Greendrake v McConnochie [2023] NZCA 537 (30 October 2023)

Last Updated: 6 November 2023

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

CA233/2023 [2023] NZCA 537

	BETWEEN	EUGENE ANTHONY GREENDRAKE Appellant
	AND	WAYNE ALEXANDER McCONNOCHIE Respondent

Court:	Mallon, Moore and Palmer JJ
Counsel:	Appellant in person No appearance for the Respondent
Judgment: (On the papers)	30 October 2023 at 4 pm

JUDGMENT OF THE COURT

The appeal is allowed. The High Court costs order is quashed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Palmer J)

• [1] Mr Eugene Greendrake, the appellant, failed in a private prosecution of Mr Wayne McConnochie, the respondent. The High Court awarded costs against Mr Greendrake for his failed application for leave to appeal that decision.^[1] Mr Greendrake appeals against the award of costs.

What happened

• [2] On 19 August 2018, Duckie and Drakie were freely and happily wandering together. They were two domestic Pekin ducks who usually enjoyed the pond on the rural property of Mr Greendrake in Nightcaps, Southland. On this occasion, they were at the entrance of part of the neighbouring farm of Mr McConnochie. They were attacked by a dog and suffered significant injuries that do not need to be recounted. Drakie was found dead in the nearby stormwater creek shortly afterwards. Duckie was found the next morning, still alive but very weak. She recovered after 12 days of veterinary assistance.
• [3] Mr Greendrake brought a private prosecution against Mr McConnochie under s 57(2) of the Dog Control Act 1996 and s 28A of the Animal Welfare Act 1999. This led to several court decisions:

(a) On 29 September 2021, there was a one-day trial in the District Court at Invercargill, where Mr Greendrake gave evidence and called four witnesses and Mr McConnochie gave evidence. Judge Walker declined an application under s 147 of the Criminal Procedure Act 2011 (the CPA) to dismiss the charges.^[2] However, the Judge held that the elements of both charges were not made out and there was significant doubt about whether Mr McConnochie was the owner or possessor of the dog in question.^[3]

(b) Mr Greendrake applied for leave to appeal on a question of law. On 10 June 2022, in a 101-paragraph judgment, Osborne J in the High Court declined the application, stating:^[4]

[99] Ultimately it is my finding that the proposed grounds of appeal have no merit. In essence, Mr Greendrake’s complaints combine to the central proposition that the Judge reached an incorrect factual conclusion when determining that Mr Greendrake had not established it was Mr McConnochie who was in charge of the (black) dog that attacked Mr Greendrake’s ducks. That was a conclusion clearly open to the Judge on the basis of the evidence presented.

(c) On 21 December 2022, Judge Walker awarded costs of $10,000 against Mr Greendrake for the failed prosecution.^[5] He could not go as far as finding a lack of good faith in bringing the proceedings, but considered Mr Greendrake “took a somewhat blinkered approach” to the prosecution.^[6] He found the fact that no other prosecutorial agency was prepared to prosecute should have indicated his likely prospects of success.^[7] Given the presentation, memory, age, infirmity, and health issues of his eyewitness, it should have been obvious to Mr Greendrake from the outset that his case would not reach the evidential threshold required.^[8] He did not consider it necessary to make a deterrent award of costs but considered 40 per cent of actual costs was not unreasonable.^[9]

(d) On 6 April 2023, Osborne J awarded costs of $4,500 against Mr Greendrake for the failed application to the High Court for leave to appeal.^[10] This is the decision under appeal here.

(e) On 14 August 2023, Dunningham J allowed Mr Greendrake’s appeal against the District Court’s costs decision.^[11] She agreed that his prosecution failed as a result of significant inadequacy in the evidence on the day.^[12] But she held there was no basis for exceeding the maximum scale costs of $452 under the Criminal Cases Regulations 1987 (the Regulations).^[13] She held the fact the key eye-witness did not come up to brief was not evidence of a procedural failing.^[14]

Costs in criminal cases

• [4] Section 5 of the Costs in Criminal Cases Act 1967 (the CCC Act) empowers a court to order that an acquitted defendant be paid “such sum as it thinks just and reasonable towards the costs of his defence”. This Court has held that the burden in s 5 is difficult to surmount.^[15] Where any order is made under s 5, s 7(2)(b) provides that a court may direct the defendant’s costs be paid by a person who, in the court’s opinion, “has acted negligently or in bad faith in bringing, continuing, or conducting a prosecution”.
• [5] Section 8 applies to criminal appeals. It provides:
  8. Costs on appeals

(1) Where any appeal is made pursuant to any provision of Part 6 of the Criminal Procedure Act 2011 the court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.

(2) No defendant or convicted defendant shall be granted costs under this section by reason only of the fact that his appeal has been successful.

(3) No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.

(4) No Judge, Justice, or Community Magistrate is liable to costs just because an appeal is filed against a determination by that judicial officer.

(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.

(6) If the court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.

• [6] A court has a discretion under s 8 of the CCC Act, and s 8 provides little guidance about when a court should exercise its discretion.^[16] However, this Court has held that there must be good grounds for making an award.^[17] In W (CA447/2017) v R, this Court elaborated:^[18]

[15] Fifthly, appeal costs under s 8(1) of the CCCA remain within the scope of this Court’s jurisdiction. But in our view, there must be something significantly out of the ordinary to justify an award of costs on a criminal appeal. Success does not of itself justify such an award. Criminal process is part of public, rather than private law, and a different view is taken of costs in that framework. Those convicted of crimes are seldom required to pay any meaningful contribution to the further consequences of their offending — viz the costs of their prosecution. The same is not quite true of the prosecution, where its target is acquitted. In such a case it may have to pay a contribution, perhaps a substantial contribution to costs. But as s 5(2) indicates, in the trial context that rather depends on what might broadly be called prosecutorial misconduct or overreach, bearing in mind that it is the Crown which pays if an order is made in favour of the defendant. Although s 8 is set in evidently less constrained terms when it comes to the appeal context, we do not think a different approach really applies. None of the cases under s 8, in this Court or the High Court, suggest a more extended basis for award. It follows that an ordinary criminal appeal involving trial counsel error or judicial misdirection is most unlikely to garner a costs order.

• [7] The Regulations made under the CCC Act prescribe a maximum scale of costs payable. Section 13 of the CCC Act provides that a court may make an order in excess of that scale “if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.

Decision under appeal

• [8] In the decision under appeal, the High Court cited the District Court, in its costs decision, as correctly identifying the relevant sections as ss 5, 7, 12, and 13 of the CCC Act and associated regulations.^[19] The Judge held that the discretion to award costs arose because Mr Greendrake’s unsuccessful leave application was meritless.^[20] For the reasons analysed by the District Court, it “lacked from the outset sufficient evidence to support the conviction”.^[21] The Judge said that “[t]his is a case that warrants a significant award of costs as compensation to Mr McConnochie on account of the costs he incurred”.^[22] Having “some regard” to the costs in civil litigation on a 2B basis, the Judge considered $4,500 would be a just and reasonable award and ordered Mr Greendrake to pay that amount.^[23]

Submissions

• [9] Mr Greendrake submits that the High Court relied on the wrong principle in awarding costs, ignoring the “something out of the ordinary” principle. Granting costs against an applicant just because the court finds the arguments meritless is penalising for lack of clairvoyance. The prosecution was not plainly hopeless, frivolous, vexatious, or maliciously advanced. The application for leave to appeal was not meritless. Some of the questions in it required a deep and thorough (though disputable) assessment by the High Court and one question was not addressed. There was no lawful basis for awarding more than scale costs. The rules for costs in civil litigation are irrelevant. And because the High Court’s decision was determined on the papers, there was no “time occupied in court” which is the basis for calculating costs under sch 1 of the Regulations.

Should costs have been awarded?

• [10] The High Court’s decision on the papers, that declined Mr Greendrake leave to appeal, was a lengthy, detailed, and thorough examination of eight alleged errors of law. As Mr Greendrake submits, it is more like a judgment about the appeal itself. For example, Mr Greendrake submitted that the District Court Judge erred in law in refusing to allow a courtroom identification of Mr McConnochie by the key eyewitness. The High Court found that the key eyewitness knew her neighbour well enough to dispense with a formal identification procedure.^[24] However, after discussing various appellate and English authorities regarding the perils of dock identification, the Judge held that the prosecutor could have elected to pursue an alternative way of dealing with identification and so the District Court’s approach did not involve an error of law.^[25]
• [11] The Judge ultimately found that the proposed grounds of appeal had no merit and so declined leave to appeal. But success alone is not a sound basis for the award of costs to a defendant in a criminal appeal, as s 8(2) makes clear. The same applies to an application for leave to appeal.^[26] The length of the reasoning required by the High Court to reach the conclusion that leave should not be granted do not support the exercise of the discretion to award costs under the CCC Act.
• [12] The High Court did not explicitly identify the provisions of the CCC Act under which it granted costs. Section 5 applies where a defendant is acquitted and empowers the court to “order that he be paid such sum as it thinks just and reasonable towards the costs of his defence”. The costs of an application for leave to appeal is not naturally encompassed within the costs of defence. Section 8 applies “where an appeal is made pursuant to any provision of Part 6 of the Criminal Procedure Act 2011” and empowers a court “which determines the appeal” to order costs. Part 6 of the CPA requires and encompasses applications for leave to appeal. Section 213(4) of the CPA provides that “[t]he duty of an appeal court to determine an appeal is subject to any leave requirements being met”. Accordingly, we consider that the scheme and purpose of the CPA suggests that s 8 is the most appropriate section under which the costs of applications for leave to appeal should have been considered.
• [13] We do not consider there are good grounds on which to award of costs under s 8 here. There was no lack of good faith in applying for leave to appeal. Nor was the application frivolous or vexatious. The proposed appeal did not involve a novel issue or difficult point of law. There was nothing significantly out of the ordinary.
• [14] The consideration the High Court considered most supportive of the award was whether the prosecution had sufficient evidence at the commencement of the proceedings to support conviction in the absence of contrary evidence. The High Court considered it did not, for the reasons analysed by the District Court. But the award of costs in respect of an application for leave to appeal requires consideration of the circumstances of that application, rather than a focus on the underlying prosecution. And, as Dunningham J subsequently found in relation to the District Court’s costs decision, the prosecution failed as a result of evidential inadequacy on the day.^[27] That is not out of the ordinary.
• [15] We do not consider there was anything to justify an award of costs on the application for leave to bring the criminal appeal here. We consider the decision to exercise the discretion to award costs for an application for leave to bring the criminal appeal was wrong. We would reach the same conclusion if the decision on costs had been governed by s 5.
• [16] Even if the discretion to award costs had been soundly exercised, there was no basis for exceeding the maximum scale costs, as the High Court found in relation to the District Court’s award of costs.

Result

• [17] The appeal is allowed. The High Court costs order is quashed..

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^[1] Greendrake v McConnochie [2022] NZHC 778 [High Court costs decision].

^[2] Greendrake v McConochie [2021] NZDC 19459 [District Court substantive decision] at [32].

^[3] At [47].

^[4] Greendrake v McConnochie [2022] NZHC 1369 [High Court leave decision].

^[5] McConnochie v Greendrake [2022] NZDC 25061 [District Court costs decision].

^[6] At [53].

^[7] At [54].

^[8] At [56].

^[9] At [57] and [59].

^[10] High Court costs decision, above n 1.

^[11] Greendrake v McConnochie [2023] NZHC 2166 [High Court costs appeal].

^[12] At [37].

^[13] At [43].

^[14] At [47].

^[15] R v Lyttle [2022] NZCA 52 at [18(e)].

^[16] R v Kerr (No 2) CA60/91, 15 April 1992 at 2.

^[17] See R v Leitch CA195/97, 22 December 1997 at 1; R v Rust [1998] 3 NZLR 159 (CA) at 162–163; and Hancock v R [2012] NZCA 397 at [10]–[11].

^[18] W (CA447/2017) v R [2020] NZCA 283 (foonotes omitted).

^[19] High Court costs decision, above n 1, at [12].

^[20] At [11].

^[21] At [13].

^[22] At [14].

^[23] At [18].

^[24] High Court leave decision, above n 4, at [46].

^[25] At [53].

^[26] See Graham v R [2015] NZSC 138 at [4].

^[27] High Court costs appeal, above n 11, at [47].