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)