Crimes Act 1900 (NSW), s319
Cases Cited: R v Pavy (1997) 98 A Crim R 396
Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121
Chahal v DPP [2008] NSWCA 152
Cittadini v R [2010] NSWCCA 291.
Category: Costs
Parties: Hassan Hallak (Applicant)
Source
Original judgment source is linked above.
Catchwords
Crimes Act 1900 (NSW), s319
Cases Cited: R v Pavy (1997) 98 A Crim R 396Mordaunt v Director of Public Prosecutions and Anor [2007] NSWCA 121Chahal v DPP [2008] NSWCA 152Cittadini v R [2010] NSWCCA 291.
Category: Costs
Parties: Hassan Hallak (Applicant)
Judgment (6 paragraphs)
[1]
The Application
Presently before the Court is an application by Mr Hassan Hallak (a solicitor of the Supreme Court of NSW) that he be granted a certificate under the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act").
The application is consented to by the Crown.
The Crown's consent is significant but not necessarily determinative of the application, for reasons I shall later explain.
[2]
The Facts
The factual background to the application is not in dispute and may relevantly be summarised as follows.
On 30 November 2019, Mr Shojaei was allegedly robbed by two men at his residential premises in Sydney.
The police subsequently arrested and charged Messrs Rafat and Hamdi Alameddine with that alleged robbery. They were not granted police bail.
On 19 December 2019, Messrs Alameddine appeared in the Local Court at Fairfield for the purposes of a contested release application. Mr Saddik was the solicitor acting for the applicants; and Mr Saddik had briefed Mr Lange of counsel to appear on their behalf on those applications.
On the same date - but before the release applications were heard - two men associated with Messrs Alameddine brought Mr Shojaei to the Fairfield Local Court in order that he could provide a statement to be used in support of the release applications. Mr Lange and Mr Saddik were concerned that neither of them were involved in the taking of Mr Shojaei's statement (for obvious reasons), and Mr Saddik subsequently arranged for an independent solicitor (Mr Hallak) to take that statement.
Mr Hallak conferred with Mr Shojaei in a conference room at the courthouse and a statement (in the form of a file note) was prepared and provided to Mr Saddik. The statement was later tendered by Mr Lange on the release applications. However, the applications (on that occasion) were unsuccessful.
At some later point, Mr Shojaei was interviewed by police. During that interview, "he took issue with a number of issues in the file note prepared by Mr Hallak". As a result, on 5 May 2020, Mr Hallak was arrested and charged with doing an act intending to pervert the course of justice (cf s319 of the Crimes Act 1900 (NSW)).
Mr Hallak was committed for trial in relation to that charge on 22 April 2021.
On 21 May 2021, Mr Hallak's matter was listed for the first time in this Court. It was later listed for the third time on 11 June 2021 when Mr Hallak was (first) arraigned.
Mr Hallak appeared before the Court on 20 August 2021 (the fifth listing in this Court), at which time a trial date (the first trial date) was fixed for 4 October 2022.
Initially, Mr Hallak's matter was to be heard at the same time as similar charges brought against the two men who had conveyed Mr Shojaei to the Fairfield Local Court on 19 December 2019.
On 5 October 2022, applications were made by Mr Hallak to be tried separately from the other two co-accused and for his trial to proceed by way of judge alone trial. The judge who heard that application reserved her decision - and, implicitly at least, vacated the first trial date.
Mr Hallak's matter again came before the Court on 3 March 2023 (the 13th listing in this Court) at which time a further trial date was fixed for 4 September 2023 (the second trial date), notwithstanding the outstanding judgment in relation to the judge alone trial application and the severance application.
I pause to observe that, on 24 March 2023, orders were made severing the trials of Mr Hallak and the other co-accused; and, on 12 May 2023, an order was made that Mr Hallak's matter proceed by way of judge alone trial.
The second trial date (the 17th listing of Mr Hallak's matter in this Court) did not proceed on 4 September 2023. And on 8 September 2023, a further trial date was fixed for 29 July 2024 (the third trial date).
On the third trial date, the judge alone trial was listed and commenced before me. That was the 21st listing of Mr Hallak's matter in this Court.
Again I pause to observe that the Crown prosecutor who appeared on 29 July 2024 was the third Crown prosecutor to appear before the Court in relation to this matter and who, according to counsel for the accused, "only came into it relatively recently".
At the commencement of that trial, the parties asked for the matter to be adjourned to the following day because a No Bill application had been made by Mr Hallak to the Director of Public Prosecutions, which request was granted.
On the morning of 30 July 2024, the Court was informed by the Crown prosecutor that he had received instructions "this morning at 9.03am to proceed with the trial".
Consequently, Mr Hallak was arraigned upon indictment …41.2 which was in the following terms:
"That on 19 December 2019, at Fairfield in the State of New South Wales, [he] prepared a document for court proceedings, with intent thereby to pervert the course of justice".
Upon that arraignment, Mr Hallak pleaded not guilty, after which the Crown prosecutor opened, during the course of which, inter alia, he stated that Mr Hallak was "a person of good character".
The following extracts from the Crown's opening are particularly noted for the purpose of this application:
1. "CROWN PROSECUTOR: The issue with the file note… is whether or not representations made in that file note prepared by Mr Hallak were, in fact, false, because what happens to the file note next… is that it is tendered at the bail application on behalf of the two men seeking bail that afternoon…
HIS HONOUR: Is it the Crown's case that the alleged falsity was conveyed by Mr Shojaei and faithfully recorded by Mr Hallak, or is it the Crown's case that the alleged falsity was, in fact, initiated not by Mr Shojaei, but by Mr Hallak, or is there some other position?
CROWN PROSECUTOR: The position the Crown takes, your Honour, the Crown's case at its highest in this prosecution is that the Crown can't prove, beyond a reasonable doubt, that Mr Shojaei, the complainant, was not the source of the material information contained in the file note" (T3:43-T4:7, 30/07/24);
...
1. "CROWN PROSECUTOR: …The Crown's case will be, in relation to the complainant, Mr Shojaei, in short, that he was doing the best he could. English wasn't his first language at the time. He was an Afghani - still is an Afghani national. Dari was his first language, and this meeting with Mr Hallak was conducted in English.
The Crown can't rule out… there has been some miscommunication between Mr Hallak and Mr Shojaei, in attempt (sic) to explain those areas of dispute, but the Crown can't say… in its case, that those areas I've opened on are what could be described as firstly salient facts in relation to the facts in issue, or indeed important facts, that assist your Honour in relation to whether or not the Crown has discharged its burden" (T7:4-15, 30/07/24);
…
1. "CROWN PROSECUTOR: There is communications… between Mr Hallak and Mr Saddik which were obtained as part of the police investigation and there's text messages in relation to Mr Saddik and Mr Hallak but again they don't really shed any light in relation to a central fact in issue that the Crown must establish and that is firstly, the file note that was obtained and its accepted that it was obtained by Mr Hallak, whether or not it was, in fact, information that he added to it, in a sense of manipulating or doctoring the version that Mr Shojaei had told him, or, in fact, it was Mr Shojaei attempting to do the best he could in relaying in a language that in English, not his first language, events that had occurred, the Crown simply can't say" (T8:1-10, 30/07/2024);
…
1. "CROWN PROSECUTOR: It is also correct… and proper for the Crown to point out that in this role that Mr Hallak found himself in with Mr Shojaei it is correct to say that it wasn't Mr Hallak that tendered that document, the file note, and the Crown can't say that he anticipated it would be tendered… he may have anticipated that that document would be relied upon by Mr Lange who was briefed to appear in the release applications.
But the Crown can't say anything more than that really and it doesn't really again, your Honour, the Crown concede, assists your Honour regarding the Crown being able to, in effect, establish a kink element in relation to Mr Hallak's knowledge" (T8:50-9:12, 30/07/24);
...
1. "CROWN PROSECUTOR: So perhaps 20% of the contents [of the file note] could be classified as false, but again your Honour, as I've read out the facts of dispute earlier, or the areas of dispute in that file note, the Crown don't say that they are important disputes in relation to the Crown's burden in this case. So while the file note may have been false, its accurate and proper to…
HIS HONOUR: False by whom? I'll be interested to read the transcript of this opening when it's produced this afternoon.
CROWN PROSECUTOR: Yes.
HIS HONOUR: Didn't you say that you can't exclude the reasonable possibility that Mr Shojaei provided false information that was faithfully recorded by Mr Hallak?
CROWN PROSECUTOR: I did. I hope I put that firmly, your Honour, because your Honour has just…
HIS HONOUR: Then how do you win? How do you discharge the onus of proof?
CROWN PROSECUTOR: That is the…
HIS HONOUR: But how do you?
CROWN PROSECUTOR: We don't.
HIS HONOUR: Then why are we here?
CROWN PROSECUTOR: That is a very good question your Honour" (T9:35-10:14, 30/07/2024);
…
1. "HIS HONOUR: I'm asking you, as the representative of the Crown in this Court, and as a barrister, if you have got a case that you can't say that you have reasonable prospects of winning because there's a kink in it, why are you as counsel standing on your feet with your duties to the Court? I know that this is a particularly difficult problem for Crown prosecutors, but this is one case where it comes into sharp relief, where the duties of counsel to the Court potentially come into conflict with instructions from a relevant statutory officer.
CROWN PROSECUTOR: Correct." (T11:1-10, 30/7/2024).
...
1. "HIS HONOUR: But you are standing there telling me that there is a fundamental aspect of the Crown case which needs to be proved beyond reasonable doubt and which the Crown cannot.
CROWN PROSECUTOR: Yes.
HIS HONOUR: The whole prosecution, as I see it at the moment, will fail at that point.
CROWN PROSECUTOR: Yes.
HIS HONOUR: So you agree with that, that if you can't exclude the reasonable possibility that Mr Shojaei deliberately provided false information or that he was erroneous in the information which he provided, which Mr Hallak faithfully recorded, either or, the Crown case fails.
CROWN PROSECUTOR: Yes. I agree with that". (T11: 41-50 -T12:1-6, 30/7/2024).
Following this exchange, the Crown Prosecutor was offered the opportunity of immediately seeking the guidance of a senior member of the Inner Bar on the Bar Council. The Crown Prosecutor indicated that he would take such an opportunity. Shortly thereafter, the trial was adjourned to 10am the following morning.
On 31 July 2024, the part heard trial was called on. The Crown Prosecutor who had appeared the previous day did not then appear. Rather, the Acting Senior Crown Prosecutor appeared for the Crown and informed the Court that:
1. the previous Crown Prosecutor's instructions had been withdrawn; and
2. the Director of Public Prosecutions had directed no further proceedings in this matter.
Immediately following that information being supplied to the Court, Counsel for Mr Hallak foreshadowed this current application - and a timetable was fixed for a hearing on 11 October 2024.
On 2 August 2024, the Acting Senior Crown Prosecutor wrote to my Associate (MFI 3) enclosing proposed agreed Short Minutes of Order which included the following notations:
"The Court notes that:
A. In the circumstances noted below, the applicant and the Director of Public Prosecutions have agreed that the Court's power to grant a certificate to the applicant under the Act is enlivened.
B. On 31 July 2024, the Court was informed of a direction given by a delegate of the Director of Public Prosecutions on evidentiary and discretionary grounds that there be no further proceedings in the proceedings ('the direction').
C. At the time the Court was informed of the direction, no evidence had been tendered or led in the proceedings, and there had been no hearing on the merits, but the applicant's trial had commenced.
D. The Court has reached the requisite opinion, for the purpose of s 3(1) of the Act."
On 5 August 2024, I made the following Chambers Orders:
[3]
"1. Note: Email from Mr Hatfield SC dated 2 August 2024 and attached draft ("consent") Short Minutes of Order (marked for identification 3 in Chambers - attached).
2. Note: The Court is of the preliminary opinion (but subject to any submissions from the parties) that:
1. the jurisdiction conferred by s.2 [of the Costs Act] is not a consent jurisdiction
2. the recitals in Notations A to C of the draft Short Minutes of Order in [1] do not, on their own, support Notation D
3. if the opening by the Crown Prosecutor on 30 July 2024 is taken into account (which the Court is minded to do) as well as Notations A to C then the Court would be able to reach "the requisite opinion for the purpose of s.3(1) of [the Costs Act]"
3. Note: The Court requires, at least, a Notice of Motion to be filed before any certificate is granted.
4. Order: Liberty to the parties to apply on a date mutually agreeable to them in relation to any such Notice of Motion on 1 day's notice."
On 9 August 2024 the solicitor for Mr Hallak filed a Notice of Motion seeking the grant of a certificate pursuant to s.2(1) of the Costs Act.
Ultimately, the hearing of Mr Hallak's application for costs was finally listed before me on 11 October 2024. On that date the parties asked me (by consent) to make orders in accordance with draft Draft Short Minutes of Orders (MFI-5) which were in the following terms:
"A. In the circumstances noted below, the applicant and the Director of Public Prosecutions have agreed that the Court's power to grant a certificate to the application under the Act is enlivened.
B. On 31 July 2024, the Court was informed of a direction given by a delegate of the Director of Public Prosecutions on evidentiary and discretionary grounds that there be no further proceedings in the proceedings ('the direction')
C. At the time the Court was informed of the direction, no evidence had been tendered or led in the proceedings, and there had been no hearing on the merits, but the applicant's trial had commenced.
D. The Court has reached the requisite opinion, for the purpose of s 3(1) of the Act, on the basis of the Crown Prosecutor's opening on 30 July 2024.
E. The Court has reached the requisite opinion, for the purpose of s 3(1) of the Act."
I did not immediately make the orders in MFI-5 because there are conflicting authorities as to whether, assuming the Court is satisfied of the two matters set out in s.3(1) of the Costs Act, s.2 of that Act contains or gives rise to a residual discretion (see Rodden v R [2023] NSWCCA 202). I note that during the oral submissions of the parties during the hearing on 11 October 2024 following the marking of MFI-5, no submission was made, and no authority was cited, by either party to the effect that the jurisdiction offered by s. 2 of the Costs Act was consensual.
[4]
The Relevant Legislation
Section 2 of the Costs Act relevantly provides as follows:
"2(1) The… judge… in any proceedings relating to any offence… may:
(a) where, after the commencement of a trial in the proceedings, …a direction is given by the Director of Public Prosecutions that no further proceedings be taken… grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings."
Section 3 of the Costs Act relevantly provides as follows:
"3(1) A certificate granted under this Act shall specify that, in the opinion of the… judge… granting the certificate:
(a) if the prosecution had, before proceedings were instituted, been in possession of evidence of all of the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act … of the defendant that contributed to the … continuation of the proceedings was reasonable in the circumstances".
Section 3A of the Costs Act relevant provides as follows:
"3A(1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to "all relevant facts" is a reference to:
(a) the relevant facts established in the proceedings…"
[5]
Determination
The relevant principles in relation to the statutory scheme are well settled - see R v Pavy (1997) 98 A Crim R 396; Mordaunt v DPP [2007] NSWCA 121; Chahal v DPP [2008] NSWCA 152; Cittadini v R [2010] NSWCCA 291.
By having regard to those principles and to:
1. the numerous times the proceedings had been before the Court up to, and including, the 3rd trial date;
2. the quoted extracts from the Crown Prosecutor's opening on that 3rd trial date; and
3. the Crown's agreement that the criteria for the granting of a certificate had been established.
I am satisfied that the two matters/criteria in s.3(1) of the Costs Act are made out.
As I have already noted, neither party made a submission that there then is no residual discretion contained within s.2 of the Costs Act. And, as I have already noted, there are conflicting authorities as to whether there is such a residual discretion. On the assumption there is such a discretion, I can discern no discretionary consideration which would cause the Court not to grant a certificate. Accordingly, I make the orders in MFI-5; and grant Mr Hallak a certificate under the Costs Act.
[6]
POST SCRIPT
The ex tempore judgment in this matter was delivered on 11 October 2024. Neither party subsequently requested that it be revised.
The granting of a certificate does not have the force of a Court order (for the payment of costs). The Director General of the Department of Communities and Justice retains the ultimate power to make a payment from the Consolidated Funds of costs to which a relevant certificate relates (cf. s.4 of the Costs Act).
On 10 February 2025 the Reporting Services Branch on behalf of "DCJ Legal" requested a revised copy of the costs judgment, which has been prepared without access to the Court file.
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: 25 February 2025