T v Police HC Wellington CRI 2008-091-1598 [2009] NZHC 866 (22 July 2009)

Last Updated: 21 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CRI 2008-091-1598}

T

Applicant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 17 July 2009

Counsel: I M Antunovic and C Parkin for Applicant

T J Gilbert for Respondent

Judgment: 22 July 2009

RESERVED JUDGMENT OF RONALD YOUNG J (Application for costs)

Introduction

[1] On 25 March 2009 I discharged the applicant pursuant to s 347 of the Crimes Act 1961 on a count of rape. In my detailed reasons, released the following day, I concluded that the complainant’s credibility and reliability had been so undermined that no jury could rationally rely upon her evidence. Given her evidence was the

_{pivotal evidence for the Crown it followed the applicant had to be discharged.}

T V NEW ZEALAND POLICE HC WN CRI 2008-091-1598 22 July 2009

[2] The applicant now seeks a costs order pursuant to the Costs and Criminal Cases Act 1967 (“the Act”). A preliminary matter arises relating to what “costs” could be the subject of a s 5 claim.

Legal aid issue

[3] The application is for an award of costs pursuant to s 5 of the Act. The application says the applicant has incurred costs being:

a) legal aid costs of $14,697.00; and

b) private investigators (Mr Rowe) costs of $12,892.05.

[4] I note at hearing Mr Antunovic advised that there were further costs of another private investigator incurred of $1,350 together with a further claim in respect of expenses charged by Mr Rowe of $1,863.75 for the affidavit filed in support of the application for costs. Finally, counsel’s costs for this application were

$1,125.00

[5] Although the applicant was granted legal aid he was required to contribute

$7,540.00 towards the costs of legal aid.

[6] The first question therefore, is what costs – the whole legal aid grant, the applicant’s contribution or neither – could be the subject of an order under s 5. The relevant statutory provisions are:

5 Costs of successful defendant

(1) Where any defendant is acquitted of an offence or where the information charging him with an offence is dismissed or withdrawn, whether upon the merits or otherwise, or where he is discharged under [section 184F] of the Summary Proceedings Act

1957 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) of this section, 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 information was dismissed on a technical point:

(f) Whether the information 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 discharged or that any information charging him with an offence 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.

2 Interpretation

In this Act, unless the context otherwise requires,—

Costs means any expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal:

[7] Section 5(1), therefore, makes it clear that the Court is empowered, in identified circumstances, to make an order that a sum of money be paid, as the Court

thinks, “just and reasonable towards the cost of his defence”. The definition of costs are those expenses which are properly incurred by a party in carrying on a defence.

[8] Given those statutory provisions there can be no order for costs for that part of the legal fees paid by the Legal Services Agency. Such payments are not expenses incurred by the applicant. They are incurred by the Legal Services Agency when it agreed to fund the trial of the applicant on legal aid. Mr T could hardly expect to be paid a sum of money toward the cost of his defence, which he had never expended. Nor does there seem to be much point in having one state agency (Justice or Police) pay another state agency, (the Legal Services Agency) for legal fees.

[9] I am satisfied, however, that Mr T ’s contribution toward the legal aid grant is a payment he made toward the cost of his defence. They were expenses therefore properly incurred by him to carry on his defence.

Private Investigator Costs

[10] As to Mr Rowe’s fees the applicant says that these fees were not paid by Legal Services but by his father as a loan to the applicant. Thus, the applicant says these were fees incurred in carrying on his defence. This, the applicant says, should be the subject of consideration for payment under s 5.

[11] The definition of costs in s 2 makes it clear that the expenses must be “properly incurred” in carrying on a defence before this Court may consider the s 5 matters. When the expenses claimed are legal fees then there is an obvious inference they were properly incurred carrying on a defence. However, where, as here, the “costs” are private investigator fees then the Court will need to be satisfied they were properly incurred in carrying on the defence before they can be considered under s 5.

[12] Prior to the costs hearing there was no information provided as to what investigations Mr Rowe had undertaken. Mr Antunovic advised in oral submissions that he did not instruct Mr Rowe and accepted that except for two particular avenues of inquiry, Mr Rowe had not provided any information that could not have been

obtained by counsel for the applicant. Mr Antunovic identified fifteen hours of time incurred by Mr Rowe relating to an interview with a Ms Terrence and Mr M as being in this category. I will return to these interviews and the time claimed later in this judgment.

[13] I accept, however, that the fifteen hours is in the category of costs incurred in carrying on a defence. None of the other time incurred by Mr Rowe comes into that category.

[14] Given those conclusions, the legal fees that are subject to a claim for s 5 costs are $7,450.00 and the private investigators expenses properly incurred are fifteen hours. Mr Rowe’s sought hourly rate was $125. I note the rate at which such costs might be ordered is governed by s 13 of the Act and the regulations. I will return to these issues later in this judgment.

Section 5 factors

[15] Having identified the costs incurred which could be the subject of a s 5 claim I turn to s 5. Subsection (2) identifies the factors which the Court “shall” have regard to (where relevant) in deciding whether to grant costs, and if so, how much.

[16] This costs application is based in part on the proposition that the investigation and prosecution of this case was inadequate and therefore those factors set out in s 5(2)(a) to (d) inclusive are relevant.

[17] The applicant’s case is that the police should not have arrested him after the complaint rape and his interview with the police but should have continued the investigation especially questioning whether the complainant’s evidence was truthful.

[18] The applicant says the police should have taken into account:

1. the medical and ESR evidence which the appellant claims did not support the complainant’s evidence; and
2. the evidence of the complainant’s daughter which did not support the complainant’s evidence.

[19] As a result, they say the complainant should have been re-interviewed to challenge the accuracy of her account. Further, the applicant says that the following factors should have caused the police to reconsider whether to continue the prosecution against him:

1. the false allegations by the complainant against others of sexual and physical assaults;

b) the false allegations of theft by the complainant.

[20] In addition, counsel refers to those factors identified in my judgment of

26 March 2009 which were relevant to the complainant’s credibility and reliability alleging they should have convinced the police either not to charge him or not to pursue the prosecution against him.

[21] Before I deal with the specifics of the application I wish to make some observations about the difficult question of a police investigation when a police officer is alleged to have committed a crime.

[22] There is public interest, when any professional body is investigating its own members, in ensuring that there is no advantage to the member in being investigated by “one of their own”. Often, therefore, the complaint is heard that members of the professional body are “tougher on their own” than a non-member. Behind this idea is the importance of public trust and public confidence in such bodies. Members of professional bodies properly accept a high level of scrutiny. They understand a heightened level of scrutiny is appropriate as public reassurance. And so it is with the police investigating allegations of criminal offending against police officers. The public interest requires absolute confidence that such investigations, and if appropriate prosecutions, will be approached in an unbiased and vigorous way. The public confidence in the police force requires nothing less. Police officers

themselves will wish to protect the reputation of the force and they will want nothing less.

[23] Understandably, therefore, when police officers are faced with an allegation of criminal wrong doing, especially where serious wrongdoing is alleged, public interest may well dictate prosecution.

[24] In this case the essence of what happened was only known to two people, the complainant and the accused. To maintain confidence in the police force investigating police officers will be hesitant not to prosecute where the essential issue is one of credibility. In such circumstances resolution of credibility will generally properly be left to a jury or other fact finder. This approach to the prosecution of such crime can be seen as an appropriate “price” for maintaining public confidence in the police force. It is a “price” all members of professional bodies might expect to pay for the advantages they enjoy and to maintain confidence in their particular professional body.

[25] These observations are not intended to suggest that the fact that a person under suspicion of having committed a crime is a police officer somehow excuses the police from exercising the narrow discretion they have whether to prosecute faced with a complaint of a crime. Where, however, there is legitimate room to exercise that discretion and the suspect is a police officer it will be legitimate for the investigating officer to take into account the need to maintain public confidence in the police and in appropriate cases this may influence officers to prosecute. This is no more than taking account of the public interest as part of the prosecution guidelines.

[26] I make these observations in this case because of the content of the affidavits filed by Mr Rowe and Mr T . Both affidavits criticise the investigation and prosecutions of the case by the police. Both are misguided.

[27] Mr T claims a detective told him during the investigation he thought he (Mr T ) was innocent. Mr T suggests that this comment was based on the detective’s assessment, after interview, with the complainant and the applicant. I

note that Mr Rowe in his affidavit places some reliance on this statement. The detective involved denies ever having said such a thing.

[28] Firstly, whatever the detective’s view of who was telling the truth about the alleged rape, such an opinion could not have been given in evidence at trial. The issue of who was telling the truth and who was lying was the very issue for the jury. Nor, assuming the detective did make the remark (and I do not), is the fact that the detective believed the accused story relevant to costs. A detective’s opinion based on nothing more than his assessment of the likelihood a story is true is not a proper basis on which to decide whether to prosecute. If that were the case the detective would effectively take on the role of the fact decider as well as prosecutor. The detective’s function in deciding whether to prosecute is to assess the evidence against the prosecution guidelines, not to base it on his own feelings as to credibility of witnesses. Mr T ’s affidavit, therefore, did not assist me in assessing this application.

[29] Secondly, Mr Rowe’s affidavit. Mr Rowe was a detective and is now a private detective. He was hired by the applicant before trial to assist in his defence. Mr Rowe’s affidavit is wholly inadmissible for the purpose of this costs application.

[30] Firstly, it purports to work its way through the s 5(2) criteria and give Mr Rowe’s opinion on each factor the Court is directed to take into account in assessing a costs application. It is my function to undertake this analysis, not Mr Rowe’s. Most of the affidavit consists of Mr Rowe’s opinions. They are of no assistance whatsoever to this Court in this costs enquiry. Mr Rowe spends much of the forty-three pages of his affidavit recounting the evidence at trial and his opinion as to the credibility of the respective stories of Mr T and the complainant. None of this is admissible.

[31] When Mr Rowe wishes to emphasise a point in his affidavit he uses capital letters in bold type, also inappropriate in an affidavit. Other parts of his affidavit contain rumour, speculation and very unwise criticisms generally of the police approach to the prosecution of police officers. Mr Rowe’s views on this are

irrelevant to this application for costs. The affidavit is essentially a piece of advocacy. It is not the evidence of an expert witness objectively assessing evidence.

[32] The relevant evidence Mr Rowe could have given in an affidavit in support of a costs application was if prior to trial he had come upon relevant evidence unknown to the police which was provided to them. Depending on its importance and their reaction to such evidence this could be relevant to costs. There was no such material in Mr Rowe’s affidavit. As I have said there was much unfair and inappropriate criticisms of the police investigation in Mr Rowe’s affidavit. The proper course, in my view, is therefore for me to order that this affidavit be removed from the Court file as improperly filed and irrelevant. I therefore order the removal of the affidavit from the Court file.

Section 5(a)–(d)

[33] To return to the s 5 criteria. I have no doubt that the prosecution acted in good faith in bringing and continuing this prosecution. For reasons I have identified I consider the prosecution were correct to bring these proceedings in the particular circumstances they faced.

[34] In my judgment discharging the applicant I first identified a significant number of discrepancies in the complainant’s evidence at trial compared with her previous statements and previous evidence at trial. I contrasted her trial evidence with the deposition evidence of her daughter. There were other discrepancies I identified. I observed, however, that by themselves these differences and discrepancies would not have convinced me to discharge the accused even though they clearly would have significantly undermined the complainant’s credibility.

[35] I concluded that these factors together with evidence that the complainant had made a number of what seemed to be false allegations of criminal offending against other people, including other sexual offending against police officers, convinced me the jury could not rationally rely upon the complainant’s evidence. As I concluded in my s 347 judgment it was the combination of all factors, which led to my conclusion.

[36] When the complainant’s evidence was completed the Crown took a responsible position accepting, depending upon the view I took of the evidence, that a discharge under s 347 was an option properly open to me. In addition, I note that before the trial began counsel for the accused properly accepted that until the complainant’s evidence had been heard and tested, a s 347 application could not sensibly or responsibly be brought.

[37] I am satisfied that the police thoroughly investigated all of the relevant facts. I am satisfied that when they first charged the accused they did so properly and responsibly taking into account public interest issues together with the evidence. I am satisfied that they properly discovered all material they had relevant to the allegation and that they understood and accepted this was a continuing obligation to the defence. Most of the material on which the defence relied to cross-examine the complainant was provided by the police in this context. Some of the important material only came to the police notice immediately before or during trial.

[38] I am satisfied that the police were correct to continue the case to trial and to leave the question of whether the accused was guilty or not guilty to either a jury or if appropriate, a Judge.

[39] These conclusions effectively deal with those factors set out in s 5(2)(a) to (d)

inclusive.

Section 5(2)(e)

[40] As to s 5(2)(e), the information was not dismissed on a technical point but because the accused was not guilty.

Section 5(f)

[41] The applicant established, by the cross-examination of the complainant, that he was not guilty. I acknowledge that this required significant preparation and skill. I note as relevant here, that I was satisfied the matter should not go to the jury and

that I should discharge the applicant. This was, therefore, not a case on which I consider the jury could properly convict the accused. This factor significantly favours a costs award.

Section 5(g)

[42] In my view there was nothing about the applicant’s conduct which could be the subject of fair criticism. The Crown made the point that his involvement on an Internet dating site and the fact that he may have exaggerated his police training to the complainant were somehow relevant here. I reject that submission. I do not consider either of these factors had anything to do with the prosecution of this crime, nor were they relevant to the circumstances under which the applicant was charged with the crime or had the information dismissed. I express no view as to whether or not they may or may not have been wise.

[43] I have concluded that the public interest was in prosecuting Mr T . The police cannot be criticised for their decision to prosecute, nor for their approach to the investigation of this matter. On the other hand, the fact that I discharged the applicant illustrated that having heard the complainant’s evidence I was satisfied a rational jury could not convict him. The applicant co-operated with the investigation and in my view cannot be properly subject to any criticism. In those circumstances, on balance, I am satisfied that an order for costs should be made.

[44] An order for scale costs pursuant to the Costs in Criminal Cases Regulations 1987 is approximately $3,450 including an allowance for second counsel. In my view it was appropriate for the applicant to have second counsel. The Crown had two counsel. In this case there was a significant burden on counsel for the applicant. This amount of $3,450 is slightly less than one half of the contribution the applicant has to make towards his legal costs.

[45] Counsel for the applicant submitted that the circumstances in this case was such that an order beyond the maximum scale costs should be made pursuant to s 13(3) of the Act.

[46] Section 13(3) provides:

13 Regulations

...

(3) Where any maximum scale of costs is prescribed by regulation, the Court may nevertheless make an order for the payment of costs 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.

[47] I accept that this was a case of great importance to the applicant but that is not the test. The case was not factually complex, it involved a relatively narrow set of facts. It required meticulous preparation and careful cross-examination. But I cannot say it was a case that was within s 13(3). In any event even if I was satisfied I would not have made an order of more than fifty percent of the legal fees payable by the applicant.

[48] As to expenses. I am not prepared to make any order paying Mr Rowe’s expenses for the preparation of the affidavit in these proceedings for the reasons I have previously given. I am prepared to make a modest order relating to Mr Rowe’s enquiry of the two potential witnesses that I mentioned, Ms Terrence and Mr M.

[49] Ms Terrence was a flatmate of the complainant. The complainant’s relationship with Ms Terrence and the circumstances of an allegation of theft were of assistance in assessing the complainant’s credibility.

[50] Mr M was a previous husband of the complainant although the enquiries of him produced no valuable information.

[51] I think an appropriate allowance is $750 toward the cost of those interviews. No allowance is made with regard to any other private investigators costs.

[52] I accept the applicant should be mostly reimbursed the costs of this costs application. I allow $1,000.

[53] In summary, therefore, I make an order for costs under s 5 of the Act being:

a) Contribution of $3,450.00 towards the applicant’s legal costs;

b) An amount of $750 contribution towards the expenses incurred in

Mr Rowe’s investigations;

_{c) Legal fees of $1,000 for this application.}

Ronald Young J

Solicitors:

I M Antunovic, Principal, Wellington, email: [e-mail]

T J Gilbert, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [e-mail]