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Court of Appeal of New Zealand |
Last Updated: 30 November 2011
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IN THE COURT OF APPEAL OF NEW ZEALAND
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CA310/99
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THE SOLICITOR-GENERAL
V
COLIN GARY MOORE
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Hearing:
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26 October 1999
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Coram:
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Keith J
Doogue J Panckhurst J |
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Appearances:
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J C Pike for the Solicitor-General
D L Stevens for the Respondent |
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Judgment:
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18 November 1999
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JUDGMENT OF THE COURT DELIVERED BY KEITH
J
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A Crown appeal against a costs order
[1] The Solicitor-General appeals against an order made by a District Court Judge under the Costs in Criminal Cases Act 1967 requiring the Police to pay Colin Gary Moore $54,000. This is the first exercise by the Crown of a right of appeal to this Court conferred last year on parties dissatisfied with decisions made under the 1967 Act.
The earlier course of the proceedings
[2] Mr Moore had been discharged under s347 of the Crimes Act 1961 on charges of cultivating cannabis and possessing cannabis for sale. That discharge, after a week of evidence, followed a decision to the same effect made, before trial, in favour of his wife. As well as discharging Mr Moore, the District Court Judge ordered a stay of proceedings for abuse of process. While we agree with Mr Pike, for the Crown, that this order must be redundant, the reasons for it may be relevant to the exercise by the Court of its powers concerning costs.
[3] Mr and Mrs Moore and their eight month old daughter lived on a property of about four hectares on Great Barrier Island. The Auckland Drug Squad carried out an operation on that island to identify where cannabis was growing and who was responsible. Cannabis was sighted on the Moores’ property from the air and a subsequent ground search revealed over 400 plants growing on that property and adjacent to it, extending from next to their house to 200 metres away. Most of the plants had been recently planted out. They were in a healthy condition indicating that they had been watered on a regular basis. Their root structure indicated that they had been grown in buckets. There were numerous buckets on the back lawn of the main house and in a shade house. Bags of dry cannabis were found under the porch of the house.
[4] Following a depositions hearing, the two accused conceded that a prima facie case existed on the two charges of cultivating cannabis and possessing it for sale. Consistently with that position, the Judge in the costs judgment under appeal had “no difficulty in finding that there was adequate evidence at the commencement of the proceedings to support a conviction”. That finding is stated in terms of one of the criteria to which the Court is to have regard under s5 of the 1967 Act (set out in para [22] below). The very broad terms of that provision make it appropriate, in this case probably essential, to describe and examine earlier phases of this proceeding, in particular a ruling excluding evidence and the s347 judgment.
[5] The examination of those phases is not of course in the nature of an appeal – which was not available in respect of either ruling (because of timing in the case of the ruling excluding evidence) – or judicial review which is an extremely rare prospect in this area; see Auckland District Court v Attorney-General [1993] 2 NZLR 129 for an example.
The evidential ruling
[6] The evidential ruling, made on the first day of the trial, excluded a book Indoor Marijuana Horticulture which had been produced at depositions. It had been found in the accused’s bedroom. The principal particular reason for excluding the book was that the case was substantially one of outdoor cultivation and that most of the book related to indoor cultivation; the general reason was that “the highly prejudicial effect outweighs any probative value in the context of this particular case”. There was also an affidavit from a person saying that he was a nephew of the accused, that the book was his and that he had left it at the accused’s place a few days before the Drug Squad operation. Resolving a dispute about that would, said the Judge, divert the jury from the main issues. We think there is considerable force in Mr Pike’s contention that the book was probative – it was about outdoor cultivation as well – that possession rather than ownership was the significant factor, and that the prejudice arising from it would have been legitimate. As well, the book would appear to fall within the description in s5(2)(b) of the Act of the “sufficient evidence” which the prosecution had at the commencement of the proceedings “to support the conviction of the defendant”.
The s347 ruling
[7] In his reasons for his s347 ruling, the District Court Judge set out, in summary, the defence submissions:
(a) There was no primary evidence that the plants found were cannabis either by producing the plants, or photographs of them, and he submitted the scientific analysis of samples taken was flawed by sloppy Police procedures.
(b) Coupled with that criticism the accused was not offered an opportunity to see the plants in situ.
(c) No surveyed plan of the Moore property was produced.
(d) Criminal discovery had not been properly completed prior to the trial commencing.
(e) Soil samples were not taken from bucket containers found adjacent to the dwelling nor from where the plants were found.
(f) Briefs of evidence of a relevant witness were not disclosed.
[8] The Judge mentioned the tests for a s347 application and said:
All the submissions made by Mr Williams [defence counsel], (as earlier recorded in (a) to (f)), to one degree or another were well founded. Each standing alone, or collectively with another, would be insufficient to meet the threshold. Cumulatively they disclose a careless investigation but, more significantly, very inadequate and totally unprofessional Police preparation. I identify the failure, in a number of respects, to complete proper discovery as the most serious. When that is combined ..., in the circumstances of this case, with the failure to take soil samples and properly identify the plants the cumulative effect was such that it was a properly case for the Court to exercise its powers and I was of the view the Crown case was in such a state, on the evidence, that it was ... “unlikely that a jury, properly directed, would convict ...” and furthermore ... “that it would have been wrong to have done so ...”. [quoting from R v Myers [1963] NZLR 321]
(Compare the more stringent tests for s347 applications stated in later cases, noted in Long v R [1995] 2 NZLR 691, 696.)
[9] He then added this “further circumstance”:
Another Judge considered, and granted, an application pursuant to s347 in respect of the then co-accused Anna Moore and discharged her. I am indebted to his analysis of the evidence in the case (as it was then after depositions but before trial). What troubles me is that if there are no relevant distinguishing features between the case against Mrs Moore and the accused, then I believe there would be an injustice if this accused was not dealt with similarly to Anna Moore. Mr Dean [for the prosecution] did not challenge that approach or at least offered no argument to the contrary. However, he submitted there were relevant distinguishing features.
[10] The Judge then went on to consider the earlier Judge’s analysis and the Crown’s submission on the features which allegedly distinguished Mr Moore’s case from Mrs Moore’s. He ran through 14 points and found that there were no distinguishing features between the Moores’ cases in evidentiary terms. He concluded that although he was not bound by the earlier Judge’s decision, there would be an illogicality and in his view a grave injustice if he declined the application which he accordingly granted.
[11] Given the central, apparently critical role of that earlier s347 ruling we briefly consider that ruling, especially one aspect of it. That aspect is the use by that Judge of affidavits from Mrs Moore and two others. The affidavits were admitted by consent. The Judge, citing Long (para [8] above) said that he used the material put in by the defence on the basis that they did not impinge on credibility or turn the s347 application into some sort of mini trial. Notwithstanding that limit, the Judge summarised the defence evidence as indicating that Mrs Moore was of good character, opposed to illegal drugs, was not an outdoor sort of person and not a gardener, and had as her main occupation caring for her young daughter and carrying out housekeeping duties. She maintained that she was unaware of the cannabis and did not participate in its cultivation. While that evidence is not expressly mentioned in the remainder of the ruling, it is difficult to see how it does not relate directly to credibility; it was concerned with exculpation of the accused by reference to her alleged state of mind. It is sharply different from the defence evidence considered in Long, a case of medical manslaughter:
... from a very early stage the defence formed the view that it could not be demonstrated that Dr Long's actions were a substantial and operative cause of the "victim's" death. Mr Haigh therefore supplied the prosecution with his experts' briefs of evidence. Effectively, he invited the prosecution to drop its case. The prosecution then (unsurprisingly) supplied those briefs to its experts, who had given evidence in the depositions hearing. They have reduced their views to writing. So I have had handed up to me the depositions evidence and the prosecution and defence expert briefs without objection from either the Crown or the defence. Mr Haigh now invites me to say, on the basis of those briefs, that properly directed, no jury could reach the conclusion that Dr Long's actions contributed to Mrs Boswell's death. Neither party saw this as being what Sir Ian Barker [in R v Slater (1994) 12 CRNZ 198, 201] regarded as objectionable – running a mini-trial. Rather, as will I hope become apparent in the course of this judgment, the essential problem in the present application is to determine whether a jury, properly directed, could draw an inference that Dr Long had caused the death of Mrs Boswell in the sense required under our law.
In the circumstances of this particular matter, although not without some hesitation, I have reached the view that I am entitled to review all of this evidence. ([1995] 2 NZLR at 697-698.)
[12] For the rest, to return to the earlier s347 ruling, the Judge concluded that the only evidence was “of propinquity or proximity to the cannabis along with her relationship with the other co-accused ... . There are no primary facts that could support an inference that the accused” committed the two offences or was party to them. Those conclusions are to be compared with the acceptance by Mrs Moore at the end of depositions that a prima facie case existed and with the Judge’s conclusion in the costs judgment that he had “no difficulty in finding that there was adequate evidence at the commencement of the proceedings to support a conviction” of Mr Moore (para [4] above).
[13] We now come to the second part of the s347 judgment relating to Mr Moore. This part was concerned with his application for a stay of proceedings for abuse of process. The Judge summarised and quoted extensive passages from the evidence of Detective [D] given at depositions, at trial and on a voir-dire. That evidence was concerned with events between the Detective and Mr Moore during which Mr Moore refused to be personally searched; following a warning that he would be arrested for obstruction, he was arrested and handcuffed; he was searched; after about five to 10 minutes the handcuffs were removed; Mr Moore was “unarrested” on obstruction; and he was charged with the cannabis offences. He was not charged with obstruction because, said the detective, that was a minor summary matter. The part of the note book concerned with those events was not disclosed at the appropriate time to the defence (or to the officer in charge or the Crown prosecutor) because, in the Detective’s opinion, it was not relevant to the matters before the Court. The defence contention was that the Detective’s failure to disclose both the incident of arrest and his notes relating to it amounted to a substantive abuse of process of the Court in its discovery procedure. The Crown submitted that the evidence of another detective showed that the accused had been cautioned and advised of his rights, that the issues arising from the incident could be covered by another detective whose unsigned brief of evidence had been handed to the defence during the course of trial, and that any problem could be remedied by an adjournment or by a new trial.
[14] The Judge reached this conclusion about the evidence:
I find Detective [D]’s evidence both at trial and on the voir dire gravely lacked in credibility and reliability. [His] demeanour was evasive. The transcript records his prevarication and illogical and often incomprehensible responses. Ultimately, on occasions, he took refuge in loss of memory or failing to connect the significance of the question to the material in his notebook. Furthermore, there were occasions when he failed to record important matters such as the “de-arresting” of the accused. The purported brief of Constable [C] is just that : handwritten unsigned pieces of paper of no value whatsoever. And of course neither the existence of Constable [C] nor any information he could give was disclosed to the Defence until [the] trial had gone some way. I reject Mr Dean’s submission [for the Crown that] whatever Constable [C] could say would overcome the prosecution problems.
[15] The Judge then turned to the non-disclosure of the notes relating to the arrest of Mr Moore before he was interviewed and concluded that he had
no hesitation ... in finding that there was an abuse of the Court’s process by failing to disclose very relevant material.
[16] Was that abuse of such a nature, he asked, to justify a stay? An order for a stay, even if only as a last resort, could be made in exercise of the Court’s inherent jurisdiction to prevent an abuse of its own processes, a jurisdiction supported by the New Zealand, Australian and English authorities he cited.
[17] Was there an alternative to a stay, such as an adjournment of the trial or a new trial? The Judge thought not, for practical reasons relating to the recalling of witnesses, the challenging of the interview evidence, the lack of available trial time, the costs to the defence, the inconvenience caused to defence witnesses. There was as well an “overriding reason”:
There is ample authority for the principle that a Court has a duty to maintain control over Police procedure and where appropriate impose censure.
[18] That “ample authority”, he said, was to be found in decisions of this Court and the Privy Council : R v Convery [1967] NZCA 37; [1968] NZLR 426, 438, R v Ibrahim [1914] AC 599, R v Ormsby [1985] 1 NZLR 311, 313, and R v Hartley [1978] 2 NZLR 199, 218.
[19] The Judge concluded his judgment in this way:
Throughout this trial there was evidence, almost on a daily basis, [of] matters which reflected a very poorly prepared Police case. Some examples were:
(a) Failure by the Police to photograph any of the cannabis plants in situ.
(b) Failure by the Police to photograph any of the plants recovered prior to destruction (with the exception of a sole plant recovered some time later following notice given by the accused to the Police of one he subsequently located).
(c) Failure by the Police to have camera equipment available to carry out the photographing (or at least a camera capable of taking appropriate photographs) and that has to be looked at against the background that this was a substantial Police operation launched by ground and air “to locate cannabis growing on the Island and to identify persons involved in the cultivation of it”.
(d) Failure by the Police to offer the accused an opportunity of looking at the plants either in situ or before they were removed from the property.
(e) An inaccurate brief of evidence presented at depositions where Constable [A] said he located under the deck at the rear of the house dried cannabis : when it was not in fact he but a Constable [B] who was not a witness at depositions but called at trial to cover the error (and then with great difficulty at impartiality).
(f) The proposal during the course of the trial to call Constable [C] as to events in the bedroom when the Defence had no earlier advice of his existence nor any details of what he could say (except an unsigned note given to the Defence during the trial).
(g) Evidence of one witness that a bundle of cannabis had been uplifted from a particular place on the property of the accused in respect of which there was no evidence of how it had got to that position.
(h) Evidence of inadequate procedures to secure the plants recovered from the Moore property and evidence of possible contamination with plants recovered elsewhere.
(i) And, of course, the evidence of Detective [D].
(j) There were other less important features (including disclosure).
All these maters when viewed collectively, particularly relating to the very unsatisfactory evidence of Detective [D], lead me to the clear conclusion they were of sufficient seriousness for the Court to exercise its control over Police procedures and order a stay of proceedings.
[20] We again recall the limits on our consideration in this appeal of the earlier rulings, but, as we have also indicated, issues considered in the course of the rulings, including that on abuse of process, arose directly in the costs application. We make three points about the reasons leading to the stay. The first is that the failure to disclose the note about the arrest and interview, an action which was in breach of Mr Moore’s rights, appears not to have prejudiced his rights at trial on the charges against him : there was independent evidence that he had been accorded his rights under the Bill of Rights and the statement which he made was essentially exculpatory in any event. Secondly, six of the ten deficiencies of police procedure listed by the Judge in the final paragraph of his judgment – subparas (a), (b) (c), (e), (g) and (h) – are matters which far from prejudicing the defence appear to weaken the prosecution case. Mr Moore did not ask to see the plants – subpara (d); and the other three – subparas (f), (i) and (j) – all relate to the events surrounding the arrest. Thirdly, the cases mentioned (para [18]) are all about actual or alleged violations of the rights of the accused which would have serious actual or potential effect on those rights. In this case, to return to the first point, the only violation – the non-disclosure – appears not to have had a prejudicial effect.
The judgment on costs
[21] With that background, we come to the judgment on costs. That judgment began by mentioning the history of the matter. It set out relevant provisions of the 1967 Act and extracts from relevant judgments and discussed a preliminary jursidictional argument that costs could not be ordered in respect of District Court trials. That last issue was not raised before us but it highlights one of a number of problems about the drafting of the legislation, matters that will no doubt be pursued by the Law Commission in its work on the Act : see Costs in Criminal Cases (November 1997 LCMP No 12). The substance of the judgment is concerned with four issues:
- Whether in exercise of the discretion under s5 there should be an award of costs to the applicant.
- If so, whether the award should be in accordance with the scale prescribed by the Costs in Criminal Cases Regulations 1987 or the award should exceed that scale.
- If the award should exceed the scale then the quantum of costs.
- And which agency should pay the costs.
[22] In considering the first issue the Judge said that while bearing in mind the overall discretion under s5(1), the criteria under s5(2) had to be examined. We set out s5 as a whole:
5. COSTS OF SUCCESSFUL DEFENDANT—
(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under section 167 of the Summary Proceedings Act 1957 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) of this section, 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 information was dismissed on a technical point:
(f) Whether the information 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 discharged or that any information charging him with an offence 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.
[23] The Judge examined the criteria in s5(2) and then considered the general discretion. In respect of criteria (a) and (b), he concluded, as we have already noted in part, that there was adequate evidence at the commencement of the proceedings to support a conviction and that the prosecution had acted in good faith.
[24] Criteria (c) and (d), relating to the investigation into the offence, took the Judge back into the matters he had discussed in his earlier s347 judgment (paras [7], [8] and [13]-[15] above), other than the failure to disclose the Detective’s notes to the defence. He found that the police had failed to investigate the circumstances in a reasonable and proper manner and to take steps to investigate evidence in five particular respects.
[25] Criterion (e) – whether the evidence as a whole would support a finding of guilty but the information was dismissed on a technical point – the Judge held had "no relevance”.
[26] Criterion (f) – whether the information was dismissed because the defendant established that he was not guilty – was also held irrelevant because it could not apply to a case tried on indictment.
[27] The Judge found in terms of the last criterion, para (g) – the behaviour of the defendant –that Mr Moore had acted responsibly and properly throughout.
[28] So far as the general discretion in s5(1) was concerned, the Judge emphasised that it was wide and unfettered. There was initially strong prima facie evidence. But aspects of the investigation were negligent and the police preparation for the trial was grossly inadequate in six respects – the failure of disclosure by Detective D, “a completely inaccurate brief of evidence” at depositions (relating to dried cannabis found at the back of the house), the belated proposal to call Constable C to give evidence about the interview, conflicting evidence relating to that interview, the quality of Detective D’s evidence, and other less important disclosures. Overall the situation was one of
a very poorly prepared case by the Police which at times in my view embarrassed the Crown prosecutor in his presentation in Court.
In the exercise of my overall discretion and having regard to the particular matters I have considered under the relevant criteria I am of the clear view the answer to issue 1 is that there should be an award of costs to the applicant.
[29] The Judge then went on to hold, in terms of s13(3) of the Act, that the award could exceed the scale fixed by the regulations, to fix the award, and to make the order under s7 that the Police (rather than the Department for Courts which is the usual source ) should make the payment. Because of the view that we take on the main issue, we need not go further into those three matters, except to note in respect of the first of them that the perceived inadequacy of the scale (last fixed in 1988) is not relevant to the determination under s13(3) of whether the case is of “special difficulty, complexity or importance”; and on the last that the Police cannot be required to make the payment except on the basis, fixed by s7(2), that they had acted negligently or in bad faith in bringing, continuing or conducting the prosecution. No such finding was made by the Judge at the relevant point in his judgment.
Should an award of costs have been made?
[30] We return to the Judge’s finding on the first issue that there should be an award of costs to the applicant. The discretion is conferred in very broad terms : the Court can order the payment of such sum as it thinks just and reasonable towards the costs of the defence to a defendant if
[31] The range of possible applicants emphasises the width of the discretion. It is for instance made explicit that a claimant who did not face the prospect of conviction only for technical reasons might nevertheless qualify for an order for costs. The amplitude of the discretion is underlined as well by
[32] That repeated emphasis on the width of the power warns against any narrowing of relevant considerations by reference, for instance, to the particular wording of parts of s5(2). Consider the preference given by the Judge to the opinion that para (f) – that the information was dismissed on a technical point – did not apply in the present case since the trial was on indictment (para [26] above); in that he said he followed R v Gillespie [1993] NZHC 450; (1993) 10 CRNZ 668 (and R v CD) and not R v T [1992] 3 NZLR 215. That reasoning might also explain the Judge’s unexplained ruling that para (e) – the information was dismissed on a technical point – was irrelevant. There is plainly a strong technical argument that, because the word “information” has the limited meaning once confirmed in the Acts Interpretation Act 1924 although no longer in the Interpretation Act 1999, the provision does not extend to trials on indictment. That argument gains support from the considerations, mentioned in CD and Gillespie, that “only a Magistrate or Justice sitting as they do without a jury could ever apply the criterion set forth in para (f)”; and that “it is often not possible to deduce the reasons which led a jury to an acquittal”. But it may be possible to deduce those reasons; in the present situation the acquittal follows a hearing and reasoned judgment by a Judge alone without any jury involvement; and Judges alone can now try indictable cases. Next, the particular use of “information” in paras (e) and (f) is perhaps to be explained by the wording of one of the predecessor provisions : Summary Proceedings Act 1957 s72(2). But much more significant is that the introductory words in subs (2), as well as the broad direction in subs (1), plainly may encompass matters that would have fallen within paras (e) and (f) but for any narrowing effect of the word “information”.
[33] That is to say, it is a mistake to try to force particular circumstances into one of the paragraphs of s5(2) or to find them excluded from consideration if they are in any event properly relevant to the exercise of the power; see eg Tipping J in R v T at 218 and the valuable reminder of Hardie Boys J in R v Margaritis (Christchurch T66/88, 14 July 1989) who, after referring to matters set out in s5, said that
All this really means [is] that the Court is to do what it thinks right in the particular case.
This is subject, of course, to the legislative limitations on what can be awarded (s13) and against whom (s7).
[34] With that reminder, we now do consider the Judge’s treatment of the circumstances listed in s5(2) : see eg R v Rust (1998) 15 CRNZ 644, 648. As already noted (para [23]), the Judge accepted both that there was adequate evidence at the commencement of the proceedings to support a conviction and that the prosecution acted in good faith (paras (a) and (b)). He held paras (e) and (f) – the only provisions in s5(2) other than (a) which relate to the substance of the prosecution – to be irrelevant. That left as the particular matters that favoured the application the failures of the police investigation (paras (c) and (d)) and Mr Moore’s responsible and proper behaviour (para (g)). As we have seen (para [28]), while the Judge’s discussion of the general power conferred by s5(1) began with brief references to the initial strong prima facie case, it then referred to the “negligence” of aspects of the investigation and emphasised in some detail six “grossly inadequate” aspects of the trial preparation; that discussion of failings led directly to the conclusion that the applicant should receive an award of costs.
[35] We do of course take into account the fact that the decision under appeal was given in exercise of a broad discretion. But, with respect, we do not see the Judge in his reasoning and particularly in his final assessment giving
There has not, we conclude, been a proper exercise of the broad power and discretion conferred by s5. We must now exercise it ourselves. Since we draw on our discussion of the earlier phases of the case as well as of the costs judgment, we can now deal briefly with the matter.
[36] The initial Crown case was a very strong one. While there were serious blunders in investigating and preparing the case, they disadvantaged the prosecution more than the defence. The evidence ruling and the s347 discharge are subject to substantial question. All of those matters and others considered in this judgment, particularly those touched upon in the last paragraph, bear on the exercise of the broad power conferred by s5 of the Costs in Criminal Cases Act. We conclude, weighing all those matters, that it is not just and reasonable that a sum be paid towards the respondent’s defence.
Result
[37] It follows that the appeal is allowed and the costs order set aside.
Solicitors
Crown Law Office, Wellington
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