R v Allison - [2020] NZHC 2583

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-19

[2020] NZHC 2583

BETWEEN
THE QUEEN

Appellant

AND

EOIN MURRAY ALLISON

Respondent

Hearing: 15 September 2020

Appearances:

R K Thomson for Appellant (by VMR)

W J Wright and M Bae for Respondent (by VMR)

Judgment:

1 October 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 1 October 2020 at 3.45 pm

Registrar/Deputy Registrar Date:

R v ALLISON [2020] NZHC 2583 [1 October 2020]

[1] The respondent, Eion Allison, shot and killed his neighbour’s dog, Flex. The Crown charged him with one offence under the Animal Welfare Act 1999 and two offences under the Arms Act 1983. At his Judge-alone trial, and after the Crown case had closed, Mr Wright (for Mr Allison) applied for the dismissal of the charges under s 147 Criminal Procedure Act 2011. Judge D J L Saunders, upon hearing submissions, dismissed all three charges and discharged Mr Allison.1

[2] Mr Allison then applied for an order that the Police pay him indemnity costs of $50,000 together with witness expenses of $1,874.40. The Crown acknowledged the Court’s discretion to award costs but submitted this was not a case for costs in excess of scale, and that any costs awarded should be from the fund administered by the Ministry of Justice and not awarded against the Police.

[3] The Judge, by reference to his calculation of a fair and reasonable fee for the steps in the proceeding, ordered that the Ministry of Justice pay a sum of $47,265 on account of costs and $1,874.40 on account of disbursements (both including GST) (the costs decision).2

Appeal

[4] The Solicitor-General appeals the costs decision on the grounds that the Judge erred by:

(a)failing to take into account relevant considerations in the exercise of his discretion, particularly that the prosecution was brought and conducted in a proper manner;

(b)ordering costs in excess of scale without applying s 13 Costs in Criminal Cases Act 1967 (CCCA); and

(c)awarding costs on an indemnity basis when there was no proper basis to do so.

1 R v Allison [2019] NZDC 8572.
2 R v Allison, DC Christchurch CRI-2017-012-2123, 28 May 2020 [costs judgment]

Conduct the subject of the charges

[5] Mr Allison lived next to the Brosnahan family on the outskirts of Dunedin. The Brosnahans’ daughter owned an eight month old Labrador/Huntaway cross named Flex.

[6] The incident with which Mr Allison was subsequently charged occurred on 30 August 2017.

[7] Approximately one week earlier, Mr Allison had spoken to Ms Brosnahan, expressing concern that Flex had been in the Brosnahans’ paddock chasing sheep. He stated that she needed to make sure the dog was properly restrained and looked after. He told her that she was lucky that he had not shot the dog.

[8] On 30 August 2017, Ms Brosnahan had left Flex tied up at his kennel before leaving for school. Ms Brosnahan’s grandfather, Mr Brosnahan Snr (since deceased),…

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 [2020] NZHC 2583
Case: [2020] NZHC 2583
Decision Date: 1 October 2020

CaseChat Overview and Summary

The appeal in R v Allison concerns the costs decision of Judge Saunders in the District Court at Christchurch. The respondent, Eion Allison, was charged with one offence under the Animal Welfare Act 1999 and two offences under the Arms Act 1983, all relating to the shooting of a dog, Flex. The charges were dismissed under s 147 Criminal Procedure Act 2011, and Mr Allison applied for indemnity costs of $50,000 and disbursements of $1,874.40. The Crown opposed the application, arguing that the case did not warrant costs in excess of scale, and that any costs awarded should be from the Ministry of Justice and not against the Police. The Judge awarded the full indemnity costs and disbursements. The Crown appealed the costs decision on the grounds that the Judge erred by failing to take into account relevant considerations, ordering costs in excess of scale without applying s 13 Costs in Criminal Cases Act 1967, and awarding costs on an indemnity basis when there was no proper basis to do so. The Court found that there was an error in the District Court decision to award indemnity costs to Mr Allison, but it was appropriate that he be awarded costs. The case was not of such special difficulty, complexity, or importance as to make it desirable that costs be paid in a sum greater than the scale. The Court quashed the costs direction and ordered that costs of $339 together with a disbursement of $1,874.40 be paid by the Ministry of Justice to the respondent.

Orders