Guidance on the relevant principles in awarding costs

The recent decision of Commissioner of Police v Apanui [2024] NZCA 307 has provided further guidance on the relevant principles in awarding costs under s 364 of the Criminal Procedure Act 2011 (CPA).

In November 2020, Mr Apanui was arrested and charged with arson after a fire broke out in his flat in Massey, and it was determined the fire was deliberate. He was remanded in custody. The case against Mr Apanui was based in part on Mr Apanui’s flatmate’s, Mr Sylva’s, evidence that he was in the bath at the time.

Due to delay by the Detective in charge of the Massey fire, swabs testing for ignitable fluids taken from the hands of Mr Apanui and Mr Sylva were not tested until June 2021. No residues were detected, but the report notes that may have been due to the delay in analysis.

Following the Massey fire, Mr Sylva moved into a house in Henderson. In February 2022, another suspicious fire started in Mr Sylva’s room. The Henderson fire investigation was ultimately closed after an inconclusive fire investigator report. The Detective in charge of the Henderson fire told the Detective in charge of the Massey fire that Mr Sylva was a suspect, though the conversation went unrecorded.

It was not until October 2022 that the Detective in charge of the Massey fire conducted a search inquiry which recorded Mr Sylva’s presence at both fires.

Mr Apanui’s charge was formally dismissed in November 2022, after the Crown advised it intended to offer no evidence, given its appreciation of Mr Sylva’s involvement in both fires.  The District Court made a costs order of $34,240.75 against the Commissioner.

The Commissioner accepted that the Police’s delayed disclosure of Mr Sylva’s possible involvement in the Henderson fire amounted to a significant procedural failure without reasonable excuse. While accepting that Mr Apanui should be awarded costs, the Commissioner challenged the quantum.

The Court of Appeal considered two issues; whether time spent in pre-trial detention is within the scope of a s 364 of the CPA costs order, and whether actual legal costs can be reimbursed.

Although the consequences of the Police failures were significant for Mr Apanui (continued detention in custody for nine months), which can relevantly be taken into account when assessing seriousness of the error, the assessment should not focus on the effect of the Police procedural failure on Mr Apanui. Costs under s 364 of the CPA are not compensatory.

The Court of Appeal reiterated that costs under s 364 of the CPA are penal; the principal purpose of a costs order is to denounce failures to comply with procedural obligations – here, delay in sending swabs for analysis and delayed disclosure.

Finally, the Court found that notional legal costs in preparing an application cannot be included in a s 364 order for costs. Costs under the CPA are not civil proceedings, in which costs follow the event.

Ultimately, the Commissioner was ordered to pay Mr Apanui $15,000 for the procedural failures in the investigations into the Massey fire.

Article written by Millie Quinn and Emma Ferrier