Attorney-General v Upton CA305/96 [1998] NZCA 263; (1998) 5 HRNZ 54 (2 July 1998)

Last Updated: 29 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 305/96

BETWEEN ATTORNEY-GENERAL

Appellant

AND ERIC CLIVE UPTON

Respondent

Coram: Gault J Thomas J Keith J

Hearing 28 April 1998

Counsel: H S Hancock and G A J Stanish for Appellant C B Atkinson QC for Respondent

Judgment: 2 July 1998

JUDGMENT OF THE COURT DELIVERED BY KEITH J

The Attorney-General appeals against a judgment given by Tompkins J, reported as Upton v Green (No.2) (1996) 3 HRNZ 179, requiring him to pay $15,000 to the respondent on the ground that the first defendant in the original proceedings, a District Court Judge, had failed to allow the respondent to be heard before he was sentenced on 7 December 1992 to three months imprisonment for breaching a sentence of periodic detention.

The ground for the award of damages points to just one of the problems which have plagued this affair from the outset. The amended statement of claim had at its centre the lack of a plea of guilty or a finding of guilt and a consequent lack of jurisdiction to impose the sentence. There was no distinct pleading that, following a finding of guilt and the entry of a conviction, Mr Upton was denied the right to be heard on sentence. While it was possible to plead in the alternative, it is

understandable that the plaintiff did not plead both that

• he did not have an opportunity to plead and therefore there was no finding of guilt and no conviction, and
• following entry of conviction (which would have been on a guilty plea since no evidence was called) he had not been given an opportunity to be heard on sentence.

The Attorney-General appeals on the grounds that

(1) the reasons for the finding that Mr Upton had not been given an opportunity to be heard on sentence were inadequate

(2) the basis of liability on which the Judge made the damages award was not pleaded

(3) the damages were inappropriate or excessive given Mr Upton’s prior conduct.

that

The respondent very belatedly filed a cross appeal against the Judge’s finding

when [Mr Upton] was called on the morning of 7 December 1992 the two charges were read out to him, he pleaded guilty to each, the statement of facts contained in the prosecution brief were read out and the conviction list was put to him and accepted.

The respondent also cross appealed against the amount of damages. At the hearing, Mr Atkinson, counsel for Mr Upton, did not pursue the first element of the cross appeal. Accordingly, before us, the judgment, and the extent of the damages awarded, rest only on the Judge’s finding of fact that Mr Upton was not heard before sentence was imposed.

The undisputed facts in brief were that on 30 March 1992 Mr Upton was sentenced to three months periodic detention. Before the expiry of that sentence the warden of the North Shore Periodic Detention Centre applied to the District Court at North Shore for the sentence to be reviewed on the grounds that Mr Upton had failed to comply with the sentence in various respects set out in the affidavit in support. On

16 September 1992 Mr Upton appeared on his own behalf in the District Court and contested many of the facts set out in the warden’s affidavit. The record of hearing on the information records the following decision:

Review granted.

Sentence to four months PD first report 18.9.92 Lance DCJ

Mr Upton, by contrast, said that the Judge ordered only that he serve the balance of the original periodic detention sentence which he took to be two weeks. According to Tompkins J, in that “ he is clearly in error.”

Mr Upton decided to move to Christchurch. He attended the Christchurch Periodic Detention Centre but his papers had not been transferred. When he rang his father, he was told that there was a warrant out for his arrest for breach of periodic detention and he then arranged an appearance at the Christchurch District Court on 7 December 1992.

On that day he was sentenced to three months imprisonment. The circumstances of the process leading to that sentence are disputed and are at the centre of this case. It is agreed that Mr Upton’s case was called in the morning, that he was stood down in custody until the afternoon, that he was interviewed by a probation officer who prepared a pre-sentence report and that in the afternoon he was called again and the sentence imposed.

By notice of appeal dated 21 December 1992 Mr Upton appealed against the sentence. The notice was received on 5 January 1993, the delay resulting from the fact that the relevant Court Registry was closed from 23 December 1992 to that date.

The plaintiff was released from prison on 20 January 1993 and his appeal came on for hearing before Holland J on 4 February 1993. The Judge noted that there was no record of any plea on the record of hearing. He then ruled as follows:

I have, of course, only heard one side of this matter on appeal but there

is not the slightest doubt that there is no record of a plea of guilty and without a plea of guilty there is no jurisdiction for the Judge to impose a sentence of three months imprisonment.

Following some discussion of his powers he ruled as follows:

I allow the appeal against sentence and quash the sentence. I grant an amendment to the notice of appeal to include it as being an appeal against conviction. I allow the appeal against conviction and quash the conviction.

Mr Upton filed his statement of claim, only against the District Court Judge, on 11 July 1994 and, following an application made in the following July to amend it by including the Attorney-General as second defendant and adding a second cause of action, the case was heard over three days in August 1996 with judgment being given in October of that year.

Under the amended statement of claim, the first cause of action, pleaded only against the first defendant, the District Court Judge, was a claim of false imprisonment based on the Judge’s sentencing of the defendant in the absence of a plea of guilty or a finding of guilt. As indicated, the rejection on the facts by Tompkins J of that particular cause of action is no longer directly before us. We note, as indeed Mr Atkinson recognised in his written submission, that that pleading against a judicial officer did not include any allegation of bad faith or gross negligence. By contrast the second cause of action is against the Attorney-General, rather than the Judge, and pleads breaches of the Bill of Rights.

That cause of action reads:

SECOND CAUSE OF ACTION - SECOND DEFENDANT

The Plaintiff repeats the allegations made above [we come back to them] and says:

10. THAT the hearing of the Plaintiff’s case in the District Court and his subsequent imprisonment involved serious violations of his rights and freedoms under the New Zealand Bill of Rights Act 1990 in that:

(a) he did not receive a fair hearing of his case (s.25(a))

(b) his right to be presumed innocent until proven guilty according to law, was not respected (s.25(c))

(c) his right to present a defence was not respected (s.25(e))

(d) his right to the observance of the principles of natural justice was not respected (s.27(1)), and

(e) he was arbitrarily detained in prison (s.22)

WHEREFORE the Plaintiff claims:

(a) Damages in the sum of $350,000

(b) Interest thereon

(c) The costs of this proceeding

This cause of action did not invoke any common law entitlement to be heard before sentencing, eg Evans v Bradford [1982] NZHC 32; [1982] 1 NZLR 638, or any related tort. There was a third cause of action against the Attorney-General based on alleged delay in the hearing of the appeal. It was not sustained at trial and is not pursued before us. At the trial the monetary award sought was reduced to a single sum of $200,000 for all the causes of action.

Some of the subparagraphs of paragraph 10 could be related to the sentencing stage as well as to that leading to conviction. While the “allegations” referred to at the beginning of the pleading of the second cause of action are mainly allegations relating to the process before conviction they can be read more widely as appears from the sole matter of fact that was disputed. The plaintiff pleaded simply that his case was recalled before the Judge [in the afternoon] who pronounced sentence. The statement of defence agrees with that allegation but further says

When the case was first called on 7 December 1992 [in the morning], the plaintiff made an oral plea of guilty to the charges against him. Before entering his plea the plaintiff was informed of and understood his rights relating to legal representation and was given the opportunity to obtain such representation which he refused. As a consequence of the plaintiff’s plea of guilty to the charges before the court the plaintiff was convicted and sentenced.

It followed from that denial that the defendants also denied the other two relevant allegations in the statement of claim, that is that the District Court Judge purported to

convict and sentence the plaintiff when no plea of guilty had been entered to the charges and that the sentences of imprisonment were not lawfully imposed in that in the absence of plea of guilty or a finding of guilt based upon evidence called before him, the Judge had no jurisdiction to sentence the plaintiff at all.

At this point we might note a matter which was not apparently pursued in the High Court and which was certainly not raised before us. That is that the Crown may have been prevented from pleading the defences based on the giving of guilty pleas by the holding of Holland J that those pleas had not been entered: the issues, parties and standard of proof (given that the fact was established on appeal by the defendant in a criminal proceeding) appear to be the same or essentially the same, eg Gregoriadis v Commissioner of Inland Revenue [1986] 1 NZLR 110. As well, there is no indication, notwithstanding the District Court Judge’s anger (as indicated in his evidence) at the reason for the judgment on appeal of Holland J, that the Crown sought to appeal against that judgment.

We now turn to the first and second of the Attorney-General’s grounds of appeal, relating to the finding that Mr Upton did not have the opportunity to make submissions on sentence and that that matter was not pleaded. It is convenient to consider them together.

On the face of the pleadings alone there is real force in the Attorney-General’s complaint about the relationship of the trial judge’s findings to the pleading, but a reading of the evidence provides a balance. The evidence did in fact range across the events as they occurred throughout the day, from the time Mr Upton spoke to the Duty Solicitor to the time he was sentenced and, on his version, was pulled off the stand, protesting, by two or three police officers to begin his sentence. Mr Upton’s argument in a broad sense was that he had never had the opportunity to present his version of the events relating to his compliance with the periodic detention sentence, his difficulties with the authorities in North Shore, his movement to Christchurch and his intention to complete the sentence there. He did not in his evidence draw strict distinctions between the various stages of pleading to the charges, the pre-sentence

report being obtained, conviction, his submissions on sentence and the imposition of sentence. But he was expecting, on his account, to have his say at some point.

Similarly, the evidence was concerned not just with what happened in the morning when according to the now unchallenged finding of Tompkins J the guilty pleas were entered, but also with what happened in the afternoon. The trial lasted for two and a half days. Mr Upton gave evidence for a morning and part of the afternoon. Judge Green gave evidence for approximately the same period and the duty solicitor and court officers gave evidence which was principally concerned with what happened throughout the day and not simply in the morning.

The trial Judge had the great advantage of hearing and seeing those witnesses. He plainly considered himself able to distinguish between the two periods, in particular in assessing Mr Upton’s credibility. Under the heading “Was the plaintiff denied the opportunity to be heard?” he summarised Mr Upton’s evidence relating to the afternoon session as follows:

as soon as the first defendant [the District Court Judge] had read the pre-sentence report [which had been handed to him with a list of Mr Upton’s convictions], he commenced to announce his sentence without giving the plaintiff an opportunity to say anything concerning sentence. He said it was for that reason that, after the first defendant had pronounced sentence, he asked if he could be permitted to say something in his defence.

He continued:

Understandably, the first defendant has no recollection of asking the plaintiff if he had anything to say. His evidence was that that is invariably his practice with unrepresented persons appearing for sentence. There is no other evidence that assists. Court practice does not require any record to be taken of whether a plea in mitigation is made and if so the terms. Although Mrs Malloch [the duty solicitor] has a direct recollection of dealing with the plaintiff in the morning, she has no recollection of making any submissions on his behalf in the afternoon. This is consistent with her recorded instructions that the plaintiff did not want legal representation. Had she appeared, she would have discussed the pre-sentence report with him, but she has no recollection of doing so. The first defendant’s remarks on sentence show Mrs Malloch as appearing as counsel. While that accurately

records her appearance in the morning, I am satisfied that it does not correctly record her appearing when the sentence was pronounced.

The remarks on sentence do not contain any indication that the plaintiff had himself addressed the court. The remarks centre on the pre- sentence report, the previous convictions and the facts relating to the two charges. They contain a comment “you say it is due to conflict with the warden” but this almost certainly came from the pre-sentence report which contains this passage:

Mr Upton puts his breaching the sentence of periodic detention entirely down to a dispute he had with the warden.

Mr Hancock, for the Crown, quoted the first three sentences of that passage (emphasising the third) and says that in them Tompkins J acknowledged the paucity of evidence about whether Mr Upton was denied an opportunity to say anything concerning evidence. But that ignores Mr Upton’s specific evidence which had been summarised in the preceding paragraph.

The District Court Judge also interpolated into his reading of his brief of evidence that Mr Upton’s evidence given earlier that day “prompted a distant memory”. The Judge believed that Mr Upton may well have made the very robust comments that he claimed to make, when interrupting the Judge’s sentencing remarks. By contrast the Judge in his brief of evidence suggested that Mr Upton was not as talkative as some defendants.

By the end of the trial Tompkins J had plainly reached a sharply different opinion about Mr Upton, an opinion which rightly influenced his overall conclusion:

It is my impression of the plaintiff, based on my observations of him in the witness box and the evidence of others, that he can fairly be described as voluble, truculent, somewhat aggressive, excitable and argumentative. He is quick to express in an impetuous out spoken way his disagreements with what another may assert. The evidence shows that he seems to have argued with everyone with whom he came into contact. He was dissatisfied with Judge Lance, fell out with two periodic detention wardens, considered the probation officer did not fairly report, that the duty solicitor did not properly brief him, argued with Mr Roper, a prison warden, told the Registrar of the High Court in Christchurch that he should watch his step and referred to making tape recordings of officials, and said that he was shocked and angry that

Holland J did not adjourn his appeal when he asked for that.

When regard is had to the sort of person the plaintiff is, it is, in my opinion, highly unlikely that if, when he appeared again in the afternoon and at the time when sentence was about to be passed, he had been asked whether there was anything he wanted to say, he would have remained silent.

An alternative scenario put forward by Mr Hancock that Mr Upton expected to receive only a final warning and so elected to say nothing on sentence when invited was not one which the Judge was obliged by the evidence to construct.

Tompkins J elaborates on his conclusion for instance by reference to what Mr Upton said to the prison authorities and in his notice of appeal. The District Court Judge also accepted that had Mr Upton made a submission - as noted, he did not mention one in his sentencing notes - he would have remembered it.

We consider that there was ample evidence, mainly but not solely from Mr Upton, on the basis of which the trial Judge could come to the conclusion he did. It is true that there was evidence to the contrary, but unlike the evidence about the guilty plea in the morning it was essentially of a general character, referring to the way in which the Judge customarily dealt with hearings such as this. There is no basis on which we would interfere with the finding of fact on this issue.

While we accept that there is force in the complaint the appellant makes about the pleadings, extensive evidence was in fact given about what happened at the second stage of the hearing. That evidence included that given by the District Court Judge and other defence witnesses. The plaintiff was also examined in detail about the sentencing stage. In the broad context of this case we do not consider that the defendants were, in Mr Hancock’s words, “irretrievably prejudiced” by the trial Judge “introducing a different factual basis for the second cause of action”. Had an amendment been sought it reasonably would have been allowed having regard to the scope of the evidence. To repeat, Mr Upton’s broad complaint is not to be divided as neatly between the two steps as the Attorney-General contends. His complaint is the

broad one, indicated by his second cause of action, that he had not had a fair hearing and his right to natural justice had been breached with serious consequences for him.

Those serious consequences go to the remaining issue - the appropriateness and extent of the compensation payable by the Crown for the breach of the right to a hearing affirmed by the Bill of Rights.

Tompkins J, in making “a broad assessment of an appropriate amount” and in settling on $15,000, reviewed the matters which were also reviewed before us by Mr Hancock for the Attorney-General, including an error in the information about previous convictions before the District Court, the possibility that Mr Upton might have persuaded the District Court Judge that he had misunderstood the sentence imposed by Judge Lance, the possible significance of the voluntary surrender and reporting in Christchurch, and the reasonable prospect of a lesser sentence as a result. Tompkins J also emphasised the importance of the principle of the right to a fair hearing. He quoted Lord Denning to the effect that the risk of prejudice is enough; likelihood need not been established, Kanda v Government of Malaya [1962] UKPC 2; [1962] AC 322,

337. We accept that Mr Upton’s breaches of the obligations arising from his sentence called for a penalty. But in the determination of that penalty, he had rights which were not accorded. The exercise of the rights might have made a difference. We can see no sufficient basis for upsetting the decision to award compensation or to reduce the amount although in our view it is a rather generous amount. There is certainly no reason to increase it.

Accordingly both the appeal and cross appeal are dismissed. If any question of costs arises, counsel may file memoranda.

Solicitors

Crown Law Office, Wellington for the Appellant Glover Sewell, Christchurch for the Respondent