IN THE Court of appeal OF new Zealand
	
CA448/2011
[2013] NZCA 317

BETWEEN	
COMMISSIONER OF POLICE
Appellant	

AND	
ROBIN ADRIAN BURGESS AND LLANNYS GWEN BURGESS
Respondents	

Hearing:	
26 April 2012, 13 July 2012 and 3 August 2012	

Court:	
O’Regan P, Ellen France and White JJ	

Counsel:	
D G Johnstone for Appellant
A G Speed for Respondents

Judgment:	
19 July 2013 at 10 am	

	
JUDGMENT OF THE COURT
A	The appellant must pay to the respondents costs and disbursements totalling $5,560.  
B	We authorise the Registrar to pay the sum held as security for costs to counsel for the respondents.  
____________________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)
Introduction
[1]	The Commissioner of Police appealed to this Court against a decision of Asher J dismissing an application for an examination order under the Criminal Proceeds (Recovery) Act 2009 (CPRA) against the Burgesses.  
[2]	The appeal was filed on the understanding that it was a civil appeal.  The Commissioner paid $5,560 as security for costs in accordance with r 35 of the Court of Appeal (Civil) Rules 2005 (the Civil Rules).  
[3]	On 25 September 2012, this Court held that it did not have jurisdiction to hear the appeal.  The basis of that decision was that applications for examination orders are criminal proceedings, and therefore s 66 of the Judicature Act 1908 does not provide a jurisdictional foundation for an appeal against the dismissal of such an application.
Costs application
[4]	Counsel for the respondents now seeks costs under r 53 of the Civil Rules.  The Commissioner opposes the award of costs on the basis that the Civil Rules are “of limited application”, given that this Court held that the decision dismissing the application for an examination order appeal was a criminal matter.  The Commissioner also argues that the Court made no order for costs in its 25 September 2012 judgment and says that is determinative.  We have dealt with the costs application on the papers.
Do the Civil Rules apply?
[5]	The threshold issue is whether the Civil Rules apply to the appeal.  Perhaps surprisingly, given our decision that the appeal itself was a criminal matter to which s 66 of the Judicature Act does not apply, we consider that the Civil Rules do apply, for the following reasons:  
(a)	The Court of Appeal (Criminal) Rules 2001 (the Criminal Rules) do not apply to the appeal.  The Criminal Rules apply only to those types of proceeding listed in r 4 of the Criminal Rules.  This appeal is not one of those types of proceeding.
(b)	The Civil Rules apply “to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply”.  As the Criminal Rules do not apply, the Civil Rules do apply.
(c)	The Costs in Criminal Cases Act 1967 does not apply.
Reasons – further detail
[6]	Rule 4 of the Civil Rules states that:
4	Application of rules
(1)	These rules apply to all proceedings of the Court, except proceedings to which the Court of Appeal (Criminal) Rules 2001 apply.
[7]	Therefore, the question to be answered is whether the Criminal Rules apply to this proceeding.  If the Criminal Rules do not apply, then the Civil Rules will apply.
[8]	Rule 4 of the Criminal Rules stated (prior to their amendment to provide for the coming into force of the Criminal Procedure Act 2011):
4	Application of rules 
(1)	These rules apply to—
(a)	applications for leave to appeal under Part 13 of the [Crimes Act 1961]; and
(b)	prosecutor appeals; and
(c)	general appeals; and
(d)	bail appeals; and
(e)	summary proceedings appeals and applications for special leave to appeal under section 144(3) of the Summary Proceedings Act 1957; and
(f)	extended supervision order appeals.
(2)	These rules also apply to steps that are incidental to appeals referred to in subclause (1) (including applications made to the Court for leave to appeal in relation to those appeals).
(3)	On its own initiative or on the application of a party, the Court or a Judge of the Court may direct, authorise, or accept a departure from these rules for reasons of urgency or for any other reason.
[9]	The present proceeding does not fall into any of the categories of proceeding listed in subclause (1): 
(a)	The proceeding is not a “prosecutor appeal” as it is not brought by a prosecutor.  A “prosecutor appeal” is defined in r 3 as an appeal brought by a prosecutor under any Act (except the Parole Act 2002).  A “prosecutor” is defined in r 3 as the Solicitor-General or a prosecutor.  The Commissioner of Police is neither of these.  Nor is counsel acting for the Commissioner.  
(b)	The proceeding is not a “general appeal”.  A “general appeal” was defined in r 3 as an appeal under s 383(1) or 384 of the Crimes Act 1961.  This proceeding is not brought under either of those provisions (indeed, it is not brought under any provision, which is why this Court did not have jurisdiction to hear it).
[10]	Nor does subclause (2) apply to this proceeding.  The proceeding is not “incidental” to any of the types of appeal referred to in subclause (1).  Is it is an appeal against a decision declining an application for an examination order under the CPRA.  While CPRA proceedings are sometimes related to criminal proceedings (although s 15 of the CPRA makes it clear that a criminal proceeding is not necessary for the CPRA to be engaged), it could not be said that an appeal against the dismissal of an application for an examination order is “incidental” to an appeal against a criminal conviction or sentence, or an appeal against an extended supervision order.
[11]	As the Criminal Rules do not apply to this proceeding, the Civil Rules apply by virtue of r 4 of the Civil Rules.  We conclude, therefore, that the respondents are entitled to seek costs under r 53.
[12]	As a cross-check, we have considered whether the Costs in Criminal Cases Act 1967 (CCCA) applies to the appeal.  We conclude that it does not.  Pursuant to s 8 of the CCCA (prior to amendment for the Criminal Procedure Act 2011), costs could be awarded under the CCCA only on appeals made pursuant to the provisions of the Summary Proceedings Act 1957 or the Crimes Act 1961.  It is also clear from reading ss 4–6, which concern costs awards to prosecutors, successful defendants and convicted defendants, that the CCCA was intended to apply only in relation to criminal prosecutions.  An appeal against the dismissal of an application for an examination order does not fit into that category of proceeding.
Should costs be awarded?
[13]	Having concluded that there is jurisdiction to grant costs, we now consider whether an award should be made.
[14]	The Commissioner argued that the substantive judgment did not include an award of costs and that should be determinative.  We do not see it that way.  Rather, in deciding we had no jurisdiction to hear the appeal, we were required to consider whether the proceeding was civil or criminal.  It was understandable that, while that issue was unresolved, counsel for the respondents did not address costs issues.  Because he did not do so, the Court did not do so either.  Counsel has now made an application and we consider we should deal with it.
[15]	As is clear from our substantive judgment, the unusual outcome of the case is that the Commissioner commenced the appeal but, ultimately, ended up arguing that it should be dismissed for want of jurisdiction.  In those circumstances, we consider the respondents ought to receive a fair contribution to the costs of their counsel’s participation in the three hearings.  However, after the first hearing he was not required to take an active role and we do not see full scale costs as necessarily justified.

Result
[16]	Taking matters in the round we consider that justice would be done by awarding the Burgesses a global sum for costs and disbursements equal to the amount held by the Registrar as security for costs.  We order accordingly.  

Solicitors: 
Crown Law Office, Wellington for Appellant