F v Police HC New Plymouth Cri-2007-443-10
[2010] NZHC 263
•12 February 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
CRI-2007-443-000010
F
Applicant
v
NEW ZEALAND POLICE
Respondent
Hearing: (On the Papers) Appearances: T Sutcliffe for the Appilcant
J S Gurnick for the Respondent
Judgment: 12 February 2010
JUDGMENT OF DUFFY J [Re Costs]
This judgment was delivered by Justice Duffy on 12 February 2010 at 11.00 am, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Counsel: T Sutcliffe P O Box 19021 Hamilton 2001 for the Applicant
Solicitors: Auld Brewer Mazengarb and McEwen P O Box 738 New Plymouth 4601 for the Respondent
F V POLICE HC NWP CRI-2007-443-000010 12 February 2010
[1] Mr F has successfully appealed against a conviction of theft, which was entered against him after a defended hearing in the District Court. In the course of allowing the appeal, I found that there were a number of errors and omissions in the prosecution case. Mr F refers to those findings and applies for an award of costs under the Costs in Criminal Cases Act 1967.
[2] Mr F seeks an award of costs both for the appeal hearing and for the defended hearing. He contends that this Court has jurisdiction to make an award of costs for the defended hearing as well as the appeal. The New Zealand Police disagree with this view and argue that at best the jurisdiction of this Court to award costs for a defended hearing in the District Court, as a result of a successful appeal against the conviction entered in that Court, is unclear.
[3] Mr F also seeks an order that any award of costs I may make in his favour be paid by the respondent, rather than from the consolidated fund. Such orders can only be made if a court is satisfied that the prosecution was brought in bad faith or negligently: see s 7(2) of the Act. Despite the seriousness of such findings, both Mr F and the respondent have agreed that, provided I confine my enquiry to the presence or otherwise of negligence, I can deal with the application on the papers. This accommodation has been reached because it will be some time before I sit in New Plymouth again, and Mr F does not want to travel to Auckland for a hearing on costs.
Jurisdiction
[4] Because I was concerned about the jurisdiction of this Court to award costs for the defended hearing in the District Court, I requested the parties to file memoranda on this topic. This was done. Mr F contends that there is jurisdiction for this Court to award costs for both hearings, whereas the respondent contends that this Court’s jurisdiction is limited to awarding costs on the appeal. The first matter to determine, therefore, is whether or not I have jurisdiction to determine costs in relation to the defended hearing in the District Court, as well as on the appeal. This decision will influence what findings I make on the respondent’s overall conduct.
[5] The courts’ authority to award costs following criminal hearings is to be found in the Costs in Criminal Cases Act 1967 (the Act). Under s 2 of the Act, “court” is broadly defined to mean any court exercising criminal jurisdiction. However, the Act goes on to provide separately for costs to be awarded in first instance hearings (ss 5 and 6), and for appeal hearings (s 8). Whereas ss 5 (costs of successful defendant) and 6 (costs of convicted defendant) set out specific criteria for a judge to take into account when awarding costs, s 8 gives an appellate court a general discretion to award costs as it thinks fit. The criteria in s 5 are non- exhaustive, so that under this section, a court can take other matters into account, but a failure to take account of the specified criteria would leave a decision vulnerable to a successful challenge. The statutory criteria in s 6 limit the award of costs to a convicted defendant to special cases involving a difficult or important point of law. The broad discretionary nature of s 8 means that, subject to adherence to reasonableness, the decision is at the court’s discretion. Thus, there is a different statutory formula for the exercise of each provision.
[6] Then there is s 7 which specifies how costs awarded under ss 5 and 6 are to be paid. Where the prosecution was brought by or behalf of the Crown, s 7(1) provides that payment is to be made by the Chief Executive of the Department for Courts, and is recoverable as a debt due from the Crown. But if the court awarding costs under s 5 decides that any person has acted negligently or in bad faith in bringing, continuing or conducting a prosecution, the court can direct that payment is to be made by the party bringing the prosecution, and not by the Department for Courts.
[7] Section 7 expressly provides for how, in general, costs awarded under either ss 5 or 6 are to be paid, as well as for recovery against an informant who has acted negligently or in bad faith in relation to the conduct of the prosecution. The section does not expressly provide appellate courts awarding costs under s 8 with the authority to specify which arm of the Crown should be responsible for payment of those costs. This is a separate factor which could support the view that Parliament intended to delimit the power to award costs according to the role of the court making the award.
[8] Sections 5, 6 and 8 are all subject to the Costs in Criminal Cases Regulations
1987. These regulations prescribe a statutory scale for awarding costs under the Act. The scale separates hearings by setting separate maximum limits for convicting and appellate hearings. However, s 13(3) of the Act permits departure from the scale in circumstances where a court is satisfied, having regard to the special difficulty, complexity, or importance of the case, that an award in excess of the prescribed scale is desirable. This is one area in which the Act does treat the different types of hearings uniformly.
[9] The Act’s separation of authority to award costs following convicting hearings from appeal hearings, and the different regimes it sets outs for making such decisions, tends to suggest that Parliament intended that the court responsible for the particular hearing should determine whether or not costs should be awarded.
[10] Mr F argues that the effect of s 121 of the Summary Proceedings Act
1957 enables a court that has heard and determined an appeal in the appellant’s favour to award costs on both the appeal and the first instance hearing. This argument is based on the language of s 121(1), which provides in relation to any general appeal coming before it that the Court may “… make such order in relation to it as the Court thinks fit …”. Mr F submits that the scope of the authority, as the wording illustrates, is intended to be broad and general. He also refers to the examples of what an appellate court can do in s 121(2). These include, in respect of any conviction, setting it aside, and further, in respect of any order made by an inferior court pursuant to subs 4(b) and (c), quash that order or orders and then “make such other order warranted in law (whether more or less severe) in substitution therefore as the court thinks ought to have been made”.
[11] The respondent counters Mr F ’s argument with the submission that s 121 of the Summary Proceedings Act does not extend to awards of costs. It is the Costs in Criminal Cases Act that governs this area. The Summary Proceedings Act powers which enable a Court hearing a s 121 appeal to make decisions as if they were made in the District Court are exercisable only in relation to convictions and sentencing in the District Court. Since costs are neither part of conviction or sentencing, and are dealt with under a separate statutory regime, there is nothing in the Summary
Proceedings Act’s extension of District Court powers to appellate courts that can assist Mr F . The proper approach is for this Court to refer the costs application, so far as it relates to matters falling outside the appeal, back to the District Court for determination.
[12] The question of the scope of this Court’s jurisdiction to award costs to Mr F looked to be troublesome. There are, as the respondent has identified, various aspects of the Act which, when read literally, suggest that the jurisdiction under s 8 is limited to the appeal hearing only. But against that view there are good policy reasons, which Mr F identified in his submissions, why the court which has allowed a successful appeal should be the court to deal with all issues as to costs. This is efficient, and often the appellate court will have a better view of the relevant issues.
[13] I have found a passage in R v Reed [1981] 1 NZLR 524 (CA) in which the Court of Appeal has determined the scope of an appellate court’s jurisdiction to award costs. In that case, the Court of Appeal heard an appeal against awards of costs given in the High Court in relation to two High Court trials, and an appeal to the Court of Appeal. The second High Court trial had followed the appeal. The Court of Appeal found the High Court was wrong to award costs in relation to the appeal, and that only the Court of Appeal could make such orders. When it came to the orders made for the High Court trials, the Court of Appeal found that the High Court had jurisdiction to make orders in relation to both trials. But when it came to the first trial, the Court of Appeal stated that, following a successful appeal, it would have been more appropriate for the Court of Appeal to deal with costs relating to the first trial as well as for costs on the appeal. In this regard, the Court of Appeal considered that the authority s 8 gave to courts hearing appeals to award costs was sufficiently broad to encompass awarding costs for the earlier hearing in the convicting court as well. At 525 Cooke J said:
If there has been an appeal and order for a new trial, it is usually more appropriate that the Court of Appeal should deal with the costs of the first trial at the same time as it deals with the costs of the appeal, partly for the reason that before ordering a new trial, the Court of Appeal will necessarily have reviewed the first trial. In the JBL case, R v Arnold and Ors (CA109/77 etc; judgment 9 February 1979) the Crown conceded for the purpose of the applications then before the Court that the jurisdiction given
by s 8 to the Court which determines the appeal to make “such order as to costs as it thinks fit” extends to costs in relation to the committal proceedings and the trial leading to the appeal. We think that is right. In drawing attention to it we are not criticising the Judge at the second trial, as it may be that the possibility that this Court should deal with the first trial costs was not present to his mind. As it is, his order relating to those costs will stand. (emphasis added)
[14] The approach taken in Reed was later approved by the Court of Appeal in R v Rust [1998] 3 NZLR 159 (CA). I consider I am bound by Reed and by Rust. This means I will determine all aspects of Mr F ’s costs application.
[15] In Rust, at 163, the Court of Appeal appears to have used s 5 when it came to considering an award of costs for the convicting hearing, rather than to source its authority from the broad discretion in s 8 as was recognised in Reed. I consider I need not spend too much time on resolving this issue. I intend to follow the approach set out in Reed, but in doing so, I will rely on the considerations in s 5 to assist me when it comes to determining whether or not to award costs for the convicting hearing.
Facts
[16] Mr F , or companies he was associated with, contracted with persons for delivery services using trucks which Mr F or his companies had sold to them. As well as the trucks, part of the sale items included moveable interchangeable decks for use on the trucks. The usual arrangement included the sale of a truck and two interchangeable decks, one of which was known as a spreader deck, and the other a tipper deck. Mr F was found to have stolen a tipper deck that had been sold earlier under this arrangement.
[17] At the District Court hearing, the complainant gave evidence which represented to the Court that he was the owner of the tipper deck that Mr F was alleged to have stolen. The complainant said that this tipper deck had been left at the yard where Mr F operated his delivery service business from, and that while it was there Mr F had illegally sold it to someone else.
[18] Mr F denied stealing a tipper deck. He said that the tipper deck he sold (the alleged theft) was a different tipper deck from the one which had earlier been sold as part of the package deal he offered to owner drivers. His evidence was that the tipper deck that went with the truck and spreader deck the complainant had bought required repair. To ensure the complainant had another tipper deck available to use, Mr F had lent a substitute tipper deck to the complainant. This second tipper deck was and always remained the property of Mr F . Consequently, his sale of this deck to a third party was lawful as he was free to dispose of it as he wished.
[19] There were no identifying ownership details on the tipper decks which Mr F sold. When a police officer interviewed Mr F , he advised her that one tipper deck could be distinguished from another by the type of system used for removing the deck from a truck. He described how there were two different systems for removing tipper decks from trucks. One involved the use of items known as landing legs, whereas the other did not. Mr F advised the police officer that the tipper deck he had lent to the complainant did not have landing legs, whereas the tipper deck which he had earlier supplied to the complainant did have these legs. The presence of landing legs on one tipper deck, and their absence on the other was the one distinguishing feature between the two decks.
[20] The key issue for the District Court to determine at the defended hearing was ownership of the tipper deck that was used by the complainant when the need arose, but which was situated at Mr F ’s yard. If it was the same deck that had formed part of the earlier package sold to the complainant, Mr F had no right to sell it to someone else. But if it was not that tipper deck, he had every right to do so.
[21] The District Court found that the tipper deck belonged to the complainant, and that the actions Mr F took in relation to it amounted to theft. On appeal, I took a different view and allowed the appeal against conviction. Full details of the reasons for allowing the appeal are set out in that judgment (HC New Plymouth CRI
2007-443-10, 10 June 2008), which should be read together with this judgment.
Errors and omissions in the prosecution case
[22] It is evident from the judgment on appeal that there were a number of errors and omissions in the prosecution case. These included:
a) The police officer who gave evidence of interviewing Mr F did so by reference to a police job sheet which was completed some time after the interviews. The interviews were on 15 and 22 January 2007. Written notes were made at the time, but these records were not kept. Instead, on 23 January 2007, the officer typed a job sheet from the written notes;
b)The job sheet did not record Mr F ’s explanation to the officer about the two different systems for removing tipper decks, and how this could help to distinguish the tipper deck he had lent to the complainant from the one which had been sold earlier;
c) The police officer maintained during the defended hearing that Mr F had never told her about landing legs, and how the presence or otherwise of this system could distinguish one tipper deck from the other; and
d)Unbeknown to the police officer, during the second interview, Mr F made a tape-recording of the interview. The tape-recording was not made available at the defended hearing. The Crown accepted the recording was authentic, and a transcript of the recording was admitted as fresh evidence for the appeal. The transcript revealed that on at least three occasions during the interview, Mr F explained to the officer the two different systems for removing tipper deck trays. He had also explained to the officer how the type of system could help identify its ownership.
[23] Had it not been for Mr F recording the second interview, the fact he gave the police a detailed explanation on how to distinguish one tipper deck from another would not have been known. As that explanation was exculpatory, it was important from his perspective that it be recorded. The police officer’s failure to ensure a record of the explanation was available at the defended hearing, coupled with her denial that any such explanation had ever been given, is likely to have played a significant role in the conviction of Mr F .
[24] The respondent has filed an affidavit from the police officer to explain the failure to keep a contemporaneous record of the interviews. In her affidavit the officer accepts that the evidence she gave at the defended hearing denying any explanation about the distinguishing features of the tipper decks was mistaken. She seeks to explain the omission to make any written record of this topic by reference to her lack of knowledge of trucks. She says she cannot recall Mr F referring to tipper legs, and she still does not understand the significance of tipper legs. I find the latter comments surprising as Mr F ’s explanation about the two different systems for removing tipper deck trays provides compelling proof that the tipper deck he was accused of stealing was not the deck that formed part of the package deal.
[25] The same officer had also interviewed the complainant’s mother. The job sheet record of that interview referred to the complainant’s mother saying the “tipper was left on legs in [Mr F ’s] backyard”. This statement suggests the tipper deck she spoke of had landing legs. The tipper deck Mr F was accused of stealing had no such legs. It had to be removed using a system which attached a strop to the weight of the deck to lift it from the truck and down on to blocks. The inconsistency between the two systems for removing tipper decks from trucks was apparent from the evidence available to the prosecution.
[26] I consider that the police officer’s failure to maintain an accurate and comprehensive record of the interviews with Mr F was sloppy police work. Even if she did not understand the relevance of the information she was being given, she should have ensured it was faithfully recorded. The transcript of the second interview reveals that Mr F made more than a passing reference to this topic.
Had the explanation been recorded and carefully investigated, it could have been compared to other information that was available, such as the complainant’s mother referring to the tipper being left on legs. This in turn could have sparked an enquiry which may have led to the realisation that the tipper deck originally purchased used landing legs, whereas the one Mr F was accused of stealing did not. In this way the reliability of Mr F ’s explanation could have been strengthened.
[27] Secondly, the failure to record Mr F ’s explanation impacted negatively on Mr F ’s evidence at the defended hearing. When he gave evidence about how to distinguish one tipper deck from the other, this explanation had the appearance of being offered for the first time. This effect was compounded by the officer’s denial in evidence of having heard the explanation before. I found at [27] of the judgment allowing the appeal that:
… the Judge gained the misleading impression that the appellant’s explanation on the topic of the tipper/landing legs was constructed for the defended hearing. This would have damaged the appellant’s credibility on this topic as well as his credibility in general.
[28] There were other problems with the prosecution case. The police failed either to investigate, or if they did so, to recognise that the complainant had never been the true owner of the tipper deck.
[29] The complainant used the truck, spreader deck and tipper deck to provide contract delivery services through a limited liability company known as Skyline Transport Limited (Skyline). Skyline was the party that had purchased the truck, spreader deck and tipper deck from a company in which Mr F had an interest. Mr F held no documents that recorded the actual sale of those items. Some time after Mr F was convicted of theft, he was able to obtain ownership information from the Official Assignee, but by then Skyline was in liquidation. This information showed that the tipper deck was part of a package which Skyline had purchased using finance obtained from a company called Auckland Finance. At the time of the defended hearing, Auckland Finance had repossessed the truck and other equipment. In his evidence to the court, the complainant said that Auckland Finance was looking for the tipper deck for the purpose of repossession. Thus the owner of the truck and the two interchangeable decks was either Skyline or Auckland Finance.
[30] The failure to establish the correct owner of the tipper deck is also illustrative of sloppy police work. Material that Mr F was later able to obtain from the Official Assignee demonstrates that, at the time of the police investigation, there was documentary information available that would have established that the complainant had never purchased a truck or associated items such as a tipper deck. Since the truck and tipper deck which Skyline purchased was subject to a finance agreement that enabled the financier to repossess for failure to pay what was due under the finance agreement, the police should have ascertained where the rights of ownership rested. I do not think it is expecting too much of the police for them to realise the necessity for establishing correct legal and beneficial ownership of an item that was alleged to have been stolen.
[31] It follows that there were a number of aspects about the prosecution case at the defended hearing which demonstrated poor police work. Furthermore, this poor police work was prejudicial to the presentation of Mr F ’s defence and is likely to have led to his conviction. The evidence of the officer, which denied Mr F had provided an exonerating explanation, had two prejudicial effects: first it deprived the Court of information which would have shown that the subject tipper deck was different from the one purchased by the complainant’s company; and secondly (given Mr F ’s insistence that the explanation had been provided) it made Mr F out to be a liar. I consider that if all the relevant evidence had been properly before the Court it would have been apparent that there was no basis for a conviction.
[32] When it came to the appeal hearing, the respondent, which was then represented by the New Zealand Police, acted most responsibly and in a way which assisted Mr F in the prosecution of his appeal. The successful appeal resulted from the fresh evidence which Mr F introduced. Much of this fresh evidence was available at the time of the defended hearing. Consequently, Mr F faced having to meet the onerous tests applied to the admission of such evidence. However, the respondent did not oppose the introduction of any of this fresh evidence. Nor was there a strong opposition to Mr F ’s arguments. The respondent acknowledged there were defects in the prosecution case; they sought the opportunity to cure those defects through the case being sent back to the
District Court for re-hearing. This result was the focus of their argument in opposing Mr F ’s appeal. I decided against this course of action for the reasons given in the appeal judgment.
[33] By the time of the appeal, the respondent’s conduct was proper and all that should be expected of a prosecuting authority facing the circumstances that arose in the appeal. Whilst on the part of Mr F the appeal was very thoroughly prepared. He had clearly gone to great trouble to ensure the Court had everything that could be relevant to deciding the appeal. However, the smooth passage of the hearing, which he enjoyed, was very much influenced by the respondent’s approach.
Principles relevant to an award of costs
[34] Mr F seeks an award of indemnity costs. The respondent opposes any award of costs, and in the alternative contends that costs according to the scale are all that should be awarded. The scale costs for both a defended hearing in the District Court, and an appeal hearing are $226 per half day. Mr F ’s appeal was heard in one day and, therefore, the scale costs awardable to him for the appeal are
$452. The defended hearing was also heard in one day and so the scale costs for the defended hearing are $452. His actual legal costs for the appeal were $10,000, and for the defended hearing $8,515.61. He seeks total indemnity costs, minus GST, which for the defended hearing come to $7,578.11, and for the appeal $8,888.89. He also seeks disbursements of $78.11 for the defended hearing.
[35] Before I can award Mr F costs at the amount he seeks, I must be satisfied that there is something more than just his success to warrant an award (s 8(2)), and that having regard to the special difficulty, complexity or importance of his case, payment of costs greater than the scale is desirable (s 13(3)). Furthermore, I consider that any award of costs in relation to the defended hearing should involve a consideration of the factors set out in s 5.
[36] In Rust, the Court of Appeal identified what can constitute good grounds for making an award under s 8. Such grounds include: where the appeal involves a novel issue; and whether there was something to take the appeal out of the ordinary
category of appeal in which there has been a wrong decision on a question of law, or a misdirection which has resulted in the quashing of a conviction and the ordering of a new trial. I consider that Mr F ’s appeal was out of the ordinary category of appeal. The need for the appeal was due to the entry of a conviction that occurred as the result of poor and inept police work, both during the investigation and in the conduct of the prosecution. Mr F was placed in the position of having to prove that he was not guilty, and that he had not lied to the District Court.
[37] Solicitor-General v Moore [2000] 1 NZLR 533 (CA) makes it clear that investigative errors alone are insufficient to justify an award of costs. Moore was a Crown appeal against a costs order which was made, following the discharge of Mr Moore under s 347 of the Crimes Act 1961. The Court of Appeal set aside the costs order. It did so because it considered that the District Court Judge, who had awarded costs, had not given any weight to the fact that the investigative errors had weakened the prosecution case without prejudicing Mr Moore. The police’s omission to make proper disclosure, while violating Mr Moore’s rights, had not caused any prejudice. Nor had the Judge given any real weight to the strength of the initial case against Mr Moore, and the technical basis for discharging him under s 347. The Court of Appeal found that that Mr Moore had not got near to establishing that he was not guilty. This case can be distinguished from the present. Here the errors in the police case have resulted in real prejudice to Mr F . Those errors provided a basis for a conviction, which could not otherwise have been entered. The reason for setting aside his conviction was more than technical. The police errors in Mr F ’s case are highly relevant to an award of costs.
Costs on the defended hearing
[38] When I consider the facts of the prosecution of Mr F in terms of s 5, I
draw the following conclusions:
a) Lack of good faith is not in issue due to the parties’ agreement that the costs application be determined on the papers (s 5(2)(a));
b)For reasons already outlined, it is clear that at the commencement of the proceedings, when all the relevant evidence that was available to the police is taken into account, there was insufficient evidence to support the conviction of Mr F (s5(2)(b)). This factor favours an award of costs;
c) By not keeping a proper record of the second interview with Mr F , the police were not able to take proper steps to investigate any matters coming into its hands which suggested Mr F might not be guilty. Furthermore, there was independent evidence available to the police to confirm that the tipper originally in the complainant’s possession had landing legs, whereas the tipper deck which he later used, and accused Mr F of stealing, had no such landing legs (s 5(2)(c)). This factor favours an award of costs;
d)For reasons already outlined, I do not think the police investigation was conducted in a reasonable and proper manner (s 5(2)(d)). This factor favours an award of costs;
e) This is not a case where the rejection of the prosecution case turned on a technical point (s 5(2)(e)). This factor favours an award of costs;
f) Section 5(2)(f) is not relevant to this costs’ assessment; and
g) I consider the behaviour of Mr F during the course of the investigation, and the conduct of the defendant at the prosecution hearing was such that an award of costs should be made (s 5(2)g)). Mr F made himself available for police interviews. He tried to provide what was undoubtedly a somewhat complicated explanation for how to identify the tipper deck he claimed was his from the one he had sold to Skyline. Had time and care been taken to listen to his explanation, and to record it properly, the defects in the prosecution case would have become apparent.
[39] All the relevant considerations in s 5 support an award of costs for the defended hearing. The investigative errors directly led to the prosecution of Mr F . Had the officer properly recorded the exculpatory statements Mr F made in the second police interview, and then properly considered those statements, I doubt very much that a prosecution would have been brought. I consider that if all relevant information had been before the Court, the initial police case against Mr F would have been weak. There was the complainant’s oral complaint to the police. There was also some circumstantial evidence regarding work done by Falcon Engineering on a tipper deck. But the available inferences to be drawn from this evidence would have been affected by Mr F ’s exculpatory statements about the distinguishing features between the two tipper decks. Furthermore, thorough investigation of the complainant’s evidence would have established that he was never the owner of a tipper deck. Until there was a complaint from the true owner, it is hard to see how the prosecution case could have got off the ground for that reason alone. But if it had, a thorough investigation into the matters described in Mr F ’s second interview would have established that there were two tipper decks, and the one Mr F was accused of stealing was not the same tipper deck that the complainant laid claim to. It follows that I do not accept the respondent’s arguments to the contrary. I consider there can be no dispute that Mr F is entitled to some award of costs. The real issue is whether or not an award of costs should be in excess of the scale, and whether an order should be made in terms of s 7(2) based on a finding of negligence.
Costs on the appeal
[40] The fresh evidence Mr F produced for the appeal hearing showed that the tipper deck which was purportedly stolen was, in fact, the property of Mr F ’s company, and it had never at any time been the property of the complainant or any corporate entity associated with the complainant.
[41] The effect of the way in which the police conducted the prosecution meant that the District Court Judge was persuaded that Mr F was not a credible witness. For the preparation of the appeal hearing, Mr F was put in the position of having
to establish that he was not guilty of the offence of which he had been convicted. That he achieved this was due to his efforts in preparing for the appeal.
[42] The responsible attitude the respondent took during the appeal hearing is a consideration against an award of costs on the appeal. However, the adoption of that attitude is likely to be the result of the thorough way in which Mr F prepared his appeal. Without such a thoroughly prepared appeal the errors and omissions in the prosecution case would have not been apparent. Proving to an appellate court that a police officer’s evidence is factually wrong, and that the prosecution case is unfounded is never easy. Appellate courts are also reluctant to intervene and depart from the convicting Court’s assessments on credibility. Had it not been for Mr F having a record of the second interview, the true nature of its contents were unlikely to have been accepted, as it would have been his word against the police officer’s. When police errors and omissions oblige an appellant to prove he has not lied under oath, that he is a credible witness whose evidence should be accepted in preference to prosecution witnesses, including the officer in charge of the investigation, and he is not guilty of the offence of which he was convicted, I consider an award of costs is warranted.
Should the award exceed the scale?
[43] In T v Collector of Customs HC Christchurch AP167/94, 28 February 1995, Tipping J identified the principles to be applied in making a decision under s 13. He found that the test in s 13(3), which required the court to have regard to the “special difficulty, complexity or importance of the case”, required the court to focus on the case itself, and not on the circumstances of the applicant, or the effect of the litigation on him. He said at 2:
The use of the word “special” when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered.
Tipping J went on to find that because the focus is on the case itself, it is “not enough for the applicant to be able to say that by dint of its features, the case had special importance to him”. In this regard, Tipping J sounded the warning at 2 that:
The fact that the scale is miserable, indeed insultingly so, naturally leads a judge to strain to find sufficient cause to exceed the scale. Any such tendency must be resisted, albeit with little enthusiasm.
In T, the matters relied upon by the applicant to qualify for an award under s 13 were the sheer volume of material involved in the case, the very detailed nature of the interviews between the successful defendant and the departmental investigators, and the complicated evidence the prosecution involved. It was also said that the case was difficult and of legal importance because of the uncertainty whether the charges were of strict liability, absolute liability or required mens rea. For the Collector of Customs, it was argued that none of the matters individually or collectively brought the case to the point of being one of special difficulty, complexity or importance. Tipping J concluded that the points relied on by the applicant justified a conclusion that the case met the s 13(3) test. The relevant difficulty was found to relate to the points of law involved, on which there was no direct authority; and the complexity related to the very considerable amount of material which was before the Court, and which needed careful analysis to bring out the true issues. The special importance of the case was related to the legal points involved, and to the fact the Court was faced with a prosecution relying on what the procedures ought to have been against the applicant’s contention that whatever the procedure should have been, those actually followed were materially different. Tipping J found, therefore, that he had jurisdiction to award costs on a full indemnity basis. However, he did not consider that a full indemnity or anything approaching it was justified. The sum of $10,000 was considered a fair order, given that those responsible for the ultimate decisions appeared to have ignored that actual practices did not match the departmental requirements. In that case, the actual costs had come to $29,000.
[44] In Mr F ’s case, there is nothing of legal complexity about the appeal. But I consider there was a special difficulty with the case in that the conduct of the police resulted in Mr F having to prepare and apply to introduce fresh evidence. This is not an easy task. Furthermore, Mr F was in the position of having to persuade
this Court that the District Court had wrongly preferred the prosecution evidence to his evidence. It could be said in retrospect that had Mr F ensured the fresh evidence was available at the defended hearing, the outcome would have been different. But that I consider would be assessing the case with a degree of hindsight bias, and to impose a counsel of perfection on Mr F . Whilst defendants should ensure that their cases are properly prepared and evidence which exonerates them is available, they should not be expected to go into court anticipating that the police will not provide a full and proper account of the relevant evidence they have obtained in the investigation. This is particularly true of interview evidence of a defendant that exonerates that defendant. I consider there is simply no excuse for the police officer’s failure to properly record the second interview, and to ensure that it was before the District Court. The respondent has not pointed me to any evidence which would suggest that in the lead up to the defended hearing, Mr F would have been on notice of the respondent’s omission to adduce evidence of the second interview. The manner in which the prosecution was conducted meant that his defence was significantly prejudiced (which creates a special difficulty) and, consequently, his subsequent appeal posed a special difficulty. I consider the special difficulty Mr F faced for both hearings justifies an award in excess of scale.
[45] I also consider that the case was important in the sense that where police conduct results in a wrongly obtained conviction, it is of importance to the criminal justice system that the error is identified, recognised and corrected. The court has a duty to maintain control over police procedure and, where appropriate, impose censure. Usually this arises in cases of abuse of process through violation of rights, or failure to make proper disclosure. Failing to keep a proper record of exculpatory statements, and then denying in evidence that such statements were made is analogous to those forms of procedural fairness. The police conduct in this case is deserving to censure, and justifies an award of costs in excess of scale. I now turn to consider what the amount should be.
[46] In R v Mather and Brown HC Christchurch T33/97 and 34/97, 26 July 1999, Chisholm J found at 10 that: “Full indemnity will be rare and is likely to be reserved for exceptional cases probably involving bad faith or other gross misconduct”. Chisholm J found that the deficiencies in the police investigation were not in this
category but were, nonetheless, serious. Much the same can be said here. The deficiencies are serious, but Mr F accepts that it is not appropriate for me to embark on considering if there was bad faith.
[47] Mr F seeks full costs for both hearings. Regarding the appeal, had this been a case where the respondent was resistant to the admission of the fresh evidence, and had strongly opposed the appeal during the course of the hearing, I would have considered this a case coming close to an award of full indemnity. However, once all the fresh evidence was before the respondent’s counsel, a responsible position was adopted towards the appeal. I consider, therefore, that whereas the circumstances that led to the appeal justify an award in excess of scale, it should be something less than a full indemnity in order to take into account the proper and responsible conduct displayed by the respondent at the appeal hearing. I consider, therefore, that Mr F should be awarded costs at approximately one-half of his full costs, which comes to $4,444.44. I consider he is also entitled to reasonable disbursements and, if these are not able to be agreed, they are to be determined by the Registrar.
[48] Regarding the costs after the defended hearing, there was nothing that occurred to alleviate the deficiencies in the respondent’s conduct. In Ham v R (1998) 16 CRNZ 199, Hammond J awarded 84 per cent of costs in a case where the Crown had made no attempt to explore alibi evidence. In the present case, as in Ham, any exculpatory evidence made available to the police was essentially disregarded. I consider that an award of 80 per cent of Mr F ’s costs is warranted. This comes to $6,062.48. Mr F is also entitled to the disbursements he seeks of
$78.11.
[49] Mr F seeks an order under s 7(2). Section 7(2) provides that where a court is of the opinion a person has acted negligently in bringing, continuing or conducting a prosecution, the court may direct that the defendant’s costs shall be paid by the Government department, or by an officer of the Crown on whose behalf that person was acting. There is nothing in relation to the appeal hearing that would justify a direction of this nature. However, for the defended hearing, I consider that the deficiencies I have identified do amount to negligence. The investigation and
prosecution of Mr F was careless. This carelessness harmed Mr F . The likelihood of him suffering such harm was readily foreseeable. I consider that, in accordance with the statements in Reed and Rust, just as it is open to me to award costs for the hearing in the District Court, I can and therefore do direct that the costs awarded on the defended hearing in the District Court are to be paid by the respondent and not by the Chief Executive for Courts.
Results
[50] The application for costs on the appeal and on the defended hearing is successful. Costs on the appeal are awarded at $4,444.44, together with reasonable disbursements. Costs on the defended hearing are awarded at $6,062.48, together with disbursements of $78.11. The costs awarded on the defended hearing are to be paid by the respondent.
Duffy J
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