Pere v Attorney-General - [2022] NZHC 1069

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-1

[2022] NZHC 1069

BETWEEN
IRIHEKE TE KANI MANU PERE

Plaintiff

AND

ATTORNEY-GENERAL

Defendant

Hearing: 21 March 2022

Appearances:

E M Forster and H A Neumegen for the Plaintiff

A M Powell, H M Carrad and C N Tocher for the Defendant

Judgment:

16 May 2022

JUDGMENT OF COOKE J

Table of Contents

The facts [3]

Impacts on Mr Pere [17]

Firearms safety [20]

Officer Z4’s training and qualifications [25]

Other prosecutions/investigations [29]

Was s 23(5) of the Bill of Rights breached? [31]

Arguments[31]

Analysis [33]

Nature and circumstances of the breach [44]

Level of compensation [48]

Conclusion and result [57]

[1] On 16 August 2013 the plaintiff was accidently shot by a member of the New Zealand Armed Offenders Squad while he was detained in their custody. He

PERE v ATTORNEY-GENERAL [2022] NZHC 1069 [16 May 2022]

brings these proceedings seeking compensation for a breach of his right under s 23(5) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights). This provides:

Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[2] The key issues in this case are whether the facts which are agreed between the parties give rise to a breach of this right, and if so, what compensation should be awarded for that breach.

The facts

[3] As indicated the relevant facts have been agreed between the parties in the form of an agreed statement of facts admitted under s 9 of the Evidence Act 2006. The parties and their counsel are to be commended for reaching this agreement, not only because it has allowed for an efficient hearing, but also because it has removed the further stress for the participants yet again giving evidence about these events.

[4] Mr Pere was aged 33 at the time of the accidental shooting. He was living with his mother in Hastings.

[5] He has a complex medical health history and has been diagnosed with depression and social bi-polar disorder. He had suffered previously from psychotic episodes. He was known to police having accrued 41 convictions between April 2000 and April 2003 including for violent offending. He was the subject of an Armed Offender Squad callout in 2009. From August 2011 he was a compulsory patient under the Mental Health (Compulsory Assessment and Treatment) Act 2002 and was subject to an indefinite community treatment order. The order was discharged in July 2013. From this time Mr Pere was a voluntary patient.

[6] The relevant events occurred on 16 August 2013. Mr Pere had ceased taking his medication regularly at this time. He was consuming recreational drugs and experiencing a deterioration in his mental health. Mr Pere’s mother rang the Hawkes Bay District Health Board’s mental health unit seeking assistance. She then attended the Napier Health Centre…

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.

Continue reading Pere v Attorney-General

Details

AGLC: Pere v Attorney-General [2022] NZHC 1069
Case: [2022] NZHC 1069
Decision Date: 16 May 2022

CaseChat Overview and Summary

The case of Pere v Attorney-General involved a claim for compensation for a breach of the plaintiff's right under s 23(5) of the New Zealand Bill of Rights Act 1990, which provides that everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. The plaintiff was accidentally shot by a member of the New Zealand Armed Offenders Squad while he was detained in their custody. The key issues in the case were whether the facts that were agreed between the parties gave rise to a breach of this right, and if so, what compensation should be awarded for that breach.

The court found that the accidental shooting of the plaintiff by the officer involved a breach of the minimum standards of detention arising from the duty to treat detainees with humanity and respect for their inherent dignity. The court held that the harm caused to the plaintiff was clearly inconsistent with the minimum standards, and that the breach of the right did not depend on deliberate conduct. The court also found that there were systemic elements to the failures that led to the breach, including a lack of comprehensive training and clear protocols.

In assessing the level of compensation, the court noted that the plaintiff was not being compensated for the personal injuries he sustained, as they were to be seen as having been compensated for under the Accident Compensation scheme. The court found that an award of $20,000 was appropriate to provide an effective remedy for the infringement of the fundamental right beyond the grant of a declaration. The court granted the declaration sought and awarded $20,000 as compensation.

This case highlights the importance of maintaining minimum standards of treatment for detainees, even in the absence of deliberate conduct. The court found that the accidental harm caused to the plaintiff was still inconsistent with the minimum standards, and that the breach of the right under s 23(5) arose as a consequence of a straightforward analysis. The case also demonstrates the need for systemic improvements in training and protocols to prevent similar incidents from occurring in the future.

Orders