Reekie v Attorney-General (on behalf of the Department of Corrections) and Gentry [2009] NZCA 598 (15 December 2009)

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Reekie v Attorney-General (on behalf of the Department of Corrections) and Gentry [2009] NZCA 598 (15 December 2009)

Last Updated: 23 December 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA132/2009

[2009] NZCA 598

BETWEEN NICHOLAS PAUL ALFRED REEKIE
Applicant

AND THE ATTORNEY-GENERAL (ON BEHALF OF THE DEPARTMENT OF CORRECTIONS)
First Respondent

AND MATTHEW GENTRY
Second Respondent

Hearing: 1 December 2009

Court: William Young P, Chambers and Ellen France JJ

Counsel: Applicant in person
F J Sinclair for First Respondent
C L Garvey for Second Respondent

Judgment: 15 December 2009 at 4 pm

JUDGMENT OF THE COURT

The applications for an extension of time for appealing and for leave to adduce further evidence are dismissed. The proposed appeal therefore cannot proceed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1] On 15 May 2001 a blood sample was taken from the applicant by Dr Matthew Gentry. This was pursuant to a databank compulsion order made by Judge Russell Johnson on 6 April 2001. The applicant had opposed the making of the order and when the time came for the blood sample to be taken, he refused to cooperate. The upshot was that Constable Taylor and officers of the Department of Corrections used physical force to facilitate the taking of blood. Because of the applicant’s non-cooperation, Dr Gentry took the required blood sample by means of two finger pricks.
[2] In the decision now challenged, Andrews J dismissed claims by the applicant against the Attorney-General, sued on behalf of the Department of Corrections, for assault and under ss 21 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA), and also a claim against Dr Gentry for assault. She concluded that all claims were subject to s 4(7) of the Limitation Act 1950 (being in relation to bodily injury to a person) and were thus required to have been brought within two years of when the cause of action accrued. Further, she found that although the proceedings had been brought within the six year absolute limitation period, she did not have jurisdiction to extend time under the proviso to s 4(7) because the application for such extension was made more than six years after the alleged cause of action arose. She also held that the force which was used was justified under s 54(2) of the Criminal Investigations (Bodily Samples) Act 1995 and that the corrections officers and Dr Gentry had immunity from civil and criminal actions under s 79 of that Act.
[3] The judgment of Andrews J was delivered on 22 December 2008. On 16 January 2009 the applicant filed in the High Court what purported to be an application for leave to appeal. On 2 March 2009 Andrews J issued a minute noting that leave from the High Court was not required. The applicant’s notice was forwarded to the registry of this Court which treated the appeal as having been filed on 11 March 2009. As such, the appeal is out of time and an extension of time is required. The applicant also wishes to adduce new evidence on appeal.
[4] Therefore formally before the Court are applications for an extension of time and leave to adduce further evidence.
[5] For reasons which will become apparent, we will address those issues in reverse order.

The application to adduce further evidence

[6] The new evidence which the applicant wishes to adduce relates to a contention which he did not advance at trial. This is to the effect that when the causes of action accrued (ie on 15 May 2001) he was under a disability for the purposes of s 24 of the Limitation Act. If this is so, the limitation period would not have started to run until he ceased to be under a disability.
[7] We recognise that the applicant was not legally represented at trial. He had, however, been legally represented up until not long before trial. The statement of claim on which he went to trial was professionally prepared. In this context we see no basis upon which we could, in fairness to the respondents, permit the applicant to run his case on appeal on a basis which was not advanced at trial.
[8] In those circumstances, we decline leave to adduce further evidence.

The application to extend time for appealling

[9] Although the applicant’s reason for not appealing in time is understandable (in that he filed the appeal in the wrong Court) the fact that he requires an extension of time means that his ability to continue with this appeal is subject to the discretion of this Court which must be exercised by reference not only to the reasons for delay but also as to whether the proposed appeal is arguable: State Insurance Ltd v Brooker (2001) 15 PRNZ 493 (CA).
[10] In the case of Dr Gentry, our refusal to permit further evidence to be called means that Dr Gentry has a cast iron Limitation Act defence. We note in passing that the applicant sought to invoke s 28 of the Limitation Act (which addresses postponement of the limitation period in cases of fraud or mistake) but this section is plainly not applicable. So the appeal in relation to Dr Gentry has no prospects of success at all.
[11] The same is true of the appeal against the Attorney-General in relation to the assault cause of action.
[12] Counsel for the Attorney-General, however, was inclined to accept that there is a genuine legal issue as to whether the Limitation Act applies to claims for NZBORA compensation. This is no doubt so. But the fact that the case gives rise to what is a potentially interesting point of law does not warrant the exercise of the discretion to extend time.
[13] In this case there are a number of considerations which point strongly away from a favourable exercise for discretion:

• (a) In substance the case is about an alleged assault in a context where a direct claim for damages for assault is barred by the Limitation Act. That is at best an inauspicious context for a claim for relief under NZBORA.
• (b) The applicant’s primary challenge to what happened is on the basis that the corrections officers involved were not entitled to use force in relation to the obtaining of a blood sample. But we can see no arguable basis for challenging the Judge’s conclusions that they were entitled to do so. Constable Taylor was entitled to use reasonable force or to cause reasonable force to be used under s 54(2) of the Criminal Investigations (Blood Samples) Act as it stood in 2001. We consider that this encompassed seeking assistance from corrections officers who were on hand. It is important to note that the immunity from civil and criminal proceedings provided by s 79 of that Act is not confined to medical practitioners, nurses and police officers. In any event, there is also s 8 of the Penal Institutions Act 1954, which was in force when the blood sample was taken in 2001 and gave the corrections officers all of the powers, authority, protection and privileges of a constable. So the applicant’s primary complaint is legally unsustainable.
• (c) We accept that there is scope for argument whether the hand-cuffing of the applicant prior to Constable Taylor formally requesting assistance from the corrections officer was, as Andrews J held, physical force authorised pursuant to s 17C(1)(b)(iii) of the Penal Institutions Act by reference to the applicant’s “active or passive resistance to a lawful order”. The applicant says that a “lawful order” for these purposes must be an order as contemplated under the Penal Institutions Act and does not extend to a request that he comply with a blood compulsion order. This may, conceivably, be so but, to the extent to which the hand-cuffing involved an assault, the claim is out of time under the Limitation Act and this aspect of the incident is too trivial and inconsequential in the scheme of what happened on 15 May 2001 to warrant compensation or any relief under NZBORA.
• (d) As to the taking of the blood sample, the applicant faces unequivocal and clear findings that the force used was necessary and reasonable. We can see no realistic prospect that these findings of fact will be able to be successfully challenged. The reality is that the applicant’s behaviour on 15 May 2001 was entirely unreasonable and rendered the application of force inevitable.
• (e) The whole case is extraordinarily trivial. It is effectively about two pin pricks. All that happened was what could fairly be expected when a prisoner refuses to comply with a court order as to the taking of a blood sample.
• (f) In this context we consider that the proposed appeal is insufficiently meritorious to warrant an extension of time.

Disposition

[14] The applications for an extension of time and for leave to adduce further evidence are dismissed. The proposed appeal cannot therefore proceed.

Solicitors:
Crown Law Office for First Respondent
Whaley & Garnett, Auckland for Second Respondent