Cavanagh v Police - [2022] NZHC 2174

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-64

[2022] NZHC 2174

BETWEEN
MARIA ELENA JEAN CAVANAGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 25 August 2022

Appearances:

Appellant in person

G E R Alloway for Respondent

Judgment:

30 August 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 30 August 2022 at 9.45 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

CAVANAGH v NEW ZEALAND POLICE [2022] NZHC 2174 [30 August 2022]

Introduction

[1] The appellant, Maria Elena Jean Cavanagh, sought costs under the Costs in Criminal Cases Act 1967 (the Act) in the District Court following the dismissal of a charge of trespass and the withdrawal of a charge of resisting arrest.

[2] In the District Court, Ms Cavanagh claimed accommodation costs totalling approximately $4,300 as a result of not being allowed to return to the address from which she had been trespassed. She claimed legal aid costs for the prosecution totalling
$4,061.34. She also claimed fees relating to unreturned university books that remained at the address from which she was trespassed in the amount of $260.84 and travel costs for Court appearances of $100. The total sought was $8,680.64.

[3] In a decision dated 30 March 2022, Judge Gilbert declined to award costs.1 Ms Cavanagh now appeals that decision.

Factual background

[4] In late December 2019, or early January 2020, Ms Cavanagh moved into the spare room of a house in Christchurch that had been occupied by Margaret Jackson for the previous 18 years. Ms Jackson is 80 years old and, presumably, was seeking to generate extra income. The arrangement was informal, but rent was apparently agreed at $120 per week with electricity bills to be split. Ms Cavanagh rented the room for approximately three months until the start of the first COVID-19 lockdown commencing on 25 March 2020.

[5] During that week, it appears Ms Cavanagh decided to leave the address to live in Timaru. The reasons for the move are not agreed but Ms Cavanagh says Ms Jackson allowed her daughter to visit in breach of the COVID-19 lockdown rules and Ms Cavanagh did not want to be exposed to that risk. Approximately five weeks later, on 28 April, New Zealand moved from Alert Level 4 to 3. While she was in Timaru, Ms Cavanagh had not paid rent or expenses, although she says her rent was paid in advance, so one week’s rent would have been covered.

1 Police v Cavanagh [2022] NZDC 5549.

[6] On 29 April, Ms Cavanagh arrived back at the address but was told she was not welcome and was asked to leave. Instead that morning she was emailed an eviction notice. She then refused to leave, maintaining she had a tenancy. Shortly thereafter, Ms Jackson and her daughter called the police. At about 1.30 pm that day, police arrived and Constable Fossbender discussed matters with both parties. Statements from the officers who…

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 [2022] NZHC 2174
Case: [2022] NZHC 2174
Decision Date: 30 August 2022

CaseChat Overview and Summary

The appellant, Maria Elena Jean Cavanagh, appealed a decision of Judge Gilbert in the District Court, who declined to award her costs under the Costs in Criminal Cases Act 1967 (the Act) in the District Court following the dismissal of a charge of trespass and the withdrawal of a charge of resisting arrest. Cavanagh claimed accommodation costs, legal aid costs for the prosecution, fees relating to unreturned university books, and travel costs for court appearances, totalling $8,680.64. The District Court Judge found that the police acted in good faith in their dealings with Cavanagh and dismissed the application for costs. Cavanagh appealed the decision.

The High Court considered the legal principles applicable to awarding costs under the Act. The court emphasised that the touchstone for determining costs on criminal proceedings is that the Court is to do what it thinks right in the particular case. The court must consider all relevant circumstances, including whether the prosecution acted in good faith, whether they had sufficient evidence to support the conviction, whether they took proper steps to investigate any matter suggesting the defendant might not be guilty, whether the investigation was conducted in a reasonable and proper manner, and whether the defendant's conduct warranted a costs award.

The High Court found no error in the District Court Judge's exercise of discretion. The court found that the police acted in good faith throughout their dealings with Cavanagh, offering her temporary accommodation and assistance in removing her belongings, which she declined. The court also found that the police had good cause to believe Cavanagh was trespassed from the property and could not reasonably be criticised for laying a charge of trespass. Additionally, the court found that Cavanagh's uncooperative and obstructive behaviour contributed to her arrest and that the police acted in good faith by withdrawing the resisting arrest charge. The High Court concluded that the District Court Judge did not err in finding there was no basis upon which to order criminal costs in this case.

The appeal was dismissed.

Orders