R v Allison

[2021] NZHC 1348

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-000019

[2021] NZHC 1348

BETWEEN

THE QUEEN

Appellant

AND

EION MURRAY ALLISON

Respondent

Appearances:	R K Thomson for Appellant W J Wright for Respondent
Judgment:	9 June 2021
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 9 June 2021 at 3.00 pm

Registrar/Deputy Registrar

Date:

R v ALLISON [2021] NZHC 1348 [9 June 2021]

[1]        There is a matter relating to costs which had been awarded to the respondent in relation to District Court appearances which needs to be tidied up, as the parties agree. I now do so.

Background

[2]        Mr Allison was awarded indemnity costs in the District Court after a judge alone trial at which the Judge dismissed the three charges faced by Mr Allison and discharged him.1

[3]        The Solicitor-General’s appeal to the High Court was allowed, the District Court costs judgment being quashed and instead a direction made that the Ministry of Justice pay for Mr Allison’s costs $339 together with a disbursement of $1874.40.2 (The award of the disbursement is not affected by this judgment).

[4]        The amount of $339 costs which I fixed was calculated by reference to the maximum scale of costs prescribed under the Costs in Criminal Cases Regulations 1987.3 The Court (mistakenly) upon the basis of submissions filed calculated the costs payable to Mr Allison upon the basis of $113 per half day rather than the $226 per half day required in relation to a matter which goes to trial. The Court (also mistakenly) upon the basis of submissions filed calculated the $339 award by reference to three half days whereas significantly more were involved.

[5]        Mr Allison sought leave to appeal the High Court judgment. The focus of that proposed appeal however was on the quashing of the indemnity costs award and not

1      R v Allison [2019] NZDC 8572.

2      R v Allison [2020] NZHC 2583.

3 The maximum scales of costs applied because the High Court had determined, on the appeal, that under s 13 Costs in Criminal Cases Act 1967, the District Court should not have been satisfied that the payment of greater costs was desirable.

on the consequential calculation of scale costs. In the event, the Court of Appeal refused leave to appeal.4

The error discovered

[6]        At the point the course of litigation appeared to have been spent, it was discovered for Mr Allison that the scale costs I had calculated were in error.

[7]        Mr Allison applies for correction of the costs award under r 1.6 Criminal Procedure Rules 2012. Thereby the Court is empowered to correct an order where it contains an error arising from any accidental slip or omission. For the reasons which follow there were clearly in this case errors arising from accidental slips in the costs calculations which calls for correction.

[8]        The first error arose through the adoption of a half day rate of $113 instead of the correct rate of $226.

[9]        The second error arose from the multiplier adopted, namely three (half days). That multiplier represented the half days of trial. On the basis of submissions filed by Mr Allison and Ms Thomson, it is clear that under the Regulations there were in fact qualifying appearances on 13 half days. Those include the numerous appearances preceding the trial, including case review hearings and callovers.

[10]Once that point is reached there are two remaining considerations:

(a)A “just and reasonable sum” — under s 5(1) of the Act, the Court’s power is to award such sum as it thinks “just and reasonable” towards the cost of the defence. Ms Thomson refers to Lin v Police as a case in which this Court recognised that when an appearance is “no more than momentary” something less than the scale rate for a full half day may be ordered.5 Ms Thomson submitted that four of the appearances may be so described.

4      Allison v R [2021] NZCA 140.

5      Lin v Police [2013] NZHC 1289 at [12].

(b)The defendant’s behaviour — under s 5(2)(g) of the Act the Court in the exercise of its discretion in relation to costs is required to have regard to whether the behaviour of the defendant in relation to the proceedings was such that a sum should be paid towards the costs of his defence. Ms Thomson observes that in this case three of the half days claimed are afffected by such behaviour on the part of the defendant, namely through an ultimately withdrawn application under s 147 Criminal Procedure Act 2011 and through his unsuccessful opposition to the Crown’s hearsay application.

Discussion

[11]The correct calculation of scale costs, if all 13 half days were included, was

$2938.

[12]      While the two matters raised by Ms Thomson were appropriately brought to the Court’s attention, and I take them into account, I am satisfied that $2938 was a just and reasonable sum to be awarded towards the costs of Mr Allison’s defence.

Orders

[13]I order:

(a)The order appearing in the judgment in R v Allison [2020] NZHC 2583 at [70](b) is corrected to now read:

(b)There is a direction that costs of $2938 together with a disbursement of $1874.40 be paid by the Ministry of Justice to the respondent.

Osborne J

Solicitors:

Crown Law, Wellington

Wilkinson Rodgers, Dunedin