Moonen v Attorney-General HC Wellington CIV 2006-485-2909

[2007] NZHC 2034

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2006-485-2909

BETWEEN  GERALD MOONEN Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Defendant

Hearing:         15 August 2007

Appearances: D H O’Leary for Plaintiff

A Bennett for Defendant

Judgment:      23 August 2007

JUDGMENT OF ASSOCIATE JUDGE GENDALL

This judgment was delivered by Associate Judge Gendall on 23 August 2007 at

11:30 a.m. pursuant to r540(4) of the High Court Rules 1985.

Solicitors:

Mr M Lillico, Sladden Cochrane & Co, Solicitors, PO Box 10909, Wellington

Ms A Bennett, Crown Law, PO Box 2858, Wellington

MOONEN V THE ATTORNEY-GENERAL OF NEW ZEALAND HC WN CIV 2006-485-2909  23 August

2007

Introduction

[1]      The plaintiff has filed proceedings alleging breaches of ss 13, 14 and 18 of the New Zealand Bill of Rights Act 1990 (BORA) as well as of the common law right to be presumed innocent until proven guilty.  The application before the Court is by the Attorney-General seeking an order that the entirety of the plaintiff’s claim be struck out under r 186 of the High Court Rules.  In the alternative, he argues that the plaintiff’s claim should be summarily dismissed under r 477 of the High Court Rules. These orders are sought on the basis that the plaintiff’s claims disclose no reasonable cause of action, are frivolous or vexatious, and that they constitute an abuse of process of the Court.  The plaintiff opposes the application.

Background facts

[2]      The   plaintiff   was   the   President   of   the   Australasian   Man-Boy   Love Association  (“AMBLA”)  until  that  organisation  ceased  to  function  in  1998. AMBLA was an unincorporated association established by the plaintiff in 1991 with the stated purpose of “advocat[ing] a change in societal attitudes to loving sexual relationships between adult men and boys”.

[3]      The  plaintiff  alleges  that  while  he  was  President  of  AMBLA  the  New Zealand Police (“the Police”) described him to Healthcare Hawkes Bay as “a suspected paedophile” in a letter to that entity they released as a result of an official information request on 31 July 1995 (“the letter”).   This description, the plaintiff alleges, meant, and was intended to mean, that he had been or was an active criminal offender against children.  This, the plaintiff stresses, is untrue.  He emphasises in his amended statement of claim dated 9 March 2007 that he is not and never has been a paedophile and that he has never been charged with or convicted of any sexual offence.

[4]      The plaintiff says that the release of the letter by the Police breached both his right to adopt and hold opinions without interference, and his freedom to seek,

receive and impart information and opinions of any kind in any form.   These allegations form the basis of the plaintiff’s first, second and fourth causes of action, which are based, respectively, on breaches of s 13 and s 14 of BORA and on a breach of the common law right to be presumed innocent until proven guilty.

[5]      The plaintiff further alleges that in 1994 the Police caused his name to be wrongly placed on an Interpol list of suspected paedophiles.   This, he says, had drastic consequences for him in 2002.  In that year the plaintiff decided to move to Bribie Island in Queensland, Australia, where he says a friend of his had offered him a house in which he might live rent-free for the rest of his life.   According to the plaintiff, when he arrived at Brisbane airport on 25 June 2002 he was searched and questioned by Australian customs officials “in a manner indicating that the Police had passed this [Interpol] list wrongly describing [me] as a suspected paedophile to the Australian authorities”.

[6]      But it seems this was not the end of the plaintiff’s troubles in Queensland. Around 13 July 2002 he says that Queensland police officers searched the Bribie Island address at which he was by then living.  According to the plaintiff this was the final straw and prompted him to leave Australia to avoid further harassment.  This he did on 15 July 2002.  At Brisbane airport, the plaintiff says that Australian customs officials again searched and questioned him.   He says that he received similar treatment by the New Zealand Customs Service (“Customs”) when he arrived at Wellington airport.  Moreover, the plaintiff alleges that, at some date after 15 July

2002, Queensland police told the friend at whose house he had been living that they intended to arrest the plaintiff if ever he re-entered Australia.

[7]      The plaintiff says that the Police’s actions in causing his name to be wrongly placed on the Interpol list and in passing this list wrongly describing him as a suspected paedophile to Australian authorities breached his right to freedom of movement.   These facts underpin his third and fourth causes of action, which are based, respectively, on breach of s 18 of BORA and on a breach of the common law right to be presumed innocent until proven guilty.  He says that these breaches have caused him damage.   In particular, he says that they have curtailed his ability to travel out of New Zealand, for he now fears harassment and/or arrest when crossing

a national border.  He also says that being branding as a suspected paedophile has maligned his reputation.  Finally, he emphasises that the actions he complains about have removed his opportunity to live rent free for life on Bribie Island.

[8]      For the wrongs alleged in the four specified causes of action the plaintiff seeks declarations, as well as “general and exemplary compensation” of $200,000 for the first, second and third causes of action and of $50,000 for the fourth cause of action.  The plaintiff also seeks costs.

The legal framework

[9]      The  Attorney-General  applies  to  strike  out  or  dismiss  this  proceeding pursuant to r 186 and r 477 of the High Court Rules.  Those rules relevantly provide:

186.  Striking out pleading

Without prejudice to the inherent jurisdiction of the Court in that regard, where a pleading–

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the proceedings…

the Court may at any stage of the proceedings, on such terms as it thinks fit, order that the whole or any part of the pleading be struck out.

477.  Summary stay or dismissal

Where in any proceeding it appears to the Court that in relation to the proceeding generally or in relation to any claim for relief in the proceeding –

(a) no reasonable cause of action is disclosed…

the Court may order that the proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding.

[10]     So far as r 477 is concerned McGechan on Procedure at para HR477.03 states:

HR477.03 No reasonable cause of action disclosed

The jurisdiction under r 477(a) to dismiss has been treated as applying the same principles as under r 186: Marshall Futures Ltd v Marshall [1992] 1

NZLR 316; (1991) 3 PRNZ 200 at p 323; p 206.  The power to dismiss is to

be exercised sparingly, and only in clear cases, where it is beyond repair and

so untenable that it could not succeed: Electricity Corp Ltd v Geotherm

Energy Ltd [1992] 2 NZLR 641.

[11]     The principles of law governing applications to strike out pleadings under r 186 in particular are well settled.  Such strike out applications are to be heard on the basis that the facts alleged in the statement of claim are true.  It is well settled that before the Court may strike out proceedings the causes of action must be so clearly untenable that they could not possibly succeed: Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267. Further, the strike out jurisdiction is one to be used sparingly and only in a clear case where the Court is satisfied it has the requisite material: Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2

NZLR  641.    But,  it  is  not  to  be  precluded  by  the  application  raising  difficult questions of law which may require extensive argument: Gartside v Sheffield Young

& Ellis [1983] NZLR 37 (CA).

[12]     Williams J considered the jurisdiction of the Court in an application of this nature in his recent decision in Bennett & Ors v Waitakere City Council & Anor HC AK CIV-2005-404-007348 14 May 2007.   He summarised the approach to such applications at [6]:

The striking-out application was brought under both RR 186 and 477.  The approach to the jurisdiction to striking out a pleading under R 186(a) or a proceeding under those Rules is well-settled. All allegations in the statement of claim are assumed to be admitted or be capable of proof.  The pleading is then considered against the test of deciding whether, on material which can be properly considered, it has been shown that it is so clearly untenable in fact and law as to be incapable of success.   That test has been set by the Courts as being deliberately difficult to attain to preserve citizens’ access to Courts.  The discretion is to be exercised sparingly and in clear cases only. Pleadings or proceedings may be struck out even though such applications raise difficult questions of law requiring extensive argument provided the Court can be persuaded that the claim is unsound, the pleading cannot be amended satisfactorily and such an order will obviate the necessity for trial (Peerless Bakery Ltd v Watts [1955] NZLR 339; McKendrick Glass Manufacturing  Co  Ltd  v  Wilkinson  [1965] NZLR 717; R  Lucas  & Son (Nelson Mail) Ltd v O’Brien [1978] 2 NZLR 289; Takaro Properties Ltd v Rowling [1978] 2 NZLR 314; Gartside v Sheffield Young & Ellis [1983] NZLR 37; South Pacific Manufacturing Co Ltd v NZ Security Consultants & Investigations Ltd [1992] 2 NZLR 282).

[13]     To  these  comments  should  be  added  statements  Williams  J  made  in  a decision almost one year earlier, Twin Bright Shipping Co SA v Tauwhareparae Farms Ltd HC GIS CIV 2003-416-1 26 May 2006.   He set out at [4]-[5] of that

judgment some views on what it means to say that a striking-out application must show the claim “to be so clearly untenable in fact and law as to be incapable of success”.  This phrase, he said, “is now so well-worn as to carry little impact” (at [4]).  He then went on to put things “more bluntly” at [5], saying that “what striking- out applicants must show is that those claiming on them will undoubtedly lose if the case goes to trial”.  “A weak case or one imperfectly pleaded”, he continued, “is not enough; [the strike out applicant] must show the claimant’s loss is inevitable”.  This high test, he said at [2], reflects the need to preserve citizens’ access to Courts, a comment I have borne in mind when considering this application.

Analysis

Parties

[14]     The Attorney-General raises an initial issue relating to parties.  He refers to the fact  that  he is  being sued  in  respect  of  the actions  of  both  the Police  and Customs.   But, he emphasises, no relief is sought against Customs and all of the declarations are sought against the Police.  Also, the Attorney-General suggests that the  plaintiff’s  amended  statement  of  claim  appears  to  attribute  the  actions  of Customs to the Police.  These circumstances, he says, warrant the Court striking out the  reference  to  the  Attorney-General  being  sued  in  respect  of  the  actions  of Customs.

[15]     I do not agree.  As I pointed out to Ms Bennett, counsel for the defendant, at the hearing, the plaintiff at paragraphs 18 and 21 of his amended statement of claim alleges  in  effect  that  he  was  mistreated  by Customs  when  he  returned  to  New Zealand from Queensland.  The plaintiff draws attention to this in his submissions in opposition to the present application.   In these he notes that his “primary” case is against the Police but that Customs “is implicated in this matter as a result of its own

‘encounter’ with the Plaintiff at Wellington airport from Brisbane on 15 July 2002”. I accept that the appropriate course is that suggested by the plaintiff.  That is, that he be  allowed  to  amend  his  pleadings  to  include  a  separate  cause  of  action,  and

declarations,  against  Customs.    As  to  this,  McGechan  on  Procedure  at  para

HR186.08, in dealing with the ability to amend a pleading, states:

Where it is alleged that a pleading raises no reasonable cause of action or defence, and the defect identified could be cured by an amendment which the other party is willing to make, the Court almost invariably would allow such amendment rather than taking the draconian step of striking out.   In Marshall Futures Ltd v Marshall [1992] 1 NZLR 316; (1991) 3 PRNZ 200, at p 207, Tipping J, by analogy to motor vehicle insurance saw the difference as that between a pleading “which is a total write off and one which is deficient but is capable of effective repair”.

An order permitting amendment of the plaintiff’s statement of claim to include a separate cause of action against Customs and to seek appropriate declarations is appropriate here and will follow.

First and Second causes of action – Denial of right to adopt and to hold opinions without interference; Denial of right to freedom of expression

[16]     These  two  causes  of  action  seem  to  be  predicated  on  two  facts  being established.  First, that the plaintiff knew of the existence of the letter, and second, that the letter had the effect (whatever its purpose) of inhibiting him from holding and imparting his opinions about man-boy relations.  If these facts cannot be proved, or the necessary inferences drawn, it is hard to see how there could be State interference with the plaintiff’s beliefs and opinions, a requirement explicit in s 13 and implicit in s 14.

[17]     The Attorney-General attacks the second predicate.  He submits that there are no facts pleaded that establish any interference by the Police with the plaintiff’s ability to adopt and hold opinions, or to seek, receive and impart information and opinions of any kind in any form.  In support of this submission he argues that the fact that someone might be suspected of, or even that he might be being investigated in relation to, a particular type of criminal offending should not be seen as interfering with his ss 13 and 14 rights.  To illustrate this point, the Attorney-General submits that those who advocated in the past for homosexual law reform, and those who advocate for the legalisation of cannabis, were not prevented from forming and expressing the view that those actions ought to be legal.   So too, the submission

goes,  the  plaintiff  should  not  be  seen  as  being  prevented  from  forming  and expressing his opinions merely because those opinions are not mainstream ones.

[18]     In  my  view,  however,  potentially  this  analogy  harms,  not  helps,  the Attorney-General’s  application.    It  brings  out  the  abstract  assumptions  that  the Crown asks the Court to make.  That is, that such persons did/do not feel inhibited in forming and disseminating their views, despite the unlawfulness of the conduct in question at the time those views are formed or disseminated.  This is contestable, not least because it is an empirical assertion.  It can, for example, just as plausibly be asserted that some people who believed that homosexuality should be decriminalised did not disseminate that belief, widely or indeed at all, for fear of what the popular and prosecutorial response might be.  The same can plausibly be asserted in respect of the views some people might today hold vis-à-vis the illegality of cannabis.

[19]     The Attorney-General has provided no empirical evidence to convince me that I should accept the assertion that the plaintiff has not been inhibited in holding or imparting opinions on man-boy love following the letter released in 1995.   I observe in this regard that by its very nature a claim that one has been impeded in forming, retaining and disseminating opinions requires the rights-holder to assert a negative.  And this is what the plaintiff has done.  He says in paragraphs 10 and 12 of his amended statement of claim that the letter describing him as “a suspected paedophile” did interfere with his freedom to seek, receive and impart information and opinions of any kind in any form.

[20]     Like a publisher asserting that a large award of damages in the wake of successful defamation proceedings will impede its ability to shine the disinfectant of sunlight on impropriety, the plaintiff’s claim is a hard one to outright reject, the more so in a strike out application like this.   It was for this reason that I put it to Ms Bennett,  counsel  for  the  defendant,  at  the  hearing  that  the  Attorney-General’s stronger point would seem to be that the plaintiff’s actions are inconsistent with the interference he claims.  Continuing AMBLA, in a presidential capacity, until 1998 (i.e. for around 3 years after the letter), and seeking to import a book describing sexual activity between men and boys (Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at [1]-[2]) some time after the letter, arguably would seem

to suggest that, despite what he says, the plaintiff was not restricted in the exercise of his ss 13 and 14 rights.

[21]     Mr  O’Leary,  counsel  for  the  plaintiff  before  me,  however,  did  have  a response to this argument.   When I put it to him, he emphasised that while these facts supported an adverse inference in respect of infringement of ss 13 and 14, the plaintiff will give evidence that his views were so inhibited.  This is something that can be, and should be, done at a substantive hearing and in this way tells against the Attorney-General’s applications being granted.  Mr O’Leary also suggested that the facts relied upon for drawing an inference adverse to the plaintiff at the same time support an inference that his freedom to seek, receive and impart information and opinions of any kind in any form in any event was interfered with after 1998.  The dissolution of AMBLA in this year is, he said, evidence supportive of the plaintiff in fact being inhibited in the exercise of his ss 13 and 14 rights.

[22]     This last point in my view is a relatively strong one, especially given that the plaintiff’s amended statement of claim does not stipulate a particular timeframe within which the plaintiff’s freedom to seek, receive and impart information and opinions of any kind in any form was interfered with.  For this reason, and because of the inherent contestability of the inference the Crown asks the Court to draw, I am not prepared to strike out the plaintiff’s first and second causes of action.   Their resolution lies in the rigours of the adversarial process which must include a proper examination  of  the  empirical  evidence and  a  testing of that  evidence by cross- examination.

Third cause of action – Denial of right to freedom of movement

[23]    In his statement of defence the Attorney-General pleads that he has no knowledge of and therefore denies the plaintiff’s allegations that the Police caused the  plaintiff’s  name  to  be  wrongly  placed  on  an  Interpol  list  of  suspected paedophiles.   But even if the Police had informed Australian authorities that they suspected the plaintiff of paedophilia, the Attorney-General argued that this could not constitute a breach of s 18 of BORA.  This is because the alleged breach, in the manner that it is pleaded, in no way would impede or interfere with the plaintiff’s

ability to leave or return to New Zealand or enter Australia, which events of 2002 show that he was clearly able to do.

[24]    If the plaintiff were complaining of historic breaches of s 18, then this submission would be a formidable one.  The fact that the plaintiff was in fact able to depart New Zealand is strong, if not decisive, evidence that his right to “leave” New Zealand was not (and I emphasise the past tense here) as a matter of law engaged. There  were  not,  for  example,  de  jure  restrictions  on  his  ability  to  migrate  to Australia, say by a withholding of his passport.

[25]     But it is not historic breaches that the plaintiff complains of.   His focus is instead on an anticipated breach of s 18.   In his amended statement of claim the plaintiff alleges that the Police’s actions have (inter alia) curtailed his ability “to travel out of New Zealand for fear of harassment and/or arrest when crossing a national border”.  That is, the plaintiff has a (subjective) fear that his s 18 right will be violated if he crosses a border in the future, such fear being grounded on past events, in particular his experiences in 2002.

[26]   Framed in this way the plaintiff’s third cause of action has conceptual similarities to a claim for international protection under the 1951 Convention relating to the Status of Refugees and related instruments.  This is important, for I think that this framework provides a legal basis upon which the plaintiff might advance his claim that an anticipatory breach of s 18 is actionable.  The international protection framework allows rights-holders to get relief against the State.  This they can do by showing that  there is  a real  chance that  their subjective fear of a future  rights violation will be realised, such fear being objectified by their own past experiences or the experiences of similarly situated persons.  While the principal form relief takes in refugee cases is in essence injunctive – the State must not refoule a refugee, directly or indirectly, to a dangerous country – this is not fatal to its framework having broader application.  To hold otherwise would, it seems to me, conflate two quite distinct public law inquiries; (i) has there been a rights violation? and (ii) what, if anything, is appropriate by way of relief for that violation?

[27]     In concluding that the plaintiff’s claim for an anticipated breach of s 18 is not plainly untenable, I do not overlook Smith v Canada (Attorney-General) (2002) 210

DLR (4th) 289.  In that case the Supreme Court of Canada, affirming Bregman et al v Attorney-General (1986) 29 DLR (4th) 474, held at 294, [6] that subjective disincentives on the right to leave a country will not, in the absence of “sufficient[] significan[ce]”, breach s 6(1) of the Charter, Canada’s equivalent to s 18 of BORA. In Smith welfare legislation provided that claimants were not entitled to receive benefits for any period during which they were not in Canada. This provision had the effect of disentitling unemployment insurance beneficiaries from receiving benefits. But because it left the right to leave Canada “unimpaired” the Supreme Court held that there could be no violation; the appellant remained “free to enter, remain in, and leave Canada at her discretion” (338, [143]). “Subsection 6(1) of the Charter does not protect the appellant from economic disadvantage associated with her choice to leave Canada for vacation purposes”, the Court noted at 338, [144] (emphasis added).

[28]     In the earlier case, Bregman, the Ontario High Court held that war veterans legislation requiring 10-year residency in Canada following war for veterans of allied forces of WWII to qualify for benefits did not breach the Charter. There, Saunders J rejected the applicant’s submission that the 10-year residency requirement imposed a penalty on travellers and inhibited their right to travel. “Travelling”, he said at 480, “may have the effect of postponing the obtaining of the allowance but it does no more than that. It is a matter of free choice. The right to leave Canada is unimpaired by the Act”.

[29]     At first glance these decisions might seem fatal to the plaintiff’s third cause of action.  His 2002 treatment, it could be said, provides merely a disincentive for leaving New Zealand.  Because he remains free to enter, remain in, and leave this country at his discretion, there can be no violation of s 18.   But, and this point is critical, in neither of those cases did the person claiming a breach of s 6(1) argue that anticipatory breaches are justiciable applying a refugee law framework.  Moreover, the Supreme Court seems not to have closed the door to claims of anticipatory breaches of the Charter.   Its “sufficient[] significan[ce]” caveat seems especially suited  to  cases  where,  as  here,  a  plaintiff  fears  that  his  right  will  be  violated;

something plainly more important than the temporary loss of an entitlement that was feared in Smith and Bregman.  For these reasons, I do not think that the Canadian jurisprudence operates as a red light to the progression of the present cause of action to trial.

[30]     Undeterred, the Attorney-General submitted that there can as a matter of law be no breach of s 18, for all persons crossing international borders may be subjected to reasonable questioning by customs and immigration officials both at the point of departure and on arrival at an overseas port.  R v Boateng (1999) 5 HRNZ 450 (HC) was cited in support of this submission. In that case, Potter J held that the requirement of persons recently arrived at the border to submit to questioning by customs officers does not constitute a detention for the purposes of s 22 of BORA. But that case is not helpful, nor of any real relevance, here. So far as BORA goes, Potter J focused solely upon s 22. There is nowhere in her judgment any mention of s 18. Added to this, Boateng focuses upon the actions of Customs, not those of foreign authorities.

[31]     Even if these differences are overlooked, the Attorney-General’s submissions do not convince me that, as a matter of law, the plaintiff’s claim that an anticipatory breach of s 18 has no chance of success.   This is because the Attorney-General conflates the initial inquiry of whether there has been a prima facie breach of a BORA right (where the focus is the words of BORA s 18) with the subsequent inquiry into the justifiability of that breach (where the focus is BORA s 5).   The latter, s 5 inquiry, which may be aided by Brandeis brief – or legislative fact – evidence, is a particularly open-textured one.  In this case, I have no evidence from either the Crown or the plaintiff directed at the s 5 abridging inquiry.  So I must be especially careful not to elevate counsel’s justificatory assertions into something higher.   In this regard, I stress that a mere recantation that “the international dimensions of criminal and terrorist activity” are implicated is not a magic key that will open a door to judicial deference.  The Court may, and in many cases will, want to know how and why such concerns arise, as well as their relevance and significance to the matters before it.

[32]     I remind myself that the strike out jurisdiction is one to be used sparingly and as McGechan on Procedure at para HR186.02(1)(e) suggests:

… the Courts should be very slow to rule on novel categories of duty of care at the strike out stage.  Empirical evidence and other expert evidence ought to be properly tested, in helping the Court make the right public policy choices.

Given these factors and the matters discussed above, I am satisfied, then, that the plaintiff’s argument that his s 18 right has been breached is not clearly untenable. The  conceptual  framework  of  refugee  law  seems  to  provide  a  basis  for  his anticipated breach argument, and the Court at this early stage is not in a position to accept the Attorney-General’s general s 5 BORA assertions.  For these reasons, I am not prepared to strike out the plaintiff’s third cause of action.

Fourth cause of action – Breach of common law right to be presumed innocent

[33]     Turning to consider this fourth cause of action, I need to say at the outset that I am not aware of any cases that have held that the right to be presumed innocent until proven guilty is engaged outside of the criminal trial process.  Nor, it seems, is the plaintiff.   With reference to authority, the Attorney-General submits that this common law right is engaged only when the “trial process” begins, not at the stage of “police investigation” of an offence, citing MacKenzie J’s decision in Ngeru v Police HC WN CRI-2006-485-76 17 November 2006 at [10].   No charge having been laid against the plaintiff, the Attorney-General submits that this right is not engaged.

[34]     Counsel  for  the  plaintiff  accepted  before  me  that  the  authorities  do  not support the broader application of this right for which the plaintiff contends.   But this, he emphasised, is no bar; this case can be the first to extend the right.  The legal method underlying this submission was epitomised in many Lord Denning decisions. Attorney-General v Butterworth [1963] 1 QB 696 (CA) at 719 is one example. “It may be that there is no authority to be found in the books”, Lord Denning said in introducing a judgment proposing an expansion of the common law, “but if this be so, all I can say is that the sooner we make one the better”.

[35]     I accept the plaintiff’s submission that the absence of authority does not necessarily bar his fourth cause of action.  The question is should the court extend the right to be presumed innocent so that it is engaged at the investigative stage?  I do not think it should.  At the investigative stage, individuals suspected of criminal offences do not face “grave social and personal consequences, including potential loss of physical liberty, subjection to social stigma and ostracism from the community”.   This articulation of the purposes served by the presumption of innocence is Dickson CJ’s in R v Oakes (1986) 26 DLR (4th) 200 (SCC) at 212-213. Its corollary seems to be that merely to suspect someone of a crime does not infringe their human dignity, as things may go no further. For example, another suspect may be found, or the evidence against the original suspect may be insufficient to warrant further action.

[36]     This is not to hold that, as here, disseminating to a third party that someone is “suspected” of being a paedophile is a trivial allegation.  Its potential to cause great damage to an individual is obvious.  But remedies would seem to lie in defamation, in actions founded on the emerging right of privacy, and in actions for breach of the Privacy Act 1993.  Insofar as the plaintiff here might be asking the Court to extend the ambit of the presumption of innocence, this does not seem to be warranted given the safeguards built into these other areas of law.   Extension might also have a disproportionate chilling effect on law enforcement, customs and healthcare authorities, which are required to adopt appropriately precautionary approaches in the discharge of their public interest responsibilities.  As Durie J recognised in P v Superintendent,  Rimutaka  Prison,  Trentham  &  Anor  HC  WN  CP  258-99  5

November 1999 at [19], public interest considerations – here, the responsibilities of public authorities – may properly constrain the application of this right.

[37]     For these reasons, I am satisfied that the plaintiff’s fourth cause of action is as a matter of law incapable of success.  It is in these circumstances unnecessary for me to consider the Attorney-General’s alternative submission.   It was that breaches of the right to be presumed innocent until proven guilty should be met only by process- oriented remedies (exclusion of evidence, quashing of criminal convictions, etc) and that this right can not found a stand-alone cause of action for compensation.  This is an interesting submission, but its resolution can wait for another case.

Conclusion

[38] It will be apparent that, for the reasons outlined above, the Attorney- General’s application is successful in part. The plaintiff’s fourth cause of action is clearly untenable and should be struck out. However, his first, second and third causes of action are not clearly untenable, and may proceed to trial. Orders to this effect are now made. And, in accordance with my conclusion at [15] above, I make a further order that the plaintiff is allowed to amend his pleadings to include a separate cause of action against Customs and appropriate declarations. An amended statement of claim to this effect is to be filed and served by the plaintiff within 20 working days of the day of this judgment.

[39]     I turn now to the issue of costs.  The defendant has been partly successful and partly unsuccessful in the present strike out application.  That said, in my view this is an appropriate case where costs should lie where they fall.  There is to be no order as

to costs.

Associate Judge Gendall