SLATER V ATTORNEY-GENERAL CIV 2005-404-003728

SLATER V ATTORNEY-GENERAL CIV 2005-404-003728 30 August 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-003728BETWEEN RENO JOHN SLATER Appellant AND ATTORNEY-GENERAL ON BEHALF OF THE POLICE OF NEW ZEALAND Respondent Counsel: J F Mather for Appellant G A D Neil for Respondent Judgment: 30 August 2006JUDGMENT (No 2) OF KEANE JThis judgment was delivered by Justice Keane on 30 August 2006 at 3pm pursuant to Rule540(4) of the High Court Rules.Registrar/ Deputy Registrar Date:Solicitors: Upper Harbour Law Centre, Auckland for Appellant Crown Solicitor, Auckland for Respondent[1] In my decision dated 30 March 2006 allowing Mr Slater's appeal, I held that when the police assisted the owner to recover a rental car, which was immobile and damaged in Dawson Road, Otara, by abstracting Mr Slater using OC spray, that was beyond their power and contrary to their own General Instructions. Mr Slater reacted aggressively but his arrest, I held also, was nevertheless unlawful, as was his subsequent restraint, and any use of force. I invited submissions as to damages. [2] Mr Slater contends that, when he was abstracted from the car he was roused from sleep, as was Mr Wirehana, who was also in the car. They were both intoxicated but they were not causing any breach of the peace. The police were intent, rather, on recovering the car for the owner and acted without power and contrary to their own instructions. He was assaulted, restrained, handcuffed and held for seven and a half hours, only to be released without charge. He seeks compensatory and exemplary damages in tort or an award under the New Zealand Bill of Rights Act 1990, or both, in the range $10,000 - $20,000. [3] The police, the Attorney General contends, may have, as I found, acted beyond their power and instructions in using OC spray, but their intent was to ensure that the owner recovered the car from Mr Slater and Mr Wirehana without risk and without any breach of the peace. Resort was had to the spray because Mr Slater and Mr Wirehana would not leave the car and Mr Slater's arrest and detention resulted from his own aggressive response. Had he responded co-operatively, as Mr Wirehana did, that is where it would have ended. [4] As the Judge in the District Court found, the Attorney General contends, the force the police then used to restrain Mr Slater, which included handcuffing at the scene and wrist and ankle strapping at the police station, was reasonable. The police had to resort to both to protect themselves and to prevent Mr Slater from harming himself. The length of the restraint justifies, at most, a compensatory award in the vicinity of $3,000.Principles[5] The purpose of an award of damages for unlawful arrest and false imprisonment, and any related use of force, is to vindicate the right infringed; as Scott LJ said in 1944 'to give reality to the protection afforded by the law': Dumbell v Roberts [1944] 1 All ER 326; Blundell v Attorney General [1968] NZLR 341, CA, 341, McCarthy J. And what Scott LJ then said bears repeating:Personal freedom depends upon the enforcement of personal rights; and the primary personal right, apart from habeas corpus, is the common law right of action for damages for trespass to the person, which is called 'false imprisonment' a trespass which has involved interference with personal freedom. By the common law there is no fixed measure of damages the more high handed and less reasonable the detention is, the larger may be the damages; and, conversely, the more nearly reasonable the defendant may have acted the smaller will be the proper assessment.[6] That assessment embraces the extent to which the one whose rights were infringed contributed. If he or she acted unreasonably, provocatively or aggressively and the police, on the instant, made an error of judgment, that can result in any award of damages being reduced even to a nominal award. Quite why that is so is not settled doctrinally and the questions involved are subtle: Caie v Attorney General[2005] NZAR 703, Fisher J. But the cases are consistent and clear: Craig v Attorney General (1986) 2 CRNZ 551, Tompkins J; Attorney General v Niania [1994] 3 NZLR 106, Tipping J; Niao v Attorney General (1998) 5 HRNZ 269, Randerson J and Coster v Attorney General (HC Wellington, CP 144-95, 5 March 1998, Doogue J). [7] Exemplary damages will only be awarded when there has been intentional wrong doing which is 'particularly appalling': A v Bottrill [2003] 2 NZLR 721;McDermott v Wallace [2005] 3 NZLR 661. Public law damages are to vindicate the right, not to punish, and where damages are given in tort cannot be given twice over:Simpson v Attorney General [1994] 3 NZLR 667, CA, Attorney General v Udompun[2005] 3 NZLR 204, CA. [8] In England, there is the semblance of a scale, related to time detained:Thompson v Commissioner of Police of the Metropolis [1997] 2 All ER 762. Awardsin New Zealand for detention for a matter of hours, as happened in this case, and related torts, are also generally consistent. $5,000 damages was awarded, for instance, in Neilsen v Attorney-General [2001] 3 NZLR 433 (CA); (2001) 6 HRNZ 334; (2001) 19 CRNZ 1, where the detention lasted one and a half hours; also inCraig, where it lasted two - three hours, and in Niania where it was five – six hours. [9] But everything depends on the case. Even a short detention can found a much higher award when aggravated. In Niao Randerson J awarded $17,500 damages, where the time detained was one – two hours, but aggravated by police conduct afterwards.Conclusions[10] Until they used the pepper spray, the police, I consider, acted responsibly and reasonably; first at 9.10 pm when they responded to a report that the car occupied by Mr Slater and Mr Wirehana appeared to have crashed in Dawson Road, Otara. [11] At Dawson Road there were no signs of a crash. The car was damaged and partly off the road over a driveway, immobile. The police needed, as they did, to wake Mr Slater and Mr Wirehana, if only to check what their state was. That both were intoxicated and there were spirits bottles in the car was clearly a cause for concern. The officers intervened minimally by taking the car keys. Consistent with their duty they set about identifying the owner. [12] When the managing director of the rental car company, the owner of the car, confirmed that he wished to repossess it that night, as he was entitled to do and as happened at 10.40 pm, the police were right to be present. He could have been at risk and there could have been a breach of the peace. They were right also to act as intermediaries. The officer who opened the car door and shook Mr Slater's foot to awaken him could not be criticised. Any use of force was notional. Had Mr Slater reacted then as he did to the use of pepper spray, the police might well have been justified using force to protect themselves and, as the Judge in the District Courtfound, to have arrested Mr Slater for disorderly conduct and to have held him for a breach of the peace. Then, as the Judge held, Mr Slater would have had no case. [13] The officers went beyond their duty, their power, and their own General Instructions, however, when they used pepper spray pre-emptively to abstract Mr Slater and Mr Wirehana from the car; and, as I held, that cannot be severed from what followed. They were not then entitled, as they might have been otherwise, to arrest and restrain, having provoked Mr Slater's response, even over response. Their want of power, as I held, continued even if the force that they exerted to restrain Mr Slater was, as the Judge held, reasonable. There was then an unlawful arrest and false imprisonment and battery. There was also a breach of s 22 of the New Zealand Bill of Rights Act. [14] Mr Slater was held for in excess of seven hours, and that is primary. Counterbalancing that, the police acted in good faith. Their want of authority, though critical, was momentary. Mr Slater, by overreacting aggressively in contrast to Mr Wirehana, contributed to his own arrest and detention. He was subjected, as the Judge found, to no more than reasonable restraint. Mr Slater can only then, I consider, be entitled to damages in tort, compensating him for the time he was held in custody. He cannot be entitled to exemplary damages. Nor to public law damages to vindicate his right under s 22 of the Bill of Rights Act. [15] Mr Slater's claim for damages as high as $20,000 is overstated; as overstated as the Attorney General's response, $3,000, relying on a Thompson calculation without starting or end points, is understated. Mr Slater will have a compensatory award of $5,000 damages; an award that would serve also, if public law damages were awarded, to vindicate his s 22 right. [16] Mr Slater, who is legally aided, is entitled, if only for the fund, to costs, as I should have thought, in this Court on the appeal, at scale 2B. He is entitled also to costs at that scale, to the extent that it applies, for the hearing in the District Court. He is entitled to disbursements in both as fixed by the Registrar. If there is any issue, however, counsel for the Attorney General is to file a memorandum within tenworking days of this decision and Mr Slater's counsel to reply within the ten working days succeeding. _____________ P.J. Keane J