Allison v R [2021] NZCA 140 (29 April 2021)

Last Updated: 4 May 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA611/2020 [2021] NZCA 140

	BETWEEN	EOIN MURRAY ALLISON Applicant
	AND	THE QUEEN Respondent

Hearing:	18 March 2021
Court:	French, Ellis and Muir JJ
Counsel:	W J Wright and W van Harselaar for Applicant R K Thomson for Respondent
Judgment:	29 April 2021 at 9 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Muir J)

Introduction

• [1] Mr Allison seeks leave to bring a second appeal against a decision of Osborne J in which the Judge reduced a District Court award of costs under the Costs in Criminal Cases Act 1967 (CCCA) from $47,265 plus travel costs of $1,874.40 to $339 plus the same travel costs.^[1] In doing so, the Judge accepted the Crown’s argument that the District Court’s award did not appropriately reflect the restriction in s 13(3) of the CCCA, which limits recovery of costs to scale^[2] other than in cases of “special difficulty, complexity or importance”.

Background

• [2] Mr Allison observed his neighbour’s eight-month-old dog Flex, chasing and (he thought) attacking his neighbour’s sheep. He shot Flex in the hindquarters, severely, but not fatally, wounding him. Flex returned to his owner’s home. The owner’s grandfather (now deceased) tied him to a fence. Mr Allison went to the neighbour’s home carrying his gun. He engaged with the grandfather briefly. The grandfather then walked towards his car, which he intended to drive to his daughter’s house to telephone his son.^[3] As he did so, he heard two further gunshots. These were to Flex’s head.
• [3] Although in a written statement prepared by him a day after the shooting Mr Allison had described the fatal shots as having been to “put it out of its misery”, in his police interview seven days later he confirmed that the sole reason for killing the dog was to stop it chasing sheep:
  17. So it wasn’t to put the dog out of its misery or anything like that it was to stop the dog chasing sheep again?
  1. Yes.
• [4] The charges for which Mr Allison faced trial were:

(a) one charge of ill-treatment of an animal (relating to the shot to Flex’s hindquarters);^[4] and

(b) two charges of unlawful possession of a firearm.^[5]

• [5] The first unlawful possession charge related to the initial shot and the second to the fatal shots fired after Flex had returned home.
• [6] Mr Allison defended the ill-treatment of an animal charge and the first unlawful possession charges on the basis of s 57(1)(b) of the Dog Control Act 1996 which authorises a person to destroy a dog if the person witnesses it “attacking any other person, or any stock, poultry, domestic animal, or protected wildlife”.
• [7] His evidence was that not only was Flex chasing his neighbour’s sheep, but that he was attacking them.^[6] There was some support for that proposition in a contemporaneous police statement (disclosed to the defence) that the officer and an SPCA representative had observed “some wool missing” from one of the sheep. However, at trial the Crown suggested an alternative explanation for the clumps of wool found at the scene and called evidence from the neighbour that an inspection of the flock some weeks later had identified no evidence of injury.
• [8] At the conclusion of the Crown case the defence applied for a dismissal of all charges under s 147 of the Criminal Procedure Act 2011. In his ruling dated 7 May 2019, Judge DJL Saunders granted the application.^[7] In respect of the charges arising out of the first shooting he said that he was satisfied the dog was shot in the course of an attack on sheep. As a result, the defence, under s 57(1)(b) of the Dog Control Act was available and, in turn, Mr Allison discharged the burden of proving the existence of a lawful purpose in carrying or possessing his firearm.^[8]
• [9] In respect of the second unlawful possession charge the Judge held:^[9]

The third charge permits me to look at the overall circumstances. The dog was shot in the paddock and this was not a minor injury. Had the matter been reported and proved it is likely that a destruction order would have followed. Again, that is not something that Mr Allison specifically would have had in mind. The dog, however, was badly injured and whether or not the defendant was angry about the matter I find that he was entitled to call in aid ss 57 and 73 [of the] Dog Control Act.

• [10] Subsequently, Mr Allison sought $50,000 in indemnity costs relating to the prosecution, together with disbursements.
• [11] In his judgment on that application dated 28 May 2020, Judge DJL Saunders said:^[10]

It was always the defence case that Mr Allison had caught the dog attacking sheep in the paddock. He had shot and wounded it prior to the dog arriving back at the property where Mr Allison knew it had come from.

The evidence from the Vet who examined the dog after Mr Allison had shot it was that the dog would have suffered a significant injury from the first shot fired.

In my judgment of 7 May 2019 I was satisfied that Mr Allison was able to discharge the evidential onus under s 45(2) of the Arms Act without the need for him to give evidence.

• [12] The Judge referred to the case’s lengthy interlocutory history. This included a successful High Court appeal by the Crown against a ruling precluding admission of a written statement made by the grandfather prior to his death.^[11] We observe therefore that a significant portion of the costs for which Mr Allison sought indemnity was related to a defence position which was not ultimately upheld.
• [13] After setting out the principles for awarding costs, the Judge proceeded to identify the various steps in the proceedings. To each of these he applied his own assessment of what would be reasonable attendances at an hourly rate of $300. He arrived at a total sum of $47,265, closely approximating the award sought. He also allowed the travel costs identified.^[12]
• [14] On appeal, Osborne J noted there was always a strong prospect that the s 147 application would succeed in respect of the first two charges but said that the route to dismissal of the third charge was “not straightforward”. That was due to difficulties in aligning Mr Allison’s defence with the provisions of s 73 and in particular s 73(2) of the Dog Control Act.^[13] Section 73 provides:

73 No liability where dog wounded in attempt to destroy

(1) No person who is entitled under this Act to destroy any dog, and who does so in a reasonable manner or who wounds or maims the dog in the course of attempting to so destroy it, shall be under any criminal or civil liability for the injury done to the dog or its death.

(2) Nothing in subsection (1) shall apply to any person who wounds or maims a dog in the course of attempting to destroy it and does not take all reasonable steps to terminate its suffering.

• [15] After referring to a number of passages in Mr Allison’s police interviews the Judge concluded:^[14]

The submissions which Mr Wright made on this appeal (which I infer reflected those made in the District Court) came close to equating the need to terminate Flex’s suffering with the need to terminate Flex’s life. It was at least arguable if not clear from Mr Allison’s police interview that the focus of his decision to kill Flex (the subject of the third charge) was in order to terminate Flex’s life so that there would be no further worrying of sheep by Flex.

• [16] The Judge then noted that any decision to grant costs under the CCCA and any assessment of the quantum thereof was obliged to take into account the considerations identified in s 5(2) which had not been discussed in any detail by the District Court Judge.^[15] The Judge therefore conducted his own analysis of the s 5(2) factors, concluding this was a case where the District Court was entitled to make an award of costs.^[16] He noted, however, that the District Court Judge had proceeded directly from an assessment of entitlement to the calculation of a fair and reasonable fee on an indemnity basis and that he had not addressed s 13(3) of the CCCA, which limits awards to the maximum scale of costs prescribed in the Costs in Criminal Cases Regulations 1987 unless satisfied that:^[17]

... having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

• [17] The Judge observed that the pretrial issues involved in the case were not out of the ordinary, having previously noted the significant costs associated with Mr Allison’s ultimately unsuccessful opposition to admission of the grandfather’s hearsay statement. He also said that the evidence was limited, being five witnesses only.^[18] He concluded that the case was not therefore one of such special difficulty, complexity, or importance to warrant costs above scale. Accordingly he held that the award of indemnity costs was in error, noting that:^[19]

Whether it arose through the failure to consider all the relevant circumstances identified in s 5(2) [of the] CCCA or to apply s 13(3) [of the] CCCA or a combination of both, the result was that the entire focus was upon assessing what represented Mr Allison’s reasonable costs as between the solicitor and the client.

• [18] The Judge therefore reduced the District Court’s costs award from $47,265 and travel costs of $1874,40 to $339 and the same travel costs.^[20]

The application for leave

• [19] In order to obtain leave to appeal to this Court, Mr Allison must satisfy us either that:

(a) the appeal involves a matter of general or public importance;^[21] or

(b) a miscarriage of justice may have occurred, or may occur, unless the appeal is heard.^[22]

• [20] Mr Wright, for Mr Allison, submits that Osborne J “set the bar too high” in relation to what qualifies as a case of special difficulty, complexity, or importance and that, against the established authorities, the case satisfied these criteria because of:

(a) an underlying theme of prosecutorial misconduct, best exemplified by what he described as a failure to disclose the initial police and SPCA position, which if not redressed may result in a miscarriage of justice; and

(b) the existence of an issue of general and public importance, namely clarification of the circumstances to which s 73(2) of the Dog Control Act applies and, in particular, whether and to what extent an assessment must be made of the likelihood of the animal being rehabilitated before it is destroyed.^[23]

Discussion

• [21] For an appeal to involve a matter of general or public importance it must be one that has application beyond the particular case and is not fact specific. Leave will be declined where the application for leave raises issues in the nature of a “factual assessment that is specific to the circumstances of [the] case”.^[24]
• [22] Osborne J held that the case did not satisfy the “special difficulty, complexity or importance” criteria prescribed in s 13(3) of the CCCA. That was a factual assessment against well-established criteria. The Judge referred to predictable issues including the fact that the subject matter of the proceeding was not one of unusual gravity, the absence of any real jeopardy in terms of a prison sentence, the fact that the pretrial issues were “not out of the ordinary” and the limited compass of the evidence, reflected in the fact that the Crown case concluded within the first day of trial.^[25]
• [23] The Judge benchmarked the case against another recent High Court decision involving serious sexual and blackmail charges,^[26] noting Mander J’s conclusion in that case that it was not significantly more complex than sexual offending cases generally and although important to the defendant was not of any special legal importance.
• [24] In so doing the Judge made factual assessments specific to the circumstances of the case which are, in our view, well outside the matters contemplated in an appeal under s 276(2)(a) of the Criminal Procedure Act 2011.
• [25] We do not overlook Mr Wright’s argument regarding s 73(2) of the Dog Control Act. However, we point out that an appeal from a first appeal court’s decision on costs is an inappropriate vehicle in which to explore the finer points of that section’s construction.
• [26] The District Court Judge’s discussion of the issue (in the context of the s 147 application) was brief, amounting essentially to the conclusion that Flex was badly injured and that Mr Allison’s motives for destruction were irrelevant.
• [27] In the High Court, the issue again arose only peripherally and mainly in the context of whether the case was, from the outset, sufficiently hopeless that it should never have been brought. So far as costs were concerned, that was the decisive issue — not whether the Crown’s position or the defence’s position on the application of s 73(2) should ultimately be preferred. As we have noted, Osborne J concluded that the rationale for Mr Allison invoking s 73(2) was “not straightforward”. To that extent, we agree with the Judge that the third charge was in a different category to the first two. That was the decisive finding from a costs’ perspective as it reflected on the propriety of the overall prosecution. It involved a factual assessment as to the existence of arguable issues of law.
• [28] In any event, we are not satisfied that the issue raised by Mr Wright is one of “special importance” as that phrase should be interpreted in the context of s 13(3) of the CCCA. There must, in our view, be some nexus between the special importance and the costs incurred, to the extent that the former justifies an above scale award for the latter. The issue Mr Wright raises is a narrow one which would have invited a targeted legal submission. We would not, of itself, see it as justifying an award in excess of scale.
• [29] As to the suggested miscarriage of justice resulting from the decision, we are not persuaded that there is a sufficiently arguable case of prosecutorial bad faith such that the further appeal should be allowed on this basis. In particular, we are not persuaded by the non-disclosure argument. The constable’s initial observations made in the company of the SPCA inspector were disclosed to the defence, were cross‑examined on effectively and were clearly probative in terms of the Court’s decision to dismiss the first two charges. Without any inference of bad faith, it was always open to the Crown to develop a different theory for the existence of the clumps of wool found in the neighbour’s paddock. Its approach was consistent with the absence of observed injury to the flock in the weeks after the event.
• [30] The District Court Judge ultimately rejected this alternative explanation. He found that there had been an “attack”, accepting implicitly that Flex was responsible for pulling, from one or more sheep, the wool that was found.^[27] Osborne J considered a successful s 147 application was “always a strong prospect” but that does not of itself establish bad faith.^[28]
• [31] Moreover, as Osborne J found, Mr Allison’s defence of the third charge was not straightforward, particularly in light of his unambiguous acknowledgement during the police interview that he destroyed the dog without any reference to an assessment of its suffering. On the facts, the third charge could never in our view be described as having been improperly brought, whatever the outcome of the s 147 application.

Result

• [32] The application for leave to bring a second appeal is declined.

Solicitors:
Wilkinson Rodgers, Dunedin for Applicant
Crown Law Office, Wellington for Respondent

---

^[1] R v Allison [2010] NZHC 2583 [High Court judgment].

^[2] As provided for in the Costs in Criminal Cases Regulations 1987.

^[3] The grandfather could not locate the home phone and did not own a cell phone.

^[4] Animal Welfare Act 1999, ss 29(a), 30 and 37.

^[5] Arms Act 1983, s 45(1).

^[6] He also claimed that Flex had chased, but not attacked sheep on his own property some weeks earlier.

^[7] R v Allison [2019] NZDC 8572 [District Court judgment].

^[8] At [25].

^[9] At [26].

^[10] R v Allison DC Christchurch CRI-2017-012-2133, 28 May 2020 at [18]–[20].

^[11] At [14]–[15].

^[12] At [44]–[48].

^[13] High Court judgment, above n 1, at [29]–[31].

^[14] At [39].

^[15] At [42]–[43], [45] and [47].

^[16] At [49]–[59].

^[17] At [60]–[61]. We note, in fairness to the District Court Judge, Mr Wright’s submission that the Crown did not emphasise s 13(3) at District Court level.

^[18] At [66].

^[19] At [68].

^[20] At [70].

^[21] Criminal Procedure Act 2011, s 276(2)(a).

^[22] Section 276(2)(b).

^[23] We note that the application of this section does not appear to have been addressed in any reported decision to date.

^[24] Thompson v R [2005] NZSC 58, [2005] 3 NZLR 577 at [6], as cited in McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

^[25] High Court judgment, above n 1, at [65]–[66].

^[26] At [67], citing Purcell v R [2015] NZHC 531.

^[27] District Court judgment, above n 7, at [23].

^[28] High Court judgment, above n 1, at [29].