Neville v Attorney-General - [2015] NZHC 1946

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000156 [2015] NZHC 1946

BETWEEN RICHARD STEPHEN NEVILLE Plaintiff

AND

THE ATTORNEY-GENERAL OF NEW ZEALAND

Defendant

Hearing: 15 July 2015

Appearances:

C B Hirschfeld and N Taylor for Plaintiff
P Gunn for Defendant

Judgment:

17 August 2015

JUDGMENT OF VENNING J

This judgment was delivered by me on 17 August 2015 at 11.30 am, pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Castle Brown, Auckland
Crown Law, Wellington

Copy to: N Taylor, Auckland
C B Hirschfeld, Auckland

NEVILLE v ATTORNEY-GENERAL [2015] NZHC 1946 [17 August 2015]

Introduction

[1] On Friday, 23 January 2009 on the North Western Motorway in Auckland, a member of the New Zealand Police Armed Offenders Squad (AOS) fired three shots at an armed offender the Police were pursuing. Unfortunately the first shot injured Mr Neville who was driving on the motorway. The second shot wounded the offender, Mr McDonald. Tragically, the last shot killed an innocent courier driver, Halatau Naitoko.

[2] Mr Neville now sues the Attorney-General on behalf of the New Zealand Police alleging a breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). He alleges he had the right not to be subject to disproportionately severe treatment by the Police which was breached when the police officer fired the bullet which injured him.

[3] The defendant applies to strike out Mr Neville’s claim or, in the alternative,

for summary judgment as a defendant.

Background

[4] At about 2.00 pm on 23 January 2009 Mr Neville was driving his Isuzu flatbed truck north on the North Western Motorway at Auckland. He observed an incident occurring on the other side of the motorway and slowed his truck as he approached it.

[5] As Mr Neville slowed he saw police officers were present on the other side of the median barrier of the motorway. Mr McDonald then jumped over the motorway median barrier and ran towards his truck.

[6] Mr Neville noticed that Mr McDonald was being pursued by police officers and in particular AOS members. The AOS members were heavily armed with assault rifles and carried Glock pistols. As Mr McDonald approached his truck, Mr Neville observed an AOS member, who later came to be known as Officer 84, in

front of his truck and another AOS member, who came to be known as Officer 81, to the left side of his truck.

[7] Officer 84 raised his weapon from ‘high ready’ into the firing position and fired three shots in succession. The first bullet fired by Officer 84 penetrated the front windscreen of Mr Neville’s truck. The bullet fragmented into shrapnel. The windscreen shattered and produced glass shards. Mr Neville says his ear drums burst with the change in pressure when the windscreen was shattered. He was also wounded in his arm, torso, neck and face by copper shrapnel from the bullet and glass shards from the windscreen.

[8] The shooting occurred at the conclusion…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NZHC 1946
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the case of Neville v Attorney-General, the plaintiff, Mr Neville, sought damages against the Attorney-General for breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA) which provides that everyone has the right not to be subjected to torture or cruel, degrading, or disproportionately severe treatment or punishment. Mr Neville alleged that he was injured by a bullet fired by Officer 84, a member of the New Zealand Police Armed Offenders Squad, during a pursuit of an armed offender, Mr McDonald. The plaintiff claimed that Officer 84 acted recklessly or was grossly negligent towards him by deliberately firing an unsafe shot directed through the cab of his truck when he was in close proximity. The defendant, the Attorney-General, applied to strike out Mr Neville’s claim or, in the alternative, for summary judgment. The court was required to decide whether Mr Neville's injuries constituted treatment by the Police for the purposes of s 9 of the NZBORA and, if so, whether the facts as pleaded passed the threshold to establish a breach of the right guaranteed by s 9 of the NZBORA. The court concluded that the Police action was not directed at Mr Neville but at Mr McDonald, and there was no reasonably arguable cause of action as a matter of law. The court found that the Police action did not amount to treatment of Mr Neville for the purposes of s 9 of the NZBORA. The court also found that even if the Police action was considered treatment, it was not disproportionately severe. The court struck out Mr Neville’s claim and granted the defendant's application for summary judgment. Costs were reserved to be dealt with by way of memorandum.

Orders