Commissioner of Police v Fandakis and Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11831/01 COMMISSIONER OF POLICE v Harry Charles FANDAKIS and Anor. JUDGMENT HER HONOUR : 1 By summons filed on 14 June 2001 the plaintiff (the Commissioner of Police, to whom I shall refer as "the Commissioner") seeks an order in the nature of certiorari quashing an order of a magistrate of the Local Court. The order in question was an order that the Commissioner pay certain costs incurred by the defendant (Mr Harry Fandakis) in the course of committal proceedings. The Commissioner's contention is that the magistrate had no power to make the order. He does not assert that, if power existed, any error in the exercise of discretion can be identified, nor does he challenge the quantification. The issue, then, concerns purely a question of the power of the magistrate to make the order in the circumstances that appertained. 2 The factual background is this. Mr Fandakis was charged with indictable drug offences. Committal proceedings in the Local Court began on 11 December 2000. On that day a police officer, while under cross examination on behalf of Mr Fandakis, sought to be excused from answering certain questions. The basis for his request has consistently been referred to as "public interest immunity" or "privilege". It may be taken that what he sought is properly characterised as a direction under s 130 of the Evidence Act 1995 that the information sought to be obtained from the answers to the questions not be adduced as evidence. S130 permits such a direction to be given where: "… the public interest in admitting into evidence information … that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information …" 3 Information of a kind that relates to "matters of state" is explained in sub s (4); considerations relevant to the exercise of the discretion to give a direction are contained in sub s (5). Because of the course the proceedings subsequently took it is unnecessary to do more than note those subsections. 4 Although the committal proceedings had been listed to proceed over that day (11 December) and the following day, they were, on the application of the prosecution, adjourned to enable evidence to be adduced in support of the claim for "public interest immunity". 5 The committal was relisted on 22 December. The transcript records the magistrate opening the proceedings by saying: "This matter is in today for the tendering of an affidavit re the claim of public interest immunity that is made by the informant - I beg your pardon, not the informant, he was one of the arresting police officers …" 6 The transcript of that day also records (incorrectly, I was told by both counsel) that a Mr Barrie appeared for the informant. The fact was, I was further informed, Mr Barrie appeared as representative of the Commissioner for the purpose of pursuing the application made under s130. The transcript does not disclose the formal basis of Mr Barrie's appearance: that is, there is nothing to suggest that he formally intervened in the proceedings on behalf of the Commissioner, or that his application was made pursuant to any documentary process. Nevertheless, discussion ensued in which Mr Barrie was clearly enough accorded the right to be heard and to represent the Commissioner for the purpose stated. Mr Barrie sought to put certain material before the Court but this was rejected, the magistrate observing that evidence in affidavit form was required. 7 There followed further discussion, apparently about an affidavit that Mr Barrie received during the proceedings, and upon which he sought to rely. The magistrate rejected the document. Initially, it appears that she rejected it because of its form - she said that it was not set out in appropriate form, and that it was: "really a statement which then attaches an affidavit made by some other person …".

She then said: "…it certainly doesn't satisfy our needs in this Court."

A little later she said again that the document: "certainly doesn't meet that requirement of the Court."

There followed some discussion about the court's power to award costs. 8 The matter next returned to the list on 28 May 2001. Mr Barrie is again noted on the transcript as representing the Commissioner. The informant was separately represented, as was Mr Fandakis. 9 The transcript records that further discussion on the "issue of public interest immunity" took place, but the initial discussion has not been transcribed. 10 Counsel for Mr Fandakis is recorded as protesting at what he described as a "renewed application" for "privilege". The transcript notes "discussion" (untranscribed) about a number of matters. At this point the magistrate made clear that, on the previous occasion, she had intended not only to reject the affidavit tendered by the Crown because of its form, but that she had also, having regard to the content of the tendered affidavit, rejected the claim for "public interest immunity" on its merits. She said: "I remember seeing the document and the content of it was not sufficient to cover the point that was sought." 11 The transcript then records that Mr Barrie applied for the proceedings to be adjourned because he had received instructions to appeal to this court against the ruling rejecting the claim. That application was refused and the committal proceeded. It seems, from the material before me, that evidence recorded in about forty-nine pages of transcript was given. At that point Mr Barrie intervened to inform the magistrate that "certain orders" had been made in this court, pursuant to a summons, prohibiting the magistrate (on an interim basis only) from permitting questions on a particular subject matter. The summons in this court was, Mr Barrie said, fixed for further hearing at 11 am on 29 May. 12 The committal was listed to resume that same day, 29 May. Having regard to the hearing of the summons in this court at the same time, the magistrate adjourned the committal. The Local Court transcript records resumption at a time that is not identified, with Mr Barrie informing the magistrate that, certain undertakings have been given in this court on behalf of Mr Fandakis, no further orders had been made. There was therefore no impediment to the continuation of the committal. 13 Counsel for Mr Fandakis then sought an order that the Commissioner pay the costs thrown away as a result of the time that had been lost, or spent in relation to the claim under s 130. The magistrate heard argument on that application. She then delivered, ex tempore, a judgment, the transcript of which reads, in part: "I can firstly say that I do take the view that the application on the part of the Police Commissioner to intervene in these proceedings by way of an application to the Supreme Court on a claim of public interest immunity is a civil proceedings, certainly not a criminal proceedings and indeed, in such proceedings it is a well established rule of law that costs follow the event and in this event the applicant has certainly not been successful. [The magistrate then recounted something of the history to that time, that is, 12 December] … the court took a particular view, certainly the view that there was the application as it was developing was ill conceived, an undertaking was given to the court that an affidavit would be forthcoming and after some discussion too [sic] and fro the court adjourned the proceedings until 22 December on the basis that an affidavit would in fact be produced on that occasion. In the result, no such affidavit was produced. A written document of thoughts [sic - ? sorts] was produced. Heaven knows how it might be properly described as a document that was to be presented to a court in any sort of proceedings. It was really worthless in terms of the application that was being made and once again, an entire day's hearing was aborted by reason of that failure on the part of the applicant and I am certainly prepared to allow costs for that day in the amount sort [sic]."

In the end the magistrate allowed costs for the whole of 12 and 22 December 1997 and for half of each of 28 and 29 of May 2001. 14 As noted above, the sole issue in the present proceedings concerns the power of the magistrate to order the Commissioner to pay the costs incurred as a result of the unsuccessful s 130 application. It was common ground that the words: "by way of an application to the Supreme Court"

that appear in the opening sentence of the judgment represented an error, or slip of the tongue, brought about by reason of the ex tempore nature of the judgment. The costs in question are not in any sense related to the application in this court. They are solely the costs associated with the application in the Local Court. 15 The Commissioner's contention is that the order was made in the course of criminal proceedings, and that the power to make a costs order in such proceedings is severely circumscribed and does not extend to the present circumstances. The contrary argument advanced on behalf of Mr Fandakis was:

(i) properly characterised, the question relating to the claim for "privilege" (a direction under s 130) is a discrete issue, and is a civil proceeding brought under s 130 of the Evidence Act ;

(ii) by reason of the Justices Act 1902, the magistrate had a power to adjourn proceedings, and that a necessary concomitant of that power is an implied power to award costs in order to secure the proper administration of justice;

(iii) s 41A of the Justices Act 1902 creates a power to award costs. 16 The Local Court is a court created by statute: Local Courts Act 1982, s 6. Its jurisdiction is solely that conferred by that or other statutes. It has no power that can properly be described as "inherent": see Grassby v R (1989) 168 CLR 1. There is, however, a distinction between an inherent power and a power implied by statute, or implied as a result of other powers conferred by statute. I am satisfied that the Local Court does not have any inherent power to make an award of costs, but I do not understand counsel for Mr Fandakis to have suggested that it does. If the court had the power to make the order for the payment of costs that it did, that power must derive from one or more of the statutory powers conferred by the various legislative instruments which confer powers on the court. Such power may be conferred expressly or by implication. 17 A sharp divergence exists between the power of the Local Court to award costs in cases that are properly characterised as criminal, and those which are properly characterised as civil. It was in recognition of this fact that the parties devoted a good deal of time to their respective contentions that the order made by the magistrate was an order made in criminal proceedings (the Commissioner) or civil proceedings (Mr Fandakis). 18 There is not the slightest doubt that the substance of the proceedings against Mr Fandakis was criminal. He was charged with an indictable offence, or indictable offences. The procedure upon which the magistrate embarked was the procedure laid down by Division 1 of Part 4 of the Justices Act which is concerned with the procedure before magistrates with respect to indictable offences. The tasks of the magistrate on such a proceeding, are, by s 41(2), to determine, when all the evidence for the prosecution has been taken, whether, having regard to all that evidence, the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence; and, by s 41(6), to determine whether there is a reasonable prospect that a jury would convict the defendant of an indictable offence. That is the essence of the inquiry conducted by a magistrate. 19 It is well established that the proceeding is not a judicial proceeding, but an administrative inquiry (see, eg, Grassby), and no punishment can be imposed upon the defendant at the conclusion of the enquiry. That does not prevent the proceedings being criminal in character. 20 However, counsel for Mr Fandakis did not rest his argument upon any proposition that the proceeding brought by the DPP against his client were not criminal in nature. His argument rested upon the proposition that the s 130 issue was a discrete issue. Although this argument initially was unappealing, on further consideration it became more attractive. Counsel for the Commissioner, in responding to the argument, asserted that the question that arose concerned "the admissibility of evidence". He further argued that the question of whether or not the evidence should be admitted was a matter arising within the criminal proceedings and therefore within the magistrate's criminal jurisdiction. 21 Close analysis of s 130 does not support the first proposition. S 130(1) should be set out in full. It provides: "If the public interest in admitting into evidence information or a document that relates to matters of state is outweighed by the public interest in preserving secrecy or confidentiality in relation to the information or document the court may direct that the information or document not be admitted as evidence". 22 What s 130 permits the court to do is to: "direct that the information or document not be adduced as evidence". 23 Further, by sub s (2) the court is empowered to give such a direction either on its own initiative or on the application of any person, whether or not that person is a party to the proceedings. By sub s (3) the court is permitted to inform itself: "in any way it thinks fit". 24 This approach may be contrasted with that in many other sections of the Evidence Act. Two things are of note. Firstly, s 130 empowers the court to "direct" that the information or document not be adduced as evidence; secondly, sub s (2) permits a person not a party to the proceedings to make an application for such a direction. 25 In other sections of the Evidence Act, where the admissibility of proposed evidence is in question, or where a discretion to exclude otherwise admissible evidence is conferred, the language employed is the more conventional language of admissibility - for example, in s 135 the court is given a discretion to "refuse to admit evidence"; in s 137, where the stated circumstances exist, "the court must refuse to admit evidence"; in s 138, evidence obtained improperly or illegally "is not to be admitted" unless other stated circumstances are found to exist. In other sections (for example, ss 56, 59) evidence is declared to be admissible or not admissible. These are only a small sample of the provisions of the Evidence Act that illustrate that what is contemplated by s 130 is qualitatively different from the more familiar question of admissibility. 26 These circumstances lend considerable force to the argument advanced on behalf of Mr Fandakis. Of particular importance is the entitlement of a person not a party to the principal proceeding to make an application. But also of significance is the fact that the court may give a direction, as distinct from making a decision to admit or not admit evidence, whether in the exercise of a discretion, following an evaluation of competing considerations (eg s 137), or as a strict matter of admissibility. 27 Not all of the indications favour the construction proposed on behalf of Mr Fandakis. Significantly in favour of the contrary proposition are a number of factors. One of these is the use of the definite article before the word "court". This, alone, clearly suggests that the court which, it was envisaged, would give the direction is the court before which the principal proceeding is conducted. That, in turn would suggest that the application may be seen as part of, or ancillary to, the principal proceeding. Similarly, the balancing exercise the court is required to perform is a balancing of the public interest in admitting into evidence the information or document against the public interest in preserving secrecy or confidentiality in relation to the information or document. The first of these clearly requires a close appreciation of the issues involved in the particular proceeding. Further, the Evidence Act as a whole is generally concerned with the admissibility, or the admission, of particular pieces of evidence in individual proceedings. 28 The scope of s 130 has not yet been determined. The implications of its qualitative difference from other sections in the Evidence Act to which I have referred are unclear. Although, as I have observed, the use of the definite article to identify the court which may give the direction suggests that that power is conferred upon the court in which the principal proceeding in question is being determined, that is not the only available construction. "Court" is defined as meaning "NSW court": "NSW court" is defined as meaning, relevantly, this court or any other court created by Parliament. It is not inconceivable that the section extends to permitting another court to give a direction (not to the court hearing the proceeding, but to some other person) concerning the giving of the evidence under consideration. The terminology of the section is wide enough, on one construction at least, to permit a direction to be given to a witness, or a party to proceedings, or to counsel. 29 Another matter for consideration concerns the appropriate means by which an application for a direction is to be made. In the present case, as so often happens, the application was made with a degree of informality, and the transcript does not suggest that s 130 was drawn to the magistrate's attention. However, it is appropriate to consider what a formal application would have involved. Ideally, at least in a civil proceeding, an application would be made by notice of motion. It may be made by a party to the proceedings or any other person; it may identify a party, or more than one party, to proceedings as the order against whom the direction is sought; if made by a person other than a party to the proceedings, it may require leave to intervene in the proceedings. Certainly, it would be open to the court to treat such an application as a discrete matter involving other than the parties to the principal proceedings. 30 In a civil proceeding it would be unnecessary to consider whether the fact that it could be treated as a discrete application opened the way for a costs order, because in civil proceedings it is always possible to make orders as to particular issues or parts of the proceedings. I mention civil proceedings as a means of attempting to elucidate the nature of an application under s 130. Although I have found the question extremely difficult, because it is so finely balanced, I favour the construction for which Mr Fandakis contends. In reaching this conclusion I put to one side the argument that a contrary construction would give rise to an injustice. I do not think that, for the purposes of the present issue, arbitrary or potentially arbitrary results should guide the interpretation of the section. The principal factor that moves me to this conclusion is the capacity of a person not a party to the principal proceeding to seek a direction. I am further inclined to reject the Commissioner's proposition that the issue was simply one of the admissibility of evidence by reason of the divergences in the terminology of s 130 from the terminology of other sections to be found in the Evidence Act which I have mentioned. 31 However, that result may not avail Mr Fandakis. Before an award of costs may be made, the statutory power to make the award (express or implied) must be identified: see Director of Public Prosecutions v Deeks (1994) 34 NSWLR 523. Division 1 of Part 4 of the Justices Act provides a comprehensive code for the conduct of committal proceedings in relation to the prosecution of indictable offences. The only provision relating to an award of costs which appears in that Division is s 41A. That section empowers a magistrate, if the relevant tests are satisfied, to award costs in favour of a defendant to committal proceedings. However, the opening sub paragraph confines the exercise of the power to circumstances when a magistrate makes an order discharging a defendant, or committing a defendant for trial for an indictable offence which is not identical in all respects to that with which the defendant was charged. Neither of those circumstances is here applicable. The Division is otherwise quite silent as to the award of costs. 32 Counsel for Mr Fandakis urged that the very existence of s 41A points to a conclusion that the legislature intended to and did in fact abrogate the common law rule that costs are not awarded in criminal cases. This much may be accepted. However, contrary to the balance of his argument, the abrogation was limited to the express powers set out in the section. The legislature did not leave open power to award costs in circumstances other than those expressly mentioned in the section. S41A does not assist Mr Fandakis. 33 Even if the application by the Commissioner is properly characterised as a "civil" proceeding, I am unable to ascertain, and I was not directed to, any relevant power in the Local Court to make an award of costs. 34 Counsel for Mr Fandakis contended that, in civil proceedings, the Local Court's power to make an award of costs derives from s 34 of the Local Court (Civil Claims) Act 1970. Sub s (1) of that section provides: "Subject to this Act and the rules, and subject to any other Act: (a) costs in or in relation to an action shall be at the discretion of a court, (b) a court has full power to determine by whom, to whom and to what extent costs are to be paid in or in relation to an action, and (c) a court may order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on an indemnity basis."

The succeeding sub sections confer additional jurisdiction on a Local Court, either sitting in its General Division or in its Small Claims Division. They are not presently relevant. 35 In my opinion the words "in relation to an action" relate back to s 12 of the Act, which confers jurisdiction on the Court "to hear and determine actions for the recovery of any debt, demand or damage …"

subject to a jurisdictional limit. That is, the discretion to award costs conferred by s 34 is limited to costs incurred in an action within the meaning of s 12. The Commissioner's application was not such an action. 36 S 34 of the Civil Claims Act does not benefit Mr Fandakis in this case. 37 The final argument advanced on behalf of Mr Fandakis was that the Local Court had an implied power arising from the general law, or from the general law in combination with s 130 of the Evidence Act. In aid of this proposition he cited the decision of Smart J in Lenny Le Boursicot (1994) 79 A Crim R 548. In that case Smart J upheld a decision by a magistrate to grant the prosecution an adjournment of the hearing of an information on terms that the defendant's wasted costs be paid by the prosecution. Such an approach is consistent with the judgment of this court in R v Mosely (1992) 28 NSWLR 735, in which Gleeson CJ (with whom Kirby P and Mahoney JA agreed) distinguished between an order for the payment of costs in criminal proceedings, and the grant of an adjournment on terms that costs be paid by the party seeking the adjournment. 38 Again, however, these authorities do not assist Mr Fandakis. The magistrate in this case did not purport to grant an adjournment on terms that costs be paid; what she did, after the event, was to purport to make an order that costs be paid. 39 I am satisfied that the order was without power. No other express power has been identified as potentially permitting the magistrate to make the order she did, and such a power cannot, in my view, reasonably be implied into any of the powers the magistrate had in relation to this committal proceeding, or the Commissioner's application. For these reasons I am of the view that the order sought on behalf of the Commissioner must be made. 40 It is, however, appropriate to make the following observation. It is apparent that the Commissioner's application was misconceived. It is also apparent that his determination to persist in making the application caused the loss of two full days and two half days of the committal proceedings. I take it (although there was no direct evidence to this effect) that Mr Fandakis was privately represented during the course of the proceedings. In the circumstances the misconceived application, which was never supported by any adequate evidence in the Local Court, has directly resulted in Mr Fandakis incurring unnecessary costs. No doubt it is for that reason that counsel for the Commissioner expressly refrained from addressing any argument either to the exercise of discretion (had a discretion existed) or the quantification of the costs. 41 The order I make is that the purported order made in the Local Court on 29 May 2001 requiring the Commissioner of Police to pay to Harry Charles Fandakis costs in the amount of $9,000 is quashed.

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