Lawrence v Attorney-General
[2025] NZHC 719
•31 March 2025
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-807
[2025] NZHC 719
BETWEEN ALEXANDER JOSAIAH THOMAS LAWRENCE
First Plaintiff
AND
LAURA DEARNE CASSIN
Second Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 17–19 March 2025 Appearances:
T D Clee for Plaintiffs
H W Ebersohn and O Kiel for Defendant
Judgment:
31 March 2025
JUDGMENT OF CHURCHMAN J
Introduction
[1] The plaintiffs bring proceedings in the High Court relating to arrests made during the occupation of the grounds of Parliament in February 2022. The plaintiffs allege breaches of s 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA), as a result of the actions of Sergeant Yancy Hawkins. The plaintiffs seek:
(a)Public law damages of $50,000 each plaintiff.
(b)A declaration stating, “[t]he treatment of the first plaintiff by New Zealand Police at Parliament Grounds on 10 February 2022,
LAWRENCE & CASSIN v ATTORNEY-GENERAL [2025] NZHC 719 [31 March 2025]
which included conducting a planking restraint on his head, was excessive and unnecessary on the part of Sergeant Hawkins. As a consequence, it amounted to a failure to treat the first plaintiff with humanity and with respect for the inherent dignity of his person and accordingly breached his rights under s 23(5) of the New Zealand Bill of Rights Act 1990.”
(c)A declaration stating, “[t]he treatment of the second plaintiff by New Zealand Police at Parliament Grounds on 10 February 2022, which included kneeling on her neck, was excessive and unnecessary on the part of Sergeant Hawkins. As a consequence, it amounted to a failure to treat the second plaintiff with humanity and with respect for the inherent dignity of her person and accordingly breached her rights under s 23(5) of the New Zealand Bill of Rights Act 1990.”
[2] The plaintiffs amended their statement of claim at the end of the first morning of the hearing. They discontinued their proceedings against the then first defendant, Sergeant Yancy Hawkins and no question of costs arise. However, costs were not resolved when they discontinued against the then second defendant, former Commissioner of Police, Andrew Coster. By consent, the proceedings were amended to be a claim against the Attorney-General for NZBORA damages.
[3] The defendant now seeks 2B costs up to commencement of the hearing, prior to the plaintiffs amending their pleadings.
[4]The Court must determine the following issues:
(a)Whether there were any breaches of NZBORA.
(b)If there was any breaches of NZBORA, what remedies should follow.
(c)What costs should be awarded.
Background
[5] On 8 February 2022, various groups of people gathered on the grounds of Parliament (“the protest”). Although the many disparate groups involved in the protest had different concerns and agendas, a common feature was opposition to the lockdown policies of the Government during the COVID-19 pandemic. A large number of protestors set up camp in Parliament grounds erecting tents and other structures and intended to occupy Parliament grounds for a significant period. Some of the protestors used aggressive and threatening language towards Police and others carried signs with overt or implied threats of harm to others such as Government officials.
[6] The protest was in breach of a number of the Speaker’s rules which, among other things, directly prohibited the erection of tents or other structures in the grounds of Parliament.
[7] At the request of the Speaker of Parliament, the Police commenced an operation to remove the protesters from Parliament grounds. Repeated requests by megaphone failed to have the effect of persuading the protestors to leave. On 10 February 2022, the Police therefore formed a “skirmish line”1 with the intention of advancing towards the protestors to force them to leave Parliament grounds.
[8] This action was opposed by the protestors who linked arms to form a human chain. The protestors, including both plaintiffs, vigorously resisted the efforts by the Police to get them to leave parliament grounds. The atmosphere was described by the second plaintiff as being very tense.
[9] During the course of their efforts to clear Parliament grounds, officers pulled various protesters through the skirmish line and arrested them. On 10 February 2022, both plaintiffs were present at the protest. They were both pulled through the skirmish line and arrested.
1 A skirmish line is a tactic used by Police in public disorder events. It involves officers forming a line to create a barrier between a crowd and a fixed point. The officers then walk towards the point instructing people to leave the area.
The first plaintiff
[10] After two officers pulled the first plaintiff through the skirmish line, they placed him on the ground and proceeded to attempt to handcuff him. One officer positioned the first plaintiff’s arm behind his back and put his right knee on the first plaintiff’s upper back. Video footage showed that the first plaintiff, who was 17 years old at the time, did not actively resist arrest once he was placed on the ground.
[11] Approximately six seconds after the arresting officers pulled the first plaintiff to the ground, Sergeant Hawkins, began to assist with the arrest. Either at this time or shortly afterwards, the arresting officers had secured the first plaintiff’s arms behind his back. Sergeant Hawkins placed his hands on the right side of the first plaintiff’s face in a head control manoeuvre. Sergeant Hawkins appears to have supported his body weight by holding his body in a “press-up” position for some five seconds. Sergeant Hawkins then dropped to his knees for two seconds before reverting back to the “press-up” position and applying the hold for approximately 10 seconds. At this point a senior sergeant tapped him on the shoulder and he disengaged from any involvement with the first plaintiff.
The second plaintiff
[12] The second plaintiff’s evidence was that she did not want to get arrested. In order to prevent that happening she removed all her clothing other than her underpants and covered her body in coconut oil to make herself slippery and hard to grab.
[13] Sergeant Bentley’s evidence was that the second plaintiff was walking up and down, naked other then for her underpants, yelling over the top of the Police loudspeaker and encouraging non-compliance by other protestors.
[14] In cross-examination the second plaintiff said she wouldn’t describe her actions as yelling at the over the top of Police but as “cheering” and talking with other people on the Police line in an environment that was very noisy.
[15] Video footage of her arrest showed two female officers pulling the second plaintiff through the skirmish line, taking her to the ground, turning her over and securing her arms behind her back.
[16] A person who appears to be an ambulance paramedic attempts to place a blanket or sheet (it is not clear from the video evidence exactly what the item was) over the second plaintiff, presumably out of concern for the second plaintiff’s modesty. The paramedic appears to have done that of their own volition and was not asked to do so by the arresting officers. The paramedic does not communicate with either of the officers or the second plaintiff. Video footage shows the second plaintiff pulling her right arm free and pushing the sheet away before an officer secures her arms again. The sheet remains over the second plaintiff’s head and back. The officers then attempted to handcuff the second plaintiff. They had some difficulty getting the handcuffs on. It is not clear whether this difficulty was contributed to by the coconut oil on the second plaintiff’s arms, unfamiliarity on the part of one officer with the type of handcuffs the other officer was trying to use, or a combination of factors.
[17] Sergeant Hawkins involved himself in the arrest of the second plaintiff around 20 seconds after she was bought to the ground and shortly after the second plaintiff had tried to push the sheet away with her hand. Sergeant Hawkins knelt with one knee on the second plaintiff’s neck/upper back and attempted to assist with the arrest while the two officers secured the second plaintiff’s hands.
Independent Police Conduct Authority Findings – the first plaintiff
[18] The Independent Police Conduct Authority (IPCA) investigated the actions of Sergeant Hawkins in relation to the first plaintiff. In a letter of 4 December 2023, IPCA found:2
The way [Sergeant Hawkins] immobilised the first plaintiff by taking a wide stance and pressing down on his head in a press up position, is not a standard Police tactic.
2 Letter from Judge Kenneth Johnston KC (Independent Police Conduct Authority) to Tudor Clee regarding the Complaint on behalf of Alexander Lawrence — Police actions during arrest on 10 February 2022 (4 December 2023) at [17].
[19] IPCA noted that Police footage showed three officers having the first plaintiff under control and that the first plaintiff was not resisting arrest once placed on the ground. IPCA noted that the lack of resistance should have been immediately apparent to Sergeant Hawkins. Footage showed that the arms of the first plaintiff were secured behind his back at the time or very shortly after Sergeant Hawkins applied the hold. IPCA went on to examine the potential implications of the manoeuvre used by Sergeant Hawkins:3
The head control manoeuvre which Sergeant Hawkins applied was dangerous and high-risk. It is a restraint that required clear communication within the team to be safe and effective. This is particularly because if officers move other parts of the body this can cause significant issues or injuries. The footage we have reviewed does not show there was that clear communication.
[20] Both parties accept the findings of IPCA that the manoeuvre applied by Sergeant Hawkins was neither necessary nor proportionate:4
Other officers had sufficient control of [the first Plaintiff’s] arrest and Sergeant Hawkins’ use of force by controlling [the first Plaintiff’s] head with a press up stance was unnecessary and excessive.
[21] Having viewed the available video footage of the incident, I agree with the conclusions reached by IPCA.
Independent Police Conduct Authority Findings – the second plaintiff
[22] IPCA’s findings in respect of the second plaintiff are contained in a letter dated 10 February 2022. IPCA noted that close examination of the footage showed Sergeant Hawkins’ knee/leg was on the neck and back of the second plaintiff’s head for a short period of time. IPCA found that the available video footage showed the two female officers quickly had the second plaintiff under control and she was lying face down. IPCA found that the second plaintiff was not actively resisting arrest.
[23] It is possible that Sergeant Hawkins interpreted the second plaintiff’s movement of her right hand from behind her back to attempt to push the sheet away from her head as evidence that the arresting officers did not have her fully under
3 At 19.
4 At 20.
control but a careful review of the video evidence supports the second plaintiff’s contention that she was simply trying to remove the sheet from her head.
[24] Both parties to these proceedings have accepted the findings of IPCA which concluded:5
Other officers had sufficient control of the [second plaintiff]’s arrest and Sergeant Hawkins’ use of force by kneeling on [the second plaintiff]’s shoulder/neck/head was unnecessary and excessive.
[25]I agree with and accept this conclusion.
Submissions
Plaintiffs’ submissions
[26] Mr Clee, counsel for the plaintiffs, submits s 23(5) of NZBORA has been breached. This section sets out the rights of persons arrested or detained.
[27] In relation to the first plaintiff, Mr Clee submits that Sergeant Hawkins’ actions were a breach of the Police Guidelines, and the manoeuvre had not been approved by New Zealand Police. He submitted that, as a result of Sergeant Hawkins’ actions, the first plaintiff suffered injury to his jaw and neck. Mr Clee submits that the actions of Sergeant Hawkins were excessive and unnecessary and amounted to a failure to treat the first plaintiff with humanity and with respect for the inherent dignity of his person.
[28] In relation to the second plaintiff, Mr Clee submits that the actions by Sergeant Hawkins were a breach of the Police Guidelines related to positional asphyxiation and that the manoeuvre was not authorised by New Zealand Police. He submits that the actions of Sergeant Hawkins were a deliberate act intended to humiliate the second plaintiff and that the second plaintiff was not treated with humanity and with respect for the inherent dignity of her person.
5 Letter from Judge Kenneth Johnston KC (Independent Police Conduct Authority) to Tudor Clee regarding the Complaint on behalf of Laura Cassin — Police actions during arrest on 10 February 2022 (4 December 2023) at 14.
Defendant’s submissions
[29] The defendant accepts that each plaintiff’s rights under s 23(5) of the NZBORA have been breached. The defendant accepts that when the plaintiffs were pulled from the protest and put on the ground to be handcuffed, they were, for the purposes of s 23(5), deprived of their liberty.
[30] The defendant notes that both plaintiffs were justifiably arrested. Despite expressly accepting that the force used by Sergeant Hawkins was unnecessary and excessive and a breach of the plaintiff’s rights under s 23(5) of NZBORA, the defendant does not agree with the plaintiffs on what the appropriate remedy should be.
[31] The defendant submits that, given the breach is considerably less serious than other cases where public law damages have been awarded, $5,000 and a declaration that the first plaintiff’s right was breached is appropriate to vindicate the breach. The defendant submits that, beyond a declaration, no other remedy should be awarded to the second plaintiff.
[32] Fortunately, although there was the potential for the plaintiffs to suffer serious injury as a result of the unnecessary and excessive force applied, neither sustained significant or long-lasting injuries. The plaintiffs also fairly conceded that some of their injuries would well have been received as part of the vigorous “tug of war” process that occurred when the Police were trying to pull them through the skirmish line and their friends were vigorously trying to pull them in the other direction. Mr Ebersohn, counsel for the defendant points to the fact that there is no medical evidence that would allow the Court to ascertain what injuries were attributable to exactly what conduct.
[33] The defendant also relies on the fact that in relation to both plaintiffs, the duration of the breach of their s 23 NZBORA rights, was very brief being measured in seconds rather than minutes.
[34] The defendant submits there was no malice or conscious breach of the plaintiffs’ rights and that, in relation to the first plaintiff, Sergeant Hawkins did not appreciate that the manoeuvre was dangerous. The defendant refers to
Attorney-General v Van Essen6 where the Court of Appeal determined that the Police’s lack of knowledge that a warrant was defective was relevant to the remedies that were appropriate.
[35] Regarding the second plaintiff, the defendant submits that her case is at the lower end of seriousness. The defendant contends that there was neither any medical record of the second plaintiff’s injuries, nor that she suffered any long-term health consequences because of her arrest. The defendant suggests that the injuries of the second plaintiff were most likely caused by her earlier actions of resisting arrest. The defendant notes that the bruises to the second plaintiff’s arms and legs could not have been caused by Sergeant Hawkins, as he did not apply pressure to these areas. Because of the slipperiness of the second plaintiff’s body, the arresting officers had difficulty holding on to her and, at one point had pulled her by her hair (which appeared to be in the form of dreadlocks). That may also have contributed to or caused the second plaintiff’s sore neck.
[36] The defendant contends that the IPCA Report and subsequent steps taken by the Police were sufficient to vindicate the rights of the plaintiffs. In 2023, the Police conducted a dual criminal and employment investigation in response to Sergeant Hawkins’ use of force during the arrests. However, the Police decided not to charge Sergeant Hawkins. The Police considered that the evidence did not meet the criminal standard and there was “an expectation setting, and lessons learnt conversation”.
Relevant legal principles
The New Zealand Bill of Rights Act
[37]The relevant part of s 23(5) of NZBORA provides:
23 Rights of persons arrested or detained
…
(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
6 Attorney-General v Van Essen [2015] NZCA 22.
[38] Taunoa v Attorney-General is the leading case which provides guidance on s 23(5). In Taunoa, Elias CJ and Blanchard J noted that s 23(5) is engaged by conduct that is regarded as unacceptable in contemporary New Zealand society but not rising to a level deserving to be regarded as outrageous in respect of which s 9 is concerned.7 It captures conduct “which lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so”.8
[39] Section 23(5) imposes “a positive obligation on the state in relation to persons deprived of liberty”.9 The totality of the circumstances may help determine whether a person has been treated with humanity.10 The fact that a breach arises by way of accident rather than deliberately may be relevant to the extent of the state’s culpability, but it does not mean there is no breach.11
Use of force by the Police
[40] Section 39 of the Crimes Act 1961 empowers Police to use “such force as may be necessary” to overcome any force used in resisting an arrest or execution of any sentence, warrant, or process. Hugh Williams J set out the elements of the provision as:12
(a)The person seeking exoneration under s 39 must have used the force under inquiry in the execution of sentences, warrants or processes, making arrests or assisting in those activities.
(b)The execution of the sentence, warrant or process, or the making of the arrest must itself be ‘justified’ or such as to protect from civil or criminal responsibility. That requires an inquiry into the lawfulness and thus the justification for the execution or arrest.
(c)If the execution or the arrest is justified (or the circumstances give rise to protection from criminal responsibility) the justification or protection extends to the use of ‘such force as may be necessary to overcome any force used in resisting such execution or arrest’ but only if:
7 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429, at [11] per Elias CJ and [170] per Blanchard J; and Kelly v Police [2017] NZHC 1611 at [28].
8 Taunoa v Attorney-General, above n 7, at [177] per Blanchard J.
9 B v Waitemata District Health Board [2013] 29 FRNZ 186 (HC) at [74].
10 R v A HC Gisborne T13/96, 15 August 1996.
11 Pere v Attorney-General [2022] NZHC 1069, [2022] 2 NZLR 725 at [40].
12 Young v Attorney-General HC Auckland CIV-2002-404-1981, 23 December 2008 at [181].
(i)the execution or the arrest cannot be ‘made by reasonable
means in a less violent manner’; and
(ii)must not have been effected by force ‘intended or likely to cause death or grievous bodily harm’.”
(emphasis added).
[41] The protections and justifications extend to the use of such force as may be necessary to prevent the person from escaping arrest.13 There is no definition in the Crimes Act as what constitutes “reasonable” or “necessary” force. However, the reasonableness of force is generally regarded as a question of fact, to be decided having regard to the particular circumstances of a case, rather than a formulaic legal test.
Public law damages
[42] Compensation for breach of NZBORA is a public law claim against the state for what has been done in the exercise of the state’s power. Public law damages are generally only available when there is no other appropriate or effective remedy.14 The Court of Appeal has confirmed in Simpson v Attorney-General (Baigent’s Case) that compensation is available as a public law remedy for an unjustified infringement of the guaranteed rights and freedoms of NZBORA:15
The New Zealand Bill of Rights Act, unless it is to be no more than an empty statement, is a commitment by the Crown that those who in the three branches of the government exercise its functions, powers and duties will observe the rights that the Bill affirms. It is I consider implicit in that commitment, indeed essential to its worth, that the Courts are not only to observe the Bill in the discharge of their own duties but are able to grant appropriate and effective remedies where rights have been infringed.
[43] A breach of NZBORA does not automatically give rise to compensation.16 A Judge must determine on a case-by-case basis an appropriate remedy to best vindicate the right infringed upon.17 The remedy granted for a breach of NZBORA should be proportionate to the seriousness of the particular breach.18 The assessment as to
13 Crimes Act 1961, s 40.
14 Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA) at 692 per Casey J.
15 At 702 per Hardie Boys J.
16 At 703 per Hardie Boys J.
17 At 692 per Casey J.
18 Martin v District Court at Tauranga [1995] 2 NZLR 419 (CA) at 428 per Richardson J.
whether compensation is awarded depends “on the nature of the right and of the particular infringement, and the consequences of the infringement”.19 The quantum of compensation as a public law remedy is to “affirm the right, not punish the transgressor”.20
Analysis
NZBORA
[44] The first issue is whether the force Sergeant Hawkins applied when assisting in the arrest of the plaintiffs was necessary and reasonable.
[45] I agree with the IPCA findings that at the time of Sergeant Hawkins intervention the three officers had the first plaintiff’s arrest under control. Video footage shows that the first plaintiff did not resist the officers at any time during his arrest. In light of that, I am satisfied that it was neither necessary nor reasonable for Sergeant Hawkins to undertake a head control manoeuvre of the type used here on the first plaintiff. Sergeant Hawkins actions therefore went beyond what was necessary and reasonable.
[46] In relation to the second plaintiff, I agree with the IPCA findings that the officers had the second plaintiff’s arrest under control either at the time of or shortly after Sergeant Hawkins intervention. I am satisfied that it was not necessary for Sergeant Hawkins to place his knee on the back of the neck/head of the second plaintiff, nor was this action reasonable when the second plaintiff was lying on the ground, particularly when her head was covered by a sheet.
[47] I now consider whether Sergeant Hawkins’ conduct amounted to a breach of s 23(5) of NZBORA.
19 Baigent’s Case, above n 14, at 718 per McKay J.
20 At 703 per Hardie Boys J. Similar comments were also made by the Court of Appeal in Reekie v Attorney-General [2015] NZCA 198 at [21].
[48] In Taylor v Attorney-General, the Court considered the following factors as relevant when determining a failure to comply with statutory standards gave rise to a breach of s 23(5):21
(a)the nature and severity of the treatment;
(b)the duration and frequency of the impugned conduct;
(c)the nature and extent of the impact on the detainee;
(d)any particular vulnerability or condition of the detainee;
(e)the purpose of the treatment; and
(f)the detainee’s own conduct.
[49] Although the Court applied those factors in Taylor to the rights of prisoners under s 23(5), these factors provide useful guidance in my assessment.
[50] The potential adverse consequences of Sergeant Hawkins’ conduct were detailed in the report of Dr Melinek obtained by the Police during their investigations. Dr Melinek was called as a witness by the plaintiffs. In respect of the first plaintiff, she identified the risks of the head manoeuvre as including facial injuries, skull injuries and upper cervical/atlanto-occipital/vertebral artery injuries.
[51] In relation to the second plaintiff, Dr Melinek stated that the “pressure on the head and neck is potentially life threatening in that it could result in a cervical vertebral and disc injury”. In assessing the effect of Sergeant Hawkins’ actions while there was a sheet/blanket covering the second plaintiff’s head, Dr Melinek stated, “[i]f an officer cannot see the subject's face or monitor their breathing, aspiration of foreign material like vomit or debris from the ground can result in a life-threatening situation.”
21 Taylor v Attorney-General (No 3) [2022] NZHC 3170 at [38].
[52] While it is clear that Sergeant Hawkins’ actions did not result in either of the plaintiffs suffering the most serious type of consequences which could have occurred, it is not easy to identify what of the injuries he may have caused. I accept the defendant’s submissions that it is difficult to determine whether the plaintiffs’ injuries had been caused by Sergeant Hawkins and which of injuries could be attributed to the actions of the plaintiffs in vigorously resisting bring pulled through the skirmish line by the arresting officers. The IPCA letter to the first plaintiff, dated 4 December 2023, referred to the hospital as describing the first plaintiff as having “pain to right side of head, right jaw, left side of neck. Blurred vision and deafness in right ear at time — both now resolved”. In the IPCA letter to the second plaintiff, dated 4 December 2023, IPCA reported that the second plaintiff sustained injuries, “being bruises to her arms and legs, a swollen neck and she lost her voice for a period”.
[53] The first plaintiff was particularly vulnerable because he was only aged 17 at the time of the protest. I accept that there are circumstances where Police must use a reasonable and necessary amount of force to arrest and detain someone. In assessing the conduct in question, I acknowledge that the Police were confronted with a difficult and volatile situation on 10 February 2022 while not having the numbers effectively to remove protesters from the grounds of Parliament. However, the plaintiffs were entitled to be treated with humanity and respect for the inherent dignity of the person. That did not happen in this case.
[54] I consider that the nature and potential consequences of the head manoeuvre performed by Sergeant Hawkins to be unacceptable in contemporary New Zealand society. The first plaintiff should not have been subjected to the risk of critical injuries while he was being arrested, especially since he was not physically resisting. I am, therefore, satisfied that the first plaintiff’s rights under s 23(5) were breached under NZBORA.
[55] In relation to the second plaintiff, I am satisfied that Sergeant Hawkins’ actions of placing his knee on her neck and/or head in circumstances where, because of the presence of the sheet, he could not clearly see the second plaintiff’s head or face, to be unacceptable in contemporary society. That resulted in a situation where the Police were unable to monitor the second plaintiff’s breathing and overall condition while
she was lying on the ground covered by the sheet. I am, therefore, satisfied that the second plaintiff’s rights under s 23(5) were breached under NZBORA.
[56] It is important to note that the throwing of the sheet over the second plaintiff was not something that the Police were in any way responsible for. No doubt the medic who did it was well meaning in trying to cover up the second plaintiff’s nakedness, but it was unhelpful. No doubt, had the second plaintiff not removed her clothes as part of her strategy of avoiding arrest, there would have been no reason for a sheet to have been thrown over her and the most severe of the potential risks identified by Dr Melinek would have been avoided.
[57] The breaches of s 23(5) can be described as lacking humanity but falling short of being cruel. Sergeant Hawkins’ conduct during the incident did demean the plaintiffs but was not to such an extent that it was degrading. The application of force in all the circumstances was clearly excessive, but not grossly so.
[58] In light of the reasons above, I accept the parties’ submissions that the plaintiffs’ rights were breached under s 23(5) of NZBORA.
Relief
[59] Having concluded that there were breaches of the right of persons arrested or detained under s 23(5) of NZBORA, I now consider what relief is appropriate. In my assessment, I must consider the full range of remedies in tailoring a response to give effective and appropriate remedy in the circumstances.22
Declaratory relief
[60] Given the parties have agreed to a draft form of the declarations, I consider granting a declaration for the plaintiffs is suitable as part of providing an effective remedy in this case.
22 See Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [12].
Should damages be awarded?
[61] The starting point is that NZBORA damages are discretionary. In Taunoa, Tipping J identified five factors relevant to the question of whether more than a declaration is required to vindicate breaches of NZBORA:23
(a)the nature of the right which has been breached;
(b)the circumstances and seriousness of the breach;
(c)the seriousness of the consequences of the breach;
(d)the response of the defendant to the breach; and
(e)any relief awarded on a related cause of action.
[62] The Court of Appeal in the case of Van Essen24 has also provided some helpful guidance on the approach to remedies in NZBORA cases. This can be summarised as:
(a)What relief is required to provide an effective remedy for a breach of rights depends on all the circumstances including a consideration of the non-monetary relief that can be or has been given.
(b)Only if a breach requires something more than the non-monetary relief can an award of damages be considered necessary.
(c)In most cases where damages have been awarded, the conduct involved physical restraint, direct infliction of physical harm or a prolonged or significant deprivation of liberty.
(d)The fact that there has been an independent investigation by a body such as IPCA can provide significant vindication of rights particularly
23 Taunoa v Attorney-General above n 7, at [305] per Tipping J.
24 Above n 6.
where steps have been taken by Police to change their practices or implement recommendations contained in a report.
(e)The fact that an internal investigation has been undertaken, irrespective of the outcome of the investigation, can, in appropriate cases, be regarded as vindicating rights.
[63] In reference to the factors identified by Tipping J in Taunoa, and by the Court of Appeal in Van Essen, I take the following into account in respect of the breach of the plaintiffs’ rights:
(a)The nature of the right set out in s 23(5) is important. The right provides minimum standards for detainees who are in a vulnerable situation.
Vindication of these interests is central to a democratic society.25
(b)The circumstances of the breach occurred in the context of a protest and an operation to remove protesters from Parliament grounds. I consider that the breach was serious and the need for deterrence to be important. Where Police are empowered to use a reasonable level of force against members of the public during an arrest, officers ought to take care that they do not cross the threshold and use excessive force.
(c)I accept the defendant’s submissions that none of the breaches were deliberate or in bad faith. Although Mr Clee attempted to make out a case to the effect that Sergeant Hawkins’ acts were deliberate and that he intended to humiliate the plaintiffs, that was not substantiated on the evidence. From the evidence it is clear that Sergeant Hawkins was attempting to assist the officers in both arrests as effectively as possible. In relation to the first plaintiff, he believed that his manoeuvre was the “safest, quickest and most reasonable method” to enable the other officers to handcuff the first plaintiff. There is no doubt that the restraining and arresting of the plaintiffs needed to be done as quickly as possible. The videos show that there was a real risk of both the
25 See Gorgus v Attorney-General [2023] NZHC 2313 at [197].
plaintiffs and arresting officers being trampled and potentially seriously injured as the skirmish line surged back and forward over the top of them. In relation to the second plaintiff, although I have found that, once on the ground, she did not resist arrest, it would not have been unreasonable for Sergeant Hawkins to have interpreted her movement of her right arm from behind her back to up near her head in an attempt to remove the sheet form her head, as evidence that the arresting officers did not yet have her under full control.
(d)The videos also showed Sergeant Hawkins acting in a calm and measured manner throughout. In relation to the arrest of the first plaintiff, when tapped on the shoulder by a Senior Sergeant he disengaged promptly. His engagement with each of the plaintiffs only lasted for a matter of seconds and could not be described as amounting to a prolonged or significant deprivation of liberty.
(e)The Police initiated a criminal investigation regarding the plaintiffs’ complaint but considered there was insufficient evidence to charge Sergeant Hawkins with assault. The Police also initiated an employment investigation into Sergeant Hawkins actions and concluded that an educative response was required. IPCA have released a report outlining its findings about the use of force and comments regarding various Police decisions. The defendant has accepted the IPCA findings of acknowledging the use of excessive force by Sergeant Hawkins and did not oppose a modest award of damages to the first plaintiff. Although the “press-up” type of restraint technique used by Sergeant Hawkins on the first plaintiff was never formally approved by the Police, it was apparently taught at the Police Training College. As a result of this incident and the subsequent investigation, this is no longer the case. The Police have also reinstated a Training Approval and Quality Board to ensure that inappropriate restraint techniques are not used in the future.
[64] When these factors are weighed together, I consider that, in respect of the first plaintiff a declaration is not sufficient to provide effective redress in this case and that some financial compensation is required. The main differentiating facts between the two plaintiffs are that Sergeant Hawkins’ action in respect of the first plaintiff represented a systemic failure in relation to training and that the first plaintiff, because of his youth, was particularly vulnerable.
[65] In relation to the second plaintiff, I agree with the defendant’s submissions that the breach is less serious than the breach of the first plaintiff’s rights. My view is that the knee restraint performed by Sergeant Hawkins is less serious than the head manoeuvre performed on the first plaintiff. There was no systemic failure involved and the second plaintiff was not vulnerable in the way the first plaintiff was.
[66] I also have some regard to the fact that a sheet ended up over the second plaintiff’s head was not something that the Police were responsible but was an indirect consequence of the strategy adopted by the second plaintiff of taking her clothes off and covering herself in coconut oil to try to avoid arrest.
[67] As noted by Blanchard J in Taunoa, a declaration of breach is unlikely to be sufficient vindication, unless the breach was of short duration and does not involve harm to the plaintiff.26 As was the case with the first plaintiff, the breach was for a short duration for the second plaintiff and there is no evidence that the second plaintiff’s injuries were caused by Sergeant Hawkins’ actions as opposed to the second plaintiff’s attempts to resist being pulled through the skirmish line. My view is that the subsequent actions of the Police and the IPCA in combination with a declaration are sufficient to vindicate her rights.
What sum of damages should be awarded to the first plaintiff?
[68] The defendant has referred me to cases where there was a serious breach of s 23(5). In Taunoa v Attorney-General, the plaintiff was awarded $35,000 for being subject to a behaviour modification regime for close to 1,000 days.27 In Falwasser v
26 Taunoa v Attorney-General, above n 7, at [267] per Blanchard J.
27 Taunoa v Attorney-General, above n 7, at [374].
Attorney-General, the plaintiff was awarded $40,000 as a result of suffering significant injuries after four officers used pepper spray 61 times and batons against the plaintiff while he was in a Police cell.28
[69] I agree with the defendant’s submission that the breach to the rights of the first plaintiff does not reach the level of severity in Taunoa or Falwasser. The first plaintiff was not subject to the breach for a prolonged period of time or suffered the extent of harm outlined in those cases. Therefore, I reject the plaintiffs’ submissions that this Court should award $50,000 in public law damages. Mr Clee’s submissions do not refer to any authorities that would support such a conclusion, nor is it obvious what the basis is for his calculation of the claimed sum.
[70] The defendant has referred me to Gorgus v Attorney-General and Attorney-General v Udompun as appropriate comparators in cases involving less serious breaches.29 In Gorgus, Edwards J awarded $3,000 damages in respect of two strip searches conducted in front of an excessive number of officers and either CCTV or an officer’s body camera.30 In Udompun, the Court of Appeal considered an award of $4,000 was sufficient to compensate an illegal immigrant who was detained for some 23 hours pending deportation.31 The officers did not provide the plaintiff with sanitary products (despite being notified of her need for them) or a change of clothing. The officers also delayed in providing food to the plaintiff. This can be contrasted with the treatment of the second plaintiff by the Police after her arrest. The second plaintiff’s evidence attempted to portray the conduct of the Police after her arrest in a poor light. Her evidence in chief said:
[27] I was only asked if I was okay after I had a panic attack when being told to enter a box in the paddy wagon.
[28] This was by an older gentleman officer who helped to calm my nerves so I could enter the paddy wagon.
[71] This was contracted by the evidence of Sergeant Miriam Bentley, who was one of the two arresting officers. Her evidence was:
28 Falwasser v Attorney-General [2010] NZAR 445 (HC).
29 Gorgus v Attorney-General above n 25 and Attorney-General v Udompun [2005] 3 NZLR 204 (CA).
30 Gorgus v Attorney-General, above n 25, at [203].
31 Attorney-General v Udompun, above n 29, at [167]–[178].
…I took (the second plaintiff) to the side away from the immediate vicinity of the protest. I explained why she had been arrested, her rights and I asked her if she had even been arrested before. She looked scared and began exhibiting signs of panicking. I sat with her for some time so she could relax and calm down before going into the custody van.
[72] Although Sergeant Bentley was cross-examined extensively on other aspects of her evidence with which the second plaintiff disagreed, she was not cross-examined on this passage at all. I therefore accept her evidence on this point in preference to that of the second plaintiff.
[73] There have been a number of cases where plaintiffs who have been unlawfully arrested and/or falsely imprisonment have been awarded damages of $5,000. In Attorney-General v Hewitt, the plaintiff was awarded $5,000 for an unlawful and arbitrary arrest and false imprisonment for 7.5 hours.32 In Craig v Attorney-General, the plaintiff was awarded $5,000 for wrongful arrest and false imprisonment for a period of two hours.33 In Attorney-General v Niania, the plaintiff was awarded $5,000 for false imprisonment for 5.5 hours.34
[74] The courts have discussed damages for a breach of s 23(5) for the use of excess force by a police officer in dealing with a person under arrest. In Archbold v Attorney- General, a police officer assaulted the plaintiff with significant violence while he was handcuffed.35 The officer had the plaintiff in a headlock, put his fingers in the plaintiff’s eye and swung the plaintiff, head first, into the side of the house. On the way to the police station, the officer sat on top of the plaintiff and applied his knuckle hard on the plaintiff’s ear. William Young J noted that if he had not found that exemplary damages were available, he would have awarded public law compensation in the sum of $15,000.36
[75] In Falwasser v Attorney-General, the inappropriate use of pepper spray by an officer at various intervals over a 20-minute period was found to be a breach of
32 Attorney-General v Hewitt [2000] 2 NZLR 110 (HC).
33 Craig v Attorney-General (1986) 2 CRNZ 551 (HC).
34 Attorney-General v Niania [1994] 3 NZLR 106 (HC).
35 Archbold v Attorney-General [2003] NZAR 563 (HC) at [68]–[69].
36 At [70].
s 23(5).37 Stevens J found that $30,000 was appropriate to “cement the Court’s and society’s denunciation of the conduct in the case”.38
[76] I do not consider Falwasser or Archbold to be useful comparators. The plaintiffs in those cases endured a significant amount of physical abuse for a much longer period of time than the first plaintiff.
[77] I consider that $7,000 is an appropriate sum to award the first plaintiff to effectively vindicate the breach of s 23(5). In suggesting an appropriate level of damages should amount to $5,000 I think that the defendant has not properly considered the differences between this case and the breaches in Udompun, Gorgus and the unlawful detention cases. Although the conduct in Gorgus and Udompun was humiliating and unacceptable in contemporary society, the plaintiffs were not subjected to a dangerous manoeuvre with potentially life-threatening consequences as was the first plaintiff here.
[78] The breach of the first plaintiff’s right is not as prolonged as the breaches in Gorgus or the unlawful detention cases. I have reviewed the video footage and the manoeuvre performed by Sergeant Hawkins lasted, at best, approximately 10 seconds.
[79] I consider a greater award of damages than in Gorgus, Udompun and the unlawful detention cases, is appropriate. I also consider that the amount awarded should reflect the youth of the first plaintiff at the time of the breach.
[80] I agree with the defendant’s submissions that the first plaintiff’s rights, in combination with a declaration, have been vindicated by the IPCA report and the various investigations and charges discussed above. A modest award of damages is also appropriate.
[81] In relation to the second plaintiff, for the reasons explained above, the breach of her rights was less serious. The IPCA report, coupled with the declaration as sufficient to vindicate her rights.
37 Falwasser v Attorney-General, above n 28, at [73]–[74].
38 At [123].
Costs
[82] I have also considered the implications of costs award when standing back and looking at the overall circumstances. The proceedings, as originally drafted and pursued up until the end of the first morning of this hearing, were ill-considered and doomed to failure. The plaintiffs elected to proceed with their claims, as originally drafted, long after it had been pointed out to them that they faced insurmountable hurdles.
[83] In the ordinary course of events, on a discontinuance, the original second defendant would have been entitled, pursuant to r 15.23 of the High Court Rules 2016, to the costs of and incidental to the proceeding up to the point of discontinuance. That would have been a substantial sum. Beyond the declarations offered by the defendant promptly on the filing of the amended pleadings, the first plaintiff has obtained minimal success (an extra $2,000 damages) and the second plaintiff no further success at all in addition to the relief offered by the defendant. Any costs award in their favour relating to the period after they amended the proceedings would be modest at best.
[84] Standing back and looking at all of the circumstances I have concluded that I can take into account, in considering whether any compensatory damages should be awarded to the second plaintiff, and what the damages for the first plaintiff should be, what I propose to do with costs.39 I am also mindful for the Courts reluctance to impose substantial costs awards against plaintiffs seeking remedies for breaches of NZBORA in case it deters plaintiffs with valid claims from potentially pursuing them.40
[85] I have concluded that, on the particular facts of this case, it is appropriate for costs to lie where they fall.
Result
[86] I find that the actions of Sergeant Hawkins’ amounted to a breach of the first and second plaintiff’s right under s 23(5) of NZBORA.
39 This was acknowledged by the Court in Attorney-General v Udompun above n 29 at [186].
40 See Attorney-General v Udompun above n 29 at [186].
[87]I make the declarations set out in [1](b) and (c) above.
[88]I award NZBORA damages to the first plaintiff in the sum of $7,000.
[89]All parties’ costs are to lie where they fall.
Churchman J
Solicitors:
Koo Telle, Auckland for Plaintiffs
Crown Law/Te Tari Ture o te Karauna, Wellington for Defendant
0
7
0