Greendrake v McConnochie
[2023] NZHC 1414
•8 June 2023
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 s 331(5), the Court may consider the written material in any manner it thinks fit.
[9] Also relevant are the provisions of s 334 of the Act — on a full hearing, the appeal court may rehear the whole or any part of the evidence in the lower court and has the same jurisdiction and authority as the first instance court to hear and receive evidence.
[10] These powers in relation to the receipt and consideration of additional evidence exist to allow the interests of justice to be served. They do not exist for the purpose of allowing a party to effectively re-litigate an issue on the basis of evidence or other material that could and should have been provided to the first instance court to enable that court to take it into account in its decision.
[11] There are well established principles on this subject. An appellate court will hear and receive (additional) evidence on appeal if it is credible, fresh and cogent.5 The exercise of the power to rehear evidence is exercised sparingly.6
5 Naseeb v R [2021] NZCA 324, (2021) 30 CRNZ 166 at [26].
6 Jones v Police HC Palmerston North AP60/97, 12 December 1997.
Submissions
[12] For Mr Greendrake, Mr Robinson submits the documents are relevant to the central issue on appeal. Mr Robinson characterises that central issue as being:
Judge Walker wrongly assumed Mrs Renton was a permanently poor witness; this assumption generated several key conclusions that were adverse to Mr Greendrake; those conclusions were the basis of the costs order.
[13] Mr Robinson submits a conclusion on the part of the Judge that Mrs Renton was a “permanently poor witness” involved an assumption that became apparent only when the costs judgment was delivered. He submits that the affidavit Mrs Renton has now provided (and other documents) negate that assumption.
[14] He submits the cruelty complaint records show how the SPCA had significantly less evidence than Mr Greendrake had, serving to negate conclusions reached by the Judge as to a lack of prosecutorial objectivity on the part of Mr Greendrake. Mr Robinson also submits the Court had no information about why the SPCA decided not to prosecute, with the result the non-prosecution was an irrelevant consideration.
Discussion
[15] Mr Robinson incorrectly frames the Judge’s costs decision as turning on a conclusion that Mrs Renton was a “permanently poor witness”. The costs decision was a considered judgment. The Judge traversed the history of the proceedings and the submissions in detail. The Judge’s key assessment of Mrs Renton’s evidence, set out in the dismissal decision,7 and adopted in the costs decision8 was that her “age and infirmity and the health issues” evident in the course of giving her evidence should have been evident to Mr Greendrake. Those conclusions were provided in explanation of the dismissal decision. Contrary to Mr Robinson’s submission, the Judge’s costs decision did not turn on a fresh conclusion that Mrs Renton was a “permanently poor witness”. Rather it was based in part on the conclusions identified in the Judge’s dismissal decision as it related to Mrs Renton’s evidence.
7 Greendrake v McConnochie [2021] NZDC 19459 at [46].
8 McConnochie v Greendrake, above n 3, at [56].
[16] In these circumstances, none of the documents Mr Greendrake relies on is fresh. It is all material that would have been available at the time costs submissions were filed. The fact Mrs Renton’s affidavit was only recently executed does not alter the fact that the information contained in it was all information Mr Greendrake could have obtained at the time the costs submissions were prepared.
[17] This is a case illustrating the considerations of finality that are involved in the emphasis placed by the courts on the freshness of evidence to be provided on an appeal. Where the issue on appeal relates to the costs awarded in a proceeding, the expectation that parties will have provided to the court of first instance all the relevant information for the costs decision is arguably more important. Parties should expect in relation to judgments of that nature, that the requirements for credible, fresh and cogent evidence will be rigorously adhered to.
[18]The application in relation to the documents will be dismissed.
Stay of proceedings
The law
[19] The Court has an inherent power to stay enforcement of a costs order pending the determination of an appeal in relation to that order. The general rule is that a party is entitled to enjoy the fruits of a judgment in its favour.9 It is generally for the party seeking a stay to persuade the Court that, were a stay not granted, its appeal rights would be rendered nugatory.10
Evidence in support?
[20] Mr Greendrake did not file evidence in support of the stay application. There is accordingly nothing to indicate he would suffer any hardship through having to now pay the costs awarded.
9 High Court Rules, r 14.2(1)(a).
10 Philip Morris (NZ) v Liggett & Myers Tobacco Co (NZ) Ltd [1977] 2 NZLR 41 (CA).
Submissions
[21] Mr Robinson records (somewhat inconsistently with the fact Mr Greendrake makes this application) that Mr Greendrake abides the Court’s decision. That said, Mr Robinson observes:
(a)the appeal was commenced within time (8 February 2023);
(b)the time that has passed since then occurred through the Court’s steps in case management;
(c)there is no apparent urgency to “settle the monetary question”; and
(d)awaiting the result of the appeal is “most pragmatic”.
Discussion
[22] Mr Robinson’s submissions, based on “pragmatism”, ignore the principles that apply to stay applications. There is nothing to indicate Mr Greendrake’s appeal rights would be rendered nugatory through having to pay the awarded costs. It is not suggested, in the event Mr Greendrake pays the awarded costs to Mr McConnochie, that Mr McConnochie would be unable to repay them following a successful appeal.
[23] Mr McConnochie has been bearing the costs of successfully defending the charges since the trial finished in September 2021. The awarding of the costs incurred in the District Court was then delayed while Mr Greendrake pursued his appeal against the dismissal of charges. It would be unjust to defer further the period during which Mr McConnochie should await payment of the awarded costs.
[24]The application for a stay will be dismissed.
Costs
[25] Having regard to the fact this is an appeal and Mr Greendrake’s two applications (in relation to the documents for a stay) have wholly failed, there should be an order of costs in favour of Mr McConnochie. While the scale under the High
Court Rules 2016 does not apply to this proceeding as an appeal in a criminal proceeding, the allocated time under the Rules for preparation of written submissions is a useful reference point. On the basis of a 2A allocation, preparation of written submissions would be allocated 0.5 days (equating at the civil daily rate to $1,195).
[26] In the circumstances of this appeal and the two unsuccessful applications, I consider a just award of costs to be $1,000.
Outcome
[27] I dismiss the appellant’s application for the following documents to be admitted on this appeal:
(a)affidavit of Beverley Renton affirmed 2 May 2023;
(b)copy of Southern District Health Board records from 29 September 2021 to 19 October 2021; and
(c)copy of SPCA records from 29–31 August 2018.
[28] I dismiss the appellant’s application for a stay of the District Court costs decision.
[29] The appellant is to pay to the respondent the costs of the unsuccessful applications fixed in the sum of $1,000.
Osborne J
Solicitors:
Robinson Legal, Wellington
Todd and Walker Law, Queenstown
0