DELIU v NEW ZEALAND POLICE [2020] NZHC 2506

DELIU v NEW ZEALAND POLICE [2020] NZHC 2506 [24 September 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2016-404-2150[2020] NZHC 2506BETWEEN FRANCISC CATALIN DELIUPlaintiffAND NEW ZEALAND POLICEDefendantHearing: 9-13 December 2019Appearances: Mr F C Deliu in Person (via AVL)N Flanagan for the DefendantJudgment: 24 September 2020JUDGMENT OF DUFFY JThis judgment was delivered by me on 24 September 2020 at 2.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitorsMeredith Connell, Auckland[1] In 2016 the New Zealand Police were investigating a complaint by a memberof the public concerning the fraudulent sale of properties that this member of the publichad jointly owned with his former wife. Legal documents transferring his ownershipin those properties were purportedly executed by him in New Zealand at a time whenhe was outside New Zealand.1 Where necessary, the documents to effect thosetransfers were witnessed and certified as correct by a lawyer, Ms S, who was employedby a law firm known as Amicus Law.2[2] Police officers conducting this investigation wanted to interview Ms S toestablish her role in the fraudulent conveyances and to gather any potential evidencefor a criminal prosecution. On various occasions they sought to interview her. At thistime the plaintiff, Francis Deliu, was a barrister practising in New Zealand and Ms Sengaged him to act on her behalf. He advised the Police officers that Ms S wasexercising her right to silence under the New Zealand Bill of Rights Act 1990(NZBORA) and requested them to direct all communications relevant to theinvestigation to him.[3] Detective Gillian Holland obtained a search warrant under the Search andSurveillance Act 2012 (SSA) to search the workplace of Ms S for the purpose ofseizing specified conveyancing documents and associated material relevant to thetransfers of the subject properties. A warrant for that purpose was granted by theDistrict Court,3 and on 31 August 2016 Detective Holland, and other officers underthe command of Detective Senior Sergeant Iain Chapman went to Amicus Law toexecute the warrant.[4] Amicus Law was located on level 7 at 175 Queen Street in the AucklandCentral Business District (level 7). The principal of this law firm was Richard Zhao.The owner of level 7 was a registered company, City Q 17507 Limited, of which1 His absence from New Zealand at the material times was confirmed by records held byImmigration New Zealand.2 See s 33 of the Land Transfer Act 2017 which provides for electronic transfers of land and requiresthe transferor and transferee to execute the relevant conveyancing documents in front of a lawyerand to provide that lawyer with proof of identity. In this case a copy of the transferor's passportwas provided to Land Information New Zealand as proof of his identity when on the date he wassupposed to be in the office of Ms S he and his passport were in a foreign country.3 The search warrant was issued by the Auckland District Court on 24 August 2016.Mr Deliu was one of two directors4 and his barrister's chambers, known as JustitiaLaw, were also located on level 7.5[5] On the day of the Police search Mr Deliu and Mr Zhao arrived at level 7 whenthe search was in progress. By then staff at Amicus Law had already telephoned themto inform them of what was happening. Ms S was not at work that day. Mr Deliu hadtried to contact her, but was unsuccessful. When he approached the Police officers heconsidered he had no instructions to represent Ms S in relation to the execution of thesearch warrant. For various reasons he was concerned about the Police presence andthe search that was taking place.[6] What subsequently transpired has led to Mr Deliu commencing this proceedingagainst the defendant, the New Zealand Police.6 Mr Deliu brings three claims: that hewas the subject of arbitrary detention contrary to s 22 of the NZBORA; that he wasfalsely imprisoned contrary to the tort of false imprisonment; and that he was thesubject of misfeasance in public office. These allegations are denied by the defendant.[7] The proceeding raises multiple issues some substantial and some procedural.I propose to deal with the substantial issues first; this is because the response to anyprocedural defects that may exist will be influenced by the interests of justice, and toknow where those interests lie requires me to first have formed a view on thesubstantial issues.Facts[8] Mr Deliu, who represented himself, gave evidence and produced a videorecording, which he had made at the time, of his encounter with the Police officersconducting the search. Three of those officers, Detective Senior Sergeant Chapman,4 The directors were Mr Deliu and Catherine Zhao5 Justitia Law was the trading name of Justitia Chambers Limited of which Mr Deliu was the soledirector.6 Section 7 of the Policing Act 2008 provides statutory recognition of the New Zealand Police anddefines it as an instrument of the Crown. Accordingly, it is within the scope of s 3 of the NewZealand Bill of Rights Act 1990, which applies the Act to the branches of the New ZealandGovernment. It also falls under s 3(b) as a body in the performance of a public function, power orduty conferred or imposed on that body pursuant to law.Detective Sergeant Corner and Detective Holland, gave evidence.7 Another Policeofficer who was present at the search had also video recorded the exchange withMr Deliu. Three video-recordings were admitted into evidence by consent. It ishelpful to assess the evidence in a chronological order starting with the Police attemptsto interview Ms S.Prelude to the search of level 7[9] Detective Senior Sergeant Chapman explained in evidence that the Policewanted to interview Ms S because they were unsure as to whether she was duped intobelieving the person whose signatures she witnessed was the true registered jointowner or whether Ms S was complicit in the fraudulent transfer of the subjectproperties. She was seen as either a witness or a potential suspect. Detective SeniorSergeant Chapman was also unsure about whether others in the law firm were potentialsuspects. As he put it, it was either "a couple of bad actors" or "lawyers indeed fallingvictim to an impersonator". His evidence in this regard is consistent with that ofDetective Holland and there was no challenge to it.[10] It is apparent from the communications between Detective Holland, who wasthe officer primarily emailing Mr Deliu before the search, that she was frustrated byMs S exercising her right to silence and requiring Police enquiries to be directedthrough Mr Deliu. When she had contacted Mr Zhao seeking information his responsewas that he wanted to seek legal advice, and matters went no further with Mr Zhao.The impression I gained from Detective Holland's evidence was that she believed shewas not receiving the degree of co-operation she would expect from a lawyer who wasan innocent participant in a conveyance where someone else had seemingly executedlegal documents purporting to be one of the joint owners of properties. DetectiveHolland would have been aware of the relevant conveyancing documents, includingthose witnessed by Ms S, which were electronically filed with Land Information NewZealand (LINZ) as the Police wanted to obtain the originals of those documents, whichthey expected to find in the file/s held by Ms S.87 By the trial date two of the Police officers had been promoted to higher ranks and one had retired.I propose to refer to them according to the ranks they held at the time of the search.8 Generally original documents are preferred for evidential purposes in any criminal prosecution.[11] The obstacles to interviewing Ms S required the Police officers to consideralternatives for gathering information to advance their investigation. One suchalternative was a search warrant. Detective Senior Sergeant Chapman was variouslyasked why the Police did not use other alternatives, including the production orderprocess, to obtain the documents they sought. My understanding of his explanation istwofold. First, the production order process required a degree of co-operation fromthe recipient of the order and to date that had not been demonstrated by Ms S, whowould have been the natural recipient of any order. Second, the Police were unsure asto whether Ms S and other persons at Amicus Law were complicit in the fraudulentconveyances and their view was that it would not be good practice to serve aproduction order on a potential offender.[12] Detective Senior Sergeant Chapman was also questioned about whether anythought was given to contacting Mr Zhao as the principal of Amicus Law before thesearch and advising him that Police wanted to execute a search so that arrangementscould be made in advance for the protection of legally privileged material. DetectiveSenior Sergeant Chapman said this was considered, but again noted that when thePolice wanted to interview Ms S there had been no co-operation and in that regardthey had become concerned:We were left with either we play our hand, and risk losing everything, or asearch warrant. That's really what it came down to.Detective Senior Sergeant Chapman admitted that the suspicions the Police had aboutMs S also left them in a position where they did not know how far up the chain ofauthority any suspicion should go.[13] The Police elected the option of a search warrant. This warrant was obtainedon 24 August 2016 and was not executed until 31 August 2016, seven days later.Evidence to show the attempts the Police officers made to prepare for the execution ofthe search warrant is hazy. Nothing is recorded in file notes or job sheets by any ofthe relevant Police officers. This is of particular relevance as the search, being a searchof a law firm, engaged s 143 of the SSA which provides that no search warrant maybe executed unless the lawyer or a representative of the lawyer is present. Whereneither of these circumstances can be met the New Zealand Law Society is to becontacted to provide a representative.[14] There was evidence from Senior Sergeant Corner that during the search on 31August 2016, but after the incident that has led to these proceedings, she had aninteraction with Mr Deliu where he gave her a copy of s 143 of the SSA and told herhe would be going to the High Court to seek an injunction to stop the search. Thiscaused Detective Corner to contact the New Zealand Law Society (NZLS) to see if itcould appoint a representative,9 but the NZLS would not get involved.[15] Detective Holland gave evidence from memory, to this effect. She said that shehad telephoned the NZLS a "couple of days before" the search requesting someonefrom the NZLS accompany Police, but that the NZLS had refused to become involved.She could not give a name for the person she had spoken to but from memory sherecalled it was someone relatively senior. There is no evidence of Detective Hollandreferring the NZLS's refusal to assist to her superior officers in the investigation teamor elsewhere such as the Police in-house legal counsel. Seemingly other than thistelephone conversation, nothing was done by her to ensure the NZLS wouldparticipate in the role provided for it by s 143.[16] Because nothing was documented Detective Senior Sergeant Chapman said inevidence that he could not be sure as to whether the NZLS had indeed been approachedbefore the search warrant was executed.[17] It was also the first search of legal offices that Detective Senior SergeantChapman had undertaken under the SSA, and he was aware he was facing acomplicated situation that was different from the usual search of a law office:10Q. So in a sense you were seeing this as a different scenario from, say,the scenario where a lawyer's client is a person of interest and youwant to look at the law firm to look at the files, but you don't have anysuspicions about the law firm. Here, in a sense, your suspicions wereone, about an employee, a solicitor employee of the law firm. You9 Under s 143 of the SSA the New Zealand Law Society has a specific statutory role to play in termsof appointing a representative to be present at a Police search of legal offices to ensure legalprivilege is protected.10 This understanding is also recorded in a written statement Detective Senior Sergeant Chapmanmade on 2 September 2016.didn't know how far up the chain of authority any suspicion shouldgo –A. That is absolutely correct.Q Right, so really, you really, to be safe, you needed someone from theNew Zealand Law Society or someone appointed by the New ZealandLaw Society to be there. In a sense, you would then have had a safeperson in terms of section 143, and a neutral person in terms ofsection 143.A. Yes, and I absolutely acknowledge that point, and in hindsight, giventhe interaction that we had on that day, we would have, given the giftof hindsight. I haven't got it documented, so I'm a little bit cautiousto say that I was already aware that the Law Society were very hesitantto assist us with a search of those chambers, and in fact that wasproven later on that day when we specifically asked them and theysaid no. So we really were in a hard place, and there was no easyoption, so it was a case of let's pursue it eyes wide open. The momentit became – my view in my briefing to my team was the moment thisbecame complicated with regards to a specific privilege argument,that we would stop, pause and back out, and I think you'll hopefullysee throughout that day, Ma'am, and Mr Deliu, that we stopped andpaused a number of times, and ultimately said stop entirely, removeourselves, this needs to be tested at a higher level.Finding[18] In short, the available Police evidence suggests there was poor planning andpreparation for what was acknowledged to be a unique and difficult search. DetectiveHolland was the person directly responsible for obtaining the search warrant and so itcan be expected it would fall to her to contact the NZLS regarding a representative. Ihave no reason to doubt her evidence that she approached the NZLS before the search.However, the lack of any contemporary record in this regard or note of the NZLS'srefusal to participate suggests to me that Detective Holland did not give this matter theattention it required, which also suggests that she perhaps failed to realise howimportant it was for a neutral legal representative to be present during the search toattend to any potential privilege claims.[19] The lack of attention given to this aspect of the search (which is evident fromthe lack of contemporary records on the topic) also reflects poorly on the seniorpersonnel involved. They should have realised there would be problems attemptingto search a legal office where certain lawyers had already exercised their legal rightsnot to engage with the Police.[20] Detective Senior Sergeant Chapman said in evidence he had planned to arriveunannounced and he expected Ms S would be at Amicus Law. Had she been presentshe could have assumed the representative's role in s 143 when it came to legalprivilege relevant to client files. The chosen approach of Detective Senior SergeantChapman arriving at Amicus Law at 9 am suggests he thought the element of surprisemight work in the Police's favour:It was our intention that either Zhao or [Ms S] would be present.[21] However, even if Ms S had been present, once she was given her NZBORArights, as per his usual practice,11 had she then exercised those rights and refused toco-operate, the Police would have then been faced with either searching the officewithout a lawyer as representative of the clients of Amicus Law to protect their legalprivilege or suspending the search. Further, given the stance she had taken up to thattime, that all Police enquires were to be directed to Mr Deliu, her continuing this stanceon the day of the search would have precluded her from being a representative for thepurpose of s 143. This was a legitimate stance for her to take. The Police should haverecognised it might be maintained and planned for that possibility.[22] Whilst other lawyers were present on level 7 on the day of the search, oncethey were given their NZBORA rights it would have been open to them to exercisethose rights, and therefore remain silent. Even if they were not given their NZBORArights they could simply have refused to co-operate on the basis they had noinstructions to represent those in whom the privilege claims vested.[23] At the very least the Police needed a back-up plan. The NZLS was the bestsource of a representative to participate in a s 143 search and some advancepreparation was required to ensure the NZLS would participate in this way. Thestatutory purpose in s 143 of calling on the assistance of the NZLS is for thoseoccasions when, for whatever reasons, the lawyers directly involved are eitherreluctant or refuse to assist in a search that may encounter legally privileged material.Had the situation been clearly explained to the NZLS by written request addressed to11 Detective Senior Sergeant Chapman said it was his practice to give everyone present at a searchscene their rights and in this case he did so for Mr Wu and Mr Deliu. The evidence is silent onwhether he did so for Mr Zhao or Mr Zhang.senior personnel it is difficult to see how the NZLS could have refused to perform arole that Parliament has chosen to give it.[24] My observations on the attitude of the NZLS and its lack of involvement in thesearch are based solely on the evidence provided by the Police officers. No evidencewas called from the NZLS, and so its explanation for not being involved in the 31August 2016 search is not available to me.[25] In sum, there was no arrangement for the NZLS to provide a representative tobe present for the search. There was also no coherent plan as to who would fulfil therole of representative, with the Police seemingly of the view that either Ms S or anothermember of Amicus law would be available to do so.The search[26] On the day the search was executed the Police officers arrived at Amicus Lawat around 9am. The search proceeded in stops and starts and can be divided into fourparts. Of the team involved Detective Senior Sergeant Chapman, Detective SeniorSergeant Corner and Detective Holland gave evidence.Part one[27] When the Police officers arrived no-one who was relevant to the search waspresent. They spoke with the office manager and receptionist, who telephoned Ms Sand Mr Zhao without success. They were advised that Orson Wu, who was a legalexecutive working with Ms S, would be arriving in about 30 minute's time. The Policeofficers left and waited in a coffee shop.Part two[28] The Police officers returned to level 7 at about 9.48 am and found Mr Wu there.All concerned moved from the reception area into an adjacent conference room.[29] Detective Holland introduced and identified herself to Mr Wu, read him hisNZBORA rights and gave him a copy of the search warrant. Enquiries were made ofMr Wu by Detective Senior Sergeant Chapman who learned that Mr Wu was a legalexecutive who worked with Ms S, and he was someone who was able to locate theconveyancing file with the documents that were specified in the search warrant.Detective Senior Sergeant Chapman concluded that Mr Wu was an appropriate personto fulfil the role of a representative for the purposes of s 143 of the SSA.12Q. You thought it was fine that you would be the one to decide who wasthe representative?A. Yes.Detective Senior Sergeant Chapman explained to Mr Wu that as the representative ofMs S, he had the right to exercise privilege claims on any items seized. The executionof the search warrant commenced.[30] It is appropriate here, before proceeding further, to identify the terms of thesearch warrant. The search warrant authorised the search of "a place situated at Level7, 175 Queen Street, Auckland Central". The exact parameters of this "place" werenot identified, which in principle would have allowed for areas of level 7 beyondAmicus Law to be searched. The warrant identified certain specified evidentialmaterial relevant to the offence of using a forged document13 and authorised its searchand seizure. This material was:(a) client file in the name of [HSS] and [YS] for the sale of the property at[Victoria Street, Auckland];(b) original of the private individual client authority (PICA) and instructionfor an electronic transaction for the property at [Victoria StreetAuckland] dated 3 March 2016 and attached copy of identificationdocuments used;1412 See [96] – [112] herein for explanation of the requirements of s 143 and its application to thecircumstances of this search.13 Crimes Act 1961, s 257(1)(b).14 Part of this process involves the authorising lawyer being provided with proof of the identity ofthe transferor/transferee in the form of a passport or similar document that can visually identify aperson.(c) original of the PICA and instructions for an electronic transaction forthe property at [Eden Crescent, Auckland] dated 27 April 2016 andattached copy of identification documents used;(d) trust ledger accounts to which the proceeds of the sales of the propertiesat [Victoria Street, Auckland] and [Eden Crescent, Auckland] werecredited;(e) documentation supporting the entries on those trust ledger accountsincluding and not limited to trust account receipts, settlementstatements, paid cheques and client authorities for disbursements andbank statements in relation to properties at [Victoria Street, Auckland]and [Eden Crescent, Auckland];(f) client file in relation to the transfer of title of [Eden Crescent, Auckland]from [YS] and [HSS] on 11 April 2016 to [YS];(g) client file in the name of [HSS] and [YS] for the sale of the property at[Eden Crescent, Auckland]; and(h) documentation in relation to the discharge of the mortgage as advisedby [ELJK] to LINZ on 11 April 2016 including any trust accountrecords relating to receipt of funds and their disbursement.[31] The warrant enabled authorised Police officers to enter and search the specifiedplace for the specified evidential material and to seize any of the specified evidentialmaterial or anything else found in the course of carrying out the search or as a resultof observations at the specified place if they had reasonable grounds to believe theycould have seized the item or items under any search warrant that they could haveobtained or any other search power that they could have exercised.[32] The usual powers that attach to search warrants were included and in particularthey were authorised to: use any assistance that is reasonable in the circumstances; useforce in respect of any property that is reasonable in the circumstances; enter or breakopen or access any area within the specified place for the purposes of carrying out thesearch and any lawful seizure; detain any person at the place for the purposes ofdetermining whether there is any connection between that person and the object of thesearch if that person is at the place at the commencement of the search or arrives atthe place while the search is being carried out; and search any person who was foundat the place or who arrived at the place if there were reasonable grounds to believe thatthe specified evidential material was on that person.[33] Mr Wu took the Police officers to Ms S's workstation, which Detective Hollandlater in her brief of evidence said was "located directly outside Mr Deliu's office".Detective Holland said they quickly realised that without Mr Wu's help they faced adifficult task identifying the documents specified in the search warrant. Then theymoved to another office, which was glass fronted with the words Justitia engraved onthe glass front. This was an open plan office with desks in it. In her written statement,prepared shortly after the search, Detective Holland recorded that the paper work andfiles located in this office did not appear to be in order, were either loose leaf or infolders around the desk and shelving. Mr Wu went through the files in this room andon the desk of a lawyer, a Mr Koo. Several relevant documents were located byMr Wu, which he handed to Detective Holland. Detective Senior Sergeant Chapmanwas satisfied that because Mr Wu had an opportunity to look at those conveyancingdocuments as he was locating them this meant he had sufficient opportunity toconsider if any of the documents were legally privileged or not:Q. And did you give any thought to whether, before you took documents andput them in envelopes, you should first of all let a lawyer or arepresentative of Ms [S] look at those documents?A. Yes, and Mr Wu did, Orison Wu did. He looked at them all. Weconfirmed that they were the conveyancing documents, and in my mind,we had satisfied the representation aspect of 143 by having Mr Wu as Ms[S's] legal exec, providing those to us. So yes, I think we had fulfilledthat, Ma'am.[34] The search was interrupted when a barrister working from Justitia Chambers(Daniel Zhang) approached and demanded to know what was happening. He spokewith Mr Wu and looked at the warrant. He left and later returned with a telephoneadvising Detective Senior Sergeant Chapman that Mr Zhao was on the line. The twospoke and then Detective Senior Sergeant Chapman suspended the search untilMr Zhao arrived.Part three[35] The Police officers returned to the conference room to wait for Mr Zhao toarrive. The documents that Mr Wu had already handed to them were placed inenvelopes and then in a brown cardboard box (the exhibits box). After about 30minutes had passed Mr Zhao and Mr Deliu arrived at the same time.[36] Before addressing what occurred when Mr Deliu arrived, it is helpful first todescribe the layout of level 7, which the Police officers were viewing for the first time.[37] There appeared to have been a common reception area and shared conferencerooms. Despite Ms S being employed by Amicus Law the material Mr Wu obtainedfor the Police officers was located in an open plan office associated with JustitiaChambers, the glass walls of which were engraved with the words Justitia.15 There isevidence from Detective Holland that Mr Deliu's office was immediately beside thatof Ms S.[38] Detective Senior Sergeant Chapman had the impression that there was cross-over between Amicus Law and Justitia Chambers. This led him to conclude there weretwo interconnected law firms operating on level 7. Detective Holland said in evidence: there was a lot of movement between, there was Amicus Law lawyersworking in offices that had Justitia Chambers on them, so it was all muddledup so you couldn't distinguish between what firm was what, because it alllooked like they were working together.[39] The way Amicus Law and Justitia Chambers occupied level 7 would also haveincreased the concern of the lawyers working there when it came to the Policeattempting to locate specific material in the search warrant. If there was no cleardelineation between offices used by employees of Amicus Law and those used by staffand barristers working in Justitia Chambers there would have been a greater risk of15 This may have been because by then the conveyancing exercise for the subsequent properties wascompleted and Ms S had briefed Mr Deliu to act for her in the matter of the Police investigationinto the transfer of those properties.the Police officers inadvertently coming into contact with legally privileged materialof clients of Justitia Chambers as well as Amicus Law. The close proximity ofMr Deliu's office to that of Ms S would have compounded this concern. Moreover,Mr Deliu gave evidence that he was often briefed by either Ms S or Mr Zhao, whichmeant that persons he viewed as his clients were also clients of Amicus Law. Inaddition, because Ms S had briefed Mr Deliu for the purpose of the Policeinvestigation, material relevant to the conveyancing transactions may have found itsway on to files held by Mr Deliu.[40] Accordingly, while the layout on level 7 led to the Police officers viewing allon the floor with some suspicion, the layout would also have compounded the typicalconcerns lawyers have about protection of legally privileged material.[41] Mr Deliu said he first learned of the Police presence at level 7 when telephonedat around 10.30am by Mr Zhao. Mr Deliu arrived at the scene around 11am at thesame time as Mr Zhao. At this time Mr Deliu had made no contact with Ms S andconsidered he had no instructions from her relevant to the search warrant.[42] Mr Deliu said that when he arrived the search was in full motion in a numberof offices in various areas of level 7. No representative of the NZLS was present.[43] Mr Deliu saw Police officers in a conference room next to the reception areaswith a brown box on a desk, which he believed contained seized material. He wantedto know if the material in the box related to his legal practice, to himself personally orany other matters. He entered the conference room and advised those present that hewas the owner of level 7 and counsel acting, although he did not say for whom. Hethen asked Detective Holland what had been seized thus far. At that point DetectiveSenior Sergeant Chapman intervened.[44] Mr Deliu said he did not want to engage with Detective Senior SergeantChapman and this was made clear from the start. For this reason Mr Deliu addressedhis enquires to Detective Holland and essentially ignored Detective Senior SergeantChapman.[45] From the perspective of Detective Senior Sergeant Chapman he did not wantMr Deliu intruding on the search and attempting to take control of the situation. Inparticular Detective Senior Sergeant Chapman was concerned about Mr Deliutouching the seized items in the exhibits box and he would not tolerate that. He wasprepared to explain what was happening to Mr Deliu, but the lack of co-operationbeing shown in response prevented both of them engaging in a civil manner. Whatoccurred next was video-recorded by both Mr Deliu and a Police officer. The first partof the exchange between Mr Deliu and the Police officers was as follows:A. I'm Frank Deliu, I'm the owner of this floor and counsel acting so I'mgoing to record this okay.Q. Nice.A. Thanks.Q. I'm Iain Chapman.A. Good to meet you Iain.Q. Peter (inaudible 10:56:59).A. Hello Peter.Q. Gill Holland.A. Hi Gill, good to meet you. So is that stuff taken from this office.Q. Well shall we have a chat and I'll explain everything to you.A. I understand the basics, can you just answer my question, is that stufftaken from this office or not.Q. These three envelopes so far.A. Okay, can I just record them please, excuse me, I'm not pushingyou're in my way.Q. (inaudible 10:57:18).A. Okay then move or just get out of the way, and what's in there, what'sin there please?Q. Sorry, I spoke to, was it you I spoke to?A. I'm the owner of this floor and I'm his lawyer, what's in the envelopesplease.Q. Can you detail (inaudible 10:57:34).A. Thank you.Q. Before we go any further –A. Okay, I'll just ask my questions, I (inaudible 10:57:40).Q. My name is Detective Sergeant –A. I don't care, you've told me your name, I don't need to hear from you,I'm not asking you questions.Q. My name is Detective Senior (inaudible 10:57:43).A. Can you not talk, you're on my floor, I'm not asking you to talk.Q. Frank, I'm warning you for obstruction.A. Obstructing what?Q. Police constable in the execution of his duty.A. And how am I obstructing you, I don't want you to talk to me.Q. My name is Detective Senior Sergeant Iain Chapman of the AucklandPolice –A. Okay, so I don't need your speech.Q. I'm executing a search warrant –A. Good thank you –Q. Under section 6 of the Search and Surveillance Act –A. We've got them out right here, thank you very much.Q. You have the right to refrain from making a statement –A. We're not making a statement, we're asking you questions of whatyou've taken, can you please answer the question of what you'vetaken. Am I a suspect, why are you even giving me my rights?Q. We have a list of lawyers that you can speak, because we're executinga search warrant.A. We're not making a statement, we're asking you questions of whatyou've taken, can you please answer the question of what you'vetaken. Am I a suspect, why are you even giving me my rights.Q. We have a list of lawyers that you can speak, because we're executinga search warrant.A. Am I a suspect, why are you giving me my rights?Q. You were detained pursuant to –A. I'm detained.Q. Pursuant to this search warrant.A. I'm detained?Q. Yes.A. Okay, okay.Q. You've (inaudible 10:58:20) yourself in here, I have spoken toRichard –A. Okay, okay if I'm detained we're gonna get to that later, now what –[46] The Police officer video-recorded this further exchange in the conferenceroom:Q. (inaudible 10:58:51) I have spoken to Richard –A. Okay, okay fine, we're gonna get to that later, now what's in theenvelope please?Q. You have the right to refrain from making a statement.A. Nobody's making a statement, what's in the envelope?Q. You have the right to speak to a lawyer in private and without delayand we have a list of lawyers that you can speak to for free. Do youunderstand your rights?A. Yes, thank you very much now what's in the envelope?Q. (inaudible 10:59:14).A. And where they taken from what office?Q. The office in the (inaudible 10:59:25).A. The office in the – just to be clear I'm just going to record this. Areyou talking about the first door there on the left, is that correct?Q. Yes, the glass door.A. The glass door right here that's visible to us?Q. The one that's just been opened.A. Okay, I just wanted to confirm that, next please. (inaudible 10:59:41)my permission to do that by the way.Q. Same place.A. Same place, another (inaudible 10:59:52) is that right.Q. (inaudible 10:59:56).A. Yep, great, thank you.Q. Exhibit 3, (inaudible 11:00:06) in relation to the sale (inaudible10:59:55) property 3 (inaudible 10:59:58) [Eden Crescent property].A. Great, thank you.Q. And exhibit 3 (inaudible 11:00:06).A. And same place, is that right?Q. Same place.A. Is that everything?Q. That's everything.A. Okay, and are you done with your search?Q. No.A. You're not done, what's left?Q. We've got the warrant, we'll see – we want the full files in relation tothis sale and purchase (inaudible 11:00:25) property. There's alsosome documents in relation to the trust account, and the settlementstatements.A. Okay. Well we need time to consider the warrant obviously before wecan give you (inaudible 11:00:42) on that.Q. Frank, that's not how it works. We're here with the search warrant,we will be obtaining this, ideally with your co-operation as wediscussed on the phone.A. Okay, (inaudible 11:00:50).Q. And if not, then we will just search.A. Okay, and that's what I mean, so as to the question of co-operation,we'll have to consider that.Q. Well how long are you talking about?A. I don't know, as long as it takes.Q. Well that's again –A. Are you laughing, is there something funny here, Sir?Q. Frank –A. Is there something funny here, Sir? Is this a funny situation?Q. Frank –A. Thank you.Q. As I said to you before, we're here executing a search warrant.A. Okay, I thought it was something comical that was happening here. Iwas confused.Q. Frank. I can't understand you. You have actually hurt my foot, whichI am having treatment on.A. Okay.Q. You were very rude –A. Is that what's funny? Is that what's funny?Q. Frank – no it's not –A. Thank you, okay, yes, please.Q. We will be searching this office.A. I understand, co-operation is the one we're talking about right now,please let's not talk about what you're gonna do, you said that you'dlike my co-operation, is that right or wrong?Q. Ideally.A. Ideally.Q. But we don't need it.A. And nobody's debating that, Sir. So the question is, do we wish toco-operate, correct?Q. Yes.A. Okay, we'll come back to you with that.Q. How long?A. Carry on with your search.Q. How long?A. As long as it takes, I told you that.Q. Okay, we'll carry on with the search.[47] The above exchanges, in particular the use of the words "detained pursuant tothis search warrant" and the reading of NZBORA rights, led Mr Deliu to believe hewas being treated as a suspect and detained pursuant to the search warrant, whichmeant he was therefore unable to leave level 7. He said it never crossed his mind thatDetective Senior Sergeant Chapman was not being serious and therefore he was of theview that the best approach would be to accept the situation for the moment, least hebe charged with resisting arrest or the like and later seek legal recourse.[48] Part way through the recorded exchange between Detective Senior SergeantChapman and Mr Deliu, Detective Holland showed Mr Deliu the items that hadalready been seized and which were in the exhibits box, being what the Police thentermed items 1, 2 and 3. After Mr Deliu was shown these items he asked if that wasall and it was explained to him several items were still outstanding and it was outlinedwhat they were. Mr Deliu also asked the Police officers where they had taken thedocuments from and more than once he went over which specific office they weretaken from. He would have realised from this exchange that the Police Officers hadobtained material that was located in Justitia Chambers.[49] Mr Deliu then left the conference room telling Detective Senior SergeantChapman that he would take the warrant into consideration and get back to him.Detective Senior Sergeant Chapman asked for his co-operation in finding theremaining items but Mr Deliu said he needed time to consider. When asked how longthat would be, Mr Deliu replied: as long as it takes, and when told his co-operationwas not required he replied: fine, continue with your search then. He then walkedtowards his office. Detective Senior Sergeant Chapman said he regarded Mr Deliu'swords "continue with your search" as him granting consent for the search to continue.Mr Deliu then went to his office where he remained.[50] Mr Deliu denied interfering with any search, he said there was no search takingplace in the conference room. There was simply a box of material on the desk and hehad asked what was in the box. By this time he had a copy of the search warrant.16His queries had been addressed to Detective Holland and he did not want to engagewith Detective Senior Sergeant Chapman much less have his NZBORA rights read tohim.16 Mr Deliu thought Mr Zhao or someone else connected with the law firm had given him a copy ofthe warrant when he first arrived at level 7.[51] Detective Senior Sergeant Chapman said he was prepared to have a discussionwith Mr Deliu when he first entered the conference room, but this was quicklyoverridden by Mr Deliu making it clear he was not willing to hear anything DetectiveSenior Sergeant Chapman had to say: had you come into the office, sat down and you and I had a conversation,that none of this would have occurred. From my perspective, everything thatoccurred, with respect to the detention, to the warning to obstruction, was adirect result of your action as you came into that office, and the manner atwhich you approached that circumstance. [52] As Detective Senior Sergeant Chapman saw matters:I quite literally couldn't explain one point of why I was there.He also went on to say: had I been put into that same situation now, I would have just arrested you.[53] When queried whether the arrest was for obstruction he said, yes: My view is that you were trying to go straight to that exhibit box and getin the way of the police investigation.[54] From Mr Deliu's perspective he was simply asking what had been taken.However, from Detective Senior Sergeant Chapman's perspective, he was trying tointroduce himself as the officer in charge of the action and Mr Deliu was not willingto listen to that. As Detective Senior Sergeant Chapman saw it:A. You [Mr Deliu] were trying to control a situation that is very clearly underthe control of police. You were injecting yourself into the middle of apolice inquiry, you were not listening to anything that I had to say, youweren't allowing my staff to go about their business, you wantedimmediate answers to questions which, in my view at that stage, youweren't entitled to. The equivalent would be a disorder event on the street,where I am arresting someone who is intoxicated and one of theirintoxicated friends comes up and gets in the way. And the absoluteappropriate action at that stage for us to control that situation, is to arrestthe person who is obstructing a constable in the execution of their duty.Q. All right, but the search – there was no actual search going on in theconference room because there were no papers in the conference roomcorrect?A. So we had paused the search at that stage and we were waiting forMr Zhao to arrive, as per the phone call with Mr Zhang. So we had takensteps to remove ourselves from the search area, awaiting Mr Zhao toarrive and I was hoping to have that sort of civil conversation withMr Zhao to explain the circumstance but that didn't happen.[55] Detective Senior Sergeant Chapman identified two ways in which Mr Deliuwas obstructing the search. One, was by refusing to have a civil conversation and theother, was by injecting himself into the room without giving Detective Senior SergeantChapman an opportunity to offer any explanation. When it was put to him that thecrux of it was Mr Deliu did not want to talk to him, the answer was:A. No, the main reason I warned you for obstruction, the absolute in my view,you were walking into that office and began walking around the table toget to that exhibit box. In my mind, how that was going to play out, hadwe not stopped you verbally, you would have walked up, grabbed theexhibits and started going through them, and that was the line at whichyou would have been arrested for obstruction.A. so I was warning you ahead of what I thought you were about to do.Everything else around your conversation, your lack of willing to engage,is the context, but it was your physical actions of heading around to thatbox of exhibits, in my mind I was playing out that you were going to goin and try and tamper with what we were dealing with, and that was thepoint at which you would have been arrested for obstruction.Q. Just to be clear here, so you were warning me for an offence that hadn'tyet taken place?A. Yes.[56] At some point in the exchange Detective Senior Sergeant Chapman consideredhe had gained sufficient control of the situation:A. I thought in my mind we had better control of it. By that stage I had – themood, well, the mood of the room, did it change? No, it didn't change,but I certainly felt like you had at that point listened to me and realised inmy mind that – generally if I issue a warning to some that they're aboutto be arrested for an offence, historically they either continue to do it andget arrested or reflect on what action they were taking that was about toget them arrested and they back off. And I, in my mind, I got to that pointwhere you had changed your direction from that box, or at least trying topick up things, and actually get in the way, to just filming, and I wasprepared to accept that just filming. The last thing I wanted to do wasarrest you, because I knew that that would – it was going to go down apath that I certainly in no way intended that day to go down. I wanted tohave a civil conversation with Mr Zhao, with yourself as you came intothe room. The absolute last thing I wanted to do was arrest you. That's a,in my mind is, is, you know, it's a big thing to do regardless of the situationlet alone the fact that we found ourselves in a law firm talking to the ownerof that law firm. That's the last thing I wanted to do, but I did want tomake you very clear that you weren't in control of that particular situation.Q. Okay, but just to be clear, I didn't actually do anything to try and take thebox out of that office, correct?A. No, you didn't.Q. And I didn't do anything to try and take the evidential, the envelopes, outof that room either, did I?A. No, you didn't.Q. So you're saying that you sincerely believed that I was going to just takethat box and, what, run away with it?A. I think – well, no, not run away. You don't strike me as the sort of personwho would run away from anything, with respect. I suspect you wouldhave gone in there, had a look at them, opened them up, demanded thatwe didn't touch them any – I suspected you wanted to control thesituation to the best of your ability. That's what I thought would happen.I didn't think you would grab the box and run out the door, that's not it,but I certainly in my mind thought that you were trying to control asituation which I wasn't prepared to accept.[57] Detective Senior Sergeant Chapman made it clear that the protecting of the boxof exhibits was what was uppermost in his mind:A. I think I pretty – in my mind I had made it pretty clear from that issueof the warning that if you – there was a line, and that the overt actionto uplift any of those exhibits or control our movements around them,if you crossed that line, you were more than likely going to bearrested. I'm pretty sure I got that message across, despite the mannerin which our conversation was going, I'm pretty sure I got thatmessage across to you.Q. Just so I'm clear, what do you mean, "Controlling the movements,"I'm just not quite sure what that means?A. Around those exhibits, those exhibits were the key things that I wastrying to protect, the safety and security of those exhibits that were inour custody. If you or anyone else in the firm had taken any sort ofaction to try and either remove those or touch them or any sort of – inany way deal with them after they were in our care, that would havebeen the line that would have been crossed with obstruction and that'swhat I was issuing the warning for.[58] Detective Senior Sergeant Chapman considered that the direction he gave toMr Deliu that he was detained pursuant to the warrant was one way of exerting controlover the situation facing Police. It was a lesser form of control than arresting Mr Deliufor obstruction and in Detective Senior Sergeant Chapman's view it achieved thedesired result as it caused Mr Deliu to desist from the intrusive conduct:Q. Detective superintendent the transcript I've got of the video which is inMr Deliu's brief of evidence records you giving him a warning that hewas obstructing a constable in the execution of his duties, and then there'ssome exchange, and you say that you're executing a search warrant. Youthen give him a caution, and you then proceed to tell him that he isdetained pursuant to the search warrant. So at what point did you thinkhe had, to put it colloquially, backed off to the point where you didn'tneed to engage with him anymore, was it at the time when you warnedhim of potential arrest for obstruction, or was it at the time after you'dgiven him his Bill of Rights, or was it at the time after you'd given awarning, given the Bill of Rights, and also said he was detained under thesearch warrant? So I've got three scenarios, and I'm just –A. Absolutely.Q. – trying to work out which one it was in your mind that you'd consideredhe'd backed off?A. Of course, Ma'am. So in my mind, how it played out was we wereawaiting, we were sitting in a conference room with a box of exhibits onthe table, awaiting the arrival of Mr Zhao. At that stage I didn't know thatMr Deliu was coming. I looked up and I saw Mr Deliu and I use the term,"Storm into the room," because it was in that – and immediately starttalking, "I own this place, what are you doing, what have you taken," orwords to that effect. In my mind, and this was within a couple of seconds,I saw him begin moving around the table to those exhibits. That's whenthe warning was issued, "You need to stop, just everyone calm down, youneed to stop and listen to me so we can explain this and have a properconversation." So that's when the warning for obstruction happened.That seemed to pause the situation momentarily, and I felt in my mindthat we had regained a certain amount of control, despite the conversationthat was happening, Ma'am. I then went back into the proceduralapproach of who I am, why we're here, and that we're executing a searchwarrant, and then as a result of that I would then give him his rights asthe occupier of the property, because he had clearly identified himself asthe occupier. The words were, "I own this floor," or words to that effect.So I gave him his rights as the occupier that we were executing the searchwarrant on. Because he had injected himself into the scene from anoutside angle, I didn't know what his intentions were, Ma'am, but it wasclear he wanted to control everything that was happening, in that veryshort window of interaction with him. So at that stage I said, "No, youknow what," in my mind I'm sitting there going, if we need to, if we canget through this without it all becoming far more than what it is, that Iwould at that stage tell him, "Look, for the period while we can sorteverything out and everyone is fully informed you are detained for thepurpose of the warrant so that we can establish your role. Are you theoccupier, are you counsel acting, do you want to claim privilege." Noneof that was established at that stage. So it was a very dynamic situationin a very short space of time. So that, in my mind it was dual purpose,(a) he needs a warning for him coming into this office and trying tocontrol a police action, and (b) I needed to, if he decided to just walk outthe door again and try and take control of all his people, which Iunderstand he did at some stage tell people not to talk to us, that's thepoint at which I say, "No, actually, you know what, you're detained."Ma'am, in hindsight, and I have reflected on this over the years, Iprobably would have and should have just arrested him. He would havethen been in our control, the obstruction in my mind had almost certainlybeen fulfilled, and to take pure control of it. However I knew that thatwas, I was trying to complete a job with the minimum amount of, what'sthe word – disruption across the entire, the entire bandwidth of what wewere dealing with.Q. Well, did you then see, telling him that he was detained pursuant to thesearch warrant as one way of exerting control over him but a lesser formof control than if you'd taken the other step of arresting him forobstruction?A. Yes, Ma'am. Absolutely.Q. So it was a lower form of control you were seeking to exercise over him?A. Yes, Ma'am, yeah.Q. Okay, so if you say that you detained me pursuant to the search warrant,what I'm asking you is – I'll put it as a proposition. My proposition toyou is the only lawful way in which you could have detained me pursuantto the search warrant was solely for the purposes of determining whetherthere's a connection between me and the object of the search. Do youagree with that proposition at least on the terms of the warrant?A. Yes.[59] Detective Senior Sergeant Chapman explained the detention in this way, in hisview it lasted no more than a matter of seconds:17Q. Okay, did anybody else conducting the search do that?A. No, well, that would have been in the form of interviews which didn'treally occur given the manner in which we found ourselves there. Thedetention period, in my view, and I believe objectively, lasted a matter ofseconds. The moment that you turned around and walked out, in my mindyou had removed yourself and we were just going to get on with ourbusiness. So the period of detention in my mind was, if you'd chosen tostay in that room and continue to try and do what you were doing, I waseither going to, well I was going to try in that conversation with you todetermine your connection to the paperwork. "Mr Deliu, do you knowabout this conveyancing file, do you know, did you give instructions to[Ms S], what's your involvement in this conveyancing file?" These arethe sorts of questions I would have asked you or at least one of myinvestigators would have asked you. That clearly didn't happen. Thealternative was to arrest you and then we would have transported you backto the Auckland Central Police Station and then maybe at some stageinvited you for an interview. As it happened, you turned around and justwalked from the room. So in my view, in my mind, you had removed17 See discussion on the legal basis for this form of detention at [181] – [190] herein.yourself, the situation was back under control, there was very little thatyou could have done obstruct us or further get in our way from your officeand it was quite an eloquent solution to what was potentially a very, verytricky circumstance that we found ourselves in.Q. So on your evidence then it was basically me who decided when thedetention ended?A. Yes.Q. By leaving?A. That's a fair comment.A. Whether I was referencing specifically in my mind at the time 118 of theSearch and Surveillance Act, I can't be clear. What I did know is giventhe circumstance that was facing before me, the appropriate action, andI'm playing out in my head very, very quickly, what am I able to do here?And that's the action that I took. So, no, I wouldn't have said immediatelyin my mind, okay, 118(1) and then processed that. It would be more acase of I have a person who's trying to interject himself into a criminalinquiry, into a search warrant, not appropriate, he's certainly trying tocontrol what we're doing and he's making moves for that box. Whatpowers do I have? And as I said, in hindsight it probably would have justbeen the simplest approach to have arrested you, but that's what was goingon in my mind at the time.Q. And I'd asked you on at least a number of occasions whether I wasdetained and you confirmed it and said I was, correct?A. I told you, told you you were.Q. And then I asked for confirmation of it and you confirmed it?A. Yes, yes.Q. So do I take your evidence today that you do accept that I was detainedbut you're just saying that it was for an extremely brief period of time?A. Yes.Q. I think you said seconds?A. I would have to refer to the video.Q. Sure.A. It was not a very long period of time.THE COURT:Q. When you record in the statement the words, this is further up the pagewhen you're talking about providing Mr Deliu with his rights, you say,"It was likely he would be technically detained for the purpose of thewarrant." What do you mean by – I realise later you moved to tellinghim he was detained but I'm just trying to understand what you mean bythis idea of someone being technically detained for the purpose of thewarrant?A. Yes, Ma'am, I appreciate it's, it's akin to being nearly pregnant, Iunderstand, it's – look, the, it simply is, a pure detention would be yourphysical movements are restricted, ie, handcuffs in the back of a policecar or a police cell. Me saying, "Mr Deliu, you're not going anywherenear that box, you're detained for the period while we sort this out," ismore – the word "technical" is not in my affidavit, it's in my initialstatement. On reflection, it was more the ability to control his movementswithin that small boardroom that we found ourselves in. The moment hestepped out, as long as he didn't go running into the room where we hadfound the conveyancing file, and made an approach to those papers, aslong as he didn't do that, as far as I was concerned, he removed himselfto his office, he shut the door, the detention for the very small period thatit was there, I appreciate the term, "technical detention," is not one you'llfind in law, but in my mind it was very much a, for a very small momentin time I was controlling his movements within that boardroom.Part four[60] Detective Holland notes in her written statement that after the interaction withMr Deliu she was then directed to continue the search and she went to Ms S'sworkstation, which was immediately outside Mr Deliu's office.[61] Throughout this time the records Detective Holland made contain no referenceto Mr Wu being present. The impression to be gained from Detective Holland'sevidence is that for this part of the search it was Detective Holland who was searchingfor and finding the documents she itemised in her written statement. She says nothingabout Mr Wu or any other person associated with Amicus Law helping her to locatethe material or being given the opportunity to consider if a privilege claim should bemade in relation to it.[62] Detective Holland records her actions and other events at this time as follows:(a) At 11.21 am she found some papers in relation to the Victoria Street,Auckland property on the desk and sealed them in an envelope.(b) At 11.25 am she found a settlement statement and other miscellaneousdocuments relating to the Eden Crescent property and placed them inan envelope.(c) At 11.27 am she found a settlement statement relating to the VictoriaStreet property and placed that in an envelope.(d) At 11.30 am Detective Senior Sergeant Chapman left the premises andhis command position was taken by Detective Sergeant Corner, whohad returned to the scene having earlier left it at 10.15am.(e) At 11.40 am in the top right drawer of Ms S's desk, Detective Hollandrecords finding an authority to disburse money dated 16.12.2015purporting to be signed by the complainant,18 which she placed in anenvelope.(f) At 11.50 am in the top left drawer of Ms S's desk, Detective Hollandfound an authority to disburse money dated 9.11.2015 again, purportingto be signed by the complainant. She placed this item in an envelope.(g) At 11.51am in the top left drawer of Ms S's desk she found a new clientform purporting to have been signed by the complainant and she placedhis in an envelope.(h) At 11.53am in the second left-hand drawers of Ms S's desk she founda PICA and instructions for an electronic transaction and a deed ofnovation, which she placed in an envelope. All the items seized wererecorded in an exhibit's booklet.[63] Detective Holland said that from her proximity to Mr Deliu's office she couldsee him leave the room on a couple of occasions, move about the floor and speak withMr Zhang. She also saw Mr Deliu confront Senior Sergeant Corner and video-recordhis interaction with her.18 See [1] herein for details of the allegedly fraudulent conveyances.[64] The evidence from Mr Deliu and Senior Sergeant Corner regarding thisincident is that he approached her with a copy of s 143 of the SSA and asked who therepresentative was. She would not tell him who that person was. The video recordingof their interaction is as follows:Q. Where's Mr Chapman?A. He has left.Q. Okay, just to be clear, am I correct that Ms [S] –A. Excuse me, I'm –Q. Sorry, can you please not interrupt me? Is Ms [S] –A. My Name is Jackie –Q. Excuse me, don't get in the way, don't get in the way, what's wrong withyou?A. So I've taken over the control –Q. Okay, so you've taken over, I want to talk to you.A. – of this from Iain Chapman, okay?Q. Have you complied with section 143?A. Absolutely, we've complied with everything.Q. Can you even look at what section 143 is? Don't make a face when youlook. See, [Ms S] hasn't been here the whole time. You have to have thesearch warrant in her presence. Look at 143?A. Who's []?Q. Ms [S].A. Oh, [Ms S].Q. She hasn't been here the whole time when you've been conducting thesearch warrant. You haven't even contacted the Law Society, as you'reobliged to do under the law.A. Excuse me, we have.Q. Look at the statute. Don't block the video, you're being silly.A. Don't video me.Q. You're being silly, I'll video whenever I want, it's my office.A. Right.Q. Have you complied with section 143, is the question. [Ms S] hasn't beenhere while you've been conducting the search, has she?A. Fine, so you can now go, we're doing the –Q. I want to establish that, because what I'm saying is, you need to stop now.You're in breach of section 143.A. Okay.Q. You're not even reading section 143.A. You've just given me the document.Q. Please read it, kindly. You searched Mr (inaudible 11:03:43)'s office aswell, before Ms [S] was here.A. No, we complied. A representative of the lawyer was here, thank you.Q. Which representative was that?A. You go and find that out from the people at your office.Q. So you don't even know who was here.A. I do know who it was.Q. Who?A. You go and find that out.MR DELIU:Okay, Daniel, did you say that you were a representative of [Ms S] thismorning, because the police spoke with you, is that right?MR ZHANG:Yes, I didn't say I'm a representative.MR DELIU TO POLICE:So you're a liar. Who was the representative? Who was the representative?Okay, then I'm going to call the high –[65] Later Detective Holland saw Mr Zhang approach Senior Sergeant Corner, handher a telephone and advise her the High Court was on the line. Shortly after this thesearch was suspended at 11.55 am on the advice of Detective Senior SergeantChapman, who had been contacted about recent developments by Senior SergeantCorner.[66] Later that day there was a hearing in the High Court before Edwards J.19Pleadings[67] It is from the above facts that Mr Deliu brings his claims of: arbitrary detention;false imprisonment; and misfeasance in public office. The defendant accepts it is opento Mr Deliu to bring the NZBORA claim for arbitrary detention but contends Mr Deliucannot bring the claims in tort because of directions given by Downs J in a judgmentdated 19 May 2017 striking out various causes of action pleaded in an earlier statementof claim filed in this proceeding20 and subsequently in a minute in this proceedingdated 28 August 2017.[68] I propose to deal with the question of whether a plaintiff can be barred frombringing a cause of action that is not time barred and is otherwise a reasonable causeof action later in this judgment. For the moment I am treating all causes of action inthe latest statement of claim filed on 13 July 2019 as being actionable and I am treatingthe statement of defence to this claim as including denials of the claims for falseimprisonment and misfeasance in public office. In this regard I note that thepenultimate statement of defence contained denials of these causes of action as wellas a pleading that these causes of action were barred by the orders of Downs J. Whenthe statement of defence to the most recent statement of claim was filed those denialswere omitted by what I consider to be a mistake on the part of the defendant. Forreasons to be given later in this judgment I consider the mistaken omission to includethe denials in the most recent statement of defence should not bar the defendant fromdenying those causes of action.Arbitrary detention s 22 NZBORA[69] Mr Deliu contends that what occurred at level 7 on the morning of 31 August2016 was an arbitrary detention that breached s 22 of the NZBORA. The particularsof the detention are given as follows: (a) the defendant threatened Mr Deliu with arrestthrough Detective Senior Sergeant Chapman warning him for obstruction and/orreading Mr Deliu his rights as a suspect for obstruction in circumstances where he was19 See the associated minute of Edwards J dated 1 September 2016.20 S v Police [2017] NZHC 1060.not obstructing the search; (b) the defendant wrongfully arrested Mr Deliu byintentionally confining him on the premises on one or more spurious grounds; (c) thedefendant withheld Mr Deliu's liberty to travel where he wished by containing him onlevel 7 and in doing so denied him the ability to move freely; (d) Mr Deliu was nevercharged with obstruction and the defendant never intended to do so; (e) the defendantnever formally released Mr Deliu.[70] Mr Deliu then alleges that the defendant acted unreasonably, without propercause to detain for obstruction, without colour of right under the warrant (which wasin any event void ab initio having been illegally obtained by fraud ormisrepresentation), without legal and/or factual authority for its misconduct towardsMr Deliu, frivolously, vexatiously and/or in abuse of the Police officer's power orposition. Mr Deliu pleads that the period of detention, even if initially justified, wasexcessive and in any event unjust.[71] For relief Mr Deliu seeks a declaration that his detention was arbitrary and abreach of his rights under s 22 of NZBORA, a direction the defendant publiclyapologise to him in open court and/or in a press release to the media and/or apublication on the front page of the New Zealand Police's website for a period of onemonth; an order that the defendant pay Mr Deliu not less than $15,000 in generaldamages for humiliation, embarrassment, loss of dignity, loss of self-esteem, loss ofpride, distress, anxiety, injury to reputation and/or trouble and inconvenience, and notless than $5,000 in public law damages. Costs are also sought for the period whenlawyers were acting for Mr Deliu.False imprisonment[72] For the claim of false imprisonment Mr Deliu relies on the video-recordedexchange that occurred between him and Detective Senior Sergeant Chapman whenMr Deliu arrived at the premises at about 11.00 am. He alleges that the effect of theexchange was to detain him pursuant to the express warrant provisions and/or impliedpowers thereto. Mr Deliu alleges the detention continued for some time between11.03 am and 11.35 am. During this time he alleges he was never informed that hewas no longer being detained and no Police officer present on level 7 ever informedhim that he was no longer being detained. Mr Deliu alleges, therefore, that he wasunable to and did not leave the premises at any time from 11.03 to 11.35 am and onlyfinally left the premises at 11.45 am. He alleges that he was detained at level 7 for atleast 27 minutes and up to a maximum of 42 minutes.[73] Mr Deliu alleges the detention amounts to a false imprisonment because it wasa detention without lawful justification. He seeks judgment against the defendant,referral of the judgment to the Independent Police Conduct Authority and/orCommissioner of Police for consideration of possible disciplinary actions against theoffending officers. He also seeks exemplary damages in the sum of $75,000 for thelack of factual and/or legal basis to make the arrest and/or detention and/or failure torelease him from custody.[74] He alleges the execution of the search warrant was conducted in a mannercontrary to law for which he seeks $15,000 in general damages for humiliation,embarrassment, loss of dignity, loss of self-esteem, loss of pride, distress, anxiety,injury to reputation and/or trouble and inconvenience and $5,000 in special damagesfor a lost work day. He seeks costs for the period of time when he was legallyrepresented.[75] As part of the false imprisonment claim Mr Deliu separately challenges theobtaining of the search warrant, which he alleges was obtained by reason of theapplicant constable making, wilfully false, recklessly or grossly negligentlyrepresentations to the District Court Judge who issued the warrant that s 143 of theSSA would be complied with. He alleges that this failure rendered the search warrantvoid ab initio, which meant it could not provide a lawful basis for his detention.Misfeasance in public office[76] Mr Deliu alleges the defendant committed misfeasance in public office on oneor more occasions in August 2016 by intentionally, actually knowing its actions werebeyond the limits of its public office and/or with reckless indifference as to whether itwas acting outside those limits and did so with malice towards Mr Deliu with intentionto harm him and/or knowing its conduct was likely to harm Mr Deliu and/or withreckless indifference as to whether Mr Deliu would be harmed and Mr Deliu was likelyto be harmed and/or was actually harmed in the form of humiliation, embarrassment,loss of dignity, loss of self-esteem, loss of pride, distress, anxiety, and/or trouble andinconvenience.[77] The instances of this misfeasance are particularised as follows. The firstoccasion being when Detective Holland was reckless or malicious in her pre-24August 2016 application for a search warrant of Level 7 by giving an assurance to theDistrict Court that s 143 of the SSA would be complied with in terms of an appropriatelegal representative being present and able to claim privilege when she never had anyintention to do so.[78] Particulars as to the defendant's bad faith include Detective Holland and SeniorSergeant Corner's unwillingness to accept that Ms S through her legal representative,Mr Deliu, had asserted a basic and fundamental human right to silence and insteadsought repeatedly to violate or breach that claim against self-incrimination in thefollowing instances: (a) on 17 July 2016 when Detective Holland sent an electroniccommunication to Mr Deliu then counsel for Ms S and impliedly threatened to makeher a criminal suspect for refusing to speak with the defendant; (b) Detective Hollandon 20 July 2016 at 8.17 am further threatening Ms S with an NZLS complaint for notagreeing to waive her right not to speak with the defendant; (c) Detective Holland'ssupervisor, Senior Sergeant Corner on 21 July 2016 at 7.35 am continuing to writeexpressing the defendant's displeasure at Ms S not speaking to the defendant byreferring to it being "unusual"; (d) when questioned under what specific power thedefendant was acting when threatening to refer Ms S to the NZLS no legal basis couldbe given by the defendant other than a vague reference to duty as Police officers; (e)notwithstanding that Ms S had made abundantly clear that she would not be speakingwith the defendant on 25 July 2016 Senior Sergeant Corner disregarded Ms S's refusalthrough counsel to speak and said the defendant would in due course makearrangements to speak with Ms S; (f) even after the search of Level 7 the defendantmade a further attempt to interview Ms S on 1 September 2016 and refused to leavethe premises unless and until Ms S had spoken to her.[79] The second occasion of misfeasance is alleged to be when Detective Hollandfailed to ensure that before the search was progressed an appropriate legalrepresentative was actually present and able to claim privilege before she executed thesearch warrant during the search on 31 August 2016 as had been assured to the DistrictCourt when obtaining the warrant.[80] The third occasion of misfeasance is alleged to be when Senior SergeantCorner was presented with a hard copy of s 143 of the SSA by Mr Deliu, and thereforeput on express notice that there was no authorised representative present and stillcontinued the search along with Detective Holland in the background actively doingso even after having heard the exchange.[81] The fourth occasion of misfeasance is alleged to be when Detective SeniorSergeant Chapman in the course of 31 August 2016 in exchange with Mr Deliu warnedand/or detained Mr Deliu without a proper basis and/or a cogent explanation of hisalleged offending and/or omitted to even notify Mr Deliu that his period of detentionhad ceased.[82] Mr Deliu alleges that as a consequence of these misfeasances Level 7 wasunlawfully raided and he was illegally deprived of his freedom, both indignities havingoccurred in front of his staff and professional colleagues.[83] The relief Mr Deliu seeks is referral of the judgment to the Independent PoliceConduct Authority and/or Commissioner of Police for consideration of a report aboutthe defendant's practices in obtaining and executing search warrants, especially in aprofessional lawyer's setting with mandatory statutory requirements regardingprivilege and the detention of persons in the course of such search, $1.00 in nominaldamages, costs for the period when lawyers were acting for Mr Deliu.Law relating to search warrantsGeneral law on privilege[84] Sections 142 to 148 of the SSA apply to searches that may encounter privilegedmaterial, including legal professional privilege (legal privilege). Legal privilege isgenerally understood to apply to communications between a client and his or her legaladviser that are intended to be confidential and are made in the course of and for thepurpose of the client requesting or obtaining professional legal services and the legaladviser giving such services.21[85] The law attaches a high importance to legal privilege. In B v Auckland DistrictLaw Society members of an Auckland law firm were both under a disciplinaryinvestigation by the Auckland District Law Society and involved in litigationconcerning the transactions that had led to the disciplinary complaint.22 Privilegeddocuments relevant to the litigation and the disciplinary investigation were being heldby an independent lawyer on a restricted basis. Subsequently, another lawyer, whowas unaware of those restrictions, gained access to the documents and he or sheshowed some of them to the disciplinary committee investigating the complaint. Thelaw firm brought proceedings in this Court for the return of their documents and theAuckland District Law Society counterclaimed seeking an order for their production.Paterson J held the documents were legally privileged but would not order their return.The Auckland District Law Society appealed and by a majority decision the Court ofAppeal found that legal privilege was abrogated by the investigative process beingundertaken under s 101 of the Law Practitioners Act 1982. The law firm appealed tothe Privy Council which found the legally privileged character of the documents wasparamount and the documents should be returned to the law firm.[86] The Privy Council affirmed the description of legal privilege given in R vDerbyMagistrates' Court ex p B as " a fundamental condition on which the administrationof justice as a whole rests . . .". 23 The principles for the application of this privilegewere stated to be:24Some principles are well established and were confirmed by Lord Taylor ofGosforth CJ in R v Derby Magistrates' Court at p 503. First, the privilegeremains after the occasion for it has passed: unless waived "once privileged,always privileged". Secondly, the privilege is the same whether thedocuments are sought for the purpose of civil or criminal proceedings andwhether by the prosecution or the defence. Thirdly, the refusal of the claimantto waive his privilege for any reason or none cannot be questioned or21 See s 54(1) of the Evidence Act 2006. For the general law see R v Uljee [1982] 1 NZLR 561 (CA),affirmed by the Privy Council in B v Auckland District Law Society [2003] UKPC 38, [2004] 1NZLR 326. Section 53(5) of the Evidence Act provides that the general law governing legalprivilege continues to apply to claims for privilege that are made neither in the course of, nor forthe purpose of, a proceeding.22 B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 above.23 At [37] citing R v Derby Magistrates' Court ex p B [1996] 1 AC 487.24 At [44].investigated by the Court. Fourthly, save in cases where the privilegedcommunication is itself the means of carrying out a fraud, the privilege isabsolute. Once the privilege is established, the lawyer's mouth is "shutforever" (see Wilson v Rastall (1792) 4 Durn & E 753 at p 759 per Buller J).The Society has not alleged that any of the documents fall within the exceptedcategory, but if any of them does it retains the right to make such a claimhereafter.It is, of course, well established that the privilege belongs to the client and notto his lawyer, and that it may not be waived by the lawyer without his client'sconsent. But the privilege is available to the client whether he is a layman ora lawyer; even a lawyer – perhaps especially a lawyer – has need of theservices of another lawyer if he becomes personally embroiled in legalproceedings. (emphasis added)[87] To like effect is A Firm of Solicitors v District Court at Auckland whichinvolved clients of a law firm being suspected of fraud. The Court of Appeal found itto be "essential that searches involving law firms, where privileged information willbe held, must involve a very clear focus on the preservation of legal professionalprivilege".25 The Court of Appeal suggested that senior counsel should be engaged inrelation to the application for a warrant and it was suggested that that an independentlawyer should be present during the search.[88] The above principles are now reflected in parts of ss 53 to 67 of the EvidenceAct 2006. The statutory scheme applies to privilege claims made in the course of orfor the purpose of a proceeding; for the remainder the general law continues to apply.Section 136 of the SSA recognises all forms of legal privilege.[89] Here there were no substantial criminal proceedings on foot. However, thePolice were conducting an investigation that could have led to a criminal proceedingagainst the persons involved in the fraudulent conveyance, including potentially Ms Sand perhaps other lawyers of Amicus Law. The execution of a search warrant issomething that is done in connection with the execution of a judicial process. 26 Thismay be enough to engage the provisions of the Evidence Act relevant to legalprivilege. On the other hand, if the execution of the warrant is or becomes unlawfulthe connection with a judicial process can also be lost, in which case the general law25 See A Firm of Solicitors v District Court at Auckland [2006] 1 NZLR 586 (CA) at [136].26 See Simpson v Attorney General [1994] 3 NZLR 667 (CA) [Baigent's case]: the discussion isfocussed on the application of statutory immunities then available and when they would cease toapply, however, the same distinction between when a search can be characterised as having aconnection with a judicial process and when it will not was being made.relevant to legal privilege would then apply.27 So, the relevant law relating to legalprivilege may change here depending on whether the execution of the warrant cancontinue to be linked to a judicial process or not. However, the scope and level ofprotection given to legally privileged information remains essentially the same undereither the Evidence Act or the general law. In such circumstances and because nothinghere turns on whether it is the statutory scheme or the general law that applies Iconsider it best to consider legal privilege under both heads.[90] Under the general law any legally privileged communications/informationrelevant to achieving the transfer of the subject properties would lose that protectionif it was for the means of, or to advance the carrying out a fraudulent conveyance, butotherwise such material would be protected.28 Any legally privilegedcommunications/information made after those transfers were completed would beprotected even if such communications/material contained information thatacknowledged the commission of a fraudulent conveyance.[91] Section 67 of the Evidence Act requires a Judge to disallow a legal privilegeclaim where the communication or information is prima facie made or received, orinformation is compiled or prepared for a dishonest purpose or to enable or aid anyoneto commit or plan to commit what the person claiming the privilege knew or shouldhave reasonably known to be an offence. The effect is essentially the same as theexception under the general law. The dishonest or criminal purpose is eithercontemporary with the subject communication/information or it is future focused.Privilege will not be lost if the subject communication/information reveals no morethan a past dishonest or criminal purpose.29[92] The provisions in the Evidence Act relevant to privilege claims are reflected inthe SSA. Section 136(1) recognises the various classes of privilege claims includinglegal professional privilege under both the general law and the Evidence Act. Section136(2) recognises that communications/information that would otherwise be thesubject of a privilege claim can lose this protection if these are received, compiled or27 See Baigent's case above at 695-697.28 R v Cox and Railton (1884) 14 QBD 153 and Bullivant v Attorney-General for Victoria [1901] AC196.29 See R v Uljee [1982] 1 NZLR 561 (CA).prepared for a dishonest purpose or to enable the commission of an offence by theperson claiming the privilege. In this regard s 136(2) of the SSA replicates s 67 of theEvidence Act and the general law exception for when legally privilegedcommunications/information may lose this protection.[93] In the present case Ms S was employed by Amicus Law and Police officerswanted to search and seize material relevant to the scope of their investigation whichthey expected to find at the location of that law firm. Many of the specified items inthe search warrant were specific conveyancing documents that do not on their faceappear to attract legal privilege. However, other specified documents, for example thevarious references to "client file in the name of [] for the sale of a property at [..]"were potentially a repository of legally privileged communications/information aswell as unprotected communications/information relevant to the conveyancingtransactions. A client file can include file notes of exchanges between lawyer andclient that are ancillary to or even only remotely connected to the main purpose of thatfile and these may include legally privileged communications/information. Thepossibility legally privileged communications/information has been placed on thewrong file is another reason for not simply working from the subject heading of aspecific legal file.[94] Further, under clause 4.2 of the search warrant authorisation was granted tosearch and seize "anything else found in the course of carrying out the search" if itwas reasonably believed that it could have been seized under any search warrant thatcould have been obtained, or under any other search power that could have beenexercised. This broader authorisation could also have led Police officers conductingthe search to encounter legally privileged communications/information.[95] Apart from the potential to encounter legally privilegedcommunications/information of the type outlined above, there were other potentialrepositories of legally privileged communications/information that Police officersexecuting the search may have encountered. Mr Deliu said that Ms S had briefed himto act for her once she learned Police wanted to interview her. Any file Ms S heldrelevant to her briefing him is likely to have included legally privilegedcommunications/information in which legal privilege was vested in her. Then thereare the files of other clients of Amicus Law; those files, which may have been workedon by Ms S or other Amicus Law lawyers, could have held legally privilegedinformation. In addition, given the layout of level 7 and the apparent use lawyersassociated with Amicus Law made of rooms associated with Justitia Chambers, therewas the potential for the Police to encounter communications/information relevant toclients of Justitia Chambers, some of which would have been legally privileged.Section 143 of the SSA[96] Section 143 of the SSA is a specific provision for search warrants that extendto lawyers' premises or material held by lawyers that relate to a client/s.143 Search warrants that extend to lawyers' premises or material heldby lawyers(1) This section applies to the execution of a search warrant thatauthorises the search of materials held by a lawyer relating to a client.(2) If this section applies, the search warrant may not be executedunless—(a) the lawyer is present; or(b) a representative of the lawyer is present.(3) If the person who is to execute the search warrant is unable to contactthe lawyer or his or her representative, that person must insteadcontact the New Zealand Law Society and request that a person beappointed by the Society to represent the interests of the clients of thelawyer in relation to the search.(4) Before executing the search warrant, the person who is to execute itmust give the lawyer or his or her representative, or any personappointed by the New Zealand Law Society under subsection (3),—(a) the opportunity to claim privilege on behalf of the lawyer'sclient; or(b) the opportunity to make an interim claim of privilege ifinstructions have not been obtained from the client.[97] Section 143(1) specifically applies to the execution of a search warrant thatauthorises a search of materials held by a lawyer relating to a client. The sectionseems to me to be predominantly directed at circumstances where a client is a potentialsuspect but the lawyer representing him or her is not. Thus, the section contains anelement of trust or confidence in the lawyer or a representative of the lawyer properlyidentifying and asserting legal privilege over material thought to be in that categorybefore the warrant is executed. Where legal privilege is asserted, that is done on behalfof the client because the privilege is vested in the client and not the lawyer.[98] However, because Ms S was viewed as either a dupe or a potential suspect, andfor that matter Mr Zhao as well, these were factors that may be thought to bring theapplication of s 143 into question.30 However, her potential involvement as a suspectrelated to the fraudulent transfer of a client's properties and material Ms S held on theclient file that related to those conveyances would still satisfy the qualifyingrequirement of s 143(1). Insofar as Mr Zhao may have been thought to be a potentialsuspect the same reasoning would apply to him as well.[99] Section 143(2) provides that if s 143 applies, (as I have found it does), thesearch warrant may not be executed unless the client's lawyer is present, or arepresentative of the lawyer is present. Section 143(3) provides that if the person whois to execute the search warrant is unable to contact the client's lawyer or his or herrepresentative that person must instead contact the NZLS and request that a person beappointed by the NZLS to represent the interests of the clients of the lawyer in relationto the search. Here, because Ms S was a potential suspect this status would make itdifficult for her to undertake the role s 143(2) provides for the client's lawyer. Thereference in s 143(3) to use of a representative appointed by the NZLS if the partywanting to execute the search warrant is "unable to contact the lawyer or his or herrepresentative" suggests at first blush the practical inability to contact the subjectlawyer. However, if the phrase is read broadly it can also be understood to apply tothose circumstances where the subject lawyer is legally unable to be contacted becausecircumstances disqualify him or her from undertaking the lawyer's role under s 143(2).[100] The broad interpretation that I consider is available for when a lawyer will beunderstood to be unable to be contacted also fits with presence of the element of trustthat I consider s 143 implicitly places in the lawyer responsible for undertaking theroles given to him or her by s 143(2)(a) and (b).31 The role is not one that could be30 This is because it suggests the search will include a search for material that implicates the lawyer,and which is therefore relevant to the lawyer's conduct rather than the client's conduct.31 See discussion at [97] herein.properly carried out by someone who would stand to gain from keeping adverseinformation from the scrutiny of the warrant holder.[101] On one view Ms S was someone who was complicit in the fraudulentconveyances and therefore a potential co-offender. This would place her in a conflictof interest when it came to whether she could properly discharge the role given to alawyer under s 143(2). It is difficult to see how someone who is suspected of beinghand in glove with a client in a fraudulent conveyance could then assume theresponsibility s 143(2) gives to the clients' lawyer. Indeed, the degree of notice s143(2) entails if it is to operate effectively could undermine a search by alerting thelawyer/potential suspect to the fact Police want to see relevant legal documentsrelating to the fraudulent conveyance. So, until the character of Ms S's involvementin the fraudulent conveyances was clarified the potential conflict of interest is likelyto have rendered her unable to be contacted for the purpose of s 143(2).[102] The Police could have looked to Mr Zhao as the employer of Ms S to carry outthe lawyer's role under s 143(2)(a) or to appoint a representative under s 143(2)(b).However, there are references in the evidence on occasion to the Police being unsureas to whether Mr Zhao was also complicit in the fraudulent conveyancing transactions.Such suspicions could have rendered him legally unable to be contacted as well, whichwould then have left the Police reliant on the NZLS under s 143(3) to appoint arepresentative.[103] However, there is common agreement that Ms S never performed the role thats 143(2)(a) would otherwise allocate to her as the lawyer holding the subjectconveyancing file. There is no evidence that Mr Wu ever told Police he was appointedby Ms S to carry out the representative's role in s 143(2)(b). The evidence, which Iaddress in detail later, of his appointment as representative does not show Ms S havinga part in this act. The above legal findings on the application of s 143 are, howeverrelevant to address arguments made by the defendant on the legal effect of s 143, whichI shall address shortly.[104] Mr Deliu gave evidence that he was briefed by Ms S to act for her in the Policeinvestigation into the fraudulent conveyance, which meant he was acting for herpersonally. He could not, therefore, legally perform the role of her representative interms of s 143(2)(b), because the same potential for a conflict of interest thatdisqualified her from performing the lawyer's role in s 143(2)(a) would also haveaffected him. His evidence included him saying that he had tried to, but could notcontact her on the morning of the search to obtain instructions. Even if he hadcontacted her, in my view, he could only take and act on instructions that related to herpersonal interests. Thus, he could have claimed protection for legally privilegeddocuments relevant to her legal case as someone the Police wanted to interview, buthe could not be appointed her representative under s 143 in relation to privilege claimsfor her clients. I make this finding because in evidence Detective Senior SergeantChapman said that once Mr Deliu arrived he considered that Mr Deliu could fulfil therole of representative for the purpose of s 143 and also because it forms part of thedefendant's argument.32[105] The defendant submits that the role of representative is not analogous to thatof an agent for the lawyer and that the purpose of having a representative is to protectthe client's legal privilege in the absence of the client's lawyer. This leads thedefendant to submit that, apart from the role of the NZLS under s 143(3): (a) the lawyerfor the client need not be the person who appoints the representative under s 143(2)(b);(b) this role does not require someone who is also a lawyer; and (c) legally arepresentative under s 143(2)(b) may be "any person and there is simply a question offact about whether they were [the representative] or not".[106] I accept the defendant's argument as to the purpose of providing for arepresentative. I also accept that it is not helpful to draw analogy with the law ofagency. An agent owes a fiduciary duty to his or her principal, and here if therepresentative is viewed as being analogous to the lawyer's agent, it would follow thata fiduciary duty was owed to the appointing lawyer as well as to the client, whichcarries the risk of a conflict of interests. Otherwise I reject the defendant'ssubmissions.32 See discussion at [131] herein.[107] I consider the drafter of s 143 contemplated that the lawyer acting for the clientwould be the person well placed to choose a substitute for himself or herself. First,because the lawyer is likely to know the extent to which legal privilege is engaged ina particular file/s. Secondly, this view accords with the language of s 143 whichexpressly refers to the "representative of the lawyer". If Parliament had intended thatany person, otherwise appropriate, could stand in for the client's lawyer the sectionwould then have read "an alternative representative of the client". The linkage s143(2)(b) draws between the representative and the lawyer indicates to me thatParliament intended the lawyer of the client to choose this representative. Thirdly, thisview is more likely to achieve the purpose of s 143 because typically the lawyer of theclient is best placed to know who else would in the circumstances of the particularcase be best placed to ensure the client's legal privilege is protected. Failing the lawyerbeing available to make this choice the alternative back stop position in s 143(3) is forthe NZLS to choose the representative.[108] The argument advanced by the defendant that s 143(2) imposes no qualifyingcriteria on who can be the representative of the lawyer under s 143(1)(b) is wrong.Indeed, the defendant elsewhere in its submissions accepts that the representative"must be someone who can reasonably perform the taskbecause it is part of thequestion of whether a given person was the representative for the purposes of s 143."Thus, the defendant also accepts that a representative who does not have enoughcapability to claim legal privilege properly is no more than someone who purports toundertake this role but cannot in law be treated as doing so.[109] Given the protective purpose of the role of the lawyer in s 143(2)(a) and therole of the representative in s143(2)(b) it follows by implication that the persons whoassume those roles must be persons with the capability to ensure legal privilege orinterim legal privilege is claimed, when it is proper to do so. Explicit criteria for therepresentative role under s 143(2)(b) is not required because by leaving it to the lawyerof the client to decide who should be the lawyer's representative Parliament has leftthat responsibility to the lawyer, who at all times is obliged to act in the interests ofhis or her clients. In this way Parliament has sought to ensure that the appropriateperson is appointed under s 143(2)(b).[110] Accordingly, other ways of filling the representative role in s 143(2)(b) do notsatisfy the statutory requirements. For completeness I observe that should theoccasion arise where the lawyer of the client cannot be contacted, but the client speakswith Police and chooses an alternative available lawyer to act for him or her, this tome is best characterised as a decision by the client to appoint an alternative lawyer toconform with the requirements of s 143(2)(a) rather than the client stepping in andappointing a representative of the client's absent lawyer under s 143(2)(b).[111] Section 143(4) sets out the sequence of the various steps to be taken when s143 is engaged. The subsection requires that before the search warrant is executed theperson who is to execute it must give the lawyer or his or her representative or anyperson appointed by the NZLS under s 143(3) the opportunity to claim privilege onbehalf of the lawyer's client, or the opportunity to make an interim claim of privilegeif instructions have not been obtained from the client. Accordingly, the identificationand removal from search and possible seizure of legally privilegedcommunications/information is legally required to be done by either the lawyer orrepresentative (chosen by either the lawyer or the NZLS) before the search and seizureprocess begins.[112] I am satisfied, therefore, that the subject search engaged s 143. I consider thatfor the purpose of claiming legal privilege for the client Ms S would not meet therequirements of s 143(2), given she was a potential suspect. The Police suspicionregarding Mr Zhao was weaker and it may be that he could legally have carried outthis role, but if he could not then, for the same conflict of interest reasons that applyto Ms S, the only legally available means of ensuring compliance with s 143 was forthe Police to engage with the NZLS under s 143(3).Was the search legal?[113] Whether the search on 31 August 2016 was legal or not is something that isrelevant to all causes of action. For arbitrary detention the immediate focus includeswhether the detention itself was lawful. However, detention in the course of a lawfullyexecuted search may be viewed differently from detention in the course of an unlawfulsearch. The latter precludes any detention being lawful whereas the former does not.Also, the latter can be an aggravating factor in an arbitrary detention. The same appliesfor false imprisonment. With misfeasance in public office one of the elements of thistort is unlawful conduct by a public officer. Accordingly, I consider it appropriate toexamine the question of the lawfulness of the search as a general topic, albeit one thatis relevant in various ways to the separate causes of action.[114] The application for the warrant was in evidence. At paragraph 4.59 theapplicant (Detective Holland) records that she anticipates there may be privilegedmaterial in the files sought. She cites the incorrect statutory reference (cites s 144 ofthe SSA which applies to other privileged material) and says she will arrange to searchthe property when Ms S or her representative is present and before commencing thesearch she will ask Ms S or her representative if they want to claim privilege or interimprivilege. All of which indicates Detective Holland knew the essential requirementsof s 143, despite the erroneous reference to s 144.[115] A key factor for whether the search was lawful or not is whether there wassomeone present who satisfied the lawyer/representative requirement in s 143(2). Theevidence from the defendant in this regard is confused, because at times its witnessesseemed to be saying that either Mr Wu, Mr Zhao or Mr Deliu qualified as therepresentative for the purpose of s 143(2)(b) and therefore the search was lawful. Thecase Mr Deliu makes is that none of those persons told the Police officers he wasappointed representative by Ms S and in the absence of evidence she had appointedone or more of them they could not qualify as representative under that subsection.Accordingly, no-one legally fulfilled this role, hence the search was unlawful.Mr Wu as representative[116] I have already referred to how Detective Senior Sergeant Chapman consideredit was appropriate for him to decide on the day of the search when at level 7 thatMr Wu could be the representative for the purpose of s 143(2)(b).33 Mr Wu helped thePolice officers locate certain files and the evidence shows he did not refuse to engagewith them in this way. Detective Senior Sergeant Chapman said he told Mr Wu hecould claim legal privilege if it was appropriate to do so.33 See [29] herein.[117] It is clear from Detective Senior Sergeant Chapman's evidence that his relianceon Mr Wu was not just as a representative under s 143 of the SSA, but also as someonewho would help Police locate the documents which they wanted to seize: in the law firm it was clear when we were there that there were documentsquite literally everywhere and it was going to take us a very, very long time tofind the five or six specific documents as specified on the warrant withoutsomeone who knew (a) exactly where they were. (b) Able to say whether it'slikely that there was information within those documents that was privilegedoutside the nature of our inquiry. And the natural conclusion was in theabsence of Ms [S], her legal exec, who said he knew where they were and infact took us to them, that we were operating within the confines of arepresentative of the lawyer.[118] Detective Senior Sergeant Chapman said that he was in no doubt that Mr Wuunderstood why the Police were there, what Mr Wu's role was, that the search warrantwas lawful, and that the Police needed to locate the five or six documents that hadbeen listed on the search warrant. When asked whether Mr Wu was given a chance toclaim interim privilege, Detective Senior Sergeant Chapman's response was, ", frommemory we showed him, we asked for specific documents, he located them, hereviewed them, we had a discussion about why we were there, and the privilege issueand he handed them over". This was seen by Detective Senior Sergeant Chapman tobe more than enough opportunity for Mr Wu to claim items were subject to interimprivilege. However, in terms of individual documents, Detective Senior SergeantChapman said that he was not part of any discussion about whether privilege wasclaimed for any documents because in that sense he was standing off and leaving it toDetective Holland as she was the person in charge of exhibits, and as they were beinghandled he could recall Mr Wu and Detective Holland having a discussion about thedocuments, but he was not part of that.34[119] When questioned about his appreciation of the role of the representative,Detective Senior Sergeant Chapman revealed he considered the representative wouldremove the risk of Police seeing documents that were clearly privileged and unrelated.He did not consider that the representative could claim privilege relating to a documentthat was evidence of a crime committed by the lawyer:34 See passage of evidence quoted at [127] herein.A My understanding at the time was more around, in any law firm thereare countless items of privileged paper material. We were veryspecific about what we were looking for and a representative wouldbe someone to say, "Actually no that's not the client, you're lookingat a case file in relation to another client of [Ms S], not that one." Andso it would be someone who would be able to decouple the riskassociated with us having eyes on the document which was clearlyprivileged and unrelated. I don't see the representative as being ableto claim privilege on a document that was indeed evidence of a crimecommitted by the lawyer. That's a whole sort of separate area, whichwe were delicately weaving our way through. And once it got to apoint where we determined, actually this needs to be examined in amuch higher level, which of course it was that afternoon, I suspendedall of the search.[120] The views that Detective Senior Sergeant Chapman expressed about the scopeof legal privilege suggest to me that he did not realise that in principle legallyprivileged information could attach to information relevant to the suspectconveyancing transactions and that it was not simply a matter of sorting other clients'files from the files relevant to those transactions.[121] When questioned about why Mr Wu was read his NZBORA rights, DetectiveSenior Sergeant Chapman said that it was his practice when executing search warrantsto read people their rights:A I prefer my practice when executing search warrants or invoking astatutory search power, my practice has always been that the peopleare fairly informed who I am, why I'm there and what their rights are.It's – my experience is it's better for people to fully understand whatthe consequences of them talking to me are, because of course thoserights have the right to silence. In a circumstance like this where weare executing a search warrant on a law firm which thankfully is avery infrequent thing. I found it absolutely appropriate at that stagethat anyone who was becoming subject to that search was fullyinformed, fully informed of what their rights were. –[122] Detective Senior Sergeant Chapman acknowledged that he never documentedany of his discussions with Mr Wu in relation to the representative issue. He describedthe written statement he prepared on 2 September 2016, two days afterwards, as beinghis full and unabridged account of his recollection. He confirmed that he was awarethat Mr Wu was not a lawyer but knowing that he was a legal executive he consideredthat he would be "well versed in process" and indeed, he knew where the files werewith the conveyancing documents, was able to identify them and disclose them to thePolice officers. Detective Senior Sergeant Chapman could not recall if he questionedMr Wu about his knowledge of legal privilege. He also confirmed that, to hisknowledge, Police did not look at any documents outside of the conveyancing file theywere seeking under the warrant. This was because it was Mr Wu who went to a desk,sorted through some paperwork and came up with the actual documents. DetectiveSenior Sergeant Chapman considered there was never the opportunity for the Policeto stumble across someone's legally privileged information.[123] The defendant submits there is good evidence that Mr Wu was suited to thetask of representative under s 143(2)(b) and he freely agreed to undertake that task,thus the purposes of s 143 were met. Further, Mr Deliu has not shown Mr Wu was notthe representative.[124] I accept the evidence shows that when first approached Mr Wu helped thePolice officers locate certain specific documents and he seemingly did not refuse toparticipate in the role they gave to him. However, the evidence does not go so far asto establish Mr Wu volunteered for the role of representative or that he presentedhimself to the Police officers as being someone who would be assuming this role. Thereferences in the notes of evidence that the defendant has identified as establishingMr Wu's agreement to be the representative are all followed by qualifications, whichshow that it was Detective Senior Sergeant Chapman who decided that Mr Wu couldfulfil that role.35 In her evidence Detective Holland outlined the exchanges she hadwith Mr Wu at the outset:A It would have been explained to [Mr Wu] why we were there and thepurposes of the warrant. He would have been given his Bill of Rightsand told that he was detained under that for the search, for thepurposes of the search warrant. He said that he would be able to assistus in obtaining the documents that were specifically mentioned on thewarrant.Q All right, okay, so if you just go back to the chronology, he's read hisBill of Rights, he's told he's detained, correct?Q Yep, yes.A And is it after that point that it is concluded that he qualifies as arepresentative?35 The defendant relies on 179/8 of the notes of evidence where Detective Holland says "Mr Wu saidhe would be the representative". However later on the same page 179/5-30, "It was a conversationwith Mr Chapman and Mr Wu where it was then decided that Mr Wu would, could be therepresentative under the provisions. And who decided that: Mr Chapman. Ok".A We were advised that Mr Wu was the legal exec for [Ms S] and it wasdecided that he could fulfil the representative criteria under the Searchand Surveillance Act.THE COURT:Q Who decided that?A I believe it was Mr Chapman.[125] Therefore, Mr Wu's willingness to assist Police and his acceptance that hewould act as representative for Ms S needs to be understood in the context of him alsobeing given NZBORA rights and told he was being detained for the purpose of thesearch. It is difficult to see how someone who properly fills the role or representativeunder s 143(2)(b) would trigger the statutory requirement for Police to inform him orher of NZBORA rights, or to be told he or she was detained for the purpose of thesearch.[126] Later when Detective Holland said in evidence that Mr Wu "said he would act as the representative for Ms S" she then qualified this statement when asked if herevidence had now changed from the evidence she had given the previous day by sayingMr Wu had accepted what Detective Senior Sergeant Chapman decided:THE COURT:Q Ms Holland, I may be wrong but I gained the impression from yourevidence yesterday that it was Mr Chapman who decided that Mr Wucould be the –A That's correct, that's right, yes. But I was – yeah.Q That's all right, so it was Mr Chapman –A Chapman, yes.Q – who decided Mr Wu would be the representative?A Yes.Q Right, so that's at, the evidence is the same, it's – yes, so andessentially what you're saying now is Mr Wu accepted whatMr Chapman decided?A Yes.[127] When Detective Senior Sergeant Chapman gave evidence under cross-examination he denied he appointed Mr Wu to be the representative and described howhe came to be involved in the search in this way:Q. Yeah, sure. In effect, you appointed him to representative status, fairto say?A. No, I asked whether he was prepared to do that. In conversation withhim, it was please obtain, if you can get [Ms S] to the office, if youcan try calling her on her mobile, or message her, or WhatsApp, if youcan do any of that. Tried, unsuccessful, well this is the circumstance,we're here now, in fact, what you would say is, you know, the balloonhas already gone up, we are already here, it wasn't appropriate for usto just turn around and walk away, and so a conversation was had withhim, are you prepared to act as her representative, identifying thesedocuments to him. These are the ones that we're after, and make surethat we don't have eyes on anything that falls outside these particulardocuments. And he agreed.Q. Okay, so was he given an opportunity to check the legislation, to checkthe law?A. Not by me, no. But had he asked, I absolutely would haveaccommodated. As we had done and shown along the way, we wouldhave accommodated that at any stage.Q. Okay, when you asked him if he would be willing to be arepresentative, did you refer him to section 143 of the Search andSurveillance Act 2012?A. I don't recall if I specifically showed him the legislation, but I certainlyadvised that, as we were, in plain English, as we were searching a lawfirm, there are certain rights, certain obligations that are placed uponus, and one of them is that we either need [Ms S] there or someone toact in her representative, to make sure that we don't have eyes on anydocuments that we shouldn't. So I explained it to him in that manner,and that he had the opportunity to view stuff that we were wanting totake, bearing in mind that we weren't trawling through paperworklooking at everything. We asked to see these specific documents, andhe obtained these specific – well, a portion of the specific documentsfor us.Q. Did you ask him if he understood what privilege even meant?A. I don't recall, I don't recall whether I asked him that specific question.Q. If I put it to you, wouldn't it be fair to say that he really wasfunctioning as your helper, just to help you get the documents that youwanted as conveniently as possible, and not in the role of arepresentative?A. No, I think he was more than that.Q. You think he was more than what, I'm sorry?A. You asked, did I think he was a helper, and I say no, I think he wasmore than that.Q. And what do you mean, more than that, what did he do to indicate thathe was actually fulfilling the role of a representative to claimprivilege?A. Well in the absence of giving him the opportunity to, you know, as Isay, I said a few times now, we didn't pick up random documents, weweren't there to turn an office upside down. We asked for specificdocuments, we knew that as the balloon was already up, we werealready present, that he would be able to direct us straight to it. Hedid, he confirmed that they were the right ones, they are listed in thewarrant that we are able to take, it's been signed off that we are ableto receive these documents, seal them up. So insofar as you're asking,did at any stage he stop us and say, "No that's privileged," well hewasn't, the opportunity never arose because we didn't find ourselveslooking at documents outside of exactly what we asked for.Q. Okay, so he never claimed any privilege whatsoever for anydocument?A. The conversations around the specific documents were between himand Detective Holland, not myself.[128] The defendant submits that the search warrant was for specific documents onlyand these were not the type of documents that would attract legal privilege. GivenMr Wu worked as a legal executive with Ms S he was familiar with the relevant filesand could identify the documents the Police wanted, thus avoiding a more invasivesearch of the law firm's premises. The defendant also relies on Detective SeniorSergeant Chapman's evidence that he believed Mr Wu knew and understood why thePolice were there, what his role was and that they needed the documents listed in thesearch warrant. Whilst Mr Deliu had suggested in his questions that Mr Wu may nothave understood legal privilege the defendant submits that there is no evidence to thiseffect. Further he holds a post graduate degree in law from a New Zealand university.The defendant contends that Mr Deliu bears the onus of showing that Mr Wu was notMs S's representative and all he has to support that is the fact she did not appointMr Wu on the day of the search. The defendant contends more is required and that inthe absence of proof of any objection from either Mr Wu or Ms S to him being therepresentative on the facts overall Mr Deliu cannot discharge this onus.Finding[129] I reject Detective Senior Sergeant Chapman's evidence denying he appointedMr Wu to be the representative. I consider that was essentially the outcome ofinteraction with Mr Wu. On more than one occasion Detective Holland said it wasDetective Senior Sergeant Chapman who decided Mr Wu could undertake this role.She was present and witnessed the exchanges between Detective Senior SergeantChapman and Mr Wu. The impression she formed of what happened impresses me asaccurate. This is not however to say that Mr Wu was forced to undertake the role. Myview is that when confronted with Detective Senior Sergeant Chapman saying arepresentative was required and that Mr Wu could perform that role he accepted it.[130] I reject the defendant's arguments. Before Mr Zhao and Mr Deliu arrived,Mr Wu was the only person who came close to assuming the role of the representativeunder s 143(2)(b). It is common ground that Ms S did not appoint him to that role.36The defendant essentially argues that given the documents the police sought under thesearch warrant Mr Wu was a suitable candidate to be the representative and he hadaccepted that role. That may be however those circumstances do not in my view meetthe requirements of s 143(2)(b). For the reasons given earlier I am satisfied that therole of representative under s 143(2)(b) was for Ms S or Mr Zhao to allocate to Mr Wu.Neither did so. It is not legally open to Police officers who are about to embark on asearch under warrant of a lawyers' premises to engage with someone onsite and decidewith his agreement that he can be the representative for the lawyer whose client's filesare to be the subject of the search. Accordingly, I find that Mr Wu's involvement inthe search did not satisfy the legal requirement in s 143(2)(b) for a representative ofthe absent lawyer to be involved in the manner prescribed by s 143(4).36 Detective Senior Sergeant Chapman accepted in evidence that Mr Wu never said Ms S hadappointed him as her representative. Mr Deliu also relied on an affidavit from Ms S in which sheconfirmed that was so. Whilst the affidavit was hearsay evidence there was enough other oralevidence to confirm the hearsay statement. I was satisfied was reliable and I considered it wouldhave caused undue expense and delay to have required Ms S to appear as a witness. Accordingly,I considered the hearsay evidence satisfied the requirements of s 18 of the Evidence Act 2006 andtherefore it was admitted.Mr Deliu and Mr Zhao as representatives[131] Detective Senior Sergeant Chapman also gave evidence that he considered thatonce Mr Deliu and Mr Zhao arrived each of them could also satisfy the requirementin s 143 for a representative. Indeed, Detective Senior Sergeant Chapman confirmedmore than once in evidence that he considered there were three people present whofulfilled the criteria in s 143:Q But what I'm saying is, so your evidence is that just because I[Mr Deliu] was a lawyer who was present, that made me qualified asa representative under the legal obligations the police had in executinga warrant?A I believe your words when you entered, you identified yourself as twothings. One being the owner of the floor, and the second one beingcounsel acting.Q Right, but I didn't say acting for whom.A As, the follow on from that was, if we could have a discussion and achat about what we were there to do, we couldn't progress thatconversation very well, and it was a situation that we were in wherewe were there to obtain documents and it was challenging, but at thatstage I was comfortable that regardless of your position, we still hadMr Wu there as well, and subsequently Mr Zhao, who I went and hadanother conversation with as well.Q So the police's position is in fact there were three representativespresent, Wu, me and Zhao? Do I understand that correctly?A There were three people, three representatives of the law firm there,yes. Are you asking to fulfil that criteria within the Search andSurveillance Act?Q Yes.A I was operating at that stage, initially with Mr Wu as [Ms S's] legalexec and knowing how legal exec's work, have very closerelationships to and in fact do a lot of the work. And thensubsequently you became involved as the identified owner of the firm.Between the two of you I was fairly comfortable at that stage thatrepresentation for Ms [S] with regards to the actions that we weretaking, was fulfilled. Detention.[132] I have already stated why I consider that Mr Deliu could not serve as arepresentative for the purpose of s 143, given he was instructed by Ms S to act for herregarding the Police investigation into the fraudulent conveyancing transfers.Moreover, given the interaction between Mr Deliu and Senior Sergeant Chapman it isdifficult to envisage how Mr Deliu could have performed the role of representative.[133] Detective Senior Sergeant Chapman expressed his views on the way matterscould have gone had Mr Deliu given him the opportunity to discuss matters in theconference room. However, that view does not accord with Mr Deliu being treated asa representative for the purpose of s 143:Q So just to be clear, if there was a detention, and that's an issue indispute, but if there was one, you're saying it was just pursuant to thesearch warrant, and not pursuant to any other power or authority?A In respect of what I told you on that day, I said you were detained, yousaid, "What for?" I said, "Pursuant to a search warrant." And that'swhere that conversation started and stopped. Had we been given theopportunity to fully explain, I would have said to you, "We need toestablish your role in this, we need to establish where you fit in, weneed to establish whether [Ms S] is merely a witness." Once we'd gotto the bottom of those questions, then we would have determinedwhere we were going from, and therefore what powers I was relyingupon.[134] The above exchange is more consistent with Police wanting to interviewMr Deliu and Ms S for the purpose of ascertaining their involvement in the suspecttransactions.[135] When asked by Mr Deliu what opportunity was he given to claim privilege,Detective Senior Sergeant Chapman's response was that the conversation between himand Mr Deliu had not progressed to any point where it appeared to him a meaningfulconversation could be had regarding privilege. He acknowledged that he was unableto progress any discussions with Mr Deliu and the situation was challenging:It wasn't a good situation, I'll acknowledge that straight away and in hindsightwe may have looked at it differently.[136] But irrespective of Mr Deliu's position, in Detective Senior SergeantChapman's view there was still Mr Wu and subsequently Mr Zhao who were presentand capable of being the necessary representative:A Between you [Mr Deliu] and Richard Zhao, the law with regards to arepresentative is fairly quiet, so in my view as long as there wassomeone in that office who knew why we were there, knew what wewere doing and understood that we were only looking for thoseconveyancing files and would be there to assist in finding them andmaking sure we didn't eyes on any privileged material, yes, I wasfairly comfortable at that stage that you had given your agreement thatwe could continue with why we were there. You had the warrant inyour hand, you knew what we were looking for. However, asdemonstrated when I suspended the search upon hearing you weregoing to the High Court to challenge 143, it was clear that that wasnot the case anymore, and that we removed ourselves from the search.Q Was Mr Zhao ever given an opportunity to claim privilege or interimprivilege for any client, that you're aware of?A I don't recollect the exact nature of the conversation that I had withhim, except to say he was very accommodating, he was quite pleasantto deal with, and I did canvas exactly the reason why we were there,so yes, I believe I would have more than likely discussed the issuearound privilege with him.Q Okay, but certainly not with me, correct?A No.[137] On a later occasion when the cross-examination returned to the issue ofMr Zhao being a representative for Ms S Detective Senior Sergeant Chapman stated:Q Did you discuss with Mr Zhao the specific point of whether or not hewas Ms [S's] representative?A I don't recall, I don't recall.[138] Detective Senior Sergeant Chapman could not explain why he made no recordsin his notebook of Mr Wu, Mr Deliu or Mr Zhao being the representative for thepurpose of s 143:Q Why didn't you make reference there that Mr Wu qualified as therepresentative? Wouldn't that have been a logical thing to do?A Yes, but I don't, I don't have an answer for that, why that wasn't inmy notebook.Q . So on the third page you have at 10.40, "Suspend the search untilRichard arrives." That obviously means Richard Zhao?A Yes, yep.Q And then you have at 11.03, "Frank Deliu enters."A Yes.Q And so on, and then at 11.15 you have that you speak to Richard Zhaoand so on. Also, if you thought that I fulfilled the representativefunction, why was that not marked in your notebook?A I don't know.Q And same question about Mr Zhao, if you felt that he might have filledthe representative criteria, why not note that?A I don't know.[139] The oral evidence Detective Senior Sergeant Chapman gave regardingMr Zhao acting as a representative under s 143 is unsatisfactory. First, nocontemporary record was made by him of who held the role of representative.Secondly, the written statement he made on 2 September 2016 shortly after the searchsays nothing about him discussing legal privilege issues with Mr Zhao or regardingMr Zhao as a representative under s 143.37 Thirdly, when in the above passages ofevidence Detective Senior Sergeant Chapman says he believes he would havediscussed privilege issues and alludes to doing so with Mr Zhao that is as far as he cantake matters.38 His belief is hedged with the reservation that he cannot recollect the"exact nature of the conversation" with Mr Zhao.[140] For the above reasons I am not persuaded by Detective Senior SergeantChapman's stated belief that he discussed the issue of privilege with Mr Zhao, let aloneproperly treated Mr Zhao in the manner that s 143 expects for a representative.[141] Moreover, other than Detective Senior Sergeant' Chapman's expressed viewson the eligibility of Mr Deliu or Mr Zhao to be the representative there is nothing elseto suggest either of them assumed this role. Mr Deliu never presented himself as therepresentative of Ms S when he first engaged with Police and he was not treated bythem in that way. Once he was told he was detained pursuant to the search warrant he37 In both oral evidence at trial and in the 2 September 2016 written statement Detective SeniorSergeant Chapman states that he found Mr Zhao approachable and that the two of them spokeabout Police getting access to the trust account records, so they could examine the paymentsrelevant to the suspect transactions. There was a difficulty here because the trust accounts werekept by Mr Zhao's wife and she was the person with access to them. So, such access was notimmediate. This is the type of detail Detective Senior Sergeant Chapman provides about theexchanges he had with Mr Zhao.38 There is the ancillary question of what does it mean to discuss an issue around privilege withsomeone in Mr Zhao's position. It is not immediately apparent to me that this would be theequivalent of treating Mr Zhao as the representative for s 143 purposes.withdrew from interacting with the Police officers until around 11.35am when hechallenged Detective Sergeant Corner about the absence of a representative.[142] Regarding Mr Zhao, there is no evidence of Mr Zhao carrying out the role ofrepresentative. First, the evidence of Detective Holland (both in her written statementmade shortly after the search and oral evidence) describe the searches she undertookof Ms S's work station after the Police exchange with Mr Deliu in the conferenceroom. Detective Holland's written statement records that these later searchescommenced at around 11.21am, which is when she records "finding some papers" inrelation to one of the subject properties on the desk of Ms S's office. From then on,Detective Holland records the time and place where she found specific items. Forexample, at 11.40am she finds an item (an authority to disburse money dated 16December 2015 relevant to one of the conveyed properties), which she specificallydescribes as located, in the "top right drawer of [Ms S's] desk". Later at 11.50am shefinds another item (an authority to disburse money dated 9 November 2015 related toanother of the conveyed properties) which she finds in the top left drawer of Ms S'sdesk. This degree of detail is repeated in relation to six more items which she findsand seizes. The descriptions she has recorded all indicate she was the person doingthe active searching for specific documents, including by looking over the desk top ofMs S and going through the desk drawers. Such through searches are likely to havebrought her into contact with whatever else was located in Ms S's desk. This degreeof detail describing her movements contrasts with Detective Holland's earlier evidence(and that of Detective Senior Sergeant Chapman) of the searches before Mr Deliuarrived in which Mr Wu is described as present and with him being the person locatingitems that were then handed to Police and seized. Had a representative been presentduring the later searches I would have expected Detective Holland to record the degreeto which he was involved.[143] Detective Sergeant Corner gave evidence that she was present during the abovesearches by Detective Holland as was a Mr Preece (also associated with the Police).Detective Sergeant Corner confirmed in her evidence that Ms S's work station was inan open plan area outside Mr Deliu's office. She does not mention anyone fromAmicus Law being present in the search area. Moreover, whilst she did not identifywho she thought the representative was to Mr Deliu, her oral evidence confirms thatthe person she believed to be filling the representative role at this time was outside thesearch area:Q And then you responded to me, once you had a chance to look at thepaper [copy of s 143], you then responded to me that you, meaningthe police, have complied, as a representative of the lawyer waspresent, correct?A Correct.Q And when I asked you who that was, your response to me was to goand find that out myself?A Because from my memory, the representation was just in the officearound the corner.Q The representative, you mean?A Correct, yeah.Q Sorry, correct. Okay, but why did you just not tell me who it was, whyshould I go on an easter egg hunt?A Because possibly I was just frustrated and did not want to get(inaudible 12:26:55) interaction with you, and also –Q Okay, but what I'm asking you though is just, why, I mean why notjust tell me. On your evidence, I'm being unprofessional. If you justtell, I leave you alone. You get rid of the problem.A So the question was that, or it was a statement that there was norepresentation, correct?Q Yes.A And my answer was that there was a representative for Ms [Ms S]there.Q Yes, and I then said to you, well who?A And I've asked you to go and find that out, possibly because theperson wasn't there at the time, he was only just around the corner,and we went around there and you saw him. I can't tell you 100% whythat answer was like that. (emphasis added)[144] If the representative was "just around the corner" as Detective Sergeant Cornerwould have it, that person was not in the search area carrying out the role s 143provides for a representative.[145] When it was put to Detective Sergeant Corner that her failure to identify therepresentative to Mr Deliu could be explained by her not knowing who the person wasshe denied this was so. She insisted she knew at the time she engaged with Mr Deliuwho the person was. However, I do not find this aspect of her evidence to be plausible.[146] First, Detective Senior Sergeant Chapman could not recall whether, when hehanded over to Detective Sergeant Corner, he had told her who the representative was.Q And did you brief her that Mr Wu was the representative?A Well, by that stage we had had long discussions with, well, I had, withMr Zhao, who was principally, in my understanding, [Ms S's] boss,and that any documents – because by that stage we already had theitems in question and we – the other ones weren't forthcoming. So itwas a case of trying to obtain the remainder. That didn't happen. Andas I understand it, about that time we cancelled, we suspended thesearch altogether upon realising that the matter was being taken up atthe High Court.Q Sure, sure, but the [cessation] of the search occurs at about 11.54 amor later, but the handover to Detective Corner occurs at about 11.35,so all I'm asking you is when you've briefed her, by the time you werebriefing her, the search was still obviously ongoing, and all I'm askingis did you tell her, "Hey, look, if you need to know who therepresentative is, it's Mr Orison Wu," or, "It's Mr Franc Deliu," or,"It's Mr Richard Zhao," whatever. Did you touchA Yes, I didn't tell her that it was likely that we would get anythingfurther out of yourself, but that Mr Zhao and Mr Wu were stillamicable in their approach to us and so any questions around privilegeor any issues with the process, to speak to them.Q Putting aside the question of co-operation, did you tell her that eitherZhao or Wu fulfilled the role, the required role, of a representative inthe course of the search?A I don't recall my exact words but yes, I'm confident I would havecovered that off in a conversation with her, yes.Q Okay, and you would have told her that Wu is one representative?A I don't recall the exact nature of that conversation.Q All right, I'll just ask the question, I expect to know the answer, didyou tell her that Zhao was a representative, Mr Richard Zhao?A I can't recall. I – by that stage, having a fairly good conversation withMr Zhao I would suspect, I would suspect that at that stage I wouldhave said Mr Zhao is compliant, he's co-operative, he's – heunderstands what we are there to do, and he would be the person thatyou would go to insofar as a representative of not only the firm inwhich we were searching and also for [Ms S].[147] Secondly, Detective Sergeant Corner could not confirm that the handover wasthe time when she first learned who the representative was:Q but you can't say that he told you that Mr Wu was the representativewhen he briefed you, do I have that right?A Correct, yes.[148] Thirdly, Detective Sergeant Corner made very careful notes in her Policenotebook which record events at specific times. The notebook records the handoverbriefing and Detective Senior Sergeant Chapman's departure at 11:35 am. Nothing issaid about a representative under s 143. Then she records her encounter with Mr Deliuin relation to there being no representation by a lawyer as per s 143. At 11.54 am sherecords she contacted Detective Senior Sergeant Chapman about Mr Deliu going tothe High Court and it is at this time she records "represented by Orison Wu (PA)".This is after the exchange with Mr Deliu. When asked why the reference to Mr Wu asrepresentative was not recorded earlier when Mr Deliu raised the topic with her, otherthan accepting that would have been the better way of recording the issue she offeredno explanation for what she had done instead:Q at the time in your notes when the issue was first raised with youabout whether there is a representative or not, could you tell me whyyou didn't, at that point in time, after the note, "No representation oflawyer," put a dash and write, in fact, Orison Wu was therepresentative?A Yeah, well, in hindsight that possibly would have saved a lot of issuehere at the moment unfortunately, so yes.Q Well, would you accept that usually if an issue was raised aboutwhether there is representation or not by one party, and the other partyknows there is and is making a note of events, the time when youmight expect a reference to be made to the presence of a representativewould be at the time it's been first raised?A I accept that that that would be a better of way doing that, absolutely.[149] Fourthly, in the video-recorded exchange between Detective Sergeant Cornerand Mr Deliu, when she tells him to find out who the representative is, there is nothingto suggest she in any way indicated the representative was Mr Wu. The exchangebetween them is followed by Mr Deliu asking Mr Zhang39 if he was the representative,but there is no mention of Mr Wu. Accordingly, I have difficulty reconciling thetranscript of the video-recorded exchange with Detective Sergeant Corner's evidencethat "we went around there, and you saw him", if the person she was referencing wassupposed to be Mr Wu.[150] Fifthly, the impression I have from the evidence about the search that tookplace after the encounter between Detective Senior Sergeant Chapman and Mr Deliuis that Mr Wu was no longer actively participating as a representative. This seems tobe how Detective Senior Sergeant Chapman saw matters because in his view thearrival of Mr Zhao and Mr Deliu meant that they outranked Mr Wu and their presenceessentially relieved him of the representative role from then on:A So chronologically we seized the exhibits in the presence of OrisonWu, who in my mind had fulfilled the role of representative.Q Right, so at the time the documents were seized, there was only onerepresentative, and that was Mr Wu?A Yes, and it was some 30 minutes later, after we had seized thosedocuments, they'd been sealed up, placed into a box, we felt we hadfulfilled that requirement of section 143, that Mr Zhao and Mr Deliuarrived.A So up until the point that Mr Deliu and Mr Zhao arrive, we hadalready fulfilled, in my mind, the criteria under section 143 and thatOrison Wu was the representative.Q When you say you thought that Mr Deliu could be the representative,just so I can get it in a chronological order, did you think at the timeyou warned him for a potential obstruction of a police officerexecuting his duty?A That was a very quick – no. We, well, we had already fulfilled theobligations under section 143. He injected himself into it. We thoughtthat the warrant was going to continue and we were going topotentially find these other documents that were still outstanding, andso it was for that period that we term, while Orison is now beingoutranked, if you like, by the two senior members of the law firm, thatthey would then fulfil the criteria from that point on. Therepresentative in my mind isn't – I don't know whether we have toestablish whether it's one person and one person only. In my mind, itwas a representative of them and it's fairly quiet as to whether thatrole can change throughout the day. But by Mr Deliu and Mr Zhao39 The transcript refers to Daniel Zhang.arriving, as I say, in my mind they outranked Orison Wu and so,therefore, if we had continued a search of documents that they couldhave fulfilled that role for us.[151] Finally, apart from the subject evidence from Detective Sergeant Corner, thereis no evidence of Mr Wu being involved in any search after the interaction betweenDetective Senior Sergeant Chapman and Mr Deliu. Indeed, any references in evidenceto Mr Wu being actively involved in the search all relate back to what had initiallyoccurred before the search was paused to wait for Mr Zhao to arrive.[152] The above six factors suggest to me that by the time Detective Sergeant Cornerhad taken command of the search Mr Wu had effectively abandoned the role ofrepresentative. I am also satisfied that the first time Detective Sergeant Corner learnedthat Mr Wu was acting as representative was when she spoke on the telephone toDetective Senior Sergeant Chapman at 11.54am.Finding on whether there was a lawful search[153] The evidence shows that at best the Police officers were confused about whatthe role of a representative under s 143 entailed. They did not appear to understandthat privilege claims might in principle be made in relation to the file Amicus Lawheld for the conveyancing transaction, which they were investigating. This is becauseany communication held on those files that was for the purpose of giving or receivinglegal advice would have been open to a privilege claim. Insofar as any suchcommunications also advanced a fraudulent purpose the privilege could be lost, butwhether it was or not was something to be determined later and for the time beingthose type of communications were capable of attracting interim privilege claims.[154] Mr Wu occupied the representative role because Detective Senior SergeantChapman had decided Mr Wu was an appropriate person to be the representative unders 143,40 which was contrary to the requirements of the section.[155] After that time Detective Senior Sergeant Chapman's account of who occupiedthe role becomes confused. The best that can be understood from his account is that40 See [107] – [110] herein.he saw the role as fluid and capable of moving between Mr Wu, Mr Deliu andMr Zhao. However, I am satisfied on the balance of probabilities that once the searchrecommenced after the interaction between the Police officers and Mr Deliu no-onewas properly fulfilling the role of representative as required by s 143.[156] Detective Sergeant Corner maintains she believed during the time she was incommand of the search (which was after Detective Senior Sergeant Chapman had leftthe premises) the representative was Mr Wu. However, for the reasons given earlier,I do not accept her evidence. In any event, at the relevant time, when DetectiveSergeant Corner and Detective Holland were searching the work station of Ms S, byDetective Sergeant Corner's own evidence the representative was not present in thatroom (she said he was sitting around the corner).[157] The confusion regarding the role of the representative under s 143 and theabsence of contemporary records made by Detective Senior Sergeant Chapman orDetective Sergeant Corner about who was the representative indicate that this role wasnot given the respect it should have been at the time.[158] The findings I have reached lead me to conclude that the search on 31 August2016 was unlawful because it was a search that engaged s 143 and it was carried outin a manner that did not meet the requirements of s 143.[159] The requirement in s 143(2) for the lawyer acting for the clients whose filesare the subject of the search, or a representative of that lawyer, to be present is so thatthe lawyer or representative can take the opportunity under s 143(4) to make a claimfor privilege or interim privilege41 before the warrant is executed. The fact thatdocuments specified in a warrant do not themselves support a privilege claim (whichlargely was the case here42) seems to me to be irrelevant. The broad powers of searchavailable to the holder of the warrant including powers of compulsion mean that inprinciple a search under warrant of a lawyers' premises would permit Police officersto search through those premises looking for the documents they want to seize. In41 Section 146 of the Search and Surveillance Act provides for a process for interim privilege toenable disputed privilege claims to be resolved.42 See S v NZ Police [2017] NZHC 1060 at [55] and [59].doing so they could potentially encounter privileged documents, hence the need forthe protective provisions provided in s 143. Detective Senior Sergeant Chapman refersto this very possibility during the video-recorded exchange with Mr Deliu when hetells Mr Deliu that the Police are there with a search warrant; ideally, they want co-operation but "if not then we will just search".43 Further, also during this exchangeDetective Senior Sergeant Chapman said Police wanted the "full files in relation tothis sale and purchase" which went beyond the specific documents itemised in thesearch warrant (even some of them were generally described as "client files" relevantto the fraudulent conveyances) and opened up the possibility of Police accessing anymaterial on those files, which could have included material that was legally privileged.[160] No thought was seemingly given to how the SSA provisions relevant toprivileged material or information might apply to the circumstance where one or morelawyers on the premises are themselves suspects and information to inform the Policeon that subject is sought under warrant. The better approach may have been to resortto s 145, which is a more general wash-up provision covering circumstances that falloutside the typical circumstances that can give rise to privilege claims, and whichallows for directions to be sought from a Judge that can be tailored to the specificcircumstances.[161] The circumstances facing Police were legally complicated and difficult.However, that cannot relieve them of their obligations to execute search warrants in alawful manner.[162] The defendant submits that either Mr Zhao or Mr Deliu were the representativeunder s 143(2)(b). I reject that submissions for the reasons already given. In short itis not supported by the findings I have made on the evidence. The defendant says thatMr Zhao was present and acquiesced to the search continuing. That to me is differentfrom Mr Zhao assuming the role of representative. The searches that were undertakenwhile he was on the premises did not involve him. I have found that those searcheswere conducted without anyone from Amicus Law being present and therefore having43 See full transcript at [46] herein.the opportunity to first identify if the Police were likely to encounter legally privilegedcommunications/information.[163] I also reject the submission that Mr Deliu was the representative. The evidencedoes not support this. The defendant relies on Mr Deliu's parting words to DetectiveSenior Sergeant Chapman "carry on with the search" as consent to the search.However, in the context in which they were used they do not amount to consent norwas Mr Deliu in a position where he could consent to Police searching the file of aclient of Amicus Law.[164] The defendant's final submission on the lawfulness of the search is that s 146makes it clear that securing evidence does not constitute a search. The defendantargues that what happened here was no more than Police securing the documents.Thus, they did not need a representative in terms of s 143 to be present because theywere entitled to identify documents responsive to the warrant and otherwise simplysecure them. I find the submission disingenuous; it is factually and legally wrong.[165] The submission is factually wrong because the execution of the search didinvolve the Police officers searching through "things" (which is the word used in s146) at level 7. I accept that in relation to the items located by Mr Wu before Mr Deliuarrived the evidence is that Mr Wu located items which he handed to Police and thesewere then stored in envelopes with an identifier (exhibit one etc) and placed in theexhibit box. Detective Holland said she identified the documents, but she did notinspect them. So, those items were seized but not inspected.[166] However, during the last stage of the search (after the exchange with Mr Deliuin the conference room) Detective Holland's evidence is that this was of an open planwork area occupied by Ms S. I consider items that she seized then were inspected byher to some extent. This is revealed in the written statement she made shortly after thesearch. She specifically describes a number of items as found by herself, either onMs S's desk or in the drawers of Ms S's desk which Detective Holland went throughto look for items of interest. Further, two of the items Detective Holland records asfound by herself and taken from Ms S's desk were considered by Downs J to besusceptible to a legal privilege claim, albeit one that may have been lost by the fraudexception provided for in s 67 of the Evidence Act.44 The documents that Downs Jidentified in his judgment dated 19 May 2017 included a "new client form" and "anauthority to dispense money" dated 9 November 2015. Detective Holland records inher written statement that: (a) at "11.50 am in the top left drawer of [Ms S's] desk Ifound an authority to disburse money dated 9/11/2015"; and (b) at "11.51 am Ifound in the top left-hand drawer of [Ms S's] desk a new client form". These itemsthat Detective Holland describes as found by herself are consistent with the itemsdescribed by Downs J at [59] of his judgment. At [60] Downs J referred to thedocuments he had listed at [59] as being, "communications (in some sense) betweenMs S and her client in connection with the provision of legal services". The Judgeconsidered the question of whether legal privilege and s 67 of the Evidence Act appliedwas best dealt with by the District Court Judge in connection with the criminal chargesand accordingly he took the question of privilege no further. Justice Downs had anadvantage I do not have in that, with the consent of the parties, he viewed thedocuments that had been seized whereas I have not.[167] Justice Downs also described other items in [59] as being susceptible to claimsof legal privilege. However, I cannot marry those descriptions with the descriptionsgiven by Detective Holland in her written statement as there is not an exact match.[168] Whilst Downs J largely accepted the submission made to him that thedocuments did not attract privilege because they were Land Transfer Act documentsthat did not relate to the provision of legal advice the Judge also found the submissionto be "over broad".45 Thus, the seizure of legally privileged items cannot be excluded.Further, to seize these documents Detective Holland would first have to inspect themto see whether they were something that should be seized or not. That exercise wouldhave brought her into contact with the contents of any legally privileged material evenif only briefly.[169] More importantly, I consider that whether documents that have been searchedand seized under warrant are later shown to be largely outside the cover of legalprivilege, which is the case here, is no answer to an otherwise valid complaint that44 See Deliu v NZ Police [2017] NZHC 1060 at [59].45 Above at [55].when those documents were found by Police and taken from lawyers' premises thiswas done in a manner that did not comply with s 143 of the SSA.[170] I now turn to the legal aspect of the defendant's argument that securingdocuments is not searching them. Section 146, which provides for securing documentsuntil privilege claims are determined, refers to the various provisions in the SSAdealing with privileged material, including s 143. The defendant contends that s 146can operate in circumstances where s 143 would prevent a search, either because itsrequirements could not be fulfilled, or the items were privileged. It is difficult to seehow this could be so because the ability to secure and copy privileged things that isauthorised by s 146 implicitly requires some degree of inspection of the subject things,if only to identify them as something to be secured and copied. How this could bedone in relation to privileged things without the person responsible viewing theprivileged things albeit briefly is hard to imagine.46 The answer I consider lies in s147.[171] Subpart 5 of the SSA contains a cluster of provisions relevant to protectingprivileged "things". This cluster includes ss 136 to 147 and I consider they should notbe read in isolation. Section 147 outlines the steps persons wanting to claim privilegemust take. The section requires them to provide the person responsible for executingthe search warrant with a particularised list of the "things" for which privilege isclaimed as soon as practicable after being given the opportunity to claim privilege.This suggests to me that in the case of legal documents that may be privileged ss 143,146 and 147 would work together in a way that started first with the s 143representative having the opportunity before the search warrant was executed to claimprivilege or interim privilege, as is required by s 143(4). Then for that representativeto provide the holder of the search warrant with the particularised list as required by s147(a). Once the holder of the warrant has that list he or she could then identify thethings in a way that would minimise if not avoid the need for them to be inspected,and they could then be secured as is provided for in s 146(a). If those steps were46 Section 146(c) provides that the thing secured must not be searched. If it is a specific laptop forexample that is wanted under the warrant it could be secured without being searched. But wheredocuments are wanted it is difficult to see how the relevant documents can be identified withoutthe person who does so first inspecting them if only for the purpose of determining if they meetthe description of the documents that are being sought.followed in that order it would best ensure compliance with s 146(c), which stipulatesthat the thing secured must not be searched until the question of privilege has beendetermined.[172] Section 147 does contain references to past execution and past searches whichruns counter to the process I have outlined as appropriate for managing legallyprivileged documents. However, the statutory provisions dealing with privilege applyto all manner of things. Some things such as computer data could be secured in thesense of being downloaded or cloned without the need to inspect the content of thedata. Insofar as privileged things could be secured without the warrant holderinspecting the privileged content it would be possible to employ the provisions of s146 and 147 after the privileged things have been secured. However, with legaldocuments I cannot see how they could be identified as appropriate for seizure andthen be secured under s 146 without them first being inspected to some degree.Otherwise the gathering of any documents to be secured could be too broad or toonarrow. Accordingly, I consider the respective provisions in subpart 5 need to be readtogether in a way that best achieves their purpose for the particular search to beundertaken.[173] Further, the relationship between ss 143(4) and 147 suggests to me thatParliament did not contemplate that searches of lawyers' premises would ordinarily beconducted in the abrupt manner that occurred here with the lawyers being given nowarning a search was to happen. For privileged documents to be identified by thelawyer or representative before the warrant is executed (s 143(4) and for aparticularised list of those documents to be prepared (s 147(a)) this all requires noticeof and preparation before the proposed search. Where the lawyers are themselvessuspects and there is concern they may destroy documents if given notice of a searchthe better approach may be for directions to be sought from a Judge in line with ss 145and 147(b).4747 Even the appointment of a representative by the NZLS under s 143(3) may require somecommunication with the law firm that is the subject of the search in order to give the NZLSappointee sufficient opportunity to comply with the requirements of s 147(a).[174] It follows that I do not accept that for the type of search that happened here itwas legally possible for the Police to enter level 7 secure the documents they wereseeking by seizing them without those actions also legally constituting a search.[175] The defendant makes a further submission that is related to the lawfulness ofthe search. The submissions is that Mr Deliu cannot argue that in respect of the searchthat happened when Detective Sergeant Corner was present there was norepresentative present for the purpose of s 143(2)(b). In his submissions Mr Deliurelied on the video-recording, which does not show anyone present in that role. Thedefendant argues that it cannot be assumed the video-recording captured everyone inthe search area, and further that there was no cross-examination of Detective SergeantCorner along those lines. I reject this submission because it misses the point.[176] The evidence of the defendant establishes that no-one from Amicus Law wasin the search area with Detective Sergeant Corner and Detective Holland. This is clearto me on the balance of probabilities from the evidence of Detective Holland and theevidence of Detective Sergeant Corner to which I have already referred.48 The dutyunder s 92 of the Evidence Act to cross-examine the opposing party's witnesses onlyarises when there is a challenge to their evidence. Here the defendant's evidence neverwent so far as to say a representative was present during the searches conducted in thepresence of Detective Sergeant Corner so there was nothing for Mr Deliu to challengedirectly. Moreover, the inferences I have earlier drawn from Detective Holland andDetective Sergeant Corners' evidence as proof there was no representative present49are consistent with Mr Deliu's conduct as shown in the video recording. He is hardlylikely to have confronted Detective Sergeant Corner in the manner that he did andrepetitively questioned her about who the representative was if he could see someonefrom Amicus Law in the room that was being searched. Whilst the video-recordingmay not show a full view of the room that does not mean he did not have knowledgeof who was in the room. The room being searched was beside his own office wherehe had been sitting before confronting Detective Sergeant Corner and DetectiveHolland gave evidence she could see and hear him in his office from where she was;48 See [143] and [144] herein.49 See [155] – [157] herein.so he would have had much the same opportunity to take note of the movements ofthe persons in the room adjacent to where he was.[177] In sum, the nature of the search meant that s 143 of the SSA was engaged,requiring a representative to be present during the search so that he or she could makea claim of privilege if and when needed. The defendant contended that at various timeseither Mr Wu, Mr Zhao or Mr Deliu fulfilled this role. However, I have found thatnone of these persons could have fulfilled this role in a manner that was envisaged bythe drafters of s 143. I have also found that no representative of the NZLS was involvedin the search. As a result, the defendant failed to comply with s 143, rendering thesearch unlawful.Immunities[178] Sub-part 7 of the SSA (ss 164 to 168) provides immunities for personsobtaining or executing search warrants and the Crown as their employer. In thisproceeding the defendant has not pleaded the protection of any of the immunitiespresent in subpart 7.[179] To avail itself of the immunities in subpart 7 the defendant would need to pleadthe applicable relevant criteria which include acting in good faith in relation to theexecution of the search warrant and that the execution was carried out in a reasonablemanner. Neither criteria are pleaded or in any way put in issue by the defendant.Accordingly, I do not propose to consider if the immunities in subpart 7 apply.However, insofar as the presence or otherwise of good faith and/or execution of thesearch warrant in a reasonable manner feature in the pleaded causes of action thosetopics will be considered in that context.[180] Having dealt with preliminary factual matters and the lawfulness of the search,I will now proceed to address matters relating to Mr Deliu's causes of action,beginning with the claim of arbitrary detention pursuant to s 22 of the NZBORA.The authority to detain persons in a search area[181] Detective Senior Sergeant Chapman told Mr Deliu he was detained pursuantto the search warrant. The only specific statutory power of detention incidental topowers to search places is that provided by s 118 of the SSA. However, this powerdoes not cover the type of circumstances which caused Detective Senior SergeantChapman to issue the detention order to Mr Deliu.[182] Section 118(1) authorises a Police officer to detain a person for the purpose ofdetermining whether there is any connection between that person at the place and theobject of the search. Reasonable force may be used for the purpose of effecting andcontinuing any such detention.50 Section 118(3) provides that the detention of anyperson commences when the Police officer exercising the search power directs thatperson to remain at the place and the detention ends when that person is told that heor she is free to leave the place. These powers are typically included in search warrantsand they were expressed in the subject search warrant.[183] The defendant acknowledges that the power to detain under the warrant wasnot triggered by the circumstances that prevailed at the time. The defendant alsoacknowledges that any detention requires a specific power to authorise it.51 From herethe defendant then seemingly argues that: (a) a power to detain under a warrant andthe power to detain provided in s 118 are not necessarily the same; (b) there is anincidental power to detain when executing a search that was recognised by the Courtof Appeal in Moon v R; 52 (c) the statement by Detective Senior Sergeant Chapman toMr Deliu using the words "detained pursuant to this search warrant" are simply merewords of detention that do not amount to a detention; (d) if there was a detention itwas not arbitrary; and insofar as there was a detention it was token. On the other hand,Mr Deliu contends he was detained, and this detention satisfies the requisite elementsof arbitrary detention under the NZBORA; false imprisonment and misfeasance inpublic office.50 See s 118(4).51 See Entick v Carrington (1765) 19 St Tr 102952 Moon v R [2017] NZCA 56.[184] Whether there was an arbitrary detention is something that I shall address later.It is first appropriate to decide what if any legal power was being exercised whenDetective Senior Sergeant Chapman gave the detention order.[185] The SSA provides a statutory scheme for the issue of search warrants. Thesubject search warrant was issued under s 6 of the SSA. I consider that any detentionpower relevant to the execution of such a search warrant would need to be founded inthe legislation under which it was issued. Other than s 118 there is no specific powerto detain persons in a search area to be found in the SSA. There is s 116 which providesa power to exclude persons from the search area in certain circumstances, however,that power is not relied on here. Here, at cl 4.2 the warrant specifically referred to apower to detain however, as expressed, that power reflects the power to detain in s118. Further, I do not see how the language of the warrant could of itself create apower to detain that existed outside of s 118. No authority for such proposition wasput to me by the defendant.[186] The defendant contends that in evidence Detective Senior Sergeant Chapmansaid, while s 118 was a power he might have invoked it was not in fact a power heactually invoked. The difficulty this evidence presents for the defendant is that thereis no other power to detain that was available to Detective Senior Sergeant Chapman.[187] The defendant refers to a passage in Moon v R where the Court of Appealreferred to a line of cases that held Police restrictions on movements of an occupierduring the time his property is being searched under warrant do not without moreamount to a detention.53 First, there is no statement in Moon v R to suggest the Courtof Appeal had affirmed that line of cases. At [34] the Court of Appeal expressly statesthat those authorities did not apply to the circumstances in Moon v R.54[188] Secondly, when the cases referred to in Moon v R are considered it is clear theyconcerned searches under warrant before the SSA was enacted. When those cases are53 See Moon v R [2017] NZCA 56 at [33] citing R v P [1996] 3 NZLR 132 (CA) in which the Courtof Appeal referred to R v Nielsen CA53/93, 15 June 1993 and Police v Smith CA 196/93, 13 July1993.54 At [34] the Court of Appeal went on to note the line of cases had been criticised by RichardMahoney "The Concepts of 'Arrest' and 'detention'" in Paul Rishworth (ed) The New ZealandBill of Rights (Oxford university Press, Auckland, 2003) at 500.examined they show no more than the Court of Appeal recognising that the executionof a search warrant does not necessarily involve detention of the occupier of thepremises in question.55 In R v P the Police conducted a search under warrant of thedefendant's home and while this was happening a Police officer proceeded tointerview the defendant. He had been cautioned and had expressed a wish to see legalcounsel. Despite this expressed wish the interview proceeded and the defendant madestatements that were prejudicial to his defence. The issue was whether the defendantcould be said to have been under arrest at the time of the interview and therefore s 23of the NZBORA, relating to the rights of persons arrested or detained, was engagedand breached. No formal arrest had been made and the defendant was free to movearound his home. Later he agreed to accompany Police to the Police station. TheCourt of Appeal rejected the idea that because the home was then subject to a searchunder warrant that of itself could satisfy the element of restraint required to establishthere was an arrest; finding instead that whilst the appellant may have believed he wasnot free to go, viewed objectively nothing said or done by Police induced or justifiedthat conclusion. Accordingly, s 23 was not engaged. Similarly, in R v Nielsen the Courtof Appeal accepted that a right to search included the right to some measure ofsurveillance and control of the occupants of the premises searched; hence there wasno arbitrary detention.56 And in Police v Smith the Court of Appeal found the Policehad authority to control the movement of someone whose premises were beingsearched to the extent that was necessary to enable the search to be carried outeffectively; hence there was no arbitrary detention.57[189] However, insofar as R v P, R v Nielsen and R v Smith recognised incidentalpowers to curtail movement of persons present while a search under warrant wasundertaken, such powers are now overtaken by the SSA. This legislation providesspecific powers to control the movements of persons in search areas in the form of s116, which authorises the exclusion of persons from a search area and s 118 whichauthorises the detention of persons.58 Both provisions specify the circumstances whenthose powers can be exercised. If those circumstances are absent and, therefore, the55 See R v P [1996] 3 NZLR 132 (CA).56 See R v Nielsen CA53/93, 15 June 1993.57 Police v Smith CA 196/93, 13 July 1993.58 To a broad extent the statutory powers given by ss 116 and 118 reflect the incidental common lawpowers recognised in R v P; R v Neilsen; and Police v Smith.statutory powers are not engaged, I find it difficult to see how Police executing a searchwarrant could purport to control the movement of persons at a search by reliance oncommon law authority that pre-dates the SSA. The purposes of the SSA includemodernising the law of search and seizure and recognising the NZBORA, the PrivacyAct 1993 and the Evidence Act.59 The statutory scheme that Parliament has adoptedreflects its intention as to how an appropriate balance between these purposes is to beachieved. It would be inimical to achieving those purposes if case-law related toearlier warrant searches was permitted to broaden the statutory scheme for controllingthe movement of persons in a search area.[190] Accordingly, I am not persuaded that there is authority outside the scheme ofthe SSA to support a Police officer ordering an occupier who is present during awarrant search to be detained pursuant to the warrant. It follows that I find there wasno lawful basis for Detective Senior Sergeant Chapman to order the detention ofMr Deliu.Was there in fact a detention?[191] There remains the question of whether there was in fact a detention. Thedefendant contends that by merely telling Mr Deliu he was detained pursuant to thewarrant without more does not amount to a detention. As to proof there was nothingmore than this verbal statement, but the defendant also relies on the following:Mr Deliu was never physically restrained by Police; after he was told he was detainedhe briefly left the conference room to film from where documents already seized hadbeen taken from and then returned to the conference until he finally left it; no attemptwas made to stop Mr Deliu from taking this action, nor did Police later follow him tohis office or enter it.[192] The defendant focuses on the question of any detention being limited to theconference room, whereas Mr Deliu contends that the detention went beyond thatroom. He described his understanding at the time as being that once detained he couldnot leave the floor and certainly not the building. Whilst he accepted the Police never59 See s 5, Search and Surveillance Act 2012.entered his office while he was there, he queried how they could interfere with himonce there, given he was now doing nothing that would interfere with them.[193] At the time of the exchange with the Police officers in the conference roomMr Deliu had not turned his mind to the question of s 143. His view then was that hewas faced with what he took to be a "prima facie valid warrant" signed by a DistrictCourt Judge with the correct address so it seemed to him at the time the search was inaccordance with the warrant. He said he had very little to say about the warrant at thetime because he had very little time to reflect on it. It was only later when he returnedto his office and began searching the law relevant to the warrant that he realised therequirements of s 143. He had no memory of getting up and leaving his office severaltimes and could not confirm whether he had done so or not. He accepted that once hewas in his room the Police left him alone to work as he saw fit. Nonetheless hebelieved he was stopped from leaving the floor. His explanation on that topic was asfollows:A. Well, because under my thinking at the time, once I'm told that I'mdetained pursuant to a search warrant, I don't think that I have the rightto leave the floor, or if I do try and leave the floor it's at my own peril,that I then might be arrested for trying to escape my detention. So Ididn't, I had to calculate the balance, the risk versus reward, and forat least a half an hour at least, if not longer, I decided the risk wasn'tworth it. It was only when I – I did consider trying to leave, but Ifigured it wasn't worth it because I already had problems with the LawSociety, I didn't need to be arrested by the police for trying to escape.I didn't need an additional problem like that. But when I learned thatMr Chapman wasn't around any longer, that's when my state of mindchanged, did a complete 180, because I figured if the person who toldme I was detained wasn't there any more, then it's pretty safe to saythat I'm not detained any more.Q. So you made a decision not to leave in the first instance, and a decisionto leave in the second?A. Yes, yes, definitely.Q. And the only thing that the police said or did that you rely upon forfounding the detention is the use of the words, "You are detained"?A. Well, no, to be fair, that's out of context. They first warned me for acriminal offence. They then read me the rights that are read to anarrested person, and then they said I was detained, and then when Iasked them for confirmation repeatedly, whether I'm detained, theyconfirmed that I was detained.[194] When it was put to him that at the time he did not believe he was detained asis shown in the video-recording by his words "if I am detained we will come back tothat" he rejected the suggestion detention was an open question in his mind. He saidhe did not remember using the word "if" but if he had done it would have been on thebasis "if I am lawfully detained".[195] From Mr Deliu's perspective there were Police officers on the premises wherehe carried out his legal practice; the terms of the warrant did not limit its applicationto the area on level 7 occupied by Amicus Law and it was capable of being read asapplicable to all of level 7, which would have included Justitia Chambers; fromMr Deliu's enquiries of the Police officers as to the offices they had entered for thepurpose of the search it would have been apparent to him that, inter alia, they hadentered an office used by Justitia Chambers (this was where Mr Koo's desk wassituated and was from where Mr Wu located certain documents, which he gave toDetective Holland).60 The search had commenced in his absence, despite the intrusioninto the space of Justitia Chambers. He no doubt was upset and angry, as is shown inthe video recording, he wanted to find out what the Police officers had seized, and hewanted to do it in a manner in which he chose with whom he spoke. So, it isunderstandable that he would have been seeking to exert some form of control overwhat would have appeared to him to be an intrusive search. The situation would nothave been helped by Detective Senior Sergeant Chapman reading Mr Deliu his rightsunder the NZBORA, which most lawyers would associate with Police treating thetarget as a suspect, or threatening to arrest Mr Deliu for obstruction. Nonetheless,Mr Deliu sensibly realised that to have pushed matters further with Police could haveresulted in a more adverse outcome than detention, which is correct. Detective SeniorSergeant Chapman essentially confirmed this with his evidence that in hindsight heshould have moved straight to an arrest. This evidence indicates to me that hadMr Deliu continued with the type of conduct that triggered the detention order it islikely that he would have been arrested.[196] Detective Senior Sergeant Chapman said in evidence that making the detentionorder was one way of taking back control of a situation into which Mr Deliu was60 See [33] herein.intruding and seeking to control.61 He considered once he told Mr Deliu he wasdetained pursuant to the warrant this action caused Mr Deliu to desist from the conductDetective Senior Sergeant Chapman wanted brought to an end.62 Following this, theinteraction with the Police officers in the conference room continued for two or threeminutes more, but in a more restrained fashion and one that Detective Senior SergeantChapman was prepared to tolerate. This was made clear by him in evidence when hesaid the detention order was dual purpose (a) Mr Deliu needed a warning for cominginto the room and trying to control a Police action; and (b) Detective Senior SergeantChapman wanted to have a measure of control via detention so that if Mr Deliu leftthe room and tried "to take control of all his people that's the point at which I sayno actually you know what, you're detained".63 Moreover, on two occasions whengiving evidence Detective Senior Sergeant Chapman said his hindsight view was thathe should have just arrested Mr Deliu for obstruction. All of which indicates to methat the intended effect of the detention order went beyond the conference room andhad Mr Deliu left that room and continued to act in a way Detective Senior SergeantChapman regarded as intrusive on the Police control of the search then Mr Deliu wouldhave been arrested.[197] Mr Deliu's evidence is that he took the detention order seriously. Heconsidered the best approach was to accept the situation for the moment and so heretired to his office.64 Under cross-examination he said he would have continued tochallenge the way the search was being executed had he not been told he was detained.I have no reason to doubt Mr Deliu's evidence. I find it plausible. Further, the impactof the detention order is confirmed by Mr Deliu's conduct at the time, which DetectiveSenior Sergeant Chapman described in evidence as being responsive to the detentionorder. It was sufficiently responsive to lead Detective Senior Sergeant Chapman toconclude that he had regained control of the situation. Had Mr Deliu not taken thedetention order seriously or thought he was immune to it I would have expected himto maintain the stance and demeanour that had caused Detective Sergeant Chapman tomake the order.61 See [56] – [58] herein.62 See above, particularly the transcript set out therein.63 See above.64 See [47] herein.[198] The defendant relies on Mr Deliu's comment to Detective Sergeant Chapmanat the time "Okay, okay if I'm detained we're gonna get to that later" as demonstratingthat Mr Deliu did not believe he was detained. I reject that submission. The statementis general and can support more than one inference. Taken out of context it could beread as an expression of doubt about being detained. On the other hand, read in contextwith everything else that was said and done that day it could have been a short handreference to if this is a legal detention (which I doubt) we will see about that later.[199] Looked at overall, I find the evidence that Mr Deliu believed he was beingdetained by Police order to be convincing and sufficient to satisfy me to the civilstandard of proof that he genuinely believed that was the effect of the detention order,and that adverse consequences for him would follow should he ignore the order. I amalso satisfied that the order had a restraining effect on Mr Deliu's liberty because itcaused him to cease behaving in the fashion he had chosen to behave towards Policeon his premises, and its effect was to cause him to withdraw to his office.[200] The demeanour of Detective Senior Sergeant Chapman as shown in the video-recording at the time he told Mr Deliu he was detained is stern and serious. It suggestshe will not brook opposition. He has all the appearance of someone seeking tomaintain or to regain control of a situation. There is nothing light handed or casual inthe encounter. When the detention is first queried Detective Senior Sergeant Chapmanconfirms it. Also, the detention is said to be made pursuant to the warrant, whichcloaks it with authority. Viewed objectively, I consider the reasonable bystanderwould conclude that when Detective Senior Sergeant told Mr Deliu he was detainedpursuant to the warrant, the Police officer intended there would be a detention, thesewords were meant to have effect and they would be enforced if necessary.[201] Given the detention order had the effect of restraining Mr Deliu from conducthe was expressing on his work premises I am satisfied there was a detention in fact.This is because Mr Deliu was no longer free to act as he wanted to act on thosepremises. The next question is how long was Mr Deliu detained.Duration of the detention[202] In the statement of claim Mr Deliu pleads that the detention was for at least 27minutes and up to a maximum of 42 minutes. He alleges the detention commenced at11.03am, which is consistent with the notebook record Detective Senior SergeantChapman made of when he and Mr Deliu commenced interacting. The detention orderwas not given until some moments later. I am satisfied on the balance of probabilitiesthat it was given at approximately 11.05am.65[203] The detention commenced when Detective Senior Sergeant Chapman gave thedetention order. His evidence is consistent with Mr Deliu responding while in theconference room to the controlling effect of that order. Accordingly, I am satisfied onthe balance of probabilities that Mr Deliu was detained while in the conference room.[204] Mr Deliu remained in the conference room for a few minutes then he left andwent to his office. Once Mr Deliu went to his office there were occasions accordingto Detective Holland when she saw him leave the office to interact with other personson the floor and then returned to the office. This period, up to the time when Mr Deliuconfronted Detective Sergeant Corner seems to me to be the most difficult time toascertain whether there was a detention or not.[205] The purpose of the detention order was to give Police an element of controlover Mr Deliu both inside and outside the conference room, which can be seen fromDetective Senior Sergeant Chapman's evidence regarding the dual purpose of theorder.66 Detective Senior Sergeant Chapman also referred to how Mr Deliu was freeto leave the conference room and to go to his office, which in his view meant anydetention was for a few seconds only and no more than a "technical detention".However, I regard this to be an ex post facto explanation of no more than what actuallyhappened after the making of the detention order. I do not believe the explanation. Itis inconsistent with the overall impression I have gained from the direct andcircumstantial evidence relevant to the search. Also, I do not understand this degree65 The Court transcribers have noted in the notes of evidence where certain parts of the transcript ofthe interaction are inaudible and with those parts the transcribers have given the time so thatanyone wanting to hear the inaudible passages can easily locate them. Working from those timesit appears to me that the detention order is given approximately two minutes into the interaction.66 See [58] herein.of movement to be inconsistent with the purported legal restraint imposed by thedetention order. There is a difference between a legal occupant of level 7 physicallymoving from one part to another part of level 7 while a Police search is underway andthat occupant being at liberty to do whatever he might otherwise have wanted to do atthe time on this private property. Mr Deliu said as much under cross-examination.[206] Mr Deliu accepted under cross-examination that while he was in his office noPolice officer entered the room or interfered with him in any way. He also acceptedthat while in his office he had freely accessed his computer and researched the searchwarrant provisions of the SSA. This seems to be when he first considered s 143 andits impact on the search that was taking place. It was put to him that this degree offreedom meant he was not detained, which he rejected on the basis had the detentionorder not been made he would have been more actively engaged in what washappening on level 7 at the time:Q because actually you were freely doing [and] acting as youotherwise would have done, namely read the warrant, research it andwork out what you were going to do next?A No, no, that's absolutely incorrect. For example, if I hadn't been toldthat I was detained, and if there wasn't a search warrant going on, Iwould have first of all (inaudible 11:30:31) I might have gone to theplace where they were searching the documents and see what washappening, so there was a – I wasn't free to do whatever I wanted asI would ordinarily be able to do in my office on a normal day.Q Your movements in the office were not restricted in any way, werethey?A Oh, in my mind they were. I certainly didn't think that I couldapproach the police where they were searching and stop them fromsearching, for example.[207] When asked if Police had stopped him from moving around level 7 Mr Deliugave one example, which was Detective Sergeant Corner stopping him from enteringMs S's office:Q At any point did the police restrict you from moving around theoffice?A Well, for example, when I approached Ms Corner, you would haveseen in the video, I didn't enter Ms [S's] office where the search wasactually taking place, and I did that consciously, staying outside ofMs Corner, and actually Ms Corner did block my entrance intoMs [S's] office and in fact put a paper in my face. So that would beone example.Q So just so that I'm clear, you say that Ms Corner stopped you fromentering the office and that is an example of the police restraining yourmovements around the office?A Yes. I would say that.[208] Mr Deliu provided the following analogy:Q. Because when you said to me just before you otherwise would havebeen going around to see what they were doing, the fact of the matterwas there was no restriction on you doing that, was there?A. Well, in my mind, there was. That's exactly that point. If – I thinkthe analogy that I would give would be that if the police are searchingmy house, and they tell me that I'm detained in my living room, or mydownstairs floor, well, then that means I can't go upstairs. There arecertain areas that I'm not allowed to go, but that doesn't mean that Ican only sit on my couch on one pillow and not move from there.[209] I accept Mr Deliu's evidence that he felt constrained by the detention after heleft the conference room and he did not want to find himself being arrested, whichwould have been the likely outcome had he continued to push against the boundariesof the detention. Indeed, Detective Senior Sergeant Chapman said on more than oneoccasion in evidence that in hindsight he considered he should have arrested Mr Deliuto ensure he was under Police control. I find Mr Deliu's evidence credible. He didnot embellish his evidence and readily made concessions when it was appropriate forhim to do so. Mr Deliu's evidence is consistent with his conduct after the detentionorder was made, when he showed more restraint than he had in the earlier interactionswith Police. I am also satisfied that the Police conduct would have induced anyreasonable person in Mr Deliu's position at that time to view matters as he did.[210] Given the acknowledged purpose of the detention order was to control conductof Mr Deliu both inside and outside the conference room, which means action contraryto the order outside the conference room could have had adverse consequences forMr Deliu from Police, I am satisfied that the detention order remained in effect afterMr Deliu left the conference room. It is clear to me from Detective Senior SergeantChapman's evidence that had Mr Deliu then behaved in a way the Police consideredto be disruptive of the search the additional step of arrest or the use of force to effectand continue the detention, may have occurred. Further this understanding isconsistent with the intended legal effect of a detention order because s 118(3) of theSSA expressly provides that once made the order remains alive until the personaffected by it is told by Police that he or she is free to leave the place which is beingsearched. Accordingly, I am satisfied on the balance of probabilities that while in hisoffice and up to the time when he confronted Detective Sergeant Corner Mr Deliu wasunder detention.[211] When Mr Deliu confronted Detective Sergeant Corner and challenged herabout non-compliance with s 143 I consider that this conduct brought the detention toan end. Whilst s 118(3) provides that a detention ends once a Police officer tells thesubject he or she is free to leave, I consider that an unlawful detention can also beended by the subject through self-help. If someone who is unlawfully detainedescapes, while that does not negate what has earlier occurred, the act of escape bringsthe unlawful detention to an end. Mr Deliu recognises this because he acknowledgesthat his departure for the High Court brought the detention to an end. However, Iconsider such a detention can also be ended by other behaviour that evidences thesubject disregarding the detention.[212] In this case I consider that when Mr Deliu interacted with Detective SergeantCorner his conduct reveals he was once again intervening in and therefore interferingwith the Police search. This conduct shows him acting in a manner that is notrestrained by the detention order. By then he had a copy of s 143 and he was confidentthat this was an unlawful search that he could properly challenge. I find, therefore,that the detention ended somewhere between 11.35 am and 11.40 am, which is wherein time I place the commencement of the interaction with Detective Sergeant Corner.[213] Mr Deliu's encounter with Detective Sergeant Corner happened after DetectiveSenior Sergeant Chapman had left level 7, which was at 11.30am. So, I expect theencounter with Detective Sergeant Corner happened sometime after 11.30am andbefore 11.45 am when Mr Deliu left the premises. Accordingly, I am satisfied on thebalance of probabilities that at sometime around 11.35am but before 11.45am thedetention ended.[214] The period between Mr Deliu receiving the direction he was detained in theconference room and his encounter with Detective Sergeant Corner seems to me tohave been a period of between no more than 30 to 35 minutes and no less than20 minutes. This is the period in which he was subject to what I have already foundto be an unlawful detention.Aftermath[215] Shortly after the exchange with Mr Deliu Detective Sergeant Corner contactedDetective Senior Sergeant Chapman. Detective Sergeant Corner had read the copy ofs 143 she was given by Mr Deliu and she informed Detective Senior SergeantChapman that Mr Deliu was going to the High Court to challenge the search warrant.A decision to suspend the search was made. At much the same time Mr Zhangapproached Detective Sergeant Corner with a cell phone and advised her the HighCourt was on the line. She then spoke with the High Court. Later that day there wasa hearing in the High Court. This was followed by a consent order which enabled thePolice to obtain the remaining documents they sought.Was there an arbitrary detention under the NZBORA?[216] For the reasons already given I am satisfied Mr Deliu was in fact detained inthe sense his liberty to do as he wished on premises he occupied was constrained byPolice officers conducting an unlawful search of those premises. I am also satisfiedthe Police officers had no authority to interfere with him in that way. The next questionis whether this circumstance constitutes an arbitrary detention under s 22 of theNZBORA.[217] Typically, an unlawful detention will be an arbitrary detention for the purposesof s 22 of the NZBORA.67 The case-law acknowledges there may be cases where anunlawful arrest or detention and an arbitrary arrest or detention are not viewed as oneand the same. However, the examples discussed are lawful arrests or detentions thatnonetheless are regarded as being so unnecessary and unreasonable that they can still67 See R v Goodwin (No 2) [1993] 2 NZLR 390 (CA) at 394; Manga v Attorney-General [2000]2 NZLR 65 (HC) at [37]-[39] and [46]; Niao v Attorney-General (1998) 5 HRNZ 269 (HC) at290-291.be characterised as arbitrary.68 In R v Goodwin (no 2) the Court of Appeal also leftopen the possibility of an unlawful detention not being an arbitrary detention, butqualified that occasion to circumstances where the unlawful detention was for thesafety of the detainee or other persons or circumstances where an arrest is made an theofficer honestly but mistakenly believes he or she has reasonable and probable groundsto make the arrest but the Court finds the facts fall just short of establishing thatjustification.69[218] Here the defendant has not raised a defence based on justification of unlawfuldetention that would bring the detention here within the exception that was recognisedas a possibility in R v Goodwin (no 2). In R v M Blanchard J found that once adetention was established the Crown then had the burden of proving on the balance ofprobabilities that the detention was not arbitrary.70 I consider that in accordance withthe principle expressed in R v M had the defendant wanted to rely on the exceptionalcircumstances ground addressed in R v Goodwin (no 2) then the defendant should haveexpressly pleaded this ground.[219] There remains one further issue and that is whether the nature of the constraintI have identified is enough to amount to a detention under s 22 of the NZBORA. Herethe defendant argues there has been no more than a temporary check on Mr Deliu'sliberty. Whilst this was said in the context of an argument that the detention did notextend beyond the conference room it is important to consider the submission in thecontext of the facts as I have found them to be: namely, the detention lasted for longerthan that, but no more than 30 to 35 minutes.[220] In Everitt v Attorney-General the Court of Appeal found that a detention unders 22 of the NZBORA required more than a "temporary check on a citizen's liberty"and stated:7168 See Niao v Attorney-General at 290-291 where the High Court refers to van Alpen v TheNetherlands (1990-1992 NZBORR 326) and Latimer v R (1997) 112 CCC (3d) 193.69 See R v Goodwin (no 2) [1993] 2 NZLR 390 at 394.70 R v M [1995] 1 NZLR 242 (HC) at 247. To like effect is Niao v Police (1998) 5 HRNZ 269 (HC)at 291 where in the context of finding that the unlawful arrest in that case was in breach of s 22 ofNew Zealand Bill of Rights Act 1990, Randerson J found that it was followed by an unlawfuldetention with the burden being on Police to show the detention was justified.71 Everitt v Attorney-General [2002] 1 NZLR 82 (CA).As was said in Police v Smith and Herewini what beyond that constitutes asufficient restraint on liberty to come within the guarantee of s 22 of the[NZBORA] against arbitrary detention, will depend on the circumstances ofthe case and will involve consideration of the nature, purpose, extent andduration of the any constraint.(citations omitted).[221] It is helpful to put the above comment in context. In Everitt the Court ofAppeal rejected the argument that a courier cyclist, who had been stopped by Policefor running a red light, had during Police questioning for this traffic offence beendetained when one of the Police officers inspected his bicycle. The Court found thatthe inspection was by consent and further that part of Police work involved makinginquiries of citizens without there necessarily being a power to demand compliance.The brief time a citizen spent responding to an inquiry of that type could not bedescribed as an unlawful detention. This is nothing like what happened here.[222] In Police v Smith and Herewini the Court of Appeal was considering s 23 ofthe NZBORA and whether the application of the power in s 58D of the Transport Act1968 (being a power to take a blood sample for alcohol testing purposes from someonein hospital) could be a detention pursuant to an enactment.72 There was no power tocompel the provision of the requested sample. The majority judgments which founds 23 was not engaged focussed on the particular facts before the Court. Richardson Jfound that the degree of restraint on liberty associated with simply asking someone ina hospital or surgery setting to provide a blood sample was of a temporary nature andcompliance with the demand involved a minimal restraint, particularly as there was nopower to compel the provision of this sample. The only remedy for a refusal to acedeto the request was to charge the defendant with failing to provide a blood sample. Insuch circumstances submission to the taking of a blood sample was not "a detentionunder an enactment attracting the protections of s 23(1)".73 Hardie Boys J based hisdecision on the requirements of s 23 and he specifically left open the question ofwhether arbitrary detention under s 22 would generate the same response:74Whatever may be the proper meaning of "detained" in s 22, in s 23 theexpression "detained under any enactment" is one part of a concept of which72 Police v Smith and Herewini [1994] 2 NZLR 306 (CA).73 At 317.74 At 327."arrested" is the other. It cannot on a fair reading be treated simply as ageneralisation, enlarging upon and including the particular sense of "arrested".In R v Goodwin the majority agreed that arrest involves a restraint on libertyconveyed by an act or words. So I think must "detained". The difference isone of purpose, and of authority valid or purported.(citations omitted).McKay J found that whether there is a detention under s 23 is a matter of fact anddegree. In his view to request a person already in hospital to provide a blood samplewhen there was no power to compel such provision was not a detention for the purposeof s 23.75 This is also nothing like what happened here.[223] I consider the facts of Everitt and of Smith and Herewini to be significantlydifferent from the present facts. In those cases, the defendants were occupying publicspace (in one instance a public footpath the other being in a public hospital), hereMr Deliu was on private premises from which he conducted his barrister's practice.In the other cases the Police requests on which the arguments for a detention werebased could not be the subject of compulsion and the requests were not presented onthat basis. Here Mr Deliu was specifically told twice by a Police officer he wasdetained, authority for the detention (being pursuant to a warrant) was stated to himand the surrounding circumstances such as being told he was being obstructive andgiven a NZBORA caution would also have given Mr Deliu the impression thedetention had the force of law behind it. The periods of detention in the other caseswere brief in the sense of being no more than a few minutes. Here the detention lastedfor at least 20 minutes and up to between 30 to 35 minutes.[224] However, I acknowledge that here the effect of the detention did not go so faras to constrain Mr Deliu 100 per cent and there are no cases where the degree ofconstraint is analogous to what occurred here. For this reason, I have found it helpfulto identify the degree of constraint the detention order in fact imposed on Mr Deliubefore considering whether it constitutes detention for the purpose of s 22.76[225] The defendant submits that apart from what Detective Senior SergeantChapman said to Mr Deliu in the conference room the best that can be said for75 At 329.76 See discussion at [205]–214].Mr Deliu's case is that he subjectively thought he was being detained and perhaps thatthe risk was not worth challenging this detention. The defendant also contends thatMr Deliu at no point raised any issue about a supposed on-going detention.Accordingly, the defendant submits there is no evidence that Detective SeniorSergeant Chapman's words, "you are detained" had any practical impact on Mr Deliuafter they dissuaded him from interfering with the exhibits seized. He moved aboutfreely, he did just what he would have done anyway and when he was ready to leavehe did so. He did not accept detention, but in fact treated it as an open question. Ihave already rejected those submissions in the context of finding there was in fact adetention. However, they will be re-visited for the purpose of considering whetherthere was the type of detention that s 22 protects against.[226] The detention order put Mr Deliu on notice that he was not to intrude into thesearch. Had he continued to do so consequences would have followed. I have nodoubt of that. But he stopped the conduct which had prompted the detention order.Once he refrained from intruding on the search (as viewed by Detective SeniorSergeant Chapman) there was no need to take other active steps to confine or curtailMr Deliu's conduct. This is what is to be expected when Police make a detention orderand the subject responds to it. By analogy s 118 is helpful; it provides that once thedetention order under that section is made it remains in force until a Police officer tellsthe subject he or she is free to go. This indicates that Parliament expected that once adetention order was made if the subject was responsive no further action would berequired, and this would continue until the detention was ended by the Police officerinforming the subject. Further action from Police, such as restraint or otherinterference, would only be expected if the subject challenged the detention order.That potential eventuality is covered in s 118(4), which provides for use of reasonableforce to effect or continue a detention. But, when the subject is compliant in the sensethe subject responds to the order in a manner that satisfies the Police the likely outcomewould be no further engagement between Police and subject until the time comes toend the detention.[227] In short, if a citizen is told he or she is detained pursuant to the statutory powers 118 provides and the citizen then stays in the general search area without intrudingon the searches by Police in any way but otherwise does things to keep him or herselfoccupied, I do not regard that in law to be no more than the citizen misguidedlythinking he or she is detained. Rather, it is conduct that is responsive to and compliantwith legal detention or as in this case the purported detention under warrant. It is thetype of conduct to be expected from someone who believes he or she is being legallydetained because he or she has earlier been subject to the making of that demand by aPolice officer.[228] In R v M77 Blanchard J found that the test for arbitrary detention under s 22was whether the defendant had a reasonably held belief induced by Police conduct thathe was not free to leave. The test was later approved by the Court of Appeal in Everittv Attorney-General.78 I am satisfied for reasons outlined earlier79 on the balance ofprobabilities that Mr Deliu had a reasonably held belief he was detained and that thisbelief was induced by the conduct of the Police, in particular Detective SeniorSergeant Chapman.[229] In addition, the defendant contends that in the conference room Mr Deliu wasbeing obstructive and so he was susceptible to arrest and detention. Further, the powerof detention under s 118 could have been used and that as a result there can be nosubstantial deprivation of liberty if Mr Deliu was susceptible to detention in any event.I reject these submissions. Mr Deliu was not legally susceptible to arrest forobstruction because as I have found the search warrant was unlawfully executed.80The power of detention under s 118 could not have been used. The defendant hasacknowledged this was not a detention under s 118. More importantly, thecircumstances that engage s 118 were not present.8177 R v M [1995] 1 NZLR 242 (HC) at 244.78 Everitt v Attorney-General [2002] 1 NZLR 82 at 87.79 See [191]-[215].80 See discussion in Williams v Police [1981] 1 NZLR 108 (HC) where unlawful conduct by Policein detaining Mr Williams which led to him assaulting the Police officers could not be assaultscommitted in the execution of their duty because they had no authority to detain him in the mannerthey had attempted.81 Section 118(1) permits the making of a detention order to a person who is at the place at thecommencement of the search or arrives at the place during the search in circumstances where thePolice want to determine whether there is any connection between that person and the object ofthe search. Here the Police knew Mr Deliu was counsel acting for Ms S and an occupier of level 7,the area being searched. Detective Senior Sergeant Chapman confirmed in evidence that Mr Deliuwas not a suspect. Accordingly, Mr Deliu did not fit the circumstances permitting the making ofan order under s 118.[230] The defendant also relies on the SSA's provisions and the common lawauthorities for when restrictions on freedom of movement can occur to allow theeffective execution of a warrant.82 I have already explained why I consider thedetention went beyond the conference room. And I have already found that thecommon law authorities which recognised incidental powers to the execution of asearch warrant have no application to a search under a warrant issued under s 6 of theSSA.83 Apart from s 118 the only other relevant provision of the SSA is s 116(1)(b)which provides a power to exclude persons from the search area or give such otherreasonable direction if the person carrying out the search believes the person willobstruct or hinder the exercise of any power under the subsection. It may have beenpossible for Police to exclude Mr Deliu from parts of level 7. However, exclusionfrom a search area would have had less impact on liberty in my view than directingMr Deliu that he was being detained under the warrant, which is a more intrusivecontrol. Further the reference to other reasonable direction in s 116 does not in viewpermit the making of a detention order. Such order is something that Parliament hasspecifically provided for in s 118. I do not consider Parliament intended that otherforms of detention order could be given under the auspices of being a reasonabledirection pursuant to s 116(1)(b). The fact that Parliament has made specific provisionin s 118 for making detention orders and defined the circumstances when such orderscan be made and how they end indicates to me the higher importance Parliament placeson ensuring that the exercise of such powers is carefully provided for and regulated.[231] The detention which in fact occurred was the result of an unlawful detentionorder made in the context of an unlawful Police search of lawyers' premises. Theillegality of the search potentially put at risk the protection of legally privileged"things". In sum, a lawyer (Mr Deliu) who occupied part of the general area wherethe search was happening attempted to query the search and seizure and was stoppedfrom doing so for a period of between 20 minutes and 30-35 minutes by the makingof the unlawful detention order. For that period of time his liberty to move at large onthe floor where his legal premises were situated was constrained. Although no Policeofficer interfered with him after he was given the detention order, this was in82 See [187]- [190] herein for discussion of as 116 of the SSA and the common law predating thisprovision that permit restriction of movement during the execution of a search warrant.83 See [190] herein.circumstances where his conduct was compliant and therefore unlikely to triggerfurther interference by Police. Had Mr Deliu acted in a way the Police wantedconstrained I have no doubt he would have been arrested. Insofar as Detective SeniorSergeant Chapman gave evidence to suggest the contrary I do not believe his evidence.It is not consistent with the findings I have reached. I am satisfied that what happenedto Mr Deliu constituted an arbitrary detention under s 22 of the NZBORA.Was there a false imprisonment?[232] It is well settled that the tort of false imprisonment requires total restraint inthe sense all movement in all directions is prevented.84 The evidence does notestablish this requirement. This is enough to prevent Mr Deliu from succeeding onthis claim. Accordingly, the claim is dismissed and judgment on it entered for thedefendant.Was there misfeasance in public office?[233] Misfeasance in public office requires a public officer to have acted unlawfullyand maliciously, thereby causing loss to the defendant. Malice can take the form ofactual malice (spite or ill-will), or presumed malice which takes the form of eitherknowingly acting in an unlawful manner either by intentionally doing so or doing sowith reckless disregard for whether the impugned action is lawful and will result inharm to the defendant.85 The test for presumed malice is:86(a) Did the tortfeasor know or is he/she presumed to have known (becausehe/she showed reckless indifference as to whether) he/she was actingoutside the limits of his/her power;(b) Did the tortfeasor know or is he/she presumed to have known (becausehe/she showed reckless indifference as to whether) the unlawfulconduct was likely to harm the plaintiff as an individual or a memberof a class;84 See Blundell v Attorney General [1968] NZLR 341 (CA) at 357; and Wright v Bhosale [2015]NZHC 3367, [2016] NZAR 335 (HC) at [51].85 Niao v Attorney-General (1998) 5 HRNZ 269 (HC) at 292.86 See above.(c) Did the tortfeasor's conduct in fact cause the plaintiff qualifying harm.Each arm of the test must be met before the tort can be made out on the facts.[234] Because misfeasance in public office is a tort its commission is necessarilyperformed by one or more persons, and the employer of those persons can bevicariously liable. Here, the defendant (New Zealand Police) is sued as employer ofthe Police officers concerned. I consider that before the defendant can be liableMr Deliu must prove the commission of the tort's elements, including the requisitemalice, in at least one of the Police officers involved. Vicarious liability cannot beproved through relying on a composite form of proof which finds some elements ofthe tort present in each of the Police officers.[235] Mr Deliu alleges that misfeasance in public office was committed on fourseparate occasions. The first occasion was when Detective Holland applied for awarrant and in the application, she allegedly gave the District Court an assurance thats 143 would be complied with when she had no intention of doing so.[236] There is no evidence to suggest that at the time she applied for the warrantDetective Holland had no intention of complying with s 143. The evidence is that sheapplied for the warrant seven days before the search and she said she approached theNZLS for the appointment of a representative a couple of days before the search.87Thus, the evidence is consistent with her having no knowledge at the time she appliedfor the warrant that the NZLS would not appoint a representative. The evidence isalso consistent with her attempting to ensure compliance with s 143(3) as can be seenfrom her attempt before the search to engage with the NZLS for the appointment of arepresentative. The evidence also shows the Police attended level 7 on the morningof the search with the intention that Ms S would be present and they in fact delayedthe search until Mr Wu arrived, both of whom, in their eyes, could have fulfilled therole of representative under s 143. This evidence is not consistent with DetectiveHolland either knowing, or being recklessly indifferent to whether there would benoncompliance with s 143 at the time she applied for the warrant. Without evidenceto prove Detective Holland knew or was recklessly indifferent at the time she applied87 See [13] and [15] herein.for the warrant that the Police search would proceed without either Ms S or a properlyappointed representative being present the malice requirement cannot be satisfied. Forthis reason alone, this claim of misfeasance fails. I also consider that Mr Deliu cannotprove he personally suffered loss because of any misfeasance that may have flowedfrom the application for the warrant. I have expressed criticisms of the approachDetective Holland followed but those criticisms do not extend to finding she hascommitted misfeasance in public office.88 Accordingly, this claim of misfeasancefails.[237] Mr Deliu also relies on certain conduct that predates the application for thesearch warrant and reveals a level of frustration on the part of Detective Holland whenMs S through Mr Deliu declined to be interviewed by Police. However, that cannotbe elevated to comprise either actual or presumed malice in the form of knowinglyacting outside authority at the time the warrant was executed. The level of frustrationand even underlying rudeness that is expressed in the communications sent byDetective Holland about Ms S's reluctance to be interviewed by Police on their termscannot be elevated to evidence of actual malice. Nor does such evidence have anyconnection with Detective Holland's knowledge at the time she applied for the warrantas to how it would later be executed. I acknowledge that in principle communicationsfrom Police to Ms S that revealed a level of animus suggestive of actual malice (spiteor ill will) against her would satisfy the malice ingredient for misfeasance. However,I do not read the subject communications as going that far. Accordingly, this claim ofmisfeasance fails.[238] The second occasion of misfeasance is alleged to be when Detective Hollandfailed to ensure that before the search of level 7 progressed an appropriaterepresentative was actually present and able to claim privilege before the warrant wasexecuted. This alleged misfeasance follows on from the first alleged occasion and itfails for the same reasons as the earlier occasion of alleged misfeasance. The evidenceshows that a couple of days before the search commenced Detective Holland didapproach the NZLS for the purpose of appointing a representative to be present duringthe search. I acknowledge that the approach was not done as well as it could have88 See [23] herein.been.89 But ultimately, she had no control over whether the NZLS would participatein the way provided in s 143(3). Further, on the day of the search she was not incommand of the search. She was subject to the directions of senior officers. Herinability to arrange beforehand for a representative to be present cannot besubsequently connected to her being responsible for the search proceeding incircumstances where she either knowingly or was recklessly indifferent as to whetherthe search proceeded on an unlawful basis. She simply did not have the level ofauthority that would have permitted her to perform such conduct. This answers anypossibility of actual malice as well. Accordingly, this claim of misfeasance fails.[239] The third occasion of misfeasance is alleged to have been when DetectiveSergeant Corner was presented by Mr Deliu with a hard copy of s 143 of the SSA andstill proceeded to search level 7 along with Detective Holland, who was in thebackground and would have heard the exchange between Mr Deliu and DetectiveSergeant Corner. The period of time from when Mr Deliu approached DetectiveSergeant Corner and provided her with a copy of s 143, to when he left to go to theHigh Court for urgent relief, is brief and must have been only roughly nine minutes.He approached her at around 11.45 am and the search is recorded by both DetectiveSergeant Corner and Detective Holland as being called off at 11.54am.[240] The video recording of the exchange with Detective Sergeant Corner suggeststhat when initially approached by Mr Deliu she did not look at the copy of s 143. Theexchange records Mr Deliu saying, "Can you even look at what section 143 is lookat 143". He repeats later, "look at the statute". Then later he says, "you're in breachof section 143 you're not even reading section 143". To which she responds, "you'vejust given me the document", and he replies "please read it, kindly". She then says,"a representative of the lawyer was here" and Mr Deliu denies that.[241] I consider that a Police officer who is in the middle of the search that had beencommenced by her senior officer, when confronted by Mr Deliu cannot be expectedto make an immediate assessment of the requirements of s 143 in the course of theexchange. I acknowledge that the video recording of Detective Sergeant Corner does89 See [15] and [23] herein.not present her in a good light. She appears rude and abrasive to Mr Deliu. Whilst heappears to be upset and confrontational towards her, Police officers must oftenencounter such conduct from members of the public and usually they are still expectedto respond in a restrained and polite manner.[242] However, I do not consider it can be said that during this brief period of timeDetective Sergeant Corner either knew the search was unlawful or was recklesslyindifferent to whether it was unlawful. It has to be remembered that she at firstattended the scene with the other Police officers, but then left around 10.15 am (beforeMr Deliu and Mr Zhao arrived) to return to the Police station. She came back to relieveDetective Senior Sergeant Chapman of command at 11.30. She would have beenaware the search had been progressing during her absence. There is nothing to suggestshe thought Detective Senior Sergeant Chapman was knowingly acting in an unlawfulmanner or that she was recklessly indifferent as to whether he was acting outside thelimits of his power. She would have seen her role as taking over from him. Whilstthe exchange with Mr Deliu and the provision to her of a copy of s 143 may have givenher pause for consideration, weighing against that was her knowledge of the earliersearch conducted by her senior officer and her belief the search was lawful. However,the fact she called Detective Senior Sergeant Chapman at 11.54 am shows she becameconcerned and did act on those concerns by contacting the senior officer responsiblefor the search. Such conduct is not consistent with recklessness.[243] When it was put to Detective Senior Sergeant Corner by Mr Deliu that Policewere going to get whatever evidence they wanted that day and they were not going tolet the issue of whether or not there was a representative present get in the way, shedenied the proposition saying, "that's not true". The other evidence does not cause meto doubt her denial.[244] My view of the evidence is that it is more probable than not that DetectiveSergeant Corner was advised that Mr Wu was the representative for s 143 purposes,by Detective Senior Sergeant Chapman when she spoke to him at 11:54 am orapproximately thereabouts. I do not accept she knew any earlier than that.90 However,90 See [152] herein.the time frames are so tight and the circumstances involve so much happening at oncebetween Mr Deliu first engaging with Detective Sergeant Corner, her being given acopy of s 143, her speaking on the telephone to Detective Senior Sergeant Chapmanand her being advised by Mr Zhang that the High Court was on the phone that it isdifficult to isolate a particular time where it could be confidently said on the balanceof probabilities she acted knowingly or she was recklessly indifferent as to whetherthe search was unlawful, but she was still proceeding to search. The short spaces oftime cause me to conclude that until she spoke on the telephone with Detective SeniorSergeant Chapman there was insufficient time for her to fully comprehend the searchcould well be unlawful, and therefore the correct course of action would be to stop.[245] The other problem with this allegation of misfeasance is that Mr Deliu needsto show actual loss was suffered by him. In relation to the unlawful search, that wasof client files of Amicus Law. Ms S as the solicitor immediately responsible of theclient files that were the subject of the warrant and Mr Zhao as the principal of AmicusLaw and the person therefore responsible for all client files, would suffer loss if legalprivilege was not protected. But I cannot see how Mr Deliu, whose only connectionto the search was because he was an occupier of level 7 and he was counsel engagedfor Ms S, can establish the requisite degree of loss which this tort requires.Accordingly, I am satisfied this claim for misfeasance fails.[246] The final occasion of misfeasance is alleged to arise from the unlawfulexecution of the search warrant. The execution of the warrant involved all Policeofficers; however, Detective Senior Sergeant Chapman is the person who directlyengaged with Mr Deliu.[247] I find the evidence does not support Detective Senior Sergeant Chapman eitherhaving actual or presumed malice. There is nothing to establish actual malice. Theevidence does not support him either knowing the search warrant was executed in anunlawful manner or being reckless in that regard. Nor does the evidence support himeither knowing or being recklessly indifferent as to whether he had authority to detainMr Deliu under the warrant.[248] The evidence is that Detective Holland and Detective Sergeant Cornerdiscussed the search warrant with the Police inhouse legal team before the execution,but Detective Senior Sergeant Chapman did not. This was the first search of lawyers'premises that he had carried out under the SSA and he had only participated in oneearlier search, which was in 2011 and therefore before the SSA came into force. So,despite his seniority he had little on the ground experience in dealing with searches oflawyers' premises.[249] The impression I have gained from Detective Senior Sergeant Chapman'sevidence is that he does not fully understand legal privilege, insofar as that privilegemay still extend to client files the Police want to search because of the client's suspectcriminal conduct.91 Indeed, his evidence suggested to me this misunderstanding issomething he still holds, because at no time did he qualify his evidence on this topicby limiting it to his understanding at the time of the search. He considered that if MsS was not present then Mr Wu as her legal executive could ensure legal privilege wasprotected by directing Police to the relevant files in a way that also avoided themencountering the files of other clients. There is no doubt that Mr Wu as the legalexecutive working with Ms S should have been able to achieve that. However, thisoverlooks the fact there may have been legally privileged communication/informationon the subject files the Police sought; and that someone who was a properly appointedrepresentative should have inspected the files before the searches began in order toremove any legally privileged material.[250] There is no evidence that the two Police officers (Detective Holland andDetective Sergeant Corner) who had sought advice from Police inhouse legal werefully advised on the application of s 143 or if they were that before the search theysought to advise caution either during the exchange with Mr Deliu or beforehand whenthe Police arrived and found Ms S was not at work. So, even if what was transpiringbefore their eyes did not fit with their understanding of the advice from inhouse legalthey did not warn Detective Senior Sergeant Chapman about that.9291 See [153] herein.92 The defendant did not disclose the legal advice from inhouse legal so how far that advice wentand whether it covered execution of the warrant rather than the application for it is unknown.[251] It is difficult to reconcile Detective Senior Sergeant Chapman's hindsightopinion, twice expressed, that he should have arrested Mr Deliu for obstruction withhim having the requisite knowledge or mental state to establish malice. The mostlikely explanation for him saying that is because he believed at the time he was actinglawfully and still genuinely holds this belief. In the circumstances of this case hadPolice arrested Mr Deliu the moment he was placed in a Police car and transportedunder arrest to the Police station the tort of false imprisonment would have beenestablished. He is not likely to express regret that he did not carry out such an arrestif he had any idea he would have been acting unlawfully by doing so.[252] Detective Senior Sergeant Chapman denied he was acting recklessly. Thedenial is consistent with his other evidence. I have the impression from DetectiveSenior Sergeant Chapman's evidence that he believed the search was lawfullyconducted and he gave the detention order because he thought this was a way thatallowed him to restore control without having to arrest Mr Deliu, which he said he didnot want to do. I find that evidence plausible. The arrest of Mr Deliu would have onlyadded to what had become a difficult situation for Police that day. In the heat of themoment the idea of telling Mr Deliu he was detained may have seemed to be a way ofexerting control without having to make an arrest. A detention power is availableunder the SSA and the warrant expressly referred to a power to detain. In suchcircumstances the restrictions on when that power could be used may have slippedDetective Senior Sergeant Chapman's mind. Accordingly, because Mr Deliu has notestablished the malice requirement for this alleged misfeasance in public office hisclaim must fail.[253] None of the four occasions of alleged misfeasance have been established. Itfollows that this claim must be dismissed, and judgment entered for the defendant.The procedural issues[254] The defendant has accepted that the question of whether the interlocutorydirections of Downs J are a procedural bar to the tort claims should be dealt with aspart of the proceeding's substantive determination. Both tort claims have failed ontheir merits. Whilst that removes the need to deal with the procedural objection to theclaims I do so for completeness.[255] No specific close of pleadings date was set for this proceeding, which meansthe default position in r 7.6 of the High Court Rules 2016 applies; being 60 workingdays before the hearing or trial date allocated. The trial date was 9 December 2019.The most recent amended statement of claim was filed on 13 July 2019. Accordingly,it falls outside the close of pleadings date.[256] The events that are the subject of this proceeding occurred on 31 August 2016.Section 11 of the Limitation Act 2010 generally requires claims for monetary relief tobe brought no later than within six years of the acts or omissions on which that claimis based.93 Accordingly, the tort claims are not time barred.[257] Nonetheless, the defendant argues that the directions given by Downs J in ajudgment delivered on an interlocutory application in this proceeding on 19 May201794 and subsequently in a minute in this proceeding dated 28 August 2017effectively bar Mr Deliu from bringing any claim in relation to the events surroundingthe search on 31 August 2016 other than arbitrary detention. The argument is contraryto well established principle on the law of strike out.[258] In Sandman v McKay the Supreme Court was determining an appeal from anapplication to strike out a statement of claim by the defendant and an application forentry of summary judgment by the defendant seeking dismissal of the plaintiff'sstatement of claim.95 In the course of delivering her judgment Elias CJ discussed theprinciples on which strike out and summary judgment are exercised. The majority ofthe Supreme Court found that the Court of Appeal was correct to grant summaryjudgment, which resulted in the dismissal of the claim. The Chief Justice dissentedfrom the majority on the point of whether it was appropriate to grant summaryjudgment. Her view was that the present statement of claim should have been struckout as there was dispute over issues of material fact which could not be determined93 Section 12 of the Limitation Act 2010 includes claims for compensation under the New ZealandBill of Rights Act 1990 within the definition of claims for monetary relief.94 S v Police [2017] NZHC 1060.95 Sandman v McKay [2019] 1 NZLR 519 (SC).without a hearing, rendering summary judgment in favour of the defendantinappropriate. However, the Supreme Court were unanimous on the finding that theclaim would have been struck out. The Chief Justice explained the difference betweenstrike out and entry of summary judgment for a defendant under r 12.2(2) of the HighCourt Rules in this way:[111] If a claim is untenable on the pleadings as a matter of law, thedefendant may apply under r 15.1(1)(a) of the High Court Rules 2016 for anorder striking it out. That does not prevent the plaintiff repleading andbringing a further, properly-constituted claim.[112] The defendant may also apply for summary judgment under r 12.2(2)of the High Court Rules where able to satisfy the court that "none of the causesof action in the plaintiff's statement of claim can succeed". Because summaryjudgment creates an issue estoppel between the parties, preventing furtherclaim for the same wrong, a defendant may obtain summary judgment onsummary application without full hearing only if the defendant is able todemonstrate a clear answer to all the plaintiff's claims against him. Theapproach is rightly described as "exacting" because it is a serious thing to stopa plaintiff bringing a claim unless it is quite clearly hopeless.(footnotes omitted)[259] The contrast the Chief Justice draws between summary judgment and strikeout were not contentious in the appeal and they provide a helpful guide for reviewingwhat has happened in this proceeding. Here, the earlier statement of claim waschallenged by the defendant through strike out rather than through summary judgment.Entry of summary judgment in favour of the defendant would have created an issueestoppel between the parties which would have prevented Mr Deliu from bringing anew statement of claim based on the same issues. Had matters progressed in this waythere would have been a bar to Mr Deliu bringing the present claims for falseimprisonment and misfeasance in public office. However, the only step the defendanttook against the earlier causes of action was by way of strike out. That means therecould be no bar to him repleading and bringing a further properly constituted statementof claim either pleading the same causes of action or, new causes of action based onthe same, or similar, alleged material facts.[260] Justice Downs struck out various causes of action but found the cause of actionbased on arbitrary detention, if amended, could identify an arguable claim for arbitrarydetention contrary to the NZBORA. However, Downs J considered the cause of actionrequired substantial repleading. Accordingly, he directed that Mr Deliu was to file andserve an amended statement of claim confined to this cause of action.96[261] When I read the judgment of Downs J in its entirety I am satisfied that theJudge's intention was to strike out claims that he either considered untenable or badlypleaded. I consider that the findings must be read as limited to the claim on whichthey were based. That in my view was the intent of the Judge and it is the way hisjudgment should be read. Following delivery of the strike out judgment Mr Deliu fileda new amended statement of claim (not the current pleading) dated 18 July 2017 inwhich he pleaded, amongst other things, false imprisonment.[262] The defendant complained that this new statement of claim went beyond whatwas permitted by Downs J in the decision on strike out dated 19 May 2017. Thecomplaint was raised by way of memorandum rather than a second strike outapplication. The minute Downs J issued records his criticism of the approach takenby the parties filing memoranda rather than formal applications. At [4] of the minutethe Judge records that the causes of action other than the arbitrary detention cause ofaction are in contravention of the unless order and "unarguable". He goes on to saythey should not have been included in the amended statement of claim which was tobe confined to the only arguable cause of action. Whether the Judge considered theaddition of the other causes of action including false imprisonment were unarguablesimply because he had made an order to that effect or were unarguable because on theface of them, as he read them, they too were so poorly pleaded that they could notproceed, is unclear to me. I acknowledge the minute may be ambiguous however, Iconsider it must be read in a way that fully accords with established law. Accordingly,my view is that the comments Downs J makes about other causes of action not beingarguable has to be read as something referenced to the causes of action that were thenbefore him in the statement of claim dated 18 May 2017 and his view that he foundthose causes of action to be unarguable because they were untenable. Accordingly, Ido not read the decisions of Downs J, either in the judgment of 19 May 2017 or theminute of 28 August 2017, as going as far as the defendant would have them be read.96 See S v Police [2017] NZHC 1060 at [51] – [52] and [62].[263] The next procedural point is that the defendant is named as the New ZealandPolice. That is a statutory entity recognised as an instrument of the Crown by s 7 ofthe Policing Act 2008. Usually, in NZBORA claims, the named defendant is theAttorney-General. As was recognised in Baigent's Case an action for damages underNZBORA is not a private law action in the nature of a tort claim for which the Stateis vicariously liable.97 Rather, it is a public law action directly against the State forwhich the State is primarily liable. Typically, therefore, the defendant is the Attorney-General. However, the statutory recognition given to the Police in the Policing Actseems, to me, to be sufficient for it to be named as a defendant in a claim like thepresent which is part NZBORA and part tort.[264] Throughout this proceeding, which at times has seen the defendant adopt anassertive opposition based on what it perceived to be procedural irregularities, nocomplaint was ever made by the defendant about the named defendant not being theAttorney-General. The defendant has been represented by counsel from the AucklandCrown Solicitors office throughout. Accordingly, I am satisfied that the Crown hasbeen substantially on notice of the proceeding and it has taken no step to draw to theCourt's attention any concerns it might have as to any perceived irregularity in theform of the named defendant. In such circumstances I consider if there is anyirregularity it has been cured by the Crown's acquiescence in not making anycomplaint about the irregularity.[265] The next procedural issue I deal with is an evidential issue regarding thereliance I have made on notes taken by Police officers at the time of the search orshortly thereafter which are contained in the two bundles of documents that wereprepared for the trial of this proceeding.[266] During closing submissions counsel for the defendant submitted that initiallythe defendant had raised objections to the admissibility of documents in the agreedbundle. However, as the hearing progressed those documents were put to witnesses.The documents at tabs 2-8 of the further bundle of documents were all put to thewitnesses who had created those documents by Mr Deliu and they were questioned on97 Baigent's Case [1994] 3 NZLR 667 (CA).them. However, during the course of discussion with counsel (these discussions arerecorded in the Notes of Evidence at the conclusion of legal submissions)98Mr Flannigan queried whether the statements were being admitted "holus bolus to relyupon the truth of them". He suggested that if Mr Deliu or he were to rely on any partof the statements as counsel, each would have had to put that part of it to a witness. Ireject the idea that evidence contained in a common bundle for the purposes of a civiltrial, which includes documents that have been referred to a witness, will only comeinto evidence insofar as the specific passages of the document that were referred to thewitness are an issue.[267] Rule 9.5 of the High Court rules sets out the consequences of incorporatingdocuments in a common bundle. Here there were two common bundles. The inclusionof a document in a common bundle does not preclude objections to be recorded in thebundle. Here, no objections were recorded in the bundle but Mr Flannigan did, at thebeginning of the hearing, raise some concerns about some of the documents in thebundle. They were put to the side until the end of the hearing. A key point of r 9.5 isthat a document in the bundle only becomes evidence when referred to by a witnessin evidence or by counsel in submissions (other than in closing) and then itautomatically becomes evidence subject to the resolution of any objection.[268] Mr Flannigan did not object to the admissibility of the documents at tabs 2 to8 of the "Further Bundle of Documents" which involved the contemporary notes madeby the Police officers. His concern was whether those statements would be admittedwholly for the purpose of relying on the truth of them. Certainly, the makers of thosedocuments were questioned about them by Mr Deliu and Mr Flannigan would havehad the opportunity to question the makers about their statements in re-examination.The inclusion of these documents in the bundles of documents would have given himsufficient notice to consider whether he called evidence from them by way ofevidence-in-chief to address any issues that were of concern in those statements.[269] A key feature of the law of evidence since the passing of the Evidence Act 2006is that documents once admitted, are admissible for all purposes. This is a departure98 See NOE at 426 onwards.from the earlier position under the common law where evidence could be admitted forone specific purpose but no other. I am satisfied that the inclusion of the documentsin the common bundles, the fact that the makers of those documents gave evidenceand addressed specific parts of those documents in their evidence, is enough to satisfythe requirements under the High Court Rules and the Evidence Act for the admissionof documentary evidence in a civil proceeding. I also consider that once admitted theevidence is then admissible for all purposes including as to the truth of its contents.Moreover, given the documents were Police generated documents and the makers ofthose documents were witnesses for the defendant, it is difficult to see how thedefendant could maintain any objection to them being relied upon for the truth of theircontents.99[270] I now deal with the final procedural issue. At the beginning of the hearing itcame to my attention that the defendant had omitted to deny Mr Deliu's causes ofaction in false imprisonment and misfeasance in public office. The previous statementof defence had included denials as well as a pleading that Mr Deliu was barred frombringing those causes of action by the ruling of Downs J. With the most recentstatement of defence (which answered Mr Deliu's statement of claim dated 13 June2019) the defendant maintained its reliance on the ruling of Downs J being a bar to thetort claims but that was as far as the pleading went.[271] I heard from the parties. Mr Deliu opposed the defendant being able to amendthe statement of defence to include denials. Mr Flannagan acknowledged the omissionwas an error and sought to amend the pleading.[272] I allowed the amendment. Rule 1.9 of the High Court Rules permits the Courtat the trial of any proceeding to amend any defects and errors in the pleadings orprocedure in the proceeding. I was satisfied it was in the interests of justice to do soand that the amendment was necessary to permit the determination of the realcontroversy between the parties relevant to the claims for false imprisonment andmisfeasance in public office. There was no real disadvantage to Mr Deliu who had99 See Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54]; Hannigan v R [2013] NZSC 41, [2013]2 NZLR 612 at 135. See also discussion in Elisabeth McDonald and Scott Optican (eds) Mahoneyon Evidence: Act and Analysis (Thomson Reuters, Wellington, 2018) at [EV7.05].prepared to prove those causes of action. The omissions were accidental. The materialallegations in those causes of actions were denied. The stance of both partiesthroughout the proceeding's history was that the material allegations were disputed.The arbitrary detention was denied and it logically followed that the falseimprisonment would be as well. Whilst that did not apply to the misfeasance in publicoffice I considered the absence of any real prejudice to Mr Deliu warranted mepermitting the defendant to amend to include the denials to that cause of action as well.Relief[273] Mr Deliu is entitled to relief for the arbitrary detention that I have found hesuffered. First, he is entitled to a declaration that his rights under s 22 of the NZBORAwere breached.[274] Mr Deliu also seeks monetary compensation for the breach of s 22. It is wellsettled since Baigent's Case that grants of monetary compensation for breaches ofNZBORA rights are available.100 Such grants are for the purpose of giving effect toor vindicating the rights protected by the NZBORA.101 In principle there must be nooverlap with damages awards for torts that are established from the impugned conduct,but here that principle is not engaged.[275] The conduct of the plaintiff and any knowledge he or she might have relevantto the lawfulness of the conduct giving rise to the breach is irrelevant.102 A plaintiffwhose NZBORA rights have been breached cannot be seen to have contributed to theharm he suffered through his conduct. In Wright v Bhosale the plaintiff was a lawyerwho knew the Police had no legal basis for the charge he faced.103 This knowledgecould not be relied upon by Police to mitigate the failure of the Police officers toinform the plaintiff of the details of the charge that had led to his arrest.[276] In the present case the Police complaint about Mr Deliu when he "intruded" onthe search was that he was aggressive and rude. That was as far as Detective Senior100 Baigent's Case [1994] 3 NZLR 667 (CA).101 See Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 at [131] and the authorities referredto therein.102 See above at [132].103 See above.Sergeant Chapman could go to explain why he reacted as he did. However, I do notfind the words Mr Deliu expressed to be rude. This can be seen from reading thetranscript of the exchanges between Mr Deliu and Police officers that day. He madeit clear he did not want to engage with Detective Senior Sergeant Chapman, but thiswas in circumstances where rather than speak directly to Mr Deliu about the searchand what had been seized already Detective Senior Sergeant Chapman proceeded togive Mr Deliu the NZBORA rights that Police give to suspect persons and he failed toaddress directly the questions that Mr Deliu posed to him. Those factors exacerbatedthe situation facing Mr Deliu. Neither party acted politely towards the other.[277] I am not aware of any legal basis for reducing or removing entitlement tocompensation based on a concept of contributory conduct on the part of Mr Deliu.The defendant submitted I should do so but has provided no authority to support thatapproach. I am not aware of any such authority, nor can I see a basis in principle fortaking that approach.[278] In any event, insofar as there may be extraordinary cases where a citizen whosuffers a breach of his or her NZBORA rights can receive a lower amount ofcompensation because of contributory conduct that is seen somehow to warrant areduction, I am not persuaded that this case falls into such category. Mr Deliu wasangry and upset. But given he was faced with an unlawful Police search of premisesout of which he operated his barristers' practice and there was good reason to beconcerned about protection of legal privilege, thus his demeanour is not surprising.The short point is that the Executive is responsible for ensuring agents of the staterespect rights protected by the NZBORA. Those rights should always be respectedand protected. When they are breached redress is required in order to give effect toand vindicate those rights.[279] I acknowledge that the circumstances of the breach including the conduct ofthe plaintiff are relevant to the level of compensation to be awarded insofar as tryingcircumstances created by a plaintiff's conduct may in appropriate occasions warrant alesser sum of compensation, just as more egregious conduct on the part of thedefendant can warrant an increase in the level of compensation. In sum, thecompensation awarded in any particular case should be designed to best reflect theinjury suffered by the plaintiff and the wider community. A breach of NZBORA rightsby agents of the Crown injures the plaintiff and the wider community as everyone hasan interest in those rights being upheld.[280] Here Mr Deliu, as the occupier of part of the legal premises which the Policehad entered to execute a search warrant, had every right to question them as to whythey were there, expect to view the warrant and to check with them that whatever theymay have seized was not part of his legal practice. As the barrister briefed by Ms S toact for her and someone who had already communicated with Police about their wishto interview Ms S, he had good reason to be concerned about the Police presence onlevel 7 because there would have been his own files relevant to this investigation,which were likely to contain some legally privileged material. It is difficult to see howMr Deliu could have advised Ms S about the Police investigation without creatingsome "things" that were protected by legal privilege.[281] There is also the fact that lawyers are typically protective of legal privilegebecause they are aware of its fundamental importance to the function of the rule oflaw. The potential for legal privilege being at risk would be concerning to any lawyer.[282] Finally, there is the fact that Mr Deliu would have had little time to think aboutwhat was happening that day and how best to approach matters. The first he wouldhave known was when he was telephoned and told the Police were at level 7. Whenhe walked into the premises the Police were in the conference room and the search hadalready begun. Thus, Mr Deliu had to respond to a problem that he had only recentlylearned about. He did not have time to reflect on how best to approach the Police.Indeed, until he entered the conference room he may have had no idea about how theywould respond to him.[283] Accordingly, whilst I can imagine other possibly better ways of approachingPolice when faced with the situation that confronted Mr Deliu, I do not find hisconduct to be so unacceptable that it would warrant reducing the level of compensationI consider he should receive.[284] On the other hand the Police conduct towards Mr Deliu was high-handed,overbearing and unreasonable. He was subject to an unlawful and arbitrary detentionthat was in the context of an unlawful search of the premises from which he conductedhis legal practice. He had informed Police he occupied the premises. He was also thelawyer known by Police to be acting for Ms S. It follows that he had every right to beon the premises and to question Police as to what they had taken in the search in casethey had taken something relevant to his clients, which would have included Ms S.Instead, for no good reason he was subject to Police caution, informed he could bearrested for obstruction of Police and then twice told that he was detained under thewarrant. This unwarranted display of purported authority which also carried implicitthreat that worse was to come if he was not compliant, would have been an unpleasant,humiliating and upsetting experience for him. No Police officer relieved him of thedetention and he remained under detention for between 20 to 35 minutes.[285] In Attorney-General v Niania Tipping J found that, in relation to fixing anaward of compensatory damages for wrongful arrest and false imprisonment, whereappropriate a greater sum may be necessary to compensate the plaintiff for the injurysuffered because of the way in which or the circumstances in which the tort iscommitted.104 In Dunlea v Attorney-General the majority of the Court of Appealobserved that there are strong reasons for not adopting a different approach when itcomes to fixing compensation for a breach of the NZBORA compared with fixingdamages for torts.105 The majority explained this on the basis that in Dunlea the samefacts lied behind rulings in tort and for breach of the NZBORA: namely, that the statethrough its officers had acted in breach of the rights of the plaintiffs. I am not awareof any authority to the contrary of what was proposed in Dunlea.[286] Accordingly, I propose to approach the question of fixing compensationconsidering the contextual circumstances of the arbitrary detention. It follows that Iconsider an arbitrary detention in the context of an unlawful search, with the threat ofpossible arrest if the conduct that attracted the detention order continues, leads to amore serious breach of s 22 than would be the case of an arbitrary detention in the104 Attorney-General v Niania [1994] 3 NZLR 106 (HC) at 111.105 Dunlea v Attorney-General [2000] 3 NZLR 136 (CA) at [37] – [38]. The majority declined toresolve whether the approach should be the same or not because the appellants were not on noticefrom the Crown that the issue would be argued.context of a lawful search. This is because of the more intrusive nature of the unlawfuluse of authority by Officers of the State.[287] Here the unlawful search occurred through poor Police planning and foresightas well as them having a faulty understanding of the protection the law gives to legalprivilege. Once the NZLS had advised Police before the search that it did not want toappoint an independent representative the Police should have taken steps to remindthe NZLS of its statutory role under s 143(3) of the SSA. The idea of arrivingunannounced at the premises of Amicus Law at 9am on the expectation Ms S wouldbe present and co-operate with the search carried high risks. Detective Senior SergeantChapman's practice when executing warrants of typically cautioning persons anddetaining them (which was done to Mr Wu as well as to Mr Deliu) is not required bythe SSA or the NZBORA. It is capable of appearing to be overbearing conduct. ForPolice it carried with it the risk that anyone subjected to that process would thenexercise his or her right to silence and refuse to engage with Police until in receipt oflegal advice. That of itself would have brought the search to a halt. SeeminglyDetective Senior Sergeant Chapman did not contemplate that a recipient of aNZBORA caution might choose to exercise the rights it provides to the recipient. ThePolice had placed themselves in a difficult position when they arrived unannouncedonly to find Ms S was not present. Their difficulties were exacerbated when Mr Deliuarrived and questioned what they had been doing. However, these were difficulties oftheir own making.[288] In Dunlea, which was decided in the year 2000, the unlawful search of a privatedwelling without more resulted in an award of $1500 to three of the occupants. Twoof the occupants were more affected because they were later held by Police officerson the street while still in handcuffs and treated with indifference by those officers,despite it then being known that they were innocent victims of a Police mistake as totheir identities. This resulted in them being awarded $18,000 and $16,000 respectivelyfor false imprisonment. The higher payment also reflected a subsequent and unlawfulsearch of that plaintiff.[289] In Wright v Bhosale Mr Wright received $12,000 for false imprisonment andfalse arrest and $2000 for arbitrary arrest to affirm the right protected by s 22(a) of theNZBORA.106 The Court finding that if NZBORA is to be more than an emptystatement the Courts must be able to grant appropriate and effective remedies whererights have been infringed.107 Mr Wright was wrongly arrested by Police because asa passenger in a vehicle he lawfully refused to give his personal details to ConstableBhosale. Mr Wright was then transported to the Police station and charged. He wasultimately granted Police bail after being locked in a Police cell for approximately twoand a half hours. Hinton J recognised there should be no doubling up withcompensation awarded under NZBORA and for torts like false imprisonment.108 Thusthe $12,000 in compensatory damages can be viewed as providing compensation forthe full extent of the private wrong and harm suffered by Mr Wright, whilst the $2000compensation for the breach of s 22(a) can be viewed as a separate recognition of thefact s 22(a) of the NZBORA was breached. Otherwise to view the $2000 award asalso reflecting the wrong and harm done to Mr Wright by the breach would necessarilyinvolve an element of doubling up.[290] Wright v Bhosale is a helpful decision because it is relatively recent. Many ofthe NZBORA cases involving breaches of rights protected by NZBORA arise in thecriminal law context where the admissibility of evidence is challenged, and questionsof compensation are not in issue. Cases that do involve compensation which date back10 or more years show levels of compensation which may now require adjustment.[291] I consider that $3000 is a sum that would properly compensate Mr Deliu forthe breach of s 22(b) that he suffered and vindicate the fundamental right preserved bythat section. In arriving at this quantum I have also considered the fact the breach wassuffered for a short period of time and did not involve a complete loss of liberty. Onthe other hand, I bear in mind that there was an infringement of Mr Deliu's libertywhich he suffered at his work premises where he could be expected to feel safe fromsuch intrusions. Instead he found himself vulnerable to arrest (which was threatened)and ordered to be detained, backed up by the earlier giving of a caution as is requiredby s 23 of NZBORA for persons who are subject to arrest or detention under anenactment. Not only was Mr Deliu rendered vulnerable to arrest, Detective Senior106 Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 at [159].107 At [131].108 At [130].Sergeant Chapman, who placed Mr Deliu in this position, acted in a high-handed andoverbearing manner to the point where Mr Deliu's will to resist was overborn to sucha degree that he was prepared to retreat from the search area of the legal premises tohis own office in compliance with the detention order. This would have been anunpleasant and humiliating experience for him, particularly given it occurred at hisplace of work, in front of many of his colleagues. Like any other citizen he is entitledto look to NZBORA to protect him from such experiences.[292] In Baigent's Case Cook P acknowledged the need for redress of breaches ofaffirmed human rights as being in a field of its own.109 He distinguished NZBORAcompensation from damages in tort. He considered that the level of compensationshould in addition to physical damage take account of intangible harm such as distressand injured feelings, the gravity of the breach, the need to emphasise the importanceof the affirmed rights and to deter breaches as also being proper considerationsrelevant to the level of compensation. This was qualified by the caveat thatextravagant awards are to be avoided. Here I consider $3000 is not extravagant. Thedefendant submitted that if I had reached the point where I was prepared to awardcompensation I should award no more than $400, that being a sum that was equivalentto one hour of Mr Deliu's charge out rate. The reasoning being that the detentionwould at most have adversely affected his ability to work for one hour. I reject thatsubmission. I consider that here at least $2000 should be awarded to compensateMr Deliu for the distress and harm he suffered that day with an additional $1000 toreflect his and the public's interest in the protection, promotion and vindication of therights affirmed by s 22 with the end sum being $3000.[293] Mr Deliu also sought an apology from Police. I consider the declaration madein this judgment, and the sum of compensation awarded are a proper reflection of theredress to which Mr Deliu is entitled. Public apologies are usually associated with thetort of defamation, and no authority to support a direction for the type of apologysought by Mr Deliu in the amended statement of claim was drawn to my attention.Nonetheless it is clear to me from Baigent's Case that the range of remedies availableto the Court to redress breaches of NZBORA is wide. I consider Mr Deliu is entitled109 Baigent's Case [1994] 3 NZLR 667 at 677-678.to an apology but it need be no more than a written apology sent to him. How he thenchooses to treat the apology is a matter for him. This deals with the relief sought forthis cause of action.[294] Mr Deliu also sought a declaration the judgment be referred to the IndependentPolice Complaints Authority (IPOC). However that was in relation to the relief soughtfor misfeasance in public office. He has not succeeded in that cause of action so norelief is available. He did under the relief for arbitrary detention seek any further reliefthe Court may grant. I do not consider it appropriate under that head to make thedirection he seeks. Also it is unnecessary. He is at liberty to refer the judgment to theIPOC should he wish to do so.Result[295] The claim for arbitrary detention under s 22(b) of the NZBORA is proved andjudgment is entered against the defendant for Mr Deliu.[296] The claims in false imprisonment and misfeasance in public office are notproved and are therefore dismissed. Judgment is entered for the defendant on theseclaims.[297] I make the following declaratory order:The detention of Dr Frank C. Deliu at Level 7, 175 Queen Street, AucklandCBD, New Zealand on 31 August 2016 for a period of: 20 – 35 minutes wasarbitrary and a breach of his human rights under s 22 of the NZBORA.[298] Mr Deliu is awarded $3000 in public law compensation for the breach ofs 22(b) of the NZBORA.[299] The defendant is to provide Mr Deliu with a written letter of apologyacknowledging the breach of s 22(b) of the NZBORA.[300] The parties have leave to file memoranda as to costs.