Van Essen v Attorney-General

[2012] NZHC 3368

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV 2010-412-000802 [2012] NZHC 3368

BETWEEN  BRUCE BRENDON VAN ESSEN Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

First Defendant

ANDPETER GIBBONS Fifth Defendant

CIV 2010-412-000803

ANDBETWEEN            JASON PATTERSON Plaintiff

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

First Defendant

ANDGRAHAM SCOTT Fifth Defendant

Hearing:         7 December 2012

Counsel:         K J McCoy for Plaintiffs

FRJ Sinclair and P D Marshall for First Defendant - Attorney-General

D P Robinson for Fifth Defendants

Judgment:      7 December 2012

JUDGMENT NO. 2 OF WHATA J

ON FIFTH DEFENDANTS’ APPLICATION TO STRIKE OUT

[1]      Mr Robinson seeks leave to make application to strike out the claims against the fifth defendants.  His previous application, made earlier this week, was rejected

by me for reasons set out herein.  That judgment should also form the backdrop to

VAN ESSEN V THE ATTORNEY-GENERAL OF NEW ZEALAND HC DUN CIV 2010-412-000802 [7

December 2012]

this ruling.  One contributing factor was my view that it was arguable that bad faith did not need to be proved by the plaintiffs.  Rather, I said there was authority for the proposition that it is for the Crown to demonstrate good faith.

[2]      Mr Robinson renews his application because Mr Starling for the plaintiffs now accepts that the plaintiffs must prove bad faith.   Mr Robinson maintains that there is still no evidence of bad faith so that the plaintiffs’ claims must fail.  He also points to the pleadings which he says do not allege bad faith directly or indirectly.

[3]      I am not prepared to grant leave to make the application to strike out for the following reasons:

(a)      While I accept that the plaintiffs’ concession that they carry the onus to show bad faith is a change of circumstances, the underlying reason for proceeding to full trial remains the same.  In a context where s 21 of the New Zealand Bills of Rights Act 1990 has been breached it is the role of this Court to secure legality and to vindicate rights and this requires strict adherence to minimum standards of fairness both procedurally and substantively;

(b)The question of whether the police or the fifth defendants acted with bad faith is essentially a question of fact and in this case the plaintiffs maintain that the judicial officer was misled by the warrant applications.[1]

[1] Amended statement of claim of Mr Van Essen, paragraphs 9.3.1, 9.3.2, 9.3.17 and the amended statement of claim of Mr Patterson, paragraph 8.3.

(c)      I think it would be inappropriate for me in the fifth day of the hearing to express any concluded view on the evidence to date and whether there is evidence of bad faith.   I will simply observe that there was evidence of apparent conflict of interest insofar as Constable Henderson is the son-in-law of Mr Gibbons and the affidavit filed in support  of  the  warrant  to  search  Mr Van  Essen’s  property  stated

conclusions  without  saying  why,  omits  relevant  information  that

might include misleading information and fails to say why an informant is reliable.  The explanation offered for all of this is that Constable Henderson relied on his father-in-law’s credibility or made the mistake of cutting and pasting from previous draft affidavits. That might be so but it remains available to the plaintiffs to assert some improper purpose that might demonstrate bad faith.

(d)The position for the fifth defendants might, and I emphasise might, be said to be stronger in relation to Mr Patterson’s warrant, there being no direct evidence of bad faith.  But there is an arguable case that a warrant invalid on its face and substantively flawed affords no immunity at all so that bad faith is not an issue.  The point I wish to stress is that it is too early to say this claim is so inarguable that it should  be  struck  out  and  perhaps  more  importantly  I  should  not proffer a view either way given the trial is now mid flight;

(e)      I also think that this is a case where close examination of what bad faith means is required against the full facts.   There are strong and competing policy considerations in play dealing with protection of fundamental rights on the one hand and the efficacy of enforcement procedures on the other.

[4]      Finally, in R v Miles[2] I approached the definition of bad faith on this basis:

[24]     First, bad faith in this context denotes an intentional or deliberate disregard of the rights of affected persons or the duties of the police to the judicial officer. There are various decisions suggesting that something more than deliberate behaviour is needed.  But I simply proceed on the basis that intentional breach of rights or deliberate dereliction of duty to a judicial officer is an act of bad faith. ...

[2] R v Miles [2012] NZHC 1820.

[5]      If that is an apposite test here I am not presently in a position to say whether this threshold has or has not been breached.  This all illustrates why strike out now should not be entertained.  I wish to stress that nothing I have said should be seen to

indicate a view by me on any aspect of the trial and in fairness to Mr Robinson the

test to establish bad faith is a high one and his application is not dismissed lightly by me.  But as I have said, close scrutiny of admitted breaches of fundamental rights is required.

Solicitors:

Christopher B Morrall, Christchurch, for Plaintiffs

Crown Law, Wellington, for First Defendant

Gallaway Cook Allan, Dunedin, for Fifth Defendants