DM v R

No reasonable prospect of conviction

1. The Appellant submits that there is evidence that demonstrates Constable Mounsey did not honestly believe in the sufficiency of the evidence to initiate a criminal prosecution. In the transcript of the ERISP conducted with the Appellant, this was said: "Q402. Mmm. So you can only see that the...of your action, I don't know exactly what's happened, but the sum result of your actions has caused him [WM] to be that upset. A. Ah, I would say that his actions have, um, brought on a situation where I needed to defend his brother."
2. The questioning went on to ask the Appellant whether he thought that his action had upset WM, but that need not be pursued at this time. The important thing to note is that towards the end of the ERISP Constable Mounsey said "I don't know exactly what's happened" meaning that he was unsure of what actions had occurred at the time of the assault alleged by the prosecution, an assault said to have occurred between 7pm and 7.30pm on Saturday 8 August, 2020 at the family home.
3. The Constable was cross-examined about that matter. This evidence was given on 19 March 2021 in the Local Court at Burwood when the matter was heard: "Q. So constable if I can take you to page 45 of the record of interview with the accused person? A. Yep. Q. Question 402. A. Yep. Q. You've indicated to my client at that stage 'Mm, so you can only see that the of your action. I don't know exactly what happened but there's some result of your actions has caused him to be that upset'. Had things changed by the time you charged him from you not knowing exactly what's happened up until the time you charged him?" There was some misunderstanding in Constable Mounsey's mind about the question but eventually he answered it in this fashion: "...It hadn't changed..." The cross-examination then continued in this fashion: "Q. So you understand the New South Wales Police Force adopts the Office of the Director of Public Prosecutions Guidelines? A. I've never had it, so - Q. Have you ever looked at them? A. --know what, no. Q. So you don't know that you're not - you're only supposed to charge people-- PROSECUTOR: Object. Object, your Honour. Relevance. HER HONOUR: I think I'll allow the question, sergeant. It's relevant to the charging process, yes. SEARSON Q. So you tell the Court that you don't know that you're only supposed to charge someone with an offence when it can't be said that there is no reasonable likelihood of a conviction, is that right? A. Beyond reasonable doubt, is that what you're..."
4. Counsel then agreed with the witness that that was what he was aiming at. In other words, whether one looks at the proposition that a charge should not be made if there is no reasonable prospect of conviction rather than whether there be proof beyond reasonable doubt. If when he interviewed the Appellant, Constable Mounsey did not understand what action had taken place between the Appellant and WM then how could he be satisfied beyond reasonable doubt that the could prove the conviction, or rather how could he believe that he could prove the charge that he made against the Appellant beyond reasonable doubt, let alone whether he satisfied himself that it could be said that there was no reasonable prospect of a conviction.
5. One must have regard to what evidence was actually before the constable when he made the decision to issue the Court Attendance Notice to commence the prosecution. He had the Domestic Violence Evidence in Chief ("DVEC") made between himself and WM. He had the statement made by WM's mother and he had the record of interview made with the appellant fresh in his mind. He was also aware that the Appellant had no previous criminal convictions and was therefore entitled to be seen as a man of prior good character.
6. Firstly, as I pointed out when giving judgment in the substantive matter in DM v R (No. 1) [2020] NSWDC 813 the boy, WM, could not specify whereabouts exactly the Appellant struck his neck with the Appellant's elbow.
7. Initially, it appeared to me that he was indicating a short distance, either two centimetres or an inch behind the point of the chin, but in other times it was lower down as far down as the Adam's apple, and was not maintained to be in the median line of the body. As has been submitted by the Appellant's counsel today it was, "all over the shop." WM said that there was a red mark left by the impact between the Appellant's elbow and his neck. However, common sense would tell anybody that one cannot see anything below one's chin and as far as the Adam's apple, human anatomy does not permit one to see that area unless, of course, one looks in a mirror. There had been no question about that directed to WM. The constable should have realised that WM would be unable to see a red mark in the area of his body that he had indicated in the DVEC.
8. Furthermore, the constable failed to consider the implausibility of an adult bringing his elbow down onto the neck of a boy who was then nine years and eight months old. It is clear that at all material times, WM was alleging that his father brought the olecranon process down onto his neck, that is, the point of the elbow which is a potentially lethal weapon. WM, according to what was said by the appellant in his record-of-interview, was prone to bruising and there was no suggestion of any bruising of any part of WM's neck. Furthermore, when the DVEC was made, eight days had elapsed since the alleged assault, and there is no suggestion that either Constable Mounsey or Constable Hemmens could see any mark on any relevant part of WM's body.
9. WM also told Constable Mounsey that he told his mother about the injury "straight after" the incident in the bedroom in which it is alleged that the Appellant brought down his elbow to strike his son's neck. That incident was at some time according to the Court Attendance Notice, consistent with other evidence between 7 and 7.30 pm on the evening of 8 August 2020. Nevertheless, the mother, in her statement which became Exhibit 4 in the Local Court, said that she was not told anything about what happened until "about 7am" on Sunday 9 August 2020, some 12 hours after the event. Even a boy aged nine years and eight months would not believe that straightaway or straight after an event occurring was some 12 hours later after a "sleep."
10. Furthermore, there was no evidence from the boy's mother that he showed her or that she could see any mark on his body at any time either immediately after the alleged assault when she came to the child's bedroom a short time later, let alone on the morning of 9 August 2020 when WM told her about what had allegedly occurred between him and his father. Another inconsistency between what WM said and what his mother observed as recounted in her statement was this. In the DVEC, WM said that his father took the remote control of the television from him in the living room and then he ran to his bedroom and when asked why he was running, he said, because he was about to cry. According to his mother, he did not run from the television room into his bedroom but walked.
11. Even on his own admission, Constable Mounsey was, towards the end of the interview with the Appellant, unsure as to what had exactly happened and, therefore, how could he determine that he could prove beyond reasonable doubt that the assault alleged by WM had occurred?
12. In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at [29], Wilcox J said this: "It seems to me that one way of testing whether a proceeding is instituted 'without reasonable cause' is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success."
13. Based on the inconsistencies to which I have just referred, and which I highlighted at greater length in DM v R (No. 1) [2020] NSWDC 813, I accept that prosecution was highly unlikely to succeed. Learned junior counsel for the Appellant used the terminology "doomed to fail", but perhaps the proper way of looking at the matter is that it could be said that there was no reasonable prospect of a conviction.

Unreasonable investigation

1. The next ground relied upon by the Appellant is that provided by s 70(1)(a) that the investigation into the alleged offence was conducted in an unreasonable manner. The heading provided by Counsel for the Appellant concatenated "an unreasonable or improper manner", but it is not been suggested that what the constable did was improper, merely that it was unreasonable.
2. In the statement of the mother, to which I have already referred, she said that she was sitting with her daughter, RM, at the dining room table in the kitchen of the house at the time of the incident. The mother could not see much of what occurred in the living room where the Appellant and the boys were seated, watching television, but she could obviously see, through the doorway to the living room from the kitchen, the child leave the area where television was being watched to go to the children's bedroom. She could also hear what was happening. Nevertheless, there was no interview with RM conducted. At the time of the alleged offence, RM was 12 years old having reached that anniversary in the first week of the month of the alleged offence.
3. RM, one would expect to be a competent witness to give evidence who might be able to corroborate WM's mother, insofar as WM's mother could give relevant evidence. However, no attempt was made to interview RM. The question is, one must ask, whether that should have been done in circumstances where there were inconsistencies between what WM said and what his mother said. It would have been extremely prudent for the constable to interview RM to see if she corroborated her mother completely, or whether she said things more consistent with what her younger brother said.
4. Another matter to bear in mind is this, it is clear from the factual aspect of the case that this alleged offence occurred on a Saturday the 8 August 2020. On Tuesday 11 August 2020 the mother quit the family home taking the children with her and going to a women's refuge where, after spending some time in COVID‑19 quarantine, she contacted the police on Saturday 15 August 2020. Whatever had impelled her to leave her husband and take the children with her was obviously a matter which might excite some suggestion of bias on the part of the mother against the father, and in such circumstances it would be additionally prudent to interview the daughter who may not have any bias against her father.
5. In Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13, Hodgson JA, said at [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."
6. If it be thought that RM was not a relevant witness, then one should also think that her mother was not a relevant witness because her mother did not see the interaction between the Appellant and WM in the living room, nor the interaction between WM and his father in WM's bedroom, they being times of reverent physical activity. In other words, the investigator ought to have interviewed RM in light of the inconsistences already apparent between WM and his mother, and in particular bearing in mind his indecision as to what actually occurred at the time he was interviewing the Appellant and bearing in mind the Appellant's forthright denial of any relevant assault upon his son and the Appellant's prior good character.

The conduct of the proceedings

1. The Appellant also relies on s 70(1)(d). The exceptional circumstances relied upon were the conduct of the proceedings by the prosecutor. At the conclusion of the oral evidence her Honour ordered that written submissions be filed and served. The written submissions of the Appellant are over five pages and can be found at pp 168 to 172 of Exhibit 1 before me. The written submissions on behalf of the Appellant in the Local Court were five pages and were under the hand of Mr Searson of counsel, and bear a date of 6 April 2021, they can be found at pp 163 to 167 of Exhibit 1. The first page of the submissions on behalf of the prosecution are headed "prosecution case". After the preliminary paragraph those submissions are these: "The prosecution case is that the defendant had come into the living room where the complainant and his younger brother, [OM] were watching television. The defendant wanted to change the program and that resulted in a confrontation between the defendant and the complainant over the remote control. The defendant 'snatched' the remote control away from the complainant in the loungeroom. After which the complainant was able to take custody of the controller back. With the remote control, the complainant has run to his bedroom to get away from the defendant. The defendant has pursued the complainant into the room [his bedroom]. Whilst in the room, the defendant had pushed the complainant onto the bed. The defendant called the complainant 'a brat', 'a bully', and proceeded to press an elbow into the throat and neck region of the complainant whilst the complainant was lying on his back on the bed. The elbow was pressed against the complainant for three to six seconds causing him immediate pain."
2. With the utmost respect to Sergeant Kwong, who was acting on behalf of Constable Mounsey, that was not a correct statement of what the prosecution case was. The prosecution case was, as is shown in the DVEC, that the television remote control was snatched from him in the living room by his father and that caused WM to run to his bedroom to cry, and it was only in cross-examination, consistently with what the Appellant had said in the ERISP that, in fact, when WM left the living room he took with him the remote control and had it on his person in a pocket of his pants, probably the front pocket of his pants, and his father followed him to his bedroom in order to retrieve the remote control which WM had removed from the television area. That was a completely different case.
3. The prosecution case changed when WM's evidence changed in cross-examination. When conducting a jury trial, the Crown is required to maintain and prove the case it opened to jury, not some other case. Here, the case presented in chief by the prosecution was different to the case which the prosecutor was asking the Court to accept. This could have been misleading. Furthermore, there is no reference in her Honour's reasons at all to the fact that WM's evidence did change in this regard, a substantive or real change, and one might be forgiven for thinking that her Honour was led astray by the Police's submissions.
4. However, the matter was addressed by Mr Searson in his written submissions. Paragraph [7] of those submissions is in these terms: "From his record of interview and evidence in chief, the complainant would invite the Court to believe the accused had no reason to enter his bedroom other than to perhaps castigate him for previously withholding the remote control in the living room. It was only in cross-examination that the complainant revealed, consistent with the accused person's evidence, that he took the remote control into his bedroom when he ran from the living room. As such, he didn't run to his bedroom because he was 'about to cry' as indicated in his interview with the police (DVEC at Q28). He ran into his bedroom to continue to withhold the remote control from his father and younger brother. This inconsistency is important because it differentiates him from how he projected himself to the police. He is not simply a child upset and emotional by virtue of what his father had done in the living room. Perhaps not unlike many ten/eleven year old boys, he is a defiant, head strong and intelligent boy who's conduct at the time was ruled by an inability to control an immature emotional response to not getting his own way."
5. I should add that Mr Searson fell into the error of referring repeatedly to WM as 10/11 years old when he was in fact 9/10 years old. That, however, changes nothing.
6. Considering the strength of that submission, it is hard to accept why her Honour did not address it in her reasons other than perhaps concentrating on what was said by the Prosecutor rather than what was submitted by Counsel for the Appellant. There is substance to the submission.

Consideration

1. I have reached the view that, particularly for reasons that the proceedings were initiated without reasonable cause for the reasons submitted by the appellant relying upon s 70 (1)(b), that the Appellant is entitled to his costs, not only of the appeal to this Court but also of his costs in the Local Court.
2. It has been submitted on behalf of the Crown that this was a one-on-one case and, therefore, it was appropriate to permit the matter to be prosecuted in the Local Court for that Court to determine. Indeed, the Crown submissions contain this: "Like with many cases which occur in a domestic setting, this was a case which involved competing accounts of the same incident which at a defended hearing would turn on findings of character and credibility by the tribunal of fact". Often that does occur. Sometimes why one person is believed over another is quite opaque, and there appears to be some general principle that such cases should be prosecuted. However, no such policy is, in my view, appropriate. Each case must be considered on its own particular facts by each prosecutor.
3. Here, as I pointed out, there was conflict between the two police witnesses, internal inconsistency in the complainant's own version of events and implausibility, versus a defence mounted by a man of prior good character with no suggestion that a father of three with children ranging in age between 12 and seven had ever committed any physical abuse of any of his children over that 12 year period.
4. If there were some general prosecution principle of letting such matters go to trial, then that is an erroneous principle. One must look at the facts in each particular case.
5. The Crown also submits that I would not order costs against, essentially, the State because I am considering costs not only in this Court but in the Local Court because I have a residual discretion and because the Statute itself makes it clear that I should give a decision based upon justice.
6. However, the ancient principle that the Crown neither seeks nor pays costs has been amended by legislation. That legislation gives in certain circumstances a successful Appellant a right to his costs in this Court and in the Local Court, and if the conditions are satisfied then justice demands that the successful party in proving what he has to prove is entitled to the order which he seeks.

Determination

1. I, therefore, order the Crown to pay the costs of the appellant in this Court and in the Local Court.

Quantum

1. I turn now to the question of quantum. On that question the opening submissions on behalf of the Crown are these: "22. If the Court is against the respondent as to the appellant's application for professional costs under s 214 Criminal Procedure Act 1986, those costs are assessed by the court as 'just and reasonable' per s 213. The respondent submits the Court would be guided by the Attorney-General's Rates. 23. The meaning of 'just and reasonable' was considered [in] Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at 560-4.... It was there held that the requirement that an order must be both just and reasonable incudes that the terms of the order finally made will be in themselves reasonable. What constitutes 'reasonable costs' in criminal proceedings depends to a large extent on the nature of the case." I agree that the costs order should order the payment of costs that are reasonable in the circumstances.
2. The Appellant claims $22,072.50 inclusive of GST for his costs of the defence in the Local Court. He also claims $41,871.50 inclusive of GST for the costs of the appeal to this Court, including the costs of the present application. The total of those sums is $63,899. The summary of that can be found in Exhibit C6.
3. Although the Crown submits that the Court would be guided by the Attorney‑General's rates, I shall take them into account, but also the Court's general experience in dealing with matters of costs which are becoming more and more a major source of work for courts at all levels of the judicial hierarchy.
4. The Crown points out that the rate allowed for a solicitor is $295 per hour, the daily maximum of $2,950 plus GST. The rate allowed by the Attorney‑General for junior counsel if $295 per hour with a daily maximum of $2,212.50 plus GST. The amount allowed by the Attorney-General for senior counsel is $488 per hour with a daily maximum of $4,880 plus GST.
5. In the current matter, excluding GST, the Appellant's solicitor has charged $450 per hour, junior counsel has charged $375 per hour, or $3,000 per day, Queen's Counsel had charged $12,500 per day and printing has been claimed at the rate of $1.10 per page.
6. Based on my experience of dealing with these matters, I came to these conclusions. Firstly, I agree with the proposition that a solicitor ought not charge more than junior counsel when one looks at an hourly rate. Secondly, in my view the work done by a solicitor at the trial level is greater than the work done by a solicitor at the appeal level. A third general proposition is that the costs of defending a matter in the Local Court, as far as counsel are concerned, are at a lesser rate than the costs incurred on appeal to this Court just as the costs of appeal to the Court of Appeal or Court of Criminal Appeal would be greater in those courts than in this Court.
7. I would allow for junior counsel in the Local Court a fee of $500 for conferring with the Appellant, a brief fee of $2,500 to cover the costs of the actual hearing before the Local Court on 19 March 2021, and a fee of $1,000 for the costs of producing the written submissions, which Mr Searson did produce for presentation to the Local Court, the total of those sums being $4,000 (if my mathematics be correct). I add GST which is $400, so I will allow for the proceedings in the Local Court $4,400 for junior counsel. Doing the best I can I would allow for the solicitor's costs $10,000. I add $1,000 for GST.
8. For junior counsel in this Court, I would allow $2,000 for the written submissions that were prepared by him to be signed by him and by his leader. I would allow a brief on hearing of $4,000 and I would allow a fee of $1,000 for taking judgment on Tuesday. The total of those sums is $7,000. If I add GST that becomes $7,700.
9. For the solicitor in the proceedings in this Court I would allow $8,000 and with GST, that becomes $8,800.
10. The amount to be allowed for Mr James QC is a very interesting question. There are very few of Her Majesty's Counsel still practising at the Bar. Necessarily they are senior practitioners. Necessarily they are all eminent. There are many senior counsel, some of much lesser experience than those of Her Majesty's Counsel who remain. I accept that in the particular circumstance of this case it was appropriate to retain senior counsel and, indeed, to retain one of Her Majesty's Counsel. The impact of the conviction which has now been set aside upon the appellant may have been great. Of course, any man faced with a domestic violence allegation in the circumstances of a separation between husband and wife can expect that an adverse consequence for the accused may be highly relevant in contested proceedings in another place, namely the Federal Circuit and Family Court.
11. However, in this case the consequences may have been more dire, he is a man who is a professional teacher, a senior lecturer in education at a university with extensive work having been done by him as a teacher at both primary and secondary levels. The conviction which has been set aside may have adversely affected his ability to hold down his present appointment and, indeed, any job in the areas in which he has worked over many, many years.
12. The Queen's Counsel retained is eminent and highly experienced in the criminal law. His submissions orally were succinct and to the point and extremely helpful. Doing the best I can I would allow for senior counsel a fee of $7,500. When I add GST that becomes $8,250.
13. The matter which has caused me the greater concern is how much to allow for printing. All told, printing is claimed for 950 pages at the rate, as I said, of $1.10 per page. When I was last on a Rules Committee of a Court which could deal with questions of costs photocopying was allowed at 10 cents per page. A lot of water has passed under the bridge in the meantime but I cannot see how on any reasonable basis any rate of more than 40 cents an hour could be reasonably claimed; 950 pages at 40 cents per page gives a figure of $380 (if my mathematics be correct). When one adds GST to that sum one comes to the sum of $418. If my mathematics be correct, the sum of the amounts I would allow amounts to $40,568.
14. I accordingly order the Crown to pay to the Appellant's solicitor within 28 days the sum of $40,568 on account of the applicant's costs in this Court and in the Local Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 September 2022