Morgan v Director of Public Prosecutions

Supreme Court of NSW|2020-11-13|Before: Campbell J

Solicitors: McGirr Lawyers (Plaintiff) Office of the Director of Public Prosecutions (First Defendant) Crown Solicitors Office (Second Defendant) File Number(s): 2019/347434

Background

On 21 September 2018, Ms Morgan, a serving police officer, was charged with two offences contrary to s 7(1)(b) Surveillance Devices Act 2007 (NSW) ("SDA") of recording two telephone conversations with her superiors on 15 February 2018 on her iPad. At that time Ms Morgan was a trainee prosecutor in the Police Prosecutions Command working at the Bankstown Prosecutors Office. One of the telephone conversations was with Sergeant Voroshine ("Voroshine") and the other with Sergeant Stevens ("Stevens").
The material before the learned magistrate suggested that at the time of the calls there had been discord between Ms Morgan and Stevens for some time. Their relationship worsened on the evening of 15 February after Ms Morgan had attended a Prosecution Training Session because she was concerned that her "Phase 1 sign off forms" had not been signed. Ms Morgan called Voroshine distressed and expressed that she felt that Stevens wanted to get rid of her from the Bankstown Office and that Stevens had relayed this feeling to the Prosecution Training Unit. After this conversation, Voroshine called Stevens to inform her of the conversation and encouraged Stevens to contact Ms Morgan and resolve their issues. Later that evening Stevens and Ms Morgan had a telephone conversation which appeared to have resolved the issue (see Sergeant Voroshine and Sergeant Stevens Police Statements). These were the calls the subject of the charges.
On 18 February 2018 Ms Morgan raised the issue again with Voroshine, expressing her feeling that Stevens statements to her were not genuine and disclosing that she had recorded both telephone calls with Stevens and Voroshine.
The matter was then the subject of internal police investigation, involving the execution of a search warrant on Ms Morgan's home by three male officers on 24 February 2018. Police seized Ms Morgan's mobile phone and iPad, which contained recordings of the two telephone conversations.
Under s 56 SDA prosecutions for breaches of the Act may not be brought except with the Attorney-General's written consent. By order published in the Government Gazette Number 86 on 31 August 2012 pursuant to Director of Public Prosecutions Act 1986 (NSW), the DPP is authorised to give that consent. On the application of the Officer in Charge ("OIC") of the investigation, the Acting Director of the DPP consented to the institution of proceedings by letter dated 14 September 2018.

Procedural history

Ms Morgan entered a plea of not guilty to the charges at the Downing Centre Local Court on 6 November 2018. On that date the matter was listed for reply on 4 December 2018 when an adjournment to 22 January 2019 was necessary. On that latter date the matter was set down for hearing as a special fixture on 25 and 26 March 2019. Although the plea raised the general issue about Ms Morgan's guilt, in truth there was no issue that she had recorded the conversations, a matter she had admitted at all times. The real issue was whether her actions were justified by s 7(3)(b) SDA.
Ms Morgan's solicitors served a subpoena for production on the Commissioner of Police on 28 February 2019. The NSW Police produced a number of documents to the court in answer to the subpoena, including the diary entries of Ms Voroshine, additional witness statements and email correspondence about Ms Morgan. In the opinion of Ms Morgan's solicitors many of these documents advanced Ms Morgan's case.
On 22 March 2019, three days before the hearing, Ms Goodwin, solicitor, on behalf of the DPP, advised Ms Morgan's solicitor's that the charges were to be withdrawn. On 25 March 2019 the charges were formally withdrawn and the proceedings dismissed by Mijovich LCM. On that occasion, Mr McGirr, solicitor for Ms Morgan, notified the court that an application for professional costs would be made. The matter was listed for hearing on 13 June 2019 before Atkinson LCM. The matter was part heard to 6 August 2019. Her Honour requested further written submissions about which party bore the s 7(3) SDA onus and the applicable standard of proof. The application was further heard on 6 August 2019. At the conclusion of the hearing the learned magistrate delivered ex tempore judgment against the plaintiff refusing the costs application.
Ms Morgan filed her summons for judicial review on 5 November 2019. The matter was listed before me on 2 April 2020, when I made orders for the matter to be determined on the papers and directed the parties to serve any supplementary written submissions on which they intended to rely.
For context, I interpolate that Ms Morgan's argument in relation to ss 213 and 214 CPA was that further investigations could and should have been carried out by the prosecution prior to bringing the charges. Mr McGirr argued that the charges under s 7 SDA could not be substantiated because Ms Morgan fell under each of the relevant exceptions in s 7(3)(b). First, Ms Morgan recorded the conversations because it was reasonably necessary for the protection of her lawful interests pursuant to s 7(3)(b)(i); and secondly, Mr McGirr submitted that s 7(3)(b)(ii) applied because Ms Morgan did not make the recordings for the purpose of communicating or publishing the conversation. Mr McGirr argued that the availability of these exceptions to Ms Morgan was readily apparent from the evidence garnered by the OIC. Had reasonable investigations been undertaken the charges would never have been brought. This evidenced the unsatisfactory nature of the investigations. Mr McGirr further submitted that the execution of the search warrant on Ms Morgan's home displayed impropriety in the manner of the investigations by police.
Although the DPP made submissions as to the nature of the power and on the proper interpretation of s 7 SDA, they made it clear that they neither consented nor objected to the order sought, submitting rather that it was a matter for the court's discretion.

Relevant provisions

Section 213(1) CPA is in the following terms: (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.
The apparent width of the costs discretion conferred by s 213 is restricted or constrained by s 214(1) CPA, which is expressed in the following terms: 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.
Section 7 of the SDA provides: 7 Prohibition on installation, use and maintenance of listening devices (1) A person must not knowingly install, use or cause to be used or maintain a listening device - (a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or (b) to record a private conversation to which the person is a party. Maximum penalty - 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case). … (3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if - (a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or (b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation - (i) is reasonably necessary for the protection of the lawful interests of that principal party, or (ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

The magistrate's decision

I extract the relevant sections of the magistrate's decision below: I have reserved from earlier this morning to go through the material again because it is important that I take into account everything that is before me and I consider it carefully. The Court's power to make costs is given under the Criminal Procedure Act, in particular s 213 provides that professional costs may be awarded to accused persons at the end of summary proceedings if the matter is dismissed or withdrawn. As I indicated the matter was withdrawn and these were summary proceedings. The Criminal Procedure Act however places a check on when the costs orders may be made where the prosecutor's acting in a public capacity and this is set to in s 214 of the Act and it provides that, "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." So what is being sought is that the proceedings were initiated without reasonable cause, and that the prosecutor unreasonably failed to investigate or 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, and finally 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. I note that 213 gives the Court a discretion and 214 provides that the costs cannot be awarded unless the Court is satisfied of the four matters that are set out in the legislation. … Part of what I asked of the parties between the last appearance and today was information about who bore the onus of proving what in relation to these matters and I accept that on the basis of the material before me that the prosecution bears the onus of proving the elements of the offence. The exception set out in subs (3) is a matter that the prosecution does not bear an onus and I understand that has been conceded, but what has been put to me is that that of itself is not a reason to refuse a costs order and I do agree with that submission. What is important when prosecutions are withdrawn is that the Court is not told why a prosecution is withdraw (sic), it is simply withdraw (sic). The evidence has not been tested in a court and unusually in a matter like this I have been provided with a lot of information that the Court would not usually see if a matter is withdrawn. This is a different type of matter and it has been necessary for me to see a lot more of the material than what ordinarily I would see including the facts sheet and aspects of the brief. … In relation to these matters I have gone back as I said and looked at the material again. What is apparent from the statements is that the - and I note that Sergeant Amanasko is the prosecutor in this matter and he was copied into a number of the emails that were sent and received earlier in 2018 and the obvious inference is available that he was aware of the material contained in those emails. Those emails were ones that did put the recipients thereof on notice about Ms Morgan's concerns, the fact the LEC(?) and parliamentary inquiry into bullying and harassment have been briefed in relation to those matters and there was quite a lot of detail about the behaviours she complained about and the bullying she complained about. As I said, the prosecutor in these proceedings was party to those emails. I agree that the material shown in the diaries is a lot more detailed than that contained in the statements of Sergeant Voroshine. I note that Elizabeth Smith did prepare a statement that is put in the format of the standard statements that we see from briefs and that the statement that she had prepared earlier this year on 11 March 2019 is not in that format and it is certainly a lot more detailed than what was in her earlier statement. I am not sure of the circumstances in relation to the preparation of that but as I said it was prepared earlier this year and it is in circumstances where she previously prepared a brief. These proceedings are unusual in that unlike most of the charges that are laid by police, these require the DPP's consent before they can be laid. I do not have a copy of the instructions that were provided to the DPP but I would be surprised if that was produced because arguably that would be the subject of legal professional privilege, but certainly what is clear from the material before me is that the prosecutor in these proceedings was aware of the core allegations that were being made by Ms Morgan and he did put together material to seek the consent of the DPP which was given on 17 September 2018. I accept that the prosecution only has an obligation to prove the elements of the offences but they also would be aware that when they commence proceedings or run proceedings, there is the prospect of s 214 looming if the matters are withdrawn or dismissed and certainly it would be a matter that one would expect a prosecutor to be aware of. In these proceedings, I accept that there is an argument which has not been determined by a court that Ms Morgan felt it was necessary to protect her interests to record the conversation. She was concerned that what might be said, that for example she said to Voroshine that Stevens was not being genuine and that she needed to make the recording to protect her legal rights. What is clear when the brief is considered is that this was information that was available to the prosecutor when he prepared the material to put it to the DPP to get the consent. I do not accept and I am not satisfied that the proceedings were initiated without reasonable cause. Material was put to the DPP. The prosecutor in these proceedings was aware of the more detailed nature of the complaints and he proceeded to obtain the consent to the prosecution. It is important to look at the words of 214 in relation to 214(1)(c), there has to be an unreasonable fail to investigate or investigate properly. Certainly a lot of material was obtained once the matter was subpoenaed and as I said the email chains, the prosecutor I can infer was already aware of those. He was not aware, I would accept, of the diaries and other material that was brought to light in relation to the - pursuant to the subpoena but there are prosecutorial duties that have to be applied by prosecutors and certainly on the material before me there was information that was there within the mind of the prosecutor which established a basis for the laying of the charge. There was the material that was said by Ms Morgan to be reasonably necessary for the protection of her lawful interests and despite this, the decision was made to commence the prosecution. As an aside, I am not, despite what Ms Morgan has said, in my view the inference, whilst it might be argued that the recording was reasonably necessary, the fact she made the recording, my view an inference is available that at some point in time she may need to communicate that to another person. I am not making a finding in that regard, I am making an observation because what the ground in my view would be more applicable would be the 3(b)(i) of s 7 of the Surveillance Devices Act. When I consider the investigation that has occurred, yes I accept that further investigation should have been carried out but given the gist of the material that was before the Court, and I accept that in the mention before the Court there was information that Mr McGirr has referred to that. There was information provided to the Court in relation to the ...[unintelligibly transcribed matter of no consequence edited out] … matters were placed before the Court in the process of case management but taking everything into account, whilst there may well have been matters that could have been further investigated or investigated properly to use the words of the language, I am not satisfied there was an unreasonable action on the part of the prosecutor in relation to these matters. Yes, more information might have been obtained and that has been obtained at this point in time, but I am not satisfied that the ground under 214(1)(c) has been made out. It has also been put that there are exceptional grounds on which 214(1)(d), exceptional circumstances that warrant the making, that would be applicable in this matter. In my view the exceptional and I note what has been put by Mr McGirr in terms of it is a matter of ordinary English, but in my view this is not a matter where there was exceptional conduct, exceptional circumstances relating to the conduct of the proceedings. The matter has run its course, consent was obtained, at some point in time the prosecution decided that it would not proceed with the matter and the charges were withdrawn. I ACCEPT IT WAS LATE BUT IN MY VIEW THE GROUND HAS NOT BEEN MADE OUT AND THEREFORE I AM REFUSING THE COSTS APPLICATION. (Capitalisation in the original transcript.) (My emphasis.) (Transcript 6 August 2019 pp11-15.)

The submissions

Submissions in chief and submissions in reply were apparently prepared by Ms Morgan's solicitor Mr R Candelori. Mr J Ireland QC prepared supplementary submissions. It was submitted that the magistrate failed to consider or apply s 214(1)(a) and (b) CPA at all, and that when considering paragraph (d) failed to consider whether it was "just and reasonable" to make an order for costs. It was argued that this failure deprived Ms Morgan of "a decision according to law" (Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1; De Varda v Constable Stengord [2011] NSWSC 868 at [23]; Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13.
It was further argued that the magistrate's decision was vitiated by jurisdictional error as her Honour misapplied s 214 CPA by stating that all "four matters" in s 214(1)(a)-(d) must be satisfied to justify an order for professional costs. In this respect it was said that the magistrate dealt with the paragraphs of subsection (1) as "cumulative" considerations. Mr Ireland said that the failure to consider the paragraphs of s 214(1) independently and in the alternative demonstrates that the magistrate misconstrued the statute governing the power her Honour was called upon to exercise.
In the alternative, it was argued that there was an error of law on the face of the record as the Magistrate failed to give reasons for rejecting the application of s 214(a) and (b) CPA.
Ms B Baker of counsel for the DPP submitted that in order to obtain prerogative relief the Plaintiff must establish jurisdictional error or error on the face of the record as characterised in Craig v State of South Australia (1995) 184 CLR 163 at 175-176; [1995] HCA 58 ("Craig"). She further submitted, that even if the Plaintiff was entitled to relief on the basis of such an error that the granting of such a relief was discretionary: Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [33]; Cunningham v Local Court of New South Wales [2018] NSWSC 499 at [31]-[32]. However I did not understand her to submit that specific discretionary, as opposed to substantive grounds exist for refusing relief if relevant error is demonstrated.
Ms Baker submitted that the Magistrate's remarks that "the costs cannot be awarded unless the Court is satisfied of the four matters that are set out in the legislation" must be read in context with her Honour's earlier recitation of the statute, which demonstrated an understanding that only one of the subsection's was required to be satisfied. Ms Baker relied on the decision of O'Brien v Hutchinson [2012] NSWSC 429 at [14] submitting that "the transcript of such reasons [of the Local Court] are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied". Ms Baker argued that the substance of the judgment demonstrated that the Magistrate considered and determined each ground separately.
In relation to s 214(1)(a) CPA Ms Baker submitted that Ms Morgan's written submission before the magistrate in relation to this ground were made under a joint heading with s 214(1)(c) with the submissions in respect of both paragraphs focusing on the failure of the police to investigate matters relevant to the statutory exceptions in s 7(3)(b) SDA. Ms Baker submitted that ultimately Ms Morgan's s 214(1)(a) arguments were "subsumed in" her s 214(1)(c) CPA arguments: Affidavit, Ryan James Thomas, 5 February 2020 ("the affidavit"), Annexure "F" (p 82). In this regard, Ms Baker also referred to the Plaintiff's failure to correct the magistrate's characterisation of Ms Morgan's case as a claim concerned with s 214(b), (c) and (d): Transcript, 6 August 2019, the affidavit, p 63.40.
Of the Plaintiff's contentions in respect to s 214(b) Ms Baker said that at the start of the magistrate's decision her Honour set out the relevant subsection and adopted the words of the subsection in giving her reasoning. Ms Baker said that the use of the words of the statute demonstrated that the Magistrate had regard to the statute and the facts and concluded that there was reasonable cause to institute the proceedings. Ms Baker also said that although the Magistrate's reasons may be considered brief they were sufficient to adequately reveal the basis for her Honour's decision (Moloney v Collins [2011] NSWSC 628 at [63]-[65]) and that appropriate allowance should be made for ex tempore judgments (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D) and cost judgments (Gatenby v Senior Constable Ronald Duncombe [2015] NSWSC 551 at [22]).
In relation to s 214(d) Ms Baker submitted that as the Magistrate had concluded that no "exceptional circumstances" arose there was no necessity or even occasion to consider whether it was "just and reasonable to award costs". Consideration
No appeal lies to this by a person who has been acquitted or had proceedings against him or her withdrawn from an order of the Local Court refusing costs in respect of summary criminal proceedings. Therefore Ms Morgan invokes s 69 Supreme Court Act seeking orders in the nature of certiorari and mandamus. An order in the nature of certiorari is only available where there has been "jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record"": Craig at 175-176.
It may be now trite to say, but when approaching an application for judicial review of a decision of the Local Court, it is well to bear in mind the following passage from Craig about the scope of certiorari (p 175): Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record".

Jurisdictional error

In Craig the High Court defined jurisdictional error in the following terms at 177: 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 ... an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. The High Court went on to list specific examples of jurisdictional error; I interpolate that "[t]hey are not to be taken as marking the boundaries of the relevant field" (Kirk v Industrial Court of NSW at [77]) however they are helpful in identifying the present claim advanced by Ms Morgan. Included among them is a category where an inferior court misconstrues the statute conferring the power it is called on to exercise: Craig at 177-178.
Ms Morgan contends that there has been jurisdictional error by way of misconstruction and misapplication of the statutory regime for awarding costs to a defendant in summary criminal proceedings contained in ss 213 and 214 CPA. In Craig (177-178), the High Court emphasised that "an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument 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". The High Court noted that in that "category of case, the line between jurisdictional error and mere error in the exercise of jurisdictional may be particularly difficult to discern": Craig 178.
As I have said, in her written submissions Ms Baker drew my attention to the decisions of Gatenby v Duncombe and O'Brien v Hutchinson. Both of these decisions are concerned with judicial review of Local Court decisions dealing with an award of professional costs in summary criminal proceedings and provide relevant guidance on the subject of finding jurisdictional error, or not. In O'Brien Beech-Jones J considered that "six matters should be kept in mind" in cases concerning jurisdictional error; I have extracted some of these considerations below at [8]: [First] 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. Second, a number of aspects of s 214(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. … 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. … 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. 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 - 479, per Kirby P).
Adams J added to these considerations in Gatenby the following at [22]: Judgments on costs are to some degree sui generis. In Luxmore Pty Ltd v Hydedale Pty Ltd [2008] VSCA 212; 20 VR 481, Maxwell P and Kellam JA observed - [12] In the ordinary case, it is both appropriate and desirable that a costs question be decided at the conclusion of argument. Rarely will it be necessary for a judge to give detailed reasons for decision adverting to every matter debated in argument. This Court will assume, as should the parties, that every matter addressed in argument on costs has been considered. This Court will set its face against any proposition which would require judges disposing of questions of costs to give elaborate reasons. Error on the face of the record
An order in the nature of certiorari and mandamus may be sought where there is an identifiable error of law on the face of the record. However, in considering such an application the Court may only have regard to the record: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [99]. In Kirk v Industrial Court of NSW at [89] the High Court held that the documentation that could be relied upon on the face of the record for the purposes of certiorari included the pleadings, the orders made and "the reasons expressed by the court or tribunal for its ultimate determination": s 69(4) Supreme Court Act 1970 (NSW).

Paragraph 214(1)(a)

Ms Morgan contends that the Magistrate failed to consider and apply s 214(1)(a) CPA. It is submitted that although subsection (a) and (c) were similar, they should have been considered separately and the Magistrate should have provided separate reasons for dismissing the submission with respect to s 214(1)(a) CPA. In this regard I accept Ms Baker's submission that Ms Morgan subsumed her argument in relation to subsection (a) with subsection (c). They were dealt with together in Mr McGirr's written submissions on professional costs, noting that the submission with respect to s 214(1)(a) were made under a joint heading with subsection (c). I have extracted the relevant parts of those submissions below (the affidavit, p82): The investigation into the alleged offence was conducted in an unreasonable or improper manner - s214(1)(a) Unreasonable failure to investigate relevant exculpatory matters - s241(1)(c) 18. The court must take precaution when considering this particular provision: De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868 at [20]-[32]; RB v DPP [2015] NSWSC 248.
Ms Baker also drew attention to Mr McGirr's further written submissions provided to the Magistrate as evidence of the conflation of subsections (a) and (c). I also extract those sections below (the affidavit, Annexure "J", p 259, at [26]): That the NSW Police had ready access to exculpatory evidence and failed to obtain or make further enquiries in relation to it leads powerfully to the conclusion that the investigation was conducted unreasonably or improperly: per section 214(1)(a)" [30]… unreasonably by virtue of an unreasonable failure to investigate exculpatory evidence In those sections of the submissions Mr McGirr, with no disrespect, conflates the language of s 214(1)(a) with the reasonable investigation into relevant exculpatory evidence under s 214(1)(c). Both paragraphs are concerned with the reasonableness (or propriety) of the police investigation. Paragraph (c) focuses upon the reasonableness of that investigation with an emphasis on the discovery of exculpatory matters. Apart from complaints about the propriety of the execution of the search warrant, to which I will return, the whole emphasis of the argument before the learned magistrate was that the investigation was conducted in an unreasonable manner and proceedings were initiated without reasonable cause and the prosecutor unreasonably failed to investigate palpable exculpatory material. That is to say so far as the argument touched upon each of paragraphs (a), (b) and (c) each limb was underpinned by what was said to be material which suggested Ms Morgan was not guilty. And the learned magistrate dealt with this fully in her reasons. It was unnecessary for her to refer expressly to each paragraph. It is clear from the face of her reasons as set out above that she dealt with each argument relating to each paragraph fully, given the desirability of disposing of costs questions, where possible in accordance with the authority I have referred to above.
To my mind it is clear that Mr McGirr did not make any separate written submissions of substance before the magistrate in relation to s 214(1)(a) alone. I also bear in mind that at no time did Mr McGirr raise paragraph 214(1)(a) in the oral hearing before the magistrate. I am prepared to accept that given the overlap between the subject matter of ss 214(1)(a) and 214(1)(c) that Mr McGirr intended to deal with the evidence and argument relating to the two subsections together and that any submission in relation to s 214(1)(a) was subsumed within his submissions relating to s 214(1)(c). The magistrate correctly dealt with the submissions made to her and given the lack of attention drawn to s 214(1)(a) by Mr McGirr I am not persuaded that her Honour was required to deal with s 214(1)(a) independently.
Mr McGirr dealt with the circumstances of the execution of the search warrant at [22] of his first written submissions (the affidavit, p82) and not at all in his supplementary written submissions. He referred to them as "an egregious overreach", which may be taken to be a submission that this aspect of the investigation was conducted in an improper manner within paragraph 214(1)(a). It is true that her Honour did not refer to this in her reasons. However this matter was not mentioned in oral argument on 13 June 2019. The argument that day focussed on the exculpatory matters in s 7(3)(b) SDA. Again, on the further hearing on 6 August 2019 the search warrant was not mentioned, s 7(3)(b) SDA was the focus, so far as the substance of the application was ventilated orally. On the second day the magistrate said (the affidavit, p 63.40) : You've done (b), (c) and (d) in the initial submissions and then it's more focussed in relation to…(c)… Mr McGirr did not remind her Honour about the search warrant matter, but made clear he was "talking about" s 7(3)(b) SDA. The voluminous material attached to his written submissions was concerned with this issue too.
A failure to consider and evaluate an argument seriously advanced on uncontested or incontestable facts may amount to jurisdiction error. Daranicknikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]. However the argument was certainly not in the vanguard of Ms Morgan's attack as I have tried to demonstrate. The facts were not uncontested. As her Honour said in relation to the s 7(3)(b) issue the evidence was untested in court. There was no attempt to prove the facts in relation to the execution of the search warrant. In any event search warrants tend to be executed without notice lest evidence be lost or destroyed. This circumstance may cause distress to the occupier of premises, but of itself it could hardly render the manner of police investigation of a matter unreasonable or improper. If there was error in her Honour failing to mention the search warrant in the context of s 214(1)(a) I would not regard it as material.

Failure to consider and apply s 214(1)(b)

Ms Morgan submits that the magistrate failed to consider and apply s 214(1)(b) Criminal Procedure Act. Ms Baker submits that the Magistrate set out the relevant legislation before analysing the evidence and using the words of the statute to form a conclusion that subsection (b) was not made out.
For convenience I have extracted the provision of the judgment below which Ms Baker says specifically deals with subsection (b): I am not satisfied that the proceedings were initiated without reasonable cause. Material was put to the DPP. The prosecutor in these proceedings was aware of the more detailed nature of the complaints and he proceeded to obtain the consent to the prosecution. It is important to look at the words of 214 … I have also extracted above the relevant provisions of the Magistrate's decision.
I agree with Ms Baker's submission. It is clear from the magistrate's decision that she sets out the relevant legislation to be applied and then deals with the substance of Mr McGirr's arguments in some detail. The magistrate adopted the words of the statute to conclude that subsection (b) had not been satisfied. In this regard, I do not accept the submission that her Honour failed to give reasons for her decision, as I have said she sets out the law before going on to consider the relevant facts and materials and grounding a conclusion that subsection (b) has not been met. Her Honour noted that the material and evidence was put before the DPP for their consent before proceedings were instituted. I infer that on these facts her Honour was persuaded that the steps of reviewing the evidence, seeking and obtaining the consent of the DPP to institute proceedings meant that the prosecutor believed in good faith that a case could reasonably be made out on the evidence available and she was not satisfied the proceedings were initiated without reasonable cause. If there was error here, and I am not so persuaded, it was an error within jurisdiction.

Failure to consider and apply s 214(1)(d)

Ms Morgan submitted that the magistrate failed to consider the statutory test of s 214(1)(d), specifically whether it was "just and reasonable" to award professional costs. Ms Morgan further submitted that the magistrate did not set out s 214(1)(d). Ms Baker submitted that as the magistrate had concluded that no exceptional circumstances arose in Ms Morgan's case there was no reason to consider whether such an order was just and reasonable in the circumstances.
I agree with Ms Baker's submission, in concluding that no exceptional circumstances were present there was no necessity for her Honour to consider whether it was just and reasonable to award professional costs. Moreover, when first setting out Ms Morgan's arguments in respect of s 214(1) the magistrate paraphrased the wording of s 214(1)(d) when she said "So what is being sought is … 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". I regard that statement as effectively setting out the statutory framework of s 214(1)(d) which the magistrate was required to apply. It is unnecessary for a magistrate to refer in terms to the provision provided the reasons demonstrate its substance has been applied. There is no question about that here.
It is clear from the words of the paragraph that the "just and reasonable" limb is not a free-standing test. That standard is to be applied through the lense of a finding of any "exceptional circumstances relating to the conduct of the proceedings [not the investigation] by the prosecutor". If no exceptional circumstances are found, no occasion arises for the application of the standard established by the phrase "just and reasonable".

Erroneous application of s 214(1)

Ms Morgan submits that the magistrate "erroneously applied" s 214 by stating that all four matters referred to in paragraphs (a)-(d) had to be established. I infer from her application for judicial review that Ms Morgan is submitting that the magistrate occasioned jurisdictional error in the Craig sense by misconstruing the statue and so misconceived the nature of the function which her Honour was performing.
In this regard I accept that the magistrate was incorrect in saying that "costs cannot be awarded unless the Court is satisfied of the four matters that are set out in the legislation". However, I am not persuaded that her Honour misconstrued the statute and the nature of the function she was performing. It is clear that before summarising Mr McGirr's arguments with respect to s 214(1) CPA that the Magistrate set out the relevant legislation to which she was to have regard, stating that: Professional costs are not to be awarded in favour of the accused person in summary proceedings unless the court is satisfied as to any one or more of the following". (the affidavit, Annexure"E", p 71.31-46.) The Magistrate then proceeded to deal with the relevant facts and evidence before her and each of subsection (b),(c) and (d) separately. She did not actually spell out the matter "s214(1)(b)" but as I have demonstrated above she clearly had the substance of the provision in mind when rejecting the argument that the proceedings had been initiated without reasonable cause.
Ms Morgan further submitted that the magistrate's conclusion that "the ground has not been made out" demonstrates that her Honour conflated the subsections of s 214(1) into one ground. I am not persuaded by this submission. It is clear that viewed in context the magistrate at that point is addressing s 214(1)(d) only. Contrary to Ms Morgan's submission her Honour analysed and applied each subsection separately. Her Honour did not fall into the cumulative approach error contended for by Ms Morgan.
To approach the matter in this way is to do no more than apply what is sometimes referred to as the beneficial or benign approach to the construction of a decision-maker's reasons for the purposes of judicial review. I have already pointed out that this approach will be generally applied in relation to decisions in the Local Court, having regard to the pressure of work under which magistrates operate. For reasons already rehearsed, it was desirable for her Honour to give an oral or ex tempore judgment on the day. It is clear from the transcript of it that the magistrate did not have the opportunity to revise her reasons before release of the transcript. As I have said, her Honour did say at one point in her reasons that each of paragraphs (a) - (d) had to be satisfied. But as I have tried to demonstrate this must be taken to be a slip of the tongue. For considering her Honour's reasons as a whole and reading them fairly it is clear that she approach each of the paragraphs of s 214(1) CPA as alternatives. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said: … a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. …. The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error. These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. The quotation in the first paragraphs is drawn from Collector of Customs v Pozzolanic (1993) 43 FCR 280; [1993] FCA 456 at 287. In my judgment this principle is equally applicable to the ex tempore reasons supporting decisions of lower Courts.

Error of law?

Moreover, on the grounds advanced by Ms Morgan I see no basis for concluding that the magistrate made an error of law on the face of the record. It is often observed that frequently there will be an overlap between jurisdictional error, on the one hand, and errors of law on the face of the record on the other. The same matter may fall happy into either category. Here where the argument has proceeded by close reference to her Honour's reasons for judgment the errors complained of, had any of them been made good, would have fallen into each category: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

Orders

My orders are: 1. Dismiss the proceedings against the First and Second Defendant; 2. The Plaintiff is to pay the First Defendant's costs in these proceedings.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2020

Surveillance Devices Act 2007(NSW)ss 7(1)(b), 7(3)(b), 56

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