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Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608; [2018] 2 NZLR 712 (18 December 2017)

Last Updated: 31 May 2019

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
BETWEEN
 Appellant
AND
 Respondent
Hearing:
2 November 2017
Court:
French, Miller and Winkelmann JJ
Counsel:
D J Perkins for Chief Executive of the Department of Corrections D A Ewen and SWO Campbell for S A Gardiner
Judgment:


JUDGMENT OF THE COURT

A The appeals are dismissed.

  1. The appellant in CA44/2017 must pay the respondent 80 per cent of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

Introduction

[1] Shane Gardiner was held in the custody of the Department of Corrections for longer than he ought to have been under his sentences of imprisonment. We are asked to decide whether the Chief Executive is liable in false imprisonment; and if so, whether damages ought to be paid, and in what sum.
[2] The Department released Mr Gardiner on 23 September 2016. Prison staff had earlier understood that his statutory release date under several concurrent sentences of imprisonment was 2 October 2016. Their calculation was faithful to this Court’s 2003 interpretation, in Taylor v Superintendent of Auckland Prison (Taylor),[1] of legislative provisions governing credit for pre-sentence detention.[2] That interpretation was wrong. The Supreme Court so held on 22 September 2016, in Booth v R (Marino).[3] Mr Gardiner ought to have been released on 24 August 2016. He spent 30 days longer in prison than he ought to have done.
[3] Mr Gardiner sued in tort for false imprisonment. He sought summary judgment on liability and succeeded before Simon France J.[4] Remedy was tried before Dunningham J, who found damages appropriate and awarded Mr Gardiner $10,000, with costs.[5]
[4] This leads to three appeals: two by the Chief Executive, one (CA44/2017) against Simon France J’s judgment on liability, and one (CA498/2017) against Dunningham J’s judgment finding an award of damages appropriate; and one by Mr Gardiner against the quantum of damages awarded by Dunningham J (CA496/2017). The Chief Executive maintains that the judgment of the Supreme Court was prospective only, so that Mr Gardiner’s detention was lawful throughout;[6] alternatively, that the Prisoners’ and Victims’ Claims Act 2005 (PVCA) stands as a bar to compensation; and further, that a declaration would be a sufficient remedy. Mr Gardiner maintains that the award was inadequate.

Pre-sentence detention: the Supreme Court judgment

[5] The Supreme Court judgment in Marino having settled the law, we need not discuss ss 90 and 91 of the Parole Act 2002, nor this Court’s judgment in Taylor. The Supreme Court’s reasons are of moment in this appeal primarily for what they say, or do not say, about the judgment’s retrospective effect.
[6] It is not in dispute that, following Taylor, the Chief Executive had calculated pre-sentence detention, where concurrent sentences were imposed, on a
charge-by-charge rather than an aggregate basis. Under that approach Mr Gardiner would have been correctly detained until 2 October 2016. The Supreme Court held that pre-sentence detention is to be calculated in the aggregate, meaning that a prisoner serving concurrent sentences is entitled to credit for all pre-sentence detention even where it pre-dates the offence that received the longest sentence at his subsequent sentencing.[7] Under that approach the Parole Act did not authorise Mr Gardiner’s detention after 24 August 2016.
[7] The majority judgment in the Supreme Court is brief. The Court addressed itself to the correct interpretation of the legislation, speaking in the present tense and holding that:[8]

The ... definition of pre-sentence detention relates to detention during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment. The entirety of that period is deducted from each sentence or sentences of imprisonment imposed...

(Footnotes omitted.)

[8] Turning to what that meant for the appellants before it, the Court held shortly that: “for both Mr Marino and Mr Booth, the whole period from the first remand in custody until sentence, is pre-sentence detention applicable to all charges”.[9]
[9] We were advised that, anticipating the Supreme Court might not decide his appeal before his scheduled release, Mr Marino sought, in the alternative, a declaration that his detention after a given date was unlawful. Mr Marino’s counsel also invited the Supreme Court to declare its revised interpretation of the legislation retrospective in effect. The majority judgment in the Supreme Court makes no express reference to either of these matters. It simply records, when allowing the appeal, that Mr Marino would have been entitled to an order for release but no longer needed it because he had by then been released.[10]
[10] Writing separately, William Young J held that he would determine the appeals in the same way as the majority but would also grant a declaration that Mr Marino was entitled to be released on a given date. He added an acknowledgement that the majority judgment had the same practical effect.[11]

Overruling without retrospective effect

[11] The declaratory theory of law holds that judges do not make law but rather discover what was always there to be found. This is a fiction which was formerly relied upon at common law to justify the retrospective effect of judicial decisions on settled transactions.
[12] It is now uncontroversial that judges do make law and their decisions operate with retrospective effect upon the transaction before them and others that may have been entered in reliance on the law as it was.[12]
[13] But though the declaratory theory may be discredited, judges still make law retrospectively. The rationale now rests on the nature of the judicial function. Judges adjudicate disputes between parties, finding what happened in the past and deciding what consequences ought to follow in law. Were they to decide that the law they make would not apply retrospectively, they would be legislating for the future while deciding the case before them on a different basis. If the rationale for changing the law with non-retrospective effect is that people had transacted with one another in reliance on the former law, the Court’s decision should also presumably be limited to transactions entered after the date of judgment, rather than to cases decided after that date. Courts may not be fully informed about the social effects and policy considerations that inform such choices.
[14] A further reason for caution is that the rationale for non-retrospective overruling — the adverse effects of retrospective change in the law upon settled transactions — would seem to apply equally to judicial rulings on common law and statute law.
[15] Attempts to find a middle ground raise other difficulties. For example, the instant case might be decided retrospectively, so rewarding the winning party for its investment in the litigation, but that is a decision taken for wider policy reasons and it is very likely to be unfair to the losing party for the same reasons that caused the court to make the new law non-retrospective for others. To overrule without retrospective effect then is to confront policy considerations that courts should engage with caution, recognising their institutional limitations, and should sometimes leave to the legislature.
[16] For these reasons, final appellate courts have been circumspect about “prospective overruling”. (The term is a misnomer since the law always operates prospectively; what is meant is that the overruling is not retrospective and so has prospective-only effect.) We need mention only Re Spectrum Plus Ltd (in liq) (Spectrum) and Lai v Chamberlains.[13] In Spectrum, the House of Lords held that non-retrospective overruling is possible and may be done where the interests of justice exceptionally compel it, as where a court’s decision would otherwise have gravely unfair and disruptive consequences for past transactions or happenings.[14] It was not found necessary in that case, however, and it appears that no English court has yet exercised the power.
[17] In Lai v Chamberlains the Supreme Court overruled authorities that had established the immunity of barristers from suit.[15] The Court was asked to make any change non-retrospective but had no evidence that retrospectivity would cause undue hardship. That being so, the Court found it unnecessary to decide whether the power to overrule non-retrospectively exists in New Zealand.[16]
[18] Two judges would have held that non-retrospective overruling is possible.[17] Tipping J’s judgment contains a valuable discussion of the topic. He concluded that decisions should speak retrospectively unless they change settled law of a kind that citizens or the community generally are likely to have relied upon when ordering their affairs, that harm done to those who relied on the law must be balanced against harm done if the law is changed for the future only, and that overruling should usually be retrospective for the parties to the litigation, since the party who got the law changed should be entitled to benefit from it.[18]
[19] So the position in New Zealand is that prospective-only overruling remains an open question that will require an answer only if a court has reason to think that retrospective overruling will change settled expectations and cause hardship to such an unusual extent that departure from normal practice might be justified.

Was the Supreme Court judgment prospective-only in effect?

[20] Mr Perkins, who appeared for the Chief Executive, submitted that this Court may find the Supreme Court’s judgment non-retrospective because that Court was itself silent on the matter. It would be just to so decide, for Taylor settled the law, this Court and the High Court having followed it unquestioningly on a number of occasions since 2003.[19] It was plainly reasonable for the Chief Executive to rely upon Taylor and he did so in good faith when calculating pre-sentence detention for hundreds of thousands of sentences. Great harm would be done by giving the judgment retrospective effect, because it might expose the Chief Executive to liability to thousands of prisoners whose pre-sentence detention was calculated following Taylor. Counsel was prepared to accept that it would be proper to give the judgment partial retrospective effect by applying it to Messrs Booth and Marino, since they succeeded in getting the law changed.
[21] Simon France J rejected these arguments, stating that:[20]

[10] Despite recognising it as a theoretical possibility, prospective overruling, as it is called, has not actually been done in many of these jurisdictions, and certainly not in this way in New Zealand. And therein, in my view, lies the insuperable hurdle for the Chief Executive. His argument must be that in its decision on the Parole Act 2002, the Supreme Court either:

(a) made a prospective only decision of this type for the first time in New Zealand and never commented on the fact it was doing so, nor confirmed such a thing was possible, nor identified the relevant criteria, nor explained why it was taking that step in this case; or alternatively

(b) intended the normal rule of retrospectivity (the declaratory theory) to not automatically apply. Instead, prospectivity was left to be decided initially by a first instance trial court (either the District or High Court for this level of claim). Again, the Supreme Court has not said in its judgment that it was intending the normal rule not to automatically apply, so it must be a matter of inference.

The Judge found both these propositions improbable and added that, had the Chief Executive wanted a prospective judgment, he ought to have raised the issue there and then rather than await a new civil proceeding in a lower court.[21]

[22] We respectfully adopt Simon France J’s reasoning. We find the judgment unmistakeably retrospective in effect. Had it been prospective only the Supreme Court must have specified that the detention of Messrs Booth and Marino remained lawful. The majority held, on the contrary, that their pre-sentence detention was to be calculated in the aggregate. It follows that they had been detained unlawfully for some time before the Court delivered its judgment. We accordingly reject Mr Perkins’s argument that the Court was silent, allowing us to give its judgment prospective-only effect. We find untenable his alternative argument that the judgment was partially retrospective, applying to Messrs Booth and Marino alone. Had the Court meant to limit the retrospective effect of its judgment in that way it must have said so. It could not remain silent on so particular a distinction or fail to discuss the policy considerations that must inform it.
[23] Underpinning the Chief Executive’s argument is the claim that retrospective overruling is unfair, for he followed Taylor in good faith and retrospectivity may expose him to liability to many prisoners. On this point Simon France J held:

[21] There are several responses to this. First, the perceived unfairness is not unique. It is the direct consequence of the declaratory theory and applies whenever decisions of precedent value are overruled. Second, it is wrong to treat the matter as if the Chief Executive were a private individual. It is the State which aggregates to itself the power to keep people in jail, and properly recognises it must have lawful authority to do so. The right not to have one’s liberty removed other than with lawful authority is a key plank of our society, and one of its most important and fundamental rules. The value attached to the writ of habeas corpus which requires immediate release reflects this. False imprisonment is a tort of strict liability for good reason.

[22] Finally, as always, fairness is a matter of perception. Being incorrectly locked up for 127 days may equally seem unfair to the prisoner. In this case that has occurred without fault on the part of Mr Marino, and without him being able to prevent it. It happened because successive courts (as has now been held) misinterpreted the Act. That incorrect interpretation was promoted by the Chief Executive as being correct in the Taylor case. Mr Marino could rightly contend it is unfair for the State to incorrectly detain him for more than four months longer than his sentence authorised, and not be compensated.

[24] We agree. The Chief Executive’s sense of grievance is understandable. He had to follow Taylor. But good faith is no defence to the tort, he is liable not personally but in his capacity as an agent of the State, unlawful detention is prima facie unfair to the individual detainee, and these propositions would seem to hold however many few or many affected prisoners there may be. We note parallels with R v Governor of Brockhill Prison, ex parte Evans (No 2), in which the House of Lords reached the unremarkable conclusion that injustice resulted when prisoners were detained for too long after their pre-sentence detention was calculated reasonably and in good faith but, as it turned out, incorrectly.[22]
[25] We conclude that the Supreme Court judgment is retrospective in effect and no question arises of giving it effect for the future only. Nor is this one of those exceptional cases in which that course of action might deserve serious consideration.

Does the PVCA bar compensation?

[26] The purpose of the PVCA is to restrict and guide the awarding of compensation to those who make “specified claims”. Such awards are to be reserved for exceptional cases:

3 Purpose of this Act

(1) The purpose of subpart 1 of Part 2 is to restrict and guide the awarding of compensation sought by specified claims in order to help to ensure that the remedy of compensation is reserved for exceptional cases and used only if, and only to the extent that, it is necessary to provide effective redress.

[27] A specified claim is, relevantly, a claim for compensation by a prisoner that is made in tort or under the New Zealand Bill of Rights Act 1990 and based on an act or omission of the Crown.[23] It is common ground that Mr Gardiner’s claim is a specified one.
[28] The PVCA provides that compensation may not be awarded in such a claim unless the court is satisfied that the plaintiff made reasonable use of reasonably available complaints mechanisms and got no redress:

13 Restriction on awarding of compensation

(1) No court or tribunal may, in proceedings to which this subpart applies, award any compensation sought by a specified claim unless satisfied that—

(a) the plaintiff has made reasonable use of all of the specified internal and external complaints mechanisms reasonably available to him or her to complain about the act or omission on which the claim is based, but has not obtained in relation to that act or omission redress that the Court or Tribunal considers effective; and

(b) another remedy, or a combination of other remedies, cannot provide, in relation to the act or omission on which the claim is based, redress that the Court or Tribunal considers effective.

(2) In this section, reasonable use of a complaints mechanism means the use that the Court or Tribunal considers it reasonable for the plaintiff to have made in the circumstances.

[29] A complaints mechanism is, relevantly, an internal prison complaints system, a corrections inspector investigation and an Ombudsman investigation.[24]
[30] As it happens, Mr Gardiner did tell prison staff that he believed his release date had been wrongly calculated. He did not take that further or make use of any other complaints mechanism. (He did not appeal his sentence or seek habeas corpus either, but these are not defined complaints mechanisms.) The Chief Executive says that his failure to employ all the complaint mechanisms is a bar to compensation.
[31] Manifestly, none of the PVCA’s complaints mechanisms could have done Mr Gardiner any good, for he must have been told that the law was as stated in Taylor and Corrections had to follow it. Mr Perkins did not dispute this. He simply took the literal stance that complaints mechanisms were available and might have been used, but were not. In his submission it matters not that in Mr Gardiner’s circumstances these mechanisms were perfectly useless.
[32] Dunningham J rejected this argument, holding that a reasonably available mechanism is one that might reasonably deliver some redress for the prisoner:[25]

[20] The requirement in the Act is to make “reasonable use” of all of the complaint mechanisms “reasonably available” to the claimant. I accept, as Mr Gardiner says, that this requires an objective assessment by the Court as to whether, in the particular circumstances of the plaintiff’s case, it was reasonable to expect him or her to use the identified complaints mechanisms.

[21] In this case, the complaint was not about acts or omissions which were factually specific to Mr Gardiner and where, if the error was pointed out, it could readily be corrected. Rather, it was that he considered the application of the law, as understood at that time, affected an injustice in his circumstances. Ms Leota, the Acting National Commissioner of Department of Corrections, acknowledged that, had Mr Gardiner filed a complaint about the sentence duration, she expected that the Inspector could recommend that the prison undertake a further calculation, but he could not determine how long the prison sentence was. Equally, if the matter had been referred to the Office of the Ombudsman, staff there would not recalculate the prison sentence, but would likely request that the Department undertake a further calculation. However, in both cases, the Department would have felt constrained to apply the calculation dictated by the Taylor decision, and would have upheld the sentence calculation.

[33] We have come to the same conclusion. A court could not lightly attribute to Parliament an intention that a prisoner must use mechanisms that could not possibly offer any redress and which, as a result, he might reasonably think pointless. Fortunately, the legislation does not compel us to do so. The PVCA was intended to ensure that prisoners could not claim compensation for harm for which they might have obtained redress through an internal process. That is apparent from s 11(b), which provides that when compensation is sought the Act:

(b) requires other remedies to be used if, in the particular circumstances, they are capable, alone or in combination, of providing effective redress.

When read with that statement of purpose, s 13(1) plainly contemplates that a claim is barred only when the prisoner has not made reasonable use of a reasonably available complaints mechanism that might have delivered effective redress and so reduced or eliminated any case for compensation.

[34] We find support for this interpretation in the legislative history. The legislature was spurred into action by the first instance judgment in Taunoa v Attorney-General, which concerned prisoners who were awarded compensation for having been held in a behaviour modification programme without lawful authority.[26] The Select Committee report on the Bill stated that:[27]

The bill responds to public concern at the awarding of monetary compensation in damages to prison inmates, many of whom had been subject to the Department of Corrections Behaviour Management Regime.

Because Corrections used its own disciplinary powers internal complaints mechanisms might have gained redress for affected prisoners in that case.

[35] When introducing the Bill the then Minister of Justice, the Hon Phil Goff, accordingly stated that:[28]

Requiring prisoners to use available complaints mechanisms is intended to ensure that complaints are brought to official notice and dealt with as quickly as possible. That will reduce any opportunity for prisoners to tolerate a breach longer than is necessary in order to claim compensation through the courts.

[36] We conclude that Dunningham J was right to find that the PVCA does not bar Mr Gardiner’s claim.

Was Dunningham J wrong to find damages the proper remedy?

[37] Section 14 of the PVCA establishes considerations that must be taken into account when deciding whether to award compensation, and how much. The list of considerations is:[29]

(a) the extent (if any) to which the plaintiff, the defendant, or both took, within a reasonable time, all reasonably practicable steps to mitigate loss or damage arising from the act or omission on which the claim is based; and

(b) whether the defendant's breach of, or interference with, the right concerned was deliberate or in bad faith; and

(c) the relevant conduct of the plaintiff; and

(d) the consequences for the plaintiff of the breach of, or interference with, the right concerned; and

(e) the freedoms, interests, liberties, principles, or values recognised and protected by the right concerned; and

(f) any need to emphasise the importance of, or deter other breaches of or other interferences with, the right concerned; and

(g) the extent (if any) to which effective redress in relation to that act or omission has been, or could be, provided otherwise than by compensation; and

(h) any other matters the Court or Tribunal considers relevant.

[38] Dunningham J observed that,[30] the s 13 threshold having been crossed, the s 14 list of considerations corresponds to what Blanchard J said in the Supreme Court in Taunoa v Attorney-General:[31]

[258] When, therefore, a Court concludes that the plaintiff’s right as guaranteed by the Bill of Rights Act has been infringed and turns to the question of remedy, it must begin by considering the
non-monetary relief which should be given, and having done so, it should ask whether that is enough to redress the breach and the consequent injury to the rights of the plaintiff in the particular circumstances, taking into account any non-Bill of Rights Act damages which are concurrently being awarded to the plaintiff. It is only if the Court concludes that just satisfaction is not thereby being achieved that it should consider an award of Bill of Rights Act damages.

...

[261] In determining whether a measure of damages should form part of the remedy in a particular case the court should begin with the nature of the right and the nature of the breach. Some rights are of a kind where a breach is unlikely to warrant recognition in monetary terms. Breaches of natural justice, for example, are likely to be better addressed by a traditional public law means, such as ordering the preceding end question to be reheard. But breaches of some rights of a very different character will inevitably demand a response which must include an award of damages whether in tort or under the Bill of Rights Act.

[39] Dunningham J accepted that the Chief Executive acted reasonably and in good faith. But the importance of the right breached justified compensation:[32]

[49] In my view, and as was acknowledged by both parties, the importance of the right to be protected from unlawful or arbitrary detention is undisputed. It is a core right acknowledged in the ICCPR, which New Zealand is a party to. It is also a right which is expressly protected by s 22 of the New Zealand Bill of Rights Act 1990 (NZBORA). In this case, the period of unlawful imprisonment lasted for one month. That is not a trivial or fleeting breach, but rather is a period of unlawful detention which warrants compensation simply to reflect the loss of liberty.

...

[52] In my view, the key factors pointing towards an award of compensation are the consequences to the plaintiff of the breach, and the need to recognise the importance of the right concerned. These are factors which continue to be recognised under the Act and can justify an award of compensation in appropriate circumstances. Furthermore, as Mr Ewen submitted, the Act must be construed in a manner which is consonant with New Zealand’s international obligations, where the text of the statute permits. These include those in Article 9 of the ICCPR. Here, the language of s 14(2)(e) and (f) expressly requires the Court to take into account the nature and importance of the right involved, and I consider this engages the principle that the victim of an unlawful detention should have an enforceable right to compensation.

[40] Mr Perkins submitted that a declaration would be sufficient redress in the circumstances and Dunningham J was wrong to decide otherwise. He submitted first that Mr Gardiner did not take all reasonable steps to help himself. We have rejected the submission that Mr Gardiner ought to have used internal complaints mechanisms, but Mr Perkins also argued that he ought to have appealed his sentence or moved for habeas corpus. We do not agree that it was reasonable to expect him to do so, for the same reasons that the Chief Executive believed the law settled.
[41] Next, Mr Perkins argued that the Chief Executive acted in good faith. Bad faith or deliberate breach may justify compensation. We accept that those considerations were absent here.
[42] Next, Mr Perkins argued that the consequences of extended detention for Mr Gardiner were minor. He submitted that Dunningham J correctly found that the extension of a lawful term of imprisonment is less serious than a sentence that should never have been imposed, and added that the impact of imprisonment on a recidivist is less severe than it would be on one with no experience of prison.[33]
[43] However, counsel also accepted that a prisoner’s interest in liberty is of the highest value. That being so, its loss merits compensation whether or not the prisoner also experiences additional harm in the form of disruption or distress. For the same reason, a declaration may not be an adequate remedy.
[44] Next, Mr Perkins argued that effective redress has been provided by other means, for the Chief Executive took steps as soon as possible to restore Mr Gardiner’s liberty. We accept that the Chief Executive acted promptly but we also agree with Dunningham J that to bring Mr Gardiner’s unlawful detention to an end was not to remedy what had gone before.[34]
[45] Finally, Mr Perkins argued that the case is not exceptional. He emphasised the PVCA’s purpose statement, which envisages that compensation should be reserved for exceptional cases. We have cited it at [26] above.
[46] We observe, however, that a case may be adjudged exceptional by reference to the body of cases encompassed by the Act, which includes any case in which a court or tribunal is asked to award any form of compensation for breach of rights affirmed or created under the New Zealand Bill of Rights Act, the Human Rights Act 1993, or the Privacy Act 1993.[35] The class plainly includes cases for which internal processes might be expected to offer redress, such as those arising from internal prison management practices and decisions. We do not know how many such cases there may be, or what features they present. Of course the PVCA covers other cases too, but they may be exceptional in type. A case need not cease to be exceptional because there are others like it; it may be exceptional for reasons such as the impact on the plaintiff’s liberty or the unavailability of alternative redress. In the end it is a question of judgement.
[47] In our opinion, Dunningham J was right to find that having regard to s 14 of the PVCA compensation was merited in Mr Gardiner’s case.

Was $10,000 too little?

The High Court’s approach

[48] Mr Gardiner invited Dunningham J to apply the Cabinet Guidelines for ex gratia compensation for wrongful conviction and imprisonment.[36] The guidelines, which were updated in May 2015, contemplate that compensation for non-pecuniary losses will be based on a starting figure of $100,000 for each year in custody.[37]
[49] The Judge noted that the guidelines apply to those who were wrongly convicted, while Mr Gardiner was lawfully imprisoned until what ought to have been his release date.[38] She followed Manga v Attorney-General, in which Hammond J had taken a starting point of $60,000 for 252 days wrongful imprisonment (the equivalent of $86,900 annualised) in the case of a recidivist who was lawfully imprisoned but then held for too long.[39] Using the same starting point, the Judge said that Mr Gardiner could be entitled to a little more than $7,000 for his month of unlawful imprisonment. Recognising that Manga was decided in 1999, she increased that sum to $10,000 for inflation.[40]

Submissions

[50] Mr Ewen, who appeared for Mr Gardiner, submitted that damages ought to have been set in the range of $14,000 to $15,000. He advanced that argument on two bases.
[51] Counsel submitted that Dunningham J erred by basing the award on Hammond J’s figure of $60,000 and allowed too little for interest. Damages may be fixed as a matter of impression, but an inflation adjustment ought to be made arithmetically using an appropriate statistical measure. The best measure, he submitted, is the Quarterly Employment Survey, because it corresponds to the lost opportunity for employment. With such an allowance, his alternative measures of damages would both lead to an award of about $14,300.
[52] Mr Perkins argued that damages ought not be awarded at all, as discussed above, but in the event that argument failed he did not invite us to reduce the award. Rather, he supported the judgment, arguing that Dunningham J was right to discount the Cabinet Guidelines and rely on Manga, submitting that the effect of an unlawful extension upon Mr Gardiner, who had served nine previous sentences of imprisonment, was less than it may have been for a person imprisoned for the first time.

The Cabinet Guidelines as a guide to damages

[53] We have reservations about Mr Ewen’s invitation to rely on the Cabinet Guidelines. They are a useful point of reference, but they have several limitations. They are an executive instrument that obviously does not limit the damages that a court may award. They are an indirect form of guidance because they are said to be based on what the courts have done.[42] They are addressed to cases in which the claimant was, on the balance of probabilities, innocent of the crime for which he or she was convicted and imprisoned, and in which the conviction has been set aside; and that is reflected in their heads of loss and measure of compensation.[43] The figure of $100,000 per annum was also first set in 2000, and for reasons given by Ellis J in Pora v Attorney-General we accept that some allowance would have to be made for the time value of money, an exercise which invites controversy about the choice of measure and which might have a substantial impact on the final sum.[44]

Heads of loss for wrongful imprisonment

[54] In Manga, Hammond J identified, by reference to common law authority, the principal heads of compensation for wrongful imprisonment: relevantly, pecuniary or economic loss, injury to feelings (indignity, mental suffering, loss of family consortium, disgrace, humiliation and loss of social status) and injury to liberty.[45]
[55] The non-exhaustive list of considerations in s 14 of the PVCA must now be taken into account not only when deciding whether compensation is payable to a wrongfully-imprisoned plaintiff but also when fixing the amount.[46] So, for example, a court should consider whether the breach of right was in bad faith and whether compensation is needed to emphasise the right’s importance and deter other breaches.
[56] A court should also take into account the plaintiff’s relevant conduct, which requires a clear nexus between his or her behaviour and the defendant’s wrong — in this case, the unlawful additional period of imprisonment.[47] It includes, for example, any act of the plaintiff that may have caused the defendant to act as it did. As noted, the PVCA was a response to Taunoa, in which Corrections was trying to manage especially difficult prisoners, and it appears that the legislature was concerned to ensure that courts must take provocation by the prisoner into account.[48]
[57] The Cabinet Guidelines distinguish between pecuniary and non-pecuniary losses without cataloguing what may fall into those categories. They do state that by way of example that pecuniary losses include loss of livelihood and future earnings.[49] Non-pecuniary losses include, again by way of example, loss of liberty or emotional harm.[50] The guidelines thus extend generally to the heads of loss that a court might recognise but place injury to liberty and injury to feelings into a single category.

Damages for a prisoner detained too long

[58] A plaintiff who was lawfully convicted and imprisoned but detained for too long may be in a weaker position vis-à-vis compensation than one who ought never have been convicted, because it may not be easy to identify losses attributable to the marginal period for which detention was unlawful. We make three points about this.
[59] First, the plaintiff may find it difficult to prove pecuniary losses. It might be possible to establish the loss of a chance of employment or other financial gain had release been timely, but in many cases any loss will be attributable to the period of lawful imprisonment. Unsurprisingly, Mr Gardiner made no claim for pecuniary losses.
[60] Second, when examining non-pecuniary losses a distinction must be drawn between injury to liberty and emotional harm or injury to feelings. The former will be suffered by all those detained unlawfully, but the latter must vary with the circumstances of the case. No doubt incarceration causes many prisoners to experience some emotional harm throughout their sentences. Some may suffer added distress when aware that they ought to have been released earlier. (Mr Manga, for example, had been told he would be released at a certain time and experienced shock and distress on being told otherwise and on being rebuffed repeatedly when he protested throughout what proved to be a long period of wrongful detention.)[51]
[61] Finally, liberty is a fundamental right and its unlawful loss may justify the emphasis of a damages award, as s 14 recognises, but the amount need not be the same in all circumstances. The community at large places a very high value on liberty and, as Mr Perkins properly accepted, that value is not necessarily less because the plaintiff was lawfully imprisoned for a period. It is proper to begin with that value. But when converted to a per-day rate, the value of liberty may vary both with the length of the sentence lawfully imposed and with the period of unlawful detention. (The shorter the latter the higher may be the per-day rate.)[52]
[62] In this regard, it has been held in England that a plaintiff who has plainly demonstrated that he or she places a low value on personal liberty — for example, by committing offences in prison and so risking delayed release — may expect that value to be reflected in the award.[53] We prefer the view, as stated above, that conduct of the plaintiff may be taken into account where there is a clear nexus between that conduct and the additional period of imprisonment.

Compensation in this case

[63] We approach the exercise by assessing damages for ourselves and comparing the result to that reached in the High Court. We do so because, as we go on to explain, we prefer not to take Manga as our starting point. The starting point must be that damages are at large and should not be assessed in a formulaic way.[54]
[64] As noted, Mr Gardiner does not claim pecuniary losses. So far as nonpecuniary losses are concerned, he points only to the loss of liberty. We have accepted at [60] that a prisoner may suffer emotional harm throughout a sentence and so may seek compensation when detained too long, but there is no evidence that Mr Gardiner suffered such harm during the period of unlawful detention. Although that period was material, at one month, it was associated with a lawful sentence. It could not be suggested that his conduct somehow caused Corrections to act as it did. Equally, Corrections acted in good faith and there is no need for deterrence.
[65] We find Manga a useful illustration on particular facts but do not adopt it as a starting point. The annualised figure of $130,000 adopted there was not closely related to any previous case, and it was high relative to the near-contemporaneous 2000 Cabinet Guidelines figure of $100,000 for a wrongly convicted prisoner. It reflected significant emotional harm suffered by Mr Manga and the very long period for which he was unlawfully imprisoned.[55]
[66] Manga also pre-dated both the PVCA and a number of cases, including Taunoa, in which Baigent damages have been awarded to prisoners for breach of protected rights.[56] In Taunoa Blanchard J emphasised that damages in tort should not be equated with Baigent damages because the latter are a form of public law compensation and discretionary.[57] However, the effect of the PVCA is to make tort damages discretionary and exceptional, as already noted.[58] In our view that means claims for Baigent damages are an appropriate comparator in this context.[59] Helpful cases include:

(b) Forrest v Attorney-General, where the plaintiff received nominal damages to compensate for a brief unlawful strip search in prison.[62]
(c) Attorney-General v Niania, where the plaintiff received $5,000 for an unlawful arrest.[63]
(d) Attorney-General v Hewitt, where the plaintiff also received $5,000 for an unlawful arrest.[64]
[67] We also observe that, in 2001, this Court noted in Neilsen v Attorney-General that $5,000 in damages would be the ordinary remedy for an unlawful imprisonment with no aggravating features.[65] That case involved a brief period of detention on an unlawful arrest, whereas in this case Mr Gardiner was held for 30 days. But the plaintiff there ought never have been detained and he experienced emotional harm.[66] Neither of those factors is present here.
[68] The Cabinet Guidelines are a useful point of reference, but as noted earlier they combine all non-pecuniary losses into one category so the figure of $100,000 must be discounted substantially for a plaintiff in Mr Gardiner’s circumstances. He was not wrongfully convicted and imprisoned and he cannot point to the serious emotional harm that such a person would likely suffer. On the other hand, to the extent the guidelines were used an adjustment would also need to be made for the time value of money.
[69] We accordingly approach the assessment on the basis that we are valuing the loss of Mr Gardiner’s liberty for about five per cent of his lawful sentence. An award must be large enough to vindicate the important liberty interest, but there is no cause to increase that sum for emotional harm or deterrence. Because we have used neither Manga nor the Cabinet Guidelines as our starting point, it is not appropriate to adjust arithmetically for inflation from a given date; that would lend a false air of precision to the exercise and risk producing an end result that is too high when compared to subsequent cases. Rather, we make the assessment as at the date of breach, recognising that an allowance must be made for change in the value of money to the extent that we base the award on older cases.
[70] In our opinion an appropriate award would be not less than $8,000 and perhaps as much as $12,000.
[71] Dunningham J’s award was within that range. We are not persuaded that she was wrong to fix it where she did.

Result

[72] The appeals are dismissed.
[73] The majority of time taken in the appeals was by the Chief Executive’s appeals against liability. Though Mr Gardiner was unsuccessful in his attempt to increase damages, he was successful in resisting the Chief Executive’s two appeals. In the circumstances Mr Gardiner is entitled to costs. The appellant in CA44/2017 must pay the respondent in CA44/2017 80 per cent of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.






Solicitors:
Crown Law Office, Wellington for Chief Executive of the Department of Corrections
Ord Legal, Wellington for S A Gardiner

[1] Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).

[2] Parole Act 2002, ss 90–92.

[3] Booth v R [2016] NZSC 127, [2017] 1 NZLR 223 [Marino].

[4] Marino v Chief Executive of Department of Corrections [2016] NZHC 3074, [2017] NZAR 9.

[5] Gardiner v Chief Executive of the Department of Corrections [2017] NZHC 1831, [2017] NZAR 1348.

[6] Mr Gardiner’s statutory release date was 2 October 2016. However the Chief Executive correctly noted that, pursuant to s 52(2) of the Parole Act, Mr Gardiner would have had to have been released on 28 September 2016, as that was the earliest release day preceding his statutory release date.

[7] Marino, above n 3, at [17] and [23] per Elias CJ, Glazebrook, Arnold and O’Regan JJ.

[8] At [24] per Elias CJ, Glazebrook, Arnold and O’Regan JJ.

[9] At [35] per Elias CJ, Glazebrook, Arnold and O’Regan JJ.

[10] At [37] per Elias CJ, Glazebrook, Arnold and O’Regan JJ.

[11] At [118].

[12] See for example Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, ThomsonReuters, Wellington, 2014) at 790–791.

[13] Re Spectrum Plus Ltd (in liq) [2005] UKHL 41, [2005] 2 AC 680 [Spectrum]; and Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.

[14] Spectrum, above n 13, at [39]–[41] per Lord Nicholls, [45] per Lord Steyn, [74] per Lord Hope, [126] per Lord Scott, [161] per Lord Walker, [162] per Baroness Hale and [165] per Lord Brown.

[15] Lai v Chamberlains, above n 13.

[16] At [95] per Elias CJ, Gault and Keith JJ

[17] At [147] per Tipping J and [205] per Thomas J.

[18] At [142]–[147] per Tipping J.

[19] See for example Te Aho v R [2013] NZCA 47; Booth v R [2015] NZCA 603; Costello v R [2015] NZCA 512; and Kahui v R [2013] NZCA 124.

[20] Marino v Chief Executive of Department of Corrections, above n 4.

[21] At [15]–[19].

[22] R v Governor of Brockhill Prison, ex parte Evans (No 2) [2000] UKHL 48; [2001] 2 AC 19 (HL).

[23] Prisoners’ and Victims’ Claims Act 2005, s 6.

[24] Section 7.

[25] Gardiner v Chief Executive of the Department of Corrections, above n 5.

[26] Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC).

[27] Prisoners’ and Victims’ Claims Bill 2004 (241–2) (select committee report) at 1.

[28] (14 December 2004) 622 NZPD 17986.

[29] Prisoners’ and Victims’ Claims Act, s 14(2).

[30] Gardiner v Chief Executive Department of Corrections, above n 5, at [54].

[31] Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429.

[32] Gardiner v Chief Executive of the Department of Corrections, above n 5.

[33] At [68].

[34] At [50].

[35] Prisoners’ and Victims’ Claims Act, s 6.

[36] Ministry of Justice Compensation for wrongful conviction and imprisonment (May 2015) [Cabinet Guidelines].

[37] At 6.

[38] Gardiner v Chief Executive of the Department of Corrections, above n 5, at [64].

[39] Manga v Attorney-General [2000] 2 NZLR 65 (HC).

[40] Gardiner v Chief Executive of the Department of Corrections, above n 5, at [70]–[71].

[41] This figure differs from that used by Dunningham J, who used the discounted figure. Mr Ewen averaged the nondiscounted and discounted figures from Manga v Attorney-General, above n 39, at [96] ($60,000 and $90,000 respectively).

[42] Cabinet Guidelines, above n 36, at 6.

[43] At 1.

[44] Pora v Attorney-General [2017] NZHC 2081, [2017] 3 NZLR 683 at [111]–[121] and
[123]–[124].

[45] Manga v Attorney-General, above n 39, at [49] and [54]. Hammond J also included the costs of physical injury, which are not relevant here and would be covered by accident compensation in any event: Willis v Attorney-General [1989] 3 NZLR 574 (CA) at 579.

[46] Prisoners’ and Victims’ Claims Act, s 14(1)(b).

[47] Attorney-General v Niania [1994] 3 NZLR 106 (HC) at 112–113. See also Lane v Holloway [1967] EWCA Civ 1; [1968] 1 QB 379 (CA) at 390 and 392–393 per Salmon LJ.

[48] Prisoners’ and Victims’ Claims Bill (241–2) (select committee report) at 7.

[49] Cabinet Guidelines, above n 36, at 1.

[50] At 1.

[51] Manga v Attorney-General, above n 39, at [17], [26] and [84].

[52] R v Governor of Brockhill Prison, ex parte Evans (No 2) [1998] EWCA Civ 1042; [1999] QB 1043 (CA) at 1060 per Lord Woolf MR.

[53] At 1060 per Lord Woolf MR. See also Manga v Attorney-General, above n 39, at [63] and [89].

[54] Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 (HL) at 1221 per Lord Devlin. See also Taunoa v AttorneyGeneral, above n 31, at 260 per Blanchard J.

[55] Manga v Attorney-General, above n 39, at [82], [84] and [86].

[56] Simpson v Attorney-General [Baigent’s Case] [1994] 3 NZLR 667 (CA).

[57] Taunoa v Attorney-General, above n 31, at [258]–[259].

[58] See [26] and [46] above.

[59] We also agree with Dunningham J that there is significant overlap between the considerations in this context and those mandated by the Supreme Court in Taunoa v Attorney-General, above n 57: see [38] above.

[60] Taunoa v Attorney-General, above n 31.

[61] At [271] per Blanchard J.

[62] Forrest v Attorney-General [2012] NZCA 125, [2012] NZAR 798. We note that the Court there took a similar approach to the one we are taking, fixing damages based on a consideration of comparable Baigent damages cases: at [41].

[63] Attorney-General v Niania, above n 47.

[64] Attorney-General v Hewitt [2000] 2 NZLR 110 (HC).

[65] Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 (CA) at [51].

[66] At [50].

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