IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA656/2023
 [2024] NZCA 186

	
BETWEEN	
EUGENE ANTHONY GREENDRAKE
Appellant	
	
AND	
WAYNE ALEXANDER McCONNOCHIE
Respondent	

Hearing:	
14 May 2024	

Court:	
Mallon, Lang and Moore JJ	

Counsel:	
Appellant in person
No appearance for respondent 	

Judgment:	
29 May 2024 at 10 am	

JUDGMENT OF THE COURT

A	The application for an extension of time is granted.
B	The appeal is allowed.  The order for costs of $1,000 made in the High Court is quashed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)
Introduction
[1]	The appellant seeks to appeal out of time a costs order of $1,000 imposed by Osborne J in the High Court (the $1,000 costs order).  The order was one of a number made against the appellant arising out of a private prosecution he brought against the respondent.  The respondent abides the Court’s decision.
Background
[2]	The private prosecution arose out of an attack by a dog on two Pekin ducks on the respondent’s farm.  The appellant brought charges against the respondent under the Dog Control Act 1996 and Animal Welfare Act 1999.  
[3]	The case against the respondent was dependent on the reliability of a witness, a neighbour of the respondent.  This witness gave evidence that she saw “the farmer” come along in his truck to the paddock where the ducks were found after the attack and let a black dog out, which she claimed went “straight at the ducks”.  The witness said that the farmer then picked up the ducks and put them in a ditch.  
[4]	The trial judge, Judge Walker, formed the view that the witness’s evidence was not reliable for various reasons that he explained.  This left him with doubt that the respondent was the owner or possessor of the dog involved in the attack.  This meant that the charges were not proved beyond reasonable doubt.  Subsequently, on the respondent’s application, the Judge ordered the appellant to pay costs to the respondent of $10,000 (the $10,000 costs order).
[5]	In the meantime, the appellant applied to the High Court for leave appeal to Judge Walker’s decision.  Osborne J declined the application and reserved the question of costs.  The Judge subsequently ordered that the appellant pay costs of $4,500 (the $4,500 costs order) in relation to his unsuccessful application for leave to appeal.  
[6]	The appellant then filed an appeal against the $10,000 costs order in the High Court.  He also applied for a stay of the costs order pending the appeal and to adduce further evidence in support of his appeal against costs.  On 8 June 2023 these applications were declined by Osborne J on the papers (the stay decision).  In his decision the Judge made the $1,000 costs order against Mr Greendrake.  It is this order that is the subject of this appeal.
[7]	Subsequent to the stay decision, the appellant successfully appealed the other costs orders made against him:
(a)	On 14 August 2023, Dunningham J in the High Court allowed the appellant’s appeal against the $10,000 costs order.  
(b)	On 30 October 2023, this Court allowed the appellant’s appeal against the $4,500 costs order.  
[8]	Following these successful appeals, on 3 November 2023 the appellant filed this appeal against the $1,000 costs order.  He also applied for leave to extend the time for filing this appeal.
The decision under appeal
[9]	In the decision under appeal, Osborne J declined the application to adduce the evidence on appeal on the basis that it was not fresh.  The Judge declined the stay application on the basis that the respondent had been bearing the costs of successfully defending the charges since the September 2021 trial (it was by then June 2023) and it would be unjust to delay payment further.  The Judge then went on to make the $1,000 cost order, giving the following reasons:
Costs
[25]	Having regard to the fact this is an appeal and Mr Greendrake's two applications (in relation to the documents for a stay) have wholly failed, there should be an order of costs in favour of Mr McConnochie.  While the scale under the High Court Rules 2016 does not apply to this proceeding as an appeal in a criminal proceeding, the allocated time under the Rules for preparation of written submissions is a useful reference point.  On the basis of a 2A allocation, preparation of written submissions would be allocated 0.5 days (equating at the civil daily rate to $1,195).
[26]	In the circumstances of this appeal and the two unsuccessful applications, I consider a just award of costs to be $1,000.
Application for an extension of time
[10]	The appellant filed his appeal some four months out of time.  An extension of time may be granted if it is in the interests of justice to do so.  Relevant to this is why the appeal was filed late and what merit the prospective appeal point appears to have.
[11]	The appellant has provided the following explanation for the delay in filing his appeal.  He was busy with his other appeals.  He was unsure about the effect of appealing the $1,000 costs order on his appeal against the $10,000 costs order (which was his priority).  He raised with Dunningham J whether this could be reviewed as part of that appeal but the Judge confirmed it was not part of the appeal.  He was concerned it would be an abuse of process to appeal the $1,000 cost order while his appeal to this Court in respect of the $4,500 costs order was on foot and concluded it would be wise not to disturb the flow of that appeal.  The appellant also submits his appeal has merit and is of some public importance.
[12]	We grant an extension of time.  While the delay is not nominal, bearing in mind that the appellant is self-represented, he has provided sufficient reasons for his delay.  Against the background of the appellant’s success in his other appeals against costs orders and our view of the merits on this appeal, we consider it is in the interests of justice for the Court to hear the appeal.
This appeal
[13]	The appellant raises several grounds for his appeal.  It is sufficient that we deal with the appeal on what we regard to be the principal error in the decision to make the $1,000 costs order.  That is, that the Judge ordered costs borrowing from the approach under the High Court Rules 2016.  However, the applicable power to make a costs order in criminal cases is found in the Costs in Criminal Cases Act 1967 (the Act).
[14]	Section 5 of the Act provides the general power to order costs to a successful defendant in a criminal case.  Section 8 provides for an order for costs on an appeal as follows: 
8	Costs on appeals
(1)	Where any appeal is made pursuant to any provision of Part 6 of the Criminal Procedure Act 2011 the court which determines the appeal may, subject to any regulations made under this Act, make such order as to costs as it thinks fit.
(2)	No defendant or convicted defendant shall be granted costs under this section by reason only of the fact that his appeal has been successful.
(3)	No defendant or convicted defendant shall be refused costs under this section by reason only of the fact that the appeal was reasonably brought and continued by another party to the proceedings.
(4)	No Judge, Justice, or Community Magistrate is liable to costs just because an appeal is filed against a determination by that judicial officer.
(5)	If the court which determines an appeal is of opinion that the appeal includes any frivolous or vexatious matter, it may, if it thinks fit, irrespective of the result of the appeal, order that the whole or any part of the costs of any party to the proceedings in disputing the frivolous or vexatious matter shall be paid by the party who raised the frivolous or vexatious matter.
(6)	If the court which determines an appeal is of opinion that the appeal involves a difficult or important point of law it may order that the costs of any party to the proceedings shall be paid by any other party to the proceedings irrespective of the result of the appeal.
[15]	As this Court explained in W (CA447/2017) v R:
[15] 	… [T]here must be something significantly out of the ordinary to justify an award of costs on a criminal appeal.  Success does not of itself justify such an award.  Criminal process is part of public, rather than private law, and a different view is taken of costs in that framework.  Those convicted of crimes are seldom required to pay any meaningful contribution to the further consequences of their offending — viz the costs of their prosecution.  The same is not quite true of the prosecution, where its target is acquitted.  In such a case it may have to pay a contribution, perhaps a substantial contribution to costs.  But as s 5(2) indicates, in the trial context that rather depends on what might broadly be called prosecutorial misconduct or overreach, bearing in mind that it is the Crown which pays if an order is made in favour of the defendant.  Although s 8 is set in evidently less constrained terms when it comes to the appeal context, we do not think a different approach really applies.  None of the cases under s 8, in this Court or the High Court, suggest a more extended basis for award.  It follows that an ordinary criminal appeal involving trial counsel error or judicial misdirection is most unlikely to garner a costs order.
[16]	The heads of costs and the maximum scale costs are prescribed in the Costs in Criminal Cases Regulations 1987.  A court may make an order in excess of that 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”.  A maximum of $226 is payable to a barrister and solicitor for each half day or part half day occupied in court “[i]n respect of an appeal (except an appeal against sentence only) or an application for leave to appeal or an ancillary application”.
[17]	Before a costs order is made the court is required to give the parties a reasonable opportunity to make submissions and call evidence.  In the present case, we understand from the appellant that he was not given an opportunity to be heard before the $1,000 costs order was made against him.  
[18]	In any event, the fact the appellant’s applications were “wholly unsuccessful” is not a sufficient reason to award costs.  Costs do not normally follow the event in criminal cases.  In this case, the appellant was seeking to stay the $10,000 costs order and to adduce evidence in support of that application pending his appeal against that order.  As it has transpired his appeal against the $10,000 costs order was successful.  In these circumstances, we do not consider there was a sufficient basis to warrant a costs order on the unsuccessful ancillary applications, let alone to order costs well in excess of scale.
Result
[19]	The application for an extension of time is granted.
[20]	The appeal is allowed.  The order for costs of $1,000 made in the High Court is quashed.