Lincoln v Police

[2023] NZHC 467

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000160

[2023] NZHC 467

BETWEEN

RICHARD LINCOLN

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	9 March 2023
Appearances:	Appellant appears in Person W S Taffs for the Respondent
Judgment:	10 March 2023

JUDGMENT OF GENDALL J

Introduction

[1]    The appellant, Mr Richard Lincoln was charged with and found not guilty of assaulting Geoffrey Cavell with a blunt instrument on the basis that the prosecution had failed to prove the charge beyond a reasonable doubt. He applied for an order for costs under s 5 of the Costs in Criminal Cases Act 1967 (CCCA) on 24 February 2022.1 He sought $1,356.90 in disbursements on the grounds of purported misconduct of police, the prosecutor, registry and judiciary.2 The Crown opposed the application and said these claims were entirely without merit.

1      Mr Lincoln, it seems represented himself and the parties agreed at a teleconference on 25 March 2022 that the matter would be dealt with on the papers.

2      That schedule of costs sets out travel and accommodation expenses.

RICHARD LINCOLN v NEW ZEALAND POLICE [2023] NZHC 467 [10 March 2023]

[2]    Mr Lincoln’s application was denied on 5 May 2022 in the Christchurch District Court.3 Mr Lincoln appeals this decision. The appeal has been brought out  of time. He seeks that the Court reverses the order made in the District Court and awards all the disbursements he applied for. The Crown opposes any award and contends this appeal ought to be dismissed.

District Court decision

[3]    Judge Gilbert in the District Court was the Judge who sat on the hearing of Mr Lincoln’s assault trial. He also dealt with Mr Lincoln’s application for costs on the papers and did so with the benefit of written submissions.

[4]    In his judgment, he recorded that much of Mr Lincoln’s submissions were irrelevant to the application, and they were intemperate and inflammatory.4 The Judge stated that he understood the submissions but would not “engage with them outside of those matters that [he] consider[ed] relevant to the issue of costs in the prosecution” as to do so “would be to dignify Mr Lincoln’s rant in a way it does not deserve”.5

[5]    Judge Gilbert confirmed that he considered there was sufficient evidence for the police to charge Mr Lincoln with assault with a weapon. This included the statement from the complainant, a corroborating statement from a witness, Mr Ebben, who observed the incident, and further that Mr Lincoln made comments to police that were contrary to these statements (although he did not give a formal interview).6 The Judge noted that Mr Lincoln was found not guilty principally because the evidence Mr Ebben gave at trial differed from his previous statements to police, and the Judge could not determine what happened on the day in question as a result.7

[6]    The fact that there was a history between Mr Lincoln and Mr Cavell, the victim, and between Mr Lincoln and police he accepted did not make it inappropriate for the

3      New Zealand Police v Lincoln [2022] NZDC 7676 (per Judge T Gilbert).

4 At [5].

5 At [7].

6      At [14]–[15].

7 At [16].

charge to be laid.8 The Judge rejected Mr Lincoln’s assertion of bad faith on behalf of the police and prosecution. He concluded:

[19] In summary, in my view there is nothing in the way in which the investigation or the prosecution was conducted that would militate in favour of a grant of costs. That, of course, does not necessarily rule out such an order, but it is relevant.

[7]    Judge Gilbert also considered that Mr Lincoln’s conduct during the trial militated against an order for costs. In particular, this related, he said, to Mr Lincoln’s conduct towards Constable Murton (the officer in charge) and his responses to the prosecution in cross-examination.9 The Judge then summarised some of the observations made about Mr Lincoln’s character by Dunningham J in Lincoln v New Zealand Law Society in her Honour’s finding to uphold the decision to decline to admit Mr Lincoln to the legal profession (including passages from the appeal of Dunningham J’s judgment).10 The Judge included these passages “because they so accurately encapsulate the aggressive, bullying and unbalanced flavour of what [he] saw play out in court, along with [Mr Lincoln’s] cost submissions.”11 The application for costs was declined.12

Law

Approach to appeal

[8]    Mr Lincoln does not specify the provision under which he brings this appeal. A person affected by a decision to refuse to make a costs order may appeal the decision according to s 271 of the Criminal Procedure Act 2011. This Court may confirm, vary or set aside the decision, or make any other order it considers appropriate.13 As an appeal against a discretion, Mr Lincoln must establish that the decision involved an error of law, a consideration of an irrelevant matter or a failure to consider relevant matters, or that it was plainly wrong.14 As noted by the Supreme Court in R v Reid:15

8 At [17].

9      At [19]–[20].

10     At [22]–[23].

11 At [24].

12 At [25].

13     Criminal Procedure Act 2011, s 247.

14     R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [23]; V v R [2013] NZCA 211 at [21]–[22]; and

Hutson v R [2019] NZCA 550 at [8]–[10].

15 At [23].

An appellate court cannot hope to capture the ephemeral but significant impressions which inform the assessments and discretions of the trial judge. That is why, of course, a challenge to the exercise of discretion must demonstrate what would be termed, generally, an error of principle.

[9]    The court may grant leave to bring an appeal (such as the present appeal) out of time where it is in the interests of justice to do so in the particular case.16 The court must balance the public interest in the finality of decisions against the interests of the appellant. Other relevant factors include the strength of the proposed appeal and practical utility of the remedy sought, the length of the delay and the reasons for it, the extent of the impact on others similarly affected and on the administration of justice (a floodgates consideration), and the absence of prejudice to the Crown.17 The appellant bears the onus of satisfying the court that granting leave to appeal out of time is in the interests of justice.18

The CCCA

[10]   Section 5 of the CCCA empowers a court to award costs to a successful defendant.19 That section 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 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:

16     R v Knight [1998] 1 NZLR 583 (CA) at 589.

17     At 589.

18     R v Davis [2007] NZCA 577 at [13].

19     The court’s power to award costs under the CCCA is not limited or affected by the costs provision in the Criminal Procedure Act. Criminal Procedure Act, s 364(9).

Iwhether 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:

Iwhether 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 acquired 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.

[11]   If the court decides under s 5 to grant a costs order to a defendant and the prosecution was conducted by or on behalf of the Crown, then the costs are paid by the Chief Executive of the Ministry of Justice.20 Costs are payable against the prosecution where the court considers there is negligence or bad faith on the behalf of the prosecution.21 A self-represented litigant is not entitled to costs but can recover disbursements.22

This case

[12]   Mr Lincoln’s submissions contend that the District Court Judge erred here in that he failed to take into account relevant considerations and took into account irrelevant considerations including inadmissible evidence. His submissions can be summarised in this way, arguing that Judge Gilbert erred by:

20     Section 7(1)(a).

21     Section 7(2).

22     Herlihy v R [2020] NZCA 11.

(a)failing to engage with Mr Lincoln’s submissions related to the “bad faith” nature of the proceedings;

(b)considering “inadmissible civil judgments”, that is, Mr Lincoln’s appeals of the Law Society decision to refuse to admit him to the profession;

(c)finding there was sufficient evidence for prosecution and that the investigation occurred in a reasonable manner; and

(d)failing to consider the history of police interactions with Mr Lincoln.

[13]   The respondent submits leave should be refused to extend the time for the filing of the appeal here, on the basis that no explanation was provided for the delay, the appeal in any event is without merit and largely vexatious, and there is no public interest in the court hearing the appeal. As to the substantive appeal itself, the respondent says that costs are not warranted in light of the considerations set out in s 5 of the CCCA. That is, the prosecution was brought and continued in good faith, there was sufficient evidence to bring and continue the prosecution, the prosecution took appropriate investigatory steps in relation to matters suggesting the appellant might not be guilty of all the charges he faced and the investigation was conducted in a reasonable and proper manner.

Leave to appeal

[14]   At the outset, I need to say that I consider it would not be in the interests of justice to grant leave to appeal in this case. The costs judgment was issued on 5 May 2022. Mr Lincoln filed his notice of appeal on 25 October 2022, some five months later. He does not explain the reason for the delay in bringing the appeal nor does he justify why granting leave would be in the interests of justice. I also consider the merits of the appeal in any event are low. This is highlighted by my reasons which I outline more fully below.

Exercise of discretion

[15]   When reviewing the Judge’s exercise of the s 5 discretion to grant or refuse an order for costs, the purpose of the legislation should be kept in mind. The CCCA is a code setting out the circumstances in which the court may exercise its discretion to order costs in a criminal case. That Act is primarily compensatory in nature, achieving the appropriate balance between providing “a level of reimbursement to innocent defendants and  a  means  to  censure  improper  prosecution  conduct”.23  Most  of Mr Lincoln’s submissions focus on alleged improper prosecutorial conduct.

[16]   While I accept Mr Lincoln met the jurisdictional prerequisite of success in the criminal proceeding, he must satisfy the Court that the s 5 discretion should be exercised in his favour.24 The s 5(2) factors are intended to provide “a structure of analysis … to be adapted by the Court to the particular circumstances of the case”.25 Mr Lincoln’s submissions address several of these factors. I deal with these below.

Bad faith prosecution and evidential sufficiency

[17]   Mr Lincoln submits that Judge Gilbert failed to find that the prosecution was not taken in good faith and was used for the ulterior purpose of “taking revenge on the appellant”. Further, he suggests the Judge did not consider the failure of police to deal with Mr Lincoln’s complaints against Mr Cavell.   Related to the bad faith claim,   Mr Lincoln says that the investigation was not conducted reasonably as first, the police failed to take a statement from him; secondly, inadequately interviewed Mr Ebben for his formal written statement and thirdly, ignored evidence of the history between   Mr Cavell and Mr Lincoln.  As to evidential sufficiency,  Mr Lincoln submits that  Mr Cavell’s evidence was not credible or reliable.

[18]   Section 5(2)(a)–(d) somewhat overlap here and I address them together. As to s 5(2)(a), a finding that the prosecution has not acted in good faith may be a strong pointer that costs should be awarded.26 Related to bad faith are criteria (c) and (d)

23     Te Aka Matua o te Ture | Law Commission Costs in Criminal Cases (NZLC R60, 2000) at [4].

24     See Solicitor-General v Moore [2000] 1 NZLR 533, (1999) 17 CRNZ 671 (CA) at [31]; and R v Reid, above n 14.

25     R v Connolly (2006) 22 NZTC 19,844 (HC) at [7], affirmed in R v Reid, above n 14, at [21]–[23].

26     T v Collector of Customs HC Christchurch AP167/94, 28 February 1995 at 4 per Tipping J.

which pertain to the reasonableness of investigation. These criteria enable a court to look at the police conduct of the prosecution objectively. The applicant has the burden of establishing that the police failed to meet the standard of a reasonable prudent prosecutorial authority.27

[19]   I agree with the respondent’s submissions that Mr Lincoln’s claims of bad faith and unreasonable investigation here are unsubstantiated and hyperbolic. As an example, in the opening paragraph of his submissions for his original costs application, Mr Lincoln states:

Context is relevant to the present application. The charge against the applicant was instigated by the organisation that identifies itself as the ‘New Zealand police.’ The applicant considers that organisation to be an organised criminal group and accordingly identifies it as the ‘OCG.’

…

Mr Taffs [the prosecutor] freely chooses to wallow in the criminal injustice cesspool with the other parasitic shysters who profit off the victims of misfeasance by the OCG; therefore he accepts being a legitimate target for zealous resistance, dissent and objection.

Judge Gilbert correctly concluded in my view that he did not need to engage with many of Mr Lincoln’s submissions. Mr Lincoln’s submissions are vexatious, and they appear to have been made in what can only be seen as bad faith.   I  also reject      Mr Lincoln’s submission that the Judge did not properly deal with these allegations. While Judge Gilbert did not  engage  with  the  minutiae,  he  expressly  dismissed Mr Lincoln’s claims of bad faith on the part of the police and the prosecution authorities in the following manner:

[18] I reject the assertion that the prosecution was brought or continued in bad faith. It appeared to me that Constable Murton, as the officer in charge, discharged her duties appropriately during the investigation and in court. Similarly, Mr Taffs, who was given the unfortunate task of prosecuting the matter in Court, acted appropriately and professionally as I have come to expect of him. The various assertions Mr Lincoln makes about members of the judiciary and registry staff are simply not relevant, and are unjustified.

[20]   Relevant to the Judge’s conclusion on these points is his finding that the prosecution was commenced and continued with evidential sufficiency.28 A portion of

27     Long v Police [1996] 1 NZLR 377 (HC) at 381.

28     New Zealand Police v Lincoln, above n 3, at [14].

his conclusion relating to s 5(2)(b) of the CCCA Act is directed to the evidence available to the prosecution which he concluded was sufficient at the commencement of proceedings. In R v Morgan, this was also held to mean the evidence at the time of arrest, charge and filing of the charging document.29

[21]   Mr Lincoln appears to claim that the prosecution evidence rested solely on Mr Cavell’s account. Nevertheless, Judge Gilbert correctly recorded that the prosecution was based on that account of Mr Cavell, and on Mr Ebben’s evidence and that of the constable attending. Mr Ebben and Mr Cavell’s evidence were broadly corroborative.30 The Judge explicitly recognised the challenges with Mr Ebben’s evidence (the formal written statement later being inconsistent with the oral evidence), the history between Mr Lincoln and Mr Cavell, and the history between Mr Lincoln and the police. He concluded that “those facts do not mean it was inappropriate for the police to charge Mr Lincoln given the evidence picture with which they presented on 19 March 2021”.31

[22]   Judge Gilbert here clearly had the benefit of presiding over both Mr Lincoln’s criminal trial and his application for costs and therefore had a direct insight into the propriety of the prosecution. I am not satisfied in any way here that the Judge erred in assessing these criteria.

Ad hominem “attacks”

[23]   Next, Mr Lincoln contends that, instead of engaging with Mr Lincoln’s submissions on the improper use of the criminal justice system, Judge Gilbert simply responded “ad hominem” or personally attacked Mr Lincoln. For the reasons given above, I do not accept the Judge failed to address the submissions in a proper fashion. He did so directly. Mr Lincoln further adds that the Judge considered an irrelevant factor when referring to civil Law Society proceedings in his decision to refuse a costs order. He appears to take offence with how the Judge characterised him and says reference to the proceedings is contrary to s 50 of the Evidence Act 2006. The effect

29     R v Morgan (1990) 6 CRNZ 130 (HC) at 134.

30     New Zealand Police v Lincoln, above n 3, at [15].

31     At [16]–[17].

of this section is that the evidence of both judgments and findings of fact in civil proceedings are inadmissible if the purpose for which they are offered is “to prove the existence of a fact that was in issue in the proceeding in which the judgment was given”.

[24]   The Law Society related proceedings were raised with the Judge in the police submissions on Mr Lincoln’s costs application in response to his bad faith claims. The respondent says it was right to raise these proceedings to rebut Mr Lincoln’s characterisations of his interactions with police, the Crown and judiciary. That characterisation was that he was the target of bad faith.

[25]   Mr Lincoln’s claim here is relevant to s 5(2)(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. There have been prior conflicting High Court authorities on the aspects of a defendant’s behaviour that a court may consider. Justice Asher in Morris v Police clarified that:32

[36] The factors set out in s 5(2) are not exclusive. I  can see no reason, based on the purposes of the CCCA or the words of s 5(2)(g), to limit the consideration of behaviour to that which favours the defendant. Just as the defendant’s claim for costs will be strengthened if the defendant has been entirely open and cooperative with Police, it should be weakened if there has been a lack of openness and co-operation in the face of suspicious circumstances. A defendant seeking indemnity costs will be in a stronger position if it is shown that reasonable steps were taken on his or her part to dissuade the Police from proceeding further.

[26]   I agree with the respondent that s 50 of the Evidence Act is not engaged here. The civil judgments were not relied on to make any finding as to Mr Lincoln’s behaviour or character but were used simply as an illustrative example to “encapsulate the aggressive, bullying and unbalanced flavour of what [he] saw play out in court, along with his cost submissions”.33 The Judge did not abdicate his responsibility to determine the facts relevant to s 5(2)(g) himself.

32     Morris v Police [2013] NZHC 1336 at [36].

33 At [24].

[27]   Pursuant to s 5(2)(g), the Judge was clearly entitled to consider Mr Lincoln’s conduct during the investigation and trial for these proceedings. He expressly did so in his decision where he found that Mr Lincoln’s “conduct during the trial in relation to Constable Murton, who was a witness, was unacceptable”. Further, that “his conduct when being questioned by Mr Taffs was similarly unappealing. The nature and tone of [his] intemperate and inflammatory submissions … follow a similar vein”.34

[28]   While reference to the Law Society-related civil proceedings did not impugn s 50 of the Evidence Act, I consider that these proceedings had limited relevance. The Judge had already made findings as to Mr Lincoln’s behaviour during his assault trial. Reference to the civil proceedings was perhaps needlessly inflammatory. While of limited relevance, reference to the civil proceedings was not material to the decision. They were referred to only in relation to one factor, the Judge was required to consider under s 5(2). The Judge had previously set out other factors that militated against making a costs order in Mr Lincoln’s favour.

[29]   For these reasons, I have found no error in the Judge’s decision refusing an order for costs. Accordingly, I dismiss this appeal.

Conclusion

[30]   Leave to appeal out of time is declined, and in any event Mr Lincoln’s substantive appeal is dismissed.

Gendall J

Solicitors:

Copy to Applicant

Raymond Donnelly & Co for the Respondent

34     New Zealand Police v Lincoln, above n 3, at [21].