Greendrake v McConnochie

[2023] NZHC 2166

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-8

[2023] NZHC 2166

BETWEEN

EUGENE GREENDRAKE

Appellant

AND

WAYNE ALEXANDER McCONNOCHIE

Respondent

Hearing:

24 July 2023

Appearances:

N M Pender for Appellant

No appearance for Respondent

Judgment:

14 August 2023

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 14 August 2023 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GREENDRAKE v McCONNOCHIE [2023] NZHC 2166 [14 August 2023]

Introduction

[1] Eugene Greendrake brought a private prosecution against Mr McConnochie following an attack, by a dog, on two of his ducks. Charges were laid under the Dog Control Act 1996 and the Animal Welfare Act 1999.

[2]    Judge Walker dismissed the charges at the conclusion of the trial in the District Court on the basis the  evidence  was  insufficient  to  prove  the  charges.1 Mr Greendrake unsuccessfully sought leave to appeal that decision from Osborne J in this Court.2

[3]Judge Walker then awarded costs in favour of Mr McConnochie in the sum of

$10,000.3

[4]Mr Greendrake appeals this decision on the basis it:

(a)relied on mistaken assumptions;

(b)overlooked relevant considerations;

(c)took into account irrelevant considerations, namely the SPCA’s decision not to prosecute;

(d)was irrational and inconsistent with previous findings; and

(e)raises an issue of public policy insofar as it could have a chilling effect on the rights of lay litigants to bring private prosecutions.

Facts

[5]    The facts of this matter have been fully covered in previous judgments, including the verdict judgment and the leave to appeal judgment of Osborne J.

1      Greendrake v McConnochie [2021] NZDC 19459.

2      Greendrake v McConnochie [2022] NZHC 1369.

3      McConnochie v Greendrake [2022] NZDC 25061.

[6]    For the purpose of this judgment, it is sufficient to say that on 19 August 2018, two of Mr Greendrake’s Pekin ducks were attacked by a dog. One duck was killed and the other severely wounded. Mr Greendrake believed the attack was carried out by the defendant’s dog as a neighbour heard a noise then saw the defendant putting his dog in his vehicle, and shortly afterwards found the dead and injured ducks. When the SPCA declined to pursue the matter, Mr Greendrake resolved to prosecute the matter himself. He then obtained evidence from a neighbour who was an eyewitness to the attack.

[7]    There was a dispute over whether the charges had been accepted for filing in the District Court, but that was resolved in an application for review heard by me.4 Mr McConnochie was served with, but did not participate in those proceedings.

[8]    In due course, the prosecution proceeded in the District Court. However, in his decision on the charges, the Judge found there were significant shortcomings in Mr Greendrake’s efforts to prove the charge. The eyewitness, an elderly lady, was not able to identify matters with great specificity, was inconsistent in relation to important facts like the type of dog she saw, was unable to identify the defendant, and had difficulty describing what she saw the dog doing. She was also short on detail on matters such as the colour of the vehicle which was present.

[9]    Several errors of law were alleged by Mr Greendrake in seeking leave to appeal from this Court. None were found to have merit. Osborne J concluded that:5

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.

[10]   Mr McConnochie in due course sought an award of costs on the unsuccessful prosecution, and it is this decision which is before me on appeal.

4      Greendrake v District Court of New Zealand [2020] NZHC 2956.

5      Greendrake v McConnochie, above n 2, at [99].

District Court decision

[11] In reaching his decision on costs following the unsuccessful prosecution, the Judge first laid out the relevant sections in the Costs in Criminal Cases Act 1967 (the CCCA) and accompanying case law.

[12]   The Judge also referred to s 364(2) of the Criminal Procedure Act 2011 (the CPA), which provides that a court may order a prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied the failure is significant and lacks reasonable excuse. The Judge noted this section was penal and aimed to ensure the efficiency of the criminal justice system.

[13]   The Judge recognised costs were not sought on a full indemnity basis and noted Mr McConnochie’s full costs totalled just over $25,000. Costs were sought in excess of scale given the special difficulty, complexity, or importance of the case.

[14]   The Judge considered Mr Greendrake had taken a “somewhat blinkered approach” to the prosecution.6 He described Mr Greendrake as having spoken to a local resident, Mr Groube (who would be a witness), and he then launched into the prosecution of Mr McConnochie before finding an eyewitness. From then on, the Judge said, Mr Greendrake closed his mind to other possible suspects. At the end of his judgment, the Judge referred to the insight Mr Greendrake’s victim impact statement gave to the passion and vigour with which he approached the prosecution, and suggested this may have affected his ability to make an objective assessment of the evidence required to establish the charges.

[15]   The Judge said Mr Greendrake should have been aware of the prospects of a successful prosecution as no other prosecutorial agency was prepared to bring a case due to the hurdle of identifying the owner of the dog to the requisite standard.

6 Above n 3, at [53].

[16]   Mr Greendrake’s key eyewitness, Mrs Renton, was focused on by the Judge. He considered that, during the trial, her age, infirmity, and health issues were evident, and it should have been clear to Mr Greendrake that his case could not reach the evidential threshold.

[17]   The Judge concluded an award of costs was appropriate. In respect of quantum, Mr Greendrake had protested as  to  technical  elements  of  invoices  of Mr McConnochie’s lawyers, which the Judge did not entertain. Those technical “failings”  were  due  to  details  having  been  edited   out   and   not   revealed  to Mr Greendrake.  The  Judge  also  rejected  other  claims  of  non-cooperation  by  Mr McConnochie and misconduct by defence counsel.

[18]   Mr McConnochie sought 40 per cent of actual costs incurred in defending the District Court prosecution, which the Judge considered reasonable.

[19]   The Judge then turned to assess whether a deterrent award was appropriate under the CPA for procedural failings by Mr Greendrake. While he said there were failings, the Judge declined to make such orders. Mr Greendrake was a lay prosecutor with no history of pursuing unmeritorious private prosecutions.

[20]Costs of $10,000 were awarded.

Principles on appeal

[21]   An appeal against a decision on costs orders is governed by sub-pt 6 of the CPA. A person affected by a decision to make or refuse to make a costs order may appeal against the decision.7 The first appeal court may confirm, vary or set aside the decision, or make any other order considered appropriate.8

[22]   Under the CCCA, the Court has discretion, subject to regulations, to order a payment that it considers “just and reasonable” towards the costs of the defence.9 Determining whether to make an order awarding costs to a successful defendant

7      Criminal Procedure Act 2011, s 271.

8      Section 274.

9 Costs in Criminal Cases Act 1967, s 5(1).

involves the exercise of a statutory discretion. The appellant bares the onus of demonstrating that an error of law or principle occurred, the Judge took account of irrelevant considerations, failed to take account of a relevant consideration or was plainly wrong.10

Submissions

Appellant’s submissions

[23]   Ms Pender, for Mr Greendrake, submits many of the Judge’s conclusions were based on his view that Mrs Renton’s evidence was clearly insufficient, and this should also have been clear to Mr Greendrake. She says that the Judge, however, failed to give  appropriate  weight   to   Mrs   Renton’s   2018   affidavit   which   identified Mr McConnochie in respect of the alleged offending. This evidence was sufficient to support a prosecution. Ms Pender’s written submissions also refer to a 2023 affidavit from Mrs Renton which explains why her health issues negatively affected her testimony. However, this evidence was the subject of an application for admission on appeal and was dismissed by Osborne J on 8 June 2023. There has been no application to adduce further evidence on this appeal, and I do not consider this evidence is relevant to the circumstances that prevailed before and at the time of the trial. Accordingly, I ignore this evidence in determining this appeal. I accept, however, that Mrs Renton’s 2018 affidavit which identified Mr McConnochie in respect of the alleged offending is relevant to the issue of whether Mr Greendrake had evidence available to him sufficient to found a prosecution.

[24]   Ms Pender also says the Judge erred in concluding Mr Greendrake engaged in blinkered decision making and was biased. He was never made aware of or came across alternative suspects or narratives. The possibility of another black Labrador being in the location at the time of the attack was not drawn to Mr Greendrake’s attention at any time prior to the hearing. While it was suggested Mr Groube had knowledge of the dog, he denied this under cross-examination.

10     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]; and Harriman v Police [2015] NZCA 285 at [14].

[25]   Ms Pender also points out that while professional prosecutors have duties to investigate the allegations fully, they also have associated powers to assist in conducting those investigations. A private prosecutor like Mr Greendrake did not have those powers and, accordingly, the suggestion that he had obligations to investigate alternative suspects or narratives should be approached with caution.

[26]   Ms Pender argues the Judge erred in concluding the case relied almost entirely on Mrs Renton’s evidence. Mr Groube’s evidence was he saw the ducks alive shortly before Mr McConnochie arrived, heard an unusual noise, then saw Mr McConnochie lock the dogs back in the crate and drive off. Shortly afterwards, he found the dead and injured ducks in the ditch and blood and internal organs on the driveway. The veterinarian’s evidence confirmed wounds consistent with a dog bite.   By itself,    Ms Pender submits this was sufficient circumstantial evidence to bring a prosecution which was later further supported by Mrs Renton’s evidence.

[27]   Counsel also points to the fact the prosecution was not dismissed ahead of or during trial. Two applications made by Mr McConnochie for dismissal of the charges were refused. The first application seeking to dismiss the charges under s 147 CPA was filed by Mr McConnochie on 27 January 2021 but was subsequently dismissed prior to hearing. There was also an application to dismiss the charges following the presentation of the prosecution case which was also dismissed. These findings that Mr McConnochie had a case to answer, Ms Pender submits, are inconsistent with the conclusion that Mr Greendrake should have realised he was running a hopeless case.

[28]   Ms Pender argues the Judge erred in putting weight on two factors which are common to private prosecutions. Firstly, that the SPCA declined to prosecute. The SPCA did not have the same information as Mr Greendrake. Further, that organisation’s decision may have been influenced by a variety of factors such as funding, capacity, perceptions of jurisdiction, internal policies, and other potential reasons. In any event, it will almost inevitably be the case that private prosecutions are taken where no prosecuting agency brings a case. Setting such a general principle would be problematic as it would make risks of adverse costs orders far greater in private prosecutions almost by default.

[29]   Ms  Pender,  for  similar  reasons,  also  rejects  the  Judge’s   criticism  of   Mr Greendrake prosecuting a matter in which he had a personal interest. The person involved may have better knowledge of the circumstances, and their “skin in the game” may prompt a prosecution where factors like resources prevent a prosecuting agency from pursuing one.

[30]   Counsel contends a costs order of $10,000 was an unwarranted penalty which may have a chilling effect on lay prosecutions. She submits costs in criminal cases generally follow significant defects in prosecution, often by public prosecutors.11 While insufficiency of evidence may be one such defect, she submits that generally follows successful s 147 applications prior to the defended hearing. In a similar vein, Ms Pender argues there was no “special difficulty, complexity, or importance” in the present case to justify exceeding scale costs under the CCCA, a matter which the Judge did not expressly assess. While there were associated judicial review proceedings, Mr McConnochie did not participate in those, and Mr Greendrake was successful there. Exceeding the statutory scale was therefore unwarranted.

[31]   Finally, while acknowledging no adverse orders flowed from the finding,   Ms Pender asks the Court to find the Judge’s statement, that there were procedural failings in the prosecution, to be without foundation. The Judge did not specify what failings occurred, and Mr Greendrake perceives the comment as potentially harmful.

Respondent’s submissions

[32]   Mr McConnochie, in an endeavour to avoid further legal costs, abides the Court’s decision. To ensure I have Mr McConnochie’s perspective on the matter, I note the submissions made on his behalf in the application for costs as summarised by Judge Walker. These are as follows:

[20]      The applicant submits, in terms of the considerations outlined in s 5(2)(a) CCCA, that there was lack of prosecutorial good faith, due to the fact that when Mr Greendrake initially sought to file charges, he was not aware of Mrs Renton’s evidence and, at that time, he had no eyewitness to the attack and drew an incorrect inference from circumstantial evidence, after which he charged Mr McConnochie; and that Mr Greendrake openly admitted, following discussion with Mr Groube, that he did not consider, at any stage,

11     Citing Bublitz v R [2019] NZCA 379; and R v Lyttle [2020] NZHC 488.

anyone other than Mr McConnochie could be responsible for the attack on his ducks.

[21]      Mr Greendrake drafted witness briefs to support his case against    Mr McConnochie, as a result of which there were several inconsistencies between the written and oral evidence.

[22]      Mr Greendrake had a lack of understanding of his role as a prosecutor and, while the Solicitor General’s prosecution guidelines do not necessarily apply to him, that he had only a fleeting understanding of his role as a prosecutor and was not aware that his role was not to “strive for a conviction”.

[23]      The  applicant  submits  that  Mr  Greendrake  set  his  sights  on   Mr McConnochie and then proceeded to build a case around him. It was also submitted that Mr Greendrake lacked prosecutorial good faith and was neither objective nor observant of the public interest and pursued a prosecution with insufficient evidence.

…

[27]      The applicant also seeks an award against Mr Greendrake, pursuant to s 364(2) CPA, directing Mr Greendrake as the prosecutor to pay a sum in respect of any procedural failure in the course of the prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.

[28]      In support of that claim the applicant says that Mr Greendrake prepared statements to fit the narrative of his prosecution case and did so in contrast with the oral evidence given by the witnesses at trial. The applicant submits this is a significant procedural failure under the CPA.

[29]      The applicant also raises other policy considerations and asked the court, in considering whether to grant costs, that the right of individuals to launch private prosecutions needs to be weighed against the right of individuals not to be unfairly persecuted through the court system, and that prosecution should not be used as “an instrument to settle misjudged grievances”.

[30]      It is submitted again that the filter that needs to be applied by all prosecutors was not engaged in this case, and as a result the applicant “has spent some four years and a significant amount of money unnecessarily engaged in defending this prosecution (and responding to an appeal). It is important such proceedings are deterred”.

[31]      In summary, the applicant says that “those engaging in prosecutions need to be acutely aware of their obligations in terms of the evidence, investigation, and good faith. Criminal prosecutions should not be used to pursue personal vendettas”.

(footnotes omitted)

Analysis

[33]Section 5 of the CCCA states:

5        Costs of successful defendant

(1)Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, 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), 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 charge was dismissed on a technical point:

(f)whether the charge 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 that any charge 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.

[34]These factors are not exhaustive.12

12     Morris v Police [2013] NZHC 1336.

[35]I also note the principles stated in R v Lyttle:13

(a)While success in the proceeding is a jurisdictional prerequisite to an application, the fact of success is neutral when the discretion whether or not to award costs is exercised.

(b)The court has a broad discretion when determining whether or not to make an award under the CCCA.

(c)The seven matters set out in s 5(2), or those that are relevant, are to be considered. The factors set out in s 5(2) are also qualified by the words “[w]ithout limiting … the court’s discretion”, so regard should be had to all relevant circumstances, and not simply those set out in s 5(2). There is a danger in narrowing relevant considerations by reference to s 5(2) or in trying to fit particular circumstances into one of the factors listed in s 5(2).

(d)The matters set out in s 5(2)(a) to (e) refer in a general way to the propriety, conduct and strength of the prosecution case. Affirmative answers might tend to inhibit or weigh against an award of costs or diminish the quantum of the same.

(e)The terms “proper steps” and “in a reasonable and proper manner” in s 5(2)(c) and (d) mean something less than would be adopted by a reasonably prudent prosecutorial authority. It is a difficult burden to surmount.

(f)The fact that a prima facie case is established at a preliminary hearing, or that a judge refuses a discharge, is likely to support the conclusion that there was sufficient evidence at the commencement of the proceeding.

(g)The matters set out in s 5(2)(g) are concerned with behaviour justifying an award, and not with behaviour disqualifying an award.

(h)Costs are not to be awarded only because the defendant has been acquitted. An applicant must be able to point to some relevant circumstances, either within the criteria, or otherwise, that justify an award.

[36]   Costs in criminal cases are not commonly awarded, and, where the defendant has been acquitted, typically rest on prosecutorial misconduct.14

[37]   I acknowledge that the Judge, having presided over the trial, was well placed to consider the strengths of the case, or lack thereof, particularly in the absence of compelling eye witness evidence from Mrs Renton. Further, in concluding

13     R v Lyttle [2022] NZCA 52 at [41].

14     W v R [2020] NZCA 283 at [15].

Mr Greendrake may have suffered from a lack of objectivity in conducting the prosecution, the Judge had the advantage of hearing how Mr Greendrake pursued the proceedings. There is no doubt Mr Greendrake’s prosecution failed as a result of significant inadequacy in the evidence on the day. However, it is difficult to see that this translates to circumstances which warrant an award of increased costs in a criminal case. Mr Greendrake’s prosecution survived two applications for dismissal of the charges. This clearly speaks to a measure of substance in the prosecution, as acknowledged by the Court of Appeal in Lyttle.15 Had the Court been of the view that there was no realistic possibility of the evidence reaching the threshold for a successful prosecution, it would have dismissed the charges prior to trial.

[38]   Further, I considered the Judge erred in placing weight on the SPCA’s decision not to prosecute and on the personal involvement Mr Greendrake had in the matter. Ms Pender raises a valid point that private prosecutions inevitably only proceed when no public prosecutor has taken the case. Further, in this case the SPCA was the potential prosecutor. There are a variety of reasons why the SPCA may not bring a prosecution. The SPCA is a non-profit charitable organisation. It has considerable resource constraints and is selective in the cases it prosecutes, prioritising cases of neglect and ill treatment of animals. That it did not pursue this prosecution is not an indictment of the merits on its own, nor is it inevitably an indication of the likely prospects of success. In addition, it declined to prosecute before Mr Greendrake secured evidence from the eyewitness Mrs Renton. Similarly, I accept Ms Pender’s submission that private prosecutions would normally be taken in circumstances where the private prosecutor has some sort of stake in the matter. That, too, without more, would not warrant an award of costs.

[39]   However, I accept the Judge’s observation that Mr Greendrake “took a somewhat blinkered approach” to this prosecution, and this could be a circumstance warranting an award of costs under the CCCA. The question then becomes whether there is a legal basis for ordering costs in excess of scale costs as imposed by the regulations. Several decisions have recognised that the reality is the scale costs have

15     R v Lyttle, above n 13, at [41(f)].

not been regularly revised and are hopelessly out of date.16 There must nevertheless be a basis for departing from the scale. Costs beyond that permitted by the regulations may only be ordered if the Court “is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.17 They can not be awarded simply on the basis it is perceived to be fair in light of the costs involved to defend the prosecution.

[40]   This case did not, in my opinion, involve special difficulty or complexity, nor does the Judge identify that it did. Mr McConnochie did not participate in the judicial review proceedings, and the case itself was a straightforward, one-day hearing with a small number of witnesses.

[41]   In terms of whether it was a case of “special importance”, there is no statutory definition of this term. The High Court in Yoon v K upheld a District Court decision that a private prosecution brought in bad faith, for collateral purpose, and involving such a defect in the evidence that it was thrown out at a preliminary hearing for want of a prima facie case, was of sufficient special importance requiring a deterrent element to the judgment that scale costs could be exceeded.18

[42]   In the case of Davidson v Rogerson,19 which also involved a private prosecution, the Court upheld a finding that Mr Davidson had acted in bad faith in bringing the prosecution as he had a collateral purpose in its pursuit. There was also an insufficiency in the evidence and its cogency, leading to the case being dismissed at a preliminary hearing. Citing Yoon, indemnity costs were awarded.

[43]   Judge Walker acknowledged at [53] of the costs decision that there was not a lack of good faith by Mr Greendrake in bringing the prosecution, and from my involvement in the early stages of the proceedings I concur with that conclusion. Furthermore, the case was not so unmeritorious as to be dismissed at a preliminary stage. As such, I do not consider this case is one of special importance requiring a

16     R v Bublitz [2018] NZHC 373 at [59], citing Registrar of Companies v Feeney HC Auckland CRI-2011-404-14, 21 June 2011.

17 Costs in Criminal Cases Act, s 13(3).

18     Yoon v K HC Auckland CIV-2008-404-1141, 28 August 2008.

19     Davidson v Rogerson HC Whanganui CRI-2008-083-500354, 1 April 2009.

deterrent order to be made. Therefore, there is no basis for exceeding maximum scale costs which, pursuant to the Criminal Cases Regulations 1987, are $452. The inadequacy of those costs is not a matter the Courts can address by ignoring or distorting the statutory criteria for making an increased award.

[44]   I turn now to the issue of the Judge’s apparent finding that procedural failings had occurred. In recording the respondent’s submissions on the application, the Judge noted they alleged procedural failures by way  of witness statements prepared by   Mr Greendrake which did not fit the evidence those witnesses gave at trial. However, when the Judge observed that Mr Greendrake’s prosecution had involved procedural failings, he did not specify what procedural failings had occurred or whether he accepted Mr McConnochie’s position on the matter.

[45]   A procedural failing “means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act”.20

[46]The passage of the judgment which deals with this issue reads as follows:

[57]…  I do not consider it necessary to make a deterrent award against   Mr Greendrake for procedural failings under the CPA. While there were procedural failings, Mr Greendrake was a lay prosecutor … As far as I am aware Mr Greendrake has no history of pursuing unmeritorious private prosecutions and I do not consider that making an award of costs against him under the CPA will have any deterrent effect on any other person who may wish to pursue a private prosecution that has evidential insufficiency.

[47]   It seems to me the Judge was suggesting that the evidential insufficiency could amount to a procedural failing under the CPA justifying an award of costs. If so, I do not agree. As already noted, there was sufficient evidence based on the statements filed for the proceedings to survive applications for dismissal under s 147 CPA. The fact the key eye witness did not come up to brief, by some margin, on the day, can happen in any trial. It is not evidence of a procedural failing.

20     Criminal Procedure Act, s 364.

[48]   For these reasons, I accept there was no basis to suggest an award of costs could have been available under the CPA for procedural failings, although I acknowledge, of course, that the Judge did not rely on this for the award of costs he made.

[49]   Accordingly,  the  appeal  is  allowed  in  part.   The  costs  order  against    Mr Greendrake is quashed. In its place is an order to pay costs totalling $452.00.

Solicitors:
Robinson Legal, Wellington

Copy to:

N M Pender, Barrister, Wellington Respondent