R v C

Case [2023] NZHC 3436 29 November 2023

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ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,

OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPLICANTS AND CONNECTED PERSONS PURSUANT TO SS 200 AND 202 CRIMINAL

PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-004-806

[2023] NZHC 3436

THE KING

v

C, H and W Applicants

Hearing: 29 August 2023

Appearances:

P Wicks KC, K Hogan and H Moore-Savage for the Crown S Lowery and J Suyker for C

M Corlett KC for H
Y Y Mortimer-Wang for W

Judgment:

29 November 2023

JUDGMENT OF GAULT J

(Costs applications)

This judgment was delivered by me on 29 November 2023 at 4:00 pm.
Registrar/Deputy Registrar

……………………………………

R v C, H and W [2023] NZHC 3436 [29 November 2023]

[1] Following acquittal on charges of obtaining by deception in relation to a donation made to the Labour Party,1 three defendants seek costs under the Costs in Criminal Cases Act 1967 (CCCA):

(a)C seeks a sum that is just and reasonable towards the costs of his defence, which totalled $610,286.19;

(b)H seeks indemnity costs in the sum of $770,514.25; and

(c)W seeks a sum that is just and reasonable towards the costs of her defence, which totalled $198,401.25.

[2] The Crown opposes all three applications. It says the circumstances of the case and the factors in s 5(2) of the CCCA do not justify costs awards.

Background

The charges

[3] Each defendant faced two (alternative) charges under s 240 of the Crimes Act 1961.

[4]Charge 1 in relation to the Labour Party donation was:

That YIKUN ZHANG, SHIJIA (COLIN) ZHENG, HENGJIA (JOE) ZHENG,
[C], [H] AND [W] between 10 March 2017 and 1 May 2018 at Auckland, by deception and without claim of right, directly or indirectly obtained possession of, or control over, any property, or any pecuniary advantage or benefit.

Particulars of the deception:

With intent to deceive the Labour Party Secretary and/or the Electoral Commission, the defendants adopted a fraudulent device, trick or stratagem whereby:

a)a donation of at least $34,840 made to the Labour Party on or about 28 March 2017 (“the Donation”) was paid via an intermediary bank account before being paid to, and retained by, the Labour Party; and

1 R v Zhang [2022] NZHC 2541.

b)five names were provided to create the illusion of five donations of sums less than $15,000 so as to conceal the full amount of the Donation and the identity of the actual donor.

Particulars of the benefit:

The Labour Party obtained possession of, or control over, property, namely the Donation, in circumstances where the amount of the Donation and the identity of the donor was not disclosed in the Labour Party’s Annual Return of Party Donations.

[5] The alternative charge 2 was the same except the particulars of the benefit were:

Particulars of the benefit:

The true donor of the Donation obtained freedom from any public scrutiny regarding the Donation, in circumstances where the amount of the Donation and the identity…

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 C

Details

AGLC: R v C [2023] NZHC 3436
Case: [2023] NZHC 3436
Decision Date: 29 November 2023

CaseChat Overview and Summary

In R v C, the High Court of New Zealand was asked to decide whether three defendants, acquitted on charges of obtaining by deception in relation to a donation made to the Labour Party, were entitled to costs under the Costs in Criminal Cases Act 1967 (CCCA). The defendants, C, H, and W, sought costs for their legal defences, which totalled $610,286.19, $770,514.25, and $198,401.25, respectively. The Crown opposed all three applications, arguing that the circumstances of the case did not justify costs awards. The court had to consider whether the prosecution acted in good faith, had sufficient evidence, and took proper steps to investigate any matter suggesting the defendants might not be guilty, among other factors outlined in s 5(2) of the CCCA. The court found that the Crown's failure to prove a benefit to the Labour Party was a significant investigative error but did not prejudice the defendants. The court also considered the defendants' conduct and the proportionality of the costs claimed. Ultimately, the court concluded that a costs order towards the costs of the defendants' defence under s 5 was not justified or appropriate. The applications for costs were dismissed.

Orders