The Attorney-General of New Zealand v Mervyn Chapman

• Jurisdiction: New Zealand
• Judge: Glazebrook J
• Judgment Date: 25 November 2009
• Neutral Citation: [2009] NZCA 552
• Docket Number: CA245/2008
• Court: Court of Appeal
• Date: 25 November 2009

Between

The Attorney-General of New Zealand

Applicant

and

Mervyn Chapman

Respondent

[2009] NZCA 552

Court:

Glazebrook, Chambers and O'Regan JJ

CA245/2008

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

D B Collins QC, C C Inglis and C A Griffin for Applicant

R E Harrison QC, A J McKenzie and K H Cook for Respondent

JUDGMENT OF THE COURT

A The questions are answered in the manner set out at [109].

B Costs for a complex appeal on a Band B basis plus usual disbursements are awarded to the respondent. We certify for three counsel.

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

	Para No
Introduction	[1]
Is Bill of Rights compensation an available remedy?	[9]
Crown submissions	[9]
Mr Chapman's submissions	[20]
Issues	[24]
Baigent's Case and Auckland Unemployed	[26]
Subsequent case law in this Court	[48]
Supreme Court cases	[55]
Law Commission response	[58]
Is Baigent's Case limited to acts by the executive?	[68]
Has Maharaj been overruled?	[81]
Is the action an inappropriate collateral challenge to criminal proceedings?	[90]
Is the Attorney-General the proper defendant?	[92]
Submissions	[92]
Our assessment	[94]
Does the Attorney-General have the benefit of judicial immunities?	[98]
Submissions	[98]
Our assessment	[100]
Is Bill of Rights compensation an appropriate remedy?	[102]
Submissions	[102]
Our assessment	[105]
Conclusion and costs	[109]

Introduction

1 On 18 May 2000, Mr Chapman (then called Mr Finlayson) was sentenced to six years imprisonment for a number of sexual offences against a nine year old boy. On 14 June 2000, he filed a notice of appeal against his conviction. Legal aid was declined and, on 19 October 2000, the appeal was dismissed on the papers in accordance with the ex parte appeal process in operation at the time: R v Finlayson CA186/00 19 October 2000 at [2].

2 In R v Taito [2003] 3 NZLR 577, the Privy Council held that the manner of dealing with legal aid applications and the ex parte appeal process, which existed at the time of Mr Chapman's original appeal, were unlawful and in breach of ss 25(a), 25(h) and 27(1) of the New Zealand Bill of Rights Act 1990 (Bill of Rights). Mr Chapman was not one of the Taito appellants but he was granted a new appeal following R v Smith [2002] 20 CRNZ 124 (CA). In Smith, this Court held that it had inherent power to set aside determinations of appeals, where there were serious errors in breach of natural justice of the kind identified in Taito.

3 Mr Chapman received legal aid for the hearing of his new appeal. The appeal was allowed on the ground that the trial Judge did not take steps to balance the replaying of the complainant's police video interview to the jury during their deliberations: R v Finlayson CA228/03 27 November 2003. This had not been a ground of Mr Chapman's original appeal. However, Dr Collins QC, on behalf of the Attorney-General, accepted that the issue had been dealt with by this Court in R v S CA215/00 28 August 2000, a case decided before Mr Chapman's first appeal was determined.

4 The Court ordered a retrial, which was scheduled to commence on 19 July 2004. On 17 March 2004, Mr Chapman applied for a discharge pursuant to s 347 of the Crimes Act 1961. This was opposed by the Crown but it was later discovered that the videotape of the complainant's police interview had been lost. The complainant, who was 16 years old by that time, did not want to go through another trial and give evidence in person. On 15 July 2004, the Crown withdrew its opposition to the s 347 application and Mr Chapman, who had been on bail since the day before his second appeal was heard, was discharged by the District Court.

5 Mr Chapman now sues the Attorney-General under ss 25 and 27 of the Bill of Rights for $900,000 compensation for the alleged breaches of his fair trial and natural justice rights. These arose as a result of alleged breaches committed by the Deputy Registrar and the judges of this Court who were involved in determining his original ex parte appeal against conviction and the related criminal legal aid application. Dr Harrison QC, for Mr Chapman, advanced an argument that the fundamental systemic failure of criminal justice represented by the ex parte appeal process was not limited to individual members of the judiciary but that the legislature and the executive were also responsible. We will not be expressing a view on this argument. As the questions for appeal are predicated on judicial breach of the Bill of Rights, we will be answering the questions below on the basis of judicial breach only.

6 Four preliminary questions of law have been removed to this Court for determination prior to the substantive hearing of the compensation proceedings: Chapman v Attorney-General HC CHCH CIV-2006-409-1409 19 March 2008. The application for removal was on the basis that:

• (a) The questions involved considerations that had been the subject of extensive comment by this Court;

• (b) The High Court would be bound by Attorney-General v Upton (1998) 5 HRNZ 54 (CA), where an award of compensation for judicial breaches of the Bill of Rights had been upheld;

• (c) There was a prospect the questions could be heard in conjunction with another appeal involving similar issues. That in fact did occur, although the other appeal required a further half day of hearing which was not able to be scheduled until August 2009. The judgment in the other appeal is, however, being released at the same time as this judgment: McKean v Attorney-General [2009] NZCA 553.

7 The four preliminary questions (slightly reworded) are:

• (a) Does the Court have jurisdiction to hear and determine a claim for public law compensation for alleged breaches of ss 25 and 27 of the Bill of Rights occurring in the course of determining a criminal legal aid application and an appeal against conviction where a plaintiff's conviction has subsequently been quashed on appeal and a retrial ordered?

• (b) If the answer to (a) is “yes”, is public law compensation an appropriate remedy in such proceedings?

• (c) If the answer to (a) and (b) is “yes”, is the Attorney-General the proper defendant in such proceedings where the alleged breaches of the Bill of Rights were committed by a Registrar and judges of this Court when determining a criminal legal aid application and an appeal against conviction?

• (d) If the answer to (c) is “yes”, is the Attorney-General entitled to the benefit of the same immunities as the persons who committed the alleged breaches?

8 We discuss the questions under the following headings (taking the question at [7](b) last):

• (a) Is Bill of Rights compensation an available remedy?

• (b) Is the Attorney-General the proper defendant?

• (c) Does the Attorney-General have the benefit of judicial immunities?

• (d) Is Bill of Rights compensation an appropriate remedy?

Is Bill of Rights compensation an available remedy?

Crown submissions

9 Dr Collins submits that, in Mr Chapman's case, the legislation in New Zealand in force at the time of Mr Chapman's first appeal provided for an effective right of appeal. The ex parte appeals processes, including the process for dealing with legal aid, were designed solely by the then judges of this Court in contravention of the legislation then in force. In Dr Collins' submission, the responsibility for the errors in dealing with Mr Chapman's first appeal thus rested solely with the judiciary.

10 Dr Collins submits that the proper remedy for judicial error in the criminal process is judicial correction within the criminal process itself. There can be no further review by way of civil proceedings for compensation. In Dr Collins' submission, the special public policy considerations behind this approach outweigh any further relief being available, even in egregious cases.

11 In Dr Collins' submission, the cases of Simpson v Attorney-General ( Baigent's Case) [1994] 3 NZLR 667 (CA) and Auckland Unemployed Workers' Rights Centre Inc v Attorney-General [1994] 3 NZLR 720 (CA) were both cases where the Attorney-General was sued because of Bill of Rights breaches by the police, part of the executive branch of government.

12 Dr Collins submits that the statement of claim in Auckland Unemployed was a claim that focused upon police conduct, rather than judicial conduct. In Dr Collins' submission, the judgment does not stand for the proposition that the Attorney-General can be sued for Bill of Rights damages where the acts or omissions complained of are those of members of the judiciary.

13 In Dr Collins' submission, there are two competing possible ratios from Baigent's Case:

• (a) That the Crown is the “total guarantor” of Bill of Rights rights and as such is directly liable for all breaches of the Bill of Rights committed by any person or body to which s 3 of the Bill of Rights applies (the wider ratio).

• (b) Alternatively, the Crown is directly liable under s 3(a) of the Bill of Rights for breaches committed by, or at least with some involvement of, a member, servant or agent of the executive (the narrow ratio).

14 It is submitted by Dr Collins that the proper ratio of Baigent's Case is the narrow ratio, as held by Gendall J in Lory v Attorney-General [2007] NZAR 361 at [26] (HC) and by Fogarty J in McKean v Attorney-General [2007] 3 NZLR 819 at [35] (HC). The appeal from the latter decision was heard at the same time as this application: see at [6](c) above.

15 It is submitted that, with the possible exception of McKay J, all the other majority judges in Baigent's Case spoke only of the Crown's liability for executive acts. It is submitted further that...