ROSEVELT V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV 2005-404-002561

ROSEVELT V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV 2005-404-002561 21 July 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-002561BETWEEN JOSEPH ROSEVELT Plaintiff AND THE ATTORNEY-GENERAL OF NEW ZEALAND Defendant Hearing: 14 and 15 July 2008 Appearances: J Dorbu for Plaintiff G A D Neil for Defendant Judgment: 21 July 2008JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 21 July 2008 at 9.30 a.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors:Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140Copy to: J Dorbu, PO Box 105345, Queen Street,Auckland, 1001[1] This is a claim for damages for false imprisonment. The plaintiff says that he was arrested by police officers on 28 April 2005 when he was present with an acquaintance in a retail outlet which sold electronic goods. It is claimed that he was subsequently taken to the Takapuna Police Station where he was subject to detention against his will. [2] Whilst he was at the Takapuna Police Station, as a result of inquiries made of the New Zealand Immigration Service, the police were asked to serve a Removal Order on the plaintiff, who had unlawfully remained in New Zealand after the rejection of an appeal by the Refugee Status Appeals Authority. The Authority's decision was given in relation to a decision of the Refugee Status Branch of the New Zealand Immigration Service which had declined to grant him refugee status. [3] The plaintiff is a citizen of Liberia. The evidence did not disclose where he currently resides. The hearing proceeded in his absence, the defendant having consented to his evidence being given by affidavit. There was some discussion about the implications of that at the outset of the trial. Having heard counsel, I ruled that the fact that the evidence was given by affidavit by consent did not mean that the defendant was unable, by the evidence it called, to challenge the content of the affidavit. Mr Dorbu, at the time, protested that a consequence of my ruling was that he felt "ambushed". [4] I am bound to record that that was an extraordinary submission for Mr Dorbu to make having regard to the facts that: a) The defendant's statement of defence made it plain that the key factual allegations on which the plaintiff needed to succeed were rejected by the defendant. b) The briefs of evidence of the defendant's witnesses, served prior to the trial, made plain the extent of the factual dispute. c) There was nothing to suggest that in conceding that the plaintiff's evidence could be given by affidavit the defendant intended to adoptthe stance that the content of the affidavit would not be challenged. Indeed, the reference that the defendant's counsel made to s 17 of the Evidence Amendment Act (No.2) 1980 at the time the parties were negotiating about the plaintiff's affidavit should have made it quite plain that the defendant intended to challenge the contents of the affidavit. [5] Those issues were fully discussed in the ruling that I made at the outset of the trial and I need not pursue them further now. I should, however, mention another matter that was dealt with on a preliminary basis. That concerned the plaintiff's wish to rely at the trial on two affidavits that had been sworn by the plaintiff's wife in the context of interlocutory applications. The Crown was opposed to that course being followed, and Mr Neil emphasised that much of their content was of a hearsay nature. I inquired of Mr Dorbu as to why the deponent, who I understand remains in New Zealand, could not give evidence orally. Mr Dorbu advised that he was not permitted by his instructions to advise the Court why Ms Rosevelt was not available to give evidence in person. [6] Given the plaintiff's stance, I decided that the affidavits should not be read.The plaintiff's affidavit[7] Mr Rosevelt's affidavit recorded that he first came to New Zealand in 1999, claiming refugee status. He is a citizen of Liberia, but did not have his own passport. So he used another passport, which did not belong to him. He handed that passport to the Immigration Service on arrival and sought refugee status at the same time. That application was declined on 15 March 2001. [8] On 21 June 2002 he married Mrs Rosevelt. His appeal to the Refugee Status Appeals Authority was dismissed in a decision dated 1 October 2001. A work permit that had been granted to him by New Zealand Immigration Service expired on 2 November 2001.[9] Nevertheless, according to Mr Rosevelt, he found work, engaged in gib- stopping and incorporated a company named JRosevelt Fixing Ltd, which operated as a sub-contractor specialising in interior linings in residential houses. He said that at the time of his "arrest" (whether there was an arrest is one of the key factual disputes between the parties) the company had contacts with three organisations in particular. The company has since been struck off the Companies Register following Mr Rosevelt's removal from New Zealand. [10] The principal evidence on which the plaintiff relies as the basis of the present claim was set out at paragraphs 10 to 14 of his affidavit as follows:Unlawful Arrest 10. On the 28th of April 2005, which was a Thursday, I did not go to work. Around 1.00 p.m. I received a telephone call from a Bernard Abebresseh, whom I had met at the Ghanaian Soccer Club in Auckland and became acquainted with. On this particular occasion Mr Abebresseh informed me that he was unwell and could not drive but needed to attend to some matters. He asked if I could assist to drive him around. I later learned that he had been forbidden to drive by police, and that was the real reason for his request. He later confessed this to me while in detention, and I felt used by him. 11. I drove to meet Mr Abebresseh at the Manukau Shopping Mall car part and we drove to the North Shore around Glenfield. Mr Abebresseh entered a Retro Vision electronic goods shop and I followed him into the shop. As we were looking around the shop, two men entered the shop and approached us. They asked who was "JASON". Before one of us had the opportunity to reply to the question, the two men pulled out their identification badges and declared to us that they were Police Detectives from the Takapuna Police Station. The two men informed us that we were under arrest. 12. The two detectives then took us to a waiting car outside the shop and asked us not to talk to each other or make a phone call. They asked us to enter the car and drove us to the Takapuna Police Station. On our way to the Police Station the detectives collected my driver[sic] licence. At the police Station the detectives put us in different rooms. 13. The detectives asked me if I knew who JASON was, and I described the extent to which I knew him. The detectives then said that I was unfortunate to be at the wrong place at the wrong time. They then asked about my immigration status. I explained my status including my efforts to leave New Zealand voluntarily with my family, which were unsuccessful, as described above. I asked the detective to refer to Mr James Ludlum of New Zealand Immigration. The detective then left me in the room for a period of time. Afterwards a man who identified himself to me as Craig entered the room with thedetective. Craig described himself as an Immigration Officer. He showed me a document headed "removal order" and asked if I had seen it before. He then asked me some questions about my circumstances and my family after which he served me the removal order. 14. Again and again after my arrest and before the arrival of the Immigration Officer I asked the Police detective to allow me to call and speak to my wife and he refused. I asked to speak to a lawyer and the detective refused. Then the detectives asked for my fingerprint. I refused and informed him I would not provide a fingerprint until he permitted me to speak to a lawyer. At that point they permitted me to call my lawyer. That was around 8.00 p.m. on 28 April 2005. The police then informed me that they were going to contact my wife.Defence evidence[11] The defence relied on the evidence of four witnesses, two of whom were members of the police and two of whom were, at relevant times, employed by the New Zealand Immigration Service. [12] Detective Sergeant Thompson, who at the time was a detective attached to the Criminal Investigation Branch at the Takapuna Police Station, was contacted on 28 April 2005 by the Auckland Central Fraud Squad. The latter reported that he had been contacted by GEC Finance regarding one Jason Robinson. Mr Robinson was a Nigerian national who earlier that day had submitted what GEC believed was a fraudulent hire purchase agreement at Vince Roberts Electrical, in Wairau Park on the North Shore. Mr Robinson was due to return to the store that afternoon for the purpose of uplifting the goods to be let on hire purchase, which had a value of $10,000. [13] The police were interested in Mr Robinson as a member of a group of suspected Nigerian fraudsters. Detective Thompson asked Detective Constable Christopher Brown to go to the premises of Vince Roberts Electrical to "intercept" Mr Robinson on his return to the store. Detective Constable Brown asked Constable Shane Heath to accompany him. They arrived at approximately 3.10 p.m. and parked opposite the store. While Constable Heath waited in the vehicle, Constable Brown went inside.[14] At about 3.40 p.m. he observed two males of African descent, arriving at and then entering the store where they began browsing. He telephoned Constable Heath to join him. Once Constable Heath arrived, he approached the two males. According to Detective Constable Brown he then identified himself as a police officer and obtained their basic details. He continued:Neither Constable Heath nor I were in uniform. The two men told me their names were Jason Robinson and Joseph Rosevelt. Mr Rosevelt gave his date of birth as 11 April 1969 and produced his driver's licence (No. DA674515).[15] There was an issue raised in cross-examination about the driver's licence. It will be recalled that in his affidavit, Mr Rosevelt said that the driver's licence had been collected by the detectives as they drove to the Takapuna Police Station. In cross-examination Detective Constable Brown conceded that he could not remember whether the driver's licence had been handed to him in the car or in the shop. He also said that he could not remember when he had given Mr Rosevelt's driver's licence back to him. [16] It was Detective Constable Brown's evidence that he informed both Mr Robinson and Mr Rosevelt that he wished to speak to them and that he asked them to accompany him to the Takapuna Police Station. He said that he advised them at the time that they were not under arrest and were not obliged to come to the station with him. However, both had consented to go back to the station, and the detective recorded that fact in his notebook. [17] During a discussion on the way back to the station, Detective Constable Brown said that either Mr Robinson or Mr Rosevelt had asked what was happening. In response, he had again informed them that they were not under arrest and had again asked if they were still willing to attend the station. Both men had agreed to do so. On arrival at the station, they were shown into separate interview rooms. Detective Brown questioned Mr Robinson, but he refused to make a statement. Mr Rosevelt was questioned by Detective Sergeant Thompson. [18] In his evidence, Detective Sergeant Thompson recorded his understanding that Mr Rosevelt had returned to the station voluntarily.[19] Their discussion commenced at about 4.10 p.m. Having identified himself to Mr Rosevelt and explained that he wanted to ask some questions in relation to his association with Mr Robinson, Detective Sergeant Thompson told Mr Rosevelt that he was not under suspicion of having committed an offence, although he had become of some interest given his association with Mr Robinson. He told him that he was not under arrest, but that he would like him to remain at the station while Mr Robinson was being dealt with. He made a note in his notebook to that effect. According to Detective Sergeant Thompson, Mr Rosevelt appeared to be "comfortable with this request", and he appeared "quite relaxed and at ease". His English was good, and he communicated well. [20] In the discussion that followed, Detective Sergeant Thompson asked Mr Rosevelt some questions regarding his association with Mr Robinson. He recorded what Mr Rosevelt told him in his notebook:Not acquainted with Robinson. Met through soccer. Robinson sent a message to Rosevelt via computer asking to be picked up. Didn't know what for or where they were going.[21] Detective Sergeant Thompson said that, as an aside, he asked Mr Rosevelt about his immigration status. Mr Rosevelt told him that he had been denied residency; however, he was hoping a letter he had sent to the Minister would change that. Once again, this reply had also been noted in the sergeant's notebook. [22] As a result of what Mr Rosevelt told him, Detective Sergeant Thompson replied that he would check with Immigration New Zealand and proceeded to do so. He spoke with a Mr Blackman, who was then an employee of Immigration New Zealand. Mr Blackman told him that Mr Rosevelt was an overstayer and that Immigration New Zealand had a Removal Order for service on him. That conversation occurred at about 4.30 p.m. [23] Detective Sergeant Thompson agreed to serve the Removal order on Mr Rosevelt and Mr Blackman said that he would send it through by facsimile. The facsimile arrived at approximately 5.20 p.m.[24] As has been seen, Mr Rosevelt's affidavit had contained evidence that he had been denied repeated requests to call and speak to his wife, and to speak to a lawyer. It was only after he had refused to provide a fingerprint that he had been permitted to call his lawyer. That had been around 8.00 p.m. and the police had then informed him that they were going to contact Mrs Rosevelt. [25] Presumably in response to that evidence, Detective Sergeant Thompson gave evidence that a call had been made to Mr Rosevelt's home telephone number from a number at the Station at 5.23 p.m. that day. The call had lasted for two minutes and 11 seconds. He said that he could not recall either making a telephone available to Mr Rosevelt or making the telephone call himself. However, he thought it was unlikely that he would have made the call himself, as Mr Rosevelt was not detained or under arrest at the time and he was simply waiting for the Removal Order to arrive whilst tending to other tasks. [26] Detective Sergeant Thompson served the Removal Order on Mr Rosevelt at approximately 5.45 p.m. by personally handing it to him. He then told him that he was detained pursuant to the Removal Order and gave him his rights and short caution. He advised Mr Rosevelt of his right to consult and instruct a lawyer in private and without delay, and of his right to refrain from making any statement. [27] Having done that, the sergeant completed the bottom portion of the Removal Order form in which he confirmed its service on Mr Rosevelt. At about 6.00 p.m., an immigration officer, Mr Fennell arrived at the station and interviewed Mr Rosevelt. Following that interview, Mr Rosevelt was held overnight in police custody and appeared in the North Shore District Court the following day. He was then detained at the Auckland Central Remand Prison, pending his removal from New Zealand. [28] Detective Sergeant Thompson subsequently escorted Mr Rosevelt from New Zealand to South Africa on 19 May 2005.The issues[29] In Attorney-General v Niania [1994] 3 NZLR 106 Tipping J summarised the law of false imprisonment in the following passage at 108:False imprisonment occurs when the plaintiff is arrested, detained or imprisoned by the defendant without lawful justification. The process need not necessarily be forceful. If the plaintiff is induced to submit by an assertion of authority on the part of a defendant, that is as much a false imprisonment, unless lawfully justified, as if the plaintiff had been the subject of forcible confinement: see Todd, Borrows, Chambers, Mulgan and Vennell, The Law of Torts in New Zealand (1991) at pp 91-92 and Salmond and Heuston on Torts (19 th ed, 1987) at pp 137-138 and the cases there cited. In such non-forcible cases the plaintiff must show that in the circumstances he or she felt obliged to submit to the instructions or dictates of the defendant. A wholly voluntary submission is insufficient. The plaintiff must submit in circumstances where he or she reasonably considers there is no choice but to submit. That is what the Judge found in this case.[30] In that case, the police had obtained a warrant to search the respondent's house. The warrant was executed at about 1.00 a.m. In an outside shed a box was found containing items consistent with the manufacture of "home-bake". At about 2.30 a.m., the respondent was required to go to the police station for questioning, and was not advised that she was under no obligation to do so. She arrived there shortly before 3.00 a.m. and was taken to the main CIB Office where she remained for a short time. She was interviewed for about 20 minutes and then left in a room to which access could only be gained from the outside by using a key. In fact the room was not locked, but the Judge held that it was perfectly reasonable for her to believe that she was locked in the room. She remained there between two and three hours, during which she was constantly supervised. When she needed to go the toilet a female constable accompanied her. Around dawn she was taken to the police cafeteria under supervision and remained there until 8.00 a.m. when she was told that she was free to leave. [31] The District Court Judge found that from the time she was required to accompany the police until about 8.00 a.m. when she was told that she could leave, she was detained by the police without lawful justification. Although the police alleged that she was fee to leave during the time that she was at the police station, the Judge held that she had in fact been falsely imprisoned.[32] The key to the findings in the Court below was summarised by Tipping J at [5] where he said that the respondent had in fact had no choice but to accompany the detective to the police station. Although the detective had at no time said or done anything which could reasonably be construed as the making of a formal arrest, he had nevertheless led her to believe that she was obliged to go with him and was not free to leave the police station. [33] In the present case the plaintiff asserts that "the two men informed us that we were under arrest". Apart from that, the plaintiff relies on the fact that the police took Mr Robinson and Mr Rosevelt to their waiting car and asked them not to talk to each other or make a phone call. The plaintiff's driver's licence was collected and they were put in different rooms at the station. [34] There is a direct conflict in the evidence between what the plaintiff deposed and what was said by Detective Constable Brown. As has been seen, according to Detective Constable Brown he never purported to arrest either Mr Rosevelt or Mr Robinson. He had, in fact, specifically told them when initially talking to them that they were not under arrest and were not obliged to come to the station. Nevertheless, they consented to go to the station. The advice that they were not under arrest was repeated as they drove to the police station. At that stage, they were asked again if they were willing to attend and both agreed to do so. [35] Detective Constable Brown was cross-examined extensively on his evidence. It was put to him that he would have had good reason to suspect that Mr Robinson had committed an offence and that arresting him would have been lawful. The detective constable agreed with that proposition, but also said that he had asked the two to accompany him to the police station rather than arresting them and had told them that their presence at the station would be voluntary because he wanted to secure their co-operation. It was his preference not to arrest when there was a chance of co-operation. As he put it in response to one of Mr Dorbu's questions about what would have happened if Mr Robinson had said he did not want to come back to the police station:I would have reassessed then as to whether he was going to come back or not. I probably had good grounds to suspect he had committed an offence. Ifind in my experience if you arrest someone right off the cuff they shut up shop from you and do not talk to you. Being in a public place they could flee. So I try to keep it low key and ask for their co-operation.[36] The detective constable gave his evidence in a straightforward and seemingly frank manner. There was, of course, nothing known initially by him or his superiors about Mr Rosevelt's status as someone unlawfully in New Zealand, nor was Mr Rosevelt part of the reason for the presence of the police in the store that afternoon. He had simply gone there with his acquaintance Mr Robinson (or as he knew him, Mr Abebresseh) and was spoken to for that reason. In response to a question from the Bench, Detective Constable Brown said that he may have arrested Mr Rosevelt had he indicated that he would not go to the police station, on the basis of his possibly being a party to Mr Robinson's offending, since he had observed both arrive at the premises together. That may be so, but I am prepared to accept in the circumstances that it was an eventuality that never arose. [37] In the end, having heard the detective constable's evidence in cross- examination I prefer his account of what occurred on the afternoon to that of the plaintiff in his untested affidavit. His evidence was credible and he maintained his position in cross-examination. On his account there had been no need for an arrest, and I do not consider that there was one. In the result, I find that Mr Rosevelt voluntarily accompanied the police officers to the Takapuna Police Station following a request that they do so. [38] Once they arrived at the station, the plaintiff was effectively in the hands of Detective Sergeant Thompson. The question then becomes whether anything was said or done to the plaintiff which could have caused him to believe that he was detained and could not leave. Standing in the way of any such conclusion is Detective Sergeant Thompson's evidence that he informed Mr Rosevelt that he was not under arrest although he asked him to stay whilst Mr Robinson was being dealt with. Mr Rosevelt had appeared to be relaxed and comfortable to comply with that request. [39] Under cross-examination, he conceded that he had not specifically told Mr Rosevelt that he had a right to leave the police station. However, he continued:but the nature of the conversation between the two of us was very low key. My body language, his body language, the circumstances in general, of the reason why he was there, I was under no illusion that he was at the station voluntarily. I was at pains to explain to him the reasons I wanted to speak to him and I guess to make him comfortable that he wasn't a suspect in the fraud. It's hard for me to explain now but there wasn't any tension or anything like that. I tried to make Mr Rosevelt comfortable and from my perspective I was treating it at a low level simply helping another officer out with some inquiries. That was my main focus. However, Mr Rosevelt was at the station and someone needed to speak with him. If at any time I felt he was uncomfortable being there and wanted to leave the station from my point of view that would have been no problem at all. But he was happy to be there. As far as I could tell he was quite happy to be there and co-operate fully.[40] Although Mr Rosevelt spoke in his affidavit of being left in a room for a period of time, he did not give any evidence which would suggest that anything in particular was said or done to him at the station which could have left him with the impression that he was being detained. There was no suggestion that the door had been locked, or that it might have appeared to be so to Mr Rosevelt. Rather, the plaintiff apparently relied, as a matter of fact, on the on-going effect of the "arrest" at the store. I have already decided that there was no such arrest. There was also the assertion that repeated requests to make telephone calls to his wife and a lawyer were refused. However, that evidence is, at least to some extent, contradicted by the evidence of the phone call to his home phone number from the police station that afternoon at about 5.20 p.m. [41] There were here none of the indicia which led the District Court Judge inAttorney-General v Niania to conclude that it was reasonable for the plaintiff in that case to believe that she was detained. [42] On the events that occurred at the station, once again I prefer the evidence of Detective Sergeant Thompson to that of the plaintiff. [43] In the result, the plaintiff has not been able to show that he was detained by the police at any time down to his service with the Removal Order. On the evidence, that occurred at about 5.45 p.m. that evening. [44] There was no dispute that a Removal Order could properly be served on the plaintiff, given that he had unlawfully remained in New Zealand. The defendantcalled evidence from Mr Blackman, who had provided the Removal Order to Detective Sergeant Thompson for service on the plaintiff, and from Ms Natalie Slow, another former Immigration New Zealand employee who recounted relevant matters from the plaintiff's file, and the history of the procedures which had been applied to the plaintiff. There was some cross-examination of these witnesses in relation to the steps taken to serve the Removal Order and whether it would have been appropriate for humanitarian considerations to be taken into account prior to its service. There was, however, no allegation in the statement of claim that the Removal Order had been improperly served. Consequently, there is no need to inquire into those matters.Result[45] The plaintiff's allegations that on the day in question he was falsely imprisoned have not been sustained. The claim therefore fails, and there is judgment for the defendant. [46] At the defendant's request, I reserve questions of costs. If there is an outstanding issue concerning costs that cannot be resolved by agreement, I will receive memoranda from the parties.