Operation Rhino damages claims rejected

Damages claims by five people put on trial after the Operation Rhino police investigation have been rejected in a judge’s decision in the High Court at Christchurch.

Justice Peter Churchman issued his decision today, after the eight day civil hearing four weeks ago where claims had been made against the Crown totalling about $1,275,000.

The claimants argued that the actions of the Crown prosecutor, Pip Currie, in their Operation Rhino trials in 2006 and 2007 had breached their rights under the Bill of Rights.

The group – Vincent James Clayton, Linda Westbury, Peter Lloyd Machirus, Gary Morell, and Nadia Pelenato – alleged the prosecutor had misled the court by “suppressing” information about incentives given to a witness to give prosecution evidence at the trial. Clayton, Machirus, and Westbury were convicted.

The convictions were quashed by the Court of Appeal and a new trial was ordered, but the Crown then decided not to proceed with the retrial.

Clayton told Justice Churchman he believed the Crown had acted with malice as part of a “win-at-all-costs” mindset.

The Crown accepted at the hearing that there had been “an innocent blunder”, and Mrs Currie said in evidence that she wished she had disclosed to the defence the complete transcript of a sentencing indication given to the Operation Rhino witness in the Wellington District Court.

It was only later she realised the judge was referring to the witness’ assistance in giving evidence at Operation Rhino.

The claimants said they believed the witness’ evidence would have been ruled inadmissible if the information about the incentives had been disclosed.

Justice Churchman said in his decision: “I do not accept that it has been established that Ms Currie intentionally withheld anything. She genuinely, but mistakenly, believed she had provided all the relevant information.”

He said the plaintiffs fell well short of being able to establish that they probably would have been acquitted had the full sentencing indication been disclosed.

“The plaintiffs’ claims … fail because they have not established the presence of malice or fraud on the part of the first defendant which is a prerequisite to success with such claims.”

The plaintiffs’ claims for damages under the Bill of Rights failed because the miscarriage of justice which occurred here did not amount to a breach of their right to a fair trial. He said that “even if damages were available for breach of a fair trial, this case is not exceptional and involved no egregious behaviour that would justify an award of damages”.

Justice Churchman said that because of the “impecunious nature” of all the claimants – they represented themselves at the hearing – there was little point in awarding costs. However, he has given the Crown 10 days to make a costs claim if it wishes.

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