M v The the Queen - [2022] NZHC 529

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading M v The the Queen

Details

AGLC: M v The the Queen [2022] NZHC 529
Case: [2022] NZHC 529
Decision Date: 21 March 2022

CaseChat Overview and Summary

In the case of M v R, the applicant, Mr M, applied for costs following his acquittal after a trial in the High Court in Nelson. The charges were based on historic sexual abuse claims. The trial ran from 22–26 and 29–30 November 2021, and the jury acquitted Mr M on all charges on 30 November 2021. Mr M applied for full indemnity costs of $65,939.65 under s 5 of the Costs in Criminal Cases Act 1967 (the CCCA). He also applied for $10,000 costs pursuant to s 364 of the Criminal Procedure Act 2011 for procedural failure by the Crown or police.

The court considered the circumstances giving rise to the claim for costs, including the Crown proceeding after the unsuccessful s 147 application, the Crown's actions in good faith in bringing and continuing the proceedings, whether the prosecution took proper steps to investigate any matter coming into its hands which suggested the defendant might not be guilty, and whether generally the investigation into the offence was conducted in a reasonable and proper manner. The court found that the Crown had acted in good faith and that the investigation was conducted reasonably and properly, except for the non-disclosure of a recorded telephone conversation between Complainant B and her mother.

The court found that the non-disclosure was a significant procedural failure and ordered the police to pay the defendant the sum of $6,000 in respect of the failure to disclose the recorded telephone interview between Complainant B and her mother.

Orders