O v Police HC Christchurch CRI 2010-409-59

[2010] NZHC 2164

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2010-409-000059

O

Applicant

v

POLICE

Respondent

Hearing:         9 December 2010

Counsel:         M J Callaghan for Applicant

K B Bell for Respondent

Judgment:      9 December 2010

JUDGMENT OF FRENCH J

On Application for Costs (Costs in Criminal Cases Act 1967)

Introduction

[1] Mr O was charged with two offences of depositing litter under s 15 of the Litter Act 1979. What was alleged was that on two separate occasions, 30 July

2009 and 1 August 2009, he had deposited macrocarpa cuttings and wire on his neighbours’ property without their consent.

[2]      Mr O   defended the charges and following a hearing two Justices of the

Peace dismissed the 1 August charge but convicted and discharged Mr O   on the 30 July charge.

O V POLICE HC CHCH CRI 2010-409-000059  9 December 2010

[3]      Mr  O    then  successfully  appealed  his  conviction  for  the  30  July incident.

[4]       He now applies for an award of costs in respect of both the District Court hearing and the appeal.   The costs sought represent full solicitor/client costs, and amount to $8,156.25, for the appeal and $11,531.25 for the District Court hearing, a total of $19,687.50.

The legislative framework

[5]      It  was  common  ground  that the  application is  governed by the Costs in

Criminal Cases Act 1967 and in particular s 8 and s 5.

[6]       It was also common ground following the decisions in Field v Police HC Napier CRI 2007-443-000010, 12 February 2010, R v Rust [1998] 3 NZLR 159 and R v Reid [2008] 1 NZLR 575, that I have jurisdiction to consider the application for costs in relation to both the District Court and the appeal hearing.

[7]      The relevant parts of Section 8 state:

8         Costs on appeals

(1)       Where any appeal is made pursuant to any provision of the Summary Proceedings Act 1957 or the Crimes Act 1961 the Court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2)       No defendant or convicted defendant shall be granted costs under this section by reason only of the fact that his appeal has been successful.

...

(6)       If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

[8]      Section 5 provides:

5         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.

[9]      Both s 8 and 5 make clear that the fact a person has successfully defended a criminal charge does not of itself mean costs should be awarded.  As counsel also

acknowledged, the s 5(2) factors may inform the decision under s 8 as well as that under s 5 even although the s 8 discretion is broader.

Application for costs in respect of District Court hearing

Grounds of application

[10]     Turning then to the application for costs in respect of the District Court hearing.

[11]     In seeking costs Mr Callaghan referred me to the criteria in s 5(2) and in particular (c), (d) and (f).   He advanced the following arguments:

1.        That Mr O   had established his innocence of the charges.

2.That the decision to initiate a criminal prosecution was inappropriate and/or unreasonable, the police failing to have regard or proper regard to:

i.The fact the two incidents were part of an ongoing protracted neighbourhood dispute which could and should have been resolved more appropriately in a civil forum.

ii.The issue of implied consent derived from the generally understood convention that cuttings may be returned to the property from where they came.

iii.Video  evidence  which  showed  Mr  Kraak,  the  neighbour, giving Mr O   express permission on 1 August to deposit the slashings.

iv.Evidence that between 30 July and 1 August Mr Kraak who knew of the convention, never contacted Mr O   to withdraw the implied consent arising from the convention.

v.        The possibility the video was a set-up.

Discussion

[12]     As will be readily apparent, the focus of Mr Callaghan’s submissions was on the reasonableness and propriety of the police investigation.  That was an appropriate focus and consistent with case law, such as, R v Gillespie (1993) 10 CRNZ 668.  The manner in which a prosecution has been investigated and brought to trial is a particularly important consideration when determining these sorts of applications.

[13]     I have carefully considered all of the points made by Mr Callaghan and he has certainly made them well.

[14]     However, I am unable to accept that any of the matters he has raised when viewed collectively or individually would justify an award of costs under the Act.

[15]     The difficulty I face is that the police investigation was never the subject of any scrutiny on appeal and no findings were ever made.  Even more fundamentally none of these matters were ever put to the officer-in-charge of the case who did give evidence.  It was also never put to the neighbours that their video was a set-up.  In those circumstances I consider it would be wrong for me to make adverse findings against either the police or the neighbour.

[16]      I accept that the video was a very important piece of evidence but of itself it did not necessarily provide Mr O   with a watertight defence.  Of itself it did not resolve whether what he was doing that day was in strict compliance with the express permission.

[17]     Moreover,  there  were also  unresolved  issues  about  the  type  of  wire  and whether the wire was emeshed inextricably or just wrapped around the slashings, these being issues which bore on consent and the application of the convention. Those matters needed to be tested in evidence and required adjudication.  As Ms Bell put it, the police are not the Judge and jury.

[18]     I note too that according to the evidence of the police officer, Mr O   had told him that what he had done was to go onto the neighbours’ property to pick up their rubbish and put it in their driveway.   There was also evidence from the neighbours that Mr O   had so obstructed their driveway with the cuttings that it was impossible for them to drive their vehicles.

[19]     Mr O   is significantly out of pocket in defending these charges and it is difficult not to feel some sympathy for him.  However, for obvious policy reasons the law is quite clear that in itself the fact he has been successful is generally not enough.  There has to be ‘something more’ and having regard to the case law and to the statutory provisions I am not satisfied that the required ‘something more’ does exist in the circumstances of this case.

Application for costs in respect of the appeal hearing

[20] As regards the costs of the appeal hearing, Mr Callaghan relies on s 8(6) and the fact that arguments he advanced on appeal raised novel issues about consent under the Litter Act.

[21] There is very little authority on the Litter Act and certainly the arguments raised were novel.

[22]     However, the difficulty with that submission is, as Mr Callaghan himself properly acknowledged, that the appeal did not turn on those novel issues or require any consideration of them.  The reason Mr O   won his appeal was because the Justices failed to explain why they had drawn a distinction between the 1 August incident and the 30 July incident.   I was unable to fill the gaps because the Justices also failed to make findings on crucial issues such as the type of wire and whether it was enmeshed. A rehearing was not warranted.

[23]     In my decision, I also concluded that while Mr O   may have won the appeal it would be wrong to regard it as vindication.  Aspects of the evidence did not reflect well on him.   I said I agreed with the Justices that there was fault on both sides.

[24]     At today’s hearing Mr Callaghan seized on the comment I had made about there being fault on both sides.  He submitted that because there was fault on the part of the complainants, it would be unfair  they should in effect escape ‘scot free’ while Mr O   is, as I have said, significantly out of pocket.    However, insofar as it was being suggested I should even up the score as it were by awarding costs that, of course, is not the function of the Costs in Criminal Cases Act.  In any event, what I primarily meant by fault was Mr O  ’s, in my view, provocative conduct in blocking the driveway.   The neighbours’ fault in my assessment of the evidence consisted in their failure to clear the slashings and leaving them for so long.

[25]     All of that said I am, however, prepared in the exercise of my discretion to make an award of costs in respect of the appeal.  Although as it turned out the novel legal issues were not determinative, the fact remains they were properly raised and costs would have been incurred in preparing the relevant argument.   As Ms Bell acknowledged, the discretion under s 8 is broader than under s 5 and accordingly I am prepared to make an award.

[26]     As for the amount of the award, the scale costs are $226 per half day. The appeal hearing was a half day.

[27]      Under s 13(3) of the Act I do have the power to award costs in excess of the scale.   However, it is well established that Courts are not entitled to invoke the power simply because they consider the scale inadequate.  Under s 13(3) the power to award costs in excess of the scale is expressly subject to the Court being satisfied that having regard to the special difficulty, complexity or importance of the case, the payment of greater costs is desirable.  This case does not fit that description for the reasons I have already traversed.

[28]     In the circumstances I am therefore not prepared to award costs in excess of the scale.

Outcome

[29]     The outcome of this morning’s hearing is that the application for costs in respect of the District Court hearing is dismissed.

[30]     The application, however, in respect of the appeal hearing is allowed and costs awarded under s 8(6) of the Act in the sum of $226.

Solicitors:

M J Callaghan, Christchurch, for Applicant

Raymond Donnelly & Co, Christchurch, for Respondent