Twisted Prosecution Tests Court of Appeal
The Court of Appeal judgment overturned High Court Justice Priestley’s strike out (on grounds it was hopeless) of Clayton’s misfeasance in public office cause of action against Christchurch Crown Prosecutor Philippa Currie (pictured). At the same time, the CoA judgment dismissed Currie’s cross appeal for strike out of Clayton’s remaining public law compensation claim against the NZ Attorney General.
Clayton v Currie seeks financial damages against Ms Currie and the Crown for concealing exculpatory evidence in the 2007 conviction of Clayton and his partner Linda Westbury on 34 charges of receiving stolen goods. The plaintiffs seek just over $2 million, including $100,000 in personal assets the Police have never returned.
Mr Clayton served 14 months in prison in 2007 before the Court of Appeal determined he and two co-defendants were victims of prosecutorial misconduct by Currie. Specifically, Currie withheld evidence that the Crown’s chief witness was given sentencing concessions for unrelated criminal offending in exchange for his testimony. Currie not only failed to disclose this inducement, she provided an assurance to the defendants her written statement no such inducement was given was a complete summary. In fact, Judge Radford had deferred sentencing of the witness until after Clayton’s trial, recording the agreed intent “of course significant discount (on sentence) for the matter which involves the Christchurch trial.”
The witness, for his part, stated repeatedly under cross-examination his only incentive to testify was one of conscience. The court granted the repeat offender name suppression to protect his reputation.
The Court of Appeal was delicate in its ruling, careful not to reveal the extent of Currie’s deception which included court transcripts proving Currie refused to divulge sentencing notes on her star witness and failing to respond to trial Judge Crosbie’s declaration from the bench that the prosecution owed the defendant such notes if they possessed them. The judgment concluded only that Priestley J was wrong to label the misfeasance case as hopeless, suggesting that determination must be left to the trial judge.
The evidence leaves little doubt Ms Currie repeatedly deceived the court and defendants in criminal prosecutions against at least five defendants. Peter Machirus, Nadia Peletio and Gary Morrell are other victims whose claim against Currie has been stalled in the High Court awaiting this Court of Appeal judgment. Machirus has claimed the tort of deceit and malicious prosecution against Ms Currie. Earlier, Machirus had summons issued against Currie in a private prosecution but the prosecution was thwarted when the Solicitor General used his executive power to stay prosecution. In 2007, Machirus was labelled, incorrectly as it now turns out, a burglary-ring ‘kingpin’ by Police in their three year, multi-million dollar Operation Rhino.
Deregistered barrister Devina Murray is exploring obtaining propensity evidence against Currie since her 2013 conviction for smuggling contraband to a high security prisoner.
Ironically, it is this broad level of offending by Ms Currie which now provides the greatest pressure on judges to cover it up. Christchurch Crown Solicitor Brent Stanaway in the High Court and John Pike QC at the Court of Appeal both claimed from the bar that sentencing notes on the witness were available directly to the defendants and on this basis alone the plaintiffs’ claim against Currie could not succeed. When Clayton’s lawyer refused to call out Mr Pike’s false claim the defendants had never asked Ms Currie for a copy, counsel and client had a stern discussion, ending with them parting ways.
A week before the Court of Appeal judgment, the Canterbury Law Society shocked observers in ordering Currie pay a $500 fine and $2,000 costs after its standards committee determined she had deceived the court. The offence carried the potential of striking Currie off as a lawyer.
Currie has refused to pay Clayton and Westbury the $8,000 costs awarded by the Court of Appeal, saying she has yet to decide on any appeal to the Supreme Court.