The Queen v Afato [2008] NZCA 208 (4 July 2008)

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The Queen v Afato [2008] NZCA 208 (4 July 2008)

Last Updated: 9 July 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/2008

[2008] NZCA 208

THE QUEEN

v

FAY AFATO

Hearing: 25 June 2008

Court: William Young P, Gendall and Ronald Young JJ

Counsel: B A Gibson for Appellant
M F Laracy for Crown

Judgment: 4 July 2008 at 4 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B Additional costs are awarded to the appellant of $20,000.

REASONS

(Given by Ronald Young J)

Introduction

[1] In August 2005 Travelex had $390,000 stolen in a burglary of its Wellington Airport premises. The burglar(s) used a key and security codes to open external and internal doors and to open the safe.
[2] Suspicion fell on the appellant, an employee of Travelex, when a closed circuit television tape recording showed the appellant and another employee apparently turning off the recorder before the burglary, and when the police discovered some of the security codes used by the burglar(s) were the appellant’s. The appellant was charged with burglary. She denied the charges. At trial, the Judge discharged the appellant pursuant to s 347 of the Crimes Act 1961 at the conclusion of the Crown’s case.
[3] Post acquittal, the appellant sought costs pursuant to the Costs in Criminal Cases Act 1967. She was awarded $8,072.80. The appellant says the Judge, in his costs decision:

(i) Failed to give any weight to the fact the appellant had established she was not guilty (s 5(2)(f));

(ii) Failed to take into account all of the circumstances of the case when assessing quantum of costs (s 5(2)(g)); and
(iii) Failed to take into account that a proper police enquiry may have resulted in either the appellant not being charged or the prosecution not continuing the case against the appellant (s 5(2)(a) - (d)).
[4] As a result, the appellant says the quantum of costs awarded was inadequate.

Background facts

[5] After the discovery of the burglary at Travelex, the police concluded that it had been committed by someone who had been, or was, working for the company. Whoever entered the premises had a key and security codes to get access to the premises and to the safe containing the money. Part of the security system at the premises was a camera with a video recorder, which covered the safe and other parts of the premises. During their investigation the police concluded that the appellant had turned off the video recorder twelve hours before the burglary and that the burglar(s) knew the recorder was off when he entered the premises. This, together with the use of the appellant’s security codes by the burglar(s), led the police to charge the appellant.
[6] The appellant, when interviewed by the police, denied any involvement in the burglary and denied she had turned off the video recorder. She hired a private detective. His investigations revealed that if the whole tape was viewed it was clear the video recorder had not been turned off as the police thought. This information was provided by the appellant to the Crown at least four weeks prior to trial.
[7] The prosecution accepted that the private detective was correct and that the recorder had been turned off immediately before the burglary. However, the Crown elected to proceed to trial. At trial, it became clear that the security codes were not secure and were available to other staff members. The key used by the burglar(s) to gain access to the premises appeared to have been one that was lost some time ago by another staff member.

Discussion

[8] Section 5 of the Costs in Criminal Cases Act 1967 provides as follows:

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.

[9] The appellant says the Judge failed to take into account the fact that the appellant established she was not guilty. The Judge, when considering s 5(2)(f), said, “This provision does not apply”.
[10] We accept that s 5(2)(f) is expressly concerned with the dismissal of an information. Here, the appellant was being tried on indictment. However, the fact an accused establishes they are not guilty is a relevant factor for a Judge to take into account in a costs application where an applicant has been tried on indictment: Solicitor-General v Moore [2000] 1 NZLR 533 at [32].
[11] It was the appellant’s investigation before trial, and cross-examination at trial, that convinced the Judge to acquit the appellant. The pre-trial investigation by the appellant established that her actions in relation to the security camera were not suspicious. At trial, she established that the key used to enter the premises was one that had been lost some time before, and that a number of staff members had access to the security codes. In those circumstances, it was through her investigation and questioning of the witnesses that the appellant established she was not guilty. This is not to say the appellant established her innocence. As the Judge said, the appellant remained a “possible suspect.” However, through her efforts she undermined a fundamental plank of the Crown case. We consider that the Judge should have taken that fact into account in assessing the quantum of costs to be awarded.
[12] Grounds (ii) and (iii) of this appeal can be considered together. As to these factors the Judge said:

[18] In my view, due to the flaws in the way the initial investigation was conducted, and the way in which the proceedings were continued in the face of clear evidence that it was not the applicant who turned off the video recorder; that the security of the codes involved was compromised; the disciplining of a senior staff member of the business for such compromising of the codes; the evidence that a key that had formerly been stolen, then was probably, or possibly, used for entry into the premises; the abrupt departure of the former employee who had by all accounts some financial issues with the business, mean that, in my view, an order for costs is appropriate. Proper investigation and consideration of the matters that were plainly available to be seen by the prosecution either prior to the commencement of the proceedings or at least during the continuation of proceedings mean that the proceedings were not continued appropriately.

[19] In my view, the investigation undertaken by the applicant was of a matter that should have been obvious to the police, and the police should have undertaken those researches.

[20] The discovery of the truth by the applicant’s witness was a material fact that has a significant bearing on the position of the case.

[21] If the prosecution had done the work necessary to discover the true position, they would in my view have looked at the overall case differently. As it was the prosecution did not because by the time the issue was raised, the prosecution had a mindset that said the applicant was the person responsible. The prosecution then proceeded with the case in order to try and establish their theory rather than to establish who was responsible for the crime.

[22] I therefore consider that some costs are due to the applicant. I have to recognise that the applicant was still a possible suspect, and her codes were among those used to commit the crime. It is my view that the applicant should be paid the costs she spent establishing the true position relating to the video recorder. These costs are said to be those of [the private investigator], but there may be others I cannot readily identify from the material before me if the parties cannot agree on quantum.

[13] The Judge’s focus in his award of costs was on reimbursing the appellant for the private investigator costs. We think this approach was too narrow. The defence had effectively provided a rational explanation for the prosecution case. A proper police investigation would have revealed there was not sufficient evidence to charge the appellant. Given that conclusion, a costs award was justified beyond reimbursing the private investigator’s costs and legal fees relating to the security tape investigation.
[14] Section 5(1) allows an award of a sum the Court considers “just and reasonable”, subject to any regulations made under the Act. Regulations were promulgated in 1987 providing for a scale of costs (last fixed in 1988).
[15] Section 13(3) provides as follows:

13 Regulations

...

(3) Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

[16] The appellant submits that the scale restrictions do not apply to indictable offences tried in the District Court. In Part 2 of the schedule to the Regulations the only reference is to trials on indictment in the High Court. The appellant therefore submits that she is entitled to be paid such a sum as the Court thinks just and reasonable (s 5(1)) rather than scale costs as set out in the regulations.
[17] We reject that submission. We are satisfied the Act and the Regulations are intended to comprehensively define the circumstances under which costs may be ordered in criminal cases and their quantum. Section 5(1) anticipates that the “just and reasonable” assessment would only apply if regulations prescribing a scale had not been made. However, there have been regulations made under the Act. We are satisfied the Regulations were intended to apply to all trials on indictment, as far as costs are concerned, irrespective of the Court in which they were tried. There is no rational basis to distinguish between trials on indictment in the High Court and in the District Court.
[18] Alternatively, if the just and reasonable principle in s 5(1) was to be the sole criteria for setting costs for criminal trials on indictment in the District Court, there would be a strong argument that it would be just and reasonable to follow the scale costs provided for in the High Court. We consider Parliament clearly intended that scale costs should only be exceeded if the grounds identified in s 13(3) could be met.
[19] We now turn, therefore, to the question of whether “having regard to the special difficulty, complexity, or importance of the case” scale costs should be exceeded here (s 13(3)). We are satisfied this is such a case.
[20] The case involved a very substantial burglary of commercial premises. A large amount of money was stolen. Significant planning had obviously gone into the crime. The investigation had some complexity, involving an analysis of security footage, multiple security codes and the use of a key to enter the premises. The investigation understandably focused on those previously or presently employed by Travelex. All staff denied involvement in the crime and so the investigation was inevitably going to require skilled detective work. We are satisfied in combination these factors justify an award of costs above scale.
[21] However, indemnity costs are not justified. Some relativity to the scale must be kept. We consider a sum of $20,000, in addition to the costs already awarded by the Judge, properly meets the ends of justice. This is slightly less than 30 per cent of the appellant’s total fees.
[22] In summary, therefore, the appeal is allowed. The quantum of costs is increased by the payment of a further sum of $20,000 to the appellant.

Solicitors:
Crown Law Office, Wellington