Moore v Lyon [2010] CKHC 25; CR 961 of 2010 (10 December 2010)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NO. 961/2010

BETWEEN

TRAVIS MOORE
Informant

AND

ROGER WILLIAM LYON
Defendant

CR NO. 962/2010

BETWEEN

TRAVIS MOORE
Informant

AND

ROGER WILLIAM LYON
Defendant

CR NO. 966/2010

BETWEEN

TRAVIS MOORE
Informant

AND

VERNON KEITH CLARK
Defendant

Hearing: 2 December 2010

Counsel: Mr Travis Moore, Informant in person
Ms Sarah Inder for Defendants

Judgment: 10 December 2010

JUDGMENT OF GRICE J
(i) Application for leave to withdraw charges;
(ii) Application for costs

T Moore,
S Inder, Browne Harvey & Associates, Avarua, Rarotonga

[1] The above charges relate to private prosecutions brought by the Informant against Mr Lyon for breach of s 17 of the Devent Investmenttment Act (CRN 961); for breach of Ss&#160 24 and the Development andt and Investment Act (CRN 962/2010); and agaMr Clark lark under Ss 25 and 37he Development Invt Investment Act (CRN 966/2010) Info has sought leaveleave to withdraw these charges. The DefenDefendants do not oppose that application but seek costs.

[2] Initiall#160;Moore brought eleven cven charges under the Development Investment Act ("DIA") against Mr Lnd Mr Clark and otherother Defen.ants. These charges were related. The charges were first called on 11 December 2008. Mr
ka;Vaabure then then aed fo Informant and Ms Rokoika for all Defendants.ants. The Court file indicates that therethere were issues with service to be resolThe Cal Decision sheet on the Court file reads "Informnformant aant advises that Crown Law will be taking over the prosecution of these charges." Matters were adjourned to 12 February 2009 for callover.
[3]> [3] The following narrative of the callover of these charges is taken from the notes on the Court file. On 12 Februar0;2009 disclosure ware was ordered and the matters werourne23 Ap16l 2000;2009. They They appear to have been in the List again on 5 March 2009 when they were aded toed to 30;Jul0;2009. It appearppears the Informations became separated and various Informations were cale called on various dates. On 30 April&#169 thet filords thas that there was to be a memo dated ated 23&#123 April 2o be sent to the Chie Chief Justice in accordance with Rule;79 of the Code of Civil Procedure 19t is also recorded that "hat "Counsel to file wrie written application to serve outside jurtion." Mr Vakalalabureabure appeared for the Informant and Ms Rokoikathe Defendants. That That callover did not include the present charges (CR Nos 961, 962 and 966).

[4] The Court file notes that on 12 November 2009 eight of the Informations, the chaexcluding the present threethree, were dismissed for want of prosecution. There was no appearance for the Informant. Costs are recorded as being awarded on those matters against the Informant for the sum of $500. The present three charges were again called on 4 December 2009 when they were adjourned to 29 April 20d a mndumandum was receiveceived from the Informant, Travis Moore. On 29 April 2010 they were again aned tned to 3 June 2010 and there further adjo adjourned to 29 July&#160, ann to 19 August 20st 2010 wi10 with a note by the Court that the "Registrar to respond to Defendants' memorandum of November 2008." On 19 A&#160, theer was was call callecalled in Chambers with Mr Moore and Ms Ro present. The matters wers were adjourned to a date to be fby the Registrar for trial.

[5] Chief Justice Weston issued a Minute of 4 Nov0;November&#160 dealing ling with procedureps. He also commented (at (at [2]) that it was not immediately clear to him that the provisions of the Act could be enforced by wayrivate prosecution. He expressed no view on that but noted oted that if the matter was to proceed the Court would need to be satisfied that it did have such jurisdiction. The Chief Justice recorded that issues had been taken about service and there had been a referral to the then Chief Justice under s 106 of the Criminocedure Acre Act, but it was unclear as to whether the file was referred to the Chief Justice. It seems not.

[6] The Chief Justice in his Minute dated 29 April 2010 records leave was to n to Mr MooreMoore to refer the dismissal of the other charges to the Chief Justice. Chief Justice Weston comments thats notr about the basis on which that occurred and he doubted the reference had any proy proper lper legal basis.

[7] The Chief Justice refers to a "complete procedural tangle". He notes there is an extant Order of the Court dismissing the eight charges. The three remaining Informations could not proceed to trial as Mr Lyon had not been properly served, and the exact status of claim against Mr Clark was unclehe Chief Jusf Justice directed all the various procedural matters be brought before me at titting, and any further written applications should be made made in sufficient time for them to be considered at this sitting. He indicated that the issues raised by Mrs Browne on 13 November shoulheae heard, and that what while none of the Informations should be tried at this time all interlocutory matters should be resolved and a future course plotted.

[8] Mr Moore nded moranated 4 ed 4 NovemNovember 2ber 2010 advising that the Business Trade Investment Board ("BTIB") had filed several Informations alleging breaches of the DIA against the same Defendants and, therefore, he was seeking leave to withdraw the Informations presently before the Court. By Minute (No. 2) dated 8 November 2010, the Chief Justice noted there was a related matter in connection with search warrants by the BTIB which should be brought before me at this sitting to be dealt with at the same time. The matter has come before me this week and has been dealt with.

[9] Ms Inder, appearing for all tfe Defendants, indicated that she sought that all issues of costs be resolved today together with the withdrawal application. She indicated that Mr Brett M, whobeen counsel inel instructed for some or all of the Dehe Defendants, would not be filing any further applications for costs, whid apparently been an earlier suggestion. I note the Chief Justice's comment that Taakoka Iska Island Villas Limited would be entitled to be heard on the question of costs if it so desired. It seems its opportunity to be heard has passed. The charges against Taakoka Island Villas Limited were dismissed on 12 November 2009 and costs were awarded against the Informant for the sum of $500 on that date.

[10] The present application for withdrawal and cross-application for costs relates only to the three charges which are left. These are against Messrs Lyon and Clark. I proceed on the indication from Ms Inder that no further applocation for costs in relation to the various Defendants or charges will be pursued.

[11] I now deal with the applicatio costs in relation to the withdrawal of the three remaining charges.

[12] Ms InderInder filed written submissions in relation to costs on 26 November 2Mr Moore inde indicated he only received the submissions on Tuesday of this week. Mr Moore sought the applicatiocation be delayed pending a timetable being put in place and written submissions being exchanged between thties.
[13] I indicindicated I could see no reason for the delay. I refused the application fion for adjournment. It was Mr Moore'lication to withdraw draw and the application for costs was consequent upon that. I, however, stood down the matter for what becwo hours to enable Mr Moore to consider Ms Inder's written and oubmissbmissions. This This stand down period occurred after Ms Ihad made her oral submissimissions in support of her written submissions to the Court. Mr Moore had also filed written submns (wsought the timetaimetable) and subsequently made comprehensive oral submissions on the cost costs matter.

[14] This is an application in relation to only three charges. The other charges have been dismissed and costs in relation to those charges dealt with. Mr Moore indicated he had not yet paid the costs but was intending to do so. He had delayed only because he was awaiting his referral to the Chief Justice to be dealt with. He has indicated he will be making payment now.

[15] Ms Inder'sissions sought costscosts on a solicitor/client indemnity basis. The amount sought was $3,712.50. No bill of costs was initiallyuced to support that claim. In the course of the hearing Ms Indeduced and provideovidedvided to the Court and Mr Moore two billsosts. The fihe first marked Tax Invoice 01784 headed "Bill from July to 8 November 2010" tooka Island Villastelasted Cith Clark for ther the sum of $3,937.50 (including VAT). This was for 17.5 hours at $200.0000.00 per hour. When it was pointed out thnumbethe attendances appeared to be unrelated to thesethese part particular proceedings, but rather related to matters such as Travis Moore's contempt appeal costs issue and a number of other matters, Ms Inder indicated that the faim for $3,712.50 was discounted to take into account those matters. Subsequently she produced a substitute invoice to Taakoka Island Villas Limited C/- Roger dated 24 November 2010, wi tax invoice numb numb number, for the sum of $3,712.50. The narration to this account was headed "Re Travis Moore Prosecutions". The narration to this account also appeared to refer to matters other than this application, including making submissions for the dismissal of Informations on 12 Ner 2009. Both copies pies of bills of costs were provided to Mr Moore for his comment. He took issue with the bill of costs and questioned whether it related in its entirety to the presenceedibr>
[16] Ms&] Ms Inder poino s 92 of thof thof the Judicature Act 1980-81 as giving the Couwi a wide discretion to make such Orders as it thinks just for the payment of costs. The section provides as follows:

92. Costs ject is Act and to theo the provisions of the Crimes Act 1960;1969, tgh Court shall hall have the power to make such order as it thinks just for the payment of the costs of any proceedings by or to any party thereto. Such costs shall be in the discretion of thet, and may, if the Court thrt thinks fit, be ordered to be charged upon or paid out of any fund or estate before the Court.

She submitted that s 414he Crimes Act was not apot applicable. Section 414 deals with con cases whes where any person is convicted or is acquitted of any offence. I accept s 414 is notvant because ther there was no conviction or acquittal.

[17] I pointed out the provisions of s 46 o Criminal Procedure Acte Act which relates to withdrawals of Informations by Informants. Ms Inden submitted that s&#160 46 was aable. Section 46 de46 des:

46. Withdrawal of informati info
    

(1) Any informationation may by leave of the Court be withdrawn by the informant at any time before the defendant has been convicted or the information has been dismissed or, in any case where the defendant has pleaded guilty, before he has been sentenced or otherwise dealt with.

(2) On the withdrawal of an information the Court may award to the defendant such costs as it thinks reasonable, and any costs awarded may be recovered as if the costs were awarded on a conviction.

(3) The withdrawal of an information shall note operate as a bar to any further or other proceedings against the defendant in respect of the same offence.

Ms Inder submitted that threctrrect question for the Court is:

Whether the prosecution was reasonably and properly bought and pursued.

She refers to a Judgment of the Justice in a related matter (Taakoka Island Villas Limi Limited v Moore.[1])

[18] The Chief Justice in that Judgment noted that the standard "whether the prosecution was reasonably and properly brought and pursued" was taken from the Costs in Criminal Cases Act (NZ). This has no equivalent in the Cook Islands legislation except for s 414(3) o Crimes Act, which hich deals with post-conviction acquittal and costs. The Court then may order costs "and such sum as it thinks just and reasonable". His Honour went on to say that in the Co inherent jurisdiction it w it would seem that he did have jurisdiction to award costs if he thought appropriate. The Chief Justice (at [32]) indicates that in that case he was dealing with a criminal prosecution which failed because the wrong procedure for prosecuting was used. This case differs in that costs may specifically be awarded where a charge is withdrawn under s 46 of thminal Procedure Acte Act.

[19] Section 46(2) provides the Court mart may award to the Defendant such costs as it t reasonable. There is no further statutory guidance. I will therefore proceed on the basis asis of the statutory provision under s&#1(2). Ordinarily in civil pril proceedings costs follow the event. However, in criminal proceedings, for public policy reasons, costs awards should not automatically follow the event.

[20] Mr Moore in his oral submis inns indicated his understanding was that costs were allowed by s 46, and the basis of that costs award was the conduct of the parties in the trial. He sued that since there had been no trial and it was the failinailing of the Defendants and the Court that it never came to hearing, thisld be taken into account.
[21] Mr Moore also indicthat he oppe opposed the application for costs on the basis of the conduct of the Defendants and the Registry and that negated any liability for him to pay costs. I do not accept this submissir Moore brought the prhe prosecutions and it was up to him to pursue them.

[22] Ms Indemitted that the matterstters which should be taken into account in making an award of costs were the matters set out in Mrs Brow(previous counsel) subo subons which related to:

1. service on a r of the Defendants including Messrs Lyon and Clark had notd not been properly (or at all) effected;
   
2. Mr Moad no locus standi to brio bring his prosecutions before the Court;
   

100. the Criminal Divisf the High Court did not haot have jurisdiction to deal with Mr Moore's private prosecutions; and
     

4. Mr Moore's Informations laid waid with an ulteriorve and an abuse of Court process.
   

[23] I23] I deal with each of those matters.

Service not properly effected

[24] Service of the summonses must be served on specified persons under s 2the Criminal Procedure Acte Act 1980-81. Apparently the summonses were not initially served in accordance with those provis Service was somewhat later rectified by Mr Moore.

[25] Thiviservice issue wsue was the subject of some argument and as to be one of the matters ters referred to the Chief Justice for further review. It seems from notes on the Court file that Mr alabur the Informant aant aant argued that service could be by anyone in the case of a private prosecution, and that in any event coufor the Defendants was in Court that day. It appears at that stage service had not been effn effected by the persons referred to in s 26 of the Criminal Procedute Act. Section 3 of that Act prs that the the Criminal Procedure Act applies to all proceedings in the Court where a person is proceeded against for an offence. The present charges fall within the definition of 'offence' us 2 of that Act where here 'offence' is defined as:

'Offence' means any act or omission for which under any enactment any person can be punished other than solely by means of a civil proceeding.

[26] The charges are brought under various provisions of the Development Investment Act. The first, CRN 961, is under s 17 of the Act. CRN s under nder Ss 24 and 37 of the and CRN 96RN 966, pursuant to Ss 25 and 37 of the Act. Section 17 provides for an offence and liability on conviction of a fine not exceeding $2.00 afurther fine of $ of $1,000.00. That provision prohibits a ts a foreign enterprise carrying on business in the Cook Islands unless the entse is registered pursuant tant to the Act to carry on business in respect of that activity. Section 24 prohibits the transfer of shares or interests in shares without the approval of the Board. That section does not refer to a specific offence. Section 37,ver, provides that every person who acts in contravention of the Act for which no offence ince is provided for elsewhere in the Act commits an offence and is liable on conviction to a fine not exceeding $2,000.00.

[27] CRN 966 (Mr Clark) refers to160;23 and and 37 of the DIA. Section 23 prohibits a foreign enterprise from carrying on business in the Cook Islands after revon of registration in respect of the business activity has taken effect, except to wind up d up its affairs and s 37 is the geneenalty provisrovision.

[28] Counsel were unable to point me to any statutory provision which prohibited private prosecu or required an application for leave to commence prosecutions under the DIA.

[29] [29] Therefore, the DIA clearly does provide for offences rather than just civil proceedings or remedies. Therefore, the DIA offences fall within the definition of 'offence' in s 2 of the Criminaledure Act. Act. The provisions as to service requirements set out in s 26 of the Criminal Procedcte Act must apply.

[30] I conclude that the summons and any other documents required to be served on the Defendants mu served by the persons set out in s 26. This was clearly not the case for a reasonablynably substantial time after the proceedings were first issued. This was later rectified by Mr Moore.
ockquote>

L>Locus standi

[31] Ms Indinted to s 10 of thof the Crimeswhich hich states:

S 10 Construction of other Acts

(1) Every Act shall be read and construed as if any offence therentionr which the offenoffender may be prosecuted by information tion (however the offence may be therein described or referred to) were described or referred to as a crime; and all provisions of this Act relating to crimes generally shall apply to every such offence.

(2) Every commission, Proclamation, warrant, or other document relating to criminal procedure in which offences that are crimes as defined by this Act are described or referred to by any names whatever shall be read and construed as if those offences were therein described and referred to as crimes.

As the DIA does not specifically refer to requiring prosecution by Information then the offences under the DIA cannot be prosecuted under the Crimes Act. Thus any alleged breach of that Act does not constitute a crime under the Crimes Act. She submitted that the references in the DIA to the term "offence" is in the ordinary sense and not as defined under the Crimes Act. Therefore, she submitted the present proceedings are civil matters relating to alleged breaches of the DIA and to be dealt with in the Civil Division of the High Court.

[32] I am not sure that this argument takes the matter any further. Even if the charges were not subject to the Crimes Act, it appears the Criminal Procedure Act would apply to them. Section 3 of the Cri Procedure Act Act states that Act applies to all proceedings in the Court where a person is proceeded against for an offence. efinition of an offence, as I have set out above, includes any act or omission where the pehe person can be punished other than solely by means of a civil proceeding. Pursuant to s 11 of the Cal Procedure Acte Act any person may lay an Information:

11. Any person may lay an iation –
    

(1) subject to sub-section (2) of this section, and except where expressly otherwise so provided by any enactment, any person who has reasonable cause to suspect that an offence has been committed may lay an information for that offence.

(2) Every prosecution for an offence against the Customs Act 1hall be commenced by an inan information laid by a Collector of Customs.

[33] Ms Indso argued, in her writteritten submissions, that the Development Investment Board (Business Trade Investment Board as it now called) was the only Body with the standing to prosecute under that She submitted that the Boae Board is "specifically constituted under that Act to carry out that Act's purpose and to monitor and ensure compliance where appropriate" (para 16 of the Memorandu Defendafendants dated 25 November 2010). In her oral submissions she amended that submission, indicating that there was nowhere in the Act that specifically required the Board only to "e compe", but the genergeneral tenor of the legislation as set out in Ss 15 and 16 (objectivectives and functions of the Board) indicated that the Board was the Body to administer the legislation. This precluded a private prosecution.

[34] There is no pion counsel could point me to which provides that only the the Board could bring a prosecution under the DIA. Private prosecutions are rare but not unknown. They are likely to be brought where there is a concern that the Crown is improperly refusing to act. This seems applicable equally to the DIA.

Vexatious prosecutions – civil proceedings

[35] The Defendants submit that there were outstanding civil proceedings covering the same issues in the High Court that had not been disposed of and, therefore, the offences should not have been brought. The subject matter of the civil proceedings related to repair work, letting apartments for tourist purposes, receipt of the funds by the company from third parties and other issues which were the subject of proceedings in the High Court heard in November 2008. In her submissions Ms Indsts three sets of relevaelevant proceedings:

1. OA4/05 – appeals from original relief against forfeiture application;
   
2. OA1/08 – the second relief against forfeiture applications; and
   

100. MISC 1/08 – application for reinstatement of a company to the Register.
     

[36] Counsel's submission is that:

Mr Moore's Intions were vexatiexatious and initiated by him with an ulterior purpose, namely to delay the Court's orderly disposition of the relief against forfeiture application.

The submission goes on to state that this mirrored Mr Moore's strategy in opp theg the company's application to be reinstated to the Companies Register, and raising the same issues repeatedly even after they were considered and dismissed by the Court. This strategy, it is submitted, is an abuse of Court process.

[37] The submissions then go on to provide a timeline of the progress of these charges commencing on 13 Nov 2008 down to the pthe present time. And also lists a total of six memoranda filed by Mr Moore ao memoranda filed byed by counsel for the Defendants.

[38] Counsel for the Defendants, however, does confirm that ber ose appearances anes and memoranda related to other matters or charges, including steps take taken to attempt to reinstate by way of reference to the Chief Justice the eight Informations dismissed on 12 November 2009.

CoConclusion

[39] In summary, I find that:

1. Service of the charges was initially not properly effected and, at least in relation to Mr Lyon, and it appears s not not properly served as late as the date of the Chief Justice's memorandum of 4 November 2010 (at [30]). It is unclear exactly when service was effected. However, there was a failure to effect proper service in a timely manner.
   
2. Locus standi. This matter has not been the subject of detailed analysis or argument in this case. For the purposes of this application I find that Mr Moore was pted to bring prig private prosecutions under the DIA. This is in the absence of any provision in the Act that prohibits anyone othan the Board enforcing the offence provisions of the Act. Similarly, the Criminal Proceduocedure Act allows any person who has reasonable cause to suspect an offence has been committed to lay an Information for that offence. Counsel accepted s 46 of thatrelating to withdwithdrawal of Informations applied to the situation and gives the Court power to award a Defendant such costs athinks reasonable.
   

100. Abuse of Court process. The matters upon which the charges are based have been the subject of extensive litigation in the High Court. Section 139 of the Criminal Procedure Act itself provides that no civil remedy for any act or omission shall be suspended by reason that such act or omission amounts to an offence. Therefore, it does not immediately follow that the filing of civil proceedings as well as criminal proceedings will amount to abuse of process. No evidence was filed in relation to this costs application and while there are a number of memoranda, including that of the Chief Justice, which indicate there were several sets of proceedings which have taken up substantial amounts of time in this Court, I do not conclude that these proceedings were an abuse of the Court's process.
     

[40] These charges have been called in Court on a number of occasions. It is difficult to say exactly how much time was required by the Court and the Defendants to deal with these particular charges. Mr Mooreonds to that by sayingaying that it was the fault of the Court and the Defendants (particularly Mrs Browne's application) wis the reason the matters were not dealt with sooner. The matters were certainly not dealt ealt with very expeditiously. However, as e said, it is up to the Informant to prosecute these matters. It seems Mr Moore attempttempted tloy sloy some processes, such as a reference to the Chief Justice, which were not correct procedures. The memorandum of 6 August Mr Moore preparrepare lodged, related to an attempt to reinstate the eight proseprosecutions which had been dismissed in November 2009, not these charges.e wasrther memorandum on 13 November&2008 wh08 which rech related to Mrs Browne's appl application which was referred to the Chief Justice and appears never to have been resolved. I have my doubts, as does the Chief Justice, as to whether that procedure was cor

[41] All of those matters took up time, and whilewhile a number of them were not specifically in relation to these charges I conclude that a substantial amount of Court and Defendants' time has been taken up with these matters being called and dealt with.

[42] I do not accept that all matters the subject of the bill of costs produced on behalf of the Defendants for $3,712.50 only related to these matters as I have noted above.

[43] I can do no more than make a reasonable general assessment of the time involved in the circumstances. As I indicated to the parties I propose to award costs pursuant to s 46 o Criminal Procedure Acte Act. I approach the exercise of my discretion in setting the amount of those costs, bearing in mind thaore stringent test for the award of costs in criminal proceedings should be applied than than those in civil proceedings and there is not a general presumption that costs follow the event.

[44] However, on the basis that the Informant seeks to withdraw these proceedings after they have been extant for some two years; that the sum of $500 was awarded when the eight charges were withdrawn in November 2009t the procedural tangleangle has been such that the Defendants have been put to time and expense dealing with these matters and for the reasons listed above:

• I award costs to the Defendants on each of the three charges in the sum of $250.00.
  
• I fix the sum of $100.00 for Court costs on each of the charges payable to the Criminal Division of the High Court pursuant to Regulation 6 of the High Coues Costs asts and Allowances Regulations 2005.
  

Grice J

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^[1] Taakoka Island Villas Li v Moore OA1/2008 WestoWeston CJ, 22 October 2010.