Terry v Police - [2014] NZHC 240

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-418-004 [2014] NZHC 240

ROBERT FRANK TERRY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 20 February 2014 (Heard at Christchurch)

Appearances: Appellant in Person
C Butchard for Respondent

Judgment: 20 February 2014

JUDGMENT OF MANDER J

[1] Mr Terry appeals the decision of Judge S J O’Driscoll declining his application for travel costs upon the dismissal for want of prosecution of a charge he faced under the Telecommunications Act 2001. Mr Terry was charged with using a telephone device for the purposes of annoying a named individual, by calling that person up “without speech”.

[2] A fixture date was set in the Greymouth District Court for 13 January 2014. A previous hearing date had to be vacated when the matter was not able to proceed due to a lack of Court time.

[3] On 17 December 2013, the Police contacted the Greymouth District Court and the appellant advising they would be requesting an adjournment on the grounds
that the complainant was unavailable on the January date as her husband was having

TERRY v NEW ZEALAND POLICE [2014] NZHC 240 [20 February 2014]

surgery in Christchurch and she wished to be with him at that time. Unfortunately no application for adjournment was made before the hearing date itself.

[4] The appellant opposed the adjournment application which was subsequently declined by Judge O’Driscoll. The charge itself dated back to September 2012 and was by the time of the fixture in January of some 16 months vintage. The inability of the Court to accommodate the hearing of the matter on the earlier date was noted as was the considerable further time that would elapse before the matter could be heard.

[5] The District Court noted that ordinarily it would be prepared to grant the Police an adjournment because of unforeseen medical reasons, but having regard to the nature of the charge, which was not considered to be at the high end of the criminal scale, and the elapse of time there was a need to bring finality to the matter. The adjournment was therefore declined. As a result the Police were not in a position to offer evidence and the charge was accordingly dismissed.

[6] Mr Terry then applied to the Court to have costs awarded against the Police for his transport which, as he repeated on the hearing of the appeal, he maintained had required him to travel to the Court, as I discern it from Christchurch, some five times.

[7] Judge O’Driscoll declined the application on the basis that there were medical reasons relating to the availability of the complainant which had prevented the police from proceeding, and that Mr Terry had been advised prior to the fixture date of these difficulties. Judge O’Driscoll in the exercise of his discretion declined to grant costs.

[8] On the appeal Mr Terry submitted that Judge O’ Driscoll had erred in the exercise of his discretion. While acknowledging that the Judge had a right…

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: [2014] NZHC 240
Decision Date: 20 February 2014

CaseChat Overview and Summary

In the case of Terry v Police, the appellant, Mr Terry, sought to appeal the decision of Judge S J O’Driscoll in the Greymouth District Court declining his application for travel costs following the dismissal of a charge against him under the Telecommunications Act 2001. The charge involved Mr Terry using a telephone device to annoy an individual by calling them without speech. The District Court dismissed the charge for want of prosecution after the police requested an adjournment due to the unavailability of the complainant, which was ultimately declined.

The legal issue before the High Court was whether Judge O’Driscoll had erred in declining Mr Terry’s application for travel costs. Mr Terry argued that he was entitled to reimbursement for his travel expenses, amounting to $300, as the police should bear the cost when they fail to proceed with a case. The respondent argued that the decision to decline the costs was within the Judge's discretion and no error had been made. The court examined the discretion available under the Costs in Criminal Cases Act 1967 and noted that while there is no specific test for eligibility, the court must consider relevant circumstances, including whether the prosecution acted in good faith and if there was sufficient evidence to support the conviction.

The High Court held that the District Court Judge did not err in declining the travel costs. The dismissal of the charge was due to the complainant's unavailability, a circumstance beyond the control of the prosecution. The court found no basis to award costs as the dismissal was not due to any deficiency in the prosecution's case but rather the absence of the complainant. The systemic delays leading to the hearing date did not warrant reimbursement to Mr Terry. Consequently, the appeal was dismissed, affirming the District Court's decision.

Orders