O'Byrne v Police HC Christchurch CRI-2011-409-000037
[2011] NZHC 799
•21 June 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2011-409-000037
BETWEEN ROGER WILLIAM O'BYRNE Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 3 June 2011
Appearances: Appellant in Person
N M Robson for Crown
Judgment: 21 June 2011 at 11:30 AM
JUDGMENT OF VENNING J
This judgment was delivered by me on 21 June 2011 at 11.30 am, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, PO Box 533, Christchurch 8140. [email protected]
Copy to: Mr R O’Byrne, PO Box 15 Cust 7444.
O'BYRNE V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000037 21 June 2011
Introduction
[1] Mr O’Byrne was charged with an offence under s 48 of the Arms Act 1983 in the District Court at Rangiora. He defended it. At the close of the prosecution case Judge Moran accepted defence counsel’s submission there was no case to answer. He found that one of the essential ingredients of the offence had not been proven. Mr O’Byrne was discharged.
[2] Mr O’Byrne then sought costs under the Costs in Criminal Cases Act 1967. In a decision delivered on 31 January 2011 Judge Moran agreed that Mr O’Byrne should receive a contribution to his legal costs but declined to depart from the maximum scale of costs provided in the Regulations.[1] The Judge awarded Mr O’Byrne $1,808 in accordance with the scale. Mr O’Byrne appeals against that decision and seeks a full indemnity or, at the least, an increase in the costs awarded.
Background
[1] O’Byrne v Police DC Rangiora CRI-2010-409-59, 31 January 2011.
[3] Mr O’Byrne lives on a farm in Fernside. His property is bordered by a number of neighbours. Mr O’Byrne has had ongoing difficulties with one of those neighbours. For present purposes it is unnecessary to record the background to the dispute that Mr O’Byrne outlined in some detail to the Court. It is sufficient to note that the matter reached the stage where the neighbour had confronted Mr O’Byrne at a local food outlet and Mr O’Byrne had had stones or rocks thrown at him from the neighbour’s property while he was on his tractor.
[4] On the evening of the night in issue, at some time between about 9.30 and
10.00 pm, Mr O’Byrne had shot at a possum that was up a tree down the back of his property. He had then gone home to bed. Mr O’Byrne said the next thing that happened was that he was awoken by what sounded like stones or rocks being thrown on to the roof of his home.
[5] Unbeknown to Mr O’Byrne the neighbour that he had fallen out with had reported his gunshot to the police and said that Mr O’Byrne had discharged a firearm
in the direction of his home. The Armed Offenders Squad was mobilised and arrived at Mr O’Byrne’s home in the early hours of the morning. They called over a loud hailer for Mr O’Byrne to come out. They also threw rocks on to the roof of his house to get his attention.
[6] The officers called out that they were police. Mr O’Byrne says he did not hear them say that. He thought he recognised the voice on the loud hailer as that of the neighbour. When he looked outside, he could not make out who was there because of the spotlights.
[7] At one stage Mr O’Byrne telephoned two other neighbours, the Sextons and Mr McCallum to tell them that he was under attack. Mr O’Byrne was so concerned that he picked up his shotgun, opened a window and discharged his shotgun into the air and into the trees above one of the Armed Offenders Squad officers. He did so in the hope the intruders would leave.
[8] At some stage Mr O’Byrne spoke to the local police by telephone. He was eventually convinced that it was the Armed Offenders Squad outside and that he must give himself up, which he did.
[9] Mr O’Byrne later gave a full statement to the police in which he set out his
explanation for what had occurred and why he had fired the shot into the air.
The charge
[10] The police decided to charge Mr O’Byrne under s 48 of the Arms Act that
without reasonable cause he discharged a firearm in a dwellinghouse so as to frighten a named police officer. There were three elements the police had to prove:
that Mr O’Byrne had discharged a firearm;
in a dwellinghouse; and
as a consequence the named police officer was frightened.
If those elements were established, it then fell to Mr O’Byrne to satisfy the Court
that he had reasonable cause to discharge the firearm.
[11] As noted, when the matter was heard the Judge dismissed the charge. Although the first two elements were established, the last one was not. The officer said that the shot made him feel quite nervous. As a result of that shot the constable took cover behind a large tree, relocated his position and retreated to a place of greater safety. The Judge considered that evidence was not sufficient to establish the
officer had been frightened. The Judge went on to record that:[2]
Had the case proceeded and had Mr O’Byrne given evidence consistent with his interview with the police, and in particular if it were confirmed by his neighbours [Mr Sexton and Mr McCallum] that he telephoned them asking for help on the basis that the neighbours next door were stoning his house, then he would have established what would have been incumbent upon him to establish, namely that he had reasonable cause to discharge the firearm.
[2] Police v O’Byrne DC Rangiora CRI-2009-061-1058, 15 September 2010 at [7].
[12] Mr O’Byrne then sought costs in the sum of $14,142.75. He was again
represented by counsel on that application.
[13] In his decision on costs the Judge considered that Mr O’Byrne had been the victim of an unfortunate concatenation of circumstances, that he was innocent and that he should have costs. However the Judge noted the quantum of the costs was restricted to scale unless the Court was satisfied that, having regard to the special difficulty, complexity, or importance of the case, payment of costs in excess of scale was desirable. The Judge was not satisfied there was anything of special difficulty, complexity, or importance in this case to support departure from scale. He awarded costs according to scale in the sum of $1,808.00.
The statutory framework
[14] Section 5 of the Costs in Criminal Cases Act provides jurisdiction for an
order for costs to a defendant such as Mr O’Byrne:
Costs of successful defendant
(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under [section 184F] of the Summary Proceedings Act
1957 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) of this section, 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 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.
(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 discharged or that any information charging him with an offence 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.
[15] Section 13 of the Act provides for the making of regulations for purposes including prescribing maximum scales of costs that may be ordered to be paid. The relevant regulations are the Costs in Criminal Cases Regulations 1987. The Regulations prescribe a maximum fee payable of $226 per half day occupied in Court.
[16] Section 13(3) provides that:
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.
[17] Reading ss 5(1) and 13 together, the discretion to award such sum as the Court considers just and reasonable is subject to the scale in the regulations, so that, to exceed the scale the applicant must satisfy the Court there is special difficulty, complexity or importance in the particular case.
Preliminary issues
[18] There is a preliminary point. Although Mr O’Byrne sought costs before the District Court of $14,142.75, he argued for costs of in excess of $40,000 on appeal. Some of that sum was comprised of Mr O’Byrne’s personal costs and other economic costs to him, apart from legal costs. However, the costs referred to under s 5 are costs “of [the defendant’s] defence”. That must be a reference to the costs of representation, not to Mr O’Byrne’s own time spent on the matter or other cost consequences.
[19] It has to be observed that the scale (which was last fixed in 1988) is inadequate. However, the Court of Appeal has confirmed that any perceived inadequacy of the scale is not relevant to the determination under s 13(3) of whether the case is of special difficulty, complexity, or importance: Solicitor-General v
Moore.[3]
[3] Solicitor-General v Moore [2000] 1 NZLR 533 (CA) at [29].
[20] This is an appeal against a decision made in the exercise of a discretion, rather than a general appeal. As the Supreme Court recognised in K v B the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.[4] The Supreme Court confirmed this approach in
[4] K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
relation to appeals against costs awards in criminal cases in R v Reid, observing:[5]
[5] R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 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.
Mr O’Byrne’s case
[21] As an appeal against the exercise of a discretion, it is for Mr O’Byrne to satisfy this Court the Judge erred in principle in determining that the threshold test in s 13 was not met.
[22] In support of his appeal Mr O’Byrne addressed several issues. A number of them did not bear on the s 13 test, but I heard Mr O’Byrne out. He felt aggrieved that he had not had an opportunity to give evidence before Judge Moran and to set out his side of the case. However, as the Judge observed, Mr O’Byrne was not required to give evidence because the prosecution failed to prove one of the elements of the offence. The Judge was aware of Mr O’Byrne’s statement, because after discussing the charge he went on to say that if Mr O’Byrne had given evidence in accordance with that statement, namely that he considered he was under attack as confirmed by his call to his other neighbours, the Sextons and Mr McCallum, he would have had reasonable cause to discharge the firearm.
[23] Mr O’Byrne was also aggrieved at a number of other issues arising from the way the police handled the matter. I refer to his principal concerns as follows:
He considers at least one of the police officers to have been incompetent or
biased.
No attempt was made to locate the cartridge casing near where he had shot at the possum to prove where he had directed that shot.
The police should have taken into account that it was the neighbour’s actions that were responsible for the Armed Offenders Squad call-out and should have investigated that matter further before calling out the Armed Offenders
Squad.
The police have seized his firearms and have not returned them.
Thepolice must have known that the officer in question was not frightened but still persisted with the prosecution.
The whole incident has cost him a considerable amount of money in addition to the costs of the successful prosecution. He has spent further money with
his lawyer on the application for costs and has spent his savings.
It was a matter of public importance that the Armed Offenders Squad could
be called out on the basis of a malicious call from the neighbour.
[24] At the conclusion of the appeal hearing I requested that the Crown provide a memorandum attaching a transcript of Mr O’Byrne’s interview with the police and also to confirm whether the police had in fact interviewed Mr Sexton and Mr McCallum, the neighbours that Mr O’Byrne said he called on the night. Mr O’Byrne was also given an opportunity to make submissions in reply on those issues.
[25] I have received the additional materials and considered Mr O’Byrne’s further submissions and the documents attached to his submissions. I have reviewed the transcript of Mr O’Byrne’s interview with Detective Johnson. On the basis of that interview the first two elements of the offence were made out from Mr O’Byrne’s own statement, namely that he discharged a firearm and that he did so in a dwellinghouse. As the Judge observed, at the commencement of the proceedings there was sufficient evidence to support the conviction, in the absence of contrary
evidence. The prosecution failed because the Armed Offenders Squad member did not come up to brief.
[26] What had led the Armed Offenders Squad to Mr O’Byrne’s house in the first case was not relevant to the charge Mr O’Byrne faced. It was not necessary for the police to have investigated the whereabouts of the cartridge from his shot at the possum. I agree with Judge Moran that the police could not be criticised for failing to investigate the neighbour’s allegations further or the background to the relationship between the neighbours and Mr O’Byrne before deploying the Armed Offenders Squad. The police were faced with a potentially dangerous situation involving a firearm.
[27] The evidence does not support Mr O’Byrne’s submission one or more police officers were incompetent or biased. Nor is the fact his firearms have been seized relevant to the issue of costs.
[28] If the police had prima facie proved the charge (if the officer had given evidence of being frightened) it would have been relevant for the police to establish, by cross-examination of Mr O’Byrne, the details of his dealing with the Armed Offenders Squad and his knowledge of the situation he faced. Again, as the Judge observed, the police did not act unreasonably in putting Mr O’Byrne to proof of the reasonable excuse that he proffered in his statement. Given the efforts the police made to identify themselves, it was entirely reasonable they would want to examine him on his explanation that he considered it was the neighbours outside. On this issue, Mr O’Byrne was not clear during the course of the interview at what point he called Mr Sexton and Mr McCallum and whether that was before or after he fired the shots. The relevant section of the interview was:
Q. You have, you said to me before you’ve talked to a few neighbours.
You’ve tried to ring about 4 and find you talking to 2. Was that on
your landline or was that on your cell phone?
A. Um, Oh I can’t remember. I think it was on the landline.
Q. Ok, righteo. Was that before or after the shots went out the window? A. Oh buggered if I know.
Q. That’s fine. I understand.
A. I used the phone several times during the incident. Q. Ok. Righto. That’s fine. ...
[29] The police then interviewed Mr and Mrs Sexton but did not interview Mr McCallum. In his statement Mr Sexton did not say the appellant had told him that it was the neighbours, rather the appellant thought he was under attack. The fact the police did not interview Mr McCallum made no difference to the prosecution. It was only relevant to Mr O’Byrne’s defence of reasonable cause.
[30] In his judgment on the issue of costs Judge Moran, who had heard the evidence in the first instance, concluded that the police acted in good faith in bringing and continuing the proceedings. He did not accept there could be a suggestion of mala fides. On my review of the file, I agree.
[31] I return to whether the test under s 13 is made out in this case. While the case was undoubtedly important to Mr O’Byrne and has had a severe impact on him, as the Court of Appeal confirmed in the case of R v Rust importance in this context means objectively of importance in legal consequence.[6] It is not relative to the subjective position of the applicant for whom, of course, in each case the matter will be all important.
[6] R v Rust [1998] 3 NZLR 159 (CA) at 164.
[32] It cannot be said there was anything of special difficulty or complexity about the case from a legal point of view. There were no difficult issues of law involved. It was a relatively straightforward prosecution which was ultimately determined on the evidence. The evidence was relatively confined and did not involve any undue complexity or length.
Result
[33] I conclude the Judge was right to find that, in the circumstances of this case, having regard to the factors in s 5(2) there were no factors of special difficulty,
complexity, or importance in this case that would justify departing from the maximum scale of costs prescribed by the Regulations.
[34] The appeal is dismissed.
Venning J
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