Anthony John Sidgreaves v The Queen; AJS Hotel Management P/L v The Queen

[2017] NSWDC 70

District Court

New South Wales

Medium Neutral Citation:	Anthony John Sidgreaves v R; AJS Hotel Management P/L v R [2017] NSWDC 70
Hearing dates:	On the papers
Date of orders:	04 April 2017
Decision date:	04 April 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	The application for costs is refused
Catchwords:	COSTS – application following successful appeal – confinement of costs – liabilities incurred – money paid – professional legal services – compensation for litigant in person
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss.28(3), 70(1), 70(2) Liquor Act 2007 s.60
Cases Cited:	Cachia v Hanes (1994) 68 ALJR 374 Halpin v Department of Gaming and Racing [2007] NSWSC 815
Category:	Costs
Parties:	Anthony John Sidgreaves (Appellant) AJS Hotel Management P/L (Appellant) Regina (Respondent)
Representation:	Solicitors: Anthony John Sidgreaves (Both Appellants) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/00066229; 2014/00209796

Judgment

1. Anthony John Sidgreaves (the applicant) seeks an order for costs following his conviction appeal being allowed on 11 May 2016.

The relevant law

2. Pursuant to section 28(3) of the Crimes (Appeal and Review) Act 2001 (the Act), and subject to the provisions of section 70 of that Act, the District Court may make such an order as to the costs to be paid by either party as it thinks just to do so.

3. Section 70(1) of the Act relevantly provides:

1. 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.

(2)  This section does not apply to the awarding of costs against a respondent acting in a private capacity.

..

4. The requirements to establish the various limbs of section 70 were considered by Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815.

Consideration

5. The applicant was charged with the offence in his capacity as the licensee of the hotel. The applicant could only be the licensee if he had been approved as the licensee by the Authority or was the deemed licensee by operation of section 61 Liquor Act 2007.

6. At the time when the applicant was charged the prosecution should have known or could have reasonably discovered that the applicant was not the licensee of the hotel. Accordingly, the preconditions of sections 70(1)(a) and/or (c) are established.

7. Costs are confined to liabilities incurred or money paid for professional legal services. They do not include compensation for the time spent by a litigant who is not a lawyer in preparing and conducting his or her case: see Cachia v Hanes (1994) 68 ALJR 374.

8. The applicant has allegedly made some payments made to a firm of solicitors and counsel for work done in the Local Court proceedings. There is no evidence on which I could determine if any part of those costs is properly referrable to this application.

9. The order that I make is the application for costs is refused.

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Decision last updated: 04 April 2017