McFadyen v Director of Public Prosecutions

The investigation into the alleged offence was conducted in an unreasonable or improper manner - s 70(1)(a)

1. The Applicant contended that the Officer-in-Charge, Senior Constable, Alexander Lay failed to obtain statements (or to do so promptly) from what were contended were material witnesses, including persons who were present at the scene of the alleged offences involving Mr McFadyen; being a person identified as having a moustache and Mr McFadyen's girlfriend.
2. Senior Constable Lay stated that he does not remember any particular police officer coming to him and telling him that there were other people. [5] He stated that he reviewed the CCTV footage and identified 3 people who were sitting with Mr McFadyen inside the Hungry Jacks restaurant. Senior Constable Lay stated that one of the persons was a co-accused who was charged on the night, the other was a lady who was sitting at the same table as Mr McFadyen. He stated that he could not recall whether he asked any police officers to make inquiries so that they could speak to the lady in question. He conceded that there was no statement from the lady in the Brief of Evidence served in the matter. He further conceded that there was another person shown in the CCTV footage with a moustache. Senior Constable Lay stated that the brief did not contain any information in relation to him. He recalled that he spoke to the person briefly, but that person did not want to assist in any way and Senior Constable Lay did not know who he was. [6] He said he knew the witness had earlier been inside with Mr McFadyen, [7] but did not make a note of the comments anywhere. [8] At that stage, he stated that he was speaking with Mr McFadyen.
3. Next, the Applicant submitted that the ERISP with Mr McFadyen, included a viewing of the CCTV footage, but parts of it showing that the Complainant Ms Lauren Estabillo repeatedly assaulted Mr McFadyen inside the restaurant were not discussed or put to him.
4. The Applicant's final argument under s 70(1)(a) of the 2001 Act was that the statement of facts that was prepared, stated the sequence of events in an adverse way to Mr McFadyen, by suggesting that he had been struck only once before pushing Ms Estabillo to the ground, whereas in reality, there had been numerous assaults. Reference is made to the said statement recording:- [9] "As the Accused left Hungry Jacks, he was approached by the victim, Lauren Estabillo, who was the bride to be. Estabillo is seen to continue having an argument with the Accused whilst outside the Hungry Jacks, on the Wynyard concourse ramp. Estabillo is seen on CCTV footage to punch the Accused McFadyen once in the head. The Accused subsequently pushed Estabillo violently shoving her with his hands."
5. The Respondent stated that another Accused, Mr Mark Shepherd had left the scene by the time the incident involving Mr McFadyen and Ms Estabillo commenced. Further, it was submitted that the two other persons, being the man with the moustache and the lady with him, left Hungry Jacks at 1:03:00. [10] Neither was present when Ms Estabillo began initially pushing the Mr McFadyen inside the restaurant. It was submitted that there was no evidence to suggest that the man with the moustache witnessed any part of the incident that was the subject of the charge. It was further argued that the evidence was that the man had indicated an unwillingness to assist police in anyway.
6. The Respondent conceded that Mr McFadyen's girlfriend was present when the incident commenced outside the Hungry Jacks store, but asserted that the footage shows that she left in a hurry, immediately after Ms Estabillo had hit the ground. The evidence of Senior Constable Lay was that the lady left with the Mr McFadyen's other friend. [11] The Respondent submitted that during the ERISP, Mr McFadyen indicated that the lady was his girlfriend and she did not go back to the Police Station to wait for him, but went home by some unknown means. Further there was no evidence to suggest that she made subsequent efforts to contact police to provide a statement.
7. So far as the police interview is concerned, the Respondent drew attention to the fact that Mr McFadyen was interviewed at the scene following the incident and through the ERISP. Mr McFadyen's version of what happened on the occasion was therefore provided. [12]
8. It is apparent from the ERISP that commencing at Q 77 of the ERISP, that Mr McFadyen was shown part of the footage of the incident inside the Hungry Jacks restaurant. He was questioned in relation to what happened. Commencing at Q 157 of the ERISP, Mr McFadyen was shown what happened outside the restaurant. It was apparent from the questioning that at no stage, up until that point was Mr McFadyen shown the footage of Ms Estabillo assaulting him inside the Hungry Jacks restaurant.
9. The Respondent submitted that whether or not the entirety of the CCTV footage was played to Mr McFadyen during the ERISP did not mean that the investigation was conducted in an unreasonable or improper manner. It was argued that the investigation itself uncovered the various angles of the CCTV footage that were ultimately of assistance to Mr McFadyen at the hearing. To this end it was argued that the officers were not obliged to play the entirety of the CCTV footage to Mr McFadyen. Rather, their obligation was to provide Mr McFadyen the opportunity to offer his version of what occurred, not to refresh his memory by showing him the footage.
10. The Respondent submitted that the way in which the statement of facts was drafted did not assist the Applicant with respect to the award of costs as the CCTV footage obtained as a result of the investigation spoke for itself and whether or not the statement of facts comprehensively summarises the incident was otherwise of no relevance to whether the conduct of the investigation itself was conducted in an unreasonable or improper manner.
11. In JD v DPP & Ors, [13] Hidden J found that the Magistrate fell into error in concluding that for an investigation to be conducted in an unreasonable manner required a finding that it fell "grossly below optimum standards." Hidden J stated:- [31] Obviously, an investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. In this case, his Worship did not have to characterise the undoubted shortcomings of the investigation in that way before determining that, in all the circumstances, its conduct was unreasonable. The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it.
12. In Cliftleigh Haulage Pty Ltd v Byron Shire Council, Hodgson JA stated:- [21] … 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. [14]
13. In considering the question of whether the investigation of the alleged offences was conducted in an unreasonable or improper manner, it is necessary to consider the whole of the circumstances.
14. Senior Constable Ley's evidence was that he instructed police to take statements from witnesses. These came to include witnesses that were not ultimately called, being Jenna Jenkins, Kate Smith and Chrissa Valenton. [15] Despite the fact that there was no notation made of the discussion between Senior Constable Ley and the man with the moustache, there was no evidence or challenge contradicting Senior Constable Lay's account that the man was not willing to assist police. The man who was identified by Mr McFadyen, in his ERISP as Jim McGuiness, [16] and by Mr McFadyen's girlfriend as "Pimpiwan"; was not interviewed at all. [17] I accept that that this witness did have the opportunity to make some observations particularly as to events as they unfolded outside. For the most part, it appears that any observations she would have made were captured on the CCTV footage. There is no evidence of any discussion she participated in during the altercation.
15. At the time of Mr McFadyen's initial arrest following the incident, he informed police that he did not know the person who was involved in the altercation inside the Hungry Jacks restaurant. [18] When Mr McFadyen received a message from that person as he was being arrested at the scene he denied that the message from Mark Shepherd was the person police were interested in; telling police that he had not met the person involved in the assault prior to that day. The message received was to the effect that Mr McFadyen should go home. [19] Mr McFadyen told police that he subsequently deleted the message but acknowledged that he phoned Mr Shepherd on the morning of 12 March 2016 and suggested that he hand himself in. [20] He also conceded that he didn't tell police who Mark Shepherd was at the time of his initial arrest because he "… work[ed] with him…would have been pretty uncomfortable at the time." [21] It appears that at the time of the ERISP, police had not located Mr Shepherd. [22]
16. The statutory requirement to engage s 70(1)(c) is one of unreasonableness or impropriety; not imperfection. As will be later shown there were a number of eye witnesses who were interviewed and those called included independent witnesses who provided differing accounts in addition to the CCTV vision. Some witnesses were not required to give evidence by the Defence in the proceedings. [23]
17. In the circumstances, I am not satisfied that the Applicant has demonstrated that the failure of police to seek a statement from either of the two witnesses referred to resulted in an investigation into the alleged offences being conducted in an unreasonable or improper manner. It is apparent that a large number of statements had been assembled. The person identified as Mr McGuiness declined to assist and Mr McFadyen told police that his girlfriend went home despite his arrest. [24] There is no evidence that she attempted subsequently to make contact. In any event it is not apparent what she could have added to the investigation that would have been of assistance.
18. I do not accept that the failure to show Mr McFadyen the CCTV footage of the altercation inside the restaurant evidenced unreasonableness or impropriety in the investigation. Mr McFadyen was plainly given an opportunity to give his account of what happened. He did so. Further in this instance, whatever criticism is to be made of the summary contained in a statement of facts (which has no evidentiary significance) I do not accept that it evidences the investigation being conducted in an unreasonable or improper manner.
19. It follows that I am not satisfied that the ground under s 70(1)(a) of the 2001 Act has been made out.

Proceedings were initiated without reasonable cause - s 70(1)(b)

1. The Applicant submitted that the proceedings were initiated without reasonable cause and this was not a case where there was another correct verdict available. Specifically, the Applicant contended that the decision on Appeal was an inevitable one provided by the unimpeachable video evidence when properly considered and self-defence properly applied. Counsel for the Applicant submitted that there was no first instance advantage enjoyed by the Magistrate and no discretionary aspects to the determination. Specifically, reliance was placed upon the decision in Dao v R, in particular the comments of Spigelman CJ. [25]
2. To the extent that the erroneous finding of guilt made by the Magistrate would suggest that there was realistic prospect of success, the Applicant drew attention to the failure of the Magistrate to consider the assaults upon the Mr McFadyen inside the Hungry Jacks restaurant which were relevant to the ultimate determination of the self-defence issue. Further, the Applicant submitted to the effect that the Magistrate made an unreasonable finding as to the state of mind of the Applicant when considering self-defence, the fact that he was aware that Ms Estabillo was aggrieved with regard to what had taken place and was attempting to obtain details of Mr McFadyen and wanting him to remain until the Police had been contacted and arrive at the scene.
3. The Respondent submitted that Ms Estabillo was seriously injured. Whether the Mr McFadyen carried out the conduct complained of in self-defence was in these circumstances, a question of fact, [26] which could only properly be determined by the proceedings. Reliance was placed on the decision of Wilcox J in Kanan v Australian Postal and Telecommunications Union, [27] where His Honour stated that it was inappropriate to stigmatise the proceedings "without reasonable cause," where success depends upon the resolution in the Applicant's favour of one or more "arguable points of law." In the present case, the matter depended upon the success of arguable points of fact, specifically being that there was a reasonable possibility that the Applicant believed that his conduct was necessary to defend himself, and there was a reasonable possibility that the Applicant's response was reasonable in the circumstances as he perceived them. These; it was submitted, were factual questions upon which reasonable minds could differ. The Respondent further submitted that the comments of Spigelman CJ in Dao v R [28] were made in the context of a s 5F Appeal and were not comments targeted to questions of fact that must be determined by a jury or a tribunal of fact such as the two limbs of self-defence.
4. The Respondent submitted that the decision on Appeal was not an inevitable one but was a conclusion reached after careful consideration of the evidence a tribunal of fact accepting Mr McFadyen's conduct was a reasonable response in the circumstances as he perceived them to be. It was further to submitted that on the basis of the evidence, it was capable to establish each element of an offence contrary to s 35(2) Crimes Act 1900 and that no application was made to the Magistrate contending that there was no prima facie case.
5. In R v R, [29] Gleeson CJ approved the following statement of principle in Attorney-General's reference (No 1 of 1983):- "The question of whether the Crown has ultimately excluded every reasonable hypothesis consistent with innocence is a question of fact for the jury and therefore, if the Crown has led evidence upon which the Accused could be convicted, a trial judge should not rule that there is no case to answer or direct the jury to acquit simply because he thinks that there could be formulated a reasonable hypothesis consistent with the innocence of the Accused which the Crown has failed to exclude. Similarly a trial judge should not rule that there is no case for the Accused to answer because he has formed the view that, if the decision on the facts were his and not the jury's, he would entertain a reasonable doubt as to the guilt of the Accused. It is always a question for the jury whether a reasonable doubt exists as to the guilt of the Accused and as Menzies J explained in Plomp's Case, in a case based on circumstantial evidence, the necessity to exclude reasonable hypotheses consistent with innocence is no more than an application to that class of case of the requirement that the case be proved beyond reasonable doubt." [30]
6. In Halpin v Department of Gaming and Racing, Hall J applied as the test for proceedings being brought without reasonable cause, being when the proceedings were doomed to failure or had no real prospects of success. [31]
7. In the ERISP with police, Mr McFadyen was asked the following question:- "Q 203 Q: Do you agree that the footage that you have just seen, obviously we've got you in the frame. A: Yea. Yea. Q 203: Mate, bit of an overreaction would you say? A: Yea… just trying to get away, so yea. Totally didn't realise that she was hurt like that."
8. The reasonableness of an act asserted to be in self-defence requires the making of a judgment. There is not always a bright line. In this instance, a disputed issue of fact had to be determined. Ms Estabillo was seriously injured, however I was not satisfied that the Prosecution had discharged the onus of establishing beyond reasonable doubt, that the Mr McFadyen's actions were not reasonable in the circumstances as he perceived them to be. Defence counsel before the Local Court made no submission that there was no prima facie case in relation to the charge under s 35(2) of the 1900 Act.
9. To adopt the Applicant's argument would mean that in each instance where the Prosecution has failed to discharge its onus would entail the proceedings brought without reasonable cause. In the circumstances and bearing in mind Mr McFadyen's response to the Q 203 of the ERISP, it cannot be said that the proceedings were doomed to failure or had no real prospects of success.
10. It follows, I am not satisfied that this ground under s 70(1)(b) of the 2001 Act has been made out.

Proceedings were conducted by the Prosecutor in an improper manner - s 70(1)(b)

1. In a different statutory context Brennan, Deane, Toohey and Gaudron JJ in R v Byrnes and Hopwood, [32] referred to the word "improper" in the following terms:- [24] "Improper" is an indefinite term, not commonly used in the criminal law. Counsel for Hopwood submitted that "improper use" should be understood to mean a deliberate use of position for a proscribed purpose "without giving any consideration at all to the interests of the company". No doubt such a use of position by a director would be improper: it would be an abuse of the power or authority conferred by the position. But, contrary to counsel's submission, that case does not exhaust the categories of impropriety. [25] Impropriety in the context of s.229(4) and its statutory antecedents has not been understood to be limited to conscious impropriety on the part of the offender. Thus in Grove v. Flavel(7), Jacobs J said:"The word 'improper' is not a term of art. It is to be understood in its commercial context to refer to conduct which is inconsistent with the 'proper' discharge of the duties, obligations and responsibilities of the officer concerned."He also said:"It seems to me, therefore, that what is 'improper' for the purposes of s.124(2) cannot be determined by reference to some common, uniform, or inflexible standard which applies equally to every person who is an officer, but rather must be determined by reference to the particular duties and responsibilities of the particular officer whose conduct is impugned."In Chew(8), Dawson J said in reference to "improper use" in s.229(4) that "an objective standard must be applied in determining what amounts to impropriety". His Honour added:"It is clear enough that a director of a company may act improperly with no intention of acting dishonestly or otherwise than in the best interests of the company as a whole."He gave Whitehouse v. Carlton Hotel Pty. Ltd.(9) as an example. Also in Chew, Toohey J said(10):"The expression is, as the appellant accepted, one to be determined objectively; essentially the issue is whether the conduct impugned is inconsistent with the proper discharge of the duties of the office in question. To resolve that issue it will be necessary to look at all relevant circumstances, including, for instance, the extent of a director's awareness of the financial stability of the corporation(11). But that does not mean that the test of 'improper use' is subjective; it simply indicates the range of considerations that may have to be taken into account."It was unnecessary for the other judgments to expound the meaning of "improper use"(12) but that case has rightly been taken to approve an objective test of impropriety(13). Impropriety does not depend on an alleged offender's consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important(14): the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused. But impropriety is not restricted to abuse of power. It may consist in the doing of an act which a director or officer knows or ought to know that he has no authority to do.
2. No submission was advanced by the Applicant that the Prosecutor was involved in conscious impropriety.
3. The Applicant contended that despite relevant matters having been captured by unimpeachable CCTV footage, the Prosecutor called a range of witnesses to give conflicting evidence arising out of a misunderstanding of the extent of what was depicted on the CCTV footage. It is asserted that this included the Prosecutor calling wrong evidence and making no attempt to seek leave pursuant to s 38 of the Evidence Act 1995 (NSW) to put to the witnesses the correct version of events or to show the witnesses the CCTV evidence. In this respect, the Applicant drew attention to evidence the witness, Mackenzie Benato who stated that Mr McFadyen had:- "…grabbed her by the throat and pushed her into the concrete, slammed her head in the concrete." [33] "… he pushed her into the concrete into the floor and followed through so kept contact and her head hit the concrete." [34]
4. Further, the Applicant drew attention to the witness, Serena Prelec, describing what occurred as:- "… at this point they were outside Hungry Jacks, not inside Hungry Jacks, not inside anymore on the walkway bit and he picked her up by her legs and spear tackled her to the ground and she hit her head first. [35]
5. Further, when the witness was asked whether she saw her do anything prior to Mr McFadyen picking her up by the legs, she described:- "… she was just ushering him out of Hungry Jacks, just continually say, "don't come near me, get out."" [36]
6. Further attention was drawn to the evidence of Ms Estabillo who stated that she "might" have gone to push and slap Mr McFadyen, [37] but contact was not made. [38]
7. In my view, there is no substance to the Applicant's argument.
8. The Prosecutor had professional obligations to fulfil. [39] As already noted, Defence counsel before the Local Court indicated at the commencement of the hearing, that the parties had been "able to trim a couple of the witnesses."
9. I do not see any substance in the contention that the Prosecutor should have sought leave pursuant to s 38 Evidence Act 1995. The Applicant did not demonstrate how any such application could have been advanced in circumstances where there was no suggestion that the witnesses were not making genuine efforts to give evidence, making prior inconsistent statements or giving unfavourable evidence.
10. It is true that leave under s 38 can be granted if it is directed to establishing that the probability of the factual state of affairs in relation to the subjects contended for by the party conducting the questioning or the improbability of the witness' evidence on the subjects [40] However In my view, there was no obligation to do so and it may be arguably inconsistent with the Prosecutor's duty in the circumstances.
11. The Prosecutor acknowledged in his submission that 3 witnesses (including Mr Benato and Ms Prelec) gave varying details and asserted that they all saw various things, but what was consistent is that there was a leg sweep and a throwing to the ground. [41]
12. Thereafter however, the Defence counsel in the Local Court submitted without objection the following:- "You actually see the black T-shirt and her doing this inside Hungry Jack's let along outside Hungry Jack's, and what you see moments before that occurring is my client moving sideways with his hands up in a surrender position. In the CCTV footage, a number of parts of it support that that was the attitude that my client was adopting through the early genesis of this incident." [42]
13. Further, I do not accept that the Prosecutor in the closing address led the Local Court into error in characterising Ms Estabillo's actions as involving "trying to stop [Mr McFadyen] from leaving before the police got there." [43] The evidence that grounded that submission emerged from cross-examination of Ms Estabillo by Defence counsel in the Local Court. [44]
14. The Applicant refers to the Prosecutor's references to the evidence of Ms Estabillo and Ms Benato, asserting that the only evidence relating to Mr McFadyen being hit came from them. [45] In fact, a proper reading of its context shows that references were made by the Prosecutor to statements made by Mr McFadyen at the time of being cautioned by police and also to the CCTV evidence. [46] It is correct nonetheless that the Prosecutor had not referred to the earlier CCTV evidence inside the restaurant.
15. The Applicant further submitted that other submissions made by the Prosecutor were "extraordinary" and "extraordinary and wrong." Specific reference was made to the Prosecutor's submission that Mr McFadyen "could have just left. She was pulling him to go away. Instead he chose to assault Ms Estabillo in the manner that he did." [47] Further, referring to the Defence, it was submitted that "[Mr McFadyen] was concerned that he was going to be struck again. There is no evidence to support that."
16. It is important to understand the context in which that submission was made. Defence counsel in the Local Court stated:- [48] "In my client's perception, it is not unreasonable for him to have, at that moment, a concern that he was going to be struck again."
17. That submission was of an inference sought to be drawn based on events which earlier occurred. There was in fact no direct evidence that Mr McFadyen thought that he was going to be struck again and the Defence submission was open to be traversed. In the ERISP interview, Mr McFadyen did not inform police that he had a fear that he was going to be hit, stating that he did not remember what he did to Ms Estabillo and that he was "pretty drunk". [49]
18. I see no basis to suggest that the Prosecutor conducted himself improperly in placing reliance upon the witnesses Ms Benato and Ms Prelec, in the context where he also acknowledged the content of the CCTV evidence. [50]
19. I accept the Respondent's submission that the contention in the Local Court that Mr McFadyen could have left scene was drawing attention what was shown on the CCTV footage. That is that Mr McFadyen was initially being escorted from the venue by his girlfriend before he stopped. Further, the Respondent submitted that the Prosecutor's submission before the Local Court as to there being no evidence to support Mr McFadyen's concern, highlighted that Mr McFadyen himself did not give any evidence to this end and there was no other direct evidence on the matter. In a context where the Defence also had the opportunity to deliver a closing address in response to the Prosecutor's closing address, I do not consider that the Prosecutor's closing submissions were improper.
20. More broadly, I have difficulty with the Applicant's approach which seeks to equate prosecutorial submissions that it disagrees with or categorises as erroneous to the status of "proceedings" conducted by a Prosecutor in an improper manner." I do not accept that this follows. In the context of adversarial proceedings where a Prosecutor was making submissions able to be traversed by Defence counsel , it has not been demonstrated that any of the submissions either individually or collectively resulted in "proceedings" being conducted by the Prosecutor in an improper manner.
21. It follows, I am not satisfied that this ground under s 70(1)(b) of the 2001 Act has been made out.

Prosecutor unreasonably failed to investigate or to investigate "properly" a relevant matter - s 70(1)(c)

1. In Cliftleigh Haulage Pty Ltd v Byron Shire Council, Hodgson JA stated:- [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. ….
2. The Applicant, repeats his submissions in relation to the failure of the Prosecutor to understand or ascertain, that Mr McFadyen had been repeatedly assaulted in the restaurant prior to the events captured on external CCTV and that those events were significant to the question of self-defence.
3. In so far as it asserted that based on the failure to interview and call the witnesses earlier referred to, the Applicant has not demonstrated that that evidence would have suggested that he might not be guilty or that the proceedings should not have been brought.
4. The Applicant's submissions assert that there were matters which should have been carefully considered and put to Mr McFadyen in the ERISP and a determination made as to charging, in light of such.
5. As I have already stated, I do not consider that a Prosecutor would have "unreasonably failed to investigate" or "investigate properly" by failing to put matters to Mr McFadyen in the course of an ERISP interview. In any event, the limited ability of Mr McFadyen to recollect what occurred [51] would not indicate that any responses would have suggested that he might not be guilty or the proceeding should not have been brought.
6. In this instance, the Prosecutor had obtained the relevant CCTV footage. To that extent, I do not consider that there has been a failure to investigate a relevant matter. Section 70(1)(c) speaks to "investigate any relevant matter". It does not speak to correctly ", assessing or discerning" the outcome of the investigation. Furthermore, in RB v DPP (NSW), [52] Hidden J stated in relation to the analogous provision in s 214 (1) of the 1986 Act:- [52] True it is that his Honour referred expressly to pars (a) and (c) of s 214(1), saying that he did not find either of those paragraphs established. However, he gave no reason for that conclusion other than his finding that by the time of the hearing the investigation which had been undertaken was not unreasonable. I accept Mr Bourke's argument that the fact that an investigation was dilatory (including delay in supplying relevant material to the defence) does not necessarily mean that it was unreasonable and that, generally speaking, it is the state of the investigation at the time the matter comes for hearing which is relevant. However, his Honour's reasons do not address aspects of the case which were not investigated at all.
7. It follows, I am not satisfied that the ground under s 70(1)(c) of the 2001 Act has been made out.

That because of other exceptional circumstances relating to the conduct of the proceedings by prosecutor, it is just and reasonable to award costs in favour of the Applicant - s 70(1)(d)

1. In this respect, the Applicant submitted that the case was exceptional because of the CCTV evidence and the failure of the investigative police to properly consider it and the way the matter was conducted by the Prosecutor notwithstanding that.
2. The Respondent submitted that there were no other exceptional circumstances that made it just and fair to award costs in the Applicant's favour and the facts submitted by the Applicant in combination, do not make this an exceptional case. It was submitted that what conduct amounted to self-defence was a question properly left to a tribunal of fact in the criminal proceedings. The Applicant was afforded procedural fairness in not only provided an opportunity to deliver a closing argument but also to respond to the Prosecutor's closing submissions.
3. In Halpin v Department of Gaming and Racing, Hall J at stated in reference to this section:- [53] [65] 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. [66] In Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552; 78 A Crim R 368, the Court of Criminal Appeal determined that the requirement that an order be "just and reasonable" involves both a fair hearing and that the terms of the order finally made are reasonable, per Sully J at 561:- "…the words of the section require that an order for the payment of costs pursuant to s.52 of the [Land and Environment Court Act 1979] must be both just and reasonable. The order must be just in terms of the way in which it has been reached; and it must be reasonable in its actual terms."
4. s 70(1)(d) refers to the conduct of proceedings. As such, questions pertaining to the investigation and the decision to commence proceedings do not come within its terms. [54]
5. Even considering the matters raised by the Applicant as to the manner in which the Prosecutor conducted the proceedings, it would not be just and reasonable to award costs in circumstances where there was adequate opportunity for contrary contentions to be put to the Local Court on behalf of Mr McFadyen. It follows that this section would not be engaged. ORDERS
6. For these reasons, the application for Costs is refused.

Endnotes

1. Hereinafter referred to as "the 1900 Act"
2. Hereinafter referred to as "the 2001 Act"
3. Before the Local Court at T 23.39
4. Section 418 of the 1900 Act
5. T 10.50-11.02
6. T 11.40-.46
7. T 12.01
8. T 12.06
9. Exhibit 1
10. 10 minutes, 30 seconds on the footage tendered on Appeal.
11. T 12.32
12. Local Court Exhibit 2, Q 29, 129
13. [2000] NSWSC 1092
14. [2007] NSWCCA 13 (Howie and Price JJ agreeing). See also De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 (Davies J).
15. Local Court Exhibit 1 at [9]-[11]
16. Local Court Exhibit 2, Q 57-58
17. Local Court Exhibit 2 Q 57-58
18. Local Court Exhibit 2 Q 23-25
19. Local Court Exhibit 2 Q 181, 185
20. Local Court Exhibit 2 Q 197
21. Local Court Exhibit 2 Q 167
22. Local Court Exhibit 2 Q 182
23. T 4.50-5.01
24. Local court Exhibit 2 Q 208-210
25. [2011] NSWCCA 63 at [46]-[49]
26. R v Katarzynski [2002] NSWSC 613 at [22]
27. [1992] FCA 359
28. [2011] NSWCCA 63
29. [1989] 18 NSWLR 74
30. [1983] 2 VR 410, 415-16.
31. [2007]NSWSC 815 at [57]-[61]
32. (1995) 183 CLR 501at 513-5; [1995] HCA 1 (Brennan, Deane, Toohey and Gaudron JJ)
33. T 34.47 (19 October 2016)
34. T 35.40 (19 October 2016)
35. T 33.04 (19 October 2016)
36. T 33.27 (19 October 2016)
37. T 61.04, .13 (19 October 2016)
38. T 61.07, 63.02 (19 October 2016)
39. Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 r 29.7; R v Apostilides [1984] HCA 38; R v Kneebone [1999] NSWCCA 279.
40. R v Lee (2002) 54 NSWLR 474; [2002] NSWCCA 186 at [67] (Heydon JA)
41. T 23.04 (19 December 2016)
42. T 15.28 (19 December 2016)
43. T 22.44 (19 December 2016)
44. T 78.44 (20 October 2016)
45. T 24.05 (19 December 2016)
46. T 23.47 - 24.25 (19 December 2016)
47. T 24.19, 25.17 (19 December 2016)
48. T 16.29 (19 December 2016)
49. ERISP Q 143
50. T 40 (19 December 2016)
51. ERISP Q 82-129
52. [2015] NSWSC 248 at [52]
53. [2007] NSWSC 815 (Hall J)
54. Environmental Protection Agency v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70 at [79]-[81]

Amendments 28 March 2018 - Publication restriction removed. 06 April 2018 - Various typographic amendments - [10], [12], [26], [29], [39], [42], [48], [56], [57], [59]. 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: 06 April 2018