The Attorney-General v Van Essen and Others

• Jurisdiction: New Zealand
• Judge: Stevens J
• Judgment Date: 24 February 2015
• Neutral Citation: [2015] NZCA 22
• Court: Court of Appeal
• Docket Number: CA320/2013 CA593/2013 CA594/2013
• Date: 24 February 2015

[2015] NZCA 22

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Ellen France P, Stevens and French JJ

CA320/2013

CA339/2013

CA593/2013

CA594/2013

Between

The Attorney-General

Appellant

and

Bruce Van Essen

Respondent

and

Peter Gibbons

Second Respondent

And Between

Jason Patterson

Appellant

and

The Attorney-General

First Respondent

Graham Scott

Second Respondent

And Between

Peter Gibbons

Appellant

and

Bruce Van Essen

Respondent

And Between

Graeme Scott

Appellant

and

Jason Patterson

Respondent

Counsel:

F R Sinclair, P D Marshall and I McArthur for Appellant in CA320/2013 and First Respondent in CA339/2013

A Shaw and F E Geiringer for Respondent Van Essen in CA320/2013 and for Appellant Patterson in CA339/2013, for Respondent Van Essen in CA593/2013 and Respondent Patterson in CA594/2013

D P Robinson for Respondent Gibbons in CA320/2013, for Respondent Scott in CA339/2013, for Appellant Gibbons in CA593/2013 and for Appellant Scott in CA594/2013

Appeal against the awarding by the High Court (HC) of public law damages and indemnity costs against the Attorney-General — police had executed search warrants on respondents in relation to alleged ACC benefit fraud — investigators had provided information to police on which the warrants were based and had assisted police officers at the searches of the homes at the request of the police — A-G acknowledged that the warrants had been defective and had pre-trial offered a declaration that the respondents rights under s21 New Zealand Bill of Rights Act 1990 (NZBORA) (unreasonable search and seizure) had been breached — HC awarded $10,000 public law damages to one of respondents on but held that a declaration was sufficient vindication of the other's rights — had also awarded indemnity costs in favour of investigators against A-G on basis they were statutorily indemnified — consideration of application of Taunoa v Attorney-General — whether public law damages should be awarded to incentivise the bringing of claims for breaches of NZBORA rights — whether damages were justified in this case — whether the investigators were entitled to statutory immunity against a claim for trespass and if so, under which statute — whether the investigators were entitled to costs from the plaintiffs — whether the A-G should indemnify the investigators for their costs.

Held: The focus of an inquiry into the appropriateness of an award of public law damages was on what order(s) or package of relief was necessary to provide an effective remedy for the breach of right concerned in all the circumstances in question ( Taunoa v Attorney-General). The methodology identified in Taunoa had to be applied in exercising the discretion to award damages when considering the appropriateness of compensation provided to P and V.

The long title to NZBORA, referred to affirming, protecting and promoting human rights and fundamental freedoms. In addition art 23(3) International Covenant on Civil and Political Rights 1966 required judicial authorities “to develop the possibilities of judicial remedy”. However that statement followed sub-paragraph (3)(a) of the same article, which required a State Party “to ensure that any person whose rights or freedoms … are violated shall have an effective remedy”. This was precisely what the Supreme Court sought to achieve in Taunoa and in Baigent'sCase ( Simpson v Attorney-General). The rights in the NZBORA were important and of constitutional significance. But as the award of damages was discretionary, any exercise of that discretion was to be guided by principle, specifically those laid down in Taunoa.

The HC did not find any of the police officers involved in either search were aware of any of the flaws in the applications nor were any flaws brought to their attention. The search proceeded on the basis that the warrant was indeed a regular, duly-signed document. It could not be said, therefore, the search was conducted by the police and investigators in the clear knowledge that the warrant was defective.

Further, the absence of the Registrar's signature on one of the warrants did not constitute a legal defect of such gravity or of such radical quality to render the warrant void and therefore a nullity. It was a defect of a formal, procedural quality – it was a technical error, which did not inhibit the ability of any individual to understand the warrant or its purpose. The key elements of a valid warrant were present and the meaning and purpose of the warrant were clear notwithstanding. This technical legal defect was not of a nullifying quality. In any event, s204 Summary Proceedings Act 1957 (Proceedings not to be questioned for want of form) was a complete answer to this defect. That provision cured a warrant held invalid by any reason of defect, irregularity or omission unless there had been a miscarriage of justice. The present case might have been different if the absence of a signature was noted at the time and an objection had been taken to the police continuing the search of the property, despite this fact having been drawn to their attention.

P had not shown any error of principle, or that the HC Judge was plainly wrong in his exercise of discretion. The Judge correctly acknowledged that the right concerned, to be free from unreasonable search, was significant but held in P's case a declaration was sufficient to vindicate its breach. This was confirmed by a survey of the practice of awarding public law damages in New Zealand courts. In most cases in which damages were awarded, the conduct concerned had involved physical restraint, direct infliction of physical harm, or a prolonged or significant deprivation of liberty. The seriousness of the circumstances was reflected in the quantum awarded to acknowledge the gravity of the breach in each case. Conversely there were very few cases in which public law damages had been awarded where no physical damage or interference with liberty had occurred.

Where damages had been awarded in such cases, this had typically been to reflect equivalence with tortious claims, or on the basis of clear pecuniary loss arising directly from the breach of the right itself. The largest awards to date had been justified with dual reference to tortious or common law compensatory principles. These were predominantly prior to Taunoa.

Applying the Taunoa methodology to P's case, it was necessary to emphasise the availability of a declaration proffered by the A-G prior to the trial. Although there was an accepted breach of s21 NZBORA, there was a lawful basis for the search conducted. The breach was not aggravated. Further, any systemic issues contributing to the breach were identified, examined and the subject of recommendations by the Independent Police Conduct Authority (IPCA). P would also be entitled to an award of indemnity costs for part of his costs of bringing the proceeding. In these circumstances, a declaration was the appropriate remedy.

P's cross-appeal was dismissed.

In respect of V's damages award, the HC was not correct to treat the alleged unveiling of intimate material to have been a factor elevating the gravity of the breach of s21 NZBORA. No evidence was provided suggesting the police or the private investigators knew, at the time of the search, that intimate material was potentially contained on the USB drives. It was a persistent matter of unresolved dispute how many USB drives were uplifted by the police. In any event, two were returned, and an offer of recompense made.

V had not raised concern about the intimate material until he filed a late affidavit prior to hearing. There was insufficient evidence to support any finding an “unveiling” of intimate material. Even if such material existed, there was no evidence any police officer or assisting IT specialist actually located or saw it. It could not, after the fact, increase the gravity and seriousness of the initial breach of rights. It could not properly be an aggravating factor justifying the award of public law damages.

The conflict arising out of the relationship between G and the police constable brought into focus the significance in public law terms of internal administrative measures to investigate and rectify problems – in this case, the internal review mechanisms and IPCA procedure. All of V's complaints were investigated and acted upon, with follow-up action recommended. The response was tailored to the situation experienced by V, addressed his concerns specifically, and sought to rectify in a tangible, meaningful way the aspects of police governance allowing them to occur.

The HC correctly concluded that the relationship between G and the constable created “the odour of improper influence and the potential for abuse of police powers for personal benefit” which was a “matter of significant public concern”.. However, the correct focus was on the breach of V's rights and the appropriate vindication. The internal police investigation and the IPCA report (and the police response it engendered) should have been regarded as substantially vindicating V's breach of s21, implementing steps to prevent it happening again, and substantively achieving the relevant public law response required. It followed that the relationship could not be said to have given rise to a seriously aggravating factor.

There was no doubt the preparation of the search warrant applications involved careless work and lack of attention to detail on the part of the constable involved. Moreover, the known conflict was not managed as it should have been. Nonetheless, an effective remedial package in the circumstances of this case did not require an award of public law damages.

Appeal by the A-G allowed. Cross-appeal by V dismissed

Section 38 and s39 PA did not provide G and S with a statutory immunity. Their protection lay in s27 Crimes Act 1961 (Execution of...