Terry v Police [2014] NZHC 240 (20 February 2014)

Last Updated: 26 March 2014

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2014-418-004 [2014] NZHC 240

ROBERT FRANK TERRY Appellant

v

NEW ZEALAND POLICE Respondent

Hearing: 20 February 2014 (Heard at Christchurch)

Appearances: Appellant in Person

C Butchard for Respondent

Judgment: 20 February 2014

_{JUDGMENT OF MANDER J}

[1] Mr Terry appeals the decision of Judge S J O’Driscoll declining his application for travel costs upon the dismissal for want of prosecution of a charge he faced under the Telecommunications Act 2001. Mr Terry was charged with using a telephone device for the purposes of annoying a named individual, by calling that person up “without speech”.

[2] A fixture date was set in the Greymouth District Court for 13 January 2014. A previous hearing date had to be vacated when the matter was not able to proceed due to a lack of Court time.

[3] On 17 December 2013, the Police contacted the Greymouth District Court and the appellant advising they would be requesting an adjournment on the grounds

_{that the complainant was unavailable on the January date as her husband was having}

TERRY v NEW ZEALAND POLICE [2014] NZHC 240 [20 February 2014]

surgery in Christchurch and she wished to be with him at that time. Unfortunately no application for adjournment was made before the hearing date itself.

[4] The appellant opposed the adjournment application which was subsequently declined by Judge O’Driscoll. The charge itself dated back to September 2012 and was by the time of the fixture in January of some 16 months vintage. The inability of the Court to accommodate the hearing of the matter on the earlier date was noted as was the considerable further time that would elapse before the matter could be heard.

[5] The District Court noted that ordinarily it would be prepared to grant the Police an adjournment because of unforeseen medical reasons, but having regard to the nature of the charge, which was not considered to be at the high end of the criminal scale, and the elapse of time there was a need to bring finality to the matter. The adjournment was therefore declined. As a result the Police were not in a position to offer evidence and the charge was accordingly dismissed.

[6] Mr Terry then applied to the Court to have costs awarded against the Police for his transport which, as he repeated on the hearing of the appeal, he maintained had required him to travel to the Court, as I discern it from Christchurch, some five times.

[7] Judge O’Driscoll declined the application on the basis that there were medical reasons relating to the availability of the complainant which had prevented the police from proceeding, and that Mr Terry had been advised prior to the fixture date of these difficulties. Judge O’Driscoll in the exercise of his discretion declined to grant costs.

[8] On the appeal Mr Terry submitted that Judge O’ Driscoll had erred in the exercise of his discretion. While acknowledging that the Judge had a right to refuse his application, he argued that Judge O’Driscoll had failed to give him an opportunity to be heard on the issue. He submitted that he had advised the Police that they were not going to win the case and that despite such a representation the Police opted to proceed. He was accordingly required to attend Court throughout the

course of the proceeding. Mr Terry made reference to the five trips that he had made to Greymouth at a time when he had been required to live at an address in Christchurch as a result of a bail condition in relation to a separate matter. He submitted that if the Police and the Court were going to require people to come to Court they should be reimbursed for their expenses when the prosecution does not succeed.

[9] Mr Terry acknowledged that he had received a letter from police seeking an adjournment but complained that there were errors in various references contained in the document, which I understand led to some confusion on Mr Terry’s part as to which particular matter the letter related. It was Mr Terry’s submission that when the Police withdraw a case or lose a case they should be billed with the funds being directed to the Public Defender’s office. He sought the sum of $300 in that regard.

[10] Ms Butchard for the Crown resiled somewhat from the written submissions filed by the respondent. Originally it had been submitted that while there was jurisdiction to award a defendant travel expenses, to be eligible for such costs a defendant must meet the tests set out in the Act. In the absence of a defendant not fulfilling the criteria in s 5 of the Act there was no jurisdiction to award travel costs as the essential tests under the Act were not met.

[11] Ms Butchard, I believe wisely, recognised that the Court has a wide discretion under the Costs in Criminal Cases Act 1967 regarding the award of costs and there is no “test” in the Act that has to be met to be eligible for payment. Section 5 of the Act, without limiting or affecting the Court’s discretion, sets out a number of matters that where appropriate the Court shall have particular regard to when considering the issue of costs in respect of a successful defendant. These include:

5 Costs of successful defendant

...

(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.

...

[12] In the context of costs being sought in respect of travel expenses, counsel for the respondent referred to the judgment of Potter J in Willmoth v Police,¹ where Justices of the Peace had declined the appellant’s reimbursement of travelling expenses. The High Court observed that the Justices considered the claim against the criteria which applies to costs under the Costs in Criminal Cases Act 1967. The Court noted that such criteria is relevant to an assessment of costs rather than to an

award for disbursements but that such “criteria” was probably “a fair enough” way to go about assessing the legitimacy and merit of the appellant’s claim for travel disbursements.

[13] In that case, Potter J awarded the appellant travel expenses. While prosecuted in good faith, it was a case where the appellant had never been in breach of the statute and the prosecution could have been abandoned before it came to Court. The case is distinguishable from the present matter, where the charge was

_{dismissed because of the non-availability of the complainant (for good reason) and}

¹ Willmoth v Police HC Hamilton CRI-2011-419-45, March 2012.

not because of any inherent flaw or evidential insufficiency in the prosecution case itself.

[14] Having regard to the matters listed in s 5(2), the respondent submits that none of the particular considerations which the Court should have regard to count against the prosecution. The prosecution acted in good faith in bringing the proceedings, there was sufficient evidence to support the conviction of the defendant, no criticism has been made of the way in which the matter was investigated, and the only reason the charge was dismissed was because of the understandable absence of the complainant rather than any assessment of the merits of the prosecution case itself.

[15] The respondent fairly acknowledged that perhaps steps could have been taken to have had the adjournment application heard before Christmas but no formal adjournment application had been filed, with only an oral application being made on the day of the hearing. Notwithstanding that critique, the Crown’s submission was that Judge O’Driscoll was correct to decline the application for costs and had not erred in the exercise of his discretion.

[16] There is no presumption for or against granting costs, and costs may not be granted merely because a defendant has been successful. As the respondent submits in its written submissions, although an award of costs is discretionary there must be good grounds for making it.² As was recognised by Potter J in the Willmoth case, a self-represented litigant is not entitled to costs and while a successful self- represented litigant may be entitled to recover disbursements at the discretion of the presiding Judge,³ a Court will always exercise great caution in awarding reimbursement to a litigant in person.

[17] Mr Terry may be on firm ground that Judge O’Driscoll should have given him greater opportunity to be heard on his application to recover travel costs, at least as it appears on the face of the transcript of the exchange between the bench and Mr Terry. However on the hearing of the appeal (which in any event proceeds by way of

_{rehearing) Mr Terry was given full opportunity to mount his argument as to why the}

2. R v Leitch CA 195/95, 22 December 1987; R v Rust [1988] 3 NZLR 159, [1988] 15 CRNZ 644 (CA).

³ R v Meyrick [2008] NZCA 45, at [19].

Court should have exercised its discretion in his favour. I am prepared to consider the appeal on the merits of the matters that Mr Terry put forward on appeal in support of an award to recover his travel costs which he put at $300.00.

[18] It is apparent that the only reason that the charge was dismissed was because the complainant, through no fault of her own, could not be present to give evidence on the charge. Understandably, she wished to be with her husband or partner in Christchurch at the time of his surgery. No doubt inconvenience was caused to Mr Terry as a result of him having to attend Court, however his appearance was not a redundant one. The Police intended and indeed did apply for an adjournment which Mr Terry, after making submissions to the Judge which appear to have been accepted, successfully opposed.

[19] Notwithstanding the submissions of Mr Terry on the hearing of this appeal, I agree with Judge O’Driscoll that this was not an appropriate case for an award of travel costs particularly having regard to the circumstances giving rise to the information being dismissed. While acknowledging the wide discretion available to a Court, the reasons for the delay up until the January hearing date were systemic and the reason for the defended hearing not being able to proceed was beyond the control of the prosecution. There was no suggestion the Police acted other than in good faith. Insofar as the matters set out in s 5(2) provide applicable guidance there is nothing in the listed factors that are present in this case which would otherwise favour such an award.

[20] The appeal is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch

Copy to:

R Terry, Reefton