Northland Regional Council v Bayly [2024] NZDC 18969 (13 August 2024)

Last Updated: 25 August 2024

IN THE DISTRICT COURT AT WHANGĀREI

I TE KŌTI-Ā-ROHE

KI WHANGĀREI-TERENGA-PARĀOA

[2024] NZDC 18969 CRI-2022-088-001315

NORTHLAND REGIONAL COUNCIL

Prosecutor v

PHILIP BAYLY

PHILIP BAYLY FAMILY TRUST DANIEL ADAMS

LAWRENCE P TAKIMOANA

Defendants

Hearing: In Chambers on the papers Submissions: A Goodwin for the Prosecutor

W McCartney for Mr Philip Anthony Bayly and the Philip Bayly Family Trust

Judgment: 13 August 2024

COSTS DECISION OF JUDGE P A STEVEN

Introduction

[1] On 10 July 2024, the court held a pre-trial hearing to determine the admissibility of propensity evidence in a trial involving four defendants charged with offending under the Resource Management Act 1991 (‘RMA’).

[2] The Crown filed legal submissions in support of the propensity evidence application on 19 June 2024. Mr McCartney filed legal submissions dated 4 July 2024 for Mr Philip Anthony Bayly and the Philip Bayly Family Trust (who I refer to

NRC v BAYLY & ORS - COSTS

as the Bayly defendants).

[3] In his written submissions, Mr McCartney addressed the Crown’s application to adduce propensity evidence while also addressing the application filed on behalf of his clients for late notice of a statutory defence under s341(3) RMA.

[4] The Crown had not addressed that application in its written legal submissions, although on 8 July 2024 the Crown had filed a memorandum in advance of the hearing stating that the hearing scheduled for 10 July 2024 was to hear:

• (a) the Crown’s application to lead propensity evidence at trial;
• (b) the application by the Bayly defendants to dismiss charges under s147 of the Criminal Procedure Act 2011;1 and
• (c) the application by the Bayly defendants for leave to file a s341 notice under the RMA out of time.
  

[5] At the hearing, the Crown stated that it would not oppose the court granting leave for the late s341 notice once the notice was filed in final form. Counsel stated that the Crown only opposed the draft form of the notice accompanying the application for leave to file out of time. Mr McCartney did not need to speak to his pre-prepared written submissions on that application.

[6] On 24 July 2024 and following filing of a the ‘final’ form of that notice, I issued a Minute recording that I had granted the application by the Bayly defendants for leave to file the s341 notice out of time.

The costs application

[7] Following receipt of that Minute, and on behalf of the Bayly defendants, Mr McCartney made an application for costs under s364 of the Criminal Procedure Act 2011 (‘CPA’) in the sum of $1,000 against the Crown.

1 Which was withdrawn at the hearing.

[8] The application states that the Bayly defendants incurred costs associated with Mr McCartney’s preparation of written submissions on the application for leave expecting that the Crown would oppose that leave.

[9] Mr McCartney set out a summary of the background communications on the application for leave which he had brought to the Crown’s attention on 6 September 2023. Mr McCartney filed this memorandum on behalf of the Bayly defendants in preparation for the case review hearing on 11 September 2023. Mr McCartney attached a draft notice of defence to that memorandum.

[10] In that memorandum, Mr McCartney recorded his understanding that the application would not be opposed by the Crown, although on 8 September 2023 the Crown filed a memorandum for the case review hearing stating inter alia that this was incorrect insofar as it had stated that the late notice of defence would not be opposed, as “... the granting of leave to pursue a section 341 defence would cause prejudice to the Crown ...”.

[11] The Crown’s September 2023 memorandum further states that if the court is minded towards granting the defence leave to pursue a s341 defence, the prosecution seeks that the defence file an application for leave that meets the requirements of s314(3)(a) and (b) and file an application for leave explaining grounds for delay in the notice. The Bayly defendants filed the application in November 2023.

[12] A further case management hearing occurred in February 2024. The record sheet records that all defendants were likely to file applications for leave to file notices under s341, although as Mr McCartney notes, he had already filed application for the Bayly defendants.

[13] The two remaining defendants, Mr Adams and Mr Takimoana, signalled that they would be making applications for late notice of a defence. The applications were subsequently filed and granted by the court. The Crown did not oppose either application.

[14] In the costs application, Mr McCartney is critical of the accuracy of the

Crown’s communication as to its position on the application by the Bayly defendants.

[15] He noted that prior to the 10 July 2024 hearing, the Crown had communicated its continued opposition to the late notice of the s341 notice sought by the Bayly defendants, despite not having opposed the later applications by Mr Adams and Mr Takimoana.

[16] Mr McCartney stated that the Crown not previously explained that its opposition was attributable only to the notice being in ‘draft’ form.

[17] Mr McCartney stated that the Crown’s explanation as to the basis for the ground opposition was “demonstrably false”.

[18] Mr McCartney said that if the “draft” form had been the Crown’s single cause of concern the Crown could have said that in its memorandum of 8 September 2023, following receipt of Mr McCartney’s memorandum filed on 6 September 2023. Mr McCartney explained that he only filed the notice as a draft pending the court granting leave.

The Crown’s response to application

[19] The Crown responded to the application for costs, stating that at no time has the Crown misled the court regarding its position on the late filing of the defence s341 notice, further stating that the issue has only ever been about the draft form of the notice.

[20] Counsel refers to the call over on 12 February 2024 where the court directed all defendants to file s341 notices together with a formal application for leave to file the notice out of time.

[21] Counsel then notes that the judge also directed the Crown to review the applications and to advise its position, which duly occurred. Counsel notes that the newly appointed amici for the other two defendants, (Mr Takimoana and Mr Adams) had subsequently complied with that direction. As further directed, the Crown

reviewed the applications for leave duly filed by these defendants, stating that the Crown did not oppose either.

[22] However, the Crown’s memorandum was vague as to the applications it was not then opposing. The record shows that the applications that were filed after that February 2024 call over were the applications filed for Mr Adams and Mr Takimoana; the Bayly defendants had filed the application in November 2023.

[23] The Crown’s memorandum fails to provide an adequate response to Mr McCartney’s assertions as to the basis on which the application by the Bayly defendants would be opposed.

[24] The court can only proceed on the basis that the Crown’s original ground of opposition was based upon prejudice to the Crown; the Crown had stated that in a memoranda filed by the Crown in September and November 2023.

[25] Anticipating Crown opposition to that application, written submissions in support of the application had been filed by Mr McCartney in advance of the 10 July 2024 hearing, earlier noted. In a memorandum filed two days’ prior to the hearing, the Crown identified issues that were to be the subject of that hearing as including the Bayly s341 application in relation to the late notice.

[26] If the Crown was only opposing the application on the basis of its form, it ought to have stated as much. I am satisfied that the Crown has put the Bayly defendants to unnecessary additional cost in counsel’s preparation in support of this application, and that the Crown has not provided adequate explanation as to its changed position.

Costs under the CPA

[27] Under the CPA, the court may make a cost award even if the defendant has not yet been convicted, or is eventually discharged or the charge is dismissed, by s364(5). Moreover, s364(9) and ss (2)-(8) do not limit or affect the CPA.

[28] However, I agree with the Crown that I am unable to award costs under s364

CPA; the court is only able to make an award in cases where there has been a procedural failure. The CPA defines this as “a failure or refusal to comply with the requirements imposed by or under the Criminal Procedure Act 2011, the Criminal Disclosure Act 2008 or any associated regulations under the said Acts”.

[29] A procedural failure must be significant, and costs can only be awarded if there is no reasonable excuse for that failure.

[30] On this occasion there has not been a procedural failure under the relevant statutes or regulations.

[31] Accordingly, I decline the application for costs.

P A Steven

District Court Judge and Environment Judge