Rhodes v Mani [1982] CKCA 2; CA Appeal No. 1 of 1981 (2 June 1982)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
Appeal No: 1/81

BETWEEN

IAN NICHOLSON RHODES
APPELLANT

AND

TUAINE TUTU MANI
RESPONDENT

Coram: Sir Robin Cooke, President
Sir Clifford Richmond
Mr Justice Dillon

Counsel: M.A. Bungay for Appellant
J.H.C. Larson for Respondent

Hearing in Wellington: 26 February 1982
Judgement: 2 June 1982

JUDGMENT OF THE COURT DELIVERED BY COOKE P.

This is an appeal by leave granted by this Court (Cooke P., Donne C.J., St. John C.J.) in a judgement delivered by the Chief Justice on 4 September 1981 from a refusal by the High Court (Criminal Division) to award any costs to the present appellant after his discharge on a count of rape. The Chief Justice had moved the notice of motion for leave to appeal into this Court under S.53 of the Judicature Act 1980-81. Subsequently he has given a direction under Rule 3(3) of the Court of Appeal Rules 1981 that the appeal be heard in Wellington.

The basic facts are that on Friday 20 February 1981 a young married woman, who was separated from her husband and had given birth to a child in November, was at the Banana Court late at night and went with the appellant in his car afterwards. In evidence she said that she thought he was taking her to the Happy Valley disco, but he stopped at his house instead. They went inside and remained there for more than an hour. Intercourse occurred; she thought that it occupied about 20 minutes. She testified that in the initial stage she felt 'something like a finger' inserted into her vagina and after that she felt pain. Later she discovered that she was bleeding. He drove her home afterwards. She was unable to stop the bleeding effectively during the night and had to be taken to hospital in the morning. She lost a great deal of blood and her life may well have been in danger. It took the doctors at the hospital nearly six hours to discover that she had a wound in her vagina. She had to be given a blood transfusion. Finally the wound was discovered and sutured with three stitches.

Everyone must have sympathy for the girl in her most strange and unfortunate experience. But it is essential to be on guard against allowing feelings of sympathy or shock to sway one into thinking that the man's acts must have been criminal. Presiding at the trial, the Chief Justice recognised this. He saw that the evidence did not support criminal charges.

To deal with the costs question we should give some more of the history. A hospital doctor, thinking that the wound was very unusual and apparently that it could have been caused by an instrument, had referred the matter to the police, with the consent of the young woman. It is important to note that she made no complaint of being raped. However, in later signed statements taken from her by the police and in evidence at the trial she said in effect that the appellant had forced himself on her. The police interviewed him on 24 February 1981 and on the same day arrested him on charge of injuring by unlawful act: not on a charge of rape. The senior sergeant concerned said in cross-examination at the trial that he never really seriously considered charging the appellant with rape. Some considerable time later the police sent their file to senior counsel in Auckland. As a result, in May a charge of rape was laid against the appellant on counsel's advice. The police cannot, of course, be criticised for acting on such advice.

The trial began before the Chief Justice and a jury on 29 June 1981, Mr D. S. Morris of Auckland leading for the prosecution and Mr. M.A. Bungay of Wellington for the defence. The cross-examination of the prosecution witnesses was very effective. The young woman agreed that at one stage during the intercourse she was on top - for about five minutes, she thought - and the senior sergeant agreed that she had told the police this, and said that in omitting this detail from the typed declaration prepared for the Court proceedings and signed by her the police may have 'slipped up'. Medical witnesses called for the prosecution agreed, on being referred to medical research literature, that the wound could have been caused by penile penetration or possibly by a fingernail. They accepted that such an injury could happen accidentally, without any criminal conduct, to a woman who has recently had a baby.

In these and other respects the case against the appellant was so undermined that on the second day of the trial the Chief Justice understandably withdraw it from the jury and discharged him. The injuring charge was later withdrawn also.

The application for costs was dismissed on the same day on the grounds that the prosecution acted in good faith; that the charge had been properly laid on the evidence then available and properly investigated; that the evidence had been broken down as a result of probing at the hearing. Accordingly, in the discretion of the Court, costs were refused altogether. It is apparent that the Chief Justice did not have the opportunity that day of considering the costs question at all fully. It was because matters of principle arise which were not then considered that the Chief Justice and the other members of this Court granted leave to appeal.

Section 414(3) of the Crimes Act 1969 of the Cook Islands corresponds with s. 402(3) of the Crimes Act 1961 of New Zealand (now repealed and replaced by the Costs in Criminal Cases Act 1967); it provides:

Where any person is acquitted by the Court of any offence, the Court may order the prosecution to pay to that person such sum as it thinks just and reasonable towards the costs of his defence.

Thus there is unfettered statutory discretion. In deciding how to exercise it the Court should have regard, we think, to the general practice of criminal courts regarding the award of costs to successful defendants.

In this general practice there has been an evolution. The Crimes Act 1908 of New Zealand contained no power at all to award costs to an acquitted person. The power was introduced in the 1961 Act, following English legislation in 1952. Barrowc1ough C.J. stated with reference to it that '...in each good grounds must be shown for the exercise of that discretion in the applicant's favour'. He also indicated that the principle applied by the court of Criminal Appeal in England would be followed, and referred inter alia to a statement by the Lord Chief reported in 43 Cr.App.R. 219 which included the passage: 'Each case must be considered on its own facts as a whole and costs may and should be awarded in all cases where the Court thinks it right to do so'. In R. v Goffe [1963] NZPoliceLawRp 7; 1963 N.Z.L.R 620 Hutchison J., after quoting those statements, awarded costs to a defendant where the prosecution had been launched without adequate investigations and the evidence for the defence affirmatively proved that he was not guilty.

The New Zealand Act of 1967 has not been copied in the Cook Islands. It can be of help in the Cook Islands jurisdiction only by analogy and as evidence of a trend. Section 5(1) gives a discretion in the same terms, so far as material, as the old s.402(3); but subs. (2) lists in (a) to (g) particular matters to which the Court should have regard when appropriate, without limiting the discretion; subs (3) provides that there shall be no presumption for or against the granting of costs in any case; subs (4) provides that no defendant shall be granted costs by reason only of the fact that he has been acquitted; and subs. (5), which is the provision most relevant in a case like the present, provides that no defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.

The 1967 Act has been considered by the New Zealand Court of Appeal in at least two cases. In the J.B.L case, R. v Arnold and others (C.A. 109/77 etc; judgment 9 February 1979), the judgment was delivered by Richmond P. Factors given weight in that particular case were the exceptional length, complexity and difficulty of the proceedings; the degree to which individuals' application had had the benefit of legal aid; and the degree to which by their conduct they in effect brought the proceedings upon themselves. An award of $7000, which was very far from an indemnity, was made to each applicant. On the other hand in R. v Reed 1981 1 N.Z.L.R 524, where only the costs of an appeal were directly in issue, it was held that the defendant, although discharged by the Judge on a new trial, should not have an order for those costs. The strength of the crown case was regarded as an important factor there.

In the Supreme Court the 1967 Act and the authorities and practice statements were fully reviewed by Chilwell J. in R. v A.B. 1974 2 N.Z.L.R 425. The Judge refused any order, going as far as to say that the evidence available to the police was such that it would have been scandalous not to prosecute. In R. v CD. 1976 I N.Z.L.R 436 Somers J. made an award to the successful defendant of$150, being half the maximum available under the scale; the reduction was largely because the defendant had brought the charge on her own head.

The 1976 Act has also of course been considered in many unreported High and Supreme Court cases. Mr. Larsen drew our attention in argument especially to R. v Geiringer (Wellington T. 33/76; judgement 20 August 1976), where Beattie J. refused costs to a defendant acquitted by the jury of rape. The Judge expressly said that he did not regard the case as one where it was apparent that the evidence was so weak that the jury should acquit. He attached weight to the point that an acquittal may record the failure of the prosecution to establish guilt, not a vindication of innocence. Those points can have little weight in a case such as the present, where the presiding Judge has discharged the accused solely because of the weakness of the case against him. We note that Beattie J. did mention that from a perusal of unreported decisions it seemed that costs are rarely awarded. That may be correct in a statistical sense, but clearly there is at the present day no principle that an award to an acquitted defendant is to be seen as exceptional. We do not understand Beattie J. to have suggested otherwise.

At one stage in England it was said that the power should be reserved for exceptional cases - (1952) 36 Cr.App.R. 13 - but a more neutral approach is indicated by the practice note in (1959) 43 Cr.App.R. 13. The text of these notes will be found in the judgment of Chilwell J already cited. More recently in England the scales seem to have come to be weighted more in favour of acquitted defendants. The practice notes in 1977 1 All E.R 540 and 1973 2 All E.R. 592 indicate that the court will normally award such a defendant costs out of central funds unless there are positive reasons for making a different order. Examples given of positive reasons are where the prosecution has acted spitefully or without reasonable cause; here, it is said, the defendant's costs should be paid by the prosecutor. And where the defendant's own conduct has brought suspicion on himself and he has misled the prosecution into thinking that the cause against him is stronger than it really is; or where he has been acquitted merely on a procedural irregularity. In such cases it is said that he can properly be left to pay his own costs.

We return now to the present case. Mr Larsen rightly stressed that the decision under appeal was a discretionary one and that there are very familiar restrains on appellate review in such cases. However, as already mentioned, the initial consideration here was limited and leave to appeal was given for the very purpose of enabling some guidelines as to principles to be formulated.

This is a case of a defendant who has succeeded in demolishing the prosecution evidence at the trial. In principle, while the discretion is a wide one and must always be governed primarily by the facts of the particular case, it would be wrong in a case of this kind to refuse costs to a defendant merely because the charge has been properly laid and investigated. That is in effect specifically laid down in s. 5(5) of the 1967 New Zealand Act, and is in our view clear as a matter of principle at the present day quite apart from that Act. The strength of the prosecution case as finally tested at the trial and the reasons for the acquittal, if they are known or can safely be inferred, must be material factors and may be highly important. When a verdict has been taken from the jury it may not be possible to be sure about what has led to an acquittal; but that does not apply to this case.

In this case we have some reservations as to whether the charge of rape should ever have been laid. But we refrain from forming any final view on that pointed, partly in deference to the Chief Justice's comments when refusing costs. Also we repeat that the police took the advice of senior counsel in New Zealand, although we do not know precisely what information was placed before him.

Assuming, however, that the proceedings were properly brought and continued, it still has to be accepted that the charge failed because of real weakness in the evidence and not because of any technicality. The Chief Justice properly decided that in circumstances the case had to be withdrawn from the jury. We cannot avoid holding that if weight is given to the outcome of the case, as it should be, an order for some costs must be granted. It is right to add that Mr. Larsen accepted that the evidence did not disclose any callousness on the appellant's part after the incident. He drove the girl home, and evidently neither of them realised at the stage that she had a serious physical hurt.

With regard to the amount of an award, no scale is applicable in the Cook Islands. In this particular case, which was altogether out of the ordinary, it was reasonable for the defence to engage senior counsel from New Zealand. The prosecution likewise recognised that it was a case out of the ordinary, by engaging the Auckland Crown Prosecutor. The appellant should have at least his senior counsel's basic disbursements. The sum of$1231.45 is claimed for these, being a return air fare from New Zealand (about $860) and hotel accommodation for four days. In addition senior counsel is of course entitled to a proper fee from the appellant. The appellant has also incurred solicitors' costs and disbursements in Rarotonga assessed at $1250 (including disbursements of$31.80) and a medical bill of $220.

It would be rare to award a full indemnity. Indeed the section speaks of an award 'towards' the costs of the defence. In all the circumstances we think that the appellant should have a reasonable substantial but not a full allowance. For the reasons we have given the appeal will be allowed and the prosecution will be ordered to pay towards the costs of this defence the appellant's out-of-pocket expenses amounting to $1483.25, together with $750 as a contribution towards his counsel's and solicitors' fees - a total of $2233.25.

The Court emphasises that this particular award is certainly no precedent for ordinary criminal cases in the Cook Islands where acquittals may occur. Every case must of course be judged on its own facts in the light of the applicable principles.

R.B COOKE P.

Solicitors: Clarke Ingram & Co., Rarotonga, for Appellant
Crown Law Office, Rarotonga, for Respondent