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[2025] NSWSC 1569
Supreme Court of NSW
2025-12-19
Price AJA
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: M v Joya [2025] NSWSC 1569
Hearing dates: 3 December 2025
Date of orders: 19 December 2025
Decision date: 19 December 2025
Jurisdiction: Common Law
Before: Price AJA
Decision: (1) Extend the time for the plaintiff to commence these proceedings to 12 July 2025.
(2) Quash the decision of Barlow LCM made on 21 March 2025 dismissing the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW).
(3) Remit the matter to the Chief Magistrate of the Local Court of New South Wales for referral to a differently constituted court to determine the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW) in accordance with law.
(4) The first and second defendants are to pay the plaintiff’s costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – decision of Magistrate dismissing application for costs in criminal case – where charge withdrawn by prosecution – whether jurisdictional error – whether wrong question asked – whether irrelevant considerations taken into account – where new points raised – whether material error
Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14
Crimes (Local Courts Appeal and Review) Act 2001 (NSW), s 70(1)
Criminal Procedure Act 1986 (NSW), ss 213, 214(1)
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited: Acuthan v Coates (1986) 6 NSWLR 472
Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349
Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451
Bradley v Senior Constable Chilby [2020] NSWSC 145; (2020) 281 A Crim R 336
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39; (2025) 338 IR 301
Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58
De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154
Dyason v Butterworth [2015] NSWCA 52
HO v R [2023] NSWCCA 245
Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1
Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161; (2019) 278 A Crim R 592
Mikhaylova v Commissioner of New South Wales Police [2025] NSWSC 542
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
O’Brien v Hutchinson [2012] NSWSC 429
R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197
R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321
RB v Director of Public Prosecutions (NSW) [2015] NSWSC 248
Sleiman v Gadalla Pty Ltd [2021] NSWCA 236
Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64
Texts Cited: Judicial Commission of New South Wales, Criminal Trial Courts Bench Book
Category: Principal judgment
Parties: M (Plaintiff)
Constable Samuel Joya (First Defendant)
Local Court of New South Wales (Second Defendant) (submitting appearance)
Representation: Counsel:
E Vuu (Plaintiff)
A Bhasin (First Defendant)
Solicitors:
McGirr & Associates (Plaintiff)
Crown Solicitor’s Office (First and Second Defendants)
File Number(s): 2025/267681
Publication restriction: Pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name or any matter which could identify any child is prohibited.
PRICE AJA: These proceedings arise from a decision by Magistrate Barlow (“the Magistrate”) in the Local Court made on 21 March 2025 refusing the plaintiff’s application for a costs order against the first defendant, Constable Samuel Joya, under ss 213 and 214 of the Criminal Procedure Act 1986 (NSW) (“the CPA”), when the charge against the plaintiff for contravening an apprehended domestic violence order (“ADVO”) contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (“the CDPV Act”), was withdrawn.
By summons filed on 12 July 2025, the plaintiff challenges the Magistrate’s decision by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). During the hearing, the plaintiff no longer pressed prayer 3 of the summons and therefore seeks relevantly the following orders:
“2 Pursuant to s 69(1)(e) of the [Supreme Court Act], an order in the nature of a writ of certiorari quashing the decision of [the Magistrate] to refuse an award of costs in favour of the [p]laintiff under s 214(1) of [the CPA].
…
4 … pursuant to s 69(1)(e) of the [Supreme Court Act], an order remitting the proceedings to the Local Court, differently constituted, with an order in the nature of a writ of mandamus, to decide the application for costs under s 214 of [the CPA], according to law.”
“Ground 1: [the Magistrate] erred in taking into account an irrelevant matter(s) in refusing to award professional costs under s 214(1) of [the CPA], under any of ss 214(1)(a), (c) or (d) of that Act.
Ground 2: [the Magistrate] misapprehended the law regarding the prosecution’s duty of disclosure and/or duty to investigate or investigate properly any relevant exculpatory matters when refusing to award the [p]laintiff costs under any of ss 214(1)(a), (c) or (d) of [the CPA].”
The plaintiff requires an extension of time within which to bring these proceedings having filed its summons around 21 days out of time: r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). Rule 59.10 of the UCPR specifies that proceedings for judicial review must be commenced within 3 months of the date of the decision subject to the power of the Court to extend that time.
The principles applicable to the consideration of an application for an extension of time are well-known: Truong v Director of Public Prosecutions (NSW) [2023] NSWCA 64 at [56] (Ward P, Brereton JA and Griffiths AJA agreeing) and the authorities there cited. The relevant factors to be considered in determining whether to extend time include those provided under r 59.10(3) of the UCPR and in addition, the length of any delay, the reason for the delay and whether the plaintiff has a fairly arguable case: Dyason v Butterworth [2015] NSWCA 52 at [65] (McColl JA, Barrett and Gleeson JJA agreeing) citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA) and Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9] (Basten JA, Barrett and Emmett JJA agreeing). The plaintiff bears the onus of persuading this Court that the extension of time should be granted.
The plaintiff submitted five arguments in support of its application for an extension of time which it argued when considered in combination favoured the time being extended citing RB v Director of Public Prosecutions (NSW) [2015] NSWSC 248 at [17]-[19] (Hidden J) (“RB”). The plaintiff’s submissions included that there was no prejudice to the defendant flowing from the delay of around 21 days and an explanation as to the reasons for the delay are provided in the filed affidavit of the plaintiff’s solicitor sworn 17 October 2025; the plaintiff has a particular interest in challenging the Magistrate’s decision given that the charges were withdrawn by police; there is a public interest in correcting patent errors in the decisions of the Local Court; and the plaintiff has a fairly arguable case for judicial review of the Magistrate’s decision.
The defendant opposes the extension of time but concedes that there is limited prejudice suffered by it if the extension were to be granted. In the defendant’s written submissions, the arguments opposing the extension were advanced with particular reliance on the decision of Faulkner J in Mikhaylova v Commissioner of New South Wales Police [2025] NSWSC 542 at [92]-[93] (“Mikhaylova”). The difficulty which immediately arises from the defendant’s reliance on Faulkner J’s decision in Mikhaylova is that his Honour in that case granted an extension of time in relation to a summons which was filed around 3 months out of time: at [94]. The defendant further argued that there is a strong public interest against allowing a challenge to a costs decision and that the plaintiff’s case lacked merit. In oral submissions, the defendant’s counsel, Mr Bhasin submitted that the extension of time application will turn on my consideration of the plaintiff’s grounds of review.
As will be evident from my consideration of the plaintiff’s grounds of review below, the plaintiff has a fairly arguable case. Accordingly, I am satisfied that the plaintiff should be granted an extension of time to commence these proceedings under r 59.10(2) of the UCPR.
On 18 January 2024, the plaintiff was charged with a number of domestic violence offences against the complainant, his ex-wife. An ADVO was granted on that day for the protection of the complainant and their two children, VC and EC. It was a standard condition of the ADVO that the plaintiff was neither to approach nor to contact the complainant, VC and EC.
It was alleged that the plaintiff breached the ADVO when he and his mother were seen by VC and the complainant at the Waverley netball courts on 14 September 2024. The complainant and VC provided statements to police on 16 September 2024. VC was 9 years old at the time.
In VC’s statement, she stated that she was at the Waverley netball courts to watch EC play netball and had taken the dog for a walk with her friend, LW, who was also a child aged around 9 years old, when she saw the plaintiff and his mother at the bottom of the stairs near the canteen. VC said that the plaintiff had tried to wave her over to him but after seeing the plaintiff, she turned around and went back up the stairs to the complainant. The complainant in her statement stated that VC came running up the stairs and told her she had seen the plaintiff and his mother. The complainant said she initially thought VC was mistaken about seeing the plaintiff and his mother but when she went over to the top of the stairs with VC, she then saw it was them. The complainant stated that when she saw the plaintiff and his mother, they were walking away from the netball courts and did not see her. This version of events was reproduced in the police facts.
The plaintiff was subsequently arrested by police later that day on 16 September 2024 and charged with contravening an ADVO contrary to s 14(1) of the CDPV Act. The plaintiff did not participate in an electronically recorded interview with police.
The matter was listed for hearing at the Waverley Local Court on 11 February 2025. However, on the morning of the hearing the charge against the plaintiff was withdrawn and on that basis the plaintiff brought an application for costs under ss 213(1) and 214 of the CPA which was heard on 21 March 2025.
“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.
…
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.”
In the proceedings in the Local Court, the statements of the complainant and VC were tendered together with photographs of the CCTV cameras in the area of the Waverley netball courts. Constable Joya’s evidence in chief included attending the Waverley netball courts after obtaining the statements from the complainant and VC to ascertain whether there were “any cameras … on that incident”: Tcpt, 21 March 2025, p 5(15-19). He said there was no footage capturing the incident although there were a number of cameras located in that area. Constable Joya stated that he and Constable Magill undertook a thorough search but he was unable to identify the incident taking place. He did not obtain the CCTV footage, but accepted that it would have been better to have obtained it.
Constable Joya gave evidence that he was aware that there were allegations of the plaintiff’s mother being present at the scene and agreed that she would be a direct witness to the incident. On this issue, Constable Joya gave the following evidence:
“Q. Because, as you agreed, she is a direct witness, she was there?
A. Allegedly.
Q. Allegedly; correct. Now, at no stage then did you attempt to obtain a statement from the [plaintiff’s mother]; would that be correct?
A. No, we didn’t - nothing was tried, no.
Q. Yes. And is it correct that you were subsequently made aware by material provided by the defence that she was, in fact, in Slovakia during this alleged 10 incident?
A. I wasn’t aware till the day before the hearing.
Q. Yes.
A. I didn’t see any of that paperwork before the day of the hearing.
Q. I see. But you accept that she was not in the country at the time of the alleged …
A. From what was given to me on the day of the hearing, that was first to us.
Q. Yes. First …
A. We did …
Q. First time you heard?
A. First time I heard.
Q. Okay. Now, would you agree that had you obtained the [plaintiff’s mother’s] details, you would have been able to ascertain that?
A. Yes, correct. It would have been another pathway to find out.
Q. Yes. You can do an immigration check via iASK, I believe?
A. I believe so. There is - there is a way.
Q. Yes. Now, had you not - I will withdraw that. Had you known that the [plaintiff’s] mother was not in Australia, would that have made you reconsider charging [the plaintiff]?
A. Her name isn’t on the [ADVO]. So, she wouldn’t be breaching the - the [ADVO]. The matter …
Q. Sorry, I might have confused you with the way I asked the question. If you found out that the [plaintiff’s] mother was not in Australia and, in fact, in Slovakia where she was, would you still have charged [the plaintiff]?
A. Well, it was - it was - it’s alleged. I’m not - we’re not - we have - we received a statement. We were told a version. Since it’s a domestic violence incident, if I was to see - if I was to view that CCTV and see that there was no mother there, then - then there would have been a bit of a different result.
Q. What do you mean by that, ‘a bit of a different result’?
A. We would have looked at it - at what the actual action is. I wasn’t more focused on the [plaintiff’s mother], just because the [plaintiff’s mother is] not on the [ADVO], so she wouldn’t be committing an offence. It would be more focused on [the plaintiff] himself.
Q. But you understand the concept, if there was evidence that the [plaintiff’s] mother wasn’t there, then the evidence of [the complainant] and [VC] would be questioned; right? Surely?
A. Correct.
Q. So, had you obtained the CCTV and had you obtained an immigration check about the [plaintiff’s] mother, that would have prevented you from charging had it proved that they were both not there; correct?
A. Well, I didn’t charge. It wasn’t up to - up to me to charge.”
Constable Joya was asked about LW, who he agreed was another direct witness and said was also a child. He said no details were taken about LW. He agreed that there was nothing stopping him obtaining LW’s details. During Constable Joya’s cross-examination, statements of Constables Anderson and Townsend, who were the arresting officers, were tendered as were police body worn video recordings of the statements made by the complainant and LW.
Constable Joya gave evidence that on the day before the hearing, a document stating that the plaintiff’s mother had not been in Australia was brought to his attention as were receipts of a purchase that the plaintiff had made and CCTV footage of him at a café allegedly in the Northern Beaches area. Constable Joya said that he spoke to the complainant the day before the hearing, who told him that VC was not going to come to the court as she was a child and she was not going to put VC through that. He explained to the complainant the significance of VC being there, but she still declined. Neither the complainant nor VC came to court on the day of the hearing.
In re-examination, a document regarding the plaintiff’s mother not being in Australia (Ex 6), receipts from a café (Ex 7), a document from Westpac Banking Corporation (Ex 8), and text messages from the plaintiff to a person called “Stephanie” (Ex 9), were admitted as being documents shown to Constable Joya on the day before the charge was listed for hearing.
Constable Anderson in her statement recounted that she and Constable Townsend spoke to the plaintiff at his residence at Belrose on 16 September 2024 and placed him under arrest. The police officers escorted the plaintiff to his vehicle where “he got some paperwork out which he stated would show he was in the Northern Beaches rather than at the Waverly [sic] netball courts … [Constable Anderson] viewed the paperwork and determined that with the timings, it did not put the [plaintiff] in the Northern Beaches at the time of the offence”.
Exhibit 6 was a document entitled “Movements Details”, which appears to show that the plaintiff’s mother departed Australia on 12 February 2016 and her “Lawful Status” was “Offshore - Departure”.
Exhibit 7 are photographs of credit card receipts for purchases at a Narrabeen café on 14 September 2024. Exhibit 8 is a letter from Westpac to the plaintiff confirming that a transaction at a café in Narrabeen was presented to the plaintiff’s credit card “at 14:10 AEST on 14 September 2024”. The text messages in Ex 9 included pictures of the lunch and Narrabeen Lake.
In oral submissions the plaintiff’s solicitor, Mr Chan, informed the Magistrate that he relied on ss 214(1)(a), (c) and (d) of the CPA. Mr Chan referred to the failure by police to make any investigations about the plaintiff’s mother or LW both of whom were direct witnesses. He pointed out that the police could have obtained the plaintiff’s mother’s immigration records which would have shown that she was not in the country. Whilst Constable Joya indicated he had spoken to the complainant about the plaintiff’s mother, he stated nothing came from it including no record of her name or date of birth.
Mr Chan further submitted that police failed to obtain details of or speak to LW or the occupants of the house where the plaintiff was residing on bail. A further submission was made of the failure by police to investigate the CCTV footage which police viewed but did not obtain.
In relation to s 214(1)(d) of the CPA, Mr Chan referred to representations being submitted to police on 4 February 2025, but the decision was made to withdraw only on the morning of the hearing. Mr Chan pointed out that on 10 February 2025, the day before the hearing at 4:41pm, it was confirmed that the hearing was still proceeding. Mr Chan said that this was a secondary issue and limited to exceptional circumstances. Mr Chan submitted that the charges were laid on the same day being 16 September 2024 and no further investigation was carried out. What was relied on were the statements of the complainant and VC. He submitted that “… nothing exculpatory canvassed or investigated, even though the evidence today is that there were those options and there was no reason proffered - and the officer agreed that there was no reason proffered as to why that was not done”: Tcpt, 21 March 2025, p 31(42-46).
The police prosecutor submitted that in relation to s 214(1)(a) of the CPA, Constable Joya had reviewed the CCTV footage which did not identify anything and he did not retain it. He submitted that conduct did not represent an unreasonable or improper investigation and neither did the failure to obtain the statements from the plaintiff’s mother and LW. He further argued that the police did not need to identify every potential line of inquiry and that the plaintiff had not raised any matter which would satisfy s 214(1)(d) of the CPA to make out exceptional circumstances. The police prosecutor submitted that the plaintiff was given the opportunity by police to respond to his whereabouts on the date of the incident by Constable Anderson who examined the material he provided and could not reconcile it with the information they had obtained. The police prosecutor contended there was a proper investigation; the plaintiff was given the opportunity to provide exculpatory material but he did not do that until 4 February 2025. That material only came to Constable Joya’s attention on the day before the hearing.
The police prosecutor submitted that it would be relevant to his Honour’s consideration of whether it was just and reasonable in the circumstances to make a costs order that the plaintiff had to come to the Court regardless on 11 February 2025 for “a different [ADVO] charge” that was still awaiting hearing.
“… Mr Chan submits that the CCTV was not properly investigated. It should have been downloaded and/or served. [Constable Joya] gave evidence that he actually viewed - accessed and viewed the CCTV, made inquiries with Waverley Council. There are a number of cameras that are in the photographs before me. I can indicate that cameras on the top of the nets are all at the top of the area - the top netball courts, which I must say, they are some significant distance from the bottom netball courts, maybe 80 metres or more, and they are not visible from the bottom netball courts. It is a long way. You have got to go up the stairs which, as I said, is probably 50, 60 - 50 metres, past the toilet block and then on the other side of the toilet block are those netball courts. So, there is significant distances. An entirely different location, really, up there. The toilet block, as I said, is also up in that upper area. Those cameras would not have had any relevance. The camera at the bottom of the stairs, which is pictured, in these photos, next to a rubbish bin and some cars being parked, I am aware of that part which is not far, probably 20 metres, from the lower netball court surface, and near the footpath that is in the photo. And then the last photo shows the actual lower netball courts that - up at Birrell Street. And then there is a camera near the cricket nets, which is also the lower netball courts. On the lower netball courts there are multiple courts. The Birrell Street ones are the furthest away from the toilet block - sorry, the ones closer to Birrell Street is further away from the toilet block.
[Constable Joya] actually did make efforts to view the CCTV footage. He formed a view that there was no relevant material. He said it was Saturday morning and there were a lot of people there.
Given that he formed the view that there was nothing there that assisted the prosecution case, or informed the prosecution case, in my view that is not a particularly improper or unreasonable position to take once he had viewed that footage. It may be that some people might say that all that footage should have been downloaded and served, but in cases where often there are large amounts of footage of no relevance, I can understand why police do not routinely serve footage where they form the view it is not relevant.
I do not think there was anything unreasonable or improper about the constable’s investigation of the CCTV material.”
“The next point raised by Mr Chan is failure to take a statement from [LW]. Now, it is obviously preferable and ideal that under the Apostolides principles that all relevant witnesses are identified and called by a prosecutor, and, indeed, an investigator, as an extension of that principle, should be trying to obtain statements from all witnesses, but I think the general practice in the Local Court with matters involving child witnesses and matters of this nature is that it would be extremely rare, if not almost never occurring, that a child witness of that age would be interviewed. Obviously, if the matter was extremely serious, a child witness might well be interviewed, but the general approach of police seems to be to not interview those witnesses. [A]nd then wear what really would be a direction that may flow from that, which might prejudice the prosecution, that they have not presented that witness, and that certainly cannot rebound on the accused.
However, in my view, the decision made by the prosecutor not to interview a child - a person he believed to be of that age is not improper and not unreasonable.”
“In terms of the details of the [plaintiff’s mother], that is probably the matter which I think is probably the strongest submission of Mr Chan compared to the other matters. Clearly [the plaintiff’s mother] was going to be presented by the defence at trial, or at hearing, as a defence witness, an interpreter was ordered. In an ideal world, perhaps, the police officer should have tried to get those details. It seems as though he did not turn his mind to it. It is always a difficult case for a defence lawyer, when they have a defence witness who is a person that can assist the so-called defence case or that can undermine the prosecution case. It is obviously normally appropriate for that witness to be called by the prosecutor. It would have been open to defence to take a statement from that witness and provide it to police if they wanted, and asked for the prosecutor to call that witness, and that would have been the proper course, for the prosecutor to call that witness.
Even a close relative, being the actual mother of [the plaintiff], cannot be prejudged to be in any particular camp, as in the Kneebone principles, and the Apostolides principles. It is not clear from the immigration records exactly the movement of that witness. It seems as though she was last in Australia, perhaps, in 2016, which is some eight years before the incident. It is not clear what the relationship was in terms of how well the child knew that witness in terms of her capacity to identify her. It may well be that the prosecution case would have ultimately had to rely on a submission to the tribunal of fact that the child may have been mistaken about identifying the [plaintiff’s] mother … [a]nd there may well have been submissions as to why that identification may have - or recognition may have been mistaken. There may well have been a very different relationship or ability to recognise that person as opposed to her own father. And it may well have been a case that could have been conducted on that basis, that, well, she could obviously recognise [the plaintiff] from 5 metres, but for various reasons she may have been mistaken about the [plaintiff’s mother], maybe she had not seen her for years, who knows? The evidence would have fallen in particular ways on that.”
“… it is quite common in all matters in the Local Court for police to fail to take statements from what seem to be relevant witnesses, and even eyewitnesses. I think it would happen in a high proportion of matters that we see at hearing, and ordinarily the failure to do that rebounds on the prosecution in that they - as I say, they then have to wear the relevant direction that relates to the prosecution failure to call a witness, being a Mahmood direction. I do not think in every case that police fail to take a statement from a relevant witness it necessarily amounts to unreasonable or improper conduct as in the meaning of s 214 [of the CPA].” (emphasis added)
“The fourth complaint is the failure to investigate the so-called alibi evidence. [The plaintiff] did, in the body-worn video, mention something about being - not being at the relevant location. He then exercised his right to silence as he is allowed to.
Alibi-type material was presented to the prosecution, it seems, in the days before the hearing. In fact, a day before the hearing the officer-in-charge obtained that material, which included things like café receipts at Narrabeen around the relevant time, that is 2.30 in the afternoon on the relevant day, Narrabeen being probably an hour’s drive from Waverley netball courts. There are also some photographs and text messages between somebody and someone called “Stephanie” which I can assume is [the plaintiff], photographs that appear to show the Narrabeen Lake area and sitting down for a coffee-type meal at 2.30 in the afternoon on that day. Prima facie, that evidence would seem to suggest he was in Narrabeen when taken together, and I am told there was also some CCTV footage.
None of that material was in the knowledge of the investigator until, really, the day before the hearing when the charge was withdrawn, which I think is probably a realistic and appropriate course to take. I mean, if the matter had run to hearing, I think it would have been very different, but I think once that material was presented, it was assessed - in combination with the fact that it seems as though - and I can only assume one of the relevant factors in why the charge was withdrawn, was that the child witness [VC] didn’t - or [the complainant] decided not to bring [VC] to Court, and there is nothing anybody can do about that, a mother has a right to say she does not want her 10-year-old child to come to Court to be a witness in a criminal proceeding and be cross-examined. I think that is a practical way of looking at it, that [the complainant] was entitled to take that view and, obviously, the failure of [VC] to come would have been essentially fatal to the prospects of success of the prosecution case.”
“I must say it is a case where clearly the police investigation was in many respects appropriate. The failure to try and chase up the details of the [plaintiff’s] mother, I think, was a significant gap in the investigation. I do not think there was any real failure to investigate any alibi. I note the authority [of HO v R [2023] NSWCCA 245] that was handed up by [the defendant’s legal representative]. Whilst it does not relate to costs per se, it does address the concept of a fair trial, and that is a slightly different test to what I am looking at, but it does refer to the idea of at what point police have to investigate alibis.
I mean, the other, I guess, distinction between this case and the facts in many other costs matters, is that the charge was withdrawn almost as soon as possible upon receipt of a significant body of evidence that related to the, I guess, alibi situation and the fact that the [plaintiff’s mother] was not around, and the fact that the [plaintiff’s mother] was not in the country shows that there was some unreliability as to the observations of the child, at least in respect of the [plaintiff’s mother]. The extent that that would have affected the reliability of the identification of the accused is something that could really only have been determined by evidence during the hearing.
As I said, there would be a plausible prosecution available on the basis that the child may have been mistaken about one person, but not the other, if there was some reason for that, some explicable reason.
The other observation I make is the observation made by [the complainant], because she purported to identify the [plaintiff], was at a very long distance, being the top of the stairwell, it seems, being high above and probably more than 50 metres away in circumstances where she had already been, I guess, pre-empted to make that identification because of what her child told her, and also the fact that the [plaintiff] was at that point walking away from her, being away from [the complainant]. It may well have made her identification somewhat unreliable, but all those matters would be a matter for the tribunal of fact to determine after giving itself appropriate warnings.”
“When viewing the overall investigation, and I did have the opportunity to observe the body-worn video, and hear lengthy evidence from the officer-in-charge, whilst it is certainly not an example of the most comprehensive investigation, particularly in terms of not seeking the details of the [plaintiff’s mother], I am not of the view that the [plaintiff] has established on balance of probabilities that the investigation was conducted in an unreasonable or improper manner.
In terms of the other subsections that are relied upon, I am not satisfied that the proceedings were initiated without reasonable cause or in bad faith or conducted in an improper manner and I am not satisfied that other exceptional circumstances relate to the conduct of the proceedings such that it is just and reasonable to award professional costs … and, therefore, the application is dismissed.” (capitalisation removed)
The plaintiff’s submissions under Ground 1 proceeded principally on the basis that the Magistrate having taken into account a number of irrelevant considerations fell into jurisdictional error. As to the CCTV footage, the plaintiff submitted that his Honour erred in the passage of his judgment quoted at [29] above. The plaintiff contended in respect of the non-disclosure of the CCTV footage, Constable Joya failed to include in his witness statement that he had in fact attended Waverley netball courts but failed to obtain that footage. He did not include any suggestion that the CCTV footage he had viewed was potentially exculpatory in his witness statement. The plaintiff argued that the volume of potentially exculpatory material was not a relevant consideration under s 214(1) of the CPA.
The plaintiff submitted that the duty of disclosure imposed on the prosecution required a “broad view of relevance and of what are the issues in the case” citing R v Reardon (No 2) (2004) 60 NSWLR 454; [2004] NSWCCA 197 at [58] (Hodgson JA) (“Reardon”) and Bradley v Senior Constable Chilby [2020] NSWSC 145; (2020) 281 A Crim R 336 at [46]-[49] (Adamson J). The plaintiff contended that it was not for the defendant to simply form a view that the CCTV footage did not inform the prosecution case. Accordingly, the Magistrate’s view of the “relevance” of the CCTV footage and his Honour’s apparent acceptance of the defendant’s assertion that the material was “not relevant” was wrong. The plaintiff further argued that the defendant’s duty of disclosure extended to putting the defence on a line of inquiry based on the material that had been disclosed which included exculpatory material.
The plaintiff was critical of the Magistrate’s characterisation of the charge as not being “extremely serious” in the passage quoted at [30] above. The plaintiff contended that the seriousness of the charge did not dilute, nor did it enlarge the prosecution’s duty of disclosure in relation to obtaining a statement from LW. The plaintiff submitted that LW’s age was an irrelevant consideration and the Magistrate’s approach to LW’s evidence was erroneous. The plaintiff argued that the correct question to be asked by his Honour was not whether interviewing and calling LW would have made a difference to the way the trial would run, but rather whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner.
As to the plaintiff’s mother, the plaintiff submitted that the Magistrate’s approach by asking how the trial would have been conducted was erroneous. On the question of costs, the correct approach was to focus on whether the investigation prior to the trial ought to have been conducted in a reasonable and proper manner citing De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] (Davies J) (“De Varda”).
As to the alibi evidence, the plaintiff was critical of the Magistrate’s finding in the passage quoted at [33] above that the alibi material was not available to the defendant until the day before the hearing. The plaintiff argued that his Honour impermissibly focused on the timing rather than on the capacity of the defendant obtaining that evidence well before the charge was heard in court. The plaintiff submitted that the duty of disclosure was an ongoing duty and did not fall away when the brief of evidence was served. This was so when the defendant knew that the plaintiff proffered an alibi to Constable Anderson.
In terms of Ground 2, the plaintiff contended that the Magistrate misapprehended the law regarding a prosecutor’s duty to disclose any exculpatory matters to an accused in an adversarial criminal hearing which resulted in his Honour making erroneous comments (suggestive of that misapprehension) throughout the course of his ex tempore judgment.
The defendant submitted that jurisdictional error is established where the Magistrate misapprehended the limits on his jurisdiction to award costs under ss 214(1)(a)-(d) of the CPA citing O*’Brien v Hutchinson [2012] NSWSC 429 at [7] (Beech-Jones J) (“O’*Brien”). The defendant submitted that this must involve identification of a misapprehension by the Magistrate, and not mere disagreement with his Honour’s conclusions.
The defendant contended that none of the “matters” particularised under Ground 1 by the plaintiff are considerations that the Magistrate was, as a matter of statutory construction prohibited from taking into account.
As to the complaint about the Magistrate’s finding that Constable Joya’s investigation of the CCTV footage was not unreasonable or improper, the defendant argued that the plaintiff’s submissions did not address any prohibited consideration. The defendant asserted the plaintiff’s arguments did not reveal any consideration that as a matter of law the Magistrate was prohibited from taking into account, let alone that it led his Honour to misapprehend the nature of his powers.
As to the complaint concerning the Magistrate’s finding that he was not satisfied the investigation was improper or unreasonable because of Constable Joya’s failure to take a statement from LW, the defendant argued that his Honour’s observation as to the general approach of police in Local Court matters of this nature not to interview child witnesses, was part of his normative assessment and not any error of law, let alone a misapprehension of jurisdiction.
As to the complaint that the Magistrate took into account irrelevant considerations when observing that it was quite common in Local Court matters for the prosecutor to “fail to take statements from what seem to be relevant witnesses”, the defendant argued that it was part of the Magistrate’s normative assessment. The defendant submitted that his Honour’s observations as to common prosecutorial practice in the Local Court could not be a prohibited consideration that gave rise to jurisdictional error. Furthermore, his Honour’s observations relating to the plaintiff’s alibi type material did not involve jurisdictional error. The police officer’s subjective awareness of matters was, as the plaintiff contended, a permissible consideration in determining whether the police investigation was objectively reasonable.
The defendant further submitted there was no duty on a prosecutor to investigate an accused person’s case on his behalf citing H**O v R [2023] NSWCCA 245 at [88] (Wilson J) and at the time at which the material supporting the plaintiff’s alibi was drawn to the attention of the police prosecutor was submitted to be plainly relevant to the Magistrate’s normative assessment of the adequacy of the investigation. The defendant argued that a prosecutor’s ongoing duty of disclosure was of no relevance.
In oral submissions, on the failure of Constable Joya to take a statement from the plaintiff’s mother, Mr Bhasin contended that (Tcpt, 3 December 2025, p 22(12-16)):
“… a magistrate is entitled to, in making that normative assessment, draw upon their experience of dealing with matters before the Court and say what is a normal ‘investigation’? That must inform a normative assessment of what is reasonable or proper.”
Mr Bhasin submitted that in respect of the failure to take a statement from LW and the plaintiff’s mother, “the practise before the Local Court by police is a factor that a magistrate is entitled to have regard to in dealing with the very broad question of whether an investigation was unreasonable or improper”: Tcpt, 3 December 2025, p 23(25-28).
As to Ground 2, the defendant submitted that this ground fails to identify any principle of law that the Magistrate misapprehended amounting to jurisdictional error. The defendant argued that Ground 2 and the plaintiff’s submissions elide a prosecutor’s duty to disclose material in their possession with an asserted obligation “to investigate (or to investigate properly)”.
Before venturing further, it is convenient to refer to the relevant principles to be applied where there is a complaint of jurisdictional error.
“… if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist …”
“… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”
“… as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’ (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples:
(a) the absence of a jurisdictional fact;
(b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and
(c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.” (footnotes omitted, emphasis in original)
“The circumstances in which an inferior court may fall into jurisdictional error are not closed. In Craig, the Court gave examples of the circumstances in which an inferior court will fall into jurisdictional error, including, as is presently relevant, ‘if it misconstrues [the statute conferring its jurisdiction] … and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case’, or ‘if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’, or if it ‘disregards … some matter in circumstances where the statute … conferring its jurisdiction requires that that particular matter be taken into account … as a pre-condition of the existence of any authority to make an order’.” (footnotes omitted)
“… misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.”
Whilst the categories of jurisdictional error are not closed, it is a well-established category of jurisdictional error where a decision-maker takes into account an irrelevant consideration in the sense described by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40; [1986] HCA 40. As Basten JA (with whom Beazley P agreed) explained in Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9] “a matter traditionally described as an ‘irrelevant consideration’ is one which is prohibited … having regard to the subject matter, scope and purpose of the power being exercised”.
It is accepted by the plaintiff that for the errors asserted in the Magistrate’s decision to be jurisdictional, those errors must be material to his Honour’s decision: LPDT at [7]. The plaintiff bears the onus of satisfying this Court on the balance of probabilities that the materiality threshold has been met: LPDT at [13]. On the question of materiality, in LPDT the plurality said at [14]:
“The question in these cases is whether the decision that was in fact made could, not would, ‘realistically’ have been different had there been no error. ‘Realistic’ is used to distinguish the assessment of the possibility of a different outcome from one where the possibility is fanciful or improbable. Though the applicant must satisfy the court that the threshold of materiality is met in order to establish that the error is jurisdictional, meeting that threshold is not demanding or onerous.” (footnotes omitted, emphasis in original)
“[7] The power conferred by s 213(1) of the Criminal Procedure Act cannot be exercised in a case where there is a prosecutor acting in a public capacity unless the Court is ‘satisfied’ of any one or more of s 214(1)(a) to (d). The formation of the opinion in s 214(1) is a ‘limit’ on the function or power conferred by s 213(1) as discussed in the above passage from Craig. It follows that, in a case where a costs order was refused, jurisdictional error will be established if the plaintiff can establish that the Local Court misapprehended the limits placed on it by s 214 (see for example De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [32] to [33], per Davies J). Having stated this, six matters should be kept in mind.
[8] First, the formulation of jurisdictional error that I have extracted from Craig involves establishing that the inferior court ‘misapprehended’ the limits on its power. Just because the matters listed in s 214(1) have a jurisdictional quality does not mean that the role of this Court is to determine whether any of them were met and, if so, conclude that there was jurisdictional error on the part of the Local Court in failing to act. The plaintiff must identify a ‘misapprehension’ by the Local Court as to the limits on its power, not a mere disagreement with the Local Court’s conclusion as to those limits. Unless the intention is clearly expressed, legislation will not be construed so as to make the jurisdiction of a court contingent upon the actual existence of a state of facts as distinct from the court’s opinion or determination that the facts exist (Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369 at 391, per Dixon J]). The deployment by the legislature of the word ‘satisfied’ in s 214(1) puts beyond doubt that there is no such contrary intention.
[9] Second, a number of aspects of s 214(1)(a) to (d) involve the exercise of a normative judgment on the part of the Local Court. For example, the Local Court must make an assessment as to whether something was ‘unreasonable’, ‘improper’ or that there were ‘exceptional circumstances’. In Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 the Full Court of the Federal Court noted that conclusions on matters of ‘opinion or policy or taste’ may be ‘very much a matter of opinion and thus not readily susceptible to review for error of law’ (at 199G). Similarly, conclusions by the Local Court as to whether or not failure to take some particular step in the investigation process was ‘unreasonable’ or not can be very much a matter of opinion. In such a case, the task of demonstrating a misapprehension in the Craig sense is that much more difficult.
[10] Third, an erroneous construction of provisions such as ss 214(1)(a) to (d) will sometimes be apparent on the face of the lower court’s reasons. If so the existence of both an error of law and a jurisdictional error will be established. In some cases a misconstruction may only be apparent from an examination of the structure of the lower court’s reasons. In other cases a party may point to a disparity between the facts as found and the lower court’s conclusion as demonstrative of error. However, it must be remembered that a number of phrases in s 214(1) are not technical legal phrases but words which have a ‘common understanding’. To demonstrate legal error in this latter type of case it would have to be demonstrated that, on the facts as found, no other conclusion was reasonably open other than that the criteria was established (Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 at 7; Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557; Vetter v Lake Macquarie City Council [2001] HCA 12; (2001) 202 CLR 439 at [24] to [28], per Gleeson CJ, Gummow and Callinan JJ).
[11] Fourth, a relevant misapprehension is not demonstrated by pointing to a list of matters the court could have, or even should have, taken into account but did not or by pointing to matters the court did take into account, but should not have. In Craig at 180, the High Court held:
‘... a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.’
[12] It is only if one took the further step of inferring that, because the inferior court took into account some irrelevant matter or failed to take into account some relevant matter, it thereby misconstrued a limit on its power would any contention based on a failure to take into account relevant considerations or taking into account irrelevant considerations suggest the existence of jurisdictional error.
[13] Fifth, the failure to take into account a relevant matter or the taking into account of an irrelevant matter by an inferior court might constitute an error of law on the face of the record even if it does not constitute a jurisdictional error. However, the relevant transgression would have to be apparent on the face of the ‘record’. It could not be demonstrated by pointing to a wider set of materials. Moreover, the relevant ‘matter’ would have to be a factor or consideration that as a ‘matter of law’ the lower court was required to consider, or exclude, as the case maybe. Such matters are ascertained from the legislation governing the case in question (see in the context of an administrative decision: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [73] to [74], per McHugh, Gummow and Hayne JJ). They are not identified by preparing a list of ‘facts’ that it is said should have been considered but were not, or were considered but should not have been.
[14] Sixth, the material placed before me included the transcript of an ex tempore judgment of the second defendant. It is well recognised that, given the prodigious workload carried by the Local Court, the transcript of such reasons are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied (Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479A, per Kirby P).”
At the outset of the hearing, the plaintiff’s counsel, Mr Vuu, submitted that the grounds of review raised in the summons were confined precisely to the assertion of jurisdictional error: Tcpt, 3 December 2025, p 4(1-8); Sleiman v Gadalla Pty Ltd [2021] NSWCA 236 at [19]-[20] (Leeming JA, Gleeson and Payne JJA agreeing); Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [26] (Leeming JA, Basten JA and Simpson AJA agreeing).
A number of the plaintiff’s submissions in Ground 1 and essentially the entire argument in Ground 2 made complaints about the Magistrate misapprehending the law in relation to the prosecution’s “duty of disclosure”: see, R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321 at [17]-[20] (Simpson J, Grove and Shaw JJ agreeing) citing with approval the observations by Hodgson JA in Reardon at [46]-[54]; Marwan v Director of Public Prosecutions (NSW) [2019] NSWCCA 161; (2019) 278 A Crim R 592 at [27]-[30] (Leeming JA, R A Hulme J agreeing). During the hearing, I raised with Mr Vuu that it was apparent from the transcript of the Local Court proceedings that there were no submissions made to the Magistrate on the issue of the prosecution’s duty of disclosure, whether the defendant had complied with any such duty and neither was the existence of that duty put to Constable Joya in cross-examination: Tcpt, 3 December 2025, pp 7(22-31)-8(3-22). Mr Vuu properly conceded that there were no submissions specifically made to the Magistrate in relation to the duty of disclosure but submitted that certain words in particular the words “assisted the prosecution case” or “informed the prosecution case” used by his Honour in the ex tempore judgment (see [29] above) suggested an implicit reference to the duty: Tcpt, 3 December 2025, p 8(29-42).
I am mindful of the approach to be taken with respect to the examination of an ex tempore judgment given by a Magistrate in a busy Local Court: Acuthan v Coates (1986) 6 NSWLR 472 at 478-479 (Kirby P, Glass and Mahoney JJA agreeing); Director of Public Prosecutions v El Mawas (2006) 66 NSWLR 93; [2006] NSWCA 154 at [83] (McColl JA, Spigelman CJ and Handley JA agreeing); O*’*Brien at [14]. Having read the Magistrate’s reasons as a whole, I cannot accept Mr Vuu’s submission that the substance of what was said by his Honour was intended to be a consideration of the duty of disclosure on the defendant. While the Magistrate did refer to the defendant forming the view that the CCTV footage was of no relevance, the substance of his Honour’s reasoning in that regard was directed towards the assessment of whether the plaintiff had satisfied the Court whether there had been an unreasonable or improper investigation conducted by the defendant for the purposes of s 214 of the CPA, rather than any consideration on whether the defendant had breached its duty of disclosure. That is not to say however that if a submission had been made along those lines to the Magistrate that it could not form part of the assessment but it is clear in this case that nothing in his Honour’s reasons turned on the defendant’s duty of disclosure.
In these circumstances, the plaintiff’s grounds of review contending jurisdictional error based on the Magistrate having misapprehended the law on the duty of disclosure is a new point not raised in the court below. Consistent with the limited role of this Court provided under s 69 of the Supreme Court Act, it will be seldom that a party will be allowed to argue that an inferior court committed a jurisdictional error or error of law when that point was not raised before it: Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 at [14] (Basten JA), [100] (Sackville AJA); Communications Electrical Electronic Energy Information Postal Plumbing and Allied Services Union of Australia v Sydney Trains [2025] FCAFC 39; (2025) 338 IR 301 at [38] (Perram, Rangiah and Shariff JJ); see also, Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35; Bird v DP (a pseudonym) [2024] HCA 41; (2024) 98 ALJR 1349 at [39] (Gageler CJ, Gordon, Edelman, Steward and Beech-Jones JJ) and the authorities there cited. In any event, for the reasons that follow it is not necessary to reach a conclusion on this issue.
As the Magistrate acknowledged, the plaintiff’s submission that had the greatest strength was the failure by police to obtain the details of the plaintiff’s mother so that a statement could be obtained from her. The police had been made aware by the complainant and VC that they had seen the plaintiff and his mother at the Waverley netball courts but no attempt was made to contact her or to obtain a statement from her. As his Honour correctly observed (see [31] above), that the plaintiff’s mother could not be “prejudged to be in any particular camp”. However, in considering whether the failure to obtain a statement from her entitled the plaintiff to a costs order, his Honour focused (see [31]-[32] above) on the difficulties that the plaintiff’s mother’s evidence may have caused the prosecution case and the common occurrence in Local Court cases for the prosecution to fail to take statements and to call relevant witnesses which “ordinarily” resulted in a “Mahmood direction”. It appears the Magistrate was referring to the direction arising from the decision in Mahmood v Western Australia (2008) 232 CLR 397; [2008] HCA 1. The Criminal Trial Courts Bench Book issued by the Judicial Commission of New South Wales suggests the following Mahmood direction at [4-375]:
“You have heard that [name of witness] has not been called by the Crown to give evidence. You can take the fact that there was no evidence from that witness into account when you decide whether the Crown has proved the guilt of the accused.
I am not inviting you to guess what [name of witness] would have said if they had been called. You must not do that at all. But in a criminal trial, where the Crown must prove that the accused is guilty beyond reasonable doubt, a jury is entitled to take into account that there was no evidence from a particular person in deciding whether or not there is a reasonable doubt about the accused’s guilt … [refer to the submissions of the defence and Crown on the issue].” (emphasis in original)
In my respectful opinion, the Magistrate’s reasons on the failure to contact or obtain a statement from the plaintiff’s mother suffers from the type of jurisdictional error identified in Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 (“Cliftleigh Haulage”), De Varda and RB, and further, in the sense discussed in Craig and Kirk by taking into account an irrelevant consideration.
In the oft-quoted statement in Cliftleigh Haulage, Hodgson JA (with whom Howie J and I agreed) observed 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.”
In Cliftleigh Haulage, Hodgson JA was referring to ss 70(1)(a) and (c) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), which are in identical terms to ss 214(1)(a) and (c) of the CPA.
In De Varda, police had failed to take a statement from Mr De Varda’s 13 year old son who was a witness to an alleged assault by him on his step-daughter. Mr De Varda’s assault charge was dismissed in the Local Court and the magistrate refused his application for costs. However, Mr De Varda successfully sought judicial review of that decision. In De Varda, by reference to what was said by Hodgson JA in Cliftleigh Haulage at [20]-[21], Davies J observed at [31]-[32]:
“[31] In relation to s 214(1)(a), therefore, that paragraph can be satisfied without proof of what an uncalled witness would have said. It is enough that, if the prosecution interviews and calls fewer than the available eye-witnesses, s 214(1)(a) may apply. A fortiori, if the witness who was not interviewed and called would have thrown a different perspective on the matter, the paragraph may apply.
[32] The question to have asked was not whether interviewing and calling Paris would have made a difference to the way the trial would run, but whether the failure to do so meant that the investigation was conducted in an unreasonable or improper manner. Further, when the statement of Paris provided strong support for what the Plaintiff had said to police at the outset (that the Complainant had deliberately cut herself), His Honour should have considered whether the investigation was unreasonable in terms of para (c). That may have been by asking himself what difference it would have made, not to the way the trial would run, but to whether the Plaintiff might not have been guilty or that the proceedings should not have been brought. Nothing in that approach is inconsistent with what was said in R v Hunt [1999] NSWCCA 375 at [9] about the absence of a requirement in s 41A Justices Act 1902 (relevantly identical to ss 212 and 214 Criminal Procedure Act ) of a connection between the basis on which an order for discharge is made and the facts, matters and circumstances about which the Magistrate must be satisfied before making a costs order.”
“As I have said, no statement was ever taken from the plaintiff’s wife or his son. They were called in the defence case, and it is apparent that their evidence supported the plaintiff’s case, as did that of his daughters. Having observed that their evidence was ‘effectively a reiteration’ of the evidence of the daughters, his Honour found that it did not call for separate investigation. This is to evaluate the investigation with the wisdom of hindsight after the hearing. The fact remains that they were witnesses whom one would have expected the police to interview. If they had been, further material would have emerged capable of suggesting that the plaintiff might not be guilty. This was a deficiency capable of raising an issue under both pars (a) and (c) of the subsection.”
“My reading of [the magistrate’s] reasons as a whole conveys to me that the fairness of the hearing of the case was at the forefront of his reasons in declining to order costs, and that appropriate consideration was not given to the investigation … I am satisfied that his Honour did fall into the error identified in Cliftleigh Haulage and De Varda.”
The plaintiff’s mother was a witness who the police should have attempted to interview. If the police had done so, it is likely the police would have ascertained that she was not in Australia at the time the complainant and VC said they had seen her. This may have led to the police reconsidering the plaintiff’s statement to Constable Anderson that at the time the offence was alleged to have occurred he was in the Northern Beaches rather than at the Waverley netball courts.
These were relevant matters which suggested that the plaintiff may not have been guilty. The Magistrate should have approached this issue by asking the question in the terms of s 214(1)(a) of the CPA as to whether the investigation was conducted in an unreasonable or improper manner or in the terms of s 214(1)(c), whether the prosecutor unreasonably failed to investigate a relevant matter of which he was aware which suggested the plaintiff might not be guilty. However, his Honour’s focus was on the difficulties that the plaintiff’s mother’s evidence may have caused the prosecution’s case and on the common occurrence in the Local Court for the prosecution to fail to take statements and to call relevant witnesses ordinarily resulting in a Mahmood direction. The Magistrate’s incorrect focus on these issues caused his Honour to misapprehend the nature of his power under s 214 of the CPA and accordingly, his Honour fell into jurisdictional error.
Furthermore, the commonality of the prosecution in Local Court cases to fail to take statements and to call relevant witnesses could not possibly be a reason for declining to make a costs order under s 214(1) of the CPA. Poor prosecution practice was an irrelevant consideration which caused his Honour to misapprehend the nature of his power under that section.
I am satisfied that the threshold of materiality has been met. The decision that the Magistrate made could realistically have been different had the errors not been made: LPDT at [14].
Having reached these conclusions, it is unnecessary to consider any further contentions by the parties.
Accordingly, I make the following orders:
Extend the time for the plaintiff to commence these proceedings to 12 July 2025.
Quash the decision of Barlow LCM made on 21 March 2025 dismissing the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW).
Remit the matter to the Chief Magistrate of the Local Court of New South Wales for referral to a differently constituted court to determine the plaintiff’s application for costs under s 214(1) of the Criminal Procedure Act 1986 (NSW) in accordance with law.
The first and second defendants are to pay the plaintiff’s costs.
**********
Typographical amendment at [65].
M
Joya [2025] NSWSC 1569
(1986) 6 NSWLR 472
(2024) 98 ALJR 1349
(2014) 88 NSWLR 381
(2025) 338 IR 301
(1995) 184 CLR 163
(2006) 66 NSWLR 93
(2021) 399 ALR 765
(2010) 239 CLR 531
(2013) 85 NSWLR 86
(2024) 280 CLR 321
(2008) 232 CLR 397
(1986) 162 CLR 24
(2004) 60 NSWLR 454
(2004) 61 NSWLR 369
(2023) 278 CLR 1
(1950) 81 CLR 418
(2007) 71 NSWLR 61
(1938) 59 CLR 369
(1995) 57 FCR 194
(1980) 144 CLR 1
(2001) 202 CLR 439
(2001) 206 CLR 323