Greendrake v McConnochie - [2023] NZCA 537

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA233/2023
[2023] NZCA 537

BETWEEN	EUGENE ANTHONY GREENDRAKE Appellant
AND	WAYNE ALEXANDER McCONNOCHIE Respondent

Court:	Mallon, Moore and Palmer JJ
Counsel:	Appellant in person No appearance for the Respondent
Judgment: (On the papers)	30 October 2023 at 4 pm

JUDGMENT OF THE COURT

The appeal is allowed. The High Court costs order is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

Mr Eugene Greendrake, the appellant, failed in a private prosecution of Mr Wayne McConnochie, the respondent. The High Court awarded costs against Mr Greendrake for his failed application for leave to appeal that decision.[1] Mr Greendrake appeals against the award of costs.

What happened

[1]Greendrake v McConnochie [2022] NZHC 778 [High Court costs decision].

On 19 August 2018, Duckie and Drakie were freely and happily wandering together. They were two domestic Pekin ducks who usually enjoyed the pond on the rural property of Mr Greendrake in Nightcaps, Southland. On this occasion, they were at the entrance of part of the neighbouring farm of Mr McConnochie. They were attacked by a dog and suffered significant injuries that do not need to be recounted. Drakie was found dead in the nearby stormwater creek shortly afterwards. Duckie was found the next morning, still alive but very weak. She recovered after 12 days of veterinary assistance.
Mr Greendrake brought a private prosecution against Mr McConnochie under s 57(2) of the Dog Control Act 1996 and s 28A of the Animal Welfare Act 1999. This led to several court decisions:
(a)On 29 September 2021, there was a one-day trial in the District Court at Invercargill, where Mr Greendrake gave evidence and called four witnesses and Mr McConnochie gave evidence. Judge Walker declined an application under s 147 of the Criminal Procedure Act 2011 (the CPA) to dismiss the charges.[2] However, the Judge held that the elements of both charges were not made out and there was significant doubt about whether Mr McConnochie was the owner or possessor of the dog in question.[3]
(b)Mr Greendrake applied for leave to appeal on a question of law. On 10 June 2022, in a 101-paragraph judgment, Osborne J in the High Court declined the application, stating:[4]
[99] Ultimately it is my finding that the proposed grounds of appeal have no merit. In essence, Mr Greendrake’s complaints combine to the central proposition that the Judge reached an incorrect factual conclusion when determining that Mr Greendrake had not established it was Mr McConnochie who was in charge of the (black) dog that attacked Mr Greendrake’s ducks. That was a conclusion clearly open to the Judge on the basis of the evidence presented.
(c)On 21 December 2022, Judge Walker awarded costs of $10,000 against Mr Greendrake for the failed prosecution.[5] He could not go as far as finding a lack of good faith in bringing the proceedings, but considered Mr Greendrake “took a somewhat blinkered approach” to the prosecution.[6] He found the fact that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Greendrake v McConnochie

Details

AGLC: Greendrake v McConnochie [2023] NZCA 537
Case: [2023] NZCA 537
Decision Date: 30 October 2023 at 4 pm

CaseChat Overview and Summary

In Greendrake v McConnochie, the Court of Appeal of New Zealand considered an appeal by Eugene Anthony Greendrake against a High Court order awarding costs to Wayne Alexander McConnochie for Greendrake's unsuccessful application for leave to appeal a private prosecution. The Court of Appeal was tasked with determining whether the High Court was correct in exercising its discretion to award costs against Greendrake. The key legal issue was whether the High Court erred in awarding costs under the Costs in Criminal Cases Act 1967 (CCC Act) for the failed application for leave to appeal. The Court of Appeal examined the relevant provisions of the CCC Act and the principles guiding the award of costs in criminal appeals.

The Court of Appeal held that the High Court erred in awarding costs to McConnochie. The Court noted that under section 8 of the CCC Act, costs can only be awarded in a criminal appeal if there are good grounds, such as prosecutorial misconduct, a frivolous or vexatious appeal, or a difficult or important point of law. The Court found that Greendrake's application for leave to appeal was neither frivolous nor vexatious, nor did it involve a difficult point of law. The High Court's reasoning focused on the lack of evidence in the prosecution, which did not justify an award of costs under the CCC Act. The Court of Appeal further held that the High Court failed to consider the appropriate provisions of the CCC Act and the relevant principles guiding the award of costs. The Court concluded that the High Court's decision to award costs was wrong and quashed the costs order.

The Court of Appeal allowed the appeal and quashed the High Court's costs order.

Orders