Cavanagh v Police - [2023] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA475/2022
[2023] NZCA 57

BETWEEN	MARIA ELENA JEAN CAVANAGH Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	French, Ellis and Churchman JJ
Counsel:	Applicant in person B So for Respondent
Judgment: (On the papers)	14 March 2023 at 2.15 pm

JUDGMENT OF THE COURT

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

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

Ms Cavanagh was charged with trespass and resisting arrest following a tenancy dispute. The District Court subsequently dismissed the trespass charge under s 147 of the Criminal Procedure Act 2011 (CPA) and the police withdrew the charge of resisting arrest.[1] Ms Cavanagh then applied for indemnity or (alternatively) scale costs against police under the Costs in Criminal Cases Act 1967 (CCCA).
[1]Police v Cavanagh [2021] NZDC 22627 [dismissal judgment].
In general terms the CCCA provides that where a defendant is acquitted of an offence or where the charge is dismissed or withdrawn, on the merits or otherwise, the Court may order that they be paid such sum as it thinks just and reasonable towards the cost of their defence.[2]
[2]Costs in Criminal Cases Act 1967 (CCCA), s 5(1).
The District Court declined her initial application for costs.[3] Ms Cavanagh then appealed to the High Court, but her appeal was dismissed.[4]
[3]Police v Cavanagh [2022] NZDC 5549 [District Court judgment].
[4]Cavanagh v Police [2022] NZHC 2174 [High Court judgment]; additionally, a related complaint made by Ms Cavanagh to the Independent Police Complaints Authority about the conduct of the police in her case has also been dismissed.
Ms Cavanagh now seeks leave to bring a second appeal to this Court.

The events leading to the charges[5]

[5]The factual narrative is taken from the District court judgment, above n 3.

In January 2020, Ms Cavanagh moved into the spare room of a house in Christchurch that had been occupied by Mrs Jackson, who was 80. No formal tenancy agreement was signed but it was agreed rent would be $120 a week with the cost of electricity to be split.
When, in response to the COVID-19 pandemic, New Zealand moved to a Level 4 Lockdown, Ms Cavanagh went to live in Timaru. She stopped paying rent or electricity expenses for the Christchurch property.
When New Zealand moved back to Level 3, Ms Cavanagh returned to the Christchurch property but was asked to leave. She maintained that her tenancy continued and refused to do so. Mrs Jackson and her daughter telephoned the police.
After discussion, police gave Ms Cavanagh a verbal trespass order. They gave her the opportunity to collect her personal items but she declined and drove off.
After some time had passed, Ms Cavanagh went to the Christchurch Police Station and spoke to an officer who confirmed that the trespass notice was valid. Ms Cavanagh then left and drove back to the address and again asserted her rights to enter. Police were again…

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 Cavanagh v Police

Details

AGLC: Cavanagh v Police [2023] NZCA 57
Case: [2023] NZCA 57
Decision Date: 14 March 2023 at 2.15 pm

CaseChat Overview and Summary

The Court of Appeal dismissed an application for leave to bring a second appeal against a decision declining costs under the Costs in Criminal Cases Act 1967 (CCCA) to Ms Maria Elena Jean Cavanagh. Ms Cavanagh had been charged with trespass and resisting arrest, following a tenancy dispute, but the charges were dismissed. She sought indemnity or, alternatively, scale costs against police under the CCCA but her initial application was declined by the District Court and, on appeal, by the High Court. She now sought leave to bring a second appeal to the Court of Appeal. The court held that the application for leave must not be granted unless the appeal involved a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal was heard. The court held that the appeal did not satisfy either criterion. The matters raised by Ms Cavanagh were of great importance to her, but they arose from specific events that were particular to her and did not have any wider importance. The court also held that it was not reasonably arguable that the Court below was in error. The court concluded that there was no risk of miscarriage if the appeal was not heard. The application for leave to bring a second appeal was declined.

Orders