R v Lloyd-Jones

[2024] NZHC 2085

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-096-002711

[2024] NZHC 2085

R

v

PAUL BARKER LLOYD-JONES

Hearing:	22 July 2024
Appearances:	S A H Bishop and S T Hartley for the Crown P V C Paino for Paul Lloyd-Jones
Judgment:	30 July 2024

JUDGMENT OF GRICE J

(Application for costs)

Introduction

[1]                  On 21 November 2023, Mr Lloyd-Jones was acquitted in a majority verdict following a three-and-a-half week trial. He and three co-defendants faced manslaughter charges relating to an incident which took place on 4 September 2019 outside a bar owned by Mr Lloyd-Jones. All the defendants were acquitted on the charge; three were found not guilty by a majority.

[2] Mr Lloyd-Jones now seeks costs under the Costs in Criminal Cases Act 1967 (the CCCA). He seeks costs in excess of the scale costs in the Costs in Criminal Cases Regulations 1987 (the Regulations). He contends that the police ought not to have charged him and that the prosecution was brought and conducted unreasonably in

R v LLOYD-JONES (COSTS) [2024] NZHC 2085 [30 July 2024]

several respects. The Crown opposes costs on the basis that Mr Lloyd-Jones has not pointed to any relevant circumstances that justify an award under the CCCA.

Background

[3]                  At the time of the incident Mr Lloyd-Jones was the owner  of  a  bar  in Upper Hutt.

[4]                  At around 10.30 am on 4 September 2019, the deceased went into the bar. He was behaving strangely. The deceased remained there until approximately 4.15 pm, at which point his behaviour became disruptive and the police were called. Police removed the deceased from the bar and took him home. He was served with a trespass notice and told not to return to the bar.

[5]                  At approximately 5.48 pm, the deceased returned to the bar in contravention of the trespass notice. He was asked to leave by staff but refused, at which point he was advised that the police had been called. An altercation then developed near the door to the bar. Some of the defendants (including Mr Lloyd-Jones) were involved in physically removing the deceased from the bar. All the defendants then restrained the deceased on the pavement while awaiting the arrival of the police.

[6]                  Mr Lloyd-Jones’ role in the events started when he was called to the bar due to the disruption caused by deceased, shortly before the altercation took place. He was called by one of his daughters who worked in the bar, and was already aware of the deceased being trespassed as he had been at the bar earlier that day to run some errands. Mr Lloyd-Jones arrived at the bar and started exchanging words with the deceased. He was then part of the group of defendants who pushed the deceased out of the bar and held the deceased down until the police arrived. Mr Lloyd-Jones knelt next to the deceased holding his shoulders down.1

[7]                  The deceased was restrained by the defendants face down on the pavement for approximately 12 minutes. Police had been called when the deceased initially became disruptive in the bar, and a number of further calls to police were made, including

1      Mr Lloyd-Jones’ positioning changed slightly during the period of restraint.

during that period of 12 minutes. Once police arrived, they realised the deceased had stopped breathing and attempted to resuscitate him, however he was pronounced dead at the scene.

[8]                  The bar staff closed the bar and cooperated with the police, including by handing over the hard drive with the CCTV footage. The police spoke to and obtained statements from the patrons in the bar and bystanders. Mr Lloyd-Jones did not immediately go to the police station to make a statement, however he and another defendant, a family member who worked in the bar, went a few days later by arrangement with the police and gave DVD interviews. The third defendant went to the station but did not give an interview. The fourth defendant, a bar patron, also did a DVD interview.

[9]                  Mr Lloyd-Jones then did not hear from police until he was asked to go to court for his first appearance on 12 October 2021. He was informed he would be charged with manslaughter, which Mr Paino says had a significant impact on his reputation as the owner of the bar. The Crown notes that the period between Mr Lloyd-Jones’ initial interview with police and his first court appearance coincided with the Covid-19 pandemic, which contextualises the delay that took place during that time.

[10]              Mr Paino notes that sadly Mr Lloyd-Jones’ wife passed away within days of his first court appearance on the charge of manslaughter. Mr Lloyd-Jones had booked a flight from Wellington to Manila to visit her family. The Crown did not object to bail being granted, however Mr Lloyd-Jones said that the bail conditions imposed proved to be unworkable and too costly to implement, so he abandoned his trip.

[11]              Mr Paino highlights that Mr Lloyd-Jones was not kept advised by the police about what was happening, and he did not have any opportunity to speak to police prior to his first appearance at the Hutt Valley District Court on 12 October 2021. At the second call of the matter on 29 October 2021, not guilty pleas were entered and a trial date of 3 October 2022 was set. The Crown notes that at that hearing, counsel for the prosecution indicated they would be engaging an overseas expert about the cause of death, and there was a possibility the trial date would need to be moved to

accommodate  this.     The  matter  was  set  down  for  a  case  review  hearing  on   3 February 2022 and call-over on 8 April 2022.

[12]              According to the defence, the trial date initially set was adjourned at the Crown’s request, because the police charged the fourth defendant after the date had been allocated and sought leave for his charge to be heard together with the other defendants. No reason was given for the delay in charging the fourth defendant.

[13]              However, the Crown says that by the penultimate week of August 2022, it had still had not received its medical expert report. Defence counsel requested that the Crown seek an adjournment of trial to enable the defence to have time to instruct their own experts to review the Crown’s expert reports. The Crown acceded to this and requested an adjournment of the 3 October 2022 fixture.2 The Crown noted in that memorandum that it had been unable to engage the expert originally approached so had  engaged  Dr   Jubran   instead.3   On  30  August   2022,   and   confirmed  on   5 September 2022, a new trial date was set for 30 October 2023. It was common ground that an adjournment would be needed both to enable the Crown to obtain the expert evidence but also for the defence to respond if necessary. No opposition was raised to the adjournment.

[14]              The Crown received Dr Jubran’s expert report on 30 August 2022, and says this analysis clarified the contribution made to the death by the manner in which the defendants’ restrained the deceased on the pavement. This also led to charges being laid against the fourth defendant on 5 October 2022. On 20 October 2022, the Crown filed an application under s 138 of the Criminal Procedure Act 2011 (the CPA) seeking leave for that charge to be heard together with the charges against the other defendants. Leave was granted without opposition by February 2023, following disclosure to the fourth defendant.

[15]              Mr Paino further notes that due to the Crown’s refusal to disclose information about one of the witnesses, a pre-trial hearing was required under s 30 of the

2      By memorandum dated 29 August 2022.

3      Dr Jubran is a United States based medical intensivist or intensive care specialist. She is a specialist in respiratory and pulmonary medicine.

Criminal Disclosure Act 2008. At that hearing, the Court ruled that the Crown had to disclose National Intelligence Application (NIA) records and a job sheet relating to the witness’ interactions with police. The Crown submits that this ruling was made in terms which indicated the Court accepted the force in Crown’s concerns about the privacy of the witness, which had formed the basis for its opposition.

[16]              The Crown says that it was established at trial that Mr Paul asphyxiated to death as a result of the defendants restraining him on the ground for 12 minutes, and that there was no scope for reasonable doubt that a homicide occurred. However, the defendants were acquitted, likely on the basis of self-defence raised by all the defendants.

Approach to costs in criminal cases

[17]              The CCCA governs the awarding of costs following criminal proceedings. Section 5(1) of the CCCA provides that where a defendant is acquitted, the court has discretion to order that the defendant be paid such sum as it thinks just and reasonable towards the costs of their defence.

[18]              Section 5(2) sets out the following circumstances that the court may have regard to in deciding whether to grant costs and the amount of any costs granted:

(a)whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b)whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c)whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d)whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e)whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:

(f)whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g)whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

[19]              These criteria are not exhaustive, as s 5(2) requires the court to have regard to all relevant circumstances, and explicitly notes that the  court’s  discretion under subs (1) is not limited or affected. That said, the subs (2) criteria have been recognised as providing a useful and logical structure for the court’s analysis in determining whether an award of costs is just and reasonable in the circumstances.4

[20]              The CCCA also specifies that there is no presumption either for or against the granting of costs in any criminal case.5 No defendant is to be granted costs by reason only of the fact that they have been acquitted,6 nor are costs to be refused by reason only that the proceedings were properly brought and continued.7

[21]              The Court of Appeal in R v Lyttle, summarised the principles for dealing with awards under the CCCA, drawing on those developed by Wylie J in Banks v R, as follows:8

(a)While success in the proceeding is a jurisdictional prerequisite to an application, the fact of success is neutral when the discretion whether or not to award costs is exercised.

(b)The court has a broad discretion when determining whether or not to make an award under the CCCA.

(c)The seven matters set out in s 5(2), or those that are relevant, are to be considered. The factors set out in s 5(2) are also qualified by the words “[w]ithout limiting … the court’s discretion”, so regard should be had to all relevant circumstances, and not simply those set out in s 5(2). There is a danger in narrowing relevant considerations by reference to s 5(2) or in trying to fit particular circumstances into one of the factors listed in s 5(2).

(d)The matters set out in s 5(2)(a) to (e) refer in a general way to the propriety, conduct and strength of the prosecution case. Affirmative answers might tend to inhibit or weigh against an award of costs or diminish the quantum of the same.

4      See R v Connolly (2006) 22 NZTC 19,844 (HC); and R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [21]–[23].

5 Costs in Criminal Cases Act 1967 [CCCA], s 5(3).

6      Section 5(4).

7      Section 5(5).

8      R v Lyttle [2022] NZCA 52, [2022] NZAR 117 at [18] citing Banks v R [2016] NZHC 1596 at [41].

(e)The terms “proper steps” and “in a reasonable and proper manner” in s 5(2)(c) and (d) mean something less than would be adopted by a reasonably prudent prosecutorial authority. It is a difficult burden to surmount.

(f)The fact that a prima facie case is established at a preliminary hearing, or that a judge refuses a discharge, is likely to support the conclusion that there was sufficient evidence at the commencement of the proceeding.

(g)The matters set out in s 5(2)(g) are concerned with behaviour justifying an award, and not with behaviour disqualifying an award.

(h)Costs are not to be awarded only because the defendant has been acquitted. An applicant must be able to point to some relevant circumstances, either within the criteria, or otherwise, that justify an award.

[22]              The Regulations provide a scale setting out the maximum costs that may be awarded under the CCCA, subject to s  13(3).9  The court retains a discretion under   s 13(3) to make an order for costs exceeding the maximum amount provided for in the Regulations if it is satisfied that is desirable, having regard to the special difficulty, complexity, or importance of the case.

[23]              It is noted that the approach under the CCCA regime differs from an award of costs under s 364 of the CPA, which is not relied on in this case.10 While s 364 is primarily intended to sanction prosecutors by awarding costs against them in cases of “significant procedural failures”, the purpose of the CCCA is primarily compensatory.11

Submissions

For the defendant

[24]              Mr Paino submits that it would be just and reasonable for the Court to exercise its discretion to award a payment towards Mr Lloyd-Jones’ legal costs. He focuses on the factors listed under s 5(2) subs (d) and (g). In respect of s 5(2)(d), Mr Paino submits that the investigation into the defence was not conducted in a reasonable and

9      Costs in Criminal Cases Regulations 1987, reg 3 and sch 1. See also CCCA, s 5(1) which provides that an award of costs is subject to any regulations made under the CCCA.

10     Lyttle, above n 8, at [211].

11     Lyttle, above n 8, at [13]; and R v Bublitz [2018] NZHC 373 at [107]; aff’d Bublitz v R [2019] NZCA 379 at [29]–[44].

proper manner, noting in particular the delay in charging Mr Lloyd-Jones and later charging the fourth defendant. Mr Paino further submits that in terms of s 5(2)(g), Mr Lloyd-Jones fully cooperated with the investigation and trial process.

[25]              Mr Paino submits that other relevant factors that go to an award of costs include the length of the trial, the volume of disclosure, the number of defendants, the late charging of the fourth defendant and subsequent adjournment of the first trial, and the Crown calling an unreliable witness and putting her forward as a witness to be believed in their closing address. Furthermore, the other defendants were legally aided, which was noted in Re Macaulay as a reason for granting costs.12

For the Crown

[26]              The Crown contends that the points raised by Mr Paino do not amount to identification of relevant circumstances to justify an award of costs.

[27]              The Crown submits that the police and the Crown did not adopt an attitude “something less than would be adopted by a reasonably prudent prosecutorial authority” in charging Mr Lloyd-Jones or proceeding to trial.13 It was always properly open for the jury to accept the prosecution case, as Mr Lloyd-Jones accepted in relying on an affirmative defence in the nature of a justification for his acquittal. It was proper that he be required to give that answer at trial.

[28]              The Crown further contends that, although regrettable, the delays in proceeding to trial do not rise to the level of justifying an award of costs in themselves. Moreover, the Crown did not act unreasonably in relation to any of the pre-trial matters or issues referred to in support of the application. There is no “nexus between those failures and [the] acquittal” ultimately entered in Mr Lloyd-Jones’ case.14 As the “Court’s ability to award costs in favour of an acquitted defendant is designed to compensate for the pecuniary loss suffered by having to defend flawed charges”, and nothing in the Crown’s position taken on those applications contributed to the acquittal or

12     Re Macaulay HC Wellington T151/88, 26 March 1991.

13     Lyttle, above n 8, at [18(e)].

14     Murphy v R [2021] NZHC 2023 at [24] citing McLeod v R [2016] NZHC 221 at [19].

demonstrated  that  the  charges were flawed.    Those matters are submitted to be immaterial for costs purposes.

[29]              The Crown also noted that it had no need to contact Mr Lloyd-Jones after the DVD  interview.  This  provided  a  detailed   account   of   events   recounted   by Mr Lloyd-Jones in the presence of his lawyer, Mr Paino.

Analysis

[30]              Mr Paino emphasises the costs to Mr Lloyd-Jones in facing and defending the charges, were in the region of $84,000. There was also the damage to his reputation, diversion from his business, and being unable to take a trip to the Philippines. He also points out that the other defendants were legally aided.

[31]              Mr Paino directed his submissions to the grounds relevant to this case and to s 5(2). He emphasised the two-year delay in bringing the charges, as well as the adjournment of the trial. He noted in particular the full cooperation of Mr Lloyd-Jones and his directions to his staff to cooperate with the investigation. Mr Paino submitted that the cooperation and provision of an early and detailed DVD interview gave the prosecution evidence, which supported Mr Lloyd-Jones’ claim under s 5(2)(c) as to whether there was sufficient evidence to support the conviction. This was because Mr Lloyd-Jones’s statement made it clear self-defence was strongly in play from the outset.

[32]              Mr Paino contended that the delay of itself was one factor, but that it also went to the ground in s 5(2)(d), in that the investigation was neither reasonable nor proper in view of the delay. The delay was unexplained. Mr Paino emphasised that delay counted against the propriety of the investigation in the circumstances. He says while the Crown in its submissions noted the delays were “regrettable”, there were in fact consequences for Mr Lloyd-Jones, and he had received no indication even that the investigations were ongoing.

[33]              Mr Paino also acknowledges that the Covid-19 pandemic (and related lockdowns) occurred in the two-year period between the events at the bar giving rise to the charges, and the laying of the charges. However, he said there was no particular

evidence as to the effect of the lockdown nor were there dates provided to indicate when the lockdown affected the investigation.

[34]                While the Crown does not rely on it heavily as a reason for the delay, I consider that the fact of the Covid-19 pandemic and associated lockdowns may be taken into account by the Court, even without any specific evidence as to how it particularly affected this investigation. Those events caused delays in all aspects of life including the prosecution and court processes. It was noted as a factor in  Murphy v R.15 It is not clear from that judgment whether specific evidence was adduced on the issue, but the Court appears to have accepted the Covid-19 events as a factor in a case where there was a four-year delay in laying charges, noting that no fault could be attributed to the prosecution for the delays.

[35]I now turn to the specific issues raised as they relate to the s 5(2) grounds.

Section 5(2)(a) — whether the prosecution acted in good faith in bringing and continuing the proceedings

[36]              No allegation is made that the prosecution acted other than in good faith. There is nothing to suggest otherwise. As Ms Bishop pointed out in her submissions in response to Mr Paino’s comments concerning a recent case involving costs awarded against the Crown, that case was in the context of a claim under the CPA and the award was a penalty for the actions of the prosecutor, not a compensatory payment as sought here.16

Section 5(2)(b) — whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence

[37]              Mr Paino submits that the prosecution against Mr Lloyd-Jones was improperly brought and that he should not have been charged with manslaughter. He suggests it would have been in the public interest not to prosecute. Mr Paino says that the deceased was only restrained because of his behaviour and the delay in the police’s arrival on the scene. In his oral  submissions he emphasised the reasonableness of  Mr Lloyd-Jones’ belief that he was acting in self-defence, in particular that there was

15     Murphy v R, above n 14, at [15] and [23].

16     The case appears to be: R v Johnson [2023] NZHC 2948.

no striking, kicking or other aggressive behaviour toward the deceased. In addition, the defendants expected the police to arrive much more quickly. The CCTV evidence supports this as do interviews and other evidence that a number of calls were made to the police.

[38]              Mr Paino argued that the self-defence evidence was strong, and that should have been taken into account by the police in considering whether there was sufficient evidence to support the conviction of Mr Lloyd-Jones. This was not a case where the contrary evidence which might have been a reason for acquittal only emerged at a late stage. Mr Paino pointed out that Mr Lloyd-Jones’s DVD interview, given days after the event, clearly laid the basis for self-defence. He also noted that other witnesses, save one, largely gave evidence consistent with self-defence.

[39]              The Crown submits that there was considerable evidence supporting the laying of the charge from the commencement, including:

(a)The results of the post-mortem investigation establishing that compression asphyxia was the operative cause of death.

(b)The CCTV footage and the defendants’ statements to Police which made clear how the compression asphyxia had resulted, including by Mr Lloyd-Jones applying pressure to the deceased’s shoulder area while the deceased lay prone on the ground for 12 minutes.

(c)The CCTV footage showed Mr Lloyd-Jones acting aggressively toward the deceased in the time leading up to the altercation and being held back by other members of his family.

[40]              On that basis it was properly open for the Crown to contend, and the jury to accept, that Mr Lloyd-Jones was not acting in self-defence, or at least was not acting reasonably.

[41]              I accept the Crown’s submissions in relation to the sufficiency of evidence for the charge to be laid and to go to the jury. While self-defence was in play, as was apparent from the DVD interviews (and other evidence), in my view, there was more than enough evidence to go to the jury which might negate self-defence. This evidence

included the CCTV footage and other footage taken in the bar. An available interpretation of that, and one which the Crown presented, was that the deceased’s behaviour in the bar was not sufficient to justify a claim of self-defence. The Crown argued that the footage suggested the deceased had not been the aggressor in events leading to his being “manhandled” out of the bar and restrained by four people holding him face down on the pavement. The evidence that went to jury was sufficient to suggest that Mr Lloyd-Jones was not acting in self-defence in the legal sense during the incident leading to death. However, that was a matter for the jury. Whether that was the reason for the jury acquitting Mr Lloyd-Jones cannot be known. This is unlike, for instance, Murphy where there was a judge alone judgment and earlier pre-trial ruling dismissing an application under s 147 of the CPA but “only on a narrower margin than for other defendants”.17

[42]              The Crown relied  on  specialist  medical  evidence  from  overseas  expert  Dr Jubran. This focussed the pulmonary and related effects of the restraint on the deceased. Dr Jubran’s report supported the Crown case that the restraint had caused the death by compression asphyxiation. Dr Jubran’s report also led to the charge against the fourth defendant. This was based on the fourth defendant holding the deceased’s legs, which according to the report detrimentally affected the deceased’s pulmonary and other functions. Dr Jubran was of the opinion that the method and length of time for which the deceased was restrained lying on his stomach, and the positioning of the defendants holding the deceased stomach down, led to the asphyxiation.

[43]              One of the defendants obtained a report from an overseas medical expert to contest the cause of death. Both experts’ evidence went to the jury. The Crown’s case that the deceased died as a result of compression asphyxiation caused by the restraint imposed by the defendants, including Mr Lloyd-Jones, was supported by evidence.

[44]              The Crown also argues that it was appropriate and in the public interest to bring the case. On the facts as I have outlined them, a death had occurred and the Crown evidence at trial was sufficient to support the charges and go to the jury. I accept there was a relevant public interest in charging the defendants and taking the matter to trial.

17     R v Murphy, above n 14, at [28].

In my view there was a realistic prospect of success by the prosecution taking into account the raising of self-defence.

Section 5(2)(c) — whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty

[45]              There is no particular  evidence or possible line  of investigation to  which  Mr Lloyd-Jones points which would support an allegation that the prosecution did not investigate any matter which suggested Mr Lloyd-Jones might not be guilty. The evidence supporting self-defence and notice that it would be raised was apparent from the outset and I have dealt with that above.

[46]              In closing, the Crown presented to the jury that self-defence was the only real possibility for them to consider. I accept the Crown submission that it properly framed “the question to the jury as two competing likelihood propositions”.18 This was both the evidence that could be seen as exculpating the defendants and the Crown’s answer to that evidence.

[47]              The Crown contrasts the present case with the circumstances in Lyttle, where an award of costs was made.19 In that case, the Crown was criticised for framing its case on the basis of the “prosecutor’s fallacy”, by selecting particular evidence to put before the jury which supported a finding of guilt, and leaving it “entirely to the defence to try to dislodge that view”.20

Section 5(2)(d) — whether generally the investigation into the offence was conducted in a reasonable and proper manner

[48]              Mr Paino submits that the investigation was not conducted in a reasonable and proper manner. He submits that despite Mr Lloyd-Jones fully cooperating, the prosecution took over two years to charge him. He was left in the dark during this time.

[49]              The Crown submits that there was no undue delay in advancing the prosecution. It says that it needed to secure the assistance of proper experts and

18     Lyttle, above n 8, at [143].

19 At [174].

20     At [140]–[143].

undertake careful investigation, especially given the public interest in a homicide investigation.

[50]              In the circumstances of the case, I accept that the prosecution needed time to ensure that the investigation was thorough and the evidence supported the charging of the defendants, particularly the medical expert evidence.

[51]              I acknowledge the  stress  and  cost  of  this  prosecution  and  the  trial  to  Mr Lloyd-Jones. In addition, he was coping with his wife’s death shortly after the charges were laid. However, there is also no suggestion that the delay in charging resulted in any prejudice to Mr Lloyd-Jones in advancing his defence.

[52]              Mr Paino also takes issue with the fact that the Crown waited until after the trial had been set down for hearing to advise that they wished to charge the additional defendant. He contends that that the laying of this charge was delayed despite the relevant evidence being available to the Crown since some time earlier. However, this overlooks the further evidence of Dr Jubran which was relevant to the fourth defendant being charged.

[53]              In relation to Mr Lloyd-Jones’ submission that the only reason he was charged was the behaviour of the deceased and the need to act in self-defence and the delay of the police. Both issues were matters for trial.

[54]              Mr Paino also noted that no chronology or evidence was provided to support the Crown’s contention that the first expert they had identified to do the specialist medical report had withdrawn, leaving them having to find another expert (Dr Jubran). He questioned the need for an overseas expert to be obtained at all. Ms Bishop indicated that given the way the applicant’s written submissions had been framed in their application it had not appeared necessary to file evidence concerning the events leading to the securing of Dr Jubran and her providing a report. However, there was no opposition to the adjournment at the time it was sought, nor was there apparently any issue raised about the appropriateness of obtaining an overseas expert. Dr Jubran was an expert in the relevant field and the Crown was entitled to engage her.

[55]              It was the evidence in Dr Jubran’s report which led to the decision to charge the fourth defendant. He appeared to play a lesser role given that he was restraining

the deceased’s legs, however Dr Jubran’s explained in her report her view that this played a role in the death.

[56]              I do not consider it is necessary for the Crown to provide a chronology or evidence on the causes of the delay surrounding obtaining Dr Jubran’s report. It is common ground that the first expert was unable to provide a report. The medical evidence was of a highly specialised nature. The mechanisms leading to the death were not straight forward. It is not uncommon for overseas experts to be retained when particular specialist evidence is required. Unfortunately this usually takes some time. It is also noteworthy that one of the defendants in this case obtained the report of an overseas expert to respond to Dr Jubran’s report.

[57]              Also, as I noted, there was no objection to the adjournment of the trial to enable the Crown to obtain and the defence to respond to the expert evidence.

[58]              Delay of itself will not be a factor demonstrating that the prosecution has acted unreasonably for the purposes of s 5(2)(d). The Crown acknowledges that in R v Reed costs were awarded in the context of an eight month delay between the police having evidence available to charge the defendant and actually arresting him.21 However, the Crown submits that it was not the delay in itself that led to this finding, but the totality of the circumstances, noting in particular that the defendant was led to believe that he would not be charged if acted as an informer for the police.22

[59]              In Murphy v R, a charge of participation in an organised criminal group resulted in an acquittal four and a half years after the alleged offending, and four years after the charges were laid.23 Gendall J dismissed the application for costs, noting that although the charge was ultimately not proven at trial, it was clearly properly laid and there was sufficient evidence to support the prosecution.24 In regard to delay, the Judge said that while delays did occur, these related in part to Covid-19 and there was no fault on the part of the Crown, therefore this factor was neutral.25 The Judge found that while Mr Murphy had acted reasonably and cooperatively throughout the

21     R v Reed [1980] 1 NZLR 758 (HC).

22     R v Reed, above n 4, at 763.

23     Murphy v R, above n 14.

24 At [19].

25 At [23].

proceeding, the prosecution had also conducted all matters reasonably and in a proper manner, and on a narrow margin costs were declined.26

[60]              Delay is a factor in favour of granting the application. However, I do not consider the delay was the fault of the Crown in the circumstances, nor that it was undue in the circumstances. The delay of two years between the events at the bar in September 2019 and the laying of the charge in October 2021 was not unreasonable given the nature of the investigation. The public interest was in ensuring careful consideration was given to the laying of the charges. There was a homicide involved, and the linking of the cause of death with the actions of the defendants involved evidence on complex medical issues. It was important that the police took time to ensure the evidence was properly considered, including a careful analysis of the CCTV evidence. I also accept delays are likely to have been exacerbated by the intervening Covid-19 pandemic and the lockdowns, although even without that factor I do not consider the delay was unreasonable in the circumstances.

[61]              There was further delay when the trial date was adjourned from October 2022 to October 2023. However, in view of the nature of the specialised medical expert evidence, it would not be uncommon that the evidence  could not be obtained in  New Zealand and an overseas expert would need to be located and briefed. It was not expected that the first expert located by the Crown would be unavailable. Given the significance of the evidence, it was not unreasonable for the Crown to seek time to locate an alternative expert. The time from the obtaining of that report and the decision to charge the fourth defendant in October 2022, and the unopposed joinder ordered in February 2023, was not unreasonable in the circumstances.

Disclosure

[62]              A further factor that is argued in support of the application is the Crown’s unsuccessful resistance to providing full disclosure of information relating to a bystander witness from the NIA records or files held by the police relating to that witness. In addition, police were directed to disclose the content of a job sheet about

26     Murphy v R, above n 14, at [27].

discussions with that witness concerning her coming to court. I directed disclosure following a pre-trial hearing.

[63]              Mr Paino submits that evidence of that same witness was unreliable, and it was therefore improper for the Crown to call her as a witness and to suggest in its closing address to the jury that her evidence was to be believed.

[64]              The Crown submits that it took a reasonable approach in circumstances where much of the material was personal to the witness and only indirectly of relevance, or in some cases, Ms Bishop maintained, not relevant at all. The Crown also submits it did not need to rely on the witness’ evidence to establish a proper basis for the jury to convict. Her eyewitness testimony was not necessary given the CCTV footage and the defendants’ own statements. In its closing, the Crown referred to the witness’ evidence merely as supporting this other evidence which had been offered. Therefore, it is contended that there is no basis to sanction the prosecution for having called the relevant witness, as the prosecution did not rely only on her evidence in bringing the charge.

[65]              In any event, the Crown submits that while certain details of the relevant witness’ evidence may not be easy to reconcile with the CCTV footage, it was predominantly consistent overall and did not warrant outright rejection. It is submitted that nothing in that witness’ evidence indicated that the prosecution was unreasonable in having laid or continuing to pursue the charges.

[66]              Ms Bishop emphasised that the Crown raised the issue of the witness NIA files held by the police on this witness pre-emptively as part of the disclosure process. She submitted that it was open to the Crown to meet its obligations by providing the disclosure list and note that the NIA files were withheld leaving it to the defendants to make an application for disclosure under s 30 of the Criminal Disclosure Act.

[67]              Ms Bishop pointed out that relevant privacy issues involving a witness who was a not involved except as a bystander, arose in relation to the NIA records. She noted that the Crown made the records available on a counsel only basis, and it was only some of the NIA records for which disclosure was contested. The Crown had categorised the records by relevance, and it was apparent that some of the records were only marginally relevant and would not have been admissible. However, applying the

broad test of relevance I directed the disclosure in the circumstances.27 Ms Bishop also pointed out the material in the NIA files was not used by the defence, indicating its relevance was not great.

[68]              In relation to the job sheet, which recorded conversations with the witness concerning her reluctance to give evidence, the Crown had disclosed a redacted version. The defendants sought an unredacted copy which I directed be disclosed.28 However, most of the time at the hearing was taken up with argument on the disclosure of the NIA records.

[69]              I do not consider that the fact that the Court was required to make a pre-trial ruling on the disclosure of the NIA files of a witness in this case would of itself support a claim for costs. There is no doubt that Mr Lloyd-Jones was put to further costs over the pre-trial application, but the Crown’s stance over the records was not unreasonable given the privacy interests at play and the nature of the records.

[70]              The Crown was successful in a mode of evidence application allowing the witness to give evidence from behind a screen. While it was apparent there were difficulties reconciling this witness’ evidence to other evidence in the trial, including the CCTV footage, it was not unreasonable for the Crown to call the witness nor to refer to her evidence in its closing. It was evidence that was appropriate to go to the jury.

[71]              In relation to disclosure generally, the Crown submits that, as acknowledged by Mr Lloyd-Jones, the volume of disclosure was of the amount to be expected for a three-and-a-half week manslaughter trial involving four defendants. Therefore there was nothing out of the ordinary regarding the volume of information and work involved in the trial.

[72]              I do not consider the issues raised under this head support an award of costs. The Crown acted reasonably in relation to the pre-trial matters and, in the case of the NIA records, responsibly made the application for determination pre-emptively.

27     R v Lloyd Jones [2023] NZHC 2299 at [33].

28 At [37].

Section 5(2)(g) – behaviour and cooperation of Mr Lloyd-Jones

[73]              Mr Paino submits that Mr Lloyd-Jones’ behaviour and cooperation throughout the investigation further justifies an award of costs in this case.   He notes that       Mr Lloyd-Jones encouraged his staff to cooperate with the investigation, they all made interviews to the police, and he fully complied with the directions of police on the evening in question.

[74]              The Crown does not deny that s 5(2)(g) in this case weighs more in favour of costs being awarded than against, but submits that this factor can independently do little to make out his entitlement to costs when assessed with the totality of the evidence.

[75]              The Court of Appeal in Lyttle noted that the matters in s 5(2)(g) are concerned with behaviour justifying an award, not with behaviour disqualifying an award.29 In Lyttle, the defendant’s “exemplary” cooperation with the Police and medical authorities was seen as weighing in favour of costs being awarded, but was attributed less weight than fact that the Crown’s case was fundamentally flawed.30

[76]              The Crown also submits that the police’s failure to speak to Mr Lloyd-Jones again before charging him is only relevant to costs if the defence can demonstrate that this led to Mr Lloyd-Jones being charged when he otherwise would not have been. This was not the case.

[77]              I accept that Mr Lloyd-Jones’ cooperation was of assistance in the investigation and that it weighs in favour of an award of costs. However, in light of the other factors, I do not consider this factor is sufficient to justify costs being granted overall.

Overall assessment

[78]              On my analysis overall, against the criteria set out in s 5(2), I do not consider there is a sufficient basis for an award of costs to be made in favour of Mr Lloyd-Jones. I do not consider the factors raised about the decision to prosecute and the continuation of the charges, in view of the early indication of self-defence, weigh heavily in favour

29     Lyttle, above at n 8, at [18(g)].

30 At [144].

of the application for costs. The Crown’s case, including the contesting of self-defence, was supported by sufficient evidence to go to the jury. I accept that the prosecution was required to undertake a careful investigation and was not unreasonable in prosecuting based on public interest factors. It had a realistic chance of a successful prosecution based on the evidence.

[79]              Mr Lloyd-Jones bore the costs of the pre-trial hearing, but the Crown did not act unreasonably in opposing disclosure, despite the ruling requiring disclosure. The issue in relation to the job sheet was dealt with at the same time as the NIA disclosure hearing. That argument did not add substantial time to the hearing, although counsel were required to make submissions on the issue.

[80]              I accept the delay in charging led to stress on Mr Lloyd-Jones and the Crown has acknowledged it was “regrettable”. However, it is unlikely to have added to his costs.

[81]              A further factor raised is that Mr Lloyd-Jones was the only defendant not legally aided. Mr Paino indicated that he did not have detail of the legal aid grants of the other defendants, or whether any contributions or charges were required of them to the legal aid authority. However, he says it is apparent Mr Lloyd-Jones paid significantly more in funding his defence than would any of the legally aided defendants. Mr Paino submitted this was a factor to be taken into account in considering this application. However, I do not consider that this factor is a weighty consideration in this case.

[82]              Standing back and looking at all the factors in the totality, I do not consider that costs should be awarded in this case for the reasons set out above. In particular, I consider the charge laid and taking the matter to trial was based on sufficient evidence, and overall the delay to trial was not unduly exceptional for a case of this nature nor was it the fault of the prosecution. Mr Lloyd-Jones acted reasonably and cooperated. In my view, the Crown also acted reasonably in the circumstances.

[83]Accordingly, the application is dismissed.

Quantum

[84]              In light of my conclusion that costs should not be awarded it is not necessary to determine quantum, however I briefly address this issue below.

[85]              The amount of costs sought is not specified, however Mr Paino submits that the cost to Mr Lloyd-Jones from period of the arrest until the end of the trial was in the region of  $83,770.75 (excluding his initial DVD interview with the  police).    Mr Paino submits that this is a modest amount for a three-and-a-half-week High Court trial, along with pre-trial applications and various other court appearances. The hourly rate is less than the Crown Solicitor would charge but greater than what would have been paid if Mr Lloyd-Jones was on legal aid (which he was not eligible for).

[86]              The Crown takes no issue with  the reasonableness  of the fees  charged  to Mr Lloyd-Jones. However, it points out that they significantly exceed the costs scale set out under sch 1 of the Regulations. A maximum fee of $226 per day is specified, which for a 14-day trial would amount to $3,164. Therefore s 13(3) of the CCCA would need to be relied upon, in that the Court would need to be satisfied that there was “special difficulty, complexity, or importance” to the case.

[87]              It is noted that the costs scale under the Regulations has been criticised as being out of date.31 This trial took three-and-a-half weeks and involved four defendants as well as expert medical evidence. There were a number of management conferences and a pre-trial hearing  on the disclosure.   The trial went relatively smoothly, as    Mr Paino accepted. In the circumstances I do not consider that the trial can be said to involve “special difficulty, complexity, or importance”. Therefore, the trial is not in the category of cases contemplated by s 13(3) of the CCCA.

Result

[88]The application for costs is dismissed.

31     R v Bublitz [2018] NZHC 373 at [59].

Grice J

Solicitors:

Luke Cunningham & Clere, Wellington Paino & Robinson, Upper Hutt