BUTLER v MASSEY UNIVERSITY ALBANY [2015] NZHC 2287

BUTLER v MASSEY UNIVERSITY ALBANY [2015] NZHC 2287 [22 September 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2014-404-000345[2015] NZHC 2287UNDER the Judicature Act 1908IN THE MATTER of the New Zealand Bill of Rights Act1990BETWEEN JESSE WAIARIKI TEMANAVABUTLERPlaintiffAND MASSEY UNIVERSITY ALBANYFirst DefendantNORTH SHORE POLICESecond DefendantHearing: 14 September 2015Appearances: Plaintiff in personK Laurenson for Second DefendantJudgment: 22 September 2015JUDGMENT OF ASHER JThis judgment was delivered by me on Tuesday, 22 September 2015 at 1 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Law, Wellington.Copy to: Plaintiff[1] Jesse Butler brings this proceeding against the first defendant MasseyUniversity Albany and the second defendant North Shore Police. However, whenthe hearing began Mr Butler accepted that he had not served Massey UniversityAlbany. There is no proof of service on the file, and Mr Butler accepted at the outsetthat he could not succeed against Massey University. Accordingly the claim againstMassey University Albany is dismissed. This means that it is not necessary toconsider the first two causes of action in the statement of claim, which were directedagainst that defendant.[2] The third and fourth causes of action are against the North Shore Police. I set out the pleading in the statement of claim:THIRD CAUSE OF ACTION BY PLAINTIFF AGAINST THE SECOND DEFENDANT: TORTURE20. The second defendant deliberately did not fully meet the minimumstandards in criminal procedure by not informing the plaintiff on thecharge of his arrest and hand-cuffing.21. The second defendant deliberately did not read the plaintiff his rights.22. The second defendant deliberately did not allow the plaintiff to make acall to a lawyer.23. The second defendant deliberately did not provide a doctor for theplaintiffs worsening concussion despite saying so.24. The plaintiff was driven from the North Shore Police station to theWaitakere Police station, going in-and-out of consciousness and neckpins and needles from the prolonged choke and pressure holds.25. The second defendant deliberately lied about his rank, claiming to be asergeant when the plaintiff kept on asking to see the sergeant because ofthe cruel and torturous treatment.26. The impersonation occurred twice with two different police officers.27. The second defendant deliberately made the plaintiff sign documentswith signatures that were just a scribble, as the plaintiff was heavilyconcussed and unbalanced by the neck injury sustained by the attack,and couldn't even see straight.28. The second defendant deliberately prolonged the time spent by theplaintiff in the cells, knowing the plaintiffs condition and the need formedication.FOURTH CAUSE OF ACTION BY PLAINTIFF AGAINST THE FIRST AND SECOND DEFENDANTS: MALFEASANCE29. The first and second defendants conduct and process was deliberate andco-ordinated, and they knew it was. This amounts to malfeasance of theworst kind in breach of the plaintiffs civil and political rights as writtenand intended in the New Zealand Bill of Rights Act 1990.WHEREFORE THE plaintiff claims:(a) Compensation/Damages:(i) of a compensatory nature against each of the first and seconddefendants in the sum of $100,000.(b) Interest at such rate and for such period as the Court thinks fit.(c) Costs on a solicitor and client basis, or on such basis as the Court thinksfit.The causes of action[3] The statement of claim third cause of action pleading consists of a series offactual statements, but does not obviously contain a cause of action. The closest isperhaps an alleged breach of the right contained in s 9 of the New Zealand Bill ofRights Act 1990:9 Right not to be subjected to torture or cruel treatmentEveryone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.[4] The fourth cause of action if read very generously could be seen as setting out a claim based on misfeasance in public office.Background[5] On 17 February 2014 there was an incident in Arran Road, Browns Bay. Mr Butler lived in that street. He was visited by a Mr Callum Blair who oninstructions from Massey University, was seeking to serve a trespass notice onMr Butler. Mr Butler had been angered by Mr Blair and there had been abuse andphysical contact. Mr Blair called the Police. Two officers, Sergeant Sagar andSergeant Turner arrived at about midnight. When they arrived Mr Blair, who was asecurity guard employed by Massey University, was holding Mr Butler. They deposed that Mr Butler was shouting abuse at Mr Blair.[6] It is the events that followed the arrival of the Police that are the subject ofthe remaining causes of action.[7] Mr Butler provided a brief of evidence which became his evidence-in-chief,and gave evidence briefly and was cross-examined. The broad scheme of events isnot contentious. He was being held by Mr Blair when the Police arrived. He wasupset (the Police say he was extremely abusive). Mr Butler was arrested and placedin the Police car. He was then driven to the North Shore Police Station. He was heldthere for a while and then driven to the Henderson Police Station. He was ultimatelyreleased from the Henderson Police Station on the basis of Police bail at 4.18 am thatmorning.[8] Mr Butler does not make any allegations of being physically manhandled bythe Police. His submissions focussed on contradictions in the evidence of the Policeand his claim that in relation to some of the details of events as outlined by the policeofficers, they were wrong. He emphasised the fact that he was not told about hisrights under the Bill of Rights Act when he was initially arrested, and ultimately thathe was informed of these while he was at the Takapuna Police Station.[9] Four police officers gave evidence: Senior Sergeant Stefan Sagar, SergeantBrent Kearney, Sergeant Kenneth Turner, and non-sworn police officer Charlie Hiku.Their evidence did not in material ways ultimately differ very much from that ofMr Butler, and he did not in cross-examination challenge most of what they said.[10] I am satisfied that the Police on arrival found Mr Butler to be both very angryand very abusive. Sergeant Turner described him as being abusive the whole timeuntil arrival at the Takapuna Police Station, yelling and screaming. He stated that theabuse he received was continuous and the worst he had ever had in his 10 years inthe Police. He stated that when he arrested him he advised him that he was underarrest for assault, but did not advise him of any other rights because he was beingcontinually abused. Any advice of rights would have been in the context a waste oftime. He was advised of his other rights after he calmed down, at the TakapunaPolice Station.[11] There is an area of contention between Mr Butler and police officers, whichwas the state of Mr Butler's physical condition at the time. The police officers andthe Police record do not record him being in a condition where he was suffering fromany injuries at the hands of Mr Blair. Mr Butler, on the other hand, says that he hadbeen quite severely injured and concussed by Mr Blair. The Police notes taken at thetime record no such thing.[12] Mr Butler says that he fell unconscious in the car when he was beingtransported from the Takapuna Police Station to the Henderson Police Station. ThePolice evidence and their records show on the other hand him having fallen asleep.[13] Mr Butler was ultimately prosecuted for his actions that night and convicted.That prosecution had its own history, and there was a proceeding in this Courtrelating to it. However, this claim and that claim do not in any material way overlap.Analysis[14] It must be recorded first that there is no evidence to support a number of the allegations. Insofar as it is implied in para 24 that the Police were responsible for making Mr Butler go in and out of consciousness with prolonged choking pressure holds, it became clear when Mr Butler gave his evidence that he did not intend this at all. His condition had been caused by the assaults of Mr Blair, not by anything the Police were doing.[15] Second, there was no evidence that either Sergeant deliberately lied about his rank. They had both passed their sergeant's exams but were awaiting formalconfirmation of their position and therefore were not wearing stripes. There is no evidence that any police officer improperly tried to get Mr Butler to sign documents with signatures that were just a scribble, and there is no evidence that the Police deliberately prolonged the time Mr Butler spent in the cells.[16] I find as a fact that the Police did not exercise any force against Mr Butler,save for that reasonably necessary to handcuff him and get him into the Police car. Iaccept the Police evidence that Mr Butler's excited state and his consistent verbalabuse meant that any reading of rights was a pointless exercise, and this remainedthe case until he calmed down at the Police Station on learning that one of theSergeant's was a former soldier.[17] Section 23(1)(a) provides as follows:23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(a) Shall be informed at the time of the arrest or detention of the reason for it; and[18] I find that the obligation under s 23(1)(a) to inform a person at the time of hisarrest for the reason for it was discharged by the Police at the time of arrest. Section23(1)(b) provides that everyone who is arrested shall have the right to consult andinstruct a lawyer without delay. There is nothing to indicate that the Police did notextend to Mr Butler that right. Equally, there is nothing to indicate that the Policedid not extend to him the right under s 23(1)(c) to have the validity of the arrest ordetention determined without delay by habeas corpus. The evidence is thatMr Butler, after his arrest, was processed and released as soon as possible, given hispreviously excited state.[19] No statement was taken from Mr Butler, thus there is no issue that arises about him being informed of the right to refrain from making any statement, or being informed of that right.Analysis of breach of Bill of Rights[20] Section 23(5) provides that everyone deprived of liberty should be treatedwith humanity and with respect for the inherent dignity of the person. Having heardMr Butler and the police officers I form the view that Mr Butler was treated withhumanity and with respect by them. They had to exercise some force and be pre-emptory with him because he was, I find, entirely out of control on their arrival. Hewas filled with rage against Mr Blair and his anger turned to abuse of the Police aswell on their arrival.[21] There is nothing in their behaviour that comes remotely close to a breach ofthe right not to be subjected to torture or cruel treatment. Section 9 was described bythe Supreme Court in Taunoa v Attorney-General1 as relating to actions that are"truly egregious",2 and that are "to be utterly condemned as outrageous andunacceptable in any circumstances".3[22] For the reasons that I have given the actions of the Police fall far short ofbeing torture or cruel treatment.Analysis of malfeasance claim[23] Assuming that Mr Butler is referring to the tort of misfeasance in public office, it is necessary to consider the elements of the tort as set out in Garrett vAttorney-General:4(a) The defendant must be a public officer.(b) The defendant must have acted deliberately and unlawfully in theexercise or purported exercise of his or her office.(c) The defendant must have acted with malice towards the plaintiff, orwith knowledge or reckless indifference that his or her conduct wasunlawful and was likely to injure the plaintiff.(d) The plaintiff must have suffered damage caused by the defendant'sactions.[24] Insofar as the New Zealand Police is a defendant, it could generously becalled a public officer. However, there is a complete absence of proof of any of the1 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.2 At [297] per Tipping J, with whom Henry J agreed (at [383]).3 At [170] per Blanchard J, with whom McGrath J agreed (at [339]–[340]).4 Garrett v Attorney-General [1997] 2 NZLR 332 (CA) at 348–350; Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thompson Reuters, Wellington, 2013) at 1023.other three aspects of the tort. There is nothing to indicate that the Police actedunlawfully in the exercise of their office, that they acted with any malice towardsMr Butler, or that he suffered any particular damage caused by their actions, save forthe fact of course that he was ultimately prosecuted for his actions that night.Conclusion[25] Mr Butler presented his evidence and his submissions in a courteous andcalm manner. However, his claim is not made out and by a very wide margin. ThePolice acted reasonably on the night in question, and did not breach any ofMr Butler's rights.Late service[26] Through a courier error the statement of defence was served late. Mr Butlerwas not prepared to waive this event. However, a statement of defence wasultimately filed and Mr Butler has had ample notice of this hearing. Under r 1.19 ofthe High Court Rules I grant an extension of time for the service of the statement ofdefence to 24 April 2014, when service actually occurred.Result[27] The claim against the first defendant is dismissed as unserved, withoutopposition from the plaintiff.[28] The claim against the second defendant is dismissed on its merits. Judgmentis entered for the North Shore Police on that claim.Costs[29] I reserve the question of costs. If they cannot be resolved, and the NorthShore Police seek costs, it is to file submissions within 14 days, and Mr Butler is tofile submissions in reply in a further 14 days...Asher J