Talbot v The Queen

[2005] NZCA 274

IN THE COURT OF APPEAL OF NEW ZEALAND

CA395/05

THE QUEEN

v

IAN TENNANT ATKINSON

Hearing:14 November 2005

Court:Hammond, William Young and Panckhurst JJ

Counsel:F P Hogan for Applicant

A M Powell for Crown

Judgment:16 November 2005 

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe award for costs of $3,500 plus GST is set aside, and an award of $11,900 is substituted therefor.

C        There will be no award of costs in this Court.

REASONS

(Given by Hammond J)

Introduction

[1]        The applicant, Mr Atkinson,  was awarded costs against the Crown under the Costs in Criminal Cases Act 1957 in a sum of $3,500 plus GST.

[2]        He now appeals to this Court under s 379CA of the Crimes Act 1961 on the basis that the award was “inadequate”.  That would normally be a very long bow indeed, in face of this Court’s consistent approach that it will rarely review the making of an award of costs, let alone the quantum of that award.  However this is a case in which it appears to us that we should intervene on appeal; the case appears to be one of a mathematical error in the lower Court.

Background

[3]        The appeal comes about this way.

[4]        Mr Atkinson had been involved in a serious motor accident.  He was charged with ten traffic related criminal offences in late 2002.  Four of the counts were alcohol related offences in respect of which Mr Atkinson was discharged under s 347 of the Crimes Act 1961.  The remaining six counts came to trial before a jury in the District Court in September of 2003.  At that time, two more counts were discharged under s 347 of the Crimes Act 1961.

[5]        In the result, Mr Atkinson was convicted on two counts of failing to ascertain injury, and failing to render assistance without reasonable excuse.  He was sentenced to nine months imprisonment.  Subsequently, he was granted home detention. 

[6]        Mr Atkinson appealed against his conviction, to this Court.  That appeal was successful, on the footing that the Police had failed to disclose certain information (relating to previous convictions), and the trial was rendered unfair on that account.  By that time, Mr Atkinson had served his sentence.

[7]        As a result of the appeal, the proceeding was referred back to the District Court for a re-trial.  The Crown offered no evidence.  It had concluded that it would not be in the interests of justice to prosecute this matter again.  On 14 October 2004 a s 347 application was granted by Judge Clapham.

[8]        Mr Atkinson thereafter applied for costs against the Crown.  His total claim, inclusive of GST, was $35,774.64.  In his memorandum in support of the application Mr Hogan said:

This has been an extraordinarily complex and time-consuming matter.  Four separate accounts have been forwarded to Mr Atkinson.  [Photocopies of the accounts were enclosed.]  The total cost including a professional engineering disbursement has come to $35,774.64.  Of that figure the sum of $11,275 remains outstanding.

[9]        Mr Hogan sought indemnity costs on behalf of his client.

The disposition of the costs application in the District Court

[10]      As it transpires, the costs application in the District Court was dealt with by Judge Clapham, who was not the trial Judge.  As a matter of formality, he had dealt with the s 347 discharge in October 2004.  The trial Judge had been Judge Hobbs, who was a visiting Judge in the Manukau District Court.  There is no formal requirement that a costs application be dealt with by the Judge who heard the trial, although plainly that is the better practice, if it can be followed in the particular circumstances.

[11]      Judge Clapham found that “the area of fault relates to the lack of disclosure by the Police [and the consequences] for a fair trial”, and that the applicant was within the statute in seeking costs.

[12]      That finding is not challenged by the Crown on appeal.  Mr Powell responsibly conceded, “there is no cross-appeal and the Crown accepts the Judge’s decision to exceed the scale”.

Discussion

[13]      Mr Hogan contends the Judge made a mistake.  He was dealing with the application “on the papers”, and failed to appreciate that the claim was for a full indemnity.  Instead, what the Judge did was to allow (approximately) one-third of $11,500.  Mr Hogan said if a “one-third” formula was being adopted, it should have yielded one-third of $35,774, or, say, $11,900.

[14]      Mr Powell responsibly acknowledged “the way the judgment is worded supports the applicant’s suggestion that the Judge may have misunderstood the amount that was being sought”.  The Crown nevertheless contends that it is “by no means certain” that the Judge was in error, or what he would have done had he appreciated the “true” claim.

[15]      The Crown does however accept that some intervention is required.  But it takes the view that the case would be better served by it being returned to Judge Clapham for the Judge to either confirm the award or alter the award as that Court considers necessary.  That is an available course, and it has its own attractions.  However, it will put both Mr Atkinson and the Crown to further expense in what already has been a protracted matter.  Section 379CA(2) confers broad powers on this Court on appeal, and we think it best to deal with the matter in this Court.

[16]      Proceeding on that footing, it does appear that the Judge accepted that there should be an award of costs of approximately one-third of the costs actually and reasonably incurred by Mr Atkinson.  Certainly that is an available, and fair, reading of the District Court judgment.

[17]      No leave appears to be required for an appeal of this character (see R v Buxton 10 December 2003 CA317/03). 

[18]      In the result, we allow the appeal.  We set aside the award of $3,500 plus GST.  We substitute an award of $11,900.

[19]      There will be no award of costs in this Court.

Solicitors:
Crown Law Office, Wellington