Wright v Attorney-General

[2021] NZHC 2676

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-404-2800

[2021] NZHC 2676

BETWEEN

NICHOLAS DAVID WRIGHT

Plaintiff

AND

ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE

First Defendant

AUCKLAND DISTRICT HEALTH BOARD

Second Defendant

Hearing:

4 and 5 October 2021 (by telephone and MS Teams)

Appearances:

Plaintiff in person (by telephone)

W R Potter for the First Defendant (by MS Teams)
D H McLellan QC and A M Adams for the Second Defendant (by MS Teams)

Judgment:

7 October 2021

JUDGMENT OF CAMPBELL J

(pre-trial evidence issues)

This judgment was delivered by me on 7 October 2021 at 10:00am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

WRIGHT v ATTORNEY-GENERAL as representative of the NEW ZEALAND POLICE [2021] NZHC 2676 [7

October 2021]

Introduction

[1]                 Mr Wright sues the first defendant, the Attorney-General, for two arrests by Police: one on 22 November 2009 and the other on 25 March 2012.

[2]                 Mr Wright filed this proceeding in 2015. A trial is scheduled to begin next Monday 11 October 2021. I am the assigned trial judge.

[3]The parties have raised some evidence issues:

(a)Mr Wright challenges the admissibility of parts of the briefs and some of the documents the first defendant proposes to produce at trial.

(b)The first defendant challenges the admissibility of some of Mr Wright’s proposed evidence.

[4]The parties asked that these issues be resolved before trial.

[5]                 Mr Wright also applied for leave to call witnesses from whom he had not served briefs. He subsequently withdrew that application.

[6]                 Mr Wright also sued the second defendant, the Auckland District Health Board (the Board). There were also pre-trial evidence issues between those parties, on which I also heard submissions. Mr Wright and the Board have since settled.

Factual background

[7]                 The following factual summary is provisional. It reflects my understanding from the parties’ respective submissions to me. I have identified particular points of dispute, but there may be others. It suffices as a framework for identifying the key trial issues, in light of which the various evidential issues are to be resolved.

[8]Mr Wright practised as a barrister and solicitor from 1995 until 2011.

[9]                 On 22 November 2009, Mr Wright was at home with his mother, his partner and his two children. His mother was concerned at his behaviour and called her husband (Mr Wright’s father), who was in Taupo. Mr Wright’s father made a 111 call.

[10]            Two Police officers came to Mr Wright’s house. When they arrived, Mr Wright’s mother spoke to them outside. There is a dispute as to what Mr Wright’s mother told the officers.

[11]            Mr Wright’s mother went into the house and sought to have the children come with her. Mr Wright reacted angrily and yelled at her to leave the house. Hearing this, the Police officers entered the house and went to the room where Mr Wright and his children were. Mr Wright objected to the officers’ presence. He told them any implied licence to enter was revoked and asked them to leave.

[12]            There is a dispute about precisely what happened next. In due course, however, one of the officers told Mr Wright he was under arrest. Mr Wright was restrained, handcuffed and sprayed with pepper spray.

[13]            Mr Wright was taken to a Police station. He says he was held without charge and that Police would not give him the means to record a contemporary statement.

[14]            Mr Wright was, on 30 November 2009, charged with assaulting a Police officer in the execution of his duty and resisting arrest. There was some delay in prosecuting the charges. Eventually the Police decided not to call evidence and the charges were dismissed.

[15]            The second arrest occurred a few years later, in March 2012. Mr Wright was at an inner-city petrol station at about 6.30 am. He had a disagreement with a staff member. He asked for the manager to be called. Mr Wright says he was not asked to leave or told he was unwelcome. He says he was not a nuisance.

[16]            Someone contacted Police. Police arrived and suggested Mr Wright leave. Mr Wright says he responded that he had not been asked to leave by an occupier and had

every right to stay. A Police sergeant arrived and spoke to a staff member. The sergeant told Mr Wright that “the boss man says you have to go”.

[17]            Mr Wright did not leave. He said he wanted to hear that from the staff member. Mr Wright was arrested for trespass. He alleges Police handled him roughly.

[18]            Mr Wright was taken to a Police station. He says his requests to make a statement or to have blood taken (to establish his sobriety) were refused. He was released on bail that afternoon after spending nine hours in custody. He was given the opportunity to return to the Police station and make a statement. He did so. His statement was recorded—Mr Wright alleges deceitfully—by the sergeant.

[19]            Mr Wright was charged with trespass and resisting arrest. There was a trial. The sergeant did not give evidence and the Police officers who did, Mr Wright alleges, colluded in giving false evidence. The charges were dismissed. Mr Wright says he is still affected by his memory of his treatment by the Police.

[20]            Mr Wright alleges that there were clear errors of fact and law rendering both arrests unauthorised. He sues the Attorney-General for breach of rights affirmed in the New Zealand Bill of Rights Act 1990 (the BORA).

[21]            Mr Wright also claims breach of his rights under the BORA in the manner in which the first defendant has responded to his complaints and defended this proceeding.

Key trial issues

[22]            Key trial issues, as relevant to the evidential issues I have to resolve, are as follows.

First arrest

[23]            Did the Police officers have a lawful basis for entering Mr Wright’s home pursuant to invitation, s 317(2) of the Crimes Act 1961 or the doctrine of necessity? In particular:

(a)In terms of s 317(2), did the Police officers believe, on reasonable and probable grounds, that an offence that would be likely to cause immediate and serious injury to Mr Wright’s children was about to be committed?

(b)In terms of the doctrine of necessity, did the Police officers have a reasonable belief that the physical safety of the children was endangered?

Second arrest

[24]            Did the Police officers have good cause to suspect Mr Wright was committing the offence of trespass? In particular, did the officers reasonably believe:

(a)Mr Wright had been asked to leave the premises?

(b)Mr Wright had then been warned to leave the premises on behalf of an occupier?

[25]Were Police actions subsequent to Mr Wright’s arrest lawful?

Mr Wright’s challenges to the first defendant’s evidence

First arrest – evidence of 111 call

[26]Mr Wright objects to the following evidence:

(a)A brief of evidence of Annette Brown, who received the 111 call made by Mr Wright’s father shortly before the first arrest.

(b)The following documents referred to by Mrs Brown in her brief:1

(i)A transcript and recording of the 111 call.

1      Mr Wright also objected to an event chronology (an internal Police document) relating to the call. He withdrew that objection during the hearing.

(ii)Her brief provided for the prosecution of Mr Wright.

[27]            In the 111 call, Mr Wright’s father said Mr Wright was on drugs, behaving in a manic way with a very bad temper, that both women at the house felt threatened and were very frightened, that Mr Wright was behaving violently towards them and his children but that he had not actually inflicted any violence yet.

[28]            Mr Wright submitted his father had no first-hand knowledge of the information he was relaying in the 111 call. He was merely relaying (inaccurately) what he had been told by Mr Wright’s mother. Mr Wright submitted the evidence of the 111 call was irrelevant, unreliable, significantly prejudicial to him and hearsay.

[29]I do not accept this submission. As to relevance, Mr Wright made two points:

(a)Relying on Dehn v Attorney-General,2 he submitted that the “reasonable and probable grounds” test in s 317(2) must be met on the basis of “objective facts”. He said the information relayed by his father in the 111 call was not objective fact and was therefore irrelevant.

(b)The only information relayed by Mrs Brown to the officers (and therefore the only information relevant to s 317(2) or the doctrine of necessity) was that recorded in a Police document called an event chronology.

[30]            Mr Wright’s first submission misunderstands the test in s 317(2) and Dehn. The test has an objective element, in that the officer must not only believe an offence is about to be committed but must also have reasonable (and probable) grounds for that belief. This objective element does not require that the grounds are based on “objective facts”, and nothing in Dehn suggests otherwise.3 As to Mr Wright’s second submission, the proposition on which it is based is disputed by the first defendant, who

2      Dehn v Attorney-General [1988] 2 NZLR 564 (HC).

3      In Dehn, Tipping J said (at 577) those entering the premises must believe an offence is about to be committed “and there must be reasonable and probable grounds for that belief”. In that case the test was not met, but that was because the officers did not have the requisite belief.

says all of the information in the 111 call was relayed to the officers. I cannot resolve that dispute pre-trial.

[31]            Mrs Brown’s evidence and the 111 call documents are relevant to determining the information available to the arresting officers when they attended Mr Wright’s property. That, in turn, is plainly relevant to determining whether Police had a lawful basis for entering the property (either under s 317(2) of the Crimes Act or the doctrine of necessity). The evidence of the 111 call easily passes the relevance threshold in s  7 of the Evidence Act 2006. I reject Mr Wright’s submission the evidence is irrelevant.

[32]            As to reliability, Mr Wright identified several matters that, he said, his father had got wrong in the call. He said his mother explained, in her brief of evidence, that she overstated her concerns in her call to Mr Wright’s father and omitted important information. This submission is, again, based on a misunderstanding of s 317(2) and of the doctrine of necessity. The evidence is being led to determine the information available to the officers. As to that, the evidence could hardly be more reliable: it includes a recording and transcript of the 111 call. Mr Wright’s submission goes to whether his father was reliably describing the underlying facts, but that is irrelevant: above, [30].

[33]            As to Mr Wright’s submission that the evidence is prejudicial, prejudice itself is not a basis for excluding the evidence. Section 8 of the Evidence Act is engaged only where the evidence carries a risk of unfair prejudice. Unfair prejudice will generally arise from a risk of impermissible reasoning. There is none here.

[34]            Finally, the evidence is not hearsay. It is not being offered to prove the truth of what Mr Wright’s father said. It is being offered to prove what his father said. In his submissions Mr Wright described this distinction as “semantic”. That is not so. The distinction is at the heart of the definition of “hearsay evidence” in the Evidence Act.

[35]In conclusion, I reject Mr Wright’s objection to the evidence of the 111 call.

Second arrest – statements of Sergeant Novata

[36]            Sergeant Anthony Novata oversaw the arrest of Mr Wright on 25 March 2012. He made three written statements:

(a)Handwritten notebook entries dated 25 March 2012. These are Sergeant Novata’s record of an interview he conducted with Mr Wright that day;

(b)Another handwritten notebook entry, undated. This is Sergeant Novata’s record of steps taken in relation to the interview with Mr Wright and his handling of complaints made by Mr Wright against him;

(c)A brief of evidence for the prosecution of Mr Wright following the second arrest. The brief is undated and unsigned. Sergeant Novata did not give evidence at the trial.

[37]            The first defendant wishes to adduce these statements in evidence, but he will not be calling Sergeant Novata. The statements are therefore hearsay. The first defendant has applied for an order that the statements be admitted under s 18 of the Evidence Act. The first defendant says Sergeant Novata is unavailable as a witness and the circumstances relating to the statements provide reasonable assurance they are reliable.

[38]            Mr Wright has responsibly accepted that Sergeant Novata is unavailable as a witness. But he opposes admission of Sergeant Novata’s brief of evidence under s 18. He says:

(a)The circumstances relating to the statements do not provide reasonable assurance they are reliable;

(b)The brief includes uncorroborated evidence on a key issue (namely, whether the Police officers had been properly authorised to act on behalf of the occupier);

(c)Admission of the statements would be unfairly prejudicial because Mr Wright would have no opportunity to cross-examine Sergeant Novata.

[39]            Section 18 requires that the circumstances provide “reasonable assurance” of reliability. This is sometimes described, accurately, as threshold reliability as opposed to ultimate reliability. This is because a determination that the threshold has been crossed simply means that the evidence is admissible (though still subject to possible exclusion under other provisions such as s 8). If admitted, it still remains for the fact- finder at trial to determine, in the light of all the evidence, how reliable the evidence is and therefore what weight will be given to it. Section 18 must be applied in this context.

[40]            Section 16 provides that, for the purpose of assessing threshold reliability under s 18, the circumstances relating to the hearsay statement include:

(a)The nature of the statement;

(b)The contents of the statement;

(c)The circumstances that relate to the making of the statement;

(d)Any circumstances that relate to the veracity of the person who made the statement;

(e)Any circumstances that relate to the accuracy of the observation of that person.

[41]            Mr Potter submitted, on behalf of the first defendant, that the circumstances relating to Sergeant Novata’s statements provide reasonable assurance they are reliable. He made detailed submissions. In summary, his key points were:

(a)Sergeant Novata made the statements in the course of his duties as a sworn officer;

(b)At the time he made the statements, he had almost 30 years’ experience in policing. It is a reasonable inference he was well practiced at observation, recording interviews and preparing documents for prosecutions;

(c)The statements appear to be contemporaneous records of the events they describe;

(d)There is considerable consistency between the notebook entries and briefs of evidence of other witnesses (including Mr Wright’s brief);

(e)There is considerable consistency between Sergeant Novata’s brief and the statements and evidence of other officers.

[42]            Mr Wright made forceful submissions to the contrary. He focussed on Sergeant Novata’s brief. He noted this was unsigned and undated. He said there was insufficient evidence as to when and under what circumstances the brief was created. Mr Wright submitted there was every motivation for Sergeant Novata to have prepared the brief after the trial and even after this proceeding was commenced. This was because Mr Wright said he was exonerated at trial and the absence of evidence from Sergeant Novata was a key reason for that. Mr Wright said Sergeant Novata knew Mr Wright intended to sue Police for false arrest and knew the absence of a brief from him on the file would hurt the future defence of a civil proceeding. Mr Wright said it would not be surprising if Sergeant Novata sought to include a draft brief later to “bolster the file”.

[43]            In my view the threshold in s 18 is clearly met, for the reasons provided by Mr Potter that I have summarised above, and notwithstanding Mr Wright’s submissions. Among other things, Mr Wright’s submissions largely depend on the theory that Sergeant Novata created the brief after the trial. The evidence of the officer in charge of preparing the file for prosecution (still to be tested at trial, of course) will be that the brief was created before trial. To be clear, Mr Wright can still pursue his submissions at trial (in terms of the ultimate reliability of Sergeant Novata’s statements).

[44]I therefore conclude the statements are admissible under s 18.

[45]            That is not the end of the matter. Irrespective of a finding of admissibility under s 18, the Court must exclude evidence under s 8 if its probative value is outweighed by the risk the evidence will have an unfairly prejudicial effect on the proceeding. Mr Wright submits the statements should be excluded. He says his lack of opportunity to cross-examine Sergeant Novata means that admission of the statements creates a risk of unfair prejudice to him that will outweigh any probative value of the evidence.

[46]            The inability to cross-examine a witness is inherent in the admission of all hearsay evidence. It cannot be determinative under s 8, otherwise there would be no point to the admission gateway in s 18. Mr Wright appeared to acknowledge this. He submitted the inability to cross-examine the putative witness may be crucial where:4

(a)There are grounds to believe the witness would have recanted or corrected statements of fact in the hearsay statement; and

(b)There is no corroborating or independent evidence supporting key facts.

[47]            In relation to the first point, Mr Wright submitted other Police officers were present during the arrest and all described the arrest in the same way as Sergeant Novata. Mr Wright submitted that during his criminal trial they were all forced to admit they had misrepresented the facts in their written briefs. He said they had all colluded in the same lie and there was no reason to believe Sergeant Novata would not similarly recant his evidence.

[48]            I asked Mr Wright to point me to the evidence that the Police officers at his criminal trial admitted they had misrepresented facts in their briefs. Mr Wright referred me to the notes of evidence from that trial. Those notes run to 61 pages. Mr Wright did not identify any particular passages in the notes recording the admissions.

4      Mr Wright relied on R v Bishop HC Gisborne CRI-2008-416-3, 28 February 2008.

[49]            Mr Potter said there were no such admissions by the officers at the criminal trial. He also told me those officers would be giving evidence in this proceeding.

[50]            On the second point, Mr Wright said Sergeant Novata’s brief addressed a key issue not addressed by the other Police officers. Sergeant Novata was the officer who is said to have received the request from a staff member to ask Mr Wright to leave the premises. Mr Wright said no-one else was present during that discussion and no corroborative evidence was being produced about the request. He says that without Sergeant Novata’s statement the first defendant has no evidence supporting its positive defence that arresting Mr Wright for trespass was a lawful act.

[51]            Again, Mr Potter disputed this. He referred me to the briefs of four other witnesses who would give evidence that Mr Wright was asked to leave the premises by or on behalf of a staff member. He said these briefs were consistent with Sergeant Novata’s brief.

[52]            In my view there is no risk of unfair prejudice to Mr Wright in his inability to cross-examine Sergeant Novata:

(a)There seems little likelihood Sergeant Novata would have recanted. Mr Wright accepted he agrees with almost everything in Sergeant Novata’s brief, apart from the evidence about authorisation from the staff member. If it is the case that all the other officers admitted at the earlier trial they had misrepresented facts in their briefs, Mr Wright will have the opportunity to establish that at the upcoming trial by cross- examining those officers.5 If he succeeds, it is difficult to see what prejudice he will suffer from being unable to cross-examine Sergeant Novata;

(b)I do not accept Mr Wright’s submission that Sergeant Novata’s statement would be the only evidence supporting the first defendant’s contention that Mr Wright was asked, on behalf of an occupier of the

5      I was unable to find any such admissions in the notes of evidence from the criminal trial. However, in the time available to me, and without any pinpoint references from Mr Wright, I was unable to read the notes closely.

premises, to leave. It is apparent from a quick review of the briefs to which Mr Potter referred me that there will be other such evidence. Mr Wright will be able to challenge that evidence through cross- examination at the trial.

[53]            For these reasons I order that Sergeant Novata’s statements may be admitted as evidence at trial.

Jobsheets of Constable Darvill

[54]            The first defendant has included within the common bundle five “jobsheets” made by Constable Anthony Darvill. These record details of phone conversations with Mr Wright’s mother, Mrs Wright. In his written submissions Mr Wright objected to the admission of these documents on the ground they are hearsay. Mr Wright did not pursue the objection in his oral submissions, but nor did he withdraw it.

[55]            The jobsheets are not hearsay, as both Mrs Wright and Constable Darvill are to be called as witnesses.

Jobsheet of Constable Sun

[56]            The first defendant has included within the common bundle a jobsheet made by Constable Yiliang Sun. Constable Sun was one of the officers attending the first arrest. The jobsheet contains his account of that event. In his written submissions Mr Wright said the document could remain in the bundle as an aid to memory and for cross-examination. But he said the document was hearsay. He sought an order it could not be used as evidence of the truth of its content. Mr Wright did not elaborate on this in his oral submissions.

[57]            Constable Sun will be a witness. The jobsheet records statements made by Mrs Wright. She will also be a witness. The jobsheet is not hearsay.

Jobsheet of Detective Sergeant Williams

[58]            The common bundle includes a jobsheet of Detective Sergeant Mike Williams dated 8 April 2014. It records enquiries he made following Mr Wright’s complaint to

the Independent Police Complaints Authority. It summarises phone calls with Mr Wright, Mrs Wright, Mr Wright’s former partner [Ms B] and Sergeant Stephen Waugh. All except [Ms B] will be witnesses at trial.

[59]            In his written submissions Mr Wright objected to the admission of the jobsheet on the ground it is hearsay. Mr Wright did not elaborate on this in his oral submissions.

[60]            Mr Potter said the jobsheet was potentially relevant for two reasons. It recorded efforts by the first defendant to respond to Mr Wright’s complaint in 2014. It also recorded the position of the persons contacted by the detective. He acknowledged that, to the extent either was a hearsay purpose, the only route for admission was as a business record under s 19 of the Evidence Act. Mr Wright did not make any submissions on s 19.

[61]            The jobsheet is hearsay for both of the purposes identified by Mr Potter. It can only be admissible under s 19.

[62]               Section 19 applies to “business records”, as defined in s 16. The jobsheet is clearly within the general definition of business record. It was made by Detective Sergeant Williams in the course of his duties, and he had personal knowledge of the matters dealt with in the information from which the jobsheet was made.

[63] However, the s 16 definition has a carve out for any Police record “that contains any statement or interview by or with an eye witness, or a complainant, or any other person who purports to have knowledge or information about the circumstances of alleged offending or the issues in dispute in a civil proceeding”. This carve out was introduced by the Evidence Amendment Act 2016. It enacted the Law Commission’s recommendation (in its 2013 review of the Evidence Act) that the definition of “business record” should be amended to exclude “police documents containing statements or interviews with eyewitnesses or victims”.6

[64]            The carve out does not apply here. The jobsheet is clearly a “Police record” and it contains statements by or interviews with the persons I have previously

6      Law Commission The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 3.33 and R3.

identified. But they were not purporting to have knowledge or information about alleged offending – by the time the jobsheet was created in 2014, there was no alleged offending. Nor were those persons purporting to have knowledge or information about the issues in dispute in a civil proceeding. There was no relevant civil proceeding at that stage.

[65]            I therefore conclude the jobsheet is a business record. I am also satisfied no useful purpose would be served by requiring Detective Sergeant Williams to be a witness as he could not reasonably expect to recollect the matters dealt with in the jobsheet. The interviews were conducted more than seven years ago. The interviews were by phone and the jobsheet suggests they were brief. The jobsheet records repeated unsuccessful attempts to speak to Mr Wright by phone. It is most unlikely the detective would be able to recollect such matters.

[66]I conclude, therefore, that the jobsheet is admissible.

Prosecution brief of evidence of Mrs Wright

[67]            The first defendant intends to rely on a brief of evidence of Mrs Wright that was prepared for the prosecution of Mr Wright in respect of the first arrest. In his written submissions Mr Wright said he was content for it to remain in the common bundle but on the proviso it could not be relied on for the truth of its contents. He submitted it was hearsay and inherently unreliable. He said the brief was prepared by Constable Darvill and Mrs Wright refused to sign it.

[68]            The brief is not hearsay, as Mrs Wright is to be a witness. As to reliability, Mrs Wright appears to have crossed out parts of the brief but initialled the pages. Reliability can only be resolved at trial.

[69]Mrs Wright’s prosecution brief may be admitted.

First defendant’s challenges to Mr Wright’s evidence

[70]            The first defendant challenged several aspects of the evidence that Mr Wright proposed to adduce. Before the hearing Mr Wright filed submissions in response,

saying he largely accepted the first defendant’s objections. Mr Wright said he would edit his brief to remove evidence he accepted was inadmissible. As a consequence of Mr Wright’s response, these objections were only briefly addressed at the hearing. There was only one matter that remained in dispute.

[71]            Because Mr Wright has yet to serve an edited version of his brief, it is appropriate I make directions to reflect the objections he has accepted. Accordingly:

(a)The “Thompson document” (304.1319) is inadmissible;

(b)References in Mr Wright’s brief to hearsay statements (including former affidavits) of Ms Thompson are inadmissible and must be removed;

(c)Mr Wright is to remove from his brief any material in the nature of submissions.

[72]            The one matter remaining in dispute concerned the second and third sentences of the first paragraph of Mr Wright’s brief. There Mr Wright says he confirms the truth of his current statement of claim “to the best of my knowledge”. He then purports to “treat the facts asserted in the claim as incorporated and stated here in evidence”.

[73]            The first defendant objected to this. Mr Potter said it was important to distinguish Mr Wright’s evidence (given under oath or affirmation and subject to cross-examination) from the pleadings. Mr Wright’s response was that cross referencing his brief was a complex exercise and he sought “only to ensure that no critical detail was missed”.

[74]            I accept the first defendant’s objection. If Mr Wright wishes to give evidence on a particular matter, he must do so in the brief itself. It is not sufficient for him to say he is “treating” assertions found in another document – particularly a pleading, which serves a very different purpose – as stated in his brief, nor to make a general confirmation of the truth of those assertions. I direct that the two sentences in question are to be removed from his brief.

[75]            I also direct that, in editing Mr Wright’s brief to take account of the above directions, any alterations must consist of excisions only. This is not an opportunity for Mr Wright to edit or otherwise change the balance of his brief.

Result

[76]I reject Mr Wright’s objections to the first defendant’s evidence.

[77]            I uphold the first defendant’s objections to Mr Wright’s evidence and make the directions set out at [71], [74] and [75].

[78]The first defendant is entitled to costs.

Campbell J