NICOLE LIM-KWAN v NEW ZEALAND POLICE [2019] NZHC 1111

NICOLE LIM-KWAN v NEW ZEALAND POLICE [2019] NZHC 1111 [20 May 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000102[2019] NZHC 1111BETWEEN NICOLE LIM-KWANAppellantAND NEW ZEALAND POLICERespondentHearing: 20 May 2019Appearances: J Scott for the AppellantM Harborow for the RespondentJudgment: 20 May 2019ORAL JUDGMENT OF HINTON JSolicitors:Public Defence Service, AucklandMeredith Connell, Auckland[1] On 11 January 2019 a sentencing hearing for Rory Findlay, the defendant inthis proceeding, was adjourned by Judge Jelas as a result of late filing of an applicationunder s 106 of the Sentencing Act 2002 for an order that Mr Findlay be dischargedwithout conviction. Judge Jelas issued a Minute dated 11 January 2019 referring tocosts of $130 and subsequently made a costs order of $150.[2] The appellant is the lawyer from the Auckland Public Defence Service whoappeared for Mr Findlay. She appeals the costs order.[3] As a preliminary point, I note that the respondent named in the appeal is theAuckland District Court. The appropriate respondent remains the opposing party inthe underlying prosecution, being the New Zealand Police. Counsel for the respondentconfirms that he is representing the Police.[4] Both counsel agree that, although not express, the most natural inference fromall of the circumstances (including the transcript and the Judge's Minute of 11 January2019) is that Judge Jelas made the costs order against counsel under s 364 of theCriminal Procedure Act 2011 (the Act). In those circumstances, I agree thatMs Lim-Kwan is the appropriate appellant.Substantive appeal[5] I agree with the appellant that the award of costs was in error. I note also thatthe respondent acknowledges it is unable to support the decision.[6] Under s 364(2) of the Act, the Court may order the defendant, the defendant'slawyer, or the prosecutor to pay a sum in respect of any procedural failure by thatperson in the course of a prosecution if the Court is satisfied that the failure issignificant and there is no reasonable excuse for that failure.[7] It seems there was a "procedural failure" by the failure to file Mr Findlay'sapplication for discharge without conviction in accordance with the timetable ordersmade by the Court. "Procedural failure" is defined in s 364(1) to include a failure tocomply with a requirement imposed under the Criminal Procedure Rules 2012. Inturn, r 1.5(2) of the Criminal Procedure Rules gives the Court jurisdiction to make anydirections or rulings about a matter that the Court considers "appropriate in theinterests of justice". Timetable orders such as that made in this case plainly fall withinthis provision.[8] However, this "procedural failure" cannot be regarded as "significant" unders 364(2), particularly on the part of counsel. Numerous attempts had been made bythe Public Defence Service to contact Mr Findlay and it had filed a memorandum,which it seems was not before the Court, nor unfortunately was that known toMs Lim-Kwan, who appeared on the day.[9] For the same reasons, namely the efforts made by the Public Defence Serviceto advance the application and the memorandum, defence counsel clearly had a"reasonable excuse" for the failure (even if the failure could be regarded as"significant").[10] Accordingly, in all the circumstances, Judge Jelas had no jurisdiction to makethe costs order against counsel.[11] On appeal, this Court does have jurisdiction to vary the Judge's decision (so asto make the award against Mr Findlay).1 However, Mr Findlay's lack of representationon the appeal clearly militates against considering that option.[12] For the above reasons, the appeal is allowed and the costs order is set aside.----------------------------------------------------------Hinton J1 Criminal Procedure Act 2011, s 274(b).