Liston-Lloyd v Commissioner of Police
[2015] NZHC 2614
•22 October 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2014-485-1037 [2015] NZHC 2614
UNDER the Judicature Amendment Act 1972 IN THE MATTER OF
an application for review
BETWEEN
JEANE BARBARA LISTON-LLOYD Applicant
AND
THE COMMISSIONER OF POLICE Respondent
Hearing: 10 June 2015 Appearances:
A Shaw for the Applicant
K Laurenson for the RespondentJudgment:
22 October 2015
JUDGMENT OF MALLON J
Table of Contents
Introduction ....................................................................................................................................... [1] The facts ............................................................................................................................................. [5] Background..................................................................................................................................... [5] The circumstances in which the sample was obtained.................................................................... [9] What happened to the sample ....................................................................................................... [22] Unreasonable search and seizure? ................................................................................................. [28] Unreasonable detention? ................................................................................................................ [33] The legal principles for NZBORA damages.................................................................................. [41] Approach in relation to a s 21 breach .......................................................................................... [41]
A different approach for a s 22 breach? ....................................................................................... [48] My assessment in this case .............................................................................................................. [53] Result ................................................................................................................................................ [63]
Introduction
[1] The issue before me is whether Ms Liston-Lloyd should be awarded damages as a result of the police unlawfully taking from her a buccal (oral) DNA sample
LISTON-LLOYD v THE COMMISSIONER OF POLICE [2015] NZHC 2614 [22 October 2015]
pursuant to the Criminal Investigations (Bodily Samples) Act 1995 (the Act). Ms Liston-Lloyd alleges that the police breached her rights under the New Zealand Bill of Rights Act 1990 (the NZBORA) and that an award of damages is necessary to provide an effective remedy for those breaches.
[2] This is the second part of Ms Liston-Lloyd’s judicial review proceeding, which by agreement of the parties has been heard in two parts. In the first part I determined that the sample was unlawfully obtained.1 This was because I considered that the offence on which she was convicted was not a “relevant offence” for which a databank compulsion notice, requiring her to provide a DNA sample, could have been issued. There was also an error in the notice in the description of the offence to which it related. A declaration was issued and an order was made for the destruction of the sample.
[3] In this second part of the proceeding I am to determine whether this illegality gave rise to a breach of Ms Liston-Lloyd’s right under the NZBORA to be secure from unreasonable search and seizure (s 21). Ms Liston-Lloyd contends that it was and that an award of damages is necessary to provide an effective remedy. The Commissioner of Police (the Commissioner) contends that the illegality was technical in nature and, as such, it did not amount to a breach of Ms Liston-Lloyd’s right under s 21. The Commissioner also contends that if there was a breach, it does not require a further remedy beyond the declaration already granted by this Court.
[4] Ms Liston-Lloyd also contends that her right to be free from unlawful and arbitrary detention (s 22) was breached and that damages must also be awarded for this breach. This concerns the actions of the police in coming to Ms Liston-Lloyd’s home to enforce the notice on a date earlier than that specified in the notice.2 The
Commissioner contends that there was no breach. He also contends that if there was
1 Liston-Lloyd v Commissioner of Police [2014] NZHC 2615.
2 This was first raised as an issue after my decision on the first part of the s 21 claim. The
Commissioner was granted leave to cross examine Ms Liston-Lloyd about what the police said to her as to whether she was required to provide the sample at that time, and what would happen if she refused. This was not opposed by her counsel because it arose in the context of the late application to amend the pleading to include the s 22 claim. In light of that opportunity, the Commissioner did not claim to be prejudiced by this late amendment to the pleading. In the absence of prejudice I considered it appropriate in the interests of justice to grant leave to rely on this ground.
a breach, it was temporary and minimal and compensation is accordingly not appropriate.
The facts
Background
[5] Ms Liston-Lloyd was convicted on four counts of selling methylone, a class C drug, to a person over the age of 18 years. As a result of those convictions she was served with a databank compulsion notice on 19 March 2010.3 This notice required her to give a bodily sample to be kept on a DNA profile databank (the databank).
[6] Ms Liston-Lloyd initially intended to challenge the notice on the basis that she had not been convicted of a “relevant offence”. The police legal advisor disagreed with that view in discussions with Ms Liston-Lloyd’s lawyer at the time. Her lawyer accepted the police view and as a result Ms Liston-Lloyd decided not to proceed with a review hearing. By that time the date in the notice for providing the sample had passed.
[7] A second notice was issued on 21 May 2010. The notice ran to six pages and provided details under various headings about what was required, what Ms Liston- Lloyd’s rights were in connection with the notice, how the sample could be taken, and what would happen to it once it was taken. The first page of the notice stated (amongst other things) that Ms Liston-Lloyd:
must attend to give a bodily sample … [a]t Wellington Central Police Station between 7pm and 8pm on 06/07/2010 unless you and a member of the Police agree to vary the place or vary the date to an earlier date, or both.
[8] The third page of the notice stated (amongst other things):
Can I be forced to give a bodily sample?
If you refuse to give a bodily sample in compliance with this notice, a member of the Police may use or cause to be used reasonable force to assist a suitably qualified person to take a bodily sample. If you are in a penal institution, a prison officer may also assist the member of the Police.
If force is used, the bodily sample will be taken by a blood sample from a fingerprick.
The circumstances in which the sample was obtained
[9] The affidavit evidence about the circumstances in which the sample was obtained was to some extent in dispute. The Commissioner did not seek to adduce further evidence responding to Ms Liston-Lloyd’s evidence, it being accepted that Constable Stokes (who is no longer a police officer) would be unable to add to his affidavit evidence, which was based on his records rather than any independent
recall of the events. Ms Liston-Lloyd was cross examined on her evidence.4
[10] Ms Liston-Lloyd was living with her parents at the time and was subject to a curfew between 7 pm and 7 am, pursuant to the community detention sentence she was serving for the class C offending. During the day she was working at a café. Because of the curfew, Ms Liston-Lloyd says that there should have been no difficulty serving the notice on her in the evening from 7 pm.
[11] Constable Stokes was tasked with serving the notice on Ms Liston-Lloyd. On
3 June 2010 at 10.15 am he went to Ms Liston-Lloyd’s parents’ address to serve the notice. She was not at home because she was working. He was given a telephone number to make arrangements to serve the notice. This attempt to serve the notice is recorded in Constable Stokes’ job sheet. Ms Liston-Lloyd’s affidavit evidence is consistent with this.
[12] The evidence is in dispute about whether the next contact occurred by telephone or in person. Constable Stokes’ evidence is that he telephoned Ms Liston- Lloyd at 2.30 pm on 7 June 2010 but that she was not at home. Again this evidence is based on the note he made in his job sheet. Ms Liston-Lloyd’s evidence is that her parents told her that the police had visited her again at a time when she was at work. Although the dispute is not particularly material, I prefer Constable Stokes’ evidence that the contact was by telephone. His job sheet is likely to be more reliable than Ms
Liston-Lloyd’s recall four years later5 on the detail of whether her parents told her that the police had visited or telephoned on this second occasion.
[13] Constable Stokes’ evidence, based on his job sheet, is that at 9.20 pm on 7
June 2010 he again telephoned, spoke to Ms Liston-Lloyd and arranged a time for the taking of the sample between 9.30 pm and 10.30 pm that evening. Ms Liston- Lloyd does not recall this conversation. However I accept that this occurred because the police job sheet is likely to be more reliable that Ms Liston-Lloyd’s recall four6 and five7 years later.
[14] Constable Stokes attended Ms Liston-Lloyd’s address that night with Constable Sullivan. Constable Stokes’ evidence, on the basis of his report of this visit, is that he confirmed Ms Liston-Lloyd’s identity and served her with the databank compulsion notice. In addition to the notice he gave Ms Liston-Lloyd three further documents:
(a) An agreement acknowledging that she agreed to vary the time for taking the sample.
(b)A notice under s 50 of the Act (concerning her rights to have someone present when the sample is taken).
(c) An explanation pursuant to s 39(2)(c) of the Act. This document set out 11 points which an officer is directed to ensure that the person understands. This includes that “if the suspect refuses to allow a bodily sample to be taken, a sample may be taken by force under section 54(2) and, if applicable, section 54(3).”
[15] It is clear that Ms Liston-Lloyd signed the agreement to vary the date although she does not specifically recall doing so. By the terms of this agreement,
Ms Liston-Lloyd confirmed that she was served with a databank compulsion notice
5 Her affidavit was affirmed on 1 July 2014.
6 The date of her affidavit.
7 When she was cross examined.
on 7 June 2010 requiring her to supply a DNA sample on “07/06/2010”;8 stated that she did not wish to review the notice; consented to supply a DNA sample prior to the date specified in the notice; and agreed to supply the DNA sample on 07/06/2010 at her parents’ address.
[16] Ms Liston-Lloyd’s evidence is that her mother answered the door and called out to her. Ms Liston-Lloyd went into the hallway where she could see two police officers, one male and the other female. She went into the lounge with them. No one else came into the lounge. She says that the officers seemed annoyed with her because they had made several attempts to contact her. She says that she did not know why they were annoyed because she was available at home during curfew hours, as the police ought to have known.
[17] Ms Liston-Lloyd recalls looking at a piece of paper that explained that the police were allowed to take her DNA, but she did not read it in any detail. She recalls the police telling her that she was lucky not to be in more trouble because she had failed to turn up at the police station in response to the first notice. Ms Liston- Lloyd did not reply to this but assumed that the two officers were unaware of the discussions between her lawyer and the police about the first notice. She says that the police said that they were going to take a DNA sample from her at that time. They produced a ziploc plastic bag with a swab.
[18] Ms Liston-Lloyd says that she asked what would happen if she did not cooperate. She says she was told that they would arrest her and take a sample from her by force. This was said in a somewhat threatening manner and she imagined that this would be a horrible experience. She told the police that she would cooperate. Constable Stokes does not remember Ms Liston-Lloyd asking what would happen. He says that it is possible that she was told that she would be arrested, and that a sample would be taken from her by force if she did not cooperate, because that was his understanding from the documents she was given to read. He does not believe it
would have been said in a threatening way.
8 Note that this appears to be a typographical error as the notice required the sample to be
provided on “06/07/2010”.
[19] It was put to Ms Liston-Lloyd in cross examination that she must have understood that she could decline to provide the sample at that time because the documents said so, and because she had earlier had the opportunity to obtain legal advice. Ms Liston-Lloyd said that she did not understand she could decline to provide the sample at that time. She said that her lawyer had told her that there were no further options open to her to oppose the notice and that she should give her DNA to the police. She understood, from what the police officers told her rather than from the paperwork, that she had to provide the sample that evening or she would be arrested.
[20] I accept Ms Liston-Lloyd’s evidence about these matters. It was not contradicted by evidence from the police except to the extent that Constable Stokes believes their manner was non-threatening. As to that, Ms Liston-Lloyd considered the officers were brusque and business-like throughout their visit. Constable Stokes does not remember the tone of the interaction but believes that they would have acted in a professional, business-like manner. Ms Liston-Lloyd was inexperienced in her dealings with police and did not want to provide her DNA sample. I consider it likely that the officers’ business-like approach came across to Ms Liston-Lloyd as threatening when they told her that she could be arrested if she did not comply.
[21] As to the taking of the sample, Ms Liston-Lloyd’s evidence is that the female officer handed her the swab. Ms Liston-Lloyd rubbed it around the inside of her mouth for about 30 seconds and handed it back to her. The female officer asked Ms Liston-Lloyd to open her mouth so that she could look inside. The female officer did not touch her while doing this. Both officers left shortly after the sample was taken. Constable Stokes does not remember the female officer looking into Ms Liston- Lloyd’s mouth and says that doing so is not standard procedure. His documentary record states only that Ms Liston-Lloyd was compliant when giving the DNA sample. I will proceed on the basis that the female officer did look inside Ms Liston- Lloyd’s mouth as she described in the absence of contradictory evidence but, in my view, this detail is not material to the issue of whether damages ought to be awarded.
What happened to the sample
[22] DNA profiles, extracted from DNA samples obtained by police, are stored on the databank. The databank is maintained by the Institute of Environmental Science and Research (ESR). The databank holds approximately 152,044 DNA profiles.9
The police have no direct access to the databank.
[23] A limited number of ESR staff have access to the databank. They may access it to respond to requests made by persons about their own DNA samples.10 They may also access it in response to police requests to check samples against profiles already in the databank. Such requests are made where the police obtain a DNA sample as part of an investigation and want to search for a match in the databank. The police forward the sample to ESR staff who search the databank to see whether a match exists. The databank is searched in this way approximately 250 times per
year.
[24] In the present case, the DNA sample was taken from Ms Liston-Lloyd on 7
June 2010 and forwarded by the police to ESR. ESR staff extracted Ms Liston- Lloyd’s DNA from the physical sample and saved an electronic profile of it on the databank. They then destroyed the physical sample. From this time, Ms Liston- Lloyd’s DNA profile was amongst the profiles held on the databank. This profile was destroyed by 31 October 2014 in accordance with my order for destruction made on 23 October 2014.11 ESR’s records relating to that profile were also destroyed. This meant that Ms Liston-Lloyd’s DNA profile was stored on the databank for four years, four months and 24 days.
[25] In addition, the police’s National Intelligence Application (NIA) recorded that a DNA sample from Ms Liston-Lloyd was taken. The NIA did not contain a profile of the DNA. The NIA now records that the sample was destroyed as a result of this Court’s order. From 2010 to 2014 Ms Liston-Lloyd’s NIA record was accessed by police staff on 27 occasions. It is not possible to tell what this access
was for on each occasion. It appears, however, that the majority of instances were
9 This was the number as at 30 June 2014.
10 Pursuant to the Criminal Investigations (Bodily Samples) Act 1995, s 27.
11 Refer [2] above.
connected with the original taking of the sample, Ms Liston-Lloyd’s Privacy Act
1993 complaint and this judicial review proceeding. There was no direct access to
Ms Liston-Lloyd’s NIA record by non-police staff.
[26] Prior to commencing this proceeding, Ms Liston-Lloyd made a complaint to the Privacy Commissioner. The Privacy Commissioner investigated the complaint but determined that it was not the appropriate agency to make a decision on whether the databank compulsion notice was issued appropriately. As part of that process Ms Liston-Lloyd was advised that the Privacy Commissioner needed to know what adverse consequences she had suffered as a result of the actions of the police. Her response was as follows:
Ms Liston-Lloyd feels: uncomfortable with the police owning a part of her (her DNA data) in circumstances where they are not entitled to hold that information; that she has been put on par with serious criminals such as rapists; and the police are bending the law in an effort to retain her DNA data.
[27] It is accepted that this is an accurate description of how she felt.
Unreasonable search and seizure?
[28] The Commissioner relies on the views of Blanchard and Tipping JJ in Hamed v R and the Court of Appeal decision in R v Williams that an unlawful search is not necessarily an unreasonable search.12 Counsel for the Commissioner notes that I have already determined that one error in the notice (naming the wrong offence) was a technical error and was unlikely to have caused Ms Liston-Lloyd any difficulty in understanding what was required of her, why it was required of her, and what rights she had.13 Counsel submits that the other error (that there was no “relevant offence”) was also a technical error made in good faith.
[29] Counsel for Ms Liston-Lloyd refers to Taylor v Attorney General.14 That was a High Court case similar to the present in that it involved a DNA sample obtained
12 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [174] (per Blanchard J) and [226] (per
Tipping J). Compare with Elias CJ at [16]. See also R v Williams [2007] NZCA 52, [2007] 3
NZLR 207 at [24].
13 Liston-Lloyd v Commissioner of Police, above n 1, at [49].
14 Taylor v Attorney-General HC Auckland CIV-2010-485-2226, 19 July 2011.
by buccal swab pursuant to an unlawful order.15 Mr Taylor had committed an offence rendering him liable to provide a bodily sample under the Act. It became necessary to obtain an amended order for the taking of the sample. By the time that was done, the six month statutory time limit for taking a sample had expired. In that case the Attorney-General conceded that the sample had been taken unlawfully and that this was also an unreasonable search and seizure. The High Court Judge proceeded on the basis of that concession.16
[30] In this case the error as to whether there was a “relevant offence” was technical only in the sense that the law in relation to qualifying class C offences involved difficult issues of statutory interpretation.17 This is illustrated by the fact that when the first notice was issued, a police legal adviser and Ms Liston-Lloyd’s lawyer at the time discussed the issue. They accepted that the offences qualified. Ms Liston-Lloyd’s new lawyer subsequently took a different view, which I agreed
with in my earlier judgment.
[31] However a good faith error in issuing the notice, made because the law was difficult, is not a technical error of the kind contemplated by Blanchard and Tipping JJ in Hamed v R or by the Court of Appeal in R v Williams. It differs from cases where there is a lawful basis for a search but some minor error has been made in documenting the warrant which authorises the search.18 It was a material error. It meant that the police obtained a DNA sample from Ms Liston-Lloyd under
compulsion when there was no lawful basis for doing so. In my view,
15 The case was also similar to the present one procedurally in that Mr Taylor initially obtained a declaration that the sample was unlawfully taken and subsequently sought further declarations, including that the sample was given in breach of his right to be free from unreasonable search and seizure (s 21), and damages for that breach. However, in that case the further declarations and damages were sought in separate proceedings rather than determined in an agreed two -part process as occurred here.
16 At [50].
17 As discussed in my earlier judgment, the maximum penalty for the offence under the Misuse of Drugs Act 1975 differed depending on whether the person was convicted summarily or on indictment. Although the charges against Ms Liston-Lloyd were brought on indictment I
determined that she was summarily convicted because the District Court Judge accepted
jurisdiction under the then applicable procedure, and it was that decision which characterised the conviction.
18 An example is where a search warrant is approved but where the issuing officer overlooks signing the warrant, which was one of the errors made in the warrant considered in Attorney- General v Van Essen [2015] NZCA 22, (2015) 10 HRNZ 155 at [92] to [94].
notwithstanding that it was an error made in good faith, it meant that the search and seizure were unreasonable and in breach of Ms Liston-Lloyd’s right under s 21.
[32] On the other hand I consider that the error in relation to the description of the drug was a minor and technical one similar to, for example, making a typographical error in the spelling of a person’s name or address. As I have earlier found, this error was unlikely to have caused any prejudice to Ms Liston-Lloyd. In and of itself I consider that it did not give rise to an unreasonable search and seizure as contemplated by the authorities referred to above. Even if it did, the error was too minor to require any damages on top of those that might be awarded in respect of the other error.
Unreasonable detention?
[33] A detention can arise if a person has a reasonably held belief, induced by police conduct, that he or she is not free to leave.19 Counsel for Ms Liston-Lloyd submits that this was the case from the moment the police arrived at Ms Liston- Lloyd’s house and began enforcing the second compulsion notice.
[34] The databank compulsion notice required Ms Liston-Lloyd to attend at the Wellington Central Police Station on 6 July 2010 to provide the sample. If Ms Liston-Lloyd refused to comply with the notice the police could use reasonable force to assist a qualified person to take the sample. The police sought to obtain the sample prior to the 6 July 2010 date. They could do so only by agreement.
[35] As discussed above, the police telephoned Ms Liston-Lloyd at 9.20 pm on
7 June 2010 to arrange to come to her house that evening to take the sample. On arrival at the house at 9.30 pm she was given the documents described above.20
Those documents explained that she was not required to provide the sample until 6
July 2010 unless she agreed to do so. She signed an agreement to supply the sample
that evening at her parents’ house. On the face of it, therefore, there was no
19 R v M [1995] 1 NZLR 242 (HC) at 245; Everitt v Attorney-General [2002] 1 NZLR 82 (CA) at
[7].
20 Refer [14] above.
detention at her parents’ house that evening. The police were there by agreement and
the sample was taken at that time by agreement.
[36] Ms Liston-Lloyd says that she did not read the documents she was given in any detail. She knew that she had to provide her DNA. Her lawyer had previously advised her that there was no further course of action. As discussed above, I accept Ms Liston-Lloyd’s evidence about the events at her house. In particular I accept that, despite what the notice and agreement said, she understood from what the police told her that she was required to provide the sample at that time, and that she would be arrested if she refused. Her understanding was induced by police conduct, namely what they said and the manner in which they did so. The question is whether her belief that she would be arrested if she refused was reasonable in light of the documents she was given to read.
[37] On the one hand there are factors which support a conclusion that the belief was reasonable. She was inexperienced in her dealings with police. The police appeared to her to be annoyed that it had taken a few attempts to contact her. They did not seem to know the history relating to the first notice. They came to her parents’ house in the evening for the purpose of obtaining the DNA sample. The documents she was given to read were lengthy. The police seem not to have made it clear, in response to her question, that she would only be arrested if she did not agree to provide the sample earlier than the date specified in the notice, and then also failed to attend at the police station on the specified date. That is, Ms Liston-Lloyd’s general question as to what would happen if she did not cooperate was met with a general response that she would be arrested and the sample would be taken from her by force. Ms Liston-Lloyd understood from what was said that this would be what would happen at her parents’ house that night.
[38] On the other hand there are factors that support a conclusion that her belief was not a reasonable one. The documents were available to Ms Liston-Lloyd to read. Although the notice ran to several pages it stated on the first page that she must provide a sample at a police station on 6 July 2010, unless she and a police officer agreed to vary that date. The agreement she signed varying that detail was a brief document. It contained an error about the date on which she was required
under the notice to supply the sample (stating this to be “07/06/2010” which was in fact the date the officers were at Ms Liston-Lloyd’s house by agreement). However the agreement was headed “Variation Agreement” and it stated “I consent to supply a DNA sample prior to the date specified in the notice …”.21 The terms of the agreement were therefore plain, even from a cursory read and despite the error about the date specified in the notice. Moreover, this was the second databank compulsion
notice she had seen. She had consulted her lawyer about the first notice and had begun a process to review it. On balance, I consider that these matters outweigh the other matters. Accordingly I consider that her belief that she was not free to leave if she did not comply with the notice at that time was not reasonable.
[39] The Commissioner made the further submission that, even if Ms Liston- Lloyd’s belief was reasonable, not every restraint on a person’s freedom of movement amounts to an arbitrary detention under s 22 of the NZBORA. Whether it does depends on the circumstances of the case and involves a consideration of the nature, purpose, extent and duration of any restraint.22 The Commissioner refers to the view of Richardson J in Police v Smith and Herewini that a request for a blood sample from a person in hospital after a road accident did not amount to a detention.23 That was because the restraint was temporary and minimal. However
that was not the unanimous view of the Court.24
[40] I consider that, if Ms Liston-Lloyd’s belief that she was not free to leave was reasonable, it would have amounted to an arbitrary detention despite its brief nature. A requirement to submit to providing a DNA sample is a significant restraint on a person’s liberty even though it is for a short period.25 In my view there would have been an arbitrary restraint if the police had induced in Ms Liston-Lloyd a reasonable belief that she was required to submit to providing the sample at that time when that was not in fact the case. Therefore, if I had found that she did have a reasonable
belief that she was not free to leave, her claim that her right under s 22 of the
21 The emphasis is in the original document.
22 Police v Smith and Herewini [1994] 2 NZLR 306 (CA) at 321; Everitt v Attorney-General, above n 19, at [7].
23 Police v Smith and Herewini, above n 22, at 317.
24 At 310 (per Cooke P) and 324 (per Casey J).
25 There is support for this view in Andrew Butler and Petra Butler The New Zealand Bill of Rights
Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [19.6.5] and [19.6.7].
NZBORA was breached would not have failed on the basis that the detainment was a temporary and minimal one.
The legal principles for NZBORA damages
Approach in relation to a s 21 breach
[41] The Court is required to provide an effective remedy for NZBORA
breaches.26 An effective remedy is one that adequately vindicates a breach.27
Vindication may or may not require damages.28 To consider whether it might do so in this case, I start by considering what is to be vindicated when a breach has occurred and what purposes are served by damages as a component of any such vindication.
[42] Vindication has both private and public law components.29 This recognises that breaches of rights of this kind harm not only the particular victim of the breach but the public generally (impairing public confidence in the efficacy of constitutional protections).30 The objective is to “affirm the right” (that is to defend and uphold it) and to deter further breaches.31 An award of damages may serve these purposes by compensating for the injury caused by the breach (compensation), marking the
wrong that has occurred (vindication) and deterring the breach (deterrence).32
26 See, for example, Simpson v Attorney-General [1994] 3 NZLR 667 (CA) [Baigent’s Case] at 676 (per Cooke P) that the Court “would fail in [its] duty if [it] did not give an effective remedy”; Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [253] (per Blanchard J) that “the Court must provide an effective remedy”; Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [28] (per Elias CJ) that the “obligation to provide effective remedy has been acted on by the courts in many cases …”.
27 See for example, Attorney-General v Chapman, above n 26, at [30] (per Elias CJ).
28 See for example Baigent’s Case, above n 26, at 703 (per Hardie Boys J) and at 718 (per McKay J); and Taunoa v Attorney-General, above n 26, at [255] to [258] (per Blanchard J) and at [368] (per McGrath J).
29 See for example Baigent’s Case, above n 26, at 702 to 703 (per Hardie Boys J); and Attorney- General v Chapman, above n 26, at [30] (per Elias CJ) as to the public right component.
30 Fose v Minister of Safety and Security 1997 (3) SA 786 (CC) at [82], referred to by Blanchard J
in Taunoa v Attorney-General, above n 26, at [253]. See also at [367] per McGrath J citing Dinah Shelton Remedies in International Human Rights Law (2nd ed, Oxford University Press, Oxford, 2005) at 99: “society as well as the individual victim is injured when human rights are violated”. See also Butler and Butler, above n 25, at [27.6.2].
31 Baigent’s Case, above n 26, at 678 (per Cooke P), referred to by Blanchard J in Taunoa v
Attorney-General, above n 26, at [234]. See also at [300] per Tipping J; and at [249] per
Blanchard J, referring to Attorney-General of Trinidad and Tobago v Ramanoop [2006] 1 AC
328 (PC) at [18] and [19].
32 Taunoa v Attorney-General, above n 26, at [109] (per Elias CJ). See also Butler and Butler, above n 25, at [27.6.2]. As noted by the authors, there is some controversy as to whether it is legitimate for NZBORA damages to serve a punitive function.
[43] Thus NZBORA damages are concerned both with what a plaintiff should receive (the compensation function) and what the defendant should pay (the vindication and deterrence functions).33 Any one of these purposes may support an award.34 However damages are not ordinarily required for deterrence purposes because a declaration ordinarily can be expected to encourage high standards of compliance.35 Rather, they are usually awarded to serve compensatory and/or
vindicatory purposes.36
[44] Compensation restores a plaintiff for injury or loss.37 Intangible loss in the form of humiliation, distress, inconvenience and the like, is a form of loss for which compensation is potentially available.38 An individual should be able to feel secure in the knowledge that the state will respect his or her NZBORA rights, and the state should be required to compensate him or her for injury or loss resulting from the failure to do so.39
[45] However NZBORA damages should be awarded only if other relief is not sufficient to provide effective redress for a breach.40 Whether damages are a necessary component of an effective remedy depends on the circumstances. In determining whether to make an award at all, Tipping J in Taunoa v Attorney- General put forward the following factors as relevant:41
… the nature of the right which has been breached … the circumstances and seriousness of the breach … the seriousness of the consequences of the breach … the response of the defendant to the breach … and … any relief awarded on a related cause of action.
33 Taunoa v Attorney-General, above n 26, at [318] (per Tipping J).
34 Butler and Butler, above n 25, at [27.6.3].
35 Taunoa v Attorney-General, above n 26, at [245] (per Blanchard J) citing R (Greenfield) v
Secretary of State for the Home Department [2005] 2 All ER 240 (HL) at [19].
36 In Taunoa v Attorney-General, above n 26, at [259] Blanchard J considered that compensation
for hurt feelings was a subsidiary function to the vindicatory one of marking society’s disapproval of the conduct, whereas at [317] Tipping J considered these dual purposes as having “equal claim” in providing an effective remedy.
37 Butler and Butler, above n 25, at [27.6.2].
38 At [27.24.1], citing for example Baigent’s Case, above n 26, at 678 (per Cooke P) and Taunoa v
Attorney-General, above n 26, at [301] (per Tipping J).
39 Butler and Butler, above n 25, at [27.6.2].
40 Taunoa v Attorney-General, above n 26, at [258] (per Blanchard J).
41 Taunoa v Attorney-General, above n 26, at [305] (per Tipping J). See also Blanchard J at [255] to [258] and McGrath J at [370] to [372]; and Attorney-General v Van Essen, above n 18, at [106] to [107].
[46] One circumstance where an award of damages is not usually required arises where evidence is ruled inadmissible in a criminal trial for breach of the NZBORA. Excluding the evidence is regarded as sufficient vindication for the breach and an award of damages is not required.42 Cooke P in Baigent’s Case expressed the view that, in the circumstances of that case (which involved an unreasonable search of an innocent party), a “mere declaration” would be “toothless” and the “only effective remedy” was compensation.43 That is not to say that a declaration alone is always insufficient vindication where a party is “innocent” and no repetition of the conduct in relation to that plaintiff is ever likely. For example, no damages should be awarded if a breach is relatively minor.44 Damages are more likely to be a necessary part of an effective remedy if a breach is serious and/or the conduct has involved physical restraint, direct infliction of physical harm, or prolonged or significant deprivation of liberty.45 And, as it was put by Tipping J in Taunoa v Attorney-
General:46
Although in this field relief is discretionary rather than as of right, it must generally be appropriate to compensate for demonstrable harm suffered as a result of the breach of a right of sufficient importance to be affirmed in the [NZBORA]. The law would be in a strange place if relatively innocuous common law breaches were compensated as of right whereas breaches of a statutorily affirmed human right of an important kind were deemed less worthy of compensatory redress.
[47] If an award of damages is to be made, the award should be “restrained” or “moderate.”47 It should not trivialise the breach.48 It may be appropriate to have regard to common law damages, particularly where the focus of the award is on the
compensation function.49 However there is an “extra dimension” in an NZBORA
42 Baigent’s Case, above n 26, at 703 (per Hardie Boys J).
43 At 676 (per Cooke P) (discussed by Blanchard J in Taunoa v Attorney-General, above n 26, at
[232]). See also at 703 (per Hardie Boys J): “Obviously there must be a different, and equally effective, remedy where there has been an infringement of the rights of an innocent person. In such a case, in my opinion, monetary compensation is an appropriate and proper, indeed the only effective, remedy.” See also comments to a similar effect at 718 (per McKay J).
44 Taunoa v Attorney-General, above n 26, at [256] (per Blanchard J). See also Van Essen v
Attorney-General [2015] NZSC 101.
45 Attorney-General v Van Essen, above n 18, at [107].
46 Taunoa v Attorney-General, above n 26, at [318].
47 At [257] (per Blanchard J).
48 At [264] (per Blanchard J).
49 Butler and Butler, above n 25, at [27.16.26]; see also Taunoa v Attorney-General, above n 26, at
[323] (per Tipping J) but compare with Blanchard J at [265].
damages claim because of the “constitutional right” violated.50 Because of that, it has been suggested that common law damages should “set the floor rather than the ceiling” for NZBORA damages.51 Or, as it was put by Tipping J in Taunoa v Attorney-General, the approach involves considering how much is necessary to achieve the vindicatory purpose, how much is necessary to achieve the compensatory purpose, and then awarding the higher of the two sums.52
A different approach for a s 22 breach?
[48] Counsel for Ms Liston-Lloyd contends that, whereas damages need not always be part of an effective remedy for a s 21 breach, damages must be awarded whenever a s 22 breach has occurred. This submission is made because Article 9(5) of the International Covenant on Civil and Political Rights provides that “[a]nyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.” It is said that this language makes compensation available as of right, rather than as a matter of discretion, for a breach of this kind.
[49] Counsel for Ms Liston-Lloyd submits that this is supported by the General Comment of the United Nations Human Rights Committee on Article 9(5) which states:53
50. Paragraph 5 obliges States parties to establish the legal framework within which compensation can be afforded to victims, as a matter of enforceable right and not as a matter of grace or discretion. The remedy must not exist merely in theory, but must operate effectively and payment must be made within a reasonable period of time. Paragraph 5 does not specify the precise form of procedure, which may include remedies against the State itself or against individual State officials responsible for the violation, so long as they are effective. Paragraph 5 does not require that a single procedure be established providing compensation for all forms of unlawful arrest, but only that an effective system of procedures exist that provides compensation in all the cases covered by paragraph 5. Paragraph 5 does not oblige States parties to compensate victims sua sponte, but rather permits them to leave commencement of proceedings for compensation to the initiative of the victim.
…
50 Attorney-General of Trinidad and Tobago v Ramanoop, above n 31, at [19].
51 Butler and Butler, above n 25, at [27.16.26].
52 Taunoa v Attorney-General, above n 26, at [324].
53 General Comment No. 35 – Article 9 (Liberty and security of person) CCPR/C/GC/35 (2014) (footnotes omitted).
52. The financial compensation required by paragraph 5 relates specifically to the pecuniary and non-pecuniary harm resulting from the unlawful arrest or detention. …
[50] Counsel for Ms Liston-Lloyd submits that, if the discretionary approach developed by New Zealand courts in relation to breaches of other rights is applied in relation to s 22 breaches, this will breach New Zealand’s international obligations. He says that there is nothing in the case law which precludes an approach to compensation for s 22 breaches that is consistent with New Zealand’s international obligations.
[51] Counsel for the Commissioner submits that Article 9(5) is not expressly found in the NZBORA, and that there is nothing in that Act to suggest that Parliament intended compensation for breaches of s 22 to be treated any differently to breaches of any other rights guaranteed under the NZBORA. She further submits that the international obligation does not require compensation to be made in every case where the right in s 22 is breached. She submits that under the approach developed in the case law Ms Liston-Lloyd is entitled to bring proceedings for compensation and, if compensation is awarded, that award will be enforceable.
[52] It is not necessary that I venture any view on this issue because in this case I am satisfied that there was no breach of s 22. Even if there had been such a breach it was at the very minor or trivial end. Any “detention” related only to Ms Liston- Lloyd’s mistaken belief about the point in time at which she could be arrested if she failed to provide the sample. But she was intending, on the advice of her lawyer, to comply with the notice by providing the sample. There is no suggestion that she would have declined to provide the sample at her house on the evening that she did, even if she had understood that she could not be arrested at that time. No particular affront to her rights occurred and no sense of outrage arises from her mistaken understanding about when she could be arrested. Any damages award to compensate or vindicate any such minor breach would be subsumed by the award for the more significant breach of s 21 established in this case, which can take into account the circumstances in which the sample was taken in any event.
My assessment in this case
[53] In the present case a declaration has been made that the databank compulsion notices were unlawful and there was no lawful basis for holding Ms Liston-Lloyd’s DNA profile in the databank. An order for destruction was made and the profile has been destroyed in accordance with that order. The Commissioner accepts that a further declaration is appropriate if I find, as I have done, that the sample was obtained in breach of Ms Liston-Lloyd’s right under s 21. The question is whether these orders provide an effective remedy. An award of damages is not necessary for
specific deterrence because this particular kind of breach will not arise again.54
Therefore, if damages are to be awarded, the relevant potential purposes to be served are compensation and vindication. Compensation would be for the distress caused by the unlawful and unreasonable taking and holding of Ms Liston-Lloyd’s DNA sample. Vindication would be to mark the fact that an important right, which should be upheld, was breached.
[54] In contending for an award of damages, counsel for Ms Liston-Lloyd emphasises the highly sensitive nature of cellular samples and DNA profiles and the serious impacts on personal privacy arising from their retention and control by state authorities. As it has been put, an individual’s DNA contains “the highest level of
personal and private information”55 and “is capable of revealing the most intimate
details of a person’s biological makeup.”56 An amount of around $10,000 to $15,000 is suggested as being appropriate in the circumstances.
[55] In contending that no award of damages is required, the Commissioner refers to Taylor v Attorney-General.57 Mr Taylor succeeded in obtaining declarations that his right to natural justice had been breached in respect of the amended order (s 27) and that his DNA sample was obtained in breach of his right to be free from unreasonable search and seizure (s 21). The Judge considered that these declarations provided a sufficient remedy such that no damages award should be made. In
relation to the s 21 breach the Judge’s reasons were that the breach was not
54 The legislative provisions have been amended.
55 R v SAB 2003 SCC 60, [2003] 2 SCR 678; cited in R v RC 2005 SCC 61, [2005] 3 SCR 99.
56 R v RC, above n 55, at 112.
57 Taylor v Attorney-General, above n 14.
particularly serious; the taking of the swab was not invasive and less intrusive than the taking of a blood sample, particularly as Mr Taylor had taken the swab himself under the direction of the police; the police had acted in good faith relying on a District Court order; the detention was brief; and there was nothing else that appreciably exacerbated the breach.
[56] The Judge likened the case to Rochford v Attorney General.58 That was a case involving an unreasonable search due to defects of form rather than substance in the application for the warrant. A declaration together with indemnity costs was regarded as sufficient to remedy the breach. The Judge in Taylor v Attorney-General considered that, like the breach in Rochford which was “relatively quite minor”, the breach before him was similarly minor.
[57] The Commissioner submits that the breach here was far less serious than in Taylor. I do not agree. Two features distinguish Taylor from the present circumstances. First, in Taylor there was a lawful right to take the sample if the order had been sought within the six month time period for doing so. In that sense the illegality was a technical one. In the present case, there was no lawful right to take the sample because the offence committed was not a qualifying one. The breach was therefore one of substance rather than form. Secondly, it does not appear that in Taylor the sample was held in the databank or, if it was, there was no evidence about
that.59 In this case the sample was held in the databank and “accessed” a number of
times.60
[58] The Commissioner also referred to the observation in Attorney-General v Van Essen that most of the cases in which NZBORA damages are awarded have involved physical restraint, direct infliction of physical harm, or prolonged or significant deprivation of liberty.61 That observation, however, does not mean that damages are
available only in those circumstances. As the Court of Appeal noted, the proper
58 Rochford v Attorney-General [2008] NZAR 404 (HC).
59 The respondent submitted that it should be permitted to hold the sample in the databank notwithstanding that it was obtained unlawfully. This was rejected. See Taylor v Attorney- General HC Wellington CIV-2005-485-530, 4 May 2005.
60 It was accessed only in the sense described above at [25].
61 Attorney-General v Van Essen, above n 18, at [106].
focus was on “the package of relief that is necessary to provide an effective remedy in all the circumstances in question.”62
[59] Van Essen was similar to Rochford in that it involved defective search warrants. The defects were “technical” in nature.63 There were grounds for a valid warrant if the application had been prepared properly.64 There were no aggravating features in the way the search was conducted.65 Police and Independent Police Conduct Authority (IPCA) inquiries had taken place and the resulting
recommendations had been or were being implemented. Those inquiries and recommendations achieved some measure of vindication for the breach. In those circumstances a declaration and indemnity costs were considered to provide a sufficient and effective remedy for the breach.66 As with Taylor, Van Essen is distinguishable from the present case because the searches could have been carried out lawfully if more care had been taken with the applications. In the present case a DNA sample could not have been obtained lawfully at all because Ms Liston-Lloyd had not committed a qualifying offence.
[60] Turning then to the relevant factors, Ms Liston-Lloyd’s right to be secure from an unreasonable search and seizure was breached. The breach in this case was serious in that highly personal information was taken from Ms Liston-Lloyd unlawfully. The breach arose because the police proceeded on the basis of an understandable but mistaken legal interpretation of the relevant provisions. While understandable, if the police seek to obtain such highly personal information, it is especially important to ensure that all care is taken to act lawfully. As a result of the breach, police records noted that her DNA sample had been provided. More importantly, Ms Liston-Lloyd’s DNA profile was stored for a number of years on a database with DNA profiles from serious criminal offenders that was regularly searched for the purpose of police investigations. Although there were proper
protections in place as to who and for what purpose the database could be accessed,
62 At [80], citing Elias CJ in Taunoa v Attorney-General, above n 26, at [107]. The Court of Appeal also cited, at [81] to [85], statements to similar effect at [255] to [257] (per Blanchard J), at [318] (per Tipping J), and at [368] (per McGrath J].
63 Van Essen v Attorney-General, above n 44, at [8].
64 At [8].
65 The Court of Appeal disagreed with the High Court on this point.
66 Indemnity costs were awarded up to trial in light of the Attorney-General’s pre-trial offer for a declaration.
Ms Liston-Lloyd’s upset about her profile being on that database is entirely reasonable and understandable. She unsurprisingly did not want to provide her DNA to the police if she did not have to do so, and she did not regard herself as being a serious criminal offender to warrant this. The sample was taken by police officers attending her house one evening in circumstances she understandably found to be brusque and somewhat threatening. Ms Liston-Lloyd was concerned enough about the databank compulsion notices to seek legal advice about them, to commence the review process that is available, and to make a complaint to the Privacy Commissioner. The distress and upset, as described in connection with the Privacy Act 1993 complaint, is nevertheless at the lower end of the spectrum for intangible harm of this kind.
[61] Taking all these factors into account I consider that a restrained award is appropriate. The key factors are these. On the one hand the breach involved highly personal information unlawfully taken. Balanced against that, the distress involved was at the low end and there were proper protections around the use made of the profile on the databank. The objectives of the award in the circumstances of this case are to compensate Ms Liston-Lloyd for the upset and distress suffered and to recognise that it was caused in relation to her right to be secure against an unreasonable search and seizure. An award of $2,500 is, in my view, appropriate. If this was a common law action in tort, I consider that a small award of around $1,000 to $1,500 for the distress and upset would have been appropriate. I have adjusted that upwards because it is appropriate to mark that an important right, affirmed in the NZBORA, has been breached. However the award should also be lower than other
awards where the harm or suffering was more significant.67
[62] In making this award I have not taken into account any costs order that might be made. The parties have not sought to have costs considered as part of determining whether damages are necessary to provide an effective remedy.
Result
[63] Accordingly, I order the following relief:
67 See the “Public law compensation – quantum of awards” table in Attorney-General v Van Essen, above n 18.
(a) a declaration is made that the police obtained Ms Liston-Lloyd’s DNA sample in breach of her right under s 21 of the New Zealand Bill of Rights Act;
(b)damages in the sum of $2,500 are to be paid to Ms Liston-Lloyd in respect of that breach.
[64] Costs are reserved. If the parties are unable to reach agreement on costs, they have leave to submit memoranda on or before 30 November 2015 on the costs matters in dispute.
Mallon J
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