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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV
2005-404-002561
BETWEEN JOSEPH ROSEVELT
Plaintiff
AND THE ATTORNEY-GENERAL OF NEW
ZEALAND
Defendant
Hearing: 14 and 15 July 2008
Appearances: J Dorbu for Plaintiff
G A D Neil for Defendant
Judgment: 21 July 2008
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
21 July 2008 at 9.30 a.m., pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell,
Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland 1140
Copy to:
J Dorbu, PO Box 105345, Queen Street,Auckland, 1001
ROSEVELT V THE ATTORNEY-GENERAL OF NEW ZEALAND HC AK CIV 2005-404-002561 21 July
2008
[1] This is a claim for damages for false
imprisonment. The plaintiff says that he
was arrested by police officers on 28 April 2005 when he was present with an
acquaintance
in a retail outlet which sold electronic goods. It is claimed that he was
subsequently taken to the Takapuna Police Station where
he was subject to detention
against his will.
[2] Whilst he was at the Takapuna Police Station, as a result of inquiries made
of
the New Zealand Immigration Service, the police were asked to serve a Removal
Order on the plaintiff, who had unlawfully remained
in New Zealand after the
rejection of an appeal by the Refugee Status Appeals Authority. The Authority's
decision was given in relation
to a decision of the Refugee Status Branch of the New
Zealand Immigration Service which had declined to grant him refugee status.
[3] The plaintiff is a citizen of Liberia. The evidence did not disclose where he
currently resides. The hearing proceeded
in his absence, the defendant having
consented to his evidence being given by affidavit. There was some discussion
about the implications
of that at the outset of the trial. Having heard counsel, I ruled
that the fact that the evidence was given by affidavit by consent
did not mean that the
defendant was unable, by the evidence it called, to challenge the content of the
affidavit. Mr Dorbu, at the
time, protested that a consequence of my ruling was that
he felt "ambushed".
[4] I am bound to record that that was an extraordinary
submission for Mr Dorbu
to make having regard to the facts that:
a) The defendant's statement of defence made it plain
that the key
factual allegations on which the plaintiff needed to succeed were
rejected by the defendant.
b) The briefs of evidence of the defendant's witnesses, served prior to
the trial, made plain the extent
of the factual dispute.
c) There was nothing to suggest that in conceding that the plaintiff's
evidence
could be given by affidavit the defendant intended to adopt
the stance that the content of the affidavit would not
be challenged.
Indeed, the reference that the defendant's counsel made to s 17 of the
Evidence Amendment
Act (No.2) 1980 at the time the parties were
negotiating about the plaintiff's affidavit should have made it quite
plain that the defendant intended to challenge the contents of the
affidavit.
[5] Those issues
were fully discussed in the ruling that I made at the outset of the
trial and I need not pursue them further now. I should, however,
mention another
matter that was dealt with on a preliminary basis. That concerned the plaintiff's
wish to rely at the trial on two affidavits that had been sworn by
the plaintiff's wife
in the context of interlocutory applications. The Crown was opposed to that course
being followed, and Mr Neil
emphasised that much of their content was of a hearsay
nature. I inquired of Mr Dorbu as to why the deponent, who I understand remains
in
New Zealand, could not give evidence orally. Mr Dorbu advised that he was not
permitted by his instructions to advise the Court
why Ms Rosevelt was not available
to give evidence in person.
[6] Given the plaintiff's stance, I decided that the affidavits
should not be read.
The plaintiff's affidavit
[7] Mr Rosevelt's affidavit recorded that he first came to New Zealand in 1999,
claiming refugee status. He is a citizen of Liberia, but did not have his own passport.
So he used another passport, which did not
belong to him. He handed that passport
to the Immigration Service on arrival and sought refugee status at the same time.
That application
was declined on 15 March 2001.
[8] On 21 June 2002 he married Mrs Rosevelt. His appeal to the Refugee Status
Appeals Authority
was dismissed in a decision dated 1 October 2001. A work
permit that had been granted to him by New Zealand Immigration Service expired
on
2 November 2001.
[9] Nevertheless, according to Mr Rosevelt, he found work, engaged in gib-
stopping and incorporated a company
named JRosevelt Fixing Ltd, which operated
as a sub-contractor specialising in interior linings in residential houses. He said that
at the time of his "arrest" (whether there was an arrest is one of the key factual
disputes between the parties) the company had
contacts with three organisations in
particular. The company has since been struck off the Companies Register following
Mr Rosevelt's
removal from New Zealand.
[10] The principal evidence on which the plaintiff relies as the basis of the present
claim was set
out at paragraphs 10 to 14 of his affidavit as follows:
Unlawful Arrest
On the 28th of April 2005, which
was a Thursday, I did not go to
10.
work. Around 1.00 p.m. I received a telephone call from a Bernard
Abebresseh, whom I had met at the Ghanaian Soccer Club in
Auckland and became acquainted with. On this particular
occasion
Mr Abebresseh informed me that he was unwell and could not drive
but needed to attend to some
matters. He asked if I could assist to
drive him around. I later learned that he had been forbidden to drive
by police, and that was the real reason for his request. He later
confessed this to me while in detention,
and I felt used by him.
11. I drove to meet Mr Abebresseh at the Manukau Shopping Mall car
part and we
drove to the North Shore around Glenfield. Mr
Abebresseh entered a Retro Vision electronic goods shop and I
followed him into the shop. As we were looking around the shop,
two men entered the shop and approached us.
They asked who was
"JASON". Before one of us had the opportunity to reply to the
question, the two
men pulled out their identification badges and
declared to us that they were Police Detectives from the Takapuna
Police Station. The two men informed us that we were under arrest.
12. The two detectives then took us
to a waiting car outside the shop and
asked us not to talk to each other or make a phone call. They asked
us to enter the car and drove us to the Takapuna Police Station. On
our way to the Police Station the detectives
collected my driver[sic]
licence. At the police Station the detectives put us in different
rooms.
13. The detectives asked me if I knew who JASON was, and I described
the extent to which I knew him. The detectives then said that I was
unfortunate to be at the wrong place at the wrong time. They then
asked about my immigration status. I explained
my status including
my efforts to leave New Zealand voluntarily with my family, which
were unsuccessful,
as described above. I asked the detective to refer
to Mr James Ludlum of New Zealand Immigration. The detective
then left me in the room for a period of time. Afterwards a man who
identified himself to me as Craig
entered the room with the
detective. Craig described himself as an Immigration Officer. He
showed me
a document headed "removal order" and asked if I had
seen it before. He then asked me some questions about my
circumstances and my family after which he served me the removal
order.
14. Again and again after
my arrest and before the arrival of the
Immigration Officer I asked the Police detective to allow me to call
and speak to my wife and he refused. I asked to speak to a lawyer
and the detective refused. Then the detectives
asked for my
fingerprint. I refused and informed him I would not provide a
fingerprint until he permitted
me to speak to a lawyer. At that point
they permitted me to call my lawyer. That was around 8.00 p.m. on
28 April 2005. The police then informed me that they were going to
contact my wife.
Defence evidence
[11]
The defence relied on the evidence of four witnesses, two of whom were
members of the police and two of whom were, at relevant times,
employed by the
New Zealand Immigration Service.
[12] Detective Sergeant Thompson, who at the time was a detective attached to
the Criminal Investigation Branch at the Takapuna Police Station, was contacted on
28 April 2005 by the Auckland Central Fraud Squad.
The latter reported that he had
been contacted by GEC Finance regarding one Jason Robinson. Mr Robinson was a
Nigerian national who
earlier that day had submitted what GEC believed was a
fraudulent hire purchase agreement at Vince Roberts Electrical, in Wairau
Park on
the North Shore. Mr Robinson was due to return to the store that afternoon for the
purpose of uplifting the goods to be let
on hire purchase, which had a value of
$10,000.
[13] The police were interested in Mr Robinson as a member of a group of
suspected
Nigerian fraudsters. Detective Thompson asked Detective Constable
Christopher Brown to go to the premises of Vince Roberts Electrical
to "intercept"
Mr Robinson on his return to the store. Detective Constable Brown asked Constable
Shane Heath to accompany him. They
arrived at approximately 3.10 p.m. and
parked opposite the store. While Constable Heath waited in the vehicle, Constable
Brown went
inside.
[14] At about 3.40 p.m. he observed two males of African descent, arriving at and
then entering the store where they
began browsing. He telephoned Constable Heath
to join him. Once Constable Heath arrived, he approached the two males.
According
to Detective Constable Brown he then identified himself as a police
officer and obtained their basic details. He continued:
Neither Constable Heath nor I were in uniform. The two men told me their
names were Jason Robinson and Joseph Rosevelt.
Mr Rosevelt gave his date
of birth as 11 April 1969 and produced his driver's licence (No. DA674515).
[15] There was an
issue raised in cross-examination about the driver's licence. It
will be recalled that in his affidavit, Mr Rosevelt said that the
driver's licence had
been collected by the detectives as they drove to the Takapuna Police Station. In
cross-examination Detective
Constable Brown conceded that he could not remember
whether the driver's licence had been handed to him in the car or in the shop. He
also said that he could not remember when he had
given Mr Rosevelt's driver's
licence back to him.
[16] It was Detective Constable Brown's evidence that he informed both
Mr Robinson
and Mr Rosevelt that he wished to speak to them and that he asked
them to accompany him to the Takapuna Police Station. He said that
he advised
them at the time that they were not under arrest and were not obliged to come to the
station with him. However, both had
consented to go back to the station, and the
detective recorded that fact in his notebook.
[17] During a discussion on the way
back to the station, Detective Constable
Brown said that either Mr Robinson or Mr Rosevelt had asked what was happening.
In response,
he had again informed them that they were not under arrest and had
again asked if they were still willing to attend the station.
Both men had agreed to
do so. On arrival at the station, they were shown into separate interview rooms.
Detective Brown questioned
Mr Robinson, but he refused to make a statement.
Mr Rosevelt was questioned by Detective Sergeant Thompson.
[18] In his evidence,
Detective Sergeant Thompson recorded his understanding
that Mr Rosevelt had returned to the station voluntarily.
[19] Their discussion
commenced at about 4.10 p.m. Having identified himself to
Mr Rosevelt and explained that he wanted to ask some questions in relation
to his
association with Mr Robinson, Detective Sergeant Thompson told Mr Rosevelt that
he was not under suspicion of having committed
an offence, although he had become
of some interest given his association with Mr Robinson. He told him that he was
not under arrest,
but that he would like him to remain at the station while
Mr Robinson was being dealt with. He made a note in his notebook to that
effect.
According to Detective Sergeant Thompson, Mr Rosevelt appeared to be
"comfortable with this request", and he appeared "quite
relaxed and at ease". His
English was good, and he communicated well.
[20] In the discussion that followed, Detective Sergeant
Thompson asked
Mr Rosevelt some questions regarding his association with Mr Robinson. He
recorded what Mr Rosevelt told
him in his notebook:
Not acquainted with Robinson. Met through soccer.
Robinson sent a message to Rosevelt via computer
asking to be picked up.
Didn't know what for or where they were going.
[21] Detective Sergeant Thompson said that, as
an aside, he asked Mr Rosevelt
about his immigration status. Mr Rosevelt told him that he had been denied
residency; however,
he was hoping a letter he had sent to the Minister would change
that. Once again, this reply had also been noted in the sergeant's
notebook.
[22] As a result of what Mr Rosevelt told him, Detective Sergeant Thompson
replied that he would check with Immigration
New Zealand and proceeded to do so.
He spoke with a Mr Blackman, who was then an employee of Immigration New
Zealand. Mr Blackman
told him that Mr Rosevelt was an overstayer and that
Immigration New Zealand had a Removal Order for service on him.
That
conversation occurred at about 4.30 p.m.
[23] Detective Sergeant Thompson agreed to serve the Removal order on
Mr
Rosevelt and Mr Blackman said that he would send it through by facsimile. The
facsimile arrived at approximately 5.20 p.m.
[24]
As has been seen, Mr Rosevelt's affidavit had contained evidence that he had
been denied repeated requests to call and speak to
his wife, and to speak to a lawyer.
It was only after he had refused to provide a fingerprint that he had been permitted to
call
his lawyer. That had been around 8.00 p.m. and the police had then informed
him that they were going to contact Mrs Rosevelt.
[25]
Presumably in response to that evidence, Detective Sergeant Thompson gave
evidence that a call had been made to Mr Rosevelt's home
telephone number from a
number at the Station at 5.23 p.m. that day. The call had lasted for two minutes and
11 seconds. He said that he could not recall either
making a telephone available to
Mr Rosevelt or making the telephone call himself. However, he thought it was
unlikely that he would
have made the call himself, as Mr Rosevelt was not detained
or under arrest at the time and he was simply waiting for the Removal
Order to arrive
whilst tending to other tasks.
[26] Detective Sergeant Thompson served the Removal Order on Mr Rosevelt at
approximately
5.45 p.m. by personally handing it to him. He then told him that he
was detained pursuant to the Removal Order and gave him his rights
and short
caution. He advised Mr Rosevelt of his right to consult and instruct a lawyer in
private and without delay, and of his
right to refrain from making any statement.
[27] Having done that, the sergeant completed the bottom portion of the Removal
Order
form in which he confirmed its service on Mr Rosevelt. At about 6.00 p.m.,
an immigration officer, Mr Fennell arrived at the station
and interviewed
Mr Rosevelt. Following that interview, Mr Rosevelt was held overnight in police
custody and appeared in the North
Shore District Court the following day. He was
then detained at the Auckland Central Remand Prison, pending his removal from
New
Zealand.
[28] Detective Sergeant Thompson subsequently escorted Mr Rosevelt from New
Zealand to South Africa on 19 May 2005.
The issues
[29] In Attorney-General v Niania [1994] 3 NZLR 106 Tipping J summarised the
law of false imprisonment in the following passage at 108:
False imprisonment occurs when the plaintiff
is arrested, detained or
imprisoned by the defendant without lawful justification. The process need
not necessarily
be forceful. If the plaintiff is induced to submit by an
assertion of authority on the part of a defendant, that is as much
a false
imprisonment, unless lawfully justified, as if the plaintiff had been the
subject of forcible confinement:
see Todd, Borrows, Chambers, Mulgan and
Vennell, The Law of Torts in New Zealand (1991) at pp 91-92 and Salmond
and
Heuston on Torts (19th ed, 1987) at pp 137-138 and the cases there cited.
In such non-forcible cases the plaintiff must show
that in the circumstances
he or she felt obliged to submit to the instructions or dictates of the
defendant. A wholly
voluntary submission is insufficient. The plaintiff
must submit in circumstances where he or she reasonably considers there
is
no choice but to submit. That is what the Judge found in this case.
[30] In that case, the police had obtained a warrant
to search the respondent's
house. The warrant was executed at about 1.00 a.m. In an outside shed a box was
found containing items
consistent with the manufacture of "home-bake". At about
2.30 a.m., the respondent was required to go to the police station for questioning,
and
was not advised that she was under no obligation to do so. She arrived there shortly
before 3.00 a.m. and was taken to the main
CIB Office where she remained for a
short time. She was interviewed for about 20 minutes and then left in a room to
which access
could only be gained from the outside by using a key. In fact the room
was not locked, but the Judge held that it was perfectly reasonable
for her to believe
that she was locked in the room. She remained there between two and three hours,
during which she was constantly
supervised. When she needed to go the toilet a
female constable accompanied her. Around dawn she was taken to the police
cafeteria under supervision and remained there until 8.00 a.m. when she was told that
she was free to leave.
[31] The District
Court Judge found that from the time she was required to
accompany the police until about 8.00 a.m. when she was told that she could
leave,
she was detained by the police without lawful justification. Although the police
alleged that she was fee to leave during
the time that she was at the police station, the
Judge held that she had in fact been falsely imprisoned.
[32] The key to the
findings in the Court below was summarised by Tipping J at
[5] where he said that the respondent had in fact had no choice but to
accompany the
detective to the police station. Although the detective had at no time said or done
anything which could reasonably
be construed as the making of a formal arrest, he
had nevertheless led her to believe that she was obliged to go with him and was
not
free to leave the police station.
[33] In the present case the plaintiff asserts that "the two men informed us that we
were
under arrest". Apart from that, the plaintiff relies on the fact that the police
took Mr Robinson and Mr Rosevelt to their waiting
car and asked them not to talk to
each other or make a phone call. The plaintiff's driver's licence was collected and
they were put
in different rooms at the station.
[34] There is a direct conflict in the evidence between what the plaintiff deposed
and what
was said by Detective Constable Brown. As has been seen, according to
Detective Constable Brown he never purported to arrest either
Mr Rosevelt or
Mr Robinson. He had, in fact, specifically told them when initially talking to them
that they were not under arrest
and were not obliged to come to the station.
Nevertheless, they consented to go to the station. The advice that they were not
under
arrest was repeated as they drove to the police station. At that stage, they were
asked again if they were willing to attend and both agreed to do so.
[35] Detective Constable
Brown was cross-examined extensively on his evidence.
It was put to him that he would have had good reason to suspect that Mr Robinson
had committed an offence and that arresting him would have been lawful. The
detective constable agreed with that proposition, but
also said that he had asked the
two to accompany him to the police station rather than arresting them and had told
them that their
presence at the station would be voluntary because he wanted to
secure their co-operation. It was his preference not to arrest when
there was a
chance of co-operation. As he put it in response to one of Mr Dorbu's questions
about what would have happened if Mr
Robinson had said he did not want to come
back to the police station:
I would have reassessed then as to whether he was going
to come back or
not. I probably had good grounds to suspect he had committed an offence. I
find in my experience
if you arrest someone right off the cuff they shut up
shop from you and do not talk to you. Being in a public place they could
flee. So I try to keep it low key and ask for their co-operation.
[36] The detective constable gave his evidence in a straightforward
and seemingly
frank manner. There was, of course, nothing known initially by him or his superiors
about Mr Rosevelt's status as someone
unlawfully in New Zealand, nor was
Mr Rosevelt part of the reason for the presence of the police in the store that
afternoon. He
had simply gone there with his acquaintance Mr Robinson (or as he
knew him, Mr Abebresseh) and was spoken to for that reason. In
response to a
question from the Bench, Detective Constable Brown said that he may have arrested
Mr Rosevelt had he indicated that
he would not go to the police station, on the basis
of his possibly being a party to Mr Robinson's offending, since he had observed
both
arrive at the premises together. That may be so, but I am prepared to accept in the
circumstances that it was an eventuality
that never arose.
[37] In the end, having heard the detective constable's evidence in cross-
examination I prefer his account
of what occurred on the afternoon to that of the
plaintiff in his untested affidavit. His evidence was credible and he maintained
his
position in cross-examination. On his account there had been no need for an arrest,
and I do not consider that there was one.
In the result, I find that Mr Rosevelt
voluntarily accompanied the police officers to the Takapuna Police Station following
a request
that they do so.
[38] Once they arrived at the station, the plaintiff was effectively in the hands of
Detective Sergeant Thompson.
The question then becomes whether anything was
said or done to the plaintiff which could have caused him to believe that he was
detained
and could not leave. Standing in the way of any such conclusion is
Detective Sergeant Thompson's evidence that he informed Mr
Rosevelt that he was
not under arrest although he asked him to stay whilst Mr Robinson was being dealt
with. Mr Rosevelt had appeared
to be relaxed and comfortable to comply with that
request.
[39] Under cross-examination, he conceded that he had not specifically
told
Mr Rosevelt that he had a right to leave the police station. However, he continued:
...but the nature of the conversation
between the two of us was very low
key. My body language, his body language, the circumstances in general, of
the reason
why he was there, I was under no illusion that he was at the
station voluntarily. I was at pains to explain to him the reasons
I wanted to
speak to him and I guess to make him comfortable that he wasn't a suspect
in the fraud. It's hard for me
to explain now but there wasn't any tension or
anything like that. I tried to make Mr Rosevelt comfortable and from my
perspective I was treating it at a low level simply helping another officer out
with some inquiries. That was my main focus. However, Mr
Rosevelt was
at the station and someone needed to speak with him. If at any time I felt he
was uncomfortable being
there and wanted to leave the station from my
point of view that would have been no problem at all. But he was happy to
be there. As far as I could tell he was quite happy to be there and co-operate
fully.
[40] Although Mr Rosevelt spoke
in his affidavit of being left in a room for a
period of time, he did not give any evidence which would suggest that anything in
particular was said or done to him at the station which could have left him with the
impression that he was being detained. There
was no suggestion that the door had
been locked, or that it might have appeared to be so to Mr Rosevelt. Rather, the
plaintiff apparently
relied, as a matter of fact, on the on-going effect of the "arrest" at
the store. I have already decided that there was no such arrest.
There was also the
assertion that repeated requests to make telephone calls to his wife and a lawyer were
refused. However, that
evidence is, at least to some extent, contradicted by the
evidence of the phone call to his home phone number from the police station
that
afternoon at about 5.20 p.m.
[41] There were here none of the indicia which led the District Court Judge in
Attorney-General
v Niania to conclude that it was reasonable for the plaintiff in that
case to believe that she was detained.
[42] On the events
that occurred at the station, once again I prefer the evidence of
Detective Sergeant Thompson to that of the plaintiff.
[43]
In the result, the plaintiff has not been able to show that he was detained by
the police at any time down to his service with the
Removal Order. On the evidence,
that occurred at about 5.45 p.m. that evening.
[44] There was no dispute that a Removal Order
could properly be served on the
plaintiff, given that he had unlawfully remained in New Zealand. The defendant
called evidence
from Mr Blackman, who had provided the Removal Order to
Detective Sergeant Thompson for service on the plaintiff, and from Ms Natalie
Slow,
another former Immigration New Zealand employee who recounted relevant matters
from the plaintiff's file, and the history of
the procedures which had been applied to
the plaintiff. There was some cross-examination of these witnesses in relation to the
steps
taken to serve the Removal Order and whether it would have been appropriate
for humanitarian considerations to be taken into account
prior to its service. There
was, however, no allegation in the statement of claim that the Removal Order had
been improperly served.
Consequently, there is no need to inquire into those
matters.
Result
[45] The plaintiff's allegations that on the day
in question he was falsely
imprisoned have not been sustained. The claim therefore fails, and there is
judgment for the defendant.
[46] At the defendant's request, I reserve questions of costs. If there is an
outstanding issue concerning costs that cannot
be resolved by agreement, I will
receive memoranda from the parties.
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