G v Police HC Rotorua CRI-2010-463-5

[2010] NZHC 2413

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2010-463-5

BETWEEN  G

Applicant

ANDPOLICE Respondent

Hearing:         18 June 2010

(Heard at Hamilton)

Appearances: Applicant in Person

H A Wrigley for Respondent

Judgment:      23 December 2010

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

23 December 2010 at 2.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Ronayne Hollister-Jones Lellman, Crown Solicitors, PO 13063, Tauranga

Copy to:

Stanley Raymond G  , PO Box 304, Tauranga 3140

G V POLICE HC ROT CRI-2010-463-5  23 December 2010

[1]      Mr G   has made an application for costs under the Costs in Criminal

Cases Act 1967.  The application arises out of events that occurred on the evening of

27 June 1999, involving Mr G  , his neighbours and the Armed Offenders Squad.   As a result of what occurred Mr G   was prosecuted for assault, threatening  to  kill  and  trespass.    Following  a  depositions  hearing,  the  police withdrew the charge of threatening to kill.   Subsequently the trespass charge was also withdrawn.  Mr G  , however, was convicted on the assault charge, and discharged.  He appealed to the High Court against his conviction and his appeal was successful.  At the re-trial, he was discharged without conviction, but ordered to pay witness expenses of $75.  That gave rise to a second appeal.  In a judgment delivered on 24 July 2002, William Young J allowed the appeal and there the prosecution process ended.

[2]      It  is  plain  that  Mr G    has  been  deeply aggrieved  by the criminal proceedings  brought  against  him.    He  considered  that  at  various  stages  those involved, including the original complainant and the police officers who decided to bring the charges were activated by malice.   He states that the prosecutions have destroyed his life.   He identifies as costs that he now seeks sums totalling over

$660,000.   That sum includes $300,000 which he claims in respect of the alleged forced sale of his property.  He also advances a claim for interest in respect of the various other costs he has sustained, in the sum of $223,573.50, calculated at 5 per cent over a period of ten years since 1999.

[3] As will become apparent, I consider that Mr G has misunderstood the nature of the Court’s jurisdiction under the Costs in Criminal Cases Act. He has sought to recover sums that are not costs within the ambit of the Act, but more in the nature of damages that he might seek to claim in a civil action.

Background

[4]      The  essential  facts  are  not  complex.    There  had  apparently been  a  long running dispute between Mr G   and his neighbours on Lochhead Road, Te

Puna, near Tauranga.  Mr G   lived at 151 Lochhead Road.  The neighbours were a Mr Kevin and Mrs Linda Bastin, who lived on the adjoining property (153

Lochhead Road) with their children.  There had been a dispute about the boundary between the two properties.   On 3 May 1997, Constable Elliot Western served a trespass  notice  on  Mr G    on  behalf  of  Mr Bastin.    The  notice  warned Mr G   to stay off the property at 153 Lochhead Road, Te Puna and advised him that it would be an offence to wilfully trespass there from that point.  Constable Western’s file note recorded that Mr Bastin had called the police on that day alleging that Mr G   had gone onto his property and started to abuse him about the position of a boundary fence.  Constable Western’s note recorded that, when serving the trespass notice, he told Mr G   to keep away from Mr Bastin and his family and not to converse with them in any way.

[5]      In his affidavit of 17 November 2009, Mr G   referred to his dispute with  Mr Bastin.     He  alleged  that  Mr  Bastin  had  persistently  entered  onto Mr G  ’s property when he was absent during the day and also at night-time. Mr G   had found gates open and trees damaged.   He also complained that Mr Bastin had entered onto another property adjacent to Mr G  ’s, and would sit in a house being constructed there staring at Mr G  .  Mr G   claims that he felt intimidated, and sought police help in issuing his own trespass notice on Mr Bastin.

[6]      Mr G   claims that on 26 June he approached the police, who told him they would not issue the notice for him.  They gave him three copies of a trespass notice with instructions to deliver it personally to Mr Bastin.  Mr G   said that he served the trespass notice the following day.  He says that he had folded it in such a  way  that  Mr Bastin  would  take  some  time  opening  it.    That  would  allow Mr G   time to walk away and back onto his own property.  He did this, and had got as far as the roadside before Mr Bastin came running after him, making threats and waving a steel door handle menacingly in his face.  Mr G   later claimed that in self-defence he spat at Mr Bastin to distract him, and ran off.  When he had arrived at the safety of his own property, Mr G   said to Mr Bastin “show me the scar on your guts where you shot yourself”.  Mr G   claims that Mr Bastin subsequently twisted what he had said.

[7]      According  to  Mr Bastin,  he  told  Mr G    to  leave  the  property  and ripped up the trespass notice.  Mr Bastin claimed that Mr G   then spat at him and was generally abusive.  There were further exchanges as Mr G   retreated to the roadside.  Mr Bastin claimed that Mr G   had thrown rocks at him, and he had responded by throwing a door handle at Mr G  .   Mr Bastin claimed that, in the course of this altercation, Mr G   threatened to shoot him.

[8]      Mrs Bastin had made a 111 call to the police.  She reported that Mr G   had threatened to shoot Mr Bastin.  The Armed Offenders Squad deployed.

[9]      Senior Sergeant John Purcell was one of the Armed Offenders officers who went to Mr G  ’s property that evening.  The officers were briefed about the complaint that Mr G   had threatened to shoot Mr Bastin.   Armed Offenders Squad members surrounded Mr G  ’s address and Mr Purcell says that he saw Mr G   through the windows.  He was hailed with a loud hailer from outside the property.  Mr G   was observed moving towards the windows and looking outside.  He was told to come out of the address with his hands up on a number of occasions over a period of about an hour.   A police negotiator placed a call to Mr G  .  After some time negotiating, Mr G   agreed to leave the house after the police had threatened to use tear gas.  Outside the house, he was placed on the ground, handcuffed and arrested.  The Armed Offenders officers were present at the property from about 8.30 p.m. until 11.00 p.m. that evening.

[10]     In his affidavit of 17 November, Mr G   claimed that the police had invaded his home and property and later said “my home and property was invaded by heavily armed men who kidnapped me”.   In his affidavit, Mr Purcell observed that the Armed Offenders Squad had followed standard procedure in dealing with Mr G   in response to his alleged threat to use a firearm.

[11]     Constable Western was also present on the night, although initially he was stationed at a cordon on Lochhead Road.  Later he moved to the entrance-way to 153

Lochhead Road.  He took custody of Mr G   following his arrest.  He informed Mr G   that he was under arrest for trespassing and advised him of his rights pursuant to the New Zealand Bill of Rights Ac 1990.  He described the situation as

“calm and controlled”.   Mr G   was placed in the rear passenger seat of the police vehicle, without the use of force.  Mr G   told Constable Western that he was  uninjured.     They  travelled  back  to  the  Tauranga  Police  Station  where Mr G   was allowed to speak with a solicitor by telephone and in private.

[12]     Mr G   then asked to make a statement and Constable Western took the statement from him in handwriting at 11.26 .m.  That process took until 1.15 a.m. on

28 June.  The statement was eventually produced at both of Mr G  ’s defended hearings.  The statement included the following:1

G.It starts on Saturday afternoon.  That’s when I came in here to get a trespass notice put on Kevin.    This was because of all the staring and intimidation tactics that I’d had enough of.   I rung a private investigator.  He said it would cost $4,000 or $5,000 do things like video and interviewing the neighbours.   They suggested their first move was to trespass them.  I didn’t want to go there but the lady at the police station said I had to serve it.  I realised the old trespass notice had finished a month ago.  I went out there late this afternoon, just on dark.  I went around, walked up to the door. Knocked.  He came up.  I said Kevin take a look at this.  He said what’s this.  I said it’s pretty self explanatory.  I walked away out the gate.  He walked after me.  I heard him rip it.  He said you’re nothing but an absolute mongrel, a loser, every one wants you out of here.  I walked onto the roadside.  He came running out after me.  He came right up to me. He said, he swore, you’re an absolute mongrel, you have a trespass order against you.   I said no, it had run out.   He said it had been renewed.  He said the police had rung all the neighbours so warned them of your suicidal tendencies.   He called me a loser, a woman basher, and that my dad was supporting me.  He said he wanted to supply the rope.  He said he wanted to smack me.  I walked towards my place.  He said he was going to ring the police.  Linda poked her head out and said ‘stop it Kevin, come inside’.  Just as I was walking into my driveway something whistled by me.  It was a door handle. It missed me.  He went right up to my boundary.  He was looking for what he’d thrown.  I didn’t know it was his handle at first.  I thought it was cell phone.  He was yelling out ‘no woman, no women want to come to your place’, ‘we’ve seen you standing at your window doing it’.

He went back to his place.  I was going to the police station to drop it off, the notice, off at the station when a car, police car, went the other way.  I turned around but never saw them.  I waited at home.  I rung the police station.   The police rung back, they said they’d surround me and to keep talking on the phone.  She told me to go outside and I said there was no one there.  I told her I wasn’t going outside and the police were welcome to come in.  I hung up on her. Next thing I hear a guy outside.  I opened the door.

1 In the statement W is Constable Western, and G Mr G  .

W.Why didn’t you come out when asked.  You knew it was the police yet you stuffed around for ½ hour?

G.       I don’t think that has anything to do with this. W.  Why do you think he did that?

G.I’m not sure, I felt intimidated.  I still do, the whole lot.  I acted on the information given to me.

W.Did you spit at Kevin at his front door when you handed him the notice.

G.       No.

W.      He said that he[sic] did.

G.Someone has made allegations that I threatened to kill.  He made the threat to get the rope to kill me.

W.      So you deny you made any threats towards Kevin?

G.       I made no threats, I never have made threats towards Kevin.

W.Did Buck or Kevin tell you to keep off Kevin’s property within the last year – verbally?

G.       No they haven’t.

W.      They say they have.

G.       I don’t recall it.  I had no intentions of going there. W.      Did you ask the police to serve it?

G.       I found the form I thought it would be alright.  I wasn’t ever told I

couldn’t go there.  I haven’t spoke to Kevin for over a year. W.     But Buck would have told you last year not to go on.

G.He probably did.  I followed the order to the letter.  I wasn’t aware there was an extension to it.

W.      Did you mention anything about a shotgun to Kevin?

G.       Did I mention it.  No I don’t think so.  I’ve got no guns.

W.      You didn’t say anything in the heat of the moment, anger, to Kevin? G.     I didn’t threaten Kevin.

W.      Did anyone else see what happened apart from Linda?

G.No, I don’t think Linda would have seen it.  He’d have everything on computer though.  It’s in his garage.

W.      Did  you throw anything back at Kevin at all? G.   No, nothing at all.

W.Have you ever had any psychiatric problems or take medication for psychiatric problems?

G.       No.

W.Stop interview for toilet stop and run out of water. (0102 hrs) Start interview (0106 hrs)

W.      What’s your feelings towards the Bastins now?

G.I have no animosity towards them, I just want to get on.  I don’t have a problem getting on.

W.Now can you see  you  guys  getting on now, especially after his allegations and you being arrested?

G.I’ve got no problems with him.   I was only disagreeing with him using my digger and that wall  I feel I was quite within my rights.  I would not have gone to his place if I’d known there was an extended trespass in place.  I would have asked the police.  But she told me I had to give it to him.

W.      Did you tell her you’d previously been trespassed from that address? G.     I think I did.

W.      The P.I, who was he?

G.Mike someone, ex police now.   I need a phone book.   Advanced investigations.  0800 Ethics. 021 993 983.

[13]     It is to be noted that Mr G   denied having spat at Mr Bastin at his front door.   He did not say that he had spat at him at the roadside.   After taking the statement,   the   constable  charged   Mr G     with   trespassing,   assault   and threatening to kill.

[14]     Mr  Bastin  and  his  son,  Clinton  Bastin,  had  been  interviewed  prior  to Mr G  , by another officer.   Constable Western was aware of the content of their statements prior to interviewing Mr G  .

[15]     Mr Bastin’s statement was as follows:

KEVIN MAURICE BASTIN, states that is my full name, I am, 45 years of age.   My date of birth is 22nd  of April 1954, I am a company director, of BUGS For Us, to name one.

I am making this statement to Constable Andy Rendell in relation to a incident that happened at my residence tonight at about 7 pm – 7.30 pm.

My  residence  is  153  Lochhead  Road,  Te  Puna,  our  phone  number  is

[omitted]

I was inside the house doing some minor repairs, I had been knocking on a door, fixing a door handle.

One of my children said that there was someone knocking on our door.  I

told them it’s no one, it’s me repairing the door.

A couple of minutes later the children again said that there was someone knocking at our front door.

I went to the door.  Opened it and saw Stan G   standing there.  I know him as he is my neighbour.  Stan passed me a bit of paper.  It was folded.

I opened it up and could see that it was a trespass notice from him to trespass us off his property.

I ripped it up in half and told him that I hadn’t issued his trespass notice to him, the police had.  With this, he spat into my face.  I told him to get off my property and he turned and started running out the front gate.  I chased him to his property.

I wasn’t running after him and he wasn’t running hard, in fact he was going backwards and pretending that he was wanking himself, while he was saying come on, come on, come onto my property and I’ll have you arrested.  While he was going backwards towards his properly he said numerous times that he was going to blow me away with a shot gun.

He said that he was going to shoot me in the guts.  He said this about 5 or six times.

He then got back onto his property.  He then started throwing rocks at me from his property.  They didn’t hit me, I threw the door knob that I had in my hand at him.  I was screaming at my wife Linda to ring the police and I went back inside and locked all the doors, settled the kids down because they were very upset.  My son heard a vehicle leave the property about three or 4 minutes later. This vehicle returned a short time later.

This statement is true and correct.

Statement has been taken and witnessed by Constable Andy Rendell.

[16]     Clinton Bastin’s statement was as follows:

My full name is Clinton Morris Baston[sic], DOB 18/6/78 born at Tauranga and employed as a mechanic, my phone number at home is [omitted].  I am

talking to Constable Lack about an incident that happened at my address of

153 Lochhead Road, Te Puna.  I was in my bedroom talking to my girlfriend on the phone.

At about, I am unsure of the time, but Dad had been out for dinner and had only been home 5 minutes it could have been about 7.00 pm.   I heard a knock at the door but I didn’t think much of it.  About 1 minute later I heard shouting and I came out of the bedroom.   I went outside to our driveway. My dad Kevin was standing on the road just up from our driveway.   The next door neighbour I think was just inside his gate on his property.  I saw a rock being thrown passed my dad and it came from where our next door neighbour Stan lives.  Dad was telling him to calm down.

Stan then said “I will go and get a fucken shotgun and shoot you” and this was said about 4 times.  At this stage dad walked back to where I was as he was about as scared as me.  The way Stan was talking was very aggressive. My dad then called out for someone to ring the police as there is a trespass order out against Stan to come on our property.  I have no idea what made Stan like this tonight.

Q.       Do you know if Stan has got a gun? A.     No I don’t.

Q.       What does Stan do for a living? A.         I don’t think he does anything.

Q.        Have you had problems with Stan in the past?

A.I have been there before when Stan has lost it with dad.  He has done the fingers to me before when I have driven past.

[17]     Constable Western noted that only a short time had elapsed between the incident and the notebook statements taken from the Bastins.  They had, in his view, had very little opportunity to compare accounts, but they had told a similar story. Constable Western thought that that enhanced their credibility.  Constable Western said in his affidavit that he formed his view of Mr G  ’s criminal liability from his assessment of the statements of Mr Bastin and his son and Mr G  ’s own account of the same incident.

[18]     Constable Western considered that there was sufficient evidence on which to charge Mr G  .  He also noted that Mr G   appeared to be familiar with the  law  of  trespass,  yet  had  failed  to  accept  that  he  had  been  warned  off  153

Lochhead Road.   Constable Western had also had a discussion with Constable Buckley who was working the same shift, on 27 June, about Constable Buckley’s dealings with Mr G  .  The discussion preceded the taking of Mr G  ’s

statement.  On 29 June Constable Buckley created a formal record, in the form of a job sheet, of the dealings that he had had with Mr G  , about which he had advised Constable Western.

[19]     The job sheet recorded visits by Constable Buckley to Mr G  ’s address on 4 April and 8 September 1998 when there were concerns about the possibility of self-harm  raised  by  members  of  Mr G  ’s  family.    On  30 January  1999, Constable Buckley had gone to the address, following information received concerning  trouble  between  Mr G    and  the  Bastins.     Mr G    had complained that Mr Bastin had built a fence on council property and planted trees on the road front.  Constable Buckley spoke to Mr and Mrs Bastin whom he described as “very upset and worried by their neighbour’s actions”.  Mrs Bastin stated that she lived in fear for her family and herself, especially when her husband was away at work.   Mr Bastin stated that he feared for his family’s life.   Mr Bastin said that Mr G   had  cut  down  a  tree  which Mr Bastin  had  planted  on  the  grassed roadside  in  front  of  his  house,  and  he  had  also  found  Mr G    inside  his property taking measurements of his fence.   There had been an argument and a scuffle.    Mr Bastin  complained  of  Mr G    standing  at  his  lounge  window making crude gestures towards him.  Following these discussions Constable Buckley returned to Mr G  ’s property, told him about the discussions and said that he was not to enter their property unless invited to do so.

[20]     Constable Buckley also recorded that on 14 June 1999 whilst working in the watch-house,  he  had  received  a  telephone  call  from  Mr Bastin  alleging  that Mr G   was causing further problems:   he had been in an altercation with builders working on a nearby property, as well as making threats.

The criminal proceedings

[21]     Mr G   elected trial by jury on the charge of threatening to kill, and there was a preliminary hearing on that matter on 17 September 1999.   Sergeant Elliott was the prosecutor.   Mr G   was represented by Peter Williams QC. The hearing was presided over by Community Magistrates.  As the officer in charge, Constable Western was present throughout.   It was his evidence that the cross-

examination of Mr Bastin involved a wide-ranging attack on Mr Bastin’s character which was allowed to continue despite objections by Sergeant Elliott.  The notes of evidence confirm that that is so.  The attack included allegations that Mr Bastin was a “rotten egg”, that he must be “schizophrenic”, that he had assaulted his former wife, and later stalked her, and when away on business he would “… drink himself stupid and pick up any woman he could find”.   It was suggested that he had also physically attacked his current partner.  It was also suggested to Mr Bastin that his son Clinton was a liar and at one stage Mr Bastin pleaded with counsel not to “rubbish”  Clinton,  saying “you  won’t  find  a  nicer  young man”.    It  was  put  to Mr Bastin that he was trying drive Mr G   off his property so that he could acquire it.

[22]     I have to say, having read the cross-examination, that a judge would not have allowed substantial parts of it to occur.  It consisted of a series of allegations based on the statements of third persons who were most unlikely ever to have been called as witnesses at the trial and ranged over a series of events in which Mr Bastin had been involved going back to the 1970’s.

[23]     During an adjournment, Mr Bastin told Sergeant Elliott that he did not want to continue with the prosecution.  Mr Bastin and his wife were finding it too much of an ordeal, and they did not want their son exposed to similar treatment.  The police advised them that the kind of cross-examination currently taking place was unlikely to be allowed by a District Court Judge who would hear the remaining two charges of assault and trespass.  However, the decision was made to withdraw the charge of threatening to kill.

[24]     Following the defended hearing, Sergeant Elliott sent to Constable Western a report relating to the trespass charge.   In his report, Sergeant Elliott noted that Mr G   had supplied information to another police officer that it was the police who gave Mr G   a trespass notice and advised him to serve it on Mr Bastin personally.   He commented that it was the serving of the trespass notice that precipitated the whole incident.  He questioned whether the police should proceed with the trespass charge, if this was correct.  He asked that Constable Western clarify the position.

[25]     Constable Western made further inquiries, but was unable to locate any one who had advised Mr G   in relation to the trespass notice.  Because the police could not disprove that Mr G   had received what he described as “unsound advice” concerning service of the trespass notice, the decision was made to withdraw the charge of trespass.  In the report that he prepared Constable Western noted that both Sergeant Elliott and Senior Sergeant Glover had suggested that the charge of trespass should be withdrawn.  He recorded his agreement with them.  That meant that, at the scheduled defended hearing to take place on 13 December 1999, only the charge of assault remained.

[26]     Judge McKegg presided at the defended hearing of the assault charge which took place on 13 December 1999.   Once again, Constable Western was present throughout.  Judge McKegg found that Mr G   had spat at Mr Bastin, and he accepted Mr Bastin’s evidence that that happened at the door of his house.   He thought that after the spitting, Mr G   and Mr Bastin had been equally at fault in the events that ensued, Mr Bastin throwing a door knob at Mr G   and Mr G   throwing stones at Mr Bastin.  It is clear from the judgment that the the conviction was based on the spitting incident.

[27]     The  Judge  asked  for  a  pre-sentence  report.    Sentencing  took  place  on

8 February 2000.  The Judge convicted Mr G  , but imposed no other penalty

“because of the minor nature of the assault”.  Mr G   then appealed.

[28]     Mr G    had  represented  himself  at  the  hearing  but  he  instructed Mr Williams QC in relation to the appeal.  On 9 February 2001, Morris J allowed the appeal2.  He appears to have taken the view that the Judge may have intervened too much at the hearing, and failed to allow Mr G   to put his case adequately.  I say “appears” because Morris J recorded criticisms to that effect in the notice of appeal, without saying directly that the criticisms were justified.  Morris J also noted criticism of the police prosecutor, who had failed to “put a particular allegation” to Mr G   in cross-examination.  The judgment did not particularise any of these

errors.

2 Stanley Raymond G   v Police, High Court, Rotorua, AP 44/00, 9 February 2001.

[29]     The police decided to proceed to a re-trial.  In making that decision they were influenced  by  the  fact  that  Mr Bastin’s  account  had  been  accepted  by  Judge McKegg, and the prosecution had succeeded despite the absence of Clinton Bastin, on whom the prosecution had intended to rely.  Second, Constable Western took the view that a successful prosecution and conviction of Mr G   might be salutary in terms of the ongoing neighbours dispute.

[30]     Following an approach by a solicitor then acting for Mr G   to see whether a resolution would be possible if Mr G   signed a letter indicating that he would not seek costs if the police withdrew the charge, it is apparent that the police did consider whether or not they should do so.  One of Constable Western’s superiors, Inspector Douglas, wrote in an internal memorandum dated 25 October

2001:

Mr G   is firmly believed to be “at fault” by the police.  Nothing of substance was discovered as a result of his numerous allegations and statements that he was innocent.

The purpose of taking the matter back to Court again by the police was to again have Mr G   told that he was wrong.   The matter of an actual conviction or even a penalty is no longer important.

Should the suggestion of counsel be taken seriously, there would have to be a clear written acknowledgement from G   that:

•    He accepts that he is wrong in the matter.

•That any withdrawal of the charge is simply on the basis that the matter is now old and better put to rest.

•He accepts that he will not pursue the matter any further … or through  any  civil  remedy  against  either  the  complainant  or  the police.

•    He accepts that police actions on the night (September[sic] 1999)

were correct, as were all subsequent Police actions and procedures.

[31]     The matter was not resolved, and the second defended hearing took place on

19 February 2002, before Judge Rollo.   Once again, there was a finding that the charge of assault was proved on the basis that Mr G   had spat on Mr Bastin. The  Judge  discharged  Mr G    without  conviction,  but  ordered  him  to  pay witnesses expenses of $75.

[32]     The order made for the payment of costs was sufficient to give Mr G   a right of appeal against this second conviction.3    Mr G   represented himself in respect of the appeal which was heard before William Young J on 15 July 2002. William Young J held4  that it was plain that there was evidence before the District Court Judge which, if accepted, as it had been, warranted the Judge’s conclusion that there had been an assault by spitting.  He considered that there was nothing raised by Mr G   which suggested that the District Court Judge had made any tangible error in his approach to the case.

[33]     However, the contention advanced by Mr G   on the appeal was that his defence had not been properly put to the District Court Judge.   William Young J recorded that Mr G   accepted that he had spat at Mr Bastin, but claimed that this occurred at the roadside, and was done in self defence.  Mr G   claimed that he had spat at Mr Bastin in order to distract his attention.  He maintained that the roadside spitting incident had been discussed between him and counsel prior to the hearing before Judge Rollo, but he had been advised not to give evidence.  He was adamant that his instructions to counsel were that there had been a spitting incident which occurred at the roadside, but it was in self defence.  However, defence counsel did not put to Mr Bastin that Mr G   had spat on him whilst he was at the roadside.

[34]     Judge Rollo accepted the evidence of Mr Bastin, which had been supported also by evidence from Mrs Bastin about noticing spittle on his shirt.  There was no evidence to the contrary, and the Judge was impressed by Mr Bastin as a witness. William Young J said at [36]:

Given the importance placed by the Judge on the evidence that there was spittle on the shirt, it is not surprising that Mr G   would be concerned about  the  fact  that  his  explanation  for  this,  namely  that  he  had  spat  at Mr Bastin while on the roadside, was not put to Mr Bastin for comment. Mr G  ’s position is that he attempted to protest, during the hearing, at the way the defence was being put but was physically restrained by his counsel and told to “shut up”.

3 Feng v Police (1990) 6 CRNZ 540.

4 Stanley Raymond G   v New Zealand Police, High Court, Tauranga, AP 10/02, 24 July 2002.

[35]     The Judge also referred to a letter dated 2 July 2000 written to Mr G   by the solicitor who had acted for him at the time of the hearing and who had appeared as junior counsel to Mr Williams.   The letter referred in detail to the problem presented by Mr G  ’s claim that there had been a roadside spitting incident.

[36]     In  the  letter,  the  solicitor  commented  that  although  he  had  acted  for Mr G   for about three years in respect of the prosecution, it had only been relatively recently that Mr G   had told him for the first time that he had in fact spat at Mr Bastin.   He suggested that there would have been ethical difficulties in putting the defence forward in view of the fact that Mr G   had previously said that he did not spit at Mr Bastin, and had made a similar statement to other people, including the police.   Nor would it have been possible for him to be called as a witness, because of the danger of perjury.   The letter maintained that all this had been explained at great length on several occasions and that Mr G   had been fully aware of the position.

[37]     Counsel  for  the  respondent  before  William Young J  had  not  obtained evidence  from  counsel  who  acted  for  Mr G    in  relation  to  what  was effectively an allegation that counsel had failed to comply with their instructions. William Young J commented that counsel for the respondent, probably rightly, had seen the case as not warranting the added expense and inconvenience of obtaining that evidence.   However, he decided that there was an inconsistency between the way in which the defence had been run and the instructions which Mr G   maintained he had given counsel.  Although he thought it unlikely that running the defence on the basis of the roadside spitting incident would have done Mr G   any good, nevertheless he felt driven to allow the appeal on the basis of considerations that he summarised at [54]:

1From the decision of the learned District Court Judge, the tipping point in the case was Mrs Bastin’s evidence as to the wet shirt.

2.Mr G   did have an explanation for that wetness which, in the end, was not put.

3.Accordingly,  the  issue  upon  which Mr  G   claims  that  his defence was not put was of central importance in the case as a whole.

4.Implausible though his explanation was in the context of the history of the case (including what he had said on earlier occasions), he was entitled to have a Judge rule on it if that is what he wished.

5.Although I think it unlikely that an explanation for the wetness of the shirt based on the alleged roadside spitting incident would have done Mr G   much good, it is difficult to be completely confident on this score.  Conceivably if counsel had understood that Mr G   was insisting that this explanation be advanced this would have led to a reconsideration of the question whether Mr G   should give evidence.  Conceivably cross-examination (at the hands of the police prosecutor) would not have been quite as arduous or rigorous as counsel feared.  In any event, Mr G   does have an explanation for his prior statements which could have been  given.    It  is  not  beyond  the  bounds  of  possibility that the District Court Judge may have accepted that explanation as at least raising a reasonable doubt.

[38]     Consequently, the appeal was allowed.

The Costs in Criminal Cases Act 1967

[39] Section 5 of the Costs in Criminal Cases Act 1967 provides:

5        Costs of successful defendant

(1)Where  any  defendant  is  acquitted  of  an  offence  or  where  the information   charging   him   with   an   offence   is   dismissed   or withdrawn, whether upon the merits or otherwise, or where he is discharged under section 184F of the Summary Proceedings Act

1957 the Court may, subject to any regulations made under this Act, order  that he be  paid such  sum as  it thinks just  and  reasonable towards the costs of his defence.

(2)Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—

(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.

(3)There shall be no presumption for or against the granting of costs in any case.

(4)No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn.

(5)No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[40] Under the Act, both successful defendants and successful appellants are entitled to costs. Ms Wrigley concedes that under s 5, Mr G is entitled to claim costs in respect of the charges of trespass and threatening to kill, as those charges were laid and then withdrawn. She submitted that the application of s 5 was more complicated in relation to the charge of assault. On two occasions, Mr G was convicted on that charge, but it was finally quashed at the second appeal by William Young J. In the end, Ms Wrigley conceded that in the circumstances, Mr G could, theoretically, advance a claim for costs in respect of the two defended hearings on the assault charge. I consider that is correct, subject to what I say below about the fact that he was self-represented at the first trial before Judge McKegg.

[41]     Ms Wrigley also conceded that Mr G   was potentially entitled to apply for costs in respect of both appeals, under s 8 of the Act.  That section provides:

Costs on appeals

(1)Where any appeal is made pursuant to any provision of the Summary Proceedings  Act  1957  or the  Crimes  Act  1961  the  Court  which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2)No defendant or convicted defendant shall be granted costs under this  section by reason  only of  the fact that his appeal has been successful.

(3)No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.

(4)No District Court Judge or Justice or Community Magistrate who states a case in accordance with Part 4 of the Summary Proceedings Act 1957 and no Judge who states a case shall be liable to costs by reason of the appeal against the determination.

(5)If the Court which determines an appeal is of opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.

(6)If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

[42]     I agree that Mr G   could claim costs in relation to the two appeals on which he succeeded, subject to the difficulty that he was self-represented before William Young J.

[43] It is to be noted that, under s 5(4), a costs award is not to be made by reason only of the fact that the defendant has been acquitted or discharged, or that any information charging him with an offence has been dismissed or withdrawn. Equally, however, under s 5(5), a defendant is not to be refused costs by reason only of the fact that the proceedings were properly brought and continued.

[44] Three further observations can be made at this point. First, it is clear from the wording of s 5(2) that the Court has a broad discretion as to whether or not costs should be awarded. That discretion must be exercised having regard to all relevant

circumstances, and the circumstances include those that are set out in subs (2)(a) to

(g) “where appropriate”.

[45]     The second point to note is that the power to award costs in “such sum as [the court] thinks just and reasonable” is a power exercisable “subject to any regulations” made under the Act.  The importance of the reference to the regulations5 is that they contain a maximum scale of costs.   The scale can only be exceeded in the circumstances described in s 13(3) of the Act:

Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

[46]     In R v Rust6 the Court of Appeal held that the reference to the “importance of the case” connotes objective importance in legal consequence, and did not relate to the subjective position of the applicant.  This case was not one of special difficulty, complexity or importance.  It involved the incidents earlier described and effectively only went to trial in respect of a trivial allegation of assault.   There were a small number of prosecution witnesses and the defended hearings were Judge alone cases that lasted for less than one day including the delivery of the judgment.  The matter had no importance in the sense addressed by the Court of Appeal in R v Rust.

[47]     Consequently, if the Court were minded to make an award of costs in favour of Mr G  , it would necessarily be limited to the maximum prescribed in the regulations.  Effectively, this means that any award in favour of Mr G   would be limited to a maximum of $226 per half day in respect of the appeals, $226 per half day in respect of the defended hearings and $113 per half day in respect of time occupied in Court in respect of the withdrawn charges.

[48]     But there is a further restriction which would then apply.   That is because

Mr G   acted for himself at the first defended hearing, and on the second

5 The relevant regulations are The Costs in Criminal Cases Regulations 1987.

6 R v Rust [1989] 15 CRNZ 644.

appeal.    In  accordance  with  the  Court  of  Appeal’s  decision  in  R  v  Meyrick7

Mr G   would not be entitled to claim costs in respect of those hearings.

[49]     In Meyrick, the Court referred to the definition of “costs” in s 2 of the Costs in Criminal Cases Act:

Costs means any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal.

[50]     The Court then  referred  to the Schedule to  the Costs in Criminal Cases Regulations 1987, and drew attention to the heading “Fees Payable To Barristers And Solicitors In Respect Of Proceedings Under The Crimes Act 1961”.8   The Court said at [16]:

The most obvious interpretation of the relevant provisions of the Act and Regulations is that they contemplate awards of costs to provide partial reimbursements for expenses incurred (see the definition of “costs”) by way of fees paid to barristers and/or solicitors (see the relevant heading in the schedule).  This interpretation would exclude an award of costs for any self- represented appellant, even one who is a practising lawyer.

[51]     The  same  reasoning,  of  course,  must  apply in  the  case  of  the  defended hearing at first instance.  Consequently, Mr G   could not obtain an award of costs in respect of either the defended hearing before Judge McKegg, or the appeal before Morris J.

[52]     It is apparent both from the sums to which he has referred in advancing his claim, and the nature of some of the allegations that he makes, that Mr G   does not appreciate the nature or limited scope of costs awards under the Act.  Much of his argument was such as might be advanced in the context of a damages claim for malicious prosecution, or misfeasance in public office, not a claim for costs under the Act.   Similarly, his extensive submissions and evidence about alleged inadequacies of the investigation of his complaints about the decision to prosecute are not within the ambit of the Act.  I do not intend these observations as criticisms, for Mr G   is a lay person, and I acknowledge his deep sense of grievance about the prosecution.  But it is necessary to make the point that much of what he

7 R v Meyrick [2008] NZCA 45.

said in his submissions and argument is simply not relevant to the comparatively narrow issues that now call for decision.

Should an award be made?

[53] I approach this issue in terms of the paragraphs in s 5(2) of the Act.

[54]     I begin by addressing the question of whether the prosecution acted in good faith  in  bringing,  and  continuing,  the  proceedings.    Mr G    made  various allegations against Constable Western.  He gave evidence about what he referred to as a “driver licence scam” and said that allegations he had made in that connection had affected the police attitudes towards him.   He alleged that Constable Western had campaigned against him from the start in his investigation into the licensing issue, was negligent, and had attempted to cover up and pervert the course of justice. Constable Western rejected the allegations in his affidavit, and there has been no cross-examination.  In any event, I note that Constable Western had no involvement in the investigation of the alleged “scam”.

[55]     In paragraph 11 of his affidavit of 17 November, Mr G   claims that after his arrest, he asked Constable Western “why this was happening to me”, to which  the  Constable  replied,  “three  against  one  you  lose”.    Constable  Western denied saying that.   Another complaint made by Mr G   was that Constable Western had arrested him for breach of bail when he was on bail awaiting sentencing on 8 February 2000.  Constable Western had responded to a complaint by Mr Bastin about a sign that Mr G   had erected on his property referring to Mr Bastin as “a liar, a cheat, a conman, a bully, a woman basher, a child basher, a thief, a intimidator”.  The conditions of Mr G  ’s bail required that he have no contact with Mr Bastin either directly or indirectly.  Constable Western took the erection of the sign as a breach of that bail condition and arrested him for that reason.  He was re-admitted  to  bail.     Whether  or  not  he  breached  bail  by  erecting  the  sign, Mr G  ’s allegation does not relate to the issue of whether the prosecution

8 In this case, the relevant heading uses the same language but ends with a reference to the “Summary

Proceedings Act 1957”.

acted in good faith in bringing and continuing the charges arising out of the incident of 27 June 1999.

[56]     Constable Western also responded to allegations made by Mr G   that the police had failed to investigate complaints Mr G   made about Mr Bastin entering his property and damaging trees, opening gates and placing a chair under a window to see into his home.  Constable Western said that he had not been able to locate any record of Mr G   making a complaint to police regarding those matters.  In another paragraph of his affidavit, Mr G   alleged that he had been the victim of malicious, negligent and ill-willed actions.  In context, the allegation was  possibly  made  against  the  police.     However,  the  facts  do  not  support Mr G  ’s assertion.

[57]     I have earlier set out the statements that were made by Mr Bastin and his son. They gave the police ample justification for laying the charges.   It was Constable Western’s evidence that the police withdrew the trespass charge, only because they were not in a position to disprove what Mr G   asserted about having been told by an unnamed police officer that he should serve the trespass notice on Mr Bastin personally.

[58]     The charge of threatening to kill was justified on the basis of the statements made by the Bastins.  I have already referred above to the circumstances in which it was withdrawn, following a quite extravagant attack on Mr Bastin’s credibility by senior counsel at the depositions hearing before Community Magistrates.  Mr Bastin did not want to continue with the charge as a consequence of the nature of the cross- examination.   In my view that was understandable having regard to the nature of what took place.  That does not demonstrate that the police did not act in good faith in bringing and continuing the proceeding up to the point when the charge was withdrawn.

[59]     As to the charge of assault, Mr G   was convicted twice on that charge in the District Court.  Although it is not entirely clear why he was successful on the first appeal, the wording of the judgment suggests that it may have been because of judicial or prosecutorial error in the hearing.   Neither possibility suggests that the

police lacked good faith in bringing and continuing the prosecution.  Mr G   was successful in the second appeal, but on the narrow basis that counsel failed to follow his instructions.   The decision not to proceed further was understandable given the minor nature of the offending and the resources already expended.

[60]     Constable Western was the Officer in Charge.   I do not consider that his conduct can be criticised.  I am satisfied that the prosecution acted in good faith in bringing and continuing the proceeding.

[61]     I am in no doubt either that the prosecution had sufficient evidence to support conviction of the defendant in the absence of contrary evidence, at the time when the proceeding was commenced9.  In addition to the statements of Mr Bastin and Clinton

Bastin which I set out above, the police had a statement from Mrs Bastin10  stating

that on the evening of 27 June she had heard Mr G   say to Mr Bastin, “I’ll shoot  you  in  your  fat  guts”.    She  called  to  Mr Bastin  who  came  inside  and telephoned the police.

[62]     Mr G   maintains that Mr Bastin perjured himself and lied to the police. However, he can only rely on his assertion to that effect.  The present question is not whether the Bastins’ account was correct.   I accept Ms Wrigley’s submission that Constable Western was entitled to proceed on the basis of the Bastins’ statement to the police and leave issues of credibility for the determination of the Court.  There was nothing in the Bastins’ statements that was inherently incredible or implausible.

[63]     I note also William Young J’s observation at [25] of his judgment on the second appeal that:

It  is  plain  that  there  was  evidence  before  the  District  court  which,  if accepted,  and  the  District  Court  Judge  did  accept  it,  warranted  the conclusion that there had been an assault by spitting.

9 The issue raised by s 5(2)(b) of the Act.

10 Mrs Bastin’s statement was taken on 29 June 1999, shortly after the prosecution was commenced, so technically it is not directly relevant to the issue raised by s %(2)(b).  However, that is not a point

in Mr G  ’s favour, since Mrs Bastin’s statement clearly supported those of her husband and

Clinton Bastin.

[64]     Both Mr Bastin and his son referred to the threat to kill in their statements, as did Mrs Bastin as has just been noted.  Equally, there was evidence supporting the trespass charge.  Both charges were withdrawn in the circumstances I have already addressed.  But that does not mean that the police did not have sufficient evidence to support Mr G  ’s conviction when the prosecution was commenced.

[65] The next matter that must be considered, under s 5(2)(c), is whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty. Mr G ’s stance is essentially that the police should have acted on the basis of adverse aspects of Mr Bastin’s character, and preferred Mr G ’s account of what had occurred in preference to that of Mr Bastin. However, he has not identified lines of inquiry that Constable Western should properly have followed in relation to the incident of 27 June and which might have brought the Constable to a different conclusion.

[66]     In relation to the suggestion that Mr G   had been advised by a police officer to serve the trespass notice personally on the Bastin family, the police endeavoured to ascertain who might have spoken to Mr G  .  They were unable to identify anyone who would have given that advice.  On the basis, however, that Mr G  ’s accounts could not be disproved, the police withdrew that charge.  It seems to me that this is an example of the police acting properly to investigate matters coming into their hands which suggested that the defendant might not be guilty.  Mr G   cannot demonstrate that the steps taken to investigate the matter were inadequate.

[67]     The next matter that must be considered is whether the investigation into the offence  was  conducted  in  a  reasonable  and  proper  manner.11      Nothing  in  the materials that have been drawn to my attention suggests that this was not the case. Similarly, I am satisfied that the evidence supported a finding of guilty on the charge with which the police proceeded.   The appeal succeeded, but not grounds that the evidence available would not support a finding of guilty.

11 Under s 5(2)(d).

the defendant established that he was not guilty.

[69]     That leaves for consideration12  the issue of whether the behaviour of the defendant in relation to the acts or omissions on which the charges were based, and to the investigation and proceeding, was such that a sum should be paid towards the costs of the defence.

[70]     In R v T13 Tipping J expressed the view that s 5(2)(g) related to behaviour capable of supporting an award of costs but also to behaviour which might tell against an award. He referred to authorities making relevant the question of whether the defendant, although acquitted, has to a greater or lesser extent brought the charges upon his own head. Behaviour of a defendant helpful to the application for costs would be relevant, but so would behaviour unhelpful to the application.

[71]     I have not been persuaded that there is any behaviour of Mr G  ’s which could be said to assist him in his application for costs.  On the contrary, he adopted a hostile approach from the outset and  I note in this regard  Constable Western’s evidence of Mr G   ringing him to advise that he intended to take a private prosecution against him and other members of the police for kidnapping and attempted murder.

[72] In the end, I have the distinct impression that this was a dispute between neighbours which got sadly out of hand. Mr G formed the view that the police had wrongly taken sides with Mr Bastin, and reacted accordingly. There is nothing in any of the considerations relevant under s 5(2)(g) which favours an award of costs to Mr G .

[73] I have considered whether there are matters apart from those set out in s 5(2) which would justify an award of costs in favour of Mr G . I am of the view that there are none. There is however another relevant consideration, one which favours the respondent. That is the issue of delay.

12 Under s 5(2)(g).

13 R v T [1992] 3 NZLR 215.

years after the judgment of William Young J brought the prosecution to an end.  The delay is unexplained, although it is apparent that over some of the period Mr G   was pursuing other avenues of complaint.   There is no limitation period that  affects  such  applications14.    Nevertheless,  I  consider  it  would  have  been necessary to take the delay into account were the Court otherwise conemplating making an award in Mr G  ’s favour:   there was evidence here that, in accordance with standard practice, some files that might have contained relevant material  were destroyed, six years after the decision of William Young J.

[75] As a consequence, of all these considerations, I do not consider that it will be appropriate to award costs in favour of Mr G under s 5 of the Act.

[76]     That leaves for consideration whether an award of costs should be made under  s 8  of  the  Act  in  respect  of  the  appeal  dealt  with  by  Morris J,  when Mr G   was represented by Mr Williams QC.  As I have earlier explained, an award  of  costs  cannot  be  made  in  respect  of  the  successful  appeal  before William Young J because Mr G   represented himself.

[77]     Section 8(1) simply empowers the Court to make such order as to costs as it thinks fit.  Under s 8(2), a defendant cannot be granted costs by reason only of the fact that the appeal has been successful.   In the present case, the only basis upon which Mr G   could claim costs is that the appeal was successful.  The rather conclusionary  terms  of  Morris J’s  judgment   do  not  disclose  any  additional consideration  which  might  have  favoured  an  award  of  costs  in  Mr G  ’s favour.  On the face of it, he was lucky to succeed on the appeal, and the fact that he did so did not reflect adversely on the police for bringing the charge.  In fact, Morris

J specifically noted15  that he had the assurance of Mr Williams that there was no

criticism of the police.   I am not persuaded that there is any basis upon which

Mr G   should be awarded costs in respect of the appeal.

14  See R v Geiringer [1977] 1 NZLR 7, where it was decided that an application for costs under the Costs in Criminal Cases Act is a criminal proceeding, not a civil proceeding. As a consequence the Limitation Act 1950 would not apply, because of the definition of “action” in s 2(1) of that Act.

15 At [5].

[78]     Mr G  ’s application for costs is dismissed.