Summary
The Court of Appeal upheld a decision to grant public law damages to two individuals who had been prejudiced by disclosure failures in a criminal prosecution.
Background
In March 2014, Lance Morrison and Richard Blackwood (“Respondents”) were charged with a number of offences relating to the financial dealings of a company they were associated with.
During the first trial, it emerged that the Crown had failed to disclose nearly 14,000 potentially relevant documents, in breach of the Criminal Disclosure Act 2008 (“CDA”). This came to light approximately halfway through the trial hearing.
The trial court accepted that the Crown had not deliberately withheld the documents, but described the scale of the non-disclosure as “unprecedented.” In those circumstances, the Respondents could not be guaranteed a fair trial. The proceeding was discontinued.
The Crown chose not to re-prosecute Mr Morrison but continued against Mr Blackwood. Mr Blackwood’s retrial commenced in August 2018. He was convicted at trial, but the convictions were later overturned on appeal.
This meant that, in total, Mr Blackwood had to wait 5 years from the time he was charged before he was acquitted. Mr Morrison waited 3 years before the charges against him were dropped.
Following Mr Blackwood’s acquittal, both men commenced proceedings against the Crown seeking public law damages for breaches of their fair trial rights under ss 24 and 25 of the New Zealand Bill of Rights Act 1990 (“NZBORA”).
The High Court held that the Respondents fair trial rights had been breached by the non-disclosure and awarded each $10,000 in public law damages. It also awarded Mr Blackwood an additional $5,000 to reflect the undue delays in the second trial, which were directly caused by the Crown’s disclosure failures.
The Attorney-General appealed.
The case
Public law damages are a form of relief available against the state for breaches of rights guaranteed under NZBORA. The purpose of such damages, usually set at a modest sum, is to vindicate breaches of NZBORA rights, and to deter public officials from infringing such rights in future.
The rights engaged in this case were the minimum standards of criminal procedure guaranteed under ss 24 and 25 of NZBORA. These included the umbrella right to a fair and public hearing by an independent and impartial court, as well as subsidiary procedural rights such as the right to be tried without delay, to be present at trial and present a defence, to have adequate time and facilities to prepare a defence, and to effectively examine witnesses. All of these were affected by the disclosure failures.
Availability of public law damages
Earlier New Zealand cases had expressed doubt about whether public law damages could be awarded for breaches of fair trial rights, holding that those rights could be safeguarded through procedural remedies, and that the prospect of damages could have unintended consequences for prosecutorial and judicial decision-making.
The Court of Appeal in this case departed from this approach, confirming that public law damages were available for breaches of ss 24 and 25. It held that damages for breaches of fair trial rights would only arise in the most serious cases and would not have distortionary effects. There was no principled reason to exclude them, particularly as Canadian courts had already recognised their availability for a breach of fair trial rights.
First ground of appeal – Intention requirement
The central issue was whether damages required proof of intentional non-disclosure. In the Canadian Supreme Court case Henry v British Columbia, the majority held that damages required intentional withholding, knowledge that the non-disclosure would harm the defendant’s case, a constitutional breach, and resulting harm. The minority applied the same test but without the intention requirement.
The majority justified the intention threshold on concerns that without it prosecutors might be chilled in their work and litigation might expand uncontrollably. The minority was not persuaded.
The High Court in New Zealand in this case had followed the Canadian minority. The Attorney-General argued that this was an error and that the majority should have been followed.
The Court of Appeal upheld the High Court and adopted the minority approach in Henry. It emphasised that damages deter rights infringements and promote good governance, and that most disclosure issues are dealt with as part of court procedure. Given disclosure under the CDA was mandatory, it would in fact be beneficial to incentivise prosecutors to err on the side of caution and disclose documents of uncertain relevance. There was no reason to treat fair trial rights differently to other rights guaranteed under the NZBORA, where no requirement to prove intention existed.
Accordingly, the High Court had been correct in following the Henry minority and not requiring the Respondents to establish the documents were intentionally withheld.
Second ground of appeal – Additional damages for undue delay
The Attorney-General also appealed against the additional $5,000 awarded to Mr Blackwood for delay.
The Court dismissed this appeal. The disclosure failures had directly caused the retrial, which took place more than four years after the initial charge. Another defendant, who was convicted, received a 19-month sentence reduction for the same delay. There was no reason Mr Blackwood, who was acquitted, should be denied a remedy
Result
The Court of Appeal upheld the High Court’s awards of public law damages to the Respondents.
The decision shows a departure from the more conservative approach signalled by the New Zealand courts to public law damages under ss 24 and 25 of the NZBORA.
For further information on this case or similar issues please contact Director Brigitte Morten
