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Court of Appeal of New Zealand |
Last Updated: 21 December 2016
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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First Respondent
THE ATTORNEY-GENERAL
Second Respondent |
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Hearing: |
10 November 2016 |
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Court: |
Randerson, Duffy and Whata JJ |
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Counsel: |
Appellant in person
N M H Whittington and B J Thompson for Second Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
[1] Mr Wright was unlawfully arrested, detained and charged for refusing to give his particulars when stopped by the police. Hinton J found the arresting officer, Constable Bhosale, and the Attorney General were liable for battery, false imprisonment and breach of s 24 of the New Zealand Bill of Rights Act (BORA).[1] Compensatory damages of $14,000 were awarded. But the Judge refused to make declarations of breach of ss 21 and 23 and dismissed Mr Wright’s claim to exemplary damages. Mr Wright appeals against the refusal to make the desired declarations pursuant to ss 21, 23 and 24 of the BORA, and the refusal to award exemplary damages.
[2] The issues raised by the appeal are noted at [11].
Background
[3] The following facts are drawn from the High Court judgment, there being no dispute about this part of the narrative. In the early morning of 3 May 2013, Constable Bhosale and Constable Bunce were patrolling along Karangahape Road. They stopped a vehicle. Mr Wright was one of the passengers. He is legally trained and knew his rights. Constable Bhosale asked Mr Wright for some form of identification. Mr Wright refused to provide the requested details. Constable Bhosale referred to s 114 of the Land Transport Act 1998 (LTA). Mr Wright stepped out of the car and started to walk away. Constable Bhosale placed an arm out in front of Mr Wright. Mr Wright pushed past. He was arrested for refusing to provide his name and details, handcuffed and searched. He was then taken to the Auckland Central Police Station.
[4] While at the Custody Unit of the police station, Mr Wright was provided with a Notice to Person in Custody document, which advised him that he was being held in legal custody for “B109 — Failed to give name and address on demand”. Mr Wright made a full statement about the circumstances of the arrest and stated s 114 did not apply. He asked the processing officer to look up s 114. The officer did not do this and said he had no jurisdiction over the charge. Constable Bhosale prepared and attempted to hand a copy of the Traffic Offence Notice to Mr Wright, who refused to accept it.
[5] Constable Bhosale took the Custody Charge Sheet and Custody Summary to the Custody Sergeant, Sergeant Field, who approved the charge. Mr Wright was charged and then bailed. The bail bond form also recorded the charge as “1. B109 — Failed to give name and address on demand”. Mr Wright initially refused to sign the form. He was released having spent about two and a half hours in custody.
[6] Mr Wright appeared in the District Court on 9 May 2013. Mr Wright was advised that he was charged under ss 52 and 113 of the LTA. He was also provided with initial disclosure containing the Information, the Caption Summary, sections of Constable Bhosale’s notebook, his criminal history and the relevant sections of Constable Bunce’s notebook.
[7] Mr Wright emailed Constable Bhosale on 9 and 25 May and 18 June 2013, seeking full disclosure and information as to which of the statutory provisions listed in s 113 applied to him. Constable Bhosale responded on 19 June, attaching the previously disclosed material and asking him to contact the Criminal Justice Support Unit. Unsatisfied, Mr Wright applied to the District Court for disclosure on 1 July. The application was considered on 4 September. At this point the prosecutor conceded that the police had no lawful jurisdiction to require Mr Wright to supply his name and the charge was dismissed.
The claim in the High Court
[8] Mr Wright pleaded:
- (a) Battery and assault;
- (b) False imprisonment;
- (c) Wrongful arrest;
(d) Breach of s 21 of the BORA (right to be free from unreasonable search and seizure) for demanding or asking particulars of identity;[2]
(e) Breach of s 23 of the BORA (rights of persons arrested or detained) for failure to check the legality of the charge before charging Mr Wright; and
(f) Breach of s 24 of the BORA (rights of person charged) for failure to provide details regarding the charge.
[9] The respondents admitted the claims based on battery, false imprisonment and wrongful arrest.
Key findings
[10] We canvass below relevant aspects of Hinton J’s judgment in relation to each of the issues raised by the appeal. For present purposes, it is sufficient to simply note the Judge made the following declarations, findings and damages order:[3]
[158] I make the following declarations:
(a) When Constable Bhosale seized Mr Wright's hand, handcuffed him and searched him, that constituted a battery.
(b) Constable Bhosale had no legal authority to direct Mr Wright to produce identification or provide his name and address.
(c) Constable Bhosale was acting outside his statutory powers when he arrested Mr Wright for failing to provide his name and address on demand and as a result the arrest was unlawful.
(d) Mr Wright was falsely imprisoned from when he was arrested and handcuffed until he was released on bail. This was a breach of ss 18 and 22 of BORA.
(e) The information provided to Mr Wright regarding the basis of the charge against him at the time he was bailed, and up until 9 May 2013, was a breach of s 24(a) of BORA.
[159] I have also come to the following conclusions:
(a) Constable Bhosale's request for particulars did not constitute an unlawful search pursuant to s 21 of BORA.
(b) Mr Wright did not have a lawful right, prior to being charged with an offence, to have the circumstances and legality of his arrest reviewed and considered by an officer with delegated power to determine whether a reasonable prima facie basis existed to support the charge.
(c) In deciding to charge Mr Wright, the police did not breach his rights under s 23(2) of BORA.
[160] The defendants are to pay general damages in the sum of $14,000. No award is made of exemplary damages.
Appeal grounds
[11] With the benefit of argument, the appeal raises the following key issues:[4]
- (a) Was the Judge wrong to find Constable Bhosale did not act in bad faith, intentionally or recklessly?
- (b) What is the proper scope of s 23 of the BORA — were the police obliged to have the facts checked against the LTA by a senior officer prior to charging Mr Wright?
- (c) Was the information provided to Mr Wright at his first court appearance on 9 May 2013 sufficient to inform him of the nature and cause of the charge against him for the purpose of s 24(a) of the BORA?
- (d) Did the police possess lawful authority to “ask” questions about Mr Wright’s identity?
- (e) Did the request for particulars about Mr Wright’s identity amount to unreasonable search pursuant to s 21 of the BORA?
- (f) Is it necessary to prove intention to do wrong or subjective recklessness in order to obtain exemplary damages?
[12] We turn now to address them.
Was the judge wrong to find that Constable Bhosale did not act in bad faith, intentionally or recklessly?
[13] Hinton J found:[5]
[146] The torts were not committed intentionally. I am satisfied that Constable Bhosale was operating under a mistake. I formed the view of all of the police witnesses that they were genuinely trying to do their job as well as possible. In particular, Constable Bhosale came across as an earnest, conscientious young officer who was under a grave misapprehension in this instance. I do not consider there was any bad faith whatsoever on his part. I accept his account of what happened at the police station and I accept that he remained unaware of his error. Past the point of what happened at the police station, matters were out of Constable Bhosale's hands. I consider it unreasonable of Mr Wright to communicate by email with Constable Bhosale beyond that. Mr Wright should have known perfectly well to liaise with the prosecution team and was specifically asked to do so in the initial disclosure provided to him on 9 May 2013. There was a series of completely unacceptable errors on the part of the police but I draw the line at any finding of intentional committing of a tort or subjective recklessness.
[14] Mr Wright referred to passages in the evidence said to show an irreconcilable difference between the evidence of Constable Bhosale and Sergeant Field on what was said to support the charge laid against Mr Wright. Mr Wright submits the only available inference to be drawn is that Constable Bhosale lied about what he told Sergeant Field, and there was never any consideration given to whether the charge could be properly laid.
Assessment
[15] We do not accept this submission. The relevant parts of the evidence relied upon by Mr Wright do not reveal the claimed irreconcilable difference and fall well short of showing that Constable Bhosale lied about what happened.
[16] Constable Bhosale said this when Mr Wright cross-examined him about what he told the Sergeant about the facts underpinning the charge:
- What information did you give to Sergeant Field about what the lawful basis for your demand was?
- I gave him a basic rundown of how we got here, so basically referring to my notebook, “Stopped a person in a car, he is a passenger, refused details, still don’t know, you know, still don’t know who he is until we got here and he’s given a name now,” so that was sort of just a basic rundown from my notebook. That’s generally what I cover off with the custody sergeant.
- Okay, so I mean, I guess the critical points there, just to be clear, you told him I was a passenger and you told him that I’d given my details now, he knew those things?
A. (no audible answer 12:05:29).
Q. Did you check the legislation?
A. No.
Q. You didn’t check the legislation?
A. No.
Q. Did he check the legislation?
A. I don’t know, I don’t know.
Q. Well, not while you were there, anyway?
A. No.
A. No.
A. Yeah, that’s correct.
[17] Sergeant Field could not recall what was said, but gave the following evidence as to what he would have done had Constable Bhosale told him about the full facts of the alleged offending:
- Yes, and you have no recollection that he told you that there was no other wrongdoing involved?
A. No, got no recollection of that at all.
A. I am familiar with it.
Q. So you knew what they said?
A. I know what 114 is and 113.
Q. Yes, and you know that 114 only applies to drivers?
A. Yes.
A. Yes.
A. I don’t recall what Officer Bhosale said to me.
A. Yes.
A. Yes.
Q. So if he had told you that you would have flagged a concern?
A. Yes.
[18] It will be seen that the two sets of evidence are not coextensive. The questions put to Sergeant Field refer to ss 113 and 114. Relevant evidence given by Constable Bhosale does not mention those sections. In addition, the Sergeant’s evidence is hypothetical; based on what he usually does, not what he did. That does not provide a strong basis for a finding of irreconcilable inconsistency. Furthermore, Hinton J was much better placed to assess the significance of this evidence for the purpose of assessing Constable Bhosale’s credibility and, in particular, whether he lied. We are not prepared to second-guess her assessment on the evidence available to us.
[19] We are also satisfied that the evidence does not show that any of the officers specifically turned their minds to the legality of the charge and whether it ran the risk that there was no proper basis for it. Constable Bhosale was not shaken on this aspect in cross-examination and the evidence as a whole suggests that the officers simply assumed, without more, that Mr Wright’s refusal to answer questions was amenable to the charge laid.
[20] Accordingly, we agree with the Judge on the issue of bad faith, intention and recklessness.
What is the proper scope of s 23 of the BORA?
[21] Relevantly, s 23 of the BORA states:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
(a) shall be informed at the time of the arrest or detention of the reason for it; and
(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.
(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.
(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
...
[22] Hinton J concluded:[6]
[71] In my view, s 23(2) provides a temporal right. It does not provide for processes that the police must carry out in deciding whether or not to lay any charge. The subsection does not give Mr Wright a lawful right to have the circumstances and legality of his arrest reviewed or considered in a particular way, to determine whether the facts support a charge.
...
[73] This is not to say that the review process is not important. The police have an established procedure to ensure “good charging decisions are made”[.]77 Police Intranet chapter on charging decisions. A decision to charge can be checked by a supervisor. Finally, the decision to prosecute will be independently reviewed by police prosecutors who have the discretion to amend, withdraw and to file additional charges[.]88 This process is provided in the relevant police manual. In this case, Mr Wright’s arrest and the question of whether to lay a charge were reviewed by Sergeant Field. The fact that the error in the arrest/charge was not picked up (despite the review procedure being followed and regardless of who was at fault) does not constitute a breach of s 23(2).
[74] I therefore conclude:
(a) Mr Wright did not have a lawful right, prior to being charged with an offence, to have the circumstances and legality of his arrest reviewed and considered by an officer with delegated power to determine whether a reasonable prima facie basis existed to support the charge.
(b) In deciding to charge Mr Wright, the police did not breach his rights under s 23(2) of BORA.
[23] Mr Wright contends:
- (a) Every detainee has a right to be released if there is no proper basis to charge him or her.
- (b) Section 23(2) therefore envisages a statutory discretion to charge or release, which must be exercised in each and every case of arrest.
- (c) The exercise of this discretion must be made lawfully.
- (d) Independent review of the arrest by supervising officers is a mandatory requirement of the police charging procedure manual and the Solicitor-General’s prosecution guidelines.
- (e) The review by a supervising officer is an important check on error and abuse of police power.
- (f) The parlous failure of the police to follow their own processes and the Solicitor-General’s guidelines led to an erroneous charge being laid and is a matter of public concern.
- (g) There should be a declaration of breach of s 23(2) for failing to check the facts against the provisions of the LTA and an award of exemplary damages to send a clear message to the police.
[24] Mr Whittington responds, in short, the Judge was right: s 23(2) imposes a temporal right to be charged promptly or released. There is no mandatory obligation to follow a particular procedure. In any event, Constable Bhosale and Sergeant Field followed the procedure, but the error made by Constable Bhosale was not picked up by the Sergeant.
Assessment
[25] We agree with Hinton J that the right to be charged promptly or released affirmed by s 23(2) is essentially a temporal right. As stated by this Court in R v Rogers:[9]
In R v Te Kira [1993] 3 NZLR 257; (1993) 1 HRNZ 230, it was pointed out that s 23 is designed to ensure that an arrested person is not held in custody at the will of the police, but is entitled either to be released or to be brought before a Court; for it is the Court that is the proper authority to decide whether there is to be continuing custody. The section uses four different expressions to convey a sense of urgency and the need for expedition at each step. Subsection (1) speaks in para (a) of “at the time”; and in paras (b) and (c) of “without delay”; subs (2) has the word “promptly”; and subs (3) the phrase “as soon as possible”. We doubt the value of attempting to differentiate between the last three. The right to be charged promptly or to be released, whether without charge or on police bail following charge, is one aspect of a process that is to be completed “as soon as possible”.
[26] We also agree with Hinton J that s 23(2) does not impose a mandatory obligation to have the facts of the charge checked by a supervising officer against the applicable legislation in every case. There is no express provision for it and the courts are traditionally reluctant, for constitutional and policy reasons, to interfere in prosecutorial decision making.[10] Despite these constraints, there are two remedies available to a person who considers he or she has been wrongly charged. The first and most effective remedy is to defend the charge and, if necessary, to apply to have it dismissed. The second is the availability of judicial review, though we accept there may be substantial hurdles to relief in this context.[11] It is also not clear to us that a mandatory obligation of legislative review is necessary to maintain the efficacy of the right to be “promptly” charged or released, bearing in mind also the statutory right to consult a lawyer and to be brought before a court as soon as possible.
[27] While these processes did not immediately assist Mr Wright in this case, these express statutory measures militate against the prospect of egregious police error. Furthermore, the cumulative effect of mandatory legislative review by superior officers on the time taken to process detainees could be very significant, a prospect which is discordant with the clear legislative policy of urgency.
[28] In any event, whatever the underlying procedural requirements, the temporal right affirmed by s 23 was not breached in any meaningful sense in this case. Largely for the reasons expressed by the Judge, the decision to charge was not arbitrary, intentional (in the sense of knowingly without lawful basis), reckless or made in bad faith. Rather, Constable Bhosale misinterpreted the law and the review by the Sergeant failed to pick up this error. Had the Sergeant checked the LTA, he may well have directed Mr Wright to be released without charge. But the decision to charge did not, in any event, unduly prolong Mr Wright’s time in custody, if at all. In the result, Mr Wright was released promptly, as expressly required by s 23.
Was there a breach of s 24(a) of the BORA for failing to provide sufficient detail as to the basis for the charge?
[29] Section 24(a) of the BORA states:
24 Rights of persons charged
Everyone who is charged with an offence—
(a) shall be informed promptly and in detail of the nature and cause of the charge;
...
[30] Hinton J observed:[12]
[80] Leading commentators on the Bill of Rights state that the purpose of s 24(a) is to ensure that a person charged with an offence is informed in a timely manner of what he or she is charged with and why.[13] Section 24(a) mirrors the now repealed s 17 of the Summary Proceedings Act 1957 and s 329 of the Crimes Act 1961. Under those two provisions, the law required the charging document to contain “particulars sufficient to alert a defendant as to the exact offence charged and the transaction upon which it is based”.[14]
...
[86] In the circumstances of this case, I consider s 24(a) to have been breached. As Goddard J noted in R v Gibbons, the level of detail needed to satisfy s 24(a) varies from case to case. For some types of offending, a person charged may be adequately informed in detail of the nature and cause of the charge without reference to a specific legislative provision. However, in Mr Wright's case, the Custody Charge Sheet and the Police Bail Bond form that disclosed “B109 failed to give name and address on demand” were insufficient to inform Mr Wright in detail of the nature and cause of the charge. The “cause” of the charge is clear but Mr Wright is left in the dark regarding why the failure to give his name and address was an offence. The information disclosed did not inform him why he was charged. It is my understanding that Mr Wright was not told of s 52(1)(c) or any other section at the police station. I do not consider the police can rely on the oral reference to s 114 made by Constable Bhosale during the arrest.
...
[88] The right under s 24(a) did not cease to apply when Mr Wright left the police station. On 9 May 2013, an information sheet and summary of facts were provided to Mr Wright. Both documents referred only to s 52(1)(c) LTA and not ss 113 or 114. Section 52(1)(c) is not sufficient on its own to disclose the nature of the charge. However, it seems that Mr Wright was informed by the police prosecutor that the charge relied on s 113. I consider that was then sufficient to inform Mr Wright in detail of the nature and cause of the charge. The fact that the details of the charge were wrong is not relevant to s 24(a). At least Mr Wright then knew what he was facing. I therefore consider that s 24(a) was breached up until 9 May 2013.
[31] Mr Wright submits Hinton J correctly found breach of this section, but erred in finding that the breach ended when the police prosecutor disclosed the basis for the charge was s 113 of the LTA. He submits this disclosure did not, in fact, reveal a clear basis for the charge and left him in the dark about the particulars of the alleged offending.
[32] Mr Whittington responded that the police provided Mr Wright with all the information that there was to provide. The facts were set out in the caption summary and there was nothing further to add.
Assessment
[33] In agreement with Hinton J we consider the police discharged their obligation under s 24(a) on the disclosure by the prosecutor that the basis for the charge was s 113 of the LTA in combination with the caption summary.
[34] Mr Wright was charged under s 52(1)(c) of the LTA. This makes it an offence to fail or refuse to comply with any “lawful requirement, direction, notice, request, or prohibition given to or imposed on him or her under this Act by an enforcement officer”. Section 113 of the LTA relevantly states:
131 Enforcement officers may enforce transport legislation
(1) An enforcement officer in uniform or in possession of a warrant or other evidence of his or her authority as an enforcement officer may enforce the provisions of—
(a) the Local Government Act 1974, the Local Government Act 2002, the Road User Charges Act 2012, the Government Roading Powers Act 1989, the Railways Act 2005, the Land Transport Management Act 2003, and this Act:
(b) regulations and rules and bylaws in force under any Acts mentioned in paragraph (a).
(2) Without limiting any other powers conferred on an enforcement officer, an enforcement officer, in enforcing any provisions referred to in subsection (1), may at any time—
(a) direct a person on a road (whether or not in charge of a vehicle) to give the person’s full name, full address, date of birth, occupation, and telephone number, or such of those particulars as the enforcement officer may specify, and give any other particulars required as to the person’s identity, and (unless the person is for the time being detained or under arrest under any enactment) give such information as is within the person’s knowledge and as may lead to the identification of the driver or person in charge of a vehicle:
...
[35] The caption summary records:
CHARGE Failed to give name and address on demand
LAND TRANSPORT ACT 1998 SECTION 52(1)(C)
Fine: $10000.00
At about 1:16am on the 3rd of May 2013, the Defendant WRIGHT was a passenger in a Saab motor vehicle, registration number ENU132 on Karangahape Rd, Auckland City.
The vehicle was stopped for an unrelated traffic matter.
Constable BHOSALE requested several times, that the Defendant supply his details including his name and address. The Defendant refused to provide his details stating “I don’t have to, I have the system and I am free man”.
The Defendant was warned of arrest but he refused to provide his name and address. The Defendant was warned again and subsequently arrested.
The Defendant admitted to the facts outlined above and in explanation stated “I am not a slave to the system”.
The Defendant has previously appeared before the Court.
[36] The summary clearly stated that the vehicle was “stopped for an unrelated traffic matter”. As Mr Wright knew, this disclosure revealed there was no lawful basis for the charge and it could be defended as such. That was his position all along and the primary basis for his claims in tort and for breach of s 21 (unreasonable search and seizure). His residual complaint that there may have been some undisclosed offence captured by s 113 (for example, not wearing a seatbelt) has no merit. If there had been any such matter, it would have been in the summary and/or in Constable Bhosale’s notebook. It was not.
Did the police possess lawful authority to “ask” questions about Mr Wright’s identity?
[37] Mr Wright submits the Judge was wrong to express her declaration in [158](b) of the judgment as a lack of authority to “direct” him to provide identification or provide his name and address.[15] Rather, the declaration should have referred to the lack of authority to “ask” for such information.
[38] Hinton J observed:[16]
[46] It is accepted by Constable Bhosale and the Crown in this case, that the Constable did “direct” Mr Wright to provide identification and that, or “demand”, is the language used in the relevant sections. I consider it appropriate to limit the declaration to dealing with the officer having no authority to direct. The question of whether the broader proposition is correct, can wait on a ruling if and when it arises.
[47] I add that I would consider it unwise practice on the part of the police to “ask” a passenger in Mr Wright's circumstances for identification, as the public would tend to view a request from the police in such circumstances as stemming from an entitlement. I note, as a matter of general law, that “a law enforcement officer is entitled to ask questions relating to the citizen’s identity and otherwise, but the citizen is perfectly entitled to refuse to give the information”.[17] That was in the context of the right to silence. Whether that applies in the present context can await a case where it is relevant. In my view, declaratory relief should be limited to that reasonably necessary for the case at hand and not stray into broader propositions.
[48] I consider the declarations referred to by the Crown to be appropriate.
[39] Mr Wright submits Constable Bhosale was purporting to exercise police powers under s 113 of the LTA at the time he sought details of Mr Wright’s identity, but Constable Bhosale was not enforcing any specified LTA functions at the time. Rather the Constable was simply running a query check upon them to investigate whether any of them were a person of interest. Constable Bhosale’s evidence was that he had asked for identification from passengers hundreds of times. Mr Wright says this conduct was an unauthorised intrusion into privacy and unlawful.
[40] Mr Whittington concedes Constable Bhosale was acting outside the bounds of his statutory powers and he had no legal authority for what he did. His questioning was in the nature of a demand based on a mistaken belief in his powers under the LTA. There is no need to explore whether “asking” is unlawful, because this is not a case about “asking” questions.
Assessment
[41] We agree with Mr Whittington that this is not an appropriate case to resolve whether the “asking” of a question by a police officer is unlawful, for the following reasons:
- (a) The Crown concedes Constable Bhosale unlawfully demanded identification particulars from Mr Wright, so we are being invited to make a declaration on an alternative hypothetical, namely that Constable Bhosale asked, not demanded the answers. Declaratory procedures are ill-suited to hypothetical adjudication,[18] and particular care is needed when considering fundamental rights issues.[19]
- (b) Mr Wright pleaded that Constable Bhosale “demanded that all passengers, including the plaintiff, show him a form of identification” and sought a declaration on the following question: “Did the first defendant have a reasonable, lawful and justifiable basis to demand the plaintiff to provide further particulars?” It is therefore not necessary on the pleadings to address whether “asking” questions is unlawful.
- (c) The alleged infringement of Mr Wright’s privacy rights can be fully vindicated without engagement on the hypothetical “asking” scenario in the form of the declaration made by the judge.
- (d) As Mr Whittington observed in his submissions, it is questionable whether the uses of the terms “ask” or “demand” makes any difference in practice given the perceived mana of police officers.
Did the request for identifying particulars amount to an unreasonable search?
[42] Hinton J concluded the request for particulars of identity was not a search and seizure for the purposes of s 21 of the BORA:[20]
[61] I am persuaded by the Crown’s submission that the request for particulars was not a search. Tipping J in Hamed referred to “search” in its ordinary sense as “consciously looking for something or somebody”.[21] Blanchard J referred to the idea of an “examination or investigation or scrutiny in order to expose or uncover.”[22] Clearly, some positive act of “searching” is required. I consider that merely requesting identification to be provided does not constitute a search for the purpose of s 21.
[43] Mr Wright contends the police questioning in this case amounts to unreasonable search and seizure, because the request for identification at a traffic stop without lawful authority was an illegitimate interference with his reasonable expectation of privacy, the protection of which is the legislative basis for s 21 of the BORA.[23] He cites various Canadian authorities said to affirm that questioning by a police officer constitutes an intrusion into privacy and if unlawful breaches the equivalent of our s 21 right. He says all of these arguments and authorities point to the same conclusion:
In the absence of statutory justification, or informed consent, a citizen holds a reasonable expectation of non-interference at the hands of the State, that they will be permitted to go about their lawful business unhindered. That they will not be required, without lawful justification, to divulge personal information.
[44] Mr Whittington submits that a request for information was not a search, as it does not involve an examination of a person or property[24] or an invasion into a reasonable expectation of privacy.[25] He also contends that the authorities cited by Mr Wright are not apposite, particularly as in most of the cases personal information was obtained by the police (whereas Mr Wright had refused Constable Bhosale’s request).
Assessment
[45] Whether the conduct of the police constitutes a search is a fact-specific inquiry.[26] The commonly accepted touchstone for s 21 of the BORA is the protection of a reasonable expectation of privacy.[27] A search must usually involve state intrusion into that expectation.[28] In many cases, the fact of a search will be reasonably obvious, that is, involving physical acts of prying into hidden places.[29] But there will be cases where a non-physical intrusion qualifies, for example, surveillance of private spaces.[30]
[46] The overseas authorities cited by Mr Wright suggest that questioning may, in certain circumstances, amount to an unacceptable intrusion into privacy. In R v Pinto Hill J in the Ontario Superior Court of Justice observed that an unauthorised request for identification documentation from a vehicle passenger amounts to a search or seizure within the meaning of s 8 of the Charter.[31] Section 8 is the Canadian equivalent of the s 21 right to be free from unreasonable search and seizure. Bell J, citing various authorities, held in Director of Public Prosecutions v Kaba:[32]
His Honour correctly determined that police exceeded their common law powers and breached Mr Kaba’s human rights under the Charter (and the ICCPR) by subjecting him to coercive questioning for his name and address.
[47] But these comments must be viewed in context. Both Courts were dealing with the admissibility of evidence of wrongdoing by a defendant following on from coercive questioning. They were not directed to resolving whether the questioning per se amounted to an actionable “search” in a civil case. In the Canadian case of Pinto, for example, the trial judge dismissed assault and weapons charges in circumstances where:[33]
... a detained person who should not have been asked to surrender identification documentation and who should not, in the first place, have been subjected to a protective search in the absence of any lawful investigative detention.
[48] Similarly, in Kaba the defendant refused to answer questions about his identity, was arrested for using offensive language and later charged with assault and other public disorder offences. The trial judge refused to admit evidence in support of the charges, given the unlawful questioning. Bell J found that the questioning was not unlawful, but agreed with the magistrate that the police coercive questioning exceeded their common law powers and breached Mr Kaba’s privacy rights. The matter was remitted for reconsideration by the magistrate as to whether the evidence of Mr Kaba’s alleged offending could be admitted.
[49] Returning to the present facts, we are inclined to the view that there was no intrusion into a reasonable expectation of privacy, and therefore no search because:
- (a) Mr Wright was questioned in a public place where interactions with other members of the public, including the police, were to be expected in the circumstances;[34] and
(b) No private or personal activity, affairs or information was observed, recorded or obtained — Mr Wright did not reveal his identity. [35]
[50] In reality, the questioning in this case appears to be no more than an attempted intrusion into a reasonable expectation of privacy, the conclusion effectively reached by Hinton J.
[51] But there is no need to be definitive about this, because whatever the intrusion, it was not unreasonable for the purpose of a public law civil remedy, as distinct from an evidential exclusionary remedy, which was the focus in the Canadian authorities. Two factors are relevant. First, if there was a breach, it was unintended and technical only. This approach to reasonableness aligns with the approach taken by Blanchard, Tipping, McGrath and Gault JJ in Hamed[36] and the majority of this Court in R v Jeffries.[37] Second, a positive finding on Mr Wright’s argument under this heading does not add in any material way to the declarations made by the High Court nor could it result in any additional award of compensation.
Is it necessary to prove intention to do wrong or subjective recklessness in order to obtain exemplary damages?
[52] We can deal with this issue briefly. As Hinton J stated,[38] the test in Couch v Attorney-General applies to exemplary damages in all cases.[39] The central issue in that case was whether an award for exemplary damages was confined to intentional torts. Tipping J’s summary provides a succinct answer:
[178] Exemplary damages are anomalous. Civil remedies are not generally designed to punish. The reach of exemplary damages should therefore be confined rather than expanded. Outrageousness is not a satisfactory sole criterion. The concept lacks objective content and does not contain sufficient certainty or predictability. Exemplary damages should be confined to torts which are committed intentionally or with subjective recklessness, which is the close moral equivalent of intention.
[179] Applying that principle to the case of negligently caused personal injury (that is, injury caused through breach of a duty of care), exemplary damages may be awarded if, but only if, the defendant deliberately and outrageously ran a consciously appreciated risk of causing personal injury to the plaintiff. Whether running such a risk should be regarded as outrageous will depend on the degree of risk that was appreciated and the seriousness of the personal injury that was foreseen as likely to ensue if the risk materialised.
[53] Plainly the focal point of the inquiry is not the committing of the tort per se (whether in negligence or otherwise), but the subjective appreciation of the risk of wrongful harm.
[54] Mr Wright did not challenge the award of compensatory damages but it is useful to briefly summarise the basis for this award. Following a lengthy review of case law dealing with damages, the Judge awarded compensatory damages in the sum of $14,000, comprising $12,000 on the torts (battery, assault and false imprisonment) and $2,000 in public law damages. The Judge noted that in terms of tort damages, persevering with the charge for four months was an aggravating factor, together with the greater humiliation and outrage felt by Mr Wright as a person aware of his rights. The Judge said it was important to note that compensation for a BORA breach is about vindicating fundamental rights.
[55] Exemplary damages were, however, rejected because the torts were not committed intentionally or recklessly and Constable Bhosale did not act in bad faith. The Judge accepted his account of what happened at the station and that he was unaware of his error. The Judge also rejected the broader claim that the police training (and training manual) about their powers in this context was inadequate.
[56] We see no flaw with the Judge’s assessment.
Outcome
[57] The appeal is dismissed.
Costs
[58] Despite Mr Wright’s submission to the contrary we see no reason why costs should not follow the event. The appellant must pay the second respondent costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Meredith
Connell, Auckland for Second Respondent
[1] Wright v Bhosale [2015] NZHC 3367, [2016] NZAR 335 [High Court judgment].
[2] The pleading referred to “demand” but Mr Wright pursued a declaration in respect of “asking” in response to submissions that asking was permissible.
[3] High Court judgment, above n 1.
[4] The issues were largely agreed. The first and second questions represent an amalgam of the issues posited by the parties.
[5] High Court judgment, above n 1.
[6] High Court judgment, above n 1 (footnotes in original).[.][.]
[9] R v Rogers (1993) 1 HRNZ 282 (CA) at 284.
[10] Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) at [31].
[11] Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) at [68].
[12] High Court judgment, above n 1 (footnotes in original).
[13] Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [22.3.3].
[14] Paul Rishworth The New Zealand Bill of Rights (Oxford University Press, 2003) at 600.
[16] High Court judgment, above n 1 (footnote in original).
[17] Taylor v New Zealand Poultry Board [1984] 1 NZLR 394 (CA) at 406 per McMullin J. See also Rice v Connolly [1966] 2 QB 414 at 419. The Crown also refers to the Chief Justice’s Practice Note on police questioning.
[18] Re Chase [1988] NZCA 181; [1989] 1 NZLR 325 (CA) at 343 per Henry J; Auckland City Council v AttorneyGeneral [1995] 1 NZLR 219 (HC) at 222–223.
[19] See the discussion in Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229 at [50]–[56].
[20] High Court judgment, above n 1 (footnotes in original).
[21] Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [220].
[22] At [164].
[23] Citing Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.11], [2.14] and [2.15]; R v Jeffries [1994] 1 NZLR 290 (CA); R v Grayson [1997] 1 NZLR 399 (CA) and Hamed v R, above n 21.
[24] As defined by Richardson J in R v Jeffries, above n 23, at 300.
[25] As defined by Blanchard J in Hamed v R, above n 21, at [163], and by this Court in Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [22].
[26] Lorigan v R, above n 25, at [23]–[24].
[27] R v Williams [2007] NZCA 52; [2007] 3 NZLR 207 (CA) at [48].
[28] Lorigan v R, above n 25, at [22]. See also Hamed v R, above n 21, at [10], [161], [264] and [285].
[29] See R v Fraser [1997] 2 NZLR 442 (CA) at 449–450 where Gault J referred to the definition of “Search” in Black’s Law Dictionary, which included: “A prying into hidden places for that which is concealed and it is not a search to observe that which is open to view.” See also R v Grayson, above n 23.
[30] See, for example, Hamed v R, above n 21; Lorigan v R, above n 25.
[31] R v Pinto [2003] OJ No 5172, 113 CRR (2d) 140 at [51].
[32] Director of Public Prosecutions v Kaba [2014] VSC 52, (2014) 44 VR 526 at [487].
[33] Above n 31, at [66]. The Canadian jurisprudence must also be understood in light of the unlawful detention aspect of the police conduct in this case and other Canadian authorities: R v Mellenthin [1992] 3 SCR 615 and R v Dennis [2005] OJ No 5662.
[34] This was an important factor in the majority decision in Hamed v R, above n 21, at [167] per Blanchard J.
[35] In Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [117] (per Gault P and Blanchard J) this Court identified that in the civil context, before a breach can occur there must be publicity given to private facts. Associate Professor Nicole Moreham in “Privacy in the Common Law: A Doctrinal and Theoretical Analysis” (2005) 121 LQR 628 at 638 identifies that: “Whilst it is important to recognise that the risk of a privacy interference can itself have adverse effects on an individual, such risks should not be equated with privacy interferences themselves.”
[36] Hamed v R, above n 21, at [174], [226], [263] and [281]; compare the view of Elias CJ at [49]–[50].
[38] High Court judgment, above n 1, at [149].
[39] Couch v Attorney-General [2010] NZSC 27, [2010] 3 NZLR 149.
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