NSW Police v Pepper

Local Court of NSW|2016-08-08

Reasons for decision

On 1 June 2016, NSW Police served a Court Attendance Notice (CAN) on the defendant, for the offence of driving under the influence of certain prescription drugs. The incident for which the CAN was issued occurred on 29 November 2015. The CAN was created and filed on 3 June 2016.
It is not in dispute that the prosecution was statute barred due to s 179(1) of the Criminal Procedure Act 1986.
The CAN required the attendance of the defendant at Lismore Court on 11 July 2016, and she sought legal advice from Mr Riley, who appeared at court to represent his client on the set date. The proceedings were adjourned for representations to 25 July 2016. On 22 July 2016, Mr Riley wrote to the police, noting that the CAN was issued out of time and seeking that the proceedings be withdrawn. On 25 July 2016, Mr Riley again appeared for his client, and the matter was adjourned solely on the issue of costs to 8 August 2016.
After hearing submissions I adjourned this matter on the question of costs.
There are three issues to be determined. First, what is the appropriate dispensation of the proceedings? Second, does this court have the power to make an order for costs? Third, if the court does have the power, should an order for costs be made?

Authorities and Legislation

The prosecution submissions

The prosecution submits that the court does not have the power to dismiss the matter on the authority of Cakici. Section 213(3) requires, as a prerequisite to an order for costs, that the proceedings be dismissed. As the court has no power to dismiss, then it has no power to make an order for costs.

The defence submissions

The defence submits that on a correct reading of s 213, if the proceedings are found to be invalid, whatever the correct notation on the court papers, the court has the power to order costs.

Resolution of the Jurisdictional Issue

This is a case requiring application of the rules of statutory interpretation. The prosecution has applied a literal interpretation of the section. They are correct that if such an interpretation is applied, the court cannot make an order for costs because it has no power to dismiss the proceedings.
In my view, the strict application of a literal interpretation of the s 213 is not to be preferred. There are five reasons for this.
First, although there is no secondary source such as the second reading speech, it is the clear intention of parliament that if proceedings are invalid, the court may make an order for costs. The court in Cakici specifically recognised the section as 'overcoming' the rule in Goben.
Second, it would be an absurdity for the prosecutions literal interpretation to stand. If that were the case, then no costs award could ever be made against the prosecution for invalid information because it cannot be 'dismissed'. What work then would s 213(3)(b) have to do? An application of the 'golden rule' approach is permissible to avoid an absurd result: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404.
Third, in my view the word 'dismissed' in s 213 is somewhat elastic. In Goben at [30], [47], [48] and [50] there are examples where the courts have used the words 'dismissed' in the colloquial but not legal sense to denote the dispensation of an invalid information. With reference to those decisions James J found at [50]: It is clear that their Honours were using the word 'dismiss' in the sense of quashing proceedings which were incompetent and were not using the word in the sense of dismissing proceedings pursuant to a statutory power to dismiss proceedings which were competent.
The papers may be correctly marked as 'no jurisdiction', however to all but the lawyers, that is simply a choice of words. The defendant walks out, the specific prosecution is at an end, and the papers are filed, just as if there were an acquittal after a lengthy hearing.
Fourth, there are good public policy reasons for the defence interpretation to be preferred. In costs applications, the court needs to keep in mind that where criminal charge is commenced the full power of the state is brought to bear against an individual. The consequences of not obtaining and paying for legal advice can be significant, including ultimately imprisonment. In the absence of clear, unambiguous legislative intent the court ought to be wary of applying costs limitations in such a manner that provides a bar to recovery of those costs in appropriate cases. This is in accord with NSW Police v JG above.
I am mindful that the hurdle of showing some misfeasance still remains in s 214 of the Criminal Procedure Act, as discussed below. Further, I am mindful that whilst in this case the error was discovered early, in some cases the invalidity is only discovered after a hearing has commenced. The costs in such cases could be significant and crippling.
Accordingly, I will mark the papers 'No Jurisdiction'. In my view, there is a power to make an order for costs under s 213 where the proceedings are invalid.

The s 214 considerations

The defence contends that pursuant to s 214(b) the proceedings were initiated without reasonable cause. A tax invoice was tendered in the sum of $990. No issue was taken with the quantum by the prosecution. Thus, the prosecution made no submissions on the issue of reasonableness. I am satisfied that it is inherently unreasonable to institute proceedings that are out of time and thus cannot succeed. The proceedings should not have been commenced without checking the dates, and it should not have been incumbent on the defendant to incur costs to point that out. The defendant ought to be compensated the rather modest amount sought.

Discretion

The prosecution have not tendered the allegation of fact that gave rise to the charge. In those circumstances, it is not possible to make any assessment of the extent to which Ms Pepper has, by virtue of a police error, got away with a serious or dangerous crime. In the end, costs are discretionary and in an appropriate case, it may be that the court declines to make an order for costs where justice demands. However, given the evidence before the court on this occasion, I am inclined to make an order for costs.

Orders

The papers are marked "No Jurisdiction".
The prosecution is to pay the defendant's costs in the sum of $990 within 14 days. Magistrate D Heilpern 23 August 2016 Lismore Local Court

Endnote

http://criminalcle.net.au/attachments/Costs_Paper_final2.pdf 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: 21 September 2016

At a glance

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Judgment (9 paragraphs)

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Cases Cited (5)