Ow, ow, ow, ow, ow!

There is a lot to like in Fitzgerald v Attorney-General [2022] NZHC 2465, which is otherwise a sort of Transformers Movie of judgments: lots of explosions, several parts that I couldn’t follow, and liable to result in more sequels than anyone wants. 

I’m pleased that Mr Fitzgerald got compensation. I like the strong assertion of the Bill of Rights Act over prosecutors’ conduct. Either Mr Fitzgerald’s counsel or Ellis J or both did a really good job of laying out a path to make the question of the charging decision a question of law with a right and wrong answer, rather than a question of discretion. 

But (through no fault of Ellis J) the judgment doesn’t stand on the shoulders of giants. Instead those giants’ shoulders cast looming shadows which mean the judgment has to twist in weird directions all in search of some daylight. Daylight in this tortured metaphor being the right outcome (compensation) but not the right answer (why that compensation is being paid).

There are two giants. The first is the three strikes regime (and I use that word advisedly) itself. They say hard cases make bad law but bad law also makes for hard cases. When Parliament takes away judicial discretion for sentencing the judiciary will first maximise whatever small levers they’ve been left with. That saw courts finding manifest injustice on every third strike sentencing except one, and excluding one or two others where a sentence of preventive detention was imposed instead. Then the courts will create levers of their own. That saw courts finding ways to reduce sentence length precisely in response to the effects of three strikes (which is extraordinary): see Barnes v R [2018] NZCA 42, [2018] 3 NZLR 49). Then the courts will go further. In Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 the Supreme Court found a way to say that in some cases a court could simply not apply an act of parliament. That is more than extraordinary. And Parliament and the Crown are now stuck with that ruling on the books. Maybe it won’t be used again – maybe it’s just a reaction to three strikes. But what a colossal strategic error by Parliament to push things so far that they get in writing a judgment that says maybe we don’t have to listen to you. Lord Cooke talked about deep lying common law rights. In the 2020s, the message from the courts is fuck around and find out. 

But even with the New Zealand judiciary operating at times as a sort of partisan resistance, there was only so much that could be done. Courts continued to apply three strikes until a change of government pulled the plug. There is a human cost to three strikes. That cost is borne by the persons detained in breach of their rights, and by their victims who have their individual cases turned into causes célèbre where offenders are the main characters. Now the courts are conducting an accounting for the rights breaches along the way. Rightly, there is a strong moral imperative to do something. 

The second giant casting a long shadow is Chapman v Attorney-General [2010] NZSC 110, [2012] 1 NZLR 462. No damages for breaches of the Bill of Rights Act for judicial acts. Judicial acts like imposing a sentence that is so long that it breaches ss 9 and 22 of Bill of Rights Act. Maybe you agree with the policy reasons behind the holding in Chapman, maybe you don’t (and the UN does not). But it has distorted rights litigation in this way: the Crown likes Chapman when it lets it say “well it wasn’t really the executive that breached your rights, it was the judiciary, and Chapman says there’s no cause of action, so that’s the answer”. And, in turn, that requires plaintiffs to go wide and try to explain why the breach was actually the result of an act of the executive. Sometimes that works (Thompson v Attorney-General [2016] NZCA 215, [2016] 3 NZLR 206) and sometimes it doesn’t (Putua v Attorney-General [2022] NZHC 2277). Both in Putua and here in Fitzgerald Ellis J has been valiantly trying to get out from under Chapman on the facts. And anyone doing any thinking about this Fitzgerald judgment should read Putua – it’s a good companion piece.

Mr Fitzgerald’s damages claim emerges thus. His rights were breached. So says the Supreme Court. In fact, the Supreme Court says the judge ought not to have sentenced him to his seven year sentence. Something needs to be done, but as long as Chapman is the law no one’s allowed to say it’s the court’s fault for sentencing him to a long sentence. 

In her Honour’s judgment, Ellis J sets out how the charging decision was unlawful. I quite like the reasoning here. And I think we have an underdeveloped jurisprudence of how administrative law principles inform criminal law in general, so really like this judgment as a step forward. I hope there will be more interesting case law that comes out of the increased visibility of the justiciability of charging decisions.

Justice Ellis sets out why the prosecutor was under a legal duty, and how it was breached. The duty is articulated as an obligation “to exercise their prosecutorial discretion in a way that avoided the risk of Mr Fitzgerald becoming subject to a disproportionately severe punishment on sentencing” (at [169(b)]). And that duty was breached by laying and maintaining the charge (and possibly (I read the judgment as saying) advocating for the sentence).

But if that’s how the duty is articulated, and that is how the breach is framed, then how does vindication of the corresponding right translate to damages for Mr Fitzgerald’s punishment or detention? By exposing Mr Fitzgerald to the risk of detention, the Crown prosecutor did not create his detention. By exposing Mr Fitzgerald to the risk that he would become subject to a disproportionately severe punishment, the Crown did not in fact impose on him such a punishment. The duty that Ellis J articulates ends with the words “on sentencing”, but then the judgment suggests sentencing is some mechanical process with a mechanical result. 

A judge of the High Court decided what sentence to impose on Mr Fitzgerald. The Supreme Court has set out that the judge could in fact depart from the Act and did not need to impose the sentence. I read this latest judgment as placing weight on the fact that the prosecutor instituted the process – that they set in process a motion that culminated in sentencing. And it’s for that reason that the Crown is responsible for the detention that resulted. 

That seems to minimise the agency of High Court judges carrying out sentencing. When passing sentence, judges do not simply do what the Crown tells them. Mantra-like we hear that sentencing is quintessentially a judicial function. But if it’s a judicial function then Chapman will swing in to remove the ability to award damages. To get the result, it has to be the prosecutor’s fault and so, necessarily, the sentencing judge’s decision about how long the sentence will be and the sentencing judge signing the warrant of commitment that authorises detention fade into the background like Homer Simpson into a hedge.

Justice Ellis was willing to accept that there would be a twin responsibility: both the prosecutor and the sentencing judge both had duties to avoid breaching rights. I agree. But only one of those two has the power to impose detention. And, even if the responsibility had to be shared, why is the entire damages award borne by the Crown prosecutor? The answer to that might lie in the fact that Baigent damages aim to vindicate the right, but I think that simply emphasises the question of what right did the prosecutor breach – not the right to be free from detention!

None of this is to step away from a finding that the prosecutor’s decision may be unlawful in its own terms. But the answer to that is a declaration in standard JR but probably not Bill of Rights Act terms. And remember the Supreme Court did not question the correctness of Mr Fitzgerald’s conviction, so there is no ability for the High Court here to collaterally undermine the conviction by going all in on the charging decision. The end result of this judgment is the prosecutor must pay for deciding to lay a charge that led to a safe conviction. 

And that really leads to the hint of a strange double standard in all of this. I like Ellis J’s judgment as a call to arms to the Crown from the judiciary: “just as the judiciary did its part in trying to mitigate the rights-breaching aspects of three strikes, prosecutors ought to have been doing the same thing. We will follow the consequences of the Supreme Court’s decision in Fitzgerald wherever they lead”. But that ‘we all have to play our part’ approach sits unhappily with Chapman. We all have to play our part but it can never be the judiciary’s fault. That is a part-time commitment to the Bill of Rights Act. Chapman prevents the right answer: Mr Fitzgerald’s right to be free from arbitrary detention was breached by the long third strike sentence. That sentence was imposed by a court, but that won’t stop this court from awarding Bill of Rights Act damages because what matters is vindicating rights where they are breached. And also, bloody hell, prosecutors should have been a lot more awake about this too. 

I don’t like the reasoning in Fitzgerald because it reaches too far to dodge Chapman. I like the outcome in that compensation is awarded for a rights breach. But the right that was vindicated for the damage in this case was not breached by the acts complained about. With Chapman as the law, there was no viable path to awarding Bill of Rights Act compensation. The issue is not Fitzgerald, it is not Ellis J (who is bound by Chapman and whose task was to deal with pleadings framed in light of Chapman), it is not how Mr Fitzgerald or the Crown ran their cases, it is not even really three strikes though that set a lot of this in train. It is about how Chapman has distorted how rights litigation is pleaded, argued, and decided. 

Anyway, I didn’t mind Transformers. But something’s gotta give before we end up with a Bumblebee.