Attorney-General v Parore - [2025] NZCA 328

New Zealand Bill of Rights Act 1990 — fair trial — public law damages — goods and services tax

Appeal allowed.  High Court judgment set aside.  Declaration that the Commissioner of Inland Revenue breached Mr Parore’s right to silence, thereby breaching his right to a fair trial under s 25(a) of the New Zealand Bill of Rights Act 1990.  Respondent to pay costs for a standard appeal on a band A basis together with usual disbursements.

In 2018, Mr Parore was in dispute with the Commissioner of Inland Revenue (the Commissioner) about filing tax returns and paying goods and services tax.  The dispute progressed through several stages of the civil tax disputes procedure under the Tax Administration Act 1994.  In 2019, the Commissioner then initiated tax evasion criminal proceedings against Mr Parore using information obtained from him in the civil tax disputes procedure. 

In 2021, the District Court stayed the proceedings on the basis Mr Parore’s right to silence was breached because he was required to provide information in the civil tax disputes procedure.  That decision was upheld by the High Court.  The Commissioner was out of time to recommence the civil tax disputes procedure and an application for an extension of time was declined.   

In 2023, the High Court declared that Mr Parore’s right to silence had been breached by the Commissioner and awarded him public law damages of $75,989.86.  The Attorney-General appeals on the basis that the stay of the criminal proceedings sufficiently vindicated Mr Parore’s rights, such that he is not entitled to a declaration or public law damages.  Mr Parore opposes the appeal.

Issue one: what right was breached?
Held: the right to silence encompasses a number of general and specific immunities which lie across ss 23(4), and 25(a) and (d), of the New Zealand Bill of Rights Act 1990 (Bill of Rights).  The right at issue here is the right to a fair trial under s 25(a) of the Bill of Rights is the relevant right. 

Issue two: are damages available for breach of the right to a fair trial?
Held: yes.  Brown v Attorney-General [2005] NZLR 405 (CA) suggested that damages should not be available for breaches of fair trial rights.  However, Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 referred to relief in the context of criminal trials and case law contemplating public law damages for breaches of fair trial rights.  New Zealand cases since Taunoa have not ruled out the availability of damages for breaches of fair trial rights.  The Privy Council, House of Lords and Supreme Court of Canada have held that a cause of action for damages can exist in respect of a breach of fair trial rights.  The correct approach is to carefully examine what package of remedies is effective to vindicate the relevant right, appropriately and proportionately in the circumstances, taking into account the seriousness and nature of the particular breach, the particular right and the conduct of the particular right-holder.  This is consistent with Attorney-General v Morrison [2025] NZCA 240. 

Issue three: is a declaration appropriate?
Held: yes.  The Court’s purpose in granting the stay was to uphold the integrity of the criminal justice system, not to discipline the Commissioner or vindicate Mr Parore’s rights.  There has been no apology for the breach.  The declaration was appropriate and proportionate, and reinstates the rule of law by marking the breach.  However, the High Court erred in referring to s 25(d) of the Bill of Rights Act in its declaration.  It is set aside and a new declaration is made that the Commissioner breached Mr Parore’s right to silence, thereby breaching his right to a fair trial under s 25(a) of the Bill of Rights.

Issue four: are public law damages appropriate?
Held: no.  The seriousness of the breach is at the lower end of the scale.  The Commissioner has changed the guidance about how to proceed in these circumstances so it is unlikely this situation will be repeated.  In Morrison this Court observed that public law damages are likely to be appropriate in only a limited number of cases involving very serious breaches of fair trial rights.  Mr Parore’s right is fully vindicated by the declaration.