Morris v Police
[2013] NZHC 1336
•6 June 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-090-004721 [2013] NZHC 1336
IN THE MATTER
of an application for costs under s 5 of the
Costs in Criminal Cases Act 1967
BETWEEN CHRISTOPHER WILLIAM MORRIS Applicant
ANDNEW ZEALAND POLICE Respondent
Hearing: 29 May 2013
Counsel: OE Harold for Applicant
AR Burns for Respondent
Judgment: 6 June 2013
JUDGMENT OF ASHER J
This judgment was delivered by me on Thursday, 6 June 2013 at 4.30pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Jenny Wang & Associates, Auckland. Crown Solicitor, Auckland.
MORRIS v NZ POLICE [2013] NZHC 1336 [6 June 2013]
Introduction
[1] This is an application for costs by Mr Christopher Morris against the Police following his discharge on a count of possession of methamphetamine for supply.
[2] Mr Morris is a patched member of the Headhunters motorcycle gang. The Police contend he was the vice president of the west chapter of the Headhunters, which has a house base at Henderson. Regular weekly meetings of west chapter Headhunter members were held at 7 pm on Fridays, referred to by them as weekly “church meetings”. The house at Henderson is owned by Tapa Tohunga Group Inc. Mr Morris has no legal connection to the owner and it is not suggested that he lives at the address.
[3] On the night of Friday, 11 March 2011 a search warrant was executed on the Henderson house. Mr Morris was present with 13 other associates in the meeting room of the clubhouse. In a toilet adjacent to the meeting room, situated a few metres away from where Mr Morris and the others were sitting, the Police found a Tupperware container inside a leather motorcycle bag containing 1.187 kilograms of methamphetamine, worth in street value terms approximately $1 million. Also located on a bar in the meeting room was a shoulder bag containing 24 grams of methamphetamine. Inside that bag were the bail papers of the president of the Headhunters west chapter, Mr David Dunn, one of the co-accused.
[4] Several other gang members were found to be in possession of methamphetamine pipes, but not Mr Morris. There may also have been some fingerprint and DNA evidence linking Headhunter gang members to what was found, but nothing found showed any connection to Mr Morris.
[5] Mr Morris was arrested on 14 March 2011. On his first appearance that day, his counsel Mr Harold asserted that there was insufficient evidence to support a conviction. He filed an application for costs on the basis that the prosecution had not taken proper steps to investigate matters, and were not conducting the prosecution in a reasonable and proper manner.
[6] In the bail hearings that followed in the District Court and on appeal in the High Court, Mr Harold made strong submissions that the Police case could not succeed. On 11 April 2011 in an oral judgment responding to an application for variation of a 24 hour curfew bail term, Judge H M Simpson in the District Court observed that the Police case was “very slender”.1 She noted that Mr Morris had met
the bail terms and determined that, having regard to the “paucity of the evidence”,2
the Police case was not strong. She removed the restrictive bail conditions.
[7] Some of these conditions were re-imposed by Lang J on appeal, 3 but he also observed that the Judge Simpson’s assessment of the strength of the Police case was correct. He considered that there was a real issue as to the stated knowledge of each accused and the intention of those accused in relation to the drug.
[8] In the meantime, Mr Harold had applied for an application for an oral evidence order under s 178 of the Summary Proceedings Act 1957. Because there was no longer a depositions process in criminal proceedings, he hoped to obtain an order at the conclusion of that evidence that the defendant be discharged. However, on 28 October 2011 his application was dismissed by Judge D M Wilson QC because the application was, in essence, in the nature of a s 347 application based on the
existing evidence.4 The Judge held that no purpose would be served by directing
oral evidence, given that Mr Harold was not seeking to elicit any further evidence in support of his application.5
[9] On 23 June 2011, Mr Morris had been charged with a further count of participation in an organised criminal group. A post-committal hearing was set for
24 November 2011 and on that date the District Court committed Mr Morris to the High Court. There was a callover in the High Court on 8 February 2012 with all accused being remanded to trial on 12 November 2012. All indicated that s 347 applications would be filed and timetable orders were made. A fixture was allocated
for the applications for 29 June 2012.
1 Police v Morris DC Waitakere CRI-2011-090-1930, 11 April 2011 at [13].
2 At [18].
3 Police v Morris HC Auckland CRI-2011-404-130, 10 May 2011 at [8].
4 R v Morris DC Waitakere CRI-2011-090-4464, 28 October 2011.
5 At [2]–[3].
[10] On 24 May 2012, Mr Harold was advised by the Crown that it had reviewed the evidence and decided not to proceed against Mr Morris and the other accused, save for Mr David Dunn whose prosecution continues.
[11] Mr Morris now seeks costs under the Costs in Criminal Cases Act 1967 (the CCCA). He seeks Mr Harold’s full indemnity costs which come to $14,590.89 including GST for Mr Harold’s various attendances over 14 months from March
2011, and in addition the costs of this hearing.
The Costs in Criminal Cases Act6
[12] Section 5(1) of the CCCA states that where a defendant is successful by, amongst other things, being discharged, the Court may order that he be paid “such sums as it thinks just and reasonable towards the cost of his defence”. Section 5(2) states that the Court should have regard to all relevant circumstances, and lists seven particular factors (where appropriate):
(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 information was dismissed on a technical point:
(f) Whether the information 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.
6 Comments here reflect those made in Registrar of Companies v Feeney HC Auckland CRI-2011-
404-14, 21 June 2011.
[13] Section 5(3) provides that there is no presumption for or against the granting of costs, and s 5(4) states that no defendant shall be granted costs by reason only of an acquittal or discharge, or dismissal or withdrawal of an information.
[14] The criteria set out in s 5(2) apply to both the decision to grant costs and the amount of any costs granted. Under s 13(3) of the Act, the Governor-General is empowered to make regulations providing for, amongst other things, a maximum scale of costs. It is provided that the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied “… having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.”
[15] Thus, the CCCA sets out in detail particular circumstances that are relevant to the issue of whether to grant costs to a successful defendant. Section 13 is, on its face, prescriptive as to the maximum scales of costs that may be ordered, and exact as to the circumstances in which that scale can be exceeded; the Court must be satisfied having regard to the “special difficulty, complexity, or importance” of the case that the payment of greater costs is desirable.
[16] As was pointed out in Shirley v Wairarapa District Health Board in a civil proceeding, while the costs jurisdiction is discretionary, it is not unprincipled.7
Otherwise it would be unacceptably arbitrary. The Court held there that the discretion had to be exercised generally in accordance with the principles set out in the costs rules.8
[17] There is a general discretion given to the Court by s 5(1) to order a payment of such sum as it “thinks just and reasonable” towards the cost of the defence. That sets the general test. The considerations set out in s 5(2) apply specifically to the “amount of any costs granted” as well as whether to grant costs. As Tipping J
observed in T v Collector of Customs:9
The amount to be ordered may be influenced by the grounds which existed for making an order in the first place. For example, if, under s.5(2)(a) the
7 Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [16].
8 At [17].
9 T v Collector of Customs HC Christchurch AP 167/94, 28 February 1995 at 4.
Court is of the view that the prosecution had not acted in good faith that might be a strong pointer to awarding costs at or towards an indemnity level.
Should there be a costs award?
[18] It is necessary to assess the s 5(2) factors and other relevant circumstances. Mr Harold does not suggest that in terms of s 5(2)(a) the prosecution failed to act in good faith in continuing the proceedings. However, he submits that s 5(2)(b)–(d) apply. He claims that this was a prosecution where, from the outset, the Police had insufficient evidence to support a conviction; the Police, he says, chose to proceed effectively on a wing and a prayer.
[19] Mr Burns has not sought to argue that the evidence available would have supported a conviction. However, he makes the strong submission that it was reasonable for the Police to bring the charge. The Police were hoping that by establishing Mr Morris was part of an organised criminal group, and proving that organised criminal group was involved in the supply of methamphetamine conduct, a sufficient link could be shown to establish Mr Morris’ guilt.
[20] This issue can be dealt with quite shortly. For a party to be shown to be guilty of possession of methamphetamine for the purpose of supply, there must be evidence establishing more than mere presence in the place where the methamphetamine was found.10 To succeed on the approach postulated by Mr Burns, it was necessary to show that the gang of which Mr Morris was a part was involved in the supply of methamphetamine. There was no such evidence.
[21] It is possible to have some sympathy for the Police position. Police witnesses indicated that the Police believe the Headhunters gang is an organisation that conducts serious criminal activity. The circumstances of finding the methamphetamine in a bag so close to where Mr Morris and others were meeting were undoubtedly suspicious. Any link of the sort that does in fact exist in relation to Mr Dunn, such as material in the bag which belonged to Mr Morris, would have been sufficient to justify charges. However, the plain fact is that there was nothing
apart from proximity and involvement in the gang that linked Mr Morris to the
10 R v Maihi CA406/04, 30 November 2004 at [40]–[41].
methamphetamine. That evidence could never sustain a conviction beyond reasonable doubt.
[22] The difficulty was recognised and recorded by the two Judges who considered the issue in bail applications. The Police nevertheless did not withdraw the charges at that time. While there was no bad faith, the vigorous efforts by Mr Harold to bring home the weakness of the Police case to the Police and the Courts, and the observations of the two Judges, are relevant to the exercise of the discretion as to whether there should be a costs award. The Police had the clearest possible notice of the weakness of their position, but they chose to continue. In my opinion the situation falls squarely within s 5(2)(b): there was not sufficient evidence to support the conviction at the commencement of the proceedings and that remained the position until the discharges 14 months later.
[23] I consider that a costs award is required in terms of s 5 to signal the weakness of the Police position from the outset, and its refusal to accept the clear and reasonable requests of Mr Harold that they withdraw the charges. Given the evidence available, the Police should not have charged Mr Morris. While the suspicions were reasonable, an investigation could have continued without Mr Morris being charged.
Amount of the costs award
[24] Mr Burns for the Police did not contest the reasonableness of Mr Harold’s fees. I am of the view that they are appropriate and indeed modest. Mr Morris seeks a complete indemnity. The question is whether in my discretion I consider the full
$14,590.89 to be what is just and reasonable in terms of s 5(1). I have to bear in mind s 13(3) and the need, if I am to go beyond scale, for there to be special difficulty, complexity or importance.
[25] The reality is that the maximum scale of costs set out in the Regulations has not been regularly revised, and is hopelessly out of date. It bears no relation to
reality. The scale was described as “obsolete” in Pawson v Heavylift Cargo Airlines
Pty Ltd.11 Nevertheless, it cannot be ignored and on occasions has been applied.12
[26] There are decisions from 1989 to 1991 where a conservative approach was
deliberately adopted to the phrase “special difficulty, complexity or importance”.13
In R v Accused Penlington J observed:14
Unquestionably, where a person is accused of a serious crime it is of importance to that person. I note, however, that the word “importance” is qualified by the epithet “special” and, secondly, that the word “importance” is followed by the words “of the case”. The focus is therefore on the case and not on the accused. The Legislature has significantly not added the words “for the accused” after the word “case”. It therefore seems to me that the phrase “the special importance of the case” means a case which is one of particular importance and which is not in the ordinary run of cases; that is to say, a case which is not a normal case.
[27] I have no doubt that this was a case of special importance in terms of s 13(3). Mr Morris faced life imprisonment. Given the amount of methamphetamine involved, if he had been found guilty, the term of imprisonment would have been lengthy. The importance goes much further than the usual importance to any particular defendant of a criminal charge where there is a risk of imprisonment.15
From the point of view of the community, any prosecution involving over a kilogram
of methamphetamine is a significant matter, and beyond the norm in terms of drug cases. It is not a “normal case”. I conclude that this is a case where it is legitimate to go beyond the scale.
[28] I now turn to the question of whether Mr Morris should get the full indemnity costs that he seeks, or a lesser sum.
[29] As I have observed, the Police faced highly suspicious circumstances. A
large, barely concealed quantity of methamphetamine near to where persons belonging to a group featuring members with a criminal history were meeting.
11 Pawson v Heavylift Cargo Airlines Pty Ltd HC Auckland CRI-2005-404-278, 1 March 2006 at
[12].
12 See R v Accused (1991) 7 CRNZ 686; and R v T [1992] 3 NZLR 215 (HC).
13 Re Gregg HC Hamilton T22/88, 5 May 1989; and R v Rosson HC Dunedin T24/90, 19 March
1991.
14 At 693.
15 R v Rust CA119/98, 13 May 1998 at 7.
Mr Morris’ response did nothing to allay the concerns. He appears to have made no comment to the Police at all, save for the fact that he was attending a meeting. He did not deny any involvement with the methamphetamine, or offer any explanation as to why he had not noticed the bag’s presence in the toilet. It may have been the case that he had never been in the toilet, but he did not say that to the Police.
[30] Of course he had a right to silence.16 He did not have to say anything to the
Police and should not have been in any way penalised for his refusal to do so.
[31] However, he is not now charged with a crime. There is no prospect now of his exposure to conviction or any other form of criminal or related proceeding arising from these facts. He is coming to the Court, asking for the exercise of a discretion as to the payment of a sum of money in his favour. A defendant’s response to charges can be relevant to a s 5 consideration. Section 5(2)(f) specifically refers to whether the defendant established through evidence that he or she was not guilty. This does not arise as there is no evidence. But it indicates that a defendant’s conduct is in the equation when the discretion is to be exercised.
[32] Section 5(2)(g) provides that regard can be had to 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.
[33] This factor clearly imports the behaviour of the defendant into the picture. However, in relation to s 5(2)(g) there are conflicting judgments of this Court on the issue of the type of behaviour to which the subsection is directed. Chilwell J in R v AB held that only acts by a defendant that favour a cost award are relevant under
s 5(2)(g).17 Somers J favoured that view in R v CD,18 as did Hardie Boys J in
16 See, for example, Commissioner of Police v Burgess [2011] 2 NZLR 703 (HC); and
Commissioner of Police v Burgess [2012] NZCA 436. See also New Zealand Bill of Rights Act
1990, s 23(4).
17 R v AB [1974] 2 NZLR 425 (SC).
18 R v CD [1976] 1 NZLR 436 (SC).
R v Margaritis.19 Adams on Criminal Law20 also supports this approach in relation to s 5(2)(g).
[34] However, Tipping J in two cases (R v T and R v S) disagreed.21 His Honour held:
I am afraid that I must disagree with [the dictum of Chilwell J]. It seems to me that Parliament by para (g) is requiring the Court to have regard not only to behaviour capable of supporting an award of costs but also to behaviour which might tell against an award. There are a number of authorities in this field which regard it as relevant whether the defendant, although acquitted, has to a greater or lesser extent brought the charge or charges upon his own head. It seems to me that under para (g) behaviour of a defendant helpful to his application to costs is certainly relevant, but so is behaviour of a defendant unhelpful to his application.
[35] Adams on Criminal Law suggests that the difference in view is academic, given that the Court may have regard to all the relevant circumstances in any event under s 5(2).
[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 a defendant’s claim for costs will be strengthened if the defendant has been entirely open and co-operative with the 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. Mr Morris did not take such steps. He chose to exercise his right to say nothing. It was his right to do so, but as a consequence he did nothing to assuage the legitimate Police suspicions, and weakened his position in regard to this application for a discretionary award. I regard his actions as a limiting factor in assessing the amount of costs.
[37] I have decided that the appropriate order is a payment of $10,000 inclusive of
GST, being more than half his actual costs of approximately $14,500 including GST.
19 R v Margaritis HC Christchurch T66/88, 14 July 1989.
20 Bruce Robertson (ed) Adams on Criminal Law — Sentencing (online ed, Brookers, 2013) at
CC5.13.
21 R v T [1992] 3 NZLR 215 (HC); and R v S HC Greymouth M4/96, 30 September 1996.
If it were not for the modest nature of Mr Harold’s bill, the percentage of actual costs
allowed would have been lower.
Costs of this application
[38] Mr Harold also seeks costs on this application. He asks for $4,000. It is necessary to consider the correct approach to such an application for costs. This is not an application to which the High Court Rules scale of costs applies, as it does not arise from a “proceeding” under r 14.1. A proceeding is defined in r 1.3 as “any application to the court for the exercise of the civil jurisdiction of the court …”. This is not such an exercise.
[39] Costs in the CCCA are defined as expenses “… properly incurred by a party
… carrying on a defence …”. It could be suggested that in seeking costs, a defendant is not strictly carrying on a defence. However, the application of costs undoubtedly arises out of the carrying on of the defence and can be seen as part of that process. In my view, costs should be determined applying the principles in the CCCA. It can be expected, therefore, that the approach to costs will be more conservative than that of the High Court Rules, where generally successful parties are awarded costs on a scale calculated on the basis of the notional costs of counsel in civil proceedings. The conservative costs regime of the CCCA applies. In
R v Accused22 Penlington J awarded costs on the basis of the scale set out in the
Regulations, but I have already determined that that scale does not apply as this was a case of special importance.
[40] I am not prepared to make an award of $4,000, which would involve an award considerably in excess of the 2B civil scale for such an application. On that scale, the costs would have been $3,250. However, I consider that given Mr Morris’ degree of success, a modest costs award for the application is appropriate. I make an order in Mr Morris’ favour of a further $1,600 on account of the costs of this
application.
22 R v Accused, above n 12.
Result
[41] Mr Morris is entitled to a contribution to the costs of his defence, which is fixed at $10,000 including GST. Mr Morris is entitled to a contribution to the costs of this application, which is fixed at $1,600.
[42] I see no reason to make an order under s 7(2) of the Act. Accordingly, the costs order will be made out of the money appropriated by Parliament for this purpose under s 7(1)(a).
……………………………..
Asher J
4