De Varda v Constable Stengord

The Magistrate's reasons 15The Magistrate's reasons were given ex tempore as follows: HIS HONOUR: This is an application for costs pursuant to the Criminal Procedure Act , s 214, places a limit on an award of professional costs to accused persons against a prosecution acting in a public capacity. In other words, this is not like in a civil jurisdiction where the winner often or usually gets costs. Costs usually follow the course. Parliament has legislated to make it an uneven playing field and the defence bears the burden of satisfying one of the elements of 214 before an order for costs can be made. That onus is on the balance of probabilities. In general terms, let me start by saying that I agree with the submission that the Court must view this from the perspective of a defendant where the full weight of the law and all the agencies of the police are, and prosecuting authorities are thrust against an individual. I say that because it must be seen, whilst the Court, I, and those of us who work in this area become hardened by the many, many thousands of AVO, the domestic violence matters that we see every day in the courts. The individuals who are charged and are concerned, this is their, for want of a better word, their marvo [sic]. It is the most important case in the world to them and in this case we have a 63-year-old man with no prior convictions, a professional who sits on boards and travels overseas regularly. There is a lot at stake, not just his good reputation, but also what he is accused of is assaulting his for want of a better word, step-daughter, occasioning her actual bodily harm by throwing something at her, which then bounces or shatters and cuts her in a manner that occasions actual bodily harm. So the consequences are serious and of course, he is entitled to defend himself. The two-stage test that I am going to apply and I have not heard anything of the second stage yet, so I will first consider the first and then if necessary, consider the second. The first, of course, is whether a costs of order [sic] will be made and the second is whether those costs that are submitted are just and reasonable. Keeping in mind, the matters that I have already referred to about the serious nature of the charges as far as the defendant is concerned, I also have to keep in mind that the test that is to be applied under 214, is not what is the best practice that could be applied in the circumstance. It is not to approach it with some 20/20 vision and say, the police could have done better, therefore they should get an award for costs. The test of reasonableness within 214, or the test 214(1)(c) unreasonableness is to be viewed in, not in the light of what is the ultimately best police practice they should do but what is reasonable. That is on an objective standard, what ought the police to have done or not done in the circumstances of a particular case. Here is what the police were confronted with on the night that they attended. They were confronted with an injury. They were confronted with a version that has been given by the complainant that she had something thrown at her which has shattered and cut her, that it was done in anger and it was done using the tone [sic] loosely, deliberately. That version of events was supported by the complainant's mother, Philippa. She, on the night, she made a statement that supported that version. They also were dealing with, I know that all of this was in evidence. Some was disputed and some was not, but let us, it was quite clear the police did not believe the genuineness of the complaints of the defendant about the way he was being treated, held in the van, and they thought it was a big carry on. That is what they were dealing with. They then, which is, and that is perfectly normal domestic violence type case. Indeed, it is strong because there is an injury, there is the complainant, there is the complainant's mother, all saying that the defendant, each saying, I should say, that the defendant did this. The defendant, or course, is saying he did not. As I say, that is not an unusual situation. Then, in the days following, the complainant's mother quite clearly jumps sides, and it is quite clear that the investigating officer who under the legislation, is referred to as the prosecutor, although that role changes from time-to-time depending on what stage the case is at. Clearly, the tenure of her evidence is she does not believe for a minute this change of view by the complainant's mother. She thinks that it just quite clearly, her evidence is, that she thinks it is somebody just changing their mind. Quite clearly, the officer believed the complainant. Now, what is the prosecution's duty in those circumstances? In my view, it is not at that point unreasonable, not to re-interview or take a statement from Philippa. The reason for that is because they put in, the officer did the right thing, put in a statement what Philippa had said in the first place, put in a statement what Philippa had said in the second place and put that statement before the Court, sorry, to the other side and actually called that witness. In my view, it is not unreasonable, that is not an unreasonable approach. It may not be a perfect approach and in a case of with 20/20 vision, could a statement have been taken should a further investigation have been made in the cool light of day looking back after SCs and prosecutors and magistrates view all of the evidence. Well, that is certainly not the test that is going to be applied in this case. Then in the scenario we have the defendant write a very lengthy letter to the Police Commissioner. Contained within that letter or attached to that letter is a statement by his son, Harris [sic], and further evidence, I have not forgotten about the tracksuit pants, and I will come back to them. In those circumstances, should the police have interviewed Harris [sic]. This is a difficult area. Harris [sic] was 13 at the time and the police were confronted with a situation of well, will I interview a 13 year old child who is clearly saying that he saw the complainant cut herself, what would the point of taking that statement have been? I mean, we can all say, yes, it should have been, and perhaps a statement should have been taken in retrospect but actually what benefit would have been achieved by that . A statement would have been taken saying exactly the same thing and that witness could have been called. The prosecution would have said that it is contrary or unfavourable to their case. He could have been cross-examined and perhaps some time would have been saved in the proceedings as a whole. I do not discount that that is the appropriate steps and indeed, I think in a decision, I think my decision is reported in a case of R v Ellery in the Local Court website of 21 June, sorry, reported the date of decision was 31 August 2010. I deal with this issue in some detail in a situation where there was a person present at the scene of a crime who the prosecution did not call because they saw him as being in the defence camp. That is not the situation here. It was the defendant himself, wrote a letter enclosing the statement of the young person and it is arguable that the police should have taken a statement, called him and gone through the process, but in the context of a 13 year old, in the context of the domestic situation that it was and the context of how clear and black and white his statement was, clearly the obligation would have been best prosecutorial obligation would have been best served by the prosecutor putting that before the Court, but in all the circumstances in my view, it is not unreasonable to not do so. Again, it is not being put to me that it is because that witness was in the camp, it is being put to me because there is a public policy about not second-guessing a police officer's decision not to interview a witness who is aged 13 and who is clearly and obviously part of the family where this incident has occurred. My own view, is that he should have been interviewed. It would have been better if he was but again, it is not unreasonable within the meaning of 214 that he was not. I say that particularly because if he was, what difference would it have made? The prosecution called him, as I say, there could have been time saving perhaps if a Prasad or if what could only really have been a Prasad was sought. That would not have occurred in this case. So now returning to the tracksuit pants. The tracksuit pants, indeed, provided a piece of evidence that supported the defence case strongly. They provided it because it showed no visible signs of being cut by the piece of glass of such that it would have led to the [sic], as the complainant described it. That was brought to the attention of the police at an early stage. In the end, the defence kept the tracksuit pants, had it expertly analysed and it was clear, the evidence, and it was a crucial point in the case that was clear, the weight of evidence was that those pants had not been damaged in the way by a shard of broken plates that caused the injury. At least one could not be satisfied beyond a reasonable doubt following evidence. What are the prosecution's obligations at that time? As I understand it, certainly it would have been again, better practice for those pants to be seized and to ... (not transcribable) ... and to have been forensically analysed by a prosecution expert. It should not be, and one of the reasons for these costs rules is that it should not be up to the defendant to prove their innocence where the prosecution has an overall obligation to prove their guilt. Again, in this case, it would have been better had that been done. In a circumstance where the officer has the statement of a complainant as to what has occurred, where it is a relatively minor or certainly the injury was minor, and please correct me if I am wrong, but it did not involve stitches or anything of that sort. To what extent is it necessary for the police to go to? In Ellery's case which I have referred to earlier, one of the complaints was that police never sought fingerprint evidence off a bag that had been thrown into a urinal containing, allegedly thrown into a urinal containing drugs. A police officer gave evidence as to why he did not do that test, (1), it was a minor charge, (2), it would have been unlikely to contain any material evidence and (3), is the overall expense of conducting that sort of investigation for a relatively minor matter. Now, when I say a relatively minor matter, I am not downplaying the importance to the defendant of a criminal conviction for this type of matter. But there is a limit to the extent to which the police ought reasonably go to investigate a relatively minor domestic assault of which there are literally thousands before the courts at any one time. Now, what the defence seems to be saying is that they should have seized the item when offered to them. Then they should have had it forensically examined by some sort of expert and we have seen the cost of that. The cost of that is contained in the defendant's material that they put forward today and the cost is considerable. Cost of the sort of forensic examination that is required of an item to see if a cut was possible through the tracksuit pants was considerable. As I understand Officer Spengold's [sic] evidence, she seems to have been either confused or mistaken as to the pants that were being worn at the time. After all, again, please interrupt me if I am wrong, but at the time of the walk-through and at the time of giving of a statement, she was not wearing tracksuit pants at all, she was wearing green shorts. The tracksuit pants have been left on the floor upstairs. In my view, it would have been ideal for those track pants to be seized at the time and for that recognition to have been made by the officer. Again, it would have been ideal, the best practice for those pants to have been tested by the prosecution in the manner described and the belated attempt to get them was indeed belated. It was after the matter had come to Court and I can understand the reticence to supply them. Suffice to say, that the defence did end up getting that evidence as to expert evidence. It seems to me that, again, it is necessary to draw a distinction between an ideal investigation in a case of this type and the practicalities that the Court must take into account. It would be terrific if we lived in a CSI world where everything could be tested to the ultimate degree as is required, which would be in accordance with the submissions of the defence. The reality is that it is not where in circumstances such as this prosecutor was confronted with, that is the police officer was confronted with the complainant's statement, the vacillation of the mother, the statement of Harris [sic] and the relatively minor domestic assault. In those circumstances, to have not seized the tracksuit pants in an ideal period of time and had them forensically tested is not, in my view, unreasonable. Just one moment, please. The ambulance officers and the photographs really only became relevant because expert evidence was given as to the nature of the wounds and the potential for those wounds and scratches to have been caused, other than, in the method described. Again, of course, it would be better if every witness is called and I agree with the submissions of the defence that it would be best practice, it would be ideal. Similarly, it would be better if the quality of the cameras and the professional training of the officers was greater in terms of the photographing of injuries. But that does not mean that an investigation was unreasonable or that there was unreasonable failure to investigate something which suggested that the accused person might not be guilty of, or for any other reason the proceedings should not have been brought. In my view, the investigation in this case, in the context of this offence was not unreasonable within the meanings of s 214(1)(a) or (c), and accordingly, the application for costs is denied. If I were wrong as to that and it was necessary to consider the accounts, I will say only this, it is necessary for people, of course, to be able to obtain the best legal representation. And I am ... (not transcribable) ... for a moment with using senior counsel in the Local Court, particularly for a charge of this kind, there was no junior, there was only I think, an assistant solicitor instructing. I am correct, there was no junior. However, for a four day hearing to be confronted with a $65,000 bill for counsel, no matter what the level of preparation and views and the like, that seems to me to be extraordinary. THE APPLICATION FOR COSTS IS DISMISSED. (Emphasis added)

The submissions 16The Plaintiff submitted that the Magistrate made a jurisdictional error in that he asked himself the wrong question in determining the question of unreasonableness in paragraphs (a) and (c) of the section. The wrong question was said to be, in respect of the evidence of Paris, "what difference would it have made [if Paris had been interviewed]?" The Plaintiff submitted that this was a jurisdictional error in the terms referred in Craig v The State of South Australia (1994) 184 CLR 163 at 177. 17Although the Defendant did not directly address the issue of whether the Magistrate asked the wrong question, the Defendant submitted the Magistrate approached the question of unreasonableness correctly by taking into account appropriate considerations. 18The Plaintiff submitted further that errors of law on the face of the record were demonstrated by the Magistrate's reasons in relation to the failure of the police to take a statement from Paris and to examine the tracksuit pants. The Plaintiff submitted that the Magistrate took into account 2 irrelevant considerations in considering the matter of Paris's evidence. The first was by asking himself "what difference would it have made?". The second irrelevant consideration was that Paris was 13 years of age in the context of the domestic violence offence. 19The Defendant submitted that both of these matters were relevant. It was appropriate, the Defendant submitted, to consider the situation of the potential witness (his age) in order to assess the omission by the investigators. It was submitted further that considering what difference his evidence would have made was relevant because of the likelihood that he would have been unfavourable and, therefore, cross-examined on that basis. 20In relation to the tracksuit pants, the Plaintiff submitted that the Magistrate took into account the following irrelevant matters: (1) that it was necessary for the tracksuit pants to be forensically examined before they were of any use to the investigator's assessment as to the relevance of the evidence; (2) that the investigator performed a weighing exercise in terms of assessing the cost of having them forensically examined as against the seriousness of the offence charged; and (3) that the matter constituted a "relatively minor domestic assault". 21The Defendant drew attention to what was said by Simpson J in R v Manley [2000] NSWCCA 196; (2000) 49 NSWLR 203 at [76] about the information in possession of the prosecuting authorities, bearing in mind that a criminal prosecution is essentially adversarial. The Defendant submitted that investigation was a balancing act, and that the Magistrate had considered a number of appropriate matters in assessing the reasonableness of the investigation. Jurisdictional error 22In Kirk v Industrial Court of NSW [2010] HCA 1; (2009) 239 CLR 531 the High Court discussed what amounted to jurisdictional error with reference to what had been said in Craig. The High Court first noted the distinction made in Craig between administrative tribunals and inferior courts. It then said this about what had been said in Craig : [72] First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes , R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union . [73] As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that - examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example. [74] The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act , the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. 23In the present case, if the Magistrate asked himself the wrong question when considering the question of unreasonableness in s 214, this would be a misconstruction of the relevant statute within the third area referred to in Kirk at [72]. 24It seems clear that his Honour tested the question of reasonableness by asking what difference it would have made if Paris had been interviewed. In this regard, his Honour said: It would have been better if he was but again, it is not unreasonable within the meaning of 214 that he was not. I say that particularly because if he was, what difference would it have made? 25That this was his Honour's concern was made clear a little earlier in his judgment where he said: What would the point of taking that statement have been? ... but actually what benefit would have been achieved by that. 26His Honour, in that way, seemed to regard the touchstone of reasonableness as whether it would have changed the way the trial ran. So, he referred to whether time would have been saved in the proceedings and whether a Prasad direction could have been sought and/ or made if the prosecution called Paris as a witness. His Honour's focus on the procedural aspects of the running of the trial and how they would have been changed by a different investigation can also be seen in that part of his judgment where he deals with the changed statement of Mrs De Varda. 27In Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 the primary judge had considered section 70 Crimes (Local Courts and Appeal Review) Act 2001 (relevantly identical to s 214 Criminal Procedure Act 1986) by reference to whether there would have been a different outcome. 28In that case there was a failure by the prosecutor to call a particular witness. The trial judge said he could not determine what the outcome would have been if that person had been called to give evidence. The trial judge said he would not have been able to be satisfied that that person's evidence would have suggested the appellant might not be guilty, or that the proceedings should not be brought. 29It was argued that the trial judge fell into error by holding that he could not be satisfied that the requirements of s 70(1) had been made out because he could not determine what the outcome would have been if the witness had been called. 30Hodgson JA (with whom Howie and Price JJ agreed) said: [20] As regards s.70(1)(c), it could be said that a person seeking costs must identify a matter that the prosecution was or ought to have been aware of and that suggested that the appellant might not be guilty or that the proceedings should not have been brought. If the "matter" in question here is that there was a possible eye-witness, then it was not shown that this matter suggested that the appellant might not be guilty. If the "matter" in question is the evidence that that witness could give, although it could be said that the Council should have been aware of it, it was not shown that this evidence suggested that the appellant might not be guilty. Accordingly, in relation to s.70(1)(c), I do not think error by the primary judge was shown. [21] However, in relation to s.70(1)(a), I do not think it is necessary for the person seeking costs in every case to show that an investigation conducted in a reasonable manner would have suggested that the appellant might not be guilty or that the proceedings ought not to be brought. If a prosecutor knows there are five eye-witnesses to an event, and interviews and calls only one of them, and the prosecution then fails, I think s.70(1)(a) may apply even if the person seeking costs does not prove what the other four witnesses would have said. Similarly, closer to this case, if the prosecutor knows there is an eye-witness to what happened, but does not interview this witness, and instead relies wholly on a circumstantial case, in my opinion s.70(1)(a) may be satisfied even if the person seeking costs does not prove what the eye-witness would have said. 31In relation to s 214(1)(a), therefore, that paragraph can be satisfied without proof of what an uncalled witness would have said. It is enough that, if the prosecution interviews and calls fewer than the available eye-witnesses, s 214(1)(a) may apply. A fortiori, if the witness who was not interviewed and called would have thrown a different perspective on the matter, the paragraph may apply. 32The question to have asked was not whether interviewing and calling Paris would have made a difference to the way the trial would run, but whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner. Further, when the statement of Paris provided strong support for what the Plaintiff had said to police at the outset (that the Complainant had deliberately cut herself), His Honour should have considered whether the investigation was unreasonable in terms of para (c). That may have been by asking himself what difference it would have made, not to the way the trial would run, but to whether the Plaintiff might not have been guilty or that the proceedings should not have been brought. Nothing in that approach is inconsistent with what was said in R v Hunt [1999] NSWCCA 375 at [9] about the absence of a requirement in s 41A Justices Act 1902 (relevantly identical to ss 212 and 214 Criminal Procedure Act ) of a connection between the basis on which an order for discharge is made and the facts, matters and circumstances about which the Magistrate must be satisfied before making a costs order. 33The result is, therefore, that in asking himself the wrong question, the Magistrate misconstrued the relevant statute with the result that he misconceived the nature of the function he was performing and the extent of his powers. That is a jurisdictional error justifying certiorari.

Irrelevant considerations 34In case I am in error in concluding that the Magistrate made a jurisdictional error I should deal with the submissions concerning the taking into account of irrelevant considerations. 35In Craig it was said that if an administrative tribunal took into account irrelevant considerations such an error of law would be a jurisdictional error (at 179) but this would not be so if the decision maker was an inferior court (at 180). If it can be shown, however, that there was an error of law on the face of the record that will provide a sufficient basis for certiorari. 36In my opinion, if the Magistrate took into account irrelevant considerations there will be an error of law: Craig at 179. If that appears in his reasons it will be an error of law on the face of the record: s 69 Supreme Court Act 1970.

(a) Matters concerning Paris 37The Magistrate does not explain why Paris's age was the relevant matter rather than the substance of his evidence. In the first place, the Magistrate says that Paris should have been interviewed. Secondly, he refers to the fact that Paris was 'clearly saying that he saw the complainant cut herself". That was crucial evidence on the charge of Assault Occasioning Actual Bodily Harm. Thirdly, it is not self-evident that there is a difficulty about a 13 year old child giving evidence. 38Despite these matters, the Magistrate said that it was not unreasonable within the meaning of s 214 not to have interviewed him. The only apparent reason is that doing so would not have made any difference or there would have been no point, because on two occasions the Magistrate mentions Paris's age he asks himself that question. He also refers to Paris being 'clearly and obviously part of the family where this incident occurred', as if that was a disqualifying factor. Yet all of the other witnesses were members of the family. This was at base a domestic dispute, although the Plaintiff was charged with a serious criminal offence. 39Although, as Cliftleigh made clear, para (a) was not really concerned with the evidence which would be given by the missing witness, para (c) was. Paris's evidence entirely supported the Plaintiff's account that he did not injure the complainant but that she deliberately cut herself. Taken together with the revised statement that Mrs De Varda wished to provide, all of that suggested that the Plaintiff may not have been guilty of the offence charged. 40What was relevant in relation to Paris's evidence was the substance of that evidence and not his age. Accordingly, the Magistrate took into account an irrelevant consideration, and thereby made an error of law on the face of the record.

(b) The tracksuit pants 41The Magistrate approached this issue by emphasising two matters - the extent of the investigation which the police needed to undertake, and what he described on two occasions as a "relatively minor domestic assault". He linked both of these matters to the cost of forensic examination. There was no evidence (and this was accepted by the Defendant) to suggest that the reason the police had not seized the tracksuit pants was because a forensic examination would be expensive. 42Moreover, the Magistrate said: The tracksuit pants, indeed, provided a piece of evidence that supported the defence case strongly. They provided it because it showed no visible signs of being cut by the piece of glass of such that it would have led to the [sic], as the complainant described it. If that was so, the tracksuit pants were strong evidence supporting the Plaintiff's account (as well as Paris's) without any forensic examination. In the face of that finding, a consideration of the cost of a forensic examination, particularly when that was not a reason put forward by the prosecution, was an irrelevant consideration. 43Further, the Plaintiff was charged with a serious criminal offence carrying a maximum sentence of 5 years' imprisonment. A consideration of the cost of forensic examination against the designation of the matter as a "relatively minor domestic assault" was an error of legal principle. This was also an error of law on the face of the record. 44There are no discretionary matters which would justify a refusal to issue orders in the nature of certiorari and mandamus, and none was suggested by the Defendant. 45The Plaintiff also seeks in his Summons that this Court order reasonable costs in his favour, presumably the costs in the Local Court. This is not, however, a merits review. There is no appeal to this Court from the Magistrate's refusal to order costs in favour of the Plaintiff. Conclusion 46I make the following orders:

1. An order in the nature of certiorari removing into the court the determination of the Local Court (Magistrate Heilpern) made 2 February 2011 in the proceedings Police v De Varda and quashing that determination.
2. The matter be remitted to the Second Defendant to be determined in accordance with the reasons of the court and according to law.
3. The First Defendant is to pay the Plaintiff's costs of the proceedings.

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