Hunter v Neville [2016] NZHC 2261 (28 September 2016)

Last Updated: 22 November 2016

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV 2016-454-000044 [2016] NZHC 2261

BETWEEN	BRIAN HUNTER Plaintiff
AND	JULEANNE DENISE NEVILLE First Defendant
	JODI MARIE JEFFREY Second Defendant
	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Third Defendant

Hearing:	21 September 2016
Appearances:	G Minchin for the Plaintiff/Respondent S K Barr for the Defendants/Applicants
Judgment:	28 September 2016

_{JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN}

This judgment was delivered by me on

28.09.16 at 3:00pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

B HUNTER v J D NEVILLE, J M JEFFREY AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 2261 [28 September 2016]

Background

[1] The defendants apply to strike out Mr Hunter’s proceeding. Mr Hunter claims damages for misfeasance in public office and/or negligence against the defendants, two probation officers and the chief executive of the Department of Corrections (collectively ‘Probation’).

[2] Mr Hunter says the defendants were responsible for the preparation of Pre- sentence reports in 2011 and 2012. Those were ordered by the District Court for Mr Hunter’s sentencing on forgery charges. Mr Hunter asserts the probation officers knew or should have known their reports contained false information as to the suitability of his address for an electronically monitored sentence.

The facts as pleaded

[3] At the time of the events Mr Hunter was residing in a rural location near Ashhurst, in the Manawatu. He said he resided at a property he was in the process of purchasing and from which he ran businesses as an IT consultant. He had entered guilty pleas to forgery charges. The Court had indicated a preparedness to impose a sentence of home detention rather than imprisonment and a community probation presentence report was called for. Ms Wallis a Probation Officer and a colleague had visited his premises and carried out testing for electronic monitoring.

[4] On 27 June 2011 a Pre-Sentence Report (the First Report) recommending home detention was completed. On 17 August 2011 Mr Black of Feilding Probation, telephoned Mr Hunter and informed him the Court had asked Probation to do a new Home Detention Report. Mr Hunter says the First Report found no issue with the suitability of his address for home detention, and that it had good coverage for electronic monitoring. Subsequently and by memorandum dated 9 September 2011, Probation sought a direction and obtained an order from the Court to provide an updated report.

[5] On 30 September 2011 the first defendant and another attended Mr Hunter’s

property to carry out another assessment for home detention monitoring. Mr Hunter

submits that proper procedure was not followed. He said the Home Monitoring Unit (HMU) ought to have been installed in a static location within the house by connecting it to mains power and then a test ought to have been conducted to establish whether or not the HMU had a GPRS connection to the Vodafone network. Then the ankle bracelet ought to have been checked to establish a connection to the HMU and limits of coverage.

[6] Mr Hunter says at this time he raised with the first defendant the issue of the utilisation of the extant landline connection for monitoring noting there was a connection within the house that could be used for this purpose. He says he also reminded the first defendant that the further option of satellite monitoring was available to them.

[7] Despite this, he said the first defendant provided a court report (the Second Report) which claimed the premises were not suitable for home detention because the property was unsuitable for electronic monitoring as there was inadequate cellular coverage.

[8] On 15 October 2011 Mr Hunter provided Probation with a report on cellular coverage at the property by Ultimate Mobile Limited. He said this report found there was adequate coverage as it was located only 1.8kms from a Vodafone cell tower. It is claimed the report described the testing methods carried out on 30

September 2011 as “very concerning”.

[9] Mr Hunter said the first defendant refused to reconsider the Second Report; that she knew the First Report found no issue with coverage or access and that the Second Report relating to the 30 September 2011 home visit did not conform with usual practice and hence was unreliable.

First cause of action – misfeasance in public office

[10] Mr Hunter says the first defendant knew the Second Report found coverage to be ample and that there were fundamental issues with the methodology used while testing occurred on 30 September 2011. The first defendant knew, Mr Hunter says

that Probation’s claim of unsuitability of the premises for electronic monitoring meant he would have to find alternative premises in a short time or face imprisonment. Thereby he says the first defendant committed misfeasance in the result of which he suffered loss and damage including business losses, relocation costs and emotional harm. Mr Hunter said the first defendant knew he had been diagnosed with post traumatic stress disorder. Mr Hunter claims damages for emotional harm causes. He claims punitive damages ought to be payable because the first defendant misled the Court.

Alternative second cause of action - negligence

[11] By his second cause of action Mr Hunter claims the first defendant was negligent because when it became apparent that the testing carried out on 30

September 2011 was irregular, she ought to have organised another visit, and that she did not consider other options such as monitoring by way of landline or satellite. Mr Hunter says that in the Second Report there was reference to a battery failure in the testing equipment used. Despite this the first defendant did not conduct a further test.

Third cause of action – misfeasance by second defendant

[12] By his third cause of action alleging misfeasance Mr Hunter says on 9 March

2012 a further Probation visit was made to the property, this time by the second defendant and another person. On that occasion testing was carried out to assess the suitability of the premises for electronic monitoring. Mr Hunter claims on that occasion it was established that there was sufficient coverage and that the property was capable of being electronically monitored. However, in the second defendant’s report (the Third Report) she did not submit the assessment obtained on 9 March

2012 but resubmitted the assessment contained in the Second Report which reported insufficient coverage for electronic monitoring.

[13] Mr Hunter pleads the second defendant knew the First Report found no issue and that the Second Report taken at the home visit of 30 September 2011 did not conform with the usual practice or alternatively had suffered a battery failure and

was therefore unreliable. Mr Hunter claims the advice provided by testing on 9

March 2012 showed there was sufficient coverage for electronic monitoring. Also there remained the option of conducting the monitoring by way of landline or satellite.

[14] In the outcome Mr Hunter claims that he lost the chance to purchase the premises in question and he suffered business losses totalling $225,000, relocation costs of $10,000 and emotional harm of $20,000.

Fourth cause of action – negligence by third defendant

[15] Mr Hunter’s claim against the third defendant, the Department of Corrections Chief Executive, alleges that person was responsible for the acts and omissions of the first and second defendants. He claims Probation sought an order from the Court to conduct a second test on 30 September 2011 when there was no reason to conduct another. He says the first and second defendants were manifestly incapable of properly conducting such tests. He says Probation did not consider the option of monitoring by way of the existing landline or by satellite despite this being standard practice, and having been raised with Probation.

Pleadings summary

[16] In summary Mr Hunter claims the defendants were responsible for the preparation of Pre-Sentence Reports for the District Court and that the defendants knew or should have known those contained false information as to the unsuitability of the plaintiff’s address for an electronically monitored sentence. He says the defendants’ recommendations to the Court forced him to nominate, at short notice, an alternative address for assessment causing him losses. Mr Hunter sues for damages arising from the alleged misfeasance in public office and/or negligence.

The strike out application

[17] The defendants submit their actions in relation to their reporting duties to the

Court are protected by witness immunity and, further, that they owed the plaintiff no

duty of care. Therefore it is submitted the statement of claim does not disclose an arguable cause of action.

[18] For the defendants it is submitted the causes of action concern actions undertaken by the defendants in providing Pre-sentence reports or in preparing such reports; that in doing so as a matter of law the first and second defendants are protected from civil liability by witness immunity.

[19] Alternatively and in response to claims of negligence it is submitted no duty of care was owed to Mr Hunter as a matter of law because as a matter of public policy such a duty of care is fundamentally inconsistent with the statutory duty a Probation Officer owes to the Court under the Sentencing Act 2002.

[20] Regarding the claim against the third defendant it is submitted that person appoints Probation Officers for the purpose of the Corrections Act 2004 under the State Sector Act 1988 but he is not vicariously liable in respect of the actions by Probation Officers. Counsel for the defendants Mr Barr, submits the first and second defendants are public servants and the only party who can be vicariously liable for their actions is the Attorney-General, on behalf of the Crown, and only to the extent allowed by, and subject to the conditions expressed in, the Crown Proceedings Act

1950, s 6. Further it is submitted no claim could succeed against the Attorney- General if joined because he would be entitled to rely upon the same immunities and defences available to the first and second defendants.

Pre-Sentence Reports

[21] By s 25(1)(e) of the Corrections Act 2004 the statutory function of a Probation Officer is “to provide all the reports and information that a Court... may require under any enactment”.

[22] Section 26(2)(a) of the Sentencing Act 2002 provides that a Sentencing Court must, if considering a sentence of community detention or home detention, direct a Probation Officer to prepare a Pre-Sentence Report which must include, among other matters, “information regarding the suitability of the proposed curfew address or

home detention residence, including the safety and welfare of the occupants of the proposed curfew address or home detention residence”.

[23] Section 28(1) – (2) of the Sentencing Act 2002 requires a copy of any Pre- Sentence Report to be provided to the criminal defendant’s legal counsel and s 28(3) of that Act provides the right of an offender to tender evidence on any matter referred to in any report and by which any challenge to matters of information and assessment is to be provided.

Strike out principles

[24] High Court Rule 15.1(1) provides for the Court to strike out a proceeding if it:

(a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleading; or

(b) is likely to cause prejudice or delay; or

(c) is frivolous or vexatious; or

(d) is otherwise an abuse of process of the court.

[25] Strike out principles are well settled. The jurisdiction is to be exercised sparingly. The cause of action must be clearly untenable. Usually the Court accepts the facts as pleaded by a plaintiff. In Couch v Attorney-General¹ the Supreme Court noted at paragraph [33]:

It is inappropriate to strike out a claim summarily unless the court can be certain that it cannot succeed. The case must be “so certainly or clearly bad” that it should be precluded from going forward. Particular care is required in areas where the law is confused or developing.

[26] For present purposes the Court needs to accept as provable claims that the presentence reports contained wrong or misleading information about the suitability

¹ [2008] NZSC 45, [2008] 3 NZLR 725.

of Mr Hunter’s premises for electronic monitoring – and that the first and second defendants were aware of this when their reports were submitted to the Court.

Considerations

[27] The focus of this judgment is upon claims the Probation Officer reports misled the Court – indeed intended to do so. Whether such claims could ultimately be proved is not relevant for present purposes. What is relevant is whether or not there is legal context available for pursuing the claims Mr Hunter has.

[28] The defendants say that in carrying into effect their duties to the Court they are protected by witness immunity in respect of actions undertaken by them in preparing and providing to the Court the presentence reports.

[29] Mr Minchin on behalf of Mr Hunter submits witness immunity does not attach for such applies to persons who give evidence to Court on oath but in this case the first and second defendants were not witnesses. Mr Minchin submits there is a pre-imminent right to justice which, together with the principle that fraud defeats all, should prevail over claims of witness immunity. Mr Minchin submits that the law of misfeasance is an exception to the doctrine of witness immunity as there is no principle or a policy reason to allow fraud to defeat the administration of justice. Mr Minchin submits witness immunity only applies in proceedings “at the heart of the legal system”, the trial where the integrity of the process is vital enough to overcome the fundamental legal principle that where there is a wrong there is a remedy.

[30] Mr Minchin submits that just as the defendants owed a duty to the Court so too they owed a duty to Mr Hunter.

[31] Regarding the scope of witness immunity for the first and second defendants Mr Minchin relies upon the UK Supreme Court decision in Jones v Kaney² wherein the majority of the Court supported the view that any exception to the general rule that every wrong should have a remedy had to be justified as being necessary in the

_{public interest and should be kept under review.}

² [2011] UKSC 13.

[32] Mr Minchin submits that the historical authorities on witness immunity reviewed in Jones all pertain to either a trial or matters ultimately connected with a trial. This is so submits Mr Minchin because the common law places the highest value on the adjudication of fact and it is for this reason that the right to access is restricted because proper adjudication of fact can be threatened if a witness may be subject to collateral proceedings.

[33] Mr Minchin submits Jones is authority for the limitation of the immunity to only that which is strictly necessary to ensure the integrity of the common law. In Jones it was found that expert evidence, previously protected by the immunity, should no longer be immune. He submits the immunity is referenced to conduct in the cause in Court; that by contrast the second defendants were participants in Court proceedings but that it would be unjustifiable for any immunity to extend to them because such should be confined to the trial process.

[34] Mr Minchin submits the word “proceeding” when used in the context of witness immunity, means trial or matters intimately related to trial hence the need for precise definition of the term “proceeding”. Mr Minchin submits reports prepared for sentencing purposes post trial do not attract witness immunity.

[35] Mr Minchin submits there are no overriding policy considerations that ought to protect the first and second defendants in the circumstances of this case; that a corollary to witness immunity is that such evidence is either viva voce evidence capable of being tested by cross-examination or evidence admitted by the Court pursuant to the Criminal Procedure Act, at a contested hearing; and that the trial process is about processes that check reliability.

[36] Mr Minchin submits:

(a) The giving of evidence is subject to being tested by cross-examination and by comparison with other evidence – hence the reason for immunity as that evidence is able to be tested.

(b) By contrast in this case the reports were not so tested and nor are they generally subject to testing.

(c) In our case the enquiry conducted as part of a sentencing process is not as critical and therefore there is not the mechanism to ensure the same level of reliability as existed at trial and therefore protections such as witness immunity are not justified.

[37] Regarding Probation Reports Mr Minchin submits that these are accepted at face value by the Court and that there is no mechanism short of convening a disputed facts hearing to resolve any issues. Mr Minchin submits that in the context of a busy Court trying to meet its targets, as set by the Ministry of Justice, the Court does and should be able to rely on Probation Reports as being accurate. This is exactly what happened in the event, the Judge only allowing a short period for the plaintiff to find another address or face imprisonment. It is for this reason alone that this matter should proceed, as there is a public law issue at large if the Court is being misled.

[38] Regarding Mr Hunter’s claims of breaches of duty of care Mr Minchin submits there is no inconsistency between that duty owed to Mr Hunter and the duty those probation officers owed to the Court pursuant to the Sentencing Act. Also in this case the proceeding is not simply the writing and the provision of the report but the alleged antecedent actions of fabricating a false assessment.

[39] This case cannot, it is submitted, be likened to that which occurred in Slavich³. In that case the duty at issue concerned the duties of a prosecutor. Andrews J held a prosecutor could not be subject to a duty which would conflict with their duty to the public and to the Court. Her Honour held that even if sustainable the cause of action must be struck out as witness immunity applied.

[40] Mr Minchin submits the duties and functions of probation officers can be contrasted with the role of a prosecutor in Court; and that there is no aspect of the duty claimed in Mr Hunter’s proceeding about falsification of electronic monitoring

_{assessments that should qualify for witness immunity.}

³ Slavich v Judicial Conduct Commissioner, HC Hamilton CIV 2010-419-975, 14 July 2011.

[41] Responding to claims the proceeding ought to have been brought against the Attorney-General, Mr Minchin agreed that the most pragmatic way to resolve the issue would be to amend the pleadings to name the Attorney-General and this is what will be done if the proceeding is not struck out.

Conclusions

Witness immunity

[42] It is the claim for Mr Hunter that witness immunity is not available and that it is inappropriate and further, a clear duty of care was owed by the defendants to him when the electronic monitoring investigation and report was undertaken. He asserts misfeasance has occurred because the probation officers knew or they ought to have known Mr Hunter’s premises was suitable for electronic monitoring and therefore for him to reside in while undertaking a sentence of home detention.

[43] It is Mr Hunter’s case witness immunity is not available because the role and function of the probation officers in the circumstances does not entitle them to that protection; that their role and function can be distinguished in circumstances where such an immunity is available; and in any event their duties in the circumstances were owed as well to him as they were to the Court.

[44] In summary of the submissions on behalf of Mr Hunter it is urged that witness immunity applies only to evidence given in trials and not to statements provided in the sentencing process and that the immunity does not apply if those sentencing reports are false.

[45] In the Court’s view witness immunity is not so limited. Indeed, interlocutory hearings can and do fall within the scope covered by the immunity. One such example is that in the Slavich case earlier referred to. That case was about submissions made to the District Court and the High Court in relation to Mr Slavich’s application for name suppression. He asserted that submissions made by counsel on behalf of the Police in opposition to his application for name suppression constituted misfeasance in particular regarding the extent of the offending said to

have involved him. He alleged that those submissions were deliberately or recklessly made assertions as to facts which were not supported by evidence and thereby counsel acted in excess of official powers. Alternatively Mr Slavich alleged counsel owed him, as a member of the public, a duty of care and breached that, in the course of making submissions.

[46] Andrews J held those submissions were covered by witness immunity.

[47] Mr Barr for the defendants refers the Court also to the decision of Brewer J in EBR Holdings Ltd (in liquidation) v McLaren Guise Associates Ltd⁴. That case concerned evidence given by affidavit in a summary judgment proceeding. That affidavit affirmed the contents of an affidavit provided to a liquidator’s examination conducted under s 261 of the Companies Act 1993. His Honour stated:

[35] The law in New Zealand, in my view, is that witness immunity applies to the affidavit evidence given... in the summary judgment proceeding...

[48] Mr Barr relies also on the judgment of the High Court in Perica v Attorney- General⁵. That case was about a person who was acquitted on charges of robbery and violence and who before trial had been declined bail. The person claimed that the police officer made untrue and deliberately deceitful statements in an affidavit in opposition to bail. The Court held witness immunity provided a complete defence.

[49] Mr Barr also refers to the decision of Associate Judge Abbott in Hoy v Chief Executive of the Department of Child Youth and Family Services⁶. In that case Social Welfare had supplied a report to the Family Court in relation to an adoption application. His Honour adopted the view of the High Court in Prince⁷ that held there could not be any suit in respect of the social worker’s acts or omissions in connection with the making of an interim and final adoption order however careless

_{or inadequate the worker’s enquiries and assessments may have been.}

⁴ _{[2015] NZHC 1996; [2016] 2 NZLR 96.}

⁵ _{15 PRNZ 673.}

⁶ _{CIV 2004-404-5757, 3 October 2005.}

⁷ Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA).

[50] Mr Barr submits it would be wrong if witness immunity applied in a criminal trial but not during the sentencing process if that same witness was to give evidence there – as s 24 of the Sentencing Act 2002 allows. Mr Barr submits there is no proper basis for severing off the sentencing process from other processes for which witness immunity has been held to apply. Moreover, it is clear that the sentencing Court can be required to adjudicate on facts as well even though this may seldom happen.

[51] Section 28(3) of the Sentencing Act 2002 permits an offender or his/her counsel to tender evidence on any matter referred to in a presentence report.

[52] It appears clear from the evidence Mr Hunter indeed did receive the Probation reports in question. It follows Mr Hunter would have had the means to put before the Court any information which disputed the contents of those reports.

[53] It has been suggested on Mr Hunter’s behalf that too little time was available to him to take issue with the reports. In this regard however it seems the issues raised by this proceeding were indeed the subject of the Second Report and long before the production of the Third Report when sentencing followed shortly thereafter.

[54] It is clear there is a dispute process that was available regarding issues raised by presentence reports.

[55] Mr Barr submits that for these reasons there is no basis in law or policy for the proposition that witness immunity only applies to statements made in the course of a trial. Respectfully, this Court agrees.

Whether in this case claims of misfeasance may provide an exception to claims of witness immunity

[56] If then witness immunity does apply Mr Hunter alleges the defendants fabricated a false assessment having viewed Mr Hunter’s home. That, it is submitted, forms the basis of the misfeasance causes of action. However, it does not

appear to the Court that that is how Mr Hunter’s case has been pleaded. Neither is it inferred nor does it appear to be implied by the relevant paragraphs 15, 16, 19 and 22 of the statement of claim. With respect to those paragraphs the pleading is about a visit and about testing having been carried out by an Armourguard security contractor who accompanied the first defendant. Paragraph 16 alleges the first defendant knew that the testing carried out was flawed.

[57] Paragraph 19 asserts the first defendant’s representation that the premises had poor access was false and known to be false.

[58] Paragraph 22 asserts the testing did not conform to usual practice and that other options ought to have been considered: that misfeasance occurred because the defendants knew those other options were available.

[59] Likewise with paragraphs 34, 35 and 38 of the statement of defence alleging misfeasance involving the second defendant.

[60] Paragraph 34 refers to a property visit in the company of a different

Armourguard contractor.

[61] Paragraph 35 alleges it was established by the Armourguard contractor that there was sufficient coverage.

[62] Paragraph 38 asserts the test did not conform with usual practice or alternatively a battery failure occurred; that other options ought to have been considered; and the second defendant submitted a report indicating the premises were unsuitable for monitoring knowing it would be accepted by the Court as a matter of fact.

[63] As Mr Barr submits there is no suggestion by these allegations that the defendants fabricated evidence at the visits. Rather, that issues are taken only with what it is they reported.

[64] This is not a case alleging any interference with the process that was undertaken at the time of visits – rather the claims are about what was not done.

There is no pleaded allegation of active fabrication – rather it is about reports to the

Court that certain events occurred at the premises.

Summary

[65] It is the case for Mr Hunter that witness immunity provides the Court protection of evidence given in Court and, otherwise should only apply in relation to evidence that might be given in Court.

[66] Mr Minchin referred to the judgment of Lord McKay in Darker v Chief Constable of West Midlands⁸. Lord McKay indicated the immunity should not be stretched beyond statements made for the purpose of Court proceedings, to protect a police officer who planted a brick or drug on an accused person. No such parallel lies in this case as the earlier analysis herein of the relevant pleadings illustrates. Rather Mr Hunter’s case is about claims of false reporting to the Court about the

testing undertaken at the premises. It seems clear the immunity will not cover acts calculated to create or procure false evidence or to destroy evidence⁹. But the immunity would cover the evidence of a person repeating what they say they saw.

[67] Regarding pleadings about breaches of duty, Mr Minchin reminded the Court to exercise the caution urged in Couch. He submitted in this case there was no conflict between the defendants’ duties to the Court and to Mr Hunter. He stated there was a shortage of time available to provide any dispute to the defendants presentence report, and said that if the pleading for breach of duty of care failed then a claim of breach of statutory duty may subsist anyway.

[68] In the Court’s view no duty of care is owed to the plaintiff as a matter of law because as a matter of public policy such a duty of care is fundamentally inconsistent with the statutory duty of a probation officer owed to the Court under the Sentencing Act 2002.

[69] Prince was about reports prepared by a social worker for adoption proceedings. The Court held that an imposition of a duty of care to the child and its

⁸ _{[2001] 1 AC at 452.}

⁹ Darker at p. 454 per Lord Cooke.

natural mother was inconsistent with the legislative scheme. As Mr Barr submits whilst the social worker contributed to the information before adoption court, the report was not accorded any statutory primacy and the court made the ultimate decision. As the court in Prince¹⁰ held to allow a claim in negligence would undermine the intended finality of the adoption and would constitute an indirect attack on the adequacy of the statutory process and the integrity of the order.

[70] As Andrews J held in Slavich¹¹ the prosecutor did not owe a duty of care to persons charged with criminal offences:

Such a duty would be contrary to the interests of justice and inconsistent with the duty of a solicitor acting as prosecutor to be independent, acting as the public’s representative in prosecuting alleged defendant, and to maintain a position of personal neutrality, detachment, and objectivity. The solicitor has obligations to the Court and may be subject to disciplinary proceedings brought by the relevant professional body, but is not subject to suit by an alleged defender.

[71] In the Court’s view the defendants roles as presentence report writers was to act independently in fulfilling their statutory obligations under the Sentencing Act to assist the court that was determining a suitable method for dealing with the case. In this context, the Court agrees with Mr Barr’s submission that the imposition of a duty of care to the offender would not be consistent with the presentence report writer’s statutory function. It is the court and not the presentence report writer that determines the sentence and an offender who does not like a presentence report has a remedy, as s 28 of the Sentencing Act provides.

Result

[72] All causes of action against the first and second defendants are struck out.

[73] It follows that any claim against the third defendant or against the Attorney- General must also be struck out because those persons would be entitled to rely upon

_{the same immunity as defences available to the first and second defendants.}

¹⁰ _{Supra at 7 - pp 275 – 276.}

¹¹ Supra at 3, para [42].

Judgment

[74] The strike out applications are granted.

_{[75] Costs are reserved for determination upon application.}

Associate Judge Christiansen