PUTUA v ATTORNEY-GENERAL OF NZ [2022] NZHC 2277

PUTUA v ATTORNEY-GENERAL OF NZ [2022] NZHC 2277 [7 September 2022]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2021-485-599[2022] NZHC 2277UNDER the New Zealand Bill of Rights Act 1990BETWEEN KORO PUTUAPlaintiffAND ATTORNEY-GENERAL OF NEWZEALANDDefendantHearing: 16 March 2022Counsel: D A Ewen for PlaintiffD Jones and T Li for DefendantJudgment: 7 September 2022JUDGMENT OF ELLIS J[1] On 15 September 2016, Mr Putua was sentenced in the District Court to a totalof four years and six months' imprisonment on 16 charges (including burglary,unlawfully carrying firearms, receiving, theft and possession of cannabis).1[2] When preparing the warrant of commitment, the Deputy Registrar mistakenlyrecorded that a three month sentence on one of the charges was cumulative, rather thanconcurrent, on the sentence for another charge.2 The effect was wrongly to extend thetotal length of Mr Putua's sentence by three months. The sentencing Judge signed thewarrant without noticing the defect.1 R v Putua [2016] NZDC 18322. That sentence was made up as follows: three years and fourmonths' imprisonment on a burglary charge; a cumulative sentence of one year and two months'imprisonment on a charge of possession of a sawn-off shotgun; and concurrent sentences on theremaining 14 charges.2 The charge being another possession offence under the Arms Act.[3] Mr Putua says he told staff at Northland Regional Correctional Facility of themistake upon his arrival there. He maintained his statutory release date should be 11November 2020 but he was not released then. Eventually, on 14 December 2020, aregistrar prepared a corrected warrant which the sentencing Judge then signed. MrPutua was released that day, after serving 33 days in prison more than he should have.[4] The Crown accepts that Mr Putua was unlawfully and, so, arbitrarily detainedfor 33 days, in breach of s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA).[5] Mr Putua now seeks a declaration to that effect, together with $11,000 inBaigent damages.3 He calls in aid the right confirmed by art 9(5) of the InternationalCovenant on Civil and Political Rights (ICCPR), which provides:Anyone who has been the victim of unlawful arrest or detention shall have anenforceable right to compensation.[6] The Crown says that the Court has no jurisdiction, and no remedy is available,because the error here was a judicial one. It relies on the decision of the three-judgemajority of the Supreme Court in Attorney-General v Chapman.4Legal framework[7] Section 91 of the Sentencing Act 2002 relevantly provides:91 Warrant of commitment for sentence of imprisonment(1) If a court imposes a sentence of imprisonment, a warrant must beissued stating briefly the particulars of the offence and directing the detentionof the offender in accordance with the sentence.(6) If the sentence is imposed by the District Court, any District CourtJudge may sign the warrant.3 Plus interest calculated under s 10 of the Interest on Money Claims Act 2016.4 Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 [Chapman (SC)], discussedin more detail below.[8] Rule 7.2(15) of the Criminal Procedure Rules 2012 makes any warrant that isissued part of the permanent court record. Section 184(2) of the Criminal ProcedureAct 2011 (the CPA) requires a court to maintain the permanent court record inaccordance with the rules.[9] As well, s 37 of the Corrections Act 2004 states:37 Effect of warrant, etc for specified prisons(1) Except where otherwise allowed by law, no person may be receivedin a prison without a valid committal order.(2) Any committal order issued, whether before or after thecommencement of this Act, for the detention of any person in any specifiedprison is sufficient authority for the reception and detention of that person inany other prison to which he or she might have been committed.(3) Any committal order identifying the prison by reference to its locationor by any other sufficient description is not invalid by reason only that theprison is usually known by another name or description.(4) In this section, committal order includes any warrant, writ, order,direction, or authority requiring the detention of any person.[10] Importantly, neither s 91 of the Sentencing Act nor s 37 of the Corrections Actconstitute the authority for a defendant's detention. In AB v Attorney-General, thisCourt found that whilst the receipt of a valid warrant was necessary under s 37 for theprison authorities to receive and detain a person, the lawfulness of that person'sdetention rested upon the Court having made an order for detention rather than on thewarrant itself. 5 Similarly:(a) In R v Fisher, the Court observed that when a Judge has made an orderin Court for a person's detention, a warrant "is needed foradministrative purposes and, if an issue is raised, for proof of theexistence of the Court order" but the lawfulness of detention restedupon the order for detention itself and not on the warrant.65 AB v Attorney-General [2018] NZHC 1096 at [85]–[86]. See also Harding-Reriti v Departmentof Corrections [2021] NZCA 470 at [58].6 R v Fisher T236/95, HC Auckland, 4 October 1995.(b) In Mailley v General Manager, Auckland Central Remand Prison5 awrit of habeas corpus was granted because the warrant for committalwas seriously defective and because it was not possible to determinewhat orders had in fact been made in Court.7[11] Accordingly, it was the sentence imposed by the sentencing Judge in Court thatwas the lawful basis for Mr Putua's detention here. His detention was lawful onlyinsofar as it conformed to the terms of that sentence, whatever the original warrantmay have said. And as I have said, the Crown therefore accepts that his detentionbeyond his statutory release date—calculated by reference to the Judge's actualsentence—was both unlawful and (so) arbitrary, in breach of s 22.[12] Also potentially relevant in this case are further dicta from the decision in AB.AB had, on occasion, been received by the relevant prison on the basis of an unsigned,electronically conveyed, warrant. As to the impact of that practice on the legality ofAB's detention Simon France J said:[82] The practice of the prison of receiving the prisoner on the basis of theunsigned electronically conveyed warrant may be a practical response todifficulties that would otherwise be experienced in processing a prisoner onthe day he or she is sentenced. It is no doubt a practice favoured by thesentenced prisoner who will otherwise need to wait in the court cells, and willbe delayed in getting settled into the prison. However, it carries obvious risks,especially if a signed version is not received that day. It is unclear to me whya scanned version of the signed warrant is not sent immediately it is available.[83] That said, the primary issue for determination in this case is whetherthe absence of a signed warrant makes the prison in breach of s 37 of theCorrections Act.[13] After setting out s 37, the Judge continued:8[84] There is little direct authority on what is a valid committal order butthe key components must be that it is issued by a person authorised to do so,is sufficiently clear on its face as to its effect, explains the basis of thedetention and its apparent source. So, of the electronically transmittedunsigned versions it can be observed:7 Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV-2008-404-8316,17 December 2008.8 Footnotes omitted.(a) they are sourced in a court;(b) they identify the statutory power;(c) the[y] identify the "offence" ;(d) they identify the order to detain for [the relevant detentionperiod];(e) they identify the date of the order; and(f) they identify the Judge making the order.[85] In my view, even without a signature it is a valid committal order forthe purposes of s 37 of the Corrections Act. If wrong in that, I do not considerthe breach would render the detention unlawful because it is a detentionlawfully imposed by a Judge. Section 37 is a direction given to prisonmanagers who on the basis of it could refuse to accept AB (if a warrant isinvalid without a signature). Although the prison manager could refuse toreceive, there is still a valid order authorising AB's detention somewhere.[86] Finally, I observe that even if the absence of the valid committal ordermade the detention unlawful, it is not in my view an error meriting relief aslong as the unsigned warrant reflected a valid order.[14] As the Judge footnoted, in Forrest v Chief Executive of the Department ofCorrections Faire J had similarly held that an unsigned warrant constituted a validcommittal order for the purposes of s 37.9The decisions in Chapman and Thompson[15] As noted earlier, the Crown says that Mr Putua's claim for NZBORA damagesfor his unlawful and arbitrary detention cannot overcome the impediments posed bythe decisions in Chapman and Thompson.10Chapman[16] Chapman involved a claim for public law compensation for breaches of boths 25(h) (right to an appeal) and s 27(1) (right to natural justice) of the NZBORA. Theclaim was brought against the Attorney-General, but the breaches concerned werejudicial acts. Put briefly, Mr Chapman had applied for legal aid in relation to hisproposed appeal against conviction. The application was declined by the Registrar of9 Forrest v Chief Executive of the Department of Corrections [2014] NZHC 1205.10 Chapman (SC), above n 4 and Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR206.the Court of Appeal. He sought a review of that decision, but it was confirmed by theCourt. His appeal was then dismissed without an oral hearing.11 Following a later,successful and legally aided appeal, Mr Chapman was not retried and eventuallydischarged.[17] A unanimous Court of Appeal had held that the principles of judicial immunitydid not operate to bar the claim and that it should be permitted to proceed to trial.12But a three judge majority in the Supreme Court disagreed, holding that the publicpolicy reasons which support a personal immunity for judges do not justify extendingthe scope of Crown liability for NZBORA breaches to include actions of the judicialbranch.13[18] Mr Chapman's pleading had also sought to attribute responsibility for what hadoccurred to the Registrar. This raised the question of "whether, and if so to whatextent, the Registrar, who is a public servant, is protected"—a matter with which theCourt of Appeal had not dealt.14 Of the majority judges in the Supreme Court McGrathand William Young JJ left the question open, but noted:15To the extent that the Registrar's actions were superseded by decisions ofjudges, or give effect to what they have decided, there can plainly be no rightto Bill of Rights Act compensation. This kind of distinction is difficult to makebut it calls for an exercise of judgment commonly undertaken by the courts.Gault J did not address the issue.1611 The procedures which had been applied to Mr Chapman's appeal had been applied to such appealsgenerally in the Court of Appeal for a number of years. They were later held by the Privy Councilin R v Taito [2003] UKPC 15, [2003] 3 NZLR 577 to have been unlawful and in breach of the Billof Rights Act.12 Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [100]–[101].13 Chapman (SC), above n 4, at [204], per McGrath and William Young JJ; and at [212]–[214] perGault JJ. The public policy reasons deemed of "principal importance" were the desirability ofachieving finality, promoting judicial independence and the availability of effective rights ofappeal, rehearing and review: see [179]–[202].14 At [208].15 At [208]. Although the Supreme Court in Chapman referred the question of the registrar's possibleliability back to the High Court, I do not know what the outcome of that referral back was.16 Of the minority, Anderson J did not address the issue and Elias CJ merely observed (at [53]) thatdrawing a distinction between judicial breach and breach by other State actors for the purposes ofremedy "may be elusive in practice and productive of arbitrary outcomes". In a footnote to thatobservation she said: "For example, according to whether a warrant is issued by a judge or aregistrar, or whether breach of fair trial rights is attributed to judicial or prosecutorial misconduct."[19] The Crown relies on this passage and says that because the Registrar's decisionwas "superseded" by the Judge signing the warrant of commitment, there is no rightto compensation.Thompson[20] Ms Thompson's sentence had been cancelled by a District Court Judge but adeputy registrar failed to update the Court's electronic case management system(CMS) to reflect this decision. When the application to cancel was called again beforea different District Court Judge, Ms Thompson (understandably) did not appear. Notknowing the true position, the Judge then issued a warrant, pursuant to which she wasarrested and detained.[21] Ms Thompson subsequently advanced four tortious claims in the High Court,alleging false imprisonment, breach of statutory duty, negligence and a claim for"systemic negligence". A fifth cause of action alleged breach of her rights unders 22 of the NZBORA not to be arbitrarily arrested or detained. The claims were madevicariously against the Attorney-General for the omission of a deputy registrar to notethe cancellation of the sentence on CMS.17 The NZBORA claim was directed at theacts of the Deputy Registrar, because the decision in Chapman precluded a claim fordamages flowing from a judicial act.[22] The Court of Appeal agreed with the High Court that—as far as the tortiousclaims were concerned—the impugned omissions occurred "in connection with theexecution of judicial process", in terms of the immunity afforded by s 6(5) of theCrown Proceedings Act 1950:18It is clear the omissions which are the basis of Ms Thompson's claim wereactions which should have been taken following Judge Blaikie's ordercancelling the sentence. We doubt that the omitted steps could themselves beregarded as responsibilities of a judicial nature, but we consider they clearlyfall within the ambit of responsibilities "in connection with the execution ofjudicial process". In the language of Hardie Boys J, they were steps thatshould have been taken "resulting from the exercise of responsibilities of ajudicial nature". And in the language of Clarke LJ in Quinland they were part17 There was no claim against the Attorney-General for breach of the NZBORA as result of judicialerror.18 Thompson, above n 10 at [39], referring to Quinland v Governor of Swaleside Prison [2002]EWCA Civ 174, [2003] QB 306 at [33].of implementing what the Judge had ordered. Ms Cull was no doubt correctthat Judge Blaikie's order was effective when pronounced, but the CMS wasnot updated so as to reflect the order, and to that extent the cancellationapplication was treated as still extant, even though it was not.[23] As far as the NZBORA claim was concerned, the Court held that:19(a) Ms Thompson's arrest and detention were arbitrary because, althoughthe issuing judge had made an innocent mistake, there was no basisupon which the warrant could lawfully have been issued at the time;but(b) the omission by the Deputy-Registrar had no direct impact onMs Thompson's rights and as a matter of causation could not be seenas leading to her arrest.[24] So while Chapman had left open the potential liability for public law damagesfor the actions of the Registrar, in Thompson it was the issue of the warrant—and notthe Registrar's mistake—that was the "proximate or effective cause" ofMs Thompson's unlawful arrest.20[25] As a result, the Court found Ms Thompson had no right to compensation forher unlawful detention.21[26] In the present case, the Crown similarly says that the Judge signing the warrantwas a superseding event that precludes Mr Putua's claim.19 At [65] – [76].20 It is, perhaps, implicit in Thompson that the Court of Appeal would have found that the Registrar'smistake was an administrative act.21 Ms Thompson later took her case to the United Nations Human Rights Committee (the HRC),saying that her rights under art 9(1) (right to liberty) and 9(5) (right to compensation for unlawfularrest or detention) of the ICCPR had been breached. In due course the HRC released a decisionfinding breaches of both arts 9(1) and 9(5). Although New Zealand had argued that compensationfor judicial breaches of rights would undermine judicial independence, the HRC said that art 9(5)does not permit exceptions to the requirement for state parties to pay compensation for unlawfularrest or detention: see Views adopted by the Committee under article 5(4) of the OptionalProtocol, concerning communication No 316/2018 UN Doc CCPR/C/132/D/3162/2018 (7 June2022). In the course of its decision, the HRC expressly disagreed with the Supreme Court majorityin Chapman.The issues in this case[27] On the state of the law as it presently stands (as articulated in the majority'sdecisions in Chapman) the Court has no jurisdiction to hear a claim for public lawcompensation or NZBORA damages arising from a judicial act: the signing of thewarrant by the sentencing Judge. The position is less clear-cut in relation to themistake by the Deputy Registrar. Based on the joint judgment of McGrath and WilliamYoung JJ in Chapman and the judgment of the Court of Appeal in Thompson potentialliability in that respect will turn on:(a) whether the Deputy Registrar was performing essentially a judicialfunction, which attracts judicial immunity; and(b) if not, whether the Deputy Registrar's mistake was superseded by thatof the Judge and so was not the actuating cause of Mr Putua's unlawfuldetention.[28] I address each in turn.Is preparing the warrant a function that attracts judicial immunity?[29] It is important to note at the outset that a number of the decided New Zealandcases in this area concern the application of s 6(5) of the Crown Proceedings Act,which confers immunity on the Crown in tortious claims arising out of judicial action.The stated reach of that immunity is wider; it extends to protect the Crown fromliability for: anything done or omitted to be done by any person while discharging orpurporting to discharge any responsibilities of a judicial nature vested in him,or any responsibilities which he has in connection with the execution ofjudicial process.[30] It is not difficult to see how the words "in connection with the execution ofjudicial process" often caught (and protected) what were in essence administrativemistakes by court registrars. For example, in Crispin v Registrar of the District Courtthe s 6(5) immunity was found to apply both to the Registrar's discretionary (and soundoubtedly judicial) act of entering judgment by default and also to his subsequentadministrative act of recording that judgment in the civil record book.22 Althoughrecording the judgment in the civil record book was mandatory and involved noexercise of discretion, McGechan J regarded it as inseparable from, and an extensionof, the (judicial) process of entering judgment by default.23[31] Section 6(5) has no application to claims brought under the NZBORA. In myview, whether judicial immunity applies to protect the Deputy Registrar's mistaketherefore needs to be determined by reference to:(a) the orthodox ambit of judicial acts and processes already mentioned;and(b) the policy underlying the immunity.[32] As to the first, the ambit of a judicial act or process was discussed in RoyalAquarium and Summer and Winter Garden Society Ltd v Parkinson, where Lopes LJsaid:24The word "judicial" has two meanings. It may refer to the discharge of dutiesexercisable by a judge or by justices in court, or to administrative duties whichneed not be performed in court, but in respect of which it is necessary to bringto bear a judicial mind—that is, a mind to determine what is fair and just inrespect of the matters under consideration.[33] Applying that definition here, the act of the deputy registrar in preparing thewarrant of commitment could not be seen as a judicial one. It was not a task requiringeither discretion or judgment. Preparation of the warrant is mandatory and its content,predetermined. The Registrar is simply required to record an order made by an(identified) Judge in Court, the date, and the powers under which it was made.[34] So the only question is whether the policy justifying judicial immunity applieswith similar or equal force to acts of this kind.22 Crispin v Registrar of the District Court [1986] 2 NZLR 246 (HC).23 At 253. As in the present case, the default judgment itself was, in its terms, correct but thesubsequent recording of it, wrong.24 Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431 (CA)at 452 referred to (for example) in Simpson v Attorney-General (Baigent's Case) [1994] 3 NZLR667 (CA) at 689 and 695.[35] McGechan J in Crispin considered that it did, at least in the context of adefamation claim. He said:25The underlying policy is that those required to exercise judicial functionsshould have the freedom to speak and act without fear of reprisal. That willbe subverted if, while the author is free from attack, his subordinates in theform of officers of the Court required to record and despatch his decisions arenot protected. Obviously a Judge must not be in a position where he knowsthat what he does or says may expose the staff of his Court to a personalliability.[36] I do not find that reasoning applicable in the present case. Here, there was nounderlying judicial error and so no prospect of the Judge being protected but not theDeputy Registrar.26 Putting to one side the issue of the Judge's subsequent signatureon the mistaken warrant (discussed later below) there can be no doubt that it was theDeputy Registrar's mistake and not the Judge's that caused Mr Putua to be unlawfullydetained.[37] In broader terms, the policy said to justify judicial immunity is to protect theintegrity of the judicial process. It does this by avoiding the risk of collateral attackson, and relitigation of, judges' decisions, and of judges being subject, in theirdecision-making processes, to the weight of improper pressure as a result of potentiallegal liability for their judicial acts.[38] Again, it is difficult to see how these matters apply to administrative acts byregistrars, however closely they might be linked to a judicial process. As notedalready, a registrar has no choice but to prepare a warrant or as to its terms; the onlyobvious consequence of potential NZBORA liability is that more care will be taken.And it is not as if the registrars themselves will be personally liable for such mistakes,nor likely to be publicly pilloried for the same. They are not public figures in the waythat judges are and it is hard to see how the general public would have any real interestin naming or shaming a public servant who has made little more than a clerical error.Moreover, the relevant cause of action would not be against the Registrar personally;25 Crispin, above n 22, at 252.26 As a matter of fact, that was also so in Crispin: the entry in the record book did not reflect the"judicial" order actually made.the defendant will be the Attorney-General on behalf of the Crown, as it is in allNZBORA cases.[39] For these reasons, I conclude that the Deputy Registrar's mistake here was anadministrative act that is not protected by judicial immunity. Given the absence of anydispute about Mr Putua's unlawful detention, that is also the most rights-consistentoutcome.Was the Judge's signature a superseding causative act?[40] It is also necessary to address the question of causation. In reliance on the dictafrom Chapman set out at [18] above, the Crown says the Judge signing the warrantwas an intervening cause that operated to negate any liability for the DeputyRegistrar's mistake.[41] Mr Putua's case is, however, in marked contrast from Thompson. As the Courtof Appeal observed, the error by the Registry in that case could not, by and of itself,have resulted in Ms Thompson's arrest or detention. It was only when a Judge laterissued a warrant herself (as a rather indirect result of the Registry's error) that themistake became of any consequence. It would be difficult to conclude that the laterchain of events leading to the issuing of the warrant (and so to Ms Thompson's arrest)were reasonably foreseeable at the time the Registrar failed to update the CMS entry.Nor could it be said that, in performing what was inherently an internal, administrativeact, the Registrar could properly be seen as owing any kind of rights-protecting dutyto Ms Thompson.[42] By contrast, the creation of the warrant by the Deputy Registrar here was amandatory formal act with clear and known consequences (and—in the event oferror—consequences known to be rights-depriving). And not only may the judge whosigns the warrant be different from the judge who made the order recorded in it but, asthe decision in AB makes clear, such warrants can lawfully be relied and acted onwithout a judicial signature at all. While I accept that there must, of course, be anobligation on a signing judge to check the warrant's correctness,27 I consider that the27 See for example Mailley above n 7 at [13].act of creating the warrant itself has sufficient legal heft to give that act independentlife, in NZBORA terms.28 I do not regard the Judge's signature in this case as asuperseding cause that effectively immunises the Crown from liability for the DeputyRegistrar's mistake.Remedies[43] There is no dispute that Mr Putua was unlawfully (and so arbitrarily) detainedfor 33 days.29 There can be no doubt that the registrar's mistake in preparing thewarrant was a substantial and operating cause of that unlawful detention. And for thereasons just given, I have found that his claim for breach of s 22 of the NZBORA isnot barred by judicial immunity.[44] Mr Putua is, in my view, entitled to the declaration he seeks and I make one atthe end of this judgment.[45] The question of whether Mr Putua is also entitled to NZBORA damages,however, requires consideration of the Prisoners' and Victims' Claims Act 2005 (thePVCA). I record that neither party addressed the PVCA in their submissions.The Prisoners' and Victims' Claims Act 2005[46] Section 3 of the PVCA states that the purpose of the Act is to restrict and guidethe awarding of compensation to those who make "specified claims". Such awardsare to be reserved for exceptional cases and are to be made "only if, and only to theextent that, it is necessary to provide effective redress".[47] Under s 6 of the PVCA a "specified claim" includes a claim for compensationunder the NZBORA based on an act or omission of the Crown, made by a person who"is or was under control or supervision". This is a term defined to include prisoners.3028 In light of my conclusion on this issue it is not necessary for me to consider Mr Ewen's argumentthat the statement made by McGrath and William Young JJ is not binding on me.29 An unlawful detention will inevitably be arbitrary – see for example Thompson above n 10 at [66].30 Prisoner being defined under s 4 of the PVCA as "a person who is for the time being in thelegal custody under the Corrections Act 2004".[48] Any compensation awarded pursuant to such a claim is paid, in the firstinstance, to the Secretary for Justice and a victim of the offender's offending has aright to make a claim against it.31[49] Under s 13(1) of the PVCA a court may not make an award of compensationunless it is satisfied that:(a) the plaintiff has made reasonable use of all of the specified internaland external complaints mechanisms reasonably available to him orher to complain about the act or omission on which the claim is based,but has not obtained in relation to that act or omission redress that thecourt or Tribunal considers effective; and(b) another remedy, or a combination of other remedies, cannot provide,in relation to the act or omission on which the claim is based, redressthat the court or Tribunal considers effective.[50] It is in determining whether a remedy other than compensation is "effective"redress for the relevant act or omission that the courts are required to take into accountthe non-exhaustive matters listed at s 14(2). These are:(a) the extent (if any) to which the plaintiff, the defendant, or both took,within a reasonable time, all reasonably practicable steps to mitigateloss or damage arising from the act or omission on which the claim isbased; and(b) whether the defendant's breach of, or interference with, the rightconcerned was deliberate or in bad faith; and(c) the relevant conduct of the plaintiff; and(d) the consequences to the plaintiff of the breach of, or interference with,the right concerned; and(e) the freedoms, interests, liberties, principles, or values recognised andprotected by the right concerned; and(f) any need to emphasise the importance of, or deter other breaches of,or other interferences with, the right concerned; and(g) the extent (if any) to which effective redress in relation to that act oromission has been, or could be, provided otherwise and bycompensation; and(h) any other matters the court or Tribunal considers relevant.31 Prisoners' and Victims' Claims Act 2005, s 17.[51] I address each factor in turn.[52] As to the first matter, the evidence suggests that Mr Putua availed himself ofall the mechanisms open to him to challenge his continued detention. The Crown didnot point to anything else he should have done. While, in theory, he could have madean application under the Habeas Corpus Act 2001 that seems to me to be unrealistic inthe circumstances in which he found himself. So this factor counts in favour ofcompensation here.[53] And as to the second, there is also no basis for a finding that the mistake by theDeputy Registrar was deliberate or in bad faith. That was a relatively neutral factor.[54] The reference in 14(2)(c) to the "conduct" of the plaintiff was explained by theCourt of Appeal in Chief Executive of the Department of Corrections v Gardiner.32The Court said:33[56] A court should also take into account the plaintiff's relevant conduct,which requires a clear nexus between his or her behaviour and the defendant'swrong — in this case, the unlawful additional period of imprisonment.47 Itincludes, for example, any act of the plaintiff that may have caused thedefendant to act as it did. As noted, the PVCA was a response to Taunoa, inwhich Corrections was trying to manage especially difficult prisoners, and itappears that the legislature was concerned to ensure that courts must takeprovocation by the prisoner into account.[55] There is nothing here that could conceivably suggest any link betweenMr Putua's conduct and his unlawful and arbitrary detention.[56] The consequences to Mr Putua of the breach of his right were that he lost hisliberty for 33 days (a period almost identical to the length of the unlawful detention inGardiner). As with Mr Gardiner, Mr Putua's claim is focused squarely on the valueof his lost liberty; nothing has been raised that either mitigates or exacerbates thatloss.3432 Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608, [2018] 2 NZLR712. Mr Gardiner had been unlawfully detained because, as a result of the Supreme Court'sdecision in Booth v R [2016] NZSC 127, [2017] 1 NZLR 223, his release date had been wronglycalculated.33 Footnote omitted.34 Such as loss of earnings or mental health issues that were aggravated by imprisonment.[57] As for the nature of the relevant right, the right not to be arbitrarily orunlawfully imprisoned is fundamental; a point confirmed by the fact that art 9(5) ofthe ICCPR provides that anyone who has been the victim of unlawful detention shallhave an enforceable right to compensation. That was a point relied on by DunninghamJ when making the first instance award of damages in Mr Gardiner's case.35 Sheobserved that unlawful imprisonment lasting a month "is not a trivial or fleetingbreach, but rather is a period of unlawful detention which warrants compensationsimply to reflect the loss of liberty."36[58] But the Court of Appeal in that case noted:37[61] Finally, liberty is a fundamental right and its unlawful loss may justifythe emphasis of a damages award, as s 14 recognises, but the amount need notbe the same in all circumstances. The community at large places a very highvalue on liberty and, as Mr Perkins properly accepted, that value is notnecessarily less because the plaintiff was lawfully imprisoned for a period. Itis proper to begin with that value. But when converted to a per-day rate, thevalue of liberty may vary both with the length of the sentence lawfullyimposed and with the period of unlawful detention. (The shorter the latter thehigher may be the per-day rate.)[62] In this regard, it has been held in England that a plaintiff who hasplainly demonstrated that he or she places a low value on personal liberty —for example, by committing offences in prison and so risking delayed release— may expect that value to be reflected in the award. We prefer the view, asstated above, that conduct of the plaintiff may be taken into account wherethere is a clear nexus between that conduct and the additional period ofimprisonment.[59] In this case, however, there is nothing to suggest that Mr Putua placed a lowvalue on liberty.[60] The need to emphasise the importance of (and to deter other breaches of) orthe right concerned goes hand in hand with the nature of the right itself; there is valuein the Court marking a liberty-depriving mistake. I again acknowledge, however, thatthere has been no suggestion of bad faith on the deputy registrar's behalf.35 Gardiner v Chief Executive of the Department of Corrections [2017] NZHC 1831, [2017] NZAR1348.36 At [49].37 Gardiner (CA), above n 32.[61] The penultimate matter in the s 14(2) list has no real application here. Thereis and can be no other form of effective redress; Mr Putua's was not one of those casesthat could be resolved through the criminal process; that process was at an end whenthe causative mistake occurred. And given the importance of the s 22 right, and theterms of art 9(5) of the ICCPR, declaratory relief may well be necessary, but it is notsufficient.[62] All the s 14(2) factors lead inevitably to the view that an award of damages isthe only effective remedy here. The only remaining question is, how should it bequantified.Quantification[63] In Gardiner, Dunningham J at first instance regarded compensation of $10,000was an appropriate reflection of Mr Gardiner's unlawful detention for around amonth.38 She expressed reservations about analogising with the compensation payableto those wrongly convicted under Cabinet's Compensation Guidelines,39 preferring tobase her analysis on the decision of this Court in Manga v Attorney-General.40[64] Dunningham J's figure was upheld on appeal, but the Court of Appeal took aslightly different approach to the quantification exercise:41[63] We approach the exercise by assessing damages for ourselves andcomparing the result to that reached in the High Court. We do so because, aswe go on to explain, we prefer not to take Manga as our starting point. Thestarting point must be that damages are at large and should not be assessed ina formulaic way.38 Gardiner (HC), above n 35, at [71].39 Ministry of Justice Compensation for wrongful conviction and imprisonment (May 2015). Theseguidelines were superseded in August 2020.40 Manga v Attorney-General [2000] 2 NZLR 65 (HC). Mr Manga received compensation of$60,000 ($86,900 if annualised) for 252 days of wrongful imprisonment. Dunningham J foundthat, given the number of analogies between Mr Gardiner and Mr Manga's case, Mr Manga'scompensation was the appropriate starting point, to be taken on a pro-rated basis. Self-evidently,some 20 years have passed since then, which led Dunningham J (in 2017) to adjust upwards byaround 30 per cent for inflation: Gardiner (HC), above n 35, at [68]–[71].41 Gardiner (CA), above n 32.[64] As noted, Mr Gardiner does not claim pecuniary losses. So far asnon-pecuniary losses are concerned, he points only to the loss of liberty. Wehave accepted that a prisoner may suffer emotional harm throughout asentence and so may seek compensation when detained too long, but there isno evidence that Mr Gardiner suffered such harm during the period ofunlawful detention. Although that period was material, at one month, it wasassociated with a lawful sentence. It could not be suggested that his conductsomehow caused Corrections to act as it did. Equally, Corrections acted ingood faith and there is no need for deterrence.[65] We find Manga a useful illustration on particular facts but do notadopt it as a starting point. The annualised figure of $130,000 adopted therewas not closely related to any previous case, and it was high relative to thenear-contemporaneous 2000 Cabinet Guidelines figure of $100,000 for awrongly convicted prisoner. It reflected significant emotional harm sufferedby Mr Manga and the very long period for which he was unlawfullyimprisoned.[66] Manga also pre-dated both the PVCA and a number of cases,including Taunoa, in which Baigent damages have been awarded to prisonersfor breach of protected rights. In Taunoa Blanchard J emphasised thatdamages in tort should not be equated with Baigent damages because the latterare a form of public law compensation and discretionary. However, the effectof the PVCA is to make tort damages discretionary and exceptional, as alreadynoted. In our view that means claims for Baigent damages are an appropriatecomparator in this context.[65] After a review of several other cases in which compensation had been awardedto those who had been unlawfully arrested or detained, the Court said:[68] The Cabinet Guidelines are a useful point of reference, but as notedearlier they combine all non-pecuniary losses into one category so the figureof $100,000 must be discounted substantially for a plaintiff in Mr Gardiner'scircumstances. He was not wrongfully convicted and imprisoned and hecannot point to the serious emotional harm that such a person would likelysuffer. On the other hand, to the extent the guidelines were used an adjustmentwould also need to be made for the time value of money.[69] We accordingly approach the assessment on the basis that we arevaluing the loss of Mr Gardiner's liberty for about five per cent of his lawfulsentence. An award must be large enough to vindicate the important libertyinterest, but there is no cause to increase that sum for emotional harm ordeterrence. Because we have used neither Manga nor the Cabinet Guidelinesas our starting point, it is not appropriate to adjust arithmetically for inflationfrom a given date; that would lend a false air of precision to the exercise andrisk producing an end result that is too high when compared to subsequentcases. Rather, we make the assessment as at the date of breach, recognisingthat an allowance must be made for change in the value of money to the extentthat we base the award on older cases.[70] In our opinion an appropriate award would be not less than $8,000and perhaps as much as $12,000.So what is the right amount of compensation here?[66] Although the Court of Appeal in Gardiner eschewed a "formulaic" approachto quantum, the similarities between that case and this are too great to ignore. In 2017,Mr Gardiner was awarded $10,000 for 30 days of unlawful detention. I agree withMr Ewen that $11,000 is appropriate here, taking into account the three extra days and(in a non-scientific way) inflation over the intervening five years.Interest[67] Mr Putua also seeks interest on any compensation payable, under s 10 of theInterest on Money Claims Act 2016 running from the date he was released(14 December 2020) until the date of payment. The Crown did not contest this. Imake that order accordingly. The relevant interest rate is determined by reference tos 12 of that Act.Result[68] I make the following declaration:As a result of an inadvertent mistake by a deputy registrar in the District Courtwhen preparing a warrant of commitment following Mr Koro Putua'ssentencing on 15 September 2016, Mr Putua was arbitrarily detained for33 days (between 11 November and 14 December 2020), in breach of s 22 ofthe New Zealand Bill of Rights Act 1990.[69] In order fully and effectively to vindicate his s 22 right, Mr Putua is alsoentitled to compensated by way of NZBORA damages in the sum of $11,000, togetherwith interest calculated in accordance with [67] above. As I understand it, that summust be paid in the first instance to the Secretary for Justice under the PVCA.[70] If the parties cannot agree costs (which should follow the event) memorandamay be submitted._____________________Rebecca Ellis JSolicitors:Ord Legal, Wellington for PlaintiffCrown Law, Wellington for Defendant