Craig v Chief Executive of the Department of Corrections

[2024] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA168/2024
 [2024] NZCA 278

BETWEEN	KYLIE JAMES CRAIG Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	Collins, Churchman and Osborne JJ
Counsel:	Appellant in person W S Taffs for Respondent
Judgment: (On the papers)	1 July 2024 at 10 am

JUDGMENT OF THE COURT AS TO COSTS

The application for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

1. On 28 May 2024, this Court dismissed Mr Craig’s appeal[1] against a decision of Radich J declining Mr Craig’s application for a writ of habeas corpus.[2]  Mr Craig has since applied for an award of costs under s 14(4) of the Habeas Corpus Act 2001. 

   [1]Craig v Chief Executive of the Department of Corrections [2024] NZCA 184 [Court of Appeal judgment].

   [2]Craig v Chief Executive of the Department of Corrections [2024] NZHC 202.

2. The respondent opposes Mr Craig’s application.

Background

1. Mr Craig is currently serving a 16 month term of imprisonment in Invercargill Prison.  On 14 February 2024, he applied to the High Court for a writ of habeas corpus.  The High Court was required to consider whether Mr Craig’s detention is lawful.  In a judgment issued on 16 February 2024, Radich J concluded that Mr Craig’s detention is lawful and therefore declined the application for a writ of habeas corpus.[3]

   [3]At [23]–[24].

2. Mr Craig appealed Radich J’s decision and challenged the legitimacy of his convictions and sentence.  This Court dismissed the appeal, noting that Mr Craig pleaded guilty to the offences which resulted in his sentence of 16 months’ imprisonment and that, if he wishes to challenge his sentence, he may apply to the High Court for leave to appeal out of time against sentence.[4]

   [4]Court of Appeal judgment, above n 1, at [10]–[11].

3. On 5 June 2024, Mr Craig filed an application asking the Court to exercise its discretion under s 14(4) of the Habeas Corpus Act to award costs to Mr Craig as the unsuccessful party.

4. Section 14(4) provides:

   14       Determination of applications

   …

   (4)All matters relating to the costs of and incidental to an application are in the discretion of the court and the court may refuse costs to a successful party or order a successful party to pay costs to an unsuccessful party.

5. Mr Craig made a similar application in the High Court.  Radich J declined the application, noting that it will be rare for costs to be awarded in favour of an unsuccessful applicant for habeas corpus and that it is a primary rule in New Zealand that a lay litigant is not entitled to recover costs.[5] 

   [5]Craig v Chief Executive of Department of Corrections [2024] NZHC 356 at [4]–[5], citing McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [88].

6. We agree with that reasoning and consider it applies equally to Mr Craig’s application before this Court.  The circumstances of this case do not justify an award of costs to Mr Craig.

Result

1. The application for costs is declined.

Solicitors:
Crown Solicitor, Christchurch for Respondent