Greendrake v McConnochie - [2023] NZHC 1414

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2023-425-008

[2023] NZHC 1414

UNDER the Criminal Procedure Act 2011 and the Costs in Criminal Cases Act 1967

IN THE MATTER

of an appeal against a costs order

BETWEEN

EUGENE ANTHONY GREENDRAKE

Appellant

AND

WAYNE ALEXANDER MCCONNOCHIE

Respondent

Appearances:
M G Robinson for Appellant

M R Walker and B W D Alexander for Respondent

Judgment:

8 June 2023

(Determined on the papers)

JUDGMENT OF OSBORNE J

[1] Eugene Greendrake, the appellant, brought a private prosecution against Wayne McConnochie, the respondent. Judge R J Walker dismissed the charges at the conclusion of the trial.1 Mr Greendrake unsuccessfully applied to this Court for leave to appeal the District Court decision.2

[2] Judge Walker subsequently awarded costs ($10,000) in favour of Mr McConnochie.3

1      Greendrake v McConnochie [2021] NZDC 19459.
2      Greendrake v McConnochie [2022] NZHC 1369.
3      McConnochie v Greendrake [2022] NZDC 25061.

GREENDRAKE v MCCONNOCHIE [2023] NZHC 1414 [8 June 2023]

[3] Mr Greendrake has appealed against the costs order and seeks an order that the costs order be stayed pending the outcome of the appeal.

[4] By this Judgment I determine on the papers (as requested by counsel) an application of Mr Greendrake to admit as evidence on the appeal:

(a)an affidavit of Beverley Renton, affirmed 2 May 2023;

(b)Health Board records relating to Mrs Renton from September to October 2021; and

(c)a cruelty complaint summary record relating to a complaint made by Mr Greendrake in August 2018.

(collectively “the documents”).

[5] Mr Greendrake seeks leave for the documents to be admitted in evidence on the appeal.

The awarding of costs in the District Court

[6]The steps leading to the District Court’s award of costs were:

(a)Mr Greendrake’s prosecution failed because the Judge found the prosecution evidence fell “well short of the threshold to establish the charges beyond reasonable doubt”;4

(b)Mr McConnochie then applied for an award of costs under the Costs in Criminal Cases Act 1967. Costs were determined on the basis of written submissions for Mr McConnochie and by Mr Greendrake. Both parties had the opportunity to put before the Court any additional material relevant to the issue of costs; and

4 McConnochie v Greendrake, above n 3, at [62].

(c)the submissions filed for Mr McConnochie squarely addressed the lack of evidential sufficiency for the prosecution, the extent to which Mr Greendrake had relied on the evidence of Mrs Renton, and inconsistencies identified between witness briefs drafted by Mr Greendrake and the oral evidence given at trial.

The admission of evidence on appeal

The law

[7]This appeal is governed by the Criminal Procedure Act 2011.

[8] As an appeal against a decision on a costs order, it is governed by sub-pt 6 of pt 6 of the Act. In the event the appeal is dealt with on the papers, s 331 will apply. Under s 331(2)(a) the parties may include in their submissions additional relevant written material and, under…

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] NZHC 1414
Case: [2023] NZHC 1414
Decision Date: 8 June 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Eugene Anthony Greendrake, the appellant, appealed against a costs order awarded to Wayne Alexander McConnochie, the respondent, by Judge R J Walker. The initial private prosecution by Mr Greendrake against Mr McConnochie was dismissed by Judge Walker, who found the prosecution evidence insufficient to establish the charges beyond reasonable doubt. Following the dismissal, Judge Walker awarded $10,000 in costs in favour of Mr McConnochie. Mr Greendrake sought to appeal the costs order and requested that the order be stayed pending the outcome of the appeal. Additionally, Mr Greendrake sought leave to admit certain documents as evidence on the appeal, including an affidavit from Beverley Renton, Health Board records, and a cruelty complaint summary record.

The court considered whether the documents Mr Greendrake wished to introduce on appeal were credible, fresh, and cogent, as required by established legal principles. The court found that the documents were not fresh, as all the information contained within them would have been available to Mr Greendrake at the time the costs submissions were filed. Therefore, the application to admit the documents as evidence on the appeal was dismissed. The court also considered the application for a stay of the District Court costs decision, noting that there was no evidence to suggest that Mr Greendrake's appeal rights would be rendered nugatory if the stay was not granted. The court dismissed the application for a stay, finding it unjust to further delay the period during which Mr McConnochie should await payment of the awarded costs.

In conclusion, the court dismissed both the appellant's application to admit certain documents as evidence on the appeal and the application for a stay of the District Court costs decision. The appellant was ordered to pay the respondent the costs of the unsuccessful applications, fixed in the sum of $1,000.

Orders