Harriman v Police
[2015] NZCA 285
•6 July 2015 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA574/2014 [2015] NZCA 285 |
| BETWEEN | ALLEN LOUIS HARRIMAN |
| AND | NEW ZEALAND POLICE |
| Hearing: | 10 June 2015 |
Court: | Miller, Venning and Williams JJ |
Counsel: | T W Fournier for Appellant |
Judgment: | 6 July 2015 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
On 14 December 2007, Harrison J dismissed a Crown application for the admission of propensity evidence against Mr Harriman on a charge of importing a class B controlled drug MDMA between 2001 and 2005. Following that ruling, Harrison J discharged Mr Harriman on that count under s 347 of the Crimes Act 1961.[1]
[1]R v Harriman HC Auckland CRI-2005-004-14921, 14 December 2007.
On 12 September 2014 Fogarty J dismissed Mr Harriman’s application for the costs he had incurred in successfully defending that charge and a further representative charge of selling a controlled drug.[2] Mr Harriman’s application for costs was made under s 5 of the Costs in Criminal Cases Act 1967 (the Act). Mr Harriman appeals the dismissal of his application for costs.
Background
[2]Harriman v New Zealand Police [2014] NZHC 2213. We note that the correct respondent in these proceedings is the Queen rather than the New Zealand Police, but the respondent did not take the point.
Mr Harriman initially faced eight charges. Count 1 was a representative charge of importing an (initially) unclassified controlled drug between 1 December 2001 and 26 June 2005.[3] Count 2 was a representative charge that, between the same dates, Mr Harriman had sold a controlled drug.
[3]Later amended to identify the drug as MDMA (ecstasy).
The remaining six charges defined the drug concerned variously as a class B controlled drug MDMA or a class A controlled drug heroin.
Counts 1 and 2 were severed from the remaining charges. At the outset of trial on the remaining six charges in December 2006 Mr Harriman pleaded guilty to one charge of importing MDMA and another charge of possession of that drug for supply (counts 7 and 8). At the conclusion of the trial he was found guilty of four further counts, namely importing MDMA, conspiring to supply MDMA, conspiring to supply heroin, and possession of heroin for supply (counts 3, 4, 5 and 9).
In June 2007, a year after the charges were laid, Mr Harriman was discharged on the second count. Subsequently, Harrison J discharged Mr Harriman on the first count, which had by then been amended to a charge of importing the class B controlled drug MDMA.
The statutory framework
The costs of a successful defendant are provided for by s 5 of the Act:
(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) of this section, 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 discharged 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.
The decision under appeal
Fogarty J concluded that little turned on the discharge in relation to count 2. Shortly after this Court’s decision in R v Fonotia confirmed that there was no offence of “selling a controlled drug”[4] Mr Harriman’s case was called and that count was discharged. The focus was on the costs Mr Harriman incurred in relation to count one.
[4]R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [20].
The Crown case against Mr Harriman was circumstantial. In June 2005 he returned to New Zealand from Europe. A search of his luggage did not reveal any drugs. Over the following few weeks, however, the police recorded a number of communications between him and a co-accused Mr Dixon, which indicated he had imported 1,200 MDMA tablets and was conspiring to sell them in New Zealand. Mr Harriman was recorded as saying, after arriving back in Auckland with a substantial amount of MDMA, that it “was a better trip than the last couple of trips”. The following month Mr Harriman returned to Europe. On arrival back in New Zealand on 24 July 2005 he was searched by customs and found to have 700 MDMA tablets strapped to his body. Further investigations revealed he had hidden 63 g of heroin along with other equipment indicative of drug dealing in the boot of his car.
After referring to the Crown prosecution guidelines, particularly the requirement for evidential sufficiency, s 5 of the Act, and Harrison J’s decision, Fogarty J concluded that:[5]
[T]he evidence held by the Crown at the time they laid the indictment was sufficiently strong for the Crown counsel to have in good faith formed a judgment that they had enough evidence which, if accepted as credible by a properly directed jury, could find the defendant guilty of the first count.
The Judge found the prosecution acted in good faith in bringing and continuing the proceeding.[6]
[5]Harriman v New Zealand Police, above n 2, at [27].
[6]At [28], applying the criteria in the Costs in Criminal Cases Act 1967, s 5(2)(a).
Despite that, Fogarty J accepted that Harrison J’s judgment applied to resolve the consideration of s 5(2)(b) of the Act in favour of the defendant. Res judicata and issue estoppel applied to criminal proceedings. For that reason Fogarty J accepted that although they may have believed they did, the prosecution did not have sufficient evidence to support the conviction of the defendant in the absence of contrary evidence on the first count. However, after referring to R v Margaritis[7] Fogarty J said that:[8]
Given the presence of the other drug dealing charges and the coincidence of the unexplained trips as to any other business purpose, in my judgment the prosecution was reasonably and properly brought and pursued. … the accused brought the charge on his own head. … he never offered any alternative explanation for his trips to Vienna where it could not be proved he brought back drugs.
Notwithstanding the application of s 5(2)(b), Fogarty J did not favour exercising the discretion under s 5 to grant costs.
[7]R v Margaritis HC Christchurch T664/88, 14 July 1989 at 8.
[8]Harriman v New Zealand Police, above n 2, at [39].
Fogarty J then went on to hold that, if he was wrong and costs were otherwise appropriate, he would have made an order of 50 per cent of the invoice rendered for the services relating to the two charges, principally for the successful s 347 application.
The appeal
In his submissions for Mr Harriman, Mr Fournier submits:
(a)that the focus should be on s 5(2)(b);
(b)where, for whatever reason, a prosecution is commenced without sufficient evidence to support a conviction and a citizen is required to expend money to defend it, it would be a principled application of the discretion and consistent with the presumption of innocence and prosecution guidelines to award costs at an indemnity level;
(c)Fogarty J erred in finding Mr Harriman brought the prosecution on his own head. While that may have been true of the other charges, it cannot be correct to say that, where there was insufficient evidence to support a conviction, that prosecution had been brought about by the appellant’s conduct. It was rather a failure of the prosecutor to correctly or adequately assess the evidence.
Decision
An appeal to this Court from Fogarty J’s decision lies under s 379CA of the Crimes Act 1961.[9] The appeal is, however, against a discretion and accordingly it is for the appellant to demonstrate an error of principle.
[9]R v Connolly [2008] NZCA 548, (2009) 24 NZTC 23,305 at [51].
The starting point is that s 5(4) of the Act records that no defendant is to be granted costs by reason only of the fact that “any [charge] has been dismissed”. There must be something more. Next, in exercising its discretion the Court is entitled to have regard to all relevant circumstances, in particular (but not limited to) the considerations listed in s 5(2)(a) to (g). None of the considerations (if present) are themselves determinative.
Mr Fournier sought to support his argument by reference to the following passage of Somers J in R v CD:[10]
Pausing at this point, the several factors – (a) to (e) – so far mentioned have reference in a general way to the propriety, conduct and strength of the prosecution case. The inference I draw is that the legislature has in mind that affirmative answers may tend to inhibit or weigh against an award of costs or diminish the quantum of the same.
[10]R v CD [1976] 1 NZLR 436 (SC) at 437.
From that passage Mr Fournier seeks to submit that a negative answer to s 5(2)(b) supports and is consistent with an award of costs. However, that is only one of the criteria. As Somers J also noted, the Court has a discretion and in any particular case all or any of the factors may be rejected or given such weight as may be appropriate.[11]
[11]At 437.
The particularly relevant additional circumstances in this case are that the charges that were dismissed were part of an indictment that reflected an overall pattern of behaviour by Mr Harriman. He was able to have counts 1 and 2 severed from the indictment prior to trial, but if instead the s 347 application had been argued during the pre-trial process while all counts remained before the Court on one indictment, there could be no suggestion of an entitlement to costs. The fact Mr Harriman was able to sever off counts 1 and 2 and have them dealt with separately may have contributed to his costs, but it does not improve the merits of his claim.
Next, while Fogarty J accepted he was bound by Harrison J’s findings on propensity, a different judge determining the application could have come to a different view on the propensity argument given Mr Harriman’s pattern of travel, the intercepts (which referred to at least part of the time period relevant to count 1), Mr Harriman’s unexplained sources of money, and the physical evidence.
Importantly, while accepting the finding of Harrison J that there was insufficient evidence at the commencement of the proceedings to support a conviction, Fogarty J accepted the prosecution believed there was. Not only was the prosecution brought in good faith, but the prosecution believed there was sufficient evidence to support the charge, albeit that they relied on the admissibility of the propensity evidence, which was subsequently ruled inadmissible.[12]
[12]Harriman v New Zealand Police, above n 2, at [27].
The appellant has failed to identify an error in principle in Fogarty J’s approach. The Judge’s reference to Mr Harriman bringing it on his own head was a reference to the factors we have referred to above. The Judge fairly considered the statutory criteria applicable to the facts of Mr Harriman’s case. Section 5(2)(b) is but one of the factors to consider in the overall assessment. As the Supreme Court concluded in Reid, what weight the Judge may have given to any particular factor under s 5(2) does not engage matters of principle affecting the validity of the exercise of the statutory discretion.[13]
[13]R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [21].
The appellant has not been able to demonstrate that Fogarty J erred in the exercise of the statutory discretion under s 5.
Result
The appeal is dismissed.
Solicitors:
Christopher Morrall, Christchurch for Appellant
Crown Law Office, Wellington for Respondent
4
3
0