BETWEEN KEVIN-JOHN TITO AND TUI-DOROTHY TITO Applicants AND NEW ZEALAND POLICE Respondent

[2024] NZCA 442

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA341/2023
 [2024] NZCA 442

BETWEEN	KEVIN-JOHN TITO AND TUI-DOROTHY TITO Applicants
AND	NEW ZEALAND POLICE Respondent

Court:	Courtney and Collins JJ
Counsel:	Applicants in person J P Golightly for Respondent
Judgment: (On the papers)	13 September 2024 at 11 am

JUDGMENT OF THE COURT

The respondent’s application for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. On 5 December 2023, we declined Mr and Mrs Tito’s applications for leave to extend time to appeal and for leave to bring a second appeal.[1]

   [1]Tito v Police [2023] NZCA 618.

2. On 19 December, the New Zealand Police (the Police) filed a memorandum seeking costs under the Court of Appeal (Civil) Rules 2005.  The Court then issued a minute questioning whether or not costs could be awarded under the Court of Appeal (Civil) Rules in this case. 

The Police’s current position

1. Notwithstanding that the Police initially applied for costs under the Court of Appeal (Civil) Rules, it now accepts that the only pathway for costs in this case is under the Costs in Criminal Cases Act 1967.

2. The Police still seeks the same level of costs as it sought when it made its application under the Court of Appeal (Civil) Rules.

3. Mr and Mrs Tito have not addressed the issue of jurisdiction or how the Court should respond to the Police’s applications for costs.

Analysis

1. Rule 4(1) of the Court of Appeal (Civil) Rules states that those rules apply to all proceedings in this Court except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply. Under r 4(1)(a) of the Court of Appeal (Criminal) Rules and s 8 of the Costs in Criminal Cases Act the application brought before us can only be subject to a costs award made under that Act.

2. The making of awards under the Costs in Criminal Cases Act is discretionary and there “must be something significantly out of the ordinary to justify an award of costs on a criminal appeal”.[2]  Whilst Mr and Mrs Tito’s applications were declined by this Court, we do not accept that the applications meet the threshold of “frivolous or vexatious”.[3] 

Result

[2]W(CA447/2017) v R [2020] NZCA 283 at [15].

[3]Costs in Criminal Cases Act 1967, s 8(5).

1. The respondent’s application for costs is declined.  

Solicitors:
Marsden Woods Inskip Smith, Whangārei for Respondent