An Auckland man has been awarded $175,000 in costs after the failed prosecution over his son's alleged manslaughter.

In describing the case as "unusual", Justice Cheryl Gwyn lambasted the Crown case, which she said caused significant delays in providing disclosure to the defence counsel.

The man's son died in December 2017, from what the Crown alleged as being blunt-force trauma.

However, the father - who was put under surveillance by police - defended it on the basis that it was from the 11-month-old suffering a fall, either kneeling, standing against a couch or on top of that couch.


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The trial began on November 4, 2019, however in Justice Gwyn's High Court decision it was revealed the defence were still receiving disclosure not only in the days, weeks and months leading up to the trial but also during the trial itself.

Eventually, after three days' deliberation, the jury was discharged on the basis they were unable to make a decision.

In February this year, the Crown advised the court it would not be seeking a retrial and offered no evidence in further support of the charge.

The charge was dismissed against the defendant, who has permanent name suppression, by Justice Moore on February 20.

The man, through his lawyer Katie Hogan, then pursued costs totalling $249,562.40.

Of the $175,000, Justice Gywn ordered the police to pay $30,000 while the further $145,000 was for the defendant's costs in his case, totalling about 70 per cent of the man's overall costs.

Hogan provided detailed correspondence between the Crown and the court.


She submitted that there were instances where the police or Crown provided relevant material only after she specifically asked for it.

There were delays in responding to her requests, particularly in regards to medical records and images.

The Crown also initially refused to disclose any information from its own expert witnesses in response to defence expert reports before limiting its refusal to records of information kept by the counsel.

On the first day of the trial, the Crown disclosed evidence regarding expert witnesses.

However, four days later, during the trial, 27 pages of the notebook of the senior officer in charge was handed over.

Then a further three days later, on November 11, more than 100 pages of evidence was disclosed.

Later that day, the Crown counsel advised that further evidence - about 120 pages - would also be coming. That led to the ceasing of evidence being given and the jury being sent home early for the day.

The defendant was awarded a total of $175,000 in costs; $30,000 of which are to come from the police. Photo / File
The defendant was awarded a total of $175,000 in costs; $30,000 of which are to come from the police. Photo / File

Hogan submitted that the late disclosure included "highly relevant material which was used in the defence case" and impeded the trial process.

That contributed to the significant amount of costs being sought and the breach being so serious.

Counsel for the Crown in the appeal agreed that an award for costs should be granted but it should be lower.

It blamed the Auckland DHB for the disclosure delays relating to medical imaging as it wasn't on the police file and had to be requested.

Once it was, it was then "slowed" due to getting it from the DHB.

The Crown submitted that the "majority" of correspondence was disclosed on October 31 and had only been generated the week prior and handed over as quickly as possible.

In her decision, Justice Gwyn found the delays were "significant".

She said the not-guilty plea was known to both parties a year beforehand.

"Against that timeframe it is no answer for the Crown to say that disclosure delays relating to medical imaging, RETCAM and neuroimaging information resulted from the need for police to obtain that information from the ADHB.

"The disclosure obligations sit with the Crown, not a third party such as the ADHB.

"It was the responsibility of the Crown to actively acquire all the relevant information it would need ... it did not meet its obligations by sitting back and waiting until information was requested by the defence."

Justice Gwyn said the failure to disclose surveillance information until August-September 2019 was similarly "inexcusable".