R v Simon John Buxton

[2003] NZCA 288

IN THE COURT OF APPEAL OF NEW ZEALAND

CA317/03

THE QUEEN

v

SIMON JOHN BUXTON

Hearing:8 December 2003

Coram:Tipping J
McGrath J
Anderson J

Appearances:  A R Laurenson for Appellant

L M B Lamprati SC for Crown

Judgment:10 December 2003 

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] The appellant, Mr Buxton, was found not guilty after trial before a Judge and jury in the District Court on three counts of indecent assault and one count of inducing an indecent act. Pursuant to s5 of the Costs in Criminal Cases Act 1967 he applied for an order for costs. His application was declined and he now brings this appeal pursuant to s379CA of the Crimes Act 1961, which is in the following terms:

379CA Appeal against order in respect of costs

(1) Where before, during, or after any trial the Court makes an order for the payment of costs or declines to make an order under the Costs in Criminal Cases Act 1967, any person affected by that decision may appeal against it to the Court of Appeal or, with the leave of the Supreme Court, to the Supreme Court.

(2)       The Court of Appeal or the Supreme Court may—

(a)      Confirm the decision; or

(b)      Vary the decision; or

(c)      Set aside the decision; or

(d)      Make any other order it considers appropriate.

(3)       Subject to subsection (4), where a person seeks leave to appeal to the Court of Appeal under this section, that person's application must be filed as directed by the rules of Court within 10 days after the decision has been made, irrespective of whether the formalities associated with that decision have been completed or whether reasons for it have been given.

(4)       The Court of Appeal may extend the period specified in subsection (3) within which notice of application for leave to appeal to it may be filed.

[2] Although the point has no materiality for present purposes, we draw attention to the inconsistency between ss (1) and (3). Subsection (1) implies that an appeal can be brought as of right, whereas ss(3) speaks of the dissatisfied person seeking leave to appeal. In his decision the learned District Court Judge carefully traversed the various matters which the Court is required to consider under s5 of the Costs in Criminal Cases Act, which is in the following terms:

5         Costs of successful defendant

(1)       Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under section 167 of the Summary Proceedings Act 1957 the Court may, subject to any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 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 information was dismissed on a technical point:

(f)       Whether the information 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.

(3)       There shall be no presumption for or against the granting of costs in any case.

(4)       No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or discharged or that any information charging him with an offence has been dismissed or withdrawn.

(5)       No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[3]        Mr Laurenson recognised the appeal was from a discretionary order and therefore the appellant needed to point to some ground upon which this Court could properly interfere with the Judge’s exercise of his discretion.  Two grounds were advanced:  first, that the learned Judge had applied the wrong legal test, and second, that the learned Judge had made what Mr Laurenson described as a mistake of fact in relation to the question whether there was sufficient evidence to charge the appellant.  We took this submission to be that the learned Judge was plainly wrong in that respect. 

[4]        Having carefully considered Mr Laurenson’s submissions on the first point and read the relevant passage in the judgment under appeal, we find ourselves unpersuaded that the learned Judge adopted an erroneous legal approach to the issues before him. 

[5] The second ground, which was the one put at the forefront of Mr Laurenson’s argument, focused on a combination of paragraphs (b) and (d) of s5(1). It is unnecessary for us to go into the details of the point. Mr Laurenson’s argument came down ultimately to the proposition that at the time the police decided to charge Mr Buxton, there was insufficient evidence to do so.  It is clear, however, that by the time Mr Buxton was committed for trial, there was sufficient evidence to support that course.  Indeed, prior to trial, an application for a discharge under s347 of the Crimes Act was dismissed. 

[6]        Counsel’s argument was that if the police had not charged Mr Buxton at the time they did, they may not or would not have made the further inquiries and taken the further steps on the basis of which the original charge was dropped and four further charges were substituted before the matter went to depositions.  Against that, however, by far the greater part of the costs incurred by Mr Buxton must have been incurred at and following depositions, by which time there can be no doubt, as the Judge found, that enough evidence existed to put Mr Buxton on trial.

[7]        We do not consider that the Judge was plainly wrong in failing wholly to embrace Mr Laurenson’s argument.  He did indeed indicate some concern at the way in which the matter developed prior to the laying of the charges upon which Mr Buxton ultimately went to trial.  The learned Judge did not overlook that aspect of the matter.  The complaint reduces to the proposition that the Judge did not place as much weight on the point as Mr Buxton would have liked. 

[8]        The Judge’s decision was a full and careful one, in which he addressed the relevant factual matters against a correct appreciation of the law.  He was entitled to reach the conclusion he did on the material before him.  The point at issue does not, in our view, have much logical merit anyway.

[9]        At the end of Mr Laurenson’s argument we did not find it necessary to call on Mr Lamprati for the Crown.  Despite counsel’s best efforts we were of the view, for the reasons traversed, that no ground had been shown to justify this Court’s intervention.  For these reasons the appeal is dismissed but without costs.

Solicitors:
Govett Quilliam, New Plymouth for Appellant
Crown Law Office, Wellington