Taylor v Attorney-General HC Auckland CIV 2010-485-2226 [2011] NZHC 824 (19 July 2011)

Last Updated: 9 August 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2010-485-2226}

BETWEEN ARTHUR WILLIAM TAYLOR Plaintiff

AND THE ATTORNEY-GENERAL Defendant

Hearing: 20 April 2011

Appearances: Plaintiff in person

F Sinclair for defendant

Judgment: 19 July 2011

_{JUDGMENT OF ALLAN J}

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of

4 pm on Tuesday 19 July 2011

Parties:

A W Taylor, Private Bag 50124, Albany 0752,Auckland: fax [phone]

Solicitors:

Crown Law, Wellington, [e-mail]

ARTHUR WILLIAM TAYLOR V THE ATTORNEY-GENERAL HC AK CIV 2010-485-2226 19 July 2011

[1] On 18 February 2005, the plaintiff, then a remand prisoner, gave to the police a sample of his DNA by providing a buccal sample. He did so under protest, claiming that the order of the District Court upon which the police relied was invalid.

[2] The plaintiff subsequently commenced proceedings by way of judicial review in the High Court at Wellington.1 In that proceeding, Ronald Young J held that the District Court Judge had no jurisdiction to make the order, granted a declaration that the bodily sample was unlawfully taken, and noted that in the light of that declaration the authorities would destroy the sample. It is common ground that the sample was in fact destroyed some weeks later.

[3] In the present proceeding, Mr Taylor seeks further declaratory relief, together with common law damages. He relies on what he claims to have been breaches of the New Zealand Bill of Rights Act 1990 (the Act), committed by the District Court and the police in relation to the taking of the sample and the events that preceded it.

Factual background

[4] The facts are not materially in dispute. On 17 August 2004, Mr Taylor was convicted on three charges of theft in the Porirua District Court. By reason of those convictions Mr Taylor became liable to give a bodily sample under the provisions of the Criminal Investigations (Bodily Samples) Act 1995, if required to do so.

[5] On 21 December 2004, Mr Taylor was served with a Databank Compulsion Notice. Under the legislation, he was entitled to oppose the giving of a sample and to be heard in the District Court for that purpose. A hearing was duly requested. On

9 February 2005, a District Court Judge sitting at Porirua heard Mr Taylor’s objection. The judgment was delivered the following day, 10 February 2005. The Judge concluded that the notice was valid. The plaintiff was required to attend at the

_{Porirua police station at midday on 15 February 2005, in order to provide a sample.}

1 Taylor v Attorney-General HC Wellington CIV-2005-485-530, 14 May 2005.

[6] Unfortunately, the written decision of the District Court Judge did not reach the police until late on 15 February. By then it was too late for the police to comply with the strict terms of the order. Besides, Mr Taylor, who was then in custody on other charges, but had earlier that day reappeared in the Porirua District Court, had been returned to Rimutaka Prison. So nothing could be done on 15 February.

[7] The police then invited the Judge to amend his earlier decision pursuant to s 43A(3) of the Criminal Investigations (Bodily Samples) Act, by varying the date for the taking of the sample to 17 February 2005, and directing that the sample be taken at Rimutaka Prison. The Judge did purport to amend his earlier order, but directed that the sample be taken on 18 February 2005.

[8] Mr Taylor had been represented by counsel at the hearing of 9 February 2005, but neither he nor his counsel were consulted by the police or the District Court about the amendment to the order, which was made on the papers by the District Court Judge.

[9] On 18 February 2005, at about 12.45 pm, Senior Constable Cowden attended Rimutaka Prison in order to take a bodily sample from Mr Taylor. He was the police liaison officer for the Prison. Mr Taylor was brought to an interview room in the At Risk Unit to meet Senior Constable Cowden. Mr Taylor said he wanted his nominated person present. Earlier he had filled out a form requesting the presence of that person. It is common ground that he was entitled to have someone present at the time of the taking of a sample. But Mr Taylor had not been advised in advance of Senior Constable Cowden’s visit, nor had he been told of the amendment to the date for the taking of the sample by the District Court Judge.

[10] Efforts were made to contact the nominated person, who was located, but did not ultimately reach the prison until 2.50 pm. The amended order made by the District Court Judge required that the sample be taken on 18 February 2005 between

10 am and 2 pm at Rimutaka Prison, so the prescribed time had expired.

[11] Once the plaintiff’s nominated person had arrived, Senior Constable Cowden told Mr Taylor that because the time specified in the order had expired, Mr Taylor

was obliged to give a sample and that force could be used if necessary for that purpose. Mr Taylor sought to speak to his lawyer; contact was made at about 3 pm. Having taken legal advice Mr Taylor agreed to give a sample. A buccal, or mouth swab, sample was then taken. Mr Taylor took the sample himself with equipment provided by Senior Constable Cowden.

[12] The plaintiff made it plain at the time of the taking of the sample that he gave it under duress because he considered the procedure to be unlawful. The order required the sample to be taken between 10 am and 2 pm. By the time it was obtained, the time was about 3 pm. Mr Taylor pointed that out to Senior Constable Cowden, as the latter accepted in evidence.

[13] Mr Taylor says also that he was aware in general terms that the police had only six months from the date of conviction within which to obtain a sample, and he knew that the time had expired. It is common ground that he did not however point that out to Senior Constable Cowden.

The judgment of Ronald Young J

[14] In the earlier judicial review proceeding, Ronald Young J was required to deal with two separate issues. The first concerned the obligation imposed upon the police to issue and serve a Databank Compulsion Notice as soon as reasonably practicable. The Judge held that the notice served on Mr Taylor had not been served as soon as reasonably practicable.2 The Judge held that whilst the requirement had not been observed in Mr Taylor’s case, he was unable to accord a remedy. I am not concerned with that aspect of the earlier judgment.

[15] The second issue concerned the failure of the police to take the bodily sample “... before the date six months after the date the person’s conviction for the relevant offence was entered”.3 Mr Taylor had been convicted on 17 August 2004. The

_{sample was taken on 18 February 2005. Neither of the grounds for extension of time}

2 Criminal Investigations (Bodily Samples) Act 1995, s 39(3)(a).

3 Criminal Investigations (Bodily Samples) Act 1995, s 39C(3)(b).

was available.4 It was common ground before His Honour that the sample was in fact taken outside the authorised six months period.

[16] The issue before Ronald Young J was whether, despite the taking of the sample without jurisdiction, it should nevertheless be retained by the police and used in the future as part of the available Databank material, on the basis that the Court was simply faced with a fait accompli. The Judge rejected the argument that because the police acted in good faith and believed that what they were doing was authorised, the sample should be saved for future use. He made a formal declaration that the bodily sample taken from Mr Taylor on 18 February 2005 was taken unlawfully, and that it continued to be held unlawfully by the State. He noted further that on the making of the declaration, counsel for the Crown accepted that the bodily sample would be destroyed, as it later was.

The plaintiff ’s pleadings

[17] Mr Taylor pleads two causes of action. The first concerns the circumstances in which the District Court Judge amended his first order by varying the date, time and place for the taking of the sample. He did so on the papers on the application of the police. The application for amendment was not served on Mr Taylor or his lawyer, and Mr Taylor was given no opportunity to be heard on the proposal that the order be varied. He alleges that the procedure followed constituted a breach of s 27 of the Act, in that he was not given adequate (or any) notice of the proposed amendment, nor was he given an opportunity to be heard upon it. He seeks a declaration that there has been a denial of the rights guaranteed to him by s 27(1) of the Act. He also seeks public law (Baigent’s case) compensation in the sum of

$50,000.

[18] The second cause of action is concerned with the circumstances surrounding the actual taking of the sample. He advances five separate arguments namely that:

4 Criminal Investigations (Bodily Samples) Act 1995, ss 43A and s 47.

(a) in the circumstances the taking of the sample amounted to his subjection to medical or scientific experimentation without his consent;5

(b) the same circumstances amounted to a breach of his right to refuse to undergo any medical treatment;6

(c) the taking of the sample breached his right to be free from unreasonable search and seizure;7

(d) the circumstances constituted arbitrary detention or arrest;8

(e) the treatment or conduct to which he was subjected breached his right to be treated with humanity and respect for his inherent dignity.9

[19] In each case Mr Taylor seeks a declaration of breach, together with public law compensation of $50,000.

[20] I deal first with each of the arguments advanced by Mr Taylor in respect of liability and then with the question of remedy.

Section 27(1)

[21] Section 27(1) of the Act provides:

27 Right to justice

(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

5 New Zealand Bill of Rights Act 1990 (NZBORA) S 10.

6 NZBORA s 11.

7 NZBORA s 21.

8 NZBORA s 22.

9 NZBORA s 23(5).

[22] Mr Taylor alleges that the failure of the police to notify him of the application for amendment of the order, and the failure of the Court to give him an opportunity to be heard before the order was amended, amount to a breach of his right to natural justice.

[23] For the defendant, Mr Sinclair submits that the determination of the

plaintiff’s obligations occurred at the original Databank compulsion hearing on

9 February 2005. He accepts that s 27(1) applies to that step.10 But Mr Sinclair argues that, once the District Court Judge had concluded that the plaintiff was obliged to provide a sample, the principles of natural justice did not require the Court to hear further from the plaintiff concerning the date upon which the test must be administered. Rather, the setting of the date was an administrative step, as was the variation of the order.

[24] I consider that the variation of the date of the compulsion order amounted to more than a purely administrative step. That is because the statutory six months period within which a sample may lawfully be taken was about to expire. It was important therefore, that the plaintiff be notified of the attempt to secure a new date for the taking of the sample. Had he been so notified, and had he been represented before the District Court Judge, counsel would have been able to ensure that the order complied with the time requirements set out in the relevant legislation. It appears that both the District Court Judge and counsel then acting for the police overlooked those time limits. The consequence was the making of an order that required Mr Taylor to provide a bodily sample on a date later than six months after the date of conviction. The District Court Judge had no authority to make any such order. In my view, it cannot seriously be contended that Mr Taylor had no right to be heard before the varied order was made.

[25] Indeed, the facts of this case cogently demonstrate why it is that affected parties must be accorded a right of audience when an order touching upon their

10 As is affirmed by s 41C(1) of the Criminal Investigation (Bodily Samples) Act, which confers a right of appearance on the subject of the Compulsion Notice and upon any legal representative of that party.

rights is to be made. Had that occurred here, then it is unlikely that the Judge would have made an order, as he did, without jurisdiction to do so.

[26] I am satisfied that there has been a breach of Mr Taylor’s right under s 27(1). The question of remedy for that breach is discussed below.

Breaches of sections 10 and 11

[27] Sections 10 and 11 of the Act respectively provide:

10 Right not to be subjected to medical or scientific experimentation

Every person has the right not to be subjected to medical or scientific experimentation without that person's consent.

11 Right to refuse to undergo medical treatment

Everyone has the right to refuse to undergo any medical treatment.

[28] Mr Taylor argues that the provision of the bodily sample amounted to the breach of the prohibition against medical experimentation without consent.11 I reject that submission.

[29] An argument similar to that advanced by Mr Taylor was rejected in Pio v Police,12 with respect to an alcohol breath screening test, and in Jeffcoat v Waetford,13 with respect to the taking of a blood sample.

[30] Earlier, in R v Salmond,14 McKay J had expressed the view that a blood specimen lawfully obtained from a person could not properly be described as subjecting the person to “experimentation”.

[31] I consider that the same approach must be adopted here. The taking of the bodily sample cannot properly be regarded as either a medical or scientific

11 NZBORA s 10.

12 Pio v Police HC Rotorua AP43/94, 13 February 1995.

13 Jeffcoat v Waetford (1999) 17 CRNZ 75 (HC).

14 R v Salmond [1992] 3 NZLR 8 (CA) at 26 .

experiment. It was required for the purpose of obtaining evidence. It was not aimed at advancing human knowledge. In my view Mr Taylor is unable to rely on s 10.

[32] Section 11 is concerned with unauthorised medical treatment. In my view, the primary focus of the section must be the right to refuse treatment in the nature of bodily manipulation, surgical incursion, ingestion, or the like. Where the aim is not to treat a patient but rather to collect evidence, the taking of blood samples is more satisfactorily dealt with under s 21 (unreasonable search and seizure).15 But even if the taking of a bodily sample can properly be viewed as “medical treatment” for the purposes of s 11, it by no means follows that compulsion in the giving of a sample for forensic purposes is forbidden. The Court is then required under s 5 of the Act to

consider whether compulsion is justified as a reasonable limit on the right contained in s 11.

[33] Section 5 of the Act provides:

5. Justified limitations

Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[34] In Police v McIsaac,16 Potter J held that s 5 permits limits to be placed on rights guaranteed under the Act, including the right contained in s 11. That case was concerned with an application by the police for a Suspect Compulsion Order under s 13 of the Criminal Investigation (Blood Samples) Act 1995, requiring the respondent to provide a mouth swab sample after the first sample taken was contaminated. Potter J considered that the express entitlement of the authorities to take a sample would be completely nullified if reliance could be placed on s 11, and

_{held that s 5 required the Court to place limits on rights under the Act.}17 _{In doing so,}

15 Andrew Butler and Petra Butler, The New Zealand Bill of Rights Act: A Commentary; (LexisNexis, Wellington 2005) at 265.

16 Police v McIsaac HC Auckland M399/01, 3 May 2001.

17 McIsaac, At [19].

she noted that the legislation made copious provision for observance of procedural safeguards in the context of taking bodily samples under compulsion.18

[35] In Police v Onekawa,19 Williams J held in the context of the taking of a blood sample, that what was proposed was not medical treatment within the usual meaning of that phrase, and that even if it were, s 5 would apply because the Criminal Investigations (Blood Samples) Act was later in date than the Act, and so the Court must assume that Parliament’s intention was that the provisions of s 5 would override those of s 11.

[36] In my opinion, the taking of the bodily sample in this case amounted neither to medical treatment, nor medical nor scientific experimentation. Even if it was, the provisions of s 5 apply. Compulsion is justified as a reasonable limit on the rights set out in ss 10 and 11.

Section 22

[37] Mr Taylor further claims that he was arbitrarily detained, contrary to the provisions of s 22 of the Act, which provides:

22 Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained.

[38] For the purposes of the taking of the sample, he was removed from the remand section of the prison and taken to an area where he was secured in isolation from other prisoners. For a period he was also denied the amenities which he would normally enjoy in the remand section.

[39] In Neilsen v Attorney-General,20 Richardson P, delivering the judgment of the

Court of Appeal, discussed the requirements of s 315 of the Crimes Act 1961 and s 22 of the Act. He said:

18 Down v Van de Wetering [1999] 2 NZLR 631 (HC).

19 Police v Onekawa HC Auckland T293/97, 7 July 1998.

20 Neilsen v Attorney-General [2001] 3 NZLR 433 (CA).

[33] ... They are congruent. Section 22 affirms the fundamental principle of our law that no person should be arbitrarily arrested or detained by agents of the state. It applies as much to a short deprivation of liberty as to a long- term deprivation.

[34] Whether an arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.

[40] I am satisfied that Mr Taylor was not arbitrarily detained in breach of s 22. At the time of the taking of the sample he was in the lawful custody of the Department of Corrections. The nature of his detention for several hours in the At Risk Unit, cannot be characterised as arbitrary in the sense discussed in Neilsen. The execution by the police of the District Court order, and the administrative arrangements made by the prison authorities were justified, even though the order itself was made without jurisdiction, insofar as it directed the taking of a sample outside the six month statutory time limit.

Section 23(5)

[41] Section 23(5) provides:

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[42] In Taunoa v Attorney-General,21 Blanchard J described conduct that would contravene the sub-section as:

...conduct which lacks humanity ... which demeans the person, but not to an extent which is degrading, or which is clearly excessive in the circumstances.

[43] Mr Taylor claims that the conditions under which he was held in the At Risk Unit were inferior to those prevailing in the remand section of Rimutaka Prison. In particular, he was not permitted to associate with other prisoners, he lost the opportunity to take advantage of a pre-arranged family visit, and he had no access to

running water, food, or the prisoner pay-phone. He was held in the At Risk Unit for a little over two hours, from about 12.45 pm until just after 3 pm.

[44] In Taunoa prisoners had been kept segregated in isolation and in very restrictive conditions with limited privileges over a period of many months under the Behaviour Management Regime implemented at the time by the Department of Corrections. That was held to amount to a breach of s 23(5).

[45] In Attorney-General v Udompun,22 a breach of s 23(5) was held to arise out of a combination of circumstances relating to the detention of an illegal immigrant awaiting deportation from New Zealand, following a 10 hour flight to this country. The plaintiff was not provided with sanitary products (although the authorities had been informed of her need for them) and no opportunity was afforded her to change her clothes or to shower. There was also a delay in providing her with food. The plaintiff did not speak English and had no means of communicating her needs in a dignified fashion.

[46] Those cases were, in my opinion, infinitely more serious than this. Here, the taking of the buccal swab itself was a minor intrusion only. It is routinely performed and is otherwise authorised by statute. Mr Taylor was obliged to remain in the At Risk Unit for less than three hours. His treatment does not begin to approach the egregious circumstances in which detained persons were placed in Taunoa and Udompun and cannot in my view amount to a breach of s 23(5).

[47] A separate aspect of Mr Taylor’s claim under s 23(5) requires brief mention. Once the time for taking the sample had elapsed (that is, after 2 pm) Senior Constable Cowden indicated to Mr Taylor that he was obliged to provide a sample, and if he did not, physical force would be used. Mr Taylor, no stranger to prison procedures, was aware that the use of force would often require the involvement of the Control and Restraint Squad, a group of prison officers who were called upon when it was necessary to subdue and control prisoners. On occasion, Mr Taylor

claims, the members of the squad have been known to use considerable physical force and to cause considerable prisoner discomfort (to put it lightly).

[48] As is conceded by the defendant, Mr Taylor was justified in his refusal to give a sample because the District Court order was unlawful, but he did ultimately accede because he knew that a refusal would, in any event, involve the use of force upon him and the taking of a sample. He says that he suffered distress and humiliation as the result of being placed in a position in which he had to choose between giving a sample which he knew he was not obliged at law to give, and assuming the risk of being subjected to physical force.

[49] I accept that Mr Taylor was placed in an invidious position, but having taken legal advice he made the obvious choice and provided the sample upon request. In other words, the threat of violence was not followed through and Mr Taylor knew throughout that he could avoid any risk by complying with the requirements of the police. Any distress he suffered resulted from the giving of a sample, in circumstances where he knew that the order was invalid, rather than from the contemplation of physical restraint. These are not circumstances in which the provisions of s 23(5) are engaged.

Section 21

[50] Section 21 provides that persons have the right to be free from unreasonable search and seizure. The defendant concedes that the taking of the buccal swab sample from the plaintiff was unlawful, and that it was also unreasonable.23 So there was an acknowledged breach of s 21. Moreover, the taking of the sample was not only unlawful because it was conducted outside the statutory six month period, but because it was also taken under duress to some degree by reason of the threat of

force if Mr Taylor did not comply voluntarily.

[51] The real question for determination is whether the breach of s 21 ought to be recognised simply by way of the grant of a declaration, or whether damages ought to

be awarded as well. Mr Taylor claims he is entitled to both. Mr Sinclair argues that this is not a case in which it would be appropriate to award damages, although he accepts that a declaration would be appropriate.

[52] Accordingly, I turn to a discussion of the appropriate remedy.

Remedy

[53] The essential contest is as to the availability of damages for the breach of the plaintiff’s rights under ss 27(1) and 21 in the present circumstances. Following Simpson v Attorney-General (Baigent’s Case),24 it has been established that financial compensation may be available in some cases as a remedy for breach of the Act. But the approach to compensation is inherently discretionary, albeit the discretion must be exercised on a principled basis. Damages are not an invariable remedy for breach.

[54] The judgment in Taunoa provide assistance. Elias CJ noted that it was accepted on behalf of the Attorney-General that damages are available “where necessary to provide an effective remedy for breach of rights”.25

[55] Blanchard J said:26

... it may be entirely unnecessary or inappropriate to award damages if the breach is relatively quite minor, or the right is of a kind which is appropriately vindicated by non-monetary means, such as through the exclusion of improperly obtained evidence a criminal trial.

[56] Tipping J said:27

The defendant must pay what, if anything, is necessary to vindicate the breach or denounce the conduct concerned, or deter future breaches.

_and:

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

25 Taunoa, at [107]

26,At [256].

Although in this field relief is discretionary rather than as of right, it must generally be appropriate to compensate for demonstrable harm suffered as a result of the breach of a right of sufficient importance to be affirmed in the Bill of Rights Act.

[57] McGrath J said:28

Selection of the appropriate remedy from those available will involve the making of a principled choice in the exercise of judicial judgment.

and: 29

The Court’s finding of a breach of rights and a declaration to that effect will often not only be appropriate relief, but may also in itself be a sufficient remedy in the circumstances to vindicate a plaintiff’s rights.30

[58] Against that background it is important to bear in mind the approach mandated by Blanchard J in Taunoa:31

When ... a Court concludes that a 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 address the breach and the consequent injury to the rights of the plaintiff in the particular circumstances ... 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 ...

[59] Such damages are to be distinguished from common law damages or equitable compensation. As Blanchard J observed in Taunoa:32

In public law, making amends to a victim is generally a secondary or subsidiary function. It is usually less important than bringing the infringing conduct to an end and ensuring future compliance with the law by governmental agencies and officials, which is the primary function of public law. Thus the award of public law damages is normally more to mark society’s disapproval of official conduct than it is to compensate for hurt to personal feelings.

[60] Claims for compensation must be considered in the light of all relevant factors in a given case. In Taunoa, Tipping J thought that in determining whether

28 At [366].

29 At [368].

30 At [368].

31 At [258].

damages ought to be awarded at all, the Court should take into account the nature of the right breached, the circumstances and seriousness of the breach, the serious of the consequences of the breach, the response of the defendant to the breach and any relief awarded on a related cause of action.33

[61] In the present case the defendant concedes a breach of s 21. I have held further that a breach of s 27 occurred when Mr Taylor was not provided with an opportunity to be heard in respect of the amendment to the original District Court order.

[62] I deal first with the appropriate remedy for breach of s 27(1). In McKean v Attorney-General,34 Glazebrook J noted that public law damages for a breach of the right to natural justice, confirmed in s 27(1), are likely to be rare.35 She continued:36

They should be confined to circumstances where there is no other effective remedy, where human dignity or personal integrity or (possibly) the integrity of property are also engaged and where the breach is of such constitutional significance and seriousness that it would shock the public conscience and justify damages being paid out of the public purse.

[63] I am satisfied that, as will ordinarily be the case where a breach of natural justice is made out, the appropriate remedy is the grant of a declaration. Mr Sinclair accepts that such a remedy is appropriate. In some cases a declaration will need to be accompanied by other procedural directions such as the quashing of judgments or orders of the Court given in breach of natural justice requirements. Here, no such consequential relief is needed, particularly given the sample has already been destroyed.

[64] The gravity of the breach of natural justice in this case does not begin to approach the level at which an award of damages could be considered and Mr Taylor

_{does not seriously contend that damages should be awarded in that context. Rather,}

33 Taunoa at [306].

34 McKean v Attorney-General [2009] NZCA 553.

35 McKean was a case in which the Court found that there had been a breach of the appellant’s right to

natural justice in the context of a prison disciplinary hearing.

36 McKean at [21].

his focus is upon the s 21 breach and the circumstances in which the buccal sample was unlawfully taken.

[65] I turn now to consider whether it is appropriate to award damages for the breach of Mr Taylor’s s 21 right.

[66] In the course of his well organised oral argument, Mr Taylor accepted that the pleaded claim for $50,000 for public law damages did not accord with previous awards, and that the Court might well consider that a much lower figure would suffice. He argued for an award of say $500 or $1000.

[67] As to that, Mr Sinclair refers the Court to the note of caution sounded by

Blanchard J in Taunoa:37

An award of nominal damages benefits neither the victim nor society. It may appear to trivialise the breach.

[68] It is necessary to take into account the level of damages awarded in the leading cases in order to assess the defendant’s argument that this case is so low on the scale that no award is justified.

[69] In Udompun, discussed above, Mrs Udompun was detained in a room for some 23 hours in circumstances that caused considerable privation. An award of

$4000 was made.

[70] In Taunoa, the Behaviour Management Regime involved serious and prolonged breaches of prisoners’ rights under s 23(5). Mr Taunoa himself had been on the programme for almost three years. He was awarded $35,000. It is to be noted that Elias CJ and Blanchard J each considered that s 9 of the Act had been breached in his case.

[71] Mr Kidman, who had been detained under the Behaviour Management

_{Regime for three months, was awarded $4000. Mr Gumbie, who had been on the}

37 Taunoa at [254].

Regime for six and a half weeks was awarded $2000 (so upholding the High Court award), although Blanchard J thought that figure “may be rather too high”.38

[72] In light of these cases, I am satisfied that a declaration provides a sufficient remedy for the breach of s 21 in this case. While the search was both unlawful and unreasonable, the breach was not particularly serious. The taking of the swab itself was not invasive, given that the plaintiff himself took it. In the circumstances, it was less of an intrusion than say the taking of a blood sample. Senior Constable Cowden relied upon an order of the District Court made in error, but not by reason of any fault of the police officer. The detention occurred over a period of a little more than two hours, in conditions that were perhaps a little more Spartan than were to be found in the remand wing. However, the circumstances of the detention itself do not appreciably exacerbate the gravity of the s 21 breach.

[73] Ronald Young J earlier held that those who took the sample believed that they were entitled to do so.39 There is no suggestion of bad faith on the part of the police; it was merely an error by the Court, perpetuated in good faith by the actions of the police officer.

[74] Although factually different, this case involved a breach resembling that considered in Rochford v Attorney-General.40 In that case, the police had concluded that Mr Rochford had made false complaints of theft. A defective search warrant application was obtained for his home and was submitted to a judicial officer who issued a warrant. The plaintiff was absent when the search took place, but his pregnant girlfriend was present. In the District Court it was held that the defects in

the warrant were the result of carelessness rather than bad faith, and that the level of unreasonableness was at the lower end of the scale. A declaration of breach with indemnity costs was held to be sufficient to mark the breach. On appeal to the High Court, MacKenzie J held that an award of damages was unnecessary and

_{inappropriate, the breach being “relatively quite minor”.}

38 At [274].

39 At [27].

40 Rochford v Attorney-General [2008] NZHC 275; [2008] NZAR 404 (HC).

[75] In the present case, I consider the breach to be similarly minor. An award of damages, if made, would be so minimal as to risk trivialising the right. I am satisfied that a declaration (described by Blanchard J in Taunoa as “not toothless”) is a sufficient remedy.41

Result

[76] For the foregoing reasons there will be declarations:

(a) that the denial to the plaintiff of his right to be heard on the police application for an amendment of the District Court suspect compulsion order amounted to a breach of the plaintiff’s right to natural justice, guaranteed by s 27(1) of the New Zealand Bill of Rights Act 1990;

(b) that in requiring the plaintiff to give a buccal sample pursuant to the amended District Court order, the defendant was in breach of the plaintiff’s rights to be free from unreasonable search and seizure, guaranteed to him under s 21 of the New Zealand Bill of Rights Act.

[77] The plaintiff’s claim for public law damages is dismissed.

Costs

[78] Mr Sinclair seeks costs on the footing that the declaration of breach of s 21 is practically the same as the declaration already made by Ronald Young J in the earlier proceeding, and that it could have been obtained as a matter of course in that proceeding. He further argues that the claim for public law damages lacked merit, and that there ought to be a discrete award of costs in favour of the defendant to

_{mark the plaintiff’s failure on this aspect of his claim.}

41 Taunoa at [232].

[79] There is some force in Mr Sinclair’s approach, but the declarations now made are not entirely co-extensive with the relief granted by Ronald Young J. Moreover, the defendant argued that there had not, in all the circumstances of the case, been a breach of s 27(1), in that the variation of the order was effectively administrative. On that point I have held in favour of the plaintiff.

[80] In all the circumstances I consider that the appropriate course is to direct that costs lie where they fall.

C J Allan J