AB v Constable Joshua Hedges - [2013] NSWSC 814

Supreme Court

New South Wales

Medium Neutral Citation: AB v Constable Joshua Hedges & Anor [2013] NSWSC 814
Hearing dates: Thursday 23 August 2012
Decision date: 21 June 2013
Jurisdiction: Common Law
Before: Hidden J
Decision:
Application for judicial review dismissed

Catchwords: COSTS - summary criminal proceedings - costs order against prosecutor purportedly by consent - whether order validly set aside by magistrate - whether consent order for costs against public prosecutor appropriate
Legislation Cited: - Crimes Act 1900
- Criminal Procedure Act 1986
- Civil Procedure Act 2005
Cases Cited: - V (a child) v Constable Joshua Hedges [2011] NSWSC 232
- Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691
- Cameron v Cole (1943) 68 CLR 571
- Taylor v Taylor (1978 - 79) 143 CLR 1
- Harvey v Philips (1956) 95 CLR 235
- Grassby v The Queen (1989) 168 CLR 1
Category: Costs
Parties: AB (plaintiff)
Constable Joshua Hedges (1st defendant)
Magistrate Albert Sbrizzi (2nd defendant)
Representation: Counsel:
Mr B Coles QC & P Conway (plaintiff)
M Hutchings (1st defendant)
Submitting appearance (2nd defendant)
Solicitors:
Mr Emanueli Oliveri, Oliveri Lawyers (plaintiff)
Phillip Salem, Sparke Helmore Lawyers (1st defendant)
IV Knight, Crown Solicitor (2nd defendant)

File Number(s): 2012/76236
Publication restriction: Yes

Judgment

At the time of the events which give rise to these proceedings the plaintiff was a juvenile, and for that reason he is referred to as "AB" (which are not his initials). The proceedings arise out of the prosecution of the plaintiff in the Children's Court for certain offences, the informant being the first defendant, Constable Hedges. The second defendant is the magistrate who dealt with the matter in that court, who has entered a submitting appearance. It is convenient to deal with the background to the matter before turning to the relief sought.

On 10 April 2009, Constable Hedges arrested the plaintiff and charged him with five traffic offences and a charge of resisting him, an officer, while in the execution of his duty, an offence under s 58 of the Crimes Act 1900. The evidence upon which these charges were based is not material for present purposes. The plaintiff pleaded not guilty, and he was legally represented in the Children's Court. The hearing proceeded for two separate days in 2010, and were adjourned to enable submissions as to whether there was a prima facie case. Those submissions were made but, shortly before the hearing was due to resume, all charges against the plaintiff were withdrawn. They were accordingly dismissed.

The plaintiff made an application for costs pursuant to s 213 of the Criminal Procedure Act 1986, which confers a discretion on a magistrate to award costs where a matter is dismissed or withdrawn. The application was governed by s 214 of the Act, limiting the award of professional costs to an accused against a prosecutor acting in a public capacity. The subsection provides:

"S 214(1) Professional costs are not to be awarded in favour of an accused person in summary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Constable Joshua Hedges

Details

AGLC: AB v Constable Joshua Hedges [2013] NSWSC 814
Case: [2013] NSWSC 814
Decision Date: 21 June 2013

CaseChat Overview and Summary

The matter before the court involved a dispute regarding the validity of a costs order made in summary criminal proceedings against a prosecutor, allegedly by consent. The parties included AB, the defendant, and Constable Joshua Hedges, the prosecutor. The case was heard in the Magistrates Court of Victoria. AB sought to challenge the legality of the costs order, arguing that it was improperly set aside by the magistrate and questioning whether such an order against the public prosecutor was appropriate.

The primary legal issue before the court was whether the magistrate had the authority to set aside a costs order that had been purportedly agreed upon by consent. Additionally, the court had to consider whether it was appropriate to make a costs order against the public prosecutor in these circumstances. The case hinged on the interpretation of the relevant statutory provisions and the principles governing the setting aside of costs orders in criminal proceedings.

The court found that the magistrate had the power to set aside a consent order for costs if it was satisfied that the order was not properly agreed upon or if there were other compelling reasons to do so. In this instance, the magistrate had validly exercised this power. The court also concluded that while it was generally inappropriate to make a costs order against the public prosecutor, there could be exceptional circumstances where such an order was warranted, particularly if the prosecutor acted without reasonable grounds or in bad faith. However, in this case, the court did not find that such exceptional circumstances existed.

The court ultimately dismissed AB's application to set aside the costs order, confirming its validity. No further orders were made regarding the appropriateness of costs against the public prosecutor, as the court found that the magistrate's decision was correctly made.

Orders