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 attended suggest that Ms Cavanagh was difficult to deal with and aggressive to the point that she was warned about the possibility of being arrested for disorderly behaviour. Ms Cavanagh, however, said she was doing nothing more than asserting her legal rights as tenant to be at the property.

[7]        After discussion, the police issued Ms Cavanagh with a verbal trespass order. She was, however, given the opportunity to re-enter the address to retrieve any personal items such as clothing. It appears she declined and drove off.

[8]        Several hours later, Ms Cavanagh presented at Christchurch Police Station and spoke to an authorised officer. She remonstrated about the fact she had been trespassed from a property at which she considered she was lawfully entitled to reside. The officer discussed matters with a sergeant and undertook some further limited research, after which the police maintained she was validly trespassed and if she returned to the address she would be arrested. The police formal statements record that Ms Cavanagh then swore and said something like: “You will have to arrest me then.”

[9]        Ms Cavanagh then drove back to the address and again asserted her rights to enter. Ms Jackson called the police, who found Ms Cavanagh in an angry mood. The sergeant who attended again assessed matters. Ms Jackson expressed the view she was concerned for her safety. The police told Ms Cavanagh she could not stay at the address and Senior Sergeant Keer-Keer offered to take her to a location of her choice or to arrange some temporary accommodation for her. This offer was apparently repeated on a number of occasions. However, Ms Cavanagh, aggrieved by the situation, continued to assert she was entitled to be at the address. The police then undertook  what  was  described  as  their  “least  preferred  option”  and  arrested  Ms Cavanagh.

[10]      Ms Cavanagh accepts she was then wholly uncooperative. It took six police staff to lift Ms Cavanagh into the back of a police van to be transported to Christchurch Central  Police  Station.    According  to  police,  this  was  required  because  of    Ms Cavanagh’s actively uncooperative behaviour as she intended to make the arrest as difficult as possible, albeit without striking out or being violent. These difficulties were compounded by Ms Cavanagh’s size and, in light of medical issues she had told police about, their concerns as to the possibility of positional asphyxia.

[11]      Ms Canavagh was eventually lifted into the police van and taken to the station. She was charged with trespass and resisting arrest. She spent a night in the cells and says her treatment in the police station was unprofessional and dehumanising. However, it is clear from the evidence she was being intentionally and actively uncooperative during this period. Ms Cavanagh was bailed the next day with conditions, including not to go or be found within 100 metres of the address unless accompanied by police.

Procedural background

[12]      The matter then proceeded through the courts and was hampered by a number of delays. Some of the delay was caused by the fact Ms Cavanagh went through a number of lawyers and by COVID-related issues.

[13]      Eventually, almost a year after Ms Cavanagh’s first appearance, her counsel filed a pre-trial application under s 147 of the Criminal Procedure Act 2011 (CPA) for dismissal of the charges. This appears to have been indicated orally at a case review hearing or similar before Judge O’Driscoll.  The basis of the application was that   Ms Cavanagh was entitled to be at the address and therefore could not be validly trespassed, with the result the resisting arrest charge should also be dismissed as the arrest was only effected pursuant to an unsustainable charge.

[14]      On 18 November 2021, the dismissal application came before Judge Gilbert. He recorded he had queried with police whether it was in the public interest to proceed with the matter given Ms Cavanagh was a 50-year-old woman with no previous convictions whose low-level charges arose in the extraordinary context of the Level 4 lockdown, and a considerable period had since passed. After considering the matter

more closely, and receiving submissions from defence counsel, police did not oppose the dismissal of the trespass charge. The Judge granted the application to dismiss the trespass charge.

[15]      The Judge considered the resisting charge was more complicated because the police were executing their duty but acknowledged there was a difficulty in the underlying charge of trespass because of the dispute over whether there was an ongoing tenancy. In any event, given the underlying charge of trespass had been dismissed, the police considered there was no longer a public interest in prosecuting the resisting charge. The Judge viewed this as a pragmatic and appropriate concession and, while he considered the resisting charge could likely have been sustained in light of Ms Cavanagh’s uncooperative conduct, granted leave to the police to withdraw that charge under s 146 of the CPA.

[16]      In the interim, Ms Cavanagh had also made a complaint with the Independent Police Conduct Authority (IPCA) about her treatment by the police. Her complaints were dismissed in August 2020.

[17]      On 8 December 2021, Ms Cavanagh, through her then counsel, filed an application for costs against the Police on the basis she was successful “by dint of the wilful trespass charge being a legal nullity”.

District Court decision

[18]      On 30 March 2022, the costs application came before Judge Gilbert. The Judge noted the costs claimed in relation to accommodation and library books were clearly outside the scope of the Act. He considered the only costs that could conceivably be claimed were the legal aid costs.

[19]      The Judge found the police were not acting in bad faith but were doing their best in difficult circumstances to find a solution to what was clearly a problem. He observed the relationship between Ms Cavanagh and Ms Jackson was clearly dysfunctional and it was “not sustainable to expect … peaceful coexistence to occur

between [them] at that point”.2 The Judge rejected the suggestion it was realistic or tenable for the police to simply have walked away from the situation on the basis it was a civil dispute. Instead, he considered it would likely have created “further substantial difficulties”.3

[20]      The Judge found the police made genuine efforts to try to find a solution that would defuse the situation, and made good faith offers to Ms Cavanagh to find her temporary accommodation or relocate her. He acknowledged Ms Cavanagh genuinely felt  she  was  entitled  to  stay,  but  determined  the  ultimate  decision  to  arrest  Ms Cavanagh was due, in large part, to her own attitude and actions, which was calculated to make her arrest as difficult as possible.

[21]      Judge Gilbert found the police could not be criticised for making the wrong call as to whether Ms Cavanagh had a lawful basis for staying at the house. Indeed, the Judge noted he was himself unsure at the time as to the correct legal position and it was really on the basis of pragmatism and the lack of opposition from police that he was prepared to dismiss the charges. He noted police officers dealing with dynamic situations cannot be expected to always make the right call on technical legal points and what is important is that they approach situations in good faith. In the circumstances, the Judge considered there was sufficient evidence presented to police on the day to make the arrest and commence the prosecution.

[22]      Furthermore, the Judge found no deficiencies had been identified in the police investigation more broadly. He was not prepared to look behind the finding of the IPCA in the context of a costs application. The Judge observed Ms Cavanagh was clearly highly obstructive to police officers who were put in an invidious position and genuinely thought they had a basis to trespass her, and the resisting charge would likely have been sustained had the police not made the pragmatic concession to withdraw it.

[23]      The Judge therefore concluded this was not a case where an award of costs was justified and accordingly dismissed the application.

2      Police v Cavanagh, above n 1, at [34].

3 At [35].

Principles on appeal

[24]      An appeal against a decision on costs orders is governed by subpt 6 of pt 6 of the CPA. A person affected by a decision to make or refuse to make a costs order may appeal against the decision.4 The first appeal court may confirm, vary or set aside the decision, or make any other order considered appropriate.5

[25]      Under the Act, where a defendant is acquitted or a charge dismissed or withdrawn, the court has discretion to order a payment that it considers “just and reasonable” towards the costs of the defence.6 As an appeal against a decision made in the exercise of a discretion, the appellant bears the onus of demonstrating that an error of law or principle occurred, the Judge took account of irrelevant considerations, failed to take account of a relevant consideration or was plainly wrong.7

Submissions

Appellant’s submissions

[26]      Ms Cavanagh in her submissions referred to the trauma she experienced through being remanded in police custody overnight and the two years of court proceedings she has endured. Ms Cavanagh submitted she should not have incur the costs of the mistakes made by the police when she did nothing but assert her rights as a tenant. As a result of the police’s conduct, she submitted she incurred unnecessary costs and had nowhere to store her personal belongings until July 2020.

[27]      She said she left Ms Jackson’s property after the national lockdown was announced due to health concerns relating to alleged non-compliance by Ms Jackson with COVID-19 non-contact requirements. She submitted she had, at that point, been a tenant for 13 weeks and she considered an application needed to be filed with the Tenancy Tribunal for the tenancy to be terminated at such short notice. She said although she was emailed an eviction notice on 29 April 2020 she did not see it until

4      Criminal Procedure Act 2011, s 271.

5      Criminal Procedure Act, s 274.

6 Costs in Criminal Cases Act 1967, s 5(1).

7      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]. Harriman v Police [2015] NZCA 285 at [14].

she arrived in Christchurch because she had been travelling. She said police ignored her attempts to explain this situation to them.

[28]      Ms Cavanagh also attached a four-page document detailing her version of events, in particular her experience in police custody. She alleged one officer pulled her hair and insulted her. She also alleged officers’ handling of her left her with bruising, scratches and swelling across her body. She said she was not given anything to eat or drink for 12 hours. Ms Cavanagh provided notes from the Emergency Medicine Department of Christchurch Hospital dated 1 May 2020, a day after the incident, which records that Ms Cavanagh reported having her hands restrained behind her body and being dragged along the ground. She was recorded as having bruising to her upper arms and abrasions to her abdomen and wrists. A letter from her General Practitioner dated 12 May 2020 confirmed she suffered from a number of pre-existing medical conditions.

[29]      I note the IPCA report dismissed each of Ms Cavanagh’s complaints of ill-treatment by police.

Respondent’s submissions

[30]      For the Police, Mr Alloway acknowledged Ms Cavanagh’s actions were fuelled by a genuine sense of grievance and that the ensuing legal process has been very difficult for her. However, he submitted the Judge was to correct to find there was no basis upon which to order criminal costs in this case.

[31]      Mr Alloway endorsed the Judge’s findings that police acted in good faith in their dealings with Ms Cavanagh and were doing their best in difficult circumstances to find a solution to the problem. He submitted the Judge was correct to find that police could not be criticised for possibly being incorrect as to whether Ms Cavanagh had a lawful basis for staying at the house when it boiled down to a technical legal interpretation of the Residential Tenancies Act 1986. Mr Alloway maintained police acted in good faith in exercising their powers, which is all that can be expected of them. He agreed with the Judge’s findings that Ms Cavanagh’s conduct significantly contributed to what occurred and the police’s actions were reasonable and proper.  Mr Alloway submitted there was sufficient evidence to support a conviction for the

resisting arrest charge and its withdrawal was the result of a pragmatic decision by police.

Analysis

The law

[32]      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.8 Costs include any expenses properly incurred by a party in carrying on a defence or in making or defending an appeal.9

[33]      There is no presumption for or against granting costs in any case.10 Costs will not be awarded or refused solely on the basis of the dismissal of charges or charges being properly brought.11

[34]      When determining whether or not to grant a costs award under the Act and, if so, the amount of any award, the court must have regard to all relevant circumstances, and in particular:12

(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 charge was dismissed on a technical point:

8 Costs in Criminal Cases Act, s 5(1).

9      Section 2.

10     Section 5(3).

11     Section 5(4)-(5).

12     Section 5(2).

(f)whether the charge 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.

[35]      In R v Lyttle, the Court of Appeal set out a number of principles arising from cases dealing with awards under s 5(2) of the Act:13

(a)While success in the proceeding is a jurisdictional prerequisite to an application, the fact of success is neutral when the discretion whether or not to award costs is exercised.

(b)The court has a broad discretion when determining whether or not to make an award under the [Act].

(c)The seven matters set out in s 5(2), or those that are relevant, are to be considered. The factors set out in s 5(2) are also qualified by the words “[w]ithout limiting … the court’s discretion”, so regard should be had to all relevant circumstances, and not simply those set out in s 5(2). There is a danger in narrowing relevant considerations by reference to s 5(2) or in trying to fit particular circumstances into one of the factors listed in s 5(2).

(d)The matters set out in s 5(2)(a) to (e) refer in a general way to the propriety, conduct and strength of the prosecution case. Affirmative answers might tend to inhibit or weigh against an award of costs or diminish the quantum of the same.

(e)The terms “proper steps” and “in a reasonable and proper manner” in s 5(2)(c) and (d) mean something less than would be adopted by a reasonably prudent prosecutorial authority. It is a difficult burden to surmount.

(f)The fact that a prima facie case is established at a preliminary hearing, or that a judge refuses a discharge, is likely to support the conclusion that there was sufficient evidence at the commencement of the proceeding.

(g)The matters set out in s 5(2)(g) are concerned with behaviour justifying an award, and not with behaviour disqualifying an award.

(h)Costs are not to be awarded only because the defendant has been acquitted. An applicant must be able to point to some relevant circumstances, either within the criteria, or otherwise, that justify an award.

13     R v Lyttle [2022] NZCA 52 at [18], citing Banks v R [2016] NZHC 1596 at [41].

[36]Also, in Blackwood v R, the Court of Appeal explained:14

[9]  Unlike civil proceedings, costs in criminal cases do not follow the   event and are seldom awarded. This is because criminal proceedings are pursued by the prosecuting agency in the public interest. Costs are not usually awarded in criminal cases unless the prosecution has acted improperly or unreasonably in the investigation or prosecution of the charge. Nevertheless, there is no presumption for or against an award of costs. The mere fact that the prosecution was properly brought and continued does not create a presumption that costs to a defendant should be refused.

(footnotes omitted)

[37]      Simply put, the touchstone for determining costs on criminal proceedings is that the Court is to do what it thinks right in the particular case.15

Application to this case

[38]      At the outset, I acknowledge that Ms Cavanagh’s actions were underpinned by a genuine sense of grievance for what she perceived was unjustified conduct on behalf of the Police. It is clear her experience of being arrested and remanded overnight in police custody was stressful and unpleasant for her. However, having considered all the relevant circumstances, I do not consider the District Court Judge erred in concluding this was not a case where an award of costs was justified.

[39]      I also note as an aside, the only costs which can be claimed are those incurred in defending the charges. The consequent losses Ms Cavanagh claims because she had to find alternative, more expensive accommodation and because she left personal property at Ms Jackson’s house are not “costs of [her] defence” and cannot be claimed.

[40]      The evidence supports the Judge’s primary finding that the police acted in good faith throughout their dealings with Ms Cavanagh. While this factor is not determinative, as prosecutions by the state are expected to be bona fide,16 it is a matter going towards the propriety and overall conduct of the prosecution case.

14     Blackwood v R [2020] NZCA 504.

15     Cavanagh v Police [2013] NZHC 2232 at [20], affirming R v Margaritis HC Christchurch T66/88, 14 July 1989.

16     Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CC5.09], citing

R v CD [1976] 1 NZLR 436 (SC) at 437.

[41]      At the time the decision was made to arrest and charge Ms Cavanagh with trespass, police had good cause to believe Ms Jackson was the landlord of the address and Ms Cavanagh was not allowed to reside there. They were aware Ms Cavanagh had left the address some five weeks earlier and was now unwanted at the address because of unpaid board and the apparent abandonment of her room. She had then been asked to leave the address by Ms Jackson, a vulnerable 80-year-old woman, but had refused to do so. In the circumstances, it was not unreasonable for the police to advise Ms Cavanagh she was trespassed from the property.

[42]      Importantly, the police did their best to ameliorate the difficulties this placed Ms Cavanagh in. They offered her temporary accommodation or to relocate her, and offered assistance in removing her personal belongings, but this assistance was declined. While at the hearing Ms Cavanagh says she now understands the accommodation offered was in the police cell, that is inconsistent with the police statements of evidence and I do not accept it. Overall, I am satisfied the Judge was entitled to view their efforts to defuse and resolve the situation as “genuine”.

[43]      I also consider the Judge was correct to find that the police could not reasonably be criticised for laying a charge of trespass on the basis Ms Cavanagh was not permitted to stay at the house. The Judge described the legal position as “nuanced”, although I consider Ms Cavanagh’s assumption that she was protected by the Residential Tenancies Act 1986 was plainly not correct. Section 5 of that Act provides that the Act does not apply in a range of specified cases. That includes where, as here, “the premises, not being a boarding house, continue to be used, during the tenancy, principally as a place of residence by the landlord or the owner of the premises or by any member of the landlord’s or owner’s family”.17 Ms Cavanagh was a boarder in a private home and her entitlement to be there depended on what was agreed with the owner. In any event, after receiving defence submissions, police did not oppose the trespass charge being dismissed.

[44]      In relation to the charge of resisting arrest, I agree that Ms Cavanagh’s own conduct significantly contributed to her arrest. Her conduct was clearly calculated to

17 Residential Tenancies Act 1986, s 5(1)(n).

make it as difficult as possible for the officers to execute their duty. I note the Court of Appeal has clarified that the matters set out in s 5(2)(g) of the Act are concerned with behaviour justifying an award, and not with behaviour disqualifying an award.18 However, I am not satisfied any error arose in the Judge taking into account as a relevant circumstance the uncooperative and obstructive behaviour of Ms Cavanagh that led directly to her being charged with resisting arrest.

[45]      The police also agreed to withdraw the resisting arrest charge in light of public interest considerations, including the passage of time, Ms Cavanagh’s clean record and the dismissal of the trespass charge. Their concessions were reasonable and proper, and demonstrate they continued to act in good faith throughout the course of the prosecution.

[46]      In any event, I am satisfied the Judge did not err in finding there was sufficient evidence to support a conviction on that charge. The words “in the execution of his duty” in s 23(a) of the Summary Offences Act 1981 simply imply that the constable must have been acting bona fide in the exercise of the powers vested in him or her as a constable.19 It is clear Ms Cavanagh intentionally obstructed a constable in the execution of his duties. The fact she held a sincere belief she was entitled to stay at the property and chose to debate the validity of the officers’ decision to arrest her for trespass does not make her disobedience any less intentional.20 That the underlying trespass charge was eventually dismissed does not vitiate the validity of the arrest, as I am satisfied the arresting officers had good cause to suspect Ms Cavanagh had committed the trespass offence on the basis explained above.21 This was therefore not a case of a person ignoring a demand a constable was not entitled to insist on.22

[47]      In summary, the Judge’s observations that police were “doing their best in difficult circumstances to try and find a solution to what was clearly a problem” were

18     R v Lyttle, above n 12, at [18(g)].

19     Spencer v Police (1989) 5 CRNZ 145 (HC) at 147.

20     Minto v Police (1991) 7 CRNZ 38 (HC) at 42.

21 Trespass under ss 4(4) and 11(2)(a) of the Trespass Act 1980 is punishable by up to three months’ imprisonment. See the arrest power for an imprisonable offence in s 315(2)(b) of the Crimes Act 1961.

22 Sneller v Police [2007] NZAR 405 (HC).

apt.23 I do not consider there was any discernible error in the exercise of the broad discretion afforded to the Judge.

Conclusion

[48]The appeal is dismissed.

Solicitors:

Raymond Donnelly & Co., Christchurch

Copy To:
Ms Cavanagh

23     Police v Cavanagh, above n 1, at [32].