Attorney-General v Putua - [2024] NZCA 67
Date of Judgment
21 March 2024
Decision
Attorney-General v Putua (PDF 336 KB)
Summary
Mr Putua was arbitrarily detained for 33 days in breach of s 22 of the Bill of Rights Act. In the High Court he sought
and was awarded compensation under the Bill of Rights Act. This case was an appeal, by the Attorney-General, against
that decision. The appeal was allowed.
Mr Putua was sentenced to four and a half years imprisonment on 16 charges. On the lead offence he was sentenced to
three years and four months’ imprisonment, on another charge he was given a cumulative sentence of one year and two
months’ imprisonment and on the rest of the charges concurrent sentences were imposed. When preparing Mr Putua’s
committal warrant, a deputy registrar incorrectly recorded in the draft warrant that a three-month sentence for one of the
charges was cumulative rather than concurrent. The sentencing Judge did not notice this error and signed the warrant.
When the authorities realised the mistake and issued a replacement warrant Mr Putua had been imprisoned for 33 days
in excess of the sentence that was imposed.
In the High Court, Mr Putua sought to hold the Crown liable for the actions of the Deputy Registrar in preparing the
warrant. The Judge’s actions were not subject to the claim, as they were covered by judicial immunity. The case was
heard by Ellis J. She found Mr Putua had been unlawfully, and therefore arbitrarily, detained as a result of the Deputy
Registrar’s actions, issued a declaration to this effect and awarded him damages of $11,000 and interest.
As it did in the High Court, in this Court the Crown accepted that Mr Putua was arbitrarily detained. The issues on
appeal were whether the actions of the Deputy Registrar in preparing the warrant were covered by the same immunity
as the actions of the District Court Judge in signing it? And, if the Deputy Registrar’s actions were not subject to
immunity, whether the Judge’s signing of the warrant constituted an intervening cause breaking the causal nexus
between the drafting of the warrant and the arbitrary detention?
Were the actions of the Deputy Registrar subject to judicial immunity? Held: Yes.
The Court first provided an explanation of judicial immunity, discussing the immunity under common law and s 6(5) of
the Crown Proceedings Act, a Law Commission report written in response to Baigent’s case, Attorney-General v
Chapman, and Thompson v Attorney-General.
The High Court Judge had considered that because the preparation of the warrant was a mandatory task under s 91 of
the Sentencing Act, and its contents predetermined, the drafting of it did not involve any exercise of discretion and, in
her view, citing Royal Aquarium and Summer and Winter Garden Society Ltd, that meant the Deputy Registrar’s actions
were not a judicial act. Because the Judge also considered there were no policy reasons to justify judicial immunity
applying to administrative acts, such as the preparing of the warrant, she held the Deputy Registrar’s actions were not
subject to judicial immunity and thus the Crown was liable for the Deputy Registrar’s error.
The Court of Appeal considered it would be anomalous there being two errors relating to the warrant, that one of them
was protected by immunity and the other not. A further anomaly was that of the two actors, it was the Judge who was
arguably more culpable given that he was the person ultimately responsible for the warrant and the Deputy Registrar
was his sub-ordinate.
The Court also considered that the adoption in the High Court of a test which delineates the concept of a judicial act by
reference to the existence of a discretion was problematic. That test would mean the Judge’s signing of the warrant was
also not a judicial act, despite it undoubtably being one. The case law also did not support this test.
Instead, the Court considered the correct test involved an examination of the role of registrars and deputy registrars in
the context of judicial business and the nature of the particular task, not how it was executed. The task at issue was one
which gave effect to a judicial decision and assisted the Judge in the exercise of his statutory powers. The case law
supported the view that judicial acts and administrative acts of non-judges which give effect to judicial decisions or
undertaken in connection with the execution of the judicial process should both be covered by judicial immunity. If the
converse was the case there would be a risk of collateral attacks on judicial decisions and it would be problematic for judicial independence, problems arising for example from the conflict of interest that would result if the Crown was
liable for the actions of one of its employees in undertaking a task at the direction of a judge.
Regarding the possibility of an alternative remedy, the Court noted that although the appeal process would not
necessarily have remedied Mr Putua’s issue (he in fact engaged counsel for a sentence appeal), and that Mr Putua was
not eligible for a compensatory payment under the Cabinet Compensation Guidelines for Wrongful Conviction and
Detention, he could have made an application under the Habeas Corpus Act. The possibility of this non-compensatory
remedy was not a panacea to art 9(5) of the ICCPR. However, even if the appeal was dismissed and the compensation
award upheld, the denial of relief for the error of the Judge would still have been in breach of international obligations.
The Court held that the Deputy Registrar’s actions were subject to judicial immunity and thus the Crown was not liable
for the error. This meant the appeal had to be allowed. The Court however still considered the second issue, despite it
not being dispositive.
Did the Judge’s signing of the warrant constitute an intervening cause? Held: No.
The High Court Judge rejected the contention that the sentencing Judge’s signature was an intervening act, primarily on
the grounds that as a matter of law it was not necessary for a warrant to be signed by a judge in order for it to be valid.
The Court of Appeal considered that whether an unsigned warrant is valid is debatable but did not express a concluded
view on the matter as it found for different reasons that the Judge’s signature was not an intervening cause.
The Court emphasised the importance of the Judge’s signature on the committal warrant. It noted a judge’s signature is
a statutory requirement, is a safeguard and endorsement as to the correctness of the warrant, and although it is not the
underlying basis for detention a warrant is nevertheless a formal document of considerable consequence. It considered
had the Judge’s signature been absent from the warrant the prison authorities would have likely conducted further
inquiries and found the error. The Judge’s signature was thus not void of causative effect.
However, applying orthodox principles of causation, the Court considered that whilst the Judge’s signature was a cause
of the unlawful detention so too was the error of the Deputy Registrar. They were both contributing causes. Although
the Court considered that in some senses the Judge bore the primary responsibility, as a matter of impression it did not
consider that his failure to check constituted an intervening cause completely breaking the chain of causation. The
Judge’s actions were directly precipitated by and within the scope of the risk created by the Deputy Registrar’s error,
and so that error was an operative cause of Mr Putua’s arbitrary detention.
The appeal was allowed.
Costs were not awarded against Mr Putua as he was legally aided and there were no exceptional circumstances which
meant a costs order should be made.
and was awarded compensation under the Bill of Rights Act. This case was an appeal, by the Attorney-General, against
that decision. The appeal was allowed.
Mr Putua was sentenced to four and a half years imprisonment on 16 charges. On the lead offence he was sentenced to
three years and four months’ imprisonment, on another charge he was given a cumulative sentence of one year and two
months’ imprisonment and on the rest of the charges concurrent sentences were imposed. When preparing Mr Putua’s
committal warrant, a deputy registrar incorrectly recorded in the draft warrant that a three-month sentence for one of the
charges was cumulative rather than concurrent. The sentencing Judge did not notice this error and signed the warrant.
When the authorities realised the mistake and issued a replacement warrant Mr Putua had been imprisoned for 33 days
in excess of the sentence that was imposed.
In the High Court, Mr Putua sought to hold the Crown liable for the actions of the Deputy Registrar in preparing the
warrant. The Judge’s actions were not subject to the claim, as they were covered by judicial immunity. The case was
heard by Ellis J. She found Mr Putua had been unlawfully, and therefore arbitrarily, detained as a result of the Deputy
Registrar’s actions, issued a declaration to this effect and awarded him damages of $11,000 and interest.
As it did in the High Court, in this Court the Crown accepted that Mr Putua was arbitrarily detained. The issues on
appeal were whether the actions of the Deputy Registrar in preparing the warrant were covered by the same immunity
as the actions of the District Court Judge in signing it? And, if the Deputy Registrar’s actions were not subject to
immunity, whether the Judge’s signing of the warrant constituted an intervening cause breaking the causal nexus
between the drafting of the warrant and the arbitrary detention?
Were the actions of the Deputy Registrar subject to judicial immunity? Held: Yes.
The Court first provided an explanation of judicial immunity, discussing the immunity under common law and s 6(5) of
the Crown Proceedings Act, a Law Commission report written in response to Baigent’s case, Attorney-General v
Chapman, and Thompson v Attorney-General.
The High Court Judge had considered that because the preparation of the warrant was a mandatory task under s 91 of
the Sentencing Act, and its contents predetermined, the drafting of it did not involve any exercise of discretion and, in
her view, citing Royal Aquarium and Summer and Winter Garden Society Ltd, that meant the Deputy Registrar’s actions
were not a judicial act. Because the Judge also considered there were no policy reasons to justify judicial immunity
applying to administrative acts, such as the preparing of the warrant, she held the Deputy Registrar’s actions were not
subject to judicial immunity and thus the Crown was liable for the Deputy Registrar’s error.
The Court of Appeal considered it would be anomalous there being two errors relating to the warrant, that one of them
was protected by immunity and the other not. A further anomaly was that of the two actors, it was the Judge who was
arguably more culpable given that he was the person ultimately responsible for the warrant and the Deputy Registrar
was his sub-ordinate.
The Court also considered that the adoption in the High Court of a test which delineates the concept of a judicial act by
reference to the existence of a discretion was problematic. That test would mean the Judge’s signing of the warrant was
also not a judicial act, despite it undoubtably being one. The case law also did not support this test.
Instead, the Court considered the correct test involved an examination of the role of registrars and deputy registrars in
the context of judicial business and the nature of the particular task, not how it was executed. The task at issue was one
which gave effect to a judicial decision and assisted the Judge in the exercise of his statutory powers. The case law
supported the view that judicial acts and administrative acts of non-judges which give effect to judicial decisions or
undertaken in connection with the execution of the judicial process should both be covered by judicial immunity. If the
converse was the case there would be a risk of collateral attacks on judicial decisions and it would be problematic for judicial independence, problems arising for example from the conflict of interest that would result if the Crown was
liable for the actions of one of its employees in undertaking a task at the direction of a judge.
Regarding the possibility of an alternative remedy, the Court noted that although the appeal process would not
necessarily have remedied Mr Putua’s issue (he in fact engaged counsel for a sentence appeal), and that Mr Putua was
not eligible for a compensatory payment under the Cabinet Compensation Guidelines for Wrongful Conviction and
Detention, he could have made an application under the Habeas Corpus Act. The possibility of this non-compensatory
remedy was not a panacea to art 9(5) of the ICCPR. However, even if the appeal was dismissed and the compensation
award upheld, the denial of relief for the error of the Judge would still have been in breach of international obligations.
The Court held that the Deputy Registrar’s actions were subject to judicial immunity and thus the Crown was not liable
for the error. This meant the appeal had to be allowed. The Court however still considered the second issue, despite it
not being dispositive.
Did the Judge’s signing of the warrant constitute an intervening cause? Held: No.
The High Court Judge rejected the contention that the sentencing Judge’s signature was an intervening act, primarily on
the grounds that as a matter of law it was not necessary for a warrant to be signed by a judge in order for it to be valid.
The Court of Appeal considered that whether an unsigned warrant is valid is debatable but did not express a concluded
view on the matter as it found for different reasons that the Judge’s signature was not an intervening cause.
The Court emphasised the importance of the Judge’s signature on the committal warrant. It noted a judge’s signature is
a statutory requirement, is a safeguard and endorsement as to the correctness of the warrant, and although it is not the
underlying basis for detention a warrant is nevertheless a formal document of considerable consequence. It considered
had the Judge’s signature been absent from the warrant the prison authorities would have likely conducted further
inquiries and found the error. The Judge’s signature was thus not void of causative effect.
However, applying orthodox principles of causation, the Court considered that whilst the Judge’s signature was a cause
of the unlawful detention so too was the error of the Deputy Registrar. They were both contributing causes. Although
the Court considered that in some senses the Judge bore the primary responsibility, as a matter of impression it did not
consider that his failure to check constituted an intervening cause completely breaking the chain of causation. The
Judge’s actions were directly precipitated by and within the scope of the risk created by the Deputy Registrar’s error,
and so that error was an operative cause of Mr Putua’s arbitrary detention.
The appeal was allowed.
Costs were not awarded against Mr Putua as he was legally aided and there were no exceptional circumstances which
meant a costs order should be made.