosure obligations, to Mr King.43
[78] I will begin by considering the position in respect of the first of those two stages.
Did the police owe a duty of care up to the point Mr King was charged?
[79] Mr Powell submits that this is not a novel duty of care case, and that the court is bound by earlier decisions, including decisions of the Court of Appeal, which have held that no duty of care is owed to a suspect by those who set the law in motion.
[80] The first important question will be whether Mr Powell is right in that submission. If I conclude that he is not, I must apply the approach the Supreme Court has adopted in cases where the recognition of a novel duty of care has been in issue. In The Grange,44 Blanchard J referred to a two-step process, considering first all aspects of the relationship between the parties, and then turning to policy considerations, external to that relationship, to determine whether it would be just
and reasonable to impose a duty. At the second of those stages the court is concerned with the effect of its decision on non-parties and on the structure of the law and on society generally. However, some matters may require to be considered more than once (ie at both stages of the enquiry).
[81] The first stage of the enquiry is concerned with the broad question of whether the relationship between plaintiff and defendant is sufficiently proximate for a duty
of care to exist. Whether it should have been foreseeable by the defendant that the
43 Whether at common law or under relevant legislation (including, from 29 June 2009, the
Criminal Disclosure Act 2008).
44 The Grange, above n 12.
plaintiff would suffer the particular loss sued for is one of the questions relevant to the proximity enquiry, but a finding of reasonable foreseeability does not necessarily mean the relationship is sufficiently proximate: reasonable foreseeability is at best a screening mechanism.45
[82] At the second stage of the enquiry the court looks beyond the parties and assesses any wider effects of its decision on society and the law generally. Issues such as the capacity of each party to insure against the liability, the likely behaviour of other potential defendants in reaction to the decision, and whether imposing liability will be consistent with the legal system more generally may arise.46
Ultimately, the exercise is a balancing one, in which all relevant factors must be
weighed. The outcome in a grey area case has to be determined by judicial judgment.47
[83] Mr Powell submits that recognition of the duty of care contended for would be inconsistent with New Zealand law governing liability in tort for wrongfully bringing a prosecution.
[84] The Court of Appeal decisions in Mortensen v Laing and Baigent’s case, discussed at paras [54]–[60] of this judgment, both support Mr Powell’s argument. The relevant tort is the tort of malicious prosecution, and the ingredients of that tort include malice, want of reasonable and probable cause, and the setting of the law in
motion by the defendant.48 If the duty of care contended for by Mr King were
recognised, it would effectively remove the requirement of malice. The police (or individual police officers) would be liable for damage caused by mere negligence in their investigations prior to the laying of charges. As Hardie Boys J noted in
Baigent’s case, no honest person should be deterred from instituting legal process by
45 At [156]–[157].
46 At [160].
47 At [161].
48 The tort also requires that the criminal proceeding has been terminated without the plaintiff being incriminated, and that the plaintiff has suffered damage as a consequence of the proceedings: see The Law of Torts, above n 10, at [18.2.02].
the threat of suit for want of care or sound judgment.49 Moreover, Cooke P clearly stated:50
… to hold otherwise would be to cut across the principle, evolved as a balancing of interests, that a person is not liable for mere negligence in setting the law in motion.
[85] In B v Attorney-General, the Privy Council noted that it is “settled law” that damages are not recoverable for setting the law in motion, except where malice and the absence of reasonable and proper cause can be proved.51
[86] The position is broadly the same in the United Kingdom. As Lord Steyn noted in Brooks, “where no action for malicious prosecution would lie, it would be strange indeed if an acquitted Defendant could recover damages for negligent investigation” (citing the speech of Lord Bridge in Calveley).52 And Lord Rodger observed in Brooks that while prosecutors and police are under an ethical and professional duty to act with due care to suspects, that duty does not translate into a legal duty to the suspects.53
[87] I do not think the decisions I have referred to can be distinguished in relation to this first stage, on the basis that they refer to different fact situations. For example, B v Attorney-General was concerned with a negligence claim by a suspect in a child abuse investigation against those conducting the investigation, while Baigent’s case was concerned with alleged negligence in the procurement of a search warrant. The facts were very different, but the factor common to the cases is that they were all concerned with the broad topic of liability for setting the law in motion. In this context, a person cannot be liable for mere negligence. On that basis, I accept Mr Powell’s submission that I am bound by the Court of Appeal decisions in
Mortensen v Laing and Baigent’s case, and that the statement of claim must be struck
49 Baigent’s case, above n 6, per Hardie Boys J at 693, referred to at [60] of this judgment.
50 At 685. Refer [59] of this judgment.
51 B v Attorney-General, above n 39 at [31] citing Baigent’s Case, above n 6, at 673, per Cooke P.
52 Brooks v Commissioner of Police of the Metropolis and others [2005] UKHL 24 at [20], citing
Calveley v Chief Constable of the Merseyside Police, above n 8 at 1238 D-H. Lord Steyn also referred to the judgment of Ralph Gibson LJ in Kumar v Commissioner of Police (unreported)
31 January 1995, in support of the proposition that no duty of care is owed by police officers in their decisions whether or not to place sufficient reliance upon the account of a complainant to justify the making of a charge against the accused.
53 At [38].
out to the extent that it pleads negligence by the police up to the point where Mr King was charged with the crime (ie to the extent that it alleges negligence in “setting the law in motion”).
[88] I add that even if I considered I was free to start with a clean slate and consider afresh the various policy considerations applicable to this first stage, the result would be the same.
[89] While particular care is required in areas where the law is confused or developing, and there exists considerable authority that developments in negligence need to be based on proved rather than hypothetical facts,54 I do not understand Couch v Attorney-General to be taken as authority for the proposition that a claim in negligence should never be struck out ahead of trial — as Blanchard, Tipping and McGrath JJ observed in Couch, a claim should be struck out if policy considerations militate against a duty of care, but only if that state of affairs is “undoubtedly so”. In making that assessment, it will be necessary to bring to account such policy factors
as may be said to favour recognition of a duty of care, in addition to the policy factors which point against a duty.55
[90] I think that “undoubtedly so” threshold is met in this case, in respect of the pre-charging stage. First, it is inescapable that recognition of the proposed negligent investigation tort would lower the bar for civil proceedings against the police for wrongful prosecution: a suspect who had been charged as a result of negligent investigation by the police would no longer have to prove malice on their part. This would inevitably involve a shift in the balancing of the competing public interest
factors discussed in Mortensen v Laing and in Baigent’s case.56
54 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725, at [33], referred to at [27] of this judgment.
55 At [126] and [129]. See also Richardson J in Mortensen v Laing, above n 5 at 305 on the requirement to consider policy factors: “It follows in my view that [the Master] erred in not considering policy factors”.
56 See too the judgment of Gallen J in Cunningham & Others v Clarke & Others HC Wellington
CP 93/88, 23 March 1990, where the court considered whether the tort of abuse of process could be maintained in circumstances where an action in malicious prosecution had failed. His Honour said, at 43–44:
“The question immediately arises as to whether it is possible to maintain an action for abuse of process in respect of the initiation of a criminal prosecution, there being a specific tort for wrongful prosecution which covers such a case. … The reasons for stringency in the tort of malicious prosecution are the need to ensure that people are not unreasonably inhibited from
[91] Mr Fairbrother submits that the proposed tort of negligent investigation is conceptually different from the tort of malicious prosecution, such that there would be no “erosion” of the latter tort if the duty he contends for were recognised. I do not accept that submission. The simple reality is that a police officer who would not previously have been liable (because he or she did not act maliciously in charging the suspect) could now be liable (if he or she was careless in the investigation of the offence) if the duty of care were recognised. In my view that would effect a substantial change in what is now settled New Zealand law in the area of civil liability for the wrongful initiation of court proceedings.
[92] I accept that in Hill v Hamilton-Wentworth the majority of the Supreme Court of Canada did not appear to see any inconsistency between the new “negligent investigation” tort and the existing wrongful prosecution torts, including malicious prosecution. The majority considered that the existing remedies for those torts were incomplete, and might leave a victim of negligent police investigation without an adequate remedy. And government compensation schemes had their own limits, both in terms of eligibility and amount of compensation. Recognition of the tort of negligent police investigation was said to be necessary “to complete the arsenal of
already existing common law and statutory remedies”.57
[93] But in his minority judgment given in Hill v Hamilton-Wentworth, Charron J did express concern at the effect recognising a tort of negligent investigation would have on the other torts which are concerned with the initiation and prosecution of court proceedings. His Honour said:58
The creation of the new tort of negligent investigation would effectively subsume all the existing torts and risk upsetting the necessary balance between the competing interests at play.
[94] Those concerns appear to be the same as the concerns expressed in the
New Zealand Court of Appeal in Mortensen v Laing and Baigent’s case.
initiating criminal prosecutions. … To allow the wider tort of abuse of process to apply where the stringent requirements of malicious prosecution cannot be satisfied, would be to defeat that concern.”
57 Hill v Hamilton-Wentworth above n 11, at [34]–[35].
58 At [182].
[95] I note also that in their text The Law of Torts in New Zealand, the learned authors express the view that it is unlikely that the New Zealand courts will follow the Canadian approach.59 Mortensen v Laing in New Zealand, and Jain in the United Kingdom, point against the recognition of a tort of negligent investigation.
[96] The next policy consideration is whether a refusal to recognise a duty of care owed to suspects would or might result in injustice on the facts of a particular case. This is the policy consideration invoked by Mr Fairbrother in his submissions regarding the moral strength of Mr King’s claim. This may be an important policy consideration on whether a duty of care should be recognised in respect of the period after a suspect has been charged, but I do not think any carelessness in the investigation could or should trump the (pre-charging) policy consideration which requires that an honest person, acting without malice, should be able to bring a charge before the criminal court without fear of being sued for any carelessness in his or her investigations made before the laying of the charges. At the pre-charging stage, it is unlikely that such negligence will have caused the subject significant loss.
[97] I also accept Mr Powell’s submission that if a duty of care to a suspect were recognised, it would be difficult to deny that a duty should also be recognised to the victim, or the victim’s family. As the Privy Council noted in B v Attorney-General,60 it could be very difficult to reconcile the two duties, which on their face would appear to be in conflict.61
[98] A further policy consideration, which also points against the recognition of any duty in the period up to the point where the suspect is charged, is that recognising a duty based on the mere unreliability of witnesses on whose accounts a decision has been made to charge a suspect (as alleged in Mr King’s case) would cast the liability net too wide. Unreliability of witnesses is a common enough problem
for police and prosecutors, and to recognise a duty of care based on mere
59 The Law of Torts in New Zealand, above n 10, at [18.2.02].
60 Baigent’s case, above n 6.
61 A similar conclusion was reached by the House of Lords noted in JD v East Berkshire Community Health NHS Trust; K and another v Dewsbury Healthcare NHS Trust and another; K and another v Oldham NHS Trust and another [2005] UKHL 23. The House of Lords rejected a general duty of care on the police to victims of crime in Hill, above n 7, Brooks, above n 52, and Michael, above n 9.
unreliability of witnesses would risk the floodgates being opened to numerous claims against the police where a Crown witness has not come up to brief and the accused person contends that the police should have recognised the unreliability and abandoned the prosecution at an earlier stage. I do not consider it reasonably arguable for Mr King that a decision to allow the jury to decide whether a particular witness’ evidence should or should not be accepted, without more, should expose the police to a subsequent claim for damages.
[99] Mr Fairbrother points to a number of statutory contexts where the police are required to act “reasonably”. In my view those other contexts do not assist in this case, where Mr King is not alleging breach of statutory duties in the pre-charging stage (which would open up an enquiry as to whether it was the intention of Parliament that breach of the particular statutory provision would give rise to an action for damages, or whether other remedies — eg exclusion of evidence, or the availability of police internal disciplinary procedures —were intended to give the provision its “teeth”), but a broad general duty of care to a suspect in the investigation of an offence.
[100] Nor does the existence of the Compensation Scheme avail Mr King. I agree with Mr Powell that the Compensation Scheme, being ex gratia in nature, does not reflect any acknowledgment by the government of some sort of legal responsibility to those who have been wrongly charged. And of course the recommendation of the Law Commission which preceded the introduction of the Compensation Scheme in
1998 was that those who have not been convicted would not be eligible for discretionary compensation under the Compensation Scheme.
[101] For the foregoing reasons, I conclude that the statement of claim must be struck out to the extent that it alleges breach of duty in the period up to the point Mr King was charged.
Did the police owe a duty of care after Mr King was charged?
[102] The law has generally regarded the protection of parties to litigation from damage caused to them by the way the other side has conducted the litigation, as a matter to be corrected by the court in which the litigation is being conducted. In
Jain,62 the claimants sued in respect of the decision of a Magistrate to cancel the registration of their nursing home. The decision was made on the ex parte application of the defendant registration authority, without any prior notice to the claimants. The order made by the Magistrate required the immediate removal of the residents from the claimants’ nursing home. Although the claimants successfully appealed to a Registered Homes Tribunal, by the time the appeal had been heard they had already suffered significant damage to their nursing home business and other assets they owned. They sued the authority in tort for the economic damage they had suffered, alleging negligence on the part of the authority in making its application to the Magistrate. When the matter came before the House of Lords, the principal issue was whether the authority, in making the application to the court, had breached a tortious duty of care owed to the claimants.
[103] The House of Lords held that where the preparation for, or the commencement or conduct of judicial proceedings before a court (or of quasi- judicial proceedings before a tribunal such as a Registered Homes Tribunal) had the potential to cause damage to a party to the proceedings, a remedy for that damage could not be obtained by imposing on the opposing party a common law duty of care. The protection of parties to litigation from damage caused to them by the litigation, or by orders made in the course of the litigation, depended upon the control of the litigation of the court or tribunal in charge of it, and the rules and
procedures under which the litigation was conducted.63
[104] Scott LJ referred to his own decision in Business Computers Intl Ltd v Registrar of Companies,64 where a claim for damages for negligence brought by a company which had been put into liquidation by the court on a liquidation petition that had never been served on it, was struck out. The Court upheld the petitioner’s application to have the negligence action against it struck out, on the ground that it
had not owed the company a duty of care. Scott LJ considered that:65
62 Jain, above n 30.
63 At [35].
64 Business Computers International Ltd v Registrar of Companies [1988] Ch 229, [1987]
3 All ER 465, referred to at [30].
65 At [30].
… there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process or in regard to any other step in the proceedings. The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.
[105] Scott LJ also referred to a number of other authorities, including the decision of the Court of Appeal in Martine v South East Kent Health Authority,66 in which Dillon LJ had referred to the Business Computers case with approval, noting that:67
It was not just or reasonable… that there should be a duty of care because the adversarial system of litigation has its own rules and requirements, which operate as checks and balances.
[106] Dillon LJ went on to observe that if in any circumstances the checks and balances should fail:68
… negligence as a tort could not be, and should not be, invoked as the
remedy.
[107] In Jain, all members of the court expressed regret that the law did not appear to provide any remedy for the claimants. The inadequacy of such safeguards as did exist in the relevant legislation was not seen as justifying the recognition of a new duty of care.
[108] In the New Zealand case Burns v National Bank of New Zealand Ltd,69
Mr and Mrs Burns had settled proceedings with the respondent bank. They subsequently brought a new proceeding alleging that the bank had failed to discover certain documents. They contended that they would not have settled, or would have settled on more favourable terms, had those documents been available. They applied for summary judgment, seeking an order setting aside the settlement agreement and an order that their proceeding against the bank be reinstated.
[109] Mr and Mrs Burns also alleged that the bank and its solicitor had committed
the tort of “spoliation” of evidence, and sought damages from them. Briefly,
“spoliation” of evidence means the intentional destruction or alteration, or
66 Martine v South East Kent Health Authority (1993) 20 BMLR 51 (CA).
67 Jain, above n 30, at [34] citing Business Computers, above n 64.
68 At [34] citing Business Computers, above n 64.
69 Burns v National Bank of New Zealand Ltd [2004] 3 NZLR 289 (CA).
concealment, of evidence which would otherwise have been available in litigation. The bank and its solicitor applied to strike out this cause of action.
[110] The Court of Appeal declined to recognise an independent tort of spoliation. The Court considered that there was already a wide range of remedies available for the non-disclosure of documents, and any damages would be speculative. In giving the judgment of the court, Glazebrook J stated:70
In this case the suggested independent tort of spoliation does not cut across other areas of law in the sense that protections available under those other areas would not be available. It is thus not quite the same situation as the Court was dealing with in [Mortensen v Laing] nevertheless it would extend tort law into the area of litigation-related misconduct during the course of proceedings, an area which has been seen as not properly within the established litigation based torts. While this does not necessary rule out recognising the new tort, it does indicate that there should be a large measure of caution exercised before overturning such a long-standing policy choice.
[111] In declining to recognise the independent tort of spoliation in Burns, the Court of Appeal referred to the existence of alternative remedies, the fact that damage would be too speculative, and that the proposed tort would be potentially inconsistent with the policy favouring final judgments: a plaintiff who lost the primary law suit would be able to bring a second, separate, suit, by establishing that a piece of relevant evidence had been destroyed or concealed. That would create the possibility of inconsistent results, and “this Court should still be wary about adopting a new tort that could have the consequence of undermining the finality of
adjudication and producing further litigation”.71
[112] The language used by Glazebrook J in Burns spoke to the need for caution in considering the recognition of extending tort law “into the area of litigation-related misconduct during the course of proceedings”, but I do not think the Court intended to completely foreclose the extension of tort law into this area if the facts of a
particular case justified an extension.
70 At [69].
71 At [85].
[113] In Chamberlains v Lai,72 Mr and Mrs Lai claimed damages against their solicitors for professional negligence in certain acknowledgements made to the High Court before the terms of a consent order were finalised. The Supreme Court held there was no blanket immunity for barristers from liability for breach of duty to use reasonable care and skill in the conduct of litigation. If there are public policy reasons against the recognition of liability for certain losses, the direct way to address them is through the elements of the cause of action, rather than through blanket immunity.
[114] While the case was primarily concerned with the issue of a barrister’s immunity from suit arising from negligence in the conduct of litigation, I think the following observations made by Elias CJ, Gault and Keith JJ in their joint judgment, in respect of litigation-related misconduct more generally, are worthy of note:73
The criminal justice system on the other hand is not a system of party- delineated justice. It imposes sanctions in the name of society as a whole. It provides for correction of error through enhanced appeal opportunities, in a manner not available to civil litigants. Those acquitted at trial or discharged after appeal have to accept lawful deprivation of liberty in the meantime as part of the system. They usually have no entitlement to compensation, except in those cases where an ex gratia payment is made by the state or where there is a public law claim against the state outside the criminal justice system.74
[115] But their Honours went on to say:75
… We accept that the impact of advocate liability upon the criminal justice system is not exhausted by prevention of collateral attack upon subsisting convictions. There remain difficult questions about liability which have not yet been addressed in our law because the immunity has made their consideration unnecessary. … Following the lifting of the immunity, it may well be necessary to consider whether reasons of legal policy impact upon liability for the negligent conduct of criminal proceedings. The extent to which the public interest requires redress to be obtained only or principally within the remedies provided by the criminal justice system itself will have to be considered. It will be necessary to consider too whether there are any limits to liability. These inquiries are hinted at in D’Orta-Ekenaike in the joint majority decision when it notes, as a question that “need not be answered”:76
72 Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7.
73 At [74].
74 For example, for breach of the New Zealand Bill of Rights Act 1990 on the basis recognised in
Baigent’s Case.
75 At [75].
76 D’Orta Ekenaike v Victoria Legal Aid (2005) 214 ALR 92 at [70].
… [w]hether the lawful infliction of adverse consequences (such, for
example, as imprisonment) can constitute a form of damage…
[116] The first of those passages in particular appears to provide powerful support for Mr Powell’s arguments, but I think the observations in the second of the quoted passages suggest that the law is not necessarily settled in this area. I note too the use of the word “usually” in their Honours’ statement (in the first of the passages quoted) that those acquitted at trial or discharged after appeal “usually have no entitlement to compensation, except in those cases where an ex gratia payment is made by the state or where there is a public law claim against the state outside the criminal justice system.”
[117] The more recent decision of the Court of Appeal in Currie & Others v Clayton & Westbury77 confirms that the courts may now be prepared to recognise tortious duties for misconduct in the course of a criminal proceeding, at least in circumstances where there is no prospect of the accused person obtaining effective redress within the criminal proceeding itself.
[118] In that case, the Court of Appeal declined to strike out causes of action based on misfeasance in public office and breach of the New Zealand Bill of Rights Act
1990 (NZBORA), in circumstances where the Crown prosecutor had failed to disclose to defendants facing fraud and receiving charges the full details of a sentencing indication which had earlier been given (in another court) in respect of a witness who had been involved in the offending and who would be giving evidence for the Crown at their trial. It was only after Mr Clayton and Ms Bradbury had been convicted and sentenced on a number of charges that they found out that the part of the sentencing indication they had been given was (arguably) materially incomplete. They successfully appealed their convictions, and the Crown later consented to their discharge under s 347 of the Crimes Act. But by then Mr Clayton had served
14 months of his prison sentence, and Ms Westbury had completed her community
work sentence.
77 Currie v Clayton [2014] NZCA 511, [2015] 2 NZLR 195.
[119] Mr Clayton and Ms Westbury sued the Crown prosecutor and others for damages in the torts of deceit and misfeasance in public office,78 and under NZBORA. The deceit cause of action was struck out at first instance by Associate Judge Osborne,79 but the other two causes of action survived the strike-out application in the High Court.80 On appeal, the Court of Appeal noted that “the Court’s powers to sanction and control the actions of lawyers in court and the duties a prosecutor owes the court arguably do not redress a situation where, as here, the plaintiffs have served all or part of the sentences imposed on them, in the case of Mr Clayton part of a term of imprisonment”.81 The misfeasance in public office cause of action was allowed to go forward to trial, as was the claim under NZBORA.
[120] The answer to the problem of whether the law of negligence should be extended to cover misconduct by a party in the course of litigation was arguably resolved in the United Kingdom in Jain, where the House of Lords declined to recognise a new duty of care, saying that the injured party must look to the processes of the court in which the misconduct occurred for redress, and not issue a separate claim for damages in negligence. In the New Zealand criminal context, there are
similar procedural safeguards against possible injustice.82 However, the
78 The Court of Appeal listed the elements of the tort of misfeasance in public office in
Currie, as follows at [40]:
(1) Standing: the plaintiff must have standing to sue;
(2) Public office: the defendant must be a public officer;(3) Unlawful conduct: the defendant must have acted or omitted to act in purported exercise of her public office unlawfully; either:
(a) intentionally, that is actually knowing her actions or omission to act were
beyond the limits of her public office; or
(b) with reckless indifference as to whether she was acting or omitting to act outside those limits.
(4) Intention: the defendant must have so acted or omitted to act either:
(a) with malice towards the plaintiff towards the plaintiff, that is, with intention to harm the plaintiff; or
(b) knowing her conduct was likely to harm the plaintiff, or people in the general position of the plaintiff; or
(c) with reckless indifference as to whether the plaintiff would be harmed.
Subjective recklessness, not objective recklessness is required.
…
(5) Resulting loss: the plaintiff must actually have suffered loss and the defendant’s actions must have caused the plaintiff ’s claimed loss. (footnotes omitted)
79 Clayton v Currie [2012] NZHC 1475.
80 Clayton v Currie [2012] NZHC 2777, [2013] 1 NZLR 263.
81 Currie v Clayton, above n 77, at [62].
82 For example, rights of persons charged (New Zealand Bill of Rights Act 1990, s 24), the right to be tried without undue delay, (New Zealand Bill of Rights Act 1990, s 25(b)), the ability to apply for bail, the entitlement to disclosure of relevant documents under the Criminal Disclosure Act
New Zealand Court of Appeal in Currie appears to have recognised that, on the facts of a given case, those safeguards might not be enough. Mr Clayton had served 14 months of his prison sentence before the matter could be put right, and the processes of the criminal court in which he was charged (or the court to which he had appealed) could not put that right. The Court of Appeal’s answer was to allow the claim for damages for misfeasance in public office, and the claim under NZBORA,
to go forward for trial.83
[121] As in Currie, so in this case Mr King says that his eventual s 347 discharge came too late to save him from serving a substantial period of imprisonment, which he should not have been obliged to serve, and from having bail terms imposed on his release from prison that were stricter than should have been the case.
[122] It is of course true that the causes of action that survived the strike-out application in Currie were not negligence causes of action. One cause of action was misfeasance in public office, and the other was under NZBORA.
[123] Mr King has not pleaded misfeasance in public office here, nor public law damages for breaches under NZBORA.84 Nor has he pleaded malicious prosecution (which may also apply to a decision to maliciously continue with a prosecution, where there may have been no malice in the bringing of the charges),85 or the tort of
abuse of process.86
2008, and the right to apply for discharge under s 347 of the Crimes Act 1961 (carried forward by s 147 of the Criminal Procedure Act 2011). Costs may be awarded under the Costs in Criminal Cases Act 1967. There are rights associated with the trial itself (New Zealand Bill of Rights Act 1990, ss 25 and 27) and enhanced appeal opportunities in a manner not available to civil litigants: see Chamberlains v Lai, above n 72, at [74].
83 A later application for summary judgment by the Crown, seeking judgment on the claims of Mr Clayton, Ms Westbury and certain other defendants who had been charged with the offending, was recently refused by Thomas J in Clayton v Currie [2017] NZHC 1302.
84 For example under ss 25 or 27 of NZBORA, as was argued in Currie v Clayton, above n 74.
Baigent’s case established the availability of public law damages for breaches of NZBORA.
85 The tort of malicious prosecution has been recognised as actionable in the continuation of proceedings: The Law of Torts, above n 10, at [18.2.06]: “There may be malice either in the institution of proceedings or in the continuation of the proceedings if the defendant subsequently realises that they should not have been brought”, citing Rawlinson v Purnell Jenkson & Roscoe
[1999] 1 NZLR 479 (HC).
86 A litigation-related tort which may provide relief where proceedings have been brought not for the purpose of prosecuting them to a conclusion, but as a means of obtaining some advantage for which the proceeding was not designed, or some collateral advantage beyond what the law offers. See The Law of Torts in New Zealand, above n 10, at [18.5.02] citing for example Robinson v Whangarei Heads Enterprises Ltd [2015] NZHC 1147, [2015] 3 NZLR 734 at [29]–
[124] But the majority of the Supreme Court (in Chamberlains v Lai) has said that the courts may need to reconsider the question of the extent to which the public interest requires redress to be obtained only or principally within the remedies provided by the criminal justice system itself. If there remains a possibility that redress can be obtained outside the criminal justice system, I do not think it can be said with the certainty necessary to justify striking out Mr King’s claim that, in the particular circumstances of his case, a claim for damages for breach of a duty of care in tort might not be the appropriate form of “outside redress”. That is a question best left for determination when the court has heard the evidence.
[125] I acknowledge the arguments which may be made for the Attorney-General that recognition of a duty of care in negligence in respect of the period after the murder charge was laid would or might “erode” the specific torts of misfeasance in public office, or malicious prosecution in continuing the prosecution against Mr King (I do not think the tort of abuse of process is relevant here). The bar for bringing a civil claim would arguably be lowered, just as allowing a claim for negligent investigation leading to the filing of a charge would lower the bar (set by the tort of malicious prosecution) for claims for the wrongful commencement of a prosecution. But in respect of alleged police or prosecutorial conduct after a proceeding has been commenced, I do not think the policy concern about deterring honest people from commencing a proceeding has the same force. By then, the proceeding has already been commenced and the court is seized of the case. And the accused has available the various protections afforded by the criminal process, including the right to have relevant documents disclosed, and the ability to apply for
a discharge if it appears that the charge is not justified.87 The position is arguably
different.
[126] Further, the very recent decision of Ellis J in Hunter v Neville & Others,88 suggests that the door has not been firmly closed on claims that those involved in the prosecution or sentencing of criminal defendants may owe a duty of care to those
defendants. While this case was primarily concerned with whether a probation
[47].
87 Crimes Act 1961, s 347 (carried forward by s 147 of the Criminal Procedure Act 2011).
88 Hunter v Neville & Others [2017] NZHC 1477.
officer preparing a pre-sentence report was immune from suit in respect of the contents of that report, Mr Hunter also alleged that the two probation officers concerned were negligent in stating in two of their reports that Mr Hunter’s address was unsuitable for electronic monitoring (EM). Mr Hunter contended that he was forced to find an alternative address for home detention purposes, and that he suffered losses as a result. The case came before Ellis J on Mr Hunter’s application to review the decision of Associate Judge Christiansen striking out the claim.
[127] Ellis J found that the law on immunity was not sufficiently clear to justify striking out Mr Hunter’s claim for misfeasance in public office. But more important for present purposes, her Honour did not consider that the negligence claim should have been struck out. Her Honour referred to the decision of the English Court of
Appeal in Smart v The Forensic Science Service Ltd,89 where the Court declined to
strike out a claim for negligence in a case which had some similarities with the present case (an incorrect or incomplete report by a forensic scientist was said to have led to the claimant’s wrongful conviction). In Hunter, Ellis J did not consider that recognising the duty of care contended for would cut across the statutory scheme relating to pre-sentence reports established by the Sentencing Act 2002.
[128] In Smart, the claimant, Mr Smart, had been convicted under the Firearms Act
1968 for being in possession of live ammunition (a bullet, found by the police in the course of a search for drugs at Mr Smart’s home). A forensic scientist employed by the defendant prepared a report for the police which confirmed that the bullet was live, and not merely ornamental, as Mr Smart had believed. Mr Smart was charged with the (strict liability) offence under the Firearms Act, and he pleaded guilty.
[129] After Mr Smart was sentenced, the Crown Prosecution Service told his solicitors that an internal review carried out by the defendant had revealed that the “bullet” was in fact a dummy round, and not ammunition as defined in the Firearms Act (it appeared that the defendant’s forensic scientist had mistakenly analysed the contents of a bullet which was an exhibit in an unrelated case). Following this disclosure, Mr Smart’s guilty plea was vacated and the charge was
dismissed.
89 Smart v The Forensic Science Service Ltd [2013] EWCA Civ 783.
[130] Mr Smart sued the defendant alleging breach of a duty of care owed to him, and breach of his rights under the Human Rights Act 1998 (UK). The negligence cause of action alleged (inter alia) that the defendant owed Mr Smart a duty to operate proper systems to ensure that the continuity of exhibits was secure, and that expert reports actually related to the exhibits referred to in those reports.
[131] The judge at first instance struck out both causes of action, on the bases that the defendant was protected by witness immunity, that it owed no duty of care to Mr Smart, and that it was not a public body to which the Human Rights Act applied. Mr Smart then appealed to the Court of Appeal.
[132] At the hearing of the appeal Mr Smart was given leave to add a new cause of action in the tort of deceit, based on further documents which the defendant had disclosed (the new documents suggested that someone had interfered with the exhibit numbers, resulting in the “live” bullet being attributed to Mr Smart). The defendant accepted that the deceit course of action could not be struck out, and the Court of Appeal declined to strike out the negligence cause of action.
[133] In his judgment, with which Rimer LJ agreed, Moses LJ said:90
… In the light of the amendments now made, I think it would be wrong to exclude the proposition that whoever it was who interfered with the correct exhibit number, whether it was the forensic examiner or not, owed a duty to the person to whom the bullet would be attributed as a result of interference with the exhibit number.
It must be recognised that as a result of interference with the exhibit number the real bullet was falsely attributed to this Appellant. The effect of interference with the exhibit numbers, whether it was designed originally to conceal confusion or “mix up” or not, was the same as planting the real bullet in the Appellant’s premises. It is alarming that the course of justice appears to have been perverted by the alteration of exhibit numbers and the failure to disclose that that had occurred or any reason why it occurred. I suggest any court would be most reluctant to allow immunity to be deployed in a way which prevents these matters being litigated. All the more so when the suggestion that the matter be rectified in the Magistrates’ Court removed any right of statutory redress.
[134] In a separate concurring judgment Aikens LJ said:91
90 At [30]–[31].
91 At [37].
The next question, that is, whether the Respondent can owe the Appellant a duty of care so as to found any claim in negligence, must also depend on the facts. As Mr Squires accepted, the issue here must be whether it is “fair just and reasonable” to impose such a duty, because the requirements of foreseeability of damage and proximity can readily be satisfied. Whether it is fair just and reasonable to impose a duty of care must depend on the facts, in particular the nature of the body “The Forensic Science Service Limited” and what precisely happened to the bullet and how it came to be mislabelled. They are all going to be investigated in any event as a result of the amendment pleading deceit.
[135] As in the Smart case, it seems to me that Mr King’s case is clearly arguable on the “screening” question of foreseeability of damage, and also on the broader proximity question (at least to the extent that the police are alleged to have been negligent in not promptly disclosing to him the full extent of the DNA evidence, including the evidence which is said to have been exculpatory).
[136] Turning to policy considerations, I do not believe this is one of the limited number of cases where the law is so clear that it would be safe to strike out Mr King’s claim in its entirety on policy grounds, before all of the facts are known. If what Mr King says about the late disclosure of exculpatory DNA evidence is correct (and I am required for the purposes of a strike-out application to proceed on the basis that it may be), the consequences of the late disclosure appear to have been
serious. The late disclosure has not yet been explained,92 and (as in Currie) there is
not now any prospect of the position being “put right” by the court in which Mr King was prosecuted and later discharged. On the facts as pleaded, there appears to be a substantial “injustice” factor to be weighed (in Mr King’s favour) against any policy considerations which might point against recognition of the duty.
[137] Cases such as Chamberlains, Currie, Hunter and Smart suggest that the last word has not yet been said in cases such as the present, and of course it will not usually be appropriate to strike out a claim where the law is unsettled, or developing. The necessary weighing or “balancing” of policy considerations is in my view an exercise best left for trial. I mention also the decision in Fyfe, where McGechan J
refused the strike-out application, considering that a final decision should be reached
92 Having elected to apply to strike out the claim on the basis that no duty of care was owed, the
Crown was not required to explain it on this application.
upon “full and precise facts proved at trial on a contested basis”.93 I think full disclosure of facts is a critical consideration in this case.
[138] I add only that I do not consider that any conflict which might exist between the proposed duty to the accused and any duty owed to the victim’s family provides a sufficient policy reason to strike the claim out at this stage, before the facts are in. I think specific duties owed to an accused person after he or she has been charged are likely to be already largely covered by the laws governing criminal procedure, and the enquiry at trial is likely to be about whether the police negligently failed to discharge those (known) duties. If that is right, it is difficult to see much scope for conflict with any duties owed to the victim’s family.
[139] In the view to which I have come it is not necessary to refer to
Mr Fairbrother’s other submissions in support of recognition of the duty.
Result
[140] Those parts of the statement of claim which allege negligence by the police in the period up to the point when Mr King was charged cannot stand. The allegations of negligence in respect of the period after Mr King was charged are to go forward to trial. An amended statement of claim reflecting this decision may be filed and served within 30 working days. Costs are reserved.
[141] I make no order at this stage striking out the pleading insofar as it alleges negligence by the police in proceeding on the basis of unreliable evidence generally. I have expressed the view that ordinary assessments by police and prosecutors of the reliability or otherwise of witnesses should not normally be the subject of any duty of care to the accused, but in this case it may not be possible to adequately “separate” allegations of this general kind from specific allegations based on the delay in disclosing full results of the DNA testing. For example, if the court at trial were to conclude that the police were negligent with respect to the disclosure of the
DNA evidence, it is conceivable (I put it no higher) that that finding might be
93 Fyfe, above n 15, at [61].
relevant to the question of whether duties may have been owed more widely, including in respect of the reliability of other evidence in the case.
Associate Judge Smith
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