Wilkins v Housing New Zealand Corporation [2014] NZHC 2566 (21 October 2014)

Last Updated: 4 November 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-404-000112 [2014] NZHC 2566

BETWEEN	ALLAN KEITH WILKINS Appellant
AND	HOUSING NEW ZEALAND CORPORATION Respondent

Hearing:	On the papers
Judgment:	21 October 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 21 October 2014 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date...............................}

WILKINS v HOUSING NEW ZEALAND CORPORATION [2014] NZHC 2566 [21 October 2014]

[1] In my decision of 1 September 2014 I dismissed Mr Wilkins’ applications for leave to appeal out of time against a conviction entered in June 2009 and to call further evidence. My reasons were that Mr Wilkins had not adequately explained the delay in bringing the application and that, in the circumstances of the case, no miscarriage of justice would arise if leave were refused.

[2] The respondent, Housing New Zealand Corporation (HNZ) has applied for costs in the form of scale costs of $226 pursuant to s 8(1) of the Costs in Criminal Cases Act 1967 and Costs in Criminal Cases Regulations 1987. It also seeks costs of a further $3,500 under s 8(5) of the Act on the basis that Mr Wilkins’ application for leave was a deliberate collateral attack on previous decisions, lacked merit and was therefore frivolous or vexatious. An award of costs in a criminal case is discretionary and it is for HNZ to show good grounds why I should exercise my

discretion in its favour.¹

[3] Mr Wilkins maintains that his application was based on a genuine belief as to his innocence and was not a collateral attack on previous decisions, frivolous or vexatious. Mr Wilkins seeks to have costs lie where they fall.

[4] I do not need to re-visit the circumstances of Mr Wilkins’ application for leave to appeal. It is sufficient to note the essential points. Mr Wilkins pleaded guilty in 2009 to one representative charge of using a document to defraud HNZ. He was represented by counsel. He had the opportunity to vacate the plea before he was sentenced but did not do so. He did not take any further steps until 2010, when HNZ commenced civil proceedings against him. In those proceedings Mr Wilkins asserted that he had misunderstood the basis on which he had entered the guilty plea, doing so in the belief that HNZ had agreed that, in return for the guilty plea it would not seek either reparation nor damages from him. That assertion was thoroughly aired and rejected in the civil proceedings.

[5] I accept that Mr Wilkins sincerely believes that information he now has might have altered the outcome of the civil proceedings and that, somehow, that would justify a late appeal against his conviction. This belief is, however, misconceived, as

I discussed in my decision. At all the relevant times Mr Wilkins had the benefit of experienced counsel. He pleaded guilty for practical reasons and took the benefit of that plea. He did not act promptly to appeal the conviction and has no reasonable explanation for that delay.

[6] In these circumstances I consider that he should pay costs in accordance with the regulations of $226.² I do not, however, intend to exercise my discretion under s 8(5) and award additional costs on the basis that the application was frivolous or vexatious. The application certainly lacked merit. I am influenced by Mr Wilkins’ personal difficulties. He does not the means to pay a substantial costs award because he is on a benefit and working part-time. He is repaying legal aid at a modest

amount per week. He has some cognitive difficulties as a result of an old injury. There is no criticism of HNZ in resisting Mr Wilkins’ application, nor in applying for costs. However, a substantial costs award is unlikely to be paid and, ultimately, the cost to the taxpayer probably greater than putting an end to the matter now.

_{[7] There is to be an award of costs in favour of HNZ of $226.}

P Courtney J