Morris v Nz Police

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 06 June 2013
• Neutral Citation: [2013] NZHC 1336
• Docket Number: CRI-2011-090-004721
• Court: High Court
• Date: 06 June 2013

IN THE MATTER OF an application for costs under s 5 of the Costs in Criminal Cases Act 1967

BETWEEN

Christopher William Morris

Applicant

and

New Zealand Police

Responden

[2013] NZHC 1336

CRI-2011-090-004721

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for costs against Police under s5 Costs in Criminal Cases Act 1967 (“CCCA”) (costs of successful defendant) following discharge on a count of possession of methamphetamine for supply — applicant asserted from the outset that there was insufficient evidence to support a conviction for possession of drugs-District Court and High Court judges had expressed doubts as to the strength of the case at bail hearings — the Police went ahead with the charges until the Crown reviewed the evidence and decided not to proceed against the applicant — whether costs should be granted under s5 CCCA — whether the failure of the applicant to explain his involvement could be taken into account when considering the amount of costs to be awarded — whether costs on the application should awarded under the High Court Rules or the CCCA.

Counsel:

OE Harold for Applicant

AR Burns for Respondent

JUDGMENT OF Asher J

Introduction

1 This is an application for costs by Mr Christopher Morris against the Police following his discharge on a count of possession of methamphetamine for supply.

2 Mr Morris is a patched member of the Headhunters motorcycle gang. The Police contend he was the vice president of the west chapter of the Headhunters, which has a house base at Henderson. Regular weekly meetings of west chapter Headhunter members were held at 7 pm on Fridays, referred to by them as weekly “church meetings”. The house at Henderson is owned by Tapa Tohunga Group Inc. Mr Morris has no legal connection to the owner and it is not suggested that he lives at the address.

3 On the night of Friday, 11 March 2011 a search warrant was executed on the Henderson house. Mr Morris was present with 13 other associates in the meeting room of the clubhouse. In a toilet adjacent to the meeting room, situated a few metres away from where Mr Morris and the others were sitting, the Police found a Tupperware container inside a leather motorcycle bag containing 1.187 kilograms of methamphetamine, worth in street value terms approximately $1 million. Also located on a bar in the meeting room was a shoulder bag containing 24 grams of methamphetamine. Inside that bag were the bail papers of the president of the Headhunters west chapter, Mr David Dunn, one of the co-accused.

4 Several other gang members were found to be in possession of methamphetamine pipes, but not Mr Morris. There may also have been some fingerprint and DNA evidence linking Headhunter gang members to what was found, but nothing found showed any connection to Mr Morris.

5 Mr Morris was arrested on 14 March 2011. On his first appearance that day, his counsel Mr Harold asserted that there was insufficient evidence to support a conviction. He filed an application for costs on the basis that the prosecution had not taken proper steps to investigate matters, and were not conducting the prosecution in a reasonable and proper manner.

6 In the bail hearings that followed in the District Court and on appeal in the High Court, Mr Harold made strong submissions that the Police case could not succeed. On 11 April 2011 in an oral judgment responding to an application for variation of a 24 hour curfew bail term, Judge H M Simpson in the District Court observed that the Police case was “very slender”. 1 She noted that Mr Morris had met the bail terms and determined that, having regard to the “paucity of the evidence”, 2 the Police case was not strong. She removed the restrictive bail conditions.

7 Some of these conditions were re-imposed by Lang J on appeal, 3 but he also observed that the Judge Simpson's assessment of the strength of the Police case was correct. He considered that there was a real issue as to the stated knowledge of each accused and the intention of those accused in relation to the drug.

8 In the meantime, Mr Harold had applied for an application for an oral evidence order under s 178 of the Summary Proceedings Act 1957. Because there was no longer a depositions process in criminal proceedings, he hoped to obtain an order at the conclusion of that evidence that the defendant be discharged. However, on 28 October 2011 his application was dismissed by Judge D M Wilson QC because the application was, in essence, in the nature of a s 347 application based on the existing evidence. 4 The Judge held that no purpose would be served by directing oral evidence, given that Mr Harold was not seeking to elicit any further evidence in support of his application. 5

9 On 23 June 2011, Mr Morris had been charged with a further count of participation in an organised criminal group. A post-committal hearing was set for 24 November 2011 and on that date the District Court committed Mr Morris to the High Court. There was a callover in the High Court on 8 February 2012 with all accused being remanded to trial on 12 November 2012. All indicated that s 347 applications would be filed and timetable orders were made. A fixture was allocated for the applications for 29 June 2012.

10 On 24 May 2012, Mr Harold was advised by the Crown that it had reviewed the evidence and decided not to proceed against Mr Morris and the other accused, save for Mr David Dunn whose prosecution continues.

11 Mr Morris now seeks costs under the Costs in Criminal Cases Act 1967 (the CCCA). He seeks Mr Harold's full indemnity costs which come to $14,590.89 including GST for Mr Harold's various attendances over 14 months from March 2011, and in addition the costs of this hearing.

The Costs in Criminal Cases Act 6

12 Section 5(1) of the CCCA states that where a defendant is successful by, amongst other things, being discharged, the Court may order that he be paid “such sums as it thinks just and reasonable towards the cost of his defence”. Section 5(2) states that the Court should have regard to all relevant circumstances, and lists seven particular factors (where appropriate):

• (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.

13 Section 5(3) provides that there is no presumption for or against the granting of costs, and s 5(4) states that no defendant shall be granted costs by reason only of an acquittal or discharge, or dismissal or withdrawal of an information.

14 The criteria set out in s 5(2) apply to both the decision to grant costs and the amount of any costs granted. Under s 13(3) of the Act, the Governor-General is empowered to make regulations providing for, amongst other things, a maximum scale of costs. It is provided that the Court may nevertheless make an order for the payment of costs in excess of that scale if it is satisfied “… having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.”

15 Thus, the CCCA sets out in detail particular circumstances that are relevant to the issue of whether to grant costs to a successful defendant. Section 13 is, on its face, prescriptive as to the maximum scales of costs that may be ordered, and exact as to the circumstances in which that scale can be exceeded; the Court must be satisfied having regard to the “special difficulty, complexity, or importance” of the case that the payment of greater costs is desirable.

16 As was pointed out in Shirley v Wairarapa District Health Board in a civil proceeding, while the costs jurisdiction is discretionary, it is not unprincipled. 7 Otherwise it would be unacceptably arbitrary. The Court held there that the discretion had to be exercised generally in accordance with the principles set out in the costs rules. 8

17 There is a general discretion given to the Court by s 5(1) to order a payment of such sum as it “thinks just and reasonable” towards the cost of the defence. That sets the general test. The considerations set out in s 5(2) apply specifically to the “amount of any costs granted” as well as whether to grant costs. As Tipping J observed in T v Collector of Customs: 9

The amount to be ordered may be influenced by the grounds which existed for making an order in the first place. For example, if, under s.5(2)(a) the

Court is of the view that the prosecution had not acted in good faith that might be a strong pointer to awarding costs at or towards an indemnity level.

Should there be a costs award?

18 It is necessary to assess the s 5(2) factors and other relevant circumstances. Mr Harold does not suggest that in terms of s 5(2)(a) the prosecution failed to act in good faith in continuing the proceedings. However, he submits that s 5(2)(b)–(d) apply....