R v Burr - [2016] NZHC 1388

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-031-001017 [2016] NZHC 1388

THE QUEEN

v

PAUL ROBERT BURR

Hearing: 15 June 2016

Counsel:

J Temm for Applicant
B D Vanderkolk for Crown

Judgment:

24 June 2016

COSTS JUDGMENT OF BROWN J

Introduction

[1] On 19 December 2013 Lincoln Kidd, an employee of Paul Burr Contracting Ltd, was killed by a falling tree which had been felled by Paul Burr, the applicant, using a Volvo machine equipped with a Warratah head.

[2] Arising from that incident a number of charges were laid against the company and Mr Burr. In a trial at the High Court at Palmerston North which spanned the period 24 August to 14 September 2015 two charges against Mr Burr were heard:

That PAUL ROBERT BURR on the 19th day of December 2013 at Levin being the operator of, and thereby in charge and control of a dangerous thing, namely a Volvo tree felling mechanical harvester with warratah head which in the absence of precaution or care may endanger human life, omitted without lawful excuse to take reasonable precaution or care to avoid such danger, thereby causing the death of Lincoln Isaac Kidd and thereby committed manslaughter.

R v BURR [2016] NZHC 1388 [24 June 2016]

That PAUL ROBERT BURR on the 19th day of December 2013 at Levin, being a director of Paul Burr Contracting Limited (the company) did participate in the failure of the company which, knowing that its failure to take any action would be reasonably likely to cause serious harm to another person, failed to take all steps to ensure that no employee, namely Lincoln Isaac Kidd, was harmed at work in contravention of s 49(2) of the Health & Safety in Employment Act 1992.

[3] On 14 September 2015 the jury acquitted Mr Burr on both charges.

[4] On 25 November 2015 Mr Burr filed an application for costs under the Costs in Criminal Cases Act 1967 (the Act). He seeks an award of costs in respect of:

(a) trial defence costs of $153,577.25;

(b) expert witnesses costs of $19,424.10;

(c) accommodation and disbursements costs of $11,721.32.

Costs in criminal cases: legal principles

[5] The jurisdiction to award costs to a defendant acquitted at trial is conferred by s 5 of the Costs in Criminal Cases Act which states:

5 Costs of successful defendant

(1) Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise the Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and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…

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 Burr

Details

AGLC: R v Burr [2016] NZHC 1388
Case: [2016] NZHC 1388
Decision Date: 24 June 2016

CaseChat Overview and Summary

Paul Burr was charged with manslaughter and a breach of the Health and Safety in Employment Act 1992 in relation to the death of Lincoln Kidd, an employee of Paul Burr Contracting Ltd, who was killed by a falling tree. The case proceeded to a trial at the High Court at Palmerston North, where Mr Burr was acquitted on both charges. Following his acquittal, Mr Burr applied for costs under the Costs in Criminal Cases Act 1967. The court considered the application, reviewing the circumstances of the case against the framework of the seven s 5(2) considerations, including whether the prosecution acted in good faith, the adequacy of the investigation, and the defendant's behaviour. The court found that the investigators allowed themselves to be distracted by several matters, which were particularised in the context of the Health and Safety in Employment Act charge, such as the adequacy of tailgate meetings and issues concerning hi-visibility apparel and effective communication by radio on site as well as the two incidents involving the bringing down of overhead power lines. In doing so they failed to identify and resolve a small, but critical, factual issue concerning Lincoln Kidd's combi fuel can, a can which was taken to the scene of the accident by Lincoln Kidd but which, after the accident, was demonstrated to be in a vehicle near the skid site. The court found that an award of costs was warranted in recognition of that failure and the possible outcome noted, but reduced the quantum of the amount to reflect the fact that the applicant (via Mr Caldow and Mr Pakau) not only contributed to the Crown's perception that Lincoln Kidd did not return to the skid site but also failed to identify and bring to the Crown's attention the fact that Lincoln Kidd's combi fuel can was so plainly visible in Mr Pakau's ute in photograph 16. The court awarded 17.5 per cent of the total sum of costs, witness expenses, and disbursements, which it calculated to be $32,326.47.

Orders