When Power Goes Wrong · Liability & Remedy Ledger · Part 05

What remedies exist for unlawful Police search, detention or arrest?

Police wrongdoing can engage ordinary torts and the New Zealand Bill of Rights Act. Baigent established public-law compensation as a possible remedy for rights breaches where other remedies are insufficient.

An unlawful Police act can generate more than one legal analysis. A search may raise trespass and NZBORA s 21; detention may raise false imprisonment and ss 22–23; evidence obtained unlawfully may also trigger criminal-procedure remedies.

Simpson v Attorney-General (Baigent's Case) established that monetary compensation can be available directly in public law for breach of NZBORA. That remedy is conceptually distinct from ordinary vicarious tort liability under the Crown Proceedings Act.

Remedy must fit the proceeding.Excluding evidence may protect a criminal defendant but does not necessarily compensate the person whose home was unlawfully searched. A civil declaration may mark the breach; public-law damages may be needed only where other remedies do not adequately vindicate the right.

Possible private-law claimsFalse imprisonment, trespass, negligence or other tort depending on facts.

Public-law claimNZBORA breach against the state.

Criminal-process remediesEvidence exclusion, stay or other orders depending on the criminal proceeding.

Key principleDo not double-count compensation; courts look at the overall package needed to vindicate the right.

The first remedy question after Police wrongdoing is therefore: what harm remains unremedied after the criminal, tort and public-law processes are considered together?

Rights statuteNew Zealand Bill of Rights Act 1990.

Leading authorityNational Library record — Simpson v Attorney-General (Baigent's Case).

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