M v The the Queen
[2022] NZHC 529
•21 March 2022
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S)
PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CRI-2020-006-000927
[2022] NZHC 529
M v
R
Hearing: 3 March 2022 Appearances:
M Zintl for the Applicant
M O’Donoghue for the Crown
Judgment:
21 March 2022
JUDGMENT OF GRICE J
(Costs)
Introduction
[1] Mr M applies for costs following his acquittal after a trial in the High Court in Nelson. The charges were based on historic sexual abuse claims. The two
M v R [2022] NZHC 529 [21 March 2022]
complainants are sisters (Complaints A and B). They were children at the time of the offending but at the time of trial were adults.
[2] The trial ran from 22–26 and 29–30 November 2021. Following the closing of the Crown’s case, Mr Zintl, for the defendant, made an application under s 147 of the Criminal Procedure Act 2011 (the CPA) for the dismissal of the charges.
[3] The Crown had called both complainants and their video evidential interviews were played as evidence-in-chief. In addition, the Crown had called the police officers who carried out the interviews, one of whom was the officer-in-charge.
[4] As I recorded in my ruling on the unsuccessful s 147 application, it was largely centred on a submission that evidence of collusion was strong. This coupled with the historic nature of the offending and that the complainants had motives to lie, the submission was that it would be unsafe for a jury to convict. I dismissed the application on 26 November 2021 and the reasons followed.1
[5] Following the dismissal of that application, the defence opened and called evidence. In addition to the defendant, Mr M, giving evidence, he called the children’s mother (Mr M’s wife) and the complainants’ brother, JS.
[6] The jury acquitted on all charges on 30 November 2021. It unanimously acquitted Mr M on the 5 charges relating to Complainant A and acquitted him by majority verdicts on the 9 charges relating to Complainant B.
[7] Mr M applies for full indemnity costs of $65,939.65 under s 5 of the Costs in Criminal Cases Act 1967 (the CCCA). He also applies for $10,000 costs pursuant to s 364 of the CPA for procedural failure by the Crown or police. The failure was the non-disclosure of a recorded telephone conversation between Complainant B and her mother.
1 R v M CRI-2020-006-000927, 28 January 2022 [Ruling of Grice J (reasons)] at [5].
Basis of claims
[8]The claims under the CCCA were summarised in oral submissions as follows:
(a)The Crown should not have continued with the trial, following the s 147 application
(b)The Crown acted in bad faith.
(c)The Crown failed to disclose the recorded telephone message.
(d)The Crown failed to investigate and call witnesses it knew and should have called, in particular, the mother and the complainants’ brother, who were called by the defence.
The law
[9] Section 5(1) of the CCCA allows the Court a discretion to order payment to a successful defendant in “such sum as it thinks just and reasonable towards the costs of [their] defence.” The defendant must have been acquitted of the charge or the charge dismissed or withdrawn, whether upon the merits or otherwise.
[10]Section 5 further provides:
5 Costs of successful defendant
…
(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:
(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.
[11] Unlike civil cases, there is no overriding principle that ordinarily “costs follow the event”.2 The inquiry is as to “whether to grant costs”.3
[12] The principal difference between the granting of costs in civil and criminal matters is that a plaintiff in a civil action brings the action for their own ends and their own benefit, therefore, they should pay the cost if they lose.4 In contrast, “[a] prosecutor brings proceedings in the public interest, and so should be treated more tenderly.”5
[13] In criminal matters ordinarily costs will not be given and “something special is required to warrant an award”.6 Hardie Boys J in R v Margaritis noted that the consideration set out in s 5(2) meant that “the Court is to do what it thinks right in the particular case”.7
[14]I now consider the circumstances giving use to the claim for costs.
2 R v AB [1974] 2 NZLR 425 (SC) at 433.
3 At 433.
4 Berry v British Transport Commission [1962] 1 QB 306 (CA) at 327 per Devlin LJ.
5 At 327.
6 R v W HC Timaru T980940, 1 March 1999 at 9.
7 R v Margaritis HC Christchurch T66/88, 14 July 1989 at 2.
Application to dismiss charges (s 147 application)
[15] The defendant faced 14 charges of historic sexual abuse. In relation to Complainant A, there were four charges of indecent assault on a child under the age of 12 and one of sexual violation. These representative charges covered a period from 2003 to 2006. At the time of trial, the complainant was 27 years of age.
[16] In relation to Complainant A’s sister, Complainant B, there were 14 charges. These included five of indecent assault on a child under 12 years and three charges of sexual violation by unlawful sexual connection. Twelve charges were representative, covering a period from 2004 to 2008. Complainant B was, at the time of trial, 26 years of age.
[17] Both complainants gave evidence-in-chief by way of videoed evidential interviews.8 The Crown called the police officers who carried out the interviews, one of whom was the officer-in-charge. A statement of admitted facts was produced under s 9 of the Evidence Act 2006. That related to what is generally referred to as “counterintuitive” material relating to the behaviour of sexually abused children in cases such as the one before the jury.9 The s 147 application largely related to the submission by the defence that the evidence of collusion between the sisters was strong and, coupled with the historic nature of the offending and the complainants’ motives to lie, it would be unsafe for a jury to convict.
[18]The allegations of collusion between the complainants were summed in the ruling as follows:
[47] Mr Zintl, for the defendant, argued that the complainants’ evidence was very unreliable due to collusion. This was based on the fact that:
(a)Complainants A and B were living in the same motel room when the allegations were disclosed in 2020.
(b)They were unusually close as sisters, and had shared the same bedroom as children during the period of offending.
8 Ruling of Grice J (reasons), above n 1, at [3].
9 At [4].
(c)Complainant B in the recorded discussion with her mother on 5 July 2020 said that she and Complainant A had been sitting down every day “talking about a plan of action”. This smacked of collusion.
(d)The timing of text messages appears to indicate some collusion at the time of the disclosure to their mother.
(e)The complainants went to the police station together on 28 May 2020.
(f)They were both angry with the defendant and wanted to get back at him.
[19] Mr Zintl also pointed to internal inconsistencies in the complainants’ evidence. This included that in the phone call to her mother, to which I refer below, Complainant A had said the offending had happened between the ages of 7 to 10 or 11, whereas in her evidential statement she had said it was when she was 8 or 9 to 12 years of age. In relation to Complainant B, the defence submitted that she had said the offending occurred when she was 8, which was before the defendant was living with the family, rather than 10, which was the age specified in her evidential disclosure video.10
[20] In addition, Mr Zintl said that despite the general rule that matters of credibility should go to the jury, this was an exceptional case because of the factors relied upon to establish collusion. In addition, the complainants were staying at the same hotel during the trial and “it would have been extraordinary had they not talked about the trial”. Secondly, he said while Complainant B had said in her evidence she had seen her sister on Monday and Tuesday of the week of the trial, she said she had not talked to her. Mr Zintl submitted this was not credible.11
[21] Mr O’Donoghue, for the Crown, accepted there was sufficient narrative to put to the jury that there had been collusion but said that did not justify a discharge.12 He pointed out that the matter was quintessentially a jury matter. He said it was not close to a case where the complainants had been manifestly discredited.13
[22] Mr Zintl also submitted that under s 122 of the Evidence Act, the Judge was required to consider directions on evidence where it was more than 10 years old.14
10 At [48]
11 At [49].
12 At [51].
13 At [53].
14 Evidence Act 2006, s 122(2)(e).
That statutory requirement gave some strength to his argument that the evidence was so old it should be carefully scrutinised.15
[23] In the ruling, I concluded that the matter should go to the jury. In summary, the complainants were adamant that the offending occurred, and they had responded to the allegations of collusion put to them. They denied it.16
[24] In addition, I noted that there had been a number of text messages between the parties which could be interpreted in a number of ways and the weight to be taken from those text messages was a matter for the jury.17
[25] I found the inconsistencies in the complainants’ evidence were minor and could be explained in particular due to the emotional state of Complainant B when she was talking to her mother on the phone.18
[26] I also dealt with Mr Zintl’s submission that there had been unfairness due to the late disclosure of the recording of the complainant’s telephone discussion with her mother. In that regard, I described that non-disclosure in the ruling, as follows:19
The complainant mentioned the fact the police had recorded the telephone conversation with her mother in the course of cross-examination. It is common ground the fact of the recording had not been disclosed, nor was there any information in the disclosure material given to the defendant that could have reasonably led to the discovery of the recording. The officer in charge retrieved the recording from the CMC, the database of police communications. It was not attached to the IMT file management system in which the police keep records of their investigations and in which all investigation material should be stored. As a result of this, the trial was delayed while the recording was retrieved, and the defence was given the opportunity to listen to it. It was edited and the transcript redacted (to remove prejudicial material) before it was played. The defence was also provided with all the disclosure files by the detective in charge. Mr Zintl, for the defendant, went through the IMT computer index with the detective to check there was nothing further that required disclosing. Reference to the consent required to the recording and the officer being present for the phone call were recorded in IMT. However, the coding of the record was such that it would not have been possible for the defence to recognise the fact that there had been a telephone call and it had been recorded.
15 Ruling of Grice J (reasons), above n 1, at [54].
16 At [58].
17 At [59].
18 At [62].
19 At [16], n 3.
[27]However, in the ruling I said that:20
… steps were taken in the course of the trial to remedy that [non-disclosure] by the provision and transcription of the recording. In addition, the Crown made available all of the police disclosure evidence and Mr Zintl went through the computer index of the IMT with the assistance of the officer in charge. This led to delays in the trial. There is nothing to suggest that there is anything further that has not been disclosed which might indicate collusion or otherwise.
[28] I concluded that the allegation of collusion, which had been relied on heavily by the defendant in the s 147 submissions, was a matter that should properly go to the jury. No other matters raised supported the dismissal of the charges. I concluded:
[64] This is not an exceptional case where the evidence against the defendant in relation to the charges is so manifestly discredited or unreliable that it would be unsafe to convict on them or unjust for the trial to continue on the charges.
[65] In summary, I do not consider this is a case which meets the test for dismissal of a charge under s 147. The issues raised are matters for the jury. It is for them to assess the evidence.
[29] I now turn to the non-disclosure. The parties agree that at least a day and a half in trial time was lost due to the failure to disclose. In addition, Mr Zintl was required to divert his attention from the trial to go through all the disclosure documents with the officer-in-charge. He was also required to listen to the telephone recording that was finally located on another police system, it was not on the file management system where it should have been. Mr Zintl listened to the recording and police arranged for it to be transcribed urgently. Various redactions were needed to be made to the recording before it was used in the trial. A transcript was then produced for use at trial.
[30] The Crown and police responded quickly to remedy the disclosure failure. However, Mr Zintl was put to a lot of extra work and diverted from the trial.
[31]I now turn to the various heads of claim.
20 At [60].
Crown proceeding after unsuccessful s 147 application
[32] The failures that Mr Zintl now points to in support of collusion between the complainants are largely the factors laid out in the s 147 ruling listed above. Mr Zintl also points to a comment by Complainant B to her mother in the telephone call which was disclosed at trial that she “had sat down with her sister, Complainant A, and they had been talking about our next plan of action and what they were going to do”. Mr Zintl also pointed to the fact that Complainant A did not go back to her town of residence after she had given evidence and instead was seen driving around the courthouse. Although this was investigated in the course of the trial and no issue arose. The Crown does not dispute there was an evidential foundation for collusion. Mr Zintl says it should have been investigated by the police, as should threats made by the complainants in text messages to their mother and Mr M.
[33]Mr Zintl also refers to the failure to disclose the telephone recording.
[34] In addition, Mr Zintl submitted that the complainants’ mother had been interviewed and made a formal statement yet was not called by the Crown as a witness.
[35] Further, he says the Crown produced a booklet of texts showing only a few select text messages. Any text messages which portrayed the complainants in a bad light he says were redacted. Mr Zintl says the defence had to prepare a text message booklet with the full version of the text messages between the parties which showed a completely different picture “to what the Crown had attempted to portray to the jury”. In particular, it showed that the complainants had a good relationship with the defendant before an incident in which Complainant A had moved out of the family home.
[36] The defence also says that the complainants’ brother, JS, was also another potential witness that the Crown should have called. He had been present at the time of some of the alleged offending and gave evidence for the defence at the trial.
[37] In summary, Mr Zintl says the police should not have continued with the trial following the s 147 ruling because of all the factors listed above. He submits that the factors taken as a whole show a lack of good faith by the Crown.
[38] Mr Zintl also pointed to the effect of the trial on M, including the stress adversely affecting his mental health and his standing with iwi. Mr M in an affidavit spoke of the breakdown of his marriage once the complainants had made the allegations to the police. Mr M also referred to his discovering that the officer-in- charge during the trial had called a former policeman who had been a friend of Mr M’s and had been mentioned by Complainant B in her video interview. However, that phone call was not disclosed in the trial.21
[39] The Crown responded to the allegation that it should not have proceeded with the charges and had acted in bad faith. Mr O’Donoghue said the prosecution had acted in good faith in bringing and continuing with the charges. The Crown says the police non-disclosure was not deliberate, nor had they acted in bad faith in the way they had investigated the case.
[40] The Crown says it was in the public interest to continue with the charges. It says the declining of the s 147 application is a compelling answer to the defence submission that the police should never have brought the charges and had acted in bad faith in continuing the proceeding.
[41] The Crown accepts that there was an arguable narrative for the defence to bring the allegation of collusion but that did not mean they in fact colluded. They both denied on oath that they had colluded to make the false sexual allegations. In those circumstances, the issue of collusion was a live factual matter for the jury to evaluate and weigh.
[42] The Crown said the police had discharged their primary obligation by disclosing all of the text messages and that the defendant was able to make use of all those text messages and use them in cross-examination of both complainants. Both complainants had given evidence that they had other reasons for sending threatening texts to their mother and the defendant. That included a consistent theme, which was apparent in some of the texts, that Complainant A was upset that her mother and the defendant were talking to others behind her back. She admitted she had kicked her mother’s car because she was so angry with her about this.
21 Affidavit of defendant in support of application for costs, dated 20 January 2022.
[43] The Crown says that the complainants’ texts were open to interpretation that neither complainant was completely unaware of the other sexual allegations against the defendant. But they were spoken to by the police separately and the evidential videos were taken on separate dates.
[44] Mr O’Donoghue noted the Crown had a prosecutorial discretion as to which witnesses it called. He indicated that, while the complainants’ mother had given a statement to the police, it displayed partiality to her husband over the children which Mr O’Donoghue said, in the Crown’s experience, was common in these types of cases. In those circumstances, it could not be criticised for not calling the mother as a prosecution witness.
[45] In addition, the defence could have applied under s 113 of the CPA for an order requiring the prosecution to call the mother as a witness but they did not do so. The mother was available for the defence to call and it in fact called her as a defence witness, so the jury had the opportunity to hear her evidence.
[46] In relation to the defendant’s brother, JS, the Crown says that the police had been advised that he had mental health issues and was a drug-user. The police were aware he was an active gang member with an anti-police attitude and so it had good reason to believe he would not cooperate to give a statement.
[47]I turn to consider the matter against the factors set out in s 5 of the CCCA.
Whether the prosecution acted in good faith in bringing and continuing the proceedings
[48] The defence submits that the prosecution was acting in bad faith in continuing the proceedings beyond the s 147 ruling. This was despite the fact that the s 147 application by the defence was not successful. Mr Zintl said the application under s 147 had a different legal test than that which should be applied in an application for costs in a criminal case. The issues here he says are different because the argument is that the evidence was manifestly discredited due to, among other things, evidential collusion.
Analysis
[49] There was sufficient evidence of collusion to go to the jury. That was clearly a jury matter. I do not consider the Crown made any error, nor did it show bad faith by continuing with the trial in order that the jury could determine that matter.
[50] In addition, the inconsistencies in evidence which Mr Zintl points to and the threats were all matters which were properly for the jury to weigh.
[51] As to the failure of the Crown to call the complainants’ mother and brother, it was open to the prosecution to choose what evidence to call. It has provided explanations as to why those witnesses were not called. No application was made by the defence for those witnesses to be called. Similarly, the texts were disclosed. The Crown put together a booklet that was found on the evidence around the disclosures by the complainants. The defence was able to request a more comprehensive booklet or produce its own from the disclosed texts, which it did. The Crown did not demonstrate bad faith on that score.
[52] The failure to disclose the phone call from Complainant B to her mother which had been recorded by the police, is a matter I deal with in detail below. That non-disclosure was isolated and does not give rise to evidence of bad faith, nor does it do so in conjunction with the other matters which are said to support such a finding.
Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested the defendant might not be guilty — s 5(2) of the CCCA
[53] Under this heading, Mr Zintl submits the police failed to consider the context of the phone call against Complainant B’s evidence in terms of inconsistencies and contradictions. This refers to Complainant B stating in a phone call that the alleged offending occurred when she was between 7 and 11 years of age, as opposed to the evidential video interview in which she says it was between the ages of 9 and 12. Mr Zintl said she was also inconsistent about the age she gave as when she tried to commit suicide, being 8 years of age in a telephone call and 10 years of age in the evidential interview.
[54] These inconsistencies were matters for the jury. Complainant B explained the inconsistencies when questioned about them. They were not significant inconsistencies. I do not consider that the prosecution erred in failing to investigate those inconsistencies. They were matters for the jury.
Whether generally the investigation into the offence was conducted in a reasonable and proper manner — s 5(2)(d) of the CCCA
[55] Mr Zintl says that the investigation was poor and selective and failed to interview all potential witnesses who were at the scene. The complainants’ brother, JS, was said to be present at the time of the alleged offending against both complainants and should have been interviewed.
[56] The complainants had described that the offending occurred in the living room and the family were generally present, although different family members were present at different times. One of those who was present on occasions was the complainants’ brother.
[57] The prosecution has explained why it did not seek to interview JS. In the circumstances, there was a reasonable explanation for not interviewing JS. I do not consider that is evidence that supports the submission that the offence was not conducted in a reasonable and proper manner.
[58] However, in my view, the non-disclosure of the recording by the police of the telephone conversation by Complainant B and her mother was unsatisfactory. It directly led to a delay in the trial and distracted defence counsel from his job, as I have outlined above.
[59] According to the Crown, the officer-in-charge at the time the telephone interview took place had not realised the evidential value of the interview. She had taken the view that the recorded telephone call was not relevant. That detective-in- charge has now left the Police.
[60] As soon as the failure to disclose became apparent, the current officer-in- charge took steps to remedy the situation. It took him by surprise and initially he was
uncertain as to whether the recording could be located. However, when it was he arranged for its urgent transcription and cooperated with the defence in reviewing all the disclosure material.
[61] Mr O’Donoghue indicated that there was no suggestion that the Crown had had any role in the non-disclosure. Mr O’Donoghue personally immediately took steps to provide his disclosure files in full to Mr Zintl to check through.
[62] On its own or taken together with the other matters to which the defence point, the failure to disclose in this case does not amount to bad faith. It was an error by the then-officer-in-charge. It, however, caused considerable delay to the trial.
[63] I consider that matter is now properly dealt with under the s 346 of the CPA. I deal with that below.
Conclusion
[64] In summary, I am not satisfied that the Crown acted in bad faith. Having regard to the relevant circumstances in this particular case, I do not consider there are good grounds which would warrant an award of costs. Apart from the non-disclosure, I do not consider there is anything special in relation to the circumstances surrounding this trial which would warrant an award.
Costs in excess of scale
[65] Mr O’Donoghue submitted that in this case, if costs were to be granted, they should not be granted in excess of scale. Section 13(3) of the CCCA provides:
Where any maximum scale of costs is prescribed by regulation, the court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.
[66] In this case, a maximum scale of costs is prescribed by regulation. As I have dismissed the application for costs under the CCCA, it is not necessary to consider the issue of costs in excess of scale in this case. But, in any event, even if I had found that grounds were made out for an order for costs, there was no special difficulty,
complexity or importance in this case. Therefore, the payment of greater costs than scale would not be desirable.
Section 364 of the Criminal Procedure Act 2011
[67]Section 364 of the CPA provides:
364 Costs orders
…
(2)A 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.
(3)The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.
…
[68] In this case, the detective who was responsible for the non-disclosure provided a job sheet during the trial when the non-disclosure became apparent. It stated that the detective could only hear one side of the phone call made by Complainant B but not what her mother said. As a result, the detective decided nothing of an evidential value came from it. Therefore, she made no request for a copy of the recording.
[69] The recorded call was located in a separate database which holds all police recordings, and not on the file management system. It is apparent that if a request had been made for a copy of the recording, it would have been provided from that system at the time or shortly after the recording was made. It should have been and it should have been disclosed.
[70] I do not consider the detective’s explanation is sufficient to justify the non-disclosure. The recording itself did not, on its own, manifestly discredit anything that Complainant B said. As I have indicated, there were some inconsistencies in relation to how old she was when events occurred between the recorded telephone interview and her evidential video interview. She explained those inconsistencies. However, the weight of these was a matter for the jury.
[71] The police did not have a reasonable excuse for failing to disclose the fact that it ought to have disclosed the recording. This was in general terms accepted by the Crown in submissions. Mr O’Donoghue in his submissions agreed that the failure to disclose caused “chaos” in the trial. There is no doubt it prolonged the trial. However, Mr O’Donoghue pointed out that the matter was remedied by the detective-in-charge, with the support of the Crown, with alacrity.
[72] Mr O’Donoghue says the failure to disclose was not significant and a delay of what was estimated to be about one and a half days in a five-day trial was not substantial.
[73] I disagree. There was no reasonable excuse for non-disclosure. The detective- in-charge failed to disclose but did not give any evidence apart from the statement on the job sheet. There is no explanation as to why she decided there was nothing of an evidential value. It is inexplicable that a detective-in-charge would consider the interview was not relevant.
[74] In those circumstances, I consider the defence is entitled to costs under s 364(2) of the CPA.
[75] There was no reasonable excuse and the procedural failure was significant. It caused a reasonable delay in a historic sexual abuse trial. The delay affected the Court scheduling and, in addition and apart from the delay to the witnesses and other participants in the proceedings, the jury were kept waiting for long periods of time. Defence counsel was required to do more work and was distracted from the trial.
[76] I accept that the Crown behaved properly when the non-disclosure came to light. It was not responsible for the non-disclosure.
[77] It was the police whose failure caused the non-disclosure. Accordingly, the police should pay a sum in view of the failure to disclose.
[78] I now turn to what is appropriate. Mr Zintl estimated the defence’s costs attributable to the delay and the late disclosure would have been in the vicinity of
$6,000 to $10,000. Mr Zintl noted he was diverted from his preparation of the defence and required to work into the evening. In addition, Mr Zintl claimed $3,000 for the cost of preparation for this costs application.
[79] Section 364 is not primarily intended to compensate defendants for their actual and reasonable costs. It is primarily intended as a sanction for non-compliance. Therefore, I do not consider a compensatory award is appropriate. Standing back and looking at the global position, I estimate on the information available that approximately $8,000 in added costs is fairly attributable to the failure to disclose. This is an imprecise calculation and takes into account a portion of the time to prepare the costs application.
[80] I consider an overall costs order of $6,000 is appropriate to censure the police for the non-compliance. This is a robust approach to fixing a sum which is not merely nominal. In the circumstances, it should be paid to the defendant. As the High Court noted in R v Bublitz, proper disclosure is central to preventing wrongful convictions.22
[81] The disclosure in this matter was, I have found was, inexcusable. It is appropriate that the costs order in the sum I have indicated be made. It ensured what were unreasonable delays in an historical sexual abuse trial.
Formal orders
[82]Under s 364 of the CPA, the police are to pay to the defendant the sum of
$6,000 in respect of the procedural failure to disclose the recorded telephone interview between Complainant B and her mother.
Grice J
22 R v Bublitz [2018] NZHC 373 at [129].
Solicitors:
Crown Solicitors, Nelson
M Zintl, Barrister, Blenheim