Barr v Broomby

Supreme Court of NSW|2014-10-30|Before: Rothman J, Commission J

cond Defendant) Representation: Counsel: A. Joseph (Plaintiff) B. K. Baker (Solicitor Advocate) (First Defendant) Solicitors: Lindeman Lawyers (Plaintiff) Crown Solicitor's Office (First and Second Defendant) File Number(s): 2014/65429 Publication restriction: None Decision under appeal Date of Decision: 2013-11-29 00:00:00 Before: Magistrate Hodgson File Number(s): 2013/49967

Background facts 3On 18 February 2013, the first defendant, Detective Senior Constable Richard Broomby, charged the plaintiff, Paul Andrew Barr, with an offence of committing an act of indecency contrary to s 61N(2) of the Crimes Act 1900. It was alleged that the plaintiff indecently assaulted the complainant between 9pm and 9:30pm on 13 January 2013 at the Beach House Bar and Grill in Port Macquarie (the Beach House). The plaintiff subsequently entered a plea of not guilty to the charge and the proceedings were listed before Magistrate Hodgson in the Local Court at Port Macquarie on 29 November 2013. 4It was acknowledged by both parties, as well as the learned magistrate, that there were significant inconsistencies in the version of events depicted in the CCTV footage and that described by the complainant in the evidence she gave during examination in court. There were also inconsistencies between the complainant's statement to police and the evidence she provided in court. However, for the purposes of this judgment, it is not necessary to deal comprehensively with these inconsistencies. Rather, I have sought to outline briefly the necessary facts and will expand upon them as necessary throughout this judgment. 5On Sunday, 13 January 2013, the complainant finished work at Zebu Bar and Grill at approximately 5.00 or 5:30pm and had some dinner and drinks in the bar area. The complainant then went to the Beach House with two friends, Shay Glenville and Louise Varricvidio. It is unclear from the evidence when the plaintiff joined the complainant and her friends. It matters little; it suffices to say that the complainant was acquainted with the plaintiff's girlfriend, Sarah Sacchetti, and at some point the two, along with other friends of the plaintiff, being Tony Demsey and Jacob Hurrell, joined the complainant and her friends in the area in which they were sitting. The group continued drinking together. 6At approximately 8.50pm, the plaintiff and the complainant went through a doorway that purportedly led to an office and a set of stairs. Upstairs, among other rooms, was a bathroom. The area was not subject to CCTV recording. I note that there is no dispute that the complainant and the plaintiff went into the office area and to the upstairs area. It is the events that occurred in the upstairs area that were the prime subject of dispute between the parties in the Local Court proceedings. The purpose of the trip to the upstairs area was also disputed by the parties. 7According to the complainant's evidence, she followed the plaintiff through an office, up the stairs and into another room or hallway. There was a doorway leading to a disabled bathroom, which the plaintiff pushed open with his left harm and pushed the complainant towards the door. The plaintiff unzipped his trousers and put his right hand on the complainant's collarbone, pushing her towards the wall and pinning her against it. The complainant could feel the plaintiff had an erection. The plaintiff started feeling around her dress, between her thigh and knee, however did not actually pull her dress up. The plaintiff tried to kiss the complainant, at which point she pushed him away and her hand connected with his nose. The plaintiff then ran out of the room. 8The CCTV footage shows the plaintiff leaving the area at 9.02pm, approximately 13 minutes after the two entered the upstairs area. The complainant stated that she went downstairs and saw the plaintiff walking across Horton Street, the road outside the Beach Hotel. The CCTV footage shows the complainant exiting the area through the same door as the plaintiff approximately 20 seconds later. She begins talking to a male in the outdoor area. The footage shows the two move to the bar area, where they are approached by a security guard, and then depicts them leaving the Beach Hotel. The complaint reports that she then spoke with Jacob Hurrell, who walked her to Zebu Bar and Grill where she contacted her boyfriend, Samuel Ammish. Mr Ammish met the complainant at Zebu and took the complainant to the Port Macquarie Police Station where she reported the alleged incident.

Local Court proceedings 9At the hearing, the prosecution called evidence from the first defendant and the complainant. Statements of Detective Senior Constable Griffith and Senior Constable Sanger were admitted by consent and an edited DVD of CCTV footage of the Beach House on the night of the alleged incident was played to the Court. 10As previously noted, the complainant's recollection of the events in court was generally inconsistent with the CCTV footage. In recognising these inconsistencies, his Honour noted that the complainant "was affected by alcohol, obviously she hasn't had the benefit of viewing the CCTV footage to refresh her memory and there's a lot she can't remember. You can't take it much further than that" (Transcript, p 51). His Honour requested the parties to address him on the inconsistencies and prior inconsistent statements made by the complainant during her evidence. In their address, the plaintiff made submissions for a May v O'Sullivan direction: May v O'Sullivan (1955) 93 CLR 592. 11After hearing addresses from both parties, Magistrate Hodgson subsequently dismissed the charge against the plaintiff. His Honour noted, "On an evidentiary basis it is very difficult for the prosecution because any jury would be told there are numerous inconsistencies between [the complainant's] version of what happened and what we know happened by viewing the CCTV footage before and after" and, after weighing up the inconsistencies, "accept[ed] the defence submission that a jury properly instructed would not convict the defendant on that evidence" (Transcript, 54). 12Subsequent to Magistrate Hodgson dismissing the proceedings, the plaintiff made an application for costs under s 213 of the Criminal Procedure Act 1986. In sum, the plaintiff submitted that the prosecution did not investigate the matter properly. The plaintiff also tendered a letter from Lindeman Lawyers to the Port Macquarie Police, highlighting inconsistencies between the CCTV footage and the complainant's evidence, and inviting the prosecution to withdraw the charge. In response, the prosecution tendered the prosecution brief. 13In declining to make an order for costs and rejecting the submission that the prosecution did not properly investigate the matter, his Honour gave reasons as follows: "I have regard to the submission on costs. ... On paper the brief sounds pretty solid. The complainant had given a comprehensive statement and certainly her evidence today did not measure up to that statement. She says it was twelve months ago and she could not remember a lot and certainly there is a lot of discrepancies in her evidence. It is submitted that the officer in charge did not check out the crime scene and he did the right thing he tried to get CCTV footage of it and there was not any however he did get a lot of CCTV footage and the defendant has summarised that and helped the court by tendering their condensed version. It is my opinion that on the evidence the prosecution did what they had to do. They interviewed the appropriate witnesses, they complied the evidence and it appeared to be a reasonably strong case and they ran it. If they did not run the case they could have been subject to a lot of criticism. The complainant was an employee of the defendant and she made an immediate complaint well contemporaneous complaint and it was an appropriate matter for determination by the Court in my opinion." (Transcript, 56). 14His Honour was not satisfied as to any of the grounds in s 214 and, accordingly, did not consider whether to exercise any residual discretion in s 213 to award costs to the plaintiff. 15The plaintiff now seeks prerogative relief and submits that his Honour erred in refusing the application for costs by committing jurisdictional error and/or an error of law on the face of the record by: (1)Failing to ask the correct questions in relation to the application under s 214(1)(c); (2)Misapprehending or misconceiving the limits of the jurisdiction, pursuant to s 214(1)(c), by not considering all the elements of the subsection; (3)Taking into account irrelevant matters and failing to take into account relevant matters; and (4)Otherwise failing to accord the plaintiff procedural fairness. These submissions will be dealt with in detail later in these reasons. 16I note that these proceedings were brought by way of summons filed on 3 March 2014 and amended summons filed 10 July 2014. A further amended summons was filed in Court on 30 October 2014, seeking an additional order pursuant to Rule 59.10(2) Uniform Civil Procedure Rules 2005, extending the time for the filing of the summons to 3 March 2014. The extension of time is not opposed and the extension was granted.

Jurisdiction and nature of review 17While there is no right of appeal in respect of a decision refusing an award of costs under s 213, in limited circumstances an order in the nature of prerogative relief can be sought by enlivening the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. As there is no privative or ouster clause in respect of a decision under s 213, the power of this Court to provide relief under s 69 of the Supreme Court Act is available on the grounds discussed in Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-176; O'Brien v Hutchinson [2012] NSWSC 429 at [4]. That is, this Court has the power to issue orders in the nature of certiorari for errors of law on the face of the record and for jurisdictional error. 18Error of law on the face of the record includes the reasons of an inferior court or tribunal: s 69(4) Supreme Court Act; see also Craig at 176-180 and the discussion of Craig, along with the reasons generally, in Kirk v Industrial Relations Commission (NSW); Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [71]-[75]. 19Generally, jurisdictional error will be disclosed where a decision maker has: not taken into account a criterion required by law; taken into account an irrelevant criterion; utilised the wrong test or asked itself the wrong question; or misapprehended the nature or limits of its powers as a consequence of which it has performed an act or made a decision (or not done so), which is not sanctioned by authority: see, inter alia, Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. 20Further, jurisdictional error will occur if there were a denial of procedural fairness. Yet, at all times, the distinction between a merit review and judicial review must be kept in mind, otherwise we are "apt to encourage a slide into impermissible merit review": Swift v SAS Trustee Corp [2010] NSWCA 182 at [45]. 21The immense pressure and workload born by Magistrates in Local Courts is well recognised, and accordingly, the terms of any reasons for judgment are not to be scrutinised with an eye focused on finding error: see, e.g. Western Freight Management Pty Ltd v Roads and Maritime Services NSW [2013] NSWSC 260 at [70] and [83]; O'Brien at [14]. Instead, their substance is to be examined to determine whether the correct test was applied. It is a well-accepted principle that it is not appropriate for the Court to examine reasons with a critical eye attuned to error: see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 at 287. This principle was summarised succinctly by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, where their Honours said, at 272: "...the reasons of an administrative decision maker are meant to inform and not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed". 22I am required to abide by the above principles when considering the appeal to this Court. 23I note, as it was an issue raised before me, that as the current proceedings regard a purported failure of the Local Court to make an order in the plaintiff's favour, rather than review of an order made against him, the provisions of ss 52 and 53 of the Crimes (Appeal and Review) Act 2001 are not applicable.

Relevant legislation 24Section 212 of the Criminal Procedure Act 1986 provides that a court may award costs in criminal proceedings only in accordance with that Act. Section 213 provides that a court may award costs at the end of summary proceedings in favour of an accused person if the matter is dismissed or withdrawn, subject to the limitations outlined in s 214. 25Section 214(1) relevantly provides: "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." 26The onus rests on the applicant for costs to demonstrate that he or she meets the legislative criteria: Fosse v DPP [1999] NSWSC 367 at [16]; Southon & Ors v Plath [2010] NSWCCA 292 at [68]. This onus extends to satisfying the court of a component part of s 214(1) upon which a discretionary determination may be based. With respect to s 214(1)(c), this requires the plaintiff to establish: (1) That the prosecutor unreasonably failed to investigate or investigate properly; (2) Any relevant matter of which it was aware or ought reasonably to have been aware; (3) Which suggested that the accused person might not be guilty or for any other reason the proceedings should not have been brought. 27That is, the applicant must identify both the "matter" of which the prosecution was or ought to have been aware and show that this matter suggested the applicant may not be guilty, or that the proceeding should not have been brought: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [20], considering an equivalent provision, being s 70(1)(c) of the Crimes (Appeal and Review) Act 2001. A relevant "matter" must be a matter of fact or evidence: Andrews v Ardler & Brown [2013] NSWDC 94 at [50]. Further, s 214(1)(c) does not apply to every failure to investigate a matter, only those failures that the court considers to be "unreasonable". 28It is recognised that the onus imported on the applicant to establish one or more of the grounds in s 214(1) is a "heavy onus": N v A [2012] NSWCA 318 at [17]. His Honour, Barrett JA, with whom Meagher JA agreed, continued, at [17], that: "Appellate intervention will generally be warranted [in relation to a costs order] only if the primary tribunal's decision was affected by an erroneous view of the law or the facts, by failure to take relevant considerations into account or by the taking of irrelevant considerations into account; or if the result is plainly unreasonable or unjust: Maiden v Maiden [1909] HCA 16 ; (1909) 7 CLR 727; Gronow v Gronow [1979] HCA 63 ; (1979) 144 CLR 513." 29In considering whether the reasons disclose a jurisdictional error or error of law on the face of the record, it must be remembered that a court's reasons for dismissing an application for costs need not be as extensive as, for example, a court's reasons for finding an offence proved or not proved. As their Honours, Maxwell P and Kellam JA, noted in Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212 at [12]: "In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons." 30A number of aspects of s 214(1) involve the exercise of a normative judgment on the part of the court. For example, whether something was "unreasonable", "improper" or whether there were "exceptional circumstances" is an evaluative exercise. As his Honour, Justice Beech-Jones noted, with which I respectfully agree, conclusions by the Local Court on these determinations are very much a matter of opinion: O'Brien at [9]. 31As has been recognised on numerous occasions by this Court and others, the formation of an opinion preparatory to the exercise of a discretion is not readily susceptible to review for error of law, unless such a conclusion lacks a legally defensible foundation in the factual matter or in logic: Kioa v West [1985] HCA 81; (1985) 159 CLR 550; Luu v Renevier (1989) 91 ALR 39 at [50]; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194. Further, a number of phrases in s 214(1) are "not technical legal phrases but words which have a 'common understanding'": O'Brien at [10]. 32It should also be noted that the decision to award costs in criminal proceedings is an exercise of discretion. However, the exercise of this discretion is not wholly unfettered and is one that can only be invoked once the relevant decision maker has been satisfied both that the criteria in s 213 have been met and that none of the limitations in s 214 apply.

Did his Honour err in failing to take into account relevant considerations? 33The plaintiff asserts the "relevant matter" in the current proceedings is threefold, namely: (1)The failure to speak to two witnesses, Mr Daniel Sciascia and the security guard depicted in the CCTV footage speaking with the complainant shortly after the alleged incident; (2)The failure to visit the alleged crime scene; and (3)The failure to take into account all of the video evidence in the prosecution's possession. 34The plaintiff submits that the learned magistrate, by failing to address each isolated matter, failed to exercise the jurisdiction prescribed by s 214(1)(c) and failed to address the case being put to him. The plaintiff submits these failures are so fundamental as to amount to jurisdictional error. 35The plaintiff also relies on the statement of his Honour as to the complainant's employment to establish a failure to accord procedural fairness and otherwise establish jurisdictional error. One of the fundamental propositions underlying the plaintiff's complaint is that this statement was erroneous.

Failure to speak to relevant witnesses 36In the Local Court proceedings, the learned Magistrate rejected the plaintiff's submission that the prosecutor's failure to interview both Mr Sciascia and the security guard at the Beach House, as well as their failure to visit and investigate the scene of the alleged incident, satisfied the criteria in s 214(1)(c) for an award of costs. 37The plaintiff submits that the failure of the prosecution to interview Mr Sciascia or the security guard, in light of the CCTV footage, was unreasonable as if Mr Sciascia's evidence was accepted it may have suggested a lack of guilt on the part of the plaintiff. As such, the plaintiff submits that his Honour's finding that the prosecution interviewed the "appropriate witnesses" was a significant factual error and was a finding not open to his Honour, particularly given his Honour's comments regarding Mr Sciascia on the May v O'Sullivan direction. 38The first defendant submits, in essence, that unless it can be said that the magistrate's finding that the prosecution had interviewed all appropriate witnesses was not open to his Honour, this matter is not susceptible to judicial review. 39The proceedings involve an alleged indecent assault with no eyewitnesses. As such, contemporaneous statements or events are particularly relevant to the merits of the matter. The complainant made contemporaneous statements regarding the alleged incident to three persons, being Samuel Ammish, Tony Demsey and Jacob Mark Hurrell. Both Mr Dempsey and Mr Hurrell were present at the Beach Hotel on the night of the alleged incident. The police spoke with and obtained statements from these persons, which were part of the brief of evidence. The statements of these witnesses broadly corroborate the complainant's account of the incident to police, as evidenced by her statement. 40The statement of Detective Griffith notes that the police were aware, by viewing the CCTV footage, that two other persons spoke with the complainant after the alleged incident however they did not make further inquiries to ascertain their identities. It is not clear, from the evidence before the Court, whether the prosecution made inquiries of the complainant about her conversation with these two persons, being Mr Sciascia and the security guard. It is accepted that speaking with Mr Sciascia or the security guard may have been a relevant line of inquiry. However, s 214(1)(c) draws a distinction between a failure to investigate relevant evidence and a failure to investigate evidence "which suggest[s] that the accused person might not be guilty or for any other reason the proceedings should not have been brought". 41It was accepted by the parties, and this fact was made clear to his Honour, that Mr Sciascia and the security guard were persons to whom no report of the alleged incident was made, nor were they eyewitnesses to the alleged incident (Transcript, p 18): cf the circumstances in Cliftleigh Haulage. Thus, while both Mr Sciascia and the security guard may have been able to provide relevant evidence, that is, for example, that the complainant was present at the Beach Hotel on the night of the alleged incident, on the evidence currently before the Court it cannot be accepted that the evidence of either would suggest, or provide any support for the proposition, that the plaintiff might not be guilty of the offence or that the proceedings should not have been brought for any other reason. 42Nor can it be reasonably suggested that the CCTV footage, or the complainant's statement, suggests that inquiry of Mr Sciascia or the security guard may suggest that the accused might not be guilty. As such, it cannot be said that the prosecutor unreasonably failed to investigate, or to investigate properly, a relevant matter for the purposes of s 214(1)(c) by failing to call or interview either or both as witnesses. Moreover, it is not alleged that the prosecutor failed to call any witnesses to whom the complainant reported the alleged incident. 43I note that it cannot be said that the complainant's failure to report the incident to a person with whom she was merely acquainted, being Mr Sciascia, or a complete stranger, being the security guard, would enable a prosecutor to infer that the proceedings should not have been brought against the plaintiff. It is well recognised that many persons who have experienced sexual or indecent assault do not report the incident until sometime later, and often will not even report it to persons with whom they are very close. Thus, the absence of a statement by the complainant to either Mr Sciascia or to the security guard regarding the alleged incident cannot be used to infer the plaintiff's guilt or innocence. 44It was open to his Honour to conclude that the prosecutor interviewed the "appropriate witnesses" and thereby reject the plaintiff's submission that the failure to interview Mr Sciascia and the security guard constituted a failure to take into account a relevant matter for the purposes of s 214(1)(c). I am not satisfied that this conclusion demonstrates a misconstruction of the nature of his Honour's function as prescribed by s 214(1)(c) and accordingly I do not consider his Honour fell into jurisdictional error.

Failure to visit alleged crime scene 45It is in evidence that there was no CCTV footage of the area in which the alleged incident occurred. As such, in the Local Court proceedings counsel for the plaintiff submitted that the failure of the police to visit the alleged crime scene constituted an unreasonable failure to investigate under section 214(1)(c). In support of this submission, the plaintiff suggested that the layout of the upstairs area "may have been entirely different to what was alleged" by the complainant. 46While it can be accepted that the credibility of the complainant may have been undermined if her description of the upstairs area was inaccurate, it was not put to the complainant that the area was not as she described. Nor does any of the evidence suggest that her description of the area was anything other than accurate. There has not been a submission made, nor from the evidence before this Court could one have been made, which suggests that viewing the alleged crime scene could have made a significant difference in the criminal prosecution. 47The learned magistrate was required to take into account any unreasonable failures by the prosecution to investigate a matter that was not only relevant, but capable of suggesting either the innocence of the plaintiff or another reason for why the proceedings should not have been brought. There is no suggestion that the failure of the prosecution to view the upstairs area would have been able to satisfy his Honour of these matters. Accordingly, I am not persuaded that his Honour's failure to specifically address this submission in his reasons evidences an error of law.

Failure to take into account all of the relevant CCTV footage 48The police seized approximately 32 hours of CCTV footage, which covered several areas of the Beach Hotel for the period surrounding the alleged incident. In the Local Court proceedings, the first defendant gave evidence that he, Mr Lindeman and a technical expert went through the CCTV footage and condensed it to a DVD of approximately an hour, consisting of the relevant footage. The first defendant was not cross-examined on this point, nor was it put to him that he had not viewed the entire 32 hours of footage. 49The plaintiff submits that a principal concern of the Magistrate should have been the substantial inconsistencies between the complainant's statement and the CCTV footage, particularly the differing evidence in relation to times (Transcript, 19). The plaintiff also points to the complainant's failure to mention the first person she came into contact with, being Mr Sciascia. 50The prosecution, while acknowledging the inconsistencies in the complainant's evidence before the Local Court, submits that the inconsistencies did not arise on comparing the complainant's statement with the CCTV footage. Specifically, the CCTV footage was consistent with the complainant's evidence in two important respects, being that both depicted the complainant and the plaintiff proceeding upstairs together and returning downstairs within minutes of each other. 51Aside from the description of the alleged incident, the statement of the complainant to police is relatively vague when describing the night. That being said, the complainant's statement is mostly consistent with the CCTV footage. For example, the complainant states that she and her friends were drinking with the plaintiff prior to the alleged incident; that she and the plaintiff went to the upstairs area together; and that the plaintiff returned from the upstairs area slightly prior to her coming downstairs. The complainant also stated, at [16], that when she went downstairs she saw the plaintiff power walking towards the Fig Café. This statement accords with the CCTV footage at 9.02pm and plaintiff's counsel's interpretation of where the plaintiff was walking (Transcript p 17, line 40). 52There were, however, inconsistencies between the complainant's statement and the CCTV footage. For example, the complainant's statement said she and the plaintiff went upstairs "between 9.00pm and 9.30pm" and did not provide any estimate of the time the two remained upstairs. The CCTV footage depicts the two going through the door to the upstairs area at approximately 8:49pm. The complainant's statement also omits to mention speaking with either Mr Sciascia or the security guard. 53At most, this slight difference in time estimation could only be classified as a minor inconsistency. I also do not consider the omissions in the complainant's statement, when compared with the CCTV footage, were sufficiently persuasive to affect the complainant's credibility to the extent that her statement would be entirely inconsistent with the plaintiff's guilt, or sufficient to suggest that the proceedings should not have been brought. 54The significant inconsistencies between the complainant's evidence and the CCTV footage arose for the first time in the complainant's oral evidence, particularly during cross-examination. As I have previously noted, these inconsistencies were recognised by both the parties and the learned magistrate. The major inconsistences in the complainant's oral evidence concern the duration of the alleged incident and her recollection of the events immediately following, including talking to Mr Sciascia. 55The complainant estimated the time from when she entered the upstairs toilets to the plaintiff leaving the area to be "five, seven minutes if that" (Transcript, p 31 line 13; p 46), whereas the time markings on the CCTV footage show the time elapsed as being approximately 13 minutes. While this is arguably a significant inconsistency, the proposition that a witness would be able to recall precisely the amount of time spent in a particular area nearly 12 months prior is one that I would reject. 56Under cross-examination the complainant denied having seen or spoken to Mr Sciascia on the night of the alleged incident, nor does she recall being asked to leave by the security guard, assuming this is what occurred when the security guard approached her in the bar area. The complainant also agreed, under cross-examination, that she did not inform the police in her statement that one of the reasons she went upstairs with the plaintiff was to use the toilet (Transcript, p 37). 57Section 214(1)(c) does not provide an entitlement to costs where one aspect of the evidence is found to be unmaintainable because of contrary evidence put forward by the defence, or because the prosecution evidence has effectively been undermined in cross-examination: Southon v Plath at [73] per Beazley JA (considering s 257D(1)(c) Criminal Procedure Act, which is in equivalent terms to s 214(1)(c)). The fact that a witness's evidence, once subject to cross-examination, is not able to prove beyond reasonable doubt an element of the offence does not, of itself, prove that the prosecution failed to investigate a matter of which it was aware or ought to have been aware. Moreover, that there was a conflict in the complainant's evidence does not suggest there was an unreasonable failure to investigate: Director-General, New South Wales Department of Industry and Investment v Coomes [2012] NSWLEC 251 at [71]. 58A magistrate considering whether the conditions of s 214(1)(c) are satisfied is not to apply the benefit of hindsight: Endycott (Roads and Maritime Services) v Bulga Coal Management Pty Ltd [2012] NSWSC 1124 at [56] per Grove AJ (considering s 257D(1)(d) Criminal Procedure Act, which is in substantially the same terms as s 214(1)(c)). Thus, while the learned magistrate would have been aware, and in fact noted, that the complainant's evidence in court did not measure up to her prior statement to police or the CCTV footage, the significant inconsistencies in her evidence arose during the trial and were not apparent from the prosecution brief. 59Furthermore, the inconsistencies in the complainant's evidence have to be viewed as part of the whole of the evidence collected by the prosecution. I have already noted that contemporaneous statements were made to other persons about the alleged incident, which persons provided statements that broadly corroborated the complainant's statement to police. In determining whether costs should be awarded under s 214(1)(c), the learned magistrate was correct in acknowledging these discrepancies, yet concluding that, on the paper brief, it was an appropriate matter for determination by the court. In making this finding, I do not consider the learned magistrate misconstrued a limit on his Honour's power as prescribed by the legislation. 60With the exception of the discrepancies between the complainant's statement and the CCTV footage, the plaintiff has failed to particularise what "relevant" CCTV footage the prosecution failed to take into account. Counsel for the plaintiff seemed to suggest that the prosecution should have taken into account the plaintiff's behaviour earlier in the evening, such as the plaintiff's apparent dismissal of the complainant when she appears to reach out her arms towards him as he is walking past the area where the group is drinking, as being relevant to the plaintiff's innocence or guilt. Assuming this is the relevant CCTV footage that the prosecution failed to take into account, I do not see how it can be accepted that this would have any bearing on the guilt or innocence of the plaintiff. Nor can the fact, if it be the fact, that the complainant appears to have been acting in a friendly manner toward the plaintiff prior to the alleged incident be suggestive of the innocence of the plaintiff. 61Further, I do not accept the plaintiff's submission that the complainant's apparent "jovial" appearance in the CCTV footage when she is speaking with Mr Sciascia, or the fact that she gave him a hug, suggests that the plaintiff may be innocent of the alleged conduct.

Did his Honour err in taking into account irrelevant considerations? 62The plaintiff submits that the Local Court's decision not to make an order as to costs is partly based on his Honour's view that if the case had not been run, the prosecution may have been subject to criticism. The plaintiff also points to his Honour's comment about the complainant's employment as an irrelevant consideration. 63With respect to counsel for the plaintiff, I consider the plaintiff's interpretation of his Honour's reasons is misconstrued. In noting that the prosecution may be criticised were they not to run the case, his Honour, albeit in short form, appears to have been summarising his assessment of the strength of the prosecution case based on the evidence before him. This included the brief of evidence which was tendered on the costs application and the other evidence that adduced throughout the Local Court proceedings. Both parties were aware of the evidence tendered to support the charge and were given opportunities to address his Honour on its sufficiency. 64In Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24, Mason J observed, at 41: "...in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. I say 'generally' because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it." [references omitted]. 65It cannot be suggested that, in coming to the conclusion that "If they [the prosecution] did not run it they could have been subject to a lot of criticism", his Honour was taking into account an irrelevant consideration or that his decision was "manifestly unreasonable". Rather, his Honour was undertaking the exact process required of him by s 214(1)(c), being determining if, on the evidence, the matter was suitable for determination by the court and whether the prosecution failed to investigate, or properly investigate, any relevant matter. 66To interpret his Honour's comment regarding the potential for public criticism as an "irrelevant consideration" would be to over zealously scrutinise his Honour's reasons and to act contrary to the well-established principles articulated in Wu Shan Liang. Accordingly, I do not consider that this statement by his Honour discloses any irregularity. 67Similarly, his Honour's comment regarding the complainant's employment was a finding of fact, review of which would involve examining the merits. Furthermore, I do not consider his Honour placed any weight on this fact in coming to his decision.

Did his Honour otherwise fail to accord the plaintiff procedural fairness 68Procedural fairness depends, fundamentally, on the circumstances of the hearing and its statutory context: R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-3. As stated by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 504: "What the law requires in the discharge of a quasi-judicial function is judicial fairness. That is not a label for any fixed body of rules. What is fair in a given situation depends upon the circumstances." 69In Kioa v West, Mason J, at 587, explained: "...Recent decisions illustrate the importance which the law attaches to the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it". 70Notwithstanding the foregoing, it is the practical effect of the alleged denial of procedural fairness with which the courts are concerned and procedural fairness is not determined in the abstract. The concern of the law is to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1. 71More recently, in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 307 ALR 262, the Court of Appeal summarised the principles of procedural fairness, and noted, at [41]-[42], that: "...where a court determines a matter on a basis that was not in issue or argued in the proceedings, there will have been a denial of procedural fairness... That general principle is, however, subject to an important qualification, stated at the practical level, by asking, 'Would further information possibly have made any difference to the decision'". (Citations omitted). 72The plaintiff points to the following conclusions of his Honour and submits that, as these conclusions were not raised with his Honour by counsel, counsel was not given an opportunity to be heard in regard to these matters: (1)That if the police did not run the case they could be subject to criticism; (2)On the paper the brief sounded pretty solid; (3)That the complainant was an employee of the defendant. 73I have already dealt with the comments of his Honour regarding (1) and (3). The only remaining conclusion is his Honour's remark regarding the brief of evidence. 74The brief was tendered by the prosecution in the course of their submissions regarding costs. It can be assumed that the prosecutor was aware of everything in the brief of evidence and the obvious lines of inquiry arising from it. The prosecutor was also under an obligation, arising from the Guidelines made in accordance with the Director of Public Prosecutions Act 1986, to disclose all relevant material as prescribed by those regulations to the accused: see R v Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123. There is nothing before the Court to suggest that the plaintiff did not receive the brief of evidence in this matter. Nor did the plaintiff object when the brief was tendered by the prosecution. 75Fundamental to the process of procedural fairness is that a party is provided with an adequate opportunity to prepare and to present that party's case. Both parties were aware of the contents, or at least, the substantial contents, of the brief of evidence. Both parties were accorded an opportunity to respond, and did respond, to the matters relevant to deciding the application for costs. Procedural fairness does not go so far as to require his Honour to ensure each party utilises the opportunity given to their advantage (Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J), nor to have notified the parties of his thought process when considering the application (Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). 76As earlier stated, procedural fairness depends on the statutory context for the decision-making process. It cannot be said that his Honour's conclusion on whether or not the brief appeared to support the maintaining of a charge against the plaintiff was anything other than a conclusion he was required to make in exercising his jurisdiction under s 214(1)(c) Criminal Procedure Act. Accordingly, this ground must be dismissed.

Conclusion 77For the foregoing reasons, I am not satisfied that the record in the present case discloses jurisdictional error or an error of law. While his Honour did not independently address each of the submissions on the costs application raised by the plaintiff, it is clear that his Honour considered the issues that were before him and came to a conclusion that was required by law. 78I make the following orders: (1)Order that there be an extension of time until 3 March 2014 for the filing of the summons, pursuant to rule 59.10(2) Uniform Civil Procedure Rules 2005; (2)The summons be dismissed; (3)The plaintiff is to pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2014

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