Pickering v Attorney-General [2001] NZCA 37; [2001] 2 NZLR 324 (28 February 2001)

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA98/00

	BETWEEN	R J PICKERING
		Appellant

	AND	ATTORNEY-GENERAL
		Respondent

Hearing:	20 February 2001
Coram:	Tipping J McGechan J Salmon J
Appearances:	J A Hope for Appellant
	I C Carter and G A J Stanish for Respondent
Judgment:	28 February 2001

JUDGMENT OF THE COURT DELIVERED BY McGECHAN J

The Appeal

[1] This is an appeal against an order made in course of an application for a Writ of Arrest that Appellant file and serve affidavits in opposition by a stated time. Appellant seeks instead an order under Rule 249 accepting oral evidence from Appellant. It is not suggested the order as sealed compels Appellant to file affidavits. He retains the option of not giving or adducing evidence. Nor is there any complaint as to the time limit imposed. The question, quite simply, is whether he must, as directed, give any evidence by affidavit, or may instead give his evidence and call any other witnesses orally.

The Background

[2] Appellant is subject to injunctions issued in the High Court at Hamilton on 6 July 1998 prohibiting him inter alia from selling any unlicensed animal remedy contrary to s40(2) Animal Remedies Act 1967, and knowingly using any unlicensed animal remedy contrary to s40(5) of that Act. The injunctions which originally had a two year term have been extended and remain current. The Attorney-General alleges breach, and has filed an application for a Writ of Arrest pursuant to Rules 608 and 609 of the High Court Rules. The Attorney-General has encountered reluctance on the part of persons with whom it is alleged Appellant had dealings infringing the injunction to give evidence, and has obtained orders under Rule 509 that such persons appear as a preliminary to the hearing of the application for Writ of Arrest to be examined on oath. Evidence from those reluctant witnesses will be necessary to establish breach beyond reasonable doubt. The activities concerned, if proved, would constitute statutory offences but limitation times for laying informations have expired.
[3] The application for Writ of Arrest was under the procedural superintendence of Penlington J. On 19 April 2000 His Honour convened a procedural Conference, counsel for the Respondent attending by telephone with present counsel for Appellant attending in person. Plainly, counsel for Appellant made known Appellant’s desire to avoid filing affidavits in advance of substantive hearing. We were informed by counsel the question was not squarely put before Penlington J as an application under and in terms of Rule 249. His Honour made the following minute (relevant parts):

“I now propose to timetable the proceeding in respect of the pleadings and the evidence. Mr Hope cited Commerce Commission v NZ Milk Corporation Ltd [1994] 2 NZLR 730 732 per Eichelbaum CJ. Mr Hope submitted that the proceeding was in the nature of a criminal proceeding and that the defendant should not be required to disclose his evidence. I am unpersuaded by that argument and I do not consider that the passage cited to me supported this contention. I therefore intend to proceed on the basis that the defendant is required to file and serve his affidavits in opposition. I now establish the following timetable:

1. ...

2. Defendant to file and serve affidavits in opposition by the close of business on Wednesday, 31 May.”

The order recognised both Appellant and Respondent could give notices to cross-examine. There is no dispute that His Honour was acting under Rule 441 High Court Rules and within that exercising the power to give directions which might have been given on an application made under Rule 437.

Preliminary Question : Jurisdiction to Appeal

[4] The Respondent submits that on the approach taken by this Court in The Association of Dispensing Opticians of New Zealand Incorporated v The Opticians Board CA164/99, 9 September 1999 this was a timetable direction made as part of the trial management process, it was not a ruling which may substantially affect the “shape of the hearing”, nor a ruling having substantive effect on rights and liabilities, and as such is not subject to interlocutory appeal. We do not accept this submission. It is more than a question of simple timetabling. The question at heart is whether Appellant must give his evidence by affidavit prior to hearing, disclosing his hand, or can wait until conclusion of Respondent’s evidence at hearing, then deciding whether to give evidence at all, and if so, having the right to give evidence orally. This reality certainly bears substantially upon the shape of the hearing, and falls within s66 appeal rights.

Submissions for Appellant

[5] Submissions for Appellant as an opening position categorise the application for Writ of Arrest as a criminal proceeding. On that basis, it is submitted the minimum standards of criminal procedure in the New Zealand Bill of Rights Act 1990 (“Bill of Rights”) and prescribed by common law for persons charged with criminal offences apply. It is submitted the order at issue breached Appellant’s rights by infringing the right to a fair hearing, the right not to be compelled to be a witness or to confess guilt, the right to present a defence, and through conflicting with the common law right to silence. As a further submission it is argued the Judge failed properly to exercise his discretion under Rule 249, special circumstances existing in which justice required Appellant to be allowed to call oral evidence at hearing. As argument developed, counsel accepted that an application for Writ of Arrest may not be a criminal proceeding as such, but submitted it was of a character, given potential penalties, which exhibited aspects of criminal proceedings and required analogous treatment. In relation to Rule 249 it was accepted there were policy reasons for requiring disclosure of evidence prior to hearing, but the present was put as a case where given the interests at stake, the nature of the proceedings, and Appellant’s rights under the Bill of Rights and at common law, the appropriate exercise of discretion was in favour of oral evidence. We were referred to a range of authorities related to Acts imposing statutory penalties, and to pre-trial exchange of briefs, and a further range of authorities bearing upon analogies to criminal procedure. None focused directly upon the present issue, and we will dispense with citations except as appear later in this judgment.

Submissions for Respondent

[6] Respondent submits the application for leave to issue a Writ of Arrest is civil rather than criminal in nature. The timetable direction did not give rise to breach of the Bill of Rights. The Judge properly exercised his discretion under Rule 249 in not making an exception to the general rule that evidence on interlocutory applications is by affidavit, and by declining to accept oral evidence from the Appellant. It was accepted in course of argument that the Respondent must establish breach beyond reasonable doubt. No further protections were needed. No risk of self incrimination arises. The Appellant has the additional protection of the careful discretion which a Court will exercise before sanctioning imprisonment. While the Bill of Rights does not apply, the minimum rights which it confers had not been breached and are unlikely to be breached by the Court in the exercise of its civil jurisdiction. Counsel submitted that it had never been held that defendants in Writ of Arrest proceedings had the right to give evidence orally. It was feared such might furnish a precedent for other applications carrying something in the nature of penal consequences. There were no special circumstances within Rule 249 as a result of which justice requires that Appellant give evidence orally.

Decision

[7] We have no doubt the application for a Writ of Arrest is a civil proceeding. It is brought under the High Court Rules, which are confined to such. Equally, we have no doubt the direction Appellant give evidence by affidavit was an order made within that civil proceeding, and is of the same character.
[8] It is not necessary, and it is not necessarily helpful, to seek to categorise applications for Writ of Arrest as “substantially criminal” or “of a criminal nature”, or as a “hybrid”. This is a civil proceeding, but of a special and particularly serious kind. It threatens personal liberty. There is no graver threat.
[9] That special and serious character stands reflected in the rule, exceptional in a civil context, requiring proof beyond reasonable doubt. It should also stand reflected in the level of procedural protections afforded. In that area, while it is not essential it obviously is useful to look at protections afforded in the criminal field under the Bill of Rights and traditionally under common law. Those protections, also founded to a degree upon perceptions of what is appropriate given risks to liberty, may well furnish useful guidance. To that extent, they are relevant in Writ of Arrest proceedings. Rule 249 is to be approached with these considerations in mind.
[10] Rule 249 empowers (not obliges) the Court to accept oral evidence in “special circumstances, if justice so requires”. There is no definition of “special circumstances”. We consider the fact that the application is for a Writ of Arrest, carrying with it potential for deprivation of liberty, is a “special” circumstance. It has a potential virtually unique in a civil context. That special character gains added emphasis from the rarity of the procedure. It certainly is not commonplace. We consider, on the same basis, that “justice...requires” the Court to afford appropriate procedural protections. As noted, those can be drawn very appropriately by analogy with some protections afforded in the criminal field. One clearly appropriate analogy is the right not to give evidence (if evidence is to be given at all) until completion of the Respondent’s case. There should not be a requirement which could lead to filling gaps or repairing weaknesses.
[11] While the appeal is from a discretionary decision, the matter was not put to Penlington J squarely in terms of Rule 249 requirements, and nor was it so addressed. The application can and should be approached afresh.
[12] We have no doubt on that basis the direction to file affidavits should be quashed, with leave given under leave 249 to give and adduce evidence orally at conclusion of Respondent’s evidence.
[13] Any question whether the Respondent may then call evidence in rebuttal will be one for the discretion of the presiding Judge. If Appellant is given protections by analogy with the criminal law, he must accept qualifications upon those protections by like analogies.
[14] This case does have two unusual features. First, the heart of the Respondent’s own evidence will be oral, led under Rule 509. Second, in event Respondent proves the case signalled, Appellant does stand at real risk of imprisonment. Potentially it is a case where breaches are grave, and it is not a case where conduct which has occurred can be remedied while an order lies in Court. Both features enhance the need for the protection afforded, but we specifically record they are not central to the decision made. It rests on principle, and would not have differed in their absence.
[15] While in principle, it would seem that respondents to applications for Writs of Arrest generally should be granted leave under Rule 249 to give evidence orally, if desired, in the end it is a discretionary question and must depend upon particular circumstances. We do not exclude the possibility of exceptional situations. The reality of the risk of imprisonment, so far as a Judge can assess it in advance, may well have some bearing.
[16] While there is no authority directly in point, we were referred to two cases worth noting for their indirect relevance.
[17] In Videotron Ltee v Industries Microlec (1992) 96 DLR 4376 SCC, the majority of the Supreme Court of Canada per Gonthier J 401-2 ruled that a Respondent cited for contempt was not a compellable witness. That decision was reached inter alia on the basis of common law and of consistency with the Charter protection against self-incrimination. Arguments this increased the difficulty of proving contempt and maintaining long-term respect for orders of the Court received short shrift:

“Furthermore, because of the public law aspects of contempt of Court, particularly that of imprisonment, it must be subject to certain rules of fundamental justice, even if its effectiveness might thereby be reduced.” (ibid 401).

Counsel for Appellant also referred to the invocation by Ellis J of natural justice requirements in criminal procedure contained in the Bill of Rights by analogy into professional disciplinary proceedings in Staite v Psychologists Board (1998) NZAR 128, 131. This may well exemplify a predictable progression by analogy which, within proper bounds, is entirely appropriate.

Order

[18] The appeal is allowed. Order No. 2 that Appellant file and serve affidavits is quashed. Order No. 4 as to affidavits in reply and Order No. 5 as to notice to cross-examine are quashed in consequence. Appellant is granted leave under Rule 249 to give and adduce oral evidence at the hearing of the application for Writ of Arrest.

Costs

[19] The Appellant will have costs on the appeal of $1500 together with reasonable disbursements as fixed by the Registrar including travel and any accommodation expenses of counsel.

Solicitors
Till Henderson King, Hamilton, for Appellant
Crown Law Office, Wellington, for Respondent