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Hutson v R [2019] NZCA 550 (12 November 2019)

Last Updated: 19 November 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA
CA304/2019
[2019] NZCA 550



BETWEEN

MARK PHILIP HUTSON
Appellant


AND

THE QUEEN
Respondent

Court:

Brown, Simon France and Hinton JJ

Counsel:

F P Hogan for Appellant
M L Wong for Respondent

Judgment:
(On the papers)

12 November 2019 at 12.30 pm


JUDGMENT OF THE COURT

A The appeal is dismissed.

B The appellant is to pay costs to the respondent in the sum of $7,170.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] Mr Hutson was acquitted at trial on a charge of injuring with intent to cause grievous bodily harm and, by majority verdict, on an alternative charge of injuring with intent to injure. His application under s 5 of the Costs in Criminal Cases Act 1967 (the Act) for an order for payment of his costs in the sum of $23,920 was declined by Judge Menzies in the District Court at Hamilton.[1] Mr Hutson appeals against that decision.

Background

[2] The charges arose from what Mr Hogan for Mr Hutson described as a verbal/physical confrontation at a freedom camping layby on the Thames coastline between two elderly men, the complainant Mr Fenning and Mr Hutson. We consider that the circumstances of the incident together with the different perspectives of Mr Hutson, Mr Fenning and a witness, Justin Crow, are accurately captured in the following extract from the written submissions of Ms Wong for the Crown:

Prior to the incident giving rise to the charges against Mr Hutson, it appears he and Mr Fenning had argued briefly about Mr Fenning jogging through or on his property. Mr Hutson began to take photographs of Mr Fenning and his camper van, and Mr Fenning took exception to this. The men began to fight.

A witness, Justin Crow, gave a statement to the Police. He described punches being thrown. By the time Mr Crow reached the men, Mr Hutson was getting into the driver's seat of his car. Mr Crow said that as Mr Hutson was doing this, Mr Fenning resumed the fight and "started laying into [Mr Hutson]”. Mr Crow managed to pull Mr Fenning away and tried to talk to him, telling him to stop. He was at that time standing between Mr Fenning and Mr Hutson, with his back towards the latter.

Mr Crow said that Mr Fenning stopped being aggressive. He then saw a hammer coming over his left shoulder and strike Mr Fenning’s head. Mr Crow said that he did not think the strike was very hard “given the amount of damage that could have been done”, but he did not see the swing itself. Mr Crow then saw Mr Hutson strike Mr Fenning a “few times” more to the ribs. As he was doing it, Mr Crow heard Mr Hutson say “I’m just defending myself”.

In his statement (and subsequent Police interview), Mr Fenning said that after the initial fight Mr Hutson walked to his car. As he (Mr Fenning) turned to walk away he was hit in the head by the hammer. Mr Fenning said that he blocked the full force of the blow. He also said that he was hit in the ribs. He indicated in his Police interview that he was hit a number of times to the head. However, the medical examination revealed only a superficial graze to the top of his skull with no tenderness or swelling (he required two sutures) and bruising to his ribs.

Mr Fenning did not agree that Mr Crow intervened as Mr Crow had described in his statement. He thought Mr Crow had arrived only after Mr Hutson had struck him with the hammer. He agreed he had punched Mr Hutson in the driver's side of the car but said this was after the hammer had been used.

Mr Hutson's description was that after the first altercation, he was trying to go back to his car when Mr Fenning started to punch him from behind. Mr Hutson said that when he got into the car, Mr Fenning stepped back. Mr Hutson leaned over and picked up a hammer that was on the floor of his car. Mr Hutson said that when Mr Fenning saw the hammer in his hand he “back[ed] out”. Mr Hutson then hit Mr Fenning with the hammer once to the head. While Mr Hutson did not mention Mr Crow getting in between the men, he did recall there being others present at the time the assault with the hammer took place. Mr Hutson was clear throughout his interview that he considered his actions were necessary to defend himself from Mr Fenning.

At trial, Mr Crow's account remained substantially the same. Mr Fenning's evidence about the circumstances directly leading up to Mr Hutson's use of the hammer was also consistent with his statement. His evidence about the strike itself was somewhat discursive, but he asserted (as he did in his interview) that he did punch Mr Hutson while Mr Hutson was in the driver's side of his car after Mr Hutson had struck him once already with the hammer.[[2]]

Costs in criminal cases

[3] Section 5(1) provides that where a defendant is acquitted of an offence the court may order that he be paid such sum as it thinks just and reasonable towards the costs of his defence. Various factors which are required to be taken into account are specified in s 5(2):

(2) Without limiting or affecting the court’s discretion under subsection (1), 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 charge was dismissed on a technical point:

(f) whether the charge 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.

[4] There is no presumption for or against the granting of costs in any case.[3] No defendant shall be granted costs under s 5 by reason only of the fact that he has been acquitted or the charge dismissed or withdrawn.[4] Nor shall a defendant be refused costs by reason only of the fact that the proceedings were properly brought and continued.[5]

The District Court judgment

[5] After setting out s 5 and noting several relevant authorities,[6] the Judge detailed 14 matters relied upon by Mr Hutson in support of his application before proceeding to review his submissions and the Crown’s grounds of opposition.[7]
[6] With reference to considerations (a) and (b) in s 5(2), the Judge noted Mr Hutson’s primary argument was that he had raised the issue of self-defence at the outset. He contended that his claim of self-defence was sufficiently corroborated by both the medical evidence and the evidence of a witness, Mr Crow, to persuade the police that the defence of self‑defence was justified. No prosecution should have followed. The Judge did not accept that argument, considering that it was open to the police on the basis of the information then available to leave to the jury the assessment of the merits of the self‑defence argument.[8]
[7] The Judge then addressed in the context of factors (c) and (d) several matters relating to the decision to prosecute including pressure by the complainant and the loss of photographs taken following the incident. The Judge concluded in this way:

[35] Stepping back from the more specific issues discussed, I am not persuaded that the circumstances of this case warrant the exercise of the discretion to direct a payment towards the defendant’s costs. Certainly there were aspects of the investigation that are open to criticism, but they are not matters that either individually or collectively trigger the application of s 5 and justify an award for costs. While some shortcomings in the prosecution investigation have been identified they are not of sufficient substance to justify an award of costs on the grounds of lack of good faith or otherwise.

[36] Two further matters support that overall outcome while not being of great moment in themselves. The first was that the complainant did behave in Court in a manner that may not have enhanced his position in the eyes of the jury. In the same context, the complainant was accused of uttering profanities to the defendant in Court. Those are features that could not have been foreseen by the prosecution but may have influenced the jury. The second issue is the fact that the verdict in respect of the second charge was a majority verdict and not a unanimous one. Not all jurors were therefore persuaded in relation to the defence raised of self-defence.

Approach on appeal

[8] In R v Reid the Supreme Court confirmed that the decision to award or to decline costs under the Act involves the exercise of a broad discretion.[9] What might generally be described as an error of principle by the Judge must be established if the exercise of a discretion is to be challenged successfully on appeal.[10] Subsequently in V v R this Court observed that the Supreme Court no doubt had in mind the discussion in Kacem v Bashir in relation to appeals against discretionary decisions.[11]
[9] In Kacem v Bashir the Supreme Court confirmed that the criteria for a successful appeal against a discretionary decision are:[12]

There was no dispute that the present appeal should be approached on that footing.

[10] The Supreme Court in Reid also made clear that questions of the weight to be given to any particular factor in s 5(2) do not engage matters of principle affecting the validity of the statutory discretion.[13] It also emphasised that “an appellate court cannot hope to capture the ephemeral but significant impressions which inform the assessments and discretions of the trial judge”.[14]

Grounds of appeal

[11] A document annexed to the notice of appeal and described as an outline of the appeal grounds stated:
  1. The investigation and prosecution of this case was not conducted in a thorough, unbiased, competent and complete manner.
  2. The Learned District Court Judge either misdirected himself on the applicable legal principles or set a standard for approaching the issue that did not accord with established legal principles.
  3. The Learned District Court Judge misdirected himself on significant factual and procedural issues.
  4. As to be further set out in detailed submissions to be advanced by my lawyer.

[12] In his written submissions Mr Hogan first focused on an alleged error of principle as to the applicable legal standard for the exercise of the costs jurisdiction. He then concentrated on four issues described as follows:
  1. The missing photos of Appellant HUTSON — wrongly determined relevant factual issue.
  2. The mischaracterisation of the unchallenged medical evidence — a mixture of wrongly determined factual/legal issues.
  3. The significance of pre-interview disclosure of the Crow statement to complainant FENNING — wrongly determined factual issue.
  4. The lack of veracity of complainant FENNING — Trial Judge did not adequately address veracity issues raised by Appellant.

[13] Then in a written submission filed in reply Mr Hogan submitted that an award of costs was fully justified in this case given what was described as the admitted “bad behaviour” of Mr Fenning.

Alleged error of principle

[14] Mr Hogan commenced by observing that the Judge failed to refer to what was said to be the leading case, a decision of this Court in R v Connolly.[15] He identified five relevant principles to be drawn from Connolly as follows:

He submitted that the circumstances of this appeal brought principles (a), (b), (c) and (e) into clear focus.

[15] We would first observe that we do not consider that this Court’s decision in Connolly is the leading case on the Act. It was a majority judgment of a Divisional Court in which Ellen France J (presiding) dissented. The decision was reversed by the Supreme Court in Reid.[16]
[16] In any event the five principles to which Mr Hogan referred were simply the majority’s summary of factors which the Law Commission in its 2000 report Costs in Criminal Cases had recommended as relevant in determining costs applications by successful defendants.[17]
[17] Mr Hogan proceeded to refer to the following observation by the Judge at [35] of the judgment but with the italicised words omitted:

Certainly there were aspects of the investigation that are open to criticism, but they are not matters that either individually or collectively trigger the application of s 5 and justify an award for costs. While some shortcomings in the prosecution investigation have been identified they are not of sufficient substance to justify an award of costs on the grounds of lack of good faith or otherwise.

[18] Emphasising that lack of good faith is not a precondition to the award of costs on what he described as “the Connolly principles”, Mr Hogan contended that in articulating the legal standard as “lack of good faith or otherwise” the Judge had set the bar too high. Invoking Connolly he submitted that Mr Hutson’s case satisfied two grounds:
[19] We recognise that in R v CD Somers J considered s 5(2)(a) to be of limited importance because most (if not all) Crown prosecutions are bona fide.[18] However we do not consider that any criticism can be made of the Judge for addressing the good faith issue given that Mr Hutson’s application was expressly advanced on the footing that good faith could not be presumed given the criticisms levelled at the prosecution’s decision making process. Whereas the submission in this Court was for the most part couched in terms of negligence and careless performance[19] in the District Court there was reference to the circumstances tending to undermine any police claim of an “open and unbiased” investigation having been undertaken.[20]
[20] In any event the Judge’s conclusion was that the shortcomings in the prosecution investigation did not justify an award on grounds of either lack of good faith “or otherwise”. We do not consider that there was any error in principle in the manner in which the Judge evaluated the costs application.

Missing photographs of Mr Hutson — failure to take into account relevant matter

[21] A police constable who attended at the incident took some photographs on his mobile phone. The constable in question left the police and it does not appear that the photographs were ever downloaded. An inquiry as to their whereabouts was not undertaken until close to the trial.[21] The Judge’s conclusion with reference to the missing photographs stated:

[33] The Crown acknowledged that the loss of photographs was regrettable. Inquiry about the photographs was somewhat belated and reflected an approach to the investigation that was clearly less than optimum as far as that issue was concerned. It would have to be said in that context that that particular aspect of the investigation was not conducted in a reasonable and proper manner. There should have been procedures in place for the prompt downloading and recording of the photographs from the scene and the proper retention of that evidence in the circumstances of the constable's departure from the police prior to trial. Having not seen the photographs, there can only be speculation as to what precisely they revealed and what assistance they may have been in trial. Obviously they are likely to have shown visible signs of injury and would have been helpful in that regard. The lack of the photographs is however offset to a degree by the medical examination that was undertaken reasonably promptly following the events. It is likely therefore that the photographs would not have added a great deal to the medical evidence that was available and unchallenged.

[22] It was common ground between the parties in this Court that the reference in the penultimate sentence to a medical examination suggests that the Judge erroneously believed that the lost photographs were of Mr Fenning, who was medically examined at Thames Hospital, not of Mr Hutson. Indeed Mr Hogan made the further point that the photographs were not “from the scene” but rather were taken when Mr Hutson was being interviewed at the Thames Police Station.
[23] Mr Hogan submitted that the failure by the Judge to grasp an important factual issue tended to undermine the confidence the Court can have in the overall assessment undertaken by the Judge. The loss of the Hutson photographs was said to be compounded by the police’s failure to notice the loss. He submitted that the compounded failure justified the submission that the police performance was lackadaisical to the point of negligence. The Judge for no apparent reason having failed to understand the point, the asserted consequence was that a relevant matter was not considered by him.
[24] In response Ms Wong submitted that the error concerning the person photographed was not significant. The fact that the photographs were not retained could not have had a material impact on the decision to prosecute because on the evidence available at the pre-charge stage the two men had exchanged blows. The issue of whether Mr Hutson’s actions were retaliatory or defensive was unaffected by the injuries he might have sustained.
[25] We agree with Ms Wong that there is no meaningful causative link between the lost photographs of Mr Hutson, the charges which were brought and Mr Hutson’s acquittal. The Judge did have regard to the fact that the photographs were lost. However the absence of the photographs cannot have been material in Mr Hutson’s acquittal. In those circumstances the Judge’s apparent confusion as to the identity of the person in the missing photographs cannot assume the status of a relevant consideration for the purposes of the threshold for challenge to a discretionary decision.

Mischaracterisation of medical evidence — failure to take into account relevant matter

[26] Mr Hogan explained that one of the central points advanced by the defence was that the police had failed to assess the available evidence in a dispassionate, fair and measured manner. A proper assessment would have concluded that there was no justification to proceed with the charge against Mr Hutson in light of the available medical evidence which corroborated a claim of self-defence. The central plank of that corroboration was to be found in the medical evidence admitted as agreed facts pursuant to s 9 of the Evidence Act 2006.
[27] Having recited that evidence the Judge observed:

[24] When considered in the context of the complainant’s evidence of four or five full forced blows to his head with a hammer, greater injury might have been expected. On the face of it therefore, the medical evidence would tend to undermine support for the complainant’s account. However assessment of medical injury in this context is not an exact science.

[28] Mr Hogan submitted that it was unfair and unprincipled by the Judge to seek to either diminish or displace the unchallenged medical opinion by the comment in the final sentence in the quoted passage. The argument advanced was that the medical evidence was entirely consistent with Mr Hutson’s account (namely a single low force blow to the complainant’s head using a hammer administered in self-defence) and completely inconsistent with the claim by the complainant of four or five full force blows.
[29] However the difference between an admitted single blow to the head with a hammer and a number of blows would be unlikely to be determinative of the issue of self‑defence. As the Judge proceeded to note immediately following the discussion of the medical injury:

[25] The evidence of Mr Crow in the form of his statement, tended to corroborate elements of the accounts by both the complainant and the defendant. Mr Crow for example confirmed that there was an initial confrontation between the two in which the complainant was the primary aggressor. However, his evidence was clearly open to the interpretation that as a result of Mr Crow’s own intervention, there was a pause or gap and by the time Mr Crow saw the hammer being swung by the defendant, the complainant had ceased physical engagement and indeed was starting to walk away. Mr Crow’s evidence is therefore clearly open to the interpretation that at the time the first blow was struck with the hammer by the defendant, the immediate threat that may have justified self-defence, had come to an end. It was therefore open to the police to accept the interpretation subsequently advanced by the Crown at trial, that the defendant’s actions were retaliatory and not in self-defence.

[30] In our view it is unrealistic to seek to isolate the various factors which the Judge considered in evaluating the decision to proceed with the prosecution of Mr Hutson. It is clearly apparent that the Judge did have regard to the medical evidence. However having regard to the further material to which the Judge referred, the medical evidence could not be determinative. The attempt to characterise the Judge’s analysis as a failure to take into account a relevant matter is misconceived.

Disclosure of the Crow statement to the complainant before his video interview — failure of Judge to properly assess

[31] The basis for this complaint was the disclosure of Mr Crow’s statement by the police to Mr Fenning prior to his evidential video interview.
[32] Mr Hogan prefaced his argument by explaining the defence contention to be that the original officer in charge of the case, Constable Young, had determined that no charge would be brought, at least against Mr Hutson. Ms Wong countered that the Crown has never accepted that Constable Young made a decision not to charge Mr Hutson and that such decision was reversed by Sergeant Hill, who later took over the case. The Crown’s position was that the preliminary view reached was that both Mr Hutson and Mr Fenning should be charged.
[33] Mr Hogan then submitted that in the circumstances of the charging decision process it was essential that the video interview of Mr Fenning be conducted in an exemplary manner. By providing the Crow statement to Mr Fenning the police deprived themselves of a powerful interviewing and investigative tool. That departure from the usual practice was said to warrant the observation that the police were at least careless and possibly biased in their approach to this crucial interview process. As Mr Hogan put it, the police essentially handed to Mr Fenning a “free pass” or gave him a “home run”.
[34] In response Ms Wong accepted that the disclosure prior to interview was unusual. However Mr Fenning did not appear to have augmented his account having reviewed the Crow statement. Indeed he disagreed with much of it. She submitted that the Judge was correct to view the provision of the statement as not having resulted in substantive unfairness to Mr Hutson.
[35] This aspect of the appeal is not tied to any of the four criteria for a successful appeal against a discretionary decision. Rather the complaint is made of a “failure of Judge to properly assess”[22] and, in the identification of the issue, as an erroneous determination of a factual issue.[23] While we do not consider that there is any basis for criticism of the Judge’s conclusion, the complaint itself is not one that can provide a basis for challenge to the exercise of a discretion.

Veracity of Mr Fenning

[36] Mr Hogan introduced this topic in this manner:
  1. The measured but justified submission is that Mr Fenning by his actions and utterances including on the night, later dealings with the police and in giving evidence his grasp of reality was shown, at best, to be “incomplete”.

[37] He then proceeded to address what were described as three examples, namely Mr Fenning’s account of the incident, his dealings with the police and his behaviour at trial. We treat Mr Hogan’s reply submission about Mr Fenning’s “bad behaviour” as an aspect of this ground of appeal.
[38] In response Ms Wong submitted that Mr Fenning’s credibility did not rationally bear on the issue of costs given the decision to prosecute would have been justified first on the basis of independent evidence suggesting the assault was retaliatory and second on the ground that even a single purportedly controlled blow with a hammer to the head of an unarmed man was disproportionate.
[39] The short answer is that the attack on Mr Fenning’s credibility does not constitute a ground on which to challenge a discretionary decision. This aspect of the appeal is also misconceived.
[40] In view of our conclusions we necessarily decline Mr Hogan’s invitation to undertake our own fresh evaluation of Mr Hutson’s costs application.

Result

[41] The appeal is dismissed.
[42] The appellant is to pay costs to the respondent in the sum of $7,170.





Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Hutson [2009] NZDC 9991 [District Court decision].

[2] Mr Hutson did not give evidence at trial.

[3] Costs in Criminal Cases Act 1967, s 5(3).

[4] Section 5(4).

[5] Section 5(5).

[6] Cavanagh v Police [2013] NZHC 2232; R v AB [1974] 2 NZLR 425 (SC); R v Gillespie [1993] NZHC 450; (1993) 10 CRNZ 668 (HC) and R v Margaritis HC Christchurch T66/88, 14 July 1989.

[7] District Court decision, above n 1, at [12].

[8] At [27].

[9] R v Reid [2007] NZSC 90, [2008] 1 NZLR 575.

[10] At [23].

[11] V (CA428/2012) v R [2013] NZCA 211 at [21]; referring to Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

[12] Kacem v Bashir, above n 11, at [32].

[13] R v Reid, above n 9, at [21].

[14] At [23].

[15] R v Connolly [2006] NZCA 338; (2007) 23 NZTC 21,172 (CA).

[16] R v Reid, above n 9, at [25]. The judgment at first instance was restored: R v Connolly (2006) 22 NZTC 19,844 (HC).

[17] R v Connolly, above n 15, at [22]; and Law Commission Costs in Criminal Cases NZLC R60, 2000) at 8.

[18] R v CD [1976] 1 NZLR 436 (SC) at 437.

[19] Although there was also reference to “improper motive”. See also the contention of “possible” bias at [33] below.

[20] See District Court decision, above n 1, at [12(h)].

[21] At [12(n)] and [16].

[22] The heading above is taken from the submissions of Mr Hutson.

[23] See [12] above.

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