On 25 September 2019 the applicant, Mr Hariz, was convicted in the Local Court of an offence against s 351A(2) of the Crimes Act 1900 (NSW). In short, he was found to have incited his seven year old daughter to kick and punch a teacher if the teacher spoke to her.
His appeal to this Court was upheld by me on 9 March 2020 and the conviction was quashed. He now applies for orders for costs and a certificate relating to costs in both the Local Court and on the appeal to this Court.
The power to make each of the two orders sought arises under different legislation and involves very different questions. Given that the application for costs arises out of the same set of circumstances, the application is best understood and dealt with as having been made in the alternative.
The power to order a certificate for costs arises under the Costs in Criminal Cases Act 1967 (NSW) (CCC Act).
2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and:
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,
grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1) (a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.
3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:
(a) 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
(b) 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.
…
(Emphasis in original)
These provisions require me to determine firstly what facts the hypothetical prosecutor is assumed to have been in possession of, and secondly whether, armed with those facts, it was not reasonable to have instituted proceedings. If the latter question is answered in the affirmative, I then have discretion to grant a certificate under the CCC Act. That discretion is at large, but must be exercised within the scope and purpose of the legislation. If a certificate is issued, the applicant may then apply to the Director-General of the Attorney-General's Department who then has the power to determine what costs, if any, should be paid to the applicant. Any costs are then paid out of consolidated revenue.
The Crimes (Appeal & Review) Act 2001 (NSW) (CAR Act) makes provision for this Court to make orders for costs on an appeal from a decision of the Local Court. First, s 28 relevantly provides:
28 Miscellaneous powers
…
(2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.
…
"Function" includes a power, authority or duty: s 3.
One of the powers available to the Local Court was provided for in Chapter 4, Part 2, Division 4 of the Criminal Procedure Act 1986 (NSW) (CP Act). Section 212 provides that a court may award costs in criminal proceedings only in accordance with the CP Act.
Section 213 provides:
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.
(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because--
(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or
(b) the matter is withdrawn or the proceedings are for any reason invalid.
(5) The order must specify the amount of professional costs payable.
Section 214 provides:
214 Limit on award of professional costs to accused person against prosecutor acting in public capacity
(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) 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 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 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 prosecutor, it is just and reasonable to award professional costs.
(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.
(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.
There is also provision in the CAR Act for costs. Section 28(3) provides that, subject to s 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just. Section 70 relevantly provides:
70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied -
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or
(b) that 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, or
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter -
(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or
(d) that, 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 appellant.
…
It can readily be seen that s 70 of the CAR Act is in essentially identical terms to s 214 of the CP Act. However, the amount of any costs awarded under the CP Act must be such as is considered just and reasonable and must be specified.
It should also be noted that both the power to award costs under the CAR Act and CP Act, and the power to issue a certificate under the CCC Act are discretionary.
The application was based on a number of different arguments. Although, the appellant identified five arguments, they may be conveniently dealt with as follows.
[2]
Failure to undertake a reasonable investigation
The essence of this argument is that the investigation was unreasonable or improper and the proceedings were initiated without reasonable cause because the main prosecution witness, Ms Garber, was unreliable and there was no attempt to adduce evidence from other witnesses including the appellant's daughter.
Ms Garber was not the only witness called for the prosecution and, contrary to the appellant's submission (AS [86]), she was not very substantially lacking in credit. Ms Garber was the relieving Deputy Principal at the school attended by the appellant's three children.
Her evidence was that she had taken the appellant's daughter to the school gate after class and, when she saw the appellant, told her to go to him. She said she then saw the appellant as he leaned over (his daughter) and started to tell her "she was not to talk to me, she was never to talk to me and if I spoke with her she should kick me and hit me". [1] When he did this he was looking back at Ms Garber.
Nothing in any of her evidence and anything before me suggested, let alone established, that she was not credible, let alone "very substantially lacking in credit". The appeal was allowed only because there was a reasonable doubt cast by the number of people and movement at the busy time of day of school pick-ups.
The fact that there was other evidence that might, if accepted, have cast a doubt on the evidence of Ms Garber does not make either the institution of the proceedings unreasonable or the conduct of the investigation unreasonable or improper. That other evidence was not directly inconsistent with what Ms Garber said she saw and heard, but only provided a circumstantial basis for accepting that she may have misunderstood that the appellant was not directing his comments to her, but to the children who had apparently bullied his daughter.
The appellant also relies on the failure by the prosecution to interview his seven year old daughter and call her as a witness; however, that complaint is also the subject of a separate head of complaint and I will consider it separately for that reason.
[3]
Enquiries should have been made
The police interviewed the appellant's daughter several days after the events leading to the charge brought against the appellant. However, they did not ask her anything about those events.
The appellant argues that the failure by the police to interview his daughters shows that the investigation into the offence was conducted in an unreasonable or improper manner (see s 70(1)(a) CAR Act) and that the prosecution unreasonably failed to investigate (or to investigate properly) a matter that the prosecution ought to have been aware of, and suggested that the appellant might not be guilty or that, the proceedings should not have been brought (see s 70(1)(c)).
The difference between the two arguments, as explained by Hodgson JA in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [20]-[21]:
"20. As regards s.70(1)(c), it could be said that a person seeking costs must identify a matter that the prosecution was or ought to have been aware of and that suggested that the appellant might not be guilty or that the proceedings should not have been brought. If the "matter" in question here is that there was a possible eye-witness, then it was not shown that this matter suggested that the appellant might not be guilty. If the "matter" in question is the evidence that that witness could give, although it could be said that the Council should have been aware of it, it was not shown that this evidence suggested that the appellant might not be guilty. Accordingly, in relation to s.70(1)(c), I do not think error by the primary judge was shown.
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."
It is not necessary for an investigation to be "grossly below optimum standards" before they can be described as "unreasonable or improper": JD v DPP [2000] NSWSC 1092 at [31]. Hidden J said there, the test is purely objective and the conclusion that the investigation was unreasonable does not necessarily impugn the general competence, far less the integrity of those responsible for it.
No attention was paid in submissions in this matter as to the scope of the notion of "unreasonableness" for the purposes of the power to award costs. The pairing with the word "improper" in s 70(1)(a) (and its analogues) echoes the principle of administrative law that it is implicit in the grant of any power that the power be exercised reasonably, that is, exercised according to law and reason within the limits set by the subject matter, scope and purpose of the statute granting the power: Sharp v Wakefield [1891] AC 173 at 179. As Gageler J explained in Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [91], this condition applies to both why a power is exercised as well as to how it is exercised.
The broad powers of the police to investigate allegations of crime must be seen against the purposes of the police "apparent in the Police Act 1990 including the reduction of violence, crime and fear and its function of preventing and deterring crime": s 6. The provisions of the Police Act are to be understood in a context that relates the history and character of the Police Force, such as was considered in Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [4].
That history essentially concerns the powers of common law constables or peace officers. There were many variations of these officers, the most relevant to consideration of the modern police being the Parish Controller. By the beginning of the 17th century these were largely responsible for the prosecution of peace, as well as the execution of orders and warrants of justices of the peace: Halsburys Laws of England, 4th ed, vol 84, at 1-394, (2019).
The powers of investigation are not extended to include powers of trying and convicting those suspected of crime: that is entrusted to the courts. Thus, it may be that the power of investigation may be exercised unreasonably or improperly where it is focussed solely on gathering evidence consistent with the guilt of a suspect. More particularly, the failure to interview an eyewitness or an otherwise natural witness is capable itself of not satisfying the test in s 70(1)(a): Cliftleigh Haulage.
Here, there were, at the very least, three readily identifiable eyewitnesses to the alleged offence: Ms Garber, the appellant and the appellant's daughter. There were, in addition, the appellant's two other daughters who were both nine at the time of the relevant events. The decision whether to interview any of those eyewitnesses may rationally be affected by a number of matters, including the age and maturity of the witness. It may be, for example, that a child is simply too young to warrant the stress of an interview with police. However, it could be a general rule because children are regularly interviewed by police in connection with investigations by police, especially very serious matters of sexual assault.
There is nothing in the evidence before me that suggested any good reason for the police not to interview the appellant's daughter. Indeed, there is evidence that they did interview her. What is left entirely unexplained is why owing that step was taken, they did not ask her a single question about the events in respect of which her father was subsequently arrested and charged. It is unnecessary to consider whether the result of an interview could, or would, have changed the course of the investigation. It is enough that I am satisfied that, in the circumstances, it was unreasonable not to have interviewed the daughter. I am satisfied on that basis that s 70(1)(a) is met and that there should be an order for costs.
In light of that conclusion, I do not need to deal with the failure by the prosecution to call the applicant's twin daughters to give evidence.
I will return to the quantification of the costs later in these reasons.
[4]
The contingency issue and "criminal activity"
The next issue concerns the substance of the offence charged. Two points are raised here: first, that the offence of incitement requires that the offence said to have been incited must be carried out; and secondly, that there was not an "assault" (an essential element of the offence said to have been incited) because there was, on the evidence, no apprehension of immediate and unlawful violence or fear of intimidation. The two are related in the sense that the second point relies on satisfaction of the first: if the appellant is wrong that the underlying offence must have been committed, then it does not matter that there was no evidence that it had been committed. Conversely, if the appellant is wrong that there was no evidence of an assault, then it does not matter for present purposes whether, as a matter of law, an assault must have been carried out before the offence of incitement could be proved. The focus of this application is not whether an assault did or did not occur, but whether, on the evidence, it was unreasonable to bring the prosecution.
In my view it is more than reasonably arguable that it is unnecessary to prove that an assault has occurred in order to establish that an accused has committed the offence of incitement. That argument is supported by decisions in criminal and civil cases: R v Eade [2002] NSWCCA 257 where Smart AJ said, at [60]:
"It was pointed out in Regina v Asst Recorder of Kingston [1969] 2 QB 58 at 62 that with the offence of incitement it is merely the incitement which constitutes the offence and that it matters not that no steps have been taken towards the commission of the substantive offence nor whether the incitement had any effect at all. ..."
See also Dimozantos v R (1991) 56 A Crim R 345, 349; Catch the Fires Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [14]; Sunol v Collier (No 2) (2012) 289 ALR 128 at [29]; Jones v Trad (2013) 86 NSWLR 241 at [50].
On that authority, there was a good basis for the prosecution even in the absence of evidence that any assault had in fact occurred.
The appellant relied on the decision in R v Holliday (2017) 260 CLR 650. That case, however, was different to this one. There, the offence charged was the incitement to procure a substantive offence. The Court found that such offence existed as a matter of statutory construction. However, it accepted that a person may be found guilty of incitement if they either urge a person to commit an offence or urge the commission of an offence generally. In either case, once the urging is done, the offence of incitement is complete: [30].
For those reasons, R v Holliday is of no assistance to the appellant here.
[5]
The offer to withdraw
On 26 August 2019, junior counsel for the appellant spoke to the prosecution and outlined the weaknesses of the prosecution case. He invited the prosecution to withdraw all the charges and said that if that occurred, the defendant would not seek costs and would undertake not to pursue civil claims in relation to the charges. That offer was not accepted.
The appellant says that the refusal of the offer was unreasonable and, as such, an award of costs is appropriate. The appellant did not rely on anything to support either proposition. The refusal of the offer was, in the circumstances, not unreasonable. There was a disconnect in the offer between the suggested weaknesses of the prosecution case and the potential bases on which the offer was made. First, the threat of a costs application necessarily required the assertion that the prosecution case was not only weak, but that it was unreasonable for it to have been brought at all, or confused. Secondly, the threat of a civil suit must have been a reference to a suit of wrongful arrest or imprisonment; however, the basis for such a claim has not been articulated and there is no evidence that it was ever articulated to the prosecutor. It is insufficient, in my view, to offer not to bring civil proceedings without explaining the basis for those proceedings and, at least to some extent, explaining why they are likely to succeed. Without that, the failure to accept the offer is not only, not unreasonable, but it is to be expected. This ground is rejected.
[6]
Quantification of costs
For the reasons I have given, I am satisfied that there is power to award costs in respect of the Local Court proceedings under the CP Act. Any order must be what the Court considers to be just and reasonable (s 213(2)) and the order must specify the amount of those costs: s 213(5).
The applicant did not adduce any evidence of the actual professional costs incurred by him in the Local Court. He was given leave to serve bills of costs, and appears to have done so, however, no application has been made to re-open his case and tender them. That is unfortunate because it is difficult to determine what is just and reasonable simply by having a stab in the dark: see Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552 at [7]. That said, it is not impossible.
The matter was heard in the Local Court before His Honour Magistrate Barko over two days on 2 September 2019 and 25 September 2019. On the first day, the applicant was represented by two counsel: Mr James QC who appeared with junior counsel, Mr Chrysostomou, in respect of the matter concerning Ms Garber, and Mr Chrysostomou in respect of the matter concerning Ms Griffin. The latter proceedings were dismissed for lack of a prima facie case and the former continued to a final hearing. On the second day, the applicant was represented by different counsel, Jones (there is no other identifying feature other than that name). It appears that Jones was instructed by a firm of solicitors, but there is no evidence that those solicitors were present at Court. The applicant was found guilty and sentenced. Subsequently, Mr Chrysostomou appeared again to apply for costs in the Griffin matters.
Given the nature of the matter, which involved a relatively straightforward, summary hearing, I do not think that it was reasonably necessary for there to be two counsel briefed to appear at the first day of the hearing. Even though there were legal issues involved, that was not beyond the capacity of junior counsel. However, although it is difficult to discern how much time was spent at Court on each day of hearing, long experience shows that counsel may have to be at Court for much longer than appears on a transcript, not just waiting for the matter to be mentioned, but in conference with the applicant and discussing the matter with the prosecution. For that reason, I consider that it is both reasonable and just to allow for two days' fee on hearing for junior counsel.
Again, in light of the issues involved, a reasonable amount of preparation would have involved one day including reading and conference.
It is appropriate to determine counsel's fees by reference to a daily rate. That is not only because it is a well-established method by which barristers charge fees, but also facilitates an assessment where the actual hours spent are unknown. The determination of a just and reasonable amount for counsel's daily rate must take into account some level of experience but also the relative difficulty of the matter. As I have said, this was not a matter that was so difficult that it warranted senior counsel, however, there was sufficient complexity to require at least some experience in practice. Doing my best, and having regard to past experience of rates regularly charged by junior counsel in different jurisdictions, it is appropriate to apply a daily rate of $3,000.
The amount for professional costs which I consider just and reasonable in connection with the hearing in the Local Court is $9,000.
On the appeal, the Court may order costs that it considers just if the preconditions to the power have been met. Again, for the reasons I have given, those preconditions have been met and I consider it just that there be an award of costs.
Although it is not necessary to specify the amount of costs to be awarded, it is only just to do so, in order to avoid further costs the parties may incur in the determination of that issue.
I will apply the same process of reasoning to the issue of costs in this Court as in respect of the proceedings in the Local Court. Although this Court was exercising appellate power, it is an appeal by way of rehearing on the papers. Again, I do not consider that it was reasonably necessary for senior counsel to appear, and consider that the appropriate daily rate is $3,000. Again, there were effectively two hearing days before me: one for the appeal and one for the question of costs. I was assisted on the second day by written submissions for which I would allow one day and a further one day of preparation for the hearing of the appeal itself.
For those reasons, I consider that it is just to make an award for professional costs of the proceedings before me in the amount of $12,000.
As the applicant will be entitled to an order for costs, there is no need to consider the alternative argument that there should be an order that a certificate for costs be issued under s 2 of the CCC Act.
I make the following orders:
1. The respondent pay the applicant's costs of the proceedings in the Local Court in the amount of $9,000; and
2. The respondent pay the applicant's costs of the proceedings in the District Court in the amount of $12,000.
[7]
Endnote
Tcpt, 2 September 2019, p 15 (23), Local Court, Downing Centre.
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Decision last updated: 28 August 2020