DPP v Hodge

2. Subsequently on 15th May 2007 the accused was served with Court Attendance Notices alleging the offences of possessing child pornography contrary to the provisions of Section 91H (3) of the Crimes Act 1900 and possessing a prohibited weapon contrary to the provisions of Section 7(1) of the Weapons Prohibition Act 1998.

3. The proceedings came before the Downing Centre Local Court on 26th June 2007. They were adjourned to 10th July 2007. The court record notes that on this date the accused was assisted by legal representation and a plea of not guilty was entered. The court made orders for a brief of evidence to be served by 4th September 2007 and adjourned the proceedings to 18th September 2007 for reply. On that date a solicitor from the Office of the Director of Public Prosecutions appeared. The accused's appearance had been excused and a solicitor represented him in his stead. The plea of not guilty was confirmed and the Court allocated 6th, 7th and 8th February 2008 for a summary hearing. In line with the established practices of the Court the proceedings were then adjourned to 15th January 2008 to confirm the hearing dates. On that date the proceedings were adjourned to 24th January 2008 and on that date Ms. Knowles of the Director's Office and Mr Conomos of counsel appeared for and with the accused person.

4. The prosecution withdrew the Court Attendance Notice alleging the possession of child pornography. The accused person entered a plea of guilty to the allegation of possessing a prohibited weapon. Up until the withdrawal of the charge under Section 91H the charge of possessing a prohibited weapon had also been the subject of a plea of not guilty a circumstance which is relevant to the quantum of costs should the accused person's application succeed but irrelevant to the argument as to whether costs ought be awarded in respect of the charge which was ultimately withdrawn before me. Following the sentencing of the offender for the latter charge Mr Conomos made application for an order for costs in relation to the proceedings that were withdrawn. The Solicitor for the Director of Public Prosecutions opposed the application.
5. A prosecution brought pursuant to Section 91H(3) of the Crimes Act 1900 is an offence to which Schedule 1 of the Criminal Procedure Act 1986 applies. It is an offence set out in Table 1 of the Schedule and is one which is to be dealt with summarily unless the prosecutor otherwise elects. At no stage during these proceedings did the prosecutor indicate that it would elect to have the matter dealt with on indictment. The relevant provisions under which the application for costs is to be considered are those set out in Division 4 of Chapter 4 the Criminal Procedure Act 1986. These provisions, although applicable to summary proceedings are for all intents and purposes identical to those set out in Division 7 of Chapter 3 of the Act.

Section 213 (1) of the Act establishes the jurisdiction to make an order for costs. It provides that: 213(1) A court may at the end of summary proceedings order that the prosecutor pay the professional costs to the registrar of the Court, for payment out to the accused person, if the matter is dismissed or withdrawn.

Jurisdiction to make an order for costs where a matter is dismissed or withdrawn however is truncated by the provisions of Section 214(1). These provisions are expressed in the following terms: 214(1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following: (a) 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 prosecutor in an improper manner, (c) that the prosecutor 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 accused person might be not 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 prosecutor, it is just and reasonable to award professional costs.

It is for the party seeking the order for costs to satisfy the Court that the proceedings come within one or more of the circumstances set out in the Section Fosse -v- DPP [1999] NSWSC 367. The manner in which the introductory part of Section 214 is framed makes it clear that generally speaking costs are not to be awarded to an accused person.

In making his application on behalf of the accused Mr Conomos generously conceded that he was not taking issue with the fact of the proceedings having been commenced or that there was any suggestion of unreasonableness or bad faith on the part of investigating police. I take this to be a concession that the accused concedes he cannot satisfy the Court that Section 214(1)((a) or (b) applies to the context of these proceedings.

In so far as the remaining provisions are concerned Mr Conomos asserts that the prosecution ought to have sought advice from an appropriate authority before commencing the prosecution. This general proposition needs further explanation against the background of the way in which the proceedings reached the point where the jurisdiction of the Court was withdrawn.

The solicitor for the Office of the Director of Public Prosecutions informed the Court that following the entry of a plea of not guilty advice was sought from a member of the medical profession with expertise in the ability to proffer an opinion as to the likely age of juveniles based on their appearance. The use of such expert or opinion advice [which may or may not eventually result in the giving of evidence] is not mandatory on the part of the prosecution but may be regarded as understandable when one has regard to the nature of the offence and the elements the prosecution is required to prove beyond reasonable doubt.

For the purpose of explanation the definition of child pornography set out in Section 91H(1) is as follows: Child Pornography means material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years: (a) engaged in sexual activity, or (b) in a sexual context, or (c) as the victim of torture, cruelty or physical abuse (whether or not in a sexual context.

In this regard the Court was informed that advice received from the medical practitioner was to the effect that the persons depicted in the material seized from the accused's premises may or may not have been apparently under the age of 16 years. As best the Court can understand the submission by the prosecution as to the tenor of the advice given by the specialist doctor, a viewing of the material produced an opinion that was equivocal. 14. Counsel for the accused argued that the prosecution should have sought this opinion before commencing proceedings and that failure to do so meant that, in accordance with Section 214(1)(c) it had "failed to investigate (or to investigate properly) any matter of which it was aware or ought reasonably have been aware and which suggested either that the accused person might not be guilty or that for any other reason the proceedings should not have been brought". I do not agree. Apart from the common occurrence that an accused person charged with an offence may enter a plea of guilty thus obviating the necessity for the prosecution to assemble a brief of evidence legislative provisions such as those contained within Division 2 of Part 4 of the Criminal Procedure Act 1986 make it clear that the necessity to compile a brief of evidence is commonly the product of a plea of not guilty entered after the charging process has taken place. 15. To expect expert or opinion evidence to be obtained as a precursor to the commencement of prosecutions in an area of the law where one of the considerations as to whether material is or is not "apparently" child pornography and where opinions may often be at variance with each other depending on the obviousness or problematic opinion as to likely age is in my view to set the bar too high. What may be apparent in one person's opinion may not be apparent in the opinion of another, or, in the mind of a third may be equivocal.

Against that inherent likelihood, whose opinion is to rule the day? Would such an opinion obtained prior to commencement in circumstances where the ultimate question is one for the tribunal of fact to determine obtain a higher level of incontrovertibility? Of course it would not. A Court is required to determine whether this evidentiary aspect is satisfied on the whole of the evidence and on the weight to be given to each portion of evidence. "Apparent" in the context of Section 91H must surely mean "apparent" to the tribunal of fact. In my view there is nothing put before the Court to suggest that the proceedings ought not to have been brought.

Counsel also informed the Court that the issue of what images the prosecution was relying on was raised by the solicitor for the accused in September 2007 and that in December 2007 it had become clear that the issue of whether the persons shown in the imagery were apparently under the age of 16 years was a live issue. The Memorandum of Costs provided to the Court without objection [save as to quantum] clearly demonstrates that the Prosecution commenced to seek the views of a medical practitioner in mid December 2007. Logically this appears to be in response to the proposal set out in the letter dated 10th December 2007 from the accused person's legal representatives.

The fact that the prosecutor in these proceedings having considered the report of a doctor came to the view that a prosecution may not succeed is an elective decision in the exercise of the residual discretion of any prosecutor. Expressed in the parlance of the business world, on what was put to me by the solicitor for the prosecution, this was a "commercial decision" of the type that prosecutors are called upon to make every day. To make such a decision is not in my view to make the concession that the proceedings were not properly investigated or to borrow from Section 214(1)(c) "…should not have been brought". I find that the accused person has failed to satisfy the court that the provisions of Section 214(1)(c) have been satisfied such as to bring him within the ambit of an entitlement to an order for costs in his favour under this provision.

I turn then to the remaining provision within Section 214(1), whether "because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs."

The words " exceptional, just and reasonable" ought be understood in my view against the context of the intention of Section 214. As I indicated earlier, that context is that that costs are not to be awarded except in accordance with the Section.

In Fosse -v- Director of Public Prosecutions & Anor [1999] NSWSC 367 at [30] the Court said:

"Similarly in relation to S 81(4)(d) Justices Act 1902 - now repealed. ….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."

Having considered the manner in which the proceedings were instituted and maintained up to the point of their being withdrawn I can find nothing that I would regard as "exceptional" such that would make it just and reasonable for the accused person to have his costs. It follows that the application for costs must fail and I so hold.

Graeme Henson Chief Magistrate 6th February 2008

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