White v Attorney-General
[2020] NZHC 2499
•24 September 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2020-485-123
[2020] NZHC 2499
UNDER the New Zealand Bill of Rights Act 1990 BETWEEN
DEON MICHEAL WHITE
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 28 August 2020 Appearances:
D Ewan for plaintiff
D Jones and L Dittrich for defendant
Judgment:
24 September 2020
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
Introduction and background
[1] In March 2019 the Department of Corrections charged the plaintiff, Mr Dean White, a convicted prisoner being held at Rimutaka Prison, with disobeying a lawful order contrary to s 128(1)(a) of the Corrections Act 2004. The charge followed an incident in which Mr White had been ordered by a prison officer or officers to remove his clothing for the purposes of a strip search after receiving medical treatment at the Prison’s medical unit and before being returned to his cell.
[2] The Visiting Justice, Mr Lance Pratley, presided over a hearing in June 2019. Mr Pratley later dismissed the charge. In doing so, he concluded that the prison officers had not, prior to issuing the order, had reasonable grounds to believe that the plaintiff was in possession of an unauthorised item (hereinafter, “reasonable grounds”), which
WHITE v THE ATTORNEY-GENERAL [2020] NZHC 2499 [24 September 2020]
was the claimed basis for the order being issued, and accordingly that the order was not a lawful one.
[3] In March Mr White commenced this proceeding against the Attorney-General on behalf of the Department of Corrections in which he alleges various breaches of the New Zealand Bill of Rights Act 1990 arising out of the incident and claiming compensatory and punitive damages.
[4] In June the Attorney-General entered a defence in which he asserted — in three paragraphs — that the prison officers had reasonable grounds, and therefore that the order was lawful.
[5] Mr White now applies pursuant to r 15.1 of the High Court Rules 2016 for an order striking out the relevant paragraphs of the Attorney-General’s defence.
[6] Essentially, what the plaintiff says is that, in his decision, Mr Pratley concluded that the officers did not have reasonable grounds, and that the Crown is not entitled to challenge that finding as it foreshadows doing in its pleadings. That submission is advanced on two bases:
(a)First, it is said that the Crown is estopped from challenging Mr Pratley’s conclusion in the disciplinary proceeding that the officers did not have reasonable grounds by res judicata estoppel; and
(b)Second, it is said that for the Crown to seek to challenge Mr Pratley’s conclusion would amount to an abuse of process.
The legislative context and the Visiting Justice’s decision
[7] Before addressing the parties’ contentions in more detail, I outline the key aspects of the legislation and Mr Pratley’s decision.
[8] As already mentioned, the Department of Corrections laid the charge against the plaintiff pursuant to s 128(1)(a) of the Corrections Act which provides:
128 Offences by prisoner
(1)Every prisoner (whether inside or outside a prison) commits an offence against discipline who—
(a)disobeys any lawful order of an officer or a staff member, or disobeys or fails to comply with any regulation made under this Act or any rule of the prison made under section 33:
…
[9]Obviously, in terms of s 128(1)(a), the order in question must have been lawful.
[10]Section 98 deals with searches and materially provides:
98 Search of prisoners and cells
…
(3)An officer may conduct a strip search of a prisoner—
(a)if the officer—
(i)has reasonable grounds for believing that the prisoner has in his or her possession an unauthorised item; and
…
[11] The procedure for disciplinary proceedings under the Corrections Act is prescribed in the Corrections Regulations 2005, r 33 of which provides:
If the prisoner pleads not guilty and, after hearing all the evidence, the person holding the hearing finds that the case against the prisoner has been proved beyond reasonable doubt, the person holding the hearing must find the prisoner guilty of the offence.
[12] Within that legislative framework, here is how Mr Pratley described the issues with which he needed to deal:
[39]To prove this charge against the defendant the prosecution must prove
beyond reasonable doubt each ingredient of the case.
[40]The ingredients can be summarised as follows:
(a)That Mr White was a “prisoner” when the alleged event occurred; and
(b)That an order was given to Mr White by an officer or staff member; and
(c)That the order was a lawful order; and
(d) That the defendant disobeyed the order. (Emphasis added)
[13]Later in his judgment Mr Pratley addresses the third ingredient:
S. 90 of the Act states (in part):
90 Definition of strip search
(1)For the purposes of this Act, a strip search means a search where the person conducting the search may require the person being searched to remove, raise, lower, or open all or any of the latter person’s clothing.
…
(2)Authority to conduct a strip search —
(a)includes the authority to conduct a visual examination
… of the mouth, nose, ears, and anal and genital areas;
…
S. 98 of the Act states (in part):
(3)An officer may conduct a strip search of a prisoner —
(a)If the officer —
(i)has reasonable grounds for believing that the prisoner has in his or her possession an unauthorised item; and
(ii)has obtained the manager’s approval to the conduct of a strip search;
…
(5)The power to conduct a strip search of a prisoner under subsection (3) may only be exercised —
(a)for the purpose of detecting any unauthorised item; and
(b)if a strip search is necessary in the circumstances for the purpose of detecting an unauthorised item.
Was a strip search necessary?
[50]There is no evidence as to why it was necessary for Mr White to remove his underpants in order that the prison staff could detect an unauthorised item.
[51]The Court of Appeal in Forrest v Attorney-General CA785/2010 [2012] NZCA 125 held, at [15] that “… officers can strip search only if they conclude such a search is ‘necessary in the circumstances for the purposes of detecting an unauthorised item’. This must involve consideration of whether a scanner search or rub-down search would suffice. ”.
[52]In Mitchell v Attorney General CIV-2005-485-1021 [2017] NZHC 2089, Thomas J said:
[15] The information received did not identify any individual as being in possession of cannabis or any other illegal drug. Furthermore, the power to conduct a strip search arises only when “necessary in the circumstances for the purpose of detecting an unauthorised item”. The Act provides for a range of less intrusive measures than a strip search which were available to Prison staff in the circumstances, particularly given what can be considered the relatively vague information received. The Court in Forrest observed that officers planning to strip search must turn their minds to the circumstances and options available to them. This would involve a consideration as to whether other forms of search would suffice. There is nothing to support the suggestion any such steps, for example scanner or rub-down searches, were considered or taken in this case. In those circumstances, it cannot be said a strip search was necessary.
[53]Although there was evidence that “prisoners who are going for medication in the mornings are bringing medication back from there”. There was no evidence about the method of concealment, or how that method of concealment necessitated removal of Mr White’s underwear. Nor is there is [sic] evidence that any other detection method, such as rub-down, was considered, or if an alternative method was considered, why it was ruled out.
[54]Therefore, I conclude that the order given was not lawful. It would thus follow that Mr White cannot be held to have disobeyed a lawful order.
(Again, emphasis added)
[14] Thus, on the basis of his own description of what he had to determine, Mr Pratley concluded that the Department of Corrections had not established to the criminal standard — beyond reasonable doubt — that the prison officers had reasonable grounds, and therefore that the order was lawful.
The parties’ contentions
[15]For Mr White, Mr Ewan advanced the two limbs of the argument identified at
[6] in tandem. I accept that they are so inextricably linked that it would have been difficult to do otherwise. I follow his lead in this regard.
[16] Res judicata estoppel applies where a court, tribunal or other decision maker of competent jurisdiction has determined a cause of action or issue. Except by the exercise of an available right of appeal, it is not open to the parties to that determination to challenge it in subsequent litigation. They are estopped from doing so because res judicata — literally, the thing has been adjudicated upon. The essential policy justification for this is that it is in the public interest that there be an end to litigation and that courts will not reconsider the same dispute.1
[17] It is elementary that for res judicata to apply, there must be identity of parties, identity of subject-matter and sufficient co-extensiveness of the standard of proof.2
[18] There is no real contest here as to the first and second requirements. Mr White was the defendant or respondent in the earlier disciplinary proceeding and is the plaintiff in this proceeding. The Department of Corrections was the prosecutorial authority in the earlier disciplinary proceeding and the Attorney-General is sued for that Department in this proceeding. Standard of proof aside, the issue in each case is the same — whether the officers had reasonable grounds.
[19]It is in relation to the third requirement that the parties part company.
[20] Mr Ewan submitted that the issue of whether the officers had reasonable grounds was the dispositive issue in the earlier disciplinary proceeding and was resolved definitively by Mr Pratley.
[21] Whilst accepting that, Mr Jones submitted that “findings made in prison disciplinary proceedings do not give rise to a substantive right of res judicata estoppel in subsequent civil proceedings, for the same reason that findings made in criminal proceedings will not give rise to res judicata estoppel in subsequent civil proceedings”.
[22] There is high authority for the proposition that findings in criminal proceedings cannot found res judicata estoppel in subsequent civil proceedings, essentially because,
1 For an overview of the principle and where it fits into the wider equitable principles concerning estoppels, see Halsbury’s Laws of England (5th ed, LexisNexis, 2015) vol 12A at [1603] and Spencer Bower & Hundley Res Judicata (5th ed, LexisNexis, 2019) at [1.10].
2 Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110 (CA) at 114.
even where the parties and the subject matter are the same, the different standards of proof involved mean that the issues in the two proceedings are not the same.3 The authorities conventionally cited for this are Maxwell v Commissioner of Inland Revenue,4 DPP v Humphries5 and Hunter v Chief Constable of the West Midlands Police.6 The point can be illustrated by reference to the facts of Maxwell. There, the Crown charged the taxpayer with wilfully making a false return of income. At trial the taxpayer was acquitted. The Court of Appeal concluded that that acquittal could not operate as an estoppel barring the Commissioner from subsequently forming the opinion that the return on which the criminal charge was founded was fraudulent because the issue in the criminal proceeding was whether the taxpayer’s fraud could be established beyond reasonable doubt whereas in the subsequent civil proceeding the Commissioner’s assessment would be tested to the civil standard — on the balance of probabilities.
[23] Mr Jones emphasised that a disciplinary charge under the Corrections Act, whilst not criminal, was a quasi-criminal proceeding (as all disciplinary proceedings are), and that proceedings under the regime established by that Act were more akin to criminal proceedings than standard disciplinary proceedings because the criminal standard of proof applies. Mr Pratley in para [39] of his judgment cited earlier made it clear that he identified the issue of whether or not the officers had reasonable grounds had to be established beyond reasonable doubt and determined the case on that basis. In this civil proceeding the Crown need only establish that the officers had reasonable grounds to the civil standard in advancing its defence. On that basis, Mr Jones submitted that the issues relating to reasonable grounds in the two proceedings were different.
3 Where criminal proceedings result in a conviction it is not of course open to the parties or anyone else to deny the fact of the conviction. In this country, that was established in Jorgensen v News Media (Auckland) [1969] NZLR 961. Following a trial before a judge and jury, Jorgensen was convicted of murder. Subsequently, “Truth” newspaper described him as a murderer. Jorgensen sued Truth alleging that the newspaper had defamed him and signalling that it was his intention in the proceeding to challenge the assertion that he was a murderer. The Court of Appeal had no difficulty in concluding that the conviction was not something that Jorgensen nor anyone else was entitled to attack in subsequent civil proceedings. The position arrived at in Jorgensen was subsequently codified in the Evidence Amendment Act 1980 and is now captured in s 48 of the Evidence Act 2006.
4 Maxwell v Commissioner of Inland Revenue [1962] NZLR 683 (CA).
5 DPP v Humphries [1977] AC 1 (HL).
6 Hunter v Chief Constable of the West Midlands Police [1982] AC 529.
[24]In relation to this Mr Jones referred me to the Supreme Court’s judgment in
Z v Dental Complaints Assessment Committee.7
[25] There, a dental practitioner faced a criminal charge of indecently assaulting a patient. At trial he was acquitted. Then his professional association’s disciplinary body brought professional disciplinary proceedings against him in which the same accusation was made. The question before the Supreme Court was whether the professional disciplinary proceedings constituted an abuse of process because they sought to relitigate a matter resolved in the early criminal proceeding. The majority of the Supreme Court concluded that they did not, primarily because of the different standards of proof involved in the criminal proceedings and the disciplinary proceedings:
[95] In the criminal proceedings the Crown had the onus of proving facts that amounted to indecent assaults as charged to the criminal standard of proof, that is, beyond reasonable doubt. The first step in considering the appellant’s argument that he faces reconsideration of the same issues in relation to the disciplinary process is to ascertain whether the same standard of proof would apply, if the disciplinary process proceeds, as at the trial. If a different, lower standard of proof is appropriate, the argument against allowing the second set of proceedings is weaker. In the context of double jeopardy, Professor M L Friedland has said:
“Can disciplinary action be taken for the same offence after an acquittal in the criminal courts? The answer should depend on the degree of proof required before a disciplinary tribunal. If the degree of proof required is significantly less than that in the criminal courts, then the acquittal should probably have no effect, although it would surely influence the decision whether to commence proceedings. On the other had, if much the same degree of proof is required in each case, then a further hearing for the same cause should be considered a violation of the rule against double jeopardy.”
[26] The case is generally cited for the definitive analysis of the standard of proof required in (most) professional disciplinary proceedings, and the nature of that standard. However, for present purposes, the essential point is that the majority judgment recognises that where an allegation in one proceeding is being assessed having regard to the criminal standard of proof and in another proceeding the same assertion is being assessed against the civil standard of proof, it cannot be said that both proceedings raise the same issue. To put it another way, even if in criminal proceedings a judge or jury concludes that an allegation is not made out to the criminal standard, a court or other
7 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1.
body in subsequent civil proceedings may legitimately conclude that the same allegation is made out to the civil standard.
[27] For the plaintiff, Mr Ewan sought to deal with the Crown’s argument on two interrelated bases:
(a)First, he submitted that Mr Pratley was wrong to have concluded that in order to convict he needed to conclude that the officers had reasonable grounds to the criminal standard. He argued that the existence of reasonable grounds was not an essential element of the charge. Mr Pratley, Mr Ewan continued, would have been entitled to reach a view on that issue to the civil standard. On that basis, Mr Ewan contended, the issue in the disciplinary proceeding was the same issue as the Crown seeks to raise in this civil proceeding;
(b)Second, Mr Ewan submitted that, even if it was correct that Mr Pratley had to determine whether the officers had reasonable grounds to the criminal standard, he went further than that in his judgment, concluding that there was either no evidence before him that they did, or that such evidence as there was was so weak that Mr Pratley would have reached the same conclusion whatever the standard of proof he applied. Mr Ewan summarised this second limb of his argument by inviting the Court to conclude that, rather than merely concluding that the Department of Corrections was unable to establish reasonable grounds beyond reasonable doubt, Mr Pratley made a positive finding to the effect that the prison officers did not have such grounds.
[28] In relation to the first argument, Mr Ewan drew a parallel between traffic prosecutions relating to offences of driving whilst intoxicated and the present case. As he submitted, before being entitled to stop and test a motorist, an officer must have reasonable cause to suspect that the motorist is intoxicated. Mr Ewan referred me to the Court of Appeal’s judgment in Police v Anderson8 where the Court concluded that reasonable cause to suspect under that legislation was not an essential element of the
8 Police v Anderson [1972] NZLR 233.
offence of driving whilst intoxicated and need not be established to the criminal standard. Mr Ewan also relied on the Court of Appeal’s judgment in R v Elvines9 where the Court reached a similar conclusion in relation to evidence of possession for a conviction for receiving.
[29] In reliance on those authorities, Mr Ewan invited the Court to conclude that reasonable grounds was not an essential element of the disciplinary offence in this case.
[30] There is a clear distinction between cases such as Anderson and Elvines and the present case. The Court of Appeal in those cases concluded that the requirement that the law enforcement officer in question had reasonable cause to suspect was not an essential element of the offence, but rather a peripheral component, the essential offences in each case being driving whilst intoxicated and receiving stolen goods knowing them to have been stolen. This case stands in direct contrast because, in terms of s 28(1)(a), the lawfulness or otherwise of the order is an essential aspect of the disciplinary offence, and that lawfulness or otherwise is wholly dependent on the officer having reasonable grounds as defined in s 19.
[31] In my judgment, reasonable grounds in terms of s 19 is an essential element of the disciplinary offence created by s 28(1)(a), and Mr Pratley was correct to conclude that in order to find the disciplinary offence established he had to conclude, beyond reasonable doubt, that the officer had reasonable grounds because only then was it open to him to conclude that the order was a lawful one.
[32] Turning to Mr Ewan’s second argument, I accept his submission that on a fair reading of Mr Pratley’s judgment it would appear that he — Mr Pratley — concluded that there was no convincing evidence that the officer or officers concerned had reasonable cause in this case.
[33] In relation to this argument Mr Ewan placed significant reliance on Gregoriadis v Commissioner of Inland Revenue.10 Indeed, he submitted that Mr White’s case stands or falls on whether Gregoriadis is still good law.
9 R v Elvines CA269/91, 13 December 1991.
10 Above n 2.
[34] The headnote to the report of Gregoriadis accurately sets out the factual background:
Gregoriadis was convicted, in 1976, on charges laid under s 228 of the Land and Income Tax Act 1954 of wilfully making false income tax returns for seven years between 1961 and 1968. On 11 March 1977, Gregoriadis' appeal against conviction was allowed on the ground that evidence had been wrongfully admitted and that the rejection of this evidence was fatal to the prosecution's case. Prior to the conviction, the Commissioner of Inland Revenue had assessed Gregoriadis for penal tax of $7500 for the same seven years. A late notice of objection dated 14 September 1977 was accepted by the Commissioner but the objection itself was disallowed. Following disallowance, the Commissioner was required to state a case to the High Court. On the case stated, the Judge held that Gregoriadis' acquittal on the charges of wilfully making false income tax returns did not prevent him from being chargeable with the penal tax that had been assessed against him. Gregoriadis appealed.
[35] The issue before the Court was whether Mr Gregoriadis’ acquittal prevented the Commissioner from subsequently concluding — as he must have done — that Gregoriadis had wilfully made false income tax returns in order to impose penalties.
[36] The Court of Appeal concluded that it did, notwithstanding a recognition that there were different standards of proof in the criminal proceeding and applying to the Commissioner’s assessment.
[37] The following passage from judgments of Richardson J (for himself and Sir Clifford Richmond) is sufficient to illustrate the reasoning and the principle on which Mr Ewan relies:11
The first (issue) is whether the onus of proof provisions require a different answer. The prosecution had to establish the charges to the criminal standard of beyond reasonable doubt, whereas as has been noted earlier (s 234(2), while imposing on the Commissioner the burden of proof in penal tax objection proceedings, is silent as to the standard that the Commissioner must reach. It is well settled that where the civil onus is applicable the degree of probability required to establish proof may vary and will depend on the gravity of the allegation. In Maxwell North J (p 702) observed that it may be that in civil proceedings grounded on fraud — as here — the standard of proof so closely approximates the standard of proof required in criminal cases “that there is no sufficient reason for not raising the prior verdict as bar in the subsequent civil proceedings. As Cleary J (706) was disposed to assume on this point in favour of the appellant that the burden on the Commissioner in proceedings where he was required to show that the returns were fraudulent or wilfully misleading might not be less than the onus required to be discharged in the prosecution proceedings of establishing that the false return had been wilfully made. In
11 At 116.
principle we see no justification for denying the doctrine of estoppel per rem judicatum where the standard of proof in later proceedings closely approximates the standard in the earlier proceeding. In the present case, too, the acquittal of the appellant did not turn on the standard of proof but on the absence of admissible evidence. Had the standard been a simple preponderance of probabilities the Commissioner would still have failed.
[38] Gregoriadis appears to me to be distinguishable — and clearly so — from the present case in one important respect. There, the Court of Appeal effectively equated the standard of proof required in the criminal proceedings necessary to convict on a charge of tax fraud with the judgment that the Commissioner needed to make to determine that Mr Gregoriadis had wilfully filed false returns. Foreshadowing the Supreme Court’s judgment in Z v Dental Complaints Assessment Committee, the Court of Appeal in Gregoriadis recognised that because the Commissioner effectively had to determine that Mr Gregoriadis had committed fraud by filing the tax returns in the form that he did there was no material difference between the standard of proof required to establish that, even although that assessment was being made in a civil process and in accordance with the civil standard of proof. The same cannot be said in this case. Although Mr Pratley was obliged in the disciplinary proceeding to make the determination as to whether the officers had reasonable grounds to the criminal standard, the nature of the issue is not one which would require a comparable level of proof in this civil proceeding when put forward by way of defence to the claim.
[39] That, however, does not deal with the supplementary observation made by the Court of Appeal in Gregoriadis that in any event the available evidence in the criminal prosecution and to the Commissioner would have been inadequate to meet even the civil standard.
[40] As Mr Jones outlined in his submissions, there was evidence in this case that Mr Pratley might have considered in applying the civil standard, had he been assessing the issue by reference to that standard.
[41] In my view, it would be inappropriate at this interlocutory stage for the Court to assess whether or not that evidence might provide a sufficient basis of the Crown to contend that, on the balance of probabilities, the officers had reasonable grounds.
[42] I also consider it relevant that the defendant has not initiated these proceedings. That is because, generally, it is not an abuse of process for a party to raise matters previously determined in a criminal context in a defence to a civil claim brought against him, her or it.12
[43] For those reasons, my conclusion is that Mr White’s application for an order striking out aspects of the defence must fail.
[44] I reserve costs, not having heard from counsel as to these. I expect counsel will be able to resolve costs. However, if they are unable to do so they may file memoranda in the usual way and I will deal with them on the papers.
Associate Judge Johnston
Solicitors:
Ord Legal, Wellington for the plaintiff
Crown Law Office, Wellington for defendant
12 See Tamworth Industries Ltd v Attorney-General [1998] 1 NZLR 296 (CA) at 303.
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