The Queen v MacKay [2007] NZCA 316 (27 July 2007)

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The Queen v MacKay [2007] NZCA 316 (27 July 2007)

Last Updated: 4 June 2008

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 United Kingdom have noted that it is inappropriate for costs to be used as a means of punishing a defendant for having elected to go to trial. (See generally Hall Sentencing, App. V, and Current Sentencing Practice, para. J6-2G.) Again, of course, a substantial award of costs in offending of this nature is a rare event because most offenders lack funds. We think the better course to follow is to limit the imposition of costs to those cases where the defendant has deliberately prolonged proceedings or committed some sort of misconduct in the course of the trial. There is no suggestion that is so in the present case.

[8] There is no suggestion in this case that the appellant deliberately prolonged proceedings or committed any misconduct in the course of the trial. In our view the award of costs was wrong in principle. The appeal will be allowed and the order for payment of costs quashed.

[9] The Crown submitted that in disposing of this appeal we could, pursuant to s 379CA(2)(d) of the Crimes Act 1961, consider whether there were grounds to make an order for forfeiture under s 32(3) of the Misuse of Drugs Act 1975 and if we were so satisfied, to make such an order. In the alternative, the Crown invited us to grant an extension of time allowing it to appeal against the District Court Judge's refusal to grant the forfeiture order under s 32.

[10] We do not consider that s 379CA can be used as the Crown maintains. The section, as relevant, provides:

379CA Appeal against order in respect of costs

(2) The Court of Appeal [or The Supreme Court] may— . . . (d) Make any other order it considers appropriate.

[11] Mr Trainor's appeal was against an order under the Costs in Criminal Cases Act 1967. The order sought by the Crown is under the Misuse of Drugs Act 1975. Although about the same subject matter (the $6,000), the forfeiture order is pursuant to a different statutory regime. Section 379CA is concerned exclusively with appeal

rights with respect to costs orders and subs (d) must be read with that in mind. We reject the Crown's invitation to invoke s 379CA.

[12] The alternative Crown submission is that we could give it an extension of time to appeal from the District Court Judge's refusal to make a forfeiture order. We consider the background, the Crown application for extension and the merits of the proposed appeal. We turn firstly to the sentencing.

[13] At sentencing the Crown sought an order for forfeiture of the whole of the $6,000 pursuant to s 32 of the Misuse of Drugs Act 1975. In their written submissions they said:

[9] Pursuant to s 32(3) Misuse of Drugs Act 1975 if the Court is satisfied that money found in the possession of the Prisoner was received by him in the course of or consequent upon the commission of that offence, or was in his possession for the purpose of facilitating the commission of an offence against the Misuse of Drugs Act the Court may order that the money be forfeited to the Crown. The Crown invites the Court to consider this option.

[14] As to this the Judge said:

[10] The Court may under s32(3), if satisfied that the money found in your possession was received by you in the course of or consequent upon the commission of that offence, or that it was in your possession for the purposes of facilitating the commission of an offence, order that the money be forfeited.

[11] I do not intend to embark on an exercise whereby I need to proportion or form a view as to how much was earned from the pokies, and therefore how much was attributed to the sale of cannabis. I do not have that evidence before me, nor have I been assisted by counsel in that respect. It is clear however that in order to win money from the pokies that you have to put some into the machines as well.

[15] We have proceeded, for the purpose of this appeal, on the basis that the Judge refused the Crown application for forfeiture, but we acknowledge the lack of a clear ruling in the sentencing notes. We also note that the Crown at this appeal accepted that the only basis upon which the Judge could have made an order for forfeiture of the money was a finding that the money was in the possession of Mr MacKay for the purpose of facilitating the commission of an offence against s 6 of the Misuse of Drugs Act 1975. That is, the $6,000 was a float for the future purchase of cannabis

to on-sell. The District Court Judge's brief consideration of s 32 in his sentencing notes focused only on how much of the $6,000 might be attributable to the previous sale of cannabis. This, the Crown acknowledge, could not have been a basis for forfeiture.

Extension of time

[16] The appellant was sentenced on 5 April 2007. On 3 May the time for filing the appeal as of right expired (s 388(1) Crimes Act 1961). The first the appellant became aware the Crown wished to challenge the refusal to order forfeiture was when he received the Crown's submissions on 12 June 2007 in response to this appeal. Counsel for the Crown candidly accepted that it had not occurred to the Crown it may need to challenge the Judge's refusal to order forfeiture until preparation for its submissions on the appeal was undertaken. At best for the Crown, therefore, the appellant had notice of the Crown's intention to challenge the refusal to make a forfeiture order by 12 June, some five weeks beyond the expiry of time to appeal.

[17] Section 388(2) permits an extension of time for filing an appeal. This Court has previously observed that the interests of justice is the pivotal factor in applications for extension of time. Particular relevant considerations include:

(i) The strength of the proposed appeal;

(ii) The length of the delay and reasons for the delay;

(iii) Whether there is any prejudice to the opposing party;

R v Knight [1998] 1 NZLR 583 (CA) ; R v W CA 136/04 30 September 2004.

[18] This Court has also typically been less accommodating in giving an extension of time for a Crown appeal: R v Midwood CA76/98 23 June 1998; Solicitor-General v Steinmetz CA384/03 15 March 2004 (10 days out of time too long); R v Leger CA22/01 17 May 2001 (35 days too long).

[19] As to the strength of the proposed appeal, it is difficult to fully assess the merits of the Crown arguments. This is because the Crown application for forfeiture is based on the proposition that the $6,000 was intended to be used as a fund to support future cannabis dealing. In part, the Crown bases that assertion on inferences it says can be drawn from the appellant's past conduct as revealed in the evidence at trial. At sentencing, the Crown did not identify that this was the basis on which it sought forfeiture. The sentencing Judge was not aware this was the basis on which forfeiture was sought. Given forfeiture is being sought on a prediction of future behaviour, we consider the appellant would be entitled to give, or to call evidence relevant to his intentions with respect to the $6,000.

[20] Mr La Hood responsibly accepted that if we concluded the appellant had to be given the opportunity of giving or calling evidence on his own behalf on forfeiture, the Crown's application for extension of time could not succeed. The Crown did not wish to ask that this Court hear this evidence. Nor did the Crown consider it appropriate, even if we had jurisdiction, for this Court to send the matter back to the District Court for rehearing.

[21] Given these circumstances, together with a delay of 35 days without justifiable excuse, we are satisfied the proper course is to refuse an extension of time for the Crown to bring this appeal.

Solicitors:

Crown Law, Wellington