This article was initially written in 2014 and looks at the Costs in Criminal Cases Act 1967 and why it is rarely used, why criminal cases are treated differently to civil, and how this highlights societies lack of interest in the presumption of innocence. The article has not been updated in any material way since 2014 and notably does not explore how our broken legal aid system can be seen as both a cause and potential cure for the problem of costs.
Introduction
The question of whether to award costs in criminal cases has been the subject of surprisingly little debate in New Zealand. The current law, encapsulated mainly in the Costs in Criminal Cases Act 1967 (CCCA),[1] was intended to ensure a just and reasonable approach to costs was taken. However, the CCCA and associated regulations have failed to keep pace with changes in society. With no meaningful updates occurring for over a quarter of a century, it is unsurprising that many involved in criminal justice do not generally consider costs as being available.[2]
In comparison, criminal costs have become an important and somewhat controversial topic in other parts of the world.[3] In Europe, the ability of a party to recover costs is seen as an essential part of ensuring a fair trial is available.[4] Even in New Zealand, it is accepted that it is unjust for those who did not commit an offence to be left with the financial burden of simply maintaining their innocence.[5] Many would also argue that it is fair that those convicted of crimes contribute to the cost of bringing them to justice.[6]
This raises the question of why criminal costs have been ignored for a long, while the law of civil costs continues to flourish. There is no doubt that awarding costs in criminal proceedings involves several complex issues. For example, the interface with legal aid, whether Police should pay costs, private versus state prosecution and what constitutes a “criminal” offence are issues the civil law can largely ignore.[7]
The danger is that these issues can become a distraction. Before many of these details can be resolved, we must first understand why costs are awarded and whether the current approach is justified. Unfortunately, there has been little to no analysis on this in New Zealand.
The following paper seeks to address this by first looking at the historical basis for awarding criminal costs and then analysing the current approach. The focus is on addressing the question of why and how costs should be awarded to either the prosecution or defence. Only once we understand what the general approach to criminal costs should be, does it become possible to debate how to make it work in practice.
The Evolution of Criminal Costs
The concept of awarding costs in both civil and criminal proceedings is one of great antiquity. The ancient Greeks and Romans recognised that costs could be used as a tool to both enhance and protect the justice system. An award of costs not only ensured successful parties were not denied justice but acted as a deterrent against any abuse of process.[8] In particular, there was a strong focus on ensuring those wrongfully accused were protected from the harsh consequences of the criminal justice system.[9]
In contrast, English law developed quite differently from its European neighbours.[10] The first common law courts lacked any power to award costs at all.[11] This was soon recognised as a problem, especially for those seeking to protect their rights. Historically, it was the victim who was expected to cover the cost of either criminal or civil prosecution,[12] but this expense could not be considered when measuring damage.[13] The effect of this was that victims would be left substantially out of pocket, even if they won their case.
In the late 13th century, legislation was passed to address this problem. For the first time, the courts were given the ability to award costs in addition to any damages that may be available.[14] However, these provisions did not extend to the awarding of costs in criminal proceedings.[15] This meant that victims were expected to bear the heavy burden of ensuring criminals were brought to justice.[16] If a victim were unable or unwilling to pay the cost of arresting and trying the defendant, then the crime would simply go unpunished.[17]
By the 18th century, there were increasing calls for the injustice of this to be addressed. The co-founder of London’s first quasi-official police force, Henry Fielding,[18] called it a “miracle of public spirit” that any crimes were being prosecuted at all.[19] This was because it was increasingly apparent that the cost of prosecution had become too great a hurdle for many citizens.[20] A select few had been able to mitigate the problem by paying to join “prosecution associations”, who would prosecute on behalf of its members.[21] However, for most, this was simply not an option.[22]
In 1752, moves were finally made to address the problem. Initially, this involved a form of legal aid for those who could not afford to prosecute themselves.[23] However, this quickly developed into a more general power to award costs in favour of the prosecution.[24] By the 1830s, any residual limitations had been removed, and it had become common for convicted defendants to contribute to the cost of prosecution.[25]
Surprisingly, the English law was much less concerned about the plight of defendants. For instance, while civil plaintiffs gained the ability to obtain costs in the 13th century, it took over 300 years for defendants to be placed in the same position.[26] Criminal defendants fared no better. This is even though they were also expected to pay for a significant proportion of proceedings, even if they were acquitted.[27] For example, a person accused of a crime was often required to pay for the privilege of being transported and held during trial.[28] Usually, if these expenses were not paid, an acquitted defendant would remain in custody until the debt was cleared.[29]
While a limited power to award costs to defendants was introduced in the late 17th century, it was limited to the punishment of wayward prosecutors.[30] It took nearly another 100 years for there to be any general recognition that those acquitted of crimes may deserve compensation.[31] However, unlike successful prosecutors, actual awards of costs by the Court were rare.[32] By 1840, when New Zealand became an English colony,[33] it was still well accepted that defendants should bear the “harsh” cost of maintaining their innocence.[34]
This approach to criminal costs was quickly adopted in New Zealand,[35] with early statutes closely modelling English equivalents of the time.[36] This meant the focus was firmly on costs as a means of compensating prosecutors or sanctioning them for improper behaviour.[37] There was little regard given to the financial impact on those acquitted of crimes, of being forced to pay for their defence. For example, New Zealand’s first criminal code created an express power to award costs to successful prosecutors, but not defendants.[38] In what was later characterised as an “oversight”,[39] this approach remained the norm for over 50 years.[40]
Part of the reason for this may be related to significant changes that occurred to criminal proceedings during the late 18th and early 19th centuries. In 1846, New Zealand established its first official police force.[41] It was not initially intended for the Police to become involved in criminal prosecutions. Instead, they were only expected to keep public order and ensure people appeared in court when required.[42] However, by the mid-1860s, it had become common for the Police to prosecute offenders.[43]
This change from private prosecution to prosecution by the state appears to have caused a further impediment for defendants seeking costs. At common law, there was an established principle that the Crown “neither pays nor receives costs”.[44] In theory, this meant that unless the “true prosecutor” was a private individual, then the courts should refuse costs.[45] While this principle was never strictly applied in New Zealand, it does appear to have at least reinforced the presumption that defendants should not ordinarily receive costs.[46]
The additional problem was that a costs order in favour of a defendant required the informant to pay the costs personally. This meant the courts were reluctant to order costs against Police officers, who were seen as having been merely doing their job.[47] To do so was seen as creating a greater injustice than denying the defendant compensation on acquittal.[48] The overall effect of this was that by the middle of the 20th century, New Zealand had developed a strong presumption against awarding costs to acquitted defendants.
However, after World War II, there was increased support for a greater emphasis to be placed on individual human rights.[49] Arguably, one of New Zealand’s leading advocates for post-war reform in this area was Josiah “Ralph” Hanan.[50] Hanan took office as Minister of Justice in 1960 and became responsible for the passing of the Crimes Act 1961 (Crimes Act).[51] During the Act’s passage, he defined the overriding purpose of the criminal law in New Zealand as being to protect the innocent.[52] Notably, he went on to make clear that this must include protecting those accused but not convicted of crimes.[53]
It was therefore unsurprising that the Crimes Act quietly introduced a significant reform for criminal costs. For the first time, the Court was free to award costs to either party whenever it was “just and reasonable” to do so.[54] It was argued that this change had been intended to ensure a more liberal approach to costs in favour of acquitted defendants.[55] The Supreme Court (now High Court) disagreed.[56] Instead, it reaffirmed the rule that a defendant should only receive costs if the prosecution had been conducted improperly or unreasonably.[57]
Not long after the Supreme Court’s decision, Hanan established a special committee to specifically review the awarding of costs to criminal defendants (the Criminal Costs Committee).[58] In 1966, the Committee issued its report, which was highly critical of the existing presumption against costs for defendants. It noted that this was contrary to the interests of justice, as it was unfairly prejudicing innocent defendants.[59]
In response, Parliament enacted the Costs in Criminal Cases Act 1967 (the CCCA), which passed with support from both sides of the house.[60] This Act was designed to both consolidate and reform the awarding of criminal costs.[61] It enabled any criminal court to award costs to successful prosecutors or defendants,[62] as well as convicted defendants if justice demanded it.[63] It also corrected an anomaly that the courts had previously been prevented from awarding costs on appeals.[64] However, its main focus was on ensuring a more liberal approach was taken when awarding costs in favour of acquitted defendants.[65]
Acquitted Defendant
It is these provisions relating to acquitted defendants that have become the most controversial part of the CCCA.[66] The Criminal Costs Committee had recognised the presumption against costs on acquittal (acquittal costs) was contrary to the purpose of the criminal law.[67] It undermined the right to a fair trial and effectively punished defendants based solely on an accusation.[68] In order to avoid the unjustness of the situation, the Committee agreed the overriding principle must be those innocent defendants should not be out of pocket for maintaining their innocence.[69]
However, the Criminal Costs Committee stopped short of recommending that there should be a presumption in favour of acquittal costs. The starting point for this was the view that being accused of a criminal offence had become an “inevitable hazard” of modern life,[70] and as such, it was unreasonable to expect the state to indemnify citizens from the consequences.[71]
More importantly, the Committee was concerned that a presumption in favour of costs would result in many criminals receiving a “windfall” from the state.[72] This was based on a perception that there were a “substantial class of cases” where the defendant had been “lucky to get off” or had “brought it on himself”.[73] The problem for the Committee was that a “not guilty” verdict did not mean the defendant was innocent, just that the charges had not been proven beyond a reasonable doubt.[74] Therefore, the Committee considered paying compensation based on a not guilty verdict would not necessarily result in protecting the innocent.[75]
It is important to remember that the burden and high standard of proof required to prove a prosecution in criminal trials are intentional. It exists to protect against the injustice that arises in adversarial justice systems,[76] where citizen defendants face significant disadvantages in being prosecuted by the power and resources of the state.[77] By placing the onus on the prosecution to prove their case beyond a reasonable doubt, the imbalance and risk of unjust results are reduced. Importantly it acts as a layer of protection against the wrongful conviction of innocent citizens. Society has long believed that it is better to have a system that risks acquitting the guilty than one that convicts the innocent.[78]
What the Criminal Costs Committee believed was that the price society pays for this protection should not necessarily include acquittal costs.[79] Instead, justice was best served by only awarding costs when a defendant had “cleared themselves” or had been “shown” to be innocent.[80] However, to not undermine a fundamental principle of criminal law, there should be no requirement for the defendant to “prove” their innocence.[81]
What has proven to be a challenge is how best to resolve these contradictory objectives. For the Committee, the answer was as simple as leaving it to the courts to decide. They recommended that Parliament ensure the courts had a broad discretion as to costs and then “encourage” them to use their discretion more liberally.[82]
The Committee decided the best way to give the courts that discretion was for the CCCA to make clear there was “no presumption” for or against an award of costs.[83] Merely being acquitted would not be grounds for an award;[84] although, costs could not be refused just because the prosecution was conducted properly.[85] Instead, the court was directed to consider “all relevant circumstances”.[86] In particular, this included the conduct of the prosecution, reasons for acquittal and conduct of the defence.[87]
Superficial or Substantive Reform
Interestingly, the CCCA’s “no presumption” approach was not considered by the courts to be materially different from what had existed under the Crimes Act.[88] It is simply seen as reaffirming the existence of a “complete and unfettered discretion”, and that costs could be awarded anytime “the court thinks it right to do so”.[89] New factors to consider for acquittal costs, as set out in section 5, were not seen as encouraging a more liberal approach. Instead, they indicated what could be considered when exercising the courts’ unfettered discretion.[90]
However, it has been noted that in practice, there is no such thing as a “complete and unfettered” discretion.[91] Instead, the courts will inevitably draw on principles and guidelines that have developed over time.[92] This was undoubtedly true for acquittal costs under the CCCA, with long-established principles being applied to the new law.[93]
For example, the first cases to consider the CCCA relied heavily on the conduct of the prosecution when deciding costs.[94] In Police v Smith the Magistrates Court awarded a small “allowance”, as the prosecution should never have been brought in the first place.[95] Then, in R v AB, the High Court (then called the Supreme Court) refused costs primarily because it would have been “scandalous” to have not prosecuted the defendant in the circumstances.[96]
This prosecution focussed approach to acquittal costs has continued to be reinforced over time. In 2009, the Court of Appeal suggested only two questions needed to be asked: had it been reasonable to prosecute the defendant and had the defendant brought the charges on their head?[97] If the answer to either question was “yes”, then costs should generally be refused.[98]
A further impediment to more liberal awards come from the language of the CCCA itself. Despite there being “no presumption”, the Act also makes clear that costs cannot be awarded just because a defendant was acquitted.[99] This has been taken to mean that the onus is on the defendant to show “good grounds” before an award can be made.[100] There is a rebuttable presumption that costs will not be awarded on acquittal. Instead, costs will only be awarded if the defendant shows the prosecution was improperly brought or if the defendant acted reasonably and has demonstrated their innocence.[101]
Ironically, this de facto presumption against acquittal costs was what the CCCA had intended to reform.[102] It appears that attempts to guarantee that only the “innocent” would be compensated[103] ended up ensuring there was no reform at all. Despite this, in its 2000 review of criminal costs, the Law Commission considered the CCCA had struck an “appropriate balance” and did not need substantial change.[104]
The basis for this view appears to be that reimbursing acquitted defendants for some of their expenses would result in a “windfall” for the “guilty or the probably guilty”.[105] It shared the Criminal Costs Committee’s view that compensation was only justified if the prosecution had acted improperly or where the defendant was clearly shown to be innocent.[106] In particular, it warned against following England and Australia, who had both advocated for a presumption in favour of costs on acquittal.[107]
To Presume or Not to Presume
The Law Commission’s primary objection against presuming costs on acquittal was that it would damage New Zealand’s criminal justice system.[108] For example, it argued that a presumption in favour of costs would create a “hierarchy of acquittals” and introduce the “not proven” verdict, something otherwise alien to New Zealand law.[109] The rationale for this was that refusing costs would be seen as a statement that the defendant was “not not-guilty enough” to deserve compensation.[110] It has also been argued that this undermines the role of the jury, as the judge would be able to indicate that the verdict was probably incorrect.[111]
What is surprising is that the Commission didn’t explain why the “no presumption” approach produces a different result, where costs are only refused because the defendant’s innocence was not shown.[112] This effectively means that despite the charges not being proven, the defendant is “probably guilty”.[113] Precisely the outcome the Commission was trying to avoid.
Concern over the creation of a hierarchy of acquittals also ignores how the presumption is applied in both England and Australia. In both jurisdictions, a refusal of costs will generally only occur if the defendant disentitles him or herself after the alleged offence took place.[114] This means refusing costs can in no way be seen as undermining the verdict of not guilty. Instead, it only indicates the defendant behaved improperly, either during the trial or investigation.
Another common objection against presuming acquittal costs is that costs can be a deterrent against prosecuting all but the most certain of cases.[115] This is seen as contrary to the public interest, as it means the perpetrators of complex crimes would often go unpunished.[116] It could also potentially prevent the prosecution from occurring if investigators could only gather circumstantial evidence, however strong that evidence may be.[117] There have also been concerns that prosecutors may attempt to avoid costs by resorting to “improper means” to ensure a conviction.[118]
However, the Supreme Court has rejected these concerns, saying they are misplaced and overlook that costs are rarely paid by prosecutors personally.[119] Section 7 of the CCCA provides that whenever prosecution is by or on behalf of the Crown, costs are paid from a central fund.[120] The only exception to this is where the prosecution was brought negligently or in bad faith.[121] If so, the prosecutor can be held personally accountable for costs.[122] This statutory indemnity was intentionally designed to ensure the public interest in bringing legitimate prosecutions was protected.[123]
Be that as it may, it is interesting the Law Commission did not see any justification for extending this indemnity to include non-Crown prosecutors.[124] The reason for this was the view that legitimate prosecutions would not attract substantial costs awards.[125] This meant there was little risk of deterring prosecutions that were in the public interest,[126] and costs could be seen as a tool to ensure the right to prosecute was not abused.[127]
What is unclear is why the Law Commission did not think the same argument applied to Crown prosecutions. For example, it is not explained why the Police should be indemnified, but not the Commerce Commission or Society for the Prevention of Cruelty to Animals?[128] In addition, the Law Commission’s reasoning appears to overlook the underlying basis for awarding costs. In theory, costs should not simply be seen as a means of punishing prosecutors. Their primary purpose is to ensure acquitted defendants are not left out of pocket for merely maintaining their innocence.[129] This means there is no reason why “large” cost awards cannot be made, even if the prosecution was properly brought.
If the purpose of a statutory indemnity is to ensure difficult cases are brought to trial, then arguably, it should apply to all that are in the public interest. On the other hand, it could be argued that Crown prosecutions generally involve only the most serious of offences. Ones that directly affect the safety and stability of society.[130] Therefore, a limited indemnity can be justified on the basis that there is a powerful public interest in ensuring these offences are prosecuted. However, to what extent non-Crown prosecutions are always “less important” is a matter that is open for debate.[131] As a consequence, there may be grounds to extend the currently limited indemnity to cover a broader range of prosecutions.
Notwithstanding the above, the Law Commission’s primary concern appeared to be that presuming acquittal costs could undermine public confidence in the justice system.[132] This seems to be based on the belief that the public assumes those accused of crimes are guilty.[133] If acquitted, the defendant was probably “lucky to get off” and therefore undeserving of any compensation.[134] To presume otherwise could be seen as acting contrary to the public’s view of justice, as it would involve paying money to perceived criminals.[135] This problem could be avoided by simply limiting costs to situations where it was clear the defendant was innocent.
What the Law Commission did not explain was why the adoption of a presumption in favour of costs has failed to cause a crisis of public confidence in either England or Australia.[136] In fact, in England, it is now argued that compensation for all costs incurred on acquittal has become a constitutional right.[137] This is perhaps surprising, given that for most of the 19th and 20th centuries, New Zealand and England maintained broadly equivalent approaches to criminal costs.[138] It was even argued that the CCCA was intended to bring New Zealand up to date with changes that were developing in England at the time.[139]
However, any suggestion of this being the case ended in 1973, when England firmly rejected the concept of “no presumption”.[140] Instead, it was directed that that acquittal costs should begin to be awarded in all cases unless there were “positive reasons” not to.[141] These reasons were narrowly defined, such as where a defendant had misled the prosecution, the acquittal was solely due to procedural irregularities, or where the defendant was convicted on other charges.[142]
This change was based on an increased recognition that refusing acquittal costs undermined a “fundamental principle of the common law”,[143] that being the presumption of innocence.[144] This principle means that if the prosecution fails to prove guilt beyond a reasonable doubt, then the defendant is deemed innocent.[145] Because acquittal simply affirms the defendant’s innocence, there is no question about whether they are entitled to be reimbursed for their expenses. The European Court of Human rights has even suggested that refusing to reimburse an acquitted defendant’s costs could breach a person’s right to receive a fair trial.[146]
The High Court of Australia has also followed this approach. It found that acquittal costs were closely linked to the right to receive a fair trial, and a presumption against costs was “invidious and inconsistent with the presumption of innocence”.[147] The overriding principle should be that acquitted defendants are not forced to bear the cost of “exculpating” themselves unless there are good reasons to do so.[148]
Likewise, the Law Commission of Canada considered that refusing to presume acquittal costs imperilled “both the presumption of innocence and the very high value that our system places on the general verdict of not guilty”.[149] The Canadian Commission went on to criticise the New Zealand approach. It considered concern over creating windfalls for criminals was overstated.[150] The Canadian view was that the number of cases where the defendant was “lucky to get off” was “less substantial than those who advance it as a limitation on costs awards would have us believe”.[151]
Given these views, it is surprising New Zealand’s Law Commission did not see the presumption of innocence as a relevant consideration when awarding costs.[152] This is especially so given the right to be presumed innocent has now been given statutory recognition in the New Zealand Bill of Rights Act 1990 (New Zealand Bill of Rights).[153]
Potentially this failure may have been due to the Commissions view that acquittal costs could be seen as a civil remedy for wrongful prosecution.[154] If approached this way, principles of criminal law become less relevant. If costs were a civil remedy, then it would be uncontroversial to require claimants (the defendant) to prove their case on the balance of probabilities.[155]
However, to suggest criminal costs are analogous with civil compensation is misleading.[156] To begin with, criminal defendants are not in the same position as civil litigants.[157] Those accused of crimes rarely have the luxury of being able to negotiate an “efficient” settlement, effectively “cutting their losses” and accepting the charges.[158] To do so could not only compromise their reputation but also their liberty and lead to lifelong consequences.[159] This means most criminal defendants are forced to defend themselves, which can be financially crippling, even if they are found not guilty.[160]
The implication that criminal costs are no more than compensation for wrongful prosecution is also contrary to the express wording of the CCCA. The Act makes clear that costs cannot be refused just because it was justifiable to prosecute.[161] Such an approach also places undue emphasis on the need to ensure high prosecutorial standards.[162] While this is important, modern acquittal costs are first and foremost intended to make sure citizens are not being punished for exercising their constitutional right to defend themselves.[163]
Finally, it must be recognised that criminal costs are significantly more limited than the broader concept of civil compensation. Under the CCCA, the best a defendant can hope for is to be partially reimbursed for expenses they have personally paid for during proceedings.[164] Therefore, there is no question of defendants receiving anything that could be classed as a “windfall” or otherwise gaining a benefit from proceedings.
Construing Innocence
This raises the question of why the New Zealand approach disregards the presumption of innocence when considering costs. To understand why it is first necessary to recognise that there is no clear definition of what the “presumption of innocence” means. For example, it is argued there are at least two distinct approaches to defining the concept.[165]
The most familiar for many people is what has been called the “due process” model.[166] This focuses on the defendant’s right to receive a fair trial, which is seen as a fundamental component of modern democracies.[167] The due process model recognises that adversarial justice, such as existing in New Zealand, does not inherently ensure a fair process.[168] In particular, it is recognised that the state has a substantial advantage when prosecuting individuals due to the disparity in power and resources.[169] This can be a significant problem for society, due in no small part to the severe consequences a defendant can face if convicted.
The due process model seeks to address this imbalance by demanding that criminal defendants be presumed factually innocent.[170] This means that a person is deemed to have not committed the crime unless the contrary is proven beyond a reasonable doubt.[171] Anything less than this is seen as casting a shadow over the defendant’s innocence, giving the state an even more significant advantage than they had before.[172] This would make it impossible for a person accused of a crime to receive a fair trial and lead to an increase in the number of people being wrongfully convicted.[173]
However, others argue that the due process model simply panders to criminals and undermines the ability of the criminal law to protect society.[174] Instead, the focus must be on the criminal justice system operating as a means of repressing criminal activity.[175] This view has led to an alternative approach to the presumption of innocence, which has been characterised as the “crime control” model.[176]
Under a crime control approach, factual and legal innocence are treated as two distinct concepts.[177] Legal innocence refers to a defendant’s right not to be punished for a crime until their guilt is established beyond a reasonable doubt.[178] In contrast, a defendant is factually innocent only if it is found that they did not commit the offence.[179]
By separating factual and legal innocence, the criminal justice system can operate more efficiently, offering maximum protection for society at minimal expense.[180] Part of achieving this efficiency involves relying on the process to deliver the correct result the first time.[181] For example, if a thorough investigation produces sufficient evidence so that a competent prosecutor believes the criminal standard of proof has been met, then it can be assumed the defendant is probably guilty.[182] Reliance on the investigative process is typically reinforced by “practical experience”, which shows the majority of those brought before the courts are found guilty of an offence.[183]
Given this, crime control advocates see it as pragmatic to not burden the justice system with questions of factual innocence. Instead, all that is necessary is to determine if the presumption of legal innocence has been displaced. The trial process simply acts as a check to ensure that “up-stream” processes are of the highest possible standard;[184] if they are not, then the defendant receives the benefit of a not-guilty verdict.[185] The high standard of proof is also deemed acceptable on the basis that it functions as a final safeguard against the possibility of wrongful conviction.[186]
Therefore, under the crime control model, it would be wrong to presume costs on acquittal. This is because most acquittals are seen as being due to a failure by the prosecution, not because the defendant was factually innocent.[187] Looked at another way, crime control recognises there is a substantial class of cases where the defendant was lucky to get off, meaning costs should only be awarded if the defendant’s innocence can be shown.[188]
Crime Control or Due Process
Several factors may explain why New Zealand has preferred the crime control model when other jurisdictions have not. Firstly, it is consistent with the historical approach to acquittal costs, which were initially developed to ensure high prosecutorial standards.[189] They were not intended to act as a form of compensation for acquitted defendants.
Secondly, any attempt to compensate those accused of crimes will always be socially and politically controversial.[190] This is due to the common public perception that those charged with crimes are probably guilty of something.[191] In addition, most people never expect to be accused of a criminal offence. This means their main concern is with deterring crime, not with upholding the rights of the accused.[192]
Politicians leverage this by being “tough on crime” and avoiding policies that may be seen as giving criminals greater rights.[193] Consequently, the crime control model is seen as the most politically palatable approach. This is because it emphasises deterring crime and protecting society, albeit at the expense of the accused.[194]
Finally, New Zealand’s current approach to criminal costs was developed before widespread acceptance of the importance of individual human rights.[195] In 1967, there were over 350 years of jurisprudence weighing against a more liberal approach.[196] In addition, at the time, neither England, Canada, nor Australia had yet advocated for adopting a due process model when considering costs.[197]
Considering this, it is unsurprising that when the CCCA was enacted, that the courts adopted a conservative interpretation. However, whether this approach can still be justified in the 21st century is another question entirely. There is now a much greater acceptance of the need to protect individual human rights.[198] It is also recognised that modern democracies cannot simply pander to popular opinion.[199] Instead, the state has to act in the interests of society as a whole, which includes protecting the rights of minorities and those marginalised by the majority,[200] who are often the most likely to be accused of criminal offences.[201]
It must also be questioned whether it is now past time to move beyond the historical justifications for limiting acquittal costs. New Zealand no longer has a privately funded justice system, which expects each party to pay their way. We now accept that it would be unjust to force victims to bear the cost of prosecution, yet we still consider it “reasonable” for defendants to pay their way, even if they are doing no more than maintaining their innocence.[202]
State-funded legal aid does indeed provide some relief from this problem.[203] Unfortunately, the availability and scope of legal aid are constantly under pressure as governments attempt to cut costs and increase efficiency.[204] It also does little to help the increasing number of people who do not qualify or who may be required to “top-up” to ensure adequate representation.[205] Furthermore, while legal aid is an essential part of criminal justice, it is a separate issue to the broader question of criminal costs.
Part of the problem may be that, unlike other jurisdictions, the relationship between the presumption of innocence and costs has not been considered by New Zealand’s courts.[206] In both England and Australia, it is the courts that have advocated for due process to be the foundation of criminal costs.[207] Unfortunately, New Zealand’s Court of Appeal has held that the clear wording of the CCCA means it is a matter only Parliament can address.[208]
However, more recently, it has been suggested that there may now be jurisdiction for a court to declare existing legislation inconsistent with the New Zealand Bill of Rights.[209] If this is so, then it is arguable the CCCA’s de facto presumption against costs could be found inconsistent with the right to be presumed innocent.[210] It is also arguable such an approach is no longer “demonstrably justified in a free and democratic society”.[211] While any such declaration would not change the law,[212] it would create an opportunity for the matter to be more openly debated.[213]
It is uncontroversial that the overriding concern in any justice process must be to ensure the innocent are protected,[214] including those accused of crimes they did not commit.[215] It has also long been recognised that this protection comes at a price, that being, the risk of acquitting the guilty to ensure the innocent are protected from conviction.[216] The concern is that an undue focus on “efficiency” could result in essential protections being undermined.[217] For example, it would be more efficient to simply declare someone guilty as soon as they are charged by the Police.[218] However, to do so would remove any ability for innocent citizens to receive a fair trial.
The question that must be answered is whether the price of protecting the innocent should include contributing to the cost of a successful defence?[219] To date, there has been no informed debate on this topic due to the failure to recognise the relationship between costs and the right to a fair trial.[220] However, what is clear, is that the CCCA was never intended to create the current de facto presumption against costs.[221] In the words of Ralph Hanan, the CCCA’s chief architect:[222]
The twin objects of any criminal code in a civilised country are to protect the person and property of every citizen while sheltering the innocent from being punished unjustly. We in New Zealand have always thought it more important to safeguard the innocent than convict the guilty … There are some who think that this preoccupation with the rights of an accused person is a strange and perhaps foolish practice … [but the] protection of the rights of every person accused of an offence is the only effective way to protect the rights of the ordinary man or woman against injustice or tyranny.
Convicted Defendants
The overall intention to treat defendants more justly can also be seen in the provision for the payment of costs to a convicted defendant.[223] This was introduced in recognition of the fact that the cost of arguing difficult or complex points of law can impede them from being raised at trial.[224] However, there is a strong public interest in having these questions resolved by the courts, as it forms an essential part of the lawmaking process.[225] To require criminal defendants to subsidise this when other aspects of lawmaking are publicly funded was considered unjust.[226]
Unfortunately, it is questionable whether these provisions have worked, with no reported cases showing a successful application. Part of the reason for this may lie in the fact that costs will not be awarded to the extent a defendant was legally aided.[227] This means that in many cases, the question of costs may not even arise.
Despite this, a more significant problem for convicted defendants is the uncertainty of whether reimbursement will be available. The CCCA requires that there be a “difficult or important point of law” and that “special circumstances” exist so that it is “proper” to award costs.[228] Unfortunately, there will generally be no way for a defendant to know whether they qualify for compensation until after the trial concludes.[229]
In addition, even if a convicted defendant qualifies, it is unlikely they would be fully reimbursed.[230] While the need for “special circumstances” should mean an award is not limited by regulations,[231] the defendant is still expected to bear a significant proportion of the cost. Overall, this means there is little incentive for defendants to argue “difficult” points of law unless it is already in their best interests to do so.[232]
Successful Prosecution
In comparison, there is much less controversy around the awarding of costs against convicted defendants (prosecution costs). The Criminal Costs Committee did not review this area of law, meaning the CCCA was little more than a re-enactment of the prior law.[233] This means the court retains the discretion to order any defendant who is convicted of an offence to contribute to the costs of their prosecution.[234]
Whether this discretion should be exercised involves asking two questions. Firstly, is there jurisdiction to order costs?[235] This will exist if the costs were “properly incurred”, and it would be “just and reasonable” to require the defendant to contribute to the prosecution.[236] Secondly, is it appropriate to order costs given the particular circumstances of the case?[237] This involves looking at the nature of the charges, the complexity of the trial, how successful the prosecution was,[238] the effect of the sentence imposed, the defendant’s conduct and financial position.[239]
In its review of criminal costs, the Law Commission noted the current approach was quite “reasonable”, and there was little need for change.[240] To what extent this is accurate is a matter open to debate. Prosecution costs were developed solely as a means of ensuring victims were not penalised for enforcing their legal rights.[241] However, it is claimed that the prosecution of crimes is now a “fundamental state function”,[242] with society no longer expecting victims to bear the cost.[243] Given this, is it still “reasonable” to expect those convicted of crimes to contribute, especially as the prosecution remains largely exempt?[244]
It could be argued that a defendant should not be immune from paying costs just because they were criminally charged.[245] Had the proceedings been a civil matter, there would be no question of them having to contribute to the other side, as it seems reasonable for those who break the law to contribute to the cost of enforcing it.[246] However, this conflating of civil and criminal concepts has been strongly criticised.[247] Specifically, it overlooks many of the inherent differences between the two areas of law.[248] For example, the disparity in power between citizen defendants and state prosecutors, the severe consequences that follow conviction, and the impracticability of negotiating “efficient settlements”.[249]
A better argument is that costs have become a legitimate part of the overall penalty imposed for an offence.[250] This view is reflected in the approach the courts have taken when deciding whether to award prosecution costs. Firstly, it is recognised that it would be unjust to punish defendants for simply exercising their constitutional right to defend themselves.[251] Therefore, costs should only be awarded if this right has been abused,[252] such as where the defendant deliberately and unnecessarily added to the cost of proceedings or otherwise acted unreasonably.[253] In this way, prosecution costs can be seen as a form of sanction, which can be applied as a result of improper post-offence behaviour.[254]
Secondly, while prosecution costs are distinct from other orders, such as victim reparations and recovery of proceeds of crime,[255] they must still be considered as part of the “totality principle” when sentencing.[256] This principle ensures defendants are protected from unduly harsh or unjust sentences by requiring the court to consider the “total” effect of all orders made.[257] If an order for costs would result in the aggregate penalty being “excessive”, then that order can be amended or refused.[258] In part, this is why costs are rarely awarded in addition to a term of imprisonment, as imprisonment is generally considered a sufficiently harsh penalty in itself.[259]
However, there is the potential for recent changes to the Sentencing Act 2002 (Sentencing Act) to force a change in how prosecution costs are approached. This is because the Sentencing Act now makes compliance with specific procedural requirements, either an aggravating or mitigating factor during sentencing.[260] The concern is that these changes may be seen as a direction for any unreasonable post-offence behaviour to be treated more harshly than before. For example, in addition to awarding costs, the court may increase the sentence that would otherwise have been ordered. In theory, this could lead to unjustly harsh penalties being imposed for relatively minor offences.
Despite this, there is no indication that changes to the Sentencing Act are intended to undermine the totality principle. Therefore, while the matter is yet to be considered by the courts, it is arguable defendants should not be exposed to overly harsh consequences for their actions. Instead, the Sentencing Act may be limited to where the defendant’s behaviour has not increased the burden on the prosecution but only affected the court. In this situation, the sentence imposed may be increased, but costs would not necessarily be available.[261] If the conduct has affected all parties concerned, then the totality principle should apply, ensuring the total sanction imposed is not excessive.[262]
The courts’ use of prosecution costs as a tool to sanction unreasonable conduct during a trial makes them similar to the courts inherent jurisdiction to make “wasted costs orders”. These orders have historically enabled the courts to order compensation for any costs incurred due to a “serious dereliction of duty to the court” by counsel.[263] They have been available in both civil and criminal jurisdictions and are intended to protect the court process against abuses by negligent or overzealous counsel.[264] However, wasted costs orders can be distinguished from criminal costs. This is because a wasted costs order can only be made against counsel personally and is only available in the High Court.[265] There is no inherent jurisdiction for the courts to require parties to a criminal case to pay costs.[266]
Arguably, this distinction has now been removed by section 364 of the Criminal Procedure Act 2011 (CPA).[267] This provision has now enabled any criminal court to order the defendant, defendant’s counsel or the prosecution to pay compensation for costs incurred due to a “significant” procedural failure.[268] The CPA states that it is not intended to limit or affect costs under the CCCA.[269] However, at least in respect of prosecution costs, both Acts appear to deal with a similar subject matter. That being, compensation for costs incurred due to unjustified behaviour by the opposing party.[270]
Despite this, it is arguable the two Acts will be applied to different scenarios.[271] Firstly, the CPA is of much more limited scope than the CCCA. This is because section 364 only applies to a “procedural failure” that is “significant”.[272] In addition, a “procedural failure” is defined as only including failures to comply with specified rules.[273] Therefore, if the improper conduct does not involve a failure to comply with the prescribed processes, the only option for the court will be the CCCA.
Secondly, there is also no indication that “significant” is intended to be a lower standard than the high threshold required for wasted costs orders.[274] In contrast, the court has broad discretion under the CCCA to make orders whenever it is just and reasonable to do so.[275] This means that the CPA is likely only to apply to conduct that is particularly egregious, whereas the CCCA is more flexible.
This view is reinforced by the fact that, unlike the CCCA, cost orders under the CPA are not limited by regulation. This means if the threshold for making an order is met, the court has a broader discretion than is available under the CCCA to ensure appropriate compensation is paid.[276] Although, there is nothing to indicate that the totality principle will not operate as a safeguard against excessive orders being made under the CPA.[277]
Finally, the CPA does not require any particular outcome from a trial before jurisdiction to award costs exists.[278] This means costs can be awarded against successful parties who have failed to comply with procedural requirements. Therefore, it is arguable that the CPA is simply intended to complement the CCCA and ensure there is adequate jurisdiction to protect court processes from abuse.
However, what may be of concern is the overall increased focus on sanctioning defendants as a means of promoting efficiency in the justice system. Both the CPA and Sentencing Act emphasise the need for defendants to comply with procedures or face additional penalties. To what extent it is legitimate to consider post-offence behaviour when sentencing offenders is a matter that is open for debate.[279]
What should be uncontroversial is that efficiency should not be used as an excuse to undermine fundamental democratic rights. This includes the right to a fair trial, and that punishment is not disproportionate to the offence committed.[280] In this respect, it is arguable that the CCCA’s treatment of prosecution costs may have been “reasonable”.[281] The various protections that have developed over time appear to limit the risk of perverse results or injustice. However, new legislation has introduced a chance that these protections could be eroded over time. If this were to occur, then there is not only a danger of undermining the CCCA but also justice itself.[282]
Limits on Recovery
In its report, the Criminal Costs Committee expressed concern that an unfettered discretion as to costs could lead to excessive awards being made. Therefore, they recommended that the quantum of costs available should be controlled by regulation.[283] In their opinion, the rates payable under the CCCA should be equivalent to what was paid to Crown Solicitors or defence counsel through legal aid.[284] This would strike a balance between ensuring awards were not excessive but were also “realistic”. The need to ensure awards were realistic was seen as of particular importance. It was noted that if regulations were too restrictive so that awards were no longer a reasonable estimate of actual expenses, then the object of awarding costs was defeated.[285]
However, it is arguable that the Minster responsible for the CCCA, Ralph Hanan, was less concerned that the courts would be unable to decide what was reasonable. During the Act’s passing, he made clear that there should be an “unfettered” discretion to award any amount the court deemed “just and reasonable”.[286] In addition, it is perhaps telling that no regulations were passed while Hanan remained Minister of Justice.[287]
This meant the first regulations did not come into force until 1970.[288] They sought to give effect to the Criminal Costs Committee’s recommendations by setting the amount recoverable at $50 per half-day, a rate equivalent to what Crown Solicitors were paid at the time.[289] While this was a promising start, there has since been a total failure to keep the prescribed scale of costs (scale costs) up to date. The first and only updates that have been made to the CCCA regulations occurred in 1987 and 1988.[290] This involved the scale costs being increased to a maximum of $226 per half-day,[291] a little more than half the rate Crown Solicitors had become entitled to by this time.[292]
The Minister of Justice at the time, Sir Geoffrey Palmer, stated that these updates were intended to be part of a renewed focus on criminal costs.[293] Unfortunately, this promised focus never eventuated. Despite Crown Solicitor rates steadily increasing to $792 per half-day by 2010,[294] scale costs for the CCCA have remained fixed at $226. As far back as 1994, Tipping J described these rates as “miserable” and “insulting”.[295] However, despite the judiciary regularly noting that the rates available are now totally unrealistic,[296] Parliament has failed to respond.
This failure to update the regulations affects both prosecution and defence equally.[297] However, as the cost to the state of prosecuting is tiny compared to its resources, the impact on defendants is much more significant and can be crippling.
As a result, the only way a party to criminal proceedings can receive a realistic award is if there is justification to exceed the prescribed scale. Under section 13(3) of the CCCA, this can be done if, “having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable”.[298]
During the passing of the CCCA, it was suggested that this exception should extend to situations where the scale costs would cause undue financial hardship for defendants.[299] However, the High Court disagreed, stating the language of the CCCA would only permit consideration of the case itself, not “the applicant or the effect of litigation on him”.[300] As a result, scale costs cannot be exceeded just because an award is unrealistic,[301] even though this may mean the objectives of the Act are undermined.[302]
Instead, the applicant must show there was something “out of the ordinary” about the case.[303] This can include where an important and complex question of law was at issue,[304] where one party had intentionally caused unnecessary expenses to be incurred by the other side,[305] or where the case involved an “unusually large” number of charges that were complex to prove.[306]
However, even if the case is extraordinary, the courts are very reluctant to award anything close to full compensation.[307] In part, this is due to a general policy that both civil and criminal costs should only involve partial reimbursement.[308] The justification for this is that indemnity costs can encourage litigants to incur unnecessary expenses in the expectation they will be reimbursed by the other party.[309] By restricting awards to only a portion of what was incurred, parties are encouraged to avoid unnecessary costs and therefore operate more efficiently.[310]
In addition, the High Court has also indicated that awards in criminal cases should only exceed Crown Solicitor or legal aid rates in genuinely exceptional circumstances.[311] This is based on the view that Parliament could not have intended Crown prosecutors to recover more than they were being paid to try the case (Crown Solicitor rates).[312] Likewise, awards to the defence should also be limited to these rates, as the High Court thought it illogical that the defence could recover more than the prosecution.[313]
However, with respect, this reasoning appears flawed. Firstly, there is no indication Parliament intended awards for extraordinary cases to be limited to either Crown Solicitor or legal aid rates. It was clear that these rates were meant to be used to ensure the ordinary amount recoverable was reasonable.[314] Therefore, provisions relating to extraordinary cases were intended to involve awards more than what was paid to Crown Solicitors. It is also clear that Parliament had intended for criminal costs awards to bear some relationship to a reasonable estimate of actual costs.[315] Section 13(3) was inserted to ensure this overriding objective of providing a just and fair award was not thwarted by regulation.[316]
In contrast to New Zealand, the English consider there to be a right to receive full compensation for all reasonable costs incurred.[317] Smaller awards can imply the defendant was probably guilty of something or can be used as a way to impose otherwise unjust punishments on the acquitted.[318] In either case, leaving those found not guilty out of pocket for defending themselves acquitted undermines the right to be presumed innocent.[319]
When viewed through that lens, New Zealand’s failure to award anything close to reasonable costs, even in exceptional circumstances, appears iniquitous.[320] This is made worse as the level of compensation available to most is so low that it usually not be worth even applying, even if recovering all costs was entirely justifiable.
Despite this, it would be unrealistic to expect a more generous regime for criminal cases than exists in civil matters.[321] The Law Commission agreed and recommended that the prescribed scale for criminal costs be tied to the rates payable in civil proceedings.[322] This would have the effect of ensuring awards are more realistic and give the courts greater freedom to award near-indemnity costs if the circumstances warrant it.[323] Unfortunately, these recommendations have not been adopted.
As a result, it may be open to argue that the rule preventing increased awards due to the inadequacy of the prescribed scale could be relaxed. The CCCA only states that the court must have regard to the difficulty, complexity or importance of the case.[324] In interpreting other legislation, the words “having regard” have been found not to be intended to limit the courts’ discretion.[325] In particular, to have regard means the matters listed need to be considered but do not form an exclusive list of considerations.[326]
Therefore, it is arguable that it is possible to revisit the High Court’s interpretation of section 13(3). If the words “having regard” do not limit the courts’ discretion, then the overriding requirement is that the court is “satisfied that … the payment of greater costs is desirable”.[327] There is little argument that the inadequacy of the regulations makes an increased award “desirable” in many cases.[328]
Such an interpretation would have several advantages. First, it gives effect to the intention of Parliament expressed during the Act’s passage.[329] Second, it would allow the courts to uphold the CCCA’s objective of awarding costs, which have been defeated by the failure to update regulations.[330] Finally, this interpretation would arguably be more consistent with the fair trial rights contained in the New Zealand Bill of Rights.[331]
However, there is no doubt that such an interpretation would be controversial. Although, given the failure to address deficiencies in the regulations for over 25 years, it may be the only way to effect change. The inability of the courts to make realistic awards, in all but the most exceptional of cases, means the CCCA has become irrelevant in most cases. Unless this changes, there is a risk New Zealand’s justice system will be seen as becoming increasingly out of touch with the need to uphold fundamental democratic rights.[332] In particular, the right to be presumed innocent and receive a fair trial.[333]
Temporal Limits
It is worth noting that in other respects, the appellate courts have been open to giving effect to Parliament’s intention when enacting the CCCA. For example, “costs” are defined as any “expenses properly incurred by a party in carrying out a prosecution, carrying on a defence, or in making or defending an appeal”.[334] During the Act’s passing, it was noted this was intended to ensure the courts had the “widest possible discretion” when determining what was “just and reasonable”.[335]
However, in 1995 the High Court sought to restrict this definition. It held that Parliament could not have intended such a “large and wide-ranging” interpretation. The Court was particularly concerned that if costs were too widely defined, that convicted defendants could be charged for the entire cost of an investigation, as well as the trial itself.[336] To avoid this, the High Court considered the costs of carrying out a prosecution or defence should be limited to the costs incurred for the actual trial.[337] This meant that both the prosecution and defence could only claim for costs incurred after the decision to prosecute was made.[338]
The Supreme Court rejected this approach.[339] It noted that the High Court’s definition was contrary to what Parliament had initially intended.[340] In addition, the High Court had overlooked the fact that costs remained discretionary and were limited to what was “just and reasonable” to award.[341] The Supreme Court stated these requirements offered plenty of protection for defendants, and there was no justification for placing an arbitrary “temporal limit” on what could be recovered.[342] Instead, “carrying out the prosecution” simply required that there be a “sufficient nexus” between the expense and the prosecution.[343]
Conclusion
The Law Commission believed that the Costs in Criminal Cases Act 1967 was “essentially well founded and well balanced”.[344] However, it is questionable whether this view was based on a thorough analysis of the rationale and justifications for awarding costs in criminal cases. In particular, the Commission simply accepted the 1966 Criminal Costs Committee’s view that it would be unjust for many acquitted defendants to be reimbursed because most were “probably guilty”.[345]
The Commission may have been on better ground when addressing the issue of costs against convicted defendants. Even though the rationale for such awards has changed, the approach now taken could be called reasonable[346] on the basis prosecution costs have become part of the penalty imposed. They provide a tool for sanctioning convicted defendants for unreasonable conduct that occurs after the commission of the offence and to protect court processes from abuse.
However, to what extent prosecution costs will remain reasonable is in doubt. The risk is that new legislative provisions, which provide additional sanctions for procedural failures, could undermine existing protections against overly harsh and unjust sentences. It is essential to recognise that there is no public interest in imposing sentences that are disproportionate to the crime committed.[347] To do so would undermine fundamental democratic rights and do little to protect innocent citizens from the effects of criminal offending.[348]
Despite this, it is the Law Commission’s failure to recognise the relationship between criminal costs and the right to a fair trial that is most concerning. Perhaps due to our hard-working colonial roots and relatively stable history, it is natural for efficiency and ‘pragmatism’ to take precedence over principle.[349] However, there must be informed debate on what the presumption of innocence should mean in modern New Zealand. To simply dismiss alternative approaches, based on assumptions made nearly 50 years ago, is disappointing at best.
In some respects, the problem may stem from how the question of costs has been framed. To talk of “compensation” causes analogies to be drawn with the debate over compensation for wrongful acquittals.[350] However, such a comparison is unjustified. What must be asked is whether it is just to partially reimburse those found not guilty of crimes for some of the expenses they incurred in defending themselves. If looked at this way, costs can never result in what could be called a “windfall” for criminals. In addition, it ensures those who are supposedly presumed ‘innocent’ are not being punished for simply being accused of a crime.
There is no doubt that there is a price that society must pay for upholding democratic rights and protections. Between 2010 and 2013, the average price each year of paying costs to acquitted defendants was just $373,250.[351] This accounted for just 0.06% of overall court expenditure and less than 0.01% of the total allocation made for the administration of justice generally.[352] What this shows is that even if New Zealand were to adopt a significantly more liberal approach to criminal costs, it would not necessarily have a significant impact on society.
Therefore, the question that needs to be asked is whether we as a nation still believe it is more important to “safeguard the innocent than convict the guilty”?[353] If so, are we willing to pay the price necessary to protect ordinary men and women who are acquitted of crimes from the cost of costs?
[1] While other enactments also touch on criminal costs, the CCCA remains the primary mechanism in most instances; for example, see, Sentencing Act 2002, s 9(1)(k) and 9(2)(fa)–(fb); Criminal Procedure Act 2011, s 364.
[2] See, Law Commission Costs in Criminal Cases (NZLC R60, 2000) at [35].
[3] See generally, David McCluskey “Acquitted Defendants Costs: A Constitutional Principle?” (2011) 7 Crim LR 537; Luke Brasch “Costs in Criminal Cases” (paper presented to Legal Aid Commission Conference, 2012).
[4] See, Robins v United Kingdom [1997] ECHR 72, (1998) 26 EHRR 527 at [29].
[5] Report of Committee on Costs in Criminal Cases (12 September 1966) at 31; Law Commission, above n 2, at [24].
[6] Law Commission, above n 2, at [8].
[7] For an overview of issues, see Law Commission, above n 2; Report of Committee on Costs in Criminal Cases, above n 5.
[8] See, “Distribution of Legal Expenses among Litigants” (1940) 49 Yale LJ 699 at 704; Winky So “A Brief History of the Law of Costs: Lessons for the Jackson Reforms and Beyond” (2013) 32 CJQ 333.
[9] “Distribution of Legal Expenses among Litigants”, above n 8, at 704; So, above n 8.
This focus was also evident in the ecclesiastic courts, which required unsuccessful accusers to undergo the same penalty a defendant would have faced; see, Henry Kelly “Inquisition, Public Fame and Confession” in Mary Flannery and Katie Walter (eds) The Culture of Inquisition in Medieval England (DS Brewer, Cambridge, UK, 2013) at 10.
[10] Arthur Goodhart “Costs” (1929) 38 Yale LJ 849 at 851 – 852.
[11] At 851–852.
[12] An exception was the limited number of crimes that could be committed against the Crown, such as treason; see, William Blackstone Commentaries on the Laws of England (Book 3) (JP Lippincott, Philadelphia, 1893); Joseph Chitty Practical Treatise on The Criminal Law (Edward Earle, Philadelphia, 1819) vol 1.
[13] See, Goodhart, above n 10, at 851 – 852; William Holdsworth A History of English Law (3rd ed, Methuen, London, 1945) vol 4 at 537; Blackstone, above n 12, at 308 – 309.
[14] Statute of Gloucester 1278 (Eng) 6 Edw I c 1; see, Robert Pilford’s Case (1613) 10 Co Rep 115 (KB) at 166a, 77 ER 1102 at 1103; Edward Coke Second Part of the Institutes of the Laws of England (Brooke, London, 1797) at 288.
The requirement for damages to also be available was later doubted, although by this time a separate approach to criminal costs had already developed; see, Wyndowe v The Bishop of Carlisle and Fletcher (1826) 3 Bing 404 (Comm Pleas) at 404 – 405, 130 ER 568 at 568 – 569.
[15] See, McCluskey, above n 3, at 537.
[16] Chitty, above n 12, at 1; David Friedman “Making Sense of English Law Enforcement in the Eighteenth Century” (1995) 2 University of Chicago Law School Roundtable 475 at 475 – 477; Gregory Durston Whores and Highwaymen: Crime and Justice in the Eighteenth-Century Metropolis (Waterside Press, London, 2012) at 407; Douglas Hay “Controlling the English Prosecutor” (1983) 21 Osgoode Hall LJ 165 at 167 – 168; see also, Police v Flewellyn (1910) 5 MCR 72 at 72.
Note, there was in fact strong opposition to Crown interfering in criminal law enforcement due to the potential for abuses of power; see, Hay, above n 16, at 170 – 171.
[17] Durston, above n 16, at 407 and 415; see also, Friedman, above n 16, at 477.
[18] John Beattie “Sir John Fielding and Public Justice: The Bow Street Magistrates’ Court 1754 – 1780” (2007) 25 Law and History Review 61 at 69.
[19] Henry Fielding An Enquiry Into the Causes of the Late Increase of Robbers (2nd ed, London, 1751) at 170.
[20] See, at 170 – 171; Durston, above n 16, at 415.
[21] At 416 – 416 and 427; Hay, above n 16, at 171 – 172.
[22] See, Fielding, above n 19, at 170 – 171; Durston, above n 16, at 415.
[23] 1752 (GB) 25 Geo II c 36; Durston, above n 16, at 417; “Criminal Costs Assessment in Missouri: Without Rhyme or Reason” [1962] Wash U LQ 76 at 77.
[24] 1778 (GB) 18 Geo III c 19; Durston, above n 16, at 417; “Criminal Costs Assessment in Missouri”, above n 23, at 77.
It is suggested one of the reasons for this was concern over the growing power prosecution associations had begun to assert over the criminal justice system; see, Hay, above n 16, at 169 – 172.
[25] Criminal Law Act 1826 (UK) 7 Geo IV c 64, ss 22 – 25 and 32; William Russell A Treatise on Crimes and Misdemeanours (7th ed, Canada Law Book Company, Toronto, 1910) vol 2 at 2039.
[26] 1606 (Eng) 4 Jac I c 3.
Note, there were already some limited exceptions, such as where tenants were maliciously sued by their lord, or where the prosecution was abandoned; see, Statute of Marlborough 1267 (Eng) 52 Hen III c 6, cl 6; 1486 (Eng) 3 Hen VII c 10; 1531 (Eng) 23 Hen VIII c 15; 1565 (Eng) 8 Eliz I c 2; Holdsworth, above n 13, at 537 – 538; “Litigation and the Malicious Groundless Prosecution Debate: A Historical Analysis” (1979) 88 Yale LJ 1218 at 1227.
[27] McCluskey, above n 3, at 538.
[28] 1605 (Eng) 3 Jac I c 10; The King v Pierce (1814) 3 M & S 62 (KB) at 63 – 64, 105 ER 534 at 535; Young v Higgon (1840) 6 M & W 49 (Exch) at 49, 151 ER 317 at 317; McCluskey, above n 3, at 538.
[29] McCluskey, above n 3, at 538.
[30] See, 1692 (Eng) 4 & 5 Will & Mar c 18, s 2; The King v Heydon (1762) 1 Black W 356 (KB) at 356, 96 ER 198 at 198 – 199; The King v Bartrum (1807) 8 East 269 (KB) at 269, 103 ER 344 at 345; Shepherd v Mackoul (1813) 3 Camp 327 (KB) at 327, 170 ER 1399 at 1399; see also, Chitty, above n 12, at 830.
[31] 1778 (GB) 18 Geo III c 19; “Criminal Costs Assessment in Missouri”, above n 23, at 80; McCluskey, above n 3, at 538.
The requirement for defendants to pay their own gaol fees was also removed in the late 18th century; 1774 (GB) 14 Geo III c 20; Chitty, above n 12, at 831.
[32] McCluskey, above n 3, at 538.
[33] See, David Williams “The Foundation of Colonial Rule in New Zealand” (1988) 13 NZULR 54 at 63.
[34] Chitty, above n 12, at 829.
[35] See, William Swainson New Zealand and its Colonization (Smith Elder & Co, London, 1859) at 79–81; Williams, above n 33, at 63; English Laws Act 1858, s 1, stated all English laws in force as at 14 January 1840 would apply, so far as they applied to the circumstances of the colony.
Note, New Zealand did briefly experiment with a Crown prosecution service, before abandoning it in 1845; see, Supreme Court Rules Ordinance 1844 8 Vict 1, cl 20; Andrew Sinclair “Criminal Prosecutions” Southern Cross (Auckland, 8 March 1845) at 3; Law Commission Criminal Prosecution (NZLC PP28, 1997) at [45] – [49] and [52] .
[36] Justices of the Peace Act 1866, s 34; Appeals from Justices Act 1867, ss 20 – 22; Vexatious Indictments Act 1870, s 5; compare, 1778 (GB) 18 Geo III c 19, s 1.
[37] Donougher v Crowhurst Magistrates Court Otago, 1 February 1862 reported in The Otago Witness (Dunedin, 8 Febuary 1862) 3 at 3; Sayer v Pike County Court Wellington, 22 May 1844 reported in The New Zealand Gazette and Wellington Spectator (Wellington, 22 May 1844) 3 at 3.
Note, there was strong judicial resistance to adopting a more liberal approach to costs, see Richards v Sheehan (1887) 5 NZLR 487 (SC) at 488; Ritchie v Proudfoot (1872) Mac 1098 (SC) at 1100.
[38] Criminal Code Act 1893, s 419; see also, Roger Clark “Criminal Code Reform in New Zealand? A Martian’s View of the Erewhon Crimes Act 1961 with Some Footnotes to the 1989 Bill” (1991) 21 VUWLR 1 at 2 – 3.
[39] Report of Committee on Costs in Criminal Cases, above n 5, at [11].
[40] See, Crimes Act 1908, s 449; Re Kirkham [1952] NZLR 75 (SC) at 77; compare, Crimes Act 1961, s 402; see also, Justices of the Peace Amendment Act 1952, s 21; Summary Proceedings Act 1957, s 179 .
[41] See, Constabulary Force Ordinance 1846 10 Vict 2, cl 1.
[42] See, Hay, above n 16, at 173; for example, Bannan v Burgess Supreme Court, 25 September 1851 reported in The Wellington Independent (Wellington, 1 October 1851) at 3; Donougher v Crowhurst, above n 37, at 3.
[43] This included both summary and indictable matters, although in summary matters, it would often be as a mere agent of the victim; Law Commission, above n 35, at [50]; Hay, above n 16, at 180; Andrew Ashworth “Punishment and Compensation: Victims, Offenders and the State” (1986) 6 OJLS 86 at 91 and 107; Goodall v Te Kooti (1890) 9 NZLR 26 (CA) at 37; Jenkins v Sturge District Court Timaru, 10 May 1871 reported in Timaru Herald (Timaru, 13 May 1871) 2 at 2.
Note, the office of Crown Prosecutor was also revived to cover situations where the victim was otherwise unwilling or unable to prosecute themselves; see, Law Commission, above n 35, at [54]; Hay, above n 16, at 173–175 and 180
[44] Domina Regina v Ballivos et Burgenses de Bewdley in Comitatu Wigorniæ (1712) 1 P Wms 207 (Ch) at 225 – 226, 24 ER 357 at 363; Johnson v The King [1904] AC 817 (PC) at 825; CIR v Viskovich (1960) 10 MCD 11 at 14.
For application of principle in criminal matters see, R v Ouellette [1980] 1 SCR 568 at 572; Blackstone, above n 12, at 400; Chitty, above n 12, at 825 and 829.
[45] Dominus Rex v Edwards (1795) 1 Salk 193 (Comm Pleas) at 193, 91 ER 175 at 175; The King v Seawood (1790) 2 Ld Raym 1472 (Comm Pleas) at 1472, 92 ER 458 at 458; The King and Gohaire (1729) 1 Barn KB 275 (KB) at 275, 94 ER 188 at 188; Batley v Cullen (1888) 6 NZLR 755 (SC) at 758 – 759, per Prendergast CJ; Police v Flewellyn, above n 16, at 72; McBride v Gamble (1889) 7 NZLR 396 (SC) at 399; H Jenner Wiley Abridgement of New Zealand Case Law (Butterworths, Wellington, 1964) vol 4 at [1336].
Note, the prosecutor was also required to have acted improperly; see, Donougher v Crowhurst, above n 37, at 3; Sayer v Pike, above n 37, at 3.
[46] See, Report of Committee on Costs in Criminal Cases, above n 5, at [3] and [28]; Robert Reid and Peter Burns “The Power to Award Costs in Criminal Cases or How Juridical Illusions Remain” (1981) 24 Crim LQ 455 at 406–461; R v Ouellette, above n 44, at 574.
[47] Police v Flewellyn, above n 16, at 72; note, an information is now called a “charging document”; see, Criminal Procedure Act 2011, s 14(1).
[48] Police v Flewellyn, above n 16, at 72; see, (8 November 1967) 354 NZPD 4140.
[49] See generally, Kenneth Keith “The New Zealand Bill of Rights Act 1990: An Account of Its Preparation” (2013) 11 NZJPIL 1.
[50] Among other reforms, Hanan was Minister responsible for the introduction of the Ombudsman and credited for preventing the reintroduction of the death penalty; see, Greg Newbold “Capital Punishment in New Zealand: An Experiment That Failed” (1990) 11 Deviant Behavior 155 at 169; also, (19 July 1960) 328 NZPD 659 – 672.
[51] Note, the process that led to the Crimes Act being enacted had begun some years before Hanan; see, John Robson “Penal Policy in New Zealand” (1971) 4 Australian and New Zealand Journal of Criminology 195 at 199; George Finlay Report on the Crimes Bill 1957 (30 September 1959).
[52] (3 October 1961) 328 NZPD 2684.
[53] (3 October 1961) 328 NZPD 2684.
[54] Crimes Act 1961, s 402(3); note that unlike other reforms, this was introduced without any debate or discussion; see, Finlay, above n 51; (19 July 1960) 328 NZPD 359 – 372.
[55] In particular, that New Zealand should follow the approach that was developing in England; see, R v Goffe [1963] NZLR 620 (SC) at 621; compare, Practice Direction (Costs in Criminal Cases) [1959] 1 WLR 1090 (Crim App) at 1090.
[56] R v Goffe, above n 55, at 621; Report of Committee on Costs in Criminal Cases, above n 5, at [18].
[57] Note, this included consideration of Police conduct during the investigation; see, Report of Committee on Costs in Criminal Cases, above n 5, at [19] – [20]; compare English approach, where prosecutorial behaviour was said to be irrelevant to the decision on costs; R v Sansbury [1959] 1 WLR 1091 (Assizes) at 1091.
[58] Report of Committee on Costs in Criminal Cases, above n 5; see also, Law Commission, above n 2, at [1].
[59] Report of Committee on Costs in Criminal Cases, above n 5, at 16 – 17; see also, (8 November 1967) 354 NZPD 4136 and 4138 – 4140.
[60] (6 October 1967) 353 NZPD 3542; (8 November 1967) 354 NZPD 4136 and 4138.
[61] (6 October 1967) 353 NZPD 3542; (8 November 1967) 354 NZPD 4136 and 4138; Section 14(2) repealed the pre-existing law, namely the Summary Proceedings Act 1957, ss 36(2), 72, 140 – 143 and 179; and, Crimes Act 1961, ss 391 and 402.
[62] Costs in Criminal Cases Act 1967, ss 4 and 5.
[63] Section 6.
[64] Sections 8–9; Report of Committee on Costs in Criminal Cases, above n 5, at [38]; compare, Crimes Act 1961, s 391; Davis v Samson [1953] NZLR 909 (SC) at 914; Wiley, above n 45, at [1332].
Note, that while section 8 grants a wider discretion as to costs than sections 4 or 5, in practice the courts apply the same principles, regardless of whether the matter is at trial or appeal; see, R v Kerr (No 2) CA60/91, 15 April 1992 at 2 – 4; Reihana v Probation Services HC Christchurch A95/00, 30th November 2000 at [5].
Prior to the Criminal Procedure Act 2011, costs could only be awarded for appeals from the Summary Proceedings Act 1957 or Crimes Act 1961. This is now extended to any appeal under Part 6 of the CPA.
[65] (6 October 1967) 353 NZPD 3542; (8 November 1967) 354 NZPD 4136 and 4138.
[66] See, Law Commission, above n 2, at [9] and [14].
[67] It is generally agreed this purpose is to protect the innocent; see, Tom Ellis and Mike Nash “Crime Control or Due Process” in Tom Ellis and Stephen Savage (eds) Debates in Criminal Justice (Routledge, London, 2012) at 22; Jane Creaton and Francis Pakes “Adversarial or Inquisitorial Justice” in Tom Ellis and Stephen Savage (eds) Debates in Criminal Justice (Routledge, London, 2012) at 52–53; (3 October 1961) 328 NZPD 2683 – 2684.
However, note the criminal law has also been described as a means of ensuring a stable society, as well as a means of social control; see, Ian Marsh Crime and Criminal Justice (Routledge, London, 2011) at 104 – 105 and 264; also, Ellis and Nash, above n 67, at 22 – 23.
[68] Report of Committee on Costs in Criminal Cases, above n 5, at 11 and 16 – 17; (3 October 1961) 328 NZPD 2683 – 2684; see also, Ellis and Nash, above n 67, at 22; Creaton and Pakes, above n 67, at 52 – 53.
[69] (8 November 1967) 354 NZPD 4136 and 4138 – 4140; Law Commission, above n 2, at [4]; Latoudis v Casey [1990] HCA 59, (1990) 170 CLR 534 at 542, 544 and 569; see also, Chitty, above n 12, at 829.
[70] Report of Committee on Costs in Criminal Cases, above n 5, at [28].
[71] At [28].
[72] At [25] and [38]; see also, Law Commission, above n 2, at [9] – [12] and [22] – [32].
[73] Report of Committee on Costs in Criminal Cases, above n 5, at [25].
[74] Woolmington v Director of Public Prosecutions [1935] AC 462 (HL) at 481; R v Siloata [2005] 2 NZLR 145 (SC) at [34]; Law Commission, above n 2, at [10].
[75] Law Commission, above n 2, at [9]–[10]; Law Commission Compensating the Wrongly Convicted (NZLC R49, 1998) at [17].
[76] McCluskey, above n 3, at 543; Andrew Ashworth “Social Control and Anti–Social Behaviour: The Subversion of Human Rights” (2004) 120 LQR 263 at 274; see also, R v Secretary of State for Justice [2013] EWHC 3164 (Admin) at [67].
[77] McCluskey, above n 3, at 543; Ashworth, above n 76, at 274; see also, R v Secretary of State for Justice, above n 76, at [67].
[78] (3 October 1961) 328 NZPD 2683; McCluskey, above n 3, at 543; Ashworth, above n 76, at 274.
[79] Report of Committee on Costs in Criminal Cases, above n 5, at [25] and [38]; see also, Law Commission, above n 2, at [11].
[80] Report of Committee on Costs in Criminal Cases, above n 5, at [25] and [38]; note, this was in addition to compensating for negligent or improper prosecution; see, At [38]; see also, Law Commission Costs in Criminal Cases (NZLC MP12, 1997) at [1].
[81] Report of Committee on Costs in Criminal Cases, above n 5, at [39]; note, the Committee did not explain how a defendant could “show” his or her innocence without also being required to “prove” it.
[82] At [40]; see also, (8 November 1967) 354 NZPD 4136 and 4138 – 4140.
[83] Costs in Criminal Cases Act 1967, s 5(3); see, Report of Committee on Costs in Criminal Cases, above n 5, at 16 – 17.
[84] Costs in Criminal Cases Act 1967, s 5(4).
[85] Section 5(5).
[86] Section 5(2).
[87] Section 5(2)(a)–(g); this includes whether there was actual proof of innocence, or if the acquittal was merely on technical grounds.
[88] R v AB [1974] 2 NZLR 425 (SC) at 427 – 428.
[89] Police v Smith (1968) 12 MCD 346 at 348 – 349; R v AB, above n 88, at 433; see also, Terry v Police [2014] NZHC 240 at [11].
[90] R v AB, above n 88, at 427 – 429; see, Costs in Criminal Cases Act 1967, s 5(2)(e) – (g).
[91] See, Latoudis v Casey, above n 69, at 542, 544 and 569; also consider, Stephen Waddams “Judicial Discretion” (2001) 1 OUCLJ 59 at 59 – 60.
[92] Latoudis v Casey, above n 69, at 542, 544 and 569.
[93] R v AB, above n 88, at 427–428; R v Kerr (No 2), above n 64, at 4; see also, R v Goffe, above n 55, at 621; compare, R v Rust [1998] 3 NZLR 159 (CA) at 162 – 164.
[94] See, R v Margaritis HC Christchurch T66/88, 14 July 1989 at 8; R v Connolly (2007) 23 NZTC 21,172 (CA) at [22]; Jones v Civil Aviation Authority [2009] NZCA 240 at [28]; Watt v Auckland Transport [2012] NZHC 1248 at [14].
[95] Police v Smith, above n 89, at 348 – 349.
[96] R v AB, above n 88, at 433–434; it should be noted that Chilwell J did state he had also considered other factors, but that he had decided not to explain what those were in his judgment.
[97] Jones v Civil Aviation Authority, above n 94, at [28]; citing, R v Margaritis, above n 94, at 8.
[98] R v Margaritis, above n 94, at 8.
[99] Costs in Criminal Cases Act 1967, s 5(4).
[100] R v Rust, above n 93, at 162–164; Terry v Police, above n 89, at [16]; Brown v Police HC Auckland CRI-2003-404-000194, 31 October 2007 at [6] – [10].
[101] R v Connolly, above n 94, at [22]; see also, R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [13] – [25].
[102] (8 November 1967) 354 NZPD 4136 and 4138–4140; Report of Committee on Costs in Criminal Cases, above n 5, at [38] – [40] and 16 – 17.
[103] At [25] and [38].
[104] Law Commission, above n 2, at [4].
[105] See, at [10] and [32].
[106] At [29] – [32].
[107] At [30]; note, Scotland has not followed England and Wales in awarding costs on acquittal, with the focus instead being on legal aid; see, John Knox “Black Hole Discovered in Scottish Legal System” (30 November 2012) Caledonian Mercury <caledonianmercury.com>.
[108] Law Commission, above n 2, at [30].
[109] At [30]; Report of Committee on Costs in Criminal Cases, above n 5, at [39]; Robert Thoresby “Costs on Acquittal” (1973) 36 MLR 643 at 646.
[110] At 646.
[111] At 646.
[112] Law Commission, above n 2, at [29] – [32].
[113] At [32].
[114] See, Latoudis v Casey, above n 69, at 542 – 543 and 560; R v South West Surrey Magistrates Court [2000] EWHC J0418–6 at [12]; McCluskey, above n 3, at 539.
[115] R v Connolly, above n 94, at [100]; Latoudis v Casey, above n 69, at 545; Report of Committee on Costs in Criminal Cases, above n 5, at [34]; McCluskey, above n 3, at 545; (8 November 1967) 354 NZPD 4140, per Daniel Riddiford, chair of the Statutes Review Committee considering the Costs in Criminal Cases Bill, later Minister of Justice and Attorney-General.
[116] See, R v Connolly, above n 94, at [100]; Report of Committee on Costs in Criminal Cases, above n 5, at [34].
[117] At [34].
[118] At [34] – [36].
[119] R v Reid, above n 101, at [13]–[14]; see also, Latoudis v Casey, above n 69, at 543.
[120] Costs in Criminal Cases Act 1967, s 7(1).
Note, there is no definition of the Crown for the purposes of this provision, although it is arguable it would include any entity defined in Crown Organisations Criminal Liability Act 2002, s 4; see, Laws of New Zealand Criminal Procedure (online ed) at [371]; however, the matter is not settled, see Harris v Ministry of Agriculture and Fisheries DC Whangarei CRN5088009084, 30 May 1996 at 4; compare, Commerce Commission v Bellsouth New Zealand Ltd [2000] DCR 140; and, Delamere v Serious Fraud Office [2009] NZCA 142, [2009] 3 NZLR 94 at [63].
[121] This is in addition to where prosecution is not for or on behalf of the Crown.
[122] Costs in Criminal Cases Act 1967, s 7(1)(b) and 7(2); for example, R v Reed [1980] 1 NZLR 758 (HC) at 766 – 768 where costs were payable by the Police due to negligently delaying 8 months before charging the defendant; see also, Field v Police (2010) 24 CRNZ 795 (HC) at [49] – [50].
[123] Law Commission, above n 2, at [95]; R v Reid, above n 101, at [14]; Report of Committee on Costs in Criminal Cases, above n 5, at [34] – [38].
[124] This includes private individuals and non-governmental organisations and regulatory bodies; see, Law Commission, above n 2, at [108] – [110].
[125] At [110].
[126] At [108] – [110].
[127] At [108] – [110].
[128] See, at [108].
[129] William Keough “Award of Costs to Successful Defendants in Criminal Proceedings: At What Cost Criminal Justice?” (1992) 17 Intl Legal Prac 57 at 58; Latoudis v Casey, above n 69, at 542 – 544; R v Reid, above n 101, at [13] – [14].
[130] However, the difference between truly criminal offences and regulatory offences is not always clear; for example, see Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 81 – 85.
[131] See generally, Civil Aviation Department v MacKenzie, above n 130.
[132] Law Commission, above n 2, at [30].
[133] For example, see “Compensating the Innocent” The Press (Christchurch, 5 January 2000) at 4; Steven Krieger “Do Tough On Crime Politicians Win More Elections” (2011) 45 Creighton Law Review 132 at 132 – 136; Alfred Blumstein “The Roots of Punitiveness in a Democracy” (2007) 8 Journal of Scandinavian Studies in Criminology and Crime Prevention 2 at 2; also consider, Taylor v Attorney-General [2014] NZHC 2225 at [2] – [16]; Steven Price “A Whale of a Campaign” (12 January 2010) Media Law Journal <www.medialawjournal.co.nz>.
[134] Law Commission, above n 2, at [10] – [12].
[135] See, Law Reform Commission of Canada A Proposal for Costs in Criminal Cases (August 1973) at v; Law Commission, above n 2, at [30]; note also the Australian legislative approaches in Brasch, above n 3, at 15; also consider debate surrounding David Bain and Ewan McDonald acquittals; see, Andrew Geddis “Binnie vs Fisher: The Definitive Guide” (17 December 2012) Pundit <www.pundit.co.nz>; and, Brian Edwards “Not Guilty: Why it will not be the verdict of us all” (4 July 2012) Brian Edwards Media <brianedwardsmedia.co.nz>.
[136] See McCluskey, above n 3; Brasch, above n 3, at 15; also, Law Reform Commission of Canada, above n 135; note that concerns that were raised when the United Kingdom adopted a presumption in favour of costs have proven to be largely baseless; see, Thoresby, above n 109, at 643.
[137] See, McCluskey, above n 3, at 537 and 543.
[138] See, Statement on Awarding Costs to Persons Acquitted (1952) 36 Cr App R 13 (Crim App) at 14; Russell, above n 25, at 2039; McCluskey, above n 3, at 538; see also, (9 July 1931) 254 GBPD HC 2285W.
[139] Practice Direction (Costs in Criminal Cases), above n 55, at 1090; see, R v Goffe, above n 55, at 621; Report of Committee on Costs in Criminal Cases, above n 5, at [18].
[140] Practice Direction (Costs: Successful Defendants) [1973] 1 WLR 718 (QB) at 718.
[141] At 718.
[142] At 718; for example, see R v South West Surrey Magistrates Court, above n 114, at [12]; for further discussion, see McCluskey, above n 3, at 539.
[143] R v South West Surrey Magistrates Court, above n 114, at [12]; Hussain v The United Kingdom [2006] ECHR 206, (2006) 43 EHRR 22 at [22]–[24]; see also, Philip Plowden and Kevin Kerrigan Advocacy and Human Rights: Using the Convention in Courts and Tribunals (Cavendish, London, 2002) at 377.
[144] See, Hussain v The United Kingdom, above n 143, at [22]–[23]; McCluskey, above n 3, at 541.
[145] See, R v Siloata, above n 74, at [34]; McCluskey, above n 3, at 537 and 543.
[146] Robins v United Kingdom, above n 4, at [29]; note there is no express right to actual compensation under the Convention for the Protection of Human Rights and Fundamental Freedoms (opened for signature 4 November 1950, entry into force 3 September 1953) (EU); see, Masson and Van Zon v The Netherlands [1995] ECHR 32, (1996) 22 EHRR 491 at [49].
Note, that New Zealand has also affirmed the presumption of innocence is critical to a fair trial, but as yet has not linked this to costs, see, Guy v R [2014] NZSC 165 at [37] – [41].
[147] Latoudis v Casey, above n 69, at 560, per Dawson J; see also, at 542, per Mason CJ; note, this decision was controversial and some states later enacted legislation to reverse its effect, see Brasch, above n 3, at 15; Halsbury’s Laws of Australia (online ed, 2009) Criminal Law at [130-13800]; Magistrates Court Act 1930 (ACT), s 244; Justices Act 1886 (Qld), s 158A; compare, Justices Act 1928 (NT), s 77.
[148] Latoudis v Casey, above n 69, at 542, 544 and 569; this includes such situations as where the defendant had effectively invited the prosecution to lay charges, see at 544.
[149] Law Reform Commission of Canada, above n 135, at vi.
[150] At vi.
[151] At vi.
[152] Only passing mention is made by the Law Commission, above n 2, at [28]; the presumption of innocence was not discussed at all in the Criminal Costs Committee’s report.
[153] New Zealand Bill of Rights Act 1990, s 25(c).
[154] Law Commission, above n 2, at [10] – [12]; see also, Attorney-General v Chapman [2009] NZCA 552, [2010] 2 NZLR 317 at [107]; “Compensating the Innocent”, above n 133, at 4.
[155] See, generally Law Commission, above n 2, at [10] – [12].
Note, the Law Commission’s report on Criminal Costs was completed shortly after their review on compensating the wrongly convicted and were arguably influenced by the conclusions made there; see, Law Commission, above n 75, at [E3] and [E12]; and, Law Commission, above n 2, at [9], [26] and [33]; although it should be noted, some attempt was made to distinguish approaches at [34].
[156] See, Latoudis v Casey, above n 69, at 542–544.
[157] Law Commission, above n 2, at [24]; see also, Acuthan v Coates (1986) 6 NSWLR 472 (NSWCA) at 480; Latoudis v Casey, above n 69, at 542 – 544.
[158] Acuthan v Coates, above n 157, at 480; Latoudis v Casey, above n 69, at 542 – 544; Law Commission, above n 2, at [24].
[159] Acuthan v Coates, above n 157, at 480; Latoudis v Casey, above n 69, at 542 – 544.
[160] Latoudis v Casey, above n 69, at 542; Law Commission, above n 2, at [31].
[161] Costs in Criminal Cases Act 1967, s 5(5).
[162] See, Latoudis v Casey, above n 69, at 542; see also, R v Reid, above n 101, at [13] – [14]; also consider, Costs in Criminal Cases Act 1967, s 7.
[163] Keough, above n 129, at 58; Latoudis v Casey, above n 69, at 542 – 544; see generally, McCluskey, above n 3.
[164] Costs in Criminal Cases Act 1967, s 2; this was largely a restatement of the pre-1967 approach; compare, Crimes Act 1908, s 449 and Crimes Act 1961, s 402(1); see also, Harrington v R [1994] 3 NZLR 272 (CA) at 274 – 275; McKelvey v Police HC Palmerston North CRI-2009-454-50, 3 August 2010 at [6].
[165] See, Thoresby, above n 109, at 645 – 646; Herbert Packer “Two Models of the Criminal Process” (1964) 113 U Pa L Rev 1 at 6; Keith Findley “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” (2008) 41 Tex Tech L Rev 133.
[166] See generally, Thoresby, above n 109, at 645 – 646.
[167] New Zealand Bill of Rights Act 1990, s 25; Edwin Otterbourg “Fair Trial and Free Press: A Subject Vital to the Existence of Democracy” (1953) 39 ABA J 978 at 980; see generally, Janet Hope “A Constitutional Right to a Fair Trial: Implications for the Reform of the Australian Justice System” (1996) 24 Fed L Rev 173.
[168] Packer, above n 165, at 14–16; William Laufer “The Rhetoric of Innocence” (1995) 70 Wash L Rev 329 at 332.
[169] Ashworth, above n 76, at 274; Domina Regina v Ballivos et Burgenses de Bewdley in Comitatu Wigorniæ, above n 44, at 227 and 364.
[170] Laufer, above n 168, at 348; see also, Findley, above n 165, at 144 – 146.
[171] Thoresby, above n 109, at 645; Hussain v The United Kingdom, above n 143, at [22] – [24].
[172] Laufer, above n 168, at 348.
[173] Packer, above n 165, at 13 – 14.
[174] At 13–14; Lynne Henderson “The Wrongs of Victim’s Rights” (1984) 37 Stan L Rev 937 at 946 – 947.
[175] Packer, above n 165, at 13 – 14; Henderson, above n 174, at 946 – 947.
[176] Laufer, above n 168, at 337 – 348; Packer, above n 165, at 12.
[177] Laufer, above n 168, at 337 – 348; Packer, above n 165, at 12.
[178] Packer, above n 165, at 12 – 13; Henderson, above n 174, at 944 – 949; Laufer, above n 168, at 338; see also, R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [26] – [27], per Elias CJ.
[179] Laufer, above n 168, at 337 – 348; Packer, above n 165, at 12.
[180] Laufer, above n 168, at 420 – 421; Findley, above n 165, at 146; Packer, above n 165, at 11; Henderson, above n 174, at 946.
[181] Packer, above n 165, at 11.
[182] Laufer, above n 168, at 420 – 421.
[183] At 420 – 421.
Between 2000 and 2013, 87.2% of prosecutions were successful (convicted or discharged without conviction); however, in the 15 years prior to the Law Commission’s report (1985 – 1999) the rate was only 76.5%; see, Statistics New Zealand “Adults Prosecuted in Court: All Offence Types” (1980 – 2013) NZ.Stat <nzdotstat.stats.govt.nz>.
[184] Packer, above n 165, at 11.
[185] See, Laufer, above n 168, at 420 – 421; Findley, above n 165, at 146; Law Commission, above n 2, at [12].
[186] See, Laufer, above n 168, at 420 – 421; Findley, above n 165, at 146.
[187] Packer, above n 165, at 11; Laufer, above n 168, at 420 – 421; Findley, above n 165, at 146.
[188] See, Report of Committee on Costs in Criminal Cases, above n 5, at [25]; Law Commission, above n 2, at [9] – [12], [22] – [24] and [30] – [32].
[189] Durston, above n 16, at 415 – 421; Shepherd v Mackoul, above n 30, at 327 and 1399; Chitty, above n 12, at 830.
[190] See, Report of Committee on Costs in Criminal Cases, above n 5, at [25] and [31]; for example, see Mike Hosking “Let’s Do the Decent Thing by David Bain” New Zealand Herald (Auckland, 29 January 2015) at A10.
[191] See, R v B [2008] NZCA 130, [2009] 1 NZLR 293 at [41] – [42].
[192] Richard Lippke “The Prosecutor and the Presumption of Innocence” (2014) 8 Crim Law and Philos 337 at 342; Henderson, above n 174, at 946–947 and 952–953.
[193] Krieger, above n 133, at 132–136; Blumstein, above n 133, at 2.
[194] See, Henderson, above n 174, at 946–947 and 952–953.
[195] See generally, Keith, above n 49.
[196] McCluskey, above n 3, at 538.
[197] See, Practice Direction (Costs: Successful Defendants), above n 140; Law Reform Commission of Canada, above n 135; Latoudis v Casey, above n 69.
[198] See, New Zealand Bill of Rights Act 1990; Keith, above n 49.
[199] Philip Pettit “Depoliticizing Democracy” (2004) 17 Ratio Juris 52 at 52; Donald Maletz “Tocqueville’s Tyranny of the Majority Reconsidered” (2002) 64 The Journal of Politics 741 at 741 and 755 – 761.
[200] Robert Fleck and Andrew Hanssen “Judicial Review as a Constraint on Tyranny of the Majority” (2013) 29 Journal of Law Economics and Organization 303 at 303 – 304; (3 October 1961) 328 NZPD 2683 – 2684.
[201] Re Winship 397 US 358 (1970) at 372; (3 October 1961) 328 NZPD 2683 – 2684.
[202] Law Commission, above n 2, at [10].
[203] Only costs incurred by parties to the proceedings are recoverable, meaning costs can only be awarded to the extent the defendant personally incurred costs; see, Harrington v R, above n 164, at 274–275; McKelvey v Police, above n 164, at [3] – [6]; note, there is separate debate over whether the agency responsible for providing legal aid should be able to recover costs; see, Law Commission, above n 2, at [69] – [75]; Harrington v R, above n 164, at 274 – 275.
[204] See generally, Tess McClure “Legal Aid Funding Limits Creating Justice Gap” (19 July 2014) Stuff <www.stuff.co.nz>; Liz Curran “The Impact of Legal Aid Funding Cuts” (1998) 37 International Law News 25; SM Huang-Thio “Legal Aid: A Facet of Equality Before the Law” (1963) 12 Int Comp Law Q 1133 at 1134 – 1136; Criminal Bar Association of New Zealand v Attorney–General [2013] NZCA 176, [2013] NZAR 1409.
[205] In theory costs are available for any additional expenditure outside of legal aid funding; see, Harrington v R, above n 164, at 274 – 275; McKelvey v Police, above n 164, at [6].
[206] See, R v Rust, above n 93, at 164.
[207] Robins v United Kingdom, above n 4; Practice Direction (Costs: Successful Defendants), above n 140; Latoudis v Casey, above n 69.
[208] See, R v Rust, above n 93, at 164.
[209] In dismissing a strike-out application, the High Court held it was at least arguable that such jurisdiction exists; Taylor v Attorney-General, above n 133,at [82]; see also, Claudia Geiringer “On a Road to Nowhere: Implied Declarations of Inconsistency and the New Zealand Bill of Rights Act” (2009) 40 VUWLR 613; R v Hansen, above n 178.
Note, the Human Rights Review Tribunal also has an express power to make a declaration of inconsistency, see Human Rights Act 1993, s 92J; Howard v Attorney General [2008] NZHRRT 10.
[210] New Zealand Bill of Rights Act 1990, s 25(c); See, McCluskey, above n 3, at 541; Latoudis v Casey, above n 69, at 542 – 543 and 560.
[211] New Zealand Bill of Rights Act 1990, s 5; interestingly this was also the view of the Criminal Costs Committee in recommending reform, see Report of Committee on Costs in Criminal Cases, above n 5, at 16 – 17.
[212] New Zealand Bill of Rights Act 1990, s 4.
[213] See, Brasch, above n 3, at 15.
[214] See, Alexander Volokh “n Guilty Men” (1997) 146 U Pa L Rev 173 at 180 – 185.
Note, this is distinct from debate over the purpose of the criminal law itself; see, Marsh, above n 67, at 104 – 105 and 264; also, Ellis and Nash, above n 67, at 22 – 23.
[215] Volokh, above n 214, at 180–185; Re Winship, above n 201, at 372; (3 October 1961) 328 NZPD 2683 – 2684.
[216] See generally, Volokh, above n 214.
[217] United States v Salerno 481 US 739 (1987) at 767; see also, Re Winship, above n 201, at 372; see also, Volokh, above n 214, at 180–185; (3 October 1961) 328 NZPD 2683 – 2684.
[218] For example, see Jock Anderson “Time for Lawyers to Stop Whining Over Legal Aid” New Zealand Herald (online ed, Auckland, 24 July 2014).
[219] Note, New Zealand’s approach to costs is to simply contribute to the expense and not indemnify the party receiving costs; see T v Collector of Customs HC Christchurch AP167/94, 28 February 1995 at 2 – 3; Field v Police, above n 122, at 806. This is discussed in more detail below.
[220] Robins v United Kingdom, above n 4, at [29].
[221] Report of Committee on Costs in Criminal Cases, above n 5, at 16 – 17; see also, (8 November 1967) 354 NZPD 4136 and 4138 – 4140.
[222] Comments made while Minister of Justice, during the passing of the Crimes Act 1961; see, (3 October 1961) 328 NZPD 2683 – 2684.
[223] (8 November 1967) 354 NZPD 4136; Costs in Criminal Cases Act 1967, s 6.
[224] Report of Committee on Costs in Criminal Cases, above n 5, at [46] – [47].
[225] At [46] – [47]; (8 November 1967) 354 NZPD 4136.
[226] (8 November 1967) 354 NZPD 4138.
[227] This applies to all awards in favour of defendants, whether convicted or not; see, Harrington v R, above n 164, at 274 – 275; McKelvey v Police, above n 164, at [6].
[228] Costs in Criminal Cases Act 1967, s 6.
[229] What constitutes “special circumstances” is discussed in more detail below; see also, T v Collector of Customs, above n 219.
[230] Law Commission, above n 2, at [20].
[231] See, Costs in Criminal Cases Act 1967, 13; note, the impact of regulations is discussed in detail below.
[232] See generally, Report of Committee on Costs in Criminal Cases, above n 5, at [33].
[233] See, Criminal Code Act 1893, s 419; compare, Costs in Criminal Cases Act 1967, s 4; see also, (8 November 1967) 354 NZPD 4136.
[234] Costs in Criminal Cases Act 1967, s 4(1).
Note, unlike awards in favour of acquitted defendants, Parliament did not provide any additional statutory guidance as to how the courts discretion should be exercised; compare, Section 5(2); see, R v Keesing (No 44) [1999] DCR 357 at 359.
[235] Balfour v R [2013] NZCA 429 at [134]–[135].
[236] Costs in Criminal Cases Act 1967, s 2 and 4(1); Balfour v R, above n 235, at [134]; Barr v Police [2009] NZSC 109, [2010] 2 NZLR 1 at [22].
[237] Balfour v R, above n 235, at [135].
[238] Specifically, whether only some of the charges were proved.
[239] At [130]–[131] and [135] – [136], where the Court approved the similar approach taken in R (Gray) v Crown Court at Aylesbury [2013] EWHC 500 (Admin), [2014] 1 WLR 818 (QB) at [65].
[240] Law Commission, above n 2, at [8].
[241] See, Fielding, above n 19, at 170; “Criminal Costs Assessment in Missouri”, above n 23, at 77.
[242] Law Commission, above n 2, at [8].
Note, the veracity of this claim has been debated; see generally, Hay, above n 16; Ashworth, above n 43, at 107 – 114; and David Garland The Culture of Control: Crime and Social Order in Contemporary Society (Oxford University Press, Oxford, 2001) at 30 – 33.
[243] See, Kapa v R [2012] NZSC 119, [2013] 3 NZLR 1 at [28] – [31]; Garland, above n 242, at 32 – 33.
[244] As noted above, there is a presumption that the prosecution will not pay costs unless an acquitted defendant establishes good grounds for an award; see, R v Keesing (No 44), above n 234, at 359; Balfour v R, above n 235, at [134]; Barr v Police, above n 236, at [22].
[245] See, Paul Robinson “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability” (1975) 23 UCLA Law Review 266 at 266; Garland, above n 242, at 29 – 31.
[246] Latoudis v Casey, above n 69, at 567.
[247] At 542 – 544; Packer, above n 165, at 14 – 16; Laufer, above n 168, at 332.
[248] Latoudis v Casey, above n 69, at 542 – 544.
[249] An efficient settlement is one where one party agrees to settle as it involves less cost than pursuing the case; see Packer, above n 165, at 14 – 16; Laufer, above n 168, at 332; Latoudis v Casey, above n 69, at 542 – 544.
[250] See, R v Jury CA148/02, 31 October 2002 at [26]; Steele v Commerce Commission (1992) 5 TCLR 240 (HC) at 246; R v Keesing (No 44), above n 234, at 359 – 360; R v Whalley (1972) 56 Cr App R 304 (CA) at 306; Ross v Police HC Tauranga CRI-2008-470-23, 4 September 2008 at [49]; Christchurch City Council v Lewis EnvC Christchurch CRN-05009504494, 24 May 2006 at [38] – [42].
[251] R v Keesing (No 44), above n 234, at 359; R v Jury, above n 250, at [25]; New Zealand Bill of Rights Act 1990, ss 24 – 25.
[252] Specifically, the onus is on the prosecution to show “good grounds” for an award; see, R v Keesing (No 44), above n 234, at 359; Balfour v R, above n 235, at [134]; Barr v Police, above n 236, at [22].
[253] Balfour v R, above n 235, at [136]; Butler v Motor Vehicle Dealers Institute Inc HC Invercargill AP47/93, 27 October 1993 at 9; R v Jury, above n 250, at [25]; Commerce Commission v Ecoworld New Zealand Ltd [2005] DCR 921 at [48].
[254] Although, it is important to remember costs are compensatory and not punitive in nature ; see, R (Gray) v Crown Court at Aylesbury, above n 239, at [64], approved of by Balfour v R, above n 235, at [135].
Discharges with or without conviction can be seen as an exception to this. A discharge with costs will often be seen as an alternative to a conviction and fine; see, Costs in Criminal Cases Act 1967, s 15; Sentencing Act 2002, s 106(3)(a), 108(2)(a) and 110(3)(a); Harcourt v Police HC Hamilton AP42/90, 14 May 1990 at 4; Auckland Council v Hannay DC Auckland CRI-2014-004-004045, 2 October 2014 at [31]; Ross v Police, above n 250, at [49] – [49]; Christchurch City Council v Lewis, above n 250, at [38] – [42].
[255] Kapa v R, above n 243, at [28], [31] and [38]; see generally, David McClean “Seizing the Proceeds of Crime: The State of the Art” (1989) 38 ICLQ 334 at 334 – 335 and 342.
Compare, R v Maher [1983] QB 784 (CA), which predated the power to recover proceeds of crime under the Criminal Justice Act 1988 (UK) or Drug Trafficking Offences Act 1986 (UK).
[256] See, Commerce Commission v Ecoworld New Zealand Ltd, above n 253, at [14], [40] and [55]; R v Jury, above n 250, at [25] – [26]; Balfour v R, above n 235, at [135]; Chitty, above n 12, at 829.
[257] R v Jury, above n 250, at [26].
[258] At [26]; Steele v Commerce Commission, above n 250, at 246; R v Keesing (No 44), above n 234, at 359 – 360; R v Whalley, above n 250, at 306; Starkey v Police HC Auckland AP67/90, 26 November 1990 at 7.
However, note Butler v Motor Vehicle Dealers Institute Inc, above n 253, at 9, where an award of $17,925 was not excessive due to the special circumstances of the case, despite the maximum fine only being $2000.
[259] R v Jury, above n 250, at [26]; R v Gaston [1971] 1 WLR 85 (CA) at 87; R v Muruzzaman (1979) 1 Cr App R 320 (CA) at 321.
The public interest in rehabilitation is also a significant consideration. This can be undermined if a defendant faces substantial debts on their release from prison; see, R v Judd [1971] 1 WLR 89 (CA) at 89; compare, R v Maher, above n 255 where the defendants arguably had means to pay substantial costs, which were awarded in addition to imprisonment.
[260] Sentencing Act 2002, s 9(1)(k) and 9(2)(fa)–(fb); as amended by the Sentencing (Aggravating Factors) Amendment Act 2012, s 5(1) and Sentencing Amendment Act (No 2) 2011, s 4(1).
[261] To what extent it is legitimate to increase sentences due to post-offence conduct is open for debate; although, it is suggested it may be no more controversial than using an early guilty plea as a mitigating factor; see, Julian Roberts Mitigation and Aggravation at Sentencing (Cambridge University Press, Cambridge, 2011) at 33.
[262] R v Jury, above n 250, at [26]; Steele v Commerce Commission, above n 250, at 246; R v Keesing (No 44), above n 234, at 359–360; R v Whalley, above n 250, at 306; Starkey v Police, above n 258, at 7.
However, note Butler v Motor Vehicle Dealers Institute Inc, above n 253, at 9, where an award of $17,925 was not excessive due to the special circumstances of the case, despite the maximum fine only being $2000.
[263] Harley v McDonald [2002] 1 NZLR 1 (PC) at [57]; Law Commission Review of the Judicature Act 1908: Towards a Consolidated Courts Act (IP29, 2012) at [5.25] – [5.27]; Law Commission, above n 2, at [6]; see also, R v Keesing (No 44), above n 234, at 364; Practice Direction (Criminal Proceedings: Costs) [2013] EWCA Crim 1632, [2013] 1 WLR 3255 at [4.6].
[264] See, The King v Heydon, above n 30, at 356 and 199; The King v Bartrum, above n 30, at 270 and 345; Chitty, above n 12, at 831.
[265] Law Commission, above n 263, at [5.25] – [5.27]; Law Commission, above n 2, at [6]; see also, R v Keesing (No 44), above n 234, at 364.
[266] Goodhart, above n 10, at 851 – 852.
[267] Criminal Procedure Act Commencement Order 2013, s 2; Law Commission, above n 263, at [5.27] – [5.28].
[268] Criminal Procedure Act 2011, s 364.
[269] Section 364(9); Beacon Media Group Ltd v Waititi [2014] NZHC 514 at [2].
[270] See, Criminal Procedure Act 2011, s 364; compare, Balfour v R, above n 235, at [136]; Butler v Motor Vehicle Dealers Institute Inc, above n 253, at 9; R v Jury, above n 250, at [25]; Commerce Commission v Ecoworld New Zealand Ltd, above n 253, at [48].
[271] See, Beacon Media Group Ltd v Waititi, above n 269, at [2].
[272] Criminal Procedure Act 2011, s 364(2).
[273] Section 364(1).
[274] See, Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (R126, 2012) at [9.19] – [9.23].
[275] Costs in Criminal Cases Act 1967, s 4(1) and 5(1); Beacon Media Group Ltd v Waititi, above n 269, at [2] and [5].
[276] See, Criminal Procedure Act 2011, s 364(3); the effect of regulations on the CCCA is discussed in more detail below.
[277] See, R v Jury, above n 250, at [26]; Steele v Commerce Commission, above n 250, at 246; R v Keesing (No 44), above n 234, at 359–360; R v Whalley, above n 250, at 306; Starkey v Police, above n 258, at 7.
[278] Criminal Procedure Act 2011, s 364; compare, Costs in Criminal Cases Act 1967, s 4.
[279] For example, see Roberts, above n 261, at 33.
[280] R v Jury, above n 250, at [26]; R v Siloata, above n 74, at [34].
[281] Law Commission, above n 2, at [8].
[282] One major concern is the impact on fair trial rights. It is recognised that the risk of costs can act as a perverse incentive to not properly defend oneself, or even plead guilty, despite being innocent of the accusation; see, Report of Committee on Costs in Criminal Cases, above n 5, at [33].
[283] Report of Committee on Costs in Criminal Cases, above n 5, at [49].
[284] At [49].
[285] At [49].
[286] (6 October 1967) 353 NZPD 3542; (8 November 1967) 354 NZPD 4136; Costs in Criminal Cases Act 1967, ss 4, 5 and 8.
[287] Hanan died while on a state visit to Australia in 1969. The first regulations were not passed until 1970, over a year later; see, Robson, above n 51, at 199; Costs in Criminal Cases Regulations 1970.
Note, it is also arguable that the delay may have been due to the desire to first update the Crown Solicitor Regulations; see, Report of Committee on Costs in Criminal Cases, above n 5, at [49]; Crown Solicitor Regulations 1969.
[288] Costs in Criminal Cases Regulations 1970.
[289] Regulation 3(1); compare, Crown Solicitor Regulations 1969.
[290] Costs in Criminal Cases Regulations 1987; Costs in Criminal Cases Amendment Regulations 1988.
[291] Costs in Criminal Cases Regulations 1987, reg 3; Costs in Criminal Cases Amendment Regulations 1988.
[292] Crown Solicitor Regulations 1986, reg 18.
[293] (15 September 1988) 492 NZPD 7130, Written Questions 34 and 35.
[294] Solicitor-General Certified Scale of Crown Solicitors Fees (Crown Law, 2010).
[295] T v Collector of Customs, above n 219, at 2, per Tipping J.
[296] For example see, Field v Police, above n 122, at 806; Commerce Commission v Zenith Corporation Ltd [2005] DCR 757 at [73]; Law Commission, above n 2, at [87] – [91].
[297] Costs in Criminal Cases Act 1967, ss 4(1) and 5(1).
[298] Section 13(3).
[299] (8 November 1967) 354 NZPD 4138 and 4140.
[300] Field v Police, above n 122, at 805 – 806.
[301] T v Collector of Customs, above n 219, at 2; Field v Police, above n 122, at 805 – 806.
[302] Report of Committee on Costs in Criminal Cases, above n 5, at [49].
[303] See, Field v Police, above n 122, at [44]; T v Collector of Customs, above n 219.
[304] T v Collector of Customs, above n 219, at 2 – 5.
[305] Field v Police, above n 122, at [44].
[306] Auckland Regional Council v Westgate Properties Ltd [2000] DCR 649.
[307] T v Collector of Customs, above n 219, at 4 – 5; Auckland Regional Council v Westgate Properties Ltd, above n 307.
[308] Law Commission, above n 2, at [20].
[309] At [20].
[310] At [20].
[311] R v Connolly (2006) 22 NZTC 19,844 (HC) at [87]; see also, Law Commission, above n 2, at [91]; R v Reed, above n 122, at 767 – 768.
[312] R v Connolly, above n 312, at [87].
[313] At [87].
[314] See, Report of Committee on Costs in Criminal Cases, above n 5, at [49]; Costs in Criminal Cases Regulations 1970.
[315] Report of Committee on Costs in Criminal Cases, above n 5, at [49]; (6 October 1967) 353 NZPD 3542; (8 November 1967) 354 NZPD 4136.
[316] This is also contrary to the approach taken where defendants are legally aided. In these situations, the defendant can only recover properly incurred costs, that the defendant paid in addition to any legal aid received; see, Harrington v R, above n 164, at 274 – 275; McKelvey v Police, above n 164, at [6].
[317] See, McCluskey, above n 3, at 537 and 543; R (Law Society) v Lord Chancellor [2010] EWHC 1406 (Admin), [2011] 1 WLR 235 (QB) at [48] – [58]; see, Prosecution of Offences Act 1985 (UK), s 16(7); McCluskey, above n 3, at 538; also generally, R v Wilkinson [1980] 1 WLR 396 (QB).
[318] See, McCluskey, above n 3, at 538 and 541; also, Thoresby, above n 109, at 646.
[319] McCluskey, above n 3, at 541; see also, John Rowan “Costs in Criminal Cases” (1994) NZLJ 451 at 451.
[320] See also, Law Commission, above n 2, at [80] – [91].
[321] At [20].
[322] At [7] and [80] – [94].
[323] Currently indemnity costs are generally only awarded if it was so clear the prosecution should never have been brought, that the integrity of the justice system is called into question; see, Yoon v K HC Auckland CIV-2008-404-1141, 28 August 2008 at [47] – [53].
Note, convicted defendants would continue to be protected against unduly harsh awards by the totality principle, discussed in more detail above.
[324] Costs in Criminal Cases Act 1967, s 13(3).
[325] Long Bay-Okura Great Park Society Inc v North Shore City Council EnvC Auckland A078/2008, 16 July 2008 at [282]; Ngati Hokopu Ki Hokowhitu v Whakatane District Council (2002) 9 ELRNZ 111 (EnvC) at [36].
[326] See, Long Bay–Okura Great Park Society Inc v North Shore City Council, above n 326, at [282].
[327] Costs in Criminal Cases Act 1967, s 13(3).
[328] T v Collector of Customs, above n 219, at 2, per Tipping J; Field v Police, above n 122, at 806; Commerce Commission v Zenith Corporation Ltd, above n 297, at [73]; Law Commission, above n 2, at [87] – [91].
[329] (8 November 1967) 354 NZPD 4138 and 4140.
[330] Report of Committee on Costs in Criminal Cases, above n 5, at [49].
[331] See, McCluskey, above n 3, at 541; New Zealand Bill of Rights Act 1990, ss 24 – 25.
[332] See, Report of Committee on Costs in Criminal Cases, above n 5, at [49]; also, Rowan, above n 319, at 451.
[333] Robins v United Kingdom, above n 4, at [29]; See generally, McCluskey, above n 3; Guy v R, above n 146, at [37] – [41].
[334] Costs in Criminal Cases Act 1967, s 2; this was largely a restatement of the pre-1967 approach; see, Barr v Police, above n 236, at [22]; compare, Crimes Act 1908, s 449 and Crimes Act 1961, s 402(1).
[335] See, (8 November 1967) 354 NZPD 4136 and 4140; Costs in Criminal Cases Act 1967, ss 4(1) and 5(1).
[336] Accident Rehabilitation and Compensation Insurance Corporation v Lovell [1995] NZAR 97 (HC) at 98 – 99.
[337] This also appeared to be the approach of the English courts at the time; see, R v Maher, above n 255, at 788–789; although this narrow approach was later rejected, see R v Balshaw [2009] EWCA Crim 470, [2009] 1 WLR 2301 at [6]–[9]; Practice Direction (Criminal Proceedings: Costs), above n 263, at [3.7].
[338] Accident Rehabilitation and Compensation Insurance Corporation v Lovell, above n 337, at 98 – 99.
[339] Barr v Police, above n 236, at [18] – [24].
[340] See, (8 November 1967) 354 NZPD 4136 and 4140.
The Supreme Court also noted that the decision to prosecute was not a limiting factor prior to the CCCA and there was no evidence this was intended to change; see, Barr v Police, above n 236, at [22].
[341] Costs in Criminal Cases Act 1967, ss 4(1) and 5(1); Barr v Police, above n 236, at [22].
Arguably this requirement also implies the need to consider the totality principle discussed above; see, Commerce Commission v Ecoworld New Zealand Ltd, above n 253, at [14], [40] and [55]; R v Jury, above n 250, at [25] – [26]; Balfour v R, above n 235, at [135].
[342] Barr v Police, above n 236, at [22].
[343] At [21] – [22].
[344] Law Commission, above n 2, at [35].
[345] At [32].
[346] At [8].
[347] For example, see Marie Manikis and Julian Roberts “Recognizing Ancillary Harm at Sentencing: A Proportionate and Balanced Response” (2011) 15 Canadian Criminal Law Review 131.
[348] See, R v Judd, above n 259, at 89; the Criminal Costs Committee also noted overly harsh costs awards could act as a perverse incentive for innocent defendants to plead guilty for fear of the financial implications; see, Report of Committee on Costs in Criminal Cases, above n 5, at [33].
[349] For example, see Andrew Geddis “An Open Letter to New Zealand’s People and their Parliament” (28 September 2010) Pundit <pundit.co.nz>; Dean Knight “Canterbury Earthquake Response and Recovery Bill: Constitutionally Outrageous” (14 September 2010) LAWS179 Elephants and the Law <www.laws179.co.nz>; compare (12 April 2011) 671 NZPD 17,898.
[350] Law Commission, above n 2, at [33].
[351] This excludes costs recovered from convicted defendants; see, The Treasury Expenditure Data: Estimates of Appropriations 2014/15 (14 May 2014).
Note, from 2014 payments under the CCCA are no longer accounted for separately but are now part of the overall “Court and Coroner Related Costs”.
[352] This includes appropriations made for the Attorney-General, Corrections, Courts, Justice and Police; see, The Treasury, above n 352.
[353] (3 October 1961) 328 NZPD 2683 – 2684, per JR Hanan, Minister of Justice.
