Ms Mikhaylova ('the appellant') successfully defended two charges of common assault heard in the NSW Local Court in 2022 and 2023. Both offences were dismissed on 3 November 2023 on the basis that in neither case had a prima facie case been established.
At the conclusion of the Local Court hearing, the applicant made an application for costs, relying upon sections 213 and 214 (1)(a) and (c) of the Criminal Procedure Act 1986.
The application was refused by the Magistrate.
On 10 November 2023 the appellant lodged a Notice of Appeal to the District Court "to cost compensation orders only".
In her Notice of Appeal, the appellant wrote relevantly: "section 214(1) is applicable. Court has jurisdiction to order costs compensation for the costs incurred in defending against unfounded charges."
The relevant provisions of the Criminal Procedure Act 1986 are:
211 Definition
In this Part -
professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court.
212 When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.
(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967.
Note -
The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction.
213 When professional costs may be awarded to accused persons
(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.
(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.
(3) N/A
(4) Repealed
(5) The order must specify the amount of professional costs payable.
Limit on award of professional costs to accused person against prosecutor acting in public capacity
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.
R v Mikhaylova [2024] NSWDC 90 | Case summary | Zoe
The appellant was unrepresented in the Local Court hearing and in these proceedings. At an early stage of the Local Court proceedings she was legally represented, however that was not the case during the substantive hearing.
The proposed appeal was listed for mention on 23 January 2024 and adjourned for hearing on 19 March 2024.
The Crown has filed submissions that in the absence of any available appeal relevant to the two charges dismissed by the Local Court, the District Court has no jurisdiction to entertain an appeal against the Magistrate's refusal to grant the appellant's application for costs.
The appellant has also filed detailed submissions, to be found firstly in an affidavit she has affirmed on 2 January 2024 at pages 5-6, together with parts of a further affidavit affirmed by the appellant dated 22 February 2024 at pages 2-5. It is apparent from this affidavit that these submissions were drafted as a response to the Crown submissions, wherein it was said that the Court did not have jurisdiction to hear the appeal.
[2]
Does the Court have jurisdiction?
The jurisdiction of the District Court is established by statute.
The District Court Act 1973 (NSW), s 166 states:
166 Criminal jurisdiction of the Court
(1) The Court has the criminal jurisdiction conferred or imposed on it by or under this Act, the Criminal Procedure Act 1986 and any other Act.
(2) The Court has generally the same criminal jurisdiction as each Court of Quarter Sessions had immediately before the commencement of this Act, except as regards any offences prescribed for the purposes of section 46 of the Criminal Procedure Act 1986.
Appeals to the District Court from decisions in the Local Court are to be made pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) ('the Act').
Part 3 Division I of the Act sets out, relevantly, the appeals available to an appellant to the District Court from a decision in the Local Court as follows:
Subdivision 1
Making of appeals
11 Appeals as of right
(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).
(1A) N/A
(1B) N/A
An appeal must be made -
(a) within 28 days after sentence is imposed, or
(b) N/A
but (in the case of an appeal against a conviction) may not be made before sentence is imposed.
12 Appeals requiring leave
(1) Any person who has been convicted by the Local Court in the person's absence or following the person's plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court.
(2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant -
(a) N/A
(b) N/A
(3) An application for leave to appeal must be made -
(a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or
(b) N/A
The Act makes no reference to the circumstances that apply in this matter: to a defendant or an accused being entitled to appeal to the District Court solely against the refusal of a costs application following the dismissal of criminal charges in the Local Court.
By contrast, the Act expressly provides at s 23(2) for an appeal to be available to a prosecutor against a costs order made in the Local Court:
Subdivision 1 Making of appeals
23 Appeals as of right
(1) N/A
(2) The prosecutor may appeal to the District Court against -
(a) any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor, or
(b) any order for costs made by the Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor.
The contrast between ss 11-12 and s 23 is a clear indication that there is no power for an unsuccessful applicant to appeal to the District Court against a refusal to grant a costs application made pursuant to the Criminal Procedure Act. If such an appeal was available, it can expected that it would have been expressly provided for by s 11-12 of the Act.
The appellant submitted that the District Court was vested with jurisdiction to hear her appeal by way of section 28 of the Crimes (Appeal and Review) Act which states:
28 Miscellaneous powers
(1) N/A
(2) In determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original Local Court proceedings.
(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.
The appellant argues "this section explicitly states that the District Criminal Court (sic) without any limitations possesses the power to exercise any function that the Local Court could have exercised in the original Local Court proceedings which would include costs orders made."
The difficulty I have with this submission is it overlooks the terms of s28(2): before the District Court can exercise any function that the Local Court could have exercised, it must have "an appeal" before it to "determine". The scope of an appeal to the District Court by a defendant in the Local Court is limited by ss 11-12 of the Act, as set out above.
Similarly, the power to order costs, subject to s 70, requires that there be a validly brought appeal before the Court for determination. Section 70 is as follows:
70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied -
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or
(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter -
(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
The terms of s 70(1) also support the conclusion that the District Court's power to award costs is only enlivened when there is a substantive matter before it.
The appellant referred to Logue v DPP (No 2) [2023] NSWDC 494 in support of her argument. In my view this decision does not provide support for the appellant's argument that there is jurisdiction to hear her proposed appeal, because in Logue the District Court had heard and upheld on appeal against a conviction. The Court plainly had jurisdiction by reason of that fact and was thus entitled to consider the issue of costs, having determined the substantive appeal in that appellant's favour. Logue v DPP (No 1) [2023] NSWDC 395
The appellant also relied on the general principle set out in Latoudis v Casey (1990) 170 CLR 534 at pp542-543, that ordinarily cost orders should be made in favour of a successful defendant. That decision, whilst establishing an important principle, was a decision from 1990 that related to summary proceedings taken in Victoria and it predated the Crimes (Appeal and Review) Act.
I have been unable to identify any relevant authority that supports the appellant's argument as to this Court's jurisdiction.
The Crown provided the Court with an unreported judgment of Director of Public Prosecutions v Yalda [1998] NSWCA 277 ('Yalda') where it was held that the District Court had no jurisdiction to hear an appeal from a Magistrate's refusal to order costs, with Mason P observing:
What is clear is that the District Court has no appellate jurisdiction with respect to the Local Court other than is given by statute. One then comes back to s 122 (of the Justices Act 1902). In my view it is just not possible to conjure out of a refusal to make an order for costs a construction that the Magistrate was doing an act falling within s 122 and in particular 'otherwise punishing' the litigant before the Magistrate.
We were invited to interpret s 122 liberally and to provide a remedy for a lacuna. Section 122 has been around for a long time. It has been amended from time to time as deficiencies have been discovered. I do not think it would be part of the proper exercise of the judicial function to be as liberal as the invitation implies. The section clearly does not apply to this situation.
I have been unable to find a case dealing with this issue since Yalda, or since the enactment of the Crimes (Appeal and Review) Act.
Although expressed in different terms, the essential features of the jurisdiction of the District Court to hear appeals from criminal cases decided in the Local Court appears to be the same then as it is now; see s 120 and s122 of the Justices Act 1902 (NSW) (Repealed).
[3]
Conclusion
My conclusion is that the District Court lacks jurisdiction to hear and determine the appellant's proposed appeal against the refusal in the Local Court of her application for costs pursuant to the Criminal Procedure Act.
For this reason, I order that the appeal be dismissed for want of jurisdiction.
[4]
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: 27 March 2024