Tepania v Police
[2024] NZHC 2397
•26 August 2024
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 am on 23 December 2017, Constable James Curran and Constable Dean Lovell-Shippey went to the Mt Wellington home. Mr Tepania was at home. He told the officers that it was he who had been assaulted during the incident the previous evening. Constable Curran arrested Mr Tepania on suspicion of the offence of male assaults female. When advised of his rights, and asked what had happened, Mr Tepania said he would talk at the police station. Later that morning, Mr Tepania gave a video-recorded interview, denying an assault on his part, and alleging Ms Andreassend had driven at him with her car. He was then charged.
[9] Also during the morning of 23 December 2017, Constable Lovell-Shippey took photographs inside the house. And he spoke with a neighbour, Logo Ott, who had noticed an incident between a female and a male outside the home the previous evening. Constable Lovell-Shippey made a note of his discussion with Ms Ott in his notebook. Ms Ott told Constable Lovell-Shippey that she noticed the female outside yelling and shouting at the male. She saw the female slamming the couple’s gate and then revving her car’s engine at the top of the driveway in an attempt to try to run the male over. Constable Lovell-Shippey’s initial formal statement referred to both his taking of photographs and his discussion with Ms Ott.
The first phase of prosecution
[10] Having been charged, Mr Tepania entered a not guilty plea and elected trial by jury. Later, Mr Tepania’s election was vacated, and his judge-alone trial set down for 4 December 2018.
[11] On 23 November 2018, relying on s 130 of the Evidence Act 2006, the police filed and served a notice of their intention to offer the following documents without calling a witness:
(a)a formal statement of the police photographer who took photographs of Ms Andreassend;
(b)a recent formal statement of Constable Lovell-Shippey, dated 21 November 2018, describing only his attendance at the Mt Wellington home and his taking of photographs; and
(c)a photobook containing the above photographs.
[12] On 4 December 2018, before embarking on the substance of the judge-alone trial set for hearing that day, Judge Tuohy addressed the efficacy of the police s 130 notice. The Court document recording the specific outcome cannot be located. However, it appears that through his counsel, Mr Rasheed, Mr Tepania objected to the production of Constable Lovell-Shippey’s statement, seeking that the police should call Mr Lovell-Shippey as a witness and thus make him available for cross-examination. The cross-examination intended was as to what Mr Lovell- Shippey was told by Ms Ott. Judge Tuohy found the police notice ineffective, in the sense that it did not render Mr Lovell-Shippey’s statement admissible.
[13] It further appears that Mr Tepania’s objection to the police notice led to discussion about the admissibility, or at least evidential value, of Mr Lovell-Shippey’s evidence about what Ms Ott told him. The police had not taken a formal statement from Ms Ott. And they had not signalled that they intended to call her as a witness. Without Ms Ott as a witness, what she told Mr Lovell-Shippey would ordinarily be hearsay and inadmissible.
[14] In light of the above, Mr Tepania sought an adjournment. The trial was adjourned, rather than embarked upon substantively, to 13 March 2019. Mr Tepania started trying to locate Ms Ott, who had moved away from Mt Wellington. He instructed a process server to that end. But he did not have her contact details.
[15] By 13 March 2019, the next scheduled trial date, Mr Tepania had not found Ms Ott. For that reason, and because priority was given to competing fixtures, the trial did not proceed. A new trial was scheduled for 9 May 2019.
[16] By 9 May 2019, Mr Lovell-Shippey had left police employment, and the police had advised that they no longer intended to call him as a witness. However, Mr Tepania was still seeking to locate Ms Ott, and he wished to have Mr Lovell-Shippey made available as a witness. If Ms Ott were to be called as a witness, and found no longer to remember what happened on 22 December 2017, Mr Lovell-Shippey might be required to confirm what she told him the next day. Further callover hearings were scheduled, and then a trial set for 16 January 2020.
[17] Mr Rasheed was not available on 16 January 2020. Further callover hearings saw the trial re-scheduled for 2 July 2020.
[18] The trial could not be reached on 2 July 2020. In Mr Rasheed’s absence at its scheduled 9 am commencement, Judge Clark elected to give priority to another matter involving a young complainant. However, the proceeding was the subject of a further mention, commencing at around 5.25 pm on 2 July 2020.
[19] During this mention, there was extensive discussion of the proceeding’s history to date, and Mr Rasheed handed up a memorandum seeking Mr Tepania’s discharge. It emerged during the discussion that the police had Ms Ott’s contact details. Judge Clark questioned the prosecuting sergeant about whether there was a reason under the Criminal Disclosure Act 2008 why Ms Ott’s contact details had not been disclosed. The sergeant was unable to assist. Mr Tepania’s discharge application was scheduled for hearing on 19 October 2020.
Mr Tepania’s discharge application
[20] On 19 October 2020, Judge Clark heard Mr Tepania’s application for discharge, brought on the basis of:
(a)alleged abuse of process by the police in failing to provide disclosure of Ms Ott’s contact details, and de-listing Mr Lovell-Shippey as a witness;
(b)post-charge delay; and
(c)insufficiency of evidence.
[21] It appears that in response to the alleged abuse relating to Ms Ott’s contact details, the police relied on s 17 of the Criminal Disclosure Act. In broad terms, s 17 provides that details that may identify the residence of a witness (such as their home or email address or phone number) may only be disclosed to defendants with leave of the court.
[22] Judge Clark did not issue judgment that day, instead recommending, amongst other things, that the police take a formal statement from Ms Ott, and re-list Mr Lovell-Shippey as a prosecution witness.
[23] Constable Curran took a formal statement from Ms Ott on 31 October 2020. In her statement, Ms Ott described observing an incident occurring outside her house at around 8 pm on 22 December 2017, involving a male and a female, largely in accordance with the account she had given the next day to then Constable Lovell-Shippey.
[24] Having received an update on steps taken in response to her recommendations, Judge Clark advised at a mention on 10 November 2020 that Mr Tepania’s discharge application was declined, adding that, if Mr Tepania were eventually acquitted, he
would have the opportunity to seek costs. The Judge issued a reasons judgment on 30 November 2020, finding:4
(a)There had been no abuse of process. In this regard, the Judge referred to s 17 of the Criminal Disclosure Act, finding that provision specifically to prohibit the police from providing Ms Ott’s contact details.
(b)The delay to trial, although undesirable, had not been undue or unjustifiable.
(c)There was ample evidence to support the charge.
Mr Tepania’s appeal and adjournment application
[25] His discharge application having been declined, Mr Tepania’s trial was next scheduled for 27 January 2021. However, Mr Tepania applied successfully to adjourn the trial fixture, having filed an appeal against the refusal of the discharge.
[26] Mr Tepania’s appeal was abandoned by 7 April 2021. Further delay, due to the COVID-19 pandemic, saw the trial re-scheduled for 19 January 2022.
Mr Tepania’s trial and acquittal
[27] Mr Tepania’s trial commenced on 19 January 2022. It was part-heard. The hearing of the evidence was completed on 21 January 2022. Judge Clark delivered her oral judgment, finding Mr Tepania not guilty, on 27 January 2022.5
[28]As canvassed in Judge Clark’s judgment:
(a)Ms Andreassend, Ms Ott, Mr Lovell-Shippey and Constable Curran were called as prosecution witnesses. Mr Tepania gave evidence in his own defence.
4 New Zealand Police v Tepania [2020] NZDC 23266 at [14]–[17] and [21].
5 New Zealand Police v Tepania, above n 2.
(b)The Judge found the early part of Ms Andreassend’s evidence to be compelling, and she observed that various inconsistencies between Ms Andreassend’s original statement, her evidence and her medical records (to the extent Mr Rasheed was permitted to put these to her) did not cause a great deal of concern.
(c)However, the evidence of Ms Ott, and of Mr Tepania, provided a different perspective as to Ms Andreassend’s conduct outside the home immediately following the assault that the latter had described.
(d)Mr Tepania having given evidence, the Judge requested a transcript of his DVD interview, there being “no issue” with its admissibility. This confirmed Mr Tepania’s evidence that, before he was charged, he told the police that Ms Andreassend had tried to run him over, and showed them his injury-free hands and knuckles.
(e)The Judge ultimately accepted that there might have been some physical contact between the couple in their bedroom, but could not “say with any confidence that that was in accordance with [Ms Andreassend’s] evidence versus [Mr Tepania’s] evidence”.6
[29]Having discharged Mr Tepania, Judge Clark concluded as follows:7
I now understand Mr Rasheed why you were so keen to ensure that these two additional witnesses were part and parcel of the prosecution case. It certainly made a difference to my decision making.
Judge Clark’s decisions to decline to award costs
[30]Mr Tepania sought awards:
(a)under s 5 of the CCCA of $25,600, reflecting a $600 retainer paid to his counsel, the $10,000 contribution he is required to make to costs funded
6 At [147].
7 At [153].
by Legal Aid Services and $15,000 claimed in respect of emotional harm and distress; and
(b)under s 364 of the CPA of $10,000, claimed in respect of procedural failure by the police.
[31] Judge Clark heard Mr Tepania’s applications on 23 March 2023, advised the parties at a mention on 19 April 2023 that they were declined, and issued a reasons judgment on 13 June 2023.8
[32]I return to Judge Clark’s reasons below.
Jurisdiction and applicable thresholds on appeal
[33] Mr Tepania’s appeals, against the refusal of CCCA costs, and against the refusal of CPA costs, are both brought under sub-pt 6 of the CPA.9 I am required to determine both appeals against the refusal of costs, by confirming, varying, or setting aside, Judge Clark’s decisions, or by making any other order I consider appropriate.10 However, the required approach to each appeal is different.
[34] An appeal against the refusal of costs sought under s 364 of the CPA is an appeal against an evaluative decision.11 On that basis, Mr Tepania’s appeal as to CPA costs proceeds by way of rehearing. I must make my own assessment of the merits and allow the appeal if my assessment differs to that of the lower Court.12
[35] On the other hand, a decision whether to award costs under s 5 of the CCCA involves the exercise of judicial discretion.13 Therefore, Mr Tepania must demonstrate that Judge Clark’s decision refusing to award costs under the CCCA involved an error
8 New Zealand Police v Tepania, above n 3.
9 Sections 270–272.
10 Section 274.
11 Bublitz v R [2019] NZCA 379 at [25]; and R v Lyttle [2022] NZCA 52, [2022] NZAR 117 at [80].
I note, however, that determining the quantum of costs awarded under s 364 of the Criminal Procedure Act involves a discretionary decision: Bublitz at [24].
12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
13 R v Lyttle, above n 12, at [174]. See also, Bublitz v R, above n 12, at [51], where counsel agreed the point and the Court of Appeal proceeded on this basis; and Harriman v Police [2015] NZCA 285 at [14].
of law or principle, took account of irrelevant considerations, failed to take account of a relevant consideration, or was plainly wrong.14
The appeal on CPA costs
[36]I address Mr Tepania’s appeal in respect of CPA costs first.
Judge Clark’s reasons for declining CPA costs
[37] When considering Mr Tepania’s claim under the CPA, the Judge cited s 364 of that Act in full. Under s 364(2):
A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
[38] The Judge described the procedural failure alleged by Mr Tepania as the failure by police “without reasonable grounds, to facilitate the availability of Ms Ott” as a witness.15
[39] In this regard, the Judge outlined the procedural history described above, adding that:16
In the end, and in the interests of fairness to the defendant, police agreed to call both Ms Ott and Mr Lovell-Shippey as prosecution witnesses.
[90] It is important for me at this juncture to mention prosecutorial discretion. The police were under no obligation to call Ms Ott or Mr Lovell-Shippey. If they did not call them then the defence would have had to call them. If that was the position, the defence would not have had the opportunity to cross- examine them.
[40] On this basis, the Judge confirmed her previous opinion that there had not been an abuse of process and stated that she was not satisfied there had been “a procedural failure, let alone one which was significant and for which there was no reasonable excuse”.17
14 May v May (1982) 1 NZFLR 165 (CA) at 170, approved in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
15 New Zealand Police v Tepania, above n 3, at [75].
16 At [89].
17 At [92].
Mr Tepania’s position on appeal
[41] Mr Rasheed refined Mr Tepania’s position on his appeal relating to CPA costs. Rather than describing the procedural failure generally, as the failure to facilitate Ms Ott’s availability as a witness, he described it more specifically as the police failure to disclose Ms Ott’s contact details once they had elected not to call her as a witness.
[42] Doing so avoids a further fundamental difficulty with the argument put to Judge Clark, arising from the definition of “procedural failure” set out in s 364(1). Under s 364(1):
procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act
[43] Since general non-facilitation of the availability of a witness does not involve failure or refusal to comply with a statutory requirement, rules of court or regulations, such contact could not amount to a procedural failure justifying an award of CPA costs.
[44] The issue, then, is whether police non-disclosure of Ms Ott’s contact details might amount to a failure or refusal to comply with the regulatory requirements described in s 364(1), specifically the Criminal Disclosure Act.
Was the non-disclosure of Ms Ott’s contact details a significant “procedural failure”, for which there was no reasonable excuse?
[45]Under s 17 of the Criminal Disclosure Act:
17 Restriction on disclosing address of witness or informant
(1)This section applies to information that identifies, or that may lead to the identification of, the address of the place where a witness or informant lives (for example, his or her postal address, residential address, email address, fax number, or phone number).
(2)The information may be disclosed to the defendant only with the leave of the court.
(3)The court—
(a)must not grant leave unless it is satisfied that the disclosure of the information is necessary in the interests of justice and outweighs any prejudice to the witness’s or informant’s
interests, or any harm to the witness or informant, that is likely to be caused by the disclosure of the information; and
(b)may, if it grants leave, impose conditions in relation to the disclosure of the information.
(4)This section applies to an informant regardless of whether the prosecutor intends to call the informant as a witness.
(5)Nothing in subsection (2) applies if it is necessary to disclose the information in the charge in order to ensure that the defendant is fully and fairly informed of the charge.
[46] The term “informant” is defined in s 6 of the Criminal Disclosure Act, so that “unless the context otherwise requires”:
informant means a person who provides verbal or written information (whether or not in recorded form) to a law enforcement officer
[47] That Parliament intended its prohibition of prosecutorial disclosure of contact details, without the leave of the court, to operate fulsomely is confirmed by two things:
(a)Section 13 of the Criminal Disclosure Act, headed “Full disclosure” and containing the prosecutor’s obligation to disclose specified information as soon as is reasonably practicable after a defendant has pleaded not guilty, operates in harmony with s 17 by providing at s 13(3)(c) for disclosure of:
the name and, if disclosure is authorised under section 17, the address of any person interviewed by the prosecutor who gave relevant information and whom the prosecutor does not intend to call as a witness; and—
(i)any written account of the interview, whether signed or unsigned, and any other record of the interview; and
(ii)any statement made to the prosecutor by the person;
Thus, once a prosecutor has decided not to call an interviewed person who has relevant information, they must still not disclose the person’s address unless the court grants leave under s 17(2).
(b)Section 17 was amended on 1 July 2013 by the Criminal Disclosure Amendment Act 2011. Two amendments were made. First, whereas
previously information as to the address of a witness or informant might have been disclosed either with their consent or with the leave of the court, the Amendment Act removed the former route to disclosure. And second, s 17(5) was added.
In combination, it is clear that Parliament considered the potentially significant consequences, in terms of limiting defendants’ access to evidential material, of its strongly worded prohibition of contact details disclosure. And that it addressed them by providing for disclosure of information necessary to understand the charge, and otherwise for disclosure only if approved by the court.
[48] Given s 17, it cannot have been a “procedural failure” for police not to disclose Ms Ott’s contact details. Despite their intention not to call her as a witness, and notwithstanding her consent to her contact details being disclosed, s 17 prohibited such disclosure without the leave of the court before which Mr Tepania was being prosecuted.18
[49] It may be noted that s 30 of the Criminal Disclosure Act provides for defendants to apply for court orders that items or types of information held by prosecutors be disclosed. There is no such provision enabling applications by prosecutors.
[50] Overall, I conclude that Judge Clark was correct not to find the police responsible for a significant procedural failure for which there was no excuse. To the contrary, had they acted as Mr Tepania suggests they should have done, they would have acted unlawfully.
The appeal on CCCA costs
Judge Clark’s reasons for declining CCCA costs
[51] In respect of Mr Tepania’s claim under the CCCA, the Judge cited s 5 of that Act, which sets out a list of factors for consideration (see further below), and worked
18 Criminal Disclosure Act, s 7 (“Meaning of court and Judge”).
through each, reminding herself that in criminal matters, “ordinarily costs will not be given and something special is required to warrant an award”.19 The following extract sets out the Judge’s reasoning on factors I consider significant:
(c) Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty
[58] I do not consider that there was evidence which, prior to Judge alone trial, the police would have considered suggested that Mr Tepania might not be guilty. I became aware of the evidence that they had compiled via my dealings with this file prior to Judge alone trial, and I did not form that view.
(d) Whether generally the investigation into the offence was conducted in a reasonable and proper manner
[59] A full complaint was taken from Ms Andreassend on the night of the alleged offending and the discharge summary was later obtained. Ms Ott was spoken to, and photographs were taken. Upon arrest, a video interview which included the defendant’s alternative version of events, was completed.
[60] Although on his own admission Mr Lovell-Shippey should have been more thorough in relation to his note taking on 23 December 2017, the fact remains that Ms Ott was spoken to and confirmed what she had observed outside. Overall, I consider that the police investigation into the alleged assault was conducted in a reasonable and proper manner.
(e) Whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point
[61] Although in the end I acquitted Mr Tepania, at the beginning of the Judge alone trial I considered the evidence against him to be compelling. It was only after all of the evidence had been heard, and the issues of credibility, reliability, consistency, and the reasonableness of the competing accounts had been considered, that I found that I could not be sure about what had occurred at the time of the alleged assault inside the house.
(f) Whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross- examination of witnesses for the prosecution or otherwise) that he was not guilty
[62] I did not conclude that I preferred the evidence of the defendant with regard to the alleged assault inside the house. Rather, I concluded that I could not be sure whose version of events was correct. This was more to do with the adequacy of explanations from the complainant as to her own behaviour following the alleged offending, than matters raised by the defence.
19 New Zealand Police v Tepania, above n 3, at [15], citing R v W HC Timaru T980940, 1 March 1999 at [9].
[52] Overall, the Judge did not regard any matter raised by Mr Tepania to be “out of the ordinary for a case of this nature”, declining an award under the CCCA on that basis.20
[53] In reaching this finding, Judge Clark clearly took the view that the case was an appropriate one for police to put before her for decision-making on the merits. Perhaps generously, the Judge recalled her own preliminary view of the pre-trial statements; that is, that if offered together at trial they would not necessarily have prevented Mr Tepania from being found guilty of an assault committed inside the house. Once the evidence was given at trial, the Judge’s preliminary view did not solidify into a finding beyond reasonable doubt. But this outcome was seen as far from inevitable.
Mr Tepania’s position on appeal
[54] In respect of Mr Tepania’s appeal on CCCA costs, Mr Rasheed submitted, in essence, that Ms Andreassend’s account of being assaulted inside her home was contradicted by the medical evidence, by Ms Ott’s account to then Constable Lovell-Shippey, and by Mr Tepania’s denials, to an extent that demanded an award of costs following Mr Tepania’s inevitable acquittal.
[55]In particular:
(a)The failure to take a formal statement from Ms Ott and the steps taken to exclude her from the prosecution (until effectively forced to call her as a witness), suggest the police did not take proper investigative steps in terms of s 5(2)(c) and s 5(2)(d) of the CCCA, and should not be regarded as having continued the prosecution in good faith.21
(b)The charge would have been dismissed following Ms Ott giving evidence, even had Mr Tepania not given evidence. He should not therefore be taken as having established his innocence, in terms of s 5(2)(e).
20 New Zealand Police v Tepania, above n 3, at [73].
21 Refer, Costs in Criminal Cases Act 1967, s 5(2)(a).
(c)The police failed to comply with relevant guidelines, including the Solicitor-General’s prosecution guidelines, continuing the proceeding when there was no realistic prospect of conviction.
[56] Accordingly, Mr Rasheed submits that Judge Clark was wrong to refuse to award costs under the CCCA.
Was Judge Clark wrong in exercising her discretion against an award of CCCA costs?
[57] Mr Tepania’s position on appeal cannot be substantiated given Judge Clark’s findings as summarised above.
[58] The Judge addressed the police prospects of success, such as they were prior to the eventual hearing. The Judge found it was only once the totality of the evidence was considered that she was left with an uncertainty about Ms Andreassend’s account of Mr Tepania assaulting her inside their home. Implicitly, until Mr Tepania was acquitted, there was a realistic prospect of his conviction.
[59] Further, the Judge acknowledged that former Constable Lovell-Shippey should have taken a more detailed statement from Ms Ott than he did. But Ms Ott gave evidence at trial largely in line with the basic statement she offered former Constable Lovell-Shippey. It was that material, rather than any additional material, which ultimately formed the foundation of Mr Tepania’s success at trial.
[60] In light of these matters, Mr Tepania’s further complaints, such as a lack of good faith on the part of the police, cannot be made out.
[61] In summary, the most unsatisfactory aspect of the proceeding against Mr Tepania was not the sufficiency of the evidence. It was that his trial took so long to be heard. But as indicated above, much of the delay was endemic within the court process. And the bulk of the further delay arose in the absence of what might have been straightforward applications by Mr Tepania: first, under ss 17 and 30 of the Criminal Disclosure Act for Ms Ott’s contact details; and second, for the issue of a witness summons. For these delays, the police were not primarily at fault. And they were not responsible for “procedural failure” in terms of s 364 of the CPA.
[62] Judge Clark has accordingly not been shown to have been wrong in the exercise of her discretion to refuse to award CCCA costs.
Result
[63]Mr Tepania’s appeal is dismissed. There is no order as to costs.
Johnstone J
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