Commissioner of Police v Apanui
[2024] NZCA 307
•10 July 2024 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA748/2023 [2024] NZCA 307 |
| BETWEEN | COMMISSIONER OF POLICE |
| AND | EDMOND TE RAUPO APANUI |
| Hearing: | 18 June 2024 |
Court: | Cooke, Venning and van Bohemen JJ |
Counsel: | Z R Johnston and O A Boivin for Appellant |
Judgment: | 10 July 2024 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BWe set aside the costs order made in the District Court. In substitution, we award costs of $15,000 against the Commissioner of Police to be paid to the respondent.
CWe make no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by van Bohemen J)
The Commissioner of Police appeals a costs order of $34,240.75 made by Judge P Winter in the District Court at Auckland in favour of Edmond Apanui (the Costs Order).[1] The Costs Order was made under s 364 of the Criminal Procedure Act 2011 (the CPA) following Mr Apanui’s release from pre-trial custodial detention upon the dismissal of a charge of arson after the police elected not to offer any evidence.
[1]Apanui v Commissioner of Police [2023] NZDC 24918 [Judgment under appeal].
The Commissioner accepts an award of costs was justified but contends that an award calculated by reference to the time Mr Apanui spent in pre-trial detention is outside the scope of the CPA and that the Costs Order was excessive. The Commissioner also says the Costs Order should not have included a component to meet Mr Apanui’s costs in making the application. The Commissioner seeks a substituted costs order in the vicinity of $15,000.
Relevant background
Massey fire
On 23 November 2020, a fire broke out at an address in Massey, Auckland (the Massey fire). Mr Apanui was living at that address with Patrick Sylva and one other flatmate. Fire investigators determined the fire began from the deliberate lighting of clothes and other items in the living room with an incendiary substance.
On 24 November 2020, Mr Apanui was arrested and charged with arson endangering life. He was remanded in custody. The case against Mr Apanui was circumstantial and was based in part on the evidence of Mr Sylva, who said he had been in the bath when the fire started.
Mr Apanui denied the charge and pleaded not guilty on 21 December 2020.
Because of delay by Detective Constable Dhillon, the officer in charge of the Massey fire investigation, swabs taken from the hands of Mr Apanui and Mr Sylva on 24 November 2020 were not sent for analysis by the Institute of Environmental Science and Research (ESR) until 29 June 2021. No ignitable fluid residues were detected on the swabs. However, the ESR report noted that result may have been due to any accelerant evaporating from the swabs because of the delay prior to analysis.
Henderson fire
Following the Massey fire, Mr Sylva rented a room in a boarding house in Henderson owned by the same landlord as had owned the Massey address.
On 16 February 2022, a suspicious fire started in Mr Sylva’s room causing considerable damage to the building (the Henderson fire). The landlord told the fire officer in charge at the scene that Mr Sylva had previously been resident at the Massey address, where a deliberate fire had also been started.
A short time later, possibly on the same day, Detective Elima, the officer in charge of the Henderson fire investigation, mentioned to Detective Constable Dhillon, in the course of a casual conversation at Henderson Police Station, that Mr Sylva was a suspect in the Henderson fire. Neither officer recorded the fact or substance of the conversation in their notebooks or on police files. Detective Constable Dhillon took no action as a consequence of the conversation, which he later did not recall.
On 19 May 2022, following receipt of a fire investigation report which concluded that it was not possible to determine whether the Henderson fire had been deliberately lit or not, the police investigation into the Henderson fire was closed.
In October 2022, Detective Sergeant Mead informed Detective Constable Dhillon that, on 23 June 2022, he had undertaken a National Intelligence Application (NIA) search enquiry in respect of Mr Sylva which had recorded Mr Sylva’s presence at both fires. Following that conversation, Detective Constable Dhillon conducted a further NIA search in respect of Mr Sylva which confirmed Mr Sylva had been investigated in respect of the Henderson fire since 16 February 2022.
On 17 November 2022, after Detective Constable Dhillon had obtained formal access to the Henderson fire investigation file, Crown counsel advised Detective Constable Dhillon to urgently disclose all relevant documents in relation to the Henderson fire to counsel for Mr Apanui.
On 25 November 2022, the Crown advised the District Court registry that it intended to offer no evidence against Mr Apanui, given its appreciation of Mr Sylva’s involvement in both fires.
On 28 November 2022, the arson charge against Mr Apanui was formally dismissed under s 147 of the CPA.
Costs application
On 3 August 2023, Mr Apanui applied for a costs order under s 364 of the CPA on the grounds that there had been a significant procedural failure by police in failing to comply with the obligations under the Criminal Disclosure Act 2008.
Mr Apanui sought a costs award of $80,640.75 comprising:[2]
(a)$75,000 for personal costs incurred by Mr Apanui for each day spent in custody from the date of the Henderson fire to the date his arson charge was dismissed; and
(b)$5,640.75 for Mr Apanui’s legal costs in preparing the costs application.
Judgment under appeal
[2]At [18]–[19]. Mr Apanui initially also sought costs of $10,000 to be paid to the Ministry of Justice (Legal Aid Section) as a punitive response to the breach of disclosure obligations, however, following advice from the Ministry that it did not seek to be involved, Mr Apanui did not pursue that head of his application.
In his judgment dated 13 November 2023, Judge Winter recorded that the Commissioner accepted that some costs were payable to Mr Apanui but that the parties disagreed on quantum.[3]
[3]At [21].
The Judge noted that costs orders under s 364 of the CPA are limited to breaches of the CPA and the Criminal Disclosure Act and any rules and regulations made under that legislation.[4] The Judge observed that costs are payable under s 364(2) of the CPA where:[5]
(a)There has been a procedural failure (as defined in 364(1));
(b)The procedural failure occurred in the course of a prosecution;
(c)The Court is satisfied the failure is significant; and
(d)The Court is satisfied that there is no reasonable excuse for that failure.
[4]At [23].
[5]At [23].
The Judge considered Mr Apanui’s reference to the Compensation Guidelines for Wrongful Conviction and Detention adopted by Cabinet on 28 February 2023 (the Compensation Guidelines) and noted that Mr Apanui did not meet the preconditions of an application under those guidelines of a wrongful conviction and a sentence of imprisonment.[6] The Judge distinguished costs awards made under s 364 of the CPA from awards made under the Compensation Guidelines, observing:[7]
[29] I am not aware of any body of jurisprudence that exists in respect of these compensatory payment decisions, which are entirely at the discretion of the Cabinet. Such payments are only made by Cabinet following Cabinet's acceptance of advice provided to it by the Minister of Justice, to do so and in what sum. Further, the Guidelines do not require that these payments must be “just and reasonable”, which is a mandatory requirement under s 364(3). The Guidelines are not derived from statute. Cabinet therefore, is not exercising a judicial discretion conferred by the statutory provisions and strict legal principles. Cabinet relying on the ministerial advice it receives, need only apply the fixed monetary amounts set out in the Guidelines. There is no right of appeal against any assessment or a decision made in respect of an application brought under the Guidelines.
[6]Ministry of Justice Compensation Guidelines for Wrongful Conviction and Detention (Ministry of Justice, 28 February 2023) at [13].
[7]Footnote omitted.
The Judge had regard to recent decisions of this Court in Bublitz v R and R v Lyttle and observed that, although orders made under s 364 “may have some potential compensatory effect, their primary objective is to punish those responsible for a significant procedural failure and to deter similar future occurrences”.[8]
[8]Judgment under appeal, above n 1, at [30], citing Bublitz v R [2019] NZCA 379; and R v Lyttle [2022] NZCA 52, [2022] NZAR 117.
The Judge concluded:[9]
[34] In my judgment there was a significant delay in this case in obtaining and providing disclosure, which does amount to a significant procedural failure on the part of the police, without a reasonable excuse to have done so. Further, best practice was not followed by Detective Constable Dhillon, with respect to an alternative case theory of the investigation concerning the possible involvement of Mr Sylva, the other party present at the Massey house at the time of the fire. That was particularly so after the casual conversation that Detective Elima recalled that he had with Detective Constable Dhillon, which on his evidence I accept may have occurred as early as 16 February 2022. That is a period of some eight and a half months before Mr Apanui was ultimately released from custody. Detective Constable Dhillon should have at least commenced a NIA background check on Mr Sylva at that time. That leaves aside the inexplicable delay in forwarding the evidential swabs taken from both Mr Apanui and Mr Sylva to the ESR at the earliest available opportunity after the Massey fire, to ensure that an effective analysis of them could at least have been undertaken of them. The outcome of any such early analysis is of course speculative but none the less his failure to act promptly and in accordance with best practice, rendered that possible line of enquiry, to be useless.
Fixing quantum of costs
[9]Judgment under appeal, above n 1.
In fixing quantum of the Costs Award, the Judge again considered the decisions of this Court in Bublitz and Lyttle. In particular, he had regard to each of the factors identified at [14(d)–(e)] of Lyttle as set out below at [32].
The Judge considered each of those factors in turn and concluded:
[38] As previously stated the applicant seeks a costs award of $75,000 together with the defendant's costs of bringing the application in the sum of $5,640.75. I find that the police were or should have been aware that Mr Sylva was a suspect in the Henderson fire on 16 February 2022. The charge against Mr Apanui was dismissed on 28 November 2022, that is a total of 286 days.
[39] The very unique circumstances of the present case result in a complex factual matrix. The respondent has however conceded that a significant procedural failure occurred. I see no reasonable excuse for that procedural failure and therefore the Commissioner of Police should be liable for a costs order under s 364 of the Criminal Procedure Act for the custodial detention suffered by Mr Apanui over that period. I assess a just and reasonable costs figure, given the circumstances of the appellant's custodial remand, given the circumstances of that confinement to be:
(a) $100 per day over that period, in total the sum of $28,600;
(b)the applicant is entitled to a payment of his counsel's legal costs of preparing the costs application, for which he was not legally aided, and a further sum of $5,640[.]75 is also made.
Although the Judge did not say so directly, we infer from his decision that he intended Mr Apanui to receive the sum of $28,600 under s 364(8) of the CPA calculated by reference to his days in custodial detention plus the sum to cover the costs of preparing the application. That is, Mr Apanui was awarded a costs order totalling $34,240.75.
Approach on appeal
Section 271 of the CPA provides a right of appeal against a decision to make or refuse to make a costs order under s 364. This Court may confirm, vary or set aside the costs decision made by the Judge, or make any other orders it deems appropriate.[10]
[10]Criminal Procedure Act 2011, s 274.
In Bublitz, this Court observed that a decision as to quantum under s 364 is one of the residual areas remaining of discretionary determination.[11] That position was confirmed in Lyttle.[12] The precise quantum of an order made under s 364, therefore, is a matter of discretionary impression for the judge, subject to review grounds rather than a general right of appeal.
[11]Bublitz v R, above n 8, at [24], citing Taipeti v R [2018] NZCA 56; [2018] 3 NZLR 308 at [49].
[12]R v Lyttle, above n 8, at [80].
Accordingly, to succeed on appeal in relation to the quantum of the Costs Order, the Commissioner is required to demonstrate that the Judge acted contrary to law or principle, or that he failed to take into account some relevant matter, or that he took account of some irrelevant matter, or that he was plainly wrong.[13]
Section 364 and its consideration by this Court
[13]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] citing May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312, (2009) 19 PRNZ 40 at [8].
Section 364(1) of the CPA defines “procedural failure” as:
… a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act
Section 364(2) and (3) provide:
(2)A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
(3)The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.
Section 364(8) and (9) provide:
(8)The court may order that some or all of the amount ordered to be paid under a costs order be paid to any person connected with the prosecution.
(9)Subsections (2) to (8) do not limit or affect the Costs in Criminal Cases Act 1967.
In Bublitz, this Court reviewed the history of s 364 and commented on the nature of awards under the section. It said:[14]
[39] … While we accept that s 364 does contemplate awards having some potential compensatory effect, and that the extent of any wasted costs is a mandatory relevant consideration, other factors will also weigh in the setting of just and reasonable costs.
[40] Where a failure has led to significant costs being incurred by other parties, a larger award may be appropriate. Equally, where a failure has not resulted in costs being incurred, this may reduce the amount that is “just and reasonable” in the circumstances. But in contrast to the CCCA regime, compensation is not the sole or even primary focus of any award. This is apparent in the language of s 364.
[41] That the focus of the provision is not compensatory is made clearer still by the fact that neither the prosecutor nor defendant are expressly named in the list of those whose costs may be taken into account under s 364(3). Although we do not doubt that the prosecutor and defendant are captured within the catch all “any other person”, their absence from the list is telling of the purpose of the provision. This may be compared to the discretion to an award under s 5 CCCA, which is expressly referable to the defendant.
[42] Further evidence that compensation is not the focus of the s 364 jurisdiction is that absent an order under s 364(8) that the costs be paid to a person connected with the prosecution, the costs are to be paid to the court — that is the default position.
…
[44] We conclude that the primary purpose of s 364 is penal, for non-compliance, rather than compensatory. As s 364(3) makes plain, wasted costs of the courts, victims, witnesses and parties will be relevant to fixing the award of costs. In determining what is a just and reasonable award, the court will have regard to all relevant factors, including the extent of non-compliance, its effect on the administration of justice and also upon the participants in the proceeding. Just what weight will be given to these various factors will depend upon the particular circumstances of the case assessed against the purpose of incentivising compliance with the parties’ procedural obligations.
[14]Bublitz v R, above n 8 (footnotes omitted).
In Lyttle, this Court discussed the purpose of s 364 and outlined the approach to fixing quantum as follows:[15]
[15]R v Lyttle, above n 8 (footnotes omitted).
[9] The purpose of s 364 of the CPA is therefore “to avoid defaults which may delay or derail a trial, thereby ensuring the efficiency of the criminal justice system”.
[10] Once a court is satisfied that there has been a “significant” procedural failure and that there is “no reasonable excuse” for that failure, the court has a wide discretion as to the amount of an order, save for the requirement that the amount ordered must be no more than is “just and reasonable” in light of the costs incurred by the court and participants in the proceedings.
[11] A significant procedural failure is one that causes avoidable delays in the administration of criminal justice. Such delays:
(a) risk undermining confidence in the criminal justice system;
(b)may cause incalculable stress and inconvenience to participants in the criminal justice system, including defendants and victims;
(c)cause the wasting of judicial and court resources that might otherwise be deployed on other cases; and
(d)waste preparation and hearing time of counsel, the parties, witnesses and other participants in the criminal justice system.
[12] Not all procedural failures will meet the threshold of being “significant” for the purposes of s 364(2) of the CPA. In assessing the significance of a procedural failure, the court will need to carefully assess the impact of the failure on the proceeding.
[13] Section 364 of the CPA contemplates awards having some potential compensatory effect, although the power to award costs is not contingent upon actual costs being incurred. The primary objective of an award under s 364(2) is to punish those responsible for significant procedural failures and to deter similar future occurrences. …
[14] In summary:
(a)The policy that underpins awards made under s 364(2) of the CPA is the desire by the legislature to discourage inefficiency and unnecessary delays in the criminal justice system.
(b)The principal purpose of a costs order under s 364(2) of the CPA is to denounce failure to comply with procedural obligations, hold the defaulting person accountable and to deter similar breaches in the future.
(c)There may also be an element of compensation associated with an order made under s 364(2).
(d)Once the statutory criteria for making an order under s 364(2) are satisfied, considerable leeway is bestowed on the courts when determining the quantum of an order, provided the sum awarded is no more than is just and reasonable in light of the costs incurred by the court, victims, witnesses and any other person.
(e)Other factors that may influence the amount of an award made under s 364(2) of the CPA include:
(i) the nature and frequency of the procedural failure;
(ii)if there was a failure to disclose evidence, the nature of the evidence that was not disclosed;
(iii) the nature of the charges faced by the defendant;
(iv) the seniority of those responsible for the procedural failures; and
(v)the extent to which it is necessary for the court to denounce the failures, hold the defaulting parties accountable and to deter similar breaches in the future.
The Supreme Court dismissed an application for leave to appeal this Court’s decision in Bublitz.[16] In doing so, it observed that it “may well wish to consider at some point the extent to which s 364 … has a compensatory as well as a punitive purpose”.[17] However, it declined to do so in that case given its very particular procedural background.[18]
Submissions for the Commissioner
[16]Bublitz v R [2019] NZSC 139.
[17]At [16].
[18]At [16]–[19].
Ms Johnston, counsel for the Commissioner, accepts the delayed disclosure of Mr Sylva’s possible involvement in the Henderson fire was a significant procedural failure without reasonable excuse and that Mr Apanui was entitled to a costs award under s 364. However, Ms Johnston submits the Judge erred in seeking to compensate Mr Apanui for time spent in pre-trial detention and by awarding costs for bringing the application. She submits an award in the vicinity of $15,000 was appropriate and seeks a substituted costs order for that amount.
Ms Johnston says the Judge’s basis for the Costs Order — compensation for time spent in custody at a daily rate — does not fit with the purpose of the CPA. She submits the Judge erred by directly referencing the Costs Order to time spent in custody.
Ms Johnston submits costs orders under the CPA are primarily designed to curb the culture of procedural non-compliance by marking significant procedural failures. She says any compensatory effect is secondary and should not be the yardstick against which orders are set. Ms Johnston submits the Judge erred by seeking to compensate Mr Apanui in a manner analogous to the Compensation Guidelines where a clear policy decision has been made to exclude this circumstance. As a consequence of that error, she says the level of costs awarded was higher than was warranted as a penalty to police and is out of line with other cases.
Ms Johnston invites the Court to compare s 364 with the costs regime contained in the Costs in Criminal Cases Act 1967, which has a primarily compensatory purpose of contributing towards the costs of a successful defendant’s defence. In contrast, she says any costs awarded under the CPA must be calibrated against the costs incurred by parties to the prosecution because of the procedural failure.
Ms Johnston draws on various reports[19] produced during the legislative development of the CPA that indicate the purpose of s 364 is to “[change] the culture of non-compliance”,[20] and “promote accountability by making performance failure explicit and public”.[21] She submits that both Bublitz and Lyttle affirm the “penal” purpose of s 364 costs orders, where any element of compensation is an “incidental effect rather than the primary purpose of the provision”.[22]
[19]Criminal Procedure (Reform and Modernisation) Bill 2010 (explanatory note); and Ministry of Justice and Law Commission Departmental Report for the Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill (16 May 2011).
[20]Law Commission Criminal Pre-Trial Processes: Justice Through Efficiency (NZLC R89, 2005) at ch 11.
[21]At [400].
[22]Bublitz v R, above n 8, at [28].
Ms Johnston also submits the aspect of the Costs Order reimbursing Mr Apanui for his actual legal costs was not warranted and without a principled basis. She says, unlike civil proceedings, costs do not follow the event.
Submissions for Mr Apanui
Mr Duff, counsel for Mr Apanui, submits the Costs Order was neither inconsistent with the legislative regime nor unreasonable in the circumstances. He says the amount ordered gave recognition to the unique circumstances of the case and that the Judge made no error of law or principle by including compensation when determining quantum.
However, Mr Duff says the Judge did not include a discrete amount to sanction police for the procedural failure itself, and, as a result, the Judge failed to give effect to the primary purpose of the s 364. Therefore, Mr Duff submits a further amount of $15,000 should be imposed to censure the police.
Mr Duff submits this case presents a unique factual narrative where wrongful imprisonment was the direct consequence of the procedural failure. In this context, he says the cases relied upon by the Commissioner lose their currency and do not address what weight can be apportioned to the consequence of a procedural failure in circumstances where compensation is clearly justified. Mr Duff says the Judge appropriately considered a $100 per diem as well as the costs of preparing the originating application were a suitable measure to mark this consequence.
Mr Duff submits there is a clear inference that the Judge considered the legal costs of preparing the application fell under what was just and reasonable and were far from excessive or frivolous.
Discussion
We take no issue with much of the Judge’s decision. Although the Judge was asked by Mr Duff to have regard to the Compensation Guidelines, he properly made no reference to them when considering whether to make a costs award under s 364 of the CPA or in fixing the quantum of the award. Despite the Crown conceding that the delayed disclosure of Mr Sylva’s possible involvement in the Henderson fire was a significant failure in police process and that an award of costs was appropriate, the Judge properly reached his own decision on those matters. He also had appropriate regard to the considerations identified in Lyttle when considering the quantum of the award.
However, we agree that the Judge made an error of principle when he set the award by reference to the amount of time that Mr Apanui had remained in custody after Detective Constable Dhillon had first been told that Mr Sylva was a suspect in the Henderson fire. We acknowledge that this was the approach sought in Mr Apanui’s application, albeit at a higher rate than adopted by the Judge. However, in adopting that approach, the Judge set the award by reference to the effect of the police procedural failure on Mr Apanui rather than assessing the amount appropriate to penalise that failure. In doing so, he set the award principally, if not wholly, by reference to its compensatory effect and not by reference to its penal purpose.
Absent further consideration by the Supreme Court, this Court has agreed, in Bublitz and Lyttle, there can be an element of compensation in an award of costs under s 364 of the CPA. However, that was in the context of clear statements that the principal purpose of a costs order is to denounce failures to comply with procedural obligations.[23] In setting the quantum by reference to its compensatory effect, the Judge failed to have regard to that principal purpose. We also agree that, in doing so, the Judge arrived at a quantum that was disproportionate to the seriousness of the procedural failures.
[23]At [28]; and R v Lyttle, above n 8, at [13].
We accept that the consequences of the failures were significant for Mr Apanui — his continued detention in custody for almost nine months — and that this can relevantly be taken into account when assessing the seriousness of the error. However, from the perspective of police procedure, the delayed disclosure of Mr Sylva’s involvement in the Henderson fire and the delayed sending of the swabs for analysis, while significant, were nothing like the serious and serial failures present in Bublitz and Lyttle.
In Bublitz, this Court dismissed an appeal of the High Court’s costs order of $50,000 under s 364 of the CPA that was to be split five ways between the four defendants and the Court after a criminal trial had been aborted after nine months because of what the trial Judge described as “extensive” and “unprecedented” late disclosure by the Crown. However, the Court did acknowledge that the award might have been higher.[24] In Lyttle, the Court dismissed an appeal and a cross-appeal of an award of $75,000 for multiple failures by the police to disclose relevant documents and items of importance that resulted in a series of adjournments that delayed the trial by about two-and-a-half years.[25] Those failures of procedure were of a different magnitude from the failures in the present case. In Lyttle, the Court noted that the failures in the three cases determined by the Court had significant consequences in terms of imprisonment.[26]
[24]Bublitz v R, above n 8, at [49]–[50].
[25]R v Lyttle, above n 8, at [104].
[26]At [89], [151] and [212].
We are also satisfied that the failures in the present case were not as serious as those in S v R, where Gwyn J awarded costs of $30,000 for a series of failures of disclosure, which the Judge considered to be significant and without reasonable excuse.[27] We consider the failures with respect to Mr Apanui’s prosecution to be more akin to the failure in M v R, where Grice J awarded costs of $6,000 against the police to sanction a failure to disclose a relevant telephone conversation.[28] The Judge found that there was no reasonable excuse for the failure, which caused delay in a historic sexual abuse trial.[29]
[27]S v R [2020] NZHC 1375, [2020] 3 NZLR 205 at [38]–[41]; aff’d R v Lyttle, above n 8.
[28]M v R [2022] NZHC 529.
[29]At [75].
Against that background, we consider that an award of costs of over $34,000 to be excessive, even if the Judge had made the award solely by reference to its punitive purpose. We agree that an award in the order of $15,000 is more appropriate to the seriousness of the police failures.
We also agree that the Judge erred in including in the Costs Order a component of Mr Apanui’s notional legal costs in preparing his application.[30] Having regard to the language of subss (2) and (3), we consider that costs awarded under s 364 must relate to the procedural failure that is the reason for the order. An application for a costs order under the section is not a civil proceeding, in which costs follow the event. There is no regime that applies to the award of costs for a CPA costs application apart from the potential application of the Costs in Criminal Cases Act 1967. It is common ground that no award of costs was available under that Act.
[30]Mr Duff informed the Court that counsel had prepared the application on a pro bono basis.
As Mr Duff confirmed, Mr Apanui’s costs in relation to the criminal prosecution were met from Legal Aid and the Ministry of Justice declined to be a party to the application. In these circumstances, there is no basis for including counsel costs in the award.
We therefore set aside Judge Winter’s costs order of $34,240.75. In substitution, we order the Commissioner to pay costs of $15,000 for the procedural failures in the conduct of the investigations into the Massey and Henderson fires. Because of the impact of those failures on Mr Apanui, we order that the award be paid in full to Mr Apanui.
Because Mr Apanui’s counsel were acting on this appeal on a pro bono basis, we make no order as to costs in this Court.
Result
The appeal is allowed.
We set aside the costs order made in the District Court. In substitution, we award costs of $15,000 against the Commissioner of Police to be paid to the respondent.
We make no order as to costs.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Appellant
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