Utumoengalu v Ministry for Primary Industries
[2015] NZHC 1088
•20 May 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-14 [2015] NZHC 1088
BETWEEN NANCY UTUMOENGALU
Appellant
AND
MINISTRY FOR PRIMARY INDUSTRIES
Respondent
Hearing: 20 May 2015 Appearances:
R Treloar for Appellant
O Klaassen for RespondentJudgment:
20 May 2015
JUDGMENT OF LANG J [on appeal against costs order]
This judgment was delivered by me on 20 May 2015 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
UTUMOENGALU v MINISTRY FOR PRIMARY INDUSTRIES [2015] NZHC 1088 [20 May 2015]
[1] Following a defended hearing in the District Court, Judge Andreé Wiltens convicted Mrs Utumoengalu on charges of being in possession of undersized snapper and being in possession of excess quantities of snapper.1 The maximum penalties for these offences were fines of $10,000 and $250,000 respectively.2
[2] On 19 December 2014, the Judge sentenced Mrs Utumoengalu to 350 hours community work and ordered her to pay the sum of $1,500 towards the costs of the prosecution.3 Mrs Utumoengalu appeals to this Court against the imposition of the costs order.
Background
[3] The charges were laid as a result of an incident that occurred on 10 October
2013. On that date two fishery officers were on general patrol in the Kawakawa Bay area. Whilst in the car park near the boat ramp, they noticed a vehicle towing a trailer with a vessel on it. There were two adults and one young person in the vehicle. The two adults were Mrs Utumoengalu and her husband.
[4] Mrs Utumoengalu’s husband did not speak good English, so the fishery officers spoke to Mrs Utumoengalu. She told them that she and her husband had been out fishing. When asked whether they were aware of the legal limits and minimum size for taking snapper, Mrs Utumoengalu told the officers that they knew they were permitted to take nine snapper each and that the fish had to be at least 27 centimetres in length.
[5] Mrs Utumoengalu then showed the fishery officers a blue plastic bin containing 27 snapper. This represented the legal limit for her group. When asked whether there were any other fish on the vessel, she responded that there were not.
[6] The officers then climbed onto the vessel and began searching it. In a locker in the floor of the vessel they found a canvas bag containing 40 further snapper. Of
these, three were found to be less than 27 centimetres in length.
1 Ministry of Primary Industries v Utumoengalu [2015] NZDC 3520.
2 Fisheries (Auckland and Kermadec Areas Amateur Fishing) Regulations 1986, Regulation 3C
and Fisheries Act 1996, ss 232(1) and 252(3).
3 Ministry of Primary Industries v Utumoengalu [2015] NZDC 3726.
[7] The two officers then questioned Mrs Utumoengalu and her husband further. One of the officers gave evidence that the following exchanges occurred during his interview of Mrs Utumoengalu:
… My first question to her was, “Tell me about today’s events from when you left home.” Her answer, “We left home, the three of us at 9.00 am and we drove to Kawakawa Bay, my husband Loseli and my 15 year old son [J]. We left Kawakawa Bay about 11.00 am keen to go fishing. We fished in the middle. All three of us were fishing. None of us counted how many fish we caught but my husband and I caught a lot. My husband and I knew that we were allowed nine snapper each. When I saw Fisheries Officers I was worried because I knew that we had snapper under the floor. My husband put the fish under the floor. I lied to the Fishery Officer because I was afraid. This is the first time we’ve been checked by a Fishery Officer. My husband has been checked many times before and this is the first time we had taken too many fish. My husband usually fishes with his brother [O] and [RW]. [R] owns this boat. He lives at [].” I followed that with a question, “You caught 67 snapper, way too much to eat, do you sell it?” Answer, “No. [O] couldn’t come so we had to give fish to them and for the family to eat with school. I know it is illegal to sell. I phoned a Fishery Officer and talked to them about selling fish and they gave me all the information. I was told about commercial fishing, that I have to buy it from the fish market first so that I can sell it at the flea market at Mt Roskill, corner of Sandringham and Gifford Road on Tuesdays and Fridays.” My question, “Anything else to add?” Answer, “No. Sorry for what we have done.” …
[8] Given the quantity of snapper that the officers had found, they seized the vessel and placed it in secure storage at the Ministry’s premises. Four days later, it became necessary for the vessel to be moved outside because of an extremely putrid smell that was emanating from it. The officer who moved the vessel then noticed a large quantity of blood flowing out of the rear of the vessel. This prompted him to re-inspect the vessel. When he did so, he found a trail of blood leading from the forward area of the vessel towards the rear. In the front cabin he found a piece of marine ply tacked down with screws. When he removed the ply, he discovered a large quantity of rotting snapper packed tightly in the space below it. A total of 258 snapper had been hidden in this compartment. This meant that Mrs Utumoengalu and her husband had been in possession of 325 snapper, nearly 300 more than the legal limit. Of these, 38 were found to be less than 27 centimetres in length.
[9] This discovery prompted the fishery officers to re-interview Mr and Mrs Utumoengalu later that day. The interview was recorded on videotape. During this interview Mrs Utumoengalu attempted to distance herself from the offending. She
said she had spent much of the fishing trip in the cabin of the vessel trying to sleep because the sea was rough and she became seasick.
The hearing in the District Court
[10] Mrs Utumoengalu and her husband were both charged as a result of the incident. Mr Utumoengalu pleaded guilty to the charges, but Mrs Utumoengalu defended them on the basis that the excess fish had been caught by her husband whilst she was lying down in the cabin of the vessel as a result of her seasickness. Mrs Utumoengalu’s husband gave evidence supporting her on this point. To counter this anticipated defence the Ministry called evidence from a meteorological expert, who said that the weather conditions on the day of the alleged offending had been benign for most of the day.
[11] The Judge rejected the evidence given by both Mrs Utumoengalu and her husband, and found both charges proved. He described Mrs Utumoengalu’s defence of the charge as being “outrageous”. He subsequently also rejected an application by Mrs Utumoengalu for a discharge without conviction under s 106 of the Sentencing Act 2002. In ordering Mrs Utumoengalu to pay the sum of $1500 towards the cost of the prosecution, the Judge said:
[7] As well as there was tremendous work involved in having to clean up the mess because you had hidden these fish in the boat and the officers were unaware of it, and you did not volunteer it. They only discovered it when they went back to the storage shed on the Tuesday, as I say, and their noses told them the story. The clean up involved hours of work plus inconvenience for the officers. You are going to pay for that. I am making you pay costs to the prosecution of $1500. That is a relatively modest amount because of your particular circumstances. I am told that only you work, that your husband does not, and of course I know you have family to support. No doubt there are rent outgoings etcetera and your job is not of the highest paid. That is why I am ordering you to pay it at $25 a week. The first payment can be after the Christmas period, 15 January and then every Thursday after that.
The appeal
[12] Section 250(2) of the Criminal Procedure Act 2011 requires an appellate court to allow an appeal against sentence where it is satisfied there is an error in the sentence imposed and that a different sentence ought to be imposed.
Was there an error in the sentence imposed?
[13] Mrs Utumoengalu advanced numerous grounds in support of the appeal. Of these, only one has merit. This is that the Judge did not have jurisdiction to order Mrs Utumoengalu to reimburse the Ministry in respect of the time and inconvenience involved in cleaning up the boat after the final cache of snapper was discovered.
[14] The general jurisdiction to award costs in criminal proceedings is contained in s 4(1) of the Costs in Criminal Cases Act 1967 (the Act), which provides as follows:
4 Costs of the prosecutor
(1) Where any defendant is convicted by any Court of any offence, the Court may, subject to any regulations made under this Act, order him to pay such sum as it thinks just and reasonable towards the costs of the prosecution.
Section 2 of the Act defines “costs” as being “any expenses incurred by a party in carrying out the prosecution”.
[15] Counsel for the Ministry now accepts that the cost of cleaning up the vessel was not incurred in the course of carrying out the prosecution. Nor was there a direct nexus between the cleaning of the vessel and the prosecution.4 Furthermore, at the hearing in the District Court the Ministry did not identify any expenditure it had incurred in cleaning up the vessel. That is not surprising, because the Ministry did not seek an order for costs under that head.
[16] It follows that the Judge did not have jurisdiction to make the order for costs. It is therefore necessary to consider the second requirement of s 250(2), which is
whether the Court is satisfied that another sentence ought to have been imposed.
4 Barr v New Zealand Police [2009] NZSC 109, [2010] 2 NZLR 1 at [23].
Should another sentence have been imposed?
[17] Mrs Utumoengalu contends that no order for costs ought to be made. The Ministry points out, however, that it was charged the sum of $2,238.53 by the meteorological expert who gave evidence at the hearing. It says Mrs Utumoengalu ought to be required to contribute to those costs. This issue was raised during the sentencing hearing in the District Court, but the Judge did not rely upon it in making the order for costs.
[18] I consider that the Ministry’s argument has merit. The evidence by the meteorologist was necessary to counter Mrs Utumoengalu’s unlikely explanation that she was seasick on 11 October 2013 as a result of rough weather conditions. The Ministry incurred expenditure in obtaining that evidence. It is appropriate that Mrs Utumoengalu should contribute to the costs the Ministry incurred.
The witness’s fees
[19] The Costs in Criminal Cases Regulations 1987 are relevant in this context. Regulation 3 authorises the making of orders for payment of the expenses detailed in the Schedule to the Regulations. Schedule 1 sets out the scale of fees payable under the Act. Part 2 subpart C of the Schedule provides for “travelling expenses and costs incidental to the proceedings”. This relevantly provides:
…
(b) all other disbursements reasonably and properly incurred including –
(i) fees, allowances, and expenses paid to witnesses and interpreters, which must not exceed the fees, allowances, and travelling expenses prescribed by the Witnesses and Interpreters Fees Regulations 1974; and
(ii) the costs of enquiries, scientific and other investigations, and tests.
[20] The schedule to the Witnesses and Interpreters Fees Regulations 1974 (the Witnesses Fees Regulations) sets out the fees payable in respect of the time required by witnesses to prepare their evidence and attend Court. In the present case counsel agree that the maximum fees payable under these heads in respect of the
meteorologist’s attendances are $305 and $82 respectively. By way of contrast, the meteorologist’s actual fee for these services was $2,238.53 inclusive of GST.
[21] The Court has the power under s 13(3) of the Act to order costs in excess of the scale, but only in cases where that is justified “having regard to the special difficulty, complexity or importance of the case”. The Ministry does not seek to argue that the present case falls within this category.
[22] I therefore direct that Mrs Utumoengalu is to contribute the sum of $387 towards the costs incurred by the Ministry in relation to the meteorologist’s evidence.
Travelling expenses
[23] The Ministry also spent the sum of $463.13 on the witness’s return air travel from Wellington to Auckland, and reimbursed his taxi fares of $160.35. Ms Klaassen advises me that the Ministry appointed a Wellington-based expert because the Meteorological Service does not have an expert in Auckland who could give the evidence that the witness in the present case was required to give. She therefore contends that the order for costs should include reimbursement of those sums.
[24] Travelling expenses are dealt with under Part C of the Witnesses Fees
Regulations as follows:
8 Travelling expenses shall be as follows:
(a) the cost of travelling by such mode and class of public transport as the court or paying officer considers reasonable having regard to the distance travelled, the age and health of the witness or interpreter, and any other relevant circumstances:
provided that air fares shall not be allowed unless the court or paying officer is satisfied that any extra expense occasioned by the use of air transport is justified in all the circumstances:
[25] Ms Treloar submits that the Ministry made the decision to appoint an expert from Wellington, and that it should be required to meet the travel costs without contribution from her client. Her enquiries reveal that the Ministry could have
instructed an expert who resides in Hamilton, and this would obviously have been a far cheaper option.
[26] I am necessarily required to decide this issue based on statements made by counsel from the bar. For that reason a degree of caution is required. On the information presently available, the Ministry cannot be criticised for appointing a Wellington-based expert. In doing so, however, it accepted the risk that it would need to meet the witness’s travel costs. The decision to travel by air certainly cannot be criticised given the distance between Auckland and Wellington.
[27] Having regard to those factors, I consider it reasonable to require Mrs Utumoengalu to contribute the sum of $260 towards the travel costs incurred by the Ministry’s witness.
Result: orders
[28] The appeal is allowed. The order requiring Mrs Utumoengalu to pay the sum of $1500 towards the costs of the prosecution is set aside. In its place I make an order requiring her to contribute the sum of $647.00 towards those costs. She is to pay that sum in weekly instalments of $25, with the first payment to be made on
27 May 2015.
Lang J
Solicitors:
Crown Solicitor, Auckland
Counsel:
R Treloar, Pukekohe
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