DONG v HUGHES

DONG v HUGHES - [2005] NSWSC 84 - NSWSC 2003 case summary — Zoe

[28]

This appeal is from the whole of the decision of the Court below." 3 The disposition of the essential matter, both before the Magistrate and before myself, has been somewhat protracted. 4 After the conclusion of the hearing before me, I was requested to "stay" the delivery of a judgment pending a formal application by the plaintiff by Notice of Motion with accompanying affidavits, seeking leave to reopen on the basis of fresh evidence. Naturally, I was only too pleased to accommodate the parties in this regard. Unfortunately, it took from May until October 2003 for the parties to bring the matter back before me to hear the argument as to the admissibility of "fresh" evidence. One factor that intruded upon the listing of the matter again was the desirability of the counsel, who appeared before me when the plaintiff's Summons was heard, to be available to appear when the matter of the Notice of Motion to reopen was heard. To the best of my recollection, the last mentioned date was fixed to accommodate counsel. However, whether or not that is in fact the case, counsel who appeared before me on the Summons did not appear before me on the Motion to reopen. I mention this merely to explain what, on its face, would appear to be one reason for the rather protracted disposition of an appeal from a Magistrate. 5 The evidence read in support of the plaintiff's Summons was constituted by affidavits sworn 1 July 2002, 22 October 2002 and 4 February 2002 by David Kam, the plaintiff's solicitor. 6 To the first affidavit is annexed the text of the decision of the Local Court by his Honour Local Court Magistrate Dillon of 4 June 2002 from which the appeal is brought. 7 The affidavit of 22 October 2002 annexes transcript from various stages of the proceedings in the Local Court, including the transcript of 11 August 2001 which was marked as exhibit A. The annexure of the transcript in its completeness was necessary to determine whether any concession had been made in relation to what became exhibit 4 before the Magistrate, a "Statement of Facts". 8 To the last of Mr Kam's affidavit is annexed a chronology of the progress of the matter in the Local Court, which was handed up to the Magistrate. Annexure B is a copy of the plaintiff's "exculpatory" statement, dated 4 July 2001; in exhibit C is a request for particulars dated 22 October 2001 from counsel from the plaintiff, as I read it, to counsel for the DPP. In this affidavit, Mr Kam deposes to certain exhibits that have been placed before the Magistrate. Exhibit 1 was made up of volumes 1 to 23 of the Crown brief; exhibit 2 was an affidavit from Mr Kam enclosing the chronology to which I have referred; exhibit 3 were volumes 4 and 7 of the Crown brief tendered for the plaintiff; exhibit 4 was the Statement of Facts to which I have referred; exhibit 5 was the letter of particulars; and exhibit 6 was a letter from the Commonwealth DPP, tendered by the DPP before the Magistrate. 9 For the defendant before me in these proceedings, there was read an affidavit of Penelope Mary Musgrave sworn 28 January 2003. To that affidavit is annexed what was exhibit 4 before the Local Court, namely a Statement of Facts, which, and I gather it is not in dispute, was prepared for the purposes of a bail application. Also annexed is a letter dated 26 October 2001 from the DPP to the then counsel for the plaintiff purporting to respond to the earlier letter in connection with the particulars. This letter contains an undertaking to "articulate and particularise the conspiracy" prior to the committal hearing. 10 Relevant legislation is as follows. Section 41A of the Justices Act 1902: " 41A Payment of costs by informant (1) The Justice or Justices: (a) when making an order discharging a defendant as to the information then under inquiry, or (b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged, may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant (or, if the informant so elects, directly to the defendant) such costs as to the Justice or Justices seem just and reasonable. (2) The amount so allowed for costs shall in all cases be specified in the order requiring payment. (2A) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner, (c) that the prosecution 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 defendant might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award costs.

[49]

Discharge of onus of proof under s 41A 26 It is the plaintiff's position that having tendered before the Magistrate the exculpatory material, there thereupon shifted to the defendant an evidentiary burden to establish that it had not conducted itself in a way to which the Justices Act referred, and to rebut a presumption, presumably, or an inference, said to flow from the tender of the plaintiff's exculpatory material, that there must have been "exceptional circumstances", all the more so given the Crown's silence as to why it proffered no evidence. 27 It was common ground that the section was enacted after the decision of the High Court in Latoudis v Casey (1990) 170 CLR 534 at 543. The decision pointed the way to persons in the position of the plaintiff being effectively eligible to an award of costs in his favour in cognate circumstances. 28 Section 41A of the Justices Act must be understood as restricting the circumstances in which a defendant can apply successfully for costs, and thus must be viewed in a different way to s 4 of the Costs in Criminal Cases Act 1976 (Tas), which was a facultative provision that was under consideration by the High Court (see below, paragraphs 34-43). 29 That consideration is important bearing in mind the provision of s 140 of the Evidence Act. This is a civil case. The onus of proof is upon the party seeking the order for costs. That which that party has to prove are the matters that would trigger the criteria in the section. 30 The plaintiff advanced his argument, inter alia, on the basis of a decision of Young J (as his Honour then was) in Ramirez v Sandor's Trustee (unreported, NSWSC, 23 April 1997). In that case, his Honour, after referring to s 140 of the Evidence Act, considered that where the facts are mainly in the camp of the opponent, the position still remained that "a very slight degree of proof should be sufficient to shift that burden", citing Madden CJ in Michael v Thompson (1894) 20 VLR 548 at 552. 31 I am of the view that the terms of s 41A provide a basis for departing from what Young J said as to there still operating the principle of common law in relation to evidence as referred to by Madden CJ. When one reflects upon it, the plaintiff's proposition seems to be that in circumstances where the plaintiff has tendered an exculpatory statement, the ball is thrown into the defendant's court. This would almost render the policy behind the enactment of s 41A of the Justices Act nugatory. I am of the view that there is a positive onus of proof on the plaintiff to lead evidence of substance that is more than "a slight degree of proof". 32 Young J describes s 140 as "imperious". That may be one way of viewing it, but adopting that word it makes all the more compelling an outcome, given the history of the section, which requires the plaintiff to do more than produce "a very slight degree of proof". 33 No comfort in my view can be found in Jones v Dunkel (1959) 101 CLR 298. It will be purely speculative to draw an adverse interest against the Commonwealth DPP merely by reference to the evidence, such as it was, tendered by the plaintiff, namely the exculpatory statements and matters of history. Nor of course can Jones v Dunkel be used to "fill in gaps" (not in the Commonwealth's case) in the plaintiff's case. 34 The plaintiff sought to rely upon two decisions from the Supreme Court of Tasmania: Brown v Bessell (unreported, 4 May 1994); and Coleman & Wholgemuth v Harper (unreported, Full Court TAS SC, 1 June 1993). In Brown v Bessell, Zeeman J said (at 4.7): "The matters which militate in favour of the making of an order are the fact that the complainant offered no evidence and the fact that such reasons as were advanced by the complainant for taking that course suggest that had the prosecution proceeded it would have failed. I do not consider that there are any matters which militate against making the order." 35 His Honour, sitting in the Full Court in Coleman, said (at 11.5): "[T]he matters…which were relevant to the exercise of the discretion were the following: 1. that the complaint had been dismissed by reason of the respondent having put no evidence before the Court; 2. that the respondent did not oppose the making of orders under the Act; and 3. that the respondent offered no reason for having chosen to offer no evidence."

[50]

His Honour went on to say (at 11.7): "As the respondent chose not to inform the court of those reasons, it ought to be inferred that those reasons would not have assisted the respondent in resisting the making of the orders. Whilst the appellants carried the overall burden of persuasion, each party carried the burden of proving matters militating in favour of making the orders on the one hand and militating against the making of the orders on the other hand. The three matters to which I have referred either militated in favour of the making of the orders or indicated an absence of factors militating against the making of the orders." 36 Contrary to the submission by the plaintiff, the provision under consideration in both Brown v Bessell and Coleman is not "similar" to the provisions of s 41A of the Justices Act. Section 4(1) of the Costs in Criminal Cases Act (Tas) is reproduced in full in Coleman (at p 2) and is as follows: " 4. Costs of successful defendant (1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where - (a) he is acquitted of the offence; (b) the complaint charging him with the offence is dismissed or withdrawn; or (c) he is discharged upon an indictment for the offence - the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable. (2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following: (a) Whether the proceedings were brought and continued in good faith; (b) Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings; (c) Whether the investigation into the offence was conducted in a reasonable and proper manner; (d) Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point; (e) Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty. (3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment. (4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued. (5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof." (emphases added) 37 Unlike section 41A of the Justices Act 1902, subsection (2A) of which is intended to limit the circumstances in which a defendant can apply successfully for costs, s 4 of the Costs in Criminal Cases Act 1976 is facultative, as was that under consideration by the High Court in Latoudis v Casey (1990) 170 CLR 534 at 543. Subsection (2A) of 41A of the Justices Act 1902 was, of course, enacted to overcome the effect of that decision. The nature of the discretion available to a Magistrate under s 4 is dealt with by Zeeman J at p 9 of Coleman where he adopts as the appropriate construction of the words "shall have regard to" given to them by Somers J in R v CD [1976] 1 NZLR 436 at 437: "The first question, is what is meant by the words 'shall have regard to'.

[56]

Section 41A Justices Act , generally 45 I gather that it was sought to be argued in the Court below that in circumstances where the plaintiff had given an exculpatory version, where no explanation is offered for the proffering of no evidence, it can be inferred that the investigation into the alleged offence was conducted in an unreasonable or improper manner (s 2A(a)); it can be inferred that proceedings were initiated without reasonable cause or in bad faith, or were conducted by the prosecution in an improper manner (subsection (b)); it can be inferred that the prosecution 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 suggests that either that the plaintiff might not be guilty, or that for any other reason the proceedings should not have been brought (subsection (c)). It seems to me that in the course of submissions, whilst having some regard to the requirement of the plaintiff to prove a case, ultimately the plaintiff relied on subsection (d), where the reference is to there being "exceptional circumstances relating to the conduct of the proceedings by the prosecution". 46 Here one does not look at the evidence tendered by the plaintiff in the Court below, namely the exculpatory statements, nor to the fact that there was no evidence called by the defendant as to why it was that it proffered no evidence. Here, one is constrained to view the "conduct of the proceedings by the prosecution" as a whole. 47 I agree with the Magistrate's conclusion as to subsections (a), (b) and (c). In Fosse v DPP & Anor [1999] NSWSC 367, Wood CJ at CL said (at 30): "30. Similarly in relation to S 81(4)(d) she correctly identified that the defence had to establish something about the conduct of the proceedings being an "exceptional circumstance" other than some matter mentioned in subsections (a)(b) or (c) of S 81(4) , to make it just and reasonable for the plaintiff to have his costs. In that regard the mere fact that the proceedings were resolved in his favour was not enough. There had to be something in relation to the manner in which the proceedings were conducted that had led to it being just and reasonable for a costs order to be made." (emphasis added) 48 The phrase "exceptional circumstances" means what it says as a matter of ordinary English I would have thought. Subsections (2A)(a), (b) and (c) not having been made out, something of substance is required for (d). Mere proffering of no evidence is not enough. Nor is mere reliance on exculpatory statements of the plaintiff. Neither is remarkable in itself nor in combination. Here there is nothing more that does constitute "exceptional circumstances".

[57]

Conclusion 49 Thus, whilst I am of the view that exhibit 4 before the Local Court was wrongly admitted and wrongly dealt with by the learned Magistrate, that error did not vitiate his ultimate conclusion. 50 To the extent that any leave is required to appeal, I would grant that leave, but the ultimate outcome is that the appeal should be dismissed. 51 I come now, before making final orders, to the Notice of Motion filed by the plaintiff on 20 June 2003 for leave to file fresh evidence. That was ultimately heard on 11 December 2003, on which occasion Mr T Hall for the plaintiff appeared and Mr M Allnutt appeared for the defendant. 52 The Notice of Motion was supported by an affidavit sworn 19 June 2003 by Mr Kam, solicitor for the plaintiff. An earlier affidavit of Mr Kam, sworn 23 May 2003, was also relied upon. 53 Essentially, the new material is made up of a letter dated 30 August 2001 from the Australian Taxation Office to the plaintiff, which enclosed an adjustment sheet notifying the particulars of the taxable income that had been assessed. The next document was a document dated 11 July 2002, in an application to the Administrative Appeals Tribunal by the plaintiff for a review of the decision of the Commissioner to disallow an objection. It is a statement of findings, dated 11 July 2002, consequent upon another document lodged with that Tribunal dated 5 June 2002, being an application for a review of decision. The final document is a Taxation Assessment dated 14 May 2003, which discloses a small refund. 54 I gather that the purpose of the tender was to show the resolution of the matter as between the plaintiff and the Australian Taxation Office. That would amount to some evidence of the plaintiff's "innocence". 55 For the defendant, an affidavit of Penelope Mary Musgrave (affirmed 27 August 2003) was read. It usefully sets out the historical aspect of this matter. 56 The relevant section of the Justices Act s 104(3), which provides: " 104 When an appeal can be made by a defendant or other person … (3) Appeals in relation to committal proceedings A defendant or an informant may appeal under this Division to the Supreme Court against any order that is made in relation to committal proceedings, on a ground that involves a question of law alone, but only with the leave of the Supreme Court." 57 There was hardly anything in issue between the plaintiff and the defendant as to the general principles as to fresh evidence. 58 What was asserted by the defendant, which I accept, is that this was not new evidence, save for the Assessment dated 14 May, namely three days before the commencement of the substantive application for costs in the lower Court on 17 May 2003. All of the other documents antedate that. On its face, it seems clear that the material was available to the plaintiff's solicitors on or shortly after 2 April 2003. I am not satisfied that the material sought to be tendered on reopening can properly be characterised as new or fresh evidence. 59 In any event, even if it were, it is irrelevant. The plaintiff makes no submission on the basis on which this material, arising as between the plaintiff and the Australian Taxation Office, without (and it would seem to me substantial) additional material to place it in context, was relevant to the discretion the Magistrate had to exercise under s 41A. I am not persuaded that this material, even if admissible, was such that "there must be a high degree of probability that there would be a different verdict" - that is, his Honour the learned Magistrate would have made an order awarding costs. 60 I make the following orders:

The plaintiff is granted leave to prosecute the appeal as set out in the Amended Summons seeking leave to appeal and appeal.
The plaintiff's Notice of Motion filed on 20 June 2003 is dismissed.
The Amended Summons is dismissed.
The plaintiff is to pay the defendant's costs of the Amended Summons and of the plaintiff's Notice of Motion. **********

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