Greendrake v McConnochie

[2023] NZHC 778

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2021-425-22

[2023] NZHC 778

UNDER

the Criminal Procedure Act 2011

IN THE MATTER

an application for leave to appeal on questions of law

BETWEEN

EUGENE ANTHONY GREENDRAKE

Appellant

AND

WAYNE ALEXANDER McCONNOCHIE

Respondent

Appearances:	E A Greendrake (Appellant) in person M R Walker for Respondent
Judgment:	6 April 2023
(Determined on the papers)

JUDGMENT OF OSBORNE J

(costs)

This judgment was delivered by me on 6 April 2023 at 9.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

GREENDRAKE v McCONNOCHIE [2023] NZHC 778 [6 April 2023]

[1] Eugene Greendrake brought a private prosecution against Wayne McConnochie in respect of charges under the Dog Control Act 1996 and the Animal Welfare Act 1999, following an attack on two ducks. Judge Walker, following a trial, dismissed the charges upon finding the elements of the trial were not made out (DC decision).1

[2]                  Mr Greendrake applied to this court for leave to appeal the District Court decision. That application was dismissed (HC decision).2

[3]                  Subsequently  the  District  Court  ordered  Mr   Greendrake   to   pay   to   Mr McConnochie costs in relation to the District Court proceeding in the sum of

$10,000 (DC costs decision).3

[4]                  Judge Walker, in making that order, found there to have been a fundamental evidential insufficiency in Mr Greendrake’s prosecution, the evidence falling “well short of the threshold to establish the charges beyond reasonable doubt”.4 The Judge observed further that the passion and vigour Mr Greendrake gave to the prosecution “overwhelmed his ability to make an objective assessment of the evidence necessary to establish the charges. These proceedings were not the appropriate mechanism to grieve his loss.”5

[5]                  The costs awarded in the District Court represented 40 per cent of the actual costs incurred by Mr McConnochie in defending the charges.

This application

[6]                  Mr McConnochie applies for an award of costs in relation to the leave application.

1      Greendrake v McConnochie [2021] NZDC 19459 [DC decision].

2      Greendrake v McConnochie [2022] NZHC 1369 [HC decision].

3      McConnochie v Greendrake [2022] NZDC 25061 [DC costs decision].

4 At [62].

5 At [63].

[7]                  The award sought is $8,365. Mr Walker, for Mr McConnochie, correctly identifies that sum as representing the calculation that would apply to an award on a 2B basis under the High Court Rules 2016.6

[8]                  Mr Walker submits that such an award is appropriate having regard to Mr Greendrake’s obduracy in his pursuit of the prosecution and the advancing of a meritless appeal.

[9]                  It was indeed  the  conclusion  reached  in  the  High  Court  decision  that  Mr Greendrake’s proposed grounds of appeal had no merit.7 The reasons for that conclusion are fully set out in the High Court decision.

[10]              Mr Greendrake has filed detailed submissions in opposition. His opposition boils down to the proposition contained in his concluding paragraph, namely that the only ground for an award advanced is that the appeal was successful, a matter insufficient as the legislation stands.

Discussion

[11]              The short answer to Mr Greendrake’s opposition is that the discretion to make an award of costs here arises not because Mr Greendrake was unsuccessful on his leave application but because his unsuccessful leave application was meritless.

[12] Judge Walker, in the District Court costs decision, correctly identified that such costs applications are governed by the Costs In Criminal Cases Act 1967 (ss 5, 7, 12 and 13) and the Costs in Criminal Cases Regulations 1980.8 His Honour identified the Court of Appeal’s decision in R v Lyttle as establishing relevant principles to the exercise of the discretion.9

[13]              This is not a situation in which there has been a finding that Mr Greendrake acted in bad faith in bringing and continuing the proceedings. But it is a case where, for the reasons analysed by Judge Walker, Mr Greendrake lacked from the outset

6      High Court Rules 2016, Category 2 under r 14.3(1) and band B under r 14.5(2)(b).

7 HC decision, above n 2, at [99].

8      DC costs decision, above n 3 at [6]–[10].

9      At [11]–[15], citing R v Lyttle [2022] NZCA 52 at [18]–[19].

sufficient evidence to support the conviction of the defendant yet pursued the prosecution and then pursued leave to appeal. The prosecution (and the leave application) did not fail for technical or marginal reasons — they failed through the significant inadequacy of the evidence.

[14]              This is a case that warrants a significant award of costs as compensation to Mr McConnochie on account of the costs he incurred.

[15]              Mr Walker has referred to Nottingham v APN News & Media Ltd as a case in which this court found assistance in the approach to costs under the High Court Rules.10 While Nottingham was a very different case, (Mr Nottingham’s applications for an extension and for leave to appeal having been found to be both frivolous and vexatious), there is assistance to be gained from considering what is to be taken to be as reasonable recovery in civil litigation here as much as in Nottingham.

[16]              Responsibly, Walker for Mr McConnochie has not sought costs in a sum that would exceed a 2B award.

[17]              That said, Mr Walker completed his calculation of a 2B award as if this proceeding had involved an appeal hearing rather than determination of an application for leave to appeal. The appropriate allowances for the latter are 0.6 days (opposition) and 1.5 days (written submissions). On that basis the 2B calculation results in a sum of $5,019.00.

[18]              Having some regard to the calculation on a 2B basis ($8,365) but also bringing the focus back to the criminal proceeding context, I consider a just and reasonable award would be $4,500.00.

10     Nottingham v APN News & Media Ltd [2018] NZHC 1004 at [29].

Order

[19]I order the applicant to pay to the respondent costs in the sum of $4,500.00.

Osborne J

Solicitors:

Preston Russell Law, Invercargill Copy to: E A Greendrake