Ian Campbell & 4 Ors v Director of Public Prosecutions [2009] NSWSC 973 | Case summary

JUDGMENT ON COSTS 1 HIS HONOUR: On 3 December 2008 I allowed appeals by the five plaintiffs against their convictions in the Local Court of affray and, in the case of one of them, assault occasioning actual bodily harm: Campbell & Ors v Director of Public Prosecutions (NSW) [2008] NSWSC 1284. The plaintiffs seek an order for costs. For that purpose an affidavit of their solicitor, Craig Longman, setting out particulars of the amount of costs sought, was read. It was agreed that I should determine first whether the plaintiffs are entitled to costs at all. 2 The application for costs is governed by s 70 of the Crimes (Appeal and Review) Act 2001. The effect of that section is that where an appeal succeeds against a conviction in summary proceedings instituted by a public prosecutor, the appellant is not entitled to costs as a matter of course. It must be shown that there was unreasonable conduct or impropriety in the investigation of the matter or in the initiation or conduct of the proceedings, or that there are exceptional circumstances relating to the prosecutor's conduct of the proceedings. 3 For present purposes, the plaintiffs rely upon s 70(1)(a), which 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, …" 4 In JD v DPP [2000] NSWSC 1092, I had occasion to consider a provision in identical terms in s 41A(2A) of the Justices Act 1902 (since repealed). I found that a magistrate had fallen into error in approaching the provision on the basis that the fact "that an investigation does not come up to optimum expectations would not put it in the category of being unreasonable or improper unless it was grossly below optimum standards …" I noted that no such expression appeared in the provision, and that to apply such a test would be "to place an unwarranted loss upon its terms": [30]. 5 I expressed my conclusion in this way at [31]: "Obviously, an investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. … The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it." 6 This leads me to a comment I must make about the decision of Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815. In that case his Honour considered s 70 of the Crimes (Appeal and Review) Act, and at [49] referred to my decision in JD as authority for the proposition that "the expression 'unreasonable or improper manner' embraces the notion of the conduct of investigations in a way or by a method or a mode of procedure that grossly falls below the relevant standards applicable to the relevant type or class of investigation". That appears to have been drawn from my judgment at [24], where I quoted the passage in the magistrate's reasons which I found to be in error. That, of course, is not what I held to be the case, as was recognised by Jagot J in Wollongong City Council v Ensile Pty Ltd (No. 9) [2008] NSWLEC 248 at [9] - [10]. The problem may have arisen because of the format of some computer generated printouts of judgments by which a quoted passage is not clearly distinguished from the main text. I was handed such a printout of my judgment at the hearing of this application. 7 JD was also concerned with other aspects of the section of the Justices Act dealing with costs against a prosecutor, to which it is not necessary to refer. It is sufficient to say that I was not called upon to decide whether the investigation in that case was unreasonable or improper because, having found that the magistrate had fallen into error in relation to the relevant provision, the relief sought was that the matter be remitted to the Local Court for redetermination. 8 In the present case I have the benefit of written submissions by Mr Longman, pursued in oral argument by Mr Levitt, solicitor, the principal of the firm where Mr Longman was employed. Reference was made to three cases in which investigations were held to have been unreasonable because of a failure to pursue relevant inquiries or to interview a material witness. One of them involved another provision of the Justices Act in the same terms as s 70: Eslarn Holdings Pty Ltd v Tumut Shire Council (No. 3) [1999] NSWLEC 163. The other two were concerned with s 70: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13, and Wollongong City Council v Ensile Pty Ltd (supra). 9 The present case is not of that kind. The expressions "unreasonable" and "improper" in s 70(1)(a) are related but, as this case shows, they are distinct. What is challenged here is not the adequacy of the investigation, but the propriety of it. Mr Levitt's argument was founded on the behaviour of the police which was the focus of my principal judgment. 10 He relied upon the elucidation of the nature of impropriety in The Queen v Byrnes and Hopwood (1995) 183 CLR 501. The case was concerned with a provision of the South Australian Companies Code directed to the improper use of his position by an officer or employee of a corporation to gain an advantage. In the joint judgment at 513, it was recognised that "improper" is an indefinite term. Obviously, it falls to be considered in the context in which it is used. Nevertheless, I am assisted by the following passage from the joint judgment at 514 - 5: "Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case." 11 Mr Levitt relied upon passages from my principal judgment concerning the failure of the investigating police to comply with cl 33 of the Law Enforcement (Powers and Responsibilities) Regulation. This was the central issue in the appeals by all of the plaintiffs except Vivian Campbell, who was not interviewed and whose appeal was allowed on a different basis. 12 At [15], I noted that the magistrate had found that there had not been notification to the ALS as required by cl 33(1) and that, even if there had, it would have been futile because the four plaintiffs had presented themselves to police outside normal business hours. I thought it reasonable to infer that if there had been such a notification during business hours, the attendance of an ALS representative at the police station within a reasonable time could have been arranged: [19]. On the evidence, there was no reason why the police could not have had the plaintiffs return to the police station the following day during business hours: [18]. The magistrate found that there was "a general procedure" to provide the required notification to the ALS by fax after hours, even though police were aware that there would almost certainly be no response because there was usually no ALS representative at the office at that time: also at [15]. 13 I concluded that each of these four plaintiffs was "interviewed at a time when cl 33 had not been complied with and when, to the knowledge of the police, there could not have been effective compliance". Thus, as the evidence stood, the police had deliberately failed to comply with an important provision for the protection of vulnerable persons in their custody: [20]. The recorded interviews which were conducted were a significant part of the evidence against the plaintiffs: [23]. 14 For the Director, I was assisted by the written submissions, developed orally, of Ms Adams of counsel. She drew my attention to the principal judgment at [14], in which I noted the unchallenged finding of the magistrate that, apart from cl 33, the police had sought to comply with the LEPRA requirements. There was evidence that the plaintiffs had been informed of their rights, both orally and in writing, by the custody managers dealing with them, and that each had been cautioned at the outset of his interview. Accordingly, his Honour found that it could not be said that the police "deliberately went out of their way to cut corners and to provide no assistance" to the plaintiffs concerning their rights or the responsibilities which the police owed to them. Against that background, Ms Adams argued, I should not find relevant impropriety. 15 However, the fact remains that an important aspect of the LEPRA requirements, enshrined in cl 33, was not met. I found that breach to be deliberate, and the measure of that impropriety stood to be assessed against the background of a practice by police in the relevant area which denied to Aboriginal people the protection the clause was intended to afford them. It was in these circumstances that the four plaintiffs participated in recorded interviews which, as I have said, constituted a significant part of the case against them. 16 I am satisfied that, for the purpose of s 70(1)(a), it has been established that the investigation was conducted in an improper manner. That being so, my discretion to award costs to the plaintiffs is enlivened and I see no reason why it should not be exercised in their favour. In so saying, I take into account the fact that the issue upon which the appeal succeeded was not given the attention it deserved at first instance: see the principal judgment at [17] - [18]. I should also remind the police officers involved that the award of costs does not reflect upon their general competence or their integrity. 17 Of course, none of this reasoning applies to Vivian Campbell, who was not interviewed, and no submission was made to me concerning costs in her case. This may be of no moment because the appeal was conducted on behalf of all five plaintiffs in one proceeding, in which all were represented by the same solicitor and counsel. For practical purposes, it may be that no purpose would be served by awarding costs to four of the plaintiffs but not to the fifth. This, however, is a matter which the parties may wish to consider and, in any event, it will be necessary to hear them on the formal order which should be made.

Ian Campbell & 4 Ors v Director of Public Prosecutions

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