Commissioner of Police (NSW Police Force) v Adam

Supreme Court of NSW|2022-06-15|Before: Beech-Jones CJ

Solicitors: Makinson d'Apice Lawyers (Plaintiff) Stojanovic Solicitors (Defendant) File Number(s): 2021/175623

(Revised from transcript)

By Further Amended Summons filed in Court today, the Commissioner of Police (the "Commissioner") seeks to challenge an order made by Humphreys LCM on 21 May 2021 ordering the Commissioner to pay the costs of the defendant, Mr Zeyiad Adam, thrown away by reason of an adjournment of a hearing due to occur on that day.
As I will explain, at the time the order was made, Mr Adam was facing criminal charges. As these proceedings only concern the test applied by the Presiding Magistrate in awarding him costs, the only matter necessary to note about those charges is that the principal prosecution witness against him was a person who will be referred to as "RP". Further, given that this judgment is being delivered in open court, it is also necessary to note that on 12 November 2021 the charges against Mr Adam were dismissed. Nothing raised on the appeal or addressed in this judgment concerns the reasons for that dismissal.

The Adjournment and the Costs Application

As noted, the matter was listed for hearing on 21 May 2021 in the Local Court sitting at Liverpool. When the matter was called on, the prosecutor applied for an adjournment. The application was opposed. The medical certificate and RP's email to the Court were tendered along with a further medical certificate dated 21 May 2021 from a doctor certifying that she was not fit to attend Court "this week." In opposing the application for an adjournment, counsel for Mr Adam referred, amongst other matters, to the inadequacy of the medical evidence, the earlier adjournment and the effect on his client of the proceedings.
The Presiding Magistrate gave ex tempore reasons for granting the adjournment. Those reasons thoroughly canvass the relevant issues. Ultimately, and notwithstanding some misgivings about the medical evidence, her Honour accepted that RP was unfit to attend Court that day and granted the adjournment.
Towards the conclusion of her judgment, her Honour noted that she had "significant sympathy" for Mr Adam's position by reason of the adjournment. After giving reasons, her Honour observed that "there is a remedy perhaps available in relation to costs". Counsel for Mr Adam then made an application to the Court for costs. The following exchange occurred: "HER HONOUR: Yes, certainly, costs. Do you wish to be heard against that, Sergeant Jiang? PROSECUTOR: Only that, your Honour, as the applicant for my friend I understand s 213 of the Criminal Procedure Act and ask your Honour to make a determination in relation to whether the delay caused by the party will be so unreasonable in the circumstances. In my submission the only submission against that application will be that due to unforeseen medical complications by the complainant in circumstances where the parties have been made aware of the issue and the intention to adjourn the matter as early as possible albeit and I concede it does come very late, the day prior to the date of the hearing, in my submission it would not satisfy your Honour that it will be an unreasonable delay. I understand, your Honour, given the status of the diary, I would anticipate a hearing date in December but as your Honour has noted previously that perhaps June may be suitable, there may be suitable dates in June. I've canvassed with the officer-in-charge and the complainant and the witness that they are available and there's no unavailable dates after the period that she would need to rest and to recover from her condition. HER HONOUR: Which is this week, which is today. PROSECUTOR: Yes, your Honour. HER HONOUR: Yes. However, this witness had a medical certificate indicating she was unfit for the week as early as - PROSECUTOR: 23 May I understand. STANTON: No, 19 May. HER HONOUR: 19 May, yes. It's not provided until yesterday. STANTON: Correct. HER HONOUR: Whilst it is only a day, this court date could have been used and the defendant may have been able to save his legal fees for today if the defence had been put on notice even a day earlier. That was not done. I think it is just and reasonable in relation to the adjournment that costs be awarded." (emphasis added)
After this, the prosecutor then submitted that costs should be limited to "one day in the circumstances that there was no contact from the complainant". Her Honour then observed, "[y]es, well, in relation to being just and reasonable, Mr Stanton, it must only be the costs thrown away of today." Counsel for Mr Adam, Mr Stanton, accepted that that was appropriate. Her Honour then listed the matter for hearing on the following Monday, 24 May 2021. The prosecutor then invited counsel for Mr Adam to nominate a figure for the costs thrown away which counsel did, being the sum of $7,000 inclusive of GST. There was further discussion about the quantification and the exchange of documents to support the figure nominated. Mr Adam's solicitor's affidavit confirms that material was sent to the prosecutor that day supporting the claimed amount.
Although it was not entirely clear from the transcript, it appears to be common ground that on 21 May 2021 an order was made requiring the Commissioner to pay Mr Adam's costs thrown away in the amount of $7,480.
The hearing of the charges against Mr Adam commenced on 24 May 2021 and, as noted, they concluded in his favour in November 2021. In the meantime, on or about 15 June 2021, the costs were paid. On 18 June 2021, the Commissioner commenced these proceedings.

The Nature and Grounds of the Appeal

Section 56(1)(e) of the Crimes (Appeal and Review) Act 2001 (the "CAR" Act) confers on a prosecutor a right of appeal to this Court against an order for costs made against them by the Local Court in summary proceedings, which are not with respect to an environmental offence, "but only on a ground that involves a question of law alone". The Commissioner's Further Amended Summons seeks to invoke this right and also seeks to invoke the Court's judicial review function confirmed by s 69 Supreme Court Act 1970 (NSW). Given the matters sought to be argued and the existence of an express right of appeal, I will dismiss that part of the proceedings that seeks judicial review under s 69.
As for s 56(1), "[a] question of law alone" as distinct from a question of law or a complaint about error of law, is a question that "can be stated and considered separately from the facts with which it may be connected in a given case" (see Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibb CJ at [314] per Wilson and Dawson JJ).
Even so, a conclusion of mixed fact and law can be challenged on an appeal restricted to a question of law alone if it can be determined that that conclusion "[p]roceed[ed] from a misdirection of law" (Williams at 287). In R v PL [2009] NSWCCA 256 at [27], Spigelman CJ stated that a contention that a presiding judicial officer erred may involve a question of law alone if a stand alone legal proposition can be identified which was a "distinct and separate step in the reasoning process".
In Bimson, Roads and Maritime Services v Damorange Pty Limited [2014] NSWSC 734 at [41], I stated as follows: "If that task [of identifying a question of law in abstract terms] is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome..."
Leaving aside the approach to materiality that is referred to in this passage, the end result is that an appeal on a question of law alone may raise a question of law, the answer to which is obvious. Further, the appeal will only "involve" that question of law alone if that answer was a "distinct and separate step in the reasoning process" of the court below (PL supra), even accepting that such a step may only be implicit in the lower court's reasoning. Answering that question will only of itself lead to a conclusion that a decision should be set aside if the court either addressed that question incorrectly or proceeded on an assumption as to the answer which was incorrect and it was material to the outcome. If the court did not proceed on a misapprehension as to the law, then, at most, its decision will only be affected by an error or mixed fact of law and no question of law alone will ultimately either arise or be involved in the proceedings (see White v DPP [2021] NSWSC 1629 at [13]).
This is all significant because the "grounds" of appeal identified in the Further Amended Summons do not seek to identify a question of law alone, instead they contend as follows: "The learned Magistrate erred in: 1. failing to apply the correct legal test in awarding the defendant his costs of the adjournment on 21 May 2021; alternatively 2. failing to provide reasons about the conduct or delay of the prosecution which was unreasonable for the purpose of s 216(2) Criminal Procedure Act 1986; alternatively 3. unreasonably finding that informing the defendant the day before the hearing that the complainant was ill and unable to give evidence amounted to unreasonable conduct or delay of the prosecutor; alternatively 4. misapprehending the limit of the power in s 216(2) Criminal Procedure Act 1986 and taking into account the circumstances of the police investigation and procedural history beyond those circumstances pertaining to the unavailability of the complainant when assessing the conduct or delays of the prosecution; 5. unreasonably finding that additional costs had been incurred by the defendant in the absence of evidence; 6. unreasonably finding that the adjournment would incur additional costs of $7,480.00 in the absence of evidence."
Some of these grounds refer to ss 216(2) of the Criminal Procedure Act ("CPA") which governs the Presiding Magistrate's power to award costs in the circumstances of this case. Section 216 provided: 216 Costs on adjournment (1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned. (2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made. (3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of the proceedings. (4) An order may be made whatever the result of the proceedings.
The Commissioner's submissions referred to the possibility that the exercise of this power to award costs on an adjournment against the prosecutor might also be governed by s 213 of the CPA. It is ultimately not necessary to decide that issue.
When all is said and done, the real complaint sought to be raised by the Commissioner in these proceedings is encompassed by ground 1 of the Further Amended Summons. Ultimately, the Commissioner contended that the Presiding Magistrate did not determine whether there was any unreasonable conduct or delay on his part before awarding costs. Recast in terms of s 56(1) of the CAR Act, the relevant question of law alone that arises in these proceedings is "[w]hat is the appropriate test to apply in determining to award costs against a party such as a prosecutor resulting from an adjournment?" The short and obvious answer is that such costs can only be awarded if the Court is satisfied that the innocent party has incurred additional costs "because of the unreasonable conduct or delays" of the prosecutor. Having answered that question by reference to s 216(2), the next question that arises is whether the Presiding Magistrate acted on a basis contrary to that understanding. With respect to her Honour, the answer to that question is clearly "yes". Her Honour's reasons were understandably brief. However, her Honour's reasons were also very clear. On two occasions her Honour referred to whether it was "just and reasonable" to award costs in favour of Mr Adam. Her Honour awarded costs on the basis that it was just and reasonable because her Honour concluded that Mr Adam had suffered prejudice from the adjournment and that the adjournment was not his fault. Her Honour acted on the basis that the awarding of costs was not governed by any consideration or whether there was any unreasonable conduct or delays on the part of the Commissioner. Her Honour made no such finding against the Commissioner. Indeed there was no submission to that effect made to her Honour, nor was there any evidence of any such unreasonable conduct on the part of the Commissioner. Instead, all the evidence demonstrated was that, almost instantaneously upon being advised by RP that she was unwell, the relevant prosecutor informed Mr Adam's solicitor and the Court that an application for an adjournment would be made.
Overall, it seems that instead of identifying the correct test by reference to s 216(2) of the Criminal Procedure Act and applying it, her Honour instead applied the test for costs that prevailed in this state following the decision in Latoudis v Casey (1990) 170 CLR 534 especially at 569.
Given that conclusion, it is not necessary to address in detail the balance of the grounds of appeal via an analysis which seeks to identify some anterior question of law alone. However, for the sake of completeness, I will say something briefly about each ground.
In relation to ground 2, there was no failure on the part of her Honour to give appropriate reasons for the costs order. Although her Honour's reasons were brief, they set out with clarity the basis upon which the order was made, although it did, as I found, involve an adoption and application of the wrong legal test.
So far as ground 3 is concerned, I do not consider her Honour made any such finding. As I stated, her Honour never expressly found that there was any unreasonable conduct on the part of the Commissioner. No such submission was made to her Honour and there was no evidence that would support such a conclusion.
Ground 4 of the Further Amended Summons is encompassed by ground 1.
Grounds 5 and 6 appear to be directed towards the quantification of the claim and the necessity to demonstrate that the costs awarded are costs incurred "because" of the relevant unreasonable conduct or delay (see Council of the City of Sydney v Trico Constructions Pty Limited [2015] NSWLEC 56 at [135]).
I have set out the course of events that occurred after her Honour decided to award costs in relation to quantification. The prosecutor submitted that the costs should be limited to one day. Counsel for Mr Adam agreed on that course. There was an exchange that arrived at a figure which overall seemed to be accepted by everyone as reasonable. In a busy forum such as the Local Court, I see no error in that process. Of course the position may be different if a very large and contentious sum of costs had been awarded.
In his careful submissions in this Court, counsel for Mr Adam referred to the history of the proceedings, the inadequacy of the medical evidence and the delay of RP in advising of her medical difficulties. However, ultimately those matters do not affect the fact that her Honour adopted the wrong test and that there was otherwise no basis of finding there was any unreasonable conduct or delays on the part of the Commissioner.

Relief

It follows that the appeal will be allowed and the costs order will be set aside. The Further Amended Summons sought restitution of the amount of costs that have been paid over. Counsel for Mr Adam conceded that if the costs order was set aside, that order would follow.
So far as costs in this Court are concerned, during the course of argument, I raised with the solicitor for the Commissioner whether, in the event his client was successful, such costs should be awarded. I was concerned about a number of matters. The costs application was in fact instigated by her Honour's comments. An appeal under s 56(1) of the CAR is directed to matters of principle. As I understood it, in this appeal the Commissioner was not so much concerned about the payment of the particular sum to Mr Adam, but the proposition that, where the prosecutors immediately pass on evidence they had received from a complainant which is used for the basis of an adjournment, they should nevertheless incur a costs order.
I was also concerned that, given the relatively modest amount of costs that were in issue, an order for costs in this Court would be disproportionate. In the end result, the solicitor for the Commissioner did not press an application for costs in this Court.
Accordingly, I make the following orders: (1) The appeal be allowed. (2) The order of Humphreys LCM made on 21 May 2021 that the prosecutor pay the first defendant's costs in the sum of $7,480 be set aside. (3) The application made by the first defendant on 21 May 2021 for his costs of the adjournment granted on that day be dismissed. (4) The first defendant repay to the Commissioner of Police the sum of $7,480 within 28 days. (5) There be no order as to the costs of the proceedings in this Court (6) The Further Amended Summons be otherwise dismissed.

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: 17 June 2022

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