L v R HC Hamilton CRI.2004-419-1602

[2005] NZHC 134

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI.2004-419-1602

S L

Applicant

v

THE QUEEN

Respondent

Hearing:         21 October 2005

Counsel:        W J Scotter for Applicant

C Bean for Respondent

Judgment:      21 October 2005

[ORAL] JUDGMENT OF WILLIAMS J

Solicitors:

Harkness Henry, Private Bag 3077 Hamilton, for Applicant

Crown Solicitor, P O Box 19-173 Hamilton, for Respondent

L V R HC HAM CRI.2004-419-1602  21 October 2005

[1] On 11, 12 and 13 October 2004 the present applicant, Mr L , was tried on one count of sexual violation by rape. On 13 October, after a retirement of a little under three hours, the jury acquitted him. This judgment deals with an application by Mr L pursuant to the Costs in Criminal Cases Act 1967 s 5 for an order that he be paid the costs of his defence.

[2]      It should immediately be noted that the costs payable in accordance with the Costs in Criminal Cases Regulations 1987 (Amendment No.1 SR1988/144) are now deplorably out of date but Mr Scotter, for Mr L  , accepts that this is not a case where a special award might be contemplated, it being not of a particularly unusual nature.

[3] The statutory background to the application appears in s 5 which relevantly reads :

(2)       Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard 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 information was dismissed on a technical point:

(f)       Whether   the   information   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  discharged or  that  any information charging him with an offence 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.

[4]      In R v Margaritis (HC Christchurch T66/88 14 July 1989 p2) Hardie Boys J, after summarising the criteria in s 5 observed:

All this really means is that the Court is to do what it thinks right in the particular case.

referring to authority to that end.   And then at p 8 the learned Judge said :

The various criteria in s 7 really come down to two questions:   Was the prosecution reasonably and properly brought and pursued?  did the accused bring the charge on his own head?

[5]      The Court of Appeal endorsed those remarks, describing them as a “valuable reminder” in Solicitor-General v Moore [2000] 1 NZLR 533, 554 and in R v Rust [1998] 3 NZLR 159 at 163 the Court of Appeal made the cautionary observation that :

Thus  though  an  award  is  discretionary  there  must  be good  grounds  for making it.

[6]      In the present circumstances, it is also of assistance to note that in R v AB [1974] 2 NZLR 425 at 432 Chilwell J said that the criteria in s 5(2)(f) did not assist in that case because no degree of further inquiry by the Police could have led to the view that no prosecution should have followed.

[7]      Essentially, although it will be necessary to consider the matter in greater detail, Mr L  ’s stance in this case is that his acquittal was inevitable and the Police

and the Crown should have recognised the near certainty of that outcome from an early stage in the inquiry.

[8]      It is necessary to turn and consider the facts which gave rise to the charge.

[9]      The complainant in the case was some 17 years older than Mr L  .  In fact not too long before the events of 29 February 2004 which gave rise to the charge, Mr L   had a relatively brief relationship with one of the complainant’s daughters. That relationship included intercourse. The evidence was that in the period after that relationship came to an end Mr L   had remained in contact mainly by text messages with  the  daughter  and  then,  when  the  daughter  objected,  with  the  complainant herself.  The suggestion was that this was an attempt on the part of the complainant to assist Mr L   to cope with his intense feelings following the cessation of the relationship.

[10]     On the evening on which the rape was alleged to have occurred, both the complainant and Mr L  , separately, had a drink or two.  They met by chance.  She said she was intending to return home.  She offered to share a taxi with Mr L   and when they reached her home she invited him in to talk about the failed relationship with the daughter.  She said the pair had coffee.  She offered to massage his neck to calm him down and did so.  Intercourse then took place between them.  Of course the complainant’s version of that episode was that the intercourse amounted to rape and she gave detailed evidence of the reasons why she took that view.

[11]     In Mr L  ’s statement to the Police and the evidence he gave at trial he acknowledged that the pair had intercourse but claimed it was consensual and was in fact initiated by the complainant.

[12]     After intercourse he left the complainant’s residence reasonably abruptly.  It seemed to be common ground she remonstrated with him for doing so and the way in which she expressed herself was the subject of cross-examination at trial.

[13]     One of the perhaps slightly unusual aspects of the trial was that in the brief period after Mr L  ’s departure, the complainant sent text messages to his mobile

telephone.  The terms of those messages were recovered by the Police from Telecom within a reasonably short period after the complaint.  They were relied on strongly by defence at the time as they were open to the inference that they were an acknowledgment by the complainant that the intercourse between the pair had been consensual and that she was upset at his abrupt departure.  She, however, in evidence at trial gave her own explanation for the text of the messages, suggesting that they were a reaction to a rape and were intended to retain the interest she had in helping Mr L   as a result of his breakup with the daughter’s relationship.

[14]     There was some other evidence which was adduced by the Crown.   That included medical evidence, which though there were no major sequelae, were consistent, so the doctor said, with the complainant’s evidence.

[15]     The jury, as earlier mentioned, took nearly three hours in their deliberations before acquitting Mr L  .

[16]     In submissions today, Mr Scotter suggested that the acquittal was “all but a foregone conclusion”, relying particularly on the text messages, the fact that the complaint was prompted rather than being spontaneous, a number of differences in the evidence as between the complainant and her daughters and her friend, and the statement that the complainant accepted she made at the time of Mr L  ’s departure along the lines of “If you leave like this then you have raped me”.  He submitted the Police had made an insufficient investigation of the matter and in particular that prior to trial, after investigation he had advised the Police that the complainant had a reputation for being a “drama queen” and making dramatic but untrue statements, that she was well known to the Hamilton Police from a period back in the past. There were other matters put forward.

[17]     Mr Scotter submitted that the Police did not take those issues far enough and should have investigated those matters including making inquiries of experienced police officers in Hamilton at the time indicated in Mr Scotter’s letter.

[18]     For the Crown Mr Bean, however, submitted that the prosecution had been brought and maintained properly.  He made the point that the Crown had at least five

categories of evidence including that of the complainant, recent complaint evidence, the fact of the previous relationship with the daughter, the medical evidence and the accused’s  statement  in  which  he  admitted  intercourse.    He  accepted  that  the additional information was given to the Police by Mr  Scotter but  relied  on the evidence of the officer-in-charge of the case as to the thoroughness of the investigation undertaken.  The Police in addition to the matters mentioned also spoke to  a  number  of  other  persons  concerning  the  propositions  put  to  them  and investigated the complainant’s evidence.

[19]     At the end of the day, the first  question is whether the prosecution took proper steps to  investigate  matters coming  into  its hands suggesting  the  present applicant  might not have been guilty.   There were matters raised by Mr Scotter outside the ambit of the prosecution but a number of those could have been put to the complainant and were not, for reasons Mr Scotter made clear today, namely, that his client might thereby have become subject to cross-examination under the Rules.

[20] The next question is whether the investigation was conducted in a reasonable and proper manner. Allied with that are the matters outlined in s 5(2)(e)(f) and (g) and, of course, subs (3) to (5) need to be taken into account.

[21]     This was a case where the prosecution faced difficulties right from the outset, for the reasons advanced by Mr Scotter.     It could not be said that this was the strongest prosecution case that one encounters.   Plainly the circumstances of the matter,  and  in  particular  such  matters  as  the  text  messages,  may  well  have constituted weaknesses in the prosecution case in the jury’s mind.

[22]     On the other hand, however, the jury took nearly three hours to acquit Mr L   of the single count he faced following only 2½ days of evidence.   Had the jury convicted Mr L  , it is most unlikely that he could have appealed successfully on the basis that the jury’s verdict was perverse or capricious or that it came within the Crimes Act 1961 s 385(1)(a) or (c).

[23]     It was a matter where, as mentioned, the Crown may have had a little less going for it than in many another a case, but it could not be said that it was a case

where conviction was not possible.   The prosecution would clearly have survived any s 347 application.   It was, in essence, a case where the evidence of the complainant  had  to  be  set  by  the  jury  against  the  evidence  of  the  defendant including, of course, the cross-examination of the complainant.

[24] It was not for the Police to judge guilt or innocence. The Police have a public role in submitting issues of this sort to a jury of the accused’s peers. They did that. Mr L was acquitted. There was probably little surprise about that given the nature of the prosecution case as outlined, but nonetheless in the Court’s view this application does not get to the point where it satisfies any of the criteria in s 5 and the application must accordingly be dismissed.

………………………………..

WILLIAMS J