R v Allison [2020] NZHC 2583 (1 October 2020)

Last Updated: 25 November 2020

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2020-412-19 [2020] NZHC 2583

BETWEEN	THE QUEEN Appellant
AND	EOIN MURRAY ALLISON Respondent

Hearing:	15 September 2020
Appearances:	R K Thomson for Appellant (by VMR) W J Wright and M Bae for Respondent (by VMR)
Judgment:	1 October 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 1 October 2020 at 3.45 pm

Registrar/Deputy Registrar Date:

R v ALLISON [2020] NZHC 2583 [1 October 2020]

• [1] The respondent, Eion Allison, shot and killed his neighbour’s dog, Flex. The Crown charged him with one offence under the Animal Welfare Act 1999 and two offences under the Arms Act 1983. At his Judge-alone trial, and after the Crown case had closed, Mr Wright (for Mr Allison) applied for the dismissal of the charges under s 147 Criminal Procedure Act 2011. Judge D J L Saunders, upon hearing submissions, dismissed all three charges and discharged Mr Allison.¹

• [2] Mr Allison then applied for an order that the Police pay him indemnity costs of $50,000 together with witness expenses of $1,874.40. The Crown acknowledged the Court’s discretion to award costs but submitted this was not a case for costs in excess of scale, and that any costs awarded should be from the fund administered by the Ministry of Justice and not awarded against the Police.

• [3] The Judge, by reference to his calculation of a fair and reasonable fee for the steps in the proceeding, ordered that the Ministry of Justice pay a sum of $47,265 on account of costs and $1,874.40 on account of disbursements (both including GST) (the costs decision).²

Appeal

• [4] The Solicitor-General appeals the costs decision on the grounds that the Judge erred by:

(a) failing to take into account relevant considerations in the exercise of his discretion, particularly that the prosecution was brought and conducted in a proper manner;

(b) ordering costs in excess of scale without applying s 13 Costs in Criminal Cases Act 1967 (CCCA); and

(c) awarding costs on an indemnity basis when there was no proper basis to do so.

¹ R v Allison [2019] NZDC 8572.

² R v Allison, DC Christchurch CRI-2017-012-2123, 28 May 2020 [costs judgment]

Conduct the subject of the charges

• [5] Mr Allison lived next to the Brosnahan family on the outskirts of Dunedin. The Brosnahans’ daughter owned an eight month old Labrador/Huntaway cross named Flex.

• [6] The incident with which Mr Allison was subsequently charged occurred on 30 August 2017.

• [7] Approximately one week earlier, Mr Allison had spoken to Ms Brosnahan, expressing concern that Flex had been in the Brosnahans’ paddock chasing sheep. He stated that she needed to make sure the dog was properly restrained and looked after. He told her that she was lucky that he had not shot the dog.

• [8] On 30 August 2017, Ms Brosnahan had left Flex tied up at his kennel before leaving for school. Ms Brosnahan’s grandfather, Mr Brosnahan Snr (since deceased), was at the property in the afternoon. In a statement Mr Allison made to the Police a week later, he explained that he saw an incident in the Brosnahans’ paddock in which Flex was running amongst a mob of ewes who had lambs. He stated that Flex had managed to pull one ewe down by biting into the back of its legs and was pulling wool from its back legs and throat. Mr Allison shot at Flex, wounding him in the hindquarters. He missed with a second shot. At that point, Mr Brosnahan Snr appeared over the hill in response to the gunshots. The dog headed back to the Brosnahan homestead, the two men following. At the homestead, Mr Brosnahan Snr tied Flex up and walked towards his car to make a phone call. As he did so, he heard two gunshots as Mr Allison shot Flex from a close range, killing him.

The evidence

• [9] At the District Court hearing, the Judge had in evidence the written statement of Mr Brosnahan Snr, who had died before the hearing. Evidence was also given by Ms Brosnahan and her father. A veterinary surgeon gave evidence as to the extent of damage done to Flex’s pelvis (by Mr Allison’s first shot), which would have required extensive surgery or amputation to relieve suffering. Either of the subsequent wounds to Flex’s head would have caused his rapid death. In cross-examination, the veterinary

surgeon agreed that if the dog was biting sheep so as to pull out chunks of fleece, that would have required considerable force, and that biting around hindquarters and the throat would be traumatic for the sheep.

• [10] Constable Mathew Davidson produced the record of Mr Allison’s interview. In that interview with Mr Allison and in his cross-examination, Constable Davidson confirmed that, after the incident, he had been to the address to have a look at the sheep and had seen some wool missing from one of the sheep (from its back). Constable Davidson also confirmed that photographs taken showed large chunks of wool on the ground in the paddock, some five days later.

The prosecution history

• [11] The Police initially charged Mr Allison under the Animal Welfare Act with the wilful ill-treatment of Flex, based on the second shooting.

• [12] When Mr Allison pleaded not guilty to that charge, the Police proposed to amend the charge to one of discharging a firearm in or near a dwelling with intent but then determined to continue with the original prosecution. Mr Allison elected trial by jury and filed an application for dismissal of the charge under s 147 Criminal Procedure Act. For Mr Allison, reliance was placed on High Court authority indicating that close range shooting of a dog which causes immediate death cannot be either ill- treatment or wilful ill-treatment.

• [13] The Crown, upon taking over the case, laid charges of ill-treatment of Flex (through the first shooting) and also possession of a firearm except for a lawful, proper and sufficient purpose. The Crown opposed a dismissal of the initial Police charge, leading to full argument and a reserved decision. As the Judge was not in a position to immediately deliver a decision and the charge was not being proceeded with, Mr Allison withdrew the discharge application to avoid further delay.

• [14] The charges which then went to trial were:

(a) ill-treatment of an animal (a strict liability offence, by shooting Flex’s hindquarters (under ss 29(a), 30 and 37 Animal Welfare Act);

(b) unlawful possession of a firearm, in respect of the first time Flex was shot (in the hindquarters) (under s 45(1) Arms Act); and

(c) unlawful possession of a firearm, in respect of the second time Flex was shot (and killed) (under s 45(1) Arms Act).

• [15] After Mr Brosnahan Snr died (in May 2018), the Police applied to have his police statement admitted as hearsay evidence. That application was declined in the District Court, but the statement was ruled admissible on appeal.³

The Crown case at trial

• [16] For the events involved in Flex’s shooting, the Crown relied on the evidence of the Brosnahan family, including the written statement of Mr Brosnahan Snr. The Crown relied on evidence indicating that Flex was friendly with their sheep, that the sheep did not appear distressed and that they had no visible injuries on the day of the alleged offending, and that wool in the paddocks was not unusual at the end of winter. The veterinarian’s evidence in relation to the post-mortem examination of Flex was that the injuries to his hindquarters (although severe) were treatable. That witness also confirmed that if a dog had torn wool from a sheep, it would at least visibly bruise, if not break the skin.

Submissions for the Crown

• [17] The offence under s 29(a) Animal Welfare Act is established if the prosecution proves that the defendant has ill-treated an animal (strict liability applying).⁴ The prosecution case was that Mr Allison’s shooting Flex was ill-treatment because Flex had not been attacking the sheep. On this appeal in relation to costs, Ms Thomson concedes that it was open to the Judge, upon the evidence, to have satisfied himself upon the account in Mr Allison’s police interview that Flex had in fact attacked the sheep.

³ Police v Allison [2018] NZDCC 26421; rev’d R v Allison [2019] NZHC 661.

⁴ Animal Welfare Act 1999, s 30.

• [18] Section 73(1) Dog Control Act 1996 is relevant and was invoked by Mr Allison from the outset. It exempts from criminal or civil liability for injury done to a dog (or its death) any person who (entitled under the Act to destroy any dog) does so in a reasonable manner or who wounds or maims the dog in the course of attempting to so destroy it.

• [19] Section 73(2) Dog Control Act is also relevant in that the s 73(1) immunity does not apply to a person who, having wounded a dog in the course of attempting to destroy it, does not take all reasonable steps to terminate its suffering.

• [20] It was Mr Allison’s case that he had immunity from prosecution under s 73 because he had been authorised by s 57(1)(b) Dog Control Act to destroy Flex because he did so for the purposes of stopping an attack on the sheep, having witnessed Flex attacking sheep.

• [21] Both Mr Allison’s alleged offences under s 45(1) Arms Act required the prosecution to prove that, except for some lawful, proper and sufficient purpose, Mr Allison was in possession of the firearm. As in relation to the ill-treatment charge, Ms Thomson accepted in this costs context that it had been open to the Judge to be satisfied upon the accounting of Mr Allison’s police interview that Flex had attacked the sheep, and that therefore his possession of the firearm at that point was lawful.

• [22] As I have noted, the Crown accepted the close relationship between charges one and two and the likelihood of a parallel finding on those two charges. In relation to charge three, the Crown’s position was that different considerations applied.⁵ The Crown’s case was that once Flex had been seized (and tied up) it was no longer necessary for Mr Allison to shoot Flex. The Crown asserted that responsibility for future action then lay with those administering the Dog Control Act (under the provisions of s 57(2)–(7) of the Act).

• [23] The Judge, having concluded that Mr Allison had a defence on both charges one and two, determined the outcome of the third charge in this way:

⁵ R v Allison, above n 1, at [13].

[26] The third charge permits me to look at the overall circumstances. The dog was shot in the paddock and this was not a minor injury. Had the matter been reported and proved it is likely that a destruction order would have followed. Again, that is not something that Mr Allison specifically would have had in mind. The dog, however, was badly injured and whether or not the defendant was angry about the matter I find that he was entitled to call in aid ss 57 and 73 Dog Control Act.

• [24] The Judge implicitly rejected the Crown submission that, at the point Mr Allison destroyed the dog, Flex was not injured to the point where destruction was justified.

• [25] On this appeal in relation to costs, Ms Thomson again submitted that the evidence, properly examined, did not indicate that Flex was mortally wounded by the shot to his hindquarters to such an extent that was reasonable for Mr Allison to kill him to terminate his suffering (under s 73(2) of the Dog Control Act). The evidence of Mr Brosnahan Snr had been that Flex had walked home without apparent difficulty, including over fences, and the expert evidence was that his hindquarters wound was treatable. Section 73(2) Dog Control Act is concerned with “termination of suffering”, which the Crown submitted on the evidence was achievable without terminating Flex’s life. For instance, by keeping Flex comfortable while awaiting veterinary treatment. The burden of proof under s 45(2) Arms Act was on Mr Allison to establish the existence of the lawful, proper and sufficient purpose.

• [26] Ms Thomson, while not seeking now to relitigate the issue of Mr Allison’s discharge, submitted that it is important to consider the basis and grounds of the findings in order to determine whether costs of the sum awarded were justified.

Submissions for Mr Allison

• [27] Mr Wright presented extremely detailed submissions as to the procedural history of the prosecution. He referred (correctly) to initial misconceptions in the prosecution case leading to the aborted early s 147 application and the amended charges once the Crown took the prosecution over. He refers also (correctly) to the way in which Mr Allison, through his lawyers, put his cards on the table and sought to dissuade the Crown from proceeding with the prosecution. He then referred in detail

to evidence which was in the Crown’s hands. This included Flex’s previous conduct with sheep and the wool seen in the paddock and observed missing from one sheep.

• [28] Mr Wright submitted that the Crown should have known its case could not succeed. He submitted that there was no evidence upon which the Court could have concluded other than that the dog was attacking sheep when shot. He further submitted that the third charge (in relation to the fatal shooting) could not have succeeded because the close range of shooting to the head to cause the instant death of a dog is an accepted method of euthanasia. In undertaking it, Mr Allison was complying with his obligation under the Dog Control Act (s 73(2)) to terminate the dog’s suffering.

Analysis — basis of the Crown charges

• [29] As conceded by the Crown, it was open to the Judge on the evidence to dismiss the first two charges as he did. I accept that upon the basis of the evidence relied upon by the Crown to support those two charges, there was always a strong prospect that a s 147 application in relation to those charges would succeed.

• [30] The situation in relation to the third charge (and therefore the prosecution as a whole) was in a different category. In relation to Mr Allison’s decision to kill Flex, after he was wounded, it was Mr Allison who had the burden of proof under s 45(2) Arms Act. For the lawfulness of the killing, Mr Allison was invoking s 73(2) Dog Control Act which requires that the action be taken “to terminate [the animal’s] suffering”.

• [31] Without Mr Allison giving evidence at the trial as to his reasoning for killing Flex, the rationale which leads to the conclusion that Mr Allison was entitled to invoke s 73(2) is not straightforward.

• [32] In the judgment at [26] (above at [23]), the Judge referred to “whether or not the defendant was angry about the matter”. His Honour clearly had in mind the evidence of Mr Allison’s police interview in which he explained how he had come to kill Flex when tied up. In one passage he stated:

So look I am really bloody pissed off and sorry about this language I am very annoyed ah that they were irresponsible enough to after I’ve warned them to

let a dangerous dog to get out to be able to get out and run round the neighbourhood you know I’m really really hosed off about it and um (clears throat) anyway um I went back with ah Joe and ah I said ah if you can he doesn’t the dog doesn’t probably like me all that much at the moment because I shot him up the backside ah can you tie him up because ah well Joe said um he’s ah he’s a bad you know he’s bad breeding and he ah and that he didn’t want didn’t actually want them to have it he didn’t want the family to have that dog and ah he was ah agreed with me in that it had I said it’s got to go down this time and he said he agreed with me.

• [33] This and other passages in the police interview refer to the anger the Judge was touching on in his judgment. But the passage also suggests an explanation based on some form of permission to kill from a family member rather than an explanation based on the present suffering of Flex.

• [34] In another section of his interview, shortly afterwards, Mr Allison added:

... this little ratbag is just terrible (clears throat) once it got a once it started um it’s just getting progressively worse and ah there is no point in you know oh we’ll we’ll we’ll tie it up and put it in the shed or something the minute it got out it will be straight back there again it will be straight back into the sheep again and prob it might be mine ...

• [35] Again, this passage provides a further, different explanation for the immediate killing of Flex while tied up.

• [36] Later in his interview, Mr Allison gave an explanation which initially appears to relate to the worsening condition of Flex when tied up. The exchange was this:

MD Yeah. What was your reason for shooting it then [when tied up]?

EA Well um as I had winged it a bit and ah I reckoned that ah it had to be put down because it was just getting worse like it’s getting worser and worser

• [37] A few exchanges later in the interview, that statement is clarified:

MD So you said the reason you shot it that time was because it was getting worse and worse attacking sheep

EA Yeah

MD That’s the reason you shot it when it was tied up EA Yep

MD Did you consider the fact that because it was tied up and controlled, that might have been a time to have a discussion with the family or dog control more importantly about the dog

EA Ah I I just ah thought that it’s probably a good idea to put it down because it’s a it’s a bloody irresponsible dog you know it’s a dangerous dog to be running around just at will

• [38] In this costs context, the Crown (while not pursuing an appeal against the s 147 discharge) was entitled to have the Court consider carefully the sufficiency of the Crown evidence and matters relating to the reasonableness of the investigation and prosecution. The importance of that assessment increases in a case such as this where Mr Allison’s application was for indemnity costs.

• [39] The submissions which Mr Wright made on this appeal (which I infer reflected those made in the District Court) came close to equating the need to terminate Flex’s suffering with the need to terminate Flex’s life. It was at least arguable if not clear from Mr Allison’s police interview that the focus of his decision to kill Flex (the subject of the third charge) was in order to terminate Flex’s life so that there would be no further worrying of sheep by Flex.

• [40] In the Judge’s costs judgment there is a single sentence which explains why his Honour was satisfied that Mr Allison had discharged the evidential onus (under s 45(2)

Arms Act) without the need for him to give evidence. The costs judgment records:⁶

• [19] The evidence from the Vet who examined the dog after Mr Allison had shot it was that the dog would have suffered a significant injury from the first shot fired.

• [20] In my judgement [sic] of 7 May 2019 I was satisfied that Mr Allison was able to discharge the evidential onus under s 45(2) of the Arms Act without the need for him to give evidence.

• [41] The Crown is correct to submit that it does not follow from the fact that Flex had suffered a significant (indeed grave) injury that he had to be destroyed at that point. Mr Allison’s own statement to the police did not indicate that that was the reason for his killing Flex at that point.

⁶ Costs judgment, above n 2.

Costs considerations under s 5 CCCA

• [42] Section 5 CCCA applied to the costs order made in the District Court and applies on this appeal.

• [43] Section 5 provides:

5 Costs of successful defendant

(1) Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, the court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.

(2) Without limiting or affecting the court’s discretion under subsection (1), it is hereby declared that the court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—

(a) whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b) whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c) whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d) whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e) whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:

(f) whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g) whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

(3) There shall be no presumption for or against the granting of costs in any case.

(4) No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn.

(5) No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

• [44] The general test under s 5(1), in deciding whether to order the payment of costs to a successful defendant, is whether and to what extent the Court considers the award of any sum of costs is just and reasonable.

• [45] The list of considerations set out in s 5(2), while not exhaustive, are mandatory considerations.⁷

• [46] The provisions for s 5(4)–(5) establish that the bare fact of acquittal or a properly-brought prosecution is not sufficient of itself to warrant or prohibit a costs award. There must be other factors present to justify an award of costs.

• [47] As a central ground of appeal in this case, Ms Thomson submitted that there was an error of law involved in that the Judge did not refer to any of the mandatory considerations set out in s 5(2). The Judge instead proceeded from a recital of the respective submissions of counsel to a consideration of the appropriate costs award under the heading “Principles for the Award of Costs”. Ms Thomson observed that the analysis appears to have proceeded more or less directly to a quantification of indemnity costs without a determination (by reference to the relevant circumstances) to award costs.

• [48] The Judge’s analysis of the “principles” was set out in the following five paragraphs (before his Honour turned to issues relating to quantum):

• [31] Section 5 of the Costs in Criminal Cases Act 1967 sets out the basis upon which the Court can exercise its discretion to award costs.

• [32] S 5(2) requires the Court to have regard to all relevant circumstances and in particular the matters set out in paragraphs (a) to (q).

• [33] It is made clear that the Court can order a sum that it considers just and reasonable towards the costs of his defence.

7. R v Margaritis HC Christchurch T66/88, 14 July 1989 and Cavanagh v Police [2013] NZHC 2232 at [19].
   • [34] Case law decided over the years has provided some guidance to matters relating to the exercise of the discretion.

• [35] It is accepted that the Court is not constrained by the criteria set out in s 5(2) and that s 5(1) permits an “order that be paid such sum as it thinks just and reasonable towards the cost of his defence”.

• [49] In the absence of reference to the s 5(2) considerations in the Court below it is appropriate that this Court on appeal undertakes that analysis.

Section 5(2)(a) — good faith

• [50] Although it had been submitted for Mr Allison in the District Court that the prosecution had acted negligently and in bad faith in bringing and continuing the prosecution, the Judge did not in his costs judgment adopt that submission. I have been referred to no material indicating that the prosecution was otherwise than in good faith. While the Crown has abided by the outcome of the s 147 application, the dismissal of the charges does not of itself point to bad faith on the part of the Crown.

• [51] It is relevant that the Judge’s direction was that the costs and disbursements be paid by the Ministry of Justice. By reason of s 7(2) CCCA, his Honour could have directed payment by the Commissioner of Police on behalf of the Police if of the opinion that the prosecution had been conducted negligently or in bad faith. Such an order had been sought by Mr Wright, on behalf of Mr Allison, on the basis that the prosecution had acted negligently and in bad faith. It may be inferred from the direction made by the Judge that his Honour had concluded that there had not been a negligent or bad faith bringing or conducting of the prosecution.

Section 5(2)(b) — sufficiency of evidence

• [52] The Judge’s conclusion in relation to the sufficiency of evidence on the first two charges was open and understandable. For the reasons referred to at [30] – [41] above, the conclusion in relation to the third charge was less straightforward.

Section 5(2)(c) — proper steps of investigation

• [53] As with the defence submission based on bad faith, Judge Saunders did not adopt the submission based on negligence. I have not been referred to any particular

evidence of moment which points to inadequate investigation. Given that the key conduct of Flex on 30 August 2017 took place in view of Mr Allison only, there were limits (once Mr Allison himself had been interviewed) to the investigative steps the Police could take.

Section 5(2)(d) — the general manner of the investigation

• [54] I reach a parallel conclusion in relation to the general manner of the investigation as it applies to the costs award. (The Police did unlawfully retain Mr Allison’s firearms for a period but that is the subject of a separate civil claim.)

Section 5(2)(e) — dismissal on a technical point

• [55] The prosecution was not dismissed on a technical point but on an evidential finding.

Section 5(2)(f) — defendant establishing lack of guilt

• [56] Judge Saunders found as a matter of fact that no offences had been committed.⁸

Section 5(2)(g) — the defendant’s behaviour in relation to the investigation and proceedings

• [57] It is relevant that Mr Allison expended effort (through counsel) to persuade the Police/Crown against proceeding with charges which ultimately failed. The Judge, a very experienced Judge, has provided in the costs judgment (at [48]) a detailed analysis of the attendances involved in the District Court proceedings from arrest to discharge. His Honour has allocated an assessment of fees to those attendances. Some

30 per cent of the attendances related to Mr Allison’s ultimately unsuccessful challenge to the hearsay evidence of Mr Brosnahan Snr. If a Court (as the Judge did) were awarding indemnity costs, there would be good reason under s 5(2)(g) CCCA to limit the award to the remaining 70 per cent of attendances. In relation to the airfare claimed for Mr Allison’s daughter (as a witness), for whom permission had been obtained to give evidence by AVL, it may also be said that s 5(2)(g) considerations weighed against allowing that sum. But, the Judge (without articulating specific

⁸ R v Allison, above n 1, at [24]–[27].

considerations in that regard) must be taken to have considered there remained some valid reason for her attendance in person.

Other considerations

• [58] Neither Mr Wright nor Ms Thomson suggested that there were in this case considerations other than those listed in s 5(2) CCCA which should have weighed with the Court in the exercise of the costs discretion.

A costs award?

• [59] Although the Judge did not refer specifically to the required considerations under s 5(2), I am satisfied that his Honour was entitled in this case to make an award of costs. The basis upon which Mr Allison’s defence on all three charges succeeded was put forward by Mr Wright in order to bring the prosecution to an earlier conclusion. As Mr Wright indicated, this was far from a situation of a defence conducted by ambush. An award of costs payable by the Ministry of Justice was appropriate.

Costs in excess of scale — s 13 CCCA

• [60] In the costs judgment, the Judge proceeded directly from the decision to grant costs to an analysis of the calculation of a fair and reasonable fee on an indemnity basis (that calculation being explored from [36]–[48] of the costs judgment).

• [61] For the Crown, Ms Thomson submitted that the decision in relation to indemnity costs represents a further error of law. Section 13 CCCA provides for regulations to be made which will cover, amongst other matters, the prescription of maximum scales of costs that may be ordered to be paid under the CCCA.

• [62] The Costs in Criminal Cases Regulations 1987 (CCCR) applied at the time of the costs decision. Under sch 1 of the CCCR, the scale of costs applicable in relation to Mr Allison’s trial would amount to $339.⁹

⁹ Schedule 1, pt 1, Sub-pt A (3 x $113).

• [63] Accordingly, in this case it was not open to the District Court to award a sum beyond $339 unless the Court was satisfied, having regard to special difficult complexity or importance of the case, that the payment of greater costs was desirable.

• [64] It has been recognised by the Court of Appeal that any perceived inadequacy of the scale (having regard to when it was last fixed) is irrelevant to the determination of s 13(3) CCCA of “special difficulty, complexity, or importance”.¹⁰

• [65] For the Crown, Ms Thomson submitted that the case did not fall within the s 13 criteria of “special difficulty, complexity, or importance”. The subject-matter of the proceeding was not of unusual gravity. Mr Allison was not in real jeopardy of a prison sentence, let alone a lengthy one.¹¹

• [66] The pre-trial issues involved in this case were not out of the ordinary. The evidence was limited (five witnesses giving evidence). The single expert gave brief and not highly technical evidence.

• [67] Ms Thomson compared this case with Purcell v R, a case in which the defendant unsuccessfully sought costs beyond scale after being found not guilty by a jury on two counts of sexual conduct with consent induced by threat and one count of blackmail.¹² In that case, Mr Purcell’s legal costs for trial had amounted to $81,246, as contrasted with the scale award of $3,955. Mander J rejected the suggestion that the trial was of significantly greater complexity than is ordinarily encountered in a case involving sexual offending. His Honour also observed that while the case was important for the defendant, it was not important in the sense of legal importance.¹³

Outcome

• [68] I am satisfied that there was an error in the District Court decision to award indemnity costs to Mr Allison. Whether it arose through the failure to consider all the relevant circumstances identified in s 5(2) CCCA or to apply s 13(3) CCCA or a

¹⁰ Solicitor-General v Moore [1999] NZCA 269; [2000] 1 NZLR 533 (CA) at [29].

¹¹ Exposure to a long sentence was found to constitute “special importance” in Morris v Police

[2013] NZHC 1336 at [27].

¹² Purcell v R [2015] NZHC 531.

¹³ At [57]–[61].

combination of both, the result was that the entire focus was upon assessing what represented Mr Allison’s reasonable costs as between the solicitor and the client. In the circumstances of the case, it was appropriate that Mr Allison be awarded costs. That said, the case was not of such special difficulty, complexity or importance as to make it desirable that costs be paid in a sum greater than the scale.

• [69] I am not satisfied that there has been a demonstrated error in relation to the allowance of the disbursement relating to the attendance of a witness.

Orders

• [70] I order:

(a) The direction at [48] of the costs judgment is quashed.

(b) There is a direction that costs of $339 together with a disbursement of

$1,874.40 be paid by the Ministry of Justice to the respondent.

Osborne J

Solicitors:

Crown Law, Wellington

Wilkinson Rodgers, Dunedin