[1] This Court’s judgment of 11 June 2009 dismissed the appellant’s appeal against the decision of the District Court, given on 2 October 2008, which declined the appellant’s application for costs under the Costs in Criminal Cases Act 1967 (“the Act”). At [100] of our judgment we reserved leave for the Crown, if it sought costs on the appeal, to file a memorandum, with the appellant to file in response.
[2] By memorandum dated 22 June 2009, the Crown seeks costs of $6,004.50 plus GST under s 8(1) of the Act. The Crown acknowledges that the schedule to the Costs in Criminal Cases Regulations 1987 limits costs to $226, except where it is appropriate to make an award in excess of scale because of the complexity and importance of the case. The Crown submits this case justifies a contribution towards its costs in excess of scale.
[3] The appellant submits:

(a) there is no presumption for or against costs and there must be good reasons for a discretionary award: R v Leitch CA 195/97 22 December 1997; R v Rust [1998] 3 NZLR 159 (CA).

(b) there is no justification for an award of costs, noting that the Crown’s memorandum does not address the first issue as to why the Court should exercise its discretion to award costs at all.

(c) there are no particular features of this appeal that would justify an award of costs; analysis of a lengthy transcript and reference to a large number of exhibits relied on by the Crown, in support of its claim to an award of costs above scale, reflect only the fundamental requirement of counsel to read the case on appeal and to consider any exhibits referred to. While this requirement is time consuming, it does not involve special difficulty, complexity or importance in terms of s 13(3) of the Act (which provides for the Court to make an order for payment of costs in excess of 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).

[4] Section 8(1) of the Act provides a general discretion for the Court to order costs as it thinks fit on an appeal under the Crimes Act 1961. However, subss (2) and (3) of s 8 suggest that the discretion under subsection (1) may be referable to the substantive appeal rather than an appeal against a costs judgment.
[5] Be that as it may, whether the discretion of the Court arises under s 8(1) or under the Court’s general discretion in relation to costs, we are satisfied that no award of costs should be made to the Crown in this case.
[6] The appellant was successful at trial, being acquitted by the jury of two charges under s 44(1)(a) of the Civil Aviation Act 1990. He was subsequently declined costs in the District Court. But his appeal against the District Court decision declining him costs was neither frivolous nor vexatious in terms of s 8(5) of the Act. While we held in our judgment of 4 May 2009 that the District Court Judge in declining to award costs to the appellant, had addressed all relevant circumstances, including those in s 5 of the Act, and had not taken into account irrelevant matters, the District Court judgment adopted a global approach to the s 5 factors, and a rather colourful mode of expression, which made the decision to appeal understandable.
[7] We agree with the appellant’s submissions that the case did not involve special difficulty, complexity and importance. We consider that costs should lie as they fall.
[8] The Crown’s application for costs is accordingly dismissed.

Solicitors:
Jackson Reeves, Tauranga for Appellant
Crown Law Office, Wellington

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