Daniels v Thompson CA86/96 [1998] NZCA 3; [1998] 3 NZLR 22 (12 February 1998)

Last Updated: 21 April 2013

IN THE COURT OF APPEAL OF NEW ZEALAND CA 86/96

BETWEEN PAUL JAMES DANIELS Appellant

AND DEBORAH RITA THOMPSON

_Respondent

Order prohibiting publication

of names addresses or particulars identifying plaintiff

CA103/97

_{BETWEEN J}

Plaintiff

AND RAEWYN ANNE BELL Defendant

Order prohibiting publication

of names addresses or particulars identifying plaintiff or defendant

_{BETWEEN W}

CA104/97

_Plaintiff

_{AND W}

_Defendant

Order prohibiting publication

of names addresses or particulars identifying plaintiff or defendant

_{BETWEEN H}

CA164/97

_Appellant

_{AND P}

Respondent

Coram: Richardson P Gault J

Henry J Thomas J Keith J

Hearing: 1 and 2 September 1997

Counsel: C J Hodson and J F Mather for Appellant Daniels

P Revell for Respondent Thompson

B A Gibson for Plaintiff J

B Davidson for Defendant Bell

D B Collins and A Sleeman for Plaintiff W

G L Turkington and D G Marjoribanks for Defendant W W N Dawkins for Appellant H

I M Malosi for Respondent P

_{Judgment: 12 February 1998}

JUDGMENT OF RICHARDSON P, GAULT J, HENRY J and KEITH J DELIVERED BY HENRY J

Index Page

1. Summary 3

2. Outline of appeals 3

3. The purpose of awarding exemplary damages 6

4. The relevant statutory provisions 9

5. Section 26(2) Bill of Rights - a bar? 11

6. The victim and the criminal process 16

7. The case law 17

8. The principles 33

9. Limitation issue 45

10. Name suppression 47

11. Conclusions 48

1. Summary

In each of these four cases the plaintiff seeks an award of exemplary damages for acts which constituted serious criminal offending of a sexual nature. They raise important issues of principle, and require a balancing of the competing rights of a victim and an offender, to be considered in the context of the functions of the criminal law process. The judgment examines those issues in the light of the relevant statutory provisions and the case law, and concludes that in this particular limited field where the criminal law has intervened or is likely to intervene exemplary damages cannot be justified.

2. Outline of appeals

As noted these cases, which were heard together, raise important and significant issues concerning limitations on the availability of relief by way of an award for exemplary damages in claims based on tort. In each case the acts relied upon as establishing the cause of action constitute criminal offending and the allegations forming the basis of the claims are in substance the same as those which would be relevant to the disposal of criminal proceedings. This judgment is concerned with the implications flowing from that, and not directly with any wider issues in the field of exemplary damages. It was accepted that current New Zealand law recognises the availability of a claim for exemplary damages, at least for the commission of intentional torts, has not been taken away by the Accident Compensation legislation, and is not subject to the constraints laid down in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 (Donselaar v Donselaar [1982] 1 NZLR 97; Taylor v Beere [1982] 1 NZLR 81). The judgment accordingly proceeds on that basis.

CA86/96: Daniels v Thompson

The plaintiff alleges that he and the defendant lived in a de facto relationship between July 1988 and July 1991. Following termination of that he commenced

proceedings in the High Court in respect of property said to be held in trust for him, and for the return of assets which he claimed to own. By way of counterclaim, the defendant alleged that on 19 July 1991 the plaintiff abducted her and on three occasions raped her. She alleges false imprisonment and seeks general damages, damages for distress, and exemplary damages of $21,000. She also seeks exemplary damages in the sum of $50,000 for the three rapes. The plaintiff was consequently prosecuted on three counts of rape, one of abduction, one of injuring with intent, and one of breaking and entering with intent. He was convicted on all but one of the counts of rape, and sentenced to an effective term of 9 years imprisonment, having spent some 8 months in custody prior to sentence. The plaintiff’s application to strike out the counterclaim was dismissed by Master Kennedy-Grant, and on 14 February

1996 Tompkins J made an order removing a consequential application for review of the Master’s decision into this Court.

CA103/97: J v Bell

Through her guardian-ad-litem, the plaintiff, now 10 years of age, seeks unspecified compensatory damages and exemplary damages in the sum of $200,000 against the defendant, alleging sexual violation and indecent assault between February

1996 and May 1996. The defendant pleaded guilty to a representative charge of sexual violation of the plaintiff between February 1996 and May 1996. She was sentenced in the High Court to 2 years imprisonment, suspended for 12 months. She was also sentenced to periodic detention and to supervision. On 13 February 1997

Heron J made an order by consent removing the following question of law into this

Court:

....does section 26 of the New Zealand Bill of Rights Act 1990 prevent a claim for exemplary damages in the Court’s civil jurisdiction against a defendant who has been convicted and punished in respect of the same cause of action in the Court’s criminal jurisdiction?

CA104/97: W v W

The plaintiff’s statement of claim, issued on 6 October 1995, alleges that she was a patient of the defendant, a registered psychologist, and received counselling and treatment from him on a regular basis between July 1986 and June 1994. It is alleged she was sexually abused by the defendant on numerous occasions between February

1987 and May 1989. Three causes of action are pleaded, all based on the alleged acts of sexual abuse. They are trespass to the person, negligence, and breach of fiduciary duty. Exemplary damages in the sum of $250,000 is the only relief sought. On

15 July 1995, the defendant stood trial in the High Court at Wellington on nine counts, alleging sexual violation by rape, sexual violation by unlawful sexual connection and indecent assault of the plaintiff. The indictment charged offending between February

1988 and December 1989. The defendant was acquitted on all counts after an eight day trial. The plaintiff’s evidence at the criminal trial comprehensively covered the relevant details of her relationship with the defendant, and the alleged abuse. Following a strikeout application, Heron J made a consent order under s64(e) of the Judicature Act 1908 removing into this Court the following question of law:

Can the plaintiff sue her former psychologist, the defendant, for exemplary damages in respect of sexual abuse the subject of the claim, he having been acquitted in respect of identical allegations by jury trial in the High Court at Wellington on 22 July 1996?

CA164/97: H v P

On 23 December 1996 the respondent applied to the High Court under s4(7) of the Limitation Act 1950 for leave to commence proceedings against the appellant. The respondent was born on 3 November 1960, and is a daughter of the appellant. Her draft statement of claim alleges that between the ages of 8 years and 16 years the appellant sexually, physically and emotionally abused her, including raping her. The appellant had earlier pleaded guilty to two representative charges of rape and two representative charges of indecent assault of the respondent. The substance of the allegations of assault in the statement of claim, which are not denied, also formed the basis of the prosecution. The appellant was sentenced to an effective term of

6½ years imprisonment on 26 October 1993.

The causes of action pleaded are breach of fiduciary duty, and trespass to the person (assault and battery). Exemplary damages of $250,000 are sought. Morris J

granted leave to commence the proceeding. The appeal is against that decision, and raises the limitation point as well as the right to claim exemplary damages.

3. The purpose of awarding exemplary damages

The origin of exemplary damages (probably better described as punitive damages), is usually said to lie in two cases decided in 1763, Huckle v Money (1763)

[1799] EngR 225; 2 Wils KB 205 and Wilkes v Wood [1763] EngR 103; (1763) Lofft 1. In those cases substantial damages awarded by juries for improper interference by public officials with subjects were justified as “exemplary damages”. The purpose of the awards was said to be to punish and deter, and to express the jury’s outrage at the defendant’s conduct. A related purpose mentioned in subsequent cases was to appease the victim and to discourage revenge: for example Merest v Harvey [1814] EngR 330; (1814) 5 Taunt 442, where the judge more specifically referred to the undesirable practice of duelling. Punishment and deterrence are of course purposes which are served by the criminal law. The introduction of criminal law purposes into the law of torts did not represent a new development, but reflected the common historical roots of the laws of tort and crime. Both branches of the law being addressed in large parts to the same type of conduct, the modern separation of their different purposes and procedures was still being completed at that time.

The main reasons for the long-standing lack of separation between the laws of crime and tort may be seen originally in the failure of a more primitive system to rationalise the distinction, and at a later stage perhaps in the inability of relatively weak authorities to prosecute criminal offenders as fully as desirable. Also, the criminal law was part of the common law, and in the process of development and enlargement in scope. Against that background, awards of exemplary damages in the eighteenth century may appear as remnants of the old lack of distinction rather than as a new development in the law of remedies.

Although often described as anomalous and a windfall for plaintiffs because they are criminal rather than civil in nature, exemplary damages have remained as an available remedy. As an aspect of civil law, what is unusual about exemplary damages is that punishment is not merely incidental, but the primary purpose. They assume either independent full compensation, or, under the Accident Compensation regime, that there is on the part of the tortfeasor no liability to compensate.

That punishment is the keynote has long been established. Pratt LCJ in Wilkes v Wood said that damages were available “as a punishment for the guilty, to deter from

any such proceeding for the future, and as a proof of the detestation of the jury to the action itself”. In Rookes v Barnard Lord Devlin said juries may award a larger sum “if, but only if, the sum which they have in mind to award as compensation (which may, of course, be a sum aggravated by the way in which the defendant has behaved to the plaintiff) is inadequate to punish him for his outrageous conduct, to mark their disapproval of such conduct and to deter him from repeating it”. And in Taylor v Beere, Somers J at p95 said “This is more strictly to confine exemplary damages to their proper place, not as an expression of vindictiveness, but as a punishment and a deterrent, to show that tortious conduct does not pay”. In short, it is society’s disapproval which is being voiced, rather than a plaintiff’s desire to exact retribution being recognised.

It is sometimes said that exemplary damages are also to assuage the urge for revenge and to discourage the temptation to engage in self-help - reflecting part of the rationale expressed in the 18th century. The origin of those factors however lay predominantly in the need for tort law to supplement the otherwise inadequate criminal law. To the extent that those factors can be said to remain as relevant to the present day, where the criminal law has been invoked they will be met because when it is deserved there will be punishment. The infliction of private revenge is, or should be, no longer a demand to be heeded.

We would also reject any suggestion that because of the advent of the Accident Compensation legislation, there is now some element of compensation to be attached to exemplary damages. This suggestion was discussed by Tipping J in McLaren Transport Ltd v Somerville [1996] 3 NZLR 424, and by Heron J in O v U (1996) 14

CRNZ 76, both of whom rejected the proposition. We respectfully agree. The nature of exemplary damages has long been defined, and needs no reconsideration. The Accident Compensation legislation removed liability to compensate for causing personal injury, subject only to stated statutory provisions. The Courts should not circumvent that policy. Furthermore, it would be anomalous to extend the ambit or function of exemplary damages only to cases where compensatory damages were unavailable. And if some new concept was to be extended beyond those cases, then the whole issue of compensatory and aggravated damages would need to be addressed. In short, there is no justification for using the Accident Compensation legislation as a reason for reconsidering and altering the role of exemplary damages, whether in the field of tort in general or in that part of it concerning personal injury in particular.

It is relevant to note that most of the exemplary damages cases in New Zealand and in Australia have generally been in areas such as defamation, malicious prosecution, and wrongful arrest. The recent upsurge in such claims, (with presumably the wider range of torts in which they are claimed) is said to be attributable, at least in part, to the Accident Compensation scheme, and more recently the reduction in benefits payable under it (Todd, The Law of Torts in New Zealand,

2nd ed p1231). It is perhaps not surprising that many of the cases, including some at least of the present, have the appearance of seeking compensatory as well as exemplary relief. The true nature of exemplary damages however, and the basis upon which they can be recovered, has not altered. They are punitive in nature - punishment is the aim, and through the instrumentation of the Court they reflect society’s condemnation of the particular conduct. The close relationship to criminal punishment cannot be doubted.

4. Relevant Statutory Provisions

New Zealand Bill of Rights Act 1990

Section 26

Retroactive penalties and double jeopardy - (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

(2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

Crimes Act 1961

Section 10(4)

No one shall be liable, whether on conviction on indictment or on summary conviction, to be punished twice in respect of the same offence.

Section 358

Pleas of previous acquittal and conviction - (1) On the trial of an issue on a plea of previous acquittal or conviction to any count, if it appears that the matter on which the accused was formerly charged is the same in whole or in part as that on which it is proposed to give him in charge, and that he might on the former trial, if all proper amendments had been made that might then have been made, have been convicted of all the offences of which he may be convicted on any count to which that plea is pleaded, the Court shall give judgment that he be discharged from that count.

(2) If it appears that the accused might on the former trial have been convicted of any offence of which he might be convicted on the count to which that plea is pleaded, but that he may be convicted on that count of some offence of which he could not have been convicted on the former trial, the Court shall direct that he shall not be convicted on that count of any offence of which he might have been convicted on the former trial, but that he shall plead over as to any other offence charged.

Section 405

Civil remedy not suspended - No civil remedy for any act or omission shall be suspended by reason that such act or omission amounts to an offence.

Victims of Offences Act 1987

Section 8(1)

Appropriate administrative arrangements should be made to ensure that a sentencing Judge is informed about any physical or emotional harm, or any loss of or damage to property, suffered by the victim through or by means of the offence, and any other effects of the offence on the victim.

Criminal Justice Act 1985

Section 11

Reparation to be considered in all cases - The court shall consider imposing a sentence of reparation in every case, and, subject to section

22 of this Act, shall impose such a sentence unless it is satisfied that it would be clearly inappropriate to do so.

Section 22(1)

Court may sentence offender to make reparation - (1) Where any court by or before which a person is convicted of an offence, or any other court before which the offender appears for sentence, is satisfied that any other person suffered-

(a) Any emotional harm; or

(b) Any loss of or damage to property-

through or by means of the offence, the court may sentence the offender to make reparation.

Section 24(f)

The sentence shall not affect any right that the person who suffered the loss or damage has to recover by civil proceedings any damages in excess of the amount recovered under the sentence.

Section 28(1) & (4)

(1) Where an offender is convicted of an offence arising out of any act or omission that occasioned physical or emotional harm to any other person (whether or not the occasioning of such harm constitutes a necessary element of the offence at law) and the court before which the offender appears for sentence imposes a fine on the offender, the court shall consider whether or not it should award, and, subject to subsection (2) of this section, may if it thinks fit award, by way of compensation to the victim the whole or such portion of the fine as it thinks fit.

(4) An award of compensation under this section shall not affect the right of the person entitled to it-

(a) To receive compensation under the Accident

Compensation Act 1982; and

(b) To recover by civil proceedings damages in excess of the amount recovered under the award.

5. Section 26(2) New Zealand Bill of Rights Act 1990 - a bar?

We repeat section 26:

Retroactive penalties and double jeopardy - (1) No one shall be liable to conviction of any offence on account of any act or omission which did not constitute an offence by such person under the law of New Zealand at the time it occurred.

(2) No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.

It was submitted that on its true construction this provision operated as an absolute bar to a claim for exemplary damages where the defendant to civil proceedings had been proceeded against by way of criminal prosecution for the same basic acts. Although the terms “double jeopardy” and “double punishment” were at the core of the argument under this head, it is necessary to consider carefully the words of the subsection, and not simply attempt to apply some broad general principle. The purpose and spirit of the Act must of course still be given effect, and the words read in proper context. The issue has been considered in some earlier cases.

In P v P [1993] 3 DCR 843, Moran DCJ dismissed a claim for exemplary damages, based on sexual abuse of the plaintiff by his grandfather over a period of

7 years. The defendant had earlier faced charges of indecent assault on the plaintiff,

and having been convicted on some was sentenced to imprisonment. The jury failed to agree on three counts, which were ultimately stayed by the Solicitor-General. In the course of his judgment, the Judge referred to s26(2) as authority for the principle that a person is not to be punished twice for the same offence. He said at p848 “There is however a very strong objection in principle to a claim for exemplary damages being made against a defendant who has already been punished by the criminal law.” The claim in that respect was dismissed, as was the remaining part of the claim which related to the stayed offences. While the force of the observation quoted cannot be doubted, whether s26(2) of itself is a statutory bar to exemplary damages in such a situation is not so clear.

Counsel supporting the bar also relied on the dictum of Gault J in S v G [1995]

3 NZLR 681,692:

Double punishment by the award of exemplary damages after the imposition of a criminal sentence for the same conduct has implications beyond those involved in assessing an application for leave under s4(7) of the Limitation Act. To permit that would require reading down s26(2) of the Bill of Rights Act to confine the second punishment to that of a criminal nature. We are not persuaded that we should do that, particularly since the criminal Court is required to consider reparation in all cases. However for the purpose of the present case it is sufficient that the potential for there to be an element of double punishment be taken into account in the overall discretionary assessment of whether the respondent should have leave.

In O v U [1996] NZHC 444; (1996) 14 CRNZ 76, Heron J reviewed several of the relevant authorities, including S v G, s26(2) and other relevant statutory provisions before answering in the affirmative the question of law whether the plaintiff could sue the defendant for exemplary damages for sexual abuse when he had been sentenced to imprisonment for those actions.

In Caldwell v Croft Timber Ltd [1997] ERNZ 136 Paterson J held that a conviction under the Health and Safety Employment Act 1992 did not effectively prevent a subsequent claim for exemplary damages based on the same acts which gave rise to the prosecution. Section 26(2) did not apply.

The equivalent of s26(2) can be found in s11(h) of the Canadian Charter of

Rights and Freedoms. It states:

11. Any person charged with an offence has the right

...

(h) if finally acquitted of the offence, not to be tried for it again, if finally found guilty and punished for the offence, not to be tried or punished for it again;

In R v Wigglesworth (1988) 45 DLR (4th) 235 the Supreme Court held that the section should be construed narrowly. In that case a member of the Royal Canadian Mounted Police was charged with a major service offence for having assaulted a prisoner in his custody. He was fined by the service tribunal, and then charged with assault under the Criminal Code. The Court held that the two offences were two different matters, one being an internal disciplinary matter and the other a criminal offence. Section 11(h) was not infringed by the Criminal Code proceeding.

Earlier (prior to the Bill of Rights) in In Re a Medical Practitioner [1959] NZLR 784, this Court had taken a similar view to that adopted in R v Wigglesworth in holding that an acquittal on charges of indecency did not bar a disciplinary tribunal from determining a complaint of professional misconduct alleging the same indecent assault. The Court held that the plea of autrefois acquit was not available, and the doctrine of res judicata had no application.

We turn back to s26(2). Clearly s26(1) is referable and only referable to criminal proceedings. Logically, it would seem to follow subs (2) is to be read in the same way. Subsection (2) prohibits trial for an offence which has already been the subject of an acquittal or a conviction. The inclusion of a pardon is of no significance for present purposes - a pardon is a deemed acquittal (s409 Crimes Act 1961) and clearly relates to an offence against the criminal law. “Finally acquitted or convicted of an offence” must be referable only to a criminal proceeding relating to an offence against the law, for which the person has been tried. What is prohibited is a further trial for the same offence, that is a trial which also may result in an acquittal or a conviction. The provision is not concerned with a trial which may result in a form of civil liability. It has never been the law that a criminal prosecution will bar civil proceedings based on the same facts which gave rise to the prosecution. Personal injury claims, and claims under the Deaths By Accident Compensation Act 1952, particularly in the area of motor vehicle accidents, were formerly commonly litigated subsequent to prosecutions under both the Transport Act 1962, and the Crimes Act

1961 and their predecessors. It must follow that the further “trial” which comes within the scope of the provision is only a criminal proceeding.

The word “punished” in s26(2) cannot have a different connotation. It too is concerned with the criminal process, and prevents the punishment function of that process from being revisited. Trial and punishment must both be construed as speaking of the same subject matter.

This construction is in accord with the long standing common law principles of autrefois acquit or autrefois convict which undoubtedly gave rise to the enactment of s26.

The common law plea has never been seen to be applicable to civil proceedings. Subsection (2) gives effect to those special pleas, which are also covered specifically in ss 357 and 358 of the Crimes Act 1908. It is noteworthy that “offence” in the Crimes Act is defined as “any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction or indictment or on summary conviction:”. The word in Section 26(2) can properly be read in a similar way. Neither is the plea available in criminal proceedings simply because the second offence is based upon the same acts as the first. The commonality required is in respect of the offence. (R v Thomas [1950] 1 KB 26,31; Connelly v Director of Public Prosecutions [1964] AC 1254; R v Brightwell [1995] 2 NZLR

435). That distinction is of importance here. The commission of an offence is not an ingredient of the causes of action or of the entitlement to the relief claimed in the present cases. The acts of the particular defendant are relied upon - the fact that they also constituted criminal offending is incidental. In our view it would be erroneous to treat the word “punished” in s26(2) as embracing punishment outside the ambit of the criminal process and its associated enforcement of the public law.

The unavailability of s26(2) as a complete bar is demonstrated by the converse of the present cases. An award of exemplary damages for sexual abuse could not possibly constitute a bar to an individual prosecution and subsequent sentencing for the same conduct. Yet that is the necessary consequence if s26(2) prohibits both consequences.

Reference was made in the course of argument to s10(4) of the Crimes Act

1961, which provides:

No one shall be liable, whether on conviction on indictment or on summary conviction, to be punished twice in respect of the same offence.

It is to the same effect as s26(2), and clearly is referable only to penalties imposed as part of the criminal process.

For the above reasons, we conclude that s26(2) does not operate as an absolute bar to an award of exemplary damages where a criminal prosecution has proceeded to finality, whether or not a conviction and sentence results. As will be seen later, that does not mean that the concept of double punishment or double jeopardy has no place where private law is invoked to exact a punishment when the criminal process has already run its course, or should be allowed to do so.

This conclusion would seem to accord with the view reached by the United States Supreme Court in a recent decision, drawn to our attention by counsel after the hearing of these appeals. In Hudson v United States (No.96-976, 10 December

1997) the Court held that the double jeopardy clause of the Fifth Amendment protects only against the imposition of multiple criminal punishments. Thus monetary penalties imposed in civil proceedings for breach of banking statutes did not prevent a later criminal indictment for essentially the same conduct. The exemplary damages issue did not arise.

6. The victim and the criminal process

In recent years there has been a growing awareness of the need to be conscious of and to promote the interests of victims of crime. This has resulted in changes in practice and procedure, which have relevance if not significance to the role which should be played by exemplary damages in the area of criminal offending. The desirability of allowing a victim personal retribution must be lessened when, viewed objectively, weight is given in the sentencing process to the effect on victims.

The Victims of Offences Act 1987 is of relevance. Section 8(1) is repeated: Appropriate administrative arrangements should be made to ensure

that a sentencing Judge is informed about any physical or emotional

harm, or any loss of or damage to property, suffered by the victim through or by means of the offence, and any other effects of the offence on the victim.

Victim impact statements are required to be considered by the Court, and will be taken into account (R v Potatai (1988) 4 CRNZ 552). Other provisions of the Act, although not directly relevant for present purposes, involve victims in the process

generally in a positive way. Victim impact statements are generally in written form, and as the name implies contain details of the way or ways in which the victim has been affected by the offence. Immediate and long term effects are expected to be addressed, and a statement will frequently record the victim’s personal views of and reaction to the offending. Included may be feelings of outrage and anger towards the offender, and the desire to see that “just deserts” are received. This emphasises that the very aims of exemplary damages are likely to be weighed and taken into account in the sentencing process when a decision as to the appropriate penalty is being reached. It is of course accepted that these matters form only one part of the task of evaluating punishment for an offence, and many other factors which do not directly impinge on the victim’s position, such as rehabilitation and the personal circumstances of the offender, will also feature.

The Criminal Justice Act 1985 adopted principles of restorative justice. Under s11 a sentence of reparation is to be considered in all cases, and under s22 it can be ordered where a person has suffered emotional harm. Further, under s28 a Court also has the power to award a victim the whole or a portion of any fine imposed “by way of compensation”. In both situations the right of the person suffering loss to recover by civil proceedings any damages in excess of the reparation or the fine is not affected. In the case of a fine, which is not restricted to payment for emotional harm, the right to claim under the Accident Compensation provisions is similarly protected (ss 24(f),

28(4)).

Both provisions are available to a Court as part of the sentencing process, and if used will result in a payment to the victim. In respect of these there is no statutory constraint which prevents account being taken of any outrageous or contumelious conduct on the part of the offender. An order under either provision may well reflect the Court’s concern in that regard, and will constitute part of the punishment of the offender.

7. The case law

7.1 New Zealand

Some of the following authorities have already been discussed, but for ease of reference their content is repeated in the context of this section of the judgment.

The only pronouncement of this Court appears in S v G [1995] 3 NZLR 681. It concerned an application for leave to commence proceedings under s4(7) of the Limitation Act 1950, the intended claim for exemplary damages being based on sexual and physical abuse on the plaintiff and seeking exemplary damages. The defendant had been convicted of indecently assaulting the plaintiff, and fined. In an obiter statement the Court, having referred to s26(2) of the Bill of Rights and observing that it should not be read down, regarded the potential element of double punishment as a factor in taking into account whether leave should be granted. The case was concerned primarily with the question of when the cause of action accrued, and the application of the reasonable discoverability test. Leave was refused, reversing the High Court decision of Blanchard J who, in the course of his judgment after discussing Canadian authorities held that there could be good policy reasons for allowing the claim. The factors which led him to that view will fall for consideration.

In O v U [1996] NZHC 444; (1996) 14 CRNZ 76, Heron J reviewed Canadian case law, S v G (at both levels), and P v P [1993] DCR 843. He also referred to s26(2) of the Bill of Rights, s405 of the Crimes Act and s28(4) of the Criminal Justice Act. He concluded that the pre-trial question of law whether the plaintiff could sue the defendant for exemplary damages for sexual abuse when he had been sentenced to imprisonment for those actions could not be determined against the plaintiff as New Zealand law then stood.

In Caldwell v Croft Timber Ltd [1997] ERNZ 136 Paterson J held that a conviction under the Health and Safety Employment Act 1992 did not effectively prevent a subsequent claim for exemplary damages based on the same acts which gave rise to the prosecution. He took the view that there was nothing preventing the Court from making an award, basing his view primarily on the ground that s26(2) of the Bill of Rights was confined in its effect to criminal proceedings, drawing assistance from Canadian case law.

In Akavi v Taylor Preston Ltd [1995] NZAR 33, Master Thompson, in substance following S v G at first instance, refused a strike out application on a claim for exemplary damages based on a work related accident where the defendant had been convicted and fined for an offence under the Machinery Act 1950. In MacKenzie v Emm (1997) 10 PRNZ 501, the issue does not appear to have been argued before Master Venning when granting a limitation leave application. In G v G [1997] NZFLR 49, Cartwright J awarded $85,000 exemplary damages for assault and battery inflicted over a lengthy period, prior to and after the marriage of the parties. No

criminal proceedings had been brought. The Judge held that the plaintiff’s decision to institute civil proceedings and not to set in train a criminal process was a choice available to her, and did not militate against the claim. In A v M [1991] 3 NZLR 228, a claim for spousal rape where no criminal charge had been brought although a complaint to the police had been made, Chilwell J made an award. Similarly in H v R [1996] 1 NZLR 299, Hammond J made an award in respect of historical sexual abuse, where it was accepted that there was no realistic possibility of a prosecution. In neither case was the present issue discussed.

In P v P [1993] 3 DCR 843, Moran DCJ dismissed a claim for exemplary damages, based on sexual abuse of the plaintiff by his grandfather over a period of

7 years. The defendant had earlier faced charges of indecent assault on the plaintiff, and having been convicted on some was sentenced to imprisonment. The jury failed to agree on three counts, which were ultimately stayed by the Solicitor-General. In the course of his judgment, the Judge referred to s26(2) as authority for the principle that a person is not to be punished twice for the same offence. He said at p848 “There is however a very strong objection in principle to a claim for exemplary damages being made against a defendant who has already been punished by the criminal law.” The claim in that respect was dismissed, as was the remaining part of the claim which related to the stayed offences.

Earlier, in Carrington v Attorney-General [1972] NZLR 1106, which is reported on a motion for new trial following a jury verdict, it appears to have been accepted without argument that a claim for exemplary damages for assault by a police officer was available although the officer had earlier been sentenced for the same assault. As it transpired, the jury declined to award exemplary damages. Finally it can be noted that in Donselaar Cooke J observed that evidence that the civil claim had been dismissed in the Magistrates’ Court was of no relevance to the question of law which the Court had to decide. The issue which is now highlighted was not the subject of argument.

7.2 Canada

Exemplary damages (usually under the name of punitive damages) are generally available in tort cases in Canada; the restrictions introduced in Rookes v Barnard do not apply: Vorvis v Insurance Corp of British Columbia (1989) 58 DLR (4th) 193 at

206; [1989] 1 SCR 1085] [1989] 4 WWR 218 (SC). Exemplary damages are awarded

for conduct which is “deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature” (ibid, at 208).

The effect of a prior criminal conviction and sentence on an award of exemplary damages appears to be uncertain. While the protection of the Canadian Charter of Rights and Freedoms against double jeopardy is not available as it applies only to criminal proceedings (R v Wigglesworth (1987) 45 DLR (4th) 235 (SC)), it was accepted until recently that a criminal conviction would operate as a bar to exemplary damages. However, cases since 1990 have departed from this position in favour of an approach which treats a criminal conviction as merely one of the factors to be considered in awarding exemplary damages. Even less certain is the effect of a discharge in criminal proceedings. On the other hand, the mere availability of criminal charges has not been considered an obstacle to an exemplary damages award.

The leading authority for the old rule is Natonson v Lexier [1939] 3 WWR

289 (Sask KB). The plaintiff had been beaten by the defendant after denying adultery with the defendant’s wife. The judge commented (at 291)

The defendant was sentenced to a period of imprisonment and having thus received punishment the imposition of punitive damages for the benefit of the plaintiff would be a double punishment, even if in the peculiar circumstances damages ought to be awarded for the benefit of the plaintiff.

The rule was treated as established and beyond question in Canada until at least the 1980s, and was confirmed as recently as 1992 by the Supreme Court in Norberg v Wynrib (1992) 92 DLR (4th) 449 at 472, [1992] 2 SCR 226, [1992] 4 WWR 577, albeit only in a brief obiter statement.

It can be noted that in some cases exemplary damages were awarded despite a prior criminal conviction and sanction on the basis that the criminal proceedings did not cover the entire extent of the offending, usually in terms of the period of time covered: G (JD) v Wutke (June 26, 1996) Doc Prince George 32124 (BCSC); V (KL) v R (DG) (1993), 13 CPC (3d) 226 (BCSC); B (A) v J (I) (1991), 81 Alta LR (2d) 84, [1991] 5 WWR 748, 119 AR 210 (QB). This is consistent with the old rule.

Recent examples of the old rule in operation include Rioux v Smith (1983), 48

BCLR 126 (BC CA) (drink driving causing injury); Papadatos v Sutherland (1987),

40 DLR (4th) 755 (Quebec CA) (vicious attack); N (JL) v L (AM) [1989] 1 WWR

438 (Man QB) (child sexual abuse).

In Papadatos, Rothman JA said (at 759):

The judge who sentenced appellant to 10 years in prison following his trial on the criminal charges obviously considered this an adequate punishment for his criminal behaviour. An additional punishment of

$7,000 in exemplary damages in civil proceedings would, I think, involve punishing him a second time for the same acts.

Some lower courts advocated a new approach to prior criminal penalties as early as 1985. In Pollard v Gibson (1986), 1 YR 167 (Yukon SC) the court refused to find that a criminal conviction precludes an award of exemplary damages; the question whether such damages are appropriate had to be decided on the facts of each case. Similarly, in Wittig v Wittig (1986), 53 Sask R 138 (Sask QB) the issue whether exemplary damages were available after a criminal conviction and punishment was considered to be not free from doubt and properly left to the trial judge. In Canada v Lukasik (1985) 18 DLR (4th) 245 (Alta QB) an award of exemplary damages for malicious prosecution was substantially reduced rather than refused on account of the criminal punishment already received by the defendant.

There followed a series of cases at Court of Appeal level which pronounced in favour of the new approach without actually allowing exemplary damages on the particular facts. First was an obiter statement without any discussion in Huff v Price (1990), 76 DLR (4th) 138; 51 BCLR (2d) 282 (BC CA), a case of misappropriation of funds by an accountant. Having explained that exemplary damages should only be considered after compensatory damages have been fixed, and only if additional punishment is deemed necessary, the court added (at 155) “of course, if a criminal penalty has been imposed then that should be taken into consideration.” Before fixing exemplary damages, the court noted that it was not aware of any criminal proceedings against the defendant in this case (at 156).

In Glendale v Drozdzik (1993) 77 BCLR (2d) 106, 101 DLR (4th) 101 (BC CA), described as a case of “date rape”, there had been prior criminal punishment. Lambert JA speaking for the court said (at 115 in BCLR)

In my opinion, the rule would be too absolute if it were that punitive damages cannot be awarded if there has been a criminal penalty. Sometimes the criminal penalty might be as little as a conditional discharge as it was in one of the cases to which we were referred. That may still leave open the question in a civil case of whether an addition

should be made to the damages under the heading of “punitive damages”. However, in this case I am satisfied, having regard to the nature of the criminal penalty, that no addition should be made to the damages with respect to punitive damages.

Herbert v Misuga (1994), 111 DLR (4th) 193, [1994] 3 WWR 457 (Sask CA) mainly concerned new evidence available at the civil trial, but it also appears to have been argued that the trial judge wrongly treated the defendant’s prior conviction as a bar to exemplary damages. The court commented that such an approach would have amounted to an abdication of the trial judge’s discretion, but it was satisfied that this approach had not in fact been taken.

Lower court cases supplied further arguments in favour of the new approach. In Surgeoner v Surgeoner 2 December 1993, Doc. ND 181185/91 Q (Ont. Gen. Div.), the judge considered that the bar on exemplary damages ought not to apply in cases of domestic violence because a strong deterrent was needed in that area. The comment in Huff v Price that prior criminal punishment was merely a factor to be considered together with the punitive effect of compensatory damages in determining whether further punishment was called for was expanded on in Willington v Marshall (1994), 21 CCLT (2d) 198 (BC SC). The court stated that this determination was a question of fact, not law. The objection that in making that determination the trier of fact in the civil action was second-guessing the sentencing judge was disposed of by asserting that the objective of criminal sentencing was deterrence rather than punishment.

Following the acceptance of the new approach at Court of Appeal level, there are now several cases in the lower courts where exemplary damages have been awarded despite prior criminal punishment. In Willington the new approach was the basis for declining to strike out an exemplary damages claim for assault. In Joanisse v Y (D) (1995), 15 BCLR (3d) 224 (BC SC) exemplary damages were actually awarded for a vicious assault for which the two young offenders had already received sentences of community service and imprisonment respectively. In Surgeoner, exemplary damages were awarded for a domestic assault despite prior criminal punishment.

In some other cases exemplary damages were awarded without any reference to prior criminal punishment and the double punishment issue: for example Cyr v Williams (1995) 14 BCLR (3d) 289 (BC SC) where the defendant had been convicted of manslaughter; Queen (Litigation Guardian of) v Hodgins (1991) 36 RFL (3d) 159

(Ont Gen Div) where the defendant had reportedly pleaded guilty to charges of child sexual abuse.

The new approach appears not to have won universal acceptance. The double punishment argument was applied in Erickson v Lewellin (1996), 143 Sask R 317 (Sask QB), a case of domestic violence. That exemplary damages would have amounted to double punishment was conceded in DC v KC (1993) 108 Nfld & PEIR

314 and in DS v TK (1994) 123 Nfld & PEIR 194 (both Nfld SC). Obiter criticism of the new approach as involving second guessing of criminal sentencing judges and as usurping matters best left for the criminal field may be found in McDonald v Mombourquette (1995), 145 NSR (2d) 360, 418 APR 360, 28 CCLT (2d) 157 (NS SC).

The effect of a discharge in criminal proceedings has been discussed largely in the same terms of double punishment, but the issue appears unsettled. In Loedel v Eckert (1977) CCLT 145 (BC SC) a conditional discharge was held not to amount to either punishment or conviction for the purposes of mitigation of exemplary damages. Similarly, in Banks v Campbell (1973) 45 DLR (3d) 603, 14 NSR (2d) 73 (NS SC) the court doubted whether a discharge in criminal proceedings could be construed as punishment of the defendant which would make an award of exemplary damages a double punishment.

By contrast, in Moore v Slater (1979), 101 DLR (3d) 176 (BC SC) the court treated an absolute discharge granted to the defendant on an assault charge as punishment “in a sense” which should be taken into account in considering exemplary damages, and accordingly refused such damages in that case. Similarly, in Saviskoff v Morton (February 17, 1997), Doc. Nelson 4514 (BC SC) an award of exemplary damages was refused mainly because the conduct complained of did not warrant it, but the court also noted that the defendant had already received a conditional discharge, which, while not a conviction, amounted to some form of criminal sanction.

The mere fact that unpursued criminal charges are also available in respect of conduct complained of in civil proceedings has not been considered an obstacle to an award of exemplary damages. In Allard v Delorme (1987) 47 Man R (2d) 119 (Man QB) there was evidence indicating that criminal proceedings had been brought, but no evidence as to their outcome. The court awarded exemplary damages for assault. In Myers v Haroldson (1989) 48 CCLT 93, [1989] 3 WWR 604, 76 Sask R

27 (Sask QB), a case of a rape and threat to kill, the court awarded exemplary

damages noting that “while a criminal conviction may preclude such an award, here the defendant was not punished in the criminal courts”. In V (JL) v H (P) (February 24,

1997) Doc. Vancouver F940728 (BC SC) where the defendant had sexually abused his daughter, and in Sturrock v Ancona Petroleums Ltd (1990) 75 Alta LR (2d) 216, 111

AR 86 (Alta QB), a case of fraud, the fact that the defendant had not been criminally punished for his conduct was one of the factors in favour of awarding exemplary damages.

7.3 United Kingdom

There is little authority on the point in the United Kingdom since following Rookes v Barnard the availability of exemplary damages generally is very restricted. Aside from special statutory authorisation, such damages are available only for oppressive, arbitrary or unconstitutional action by state servants and for conduct calculated to make a profit which might exceed compensation payable to the plaintiff.

The restrictions imposed in Rookes may perhaps be seen as implicitly excluding civil punishment of criminal conduct; Lord Devlin’s speech includes a comment to that effect. At p1230 after stating that aggravated damages can do most of the work of exemplary damages, he continued:

In so far as they do not, assaults and malicious injuries to property can generally be punished as crimes, whereas the objectionable conduct in the categories in which I have accepted the need for exemplary damages are not, generally speaking, within the criminal law and could not, even if the criminal law was to be amplified, conveniently be defined as crimes. I do not care for the idea that in matters criminal an aggrieved party should be given an option to inflict for his own benefit punishment by a method which denies to the offender the protection of the criminal law.

The issue arose for decision in Archer v Brown [1985] 1 QB 401; [1984] 2 All ER 267. The plaintiff sought exemplary damages for the defendant’s deceit in selling him company shares which he did not have to sell. The defendant had been convicted and imprisoned for his fraud. Peter Pain J discussed whether exemplary damages are available for deceit, but found it unnecessary to decide the point. Exemplary damages were held not to be available because they would amount to double punishment. The judge thought it not surprising that there was no authority on the question since exemplary damages for deceit had not been fully considered, but rested his decision on the basic principle that a man should not be punished twice for the same offence.

Similarly, in an earlier unreported decision the Court of Appeal overturned an award of exemplary damages for a landlord’s high-handed interference with tenants’ rights because the landlord had already been fined for his conduct. The court preferred to increase the awards of aggravated damages: Devonshire and Smith v Jenkins, unreported 1979, Legal Action Bulletin May 1979 at 114.

On the other hand, exemplary damages have been awarded against landlords for wrongful evictions in several English cases notwithstanding the availability of criminal charges for the same conduct: e.g. Drane v Evangelou [1978] 2 All ER 437. In Ashgar v Ahmed (1984) 17 HLR 25, the Court of Appeal even upheld an award of

£1,000 in exemplary damages against a landlord who had already been fined £750 for wrongful eviction. However, the double punishment objection was countered in that case by relying on the fact that there had been outrageous conduct addition to the eviction as such. The landlord had thrown all of the tenant’s belongings out of the house and had refused to readmit the tenant pursuant to an injunction requiring him to do so.

Further comment may be found in AB v South West Water Services Ltd [1993] 1 All ER 609. The plaintiffs were claiming exemplary damages against the water company for the high-handed and arrogant manner in which it dealt with an incident of pollution which caused the plaintiffs to suffer illness. The Court of Appeal struck out the claim because it had not been brought within either of the two categories in which such damages are available following Rookes, and because exemplary damages were not available for public nuisance. However, Stuart-Smith LJ (at p624) further considered the fact that the defendants had already been convicted and punished for their actions as an “additional complication”. This contributed to a “serious risk of injustice” to the defendants, while on the other hand a refusal could cause no injustice to the plaintiffs who would merely be foregoing a windfall.

Similarly, Sir Thomas Bingham MR (at 627) noted the fact that public nuisance amounts to a crime (for which the defendants had been prosecuted) as part of his reasons for excluding exemplary damages for this tort. He thought Lord Devlin in Rookes “would plainly have regarded the award of exemplary damages as even more anomalous in cases where the conduct in question already attracted the sanctions of the criminal law”.

7.4 Australia

In Australia, as in New Zealand, exemplary damages are generally available, the restrictions in Rookes v Barnard having been rejected: Uren v Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, confirmed by the Privy Council in Australian Consolidated Press v Uren [1969] 1 AC 590. However, the question of the effect of the criminal process on the availability of such damages appears less than settled.

In Watts v Leitch [1973] Tas SR 16, a case of assault, the Supreme Court of Tasmania considered the appropriate direction in law for exemplary damages. While noting there was no specific authority on the point, it held that a criminal conviction and fine must be taken into account when considering exemplary damages. On the facts of that case, no exemplary damages were awarded, among other reasons because the defendant had already been punished. “To punish him again would be to punish him twice for the one act. We should assume that the punishment was appropriate having regard to the facts before the court.”

In O’Reilly v Hausler (1987) 6 MVR 344, a case of a reckless shooting, the Supreme Court of Queensland citing Brown v Archer held that it would not generally be appropriate to award exemplary damages where there has already been punishment under the criminal law.

In Lamb v Cotogno [1987] HCA 47; (1987) 164 CLR 1, the High Court upheld an award of exemplary damages for an assault without mentioning that the defendant had apparently pleaded guilty to serious criminal charges arising out of the same conduct. The main issues considered by the court were the effect of compulsory third party insurance carried by the defendant and whether there was a requirement of malice. The criminal proceedings and the double punishment issue were referred to only in the Court of Appeal in the dissent of Kirby J, who noted that this aspect of the case would not have stopped him from awarding exemplary damages (Cotogno v Lamb (No 3) (1986) 5 NSWLR 559 at 573). The High Court identified deterrence of others and victim appeasement as among the main purposes of exemplary damages.

7.5 United States of America

The following is necessarily only a selection of the extensive case law on this topic drawn to demonstrate the apparent diversity and possible trend of authority.

The main argument presented in favour of barring exemplary damages where a criminal penalty has been or may be imposed is that their imposition would amount to double punishment. While the constitutional prohibition of double jeopardy applies only to criminal proceedings (Hansen v Johns-Manville Products Corp, 734 F 2d

1036 (1984); Eddy v McGinnis, 523 N E 2d 737 (Ind 1988)), it is said to illustrate a principle of wider application. Allowing punishment in civil proceedings for acts which are subject to criminal sanction would be “contrary to the spirit of our institutions”: Taber v Hutson, 5 Ind 322; (1854), applied in Cole v Bertsch Vending Co, Inc, 766 F

2d 327 (1985).

It has also been argued that where the criminal law applies, that alone is the proper arena for the imposition of punishment; payment of a penalty to a civil plaintiff in such a case in particular would amount to an unjustifiable windfall: Fay v Parker,

53 NH 342 (1872).

Apart from Indiana and New Hampshire, the bar on exemplary damages is also applied by the courts in Colorado and West Virginia. However, in Indiana several exceptions to the bar have become recognised. It does not apply where the defendant has acted with heedless disregard of the consequences of his or her conduct (Nicholson’s Mobile Home Sales, Inc v Schramm 330 NE 2d 785 (1975), 77 ALR

3d 1257 (1975)) or where the time has run out for a criminal prosecution: Nicholson’s, Cohen v Peoples, 220 NE 2d 665 (1966). Moreover, a statute now provides that the possibility of criminal punishment is no defence to a claim for exemplary damages for the same conduct, effectively overturning the state’s case law on the point.

However the majority of states which allow exemplary damages at all, allow them regardless of whether criminal proceedings are also applicable to the same act. The main argument in support of this position counters the double punishment objection by asserting that exemplary damages and criminal sanctions are entirely separate. Neither one can act as a substitute for the other; rather they supplement each other by addressing separate concerns. Exemplary damages, while punitive rather than compensatory in purpose, redress the private wrong, not the accompanying wrong to the public which gives rise to the criminal sanction: Coppinger Color Lab, Inc v Nixon, 698 SW 2d 72 (Tenn 1985); Nappe v Anschelewitz, Barr, Ansell & Bonello,

477 A 2d 1224 (NJ 1984); Morris v McNab, 135 A 2d 657 (1957); Elliot v Van

Buren, 33 Mich 49 (1875); Brown v Swineford, 44 Wis 282 (1878); Hendrickson v

Kingsbury, 21 Iowa 379 (1866). The reasoning in these cases suggests that allowing the victim to exact retribution is seen as a primary purpose of exemplary damages.

Apart from the fact that criminal proceedings result in sanctions imposed on behalf of the people while exemplary damages represent a personal monetary recovery over and above compensation loss, significant distinctions have also been identified in the different onus and standard of proof applicable in the two types of proceedings, and in the fact that exemplary damages are not accompanied by the same stigma as criminal sanctions: Wittman v Gilson, 520 NE 2d 514 (NY 1988).

The arguments against a bar include the unfairness of denying to victims of criminal wrongs recovery of a penalty available to victims of non-criminal wrongs, and the need for adjustment where the criminal penalty does not adequately recognise the seriousness of the misconduct.

Several courts which oppose a bar on exemplary damages do allow criminal penalties to be considered as a factor in mitigation of exemplary damages awards, although this approach is not uniform. Where an absolute bar has been rejected on the basis that the two proceedings are entirely separate, the same argument has precluded the one penalty from reducing the amount of the other (Jefferson v Adams 4 Del 321 (1845)).

It has also been said that if an adjustment is to be made, it should be made in imposing the criminal, not the civil penalty, presumably because the benefit of the penalty is more significant for the individual victim than for the state: Keller v Taylor 7

Del 20 (1858); Cook v Ellis 6 Hill 466 (1844).

However, in many cases, evidence of criminal penalties received for the same conduct has been allowed in mitigation of exemplary damages: Saunders v Gilbert 156

NC 463, 72 SE 610 (1911); Wirsing v Smith 70 A 906 (1908) are two of the leading cases. Mitigation is available only where a criminal penalty has actually been imposed.

It has also been said that the criminal penalty available and imposed will provide an adequate deterrent and punishment only in some cases, depending on the particular circumstances - hence the most sensible solution is to allow an adjustment by factoring that penalty into the assessment of exemplary damages: Puz v McDonald

680 P 2d 213 (Ariz.App 1984); Tuttle v Raymond 494 A 2d 1353 (Me 1985).

In summary, most United States jurisdictions appear to allow exemplary damages regardless of whether the defendant may be criminally prosecuted for the same conduct. A number allow a criminal penalty to be taken into account in mitigation of any exemplary damages award. The following statement would appear to reflect the position:

There is a conflict of authority as to whether punitive damages are recoverable for an injury received in consequence of an act which is punishable as a crime, but as a general rule, the fact that the act is punishable criminally does not of itself authorise or prevent the recovery of such damages.

(Corpus Juris Secundum, Vol 25 Title Damages, 122)

7.6 Law Reform Agencies

Reference can be made to two law reform commission reports. The final report of the Ontario Law Reform Commission was published in 1991. It does not appear to have progressed to legislation. By way of background, it may be relevant to note that the Commission sees the purpose of exemplary damages primarily as punishment in the retributive sense rather than deterrence (pp31-2). Regarding the relevance of criminal proceedings, the report essentially endorses the approach taken by the Canadian Courts (pp43-6). It concludes that prior criminal proceedings or the prospect of criminal proceedings should not operate as a bar, but the fact and adequacy of any prior criminal penalty should be considered as a relevant factor in determining the size of the award if any. It is thought unlikely that a civil court will find additional punishment appropriate where the defendant has been imprisoned.

A number of arguments are considered by the Commission in arriving at its conclusion against a bar following conviction. The Commission notes that the constitutional double jeopardy argument in favour of a bar has not yet been tested in the courts; it sees exemplary damages as fulfilling a useful role, first, as supplementing the criminal law, and ensuring that offenders receive their “just deserts”.

The Commission was also persuaded by the disenfranchisement argument. The symbolic benefits of preserving a victim’s right to private action and of the occasional success are considered significant.

The cases where there has been an acquittal or no prosecution are treated as not raising difficult issues. The case of an acquittal lacks the double punishment

dimension, and the difference between the tort and criminal actions is sufficient to allow both actions in that situation. Where criminal proceedings are still a possibility, one can trust the criminal court to take account of the prior exemplary damages in sentencing. No concerns arise at all where criminal proceedings are no longer available.

The Law Commission (England and Wales) published a consultation paper (No.132) in 1993 under the title “Aggravated, Exemplary, and Restitutionary Damages”. Since the hearing of the present cases its final report has been published (Law Com No 247, 15 December 1997). The Commission regards the remedy of what it considers should be termed punitive rather than exemplary damages must be a last resort remedy. One of the implications of this is the effect of a criminal conviction concerning the conduct in question. It is that section of the report which is now relevant. The Commission observed as a general principle that it would be unacceptable if a defendant could be punished twice over for the same conduct - once by the criminal law and once by the civil law through an award of punitive damages (para 5.103). It concluded that punitive damages must not usually be awarded if, before the decision falls to be made, the defendant has been convicted of an offence involving the conduct for which the punitive damages are claimed (para 5.110). This, it is said, should apply also to cases where there has been an absolute discharge following conviction (para 5.107). The Commission went on to conclude that there should not be a complete and automatic bar, but rather a discretion, in the circumstances where a conviction has resulted. The discretion to make an award would arise only “exceptionally”. It must be said that the reasons for retaining a residual discretion - which is articulated as being the possibility of “hard” cases arising, is not compelling. Surprisingly, the report does not address the associated issue concerning cases where there has been a prosecution but a resulting acquittal. There is however recognition that a stay of civil proceedings may be appropriate where a criminal determination has not been made before civil proceedings are commenced (paras 5.114,115). The report is also useful for its conclusion that punitive damages may only be awarded if other remedies available to the Court will be inadequate to punish the defendant for his conduct, treating deterrence as an object of punishment. This reinforces the true nature and purpose of an award.

7.7 Summary

No clear common line of authority is discernible. There is a divergence of approach, as to both result and rationale, and the cases serve mainly to identify the factors which support the particular view which is being taken.

8. The principles

Bearing in mind that we are concerned with claims which have as their basis acts which constitute criminal offences, it seems necessary to consider three different situations, because the same factors may not apply in the same way to all three. First, where a prosecution has already been instituted and a conviction entered; second, where a prosecution has been instituted and an acquittal has resulted; and third, where a prosecution has been commenced but not concluded, or not commenced at all at the time the civil proceedings fall for consideration. We have earlier discussed the increased legislative concern to involve the victim, and the interests of the victim, in the criminal process. The significance of this to present issues is that it can now be said that this concern is a matter of public policy, which should be given due recognition when considering what role, if any, exemplary damages can now play in this particular area. At the outset it is essential not to allow a consideration of the principles to be diverted from what is a narrow issue. That issue is whether conduct which has or could come under the purview of the criminal law should also be punishable by an award of exemplary damages. We are not concerned with its relevance to such matters as defamation or malicious prosecution. Care must therefore be taken in extracting dicta from such cases as being of direct application. When regard is had to the circumstances under which for present purposes an award may be justified, the conduct in question is likely to constitute criminality of a serious kind. The present cases must be seen as typical. There is a danger of confused thinking if the confines of the enquiry are not kept at the forefront of any consideration. Whether the particular wrong, which will almost always involve physical abuse of the victim, is to be labelled as assault and battery, trespass to the person, breach of fiduciary duty or as coming under some other head, cannot affect the outcome.

8.1 Conviction

It will be seen from the preceding analysis of the case law that there is a divergence of approach to the problem, which can perhaps best be approached by listing what appear to be the principal policy factors for and against permitting a claim, as disclosed by the cases or as propounded in the course of submissions. There are of

course subsidiary factors. We refer first to the three factors which would appear to support the availability of an award. First, the right to bring and to control a civil action. This, it is argued, should not be taken away because the State has intervened through the criminal process - the individual should be free to seek a remedy for a civil wrong. This is sometimes referred to as the disenfranchisement argument. Supporting this is the theory of therapeutic jurisprudence, which recognises that obtaining a personal remedy lessens the impact on the victim.

Second, the respective enquiries (assessing the appropriate sentence and assessing damages) are not identical, either in their aims or their areas of consideration. Traditionally the nature and conduct of a criminal trial differs from a civil action. Third, an inadequate criminal sanction, and an inadequate recognition of the effect on the victim, can be redressed. The need for financial assistance to a victim for rehabilitation purposes was also raised, but that objective is outside the recognised ambit of the award and should be disregarded. Other factors, such as the desirability of encouraging the victim to complain to the police rather than discouraging them from doing so, and the possible anomaly of the right to sue being dependent upon whether the criminal or the civil process is first instituted, fall for consideration only if those results follow from treating conviction as a bar. As will be seen, a bar arising from conviction need not have those consequences.

The principal competing arguments can also be summarised. First, the avoidance of double punishment. Second, the desirability of retaining the protection of the criminal law for the imposition of a criminal type penalty. Third, the problems associated with enquiry into and taking into account a Court imposed penalty.

As has already been seen the underlying justification for allowing exemplary damages is to effect punishment for and deter repetition of outrageous conduct. It is not to compensate the victim for the injuries and losses suffered, but to mark society’s condemnation of the way in which the act was carried out. It must follow that if society, through the law and its criminal process, has already exacted a penalty which reflects those same matters, then the justification largely if not entirely disappears. It is not a question of denying a victim an established right of redress, or of balancing the rights of the victim with those of the offender. It is a question whether by reason of the conviction and its necessary consequences there is any basis left which can properly found an award of exemplary damages - that is the true enquiry. In the same way, if the victim of a tort has been compensated in accordance with legal principles for any losses resulting from the commission of the tort, there is no room for a further claim to

recover the loss. So too here, if the need to punish and deter outrageous conduct has been met, there is no discernible room for a further claim to achieve that end. In this respect it is important to remember that the remedy for tortious conduct also includes the concept of aggravated damages, which is distinct from that of exemplary damages, and highlights the narrow ambit of the latter.

Once it is accepted that the basic reason for awarding exemplary damages is to punish the acts complained of, then it must follow that if there has already been a conviction and sentence for those same acts, punishment for them has already been exacted. Similarly if deterrence is required, the sentence imposed will reflect that element.

It is important to keep firmly in mind not only the true function of exemplary damages, but also their close relationship to the criminal law. Sentence is imposed by the Court; exemplary damages are awarded by the Court. When both powers are exercised in respect of the same acts or omissions, the concept of double punishment becomes evident. The arguments which counter the double punishment principle do not reject the concept of the principle, but rather attempt to deny its applicability in these circumstances. Once it is accepted that exemplary damages are punitive, it is difficult to contend that the civil remedy is so different from that of a criminal sentence that any duplication is avoided. Exemplary damages may constitute punishment of a lesser order, and may be less severe in their effect, but their essential nature remains. The contention that there is no double punishment because the purpose of criminal sentencing is deterrence and not punishment (Willington v Marshall (1994) 21 CCLT (2d) 198) is not tenable for New Zealand, and needs no further consideration. The argument that different wrongs are included does not stand analysis. The wrong committed against the individual victim is, in the context of the present cases, in substance the same wrong which has also been committed by the same offender against society. Society takes affront because of the harm caused to the victim, including the manner in which it was inflicted.

It is accepted that the respective considerations which govern punishment for crime on the one hand, and assessing exemplary damages on the other are not identical. Rehabilitation, a plea of guilty, previous good character are all factors relevant to sentence, but of less significance (if any) to a damages claim. That however does not alter the fact that the sentence will necessarily have taken into account the punitive and the deterrence elements. To allow a second independent assessment of those same elements must result in the imposition by the Court of two

separate and distinct penalties for the same conduct. The Court must strive to avoid that consequence. As we have seen, the growing emphasis in the criminal law on the rights of victims is also of significance to the present issues. A Victim Impact Report is now required, which informs the sentencing court of the harm suffered by the victim and is to be given proper weight when sentence is imposed. Reparation must be considered, and can be ordered if emotional harm has resulted. A fine or portion of a fine can be ordered to be paid to a victim. All these provisions demonstrate that the sentencing process is designed to ensure that the aims of punishment and deterrence are met.

The line of authority which allows the claim but requires the criminal punishment to be taken into account was promoted in the present cases. Indeed it would be difficult to support the availability of a claim without making such a concession. Associated with this approach is the further argument that tort law supplements the criminal law, because the latter may result in a criminal receiving less than his or her just deserts. The problem which immediately arises in respect of both aspects is that it becomes necessary to embark on an enquiry as to the reasons for and the adequacy of a punishment which has been finally determined, and which is safeguarded by full rights of appeal. If that exercise is not undertaken, the civil court cannot determine “just deserts”, nor can it take into account the previously imposed sentence. It is difficult to see how any principled basis can be laid down for either exercise. The concept of revisiting a sentence is contrary to principle, and must undermine the criminal process. The objection to this approach is based not on the premise that the civil court usurps the function of the criminal court (which could be said to be a premise which negates the whole concept of exemplary damages), but on the unacceptable feature of one court adding to the punishment already imposed by another.

It can also be observed that recognition of the need to take any criminal penalty into account itself demonstrates the inappropriateness of applying the established principles governing an award of exemplary damages. Inherent also in this approach, and expressed by many of its proponents, is a recognition that in some cases there may well be no room for additional punishment by way of exemplary damages, despite the fact that the conduct qualifies for an award. That in itself contradicts many of the arguments used to support the right of the victim to such a punitive award. A further problem arises if a civil action precedes a criminal conviction, with a need somehow to adjust the proper sentence, likely to be imprisonment, to allow for the award. These

matters highlight the point that punishment for criminal offending should lie with the criminal process.

The function of exemplary damages also distinguishes the claim from other instances where the double jeopardy or double punishment principle has been held not to apply because the second intervention was not criminal in nature. The powers of disciplinary bodies are prime examples - see In re a Medical Practitioner. Breach of a code of conduct can properly bring consequences additional to those imposed by the criminal court. It has long been held that the striking off of a solicitor convicted of a criminal offence was not an additional punishment for the offence (In re Weare [1893]

2 QB 439). Such cases as these do not involve the imposition through the Court process of a second punishment. These are examples of a different principle, that where a particular status is granted a person particular oligations are imposed appropriate to that status, which if breached bring their own consequences.

It was argued that a bar may discourage victims from complaining to the police, and instead pursuing civil claims. It was also contended that it would be anomalous if the right to sue was to depend upon whether the criminal or the civil proceeding was the first to be instituted or determined. The strength of those matters will depend upon whether those consequences may in fact result in respect of the situation where no criminal proceeding has been instituted, or one has been commenced but not concluded. If they do not, these particular factors cease to have significance.

In the end, what is now at issue is a policy decision, not previously required of this Court, which properly reflects today’s society and its expectations of the justice system in this area of meeting both public and private interests. Often those interests can compete, and need to be balanced one against the other. While accepting that the issue is not free from difficulty, and that the opposing arguments each have their respective points of strength, we are satisfied that when due regard is had to all relevant factors, particularly to the underlying purpose of exemplary damages, the present ability of the criminal law to meet the need for punishment of conduct deserving punishment by the Court on behalf of society, and the recognition in the criminal process of the interests of the victim, retention of exemplary damages for criminal conduct which has resulted in conviction can no longer be justified.

This conclusion is supported by an analysis of what is sometimes proffered as a persuasive argument against such a bar. The loss of the right to bring a claim

recognised by law (“disenfranchisement”), featured in submissions and is also relied upon in many of the authorities and in some academic writing. To contend that the right is lost however really begs the question, because it presupposes an existing entitlement which is somehow now being taken away. The right to bring a claim for exemplary damages is not absolute, but exists only if there can be established a need to punish the conduct in question. If the need to punish has already been met through the Court system, then the foundation of the “right” has been removed. The claim is not one which the law recognises. The very factors which give rise to an entitlement have already been recognised, and given effect, by the sentencing process. The disenfranchisement argument also loses, or at least tends to lose, sight of the fact that exemplary damages are not compensatory. Remedies for compensation and vindication of rights are not dependent on the availability of exemplary damages, but exist, to the extent allowed by the law, quite independently. Any perceived shortcomings in that regard should not, as a matter of principle, be met by the artificial use of a remedy which is not appropriate to meet those objectives. It can also be said that vindication of the victim is recognised when a criminal conviction results. Although there may appear to be some force in the argument that a victim is deprived of conducting the pursuit of the perpetrator of the wrong through the civil court for punitive redress, that ceases to have relevance if the very basis for redress has gone. Part of the disenfranchisement argument is what has been called the therapeutic function of a tort action. Whether or not that is a proper function of the law of tort, what is presently in issue is whether it is a function of exemplary damages. We think it is not. It can again be said that in the case of personal injury an award for that purpose is to circumvent the clear legislative intent to negate liability to compensate for a tortious act. The Legislature has taken away the right of action, other than in this very limited form of enabling a measure of punishment for outrageous conduct. That punishment is directed to meeting society’s condemnation, not to the needs of the victim which are met by the right to seek compensation, including aggravated damages. Clearly in personal injury cases the right of access to the Courts, including the right to invoke the law of torts and obtain the benefits of whatever functions it may provide, has now almost entirely disappeared by reason of legislative intervention. A need in the public interest to allow a victim to seek punitive damages when he or she has already been directly involved in the exaction of appropriate punishment by Court process must be questionable.

Section 405 of the Crimes Act 1961 was also relied upon in the argument against a bar. But it is not directly relevant to a claim which is brought subsequent to the completion of a criminal prosecution. It abrogated the old felonious tort rule,

which required a civil action for damages in respect of a felony to be suspended until the defendant had been prosecuted or a reasonable excuse shown for not prosecuting. Although it falls more readily for consideration in respect of claims which are instituted prior to completion of prosecution, it can conveniently be dealt with in the present context.

The Criminal Code of 1893 abolished the distinction between felonies and misdemeanours, and at the same time abrogated the felonious tort rule. The abrogation is carried through in the form of s405. The section is designed to prevent suspension of a civil action pending completion of the criminal process. In earlier days it was thought that to allow the civil claim to continue could subvert the criminal process, hence the rule. It is now permissible actively to pursue a civil claim, even if its subject matter is also an offence and a prosecution has been or may be undertaken. Section 405 is concerned only with suspension of a remedy, i.e. a stay of proceedings. In the case of conviction of an offender for an act or omission which is the subject of a civil action, any basis for seeking suspension disappears and the section has no application. Suspension as such is not sought in, and therefore is irrelevant to, such a situation. Furthermore, and importantly if there is no entitlement to the only remedy claimed in a civil proceeding, the action is amenable to a strike out application. Section 405 cannot be invoked to protect or validate a claim which has no foundation in law, nor does it purport to create a remedy for a civil wrong. If the claim is bad in law it is not saved by s405, which will have no application.

Finally under this head is the question of discharge following conviction. In our view that must be seen in the same light as a case where a penalty has been imposed. In ordering a discharge, the Court has made a conscious and deliberate determination that the conduct in question is not deserving of further punishment or deterrence. For the same reasons which apply to the imposition of a penalty, the basis for an award of exemplary damages disappears. Again, it would be quite inappropriate for the very same issues to be revisited.

There are accordingly compelling reasons for holding that where the acts relied upon as forming the basis of an award of exemplary damages in a tort action have been the subject of a conviction in the criminal court, the claim cannot succeed. That conclusion is fortified when, as will later be demonstrated, any anomalies or undesirable side consequences can properly be avoided.

8.2 Acquittal

Where a prosecution has resulted in an acquittal, there is of course no resulting punishment. The acquittal merely embodies the conclusion that the elements of a criminal offence have not been established to the required standard. As has already been demonstrated, an acquittal does not operate as a general bar to civil proceedings based on the same acts or omissions. It would seem clear that had the Accident Compensation legislation not been enacted, the acquittal would be no bar to the plaintiff in CA104/97 maintaining an action for compensatory damages. Does the claim for exemplary damages fall to be treated differently? As has already been discussed, s26(2) is not itself a bar. Estoppel per rem judicatam does not arise (In re a Medical Practitioner; Spencer Bower & Turner, Res Judicata (2d ed 1969)) para

268). Abuse of process, using that phrase in its legal sense, remains for consideration. Again this involves a policy decision. The State has primary responsibility for the control and punishment of criminal conduct. If that responsibility has been undertaken in accordance with the rule of law and established procedures, it would require compelling reasons for not treating it as determinative in the overall interests of justice.

The starting point is that because compensation is not a consideration, the only purpose of the claim is to express society’s condemnation of the conduct, and to punish and deter. The issue is not free from difficulty, but it seems to us that where the criminal process has exonerated a person from alleged offending, then it becomes undesirable to allow what are substantially the same issues of fact to be relitigated for the sole purpose of exacting a punishment for their commission. Unlike other civil proceedings which aim to compensate the victim of a wrong, an aim which is entirely independent and separate from the criminal law aim to punish the offender, exemplary damages fulfil broadly the same punitive purpose as criminal sanctions. Although the punishment is sought by the victim rather than imposed at the instigation of the State it then becomes an abuse of process to use the Court’s civil process to achieve a different result, by a process which can only redress the wrong to the plaintiff in this very limited and largely objective and impersonal way. It is impersonal in the sense that the award does not compensate the plaintiff, but like criminal punishment requites society for the outrage it feels. If the criminal process has run its course, the justification for later seeking punishment for the same criminal conduct, albeit at the hands of the victim rather than at the instigation of the State, would seem to disappear. Again, the two important factors to be borne in mind are the punitive nature of exemplary damages, and the primacy of the criminal law in imposing discretionary court based sanctions for criminal offending.

It is essentially the same subject matter which is sought to be re-litigated, namely the commission of acts which constitute criminal offending, and importantly for the same and only purpose of exacting punishment. If that offends the finality principle, and is inconsistent with the recognised purposes of the administration of justice (Moevao v Department of Labour [1980] 1 NZLR 464,481-2), a strike out for abuse is appropriate. In Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; [1982] AC 529, a civil claim for assault by police officers was struck out when in the course of an earlier criminal trial, the Judge had ruled that no such assault had taken place. It was held that it was a general rule of public policy that the use of a civil action to initiate a collateral attack on the earlier decision was an abuse. Although not directly in point, Hunter demonstrated the control which will be exercised by the Court to prevent its processes being used in a way contrary to the due administration of justice. The relevance of an acquittal in later civil proceedings was also referred to in Tamworth Industries Ltd v Attorney-General [1988] 1 NZLR 296. There the plaintiff had been acquitted of drug charges, and then sought to recover money seized by the police in the course of investigation. A defence by the Crown that the money was in the plaintiff’s possession as a direct result of his criminal conduct in the supply of cannabis survived a strike out claim. This Court noted that there were serious arguments raised by the plaintiff, but for a number of stated reasons left the matters for determination in the context of a trial. By way of contrast, the trial context here would not be of any significance. In Gregoriadis v CIR [1986] 1 NZLR 110 this Court was concerned with an attempt to impose penal tax, which is a civil penalty for conduct which also constitutes the criminal offence of filing false tax returns. The Court held that the requirements for penal tax had to be established to a standard close to the criminal standard, and therefore an acquittal on charges of filing false tax returns was inconsistent with a subsequent attempt to impose penal tax for the same conduct. Similar reasoning must apply in the present context.

In W v W the plaintiff’s allegations are substantially those which were the subject of the criminal prosecution. The question is whether re-litigation of those would be an abuse. In our judgment it would be, as constituting an attempt to establish criminal conduct for the sole purpose of invoking punitive consequences for it, being consequences of a kind which the criminal law has determined should not be imposed. Exemplary damages may fulfil a useful role in helping to control deplorable conduct outside the reach of the criminal law, such as in the area of defamation (Richardson J in Taylor v Beere [1982] 1 NZLR 81,90). However, it is quite a different matter to use them as a back-up sanction for conduct of a criminal nature

once criminal proceedings have been unsuccessful. In principle the grounds for acquittal, whether or not they could be termed as “technical”, cannot matter.

8.3 No concluded prosecution

The starting point is the principle, earlier discussed, that a conviction or an acquittal will operate as a bar to a claim for exemplary damages. If a prosecution has been commenced, clearly it would be an abuse of process to pursue a civil claim when there is a likelihood that its very basis will disappear. It would also be quite inappropriate to pursue a civil action when the same issues were being ventilated in the criminal court. The general rule would require a stay of the civil proceeding at least until the prosecution was concluded. Where no criminal prosecution had been instituted then, in order to give consistent and full effect to the primary principle, it would be appropriate to stay the civil proceeding if it appeared that a criminal prosecution was likely. The action could be pursued once it became clear that a prosecution was unlikely to eventuate.

While a victim can decide whether or not to complain to the police, the avoidance of crime detection and consequential prosecution is not to be encouraged. To circumvent the criminal law process in order to obtain civil redress can hardly be said to be in the interests of society. That aside, there must always remain the possibility that even in the absence of a formal complaint, civil proceedings which disclose serious criminal offending will result in prosecution. The police have a duty to investigate, and a discretion, to be exercised properly, whether or not to prosecute when an offence is disclosed. (Police v Gray [1991] 3 NZLR 697).

The adoption of a rule as suggested above would remove any perceived problem, without infringing the rights of the victim. If there is not, or unlikely to be, any prosecution the right to seek exemplary damages, can be pursued. The role of the State in dealing with criminal conduct will take priority, and the intervention of private interests postponed until that role has been concluded. The rule would also remove any anomaly which may otherwise result from the civil action preceding criminal prosecution. It would also ensure that the infliction of punishment for criminal offending lies, as it should, primarily with the criminal law.

Section 405 of the Crimes Act 1961, earlier discussed in respect of its effect where there has been a conviction, remains for consideration. As noted earlier, the provision dates back in our statute books to 1893, and alleviated the common law rule

which was designed to avoid what was feared to be a subversion of the criminal process. If, as we have already indicated, it has no application to a remedy which is unavailable, then it would have the hallmarks of an abuse of process to pursue a remedy to which the plaintiff may have no entitlement. Section 405 prohibits a civil remedy being suspended merely because the acts in question amount to an offence. That is not the ground for a stay which is presently under consideration. That ground, and what constitutes an abuse of process, is that the acts in question, because they constitute an offence, are likely to be the subject of a determination by a criminal Court, which would have the result of negating any entitlement to seek the only claimed remedy.

9. Limitation Issue - CA164/97

Separately from the issue of whether a claim for exemplary damages can be brought against the proposed defendant who has already been convicted and sentenced on criminal charges in respect of acts of abuse, this appeal is also against the grant of leave under s4(7) Limitation Act 1950 to bring the proceeding for breach of fiduciary duty.

The limitation point arises because the acts of abuse occurred between 1968 and 1976 (when the intended plaintiff was between 8 and 16 years old), whereas the application for leave to bring the civil proceeding was made on 6 January 1997. Notice seeking consent to the commencement of the proceeding, as required by the proviso to s4(7), was given to the intended defendant on 15 November 1995.

The draft statement of claim accompanying the application alleges two causes of action in respect of the same acts of abuse. The first claims exemplary damages for breach of fiduciary duty by the proposed defendant as a father by abusing the plaintiff sexually, emotionally and physically. The second claims the same relief for trespass to the person namely assault and battery by the same acts complained of in the first cause of action.

As this Court said in S v G [1995] 3 NZLR 681,686 a cause of action accrues when all of its elements are subsisting, though it may be postponed where the plaintiff is under a disability or where the plaintiff reasonably has not discovered all the elements. When the tort is trespass to the person and the plaintiff is not a child the question of reasonable discoverability will seldom arise (P v T CA72/97, 6 November

1997).

In respect of the claim for trespass to the person Morris J in the High Court held that the intended plaintiff knew when she was 16 years old she had been sexually assaulted in the manner complained of; that damage is not an element of the cause of action; that the six year limitation period ran from when she ceased to be under the disability of minority on 3 November 1980, so that this claim was statute barred well before any step was taken to commence the proceeding. There is no appeal against that part of his judgment.

The Judge took a different view of the claim for breach of fiduciary duty. He noted that, being a claim for equitable relief, it is not barred by s4 Limitation Act unless by the analogy provided for in s4(9). The Judge did not apply the analogy. He considered whether the applicant should be denied leave by the doctrine of laches. He concluded that she should not. He said:

While it can be said the plaintiff was aware of the breaches of fiduciary duty alleged before 1990, there is in my view nothing to show the defendant has changed his position for the worse in view of the non prosecution by the plaintiff until now of her claim. There is nothing to suggest his plea of guilty was induced by or resulted from the conduct, misrepresentation or silence of the plaintiff. Having regard to the family situation as disclosed by the plaintiff’s affidavit and her clear fear of her father I consider it would be inequitable to find she has slept on her rights with the knowledge of them. This is particularly so because as I have said she was unaware until 1992 of the effect of the abuse upon her.

As was said in S v G (p689), where the pleaded claims are really alternatives in respect of essentially the same conduct, there is much to be said for the long established analogy whereby equity follows the law as preserved by s4(9).

In the present case the intended claims sought the same relief in respect of the same conduct. Assuming (without deciding) that there is such a claim for breach of fiduciary duty in respect of which exemplary damages are claimable, the elements of the cause of action would be complete as soon as the duty arising from the relationship between the parties was breached by the conduct of the intended defendant. As counsel accepted, damage would not be an essential element. Accordingly, the cause of action would have accrued once the intended plaintiff knew all the facts constituting the cause of action and had reached the age of majority. The position would be no different from that arising in respect of the claim for trespass to the person.

In these circumstances we can see no reason why the cause of action for breach of fiduciary duty should not be barred by analogy with the cause of action for assault and battery. We see no reason to take a different view of the breach of fiduciary duty cause of action because of the asserted delayed discovery of the link between emotional and physical consequences and the abuse made as a result of counselling within six years of the application.

Because of the possibility of analogy with a claim in negligence of which damage is an essential element, the delayed discoverability principle was examined in S v G, but there was no allegation of negligence in this case.

We would allow the appeal on this ground and hold the intended claim to be time barred.

10. Name Suppression

In CA104/97 the defendant sought suppression of his name and of particulars leading to identification. The application was opposed. Having regard to the fact that suppression rulings were made in the criminal trial, and also to the likely effects on the defendant’s professional life, we are disposed to make orders on an interim basis, but subject to the right on the part of the plaintiff to seek further review on application to the High Court. In CA164/97 there are existing suppression orders made in the High Court applicable to both appellant and respondent. They should continue. In CA103/97 the interim order for suppression of the plaintiff’s name should now be made permanent.

11. Conclusions

In accordance with the views of the majority, the judgment of the Court is in the terms which now follow.

In CA86/96, on review of the decision of Master Kennedy-Grant given on

8 December 1995 the second cause of action pleaded in the counterclaim alleging rape is struck out.

In CA103/97 the question of law posed is:

....does section 26 of the New Zealand Bill of Rights Act 1990 prevent a claim for exemplary damages in the Court’s civil jurisdiction against a defendant who has been convicted and punished in respect of the same cause of action in the Court’s criminal jurisdiction?

The answer to the question is:

Section 26 does not prevent a claim for exemplary damages in such a case. The claim is however barred for the reasons set out in this judgment.

In CA104/97 the qestion of law posed is:

Can the plaintiff sue her former psychologist, the defendant, for exemplary damages in respect of sexual abuse the subject of the claim, he having been acquitted in respect of identical allegations by jury trial in the High Court at Wellington on 22 July 1996?

The answer to the question is “no”.

In CA164/97, the appeal is allowed, the order granting leave to commence proceedings is quashed and the application seeking leave is dismissed.

The Court being unanimous that the suppression orders previously discussed are appropriate, they are now made.

All questions of costs are reserved.

Solicitors

G A Campbell, Auckland, for Appellant Daniels Corban Revell, Auckland, for Respondent Thompson B A Gibson, Wellington, for Plaintiff J

Greig Davidson Gallagher, Wellington, for Defendant Bell Gillespie Young Watson, Lower Hutt, for Plaintiff W Hollings Partners, Paraparaumu, for Defendant W

Eagles & Eagles, Invercargill, for Appellant H

King Alofivae Malosi, Auckland, for Respondent P

IN THE COURT OF APPEAL OF NEW ZEALAND CA 86/96

BETWEEN PAUL JAMES DANIELS Appellant

A N D DEBORAH RITA THOMPSON

_Respondent

Order prohibiting publication of names addresses or particulars identifying plaintiff

_{BETWEEN J}

CA 103/97

Plaintiff

A N D RAEWYN ANNE BELL Defendant

Order prohibiting publication

of names addresses or particulars

identifying plaintiff or defendant CA 104/97

BETWEEN W

Plaintiff

A N D W

Defendant

Order prohibiting publication

of names addresses or particulars

identifying plaintiff or defendant CA 164/97

BETWEEN H

Appellant

A N D P

Respondent

Coram: Richardson P Gault J

Henry J Thomas J Keith J

Hearing: 1 and 2 September 1997

Counsel: C J Hodson and J F Mather for Appellant Daniels

P Revell for Respondent Thompson

B A Gibson for Plaintiff J

B Davidson for Defendant Bell

D B Collins and A Sleeman for Plaintiff W

G L Turkington and D G Marjoribanks for Defendant W W N Dawkins for Appellant H

I M Malosi for Respondent P

_{Judgment: 12 February 1998}

_{JUDGMENT OF THOMAS J}

Introduction

The majority of the Court, in a comprehensive judgment to be delivered by Henry J, have concluded, first, that there should be an absolute bar on civil proceedings claiming exemplary damages where the acts relied upon as the basis for an award have been the subject of a conviction in the criminal courts; secondly, that a claim for exemplary damages should be struck out as an abuse of process if the defendant has been acquitted and essentially the same acts which constituted the criminal offending are relied upon; and, thirdly, that to similarly prevent an abuse of process it would be appropriate to stay the civil proceeding if it appeared a criminal prosecution was likely in respect of the subject matter of the claim for exemplary damages. These conclusions are reached largely as a matter of public policy. The role of the state in dealing with criminal conduct is accorded primacy, which is absolute where the defendant has been convicted, and effectively exclusive where he or she has been acquitted or could be liable to a criminal prosecution.

With great respect to the majority, I would wish to adopt a less radical approach.

For my part, while accepting that an award would be exceptional, I would not impose an absolute bar on a claim for exemplary damages where the defendant has been convicted of an offence involving the same conduct, or which is part of the same conduct. The defendant’s punishment in the criminal proceeding would need to be taken into account by the Court in determining whether an award of exemplary damages is appropriate. Nor would I impose a barrier on proceedings claiming exemplary damages where the defendant has been acquitted or is liable to be prosecuted for the conduct in question. Where warranted, the proceedings can be struck out or stayed as an abuse of process, but the fact the defendant had been acquitted or is liable to be prosecuted, of itself, would not be regarded as being an automatic basis for that course of action.

To my mind, the principles which have evolved in the case law in Canada and many of the States of the United States are to be preferred. In those jurisdictions there is no absolute bar against claiming exemplary damages from a person who has been convicted of an offence arising out of the same facts and no impediment to bringing such a claim where he or she has been acquitted or not prosecuted at all. I will outline the position in Canada and the United States shortly.

I have also been impressed by two reports; the Ontario Law Reform Commission’s Report on Exemplary Damages (1991) and the Law Commission for England and Wales Consultation Paper No. 132, entitled Aggravated, Exemplary and Restitutionary Damages - A Consultation Paper (1993). These reports also will be touched upon in due course. (Note the further reference to the recently published Report of the Law Commission for England and Wales. This Report is also referred to under the heading, “The reports”).

I do not propose to canvass all the many issues which arise for consideration in relation to the question before the Court. There is no perfect solution. Each option may be supported by reference to policy factors and each option may be subject to criticism on policy grounds. Flaws, anomalies and adverse consequences, although differing in what they purport, assail each proposal. I wish to focus on certain fundamental points which, to my mind, tell against an absolute bar in respect of a defendant who has been convicted and preclude any impediment in respect of a defendant who has been acquitted or not charged with a crime at all. My strong preference for this approach arises from a consideration of the function of exemplary

damages, the essential distinction between criminal and civil proceedings, and the

_{rights and interests of the victims, generally women.}

In developing my judgment I will adhere to the following headings:

_page

1. Section 26(2) of the Bill of Rights 4

2. A brief look at the Canadian jurisprudence 6

3. The position in the United States 7

4. The reports 8 (1) The Ontario Law Reform Commission’s Report 9 (2) The Law Commission’s Consultation Paper 11 (3) The Law Commission’s Report 13

5. The New Zealand setting 20

6. The function of exemplary damages 22

7. The essential differences between criminal and civil proceedings 28

8. The rights and interests of the victim 31

9. The primacy of the criminal law? 37

10. Closing comment 39

1. Section 26(2) of the Bill of Rights

Section 26(2) of the New Zealand Bill of Rights Act 1990 provides that no one who has been finally acquitted or convicted of an offence shall be tried or punished for it again. It affirms two elementary principles of the criminal law; one, that a person cannot be put in jeopardy of being prosecuted for the same offence a second time, and, the other, that no one shall be punished for the same offence twice.

Both principles have their roots in the history of criminal law and reflect notions of criminal justice which are deeply ingrained in the social consciousness of the community. The idea underlying protection against double jeopardy is that the state, with all its resources and power, is not to be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him or her to embarrassment, expense and ordeal and compelling them to live in a continuing state of anxiety, as well as enhancing the possibility that, even though innocent, they may be found guilty. See Green v United States [1804] USSC 11; 355 US 184 (1957), per Black J at 187-188. The principle of protection against double punishment prevents a person from suffering the patent injustice of being punished twice for the same offence.

I entertain no doubt that the application of s 26(2) is restricted to the criminal law. In substance it replicates ss 357-359 (special pleas of autrefois acquit, autrefois convict and pardon) and s 10(4) (relating to double punishment) in the Crimes Act

1961. See Simpson v Attorney-General [1994] 3 NZLR 667, per Gault J at 710, and

Quensell v Immigration Department (High Court, Rotorua, AP 59/91, 21 September

1992, Doogue J). The same conclusion has been reached in Canada in respect of s 11(h) of the Canadian Charter of Rights which is worded to the same effect as s 26(2). In R v Wigglesworth (1987) 45 DLR (4th) 235, at 247, Wilson J, delivering the judgment of the majority of the Supreme Court of Canada, held that the rights guaranteed by s 11(h) are available to persons prosecuted by the state for public offences involving punitive sanctions, that is, criminal, quasi-criminal and regulatory offences. She observed that, unless the section is restricted to criminal or penal matters, there could be serious difficulties in giving it a reasonably consistent application (at 250).

I acknowledge, however, that the fact s 26(2) is restricted to proceedings of a criminal nature does not preclude the underlying principles being invoked in respect of civil proceedings following a criminal trial. Double jeopardy and double punishment remain an affront to common notions of fairness. But two significant points may be noted. First, in the absence of the direct application of s 26(2), the question of the extent to which the principles should be recognised in the civil law becomes a question of policy. The Courts are no longer solely concerned to vindicate a “right” affirmed in the Bill of Rights, and the principles do not have the weight of a “right”. As a question of policy, all considerations relevant to the recognition or application of the principles must be taken into account. Secondly, the principles are no longer being applied between the state and persons charged, or who could be charged, with criminal offending. The rights and interests of the victims of such offending are now directly relevant. They must be fully considered and balanced against the rights and interests of the criminal offenders. I would like to think that my attempt to do so later in this judgment is not wholly lacking in merit.

2. A brief look at the Canadian jurisprudence

Exemplary damages are generally available in tort cases in Canada where, as in this country, the restriction embodied in Rookes v Barnard does not apply. See Vorvis v Insurance Corp of British Columbia (1989) 58 DLR (4th) 193, at 206. Initially, the weight of authority supported the view that a criminal conviction would operate as a bar to exemplary damages. During the last decade, however, the Courts

have reversed this approach. Under the prevailing approach, a criminal conviction is treated as one of the factors to be considered in awarding exemplary damages, and the possibility that the defendant may have been acquitted or that criminal charges may not have been laid is not an insurmountable obstacle to an award of exemplary damages.

The current approach began with a number of decisions at first instance. The Courts refused to find that a criminal conviction precluded an award of criminal damages, preferring to decide the question on the facts of each case. See Pollard v Gibson (1986) 1 YR 167 (Yukon SC); Wittig v Wittig (1986) 53 Sask R 138 (Sask QB) and Canada v Lukasik (1985) 18 DLR (4th) 245 (Alta QB). This trend was endorsed by the approach of the appellate Courts. The Quebec Court of Appeal in Papadatos v Sutherland (1987) 40 DLR (4th) 755, while agreed that exemplary damages ought not to have been awarded in that case, was not prepared to put the rule as high as an absolute bar where a defendant has already been punished. In Glendale v Drozdzik (1993) 77 BCLR (2d) 106, a case of “date rape”, there had been a prior conviction and punishment. Lambert JA, speaking for the Court, said that the rule would be too absolute if punitive damages could not be awarded if there had been a criminal penalty (at 115). In Herbert v Misuga (1994) 111 DLR (4th) 193, the Saskatchewan Court of Appeal commented that it would have amounted to an abdication of the trial Judge’s discretion if he had wrongly treated the defendant’s prior conviction as a bar to exemplary damages. See also Huff v Price (1990) 76

DLR (4th) 138. There are also, it should be said, some recent first instance cases to the contrary. (See Erickson v Lewellin (1996) 143 Sask R, 317; C(D) v C(K) (1993)

108 Nfld & PEIR 314 and S(D) v K(T) (1994) 123 Nfld & PEIR 194; and McDonald v Mombourquette (1995) 145 NSR (2d) 360).

Before leaving the position in Canada, I should pause to observe that I place no weight on the reasoning advanced by Sinclair Prowse J in Willington v Marshall (1944) 21 CCLT (2d) 198, at 202, to the effect that the determination whether further punishment was called for did not amount to “second-guessing” the sentencing Judge because the objective of criminal sentencing was deterrence rather than punishment. Clearly, this is not what the learned Judge intended to convey. Punishment is undoubtedly an objective of criminal sentencing.

3. The position in the United States

As in Canada, the decided cases in the United States vary reflecting the diversity of approaches adopted by the various States to the award of exemplary

damages. Some States do not allow exemplary damages at all; others allow them only where authorised by statute, and the Courts in yet other States regularly emphasise the exceptional nature of such damages. In most jurisdictions in the United States, however, exemplary damages may be recovered irrespective whether the defendant has been, or may yet be, criminally prosecuted for the same conduct. Schlueter and Redden, in their specialist work, Punitive Damages (1995 - 3rd ed), state that the prevailing view is that punitive damages are not barred by potential criminal liability for the same conduct and vice versa. Numerous cases are cited in support of this proposition. The authors note that it has been held that prior criminal punishment for conduct which is the subject of a civil suit is admissible in mitigation of punitive damages. The standard justifications for the prevailing view are that punitive damages and criminal sanctions redress private and public wrongs, respectively, and each should operate independently in its own sphere. The two forms of social retribution should supplement, not supplant, one another (at pp 75-76).

4. The reports

I have found the Report on Exemplary Damages by the Ontario Law Reform Commission and the Consultation Paper No. 132 of the Law Commission for England and Wales entitled Aggravated, Exemplary and Restitutionary Damages - A Consultation Paper of considerable assistance. Both the Ontario Report and the English Consultation Paper consider the question of allowing exemplary damages to be recovered for conduct amounting to a crime. Both favour the availability of punitive damages in such circumstances.

Since this judgment was prepared in draft, the Report of the Law Commission for England and Wales has been received. Entitled, Aggravated, Exemplary and Restitutionary Damages (Law Com, No. 247) the Report was tabled in the House of Commons on 15 December, last year. It is the outcome of extensive consultation by the Law Commission following the publication of its Consultation Paper in 1953 and a supplementary consultation paper in 1995. Numerous persons, including members of the judiciary, practitioners, academics, and organisations, are recorded as having commented on the earlier Paper. I am particularly pleased to note that the Law Commission’s conclusions coincide with my own.

I make no apology for referring to these Reports at some length. It is common ground that the question in issue is a question of policy. For that reason the extensive research undertaken and consideration given to the issue by such bodies as the Ontario

Law Reform Commission and the Law Commission for England and Wales can prove invaluable. The essential principles and policy issues are fully explored. For example, the Ontario Law Reform Commission’s Project on Exemplary Damages to examine whether, and to what extent, exemplary damages serve a rational purpose was initiated in March, 1988. Its Research Team included distinguished jurists. Working papers were prepared on various topics and, in 1989, the Commission presented preliminary drafts to a symposium. The Report was finally submitted to the Attorney-General in June 1991. Similarly, the talent and industry of the Law Commission for England and Wales in publishing a series of papers relating to the law of damages cannot be doubted. In preparing its Consultation Paper and subsequent Report, the principles and policy considerations in issue were necessarily to the forefront.

(1) The Ontario Report

Preferring the term, “punitive damages”, the Ontario Law Reform Commission considers the theoretical basis of such damages and concludes that the question whether to award punitive damages for the purpose of punishment, and the quantum of such damages, should be construed having regard to retributivist principles (at pp 31-

32). Punitive damages are therefore viewed as a vehicle for supplementing the criminal law. The Commission expresses the view that the general justification for punitive damages, and the justification of the victim’s role in the process, are buttressed if the discussion is broadened to include symbolic considerations. The possibility of an action for punitive damages, it suggests, symbolises society’s commitment to retributive justice and the public affirmation of social values (at p 33).

In thinking which foreshadows my own, the Commission considers that there is no merit in the argument that punishment is, or should be, precluded a priori from the law of torts. It states; “[W]hile it might be useful, in certain circumstances, to refer to the function of criminal law as being punishment, and the function of tort law as being compensation, to suggest that these are other than broad generalisations would be simplistic, if not incorrect, in both cases” (at pp 39-40). (Emphasis added).

Addressing the overlap with the criminal law, the Commission essentially endorses the prevalent approach of the Canadian Courts. Two fundamental conclusions are identified as being implicit in the authorities where a criminal disposition antedates a civil judgment (at pp 43-44). The first is that the differences between tort and criminal action are sufficient to justify proceedings in both. The second conclusion is that no issue of double punishment arises as a concern for the

civil court. In the view of the Commission both these conclusions are sound and are not problematic. Consequently, the Commission rejects the arguments which are advanced to suggest that a criminal conviction should be regarded as a conclusive bar to punitive damages. It concludes that tort law can supplement the criminal law by compensating the victims for certain limitations inherent in the criminal justice system which might otherwise result in some individuals who engage in criminal behaviour receiving less than their just desert. The public interest in justice is better served, it concludes, with no injustice to the defendant, “provided... the criteria for punishment and quantification are principled” (at p 45). The Commission perceives the disadvantages of public enforcement to be the fact that the actual victims of crimes are “disenfranchised” and considers that the symbolic benefits of preserving the victim’s right to commence a civil action for punitive damages and the symbolic benefits of the occasional successful action should not be ignored.

The Commission then makes the following recommendations (at p 46):

“(1) The fact that there have been or might be criminal or other similar proceedings against the defendant should not operate as a bar to an award of punitive damages.

(2) In determining the extent, if any, to which punitive damages should be awarded, the court should be entitled to consider the fact and adequacy of any prior penalty imposed in any criminal or other similar proceeding brought against the defendant.

(3) The fact that the defendant has not been charged or prosecuted and the limitation period for criminal or other proceedings has expired should not operate as a bar to a claim for punitive damages.”

I find the Commission’s reasoning resulting in these recommendations highly convincing.

(2) The Law Commission’s Consultation Paper

The scope of the Law Commission for England and Wales’ Consultation Paper was extremely wide. As its title indicates, it set out to examine all non-compensatory damages, whether based on a punitive or restitutionary principle. The restricted view of exemplary damages proclaimed in Rookes v Barnard was necessarily examined. For the purposes of consultation, no firm recommendation was made on the particular question in issue in this appeal. Nevertheless, it is a comprehensive paper based on considerable research and many of the points made by the Commission indicate a solid

foundation for allowing claims for exemplary damages in respect of conduct that represents both a criminal and civil wrong.

The Law Commission’s general proposition was that exemplary damages are appropriate where the kind of conduct involved is a serious violation of “interests of person and personality” (at p 23). It is this kind of conduct which, in general, tends to most outrage the community. The infringement of these interests is seen as being objectionable in itself. Hence, the Commission was led to the view that the punitive principle has an independently significant role to play in the protection of certain interests which demand vigorous protection and yet may not be adequately protected by compensation. It is here that the law may be especially concerned to prevent or deter infringement. Where personality interests are involved, money awards are inevitably seen as an indication of the value which the law attaches to them, and for this reason the symbolic function of punitive awards makes them particularly suited to this task (at p 28).

Noting that the award of an exemplary sum is essentially discretionary, the Commission specifically addressed the relevance of a criminal penalty when identifying a number of considerations which, in the exercise of that discretion, define the availability of exemplary damages (at 78). It noted that under the present law the fact the defendant has already been convicted and punished by means of the criminal process, whilst not an automatic bar to the award of exemplary damages, nevertheless weighs heavily against him or her (at p 79). It later explicitly considered the various arguments against exemplary damages, namely, that the aim of the law of civil wrongs is solely to provide compensation for loss; that punishment is not a legitimate function of the law of civil wrongs and should take place only within the context of the criminal law (at p 109); and that punishment ought not to be administered without the evidential and procedural safeguards developed for the protection of offenders by the criminal law (at p 110). Arguments in favour are similarly examined, such as the argument that punishment, deterrence and the marking out of conduct for disapproval are legitimate functions of the law of civil wrongs, and that the possibility of substantial exemplary awards provides better protection of rights (at pp 114-115).

As correctly pointed out by the Commission, the range of views on the question of the availability of exemplary damages is at heart a product of radically different perceptions of the role of the law of civil wrongs, particularly tort law, and of its relationship to criminal proceedings. In essence, the debate is whether the purpose of tort is exclusively to provide compensation, that is, true monetary replacement for

losses incurred, or whether deterrent, restitutionary and punitive functions have a role to play. It queried whether tort law should be viewed as being solely concerned with the reparation of harm and not, in addition, with the protection of interests from invasion (at p 121). Historically, the Commission observed, tort law has been concerned with the protection of interests as well as with reparation for harm. It concluded that it would be unwise to restrict the remedial scope of the law of civil wrongs by reference to an a priori assumption as to its natural limits. To assert that the role of the law of civil wrongs is only to provide compensation, it argued, is to assume what is at issue and to fail to address the question of policy involved (at p 122). The claim “that the law of civil wrongs is concerned only with compensation for losses is simply false” (at p 123).

The Commission then held that the perceived overlap and conflict with the criminal law can be regarded as misplaced. It observed that the view a tort action in which exemplary damages are awarded constitutes a “substitute crime” seems plausible enough when one considers the aims of retribution, deterrence and condemnation in isolation. Considered in that way, exemplary damages may appear to duplicate and simulate the criminal law. The Commission pointed out, however, that this is to ignore the way in which they operate and the reasons why they are invoked. The potential consequences of a criminal prosecution and conviction are vastly different from those of a civil action in which exemplary damages are available (at p 123). A pure compensatory principle may in certain circumstances be inadequate or artificial and exemplary damages become an important and valuable means of protecting interests which would not otherwise be effectively redressed by compensation or which demand enhanced protection. Consequently, the Commission stated that it was inclined to accept the claim that deterrence and condemnation are legitimate functions of the law of civil wrongs as a means of achieving these aims. It pointed out that the criticism exemplary damages represent an undeserved windfall is based on the premise that a plaintiff in a civil action is entitled to expect only compensation for losses suffered. This argument loses some of its force if it is accepted that other purposes can justify an award of damages (at p 125). “In conclusion”, the Commission stated (at p 127), “we do not accept the a priori argument that the purpose of the law of civil wrongs is exclusively to provide compensation and find the argument that ‘punishment’ ought to take place within the criminal law or only in conjunction with the protections afforded by the criminal law unconvincing”.

(3) The Law Commission’s Report

As I have already recited, the Law Commission for England and Wales Report was tabled late last year and received only after this judgment had been prepared. Completed after extensive study and prolonged consultation, the Report provides an immensely valuable, if not definitive, analysis and assessment of the principles and policy considerations involved in the question before the Court. A draft bill to give effect to its recommendations is appended to the Report.

The discussion and recommendations of such a distinguished body cannot be lightly dismissed. I admit to being heartened that, notwithstanding that this judgment is a dissenting judgment, the Law Commission’s conclusions coincide with my own position. An absolute bar on claims for exemplary damages where the defendant has been convicted of an offence involving the conduct concerned is rejected and no inhibition on such claims where the defendant has been acquitted or not charged at all is suggested.

The Law Commission concludes that the current legal position in the United Kingdom, founded on Rookes v Barnard, cannot be justified and that the status quo should not be maintained (at p 4). It bases this view on the perception that there is a practical need for exemplary damages, there being “gaps” in the law, that is, areas in which other remedies or sanctions are inadequate in practice to punish and to deter seriously wrongful behaviour. “In general terms”, it states, “one can regard the gaps as flowing from the fact that the criminal law and criminal process do not work perfectly (and inevitably so)”. Exemplary damages have a useful role to play in filling these gaps (at p 5). Subject to significant limitations, and provided the assessment of exemplary damages is determined by judges and not juries, the Commission expresses the view that exemplary damages are a legitimate way of meeting this practical need as a “last resort” remedy (ibid).

Preferring the term “punitive” to “exemplary”, although making it clear that the word punitive is to embrace the deterrence and disapproval aims of such damages (at pp 105-106), the Commission affirms that an award should be made only if the defendant’s conduct showed a deliberate and outrageous disregard of the plaintiff’s rights (at pp 6 and 109-110). In this judgment I have used the phrase “flagrant” when referring to the disregard of a plaintiff’s rights justifying an award of exemplary damages to convey conduct which, in the Commission’s terms, would be viewed as “deliberate and outrageous”. Further, the Commission holds that no award should “usually” be made where the defendant has already been convicted of an offence involving the conduct which founds the claim to punitive damages. The Court should

be required to take into account any other sanctions which may have been imposed when deciding whether punitive damages are necessary, and therefore available (ibid).

The main arguments advanced to the Commission for and against exemplary damages are summarised in the Report (at pp 96-97) as a preliminary step to the Law Commission moving to its own examination of the issue. The Commission noted that those consultees opposed to exemplary damages took the view that, if an act warranted punishment, this was a matter for the criminal law or some other regulatory system, and that deficiencies in the regulatory system should be dealt with directly by amendment and not “patched up” through the civil law. The Commission also stressed, however, that many other consultees were not prepared to accept that any such sharp distinction exists between the goals that may legitimately be pursued by the criminal law and by the civil law. In other words, punishment, deterrence and the marking out of conduct for disapproval are legitimate functions of the civil law as well as the criminal law. There is no bright line between the two.

In what can only be said to evidence a resolutely balanced approach, the Law Commission discusses what it perceives to be the “principled” cases for both abolishing and retaining exemplary damages. The reasons against include the fact that a defendant against whom exemplary damages are awarded is deprived of the various evidential and procedural safeguards which are ordinarily afforded to defendants in jeopardy of criminal punishment, and that such defendants should not be placed in jeopardy of double punishment in respect of the same conduct (at p 99). As part of the principled case for retaining exemplary damages, however, the Commission begins with the proposition that civil punishment is a different type of punishment from criminal punishment, from which the conclusion is drawn by its advocates that it is coherent to pursue the aims of punishment (retribution, deterrence, disapproval) through the civil law, in addition to the criminal law, and in a civil form which does not necessarily have to mimic the criminal form (at p 100). In this context, the distinctive features of civil punishment are referred to. The first concerns the locus standi or entitlement of complainants to sue. Civil punishment is sought and enforced by individual victims of wrongdoing in contrast to criminal punishment which is sought by or on behalf of the state. Reference is also made to the concern relating to the stigma associated with criminal punishment, which is not attached to civil punishment (at pp 100-101). The Law Commission then states that it follows from the view that civil punishment is distinctive in the ways enumerated that the objections which it has listed “fall away as necessary objections”. It is always an open question, the Commission observes, which has to be addressed in respect of each “objection” in turn, whether

awards of exemplary damages should be governed by the same rules as exist in the criminal law (at p 101).

After what it describes as “much deliberation”, the Commission expresses its conclusion that “the principled case for retaining exemplary damages is to be preferred to the principled case for abolition”. “In other words”, it states, “civil punishment can be adequately distinguished from criminal punishment, and has an important and distinctive role to play” (at p 101).

The Law Commission then summarises the general policy arguments central to retaining exemplary damages. These arguments are to the effect that civil punishment has some deterrent effect, that the abolition of exemplary damages would remove one means of protecting potential victims of wrongdoing, and that the criminal law and criminal process do not work perfectly so that civil punishment can go some way towards making up for the defects. This is so even though, in an ideal world, such defects would be removed by reform of the criminal law and criminal process themselves (at pp 101-102). The policy arguments against the retention of exemplary damages, that is, encouraging litigation by enticing potential litigants with the availability of large awards, the reliance on subjective concepts such as “outrage” and, that, as damages awards should be moderate, and the circumstances in which they are awarded fairly predictable, they are unlikely to act as much of a deterrent (at p 102), are explored. But the Law Commission reaches the opposite conclusion. In contrast to the central policy arguments for retaining exemplary damages, it affirms that, “the central policy arguments against retaining exemplary damages are unfounded or surmountable”. The Commission’s reasons for reaching this conclusion are then set out at some length (at pp 102-106), in the course of which it observes that the case against exemplary awards appears to be essentially theoretical, rather than practical, concerned to establish the “neatness” of a sharp divide between the civil and criminal law (at p 105).

The limitations which the Law Commission would place on the availability of exemplary damages are then outlined (at pp 123-186). It recommends, inter alia, making the availability of punitive damages conditional on the other remedies which the Court awards being inadequate to punish and deter the defendant, thus requiring the Court to refuse to award punitive damages where the defendant has been convicted of a criminal offence involving the conduct for which punitive damages are claimed unless there are exceptional reasons why an additional award of punitive damages is still necessary and appropriate. The Court is to take into account the fact that other

sanctions may already have been imposed as, for example, in disciplinary proceedings in respect of the same conduct (at p 123).

Although the Law Commission regularly refers to the possibility that the defendant may have been convicted in criminal proceedings, it specifically addresses the relevance of a conviction in criminal proceedings in a separate section (at pp 132-

136). The Commission observes that, as a defendant may already have been convicted by a criminal court of an offence involving the conduct for which punitive damages are claimed and punishment may have been exacted from him or her, it would be unacceptable if the defendant could be punished twice over for the same conduct - once by the criminal law and once by the civil law through an award of punitive damages. But the Commission perceives the pertinent question to be the much more difficult question as to how double punishment can best be avoided where punitive damages are claimed in a civil court (at p 133). Discussing the issues which this question raises, the Commission notes the obvious difficulty in formulating an adequate concept of conduct that is “identical” for the purposes of the double punishment concern. In particular it observes that one cannot use the phrases “same offence” or “same wrong” as the concept is not for use solely within the criminal law or the civil law, respectively, but rather across the boundary of the criminal and civil law. One cannot employ terms which are unique to, or have particular (different) meanings within, each sphere (at p 133). The Commission prefers the use of the phrase, “a common factual basis”, and the draft bill uses the words, “an offence involving the conduct concerned”. But the Commission notes that the phrase will need to be construed by the courts sensibly and not restrictively (ibid).

The Law Commission then examines the “strong reasons” why a civil court should not even be permitted to address the question whether the criminal punishment is adequate (at p 134). These reasons are the difficulty in assessing what level of punitive damages is the equivalent of the various forms and levels of criminal punishment in order to see if a “top up” punitive award should be awarded, the challenge to the authority and integrity of the criminal courts if civil courts were to make “topping up” punitive awards, and the fact the criminal courts are likely to engage in a far more extensive, and possibly expert, assessment of an offender’s circumstances than the civil courts (at p 135). But the Commission is not persuaded that these reasons justify an absolute bar to a claim for exemplary damages where the defendant has been convicted by a criminal court in respect of the same conduct. It states (ibid):

Nevertheless, we have come to the conclusion that it would be inappropriate

to advocate a complete and automatic bar; rather a court should have a

discretion to refuse to consider or make an award of punitive damages, where a defendant has already been convicted by a criminal court. ‘Hard’ cases could well arise, in which it might, exceptionally, be appropriate for a court to proceed to the ‘assessment’ stage.

Accordingly, the Law Commission holds that the question whether a claim to punitive damages is unavailable because of prior criminal punishment in respect of the same conduct ought to be a matter for the discretion of the civil court. It expresses the hope that, because of the strong arguments for barring a punitive damages claim in such circumstances, the courts would only exceptionally find that punitive damages could be awarded in a case where the defendant had already been convicted in a criminal court for the same conduct. It therefore recommends that the courts must have regard to the principle that exemplary damages “must not usually be awarded if, at any time before the decision falls to be made, the defendant has been convicted of an offence involving the conduct which is alleged as the basis of the claim to punitive damages” (at p 136).

The Commission does not purport to deal with the situation where the defendant is acquitted or not charged at all. In view of its endorsement of the principled and policy arguments for refusing to recommend an absolute bar on exemplary damages where the defendant is convicted, this absence of attention is to be expected. Accepting, as it does, the distinction between the goals of criminal law and the goals of civil law and recognising, as it does, that exemplary damages perform useful and important functions with value as a supplementary device to the criminal law and process, the Commission obviously does not perceive a need to be restrictive in respect of punitive damages where there has been an acquittal or no charge has been laid. Thus, when commenting in a footnote on the question of staying civil proceedings, the Commission states (ft. 146, at p 136):

... if, in contrast, the defendant is acquitted or the proceedings against him or

her end before the conclusion of the criminal trial, then a plaintiff should normally be permitted to proceed with his or her civil claims (including a claim to punitive damages in respect of the conduct concerned). (Emphasis added).

This approach is confirmed in the terms of the draft bill attached to the Commission’s Report. The principle that punitive damages must not usually be awarded applies only where “the defendant has been convicted of an offence involving the conduct concerned” (See clause 4(1)).

No express reference is made to the situation where the defendant has not been charged with an offence in respect of conduct which could possibly form the basis of a charge. Again, however, and for the same reasons, no particular reference is to be expected. The right to claim exemplary damages as recommended by the Law Commission would apply. It would, indeed, be perverse to attribute to the Commission any other conclusion when it expressly contemplates that a plaintiff normally would be permitted to proceed with a claim for punitive damages where the defendant is acquitted. The anomaly of accepting that a plaintiff can proceed where the defendant is acquitted but not where he or she has not been charged at all would be too incongruous to brook. Moreover, the terms of the draft bill again indicate that there is no impediment to a plaintiff suing a defendant in respect of conduct which might form the basis of a criminal charge. The principle that punitive damages must not be awarded where the defendant has been convicted of an offence applies if he or she has been convicted “at any time before the decision [whether to award punitive damages] falls to be made” (clause 4(1)). (Emphasis added).

5. The New Zealand setting

This Court held in Donselaar v Donselaar [1982] 1 NZLR 97 that s 5(1) of the Accident Compensation Act 1972 does not bar an award of exemplary damages following an alleged assault or battery. It was held that, without intruding into the field of compensation which the Act had taken over, a claim for exemplary damages should lie as benefits under the Act were in no sense punitive. Any doubt that a claim for exemplary damages could be made in New Zealand was removed.

In a contemporaneous case, Taylor v Beere [1982] 1 NZLR 81, the Court held that in appropriate cases exemplary damages are recoverable in New Zealand for defamation. Under the heading “The Future of Exemplary Damages under New Zealand Law”, Richardson J, as he then was, provided a helpful examination of the general policy question whether this Court should rule that exemplary damages could not be awarded in New Zealand (at 89-91). He unhesitatingly answered the question in the negative. The learned Judge took the view that, if exemplary damages were to be abolished, the proper route to achieve that end was by legislation. But, in any event, he was not persuaded such a change would necessarily be in the public interest.

Richardson J considered the arguments for and against, including the argument that, if the defendant’s conduct is considered worthy of punishment, it should be dealt with by the criminal law and under the protection of the criminal law, and that the

defendant should not be in double jeopardy and face punishment in civil proceedings as well as under the criminal law. Two considerations weighed with the learned Judge. Much of the opposition to exemplary damages, he pointed out, is based on the premise that there is or ought to be a clear demarcation line between the legitimate concerns of the law of torts and those of the criminal law and, so the argument ran, punishment is the exclusive concern of the criminal law. The soundness of this premise was a matter of dispute because, as had been observed by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118, at 149, the roots of tort and crime in the law of England are greatly intermingled. Today, Richardson J observed, tort law cannot be fitted neatly into a single compartment, in part because it serves various social purposes and is not simply a compensation device or a loss distribution mechanism. Reference was made with approval to Lord Wilberforce’s observations in Broome v Cassell [1972] UKHL 3; [1972] AC 1027, at 1114, that “it cannot be taken for granted that the purpose of the law of tort is compensation, still less, that it ought to be an issue of large social import, or that there is anything illogical or anomalous in including a punitive element in civil damages or, conversely, that the criminal law, rather than the civil law, is in these cases the better instrument for conveying social disapproval, or for redressing a wrong to the social fabric”.

Richardson J said it is also arguable that we have already come to place too much reliance on the initiatives or instrumentalities of the state and so to expect too much of the criminal law as a vehicle of social control in an increasingly diverse and multi-value society, and that in the long run the overuse of criminal sanctions is likely to diminish respect for the criminal law contrary to the public interest. Although not pursuing this line of argument further, the learned Judge noted that it added to the doubt whether the concepts of compensation and punishment could sensibly be contained in watertight compartments.

I am not, of course, suggesting that the question whether exemplary damages are available in tort where the conduct is also a crime was in issue in Taylor v Beere. Rather, I find the general observations of Richardson J helpful in indicating the role of exemplary damages in tort in relation to the criminal law. Of particular assistance are the observations rejecting the notion that punishment is the exclusive concern of the criminal law, that tort law cannot be fitted neatly into a single compartment because it serves various social purposes, that too much reliance is placed on initiatives or instrumentalities of the state, that we expect too much of the criminal law as a vehicle of social control in an increasingly diverse and multi-value society, and that in the long run the overuse of criminal sanctions is likely to diminish respect for the criminal law

contrary to the public interest. Yet, to exclude claims for exemplary damages and not allow a jury or a Judge to register condemnation of deliberate and outrageous conduct on the part of a defendant in tort proceedings overlapping the criminal law would be to make these concepts substantially otiose. There are few aspects of a citizen’s conduct today which may not constitute a crime or a quasi-crime or a breach of a regulatory provision. It must be accepted, therefore, that the bar or impediment to exemplary damages proposed by the majority where the crime and the civil wrong coincide would limit the significance of Donselaar v Donselaar significantly and render idle many of Richardson J’s general observations as to the role of exemplary damages in our society.

A number of cases have since been brought in the High Court seeking exemplary damages where the defendant had previously been convicted of a crime. For decisions favouring a right to make such a claim, see G v S (unreported, High Court, Auckland, SP 576/93, 22 June 1994, Blanchard J); Caldwell v Croft Timber Co Ltd (1997) 1 BACR 367, [1997] ERNZ 136; Akavi v Taylor Preston Ltd [1995] NZAR 33; and (with reluctance) O v U [1996] NZHC 444; (1996) 14 CRNZ 76. For a case in which the right to claim exemplary damages was denied, see P v P [1993] 3 DCR 843. In S v G [1995] 3 NZLR 681, at 692, this Court observed that, for the purposes of that case, it was sufficient that the potential for there to be an element of double punishment be taken into account in the overall assessment whether the respondent should have leave to commence a proceeding out of time. Exemplary damages have been awarded in three cases where the defendant had not been prosecuted in respect of the criminal acts in issue; see A v M [1991] 3 NZLR 228, (1991) 7 CRNZ 146 (as E v M); H v R [1996] 1 NZLR 299; and G v G [1996] NZFLR 49.

6. The function of exemplary damages

The function of exemplary damages is part of the function of the law of torts, and I will initially examine the question in that wider context concentrating on those functions relevant to the present inquiry.

The notion that the state’s primary responsibility for the control and punishment of criminal conduct provides a compelling reason for treating it as determinative is founded on a restrictive view of the function of exemplary damages. As indicated in the Ontario Law Reform Commission’s Report, the perception that the function of criminal law is punishment and the function of tort law is compensation is a broad generalisation and is simplistic (at pp 39-40). The function of the law of torts is

far from being one-dimensional. As Linden states in his text, Canadian Tort Law (5th Ed -1993) at p 2, tort liability serves a number of functions. Of course, the obvious is to be acknowledged. Compensation is the first and foremost function. But this function is not the sole or exclusive function. Other objectives such as deterrence, vindication, condemnation, education, the avoidance of abuses of power, appeasement of the victim and the symbolic impact of a decision as an expression of society’s disapproval of certain conduct all have a role to play.

Deterrence, for example, is commonly mooted as a legitimate function of the law of civil wrongs. In the past, because of the common roots of tort and criminal law the purpose of the law of torts has been perceived to be much the same as criminal law. See Linden, supra, at p 6. The great Lord Mansfield in Wilkes v Woods [1763] EngR 103; (1763), Lofft 1, at 19; 98 ER 489, at 498-9, wrote that damages act “as a punishment to the guilty, to deter from any such proceeding for the future...”. See also Holt CJ in Ashby v White [1790] EngR 55; (1703), 2 Ld. Raym. 938; 92 ER 126. It is true that many commentators have doubted the efficacy of tort law as a deterrent. This doubt is particularly evident in countries in which the common law action for damages in respect of personal injuries remains intact. Deterrence is then seen to be “of a low order”. See Morris, “Negligence in Tort Law - With Emphasis on Automobile Accidents and Unsound Products” (1967), 53 Va. L Rev. 899, at p 900. Irrespective of this qualification, however, it can be tenably asserted that deterrence is not to be excluded as an ancillary function of the law of torts.

Again, condemnation or admonition are legitimate functions. By means of an action in tort, society is able to mark its disapproval of certain conduct. The underlying values of the community are reinforced. Closely allied to this function is the educational aspect of tort law. The publicity associated with the trial of a tortious claim directs unfavourable publicity against a tortfeasor and in the process can inform or educate the public as to what is or is not considered acceptable conduct. See Linden, supra, at pp 12-15 and 24-25. See also Donald Harris, “Can the Law of Torts Fulfil its Aims?”, (1990) 14 NZULR 113, at p 115.

Tort law also can serve the purpose of vindicating and appeasing the victim. Included in this concept is the therapeutic effect of a civil trial in which the victim is an equal participant with the perpetrator of the offending conduct. Professor Feldthusen, in “The Civil Action for Sexual Battery: Therapeutic Jurisprudence?” (1993)

25 Ottawa LR 203, at p 211, states that many victims of sexual battery have reported a therapeutic motivation for taking action, claiming that various aspects of the litigation

are expected to assist them along the path to recovery. For some victims the sexual battery litigation is perceived to be part of the healing process. These therapeutic expectations are associated with the formal equality which exists between the plaintiff and defendant in a civil proceeding and the greater control which the plaintiff has in that process compared with being a complainant and witness in a criminal prosecution.

Two cases illustrate the point. In H v R, supra, Hammond J awarded $20,000 exemplary damages in respect of the sexual abuse of a male plaintiff when he was aged seven to 15 years by an uncle who died after the commencement of the proceeding, but before trial. The Police had declined to prosecute. In G v G, supra, Cartwright J awarded the sum of $80,000 in a proceeding brought by a woman against her former husband, a doctor, in respect of a relationship characterised by physical, sexual and psychological abuse and violence. In both these cases the plaintiff’s evidence clearly indicated therapeutic motives for taking action.

Professor Feldthusen suggests that the therapeutic potential of civil proceedings for the victim is greatest where the alleged offender has been tried and acquitted or not prosecuted at all (supra, at p 229). He describes this situation as the “classic situation” in which the civil action offers the possibility of affirming the victim’s story, alleviating whatever harm she may have suffered from the criminal process and verdict, and possibly even punishing the assailant with punitive damages.

I should pause here to clarify that this therapeutic effect is not to be confused with that of compensation. The victim is not seeking damages for the psychological or emotional harm which she has suffered or to obtain money to pay for therapeutic treatment. Rather, the therapeutic benefit is a side effect of a proceeding in which the victim sues her alleged assailant on an equal footing and in circumstances where she has relatively greater control over the conduct of the process than in criminal proceedings. The therapeutic effect is, as with other functions of the law such as deterrence, condemnation, and the like, the consequence of the process, and not an item falling under the head of compensation.

A final function which may be mentioned is that of protecting legal interests or rights and signifying society’s commitment to retributive justice. This function is seen to have symbolic importance. Compensation recognises the value attaching to the plaintiff’s interest or right which is infringed, but it does not place a value on the fact the interest or right ought not to have been infringed at all. The law of torts can serve

to highlight the fact that the violation of certain values is in itself objectionable, irrespective whether any compensatable loss ensues.

It will be at once obvious that, with compensation put to one side, these various functions are exceedingly well served by exemplary damages. Although the compensatory function also serves to deter, appease, admonish, educate, and protect legal interests, the ability of the plaintiff to claim exemplary damages where the defendant’s conduct is flagrant fortifies each of these functions. In many respects, the achievement of a particular function will, in effect, coincide with the availability of exemplary damages: the deterrent aspect is realised by the possibility of awards for punitive damages; the condemnatory or admonitory function is significantly reinforced by the Court’s ability to award damages unrelated to the compensation of the plaintiff for his or her loss; the educational aspect is strengthened; the purpose of appeasing the victim with the motivation or expectation of a therapeutic benefit is greatly enhanced; and the symbolic importance of tort law in protecting legal interests in certain circumstances by ascribing a value to the fact of the infringement of those interests itself is maintained. It is difficult to see how the law of torts could satisfactorily accomplish these functions without the adjunct of exemplary damages.

Professor Waddams recognises this point in his well-known text, The Law of

Damages, (2nd Ed - 1991) at p 11-28:

It seems that the most rational solution is for the civil court to consider the extent of the criminal punishment and to reduce accordingly the exemplary damages that otherwise would have been appropriate. The objection that, by thus adding to punishment, the civil court usurps the function of the criminal court is, in effect, an objection to the whole concept of exemplary damages.

Consequently, unless the law of torts is to be weakened or its functions undermined, the role of exemplary damages should be maintained, or, at least, not diminished without considerable care and caution. This perspective must be of particular importance in a country such as New Zealand where compensation for personal injury has been removed from the scope of common law damages. Only exemplary damages remain to serve the various non-compensatory functions of tort law. Added care and caution is required.

As already mentioned, the potential impact of retracting the victim’s ability to recover exemplary damages in cases where the conduct also constitutes a crime is immense simply because so much social and economic activity is regulated by criminal, quasi-criminal or regulatory statutes. I cannot accept that this substantial abdication of

the traditional functions of the law of torts is justified. Rather, as suggested by both the Ontario Law Reform Commission and the Law Commission for England and Wales, exemplary damages should be perceived as supplementary to the criminal law. It is to be accepted that the two overlap, but to the extent exemplary damages supplement the criminal law the community will be better served by the pursuit of those functions, whether common to both or discrete to the law of torts. The role of exemplary damages in the law persists irrespective whether the offending conduct is also a crime.

I should, perhaps, close this section of my judgment by clarifying what I consider Cooke J, as he then was, meant in Donselaar v Donselaar, supra, when he said that the only feasible way of consciously moulding the law of damages to meet social needs without intruding into the field of compensation which the Accident Compensation Act has taken over, appears to be to allow actions for damages for purely punitive purposes, and to accept that, as compensatory damages (aggravated or otherwise) can no longer be awarded, exemplary damages will have to take over part of the latter’s former role (at 107). “In other words”, the then President added, “...exemplary damages will have to do not only the work assigned to them by Broome v Cassell but also some of the work previously done by the other heads of damages”. I believe this statement has been read out of context and has been misunderstood. It has been taken to suggest that there should or could be an element of compensation in an award of exemplary damages. See McLaren Transport Ltd v Somerville [1996] 3

NZLR 424, at 433. See also G v G (1996) NZFLR 49, at 58, and O v U (1996) 14

CRNZ 76, at 79.

With respect, Lord Cooke was not suggesting the Court should develop the law of exemplary damages so as to include any element of compensation or remedy any perceived shortcomings in the statutory scheme. Indeed, in the same paragraph as that referred to, the learned President specifically used the phrase, “without intruding into the field of compensation which the Act has taken over”. He then expressly stated that compensating damages (aggravated or otherwise) “can no longer be awarded”. In the following paragraph the President explicitly spelt out that the Courts will need to keep a tight rein on actions with a view to countering any temptation, conscious or unconscious, to give exemplary damages merely “because the statutory benefits may be felt to be inadequate”. Far from even suggesting that exemplary damages should have a compensatory element or be designed to alleviate the shortcomings of the Accident Compensation Act, Lord Cooke was suggesting that, in order to ensure that the law of civil damages, including tort law, meets the purposes which social needs dictate,

exemplary damages alone may need to serve the functions which tort law previously achieved with both compensatory and exemplary damages. To the extent those functions were inherent in compensation they are clearly not available in respect of accidents resulting in personal injury. Exemplary damages remain the only means of securing the wider functions of tort law.

7. The essential differences between criminal and civil proceedings

We have seen that the “simplistic” adoption of “broad generalisations” to the effect that the function of the criminal law is punishment and the function of tort law is compensation results in the role or functions of exemplary damages being undervalued. But one broad generalisation leads to another and it is equally simplistic. It is that for the purpose of the principles of double jeopardy and double punishment a claim for exemplary damages in a civil proceeding places the defendant who has already been convicted in the criminal courts in jeopardy of a further adverse determination in respect of the same offence and the prospect of double punishment. While, of course, partly correct, the perception ignores the essential differences between the criminal trial and a civil proceeding seeking exemplary damages. The two proceedings possess different objectives, address different wrongs, focus on different conduct, lead to different consequences, and the participants in the proceedings have a different status and different roles. An appreciation of these differences makes it easier to accept that exemplary damages supplement rather than supplant the criminal law.

The different objectives are plain. The purpose of the criminal process is to promote the public interest by controlling criminal conduct. To that end the state seeks to punish offenders for the crimes which they commit. Certainly, in the individual case, the manner of the offending and the effect it will have on the victim can be taken into account, but the essential purpose of promoting public order cannot be disregarded. The punitive objective of civil proceedings for exemplary damages, on the other hand, is that of the victim. It is to punish the defendant for his or her flagrant conduct towards her. Exemplary damages will be directed more often than not at the manner of the defendant’s conduct. It is the flagrancy of the defendant’s conduct which attracts the damages and serves the wider function of exemplary damages. In other words, the pursuit of punitive aims, as pointed out by the Law Commission, has an entirely different meaning in civil proceedings. It is this different meaning that led Lord Hailsham in Broome v Cassell, supra, at 1082, to deprecate the use of the word “fine” to denote an award of exemplary damages because “damages remain a civil, not a criminal, remedy”.

There is also a difference between the nature of the criminal offence and the overlapping civil wrong. The criminal offence is not only a wrong against the individual victim, who is harmed, but also a wrong against society at large, which suffers a disruption to its good order. A civil wrong is a wrong against the victim. An award of exemplary damages does not transform the civil wrong into a crime or the defendant into a criminal. It is, of course, for this reason that the protections afforded by the criminal law are not critical in the context of a civil trial.

Different conduct is also likely to be in issue. In the criminal courts the trial will be focused on the elements of the charge which the accused faces. In the civil courts the emphasis will be on the features which make the conduct of the defendant a flagrant infringement of the plaintiff’s rights and interests. Furthermore, no clear line will necessarily exist between the conduct relevant to the criminal charges and the conduct relied upon in the civil claim for exemplary damages. Not infrequently, for example, the criminal charges may cover only part of the period during which the conduct complained of occurred. An accused could be convicted of assaulting his partner on the bare evidence relevant to the incident which is the subject of the charge. The evidence relevant to a subsequent claim for exemplary damages, however, would be likely to include the surrounding circumstances and traverse much of the history of the parties’ relationship. With respect, I consider that an absolute bar on claims for exemplary damages where the conduct in issue is allegedly criminal will give rise to considerable litigation directed to establishing that the acts in issue, or the elements of the cause of action in the civil proceeding, differ from the acts in issue or ingredients of the charge in the criminal proceeding.

A clear cut illustration of the different standpoints the same set of facts may generate is a claim for exemplary damages based on an alleged breach of fiduciary duty. The specific offences which will constitute the crime or crimes are likely to be part only of the circumstances and behaviour of the defendant which gives rise to the alleged fiduciary duty and which establishes a breach of that duty of sufficient outrageousness to merit an award of exemplary damages. The cause of action focuses on the trust, the circumstances giving rise to that trust, and the breach of the trust. In the criminal courts it will necessarily be the overt acts of the offender which will be principally in issue and not the relationship. See, for example, the decision of the Supreme Court of Canada in Norberg v Wynrib (1992) 92 DLR (4th) 449.

The consequences of a criminal conviction and punishment and an award of exemplary damages also differ markedly. A criminal conviction may involve imprisonment or the threat of imprisonment. It also carries with it a stigma and the possibility of wider repercussions in the offender’s personal circumstances, such as his or her employment. Exemplary damages are a purely monetary penalty and, while an award may serve the wider functions referred to above, it does not carry the same stigma or likelihood of extraneous repercussions.

By far the most significant difference, however, and one which I will expand on below, is the different role or status of the victim. In any given case, the victim’s interest can be said to be co-extensive with the state’s definition of the public interest to a limited extent only. See Feldthusen, supra, at p 213. In a civil proceeding the victim has the status of a plaintiff and faces the defendant on an equal footing, and she pursues her own direct interest in seeing that, by her lights, justice is done. The differentiation is carried through to the sentencing process and the punishment imposed. While the circumstances of the offence and the consequences to the victim will not be overlooked, the primary attention of the Court will be directed at the crime and personal circumstances of the offender in a manner which has no counterpart in a civil claim for exemplary damages.

I accept, of course, that many of the above matters may be addressed in both a criminal proceeding and a proceeding claiming exemplary damages. That is to be expected simply because the two proceedings overlap. But the proceedings are not coextensive and the fundamental differences between them confirm that both have a legitimate role to play in meeting society’s needs.

8. The rights and interests of the victim

I have already touched on the differing status and role of the victim in criminal and civil proceedings seeking exemplary damages. Although I acknowledge that it is not strictly a gender issue, because by far the greatest number of victims of the kind of crimes which give rise to claims for exemplary damages are women, I have used and will continue to use that gender in this judgment when referring to the victims.

My concern is that the bar on exemplary damages where the accused has been convicted and punished or his conduct constitutes a crime for which he has been acquitted or might be charged will deprive women of access to a mechanism by which they can enforce their rights. The Law Commission’s Consultation Paper, it will be

recollected, said that it may be thought that such access is “a fundamental feature of a free society”. I cannot but agree. Denying women the ability to choose to sue and pursue a claim for exemplary damages impinges upon the recognised basic right of all individuals in a free and democratic society to have access to the Courts. I also consider that the denial of that right in the circumstances under consideration is inherently unfair and discriminatory in that it will mainly affect women rather than men.

In the civil proceeding in which she seeks exemplary damages, the plaintiff enjoys formal equality with the perpetrator of the attack upon her giving rise to the outrage which she seeks to vindicate. Her position is dramatically improved in comparison with her status or role as a complainant and witness in a prosecution brought by the state. Subject to such constraints as her resources may impose, she can control her own case. The formal equality which she enjoys with the defendant means that she need only establish the defendant’s conduct to the civil burden of proof as distinct from the higher burden imposed in criminal cases. The inquiry will not be directed at determining whether the elements of the charge can be proved beyond reasonable doubt so much as determining what really happened.

Consequently, although the complainant is pivotal in a criminal trial, her role does not equate with that of the accused. He stands at the centre of the criminal justice system while she is treated as being peripheral to it. More often than not, the central concern in a criminal trial is the accused’s interest in obtaining an impeccably fair trial. (See, for example, R v McIlroy (Unreported, 17 December 1997, CA 120/97). Many commentators have emphasised the alienating and destructive effect of a criminal trial on complainants. Her rights are subjugated to the rights of the accused. I am not, of course, being critical of the presumption of innocence or the procedural protections accorded an accused. That presumption and those safeguards are vital to prevent innocent persons being convicted. The point I make is that, in the process, the victim is a mere witness. By contrast, in a claim for exemplary damages she enjoys an equality with the defendant which gives her an important measure of control over the proceeding.

The high standard of proof in criminal proceedings necessarily means that guilty persons will be acquitted. The Crown may not have sufficient evidence to prove the charge beyond reasonable doubt, the accused may be acquitted because of the Police failure to comply with the Bill of Rights, or because of inordinate or systematic delay in prosecuting the accused or, indeed, because of a mere technicality. Irrespective of the reason for the acquittal, the plaintiff has not been vindicated and

none of the wider functions of exemplary damage discussed above have been met. Further, having suffered the ordeal of a criminal trial, the victim is worse off than before the trial. An acquittal casts doubt on her claim. In such circumstances, the ability to claim exemplary damages will, where she chooses to exercise her right to bring a civil proceeding, provide the woman with the opportunity to obtain the vindication which she seeks.

The availability of a claim for exemplary damages at the hands of the victim also may operate as a salutary influence on the operation of the criminal justice system. Such damages can shape the thinking and attitudes of the Police and public authorities, as well as the public. A v M, supra, is an example of a case where the victim was left with no alternative but to claim exemplary damages if she was to see her attacker punished. She complained that her husband had raped her, but the Police declined to prosecute him. One can only speculate that at that time, namely, 1986, the possibility of prosecuting a husband for rape had not yet gained sufficient acceptance following the enactment of the relevant amendment to the Crimes Act. (See s 2 of the Crimes Amendment Act 1985, repealing s 128(3) of the Crimes Act 1961). In civil proceedings the wife established the charge and was awarded $20,000 in exemplary damages. Similarly, in H v R, supra, the Police had declined to prosecute the defendant in respect of child sexual abuse which had occurred 20 years before as it was considered insufficient evidence was available. Yet, $20,000 was awarded in exemplary damages.

It follows from what I have said that I concur with the view that barring a claim to exemplary damages where the conduct constitutes a crime is to effectively “disenfranchise” victims of crimes, especially women who have been sexually violated or abused. As the Ontario Law Reform Commission states, it is beyond dispute that criminal conduct is a public matter, but one of the disadvantages of public enforcement is the fact that the actual victims of crime are disenfranchised (supra, at p 45).

I reject as strained the argument that women are not “disenfranchised” because they do not have an existing entitlement to sue for exemplary damages. Access to the Courts to seek a legal remedy is not a grant; it is a fundamental right which must be assumed to exist unless and until it is taken away. The right of a person who has been subject to flagrant conduct to seek exemplary damages from the person who is responsible is part of the general law and the proposed prohibition can only be seen as an exception to that general principle. Victims of crime are effectively disenfranchised

if they are required to resort to public enforcement to punish the perpetrator and vindicate their complaint.

Moreover, Donselaar v Donselaar reaffirmed the right to seek exemplary damages irrespective of the fact that the plaintiff cannot claim compensatory damages for personal injury, and the role of exemplary damages in tort was generally endorsed in Taylor v Beere. It is a right widely recognised in other relevant jurisdictions. It has been recognised by the High Court in this country. See A v M, supra, H v R, supra, and G v G, supra. In G v G, at 59-60, Cartwright J observed that the plaintiff was entitled to choose a civil claim for exemplary damages, as she had done, rather than lay a criminal complaint. The availability of exemplary damages, she said, was consistent with the trend towards restorative justice in allowing the victim rights and a role in the proceedings which are not available in criminal proceedings (at 60). These comments were echoed in argument in O v U, supra, at 80.

In my view, therefore, it is simply not possible to say that the ability to claim exemplary damages is a right which a woman who suffers outrageous behaviour undoubtedly enjoys if that behaviour does not constitute a crime, but is not a right if it does. Victims have a right of access to the Courts and the right to a remedy which should be respected and protected by the law no less than the offender’s right not to be punished twice. Long-standing rights should not be so easily curtailed, certainly not by the application of a principle which is itself no part of the Bill of Rights and, at best, can only be held to be analogous to it. The right of access to the Courts should not be denied to avoid confronting the reality that women will be effectively disenfranchised by the proposed bar on exemplary damages.

It follows from what I have said that I consider it is a fallacy to suggest that the “right” to bring a claim for exemplary damages is not absolute, but exists only if there can be established a need to punish the conduct in question, and that the right therefore disappears where the need to punish is already being met through the criminal system. To my mind, this reasoning begs the question. It assumes that the criminal process as such meets that need in all cases, when the critical question is whether or not it does so. My contention is that, having regard to the function of exemplary damages, the essential differences between criminal and civil proceedings, and the rights and interests of the victim, it cannot be said that the criminal process leaves no room for the operation of a civil suit for exemplary damages at the instance of the victim. Having regard to the serious implications for the offender and the need to maintain the safeguards of the criminal law designed to avoid the conviction of the innocent, the

civil courts may be the appropriate or, indeed, the only forum for giving full effect to the victim’s rights and interests. Rather than have these safeguards compromised, parallel civil proceedings become the means by which the victim is able to ensure that her assailant receives his just desert. (See the Ontario Report, supra, at p 45).

Adopting this approach does not mean that the civil courts are placed in the position of “second-guessing” the sentence of the sentencing Judge in the criminal court in the manner feared in some quarters. Of course, the extent to which the sentence imposed on the offender meets the various purposes of exemplary damages is necessarily in issue. But the civil court is not required to find, and should not find, that the sentence is inadequate as a penalty in the criminal proceeding. It does not “second-guess” the sentencing Judge in that sense. The notion that this is so arises because of the simplistic generalisation already referred to the effect that the criminal sentence is regarded as “the punishment”, which is then seen to exclude the wider functions of exemplary damages identified above.

The diverse functions of exemplary damages and the essential differences between criminal and civil proceedings mean that the task of fixing the appropriate sentence in the criminal proceeding and the inquiry into exemplary damages in the civil proceeding is essentially a different exercise. Considerations relating to the rehabilitation of the offender, for example, may have influenced the sentencing Judge but not be pertinent to the claim for exemplary damages. The sentence imposed on the offender in the criminal proceeding may properly reflect the interests of the state, including having due regard to the suffering of the victim, in “punishing” him for his action. But that sentence may not adequately reflect the rights and interests of the victim in “punishing” her assailant for his flagrant conduct towards her or society’s interest in marking its disapproval of such conduct. Apart from the aspect of punishment and deterrence, objectives such as vindication, appeasement and the symbolic impact of an award as an expression of society’s condemnation of such conduct are pertinent.

In confronting the question whether exemplary damages should be awarded and, if so, the quantum of such damages, therefore, the civil court is not determining whether the sentence imposed on the offender is adequate to fit the crime. Rather, the criminal penalty is accepted as a matter of fact. What is required is that full regard be had to it in determining whether the function of exemplary damages merits a monetary award. The civil court may and, indeed, is likely to conclude that the penalty imposed in the criminal courts renders any award unnecessary. It may, on the other hand,

conclude that further punishment in the nature of punitive damages is appropriate to indicate and appease the victim and mark society’s condemnation of the conduct in question. The punitive civil sanction provided by tort law can coexist with the criminal sanction provided by the criminal law. What is important, as stressed by the Ontario Commission, is that the criteria for punishment and quantification be principled. In such circumstances, there is no injustice to the offender (supra, at p 45).

Finally, I consider that the steps which have been taken in more recent years to give greater prominence to the victim in the criminal process are not a sound basis for denying victims access to claims for exemplary damages. Certainly, the victim obtains far greater procedural and evidential protection in the course of a trial, and in the sentencing process the Court has access to victim impact statements, may order financial reparation (although such reparation is compensatory), or order payment of a fine to the victim. The Crown also has a right to appeal against a sentence which it considers inadequate. But these steps, which many still consider modest, fall far short of justifying a bar on civil proceedings for exemplary damages on the part of the victim. The fact these provisions may be designed to ensure that the aims of punishment and deterrence are met cannot mean that the victim’s rights and interests are at once discharged. It could be said that the “design” of the criminal justice process was to ensure that the aims of punishment and deterrence were met even when, in days gone by, the rights and interests of the victim were largely ignored. Today, the victim continues to be a third party, although a vital third party, in the prosecution of the offender by the state and to be subject to a trial process which favours the accused and frequently is an ordeal for her. If and when the offender is convicted, her interests are but tangentially before the Court on sentencing and liable to be submerged in a process which understandably tends to focus on the criminal and his circumstances.

While accepting that progress has been made, mainly by Parliament, it is my firm but respectful view that in the largely male dominated context of a criminal proceeding, recognition of the rights and interests of the victim has yet to reach maturity. The reality is that women still feel alienated and slighted by the criminal process, including sentencing. To claim that the progress made in accommodating the victims in the criminal process justifies a restriction on their rights is to wear blinkers in the dark.

8. The primacy of the criminal law?

Without question, the criminal law and process obtains primacy where a person’s conduct constitutes a criminal offence. The peace and good order of society demands as much. But, with respect, I cannot accept that this primacy should operate to the exclusion of the victim’s right to claim exemplary damages in respect of the same conduct, or conduct of which the offence is a part. There is, to my mind, no injustice to the defendant if the punishment imposed on him in the criminal court is properly taken into account in assessing exemplary damages. Nor can he validly complain if he has been acquitted of a crime, has not therefore been punished, and is no longer in jeopardy of being tried and convicted for that crime. If he has not been charged at all there is no jeopardy and no punishment. The exclusive primacy which is proposed for the criminal process is clearly exposed. Without this deemed primacy, there is no abuse of process. To my mind, such an approach is both extreme and inflexible.

Nor may it always be clear whether the criminal process should have such primacy as, for example, where the defendant’s offence is in the nature of a quasi- criminal or regulatory offence. To exempt those persons who are convicted or potentially liable to be convicted of such offences from claims in exemplary damages is a far-reaching restriction when so much of our social and economic life is subject to quasi-criminal or regulatory control. Again, cases may arise where the criminal process operates imperfectly or where the punishment imposed is inadequate, as has happened in Canada. Each case should be looked at having regard to the circumstances of the particular case. Only when that is done can it be said that in the circumstances of that case the criminal process should have primacy to the exclusion of any claim for exemplary damages.

A limitation on claims for exemplary damages falls most heavily on those victims where the accused is acquitted or never charged. Why should the criminal process enjoy primacy - in the sense of exclusivity - in these cases? The system may have failed or may not have been invoked at all. Effectively extending the bar to claims for exemplary damages to these situations is based on a narrow and inadequate view of the function of exemplary damages. In the result, criminal proceedings and proceedings claiming exemplary damages are perceived to be antipodal to the point that the criminal process must supplant the other. The fundamental objections which I have raised in this judgment all point to the fact that claims for exemplary damages can be properly regarded as supplementary to the criminal process.

The far-reaching nature of the proposal to confer such exclusivity on the criminal justice system is apparent when it is placed in context. Recognising that awards for exemplary damages serve a range of significant functions, the Courts of this country declined to follow the restricted scope for such damages adopted by the House of Lords in Rookes v Barnard. In Donselaar v Donselaar this Court roundly affirmed that the right to claim exemplary damages remained intact notwithstanding the enactment of the Accident Compensation Act. Yet, providing the criminal process with the primacy proposed by the majority will effectively reverse this position. Exemplary damages will be able to be claimed in proceedings for defamation (other than cases involving criminal libel or contempt of Court in relation to the same publication?) and in respect of the limited area of activity beyond the reach of the criminal or quasi-criminal process. The obvious area of activity fitting this latter description is conduct amounting to an abuse of public power - conduct of the kind contemplated by the House of Lords in Rookes v Barnard. Apart from awards of exemplary damages in proceedings for defamation, this country’s rejection of the narrow categories in Rookes v Barnard will have been effectively inverted without overt acknowledgement to that effect. Moreover, it will have been inverted at a time when the Law Commission for England and Wales is recommending a departure from the categories in Rookes v Barnard.

Declining to impose an absolute bar where the defendant has been convicted of a crime or any impediment where the defendant has been acquitted or not charged at all does not mean that claims for exemplary damages will get out of hand. By definition, such awards can only be made where the defendant’s conduct is flagrant. As indicated in the Law Commission’s Report, claims for exemplary damages will be applicable only where the conduct of the defendant towards the victim is deliberate and outrageous. The Courts will be able to keep a tight rein on claims for exemplary damages. (See Doneselaar v Donselaar (at 107)). Trial Judges will need to be satisfied that the case is a proper one for considering exemplary damages bearing in mind the kind of conduct which such damages are designed for, and not to lightly allow a claim to go to the jury. Where the defendant has been convicted and punished, the Court will need to scrutinise the acts relied on to justify an award of exemplary damages and ensure that the punishment already meted out is fairly taken into account. Where the defendant has been acquitted or no charge has been brought, the Courts will still have the ability to categorise a claim for exemplary damages as an abuse of process where some factor other than, or in addition to, the fact the defendant was acquitted or not been charged would warrant that course.

10. Closing comment

For the above reasons, I must respectfully decline to join the majority’s judgment. I would prefer the more cautious and less radical approach which I have outlined in this judgment. It accords with the prevalent position in Canada and the United States and the recommendations reached by the Ontariro Law Reform Commission and the Law Commission for England and Wales. It may well be that, if the case for imposing an absolute bar where the defendant has been convicted and, in particular, effectively creating a bar in respect of proceedings where the defendant has been acquitted or has not been prosecuted, has no greater appeal to others than it has to me, the recommendations and draft bill of the Law Commission for England and Wales could be worthy of legislative attention.

Solicitors

G A Campbell, Auckland, for Appellant Daniels Corban Revell, Auckland, for Respondent Thompson B A Gibson, Wellington, for Plaintiff J

Greig Davidson Gallagher, Wellington, for Defendant Bell Gillespie Young Watson, Lower Hutt, for Plaintiff W Hollings Partners, Paraparaumu, for Defendant W

Eagles & Eagles, Invercargill, for Appellant H

King Alofivae Malosi, Auckland, for Respondent P