The Queen v Afato - [2008] NZCA 208

IN THE COURT OF APPEAL OF NEW ZEALAND
CA39/2008
[2008] NZCA 208
THE QUEEN
v
FAY AFATO
Hearing:25 June 2008

Court:William Young P, Gendall and Ronald Young JJ
Counsel:B A Gibson for Appellant

M F Laracy for Crown

Judgment:4 July 2008 at 4 pm

JUDGMENT OF THE COURT

A        THE APPEAL IS ALLOWED.
B        Additional costs are awarded to the appellant of $20,000.
REASONS
(Given by Ronald Young J)
Introduction
[1]       In August 2005 Travelex had $390,000 stolen in a burglary of its Wellington Airport premises. The burglar(s) used a key and security codes to open external and internal doors and to open the safe.
[2]       Suspicion fell on the appellant, an employee of Travelex, when a closed circuit television tape recording showed the appellant and another employee apparently turning off the recorder before the burglary, and when the police discovered some of the security codes used by the burglar(s) were the appellant’s. The appellant was charged with burglary. She denied the charges. At trial, the Judge discharged the appellant pursuant to s 347 of the Crimes Act 1961 at the conclusion of the Crown’s case.
[3] Post acquittal, the appellant sought costs pursuant to the Costs in Criminal Cases Act 1967. She was awarded $8,072.80. The appellant says the Judge, in his costs decision:
(i)Failed to give any weight to the fact the appellant had established she was not guilty (s 5(2)(f));
(ii)Failed to take into account all of the circumstances of the case when assessing quantum of costs (s 5(2)(g)); and
(iii)Failed to take into account that a proper police enquiry may have resulted in either the appellant not being charged or the prosecution not continuing the case against the appellant (s 5(2)(a) - (d)).

[4]       As a result, the appellant says the quantum of costs awarded was inadequate.
Background facts
[5]       After the discovery of the burglary at Travelex, the police concluded that it had been committed by someone who had been, or was, working for the company. Whoever entered the premises had a key and security codes to get access to the premises and to the safe containing the money. Part of the security system at the premises was a camera with a video recorder, which covered the safe and other parts of the premises. During their investigation the police concluded that the appellant had turned off the video recorder twelve hours before the burglary and that the burglar(s) knew the recorder was off when he entered the premises. This, together with the use of the appellant’s security codes by the burglar(s), led the police to charge the appellant.
[6]       The appellant, when interviewed by the police, denied any involvement in the burglary and denied she had turned off the video recorder. She hired a private detective. His investigations revealed that if the whole tape was viewed it was clear the video recorder had not been turned off as the police thought. This information was provided by the appellant to the Crown at least four weeks…

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: [2008] NZCA 208
Decision Date: 4 July 2008

CaseChat Overview and Summary

The Queen v Afato is an appeal concerning the assessment of costs awarded to the appellant, Fay Afato, following her acquittal of burglary charges. The appeal was heard by the Court of Appeal of New Zealand on June 25, 2008. The appellant was an employee of Travelex, which had experienced a significant burglary at its Wellington Airport premises in August 2005, with a loss of $390,000. The burglar(s) had used a key and security codes to gain access to the premises and the safe. Suspicion fell on the appellant due to CCTV footage and the use of her security codes. The appellant denied the charges, and at trial, the Judge discharged her pursuant to section 347 of the Crimes Act 1961 at the conclusion of the Crown's case. The appellant sought costs under the Costs in Criminal Cases Act 1967 and was awarded $8,072.80. The appellant argued that the Judge had failed to consider certain factors when determining the quantum of costs.

The central legal issue in this case was whether the Judge had failed to consider relevant factors when assessing the quantum of costs awarded to the appellant following her acquittal. The appellant claimed that the Judge did not adequately consider her innocence, the potential for a proper police investigation to avoid charges, and the overall circumstances of the case. The Court of Appeal examined the relevance of these factors under section 5 of the Costs in Criminal Cases Act 1967, which outlines the circumstances to be taken into account when determining the quantum of costs.

The Court of Appeal found that the Judge had indeed failed to take into account the fact that the appellant established she was not guilty, which is a relevant factor for a Judge to consider in a costs application. The Court also found that the Judge's focus on reimbursing the appellant for private investigator costs was too narrow. The Court held that a proper police investigation would have revealed there was not sufficient evidence to charge the appellant, and a costs award was justified beyond reimbursing the private investigator's costs and legal fees relating to the security tape investigation. The Court concluded that the special difficulty, complexity, or importance of the case justified an award of costs above scale, but indemnity costs were not justified. The appeal was allowed, and the quantum of costs was increased by the payment of a further sum of $20,000 to the appellant.

Orders