Cavanagh v Police

[2013] NZHC 2332

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2013-425-000009 [2013] NZHC 2332

JAMES CAVANAGH Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:                   26 August 2013

Counsel:                  P B Redpath for Appellant

E L Higbee for Respondent

Judgment:                6 September 2013

JUDGMENT OF PANCKHURST J

A costs application

[1]      Mr  Cavanagh  appeals  against  a  decision  of  Justices  of  the  Peace  who declined to award costs to him following the dismissal of a careless use charge.[1] In the District Court costs and disbursements in the sum of $20,590.04 were sought pursuant to the relevant provisions in the Costs in Criminal Cases Act 1967.

[1] Cavanagh v Police DC Gore CRI-2008-017-000230, 20 February 2013.

[2]      However, the Justices concluded that there should be no award, stating:

... the application for costs fails to meet the standard required to justify any such award, and is therefore dismissed.

Mr Redpath argued that the reasons given for refusing costs were plainly wrong, such that it was appropriate for this Court to reconsider the question afresh.  Counsel

submitted that upon a correct application of the statutory criteria a substantial award was justified.

An outline of the case

[3]      After 3.00 am on 19 April 2008 the appellant was driving a Fonterra milk tanker and trailer on McCall Road, Edendale, Southland.  This is a gravel road.  The weather conditions were poor as it was hailing and windy.

[4]      As the appellant negotiated a moderate left hand bend he felt a heavy jolt and his truck came to a holt.  The tanker was jack-knifed across the road pointed to the left hand side, with the milk tank trailer still attached, but turned on its side and off the road.  In fact the trailer was part way down a bank and milk was leaking from the tanker into the nearby Mataura River.  The appellant called his base and a response vehicle was dispatched.  It arrived at the scene about 20 minutes later, followed soon after by a police constable.

[5]      A few weeks later a charge of careless use was laid.  The case was heard in the District Court at Gore over three days on 24, 25 June and 6 August 2009.  The police called four witnesses, including an investigator from the serious crash unit who gave expert evidence concerning the cause of the accident.  The defence also called  four witnesses,  including the appellant  and  an  accident  investigator  from Auckland.

[6]      On 6 October 2009 the Justices delivered a written decision in which they extensively reviewed the evidence and in brief conclusions decided that the charge was not proved to the required standard.[2]

[2] Police v Cavanagh DC Gore CRI-2008-017-000230, 6 October 2009.

[7]      In May 2011 the appellant filed an application seeking an award of costs under the Act.  This was opposed by the police in written submissions filed a few

months later.

[8]      On  20  February  2013  the  Justices  delivered  another  written  decision dismissing the costs application.  This, of course, prompted the filing of the present appeal.

Some problems with the decisions

[9]      The case was contested on the basis that there was a mismatch between the dual tyre configuration on the two drive axles to the truck, as compared to the single tyres fitted to the four axle trailer.  The defence expert was of the opinion that the dual tyre system provided better traction because of a higher “co-efficient of friction at the road tyre interface”, whereas the single tyre system on the trailer had discernibly less friction and traction.  This, his evidence continued, caused the trailer to slide across the road surface, hit the grass verge, at which the trailer rolled to the right and down the bank towards the river.

[10]     Although the Justices’ decision was lengthy (27 pages) it largely comprised a review of the evidence, and cross-examination of each of the witnesses.  The final few pages contained findings, as well as this observation:[3]

[3] At 26.

We have heard a lot of very technical data from Constable Patterson for the police and Mr Neil Mackay for the defence with regard to the efficiency or otherwise of the tyres on the trailer in question. As previously stated, we are not qualified to analyse the technical aspects of the findings of either of those experts, and we will refrain from so doing.

The Justices then found that the case was not proved beyond reasonable doubt, indeed that the best evidence was that of an eye witness who minutes before the crash observed the appellant “driving cautiously down the middle of the gravel road

...”.

[11]     Otherwise there were findings that:   other Fonterra drivers had expressed concern about the performance of the single trailer tyres on gravel roads, an internal investigation carried out by Fonterra concluded that speed was not a factor in the accident, the in-Court photographic evidence was somewhat confusing because there was no evidence corroborative of the trailer sliding to the right hand side, it appeared

the road area had been contaminated by response vehicles, doubt had been cast on

the quality of the maintenance operation at the Fonterra Edendale factory, and that it

would hardly have been in the appellant’s best interests to drive in a careless manner.

[12]     As  will  become  evident,  these  findings  do  not  adequately  address  the substance of the two competing cases.  Moreover, the Justices’ observation that they were not qualified to analyse the expert evidence and would refrain from doing so was an abdication of responsibility.  This is not a criticism of the Justices.  It was not appropriate that they were required to hear a three day case involving conflicting and technical  expert  evidence.    A hearing  before  a  Judge  was  sought,  but  did  not eventuate on account of resourcing issues.

[13]     The costs decision is also problematic.  The written decision referred to the criteria under the Act and the Justices then said:

it was appropriate that the prosecution should investigate what appeared to them to be the third of a series of mishaps involving milk tankers in this region ... ,

the matter escalated through the decision of the union representing Mr

Cavanagh to engage an expert to look into the matter ... ,

what should have been a simple one day careless use hearing spread into three days as a result,

the costs in relation to [the expert’s] services, were borne by the union involved, and

the law ... states that there is no presumption for or against costs, and costs do not follow automatically on acquittal ... .

The conclusion that the application was dismissed immediately followed.

[14]     Mr Redpath presented detailed submissions directed to the costs decision suggesting that relevant criteria had not been considered, while irrelevant factors had been brought to account or misunderstood, and that there was an “essential failure to give reasons”.  These submissions are soundly based and I am in no doubt that this discretionary  decision  cannot  stand.    This  was  likewise  a  reasonably  complex decision best suited to determination by a Judge.

[15]     In the result there is no option but for me to consider the costs application afresh.   This is no simple task, because the limited findings made following the substantive hearing make application of the statutory criteria to the circumstances of this case difficult.   In  particular, it is not clear why the charge was  dismissed, although it can at least be said that the Justices were left in doubt as to proof of the prosecution case.  I must do the best I can, but with this consideration in mind.

The required approach

[16]     I think it is helpful to start by reference to the difference between civil and criminal proceedings.   In the former, costs ordinarily follow the event; so that the successful litigant receives a contribution towards legal costs.   There is no such presumption in criminal cases.  The often quoted observation of Devlin LJ explains why this is so:[4]

A plaintiff brings an action for his own ends and to benefit himself; it is therefore just that if he loses he should pay the costs.  A prosecutor brings proceedings in the public interest, and so should be treated more tenderly.

[4] Berry v British Transport Commission [1962] 1 QB 306 at 327.

[17]     This public policy consideration is reflected in the principles prescribed in the

Act. The first principle is that:[5]

The Court may, subject to any regulations made under this Act, order that [a successful defendant] be paid such sum as it thinks just and reasonable towards the cost of [his/her] defence.

[5] Section 5(1).

[18]     Section 5(2) “without limiting or affecting the court’s discretion” provides that in deciding whether to award costs, and in what amount, regard shall be had “to all relevant circumstances”, and “in particular”:

(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.

Subsection (3) provides that there is no presumption for or against granting costs; while subsection (4) provides that a successful defendant should not be granted costs “by reason only of [that] fact ...”.

[19]     The seven criteria have excited a level of judicial disagreement, and debate, as to their interpretation and effect.   The utility of this is questionable.   While section 5(2) helpfully identifies some potential qualifying and disqualifying factors it expressly does so without limiting the Courts discretion; and the section requires that regard shall be had to all relevant circumstances (not just the statutory ones).

[20]     To my mind, it is hard to improve upon the approach advocated by Hardie

Boys J in 1989:[6]

[6] R v Margaritis HC Christchurch T66/88, 14 July 1989.

Section 5(2) sets out seven considerations to which the Court is to have regard, but it makes it clear that they are not intended to be restrictive of the wide discretion which is given to the Court in respect both of whether costs should be awarded and if so in what sum. It also states that there is no presumption for or against granting costs; that an acquittal is not of itself sufficient reason for an order; nor is the fact that the proceedings were properly brought and continued of itself a ground for refusing one. All this really means is that the Court is to do what it thinks right in the particular case.

Evaluation of this case

[21]     In light of the submissions advanced by counsel I consider there are four aspects which require consideration in deciding whether it is “just and reasonable that the appellant be paid a sum towards the costs of his defence”. They are:

(i)       Whether there was sufficient evidence to support a conviction at the outset,

(ii)      Whether the police investigation was reasonable and proper,

(iii)     Whether the charge was dismissed because the appellant established he was not guilty,

(iv)     Whether   the   behaviour   of   the   appellant   was   entitling,   or disqualifying, in relation to an award of costs.

These aspects will determine both whether to award costs and, if so, the appropriate amount.

Was there sufficient evidence to support a conviction at the outset?

[22]     I am satisfied that when the charge was laid in early May 2008 there was sufficient evidence to support a conviction for careless use.   Mr Cavanagh was interviewed a few days after the accident.  He gave an unremarkable account of the relevant events.  When asked what caused the accident, he summarised matters in this way:

A combination of the following.   A milk volume of 11,000 litres in an

18,000 litre tank causing huge sideways slosh.   The extremely wide tyres fitted to the trailer.  The tyres are like driving on marbles as soon as you get

out of the worn tyre track on the road.  The weather conditions with the hail

sitting  on  the  road  compounded  these  issues.    I  believe  the  following sequence of events has caused the incident. As I rounded the corner the milk

load shifted to the outside and the hail on the road combined with the wide

tyres and loose gravel caused the trailer to move sideways until it hit the road edge and rolled over.

[23]     I note the appellant was very familiar with the truck and trailer.   He had driven about 50,000 kilometres in the vehicle, being about one third of the total kilometres it had travelled to the time of the accident.   This truck and trailer unit operated “twenty-four seven” over three shifts per day with three designated drivers.

[24]     On the basis of the appellant’s own account there was no unusual event or circumstance which explained the loss of control and the overturning of the milk tanker.  The appellant appreciated the driving conditions, knew the volume of milk in the trailer tank and the handling characteristics of the truck and trailer.  Accordingly, the logical inference was that in rounding the corner he was driving too fast for the known conditions.

[25]     Mr Redpath relied on the fact that the investigating constable recommended against a prosecution, but was overruled by his superiors.  For the reasons given I think there is nothing in this point.   Reliance was also placed on the fact that a defence  witness  observed  the  appellant  as  he  drove  off  a  sealed  highway onto McCall Road and considered that he was driving appropriately for the conditions. The witness was another Fonterra driver heading home at the end of his shift, but proceeding in the opposite direction to Mr Cavanagh.  Although the Justices relied on this evidence, I doubt the wisdom of doing so given that Mr Cavanagh drove about 1.5 kilometres on McCall Road to the north-east of the intersection before he encountered the left hand corner at which the incident occurred.  It was the manner of driving at this point which was in issue.

Was the police investigation reasonable and proper?

[26]     The contention that the police investigation was not adequate was central to the appellant’s argument.    Mr Redpath challenged several aspects of the investigation, including the adequacy of the scene examination, continuing with the prosecution when a Fonterra internal investigation dismissed speed as a causative factor, not following up the issue of a mismatch between tyre performance when this was raised at interview, not obtaining data from the truck “black box”, not investigating earlier incidents in which Fonterra truck trailer units had come to grief in not dissimilar circumstances, conducting an examination of the subject vehicle several months after the event and, most importantly, not reconsidering the decision to prosecute when the defence disclosed its expert’s report in February 2009.  The report was tabled by counsel, accompanied by a request to reconsider and a warning that costs would be sought if the charge was successfully defended.

[27]     As to the scene investigation, the investigating constable attended the scene soon after the event.  Before his arrival a Fonterra response vehicle had reached the scene, but it was not until daylight that the trailer was retrieved from down the bank. This, I assume, was a priority given that milk had leaked into the Mataura River. Some  photographs  were  taken  of  the  scene  including  the  road  surface  prior  to retrieval of the trailer, albeit probably by Fonterra employees.  The photograph of the road is notable for the fact that there are no obvious sideways skid marks on the road surface, nor for that matter signs of debris on the outer right hand side of the trailer wheels which are in view in the photograph.  No doubt greater resources could have been committed to the scene investigation, but it must be borne in mind this was a non-injury accident which resulted in a relatively minor charge.

[28]     It  emerged  in  cross-examination  of a Fonterra  witness  that  the company conducted an internal investigation and concluded that speed was not a factor in the incident, but the basis for this conclusion is not apparent from the report itself.  The truck driven by the appellant was modern and had sophisticated computer systems, but any retained data was not accessed despite a request to do so from Mr Redpath in January 2009.  There is no evidence, however, concerning what data could have been obtained and accordingly the value of any such inquiry is a matter of speculation. Similarly the belated examination of the truck seems to be a speculation, given that the defence case was based on the expert’s evidence that the truck/tyre mismatch was the cause of the accident.

[29]     I therefore turn to this aspect, including the circumstance that Mr Cavanagh made mention of the trailer tyres at interview a few days after the event.  The case chronology is relevant.  After the accident in April 2008 and the laying of the charge the following month there was something of a lull.  In July 2008 Mr Cavanagh was dismissed from Fonterra’s employment.   In October the defence expert, Mr Neil Mackay, provided an initial assessment to defence counsel to the effect that further investigation into the circumstances of the accident was warranted.

[30]     At   some   point   the   Dairy   Workers’   Union   became   involved,   and commissioned a full report from Mr Mackay extending to simulation testing of tyres. Mr Mackay visited the scene in Southland and subsequently undertook tyre friction

testing  on  a  comparable  gravel  road  in  the  North  Island.    In  the  new  year  he furnished a report in which he concluded that the effective cause of the accident was what I have termed the mismatch.   By reference to a mathematical formulae Mr Mackay concluded that the milk truck could negotiate the subject bend at a speed between 37 to 49 kilometres per hour, whereas the trailer would “slide-out of the turn” at a speed between 29 to 43 kilometres per hour because “the co-efficient of friction at the road tyre interface for the trailer was less than that of the truck”.

[31]     After    this    report    was    provided    to    the    police    in    early    2009

Constable Patterson, the head of the Southland Serious Crash Unit, conducted an investigation in light of Mr Mackay’s report.   He made inquiries concerning how prevalent the trailer tyres were in New Zealand, and concluded that there was no evidence of a pattern of slide-out failure in relation to the tyres.   He ultimately adhered to the police view that a failure to drive at a speed appropriate to the conditions was the effective cause of the accident.

[32]     With regard to earlier incidents involving Fonterra truck and trailer units, this was explored in the District Court, particularly with a union delegate called as a defence witness.  There had been three previous incidents involving trailer roll-over or instability.  However, the circumstances were variable, including that some of the incidents had occurred on sealed road surfaces as opposed to gravel.  This evidence served to demonstrate how Mr Cavanagh’s case assumed the proportions that it did, including what the Justices termed an escalation through the union’s involvement and engagement of the expert.

[33]     I think it is apparent from the District Court record that there were significant employment issues at stake in this case, and this resulted in this careless use charge being contested on a very wide ranging basis.  In short, tensions that existed between the employer and the union occasioned an approach to the defence of this case which was clearly out of the ordinary.

[34]     Was the police investigation reasonable and proper?  I do not accept that the investigation  was  deficient  in  the  early  stages.    The  more  difficult  question  is whether  the  decision  to  continue  with  the  prosecution  was  reasonable  when

Mr Mackay’s report was disclosed to the police in February 2009, coupled with the request to reconsider matters.  The expert report revealed that the major focus of the defence case was upon the tyre mismatch. This leads to the next aspect.

Did the appellant establish he was not guilty?

[35]     This issue is elusive.  The Justices refrained from grappling with the expert evidence.  Their decision gives no clue as to the impression they formed in relation to the expert witnesses.

[36]     Rather, they were influenced by various matters (see [11]), at least one of which seems to me to be at odds with Mr Mackay’s opinion as to the cause of the accident.  This is the absence of slide marks on the road surface to the point where the trailer hit the verge and rolled.  Otherwise these factors are an odd mix, although essentially favourable to the appellant.

[37]     I doubt that there is a basis for the conclusion that Mr Cavanagh established he was not guilty of the offence.   On my own evaluation of Mr Mackay’s expert evidence it does not positively establish an absence of carelessness on the driver’s part.  Taking this evidence at face value it established a mismatch, which rendered the trailer vulnerable to sideways slide at a slightly lower speed than the truck itself. Put at its highest the evidence identified the existence of a handling vulnerability in relation to this truck and trailer unit, but this begs the question whether a prudent driver of this type of vehicle should be excused for losing control of the trailer on a moderate bend.

[38]     I think it most likely that the Justices dismissed the charge because they were left in reasonable doubt.  This is understandable, but the case was not clear-cut by any means.

Is Mr Cavanagh’s behaviour relevant to costs?

[39]     I can see nothing disqualifying in relation to the appellant’s response to the charge.  He co-operated at interview, and subsequently accepted advice to reveal the basis  of  the  defence  well  in  advance  of  the  hearing.    Although  s  23  of  the

Criminal Disclosure  Act  2008  did  not  apply,7    this  would  have  exceeded  his obligations under the section.  Mr Cavanagh also gave evidence in the District Court and no criticism can be made of his behaviour in that regard either.

Conclusions

[40]     The total amount sought is the sum of $20,590.04. This represents $11,732 in legal fees, being about 60% of the actual legal fees incurred.   The other major component  is  $8,358,  being the  costs  and  disbursements  incurred  in  relation  to Mr Mackay’s appearance as an expert witness and his provision of an initial and final reports, although the union apparently met some part of the report expense as well.

[41]     The sum claimed is not as per the scale in the Costs in Criminal Cases Regulations 1987.   However, Mr Redpath relied upon s 13(3) of the Act, which enables payment of costs in excess of the scale if “the special difficulty, complexity, or importance of the case” makes payment of greater costs desirable.  I am satisfied that this test is met essentially on account of the technical nature of the expert evidence required to mount a successful defence, albeit to a relatively minor traffic offence.

[42]     The more difficult question is whether this is a case for an award of costs.  I am persuaded that some contribution to Mr Cavanagh’s costs is just and reasonable. Mr Cavanagh’s behaviour in relation to the prosecution was not disqualifying.   I think he was acquitted because the expert evidence led by the defence raised a reasonable doubt.  This evidence was tabled well in advance of the hearing, but not responded to by the police in a particularly active manner.  That probably reflected the nature of the charge.  In the end result, the expert evidence prevailed, at least to the extent that a reasonable doubt was raised.

[43]     In all the circumstances I see this as a marginal case in relation to costs.  Only a modest award is justified in the sum of $5,000 payable under s 7(1) of the Act as

7      The Act only applied to criminal proceedings commenced on or after 29 June 2009.

opposed to subsection (2).  This sum is intended as a partial contribution towards the amount claimed for both fees and disbursements.

Solicitors:

P B Redpath, Invercargill

E L Higbee, Preston Russell Law, Invercargill