Kane v Police HC Christchurch CRI-2011-409-40

[2011] NZHC 1276

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-40

BETWEEN  STEVEN PAUL KANE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 October 2011 (by telephone) (Heard at Auckland)

Counsel:         Appellant in Person

T MacKenzie for Respondent

Judgment:      12 October 2011

JUDGMENT OF WHATA J ON RECALL OF JUDGMENT

This judgment was delivered by Justice Whata on

12 October 2011 at 9.30 a.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Raymond Donnelly & Co., Crown Solicitors, PO Box 533, Christchurch 8140

Copy to:

S P Kane, 262 Centaurus Road, St Martins, Christchurch 8022

KANE V NEW ZEALAND POLICE HC CHCH CRI-2011-409-40 12 October 2011

[1]      In my judgment dated 2 August 2011, I allowed Mr Kane’s appeal against conviction on careless use of a motor vehicle, but ordered that he pay costs in the sum of $950 given my assessment that he may have been gaming the system.

[2]      The matter has been brought back to me via a minute of Toogood J dealing with the application for leave to appeal my costs order on the basis, among other things, that I did not afford an opportunity to the parties to be heard on the question of costs.

[3]      In my minute dated 4 October 2011, I accepted that I should have allowed an opportunity for the parties to be heard and that the failure to do so rendered my judgment on the costs order a nullity.   I considered that that provided a basis for recall.[1]

[1] Referring to Butterfield v R [1997] 3 NZLR 760.

[4]      I then conferred with Mr Kane and Mr MacKenzie for the respondent.   It transpired that the Crown, while acknowledging the clear policy issue, does not seek costs.   Mr Kane then stressed to me that it was never his intention to game the system.  Rather, he found himself in a catch 22 situation and acted on advice that procedural irregularity meant that he was not required to attend the Court.

[5]      I indicated that I remained concerned with how events unfolded, but I was prepared to accept his indication that he did not intend to game the system.

[6]      Initially, I was minded simply to direct that the costs order not be enforced. But on reflection, consistent with the principle of open justice, I have resolved that firstly, my judgment should be recalled given the procedural error;  and secondly that I make no order as to costs, given the somewhat unusual circumstances, including the fact that the Crown does not seek costs.

[7]      Nevertheless, while I make no costs award, the Court will carefully scrutinise the  behaviour  of  appellants  in  circumstances  where  appellants  knowingly avoid attending  Court,  in  the  hope  that  procedural  irregularity  may  avoid  conviction.

Appellants that game the system should not expect to be treated light handedly, even

if they are successful on their appeal due to procedural irregularities.  In this case, however,  Mr Kane has  satisfied  me that  was  not  his  intention  and  overall  it  is appropriate that no costs order be made.

[8]      Accordingly, I direct that:

(a)       My judgment on costs be recalled;  and

(b)      There be no order of costs.

Whata J