Dhaliwal v R

Category: Costs

Parties: Amarjeet Dhaliwal (Applicant)
Rex (Respondent)

Representation: Counsel:
M Licha (Applicant)
M Romelingh (Solicitor) (Respondent)
Solicitors:
Pannu Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2022/364780

Publication restriction: Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the Complainant or may lead to the identification of the Complainant

JUDGMENT

1. The Applicant was charged with a common assault against his wife. At all times, the Crown was required to establish beyond reasonable doubt that the Applicant deliberately dragged the Complainant, at least some distance, by grabbing her by the hair.

2. The Applicant was convicted by Local Court Judge Shields at the Local Court at Blacktown on 25 March 2024.

3. On 5 November 2024 I allowed an appeal against the Applicant’s conviction. This judgment ought be read in conjunction with my reasons for allowing the appeal.

4. The Applicant applies for Costs pursuant to s 70 of the Criminal (Appeal and Review) Act 2001 (NSW) (‘CARA’). The Applicant submits that:

5. Costs ought to be awarded to the Applicant if the Court finds the conditions set out in s 70(1)(a-c) of the CARA are satisfied.

6. If the Court only find conditions satisfied as to s 70(1)(d) of the CARA, then the Applicant would only be entitled from day three of the hearing in the Local Court onwards.

7. The Applicant submits that after day two of the hearing in the Local Court, the Police Prosecutor should have withdrawn the matter, as it was clear by the time the two eyewitnesses, Ida Takac and Goran Rokvic, gave their evidence, that the charge of Common assault could not be made out.

8. The Applicant also applies for a Certificate pursuant to section 2 of the Costs in Criminal Cases Act 1967 (NSW) (‘CCCA’) arising from the lack of evidence of an element of the offence.

9. The awarding of Costs and the granting of a Certificate are opposed by the Director of Public Prosecutions ("the Director").

Legal Framework - CARA

8. The Court is empowered by the CARA to make an order for costs “as it thinks fit.”

9. Section 70 of the CARA provides that only in certain circumstances, are costs payable by the prosecutor, namely where:

10. The investigation into the alleged offence was conducted in an unreasonable or improper manner;

11. The proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner;

12. The prosecutor reasonably failed to investigate (or to investigate properly) any relevant matter; or

13. Because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the Applicant.

14. The Applicant relies on Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728, at [30]:

"Finally, the test to be applied in relation to the expression "without reasonable cause" is similar to that adopted in an application for summary judgment, viz "so obviously untenable that it cannot possibly succeed", "manifestly groundless" or "discloses a case which the Court is satisfied cannot succeed": see Heidt at 272-273; Geneff v Peterson (1986) 19 IR 40 at 87-88; Hatchett at 327 and Crozier at [12].

Legal Framework – CCCA

11. Where a person is ultimately acquitted, as is the case here, s 3 of the CCCA provides that a certificate states in the opinion of the court or judge granting the certificate:

12. If the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts it would not have been reasonable to institute the proceedings; and

13. That any act or omission of the defendant that contributed or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

14. Subsection 3(b) of the CCCA is not in issue. I find that any act or omission of the Applicant that contributed to the institution and continuation of the proceedings, was reasonable in all the circumstances.

Relevant Facts

13. There was no evidence given in the Local Court capable of supporting a finding of common assault as particularised.

14. Ms Takac saw all of the event. She described the Applicant trying to lift the Complainant and the Complainant being grabbed under the arms, with her upper body being held in a hugging-type motion.

15. Ms Takac provided no evidence as to any grabbing by the hair.

16. The only other eyewitness, Mr Rokvic, said that he saw the Applicant lifting and pushing the Complainant in front. He said that the Applicant was “kind of leaning on the side like this, like that, he was going to be under like from here like this," also indicating the midthoracic region.

17. Mr Rokvic said that the Applicant grabbed the Complainant and her “hair was everywhere” and that he had one hand “around the hair." He said the Applicant had his “Hand in [the Complainant’s] hair because she had long hair."  He said, “Because her long hair was everywhere, [he] got the impression like he was pulling her hair, but [he] did not know.” He said it looked that way, but he was not sure. He said that he could not describe that “macro detail.” He was asked if he could be mistaken about his impression of the hair being pulled. He said, “To be honest with you because the hair was everywhere, look hand was around head area, it looked like that, yes." He also said, "I don't remember all those little details because for me that [sic] all movement was shock from what I see." He said, “It looked like he [sic] pulling her hair but in the same time I can't agree with the particular micro explanation”. He said, “It looked like he [sic] pulling her, not pulling hair, pulling with her hair, yes."

18. On the costs application, the Respondent relies particularly on the transcript of the proceedings on 28 November 2023 at page 34, lines 3-23 where Rokvic gave evidence as follows:

Q. You would agree that you did not actually see him pulling her hair physically, correct?

A. Look again, I'm going to say it look like he pulling her, not pulling hair, pulling her with hair. Yes.

Q. Okay. So it looked like he was pulling her with hair.

A. Look, let's say that's a lady and I'm struggling.

Q. You've just got your left hand just sort of cradling her in like a hug type motion.

A. This hand kind of it's more like kind of like that.

Q. So like a carrying motion. You're indicating with your left, towards the left side of your body like you're carrying something.

A. Not carrying, it's pulling, pulling the body.

Q. Pulling, carrying.

A. Dragging.

Q. Dragging.

A. More dragging, not carrying.

19. In a case that depended on the Court being satisfied that the Applicant deliberately pulled his wife off the road by the hair, I find that if this is the prosecution’s evidence at its highest, it could not sustain the charge of common assault. I found as much in the Judgment when all of the evidence was considered.

20. There was no evidence from which one could conclude that the only logical, rational or reasonable inference was that the Applicant was deliberately pulling his wife’s hair. The prosecution could not discount the reasonable possibility that she may not have been pulled by the hair at all, or that the Applicant was caught up in the Complainant’s hair as he tried to lift her at the torso (something which both witnesses observed).

21. The Complainant could give no evidence as to the incident as she was unconscious.

22. On 5 October 2024, when I heard the appeal, the Director’s prosecutor conceded during the Appeal that the offence could not be made out. Error in the Local Court Judge failing to direct on good character having been conceded, the following exchange took place:

HER HONOUR Madam Crown, where is the high point in the Crown case on a deliberate grabbing of the hair and dragging because I didn't see it anywhere?

ROMELINGH: The highest it comes in the evidence, your Honour, is in the evidence of Mr Ro**kvic.

HER HONOUR: I just don't see a deliberate pulling of hair either. I don't see a single witness saying anything that would support a finding that the hair pulling was deliberate and, trust me, I did go looking.

ROMELINGH: Yes, your Honour, and I must concede I can't point to that in the transcript either.

….

ROMELINGH: Certainly, your Honour, I don't have instructions to concede the appeal but I recognise that the highest I can put the Crown case is as commences on p 28 and that when looking at it afresh certainly it isn't the most secure evidence in relation to any dragging by the hair.

HER HONOUR: Does the Crown accept that it doesn't constitute proof beyond reasonable doubt?

ROMELINGH: Yes, your Honour.

23. Relevantly, the Applicant also relies on the following factual matters, which were not challenged by the Respondent:

24. The hearing proceeded over three days on 18 April 2023, 28 November 2023, and 25 March 2024.

25. The Applicant moved the unconscious complainant off the road.

26. In the gathering of evidence, the police questioned one witness who could not speak English, using another witness as an interpreter.

27. The witness used to interpret was not an accredited interpreter, and that witness heard the version of another witness.

28. The Applicant was charged with common assault after the police arrested him and formed the view that a dangerous driving charge would not be successful.

29. No evidence was obtained from the complainant when later spoken to by police.

30. Both civilian witnesses gave evidence on 28 November 2023, day two of the hearing.

Consideration of the Issue – CARA

24. The investigation into the alleged offence was conducted in an unreasonable or improper manner in the following respects:

25. The witnesses were spoken to in the presence of each other, irrevocably contaminating each other’s evidence.

26. Statements were obtained from witnesses who clearly needed suitably qualified interpreters to give their accurate account. Such interpreters were not provided. Rather one witness acted as an interpreter for the other, where they were not proficient in that language, let alone an expert interpreter. There was no reason the taking of statements could not have been delayed so as to have an interpreter assist in the preparation of the statements.

27. In the event, police failed to get specific evidence regarding the assault. The evidence given at the Local Court hearing made it clear that, had they obtained such an interpreter for each witness, it would have been clear that the case of assault, by the Applicant deliberately pulling his wife’s hair, could not be made out.

28. Such evidence as they did obtain showed that the two witness accounts were to some extent inconclusive or inconsistent. One witness did not see the act at all, despite witnessing the event throughout, further undermining the strength of the Crown case.

29. In the circumstances described in paragraph [24] and without any further evidence being obtained, the proceedings in the Local Court were initiated without reasonable cause.

30. Further the proceedings were conducted by the both the Local Court Prosecutor and the Director’s Prosecutor in an improper manner in three respects:

31. First, once tasked with the duty of prosecuting fairly and in the public interest, the Local Court Prosecutor unreasonably failed to investigate properly what evidence the two witnesses could give. That was made clear ultimately by their evidence. Proper statements with the use of a qualified interpreter should have been obtained for the hearing.

32. Second, the Local Court Prosecutor conducted the hearing without reasonable cause. Once this was clear, by the completion of the two witness’ evidence at the end of the second day of the hearing, Sergeant Jurkovic did not withdraw, but rather argued for a position that was untenable. The finding in the prosecution’s favour in the Local Court did not alter that fact

33. Third, the Director improperly did not concede the appeal at the outset. It only took a question from the Court to ascertain that the case was without prospects. That concession should have been made the moment the appeal was filed, and it became apparent that the evidence was not sufficient to have any reasonable prospects of success and indeed could not support a finding of guilt. Such checks and balances ought not be left to the Court to enquire about. In making that finding, I make no criticism of Ms Romelingh, who appeared on behalf of the Director. She was bound by her instructions and ultimately answered my questions with the appropriate candour expected of an officer of the Court.

34. In all of those circumstances, relating to the investigation and the conduct of the proceedings by the prosecutors, both in the Local Court and on appeal, which as a whole I regard as exceptional, it is just and reasonable to award costs in favour of the Applicant.

35. The Respondent is to pay the Applicant’s costs of the hearing to the extent sought in the Local Court and all the costs of the appeal.

Is it Appropriate to Make an Order Specifying the Amount?

29. The Applicant seeks a fixed costs order.

30. The Respondent was provided with a bundle of documents on 27 February 2025 producing various tax invoices and costs agreements, and details of the quantum sought. The amount of $33,257 sought does not include day two of the District Court hearing, it having been accepted by the Applicant that he contributed to those costs to be incurred.

31. There is incontrovertible evidence that the costs were incurred. There is no submission put that they are not reasonable.

32. In all the circumstances, it is just and reasonable to make an order for costs in the total amount set out in the email dated 27 February 2025. That is the amount sought in the Applicant’s email, supported by documents, and about which the Respondent takes no issue. It is also, in my view, entirely reasonable having regard to the case.

Consideration of the Issue – CCCA

33. The CCCA should not be read in a way which limits the reach of its application: Allerton v DPP (1991) 53 A Crim R 33 (‘Allerton’) and cited with approval in Rodden v R [2023] NSWCCA 202 (‘Rodden’).

34. The beneficial nature of the CCCA should be fully borne in mind: Allerton at [559] - [560]; Mordaunt v The DPP [2007] NSWCA 121 at [36] (‘Mordaunt’) and cited with approval in Rodden.

35. The CCCA requires a consideration of the position at the time proceedings were instituted or continued in light of "what was known and became known about the facts of the case": Rodden at [156].

36. The outcome in this case did not depend on any credibility issues with the witnesses. To the extent either witness provided information in any statements to the effect that the Applicant pulled the Complainant by the hair, neither gave any evidence of that fact at trial that could support a guilty verdict.

37. For the reasons I have already articulated in respect of the application for costs, on any objective review of the criminal prosecution upon which the Applicant was ultimately discharged, it is clear that upon the evidence presented at trial, it was not reasonable that the Applicant should have been exposed to the proceedings in the first place: Mordaunt at [64].

38. As was the case in Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799, the witnesses did come up to proof. The prosecution is assumed to know this; to have the hypothetical knowledge that the evidence, set out in the police statements or otherwise in support of the Crown case as particularised, will not be given.

39. Where it is assumed to be known that the evidence will not be given and where the prosecution could not otherwise be supported, it would be unreasonable to institute or continue the proceedings.

40. The language and purpose of the CCCA deliberately avoids any criticism of the prosecution in the particular case. It is simply the case that, given the absence of the evidence going to the common assault as particularised, there was no reasonable basis upon which any Local Court Judge, acting properly and in accordance with the law, could have convicted the Applicant. There was no option but to allow the appeal. The Director’s Prosecutor ultimately conceded as much.

41. Accordingly, I am of the view that given all the relevant facts, assumed to be known by the hypothetical prosecutor, it was unreasonable to initiate and continue the proceedings and to defend the appeal. Indeed, it was always unreasonable for the reasons that I have stated.

42. I am mindful that the costs order may well cover all of the costs incurred and that the Certificate may be rendered nugatory. However, I grant the certificate in the event of any successful challenge to the costs order.

Orders

43. The Respondent is to pay the Applicant’s costs in the sum of $33,257 being the costs of the Local Court and District Court appeal, excluding day two of the District Court hearing.

44. The costs are to be paid within 28 days.

45. I grant the certificate.

46. I direct the Applicant’s representatives to provide an appropriate certificate by email to my associate within 7 days for endorsement.

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