C v Police HC Tauranga CIV 2008-470-221

[2008] NZHC 1950

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2008-470-221

BETWEEN  C

Applicant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 July 2008

(Heard at Rotorua)

Appearances: P G Mabey QC for the Applicant

S Bridges for the Respondent

Judgment:      9 December 2008 at 11:00 a.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 9 December 2008 at 11.00 a.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr P G Mabey QC, Barrister, Tauranga

The Crown Solicitor, Ronayne Hollister-Jones Lellman, Tauranga

C V NEW ZEALAND POLICE HC TAU CIV 2008-470-221 9 December 2008

[1] Mr C has applied for costs pursuant to the Costs in Criminal Cases Act

1967 (“the Act”).  This relates to a charge of careless use of a motor vehicle causing injury on 19 March 2005.  In the District Court, following a defended hearing, Mr C   was convicted.   An appeal against conviction was allowed (C   v New Zealand Police HC ROT, CRI 2007-470-25, 19 October 2007, Ronald Young J). Costs are sought for the proceedings in both Courts.

Facts

[2]      A summary of the facts is conveniently taken from the appeal judgment of

Ronald Young J:

[3]       During  19  March  2005  the  Bay  Rally  was  underway  around Gisborne.  Special Stage 6 was on a 19 kilometre stretch of Rukaka Road. The stage was due to be driven starting in the afternoon. Mr C  , the appellant, was asked by rally organisers to inspect the road covered by the special stage prior to the race. That section of roadway had been used earlier in the day as Stage 3 of the rally.

[4]       Mr C   was at the starting end of the special stage. He said in evidence he thought the road he was to inspect was a closed rather than a public road. This belief seems to have been based on two pieces of information. When preparing for a car rally it seems that two relevant documents are prepared with respect to the organisation; the control manual and the safety plan. Before Mr C   drove down Stage 6 he checked with the control manual which he said told him the road was to be closed from

12.15 p.m. that day some 40 minutes before his departure. Secondly, as he reached the start of the stage he saw a “road closed” sign on the side of the road leaning against a vehicle.

[5]       There was dispute about whether the appellant was entitled to rely upon the control manual and whether indeed the “road closed” sign was displayed in any event. There was dispute about whether in fact the appellant himself believed the road was closed. As to this, the District Court Judge concluded:

[38]      Without dismissing the unsettled feeling that the road was still open, the Court proceeds for arguments sake on [Mr C  ’s] assertion that he believed the road was closed.

[6]       Although worded somewhat diffidently I assume the Judge found the appellant honestly believed the road was closed and had been closed at 12.15 p.m. that day 40 minutes before his departure.

[7]       At the other end of the 19 kilometre section of roadway on that day

Mr Coker had been helping out at the rally by manning one of the radios

and, if needed, was available for recovery of vehicles. He believed the road was to be closed at 1.25 p.m. At about 1.00 p.m. he entered the 19 kilometre stretch of road  heading back to  his position  at  Rukaka  station.  He  was therefore heading towards the start of the 19 kilometre special stage. He was heading in the opposite direction to Mr C  .   Both Mr C   and Mr Coker were driving four wheel drive vehicles. As they both came to the brow of a hill they collided head-on. As I have said, Mr Coker was injured in the crash.

[8]       The road was narrow and windy. It had a gravel surface. It was common ground that neither driver could see over the apex of the hill before the collision.  Mr Coker said he was driving as far to the left as he possibly could on the road as he came over the brow of the hill and the collision occurred before he had any time to take evasive action.

[9]       Mr C   said that this was a narrow road with a single two-wheel track in the middle on which he was driving. He said he was carrying out his check on the 19 kilometre section of the road as he was requested to on the basis that no other vehicles would be on the road travelling in the opposite direction to him. He said, as he came to the brow of the hill Mr Coker’s vehicle appeared and that he had no time to react before the collision. He estimated his speed at 60 kilometres per hour.  At the commencement of the hearing the prosecution nominated the position of driving on the road and the  appellant’s  speed  as  the  two  aspects  of  carelessness  to  support  the charge.

Statutory provisions

[3]      The statutory provision of most relevance to this application is s 5 of the Act. Section 5 provides:

5         Costs of successful defendant

(1)Where  any  defendant  is  acquitted  of  an  offence  or  where  the information   charging   him   with   an   offence   is   dismissed   or withdrawn, whether upon the merits or otherwise, … the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.

(2)Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—

(a)Whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b)Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c)Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d)      Whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e)Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point:

(f)       Whether   the   information   was   dismissed   because   the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g)       Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

(3)There shall be no presumption for or against the granting of costs in any case.

(4)No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn.

(5)No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[4]      Costs on appeal are provided for in s 8 of the Act, the material provisions of which are:

8 Costs on appeals

(1)Where any appeal is made pursuant to any provision of the Summary Proceedings  Act  1957 or the  Crimes  Act  1961 the  Court  which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2)No defendant or convicted defendant shall be granted costs under this section by reason only of the fact  that his  appeal has been successful.

(3)No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.

…

[5]      Pursuant to s 13 of the Act, regulations were made in 1987 prescribing a scale of costs.  This scale has never been amended.  Section 13(3) provides for awards in excess of scale: see [43] below. Mr C   seeks full indemnity costs.

Investigation of the accident

[6]      Ms Rachel Harris was an assistant clerk of the course.  She was asked by the rally organisers to investigate the crash and provide a report, which she did.  Her role as a rally official was generally to assess what had happened, speak to as many witnesses as possible, and make a rough sketch with approximate areas of impact and related information.  She had no expertise in accident investigation.  She had not investigated an accident before.  Ms Harris is an accountant by profession.

[7]      Ms Harris went to the scene and spoke to both drivers.  Each driver told Ms Harris that he was driving at approximately 60 kilometres per hour.   Ms Harris concluded that there had been a head on collision near the brow of a hill.  It was a gravel road.  She expressed an opinion, from “marks on the road”, that Mr C   was driving in the middle of the road or to the right of the road.   She said “it appears” that Mr Coker was travelling on the left of the road at the time of the accident.  She accepted in cross-examination that the positions of the cars after the accident, which she observed, were of no assistance in determining the point of impact.  She also readily accepted that the marks on the road that she relied on to determine the point of impact were observed by her after Mr C  ’s car had been removed.  She said she did not know when the marks had been made.

[8]      Ms Harris also gave evidence on the question whether the road was closed.  I

will deal with this later.

[9]      A traffic crash report was completed on 21 March 2005 by Constable Farmer from Gisborne.   There are two sections in Constable Farmer’s report for “driver interview notes”.  In respect of Mr Coker, there is a note in brackets “(not spoken to)”, but it seems that Constable Farmer subsequently managed to speak to Mr Coker.  The advice from Mr Coker to Constable Farmer was:

Radio operator in the car [rally] and due to the bend we hit head on.

Mr Coker’s “speed before crash” is recorded as 50 km/h.   For the report question

“Too fast for conditions?” the entry is: “uncertain”.

[10]     Constable Farmer’s record of the discussion with Mr C   is as follows:

I was  driving south  towards Tinaroto, there  is  an  S bend just  after the Donaralle Park turnoff.   The bend is blind.   The other car was coming towards me.

Mr C  ’s “speed before crash” is recorded as 60 km/h.  For the question “Too fast for the conditions?” the entry is: “uncertain”.

[11]     Constable Farmer did not give evidence.   From his report it appears that Constable Farmer went to the scene of the accident, although it also appears that this would have been after the damaged cars had been removed.  There is a diagram in Constable Farmer’s report of the scene of the accident with notations referring to the brow of the hill and roadway under repair.  Constable Farmer’s conclusions were as follows:

Both vehicles approaching one another and on appearing over the [brow]

they have collided by scraping down their right sides.

Both vehicles approaching the [brow] of the road and because of the metal surface and the wheel tracks both vehicles had nowhere to go when they met and it was also quite narrow.

The District Court proceedings and evidence

[12]     The information was laid on 28 June 2005.  There is no evidence indicating that before this the Police had undertaken any enquiries beyond Constable Farmer’s enquiries and report and obtaining Ms Harris’s report.

[13]     Following a number of adjournments the case was called for a defended hearing in the District Court at Gisborne on 10 March 2006.  The prosecution had failed to ensure the attendance of Mr Coker.   Against Mr C  ’s opposition the case was further adjourned.   The Judge recorded the grounds in support of the

adjournment and the opposition in a minute and said, in respect of his decision to grant the adjournment:

That will be with costs on adjournment, in any event, reserved.

This raises a discrete issue in respect of costs which I will deal with at the end of this judgment.

[14]   The defence advanced by Mr C   involved two principal positive contentions.  The first was that Mr C   believed that the road had been closed at

12:15 p.m. and for long enough when he set out for there to be no on-coming traffic. The second contention was that carelessness on Mr C  ’s part could not be established.

[15]     There is no evidence before me that the Police were aware of the nature of the defence before the fixture on 10 March 2006, save that the charge was denied. There is evidence, however, and I find as a fact, that before the rescheduled hearing proceeded, the Police became aware that Mr C   was saying that the road was closed, or that he believed it was closed, and that the defence intended to call a traffic accident expert.  The basis for this knowledge was accepted by Mr Bridges for the respondent.

[16]     Before the trial commenced, there was, firstly, a letter from the officer-in- charge of the case to Mr C  ’s solicitor, making express reference to the question whether the road was closed.  Secondly, following the adjournment in March 2006, the Police produced an amended brief for Ms Harris.  In this Ms Harris, for the first time it seems, made statements on the question of road closure.   I refer to that evidence below.

[17]     As to whether there had been carelessness on Mr C  ’s part, and his proposal to call a traffic accident expert to give evidence on this point, in May 2006 a Police road accident expert made an inspection of the crash scene.  This was 14 months after the accident, some two months after the first scheduled date for the trial, and one month before the rescheduled trial date.  A brief of evidence from the Police expert, Constable Gordon, was subsequently produced and Constable Gordon

gave evidence.  I infer, as a finding of fact, that this enquiry occurred because the Police were then aware that Mr C   was calling a vehicle accident expert, Mr Graeme Williams.  Mr Williams is a retired police officer.  It is reasonable to assume that knowledge of his involvement arose from the fact that he was at Court for the proposed defended hearing on 10 March 2006.

[18]     The case was part heard over one day in the District Court at Gisborne on 26

June  2006  and  concluded  on  25  August  2006.    For  the  prosecution  there  was evidence from Mr Coker, Ms Harris, Constable Gordon and Mr David Picking.  For the defence there was evidence from Mr C  , Mr Murray Stance, an executive of Motorsport New Zealand, and the traffic accident expert, Mr Williams.

[19]     Most of Mr Coker’s evidence was directed to the accident itself.  For reasons I will come to it is unnecessary to summarise his evidence in that regard.  On the road closure issue he gave evidence as summarised by Ronald Young J at [7] of the appeal judgment: Mr Coker set out at about 1:00 p.m. (which was not long after Mr C   set out from the other end) and Mr Coker understood from a briefing that the road would not be closed until 1:25 p.m.

[20] Ms Harris gave evidence relating to her accident investigation, but it is unnecessary to refer to this beyond what is recorded at [7] above. On the question of road closure, Ms Harris said she had received a briefing about when the Ruakaka road would be closed for stage 6. Like Mr Coker, she said that the information she had was that the road was being closed at 1:25 p.m. She said this came from the control manual and the safety plan, two different rally documents. She also referred to the 1:25 p.m. closure time as being contained in “the road closure schedule from the Gisborne Council” which formed “part of the control manual”. In cross- examination Ms Harris confirmed that page 20 of the control manual in fact recorded road closure at 12:15 p.m. and closure at 1:25 p.m. was recorded at page 21 of the control manual. Ms Harris said the 12:15 p.m. closure time was a printing error. The cross-examination established that there were a number of errors or inconsistencies in the control manual as to the start time for other stages. In re- examination Ms Harris was referred to the fact that at page 5 of the control manual it was stated in respect of road closure notices that final confirmation was not available

at the time of printing of the control manual.  She was asked where she would expect to obtain information “about the finalised road closure time” and she said that this would be “a copy of the notification from the Council”.  This was inserted as pages at the end of the control manual given to officials by the clerk of the course the night before.  Ms Harris also referred to the separate document, the safety plan, provided to officials the night before which recorded the closure of stage 6 as 1:25 p.m. to

5:25 p.m.  Ms Harris said that she did not recall seeing a road closed sign at the start of stage 6 of the rally, where Mr C   entered the road.   She also said that she recalled a discussion with Mr C   in relation to insurance.  She said:

I assumed [Mr C  ] accepted that the crash had occurred on a public road, i.e. open to the public, and not on a closed road being used as part of the rally.

[21]     Mr Picking was the national underwriting manager for the company which was the insurer of the car driven by Mr C  .  Mr Picking, both from his brief and from his evidence, had no knowledge, direct or indirect, about the accident.   The most he could say, as a generalised proposition, was that an insurance claim in respect of the car being driven by Mr C  , which did not include disclosure of the fact that it was involved in a rally, might raise issues as to the validity of the claim. Mr Picking was not involved in any matter relating to the insurance claim in respect of the car driven by Mr C  .  The Judge made no findings on this evidence.  That is understandable.

[22]     The evidence-in-chief of Constable Gordon as to the cause of the accident, was summarised as follows:

In my opinion, as I have said, given the position of the defendant’s vehicle as shown in those photographs, his vehicle was certainly in my opinion too far to the right while negotiating that particular bend and as I have stated, certainly travelling at 60 kilometres an hour I would regard that as to be travelling too fast for that particular bend given that it was poor visibility.  I certainly would not want to meet another vehicle travelling at 60 kilometres around that corner.

The photographs Constable Gordon referred to were those taken by Ms Harris after the accident.

[23]     In cross-examination:

a)       Constable Gordon said in respect of Mr C  ’s speed of 60 kph travelling into the bend:

I expect by the same token that if a vehicle coming in the other direction, that is towards the defendant’s vehicle, was travelling at 60 kilometres an hour, that would be too fast also? – Yes, in my opinion, yes.

b)He acknowledged that the point of impact of the cars could not be determined from information in Ms Harris’s report and her photographs.

c)      He acknowledged that a range of scientific techniques used in investigations of vehicle collisions had not been used by him.

d)He took no measurements at the scene and was not able to determine the exact position of the cars on impact.

e)       He acknowledged that he was unaware until now  – “well I am now aware” – of the drivers’ references to their relative speeds and had not done his own calculations to determine the actual speeds of the two cars at the point of impact.

f)        He acknowledged when shown Mr Williams’ more detailed analysis (discussed below at [26]) that he could “only work from the photographic evidence that was given to me” but that Mr Williams’ analysis would suggest a head-on point of impact.  He acknowledged that Mr Williams’ analysis would be “pretty accurate”.

[24]     As recorded by Ronald Young J at [4], the essence of Mr C  ’s evidence on the road closure question was that he understood, from the rally control manual, that the road had been closed from the other end at 12:15 p.m.  He did not enter at the starting point of stage 6 until 40 to 45 minutes later, which he considered would have been ample time for traffic coming the other way to have come through.  He said that as he entered the start point he noticed a road closed sign.  He proceeded down the road on the basis that there would be no traffic coming towards him.  He

confirmed what the other witnesses had said – the accident occurred near the brow of a hill.  He said this was in circumstances where he had no opportunity to react and avoid a collision.  He estimated his speed at 60 kilometres per hour.

[25]     Mr Stance, an executive of Motorsport New Zealand, gave expert evidence as to the reasonableness of Mr C  ’s stated belief that the road was closed.   His opinion was that it was reasonable for Mr C   to enter stage 6 when he did in the belief that there would be no traffic coming towards him.  There was no challenge to Mr Stance’s expertise.   In fact, initially, there was no cross-examination by the prosecutor.  The Judge then asked Mr Stance to explain how there could be a road closed sign when Mr C   entered stage 6 at about 12:55 p.m. given that the official start time was 1:25 p.m.   Mr Stance explained this, in essence, as human error which can occasionally occur with “very minor roads” with very little local traffic.  This prompted some questions from the prosecutor but there was no material challenge to Mr Stance’s opinion that there was a reasonable basis for Mr C  ’s stated belief.

[26]     Mr Williams, the accident expert, said he carried out an investigation at the scene  on  3  September  2005  and  took  his  own  photographs  and  measurements. Based on this inspection, and the photographs taken by Ms Harris, Mr Williams applied the process of photogrammetry, something which Constable Gordon had not done.  Mr Williams concluded that the speed of both cars was less than the speeds the drivers had estimated.  Mr Williams gave a range of speeds for both vehicles as between 20 kph and 50 kph although he also said at 20 kph they could have stopped short of each other.  He said that if the speeds were 30 kph or more, in his opinion neither  driver  would  have  had  time  to  react  and  avoid  the  other  car.     He demonstrated that both vehicles were near the centre of the road immediately prior to impact and met head on.  He disputed Constable Gordon’s opinion that the accident was caused by Mr C  ’s going too fast.  At the end of Mr Williams’ evidence-in- chief there were the following questions and answers:

Q.Knowing what you know and having heard the evidence that you have heard, what do you say was the cause of this accident between these two vehicles on this road?

A.        The roadway was totally inadequate to enable the vehicles to pass on this bend.   The visibility is such that there was just insufficient distance for either driver to have been able to avoid one another.

Q.Mr Gordon, notwithstanding his lack of analysis, attributed the fault to Mr C  , would you do that?  Would you attribute fault to either driver?

A.No I think that if you are going to blame one driver, you have got to also put that same amount of blame on the other.

There was no cross-examination.

The District Court judgment

[27] The District Court Judge accepted that Mr C believed the road was closed: see [5] of the appeal judgment recorded at [2] above. However, the District Court Judge rejected the expert opinion of Mr Stance, even though it was not challenged, and found that Mr C was not justified in his belief that the road was closed and there would be no on-coming traffic. The conclusion of the District Court Judge that followed from this was recorded in the appeal judgment as follows (para [11]):

The  Judge  said,  therefore,  that  Mr  C    should  have  approached  his driving that day assuming that the road was not clear of other traffic.   In those circumstances, given the condition of the road the Judge said, “his speed, his position on the road at collision” enabled the Judge to conclude that the appellant had driven carelessly.   The Judge’s decision, therefore, came down to the proposition that a prudent driver would have assumed the road was an open road, and in those circumstances, given this was a winding gravel road, given the appellant’s speed and driving position on the road at collision his driving fell below the standard of a prudent driver.  As a result the accident occurred which in turn caused the injury.

The judgment on appeal

[28]     The principal reason for allowing the appeal was the conclusion of Ronald Young J that the District Court Judge was not justified in rejecting the expert opinion of Mr Stance that Mr C  ’s belief that the road was closed was a reasonable belief.  He stated:

[19]      While a Judge is not obliged to accept the evidence of a witness which  is  unchallenged  by  the  opposing  side,  in  this  case  the  basis  for rejecting the witness’ evidence as unreliable was not justified, in my view, on the evidence.    Mr  Stance’s evidence  was unchallenged,  detailed  and based on 30 years of experience and without evidence to contradict him.  In my view, on the evidence in this case, there appeared to be no basis for the Judge to reject it.

[20]     The other aspect of Mr Stance’s evidence was, that which might be reasonable in the circumstances for Mr C  , was not within common knowledge.    This  is  not  a  road  accident  where  a  Judge’s  own  daily experience of driving on the road could fairly be part of his decision making. This  case  involved  a  special  and  unusual  situation.    Once  the  Judge concluded that the appellant had honestly (and not imprudently) believed the road was closed and had been closed for up to 45 minutes before his journey some expert evidence was clearly going to be necessary to inform the Judge as to what the standard typically was in those circumstances.  The only such evidence, as to this, was from Mr Stance.

After reviewing the remaining relevant evidence Ronald Young J concluded:

[23]      In my view, therefore, given this evidence, the logical conclusion on the facts was that the prosecution had not proved a prudent driver would assume there was oncoming traffic, that is would assume that the road was open.   The appellant’s driving, therefore, needs to be judged against this background and finding, that the appellant was entitled to assume that only vehicles travelling in the same direction as him would be on the road.

[24]     The  District  Court  Judge’s  findings  considered  the  appellant’s driving on the special stage based on his conclusion that he should have assumed oncoming traffic.  In those circumstances his conclusions, given the evidence of the expert witness for the defence, which effectively concluded neither driver was able to stop on the visible road ahead, was inevitable.

[25]     However, the position is now quite different given my findings.  In these circumstances, the prosecution properly, in  my view,  accepted  the appellant’s  driving could not have  been careless.    If  he  was  entitled  to assume there would be no oncoming traffic then his speed and position on the road would not be imprudent nor could the collision be seen to be his fault in the circumstances.   There was no suggestion that either car could have  evaded  the  accident  given  their  speed  and  lack of  visibility.    The evidence given by the expert called by the defence, effectively unchallenged by the prosecution, was that the roadway where the collision occurred was simply too narrow for two vehicles, of the size of those involved in the collision, to pass.

Submissions

[29]     Mr Mabey QC, for Mr C  , submitted that Mr C   is entitled to full indemnity costs and disbursements, for the proceedings in both Courts.  Mr Mabey

submitted that the factors specified in s 5(2) of the Act, apart from paragraphs (a) and (e), were relevant and all required a conclusion in favour of Mr C   or against the prosecution.  The argument was summarised in Mr Mabey’s written submissions as follows (para 11):

It is submitted that the police investigation of the accident was inadequate and that a proper investigation would have (or should have) made clear that there was never a viable prosecution case against Mr C  .   The police investigation was inadequate and lacking in a number of particulars being:-

(a)Reliance upon an inadequate, and unqualified, ‘reconstruction’ of the accident by rally personnel (Harris).

(b)Failure to engage a qualified expert in motor vehicle accident reconstruction prior to, or after, Mr C   being charged.

(c)       Failure   to   obtain   expert   opinion   in   relation   to   the   unusual circumstances pertaining to the offence (as referred to by Justice Ronald Young – paragraph 20).

(d)Failure to consider the actions of the other drivers (Mr Coker) in determining if Mr C   should be charged or if the accident was inevitable.

(e)       Charging Mr C   in face of police opinion (Mr Farmer) that the accident was inevitable.

[30]     What was summarised in this paragraph  was developed in a  careful and detailed argument, traversing the investigation and evidence which I have sought to summarise above.  Mr Mabey referred also to several decisions under the Act both in respect of the general principles and costs in excess of the scale prescribed in the regulations: Brown v Police (HC AK, CRI 2003-404-000194, 31 October 2007, Williams J); R v Margaritis (HC CHCH, T66/88, 14 July 1989, Hardie-Boyes J); R v CD (1976) 1 NZLR 436; Long v R [1996] 1 NZLR 377; R v T [1992] 3 NZLR 215; Y v R (HC AK, T281/96, 21 July 1997, Salmon J); T v Collector of Customs (HC CHCH, AP167/94, 28 February 1995, Tipping J).

[31]     For the respondent, Mr Bridges submitted, in particular, that s 5(2)(b) was a significant consideration against an award of costs: at the commencement of the proceeding the Police did have sufficient  evidence  to  support  conviction  of  Mr C   in the absence of contrary evidence from him.  At the heart of this submission was the lack of indication at the outset that Mr C   thought the road was closed and, given that apparent state of mind, his acknowledged speed on this very narrow

road, with limited visibility, was careless. Mr Bridges submitted that because of this the Police had no need to call evidence from a road accident expert.

[32]     Mr Bridges further submitted that, if an award is to be made, it should be limited  to  scale costs  as  stipulated  in  s 13(3),  there  being  no  special  difficulty, complexity, or importance in the case.

Discussion

Entitlement to costs?

[33]     It is convenient to assess the factors specified in s 5(2), and other factors relevant to exercise of my discretion, by reference to the two principal issues dealt with in the District Court and on appeal: (1) the reasonableness of Mr C  ’s belief that the road was closed and (2) the quality of his driving on the assumption that it was not reasonable for Mr C   to have concluded that it was closed.

[34]     I am satisfied that the initial investigation by the Police was adequate in the circumstances, that there were reasonable grounds to lay the information and that, in the light of the knowledge the Police had at that stage, they might reasonably have anticipated conviction in the absence of evidence for the defence.  There is nothing to indicate that the Police were aware, when the information was laid, that Mr C   believed the road was closed, or that he would be contending that the road was closed.  Indeed, the fact that another rally official, Mr Coker, was on the road going the other way, might reasonably have led to the conclusion that the road was open. And in my judgment there was nothing which required the Police to investigate the possibility that Mr C   might have thought the road  was closed.   Given the circumstances I have just described, the conclusions of the Police investigator, Constable Farmer, the nature of the road, and the fact that Mr C   himself said he was travelling at about 60 kilometres an hour, I consider that the prosecution was properly brought.

[35] I am not persuaded by Mr Mabey’s submissions directed to the inadequacy of the Police investigation of the accident scene and issues relating to reconstruction of the accident. If there had been no Police expert evidence this would have made no difference to the question whether Mr C ’s driving was careless on the assumption that he should have known the road was open. That was in fact one of the conclusions of Mr C ’s expert, Mr Williams. This was also averted to by Ronald Young J at [24] recorded at [28] above.

[36]     The next question is whether it was reasonable for the Police to continue with the  prosecution  once  the  officer-in-charge  was  aware  that  part  of  Mr  C  ’s defence was that he believed the road was closed.  If the Police had been provided with a brief of Mr Stance’s expert opinion before the defended hearing commenced, it might have been unreasonable for the Police to have continued with the prosecution; at least in the absence of a contrary opinion from a rally expert.

[37]     However, there was no evidence before me that the Police were provided with a brief of evidence from Mr Stance or advised to speak to Mr Stance.   The information that was available to the Police, on the road closure issue, would reasonably have led the officer-in-charge to the conclusion that the definitive information on road closures made clear that stage 6 was not closed until 1:25 p.m. Based on the final road closure documents, and advice apparently received from Ms Harris on  this  question,  if  not  also  from Mr  Coker,  the  officer-in-charge  could reasonably have concluded that there was no reasonable basis for an assertion by Mr C   that Mr C   believed the road was closed.

[38]     In this regard it is relevant that the conclusion of the District Court Judge that Mr C   did believe the road was closed was a conclusion reached with some hesitation.  The fact that the Judge did give Mr C   the benefit of the doubt was, as already indicated, central to the decision of Ronald Young J to allow the appeal. But the question before me is quite different, directed as it is to the reasonableness of the  Police  action  in  continuing  with  the  prosecution.    If  a  Judge  comes  to  a conclusion on a central issue with some hesitancy, it cannot be said with any confidence that there was error by the prosecution in bringing the issue before the Court.  And beyond the question whether Mr C   did believe the road was closed

was the question whether that was a reasonable belief.  In the normal course that also would not be a matter for a prosecutor to determine.

[39]     In the end, Mr C   did establish that he was not guilty.  This was based in large measure on the evidence from Mr Stance which was not challenged in any material way by the prosecution.   As I noted earlier, there was not even cross- examination of Mr Stance save for some brief questions asked following final questions from the Judge.  In the light of the decision on the appeal the matter should have been determined in Mr C  ’s favour at the conclusion of the District Court hearing.  It was not a case on appeal of a Judge reaching a different conclusion from the Judge at first instance on a finely balanced point.  Ronald Young J observed that it was difficult to understand the Judge’s conclusions about Mr Stance’s evidence. And, as counsel for the respondent on the appeal acknowledged, given a finding that Mr C  ’s belief that the road was closed was a reasonable belief, his driving could not have been careless.

[40]     In my judgment, the questions posed by paragraphs (a) to (d) of s 5(2) of the Act are generally to be answered in favour of the prosecution.  The question posed in paragraph (f) favours Mr C  .  However, the Court is not restricted to considering those factors in exercising its discretion.  There are some other considerations.

[41]     Mr  Picking’s  evidence  was  of  no  material  assistance  to  the  Court  and probably Mr Picking should not have been called to give evidence.  At least to an extent this aspect of the Police case might be seen as over-zealous prosecution, something which should not occur.  The belated decision of the prosecution to call expert evidence on the accident, from Constable Gordon, is also open to criticism. Constable Gordon’s investigation was fairly perfunctory.   That  may be because adequate resources were not made available to Constable Gordon.  But whatever the cause, it was evidence which Mr C   had to respond to but it did not provide the sort of assistance to the Court that should have been provided by an expert.  This is sufficiently demonstrated by the fact that Constable Gordon readily deferred to the conclusions of Mr Williams where they differed from his own.

[42]     Weighing all these matters, the further statutory guidelines in ss 5(3)-(5), and the principles and observations in the cases referred to by counsel, I am satisfied that Mr C   is entitled to an award of costs on the District Court hearing.  The issue of costs on appeal under s 8 necessarily requires consideration of many of the same matters.  I am satisfied that costs on the appeal are also warranted.  The question then is whether costs should be limited to the scale.  If the costs are to exceed scale there is a further question whether this is a case where indemnity costs should be awarded, as sought by Mr C  .

Costs in excess of scale?

[43]     An award of costs in excess of the scale is governed by s 13(3) as follows:

(3)Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

[44]     In T v Collector of Customs Tipping J said, at p 2:

The use of the word “special” when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important.   The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered.  Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had a special importance to him.

[45]     The need for any special importance to be more than special importance to the applicant was affirmed in an obiter observation of the Court of Appeal in R v Rust [1998] 3 NZLR 159 at 164.

[46]     As for the general meaning of “special difficulty, complexity, or importance”, I  do  not  take  Tipping  J’s  use  of  the  expression  “significantly  greater  than  is ordinarily encountered” as intended to be a definitive reinterpretation of the words used.  The words “special difficulty, complexity, or importance” are straight forward words  which  will  apply  in  many  different  ways  in  the  circumstances  of  any

particular case.  As Randerson J said in Brocas v The Police (HC AK, AP279/97, 9

April 1998) at p 9:

It will usually be a matter of degree whether the case is one involving special difficulty, complexity or importance.

A number of the cases cited by Mr Mabey, and noted at [30] above, illustrate the wide variety of circumstances in which costs in excess of scale have been awarded. See also R v Afato [2008] NZCA 208 (4 July 2008, CA39/2008).

[47]     I am satisfied that costs in excess of scale are justified under s 13(3).  Brown v Police, earlier cited, was a case involving a road accident.  Williams J described what occurred in that case as a “relatively workaday collision”.   In this case the collision  itself  was  relatively  workaday,  but  the  other  circumstances  were  not. Aspects of this were referred to by Ronald Young J at [20], albeit in a different context:

The  other  aspect  of  Mr  Stance’s  evidence  was,  that  which  might  be reasonable in the circumstances for Mr C  , was not within common knowledge.    This  is  not  a  road  accident  where  a  Judge’s  own  daily experience of driving on the road could fairly be part of his decision making. This case involved a special and unusual situation. …

There were difficulties, and to an extent complexities, which were “special” because the circumstances  of  this  case in  respect  of  the  operation  of  a  rally were  well removed from the ordinary.

[48]     There is also an element of special importance in the sense explained by the Court of Appeal in R v Rust: “objectively of importance in legal consequence”. In the District Court Mr C positively established that he was not guilty on the basis of the uncontradicted evidence of Mr Stance. I discussed this at [39]. There was a point of general principle from the finding on appeal in addition to the aspect of purely personal importance for Mr C .

Costs in excess of scale

[49]     I am not persuaded that Mr C   is entitled to recover all of the costs he incurred.  Mr Mabey referred to an observation of Hardie-Boyes J in R v Margaritis:

However, where the defendant/accused should never have been charged because he was innocent of wrong doing and the prosecution knew or ought to have known that, in my judgment it cannot be said that he should bear any of the costs demonstrating that innocence to the court.  This would be a case where the innocent person is prosecuted in bad faith or as a result of inexcusable negligence on the part of the prosecution.

The circumstances referred to there do not apply in this case.

[50]     In Y v R, also referred to by Mr Mabey, Salmon J said, at p 8:

[A] total indemnity for costs would only be appropriate in cases where the

Court were to conclude that the prosecution should never have been brought.

[51]     And in R v Mather and Brown (HC CHCH, T33/97 and 34/97, 26 July 1999) Chisholm J said, at p 10:

My interpretation is that full indemnity will be rare and is likely to be reserved for exceptional cases probably involving bad faith or other gross misconduct.

[52]     Counsel  did  not  refer  to  any  case  in  which  indemnity  costs  have  been awarded. I am aware of three: R v Coombes (HC PMN, T9/02, 18 November 2003, Wild J); Frith v H & V (HC ROT, CRI 2007-436-82/83, 10 April 2008, Allan J); and a decision of mine in Yoon v K (HC AK, CIV 2008-404-1141, 28 August 2008). Those cases involved factors which are not present in this case.

[53]     Coombes  was  a  prosecution  on  three  charges  of  sexual  offending.    The accused was discharged under s 347 of the Crimes Act 1961 during the trial.  The relevant considerations were: complaints of sexual  offending sometimes  warrant charges although the Crown evidence is not “robust” (relying on Y v R); cross- examination of the complainant was not possible at depositions; the first opportunity to test the complainant’s evidence was therefore at trial; this results in a burden on an accused which might not be present in other cases.

[54]     Frith was a private prosecution against two police officers.  Allan J held that indemnity costs were warranted because the prosecution brought into question the integrity of the criminal justice system and because there was never any justification for the charges to have been brought.

[55]     Yoon was another private prosecution.   In that case  the  prosecution  was commenced in pursuit of private interests arising from commercial dealings between the private prosecutor and the defendant, and there was no evidence to support a conviction.

Quantum

[56]     Costs to Mr C   according to the scale would be $1,130 plus expenses as prescribed.  Excluding the costs and disbursements incurred up to and including the adjournment,  the  total  for  costs  and  disbursements  claimed  by  Mr  C    is

$28,578.80.  Of this total $11,250 is for counsel’s fee plus GST on the appeal.  The balance of $17,328.80 in large measure relates to costs and disbursements for the District Court hearing.

[57]     Pursuant to s 5(2) the factors which led to my decision that Mr C   is entitled to costs may also be brought into account in deciding the quantum.  It is also appropriate to have regard to the further matters considered under s 13(3).  Taking account of these considerations I consider it appropriate to award Mr C   50% of counsel’s fee for the appeal; that is, $5,625.   That is not an assessment of the reasonableness of the fee.   There was no challenge for the respondent to the reasonableness of the fee.  The amount I am awarding is an allowance having regard to all of the provisions of the Act, including its constraints.

[58]     In respect of the balance of $17,328.80 I consider that the allowance as a percentage should be less than the allowance for the appeal.  In that regard I allow a total of $5,000.

Costs on the adjournment

[59]     The  total  of  costs  claimed  up  to  the  adjournment  is  $5,029.39.    Full particulars were provided in a memorandum for Mr C  .  There was no challenge to the reasonableness of the elements making up this total.

[60]     In his minute on the adjournment Judge Adeane said:

[2]       We have now reached a situation where, for want of a more succinct expression, the officer in charge of the case has made a mess of notifying the complainant of this fixture.  I do not know how on earth that came about, but the complainant, an essential witness, is in Australia at the moment on a course and will not be back in Gisborne until tonight.   The Prosecution cannot proceed without him.  On the other hand the Defence is present and ready to proceed.  Mr Miller advises me that he has not only the defendant with him but a witness from Palmerston North, an expert in motor racing issues, and a senior Road Transport crash analyst from the Waikato also here, and self evidently at considerable expense to the defendant, Mr C  .

[3]       There are, however, no other matters of prejudice to the accused. The case can proceed as well another day as it can today.   The dominant question is inconvenience and attendant wasted costs. …

[61]     What occurred on the adjournment, with the costs incurred by Mr C   being totally wasted, is not dissimilar to costs being incurred by a defendant on a prosecution which should never have been brought.  In respect of the adjournment I am satisfied that Mr C   is entitled to full indemnity for the wasted costs on the adjournment.

Result

[62]     I award the applicant the sum of $15,654.39 pursuant to ss 5 and 8 of the

Costs in Criminal Cases Act 1967.

Peter Woodhouse J