The Queen v King [2008] NZCA 140 (30 May 2008)

Last Updated: 9 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA207/2007 [2008] NZCA 140THE QUEEN

v

SHAUN ANTHONY KING

Court: William Young P, Chambers and Robertson JJ

Counsel: G J X McCoy and K H Cook for Mr King
D B Collins QC and B M Stanaway for Crown

Judgment: 30 May 2008 at 11.30 am

(On the papers)

JUDGMENT OF THE COURT

The application for costs is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1] On 14 February 2008, this Court heard a number of appeals arising from a criminal trial in Christchurch. Of relevance to the current application for costs, we delivered a judgment on 10 April 2008 on the case stated by the Crown on three questions of law.
[2] In submissions presented during the substantive hearing of that matter, one of the respondents (Mr King) sought orders that:

[The] Appellant pay the Respondent’s costs under s 8(6) Costs in Criminal Cases Act 1964 (the respondent not being legally aided). It appears that the maximum award of costs is $226, but if the Court certifies for second counsel, which is sought, Mr K H Cook appeared at trial and argued the jury-vetting point before Fogarty J, an additional sum of $113 would be payable. Reasonable travelling, accommodation and disbursements should also be ordered.

[3] Notwithstanding this written submission of 24 April 2008, Mr King’s counsel subsequently sought an order for “$5,000 to cover both counsel” plus reasonable disbursements because, under s 13(3) of the Costs in Criminal Cases Act 1967, it was a case of “special difficulty, complexity or importance”.
[4] No detail was provided of actual costs incurred, but the sum is sought on the basis that it is “believed not to be dissimilar to the amount recoverable by one Counsel in the appeal, who was legally-aided”.
[5] The application is opposed by the Crown for the following reasons:

(a) while the appeal involved an important point of law, and was accordingly the subject of very full submissions from the Crown for the purpose of clarifying the legal position, it did not involve any personal jeopardy to Mr King;

(b) another experienced criminal counsel presented the respondent’s case on appeal pursuant to a grant of legal aid for that purpose, in accordance with the expectations of the Court as to how representation and funding would be managed;
(c) there was therefore no need for trial counsel for Mr King or, for that matter, senior counsel who had not been involved at trial, to appear; and
(d) in any event, the respondent has not provided sufficient information to enable assessment of the reasonableness of the figure sought in relation to costs actually incurred.
[6] The jurisdiction under the Costs in Criminal Cases Act is wide. There is no presumption in favour of costs following the event, but any applicant must show good reason for the Court to exercise a discretion to grant an award in the applicant’s favour: R v Rust [1998] 3 NZLR 159 (CA).
[7] The Crown succeeded on all three points reserved in this case.
[8] Mr King had been discharged under s 347 of the Crimes Act 1961 during the course of trial and therefore he was not in any personal jeopardy as a result of this appeal.
[9] In a Minute issued on 11 October 2007, O’Regan J noted that “it would seem sensible” for one of the counsel who would be participating in the individual conviction/sentence appeals, which were to be heard at the same time, to respond to the Crown on these issues.
[10] Mr Rapley, who had been trial counsel for Mr Stevens (who was also discharged) together with Mr Cook for Mr King (and eventually also Mr McCoy), chose to be involved.
[11] We are not satisfied that there is any basis for an order to be made under the Act in favour of Mr King in these circumstances.
[12] The position advanced by and on behalf of Mr King did not find favour in this Court.
[13] There was already a contradictor to the Crown’s position who had been granted a special award of legal aid to cover the case. Representation by Mr King was therefore not necessary for the proper conduct of the appeal.
[14] The Solicitor-General properly notes that there is no information available about the costs which Mr King incurred. It would be surprising if he became liable for legal fees in pursuing an argument in which he had no personal interest.
[15] In all the circumstances, we decline the application for costs.

Solicitors:
Crown Law Office, Wellington