The Queen v Donovan - [2007] NZCA 46

IN THE COURT OF APPEAL OF NEW ZEALAND
CA386/06
[2007] NZCA 46
THE QUEEN
v
JASON JOHN DONOVAN
Hearing:12 February 2007

Court:Arnold, Panckhurst and Priestley JJ
Counsel:P J Dale for Appellant

K Raftery for Crown

Judgment:6 March 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
A challenge to a costs order
[1] After the appellant was acquitted at the conclusion of a District Court jury trial he sought costs in terms of the Costs in Criminal Cases Act 1967. The trial Judge, Judge Deobhakta, concluded that the police investigation of the case was inadequate and that an award of costs was justified. He awarded a sum of $10,000.
[2]       This appeal represents a challenge to the adequacy of the sum awarded. Mr Dale maintained that the trial Judge erred in the exercise of his discretion, in particular because the defence placed its cards on the table in advance of trial and inadequate steps were taken to investigate the merits of the prosecution at that stage. Further, counsel argued, the trial Judge gave no reasons for arriving at the figure of only $10,000, when the costs incurred in the context of a five day trial were in excess of five times that sum.
The background
[3]       The appellant was charged that in January-March 2002 he fraudulently took possession of a document capable of being used to obtain a pecuniary advantage (a cheque), forged the cheque (by drawing it for $32,000 and signing the signature of his former partner) and used the forged document (by cashing it). A complaint to this effect was made to the police in March 2002.
[4]       The complainant was Mr Donovan’s former partner, Ms Chen. She held the signing rights to a company account held with the Bank of New Zealand. The gist of the Crown case was that Mr Donovan must have removed a cheque from the company cheque book while he and Ms Chen were still living together, that he subsequently forged her signature and then cashed the cheque on 28 March 2002.
[5]       A handwriting expert gave evidence confirming that the signature on the cheque was forged. Other details on the cheque were computer generated. Although the police were advised that it may have been possible to ascertain whether such details emanated from a computer in the control of Mr Donovan (or one in the control of Ms Chen) neither computer was checked.
[6]       The appellant was interviewed in late May 2002. The essence of his defence was disclosed at that interview. He said that in January 2001 he was in a relationship with Ms Chen. He loaned her $30,000 which she required in part for family purposes. This sum was obtained by raising a mortgage over a property owned by Mr Donovan. He said that Ms Chen paid interest on the advance by automatic fortnightly payments into his National Bank account.
[7]       The relationship failed in late 2001. The appellant…

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: [2007] NZCA 46
Decision Date: 6 March 2007

CaseChat Overview and Summary

The case of The Queen v Donovan involved an appeal against a costs order made by the trial Judge, Judge Deobhakta, who had concluded that the police investigation of the case was inadequate and that an award of costs was justified. The appellant, Mr Donovan, was acquitted at the conclusion of a District Court jury trial and sought costs in terms of the Costs in Criminal Cases Act 1967. The trial Judge awarded a sum of $10,000, which the appellant now sought to challenge. The appeal raised issues about the adequacy of the sum awarded, and whether the trial Judge had erred in the exercise of his discretion in awarding the amount, given the defence had disclosed its case in advance and the investigative steps taken were deemed inadequate. The appeal also argued that the trial Judge did not provide reasons for arriving at the figure of $10,000, despite the costs incurred in the context of a five-day trial being in excess of five times that sum.

The Court of Appeal considered whether the trial Judge had overlooked any relevant matters or if the award itself was challengeable. The Court concluded that the trial Judge had given due consideration to the relevant factors and that the award of $10,000, while a matter of impression, was not plainly wrong and was within the range available to the Judge. The appeal was dismissed.

The final orders of the Court of Appeal were to dismiss the appeal, affirming the costs order made by the trial Judge. The appellant was not granted the higher costs he sought, and the $10,000 award remained in place as the appropriate sanction and reflection of the justice of the case.

Orders