Hearing:	10 November 2016
Court:	Randerson, Duffy and Whata JJ
Counsel:	Appellant in person N M H Whittington and B J Thompson for Second Respondent
Judgment:	9 December 2016 at 11:30am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Whata J)

Mr Wright was unlawfully arrested, detained and charged for refusing to give his particulars when stopped by the police. Hinton J found the arresting officer, Constable Bhosale, and the Attorney General were liable for battery, false imprisonment and breach of s 24 of the New Zealand Bill of Rights Act (BORA).[1] Compensatory damages of $14,000 were awarded. But the Judge refused to make declarations of breach of ss 21 and 23 and dismissed Mr Wright’s claim to exemplary damages. Mr Wright appeals against the refusal to make the desired declarations pursuant to ss 21, 23 and 24 of the BORA, and the refusal to award exemplary damages.
[1]Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 [High Court judgment].
The issues raised by the appeal are noted at [11].

Background

The following facts are drawn from the High Court judgment, there being no dispute about this part of the narrative. In the early morning of 3 May 2013, Constable Bhosale and Constable Bunce were patrolling along Karangahape Road. They stopped a vehicle. Mr Wright was one of the passengers. He is legally trained and knew his rights. Constable Bhosale asked Mr Wright for some form of identification. Mr Wright refused to provide the requested details. Constable Bhosale referred to s 114 of the Land Transport Act 1998 (LTA). Mr Wright stepped out of the car and started to walk away. Constable Bhosale placed an arm out in front of Mr Wright. Mr Wright pushed past. He was arrested for refusing to provide his name and details, handcuffed and searched. He was then taken to the Auckland Central Police Station.
While at the Custody Unit of the police station, Mr Wright was provided with a Notice to Person in Custody document, which advised him that he was being held in legal custody for “B109 — Failed to give name and address on demand”. Mr Wright made a full statement about the circumstances of the arrest and stated s 114 did not apply. He asked the processing officer to look up s 114. The officer did not do this and said he had no jurisdiction over the charge. Constable Bhosale prepared and attempted to hand a copy of the Traffic Offence Notice to Mr Wright, who refused to accept it.
Constable Bhosale took the Custody Charge Sheet and Custody Summary to the Custody Sergeant, Sergeant Field, who approved the charge. Mr Wright was charged and then…

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 Wright v Bhosale

Details

AGLC: Wright v Bhosale [2016] NZCA 593
Case: [2016] NZCA 593
Decision Date: 9 December 2016 at 11:30am

CaseChat Overview and Summary

In Wright v Bhosale, the appellant, Nicholas David Wright, sought to appeal a decision of the High Court in relation to claims of battery, assault, false imprisonment, wrongful arrest, and breaches of the New Zealand Bill of Rights Act (BORA). Constable Vijay Bhosale and the Attorney-General were found liable for battery, false imprisonment, and breach of s 24 of the BORA, and compensatory damages of $14,000 were awarded. Mr Wright sought declarations of breach of ss 21 and 23 and exemplary damages, which were refused by the High Court. The Court of Appeal found that the appeal should be dismissed. There was no breach of s 23 of the BORA, which provides a temporal right to be charged promptly or released, and not a mandatory obligation to have the facts of the charge checked by a supervising officer against the applicable legislation in every case. The Court of Appeal also found that the police discharged their obligation under s 24(a) of the BORA on the disclosure by the prosecutor that the basis for the charge was s 113 of the LTA in combination with the caption summary. The Court found that the conduct of the police did not constitute a search and that it was not necessary to prove intention to do wrong or subjective recklessness in order to obtain exemplary damages. The appeal is dismissed and the appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.

Orders