Commonwealth Director of Public Prosecutions v Acevedo

Supreme Court of NSW|2009-07-09|Before: Davies J

CITATION : Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653

DECISION : (1) The appeal is allowed. (2) The orders of the Magistrate dismissing the information and ordering the Crown to pay the Defendant's costs are quashed. (3) The proceedings are remitted to the Local Court to be heard before a different Magistrate.

CATCHWORDS : CRIMIMAL LAW - practice and procedure - prosecutor's appeal from decision of magistrate to give herself a Prasad direction and dismiss information - whether matter appropriate for Prasad direction - whether error of law - finding of incorrect fault elements in analysis of offence - requiring proof of irrelevant matter - error as to standard of proof.

Crimes (Appeal and Review) Act 2001 LEGISLATION CITED : Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986

Attorney General (NSW) v X (2000) 49 NSWLR 653 CDPP v Bozana Fabri [2008] NSWSC 655 Crowther v Sala [2007] QCA Dean v R (1995) 65 SASR 234 Doney v R [1990] 171 CLR 207 CASES CITED : DPP v Adam Jones Lee [2006] NSWSC 270 DPP (Cth) v Parham Neamati [2007] NSWSC 746 Misfud v Campbell (1991) 21 NSWLR 725 R v Pahuja (1988) 49 SASR 191 R v Prasad (1979) 23 SASR 161 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

TEXTS CITED : Stephen Odgers, (2007) Principles of Federal Criminal Law, Lawbook Co.

Commonwealth Director of Public Prosecutions (Plaintiff) PARTIES : Alexandra Acevedo (Defendant)

SOLICITORS : Commonwealth Director of Public Prosecutions (Plaintiff) Archbold Legal Solutions (Defendant)

1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS V ALEXANDRA ACEVEDO

1 On 5 August 2008, the defendant Alexandra Acevedo pleaded not guilty to one offence under s 135.2(1) Criminal Code Act 1995 (Cth) in the Downing Centre Local Court. The matter came on for hearing on 24 November 2008 before Magistrate O'Shane. 2 At the conclusion of the Prosecution case the Defendant, by her counsel, made an application that the Magistrate give herself a "Prasad" direction and dismiss the charge without hearing further evidence or submissions. The Magistrate reserved her decision on the application. 3 On 1 December 2008 the Magistrate delivered judgment on the Prasad application, upheld the application and dismissed the charge. The Magistrate also ordered the Plaintiff to pay the Defendant's costs in the sum of $5,225. 4 The Plaintiff, the Commonwealth Director of Public Prosecutions (DPP), appealed to this Court pursuant to s 56 of the Crimes (Appeal and Review) Act 2001. The appeal seeks orders that the orders of the Magistrate made on 1 December 2008 dismissing the charge against the Defendant and ordering the Plaintiff to pay the Defendant's costs in the amount of $5,255.00 be set aside and that the matter be remitted to the Local Court to be heard according to law by way of a fresh hearing before a different Magistrate. The summons had also sought an order that the Defendant pay the costs of the appeal but at the hearing of the appeal this order was abandoned. 5 The grounds of appeal are these:

(1) That the learned Magistrate erred in determining the elements of the offence; (2) That the learned Magistrate erred in determining, as a matter of law, that on the evidence before the Court in relation to the offence, a Prasad direction was available; (3) That the learned Magistrate erred in finding that on the evidence before her the requirements of s 214(1)(c) of the Criminal Procedure Act 1986 had been made out; (4) That the learned Magistrate erred in failing to make the order for Costs in the manner required by s 213(1) of the Criminal Procedure Act 1986. 6 The Court Attendance Notice addressed to the Defendant contained the following details of the Offence: Description of Offence: Engaged in conduct to obtain a financial advantage from a Commonwealth entity. Time and Date of Offence: Between about 17 April 2007 and about 11 December 2007. Place of Offence: Sydney, NSW

Short Particulars: Did engage in conduct and as a result of that conduct did obtain a financial advantage for herself from a Commonwealth entity, namely the Commonwealth Services Delivery Agency, knowing or believing that she was not eligible to receive that financial advantage, namely that part of Parenting Payment Single to which she was not entitled, because she was in receipt of income from the Commonwealth Bank of Australia.

Statutory Provision Describing Offence: s. 135.2(1) Criminal Code 1995 (Cwlth) 7 The case alleged by the DPP was that whilst engaged in full time employment with the Commonwealth Bank, the Defendant was receiving social security payments being Parenting Payment - Single, and that she had declared her income at about $12,000 in the relevant period when in fact she had earned about $24,000. The result of the under-declaration of income was that she was overpaid benefits totally about $5000. 8 Section 135.2 of the Criminal Code Act 1995 (Cth) provides:

"135.2 Obtaining financial advantage (1) A person is guilty of an offence if: (a) the person engages in conduct; and (aa) as a result of that conduct, the person obtains a financial advantage for himself or herself from another person; and (ab) the person knows or believes that he or she is not eligible to receive that financial advantage; and (b) the other person is a Commonwealth entity. Penalty: Imprisonment for 12 months. (1A) Absolute liability applies to the paragraph (1)(b) element of the offence. …" 9 Chapter 2 of the Code sets out general principles of criminal responsibility. Section 4.1 entitled "Physical elements" provides:

"(1) A physical element of an offence may be: (a) conduct; or (b) a result of conduct; or (c) a circumstance in which conduct, or a result of conduct, occurs. …" 10 Division 5 of Ch 2 sets out "Fault elements" as follows:

"5.1 Fault elements (1) A fault element for a particular physical element may be intention, knowledge, recklessness or negligence. (2) Subsection (1) does not prevent a law that creates a particular offence from specifying other fault elements for a physical element of that offence. 5.2 Intention (1) A person has intention with respect to conduct if he or she means to engage in that conduct. (2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist. (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. 5.3 Knowledge A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events. 5.4 Recklessness (1) A person is reckless with respect to a circumstance if: (a) he or she is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is one of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element. 5.5 Negligence A person is negligent with respect to a physical element of an offence if his or her conduct involves: (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and (b) such a high risk that the physical element exists or will exist; that the conduct merits criminal punishment for the offence.

5.6 Offences that do not specify fault elements (1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element. (2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element. Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness .

11 The reasons of the learned Magistrate for the course she took appear from a transcript of the hearing on 1 December 2008. Her Honour first set out the provisions of s 135.2 (although there is probably a typographical or transcription error referring to s 135.1), she discussed some cases including R v Prasad (1979) 23 SASR 161, she discussed the Criminal Code and the way that worked in terms of establishing fault, and then went on to deal with the elements in the offence charged. 12 Her reasons in that regard are as follows (commencing at T4.44): Which fault element is applicable in any given case will depend on the physical elements involved in the case. In the present case, the accused engaged in conduct, being the completion and filing of particulars with respect to obtaining government paid benefits, to which she was lawfully entitled. She failed, however, to state accurately income that she was receiving at the various times or at the various periods in which the alleged offence occurred. Clearly, she meant to fill in the documents as she did, that is, including an understatement of her income. In respect of the results of her conduct, being the possibility of her benefits being reduced, it is arguable whether she was aware that such a result would flow in the ordinary course of events. I emphasise the words "possibility" and "ordinary course of events" because it is the case that not all income received will necessarily result in a reduction or withdrawal of the benefits paid. However, a further question arises and that is was she reckless with respect to the circumstance? That question can be answered by reference to the further question whether she was aware of a substantial risk that the circumstance existed or would exist. The case of Crowther v Sala [2007] QCA at 133 enunciated what had to be proved in relation to recklessness in these terms: "What had to be proved in this case was that the applicant was at least aware of a substantial risk that a reasonable person would regard her conduct as menacing" - that case dealt with somebody who made threats via telephone using a communications carriage - "and that it was unjustifiable to take the risk. That would require at least the proof that she realised that her words could be sensibly understood as a genuine threat." In respect of that last issue, the Crown, in the present case, refers to two occasions pre-dating the matters giving rise to these proceedings when she had been subject to proceedings for failing to declare her income in full and thus receiving an overpayment. By implication then, the Crown was arguing that those previous matters should have made her aware of the substantial risk that her failure to fully declare her income during relevant periods would result in her receiving an overpayment from the government. What is significant about what the court in Crowther v Sala said is the reference to proof of a realisation on the part of the accused as to what another person might understand. And it seems to this court at least that that is a very high hurdle for the Crown to get over in respect of these proceedings. Indeed, notwithstanding the manner in which she completed the forms that she needed to submit in order to secure her next payments on each occasion, it is difficult, in my view, to infer conscious awareness of the risk that was required. Nevertheless, notwithstanding that it may be properly inferred that she did or at the very least should have had such a realisation then the court can be satisfied that a prima facie case has been established. Notwithstanding that, the court may nevertheless direct itself according to the so-called Prasad principles. On this occasion, given that there is a bare inference that the present accused would have had the requisite realisation of the risk that her conduct would lead to her being overpaid benefits, the court is prepared to give itself the direction as invited by the defence and THE INFORMATION IS DISMISSED. 13 When the appeal came on for hearing before me there was no appearance for the Defendant. A Notice of Submitting Appearance had been filed by Solicitors for the Defendant on 27 March 2009. Mr Bourke of counsel, who appeared for the DPP informed me that discussions between his instructing Solicitor and the Defendant's Solicitor concerning the Submitting Appearance had led to the agreement whereby the DPP would not, in any circumstances, ask for costs of the appeal. The hearing then proceeded in the absence of the Defendant. 14 I was greatly assisted by the clear and concise submissions put by Mr Bourke on behalf of the DPP. I was further assisted by Mr Bourke, acting in the best traditions of the Bar and as a Crown Prosecutor, fairly putting to me, at my request, arguments that the Defendant might have raised in opposition to the submissions made on the appeal by the DPP. The way these submissions were put enabled me to consider the matter in a far more satisfactory way than if I had simply heard the argument of the DPP. Ground One - the Magistrate erred in determining the elements of the offence 15 The offence created by s 135.2 can be analysed in terms of the provisions in s 4.1 and Div 5 of the Code (s 5.6) in this way: (a) that the Defendant engaged in conduct (physical element = conduct; fault element = intention ) (s 5.6(1)) (aa) that as a result of that conduct, the Defendant obtained a financial advantage (physical element = result; fault element = recklessness ) (s 5.6(2))

(ab) that the Defendant knows or believes that she is not eligible to receive that financial advantage (physical element = circumstance; fault element = knowledge or belief )

(b) that the other person is a Commonwealth entity (absolute liability: s.135.2(1A)) 16 It is not contended that the Magistrate erred in relation to paras (a) or (b). It is in the consideration of elements (aa) and (ab) where error is asserted. 17 The element in para (aa) should, in fault terms, have been analysed by reference to recklessness. The learned Magistrate's reasons rather suggest that she conflated elements (aa) and (ab). That conflation points to the fact that she apparently regarded either intention or knowledge as the fault element for para (aa) and regarded the fault element of para (ab) as recklessness. 18 The learned Magistrate said in relation to the second element (para (aa)): "In respect of the results of her conduct, being the possibility of her benefits being reduced, it is arguable whether she was aware that such a result would flow in the ordinary course of events. I emphasise the words "possibility" and "ordinary course of events" because it is the case that not all income received will necessarily result in a reduction or withdrawal of the benefits paid." (at T5.3) 19 In my opinion, the Magistrate erred in categorising as the "result" of her conduct the "possibility of her benefits being reduced". Rather, the "result" of her conduct, according to para (aa), was whether she obtained a financial advantage for herself. The Magistrate ought to have considered that in terms of recklessness. Instead, she used the phrase (and emphasised it) "ordinary course of events" which is a phrase associated with intention (in s 5.2(3)) or knowledge (s 5.3). Recklessness is defined quite differently in s 5.4 and (subject to what is discussed below) has nothing to do with what will occur or will exist in the ordinary course of events. The key to recklessness is rather a "substantial risk". 20 I accept, nevertheless, that under s 5.4(4) proof of intention or knowledge will satisfy the fault element of recklessness. It is possible, in the circumstances, that the learned Magistrate had in mind that sub-section when discussing the results of her conduct although this has not been articulated in the Reasons. The problem with this approach is that it appears to be placing too high a test on the prosecution. All that is required is the establishment of recklessness although the section allows for the fact that if intention or knowledge is actually proved that will satisfy the fault element. Since there is no suggestion in the learned Magistrate's Reasons that she appreciated that recklessness was the fault element to be established in relation to this part of the offence, my conclusion is that she fell into error in this part of her analysis. 21 The further difficulty about inferring that the Magistrate was using s 5.4(4) is that her attention to the possibility of the Defendant's benefits being reduced shows that she was not focussing on the second element of the offence at all. That was an enquiry related only to the third element of the offence. 22 The learned Magistrate then went on to consider what must be the third element, being the Defendant's knowledge or belief that she was not eligible for receipt of financial advantage (para (ab)). This must be a consideration of the third element because the Reasons continue: "However, a further question arises and that is was she reckless with respect to the circumstance ? That question can be answered by reference to the further question whether she was aware of a substantial risk that the circumstance existed or would exist." (emphasis added)

The physical element of circumstance only relate to the third element found in para (ab). 23 Further, after a reference to the decision of the Queensland Court of Appeal in Crowther v Sala [2007] QCA at 133, the Magistrate picks up the consideration of this element by saying: "In respect of that last issue, the Crown, in the present case, refers to two occasions pre-dating the matters giving rise to these proceedings when she had been subject to proceedings for failing to declare her income in full and thus receiving an overpayment. By implication then, the Crown was arguing that those previous matters should have made her aware of the substantial risk that her failure to fully declare her income during relevant periods would result in her receiving an overpayment from the government." (emphasis added) 24 This is clearly the issue of her knowledge or belief, and recklessness was not the appropriate fault element. In my opinion, the learned Magistrate erred in that regard. This view accords with what Howie J said in DPP (Cth) v Parham Neamati [2007] NSWSC 746, at [14]; see also Stephen Odgers, (2007) Principles of Federal Criminal Law, Lawbook Co. at [5.1.110]. 25 A further indication that, on the third element, the Magistrate wrongly applied the fault element of recklessness appears from the following passage: (T5.42) "… given that there is a bare inference that the present accused would have had the requisite realisation of the risk that her conduct would lead to her being overpaid benefits …" (emphasis added)

Risk is a relevant consideration for the fault element of recklessness but not for knowledge or belief which was the relevant fault element for this third element in para (ab). 26 Her Honour then appears to introduce a new aspect in the consideration of this third element (in addition to referring again to risk) where she says (at T5.30): "What is significant about what the Court in Crowther v Sala said is the reference to proof of a realisation on the part of the accused as to what another person might understand. And it seems to this Court at least that that is a very high hurdle for the Crown to get over in respect of these proceedings. Indeed, notwithstanding the manner in which she completed the forms that she needed to submit in order to secure her next payments on each occasion, it is difficult, in my view, to infer conscious awareness of the risk that was required ." (emphasis added) 27 Her Honour seems to be suggesting that the DPP needed to prove that the Defendant had some realisation of what "another person might understand". That realisation may have been an element of the offence under consideration in Crowther v Sala but was not an element or a relevant consideration in the present offence although her Honour thought it was a high hurdle for the Crown to get over in the proceedings before her. In any event, the consideration was irrelevant and amounted to a further error of law in the consideration of this third element in para (ab). 28 In determining that the learned Magistrate has made a number of errors in her analysis of s 135 I do not intend to be critical of her, conscious as I am of the heavy workload of magistrates and the need for speedy decisions. However, I cannot overlook the fact that the Magistrate reserved her decision (that was thought to be a relevant matter in DPP v Adam Jones Lee [2006] NSWSC 270 at [11]) and the section of the Criminal Code under consideration had been recently analysed in terms of its fault elements in Neamati at [11]-[14]. 29 If this first ground was the sole ground of appeal, the Court would not allow the appeal because ultimately her Honour found that she could be satisfied a prima facie case had been established. Despite, therefore, arguably imposing on the DPP a higher requirement for satisfaction of the second element (para (aa)) and a lower requirement in relation to the third element (para (ab)) her Honour was satisfied that there was a prima facie case made by the DPP. From the DPP's point of view, that decision was a correct one even though reached by the wrong reasons. In such circumstances the appeal would not be allowed: Neamati at [6]. The errors are, however, relevant to the second ground of appeal. Ground two - the Magistrate erred in determining that a Prasad direction was available 30 In R v Prasad [1979] 23 SASR 161 at p. 163 King CJ said: "I have no doubt that a tribunal, which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that Tribunal considers that the evidence is so lacking in weight and reliability that no reasonable Tribunal could safely convict on it." 31 In R v Pahuja (1988) 49 SASR 191 at 201 King CJ said: The undoubted right of a trial judge to inform the jury of its power to bring in a verdict of not guilty at any time after the conclusion of the case for the prosecution, should be used sparingly and only when the judge is of opinion that the evidence for the prosecution, although capable in law of supporting the conviction, is insufficiently cogent to justify the verdict of guilty. Even in such a case, the judge should bear in mind that the evidence called by the defence might strengthen the prosecution's case." 32 In Dean v R (1995) 65 SASR 234 at [239] Cox J said: "Before leaving this topic I should refer to the learned judge's Prasad direction ( R v Prasad (1979) 23 SASR 161). There was nothing wrong with the way his Honour gave it; the question is whether it should have been given at all. This Court has previously expressed its concern about too free a use of the Prasad direction to bring a trial to a stop: see R v Pahuja (1987) 49 SASR 191 at 201, 217-219 and 224. In the present case the learned judge found that there was a case for the appellant to answer. There was no suggestion of the police witnesses being patently unsatisfactory or of the appellant being put to a lengthy but inevitably successful defence. Practically everything turned on the appellant's state of mind and that was a subject on which the jury was likely in the circumstances to be very interested in hearing from the appellant himself, as indeed they showed by their answer. All the indicators, in short, pointed to a continuation of the trial in the normal way. A Prasad direction should not be given merely because the trial judge considers that the Crown case is not a very strong one. That would be to usurp the function of the jury." 33 Having found that a prima facie case had been established, the learned Magistrate said this (at T5.40) "Notwithstanding that, the Court may nevertheless direct itself according to the so-called Prasad principles. On this occasion, given that there is a bare inference that the present accused would have had the requisite realisation of the risk that her conduct would lead to her being overpaid benefits, the Court is prepared to give itself the direction as invited by the defence and THE INFORMATION IS DISMISSED." 34 The DPP points to a number of matters indicating that the learned Magistrate erred in giving herself the Prasad direction and dismissing the information. (1) The Magistrate misdirected herself on the elements of the offence with the result that a Prasad direction should not have been given. (2) There is nothing in the Reasons that indicates her Honour had regard to the restrictions associated with giving a Prasad direction to herself including a consideration of the appropriate time to do so.

(3) The Crown case was not a weak one in any event and was sufficiently strong that it ought to have precluded the giving of such a direction to herself. (4) The absence of adequate reasons in relation to giving the direction in itself amounted to an error of law. 35 It is clear that a Prasad direction is concerned with the position where, although the tribunal of fact could lawfully convict on the evidence, to do so might be unsafe because of some weakness in the evidence. The present case, however, was not a weak one. 36 First, the Magistrate made a finding that the Defendant meant to fill in the documents as she did including an understatement of her income (T4.49 -T5.1). The documents tendered in the Prosecution case before the Magistrate support such a finding. There is a record of a telephone communication between the Defendant and Centrelink on 18 September 2007 where she informed Centrelink that her gross fortnightly wage was $806 (p. 351 of the exhibit). There is evidence in the Centrelink material that her gross fortnightly wage from the Commonwealth Bank was verified by Centrelink as being $1428.73 (p. 265). 37 Secondly, the DPP relied on letters of advice sent by Centrelink to persons who accessed its services including the Defendant. One such letter dated 26 June 2007 was headed "Your Centrelink Payment". It then went on to say: "Enclosed in this letter 1. Your reporting statement. This form tells you how to report your employment income and other changes in circumstances on your reporting days. … IMPORTANT Information about your Parenting Payment - Single If your family income has changed from what you previously told the Family Assistance Office, please call 13 6150 to provide a new estimate for Family Tax Benefit. You must report your earnings for the whole Centrelink Reporting Period, including the first and last day. Your Centrelink Reporting Period can be different from the period on your payslip. Use 'Your Earnings Worksheets' to help you record and work out how much you earned in a Centrelink Reporting Period. You can also find help in the booklet 'Reporting your Earnings: what you need to know'. Do you have any changes to declare? Make sure you understand all of the changes listed under 'Changes you must tell Centrelink about'. Otherwise you could get into debt to Centrelink and you'll have to pay the money back. …" (p. 208) 38 This is but one example of many letters sent to the Defendant commencing from 20 December 2002 and going up to and including the period referred to in the Particulars of the offence. 39 Thirdly, there were also documents called "Account Statements" which were sent to the Defendant. An example of such a statement is one dated 26 June 2007. The document relevantly read: "This Account Statement is for the period 4 Apr 2007 to 26 Jun 2007. Please check the information on this Statement carefully and tell us within 14 days if any information is incorrect, missing or needs to be updated. This request is an information notice given under social security law. You may find it convenient to keep this statement for your records. RATE OF PAYMENT - your future rate of payment may change depending on the amount of your earnings, other income or assets… Amount Hours worked"

and there then followed various fortnightly periods with reference to the Commonwealth Bank and amounts of money which the letter then went on to refer to by saying: "Your earnings shown above may be different from what you have told us about if we have received newer information. Amounts shown are fortnightly." (p. 120) 40 Fourthly, there was evidence of two occasions when overpayments were made by Centrelink when the Defendant had not declared her income in full from two previous employers being Freedom Group Ltd and Virgin Blue. The learned Magistrate made reference to those two occasions in her Reasons and noted that the DPP was arguing from those occasions that the Defendant should have been aware of the substantial risk of a failure fully to declare her income and that that would result in her receiving an overpayment. Mr Bourke informed me that the occasion concerning Virgin Blue was in fact an error by Centrelink, but the DPP relied on it as providing knowledge on the Defendant's part that if she under-declared her income she would be overpaid benefits which would have to be repaid to Centrelink because she was not entitled to receive them. 41 Finally, the DPP relied upon what was said to be the notorious fact that it is known in the community generally that if a person is a recipient of social security benefits there is an obligation to inform accurately of the person's income. It is not necessary to have regard to that knowledge to reach the conclusion on the basis of the other material that, far from the prosecution's case being a weak one, the case was a relatively strong one. 42 The learned Magistrate's reasons appear to be confined to the following: "[G]iven that there is a bare inference that the present accused would have had the requisite realisation of the risk that her conduct would lead to her being overpaid benefits, the Court is prepared to give itself the [Prasad] direction … and THE INFORMATION IS DISMISSED." (at T 5.42) 43 In my opinion, the Magistrate's decision to give herself a Prasad direction and to dismiss the information was an error for the following reasons:

(a) Nothing in her reasons indicated that the Magistrate understood that resort to a Prasad direction should be done sparingly. In addition to the authorities that I have referred to earlier, the High Court said in Doney v R [1990] 171 CLR 207 at [214], admittedly in the context of a jury trial: "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

(b) Since the learned Magistrate erred in her analysis of the offence by identifying the wrong fault elements, and therefore the level of proof needed, she could not properly have directed herself in relation to the Prasad direction. In particular, because of her wrong view that the third element involved a realisation on the part of the Defendant as to what another person might understand, which the Magistrate thought was a very high hurdle for the Crown to get over in proving the offence, her view that there was merely a bare inference about that realisation is necessarily infected with error.

(c) For the reasons given earlier this was by no means a weak case and was sufficiently strong that her Honour's discretion to dismiss the information miscarried.

(d) Her reasons for giving the Prasad direction are inadequate, in that they fail to refer to the proper principles in determining whether such a direction should be given, and refer to an inference available from an element that was not required to be proved by the prosecution. The failure to give proper reasons itself will be an error of law: Misfud v Campbell (1991) 21 NSWLR 725 at 728: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281. 44 The appeal the DPP brings to this Court is pursuant to s 56 Crimes (Appeal and Review) Act 2001 and it may do so "only on a ground that involves a question of law alone". 45 In Attorney General (NSW) v X (2000) 49 NSWLR 653 at [124] Spigelman CJ said: "The expression 'question' or 'point' of law is wider than 'error of law'."

However, for present purposes the difference appears to be irrelevant since I have already determined that the Magistrate made errors of law. What, however, the section appears to prevent is an appeal based on a mixed question of fact and law. It is important, therefore, to determine precisely when it is the error occurred in the course of the proceedings before the Magistrate. 46 Mr Bourke submits that there were three stages to the process. The first was when the Magistrate decided there was a prima facie case. The second was when the Magistrate had to consider whether or not a Prasad direction was appropriate. The third stage was when the Magistrate, having given herself a Prasad direction, decided whether or not to dismiss the information. Mr Bourke submitted that errors at the first two stages would amount to errors of law whereas an error of the third stage would be an error of fact. 47 In my opinion, this analysis is correct. The error of law (as articulated in the second ground of appeal) occurred at the second stage in deciding that a Prasad direction ought to be given. Because the Magistrate misunderstood the elements of the offence and what was and was not required to be proved by the Prosecution she misdirected herself about whether the case was an appropriate one for the giving of a Prasad direction. In addition, she failed to give proper reasons for her decision. 48 For these reasons, in my opinion, the second ground of appeal has been made out.

Grounds three and four - costs 49 When the learned Magistrate dismissed the information the Defendant's counsel sought costs under s 214(1)(c) of the Criminal Procedure Act 1986. That section provides: (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:

… (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," …" 50 When Mr Coyne (for the Defendant) was asked on what basis the application was put, he said this (at T6.8): "I'd be looking at 214C (sic) and I would be looking at the evidence that was given by Ms Johnson that when she made her decision to proceed with the prosecution, she was armed with all the same information that was also before the other person who'd also come to the conclusion that she hadn't done so knowingly. She was armed with no further information than that, but for a conversation that she had with Ms Acevedo where Ms Acevedo was invited to come in for an interview, told it was non-compulsory, she took up that offer and decided not to come in. But there was no further information and then she finds herself before this court." 51 Ms Steell for the DPP referred to evidence given by Ms Johnson about the role of the other person whom Mr Coyne referred to. She said that the role of that person was not to investigate all the circumstances surrounding the overpayment but to get some basic initial information from the person and then either refer it to prosecution or not. 52 Mr Coyne's response to this was (at T7.8): "If you recall the cross-examination of Ms Johnson, I went through the four actions which could be taken - do nothing, get them to repay, add a 10% fee on top of it, a recovery fee. Now this person was empowered to make that determination and the determination was having spoken, Ms Acevedo did not knowingly and because of that didn't even impose the extra 10%. So we've gone from something which is the third highest category, we've jumped ahead of that with no further information to the highest category of prosecution." 53 Her Honour then gave what must be regarded as her Reasons for awarding the costs to the Defendant and they were (at T7.16):

"Thank you. In the circumstances I accept what Mr Coyne puts to me having, thank you, revived my memory about the cross-examination and in the circumstances I'll allow the application. In what amount are you seeking costs?" 54 Unfortunately, the transcript of the hearing on 24 November 2008 was not available because of problems in the quality of the recording. Accordingly, what was actually said in cross-examination is not known beyond Mr Coyne's summary of it set out above. Moreover, it seems likely from the way the Magistrate gave her brief reasons that she might have remembered other aspects of the cross-examination although those aspects were not disclosed. 55 Because of the absence of the transcript I do not consider that I have sufficient material to make a decision about whether the order for the payment of costs by the Magistrate is correct. I accept that, whilst costs are ordinarily a discretionary matter, the Magistrate was bound to make her order consistent with s 214(1)(c) if she was to make an order in favour of the Defendant. The general principle covering the payment of costs by the prosecutor is to be found in s 213(1) which provides: "(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."

However, the matters in s 214(1) provide exceptions to that general rule. 56 At the outset of the hearing of the appeal before me, Mr Bourke drew attention to the absence of the transcript of the hearing before the Magistrate and informed me that his instructing solicitor had prepared a summary of her recollection of events at the hearing and the essence of the cross-examination that took place. I declined to receive that information because it had not been made available to the Defendant or her solicitor. 57 I accept that the Reasons given by the Magistrate for making the order for costs were inadequate but whether the order should have been made in any event is now not able to be determined because of the absence of the transcript. Because, in any event, I have found that the second ground of appeal is made out and I intend to make orders quashing the Magistrate's orders and remitting the proceedings to the Local Court, the order for costs made by the Magistrate will itself also be quashed as an incident of the quashing of the Magistrate's order dismissing the proceedings. What Orders should be made? 58 The DPP seeks orders that the Magistrate's orders dismissing the charge and ordering the Crown to pay the Defendant's costs should be set aside. For the reasons I have given those orders will be made. The DPP seeks a further order that the matter be remitted to the Local Court to be heard according to law by way of a fresh hearing before a different magistrate. 59 Section 59(2) Crimes (Appeal and Review) Act 2001 provides: "(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c) or (d) or 57 (1) (b) or (c): (a) by setting aside the order and making such other order as it thinks just, or (b) by dismissing the appeal." 60 Section 66 of the Act provides: "If an appeal court remits a matter to the Local Court and the Magistrate who made the original conviction or order or imposed the original sentence: (a) has ceased to hold office as a Magistrate, or (b) is for any other reason unable to continue to hear and determine the matter,

the matter is to be dealt with by another Magistrate nominated by the Chief Magistrate." 61 I note that Howie J in both DPP v Adam Jones Lee at [68] and DPP v Neamati at [6] took the view that s 59(2)(a) entitled him to remit the matter to the Local Court to be heard by another magistrate but in both cases he made no reference to s 66 and he noted that it was not disputed that such order could be made. 62 I expressed some doubt to Mr Bourke in the light of s 66 which suggested to me that the ordinary course was that the matter ought to be remitted to the magistrate who first heard the matter. However, Mr Bourke drew my attention to the decision in CDPP v Bozana Fabri [2008] NSWSC 655 where Rein J concluded that s 66 should not be read as a fetter upon the jurisdiction given to the Court under s 59. In those circumstances, I consider that I should follow the approach of Howie J and Rein J and remit the matter to the Local Court to be heard by another magistrate. Orders 63 The Orders are:

(2) The orders of the Magistrate dismissing the information and ordering the Crown to pay the Defendant's costs are quashed.

(3) The proceedings are remitted to the Local Court to be heard before a different Magistrate.

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