|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 29 August 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2016-485-912 [2017] NZHC 2081
|
BETWEEN
|
TEINA ANTHONY PORA
Applicant
|
|
AND
|
THE ATTORNEY-GENERAL Respondent
|
|
Hearing:
|
3 July 2017
|
|
Counsel:
|
G J X McCoy QC and J G Krebs for Applicant
P T Rishworth QC and M Majeed for Respondent
|
|
Judgment:
|
28 August 2017
|
JUDGMENT OF ELLIS J
[1] Teina Pora spent nearly twenty years in jail for a crime that he did not commit.1 He was 17 when he was first arrested and spent over a year in custody on remand, before trial. He was 39 when his conviction was quashed by the Privy Council. There is no other case in New Zealand legal history where it has been accepted by the Crown that a person has been wrongly imprisoned for anywhere near
that length of
time.
1 The Honourable Rodney Hansen QC, who provided two reports to the Minister of Justice on
Mr Pora’s case, concluded that:
Mr Pora has established on the balance of probabilities that he is innocent
of the crimes of which he was accused and convicted ...
. Indeed, the state of
the evidence is such that, in my view, he could have proved his innocence to an
even higher standard.
Rodney Hansen Report for the Minister of Justice on Compensation Claim by Teina Anthony Pora
(23 March 2016) [Eligibility Report] at [312].
PORA v THE ATTORNEY-GENERAL [2017] NZHC 2081 [28 August 2017]
[2] That those such as Mr Pora should receive compensation for the time they have spent in prison cannot be doubted; for some time now there has been broad international agreement about that. That consensus is reflected in art 14(6) of the International Covenant on Civil and Political Rights (the ICCPR) – as to which more, later. The immensity of the harm caused to such persons has been noted on
many occasions,2 but in Mr Pora’s case it was summed up by
the former High Court
Judge, Rodney Hansen QC like this:3
As the Crown acknowledges, there can be no doubt that the circumstances of Mr
Pora’s case are truly exceptional. The lengthy
term of imprisonment and
Mr Pora’s youth and vulnerability are by themselves sufficient to put his
claim in the truly exceptional
category. He suffered grievous mental and
emotional harm. Family relationships were lost or destroyed and were more or
less non-existent
for much of his incarceration; important relationships,
particularly with his daughter, had to be built from scratch. As earlier
noted,
harm of this nature continued when Mr Pora was on bail (on highly
restrictive conditions) and on parole.
[3] In New Zealand, payment of compensation in such cases has
historically been regarded as a matter of executive grace and
favour.
Compensation is seen as an adjunct to the prerogative of mercy, requiring
approval by Cabinet.
[4] Since 1998, however, the payment of “ex gratia” compensation for those who have been wrongly imprisoned has been the subject of detailed Guidelines, under which the key assessments of both eligibility and quantum are initially made by a Queen’s Counsel, engaged by the Minister of Justice (the Minister). Once a claimant’s eligibility has been accepted, the Guidelines contemplate a specific process for quantifying compensation for both pecuniary and non-pecuniary losses. And in terms of non-pecuniary losses, they have, since 2000, utilised a figure of
$100,000 both as the appropriate compensation for each year a claimant has been deprived of liberty and as the benchmark for assessing other such losses. That yearly figure was based on, and was intended to reflect, awards by the New Zealand Courts
for false imprisonment at the time.
2 See for example the recent report: Innocence Project Making up for Lost Time: What the Wrongly Convicted Endure and How to Provide Fair Compensation (Benjamin N Cardozo School of Law, Yeshiva University, 2011).
3 Rodney Hansen Second Report for the Minister of Justice on Compensation Claim by Teina
Anthony Pora (31 May 2016) [Quantum Report] at [76].
[5] That $100,000 annual figure has remained unchanged since its adoption. On any analysis, that annual sum had considerably more value then, than does the same sum, 16 years later. The actuarial evidence before the Court was that $100,000 in
2000 is worth $138,000 in today’s terms.
[6] In accordance with the Guidelines, Mr Pora’s application for compensation was referred to Mr Hansen. Mr Hansen prepared two reports. The first concluded that Mr Pora was (on at least the balance of probabilities) innocent of the murder and rape of Ms Susan Burdett, the crimes for which he had been twice convicted and imprisoned. In the second, Mr Hansen determined that an application of the Guidelines would result in the payment to Mr Pora of approximately $2.5 million in compensation for his wrongful imprisonment, including approximately $2.2 million for non-pecuniary losses. Of that $2.2 million, around $1.97 million was the price of
the 19 odd years of liberty he lost.4 As can immediately be
observed, that figure was
arrived at by multiplying the Guideline annual figure of $100,000 by the
number of years and months he wrongly spent in jail. The
remaining $225,000 was
also based on the $100,000 benchmark in the Guidelines.
[7] On three occasions in the course of his second report, however, Mr Hansen expressly recorded his recommendation that Cabinet consider inflation adjusting that
$2.2 million, non-pecuniary loss, figure. He said that not adjusting the sum
meant that Mr Pora would be twice prejudiced by the
(very considerable) length
of time he had wrongly spent in custody.
[8] The Minister accepted Mr Hansen’s core findings but not
his recommendation to inflation adjust. She made recommendations
to Cabinet
accordingly. Cabinet agreed that Mr Pora should be compensated in accordance
with the Minister’s recommendations.
[9] Mr Pora accepted the compensation then offered on the express basis that, although he agreed to take no civil proceedings against the Crown in relation to his
convictions and imprisonment, he would be permitted to
seek the Court's
intervention by way of judicial
review on the inflation adjustment issue. So it is on that basis that the
matter has now come before
me.
[10] Before turning to consider the issues raised by the application for
review, however, it is useful to say a little more about
the historical context
relating to the payment of compensation to those who have been wrongly convicted
and imprisoned and also,
more specifically, about Mr Pora’s
case.
Compensation for wrongful imprisonment: a short history
[11] In New Zealand’s legal past there has been no more than a handful of cases in which compensation has been paid to a person wrongfully imprisoned due to a miscarriage of justice. That is doubtless a by-product of the historical difficulty faced by one who sought to establish that such a miscarriage had occurred. Although there has always been the possibility of a convicted person persuading the Governor-General (earlier, the Governor) to exercise the Royal prerogative of mercy and bestow a free pardon, historically, a free pardon did not have the effect of
erasing the conviction itself.5 A guilty verdict and a
conviction could only be
overturned through the appeal process. And until 1945, at least, criminal
appeal rights were restricted.
[12] First, an appeal on a point of law by way of case stated could be
brought.6
Absent any identified legal error an appeal would fail, even where the trial judge had gone on record as saying that there had been improper and irremediable influence
brought to bear upon the
jury.7
5 That position changed with the enactment of s 407 of the Crimes Act 1961.
6 Criminal Code Act 1983, s 412; Crimes Act 1908, s 442. The Court could reserve the question on application of the prosecutor or accused. If the Court refused to reserve the question, the party seeking to appeal could apply to the Court of Appeal, with leave of the Attorney-General:
ss 413 and 443 respectively. Prior to 1893, there was an even more limited right to appeal on a
question of law.
7 See the concurring judgment of Chapman J dismissing the appeal in R v Boakes (1911)
31 NZLR 449 (CA) at 458-459. The question of whether the accused had a fair trial was said to be a question of fact, not law. The Court noted, however, that it was open to the accused to apply to the Governor in Council for a new trial under s 447 of the Crimes Act 1908.
[13] Secondly, there was the ability to seek a retrial on the grounds
that the jury verdict was against the weight of evidence.8 But
from the outset, the Court of Appeal emphasised that great deference should be
accorded to the jury’s view of the facts.9 Nor was the Court
able to consider any factual matters that had not been in evidence at the
trial.
[14] And exceptionally, where the Governor had received a
petition for the exercise of the prerogative of mercy, he
could, instead of
remitting or commuting the sentence, and following “such inquiry as he
thinks proper”, order a retrial
if he entertained doubt as to whether the
person ought to have been convicted.10 While this process
permitted the Court to consider factual matters not raised at the first trial,
it was initially thought that such
a referral could only be made while the
petitioner remained incarcerated.
[15] The almost insurmountable difficulty that this state of affairs
presented for those who believed they had been wrongly convicted
is no better
demonstrated than by the case of James Meikle.11 Mr Meikle was
convicted of sheep stealing and served five years of his seven year sentence.
His subsequent attempts to clear his
name and to receive compensation lasted for
nearly 20 years and included:
(a) a successful private prosecution of the principal Crown witness for
perjury;
(b) numerous petitions to Parliament and debates in the House; (c) a Commission of Inquiry; and
(d) the eventual passage of the Meikle Acquittal Act
1908.
8 Criminal Code Act 1893, s 416; Crimes Act 1908 s 446. This ground was new in the 1893 Act.
9 R v Styche [1901] NZGazLawRp 36; (1901) 20 NZLR 744 (CA). This was the first application under s 416, and it was dismissed.
10 Criminal Code Act 1893 s 417; Crimes Act 1908 s 447.
11 Mr Meikle’s case has been the subject of a comprehensive academic study: Jeremy Finn “John James Meikle and the Problem of the Wrongly Convicted: An Enquiry in the History of Criminal Appeals in New Zealand” (2010) 41 VUWLR 519.
[16] Mr Meikle succeeded in securing two payments of compensation of
£500 (in 1897) and £2500 (in 1910). But he remained
profoundly
disgruntled.
[17] In 1945, Parliament enacted the Criminal Appeal Act, which permitted the Court of Appeal to allow appeals if it was of the view that, on any ground, a miscarriage of justice had occurred.12 The same Act contained a new provision empowering the Governor-General, in the context of any application for a pardon, to refer an applicant’s conviction or sentence to the Court of Appeal, or to seek the
Court of Appeal’s assistance on any point arising in a particular
case.13
[18] Recognition of the fact that, for all the checks and balances of the
common law criminal process, miscarriages did occur
began to take hold
internationally around this time. In his 1955 book The Proof of Guilt: a
Study of the English Criminal Trial Glanville Williams noted the emerging
American jurisprudence (led by Mr Edwin M Borchard)14 which
challenged the prevailing belief that wrongful convictions did not occur or, if
they did, that any detriment was outweighed
by the countervailing benefits of
the jury system.15 Williams referred in some detail to the
notorious misidentification cases (in the early part of the 20th century)
involving Adolf
Beck (in England) and Oscar Slater (in Scotland), the fact of
whose wrongful convictions had (eventually) been accepted. Then, he
said:16
It may be mentioned that Slater, like Beck, was “compensated” in
money terms for the ruin of his life; he was given an
ex gratia payment
of £6,000, which obviously bore, and could bear, no relation to what he had
suffered. Although the fact that compensation
was paid is satisfactory, it is
a strange defect in English law that no proceedings were open to the victim of
the injustice to test the propriety of the sum
offered. Bentham and Romilly long
ago campaigned against the absence of legal redress for wrongful
punishment - an injustice
that was remedied by most European countries in the
nineteenth century, and by a federal statute in the United States in 1938.
Some Continental countries even allow compensation for a
wrongful
12 Criminal Appeal Act 1945, s 4.
13 Section 17. That power is now found in s 406 of the Crimes Act 1961, which continues to provide a statutory adjunct to the prerogative of mercy. Most applications for the exercise of the prerogative in New Zealand seek relief under s 406 (that is, referral to the Court) rather than a pardon. Even in those cases where a pardon is sought, almost invariably the basis for the
application is that a miscarriage of justice occurred.
14 In 1932 Mr Borchard had published the book Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice (Garden City Publishing Company Inc, New York, 1932).
15 Glanville Williams The Proof of Guilt: a Study of the English Criminal Trial (Stevens & Sons
Ltd, London, 1955).
16 At 90-91 (emphasis added).
conviction that is promptly reversed on appeal. In France, for
example, an appeal court that quashes a conviction may award the victim of the
error an amount to be paid by the State,
subject to right of recovery from the
partie civile, the informer, or the false witness on whose testimony the
conviction was founded. In England, on the other hand, not even an ex gratia
payment is made where a miscarriage of justice has been corrected by the
ordinary process of law and where there has been no failure
or misconduct on the
part of the authorities concerned.
[19] A decade later (in 1966) many of Professor Williams’ wider
arguments were highlighted in England by the posthumous
pardon of Timothy Evans,
who had been executed following his wrongful conviction of the murder of his
wife and daughter in 1950.
[20] Also in 1966 (on 16 December), the ICCPR was adopted unanimously by
the General Assembly of the United Nations. Article
14 of the Covenant is
concerned with fair trial rights of the kind now reflected in ss 24 and 25 of
the New Zealand Bill of Rights
Act 1990 (NZBORA). And art 14(6)
provides:
When a person has by a final decision been convicted of a criminal offence
and when subsequently his conviction has been reversed
or he has been pardoned
on the ground that a new or newly discovered fact shows conclusively that there
has been a miscarriage of
justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to law unless it is
proved that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him.
[21] The right to compensation recognised by art 14(6) was controversial.
Of the Western countries voting at the General Assembly,
the United States,
Belgium, France, Greece and Norway favoured the inclusion of such a right.
Spain, Turkey, the Netherlands, the
United Kingdom, Ireland, Canada, Australia
and New Zealand voted against. Austria, Italy, Portugal, Denmark, Sweden and
Finland
abstained.17
[22] From Lord Hope’s relatively recent review of the ICCPR travaux préparatoires (in Adams v Secretary of State for Justice) it seems there were two principal reasons for the controversy.18 The first was the concern articulated at an early stage by Eleanor Roosevelt, who was opposed to the inclusion of art 14(6)
because she believed that its implementation would cause
significant technical
18 Adams v Secretary of State for Justice [2011] UKSC 18; [2012] 1 AC 48.
difficulties, due to the diversity of national legislation and approach.19 The second was a more widespread disquiet over its ambit and, in particular, the scope of the term “miscarriage of justice”. Lord Hope noted, for example, that the travaux evidenced unease by some, including the British delegate, that the provision might create an obligation to pay compensation just because a conviction was reversed on appeal,20 or to “persons who were clearly guilty but whose conviction had been
annulled for reasons of form or procedure”.21
[23] The words “compensated according to law” were inserted
into art 14(6) at a relatively late stage as a result
of an amendment proposed
by Afghanistan.22 The underlying thinking was that a matter as
complex as awarding compensation for a miscarriage of justice should have a
statutory
basis.
[24] The ICCPR eventually came into force in 1976. In the event, very
few of the ratifying countries entered reservations to
art 14(6). Reservations
were entered by Australia, the Bahamas, Bangladesh, Belize, Guyana, Malta,
Trinidad and Tobago, and New
Zealand.23 The New Zealand reservation
was expressed as follows:
The Government of New Zealand reserves the right not to apply article 14 (6)
to the extent that it is not satisfied by the existing
system for ex gratia
payments to persons who suffer as a result of a miscarriage of
justice.
[25] There can be little doubt that this reservation was focused on the words “according to law”.24 That phrase necessarily called into question the adequacy of an “ex gratia” compensation regime such as existed in New Zealand (and other
Commonwealth countries). Indeed, it was the inclusion of those words
that later
19 At [19].
20 At [19]
21 At [22]. The English Courts have, since the enactment of the section 133 of the Criminal Justice Act 1988 (which reflects to art 14(6)) been grappling with precisely that question. The few art 14(6) cases to have reached the European Court have not been such as to require the Court to deal with the issue.
22 Nowak, above n 17 at 353.
23 United Nations Treaty Collection “Status of Treaties: International Covenant on Civil and
Political Rights” <treaties.un.org>.
24 A point made by the Law Commission and then the Minister of Justice in 1998: Law Commission Compensating the Wrongly Convicted (NZLC R49, 1998) at [68]-[69] and Cabinet Strategy Committee Paper “Compensation or Ex-Gratia Payments for Persons Wrongly Convicted and Imprisoned” (30 November 1998) STR (98) 307 at [14]. I return to these below.
caused the United Kingdom to bow to international pressure and move to a
statutory scheme, in 1988.25
[26] As at the date of the ICCPR’s ratification it seems that New
Zealand had only made (ex gratia) compensatory payments
for wrongful conviction
and imprisonment in two instances. The first was in the case of Mr Meikle,
discussed above. The second
was the 1938 payment of NZ£500 (NZ£200
for wrongful conviction and NZ£300 for legal costs) made to a Mr Griqual,
who
had been wrongly convicted and imprisoned for one year for indecent
assault.
[27] Soon after ratification of the ICCPR, however, the Crown accepted the
recommendation of a Royal Commission of Inquiry that
Arthur Allan Thomas be paid
compensation of $1,087,450.35 for his wrongful conviction and imprisonment for
the murders of Harvey
and Jeanette Crewe.26 He had spent over nine
years in prison, and had been pardoned under the Royal prerogative the year
before.
[28] At around this time, the authorities in the United Kingdom were beginning to grapple with the fall-out from the “IRA” trials of the Guildford Four, the Birmingham Six, the McGuire Seven and Judith Ward.27 The cases highlighted that there was room for error in the criminal process itself and the limitations of appeals, in terms of identifying and rectifying miscarriages. They led to the 1993 Runciman
Report.28
26 Report of the Royal Commission to Inquire into the Circumstances of the Convictions of Arthur
Allan Thomas for the Murders of David Harvey Crewe and Jeanette Lenore Crewe (11
November 1980).
27 It was these cases which prompted Cooke P to comment, in Burt v Governor-General [1992] 3
NZLR 672 (CA) (at 681-682) that:
Fortunately in New Zealand applications for the exercise of the prerogative on the ground of alleged wrongful conviction are quite rare. Probably two or three a year would be a liberal estimate at present. ... If there were good reason to believe that injustices as revealed by some English cases are occurring or likely to occur in New Zealand under our present system, we would be disposed to favour any form of increased judicial review that could help to prevent this.
28 The Royal Commission on Criminal Justice Report (HMSO, 6 July 1993).
[29] The Runciman Report recommended that (in the United Kingdom) the
responsibility for reviewing allegations of a miscarriage
of justice be removed
from the Home Secretary and given to an independent authority. The principal
reason for this recommendation
was the Commission’s view that referral of
dubious cases by the Home Secretary back to the Courts was inconsistent with the
separation of powers. It noted that the “scrupulous” observance of
constitutional principle had led to a reluctance
on the part of the Home Office
to inquire deeply enough into the applications it received. The Criminal Cases
Review Commission
(CCRC) was therefore established in 1995, with operation from
1997.
[30] 1997 was also the year when, in New Zealand, David Dougherty applied
for compensation for his wrongful conviction and imprisonment
on charges of
abduction and sexual violation. He had served three years and three months in
prison before new DNA evidence resulted
in his acquittal at retrial.
[31] Mr Dougherty’s case prompted a decision that the ex gratia
compensation process should be formalised. So in December
1997 Cabinet asked
the Law Commission to examine whether, and in what circumstances, compensation
should be paid to persons who were
wrongly prosecuted or convicted. In the
meantime, Cabinet adopted interim criteria against which to assess Mr
Dougherty’s
claim. An application of these criteria led (in 2000) to
the grant of compensation to him totalling $868,728. That
figure
comprised $700,000 for Mr Dougherty’s non-pecuniary losses and
$168,728 for his pecuniary losses.
The Law Commission Report
[32] The Law Commission presented its report Compensating the Wrongly Convicted in September 1998.29 It recommended the adoption, for an initial trial period of three years, of a new compensation scheme. The proposed scheme would
confer a right to an assessment of compensation on anyone
who:30
29 Law Commission, above n 24.
30 At [83].
(a) had served all or part of a sentence of imprisonment; and
(b) either:
(i) was subsequently acquitted on appeal (including by way of a reference
under s 406 of the Crimes Act 1961); or
(ii) had his or her conviction quashed without an order for retrial;
or
(iii) had been pardoned; and
(c) could prove his or her innocence beyond reasonable doubt.
[33] Although recognising that the new scheme could be established either
in the exercise of the prerogative or by statute, the
Commission’s
preference seems to have been to put it on a statutory footing
because:31
(a) a statutory scheme would reduce the scope for compensation claims
to be dealt with in a discretionary or arbitrary way (or
for any perception of
arbitrariness);
(b) it would involve a formal recognition by the state of the
importance of compensating the wrongly convicted and
would likely
allow New Zealand to comply fully with art 14(6);
(c) ex gratia payments perpetuate the fiction that nothing has really gone wrong, whereas a statutory scheme would acknowledge that the law must provide for the possibility of error in the prosecution and trial
processes, and would:
31 At [180]-[188].
(i) confer rights which could only be removed by Parliament rather
than at the whim of the Executive; and
(ii) be debated in Parliament, with the opportunity for the public to make
submissions.
[34] The Commission also recommended the establishment of an independent Compensation Tribunal, which would consider issues of both eligibility and quantum. Again, the preference was for the Tribunal to be created by statute, in order to enhance its independence and accountability to Parliament, and to protect it from the possibility, however remote, of interference from or influence by the government of the day. The Commission noted that the Minister of Justice would, however, retain the authority to exercise the Crown’s prerogative power to consider
cases falling outside the scope of the scheme.32
[35] The Commission considered that there should be no right of appeal
from compensation decisions but that the Tribunal’s
assessment of
eligibility and of compensation should be subject to judicial review.
Similarly, the Commission said, a decision of
the Minister about a person whose
claim fell outside the scheme would potentially be susceptible to review,
subject to any justiciability
limits.33
[36] And lastly, the Commission’s preference was that the Tribunal’s decision-making about quantum be governed by mandatory considerations rather than merely guidelines. It said that mandatory considerations would provide clarity to the Tribunal, the claimant and the public and would encourage consistency. And again, it thought that what those factors should be was appropriately a matter for
Parliament.34
32 At [135]-[137].
33 At [173]-[179].
34 At [155].
The 1998 Guidelines
[37] On 7 December 1998 Cabinet confirmed a decision of the Cabinet
Strategy Committee to adopt Guidelines entitled “Compensation
or Ex Gratia
Payments for Persons Wrongly Convicted and Imprisoned” (the 1998
Guidelines).35 The stated aim of the Guidelines was “to make
good losses incurred when a person has been wrongly deprived of liberty,
vindicate
innocent defendants and enhance public confidence in the justice
system”.36
[38] Although it was decided not to adopt a statutory scheme, the
criteria for compensation contained in the Guidelines were based
on the Law
Commission’s recommendations, and provided that:
(a) any person who has served all or part of a sentence of imprisonment
before having their conviction(s) quashed on appeal
to the High Court or Court
of Appeal (without order of retrial), or who had received a free pardon, is
eligible to apply for compensation;37
(b) the Minister of Justice shall refer applications “meriting
further assessment” to a Queen’s Counsel,38 for an
independent assessment of:39
(i) whether the claimant is innocent beyond reasonable doubt; and
(ii) if so, an appropriate amount of compensation; and
(c) compensation is payable in respect of specified pecuniary losses
and non-pecuniary losses incurred in the period following
conviction.40
35 Cabinet Strategy Committee Minute “Compensation or Ex Gratia Payments for Persons Wrongly Convicted and Imprisoned” (2 December 1998) STR (98) M 39/6, Annex B “Criteria for eligibility and factors to be taken into account in determining the size of payments” [1998 Guidelines].
36 Cabinet Strategy Committee Minute (2 December 1998) at [c].
37 1998 Guidelines, above n 35, at [1].
38 At [2].
39 At [3].
40 At [3].
[39] Non-pecuniary losses are exclusively defined
as:41
(a) loss of liberty;
(b) loss of reputation;
(c) loss or interruption of family or other personal relationships;
and
(d) mental or emotional harm.
[40] In terms of quantifying any compensation payable, the Guidelines say
that the assessor will be required to have regard
to a number of
mitigating and aggravating factors, namely:42
(a) the applicant’s own conduct;
(b) whether the prosecution acted in good faith in bringing and continuing
the case;
(c) whether the investigation was conducted in a reasonable and proper
manner;
(d) the seriousness of the offence alleged; (e) the severity of the sentence passed; and
(f) the nature and extent of the loss resulting from the conviction and
sentence.
[41] Beyond this, however, nothing was said about how non-pecuniary
losses were to be calculated.
41 At [3].
42 At [3].
[42] The Guidelines also stipulate that an applicant for compensation has
no right of appeal from a compensation decision and
that he or she must (as a
condition of accepting any offer made) forego any civil claims against the Crown
in relation to his or
her conviction.43
[43] Cabinet also agreed that:
(a) in cases where a person was eligible to receive an ex gratia
payment, the Minister was to refer the matter to Cabinet for
a final
decision;44
(b) it reserved its discretion, in extraordinary circumstances, to
consider applications falling outside the Guidelines on their
individual merits,
where it is in the interests of justice to do so;45 and
(c) the 1998 Guidelines would be reviewed after three
years.46
2000 Additional Guidelines
[44] A man known only as MRD, who had been imprisoned for 14 months
before having his convictions quashed, was the first person
to have an
application assessed under the 1998 Guidelines.47 The QC who was
contracted to assess the application recommended payment of compensation
totalling $570,696.93. This
figure comprised $400,000 for non-pecuniary
losses and $170,696 for pecuniary losses.
[45] The memorandum prepared for Cabinet by the Minister of Justice noted that it appeared that, in calculating non-pecuniary losses, the QC had followed the English authorities on the assessment of damages for false imprisonment.48 The sum
awarded was thought to be out of step with (and higher than)
the levels of
43 At [5].
44 Cabinet Strategy Committee Minutes (2 December 1998) above n 35, at [f].
45 At [g].
46 At [h].
47 David AR Williams Report to the Minister of Justice Concerning Claim by M for Compensation for Wrongful Conviction (May 2000). MRD had also commenced civil proceedings seeking exemplary damages against (inter alia) CYPS and the Police.
48 Phil Goff “Memorandum for Cabinet Policy Committee: Compensation for a Wrongly
Convicted Individual” (Office of the Minister of Justice, 12 July 2000)
compensation awarded by New Zealand courts in similar cases, in particular
this
Court’s decision in Manga v
Attorney-General.49
[46] As a result, Cabinet agreed (on the recommendation of the Minister)
to adopt further guidelines on how the quantum of future
compensation was to be
assessed. The “Additional Guidelines on Quantum of Future
Compensation” provide that Cabinet:50
l agreed that the calculation of compensation payments under
the [1998 Guidelines] should be firmly in line with
the approach taken by New
Zealand courts in false imprisonment cases;
m agreed that. the starting figure for calculating non-pecuniary
losses should be set at $100,000 and that this base figure
is to be multiplied
on a pro rata basis by the number of years spent in custody so that awards for
non-pecuniary losses are proportional
to the period of detention;
n agreed that the figure obtained under the calculations referred to
in paragraph (m) above should be then added to the figure
representing the
amount assessed for the presence/absence of the factors outlined in the [1998
Guidelines];
o agreed that only those cases with truly exceptional circumstances
would attract general compensation under paragraph (n)
above that is greater
than $100,000, and that on average the relevant figure should even out around
$100,000;
p agreed that a claimant’s pecuniary losses should be
calculated separately, and the resulting figure should
then be added to the
amount assessed for non-pecuniary loss under paragraphs (m) to (o) above, the
sum of which represents the total
compensation payable to a
claimant[.]
[47] The Cabinet minute concludes by noting
that:51
... the Minister of Justice proposes to commission a wider review of the
machinery for determining miscarriage of justice and
compensation issues,
including any fine tuning of the additional guidelines on quantum of
compensation that may be required.
49 Manga v Attorney-General [2000] 2 NZLR 65 (HC).
50 Cabinet Minute “Compensation for a Wrongly Convicted Individual” (24 July 2000) CAB (00) M 24/6, at [l] to [p] “Additional Guidelines on Quantum of Future Compensation” [Additional Guidelines] at [l].
51 At [q].
The 2001 Amendments
[48] As noted above, when Cabinet adopted the 1998 Guidelines it had
proposed to review them after three years. This review was
conducted by the
Minister of Justice and, on his recommendation, Cabinet agreed in 2001 to make
two changes to the Guidelines.52 The more notable of the two
changes was that the standard of proof to which an applicant for compensation
had to prove his or her
innocence was reduced from “beyond reasonable
doubt” to “on the balance of
probabilities”.53
[49] The paper prepared for the Cabinet Policy Committee once again noted
that the
Ministry of Justice:54
... has a review of the processes for dealing with miscarriages of justice
generally on its work programme and that the question of
compensation for
wrongful conviction will be looked at further in the course of this
work.
Subsequent applications for compensation
[50] The Ministry’s Chief Legal Counsel, Mr Orr, deposed
that since 1998,
29 applications for compensation have been assessed and determined. Two more
were pending at the time of the hearing before me.
[51] In addition to MRD’s case, three applications falling under
the Guidelines have been successful:
(a) in 2003, Cabinet agreed to make an offer of compensation to three teenagers (Lucy Akatere, McCushla Fuataha and Tania Vini) who were wrongly convicted of aggravated robbery and imprisoned for seven months. The Queen’s Counsel appointed recommended an
amount of $60,000 per applicant for loss of liberty, between
$75,000
52 Phil Goff “Memorandum for Cabinet Policy Committee: Compensation for Persons Wrongfully Convicted and Imprisoned” (Office of the Minister of Justice, 6 December 2001), Annex B “Revised Criteria (December 2001)” [2001 Guidelines].
53 2001 Guidelines at [4]. The other change was to extend the scheme to those wrongly convicted and imprisoned as the result of a court martial process.
54 Cabinet Policy Committee Paper “Compensation for Persons Wrongly Convicted and
Imprisoned: Amendment to Assessment Regime” (7 December 2001) POL (01) 380 at [4].
and $77,500 per applicant for other non-pecuniary losses, and between
$1,259 and $5,259 per applicant for pecuniary
losses;55
(b) in July 2005, Cabinet agreed to pay compensation of $144,221.16 to
F, a military claimant who had imprisoned for 29 days
following his conviction
by a court martial for threatening to kill. That figure comprised
$8,219 for loss of liberty,
$100,000 for other non-pecuniary losses, and
$36,002.16 for F's pecuniary losses; and
(c) Mr Pora’s case (discussed in detail below).
[52] In 2011, compensation payments were also made in relation
to two applications that fell outside the Cabinet Guidelines.
They were
assessed under Cabinet’s residual discretion as follows:
(a) Philip Johnston and Jaden Knight applied for compensation in 2007 after their convictions for arson were quashed with order of retrial.56
Cabinet agreed:
(i) to compensate Mr Johnston $110,082 for non-pecuniary losses (based
on an annual rate of $140,000, pro-rated for the period
of imprisonment of nine
and a half months) and $35,929.47 for pecuniary losses; and
(ii) to compensate Mr Knight $106,151 for non-pecuniary losses
(based on an annual rate of $135,000, pro-rated to nine and a half months)
and $115,785.06 for pecuniary losses.
55 The applicants initially rejected the offer and filed an application for judicial review. The application was unsuccessful and payment was made to the applicants in 2006: see Akatere v Attorney-General (No 1) [2005] NZHC 477; [2006] 3 NZLR 705 (HC).
56 Mr Johnston was retried and found not guilty in August 2006. Mr Knight's retrial did not proceed. He was discharged in February 2007 after new evidence came to light that suggested other persons were
responsible for the arson.
(b) Aaron Farmer applied for compensation in 2008 after his conviction for sexual violation by rape was quashed with order of retrial, which did not then proceed. Cabinet agreed to compensate Mr Farmer
$336,575 for non-pecuniary losses (being an annual rate of $150,000 pro-rated
for the period of imprisonment of two years and three
months) and $15,000 to
recognise improper conduct by a Police detective.
[53] Mr Orr explained that, in these cases, the Ministry calculated
compensation for non-pecuniary loss by assessing a single
annual rate to reflect
both loss of liberty and other non-pecuniary losses, having regard to the nature
and degree of those losses
in relation to the particular applicant. In effect,
this combined the first and second steps prescribed in the Additional
Guidelines,
with the combined amount being pro-rated by reference to the years
of imprisonment. Mr Orr said that the quantification of non-pecuniary
loss
arrived at in this way was similar to the quantification of such losses which
would have been yielded by an application of the
Guidelines. On the face of
the figures themselves, however, it is difficult to be certain about
that.
Comment on the quantification of non-pecuniary losses under the
Guidelines
[54] It is necessary to interpolate at this point that the process set
out for the quantification of non-pecuniary losses in
the 2000 Additional
Guidelines is not entirely clear on its face. In particular, the
relationship between the
pro-rated amount and the role of the aggravating and
mitigating factors is confusingly phrased. That was a point made by Ms
McDonald QC in her report on the claims by Ms Aketere, Ms Fuataha and Ms
Vini and it no doubt played a part in their decision
to challenge the coherence
and application of the Guidelines by way of judicial review. It appears,
however, that no action was
taken in response to Ms McDonald’s
recommendation that the wording be looked at again.
[55] What is important for present purposes, however, is that the three claims which have been determined under the Guidelines have each been quantified by reference to the analysis which has consistently been proposed by Ministry officials
in their advice over the years and which is set out in Keane
J’s judgment in Akatere.57 There is, accordingly,
no inconsistency concern on that front. But for reasons that will later become
obvious it is necessary to
set out that analysis here:
(a) step one involves taking the $100,000 annual benchmark for loss
liberty and pro rating it for the amount of time a claimant
has been wrongly
imprisoned;
(b) step two involves an additional (“one-off”) $100,000 figure which is to be the starting point for an assessment of the other heads of non-pecuniary loss (loss of reputation, family or other personal relationships and mental or emotional harm). That figure is then to be adjusted up or down having regard to the aggravating or mitigating
factors listed in the Guidelines (see [40] above);58
and
(c) the end step two figure is then added to the pro-rated step one
figure to give the total sum payable for non-pecuniary
loss;59
(d) step three is a separate calculation of the pecuniary loss, which
is then added to the non-pecuniary loss to determine the
total
compensation.
[56] Two relevant points can be made about this methodology:
(a) neither of the (separate) $100,000 benchmarks has been changed in
the 17 years since their adoption in 2000;
and
57 Akatere, above n 55, at [52].
58 The Guidelines record an expectation that “on average” this would “even out” around $100,000
and that, only in “truly exceptional circumstances”, would awards of over$100,000 be made.
59 The most obvious alternative approach (based on the wording of the Guidelines itself, but at
odds with the example given in them) would be for “step two” to involve an adjustment to the “step one” annual figure, by reference to the specified aggravating and mitigating factors and then for the resulting (combined) figure then to be pro-rated by reference to the duration of the imprisonment. That approach seems to me to be more consistent with that taken in the false imprisonment cases, and with the wording of the Guidelines. It is also the approach taken in the two non-Guideline cases (discussed at [52] above).
(b) only the step one figure is pro-rated for the length of time a
claimant has been wrongly imprisoned, despite the fact that
the losses that are
intended to be compensated by the step two figure may well be of a kind that are
exacerbated by the length of
time spent incarcerated.60
Mr Pora’s case
[57] I begin by summarising the factual background to Mr Pora’s
claim.61
[58] On 23 March 1992, Susan Burdett was raped and murdered at her Auckland
home. Police inquiries into the murder were initially
unsuccessful. But a year
later, on 18 March 1993, a 17 year old Teina Pora was arrested on charges
unrelated to the attack on Ms
Burdett. During subsequent interviews with Police
Mr Pora told them he was present when two other attacked and killed Ms Burdett.
He named the two men.
[59] In June 1994 Mr Pora alone was tried and convicted of aggravated
burglary and of being a party to the rape and murder. The
Police had by that
stage ascertained that the two men identified by Mr Pora were not involved. Mr
Pora was sentenced to life imprisonment.
[60] In 1996 Malcolm Rewa was arrested and charged with the sexual violation or attempted sexual violation of 27 women. The Police investigation into these sexual crimes had established a connection between his DNA and samples recovered from Ms Burdett's body. Mr Rewa was charged with the rape and murder of Ms Burdett. In December 1998 Mr Rewa was convicted of raping Ms Burdett but the jury was
unable to agree on the murder
charges.
60 This results in an approach that is likely to be more generous to those who are wrongly imprisoned for a short period of time, as F’s case most starkly shows. F spent one month in prison (valued at $18,219 under step one) yet received an additional $100,000 under step two. Compare Mr Pora, who spent almost 20 years in prison yet received just $225,000 under step two.
61 The account which follows is largely taken from Mr Hansen’s eligibility report.
[61] Following Mr Rewa’s conviction for Ms Burdett’s rape, Mr
Pora appealed against his convictions to the Court of
Appeal. The appeal was
allowed, and a new trial ordered.62 But on 6 April 2000 he was
for a second time found guilty of murder, sexual violation, and aggravated
burglary. He was sentenced
to life imprisonment.63
[62] In 2013 Mr Pora sought leave to appeal to the Privy Council and leave was granted in January 2014. On 3 March 2015 the appeal was allowed and his convictions were quashed.64 An order that he should not be retried was made on
30 March 2015. Mr Pora then applied for compensation was made on the grounds
that he had been wrongly convicted and imprisoned.
Mr Hansen’s eligibility report
[63] On 4 June 2015 the Minister of Justice asked Mr Hansen to assess Mr
Pora’s eligibility for compensation. Accordingly,
Mr Hansen’s first
report was focused on the threshold question, namely whether, on the balance of
probabilities, Mr Pora was
innocent of the crimes for which he had been
convicted. Mr Hansen received submissions from both Mr Pora and the Crown Law
Office.
He examined the evidence that had been before the courts as well as
new evidence produced by each of the parties for the purpose
of his
inquiry.
[64] Mr Hansen's key findings in support of his conclusion that Mr Pora
had established his innocence on the balance of probabilities
were:65
(a) Mr Pora's confessions to Police, affected by his foetal alcohol spectrum disorder (FASD), were a clear fabrication and cannot be relied upon. In particular, Mr Pora did not disclose anything to Police that he could have known only had he been present at the attack on
Ms Burdett;
62 R v Pora CA447/98, 18 October 1999.
64 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277.
65 Eligibility Report, above n 1, at [306]-[311].
(b) evidence said to corroborate Mr Pora’s confession is
unreliable as it came from family members who had already concluded
that he was
guilty;
(c) evidence relied on to show an association between Mr Pora
and Mr Rewa is also unreliable. Mr Hansen said the
undisputed evidence leads to
the “irresistible inference” that Mr Rewa acted alone in the sexual
violation and murder
of Ms Burdett and that there was no credible evidence he
was accompanied by Mr Pora.
[65] Mr Hansen concluded that the “state of the evidence” is
such that not only had Mr Pora established his innocence
on the balance of
probabilities, he “could have proved his innocence to an even higher
standard”.66
Mr Hansen’s quantum report
[66] Mr Hansen’s second report was concerned with assessing the
quantum of compensation that would be payable to Mr Pora
under the Guidelines.
He followed the three-step approach to the calculation set out above, as
follows:
(a) Step one: based on the annual $100,000 figure in the
Guidelines
Mr Hansen recommended that Mr Pora receive compensation of
$1,961,895 for loss of liberty in recognition of the 19 years, seven months
and 13 days he had spent in prison after his
conviction.67
(b) Step two: Mr Hansen considered Mr Pora’s other non-pecuniary losses to be “of such a magnitude” that a starting point of $225,000 was appropriate to reflect the nature and extent of his loss overall, the seriousness of the offences alleged, the severity of the life imprisonment sentence, and restrictive periods spent on bail and
parole.68 Mr Hansen expressed the view that the
prosecution had
66 At [312].
April 2014.
68 At [78].
acted in good faith and so found that the conduct of the prosecution was a
neutral factor.69 In terms of the remaining aggravating and
mitigating factors contained in the Guidelines, Mr Hansen’s
assessment
was that:
(i) Mr Pora did voluntarily try to convince Police he was present at the attack on Ms Burdett. But he said that the question of Mr Pora’s responsibility for his conviction and imprisonment could not be divorced from consideration of the nature and level of his psychological dysfunction, in particular his foetal
alcohol spectrum disorder;70 and
(ii) there were deficiencies in the Police investigation into the attack on Ms Burdett, including an apparent unwillingness by Police to revisit the theory of the case once Mr Rewa's involvement came to light and a failure to critically examine the evidence of witnesses with suspect credibility. Further, Mr Hansen also identified “concerning departures from best practice” in such matters as the identification process adopted for the purpose of establishing links between Mr Pora and Mr Rewa, the disclosure of evidence in response to requests
from Mr Pora, and record keeping;71 and
(iii) these two factors balanced each other out.72
He therefore recommended no adjustment to the $225,000 baseline figure for Mr
Pora’s other non-pecuniary losses.
(c) Step three: Mr Hansen recommended that Mr Pora be compensated
$334,054.42 for pecuniary loss. This sum comprises $100,000 for loss of
earnings while in custody, $100,000 for loss of future earnings
69 At [51].
70 At [39]-[41].
71 At [73].
72 At [81].
potential, and $134,054.42 for costs incurred on behalf of Mr Pora (that is,
costs for lawyers, an investigator, a psychologist and
an
actuary).73
[67] As noted above, Mr Hansen explicitly recommended that the amounts
for non-pecuniary losses at stages one and two be adjusted
for inflation to
recognise the effect of the passage of time on the real dollar value of the
$100,000 benchmark. More specifically,
he said:
[18] The Guidelines make no provision for inflation adjustments to the
sums specified. As I am asked to give advice
in accordance with the
Guidelines, there is no room to propose an adjustment to recognise the
progressive decline in real terms
in the level of compensation payable since the
Additional Guidelines were introduced. It must be recognised nevertheless
that,
in real terms, claimants will be compensated on a different basis
depending on when their claim is settled. Later claimants will
be
disadvantaged. The rate at which claimants in Mr Pora’s position will be
compensated, will decline the longer they remain
in prison. That appears to be
anomalous and unjust.
[19] If it is intended that levels of compensation should be maintained
in real terms at the levels payable when the Guidelines
were introduced and that
claimants should, in substance, be treated equally, consideration should be
given to adjusting compensation
payable to Mr Pora for loss of liberty to
reflect the decline in the value of money.
[68] Mr Hansen repeated his recommendation that Mr Pora’s
non-pecuniary losses be inflation adjusted on two other occasions
in his
report.74
The Ministry’s report to the Minister
[69] The Minister sought advice about Mr Hansen’s recommendations from the Ministry of Justice. Those parts of the resulting report (dated 31 May 2016) which relate to the inflation adjustment issue were in evidence before me. In that regard the
Ministry’s advice
was:75
73 At [101]. Mr Hansen recommended sums for loss of earnings and loss of future earning abilities that are notional and relatively modest. This is because, prior to his conviction, Mr Pora had no employment history upon which Mr Hansen could base an assessment of likely earnings.
74 At [82] and [103].
75 Jeff Orr “Claim for Compensation for Wrongful Conviction and Imprisonment: Teina Anthony
Pora” (Ministry of Justice, 31 May 2016).
[22] ... Mr Hansen commented that if, when the Cabinet Guidelines were
introduced, Cabinet intended that “levels of compensation
should be
maintained in real terms at the levels payable” and that “claimants
should, in substance, be treated equally”
over time, then Cabinet might
consider adjusting the compensation payable to Mr Pora to reflect
inflation. Mr Hansen has
made this recommendation in relation to both
stages of non-pecuniary loss.
[23] When it introduced the Cabinet Guidelines, Cabinet did not provide for non-pecuniary loss to be adjusted for inflation. Cabinet must have therefore been satisfied that the $100,000 annual rate would be appropriate for at least the next few years. However, it has now been fifteen years since the Cabinet Guidelines were introduced, and there has been a real decline in the purchasing power of $100,000. In today’s terms, that rate now equates to
$138,000.
[24] As you are aware, the Ministry is currently undertaking a review of the Cabinet Guidelines. We consider that the question of inflation indexing should be considered as part of that review, so that it may be assessed in the context of other features of a revised scheme. We note, for example, that
$100,000 per year for loss of liberty is still relatively high, compared to many other jurisdictions which cap compensation for the wrongly convicted
and imprisoned at lower amounts. There may also be others ways (for
example, periodic review) of providing for the scheme to take account of inflation. If an adjustment for inflation was made for Mr Pora now, it would
be difficult to depart from that approach in the wider review.
[70] The Ministry’s recommendation was not to adjust for
inflation.
The Minister’s report to Cabinet
[71] On 9 June 2016 the Minister lodged a memorandum with Cabinet about Mr Pora’s claim. In it, she recorded that the Ministry was “satisfied that Mr Hansen conducted a fair inquiry in relation to both of his reports, and that his reports are thorough, robust and reliable”.76 She asked Cabinet to accept Mr Hansen’s advice that Mr Pora was innocent on the balance of probabilities and that he should be compensated $2,520,949.42. She said “This sum is broadly in line with recent
compensation payments, as well as the largest payment to
date.”77
9 June 2016) at [31].
77 At [32].
[72] She went on to say:
[33] I do not consider it would be appropriate to act on Mr Hansen's
recommendation that the sums for non-pecuniary loss be adjusted
upwards to
reflect inflation. Cabinet did not provide for inflation indexing when it
introduced the Additional Guidelines in 2000.
Cabinet must therefore have been
satisfied that the $100,000 rate would be appropriate for at least the next few
years.
[34] However it has now been sixteen years since the Additional
Guidelines were and there has been a real decline in the purchasing power of
$100,000. In today’s terms, that rate now equates to $138,000.
[35] Officials are currently undertaking a review of the Cabinet
Guidelines. That review will consider the question of amending the current
$100,000 figures or providing for some form of inflation adjustment. Parity with other jurisdictions should also be considered, as the $100,000 annual
rate is still relatively generous in comparison many other schemes. The options should be assessed in the context of other features of a revised
scheme.
[36] However, if an adjustment for inflation was made for Mr Pora now,
it would be difficult to depart from that approach in
the wider review. I add
that no other claimant has had their recommended compensation for
non-pecuniary loss adjusted for
inflation.
[73] The Minister therefore asked Cabinet to agree that Mr Pora's
compensation for non-pecuniary loss not be adjusted for inflation.
The Cabinet decision
[74] On 13 June 2016 Cabinet accepted all the Minister’s
recommendations.78
Although (as is ordinarily the case) no separate reasons were formally given
by Cabinet for its decision, they were subsequently summarised
by the Minister
as follows:79
(a) the Guidelines do not provide for payments to be adjusted for
inflation;
78 Cabinet Minute “Application for Compensation for Wrongful Conviction and Imprisonment:
Next Steps” (13 June 2016) CAB-16-MIN-0276.
79 Justice and Electoral Committee “Corrected Transcript: 2016/17 Estimate of Vote Justice and
Vote Courts” (16 June 2016) at 5.
(b) the absence of inflation adjusting in the Guidelines is not
unusual: many fees, charges and payments in the Crown system
do not
automatically provide for inflation adjusting;
(c) Cabinet needed to be mindful of the eight other people compensated
under the Guidelines whose payments were not adjusted
for inflation;
(d) Cabinet was “comfortable that $100,000 per year for the time
of incarceration was still an appropriate amount”
to compensate for loss
of liberty;
(e) Mr Pora was also to receive additional sums of compensation for his
“other” non-pecuniary losses and his pecuniary
losses (steps two and
three) which were assessed “in real dollar values” by Mr Hansen
“entirely at [his] discretion”;
and
(f) the annual rate of $100,000 per year of incarceration “still
sits very well” when compared internationally.
Subsequent events
[75] An offer on the basis of the Cabinet decision was duly made to Mr
Pora. On
16 June 2016 his lawyer wrote to the Minister advising that Mr Pora would accept the compensation offer if he was permitted to bring an application for judicial review of Cabinet’s decision not to inflation adjust the payment. On 17 June 2016 the Minister accepted this proposal. Mr Pora signed a Deed of Release reflecting the agreement. His compensation payment of $2,520,949.42 was made on
21 June 2016.
[76] On 3 November 2016 Mr Pora filed these judicial review proceedings.
The judicial review application
[77] The statement of claim focuses on:
(a) the 13 June 2016 Cabinet decision not to inflation adjust
the
$2,186,895 compensation paid for non-pecuniary losses;80 and
(b) the public statement made by the Minister on 15 June 2016.
[78] These two decisions are, in reality, one and the same. The second
is simply the announcement of the first. I do not propose
to differentiate
between them. In substance, the claim is centrally concerned with the Cabinet
decision itself, and (implicitly)
the advice leading up to it.
[79] The statement of claim impugns the Cabinet decision on all the
orthodox grounds of review:
(a) error of law and errors of construction of the Guidelines; (b) failure to take into account relevant considerations,
(c) taking into account irrelevant considerations;
(d) unreasonableness (and that it “breached human rights, was
anomalous
and unjust”);
(e) material error of fact;
(f) breach of legitimate expectation that the Guidelines “would
be applied to fulfil their stated objectives, intention
and purpose” (that
is, be inflation adjusted); and
(g) breach of natural justice/failure to
consult.
80 The challenge is to the refusal to inflation adjust both the step one and step two figures.
[80] Mr McCoy’s submissions, however, did not traverse all
these grounds. Rather, he submitted that it is “of
no real moment”
to isolate any particular one of them. The central contention was, instead,
that “something in public
law terms has gone terribly wrong” and Mr
Pora has, thereby, suffered “a new and different
injustice”.
[81] The substantive remedy sought in the pleadings is a declaration
that, on their proper construction, the Guidelines require
inflation adjustment,
and that the Cabinet decision (not to inflation adjust) be quashed. Claims for
interest and costs are also
made.
The Crown position
[82] Briefly put, the Crown position in response is that:
(a) Mr Hansen, the Ministry and the Minister construed and applied the
Guidelines correctly, and that there can be no error
in Cabinet acting upon his
conclusion in that regard; and
(b) any refusal to accept Mr Hansen’s recommendation that there
be an inflation adjustment and to depart from the Guidelines involves the
exercise of a policy discretion, and is not justiciable for want of any
applicable legal standard.
Justiciability
[83] As Mr Rishworth QC said, it is now trite that exercises of the prerogative are, prima facie, justiciable and that no power is considered inherently unreviewable by virtue of its source alone. As just noted, he did nonetheless contend that the Court was not competent to engage with the second limb of Mr Pora’s claim. For that reason, and because the earlier decision of this Court in Akatere v Attorney-General arguably suggests that Cabinet decisions about or under the Guidelines are not justiciable at all, it is necessary, I think, to address the justiciability point in a little
more detail at the outset.81 The decision in
Akatere itself is a useful springboard.
81 Akatere (No 1), above n 55.
Akatere
[84] As noted earlier, Akatere concerned the 2003 claims for
compensation by three young women who had each been wrongly imprisoned
for around seven months.
They sought judicial review of the compensation
offered to them, which had been assessed under the Guidelines. The principal
basis
for the challenge was the contention that the 2001 Guidelines and the
Additional Guidelines could not be reconciled and that the
Guidelines as a whole
were irrational, arbitrary and unfair.
[85] In dismissing the application for review, Keane J said:
[39] The issue is of such significance that, if I were to put the point,
I would ... hold back. To reserve the issue for a
higher Court I would hold
that Cabinet’s decisions, in the circumstances of this case, are not
susceptible of review. But
I need not, I think, go that far. For reasons that
I shall shortly set out Cabinet’s decisions, I consider, were open to it
to make and involve no error.
[40] The standard against which Cabinet’s decisions, relevant to
this case, are to be measured, if they are to be measured
at all, can only be,
it seems to me, Wednesbury unreasonableness.
[86] The Judge went on, however, to make it clear that he would reject
the claim on its merits, in any event.
[87] The Judge’s stance on justiciability was expressed more firmly
in his second judgment, which dealt with an application
for recall. There, he
said:82
[15] In my decision I held that the offer of compensation made by the
Cabinet is non justiciable, but went on to say that, if
it were justiciable, the
only basis on which it could be assailed would be if it were unreasonable in the
Wednesbury sense.
[88] It seems arguable that the dicta from Keane J’s substantive judgment indicate that he was limiting his comments to the specific case before him. But to the extent that they, or the second judgment, suggest that there is some broad “in principle” basis on which a compensation decision under the Guidelines is not justiciable, I am respectfully unable to agree with it. Indeed, as I hope the following analysis will
show, there are many factors that compel the opposite
conclusion.
82 Akatere v Attorney General (No 2) HC Auckland CIV-2004-404-6217, 1 March 2006.
Discussion
[89] The starting point is that, in my view, both the nature and subject
matter of the compensation decision in question favours
potential curial
oversight.
[90] First, the decision is governed by publicly available
Guidelines, which constitute a yardstick against which
the decision can be
measured. Articulated expressions of policy may give rise to
enforceable obligations and
their interpretation is capable of
constituting a question of law.83 The proper
interpretation of a written scheme or Guidelines (and any scope for departure
from them) is the kind of matter with which
the Courts are commonly required,
and are wholly competent, to deal.84
[91] Secondly, the decision concerns the assessment of appropriate
compensation for a person who has been wrongly imprisoned.
It is centrally
concerned with, and has a direct effect on, individual rights. Again, those are
matters commonly regarded as being
well within the Courts’ competence.
For example, the English Courts have, on numerous occasions, been prepared to
exercise
their supervisory role in relation to decisions about compensation for
miscarriages of justice.85
[92] Thirdly, I do not think the Courts’ competence is diminished
by the fact that the payment of compensation here is a
prerogative or “ex
gratia” matter.
[93] In terms of prerogative powers, the potential for review will depend on the nature and quality of the power concerned. I have spoken about that already above. The authorities make it clear that the exercise of the prerogative of mercy and its adjuncts is qualitatively different from the exercise of the prerogatives touching on foreign relations and national security, which continue to be accepted as likely to be immune from review. Moreover, the possibility of reviewing the prerogative of
mercy that was first acknowledged, in theory, by the New Zealand Court
of Appeal
83 A point discussed further at [105] and [106] below.
84 See R v Criminal Injuries Compensation Board ex parte Lain [1967] 2 QB 864; R v Criminal Injuries Compensation Board ex parte Schofield [1971] 1 WLR 926 (QB) and R v Criminal Injuries Compensation Board ex parte Ince [1973] 1 WLR 1334 (CA).
85 R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18, [2005] 1 AC 1; In re McFarland [2004] UKHL 17, [2004] 1 WLR 1289; R (O’Brien) v Independent Assessor [2007] UKHL 10, [2007] 2 AC 312.
in Burt v Governor-General has since become a reality, at
least in the United
Kingdom.86
[94] Similarly, there are numerous English authorities in which judicial
review of payments (or refusal to make payments) under
ex gratia compensation
schemes has been entertained.87 And at a more specific level, I
consider that there are particular aspects of the “ex gratia” scheme
presently in question
which point clearly in favour of justiciability
here.
[95] I begin with the definition of “ex gratia payments”
given by Lord Diplock in
R v Criminal Injuries Compensation Board ex parte Lain. He said:
88
The concept of ex gratia payments by the Crown to subjects is a familiar one.
It gives rise to no rights in the unpaid subject to
enforce payment by civil
action for a money judgment or a declaration of rights ... or by prerogative
writ of mandamus ....
[96] It must, I think, be acknowledged that it would not be open to one such as Mr Pora to enforce payment of compensation by way of civil action for a money judgment. But the position in terms of a declaration of rights is not so clear-cut. My own view is that it would be inconceivable (for example) that the Court would not intervene in the event that the Crown had accepted Mr Pora’s innocence (and therefore that he had been wrongly imprisoned) but then refused to pay him any compensation at all. Nor (in light of its ratification of the ICCPR) do I think that the Crown could properly abandon the “ex gratia” scheme all together, without
replacement (or at least not without amending its reservation).89
As Cooke P said in
Burt, there comes a point when what may once have been an arbitrary
matter of
grace and favour becomes an “an integral element in the criminal
justice system, a
constitutional safeguard against
mistakes”.90
86 See R v Secretary of State for the Home Department ex parte Bentley [1994] QB 349 and Lewis v Attorney-General of Jamaica [2000] UKPC 35; [2001] 2 AC 50 (PC).
87 See Lain, Schofield, Ince (above n 84) and R v Ministry of Defence Ex parte Walker [2001] 1
WLR 806 (HL).
88 Lain, above n 84 at 885-886.
89 In my view the existing reservation entered by New Zealand in relation to art 14(6) is, clearly, a limited one. As discussed earlier, it is concerned principally with the desire to preserve the ability to maintain a prerogative, rather than a statutory, compensation scheme. It cannot be seen as a denial of the right itself
90 Burt above n 27 at 681.
[97] Even if I am wrong in that, and the reservation entered by New
Zealand in relation to art 14(6) means that there is no strict
“right” to compensation in a qualifying case, the very act of
promulgating the Guidelines suggests that those such as
Mr Pora would have a
legitimate expectation of receiving payment under them, at least in the absence
of any notified change to the
Guidelines or of the policy underlying
them.
[98] Moreover, although an “ex gratia” payment does not
signify any admission of legal liability by the Crown, the
fact that applicants
for compensation are, in order to be paid, required to give up their
right to sue (which, depending
on the circumstances, may well have value)
suggests that there an element of mutuality which also diminishes any residual
“grace
and favour” involved.
[99] So for all these reasons I consider that viewing the issue of
justiciability through an “ex gratia” lens is neither
meaningful nor
helpful. Neither the descriptor itself, nor an examination of its content,
precludes judicial review of the matters
presently at issue.
[100] The last matter that is potentially relevant to the justiciability
question relates to the identity of the final decision-maker.
I do not take
lightly the deferential relationship that should exist between Cabinet and the
Courts. But the cases make it clear
that Cabinet decisions are not absolutely
immune from review.91 And while, in some instances, effective review
might be impeded by the absence of any record of the reasons for a particular
Cabinet
decision, that is not the case here.
[101] More fundamentally, however, it seems to me that identifying and remedying miscarriages of justice is an area in which the Courts and the Executive have long since been engaged in a cautious kind of joint enterprise. So just as the Courts accept that the separation of powers does not preclude the exercise of the prerogative of mercy, it must, I think, be accepted that the separation of powers does not
preclude the Courts having cautious oversight of the Executive processes
by which
91 McLellan v Attorney-General [2016] NZAR 859 (HC) at [57]; Minister for Arts, Heritage and
Environment v Peko-Wallsend Ltd (1987) 15 FCR 274 at 301.
justice to the exonerated is attempted to be done, or injustice attempted to
be remedied. As the Court of Appeal said in Burt:92
The argument presented for the Crown by Mr Thompson, after taking the
statutory power point, invoked as to justiciability the line
of cases already
cited. One submission added was that, as the Governor-General in exercising the
prerogative is able in effect to
override the result of Court proceedings, it
would be incongruous if the Courts could in turn review the procedure of the
superior
authority. We do not see real cogency in that suggestion. In the great
majority of cases it will be matters that have allegedly come
to light since the
trial and the appeal upon which the petitioner relies. Moreover judicial review
would be concerned with the merits
in, at best, no more than a most limited
way.
[102] It nonetheless remains true (to my knowledge) that there has
been no successful judicial review of a Cabinet decision
(as opposed to a
decision made by the Governor General in Council) either in New Zealand or in
other cognate jurisdictions. I acknowledge
that the judicial rubber may well
hit the road if and when it comes to the question of relief.
[103] But for now, my conclusion is that all the matters raised by the
claim are clearly justiciable. The subject matter and the
authorities
overwhelmingly favour that view. The existence of the Guidelines underscores and
supports it.
[104] And with that, I turn to the question of review itself.
Interpreting the Guidelines
[105] As mentioned earlier, the case law makes it clear that the interpretation of policy documents such as the Guidelines involves a question of law which is properly subject to judicial oversight and intervention. That was established over
50 years ago in Lain, in relation to a compensation scheme established under the
Royal prerogative.93 More recently, the line of authorities
beginning with Lain was affirmed in R v Ministry of Defence ex parte
Walker, where Lord Slynn said:94
92 Burt, above n 27, at 681.
93 Lain, above n 84.
94 Walker, above n 87, at 810 (citations omitted).
It is plainly open to the court on an application for judicial
review to consider whether the Ministry of Defence
has correctly
interpreted the scheme (as originally made, or as subsequently modified) or
whether its decision involves an error
of law.
[106] See too Lord Steyn in In re
McFarland:95
In my view, however, in respect of the many kinds of “soft laws”
with which we are now familiar, one must bear in mind
that citizens are led to
believe that the carefully drafted and considered statements truly represent
government policy which will
be observed in decision-making unless there is good
reason to depart from it. It is an integral part of the working of a mature
process
of public administration. Such policy statements are an important source
of individual rights and corresponding duties. In a fair
and effective public
law system such policy statements must be interpreted objectively in accordance
with the language employed by
the minister. The citizen is entitled to rely on
the language of the statement, seen as always in its proper context. The very
reason
for making the statement is to give guidance to the public. The
decision-maker, here a minister, may depart from the policy but until
he has
done so, the citizen is entitled to ask in a court of law whether he fairly
comes within the language of the publicly announced
policy. That question, like
all questions of interpretation, is one of law.
[107] As Lord Steyn went on to make clear, however, the difficulty is how
that interpretive exercise is to be undertaken.96 He
said:97
And on such a question of law it necessarily follows that the court does not
defer to the minister: the court is bound to decide such
a question for itself,
paying, of course, close attention to the reasons advanced for the competing
interpretations. This is not
to say that policy statements must be construed
like primary or subordinate legislation. It seems sensible that a broader and
wholly
untechnical approach should prevail. But what is involved is still an
interpretative process conducted by a court which must necessarily
be approached
objectively and without speculation about what a particular minister may have
had in mind.
[108] The proposition that an objective but “wholly untechnical” approach is appropriate derives support in New Zealand from the decision of the Court of Appeal in Patel v Chief Executive of the Department of Labour, which was concerned with the vires of the Government’s residence policy, set and published under the
Immigration Act 1987.98 The Court held
that, as a matter of “reasonable
95 McFarland above n at 85 at 1299. Lord Steyn’s judgment was a dissenting one.
96 Lord Steyn was critical of the apparently subjective interpretive approach seemingly adopted by
Lord Bingham.
97 At 1299.
98 Patel v Chief Executive of the Department of Labour [1997] NZAR 264 (CA).
construction”, the policy was capable of sense. As to the
relevant interpretive standard to apply the Court said:99
A policy document, such as the one in issue, is not to be construed with the
strictness which might be regarded as appropriate to
the interpretation of a
statute or a statutory instrument. It is a working document ... . It must be
construed sensibly according
to the purpose of the policy and the natural
meaning of the language and the context in which it is employed, that is, as
part of
a comprehensive and coherent scheme. ...
[109] That is the approach I intend to take here.
[110] The following points seem relevant to this interpretive
exercise.
[111] First, it is indisputable that the Guidelines do not expressly refer
to inflation adjusting. But they do not prohibit it
either. Indeed the very
fact that it was thought necessary to justify the decision not to inflation
adjust by reference to
matters extraneous to the Guidelines suggests that
that was the Ministry’s and the Minister’s own view.
[112] Secondly, in 2000 when the $100,000 figure was adopted, and a year later when the three year review of the original 1998 Guidelines was conducted, it was expressly anticipated that a wider Ministry review of miscarriages of justice would provide an opportunity to revisit the question of appropriate compensation.100 So while it may well be assumed that Cabinet considered that $100,000 would be an appropriate benchmark for “the next few” years, there is no basis for assuming that it
was intended to continue to apply without review in the medium to long term.
And as time went on, any reasonable reader of the Guidelines
would understand
the potential effect of inflation was having on that benchmark
figure.
[113] Relatedly, there is no evidence to suggest that there has been any change to the Guidelines’ underlying policy or purpose or that any conscious decision has been taken to reduce the level of compensation thought appropriate in 2000. Nor is there any evidence to suggest that it was intended to treat Mr Pora differently from (more
parsimoniously than) earlier claimants under the
Guidelines.
99 At 271.
[114] Thirdly, the overarching and
fundamental purpose of the Guidelines is remedial. They are concerned with
putting
right, so far as possible, serious wrongs. That remedial purpose
confirms that a fair, large and liberal approach should be taken
to their
application. Their object is as important as the precise wording used. It is
for that reason there can be no apt
analogy drawn between compensation
determined under the Guidelines and other, mundane, statutory fees, charges and
payments.
[115] As well, and by definition, a specific purpose of the Guidelines is
to ensure a consistent approach to the assessment of compensation
in cases
falling under them. More particularly, the adoption in the Guidelines of the
$100,000 annual loss of liberty benchmark,
and the listing of specific
aggravating and mitigating factors was necessarily concerned to ensure that a
specific (and consistent)
approach be taken to calculating the quantum of
non-pecuniary losses in future.
[116] Fourthly, compensation under the Guidelines for non-pecuniary losses
was intended to reflect, in a general way, awards in
the New Zealand Courts (in
Manga in particular) for false imprisonment in terms of both quantum and
methodology. The Guidelines expressly state this.
[117] Fifthly, and as Mr McCoy submitted, in awarding damages for
non-pecuniary loss in false imprisonment (and other tortious)
claims the Courts
routinely provide for (and are required to provide for) inflation adjustment to
existing benchmarks. Consistency,
fairness and the need to maintain public
confidence, require it. As I have said, any reasonable person who turned his or
her mind
to the time value of money would understand and expect such
adjustment.
[118] Mr McCoy’s point is confirmed by the fact that, from 1999 onwards, the New Zealand Courts have used the decision in Manga as a starting point when arriving at appropriate awards in false imprisonment cases, but made adjustments for inflation to the figures adopted by Hammond J in that case. A very recent example of that approach can be seen in the decision of this Court in Gardiner v Chief
Executive Department of Corrections101
There, Dunningham J determined that,
101 Gardiner v Chief Executive Department of Corrections [2017] NZHC 1831.
based on the Manga benchmark and the various aggravating and
mitigating factors at play, an appropriate award (for wrongful imprisonment
lasting a month)
was $7000. But then, she said:
[71] The next issue is whether, given Mr Manga’s case was decided in 1999, there should be an adjustment to reflect inflation. In my view, that is appropriate. When looking to achieve parity between awards of damages, the Court will take account of the passage of time and need to make some allowance for inflation. In this case, the only statistical data I have been provided with is the change in value of wages provided through the quarterly employment survey. I take it from the plaintiff’s submissions that if the combined consumers [sic] price index was utilised it would be a materially lower increase. Taking these matters into account, I consider that a figure of
$10,000 compensation would be sufficient to provide redress to the plaintiff
in all the circumstances of the case and I award that
amount.
(footnotes omitted)
[119] It may be observed that that $3000 adjustment equated to a 43 per
cent increase on the original (Manga-based) figure. Compare the 38 per
cent adjustment which the evidence suggests would be appropriate in Mr
Pora’s case.
[120] As Mr McCoy also submitted, the need to ensure that the level of damages awards keep pace with inflation is regarded by the Courts as a matter of positive obligation. This has been emphasised in the United Kingdom, where the continued availability of personal injury claims means that the issue of the appropriate measure of tortious damages for non-pecuniary loss is a matter which comes regularly before the Courts. For example, in a 2012 Practice Note, Lord Judge noted that earlier decisions indicated an intention that the Court of Appeal would have responsibilities
for keeping tariffs and guidelines up to date. Then, he
said:102
[10] As Lord Woolf MR also said in Heil v Rankin, ... consistency
of approach in the assessment of damages, whether special or general, is
“important”, partly because
it is a fundamental aspect of justice,
and partly because it assists settlement. ...
[11] At paras 28–9 of Heil, Lord Woolf MR then emphasised
“the continuous responsibility of the court” both “to set
damages”, and “to
keep the tariffs up to date”. He then
emphasised that changes could be justified by “changes which take place in
society”
and should by no means be confined to changes in the value of
money. ...
102 Reported as Simmons v Castle [2012] EWCA Civ 1039, [2013] 1 WLR 1239.
[12] These observations make it clear that this court has not merely the
power, but a positive duty, to monitor, and where appropriate
to alter, the
guideline rates for general damages in personal injury actions.
[121] When all the above matters are taken into account, I consider that the fact that the Guidelines do not expressly refer to inflation adjustment is not decisive. In light of their remedial purpose, the guiding principle must surely be what the interests of justice require in the particular case, provided those interests can be met without cutting across the policy and purpose of the Guidelines. And first and foremost the interests of justice require that successful applicants should, at least broadly speaking, be treated consistently, in terms of how their non-pecuniary losses are valued. Treating like cases alike, is the bedrock of rationality and the very reason for
the Guidelines’ existence.103
[122] That does not mean that the Guidelines require inflation
adjustment by way of some nice mechanical exercise upon their every application.
But the $100,000 benchmark under step one
and the appropriate non-pecuniary loss
figure under step two should be interpreted as permitting such adjustment where
that is necessary
to achieve the purpose of the Guidelines in a particular case.
In short, the Guidelines can, and should, be interpreted as permitting
inflation
adjusting, if the interests of justice dictate.
[123] If that is so, then the advice provided by the Ministry to the Minister and then by the Minister to Cabinet was incomplete in a material sense. While it is technically correct to say that the Guidelines do not (expressly) provide for the non-pecuniary loss figures to be adjusted for inflation, the critical question was whether they permitted such an adjustment, if necessary. The omission to ask and answer that question was, in my view an error. And it was an error that meant that the issue of inflation adjusting Mr Pora’s compensation for non-pecuniary loss was viewed as a request for special treatment when, as Mr Hansen had made clear, it was
the opposite of that.
103 See, for example, Matadeen v Pointu [1998] UKPC 9; [1999] 1 AC 98 (PC) at 109, and Ririnui v Landcorp
Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [95].
[124] That the request was so regarded is evident from the contention that Mr Pora should not have his compensation inflation-adjusted because other claimants under the Guidelines had not. Although it seems that that reasoning did not form part of the Ministry’s original advice to the Minister on the issue, it was later adopted both in the Minister’s report to Cabinet and her subsequent summary of the Cabinet
decision.104
[125] Despite its superficial appeal, the difficulty with that proposition
is that it is simply not borne out by the historical
facts, which the advice did
not include or even touch on. Those facts are that:
(a) the only other cases, prior to Mr Pora’s, in which the 2000
Additional
Guidelines have been applied were those involving:
(i) Ms Akatere (et al), in 2003 (for seven months’
wrongful
imprisonment);105 and
(ii) F, in 2005 (for 29 days wrongful imprisonment);
(b) the compensation for loss of liberty paid in those cases was $8,219
in
F’s case and $60,000 for Akatere et al; and
(c) the compensation paid for other non-pecuniary losses was $100,000
for F and between $75,000 and $77,500 for the three Akatere
claimants.
[126] Necessarily, therefore, the potential impact of inflation on those awards, in terms of the $100,000 benchmarks under steps one and two (which had been set only a few years earlier) was relatively minimal. Moreover, there had been no prior payments under the Guidelines and so it could not be said that making no adjustment
for inflation resulted in payments that were inconsistent with earlier
ones.
104 See [72] and [74] above.
[127] The
circumstances of Mr Pora’s case were qualitatively and quantitatively
quite different. First, by the time he was
paid compensation, some 16 years
had passed since the setting of the $100,000 benchmarks. Self-evidently the
inflationary effect
is much greater over that period than over the five odd
years that had elapsed by the time the earlier claimants were paid. And
secondly, the sheer size of the non-pecuniary loss compensation paid to Mr Pora
($2.2 million, due to the length of time he spent
in prison and to his
“truly exceptional circumstances”) means that, in simple dollar
terms, the inflationary effect is
much greater than it would be on
(non-pecuniary loss) awards of less than $150,000 (made 10 years earlier) to the
other Guideline
claimants.
[128] In order to demonstrate the significance of this qualitative and
quantitative difference Mr McCoy referred me to a
comparative table
prepared by Nicola Southall as part of her 2016 Honours dissertation at the
University of Otago.106 It compares the non-pecuniary loss
compensation paid to all those who have been compensated for wrongful
imprisonment in New
Zealand since (and including) Arthur Allan Thomas.
It does so by adding the step one and step two payments together, dividing
that
sum by the number of years spent wrongly imprisoned and then adjusting each of
those figures to a 2016 dollar value.
[129] To take the most extreme contrast, Ms Southall’s methodology shows that converting the payment for non-pecuniary losses made to F equates to a rate of
$1,643,505 per year, which is nearly 15 times more than the equivalent
payment made to Mr Pora ($111,468 per annum). Overall, the
analysis suggests
that Mr Pora was the most poorly paid or all the claimants by some considerable
margin.
[130] That comparison is not without its interest. But the massive discrepancy between the payments made to F and Mr Pora cannot be seen as wholly (or even largely) attributable to the effects of inflation. Rather, it is a product of the fact that the step two payment is not pro-rated by reference to the length of time spent in prison. F (who was wrongly incarcerated for a month) received $100,000 for his
other non-pecuniary losses, in accordance with the step 2
base-line. But that
106 Nicola Southall “Looking Backwards and Forwards: A Critique of New Zealand’s System for Compensating the Wrongly Convicted” (LLB(Hons) Dissertation, University of Otago, 2016) at 38.
base-line operated to constrain the amount payable to Mr Pora under step two because, despite Mr Hansen’s view that his circumstances were “truly exceptional”, he was unable to depart completely from it. The step two award of $225,000 was clearly at the outer limits of what Mr Hansen considered was permitted, in light of the base-line. Notwithstanding that some of the matters the step two figure was intended to compensate were aggravated by the length of time wrongly spent in prison, the inability to pro-rate the $100,000 base-line amount meant that it bore no
relationship to the period of wrongful detention.107
[131] In my view, therefore, the more compelling point for Mr Pora here is
simply the one made earlier, namely that the timing and
size of his compensation
award means that impact of inflation is particularly acute, compared with the
effect on awards made to other
claimants.
[132] For that reason, I think Mr McCoy was right when he submitted that, although Mr Pora has, of all the claimants, spent (by far) the longest time wrongly incarcerated, he has, in real dollar terms, been the most poorly compensated for his years of lost liberty and other non-pecuniary losses.108 It is impossible to see the difference as minor.109 And similarly, it is difficult to see the logical basis for the Minister’s advice to Cabinet that the compensation offered to Mr Pora was “broadly
consistent” with other payments made under the Guidelines. [133] In summary, therefore, I consider that:
(a) the Guidelines permit inflation adjusting of compensation for
non-
pecuniary losses if the interests of justice
dictate;
107 Which, as I have noted earlier, appears to me to be a difficulty with the way in which the Ministry has (consistently) applied the Guidelines. But that was not a matter raised on Mr Pora’s behalf.
108 While in some jurisdictions the annual loss of liberty sum payable in such cases diminishes over time (on the basis that it is thought that the pain and suffering associated with wrongful
imprisonment is most acutely felt in the early years) that is not what the New Zealand
Guidelines contemplate or require.
109 To the extent it is relevant to compare Mr Pora’s case with the slightly later (2011) cases in which compensation was paid outside the Guidelines (at [52] above), the inconsistency of treatment is necessarily less marked but remains very significant.
(b) the interests of justice would ordinarily require those who are in
like positions to be consistently treated. Consistency
of treatment is,
indeed, one of the fundamental objects of the Guidelines;
(c) in the absence of any reasoned and notified decision to depart from
the Guidelines, consistency would normally suggest
that compensation for
non-pecuniary loss should be inflation adjusted in a case where not doing so
would result in the applicant
being treated substantially differently (in real
dollar terms) from other applicants;
(d) the evidence strongly suggests that, in real dollar terms, Mr Pora
has been treated substantially differently from (not
as well as) earlier
claimants;
(e) conversely, the evidence strongly suggests that inflation adjusting
the compensation paid to Mr Pora for his non-pecuniary
losses would not involve
treating Mr Pora substantially differently from (better than) earlier claimants
under the Guidelines.
[134] All these points were absent from the advice provided to Cabinet.
Indeed the advice given was either expressly or impliedly
to the opposite
effect. Cabinet was not therefore given the opportunity to consider or address
the real (and factually based) consistency
point or to focus on the question
posed by Mr Hansen, namely whether it wished, in real terms, to treat Mr
Pora consistently
with previous claimants under the Guidelines.
[135] Nor, in my view, were the other reasons given for declining to
inflation adjust relevant to a proper assessment of compensation
under the
Guidelines. In particular:
(a) how the payment made to Mr Pora “sits” internationally can have no bearing on an assessment under the Guidelines. Unless and until Cabinet changes the Guidelines (or gives a specific reason for departure from them), consistency demands that:
(i) it is the Guidelines that must be the relevant yardstick; and
(ii) a qualifying applicant for compensation for wrongful imprisonment has
a legitimate expectation that his compensation will
be determined in accordance
with them, rather than by reference to some inchoate international
standard;
(b) the statement that “Cabinet was comfortable that $100,000 per
year for the time of incarceration was still an appropriate
amount” also
does not engage with the fundamental consistency issue;
(c) nor was the analogy with statutory fees, charges and payments apt
or relevant. The issue was what the Guidelines themselves
required or
permitted. And as I have said, the Guidelines should be flexibly and
untechnically interpreted and applied, in
accordance with their purpose
and the interests of justice. That seems unlikely to be the relevant
interpretive approach in relation
to administrative statutory fees and
charges.
[136] As well, the suggestion that inflation adjusting Mr
Pora’s compensation would somehow limit the options for
making changes to
the Guidelines in future is irrelevant to the fundamental inconsistency point.
It does not seem to me to be right
as a matter of law. While Mr Pora did
have a legitimate expectation that the Guidelines would be applied to him,
there can
be no such expectation that a decision will not, at some future time,
be taken formally to amend or replace the Guidelines.
[137] And lastly, the statement that Mr Pora was to receive additional sums of compensation for his other non-pecuniary and pecuniary losses assessed “in real dollar values” by Mr Hansen “entirely at [his] discretion” was not correct. Most relevantly, the other ($225,000) non-pecuniary loss figure was neither assessed in real terms nor as a matter of discretion. As Mr Hansen’s recommendation that it, too, be inflation adjusted made clear, it was squarely based on the step two $100,000
base-line, in accordance with the Ministry’s advised methodology.
That base-line had been set in 2000.
Remedy
[138] For all the reasons I have given I agree with Mr McCoy that
“something in public law terms has gone wrong” here.
In short, the
Minister’s interpretation of the Guidelines was incomplete in a way that
constitutes an error of law. That
error caused, or was compounded by, further
errors in the Minister’s advice to Cabinet and in the reasons for the
Cabinet decision
itself.
[139] That said, however, I have considerable reservations about any grant
of relief in the terms sought by Mr McCoy. Notwithstanding
that it was couched
in declaratory terms, what he asks the Court to do is to quash the Cabinet
decision. Even were that open to me
(and I do not think it is) I would demur, as
a matter of comity and constitutional principle.
[140] In any event, my analysis above suggests that the real error here lay
not in the Cabinet decision itself but in the advice
that preceded it. Due to
that advice, Cabinet has yet to have the opportunity properly to
consider the critical issue,
namely whether it wishes to treat Mr Pora
consistently with those other claimants who have received compensation under the
Guidelines
at earlier points in time.
[141] The fundamental point is that, in my view, the Guidelines permit the
quantum of compensation payable to an applicant for his
or her non-pecuniary
losses (ie the benchmarks stipulated in steps one and two) to be adjusted for
inflation, where it is in the
interests of justice to do so. I make a
declaration accordingly.
[142] In light of that declaration, I also invite the Minister to consider whether, in the circumstances of Mr Pora’s case, the interests of justice require the benchmarks in the Guidelines to be inflation adjusted. I am unable to see any impediment to her taking the matter back to Cabinet should that be seen as the proper outcome.
[143] The application for judicial review succeeds accordingly. I can see no reasons why costs should not follow the event. Memoranda may be submitted if
they cannot be
agreed.
Rebecca Ellis J
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2017/2081.html