ROCHFORD V ATTORNEY-GENERAL SUED FOR AND ON BEHALF OF THE NEW ZEALAND POLICE HC NEL CIV-2007-442-454

ROCHFORD V ATTORNEY-GENERAL SUED FOR AND ON BEHALF OF THE NEW ZEALAND POLICE HC NEL CIV-2007-442-454 6 March 2008IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY CIV-2007-442-454BETWEEN JASON PETER ROCHFORD Appellant AND ATTORNEY-GENERAL SUED FOR AND ON BEHALF OF THE NEW ZEALAND POLICE Respondent Hearing: 20 February 2008 Appearances: M Vesty for Appellant F Sinclair for Respondent Judgment: 6 March 2008 at 4 pm In accordance with r540(4) I direct the Registrar to endorse this judgment with a delivery time of 4 pm on the 6 th day of March 2008.JUDGMENT OF MACKENZIE J The Appeal[1] On 25 May 2005, Mr Rochford's house was the subject of a search by Police, pursuant to a search warrant obtained from the Nelson District Court. Mr Rochford was not at home at the time, but his partner, Ms Beecroft, was home, alone. Mr Rochford issued proceedings in the District Court at Nelson against the police, alleging that the search was unlawful and unreasonable, and seeking compensation for breach of his right, under s 21 of the New Zealand Bill of Rights Act 1990 (NZBORA), to be secure against unreasonable search. In a reserved judgment delivered on 30 August 2007, the judge held that the search was unlawful and unreasonable (as police had accepted at the hearing before him). He concluded thatthe appropriate remedy for the breach of s 21 was a declaration, coupled with payment of indemnity costs. He declined to award any compensation. This appeal is against the refusal to award compensation. [2] It was common ground at the hearing in the District Court that the search was unlawful and unreasonable because the affidavit in support of the application was defective in that it did not contain certain fundamental details. The only dispute was as to the appropriate remedy. The judge described the overriding issues he had to decide as being: (a) Does the conduct of the police need to be marked by an award of compensation or will a declaration and payment of legal costs suffice? (b) If compensation is required, should it be at the $15,000 level or only at the $1,000 to $2,000 level (or somewhere in-between)?The Judge's findings of fact[3] The Judge described the key determinant of fact relevant to the extent of unreasonableness as being whether or not the police acted in bad faith. He further said that he needed to consider the level of unreasonableness in relation to both the defects in the affidavit and the manner in which the search was carried out. [4] The appellant had alleged that the search warrant was obtained in bad faith, and for a real purpose other than that contained in the application. Both of those contentions were rejected by the Judge. He said "I do not accept that the warrant was sought and the search carried out for any improper purpose or in bad faith". [5] The Judge noted that the supporting affidavit was sufficiently flawed to nullify the warrant and the errors in it were beyond the "minor or technical" category. He noted the recent guidance on search warrant applications provided by the Court of Appeal in R v Williams [2007] NZCA 52. The defects in the supporting affidavit as conceded by the police were:(a) The deponent did not state his personal belief as to the nature of the items believed to be found, but rather deposed that "police" believed this to be so; and (b) The affidavit did not link the appellant to the address to be searched; (c) The deponent did not identify the sources of his information by name or explain why they were regarded as reliable; (d) The affidavit did not reveal that there had been an altercation between the appellant and NTS or that there was some police concern about theft from NTS. [6] On the claim so far as it related to the circumstances in which the warrant was obtained, the Judge held:[39] Notwithstanding the defects identified, which should have led to the warrant being declined, the defects amount to carelessness rather than bad faith. If the omitted material had been included then a warrant could properly have been issued and Mr Rochford could have had not complaint at all. [40] Accordingly, I regard the unreasonableness so far as it relates to the issue of the warrant itself, as being at the lower end of the range of possible breaches. The submissions on behalf of Mr Rochford to the contrary largely depend on the allegation, which I have not found to be established, that the warrant was sought for a collateral purpose, and in bad faith.[7] On the issue whether the manner of the search itself was unreasonable and, if so, how unreasonable, the Judge described the events which occurred and said:[47] I accept that it would have been a shock for Ms Beecroft to have five police officers (or one or two more if that was the case) arrive at the property unannounced and especially when she was seven months' pregnant. However I do not accept that the search was carried in an improper or unreasonable manner. It may be that to some extent there was a greater mess left than was present beforehand but clearly the place was not particularly tidy on arrival. I do not think there is anything remarkable or outstanding about the way the search was carried out which would bear materially on the appropriate remedy. Had the defects in the affidavit not been present and the warrant been legitimately issued on the basis of the proper information that should have been supplied, then there could be no suggestion that the manner of the search gave rise to any claim.[8] The Judge summarised his conclusion on the level of unreasonableness in these terms:[50] Overall then, I find the level of unreasonableness to be at the lower end of the scale in relation to the defects in the affidavit and I do not find there were any remarkable features of the search itself, which would justify regarding the case more seriously.[9] As the Judge's findings on those issues are not challenged, the sole question on this appeal is whether, in the light of the Judge's findings of fact on these issues, his decision that the appropriate remedy was a declaration and payment of indemnity costs, with no award of damages, was appropriate.The Judge's conclusions on remedy[10] The Judge then went on to consider the appropriate remedy. He first considered whether a declaration of breach of the s 21 right would be an adequate remedy, and reached the following conclusion:[56] In my view, notwithstanding the declaration of breach has some potency, something more is required to vindicate what occurred and the real question is whether that should be by way of order for solicitor/client costs or by compensation.[11] The Judge addressed the question of whether solicitor/client costs or compensation was appropriate. He concluded that an award of solicitor/client costs was the appropriate remedy. In reaching that conclusion, the Judge referred to A-G v Udompun [2005] 3 NZLR 204, where damages were awarded for the detention of a woman at Auckland airport after flying to New Zealand, the detention lasted for some 23 hours, after a long flight, and Mrs Udompun had not been provided with any food for about 10 hours and was not provided with a change of clothing or access to sanitary products. The Court marked the breach of s 23(5) of the Act by an award of $4,000. The Judge also referred to Dunlea v A-G [2000] 3 NZLR 136, where the occupants of a flat which was surrounded by the Armed Offenders squad were awarded sums ranging from $18,000 and $16,000 (for two of the occupants who were detained at gun point and handcuffed) to $1,500 (for three occupants, to reflect a brief but terrifying invasion of the privacy of a resident).[12] The Judge noted that having regard to those cases, any award of compensation in the present case could only be a very modest one, and came to the conclusion that an award of indemnity costs would be a sufficient remedy.The contentions on this appeal[13] Mr Vesty for the appellant refers to the recent decision of the Supreme Court in Taunoa v Attorney-General [NZSC] 2007 70. He accepts that an award of monetary compensation is a discretionary award. He submits however that a declaration and award of costs does not provide the appellant with an effective remedy for the accepted unlawfulness of the search. He submits that the awarding of no compensation was not a decision reasonably open to the Judge. [14] Mr Sinclair for the respondent submits that the correct approach to NZBORA compensation involves a starting point of whether a declaration of breach, either alone or with an award of indemnity costs, is a sufficient remedy. He submits that the breach in this case is not of a kind that made compensation essential.Discussion[15] The Supreme Court delivered its decision in Taunoa the day after judgment was delivered in this case. The judgments in Taunoa affirm the principle that damages are an available remedy for a breach of the rights affirmed by the Act. They make it clear however that damages are not an invariable remedy for such breach. Elias CJ at para 107 noted that it was accepted on behalf of the Attorney General that damages are available "where necessary to provide an effective remedy for breach of rights". She held that in that case, declaratory relief was an insufficient response and that damages were the only practicable effective remedy. Blanchard J said, at paragraph 256, "it may be entirely unnecessary or inappropriate to award damages if the breach is relatively quite minor or the right is of a kind which is appropriately vindicated by non monetary means, such as through the exclusion of improperly obtained evidence at a criminal trial." Tipping J said at para 318 "The defendant must pay what, if anything, is necessary to vindicate the breach ordenounce the conduct concerned or deter future breaches" (emphasis added), and "Although in this field relief is discretionary rather than as of right, it must generally be appropriate to compensate for demonstrable harm suffered as a result of the breach of a right of sufficient importance to be affirmed in the Bill of Rights Act." McGrath J said at para 366 "Selection of the appropriate remedy from those available will involve the making of a principled choice in the exercise of judicial judgment". He further said, at para 368 "The Court's finding of a breach of rights and a declaration to that effect will often not only be appropriate relief but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiff's rights". Henry J expressed general agreement with both Blanchard J and Tipping J on the approach the Court should take regarding an award of damages for a Bill of Rights Act breach. [16] Those statements of principle all make it clear that an award of damages is not invariable. What is required is an assessment by the Judge of all the circumstances in the selection of an appropriate remedy. The inquiry is a fact- specific and case-specific one. It is not appropriate to attempt to formulate any detailed rules as to classes of case in which damages should always be awarded, or in which they should never be awarded. [17] The assessment involves the exercise of a discretion in the application of the general principles set out in Taunoa to the case in hand. That means that on this appeal, the appellant must meet the usual onus in an appeal against the exercise of a discretion, as enunciated by the Court of Appeal in May v May (1982) 1 NZFLR 165. The appellant must demonstrate that the Court below acted on a wrong principle, took into account some irrelevant matter or failed to take into account some relevant matter, or made a decision that was plainly wrong. [18] I do not consider that any error in principle has been demonstrated. On my assessment, the breach involved here can properly be described as capable of falling within one of the categories identified by Blanchard J as situations where an award of damages may be entirely unnecessary or inappropriate, namely that the breach is "relatively quite minor". Here, the Judge's findings as to the nature of the breach are such that the breach can properly be described as being in that category. The defectsin the affidavit, which constituted the only breach, may fairly be described as defects of form rather than substance, in that the Judge has found that if the information had been properly disclosed the warrant would have been obtained. The allegations of bad faith and improper purpose in the obtaining of the warrant were specifically rejected by the Judge. The Judge also held that there was no breach in the way in which the warrant was executed. [19] A relevant consideration as to whether damages are necessary, from a public law perspective, is that a declaration may in itself be a sufficient remedy in the circumstances to vindicate a plaintiff's right. In this case, the extent of the duties on police officers applying for search warrants has been extensively elaborated on by the Court of Appeal in Williams. Clear and detailed guidance has now been given to police officers preparing such applications by that decision. It may be expected that that guidance may be more effective to ensure that a breach such as that in this case will not be repeated than would an award of damages. [20] In this regard, I record that application was made by the respondent to adduce further evidence on this appeal, in the form of an affidavit describing changes in police practice which have followed the Court of Appeal's decision. The admission of that affidavit was not opposed, and leave to adduce that evidence was accordingly granted by me at the hearing. [21] Mr Vesty argues in effect that all of that may be all very well, but it does not compensate the appellant for the breach of his rights. This is a case where no issue as to the exclusion of evidence obtained in the search arises, because no relevant evidence was obtained. But it does not follow from that that damages must be awarded, as a matter of principle. The fact that a practical remedy in the form of exclusion of evidence is available to a plaintiff is relevant to the question of damages, but it does not follow that, as a matter of principle, damages must be awarded when no such practical remedy is available. It is clear that not every breach is to be compensated by an award of damages. Here, the Judge took the view that damages were unnecessary and that an award of solicitor and client costs would ensure that the plaintiff was not out of pocket. That is an outcome which was, in principle, available to the Judge in the exercise of his discretion.[22] I also consider that the appellant has not demonstrated that the Judge took into account an irrelevant matter, or failed to take into account a relevant matter. None of the matters relied upon by counsel fall within either of these categories. Rather, the appellant urges that greater weight should have been accorded to some matters which were taken into account by the Judge. It is not the function of this Court to reassess the weight given to relevant matters. [23] Finally, it cannot be said that the decision is "plainly wrong". The circumstances here were such that, if it were "plainly wrong" to grant a remedy of declaration and indemnity costs, and not damages, in this case, then there would be few, if any, cases of breach of s 21 rights, (at least where exclusion of evidence is not involved), in which a remedy in damages would not be available.Result[24] For these reasons the appeal is dismissed. The parties may submit memoranda as to costs if they are unable to agree."A D MacKenzie J"Solicitors: Crown Law Office, Wellington for respondent Zindels, Nelson for appellant