Herlihy v The Queen

[2020] NZCA 11

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)

1. 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.

2. 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].

3. 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