Neville v Attorney-General
| Jurisdiction | New Zealand |
| Judge | Venning J |
| Judgment Date | 17 August 2015 |
| Neutral Citation | [2015] NZHC 1946 |
| Docket Number | CIV-2014-404-000156 |
| Court | High Court |
| Date | 17 August 2015 |
CIV-2014-404-000156
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Application to strike out the plaintiff's claim alleging a breach of s9 New Zealand Bill of Rights Act 1990 (“NZBORA”) (right not to be subjected to torture or cruel treatment) against the New Zealand Police or, in the alternative, for summary judgment — plaintiff had been injured after a police officer fired through the wind screen and back window of his vehicle at an offender who was behind the vehicle — whether the treatment was the firing of the shot by the state agent or the injury to the plaintiff — whether State actions needed to be intentionally directed at the plaintiff in order to constitute treatment for the purposes of s9 NZBORA — whether the shot amounted to treatment for the purpose of s9 NZBORA and if so, whether it was disproportionately severe treatment.
C B Hirschfeld and N Taylor for Plaintiff
P Gunn for Defendant
JUDGMENT OF Venning J
On Friday, 23 January 2009 on the North Western Motorway in Auckland, a member of the New Zealand Police Armed Offenders Squad (AOS) fired three shots at an armed offender the Police were pursuing. Unfortunately the first shot injured Mr Neville who was driving on the motorway. The second shot wounded the offender, Mr McDonald. Tragically, the last shot killed an innocent courier driver, Halatau Naitoko.
Mr Neville now sues the Attorney-General on behalf of the New Zealand Police alleging a breach of s 9 of the New Zealand Bill of Rights Act 1990 (NZBORA). He alleges he had the right not to be subject to disproportionately severe treatment by the Police which was breached when the police officer fired the bullet which injured him.
The defendant applies to strike out Mr Neville's claim or, in the alternative, for summary judgment as a defendant.
At about 2.00 pm on 23 January 2009 Mr Neville was driving his Isuzu flatbed truck north on the North Western Motorway at Auckland. He observed an incident occurring on the other side of the motorway and slowed his truck as he approached it.
As Mr Neville slowed he saw police officers were present on the other side of the median barrier of the motorway. Mr McDonald then jumped over the motorway median barrier and ran towards his truck.
Mr Neville noticed that Mr McDonald was being pursued by police officers and in particular AOS members. The AOS members were heavily armed with assault rifles and carried Glock pistols. As Mr McDonald approached his truck, Mr Neville observed an AOS member, who later came to be known as Officer 84, in front of his truck and another AOS member, who came to be known as Officer 81, to the left side of his truck.
Officer 84 raised his weapon from ‘high ready’ into the firing position and fired three shots in succession. The first bullet fired by Officer 84 penetrated the front windscreen of Mr Neville's truck. The bullet fragmented into shrapnel. The windscreen shattered and produced glass shards. Mr Neville says his ear drums burst with the change in pressure when the windscreen was shattered. He was also wounded in his arm, torso, neck and face by copper shrapnel from the bullet and glass shards from the windscreen.
The shooting occurred at the conclusion of a three phase Police pursuit of Mr McDonald who was armed and dangerous. Throughout the pursuit and at its conclusion, Mr McDonald posed an extreme risk to police officers and members of the public including Mr Neville. At the time when the AOS officers, and in particular Officer 84, followed Mr McDonald over the median barrier they knew that he was armed, that he had presented the firearm he was carrying at Police and civilians, and that he had fired at Police.
Following the tragic death of Mr Naitoko an investigation was carried out by the Independent Police Complaints Authority (IPCA). In a decision delivered in April 2012 the IPCA formed the following opinions which are relevant for present purposes:
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483. The actions of Officers 81 and 84, in firing at Stephen McDonald, were justified and therefore not contrary to law.
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484. The following were undesirable:
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…
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(iii) Officers 81 and 84's shooting was inaccurate and therefore unsafe.
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(iv) the failure by Officer 84 to identify risks in the line of fire.
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…
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The application to strike out is pursued on the basis that Mr Neville's claim discloses no reasonably arguable cause of action because:
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(a) even if the facts as pleaded were made out at trial they would not amount to treatment for the purpose of s 9 of the NZBORA;
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(b) the facts as pleaded would not satisfy the threshold required to establish a breach of the right guaranteed by s 9 of the NZBORA;
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(c) any claim for compensation for grievous bodily harm is a claim for personal injury which is covered under the Accident Compensation Act 2001 and is accordingly barred by s 317 of that Act;
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(d) the claim for compensation for grievous bodily harm is a claim for bodily injury and as such is time barred by s 4(7) of the Limitation Act 1950 as it is brought outside the two year period without the consent of the defendant.
The principles to apply on such an application were discussed by the Court of Appeal in Attorney-General v Prince 1 and endorsed by the Supreme Court in Couch v Attorney-General. 2 The pleaded facts are generally assumed to be correct. However that is not the case of allegations which are entirely speculative and without foundation. The cause of action must be clearly untenable. The Court must be certain it cannot succeed. The jurisdiction is to be exercised sparingly and only in clear cases. On the other hand, it is not excluded by the need to decide difficult questions of law. The Court should be slow to strike out a claim in a developing area of the law.
The application for summary judgment is pursued on the basis that the cause of action cannot succeed because:
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(a) the plaintiff cannot establish that Officer 84 knew at the time he fired the shot it was unsafe nor that it would cause death or severe injury to the plaintiff;
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(b) Police conduct did not amount to treatment for the purpose of s 9 of the NZBORA;
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(c) the facts as pleaded do not pass the threshold required to establish a breach of s 9 of the NZBORA;
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(d) any claim for compensation for grievous bodily harm is a claim for personal injury which is covered under the Accident Compensation Act and is accordingly barred by s 317 of that Act;
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(e) the claim for compensation for grievous bodily harm is a claim for bodily injury and as such is time barred by s 4(7) of the Limitation Act 1950 as it is brought outside the two year period without the consent of the defendant.
The Court may only grant a defendant's application for summary judgment if the defendant satisfies the Court that the claim cannot succeed. 3 A defendant's summary judgment will only succeed where the defendant has a clear answer to the plaintiff which cannot be contradicted. 4 If there is a hypothetical scenario on which the plaintiff could establish his version of facts at trial, summary judgment for the defendant should not be granted. 5
I deal first with the defendant's application for summary judgment on the basis that the plaintiff cannot establish either that Officer 84 knew his shot was unsafe or that it would cause death or severe injury to the plaintiff.
To support the application for summary judgment the defendant has filed affidavits of Ms Scott and Mr Walsh. Ms Scott is a solicitor and the manager of one of the three Police legal services teams in Auckland. She has provided a copy of the IPCA's findings, the statements Officer 84 made to Police and the evidence he gave to the Coroner at the inquest into the death of Mr Naitoko. Mr Walsh is an ESR forensic expert who examined the firearms and Mr Neville's truck. He responds to an affidavit of Mr Bath, filed on behalf of Mr Neville.
In response to the application for summary judgment the plaintiff filed his own affidavit and also an affidavit by Mr Bath. Mr Bath is a licensed film and television armourer, gunsmith and a firearms manufacturer and dealer.
Mr Neville's case is that Mr McDonald was on the deck of his truck sheltering behind the cab and that Officer 84 deliberately shot at him in that position, aiming through both the windscreen and back window of Mr Neville's truck at Mr McDonald. In doing so, Officer 84 acted recklessly. In the statement of claim Mr Neville pleads that Mr McDonald climbed onto the back of his truck whilst it was moving slowly and was crouching behind the cab but visible through the cab's rear
window before Officer 84 fired his first shot. 6
The defendant's case is that Officer 84 was to the front and left side (from Mr Neville's point of view) of Mr Neville's truck and, when he fired the shot that penetrated the front window of the truck, Mr McDonald was at the passenger door of the truck trying to get into the cab.
The evidence reflects these differences. In his affidavit Mr Neville describes observing Mr McDonald being pursued by the police officers, in particular the AOS officers, and says:
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10. The Offender at this point had climbed/swung himself onto the back of my truck whilst it was moving slowly at about five to seven kilometres per hour.
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11. I observed an AOS member, who later came to be known as Officer 84, in front of my truck …
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12. I then observed that the Offender was on the back of my truck at which point I braked heavily, causing the Offender to be thrown against the rear (headboard)...
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