VAIHU V A-G POLICE HC AK CIV 2005-404-002096

VAIHU V A-G POLICE HC AK CIV 2005-404-002096 3 August 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-002096IN THE MATTER OF an Application for Leave to Appeal to the Court of Appeal BETWEEN MATINI VAIHU Appellant AND THE ATTORNEY-GENERAL SUED IN RESPECT OF THE ACTS OF THE NEW ZEALAND POLICE Respondent Hearing: 15 June 2006 Appearances: JA Sutton and PM Webb for Appellant J Foster for Respondent Judgment: 3 August 2006JUDGMENT OF COOPER JThis judgment was delivered by Justice Cooper on 3 August 2006 at 1.45 p.m., pursuant to r 540(4) of the High Court Rules Registrar/Deputy Registrar Date: Solicitors: Sinisa Law, PO Box 22853, Otahuhu Crown Law Office, PO Box 2858, Wellington Copy to: JA Sutton, PO Box 276167, Manukau[1] Matini Vaihu seeks leave to appeal to the Court of Appeal pursuant to s 67 of the Judicature Act 1908, from a decision of Ellen France J. In her decision, delivered on 8 November 2005, she allowed an appeal by the Attorney-General against a decision of Blackie DCJ and disallowed the cross-appeal that had been filed by Mr Vaihu. [2] Mr Vaihu had sought exemplary damages in the sum of $40,000 against the Attorney-General in respect of actions of the New Zealand Police. There were two causes of action. One alleged the tort of battery, the other alleged a breach of the Mr Vaihu's rights under s 9 of the New Zealand Bill of Rights Act 1990. [3] Judge Blackie held that there had been a battery. He rejected the claim for exemplary damages. However, he gave judgment for Mr Vaihu in the sum of $10,000, for breach of s 9 of the New Zealand Bill of Rights Act 1990. The effect of Ellen France J's decision was to vacate the judgment entered against the Attorney- General in the District Court. [4] There was no dispute as to the principles to be applied in respect of an application for leave under s 67 of the Judicature Act. In accordance with authorities such as Waller v Hider [1998] 1 NZLR 412 (CA) and Snee v Snee (1999) 13 PRNZ 609 (CA) it is necessary that the appeal raise some question of law or fact capable ofbona fide and serious argument in a case involving some public or private interest, which is of sufficient importance to outweigh the cost and delay of the further appeal.The facts[5] For present purposes, the relevant facts can be shortly stated. In essence, Mr Vaihu's claim was based on an attack made on him by a police dog called "Willis". Willis and his police handler were in the area on the trail of four people who had been seen kicking over signs outside a service station in New Lynn. Mr Vaihu at the relevant time was most unwell. He had purchased some toilet paper at a nearby service station and gone off behind some bushes to vomit, and evacuate his bowels. Constable Taylor, the dog handler, had Willis on a chain of at least fivemetres length. Willis came upon Mr Vaihu behind some bushes. Willis had seized Mr Vaihu's arm and he was screaming when Constable Taylor arrived on the scene. The Constable immediately pulled the dog off, but the injuries caused to Mr Vaihu were severe. An artery in his arm was severed and he lost about two litres of blood. He was hospitalised for four days. [6] The District Court Judge held that there was insufficient basis to award exemplary damages for the battery that he found had occurred but he awarded $10,000 damages "as compensation for the affront" to Mr Vaihu's rights under s 9 of the New Zealand Bill of Rights Act.The judgments[7] Before Ellen France J were an appeal by the Attorney-General against the finding of liability in respect of the Bill of Rights Act breach and a cross-appeal by Mr Vaihu against the Judge's conclusion on the question of exemplary damages for battery. As I have mentioned, Ellen France J allowed the former, and dismissed the latter. [8] The Attorney-General's appeal succeeded. Ellen France J considered that Blackie DCJ had wrongly concluded that there had been a breach of Mr Vaihu's rights under s 9 of the New Zealand Bill of Rights Act 1990. Section 9 provides:Right not to be subjected to torture or cruel treatment –Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.[9] Blackie DCJ had found that Mr Vaihu had been the subject of an "unprovoked, vicious, almost life-threatening attack" by the dog. The attack had been "compounded" by Mr Vaihu's humiliating and embarrassing circumstances at the time of the attack. He further found that there had been a battery in the present case, consisting of the application of force without lawful justification. The Judge reasoned that the dog should not have regarded the respondent's behaviour as threatening, observing at [50]:[50] I find that there was no lawful justification for the action of "Willis" against the plaintiff. During the latter stages of the tracking "Willis" was proceeding some five metres ahead of Constable Taylor albeit on a chain. "Willis" was therefore allowed or permitted to be beyond Constable Taylor's line of sight (through the bushes and in the dark) and beyond his immediate control. He was unable to direct or restrain "Willis" until he arrived at the scene of the action, by which time there had been an unprovoked attack on an innocent member of the public – the plaintiff. I do not accept the defence explanation that the dog would have reacted in accordance with its training to a perceived threat of danger either to itself or its handler. Nothing could be less threatening than a person in the plaintiff's position vomiting or going to the toilet. A sudden retreat could not be perceived as a threat, nor seeking refuge in a motor car. If Police dogs are trained to react by way of an attack on an innocent bystander who happens to make a sudden movement then, there is something fundamentally wrong with the training. Short of having received the command "rouse" there was nothing to justify the action of the Police dog "Willis" against the plaintiff. Even if he had been an offender it is hard to see that the use of the dog to physically attack, as a means of restraint would have been justified.These findings must be read in the context of the discussion earlier in this judgment (at [14] – [23]) about the training of police dogs in general, and "Willis" in particular. [10] In the following paragraph, having recorded his conclusion that there had been a battery without lawful justification, Blackie DCJ observed:The Police dog is an extension of the arm of its handler in the same way as a batten[sic] or any other weapon would be the extension of the arm. For the attack on the plaintiff the Police must accept responsibility.[11] Later in his judgment, building on his conclusion that "Willis" was an extension of the arm of his handler, Blackie DCJ held that the attack had been "an act of detaining". Mr Vaihu had had no option but to suffer the detention by virtue of the dog's grip until, in due course, released. In fact, following Mr Vaihu's apprehension by Willis, Constable Taylor, believing the dog to have located a person of interest, treated Mr Vaihu as an offender, advising him of his rights under the Bill of Rights. The Judge observed at [59]:It was only after the discovery of the faeces, the toilet paper and the plaintiff's profuse bleeding, that it was realised he was an innocent member of the public. I am quite satisfied that the actions of the dog attacking the plaintiff in the course of his apprehension amounted to cruel, degrading and disproportionately severe treatment by an arm of the State. The attack was without any justification whatsoever.[12] The Judge thought it was hard to contemplate an instance more humiliating and embarrassing than the events that had taken place in the present case. Mr Vaihu had been subject to a "gross indignity". Although he did not consider him entitled to exemplary damages, he was entitled to compensation for the affront. In reliance on what was said in Wilding v Attorney-General [2003] 3 NZLR 787 the Judge concluded that there was no reason why the breach of s 9, which had resulted in a battery, could not be marked by an award of damages. At [62] he said:The affront of a dog bite to an offender whilst attempting to avoid detection or capture such as may have been the case with Mr Wilding, would be far less than to an innocent member of the public, such as the plaintiff.[13] Noting that it was not appropriate to make an award in favour of the plaintiff in respect of the injuries that he had suffered, he concluded that damages in the sum of $10,000 would be appropriate in respect of "the affront, the indignity and the humiliation". [14] Ellen France J held that Blackie DCJ had been wrong to conclude that the s 9 test had been met, for a number of reasons. She referred to a number of authorities, including the Court of Appeal decisions in Puli'uvea v Removal Review Authority[1996] 3 NZLR 538 and Zaoui v Attorney-General [2005] 1 NZLR 577, emphasising the high threshold that was required before a breach of s 9 could be established. [15] Quite apart from those and other authorities which she mentioned, Ellen France J held that the threshold must be a high one on the wording of s 9 itself. Thus, in her view, the word "torture" used in the section must colour the meaning to be given to other words in the section, including "treatment". It is implicit from the discussion at [42] – [53] of the judgment that she did not think that the conduct to which Mr Vaihu had been subjected in the present case was sufficiently severe to constitute a breach of s 9 of the New Zealand Bill of Rights Act. This is made plain by her conclusion at [61]:As to the level of humiliation, it is difficult to say that what occurred here breaches the "gross" level required (see Duffy at 319 and Pannick at 136- 137) especially where the respondent's own unforeseen actions were what made it humiliating.[16] Her reasoning, however, was not restricted to that point. At [54] she observed:[54] Here, the focus must be on Constable Taylor's conduct. In that sense, I take a different view from the District Court Judge who saw an analogy between the dog as an extension of the arm of his handler and the use of a baton or other lethal weapon. I see the use of a Police dog as having some differences from use of a Police baton. The baton literally has no other life of its own. The same cannot be said for the Police dog.[17] In the balance of her judgment, she said that it was at least highly relevant that the actions in the present case were not deliberate, holding that once it was accepted that what had occurred took place inadvertently, "it would be surprising if that constituted a breach of s 9". Other matters that she mentioned were the fact that Constable Taylor had issued a warning (albeit that the respondent did not hear it), the fact that what occurred was of short duration (although it had significant consequences for Mr Vaihu) and that, although he had been seriously affected by the incident, Mr Vaihu had been given proper medical treatment once it was realised what had occurred.The application for leave[18] In advancing the application for leave, Mr Sutton accepted that the test for whether there has been a breach of the rights guaranteed by s 9 of the New Zealand Bill of Rights Act 1990 remains at the high level referred to by the Court of Appeal in Puli'uvea v Removal Review Authority (supra). In that case, Keith J, writing for a unanimous Court observed at 523:We do not doubt that the carrying out of the order would cause considerable distress, sadness, and difficulties for the family. But the action of removing Mrs Puli'uvea cannot be said to begin to attain to the high threshold required by the prohibition in the New Zealand Bill of Rights Act on disproportionately severe treatment. The cases here and elsewhere expand on such constitutional guarantees by using expressions such as "treatment that is so excessive as to outrage standards of decency", e.g. R v P (1993) 1 HRNZ 417, 423; 10 CRNZ 250, 255, referring to decisions of the Supreme Court of Canada and the United States Supreme Court.[19] Mr Sutton submitted, however, that while the decision in Puli'uvea set out the "overarching" test that needed to be applied, the more recent decision of theCourt of Appeal in Attorney-General v Taunoa [2006] 2 NZLR 457 had provided further guidance as to the manner in which that test should be applied. He argued that the approach of Ellen France J was inconsistent with what had been said inTaunoa. [20] The basis of that claim was a submission that Ellen France J had placed an emphasis on the conduct of the police and Constable Taylor's lack of intent, when, in accordance with the Court of Appeal's decision in Taunoa, it is not necessary to establish that the state intended harm to the victim. [21] Further, Mr Sutton submitted that the decision in Taunoa distinguishes amongst the various kinds of conduct mentioned in s 9. While intent would be necessary to establish torture, he submitted that there was then a gradation in respect of the other kinds of conduct mentioned in s 9 in which disproportionately severe treatment would lie at the opposite end of the scale. Where the focus is on that element of s 9, he submitted that an emphasis on the wrongdoer's conduct and intent was inappropriate. [22] Mr Sutton focused in particular on the observations that were made by the Court of Appeal in Taunoa in dealing with the prisoner Mr Tofts. He submitted that, on the facts, there had been no intention to cause Mr Tofts the harm that he suffered, and the Department of Corrections were at best negligent and at worst, "subjectively reckless" about the effects of the manner in which Mr Tofts had been treated. He argued that in the present case, Constable Taylor's lack of vigilance amounted to similar, if not worse conduct. He submitted that whilst his conduct was relevant, it would not have assumed "the focus and predominance accorded to it by the High Court Judge had the findings in Taunoa been available to the High Court". Further, he argued that the correct focus should be on whether the treatment, taken overall, having regard to conduct, consequences and all other relevant matters (but not focused on one particular aspect) had been disproportionately severe.The Crown's opposition[23] Ms Foster, for the respondent, submitted that the proposed appeal did not raise a question of law or fact capable of bona fide and serious argument such as to outweigh the cost and delay of a further appeal. She submitted that there is no need for further clarification as to the application of s 9 of the New Zealand Bill of Rights Act on the facts of the present case, nor is there any prospect of a successful appeal as the High Court had correctly found that s 9 was not engaged in the circumstances. In particular, Ellen France J had correctly applied Puli'uvea v Removal Review Authority, and the facts of the case simply did not reach the high threshold required to establish breach of s 9. [24] Ms Foster submitted that there was no conflict between Ellen France J's decision and the decision of the Court of Appeal in Attorney-General v Taunoa. She argued that properly understood, Ellen France J's judgment should be seen not as finding that "treatment" for the purposes of s 9 must be intentional. Rather, she had simply held that intention was a highly relevant factor in the present case which had concerned an unintentional bite by a police dog. [25] Ms Foster submitted further that in Taunoa, the Court of Appeal had accepted that treatment that engaged s 9 generally involved intention, but the absence of intention did not conclusively preclude a finding that s 9 had been breached. Intention might be a relevant factor in the s 9 analysis. Consistent with that approach, she argued that Ellen France J had not found that treatment must be intentional before s 9 could be invoked. Rather, at [57] of the judgment, she had specifically acknowledged that while intention is a necessary prerequisite for torture, it is not the case in terms of breaches of other aspects of s 9.Discussion[26] In Taunoa O'Regan J (who wrote for the majority) recorded at [186] that the respondent in that case had accepted that intention was an ingredient of the definition of torture, but that it was not required to establish "cruel, degrading ordisproportionately severe treatment or punishment". At [187] O'Regan J recorded also the acceptance by the Attorney-General that:while cruel, degrading or disproportionately severe treatment or punishment generally involves intention, the absence of intention did not conclusively preclude a finding of a breach of s 9. However, he argued that intention was a relevant factor in determining whether a breach of s 9 had occurred, particularly where an allegation of degrading treatment is concerned.[27] Then, at [188], O'Regan J said:In our view, the appellants' concession in relation to intention in the context of s 9 was rightly made. We also agree that intention may be a relevant factor in the s 9 analysis. That accords with European practice in the context of art 3 of the European Convention: Keenan v United Kingdom (2001) 33 EHRR 38 at para [109].[28] Having described the treatment to which Mr Tofts had been subjected in that case, the Court then set out its conclusions at [225] that there had been a breach of s 9 of the Bill of Rights. In doing so the Court differentiated between the various elements of s 9:[225] In our view, the combination of factors outlined above justifies a finding of breach of s 9 of the Bill of Rights in relation to Mr Tofts. In summary: (a) we are satisfied that there was no intentional infliction of harm on Mr Tofts, and therefore no torture in terms of s 9; (b) we do not consider that his treatment could be classified as "cruel" adopting the test that this requires treatment which shocks community conscience (see para [144] above); (c) we do not consider his treatment was degrading treatment, which involves some form of gross humiliation or debasement; (d) but in our view, the treatment of Mr Tofts does cross the threshold for disproportionately severe treatment. In Puli'uvea v Removal Review Authority [1996] 3 NZLR 538 at p 523[sic], this Court referred to the "high threshold" for disproportionately severe treatment, and continued: "The cases here and elsewhere expand on such constitutional guarantees by using expressions such as 'treatment that is so excessive as to outrage standards of decency'." A fair evaluation of the treatment of Mr Tofts against that threshold leads to a conclusion that the threshold was crossed in this instance.[29] I accept, as Mr Sutton submitted, that the decision in Taunoa shows that intention is not a necessary element of a breach of s 9 where there is no allegation of torture. Apart from that point, however, I do not see in the judgment any distinction between the other forms of conduct inter se. It does not in my view justify Mr Sutton's contention that a case of "disproportionately severe treatment" should be at the lowest end of the scale in terms of what must be established. I note further that Blackie DCJ, in contrast to the approach of the Court of Appeal at [225] ofTaunoa, did not distinguish between conduct that was cruel, conduct that was degrading, or conduct that was disproportionately severe. Rather, at [59] of his judgment he simply recorded that he was satisfied that the "actions of the dog attacking the plaintiff amounted to cruel, degrading and disproportionately severe treatment by an arm of the State". [30] I accept Ms Foster's submission that Ellen France J's decision is not properly described as requiring intentional conduct before s 9 is breached. Rather, it seems to me that the issue of intention was treated by Her Honour as a factor that needed to be considered, albeit that on the facts of the present case, it was a significant one. [31] The reason for the significance of the question of intention, I think, lay in the distinction that Her Honour thought should be drawn, and which Blackie DCJ had not drawn, between the constable and the police dog. That is plain from what she said at [56], where she described the relevant conduct "at its highest" as allowing the dog to go into the bushes, knowing that it might bite. She took the view, so far as Constable Taylor was concerned, that his conduct was simply to be characterised as inadvertent. The other matters that Her Honour mentioned relevant to the assessment were the facts that a warning had been issued (although not heard by Mr Vaihu), the event was of short duration, treatment had been proffered when police understood what had occurred, and the fact that, in Her Honour's view, the level of humiliation that had resulted had not reached the "gross" level required in accordance with the approach required by Puli'uvea v Removal Review Authority.[32] Nevertheless, I have decided that this is a case where it is appropriate for leave to be granted. The question whether the actions of the police dog can be divorced from that of its handler so that what the dog does, if not intended by thehandler, should have no consequences in terms of a breach of s 9 is one which I think can legitimately bear further consideration by the Court of Appeal in a second appeal. That question is, I think, one of legitimate public interest and the issues that Mr Sutton has raised depend, I think, on the extent to which a distinction between the police officer and the dog is properly made. [33] I respectfully agree with what Ellen France J said about the distinction properly drawn between a police dog and a weapon, such as a baton, at [54] of her judgment, which I have quoted at [16] above. Nevertheless it is arguable that in drawing a dividing line between Constable Taylor and the dog, the result was to over-emphasise the importance of intention on the facts of this case when there might have been a greater emphasis, as Mr Sutton contends there should have been, on the nature of the dog's training and possibly negligence or recklessness in the way the dog was handled at the time: the issue of what Mr Sutton referred to as lack of vigilance. A factual basis for those arguments was in my view, sufficiently set out in Blackie DCJ's decision at [15] – [20], [50] and [56]. [34] I bear in mind that Mr Vaihu succeeded in the District Court. I also bear in mind that the jurisprudence under s 9 of the Bill of Rights is at an early stage of its development. There are statements made in Attorney-General v Taunoa which have significance for some of Ellen France J's reasoning. I refer, for example, to her observations at [57] which imply that intention will generally be necessary to establish a breach of any of the rights protected by s 9. Further, there could well be merit in the Court of Appeal giving further consideration, in the context of this case, to the conclusion that Ellen France J reached that the level of humiliation experienced by Mr Vaihu did not reach the "gross" level required because it was the respondent's own unforeseen actions that made it humiliating (at [61]). [35] For these reasons, I have decided that leave to appeal should be granted. If there is any issue as to costs that cannot be resolved, I will receive memoranda on that subject from counsel for the appellant within ten working days of delivery of this judgment, and from the respondent within a further five working days.