Hall v Police [2014] NZHC 1508 (1 July 2014)

Last Updated: 21 July 2014

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-7 [2014] NZHC 1508

BETWEEN	ROGER GRAHAM HALL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 June 2014
Counsel:	D Prasad for Appellant T C Tran for Respondent
Interim Judgment:	1 July 2014

_{INTERIM JUDGMENT OF GODDARD J}

This judgment was delivered by me on 1 July 2014

at 4.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Holland Becket, Tauranga for Appellant

Crown Solicitors Office, Hamilton for Respondent

HALL v NEW ZEALAND POLICE [2014] NZHC 1508 [1 July 2014]

Introduction

[1] This is an appeal out of time against a decision of the District Court in relation to costs on 10 June 2013.

Should leave to appeal out of time be granted?

[2] The High Court may, at any time, extend the time allowed for filing the notice of appeal or notice of application for leave to appeal.¹ The touchstone for granting an application is the interests of justice in the particular case. The appellant submits that, following the costs decision in the District Court, the appellant instructed his then counsel to appeal. On 9 May 2013, counsel was diagnosed with a terminal illness and was required to undergo surgery involving weeks of recuperation

and then further treatment.

[3] The respondent has quite properly adopted a neutral stance to the application. [4] I am satisfied that it is in the interests of justice to grant leave to appeal out of

time in the circumstances of this particular case.

Background facts

[5] On 5 March the appellant was charged with breaching s 5(1)(c)(i) of the Road

User Charges Act 1977 and r 5(3) of the Road User Charges Regulations. Section

5(1)(c)(i) requires a person operating a motor vehicle to have a distance recorder fitted in accordance with the provisions of any regulations made under the Act. Regulation 6(3) requires a hubodometer fitted to a motor vehicle to be affixed in such a manner that it accurately records the distance travelled by the vehicle; that its face, unique serial number and the distance travelled are readable from outside the vehicle; that its axis of rotation is central and parallel to the axis of rotation of the axle or wheel to which it is affixed; and that it is not readily detachable without the use of any tool.

[6] The appellant was the owner of a truck stopped by Police on 5 March 2012. It was accepted by the driver of the vehicle that the hubodometer, although correctly fitted, could not be read from the outside of the vehicle.

Sequence of events

[7] On 5 May 2012, then counsel for the appellant wrote to the Police advising that a plea of not guilty would be entered to the charge and that the matter would therefore need to be adjourned for a defended hearing. A series of background facts was set out in the letter relevant to the defendant and the business operated by he and his wife, as well as information about their previous good record and the absence of any convictions. A number of further mitigating factors were also traversed and the Police were invited to consider withdrawing the charge against the appellant. Amongst the facts put forward were that the hubodometer had been fixed in a manner that complied with the Regulations but it was unable to be read from the outside at the time because it was obscured by a stain originating from the inside of the hubodometer.

[8] Whilst the prosecution accepted that the Regulations had been satisfied at the time of the initial installation of the hubodometer, the prosecution maintained that the Regulations required an ongoing obligation to ensure that the hubodometer did not deteriorate after its initial installation. This was the given advice following a review of the file by the Police prosecutor.

[9] A status hearing was subsequently held on 12 November 2012. The appellant was represented by then counsel at the hearing. The only note available from that hearing, made by the prosecutor, is to the effect that no discussions of any moment occurred.

[10] The defended hearing took place on 25 January 2013. At the conclusion of the prosecution case, then counsel for the appellant submitted a legal authority, to the effect that there was no continuing obligation to ensure readability of a hubodometer after installation.² Therefore there was no such charge as that brought against the

appellant. The prosecutor, who had not been aware of this authority, requested an adjournment, which was granted.

[11] On 30 January 2013, the prosecution filed a memorandum conceding the situation and requesting the charge be dismissed. The presiding Judge, Judge Spiller, dismissed the charge on the basis of that advice, presumably for want of jurisdiction.

[12] On 29 April 2013, then counsel for the appellant filed an application seeking costs.

[13] On 10 June 2013, the Court sent an email to counsel advising that Judge Spiller had dismissed the application for costs on the papers. No formal decision or minute was issued by the Judge and no reasons were given by him.

Costs in criminal cases

[14] Section 5(1) of the Costs in Criminal Cases Act 1967 (the Act) 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.

[15] Where costs are appropriate, the Court will then consider the quantum of costs to be awarded. Section 13 of the Act provides for the making of regulations regarding the maximum scale of costs that may be ordered to be paid upon a successful costs application. The scale for fees is determined by the Costs in Criminal Cases Regulations 1987, Schedule 1, Part 1, which provides that the maximum fee for conducting a prosecution or defence in a case, including all matters and proceedings connected with or incidental to the case is $226 for each half day or part half day occupied in Court.

[16] Under s 13(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. The criterion for such an award derives solely from the Court’s consideration of what is

just and reasonable in the circumstances.³

[17] A number of authorities were referred to by Mr Prasad on behalf of the appellant.

[18] In McIntosh v Police, Harrison J found: ⁴

There is no presumption for or against granting costs in any case. On this appeal, considering all the circumstances, I repeat my satisfaction that Dr McIntosh should never had been charged. A fair and balanced

³ Reriti v Police DC Christchurch CRN3009023671, 18 April 1994, cited in Adams on Criminal

_{Law [online looseleaf edition] at [CC13.01].}

⁴ McIntosh v Police HC Hamilton AP1/03, 2 April 2003.

investigation would have led the police inevitably to this conclusion. Accordingly, I am satisfied he should be awarded costs.

I have a discretion under s 13(3) to make an award in excess of the scale prescribed by the regulations. ... In terms of s 13(3) I am satisfied that this case has special importance to Dr McIntosh, as is evidenced by his defence at the hearing and his appeal to this Court. In my judgment the amount sought by Mr Wilson of $1500 is both modest and fair. I order the police to pay Dr McIntosh that amount accordingly. I do not make any award for payment of an expert’s fee.

[19] In Reriti v Police, Judge Erber said:⁵

... where the defendant/accused should never have been charged because he was innocent of wrongdoing and the prosecution knew or ought to have known that, in my judgment it cannot be said that he should bear any of the costs of demonstrating that innocence to a court. This would be the case where the innocent person is prosecuted in bad faith or as a result of inexcusable negligence on the part of the prosecution. It is quite clear that the breadth of the power of the Court under s 5(1) is not trammelled by the specific criteria set out in s 5.

[20] In Reriti v Police, the Judge concluded that “special difficulty” existed because the evidence that the Police possessed was inexplicably and carelessly interpreted by the Police. The defence had also informed the prosecution of the paucity of evidence which, if the prosecution had considered that information, would have revealed that the prosecution should not have continued.

[21] Full indemnity for costs are rare, but may be available where the prosecution should never have been brought⁶ or in exceptional cases involving bad faith or gross misconduct.⁷ The decision is a matter of discretion for the Court.

Submissions

[22] For the appellant, Mr Prasad submitted that costs are appropriate in this case for several reasons. First, he contended that the prosecution had acted in bad faith by wrongly proceeding with the matter without reviewing the relevant legislation, regulations or case law until after the hearing date. Mr Prasad said all major legal research databases provide a detailed commentary on this area of the law and the

_{decision in Coupland, which was easily researched, made it clear that no offence was}

⁵ _{At 20.}

⁶ _{Y v R HC Auckland T281/96, 21 July 1997.}

⁷ R v Mather HC Christchurch T33/97, 26 July 1999.

committed where a hubodometer had deteriorated after being correctly fitted. Secondly, the prosecution had failed to take proper steps to investigate the issues raised in former counsel’s letter, suggesting that the defendant might not be guilty. Thirdly, the investigation into the offence was not conducted in a reasonable and proper manner. Fourthly, the appellant was cooperative with the prosecution. In accordance with Reriti v Police, indemnity costs were appropriate in this case because the proceedings should never have been brought and because this is an issue of special importance to the appellant.

[23] While Mr Tran for the respondent accepted that, in the absence of reasons for Judge Spiller’s decision, it is appropriate for this Court to consider the question of costs afresh, he submitted that the Police had acted in good faith and had made a considered assessment to proceed with the prosecution. He refuted the assertion that the prosecution had not reviewed the relevant legislation, regulations or case law until after the hearing date. However, he conceded this was the first time the prosecutor concerned had prepared for a defended hearing and that she had clearly not correctly picked up on the law. Mr Tran said former counsel’s letter of 4 May

2012 had not alerted the prosecution to the authority in Coupland warranting the dismissal of the charge.

[24] Mr Tran further said that the failure of the defence to alert the prosecution to the authority in Coupland at an earlier stage had resulted in the unnecessary costs incurred by the appellant. Had the appellant raised the matter with the Judge at the status hearing that earlier took place, the prosecution would have reviewed the matter at that stage and withdrawn the charge.

Discussion

[25] There is little doubt that this prosecution ought not to have proceeded. Relevant research of the legislation and case law and careful review of the prosecution file by a superior should have revealed the correct legal situation. As discussed with counsel during the hearing, the likelihood is that the appellant’s former counsel did not himself find the case of Coupland until he began his preparation and research for the defended hearing. It is fair to assume that is why

defence counsel did not proffer the authority to the prosecution at an earlier stage. Having said that, it was not defence counsel’s responsibility to inform the prosecution about the validity of their case. Rather, it was for the prosecution to ensure the validity of the charge being prosecuted. In any event, Coupland did not relate to an affirmative defence requiring notification by the defence; rather it related to an element of the offence itself.

[26] An award of costs is clearly appropriate in this case, as conceded by the

Crown. The only issue is quantum.

[27] The criteria for exercising the Court’s discretion to exceed scale costs are set out in paragraph [16] above. This is not a situation where the prosecution acted other than in good faith but it is a situation where a baseless prosecution has been brought and continued in the absence of the most cursory research and a failure to responsibly review. This is not the situation of a validly brought prosecution, where the appellant has been afforded the benefit of reasonable doubt or where witnesses have failed to come up to brief, despite thorough and conscientious preparation.

[28] There is no reason why citizens should face charges devoid of jurisdiction and be put to the stress and expense of defending these. While the present situation may not be any more than one of carelessness or inexperience, the appellant is entitled to be reimbursed for his out of pocket expenses at least.

[29] It will be necessary for Mr Prasad to submit a schedule detailing the reasonable costs incurred in defending the prosecution, together with an outline of those scale charges which he says apply. His schedule of costs is to be filed by 4.30 pm on Friday of this week (4 July). Mr Tran for the Crown then has until Wednesday 9 July at 4.30 pm to file any submissions in reply.

Goddard J