Rowlands v R

Investigation conducted in an unreasonable manner - s 70 (1)(a)

1. Unreasonableness is not merely a failure to meet optimum standards, but conversely, an investigation could be unreasonable even though it does not fall grossly below those standards. [6] A failure to interview eyewitnesses might satisfy s 70. [7]
2. In written submissions, Mr Rowlands submitted a litany of conduct by the police to be unreasonable under s 70(1)(a) of the Act: 1. Alleging Mr Rowlands was swearing when the police were confused. [8] 2. Delay in making statements so as to compromise recollections. [9] 3. Alleging the applicant was swearing to a degree that was quite "offensive". [10] 4. "[P]ush the applicant" in the incident. [11] 5. "[A]rrest the applicant". [12] 6. "[A]llege a resist of arrest". [13] 7. "[A]ssert intoxication". [14] 8. "[N]ot to obtain footage from the Eastern Hotel". [15] 9. "[N]ot to investigate with the many passer-by witnesses". [16] 10. "[N]ot to obtain the contact details". [17] 11. "[N]ot to call out to passers-by". [18] 12. "[N]ot to ask staff at surrounding shops". [19] 13. "[N]ot to obtain the footage from the phone of Mr Carlsson", who was a witness of the events. [20]
3. During the hearing, Mr Rowlands acknowledged that several of these matters were not aspects of the investigation, and so were outside the reach of s 70(1)(a). Such matters were aspects of the alleged offence rather than the investigation of it and included matters (a) and (c) to (g) of the list I just read. In the result, the matters pressed on the hearing of the application were the failure to obtain footage from the Eastern Hotel [21] and from one, Daniel Carlsson, [22] the failure to make enquiries of passers-by, [23] and the staff in the surrounding shops, [24] and the delay in preparing police statements. [25]

(i) Failure to obtain footage

1. Mr Rowlands is said to have mentioned that he had been drinking at the Eastern Hotel. The existence of footage from the Eastern Hotel might indicate whether Mr Rowlands attended there. It could not establish whether he used offensive language or resisted arrest at the shopping centre. It might support the assertion of intoxication, but it alone could not disprove it, and in any event, intoxication was of very limited relevance to the charges. I do not regard a failure to obtain footage from the Eastern Hotel as unreasonable conduct in the investigation.
2. Mr Carlsson appeared in some of the footage of the incident to be using his mobile phone to record some of the interaction between Mr Rowlands and the police. However, there is no indication in the evidence that Mr Carlsson was filming anything at the time of the alleged offensive language or resist arrest conduct. Rather, the recording of Mr Carlsson appears to commence immediately afterwards when Mr Rowlands is on the ground and wholly compliant with police demands. In those circumstances, without other evidence, I would conclude that Mr Carlsson's recording would not have added to the evidence of that part of the incident when the alleged offences occurred.
3. Further, the police were present during the incident and heard and saw the events. They also had two recordings of the relevant part of the incident from the shopping centre. The charges concerned offensive language and resisting arrest, which, on the scale of criminal offences, could not fairly be placed at the serious end. In a contest involving relatively minor charges, where the police had two recordings of the incident plus their own recollections, and there was no evidence before me of the relevance of any recording by Mr Carlsson, I am not satisfied that to fail to obtain this recording as part of the investigation was unreasonable.

(ii) Failure to make enquiries of passers-by and shop staff

1. The only passers-by who could give evidence of the offensive language incident were those who passed by at the time of the brief interaction between the police and Mr Rowlands, prior to him being wrestled to the floor of the shopping centre.
2. The CCTV footage indicated three such persons. None of them appeared to notice anything unusual. Rather, the footage indicated that passers-by, at the time of the interaction between Mr Rowlands and the police, prior to him being brought to ground, paid the matter no attention. There was no evidence to indicate that these passers-by made any observations which would assist with the investigation, indicating that they could not assist with the offensive language allegation.
3. Further, it seems unreasonable to expect the police to cease their interaction with Mr Rowlands in order to contact these persons. The police were in the midst of the incident involving an alleged crime and would compromise their own observations of the event and their efforts to secure peace and order in the shopping centre were they to depart from those activities so as to direct their attention to survey the scene to determine if anyone else was watching or potentially hearing what was occurring.
4. The occasion when Mr Rowlands was wrestled to the ground was different. That did capture the attention of a number of persons, including Mr Carlsson. One other person appeared to commence recording the incident and others watched the events unfold. Whether they saw or heard the words "of arrest", and its timing, or viewed Mr Rowlands' brief attempt to strike or push away the police officer's arm, issues in the resist arrest allegation, remains unknown. The question is whether it was unreasonable for the police not to obtain their details and interview them.
5. The CCTV footage indicates that the observers did not remain in the area long after observing the forceful interaction between Mr Rowlands and the police. For the police to obtain their accounts of the event would involve the time and cost of tracking down witnesses, perhaps by using CCTV footage. Alternatively, it would require the police to leave their attention from Mr Rowlands and Mr Carlsson, who was also arrested, so as to take steps to obtain the details of the witnesses.
6. I do not think the police conduct in refraining from either of these options was unreasonable, at least in a matter involving relatively minor alleged offences, where the police have intimate observations of what occurred. It seems unreasonable to expect a costly, time-consuming subsequent inquiry to attempt to find witnesses. As to engaging in that activity at the scene, whether it was appropriate for the police to arrest Mr Rowlands and Mr Carlsson, or to search Mr Rowlands, are not issues I have to decide and about which I make no finding. But the police had determined to engage upon a task. I do not accept that it was unreasonable here for them to focus on that task rather than to devote their attention to gathering evidence, where the task involved the observing and preventing of an alleged offence, especially where the offence was relatively minor and where the police would be interfering with their own observations by searching for other witnesses.
7. I turn to the position of the staff of nearby shops. The incident occurred between a pillar in the shopping centre and an escalator. The CCTV footage indicates that there were shops in the background several metres away, but in the investigation of this relatively minor offence, where the police were present, it does not seem to me to be unreasonable for the police to refrain from asking the shop staff if they heard or saw anything. There was no evidence that anyone made observations or that the police were informed of them. It was open for Mr Rowlands to make those inquiries if he expected shop staff to be able to recall different observations to the police. In any event, observations of a conversation and its aftermath between the police and Mr Rowlands from inside, or in the vicinity of, the shops would be of relatively less value compared to the evidence of the participants involved in the conversation and the subsequent interaction. I am not persuaded, especially in the context of the relatively minor charges, that the failure to obtain statements from the staff of nearby shops was unreasonable.

(iii) Delay in statements

1. The police did not prepare their statements of the incident for some months. It was accepted by the applicant that the significance of that delay is affected by the time it became clear that the proceedings were contested. If the proceedings were not known to be contested, there was little demand for the police formally to prepare statements in what I have called relatively minor alleged offences.
2. Mr Rowlands referred to the court records, which were said to indicate a plea of not guilty relatively early in the proceedings. The circumstance that "PNG maintained" is recorded on 7 April 2020, does not persuade me that a plea of not guilty was formally entered in February, when the matter had earlier been before the Court. Nothing was there recorded to indicate otherwise. Mr Rowlands could have given evidence on this application about when a plea was entered and did not do so. As he bears the onus of establishing the matters in s 70, I would not be inclined to draw an inference in his favour on a matter about which he could give direct evidence but chose not to do so.
3. As the statements were prepared in the weeks after 7 April, there was no unreasonable delay in the preparation of formal statements after the plea was entered and the matter was known to be contested. It follows that the time of the preparation of statements does not establish unreasonableness in the investigation.

Investigation conduct in an improper manner - s 70(1)(a)

1. Mr Rowlands relied on the circumstances that he was pushed by the police in the incident in asserting that the investigation was conducted improperly. That allegation of pushing finds some support in the judgment allowing his appeal, [26] and in the footage. But this is conduct not in the investigation of either alleged offence. Rather, it is conduct in the course of the alleged offence, related to the arrest. I do not regard it as part of the investigation and, therefore, it is not conduct to which s 70 has application.

Initiated proceedings without reasonable cause - s 70(1)(b)

1. Mr Rowlands relied upon the findings of this Court on appeal to allege that the facts did not support the proceedings. But as explained earlier, that is not enough to permit a costs order. On the contrary, it is an exceptional case where proceedings, which led to a conviction that was subsequently set aside, were not reasonably instituted. [27]
2. Here, the institution of proceedings was based upon the observations of two police officers. There was no finding or submission that those observations were falsely made, only that their recollections, and the inconsistencies between them, left the Court unconvinced of proof to the criminal standard. The circumstance that an appeal court does not find an offence proved to the criminal standard by the evidence does not mean that the evidence constituted an insufficient basis to support the charges. To find otherwise is to regard an acquittal as sufficient to satisfy s 70(1)(b), which it is not.
3. Mr Rowlands also submitted that as the words he allegedly spoke were not found to be offensive, in the circumstances of their alleged utterance, the charge of offensive language was initiated without reasonable cause. Again, this submission mistakenly conflates acquittal with no reasonable basis for initiating proceedings. That the alleged language, in the circumstances, is not proved to the criminal standard to be offensive does not mean that at the outset, based on the police officers' evidence, there was no reasonable basis to initiate proceedings for the offence.
4. Mr Rowlands also relied on the police not having Mr Rowlands' account of the events to submit that proceedings were premature and thus unreasonably initiated. Mr Rowlands was plainly a relevant witness to the events, so any available account of his should be considered. But there was no evidence that Mr Rowlands gave the police an account at the time, or subsequently, or if he did, that it was ignored, or that Mr Rowlands was refused an opportunity to make representations about what had occurred. So far as the evidence reveals, Mr Rowlands spoke to the police at the scene. If he gave no version to the police then or later, there was no version to which they could give consideration. The failure to consider an unavailable account cannot be unreasonable.
5. Mr Rowlands also referred to inconsistencies in the accounts of the two police officers. These inconsistencies were not shown to be apparent at the time of the institution of proceedings. The conflicting recollections of the police officers at trial may impact adversely on establishing proof of the offence beyond reasonable doubt, but that alone is not enough to show that the proceedings should not have been instituted. It might be different if there was a clear and material inconsistency in the statements of the police officers, but that was not established. This was not shown to be a case where the proceedings were initiated when "there was no substantial prospect of success". [28]

Proceedings conducted by prosecutor in an improper manner - s 70(1)(b)

1. Mr Rowlands also submitted that the prosecutor failed to draw to the Local Court's attention the differences between the two police officers' accounts. In circumstances where those differences were the foundation of Mr Rowlands' defence in the Local Court, there was little utility in the prosecutor also mentioning it. Where inconsistencies between witnesses can be explained by errors in recollection, and when the matters are drawn to the Local Court's attention by the defence, it is not incumbent on the prosecutor to emphasise those differences as a reason for an acquittal, especially if the prosecutor regards the differences as otherwise explicable. I do not regard the inconsistencies in the police evidence and the way they were dealt with by the prosecutor as establishing any improper conduct in the prosecution.

Exceptional circumstances - s 70(1)(d)

1. Mr Rowlands did not press any other matters going to an unreasonable failure to investigate by the prosecutor under s 70(1)(c). He did, however, argue that the findings of the Court on the appeal constituted exceptional circumstances on the basis that as Mr Rowlands was not found to have used offensive language, or to have resisted arrest, he should obtain an order for costs. As previously explained, these matters are not exceptional. Rather, they occur in every case, for s 70 applies only where an appeal has been successful. It cannot be an exceptional circumstance in a successful appeal that the appeal has been successful.

Conclusion

1. The matters raised by Mr Rowlands as justifying an award of costs may largely be grouped into three categories.
2. The first category is a collection of circumstances of the incident. These are not matters involving the investigation or prosecution of the alleged offence and must fall outside the ambit of s 70.
3. The second category is the argument based on success in the appeal and fails for the same reason.
4. The third category is a list of asserted omissions in the investigation. In the context of relatively minor offences, where the evidence included direct evidence of the observations of police officers and CCTV footage of the incident, I do not regard the alleged omissions as unreasonable conduct in the investigation.
5. For the reasons given, the threshold specified in s 70 is not reached and the application must fail.

Application under the Costs in Criminal Cases Act 1967

1. After judgment, I was reminded of the reference in the applicant's written submissions to a faint reliance in the alternative on ss 2 and 3 in the Costs in Criminal Cases Act 1967, although to my recollection the applicant made no reference to this matter in oral submissions. That faint reference was in these terms: "In the alternative, as a secondary position, the applicant relies on s2 and s3 in the Costs in Criminal Cases Act 1967. As this is a more narrow, and singular test, it is submitted that the Court would preferentially have regard to s70 of the Crimes (Appeal and Review) Act 2001."
2. Section 2 of the Costs in Criminal Cases Act plainly covers costs where a conviction is set aside on an appeal since it expressly refers to that circumstance in s 2(1)(b)(i). Further, s 2 does not impose the same threshold requirements as those imposed for s 70 of the Crimes (Appeal and Review) Act for the granting of a certificate under the Costs in Criminal Cases Act. Threshold matters are imposed in s 3 of the Costs in Criminal Cases Act, namely that the proceedings would not have been instituted had "the prosecution … been in possession of evidence of all the relevant facts". "[A]ll the relevant facts" is a defined term of some complexity. [29]
3. The granting of a certificate in the form specified in s 3 requires that the Court be satisfied of the matters in s 3. A certificate enables the person to whom the certificate has been granted to apply to the Director-General of the Attorney General's Department, and the Director-General may then, if of the opinion that the making of a payment is justified, determine the amount of costs that should be paid up to a maximum amount defined in s 4(3) of the Costs in Criminal Cases Act. The Director-General has a discretion to refuse or defer an application.
4. No formal application for a certificate in the form required by s 3 of the Costs in Criminal Cases Act was sought. Although the Costs in Criminal Cases Act was referred to in the submissions in the way I have earlier quoted, [30] there was no reference to or request for a certificate. Further, a question remains as to whether "the costs" referred to in s 70(1) of the Crimes (Appeal and Review) Act are limited to costs awarded under s 28 of that Act. While there is no express textual provision exempting the provisions in the Costs in Criminal Cases Act from the restriction imposed by s 70, it cannot be ignored that under the Costs in Criminal Cases Act "Costs are not...awarded" under s 3. Rather, the applicant may be granted a certificate under s 2. Whether that certificate results in costs being paid or not is not determined by this Court.
5. In the circumstances where no application for a certificate has been made, I do not propose to make any further orders. If the applicant desires a certificate under the Costs in Criminal Cases Act, he can apply. That should not be construed as an invitation for an application, an indication of the prospects of such a certificate being granted or of the ultimate value of such a certificate.

Orders

1. The order of this Court is that the appellant's application for an order for costs is dismissed.

Endnotes

1. Rowlands v R [2021] NSWDC 723.
2. Regina v JS (No 2) [2007] NSWCCA 309 at [12].
3. Crimes (Appeal and Review) Act 2001, s 28(3).
4. New South Wales, Law Reform Commission, Criminal appeals, (March 2014) at [10.124].
5. State of New South Wales v Cuthbertson [2018] NSWCA 320 at [65]-[66]; see also at [114], [145], [161].
6. JD v DPP & Ors [2000] NSWSC 1092 at [31].
7. Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 at [21].
8. Submissions for the appellant, 23/11/21, p 7.10.
9. Submissions for the appellant, 23/11/21, p 8.1.
10. Submissions for the appellant, 23/11/21, p 8.2.
11. Submissions for the appellant, 23/11/21, p 8.3.
12. Submissions for the appellant, 23/11/21, p 8.3.
13. Submissions for the appellant, 23/11/21, p 8.3.
14. Submissions for the appellant, 23/11/21, p 8.3.
15. Submissions for the appellant, 23/11/21, p 8.4.
16. Submissions for the appellant, 23/11/21, p 8.5.
17. Submissions for the appellant, 23/11/21, p 8.5.
18. Submissions for the appellant, 23/11/21, p 8.5.
19. Submissions for the appellant, 23/11/21, p 8.5.
20. Submissions for the appellant, 23/11/21, p 8.7.
21. (h).
22. (m).
23. (l), (j) and (k).
24. (l).
25. (b).
26. Rowlands at [56].
27. See [6] above.
28. Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 at 264.
29. See Costs in Criminal Cases Act 1967, s 3A.
30. See [38] herein. 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: 19 July 2022