Wynyard v The Queen - [2017] NZCA 104

IN THE COURT OF APPEAL OF NEW ZEALAND

CA219/2015
[2017] NZCA 104

BETWEEN	GLENDA MARY WYNYARD Appellant
AND	THE QUEEN Respondent

Court:

Randerson, Lang and Clifford JJ

Counsel:

R S Reed for Appellant
D R La Hood for Appellant

Judgment:

(On the papers)

3 April 2017 at 10am

JUDGMENT OF THE COURT

The appellant’s application for costs is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Ms Wynyard was found guilty following a Judge-alone trial in the District Court on 11 charges laid under the Crimes Act 1961. All of the charges related to the manner in which Ms Wynyard had caused her company, The Media Counsel Ltd (TMC), to conduct its business during the months before it went into liquidation. Ms Wynyard appealed against conviction on eight of the charges on which the trial Judge had found her guilty.
On 17 December 2015, this Court allowed Ms Wynyard’s appeal on seven charges and dismissed it in relation to the remaining charge.[1] The appeal succeeded in respect of six charges of theft by a person in a special relationship[2] and one charge of causing loss by deception.[3] It failed in respect of a charge of dishonestly using a document to obtain a pecuniary advantage.[4]
[1]Wynyard v R [2015] NZCA 610 [Substantive judgment].
[2]Crimes Act 1961, s 220.
[3]Section 240(1)(d).
[4]Section 228(b).
On 15 April 2016, the Court quashed sentences of home detention that had been imposed in the District Court and substituted a fine of $10,000 in respect of the four charges on which Ms Wynyard remained convicted.[5]
[5]Wynyard v R [2016] NZCA 112 [Results judgment] and Wynyard v R [2016] NZCA 135 [Final judgment].
Ms Wynyard now seeks costs in respect of the appeal under the Costs in Criminal Cases Act 1967 (the Act).

Relevant principles

The Act relevantly provides as follows:
8 Costs on appeals
(1)Where any appeal is made pursuant to any provision of Part 6 of the Criminal Procedure Act 2011 the court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.
…
(6)If the Court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.
The principles governing the discretion to award costs following a successful appeal are now well established through decisions such as R v Kerr, R v Leitch, R v Rust, Hancock v R and Smith v R.[6] In short, a decision to award costs in respect of a criminal appeal is the exercise of a broad judicial discretion but there must be good grounds for making it. An applicant for costs must therefore identify the grounds on which the Court should exercise the discretion in his or her favour. The fact that an appeal has…

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 Wynyard v The Queen

Details

AGLC: Wynyard v The Queen [2017] NZCA 104
Case: [2017] NZCA 104
Decision Date: 3 April 2017 at 10am

CaseChat Overview and Summary

In Wynyard v The Queen, Ms Wynyard appealed against her convictions on eight charges, related to her conduct in managing her company, The Media Counsel Ltd (TMC), before it went into liquidation. This Court previously allowed Ms Wynyard's appeal on seven charges and dismissed it in relation to the remaining charge. Ms Wynyard now seeks costs in respect of the appeal under the Costs in Criminal Cases Act 1967. The Act provides for the Court to award costs in criminal appeals if there are good grounds to do so. The Court's discretion to award costs in criminal appeals is broad but must be exercised on good grounds.

The Court considered Ms Wynyard's argument that the Crown should have appreciated from an early stage that it had no answer to her argument on the appeal because it was plainly legally correct. Ms Wynyard submitted that the Court should denounce the Crown's approach by making an award of indemnity costs in her favour. Ms Wynyard also submitted that an award of costs was justified under s 8(6) of the Act, which permits the Court to make an award of costs irrespective of the outcome of an appeal where the appeal raises a difficult or important point of law. The Crown opposed the application for costs, submitting that it had a sufficient evidential basis on which to find the charges proved and that the Crown's prospects of success on appeal were not so remote that any award of costs on the appeal would be appropriate.

The Court considered the Crown's decision to oppose the charges in light of the approach taken by the trial Judge and this Court in determining the charges in respect of which Ms Wynyard succeeded on appeal. The Court concluded that the Crown's approach in resisting the appeal was reasonable and that there were no good grounds to exercise its discretion in Ms Wynyard's favour. The Court declined the application for costs.

The application for costs is declined.

Orders