S v The Queen - [2021] NZHC 674

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading S v The Queen

Details

AGLC: S v The Queen [2021] NZHC 674
Case: [2021] NZHC 674
Decision Date: 30 March 2021

CaseChat Overview and Summary

The applicant, charged with manslaughter, had his trial dismissed after the jury was unable to reach a verdict. Following the dismissal, the applicant sought to recover costs under the Costs in Criminal Cases Act 1967 and the Criminal Procedure Act 2011. The Crown filed an appeal against the costs orders, and the applicant subsequently sought payment of the costs. The Crown opposed the payment and sought an order suspending payment of the costs pending the final determination of the appeal. The court had to decide whether it had the inherent jurisdiction to stay the judgment and, if so, whether it should be exercised in this case.

The court first examined the statutory framework and concluded that the Criminal Procedure Act 2011 and the Costs in Criminal Cases Act 1967 did not provide any direction on what to do in the case of an award of costs made against the Crown pending an appeal. The court found no authority on whether it had the inherent jurisdiction to make the orders the Crown sought, but referred to civil cases to guide its decision. The court found that it 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. The court then considered the factors relevant to the exercise of its inherent jurisdiction, which included the apparent strength of the appeal, the effect on third parties, and the overall balance of convenience.

After considering the memoranda filed by both the applicant and the Crown, the court found that the applicant had provided a satisfactory assurance to the Crown and the Court that the costs awards, once paid to him, would be retained in his bank account and not used pending determination of the Crown's appeal. Therefore, the court dismissed 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.

Orders