Nuku v Attorney-General

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-404-002786

[2019] NZHC 2309

BETWEEN

KARL NUKU

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing:

9-10 September 2019

Counsel:

K T Nuku in person

S M Kinsler and S K Shaw for Defendant

Judgment:

13 September 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1]                 This case raises issues relating to the extent to which freedoms guaranteed by the New Zealand Bill of Rights Act 1990 (NZBORA), in particular, the freedom from unreasonable search and seizure set out in s 21 of NZBORA, apply to someone who is, at the time of an alleged unreasonable search and seizure, a prison inmate.

[2]                 The first statement of claim in this matter was filed on 21 November 2017, over three years after the events in question had occurred. That statement of claim named Stephanie Temm, an intelligence analyst employed by the Department of Corrections (Corrections), as the defendant.

[3]                 Although the statement of claim was one which nominally advanced judicial review proceedings, the document was discursive and in narrative form. It contained a lot of material that was evidence or submissions rather than pleadings.

NUKU v ATTORNEY-GENERAL [2019] NZHC 2309 [13 September 2019]

[4]                 What was sought by way of relief were various declarations including one that would have effectively acted as an injunction restraining Ms Temm from  entering Mr Nuku’s cell. Among the other relief sought was an apology from Ms Temm and what was said to be an order of mandamus requiring Corrections to conduct an inquiry.

[5]                 The statement of claim contained a heading “Interlocutory Order” and under that heading other relief was sought which essentially sought to oblige Corrections to provide Mr Nuku with various forms of assistance in advancing the proceedings.

[6]                 By a document filed on 11 May 2018, described as an amended statement of claim, in the place of Ms Temm, Mr Nuku substituted the Attorney-General on behalf of Corrections as the respondent to the proceedings.

[7]                 No objection was taken by the Attorney-General to that substitution and the Court confirmed it on 27 February 2018.

[8]                 The amended statement of claim did not replace the earlier document but added certain additional matters to it. They included:

(a)a claim for Baigent damages in the sum of $20,000;

(b)an allegation that Ms Temm had made an unreasonable decision; and

(c)sought to extend the “injunctive” relief previously sought against only Ms Temm to “all managerial staff within the Department whether at Paremoremo Prison or any other nation-wide prison facilities”.

[9]                 These proceedings were not the first time that Mr Nuku had raised the issue of an alleged unreasonable search of his prison cell on 4 June 2014.

[10]              They had been raised by him before the Court of Appeal in the course of an appeal against conviction on the aggravated robbery and unlawful possession of a firearm charges. The Court of Appeal had held that the allegations could not provide a ground of appeal…