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Court of Appeal of New Zealand |
Last Updated: 26 March 2025
IN THE COURT OF APPEAL OF NEW ZEALAND C.A.129/96
BETWEEN JUDITH MARY GARRETT
Applicant
AND THE ATTORNEY-GENERAL
Respondent
Coram: Richardson P Gault J Henry J Keith J Blanchard J
Hearing 23 & 24 October 1996
Counsel: GM Illingworth for Applicant
JC Pike and PJ Smith for Respondent Judgment: 19 December 1996
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
Introduction
Mrs Garrett brought proceedings against the Attorney-General in respect of the New Zealand Police and/or the Commissioner of Police for the tort of misfeasance in public office. She said that she had suffered loss of her job, loss on sale of her home and humiliation because of the failure of the police to investigate and properly deal with her complaint that in the early hours of the morning on Sunday 20 March 1988 she was raped at the Kaitaia Police Station by a policeconstable named Ogle. In essence, Mrs Garrett alleged that there had been a police cover up at the expense of her reputation. She was not, of course, claiming damages against the Crown for the rape itself. It could not possibly have been said that whatever Constable Ogle did was related to his police duties and so something for which his employer was responsible.
The matter came to trial before Temm J and a jury in the High Court at Whangarei in April 1994. The stance taken by the defendant concerning the alleged rape was to make a formal denial but otherwise not to contest in any significant respect Mrs Garrett’s account of what Constable Ogle did to her. For present purposes it can be assumed that a rape of Mrs Garrett did occur though it has to be borne in mind that Ogle was never charged with it, was not a witness (he is now apparently living in Australia) and has had no opportunity of putting before a Court his version of events.
The jury found that although the initial investigation in March and April 1988 by Sergeant Yates, the sergeant in charge of the Kaitaia police station, had not been carried out properly, his failure in that respect had not been actuated by malice, (defined for the jury as acting or failing to act through an improper motive at Mrs Garrett’s expense). The jury also found that when another investigation was carried out by Detective Inspector McFadden after Mrs Garrett made a formal complaint through her solicitor on 24 June 1988 the decision not to prosecute Ogle, which had been made at a high level in the police, was not made improperly. A third cause of action concerning police failure to investigate the circulation of material about Mrs Garrett which she said constituted a criminal libel of her was also rejected by the jury but she does not now seek to take that matter further.
The Judge entered judgment for the defendant in accordance with the verdicts of the jury. The case comes before this Court on an application by Mrs Garrett for a new trial. Temm J ordered it to be removed into this Court under s64 of the Judicature Act 1908 because the applicant wished to argue that the Judge misconducted the trial - an allegation of apparent bias on his part in favour of the defence. It is not said that there was actual bias, but the appearance of it. The
other challenge to the jury’s decision is on the ground of misdirection of the jury in the Judge’s summing up.
Facts
On the evening of Saturday 19 March 1988 Sergeant Yates and Constable Ogle came to the Awanui Hotel, north of Kaitaia in a police vehicle at about 10.30
p.m. They came there from a tavern in Kaitaia where they had met a woman called Karen Panther. They gave her a lift to Awanui. Another police officer, Constable Fettis, had been playing in the band at the Awanui Hotel that evening. After the legal closing time the three policeman were drinking in the private bar. The jury was asked to draw an inference that the after hours drinking, the use of police transport for private purposes and Constable Fettis’s moonlighting in the band (to the knowledge of Sergeant Yates) were things of which Sergeant Yates did not wish his superiors to become aware.
Mrs Garrett, a women then aged 44, was also present at the tavern. Her then boyfriend, Mr Atkinson, was working behind the bar. She anticipated that after he finished his duties he would come around to her home at Ahipara.
At some stage Constable Ogle borrowed Mrs Garrett’s car so that he could take Karen Panther to her home. After dropping her off he returned to the Awanui Hotel. Mrs Garrett was then prevailed upon to give him a lift to his home but when they reached Kaitaia he instead asked to be driven to the police station. There, she says, he put handcuffs on her and against her will performed sexual acts on her including sexual intercourse. Afterwards she wiped herself using a checked shirt which Ogle put into a cupboard. Despite her shock she had the presence of mind to attempt to leave some evidence in the police station of having been there. She put her fingerprints on the desk on which intercourse had occurred and pulled out some strands of her hair. She also attempted to write a message on a note pad. It was part of her case that the police made little or no effort to follow up these “clues”.
After the handcuffs were removed Mrs Garrett drove Ogle to the home where he lived with his wife and children and then went to her own home arriving at about 3.30 am. She had a bath. Mr Atkinson arrived and noticed something was wrong. Upon being questioned she told him Ogle had raped her. She also told her 16 year old daughter when the latter awoke at 8 a.m. After discussing the matter with her daughter she decided to tell Constable Fettis what had occurred. He informed Sergeant Yates of the complaint against Ogle. Sergeant Yates visited her that evening and heard her story, including the “clues”. She showed him a bruise on her wrist. She says that she told him she had bitten Ogle’s shoulder during the attack.
Mrs Garrett’s evidence was that she told the sergeant that she wanted Ogle to be arrested and locked up. But according to Sergeant Yates, that was not so: Mrs Garrett told him that she did not want to make an official complaint and wanted what had happened “dealt with within the family”; and she made it very clear to him that she wanted the matter disposed of without criminal charges being brought against Ogle. That is what he proceeded to do, and, depending upon which of them is believed on this point, either he did so at her request or he was able over the next few days to persuade her to let him handle the matter unofficially.
He admitted under cross-examination that at the time he was aware of acting in contravention of Police General Instructions which require complaints against a member of the police force to be reported promptly to the District Commander, taken down in writing and signed by the complainant. The Instructions also require that the complaint be brought, as soon as practicable, to the attention of the Commissioned Officer then on duty or responsible for the area. None of this was done.
Mrs Garrett’s evidence was that about 9.30 p.m that same evening Sergeant Yates telephoned her; that he told her he had confronted Ogle and that Ogle had “collapsed”, was “in a terrible state” and had “admitted everything”. Sergeant Yates’ version is that Mrs Garrett is mistaken about this; that he would not have
said it because it was not a fact. Ogle had admitted having sex with her but “by consent”.
There was a further discussion between them the next evening, Monday, at Mrs Garrett’s home. She still wanted Ogle arrested, she says, but the sergeant told her that he had seen Mr Atkinson who was concerned about publicity if there were to be a formal complaint and its impact on his job. (Mr Atkinson says it was Yates who suggested to him that the incident be handled internally.) Yates had also told her that he (Yates) would lose his job and so would Constable Fettis because they had broken police regulations. (Yates said in evidence that there was no reason for him to think that this was so, that Fettis was a member of a local country and western club and that he (Yates) had no problem with Fettis playing in clubs and bars.) Also her employer, the Salvation Army, would not like having one of its people involved in a scandal. And it would be terrible for her young daughter. Mrs Garrett’s evidence was that Sergeant Yates told her he could arrange for Ogle to resign immediately and be “placed under a form of house arrest until his resignation was through”. This apparently meant to her that Ogle would be taken off normal duties, including driving a police car, and kept on office work. (Yates says he told her Ogle would be put on restricted duties.) Ogle would also be given counselling for a “drinking problem and other problems.” He would be kept away from her and from Awanui and Mr Atkinson. She said there was no suggestion Ogle disputed her allegation of rape; she completely trusted Yates in the way he would handle the matter.
She asked Yates on that occasion about the need for a medical examination and says she was told that unless she was seriously hurt gynaecologically, she did not need to go through that ordeal: the police had enough evidence to show it had all happened and Ogle had admitted everything.
Sergeant Yates did proceed to interview some of those who had been at the hotel and others who knew Mrs Garrett but by 23 March had completed his investigations. He made no report. At the trial he was strongly cross-examined about his job sheets relating to his investigations and it was suggested that they were
a fabrication which had not been prepared contemporaneously and misreported much of what he had been told.
Mrs Garrett returned to work at the Salvation Army. When her supervisor returned from Australia some two weeks later Mrs Garrett told her of the rape. As a consequence of it she was having difficulty coping with her work. She had also seen Ogle in uniform driving about in a police car which disturbed her greatly.
Constable Fettis had referred a social worker to Mrs Garrett so that she could have counselling. As a result of that she spoke to a psychologist, Helen Lawsen, to whom on 15 April she made a detailed statement. It is an eight page handwritten document which concludes:
“I thought I could deal with this all. But I can’t. My job’s affected. I have lost confidence...I can’t go anywhere because I might run into him. I don’t feel I should have to give up house and job because of what he’s done to me.”
Mrs Lawsen gave a copy of this statement to Sergeant Yates on 18 April. Yates says it was through Mrs Lawsen at this meeting that he first heard about the “clues” left at the police station but by then it was too late to follow them up. It seems he did not try. Mrs Lawsen also advised Mrs Garrett of the possibility of stopping work and receiving accident compensation. Mrs Garrett did leave work after getting a medical certificate. Because of an interview with an unsympathetic Salvation Army officer, who was very sceptical about her story, she approached Sergeant Yates asking him to talk to her employers to confirm to them what had happened so that she could go back to her job when she had recovered. Yates repeated to her that Ogle was resigning and was going to Australia with his family in a couple of months time. In his evidence Yates said that on 24 April Ogle submitted an application for leave without pay for 18 months to go to Australia which Yates recommended and forwarded to his superior.
The Accident Compensation Corporation advised Mrs Garrett that it needed something in writing from the police before it could make any payment. In the middle of May Mrs Garrett therefore saw Yates and gave him some notes she had made. In them she complained that she had lost pay of $636.00 and that if she was unable to explain to the Accident Compensation Corporation why she had not gone to a doctor about the rape she would lose another $1,584 “protecting someone who hurt me and destroyed my life, and protecting police.”
She complained also that because Yates had not actually seen her employers, merely speaking to them by telephone, she had lost credibility and probably would lose her job and the chance of promotion when her superior retired in September.
She recorded, further, that she was midway through converting her house into flats and that project “ran out of steam and money.” She owed a building supplier $1,500 and had lost 6 weeks potential rent ($660). She totalled her losses at $2,244 (a figure which it is difficult to reconcile) and concluded the note: “What are you going to do about it?”
The jury could well have taken this question to be related solely to accident compensation and the employment situation, not a request for further activity in relation to Ogle’s resignation. Sergeant Yates in his job sheet recorded telling Mrs Garrett that if she wanted money from the Police Department he would have to tell his boss and make the matter official and that she did not want this - just help with her accident compensation claim.
Yates did in fact write a letter to the Accident Compensation Corporation at Whangarei dated 17 May confirming that Mrs Garrett had made a complaint of rape on 20 March and that the medical evidence had been “destroyed following her actions immediately after” the incident. At the end of May Mrs Garrett began to receive earnings related compensation. Much later, on 16 March 1989, she was paid a lump sum of $10,000 in respect of the rape.
Because of continuing disbelief by the Salvation Army concerning the rape she resigned her job. She said she was not sure of the date of her resignation but thought it was on 18 May. If that was indeed the date of the resignation it would not have given Yates much time to react to her note by approaching the Salvation Army in person. He does not seem to have been warned that her resignation was imminent: her note speaks of her “eventually” losing her job.
In June Mrs Garrett consulted her solicitors. The senior partner, Mr Fountain, agreed to assist her in making a formal complaint to the police. She saw Sergeant Yates at her home on 24 June and a full written statement was taken. She claims that in the course of recording it Yates told her he was in trouble about the events in the hotel and asked, if she did not think it was important, that his presence at the hotel not be mentioned. But he denies making any such request and in fact the statement does include reference to his being at the hotel.
Mrs Garrett’s statement concluded: “I now wish to make a formal complaint of rape.” The police immediately set in train a formal investigation. Detective Inspector McFadden from Whangarei interviewed Mrs Garrett on 27 June in the presence of Mr Fountain. Mrs Garrett says that for the first time during that interview she realised that Ogle had denied raping her and that Sergeant Yates had not been “reporting things how they were.” She says that McFadden told her that Ogle would be charged with rape. That was also the understanding of Mr Fountain.
Detective Inspector McFadden carried out his own investigation, though it was in large part based upon the earlier Yates investigation and the disputed job sheet. He did not re-interview all the witnesses, accepting the record that Sergeant Yates had made of what he said he had been told. McFadden prepared a detailed report and submitted it to District Commander Wells as a “conversation starter” for a “more indepth discussion with you, and if you so direct, the Crown Solicitor” on the merits of the case against Ogle. He reported that it was his view that neither the version of events given by Mrs Garrett nor that given by Ogle was entirely correct “and that the answer does lay [sic] somewhere between the two.” If
pressed to choose he would favour Mrs Garrett’s version. It had remained generally consistent whereas Ogle’s account of what had gone on between them (in which he admitted intercourse but claimed it was with her consent) was “calculated and self serving.” Nevertheless, he was not entirely convinced of Mrs Garrett’s veracity. It had been suggested to him that she exaggerated and romanticised. But even without “all the doubts cast on her version by people who have no obvious motive to wish her ill” he said he would be loath to recommend a prosecution:
“The reluctance to “officially” complain for 3 months, combined with the absence of witnesses, the most unlikely scene, a police station, and as the complainant’s unchallenged version leaves open the question - did the “offender” even perceive he was in fact committing an act of rape, would leave me with some doubts.”
In his view as recorded in his report there was a prima facie case but one of insufficient strength to warrant a prosecution.
District Commander Wells wrote to the Legal Officer at Regional Headquarters in Auckland stating that he was in general agreement with Detective Inspector McFadden’s conclusions. He seems to have been heavily influenced by his view that alcohol had had a large part to play in what transpired. The delay in the investigation was “unfortunate” but “of Garrett’s own making.” He commented adversely on statements and actions attributed to her in the McFadden report, saying he could not “see a prima facie case being upheld” and recommended that there be no prosecution on the ground that there was insufficient evidence to support a prima facie case. Mr Wells was not called as a witness.
The Legal Officer, Mr Matthews, who did give evidence, replied to this letter from his office in Auckland. He said that he and another legal adviser were “both agreed on the central facts as indicated in [the McFadden] report” and that he had taken the opportunity of consulting the Chief Legal Adviser, Superintendent Trendle, and the Director of Internal Affairs, Superintendent Mears. He deliberately was not commenting on the actions of Sergeant Yates because they
were the subject of a separate inquiry. He said that it was “essential in deciding whether or not a charge of sexual violation was to be preferred, to view the evidence quite independently of the fact that the suspect is a Constable” and that he had been at pains to do just that. The time that had been permitted to pass had not assisted in resolving areas of dispute but, even if a medical examination of Mrs Garrett had been undertaken in March, it would not have assisted in corroborating whether or not sexual violation had occurred as distinct from consensual intercourse. He referred to recent changes in rape law (in 1986) saying that, notwithstanding, where there was a dispute as to consent there would be difficulty in reaching conclusions as to guilt or even for committal to trial where there was no evidence of corroboration. He thought that the only admissible evidence would be that of the complainant, the recent complaint (to her daughter but not that to Mr Atkinson which had been elicited) and the police interviews with Ogle. Evidence of what occurred at the hotel was not of assistance regarding the issue in dispute. He preferred the evidence of Mrs Garrett and it was his opinion that she had been sexually violated. But he was
“firmly of the view that there was no prospect whatever of a Judge at the depositions hearing being satisfied as to the strength of the case and even if he was that a s347 discharge would be inevitable.”
Interrupting the narrative we comment that even allowing for the fact that this legal opinion was given only a couple of years after the changes to rape law came into effect, when perhaps their full impact had not manifested itself, the conclusion reached is surprisingly negative. It seems to overlook completely the removal of any requirement for corroboration of a complainant’s story. It does not however appear to been influenced by comments which Sergeant Yates had recorded about perceptions of Mrs Garrett’s character. Indeed, Mr Matthews advised Mr Wells that he doubted that a Judge would grant leave under s23A of the Evidence Act to permit the admission of evidence about the sexual experience of the complainant or her reputation.
In his evidence Mr Matthews, who is now an Assistant Commissioner, said that he was conscious in writing the opinion that unless the District Commander was in possession of some other information to which he (Matthews) was not privy the end result of the opinion would be that Ogle would not be charged with rape. After this advice was given a decision was taken within the police, by whom the Court was not told but it must have been at high level remote from the personnel at Kaitaia, that Ogle should not be charged with sexual violation.
The decision can be fairly criticised as unduly favourable to Ogle. It certainly seems one that would be unlikely to be taken today if similar circumstances occurred, although that comment is made with the benefit of hindsight of another eight years of the operation of the amended rape laws. The reports on the basis of which the decision was made showed a prima facie case of rape made by a complainant whom McFadden and Matthews found credible; Ogle admitted intercourse and had made inconsistent statements. It is nevertheless a long step to say that whoever in the higher echelons of the police made the decision not to prosecute Ogle was consciously abusing his decision making power in the sense of acting contrary to his duty. That certainly cannot be said of Mr Matthews in the giving of his legal opinion.
The rape had become very public knowledge in Kaitaia after the complaint had been made on 24 June. Matters then became even more difficult for Mrs Garrett as a result of the circulation of the libellous material, but its circulation was not something which was foreseeable before it occurred or for which the defendant could bear responsibility. Undoubtedly, however, it intensified the pressure on Mrs Garrett. In combination with the failure of the police to prosecute Ogle it made life in Kaitaia impossible for her. She put her house on the market and lost money on the sale price as compared with her expenditure on the property.
Sergeant Yates was charged under the Police Regulations in relation to his after hours drinking and also with neglect of duty by failing to bring to the attention of the Commissioned Officer responsible for the area as soon as was practicable that Mrs Garrett had made a complaint of sexual violation against Ogle. But he retired
early from the police before the charge could be heard. The charges were apparently not regarded as sufficiently serious to require deferment of his retirement until they could be heard.
Constable Ogle was charged with immoral or disgraceful conduct or conduct tending to bring discredit on the police for having intercourse in a police station and using police issue handcuffs when doing so. He pleaded guilty and was dismissed from the police on 15 July 1988. He appealed the penalty but his appeal was dismissed.
Police Act and Regulations
The guidelines for police internal investigations which have already been mentioned are part of the General Instructions issued by the Police Commissioner, as he is authorised to do by s30 of the Police Act 1958. That section directs all members of the Police to obey and be guided by the Commissioner’s instructions. In addition, Regulation 46 of the Police Regulations 1959 contains a long list of things which constitute offences of misconduct or neglect of duty on the part of a member of police. These include:
(37) “Failing to take due and prompt measures for the investigation of any matter requiring to be investigated or for the arrest of any offender....
(39) Failing to report promptly accidents, offences, or unusual occurrences.”
Sergeant Yates agreed under cross-examination that he knowingly breached the latter requirement in March 1988. It was, on the evidence, open to the jury to conclude that he also had knowingly breached the former though he was not directly asked about his awareness of that provision.
Application for new trial
Where a proceeding has been removed under s64 of the Judicature Act 1908 this Court exercises the same powers as are available to the High Court in the matter. Rule 494 of the High Court Rules authorises the making of an order for a new trial, in the overall discretion of the Court, only where, in the opinion of the Court, there has been a miscarriage of justice. Without limiting the circumstances in which the Court may hold that a miscarriage of justice justifies a new trial, the Rule declares that it may so hold if, inter alia, the Judge has misdirected the jury on any material point of law. The Court may find however in a particular case that there has been such a misdirection but at the same time conclude that it has not led to a miscarriage. It will not have done so if the Court believes that on the evidence at trial a properly directed jury could not reasonably have come to a different verdict.
The pleadings
The starting point in considering whether there has been a misdirection on the law in this case is the way in which it was pleaded. No relevant amendment of the pleadings was sought before or during the trial. The statement of claim alleged the rape and the complaints made by Mrs Garrett to Constable Fettis and Sergeant Yates on 20 March 1988. It alleged that Yates undertook, in his official capacity, to investigate and that he had a duty to do so. Paragraph 7 of the statement of claim then alleged a breach of Yates’ undertaking and duty in failing to investigate and in suppressing or acquiescing in suppression of material evidence. It was pleaded (para 8) that he did so maliciously:
“that is, for an improper purpose or purposes not connected with the proper prosecution by him of his said duty as a member of the New Zealand Police, namely the protection of the interest of his colleague OGLE and/or his own interests and/or the perceived interests of the New Zealand Police in avoiding the public disclosure of discreditable matters involving a member of the New Zealand Police, namely OGLE.”
Paragraph 9 then set out particulars relied upon in support of the allegations in Paragraphs 7 & 8. These included failure to obtain, record or secure items of forensic evidence brought to Yates’ attention by Mrs Garrett and failure to act on the written statement made by Mrs Garrett and handed to Yates by Mrs Lawsen in April. A further particular was an allegation that at the relevant time Yates was less than a year away from retirement from the police and that the departure of Ogle from New Zealand on unpaid leave for a year (as envisaged by both of them) without the rape and surrounding events coming to the notice of Yates’ superiors would or could have enabled Yates to retire without disciplinary action or risking his entitlement to a pension. Also, Ogle’s unpaid leave could have enabled him to avoid facing both criminal and disciplinary charges.
Paragraph 10 alleged that these acts and omissions of Yates constituted a misfeasance in and/or an abuse of public office by Yates and such other police officers as might ultimately be found to have been involved in them.
It will be noticed that the case is not pleaded on the basis of any knowing breach by Yates of any specific legal requirement; nor do the pleadings indicate whether there is to be reliance by the plaintiff upon Yates’ knowledge of any such requirement. It is however pleaded (in para 11) that “immediately subsequent to the rape” the fact of the plaintiff’s complaint and the lack of any police action by way of prosecution had become widely known, and the subject of rumour and speculation by many members of the local community; and that as a consequence of Yates’ breach of duty all or many of those persons were led, foreseeably, to the belief that the sex with Ogle had been with Mrs Garrett’s consent and that she had made a false complaint of rape. It was also pleaded (in para 13) that as a further foreseeable consequence of these matters Mrs Garrett had suffered damage in her standing and reputation within her local community, particulars of her losses being given in relation to her loss of employment and her need to sell her home.
The issues put to the jury
The issues to be put to the jury were settled by the Judge after he had received drafts from both counsel and a memorandum from Mrs Garrett’s trial counsel, Mr R E Harrison, entitled “List of Topics For Summing Up (Non- Exhaustive)”. The first paragraph of that memorandum set out what counsel put forward as being the elements of the tort of abuse of public office. It read:
“i) Abuse - knowing abuse/violation of powers/duties or action from corrupt or improper motives; ill-will or spite not relied on.
The issues as relevantly framed went to the jury in the following form:
First Claim
If the answer to Question 1 is “No” proceed to Question 6.
If the answer to Question 1 is “Yes”, then:
If the answer to Question 2 is “No” proceed to Question 6.
If the answer to Question 2 is “Yes” then:
(a) Financial loss, on the sale of the house
and/or
(b) Financial loss by loss of income.
and/or
(c) Damage to her reputation
and/or
(d) Humiliation and/or anxiety and/or distress
[The issues relating to damages have been omitted]
Second Claim
In giving a ruling on the subject of the issues Temm J recorded that Mr Harrison had requested that the reference to “actuated by malice” in Issue 2 be replaced by a reference to abuse of office, but the Judge preferred to leave the phrase in its existing form.
The summing up and verdicts
After giving general directions and indicating to the jury that a negative answer to Issues 1 & 6 would mean they need go no further on those respective issues, the Judge gave a summary, which in the typescript covers about four pages, of some matters requiring consideration on question 1: “Did Yates fail properly to investigate and/or deal with the allegation of rape made by the plaintiff on 20 March 1988?” He told the jury that Mrs Garrett was claiming that there was a deliberate concealment of the truth by Yates who had deceived her. He referred to Yates’ duty under the General Instructions to report her complaint and to the defence contention that Mrs Garrett did not want a report to be made by Yates; that what she wanted was to get rid of Ogle out of Kaitaia, and Yates acted on her wishes. The defence argument had implicitly been that it “now lies ill in her mouth to complain that he did not report the matter when she expressly said to him that she did not want him to.” In commenting on this the Judge reminded the jury that in her evidence Mrs Garrett had said that she did indeed tell the police “not to carry on for the reasons she gave, and you will remember that she had been persuaded to it and so on.”
Temm J suggested to the jury that the question for decision on Issue 1 might be “whether or not in the circumstances Mr Yates should or ought to have reported to his superiors what Mrs Garrett made known to him.” The Judge referred to evidence from Mr Matthews that sometimes citizens supply information to police on condition no prosecution occurs. He then said:
“You will ask yourselves I imagine, if Mr Yates, having discussed this with the plaintiff, was told by her she wanted to keep it quiet, is that what he ought to have done. And if that is what he ought to have done then it may take you very quickly to an answer to the question whether he failed properly to investigate or deal with the allegation.”
That direction may well have been the reason why the jury answered “Yes” to the first question and may explain any suggested inconsistency with their next answer.
The Judge then turned to Issue 2: “Was that failure [to investigate etc] actuated by malice?” He gave the following explanation:
“That means, in the context of this case, a failure that was caused by an act or omission either through spite and ill will (which as I apprehend is not really the issue here), or by the public official, Mr Yates, a police constable with the rank of Sergeant, acting or failing to act through some improper motive. The improper motive, it is argued for the plaintiff and something she has to prove, is that Mr Yates failed to report the matter and kept it secret from his superiors to protect the reputation of the police and at the expense of the plaintiff. That is the argument. He kept it secret to protect the reputation of the police and at the expense of the plaintiff. It was also put to you in closing that he was protecting his own reputation and protecting himself from prosecution by internal police authorities, for drinking after hours and so on.”
It is apparent that the Judge in framing the issue used the expression “actuated by malice” as a label and made it very clear to the jury that he was doing so; that they were not to think of malice in the sense of spite and ill will. What they were to consider and rule upon is whether Yates had acted or omitted to act with an improper motive. It is important to remember at this point that the jury reached this question only if they had answered “Yes” to the first question upon which the Judge had directed them to consider whether Yates should have reported Mrs Garrett’s complaint; and the jury had heard Yates’ admission of breach of his duty to report. They could hardly have overlooked it. The “argument” which Temm J laid out for the jury was whether Sergeant Yates’ knowing failure to report the rape complaint was done to protect the reputation of the police and his own position (therefore with an improper purpose) and, the Judge had added, “at the expense of the plaintiff.”
The Judge says nothing here about Yates’ understanding or knowledge about whether his action or omission would be at Mrs Garrett’s expense. That was
to be dealt with under Issue 4, the subject of which was the foreseeability to Yates of loss of various kinds to Mrs Garrett.
The jury gave a negative answer to Issue 2. They cannot, in light of their answer to Issue 1, be taken to have found that Yates did not knowingly breach his duty to report. The jury must therefore have concluded that he was not involved in a cover up or, if he was, that had no intention of harming her - that his failure to report was not intended to be “at her expense” and that his predominant purpose was to respond to her wish that the matter not be reported.
The jury had been told that if they answered “No”, as they did, to question 2, they need not answer questions 3 & 4. (They had also been told, on the basis of a concession by the plaintiff, that the answer to question 3 should be “No” if they got that far.) Consequently, they did not go on to consider foreseeability.
The jury answered question 6 in the negative. They therefore had no need to consider the “malice” point in relation to the second claim (the decision not to prosecute after the formal complaint on 24 June 1988). The Court is accordingly not concerned with any question of misdirection about the second claim.
Misdirection and the tort of misfeasance in public office
The complaint of misdirection is founded on a submission that it is sufficient to establish the tort to prove that there was a knowing breach of duty which caused harm or loss which was reasonably foreseeable. It was submitted that the issues should have been drawn accordingly and the jury expressly directed to the above effect.
It is relevant to note how this developed at trial. The hearing proceeded on the basis of the pleadings, which averred a malicious breach of duty by Yates. Particulars of the malice alleged, which constituted improper motive, were given. This pleading propounded the tort in an established and well recognised form. At the conclusion of all the evidence Mr Harrison requested an alternative formulation
also be put. This arose, he said, from the cross-examination of Yates which established that Yates knew he was breaching General Instructions, thereby opening the way for the alternative formulation which is now propounded.
It is accepted that police officers are holders of public offices for the purpose of the tort and that their employer is responsible for tortious acts done by police officers in the course of their duty.
Proceedings for the tort of misfeasance in public office, also known as abuse of public office, have never been common. Early in its development an essential ingredient was malice on the part of the defendant: a deliberate and vindictive act by a public official involving a breach of duty and directed towards the plaintiff. This has come to be known as “targeted malice”. But the tort is no longer so confined. It can also be committed by an official who acts or omits to act in breach of duty knowing about the breach and also knowing harm or loss is thereby likely to be occasioned to the plaintiff. As will appear from the following discussion, “knowing” in relation to both the breach and its effect on the plaintiff includes acting recklessly, in the sense of believing or suspecting the position and going ahead anyway without ascertaining the position as a reasonable and honest person would do.
Some formulations of the ingredients of the tort are rather more relaxed than this about the element of damage: it is said that it is sufficient to establish the tort if the plaintiff has suffered harm or loss as a result of a knowing breach of duty by an official who foresaw or ought reasonably to have foreseen that consequence. Phrased in this way the tort would resemble a claim for negligent breach of duty although there would remain an additional requirement that the official must have known he or she was acting in breach of duty or must have been reckless as to that.
The leading modern appellate decision in England is Bourgoin S.A. v Ministry of Agriculture [1986] QB 716. It came before the High Court and then the Court of Appeal on a preliminary question. The act of the Minister which had harmed the business of the plaintiff turkey distributor was the unlawful revocation of
its licence to import French turkeys into the United Kingdom. It was accepted that the Minister had acted for the purpose of protecting English turkey producers against French competition and that he knew that his action of revoking the licence was in breach of a United Kingdom obligation under the EEC Treaty and beyond the powers conferred on him by the relevant United Kingdom regulations. He also admitted knowing at the time that his act would and was calculated to injure the plaintiffs.
At first instance Mann J discussed earlier case law, including a brief dictum of the Privy Council in Dunlop v Woollahra Municipal Council [1982] AC 158. Mann J said:
“I do not read any of the decisions to which I have been referred as precluding the commission of the tort of misfeasance in public office where the officer actually knew that he had no power to do that which he did, and that his act would injure the plaintiff as subsequently it does. I read the judgment in Dunlop v Woollahra Municipal Council [1982] A.C. 158 in the sense that malice and knowledge are alternatives. There is no sensible reason why the common law should not afford a remedy to the injured party in circumstances such as are before me. There is no sensible distinction between the case where an officer performs an act which he has no power to perform with the object of injuring A (which the defendant accepts is actionable at the instance of A) and the case where an officer performs an act which he knows he has no power to perform with the object of conferring a benefit on B but which has the foreseeable and actual consequence of injury to A (which the defendant denies is actionable at the instance of A). In my judgment each case is actionable at the instance of A.” (p.740)
(As we indicate later the word “foreseeable” has been understood in a later case to have meant “foreseen” and we also read it that way.)
When the case came to the Court of Appeal Oliver LJ, speaking for the Court on this point although he dissented in the overall result, said that he too could see no sensible distinction between the two cases. He continued:
“If it be shown that the minister’s motive was to further the interest of English turkey producers by keeping out the produce of French turkey producers - an act which must necessarily injure them - it seems to me entirely immaterial that the one purpose was dominant and the second merely a subsidiary purpose for giving effect to the dominant purpose. If an act is done deliberately and with knowledge of its consequences, I do not think that the actor can sensibly say that he did not “intend” the consequences or that the act was not “aimed” at the person who, it is known, will suffer them. In my judgment, the judge was right in his conclusion also on this point”. (p.777)
Notwithstanding the submission of Mr Illingworth in this case that these observations were conditioned by the admissions made on behalf of the Minister so that any question of whether damage was foreseeable did not need to be explored, it seems that the Court did not think that it should be enough to show that the defendant ought to have appreciated the consequences of his deliberate breach of duty. We return to this question later.
The present litigation came before Anderson J on a strike out application by the Attorney-General. At that time, judgment delivered on 3 May 1993 and reported at [1993] NZHC 1518; [1993] 3 NZLR 600, the learned Judge concluded that the tort consisted of a public officer causing damage to a plaintiff by either a deliberate act or omission actuated by malice or a deliberate act knowingly in excess of official powers in circumstances where the officer knew or ought reasonably to have foreseen that the deliberate conduct would cause damage to the plaintiff. He also said that malice embraced not merely personal hostility but also corrupt or improper motives.
Since that decision of Anderson J - indeed since the trial - there have been two important cases in which the tort is discussed and its ingredients clarified to some extent. Obviously Temm J did not have the benefit of them. They are the decision of the High Court of Australia in Northern Territory v Mengel (1995) 69 ALJR 527 and the exhaustive analysis by Clarke J in his judgment in the Commercial Court of the Queen’s Bench Division in Three Rivers District Council v Bank of England (No 3) [1996] 3 All ER 558.
In Mengel it was again unnecessary to decide between actual foresight and foreseeability because, as will often be so, the action of the officials inevitably was going to cause loss. They could therefore be taken to have intended that consequence. The trial Court had found that they had acted in good faith in exercising powers to quarantine the plaintiffs’ cattle and that it had not been shown that they knew that they lacked power to do so or were recklessly indifferent about that question. The Northern Territory Government had nevertheless been held liable on the basis of the new tort enunciated by the High Court of Australia in its decision in Beaudesert Shire Council v Smith [1966] HCA 49; (1966) 120 CLR 145 where it had been held that in an action for damages on the case, a person who causes harm or loss to another as the inevitable consequence of his or her unlawful, intentional and positive acts has committed a tort against that other. A second cause of action in Mengel for misfeasance in public office had failed.
The plaintiffs unsuccessfully attempted to defend the judgment they had obtained, arguing that the inspectors had constructive knowledge that they were acting outside the scope of their authority. The High Court of Australia overruled the Beaudesert decision (in this country we had doubted it in Takaro Properties Ltd v Rowling [1978] 2 NZLR 314) and went on to consider the misfeasance allegation. Three judgments were delivered. One of them was a joint judgment of Mason CJ and Dawson, Toohey, Gaudron and McHugh JJ. They said that the weight of authority in Australia and in the United Kingdom is that misfeasance in public office is a deliberate tort but that precise definition was lacking about whether, assuming damage, it was sufficient to establish that the public officer knew that he or she is acting without authority or whether there is some additional requirement. They referred to Bourgoin for the suggestion that there might be an additional requirement of foreseeability of damage. (We have already indicated that we do not read Bourgoin in that way.)
They also mentioned without apparent endorsement a dictum in Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720 in which the Full Court of the Supreme Court of Victoria expressed the opinion that the plaintiff must be “the member of the public,
or one of the members of the public, to whom the holder of the office owed a duty not to commit the particular abuse complained of.” The joint judgment does not further discuss this point and in his separate judgment Brennan J took the contrary position. With respect, he was right to do so for if the Victorian Court was requiring the existence of a duty of care it would move the tort right into the area occupied by the torts of negligence and breach of statutory duty and leave little room for its separate operation.
The joint judgment states at p.540 that the cases do not establish that misfeasance in public office is constituted simply by an act of a public officer which he or she knows is beyond power and which results in damage. The judgment continues:
“And principle suggests that misfeasance in public office is a counterpart to, and should be confined in the same way as, those torts which impose liability on private individuals for the intentional infliction of harm. For present purposes, we include in that concept acts which are calculated in the ordinary course to cause harm, as in Wilkinson v Downton [1897] 2 QB 57 or which are done with reckless indifference to the harm that is likely to ensue, as is the case where a person, having recklessly ignored the means of ascertaining the existence of a contract, acts in a way that procures its breach.
It may be that analogy with the torts which impose liability on private individuals for the intentional infliction of harm would dictate the conclusion that, provided there is damage, liability for misfeasance in public office should rest on intentional infliction of harm, in the sense that that is the actuating motive, or on an act which the public officer knows is beyond power and which is calculated in the ordinary course to cause harm. However, it is sufficient for present purposes to proceed on the basis accepted as sufficient in Bourgoin, namely, that liability requires an act which the public officer knows is beyond power and which involves a foreseeable risk of harm.”
The latter portion of the quoted passage is not without its ambiguities - particularly in the use of the word “calculated” - and it attributes again to Bourgoin a supposed proposition that it is difficult to reconcile with the general tenor of the discussion in that case.
The Judges then say that if misfeasance in public office is viewed as a counterpart to the torts imposing liability on private individuals for the intentional infliction of harm, there is much to be said for the view that it is not confined to actual knowledge but extends to reckless disregard by a public officer of the means of ascertaining the extent of his or her power. But they reject the suggestion that it is sufficient if the public officer ought to know that the power is being exceeded in circumstances where damage is foreseeable.
In his judgment Brennan J said:
“I respectfully agree that the mental element is satisfied either by malice (in the sense stated) or by knowledge. That is to say, the mental element is satisfied when the public officer engages in the impugned conduct with the intention of inflicting injury or with knowledge that there is no power to engage in that conduct and that that conduct is calculated to produce injury. These are states of mind which are inconsistent with an honest attempt by a public officer to perform the functions of the office. Another state of mind which is inconsistent with an honest attempt to perform the functions of a public office is reckless indifference as to the availability of power to support the impugned conduct and as to the injury which the impugned conduct is calculated to produce. The state of mind relates to the character of the conduct in which the public officer is engaged - whether it is within power and whether it is calculated (that is, naturally adapted in the circumstances) to produce injury.” (p.546)
In this passage he seems to be requiring either an actual appreciation that damage is likely to flow or recklessness.
Deane J very clearly adopted the more restrictive position. After referring to targeted malice he goes on, at p.554, to say that the requirement of malice “will also be satisfied if the act was done with knowledge of invalidity or lack of power and with knowledge that it would cause or be likely to cause such injury.” [Emphasis added]
In Three Rivers District Council v Bank of England (No 3) the plaintiffs were depositors of money with the failed bank, BCCI. They sued the Bank of England for damages alleging misfeasance in public office in the performance of its public duty to supervise banking operations in the United Kingdom by wrongly granting or failing to remove BCCI’s banking licence. Clarke J had the task of determining preliminary issues. In simplified form, and putting to one side the overlay of European law, the contentions of the parties were these. The plaintiffs argued that it was sufficient, to prove the tort, for them to show that the Bank of England knew it was acting unlawfully or was reckless about that and had thereby caused the plaintiffs foreseeable loss. The Bank’s response was that the plaintiffs had to prove either targeted malice or that it knew its deliberate acts of misfeasance would inevitably and/or necessarily injury the plaintiffs.
Clarke J rejected a submission from the plaintiffs that Bourgoin was authority for the view that it is enough to show the defendant’s actual knowledge of the unlawfulness of the act together with reasonable foreseeability that it might cause damage to the plaintiffs. He took the view, which we share, that when Mann J in the passage quoted earlier in this judgment and approved by the Court of Appeal in the same case used the word “foreseeable” he must have meant “foreseen”. Clarke J pointed out that Mann J had three times earlier in his judgment referred to “foreseen” or to knowledge of the consequences. It was also an agreed fact that the Minister knew his act would injure the plaintiffs and it was not therefore being suggested that foreseeability was enough. We agree with Clarke J also that Oliver LJ’s remarks are limited to a situation in which the defendant must have appreciated the obvious consequence of a deliberate unlawful act.
The authorities subsequent to Bourgoin and prior to Mengel which are reviewed by Clarke J either favour the view he took (Gerrard v Government of Manitoba (1992) 98 DLR (4th) 167, 172 (Manitoba Court of Appeal)) or do not appear to essay a comprehensive definition of the tort and are unspecific on the particular question now being considered. In surveying the judgments of the members of the High Court of Australia in Mengel Clarke J records his impression
that the Judges who wrote the joint judgment thought that the tort should be confined and did not give approval to the foreseeability test.
It was Clarke J’s conclusion that it is not enough for the plaintiff to prove foreseeability of damage by a public official who knowingly exceeds his or her power. He commented:
“...an officer may do something knowing it to be unlawful and in circumstances where it was reasonably foreseeable that a class of persons might suffer loss, but he might nevertheless do it in the best interests either of another class of persons or indeed of the plaintiff or of the class of persons of whom the plaintiff is one. In my judgment such a person would not be acting in abuse of power, whereas it is abuse of power which is the essence of the tort.” (p.578)
Clarke J also considered in great detail whether it was necessary for a plaintiff to prove the infringement of a legal right possessed by the plaintiff; or, putting it the other way round, whether the plaintiff has to show breach by the defendant of a duty owed to the plaintiff. He concluded that it is unnecessary to do more than show “a right not to be damaged or injured by a deliberate abuse of power by a public officer.” (p.584)
Clarke J summarised his conclusions at pp.632-3 as follows:
“(1) The tort of misfeasance in public office is concerned with a deliberate and dishonest wrongful abuse of the powers given to a public officer. It is not to be equated with torts based on an intention to injure, although, as suggested by the majority in Northern Territory v Mengel (1995) 69 ALJR 527, it has some similarities to them.
(2) Malice, in the sense of an intention to injure the plaintiff or a person in a class of which the plaintiff is a member, and knowledge by the officer both that he has no power to do the act complained of and that the act will probably injure the plaintiff or a person in a class of which the plaintiff is a member are alternative, not cumulative, ingredients of the tort. To act with such knowledge is to act in a sufficient sense maliciously: see Mengel 69 ALJR 527 at 554 per Deane J.
(3) For the purposes of the requirement that the officer knows that he has no power to do the act complained of, it is sufficient that the officer has actual knowledge that the act was unlawful or, in circumstances in which he believes or suspects that the act is beyond his powers, that he does not ascertain whether or not that is so or fails to take such steps as would be taken by an honest and reasonable man to ascertain the true position.
(4) For the purposes of the requirement that the officer knows that his act will probably injure the plaintiff or a person in a class of which the plaintiff is a member it is sufficient if the officer has actual knowledge that his act will probably damage the plaintiff or such a person or, in circumstances in which he believes or suspects that his act will probably damage the plaintiff or such a person, if he does not ascertain whether that is so or not or if he fails to make such inquiries as an honest and reasonable man would make as to the probability of such damage.
(5) If the states of mind in (3) and (4) do not amount to actual knowledge, they amount to recklessness which is sufficient to support liability under the second limb of the tort.
(6) Where a plaintiff establishes (i) that the defendant intended to injure the plaintiff or a person in a class of which the plaintiff is a member (limb one) or that the defendant knew that he had no power to do what he did and that the plaintiff or a person in a class of which the plaintiff is a member would probably suffer loss or damage (limb two) and (ii) that the plaintiff has suffered loss as a result, the plaintiff has a sufficient right or interest to maintain an action for misfeasance in public office at common law. The plaintiff must of course also show that the defendant was a public officer or entity and that his loss was caused by the wrongful act.”
We are in respectful agreement with Clarke J that it is insufficient to show foreseeability of damage caused by a knowing breach of duty by a public officer. The plaintiff, in our view, must prove that the official had an actual appreciation of the consequences for the plaintiff, or people in the general position of the plaintiff, of the disregard of duty or that the official was recklessly indifferent to the consequences and can thus be taken to have been content for them to happen as they would. The tort has at its base conscious disregard for the interests of those who will be affected by official decision making. There must be an actual or, in the case of recklessness, presumed intent to transgress the limits of power even though it will follow that a person or persons will be likely to be harmed. The tort is not restricted to a case of deliberately wanting to cause harm to anyone; it also covers a
situation in which the official’s act or failure to act is not directed at the injured party but the official sees the consequences as naturally flowing for that person when exercising power. In effect this is no more than saying the tort is an intentional tort. In this context, a person intends to bring about the known consequences of his or her actions or omissions, even if other consequences form the primary motive. Bourgoin is an example. The concept of attributing intention by necessary inference in this way is well established.
The purpose behind the imposition of this form of tortious liability is to prevent the deliberate injuring of members of the public by deliberate disregard of official duty. It is unnecessary, to attain this objective, to extend the tort to catch an act which, though known to be wrongful, is done without a realisation of the consequences for the plaintiff. The law may still provide a remedy in negligence if the situation is one of those in which it is appropriate to impose a duty of care or, if the plaintiff is someone intended by statute to have the particular benefit or protection of an Act of Parliament or subordinate legislation, the plaintiff may have a remedy in the form of an action for breach of statutory duty; or the circumstances may give rise to another of the traditional tort actions, for instance, for false imprisonment or assault. In some cases, also, there may be a Bill of Rights remedy as established in Simpson v Attorney-General [Baigent’s Case] [1994] NZCA 287; [1994] 3 NZLR 667, but the present case does not involve any breach of a right guaranteed by the New Zealand Bill of Rights Act 1990 and, in any event, arose before that Act came into force. A remedy by way of judicial review may also be available to prevent the interests of a citizen being threatened or to provide relief if they are damaged. Parliament sometimes also establishes a right to compensation when powers are used to promote public interests, for instance in human or animal health. Compensation may be payable even if powers are exercised lawfully, for example, Forests Act 1949 s70A, Health Act 1956 s87, International Terrorism (Emergency Powers) Act 1987 s13 and several provisions of the Biosecurity Act 1993.
In our view this intentional tort should not be allowed to overflow its banks and cover the unintentional infliction of damage. In many cases the consequences of breaking the law will be obvious enough to officials, who can then be taken to
have intended the damage they caused. But where at the time they do not realise the consequences they will probably not be deterred from exceeding their powers by any enlargement of the tort. As Clarke J observes, they may well think that they are acting in the best interests of those persons whom they actually have in mind. In any modern society administration of central or local government is complex. Overly punitive civil laws may oftentimes deter a commonsense approach by officials to the use or enforcement of rules and regulations. We prefer to err on the side of caution and not to extend the potential liability of officials for causing unforeseen damage. To do so may have a stultifying effect on governance without commensurate benefit to the public.
With particular reference to this case, it should not be overlooked also that a police officer who breaks the rules may be subjected to an inquiry by the Police Complaints Authority, discipline under the Police legislation (as occurred in this case) and, in an extreme situation, to criminal proceedings. Those sanctions or public remedies are designed to persuade police officers to behave in accordance with the rules and, if they do not, to penalise or censure them. Those educational, deterrent and penalising effects and purposes are directed immediately at police officers. The rules and remedies do, of course, have broad indirect value to members of the public but that is not their immediate object. They can for instance be invoked even although no particular member of the public has suffered from the police officer’s breach of duty.
The common law has long set its face against any general principle that invalid administrative action by itself gives rise to a cause of action in damages by those who have suffered loss as a consequence of that action. There must be something more. And in the case of misfeasance of public office that something more, it seems to us, must be related to the individual who is bringing the action. While the cases have made it clear that the malice need not be targeted there must, as we have said, be a conscious disregard for the interests of those who will be affected by the making of the particular decision.
Conclusions
On this view of the tort it is plain that Mrs Garrett’s action against the police was bound to fail on the evidence before the Court. It would certainly have failed on the pleadings if Temm J had not wisely allowed the issues to be framed in a way which went beyond the allegations in the statement of claim. At the end of the trial Mrs Garrett did not seek an affirmative answer concerning whether Sergeant Yates had an actual appreciation that his breaches of duty, such as they may have been, were going to lead to Mrs Garrett’s suffering harm. Possibly, in the case of Sergeant Yates, that was foreseeable, as Temm J recognised in the way in which he framed the issues for the jury (and he did so broadly in accordance with the submissions made to him by Mrs Garrett’s counsel). Possibly Sergeant Yates should have foreseen that members of the public would become aware of the complaint made by Mrs Garrett and that no official action had been taken on it, particularly when Ogle could be seen in uniform driving a police car round Kaitaia; that the official inaction after a complaint of serious offending might be taken by the public to reflect police scepticism about the rape allegation; and that Mrs Garrett’s reputation would thereby suffer drastically as a result of his failure to report her complaint. It has to be said, however, that the evidence was that the rumours did not spread until after the official complaint and so perhaps cannot be laid at the door of Sergeant Yates.
Mrs Garrett did complain to Sergeant Yates about her financial difficulties - including the position about the home - but her request to him was directed to accident compensation payments and he promptly did something effective about that: she received a payment within 2 weeks. Possibly he should have appreciated from the beginning that she would feel unable to continue with her work at the Salvation Army although, equally, it may have been difficult for him to foresee how she would react over the weeks that followed the rape. And when she drew his attention to her problem with her employer and asked him to speak to the Salvation Army officer who had doubted her story she then appears to have resigned without warning to Yates before he had time to do so. It is to be observed also that Sergeant Yates was never asked by Mrs Garrett’s counsel about his appreciation of
what might happen to her if he failed to deal with her complaint in an official manner.
There is then some evidence on which it was open to the jury to conclude that Sergeant Yates committed a deliberate breach of his duty and could reasonably have foreseen that Mrs Garrett would suffer harm to her reputation and financial loss as a direct result, though the case is not especially strong and there is an element of hindsight in the criticisms made of the sergeant. The jury found that he was in breach of duty. They can be taken to have found that he did so knowingly. But they also found that he had not acted with an improper motive, namely for the purpose of a cover-up and at Mrs Garrett’s expense. That was an understandable verdict since there was nothing in the evidence suggesting that Sergeant Yates knew that by failing to report or carry out a proper investigation he was likely to cause harm of the kind alleged. It was foreseeable perhaps but neither foreseen nor bound to occur.
For these reasons we are of the view that there was no misdirection of the jury giving rise to a miscarriage of justice.
In relation to the second cause of action there is no evidence that Detective Inspector McFadden and his superiors should have appreciated Mrs Garrett’s losses. There is no evidence that they knew anything of what Mrs Garrett had said to Yates about her financial position nor were they shown to have any awareness of the spread of the damaging rumours after the formal complaint. It must be remembered in this connection that the abuse of power has to be alleged against a particular person or persons, not against the police generally. Here the decision was not made collectively by McFadden and his superiors. Even if it had been, it is not enough to lump a group of officials together and to attribute to them constructively the knowledge of one of their subordinates.
If it is assumed that District Commander Wells took the official decision not to prosecute Ogle for sexual violation by rape, it is his state of knowledge about Mrs Garrett which is relevant to the second head of claim. He was in Whangarei.
He took legal advice before a decision was made not to prosecute Ogle. His decision was flawed, for the reasons outlined in the discussion of Mr Matthew’s evidence, but there is no proof that he knowingly failed to observe any of his duties. As well, there was no evidence that he knew anything of Mrs Garrett’s situation other than what was in the McFadden report. On the basis of that limited knowledge it could not be said that he appreciated that Mrs Garrett would suffer injury or even that it should have been foreseeable to him. The second cause of action on the second limb of the tort was also not established by the evidence.
It is unnecessary to consider any question of causation: whether in view of the investigation and decision made after the formal complaint it could be said that Sergeant Yates’ default was causative of the losses said to have been suffered by Mrs Garrett.
Alleged misconduct of the Judge
We are also unable to find in the transcript of evidence or in the affidavits filed concerning the conduct of the trial anything which may have led to a miscarriage of justice. There have been strenuous criticisms made of the Judge. It is unnecessary, in the view we take, to review them in this judgment which is already overlong. The claims could not succeed on the evidence before the Court with the issues properly framed in terms of the ingredients of the tort. In fairness to Temm J, however, we should say that we are not persuaded that looking at the whole course of the trial there is an appearance of bias against Mrs Garrett or in favour of the police. Certainly there was a degree of friction between her counsel and the Judge. That is far from unusual in the tense atmosphere of a trial of this nature. In our view, however, none of the incidents deserves to be magnified for the purposes of criticism in the manner which was attempted. Juries are not to be taken to be unduly influenced in their decision making by exchanges between bench and bar. Indeed, it is to be remarked that the wisdom of the profession is that a jury may react to a perceived unfair treatment of counsel by leaning in favour of counsel’s client. Overall, the Judge kept a reasonable balance in his rulings and his summing up, read as a whole, does not present any appearance of partiality. It is
also to be observed that some of the criticisms related to parts of the trial which concerned the issue in respect of which the jury delivered a verdict in favour of the applicant.
It is regrettable that certain observations about the Judge contained in the affidavits of Mrs Garrett and her trial counsel were of the kind which was the subject of adverse comment by this Court in R v Loumoli [1995] 2 NZLR 656, 670. The subjective opinions of an interested party and her counsel concerning the appearance and manner of a Judge and the supposed effect of his conduct on jurors are of little probative force. They are also unfair to the Judge who is by custom precluded from answering such criticisms. The affidavits had been sworn not long after the Loumoli judgment was given. It is unfortunate that trial counsel did not take the opportunity of withdrawing and recasting them when the Loumoli judgment came to his attention.
We are satisfied that the Judge’s conduct of the trial could have had no improper effect on its outcome.
The application for a new trial is dismissed. We are advised that the appellant is legally aided. Costs are accordingly reserved.
Solicitors
Prendergast Recordon, Auckland, for Applicant
Marsden Woods Inskip & Smith, Whangarei, for Respondent
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