M v Police HC Palmerston North CRI-2009-454-50

[2010] NZHC 1324

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2009-454-50

M

v

NEW ZEALAND POLICE

On the papers

Counsel:         Mr Gore for the appellant

Mr Murray for the respondent

Judgment:      3 August 2010

JUDGMENT OF MALLON J (Costs)

[1]      In  a  judgment  delivered  on  20  July 2010  I quashed  convictions  entered against Mr M   after a defended hearing in the District Court and declined to order a rehearing.  Mr M   had sought costs and I indicated in my judgment that I was minded to award costs to Mr M   subject to hearing from the respondent.   I have since received submissions from the respondent and reply submissions on behalf of Mr M  .

[2]      The respondent agrees that in principle costs are appropriate but raises two issues for me to consider.  The first is that Mr M   is in receipt of legal aid. The second is that Mr M   seeks costs well in excess of scale and in respect of

items that are not appropriately part of an order for costs.

M V NEW ZEALAND POLICE HC PMN CRI-2009-454-50  3 August 2010

[3] The power to order costs arises under s 8(1) of the Costs in Criminal Cases Act 1967. It is a power for the Court to make “such order as to costs as it thinks fit”. “Costs” is defined as meaning “any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal.”

[4]      Because it is defined as an expense “incurred by a party” it has been held that this does not include costs paid by the Legal Services Agency (Harrington v R [1994] 3 NZLR 272). That is because the Legal Services Agency incurs the costs, not the defendant. Mr M claims costs incurred by the Legal Services Agency in his defence ($972) and on the appeal ($1898.50), and his counsel undertakes to pay such costs to the Legal Services Agency. His counsel does not address the point that these costs have not been incurred by “a party”. In the absence of anything pointed to which distinguishes Harrington v R or any submissions that it was wrongly decided (and it is a Court of Appeal decision and so binding on me in any event)  I consider it not open to me to order costs for these items.

[5]      Costs  are  also  claimed  to  compensate  Mr  M    for  various  police actions.  He says that he was assaulted by the officers when he was arrested on the charges and he claims compensatory costs of $1000 for this.   He also claims compensatory costs of $1500 for the stress of the process, compensatory costs of

$1800 for completing his community sentence, and costs of $500 for relocating to Taupo to avoid the local police who he considered to be harassing him. I consider that none of these things are properly able to be recovered under an order for costs under the Costs in Criminal Cases Act. They are not “expenses properly incurred ... in ... carrying on a defence, or in making ... an appeal”. The amounts are in effect damages claims for police actions and if they are recoverable at all then that is not via a claim for costs on this appeal.

[6]      The  remaining  items  claimed  are  $1500  for  “[a]dditional  (unreimbursed)

costs incurred by Counsel, eg: difference between private and LSA hourly rate, at

$60/hour x 25 hours” and $100 for “additional office expenses – phone, fax, email, copying”.  In R v Harrington it was said that costs for a legally aided party could be ordered in respect of any contribution the legally aided party had been required to make or for any claim on him (or her) by his (or her) counsel for additional payments

authorised under the Legal Services Act 1991.  It appears that neither claims here fall within this category.  As I understand it, Mr M  ’s counsel is not saying that he has charged Mr M   these two amounts, but rather he is saying that the legal aid rates are less than what he would ordinarily charge and recover from non- legally aided  clients.   I therefore consider that  they are not  “expenses properly incurred by a party” (ie incurred by Mr M  ).

[7] Accordingly, although this was a situation where costs could have been ordered to a non-legally aided defendant, there are no “costs” incurred by Mr M (as defined by the Costs in Criminal Cases Act 1967) and so no order can be made. The application for costs is therefore declined.

Mallon J

Solicitors:

B Gore, Levin, [email protected]

P Murray, Ben Vanderkolk & Associates, Palmerston North, email: [email protected]