Herlihy v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA165/2017
[2020] NZCA 11

BETWEEN	STEPHEN HERLIHY Appellant
AND	THE QUEEN Respondent

Court:	Brown, Duffy and Peters JJ
Counsel:	Appellant in person J E Mildenhall for Respondent
Judgment: (On the papers)	11 February 2020 at 11.30 am

JUDGMENT OF THE COURT

The appellant’s application for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Following a jury trial in the District Court at New Plymouth in February 2017, Mr Herlihy was convicted of contravening a protection order by following a protected person, his ex-wife. His conviction appeal was allowed in December 2018 after it became apparent that the protection order applied only to the couple’s two children.[1] It appears that all parties had proceeded on the misapprehension that there was a protection order in place in respect of Mr Herlihy’s ex-wife.
[1]Herlihy v R [2018] NZCA 569, [2018] NZFLR 824.
Mr Herlihy, who represented himself both at trial and on appeal, now seeks costs in connection with his successful appeal. However, a self-represented litigant is not entitled to costs under the Costs in Criminal Cases Act 1967.[2]
[2]R v Meyrick [2008] NZCA 45 at [18].
Consequently, we accept Ms Mildenhall’s submission that this Court has no jurisdiction to grant Mr Herlihy’s application for costs on his appeal.[3] As a result his application for costs in this Court is declined.
[3]Any application relating to the trial is a matter for the trial court: Banks v R [2016] NZHC 1596 at [38].

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

The case of Herlihy v The Queen involved Mr Stephen Herlihy, the appellant, and the respondent, the Crown. Mr Herlihy appealed against his conviction for violating a protection order by following his ex-wife, who was the protected person. The appeal court reviewed the case based on a written submission and dismissed the appellant's application for costs associated with the appeal.

The primary legal issue was whether the appellant, who represented himself and successfully appealed his conviction, was entitled to costs under the Costs in Criminal Cases Act 1967. Given that self-represented litigants are not eligible for costs, the court had to determine if it had the jurisdiction to grant the appellant's costs application. Additionally, the court had to address whether any application concerning the trial should be directed to the trial court.

The Court of Appeal, comprising Brown, Duffy, and Peters JJ, ruled that the appellant was not entitled to costs as he represented himself. This conclusion was based on established case law, notably R v Meyrick, which held that self-represented litigants do not qualify for costs. The court also noted that any application for costs related to the trial should be made to the trial court. Consequently, the court declined the appellant's application for costs in the Court of Appeal.

No further orders were made in this appeal, and the matter concerning costs related to the trial was left to the trial court to address.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established