The Queen v MacKay - [2007] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/07

[2007] NZCA 316

THE QUEEN

ANTHONY SHANE MACKAY

Hearing: 27 June 2007

Court: Wilson, Rodney Hansen and Ronald Young JJ
Counsel: D La Hood for Crown

G D Trainor for Appellant

Judgment: 27 July 2007 at 3 pm

JUDGMENT OF THE COURT

A Leave to appeal granted and appeal allowed.

B Order for payment of costs quashed.

C Crown application for extension of time to appeal refused.

REASONS OF THE COURT
(Given by Ronald Young J)

R V ANTHONY SHANE MACKAY CA CA180/07 [27 July 2007]

[1] The appellant was found guilty by a jury of possession of cannabis for sale. He was sentenced to 2 years and 4 months imprisonment and, pursuant to the Costs in Criminal Cases Act 1967 (s 4), ordered to pay $6,000 in costs by Judge M A Crosbie, the sentencing Judge. It is against the latter order that this appeal is brought.

[2] The Crown accept that this was not an appropriate case for an award of costs. We agree.

[3] As a result of the execution of a search warrant at Mr MacKay's residence the police found 146 grams of cannabis, with a value of $2,800, some of which was packaged in aluminium foil. In addition, the police located $6,000 in a pocket of a pair of trousers in denominations of $20, $50 and $100 notes. Mr MacKay gave evidence denying the cannabis was for sale. Obviously, the jury did not accept his evidence.

[4] At sentencing the Crown sought forfeiture of the $6,000 pursuant to s 32 of the Misuse of Drugs Act 1975. The Judge concluded that he did not have sufficient evidence to establish what portion of the $6,000 was from cannabis sales.

[5] It is apparent that during counsel's submissions the Judge raised s 4 of the Costs in Criminal Cases Act 1967. As to this he said:

[13] In my view this was a matter where the jury's verdict was the only one open to it given the admissions that you made. It is a case where in my view it is appropriate, pursuant to that section, to order that all of the money taken from you be applied towards the cost of the prosecution. I accept Mr Trainor's submission that you should be given some credit for that.

[6] Counsel for the appellant submitted that an accused should not be penalised by a costs order for exercising his or her right to trial by jury or strenuously conducting the defence. But he accepted that costs may be imposed where there is an unnecessary prolonging of a trial by an accused: R v Minto [1982] 1 NZLR 606

(CA).

[7] In R v Jury CA 148/02 31 October 2002 this Court, dealing with costs awarded against an accused, said:

[25] In this case an order was also made that the appellant pay a
substantial sum towards the cost of the prosecution. The Courts in this country and in the…

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.

Continue reading The Queen v MacKay

Details

AGLC: The Queen v MacKay [2007] NZCA 316
Case: [2007] NZCA 316
Decision Date: 27 July 2007

CaseChat Overview and Summary

In the case of the Crown versus Anthony Shane MacKay, the appellant was found guilty by a jury of possession of cannabis for sale. He was sentenced to 2 years and 4 months imprisonment and ordered to pay $6,000 in costs by Judge M A Crosbie. The appeal against the latter order was brought before the Court of Appeal of New Zealand. The main legal issue was whether the order for the appellant to pay the costs was appropriate, considering that the Crown had accepted it was not an appropriate case for such an award. The Court of Appeal agreed with the Crown and quashed the order for payment of costs.

The Court of Appeal examined the circumstances of the case, including the evidence presented at the trial and sentencing. The police had found 146 grams of cannabis, with a value of $2,800, and $6,000 in cash in various denominations at the appellant's residence. The appellant denied that the cannabis was for sale, but the jury did not accept his evidence. The Court of Appeal noted that the appellant had not deliberately prolonged the proceedings or committed any misconduct during the trial, and therefore, the award of costs was not justified.

The Court of Appeal also considered the Crown's request for an extension of time to appeal against the District Court Judge's refusal to grant a forfeiture order under the Misuse of Drugs Act 1975. However, the Court rejected the Crown's submission, as the appellant had not been given the opportunity to give or call evidence relevant to his intentions with respect to the $6,000. Furthermore, the delay of 35 days without a justifiable excuse led the Court to refuse an extension of time for the Crown to bring this appeal.

Orders