R v Police HC Auckland CRI 2009-404-50

[2009] NZHC 784

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-000050

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         (On the Papers)

Appearances: P T H Heaslip for the Appellant

D C S Morris for the Respondent

Judgment:      9 July 2009

JUDGMENT OF KEANE J [Re Costs]

This judgment was delivered by Justice Keane on 9 July 2009 at 4.45 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:   Paul Heaslip Lawyer P O Box 4108 Shortland Street Auckland 1140 for the

Appellant

Cook Morris Quinn P O Box 1295 Shortland Street Auckland 1140 for the

Respondent

R V POLICE HC AK CRI 2009-404-000050  9 July 2009

[1]      On 20 February 2009, for reasons set out in a decision given in an earlier decision, dated 8 October 2008, R   was convicted of offensive behaviour and resisting arrest.  The Judge then declined to discharge him without conviction and, having entered the conviction, fined him $400 for behaving in an offensive manner and convicted him of the resisting offence but discharged him.

[2]      Mr R   appealed his conviction, contending that the Judge erred in law and fact in failing to take account of relevant circumstances, and in taking into account irrelevant circumstances.  A miscarriage of justice had resulted.  He did not say whether, in this, he was seeking to challenge the first decision leading to his conviction, or the second declining him a discharge without conviction, or both.

[3]      On 13 May 2009, a fixture was allocated in this Court for Tuesday, 2 June

2009, and Mr R  ’s counsel, Mr Heaslip, was immediately advised.   On Thursday, 28 May 2009, the Registrar asked Mr Heaslip for his submissions.  That same  day,  Mr  Heaslip  filed  a  notice  of  abandonment,  counsel  for  the  Police, Mr Morris, filed a memorandum asking to be heard on costs, and Mr Heaslip replied, questioning what costs might have been incurred.

[4]      On 4 June 2009, I invited submissions as to the jurisdiction given this Court on an abandoned appeal to award costs under s 9 of the Costs in Criminal Cases Act

1967.

Submissions

[5]      Mr Morris contends for an indemnity award, calculated  according to the Crown Solicitor’s Regulations, $198 per hour exclusive of GST, for four hours at the senior crown rate.  Assuming that Mr R  ’s appeal was confined to the Judge’s decision declining him a discharge without conviction, Mr Morris contends, that had to be futile.  Mr R   has previous related convictions.

[6]      Mr Heaslip contends that no award ought to be made, indeed that an award ought to be made against the Crown for pursuing costs.  The appeal was not against the entry of the conviction.   It was directed rather to the Judge’s earlier decision

containing his underlying conclusions of fact and law, a number of which were contestable.  He contends moreover that the time claimed is disproportionate when set against the tasks identified.

Section 9 award

[7]      The effect of s 9, as set out in its title, is that a party “giving notice of appeal and not prosecuting may be ordered to pay costs”; and it says this:

(1)In any case where notice of appeal is given under any provision of the Summary Proceedings Act 1957 or the Crimes Act 1961 but the appeal  is  dismissed  for  non-prosecution  or  a  certificate  is  given under section 107 of the Summary Proceedings Act 1957 that the appeal has not been prosecuted, the Court to which the appeal is made may, subject to any regulations made under this Act, allow the respondent such costs as it thinks fit.

(2)No costs incurred after notice has been given by the appellant abandoning the appeal shall be allowed.

[8]      In Blumhardt v Rodney District Council HC AK CRI-2007-404-157, a case indistinguishable from this, Winkelmann J held that where an appeal is abandoned before the hearing, it is deemed dismissed under s 129 of the Summary Proceedings Act 1957.  Any right to costs arises under s 9(1), not as was there contended under s 8.  Section 8(5) does not apply to allow costs to be fixed at a level beyond the scale applying.  If costs above scale are to be given, that must be under s 13(3) on the basis of the “special difficulty, complexity or importance of the case”.

[9]      I agree.  The result is, then, that unless the case is in the exceptional category, the award open under the scale on an abandonment of appeal is minuscule.

Conclusions

[10]     I am sympathetic to the Police application.  The appeal was only abandoned when the appellant’s submissions were due to be filed.   No submissions had been prepared.   Before then it had already been decided that the appeal was not to be pursued.   But, for whatever reason, the decision had not been taken definitively. That  it  was  taken  then  and  not  even  later  can  be  attributed  to  the  Registrar’s initiative.

[11]     By then, it could have been anticipated that counsel for the Police, whether from the Crown Solicitor’s office, or counsel instructed, had to have at least begun to prepare the submissions in response.  Costs could have been anticipated to have been already incurred.  That work might well have not needed even to have begun, had Mr R  ’s appeal been withdrawn earlier.

[12]     A  compensating  award  in  favour  of  the  Police,  in  excess  of  scale,  is warranted.  On any analysis, however, this case was neither especially difficult, nor complex, nor important.   The only costs to which the New  Zealand  Police  are entitled are costs in accord with the Schedule to the Costs in Criminal Cases Regulations.  There will be that award.

P J Keane J