S v The Commissioner of Police and Another

• Jurisdiction: New Zealand
• Judge: Paul Davison J
• Judgment Date: 01 April 2021
• Neutral Citation: [2021] NZHC 743
• Court: High Court
• Docket Number: CIV-2019-419-329
• Date: 01 April 2021

UNDER The Judicial Review Procedure Act 2016 and under Part 30 of the High Court Rules

IN THE MATTER of an application for judicial review of a decision to issue a pre-charge warning under the powers deleted to Sergeant under the Policing Act 2008

Between

S

Applicant

and

The Commissioner of Police

First Respondent

D

Second Respondent

[2021] NZHC 743

Paul Davison J

CIV-2019-419-329

IN THE HIGH COURT OF NEW ZEALAND

HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

Criminal Procedure, Judicial Review — application for judicial review of a decision made by a Detective Constable to issue him with a formal written warning in relation to an allegation that he engaged in sexually grooming a female student at the High School where he was employed as a teacher — whether there was a statutory authority or common law basis for a Police Constable to give a formal warning — consideration of cautions for adult offenders in the United Kingdom — Judicial Review Procedure Act 2016 — High Court Rules 2016 — New Zealand Bill of Rights Act 1990

Appearances:

W C Pyke for Applicant

K Laurenson for Respondents

JUDGMENT OF Paul Davison J

This judgment was delivered by me on 1 April 2021 at 3:30 pm

pursuant to r 11.5 of the High Court Rules.

Introduction

1 S (the applicant) seeks judicial review of a decision made by Detective Constable D (DC D) to issue him with a “formal written warning” in relation to an allegation that he engaged in sexually grooming a female student at the High School where he was employed as a teacher (the warning).

2 The warning was issued to the applicant in a letter dated 20 February 2019 and was entered into the Police National Intelligence Application (NIA) database. The Police subsequently provided details of the warning to the Teaching Council of Aotearoa New Zealand, and to the educational institute which the applicant says made it impossible for him to continue working as a teacher.

3 A formal warning such as was given to the applicant has no statutory basis and, other than for pre-charge warnings which are restricted to comparatively minor offences, there is no specific Police policy governing the issuing of formal warnings which are to be recorded by entry on the Police NIA database. In this judgment I find that the issuing of the warning engaged the New Zealand Bill of Rights Act 1990 rights, and specifically the right to natural justice. Such rights can only be limited by a public decision-maker if the limitation is both reasonable and prescribed by law. The absence of any statutory authority or common law authority for formal warnings, and the lack of any promulgated protocol prescribing the pre-requisite requirements for their use, means that they are not prescribed by law. Accordingly, for the reasons that follow I allow the application for judicial review, and make orders granting the applicant relief and setting aside the formal warning.

Background

4 The applicant was a teacher and Assistant Dean at a High School. In this role he provided pastoral care to students. Ms X was a 15-year-old female student at the High School. The applicant had known her for several years prior to the events that led to the Police issuing him with the warning, through her friendship with his son, who was a contemporary of hers at the school. The applicant initially commenced providing pastoral care and counselling to Ms X after she came to his attention for truancy. As a result the applicant learned that Ms X was struggling with issues at home, and suffering from anxiety and mental health issues including a risk of self-harming. Over the course of the applicant's involvement with Ms X ostensibly for the purposes of providing her with pastoral support and guidance they maintained regular contact by phone calls, meetings and text messages. However, the inappropriate nature of their interactions came to the attention of the applicant's supervisor who made a formal complaint about his behaviour to the deputy principal.

5 At the beginning of 2018, the school principal directed the applicant that he was to cease text message contact with Ms X. However, contrary to that direction, the applicant continued to exchange text messages with Ms X. During the ten week period between 1 July and 11 September 2018 the applicant and Ms X exchanged 1861 text messages. The applicant's messages to Ms X included numerous heart emojis and some messages in which he said he loved her, and that she was the “highlight of every day” for him. He also gave her several gifts despite Ms X repeatedly telling him that she did not want them.

6 Over the course of these communications Ms X told the applicant that she had been sexually abused by someone associated with a member of her family. The applicant encouraged her to report the abuse.

7 On 10 September 2018, Ms X disclosed the sexual abuse she had suffered to a third party. The applicant was in contact with her and encouraged her through the process which resulted in the involvement of Oranga Tamariki and the Police. The following evening the applicant exchanged text messages with Ms X in which she said that she “just kinda want to cry and don't stop … I just want a hug.” Although Ms X had told the applicant that he did not need to go and see her, later that evening around 8.30 pm he drove in his van to where Ms X was working in part-time employment. Ms X came out to meet him and sat with him on the back seat. He closed the door and hugged her. There is no suggestion of the applicant's conduct involving anything more than him briefly hugging Ms X.

8 In the course of the Police investigating Ms X's allegation that she had suffered sexual abuse by a third party they discovered text messages that had been exchanged between the applicant and Ms X. The Police then commenced an investigation into the applicant for suspected indecent communication with a young person. DC D led the investigation. He first spoke to Ms X on 21 November 2018, and again on 2 December 2018. When interviewed by the Police Ms X denied that anything untoward or inappropriate was taking place between her and the applicant, although she described the applicant's contacts with her as being “a bit weird” at times.

9 On 7 December 2018, DC D met with the applicant and spoke to him about his relationship and text communications with Ms X. The applicant admitted having been in frequent text messaging contact with Ms X, and said that he had also spoken frequently to the school guidance counsellor about the contact he was maintaining with Ms X. The applicant confirmed that he had met Ms X at her workplace on 11 September 2018 and that he had given her a hug while they were sitting together in his van. He said he had been concerned for her as she was struggling with just having told her mother about the sexual abuse she had been suffering. The applicant acknowledged that his relationship and contacts with Ms X “probably overstepped boundaries” but he denied any indecent behaviour. He explained that he had been thinking of Ms X as if she was one of his own children.

10 DC D ascertained from other staff at the school that day that the applicant's supervisor had had already made a formal complaint to the deputy principal of the school about the applicant's contacts with Ms X.

11 DC D discussed the matter with his police supervisor, and they concluded that although the applicant's contacts with Ms X were clearly inappropriate between a teacher and a student, there was insufficient evidence to identify any criminal offending. The Police nevertheless decided to make further inquiries and shifted the focus of their investigation from indecent communication with a young person to a potential charge of meeting a young person following sexual grooming. On 17 December DC D obtained a production order to access text messages that had been exchanged between the applicant and Ms X. Pursuant to the production order DC D obtained the 1861 text messages passing between the applicant and Ms X between 1 July 2018 and 11 September 2018. 1

12 On 18 December 2018 Ms X underwent a Specialist Child Witness Interview in which she reiterated her position that the applicant had been supportive of her and that no indecent conduct had taken place.

13 During the course of the Police investigation the principal of the school notified the Teaching Council of the applicant's inappropriate text contacts with Ms X. As a result of the school having notified the Teaching Council, the applicant notified the Teaching Council that he was voluntarily surrendering his teaching certificate and he subsequently resigned his employment as a teacher at the school on 14 January 2019. He did so because he considered the issues raised in the school complaint to the Teaching Council had to be resolved before the Teaching Council before it would be appropriate for him to return to teaching again.

14 On 22 January 2019, DC D conducted a formal recorded interview with the applicant. DC D explained that he wished to speak with him regarding police concerns that his relationship with Ms X was inappropriate and at times possibly indecent. Before proceeding with the interview DC D told the applicant of his rights under the New Zealand Bill of Rights Act 1990 including his right to speak to a lawyer before deciding whether or not to proceed to answer questions. The applicant waived his right to consult with a lawyer and agreed to proceed with the interview.

15 In the course of the interview the applicant explained that Ms X had been distressed about what she had been experiencing at home, and would often contact him and come to see him to talk about what was happening. He said that he “blew it in terms of professional boundaries” because of the “rough...