Krieg v Police
[2018] NZHC 1770
•17 July 2018
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-000042
[2018] NZHC 1770
BETWEEN PETER WAYNE KRIEG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 17 July 2018 Counsel:
P H Mitchell for Appellant
A R Winsley and F A M Manning for Respondent
Judgment:
17 July 2018
JUDGMENT OF COLLINS J
Introduction
[1] This judgment explains why I am dismissing Mr Krieg’s appeal from a decision of Judge Tompkins, in which he dismissed Mr Krieg’s application for costs under the Costs in Criminal Cases Act 1967 (the Act).1
[2] I am dismissing Mr Krieg’s appeal because he has failed to demonstrate that Judge Tompkins erred when he exercised his discretion not to award costs to Mr Krieg under the Act.
Background
[3] On 5 August 2017, Mr Krieg was driving a bus in Johnsonville. As he was preparing to make a right-hand turn, he moved slightly to the left to enable him to
1 New Zealand Police v Krieg [2018] NZDC 11499.
KRIEG v NEW ZEALAND POLICE [2018] NZHC 1770 [17 July 2018]
more effectively commence the turning manoeuvre and activated the right indicator. Although he checked in his mirrors, Mr Krieg did not see a motorcyclist who was attempting to overtake the bus. The motorcycle stuck the bus near the front right wheel of the bus, injuring the motorcyclist. A pillion passenger on the motorcycle was also injured.
[4] Mr Krieg was charged with careless driving causing injury.2 That charge was dismissed following a defended hearing conducted before Judge Tompkins on 20 February 2018.
[5] Judge Tompkins concluded that Mr Krieg’s actions in moving slightly to the left, activating his right-hand indicator and checking in his mirrors meant the police had failed to establish that Mr Krieg had driven carelessly. Mr Krieg then applied for costs under the Act. One of the factors relied upon in support of that application was CCTV footage obtained from cameras on the bus which showed Mr Krieg activating the right-hand indicator before the collision. That footage was made available to the police well before the defended hearing. Mr Mitchell, counsel for Mr Krieg, wrote two letters to the police before the defended hearing, pointing out defects in the prosecution case.
Costs decision
[6] In a decision dated 1 June 2018, Judge Tompkins dismissed Mr Krieg’s costs application. The Judge referred to many of the factors set out in s 5 of the Act, which provides:
5 Costs of successful defendant
(1)Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
(2)Without limiting or affecting the court's discretion under subsection (1), it is hereby declared that the court, in deciding whether to grant costs and the amount of any costs granted, shall have regard
2 Land Transport Act 1988, s 38(1), maximum penalty three months imprisonment.
to all relevant circumstances and in particular (where appropriate) to—
(a)whether the prosecution acted in good faith in bringing and continuing the proceedings:
(b)whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:
(c)whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:
(d)whether generally the investigation into the offence was conducted in a reasonable and proper manner:
(e)whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:
(f)whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:
(g)whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
(3)There shall be no presumption for or against the granting of costs in any case.
(4)No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn.
(5)No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.
[7]In his analysis, Judge Tompkins explained:
(1)This was not a case in which the police had acted in bad faith in bringing and continuing the charge because the prosecution were not activated by “personalised malice [or] ill-will towards the defendant or in some way acted unlawfully or corruptly in commencing and continuing the proceedings”.3
3 New Zealand Police v Krieg, above n 1, at [12].
(2)There was sufficient evidence at the commencement of the proceeding to support a conviction of Mr Krieg.
(3)The police took proper steps to investigate all relevant matters.
(4)The investigation by the police was conducted in a reasonable and proper manner.
[8] Judge Tompkins made clear in his decision that the central issue at the defended hearing was whether Mr Krieg’s failure to see the motorcyclist constituted carelessness. Judge Tompkins explained:
(1)The steps taken by Mr Krieg, including his activation of the right indicator were just a part of the matrix of facts at the hearing. The activation of the indicator was “not determinative” of the charge.4
(2)It was reasonable for the police to proceed on the basis that the motorcycle was “there to be seen” prior to Mr Krieg initiating the right- hand turn.5
(3)At the end of the prosecution case, an application that there was no case to answer by Mr Krieg had been dismissed because the evidence could lead to a conviction.
Judicial discretion
[9] Judge Tompkins’ decision not to grant costs under the Act involved the exercise of judicial discretion. The current appeal can therefore only be allowed if Mr Krieg demonstrates that Judge Tompkins:6
(1)erred in principle;
4 New Zealand Police v Krieg, above n 1, at [15].
5 At [15].
6 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[33].
(2)failed to take a relevant factor into account, or took into account an irrelevant factor; or
(3)his decision was plainly wrong.
Grounds of appeal
[10] Seven grounds of appeal have been advanced on behalf of Mr Krieg. It is claimed that Judge Tompkins:
(1)failed to consider all relevant circumstances, including that the motorcyclist was at fault for the accident;
(2)failed to take into account s 5(2)(e), (f) or (g) of the Act;
(3)applied the wrong test under s 5(2)(a) of the Act when concluding the police had not acted in “bad faith”;
(4)took into account an irrelevant consideration by referring to “bad faith”;
(5)failed to take into account a relevant consideration, namely that the police failed to interview the only independent eye witness to the accident;
(6)was wrong when he said the charge was laid “at the end of” August, when in fact it was laid on 15 August; and
(7)was wrong in law when he explained he found a prima facie case at the conclusion of the prosecution case.
First ground of appeal – fault of the motorcyclist
[11] Mr Mitchell submitted that Judge Tompkins failed to consider that the motorcyclist caused the accident by carrying out a dangerous overtaking manoeuvre. He further submitted that the police investigation was not reasonable in terms of
s 5(2)(d) of the Act because the officer-in-charge refused to contemplate that the motorcyclist was at fault.
[12] I am not persuaded that this submission demonstrates an error on the part of Judge Tompkins. Whether or not police should also have pursued a prosecution against the motorcyclist, they were entitled to continue the prosecution against Mr Krieg, so long as they had sufficient evidence to do so. Whether or not there was sufficient evidence was addressed fully by Judge Tompkins throughout his judgment. Judge Tompkins correctly concluded that there was sufficient evidence for the police to bring and continue the charge.
Second ground of appeal – s 5(e), (f) and (g) of the Act
[13] Section 5(2)(e) and (f) were referred to in support of the appeal, on the basis that Judge Tompkins erred by not referring to those provisions in his decision. He cannot, however, be criticised on this ground. Section 5(2)(e) of the Act was not engaged and if 5(2)(f) was relevant, then it probably weighed against an order for costs.
[14] While it is arguable that s 5(2)(g) was relevant, no criticism can be levelled at Judge Tompkins for not explicitly referring to the co-operative behaviour of Mr Krieg. Judge Tompkins’ absence of any reference to s 5(2)(g) of the Act in his decision was not material to the conclusion he properly reached.
Third and fourth grounds of appeal – bad faith
[15] Mr Mitchell has submitted that Judge Tompkins misdirected himself on the proper test under s 5(2)(a) when considering the issue of “bad faith”. He submitted the correct test is whether the police had failed to act in good faith and that the following factors supported this aspect of Mr Krieg’s application:
(1)not undertaking an independent review after obtaining the CCTV footage;
(2)attempting to lead inadmissible evidence on multiple occasions during the defended hearing; and
(3)failing to confirm at a case review hearing that the right indicator had been activated prior to the accident.
[16] Judge Tompkins did not err when considering s 5(2)(a) of the Act. None of the factors raised by Mr Mitchell support his contention that the prosecution was not commenced or continued in good faith.
Fifth ground of appeal – failure to interview the only independent witness
[17] This factor was referred to in submissions before Judge Tompkins but not specifically referred to in his decision. The police chose not to interview a witness, a passenger on the bus, because she spoke only minimal English and could not assist the police further with their inquiries.
[18] I do not consider that Judge Tompkins erred by not considering in his decision whether the police failed to act in a reasonable and proper manner when they elected not to interview the bus passenger. There was a legitimate reason for the police decision not to interview that particular witness.
Sixth ground of appeal – timing of the laying of the charge
[19] While I accept that Judge Tompkins erred in describing 15 August as “the end of” August, that minor error was clearly not material.
Seventh ground of appeal – relevance of dismissing the application for no case to answer
[20] Mr Mitchel submitted that the discretion to award costs is not fettered by an earlier dismissal of an application of no case to answer. He argued the fact a case was sufficient to continue after the conclusion of the prosecution case is not a relevant consideration under s 5(2) of the Act.
[21] My reading of Judge Tompkins’ decision is that he did not say he was precluded from ordering costs because he had found that there was a prima facie case for Mr Krieg to answer. All Judge Tompkins did was say the existence of a prima facie case reinforced his conclusion that there was sufficient evidence to continue the prosecution against Mr Krieg. The seventh ground of appeal accordingly cannot be sustained.
Conclusion
[22] The discretion afforded by s 5(1) of the Act is very wide.7 Costs are not awarded simply because the defendant has been found not guilty. There must be a legitimate basis for an award of costs against the police.8 Ultimately, the trial Court has to “do what it thinks is right in the particular case”.9
[23] In this case, Judge Tompkins clearly exercised his discretion under the Act in a fair and proper manner. It would, in these circumstances, be quite inappropriate for this Court to interfere with his decision.
[24]For these reasons, the appeal is dismissed.
D B Collins J
Solicitors:
P H Mitchell Barrister & Solicitor Ltd, Wellington for Appellant Crown Solicitor, Wellington for Respondent
7 R v AB [1974] 2 NZLR 425 (SC) at 433.
8 R v Gillespie (1993) 10 CRNZ 668 (HC) at 672.
9 R v Margaritis HC Christchurch T66/88, 14 July 1989.