Harriman v Police - [2014] NZHC 2213

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-004-14921 [2014] NZHC 2213

BETWEEN
ALLEN LOUIS HARRIMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 2 September 2014

Counsel:

TW Fournier for Appellant
MR Harborow for Respondent

Judgment:

12 September 2014

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 12 September 2014 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Christopher Morrall, Christchurch
Meredith Connell, Auckland

HARRIMAN v POLICE [2014] NZHC 2213 [12 September 2014]

Introduction

[1] Mr Harriman seeks an award of costs of $7,723.13 incurred by him in successfully defending two representative charges of importing a controlled drug and selling a controlled drug to persons unknown.

[2] On 21 June 2006, the Crown Solicitor at Auckland laid an indictment against

Mr Harriman of nine charges. The first two charges were as follows:

1 THE CROWN SOLICITOR AT AUCKLAND charges that ALLEN LOUIS HARRIMAN between 1 December 2001 and 26 June 2005, at Auckland, imported into New Zealand a controlled drug.

REPRESENTATIVE CHARGE

2 THE said Crown Solicitor further charges that ALLEN LOUIS HARRIMAN between 1 December 2001 and 26 June 2005, at Auckland and elsewhere within New Zealand, did sell a controlled drug to a person or persons unknown.

REPRESENTATIVE CHARGE

[3] The remaining seven charges were more orthodox in that the drug concerned was defined as “a class B controlled drug MDMA” or “a class A controlled drug heroin” or “a class A controlled drug methamphetamine”.

[4] In June 2007, count 2 was discharged under s 342(1) of the Crimes Act 1961 on the basis that the account did not disclose an offence in law.

[5] On 14 December 2007, Harrison J discharged Mr Harriman on the first count, by this stage amended informally to being a count of importing MDMA (ecstasy).1

[6] These two counts had been severed from the trial indictment as originally laid because they were variously subject to ss 344A and 347 applications.

[7] At the time of the laying of the indictment, the prosecutors were subject to the Prosecution Guidelines of 1992. These set out two considerations for deciding

1 R v Harriman HC Auckland CRI-2005-404-14921, 14 December 2007.

when to prosecute: an evidential threshold test and a public interest consideration. As to the evidential threshold test, the guidelines provide:

3.1 Evidential Sufficiency

The first question always to be considered under this head is whether the prosecutor is satisfied that there is admissible and reliable evidence that an offence had been committed by an identifiable person.

The second question is whether that evidence is sufficiently strong to establish a prima facie case; that is, if that evidence is accepted as credible by a properly directed jury it could find guilty beyond reasonable doubt.

[8] That test is essentially the same test for s 347 of the Act. It would be clearly improper for the prosecution to lay a charge incapable of being proved beyond reasonable doubt.

[9] Section 5 of the…

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: [2014] NZHC 2213
Decision Date: 12 September 2014

CaseChat Overview and Summary

Allen Louis Harriman sought an award of costs incurred in defending two representative charges of importing and selling a controlled drug. The charges were dismissed by the High Court. The court considered whether the Crown had sufficient evidence to support the conviction of the defendant at the commencement of the proceedings. The court found that the Crown had acted in good faith and had sufficient evidence to support the conviction, but the charges were dismissed on a technical point. The court also considered whether the prosecution was reasonably and properly brought and pursued, and whether the accused brought the charge on his own head. The court found that the prosecution was reasonably and properly brought and pursued, and that the accused brought the charge on his own head. Therefore, the court did not favour exercising the discretion under s 5 to grant costs. The court also considered the quantum of costs and found that the court would be entitled to exercise the power granted in this context in s 13(3) to make an order in excess of the scale of costs, but it would not move from the scale allowed in the regulations under this Act to indemnity costs. The application for costs fails, and there is no order for costs.

Orders