THE SOLICITOR-GENERAL OF NEW ZEALAND V PITMAN AND ANOR HC AK CIV 2006-404-1265

THE SOLICITOR-GENERAL OF NEW ZEALAND V PITMAN AND ANOR HC AK CIV 2006-404-1265 15 June 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-1265BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND Applicant AND MARK ANTHONY PITMAN First Respondent AND NOLA ANNETTE PAWA Second Respondent Hearing: 15 June 2006 Counsel: MR Harborow for Applicant MS Gibson for Respondents Judgment: 15 June 2006ORAL JUDGMENT OF RODNEY HANSEN JSolicitors: Meredith Connell, P O Box 2213, Auckland for Applicant Mr MS Gibson, 34 London Street, St Mary's Bay, Auckland for Respondents[1] Mr Gibson applies under s 42(2)(c) of the Proceeds of Crimes Act 1991 for an order making provision for the first respondent reasonable expenses in defending criminal proceedings and the reasonable expenses of both respondents in relation to proceedings under the Proceeds of Crimes Act 1991. [2] There is no concern with the hourly rate sought by Mr Gibson - $275 per hour. That is approximately equivalent to 150% of the senior hourly rate payable under the Crown Solicitors Regulations 1994 and is reasonable, in accordance with the judgment in Solicitor-General v Panzer [2001] 1 NZLR 224. Nor is any issue taken with the rate of $1,100 plus GST per half day or $2,200 plus GST per day proposed for hearing time of the civil and criminal proceedings. The concern which Mr Harborow has is with the times which form the basis of Mr Gibson's estimate of reasonable legal expenses. They are: Bail application 5 hours preparation time Pre-trial applications 25 hours preparation time Trial 150 hours preparation time Proceeds of crime proceedings 40 hours preparation time These estimates have largely relied on allowances made in Solicitor-General v Darwish HC AK CIV 2004-404-1603 18 March 2005, a case which Mr Gibson submits to involve a similar level of complexity to the present. In that case Winkelmann J allowed 25 hours for preparation for pre-trial applications and 150 hours for trial preparation. [3] Mr Harborow, on the other hand, points to the allowances made in the case ofSolicitor-General v De Bruin HC AK CIV 2002-404-003302 22 July 2005, in which 90 hours was allowed for trial preparation and which, he submits, provides a more reliable guide to what is reasonable in this case.[4] There is no doubt that this will be a relatively complex, time-consuming and costly trial. There are 15 accused of which Mr Pitman is regarded as the principal. The charges arise out of an alleged large scale cannabis growing and distribution operation. There is reliance on 105 intercepted conversations and 130 text messages. Disclosure is extensive. Already one electronic disc containing 6-7,000 pages of hard copy has been provided. It is anticipated that a further disc containing as many, if not more, documents will be produced. The trial is estimated to take eight weeks. In relation to the proceeds of crime proceedings, there has already been a considerable number of attendances and Court appearances involving both the accused and his partner, the second respondent. [5] Mr Harborow does not suggest that it is realistic to make the basic provision for trial preparation of 10 hours proposed in Panzer. However, he points out, with justification in my view, that at this stage defence counsel has simply failed to provide sufficient grounds to support the estimates for preparation for pre-trial applications, the trial itself and the proceeds of crime proceedings. [6] I find that submission irresistible and Mr Gibson does not really seek to refute it. The case is still two months away from depositions. Disclosure proceedings have only just begun. The only anticipated pre-trial application at this stage arises out of a challenge by the Crown to a District Court Judge's refusal to direct that the Crown provide disclosure by way of hard copy of the contents of one of the electronic discs. Mr Harborow acknowledges that once depositions have been completed and disclosure is further along the track, it is highly likely that there will be further and, in all likelihood, time-consuming pre-trial applications. But whether or not they will materialise and what they will involve is in the realm of speculation. [7] At this early stage it is simply not possible to make a realistic informed assessment of the reasonable time that preparation for trial and pre-trial applications is likely to require. For these reasons, I consider the only practicable and just approach is to make an order based on a conservative assessment of the time required and to expressly reserve leave to Mr Gibson to apply further for a revision of the order if it emerges that the estimates are unrealistic and further preparation time is required.[8] On this basis, I make orders authorising the payment of legal expenses to Mr Gibson at the rate of $275 per hour plus GST and for hearing time at a rate of $1,100 plus GST per half day or part thereof and $2,200 plus GST per day. Attendances for which deduction is authorised are limited as follows: Criminal proceedings, bail application 5 hours preparation time Pre-trial applications 10 hours preparation time Trial 100 hours preparation time Proceeds of crime proceedings 30 hours preparation time Leave is expressly reserved to the parties to apply to review the allowances made. I further order that deductions for disbursements of up to $1,000 may be made to cover printing costs, cases and research, travel time and expenses, and telephone, fax, tolls and postage. [9] Save in respect to the costs relating to the proceeds of crime proceedings, for the payment of which there may be access to the second respondent's bank accounts, the costs shall come in the first instance from the bank accounts in the name of the first respondent and then from the proceeds of sale of the motorcycles subject to the restraining order.