CAIE V THE ATTORNEY-GENERAL OF NZ CA CA108/01

CAIE V THE ATTORNEY-GENERAL OF NZ CA CA108/01 22 December 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA108/01BETWEEN ALWYN KEITH CAIE Appellant AND THE ATTORNEY-GENERAL OF NEW ZEALAND (SUED IN AND ON BEHALF OF THE NEW ZEALAND POLICE DEPARTMENT) Respondent Hearing: 17 November 2005 Court: Chambers, Goddard and Rodney Hansen JJ Counsel: Appellant in Person A R Burns for Respondent Judgment: 22 December 2005JUDGMENT OF THE COURT A The appeal is dismissed. B The appellant must pay to the respondent costs of $4,000 plus usual disbursements. REASONS(Given by Chambers J)The victor appeals[1] Keith Caie had a victory in the High Court in April 2001. After a 12 day hearing in November and December 2000, Fisher J found that the police had detained him without lawful justification and had thereby committed the tort of false imprisonment. Fisher J awarded Mr Caie damages of $10,000 plus costs. [2] The police, who lost, do not appeal. But Mr Caie, who won, does. But it is a most unusual appeal. Mr Caie is not interested in the level of damages and having that increased. What he wants is a rehearing! He wants to go through the whole trial again, with a view to exposing, he says, the perjury committed by many police officers at the 2000 trial. As well, he wants to explore all the things his counsel at trial did wrong and to have properly investigated what has become, he says, a grand conspiracy. The minor incident which sparked this litigation, the killing of one of Mr Caie's pigs, has spawned a conspiracy, Mr Caie says, involving numerous members of the police, the legal profession (including his own former counsel), and the judiciary. Mr Caie's attitude is perhaps summed up by the cover of his 600 page submission to this court. The cover depicts the High Court at Auckland with a posse of cowboys on horseback outside. The heading is:Blue Filth and CorruptionThey must be stopped Keith Caie[3] Unfortunately, Mr Caie, who, having fallen out with his lawyer at trial, now appears for himself, has entirely misunderstood the nature of the civil appellate process and also misunderstands the powers of this court. Even if we thought it appropriate, this court has no jurisdiction to order the sort of wide-ranging inquiry into perjury and corruption that Mr Caie seeks. His entire appeal has miscued. In truth, the appeal raises scarcely any justiciable issues.What this appeal is and is not about[4] Mr Caie in the High Court advanced five causes of action against the police. One (abuse of office) was formally abandoned prior to trial; another (the tort of misfeasance in a public office) was formally abandoned during the trial. They, of course, cannot be resurrected on appeal, having been formally abandoned - not that Mr Caie's submissions in any way were tied to any particular cause of action. [5] That left three causes of action for consideration at the end of the High Court trial: the tort of false imprisonment; the tort of malicious prosecution; and the claim for breach of the New Zealand Bill of Rights Act 1990. Fisher J recorded that counsel agreed that the last claim "added nothing of real significance": Caie v The Attorney-General of New Zealand HC AK CP334-SD99 6 April 2001 at [54]. (An extract from Fisher J's judgment is reported at [2005] NZAR 703.) Fisher J did however consider the alleged breaches of the Bill of Rights when considering the appropriate damages for false imprisonment. [6] So far as false imprisonment is concerned, Mr Caie had pleaded that commenced with his unlawful arrest at about 7.40 pm on 6 October 1998 and continued until mid-afternoon the following day when a District Court judge remanded him in custody. The period of wrongful detainment was therefore about 20 hours: at [82]. The judge upheld Mr Caie's claim as pleaded, both as to when the wrongful detention began and as to when it ended. So far as this cause of action is concerned, therefore, there is nothing Mr Caie can appeal. He got the finding he wanted, namely that he was falsely imprisoned for about 20 hours. It may be that Mr Caie does not like all of Fisher J's reasoning or his findings of fact and his findings as to credibility of witnesses, but the successful party cannot appeal the reasoning which led to the success: Amalgamated Builders Limited v Nile Holdings Limited (2000) 14 PRNZ 652 (CA). The only thing that could be appealed on this cause of action is the quantum of damages. But Mr Caie told us he was not interested in that sort of challenge. [7] So that leaves the tort of malicious prosecution, on which Mr Caie lost. Mr Caie lost on that cause of action because he failed to establish, Fisher J found,two of the five elements of the tort. Fisher J's findings on those matters could be appealed, as they were findings against Mr Caie which led to his failure on this cause of action. Although Mr Caie's submissions lacked any sort of proper legal or appellate focus, we shall treat it as a challenge to these findings of Fisher J. These findings are the only findings Fisher J made open to challenge by Mr Caie.Malicious prosecution[8] There was no dispute at trial about what a plaintiff has to prove in an action for malicious prosecution. The elements are set out in this court's decision in Van Heeren v Cooper [1999] 1 NZLR 731 at 737. The five elements to be proved are as Fisher J said (at [123]):(1) That the defendant prosecuted the plaintiff on a criminal charge. (2) That the criminal proceedings terminated in the plaintiff's favour. (3) That the defendant had no reasonable and probable cause for bringing the proceedings. (4) That the defendant acted maliciously. (5) That the plaintiff suffered damage as a consequence of the proceedings.[9] There was no dispute in this case that the police had prosecuted Mr Caie on a criminal charge, that those proceedings had terminated in Mr Caie's favour, and that he had suffered damage as a consequence of the criminal proceedings. It was elements (3) and (4) which were in contention. [10] The charge which Mr Caie faced was a charge under s 45(1)(a) of the Arms Act 1983. Section 45(1) reads as follows:Every person commits an offence and is liableto imprisonmentwho, except for some lawful, proper, and sufficient purpose, - (a) carries; or (b) is in possession of – any firearm[11] Section 45(2) provides that the burden of proving the existence of some lawful, proper, and sufficient purpose lies on the defendant. The history of what led to the laying of this charge on 6 October 1998 is fully set out in Fisher J's judgment. It is not necessary to repeat that here because it is not relevant to the issues we face on this appeal. [12] Fisher J found that the police had good cause to suspect that a breach of s 45(1)(a) of the Arms Act had been committed and that they were therefore justified in arresting Mr Caie under s 315(2)(b) of the Crimes Act 1961: at [101]. His Honour also considered that the arrest could have been justified under s 315(2)(a) of the Crimes Act: at [102]. The only reason the arrest was unlawful was that the police failed to give Mr Caie adequate reasons for his arrest at the time. That was a breach of s 316(1) of the Crimes Act and s 23(1)(a) of the Bill of Rights. It was that failure – and that failure alone – which led to Mr Caie's success on his false imprisonment cause of action. [13] The precise charge which Mr Caie was to face was not determined until about three hours after his arrest. Fisher J considered that, just as there was good cause to suspect at the time of arrest, so the police had reasonable grounds for believing that Mr Caie was guilty of the Arms Act offence. His Honour said at [125]:Nor have I any reason for doubting the actual belief of the officers in that respect. My conclusion is that there was reasonable and probable cause for the prosecution and that an essential element in a malicious prosecution case was therefore lacking.[14] There was ample evidence to support Fisher J's findings. Mr Caie challenged those findings, but in so doing he failed to understand the nature of the appellate process. Tipping J in Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190 at 198 (CA) said:Appellants often wish to treat appeals as retrials on matters of fact. Counsel must, of course, be faithful to their instructions, but they have a duty to make it plain to their clients that the ambit of an appeal on fact is very narrow. Any tendency or wish to engage in a general factual retrial must be firmly resisted. This Court will not reverse a factual finding unless compelling grounds are shown for doing so.[15] Thomas J made similar observations at 198:I have perused the judgment in draft of Tipping J and am pleased to fully concur in it. My reason for writing a short separate judgment is to indicate my support for the learned Judge's observations at the close of his judgment relating to the growing tendency to treat appeals as "retrials" on matters of fact. I greatly welcome his timely comments. The principle than an appellate Court will only interfere with the trial Judge's findings of fact in exceptional circumstances is so well established it does not require the citation of authority. For present purposes Vicount Haldane LC's dictum will suffice. In Nocton v Lord Ashburton[1914] AC 932 at 957, the learned Law Lord said: "it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness."[16] Rae was recently referred to with approval by the Supreme Court in Urbani v Gillions & Sons Limited (2004) 17 PRNZ 112 at [3]. [17] Those remarks are very apposite in the present case. The judge heard evidence from Mr Caie, his wife Carole, Paul Doughty (a neighbour), Constable Paul Borrell, and Senior Sergeant Montgomery, the key witnesses as to what happened in the afternoon and evening of 6 October 1998. The judge explained in detail the evidence he accepted and rejected, and the reasons why he made his credibility findings. While Mr Caie considers that all the police involved in this case (except one constable) were "blatant liars", that is not the conclusion His Honour reached. Fisher J's conclusion on this point was clearly open to him on the evidence. Mr Caie's detailed submissions do not cause us to consider there was any error in the trial judge's assessment of the evidence and in his findings as to credibility. Indeed, the format of Mr Caie's nine page points on appeal and more particularly the format of Mr Caie's written submissions, including the extreme allegations contained in both, cause us to conclude that the judge's findings as to Mr Caie's credibility at [55]-[74], supported by the evidence from Dr Skipworth and Mrs White, were amply justified. [18] Mr Caie referred us to a mass of material which had not been before the trial judge. He made no application, however, under r 24 of the Court of Appeal (Civil) Rules 1997, or its current equivalent, r 45 of the Court of Appeal (Civil) Rules 2005, for leave to adduce further evidence. Even had he done so, however, it would nothave met the well established test for further evidence: Rae at 192. The mass of new material was completely irrelevant to what could be in issue on this appeal. Mr Caie did not realise that, because, as we have said, the entire way in which he approached this appeal was astray. [19] Since no grounds, let alone compelling grounds, have been shown for reversing Fisher J's factual finding that the police had reasonable and probable cause for bringing the proceedings, that disposes of any challenge to the malicious prosecution cause of action. It was essential to that cause of action that Mr Caie should prove that the police had no reasonable and probable cause for bringing the prosecution. He did not prove that, so Fisher J found. Mr Caie has not satisfied us that this is one of the exceptional cases in which we should differ from the finding of fact of the judge who tried the case. In those circumstances, we cannot conclude that the judge's finding on the malicious prosecution cause of action was wrong.Result[20] In summary, therefore, Mr Caie cannot challenge the judge's decision on the false imprisonment cause of action, because it was in Mr Caie's favour. The only matter Mr Caie could challenge on that cause of action was quantum of damages, a point which did not feature in Mr Caie's voluminous points on appeal. In any event, had Mr Caie challenged the award, he would have failed. An award of $10,000 was, in the circumstances, perfectly fair, given that the period of unlawful detention was less than a day and given that there were in fact grounds for the arrest. [21] So far as malicious prosecution is concerned, Mr Caie failed to prove the third and fourth elements of that count. Mr Caie has not shown that the judge's conclusion on the third element was wrong. We have found it unnecessary to discuss the fourth.[22] It follows that the appeal must fail. Mr Caie should pay costs on the normal basis for a half day appeal.Solicitors: Crown Law Office, Wellington, for Respondent