Cavanagh v Police [2023] NZCA 57 (14 March 2023)

Last Updated: 20 March 2023

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

CA475/2022 [2023] NZCA 57

	BETWEEN	MARIA ELENA JEAN CAVANAGH Applicant
	AND	NEW ZEALAND POLICE Respondent

Court:	French, Ellis and Churchman JJ
Counsel:	Applicant in person B So for Respondent
Judgment: (On the papers)	14 March 2023 at 2.15 pm

JUDGMENT OF THE COURT

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

REASONS OF THE COURT

(Given by Ellis J)

[1] Ms Cavanagh was charged with trespass and resisting arrest following a tenancy dispute. The District Court subsequently dismissed the trespass charge under s 147 of the Criminal Procedure Act 2011 (CPA) and the police withdrew the charge of resisting arrest.^[1] Ms Cavanagh then applied for indemnity or (alternatively) scale costs against police under the Costs in Criminal Cases Act 1967 (CCCA).

[2] In general terms the CCCA provides that where a defendant is acquitted of an offence or where the charge is dismissed or withdrawn, on the merits or otherwise, the Court may order that they be paid such sum as it thinks just and reasonable towards the cost of their defence.^[2]

[3] The District Court declined her initial application for costs.^[3] Ms Cavanagh then appealed to the High Court, but her appeal was dismissed.^[4]

[4] Ms Cavanagh now seeks leave to bring a second appeal to this Court.

The events leading to the charges^[5]

[5] In January 2020, Ms Cavanagh moved into the spare room of a house in Christchurch that had been occupied by Mrs Jackson, who was 80. No formal tenancy agreement was signed but it was agreed rent would be $120 a week with the cost of electricity to be split.

[6] When, in response to the COVID-19 pandemic, New Zealand moved to a Level 4 Lockdown, Ms Cavanagh went to live in Timaru. She stopped paying rent or electricity expenses for the Christchurch property.

[7] When New Zealand moved back to Level 3, Ms Cavanagh returned to the Christchurch property but was asked to leave. She maintained that her tenancy continued and refused to do so. Mrs Jackson and her daughter telephoned the police.

[8] After discussion, police gave Ms Cavanagh a verbal trespass order. They gave her the opportunity to collect her personal items but she declined and drove off.

[9] After some time had passed, Ms Cavanagh went to the Christchurch Police Station and spoke to an officer who confirmed that the trespass notice was valid. Ms Cavanagh then left and drove back to the address and again asserted her rights to enter. Police were again called. Police offered to take Ms Cavanagh to a location of her choice or to arrange some temporary accommodation, on several occasion, but she declined. Police formed the view that Ms Cavanagh was not going to leave out of her own volition. Mrs Jackson had indicated she felt unsafe. A decision was made to arrest Ms Cavanagh at this point, but she was uncooperative. She was eventually lifted into the police van and spent a night in the cells.^[6] She was charged with trespass and resisting arrest. She was bailed the next day.

[10] Ms Cavanagh successfully applied under s 147 of the CPA to have the trespass charged dismissed.^[7] The Judge also gave leave to the police to withdraw the resisting charge, which they did.^[8]

The costs application

[11] Ms Cavanagh sought then costs under the CCCA. Section 5 of that act is the key provision. It provides:

5 Costs of successful defendant

(1) Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, the court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.

(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.

(3) There shall be no presumption for or against the granting of costs in any case.

(4) No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn.

(5) No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.

[12] The costs sought by Ms Cavanagh comprised:^[9]

(a) the costs of alternative accommodation following her trespass (approximately $4,300);

(b) the costs of her university books left at the property from which she was trespassed ($260.84);

(c) the costs of travelling to court ($100); and

(d) legal aid costs ($4,061.34).

The decisions below

District Court

[13] Judge Gilbert noted the CCCA affords the Court a wide discretion to do what it considers right when awarding costs, guided by the criteria in s 5 of the Act.^[10] He observed “costs” are defined in the Act as “any expenses properly incurred by a party in carrying out a defence” which, in his view, meant that Ms Cavanagh could only claim for legal aid costs.^[11] In terms of the relevant s 5 criteria, he found police had not acted in bad faith and agreed with their counsel that they could not have left the situation to play out “on its own devices”.^[12] He also found Ms Cavanagh’s own conduct had been contributory and noted that the matters advanced in support of the dismissal of the trespass charge were technical and not clear cut.^[13] As well, he observed that had the charge of resisting arrest not been withdrawn, it would likely have been sustained.^[14]

[14] Ultimately, the Judge did not consider Ms Cavanagh’s case was one where an award of costs was justified. He acknowledged she had spent a night in the cells and believed she had been significantly wronged but recorded his view that Ms Cavanagh had exacerbated the situation and so put the police into a position where they felt compelled to arrest her.^[15]

Appeal to the High Court

[15] In the High Court, Dunningham J agreed with the District Court Judge that the costs incurred by Ms Cavanagh in finding alternative accommodation could not properly be claimed as “costs of [her] defence”.^[16] She also agreed with the Judge’s assessment that police had done their best to ameliorate a difficult situation and that the later dismissal of the trespass charge did not undermine the validity of Ms Cavanagh’s arrest: the arresting officers had good cause to suspect that Ms Cavanagh had committed a trespass.^[17] And she agreed with the Judge that Ms Cavanagh had intentionally obstructed a constable in the exercise of his duties and had herself contributed to a tense situation.^[18] Ultimately, she concluded that there was no discernible error in the exercise of the broad discretion afforded to the Judge by the CCCA.^[19]

Should leave be granted for a second appeal?

[16] Under s 276 of the CPA, leave for a second appeal relating to a costs order must not be granted unless the relevant court is satisfied the appeal either involves a matter of general or public importance or a miscarriage of justice may have occurred or may occur unless the appeal is heard.

[17] A proposed appeal might raise “a matter of general or public importance” where it involves an issue of general principle or that is of wider importance in the administration of the law. An obvious example is where the proposed appeal raises a question of law that would have a broader application beyond the circumstances of the particular case.^[20] By extension, leave is often declined where the application raises issues of fact specific to the circumstances of a particular case.^[21]

[18] Here, the matters raised by Ms Cavanagh are plainly of great importance to her, but they arise from specific events that are particular to her. It cannot fairly be said that those matters have any wider (general or public) importance. The first criterion for leave is not therefore satisfied, and leave cannot be granted on that basis.

[19] Accordingly, the only question for us is whether a miscarriage may occur if the appeal is not heard. The threshold is undoubtedly a high one. This Court has declined to take a prescriptive approach to it. This limb may (but not must) be satisfied where it is reasonably arguable that the court below is in error.^[22] The approach to leave should also reflect this Court’s supervisory role in relation to aspects of criminal practice.^[23]

[20] We begin by recording that Ms Cavanagh’s claims for alternative accommodation costs following her trespass and for her books left behind are not tenably claimable under the CCCA. As the Judges below have said, while they are costs incidentally related to the events that led to the charges, they cannot be said to be “expenses properly incurred by a party in carrying out a defence”. So, any part of the proposed appeal relating to those costs is simply not arguable. Refusing leave is—to that extent at least—incapable of giving rise to a risk of miscarriage.

[21] That leaves the question of Ms Cavanagh’s legal aid expenses and, possibly, her travel costs.

[22] We acknowledge at the outset that, as Ms Cavanagh submits, s 5(5) of the CCCA states that “no defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued”. Conversely, however s 5(4) provides that “no defendant shall be granted costs ... by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn”. As s 5(3) makes clear, there is no presumption for or against the granting of costs in any case.^[24]

[23] We can discern no obvious error of principle by the Judges below and there is nothing to suggest that they took account of irrelevant considerations or failed to take account of a relevant ones. Although Ms Cavanagh seeks to take issue with their assessment of both the conduct of the police and her own conduct, the conclusions they reached (that police did what they did in good faith in an attempt to diffuse a difficult situation and that Ms Cavanagh had, to some extent, contributed to that situation) were plainly open to them. Similarly, we can discern no error in their conclusion that there was – despite its eventual withdrawal – an evidential sufficiency for the resisting charge and that the legal position in relation to the trespass charge was not without difficulty.^[25] As well, the position eventually taken by police, in not opposing the dismissal application and seeking leave to withdraw the resisting charge (on public interest, rather than evidential sufficiency, grounds) seems to us a wholly responsible one.^[26]

[24] It follows we can see no risk of miscarriage if the appeal is not heard.

Result

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










Solicitors:
Crown Law Office, Wellington

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^[1] Police v Cavanagh [2021] NZDC 22627 [dismissal judgment].

^[2] Costs in Criminal Cases Act 1967 (CCCA), s 5(1).

^[3] Police v Cavanagh [2022] NZDC 5549 [District Court judgment].

^[4] Cavanagh v Police [2022] NZHC 2174 [High Court judgment]; additionally, a related complaint made by Ms Cavanagh to the Independent Police Complaints Authority about the conduct of the police in her case has also been dismissed.

^[5] The factual narrative is taken from the District court judgment, above n 3.

^[6] Ms Cavanagh says her treatment in the police station was unprofessional and dehumanising.

^[7] Dismissal judgment, above n 1, at [13]; police did not, ultimately, oppose the dismissal.

^[8] Dismissal judgement, above n 1, at [7] and [13], it was agreed that it was not in the public interest to pursue the charge.

^[9] $8,680.64 was the figure given as the combined costs sought in in both the District Court judgment (at [2]) and the High Court judgment (at [2]), it is a little lower than the sum total of the costs listed here. It was presumably calculated by reference to the precise amount of accommodation costs. As well, the District Court makes no reference to a separate claim for travelling costs, but rather has an additional $100 added to the figure for the accommodation costs.

^[10] District Court judgment, above n 3, at [27]-[29].

^[11] At [27] and [31]; and CCCA, s 2.

^[12] At [35].

^[13] At [40].

^[14] At [44].

^[15] At [43] and [47].

^[16] High Court judgment, above n 4, at [39].

^[17] At [40]-[42] and [46].

^[18] At [46].

^[19] At [47].

^[20] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].

^[21] At [36].

^[22] In the context of a second costs appeal, this Court in Allison v R [2021] NZCA 140 dismissed an application for leave on the basis that the Court was “not persuaded that there is a sufficiently arguable case of prosecutorial bad faith such that the further appeal should be allowed...” (at [29]).

^[23] McAllister v R, above n 20, at [39].

^[24] Moreover, because costs involve the exercise of discretion, the onus is on an appellant to demonstrate that the decision below is based on some error of principle, or that the Judge took account of irrelevant considerations, failed to take account of a relevant consideration or was plainly wrong.

^[25] District Court judgment, above n 3, at [40] and [44]; High Court judgment, above n 4, [43]-[44]; further, as we understand it, the foundation for the charge was in doubt because Ms Cavanagh maintained that she had a right (as tenant) to be on Mrs Jackson’s property. Although we express no view on the point that issue may not be entirely clear-cut, given that the tenancy was an oral one and Ms Cavanagh had not been living there or paying rent for a number of weeks.

^[26] We note that our view of the police conduct in this matter is consistent with the outcome of Ms Cavanagh’s complaint to the IPCA.