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S v R [2020] NZHC 1375; [2020] 3 NZLR 205 (18 June 2020)

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JUDGMENT OF GWYN J

[Costs]

This judgment was delivered by me on 18 June 2020 at 11.30am

..............................

Registrar/Deputy Registrar

Counsel/Solicitors:

R S Reed, Barrister, Auckland K E Hogan, Barrister, Auckland Crown Solicitor, Auckland

S v The Queen [Costs] [2020] NZHC 1375 [18 June 2020]

Introduction

• [1] S was charged with manslaughter (of his son D) on 2 November 2018. He defended the charges on the basis that, rather being assaulted by his father, D’s death was the consequence of a fall from either kneeling, standing against a couch or on top of that couch. S’s trial began on 4 November 2019 and concluded on 29 November 2019 with the jury being discharged after almost three days in deliberation on the basis that they were unable to determine the charge.

• [2] By memorandum of 17 February 2020 the Crown advised that it had resolved not to seek a retrial and would, at callover, formally offer no evidence in support of the charge and invite a dismissal pursuant to s 147 of the Criminal Procedure Act 2011 (CPA). When the matter came before Moore J on 20 February 2020 he dismissed the charge against S.

• [3] S now seeks to recover costs against the Crown. He brings one application under s 364(2) of the CPA, regarding alleged breaches by the prosecutor of its disclosure obligations, and another under the Costs in Criminal Cases Act 1967. Only the second application is opposed.

• [4] This case was initially scheduled for a one-day hearing on Monday 30 March. Due to the nationwide level 4 COVID-19 alert it was agreed by the parties that it could be heard on the papers.

• [5] I will first address the application under the CPA, followed by the application under the Costs in Criminal Cases Act.

Criminal Procedure Act application

Law

• [6] Section 364(2) of the CPA provides that a court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
• [7] A procedural failure is defined as “a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act.”¹

• [8] There must be no reasonable excuse for the failure in question.² Inadvertence or oversight is insufficient to excuse a failure.³ The onus of proving a reasonable excuse is on the party responsible for the failure.

• [9] The Court of Appeal set out the purpose of a costs order under s 364(2), and its approach in Bublitz v R:⁴

... the primary purpose of s 364 is penal, for non-compliance, rather than compensatory. As s 364(3) makes plain, wasted costs of the courts, victims, witnesses and parties will be relevant to fixing the award of costs. In determining what is a just and reasonable award, the court will have regard to all relevant factors, including the extent of non-compliance, its effect on the administration of justice and also upon the participants in the proceeding. Just what weight will be given to these various factors will depend upon the particular circumstances of the case assessed.

• [10] A procedural defect must be “significant” in terms of the Act, but a “serious dereliction of duty” is not required to ground a costs order.⁵ Justice Lang in McLean v Auckland District Court accepted that s 364 is intended to operate in a summary way, allowing for flexible awards of costs to deal with procedural non-compliance in the context of busy lists.⁶ This summary nature limits the time afforded to extended discussions of reasons for non-compliance.⁷ That said, the consequences of a failure (particularly delays or added costs) will indicate its seriousness, as will the intent underpinning it.⁸

• [11] The amount awarded for such a breach must be “no more than is just and reasonable in the light of the costs incurred by the courts, victims, witnesses and any

¹ Criminal Procedure Act 2011, s 364(1).

² Criminal Procedure Act 2011, s 364(2).

³ McLean v Auckland District Court [2018] NZHC 552, [2018] NZAR 684 at [34].

⁴ Bublitz v R [2019] NZCA 379 at [44]. I note that the amount of costs ordered is not tied to or constrained by those actually incurred by the inconvenienced party.

⁵ McLean v Auckland District Court, above n 3, at [22].

⁶ At [16].

⁷ At [16].

⁸ R v Bublitz [2018] NZHC 373 at [71].

other person”.⁹ The civil costs scale is not relevant to the quantum of any award under s 364.¹⁰

• [12] The procedural failure alleged here relates to the Crown’s disclosure obligations. Under the Criminal Disclosure Act the entry of a not guilty plea triggers the requirement for the prosecutor to provide the defendant with full disclosure as soon as is reasonably practicable.¹¹

• [13] The governing principle of disclosure under the Criminal Disclosure Act is relevance: everything relevant must be disclosed and the onus is on the Police to do so, on an ongoing basis.¹² Information and exhibits are relevant if they tend to support, rebut or have a material bearing on the case against the defendant.¹³ In R v Price the Court of Appeal said that relevance is governed by a test of what might, within the reasonable contemplation of the prosecutor, be of assistance to the defence.¹⁴ Similarly, in Polounina v Police the Court cast the question as whether the information sought by the defendant would help the defence case or hinder the prosecution case.¹⁵

• [14] I note that an order for costs under s 364 does not preclude an order under the Costs in Criminal Cases Act. The regimes are separate and serve separate purposes.

The procedural failures

• [15] The submissions for S, presented by Ms Hogan,¹⁶ summarise the Crown’s failures regarding disclosure as comprising:

(a) instances where the Police or the Crown provided relevant material only after defence counsel specifically requested it;

⁹ Section 364(3).

¹⁰ Bublitz v R, above n 4, at [49].

¹¹ Criminal Disclosure Act 2008, ss 13(1) and 13(2).

¹² Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CD 12.02].

¹³ Criminal Disclosure Act 2008, s 8.

¹⁴ R v Price CA2/92, 29 June 1992 at 8.

¹⁵ Polounina v Police HC Auckland CRI-2011-404-91, 8 November 2011, at [32].

¹⁶ Ms Rachael Reed QC and Ms Hogan were counsel for T throughout.

(b) delays in responding to such requests – particularly regarding medical records and images; and

(c) the Crown initially refusing to disclose any information obtained from its own expert witnesses in response to defence expert reports, before limiting its refusal to records of such information kept by counsel.¹⁷

• [16] Ms Hogan’s written submissions helpfully set out a chronological account of various requests and responses over the course of the proceeding. Rather than set it out in full, I will summarise it in brief:

(a) CT and MRI scans were not disclosed until June 2019.

(b) Other medical and digital imaging information as well as details regarding one doctor’s examination of D was requested by defence counsel on 12 August 2019 (on which date counsel asked the Crown to double-check that it had disclosed notes and material referred to by each expert witness and any other expert who examined the deceased).

(c) On 14 August 2019 defence counsel made a further request for details of information provided to the pathologist which had assisted him in completing the autopsy, any information and briefing material provided to any other expert witness, the notes made by all expert witnesses during their examinations and while preparing their reports and any material or research they had relied upon in preparing their reports.

(d) In the 14 August request defence counsel emphasised that the obligation to disclose rested on the Police, who would know what information existed and what they should provide in order to comply with their obligations – and that specific requests by defence counsel did not diminish the obligation on Police to make full disclosure.

¹⁷ I ruled in favour of the Crown on this point during the trial, which Ms Hogan acknowledges.

(e) On 23 August 2019 the Police advised defence counsel that the requested medical information was not available and that Police surveillance information would be disclosed (which it was on 29 August).

(f) Some of the sought medical and digital imaging information (which had been requested on 12 August) and post-mortem photos were provided on 26 September 2019. They were provided in the JPG format (the format defence counsel had requested) on 27 September and 3 October respectively.

(g) Defence counsel repeated her request for disclosure of other electronic imaging on 27 September 2019 in the following terms:

We also need the brain scan images and the jpegs of the post mortem photographs, not PDFs of them.

We have been asking for these since 12 August. This material is crucial for our experts and its non-provision has seriously held us up. It is looking more and more like it will delay the trial.

Please provide me a disc with all of the images on it from the RETCAM, brain scans and the post mortem photographs all in their native form. I suggest you go to the hospital and ensure they understand what you need and have them downloaded straight onto a disc.

I would appreciate an update from you later today. I cannot emphasise enough how concerned I am about the trial date. It is not in my client’s interests that the trial be delayed and he would want to avoid that if at all possible. However he needs to protect his fair trial rights.

(h) On 31 October 2019 the defence was informed that information was available regarding various meetings between Crown counsel, the Police and various medical experts.

(i) Correspondence involving Crown expert witnesses was disclosed on 31 October 2019.
(j) Defence counsel requested notebook entries of a detective involved with the investigation on 30 October 2019 and received 11 pages of entries on 31 October.

(k) On 4 November 2019 (the first day of the trial) the Crown disclosed further correspondence involving its expert witnesses and notes of the officer in charge of disclosure regarding a further meeting with an expert witness.

(l) On 8 November, during the trial, 27 pages of the notebook of the senior officer in charge were disclosed to the defence, bearing redactions. This material had not been listed in the Police disclosure schedule. Counsel for the Crown advised that Police would fully review its compliance with its disclosure obligations over the weekend.

(m) On 11 November 2019 more than 100 pages of further material were disclosed. Later that day Crown counsel advised that further disclosure of around 120 pages would be forthcoming, leading to evidence ceasing at around 3.30 pm and the jury being discharged for the day. A significant portion of the documents provided over the course of that day had not been listed in the Police disclosure schedule. At that point the Crown assured me that its disclosure obligations had been discharged fully and all outstanding disclosure had been provided.

(n) Significant parts of the 11 November disclosure included:

(i) A written agenda and notes from a conference between the Crown and its experts of 21 December 2017. Defence counsel had repeatedly requested information involving the Crown expert witnesses and on 30 October 2019 had expressly requested a copy of this agenda (based on it being listed in a police officer’s notebook) and been told it meant a mental list rather than a physical document.
(ii) A note in a detective inspector’s notebook from December 2017 that one of the Crown expert witnesses, Dr Stables, differed from two other expert witnesses in that he “did not put any weight on eye findings”. Defence counsel submits this information was crucial to its case.

(iii) Recordings (such as one in a detective inspector’s notebook) suggesting that initial opinions held by some experts differed from those in their formal written statements.

(iv) Information regarding positive observations made of S and his family at the hospital and further exculpatory accounts he had given regarding the events that were the focus of the trial.

(o) Due to disclosure issues the jury did not sit on 12 November.

(p) On 12 November it became apparent that ESR spherical imaging material from December 2018 and profiling evidence had not yet been disclosed by the Crown. Defence counsel says the ESR spherical imaging material was a large quantity of evidence, some of which was ultimately used by the defence at trial to establish the tight dimensions of the apartment and relevant sightlines during the events in question. I ruled that the Crown did not have to disclose the profiling report.

(q) Further disclosure of correspondence and notebook entries was provided on 12 and 13 November.

Submissions

• [17] Ms Hogan in her memorandum stresses that disclosure is fundamental to the criminal trial process and a central factor in safeguarding fair trial rights and “equality of arms” as well as promoting the ascertainment of truth through trial processes. Within that framework the Crown is expected to approach its disclosure obligations

not on an adversarial basis to pursue a conviction but as a “minister of justice” holding information to ensure that justice is done.¹⁸

• [18] Ms Hogan points to the award of $50,000 (split between five defendants) under s 364 made in R v Bublitz (in the context of late disclosure requiring a retrial nine months into the initial proceeding), which the Court of Appeal upheld while observing it might have made a more substantial order.¹⁹ She also points to an award of $75,000 made in R v Lyttle, in which a defendant was convicted of murder after a number of trial dates were lost due to Police disclosure failings, which had followed persistent enquiries by defence counsel and the making of an assurance to the Court that disclosure was complete (which then turned out to be untrue).²⁰ The Court considered relevant factors making the failures serious were:²¹

  (a) they were repeated failures that repeatedly required the Court’s involvement;

(b) assurances were given to the Court that were wrong;

(c) material from a number of sources that was obviously relevant to the defence was withheld;

(d) those withholding material and making redactions to this obviously relevant material apparently did not understand their obligations and apparently did not seek advice about them;

(e) senior officers were involved in these errors;

(f) even when the Court put in place an audit process, errors continued to be made;

(g) the problems reflected inadequate systems;

(h) the ongoing failures and their nature meant there was still likely to be other material of potential significance to the defence that was not disclosed; and

(i) they occurred in the context of a murder charge with the prospect of a sentence of life imprisonment if convicted.

¹⁸ See R v Sullivan [2014] NZHC 1105 at [34].

¹⁹ Bublitz v R, above n 4, at [49].

²⁰ R v Lyttle [2020] NZHC 488.

²¹ At [68].

• [19] The Court quoted an observation in R v Askow that time awaiting trial was likely “exquisite agony for accused persons and their immediate family”, aggravating the seriousness of delays and further stresses in that period.²²

• [20] While not asserting bad faith on the part of the Police or Crown, Ms Hogan characterises them as persistently breaching their statutory duty in a way seriously prejudicial to S’s rights without a reasonable excuse. She says this was particularly egregious in the context of a prosecution which rested primarily on expert opinion evidence – evidence she characterises as sufficiently fragile to warrant the subsequent dismissal of charges.

• [21] Further, she says late disclosure included highly relevant material which was used in the defence case. The lateness of the disclosure also impeded the trial process, causing delays and placing significant undue pressure on S and his counsel. This also involved cost to S – in the form of additional privately-funded legal fees involved in repeatedly requesting disclosure and urgently reviewing late-received material, trial delay and lost income of at least 1.5 days due to the extension of the trial. These consequences contribute to both the breach being serious and the extent of award which is appropriate.²³

• [22] Ms Hogan says that all of the factors identified in Lyttle were present in S’s case, save for the Court-ordered audit,²⁴ and the fact that the charge was manslaughter rather than murder. Similarly, while the trial was not adjourned, she submits that the effect of the disclosure process being made difficult by the Crown and the Police created significant pressure and stress and warranted a trial delay to receive further material even after assurance was given, sufficient to warrant the breaches being regarded as serious.

• [23] Finally, Ms Hogan says that the Supreme Court observing that it “may well wish to consider at some point the extent to which s 364 ... has a compensatory as well as a punitive purpose”, in its decision declining leave to appeal Bublitz, implicitly

²² At [69]; quoting R v Askow [1990] 2 SCR 1199 at 1219.

²³ See R v Bublitz, above n 8, at [71].

²⁴ The Crown written submissions assume that what was ordered by the Court over the weekend of 9–10 November was in effect a disclosure audit.

supports factoring compensation of inconvenienced parties into an award under s 364.²⁵

• [24] Mr Dickey and Mr Steele in their submissions for the Crown accept that an award is appropriate but submit that it should be significantly lower than the amounts awarded in Bublitz and Lyttle, both of which involved disclosure issues of greater scale with more serious consequences.

• [25] Counsel submit that disclosure delays related to medical imaging can largely be explained by the fact that, despite being referenced by medical experts, the material was not obtained by Police for their file, and so its disclosure, once requested by the defence, was slowed by the need to obtain those images from the Auckland District Health Board (ADHB). The same is true of RETCAM and neuro imaging information, which the Crown provided after receiving it from the ADHB. Counsel notes that it is unclear what additional delay or cost to S was caused by this.

• [26] Counsel also say that some of the delays in the pre-trial process appear to be attributable to the fact that S had difficulty finding available expert witnesses, rather than those witnesses, once engaged, being unable to access necessary medical information.

• [27] Regarding disclosure delays related to correspondence between the Crown and Police and the prosecution witnesses (excluding the meeting minutes from 21 November 2017), counsel submit that the majority of correspondence was disclosed on 31 October 2019. Much of that material had been generated the week prior, and further material was disclosed as it was generated. The only material not disclosed was material I had ruled could be withheld.²⁶ Ms Hogan refutes this in her reply submissions, noting that information provided on 31 October 2019 and later included crucial tranches of information relating to expert evidence dating from December 2017. Regarding disclosure of further correspondence and notes on 4 November 2019, the day the trial commenced, Mr Dickey and Mr Steele submit that that material related to meetings conducted the preceding Friday and correspondence received over the

²⁵ Bublitz v R [2019] NZSC 139 at [16].

²⁶ In my Ruling No. 1, dated 5 November 2019.

weekend – meaning its disclosure was on the first business day it was available. Counsel also note that, due to the late disclosure of Mr Jayamohan’s brief of evidence for the defence, evidence did not commence until Wednesday 6 November anyway, leaving sufficient time for it to be reviewed by defence prior to trial.

• [28] Counsel accept that the failure to disclose surveillance information was an oversight, corrected by disclosure between 29 August and 20 September 2019. However, counsel downplay that information’s evidential value, and note the late disclosure does not appear to have given rise to delay or additional costs.

• [29] Crown counsel accept “material shortcomings” regarding the prosecution’s disclosure of information held by the Police, principally the notebook entries and other records of the conduct of the investigation. This was the issue for which a disclosure audit was required over the weekend of 9 and 10 November, following which a substantial quantity of notebook entries were disclosed for the first time, giving rise to an adjournment of one day.

• [30] Counsel accept that that procedural failure was compounded by the subsequent discovery of the spherical imaging information and profiling report following the giving of an assurance to the Court.

• [31] The Crown also accepts that disclosure issues caused a day’s delay in the trial, occupied an unnecessary amount of the Court’s time, and caused some cost and inconvenience to S and counsel (in addition to that which would inevitably arise from reviewing disclosed material).

Analysis

• [32] In Bublitz disclosure of a list of over 14,500 documents in the seventh month of trial (after the Crown had closed its case and Mr Bublitz was about to close his) led to the trial Judge aborting the trial. The Court ordered the prosecuting agency to pay the defendants $50,000.²⁷ In Lyttle material non-disclosure by the Police caused delays of almost two and a half years; defence costs because of the disclosure failure

²⁷ R v Bublitz, above n 8, at [131].

were conservatively estimated to be $250,000 after two adjournments and one declaration of a mistrial.²⁸ The Court ordered the Police to pay the defendant
$75,000.²⁹

• [33] The procedural failures and their consequences in this case were different from and of lesser magnitude than those in Bublitz and Lyttle, which counsel rightly characterise as extreme. Counsel have not provided, nor have I found in my own research, judgments of this or a more senior Court making orders for procedural failures under the CPA on the present scale.

• [34] Nevertheless, I find that in the overall context of the trial, the failures were “significant” for the purposes of s 364 of the CPA. As Lang J noted in McLean v District Court the test does not require serious dereliction of duty.³⁰

• [35] The obligation on the Crown under s 13(1) of the Criminal Disclosure Act is to disclose the information detailed in s 13(2) “as soon as is reasonably practicable after a defendant has pleaded not guilty.” In this case the events out of which the charge arose occurred in December 2017. The evidence showed an extended and detailed Police investigation from that date until S was arrested and charged with manslaughter on 2 November 2018. It was on that date that he pleaded not guilty. The trial date (or one close to it) appears to have been known to the parties since late 2018.³¹

• [36] Against that timeframe it is no answer for the Crown to say that disclosure delays relating to medical imaging, RETCAM and neuro imaging information resulted from the need for Police to obtain that information from the ADHB. The disclosure obligations sit with the Crown, not a third party such as the ADHB. It was the responsibility of the Crown to actively acquire all of the relevant information it would need to disclose under s 13 of the Criminal Disclosure Act. It did not meet its obligations by sitting back and waiting until information was requested by the defence

²⁸ R v Lyttle, above n 20, at [75].

²⁹ At [93].

³⁰ McLean v Auckland District Court, above n 3, at [22].

³¹ Justice Moore’s Callover Minute of 22 November 2018 refers to a provisional start date of 7 October 2019 and the Callover Minute of Brewer J of 13 March 2019 records a confirmed trial date of 4 November 2019.

and only then seeking to obtain it from any third parties holding relevant information. In this case, where the prosecution turned entirely on expert medical evidence, the defendant’s ability to respond to that evidence in a timely way was obviously crucial.

• [37] The failure to disclose surveillance information until August–September 2019 is similarly inexcusable in the context of the timeframes outlined above. I do not accept that this information was of “limited evidential value” as the Crown submits. As will be clear from my discussion of the Costs in Criminal Cases Act application below, the surveillance information was of significant evidential value to S, because of what it did not show: the lack of inculpatory evidence, despite extensive Police surveillance of S, was of considerable significance to him. And while the magnitude of the failure may not be reflected in specific delays in the trial or costs incurred by S, that is not the only measure. From my vantage I consider it had a significant impact on the defence case.

• [38] Further inconvenience to S, counsel and the Court was caused by the significant failures of disclosure around the Police records (which required adjournment for one day and a disclosure audit) and the Police’s discovery of further information requiring disclosure. The latter came after the point at which counsel gave an assurance to the Court that disclosure was complete. This likely caused undue additional stress on S, his family and trial counsel at an already trying time.

• [39] I find the failures were significant and without reasonable excuse. An award to penalise those responsible is appropriate. Based on my understanding of what happened and the explanations given by counsel for both sides I consider the appropriate party to make liable for those failures is the New Zealand Police.

• [40] This leaves the quantum of costs to be awarded. As noted above, in Bublitz the Court of Appeal confirmed the High Court award of $50,000, while acknowledging it might have been higher.³² The Court of Appeal also observed that the civil costs scale is not relevant to awards under s 364.³³ In Lyttle the Judge awarded $75,000 (50 per

³² Bublitz v R, above, n 4 at [49].

³³ At [49].

cent of what was sought).³⁴ Here the applicant seeks his actual costs of $249,562.40 rather than seeking specific amounts for each of the two applications. I do not think the significance of the disclosure failures can be completely separated out from the issues raised by the second application, under the Costs in Criminal Cases Act.

• [41] Nonetheless, given the two regimes are separate, I consider it is appropriate to make orders under each of them. I consider an award of $30,000 is appropriate for the application brought under the CPA.

Costs in Criminal Cases Application

Law

• [42] The application is brought under s 5 of the Costs in Criminal Cases Act (CCCA).

• [43] Section 5 provides that where a defendant is acquitted of an offence or where the charge is dismissed or withdrawn, on the merits or otherwise, the Court may order that they be paid such sum as it thinks just and reasonable towards the costs of their defence.³⁵ Costs includes any expenses properly incurred by a party in carrying on a defence.³⁶

• [44] There is no presumption for or against granting costs in any case.³⁷ Costs will not be refused or awarded solely on the basis of the dismissal of charges or charges being properly brought.³⁸ The Court must have regard to all relevant circumstances and in particular (where appropriate):³⁹

(a) whether the prosecution acted in good faith in bringing and continuing the proceedings:

(b) whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

³⁴ R v Lyttle, above n 20, at [82].

³⁵ Costs in Criminal Cases Act 1967, s 5(1).

³⁶ Section 2.

³⁷ Section 5(3).

³⁸ Sections 5(4)–(5).

³⁹ Section 5(2).

(c) whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d) whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e) whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:

(f) whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g) whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

• [45] The seven considerations set out in s 5(2) should not be taken to artificially restrict the facts which the Court can take into account in making an assessment about whether to exercise its discretion to award costs.⁴⁰

• [46] In R v CD Somers J said “I think the legislative intent is that the Court has a complete discretion but that the seven matters [in s 5(2)], or as many as are appropriate, are to be considered. In any particular case, all or any of the appropriate matters may be rejected or given such weight as the case suggests is suitable.”⁴¹

• [47] To like effect in R v Margaritis Hardie Boys J, referring to the seven considerations in s 5(2), said “all this really means is that the Court is to do what it thinks right in the particular case.”⁴²

• [48] The Court in Solicitor-General v Moore set out the following factors as underlining “the amplitude of the discretion”:⁴³

• The opening words of subs (2):“Without limiting or affecting the Court's discretion under subsection (1)”;

• The declaratory words which follow;

⁴⁰ See R v Margaritis T66/88, HC Christchurch, 14 July 1989 at 1.

⁴¹ R v CD [1976] 1 NZLR 436 (SC), at 437.

⁴² R v Margaritis, above, n 40 at 2.

⁴³ Solicitor-General v Moore [1999] NZCA 269; (1999) 17 CRNZ 671 (CA) at [31].

• The direction to “have regard” to certain matters rather than the possibly stricter requirement to “take [them] into account”: see R v C D[1976] 1 NZLR 436, 437;

• The use of the phrase “all relevant circumstances”; and

• The listing of some but not all of the circumstances (“in particular”).

[32] That repeated emphasis on the width of the power warns against any narrowing of relevant considerations by reference, for instance, to the particular wording of parts of s 5(2).

• [49] I note that costs are generally awarded to a defendant rather than against the prosecuting agency and are generally paid by the Crown.⁴⁴ The applicant must simply satisfy the Court that based on the “total history of the proceeding” there is a worthy basis for exercise of the discretion.⁴⁵

• [50] The amount awarded is generally subject to any regulations made under the Act.⁴⁶ However, under s 13(3) the Court may make an order for the payment of costs in excess of the regulation scale if it is satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.

The application

• [51] S brings his application on the grounds that:

(a) the charge against him was dismissed;

(b) the dismissal was on the merits;

(c) at the commencement of the prosecution the prosecution did not have sufficient evidence to support a conviction in the absence of contrary evidence;

⁴⁴ R v Reid [2007] NZSC 90, [2008] 1 NZLR 575 at [14]; citing “Costs in Criminal Cases” (NZLC R60, 2000) at [95].

⁴⁵ R v Rust [1998] 3 NZLR 159 (CA).

⁴⁶ Costs in Criminal Cases Act 1967, s 5(1).

(d) the prosecution did not take proper steps to investigate matters coming into its hands which suggested the defendant might not be guilty; and

(e) generally the investigation into the alleged offence was not conducted in a reasonable or proper manner.

• [52] Counsel notes that costs under the Costs in Criminal Cases Regulations 1987 would likely comprise approximately $10,848 plus disbursements as provided for in the Witness and Interpreters Fees Regulations 1974. S seeks indemnity costs, in a total of $249,562.40 in respect of his two applications. He has set out the basis for this figure in an affidavit.

Prosecutor’s fallacy

• [53] Ms Hogan’s first substantive alleged defect in the Crown’s conduct, going to the lack of sufficient evidence to support a conviction, is that the prosecution was premised on the “prosecutor’s fallacy”.⁴⁷ As Glazebrook J put it:⁴⁸

This fallacy consists of first showing that the “innocent” explanation for certain facts is highly improbable and then deducing guilt from that. That is the wrong approach. The relevant question is whether it is more likely that the deaths were natural than that they were deliberate.

• [54] In the case of Sally Clark, discussed by Glazebrook J, a key expert medical witness for the prosecution gave statistical evidence that the chance of two children from an affluent non-smoking family such as the Clarks dying of sudden infant death syndrome (SIDS) was one in 73 million.⁴⁹ The prosecutor’s fallacy consisted of first showing that the “innocent” explanation for the children’s deaths was highly improbable and then deducing guilt from that. Justice Glazebrook explains that the expert “should have assessed the probability of the alternative explanations – that the boys were victims of SIDS or that the deaths were caused by rare but natural causes missed by the pathologist performing the autopsies – and compared these explanations with the probability that a mother like Sally had murdered her first two children.”⁵⁰

⁴⁷ See Justice Susan Glazebrook “Miscarriage by Expert” (2018) 49 VUWLR 245 at 248.

⁴⁸ At 248.

⁴⁹ R v Clark [2000] EWCA Crim 54 (first appeal) and R v Clark [2003] EWCA Crim 1020 (second appeal).

⁵⁰ Glazebrook J “Miscarriage by Expert”, above n 47, at 248.

• [55] Ms Hogan argues it is improper for experts and prosecutors to pursue a prosecution solely on the basis that, because an event is unlikely or highly unusual, it cannot have occurred in the case in question. She submits that it is the two competing likelihood ratios of the prosecution proposition and the defence proposition that need to be balanced in the context of the particular context and evidence.⁵¹ In this particular case that means the appropriate question is “what is the probability of D’s injuries being caused by a low level fall as against the probability that S assaulted his son, causing the injuries?” That is contrasted with what the applicant says was the Crown’s approach here, of simply setting out that the probability in the general population of injuries such as those sustained by D being caused by a low-level fall is very low, and therefore it is extremely unlikely it occurred in this case.

• [56] Ms Hogan says that several of the Crown’s expert witnesses made the mistake of focussing on the general unlikeliness of the defence’s explanation, which was pointed out by the defence experts. A representative example is that one Crown expert, Dr Raithatha, was asked in cross examination about the differential diagnosis between a short fall and inflicted injury, and which is more likely. Her response was that it was extremely more likely to be an inflicted injury, though one could “never say never”. Conversely, a defence expert, Mr Jayamohan, gave the analogy of an aeroplane: it is highly unlikely that a plane will crash but in the rare event that it does, we do not say that it did not happen.

• [57] Ms Hogan says the Crown’s closing also emphasised this theme, focussing on the sheer unlikeliness of the defence’s explanation (that the child suffered a short fall causing his death) as a general proposition as a means of showing there was no reasonable possibility of it being true. This was then suggested to leave “only one possible explanation”: parental abuse. She says that cuts against the fact that S had “no red flags and no reason to be violent towards his child”. As such, the Crown case fundamentally rested on a misapplication of statistical logic, rendering the prosecution inappropriate.

⁵¹ At 250; citing Colin Aitken, Paul Roberts and Graham Jackson “Practitioner Guide No 1: Fundamentals of Probability and Statistical Evidence in Criminal Proceedings – Guidance for Judges, Lawyers, Forensic Scientists and Expert Witnesses” (Royal Statistical Society, 2010) at 59–62.

• [58] The Crown in response summarises the evidence of its six medical experts and concludes that on the central issue they were ad idem in concluding that it was not a reasonable possibility that the child’s injuries were the result of an accident. Counsel submit that the medical evidence, considered in conjunction with the benign environment D was in when he was said to fall and his age and development stage clearly provided a sufficient evidential foundation to support a conviction. On that basis, Crown counsel say, the prosecution case was not premised on the “prosecutor’s fallacy”. There was no reference in the Crown case to statistics and in that respect it is readily distinguishable from R v Clark, and from Sami v R where the Court of Appeal said, regarding a statistic that “only one in two million” children suffer fatal injuries in falls from less than 1.5 metres:⁵²

• [14] Care is needed with such statistics. They have a general usefulness as a diagnostic tool in that they alert an investigator or analyst to the need to consider other options. But in a trial setting they can be misused. As Mr Eaton suggests, the one in two million chance of a low fall being fatal must not become a one in two million chance that the appellant is not guilty.

• [15] To take the present case, and assuming the statistic to be valid, the information on its own does not assist. The jury is not informed of the circumstances of the one theoretical case in two million, and what it might involve; there is no material on what sort of sample produces this statistic and what number of such fatalities there might still actually be. Nor does it mean there cannot be more than one such fatality within a short timeframe. Further, presentation of a statistic like this can be unbalanced because contrary analyses are not presented. What are the comparable odds that a happy,18- year-old woman, with no history of offending or violence and with a history of being a loving and good child carer, without apparent reason would grab a young child by her face and hit her head twice onto a hard surface. As has been noted elsewhere, if this exercise were done, similar odds pointing to the appellant being not guilty may well emerge. And equally, the likely large statistic that did emerge would not mean it did not happen in this case. Just as the rarity of a low fall causing death does not mean it did not happen here.

Analysis

• [59] The Crown is correct to say that it did not rely on a statistical analysis in an explicit or literal sense. But in R v Clark Professor Meadow’s statistical evidence did not stand alone: it was led to support his opinion (based on the medical and circumstantial evidence) that two SIDs deaths in one family was “very, very, very unlikely”.⁵³ In that sense the cases are not dissimilar. The Crown’s six medical experts

⁵² Sami v R [2019] NZCA 340 (footnotes omitted).

⁵³ R v Clark (second appeal), above n 49, at [98].

did all express their conclusions in the form of the extreme unlikelihood of an accidental fall causing injuries such as those sustained by D (although none absolutely excluded the possibility of an accident as the cause of the injuries). That was also how Crown counsel characterised the question for the jury, in both the opening and closing addresses. In opening Mr Steele for the Crown said “... the medical experts you will hear from, ... are in agreement that while almost anything is possible in medicine and nobody is saying injuries such as D’s are impossible from a fall from standing the likelihood of it happening in the particular circumstances of this case are so remote that it simply does not provide a medically plausible explanation for D’s injuries or his death... the overwhelming likelihood given the nature of the injuries suffered is that they were inflicted, the result of an assault of some kind...” At the conclusion of his closing address Mr Steele said “the likelihood of these injuries occurring from a fall in the circumstances as described by S is so remote, so incredibly unlikely that he would get himself to standing, fall, incur these injuries that have never been reliably documented from a similar fall, together with retinal haemorrhaging that it is simply not, the Crown says, reasonably possible. And if it’s not reasonably possible, that’s the conclusion you reach, then there is only one possible explanation for D’s death.”

• [60] As Crown counsel put it in closing, the Crown’s case was wholly reliant on the evidence of its medical experts.⁵⁴ The Crown submits that this was a circumstantial case where the jury was asked to infer S’s guilt from the evidence put before it. The purport and effect of the Crown’s medical opinion evidence was that the likelihood in the general population of a child sustaining injuries such as D’s from a low-level fall was extraordinarily improbable. It was on the basis of that evidence almost alone that the jury was asked to infer S’s guilt.⁵⁵ Without raising the factors to be weighed against this probability, the prosecution case appears to have fallen prey to the “prosecutor’s fallacy”.

• [61] The question then is whether that created a risk of the jury misusing the assessment of likelihood – that is, understanding the Crown’s experts’ assessment that

⁵⁴ Evidence was also called from two childcare workers, an ambulance paramedic and Police officers assigned to the case.

⁵⁵ The Crown case also noted that T was the only person with E during the period when he sustained the injuries.

it was extremely unlikely that D’s injuries were caused by a low-level fall to mean it was extremely unlikely that S was innocent of causing D’s injuries.

• [62] Without more, I think it is possible that the jury might have done so. I note the comments of Phillips LJ regarding statistics in DNA in R v Doheny:⁵⁶

The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi at the other end of England at the time of the crime, it will appear highly improbable that he can have been responsible for the crime, despite his matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant.

• [63] That raises the question what could or should the Crown have done differently? Some of the commentary arising from R v Clark suggests that the problem in that case could have been dealt with by excluding the statistical evidence.⁵⁷ That was not a solution here. It was not (or not primarily) the Crown medical experts’ evidence in and of itself that gave rise to the risk of the jury misapprehending the significance of that evidence. Rather it was the totality of the Crown’s evidence. While the individual Crown expert witnesses may have been in a position to assess the likelihood of injuries such as those suffered by D being caused by a low-level fall they could not, of course, assess the competing proposition – what is the probability that S assaulted his son, causing the injuries. In her article Glazebrook J suggests that the Crown expert in the Clark case should have “assessed the probability of the alternative explanations” (being SIDS or rare but natural causes missed during the autopsies) and compared those explanations with the probability that a mother like Sally Clark had murdered her first two children – noting that double murders by natural parents were very unusual.⁵⁸ This case lacked a witness capable of comparing the two competing likelihood ratios. I recognise a particular difficulty, in that it is not possible to simply determine a statistical figure for the probability of a father with S’s particular characteristics, in his particular position, assaulting and injuring his child. It was not for the medical experts to assess the other, non-medical, evidence.

⁵⁶ R v Doheny [1996] EWCA Crim 728; [1997] 1 Cr App Rep 369, at 4.

⁵⁷ See Richard Noble and David Schiff “Misleading statistics within criminal trials” (2007) 47(1) Med.Sci.Law 4 at 10.

⁵⁸ Justice Glazebrook “Miscarriage by Expert”, above n 47, at 248.

• [64] It may, as suggested by Nobles and Schiff, that where the outcome of a trial depends exclusively, or almost exclusively, on a serious disagreement between distinguished and reputable experts, be unwise and unsafe to proceed to put the case to a jury.⁵⁹ But that is a counsel of perfection. Where, as here, the case is to come before a jury the question is what other means are available to ensure that the jury correctly understands the evidence and the competing propositions. Could the Crown have presented other evidence and/or explained to the jury the risks of misinterpreting what the Crown experts had to say about likelihood, in a way that minimised that risk? I consider the way the Crown framed its case overall – in its opening and closing addresses and the choice of which evidence to put before the jury – had the effect of, ultimately, framing the question for the jury almost entirely in general terms of an overwhelming likelihood that D’s injuries were not the result of a low-level fall and therefore that S was guilty, with the possibility that he was not guilty left solely to the fact that (statistical) certainty is impossible.

Insufficiency otherwise

• [65] To determine whether the Crown’s case was premised on the prosecutor’s fallacy and to address the issues in s 5 of the CCCA, it is necessary to look at the totality of the Crown’s evidence, not just that of the medical experts. Under this heading Ms Hogan refers to:

(a) to the fact that none of the Crown expert witnesses could exclude the possibility of D’s injuries being caused by a low level fall;

(b) the inconsistencies between the Crown experts as to the mechanism of injury;⁶⁰

⁵⁹ Richard Noble and David Schiff “Misleading statistics within criminal trials”, above n 57, at 10.

⁶⁰ Professor Colin Smith posited three possible mechanisms, a punch to the head, a slap to the head or being thrown on to soft furniture. Professor Smith and Dr Stables excluded the possibility of the child’s injuries having been caused by shaking. Dr Stewart Carroll on the other hand said that it was “highly improbable” that the extensive bilateral retinal haemorrhages which he noted in his examination of the child could have been caused by any of the mechanisms suggested by Professor Smith. Dr Raithatha emphasised the relevance of retinal haemorrhages to the likelihood that the injuries were not caused by a fall.

(c) the Crown’s failure to produce, or put to its expert witnesses, the readily available evidence of the child’s mobility and leg strength;

(d) the Crown’s failure to utilise available head circumference data indicating D may have suffered from benign enlargement of subarachnoid space (BESS), which would have created a predisposition to the type of injury he sustained;

(e) the evidence of S’s wife, family, friends and work colleagues about his character and relationship with his child, together with the lack of any evidence to undermine that character evidence or S’s account of events (despite extensive investigation into every aspect of S’s personal life and extensive surveillance of him and his wife); and

(f) S’s detailed and verifiable account of what occurred in the period between him and D arriving back at the apartment and his call to the Plunket Line.

• [66] Ms Hogan also submits that Dr Raithatha specifically evinced and was accused of cognitive bias in the course of her evidence.

• [67] Ms Hogan says that while counsel for S could have sought dismissal of the charge against him on the basis of the Crown reliance on the prosecutor’s fallacy and/or insufficient evidence generally, such an application could only have been brought at the conclusion of the defence case, by which point it was clear that the Crown relied solely on the evidence of the medical experts as to the (statistical) unlikelihood of the child’s injuries being caused by a low level fall. The position as to costs would be no different if the application had been made then than it is now.

• [68] Ms Hogan points to various other factors which she contends demonstrate the insufficiency of the Crown’s case.

• [69] First, counsel says that when the matter came before Moore J on 20 February 2020 the Crown effectively conceded that its evidence did not meet the test in the

Crown Prosecution Guidelines by formally offering no evidence in support of the charge and inviting a dismissal pursuant to s 147 CPA. The evidence available at that point was unchanged from that available to the Crown throughout the proceeding. Counsel says that that decision must amount to a concession because, having regard to the two part test for prosecution, there must always be a public interest in determining whether a father assaulted his child in an unlawful act so as to cause the child’s death.⁶¹ As such, the Crown’s decision not to pursue a retrial must have been made on the basis of the view that it had insufficient evidence.

• [70] Counsel for S sought discovery from both the Crown Solicitor and the Solicitor-General of the legal advice underpinning the decision. Discovery was refused. Counsel submits that if the Court is minded to have regard to the Crown’s explanation for the decision not to seek a retrial this costs application should be adjourned to allow S to make an application under s 30 of the Criminal Disclosure Act for all information held by the Crown in relation to its decision to offer no evidence against S.

• [71] The Crown in response says that the decision not to seek a retrial was an exercise of prosecutorial discretion “entirely unique to this case”. It refutes the suggestion that there was insufficient evidence to support a conviction, noting there had already been a trial; the child’s family had never been supportive of the prosecution; the jury had been unable to reach a verdict after almost three days of deliberation; and the volume and complexity of the medical evidence might again result in a jury of laypeople struggling to reach an agreed position. Counsel for the Crown contend that there remains, as a matter of law, sufficient evidence to support S’s conviction. The Crown opposes an adjournment for the purpose of a discovery application.

• [72] I do not accept that, as a matter of necessary inference, the Crown’s decision not to seek a retrial can have been made only on the basis of insufficiency of evidence. The public interest test in the Prosecution Guidelines is framed in very broad terms,

⁶¹ Part 5 of the Solicitor-General’s Prosecution Guidelines (as at 1 July 2013) sets out two tests for prosecution to be initiated or continued. There must be evidence sufficient to provide a reasonable prospect of conviction and prosecution must be required in the public interest.

setting out examples of public interest considerations for prosecution and against prosecution, but noting “these considerations are not comprehensive or exhaustive. The public interest considerations which may properly be taken into account when deciding whether the public interest requires prosecution will vary from case to case”.⁶² In any event, whether there was sufficient evidence is ultimately a matter for the Court. I do not need to delve into the Crown’s internal reasoning when deciding not to retry S in order to award costs under the CCC Act. I consider it unnecessary to adjourn this application to allow a s 30 Criminal Disclosure Act application by S.

• [73] The Crown’s related submission is that the Court has already determined the sufficiency of evidence question in the Crown’s favour. This is a reference to S’s application under s 147 of the CPA seeking dismissal of the charge of manslaughter at the conclusion of the Crown case, which I dismissed.⁶³ S subsequently sought a direction to the jury that they must be unanimous as to the specific mechanism of the assault which the Crown alleged resulted in the child’s death. I declined to give such a direction.⁶⁴

• [74] However, as Ms Hogan notes in her submissions, the s 147 application was made on a focussed basis, which was that there was insufficient prosecution evidence as to mechanism (the assault) and the jury would be required to improperly speculate. I agree that my ruling on that application is not a complete answer to the question now before me as to whether there was an insufficiency of evidence for the purposes of s 5(2) of the CCCA. In that respect it is different from R v Sotheran where Gendall J found, for the purposes of s 5(2)(b) of the CCCA that his refusal to grant a discharge supported the conclusion that there was sufficient evidence to place the accused on trial.⁶⁵

• [75] Ms Hogan emphasises that S’s conduct throughout the lengthy investigation and trial process was consistently exemplary, despite the pressures it placed on him and his family. This included cooperating to the full extent of his ability at relevant

⁶² At 5.10.

⁶³ R v [T] [2019] NZHC 3027.

⁶⁴ R v [T] HC Auckland CRI-2019-004-009850, 25 November 2019 (Ruling No 4).

⁶⁵ R v Sotheran HC Palmerston North T31/00, 2 May 2002 at [20]; the discharge application was brought under s 347 of the Crimes Act 1961.

points with Police, medical professionals and social workers, even allowing Police to attend his son’s funeral and cooperating after discovering they had placed listening devices in his home and car and tapped his and his wife’s phones and behaving appropriately throughout the trial process itself.

• [76] Finally, Ms Hogan submits that the submissions set out above regarding costs for the failures of disclosure also point towards an award of costs under s 5 CCCA.

• [77] In response, counsel for the Crown reject the contention that the Crown did not properly investigate the defence experts’ reply. Their reports were provided to the Crown’s own experts for comment; all of them remained unchanged in their opinion. The Crown submissions largely focus on the expert medical evidence, emphasising that that evidence, in conjunction with the benign environment in which D was said to have fallen, his age and developmental stage and the jury’s collective life experience, together provided a sufficient evidential foundation for a conviction. The Crown submits that “the prosecution was premised, as in any circumstantial case, on the ability of a jury, appropriately assisted by authoritative specialist opinion, to infer from a particular combination of facts the guilt of S in the absence of a compelling explanation to the contrary.”

• [78] The Crown relies on s 107(3)(a) of the CPA which it says “confers on the Crown an absolute discretion as to the presentation of its case” and notes (pointing to R v Wilson) that the Court is typically reluctant to interfere with that discretion in the absence of an improper motive on the part of the Crown or unfairness to the defendant.⁶⁶ The Crown says neither of those was present here. Crown counsel also note that, conscious of its obligation of fairness, it offered at least twice to consider “reading the admissible portions of the statement(s) of any of those witnesses not listed, and that you consider to be relevant/probative.” It says the defence response was to ask only for the reading of the statement of one doctor.

• [79] Counsel further stress the degree to which the investigation process was thorough and long-running, with S being charged almost a year after D’s death. The Crown rejects characterisations of that investigation as unduly intrusive and

⁶⁶ R v Wilson [1997] 2 NZLR 500 (HC) at 510.

suggestions of partiality on behalf of either the Crown or Police. While acknowledging S’s behaviour was “exemplary” throughout the investigative and trial process, counsel say there is nothing to justify an award of costs in this case.

Analogy to other cases

• [80] In terms of analogies to other cases, Ms Hogan submits that S’s position is dissimilar to Bublitz, in which a $75,000 award was made under the Costs in Criminal Cases Act in a position where none of the charges against one of the parties were dismissed on the merits.⁶⁷

• [81] She says this case is closer to Ministry of Fisheries v Maruha Corporation Ltd.⁶⁸ That case involved an applicant against whom five allegations of misreporting fish weight had been dismissed. While there had been no finding of bad faith, the trial judge was critical of the investigation and the prosecution experts (who had lacked relevant expertise and attacked the applicant’s expert witness, whose evidence the Court ultimately accepted, as “emotional and unreliable”), and appeared to consider the prosecution had lacked objectivity in bringing and pursuing its case.⁶⁹ That prosecution had also exposed the applicant to considerable risk both in terms of its commercial reputation and in the potential to lose over $20 million. It was also apparent on appeal that the evidence did not support a finding of guilt.⁷⁰ The Court upheld an award of $225,000 plus disbursements under the CCCA. In upholding that award, the Court noted that it would inevitably consider the actual solicitor-client costs of a party once it had decided to make an award in excess of the scale.⁷¹ Making an award in excess of the scale simply required “special” rather than “exceptional” circumstances.⁷²

• [82] Another factor in Maruha which Ms Hogan emphasises was that reports from reputable defence experts had been provided before the trial, requiring the Crown to

⁶⁷ Bublitz v R, above n 4.

⁶⁸ Ministry of Fisheries v Maruha (NZ) Corporation Ltd, HC Christchurch CRI 2006-409-20, 9 June 2006.

⁶⁹ At [35]–[46].

⁷⁰ At [47].

⁷¹ At [35].

⁷² At [40].

carefully assess the strength of its own evidence.⁷³ Ms Hogan says the same was true in this case regarding the “prosecutor’s fallacy”, which was raised in the two defence expert witness reports. From the outset the theory of the defence case was that although it is rare for children to die at home from low level falls that did not rule it out as a possibility, and the evidence in this case pointed away from the alleged assault. Ms Hogan says that issue was before the Crown from the beginning of the trial, particularly in the expert evidence of Dr Skellern, who said that the fall S described was a reasonable possibility, and his account was plausible on the medical evidence.

• [83] Ms Hogan says that, when serving the brief of Dr Skellern on the Crown, defence counsel expressly reserved the issue of costs should the Crown decide to proceed to trial regardless. She says the Crown’s decision to proceed should weigh against it for costs purposes.

Analysis

• [84] Ms Hogan submits that the Crown failed in its fundamental obligation to call “witnesses essential to the unfolding of the narratives on which the prosecution is based, ... whether in the result the effect of their testimony is for against the case for the prosecution.”⁷⁴ That submission is not directly addressed by the Crown in its reply, which focusses on the medical and other evidence collectively supporting conviction, the lack of a credible alternative explanation and the discretion afforded to the Crown in its prosecutorial decisions.

• [85] The principal authority for the “fundamental obligation” referred to by the applicant’s counsel is Seneviratne v R where the Privy Council said:⁷⁵

It is said that the state of things above arose because of a supposed obligation on the prosecution to call every available witness ... to the effect that all available eye- witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defence witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on such a matter such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must

⁷³ At [7].

⁷⁴ Simon France (ed) Adams on Criminal Law, above n 12, at [TP 24.06].

⁷⁵ Seneviratne v R [1936] 3 All ER 36 (PC) at 48 and 49 (emphasis added).

call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defence. If it does so confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether I the result the effect of their testimony is for or against the case for the prosecution.

• [86] In R v Sullivan Heath J referred to the Crown as a “minister of justice” in the context of the Crown’s disclosure obligations, but the term and the concept it embodies clearly has application beyond the disclosure context.⁷⁶ His Honour went on to quote Sopinka J in R v Stinchcombe:⁷⁷

I would add that the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. ...

• [87] Statements to similar effect are found in other cases, such as Ministry of Fisheries v Maruha:⁷⁸

It is always the duty of a prosecutor to be objective, open, and even handed.

• [88] And finally, R v Wilson, which the Crown cites, is relevant on this point:⁷⁹

In deciding the basis on which the Courts in this country may “interfere” regard should be had to the guidelines for prosecutors laid down in the overseas authorities. Overall, the prosecutor must consider the interests of justice. The prosecution will normally call the witnesses essential to the unfolding of the narrative; but one ground for the exercise of the discretion not to call a witness is that the prosecutor regards the witness’s evidence as unworthy of belief...

• [89] What did that fundamental obligation require of the Crown in this case? Was it, as the applicant says, to call evidence on the matters referred to at paragraph [65] above? The relevant witnesses here would have been Police witnesses as to the investigations into and surveillance of S and what they had to say about the absence of any evidence found to support a view that S was capable of, or likely to, have assaulted his son in December 2017 or to have admitted to anyone else that he did assault D or had attempted to conceal or lie about what he had done. The Privy

⁷⁶ R v Sullivan, above n 18, at [34].

⁷⁷ At [34]; quoting R v Stinchcombe [1991] 3 SCR 326 (SCC) at 333.

⁷⁸ Ministry of Fisheries v Maruha, above n 68, at [71].

⁷⁹ R v Wilson, above n 66, at 510.

Council’s caution in Seneviratne against the prosecution calling witnesses who it would then need to attempt to discredit would plainly have no application to that evidence.⁸⁰

• [90] The other evidence that Ms Hogan says ought to have been put before the Court by the prosecution was from D’s maternal grandmother, D’s mother (and S’s wife), S’s friends and work colleagues and the Plunket nurse from the clinic D attended, all of whom had been interviewed by the Police and most of whom had given statements during the course of the investigation. D’s grandmother’s unchallenged evidence when called by the defence was that D could stand and she had seen him do so once, ten days prior to him being injured.

• [91] As the Crown concedes, its case was entirely based on the evidence of its medical experts. Crown counsel noted in opening and closing submissions that S was “an otherwise loving and attentive father” and “by all accounts, a measured and responsible man ... you’d be justified in concluding that he’s a good guy.” But the Crown did not call evidence (evidence it had gathered) of the extensive Police investigation which revealed nothing inculpatory. Of significance, it did not call D’s grandmother’s evidence about having seen D pull himself to standing. It might be inferred from the Crown submissions that it saw the evidence of D’s maternal grandfather to like effect as coming within the discretion referred to in R v Wilson – that a prosecutor need not call evidence they regard as unworthy of belief.⁸¹ But the Crown did not challenge D’s grandmother’s evidence on this point when she was called for S. And of course that discretion cannot be relevant to the other evidence amassed by the Police and referred to above.

• [92] I conclude that, notwithstanding the Crown’s discretion as to the way in which it presented its case, the obligation on the Crown in accordance with the overall interests of justice, including fairness to the defendant, was to put before the jury the evidence the Police had gathered that tended to support the second likelihood proposition (regarding whether S would assault his child). That obligation arises from

⁸⁰ Seneviratne v R, above n 75, at 49.

⁸¹ R v Wilson, above n 66, at 519. The Crown sought to question E’s maternal grandfather’s credibility at trial.

the particular context of this case where, as the Crown acknowledges, its case was entirely dependent on opinion evidence from medical experts and on inference, and where there was no direct evidence of S assaulting D, or any evidence that he was a man likely to or capable of doing so.

• [93] Next, I consider whether the Crown met that obligation by its offers to consider “reading the admissible portions of the statement(s) of any of those witnesses not listed, and that you consider to be relevant/probative.” On this point, counsel for S says the offer was made by the Crown two weeks prior to trial commencement and in the context of discussions about including, by agreement under s 9 of the Evidence Act 2006, evidence from witnesses the Crown had removed from its witness list. Counsel says the potentially-exculpatory witnesses in question were never in the Crown’s witness list. Counsel did not apprehend the Crown was referring, in its offer, to those witnesses. I conclude that in those circumstances the obligation was not met.

• [94] Where the Crown experts could not exclude the possibility of a low-level fall resulting in injuries such as D’s there was an obligation to present the evidence it held which would have assisted the jury to exclude – or not – that possibility. Whether viewed through the lens of the “prosecutor’s fallacy” or as a failure to call essential witnesses, the consequence is the same. Significant evidence which went both directly and indirectly to the competing likelihood propositions explaining D’s death was not put before the jury by the Crown. I have had regard to whether that deficiency was ameliorated by the evidence in question ultimately being put before the Court, through defence witnesses and cross-examination of Police witnesses as well as in my summing up. In my view there is a meaningful difference between the Crown framing the question to the jury as two competing likelihood propositions versus what happened in this case, where the Crown presented a view of the probability of an accident being almost overwhelmingly low, but did not focus on the evidence as it related to the applicant, including other factors that might modify that likelihood. It was left entirely to the defence to try and dislodge that view by presenting evidence regarding the second proposition.

• [95] Finally, I have had regard to S’s conduct, which is one of the relevant matters specifically referred to in s 5(2)(g). I accept that his conduct throughout the lengthy

investigation and the trial was exemplary. The only criticism made of him by the Crown was in closing, when Crown counsel suggested that perhaps he was “trying a little hard.”

• [96] I acknowledge the unusual nature of this case, when one views the total history of the case. Having regard to that totality, I conclude that an award of costs under s 5 of the CCCA is just and reasonable. I also conclude that, as in Bublitz, scale costs are inadequate. The special circumstances of this case require an award in excess of scale. Having regard to the breadth of the Court’s broad discretion and the issues raised, particularly the question of the “prosecutor’s fallacy”, and taking the CPA and CCCA applications together, I conclude that a total overall award of roughly 70 per cent of S’s actual costs is appropriate. S’s costs total $249,562.40. 70 per cent of that figure is $174,693.68. I have awarded $30,000 under the CPA application above. I consider an award of $145,000 is appropriate under the CCCA application.

Result

• [97] I make two awards:

(a) I award $30,000 against the Police to S under s 364(2) of the Criminal Procedure Act; and

(b) I award $145,000 to S under s 5 of the Costs in Criminal Cases Act.

Suppression

• [98] There is a permanent suppression order, made in the criminal proceedings, which suppresses the names and any identifying details of S, S’s wife, D and D’s brother. That order operates in respect of this judgment also, to prevent publication of their names or details identifying them.

Gwyn J