Harding-Reriti v Department of Corrections [2021] NZCA 470 (16 September 2021)

Last Updated: 21 September 2021

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

CA736/2020 [2021] NZCA 470

	BETWEEN	JAY MICHAEL HARDING-RERITI Appellant
	AND	DEPARTMENT OF CORRECTIONS Respondent

Hearing:	30 August 2021
Court:	Gilbert, Ellis and Peters JJ
Counsel:	A J Bailey for Appellant B C L Charmley and A F T Forward-Taua for Respondent
Judgment:	16 September 2021 at 9.30 am

JUDGMENT OF THE COURT

1. The application for leave to bring a second appeal against the District Court costs judgment awarding costs in favour of the appellant is declined.
2. The appeal against the High Court costs order requiring the appellant to pay costs is allowed. That costs order is set aside.

100. The appellant is awarded costs on this appeal in the sum of $1,500.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

• [1] This appeal, and application for leave to bring a second appeal, are brought in respect of two costs orders made under the Costs in Criminal Cases Act 1967 (the CCCA) after a prosecution was dismissed on the basis it should never have been brought.

The facts

• [2] It is necessary to commence by setting out the facts in some detail. As will become apparent, some of this detail emerged in a piecemeal fashion and only became known to Mr Harding-Reriti as the matter progressed through the District Court and the High Court.
• [3] On 12 November 2019, Mr Harding-Reriti pleaded guilty in the District Court at Christchurch to two charges — possession of an explosive device (a commercial firework with a small amount of shrapnel attached and a crude ignition device) and possession of offensive weapons (two knives in a scabbard designed for concealment behind the wearer’s back). Judge Couch considered the gravity of the offending was significant and noted that Mr Harding-Reriti had seven previous convictions involving firearms and three for offensive weapons. The Judge sentenced Mr Harding-Reriti to 12 months’ imprisonment.^[1] Because Mr Harding-Reriti had been in custody on remand since 30 April 2019, he was entitled to immediate release from prison for time served.^[2]
• [4] The Judge clearly intended that standard release conditions would apply and understood they would do so by operation of law. In his sentencing remarks he stated:^[3]

There will be standard release conditions by operation of the Sentencing Act 2002, but I impose no special conditions.

• [5] However, the Judge overlooked the need to specify when the conditions would expire, as required by s 93(1) of the Sentencing Act 2002 where sentences of 12 months’ imprisonment or less are imposed:

93 Imposition of conditions on release of offender sentenced to imprisonment for short term

(1) A court that sentences an offender to a term of imprisonment of 12 months or less may impose the standard conditions and any special conditions on the offender and, if it does so, must specify when the conditions expire.

(Emphasis added.)

• [6] Section 93(2A) sets out the dates that may be specified for expiry of conditions:

(2A) The court may specify that conditions imposed under this section expire on—

(a) the sentence expiry date; or

(b) the date that is a specified period before the sentence expiry date; or

(c) the date that is a specified period of up to 6 months after the sentence expiry date.

• [7] The record of hearing was stamped with standard orders which were modified by the Judge to reflect the orders made in open court. The Judge has subsequently confirmed that he did not write the word “on” after the stamped words “standard release conditions until”, which appears in the space the expiry of the standard release conditions would normally be recorded. It is not known who added this word or precisely when this was done, but the alteration should not have been made without reference back to the Judge. The stamp containing the modifications made by the Judge and the subsequent addition of the word “on” (using a different pen) is shown below:

• [8] The warrant of commitment signed by the Judge on the day of sentencing did not include any release conditions.
• [9] It appears there was some confusion within the Department of Corrections (Corrections) as to whether standard release conditions applied. The notes prepared by the court liaison officer who was present in court on 12 November 2019 relevantly record — “6 mths RoC imposed with no s/c?s” (a reference to six months release on standard conditions imposed with no special conditions).
• [10] The issue was followed up with the Court as can be seen from a subsequent Corrections file note dated 20 November 2019. This relevantly states:

Notes entered state that [Mr Harding-Reriti] has been released on time served without any conditions of release.

However, notes from court dated 12/11/19 state that he has 6 months [release on standard conditions] with no [special] conditions.

[Corrections personnel] contacted Court and prison. There has been no outcome of her contact.

... [Mr Harding-Reriti] said he [would] be happy to come back to probation if it is discovered that he indeed has 6 [months] release conditions.

• [11] Following contact between Corrections and the Court registry, an amended warrant of commitment was prepared and issued. Although this document is also dated 12 November 2019 and contains the Judge’s signature on the face page, it was prepared and sent to Corrections on 25 November 2019. Unlike the original warrant, the amended warrant states on the second page:

Release Conditions

The offender was a person to whom section 93(1) of the Sentencing Act 2002 applies, and the Court imposed -

(a) the standard release conditions set out in section 14 of the Parole Act 2002 which expire on the date the sentence expires.

• [12] Section 53(1) of the Parole Act 2002 requires that when an offender is released from detention in a prison, he or she must be issued with a licence setting out the release conditions that apply, the date those conditions cease to apply and providing details about liability to recall. No such licence was provided to Mr Harding-Reriti at the time he was released from prison on 12 November 2019.
• [13] A licence was subsequently prepared and dated 2 December 2019 (20 days after Mr Harding-Reriti was released from prison) setting out the standard release conditions and stating that these would apply until 29 April 2020, being the sentence expiry date. The first of these conditions purported to require Mr Harding-Reriti to report to a probation officer as soon as practicable, and not later than 72 hours, after his release — in other words, not later than 15 November 2019 (17 days before the licence was prepared).
• [14] On 16 December 2019 (two weeks after the release license was prepared). Mr Harding-Reriti was advised that a release licence had been created and he was subject to release conditions until 29 April 2020. He was instructed to report to Corrections on 20 December 2019. Mr Harding-Reriti is recorded as having responded that “he would like to talk to his lawyer first about this as he is under the impression that he is not”.
• [15] On 6 January 2020, Mr Harding-Reriti was again contacted by Corrections via telephone and instructed to report to probation on 8 January 2020. He said he had still not contacted his lawyer.
• [16] On 3 March 2020, Mr Harding-Reriti was charged with breaching his release conditions by failing to report to a probation officer. This was less than two months prior to Mr Harding-Reriti’s sentence expiry date and the expiry of the purported release conditions. The date of the offence was stated to be 15 November 2019 (three days after his release from prison and 17 days prior to the preparation of the release license). A summons was issued for Mr Harding‑Reriti to appear in the District Court at Christchurch on 26 March 2020.
• [17] A probation officer sent a letter to Mr Harding-Reriti dated Friday, 6 March 2020 advising him that he was facing enforcement action for failing to report within 72 hours of his sentence commencing. The letter stated that a summons to appear in court was waiting for him at the community Corrections centre and that a warrant would be issued for his arrest if the summons could not be served.
• [18] On Tuesday, 10 March 2020, following contact between Corrections and the police, a decision was made to arrest Mr Harding-Reriti rather than serve the summons on him:

As per our phone conversation, Mr Harding-Reriti has breached his release conditions and we have laid a breach to be heard on 26th March. Due to his penchant for firearms and bombs I am reluctant to serve him without police support, and I think perhaps he might warrant an arrest without warrant under section 32 of the Crimes Act [1961]. I’d be interested to hear both yours and Intel’s thoughts on this?

• [19] Mr Harding-Reriti was accordingly arrested on 11 March 2020. He was denied police bail and held in custody overnight. Mr Harding-Reriti was granted bail when he was brought before the District Court at Christchurch the following morning despite bail being opposed.
• [20] Mr Harding-Reriti instructed Mr Bailey (who had acted for him at sentencing) and entered a not guilty plea on 4 June 2020. Prior to the case review hearing, Corrections advised that it intended to seek leave to withdraw the charge under s 146 of the Criminal Procedure Act 2011 (the CPA). Mr Harding-Reriti opposed this course. He sought a dismissal of the charge under s 147 of the CPA and indemnity costs under s 5 of the CCCA. At the case review hearing on 27 July 2020, the Court identified the core issue as being whether release conditions had been imposed. A direction was made for a transcript of Judge Couch’s sentencing remarks to be prepared and provided to counsel. A timetable for the filing and exchange of submissions on both the legal issue and on costs was set and a hearing date allocated for 14 August 2020.

Application for costs

• [21] Mr Bailey filed submissions on 4 August 2020 in support of the application for an order dismissing the charge and an award of indemnity costs. After setting out the background facts, Mr Bailey advanced nine reasons in support of his overall contention that Corrections’ decision to charge Mr Harding-Reriti was negligent:

25. First, the Court never attempted to impose release conditions on the applicant.

26. Secondly, if the Court was attempting to impose release conditions then it was required to specify when those conditions expired. Without such a direction any purported release conditions could not have effect.

27. Thirdly, [Corrections] did not prepare a release licence at the time when the applicant was released from prison as it was required to do pursuant to s 53 of the Parole Act. As noted, this was done 20 days later.

28. Fourthly (it appears) that [Corrections] never gave the applicant a copy of this release licence at any stage.

29. Fifthly, [Corrections] made a decision to subject the applicant to release conditions, despite its own records indicating uncertainty, without getting confirmation as to the correct position.

30. Sixthly, despite the applicant advising that he did not believe that he was subject to release conditions [Corrections] still did not ensure the correct position was ascertained.

31. Seventhly, [Corrections] made a decision to charge the applicant despite the earlier uncertainty without determining the correct position.

32. Eighthly, the allegation made against the applicant was that he “failed to report [within 72 hours of release] as directed”. However, the applicant was never directed to report within 72 hours of his release. Again, a release licence was not prepared until 20 days following his sentence.

33. Ninthly, [Corrections] appears to have been influenced by a third party (the Police) to arrest and oppose the bail of the applicant. [Corrections] was content to try and summons the applicant with a hearing date of 26 March 2020 having been allocated. However, the applicant was arrested 14 days prior to that hearing date. The contact from the Police on 10 March 2020 is highly suspicious and, absent a contrary explanation, it appears has resulted in [Corrections] giving the Police a directive to arrest the applicant. [Corrections] must have requested that the Police arrest the applicant. It needs to be determined why that occurred.

• [22] In its submissions in response, Corrections maintained that there was an evidential sufficiency to support the charge. It said it had elected not to proceed with the charge only because Mr Harding-Reriti had “reengaged”. Corrections understood that standard release conditions until the expiry of the sentence had been imposed. A copy of the formal court record of hearing was attached to the submissions and the comment made that the Judge “appeared to note that the sentence release conditions would expire on the sentence expiry date (29 April 2020)”. It was also stated that an “amended warrant of commitment signed by Judge Couch, dated 12 November 2019, did contain release conditions” and these conditions would end on the sentence expiry date. Counsel said it was unclear who drew the absence of release conditions to the Court’s attention but referred to the case management notes dated 20 November 2019 (referred to at [10] above). Counsel stated that Mr Harding‑Reriti was advised on 16 December 2019 that “a release licence had been created and that he would be subject to release conditions until 29 April 2020”. He was instructed to report on 20 December 2019 to be inducted. Mr Harding-Reriti not only failed to report within 72 hours of release, he also failed to do so when directed by Corrections in December 2019 and January 2020. In those circumstances, it was submitted that a withdrawal of the charge under s 146 of the CPA was the preferable course but Corrections did “not seek to press the point further”.
• [23] As to costs, it was submitted that the investigation had been conducted in a “proper and appropriate way” following “a clear order of the Court”. Once initiated, there was “never any basis upon which the prosecution should have been stopped”. The test for prosecution was said to have been met at every stage. After Mr Harding‑Reriti engaged, Corrections sought to have the charge dismissed on the basis the prosecution was no longer in the public interest and this was an appropriate step to take. It was submitted that the case did not have any of the features of the authorities where costs had been awarded under the CCCA. In particular, it could not be said that the prosecution should never have been brought.
• [24] Mr Bailey filed supplementary submissions on 13 August 2020. He recorded that after he had filed his original submissions, the Crown solicitor had sent him the amended warrant of commitment, but not the earlier version. Mr Bailey was critical of this, claiming the disclosure had been selective:

Following enquiries, the earlier warrant was subsequently provided to me (the following day). Both should have been disclosed. That was selective disclosure (by someone). Indeed, both should have been disclosed to counsel prior to the filing of the costs application. [Corrections] is now parading such documents before the Court to try and establish Mr Harding-Reriti’s guilt. If they establish his guilt they are relevant and disclosable by law. The Criminal Disclosure Act [2008] does not contemplate lawyers being detectives. [Corrections’] failures are adding to Mr Harding-Reriti’s cost and need to be acknowledged by the Court.

• [25] Having received both warrants, Mr Bailey sought copies of all communications between Corrections and the Court leading to the original warrant being changed. Corrections responded that they did not keep anything other than the warrants on file and it was not possible to assist further because different people staffed the service desk every day and emails were not kept. Mr Bailey did not accept the claim that emails between Corrections and the Court were not obtainable. He said it was not credible for Corrections to suggest that it could not even provide the date it received either the amended or the original warrant. He suggested that a failure to keep a record of when Corrections received the warrant would be a breach of its obligations under s 17 of the Public Records Act 2005. Mr Bailey also submitted it was not appropriate for Corrections to communicate unilaterally with the Court about the sentence of a defendant, particularly one represented by counsel:

In addition, [Corrections] should have not been unilaterally communicating with the Court about the sentence of a defendant, particularly one who was represented by counsel. It was improper to do that. Again, [Corrections] appears to be suggesting that as a result of the new warrant of commitment being issued Mr Harding-Reriti’s legal obligations altered. And, it appears that [Corrections’] contact with the Court led to a new warrant of commitment being issued. In such circumstances, basic fundamental fairness would dictate that that process should not occur in secret without Mr Harding-Reriti’s knowledge. Moreover, [Corrections] kept its contact with the Court a secret from Mr Harding-Reriti even after the new warrant had been issued.

• [26] Having seen the record of hearing upon which Corrections was placing reliance, Mr Bailey also queried whether Judge Couch wrote the word “on” or signed the amended warrant of commitment on 12 November 2019:

There is an additional problem. It appears very unlikely based on [Corrections’] offender notes (and the fact that no release licence was issued until 2 December 2019) that Judge Couch has signed the amended warrant of commitment on 12 November 2019 as that amended warrant suggests. In addition, the Court record of hearing indicates that Judge Couch used a relatively wide black pen to record his sentence. However, “on” appears to have been written by a different pen, perhaps not even by Judge Couch, and also appears to have been written over (blue pen appears to have been used). In the current state of affairs it is not accepted, at this point of time, that Judge Couch wrote “on”, at least on 12 November 2019.

• [27] In any case, Mr Bailey submitted the relevance of the record of hearing was questionable given Corrections had only obtained a copy of it at the earliest on 11 August 2020. It could not have been relevant to the decision to charge Mr Harding‑Reriti, who was sentenced in open court and was entitled to rely on what was stated at that time. Further, Mr Bailey said there was no evidence Mr Harding‑Reriti had been served with a release licence and this was a fundamental problem. Mr Bailey therefore maintained that the charge of breaching release conditions was unsustainable.
• [28] Mr Bailey then addressed each of the statutory criteria for an award of costs under s 5(2) of the CCCA. As to whether the prosecution had acted in good faith in bringing and continuing the proceedings, he suggested the prosecution “appears to have been conducted for partially ulterior purposes including the arrest of Mr Harding‑Reriti without warrant and opposing his bail”. He submitted there was insufficient evidence to support a conviction at the time the proceedings commenced. He contended that Corrections’ delay until March 2020 to prosecute Mr Harding-Reriti “remains curious and unexplained”. Mr Bailey submitted that Corrections knew there were problems with the sentence and had “unwisely” contacted the Court on an ex parte basis, apparently without taking legal advice. He suggested the investigation reflected “sloppiness and negligence” and was “managed extremely poorly”. He said this had led to an unnecessary arrest and loss of liberty for Mr Harding-Reriti which was “influenced (it appears) at least in part by the desires of the New Zealand Police”.

District Court costs judgment

• [29] Judge Zohrab gave an oral judgment at the conclusion of the hearing on 14 August 2020.^[4] The Judge found that the charge “should never, ever have been brought ... when one looks at the fundamental facts at the time”.^[5] The Judge therefore dismissed the charge under s 147 of the CPA.^[6] He also awarded costs of $500 to Mr Harding-Reriti.^[7] The Judge explained why costs should be set at this figure as follows:

[13] At that stage [when Corrections indicated it was willing to withdraw the charge], based on the time records from Mr Bailey ... he had engaged in a reasonably modest amount of work. Since then matters have grown like “Topsy” and he in terms of his time records has incurred or used up a significant amount of time preparing submissions and responding to [Corrections]. ...

[14] As I say, my clear view of this matter is that the prosecution should never, ever have been brought but, having said that, it is a pretty simple, straightforward point. I do not see any grand conspiracy. I see an error on the part of [Corrections] in filing the application, but they offered at a pretty early stage to withdraw the matter. I am prepared to move slightly above scale for the work that was done at an early stage, but I see no justification for the hours that have been spent subsequent.

[15] What is going to happen is as follows. On a pragmatic, common sense basis, to bring an end to this matter, [Corrections] is ordered to pay $500 indemnity costs to [Mr Harding-Reriti]. I see no justification at all for the hours that have been spent subsequent. This is a very modest matter, a very short matter that would have easily been argued without the need to spend all of that time. My order is in excess of the scale costs that will be calculated in terms of the Costs in Criminal Cases Act but it will bring an end to it and makes pragmatic use of everybody’s time. There are $500 costs to be paid within 21 days.

High Court judgment

• [30] Mr Harding-Reriti appealed to the High Court, contending he should have received indemnity costs for all steps taken, including in respect of his application for costs. He sought an order to this effect and indemnity costs on the appeal. The appeal was dismissed by Doogue J in the High Court at Christchurch on 24 November 2020.^[8]
• [31] The Judge was critical of Mr Bailey’s “speculative allegations” that the record of hearing had been altered after the sentence was imposed and that this was as a result of “secret” communications between Corrections and the District Court registry:

[28] In addition to the submissions he made as to costs, Mr Bailey made (as he had done in the District Court) speculative allegations by way of submissions about the record of the hearing being altered after Judge Couch imposed his sentence, and that alteration having been as a result of secret communications between [Corrections] and the Registry. I do not place any weight on these speculations, and simply observe that counsel should take care to ensure that allegations that are tantamount to allegations of fraud and corruption are always supported by evidence.

• [32] The Judge considered that, “[a]s a result of the Court record, it was open to [Corrections] to consider that standard release conditions had been imposed on Mr Harding-Reriti and that they expired on 29 April 2020”.^[9] Therefore, following Mr Harding-Reriti’s lack of engagement, it was also open to Corrections to lay the charge. She said that Judge Couch did not have jurisdiction to vary the sentence he had imposed simply by signing an amended warrant of commitment. Instead, Mr Harding-Reriti would need to be recalled for the variation to be done in open court. However, the Judge considered this was not the fault of Corrections and it was entitled to rely on the amended warrant on its face.^[10] The Judge rejected Mr Bailey’s submission that the prosecution had been brought for “ulterior purposes”.^[11]
• [33] The Judge agreed with Corrections that there was sufficient evidence to support a conviction at the time the prosecution commenced. This was because Mr Harding-Reriti did not report to a probation officer within 72 hours of his release, nor did he report in December 2019 or January 2020 when instructed to do so.^[12] The Judge did not engage with the point that no release licence was provided to Mr Harding-Reriti at the time he was released. Nor did the Judge address Mr Bailey’s submission that the amended warrant and the release licence were not even prepared until after the date of the alleged offence.
• [34] In addressing the criterion in s 5(2)(c) of the CCCA — whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty — the Judge said this:

[45] When [Corrections] first contacted Mr Harding-Reriti to tell him he was subject to release conditions and was required to report to a probation officer, he told them that he did not believe he was subject to conditions. [Corrections] subsequently learnt of inconsistencies on the Court record, and chose to rely on the second warrant of commitment to lay the charge.

• [35] As to whether the investigation had been conducted in a reasonable and proper manner (relevant under s 5(2)(d)), the Judge said:

[46] [Corrections] tried to contact Mr Harding-Reriti several times to tell him that he was subject to release conditions, and was required to report to a probation officer. He failed to comply with subsequent directions to report. It was reasonable in the circumstances to seek Mr Harding-Reriti’s ongoing compliance with the warrant of commitment.

• [36] However, the investigation ought to have focused on whether conditions had been imposed, not on the steps taken to secure compliance. The Judge agreed that the evidence did not support a finding of guilt, “for the obvious reason that the sentence was not validly imposed”.^[13]
• [37] The Judge then turned to consider Mr Harding-Reriti’s acts or omissions on which the charge was based and to the investigation and proceedings (relevant under s 5(2)(g)). She observed that Mr Harding-Reriti was recorded as saying he would be willing to report to a probation officer if he was subject to release conditions. This was no doubt a reference to the exchange referred to at [10] above. The Judge went on to say however, that Mr Harding-Reriti failed to report, even when informed that Corrections had a warrant of commitment showing he was subject to release conditions. We are not sure what the Judge was referring to here; we assume it was a reference to the discussion with Mr Harding-Reriti on 16 December 2019 referred to at [14] in which he was informed a release licence had been prepared. Mr Harding‑Reriti stated at that time that he was still under the impression he was not subject to release conditions.
• [38] The Judge agreed that Mr Bailey had taken appropriate steps up to and including his appearance at case review. However, she considered his insistence on the charge being dismissed rather than withdrawn was “confounding”.^[14] She said it was not necessary to insist on a dismissal of the charge.^[15] This was because there was not even a remote possibility that Corrections would attempt to re-lay the charge and, even if they did, it would inevitably fail because the sentence was defective.^[16] In these circumstances, the Judge considered “Mr Bailey would not have been negligent if he had not opposed the granting of leave to [Corrections] to withdraw the charge at case review”.^[17] This comment was made in response to a submission to this effect by Mr Bailey. However, we observe that the question of whether Mr Bailey would have been negligent not to pursue dismissal would depend on his instructions. The more important question is whether Mr Harding-Reriti’s pursuit of a dismissal was reasonable in the circumstances and merited an award of costs.
• [39] In conclusion, the Judge did not agree with Judge Zohrab that the charge “should never, ever have been brought”.^[18] She said Corrections gave Mr Harding‑Reriti “an opportunity to comply with the warrant of commitment” and did not “rush” to charge him.^[19] The Judge agreed with the submission on behalf of Corrections that the test for prosecution was met at every stage.^[20] In the Judge’s view, the matter should have been resolved at the case review stage:

[60] I consider the matter ought to have been resolved at the case review stage. The prosecution cannot be blamed for the decision of the Judge at case review to set it down for hearing on the issue of dismissal and costs, rather than either granting leave to withdraw the charge or dismissing the charge at that point in time. I agree with the Judge that this was a simple point, and it ought to have been determined in a timely and proportionate manner.

• [40] The Judge noted that at the case review stage, Mr Harding-Reriti had sought reimbursement of costs, which then amounted to only one hour and 43 minutes of Mr Bailey’s time.^[21] The Judge considered that Judge Zohrab had been generous in awarding costs above scale, but since the appeal was against the exercise of a discretion, did not disturb the order.^[22]

Recall application and High Court costs order

• [41] On 8 December 2020, Mr Harding-Reriti applied to have the High Court judgment recalled. Mr Bailey submitted that there had been a fundamental error in procedure in terms of this Court’s decision in Lyon v R justifying recall.^[23] The alleged error was that the High Court had proceeded on an incorrect factual basis as to whether the Court record had been altered by someone other than Judge Couch following contact between Corrections and the District Court. Mr Bailey explained that, in response to a letter he had written some time ago to the Executive Judge of the District Court at Christchurch seeking to clarify the circumstances surrounding the amendment to the Court record of hearing, he had received an email from the Court Registrar on 19 November 2020 (five days before the High Court judgment was delivered) conveying Judge Couch’s response:

At the time I sentenced Mr Harding-Reriti, my intention was that he should be subject to oversight by Probation following his release from prison but that no special conditions were required. Acting on my understanding of [s 93 of the Sentencing Act], therefore, I simply referred in my notes on sentencing to release conditions imposed by the Act. That would have meant those release conditions continued until the sentence expiry date. That was what I considered appropriate.

As Mr Bailey correctly observes, s 93(2) comes in to effect only when a sentence of more than 12 months imprisonment is imposed and had no operation in this case. It was nonetheless my intention that there should be standard release conditions and that they should continue until the sentence expiry date.

... Mr Bailey asks three questions. I am unable to answer them directly. All I can say in relation to them is:

(i) I do not know who wrote what appears to be the word “on” on the charging documents. It was certainly not me.

(ii) I do not know when those words were written. It must have been some time after I completed sentencing on 12 November 2019.

(iii) I have no specific recollection of signing either warrant of commitment.

• [42] The Court Registrar further advised:

In relation to your questions about the amended warrant of commitment I advise that this warrant was prepared and forwarded to the prison on 25 November 2019 once it was brought to the Registry’s attention that the Judge intended [that] the standard release conditions were to apply as per the notes on sentencing. The word “on” would have been added by the Registrar who prepared the warrant to reflect what was stated in the notes. The amended warrant of commitment still has the date 12 November 2019 to reflect the date the sentence was imposed.

• [43] Mr Bailey submitted that this information supported his submissions, which the Court had criticised (the relevant passage is quoted at [31] above). He claimed that a miscarriage of justice would occur if the error was not corrected because the only other remedy would be to seek leave for a second appeal to this Court. Mr Bailey submitted that an application for leave to bring a second appeal would be “problematic” because it was probably not an appropriate case for leave given it was an intensely factual issue and did not involve any issue of public importance or principle. Mr Bailey therefore submitted that the “more appropriate option” was for “the Court to recall its judgment and for a new judgment to issue in light of the above”.
• [44] The application for recall was opposed. Counsel for the respondent submitted it was unlikely Judge Couch would have commented in the way he had been quoted in the email above at [41] had he known he was being asked to comment on a live appeal relating to a sentence he had imposed. A sentencing judge’s comments made after sentence would not usually be admissible in subsequent proceedings involving that sentence, save in the most exceptional circumstances such as where a higher court calls for a report from the judge. In any event, it was submitted that the further information did not assist, and the recall application should be dismissed. It was only at this stage that Corrections sought costs for the appeal. Costs were also sought with respect to the recall application on the basis of scale (2 x $226). This was said to be justified because vexatious allegations of “fraud and corruption” had been made.
• [45] The Judge dismissed the recall application in a minute on 18 December 2020.^[24] She said the additional information relied on did not “raise any proven impropriety” and the application was “entirely without merit”.^[25] The Judge awarded costs to Corrections in the sum of $452.50.^[26]
• [46] Mr Harding-Reriti now applies for leave to bring a second appeal against the District Court’s refusal to award him full indemnity costs. He contends that an injustice would result if the High Court judgment dismissing his appeal is not corrected. He also appeals, as of right, against the order for costs made against him on the recall application.

Grounds of proposed appeal/appeal

• [47] In his notice of application for leave to appeal (which also serves as his notice of appeal against the High Court costs order), Mr Harding-Reriti stated the grounds of his proposed appeal and appeal in broad terms, as follows:

Whether the Judge was correct to dismiss the appeal (in relation to the judgment dated 24 November 2020) and award costs against the applicant (in relation to the minute dated 18 December 2020).

• [48] In response to the question whether the proposed appeal challenged the exercise of a judicial discretion, Mr Harding-Reriti stated:

If the proposed appeal involves the exercise of judicial discretion then the Judge made such material errors which were so prejudicial to [Mr Harding-Reriti] that the High Court judgment and minute should be corrected.

• [49] As to whether the proposed appeal challenged a factual finding, Mr Harding‑Reriti answered “N/A”: Mr Harding-Reriti also stated that his proposed appeal did not raise any question of law for determination by this Court.
• [50] On 24 March 2021, Brown J directed that the application for leave to bring a second appeal against the District Court costs judgment and the appeal against the High Court costs order be heard together (but separately from the proposed second appeal in respect of the former).

Application for leave to bring a second appeal against the quantum of costs awarded in favour of Mr Harding-Reriti

• [51] Costs awards made by a trial court under the CCCA are rare. Costs may be awarded under the CCCA on an application for costs,^[27] but these are even more rare. Awards of indemnity costs are rarer still. Because a decision on costs is discretionary, an appellate court should not interfere unless satisfied the judge acted on a wrong principle, failed to take account of some relevant matter, factored in the irrelevant or was plainly wrong.^[28] Any appeal against the refusal to make such an award must confront these significant challenges. Costs for prosecuting a criminal appeal are also available under the CCCA but, as this Court recently observed, there must be something significantly out of the ordinary to justify such an award.^[29]
• [52] An application for leave to bring a second appeal against the grant or refusal of a costs award under the CCCA is governed by s 276 of the CPA. This Court must not give leave for a second appeal unless satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard. The leading authority on the meaning and application of this test is this Court’s decision in McAllister v R.^[30] The test is a high one. Not every error will give rise to a miscarriage.^[31]
• [53] We acknowledge that the charging of Mr Harding-Reriti — and so his subsequent arrest — was the product of a number of errors. As we discuss further below, this should not have happened. But, as Mr Bailey correctly acknowledged in his recall application, the proposed second costs appeal does not raise any issue of principle or public importance. The notice of application for leave to appeal does not attempt to identify any issue of that nature, let alone one that could justify the time and expense of a second appeal. As has been commented on in both Courts below, the time and expense that have already been consumed pursuing costs in this case have been out of all proportion to the amount realistically in issue. If leave were granted, this would commit the parties to yet more wasteful costs in the pursuit of a claim for very modest costs. We do not consider the grant of leave for a second appeal would serve the interests of justice. The high bar for a second appeal is not met. The application for leave to bring a second appeal must accordingly be declined.

Appeal against costs order made in the High Court against Mr Harding-Reriti

• [54] Mr Harding-Reriti sought indemnity costs for his appeal in the High Court. This was opposed, but there was no cross-claim by Corrections at the time of the hearing of the appeal seeking costs against Mr Harding-Reriti for exercising his right of appeal. The application for costs on behalf of Corrections was only made in response to the recall application. It was said to be justified by “the twice repeated allegations of ‘fraud and corruption’” falling into the vexatious category.
• [55] The Judge gave no reason in her minute for ordering costs on the appeal. Indeed, she did not state expressly that she was awarding costs for the appeal. The Judge stated only that “the application [for recall] is entirely without merit” and “[c]osts are awarded to Corrections in the sum of $452.50”. That costs were awarded for the appeal and the recall application is only a matter of inference from the memorandum filed on behalf of Corrections opposing recall and seeking costs.
• [56] We agree with Judge Zohrab that the prosecution should never have been brought. Release conditions were not imposed at sentencing and no release licence was issued to Mr Harding-Reriti when he was released from prison on 12 November 2019. There was therefore no basis for the contention that he committed an offence by failing to report to a probation officer on 15 November 2019.
• [57] The amended warrant does not assist because it was not prepared until later. Further, it was not given to Mr Harding-Reriti, nor would this be expected. Corrections’ records show that Mr Harding-Reriti was first told on 16 December 2019 that a release license had been prepared. But that was not served on him and it obviously could not provide evidential support for the charge that Mr Harding-Reriti breached a requirement to report on 15 November 2019.
• [58] What matters is what the Judge said in open court at sentencing. Mr Harding‑Reriti was entitled to rely on that and his understanding that there were no release conditions turned out to be correct. Any doubt on the part of Corrections could have been readily dispelled by seeking a transcript of the Judge’s sentencing notes. The transcript since obtained shows that no such order for release conditions was validly made (as explained at [5] above). If there had been a case for recall and correction, that could only have been done on notice to Mr Harding-Reriti. That possible course was not pursued and that was the end of it. We therefore respectfully disagree with Doogue J’s conclusion that it was open to Corrections to lay the charge and that there was sufficient evidence to support a conviction at the time the prosecution commenced.
• [59] We consider it was reasonable for Mr Harding-Reriti to seek to have the charge dismissed. For so long as Corrections did not acknowledge that the charge should not have been laid, withdrawal under s 146 of the CPA — rather than dismissal under s 147 — left him in jeopardy of being charged again.^[32] Once that is accepted, and given the ultimate conclusion that the charge should never have been brought, it was at least arguable that costs should have been awarded in Mr Harding-Reriti’s favour for obtaining that outcome. As Mr Bailey says, Mr Harding‑Reriti’s position was vindicated on this issue; the opposition on behalf of Corrections was not.
• [60] Mr Harding-Reriti has been criticised for the escalation of costs. But it is clear from our narrative above that it took some time and effort to get to the bottom of what had actually occurred. We consider Mr Bailey was justified in doing that; errors of real consequence were uncovered. Moreover, the need for proportionality cuts both ways. Corrections could have acknowledged the error and agreed to the charge being dismissed at the case review hearing. After all, it wanted to withdraw the charge and there is nothing to indicate it wished to preserve the opportunity to lay a new charge. With the benefit of hindsight, it would have been much better for all concerned if Corrections had agreed to a dismissal and to pay the very modest costs claimed at that stage. The costs it has subsequently incurred have far exceeded those originally sought by Mr Harding-Reriti at the time of the case review hearing.
• [61] We do not consider Mr Harding-Reriti’s appeal can be categorised as being entirely without merit, let alone frivolous or vexatious. It was arguable that he should have received costs for all steps reasonably required to secure the dismissal of the charge. We would not describe the award as “generous”.^[33] In our view, the appeal had merit and Mr Harding-Reriti should not have been exposed to an adverse costs award under the CCCA for exercising his right of appeal.
• [62] We acknowledge, of course, that if an appeal includes a frivolous or vexatious matter, this can be taken into account in determining costs regardless of the outcome of the appeal. Section 8(5) of the CCCA provides:

8 Costs on appeals

...

(5) If the court which determines an appeal is of opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.

• [63] Corrections relied on this provision, arguing that Mr Harding-Reriti had alleged fraud and corruption and this was vexatious. This may be the reason why costs were awarded to it, although this was not stated by the Judge. However, Mr Bailey did not use this terminology; that was the Judge’s expression.^[34] Mr Bailey was correct to invite the inference that the record of hearing had been altered after the sentencing hearing by someone other than the Judge and to submit that this should not have happened. Mr Bailey had a proper evidential basis for his core complaint on behalf of his client that Mr Harding-Reriti should not have been charged, arrested or held in custody. We do not consider he acted improperly in raising these issues head on. While his choice of language might have been unwise in some respects (for example, using the word “secret” when he was simply making the point that the communications between Corrections and the Court were without notice to him or Mr Harding-Reriti), we do not consider this could justify an award of costs being made against Mr Harding‑Reriti on the appeal.
• [64] We can understand why Mr Bailey considered the response from Judge Couch (passed on by the email quoted above at [41]), received after the appeal hearing, could be important in the face of Doogue J’s strong criticism in the judgment concerning “speculative allegations by way of submissions about the record of the hearing being altered after Judge Couch imposed his sentence”, which she regarded as “tantamount to allegations of fraud and corruption”.^[35] It is not surprising that Mr Bailey wished to answer this rebuke as it not only reflected on his professional conduct, but was of central importance to the costs issue.
• [65] While the application for recall faced considerable difficulty given the very limited nature of the recall jurisdiction, we do not consider it was improper, vexatious or deserving of being met with an award of costs under the CCCA. We are persuaded that the appeal should be allowed and the costs order made in the High Court in favour of Corrections set aside.
• [66] Mr Bailey seeks costs in respect of this appeal and the application for leave to bring a second appeal. Although Mr Harding-Reriti has succeeded only in part, he has been put to significant cost to restore the benefit of the fully justified costs award he received in the District Court. For this reason, and given the somewhat exceptional circumstances of this case including that the charge should never have been laid in the first place, we consider it would be in the interests of justice to make a modest award of costs on the present appeal. We make no order for costs in respect of the unsuccessful application to bring a second appeal against the District Court costs judgment.

Result

• [67] The application for leave to bring a second appeal against the District Court costs judgment awarding costs in favour of the appellant is declined.
• [68] The appeal against the High Court costs order requiring the appellant to pay costs is allowed. That costs order is set aside.
• [69] The appellant is awarded costs on this appeal in the sum of $1,500.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Harding-Reriti [2019] NZDC 22788 [Sentencing notes].

^[2] Parole Act 2002, s 86(1).

^[3] Sentencing notes, above n 1, at [7].

^[4] Harding-Reriti v Department of Corrections [2020] NZDC 16262 [District Court costs judgment].

^[5] At [11].

^[6] At [16].

^[7] At [15].

^[8] Harding-Reriti v Department of Corrections [2020] NZHC 3113 [High Court judgment].

^[9] At [39].

^[10] At [40].

^[11] At [42].

^[12] At [44].

^[13] At [47].

^[14] At [50].

^[15] At [51].

^[16] At [52].

^[17] At [55].

^[18] At [56].

^[19] At [57].

^[20] At [58].

^[21] At [19].

^[22] At [62].

^[23] Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421 at [27]. See also Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [23]–[25].

^[24] Harding-Reriti v Department of Corrections HC Christchurch CRI-2020-409-131, 18 December 2020 (Minute of Doogue J) [High Court costs order].

^[25] At [6].

^[26] At [8].

^[27] See, for example, R v Reid [2007] NZSC 90, [2008] 1 NZLR 575.

^[28] Shirley v Wairarapa District Health Board [2006] NZSC 63, [2006] 3 NZLR 523 at [15].

^[29] W(CA447/2017) v R [2020] NZCA 283 at [15].

^[30] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[31] At [38].

^[32] Pursuant to s 147(6) of the Criminal Procedure Act 2011, a dismissal of a charge is deemed to be an acquittal.

^[33] High Court judgment, above n 8, at [62].

^[34] At [28].

^[35] At [28].