Supreme Court New South Wales

• Medium Neutral Citation: V (a child) v Constable Joshua Hedges [2011] NSWSC 232
• Hearing dates: 17 March 2011
• Decision date: 30 March 2011
• Before: McCallum J

Decision

Application granted in part; order dismissing costs application in proceedings for offence against s 58 of the Crimes Act 1900 quashed; those proceedings remitted to the Children's Court for determination of the plaintiff's application for costs according to law.

• Catchwords: COSTS - criminal proceedings in the Children's Court - where charges withdrawn and dismissed - no prima facie case on one out of six charges - whether magistrate erred in dismissing costs application.
• Legislation Cited: Crimes Act 1900, s 58; Supreme Court Act 1970, s 69; Criminal Procedure Act 1986, ss 213, 214; Children (Criminal Proceedings) Act 1987, s 15A; Law Enforcement (Powers and Responsibilities) Act 2002, s 99(3)
• Cases Cited: Burns v Seagrave [2000] NSWSC 77; Canceri v Taylor (1994) 123 ALR 667 per Moore J at 676; Kanan v Australian Postal & Telecommunications Union [1992] 43 IR 257; May v O'Sullivan (1955) 92 CLR 654 at 658.6; R v Prasad (1979) 2 A Crim R 45
• Category: Principal judgment
• Parties: Plaintiff referred to as "V" (anonymity order made); Constable Joshua Hedges (first defendant); Magistrate Albert Sbrizzi (second defendant)
• Representation: Counsel: Mr B W Rayment QC with Ms P Conway (plaintiff); Ms A Johnson (first defendant); Submitting appearance filed on behalf of the second defendant; Solicitors: Emanueli Oliveri (plaintiff); IV Knight, Crown Solicitor (defendants)
• File Number(s): 2010/258938
• Publication restriction: The name of the plaintiff must not be published in connection with the proceedings below or these proceedings: see s 15A of the Children (Criminal Proceedings) Act 1987

Judgment

1 This is an application for judicial review arising out of criminal proceedings in the Children's Court. The plaintiff is a child who faced criminal charges in that Court. Section 15A(1) of the Children (Criminal Proceedings) Act 1987 prohibits the publication of his name in a way that connects him with those proceedings. In those circumstances, the Crown Solicitor invited the Court to make an order that the plaintiff be referred to (presumably only in connection with these proceedings) by the pseudonym "V". The plaintiff joined in that request. Accordingly, his name has not been used in this judgment.

2 The application relates to the learned magistrate's refusal to award the plaintiff his costs of the proceedings after six charges against him were withdrawn and dismissed. The plaintiff seeks an order pursuant to section 69 of the Supreme Court Act 1970 quashing the order dismissing the costs application.

3 It was conceded on behalf of the informant, Constable Hedges, that the magistrate erred in concluding that he had no jurisdiction to award costs in relation to one of the six charges. Constable Hedges contended that the matter should be remitted to the magistrate to determine the plaintiff's application for costs in relation to that charge according to law.

4 The plaintiff contended that he should have been awarded all of his costs below, which amounted to over $100,000. It was initially contended that this court should make an order determining those costs. However, senior counsel for the plaintiff acknowledged at the hearing that the appropriate course was for the proceedings to be remitted to the Children's Court. He submitted that the proceedings should be remitted to a differently constituted court for determination of the plaintiff's costs in respect of all of the charges.

The proceedings below

5 On 10 April 2009, police from Rose Bay Police Station saw a young male driving a sports car with no licence plates on New South Head Road. Constable Hedges watched as the car was driven into a car wash at a service station. He then lost sight of it for a few seconds. When he saw the car again, it had been parked and there was no one in the driver's seat. The plaintiff was at that point standing at the rear of the vehicle.

6 It was the prosecution case that the plaintiff was in due course placed under arrest but that, following a series of heated exchanges between police and various people at the service station, an adult male took the plaintiff by the arm and ran off. Police chased and caught them and succeeded in detaining the plaintiff on that occasion.

7 On the strength of those contentions, the plaintiff was charged with six offences: resisting an officer whilst in the execution of his duty, using an unregistered motor vehicle, failing as a learner driver to display "L" plates as required, using a vehicle that did not display number plates, refusing to produce his driver's licence and using an uninsured motor vehicle. The plaintiff pleaded not guilty to all charges.

8 After two separate days of hearing in the Children's Court, the proceedings were adjourned to enable the plaintiff to make submissions as to whether the prosecution had established a prima facie case. It was submitted on behalf of the plaintiff, among other things, that the offence of resisting an officer whilst in the execution of his duty (contrary to section 58 of the Crimes Act 1900) could not be proved because the purported arrest of the plaintiff had been unlawful.

9 Constable Hedges had given evidence that the only reason he arrested the plaintiff was to investigate the matter further. The plaintiff submitted that, in those circumstances, it was not necessary to arrest the plaintiff for any of the purposes identified in section 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 and that the arrest was accordingly unlawful. The question posed by the statute was, more precisely, whether Constable Hedges suspected on reasonable grounds that the arrest was necessary for any such purpose but in light of his frank concession as to his purpose in arresting the plaintiff, the application of the correct test would not have derogated from the force of the plaintiff's submission.

10 As to the traffic charges, it was submitted that the prosecution could not prove beyond reasonable doubt that the plaintiff was the driver of the car seen by police. The plaintiff's written submissions in support of that contention identified a series of alleged anomalies and inconsistencies in the police evidence as to the identity of the person whom they had observed to be the driver of the car whilst it was on a public road.

11 Shortly before the hearing was due to resume, police informed the plaintiff that all charges would be withdrawn. The plaintiff then made his application for costs, which was dismissed.

The magistrate's reasons for decision

12 The magistrate summarised the evidence that had been adduced during the hearing up to the point when police communicated the decision to withdraw the charges. His Honour noted the power of the Court to award costs in accordance with section 213 of the Criminal Procedure Act 1986, subject to the limitations imposed by section 214 of the Act.

13 Those sections provide:

213 When professional costs may be awarded to accused persons

(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.

(5) The order must specify the amount of professional costs payable.

214 Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003 .

14 The magistrate considered that, although the plaintiff relied upon section 214(1)(a) to (c), the relevant provision was section 214(1)(b) and that the critical question was whether the proceedings were initiated without reasonable cause.

15 The magistrate referred to the principles as to the meaning of the phrase "without reasonable cause" stated by Wilcox J in Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 and noted that the decision in that case was approved by the Industrial Relations Court in Canceri v Taylor (1994) 123 ALR 667 per Moore J at 676.

16 In Kanan, Wilcox J said (at 264):

But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that the proceeding lacks a reasonable cause.

17 The magistrate also referred to the decision of Simpson J in Burns v Seagrave [2000] NSWSC 77. In that case, her honour said (at [18]):

In the end, having considered what was alleged against the plaintiff, I am satisfied that it was capable in law of establishing a prima facie case and that it was therefore a matter for the magistrate to determine, firstly, whether it did in fact establish a prima facie case, and secondly whether it (if accepted) could or would have established beyond reasonable doubt that the plaintiff had committed the offence charged. Having regard to her findings of fact, the magistrate was never called upon to decide whether the conduct alleged by the police against the plaintiff did amount to that offence, because she was not satisfied beyond reasonable doubt that he had behaved specifically as alleged. It is, however, implicit in the finding that a prima facie case was made out, that, if proven, the conduct could have sustained the charge. That being so, I am not satisfied that the magistrate ought to have found, as a matter of law, that the proceedings were initiated without reasonable cause.

18 The magistrate applied the decision in Burns as authority for the proposition that if the Court is satisfied that there is a prima facie case, it cannot be found that the proceedings were instituted without reasonable cause within the meaning of section 214(1)(b).

19 Turning to consider whether the proceedings against the plaintiff had been commenced without reasonable cause, the magistrate accepted, as contended on behalf of the plaintiff, that the evidence of Constable Hedges disclosed no lawful basis for arresting the plaintiff. Section 99(3) of the Law Enforcement (Powers and Responsibilities) Act provides that a police officer must not arrest a person unless he or she suspects on reasonable grounds that the arrest is necessary for one of the purposes identified in the section. As already noted, the Constable Hedges had frankly conceded in cross-examination that the only reason he arrested the plaintiff was for the purpose of investigating the matter further. That is not a purpose identified in section 99(3).

20 Separately, the magistrate noted that arrest for that purpose is not authorised at common law. In those circumstances the magistrate accepted, correctly in my view, that Constable Hedges was not acting in the course of his duty at the time any resistance was offered by the plaintiff. Since that was an essential element of the offence, it followed that the prosecution could not establish a prima facie case in respect of that charge.

21 The magistrate stated, however, that his conclusion on that issue was not the end of the matter, since the plaintiff had also been charged with a number of traffic matters. As to those matters, his Honour found that the evidence of Constable Hedges established a prima facie case that the plaintiff was the driver of the car. On that premise, applying the decision of Simpson J in Burns , his Honour concluded that the proceedings were not instituted without reasonable cause.

22 Against the risk of error in that conclusion, his Honour proceeded to consider the application on an alternative basis, raised in the plaintiff's submissions, namely that the plaintiff might be entitled to his costs if it could be concluded that the charges were liable to be dismissed in accordance with the principles stated in R v Prasad (1979) 2 A Crim R 45. In that context his Honour considered the detailed submissions put on behalf of the plaintiff as to the alleged deficiencies in the police evidence.

23 The magistrate did not accept that the evidence of Constable Hedges so lacked weight or reliability that the Court could not safely find the offences proved. Indeed, his Honour recorded his assessment that Constable Hedges was honest and reliable, notwithstanding (or perhaps confirmed by) the fact that the officer had conceded a number of errors in his evidence.

Grounds for the present application

24 The grounds of the application as set out in the amended summons were to some extent overtaken by events at the hearing. The grounds in the summons were:

Upon the withdrawal and dismissal of proceedings for "resist arrest/hinder investigation" against the plaintiff by the defendant, and after finding that the plaintiff's arrest was unlawful and that there was no prima face case in respect of that charge and that the plaintiff was otherwise entitled to costs under s 214(1)(b) Criminal Procedure Act 1986, the learned magistrate made an error of law that appears on the face of the record of the proceedings in declining to award costs in respect of that charge such error being that the Magistrate took into account that he would have found a prima facie case in respect of other driving offences which were also withdrawn. Further the learned Magistrate ought to have found that the bringing of a charge of resist arrest where such arrest was unlawful constitutes other exceptional circumstances relating to the conduct of the proceedings within the meaning of s 214(1)(d) Criminal Procedure Act 1986.

25 As already noted, it was conceded on behalf of Constable Hedges that the magistrate erred in the first respect. It was implicit in the magistrate's decision that he regarded the six charges as collectively constituting the "proceedings" within the meaning of section 214(1)(b). His Honour did not entertain the possibility that an order could be made for a portion of those costs or for payment of the costs of defending the single charge as to which the terms of the section were satisfied.

26 I should note that the Crown Solicitor's submissions on that issue expressly characterised the finding that there was no prima facie case for the offence of resisting arrest as amounting to a decision that the charge was initiated without reasonable cause (written submissions, paragraph 1.2). The argument before me proceeded on that premise.

27 It was submitted on behalf of the plaintiff that, having reached that conclusion in respect of one offence, the magistrate ought to have undertaken some exercise of apportionment. Noting that the question of apportionment under section 214 does not appear to have been judicially considered previously, the Crown Solicitor provided comprehensive written submissions on that issue. It is the Crown Solicitor's careful analysis of that issue that appears ultimately to have prompted the concession to which I have already referred.

28 The critical issue is the meaning of the term "proceedings" in section 214. In my view, the Crown Solicitor is correct in submitting that the answer is to be found in section 172(1) of the Act. That section provides:

Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division.

29 In accordance with that section, each separate offence for which a person is prosecuted ought properly to be regarded as giving rise to separate criminal proceedings. In the present case, several offences were recited on a single court attendance notice. Presumably that is an expedient practice which reduces paperwork, and there may not be any particular vice in that approach, provided it is recognised that each offence prosecuted in that way generates separate proceedings.

30 On that analysis I accept, as submitted by the Crown Solicitor, that it was not a question in the present case of "apportionment" which arose for the magistrate's consideration. Rather, having found that there was no prima facie case for the offence under section 58 of the Crimes Act , the magistrate should have proceeded to consider the exercise of his discretion to order the prosecutor to pay costs in respect of the proceedings commenced for that offence in accordance with the provisions of section 213 of the Criminal Procedure Act .

31 As properly conceded on behalf of Constable Hedges, the proceedings should be remitted to the magistrate for that purpose.

32 As to the traffic offences, the plaintiff submitted that the magistrate erred in having regard to the decision of Simpson J in Burns . In that case, no decision had been made to discontinue the prosecution before the defendant gave evidence. The magistrate found that there was a prima facie case, and the matter continued. In the hearing before me, the plaintiff submitted that, had there been a decision to discontinue the proceedings in Burns , it would have been open to the defendant to make the very submission made in the present case (that the prosecution had no reasonable cause to institute the proceedings).

33 Conversely, however, where a decision is made by police to discontinue a prosecution, it nonetheless remains open to the police to submit that there was a prima facie case. A prosecutor's decision to discontinue a proceeding is not determinative of the assessment as to whether there is a prima facie case. That is a question of law properly determined by the court. Although it may be informed by a decision on the part of the prosecutor in an appropriate case, such a decision is not determinative.

34 In the present case, the magistrate gave careful consideration to that question. His Honour had regard to the principles stated in May v O'Sullivan (1955) 92 CLR 654 at 658.6 and asked himself the right question in accordance with those principles, namely, whether on the evidence as it stood the plaintiff could lawfully be convicted of the offences charged. His Honour further noted, correctly, that that is a question of law.

35 In my view, the evidence that had been adduced in the Crown case up to the point when the charges were withdrawn plainly satisfied that test. I can discern no error in his Honour's approach. In those circumstances, his Honour was correct to apply the decision of Simpson J in Burns , which in my view is plainly correct.

36 The plaintiff submitted that Burns is wrong or distinguishable at least to the extent that it ignores the possibility that there may be proceedings instituted without reasonable cause notwithstanding the existence of a prima facie case. Senior counsel for the plaintiff cited by way of example the instance of a case in which written statements accepted at their highest were capable in law of establishing an offence but were in fact based on deliberately false allegations. Without derogating from the ingenuity of that argument, I do not think it assists the plaintiff in the present case.

37 The magistrate's application of the decision in Burns proceeded in the present case from his Honour's assessment that the informant was an honest and reliable witness. That was a matter for his Honour's judgment at the time at which he was called upon to consider the plaintiff's costs application. It cannot be said that the court is precluded from reaching such a conclusion in the circumstances that arose in the present case simply because the defendant to the charges has not gone into evidence.

38 I do not consider it either necessary or appropriate to direct that the proceedings be remitted to a differently constituted court. The proceedings below appear to have been conducted fairly and courteously. I see no proper impediment to the matter's being remitted to be determined by the Children's Court as originally constituted.

39 For those reasons, I make the following orders:

(1) That the plaintiff be referred to in connection with these proceedings by the pseudonym "V".

(2) Pursuant to section 69 of the Supreme Court Act 1970, that the order of the Children's Court made 17 July 2010 dismissing the plaintiff's application for costs be quashed in so far as it related to the proceedings for the offence contrary to section 58 of the Crimes Act 1900.

(3) That the proceedings for the offence contrary to section 58 of the Crimes Act 1900 be remitted to the Children's Court for determination of the plaintiff's application for costs according to law.

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Decision last updated: 30 March 2011