Tepania v Police - [2024] NZHC 2397

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-362

[2024] NZHC 2397

BETWEEN
RICKY DANIEL TEPANIA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 8 April 2024

Appearances:

A A Rasheed for appellant S Cox for respondent

Judgment:

26 August 2024

JUDGMENT OF JOHNSTONE J

(appeal against refusal to grant costs)

This judgment was delivered by me on 26 August 2024 at 3pm

Solicitors:
Kayes Fletcher Walker, Auckland

TEPANIA v POLICE [2024] NZHC 2397 [26 August 2024]

[1] Absent court intervention, defendants in criminal cases are not entitled to the contact details of persons who have provided information to the prosecutor. Better understanding of this rule,1 may avoid frustration, delay and wasted costs.

[2] Following a judge-alone trial, Judge T V Clark found Ricky Tepania not guilty of a charge of male assaults female.2 Mr Tepania then applied for orders, under the Costs in Criminal Cases Act 1967 (CCCA) and under the Criminal Procedure Act 2011 (CPA), that New Zealand Police as the prosecutor should pay him awards of costs.
Judge Clark dismissed Mr Tepania’s costs applications.3

[3]Mr Tepania now appeals Judge Clark’s decisions refusing costs. He says that:

(a)police non-disclosure of a person’s contact details amounted to a procedural failure justifying an award of costs under the CPA; and

(b)Mr Tepania’s acquittal being due largely to the police reluctantly calling the person as their witness at a much delayed trial, the Judge should have exercised her discretion to award costs in favour of Mr Tepania under the CCCA.

[4] The context in which these arguments are made requires explanation. I commence in chronological order.

The complaint and the initial investigation

[5] At 9 pm on 22 December 2017, Shantarn Andreassend was admitted to North Shore Hospital, complaining of having been assaulted by her partner following her return home from a work Christmas party that evening.

[6] In the early hours of 23 December 2017, Constable Myburgh interviewed Ms Andreassend at the hospital. Ms Andreassend provided a more detailed account. She described Mr Tepania assaulting her inside the home they shared in

1      For a more precise reference, see Criminal Disclosure Act 2008, ss 6(1) (definition of “informant”), 13 and 17; and discussion below.
2      New Zealand Police v Tepania [2022] NZDC 1381.
3      New Zealand Police v Tepania [2023] NZDC 7013.

Mt Wellington, at around 8 pm, following an argument. Ms Andreassend described six to seven punches aimed at her face, some of which connected with her left elbow, and herself kicking back. She described yelling and screaming from both parties, and Mr Tepania chasing her up the driveway as she tried to leave. She described grabbing the wing mirror of his car, punching and cracking it. She described Mr Tepania threatening her, then returning inside saying he was going to call the police. She described driving away to the hospital.

[7] A police photographer took photographs of Ms Andreassend’s physical condition, which supported her account.

[8] At around 9.20…

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: [2024] NZHC 2397
Decision Date: 26 August 2024

CaseChat Overview and Summary

Ricky Daniel Tepania appeals against the refusal of the High Court to grant him costs under the Costs in Criminal Cases Act 1967 (CCCA) and the Criminal Procedure Act 2011 (CPA). The court heard the appeal on 8 April 2024 and delivered judgment on 26 August 2024. Tepania was acquitted of a charge of male assaults female following a judge-alone trial. He applied for costs under the CCCA and the CPA, which were refused by Judge Clark. Tepania argues that the police non-disclosure of a person’s contact details amounted to a procedural failure justifying an award of costs under the CPA, and that his acquittal being due largely to the police reluctantly calling the person as their witness at a much delayed trial, the Judge should have exercised her discretion to award costs in his favour under the CCCA.

The court found that the police were not responsible for a significant procedural failure for which there was no excuse, as they could not disclose Ms Ott’s contact details without the leave of the court. The court also found that Judge Clark was not wrong in exercising her discretion to refuse to award CCCA costs, as the most unsatisfactory aspect of the proceeding against Tepania was the delay in hearing the trial, which was not primarily due to the police. The appeal is dismissed with no order as to costs.

Orders