Sanders v Police - [2017] NZHC 1838

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI-2016-476-000007 [2017] NZHC 1838

BETWEEN
CHARLES SCORE SANDERS

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:
13 July 2017 (In Christchurch) - Mr McRae appearing by AVL

from Timaru

Appearances:

S J Shamy for Appellant
A R McRae for Respondent

Judgment:

3 August 2017

JUDGMENT OF GENDALL J

Introduction

[1] The appellant applies for costs following his successful appeal to this Court against conviction and sentence in the District Court on charges involving violence against his former wife. The prosecution consented to the appeal being allowed and the conviction and sentence were quashed on 10 February 2017. A retrial was ordered in a minute of this Court also dated 10 February 2017, but the Police, as I understand it, have since agreed that this matter is not now to be the subject of a retrial.

[2] The appellant represented himself at trial in the District Court but was represented by counsel in this Court at his successful appeal. The present application therefore seeks costs only in relation to the appeal. The respondent opposes the
application for costs.

SANDERS v NEW ZEALAND POLICE [2017] NZHC 1838 [3 August 2017]

Facts

[3] The procedural history of this matter is somewhat convoluted. The appellant faced a number of charges loosely described under the general umbrella of “domestic violence”. The appellant first appeared in November 2014. Throughout he had been represented by a number of lawyers, but eventually sought to be self-represented at his trial.

[4] As to his original conviction, in July 2016, the appellant was convicted1 and sentenced2 in the District Court at Timaru on the various charges which as I note, involved violence against his former wife.3 The conviction essentially, it seems, turned largely on her evidence. These decisions were appealed finally on the basis that the appellant was not able to properly test the complainant’s evidence.

[5] On 20 January 2017, counsel then acting for the appellant on the appeal requested all material relevant to what was said to be a complaint made by the complainant in December 2012 to a “Detective Johnson”. This was relating to alleged events involving various sexual allegations made by the complainant against the appellant and another male. These allegations were not pursued. Counsel repeated his request for the disclosure of this material on 25 January 2017 and 30
January 2017. Counsel for the respondent replied each time that the request had been passed on to Police, who it seems were having difficulty locating the file. The matter was called in this Court before Davidson J on 3 February 2017. Counsel for the respondent informed the court that the file had only been located and received that morning as it had been held, it seems, in Police records in Wellington. The matter was adjourned to be heard on 10 February 2017.

[6] In the interim, counsel for the respondent had a brief opportunity to review the file and concluded that it was potentially relevant in terms of…

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.

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Details

Case: [2017] NZHC 1838
Decision Date: 3 August 2017

CaseChat Overview and Summary

Sanders v Police is a case concerning an appeal for costs following the successful appeal against conviction and sentence in the District Court on charges involving violence against his former wife. The appellant, Charles Score Sanders, appealed against his conviction and sentence in the District Court, which were quashed on 10 February 2017. A retrial was ordered, but the Police later agreed that the matter would not be the subject of a retrial. Sanders sought costs only in relation to the appeal. The primary legal issue in this case was whether the appellant should be awarded costs for his successful appeal, in light of the respondent's failure to disclose relevant material to the appellant.

The Court considered the provisions of the Costs in Criminal Cases Act 1967 and previous cases such as R v Rust, R v Smith, and R v Connolly. The Court concluded that while the failure to disclose relevant material by the Police was an error, it was not done in bad faith. However, the failure to disclose the material contributed to the decision preventing a retrial from taking place, and the late disclosure of this evidence was a factor that suggested an award of costs was appropriate. The Court found that the case was of "special difficulty" within the meaning of s 13(3) of the Act, given the respondent's negligence in failing to disclose the material in question.

The Court ordered an amount for costs above the scale rate set out by the Regulations. This amount was to be 25% of the comparable scale costs payable to counsel for the Crown for the reasonable work undertaken on the appeal by counsel for the appellant. The Court directed counsel for the appellant to submit a schedule setting out the attendances claimed on the appeal, and both counsel to file a memorandum setting out their respective contentions on the appropriate amount of the award. The quantum figure would be fixed by the Court on the papers.

Orders