Hewison v Attorney General on Behalf of the New Zealand Police HC Auckland CP415/98 [2001] NZHC 453 (6 June 2001)

Last Updated: 5 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY CP415/98

BETWEEN ANTHONY HEWISON of Australia, Unemployed
Plaintiff

AND THE ATTORNEY GENERAL ON BEHALF OF THE NEW ZEALAND POLICE
Defendant

Hearing: 26, 27, 28, 29 March 2001

Counsel: Paul Dale and Tanya Spinka for Plaintiff
Ross Burns for Defendant

Judgment: 6 June 2001

RESERVED JUDGMENT OF WILLIAMS J

Preliminary and general

[1] Although it is trite to say that contract is a legal concept with almost infinite flexibility, as contract cases go this one demonstrated a number of unusual features.

[2] First, the plaintiff, Anthony Hewison, is a former high-ranking member of the Mongrel Mob with a long list of convictions. In late 1997 he decided to break away from the Mongrel Mob and relocate with his family to Australia to live. In order to finance their shift he and the Police entered into what both accept was an oral agreement for Mr Hewison to sell information about the Mongrel Mob to the Police and hand over the Mob armoury which Mr Hewison controlled in return for the Police paying him a sum of money. As will be seen, there is deep dispute between the parties as to the terms of the agreement - but it is common ground that an agreement was made.

[3] Secondly, although when the hearing began Mr Hewison’s pleadings included claims for general, compensatory and punitive damages, those were abandoned leaving only claims for declarations under the Declaratory Judgments Act 1908 as to the terms of the agreement between the parties and that the Police were in breach of that agreement together with a claim for costs on a solicitor client basis under s 13 of that Act. Aspects of that relief may require consideration later in this judgment.

[4] Thirdly, Mr Hewison and his family have resided in Australia ever since relocating to that country in December 1997. Mr Hewison has yet to be granted residency in that country - another topic which requires further discussion - and if he is unsuccessful in his application in that respect, the likelihood is that he will be deported to New Zealand. If that occurs, he fears that the Mongrel Mob will exact retribution on him and his family for actions in late 1997. The Police recognise that possibility, though they are confident of their ability to protect Mr Hewison and his family in this country.

[5] Fourthly, in order to allay Mr and Mrs Hewison’s fears of their being harmed if they returned to New Zealand to give evidence, a consent order was made before the hearing permitting Mr and Mrs Hewison to give their evidence by way of a video link from a location in Australia broadcast through a television set in the courtroom. The television screen included sub-screens showing counsel, Judge and, during presentation of the Police case, witnesses. The two-way audio link by which Mr and Mrs Hewison had given their evidence in chief and been cross-examined was truncated at the conclusion of their evidence for the rest of the second day and the whole of the third day of the hearing so that they could see and hear events in the courtroom and that those in the courtroom could see but not hear them. There was no link on the fourth day.

[6] A fifth unusual feature warrants noting. It is that Mr Hewison has twice given interviews to television channels and participated in television programmes about the matters which are at the heart of this case. The first was in a programme called “20/20” broadcast in March or April 1998. The second interview occurred following the hearing of this case but during the period that judgment was reserved and when it was in draft. It was broadcast on a programme called “60 Minutes” on 22 April 2001. Though unknown to the Judge during the hearing, it transpired that the video link including the sub-screens had been recorded at Mr Hewison’s instigation and expense. On 6 April 2001 “60 Minutes” sought the Court’s approval to use parts of the recorded video link evidence including the sub-screens in its programme. Though expressing concern about not being advised of the recording being made, the Court granted the application to the extent that it felt able on the basis that the recording was Mr Hewison’s property. (See judgment of Williams J of 6 April 2001). It is appropriate to record that the Court has not watched either broadcast and that it reached its conclusions and had already drafted this judgment prior to 22 April 2001. It is regretted that pressure of other commitments delayed delivery.

Events of November/December 1997

[7] Mr Hewison, now 37 years of age, was born in New Zealand but lived in Australia for nearly a decade up until 1982. He became a morphine addict in Sydney and joined the Mongrel Mob on his return to New Zealand partly, he says, to help him overcome that addiction. He gained his “patch” within a year of joining and remained a member of the Mongrel Mob for about 15 years rising through its ranks and becoming acting Vice-President of the Upper Hutt Chapter and its armourer. During that time he accumulated about 30 convictions including some for serious offences such as being armed with intent to break and enter, robbery, injuring with intent to cause grievous bodily harm, discharging a firearm in a dangerous manner and unlawful possession of a pistol. He was imprisoned on several occasions.

[8] In about 1993 a Fisheries officer who apprehended him poaching paua encouraged him to take up commercial diving. His instructor and other commercial divers later suggested he quit the Mongrel Mob and take up commercial diving for a living. Because opportunities for such a career are severely limited in New Zealand, Mr Hewison knew that commercial diving would almost certainly require him to shift to Australia and apply for residency. He knew the result of such an application would be problematic given his convictions in New Zealand.

[9] His concerns about the possibility of achieving residency in Australia were confirmed when he was interrogated on arriving in Sydney en route to Indonesia in 1996. Although ultimately permitted to complete his journey, he was told he would need a visa should he ever try to return to Australia.

[10] In 1996 he met and began a relationship with the woman who is now his wife. She got on well with his children who were in his care. She was aware of his gang membership and his criminal history but had had no involvement in either. They lived together from about mid-1997. They have since married and have a child. Mr Hewison knew that such a relationship was likely to be jeopardised were he to remain a Mongrel Mob member.

[11] In early November 1997, a professional diving associate offered to put Mr Hewison in touch with the Police to help him quit the Mob and leave New Zealand. Though nervous at the prospect because the “Mob’s number 1 rule is ‘no narking”’, Mr Hewison agreed and said he shortly afterwards received a telephone call from Detective Inspector Quinn. They agreed to meet.

[12] There then followed a series of meetings between Mr Hewison and various senior Police Officers. Mrs Hewison also met a Detective Sergeant Porter on one occasion. It is agreed that Mr and Mrs Hewison and the children left New Zealand and flew to Sydney on 18 December 1997 and that two days beforehand the Police paid Mr Hewison $6,300 to reimburse him for the air tickets and provide him with about $1500 in “spending money”. He may also have taken money from the Mongrel Mob. But the parties disagree on the number and dates of the meetings, who was present and, more particularly, what was said. There was not even unanimity between the Police Officers on those topics. And, apart from a transcript of one conversation surreptitiously recorded by Mr Hewison and parts of which are challenged by the Police, all participants are almost wholly relying on memory. Almost nothing whatever appears to have been recorded in any way by anybody at the time.

[13] Mr Hewison dates his first meeting with Det Insp Quinn as 24 or 25 November 1997 when the Detective Inspector picked him up in Petone and drove him to Police National Headquarters where they spent about an hour talking generally about Mr Hewison’s reasons for approaching the Police, what information and weapons he could hand over and his concerns for his safety and that of his family were the Mongrel Mob to discover that he had given information to the Police. Mr Hewison said that he told Det Insp Quinn of his wish to be relocated to Australia to avoid retribution and the difficulties he had encountered in Sydney the previous year. Mr Hewison said Det Insp Quinn was already aware of the 1996 incident. Mr Hewison said he also told Det Insp Quinn that he would not agree to give evidence as a witness in relation to any of the information but that the information he could hand over would be sufficiently valuable to obviate the need for him so to do.

[14] In accordance with case management requirements, the Police served Mr Hewison’s counsel with a brief of evidence for Det Insp Quinn. During the hearing they indicated that they did not intend to call him. Mr Hewison wished to have his evidence before the Court. After some procedural difficulties, that matter was resolved by a consent order granting Mr Hewison leave to call evidence in rebuttal by way of furnishing Det Insp Quinn’s brief of evidence to the Court as evidence and truth of its contents on the basis that counsel for the Police did not wish to cross-examine.

[15] Det Insp Quinn’s brief said that his first contact with Mr Hewison’s friend was on 24 November 1997 and that he was told that Mr Hewison wanted to leave the Mongrel Mob and “relocate where the gang could never find him”. Det Insp Quinn said the first contact between Mr Hewison and himself came - contrary to Mr Hewison’s recollection as to how contact was initiated - when Mr Hewison telephoned him the same day and that, again contrary to Mr Hewison’s recollection, they had a lengthy telephone conversation in which Mr Hewison confirmed his wish to leave the gang, offer information on the gang’s armoury and go to Australia with his wife and children. As Det Insp Quinn’s brief put it

“I told him that these things needed to be discussed at length at our meeting but it was not impossible for us to organise relocation to Australia but that it was likely we would consider other parts of New Zealand as being better propositions.

There are avenues open Government to Government for witnesses who are under protection through the Witness Protection Scheme or if intelligence suggested that there was a threat against their life or their immediate family.”

[16] At the conclusion of the next and most important meeting which Mr Hewison dated as taking place a couple of days after his first contact with Det Insp Quinn, Mr Hewison’s brief said that he believed he had a binding agreement with the Police in the following terms

“(i) that the Police would relocate myself and my family in Australia;

(ii) that the Police would provide me with a new identity and would supply a new passport and driver’s licence to verify that identity;

(iii) that the Police would protect myself and my family while we remained in New Zealand;

(iv) that the Police would provide me with a Police contact in Australia who would protect us while we were over there if we had any concerns;

(v) that the Police would pay for our relocation to Australia and would continue to support me financially until after I had completed my . . . course, and commenced paid employment; and

(vi) that, in return, I would provide the Police with as much information about the Mob as I could give them, and that I would also surrender to them all of the firearms and ammunition belonging to the Mob that I had in my possession”

[17] That description may be contrasted with the terms of the contract pleaded in his initial claim filed on 18 August 1998 which read:

“(a) That the plaintiff would fully co-operate with the Police providing all information available to him regarding his knowledge of the Mongrel Mob, including information in relation to the use and supply of illegal drugs, use of firearms and the gang’s illegal activities, Triads, the Hell’s Angels gang, drug dealers, and corruption within the Justice Department.

(b) In consideration for the plaintiff providing the information referred to in the preceding subparagraph at the risk of his personal safety the New Zealand Police would:

(i) put the plaintiff in a Witness Protection programme;

(ii) pay to the plaintiff an unspecified sum but sufficient to enable him to re-establish himself in Australia and to give him sufficient capital to establish a new career;

(iii) attend to all issues in relation to a visa to enable his relocating (sic) to Australia.”

[18] Mr Hewison’s first amended statement of claim filed on 14 June 1999 expanded para (b) (ii) to claim a reasonable sum for the services provided by him and expressly included his costs of obtaining qualifications and removing tattoos as part of the capital required to establish his new career.

[19] The hearing proceeded on Mr Hewison’s second amended statement of claim filed on 15 March 2001 in which the agreement between the parties was pleaded in the following terms:

“2(i) The plaintiff would fully co-operate with the Police and provide the Police with all information available to him regarding his knowledge of the Mongrel Mob;

(ii) The plaintiff would surrender to the Police all of the firearms and ammunition belonging to the Mongrel Mob that he had in his possession;

(iii) In consideration for the plaintiff providing the Police with the information, and surrendering the firearms and ammunition referred to above, the Police would:

(a) permanently relocate the plaintiff and his family in Australia;

(b) provide the plaintiff with a new identity;

(c) supply the plaintiff with identification, including a new passport, to support his new identity;

(d) provide protection for the plaintiff and his family while they remained in New Zealand;

(e) provide the plaintiff with a Police contact in Australia who would protect him and his family if they had any concerns while they were in Australia;

(f) pay the costs of the plaintiff’s relocation to Australia; and

(g) continue to support the plaintiff and his family financially until after the plaintiff obtained his . . . qualifications and commenced paid employment.”

[20] Broadly put, the defence to Mr Hewison’s claim ever since mid-1999 has been to admit that the parties reached an agreement but to say that the terms of the agreement were rather different from those claimed by Mr Hewison. The statement of defence filed on 23 March 2001 admitted that the agreement included the terms pleaded in paras 2(i) (ii) and (iii)(d) but said the other terms of the contract were:

(a) to protect Mr Hewison and his family in New Zealand;

(b) to assist Mr Hewison and his family with air fares and incidental allowances to travel to Sydney and thence to Brisbane;

(c) to assist in the urgent obtaining of passports for Mr Hewison’s children and advice as to his obtaining entry into Australia with an offer to provide Australian immigration authorities with a letter if required;

(d) para (iii)(e) was admitted, other than to say that the Australian contact would offer assistance rather than provide protection for Mr Hewison and his family; and

(e) the Police specifically denied any agreement to provide Mr Hewison with a new identity, passport, visa or financial support after the family’s departure from New Zealand.

[21] Turning to the evidence on the terms of the agreement, Det Insp Quinn said that he spoke with other Police Officers, picked up Mr Hewison on the morning of 25 November 1997 and travelled with him to Police National Headquarters during which trip Mr Hewison repeated the offers he had made over the telephone and reiterated his wish to transfer to Australia as soon as possible. Det Insp Quinn’s brief said that he told Mr Hewison:

• “We could make no guarantees that he would be able to enter Australia.

• That we would try and get him into Australia legitimately and if that failed there were some other options we might try.

• We would move him with his family.

• That we would not relocate him until the end of the summer.

• That I wanted him to remain in the gang until then to supply information.

• That he should consider other possible locations in New Zealand for his relocation.”

[22] Det Insp Quinn then introduced Mr Hewison to Det Snr Sgt Small, Det Sgt Porter and Det McGhie, all senior officers at Police National Headquarters in its Intelligence Section. They had previously agreed that Det Sgt Porter would be the principal contact with Mr Hewison with assistance from Det McGhie and with the matter being overseen by Det Snr Sgt Small. According to Det Insp Quinn he told Mr Hewison in the presence of the others that getting him away from the gang and his safety and that of his family were paramount and that any information he could supply them was secondary. His brief went on to say that he told Mr Hewison that he saw the matter as a “coup” for the Police against the Mongrel Mob. Det Insp Quinn then left the meeting.

[23] Mr Hewison times the second meeting as being a “couple of days” after the first. He acknowledged that Det Insp Quinn introduced him to the three officers mentioned and that Det Insp Quinn subsequently had almost no involvement in the matter. He said that he repeated what he had told Det Insp Quinn at the first meeting and what was pleaded in his latest claim, namely, that he wished to have his family and himself relocated to Australia with a new identity, new passport and new driver’s licence - not matters to which his brief said he had referred in the first interview - and again went over the 1996 Sydney incident. Mr Hewison agrees he was told the Police would “take care of it” and “if they could not get me into Australia legitimately then they would get me in some other way”, but said it was Det Snr Sgt Small who said this not Det Insp Quinn whose brief indicates he gave Mr Hewison this information before he introduced the other officers.

[24] Mr Hewison said that he was assured that the Police could organise the removal of his tattoos as they had done for others and that Det Snr Sgt Small reassured him about safety and told him if he had concerns on that score while still in New Zealand the family could go to a motel at Police expense. It was, Mr Hewison said, again Det Snr Sgt Small who told him he wanted him to remain in New Zealand until the end of the summer, providing information throughout. He told them they wished to leave before Christmas. He said the officers present offered Police assistance for him to get the qualifications he needed for his career, that they would give him the name of an officer who could assist him in Australia in the event of difficulties and that “once I started working they would slowly back out and leave me to it”. It was Mr Hewison’s recollection that Det Snr Sgt Small said that the Police were “talking about ‘thousands and thousands of dollars’ to re-situate us in Australia” and that his understanding from the discussion was that the “Police would pay to relocate my family to Australia and would provide the necessary funding until I was able to earn a permanent income”. He said the meeting closed by the Police giving him a code-name, Det Sgt Porter’s home telephone number, and asking him to provide information on two prison escapees. One, he said, may already have been recaptured but he claimed he gave the Police information which led to the recapture of the other the following day.

[25] Det Snr Sgt Small said that the meeting under discussion took place on 28 November 1997 and that after Mr Hewison’s motivation to approach the Police had been canvassed, he was told that rules would have to be agreed if the Police were to enter into any “arrangement with him in respect of information of this strategic value”. Det Snr Sgt Small said the discussion centred around Mr Hewison’s wish to leave the Mongrel Mob and transfer to Australia and the Police preference for him to be relocated within New Zealand and the protection the Police would be able to provide arose because “we had no ability to relocate him in Australia” and that, if he insisted on travelling there “we would only be able to assist him to the point where he departed New Zealand”. He said that the name of the New Zealand Police Liaison Officer in Australia, Det Insp Manning, was mentioned as able to provide assistance and that, because of the danger to which Mr Hewison and his family would be exposed, the Police said they wished to meet Mrs Hewison. The recollections tally as to Det Sgt Porter being nominated as the main point of contact between the Police and Mr Hewison. On the question of remuneration, Det Snr Sgt Small said that no figures were mentioned: Mr Hewison was told it would depend on the nature and value of the information provided but that if it was accurate and of strategic value he would be paid a “significant financial reward . . . sufficient to finance him and his family’s passage to Australia”. The Police said they would also help with security for his home in New Zealand and that “if we were requested to vouch for his bona fides by the Australian authorities we would do so”. Det Snr Sgt Small denies any discussion about the provision of a new identity in Australia, or whether Mr Hewison would be a witness since in the Police view he was only ever to be regarded as an informer. He denied there was any mention at that meeting of the 1996 Sydney problem. He said Mr Hewison had commenced having his tattoos removed and the only comment on that subject was as to progress. He denied any offer about motel expenses. He said there was no discussion about Police assistance to obtain qualifications, no code-name was agreed upon, and there was no discussion about prison escapees. Det Snr Sgt Small specifically denied:

[a] The suggested comment that the Police would arrange his entry into Australia, “if not legitimately then some other way”;

[b] Ever mentioning the phrase “thousands and thousands and thousands of dollars”, going so far as to say there was no discussion as to funding their relocation in Australia other than as mentioned above;

[c] That there was any binding arrangement at the conclusion of the meeting, Det Snr Sgt Small asserting that all that was said was that the Police were interested in the information Mr Hewison was probably able to provide, anticipating it would be of value to the Police and that, if it was, he would be financially rewarded.

[26] In cross-examination, Det Snr Sgt Small asserted that the “deal” was not concluded until Mr Hewison had provided the information and the Police had decided how much to pay and that, on 28 November, Mr Hewison would have had no idea of the amount he would receive though “should he choose to pursue his desire to relocate in Australia it would probably be sufficient to finance that relocation”. There had been no love lost between them before that meeting but Det Snr Sgt Small said he thought Mr Hewison understood from the meeting the need for him to trust the Police. Det Snr Sgt Small was thinking of $4000-$5000 but said nothing to Mr Hewison about amount. He thought exiting the Mongrel Mob was a greater motivation for Mr Hewison than money although the latter was important because he was unable to “simply uproot himself and relocate in Australia without financing that process”. Det Snr Sgt Small said they discussed difficulties Mr Hewison might have entering Australia because of his convictions but he continued to deny that there was any discussion of the 1996 incident. Although he knew Mr Hewison’s information was likely to be valuable, he said he made no offer to assist Mr Hewison enter Australia partly because he “did not have the ability to facilitate that”, partly because Mr Hewison’s criminal history may have ultimately prevented him obtaining residence and also because it is “not policy within the Police to go through a process of relocating persons with all the financial implications of that outside New Zealand”. Rather than emphasise the difficulties Mr Hewison might face with the Australian authorities, Det Snr Sgt Small said that those present at the meeting discussed the matter positively and in particular how the Police could assist with putting him in touch with the New Zealand Police Liaison Officer and giving him a letter to the Australian border authorities which he thought would improve Mr Hewison’s entry chances.

[27] Although acknowledging that informants who have given significant or important information to the Police and are consequently at risk in this country have occasionally been relocated to Australia and other countries with the assistance of the New Zealand Police and the co-operation of the authorities in the host countries, Det Snr Sgt Small nonetheless insisted throughout his evidence that the infrequency and complexity of such results, what he regarded as being the low likelihood of Mr Hewison’s being accepted into Australia and the fact that at that stage, though the Police anticipated that Mr Hewison’s information would be of significant value, they were unaware whether that anticipation would come to fruition, all led to discussion as to what assistance Police might give Mr Hewison to enable him to pass the Australian border authorities, but none as to assistance Police might render to enable him to obtain permanent residence.

[28] Det Sgt Potter also said that his initial meeting with Mr Hewison over this matter occurred on 28 November 1997 and that, after Det Insp Quinn’s introduction only he and Det Snr Sgt Small were in the room. Det Sgt Porter said that the discussion began with Mr Hewison’s wish to change his lifestyle and his wish to “get the assistance of the New Zealand Police so that he can get into Australia and disappear” but that he was told that the Police could not assist him to enter Australia and he would be on his own when he left New Zealand though he did acknowledge that may have heard Det Insp Quinn make the comment about getting him into Australia legitimately or by other means.

[29] Det Sgt Porter’s recollection of events at the 28 November meeting was that the 1996 Sydney incident was discussed, the tattoo removal was first raised at a later meeting, Mr Hewison’s obtaining qualifications and work was discussed but there was no offer by Police to finance his course and that, although he was given a codename, it had a different connotation from the one for which Mr Hewison contends. He acknowledged that a direct phone number was given to Mr Hewison but says Mr Hewison is incorrect about the escapers. The Detective Sergeant expressly denied the making of the comment about “thousands and thousands and thousands of dollars”. He said no offer was ever made of a new identity, passport or driver’s licence. The agreement was that the Police would pay for information provided but no amount was mentioned and there was no assurance as to relocation.

[30] Det Sgt Porter kept what he called a “current event log” of his contacts with Mr Hewison by entering summaries of the events in his computer as a contemporaneous record. The Detective Sergeant said he did not later alter those entries but it became clear during the hearing that such was not invariably the case: some entries were added later than the day on which they occurred and some were later altered. In any event, the entry dated 28 November 1997 contains nothing as to the terms of the arrangement between the parties reached at that meeting.

[31] Det Sen Sgt McGhie did not give evidence.

[32] The evening following his first meeting with the Police Mr Hewison sought Mrs Hewison’s reaction to the possibility of his leaving the gang and their travelling to Australia to live. She supported the former but was lukewarm about the latter. She agreed to meet Det Sgt Porter.

[33] The meeting took place at a Lower Hutt Shopping Centre. Det Sgt Porter said it occurred on 1 December. Mrs Hewison thought it occurred later that month. Mrs Hewison said she told Det Sgt Porter of her concerns about security and money and was assured that “there would be no problem about money and that we would be relocated” because the Police would pay the air fares and would give them “money to live off” until Mr Hewison found work. They discussed arrangements for the Police to send their belongings to Australia, to terminate electricity and telephone connections and the like, and arrangements for Police to uplift Mr Hewison’s Mob memorabilia. Mrs Hewison said she expressed concerns as to her ability to leave New Zealand as she was then bankrupt following a failed business relationship but Det Sgt Porter assured her he would resolve that matter. Mrs Hewison knew of the 1996 Sydney incident and the difficulty Mr Hewison might encounter on entering Australia, but was reassured by Det Sgt Porter that if Mr Hewison “could not get through on normal channels and if he was turned around at the border they would bring him through on Government diplomatic channels”. She guessed that all the arrangements she understood the Police were making might cost in excess of $50,000 but agrees no figure was mentioned.

[34] Det Sgt Porter’s recollection of the meeting differed from that of Mrs Hewison in that he denies any discussion about a new identity, payment of air fares or money to “live off’, though he accepts her recollection of the discussions as to the household arrangements - which he says the Police honoured contrary to Mrs Hewison’s evidence - and the sale of the house. He denied any discussion about continuing support in Australia and in particular denied any statement about Police arranging for Mr Hewison’s entry to Australia through Government diplomatic channels if he failed to pass border control. He said that he told her there would be “sufficient money to cover their air fares to Australia with a little bit of spending money at the other end.” He also relied on his event log for 1 December which contains the entry that Mrs Hewison was advised “that we cannot and will not guarantee their or [Mr Hewison’s] entry into Aust. due to immigration in Aust. stance at the moment on people entering there.”

[35] The parties agree that Mr Hewison had a number of subsequent meetings with the Police at which he gave them information concerning the Mongrel Mob, its organisation and activities. A certain amount of detail was given in evidence at the hearing. The interviews were recorded and transcribed following which the tapes were apparently wiped. The transcript was read by Master Kennedy-Grant in the course of the learned Master upholding on 3 November 1999 the defendant’s claim to public interest immunity against the discoverability of the transcript. The transcripts were not put in evidence at this hearing but the Court notes the learned Master’s observation (para 16) that the transcript contained nothing relevant to the terms of the contract between the parties. Mr Hewison’s view was that he was full and frank with the Police with the information he gave, answered all their questions comprehensively - though there was disagreement between the parties during the period of the interviews as to whether the Police were asking pertinent questions - and that his information was beneficial and valuable to the Police. In evidence at this hearing, the Police tended to denigrate the worth of Mr Hewison’s information and the frankness of his answers, saying that they formed the view during the interviews that he was withholding information that should have been given. Sensibly, the parties agreed that the worth or value of Mr Hewison’s information would not be amongst the issues the Court was asked to decide. It is, however, of some interest to note that the Police do not deny Mr Hewison’s assertion that even at the early meetings Det Sgt Porter was describing Mr Hewison’s information as “dynamite”.

[36] At a fairly early point in the interviews, probably on 4 December, Det Sgt Porter and Mr Hewison discussed passports. Mr and Mrs Hewison had current passports but the children had none. Mrs Hewison prepared the necessary applications, gathered together the documents required and Mr Hewison handed them together with the couple’s passports to Det Sgt Porter, probably on 9 December. It was common ground that the children’s passport applications were lodged with the authorities by the Police and processed quickly. Det Sgt Porter said that he required Mr and Mrs Hewison’s passport simply to check their currency for at least six months after departure, but Mr and Mrs Hewison said they thought Mr Hewison’s passport was being handed over for him to be given a new identity. How they could conclude that such could be accomplished without any further participation by them was not explained, particularly when they did not suggest that something as basic to a change of identity as a new name was ever discussed. Det Sgt Porter said he handed both the Hewisons’ passports back to Mr Hewison immediately on perusing them. They both deny that. The Court considers it more likely that the Hewisons’ passports were returned to them with those issued for the children.

[37] At much the same time, there were discussions about the family’s departure date. There was a major disagreement over bookings. At an interview which probably took place on 10 December 1997, Det Sgt Porter told Mr Hewison that it was impossible to get seats for the family to fly to Australia prior to Christmas. Mr Hewison was furious. He accused Det Sgt Porter of lying. He stormed out of the meeting believing that the Police were renegueing on the arrangement. His suspicions were heightened when later that day he was able, without difficulty, to obtain bookings through a travel agency for the whole family to fly to Australia prior to Christmas. He telephoned Det Sgt Porter and again accused him of lying. Mr Hewison said he would give the Police no further information until he had spoken to Det Sgt Porter’s superior, Det Insp Ronald.

[38] Det Sgt Porter’s event log records the early termination of the interview on 10 December because of Mr Hewison’s “not being satisfied that the Police would fulfil their side of the contract and make a payment”.

[39] Mr Hewison said that in the telephone conversation with Det Sgt Porter in which he accused him of lying about the booking, Det Sgt Porter said “That’s what they told me upstairs”. It seems that what occurred was that Det Sgt Porter tried to make bookings through the Police travel section which is able to utilise seats apparently preferentially reserved on most international flights for Government Departments and was told that no such seats were available prior to Christmas. He passed that information on to Mr Hewison. It seems, however, that Det Sgt Porter did not give Mr Hewison the detail that he had tried to utilise the reserved Government seats and did not try booking through an ordinary travel agency.

[40] The parties are agreed, however, that a meeting took place on 11 December 1997 between Mr Hewison and Det Insp Ronald. Det Sgt Potter introduced them and was again present during the latter part of the interview. What the Police did not know was that Mr Hewison was recording the meeting through a concealed microphone. The recording - by now transferred by the Police onto CD-Rom - was played at the hearing and a transcript prepared by Mr Hewison was produced. Unsurprisingly, the sound quality was indifferent. More importantly, the transcript was challenged by the Police as omitting words from a number of passages, particularly those which they said contained comments adverse to Mr Hewison. They asserted he wiped them. However, the transcript contains the following passages of relevance to this matter:

[a] Det Inspector Ronald was recorded as saying, “this is going to cost the Police being me with money to resettle you in Australia and I say that without reservations . . . I am not talking about half a million bucks.”

[b] Mr Kleintjes, a Chief Technical Investigator for the Police in forensic electronics, said that there was a 6-second over-recording section at about the phrase “with money” and Det Insp Ronald said the inaudible words or over-recorded words which followed the word “resettle” covered his speaking of the fares being paid plus an amount of money for the Hewisons’ initial period in Australia.

[c] Det Insp Ronald explained the preferential booking system for Government Departments.

[d] Det Insp Ronald also explained that Police intelligence was divided into operational, tactical and strategic intelligence and the information they were seeking from Mr Hewison was in the second and, more particularly, the third category.

[e] In warning Mr Hewison of the likelihood of deportation should he reoffend in Australia, Det Insp Ronald spoke of “guys that have gone off and are protected witnesses that were bundled off to Aussie.” He denied in evidence that Mr Hewison may have inferred from the reference to being “bundled off to Aussie” that something similar was in contemplation for him.

[f] Det Insp Ronald said that “the best point of entry for you going into Australia would be Sydney” rather than Brisbane for reasons which he gave and that with “Sydney there will be no problem going in there” because the chances of Mr Hewison “getting turned around” were less. Det Insp Ronald said that Mr Hewison should have taken from that remark nothing more than basic assistance with his passing border control.

[g] After Mr Hewison told Det Insp Ronald that the seats had cost in the vicinity of $3,667 Det Insp Ronald said that the Police were “going to give you some money to get started . . . to make sure you have got enough cash to cover that internal travel . . . and get organised.” Mr Kleintjes said there were over-recordings, the longest of 3 1/2 seconds, in that section. Det Insp Ronald said that the missing portion covered the period where he said that the amount for internal travel would have been of the order of $1000-$1500, a figure he arrived at as the approximate difference between the fares and the $5,000 he had mentally allocated for the operation from his budget. He claims therefore that Mr Hewison knew, at least from that point, that payment of the fares plus about $1,500 was the most the Police would pay (although that was later increased by the Police paying for return airfares to make the family’s entry into Australia more likely). Det Insp Ronald adhered to his view that he had expressly told Mr Hewison that the maximum Police assistance available would be to pay the family’s fares plus cash of the order of $1,500 despite the lack of any reference to what he says was that agreement or understanding or of any specific sum in any subsequent memoranda or reports he wrote in response to Mr Hewison’s complaints after his arrival in Australia.

[h] Det Insp Ronald gave Mr Hewison the names of New Zealand Police officers in Australia to contact because “as soon as you . . . get away from here you are not going to have much more to do with us.” Det Insp Ronald denied that comment was intended to lead Mr Hewison to believe he would get into Australia, Det Insp Ronald taking the view that Mr Hewison throughout had a stronger belief than the Police that he would pass border control.

[i] Mr Kleintjes said that there were seven erased sections totalling 22.5 seconds on the tape. Some were over-recorded more than once. Mr Hewison asserted that all erasures were accidental and occurred when he was later playing portions of the tape to Det Inspector Manning and others. In the Court’s view whilst some of the brief over-recordings may be explicable as having been caused accidentally as Mr Hewison says, as a matter of credibility, first, it seems surprising that he made no second copy of what he must have known very quickly was a valuable tape and, secondly, that the longer over-recordings may well have been of portions of the tape against his interests. Those are matters which the Court can take into account in deciding on the terms of the arrangement between the parties but, Mr Hewison having abandoned all his monetary claims, it is unnecessary for the Court to go further than that.

[41] Of relevance to the question of the terms of contract, Mr Hewison claimed he did not believe what Det Insp Ronald told him and only recorded the interview for peace of mind. He did, however, acknowledge that the question of a visa and new identity were never mentioned and, apart from his advice as to the cost of the tickets, there was no mention by him of any sum of money for his course, the relocation or the living expenses. He explained that by saying the purpose of the meeting was to reinstate the arrangement following the disagreement over the air bookings.

[42] Mr Hewison and Det Sgt Porter both agree that several further interviews occurred. During one, Mr Hewison said that he declined an offer to be admitted to the witness protection programme. Det Sgt Porter said no such offer was made since Mr Hewison was never to be a witness and thus did not come within the scope of the programme. He also said that, had Mr Hewison not disclosed his role as an informer the Mongrel Mob would never have ascertained the position, a proposition which seems doubtful. It certainly seems to be the case that Mr Hewison was most unlikely ever to come within the definition of a “witness” in the Police manual dealing with the witness protection scheme. He was thus ineligible for relocation under that scheme. The Court accepts that differences in Police handling of witnesses requiring protection as opposed to informants in the same situation was not pointed out to Mr Hewison if for no other reason than that he and the Police all knew that he would not give evidence and thus would not come within the witness protection scheme.

[43] During these discussions, Mr Hewison said that Det Sgt Porter asked him to hand over his Mob memorabilia including his “patch”, a flag and some photographs for the Police museum. Det Sgt Porter said Mr Hewison offered to hand over that material because he was starting a new life and having such material with him might increase his chances of being stopped at border control if he were searched.

[44] There is also a difference of view as to whether Det Sgt Porter knew Mr Hewison was on bail on a firearms charge at the time. Whatever the correct position on that, the parties agree the charge was withdrawn.

[45] On 15 (Det Insp Ronald) or 16 (Mr Hewison and the receipt) December, Det Insp Ronald paid Mr Hewison $6300 in reimbursement of the return airfares of $4786.60 and what Mr Hewison said he was told was a “bit of spending money”. Mr Hewison said he regarded that as an initial contribution only.

[46] Mr Hewison also said that he received the passports that day and was annoyed to find that his identity had not been changed. As earlier noted, Police evidence was that it was only the children’s passports who were handed over at that stage but Mr and Mrs Hewison’s passports may well have been returned at the same time.

[47] On what appears to have been 16 December Mr Hewison handed Det Sgt Porter, the Mongrel Mob’s armoury. It is unnecessary to record the detail other than to note that it included two pistols, two rifles, a shotgun and an inventory of ammunition and other items extending over six pages and described in a letter from Det McGhie written on 6 January 1998 as “quite extensive” and as likely to “make a considerable impact at street level to the gang situation.” The parties disagree as to its worth, Mr Hewison saying its value was between $30,000-$40,000 and the Police assessing it as being worth a quarter of that. The Court is not called upon to decide that difference of view.

[48] The last interview was on 17 December. Apart from clarifying details of the information earlier provided it dealt with housekeeping matters including how to mask Mr Hewison’s tattoos, security of his property, the closing of bank accounts and, according to Mr Hewison, repetition of the advice that if he was refused entry into Sydney he should accept his return to New Zealand and the Police would then undertake a different approach to getting him into Australia.

[49] The Hewison family spent that night at a motel. Det Sgt Porter and Det McGhie took them to the airport early next morning.

[50] Mr Hewison was detained at Kingsford Smith Airport in Sydney after declaring his convictions. The Australian immigration authorities sought confirmation of Mr Hewison’s criminal history. Police faxed them a copy of his list of convictions the same day together with a letter from Det Snr Sgt McGhie confirming that Mr Hewison had severed his links with the Mongrel Mob and generally speaking of him in laudatory terms. The letter included the comment that following the 1996 incident “he was assessed as no longer a threat to the border.” Australian immigration then granted Mr Hewison a 30-day visitor’s visa and the family travelled first to see Mr Hewison’s mother and later to their present location. Mr Hewison telephoned Det Sgt Porter that day, not so much to confirm his entry but to complain at receiving only a visitor’s visa. He was told, he said, that the Police would sort it out after Christmas. Det Sgt Porter disagrees. He said his response was that the matter would have to be sent to the Police Liaison Officer in Canberra who would make “tentative inquiries to see if we can get the 30 day visitor’s visa converted to a permanent open-ended visa.” He agreed that when Mr Hewison telephoned him he told him that he was “on his own”, but said that was no more than iteration of the Police attitude throughout if Mr Hewison insisted on travelling to Australia. Mr Hewison said that he was assured several times by telephone not to worry about the visa.

Events in and following January 1998

[51] Mr Hewison and the Police agree that one aspect of their arrangement was that the Hewisons should tell no-one in New Zealand of their intention to leave this country nor of their whereabouts in Australia.

[52] Before she left New Zealand Mrs Hewison in fact telephoned her aged grandmother who raised her. But, very much more importantly, shortly after what Mr Hewison saw as Police failure to take any effective action to secure his residency in Australia, he telephoned an alleged drug dealer contact in New Zealand and then unsuccessfully endeavoured on a number of occasions to telephone the
Commissioner of Police. He then contacted the “20/20” programme on TV3 to explain his predicament. His approach to television and its approach to the Police sparked an internal Police inquiry and contact from Det Insp Manning in Australia.

[53] Mr Hewison met Det Insp Manning and played him the tape of his conversation with Det Insp Ronald. As a result of discovery, Mr Hewison is now aware that his approach led to Det Insp Manning writing a number of letters sympathetic to Mr Hewison’s position at least to the point of suggesting that the Police should meet the cost of his course and living expenses to avoid embarrassment and possible television publicity. Det Insp Ronald disagreed and the officer-in-charge of the investigation supported him.

[54] The “20/20” programme concerning Mr Hewison was broadcast in March or early April 1998. As noted, the contents are unknown to the Court. The Police take the view that Mr Hewison put himself and his family at risk by being interviewed for the programme. Mr Hewison takes the view that it was impossible for him to remain in New Zealand once he had given information to the Police and that he was left with no realistic alternative to publicising his plight by reason of what he saw as Police failure to comply with the arrangement.

[55] Mr Hewison also pursued a number of other avenues which he hoped would lead the Police into taking a more active stance in assisting him getting residency. They include a complaint to the Police Complaints Authority, requests under the Official Information Act 1982 and seeking Police assistance to re-enter Australia if he returned to New Zealand and changed his name by deed-poll. He also wrote letters to the Commissioner of Police and to a number of other influential persons in Australia and New Zealand from the Governors-General, Prime Ministers and Attorneys-General down. He has, of course, also pursued this litigation.

[56] Mr Hewison said local Immigration officials whom he contacted shortly before the expiry of the 30 day visitor’s visa told him that he would be able to stay in Australia on witness protection grounds if the Police so requested. He managed to get a 6-months’ student visa whilst he obtained his qualifications. He now resides in Australia on a refugee visa with a special dispensation allowing him to work. But his visa is under appeal and his appeal rights are almost exhausted. If his last appeal is dismissed and he is unsuccessful in obtaining residency by any other means, the likelihood is that he will be deported to New Zealand with the acknowledged risk of harm from the Mongrel Mob to him, his wife and his family should that occur.

[57] From documents now discovered, Mr Hewison takes the view that the Police either never had any intention of relocating him or that, after making inquiries following entering into the arrangement with him, they found it was unlikely that residency could be obtained and abandoned the attempt and not only did not tell him but continued to assure him to the contrary.

A Relocation Policy?

[58] It remains to add that, as acknowledged by Police officers who spoke with Mr Hewison, documents put in evidence show that Police have on occasions relocated witnesses or informers to Australia. It must, however, at once be said that those documents say that as a general principle witnesses and informers should not be assisted in such relocations and that it is not practical for such to occur “without the required support to successfully establish themselves within their new location and to not draw upon themselves unwarranted attention.” They say that a proper assessment as to suitability should be undertaken before any agreement to relocate is made, particularly because of possible criminal liability on the Police for assisting such persons to evade Australian immigration requirements. The earliest document, a report from the Police National Bureau of Investigation Support of 19 February 1998, said that:

“It is most unlikely that any witness/informer that does not meet [Australian] immigration criteria will be granted a visa.”

[59] The report discussed relocations by witnesses and informers under new identities without disclosing previous convictions and emphasised the undesirability of the New Zealand Police involving themselves in such practices. It went on to discuss practical problems such as obtaining Police liaison support in the host state over such matters as accommodation, employment and benefits but commented that:

“Each request would need to be assessed on the merits of the individual requesting relocation. If the Witness/Informant has a trade or is a motivated individual who has demonstrated a willingness to seek and maintain employment, then their chances of obtaining work within Australia is dramatically improved and their chances of integrating into Australian Society increased.”

Its recommendations included

“1. The New Zealand Police adopt a general principal [sic] that witnesses/informants are not relocated outside New Zealand.

2. Should a witness/informant indicate their intention of relocation outside of New Zealand and that witness/informant does not have legal right of entry, the New Zealand Police do not assist in any respect with that relocation.

3. Witnesses/informants who intend to legally relocate outside New Zealand and seek assistance from New Zealand Police are assessed and approved by the O/C : National Bureau of Investigation Support prior to any support or agreement with the witness/informant to relocate.

4. The New Zealand Police Liaison Officers based in Australia are advised and consulted with in respect of all possible relocations to that country.

5. Witnesses/informants requesting assistance from New Zealand Police with relocation must agree to partaking in a psychological assessment.”

[60] The National Crime Manager commented on the letter on 8 March 1998 and noted that witnesses had been relocated to Australia where Australian Law Enforcement Authorities had agreed to assist prior to entry. His only major difference in principle from the recommendations in the February 1998 letter was to add the phrase “to the country they intend to relocate to” after the phrase “legal right of entry” in para 2 and to reformulate the balance of that paragraph in the following terms:

“That the New Zealand Police do not assist that individual to circumvent the ordinary legal requirements.”

but it is of note that the author said:

“There may be occasions where a registered New Zealand Police informer should be assisted by the New Zealand Police to relocate to Australia, even though the informant’s background may ordinarily prohibit them from entering that country. In those instances, approaches should be made to Australian authorities for permission to relocate to Australia. Special approval has to be obtained from Australian authorities and that has been reluctantly given in the past.”

[61] The evidence did not disclose what has become of those recommendations though Det Snr Sgt Small said that such relocations as had occurred were not instigated by the New Zealand Police.

The Terms of the Contract

[62] It is convenient to deal first with all the terms of the pleaded contract other than the central issue, namely whether under clause 2 (iii)(a) of the claim (cited in para [19] of this judgment) it was a term of the arrangement that the Police would permanently relocate Mr Hewison and his family in Australia.

[63] There is no major dispute on the other terms of the contract some of which, as earlier noted, are admitted. Mr Hewison accepted that the Police would have provided protection for his family and himself whilst still in New Zealand if required, that they put him in touch with Police contacts in Australia through whom he could ventilate his concerns, that they paid the relocation costs to Australia and provided sufficient “spending money”. Though those matters are not exactly as Mr Hewison pleaded them in para 2 (iii)(d)-(g) of his latest claim they were sufficiently close for Mr Hewison to accept that they represented compliance with those terms of the agreement. At all events, he made no complaint of breach of the agreement by the Police in those respects. He was also cross-examined extensively about whether it was a term of the agreement that he be admitted to the Witness Protection programme. Since that allegation was not included in his latest claim, the Court sees no need to consider that evidence.

[64] The Court declines to accept the suggestion that it was a term of the arrangement that the Police would provide Mr Hewison with a new identity and a new passport in a new name. For reasons already discussed, Mr Hewison must have realised that changes of such magnitude or importance would have required more on his part than simply giving his passport to Det Sgt Porter. The Court accordingly declines to accept Mr Hewison’s claim as set out in para 2 (iii) (b)(c) of his claim.

[65] Determination of the dispute as to whether it was a term of the agreement that the Police agreed to assist Mr Hewison and his family to re-establish themselves in Australia needs to be put in context.

[66] Looking at the matter from Mr Hewison’s point of view, it needs to be borne in mind that when he talked to the Police and provided them with information, not only was he talking to and co-operating with those who had been literally the last people he would have been prepared to co-operate with throughout the last decade and a half of his life but, in even talking and co-operating with them, leave alone the worth of the information he was providing, he was committing the cardinal sin of the Mongrel Mob, namely “narking” to the Police. In so doing, not only was he acting entirely contrary to the way in which he, his friends and associates had behaved throughout his period of association with the Mongrel Mob but, as Mr Hewison knew even better than the Police, he was exposing himself, his wife, his family and his possessions to serious risk of physical retribution. To pursue his career and maintain his relationship with Mrs Hewison he had to cut his links with the Mongrel Mob and get to Australia to obtain qualifications and work. To get himself and his family to Australia, he needed money. To obtain money, he had to be prepared to sell his major asset, his information about the Mongrel Mob, to the only possible buyer, the Police. Once he had done that, even if he had wished to remain in New Zealand, he and his family could not realistically do so. In those circumstances, it is understandable if, first, Mr Hewison’s prime concern and the price of his providing information, was to preserve his safety and that of his wife and children by their relocation to Australia; secondly, that he was prepared to enlist Police support to enable him to pass border control without the difficulties he had encountered the previous year; thirdly, he was agreeable to receiving Police funds to assist them in their re-establishment, and, fourthly, that he may have been imprecise in the way in which he expressed what he wanted and took no notes. Such records as there are, such as the transcript of the covert recording, were expressed in the vernacular rather than contractual terms.

[67] There would have been no point in Mr Hewison entering into the agreement and continuing to provide the information which the Police requested unless he and his family were able to leave New Zealand and remain in Australia permanently. As Police witnesses agreed, though relocation within New Zealand was suggested by them, Mr Hewison rejected that proposition at an early stage of the discussions. He was risking violence and retribution to himself, his wife and family if they remained in New Zealand. Further opportunities for him to obtain qualifications and pursue a career in his chosen occupation were extremely limited in New Zealand. Given the risks that he and his family would be facing, there was no point in his travelling to Australia only to be turned back, particularly if his wife and family were allowed to proceed. What he and they wanted was assistance to enable them to enter Australia and stay there. And he knew that his background was such that he was unlikely to achieve his aim without Police help.

[68] From the Police point of view, though they may now minimise the worth of the information Mr Hewison supplied in response to their questions, at the time the agreement was reached such is highly unlikely to have been the case. They had a completely unsolicited offer to supply information from a man whom they knew to be a senior and long-standing office-holder in a gang which they regarded as comprising professional criminals engaged indefatigably in serious criminal offences and enterprises occupying a deal of Police time and manpower. They termed his approach a “coup”. They called his information “dynamite”. The importance which the Police attached to Mr Hewison’s offer is demonstrated by the fact that he was immediately interviewed by some of the most senior officers in the Police National Headquarters Intelligence Unit and the information which he was asked to provide was principally at a strategic level. In those circumstances, it is understandable that the atmosphere was, as Det Insp Ronald described it, that they were “suckered, led in, excited” and that the Police Officers involved did not wish to run the risk of Mr Hewison terminating his involvement with them by requiring the signing of a contract or by the recording of the arrangements between them in a formal way. But it has to be said that it is nonetheless inexplicable that not one of the senior Police Officers involved apparently made any contemporaneous note whatsoever as to the terms of their arrangement with Mr Hewison or, at least, none was disclosed on discovery. When they were setting out to deal with a person whose way of life for the past 15 years had been to commit crimes and outwit the Police and who was offering to provide them with information of such strategic importance, it might be thought that it would have been axiomatic that some record of the terms of the arrangement would have been kept even if, in the circumstances, it may not have been in the form of a document signed by Mr Hewison. Det Insp Ronald said it was his responsibility to get a written contract drawn up but he had overlooked it because the arrangements with Mr Hewison seemed, he said in evidence, a “simple matter”. However, even on their version of events, the Police were proposing to expend in total a not inconsiderable amount of public funds - the total amount paid to Mr Hewison or on his behalf was $8105.38 - and Police manpower on Mr Hewison and his family and were prepared to assist a long-term criminal pass Australian border control. In those circumstances, it is puzzling in the extreme that no note of any kind appears to have been kept by any of the senior officers involved of the terms of the agreement between Mr Hewison and the Police when such would usually have been commonplace for even a mundane event. The later receipts for money, drugs and the armoury confirm certain aspects of the agreement but do not substitute for some contemporaneous note of its terms. Given the alterations in the “current event log”, the Court is not prepared to place much reliance on that record, and in any event it deals mainly with aspects of the discussions rather than terms of the agreement.

[69] In all those circumstances, the Court takes the view that in the central issue in this case there was likely to have been a good deal of imprecision in the way the parties expressed themselves at the time the agreement was being formed. That imprecision persisted even during the hearing. Examples are that witnesses spoke of Mr Hewison “getting into Australia” or of his “entry into Australia” or of his “relocation”, “re-establishment”, “resettlement” or “residence”, all phrases which, in relation to the central issue in the litigation, were ambiguous as to whether they were referring to limited assistance to Mr Hewison to pass border control or whether what they were discussing involved a commitment by the Police to go further and take steps such as those apparently taken on others’ behalf to assist him in obtaining residency in that country.

[70] On the essential issue, namely whether para 2 (iii)(a) of the claim is proved, having carefully assessed the evidence, the Court is of the view that it has been demonstrated that one of the terms of Mr Hewison’s agreement to provide the Police with the information which he was offering was that Police would both assist him to pass through Australian border control notwithstanding his declaring his convictions and that Police would assist to the extent that they were reasonably able in his application to obtain residency in Australia. The Court accepts that the Police were cautious about what they said on the latter topic since those negotiating with Mr Hewison must have known that the ability of the New Zealand Police to assist a convicted person to obtain residency in Australia was limited and had seldom been exercised. But the Court takes the view that the Police Officers did not make those difficulties plain to Mr Hewison and were not forthcoming about them, presumably so as not to lose access to the information which he was offering to provide. The ambiguity in expression which persisted at the hearing was likely to have been used at the time.

[71] There are a number of other aspects of the evidence leading the Court to that conclusion. In addition to the importance to Mr Hewison and the family of their being able to remain in Australia, there would have been no need to give him the Police Liaison Officer’s contact details or to make arrangements about selling the house and shipping the Hewison possessions to Australia if Mr Hewison was only to be in that country on a visitor’s visa. All parties knew that one of the reasons for his wishing to remain in Australia was to undertake his course, obtain his qualification and make a career in that country in a field where he could not do so in New Zealand. All of that could never have been achieved on a short-term visa. Similarly, there would have been no reason to reassure Mrs Hewison as to her ability to get into Australia despite her bankruptcy if she was only there on a visit. What the Police offered was assistance, first, in his getting through border control and then, though in a more guarded way, in helping him achieve residency. Nothing less would have been acceptable to Mr Hewison having regard to the risks he was running in even talking to the Police and the value of the information he was giving them. In this Court’s view, the Police agreed to do all they reasonably could to achieve residency for Mr Hewison.

[72] Although several of the Police witnesses such as Det Snr Sgt Small and Det Sgt Potter deny that permanent relocation in Australia was part of their discussion at the meeting on what was probably 28 November 1997, in the Court’s view Mr Hewison was entitled to rely on the somewhat more concrete comments on that topic by Det Insp Quinn and the somewhat similar comments made by Det Sgt Porter to Mrs Hewison. In the Court’s view, Det Snr Sgt Small and Det Sgt Porter would have known of Det Insp Quinn’s comments about alternative means of enabling Mr Hewison to remain in Australia and, whilst they may have been cautious about anything they said to Mr Hewison on 28 November 1997, they did nothing to dispel Mr Hewison’s understanding of the matter gained from Det Insp Quinn. The Court also takes the view that Det Insp Ronald’s comments if anything confirmed what Det Insp Quinn had said. The transcript shows that Det Insp Ronald’s comments were encouraging rather than discouraging about whether the Police could assist Mr Hewison to remain in Australia.

[73] It follows that the Court finds that it was a term of the agreement arrangement or contract between Mr Hewison and the Police that the Police would take reasonable steps to assist Mr Hewison to obtain permanent residency in Australia. Para 2(iii)(a) of his latest claim is accordingly proved, though not in the exact terms pleaded.

[74] As a post-script to that finding, though the Court accepts that Police officers spoke to Mr Hewison at the time the agreement was made of getting him into Australia by other means if legitimate means proved insufficient, the Court declines to accept the suggestion that the Police would assist Mr Hewison to obtain residency through illegitimate means or by subterfuge in the event that he was unable to obtain residency by orthodox means. Options such as a name change were only discussed later. No witness, other than Mrs Hewison, suggested that details of what other methods might be employed were ever discussed. The Court takes the view that her reference to “Government diplomatic channels” was inaccurate and the continent made to her went no further than earlier made to Mr Hewison. That the Police acknowledge making comments about alternative means of getting him into Australia is, however, helpful in deciding the extent of the terms of the agreement in that regard.

[75] The next question must therefore be whether the Police have been proved to be in breach of the pivotal term of the arrangement between the parties.

[76] In that regard, there were only three efforts at compliance mentioned in evidence. Det Sgt Porter said that he spoke with New Zealand - not Australian - Immigration officials in Wellington on 22 December and was given a pessimistic assessment of the likelihood of Mr Hewison obtaining Australian residency. He did not suggest he did anything more. The second was a telephone call which Det Insp Ronald made to an official at the Australian High Commission at Wellington, again on 22 December. He apparently asked about Australian policy in respect of immigration to Australia of New Zealanders with convictions, but did not tell the Court the answer. Thirdly, Det Insp Ronald made a telephone call the following day to an Australian Consulate staff member in Auckland. Again, the content of the conversation was not given in evidence. It is to be noted that the fact that he made those telephone calls only emerged at the hearing from a diary kept by Det Insp Ronald which had not been disclosed on discovery.

[77] The Police made no other contact or inquiry with any other official either here or in Australia. They did nothing else at the time to assist Mr Hewison’s residency application. They have done nothing to help him since although, in fairness, it must be noted that the evidence disclosed no specific requests to Police from Mr Hewison or those acting on his behalf or from Australian Immigration officials for Police to participate in the process. It is not difficult to accept that Mr Hewison may have irked Police Officers with his insistence, impatience, impetuousness, the stridency of his demands and the persons he and his wife involved or endeavoured to involve in the matter. In particular, his participation in the “20/20” programme with, apparently, its identification of the country in which he was residing may have galled them. But the question is whether it was the contractual obligation of the Police to do more than they did to assist Mr Hewison’s residency application. They should have put aside their concerns arising out of Mr Hewison’s actions and considered whether there was more assistance they were obliged to provide.

[78] It must be added that it is difficult for the Court to define what was required since even Mr Hewison was inexact as to precisely what status he is seeking in Australia. He said that his current entitlement to remain in Australia is pursuant to a refugee visa with a work dispensation. He and other witnesses spoke of his obtaining a “visa” or “residency” but apart from the fact that he wishes to remain in Australia on a permanent basis, the precise legal status which he is seeking was not put in evidence either orally or in documentary form. The Court is not even aware of the formal processes in which Mr Hewison is engaged to achieve that object, it being variously described during the hearing as a visa application or appeal, a residency application or appeal, or a refugee application or appeal.

[79] That notwithstanding, in the Court’s view, if Police have adopted policy on the relocation of witnesses and informers into Australia along the lines earlier discussed, then in this Court’s view, in order to comply with the contractual obligation which the Court has found them to have, the Police should have provided assistance to Mr Hewison in accordance with that policy. Even if the policy has not been adopted, reasonable assistance along the lines of the proposed policy should have been given in order to comply with the contractual obligation. In all those circumstances the only conclusion open is that the Police efforts to comply with what the Court has found to be their obligations were inadequate and failed to comply with the contractual requirement.

Law

[80] The Police having been found to have been in breach of the principal term of their agreement with Mr Hewison, the Court turns to consider the question of the declaratory relief sought.

[81] It is well settled that the Court’s power to make declarations stems from two sources, the Declaratory Judgments Act 1908 s 3 and the broader power which the High Court of Justice in England has to make declarations and which this court inherited by virtue of the Judicature Act 1908 s 16 (Johnston v Johnston (1990) 2 PRNZ 323 and on review [1991] 2 NZLR 608). It was common ground that Mr Hewison’s application was based on the Court’s inherent jurisdiction confirmed by the Declaratory Judgments Act 1908 s 2 which provides that binding declarations of right made by the Court may not be impugned for lack of jurisdiction. In the review judgment in Johnston Neazor J adopted the observations of Lord Diplock in Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, 501 where the learned Judge held:

“The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used - often as an alternative to the procedure by way of certiorari in cases where it is claimed that a decision of an administrative authority which purports to affect rights available to the plaintiff in private law is ultra vires and void. Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights.

The only kinds of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event.

The early controversies as to whether a party applying for declaratory relief must have a subsisting cause of action or a right to some other relief as well can now be forgotten. It is clearly established that he need not. Relief in the form of a declaration of right is generally superfluous for a plaintiff who has a subsisting cause of action. It is when an infringement of the plaintiff’s rights in the future is threatened or when, unaccompanied by threats, there is a dispute between parties as to what their respective rights will be if something happens in the future, that the jurisdiction to make declarations of right can be most usefully invoked. But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else.”

[82] In Wright v Collie [1959] NZLR 767, 770 it was held that a declaration as to right could be made if the right exists even though it may not be presently enforceable in the sense that more - even litigation - may be required to ensure enforceability. If made, the Court’s declaration in this case will be enforceable by Mr Hewison as against the Police even though, in terms of Wright, (at 768) “the fruits of it may still have to be hoped for”.

[83] Mr Burns also submitted that even if Mr Hewison made out the elements of his claim, the Court should decline to exercise its discretion to make an order in his favour because the relief sought would be of no use to the plaintiff.

[84] It is well established that in the exercise of the Court’s discretion, no declaration will be made under the Declaratory Judgments Act 1908 unless it is of some utility. (New Zealand Insurance Co Ltd v Prudential Assurance Co Ltd [1976] 1 NZLR 84, 95; Turner v Pickering [1976] 1 NZLR 129, 141-142; Johnston [supra] on review at 618).

[85] Finally in Re Chase [1989] 1 NZLR 325, 332-333, the Court of Appeal emphasised that the combination of ss 2 and 10 of the Declaratory Judgments Act 1908 show that the Act should be benevolently interpreted and not cut down by restrictive interpretation.

Relief

[86] All the Court is asked to do is make a declaration of Mr Hewison’s rights, namely, that the terms of the contract between these parties included the term that the Police would provide reasonable assistance to Mr Hewison in his application to achieve permanent residence in Australia and that they have failed so to do. For the reasons outlined in this judgment, the Court makes those declarations.

[87] That does not, of course, guarantee that Mr Hewison’s residency application will be successful. Even he, when asked about the matter, recognised that a declaration from this Court and Police compliance with it may not, in the end, result in his obtaining residency in Australia. Something further - perhaps even litigation - may be needed. But it is impossible for the Court to be sure on the slight information it has about Australian immigration processes. And it would not be right for this Court to withhold its relief from Mr Hewison simply because it is uncertain whether it will ultimately lead to the result he seeks.

[88] However, given the inexact way in which Mr Hewison’s position was described in the evidence, it is appropriate for the Court to grant leave to the parties to re-open the form of the relief granted in the event that seems appropriate.

[89] The only other relief Mr Hewison sought was an order for solicitor-client costs pursuant to the Declaratory Judgments Act 1908 s 13 which, in the usual way, makes the awarding of costs discretionary but expressly gives the Court discretion to order up to the whole of the costs of the action subject to the right to order that the costs awarded be taxed either on a party-and-party or solicitor-client basis. For obvious reasons, this was not a matter addressed in any depth at the hearing.

[90] If the parties are unable to agree on costs, memoranda may be filed with counsel certifying, if they consider it appropriate so to do, that the Court may determine all questions of costs without a further hearing. If memoranda are to be filed, that from the plaintiff is to be filed within 28 days of the date of delivery of this decision, with that from the defendant within 35 days of that date. If the parties cannot agree that the Court may deal with all issues of costs without a further hearing, a further fixture will be arranged.

[91] Questions of suppression of parts of the evidence were raised during the hearing. It is unnecessary to recount these since, in his final submissions, Mr Burns accepted there should be no continuing orders for suppression of the evidence before the Court as the matters of which the witnesses spoke were so general.