Allison v The Queen - [2021] NZCA 140

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA611/2020
[2021] NZCA 140

BETWEEN	EOIN MURRAY ALLISON Applicant
AND	THE QUEEN Respondent

Hearing:	18 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	W J Wright and W van Harselaar for Applicant R K Thomson for Respondent
Judgment:	29 April 2021 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

Mr Allison seeks leave to bring a second appeal against a decision of Osborne J in which the Judge reduced a District Court award of costs under the Costs in Criminal Cases Act 1967 (CCCA) from $47,265 plus travel costs of $1,874.40 to $339 plus the same travel costs.[1] In doing so, the Judge accepted the Crown’s argument that the District Court’s award did not appropriately reflect the restriction in s 13(3) of the CCCA, which limits recovery of costs to scale[2] other than in cases of “special difficulty, complexity or importance”.

Background

[1]R v Allison [2010] NZHC 2583 [High Court judgment].

[2]As provided for in the Costs in Criminal Cases Regulations 1987.

Mr Allison observed his neighbour’s eight-month-old dog Flex, chasing and (he thought) attacking his neighbour’s sheep. He shot Flex in the hindquarters, severely, but not fatally, wounding him. Flex returned to his owner’s home. The owner’s grandfather (now deceased) tied him to a fence. Mr Allison went to the neighbour’s home carrying his gun. He engaged with the grandfather briefly. The grandfather then walked towards his car, which he intended to drive to his daughter’s house to telephone his son.[3] As he did so, he heard two further gunshots. These were to Flex’s head.
[3]The grandfather could not locate the home phone and did not own a cell phone.
Although in a written statement prepared by him a day after the shooting Mr Allison had described the fatal shots as having been to “put it out of its misery”, in his police interview seven days later he confirmed that the sole reason for killing the dog was to stop it chasing sheep:
Q.So it wasn’t to put the dog out of its misery or anything like that it was to stop the dog chasing sheep again?
A.Yes.
The charges for which Mr Allison faced trial were:
(a)one charge of ill-treatment of an animal (relating to the shot to Flex’s hindquarters);[4] and
(b)two charges of unlawful possession of a firearm.[5]
[4]Animal Welfare Act 1999, ss 29(a), 30 and 37.
[5]Arms Act 1983, s 45(1).
The first unlawful possession charge related to the initial shot and the second to the fatal shots fired after Flex had returned home.
Mr Allison defended the ill-treatment of an animal charge and the first unlawful possession charges on the basis of s 57(1)(b) of the Dog Control Act 1996 which authorises a person to destroy a dog if the person witnesses it “attacking any other person, or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allison v The Queen

Details

AGLC: Allison v The Queen [2021] NZCA 140
Case: [2021] NZCA 140
Decision Date: 29 April 2021 at 9 am

CaseChat Overview and Summary

Eoin Murray Allison applied for leave to bring a second appeal against the High Court's reduction of the costs awarded by the District Court under the Costs in Criminal Cases Act 1967. The District Court had awarded $47,265 plus travel costs of $1,874.40, but the High Court reduced this to $339 plus the same travel costs. The primary legal issue was whether the Court should grant leave for a second appeal, considering the case's general or public importance or if a miscarriage of justice had occurred.

The Court of Appeal assessed the application under the Criminal Procedure Act 2011, determining if the appeal involved a matter of general or public importance or if a miscarriage of justice had occurred. The Court found that the High Court's assessment of the case's complexity and importance was a factual assessment, which did not meet the criteria for a matter of general or public importance. Furthermore, the Court was not persuaded that prosecutorial misconduct had occurred or that the case involved a miscarriage of justice.

The Court of Appeal declined the application for leave to bring a second appeal. The Court held that the High Court's factual assessment of the case did not involve a matter of general or public importance and that there was no sufficiently arguable case of prosecutorial bad faith. Consequently, the costs award remained at $339 plus travel costs.

Orders