File photo.
Photo: 123RF

A prisoner who was mistakenly detained an extra 33 days has won $11,000 in compensation.

Koro Putua was sentenced to four years and six months in jail on 16 charges including burglary, unlawfully carrying firearms, receiving, theft, and possession of cannabis.

But when preparing the warrant for Putua’s commitment in September 2016, the District Court deputy registrar mistakenly recorded that a three-month sentence on one of the charges was cumulative, rather than concurrent, on the sentence for another charge.

It meant three months was added to Putua’s overall sentence when it should not have been and the mistake was signed off by the sentencing judge who did not notice it, according to a High Court decision of Justice Rebecca Ellis.

Putua said he told staff at Northland Regional Correctional Facility of the mistake on his arrival there and maintained his release date should be 11 November, 2020, but he was not released then.

Eventually, on December 14 that year, a registrar prepared a corrected warrant which the sentencing judge then signed.

Putua was released that day, after serving 33 days in prison more than he should have.

In March this year Putua took his claim for $11,000 compensation, known as Baigent damages, to the High Court.

The Crown accepted Putua was unlawfully and arbitrarily detained for those 33 days in breach of the New Zealand Bill of Rights Act 1990.

However, it argued the Court had no jurisdiction, and no remedy was available, because the error was a judicial one.

The Crown said that because the registrar’s decision was “superseded” by the judge signing the warrant of commitment, there was no right to compensation.

In her decision on the case released earlier this month, Justice Ellis said as the law stood, it was correct the Court had no jurisdiction to hear a claim for compensation arising from a judicial act, such as the signing of the warrant by the sentencing judge.

However, she said the position was less clear-cut in relation to the mistake by the deputy registrar.

Justice Ellis considered whether the deputy registrar was performing essentially a judicial function, which attracted judicial immunity or if not, whether the mistake was superseded by the judge.

She said the act of the deputy registrar in preparing the warrant of commitment could not be seen as a judicial one.

“It was not a task requiring either discretion or judgment. Preparation of the warrant is mandatory and its content, pre-determined.

“The registrar is simply required to record an order made by an [identified] judge in court, the date, and the powers under which it was made.”

She said there was no underlying judicial error and there was no doubt it was the deputy registrar’s mistake.

To justify judicial immunity was to protect the integrity of the judicial process, Justice Ellis wrote.

“It does this by avoiding the risk of collateral attacks on, and relitigation of, judges’ decisions, and of judges being subject, in their decision-making processes, to the weight of improper pressure as a result of potential legal liability for their judicial acts.”

It was difficult to see how such matters applied to administrative acts by registrars, however closely they might be linked to a judicial process, Justice Ellis said.

She said a registrar had no choice but to prepare a warrant, they were not public figures in the way that judges were and it was hard to see how the general public would have any real interest in naming or shaming a public servant who has made little more than a clerical error.

“For these reasons, I conclude that the deputy registrar’s mistake here was an administrative act that is not protected by judicial immunity.”

She also did not regard the judge’s signature as a superseding cause that effectively immunised the Crown from liability for the deputy registrar’s mistake.

Ellis said the registrar’s mistake in preparing the warrant was a “substantial and operating cause” of his unlawful detention, and she found Putua’s claim for breach of section 22 of the Bill of Rights not barred by judicial immunity.

She assessed his right to damages under the Prisoners’ and Victims’ Claims Act 2005, and found he was entitled to $11,000 plus interest.

The money is first paid to the Secretary for Justice where a victim of the offending has a right to make a claim against it.

– This story was first published on the NZ Herald website.