O'Neill v Attorney-General
[2017] NZHC 1491
•30 June 2017
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2016-404-002475
[2017] NZHC 1491
BETWEEN CHRISTOPHER JOSEPH OʼNEILL
Plaintiff
AND
ATTORNEY-GENERAL
First Defendant
THE DEPARTMENT OF CORRECTIONS
Second Defendant
AND
SERCO NEW ZEALAND LIMITED
Third Defendant
Hearing: 22 June 2017 Appearances:
C J OʼNeill the Plaintiff in person S Earl for the Second Defendant L Clark for the Third Defendant
Judgment:
30 June 2017
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN
This judgment was delivered by me on
30.06.17 at 3:30pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
C J OʼNEILL v ATTORNEY-GENERAL [2017] NZHC 1491 [30 June 2017]
The applications
[1] The defendants apply to strike out Mr O’Neill’s proceeding. Mr O’Neill is unrepresented.
Background
[2] On 31 October 2012 Mr O’Neill was sentenced by Judge Blackie in the Manukau District Court on five charges of criminal harassment laid under the Harassment Act 1997, four charges of breaching a restraining order laid under the same Act, and 10 charges relating to breaches of the Postal Services Act 1998.
[3] Mr O’Neill was sentenced to two years imprisonment in respect of the criminal harassment charges, and two months imprisonment in respect of the charges of breaching the restraining order. The latter sentence was imposed by Judge Blackie cumulatively on the sentence for the criminal harassment charges and therefore the overall sentence imposed was two years and two months imprisonment.
[4] Later two warrants of commitment were signed by Judge Blackie, each being in respect of the set of charges for which he was sentenced to imprisonment. The second of those did not state whether that sentence was imposed concurrently or cumulatively on the first set of charges. As the warrants did not refer to the sentences being imposed cumulatively the second defendant calculated Mr O’Neill’s release date on the basis that he was sentenced to a total sentence of 24 months and was therefore a short term prisoner. The effect of this was that Mr O’Neill was assessed to be eligible for automatic release after serving half of his sentence as ss 20 and 86 of the Parole Act 2002 provides. He was released on 7 August 2013 (his statutory release date), on standard release conditions.
[5] However, and because of the cumulative effect of his two sentences Mr O’Neill was to serve longer than two years. Therefore he should have been treated as eligible for parole after serving the non-parole period of one third of his sentence. Ms Earl for the second defendant confirms that on the basis of a sentence of two years two months
imprisonment, and in taking into account the period Mr O’Neill spent on remand, Mr O’Neill’s parole eligibility date was 24 February 2013 and his statutory release date was 6 June 2014.
[6] Counsel advises Mr O’Neill’s release date was calculated in accordance with the practice that existed prior to the Supreme Court’s decision in Booth v R1. If he was in fact a short term prisoner (i.e. two years or less), his release date, now calculated in accordance with the Supreme Court’s decision, should have been 6 June 2013. It is the second defendant’s case that Mr O’Neill remained lawfully detained throughout the period 6 June to 7 August 2013, in accordance with the sentencing order made orally in court – which was a long term sentence (being a total of more than two years) that did not entitle Mr O’Neill to automatic release.
[7] Counsel also relies upon the decision of McCreaner v Ministry of Justice2 and the authorities cited therein, in support of its submission that the plaintiff’s detention remained lawful following his parole eligibility date, and submits that the claim based on unlawful detention/false imprisonment should be struck out.
[8] On or about 3 or 4 October 2013 a further warrant was signed for the second set of charges by Judge Andree-Wiltens for Judge Blackie. That warrant specified that the sentence was imposed cumulatively on the other set of charges. The clear and lawful purpose of that was to correct the earlier warrant that had not noted the two month sentence was a cumulative sentence.
Proceeding background
[9] Mr O’Neill’s original proceeding was filed in the High Court Auckland on 7 November 2016. It was headed:
Under the New Zealand Bill of Rights
In the matter of an application for judicial review.
[10]The first named defendant was noted as:
1 [2017] 1 NZLR 223.
2 [2014] EWHC 569 (QB) at [29] – [33].
Government of New Zealand
[11] On 10 November 2016 the matter was called before Justice Peters. Mr O’Neill appeared in person and Ms Earl appeared for the second defendant. Her Honour:
(a)Struck out the then named first defendant and substituted the Attorney- General in its place.
(b)Directed the second defendant to serve a notice pursuant to HCR 5.21 requiring a more explicit pleading to be filed by Mr O’Neill.
[12] On 24 November 2016 the matter was called again before Peters J in the judicial review list. At that time Her Honour accepted the submission of Ms Earl that Mr O’Neill’s proceeding should not proceed by way of application for judicial review but rather as an ordinary proceeding, noting Mr O’Neill sought compensation in respect of what he contended was his wrongful detention and because he was released on probation. It was, Her Honour said, about whether Mr O’Neill’s rights were transgressed and whether he should be compensated and if so in what sum.
[13]Her Honour noted
(a)Mr O’Neill’s further statement of claim was yet to be filed.
(b)Mr O’Neill’s issues were not matters for judicial review and that the case should be managed as an ordinary civil proceeding.
[14] Her Honour adjourned the matter to the Duty Judge List on 7 December for further directions. Her Honour’s minute noted at that time Ms Earl’s submission that Mr O’Neill’s amended statement of claim did not respond to the second defendant’s notice of 14 November 2016 seeking further particulars and/or a more explicit pleading. Ms Earl had sought a pleading in which Mr O’Neill identified the right or rights he contends had been breached, and when, by whom, how, and the relief sought.
[15] On 3 February 2017 the matter was called before Associate Judge Doogue. At that time Mr O’Neill advised his intention to proceed with his claim on the basis of
the second statement of claim dated 10 November 2016, which was before Peters J on 7 December 2016.
[16] Before Judge Doogue there was discussion regarding whether there would be adequate parties before the Court if the Attorney-General dropped out because the role of the Attorney-General could be no more than as the procedural representative by which the plaintiff sues a department of state, and in this case, the Department of Corrections.
[17] Judge Doogue noted Mr O’Neill was not minded to accept that view of matters claiming the Attorney-General was responsible for the actions of the Department of Corrections but also responsible for “access to justice in New Zealand”. Judge Doogue said he was left with some uncertainty about whether there was any pleaded cause of action in relation to the Attorney-General being responsible for “access to justice”.
[18] Judge Doogue’s minute records there being a discussion regarding Mr O’Neill having yet to provide initial disclosure. Mr O’Neill agreed to do that but required further time. Judge Doogue directed that be provided by 17 March 2017.
[19] On 28 February 2017 Mr O’Neill filed his disclosure documents. These contain 11 bundles labelled Bundle (A) – to Bundle (K).
[20] The core of Mr O’Neill’s concerns is his claim that he was falsely imprisoned. The evidence provided includes:
(a)Bundle (A)
This contains copies of his correspondence with the Department of Corrections following his release from prison.
(b)Bundle (B)
It is headed “Attempts by Police and others to claim me mad and Violent” and “Shows a combined effort of Police and Government to silence a protesting citizen”.
(c)Bundle (C)
This includes correspondence with the District Court to obtain information to facilitate his enquiry.
(d)Bundle (D)
This includes copies of documents provided by Serco in response to Mr O’Neill’s requests, and is also about his issues regarding legal services expected to be provided by a lawyer referred by the Public Defence service.
(e)Bundle (E)
This includes the two warrants and other documents by which he was imprisoned and later released.
(f)Bundle (F)
This includes a copy of correspondence written while Mr O’Neill was imprisoned concerning his claims of having being detained unlawfully.
(g)Bundle (G)
This focuses upon correspondence relating to his claim that a prison officer threatened to kill him.
(h)Bundle (H)
This concerns issues he has regarding official records addressing claims of Mr O’Neill’s physical and mental health.
(i)Bundle (J)
This is about is his complaint to the Auckland District Law Society concerning the lawyer who had been appointed to represent him and issues, and as well arising from his imprisonment and in connect with his challenge of the imprisonment process.
(j)Bundle (K)
This includes a copy of a letter from the Minister of Courts confirming that matters of human rights ought properly be referred to the Human Rights Review Tribunal, an independent decision making body.
Mr O’Neill’s statement of claim
[21] The document prepared by Mr O’Neill did not contain paragraph numbers. Counsel has helpfully added these to assist with references in that document.
[22]The following is an attempt to summarise its content:
1.That the second and third defendants “failed to halt my illegal holding in prison for 164 days and an illegal holding on probation for 134 days”.
2.There was an opportunity to avoid and correct these illegal actions.
3.Refers to a compensation offer of $2,000.
4.There are a number of records including medical records held by, it appears, the defendants.
5.Paragraph 34 pleads “My holding illegally was orchestrated and preventable”.
6.Paragraph 35 states Judge Blackie forged the two warrants. Mr O’Neill says they were not “legal and have never been made so”.
7.Paragraph 36 refers to Serco having handed him “Notification of review of remain time” that he said contained gross inaccuracies including false accounts of violence and escape offences; and that notification informed him of his right to review and to obtain counsel.
8.Paragraph 38 noted Mr O’Neill did not respond to those notifications.
9.Paragraph 40 says the counsel who contacted him to assist did nothing at all.
10.Paragraphs 43 et seq detail Mr O’Neill’s claims of forged warrants including a third one he said was “to hide the truth of the first two”, and about which Mr O’Neill referred the matter to the Judicial Conduct Commissioner. He notes also his complaints about the judges involved being ignored.
11.Paragraphs 48 to 58 recount Mr O’Neill’s attempts to investigate and explain his recourse to the complaint enquiry processes.
12.Paragraphs 59 to 72 refer to the threat by a Serco employee to kill him. Mr O’Neill said he withdrew that complaint under duress, but later a second threat was made by the same employee. Mr O’Neill refers to insufficient action having been engaged to assist and protect him.
13.Paragraph 73 et seq referred to his being released from prison and being placed on probation. He said he was advised on 19 December 2013 that he was no longer on bail.
14.Paragraph 78 refers to having received an offer of $2,000 from Corrections to settle his claims against Corrections.
15.Paragraphs 79 to 84 refer to his complaint about legal services provided.
16.By Paragraphs 88 to 100 Mr O’Neill details his claim for compensation for being wrongly held in prison and on probation. He repeats his claim of having “served a sentence that was not handed down”. He wants an order directing “Police and Government” to release his secret “codename”. He wants a full enquiry into his sentencing and imprisonment and for official records to correct adverse claims about his character.
[23] Mr O’Neill also provides details of claims of inaccuracies in prior prison records concerning him.
The strike out applications
[24] On 6 April 2017 the second defendant filed an application to strike out Mr O’Neill’s statement of claim dated 12 November 2016. A similar application was filed on behalf of the third defendant (Serco) on 7 April 2017.
[25] The Attorney-General remains listed as the first defendant. It is the second defendant’s position that if the proceeding against it is struck out then it will follow that that proceeding against the Attorney-General will likewise be struck out.
[26] Mr O’Neill’s position is that his claim involves issues for which the Attorney- General is separately accountable, on behalf of other Government agencies.
[27] It does not appear there has been a formal filing of the second statement of claim. For present purposes the Court will deal with these applications as if it had been. The document in question is appended to the bundle supplied on behalf of the second defendant for these applications.
[28]The second defendant’s grounds for strike out include:
(a)Mr O’Neill’s claim does not identify a cause or causes of action, and the second defendant is prejudiced by not being fairly informed of the case against it and the claim is therefore likely to cause prejudice or delay.
(b)The claim discloses no reasonably arguable cause of action.
(c)The claim is frivolous or vexatious and/or is otherwise an abuse of the process of the Court (with regard to the allegations relating to inaccuracies of prison records causing his life to be threatened).
(d)The claim refers to actions of parties not named in the proceedings and therefore these aspects are irrelevant, are likely to cause prejudice or delay, are frivolous or vexatious, and/or are otherwise an abuse of the process of the Court.
[29]The third defendant’s application is based on grounds:
(a)That no cause or causes of action against the third defendant are identified.
(b)The statement of claim lacks particularity.
(c)No reasonably arguable cause of action is disclosed.
(d)It is frivolous or vexatious and/or otherwise an abuse of the process of the Court.
(e)It refers to the actions of parties not named in the proceedings and that these aspects are therefore irrelevant.
[30]The second defendant has identified four allegations concerning it:
(a)That Mr O’Neill was unlawfully detained or falsely imprisoned pursuant to invalid/unlawful warrants of commitment.
(b)Mr O’Neill was unlawfully or improperly the subject of release conditions i.e. bail and probation conditions.
(c)That a Corrections Officer by the name of Frast threatened to kill Mr O’Neill during his period of imprisonment.
(d)There have been errors or falsification of prison records regarding Mr O’Neill’s medical and domestic violence history.
[31] Mr O’Neill’s claim also included references to the office of the Ombudsman, the New Zealand Police, the New Zealand Law Society, the Legal Complaints Review Officer, Court Registry staff, his former counsel, and the Parole Board – none of which entities/individuals are named as second defendants. It is clear therefore neither the second nor the third defendant needs to respond to any aspects of the pleadings in relation to those entities.
[32] Of those four allegations only the third relates to events at the prison managed by Serco from August 2011 until July 2015.
[33] Serco’s concern is that it has not been fairly informed of the case against it. Counsel says the pleadings have not disclosed reasonably arguable causes of action that contain sufficient particulars of a case against it.
[34] Ms Clark, counsel for Serco submits the claim as a whole is beyond repair because it does not explicitly plead any causes of action or the relief sought and it contains material that is irrelevant.
[35] Ms Clark submits that if the Court disagrees the claim is beyond repair then radical repairs are required and that the defendant should not be required to plead to the statement of claim in his current form.
Strike out principles
[36] Rule 15.1 of the High Court Rules enables a Court to strike out all or part of a pleading if it discloses no reasonably arguable cause of action; is likely to cause
prejudice or delay; is frivolous or vexatious; or is otherwise an abuse of process of the Court.
[37]General applicable principles include, inter alia:
(a)A cause of action must be so clearly untenable that it cannot possibly succeed;
(b)Only in a clear case and if the Court is satisfied it has all the necessary information.
(c)Jurisdiction to strike out is not excluded because difficult questions of law are involved.3
[38] In Rabson v Judicial Conduct Commissioner4, Cull J summarised the principles relating to frivolous and/or vexatious claims, and claims that represented an abuse of the Court process, as follows:
[29] A frivolous proceeding is one that trifles with the court’s processes and lacks seriousness. A vexatious proceeding is one that vexes the defendant beyond what is usual in most proceedings. There must be some element of impropriety in the claim. In Reekie v Attorney-General the Supreme Court noted:
Vexatiousness might be manifested, for instance, by the unreasonable and tendentious conduct of litigation, extreme claims made against other people involved in the case or perhaps a history of unsuccessful proceedings and unmet costs orders.
[39] The Court has an inherent power to prevent misuse of its procedures where otherwise the administration of justice would be brought into disrepute.
Considerations
Whether imprisonment was unlawful
3 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.
4 [2016] NZHC 2539, [2016] NZAR 1679 at [23].
[40] Essentially the case is about a claim of unlawful detention/false imprisonment. Mr O’Neill claims he was unlawfully detained or falsely imprisoned. He contends that “two warrants were forged by MDC Judge C S Blackie, that were not legal and have never been made so”, and “that the two warrants are invalid is obvious, and further evinced by the forgery of a third, to hide the truth of the first two”.
[41] Mr O’Neill contends his imprisonment was unlawful because the warrants of commitment were invalid i.e. because had there been a reference to the two month sentence being cumulative he would have been entitled to be considered as eligible for parole after serving one third of the total sentence of two years and two months.
[42] It is clear that Mr O’Neill’s detention was lawful. It follows this aspect of his claim should be struck out because it is not reasonably arguable and cannot succeed. No one can be sentenced to prison without a valid committal order5. A warrant of commitment must state briefly the particulars of the offence and direct the detention of the offender in accordance with the sentence.6 If the sentence is imposed by the District Court, any District Court Judge may sign the warrant.7
[43] It is clear that although the warrants did not indicate one sentence was cumulative upon the other, (because s 91 of the Sentencing Act did not include any requirement to specify the overall term of the sentence or how one sentence relates to the other) it is clear the warrant signed by Judge Blackie on 31 October 2012 complied with the requirements of s 91 of the Sentencing Act.
[44] The sentence noted on each warrant is correct as it related to the particular offence in respect of which it was issued. The error was that the second warrant did not include how it was to be treated alongside the sentence specified in the first warrant but clearly each warrant complied with the legislative requirements.
[45] But, even if the Court viewed the warrants as being deficient then that deficiency did not render those warrants invalid because the warrant for the lead charges were not erroneous and the only error that occurred was the failure for the
5 Section 37 Corrections Act 2004.
6 Sentencing Act 2002 s 91(1).
7 Sentencing Act 2002 s 91(6).
second warrant to record it was a cumulative sentence and any deficiency of that warrant is not such that any detention and reliance upon it can be said to be unlawful.
[46] Also it is clear that Mr O’Neill was properly detained in accordance with the oral order of the Judge made in Court.
[47] Any defect in the second warrant, by not referring to the fact that the sentence was cumulative, does not affect the lawfulness of Mr O’Neill’s detention. Those errors are not of a sufficient degree for a basis that the judge’s order on imprisonment could be disowned, nor are they sufficient to suggest that imprisonment may have been unlawful. Mr O’Neill was required to be detained. His rights were not breached just because the prison had not discerned issues raised now by claims of a lack of identification of the subsidiary sentence, as a cumulative one.
[48] Respectfully the Court agrees with counsel’s submission that there is no reasonably arguable cause of action for unlawful detention or false imprisonment. In receiving the plaintiff into custody and detaining him, the second defendant was entitled to rely on the warrants, which were “good on their face”. As noted in Reekie8 every prison manager required under a lawful warrant to receive and detain any prisoner is justified in receiving and detaining that person (s 63(3) Crimes Act 1961).
[49] In the Court’s view Mr O’Neill’s assertions of illegal holding are misplaced; that throughout the entire period of his detention there was a valid warrant in existence and he was not detained beyond his statutory release date. Counsel submits and the Court agrees it cannot be said that at the point at which Mr O’Neill became eligible for parole, and was not referred for consideration of early release, that his detention became unlawful; rather that the only issue that could have arisen as a result was whether he was eligible for consideration for release on parole and the calculation of his release date. As counsel notes there is no legal requirement to release Mr O’Neill at that stage of his sentence and it cannot be said that the lawfulness of his detention was in any way dependent upon a review of his suitability for parole by the Parole Board.
8 Reekie v Attorney-General [2012] NZHC 1867.
[50] If Mr O’Neill has a claim at all it concerned the failure of the second warrant to indicate that sentence was imposed cumulatively upon the first, and that he missed out on a chance to be released earlier than he was. However, as counsel submits there was no guarantee he would have been released earlier.
Threats to kill
[51] The Court accepts it is unclear from the proceeding what the legal basis of this claim is whether it be a claim in tort or for a breach of the New Zealand Bill of Rights Act, or otherwise. As counsel for the third defendant notes, that claim does not identify a cause of action connected to that allegation and nor is there an identifiable legal basis for a claim connected to that allegation and nor does Mr O’Neill identify what loss or harm was caused as a result or what relief he seeks in that regard.
[52] It is clear that by all the material provided by Mr O’Neill in support of his claim that he cannot identify a cause of action with regard to these allegations, and therefore those should be struck out.
Illegal bail/probation
[53] This appears to be a reference by Mr O’Neill to his release on standard conditions. It is not at all clear what cause of action Mr O’Neill relies on and the Court agrees this too should be struck out on the basis that it would cause prejudice and delay of a fair disposal of the present applications. The Court agrees it is inevitable that any relief sought by this claim would be refused because it is unclear what prejudice Mr O’Neill suffered because the imposition of release conditions applies to every offender who is released on parole. At some point in time Mr O’Neill would have been subject to standard release conditions and those if imposed by the Parole Board would not have been for less than six months.
Prison records
[54] Again the Court agrees this aspect of the claim disclosed no cause of action. Mr O’Neill has other causes of action available to him if he seeks to have his records corrected e.g. the Privacy Act.
[55] The Court agrees with counsel there is no proper basis on which to allege either that the records were deliberately falsified or that his life was put at risk as a result of any alleged errors.
Other parties
[56] Regarding reference to other parties named as defendants the Court accepts the submissions of both counsel that there be no requirement of the second and third defendants to plead in respect of those.
Result
[57] Considerable effort has already been provided by this Court to assist Mr O’Neill’s purpose by his proceedings. It is clear Mr O’Neill has committed a great deal of effort and energy in pursuing his claims of wrongful imprisonment. He believes that had his detention warrants referred to the two month sentence being cumulative that he would have been released from detention earlier than he was. That claim is speculative. Although eligible for parole after serving one third of his sentence he may not have been approved for parole release. That would have been a matter for the Parole Board’s consideration.
[58] Mr O’Neill has indulged the term ‘forgery’ by his reference to the two detention warrants in question – indeed even by the third warrant signed by another Judge the clear purpose of which was to make it clear that the two month sentence was a cumulative sentence. Use of the term forgery is misplaced.
[59] There is no doubting the earnestness of Mr O’Neill’s belief in his causes of action. However that is not sufficient to permit his claims to endure. As earlier noted herein Mr O’Neill has recourse to other options with his claims of inaccurate official records of his imprisonment.
Judgment
[60] All causes of action against the second and third defendants are struck out. In that result, it is appropriate to also strike out the proceeding against the Attorney- General.
[61]Costs are to be fixed upon application being made.
Associate Judge Christiansen
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