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…

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 R v Allison

Details

AGLC: R v Allison [2021] NZHC 1348
Case: [2021] NZHC 1348
Decision Date: 9 June 2021

CaseChat Overview and Summary

The case of R v Allison involved a dispute regarding the costs awarded to the respondent, Eion Murray Allison, in relation to his District Court appearances. The appeal by the Solicitor-General to the High Court was allowed, resulting in the quashing of the District Court's costs judgment and the direction for the Ministry of Justice to pay for Mr. Allison’s costs. However, it was later discovered that the scale costs calculated by the Court were in error. The errors included using an incorrect half-day rate and an incorrect multiplier for the number of half days involved. Consequently, Mr. Allison applied for the correction of the costs award under the Criminal Procedure Rules 2012.

The central legal issues the court needed to decide were whether the errors in the costs calculations were indeed accidental slips or omissions and, if so, whether the corrected amount of $2938 was a just and reasonable sum to be awarded towards Mr. Allison’s defence costs. The court also had to consider whether Mr. Allison's behaviour during the proceedings warranted a reduction in the awarded costs.

The court found that the errors in the costs calculations were indeed accidental slips, as evidenced by the incorrect half-day rate and the incorrect multiplier for the number of half days. While the submissions regarding the momentary nature of some appearances and the defendant’s behaviour were considered, the court concluded that the corrected amount of $2938 was a just and reasonable sum towards Mr. Allison’s defence costs. The court took into account the statutory requirement to consider the defendant’s behaviour but ultimately determined that the full corrected amount was appropriate.

The court ordered that the previous direction for the Ministry of Justice to pay $339 in costs be corrected to now read that $2938 in costs, along with a disbursement of $1874.40, be paid by the Ministry of Justice to Mr. Allison.

Orders