Harriman v Police - [2015] NZCA 285

IN THE COURT OF APPEAL OF NEW ZEALAND

CA574/2014
[2015] NZCA 285

BETWEEN	ALLEN LOUIS HARRIMAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	10 June 2015
Court:	Miller, Venning and Williams JJ
Counsel:	T W Fournier for Appellant M L Wong for Respondent
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…

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.

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Details

Case: [2015] NZCA 285
Decision Date: 6 July 2015 at 3.00 pm

CaseChat Overview and Summary

Allen Louis Harriman appeals the decision of the High Court at Auckland, dismissing his application for the costs he had incurred in successfully defending charges of importing and selling a controlled drug. The sole issue before the Court of Appeal was whether the trial judge erred in principle in dismissing Mr Harriman's application for costs under s 5 of the Costs in Criminal Cases Act 1967. The appeal was dismissed.

Mr Harriman initially faced eight charges. Count 1 was a representative charge of importing an unclassified controlled drug between 1 December 2001 and 26 June 2005. Count 2 was a representative charge that, between the same dates, Mr Harriman had sold a controlled drug. Counts 1 and 2 were severed from the remaining charges. At the conclusion of the trial on the remaining six charges, Mr Harriman was found guilty of four further counts, namely importing MDMA, conspiring to supply MDMA, conspiring to supply heroin, and possession of heroin for supply. In June 2007, 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.

Mr Harriman appeals the dismissal of his application for costs, made under s 5 of the Costs in Criminal Cases Act 1967 (the Act). Mr Harriman's submissions focused on s 5(2)(b) of the Act, 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. Mr Fournier also submitted that Fogarty J erred in finding Mr Harriman brought the prosecution on his own head.

The Court found that Mr Harriman failed to identify an error in principle in Fogarty J's approach. 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. The Court concluded that the Judge's reference to Mr Harriman bringing it on his own head was a reference to the factors the Court had considered. The appeal was dismissed.

Orders