Police v Pearce [2012] NZHC 2007 (9 August 2012)

Last Updated: 21 August 2012

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-04 [2012] NZHC 2007

BETWEEN NEW ZEALAND POLICE Appellant

AND JASON WILLIAM PEARCE Respondent

Hearing: 9 August 2012

Counsel: M G Sinclair for Appellant

P S Coles for Respondent

Judgment: 9 August 2012

_{ORAL JUDGMENT OF MILLER J}

[1] The police appeal against an award of costs made against them in criminal proceedings. It followed a District Court prosecution which foundered when the Justices held that the defendant, Mr Pearce, had no case to answer. They awarded indemnity costs of $9,589.50 to Mr Pearce.

[2] On 2 December 2010 a motorcycle ridden by Clinton Newton collided with a patrol car under the control of Mr Pearce, who is a serving constable. The prosecution followed a pursuit in which Mr Newton had failed to respond to the patrol car’s flashing lights and siren. He had drunk alcohol and consumed cannabis, and his motorcycle was both unregistered and unwarranted. He conceded that he tried initially to evade police because he feared that his alcohol level would exceed the legal limit, and claimed that he continued to flee because he feared the patrol car would run him off the road.

[3] The pursuit ended after Mr Newton turned into a cul de sac where Mr Pearce stopped the patrol car. A second police car was also involved in the pursuit; it

NEW ZEALAND POLICE V JASON WILLIAM PEARCE HC PMN CRI-2012-454-04 [9 August 2012]

stopped on the other side of the street. Both cars had their red and blue lights and sirens working. The motorcycle collided with Mr Pearce’s car as Mr Newton sought to retrace his path.

[4] Mr Newton later pleaded guilty to dangerous driving and failing to stop.

[5] Mr Pearce was charged with careless use of a motor vehicle. The police alleged that the collision occurred because he had stationed the car on the wrong side of the road in the path of the fleeing motorcyclist, who had no time to stop. A defended hearing was held at Palmerston North on 3 October and 2 November 2011. Mr Newton was the principal police witness, but also called were the two police officers in the other police car, a police accident investigator, and a nearby resident, Ms Blackler.

[6] Mr Newton proved a difficult and argumentative witness, but his account was clear enough: he had turned at the end of the cul de sac and headed back when the police car came around the corner and stopped in front of him, leaving him no chance, despite heavy braking, to avoid the collision. He conceded that he had been travelling at about 80 kph as he accelerated towards the corner. He also conceded not only that he was affected by cannabis and alcohol but also that at the time he had claimed, when interviewed by the police, that he could not remember the collision. It also became apparent that he had an incentive to lie because by the time of the hearing he was being pursued by an insurer for damage to the police car.

[7] The two constables in the other police car were adamant that both cars stopped as Mr Newton was still in the turning area at the end of the cul de sac. The cars parked at an angle to the kerb but with sufficient room between them for Mr Newton to pass. He had ample time to stop. Instead he rode his motorcycle towards the gap between the cars and then seemed to swerve as he approached, striking Mr Pearce’s car. Their account was consistent with a statement made by Mr Pearce after the incident. No attempt was made to challenge their accounts in their evidence in chief.

[8] Ms Blackler also gave evidence that the patrol car was stopped when a motorcycle arrived and hit it. Her evidence was not contradicted either.

[9] The accident investigator offered a hypothesis consistent with Mr Newton’s evidence that the patrol car had turned in front of the motorcycle, although he could not exclude the possibility that the patrol car had stopped before the collision. But he had not been told that before braking Mr Newton had attained a speed of 80 kph. He had seen notes recording the account of one of the other constables, Constable Christiansen, but the notes did not include the constable’s evidence that Mr Pearce had stopped his car while Mr Newton was still turning at the end of the cul de sac. He had also seen a summary of Ms Blackler’s account. He had not been supplied with Mr Pearce’s statement. He readily conceded the obvious: that his hypothesis must be false if the accounts given by Mr Pearce and the prosecution witnesses other than Mr Newton were correct.

[10] At the end of the police evidence the Justices found there was no case to answer and dismissed the charge. A judgment was delivered. The Justices noted that the pursuit had been conducted for good reason, and found that Mr Newton had turned and accelerated towards the stationary police cars, between which there was enough room for him to pass. His accounts of the incident were inconsistent and conflicting, and he conceded that intoxication had affected his memory of the incident. They held that Mr Newton had caused the collision.

[11] Mr Pearce’s counsel, Mr Coles, then moved for indemnity costs under the Costs in Criminal Cases Act 1967. Submissions were filed on both sides and the application was decided on the papers.

[12] The Justices delivered a cryptic judgment. They recited that they had taken the Act into account, with particular reference to ss 5, 13 and “associated case law”. They cited Y v R[1] for the proposition that indemnity costs are appropriate when the prosecution should never have been brought. They then announced their decision awarding indemnity costs. One can safely infer that they believed the prosecution should never have been brought, but no other reasons were given for that conclusion.

[13] The Act confers on a court a discretion to order that a defendant in a prosecution which has been dismissed be paid such sum as the court thinks

reasonable towards the costs of his defence.[2] It is not enough that the defendant was acquitted.[3] The decision is discretionary, but the court must consider all relevant circumstances, including whether the prosecution had been brought in good faith, whether the prosecution had sufficient evidence to support a conviction in the

absence of contrary evidence, whether the prosecution had investigated anything tending to show the defendant might not be guilty, whether the investigation was conducted reasonably, and whether the information was dismissed because the defendant showed that he was not guilty.

[14] The police contend that there was in fact no basis for an award of costs, and there is no evidence that the Justices examined the relevant considerations. They also point out that the Costs in Criminal Cases Regulations contain a scale, from which the court may depart if the “special difficulty, complexity or importance of the case” warrant it,[4] and such cases are rare.[5] They submit that nothing about this case qualifies for an award in excess of scale, let alone full indemnity costs. Reasons were needed to justify any award, all the more so for an award in excess of scale. The absence of such reasons, they submit, render the decision bad in law.

[15] I accept that no adequate reasons were given for an award, let alone an exceptional award of indemnity costs. Reasons were needed in the circumstances. For this reason alone the appeal must be allowed. I will set the award aside and approach the question of costs de novo.[6] I have read the notes of evidence in the District Court, and I do not think it necessary to remit the matter to that court for reconsideration.

[16] Turning to the merits, there is no finding that the police persisted in this prosecution merely because Mr Pearce is a police officer and the police cannot be seen to favour their own. I accept that Mr Coles pointed out the defects in the case before the hearing; nonetheless, I do not think the record justifies me in drawing

_{inference that the prosecution was continued for that reason. Had that been the case,}

such motivation, however laudable in the abstract, would not shield the Ministry of Justice (which must ordinarily meet an award of costs as this was a Crown prosecution) or the police, under s 7 of the Act, from an award. The Act assumes that prosecutions will be brought following a reasonable investigation and in the belief that the evidence at the commencement of the case suffices to sustain a conviction in the absence of contrary evidence.

[17] The question in this case is whether the prosecutor ever had sufficient evidence for a conviction. That could be so only if the prosecution evidence would show, if accepted, that Mr Pearce stopped his car in the path of the oncoming motorcycle, leaving Mr Newton insufficient time and distance in which to stop.

[18] The police did have Mr Newton’s account. I accept that they need not dismiss what a given witness has to say on the ground that he is not a credible or reliable person. As a general proposition a prosecutor may take the view that such assessment is the court’s to make. For the same reason they need not accept Mr Pearce’s statement, which they did investigate by bringing in their crash investigator.

[19] However, the Act envisages in s 5(2) that a court will assess the sufficiency of evidence on the whole of the evidence which the prosecutor had at the commencement of the case. It anticipates that prosecutors will do likewise before coming to court. The singular feature of this case is that the prosecutor had and evidently accepted the evidence of three eyewitnesses, two police officers and one civilian, all of whom supported Mr Pearce’s account and ruled out that of Mr Newton. I say “evidently accepted” because no attempt was made to discount or challenge their evidence. (That is not to say that the prosecutor ought to have sought leave to cross-examine them; short of doing that, a prosecutor may highlight considerations such as distance from the incident, light conditions and obstructions to visibility and matters of that sort.)

[20] In these circumstances the evidence of Mr Newton, a witness who had reason to lie and an evident animus towards the police, was never going to prevail. The

prosecution was doomed from the outset. I agree with the Justices that it should never have been brought.

[21] That being so, it was open to the Justices to award costs. Approaching the matter de novo, I too consider that it is a proper case for an award.

[22] As to quantum, I accept Ms Sinclair’s submission that the legislation reflects the traditional New Zealand approach to costs, which is that awards represent a contribution to costs rather than an indemnity. If it were otherwise the legislation would not provide for a scale. Further, costs do not simply follow the result. Any uplift on scale must be justified by the “special difficulty, complexity, or importance

of the case”.[7] In such a setting indemnity costs must be very unusual. I find it

difficult to envisage such award being made in any case that did not involve bad faith. Mr Coles did invite me to draw that inference but for reasons already given I am not prepared to do so. I am prepared to accept that to continue the prosecution was at best careless.

[23] Nor is there anything in the record to suggest that an uplift on scale costs is warranted. There is nothing to suggest that the case required an unusual degree of investigation or legal research, for example. It turned on a simple question of fact.

[24] Accordingly, I quash the award of costs made in the District Court. I substitute an award as per scale under the Costs in Criminal Cases Regulations. Because I have found that the police were at least negligent in pursuing the matter, I direct under s 7(2) of the Act that the costs be paid by the police and not by the Ministry of Justice.

[25] There will be no award of costs on the present appeal.

Miller J

Solicitors:

Crown Solicitor’s Office, Palmerston North for Appellant

Broadway Legal Chambers for Respondent

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[1] Y v R HC Auckland T281/96, 21 July 1997.
[2] _{Section 5.}
[3] _{Section 5(4).}
[4] _{Section 13(3).}
[5] _{R v Mather and Brown HC Christchurch T33/97; T34/97, 26 July 1999.}

[6] Police v Hall HC Dunedin CRI-2008-412-40, 16 December 2008.

[7] Section 13(3).