Hall v Police

[2014] NZHC 1721

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-7 [2014] NZHC 1721

BETWEEN

ROGER GRAHAM HALL

Appellant

AND

NEW ZEALAND POLICE Respondent

On the papers

Counsel:

Interim Judgment:

D Prasad for Appellant
T C Tran for Respondent

1 July 2014

Judgment:

4 August 2014

JUDGMENT OF GODDARD J

This judgment was delivered by me on 4 August 2014 at 11.00 am, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Holland Beckett, Tauranga for Appellant

Crown Solicitor’s Office, Hamilton for Respondent

HALL v NEW ZEALAND POLICE [2014] NZHC 1721 [4 August 2014]

[1]      This  judgment  concerns  an  award  of  costs  in  favour  of  the  appellant following my interim judgment of 1 July 2014, in which I granted leave to appeal out of time against a decision of the District Court not to award costs and requested a schedule of the costs incurred by the appellant to be filed.1

[2]      The reasons that led to my decision are set out in my interim judgment as follows:

[25]     There  is  little  doubt  that  this  prosecution  ought  not  to  have proceeded.   Relevant research of the legislation and case law and careful review of the prosecution file by a superior should have revealed the correct legal situation.  As discussed with counsel during the hearing, the likelihood is that the appellant’s former counsel did not himself find the case of Coupland until he began his preparation and research for the defended hearing.  It is fair to assume that is why defence counsel did not proffer the authority to the prosecution at an earlier stage.  Having said that, it was not defence counsel’s responsibility to inform the prosecution about the validity of their case.  Rather, it was for the prosecution to ensure the validity of the charge being prosecuted.   In any event, Coupland did not relate to an affirmative defence requiring notification by the defence; rather it related to an element of the offence itself.

[26]      An award of costs is clearly appropriate in this case, as conceded by the Crown. The only issue is quantum.

[27]      The criteria for exercising the Court’s discretion to exceed scale costs are set out in paragraph [16] above.  This is not a situation where the prosecution acted other than  in good  faith  but it is a  situation  where a baseless prosecution has been brought and continued in the absence of the most cursory research and a failure to responsibly review.  This is not the situation of a validly brought prosecution, where the appellant has been afforded the benefit of reasonable doubt or where witnesses have failed to come up to brief, despite thorough and conscientious preparation.

[28]     There is no reason why citizens should face charges devoid of jurisdiction and be put to the stress and expense of defending these.  While the present situation may not be any more than one of carelessness or inexperience, the appellant is entitled to be reimbursed for his out of pocket expenses at least.

[29]      It will be necessary for Mr Prasad to submit a schedule detailing the reasonable costs incurred in defending the prosecution, together with an outline of those scale charges which he says apply.

[1]      Mr Prasad for the appellant has now submitted a schedule of costs, said to detail the reasonable costs incurred in defending the prosecution, together with an

1      Hall v New Zealand Police [2014] NZHC 1508.

outline of the applicable charges.  In short, the appellant is seeking total indemnity costs of $26,162.03, plus disbursements of $1,451.94.   It is necessary to highlight some aspects of this schedule.   Solicitor fees claimed in relation to the traffic prosecution are set out in an invoice dated 21 March 2013:

Senior counsel: 11.4 hours at $375 per hour  $4,275.00

Senior counsel travel: 5.2 hours at $200 per hour  $1,040.00

Junior counsel: 25.4 hours at $160 per hour  $4,064.00

Total fee (incl GST):  $10,785.85

Reduced to:  $7,779.85

[2]      Solicitor  fees  claimed  in  relation  to  the  initial  application  for  costs  are

detailed in an invoice dated 8 October 2013:

Senior counsel: 1 hour at $375 per hour	$375.00
Junior counsel: 76.8 hours at $160 per hour	$12,663.00
Totalfee(inclGST):	$14,562.45

[3]      Counsel for the appellant submitted three further invoices for costs in relation to preparation for the appeal, appearing in the High Court and disbursements, which comes to a total sum of $4,084.67.

[4]      The Crown filed a memorandum in response submitting that the hours spent and charges  contained  in the invoice dated  21  March  2013 are excessive for a relatively low level traffic prosecution requiring two Court appearances.  The Crown suggested that “just and reasonable” costs ought to be determined with reference to the scale of costs payable to counsel for the Crown.  The Crown rate is calculated as follows:

Junior counsel: $140 per hour Intermediate counsel: $192 per hour Senior rate: $240 per hour

Travel time: $103.20 per hour

Travel rate: 73c per kilometre

[5]      The Crown submitted it would be reasonable to calculate the costs for the work undertaken at the junior rate, with two Court appearances (at 4 hours for each half day) and 7 hours preparation time.

Calculation of costs

[6] There is a general discretion given to the Court by s 5(1) of the Costs in Criminal Cases Act 1967 to order a payment of such sum as it “thinks just and appropriate” towards the cost of the defence. In R v Connolly, Fogarty J observed that the manifest scheme of the Act is not to indemnify a defendant for costs actually

incurred.2      Where  a  defendant  is  entitled  to  costs,  his  Honour  suggested  that

Parliament did not intend counsel for the defendant to be remunerated at a higher rate than the Crown, absent special circumstances.

[7]       In my previous decision I held that the appellant is entitled to be reimbursed for his out of pocket expenses.   However, the schedule of costs submitted to this Court by the  appellant  is  in  my view unjustifiable as  realistically incurred  and consequentially appears exorbitant. This was a low level prosecution under the Road User Charges Act 1977 and Regulations.  The facts were not complex and the single issue was straightforward. As Mr Prasad himself made clear, a modicum of research in  the form  of  a  cursory glance  at  Brookers  should  have  revealed the relevant precedent at an early stage and thus put paid to the prosecution before it went to a defended hearing.  While I am not shifting the onus of establishing the legal validity of the charge onto the appellant and his counsel, this prosecution and the subsequent appeal  has  never  justified  the  efforts  of  senior  counsel,  let  alone  two  defence counsel.  Nor can the defence of the charge possibly have involved the “extensive research” contended for and justifying a claim for 25 hours for junior counsel in preparation for the defended hearing (in addition to the 11.4 hours claimed for senior counsel).

[8]      The amount of costs claimed for research and preparation for the costs application and appeal from dismissal of that appear even more unreasonable.  The

law in this area is settled and the facts involved in this case simple.   It cannot

2      R v Connolly HC Auckland CRI-2004-004-988, 1 December 2005.

possibly have required the 76.8 hours claimed for research and preparation and gives rise to serious concern justifying referral of the whole bill to the Law Society.  This is not a step that the Court takes lightly and has been done after further referral back to Holland Beckett seeking justification and explanation.

[9]      In terms of disposition of the matter by the Court, I find it appropriate to apply the scale of costs suggested by the Crown.  The following costs can therefore be said to have been reasonably incurred in respect of defending the prosecution:

Counsel: 15 hours at $140  $2,100.00

Travel time: 5.2 hours at $103.20  $536.64

Disbursements: 410 kilometres at 73c  $299.30

[10]     That amounts to $2,935.94 (excluding GST).  The schedule submitted by the appellant also seeks costs incurred in claiming costs and costs in relation to bringing the appeal against the refusal of the District Court to award costs.   I consider the appellant is entitled to reasonable costs incurred in bringing the costs application. The next question is quantum.  The issues were relatively confined and the matter was determined by the District Court Judge on the papers.  On that basis it seems appropriate to award costs for a further three hours’ time at the Crown junior rate of

$140 ($420 excluding GST) plus the cost of filing the application ($740 including

GST).

[11]   The appellant has been successful on appeal.   However, the appellant’s submissions on appeal largely mirrored those filed in support of the original costs application.   Accordingly,  it is only appropriate to award the appellant costs in relation to travel for the appeal (calculated using the scale above) and for appearing in Court (1 hour).

Costs in respect of defending prosecution

Counsel  $2,100.00

Travel time: 5 hours at $103.20  $536.64

Disbursements: 410 kilometres at 73c  $299.30

Total (excl GST)  $2,935.94

Costs in respect of costs application

Counsel	$483.00
Application fee	$740.00
Total (incl GST)	$1,223.00

Costs in respect of appeal

Counsel	$140.00
Travel time: 3 hours at $103.20	$309.60
Disbursements: 212 kilometres at 73c	$154.76
Total (excl GST)	$604.36

Goddard J