Lim-Kwan v Police
[2019] NZHC 1111
•20 May 2019
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-404-000102
[2019] NZHC 1111
BETWEEN NICOLE LIM-KWAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 May 2019 Appearances:
J Scott for the Appellant
M Harborow for the Respondent
Judgment:
20 May 2019
ORAL JUDGMENT OF HINTON J
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
NICOLE LIM-KWAN v NEW ZEALAND POLICE [2019] NZHC 1111 [20 May 2019]
[1] On 11 January 2019 a sentencing hearing for Rory Findlay, the defendant in this proceeding, was adjourned by Judge Jelas as a result of late filing of an application under s 106 of the Sentencing Act 2002 for an order that Mr Findlay be discharged without conviction. Judge Jelas issued a Minute dated 11 January 2019 referring to costs of $130 and subsequently made a costs order of $150.
[2] The appellant is the lawyer from the Auckland Public Defence Service who appeared for Mr Findlay. She appeals the costs order.
[3] As a preliminary point, I note that the respondent named in the appeal is the Auckland District Court. The appropriate respondent remains the opposing party in the underlying prosecution, being the New Zealand Police. Counsel for the respondent confirms that he is representing the Police.
[4] Both counsel agree that, although not express, the most natural inference from all of the circumstances (including the transcript and the Judge’s Minute of 11 January 2019) is that Judge Jelas made the costs order against counsel under s 364 of the Criminal Procedure Act 2011 (the Act). In those circumstances, I agree that Ms Lim-Kwan is the appropriate appellant.
Substantive appeal
[5] I agree with the appellant that the award of costs was in error. I note also that the respondent acknowledges it is unable to support the decision.
[6] Under s 364(2) of the Act, the Court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the Court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
[7] It seems there was a “procedural failure” by the failure to file Mr Findlay’s application for discharge without conviction in accordance with the timetable orders made by the Court. “Procedural failure” is defined in s 364(1) to include a failure to comply with a requirement imposed under the Criminal Procedure Rules 2012. In turn, r 1.5(2) of the Criminal Procedure Rules gives the Court jurisdiction to make any
directions or rulings about a matter that the Court considers “appropriate in the interests of justice”. Timetable orders such as that made in this case plainly fall within this provision.
[8] However, this “procedural failure” cannot be regarded as “significant” under s 364(2), particularly on the part of counsel. Numerous attempts had been made by the Public Defence Service to contact Mr Findlay and it had filed a memorandum, which it seems was not before the Court, nor unfortunately was that known to Ms Lim-Kwan, who appeared on the day.
[9] For the same reasons, namely the efforts made by the Public Defence Service to advance the application and the memorandum, defence counsel clearly had a “reasonable excuse” for the failure (even if the failure could be regarded as “significant”).
[10] Accordingly, in all the circumstances, Judge Jelas had no jurisdiction to make the costs order against counsel.
[11] On appeal, this Court does have jurisdiction to vary the Judge’s decision (so as to make the award against Mr Findlay).1 However, Mr Findlay’s lack of representation on the appeal clearly militates against considering that option.
[12]For the above reasons, the appeal is allowed and the costs order is set aside.
Hinton J
1 Criminal Procedure Act 2011, s 274(b).
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