B v Police HC Auckland CRI 2006-404-133

[2006] NZHC 904

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-133

CRI 2006-404-134

BETWEEN  B

Appellant

AND  NEW ZEALAND POLICE Respondent

Appearances: R E Harrison QC for the Appellants

C Parkhill for the Respondent

Judgment:      3 August 2006

ORAL JUDGMENT OF PRIESTLEY J

Counsel/Solicitors

R E Harrison QC, P O Box 1153, Auckland
C Parkhill, Meredith Connell, P O Box 2213, Auckland

R Wood, P O Box 6422, Auckland

B V POLICE HC AK CRI 2006-404-133  3 August 2006

[1]      This is an appeal against the refusal by Bouchier DCJ to grant the appellants’

costs under s5 of the Costs in Criminal Cases Act 1967.

[2]      In a number of respects the contest between the parties is in an unsatisfactory state as will be apparent from my subsequent narrative.

In the Court Below

[3]      As the result of the arrest of a person arising from some public demonstration in March 2005 the appellants, as was their right, attended the Auckland District Court in Albert Street on 21 March 2005 to support that person when he was to appear in number 3 court that day.

[4]      The court manager at that time, Mr K Robinson, had various concerns that the appellants and, probably more importantly, other people in the precincts of the court might disrupt court proceedings and/or the general state of order in the courthouse building.  He thus purported to exercise various rights under the Trespass Act 1980.  In the wake of that purported exercise the appellants were arrested and charged for alleged offences under ss3 and 11 of that Statute.

[5]      A  defended  hearing  at  which  the  appellants  were  represented  by  senior counsel took place before the Judge in the Auckland District Court on 10 June 2005. Prior to that hearing the appellants’ solicitor, Mr Richard Wood, had written to the prosecution in fairly trenchant terms pointing  out perceived  difficulties with the prosecution case and also raising what in my view were important and legitimate constitutional issues.

[6]      The defended hearing got underway.   During the course of the hearing the prosecutor reached the view that he was unable to establish an essential ingredient of the charge.  No further evidence was offered with the inevitable consequence that the informations were dismissed.

[7] At the conclusion of the hearing, and legitimately so in my view given both the brief history I have outlined and the competing civil liberties/constitutional issues involved, Mr Harrison indicated that he wished to apply for costs under the Costs in Criminal Cases Act. An exchange is recorded in the transcript in which the Judge indicated she was happy for the appellants to make their application and that she would “hear from the prosecution in reply and adjudicate on it”.

Process of Adjudicating Costs Application

[8]      What followed was in my clear view procedurally flawed.   For whatever reason the Judge found herself in a position in which she adjudicated on the claim under  the Act  without  the benefit  of full submissions and  without  the apparent opportunity to consider and weigh the competing interests involved.

[9] It is relevant to observe that s5 of the Act involves the exercise of a very broad judicial discretion in respect of which there are a number of reported authorities.

[10]     The appellants’ submissions were prepared by their counsel.   Costs were sought in a situation where solicitor/client costs were approximately $8,000. Importantly at the stage those submissions were prepared, the appellants’ counsel did not have the benefit of the court transcript.

[11]     A  solicitor  acting   for  the  respondent   prepared  submissions   in  reply. However,  before  those  submissions  were  prepared  the  respondent’s  solicitor requested the District Court registry to type up the transcript.   The respondent’s submissions made reference to that transcript and also attached various briefs of evidence from potential witnesses who had not been called at the point the informations were dismissed.

[12]     Sensibly counsel for the appellants had already in his submissions sought the opportunity to file submissions in reply.  Although before me Ms Parkhill suggested

that the exchange at the conclusion of the hearing was tantamount to a timetable order she now accepts that such a submission is untenable. The appellants were thus in a position where first they were faced with competing submissions, referring to materials their counsel had not had the opportunity to consider and examine, and secondly, of course, in a general way counsel needed to address matters highly relevant to the s5 discretion put forward by the respondent.

[13]     That opportunity was denied, however, to the appellants’ counsel.  It would appear that on 10 January 2006 during the summer vacation period, the Judge wrote a judgment.  This judgment is in handwriting.  Why it has not been typed, in terms of normal court  practice,  is  unclear.    It  contains  language  which,  with  respect,  is surprising given the complexities of the matters before her.   She stated that she “absolutely rejected” the submission that the evidence before her was a “reckless prosecution”.  She also rejected the costs application as being “without foundation on the evidence before me”.

[14]     Significantly, and with the greatest of respect, the Judge reached those views first  in the  absence  of what  would  undoubtedly  have  been  helpful and  focused submissions in reply from senior counsel, and secondly without in any detailed way grappling with or analysing the competing arguments which at that stage had been placed before her.

[15]     Submissions in reply were in any event filed by Mr Harrison on 18 January

2006, he being oblivious to the fact the Judge had already determined the matter eight days previously.   Even more surprisingly a memorandum from the Criminal Section of the Auckland District Court releasing the Judge’s hand-written decision was not forwarded to the parties for another two months (29 March 2006).

Decision

[16]     Although Ms Parkhill at one level is undoubtedly correct when she submits that the Judge has exercised a broad discretion and that as presiding Judge she was entitled to reach the views that she did, it is clear from my narration that the Judge did not in fact exercise her discretion with the advantage of full submissions by

counsel.    Given that  the respondent’s submissions  rode on  an  information  base unavailable   to   counsel  for   the   appellant,   the   requested   opportunity  to   file submissions in reply should have been granted and would undoubtedly have assisted the Judge.

[17] In effect there has been a process error. Although on one level the Judge’s hand-written decision touches the correct bases, at a substantive level it fails to address the real and important issues which lay behind the application under s5 and what required analysis and reasoned consideration.

[18]     For these reasons therefore I intend to allow the appeal.

Future Determination

[19] My instinctive reaction was that the preferable course of action would be for me to remit to the District Court under s131 of the Summary Proceedings Act 1957 the entire s5 application for reconsideration. I note that this was a course of action adopted by Salmon J in Chisholm v Police (High Court Auckland AP 173/98 10

November  1988).    In  some  respects  the  facts  are  very  similar.    I  also  have reservations about removing from the experienced Judge who  presided over  the defended hearing the normal responsibility of concluding outstanding matters.

[20] Remitting back to the Judge would be Ms Parkhill’s preferred course of action. An additional problem faced by counsel for the respondent is that she is understandably not prepared today to argue the substantive issues which would arise in the wake of the appeal being allowed, namely whether the s5 discretion should be exercised and if so what an appropriate award would be.

[21]     Mr Harrison QC, however,  opposes my remitting  the  matter back  to the District Court.  His first argument is that the somewhat trenchant language employed by the Judge would, so far as his clients are concerned, give rise to concerns about bias.   I am unmoved by that submission.   It is a matter of function and I have no doubt, and I am sure Mr Harrison would accept, that this experienced District Court

Judge with the benefit of submissions from counsel would be able without difficulty to determine the matter if called upon to do so.

[22] The other arguments raised by Mr Harrison have in my judgment greater force. These include the possibility that if the lower court were to reject the s5 application or make a paltry award a second appeal to this court would be forthcoming. Finally, given the effluxion of time and the fact that this prosecution foundered over a year ago, coupled with the fact that the claimed sum is quite small, a more cost effective and fairer way of dealing with the situation is for this court to determine the s5 application. Mr Harrison also expressed some cautious optimism (in my view legitimately) that the dispute between the parties was capable of sensible settlement. I urge on both parties that course of action.

[23]     For the reasons inherent in those two submissions of Mr Harrison which I accept, I therefore direct that this matter is to be listed for a half day hearing as soon as possible.   It would be helpful in the circumstances if counsel for the appellant were to file full submissions on the costs issue alone five working days before the allocated hearing, with submissions in reply two days prior.  The Criminal Fixtures Registrar is directed to give this matter a degree of priority.  In my view the matter is not suitable to be set down before a Duty Judge but could well be allocated fixture time during the course of another criminal appeals day or week.

[24]     I recommend a hearing at 2.15 on Friday 27 October 2006.  That is a tentative recommendation on my part only to be confirmed by the Fixtures Registrar with both counsel.

Costs

[25]     The  issue  of  costs  on  this  hearing  is  reserved  for  the  hearing  on  the substantive matter.

…………………………

Priestley J