WAAKA-TIMOTI v POLICE [2020] NZHC [ 1541]

WAAKA-TIMOTI v POLICE [2020] NZHC [ 1541] [2 July 2020]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2020-419-000019[2020] NZHC 1541BETWEEN TIARE WAAKA-TIMOTIAppellantAND NEW ZEALAND POLICERespondentHearing: 24 June 2020Appearances: Appellant in personB T Vaili for RespondentJudgment: 2 July 2020JUDGMENT OF PAUL DAVISON JThis judgment was delivered by me on 2 July 2020 at 11:00 ampursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Crown Solicitor, HamiltonIntroduction[1] Tiare Waaka-Timoti (the appellant) appeals from the judgment of Judge Ingramsitting in the District Court at Hamilton in which he dismissed the appellant'sapplication under the Costs in Criminal Cases Act 19671 which he had made followingthe withdrawal of the criminal charges which had been laid against him.2Background[2] In October 2018 the New Zealand Police laid three charges against theappellant. He was charged with assaulting a police constable with intent to obstructthe constable in the execution of her duty on 17 October 2018,3 and two charges ofresisting a police constable in the execution of her duty also on 17 October 2018.4[3] The three charges were filed in the District Court at Hamilton on 23 October2018. On that day the appellant appeared before the District Court and was remandedon bail without plea. On 2 November 2018 the appellant appeared again before theDistrict Court and entered pleas of not guilty to the three charges. He informed theCourt that he would be self-represented in defending the charges. He was remandedwith bail to continue to 19 December 2018.[4] The appellant next appeared before the District Court on 19 December 2018and was remanded for a defended hearing of the charges on 15 March 2019. Howeveron 14 March a Deputy Registrar noted that there was no Judge-alone time available toschedule the hearing, and the appellant was remanded for a further nominal call-overappearance on 17 May 2019 for the purpose of setting a trial date.[5] On 17 May 2019 the Court adjourned the appellant's matter to 26 July 2019 asa suitable time to schedule a Judge-alone trial had still not been determined. The Courtadvised the parties, and it appears that the appellant was not required to attend at theCourt on that occasion. The appellant was again remanded for a further nominal call-over appearance on 26 July 2019 for the purpose of setting a trial date.1 Police v Waaka-Timoti [2020] NZDC 3372.2 Police v Waaka-Timoti [2019] NZDC 26551.3 Crimes Act 1961, s 192(2).4 Summary Offences Act 1981, s 23(a).[6] On 26 July 2019 the Registrar determined that there was no Judge-alone timeavailable, and the matter was adjourned to 18 October 2019 for a further "nominal"call-over to set a trial date, and the appellant further remanded with his bail to continue.Although the Court noted that the parties had been notified of the adjournment, theappellant attended in person at the Court the following day, 27 July 2020, and wasadvised of the further hearing date.[7] The appellant next appeared before the Court for the call-over on 18 October2019, when again the matter was adjourned because there were no Judge-alone datesavailable. He was again remanded, bail to continue, to a nominal date of 7 February2020.[8] On 19 November 2019 the Court noted that it was unable to schedule theappellant's matter for a defended hearing during January 2020 due to the unavailabilityof Police witnesses.[9] On 12 December 2019 the appellant again appeared self-represented before theCourt, and on this occasion the Police applied for leave to withdraw the charges, whichwas granted by Judge Ingram.5[10] On 11 February 2020 the appellant filed an application for costs and theapplication was heard by Judge Ingram on 20 February 2020. The appellant appearedand was self-represented.[11] In a short decision declining the application Judge Ingram said:6[2] His written application sets out a good deal of detail, but unfortunatelyhe does not deal with the most significant legal point, which is that the Courtof Appeal has ruled in the case of R v Meyrick and recently, in fact just lastweek on 11 February in R v Herlihy and I quote, "The Court has no jurisdictionto grant an application for costs where a person is self-represented." And toquote from R v Herlihy, "A self-represented litigant is not entitled to costsunder the Costs in Criminal Cases Act."[footnotes omitted]5 Police v Waaka-Timoti [2019] NZDC 26551.6 Police v Waaka-Timoti [2020] NZDC 3272.Grounds of appeal and the appellant's submissions[12] The appellant appeals on the grounds that the Judge had "no jurisdiction overmana whenua" and, "no jurisdiction over native title etc".[13] In support of his appeal the appellant has filed and relied on the contents of adocument entitled "Application for Statutory costs" the first paragraph of which readsas follows:Following dismissal of charges at the end of the informants [sic] case by JudgeT.R. Ingram on the 12th day of December 2019, the defendant KaitiakiRangatira Marshall and Native Assessor Tiare Waaka Timoti applies for fullstatutory damages, pursuant to the Cost [sic] in Criminal Cases Act 1967,Companies Act 1993, United Nations Declaration on the Rights of IndigenousPeoples' 2007 and Te Ture Whenua Māori Act 1993/5 to promote goodprosecution standards and reform or deter others from similar actions, withoutprejudice for the full statutory indemnity costs of $1,000,000.00 New Zealanddollars plus GST, [sic][14] The appellant refers to s 5 of the Costs in Criminal Cases Act 1967 (the Act),and to the matters specified in s 5 as being those required to be taken into account bythe Court when deciding whether to grant costs to a successful defendant. Howeverthe appellant has not presented any evidence that he incurred any expenses inconnection with conducting his defence to the charges.[15] In his memorandum filed in support of his appeal the appellant alleges that thecriminal charges he faced were laid, and thereafter prosecuted, by the Policenotwithstanding that there was insufficient evidence to support a conviction on thecharges. He alleges that without cogent evidence to support the charges theprosecution amounted to an attempt to pervert the course of justice. He also allegesserious misconduct on the part of the police officers involved in the events from whichthe charges against him arose and those involved in the prosecution throughout theentire course of the case through the Court system.[16] The appellant further alleges that between 13 December 2018 and 12December 2019, the police prosecution had failed to comply with a defence disclosurerequest for relevant information regarding "current Statutory legislation enacted byParliament of New Zealand". He submits that the non-compliance with the disclosurerequest is evidence of serious misconduct by police in the manner in which the matterwas prosecuted. However, the appellant has not provided any details or evidence tosupport the allegations he has made, either as regards the alleged non-compliance bythe prosecution with a disclosure request, or as regards the other allegations of policeand prosecution misconduct made in his memorandum and submissions.[17] The appellant also refers to and relies on art 28 of the United NationsDeclaration on the Rights of Indigenous Peoples 2007 which provides:71. Indigenous peoples have the right to redress, by means that caninclude restitution or, when this is not possible, just, fair and equitablecompensation, for the lands, territories and resources which they havetraditionally owned or otherwise occupied or used, and which have beenconfiscated, taken, occupied, used or damaged without their free, prior andinformed consent.2. Unless otherwise freely agreed upon by the peoples concerned,compensation shall take the form of lands, territories and resources equal inquality, size and legal status or of monetary compensation or other appropriateredress.[18] The appellant inexplicably also relies on s 373(4) of the Companies Act 1993which contains the penalties for non-compliance with specified provisions of theCompanies Act, which has no application to this appeal.[19] Furthermore, in his impassioned oral submissions, the appellant also referredto case law from Canada and the United States of America which he says providessupport for his claim for costs, however he did not address or refer to the Court ofAppeal decisions in R v Meyrick and R v Herlihy, upon which Judge Ingram's decisionwas founded.Respondent's submissions[20] Ms Vaili, for the respondent, submits that the Court does not have jurisdictionto make an order for costs in favour of the appellant. She submits that the appeal andapplication for costs should be dismissed.7 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007).Discussion[21] The appellant was self-represented throughout the proceedings relating to thethree criminal charges brought against him. He was required to attend Court on anumber of occasions over the approximately 14 month period following his arrest inOctober 2018 which inevitably disrupted his life and involved him in spending whatproved to be wasted time preparing his defence. However, as a self-representeddefendant he did not incur any expenses related to carrying out his defence.[22] Costs, for the purposes of the Costs in Criminal Cases Act 1967 are defined asfollows:2 InterpretationIn this Act, unless the context otherwise requires,—costs means any expenses properly incurred by a party in carrying outa prosecution, carrying on a defence, or in making or defending anappeal.[23] Section 8(1) of the Act provides:8 Costs on appeals(1) Where any appeal is made pursuant to any provision of Part 6 of theCriminal Procedure Act 2011 the court which determines the appealmay, subject to any regulations made under this Act, make such orderas to costs as it thinks fit.[24] The Court of Appeal considered the issue of whether a successful self-represented defendant could obtain an award of costs in R v Meyrick.8 Referring to theAct and Costs in Criminal Cases Regulations 1987, the Court said:[16] The most obvious interpretation of the relevant provisions of the Actand Regulations is that they contemplate awards of costs to provide partialreimbursement for expenses incurred (see the definition of "costs") by way offees paid to barristers and/or solicitors (see the relevant heading in theschedule). This interpretation would exclude an award of costs for any self-represented appellant, even one who is a practising lawyer.[17] What we do not accept, however, is that the relevant statutorylanguage permits an award of costs in relation to the work of someone who isnot a practising lawyer.8 R v Meyrick [2008] NZCA 45.[18] On the basis of the general principles which are applied in the case ofself-represented litigants, and in light of the particular statutory provisionswhich apply to criminal cases, we conclude that we have no jurisdiction tomake an award of costs.[25] The Court of Appeal recently applied Meyrick in Herlihy v R9, where a self-represented appellant applied for costs following his successful appeal againstconviction. The Court observed that a self-represented litigant is not entitled to costsunder the Act, and noted that it did not have jurisdiction to grant the appellant'sapplication for costs on his appeal.[26] Accordingly, notwithstanding that he was a successful defendant in terms ofs 5(1) of the Act following the withdrawal of the charges on 12 December 2019,having been self-represented, the appellant is unable to claim costs. It follows thatJudge Ingram made no error in his judgment of 20 February 2020 in which hedismissed the appellant's application for costs.[27] The appellant has raised a number of matters which are quite beyond the scopeof an application for costs in the context of a criminal prosecution, and irrelevant tothe issues arising in relation to his appeal. The appellant clearly holds strong viewsregarding the merits of the charges he faced, how they were prosecuted by the Police,and the lengthy delay due to the succession of adjournments he endured before thecharges were eventually withdrawn. While the adjournments due to the unavailabilityof judicial resources were apparently administratively necessary, the delay resultingfrom the repeated adjournment of his case understandably has caused the appellant tobecome frustrated and distressed. The delays experienced by the appellant in havingthe charges heard and determined were quite unacceptable and inconsistent with theappellant's right to have his criminal charges dealt with, without delay.10 In hissubmissions on this appeal the appellant made claims for compensation for havingbeen prosecuted, but as I have noted, an appeal against the decision of the DistrictCourt declining his application for costs is not the appropriate legal proceeding inwhich to advance those complaints or to make a claim for compensation.9 Herlihy v R [2020] NZCA 11 at [2].10 New Zealand Bill of Rights Act 1990, s 25(b).Result[28] The appeal is dismissed._____________Paul Davison J