GRAHAM ASHLEY ROBERT PALMER V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV-2009-404-6602

GRAHAM ASHLEY ROBERT PALMER V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV-2009-404-6602 19 August 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-6602BETWEEN GRAHAM ASHLEY ROBERT PALMER Appellant AND THE ATTORNEY-GENERAL OF NEW ZEALAND Respondent Hearing: 5 August 2010 Appearances: Appellant appearing in Person N Whittington for Respondent Judgment: 19 August 2010JUDGMENT OF ASHER JThis judgment was delivered by me on 19 August 2010 at 11:30 am pursuant to Rule 11.5 of the High Court Rules .. Registrar/Deputy Registrar .. DateGAR Palmer, PO Box 17496 Greenlane, Auckland N Whttington, Meredith Connell, Crown Solicitor, PO Box 2213, Auckland[1] The appellant, Graham Ashley Robert Palmer, has issued proceedings against the Attorney-General seeking damages or compensation for various claims relating to an application for a search warrant and the execution of that warrant. This is an appeal by Mr Palmer against a decision of the District Court, where the Judge decided certain pre-trial issues and struck out two causes of action in the statement of claim.Background[2] Between 14 December 1999 and 11 April 2006, Mr Palmer was a serving inmate in the west division of Auckland Prison at Paremoremo. On 22 May 2001, Peter Preece, a non-sworn member of the New Zealand Police and a senior forensic accountant attached to the Criminal Investigation Branch of the Auckland City District Police, applied to the District Court at Auckland for a search warrant. The search warrant was described as being: in respect of any building, carriage, vehicle, box, receptacle, premises or place situated at [first], the Auckland Prison, east wing, Paremoremo, Auckland; and, [second], 2/188 Hillsborough Road, Hillsborough, Auckland.The allegation in the application was that Mr Palmer had been involved in dishonest activities, in particular obtaining CD ROMS, books and other items by fraudulent means. [3] Mr Palmer was in Paremoremo Prison at the time and the search warrant in that respect was directed against him. In fact he was in the west wing and not the east wing as shown in the application. The address at 2/188 Hillsborough Road was also linked to Mr Palmer. This was a flat occupied by a friend of Mr Palmer, Brian Jacobsen, who was allegedly involved in Mr Palmer's affairs and was holding various relevant items. [4] On 17 May 2001, the New Zealand Police had received a written complaint from Brookers, the legal publishing company, alleging that Mr Palmer had obtained goods from it under false pretences. It was alleged in the application based on thiscomplaint, that there would be found at both addresses evidence of the offences of using a document, attempting to pervert the course of justice, forgery and perjury. [5] Two search warrants were issued by the Deputy Registrar of the Court on 22 May 2001. The search warrant directed to the prison could not be immediately executed, as it was discovered by the police who were executing the warrant that Mr Palmer was not in fact in the east wing of Paremoremo, but the west wing. Mr Preece then returned to the court and obtained an amended warrant from the Deputy Registrar, who initialled the amendment. The warrants were executed the next day on 23 May 2001. [6] In 2006 Mr Palmer's convictions were quashed by the Court of Appeal. He had in the meantime issued these proceedings in 2001. By 2006 he had filed a sixth amended statement of claim. The Attorney-General filed an application for determination of a preliminary question. There were six particular questions that both the Attorney-General and Mr Palmer, with Mr Palmer consenting in writing, asked to have determined. These can be summarised as follows: a) Were the search warrants issued on 22 May 2001 valid? This is a combining of questions 1(a) and 1(c) of the application. b) Were the two warrants lawfully executed? This is a combination of questions 1(b) and 1(d) of the application. c) Considering these questions, if there was any defect, irregularity, omission or want of form, does s 204 of the Summary Proceedings Act 1957 apply and validate either warrant? This was question 1(e) of the application. d) If there was unlawfulness, does s 34(9) of the Police Act 1958 or ss 26 or 27 of the Crimes Act 1961 apply to protect the individual members of the police from civil liability? This was question 1(f) of the application.e) Is the Crown liable for the actions of the members of the police in applying for and executing the warrants under s 6 of the Crown Proceedings Act 1950? [7] Judge Hubble did not deal with the particular questions seriatim, but the general effect of his judgment was to determine each question in favour of the Crown. He concluded that the warrants were valid and that the police officers executing them were acting lawfully. He went on to strike out the second and eighth causes of action. He did not strike out the third to seventh, and ninth causes of action. [8] I will approach this appeal by considering each of the six questions, and Judge Hubble's determination of them.Were the search warrants issued upon the application of Mr Preece valid?[9] In considering this question, which is the combined questions (a) and (c) of the application for determination of a preliminary question, the focus is on Mr Preece's application. I must consider whether s 6 of the Police Act 1958 prevents civilians from applying for search warrants under s 198 of the Summary Proceedings Act. In his sixth amended statement of claim Mr Palmer pleads that the search warrants that were sworn by Mr Preece, a citizen who is not a police officer, contravene s 6 of the Police Act. Section 6(1) reads:6. Non-sworn members of the Police(1) Except as otherwise expressly provided in this Act or any other enactment,— (a) No non-sworn member of the Police shall have or may exercise in relation to members of the public any of the powers, functions, or duties of a member of the Police under this Act or any other enactment or at common law; and (b) No reference in this Act or any other enactment to any member of the Police shall be read as including a reference to a non-sworn member of the Police.[10] Mr Palmer argues that Mr Preece, who is not a sworn member of the police, was in fact exercising the powers, functions and duties of a member of the policewhen he applied for the warrant in breach of s 6. Mr Whittington argues in response that s 6 did not apply, as members of the public are able to apply for search warrants and that is not a function restricted to the police. [11] Section 198(1) and (2) provide:198. Search warrants(1) Any District Court Judge or Justice or Community Magistrate, or any Registrar (not being a constable), who, on an application in writing made on oath, is satisfied that there is reasonable ground for believing that there is in any building, aircraft, ship, carriage, vehicle, box, receptacle, premises, or place— (a) Any thing upon or in respect of which any offence punishable by imprisonment has been or is suspected of having been committed; or (b) Any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence; or (c) Any thing which there is reasonable ground to believe is intended to be used for the purpose of committing any such offence— may issue a search warrant in the prescribed form. ... (2) Every search warrant shall be directed either to any constable by name or generally to every constable. Any search warrant may be executed by any constable.The section is explicit as to who may order a search warrant. However, it contains no restriction at all on who may apply for one. There is no reference to the police or, indeed, any other person. It cannot be said, therefore, that only sworn police officers can apply for a warrant. Any person may do so. It is to be noted that in Van Delden v Lockett,1 a search warrant which had been obtained by a civilian was not held to be invalid for that reason, although the point was not addressed specifically. [12] Of course, police officers can apply for search warrants and, in fact, most applications are made by police officers. But the power to apply under s 198 is not limited to police officers. It is not an exclusive power.1 Van Delden v Lockett HC Auckland CIV-2007-404-6384 6 December 2007, Harrison J.[13] Section 6(1)(a) is aimed at powers, functions or duties that are expressly for members of the police only. An example is the search and seizure powers in s 18 of the Misuse of Drugs Act 1975, which are exclusive to constables. Where, however, the power, function, or duty is one available to all members of the community, s 6(1)(a) does not apply. In this regard the right to obtain a warrant under s 198 is like a citizen's power of arrest. While it is a right generally exercised by members of the police, it can also be lawfully exercised by a member of the public. [14] Mr Palmer raised in submissions the issue of whether the application was valid when measured against some statements about warrants in R v Williams.2 In particular, he quoted from R v Williams,3 the observations that applications for warrants should:(a) Accurately describe the offence they believe the search relates to. (b) Explain what it is they expect to find and why, and where they expect to find it and why. Applicants should be as specific as possible. (c) Make sure they describe the place where they expect to find the item accurately, such as the correct address of a house or registration number of a car. (d) Include a description of all relevant information held or received (whether favourable or unfavourable) and all relevant inquiries made.Mr Palmer alleges that Mr Preece failed to name his source, failed to give any advice to the Registrar to the effect that the informant was a "convicted stalker", and failed to reveal that he was being manipulated by the informant. [15] R v Williams was delivered approximately seven years after the events in question. What was said in that case was intended to provide guidance to those seeking warrants, rather than a test for determining whether the warrants were valid. 4It was noted in R v Williams,5 that it has always been recognised in New Zealand that the applicant for a search warrant need not disclose the name of the informant whose information provided the basis for the application. Mr Preece's application plainly2 R v Williams [2007] 3 NZLR 207.3 At [224].4 See R v Kissling [2009] 1 NZLR 641 at [29].disclosed the fact that much of the information came from an anonymous informant. There is nothing to indicate that the material put forward by Mr Preece was inaccurate. It discloses the complaint from Brookers, and there is other evidence referred to which corroborates the advice of the informant. [16] Thus, I do not accept Mr Palmer's submission that the application or warrant were in some way invalid because there was reference to an anonymous informant. Mr Preece's assertion that the informant was anonymous was correct. I also record that given the information disclosed in the lengthy application there was reasonable ground for believing that there was, in the places where the warrant could be executed, designated items that would be evidence of the commission of at least some of the suggested offences. [17] There is a third complaint by Mr Palmer about the application. He asserts that Mr Preece misled the court by not properly revealing that he was not a sworn member of the police. Mr Preece in the application describes himself as a "Senior Forensic Accountant, of Auckland." In the first paragraph of the application he states:My full name is Peter James Preece. I am the Senior Forensic Accountant attached to the Criminal Investigation Branch of the Auckland City District Police.No one reading these words with any care could properly assume that Mr Preece was a sworn member of the police. The words used indicate the contrary. He is a senior accountant and "attached" to a branch of the police. It would be assumed that "attached" means something different from "a sworn member of". Mr Preece did not say he is a police constable or indicate a rank. No reasonable person would have been misled. There was no obligation on Mr Preece to positively assert that he was not a sworn police officer. [18] Mr Palmer also argued that it was wrong for Mr Preece to have filed a single application for two different warrants. This submission cannot succeed. The Summary Proceedings Act does not contain any requirement that there must be a5 At [25].separate application for each search warrant. The issue was considered in R v Wallace.6 The Judge concluded that it was lawful for there to be a single application for multiple warrants. He drew support from the Court of Appeal decision in R v Grayson & Taylor, 7 where there had been a single application for search warrants in respect of three different properties. No adverse comment or criticism appears to have been made by counsel or the Crown in that case as to the lawfulness of that procedure. I am satisfied that the application was not unlawful on this ground. [19] Thus, I conclude that Judge Hubble was correct to reject Mr Palmer's arguments that the application for the warrants was defective. [20] I conclude that the correct answer to questions 1(a) and 1(c) of the application was 'Yes'. The search warrants issued were valid search warrants. I deal with the issue of the change to the Hillsborough Road search warrant at [27]- [34].Were the two warrants lawfully executed?[21] This was not an issue pursued in any detail by Mr Palmer, and I gather from the District Court judgment that he adopted the same approach in that Court. [22] On the information before the Court the warrants were executed by police officers as required, and copies of the warrants were given or shown to the appropriate persons. The searches were conducted within the parameters of the warrants in their ultimate form, and the seizures also appear to have been within the four corners of the warrants. There was nothing in the pleadings or other material to indicate that anything seized was not authorised to be seized. [23] Mr Palmer in his submissions stated that one of the executing officers should have been aware of various matters relating to the validity or otherwise of the search warrants, and that this indicates he acted in bad faith. This is a new allegation that was not pleaded in the sixth amended statement of claim and there is no evidence supporting it.6 R v Wallace Unreported HC Auckland T139/98, 27 August 1998, Giles J.[24] The Judge noted another point raised by Mr Palmer, which was that the officers executing the warrant acted outside the scope of the warrant in seizing documents that would otherwise be privileged. The point was not pursued in this Court. As the Judge noted, the issue of privilege can be settled after seizure by no use being made of particular documents. There is no basis for declaring the warrants or procedure invalid on the basis of any breach of privilege. [25] There is evidence that all the property taken has now been returned. [26] The Judge rejected the suggestion that the warrants were not lawfully executed, and he was correct to do so. Thus, questions 1(b) and (d) can be answered in the affirmative.Does s 204 cure any want of form in the warrants?[27] There was an error in relation to the warrant applying to Paremoremo Prison. The east wing was specified whereas there should have been a reference to the west wing. The police became aware of this error before they executed the warrant, and communicated the mistake to Mr Preece. He took immediate steps to correct it. He returned to the District Court later in the day and explained the situation to the Deputy Registrar who had granted the warrant. In the presence of the Deputy Registrar, Mr Preece made handwritten amendments to the application that had been filed where it referred to the "east" wing. He initialled the changes, as did the Deputy Registrar. The Deputy Registrar then amended the description of the area to be searched at Auckland Prison in the warrant, to read the "west" wing. She initialled the changes in Mr Preece's presence. [28] Mr Preece stated in his affidavit that he was unsure whether he had applied for the amendments under oath. Section 198(6) provides as follows:198 Search warrants7 R v Grayson & Taylor [1997] 1 NZLR 339.(6) In any case where it seems proper to him to do so, the District Court Judge, Justice, Community Magistrate, or Registrar may issue a search warrant on an application made on oath orally, but in that event he shall make a note in writing of the grounds of the application.Thus, an amendment to an application may be made on oath orally. However, in that event the court officer shall "make a note in writing of the grounds of the application". It is common ground that no such note in writing was made by the Registrar. Thus, there is a defect in the warrant directed at Paremoremo Prison. A change to that application may not have been sought on oath, or, if it was sought on oath, it was not properly noted under s 198(6). [29] The Attorney-General relies on s 204 of the Summary Proceedings Act. It provides:204. Proceedings not to be questioned for want of formNo information, complaint, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding shall be quashed, set aside, or held invalid by any [District Court] or by any other Court by reason only of any defect, irregularity, omission, or want of form unless the Court is satisfied that there has been a miscarriage of justice.[30] In R v Wineera,8 the Court of Appeal considered a search warrant where an error was made as to the street number. When the error was discovered the warrant was returned to the Deputy Registrar, who amended the search warrant without having the officer give evidence on oath and without making a record of the grounds for the amendment. The search warrant was then executed. [31] The Court of Appeal considered that the errors were errors of form and fell within s 204. It was clear that the officer could have given evidence on oath as to the reason for the change in the street number, and that the amendment would have been granted. [32] Mr Palmer relied on the decision of R v Kappely,9 where the warrant also contained the wrong street number. Notwithstanding the error the officers went into8 R v Wineera [2005] 2 NZLR 657.9 R v Kappely [2001] 1 NZLR 7 (CA).the premises that had erroneously not been correctly named, and executed the warrant. It was held in those circumstances that s 204 could not be invoked. [33] The present situation falls squarely within R v Wineera. The error in showing the east wing rather than the west wing was an error of form and not of substance. When the error was discovered the police did the right thing and sought an amendment. They did not, as in R v Kappely, wrongly proceed to execute the warrant on premises not named in the warrant. In R v Kappely the police had knowingly searched a property that they were not authorised to search under the warrant. This was a serious error. In contrast the error here is one of minor omission; the application to make the minor amendment not been on oath or there was a failure to note the oral application, or both. There was not, as in R v Kappely, any deliberate flouting of the law. [34] Mr Palmer has pointed to no material demonstrating that a miscarriage of justice occurred in the administration of the warrant. Indeed, no criminal proceedings arose from the searches. Mr Palmer ultimately was not charged. In all the circumstances, s 204 applies. The District Court Judge was correct in concluding that as a consequence of the application of s 204 the warrant executed at Paremoremo Prison should not be quashed or held to be invalid because of the error and omission. [35] Thus question 1(e) was correctly answered yes in favour of the Crown in the District Court.If there was unlawfulness, do s 39 of the Police Act 1958 or ss 26 or 27 of the Crimes Act 1961 apply?[36] These matters were not the subject of any detailed argument from Mr Palmer either at this hearing or, it would seem, before the District Court. Section 39 of the Police Act 1958 provides:39 Protection of members for acts pursuant to process(1) Where any process has been issued out of any Court, or by any Judge, District Court Judge, Justice, Community Magistrate, or Registrar or Deputy Registrar of any Court], no member of thePolice doing anything in obedience to any such process shall be responsible for any irregularity in the issuing of the process, or for any want of jurisdiction in the issuing of the same. (2) On the production of any such process and on proof that it was issued out of a Court, or, as the case may be, that the signature thereto is in the handwriting of the person whose name appears subscribed thereto, and that person is reputed to be and acts as a Judge, District Court Judge, Justice, Community Magistrate, or Registrar or Deputy Registrar of any Court], and that the acts complained of were done in obedience to the process, the Court trying any action against any member of the Police in respect of any act done in obedience to the process shall find a verdict for that member, and the member shall recover his costs of suit. (3) For the purposes of this section, the term process includes any computer printout to which section 88 or section 93 of the Summary Proceedings Act 1957 applies.[37] The District Court Judge held that the section applied because the police officers did not act in bad faith, unreasonably or with malice. On the material before the Judge, this conclusion was the only one available. There was no material before him indicating bad faith or malice or an unreasonable act. It is clear from Baigent's Case10 that s 39 protects police activity pursuant to a search warrant, in the absence of malice or particular unreasonableness. Thus question 1(f) was correctly answered in favour of the Crown.Is the Crown liable under s 6 of the Crown Proceedings Act 1950?[38] Section 6(5) of the Crown Proceedings Act 1950 provides:6 Liability of the Crown in tort (5) No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.[39] The Crown accepts that this section does not provide immunity to the Crown for the actions of its agents committed in bad faith or with malice. In Baigent's10 Simpson v AG (Baigent's Case) [1994] 3 NZLR 688, 715, 716.Case11 it was held by Cooke P that the effect of s 6(5) is that the Attorney-General is not liable vicariously for actions of police officers in executing a search warrant in good faith, although unreasonably. In any event, there is nothing to indicate that the police acted unreasonably. [40] The District Court Judge concluded that the Attorney-General was protected by s 6(5). There being no evidence of bad faith or unreasonableness, that decision was entirely correct.Should the District Court Judge have struck out the second and eighth causes of actions?[41] At the conclusion of his judgment the Judge concluded that it followed from his findings that the warrants were validly issued and validly executed, and because it was not alleged that the searches were carried out with malice or in bad faith, that there was no basis for the second cause of action or eighth cause of action and they were both struck out. It is also the case that there is nothing to indicate that the police acted unlawfully or unreasonably. I observe that there is no need to apply s 39 of the Police Act or ss 26 or 27 of the Crimes Act 1961 or s 6 of the Crown Proceedings Act 1950 as there is no unlawfulness shown capable of sustaining these causes of action against the defendants. [42] Rule 422 of the District Court Rules provides:422 Disposal of proceedingWhere a decision of a question pursuant to an order made under rule 418— (a) Substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or (b) Renders unnecessary any hearing or further hearing in the proceeding or on the whole or any part of any claim for relief in the proceeding,— the Court, at the time of deciding the question or at any subsequent time, may, as the nature of the case requires,— (c) Dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or11 Simpson v AG (Baigent's Case) [1994] 3 NZLR 667, 674.(d) Direct the entry of any judgment; or (e) Make any other order.It is clear then that under r 422 a District Court Judge who has disposed of any part of a claim may dismiss any part of any claim when deciding a question under r 418. That is what the District Court Judge did and he had jurisdiction to do so. [43] The second cause of action sets out various allegations concerning the background of the search warrants, and asserts that Mr Preece knew or ought to have known that he was acting in contravention of the Police Act 1958. It is alleged that the constables executed the search warrant knowing that they were ultra vires and a nullity, unlawful, in breach of s 21 of the New Zealand Bill of Rights Act 1990. It is also alleged that the goods could only be detained for a 90 day period. [44] The Judge had found that the search warrant that had issued was a valid search warrant. The length of the detention of the items seized could not impact on whether the search warrant was valid or not. Therefore, it was entirely correct for him to strike out that cause of action. It was inevitable as a consequence of his conclusions that the cause of action could not succeed. [45] In relation to the eighth cause of action, the pleading again focused on Mr Preece encouraging the constables to execute a search warrant knowing that it was invalid, that the search was unlawful, and that the search and seizure was being conducted in breach of s 21. Again, this pleading could not in the light of the District Court Judge's findings have succeeded. [46] Section 21 of the New Zealand Bill of Rights Act 1990 is also invoked by Mr Palmer in this cause of action. It gives persons the right to be secure against unreasonable search or seizure. On the material before the District Court Judge there was nothing to show that the search and seizure were unreasonable. [47] Thus, I conclude that the District Court Judge was entirely right in striking out those two causes of action, and he had jurisdiction to do so.Conclusion[48] I conclude, therefore, that the District Court Judge was correct when he answered the r 418 questions in terms favourable to the Crown, and struck out the second and eighth causes of action.Further action[49] On the face of the application, the failure of this appeal should bring these proceedings to an end. The application, which was signed by Mr Palmer as consented to, provided in paragraph E:The parties agree that the preliminary questions are the only issues going to liability which require determination in the proceedings, and the plaintiff has agreed to discontinue the proceedings in the event that the answering of the preliminary questions does not impart any liability to the Crown.[50] The questions as answered by the District Court Judge did not "impart any liability to the Crown". For the avoidance of doubt, I find in this appeal that the answer to the preliminary questions does not impart any liability on the Crown. It can be expected to follow that Mr Palmer will discontinue. [51] As part of the hearing of the appeal Mr Palmer presented a seventh amended statement of claim. It is not clear whether the seventh amended statement of claim handed up to me has been filed in the District Court. It appears that in that statement of claim he is now making some allegations of malice and bad faith on the part of Mr Preece and the police officers. There must be doubt whether Mr Palmer will discontinue even though this appeal has been unsuccessful. [52] At one stage Mr Whittington invited me to strike out the entire claim. However, he did not pursue this and he accepts that the Crown did not, in the r 418 application, seek such relief, and that Mr Palmer has not had an opportunity to properly argue the issue. [53] The Crown will presumably argue that any further attempt by Mr Palmer to pursue or amend the claim this proceeding will be an abuse of procedure, given theterms of his consent. However, it is not appropriate that I rule on that matter, or on the extended allegations that Mr Palmer now appears to be making in his seventh amended statement of claim. The appropriate way forward is for the appeal to be dismissed, and then for the Attorney-General to make such application as is considered appropriate in the District Court.Result[54] The appeal is dismissed. [55] The Attorney-General is entitled to costs that are awarded on a 2B basis with reasonable disbursements... Asher J