S v The Queen
[2021] NZHC 674
•30 March 2021
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,
OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPLICANT AND CONNECTED PERSONS PURSUANT TO SS 200 & 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-2018-004-009850
[2021] NZHC 674
BETWEEN S
Applicant
AND
THE QUEEN
Respondent
On the Papers Counsel:
K Hogan for the Applicant
H D L Steele for the Respondent
Judgment:
30 March 2021
JUDGMENT OF GWYN J
(Application for stay of costs award pending appeal)
This judgment was delivered by me on 30 March 2021 at 3.30 pm.
Registrar/ Deputy Registrar Date:
S v R [2021] NZHC 674 [30 March 2021]
Background
[1] The applicant was charged with manslaughter. His trial began on 4 November 2019 and concluded on 29 November 2019, with the jury being discharged after almost three days in deliberation on the basis that they were unable to determine the charge.
[2] The Crown did not seek a retrial and invited a dismissal of the charge against the applicant. The charge was dismissed on 20 February 2020, following which the applicant sought to recover costs.
[3] On 18 June 2020, I made costs awards in favour of the applicant under the Costs in Criminal Cases Act 1967 (the CCCA) and the Criminal Procedure Act 2011 (the CPA).1 In July 2020, the Crown filed an appeal against both orders.
[4] In November 2020, the applicant took steps with the Registry of the Auckland High Court, to obtain payment of the costs orders. On 4 December 2020, the applicant’s counsel filed a memorandum noting that the Court of Appeal has yet to allocate a hearing date for the Crown’s appeal and that neither the High Court nor the Court of Appeal has stayed the costs judgment. Counsel sought a direction that Registry comply with the relevant statutory requirements in relation to the orders.
[5] On 22 December 2020, the Crown filed a memorandum opposing the making of that direction, and seeking:
(a)an order, made under this Court’s inherent jurisdiction, suspending payment pending the final determination of the appeal; or
(b)if this Court considers the costs award should be paid, that such a direction is given only on the condition of an “appropriate assurance of repayment” to ensure that any appeal decision in the Crown’s favour can be enforced.
1 S v R [2020] NZHC 1375.
[6] In my Minute of 26 January 2021, I set out an initial analysis of whether the Court has inherent jurisdiction to stay the judgment and, on the basis that it has, the factors relevant to the exercise of that jurisdiction. I directed that counsel file memoranda addressing the factors relevant to the exercise of the jurisdiction to stay the judgment. For completeness, I reproduce that analysis here.
Statutory framework
[7] The order under the CCCA was made under s 5, and s 7 provides that the costs are payable by the chief executive of the Ministry of Justice (the chief executive). The Costs in Criminal Cases Regulations 1987 (the Regulations) dictate how the Registry is to process an award. Regulation 7 requires the Registrar to send to the person liable for payment a notice showing the amount that the person is liable to pay. Regulation 8 provides that where costs are payable under the CCCA by the chief executive, the Registrar shall prepare and certify a voucher for the amount of the costs payable and shall send it with the notice under reg 7 to the chief executive.
[8] Section 39(a) of the Court of Appeal (Criminal) Rules 2001 (the Criminal Rules) provides that a trial Judge may give any directions they consider proper concerning the “suspension, pending appeal, of any order” made under s 4 of the CCCA. Section 4 relates to awards made against defendants, for the costs of the prosecutor. However, there is no reference to orders made in favour of defendants, under s 5.
[9] Both the CPA and the CCCA are silent in relation to what is to occur in relation to an award of costs made against the Crown pending an appeal.
The law
Does this Court have inherent jurisdiction to stay the judgment?
[10] There does not appear to be any authority on the specific issue of whether this Court has inherent jurisdiction to make the orders the Crown seeks. Counsel for the Crown helpfully referred to R v Connolly, where the Court of Appeal considered
whether interest could be awarded under s 5 of the CCCA.2 That decision appears to be the only case that contemplates the Crown withholding payment. There, the High Court held the defendants were entitled to costs, and required them to prepare costs claims in order to quantify the amount. They waited over two years to do so, while appeals progressed through the Court of Appeal and Supreme Court. Although not addressing whether the Crown had the power to withhold payment pending determination of an appeal, the Court of Appeal noted:
[18] … As we noted earlier, the respondents did not appear to take up the invitation of Fogarty J to crystallise their claims to costs. If they had done so it is possible that arrangements could have been made to pay them earlier. It seems that this did not happen because the Crown wished to appeal against the awards and was initially (but not ultimately) successful in its appeal. …
…
[21] … The Crown did, however, concede that if the amount of costs payable to the respondent had been actually quantified after the costs judgment, but not paid pending the outcome of the appeals, interest would run from the date of quantification because, once quantified, the costs awards would be a judgment debt due from the Crown and so caught by s 19(1).
…
[26] … And it is at least arguable that, if an award of costs is made under [the CCCA] in favour of a defendant, and payment is not made, a civil liability then exists from the Crown to the defendant. …
[11] There is authority relating to this Court’s inherent jurisdiction to stay a costs judgment in the civil context. While the Court of Appeal in Connolly confirmed that proceedings under the CCCA are criminal, rather than civil,3 given that finding was made in the context of determining the application of specific legislation relating to interest, I do not consider it precludes me from looking to the following cases for guidance on the Court’s inherent jurisdiction in the present case.
[12] In 2018, Gordon J considered whether she had inherent jurisdiction to stay a costs judgment she had made, in Sullivan v Wellsford Properties Ltd.4 Justice Gordon had delivered a substantive judgment in favour of the defendants, and subsequently made a costs award in favour of the defendants in a separate judgment. The plaintiffs
2 R v Connolly [2008] NZCA 548 at [4]-[6].
3 At [49].
4 Sullivan v Wellsford Properties Ltd [2018] NZHC 708.
appealed the substantive judgment, and then applied for an order staying execution of the costs judgment. As the costs judgment was not under appeal, an issue arose as to whether the application for stay was governed by r 12 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules) (which gave Gordon J the power to stay its execution pending appeal), or whether the Court could rely on its inherent jurisdiction. Justice Gordon held that the High Court has inherent jurisdiction to order a stay of its own judgment in certain circumstances,5 noting:
[15] I note the view of Smellie J in Pinson v Pinson that this Court has inherent jurisdiction to stay any judgment where justice demands it. Smellie J referred to the McGechan commentary that the Court “has jurisdiction to make any order necessary to enable it to act effectively even in respect of matters regulated by rules of Court so long as it does not contravene those rules”.
[16] There is a more recent discussion of this Court’s power to stay a decision of the District Court under its inherent jurisdiction in Shafik v Makary. There, Mander J said:
[18]While powers arising from the Court’s inherent jurisdiction are wider than those contained in the rules and are capable of filling gaps that may arise in respect of those rules, where an issue before the Court is already the subject of prescription, the Court will rarely choose to exercise its inherent powers. The jurisdiction should only be developed and exercised in harmony with relevant legislation.
[19]The starting point is that this Court will retain an inherent jurisdiction to stay proceedings, where the justice of the case so demands, save where that jurisdiction has been abrogated expressly, or by necessary implication. This fundamental position is exemplified by the Court’s jurisdiction to prevent abuses of its own process.
[13] Given the Criminal Rules only govern orders made under s 4 of the CCCA, I do not consider legislation prevents the exercise of inherent jurisdiction in this case. I consider this Court retains the inherent jurisdiction to order a stay of the costs judgment pending determination of the appeal, if it is in the interests of justice to do so.
When should a stay be granted, or security required?
[14] There appears not to be any authority on the applicable test when applying s 39(a) of the Criminal Rules (in relation to orders made under s 4 of the CCCA).
5 At [14]-[19].
Therefore, although this question arises in the criminal context, I again consider guidance from the civil context useful. In determining whether to exercise its power under r 12 of the Civil Rules to stay a judgment pending appeal, the Court of Appeal in Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust held:6
Rule 12 does not set out any criteria for the granting of a stay or interim relief, but the approach is well-established. As a starting point, a successful party is entitled to the fruits of its judgment. An appellant who seeks to stop this must make an application and show why the usual consequences of a judgment should not follow. The court will need to balance the competing rights of the party who has obtained judgment against the need to preserve the appellant’s position in the event of the appeal succeeding. The factors to be taken into account in the balancing exercise when a stay or interim order are sought include:
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the appellant as to the prosecution of the appeal;
(c)whether the successful party will be injuriously affected by the stay;
(d)the effect on third parties;
(e)the novelty and importance of questions involved;
(f)the public interest in the proceeding;
(g)the overall balance of convenience; and
(h)the apparent strength of the appeal.
[15]In ASB Bank Ltd v Lin the Court of Appeal also explained:7
[11] Not all these factors apply in every case. In this case, the defendants are seeking stay of enforcement of a money judgment pending appeal. There is old authority as to the approach which the court takes on such an application. It goes back to a judgment of Williams J in McLeod v The New Zealand Pine Co Ltd:
The right of plaintiff in the present case is an absolute right to have his money at once. The right of defendants is the right of appeal, and the right in some way or other to have it made certain by this Court that that appeal shall not be fruitless. The duty of this Court is, I think, to reconcile as far as possible the conflicting rights of the plaintiff and the defendants. The way to do that is to follow the English cases, and to say that an order staying proceedings shall be made on payment by the defendants to the plaintiff of the money in question, the plaintiff giving security for the repayment.
6 Brook Valley Community Group Inc v Brook Waimarama Sanctuary Trust [2017] NZCA 377 at
[10] (footnotes omitted).
7 ASB Bank Ltd v Lin [2014] NZHC 106 (footnotes omitted).
…
[14] In the case of a money judgment, the standard approach is this: if the party who has been successful at first instance gives appropriate security or assurance as to repayment if the appeal is allowed, there is usually little difficulty in principle in allowing them to have the fruits of their judgment. Even if the unsuccessful party is required to pay the judgment sum pending appeal, they still retain the right of appeal and, if successful, are assured of repayment.
[16] In Walker v Castlereagh Properties Ltd Associate Judge Osborne noted, obiter, that he might have granted a conditional stay of liquidation proceedings under r 12 of the Civil Rules, requiring the defendant to make the ordered payment, on the condition of the plaintiff executing an undertaking that in the event of a successful appeal he would reimburse the costs paid.8
[17] In Contributory Mortgage Nominees Ltd v Harris Road No 10 Ltd, Associate Judge Faire observed that in appeals against money judgments, the general approach is that an order staying execution will be granted upon payment by the defendant to the plaintiff of the money in question, with the plaintiff giving security for payment.9 However, that approach was not appropriate in that case. In the decision under appeal, Associate Judge Faire had ordered the defendant to pay to the plaintiff an amount representing a GST liability owed to Inland Revenue. The defendant applied for an order staying execution of the judgment. In an interim judgment, Associate Judge Faire indicated a stay would be granted on terms; the judgment would be stayed pending appeal, but the defendant was required to provide security for the debt owing to Inland Revenue.
Analysis
[18] Counsel for both the applicant and the respondent have now filed memoranda as directed.
[19] The applicant has confirmed that counsel’s 4 December 2020 memorandum was intended to address both of the costs awards – $30,000 against the Police under the CPA, and $145,000 against the Crown under the CCCA.
8 Walker v Castlereagh Properties Ltd [2015] NZHC 907 at [90].
9 Contributory Mortgage Nominees Ltd v Harris Road No 10 Ltd (2006) 22 NZTC 19,752 at [8]
[20] The Crown memorandum of 2 February 2021 addresses the factors relevant to the exercise of a jurisdiction. The last of those factors is the overall balance of convenience. Crown counsel acknowledges that, should an appropriate assurance of repayment be provided by the applicant, the balance of convenience does not favour a stay of the judgment.
[21] In reply, attached to counsel’s memorandum of 17 February 2021, the applicant has provided a written assurance to the Crown and the Court in the following terms:
I, [S], assure the Crown and Court that the costs awards, once paid to me, will be retained in my bank account and not used pending determination of the Crown’s appeal.
[22]The assurance is in a form that is satisfactory to the Court.
Result
[23] I dismiss the Crown’s application for an order suspending payment of the costs awards pending the final determination of the Crown’s appeal. There should now be no impediment to the payment of the costs ordered.
Gwyn J
Solicitors:
R S Reed, Barrister, Auckland K E Hogan, Barrister, Auckland Crown Solicitor, Auckland
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