Logue v DPP

The factual basis

1. The principal fact on which the applicant relies in making his application for costs is the non-service by the prosecution of a body worn video (BWV), created on 6 August 2021, the day after the alleged offence.
2. The matter is perhaps best set out by way of a chronology as follows: Date Event 5.8.21 Alleged offence occurs 6.8.21 BWV created. 10.8.21 Applicant enters plea of not guilty 16.8.21 Matter set down for hearing on 15.3.22 2.9.21 Applicant causes to issue a subpoena to Commissioner of Police for production of material in relation to the investigation and brief 8.10.21 Police brief served on applicant; statement of SC Smith not served and was requested 15.10.21 SC Smith signs statement exhibiting the BWV 15.10.21 Return date for subpoena to Commissioner of Police. The BWV of SC Smith was not produced. The DPP accepts it should have been 10.2.22 Outstanding police brief items served, including photographs and statement of SC Smith. At [5] of that statement the officer states he activated his body worn video camera. The statement then says the BWV is exhibited and produced. That BWV was not served at that time on the applicant. The DPP accepts it should have been 15.3.22 First day of hearing 13.12.22 Second day of hearing 20.12.22 Third day of hearing and judgment An all grounds appeal was lodged 26.5.23 Applicant learns that the wall which the complainant alleged was tiled is in fact a plaster wall. The DPP does not respond to a request to concede this. The DPP also states the prosecution is pressed and states "I have received a digital version of the 25 images (tendered as exhibit 4) and the BWV of SC Smith. The admin team have requested that they be uploaded into a secure time box server for your access. I have been advised that this should occur shortly". 29.5.23 Application of applicant to lead further evidence on the appeal, namely the BWV. This was opposed by the DPP. The BWV was served that day. It shows the wall is not a tiled wall.

1. Section 183 CPA provides what the brief of evidence is to consist of. It is to consist of documents "regarding the evidence the prosecutor intends to adduce". It goes on to expressly include written statements taken from the persons intended to be called to give evidence which would include SC Smith and copies of any document identified in such a written statement as a proposed exhibit which as noted above included the BWV. There is no dispute in this case that the BWV ought to have been served as part of the police brief. The DPP accepts this to be so.
2. The above chronology shows: 1. The BWV was not served with the initial brief nor with the further brief material which was only approximately five weeks before the hearing date, nor at any time prior to the judgment of the magistrate. 2. The subpoena that was issued has not been complied with. 3. At all times, from when the BWV was created on 6 August 2021, the day after the alleged offence, the police knew, and from the time of the laying of the charge, the prosecution knew, or ought to have known, of the existence of the BWV. 4. From the time of the serving of the initial brief, or alternatively no later than 15 October 2021, there was an obligation upon the prosecution to serve the BWV. 5. The prosecution, and thus the prosecutor, remained in breach of their obligation under the CPA up to and throughout the hearing of the prosecution, and up to the time of judgment, to serve the BWV on the applicant.
3. The DPP accepted at the hearing of this application that the BWV ought to have been served as part of the police brief. There is no evidence before the court on this application explaining why the DPP failed to serve the BWV with the police brief whether that be initially or subsequently. There is no evidence before the court explaining why the subpoena was not complied with.
4. In the absence of any evidence explaining this, and in face of the fact that the BWV was referred to in the statement of SC Smith which was dated 15 October 2021, the inference can be and is drawn that at least since that date the BWV was in a producible form. That date 15 October 2021 was the very date on which the subpoena was returnable. Given the BWV was created on 6 August 2021, the BWV was able to be put into a producible form from that date.
5. It was almost 4 months after the statement of SC Smith that the supplementary material of the brief was served. Again, the DPP accept that this material should have included the BWV. Yet the BWV was not served.
6. The significance of this BWV is set out in the appeal judgment at [15], [23], [39] and [40]. In short, it damaged the credibility of the complainant including by showing that the complainant was wrong about an important piece of evidence, namely what it was upon which the applicant allegedly banged her head.
7. The issue of whether the complainant was right or wrong on this factual matter was something that the magistrate considered important. In her reasons at JT 108-109 she said this: During submissions, I interrupted defence counsel when the submission was made that I could not accept her evidence that the assault occurred as she alleged because, while she was consistent in her complaint that the assault occurred against tiles - and, to some people, tile wall, although Ms Oak (as said) could not be certain that she used the word "wall", but certainly the use of "tiles" was consistent - defence counsel submitted that it is more consistent with Mr Logue's account that she fell twice and hit her head on the tiled floor. The submission being made is that I should draw an inference that there were no tiles at all on the wall where she gave clear evidence and consistent evidence that that is where he repeatedly banged her head. As I said during my interaction with defence counsel - but I must repeat it now, during my remarks on sentence (sic) so it is clear - I can only decide this case on evidence. The evidence I have been given as to the surface of the wall are the photographs in exhibit 8. It was not put to Ms Cardow that the surface of the bathroom wall near the towel rack was not tiles - in other words, was not a hard ceramic surface. It was not put that it was an uninterrupted plasterboard surface. The photographs do not assist me in resolving that issues, as I said. And you can clearly see in the photographs there appear to be numerous photography artefacts, particularly horizontal lines and one particularly larger pale blue line. That certainly seems to be an artefact. The photos, unfortunately are not good quality. And it may well be that some people have better color photographs than the court was given. But I am the tribunal of fact. I am the jury. I can only assess this case on the evidence that has been admitted. And I cannot tell - and I cannot draw an inference - that there are not tiles on the surface of that wall. I cannot draw the inference that it is a plasterboard wall…. ……where the matter was not put to the principal Crown witness, and where the photographs just are not of a good quality, it may well be that it is plasterboard. But I certainly cannot draw the inference that it is not tiled. And I cannot draw a further inference that she was either dishonest or unreliable when she said he forced her head into a tiled wall. (underlining and bold added)
8. What occurred in submissions is at T96-97. The magistrate made it clear, the asked for inference as to not being a tiled wall would not be drawn based on the images in evidence.
9. Despite those remarks and despite the exchange that occurred in submissions, the prosecutor was mute. It is perhaps possible that the prosecutor was unaware of what had been occurring with the production of material and may have been simply presenting the case. The point remains that at a time when the magistrate was making these very adverse comments to the applicant in the course of the hearing and then also in her judgment, leading to her conclusion highlighted in bold above of not finding a significant inconsistency relating to the wall, the prosecutor stood by and did not alert the court to the fact that it was well known to the police that the wall was not a tiled wall. The underlined passages above show repeated reference by the magistrate to the state of the evidence not allowing her, in her view, to draw an inference that it was not a tiled wall, and all the time the prosecutor had evidence of just that, which the prosecution was obliged to serve, and did not serve, and did not make known to the magistrate.
10. There were some submissions made both on the appeal and in this application to the effect that when the further evidence of SC Smith was given at the appeal hearing he said that the wall was in effect a wall that seemed to him harder than the usual plaster wall. He readily accepted that he was no expert. That was commented on in the appeal judgment at [15]. The BWV was played as fresh evidence in the appeal hearing. It is plainly a wall which when knocked upon sounds like a nonstructural gyprock/plaster wall of a type that people in ordinary experience are exposed to on a regular basis. It is far from a tiled wall.
11. To obtain a certificate under the CCCA it must be established that had the evidence in question been known prior to proceedings commencing it would not have been reasonable for the proceedings to be instituted. As will be seen, under ss70 and 214 that is not the test but rather the test of subsection (1)(d) is whether, because of the exceptional circumstances, it is just and reasonable for costs to be awarded. In considering that matter it needs to be remembered that the purpose of a costs order is not to punish a party but to compensate a party; see Latoudis v Casey (1990) 170 CLR 534.
12. Should the above matters, which resulted in relevant evidence known to the prosecution not being before the Court, be found to be exceptional circumstances, the question emerges as to whether, because of those exceptional circumstances, it is just and reasonable to order costs. In order for it to be just and reasonable, is it necessary that the evidence in question, the BWV, be determinative of the proceedings, or is it enough that it was evidence that was of significance and favourable to the applicant, without necessarily being determinative?

The legislative scheme

1. Sections 70 and 28 of CARA provide as follows: 28 MISCELLANEOUS POWERS (1) Without limiting its other powers, the District Court may do any one or more of the following-- (a) it may specify the proclaimed place (within the meaning of the District Court Act 1973 ) at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (b) it may specify the sitting at which the hearing of an appeal or application for leave to appeal is to be heard or continued, (c) it may adjourn the hearing of an appeal or application for leave to appeal. (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. (3) Subject to section 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. 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. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979 ) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003 .
2. Sections 213 and 214 of the CPA provide as follows: 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. 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.
3. Both parties made helpful submissions as to the interpretation and application of these provisions.
4. For the DPP reference was made to the decision of Halpin v Dept of Gaming & Racing [2007] NSWSC 815. The point made there which is not in dispute is that section 70(1)(a) and (c) are concerned with investigations and not proceedings. Thus the conduct of the proceedings may be reasonable but the investigation may not be.
5. Section 70 (1)(b) requires satisfaction that the proceedings were initiated without reasonable cause or in bad faith. Halpin referred to the decision of Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 for the proposition that "a proceeding will be instituted without reasonable cause if it had no real prospects of success or was doomed to failure".
6. The DPP argues that the investigation was swift and thorough. The non-provision of the BWV is said to be a matter of the conduct of the case rather than investigation. That the BWV was available from an early time, namely the day after the alleged offence, speaks of an efficient investigation, and not one falling within subsection (1) of s70 or 214 . The DPP makes the point that the submission the applicant made that the complainant's evidence was unreliable because the wall she claims was tiled was not tiled was based on having seen other material in the brief which included some 25 photographs.
7. The DPP further submitted that the exceptional circumstances required by subsection (d) were not present. Here reference was made to Dong v Hughes [2005] NSWSC 84, a decision of Levine J.
8. His Honour was dealing with what was then section 81(4) of the Justices Act which was in terms almost identical to section 70(1) and thus very similar to section 214. At [47]-[48] his Honour said: 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 s81(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 s81(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." (underlining 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".
9. This interpretation makes it plain that the words "it is just and reasonable to award…. costs" found in subsection (1)(d) of both s70 and 214 are to be read only in connection with subsection (d). Those words are not a tailpiece that applies to the preceding subparagraphs (a), (b) and (c). That view is supported by the structure of the section where those words are contained within the sub paragraph rather than being separated out so as to indicate application to all of the subsections of subsection 1. Furthermore, it is consistent with the first three subsections requiring some degree of unreasonableness or impropriety. Further still, both subsections (b) and (c) require consideration of whether there was reasonable cause to initiate the proceedings although subsection (b) has further alternatives. Put another way, in order for the threshold of section 70(1)(a) and for some part of subsection (b) to be crossed or satisfied does not require a finding that but for whatever might be established the proceedings might not have been instituted. So, if the investigation has not been properly conducted it is open to the court to then award costs. That is a discretionary matter. One of the matters may well be the extent to which the impropriety relied upon and established has impacted overall on the conduct of the proceedings
10. Insofar as subsection (d) is concerned there are in effect two matters that need to be satisfied. One is that there are exceptional circumstances relating to the conduct of the proceedings by the prosecutor (first limb), and because of that it is just and reasonable to award costs, (second limb).
11. Whilst the terms of section 214 are not in precisely the same terms as section 70 there is no reason to think it should be interpreted differently than section 70 in this regard, and there was no submission to that effect at least so far as the "threshold" issue was concerned.
12. The applicant relied upon Dempsey v DPP [2019] NSWCA 267. The appeal judgment of that case suggests the facts were possibly somewhat similar to the present case. In that case it seems the Crown did not lead evidence of accounting records in a case where the accused said the monies she took were reimbursing her for payments she had made for the company. The conviction appeal was upheld on the basis that the magistrate had reversed the onus, and the appeal judge awarded costs, but reduced the assessed costs as evidenced by 30%. The case however is really more about quantum and does not assist in terms of the threshold question.
13. The submission for the applicant was that the investigation was conducted in an unreasonable or improper manner. It was also submitted that the proceedings were initiated without reasonable cause. In support of those two propositions the applicant relied upon firstly R v Pavy (1997) 98 ACrimR 396 at 401 that the public interest in prosecuting crime does not make it reasonable to proceed in the face of significant weaknesses in the Crown case and secondly that the quality of of the evidence is to be considered bearing in mind not only the enquiries made but those not made; see JD v DPP [2000] NSWSC 1092.
14. In respect of subsection (d) the applicant also referred to Halpin, where Hall J stated: The expression "exceptional circumstances" is a broad one. Without it being necessary to define its outer limits, the question essentially is whether or not there was any relevant conduct by the prosecutor which would make it "just and reasonable" to award costs in favour of the plaintiff"
15. The factual matters of this case that the applicant relied upon as making it just and reasonable to award costs were: 1. The failure to serve material that the prosecutor was or ought to have been aware existed, a clear reference to the BWC: 2. Failure to adduce that material: and 3. Failure to produce that material in answer to the subpoena.
16. The submission goes on to argue the evidence was of some significance for reasons that in summary were: 1. It showed there was no damage to the wall. 2. It depicted the dimensions of the bathroom space (that is where the offence allegedly occurred) in a way that still images did not. 3. It confirmed the make up of the wall as it showed the police knocking it with their hands showing it not to be tiled.
17. The submission is then put in broader terms calling for a costs order in effect to condemn what is said to be the improper behaviour of the prosecutor of withholding evidence or at least not serving what it ought to have been aware of. What is relied upon is the initial and continuing non-service of the material, the non-answer to the subpoena where it is not disputed the material was caught by the terms of the subpoena; and made worse still by the opposition to the application to call fresh evidence on the appeal. It is argued that but for the granting of the fresh evidence application the material would never have been adduced and put before the court which would have led to a miscarriage of justice.

Consideration

1. I accept the submission for the DPP that this is a case which does not fall within subsections (1)(a), (b) or (c) of either section 70 or section 214. The reason for that is that what has occurred here is not a deficient or inadequate investigation, but rather an investigation that located relevant information. It was that relevant information that was then not disclosed in the conduct of the proceedings. As to subsection (b), despite the ultimately (on appeal) findings as to the credit of the complainant, that does not make the case one where it should not have been initiated. This was a case of largely the word of the complainant against the word of the applicant. The onus of course was always on the prosecution, but it was appropriate that the matter of credit be determined by the court. That fact is one which heightens the significance of the failure to serve the BWV.
2. The interpretation of the term "exceptional circumstances" set out above from the case of Halpin is very broad. The term is one found in other legislation, for example the Bail Act including at section 22B and also in the Crimes Act (Cth) at s20(1); see eg DPP v Van Gestel [2022] NSWCCA 171 in relation to the former and R v Tootell ex parte AG [2012] QCA 273 as to the latter. In Tootell it was said: We must construe "exceptional" as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered".
3. Whether there are exceptional circumstances is a case-by-case consideration. The approach in Van Gestel is perhaps even broader, and very much in line with Halpin, referred to at [37] above. At [51]-[52] the Court of Criminal Appeal said: The approach of this Court to s 22 of the Bail Act has been not to set out an exhaustive list of factors that may constitute "special or exceptional circumstances". In El-Hilli and Melville v R [2015] NSWCCA 146 at [29], Hamill J (Simpson and Davies JJ agreeing) said that special or exceptional circumstances "may exist in the combination of factors or in 'the coincidence of a number of features' ... It is not possible to determine or predict in advance what those features may be." In Director of Public Prosecutions (NSW) v Duncan [2022] NSWSC 927 at [48], after referring to dictionary definitions of the words "special" and "exceptional" in the Macquarie Dictionary 2022, and earlier authorities in relation to s 9C of the Bail Act 1978 (NSW) which also considered dictionary definitions, Bellew J adopted the approach in El-Hilli and Melville v R and said that given the facts of cases obviously differ, whether circumstances are special or exceptional for the purposes of s 22B involved a case-by-case determination. That approach should be followed.
4. Two cases not mentioned by the parties were Rowlands v R (No.2) [2022] NSWDC 273, and State of New South Wales v Cuthbertson [2018] NSWCA. In Rowlands, Mr Rowlands successfully appealed Local Court convictions for offensive language and resisting arrest. He sought an order for costs. In the costs application the court considered section 70 of CARA. In that case it was found that the "threshold" specified in section 70 had not been reached so that the application under that section failed.
5. In the alternative sections 2 and 3 of the CCCA were relied upon which do not have the same threshold requirements as section 70. The test there is different, namely that the proceedings would not have been instituted had the "prosecution been in possession of evidence of all relevant facts". It was held that "threshold" had not been met either. The application therefore was dismissed.
6. At [2] of Rowlands the following relevant observation was made: At common law, and traditionally, costs were not awarded in criminal proceedings. The power to award costs in a criminal case requires statutory authority.[2] This Court is empowered by statute to make an order "as it thinks just" as to the payment of costs, including that the Director pay Mr Rowlands' costs.[3] But in order to obtain a costs order in a public prosecution, as this was, the applicant must satisfy the requirements in s70 of the Crimes (Appeal and Review) Act 2001.
7. Judge Taylor SC in Rowlands also set out helpfully at [6]-[7] the following: Section 70 arose from the New South Wales Law Reform Commission report. The report concluded: "It would be an exceptional case where a defendant was convicted at trial but acquitted on appeal, and it was not reasonable for the prosecution to have instituted the proceedings in the first place."[4] The Court of Appeal has stated: "The circumstances in which costs may be awarded in criminal proceedings is significantly circumscribed. In summary, those circumstances are directed to impropriety or unreasonableness in investigating the charges, or in initiating or conducting the prosecution in the Local Court, including on the basis of bad faith. Those constraints evince a clear legislative purpose that costs may only be awarded in the circumstances for which the legislature has provided." [5]
8. The case cited for the Court of Appeal statement is Cuthbertson at [65]- [66].
9. Cuthbertson was a case alleging assault and wrongful arrest and false imprisonment which was successful. It was a civil case and costs were awarded including a sum representing 50% of the plaintiff's legal costs for defending the criminal proceedings. In respect of those costs it was held they could not be said to be the natural and probable consequence of the tortious conduct of the wrongful arrest. It was at [65] of Cuthbertson that the passage set out above is found.
10. What subsection (1)(d) of s70 and 214 requires, as noted at [33] above, is for there to be some exceptional circumstance relating to the conduct of the proceedings by the prosecutor and secondly that because of that exceptional circumstance, it is just and reasonable to award professional costs. It differs from the CCCA in that it is not necessary for a person to succeed in obtaining an award of costs under section subs (1)(d) to show that had the matter relied upon to make out the threshold been known prior to the institution of the proceedings that it would not have been reasonable to prosecute in the first place.
11. I accept the submission for the applicant that there are exceptional circumstances relating to the conduct of the proceedings by the prosecutor. There is accepted by the DPP to have been non-compliance with section 183 of the CPA, and it is accepted that there ought to have been production of the BWV in answering the subpoena. There has been no attempt by the DPP on this application to provide some explanation as to why the proceedings were conducted in that way. On the same day that the subpoena was returnable which is accepted to be the day on which the video should have been produced, SC Smith signed his statement to which he exhibited that same video but it was not served. Without hearing from or cross examining the actual prosecutor or SC Smith no finding can be made that the non-production and non-service of the video was deliberate. I do not make that finding. I do however find that the prosecution at all relevant times from the day after the alleged offence was aware of the existence of the video by reason of the fact that it was created by SC Smith at that time, and he then exhibited it to his own statement on 15 October 2021.
12. These are exceptional circumstances in the conduct of the proceedings by the prosecutor. To adopt the approach of Tootell, these circumstances are out of the ordinary, unusual, and not normally encountered.
13. The position becomes more exceptional by reason of the fact that the prosecutor stood by and failed to assist the Local Court in a way that a prosecutor, indeed any legal representative, is required to do, namely to be of assistance to the court and ensure that the court is not misled. The exchange that occurred between the magistrate and the counsel for the applicant challenging the making of the inference that the wall was not tiled should not have been allowed to pass without comment by the prosecutor. That is not to make an adverse finding to the prosecutor as he has not been the subject of any allegation of misconduct, but the circumstance had evolved into one where a person charged with a serious matter of assault occasioning actual bodily harm was prevented from relying on a significant fact because of the failure of the prosecution to comply with its obligations under both the CPA and the laws relating to subpoenas, and then perhaps just due to plain ignorance on the part of the prosecutor, did not have the benefit of a concession that frankly ought to have been made by the prosecution.
14. Arguably it can be said that the existence of the BWV was known to the applicant by the service of the statement of SC Smith on 10 February 2022, which referred to the BWV as being exhibited to that statement (albeit that the BWV was not served with the supplementary brief), and the applicant's representatives ought to have sought a copy of the BWV being referred to. That argument should be rejected for it does not sit well in the mouth of the DPP to be saying that the failure of the prosecution to produce the BWV, that the prosecution accepts should have been produced by the prosecution, is to be excused because the person upon whom they should have served that material should have instead pressed them to do what they are obliged to do. Furthermore the BWV was the subject of a subpoena which is an order of the court and that was not complied with by the Commissioner of Police. As already noted, none of this is explained. Indeed the very non production of the BWV by the prosecutor may have encouraged the applicant to be of the view that nothing of relevance was on that video. Whether there was any identification of a factual issue as to the make up of the wall prior to the applicant's final submissions to the magistrate is not something the evidence addresses.
15. The next question is whether, because of the found exceptional circumstances, it is just and reasonable to make an award of costs.
16. This was a case in which the credit of the complainant was always central. The appeal judgment identifies a range of matters in which the complainant's reliability was brought into question. In my view even without the BWV there was significant reason to find that the complainant was unreliable; see [43] of the appeal judgment.
17. The magistrate plainly took a different view but even the magistrate noted some of the difficulties with the complainant's evidence. As noted at [40] of the appeal judgment the magistrate noted the complainant was intoxicated and had downplayed the extent of her intoxication.
18. The magistrate also appears to have been of the view that the issue of whether or not the wall was a tiled wall was of particular significance, in light of the way she dealt with it in the judgment as set out at [18] above.
19. The identified exceptional circumstances relating to the conduct of the proceedings by the prosecutor have resulted in a matter on which the magistrate placed some significance not being able to be taken into account favourably for the applicant in circumstances where it obviously should have been able to be taken into account favourably for the applicant.
20. Had the error of the complainant in her evidence as to the wall been able to be taken into account favourably for the applicant as it should have been, that would have been one further matter adverse to the credibility of the complainant, and it is possible that may have swayed the view of the magistrate. Whilst it cannot be said that the conduct of the proceedings which has been identified to be exceptional circumstances resulted in the conviction at first instance, although it may have, it can be said that it has resulted in the prospects of the success of the applicant being less than what they should have been.
21. For that reason, and to answer the questions raised at [22] above, it is just and reasonable for the award of costs to be made.
22. Both parties made submissions concerning the provisions of the CCCA. As noted above including at [22] and [50] the requirements of the CCCA are different to those of subsections (1)(d) of sections 70 and 214. It is not necessary to consider the CCCA in light of the findings made in respect of sections 70 and 214.
23. The basis of this decision is the impact upon the conduct of the proceedings of the non-production of the BWV, and the conduct, be it knowing or unknowing conduct, of the prosecutor identified above in the course of the proceedings. As already noted, the argument of the DPP that there had been reference to the BWV in the statement of SC Smith does not counterbalance or neutralise the non-compliance of the prosecution with its obligations that have been identified.
24. This decision is not based on the argument as was put by the applicant to the effect that there should be some consequence for the prosecution in having acted in breach of their obligations. Fundamentally as established by Latoudis the purpose of costs is to compensate and not to punish. That said, the term "just and reasonable" may well be argued to temper that principle particularly in circumstances such as these. Nevertheless, I am of the view that it is not necessary for that to be decided here.

Orders

1. The respondent is to pay the applicant's costs in the sum of $53,994.31 by no later than 14 December 2023.
2. In anticipation of an application by the applicant, and subject to any submissions the respondent may wish to make, the respondent is to pay the applicant's costs of the costs application in such sum as is agreed by no later than 14 December 2023 and in the event that the parties do not reach agreement then the matter is listed for further mention in that regard on 14 December 2023.

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: 16 November 2023