Turua v Henry-Anguna [2011] CKHC 61; CR219.2011 (27 July 2011)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
CR 219/11

BETWEEN

ANDREW TURUA
Informant

AND

CLAUDINE HENRY-ANGUNA
Defendant

Hearing: 26-27 July 2011

Counsel: Mrs T Browne for Informant
Mr T Elikana for Defendant

Judgment: 27 July 2011

JUDGMENT OF C NICHOLSON J

PROSECUTION

[1] Mr Turure, filed and prosecuteecuted an information charging Mrs Henry-a that between 11 Mar1 March 2011 and 13 April 2011 and thereafter did commit contempt of Court by disobeying orders made b Hight on 11 Marc;March 2011 in that ail failed to pay the costs of the Applicant out of thof the rental monies held in Court and continues to disobey the said order. The sections relating to the alleged offence as stated in the information were ss.36, 37 and 38 of the Judicature Act 1980-81.

[2] In opening the prosecution Mrs Browne said that aer had bead been made by Hingston J on 11 March 2011 terminatingleaselease the subject of the application and ordering that the costs of the Applicantaid out of rental monies held in Court. She said that the cthe costs of the Applicant amounted to $7,188.88.
That the essence of the Informant's case was that the Defendant has failed to pay that sum of $7,188.88 to the Applicants as ordered.

[3] The prosecution called one witness, the Informant, Mr Turua. At the clf the proseprosecution case Mr Ea applied for the Defendanendant to be discharged on three grounds. I asked for submissions on two of those grounds. The first ground was that the provisio s.36f the Judicature ture Act as relied on by the Informant didt did not apply because of the exception in that provision. The second ground was that there was not sufficient evidence to prove all the elements of the offence charged. I then heard submissions from counsel on the application and those grounds.

APPLICATION OF SECTION 36(a)

[4] Section 36 of the Judicature Act states:

"Every person is guilty of contempt of the Court who –

(a) disobeys any judgment or order of the Court or of any Judge thereof or of any Justice otherwise than by making default in the payment of money (other than a penalty) payable under such judgment or order."

The section then continues to state otcer acts of contempt of Court.

[5] Mrs Broubmitted that the provisrovisions of s.36(a) restriction did not apply in this case as that restriction related only to judgment debts. I consider that that is not so. The section itself not rto a judgment dent debt debt, it refers to the payment of money payable under such judgment or order. Also, as stated, the secti60;specifically states a sum of money payable not only under a judgment but also under an o an order.

[6] Mrs Browne albmitted that the pthe provisions of s.36(d) applied. That in context reads:

"Every person is guilty of contef Court who –

y any wany words or behaviour obstructs in any manner nner the proper and orderly administration of justice in the Court."

[7] This was the first time that it has ever been suggested to my knowledge that the offence related to other than a breach of s.36(a) and the words of the information are not consistent with an offence based upon s.36(d). They refer to failure to pay the costs as ordered. That clearly is an allegation based upon an alleged breach of s.36(a).

[8] Section 36(a) was considered by David Williams CJ in the case The of thof the Cook Islands Holdings Corporation v Tepaki Nooapii Tepaki, HCCI CR 141/2009 Misc#160;42/2008, 008, judgment delivered on 11 June 2010.
In paragraph&#160 24 of that judgmentChief Juef Justicustice said:

"I have no doubt that the Solicitor-Gener right in contending that that the governing provision is s.36 of the Judicature Act 1980-81 and that accordingly the exception relating to making default in the payment of the sum of money payable under a judgment from the definition of contempt means that this information must be dismissed."

At paragraph 39 he:

"The jude judgment of the Court is to strike out the information as being beyond the jurisdiction of the Court and to enter judgment for the defendant. His conviction and punishmor contempt is precluded byed by the exception in s.36(a) of the Judicature Act 1980-81."

[10] That provision of the Judicature Act was also considered by the Cook Islands Court of Appeal in the case Moore v Taakoka Island Villas Limited CA 6/09 18 June At paragraph&raph 9 the Court oeal said:

"There is no doubt the appellant was entitled to have the charge of contempt made agains dealh in accordance with the Criminal Procedure Act 1Act 1980-81 and that the common law approapproach (which the respondent sought to employ) is not available in this jurisdiction for an alleged contempt pursuant to s.36(a)."

It therefore decided that, in following the common law contempt provision, there was an error.

[11] The Court said at paragraph 13:

"It will will be for the respondent to decide whether it can start again employing the correct procedure. Irrespective of whether that occurs this appeal must succeed."

[12] It accordingly allowed the appeal and it was clearly implicit that, in doing so, it found that the provisions of s.36(a) for criminal liability did not apply because what was being sought was the enforcement of payment of a sum of money as previously ordered by the Court.

[13] Section 111 of the Criminal Procedure Act 1980-81 states:

"Power to discharge after committal for trial:

(b) the Judge may in his discretion at any stage of the trial, whether before or after his verdict, direct that the defendant be discharged."

[14] In my Judgment Number 4 in the prosecution of , CR 286-289/08 etc, that be cosa costs decision given in the criminal trial which was nly referred to as the "Operation Slush" trial, I considered the provisions of s.111 of thef the Criminal Procedure Act and the exercf that discretion accordingrding to Cook Islands law. I found that it differed from New Zealand ecause of differenterent statutory provisions and I will come back to that judgment in a moment.

[15] In my view, in the information which he swore andconsequent prosecution which he conducted, Mr Turua clua clearlyed on s.3n s.36(a) as the alleged basis of the charge of contempt of Court. In my view that section does not apply because of the stated exception that it did not apply to the making of dt in payment of money payabpayable under an order. Therefore, I decide that on this ground alone there should be an order that the Dent be discharged.

SUFFICIENCY OF EVIDENCE

[16] I refer back to my decision in Judgment Number 4 in the George trial wthat that was a ground upon which I decided to discharge the Defendants, Mr Vaile and Mr Ko. In that judgment I cand cand applied a passage from the judgment of the Judicial Committee of the Privy Council in Haw Tua Tau v Public Prosecutor2) AC That passage states:

"In their Loir Lordshirdships' view the same principle applies to criminal trials where the combined roles of the decider of law and decider of fact are vested in the single Judge (or in two Judges trying capital cases). At the conclusion of the prosecutor's case what has to be decided remains a question of law only. As decider of law the Judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking then, and then only, is he justified in finding that no case against the accused has been made out which, if unrebutted, would warrant his conviction within the meaning of s.188(1)."

[17] In this case the evidence consists solely of that of the Informant, Mr Turua, and in my view does not cover two essential elements of the offence. 1) That there was an order of the Court ordering the Defendant to pay money. The order itself, as alluded to in opening, did not go that far, but in any event the order itself was not proved. During the course of Mr Turua's evidence, when a copy of the Judge's note of that order was sought to be produced or referred to Mr Turua, I pointe that ordersrders of the Court needed to be proved formally, and that is done by the callinan Officer of the Court to t to produce the relevant Court file and the relevant order. Experience shows that simply producing a copy of an order of the Court can give an entirely inaccurate and misleading impression as there can be other aspects appearing on the Court file which may be relevant, so hence the practice of formal proof of a Court order. Despite my indicating that, the Informant did not call an Officer of the Court to produce the file and the copy of the Court document containing that order.

[18] Another aspect not proved was what the costs of the Applicant were, if any. The statement in opening was that they were $7,188. That was not proved in evidence. Therefore I find that on two essential elements there was not any evidence upon which there could be a conviction, and on this ground also the Defendant should be discharged.

RESULT

[19] I therefore discharge the Defendant on the charge against her in information CR 219/11. I find her notty ofty of the offence alleged.

COSTS

[20] Mr Eliapplies for costs, submisubmitting that an appropriate amount would be $2,320 plus $200 disbursements. He bases this upon the sum of $2,900 for the 14 and a half hours which he has spent in prtion and Court appearances nces on this matter, the hourly rate being $200. 80% of that $2,900 is $2,320.

[21] Mrs Browcepted that some costs osts are payable, but said that the amount claimed is extraordinary and excessive and stating that Mr&#16ua should not be penalised for taking proceedings in an attempt to satisfy an obligation toon to the landowners for payment of costs. She also submitted that the Defendant has incurred no actual costs as the services of the Crown Law Office and the Solicitor-General are not a cost to the Defendant, and also they are services which are included in the overall cost of running the Crown Law Office.

[22] Section 414(3) of the Cook Islands Crimes Act 1967 states:

"Where any person is acquitted by the Court of any offence the Court may order the prosecutor to pay to that person such sum as it thinks just and reasontowards the costs of his deis defence."

[23] I considered that provision at length in my Judgment Number 6 in the trial previously referred to of R v Norman George & Others I found that there were was a difference between Cook Islands law and New Zealand law, and in paph&#1ph 56 of my judgment I sait:

"In ordinary circumstancesrder for costs should be mabe made in favour of a Defendant against whom a prosecution has failed."

I then went on to state th/p>

"In deciding whng whether to grant costs and the amount of any costs granted the Court should have regard to all relevant circumstances and in particular where appropriate to nine factors."

[24] The first of these is whether the prosecution acted in good faith in bringing and continuing the proceedings. Having seen and heard Mr Turua, I have no hesitation in finding that in applying to terminate the lease he acted sincerely and in good faith in pursuing what he considered the interests of the owners of the big blockand in question. However, I consider that the action of a pf a prosecution of the Registrar of the Court alleging criminal contempt of Court as somewhat high-handed, precipitant and unjustified.

[25] The order was made by Hingston J on 11 Maris
a0;year and the infe information was laid just a little over one month later, on 13 April. Although it was not the subject idence documents provided by the Informant in disclosure reveal a rather threatening aing attituttitude in seeking payment of costs, and I bear in mind that the reaction of the Registrar was to say "I will give attention to the request for costs when I am satisfied that Mr Turua represents thers", an", and she sought such statement. She was clearly in an invidious position with relation to owners because, if the Land Court paid out costs from rental otherwise payable to owners who may have disagreed with Mr Tuructions and payment by t by them of costs, the Registrar would have been in a very difficult position indeed. Her request for sattion that Mr Turua in fact repred the owhe owners was not met. The Registrar was betwebetween a rock and a hard place in that situation. In that context to bring a criminal prosecution against her without exploring other avenues, particularly by having Hingston J clarify the issue and maee specific directions was, in my view, high-handed and precipitant, and could indeed be considered an abuse of the process of the Court.

[26] That is a circumstance which I take into account. Although actual costs were not paid by the Defendant the reality is that the Crown Law Office has spent considerable time on the matter and I consider that there be some recognition of this by payment of costs.

[27] I repeat, I am of the view that Mr Turua has acted it he consiconsiders to be the best interests of the owners throughout, so I will not penalise him by a heavy award of costs in tcircumstances. In the overall exercise of my discretion I order that he pay costs of $1,4501,450, that is half of the amount claimed plus disbursements of $200 plus Court costs of $30. I order that Mr Turua pay those costs t Defe Defendant.

INTERIM ORDER

[28] The final matter is the interim order made by Hugh Williams J on 3 Juns year whichwhich, as recorded in his Minute following the meeting with counsel in chambers said:

"In relati Mrs Browne's application (that is for interim orders) one of the complicating factorsctors in this issue is that there had been provisions made by the Court to landowners since 11 March 2011. Somehose will nill need to be taken into account and reconciled in the ultimate disposition of the case. It would be desirable that no further payment is made to complicate the issue further, and dingly there will be an ordn order that the registry (and that phrase is intended to apply to all officers of the registry) make no payments from the fund held for Uruau Section 74B2 Avarua pe resolution oion of the private information."

Then he went on to give leave to apply for variation in the case of hardship.

[29] Mr Elisubmits that the interimterim order made by Hugh Williams J has d with a dismissal ofal of the information and should be formally terminated by the Court stating that that is so.

[31] Mr Elikana submits that egal sgal situation is that, because of the provisions of s.492(4) of the Cook Islands Act 1950, the Court has no power to order that the rents not be paid to the persons now entitled to them.
[32] The interpretatiotation of that provision would have been the subject of considerable submission, I am sure, had this prosecution continued. My view, however, is that an order of the Court as to entitlement to rental payments is not an order which is set in legal concrete forever, and can be varied subsequently by an order of the Court. I am of that mind first because of the sheer common-sense and practicality of there being power to vary Court orders as to payment of rentals, and also particularly by the specific words of that subsection which says:

"All money so paid into the Land Court shall be paid out to the persons entitled thereto as determined by any order of the Court."

[33] I emphasise the word "any". That indicates that is what was intended, that the Court retain power to make further orders with relation to the money.

[34] It seems that the termination of lease application was brought in good faith for the benefit of all landowners and also was resistance of the application by the Cook Islands Government Property Corporation for an order that the lease be renewed, an application which the Corporation ultimately did not pursue. Therefore, the application has in my view been of benefit to all owners and it would seem only just that all of the costs of that application and resistance should be borne by the owners. If payments continue, the ability to seek reasonable and appropriate resolution of the costs issue will become further complicated and difficult, and consume a lot of time and money of the people involved.

[35] Therefore, in the overall interests of justice, I will make a fresh order that there be no payments by the Court from the fund held for Uruau Section 74B2 Avarua until further order of this Court. Any owner or owners who may suffer financial hardship by reason of this order can apply for it to be modified to allow payment to him or her. Th think, is the realistic way to avoid further difficulty inty in what has already become a difficult and complicated matter. It is over to the parties as to what the future steps are, but I hope good sense prevails and that there be resolution by agreement of owners, recognising the benefit to them that has arisen from Mr Turua's actions and the fairness of costs of those actions being met. However, that is over to the parties, I can take the matter no further.

C Nichol

Editorial Note: Derived from from the Court’s electronic records and believed to be correct and final.