Bernard Christopher Francis v David John McDonald
[2001] NZCA 218
•29 August 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 101/01 |
| BETWEEN | BERNARD CHRISTOPHER FRANCIS |
| Applicant |
| AND | DAVID JOHN MCDONALD |
| Respondent |
| Hearing: | 29 August 2001 |
| Coram: | Richardson P Heron J Chambers J |
| Appearances: | P T Birks for the Applicant D J Boldt for the Respondent |
| Judgment: | 29 August 2001 |
| JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J |
Costs in criminal cases
In December 1998 Bernard Francis brought a private prosecution against John McDonald, the Crown Solicitor in Rotorua. Mr Francis alleged that on 1 December 1998 Mr McDonald committed an offence against s 117(d) of the Crimes Act 1961 in that Mr McDonald wilfully attempted to obstruct, prevent, pervert or defeat the course of justice by misleading Judge Cooper into believing that a particular information had not been dismissed by another judge on 18 December 1997.
The preliminary hearing of that charge took place on 18 March 1999 before Judge Kendall. Judge Kendall discharged Mr McDonald under s 167 of the Summary Proceedings Act 1957.
Subsequently Mr McDonald sought costs against Mr Francis under the Costs in Criminal Cases Act 1967. Mr Briscoe, who appeared for Mr McDonald in support of that application, sought costs under s 5. He sought an order in excess of scale costs. (For the scale, see the Costs in Criminal Cases Regulations 1987 (SR 1987/200).) Costs in excess of scale may be awarded under s 13(3) where the court “is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.
Judge Kendall heard Mr McDonald’s application on 19 May last year. He made an order that Mr Francis pay Mr McDonald costs in the sum of $9,174.43. That sum did exceed scale costs. Judge Kendall recorded in his reasons for judgment that payment of costs in excess of scale was appropriate in view of “the special importance of the case”. Mr Francis appealed against that costs order under s 115DA of the Summary Proceedings Act 1957. Nicholson J heard and dismissed the appeal. Mr Francis then sought leave, under s 144(2) of the Summary Proceedings Act, to appeal to this court. Potter J heard and dismissed that application. Mr Francis now seeks special leave to appeal from this court under s 144(3).
Issues on the application
In order to obtain special leave to appeal from this court, Mr Francis must convince us that there is a “question of law involved in the appeal [which] is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”. The precise question which Mr Francis desires to have answered was not specified in the written material which his counsel, Mr Birks, put before us. Following an exchange with the bench, however, Mr Birks confirmed that the question he seeks to submit for our ruling is as follows:
“Was the court entitled to regard the fact that it was a Crown Solicitor who had been charged with wilfully attempting to obstruct, prevent, pervert or defeat the course of justice as giving the case ‘special importance’ for the purposes of s 13(3) of the Costs in Criminal Cases Act 1967?”
The test on applications for leave under s 144(3) of the Summary Proceedings Act was fully discussed in R v Slater [1997] 1 NZLR 211 (CA). The issues that arise on the application for special leave are:
(a) Is the question as formulated a question of law?
(b) Even if it is, is it one which, by reason of its general or public importance, or for any other reason, ought to be submitted to this court?
Our decision
We have considerable doubt as to whether the formulated question is a question of law at all. But, even if it is, it is not a question of general or public importance. It is extremely rare for a Crown Solicitor to be charged with a crime. Indeed, the fact that a Crown Solicitor was charged may be unprecedented in this country. There is no general or public importance in this court determining whether the fact that it was a Crown Solicitor who had been charged was a factor to which the court could have regard in determining whether the case had “special importance” for the purposes of s 13(3) of the Costs in Criminal Cases Act. The circumstances are not likely to be repeated. There is no question of statutory interpretation involved. Nor can we see any other good reason why this court should formally deal with the question. Mr Francis has had an appeal. There is now a High Court decision on the point. That decision was completely in accord with Judge Kendall’s at first instance. It is a comparatively simply question of applying words of open texture - “special importance” - to the particular facts of the criminal proceeding in question. The s 144(3) test has not been made out.
We would observe in passing that the decisions of Judge Kendall and Nicholson J seem entirely right. The fact that it was a Crown Solicitor who was charged with attempting to pervert the course of justice was surely extremely significant and gave the case special importance. If the charge had been made out, it would have thrown into question the administration of justice in this country. There would have been significant questions as to how a man guilty of such a crime had been given a warrant of Crown Solicitor in the first place. It would have raised questions about how justice had been administered in the Rotorua district since Mr McDonald became Crown Solicitor. Crown Solicitors make dozens of discretionary decisions every year. If Mr McDonald had been found guilty of the charge, it is by no means inconceivable that a large number of those discretionary decisions might have required revisiting.
Mr Birks made the point that Judge Kendall and Nicholson J, by singling out the fact that Mr McDonald was Crown Solicitor, somehow put him on a pedestal above other lawyers for whom a charge of obstructing the course of justice would also be devastating. We accept that any lawyer would be devastated by having such a charge brought against him or her. It may be that, were any lawyer to defend successfully such a charge, he or she might also be able to overcome scale maximums under s 13(3). Judge Kendall and Nicholson J stressed Mr McDonald’s position as Crown Solicitor simply because it is undeniable that the consequences of a Crown Solicitor being found guilty of attempting to pervert the course of justice are even more significant than the consequences for any other lawyer being found guilty on such a charge.
Result
The application for special leave under s 144(3) of the Summary Proceedings Act is dismissed. Mr McDonald did not seek costs. There will be no order as to costs.
Name suppression
Mr McDonald currently enjoys name suppression. Whatever justification there may originally have been for name suppression, there is none now. Mr McDonald has been fully vindicated. Judge Kendall in his first judgment referred to Mr Francis as having “become obsessed”. He described him as “confused”. He might even be “wilful and mischievous”. Judge Kendall described the allegations as “baseless”. In his second judgment, dealing with Mr McDonald’s application for costs, Judge Kendall described the charge as “without foundation”. There was, he said, “no case to answer” and “Mr McDonald’s innocence was well and truly established”. Comments to similar effect were made by Nicholson J in his reasons for judgment on the appeal. In circumstances where there is no stain whatever on Mr McDonald’s reputation, we can see no basis for continued name suppression. The difficulty with continuing name suppression is that publication of this judgment on such a basis would immediately lead to speculation as to which Crown Solicitor had been involved. If Mr McDonald’s occupation was also to be suppressed, as has previously been the case, then this judgment would effectively have to be entirely suppressed. The fact that the defendant and applicant for costs was a Crown Solicitor is at the heart of the matter we have had to determine, as the text of this judgment clearly shows.
For these reasons we revoke the existing suppression order.
Solicitors
P T Birks, Rotorua, for Applicant
Crown Law Office, Wellington, for Respondent
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