R v Meyrick

[2008] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

CA513/04
[2008] NZCA 45

THE QUEEN

v

MICHAEL BRIAN MEYRICK

Court:William Young  P, Chambers and O'Regan JJ

Counsel:Applicant in Person

N P Chisnall for Crown

Judgment (On the Papers):     5 March 2008 at 11am

JUDGMENT OF THE COURT

THE APPLICATION FOR COSTS IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]       Mr Michael Meyrick appealed successfully against conviction for attempting to pervert the course of justice, contrary to s 117(e) of the Crimes Act 1961: see R v Meyrick CA513/04 14 June 2005.  He now seeks costs.

[2]       Mr Meyrick appeared for himself in support of his appeal.  At that time he was on the roll of barristers and solicitors but did not hold a current practising certificate.  For reasons we will shortly give, the consequence is that this Court does not have jurisdiction to award him costs.  Before we explain why, we should set out briefly the background to the application. 

Background

[3]       The charge of attempting to pervert the course of justice arose out of events which occurred in September 2003.  At that time, the police were investigating Mr Meyrick for suspected possession of material in contravention of s 131(1) of the Films, Videos, and Publications Classification Act 1993.  The material in question was on the hard drive of a computer which, to the knowledge of Mr Meyrick, was in the possession of the police.  But the computer tower in which the hard drive had previously been located was in the possession of Mr Meyrick’s daughter.

[4]       At a time when the police were about to execute a search warrant authorising them to uplift the computer tower, Mr Meyrick retrieved it from his daughter.  The case for the Crown was that he did this with a view to interfering with the police investigation.  Mr Meyrick was aware of the police interest in the computer tower but there was no direct evidence indicating that he was aware of the search warrant.

[5]       Mr Meyrick was tried in October 2004 and found guilty.

[6]       The judgment of this Court allowing his appeal focused on the reasons given by the trial Judge for finding Mr Meyrick guilty.  There was no finding that Mr Meyrick was aware that the police had a search warrant addressed to the computer tower.  Further, the Crown had not attempted to demonstrate that the computer tower did have (or could have had) any evidential significance.  As well, Mr Meyrick had not been challenged on his assertion that he believed the computer tower did not have evidential significance and the Judge made no explicit finding against him on this point.

[7]       This Court’s judgment allowing the conviction appeal concluded in this way:

[54]     We direct a re-trial.  We suggest, however, that those responsible for this prosecution give serious consideration to whether the underlying criminality associated with the conduct of the appellant (assuming there was criminality) is sufficient to warrant the expense and anxiety of a re-trial.  We note that English practice is that such cases are only prosecuted where there are serious aggravating features, see Archbold 2005 at 28-02.  We do not see any such features in this case.

Unsurprisingly, there was no retrial and Mr Meyrick was thus discharged.

[8]       For the sake of completeness, we note that Mr Meyrick was prosecuted on charges under the Films, Videos, and Publications Classification Act, found guilty on some of them and fined.  However, a subsequent appeal was successful and the convictions were quashed.

[9]       Mr Meyrick was practising as a barrister and solicitor at the time of the alleged offending in September 2003 and he continued to do so up until his trial in October 2004 on the charge of attempting to defeat the course of justice.  Following his conviction, the local district law society applied to have him struck off but these proceedings were put on hold pending his appeal to this Court.  In the result, however, he did not renew his practising certificate when it expired on 31 January 2005.  After the criminal proceedings against him were resolved, the disciplinary proceedings were abandoned and Mr Meyrick resumed practice as a lawyer.

Why this Court does not have jurisdiction to award costs

The general rule as to self-represented litigants

[10]     The usual rule is that a successful self-represented litigant is entitled to recover disbursements but not costs.  There is an exception to this rule in the case of a litigant who is a practising lawyer.  Such a litigant can be awarded both costs and disbursements.  Both the rule and the exception are discussed in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (CA), Lysnar v National Bank of New Zealand Ltd (No 2) [1935] NZLR 557 (CA) and Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA).

[11]     Of these cases, Lysnar is the most germane to the present situation. Mr Lysnar, a retired solicitor, had appeared for himself unsuccessfully in both the Supreme Court and Court of Appeal in support of his claim against the National Bank.  His subsequent appeal to the Privy Council succeeded and he was awarded “costs in the Courts below”.  He then sought an order from the Court of Appeal quantifying his entitlement to costs in relation to his appeal to that Court.  An important feature of the case is that although Mr Lysnar had appeared for himself at the hearings of his claim, a practising solicitor was, throughout, on the record as his solicitor.  Save for a conceded allowance for drawing and settling the case, the Court rejected his claim for costs.  It did not avail him that at the time when he had represented himself he was on the roll of barristers and solicitors.

[12]     In his submissions, Mr Meyrick contended that Lysnar is in his favour.  We disagree.  The primary claim made by Mr Lysnar was rejected.  Why the allowance for drawing and settling the case (a total of £7 7s) was conceded is not apparent from the report, but it may have been connected with a distinction drawn by the Court between costs associated with solicitor’s work (which may have encompassed the settling and drawing of the case) and the work of counsel.  As we understand the distinction, Mr Lysnar was entitled to costs associated with solicitor’s work as he was, at all times, represented by a solicitor but this concession did not extend to the work which he himself carried out (namely representing himself at the hearing).

The relevant statutory provisions

[13] Section 2 of the Costs in Criminal Cases Act 1967 (“the Act”) defines “costs” in this way:

2        Interpretation

In this Act, unless the context otherwise requires,—

costs means any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal:

[14]     Section 8(1) provides:

8        Costs on appeals

(1)       Where any appeal is made pursuant to any provision of the Summary Proceedings Act 1957 or the Crimes Act 1961 the Court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

[15]     Regulation 3 of the Costs in Criminal Cases Regulations 1987 (“the Regulations”) is in these terms:

3        Heads of costs and maximum scales of costs

Subject to section 13(3) of the Act, the heads of costs and the maximum scales of costs that may be ordered to be paid under the Act shall be those set out in the Schedule to these regulations.

And the Schedule relevantly provides:

Part II—Fees Payable To Barristers And Solicitors In Respect Of Proceedings Under The Crimes Act 1961

C.        Appeals

(a)       In respect of an appeal (except an appeal against sentence only) or an application for leave to appeal or a case stated or question of law reserved or an ancillary application or matter—For each half day or part half day occupied in Court, a maximum of $226.00

[16] The most obvious interpretation of the relevant provisions of the Act and Regulations is that they contemplate awards of costs to provide partial reimbursement for expenses incurred (see the definition of “costs”) by way of fees paid to barristers and/or solicitors (see the relevant heading in the schedule). This interpretation would exclude an award of costs for any self-represented appellant, even one who is a practising lawyer.

[17]     We recognise that the jurisdiction to award costs in civil cases primarily rests on the premise that an award of costs is compensation for expenditure actually incurred; cf the discussion in Chorley.  The exception recognised by Chorley in relation to awards of costs to practising lawyers thus occurred in a context which is not entirely dissimilar to the statutory context provided by the Act. For that reason we do not dismiss the possibility that the Chorley approach might be taken in criminal cases, despite the inauspicious language of the Act and Regulations. What we do not accept, however, is that the relevant statutory language permits an award of costs in relation to the work of someone who is not a practising lawyer.

Conclusion as to costs

[18]     On the basis of the general principles which are applied in the case of self-represented litigants, and in light of the particular statutory provisions which apply to criminal cases, we conclude that we have no jurisdiction to make an award of costs.

Disposition

[19]     The application is dismissed.

Solicitors:
Crown Law Office, Wellington