CAVANAGH v NEW ZEALAND POLICE [2022] NZHC 2174

CAVANAGH v NEW ZEALAND POLICE [2022] NZHC 2174 [30 August 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-64[2022] NZHC 2174BETWEEN MARIA ELENA JEAN CAVANAGHAppellantAND NEW ZEALAND POLICERespondentHearing: 25 August 2022Appearances: Appellant in personG E R Alloway for RespondentJudgment: 30 August 2022JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 30 August 2022 at 9.45 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] The appellant, Maria Elena Jean Cavanagh, sought costs under the Costs inCriminal Cases Act 1967 (the Act) in the District Court following the dismissal of acharge of trespass and the withdrawal of a charge of resisting arrest.[2] In the District Court, Ms Cavanagh claimed accommodation costs totallingapproximately $4,300 as a result of not being allowed to return to the address fromwhich she had been trespassed. She claimed legal aid costs for the prosecution totalling$4,061.34. She also claimed fees relating to unreturned university books that remainedat the address from which she was trespassed in the amount of $260.84 and travel costsfor Court appearances of $100. The total sought was $8,680.64.[3] In a decision dated 30 March 2022, Judge Gilbert declined to award costs.1Ms Cavanagh now appeals that decision.Factual background[4] In late December 2019, or early January 2020, Ms Cavanagh moved into thespare room of a house in Christchurch that had been occupied by Margaret Jacksonfor the previous 18 years. Ms Jackson is 80 years old and, presumably, was seekingto generate extra income. The arrangement was informal, but rent was apparentlyagreed at $120 per week with electricity bills to be split. Ms Cavanagh rented theroom for approximately three months until the start of the first COVID-19 lockdowncommencing on 25 March 2020.[5] During that week, it appears Ms Cavanagh decided to leave the address to livein Timaru. The reasons for the move are not agreed but Ms Cavanagh says Ms Jacksonallowed her daughter to visit in breach of the COVID-19 lockdown rules andMs Cavanagh did not want to be exposed to that risk. Approximately five weeks later,on 28 April, New Zealand moved from Alert Level 4 to 3. While she was in Timaru,Ms Cavanagh had not paid rent or expenses, although she says her rent was paid inadvance, so one week's rent would have been covered.1 Police v Cavanagh [2022] NZDC 5549.[6] On 29 April, Ms Cavanagh arrived back at the address but was told she wasnot welcome and was asked to leave. Instead that morning she was emailed an evictionnotice. She then refused to leave, maintaining she had a tenancy. Shortly thereafter,Ms Jackson and her daughter called the police. At about 1.30 pm that day, policearrived and Constable Fossbender discussed matters with both parties. Statementsfrom the officers who attended suggest that Ms Cavanagh was difficult to deal withand aggressive to the point that she was warned about the possibility of being arrestedfor disorderly behaviour. Ms Cavanagh, however, said she was doing nothing morethan asserting her legal rights as tenant to be at the property.[7] After discussion, the police issued Ms Cavanagh with a verbal trespass order.She was, however, given the opportunity to re-enter the address to retrieve anypersonal items such as clothing. It appears she declined and drove off.[8] Several hours later, Ms Cavanagh presented at Christchurch Police Station andspoke to an authorised officer. She remonstrated about the fact she had been trespassedfrom a property at which she considered she was lawfully entitled to reside. Theofficer discussed matters with a sergeant and undertook some further limited research,after which the police maintained she was validly trespassed and if she returned to theaddress she would be arrested. The police formal statements record that Ms Cavanaghthen swore and said something like: "You will have to arrest me then."[9] Ms Cavanagh then drove back to the address and again asserted her rights toenter. Ms Jackson called the police, who found Ms Cavanagh in an angry mood. Thesergeant who attended again assessed matters. Ms Jackson expressed the view shewas concerned for her safety. The police told Ms Cavanagh she could not stay at theaddress and Senior Sergeant Keer-Keer offered to take her to a location of her choiceor to arrange some temporary accommodation for her. This offer was apparentlyrepeated on a number of occasions. However, Ms Cavanagh, aggrieved by thesituation, continued to assert she was entitled to be at the address. The police thenundertook what was described as their "least preferred option" and arrestedMs Cavanagh.[10] Ms Cavanagh accepts she was then wholly uncooperative. It took six policestaff to lift Ms Cavanagh into the back of a police van to be transported to ChristchurchCentral Police Station. According to police, this was required because ofMs Cavanagh's actively uncooperative behaviour as she intended to make the arrestas difficult as possible, albeit without striking out or being violent. These difficultieswere compounded by Ms Cavanagh's size and, in light of medical issues she had toldpolice about, their concerns as to the possibility of positional asphyxia.[11] Ms Canavagh was eventually lifted into the police van and taken to the station.She was charged with trespass and resisting arrest. She spent a night in the cells andsays her treatment in the police station was unprofessional and dehumanising.However, it is clear from the evidence she was being intentionally and activelyuncooperative during this period. Ms Cavanagh was bailed the next day withconditions, including not to go or be found within 100 metres of the address unlessaccompanied by police.Procedural background[12] The matter then proceeded through the courts and was hampered by a numberof delays. Some of the delay was caused by the fact Ms Cavanagh went through anumber of lawyers and by COVID-related issues.[13] Eventually, almost a year after Ms Cavanagh's first appearance, her counselfiled a pre-trial application under s 147 of the Criminal Procedure Act 2011 (CPA) fordismissal of the charges. This appears to have been indicated orally at a case reviewhearing or similar before Judge O'Driscoll. The basis of the application was thatMs Cavanagh was entitled to be at the address and therefore could not be validlytrespassed, with the result the resisting arrest charge should also be dismissed as thearrest was only effected pursuant to an unsustainable charge.[14] On 18 November 2021, the dismissal application came before Judge Gilbert.He recorded he had queried with police whether it was in the public interest to proceedwith the matter given Ms Cavanagh was a 50-year-old woman with no previousconvictions whose low-level charges arose in the extraordinary context of the Level 4lockdown, and a considerable period had since passed. After considering the mattermore closely, and receiving submissions from defence counsel, police did not opposethe dismissal of the trespass charge. The Judge granted the application to dismiss thetrespass charge.[15] The Judge considered the resisting charge was more complicated because thepolice were executing their duty but acknowledged there was a difficulty in theunderlying charge of trespass because of the dispute over whether there was anongoing tenancy. In any event, given the underlying charge of trespass had beendismissed, the police considered there was no longer a public interest in prosecutingthe resisting charge. The Judge viewed this as a pragmatic and appropriate concessionand, while he considered the resisting charge could likely have been sustained in lightof Ms Cavanagh's uncooperative conduct, granted leave to the police to withdraw thatcharge under s 146 of the CPA.[16] In the interim, Ms Cavanagh had also made a complaint with the IndependentPolice Conduct Authority (IPCA) about her treatment by the police. Her complaintswere dismissed in August 2020.[17] On 8 December 2021, Ms Cavanagh, through her then counsel, filed anapplication for costs against the Police on the basis she was successful "by dint of thewilful trespass charge being a legal nullity".District Court decision[18] On 30 March 2022, the costs application came before Judge Gilbert. The Judgenoted the costs claimed in relation to accommodation and library books were clearlyoutside the scope of the Act. He considered the only costs that could conceivably beclaimed were the legal aid costs.[19] The Judge found the police were not acting in bad faith but were doing theirbest in difficult circumstances to find a solution to what was clearly a problem. Heobserved the relationship between Ms Cavanagh and Ms Jackson was clearlydysfunctional and it was "not sustainable to expect peaceful coexistence to occurbetween [them] at that point".2 The Judge rejected the suggestion it was realistic ortenable for the police to simply have walked away from the situation on the basis itwas a civil dispute. Instead, he considered it would likely have created "furthersubstantial difficulties".3[20] The Judge found the police made genuine efforts to try to find a solution thatwould defuse the situation, and made good faith offers to Ms Cavanagh to find hertemporary accommodation or relocate her. He acknowledged Ms Cavanagh genuinelyfelt she was entitled to stay, but determined the ultimate decision to arrestMs Cavanagh was due, in large part, to her own attitude and actions, which wascalculated to make her arrest as difficult as possible.[21] Judge Gilbert found the police could not be criticised for making the wrongcall as to whether Ms Cavanagh had a lawful basis for staying at the house. Indeed,the Judge noted he was himself unsure at the time as to the correct legal position andit was really on the basis of pragmatism and the lack of opposition from police that hewas prepared to dismiss the charges. He noted police officers dealing with dynamicsituations cannot be expected to always make the right call on technical legal pointsand what is important is that they approach situations in good faith. In thecircumstances, the Judge considered there was sufficient evidence presented to policeon the day to make the arrest and commence the prosecution.[22] Furthermore, the Judge found no deficiencies had been identified in the policeinvestigation more broadly. He was not prepared to look behind the finding of theIPCA in the context of a costs application. The Judge observed Ms Cavanagh wasclearly highly obstructive to police officers who were put in an invidious position andgenuinely thought they had a basis to trespass her, and the resisting charge would likelyhave been sustained had the police not made the pragmatic concession to withdraw it.[23] The Judge therefore concluded this was not a case where an award of costs wasjustified and accordingly dismissed the application.2 Police v Cavanagh, above n 1, at [34].3 At [35].Principles on appeal[24] An appeal against a decision on costs orders is governed by subpt 6 of pt 6 ofthe CPA. A person affected by a decision to make or refuse to make a costs order mayappeal against the decision.4 The first appeal court may confirm, vary or set aside thedecision, or make any other order considered appropriate.5[25] Under the Act, where a defendant is acquitted or a charge dismissed orwithdrawn, the court has discretion to order a payment that it considers "just andreasonable" towards the costs of the defence.6 As an appeal against a decision madein the exercise of a discretion, the appellant bears the onus of demonstrating that anerror of law or principle occurred, the Judge took account of irrelevant considerations,failed to take account of a relevant consideration or was plainly wrong.7SubmissionsAppellant's submissions[26] Ms Cavanagh in her submissions referred to the trauma she experiencedthrough being remanded in police custody overnight and the two years of courtproceedings she has endured. Ms Cavanagh submitted she should not have incur thecosts of the mistakes made by the police when she did nothing but assert her rights asa tenant. As a result of the police's conduct, she submitted she incurred unnecessarycosts and had nowhere to store her personal belongings until July 2020.[27] She said she left Ms Jackson's property after the national lockdown wasannounced due to health concerns relating to alleged non-compliance by Ms Jacksonwith COVID-19 non-contact requirements. She submitted she had, at that point, beena tenant for 13 weeks and she considered an application needed to be filed with theTenancy Tribunal for the tenancy to be terminated at such short notice. She saidalthough she was emailed an eviction notice on 29 April 2020 she did not see it until4 Criminal Procedure Act 2011, s 271.5 Criminal Procedure Act, s 274.6 Costs in Criminal Cases Act 1967, s 5(1).7 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32]. Harriman v Police [2015] NZCA285 at [14].she arrived in Christchurch because she had been travelling. She said police ignoredher attempts to explain this situation to them.[28] Ms Cavanagh also attached a four-page document detailing her version ofevents, in particular her experience in police custody. She alleged one officer pulledher hair and insulted her. She also alleged officers' handling of her left her withbruising, scratches and swelling across her body. She said she was not given anythingto eat or drink for 12 hours. Ms Cavanagh provided notes from the EmergencyMedicine Department of Christchurch Hospital dated 1 May 2020, a day after theincident, which records that Ms Cavanagh reported having her hands restrained behindher body and being dragged along the ground. She was recorded as having bruisingto her upper arms and abrasions to her abdomen and wrists. A letter from her GeneralPractitioner dated 12 May 2020 confirmed she suffered from a number of pre-existingmedical conditions.[29] I note the IPCA report dismissed each of Ms Cavanagh's complaints ofill-treatment by police.Respondent's submissions[30] For the Police, Mr Alloway acknowledged Ms Cavanagh's actions were fuelledby a genuine sense of grievance and that the ensuing legal process has been verydifficult for her. However, he submitted the Judge was to correct to find there was nobasis upon which to order criminal costs in this case.[31] Mr Alloway endorsed the Judge's findings that police acted in good faith intheir dealings with Ms Cavanagh and were doing their best in difficult circumstancesto find a solution to the problem. He submitted the Judge was correct to find thatpolice could not be criticised for possibly being incorrect as to whether Ms Cavanaghhad a lawful basis for staying at the house when it boiled down to a technical legalinterpretation of the Residential Tenancies Act 1986. Mr Alloway maintained policeacted in good faith in exercising their powers, which is all that can be expected ofthem. He agreed with the Judge's findings that Ms Cavanagh's conduct significantlycontributed to what occurred and the police's actions were reasonable and proper.Mr Alloway submitted there was sufficient evidence to support a conviction for theresisting arrest charge and its withdrawal was the result of a pragmatic decision bypolice.AnalysisThe law[32] Where a defendant is acquitted of an offence or where the charge is dismissedor withdrawn, on the merits or otherwise, the Court may order that they be paid suchsum as it thinks just and reasonable towards the cost of their defence.8 Costs includeany expenses properly incurred by a party in carrying on a defence or in making ordefending an appeal.9[33] There is no presumption for or against granting costs in any case.10 Costs willnot be awarded or refused solely on the basis of the dismissal of charges or chargesbeing properly brought.11[34] When determining whether or not to grant a costs award under the Act and, ifso, the amount of any award, the court must have regard to all relevant circumstances,and in particular:12(a) whether the prosecution acted in good faith in bringing and continuingthe proceedings:(b) whether at the commencement of the proceedings the prosecution hadsufficient evidence to support the conviction of the defendant in theabsence of contrary evidence:(c) whether the prosecution took proper steps to investigate any mattercoming into its hands which suggested that the defendant might notbe guilty:(d) whether generally the investigation into the offence was conducted ina reasonable and proper manner:(e) whether the evidence as a whole would support a finding of guilt butthe charge was dismissed on a technical point:8 Costs in Criminal Cases Act, s 5(1).9 Section 2.10 Section 5(3).11 Section 5(4)-(5).12 Section 5(2).(f) whether the charge was dismissed because the defendant established(either by the evidence of witnesses called by him or by thecross-examination of witnesses for the prosecution or otherwise) thathe was not guilty:(g) whether the behaviour of the defendant in relation to the acts oromissions on which the charge was based and to the investigation andproceedings was such that a sum should be paid towards the costs ofhis defence.[35] In R v Lyttle, the Court of Appeal set out a number of principles arising fromcases dealing with awards under s 5(2) of the Act:13(a) While success in the proceeding is a jurisdictional prerequisite to anapplication, the fact of success is neutral when the discretion whetheror not to award costs is exercised.(b) The court has a broad discretion when determining whether or not tomake an award under the [Act].(c) The seven matters set out in s 5(2), or those that are relevant, are to beconsidered. The factors set out in s 5(2) are also qualified by the words"[w]ithout limiting the court's discretion", so regard should be hadto all relevant circumstances, and not simply those set out in s 5(2).There is a danger in narrowing relevant considerations by reference tos 5(2) or in trying to fit particular circumstances into one of the factorslisted in s 5(2).(d) The matters set out in s 5(2)(a) to (e) refer in a general way to thepropriety, conduct and strength of the prosecution case. Affirmativeanswers might tend to inhibit or weigh against an award of costs ordiminish the quantum of the same.(e) The terms "proper steps" and "in a reasonable and proper manner" ins 5(2)(c) and (d) mean something less than would be adopted by areasonably prudent prosecutorial authority. It is a difficult burden tosurmount.(f) The fact that a prima facie case is established at a preliminary hearing,or that a judge refuses a discharge, is likely to support the conclusionthat there was sufficient evidence at the commencement of theproceeding.(g) The matters set out in s 5(2)(g) are concerned with behaviourjustifying an award, and not with behaviour disqualifying an award.(h) Costs are not to be awarded only because the defendant has beenacquitted. An applicant must be able to point to some relevantcircumstances, either within the criteria, or otherwise, that justify anaward.13 R v Lyttle [2022] NZCA 52 at [18], citing Banks v R [2016] NZHC 1596 at [41].[36] Also, in Blackwood v R, the Court of Appeal explained:14[9] Unlike civil proceedings, costs in criminal cases do not follow theevent and are seldom awarded. This is because criminal proceedings arepursued by the prosecuting agency in the public interest. Costs are not usuallyawarded in criminal cases unless the prosecution has acted improperly orunreasonably in the investigation or prosecution of the charge. Nevertheless,there is no presumption for or against an award of costs. The mere fact thatthe prosecution was properly brought and continued does not create apresumption that costs to a defendant should be refused.(footnotes omitted)[37] Simply put, the touchstone for determining costs on criminal proceedings isthat the Court is to do what it thinks right in the particular case.15Application to this case[38] At the outset, I acknowledge that Ms Cavanagh's actions were underpinned bya genuine sense of grievance for what she perceived was unjustified conduct on behalfof the Police. It is clear her experience of being arrested and remanded overnight inpolice custody was stressful and unpleasant for her. However, having considered allthe relevant circumstances, I do not consider the District Court Judge erred inconcluding this was not a case where an award of costs was justified.[39] I also note as an aside, the only costs which can be claimed are those incurredin defending the charges. The consequent losses Ms Cavanagh claims because shehad to find alternative, more expensive accommodation and because she left personalproperty at Ms Jackson's house are not "costs of [her] defence" and cannot be claimed.[40] The evidence supports the Judge's primary finding that the police acted in goodfaith throughout their dealings with Ms Cavanagh. While this factor is notdeterminative, as prosecutions by the state are expected to be bona fide,16 it is a mattergoing towards the propriety and overall conduct of the prosecution case.14 Blackwood v R [2020] NZCA 504.15 Cavanagh v Police [2013] NZHC 2232 at [20], affirming R v Margaritis HC Christchurch T66/88,14 July 1989.16 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CC5.09], citingR v CD [1976] 1 NZLR 436 (SC) at 437.[41] At the time the decision was made to arrest and charge Ms Cavanagh withtrespass, police had good cause to believe Ms Jackson was the landlord of the addressand Ms Cavanagh was not allowed to reside there. They were aware Ms Cavanaghhad left the address some five weeks earlier and was now unwanted at the addressbecause of unpaid board and the apparent abandonment of her room. She had thenbeen asked to leave the address by Ms Jackson, a vulnerable 80-year-old woman, buthad refused to do so. In the circumstances, it was not unreasonable for the police toadvise Ms Cavanagh she was trespassed from the property.[42] Importantly, the police did their best to ameliorate the difficulties this placedMs Cavanagh in. They offered her temporary accommodation or to relocate her, andoffered assistance in removing her personal belongings, but this assistance wasdeclined. While at the hearing Ms Cavanagh says she now understands theaccommodation offered was in the police cell, that is inconsistent with the policestatements of evidence and I do not accept it. Overall, I am satisfied the Judge wasentitled to view their efforts to defuse and resolve the situation as "genuine".[43] I also consider the Judge was correct to find that the police could notreasonably be criticised for laying a charge of trespass on the basis Ms Cavanagh wasnot permitted to stay at the house. The Judge described the legal position as "nuanced",although I consider Ms Cavanagh's assumption that she was protected by theResidential Tenancies Act 1986 was plainly not correct. Section 5 of that Act providesthat the Act does not apply in a range of specified cases. That includes where, as here,"the premises, not being a boarding house, continue to be used, during the tenancy,principally as a place of residence by the landlord or the owner of the premises or byany member of the landlord's or owner's family".17 Ms Cavanagh was a boarder in aprivate home and her entitlement to be there depended on what was agreed with theowner. In any event, after receiving defence submissions, police did not oppose thetrespass charge being dismissed.[44] In relation to the charge of resisting arrest, I agree that Ms Cavanagh's ownconduct significantly contributed to her arrest. Her conduct was clearly calculated to17 Residential Tenancies Act 1986, s 5(1)(n).make it as difficult as possible for the officers to execute their duty. I note the Courtof Appeal has clarified that the matters set out in s 5(2)(g) of the Act are concernedwith behaviour justifying an award, and not with behaviour disqualifying an award.18However, I am not satisfied any error arose in the Judge taking into account as arelevant circumstance the uncooperative and obstructive behaviour of Ms Cavanaghthat led directly to her being charged with resisting arrest.[45] The police also agreed to withdraw the resisting arrest charge in light of publicinterest considerations, including the passage of time, Ms Cavanagh's clean record andthe dismissal of the trespass charge. Their concessions were reasonable and proper,and demonstrate they continued to act in good faith throughout the course of theprosecution.[46] In any event, I am satisfied the Judge did not err in finding there was sufficientevidence to support a conviction on that charge. The words "in the execution of hisduty" in s 23(a) of the Summary Offences Act 1981 simply imply that the constablemust have been acting bona fide in the exercise of the powers vested in him or her asa constable.19 It is clear Ms Cavanagh intentionally obstructed a constable in theexecution of his duties. The fact she held a sincere belief she was entitled to stay atthe property and chose to debate the validity of the officers' decision to arrest her fortrespass does not make her disobedience any less intentional.20 That the underlyingtrespass charge was eventually dismissed does not vitiate the validity of the arrest, asI am satisfied the arresting officers had good cause to suspect Ms Cavanagh hadcommitted the trespass offence on the basis explained above.21 This was therefore nota case of a person ignoring a demand a constable was not entitled to insist on.22[47] In summary, the Judge's observations that police were "doing their best indifficult circumstances to try and find a solution to what was clearly a problem" were18 R v Lyttle, above n 12, at [18(g)].19 Spencer v Police (1989) 5 CRNZ 145 (HC) at 147.20 Minto v Police (1991) 7 CRNZ 38 (HC) at 42.21 Trespass under ss 4(4) and 11(2)(a) of the Trespass Act 1980 is punishable by up to three months'imprisonment. See the arrest power for an imprisonable offence in s 315(2)(b) of the Crimes Act1961.22 Sneller v Police [2007] NZAR 405 (HC).apt.23 I do not consider there was any discernible error in the exercise of the broaddiscretion afforded to the Judge.Conclusion[48] The appeal is dismissed.Solicitors:Raymond Donnelly & Co., ChristchurchCopy To:Ms Cavanagh23 Police v Cavanagh, above n 1, at [32].