RICHARD LINCOLN v NEW ZEALAND POLICE [2023] NZHC 467

RICHARD LINCOLN v NEW ZEALAND POLICE [2023] NZHC 467 [10 March 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000160[2023] NZHC 467BETWEEN RICHARD LINCOLNAppellantAND NEW ZEALAND POLICERespondentHearing: 9 March 2023Appearances: Appellant appears in PersonW S Taffs for the RespondentJudgment: 10 March 2023JUDGMENT OF GENDALL JIntroduction[1] The appellant, Mr Richard Lincoln was charged with and found not guilty ofassaulting Geoffrey Cavell with a blunt instrument on the basis that the prosecutionhad failed to prove the charge beyond a reasonable doubt. He applied for an order forcosts under s 5 of the Costs in Criminal Cases Act 1967 (CCCA) on 24 February 2022.1He sought $1,356.90 in disbursements on the grounds of purported misconduct ofpolice, the prosecutor, registry and judiciary.2 The Crown opposed the application andsaid these claims were entirely without merit.1 Mr Lincoln, it seems represented himself and the parties agreed at a teleconference on 25 March2022 that the matter would be dealt with on the papers.2 That schedule of costs sets out travel and accommodation expenses.[2] Mr Lincoln's application was denied on 5 May 2022 in the ChristchurchDistrict Court.3 Mr Lincoln appeals this decision. The appeal has been brought outof time. He seeks that the Court reverses the order made in the District Court andawards all the disbursements he applied for. The Crown opposes any award andcontends this appeal ought to be dismissed.District Court decision[3] Judge Gilbert in the District Court was the Judge who sat on the hearing ofMr Lincoln's assault trial. He also dealt with Mr Lincoln's application for costs on thepapers and did so with the benefit of written submissions.[4] In his judgment, he recorded that much of Mr Lincoln's submissions wereirrelevant to the application, and they were intemperate and inflammatory.4 The Judgestated that he understood the submissions but would not "engage with them outside ofthose matters that [he] consider[ed] relevant to the issue of costs in the prosecution"as to do so "would be to dignify Mr Lincoln's rant in a way it does not deserve".5[5] Judge Gilbert confirmed that he considered there was sufficient evidence forthe police to charge Mr Lincoln with assault with a weapon. This included thestatement from the complainant, a corroborating statement from a witness, Mr Ebben,who observed the incident, and further that Mr Lincoln made comments to police thatwere contrary to these statements (although he did not give a formal interview).6 TheJudge noted that Mr Lincoln was found not guilty principally because the evidenceMr Ebben gave at trial differed from his previous statements to police, and the Judgecould not determine what happened on the day in question as a result.7[6] The fact that there was a history between Mr Lincoln and Mr Cavell, the victim,and between Mr Lincoln and police he accepted did not make it inappropriate for the3 New Zealand Police v Lincoln [2022] NZDC 7676 (per Judge T Gilbert).4 At [5].5 At [7].6 At [14]–[15].7 At [16].charge to be laid.8 The Judge rejected Mr Lincoln's assertion of bad faith on behalf ofthe police and prosecution. He concluded:[19] In summary, in my view there is nothing in the way in which theinvestigation or the prosecution was conducted that would militate in favourof a grant of costs. That, of course, does not necessarily rule out such an order,but it is relevant.[7] Judge Gilbert also considered that Mr Lincoln's conduct during the trialmilitated against an order for costs. In particular, this related, he said, to Mr Lincoln'sconduct towards Constable Murton (the officer in charge) and his responses to theprosecution in cross-examination.9 The Judge then summarised some of theobservations made about Mr Lincoln's character by Dunningham J in Lincoln v NewZealand Law Society in her Honour's finding to uphold the decision to decline to admitMr Lincoln to the legal profession (including passages from the appeal ofDunningham J's judgment).10 The Judge included these passages "because they soaccurately encapsulate the aggressive, bullying and unbalanced flavour of what [he]saw play out in court, along with [Mr Lincoln's] cost submissions."11 The applicationfor costs was declined.12LawApproach to appeal[8] Mr Lincoln does not specify the provision under which he brings this appeal.A person affected by a decision to refuse to make a costs order may appeal the decisionaccording to s 271 of the Criminal Procedure Act 2011. This Court may confirm, varyor set aside the decision, or make any other order it considers appropriate.13 As anappeal against a discretion, Mr Lincoln must establish that the decision involved anerror of law, a consideration of an irrelevant matter or a failure to consider relevantmatters, or that it was plainly wrong.14 As noted by the Supreme Court in R v Reid:158 At [17].9 At [19]–[20].10 At [22]–[23].11 At [24].12 At [25].13 Criminal Procedure Act 2011, s 247.14 R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [23]; V v R [2013] NZCA 211 at [21]–[22]; andHutson v R [2019] NZCA 550 at [8]–[10].15 At [23].An appellate court cannot hope to capture the ephemeral but significantimpressions which inform the assessments and discretions of the trial judge.That is why, of course, a challenge to the exercise of discretion mustdemonstrate what would be termed, generally, an error of principle.[9] The court may grant leave to bring an appeal (such as the present appeal) outof time where it is in the interests of justice to do so in the particular case.16 The courtmust balance the public interest in the finality of decisions against the interests of theappellant. Other relevant factors include the strength of the proposed appeal andpractical utility of the remedy sought, the length of the delay and the reasons for it, theextent of the impact on others similarly affected and on the administration of justice(a floodgates consideration), and the absence of prejudice to the Crown.17 Theappellant bears the onus of satisfying the court that granting leave to appeal out of timeis in the interests of justice.18The CCCA[10] Section 5 of the CCCA empowers a court to award costs to a successfuldefendant.19 That section 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:16 R v Knight [1998] 1 NZLR 583 (CA) at 589.17 At 589.18 R v Davis [2007] NZCA 577 at [13].19 The court's power to award costs under the CCCA is not limited or affected by the costs provisionin the Criminal Procedure Act. Criminal Procedure Act, s 364(9).I whether the prosecution took proper steps to investigate anymatter coming into its hands which suggested that thedefendant might not be guilty:(d) whether generally the investigation into the offence wasconducted in a reasonable and proper manner:I 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 acquired 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.[11] If the court decides under s 5 to grant a costs order to a defendant and theprosecution was conducted by or on behalf of the Crown, then the costs are paid bythe Chief Executive of the Ministry of Justice.20 Costs are payable against theprosecution where the court considers there is negligence or bad faith on the behalf ofthe prosecution.21 A self-represented litigant is not entitled to costs but can recoverdisbursements.22This case[12] Mr Lincoln's submissions contend that the District Court Judge erred here inthat he failed to take into account relevant considerations and took into accountirrelevant considerations including inadmissible evidence. His submissions can besummarised in this way, arguing that Judge Gilbert erred by:20 Section 7(1)(a).21 Section 7(2).22 Herlihy v R [2020] NZCA 11.(a) failing to engage with Mr Lincoln's submissions related to the "badfaith" nature of the proceedings;(b) considering "inadmissible civil judgments", that is, Mr Lincoln'sappeals of the Law Society decision to refuse to admit him to theprofession;(c) finding there was sufficient evidence for prosecution and that theinvestigation occurred in a reasonable manner; and(d) failing to consider the history of police interactions with Mr Lincoln.[13] The respondent submits leave should be refused to extend the time for the filingof the appeal here, on the basis that no explanation was provided for the delay, theappeal in any event is without merit and largely vexatious, and there is no publicinterest in the court hearing the appeal. As to the substantive appeal itself, therespondent says that costs are not warranted in light of the considerations set out in s5 of the CCCA. That is, the prosecution was brought and continued in good faith,there was sufficient evidence to bring and continue the prosecution, the prosecutiontook appropriate investigatory steps in relation to matters suggesting the appellantmight not be guilty of all the charges he faced and the investigation was conducted ina reasonable and proper manner.Leave to appeal[14] At the outset, I need to say that I consider it would not be in the interests ofjustice to grant leave to appeal in this case. The costs judgment was issued on 5 May2022. Mr Lincoln filed his notice of appeal on 25 October 2022, some five monthslater. He does not explain the reason for the delay in bringing the appeal nor does hejustify why granting leave would be in the interests of justice. I also consider themerits of the appeal in any event are low. This is highlighted by my reasons which Ioutline more fully below.Exercise of discretion[15] When reviewing the Judge's exercise of the s 5 discretion to grant or refuse anorder for costs, the purpose of the legislation should be kept in mind. The CCCA is acode setting out the circumstances in which the court may exercise its discretion toorder costs in a criminal case. That Act is primarily compensatory in nature, achievingthe appropriate balance between providing "a level of reimbursement to innocentdefendants and a means to censure improper prosecution conduct".23 Most ofMr Lincoln's submissions focus on alleged improper prosecutorial conduct.[16] While I accept Mr Lincoln met the jurisdictional prerequisite of success in thecriminal proceeding, he must satisfy the Court that the s 5 discretion should beexercised in his favour.24 The s 5(2) factors are intended to provide "a structure ofanalysis to be adapted by the Court to the particular circumstances of the case".25Mr Lincoln's submissions address several of these factors. I deal with these below.Bad faith prosecution and evidential sufficiency[17] Mr Lincoln submits that Judge Gilbert failed to find that the prosecution wasnot taken in good faith and was used for the ulterior purpose of "taking revenge on theappellant". Further, he suggests the Judge did not consider the failure of police to dealwith Mr Lincoln's complaints against Mr Cavell. Related to the bad faith claim,Mr Lincoln says that the investigation was not conducted reasonably as first, the policefailed to take a statement from him; secondly, inadequately interviewed Mr Ebben forhis formal written statement and thirdly, ignored evidence of the history betweenMr Cavell and Mr Lincoln. As to evidential sufficiency, Mr Lincoln submits thatMr Cavell's evidence was not credible or reliable.[18] Section 5(2)(a)–(d) somewhat overlap here and I address them together. As tos 5(2)(a), a finding that the prosecution has not acted in good faith may be a strongpointer that costs should be awarded.26 Related to bad faith are criteria (c) and (d)23 Te Aka Matua o te Ture | Law Commission Costs in Criminal Cases (NZLC R60, 2000) at [4].24 See Solicitor-General v Moore [2000] 1 NZLR 533, (1999) 17 CRNZ 671 (CA) at [31]; and R vReid, above n 14.25 R v Connolly (2006) 22 NZTC 19,844 (HC) at [7], affirmed in R v Reid, above n 14, at [21]–[23].26 T v Collector of Customs HC Christchurch AP167/94, 28 February 1995 at 4 per Tipping J.which pertain to the reasonableness of investigation. These criteria enable a court tolook at the police conduct of the prosecution objectively. The applicant has the burdenof establishing that the police failed to meet the standard of a reasonable prudentprosecutorial authority.27[19] I agree with the respondent's submissions that Mr Lincoln's claims of bad faithand unreasonable investigation here are unsubstantiated and hyperbolic. As anexample, in the opening paragraph of his submissions for his original costs application,Mr Lincoln states:Context is relevant to the present application. The charge against the applicantwas instigated by the organisation that identifies itself as the 'New Zealandpolice.' The applicant considers that organisation to be an organised criminalgroup and accordingly identifies it as the 'OCG.'Mr Taffs [the prosecutor] freely chooses to wallow in the criminal injusticecesspool with the other parasitic shysters who profit off the victims ofmisfeasance by the OCG; therefore he accepts being a legitimate target forzealous resistance, dissent and objection.Judge Gilbert correctly concluded in my view that he did not need to engage withmany of Mr Lincoln's submissions. Mr Lincoln's submissions are vexatious, and theyappear to have been made in what can only be seen as bad faith. I also rejectMr Lincoln's submission that the Judge did not properly deal with these allegations.While Judge Gilbert did not engage with the minutiae, he expressly dismissedMr Lincoln's claims of bad faith on the part of the police and the prosecutionauthorities in the following manner:[18] I reject the assertion that the prosecution was brought or continued inbad faith. It appeared to me that Constable Murton, as the officer in charge,discharged her duties appropriately during the investigation and in court.Similarly, Mr Taffs, who was given the unfortunate task of prosecuting thematter in Court, acted appropriately and professionally as I have come toexpect of him. The various assertions Mr Lincoln makes about members ofthe judiciary and registry staff are simply not relevant, and are unjustified.[20] Relevant to the Judge's conclusion on these points is his finding that theprosecution was commenced and continued with evidential sufficiency.28 A portion of27 Long v Police [1996] 1 NZLR 377 (HC) at 381.28 New Zealand Police v Lincoln, above n 3, at [14].his conclusion relating to s 5(2)(b) of the CCCA Act is directed to the evidenceavailable to the prosecution which he concluded was sufficient at the commencementof proceedings. In R v Morgan, this was also held to mean the evidence at the time ofarrest, charge and filing of the charging document.29[21] Mr Lincoln appears to claim that the prosecution evidence rested solely onMr Cavell's account. Nevertheless, Judge Gilbert correctly recorded that theprosecution was based on that account of Mr Cavell, and on Mr Ebben's evidence andthat of the constable attending. Mr Ebben and Mr Cavell's evidence were broadlycorroborative.30 The Judge explicitly recognised the challenges with Mr Ebben'sevidence (the formal written statement later being inconsistent with the oral evidence),the history between Mr Lincoln and Mr Cavell, and the history between Mr Lincolnand the police. He concluded that "those facts do not mean it was inappropriate forthe police to charge Mr Lincoln given the evidence picture with which they presentedon 19 March 2021".31[22] Judge Gilbert here clearly had the benefit of presiding over both Mr Lincoln'scriminal trial and his application for costs and therefore had a direct insight into thepropriety of the prosecution. I am not satisfied in any way here that the Judge erredin assessing these criteria.Ad hominem "attacks"[23] Next, Mr Lincoln contends that, instead of engaging with Mr Lincoln'ssubmissions on the improper use of the criminal justice system, Judge Gilbert simplyresponded "ad hominem" or personally attacked Mr Lincoln. For the reasons givenabove, I do not accept the Judge failed to address the submissions in a proper fashion.He did so directly. Mr Lincoln further adds that the Judge considered an irrelevantfactor when referring to civil Law Society proceedings in his decision to refuse a costsorder. He appears to take offence with how the Judge characterised him and saysreference to the proceedings is contrary to s 50 of the Evidence Act 2006. The effect29 R v Morgan (1990) 6 CRNZ 130 (HC) at 134.30 New Zealand Police v Lincoln, above n 3, at [15].31 At [16]–[17].of this section is that the evidence of both judgments and findings of fact in civilproceedings are inadmissible if the purpose for which they are offered is "to prove theexistence of a fact that was in issue in the proceeding in which the judgment wasgiven".[24] The Law Society related proceedings were raised with the Judge in the policesubmissions on Mr Lincoln's costs application in response to his bad faith claims. Therespondent says it was right to raise these proceedings to rebut Mr Lincoln'scharacterisations of his interactions with police, the Crown and judiciary. Thatcharacterisation was that he was the target of bad faith.[25] Mr Lincoln's claim here is relevant to s 5(2)(g) – whether the behaviour of thedefendant in relation to the acts or omissions on which the charge was based and tothe investigation and proceedings was such that a sum should be paid towards the costsof his defence. There have been prior conflicting High Court authorities on the aspectsof a defendant's behaviour that a court may consider. Justice Asher in Morris v Policeclarified that:32[36] The factors set out in s 5(2) are not exclusive. I can see no reason,based on the purposes of the CCCA or the words of s 5(2)(g), to limit theconsideration of behaviour to that which favours the defendant. Just as thedefendant's claim for costs will be strengthened if the defendant has beenentirely open and cooperative with Police, it should be weakened if there hasbeen a lack of openness and co-operation in the face of suspiciouscircumstances. A defendant seeking indemnity costs will be in a strongerposition if it is shown that reasonable steps were taken on his or her part todissuade the Police from proceeding further.[26] I agree with the respondent that s 50 of the Evidence Act is not engaged here.The civil judgments were not relied on to make any finding as to Mr Lincoln'sbehaviour or character but were used simply as an illustrative example to "encapsulatethe aggressive, bullying and unbalanced flavour of what [he] saw play out in court,along with his cost submissions".33 The Judge did not abdicate his responsibility todetermine the facts relevant to s 5(2)(g) himself.32 Morris v Police [2013] NZHC 1336 at [36].33 At [24].[27] Pursuant to s 5(2)(g), the Judge was clearly entitled to consider Mr Lincoln'sconduct during the investigation and trial for these proceedings. He expressly did soin his decision where he found that Mr Lincoln's "conduct during the trial in relationto Constable Murton, who was a witness, was unacceptable". Further, that "hisconduct when being questioned by Mr Taffs was similarly unappealing. The natureand tone of [his] intemperate and inflammatory submissions follow a similarvein".34[28] While reference to the Law Society-related civil proceedings did not impugn s50 of the Evidence Act, I consider that these proceedings had limited relevance. TheJudge had already made findings as to Mr Lincoln's behaviour during his assault trial.Reference to the civil proceedings was perhaps needlessly inflammatory. While oflimited relevance, reference to the civil proceedings was not material to the decision.They were referred to only in relation to one factor, the Judge was required to considerunder s 5(2). The Judge had previously set out other factors that militated againstmaking a costs order in Mr Lincoln's favour.[29] For these reasons, I have found no error in the Judge's decision refusing anorder for costs. Accordingly, I dismiss this appeal.Conclusion[30] Leave to appeal out of time is declined, and in any event Mr Lincoln'ssubstantive appeal is dismissed.Gendall JSolicitors:Copy to ApplicantRaymond Donnelly & Co for the Respondent34 New Zealand Police v Lincoln, above n 3, at [21].