Currie v Clayton

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeWild J
Judgment Date05 November 2014
Neutral Citation[2014] NZCA 511
Docket NumberCA341/2013
Date05 November 2014
Philippa Currie
First Appellant


Raymond Donnelly & Co
Second Appellant


The Crown Solicitor at Christchurch
Third Appellant


The Attorney-General of New Zealand
Fourth Appellant
Vincent James Clayton
First Respondent


Linda Joyce Westbury
Second Respondent

[2014] NZCA 511


Randerson, Wild and White JJ



Appeal from a High Court decision which declined to strike out the respondents' claim for public law compensation for breach of their rights under the New Zealand Bill of Rights Act 1990 (NZBORA) — cross-appeal by the respondents against the striking out their cause of action for misfeasance in public office — the respondent's had been prosecuted in the Christchurch District Court (DC) in March 2005 — the appellants were the prosecutor at the trial and the Crown Solicitor at Christchurch — a key witness in the Christchurch trial had faced charges before the Wellington DC — the respondents' convictions were quashed when it emerged that the prosecutor had failed to disclose in a letter to counsel and the court part of a sentencing indication from the Wellington DC which said that a discount would be available in the Wellington proceedings against the key witness for his co-operation in the Christchurch trial — whether the prosecutor, as an employee of the Crown Solicitor, held a public office — if so, whether she had used the power or authority of her office in relation to disclosure obligations — whether prosecutors enjoyed immunity from claims for damages or compensation for breach of rights under the NZBORA — whether Baigent damages were available.


J C Pike QC and M J Lillico for Appellants

P N Allan for Respondents

A The appeal is dismissed.

B The cross-appeal is allowed. The order of the High Court striking out the respondents' cause of action for misfeasance in public office is set aside. That cause of action is reinstated.

C The appellants are to pay the respondents' costs for a standard appeal on a band A basis with usual disbursements.



(Given by Wild J)

Table of Contents

Para No



Factual background


The claim brought by Mr Clayton and Ms Westbury


Prosecuting counsel's duties, including the duty of disclosure


The cause of action in misfeasance

Priestley J's judgment


Counsel's opposing submissions


Our decision


Conclusions on the misfeasance issue


The cause of action for breach of NZBORA rights

Priestley J's judgment


Counsel's opposing submissions




(a) Are prosecutors immune from suit?


(b) Section 6(5) of the Crown Proceedings Act 1950


(c) Are damages available against a prosecutor for breaches of the NZBORA?


Conclusions on the NZBORA issue





The two issues for decision on this appeal and cross-appeal from a judgment of Priestley J delivered in the High Court at Christchurch on 23 October 2012 are: 1

  • (a) Did Priestley J err in striking out the respondents' cause of action against the appellants for misfeasance in public office? 2

  • (b) Did the Judge err in not striking out the respondents' cause of action against the appellants for public law compensation for breach of their rights under the New Zealand Bill of Rights Act 1990 (NZBORA)? 3


These two questions are a distillation of the four questions of law upon which Priestley J on 15 November 2012, by consent, granted leave to appeal to this Court. 4 We have set those four questions out in a footnote. 5

Factual background

Along with nine other defendants, Mr Clayton and Ms Westbury were prosecuted in the Christchurch District Court in March 2005. The prosecution resulted from a police investigation called “Operation Rhino”. In general terms, the defendants were charged with receiving stolen goods, materials and equipment from building sites in Christchurch and selling them. Mr Clayton faced a large number of receiving and fraud charges, Ms Westbury also several charges of receiving.


A first trial was terminated in October 2006 by the Judge after one of the defendants became ill.


A second trial began in the Christchurch District Court in July 2007, presided over by Judge Crosbie and with an estimated length of six weeks. Mr Clayton was not represented, but the Judge appointed Mr McCall as counsel assisting the Court to ensure Mr Clayton's defence was properly put. Ms Westbury was represented by Mr Ruth. Mr Machirus, a co-defendant who features later in this judgment, was self-represented and did not have counsel appointed to assist with his defence.


A key witness for the Crown was a man whom we will refer to as L because his name is suppressed. 6 In his submissions to us, Mr Allan for the respondents described L's evidence as “the glue that held the Crown case together”. The evidence had also been described this way in the Crown's opening at the trial. We understand the gist of L's evidence was that he was stealing to order for Mr Clayton, Ms Westbury and others. L had originally been charged jointly with the other defendants. In April 2005 he pleaded guilty to a number of charges of stealing materials and equipment from building sites. He was sentenced on these charges before the first, October 2006, trial, and received credit for the assistance he gave to police. In the first trial he was cross-examined on the assistance he gave to police and his motivation to lie.


Before or during the second, July 2007, trial, the defendants and their counsel became aware that L had been charged with subsequent, unrelated offences in the

Wellington District Court. The offending had largely taken place after the first trial, with the exception of one charge. The defendants understood L was to be sentenced for this offending in Wellington. They were concerned to have the details of L's sentencing, and in particular to know whether he had received any discount on his sentence for his assistance to the police, including giving evidence for the Crown in the defendants' trial

Mr Knowles, counsel for the defendant Mr Cullen, unsuccessfully requested the Wellington District Court for information about the sentencing of L. At the request of the defendants and their counsel, Ms Currie made a fresh request to the Wellington District Court. Ms Currie was counsel for the Crown in the defendants' trial. She made her request to the Court on 13 August 2007, on the letterhead of Raymond, Donnelly & Co. Mr Stanaway, a partner in that firm, is the Crown Solicitor at Christchurch. Ms Currie signed the letter “Crown Solicitor, per Philippa Currie, Partner”. In response, on 20 August 2007, Ms Currie received from the Wellington District Court a sentencing indication given to L on 31 May 2007 by Judge Radford. 7 Two parts of this indication were relevant to the defendants' concern as to whether L had received a sentencing discount or inducement for his assistance to the police. They were:

[4] … Accordingly it seemed to me that, while I am not determining the final sentence at this point, a starting point of something in the region of four to four and a half years was appropriate but then significant discounts had to be given to take account of the guilty pleas which did amount to a significant assistance to everybody because of the complex nature of all the offending and of course significant discount for the matter which involves the Christchurch trial.

[6] I am prepared to agree with [further remand] and grant such a remand to 28 August 2007 at 9.15 am but I make the following observations:

(b) I record that I have indicated the fashion in which I intend to sentence and my reason for doing that is that it must not be thought that the sentence that I am going to impose would be influenced in any way by the course of conduct which may occur in Christchurch. In other words [L] will not influence the sentence that is to be imposed by his conduct in

Christchurch. I am making that point clear as much for [L's] protection and so that the prosecution are not left in a position where it might be suggested that he may have to gain some advantage in these proceedings by the evidence that he may give.

The normal and desirable practice is that a person in L's position is sentenced before he gives evidence for the Crown. That holds true notwithstanding the sequence outlined in [6] and [7] above. If that practice is followed, there can be no doubt about the sentence imposed, and whether it reflected a discount for assistance to the police, including in giving evidence for the Crown in the trial of other alleged offenders.


That course was not followed for L. The explanation appears to be Judge Radford's acceptance of a request by L's counsel that L's sentencing be postponed until the defendants' trial had concluded, so that L could be held in the interim in the remand section of the prison where he was incarcerated. Counsel urged on the Judge that L would be safer in that part of the prison.


On 21 August Ms Currie emailed a letter to all the defendants (it was addressed to their counsel if the defendant was represented) and to the Registrar of the Christchurch District Court. It stated:

5. [L]'s counsel suggested sentencing should be after the Operation Rhino trial, the reason being that if he was a sentenced prisoner, there were concerns regarding his safety. As a remand prisoner however, he has enhanced safety and a further remand was therefore sought by his counsel until after Operation Rhino.

6. Judge Radford was prepared to agree with that and he has recorded:

“I record that I have indicated the fashion in which I intend to sentence, and my reason for doing so is that it must not be thought that...

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