THE ATTORNEY-GENERAL V P F SUGRUE LIMITED CA CA106/02

THE ATTORNEY-GENERAL V P F SUGRUE LIMITED CA CA106/02 26 August 2003IN THE COURT OF APPEAL OF NEW ZEALAND CA106/02BETWEEN THE ATTORNEY-GENERAL Appellant AND P F SUGRUE LIMITED Respondent Hearing: 12 and 13 February 2003 Coram: Gault P Keith J Blanchard J Tipping J Anderson J Appearances: J C Pike and A S Butler for Appellant D L Mathieson QC, D J C Russ and A Shaw for Respondent Judgment: 26 August 2003JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J[1] On 6 December 1990 at Wainihinihi, Westland, the Department of Conservation (DOC) seized a Hughes 500C helicopter owned by the respondent, P F Sugrue Ltd (Sugrue), and used by it for the hunting and recovery of deer. Sugrue is a company owned by two brothers, Michael and Patrick Meates. The seizure was made by a warranted officer, Mr Olde-Olthof, under s13(1)(c) of the Wild Animal Control Act 1977:13 Powers of warranted officers(1) Every warranted officer holding a warrant for the purposes of this Act may, on production of his warrant of appointment if so required, in the exercise of his duty,— (c) Seize all nets, traps, snares, tranquillising drugs, ammunition, firearms, poisons, vessels, horses, dogs, aircraft, vehicles, and devices that are about to be used or are being used or have been used in contravention of this Act, or that he has good reason to believe are about to be so used or are being so used or have been so used:[2] Mr Olde-Olthof believed that the helicopter had been used on several occasions for the illegal hunting of deer, in contravention of the Act, in particular on 26 September 1990 in an area in the Lake Sumner Forest Park reserved for recreational hunting. The circumstances in which the seizure came to be made will be described in detail later in this judgment. [3] On the day of the seizure the helicopter was flown by a Civil Aviation pilot to Wigram Airforce Base near Christchurch. Subsection (2) of s13 provides:(2) Where any article or animal used in the commission of an offence is seized by a warranted officer it shall be retained by the Director-General pending the trial of the person from whom it was seized for the offence in respect of which it was seized. If proceedings are not taken within 12 months against the person from whom the article or animal was seized, it shall, at the expiry of that period, be returned to him. Where proceedings are so taken against the aforesaid person, the article or animal shall, when the proceedings are completed, be returned to that person unless the Court, where it enters a conviction, directs that the article or animal or any other article, animal, or aircraft used in the commission of the offence but not seized by a warranted officer be forfeited to the Crown, in which case the article or animal shall be forfeited to the Crown accordingly, and shall be disposed of as the Minister directs.[4] Eight days later, on 14 December, the helicopter was unconditionally released to Mr Michael Meates at Wigram. Subsection (5) of s13 provides:(5) Notwithstanding the foregoing provisions of this section, the Director-General may, if he thinks fit, at any time restore any animal or thing removed or seized by a warranted officer under this section to the person who owned or was in possession of the animal or thing at the time when it was removed or seized, either unconditionally or upon compliance with such conditions (including payment to the Crown) as the Director-General thinks fit.[5] After its release the helicopter was found by an engineer engaged by Sugrue, Mr Laing, to have a damaged compressor which would make flying dangerous. There was an issue at trial concerning the cause of that damage and when it had occurred. The position taken by the Crown was that it must have occurred before the seizure. There was never, on any view of the matter, any suggestion by Sugrue thatthe damage had resulted from negligence on the part of DOC or anyone for whom DOC had responsibility. The trial Judge, Chisholm J, found that the damage had most probably been caused by ingestion of a foreign object, very likely a twig, when the helicopter was landing at Wigram. [6] Sugrue replaced the compressor but the replacement almost immediately proved unsatisfactory and a further compressor had to be located in the United States, transported to New Zealand and installed. The helicopter was not able to fly again until 21 January 1991. [7] In the aircraft at the time it was seized was a rifle specially modified for hunting from a helicopter. It belonged to a Mr Cook, who was a contract shooter for Sugrue. The rifle was not returned until a request was made to DOC in March 1991. It was alleged that the detention of Mr Cook's rifle severely restricted Sugrue's ability to use the helicopter for deer hunting after the helicopter had again become operational. Mr Cook is not a party to the proceeding. [8] The seizure occurred at the height of the deer hunting season. Sugrue says it caused major disruption to its business in that season and in subsequent seasons, and that the eventual consequence was the financial failure of the business. [9] DOC brought a prosecution against Sugrue for breach of the Wild Animal Control Act, but at a jury trial in 1993 Sugrue was found not guilty. A proposed prosecution of Mr Michael Meates did not proceed. [10] Nearly six years after the seizure, on 5 December 1996, Sugrue initiated a proceeding against the Attorney-General on behalf of DOC. The statement of claim bore little resemblance to that on which the matter finally went to trial before Chisholm J. The original pleading centred around extravagant allegations that officers of DOC had conspired by lawful or unlawful means to interfere with Sugrue's business. There were allegations of deceit, fabrication of evidence, tampering with documents, suborning witnesses and perjury, all said to be with intent to damage Sugrue. None of these grossly improper and unfounded allegationswas ultimately pursued. It is only fair to say that Sugrue was not at that time represented by its present counsel or their instructing solicitor. [11] An amended statement of claim was filed on 28 April 2000 in which those allegations were not pursued and the previous causes of action were reduced to trespass to chattels and malicious prosecution and, for the first time, there appeared an allegation of breach of s21 of the New Zealand Bill of Rights Act 1990:21 Unreasonable search and seizureEveryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.[12] An attempt by the appellant to have the Bill of Rights claim struck out on the basis of a statute bar or undue delay was unsuccessful. Master Venning ruled in a judgment delivered on 28 September 2000 that s4(1)(d) of the Limitation Act 1950 had no application. That section provides:4 Limitation of actions of contract and tort, and certain other actions(1) Except as otherwise provided in this Act, the following actions shall not be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say,— (d) Actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.Master Venning concluded that a "sum" is "quite different from a discretionary award of damages for breach for the Bill of Rights Act" and that an award of such damages, not being provided for in the Bill of Rights (as to which see Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667), was not to recover a sum recoverable by virtue of an enactment:The wording of s4(1)(d) contemplates that the sum (i.e. the damages) is expressly recoverable for breach of the Act. There is a distinction between the Act creating a remedy which clearly it does not, and the Court in the exercise of its discretion holding that a remedy is appropriate in certain circumstances as the Court did in Baigent's Case.[13] The Master also rejected the proposition that a plaintiff relying upon the assertion of rights under the Bill of Rights was under an obligation to pursue them and claim with due diligence; but, he said, if there were a due diligence requirement, whether Sugrue had been in breach of it should be determined by a full analysis of the factual background to the claim and the steps taken by Sugrue, which would more appropriately be undertaken at trial rather than at an interlocutory stage. [14] After a 16 day trial in the High Court at Christchurch, Chisholm J delivered a reserved decision on 3 May 2001. He found "after a good deal of reflection" that in carrying out the seizure DOC had acted lawfully because there was enough for Mr Olde-Olthof to have the necessary "good reason to believe" in terms of s13(1)(c). That meant that the cause of action in trespass failed. So, too, did the allegation of malicious prosecution. (As there is no appeal in relation to the latter head of claim we need say no more about it.) But the Judge found for Sugrue on the Bill of Rights claim, holding that the seizure, though lawful, had been unreasonable. He also found that the Bill of Rights claim was not statute-barred. He wasnot persuaded that it would be appropriate for the Court to refuse to entertain the plaintiff's [Bill of Rights] claim on account of laches. If any such factor arises it should reflect in the willingness of the Court to grant relief, not as a bar to the claim.[15] As compensation (Baigent damages) for the unreasonable seizure, Chisholm J made awards in respect of loss of income in the 1991 financial year of the company and in three subsequent years totalling $278,206, to which he added special damages (the cost of replacing the compressor) of $83,586.28. He also awarded interest on the total of $361,792.28 at the rate of 7.25% from 28 April 2000, which was the date on which the Bill of Rights compensation was first sought. [16] From that judgment the Attorney-General appeals, seeking to overturn the finding that the seizure was unreasonable and challenging, as well, the Judge's approach to the award of damages. The Crown also contends that the Bill of Rights claim was made too late and should not have been allowed, either because of the statute-bar in s4(1)(d) or because of undue delay on the part of Sugrue in bringing its claim.[17] Sugrue cross-appeals against the finding that there was no trespass (unlawfulness) involved in the seizure. It also seeks an increase in the damages and asks for exemplary damages, which Chisholm J declined.The compressor and the cause of the accident[18] The first matter which Mr Pike, for the Crown, sought to raise in this Court concerned the Judge's finding on the cause of damage to the compressor, which counsel endeavoured to undermine by disputing that the compressor exhibited at the trial was in fact the one found to be damaged and removed from the helicopter by Mr Laing when it was restored to Sugrue on 14 December 1990. Mr Patrick Meates gave evidence that he had stored the compressor in his workshed and forgotten about it until shortly before the trial when his memory was jogged by reading briefs of proposed evidence. Mr Pike expressed scepticism about this evidence, but his main point was that in October 1991 Sugrue had made an insurance claim, evidently unsuccessfully, in respect of the compressor damage and had submitted to its insurer a report by Mr Laing which referred to metal damage. Yet there was no sign of such damage on the exhibited compressor. The Crown had sought to persuade the High Court that the damage must have resulted from a small piece of metal, like a washer, having come loose and entered the compressor. If that were the cause, it was most likely to have happened before the seizure, it was submitted, because, if it had occurred during the flight to Wigram there would have been an immediate rise in temperature which the pilot would have observed. [19] Members of this Court pointed out to counsel that such an attack on the provenance of the exhibit necessarily carried with it the implication that Mr Patrick Meates had either been untruthful in his evidence about finding the compressor in his shed or had mistaken another compressor (coincidentally damaged by what the experts said was the comparatively rare event of foreign object damage) for the one removed from the helicopter. Yet no such suggestion had ever been put to Mr Meates, nor had it been directly suggested to Mr Laing that he too was identifying the wrong compressor. In the absence of cross-examination along theselines it was not appropriate, we considered, that the challenge to the exhibit could be pursued on appeal. [20] Mr Pike then accepted, rightly in our view, that on the basis that the compressor produced and identified by Mr Meates had come from the helicopter on 14 December 1990, the Judge could properly find in accordance with the evidence that the damage to it had been caused by the accident of a twig being ingested as the helicopter was landing at Wigram.Circumstances of the seizure[21] Over the three months before the seizure DOC had received a number of reports of suspicious behaviour by Sugrue's helicopter (which bore the registration number ZK-HPS) or by a helicopter which was similar to it. In a memorandum to DOC's head office seeking authority to exercise power under the Wild Animal Control Act to seize the helicopter Mr Olde-Olthof referred to these incidents, somewhat embellishing them. But it is accepted that, save for the incident in the Lake Sumner recreational hunting area on 26 September 1990, neither individually nor collectively could they have provided good reason to believe that the Sugrue helicopter had been used in contravention of the Act. At best the information given to DOC about other incidents could do no more than raise suspicion. [22] For use in deer shooting and recovery a helicopter was required to have a licence under the Act (commonly called a WARS licence) and had to display a marking, in the form of a letter on the background of a rondel painted on its side. ZK-HPS's WARS marking was a yellow G on a black rondel. There had been reports in October 1990 that ZK-HPS, or a helicopter of the same appearance, had been observed flying, and in one case carrying deer, with its markings covered up. That was said by DOC staff to be a common practice of illegal hunters. ZK-HPS had also been reported flying again over the Lake Sumner recreational hunting area in that month. At trial, however, Mr Olde-Olthof had to admit that, although he had conveyed to DOC's head office that these were definite instances of illegal hunting, the reports were in fact of little probative value. On one occasion, it transpired, the helicopter was not actually sighted because of low cloud. Of another, Mr Olde-Olthof had to accept that it could not prove unlawful hunting. In respect of the October sighting at Lake Sumner, Mr Olde-Olthof conceded that no information was given about the height at which the helicopter was travelling and there was accordingly nothing to indicate that it was searching for deer on that occasion. [23] Chisholm J concluded that the reports in question were "founded on rumour and speculation and in some cases with no foundation at all". [24] The only report of any substance was therefore the incident at Lake Sumner on 26 September 1990. This first came to the attention of DOC on 28 September by way of a telephone call from a hunter, Mr Foster. The DOC officer who took the call noted in an information report sheet that Mr Foster had reported a Hughes 500 helicopter shooting deer and that the sign on the side of the helicopter was a yellow "6". Another DOC officer, Ms Croawell, spoke to Mr Foster and obtained a better description which she recorded as "Black top, Silver bottom machine". She looked quickly through DOC's records of WARS registered helicopters and reached the conclusion that the helicopter must be Sugrue's. There was no other helicopter matching that description. She made the assumption that because it had a rondel the helicopter must be WARS registered, and that the "6" must be a "G". Ms Croawell took account of her knowledge of the common practice of taping over numbers to disguise them. She inferred that the letter was a "G" because that fitted with the only helicopter on the WARS list (of 52) with a silver top and black bottom, namely ZK- HPS. It is worth noting that Mr Foster had made a further call to another DOC officer, Ms Morris, on 2 October. The note of that report referred to a "Hughes 500, black with silver-grey underside" and a "yellow 6" or taped over "G". [25] The incident on 26 September had also been observed by two other hunters, Mr Fey and Mr Forrester. All three hunters made written statements to DOC officers – in two cases Mr Olde-Olthof – in November 1990, i.e. before the seizure. Two said they had seen a helicopter hunting in the recreational area between 9.30am and 10.30am on 26 February. The third, Mr Forrester, timed the incident as occurring between 10.15am and 10.45am. The statements were relatively detailed concerning the hunting activities. Each hunter viewed the helicopter from a different position.[26] In his statement Mr Foster identified the helicopter as a Hughes 500C model with black upper top and grey underbelly and with red tips on its rotors. (The colour of the rotor tips, although Mr Olde-Olthof did not appreciate it at the time, was actually common to all helicopters of this type.) On its side, Mr Foster said, was a yellow letter which "resembled a G". He said that "without a doubt" the photograph (of ZK-HPS) shown to him by Mr Olde-Olthof was a photograph of the helicopter he had seen. He had viewed the helicopter through his binoculars. [27] Mr Forrester described the helicopter as black and silver (or grey). He too identified it as appearing to be ZK-HPS on being shown a photograph. Mr Fey recorded seeing a black and silver Hughes 500 with a V tail. "On the side of the helicopter I observed what appeared to be the number six. The colour appeared to be black". He was at a distance of about half a mile but was close enough to be able to give a description of what the shooter was wearing ("dark clothing and what appeared to be white gumboots"). He too identified the helicopter as ZK-HPS from a photograph shown to him by Mr Olde-Olthof. [28] In his report seeking permission to seize ZK-HPS Mr Olde-Olthof advanced four reasons why seizure was "imperative":Chain of evidence. To prevent ongoing unlawful activities. To show other WARS operators that we will not tolerate unlawful hunting activities. To maintain credibility with the public and farmers.Mr Olde-Olthof also indicated his intention to obtain a search warrant, believing that this was necessary for the exercise of the power of seizure. It has become clear that this belief was erroneous. We need say no more about the warrant which Mr Olde- Olthof subsequently obtained. It is not relied upon by DOC. [29] Following the granting of permission by DOC's head office, Mr Olde-Olthof and other DOC officers, accompanied by police officers, arrived at Sugrue's farm at Wainihinihi at around 8.30am on 6 December 1990. Mr Olde-Olthof sought to question Mr Michael Meates about his movements on 26 September. Mr Meates atfirst said he thought he had been in Haast flying the helicopter. He then produced his pilot's logbook which contradicted that statement and appeared to show that he had not flown between 24 September and 17 October. He said that if he was not flying, as appeared to be the situation from the record in the logbook, he would have been working on a gold claim operated by a Meates family company, Redman Mining Ltd. Mr Meates also told Mr Olde-Olthof about a helicopter which he said DOC staff had known about in early November, a Hughes 500 with colours identical to ZK-HPS and a WARS number 6. (This assertion was, of course, contradicted by DOC's records, as examined by Ms Croawell. There was evidence at trial of some contemporary correspondence within DOC referring to a helicopter understood by DOC staff to be piloted by a Mr Nolan. Mr Meates accepted at trial, however, that the DOC correspondence had actually been referring to Sugrue's helicopter which DOC staff mistakenly thought Mr Nolan had been using.) [30] Mr Olde-Olthof did not take steps to check Mr Meates' story with Redman Mining. Nor did he make any inquiry of Mair Venison about sales to them by Sugrue on 26 September or the day following, despite being told by Mr Meates that deer shot from ZK-HPS were always freshly delivered to Mair. [31] Mr Meates was afforded the opportunity to go into town to take legal advice. On his return some hours later, the seizure proceeded. It was then found that a gauge in the helicopter was not working. Mr Laing drove over from Ashburton to repair it. After that was done, in the late afternoon, a Civil Aviation Pilot, Mr Senn, under instructions from DOC, flew the helicopter to Wigram. Representations for its release were made by Sugrue's solicitors and it was released on 14 December. [32] On 11 December 1990, in a report to his superiors on the seizure, Mr Olde- Olthof stated:The helicopter ZK-HPS was seized as a critical part of the chain of evidence in two (2) unlawful hunting operations. Further reasons for the seizure of the helicopter was [sic] to prevent ongoing unlawful hunting and the disposal of the helicopter to places unknown and for the further reason formal witness identification.Was the seizure lawful?(a) Good reason to believe[33] The Judge held that there was good reason to believe that ZK-HPS had been used in contravention of the Wild Animal Control Act and that the seizure was accordingly lawful. But he did so only after "a good deal of reflection". Referring to the incident on 26 September, he said that it was a clear case of illegal hunting contrary to the Act and that the key issue was whether there was "enough evidence to link HPS and the rifle to the illegal hunting". He considered that Mr Olde-Olthof was not entitled to rely on Ms Croawell's unequivocal identification of ZK-HPS. He had earlier criticised her for inferring that the reported marking of 6 was a G and concluding that the offending helicopter must have been a WARS registered machine. The Judge referred to the need for care before relying on identification evidence "as the basis for a conviction" and said that Ms Croawell had thrown caution to the winds by converting a possible identification into an unequivocal identification. [34] But, the Judge said, Mr Olde-Olthof had been entitled to take into account that a photograph of ZK-HPS in DOC's possession showed a black top and light coloured bottom and that its WARS identification was the letter G. Moreover, despite the flaws in the identification process, Mr Olde-Olthof was entitled to take into account that the three hunters had been prepared to back up their identification with signed statements. [35] In support of Sugrue's cross-appeal, Mr Mathieson QC submitted that, on an objective view, the hunters had not, even collectively, "afforded any reliable identification". None of them, it was argued, had been certain that the marking was the letter G. Evidence had been given that the colour of helicopters seen at a distance is problematic. The process leading to identification was flawed because only one photograph was shown. There should have been a montage. ZK-HPS also had a distinctive white tail which counsel said none of the hunters had mentioned. (But Mr Fey mentioned the shape of the tail he saw: see para [27]). Counsel adopted the Judge's criticisms of Ms Croawell's processes, saying that she had looked only atWARS registered helicopters, ignoring New Zealand Forest Service helicopters and ignoring also the possibility that the helicopter at Lake Sumner had come from the North Island. It was submitted that DOC may not at the time have held a complete set of photographs, even of WARS registered helicopters. [36] There had, Mr Mathieson said, been a failure to check Mr Michael Meates' alibi or to check with Mair Venison whether carcasses had been brought in at the relevant time. Mr Olde-Olthof's fixed view that Sugrue was guilty had led him, it was submitted, to fail to consider inferences consistent with innocence. [37] We have no doubt that Chisholm J was right to find that Mr Olde-Olthof did have "good reason to believe" that the helicopter, and the rifle found in it and seized with it, had been used in contravention of the Act on 26 September. There was, in our view, more than ample material on the basis of which Mr Olde-Olthof could properly form that belief, and there is nothing to suggest that he did not honestly so believe on 6 December, whatever his general attitude to Sugrue may have been. [38] It is important to remember that "good reason to believe" is not the equivalent of a prima facie case. While "good reason" is an objective standard and there must be something giving rise to more than mere suspicion or surmise, the material on which a decision is taken to make a seizure under s13(1)(c) need not have a cogency which will survive the intensive scrutiny of cross-examination at a subsequent criminal trial. In fact, the material need not even be admissible at trial:Auckland Medical Aid Trust v Taylor [1975] 1 NZLR 728, 735; Rural Timber Limited v Hughes [1989] 3 NZLR 178, 183. [39] While Ms Croawell's investigations were conducted at speed, we consider that the Judge, in his criticism of her, under-estimated the significance of the record she consulted and what it revealed. There was justification for her conclusion that because a rondel had been seen on the side of the helicopter by one of the hunters, it must be a WARS registered helicopter, and therefore she could confine her attention to DOC's list of such helicopters. It is now suggested that she should have looked at NZFS helicopters, but there is nothing in the evidence indicating any likelihood that a government owned machine may have been used to poach deer; nor would it haveseemed at all likely that any other helicopter without a WARS registration would bear a rondel. It is worth noting that Mr Michael Meates conceded in his evidence that after a good deal of investigation no one has identified a black and silver Hughes 500 helicopter which could have been operating in the South Island at the relevant time, other than ZK-HPS. Mr Alty, a DOC solicitor, gave evidence that a list available to him in January following the seizure showed only two other WARS registered machines with the letter G. One, from the North Island, was blue and silver with a yellow rondel. The other, from Kaikoura, was blue and white, with a white rondel. Neither is likely to have been confused with ZK-HPS, which had a black rondel. [40] Ms Croawell had what seemed to be a clear description of a helicopter from Mr Foster. It appeared to tally with the Sugrue helicopter, and with no other. The 6 could well have been a disguised G. In fact, in his statement, made before any decision to seize ZK-HPS, Mr Foster actually said he had seen a marking resembling a G. [41] As well as Ms Croawell's advice, Mr Olde-Olthof also had written statements from the three hunters, who were independent of each other in their observations, and each of whom had plainly observed illegal hunting. Not only did each describe a helicopter which, on the basis of Ms Croawell's advice, could only be ZK-HPS, but the hunters had positively identified it from a photograph. We do not see much force in the criticism made by counsel for the respondent of the fact that some of the hunters were shown only a single photograph. Identification of the Hughes 500 helicopter by that means does not involve the same subtleties and hazards as identification of a human being. All had already described seeing a black and silver machine before being shown the photograph, which was confirmatory only. It would be asking entirely too much of an investigating officer in these circumstances to expect him to anticipate expert optical evidence at a trial. Taken in its entirety, the material before Mr Olde-Olthof strongly suggested that the helicopter was ZK-HPS. It was also reasonable for him to believe that the rifle found in it was the rifle used by the shooter observed on 26 September. Nor does it follow that, because further investigations might have supported the denials from Mr Michael Meates, Mr Olde-Olthof lacked, on the basis of the information he actually had, the requisite "good reason to believe". [42] We conclude, in agreement with the Judge, that Mr Olde-Olthof had good reason to believe that the respondent's helicopter had been used in breach of the Act, and, we think, amply so.(b) Improper purpose or unreasonableness[43] Neither in the High Court nor at the hearing before us did Mr Mathieson QC seek to assert that it was also necessary, in order for the seizure to have been lawful, that Mr Olde-Olthof had to be exercising the statutory power of seizure for a proper purpose. Nor had there been any express pleading that his purpose was improper. The challenge to his purpose was confined to the reasonableness of the seizure in Bill of Rights terms, to which we advert later in this judgment. [44] After reserving our decision we invited written submissions on the question of whether and how Mr Olde-Olthof's purpose or purposes might be relevant to the lawfulness of the seizure, even if good reason existed for him to believe that the helicopter had been used in contravention of the Act. We took this step because it seemed to us that this question might not arise merely in relation to reasonableness in the context of the Bill of Rights claim. The issue of its relevance to lawfulness had been raised from the Bench during oral argument but not taken up by counsel. [45] Responding to our invitation, Mr Mathieson submitted that the Judge had found, in relation to reasonableness, that Mr Olde-Olthof's "primary justification" was to create a "chain of evidence". Even if there were other reasons, that was said to be his dominant reason. It was not a proper purpose. That alone would make the seizure unlawful. It was also, in the circumstances, irrational; it is accepted by the Crown that it was not necessary for DOC to take the helicopter into custody for any forensic purpose. Mr Mathieson submitted that it is to be inferred from s13(1)(c) that there can be only two purposes which can properly underlie a seizure, namely facilitating forfeiture by Court order and preventing "imminent" further offending using the seized item. The Crown had conceded in the High Court that forfeiturewas never a real possibility and there was said to be no evidence that Mr Olde-Olthof believed, or had good reason to believe, that the helicopter was on 6 December about to be used again in contravention of the Act. It was submitted that it was not a proper purpose that seizure would deter others from unlawful hunting or that it would maintain DOC's credibility with the public and farmers. It was suggested by counsel that, but for the irrational "chain of evidence" reasoning, the helicopter would not have been seized. Because that was an irrational reason, it was said, the seizure was not for a proper i.e. statutory, purpose and was unlawful. [46] Mr Pike, for the appellant, stressed that in his two memoranda to his superiors Mr Olde-Olthof had given other reasons for seizure. As well as the "chain of evidence", he had mentioned the need to prevent ongoing unlawful hunting, the need to show other WARS operators that unlawful hunting would not be tolerated and the maintenance of DOC's credibility with the public and farmers. Of these, only the chain of evidence was irrelevant to the particular circumstances. Furthermore, it was submitted, the Department, including Mr Olde-Olthof, had always treated the exercise of power under s13(1)(c) as enabling seizure for the purpose of seeking a confiscation order – chattels are seized to give a court effective power to consider confiscation on conviction. Because these other (proper) purposes were being pursued, the power of seizure could not be said to have been used for an improper purpose. Mr Pike cautioned against the endorsement of any argument which would effectively lead to a damages action for administrative law error, pointing out that there is already available a right of action for Baigent damages under the Bill of Rights and the ability to claim in tort for misfeasance in public office where there is, as he said, at least reckless indifference to the existence of the power or the legitimacy of its use and an appreciation of likely economic harm to the plaintiff. In a private law tort claim, Mr Pike said, the inquiry should be confined to the issue of whether the impugned act was intra vires the statutory power. [47] The validity of certain administrative actions can be challenged indirectly in civil proceedings for the purpose of determining private law rights. Such a challenge is referred to colloquially as a 'collateral attack' or 'collateral challenge'. For example, in Cooper v Wandsworth Board of Works (1863) 14 CB (NS) 180; 143 ER 414, the plaintiff successfully sued a public authority in trespass after the authorityhad demolished the plaintiff's house. The authority was purporting to rely upon its powers under dangerous building legislation, but this was challenged by the plaintiff and held to provide no justification because the authority had acted contrary to principles of natural justice by not allowing the plaintiff a right to be heard. It is to be remembered that at the time Cooper v Wandsworth was decided collateral challenge was a primary means of impugning judicial and administrative action. [48] In New Zealand, too, collateral challenges have commonly been made, for instance, to bylaws and regulations in civil proceedings (eg The King v Broad (1915) NZPCC 658 and F E Jackson & Co Ltd v Collector of Customs [1939] NZLR 682) and in defending criminal proceedings (eg McCarthy v Madden (1914) 33 NZLR 1251 (FC) and Reade v Smith [1959] NZLR 996) and to particular decisions made in exercise of statutory powers (eg Sellers v Maritime Safety Inspector [1999] 2 NZLR 44). In all of the cited cases the challenge succeeded. They may be contrasted with cases such as Hill v Wellington Transport District Licensing Authority [1984] 2 NZLR 314 (CA) in which administrative decisions relating to a particular individual, particularly those allegedly affected by procedural error, may be treated as valid until a court decides to set it aside, a decision denied to Mr Hill. [49] Over recent decades New Zealand law concerning the remedies available in respect of administrative action has largely avoided some of the complexities to be seen in cases such as O'Reilly v Mackman [1983] 2 AC 237, Boddington v British Transport Police [1999] 2 AC 143 and Neat Domestic Trading Pty Ltd v AWB Ltd(2003) 77 ALJR 1263: see eg Royal Australasian College of Surgeons v Phipps[1999] 3 NZLR 1, 11-12 (an issue not affected by the decision of the Privy Council in Phipps v Royal Australasian College of Surgeons [2000] 2 NZLR 513 para [2]). We need not consider what the limits to collateral challenges may be because we have come to the conclusion that Sugrue would not have succeeded in a direct challenge to the seizure in review proceedings for the reasons we now give. [50] In his report to his superiors of 5 December 1990 seeking authority for the seizure, Mr Olde-Olthof gave four "imperative" reasons for seizure:Chain of evidence. To prevent ongoing unlawful activities. To show other WARS operators that we will not tolerate unlawful hunting activities. To maintain credibility with the public and farmers.In the report of 11 December 1990, prepared after the seizure, he stated that a further reason was to preserve the helicopter for forfeiture by preventing "disposal of the helicopter to places unknown". [51] In order to ascertain whether any of these purposes was improper it is desirable to begin by briefly considering s13 of the Act in its place in the general scheme of the Wild Animal Control Act. The Long Title records that it is "An Act to make better provision for the control ofwild animals and the means of regulating the operations of recreational and commercial hunters, including wild animal recovery hunting using aircraft so as to achieve concerted action and effective wild animal control". Section 4 provides:4 Wild animals to be controlled(1) This Act shall apply to all land, having regard to the provisions of any Act applying to the land, and shall be for the purposes of controlling wild animals generally, and of eradicating wild animals locally where necessary and practicable, as dictated by proper land use. (2) This Act shall be administered, having regard to the general purposes specified in subsection (1) of this section, so as to— (a) Ensure concerted action against the damaging effects of wild animals on vegetation, soils, waters, and wildlife; and (b) Achieve co-ordination of hunting measures; and (c) Provide for the regulation of recreational hunting, commercial hunting, wild animal recovery operations, and the training and employment of staff. It is a feature of the Act that it confers upon the Minister and the Minister's delegate, the Director-General and any officer or employee of DOC (s6), very broad powers to facilitate these objectives. Section 8(4), in particular, allows the Minister to set asideareas of land for recreational or commercial hunting, and gives the Minister powers to regulate those activities, including specifying conditions as to rights of entry and conditions as to the hunting of any species of wild animal. [52] To facilitate enforcement of the Act, warranted officers are given extensive powers of search and seizure which are contained in s13. The power given by s13(1)(c) to a warranted officer is exercisable where "nets, traps, snares, tranquillising drugs, ammunition, firearms, poisons, vessels, horses, dogs, aircraft, vehicles and devices" are about to be used or are being used or have been used in contravention of the Act. A primary purpose for the seizure of such an item in that context is plainly one of preventing and deterring breaches of the Act. The power is expressly exercisable in circumstances where there is good reason to believe that there has already been use of the item in contravention of the Act. It is not restricted to circumstances in which a breach is presently occurring or where is good reason to believe that there will be a future breach. We therefore reject the argument for the respondent that the power can be used only where a future breach is imminent. There is no such limitation apparent in the language of the provision. This suggests that one purpose of conferring the power of seizure is to enable the warranted officer to take steps to ensure that a seized item, believed to have been used in offending, is not disposed of, concealed or taken out of New Zealand prior to the trial of any prosecution and therefore made unamenable to any forfeiture order following trial. That view receives support from the direction for retention of a seized item pending trial (subs(2): see para [3] above) and from comments made in Parliament when s13 was amended to introduce power to seize aircraft: (1982) 445 NZPD 1851. In this connection, it is also to be remembered that there is a power, which DOC promptly exercised in this case, to release a seized item like a helicopter either unconditionally or on conditions (such as a prohibition on disposal etc): s13(5). We agree then with the submission made on behalf of the Crown that it is legitimate for a seizure to be made for a purpose of putting DOC and the Court in a position where forfeiture will be available as an effective sanction. [53] It is clear also that Parliament must have intended that seizure can be effected for the purpose of obtaining evidence for a prosecution. The small items referred to in s13(1)(c) (nets, traps, snares etc) may well need to be presented as exhibits at trial.Although large items like vehicles and aircraft would not normally be presented as exhibits – photographs will suffice – they may need to be detained and removed for forensic examination. If it is thought desirable, they can be returned before trial on the condition that they are available if the court requires it. [54] We consider, further, that while a seizure must be made primarily for one or more of (a) preventing and deterring a breach or further breach by the owner or user of the seized item or (b) rendering it more easily amenable to eventual forfeiture or (c) a forensic purpose, it is legitimate for the warranted officer to have in mind additionally, as Mr Olde-Olthof clearly did, the deterrent effect on others who become aware that DOC has undertaken a seizure, and the signal that is thereby sent to members of the public, including farmers whose land may be affected by hunting activities, that DOC is intent on enforcing the Act. Those additional considerations, whilst not authorised purposes of seizure, are not irrelevant in the context of the exercise of this kind of statutory power. Indeed, it would be common knowledge amongst professional and amateur fishermen and hunters in this country that immediate seizure of equipment used in or associated with a breach of fish and game legislation is to be expected if a law enforcement officer has reasonable grounds for believing that it has been used in breach of the legislation. The circumstances in which seizures may be made must also be a relevant consideration. So long as good reason to believe exists, officers acting in the field (mountains etc) must not be required to meet unreal judgment standards. That view is supported by the procedure for assessment and release of seized items. [55] It is indisputable that Mr Olde-Olthof believed that ZK-HPS had been involved in a number of instances of hunting of deer contrary to the Act. Furthermore, as the Judge below has held and we have confirmed, he had good reason to believe that was so in relation to the first incident at Lake Sumner. Although the other reports about the helicopter could not be substantiated, they too provided some basis for concern about Sugrue's continuing activities. As appears from his reports, Mr Olde-Olthof was plainly intent on preventing illegal activity by seizing the helicopter and the rifle and was therefore acting for a purpose for which the statutory power was primarily conferred. He was also acting for the authorised purpose of having the helicopter available for forfeiture, if that were ordered.Although with the benefit of hindsight and when the expertise of DOC's regional solicitor, Mr Alty, was brought to bear, forfeiture was not pursued as a realistic possibility, this is not to the point. The evidence against the respondent at the time, the desire to prevent further offending and the ease with which the aircraft could have been disposed of were factors which in combination could have led a reasonable officer to decide in favour of seizure. This is especially so given that the officer would have been aware that an early decision could be made about returning the helicopter, subject to any appropriate conditions. It was not illegitimate for Mr Olde-Olthof in those circumstances to have regard also to showing other WARS operators that DOC would not tolerate unlawful hunting activities and to the maintenance of DOC's credibility with the public and farmers. [56] But it is said that the real reason for the seizure was Mr Olde-Olthof's mistaken belief that the helicopter was needed for forensic purposes. Chisholm J described this belief as "irrational" which may in all the circumstances have been a little harsh. The respondent's argument was that this rendered the seizure decision unreasonable in administrative law terms and hence, it was said, unlawful. We do not accept this argument. In the first place, as we have found, a seizure can be lawfully made under s13(1)(c) for forensic purposes. Even if, however, in the particular circumstances a reasonable officer would not have seized the helicopter for such a purpose, it does not follow that the decision made by DOC's head office to allow Mr Olde-Olthof to proceed with a seizure was unreasonable. The focus must be on that decision as a whole, not simply on one facet of the reasoning of Mr Olde-Olthof. Unfortunately, with the passage of time and the death of one of the senior officers it is not possible to say to what (if any) extent DOC's decision was really influenced by Mr Olde-Olthof's mistaken belief, which would seem unlikely to have been shared by head office. The important point, however, is that if overall it was not unreasonable for DOC to decide to seize the helicopter in the particular circumstances, the fact that part of Mr Olde-Olthof's reasoning was mistaken would not vitiate the decision. [57] When giving his evidence, eleven years after the event and long after he had ceased to work for DOC, Mr Olde-Olthof was still inclined to defend what he did by asserting that ZK-HPS was needed as part of a chain of evidence. Chisholm J wasquite right to call this his "primary justification". But Mr Olde Olthof's floundering attempts to defend himself on that point should not obscure what is plain from the contemporary documents, namely his reports to his superiors (see paras [28] and [32] above), that he had genuinely believed the helicopter had been used in contravention of the Act and was also motivated by entirely proper purposes, especially the prevention of ongoing unlawful hunting using the helicopter. Having considered the entirety of Mr Olde Olthof's evidence, with all its inconsistencies, we have not been persuaded that in reality his misguided belief in the need for a chain of evidence so dominated his thinking, and the Department's decision to authorise him to carry out a seizure of the helicopter, that, where objectively good grounds existed for his belief that it had been used in contravention of the Act, the seizure can nevertheless be said to have been unlawful. [58] We have accordingly concluded that Chisholm J was right to find that the seizure was not unlawful and that the tort of trespass was not committed in relation to the helicopter and the rifle. The respondent's cross-appeal therefore fails.Was the seizure unreasonable in terms of s21?[59] We put aside for the moment the limitation/delay defences pleaded and argued by the Crown, in respect of which Chisholm J ruled in favour of Sugrue. [60] The Judge reached the conclusion that the seizure, although lawful, was in breach of s21 of the Bill of Rights. He did so, it would appear, because he considered that the purposes for which Mr Olde-Olthof exercised the power of seizure were not justified or (in the case of the "chain of evidence") were irrational. He took the view that "there was not the slightest justification for believing that the seizure of HPS and the rifle was necessary to prevent further offending" by Sugrue. He said that while deterrence is a legitimate purpose of punishment for an offence, it is unlikely to provide a legitimate reason for seizing the object with which it is alleged the offence was committed. Additionally, he concluded, forfeiture was never a real possibility, so that reason for seizure was "even more untenable".[61] We take the Judge's point that forfeiture was unlikely ever to be ordered as part of a punishment if there were a conviction of Sugrue for offending at Lake Sumner on 26 September. But, as has probably already emerged from what has been said in this judgment about the lawfulness of the exercise of the s13(1)(c) power, we do not accept the Judge's analysis in other respects. First, as already explained, our view is that the reasonable grounds for the belief that Sugrue had contravened the Act were a good deal stronger than Chisholm J appears to have thought. Secondly, the prevention and deterrence of further offending is a primary purpose of the power of seizure and, on the basis of the material before Mr Olde-Olthof, there was some reason to think that Sugrue would continue with unlawful activities if not "grounded" by seizure of its helicopter. (We should emphasise that we are not saying that Sugrue was actually guilty of any offending, merely that it was not unreasonable for Mr Olde-Olthof and the Department to have thought so on 6 December 1990 on the available information.) [62] A matter which has concerned us, and of course it was pressed by Mr Mathieson, is the appearance of disproportion between the evidence against Sugrue and the nature of the offending, on the one hand, and the value of the items seized and the economic consequences of deprival, on the other. Seizure is a drastic step if employed in relation to a relatively venial offence where it is likely to cause economic hardship. But the reasonableness of a seizure has to be judged in light of the circumstances at the time. In that connection it is to be noted that when solicitors for the respondent made representations to DOC seeking return of the helicopter it was not suggested that the seizure had been unreasonable. Two crucial events would not have been anticipated at the time, namely the accident to the compressor and the failure of the prosecution. What would have seemed to an objective observer the probable course at the time of the seizure was that consideration for release of the helicopter would follow within a short period – but sufficient to have preventative and deterrent effect on Sugrue – and then would be released in working order with relatively little disruption of Sugrue's legitimate business, which, on the basis of the pilot's logbook, must in any event have seemed far from continuous, even making allowance for seasonal factors. The case against Sugrue would, we think, have also appeared quite strong. Temporary removal of the helicopter and rifle would not have seemed disproportionate. While the illegal taking of a few deer – noxious animals –may not to some observers have seemed very serious, it was an instance of practices which were causing DOC great concern and which, particularly if conducted from a helicopter in an area set aside for and frequented by recreational hunters and if apparently taken lightly by DOC, may have had the potential, if repeated, to lead to self-help remedies from hunters which might well extend to violence. DOC was aware that shots had been exchanged in the past in comparable situations. There was therefore a public safety concern for the Department. It is not without significance that in taking action in cases of this kind DOC officers customarily sought police assistance and that the police were accustomed to have firearms present. [63] It was submitted for Sugrue that it was unreasonable to proceed with a seizure without first checking with Redman Mining about Mr Michael Meates' alibi, and with Mair Venison concerning deliveries of deer. But, equally, Mr Meates had plenty of time on 6 December to speak with Redman and Mair either from his home or the office of his lawyer. He could have put Mr Olde-Olthof in touch with those organisations by telephone or obtained some proof of what he was saying by calling on them or through facsimile transmission. He did not do so. Mr Olde-Olthof was entitled to be suspicious about the apparent gaps in the pilot's logbook which Mr Meates produced. He was not obliged to check Mr Meates' story before effecting a seizure, any more than the police in Castorina v Chief Constable of Surrey (The Times, 15 June 1988) were obliged, despite Mrs Castorina's apparent good character, to check her alibi before arresting her for involvement in a burglary. [64] The decision to effect seizure was therefore not unreasonable in the circumstances. Nor was it unreasonable in the manner in which it was conducted. The DOC party arrived at a reasonable hour (8.30am). Mr Michael Meates was able to leave the farm to take legal advice in private before the seizure occurred. He himself said in evidence that it was "quite a friendly encounter", by which we take it he meant friendly in the circumstances, rather than relaxed and jovial, because he also complained about Mr Olde-Olthof's attitude. The following evidence of Mr Patrick Meates would seem fairly to state the tone of the proceedings:q. that the whole atmosphere apart from the fact they were trying to take your helicopter was relatively relaxed and friendlyit was very restrained, we were courteous and polite at all times but we weren't very happy. q. MrOlde-Olthof however wasn't unfriendly, aggressivehe had his moods. q. what sort of moods did he havewell he could be nice one minute but he could also be quite forceful in his questions too.This does not convey a picture of inappropriate behaviour by Mr Olde-Olthof and the DOC personnel. There was certainly no suggestion that the police acted in a discourteous manner. We reject out of hand the argument for the respondent, understandably pursued without enthusiasm before us, that the seizure was unreasonable because the police brought along firearms, locked up out of sight, never produced and unknown to the respondent for some years. [65] The length of the seizure was also not unreasonable. The helicopter was returned in eight days. The rifle was held for a longer period but it did not belong to Sugrue and when eventually a complaint was made by Sugrue about its retention, it was promptly returned. Until that time DOC had been given no reason to believe that the retention of the rifle was a cause of particular concern. [66] In summary, we differ from the Judge's assessment that the seizure was unreasonable. In our view there was no breach of s21. The seizure was both lawful and not unreasonable. The Crown's appeal succeeds on this basis.Limitation/delay[67] Even if we had taken the view that the seizure was in breach of s21 of the Bill of Rights we would not have granted any remedy other than a declaration to that effect. No remedy in Baigent damages would have been given because the Bill of Rights proceeding was not brought until 28 April 2000, more than nine years after the seized items were returned to Sugrue in December 1990 and March 1991. Mr Mathieson, who was not responsible for the delay, very properly informed the Court that by 11 December 1995 the respondent had all the relevant documentary material (other than some fax messages of such insignificance that we were not referred to them). In fact, as Mr Mathieson also said, the copy of Mr Olde-Olthof's report made to his superiors after the seizure on 11 December 1990, and containing his reasons for seizure, was given to the respondent as early as 5 April 1991. The four day criminal trial had concluded on 19 August 1993. The Baigent decisionitself was delivered in this Court on 29 July 1994, after which time the right to bring a claim for compensation for breach of one of the rights guaranteed by the Bill of Rights was established and, because of the publicity given to the judgment of this Court, it must have been well-known to the respondent's then legal advisers. [68] Even when allowance is made for the need to obtain all relevant information and for the illness and death of counsel originally instructed by Sugrue, the Bill of Rights claim, which was not foreshadowed in the original statement for claim or otherwise signalled until 2000, came far too late. [69] A claim of this nature is not governed by s4(1)(d) of the Limitation Act 1950, which is a provision directed to claims for amounts required to be paid by the terms of an enactment, including claims for unliquidated amounts to be fixed by the Court in the exercise of a discretion: Green v Randle [1970] NZLR 237; Rowan Companies Inc v Lambert Eggink Offshore Transport Consultants B.O.F [1999] 2 Lloyds R 443.Baigent damages are a "sum" but they are not "recoverable by virtue of [an] enactment". The Bill of Rights does not provide for them. It was this Court inBaigent which recognised the need for an effective remedy and itself provided for a monetary remedy to be available in vindication of a breach of a right in appropriate circumstances. The availability of the remedy is dependent upon proof of a breach of the Bill of Rights but it is not the statute which makes the awarded sum recoverable. The claim for the compensation thus is not for a "sum" within s4(1)(d). Nor is it barred by any other provision of the Limitation Act. [70] It does not, however, follow that a claim of this nature, for monetary compensation, should be able to be brought no matter how belatedly the claimant chooses to put it forward. Baigent damages are a form of compensation which the court awards, as we have noted, in the exercise of a discretion. In that respect they bear a resemblance to compensation awards in equity. And, as with equitable awards, the court should be able to refuse monetary relief if the plaintiff delays too long in bringing a Baigent claim. The court must have a degree of flexibility in determining how long a delay is too much. All the circumstances, including those in which the cause of action arose, whether the alleged breach of the plaintiff's rights may have had an effect which excuses the delay and whether the delay hasprejudiced the defence of the claim, should be considered. Appropriate and significant weight should obviously be given to the fact that the claim is one for breach of a fundamental human right guaranteed by the Bill of Rights. But it can be expected that the court will still be guided to an extent by the periods set for the bringing of common law and statutory claims by the Limitation Act, just as it is when there has been a delay in commencing a claim in equity: see generally Matai Industries Ltd v Jensen [1989] 1 NZLR 525. [71] Mr Mathieson drew our attention to the Privy Council's observation in Durity v Attorney General of Trinidad in Tobago [2002] 3 WLR 955, 964 that where there is no express limitation period for the commencement of constitutional proceedings the court should "be very slow indeed to hold that by a side wind the initiation of constitutional proceedings is subject to a rigid and short time bar ". We have no difficulty in accepting that view, but the position in Durity was that the defendant was attempting to invoke a statutory one year limitation period which was both rigid and short. That is a quite different situation from a New Zealand court exercising a discretion not to allow a damages claim to be pursued after an unjustified delay of some years and where the relief sought is monetary compensation available as an exercise of judicial discretion. [72] Mr Mathieson also pointed out that in response to Baigent, in a report entitledCrown Liability and Judicial Immunity (NZLC R37), the Law Commission did not recommend enactment of a statutory limitation period. But the Commission simply did not address this question. [73] Nor do we accept the argument that by dismissing a Baigent claim for delay the Court would be denying the plaintiff an appropriate and effective remedy and in so doing placing New Zealand in breach of its obligations under the International Covenant on Civil and Political Rights, itself affirmed in the Bill of Rights. It would not follow from the exercise of the discretion to dismiss a monetary claim for undue delay, that the Court would on the same basis dismiss a claim for non-monetary relief, such as a declaration of breach of a guaranteed right. It might well remain appropriate, despite the delay, to vindicate the plaintiff's right in that way, andthereby admonish the Crown and warn against any repetition of the conduct in question.Result[74] The Attorney-General's appeal is allowed and the judgment for the respondent in the High Court is set aside. The cross-appeal is dismissed. The Attorney-General is entitled to costs in this Court in the sum of $12,000 together with disbursements, to be fixed if necessary by the Registrar. It will be for the High Court to fix costs in that Court in accordance with this judgment.Solicitors: Crown Law Office for Appellant Dean Russ, Christchurch for Respondent