HARRIS V A-G HC AK CIV.2004-404-5787

HARRIS V A-G HC AK CIV.2004-404-5787 5 July 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV.2004-404-5787BETWEEN JOSHUA GLEN TERENCE HARRIS Plaintiff AND ATTORNEY-GENERAL Defendant Hearing: 13 December 2005, 7, 8, 9 and 20 February 2006 Counsel: J D Turner and J W J Hope for Plaintiff Joanna Davidson and Wendy Aldred for Defendant Judgment: 5 July 2006 at 4:30pmRESERVED JUDGMENT OF WILLIAMS JThis judgment was delivered by Hon. Justice Williams on5 July 2006 at 4:30pmpursuant to Rule 540(4) of the High Court Rules..Registrar/Deputy Registrar Date: ...A. All the plaintiff's claims against the defendant are dismissed. B. As to costs, it is understood the plaintiff is legally aided for these proceedings (without contribution). It is therefore appropriate to leave it to the defendant to decide what, if any, action should be taken as regards costs.____________________________________________________________________TABLE OF CONTENTS Paragraph Introduction and Claims [1] Facts: (a) 25 September 2003 [8] (b) 14 October 2003 [46] (c) 4 November 2003 [61] District Court proceedings [72] Law and submissions [87] Discussion and findings 1. 25 September 2003 [131] 2. 14 October 2003 [161] 3. 4 November 2003 [171] 4. 14 October and 4 November 2003 [180] Result [185] Quantum [186]Introduction and Claims[1] The plaintiff, Mr Harris, claims that : a) On 25 September 2003, as part of a bail check for a Ms Sheppard, Detectives Wilson and Newton went to the house he was then renting at 1 Oteha Valley Road, Albany, North Shore, entered it unlawfully despite his refusal of consent and refused to leave despite his demand they did so. A fracas developed as a result of which, putting it broadly at this stage, Mr Harris claims he was assaulted, restrained, arrested, searched and wrongly charged. b) On about 14 October 2003 whilst charges for the 25 September 2003 incident were outstanding, Mr Harris' property was again searched. He asserts that the warrant under which the search was conducted was obtained unlawfully or was invalid and the search was accordingly unlawful. c) On about 4 November 2003, again while the charges arising out of the 25 September incident remained undetermined, Mr Harris asserts his car was stopped by Constable Henderson who unlawfully searched both the car and Mr Harris. [2] As a result of those incidents Mr Harris has sued the Police under no fewer than thirteen causes of action, they being : a) Trespass to his property on 25 September 2003, either ab initio or following his express revocation of any implied licence to enter plus an alternative or further claim for breach of his common law rights to enjoy his property and further causes of action for unlawful search of the property at common law and under the New Zealand Bill of Rights Act 1990 s 21. The relief sought in all causes of action is a declaration that the Police unlawfully trespassed on or unlawfullysearched the property or breached his rights plus damages on a "general, aggravated and/or exemplary basis" of $200,000. b) A claim for unlawful assault at common law for what he asserts was a physical and verbal assault by the detectives on him in and outside 1 Oteha Valley Road leading to a fractured shoulder. ACC covered his medical costs but he claims doctor's fees and prescription charges, the same declaration as in the earlier causes of action and exemplary damages of $30,000. c) A claim for common law unlawful imprisonment through his restraint and detention on 25 September, coupled with a claim that his detention amounted to unlawful imprisonment under NZBORA ss 22 or 23(5) and a claim that his arrest was in breach of his common law rights to be free of unlawful arrest plus a claim that his arrest was in breach of NZBORA ss 22 or 23(5). On each he seeks the same declaration and damages as in the first three causes of action plus $500 for property repairs. d) A claim that his request to consult his lawyer at 1 Oteha Valley Road and subsequently on 25 September was not complied with and accordingly gives rise to a claim under NZBORA s 23(1)(b). A declaration to that effect plus the same damages is sought. e) That the officers' strip search of him at the Takapuna Police Station on 25 September was unlawful at common law and was in breach of his rights under NZBORA s 21. The same damages are sought. f) That the laying of seven informations by Police against Mr Harris following the 25 September incident amounted to malicious prosecution in breach of his common law right to freedom from prosecution by Police. The same relief as in the first three causes of action is sought.g) Finally, that the 14 October 2003 search was pursuant to a search warrant which was obtained invalidly or unreasonably and the search was accordingly unlawful. The unlawfulness is claimed to have arisen out of breaches of the Summary Proceedings Act 1957 s 198 or the Misuse of Drugs Act 1975 s 18(1). It is asserted that the search warrant was not issued as required by those sections or, if it was, the warrant was not with the Police at the time of the search and was not produced to Mr Harris when he required to see it. Part of this cause of action also relates to the 4 November 2003 stop and search. Both those incidents are asserted to have occurred when the Police were acting maliciously in bringing and continuing its prosecution under the seven informations. It is said that the quiet enjoyment of 1 Oteha Valley Road by Mr Harris and his tenants was disturbed as a result of which tenants vacated, Mr Harris lost the income they paid and was required to meet his lease outgoings himself for 12 weeks until his lease expired on 12 January 2004. Both incidents are claimed to have been unreasonable or unlawful misfeasance in public office, either by the officers knowingly or being recklessly indifferent to whether they were acting outside the limits of their power. The relief sought is a declaration to that effect plus damages plus compensation for lost income. All causes of action are phrased as being further or alternatives. [3] The defences are a general denial of the factual assertions, an assertion that all Police actions taken on 25 September were pursuant to valid exercise of Police powers including entry to the property and the arrest and pursuit of the plaintiff following an assault in the fracas. Once he had been apprehended, it is asserted that all Police actions thereafter were justified by the Crimes Act 1961 s 317 and other sections. [4] Apart from the factual denials, the causes of action in assault are claimed to be justified by the officers having been given cause to suspect Mr Harris had committed an offence punishable by imprisonment. Accordingly the Crimes Act1961 ss 31, 32, 42 and 315 apply as does the Summary Offences Act 1981 s 39. The officers are pleaded to have used no more force than was reasonably necessary to arrest Mr Harris. Self-defence was raised as was contribution by the plaintiff. The assault claims are pleaded to be debarred by the Injury Prevention Rehabilitation and Compensation Act 2001 s 317. [5] In the unlawful imprisonment, unlawful arrest and ss 22 and 23(5) of NZBORA causes of action, the defence says the officers were entitled to arrest and detain the plaintiff and pleads that Detective Wilson advised Mr Harris of his s 23(1)(b) NZBORA rights after arrest in Oteha Valley Road. He was also advised of his right to consult a lawyer both at that stage and at the Takapuna Police Station but did not exercise that right until 11:20pm on 25 September. [6] The search at the police station was said to have been conducted pursuant to the Police Act 1958 s 57A and the common law power of constables to search arrested persons. [7] The defence is that there was no malicious prosecution, there is no common law right to freedom from prosecution by Police and the 14 October 2003 search was lawful and complied with statutory requirements. The 4 November 2003 search is also pleaded to have been lawful and both incidents, particularly the 14 October 2003 search pursuant to the search warrant, additionally entitled the Police to raise the Crown Proceedings Act 1950 s 6(5) against the claim for misfeasance in public office.Facts: (a) 25 September 2003[8] Mr and Mrs Harris were the tenants of 1 Oteha Valley Road from April 2003 onwards. They lived there with their infant son paying, Mr Harris said, $575.00 per week. For reasons which will become apparent, it is pertinent to note at this stage that the handwritten entry for rent in the rent book could have been read as showing rent of $325.00 per week, the amount actually recorded as paid on 7 and 13 April 2003.[9] Mr and Mrs Harris sub-let rooms in the eight bedroom house to various persons for differing amounts. Again, it will be necessary to consider some detail of that later. [10] From September 2003 one of those living at the house was Ms Sheppard. She paid Mr Harris $150 per week. She had a drug problem and must have been on bail since the Police called at 1 Oteha Valley Road several times weekly to check her presence. [11] On 24 September 2003 at about 8:15pm, Detective Wilson and another went to 1 Oteha Valley Road to check Ms Sheppard was complying with her 7:00pm- 7:00am curfew. The Police knock was answered by another tenant, a Mr Squire. He told Police he did not think Ms Sheppard was there and escorted them through the house to her room. She was absent and was accordingly in breach of bail. [12] On the following day, 25 September, Detective Wilson returned to the property at about 8:10pm to arrest Ms Sheppard for breach of bail. On this occasion Detective Newton accompanied him. [13] On arrival, Detective Wilson went to the front door and Detective Newton to the side of the house. A man arrived, carrying his purchases in a supermarket bag. He proved to be Mr Harris. Neither officer knew him. They are agreed that Detective Wilson showed Mr Harris his identification and asked about Ms Sheppard's presence. He did not tell them to leave at that point. [14] Mr Harris said he had not seen Ms Sheppard about the house that day and thought that, had she breached her bail conditions, she may have been too scared to return. [15] He said he told Detective Wilson he therefore thought Ms Sheppard was absent but told him to go to the ranchslider at the side of the house which gave access to her bedroom.[16] Mr Harris went through the house to Ms Sheppard's room. Entering it, he saw items that may have been drug-related so, to protect her, he picked them up, put them in the pockets of his shorts and went to the ranchslider. [17] The police officers said the lights were on in the room and the curtains drawn. They waited and then knocked. Mr Harris appeared at the ranchslider, opened it and told them that Ms Sheppard had "gone on the run" or some similar phrasing. [18] Mr Harris' evidence-in-chief as to what then occurred was :16. They said they wanted to go inside and have a look even though they could see into the room quite clearly and saw that Susan [Sheppard] was not there. I told them that I was not lying, she is not here. They again said they wanted to come in and search the house. I said that they could not enter and I asked them if they had a warrant. They said that they did not need one. 17. I said that if they wanted to come into my house they were going to have to get a search warrant. I refused to let them enter and stood in the doorway so they could not enter. They then told me again that they did not need a search warrant and were coming in anyway. I thought this was wrong but they were rudely insistent. I then said to them that I was going to ring my lawyer to see what he had to say. 18. As we were discussing this, Constable Newton pushed under my arm and past me into the bedroom. Constable Newton started to look around the house. I could not believe it. As he did this I turned around to go to the phone to call my lawyer. The portable phone was not where it usually was and I was looking for it. I then turned and saw Constable Wilson coming towards me through the hall and into the kitchen. I was pretty angry with this and I said to him "Get out of my house now". It was nothing personal, I felt like my house was being invaded. 19. Constable Wilson refused to leave and warned me that I could be arrested. I cannot remember the exact details but he said I could be arrested for obstruction or resisting him or something. I then went right up to him and said "Get outta my house right now, you arrogant little fuck". I was annoyed and pointed my finger at him so he had no doubt of the message but I did not make to strike him at all. I was simply standing in front of him. 20. As far as I recall we were pretty close to each other and he told me that I would be arrested and he went to grab my hand. I pulled my wrist away from him. Constable Newton who had continued to look around the house during this exchange then came running around thecorner and forcefully tackled me front on. I fell backwards into a wooden door. 21. Almost immediately I remember Constable Wilson pulled out a canister and he sprayed me with pepper spray right into my face and at a very short distance. 22. From then on a fracas occurred very fast and was a bit of a blur but they tried to restrain me and I struggled to free myself from them. The Police tried to pin me up against a wall. We all moved through the kitchen into the hallway and I remember feeling baton blows hitting me on the head, shoulder and arm as I struggled with the Police. As I had been sprayed with pepper spray in my face my vision was a little blurry. It all happened pretty quickly and I just remember trying to stop the baton hitting me. 23. At some point during the struggle, in an attempt to defend myself, I must have grabbed at a large heavy torch light used by one of the officers. It had hit me on the left arm and 2 points on the torch had caused it to bleed profusely. I later learned it was Constable Newton's torch. I think I may have grabbed it and then I used it to swing at a baton to try and stop it from hitting me. Baton blows were still raining down on me. I carried the torch with me even when I later ran out onto the road. 24. By now I was struggling with the Police, in the hallway. Next to the hallway is the laundry. "Rick" Squire was in the laundry at the time. 25. Apparently Rick came to see what was going on. He was behind me and came right up next to me and said "It's not worth it". At the time I was blinded by the pepper spray and was trying to defend myself from being hit by Constables Wilson and Newton and fairly angry at their actions. I was paying little attention to Rick. By now my arm was bleeding and I had taken numerous blows from the Police. 26. I was able to break free momentarily from the Police and dashed into the laundry where Rick was. I went to the laundry as my arm was squirting blood and I wanted a towel to wrap it up as blood was pouring out of two cuts on my forearm. I closed the door behind me and stood holding it closed, and barricaded myself in. It had no lock. The Police were still after me and saying things like "It's not worth it, you should've just let us in, it's not worth it, now look at the trouble you're in" or something like that. They were just trying to force the door open and were pounding on the door with what I believe to be their batons in an attempt to open it. When they could not get in they started swearing at me. 27. I was standing on the other side of the door myself banging a few times on the door and I told them to "get out" and leave me alone. While in the laundry I was trying to call people on my bell-phone. I wanted witnesses to come and see what was going on. 28. 29. The Police then managed to knock a hole in the laundry door with their batons, large enough to spray more pepper spray through. I got another shot of pepper spray in my face which stung quite a lot. I believe it was from Constable Wilson again. I told Rick to open the window so I could get out as I did not want to be hit again in the laundry. There were a lot of sharp objects about and I did not want to land on any of them. 30. Rick opened the window and I just dived out of the window straight out onto the roof to the carport. The towel fell off my arm and I slid down a quite tall but thin tree, and jumped over a fence. I could hear the sirens coming so I ran out onto Oteha Valley Road. My goal was to get to the petrol station as I knew it would have cameras operating there and so if there was any beating or further trouble it could be caught on camera. 31. I was approached by an oncoming Police car. I then just started walking towards it and put my arms up in a "I surrender" movement. Constables Wilson and Newton then caught up with me and they proceeded to hit me further by batoning me on the back of my legs on each side at least six or seven times and yelling "get down". They then verbally assaulted me as they proceeded to restrain me. 32. I was then pushed up against a parked car, arrested and taken back to the driveway of the house by Constables Wilson and Newton. They put me in a police car. There was by now about 8 police cars present. 33. I was then taken to Takapuna Police Station. I was still bleeding but I was not offered or given any medical attention. I do not recall being given any caution, reading or statement of any rights whatsoever. I was dazed and in considerable pain. 34. I was arrested at approximately 8.00pm. I immediately asked Constables Wilson and Newton if I could call and speak with my lawyer they replied "soon" but I was not allowed to call him until about 10.00pm and at the police station . This call was well after I had been searched and then strip searched. 35. At the Police Station I was initially searched by Constables Wilson and Newton. I was not asked whether I wished that to occur and I had still not been given any caution, reading or statement of any rights but merely told to empty my pockets. 36. Earlier that day and before the Police had come I had been down in the basement of the property. I had found a rusty cut-throat razor which I thought was antique and had put it in one of my pockets of my cargo pants. The razor was a very slim one, and I had lots of pockets in my pants and I had forgotten that it was there. This was discovered by the Police when I was searched, as well as the empty bags and a pipe I had collected from Susan's room. I do not recall seeing any straws in the bags, which I think were empty.37. Constables Wilson and Newton then told me to take my clothes off, which I did until I was naked, and then to squat down on the floor. I had no choice but to do so. It was embarrassing and humiliating for me. I had still not been given any caution, reading or statement of my rights. 38. Following the strip search I was put into a cell. 39. ,,, 40. At about 1.00am the Police took me to hospital and I was checked in at Accident and Emergency. As I was admitted to hospital I was given a paper by the Police bailing me to my address and they told [me] that I had to be at court at 9.00 am the next morning or I would be arrested again. 41. I was treated for bruising, had X-rays taken and given painkillers. I spent the night in hospital and cannot recall the exact time I woke up in the morning as I was sedated with painkillers. I had a huge bruise on my leg I had blood all over my clothes from the cuts I received. 42. As well as quite a few bruises, I had a suspected fracture of my right shoulder and some big indentations on my left forearm and some cuts around my body. There were 'dents' and the cuts were in the middle of the 'dents' which had all swollen up. I had a big golf-ball sized lump on my shoulder which was also cut or grazed and bruises all over my legs, the back of my shoulder blade and a few other places. My injuries were documented by the doctor. 43. The bruising probably took a good week and a bit to come right. I suffered pain in my shoulder for a long time afterwards for which I have been to the doctor who has referred me to a radiologist for treatment. He said I had a fractured scapula or something like that, like a chip on my shoulder bone. I had to seek medical advice on several occasions for the injuries of that night. 44. I was seen by a Police doctor on the night of 25 September 2003 and my injuries were noted by that doctor as well, before I went to North Shore Hospital. [19] In cross-examination he adhered to his view the officers were lying in saying he invited them into Ms Sheppard's room. He said they could see all they needed from the ranchslider. Detective Wilson was lying in his evidence that he only became upset when it looked as though the officers might search his bedroom. He said "I was yelling to them to get out of the house, it wasn't about my room it was about my whole house". His statement was: "You're an arrogant little fuck. Get out of the house now" and "the Detective's statement to the contrary is a lie". He agreed he was told to calm down or he would be arrested for obstruction and "I placed myhands on his chest and told him to get out, to fuck off, yes. I'd already told him about seven times". He accepted that it was not until after he pushed Detective Wilson that he was told he was under arrest and he wouldn't allow himself to be arrested but felt he could "use force to get him out of my house". He didn't calm down because he was being attacked, hit with batons and was pretty angry. [20] Mr Squire said he was in the laundry at about 8:00pm. The light bulb had blown and he went into the hall to obtain one from there. As he was fitting the replacement bulb, he said he heard Mr Harris yelling to the Police that "they couldn't come in without a warrant over and over again and to get out of his house". Looking down the hallway he saw Mr Harris in the hall with the two officers behind him. One pushed him up against the wall and the other swung at Mr Harris with a baton. He said he saw blood coming from Mr Harris but conceded in cross-examination he never saw a baton connect with the plaintiff. Mr Harris then wrested the torch from one of the officers. Mr Squire said he told Mr Harris that "it wasn't going to help anything and to let it go". The Police, he said, were calling out "calm down". Mr Harris then ran into the laundry and slammed the door with the Police in the hallway telling him to "give up". Mr Harris hit the door and shouted at the Police. A hole was made in the door. Pepper spray was sprayed through it. He told Mr Harris to "give himself up, that it was not worth it" but the laundry window was open and Mr Harris jumped head-first through it. [21] Unsurprisingly given the pleadings, the police officers have a somewhat different recollection of events. [22] Detective Wilson (who gave evidence in December 2005 prior to travelling with his wife to the United Kingdom for up to two years) said Mr Harris was amicable at the ranchslider and he "understood him to be happy for us to come into the house and check that Susan Sheppard wasn't there". The officers entered. The room was warm, the stereo was playing, there was women's clothing visible. Mr Harris told them that Ms Sheppard had "cleared out" and no one else had been in there. Detective Wilson suspected Ms Sheppard was elsewhere in the house and Mr Harris might be attempting to assist her evade the Police. He told Detective Newton he believed Ms Sheppard was still in the house. They heardbanging elsewhere in the house and Detective Wilson motioned to Detective Newton to investigate. He walked into the hallway from the bedroom. [23] At this point, Detective Wilson said Mr Harris became agitated, pushed past him to follow Detective Newton and shouted "You're not looking in my room" and that "you need a search warrant to look in my room. I'm calling a lawyer". He walked down the hallway in the opposite direction from Detective Newton. Detective Wilson said he told Mr Harris he was welcome to telephone his lawyer, at which point he became angry, stood looming over him, pointing his finger very close to his nose and shouted at him "You arrogant little fuck. I'm calling my lawyer". Detective Wilson said he was intimidated and felt threatened as Mr Harris is physically much larger than he. He told Mr Harris to "calm down and to back off or he would be arrested" which, he said, resulted in Mr Harris stepping closer, lowering his head so they were face to face and shouting "Oh is that right? What are you going to do, you little fuck?". Detective Wilson again told Mr Harris to back off or he would be arrested at which point, he said, Mr Harris pushed him on his chest forcefully and shouted "Fuck off". [24] Detective Wilson's evidence-in-chief of the following events is :14. Until this time I believed we were still in the house with his consent, except that he had made it clear that we were not allowed to look in his room. Had I been told to leave the house prior to this, I would have left. 15. I recovered and stepped towards Mr Harris and told him he was under arrest for assault and grabbed his left wrist to apply an arm bar. Mr Harris shouted "No, I'm fucking not, you're not arresting me". He twisted his body away from me and punched me with his right fist. The punch struck me just below my ribs on my left side and caused me to stumble backwards and let go of his wrist. 16. I got my O/C spray canister out of its scabbard on my belt and sprayed a 1 second burst into his face from about 1.5m away. The spray landed on his face and he twisted away. I put my O/C spray back in its scabbard and got my handcuffs from their pouch on my belt and grabbed the defendant's wrist to try and apply the handcuffs but it seemed that the O/C spray had had little effect as Mr Harris continued to resist my attempts to restrain him. 17. It was around this time that Constable Newton came to my assistance. Constable Newton and I repeatedly shouted at Mr Harris to "get on the floor" and to "stop struggling". We grappled withMr Harris in an attempt to secure his wrists and handcuff him but his size and strength meant that we were unable to overpower him and he was able to get his right arm free. 18. Constable Newton was holding his Police maglite torch in his hand during the struggle. Mr Harris managed to wrench the torch out of Constable Newton's hand and using his right arm began swinging the torch wildly at us in an attempt to strike us. 19. Constable Newton was able to grab Mr Harris' right arm thereby limiting his swing. 20. Throughout the struggle Constable Newton and I shouted instructions at Mr Harris to "stop resisting", "get on the floor" and "you're under arrest". Mr Harris responded by shouting "fuck off", "you're not arresting me", "I have done nothing wrong". 21. We still couldn't restrain Mr Harris, so I stepped back from him and removed my baton from its scabbard on my belt, extended it and struck Mr Harris once on his left forearm. The strike had no effect upon him and he continued to resist violently. I struck him two times to his left forearm with the baton. This was while Constable Newton was hanging off Mr Harris' right arm, but due to his size and strength he managed to struggle free from Constable Newton and slipped into the adjacent laundry. He slammed the door shut and leaned his weight against it. 22. Constable Newton attempted to push the door open but this was met with the defendant slamming the door shut again. Mr Harris repeatedly smashed the police maglite torch against the door shouting "if you come in here I will fucking smash you". 23. The laundry door had no door handle on it and there was a hole approximately 7 cm in diameter where the door handle would ordinarily be. By looking through this hole I could see that Mr Harris had wrapped a towel around his left forearm and there were a lot of drops of blood on the floor. 24. Mr Harris barricaded himself in the laundry and refused to come out, yelling at Police to "fuck off". Through the hole in the door I could also see another male in the laundry. 25. I contacted Police Communications Centre by dialling 111 on my cell phone and requested urgent Police backup and an ambulance. Constable Newton and myself repeatedly told Mr Harris to give himself up and come out. 26. I told him that he was bleeding and needed to get medical help for his arm. I tried to negotiate with him and get him to surrender to Police. Mr Harris continued to be verbally abusive and refused to come out. 27. Upon hearing the sirens of the approaching Police cars, Mr Harris became highly agitated and smashed the Police torch against the inside of the laundry door a number of times. I told Mr Harris togive himself up and that other Police were coming and that he could not escape. 28. With this Mr Harris smashed a hole approximately 10cm in diameter in the middle of the door at around my head height. He was then looking through the hole at Constable Newton and myself. I understanding that Mr Harris alleges that I caused this damage to the door. That is not correct. The hole was caused by Mr Harris himself hitting the door with the Police maglite torch. 29. I withdrew my ASP baton and got my O/C spray out of its scabbard. I held the O/C spray canister up to the hole and directed a burst of O/C spray through the hole and directly into Mr Harris' face. 30. With this, Mr Harris became infuriated and smashed the torch against the laundry door and shouted "fuck you". 31. I heard a number of loud thumps from inside the laundry. Constable Newton looked through the round hole in the door - the hole where the missing door handle would have been – and shouted "he's going out the window". 32. I ran to the front door, which was approximately 2 metres from the exterior of the laundry window just in time to see Mr Harris jump from the walkway outside the laundry window, onto an adjacent carport roof. 33. He ran across the carport roof and jumped down the back of the carport into the dark unlit back yard. I saw that he was still carrying Constable Newton's maglite torch. 34. I saw Mr Harris going over the top of a 6-foot corrugated iron fence into the backyard of a neighbouring property. The top of this fence was the sharp edge of corrugated iron and was very uncomfortable to scale. 35. I called for him to stop and give himself up. He continued over the fence. Constable Newton and I scaled the fence and pursued him through the property and onto the footpath of Oteha Valley Road. 36. Once on Oteha Valley Road, Mr Harris dropped the Police torch on the ground and began walking up Oteha Valley Road. Constable Newton and I caught up to him a few seconds later and shouted at him to "get down on the ground" and "lie down". 37. Mr Harris refused to comply with these instructions and continued walking along the footpath I once again extended my ASP baton and struck him on his left thigh 3 times to try and force him to the ground but it seemed to have no effect and he continued walking. 38. Constable Newton and I grabbed each of Mr Harris' arms and tried to apply arm bars however, once again, due to his size and strength we were unable to force his arms behind him.39. We struggled with him and managed to hold him against a parked car on Oteha Valley Road until back-up arrived. Two Police cars arrived and with the assistance of a Police dog handler and another officer we managed [to] force his arms behind his back and apply handcuffs to his wrists. 40. After he had been handcuffed, I walked him to the police car. Almost as quickly as he had become angry and violent, Mr Harris became co-operative and apologetic stating "I'm sorry, I just got too angry too quickly". 41. Mr Harris was very red in the face and asked for some water. Someone got him a cup of water and, as he sat in the back of the Police car, I tipped the water into his face and eyes to help get the pepper spray out of his eyes. After this I gave him his rights by telling him that he had the right to refrain from making a statement, he had the right to consult and instruct a lawyer without delay and in private and that he'd be given an opportunity to exercise these rights as soon as practicable. 42. 43. At 8.36pm I returned with Mr Harris to the Takapuna police station . Constable Newton did not accompany us in the car 44. Mr Harris alleges that upon arrest he immediately asked Constable Newton and myself if he could speak with his lawyer, Gary Gotlieb, but was not allowed to call him until about 10.00pm at the police station. I do not recall Mr Gotlieb's name being mentioned at any stage by Mr Harris, or him asking for a lawyer. The first I knew of Gary Gotlieb representing Mr Harris was at the initial North Shore District Court hearings. 45. It would not have been practicable for Mr Harris to speak to a lawyer immediately in the back of the Police car as at this time he was handcuffed, he would not have been "in private" and he had not yet been searched for weapons etc. Furthermore the only communications device present was my personal cellphone. If Mr Harris had asked to see a lawyer, which he didn't. I would have taken steps when I got back to the station to facilitate that. 46. 47. In this instance it only became practicable for Mr Harris to "consult and instruct a lawyer in private" after he had been thoroughly searched to remove any potential weapons or drugs. This is critical to protect the safety of both Police staff, other persons in custody and Mr Harris himself. 48. In searching Mr Harris at the Takapuna police station , I conducted a pat-down search of him and [in] his pockets I found 24 empty plastic snaplock 'gram' bags, a small metal tin containing a short length of plastic straw, and a rusty cut-throat razor with a blade of approximately 12 cm in length.49. I asked Mr Harris why he had the knife and he replied that he had found it and that he did not have a reason for carrying it with him 50. Due to the drug paraphernalia and cut-throat razor being found on Mr Harris, I requested the Custody Sergeant's permission to conduct a strip search of Mr Harris. I was concerned about drugs being in his possession and any other potential weapons. The Custody Sergeant agreed and I conducted the strip search. 51. I strip searched Mr Harris in a private cell in the presence of Constable Newton. As Mr Harris took his trousers off I observed a glass meth pipe about 15 cm long fall out of the waistline of his trousers. I picked up the pipes and Mr Harris handed me his trousers and I checked through the pockets. 52. Mr Harris alleges that he was told to take all of his clothes off until he was naked and then to squat down on the floor. My normal practice when conducting a strip-search is to request the person to remove their clothing one item at a time – usually starting at the top of the body and have each item of clothing handed to me to conduct a detailed search of the pockets, compartments, seams and hems. Once the person is completely undressed I request them to squat for 2-3 seconds to ensure that they have nothing concealed between their legs. As soon as this is complete I hand the person's clothing back to them and they can immediately dress themselves. 53. In Mr Harris' case I recall requesting him to remove his clothing in the order of his t-shirt, then trousers. He was not wearing underwear. I got him to squat briefly before giving him back his t- shirt and trousers to put on. This strip-search process was done in a private cell in the presence of another male Police officer and myself and was conducted with the utmost respect for his humility and dignity and to minimise any embarrassment or humiliation. 54. After the strip search, I cautioned Mr Harris by telling him that he was not obliged to say anything but that anything he did say may be given in evidence. I asked him whose the meth pipe was. He said it was his. He refused to answer any other questions. 55. After the strip search I took him to a handbasin to wash off any remaining O/C spray and handed Mr Harris over to the Custody Sergeant for processing. In my presence the Custody Sergeant asked Mr Harris if he wanted a doctor to look at his arm where the skin was broken. Mr Harris looked at his injured arm and then stated "No, I'll be alright". [sic.] 56. The loose leaf charge sheet records an arrest time of 2010 hours and a received time of 2100 hours. Part of that charge sheet was completed by me. I would have done this at the time I handed Mr Harris over to the Custody Sergeant, that is within minutes of the stated received time of 9pm. 57. The Notice to Person in Custody has also been signed by me. That would have been completed and handed to Mr Harris for reading andsigning at the same time as the charge sheet was completed, that is within minutes of the stated received time of 9pm. 58. Having handed Mr Harris to the Custody Sergeant, I had no further contact with Mr Harris that evening. 59. As a result of the punches Mr Harris delivered to me I suffered bruising to the area just below my ribs on the left side. 60. Mr Harris says he told us from the outset that we could not come into the house without a warrant. This is not correct. The fist time he made any reference to Police needing a warrant was after I asked him if Ms Sheppard was in his bedroom. This was after Mr Harris had invited Constable Newton and myself into the house to confirm she was not present. 61. If Mr Harris had said we couldn't come in without a search warrant, there is no way I would have entered the bedroom or the house. I did not understand him to have any concerns about us looking in other parts of the house. It was clearly his bedroom that we were not to look in. 62. The first time that Mr Harris said anything to me to indicate that I was to get out of the house altogether was when he pushed me and told me to "fuck off". After that, when we were trying to arrest him, he told us to "get out" and "fuck off" a number of times.[25] In cross-examination Detective Wilson said the first mention of a warrant was after he had been invited into the house and moved into the hallway from Ms Sheppard's room. He denied saying that they did not need a warrant to enter and repeated they would not have entered without consent. [26] Detective Wilson denied grabbing Mr Harris when he was first told to get out, saying that "he was standing over me with his fingers in my face and there was no way I would grab his hand and initiate physical contact at that point. He was a lot larger than I am, it wouldn't be sensible". Mr Harris then said he intended to call his lawyer and Constable Wilson said he was welcome to do so. At that stage there had been no physical touching. He said he was only told to "fuck off" at the time Mr Harris pushed him. That meant "we were no longer welcome on that property and that we should leave. However by pushing me he assaulted me and I subsequently arrested him for that". He said he first grabbed Mr Harris' wrist after being pushed and told to "fuck off" and it was at that point he told him he was under arrest. He then sprayed him and tried to apply handcuffs.[27] Detective Wilson denied ever swearing at Mr Harris or anyone else, saying he tried not to swear in his personal life and would not have done so in his professional life. [28] Detective Newton gave a similar account. Like Detective Wilson, he said in cross-examination they could only see about a third of Ms Sheppard's room when Mr Harris partially pulled the curtain back from the ranchslider. Mr Harris was blocking the entrance. He said Mr Harris was standing at the ranchslider when they asked to have a look inside. "He stepped back and let us into the room and said 'Fine'." He admitted that in reply to any query as to whether they needed a search warrant he said that "neither Detective Wilson nor myself would have said that because warrants relate to property and we were looking for a person". He denied sneaking under Mr Harris's arm when he said he intended to phone his lawyer but he accepted that he said "I'm going to call my lawyer" when they were both already in the bedroom. He denied they knew they had no authority when Mr Harris was shouting about his lawyer and a search warrant and that they were told to leave when they entered the property. [29] Detective Newton said the first mention of the need for a search warrant was when he was investigating the knocking sounds. He confirmed Mr Harris' anger, his overbearing stance and his pushing Detective Wilson's chest. As he approached the pair in the hallway, Mr Harris did not tell them to leave at that point. He also confirmed the pair's unavailing efforts to restrain Mr Harris. He was too strong and was telling them to get out of his house. This, Detective Newton said, was the first such instruction he heard and at that stage, having witnessed the assault, he took the view the officers were entitled to arrest the plaintiff. He accepted the officers lost control of the situation after Mr Harris shoved Detective Wilson in the chest and they tried to arrest him. Detective Newton also confirmed the Police torch being wrestled off him with Mr Harris then swinging it at the officers. It was Mr Harris who smashed the hole in the laundry door. He said "we tried to cajole him out but our attempts were met with abuse".[30] Once Mr Harris left the house, they pursued him and tried to force him to the ground. Detective Newton accepted that he struck him on the back of his legs with his baton to try to effect this. [31] Detective Newton confirmed what happened when the knife and drug utensils were taken from Mr Harris at the first search and also observed the strip search. [32] It will be necessary to discuss the various versions of those events in detail later. [33] The contrasting versions of what occurred after the parties arrived at the Takapuna police station has been earlier recounted. [34] There is, however, a documentary trail which also assists in deciding what occurred that evening. [35] The earliest version of events is the Police O/C Spray Report which, filled out by Detective Wilson after his return to the station, refers of course to the earlier use of the spray. Headed "Offence: Assaults Police" it says Police attended 1 Oteha Valley Road at 8:10pm on 25 September. It recounts the use of manual force plus the baton and handcuffs and describes the bruising to both Messrs Harris and Wilson plus the broken skin on the former. Boxes are ticked for the use by Mr Harris of alcohol and drugs. The "N" box is circled as to whether a spray warning was given. Two bursts are recorded. [36] An accompanying report dated 26 September – perhaps to assist the prosecution - said Mr Harris "invited Police into the address to search" for Ms Sheppard because "Police believed that the associate was still present in the Harris' bedroom and approached the room". It said that Mr Harris became aggressive and punched Detective Wilson, and was thereupon arrested for assault and punched Detective Wilson again. He tore the torch out of Detective Newton's hands, swung it at Police and was sprayed. The report includes details of the items found on Mr Harris.[37] A supplementary report of the same date appears to have been prepared by Detective Wilson shortly after Mr Harris' first appearance in the District Court. It largely reflects the Detective's evidence in this case. In particular it says that Mr Harris invited Police into his house during the conversation at the ranchslider and that Mr Harris' former calm state changed when he followed Detective Newton down the hallway objecting to search of his room. It was at that stage he said a search warrant was required and advised his intention to telephone his lawyer. This report, too, records the first physical contact as being Mr Harris pushing Detective Wilson, following which he was advised he was under arrest, his objection and the punch to Detective Wilson's torso. At that point the report says that Mr Harris' level of resistance increased from 'active' to 'ominous'. Once the torch was swung at the officers the report said that Detective Wilson "believed that Harris was capable of causing serious physical injury or death". The officer's view was that Mr Harris's reaction to the incident was due to his being under the influence of methamphetamine. [38] Mr Harris says the entries in those reports relating to him having taken alcohol and drugs are false, but, when questioned about those entries, Detective Wilson said only Mr Harris could have been the source of that information. [39] Next, there is the Police watchhouse report which records Mr Harris being "received" by the watchhouse-keeper at 2108 hours. The watchhouse-keeper has noted on the form "cut on arm – not really in pain – doctor called", information which he said must have been derived from Mr Harris. Detective Wilson marked the form to suggest a slight level of intoxication on Mr Harris' part from taking alcohol some three hours previously though the watchhouse-keeper's notation on the charge sheet suggests his view was that Mr Harris was not under the influence of any substance and a Prisoner Management Assessment form apparently prepared about 2240 hours has no entries for drugs or alcohol but describes Mr Harris as being both withdrawn and agitated. [40] The notes on the Prisoner Management Assessment form recorded Mr Harris being on medication for panic attacks and being in pain from cuts to the body. It says "doctors were called but all were uncontactable". But at 2306 hours a doctorsaw Mr Harris, describing his injuries in words and diagrammatic form. The doctor suggested Mr Harris be transferred to North Shore Hospital for x-rays and treatment. Mr Harris telephoned Mr Gotlieb at 2320 hours. The watchhouse-keeper's book notes Mr Harris was bailed at 2350 hours to appear in the North Shore District Court next day. Immediately afterwards Police took him to North Shore Hospital. [41] The Notice to Person in Custody served on Mr Harris that evening informing him of the charges he was facing and repeated the standard NZBORA rights and caution. [42] Mr Harris said he was given the Police Bail form as he left for hospital. He was x-rayed, treated and discharged some time after 6:00am. He produced photographs of his injuries. The North Shore Hospital Discharge form described his injuries as a laceration to the left forearm and "probable undisplaced fracture of acromial process of scapula" but the clinician noted "no fracture was seen on your x- rays". The injuries were said to have arisen from his being struck on his "left arm, shoulder and trunk with torch and baton". He was advised to see his GP within a few days. The radiologist's report was to the effect that "no definite fracture is visible" but the radiologist could not "completely exclude an undisplaced crack fracture". [43] Mr Harris saw his GP who referred him for radiology on 30 October 2003. The shoulder was found to have a "right rotator cuff lesion, original x-ray suggested fracture of acromiom". [44] ACC accepted liability for most of Mr Harris' costs but he had to pay his GP $30.00 on 30 October and a further $35.00 on 19 April 2004. His GP records him saying a few days after 25 September that he was "assaulted by the Police last Thursday" after saying that they "couldn't come into his house without a warrant but they did and in resisting them he sustained multiple bruising". [45] As a result of the events of the evening of 25 September 2003 Mr Harris was charged with seven counts including assault with a weapon (the torch), assault on a constable in the execution of duty (2 charges), obstructing a constable in theexecution of his duty, resisting arrest, possession of an offensive weapon (the cut- throat razor) and possession of a pipe for the purpose of committing an offence against the Misuse of Drugs Act 1975. The result of those prosecutions will be later discussed.(b) 14 October 2003[46] In September 2003 Sergeant Inness heard from an informant that Ms Sheppard was using and dealing in methamphetamine and cannabis from 1 Oteha Valley Road. She had numerous convictions for drug-related charges and was awaiting trial on charges of possession of methamphetamine for supply. [47] As a result, on 14 October 2003 he applied for and, at 2141 hours obtained, a search warrant from a Justice of the Peace entitling Police to search the premises for, amongst other things, controlled drugs and drug paraphernalia. Having obtained the warrant, he went to the premises later on 14 October 2003 with other Police staff and executed it. Neither Detectives Wilson or Newton were members of the party and said they knew nothing of this incident. Sgt Inness had never heard of Mr Harris before 14 October. [48] Constable Dustow was one of the search party on 14 October 2003. He, too, knew Ms Sheppard and her record but knew nothing of Mr Harris. He did not know Detective Newton at the time. He knew of Detective Wilson but could not recall anything of him. He knew Constable Henderson who stopped Mr Harris on 4 November 2003 well, but has never spoken to him about Mr Harris. [49] Constable Norton was the third member of the search team on 14 October. She was O/C Exhibits and listed items of interest to the Police found in the house including those found in Ms Sheppard's and Mr Harris' rooms. She did not know Mr Harris before, and has not dealt with him since. [50] The warrant was in form SP50 mandated by the Summary Proceedings Act 1957 s 198. The copy produced in evidence was initialled above the printed notation"Justice of the Peace" and was endorsed by Sgt Inness as having been executed on 14 October 2003 at 2350 hours. [51] Mr Harris said when the officers arrived at 1 Oteha Valley Road he was told they were going to search the property and, when asked if they had a search warrant, he was handed a piece of paper which, as it turns out, was the unsigned copy of the warrant. He thought it was a valid search warrant and did not resist. [52] Mr Harris, Ms Sheppard and the other occupants of the house were gathered together in the lounge where they were given standard NZBORA rights and cautions. [53] In Ms Sheppard's room a number of items were discovered which the officers thought may have been drug-related despite Ms Sheppard saying some powder uplifted was a health product. However, Ms Petricevich, an ESR scientist, gave evidence that on analysis the items taken from Ms Sheppard's room variously contained cannabis and methamphetamine. The orange powder was MDMA. [54] Mr Harris asserted in his evidence that Police discovered no drugs at 1 Oteha Valley Road on 14 October 2003 as a result of the search. But Constable Dustow found a small quantity of white powder in a "point" bag underneath Mr Harris' bed. He suspected it was methamphetamine. He found a length of straw in the baby's crib. In the lounge, Mr Harris told him the powder was herbal and was not his as someone was playing a trick on him. [55] However, as part of disclosure Mr Harris later received a letter from ESR to Police dated 26 September 2005 certifying that on 31 October 2003 the laboratory received standard drugs envelopes from Sgt Inness with a file reference name as "HARRIS/JOSHUA Glen" and saying that, of a straw and a self-sealing plastic bag enclosing white powder in the envelopes, the former bore traces of methamphetamine and the powder was .4 grams of that controlled drug. [56] Turning to the mechanics of the search warrant application, after considerable difficulties on the part of the defendant, the original search warrant was located in mid-December 2005 and then disclosed to the plaintiff.[57] Sgt Inness produced the application. It was addressed to a named Justice of the Peace. It set out the grounds on which the application was based. It included details of contacts and drug purchases from Ms Sheppard by an informant, and gave it as the officer's belief that at the premises Police would find evidence of cannabis and methamphetamine offences, details of which were set out. [58] The copies of the search warrant application put in evidence were certified as true copies by the Registrar of the North Shore District Court because the original is normally left with the issuing Justice of the Peace for onwards transmission to the Court. Two copies of the search warrant itself are created. One is signed by the issuing officer. The other is unsigned and is left with the occupier. The reason for handing the occupier an unsigned copy is to protect the identity of the issuing officer. The signed copy of the warrant, however, is taken to the premises when the warrant is being executed and produced but retained by the officer-in-charge. [59] Mr Harris accepted that Sgt Inness gave him a "Notice to Occupier" which said it was a copy of the search warrant and notified him that items had been seized under the warrant and an inventory was available. [60] Sgt Inness confirmed in evidence that Mr Harris had never been arrested or charged with any offence following the 14 October search, largely because he was then facing a number of unlawful sexual connection and indecent assault charges. (He was acquitted on all those in January 2004). He said a decision was taken not to charge Ms Sheppard for the drugs found that evening as she was already on charges for similar offences with a substantial number of warrants out for her arrest. It was suggested in evidence that Ms Sheppard was in prison at the date of this hearing.(c) 4 November 2003[61] As mentioned, Constable Henderson was the Police officer involved in the 4 November 2003 incident. He said at that time he did not know Detectives Wilson or Newton and knew nothing of the earlier incidents between Mr Harris and the Police. He did not know Mr Harris resided at 1 Oteha Valley Road prior to that day.[62] Constable Henderson said that on 4 November he was asked by a CIB officer to conduct surveillance of the property at 1 Oteha Valley Road and record comings and goings because of suspicions Ms Sheppard was dealing drugs at the premises. When what turned out to be Mr Harris' vehicle left at 11:57am, he followed it about 1.8km to the Northern Motorway where the carriageway split into two lanes. He said the car indicated a right turn and pulled into the right hand turning lane followed by the constable but, without warning and while still indicating a right hand turn, Mr Harris veered sharply into the left hand lane in front of another vehicle. That caused the constable to activate the siren and affix the flashing light to the car roof. When the lights and siren were activated, Constable Henderson said Mr Harris turned and looked at the Police car behind and then alongside him instructing him to pull over, but Mr Harris made no attempt to stop or slow down. He carried on for about 2km until pulling into a petrol station. [63] On that day Mr Harris said he was driving along 1 Oteha Valley Road with his son in the car. He heard a siren. He did not see a marked police car, but saw the driver of the car behind him put a flashing light on the car roof. Thinking he had done nothing wrong, he initially slowed. He did not stop. He then realised it was the Police and the car was pursuing him. His child was upset at the siren. As Mr Harris pulled into a petrol station the Police car stopped behind him and Constable Henderson approached. He gave Mr Harris a traffic offence notice for failing to stop for red and blue flashing lights and a siren. According to Mr Harris, Constable Henderson described him as a "loser and a liar", put his hand on his shoulder and arrested him for failing to stop. He said that he "can only think that he'd been following and observing me from 1 Oteha Valley Road and had tried to stop me and gain some sort of incriminating evidence against me". [64] Mr Harris said Constable Henderson then searched the car and himself. He said he did not consent but felt he had little choice with his son present. No drugs or stolen property were found even though, as part of disclosure in relation to this case, he received a Police report saying the Police attempted to stop him "due to a drugs/and property matter". The report said a baseball bat and four methamphetamine smoking straws were found on searching the plaintiff's car.[65] Mr Harris said Constable Henderson told him to follow him to Glenfield Police Station where he was detained for a couple of hours with his son, answering questions and was then handed the traffic offence notice. He made the point that he was not then and never has been charged with anything relating to drugs or stolen property. [66] Constable Henderson's version is that he had a conversation with Mr Harris outside the vehicle about the unsafe lane change and his failure to stop. Mr Harris contended his lane change was not unsafe. Constable Henderson told him the Police had power to stop any vehicles on the road at any time and he had been stopped because of a traffic infringement pursuant to the Land Transport Act 1998 s 114. He denied it was because of any wish to question him. He said if Mr Harris had not executed the unsafe lane change he would not have stopped him but simply continued tailing him to obtain intelligence. He denied calling him a "loser" or a "liar" either there or at the Police station. He arrested him for failing to stop. He was joined by another officer. Constable Henderson said that he asked Mr Harris for his "informed consent to search his vehicles for drugs and stolen property and told him he had no obligation to consent". He said he then gave him the NZBORA warning and Mr Harris said " 'Yes' to him searching his car". He was adamant he obtained Mr Harris' consent before the search. He said "I am not a junior constable, I've been around for a long time and I certainly would not be searching anybody's vehicle without express authority because any evidence gained is inadmissible, there is no point". [67] The officers then searched the vehicle and found the baseball bat inside the driver's door, told Mr Harris it could be an offensive weapon and "explained again that he was not required to consent to the search continuing and he said it was ok." The other officer found the straws in the car. [68] Constable Henderson said his concern for the child led him to invite Mr Harris to drive to the police station. He did not have a cellphone to lend Mr Harris to seek assistance. After waiting for him to purchase diapers, Constable Henderson led the way to the Glenfield Police Station. There he gave Mr Harris further opportunities to find a babysitter and again gave him the NZBORA warningand a caution. Mr Harris accepted the invitation to telephone a lawyer but consented to an interview, giving a number of explanations for his driving and his failure to stop. He terminated the interview when his roadside explanation was put to him. [69] Being reluctant to process the arrest with Mr Harris' son still at the police station , Constable Henderson decided to summons the plaintiff. [70] He did not charge Mr Harris in relation to the bat or drug utensils there being, in the constable's view, doubt as to whether the former might have been an offensive weapon. There had been no acknowledgement of possession of the drug utensils. [71] The charge arising out of the 4 November 2003 incident was to be heard with those arising out of the 25 September incident but was withdrawn. Constable Henderson said the withdrawal of the charge against Mr Harris was without his knowledge and was as a result of a "plea bargain" in respect of other charges.District Court proceedings[72] In preparation for the hearing in the District Court, certain Police memoranda were circulated concerning the matter. They were disclosed in the run up to this hearing. [73] Mr Harris complained to the Police Complaints Authority shortly after 25 September 2003. The Authority declined to take action pending disposal of the District Court proceeding. The complaint is apparently still unresolved pending completion of this case. Police Professional Standards memoranda to prosecutors asked them to "Please avoid the situation of withdrawing charges simply because the complainant has withdrawn his/her PCA complaint" but went on to say "if the facts clearly do not support a charge presented and it is inappropriate to proceed then as an act of good faith the charge should be withdrawn". [74] Mr Harris said he thought Police should have reconsidered the charges against him before proceeding to a defended hearing but Sgt MacDonald, an experienced prosecutor who appeared for the Police at the District Court defendedhearing on 3 March 2004, said that if he had thought the charges should not be prosecuted he "would not have hesitated to withdraw them". Sgt MacDonald withdrew the charge of failing to stop but was unable to remember why he took that action. Specifically, he could not recall the "plea bargain" to which Constable Henderson referred. He considered there was sufficient evidence to prosecute Mr Harris on the balance of the informations. [75] Most of the witnesses who gave evidence at this hearing also gave evidence at the District Court. The exception was Ms Sheppard who was called as a defence witness. [76] As is to be expected, their evidence largely mirrored that given at this hearing though there were variations. Both Detectives Wilson and Newton said Mr Harris invited them into Ms Sheppard's room. They believed she was elsewhere in the house from the sounds and circumstances earlier described and walked further into the house, at which point Mr Harris became abusive, aggressive and told them they were not to look in his room. On being told to calm down, Mr Harris swore further and pushed Detective Wilson. The balance of events were described by the officers in very similar terms to the evidence given at this hearing. [77] In cross-examination Detective Wilson said the first mention by Mr Harris of telephoning his lawyer was after the officers were in the hall or kitchen area. [78] Detective Newton acknowledged that at about the time the trio were at the ranchslider Mr Harris spoke of his intention to telephone the lawyer and his belief a search warrant was required. He said Mr Harris was told they were looking for a person not property. That conversation occurred before Mr Harris became agitated within the house. The following exchange occurred :And when that occurred, when he saw you inside he became very angry and told you to eff off and not come in?. No, he had invited us in and he became agitated when we had gone, I'd gone past him because because I'd heard the noises inside the house, he then became agitated and said we're not searching his bedroom and to eff off. Well do you accept that some time before that point there had been discussions of whether you needed a warrant to come in the house and hewas talking about talking to his lawyer?. Yes there was a conversation to that effect. He in fact was saying to you – You can't come in unless you've got a warrant, wasn't he?.. Yes. And you said you don't need a warrant and he said – I'm going to go and talk to my lawyer about that?. No he said – You need a search warrant. I said we don't need a search warrant, or Constable Wilson would have, that we were looking for a person, not property. THE COURT: Was that at the door or in the house? THE WITNESS: No, we were already in the house at that stage. XXD MR GOTLIEB: What I'm saying to you that Mr Harris will say is he never in any way invited you in, which is quite clear on the basis he's saying you need a warrant, and you just came into the house no matter what as he was going to ring his lawyer?. But we were already inside the house having been invited in by him when he said that we needed a search warrant. Well I put it to you he never invited you in, you just made your own way into the house, and you say that's not so? That's correct, I will say that's not so.[79] Detective Newton denied the first physical contact arose with Detective Wilson pushing Mr Harris. [80] Mr Harris' evidence to the District Court was very much as to this Court. His response to the officers' request to come into the house was to query whether they had a warrant. They said one was unneeded. He replied "I think you need a warrant if you want to come into my house". One then pushed passed him. He then went to the kitchen to get the telephone to ring his lawyer. Detective Wilson followed him towards the kitchen at which point Mr Harris told him to "get out of my house now", whereupon Detective Wilson threatened him with arrest or obstruction. [81] Mr Squire said that when taking the replacement light bulb out of the hallway, he glanced into Ms Sheppard's bedroom and saw the officers at the ranchslider talking to Mr Harris. He estimated the interval from the Police being at the ranchslider to Mr Harris yelling they "couldn't come in without a warrant" as being about 20 seconds. His first recollection of hearing a discussion about the necessity for a warrant was when the officers and Mr Harris were in the hallway shouting at each other, though in re-examination he said he had heard one suchcomment before the trio were in the hallway. His time estimate in re-examination of the interval between seeing the trio at the ranchslider and first hearing the comment that the officers could not enter without a warrant was "within a minute, 35 seconds, 40 seconds". [82] Following completion of the hearing, Judge B A Morris asked for legal submissions. The Police submissions were prepared and filed by the Legal Section. [83] In her reserved judgment delivered on 20 August 2004 Judge Morris defined the issue as whether the matters giving rise to the charges against Mr Harris occurred after revocation of the constables' licence to enter the property and, if they did, whether the evidence of those offences should be excluded for breach of s 21 NZBORA. [84] Her factual findings were :[7] The constables both gave evidence they went into Ms Shepherd's [sic.] room after Mr Harris invited them in to search it. Mr Harris says that he did not do that and that right at the outset he told them they needed a search warrant. He said he then went to ring a lawyer and turned around to see them in his hallway. When he told them they needed a search warrant, he said, they told him that a warrant was not required. [8] Both Constables Wilson and Newton recall Mr Harris only became agitated when they left Ms Shepherd's [sic.] bedroom and went further into the house into the hallway. They had indicated a desire to search further in the house as Constable Wilson thought he heard noises inside. They both also agreed that at that point, that being prior to any events that give rise to these charges, Mr Harris said that they needed a search warrant and that he would phone a lawyer. [9] At this stage the constables' recollection of what was said differed. Constable Newton recalled that Constable Wilson told Mr Harris that they did not need a search warrant because they were looking for a person. Constable Wilson denied saying that. He recalled he told Mr Harris he was welcome to phone a lawyer and that it was after that indication the agitation, abuse and assaults commenced. [11] Both police officers themselves fairly acknowledged Mr Harris had told them they required a search warrant to search his house. It was at that point he became agitated and, to use Mr Harris' expression, he then told them to "fuck off". In that expression, coupled with his agitation and demands for a search warrant, he made it abundantly clear that at that point,if not earlier, he was requiring the police officers to go. He revoked the licence to remain on the property. [12] In those circumstances it is not necessary for me to determine whether Mr Harris told them at the doorway they could not enter. It is clear on the facts that he had revoked the licence prior to the acts that gave rise to these charges.[85] She then turned to whether the Police had a right to be on the property when the alleged offences occurred, relying on R v Hills (1999) 16 CRNZ 673, 666. She referred to s 21 and authorities stressing the importance of domestic privacy and saying unlawful entry and search of houses by Police would usually be regarded as unreasonable (R v Pou [2002] 3 NZLR 637, 641-642 para [20]). That led her to conclude:[19] I find the licence was unmistakably revoked by Mr Harris' increasing agitated conduct and emphatic expletives. Taken collectively that demonstrated that the police officers were no longer welcome to remain in Mr Harris' home. [20] Following that revocation they did not leave the premises and any intended search thereafter would have been unlawful. In the circumstances I also find the purported and intended search was unreasonable. This was a private home involved where there was no need for urgency and where the occupier was very agitated by the attempted search of his property. Given the great weight to be placed upon the sanctity of privacy in one's own home, I do not consider their conduct to be properly characterised as reasonable in those circumstances. [21] I should add, however, I can well understand the police officers' desire to search the property for the wanted person, nor do I find this was a deliberate flouting of the law. The officers may well have believed they would continue with the search in the circumstances but they were mistaken in that belief. [22] Accordingly there was a breach of s 21 of the Bill of Rights Act 1990 and there is, I find, a close and causative link between that breach and the conduct that gave right to these charges. That was an immediate link at the house but even in relation to the search of Mr Harris at the police station, that was directly linked and brought about as a result of the conduct in the house and the consequent arrest that relied upon that conduct. [23] I find therefore the search was unlawful and unreasonable and the evidence was linked to the breach sufficiently to warrant its exclusion.[86] The balancing exercise required by R v Shaheed [2002] 2 NZLR 377 resulted in exclusion of the evidence and dismissal of all the charges. The Police conduct, ingood faith but mistaken, was weighed as was the fact that the offences were against officers who had been held not to be entitled to be present, and the fact that Mr Harris "clearly over-reacted and was the author in part of his own misfortune". The fact that the offences were against Police was considered as was the relative lack of seriousness of the charges. The "lack of seriousness means the public interest is less keen" in maintaining the prosecution.Law and Submissions[87] Mr Turner's submissions for Mr Harris followed an unusual course in naming the principles of law or cases on which Mr Harris relied but not elaborating on the way those authorities applied to the facts of this case. [88] In relation to the first cause of action alleging the officers' trespass to 1 Oteha Valley Road through either their entry on to the property or their failure to withdraw within a reasonable time following revocation of any implied licence, Mr Turner relied on Hills where Police visited a house on two nights to check compliance with a curfew by a woman who was staying there. The next night the officers called at the house to be met by the tenant who told them to "fuck off". She went to make a phone call with the police remaining at the door. On her return she produced a dog and encouraged it towards the officers. She appealed successfully from conviction for assault with a weapon, namely the dog. The Court of Appeal said :In passing we refer again to his [the Judge's] remark that they [the Police] were within their rights to explore every possibility to ascertain if the person they were endeavouring to locate was in the house. It is enough to say that this proposition is doubtful. It can be accepted that, notwithstanding the hour, the police had an implied licence to go to the door of the house in the execution of their duty, namely checking on whether Ms Jacom was observing the condition of her bail. But we have not been referred to anything which would authorise them to conduct a search without the consent of the occupier.[89] The ambit of the implied licence was described by Cooke P in Howden v Ministry of Transport [1987] 2 NZLR 747, 751, in the following terms:An influential modern case in which a doctrine of implied licence was either invented or articulated is the decision of a Divisional Court of the Queen's Bench Division in Robson v Hallett [1967] 2 QB 939. Police officers investigating an offence had entered the garden of a house, through anunlocked gate, and the sergeant had entered the house itself by permission of the occupier's son. The occupier himself revoked the latter invitation. On his way out the sergeant was assaulted by the son, there was a melee and the constables came to his assistance, a breach of the peace being of course occurring. It was held that the officers were all acting in the execution of their duty. Lord Parker CJ said that the officers, "like any other members of the public, had implied leave and licence to walk through that gate up those steps and to knock on the door of the house . . . [T]he occupier of any dwelling-house gives implied licence to any member of the public coming on his lawful business to come through the gate, up the steps, and knock on the door of the house". The licence could be revoked, but a reasonable time to leave the premises must be allowed. Diplock LJ pointed out that the implied licence could be excluded by, for instance, a notice "No admittance to police officers"; but he regarded it as so simple a point that the combined researches of counsel had not revealed any authority for it that ". . . when a householder lives in a dwelling-house to which there is a garden in front and does not lock the gate of the garden, it gives an implied licence to any member of the public who has lawful reason for doing so to proceed from the gate to the front door or back door, and to inquire whether he may be admitted and to conduct his lawful business".[90] To similar effect, in R v Bradley (1997) 15 CRNZ 363, 367, the Court of Appeal said:A citizen's fundamental right to privacy embraces the sanctity of his or her home. That right, generally encapsulated in the statement "an Englishman's home is his castle", cannot be violated by those persons in positions of power without authority founded in the law. Hence, every invasion of private property is a trespass unless properly authorised. Such a principle has been recognised as fundamental since Entick v Carrington (1765) 19 State Tr 1029; 95 ER 807, and has been reaffirmed in decisions too numerous to recite. But as critical as it is, the principle is not absolute. At times and on occasions privacy is forced to yield to the wider interests of the community, particularly the public interest in the detection and prosecution of crime. Thus, to meet the community's insistent demand to combat crime and the public's readiness to accept a greater degree of intrusion upon privacy to achieve that end, police excursions on to private property which would otherwise be trespasses have been excused by developments in the common law, or the enactment of statutory powers authorising searches under the authority of search warrants, or warrantless searches in restricted and closely controlled circumstances. [91] Then, after reference to Howden v MOT [1987] 2 NZLR 747, 751 andRobson the Court of Appeal continued (at 367-8):Such an implied invitation, however, extends no further than is required to permit communication with the occupant of the premises, and it can be negated by express reference or revoked altogether. Where the police act in accordance with this implied permission their action is not regarded as anintrusion upon the privacy of the occupier. The implied licence effectively waives the privacy interest which the occupier might otherwise have in his or her home. The essence of this concept, as we apprehend it, is to permit any member of the public, including a police officer, on legitimate business to come on to a property for the purpose of communicating with the occupier. This purpose was recognised by Sopinka J, delivering the judgment of the majority of the Supreme Court of Canada in R v Evans [(1996) 45 CR (4 th) 210]. The Court endorsed the statement of the Court of Appeal of British Columbia (at p 217) to the effect that the purpose of the implied leave is "to enable the police officer to reach a point in relation to the house where he can conveniently and in a normal manner communicate with the occupant". Thus, the Supreme Court held (at pp 217, 218) that the implied invitation to knock extends no further than is required to "permit convenient communication with the occupant of the dwelling". Only those activities that are "reasonably associated with the purpose of communicating with the occupant" are authorised by the implied licence. it is to be borne in mind that this "exception" to the inviolability of the principle that a person's "home is his castle" exists to serve the public interest in the effective investigation of offences and the punishment of those responsible. The scope of the licence cannot be defined without regard to that "public interest". While this factor cannot be permitted to enlarge the implied licence beyond what is reasonable in the circumstances, it militates against the adoption of an unduly restricted definition Secondly, as the purpose of the implied licence is to enable persons, including the police, on legitimate business to enter the property to communicate with the occupier, the nature of that business cannot be disregarded. On the part of the police, it may include the making of inquiries, a request to be admitted to the premises, or permission to perform some other act on the property. Consequently, notwithstanding that the implied licence as framed in Robson v Hallett provides police officers with the implied licence available to any member of the public, the scope of the implied permission for a police officer to pursue his or her legitimate business will not necessarily be the same as the implied licence for, say, a postman or stranger merely seeking directions. The lawful business of each differs, and with that difference, the occupier's expectation of privacy may also differ. The scope of the authority to enter may vary so as to permit that which, having regard to the householder's reasonable expectation of privacy, is reasonable in the circumstances.[92] In Pou (at 641, para [17]) the Court of Appeal emphasised that entry into a home may not always come within the ambit of the implied licence but can do so if there is consent. [93] In Dallas v R (1996) 3 CRNZ 204 a constable called at the appellant's address to enquire about an offence. The appellant answered his knock and was told why the constable was there. The constable invited him to the Police Station forinterview. The appellant refused and advised the constable that if he was not under arrest the constable was not welcome at the address. The constable arrested him. Holding subsequent questioning admissible, the Court of Appeal observed (at 207) : we cannot accept that the constable was a trespasser when he arrested the appellant He was at the house under an implied licence. The appellant did not unequivocally withdraw that licence, but told the constable that unless he was under arrest the constable was unwelcome. There is no suggestion that there was any lapse of time between the statement by the appellant and his arrest. In those circumstances the situation had not become one in which the constable was required to withdraw rather than carry out the arrest.[94] Leading counsel for the defendant, Ms Davidson, submitted that on the facts Mr Harris consented to the officers' entry into the house and that there was no legally effective revocation of the licence or no reasonable time elapsed for the officers to withdraw following revocation or any revocation was contemporaneous with Mr Harris's commission of an assault. She relied on Lambert v Roberts [1981] 72 Cr App R 223, 230 where officers pursued a driver on to his property for a breath test. He told them on several occasions they were on private property and accordingly he believed they were trespassers and had no right to administer the test. At first instance, the police were held to be trespassing and accordingly had no right to require the test. On appeal, Donaldson LJ upheld the factual findings but also said an alternative view was that the appellant was "simply disputing the right of the police officers to require a breath test on private property but was not effectively revoking their licence". [95] Ms Davidson's research diligence enabled her next to submit it was a question of fact whether use by an occupier of the phrase "fuck off" is sufficient to terminate the implied licence. (Snook v Mannion [1982] RTR 321, 324, Gilham v Breidenbach [1982] RTR 328, 331). In Fullard and Roalfe v Woking Magistrate's Court [2005] EWHC 2922 (Admin), it was held to be a question of fact whether the implied licence was revoked when the words used were "you can fucking get out of my house", or similar. And in Coster v Attorney-General (HC WN CP144/95 5 March 1998), constables went to Mr Coster's address to discuss an alleged offence with him. He was arrested, became abusive and told the constables to "fuck off". His subsequent claim for unlawful arrest was dismissed, Doogue J holding (p 7) :The plaintiff has quite failed to satisfy me that the use of the particular term of abuse was a clear indication to the constables that they should leave his property. I appreciate that the standard of proof is the balance of probabilities, but the term in question was capable of being used and understood in different ways from just a simple term of abuse, to a suggestion that the constables withdraw themselves slightly from the plaintiff, to a suggestion that the constables depart the scene without there being necessarily any intention whatever to revoke their implied licence to be upon the plaintiff's property. There is no acceptable evidence that the plaintiff at any time used any clear language requesting the constables to leave his property. The plaintiff has therefore failed to satisfy me that he revoked the implied licence of the constables to be upon his land, and the consequence is that all causes of action dependent upon his allegation that he was unlawfully arrested must fail.[96] The second cause of action for common law unlawful search of property was said to be based on Entick as discussed in Dunlea v Attorney-General [2003] NZLR 136, 151, para [41]. [97] Ms Davidson submitted New Zealand law does not now admit of a common law right of privacy against entry onto property by police and, in any event, the plaintiff faced causation problems. She did not develop her submission that no such cause of action exists. [98] The third cause of action for unlawful search under s 21 of NZBORA was based on Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR 667. Ms Davidson's response was that the success or otherwise of that cause of action was a question of fact and, in any event, no relief should be allowed since Mr Harris has already received relief by way of dismissal of the District Court charges. [99] The fourth cause of action for common law unlawful assault was said to be based on Haywood v O'Keeffe [1993] 1 NZLR 181 (presumably the passage at 191- 193) though Mr Turner did not develop that submission and the facts are well removed from the present. [100] Ms Davidson said the Police accept that Mr Harris was subject to intentional application of force by being sprayed and hit with batons but asserted they were lawfully justified because they were entitled to arrest Mr Harris and did not useunreasonable force or were acting in self-defence or defence of each other relying on the Crimes Act 1961, ss 31 (arrest by constable pursuant to statutory powers), 32 (arrest by constable of person believed to have committed offence), 42 (preventing breach of the peace), and 315 (arrest without warrant). [101] The Summary Offences Act 1981, s 39, also empowers constables to make warrantless arrests of persons whom they have good cause to suspect of committing offences against the Act including, amongst others, ss 9 (common assault), 10 (assault on Police or other officers) and 23 (resisting Police or other officers). [102] She submitted the onus was on the Police to show the officers had the necessary suspicion and reasonable grounds for it but the onus was on the plaintiff to show the discretion to arrest had been exercised improperly. She further submitted the force used in this instance was reasonable in the circumstances and was necessary for the officers to protect themselves and each other. [103] She further submitted that Mr Harris's conduct contributed to the application of the force, and accordingly the Contributory Negligence Act 1947, s 3 applied to reduce any damages to which he might otherwise have been entitled. [104] The fifth cause of action for common law unlawful imprisonment was said to be based on Haywood, Blundell v Attorney-General [1968] NZLR 341, Willis v Attorney-General [1989] 3 NZLR 575, 579, and Everitt v Attorney-General [2002] 1 NZLR 82. [105] While accepting that any restraint of liberty can amount to false imprisonment, Ms Davidson submitted the central question was the lawfulness of the detention, not how the arrest was effected. Use of unreasonable force does not, of itself, render an arrest unlawful. (Simpson v Chief Constable of South Yorkshire Police "The Times" 7 March 1991). She submitted that on the facts, Mr Harris's arrest was lawful, as was his detention at the Police Station. She pointed to the lawfulness of the detention never being challenged. And she again submitted the plaintiff faced causation difficulties.[106] The sixth cause of action for breach of ss 22 and 23(5) of NZBORA by unlawful imprisonment was also said to rest on Baigent's Case plus Neilsen v Attorney-General [2001] 3 NZLR 433. [107] Ms Davidson submitted Mr Harris's detention only commenced once he had been subdued on Oteha Valley Road. None of the matters pleaded could amount to detention in breach of s 23(5). Although Mr Harris, through counsel, raised the duration of his detention at Takapuna Police Station, that was not pleaded in any cause of action. [108] The seventh cause of action for common law unlawful arrest was based onHaywood, Niao v Attorney-General (1999) 5 HRNZ 269, Craig v Attorney-General(1986) 2 CRNZ 551, and Duffy v Attorney-General (1985) 1 CRNZ 599, the last two of which relate to unlawful arrest and the last of which held (at 608) that continued detention is lawful if the police conduct is reasonable. [109] Ms Davidson noted that this cause of action was a partial repetition of the fifth cause of action and relied on her submissions in that regard. [110] The eighth cause of action for breach of ss 22 and 23(5) of NZBORA claiming unlawful arrest was also said to be founded on Nielsen. [111] Ms Davidson again noted this claim was a partial repetition of the sixth cause of action also claiming unlawful imprisonment under NZBORA and again relied on her earlier submissions. [112] The ninth cause of action was for claimed unlawful denial of Mr Harris's right to a lawyer under NZBORA s 23(1)(b), that denial being pleaded to have occurred in the property and later in Oteha Valley Road. R v Mallinson [1993] 1 NZLR 528, 532, was relied on. [113] Ms Davidson made the point that Mr Harris was never "detained" in the property and accordingly s 23(1)(b) was inapplicable. In any event, he was free topursue his expressed intention to check the position with his lawyer had he chosen so to do. [114] She accepted there was a factual dispute as to when Mr Harris was advised of his rights to obtain a lawyer following his arrest. She made the point that it was impracticable for those rights, even though given, to be acted upon in the police car. Detective Wilson's evidence was that he advised Mr Harris of those rights again at the earliest practicable opportunity once the pair were at the Takapuna Police Station but received no request by Mr Harris to telephone Mr Gotlieb. Detective Wilson then handed Mr Harris over to the watchhouse-keeper. Sergeant McIntyre said he received no request from Mr Harris to telephone a lawyer during the period he was in the watchhouse until he telephoned Mr Gotlieb at 2320 hours. That was the first practicable opportunity given Police efforts to arrange for a doctor to attend the station. In any event, since Police did no more than detain Mr Harris during that period and did not interview him, she said he suffered no prejudice in that sense. [115] Finally, Ms Davidson made the point that all the humiliation, distress, anxiety and loss of self-esteem claimed were pleaded to have occurred at 1 Oteha Valley Road, not thereafter. [116] The tenth cause of action alleging common law unlawful search of Mr Harris at the Takapuna Police Station by the strip search was said to be based on the discussion by the Court of Appeal in Mayfair Ltd v Pears [1987] 1 NZLR 459, ofReynolds v Clarke (1725) 1 Stra. 634, 636; 93 ER 747, 748. Unfortunately, Mayfairis concerned with negligence, res ipsa loquitur and Rylands v Fletcher (1868) LR 3 HL 330 not with unlawful search, Reynolds is not discussed in Mayfair and in any event Reynolds is a case in trespass, not unlawful search. [117] The defendant took the stance that there is no common law right to the privacy of person against the search as pleaded. In any event, Mr Harris himself removed his clothes for the strip search on request and without objection.[118] The eleventh cause of action pleaded breach of s 21 of NZBORA by unlawful search, again relating to the strip search. Mr Turner relied on R v Jefferies [1994] 1 NZLR 290. [119] Ms Davidson submitted there was, factually, no breach of s 21, particularly when the pat-down search had elicited evidence of Mr Harris being in possession of drug-related utensils and a possibly offensive weapon. In addition, she submitted the police action was justified by the Police Act 1958, s 57A which relevantly reads:57A General search of person in custody(1) Subject to subsection (4) of this section, where any person (in this section referred to as the detainee) is taken into lawful custody and is to be locked up in Police custody, a member of the Police may conduct a search of that person and take from him all money and all or any property found on him or in his possession, and may use or cause to be used such reasonable force as may be necessary to conduct that search or take any money or property. (4) No search shall be conducted under this section unless the detainee is at a police station, or in any other premises, or in any vehicle, being used for the time being for Police purposes. (5) Nothing in this section shall limit or affect the right at common law of a constable to search any person upon that person's arrest.[120] The twelfth cause of action alleged malicious prosecution at common law by the Police or Detectives Wilson and Newton laying and prosecuting the seven charges brought against Mr Harris as a result of the events of 25 September. Reliance was placed on the decision in Ham v Attorney-General (HC HAM CIV 2003-419-321 19 July 2005, Laurenson J), an unsuccessful malicious prosecution claim where the Judge noted (at 44) the elements of the tort. As set out in Todd et al Law of Torts in New Zealand (4th ed. 2005, p 775, para 19.2.02) these are:There are five elements to an action for malicious prosecution. The plaintiff must prove that: (i) the defendant prosecuted the plaintiff on a criminal charge; (ii) the criminal proceedings terminated without the plaintiff being incriminated;(iii) the defendant had no reasonable and probable cause for bringing the proceedings; (iv) the defendant acted maliciously; and (v) the plaintiff suffered damage as a consequence of the proceedings.[121] Ms Davidson submitted that at common law the Police is not vicariously liable for torts committed by their officers because officers are independent servants of the Crown not servants of the Police (Fisher v Oldham Corporation [1930] 2 KB 364, Enever v The King (1906) 3 CLR 969, 977.) though the Crown is vicariously liable for the torts of such officers (Crown Proceedings Act 1950, s 6(3)). [122] She submitted Mr Harris had not made out the third, fourth, and fifth elements of the tort. There was reasonable and probable cause for Mr Harris to be prosecuted, no malice had been proved, and any damage Mr Harris suffered was only questionably within the range of damages allowed in malicious prosecution cases as defined in Savile v Roberts (1698) 1 Ld Raym 374, 378, 91 ER 1147, 1149- 50.) Ms Davidson submitted the pleaded losses of preparing for and attending the defended hearing, travelling in that regard and foregoing employment opportunities were not made out on the evidence. [123] The thirteenth and final cause of action alleging misfeasance in public office was said to be based on Niao and Hobson v Attorney-General [2005] 2 NZLR 220, 243-6, paras [103]-[116]. [124] Ms Davidson said the 14 October 2003 search was executed in accordance with a valid search warrant and in compliance with the procedure required by the Summary Proceedings Act 1957, s 198. Judicial notice was required to be taken of the issuing Justice's signature (Evidence Amendment Act 1945, s 11), and, in executing a warrant issued by a Justice of the Peace, the officers were undertaking responsibilities of a judicial nature or in connection with the execution of judicial process and accordingly the Crown was immune from liability (Crown Proceedings Act 1950, s 6(5) Baigent's Case.)[125] The elements of the tort of misfeasance in public office have been refined in a number of fairly recent cases such as Garrett v Attorney-General [1997] 2 NZLR 332, 350 and Rawlinson v Rice [1997] 2 NZLR 651. As analysed by the learned authors of Todd (op.cit, p 801, para 20.2), the elements of the tort are:20.2 Misfeasance in a public office the defendant must be a public officer; the defendant must have acted deliberately and unlawfully in the exercise or purported exercise of his or her office; and the defendant must have acted with malice towards the plaintiff, or with knowledge that his or her conduct was unlawful and was likely to injure the plaintiff. In many cases a further requirement is proof that the plaintiff has suffered damage. However, in cases involving interference with a "constitutional" right the conduct is actionable without proof of damage.Indeed, the House of Lords recently re-affirmed that misfeasance in public office was never actionable without proof of material damage. That includes financial, physical or mental losses but not distress or injured feelings (Watkins v Secretary of State for the Home Department [2006] 2 All ER 353 para 134-138). [126] Ms Davidson submitted on the facts that the officers acted lawfully, none acted deliberately or unlawfully in exercising the powers of their office nor did they act with malice and Mr Harris had failed to establish any damage flowing from the incident. [127] The same submissions applied to the 4 November 2003 incident. [128] Ms Davidson went on to submit that, even were the plaintiff successful on a factual basis in relation to any of his causes of action, most of the damages were barred by the ACC legislation and the circumstances fell well short of entitling Mr Harris to exemplary damages as defined by the Privy Council in Bottrill v A [2003] 2 NZLR 721, 728, para [20]. That was particularly the case where any liability established would be no more than vicarious (S v Attorney-General [2003] 3 NZLR 450, 473-4, paras [88]-[91]). The plaintiff's contributory contribution was a relevant factor (Craig at 564).[129] She also submitted that, even were the plaintiff's claims to be made out, the declaration sought coupled with the dismissal of the District Court charges against him was sufficient vindication of his rights. No award of damages was justified. [130] Ms Davidson was also strongly critical of Mr Harris' calculation of the quantum of his special damages.Discussion and Findings 1. 25 September 2003[131] Despite the number and complexity of the claims brought by Mr Harris and the issues raised on his behalf, this is a case which stands or falls on what the evidence shows were the actions of the various participants on the three occasions, particularly the events of 25 September 2003 and their sequence. [132] It is convenient, then, to return to the events of the evening of 25 September 2003 to make findings on the evidence as to what happened that evening and in what order. [133] On the evening of 25 September 2003 it is common ground the officers went to the ranchslider giving access to Ms Sheppard's room and were there met by Mr Harris. [134] What he did not know, and they did not tell him, was that, unlike the previous night's visit, the purpose of their call on 25 September was not to check compliance with her bail conditions. She having breached her bail the previous night by failing the curfew check, on 25 September the officers wanted to locate Ms Sheppard, arrest her and charge her with the offence of breaching bail. Indeed, given that Mr Squire had answered the previous night's inquiry, it may be that on 25 September Mr Harris was not even aware of what had occurred the previous night, and in addition, since he was just returning from a shopping trip as the officers approached the house, he may not have known for certain whether Ms Sheppard was present.[135] When Mr Harris opened the ranchslider and partly withdrew the curtain, the officers could see a portion of Ms Sheppard's room. They entered sufficiently to be able to conclude she was not in the room. But the circumstances suggested to them she may have been elsewhere in the house. That possibility was heightened by sounds of human activity. [136] As a consequence, Detective Wilson motioned Detective Newton to investigate the sounds. He left the room, probably followed by Mr Harris with Detective Wilson close behind. [137] While the trio were still in Ms Sheppard's room, it is likely that Mr Harris queried whether Police could search a house without warrant. They probably replied to the effect that a warrant was unnecessary. They may have told him a search warrant related to property not people but it may be doubtful he understood the distinction. It is also probable that at about that point Mr Harris said he intended to ring his lawyer to check the position – but that exchange appears to be a query of the officers' statements about the necessity for a warrant and a desire to check the correctness of what they told him and not a revocation of their implied licence to enter in pursuit of an offender. Were Mr Harris revoking the implied licence, he would have said so and ordered the officers from the house – as he did later - but the evidence at this hearing was that he did not go so far at that juncture. Indeed, his evidence-in-chief suggests the exchange about the warrant may not have occurred until all three were in the hallway. [138] The trio then left Ms Sheppard's room, Detective Newton to investigate the sounds of domestic activity. Mr Harris' exit was for two purposes: first, to find the phone and make the check call to his lawyer and, secondly, because of his increasing annoyance and agitation at the officers' actions. [139] Shortly afterwards, Mr Harris expressly debarred the officers from searching his bedroom. They complied with that prohibition. [140] Shortly afterwards again, Mr Harris and Detective Wilson were in the hallway with Detective Newton. According to Mr Squire's evidence in the DistrictCourt, something of the order of 20-30 seconds, perhaps a little more, had elapsed since the conversation at the ranchslider. [141] At that point – and in this Court's view for the first time - Mr Harris revoked the officers' implied licence in no uncertain terms by telling them to "fuck off out of my house now" or using similar words. Almost contemporaneously, or at least with insufficient time elapsing for them to comply with his revocation of the implied licence, he jabbed, pushed or punched Detective Wilson in the chest or torso. [142] Put another way, when the officers first entered the house Mr Harris' concern was as to their right so to do. He wished to check the position. However, that he did not at that stage debar their entry either physically or orally. Once they moved further into the house, Mr Harris' concerns at their presence increased. He had been unable to check with his lawyer whether they were entitled to do as they were doing. He was particularly concerned at the possibility they might enter his bedroom and expressly revoked any implied licence they may have had in that respect. But he did not, at that point, revoke the implied licence for them to pursue Ms Sheppard in the rest of the house. Within a few seconds tensions, however, increased further. Mr Harris became verbally abusive, he and Constable Wilson confronted each other and at that point Mr Harris' anger at the Police actions was such that, simultaneously or virtually so, he made clear to the Police officers that they were to leave the dwelling forthwith and emphasised his point by committing an assault on Constable Wilson. Thereafter, from being in the house pursuant to the implied licence to enter in pursuit of the offending Ms Sheppard, the officers' licence had been revoked and they would have been bound to leave the premises within a reasonable time except for the fact that Mr Harris had now committed the offence of assault and the officers thereafter became engaged in endeavouring to arrest him for that offence and process him. [143] Those findings as to the sequence of events follow a logical pattern. There is a querying the officers' right to enter, followed by a prohibition of their entry into his bedroom, followed by his revocation of their implied licence to remain in the house. Alongside that is his escalating agitation from his annoyance and felt impotence at their original entry, through increasing anger as the officers made their way furtherthrough the house and his swearing at them as they did so, to his fury and loss of control when he revoked the implied licence and assaulted Detective Wilson. [144] Given the officers' determination to continue looking for Ms Sheppard and Mr Harris' increasing agitation and aggressiveness on that score, it is very probable that, before telling them to "fuck off out of my house now", or similar, he had sworn at them. He may well have told them to "fuck off" on a number of occasions. But the use of that phrase does not amount, in contemporary New Zealand (Coster) and, perhaps, in England (Snook, Gilham, Fullard and Roalfe), to an unequivocal direction to those to whom it is addressed that their implied licence to enter property has been revoked and they are required to leave as soon as reasonably possible. [145] There are a number of words which are taboo to utter publicly in our society. But such taboo words rapidly lose their etymological meanings. [146] "Bugger" is an example of a word which has lost its original meaning. Publicly using the word "bugger" in New Zealand might, even a comparatively few years ago, have risked prosecution for using indecent or obscene language in a public place. Now, however, it is frequently used on prime time television. It is now no more than a term of abuse, an expletive, an expression of annoyance. [147] "Fuck" must be seen in the same light with its meaning no longer confined to a vulgar or obscene synonym for sexual intercourse. Mr Harris calle Detective Wilson an "arrogant little fuck". But, whereas its public use would, too, only a few years ago have courted prosecution, its use in films or television now rates no more than a mild censor's warning and nobody would propose prosecution for people or plays which use it publicly. [148] Similarly with the phrase "fuck off". It has only been used in the sense of "go away" since 1929 (Oxford English Dictionary 2nd ed Vol VI p 237) but it is now also sufficiently commonplace to be little more than an expletive or expression of annoyance. In terms of this case, it needed to be combined with something more – other words, actions or judged against context – to amount to an unmistakable revocation of an implied licence to enter. It is of particular importance to recall thatthe context of this case includes the fact that the entire incident - from entry to assault – occurred within a maximum of perhaps 40 seconds or more, so the time frame for all actions, including time for the officers' withdrawal, was highly compressed. [149] Those views result in the finding that until Mr Harris told the officers to "fuck off out of my house now", or used similar words, he had permitted their entry into the house despite his increasing concerns, but revoked their licence to be there with the use of those words. In light of the Court's factual finding that Mr Harris first used that phrase immediately prior to, or contemporaneously with, his physical assault on Constable Wilson, it must follow the officers were entitled to be in the house until that occurred. Once that occurred, there was no effective opportunity for them to withdraw and in any case they, having witnessed the commission of a criminal offence, were entitled to endeavour to arrest the offender. [150] To the extent those findings differ from those of Judge Morris, that would appear to be the case because this hearing may have explored the issues in the civil context more fully than they were explored in the criminal context and with the assistance of fuller reference to relevant authority. More particularly, for the reasons mentioned, this Court differs, with respect, from Judge Morris as to the legal consequences of Mr Harris' use of the phrase "fuck off". When the section of her judgment earlier cited is carefully analysed, it is tolerably plain that her conclusions were based on nuances in the District Court evidence which did not conform precisely with the evidence in this case. The last sentence of her para [8] either indicates more cogent evidence as to Mr Harris' view that the officers required a search warrant to proceed further or, with respect, a conclusion as to the legal consequences of Mr Harris' query which this Court does not share. Judge Morris' para [11] may reflect evidential differences but if the point at which she held Mr Harris became agitated and told the officers to "fuck off" was intended to refer to the hallway confrontation, as mentioned, this Court takes the view that the revocation of the implied licence only occurred at that stage and virtually contemporaneously with the assault on Detective Wilson.[151] With the advantage of hindsight, it would plainly have been better for Mr Harris to have heeded the calls of the officers and Mr Squire to calm down, acquiesce in the occurrence of whatever would then have occurred and pursue whatever may have been his rights later. Equally, with the same advantage, it would plainly have been better for the officers - who, after all, were trained to deal with such situations and doubtless had much more experience of them than Mr Harris – to have taken a literal and mental step back, left the house and, if they thought it appropriate, later summonsed Mr Harris for the assault. But this judgment cannot be concerned with what should have occurred: it can only be concerned with what actually happened and its legal consequences. [152] Although there were differences as to sequence, there is no great difference of view as to what thereafter occurred. [153] The officers struggled to subdue Mr Harris by trying to handcuff him. His strength and fury prevented that. Imprecations were hurled about, certainly from Mr Harris. Mr Harris wrested the torch from Detective Newton and tried, unsuccessfully, to hit the officers with it to prevent his being batoned. He was pepper sprayed the first time. Detective Wilson batoned him several times. In the turmoil and the wrestling, he may well have hit him on the arm and about the upper body. Mr Harris retreated to the laundry and was able to hold the door shut despite the officers' attempts to enter. Apart from the hole in the door from the absent door handle, another hole was punched in the door, although it is unnecessary to decide by whom. Mr Harris was pepper sprayed the second time through the hole. He then exited through the laundry window, across the carport roof and over the fence into 1 Oteha Valley Road. [154] The officers pursued Mr Harris along 1 Oteha Valley Road. By then they had called several times for assistance. Each of them hit him with their batons, probably about the buttocks and legs rather than the upper torso. They finally got him to the ground, handcuffed him and placed him in a police car which had arrived. [155] In the car, Mr Harris was cautioned and advised of his rights under NZBORA. He may have sought to consult his lawyer at that stage, although it isunlikely since he would have had no way of knowing whether his request could be complied with. In any event, in that situation, it was impracticable. Nothing he said was put in evidence against him. [156] After the party arrived at Takapuna Police Station Mr Harris was "received" by the watchhouse-keeper at 2108 hours. A pat-down search having yielded a number of suspicious items, Detective Wilson obtained the duty sergeant's approval to conduct a strip search. It yielded further possibly incriminating items, was conducted in accordance with Police General Instructions (R v McMullan HC AK CRI.2004-004-2977, 5 August 2004 Williams J para [10] p 4) and was accordingly sanctioned by the Police Act 1958 ss 30 and 57A. [157] At some stage during this period, though it is impossible to say precisely when, Mr Harris sought to exercise his right to legal advice. That, however, did not occur until 2320 hours, probably because Police concerns were more directed to finding a doctor to attend to Mr Harris's injuries. That proved difficult and the doctor did not arrive until 2306 hours. Police may be open to criticism for not having done more to facilitate Mr Harris's request to consult a lawyer during the approximately two hour period between his receipt and the call to Mr Gotlieb, but since the exact time when the request for legal assistance was first made was not established in evidence and Police concerns to obtain medical assistance for Mr Harris were, in all probability, uppermost, little, if anything, hangs on that. That is particularly the case since at no time between Mr Harris' arrest and his being transported to North Shore hospital about 2350 hours contemporaneously with being admitted to Police bail was there any attempt to interview Mr Harris, obtain a statement from him or undertake any other Police action of the sort which is so often subject to Court challenge. [158] The result of all of that is that – a) On the facts in evidence at this hearing, the officers' implied licence to enter 1 Oteha Valley Road in pursuit of an offender was not shown to have been unequivocally revoked (other than in respect ofMr Harris' bedroom) until, contemporaneously or virtually so, he assaulted Detective Wilson. b) On the facts, therefore, all Mr Harris' claims stemming from what he says were the events of 25 September 2003 must fail. There was no trespass to his property either ab initio since the appropriate finding is that the officers exercised their implied licence to enter and the same was not revoked until the assault. Nor was there a trespass to Mr Harris' property following his express revocation of the implied licence to enter because there was no time for compliance and, thereafter, they were endeavouring to arrest a person whom they had reasonable grounds to believe had committed an offence. c) To the extent that the first cause of action asserts a loss of Mr Harris' rights to enjoyment of the property under common law or under the Trespass Act 1980, it is clear the statute does not apply on the facts of this matter since there was no continued occupation after a warning to leave either orally or in writing (ss 3 and 5) and, even if there is a common law right to privacy of property as mentioned in Dunlea, in the circumstances obtaining here, it does not apply because of its being held the officers were entitled to enter and move about 1 Oteha Valley Road until their implied licence was revoked, and thereafter they were engaged in attempting to arrest a possible offender. d) For the same reasons it must follow there was no unlawful or unreasonable search of 1 Oteha Valley Road such as to invoke NZBORA s 21. e) As to the cause of action for common law unlawful assault, the finding must be that the first assault between the parties occurred when Mr Harris poked or punched Detective Wilson. There was thereafter a series of mutual assaults whilst Mr Harris violently resisted the officer's attempt to arrest him. True it is that the officers batoned Mr Harris. The blows to his upper body occurred during thefracas and the blows to his lower body in Oteha Valley Road occurred when he was being batoned, though this was in accordance with accepted Police procedures. As to the claim for verbal assault, the appropriate conclusion must be that Constable Wilson was correct in saying he restrained himself personally and professionally from using obscene language. In that respect, it is noteworthy that Mr Squire did not speak of the officers swearing at Mr Harris. As well, though "tit for tat" is not a legal concept to be applied to the circumstances of this case, Mr Harris can scarcely claim to have been distressed or upset, even had the officers been using the words he claims, when he was using the foul language he admits he used to them. f) In addition, the officers were thereafter acting to try and arrest Mr Harris utilising the powers in the Crimes Act 1961, ss 31, 32, 42 (on Oteha Valley Road) and 315, and the Summary Offences Act 1981, s 39. They were accordingly justified at law in the actions they took in that regard. g) They were also defending themselves against Mr Harris'violent attempts to resist arrest, particularly after he had commandeered the torch. h) The force used by the officers was not unreasonable in the circumstances given Mr Harris' strenuous attempts to avoid being handcuffed although it would appear to have been going too far for the later Police report to say the officers believed Mr Harris to be capable of causing death. i) Having been arrested, Mr Harris thereafter had no common law claim for unlawful imprisonment through restraint and detention, nor was it unlawful imprisonment under NZBORA ss 22 or 23(5). As mentioned, the only allegation relating to Mr Harris' detention was at the Takapuna Police Station and was that he was twice searched there without his consent and was "imprisoned overnight" without hisconsent. The last is not made out even on Mr Harris' version of events and it is significant that he nowhere pleads he was unlawfully detained at the Takapuna Police Station by reason of the length of time he remained there. j) His arrest was lawful and accordingly not in breach of any common law right to be free of unlawful arrest. k) Mr Harris was advised in the Police car and at the Police station – both orally and in writing – of his rights under NZBORA. It cannot be determined precisely when he first asked to speak to his lawyer but, even if Police delayed in complying with his request, they did so because of their concern to obtain medical attention for him and did nothing to prejudice his position at law in the interval. It is therefore highly doubtful that Mr Harris' claim for unlawful denial of his rights to a lawyer under NZBORA s 23(1)(b) is made out but, even if it were, given that he ultimately telephoned his lawyer and the Police had done nothing to prejudice his position in the interval, it is very likely any breach of his rights would have been held to be minimal. There is also force in Ms Davidson's submissions that Mr Harris was never "detained" until successfully subdued in Oteha Valley Road and accordingly any complaint about his unlawful detention prior to that time is unsustainable. l) The claim that the strip search was unlawful at common law and in breach of NZBORA s 21 was not strongly pursued in submissions. While such searches are, by their very nature, likely to lead to humiliation and embarrassment, for the reasons discussed in evidence, Police sometimes need to undertake such searches and, in Mr Harris' case, the strip search was undertaken in compliance with established procedures under the Police General Instructions. Mr Harris undressed himself. There was no evidence he raised any objection to being strip-searched at the time. In addition, as earlier mentioned, thesearches would appear to have been undertaken in compliance with the Police Act 1958, s 57A. [159] Those factual findings lead inevitably to the conclusion that Mr Harris' first 11 causes of action fail. [160] However, for completeness, had some or all of the causes of action been made out, there may have been weight in Ms Davidson's submissions that Mr Harris' conduct contributed to the various Police actions and accordingly the Contributory Negligence Act 1947, s 3 may have applied to reduce any damages to which he might otherwise have been entitled.2. 14 October 2003[161] In essence, the plaintiff's claims in relation to the 14 October 2003 execution of the search warrant and its ramifications for other causes of action was, at bottom, based on the following assertions : a) That the obtaining and execution of a search warrant was the second of three linked incidents whereby the Police, in bad faith, were conducting a campaign of harassment against the plaintiff by maliciously prosecuting him and acting in misfeasance in public office. b) That the manner of obtaining the search warrant and its execution were not as required by law and accordingly the search was invalid. [162] The first of those factors can be swiftly disposed of. [163] Although police officers were asked whether the execution of the search warrant on 14 October 2003 was instigated by Detectives Wilson or Newton or was in any way linked to the events of 25 September 2003, all denied it. Most officers did not know the constables. All those involved in the 14 October and 4 November incidents said they knew nothing at the time of the events of 25 September. There was no evidence to the contrary.[164] The only common element in the three episodes was the property at 1 Oteha Valley Road and Ms Sheppard's residence there, coupled with information Police had as to her activities at that property. Given Mr Harris knew Police were interested in Ms Sheppard and her activities, perhaps he should have expected them to continue to be interested in 1 Oteha Valley Road if he continued to allow her to live there. [165] The Misuse of Drugs Act 1975 s 18(1) requires search warrants under that Act to be issued under the Summary Proceedings Act 1957 s 198(1). That section gives Justices of the Peace power to issue search warrants in the prescribed form if the application satisfies them that there are "reasonable grounds for believing" that things may be found in the property which may evidence the commission of an offence. The application for the 14 October 2003 search warrant contained the type of information customarily found in such documents. The issuing Justice was plainly of the opinion there were "reasonable grounds" otherwise he would not have issued the warrant. There is no basis for any conclusion other than that the application for the warrant contained sufficient particulars to satisfy statutory requirements. [166] The statutory requirements as to execution of search warrants appear in s 198(7) (8) which read :198. Search Warrants(7) Every search warrant may be executed at any time by day or by night. (8) It is the duty of every one executing any search warrant to have it with him and to produce it if required to do so.[167] Those requirements may be contrasted with, for example, warrants to seize property issued under the Summary Proceedings Act 1957 s 94(1) which requires the production of such a warrant to any person in apparent charge of the premises as a prelude to entry or its production to the person in charge at the first reasonable opportunity (R v Coveny CA351/05 11 April 2006 para [19]).[168] Here, Sgt Inness had the original warrant with him when he and his fellow officers attended 1 Oteha Valley Road. He said he showed it briefly to Mr Harris and then gave him the copy with the name of the issuing Justice deleted. In so doing, given the evidence there was no request by Mr Harris to see the warrant, Sgt Inness may be thought to have gone beyond what was strictly required by s 198(8). There is no requirement that any copy of a search warrant given to an occupant must include the name of the issuing officer and the evidence as to Police reasons for routinely omitting that detail are cogent. [169] The finding must accordingly be that the search warrant was validly obtained and executed on 14 October 2003 in accordance with the statutory requirements and accordingly those parts of Mr Harris' claim alleging unlawful and invalid police action in that regard also fail. It is therefore unnecessary to discuss the possible application of the Crown Proceedings Act 1950 s 6(5). [170] It should also be recalled that a number of the items uplifted from the premises were evidence of the commission of offences against the Misuse of Drugs Act 1975. They included two items recovered from Mr Harris' bedroom. It matters not he was never prosecuted for possession of those items.(3) 4 November 2003[171] Again, fundamental to Mr Harris' claim as to the events of 4 November 2003 is his assertion that this was the third episode of a concerted Police campaign of harassment against him. [172] There was no evidence whatever that such was the case. Indeed, the evidence was to the contrary. [173] Again the common link with the two earlier episodes was Police concerns about Ms Sheppard's activities at 1 Oteha Valley Road. Because of that, there could be no objection to the external surveillance undertaken by Constable Henderson of movements in and out of the property, nor of the way the constable followed Mr Harris that day.[174] There was the recorded dispute between the parties as to the reason for Constable Henderson operating his flashing lights and sounding his siren. The Court inclines to the view that Constable Henderson's description of Mr Harris' lane change manoeuvre was probably correct but it matters not given that in the result he was stopped and charged only with failing to stop for the siren and lights. The evidence is the parties travelled about 2km from the time the lights and siren were operated and Mr Harris only stopped after the constable had driven his car alongside and gestured for him so to do. The stopping was plainly for a traffic infringement and was conducted under the Land Transport Act 1998 s 114. That sanctions the action. [175] It may have been somewhat unusual for Constable Henderson to have arrested Mr Harris for failing to stop rather than simply ticketing him and issuing a summons but his explanation for that choice was not seriously challenged. His denial that arrest was simply a ruse to justify taking Mr Harris to the Police station is accepted. [176] Mr Harris' car was then searched. Mr Harris said he acquiesced. Constable Henderson said that was with the plaintiff's consent and after he had been cautioned and advised of his NZBORA rights. Items which might have been the subject of criminal charges were discovered. Again it is immaterial that Mr Harris was not prosecuted in respect of them given the constable's explanation for refraining from prosecution. [177] The charge of failing to stop was withdrawn at the hearing on 3 March 2004, but Sergeant MacDonald was unable to recall the reason. If it was as a result of a "plea bargain" with Mr Gotlieb, there was no evidence as to the reasons for that agreement. [178] Mr Harris cannot complain that the 4 November 2003 incident required the expenditure by him or his counsel of anything extra of any substance in respect of time, money or preparation by comparison with the other charges he faced on 3 March 2004.[179] Accordingly, even though some of Constable Henderson's actions could perhaps be seen as not entirely routine, the finding must be that he was legally entitled to do as he did.4. 14 October 2003 and 4 November 2003[180] Part of Mr Harris' pleading in relation to 14 October 2003 and 4 November 2003 is that the events occurred when the informations arising out of the 25 September 2003 incident remained undetermined and that accordingly it was malicious for the Police to continue the prosecution of those charges having regard to what occurred on those two dates. He pleaded there was no reasonable cause to continue the prosecution and accordingly its continuation amounted to misfeasance in public office. [181] There can be no basis to uphold that contention. The actions of Police on 14 October and 4 November 2003 have been held to be legally justified. They were not motivated by malice. That they occurred while the informations stemming from the 25 September 2003 incident based on reasonable cause to prosecute remained outstanding is accordingly irrelevant or coincidental. They occurred through independent, unrelated Police action. They were simply a consequence of Mr Harris exercising his right to defend the 25 September charges and the time required for a defended hearing to occur. [182] The dismissal of those charges is also not to the point. For the reasons already outlined, a different result may have been open, particularly as far as the exercise of the discretion stemming from Shaheed was concerned. However, a finding of malicious prosecution or misfeasance in public office does not depend on the outcome of the prosecution pursuant to the misfeasance other than to the extent than the tort of malicious prosecution requires termination without incrimination of the plaintiff as, here, it did. [183] Accordingly, though all the 25 September 2003 charges against him were dismissed, there can be no basis for Mr Harris' contention that the Police actions on 14 October 2003 and 4 November 2003 were undertaken where Police had noreasonable or probable cause for bringing the prosecution or acted maliciously or, though less clearly, that Mr Harris suffered damage as a consequence of the prosecution. His claim for malicious prosecution accordingly fails. [184] Similarly, there can be no basis for any conclusion that on and after 14 October 2003 Police acted in excess of their powers in relation to Mr Harris or acted against him maliciously or acted knowing their conduct was unlawful and likely to injure him in a material way. His claim for misfeasance in public office accordingly also fails.Result[185] In the result : a) All the plaintiff's claims against the defendant are dismissed. b) As to costs, it is understood the plaintiff is legally aided for these proceedings (without contribution). It is accordingly appropriate to leave it to the defendant to decide what, if any, action should be taken as regards costs.Quantum[186] Although not required in view of the foregoing decisions, it may be of assistance to make some brief comments on quantum. [187] First, it must be observed that the claims for general, aggravated or exemplary damages of $200,000 in eleven of the causes of action would, even had some or all of the claims been made out, have vastly exceeded any award for exemplary damages ever allowed in New Zealand for claims such as these (see e.g.Ellison v L [1998] 1 NZLR 416, 419; Dunlea v Attorney-General [2000] 3 NZLR 136, 149 para [36]). [188] All the claims are phrased as being further or alternative causes of action. Even those pairs or trios of causes of action which would appear to have beenproperly alternatives to each other were so headed. Even treating them as one, had some of the claims been upheld, any likely award of general, aggravated or exemplary damages would, in the circumstances of this matter, have been highly unlikely to have resulted in awards anywhere near the amounts claimed. [189] That is particularly the case when relief by way of various declarations is also sought. As is well understood, declarations of breach can be regarded as an effective remedy under NZBORA and affect the amount of damages likely to be awarded. (Baigent's Case at 698; Manga v Attorney-General [2000] 2 NZLR 65; Butler and Butler The New Zealand Bill of Rights Act (2005) chap 31.5 p 1073-1074). In the end, despite all the Police actions of which Mr Harris complains and which lie at the heart of this case, by dint of the combination of charges being dismissed, the discretion not to prosecute being exercised in his favour and the withdrawal of a charge, he has finished up with no convictions against his name as a result of those actions. Whilst, had any of his causes of action been proved, it may have been insufficient for no more than declarations as to breach of his rights to be made, his ending up without any convictions against him could well have been a potent factor affecting the quantum of any damages to which he might have been held entitled. [190] The final point relates to the special damages sought. [191] In essence, Mr Harris claims a number of his tenants vacated after and because of the events of 25 September and 14 October 2003. He said he was unable to obtain substitute tenants for all rooms. Accordingly, he had to meet the shortfall between the rent received and that payable. That led him to borrow about $5000 from his parents. [192] There are a number of aspects concerning the claim for the shortfall between rent received and rent paid. They include : a) The uncertainty in the amount of rent payable by Mr and Mrs Harris has already been mentioned. Mr Harris said it was $575 p.w though the rent book receipts were for $325 p.w. He sought to explain the difference by saying the landlords may have accepted cash or mayhave reduced initial rental payments whilst Mr Harris tidied up the premises. He also acknowledged that some of the tenants' rents varied during the relevant period such as when Mr Squire vacated his room and moved in with his wife. b) The lease of 1 Oteha Valley Road was actually in Mr and Mrs Harris' name and the bank account used for the rent was hers. The bank account records clearly suggested some of Mr (or Mrs) Harris' rental payments to the landlord were dishonoured. It did not help the plaintiff that the bank statements put in evidence ceased at 31 October 2003. c) Mr Harris accepted that he could have terminated the tenancy on three weeks' notice but did nothing in that regard. d) The Work and Income NZ record relating to Mr Harris disclosed no income from his tenants. e) Some tenants left before 14 October 2003 so could not have been influenced in their decision by that evening's search. Some left after and because of the 14 October search but did not give exact dates. They left partly because of the 14 October search but also because of overcrowding. f) Whilst Mr Harris did appear to have borrowed from his parents, the evidence was unpersuasive that the loan was causatively linked to his inability to meet the rent because of tenants vacating after the 14 October 2003 incident. g) There was no evidence Mr Harris had to pay the landlord $500 for damage to 1 Oteha Valley Road. h) Finally, Mr Harris initially said, after moving in with his parents he shifted out of Auckland because of the stress of Police action but lateracknowledged it was, in part at least, influenced by his taking up employment in the central North Island in the film industry. [193] All of those differences indicate that, had it been necessary to consider that aspect of the claim, considerable care in calculation would have been required to assess what, if any, losses Mr Harris could prove were caused by the challenged Police actions. ..WILLIAMS JSolicitors:McVeagh Fleming, Auckland, for plaintiff Crown Law Office, Wellington, for defendantCopy for:Judge Barbara Morris, District Court Auckland Tanusha Iyengar, Civil Registry, High Court Auckland.