Bishop v Crown [1996] CKCA 3; CR 455-457, 460-463 of 1994 (25 March 1996)

IN THE COURT OF APPEAL OF COOK ISLANDS
HELD AT AUCKLAND

C.R. NO. 455, 456, 457, 460, 461, 462, 463/94

BETWEEN:

TEKURA BISHOP
of Aitutaki, Tool Operator
Appellant

AND:

THE CROWN
Respondent

Coram: Sir Duncan McMullin (Presiding)
Hillyer, J.A.
McHugh, J.A.

Counsel: M.C. Mitchell for Appellant
T.P. Browne for Respondent

Date of Judgment: 25 March 1996

JUDGMENT OF THE COURT DELIVERED BY HILLYER, J.A.

Appellant pleaded guilty in the High Court of the Cook Islands at Rarotonga to five charges of forgery, one of false accounting and one of theft. He was sentenced to four years imprisonment on each of the forgery and false accounting charges and two years imprisonment on the theft charge, all terms to be concurrent. He appealed against the sentence and the matter came before this Court in Auckland. The appeal was allowed and a sentence of community service was imposed together with an order for restitution. The terms of imprisonment were vacated. Appellant now seeks costs against the Crown.

The principles were fully set out by McKay, J in Queen v. Kerr, Court of Appeal of New Zealand C.A. 70/91 in a judgment delivered on 15 April 1992. The same principles would apply in the Cook Islands. Basically the Court has a discretion in the matter but in each case good grounds must be shown for the exercise of that discretion in Appellant's favour.

Appellant was guilty of a number of serious offences. One of the reasons why the appeal was allowed was that information was put before us on behalf of Appellant that was not put before the learned Judge in the Court below. Details are set out in our previous judgment. We can see no reason why that information should not have been put before the Court in the Cook Islands. There are no special circumstances that we can see why costs would be allowed in this case.

Appellant's Counsel submits that Appellant has been put to substantial expense in relation to the hearing and the appeal but that was one of the reasons why Appellant's Counsel submitted that the term of imprisonment should be reduced. The application for costs is refused.

By the Court,
P.G. HILLYER, J.A.