CAVANAGH v NEW ZEALAND POLICE [2023] NZCA 57

CAVANAGH v NEW ZEALAND POLICE [2023] NZCA 57 [14 March 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA475/2022[2023] NZCA 57BETWEEN MARIA ELENA JEAN CAVANAGHApplicantAND NEW ZEALAND POLICERespondentCourt: French, Ellis and Churchman JJCounsel: Applicant in personB So for RespondentJudgment:(On the papers)14 March 2023 at 2.15 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Ms Cavanagh was charged with trespass and resisting arrest following atenancy dispute. The District Court subsequently dismissed the trespass charge unders 147 of the Criminal Procedure Act 2011 (CPA) and the police withdrew the chargeof resisting arrest.1 Ms Cavanagh then applied for indemnity or (alternatively) scalecosts against police under the Costs in Criminal Cases Act 1967 (CCCA).1 Police v Cavanagh [2021] NZDC 22627 [dismissal judgment].[2] In general terms the CCCA provides that where a defendant is acquitted of anoffence or where the charge is dismissed or withdrawn, on the merits or otherwise, theCourt may order that they be paid such sum as it thinks just and reasonable towardsthe cost of their defence.2[3] The District Court declined her initial application for costs.3 Ms Cavanaghthen appealed to the High Court, but her appeal was dismissed.4[4] Ms Cavanagh now seeks leave to bring a second appeal to this Court.The events leading to the charges5[5] In January 2020, Ms Cavanagh moved into the spare room of a house inChristchurch that had been occupied by Mrs Jackson, who was 80. No formal tenancyagreement was signed but it was agreed rent would be $120 a week with the cost ofelectricity to be split.[6] When, in response to the COVID-19 pandemic, New Zealand moved to a Level4 Lockdown, Ms Cavanagh went to live in Timaru. She stopped paying rent orelectricity expenses for the Christchurch property.[7] When New Zealand moved back to Level 3, Ms Cavanagh returned to theChristchurch property but was asked to leave. She maintained that her tenancycontinued and refused to do so. Mrs Jackson and her daughter telephoned the police.[8] After discussion, police gave Ms Cavanagh a verbal trespass order. They gaveher the opportunity to collect her personal items but she declined and drove off.[9] After some time had passed, Ms Cavanagh went to the Christchurch PoliceStation and spoke to an officer who confirmed that the trespass notice was valid.Ms Cavanagh then left and drove back to the address and again asserted her rights to2 Costs in Criminal Cases Act 1967 (CCCA), s 5(1).3 Police v Cavanagh [2022] NZDC 5549 [District Court judgment].4 Cavanagh v Police [2022] NZHC 2174 [High Court judgment]; additionally, a related complaintmade by Ms Cavanagh to the Independent Police Complaints Authority about the conduct of thepolice in her case has also been dismissed.5 The factual narrative is taken from the District court judgment, above n 3.enter. Police were again called. Police offered to take Ms Cavanagh to a location ofher choice or to arrange some temporary accommodation, on several occasion, but shedeclined. Police formed the view that Ms Cavanagh was not going to leave out of herown volition. Mrs Jackson had indicated she felt unsafe. A decision was made toarrest Ms Cavanagh at this point, but she was uncooperative. She was eventually liftedinto the police van and spent a night in the cells.6 She was charged with trespass andresisting arrest. She was bailed the next day.[10] Ms Cavanagh successfully applied under s 147 of the CPA to have the trespasscharged dismissed.7 The Judge also gave leave to the police to withdraw the resistingcharge, which they did.8The costs application[11] Ms Cavanagh sought then costs under the CCCA. Section 5 of that act is thekey provision. It provides:5 Costs of successful defendant(1) Where any defendant is acquitted of an offence or where the charge isdismissed or withdrawn, whether upon the merits or otherwise, thecourt may, subject to any regulations made under this Act, order thathe be paid such sum as it thinks just and reasonable towards the costsof 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 grantcosts and the amount of any costs granted, shall have regard to allrelevant circumstances and in particular (where appropriate) to—(a) whether the prosecution acted in good faith in bringing andcontinuing the proceedings:(b) whether at the commencement of the proceedings theprosecution had sufficient evidence to support the convictionof the defendant in the absence of contrary evidence:(c) whether the prosecution took proper steps to investigate anymatter coming into its hands which suggested that thedefendant might not be guilty:6 Ms Cavanagh says her treatment in the police station was unprofessional and dehumanising.7 Dismissal judgment, above n 1, at [13]; police did not, ultimately, oppose the dismissal.8 Dismissal judgement, above n 1, at [7] and [13], it was agreed that it was not in the public interestto pursue the charge.(d) whether generally the investigation into the offence wasconducted in a reasonable and proper manner:(e) whether the evidence as a whole would support a finding ofguilt but the charge was dismissed on a technical point:(f) whether the charge was dismissed because the defendantestablished (either by the evidence of witnesses called by himor by the cross-examination of witnesses for the prosecutionor otherwise) that he was not guilty:(g) whether the behaviour of the defendant in relation to the actsor omissions on which the charge was based and to theinvestigation and proceedings was such that a sum should bepaid towards the costs of his defence.(3) There shall be no presumption for or against the granting of costs inany case.(4) No defendant shall be granted costs under this section by reason onlyof the fact that he has been acquitted or that any charge has beendismissed or withdrawn.(5) No defendant shall be refused costs under this section by reason onlyof the fact that the proceedings were properly brought and continued.[12] The costs sought by Ms Cavanagh comprised:9(a) the costs of alternative accommodation following her trespass(approximately $4,300);(b) the costs of her university books left at the property from which shewas trespassed ($260.84);(c) the costs of travelling to court ($100); and(d) legal aid costs ($4,061.34).9 $8,680.64 was the figure given as the combined costs sought in in both the District Court judgment(at [2]) and the High Court judgment (at [2]), it is a little lower than the sum total of the costslisted here. It was presumably calculated by reference to the precise amount of accommodationcosts. As well, the District Court makes no reference to a separate claim for travelling costs, butrather has an additional $100 added to the figure for the accommodation costs.The decisions belowDistrict Court[13] Judge Gilbert noted the CCCA affords the Court a wide discretion to do whatit considers right when awarding costs, guided by the criteria in s 5 of the Act.10 Heobserved "costs" are defined in the Act as "any expenses properly incurred by a partyin carrying out a defence" which, in his view, meant that Ms Cavanagh could onlyclaim for legal aid costs.11 In terms of the relevant s 5 criteria, he found police hadnot acted in bad faith and agreed with their counsel that they could not have left thesituation to play out "on its own devices".12 He also found Ms Cavanagh's ownconduct had been contributory and noted that the matters advanced in support of thedismissal of the trespass charge were technical and not clear cut.13 As well, heobserved that had the charge of resisting arrest not been withdrawn, it would likelyhave been sustained.14[14] Ultimately, the Judge did not consider Ms Cavanagh's case was one where anaward of costs was justified. He acknowledged she had spent a night in the cells andbelieved she had been significantly wronged but recorded his view that Ms Cavanaghhad exacerbated the situation and so put the police into a position where they feltcompelled to arrest her.15Appeal to the High Court[15] In the High Court, Dunningham J agreed with the District Court Judge that thecosts incurred by Ms Cavanagh in finding alternative accommodation could notproperly be claimed as "costs of [her] defence".16 She also agreed with the Judge'sassessment that police had done their best to ameliorate a difficult situation and thatthe later dismissal of the trespass charge did not undermine the validity ofMs Cavanagh's arrest: the arresting officers had good cause to suspect that10 District Court judgment, above n 3, at [27]-[29].11 At [27] and [31]; and CCCA, s 2.12 At [35].13 At [40].14 At [44].15 At [43] and [47].16 High Court judgment, above n 4, at [39].Ms Cavanagh had committed a trespass.17 And she agreed with the Judge thatMs Cavanagh had intentionally obstructed a constable in the exercise of his duties andhad herself contributed to a tense situation.18 Ultimately, she concluded that there wasno discernible error in the exercise of the broad discretion afforded to the Judge by theCCCA.19Should leave be granted for a second appeal?[16] Under s 276 of the CPA, leave for a second appeal relating to a costs ordermust not be granted unless the relevant court is satisfied the appeal either involves amatter of general or public importance or a miscarriage of justice may have occurredor may occur unless the appeal is heard.[17] A proposed appeal might raise "a matter of general or public importance"where it involves an issue of general principle or that is of wider importance in theadministration of the law. An obvious example is where the proposed appeal raises aquestion of law that would have a broader application beyond the circumstances of theparticular case.20 By extension, leave is often declined where the application raisesissues of fact specific to the circumstances of a particular case.21[18] Here, the matters raised by Ms Cavanagh are plainly of great importance toher, but they arise from specific events that are particular to her. It cannot fairly besaid that those matters have any wider (general or public) importance. The firstcriterion for leave is not therefore satisfied, and leave cannot be granted on that basis.[19] Accordingly, the only question for us is whether a miscarriage may occur if theappeal is not heard. The threshold is undoubtedly a high one. This Court has declinedto take a prescriptive approach to it. This limb may (but not must) be satisfied where17 At [40]-[42] and [46].18 At [46].19 At [47].20 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [36].21 At [36].it is reasonably arguable that the court below is in error.22 The approach to leave shouldalso reflect this Court's supervisory role in relation to aspects of criminal practice.23[20] We begin by recording that Ms Cavanagh's claims for alternativeaccommodation costs following her trespass and for her books left behind are nottenably claimable under the CCCA. As the Judges below have said, while they arecosts incidentally related to the events that led to the charges, they cannot be said tobe "expenses properly incurred by a party in carrying out a defence". So, any part ofthe proposed appeal relating to those costs is simply not arguable. Refusing leave is—to that extent at least—incapable of giving rise to a risk of miscarriage.[21] That leaves the question of Ms Cavanagh's legal aid expenses and, possibly,her travel costs.[22] We acknowledge at the outset that, as Ms Cavanagh submits, s 5(5) of theCCCA states that "no defendant shall be refused costs under this section by reasononly of the fact that the proceedings were properly brought and continued".Conversely, however s 5(4) provides that "no defendant shall be granted costs byreason only of the fact that he has been acquitted or that any charge has been dismissedor withdrawn". As s 5(3) makes clear, there is no presumption for or against thegranting of costs in any case.24[23] We can discern no obvious error of principle by the Judges below and there isnothing to suggest that they took account of irrelevant considerations or failed to takeaccount of a relevant ones. Although Ms Cavanagh seeks to take issue with theirassessment of both the conduct of the police and her own conduct, the conclusionsthey reached (that police did what they did in good faith in an attempt to diffuse adifficult situation and that Ms Cavanagh had, to some extent, contributed to thatsituation) were plainly open to them. Similarly, we can discern no error in their22 In the context of a second costs appeal, this Court in Allison v R [2021] NZCA 140 dismissed anapplication for leave on the basis that the Court was "not persuaded that there is a sufficientlyarguable case of prosecutorial bad faith such that the further appeal should be allowed" (at [29]).23 McAllister v R, above n 20, at [39].24 Moreover, because costs involve the exercise of discretion, the onus is on an appellant todemonstrate that the decision below is based on some error of principle, or that the Judge tookaccount of irrelevant considerations, failed to take account of a relevant consideration or wasplainly wrong.conclusion that there was – despite its eventual withdrawal – an evidential sufficiencyfor the resisting charge and that the legal position in relation to the trespass charge wasnot without difficulty.25 As well, the position eventually taken by police, in notopposing the dismissal application and seeking leave to withdraw the resisting charge(on public interest, rather than evidential sufficiency, grounds) seems to us a whollyresponsible one.26[24] It follows we can see no risk of miscarriage if the appeal is not heard.Result[25] The application for leave to bring a second appeal is declined.Solicitors:Crown Law Office, Wellington25 District Court judgment, above n 3, at [40] and [44]; High Court judgment, above n 4, [43]-[44];further, as we understand it, the foundation for the charge was in doubt because Ms Cavanaghmaintained that she had a right (as tenant) to be on Mrs Jackson's property. Although we expressno view on the point that issue may not be entirely clear-cut, given that the tenancy was an oralone and Ms Cavanagh had not been living there or paying rent for a number of weeks.26 We note that our view of the police conduct in this matter is consistent with the outcome of MsCavanagh's complaint to the IPCA.