Hutson v The Queen - [2019] NZCA 550

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA304/2019
[2019] NZCA 550

BETWEEN	MARK PHILIP HUTSON Appellant
AND	THE QUEEN Respondent

Court:	Brown, Simon France and Hinton JJ
Counsel:	F P Hogan for Appellant M L Wong for Respondent
Judgment: (On the papers)	12 November 2019 at 12.30 pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant is to pay costs to the respondent in the sum of $7,170.

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REASONS OF THE COURT

(Given by Brown J)

Introduction

Mr Hutson was acquitted at trial on a charge of injuring with intent to cause grievous bodily harm and, by majority verdict, on an alternative charge of injuring with intent to injure. His application under s 5 of the Costs in Criminal Cases Act 1967 (the Act) for an order for payment of his costs in the sum of $23,920 was declined by Judge Menzies in the District Court at Hamilton.[1] Mr Hutson appeals against that decision.

Background

[1]R v Hutson [2009] NZDC 9991 [District Court decision].

The charges arose from what Mr Hogan for Mr Hutson described as a verbal/physical confrontation at a freedom camping layby on the Thames coastline between two elderly men, the complainant Mr Fenning and Mr Hutson. We consider that the circumstances of the incident together with the different perspectives of Mr Hutson, Mr Fenning and a witness, Justin Crow, are accurately captured in the following extract from the written submissions of Ms Wong for the Crown:
Prior to the incident giving rise to the charges against Mr Hutson, it appears he and Mr Fenning had argued briefly about Mr Fenning jogging through or on his property. Mr Hutson began to take photographs of Mr Fenning and his camper van, and Mr Fenning took exception to this. The men began to fight.
A witness, Justin Crow, gave a statement to the Police. He described punches being thrown. By the time Mr Crow reached the men, Mr Hutson was getting into the driver's seat of his car. Mr Crow said that as Mr Hutson was doing this, Mr Fenning resumed the fight and "started laying into [Mr Hutson]”. Mr Crow managed to pull Mr Fenning away and tried to talk to him, telling him to stop. He was at that time standing between Mr Fenning and Mr Hutson, with his back towards the latter.
Mr Crow said that Mr Fenning stopped being aggressive. He then saw a hammer coming over his left shoulder and strike Mr Fenning’s head. Mr Crow said that he did not think the strike was very hard “given the amount of damage that could have been done”, but he did not see the swing itself. Mr Crow then saw Mr Hutson strike Mr Fenning a “few times” more to the ribs. As he was doing it, Mr Crow heard Mr Hutson say “I’m just defending myself”.
In his statement (and subsequent Police interview), Mr Fenning said that after the initial fight Mr…

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.

Continue reading Hutson v The Queen

Details

AGLC: Hutson v The Queen [2019] NZCA 550
Case: [2019] NZCA 550
Decision Date: 12 November 2019 at 12.30 pm

CaseChat Overview and Summary

Mark Philip Hutson sought an order for the payment of his costs under the Costs in Criminal Cases Act 1967 following his acquittal on two charges. The District Court declined his application and the appellant now seeks to appeal that decision. The appeal was dismissed by the Court of Appeal of New Zealand. The appellant was ordered to pay costs of $7,170 to the respondent.

The appellant was acquitted at trial of injuring with intent to cause grievous bodily harm and injuring with intent to injure. He had been charged in relation to an altercation at a freedom camping layby on the Thames coastline between two elderly men. Hutson claimed self-defence. The Crown accepted that Hutson had been the subject of an assault but maintained that his response had been disproportionate and retaliatory. Hutson was acquitted on both charges, by a majority verdict on the second.

Hutson applied for an order for payment of his costs under the Act. The District Court declined his application. Hutson appealed against that decision. The Court of Appeal held that there was no basis on which to challenge the District Court's exercise of discretion in declining the application for costs. Hutson was not entitled to an award of costs and was ordered to pay the respondent's costs of $7,170.

Orders