Eyre v George [2012] CKHC 59; JPAppeal01.2012 (22 June 2012)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)
JP APPEAL 1/2012

IN THE MATTER
of Section 76(1) of the Judicature Act 1980-81

AND

IN THE MATTER
of an application to appeal a decision of a Justice of the Peace awarding costs to the Respondent

BETWEEN

PHILIP EYRE
of Rarotonga, Cook Islands, Tax Advisor
Appellant

AND

NORMAN GEORGE
of Rarotonga, Cook Islands
Respondent

Hearing: 22 June 2012

Counsel: Ms Henry for Appellant
Ms Rokoika for Respondent

Date: 22 June 2012

JUDGMENT OF THE COURT

[1] This is an application by Mr Eyre, a tax officer for the Cook Islands Government, for leave to appeal a decision made by a Justice of the Peace on 18 May 2012 awarding costs to the respondent in the circumstances later set out.

[2] On 14 March 2011 Mr Eyre issued four informations against Mr George alleging that, as an individual, he had failed to file tax returns for the years 2006 to 2009 inclusive. The informations were given numbers 791/11 to 794/11. They were based on s 206(1)(a) of the Income Tax Act 1997.

[3] The matter was apparently called on a number of occasions but it is with the hearing on 18 May 2012 that this appeal is concerned. Shortly prior to that date Mr Eyre - apparently on the prompting of the Chief Justice - filed four further informations against Mr George. They were dated 15 May 2012 and allocated numbers 435/12 to 438/12. Apart from those changes the only alteration in the form of the information was that it relied on ss 8 and 15(1)(a) in addition to s 206(1)(a).

[4] As an aside, it appears that since that time the collector has issued eight summonses against Norman George & Associates PC, also alleging that it failed to file annual returns for the years in question and failed to pay VAT. Apparently one of the central defences to the informations against Mr George personally will, when the matter gets to a hearing, be that it was his company and not he who had the obligation to file the annual returns and perhaps to pay the VAT.

[5] The second quartet of informations, those dated 15 May 2012, were lodged by the Crown to give Mr George the required amount of information so that he would be fully aware of the case he had to meet, and they were accordingly filed in substitution for the quartet of informations dated 14 March 2011.

[6] The matter came before a Justice of the Peace on 18 May 2012 and the transcript of that hearing - oddly headed in the Court of Appeal - sets out the discussion between counsel including an application by Ms Rokoika for Mr George for costs on the withdrawal of the four informations of 14 March 2011. At the conclusion of the hearing the transcript records the changes in information numbers and an adjournment to allow plea, and then says:

“And also submission for costs for the four cases that were withdrawn, requested by defence counsel $250 for each charge, so for each withdrawn case is granted.”

[7] The Crown has sought leave to appeal on the basis that in circumstances where all that had occurred was a substitution of one set of informations for an earlier set, with that substitution being to assist the defendant, the Justice of the Peace was wrong in principle to award costs.

[8] The Crown also takes the point that there are no reasons given in the Justice of the Peace’s decision other than can perhaps be inferred from counsel’s submissions and accordingly the decision is wrong on that basis as well.

[9] There can be no doubt the Crown is correct in the latter submissions. It has been made clear, for many years, that judicial officers are, other than in exceptional cases, bound to provide reasons for the decisions at which they arrive. In this jurisdiction, the reasons for that course of action were set out in Solicitor-General v Boaza (JP Appeal 2/2011, 27 May 2011), just over year ago, relying on the Court of Appeal’s observations in Lewis v Wilson & Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546.

[10] Although in the exigencies of no doubt a busy JP Court with a large number of cases it may be difficult for Justices to express the views backing the decision they reach with any great detail, they are nonetheless under an obligation at least to provide some indication of the reasons that led them to the view they take. That is necessary so that litigants know the reasons why they have succeeded or not as the case may be. It is necessary because the public is entitled to know those reasons (although for some reason the defendant’s name is suppressed in this case). And it is important because if cases are taken on appeal the Courts on appeal can consider the reasons outlined and decide whether they are correct in fact or in law and whether they justify the decision taken.

[11] In this case there are no reasons. There is no reason why there should not be any reasons, however brief they may have been. Even if they were no more than an adoption of Ms Rokoika’s submissions to the JP plus the reasons for so doing, at least there would be some foundation against which to assess the correctness or otherwise of the JP’s decision.

[12] So on that basis it is clear that leave should be granted to appeal and the appeal should be allowed.

[13] What then should be done about the case? There is power for the Court to remit the matter to the JPs Court for reconsideration and a reasoned decision on the costs application to be issued. But in the circumstances this matter, that seems needless and impractical.

[14] Both counsel agree that the Court can reconsider the matter afresh under s 46(2) of the Criminal Procedure Act 1980-81 and decide what the answer should have been in a JP Court.

[15] Adopting that approach in this case it is clear there should never have been an order for costs in Mr George’s favour at that stage of the proceedings. All that had happened was that one set of informations was substituted for an earlier set. They were identical in all effective particulars other than the addition of a couple of statutory references. The case was ongoing. The withdrawal and laying of further informations could in no sense be regarded as an adjudication on the merits, indeed the merits of the case against Mr George and his company still remain for ventilation at a defended hearing. This was a simple procedural step taken by the Crown at the instigation of the Chief Justice in order to confer some additional advantage on the defendant and it would be extraordinary if such a step were to be visited by an order for costs.

[16] That does not say, of course, that in due course when the case is finally dealt with than an order for costs covering the period during which the first quartet of informations was extant, might not be appropriate. There were apparently a number of adjournments which preceded the laying of the new set of informations. No doubt there are issues concerning the prosecution and the form of the informations which were ventilated in front of the JP Court on those occasions. It may turn out to be the case ultimately that Mr George is entitled to orders for costs including for the period up to 15 May 2012. But, as far as this appeal is concerned, the Court can see no justification for the awarding of costs on an everyday straightforward aspect of procedure, namely the substitution of one set of informations for another.

[17] The appeal is accordingly allowed and the orders for costs made in the JP Court on 18 May 2012 against the appellant and in favour of the respondent are set aside.

Hugh Williams J

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