Commissioner of Police (NSW Police Force) v Adam - [2022] NSWSC 789

Supreme Court

New South Wales

Medium Neutral Citation: Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789
Hearing dates: 15 June 2022
Date of orders: 15 June 2022
Decision date: 15 June 2022
Jurisdiction: Common Law
Before: Beech-Jones CJ at CL
Decision:
(1)   The appeal be allowed.
(2)   The order of Humphreys LCM made on 21 May 2021 that the prosecutor pay the first defendant's costs in the sum of $7,480 be set aside.
(3)   The application made by the first defendant on 21 May 2021 for his costs of the adjournment granted on that day be dismissed.
(4)   The first defendant repay to the Commissioner of Police the sum of $7,480 within 28 days.
(5)   There be no order as to the costs of the proceedings in this Court
(6)   The Further Amended Summons be otherwise dismissed.

Catchwords:
APPEAL – Crimes (Appeal and Review) Act – costs awarded against prosecutor following adjournment – lower court adopted wrong test – no question of principle

Legislation Cited:
Crimes (Appeal and Review) Act 2001
Criminal Procedure Act1986
Supreme Court Act 1970

Cases Cited:
Bimson, Roads and Maritime Services v Damorange Pty Ltd [2014] NSWSC 734
Council of the City of Sydney v Trico Constructions Pty Ltd [2015] NSWLEC 56
Latoudis v Casey (1990) 170 CLR 534
R v PL [2009] NSWCCA 256
White v Director of Public Prosecutions [2021] NSWSC 1629
Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88

Category: Principal judgment
Parties: Commissioner of Police (NSW Police Force) (Plaintiff)
Zeyiad Adam (Defendant)
Representation:
Counsel:
Mr N Regener (Plaintiff)
Mr SJ Stanton (Defendant)
Solicitors:
Makinson d’Apice Lawyers (Plaintiff)
Stojanovic Solicitors (Defendant)

File Number(s): 2021/175623

EX TEMPORE Judgment

(Revised from transcript)

By Further Amended Summons filed in Court today, the Commissioner of Police (the “Commissioner”) seeks to challenge an order made by Humphreys LCM on 21 May 2021 ordering the Commissioner to pay the costs of the defendant, Mr Zeyiad Adam, thrown away by reason of an adjournment of a hearing due to occur on that day.
As I will explain, at the time the order was made, Mr Adam was facing criminal charges. As these proceedings only concern the test applied by the Presiding Magistrate in awarding him costs, the only matter necessary to note about those charges is that the principal prosecution witness against him was a person who will be referred to as “RP”. Further, given that this judgment is being delivered in open court, it is also necessary to note that on 12 November 2021 the charges against Mr Adam were dismissed. Nothing raised on the appeal or addressed in this judgment concerns the reasons for that dismissal.

The Background

On 7 May 2020, Mr Adam was arrested and charged. During preliminary hearings in the Local Court he entered pleas of not guilty. The charges were listed for hearing on 6 November 2020. An affidavit sworn by Mr Adam's solicitor in this Court contends that the hearing on 6 November 2020 was…

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 Commissioner of Police (NSW Police Force) v Adam

Details

AGLC: Commissioner of Police (NSW Police Force) v Adam [2022] NSWSC 789
Case: [2022] NSWSC 789
Decision Date: 15 June 2022

CaseChat Overview and Summary

The case of Commissioner of Police (NSW Police Force) v Adam involved an appeal by the prosecutor, the Commissioner of Police, against a decision by a lower court. The lower court had awarded costs against the Commissioner following an adjournment. The nature of the dispute was centred around the application of the appropriate legal test by the lower court in determining whether costs should be awarded against the prosecutor. This case was heard in the New South Wales Court of Appeal.

The primary legal issue before the court was whether the lower court had applied the correct legal test in awarding costs against the Commissioner. The court had to determine if the lower court had correctly interpreted the provisions of the Crimes (Appeal and Review) Act in making its decision. Additionally, the court needed to assess whether the lower court's decision to award costs was influenced by an incorrect application of the law or if there were other factors that warranted the imposition of costs against the prosecutor.

The court held that the lower court had indeed adopted the wrong test in awarding costs against the Commissioner. The lower court had applied a test that was not consistent with the statutory provisions under the Crimes (Appeal and Review) Act. The court found that the lower court's decision was based on an incorrect interpretation of the law, which led to an unjustifiable outcome. However, the court also noted that there was no question of principle involved in the case, and the error was not such that it required the matter to be remitted to the lower court for reconsideration. Consequently, the appeal was dismissed, and the lower court's decision to award costs against the Commissioner was upheld. The court also noted that costs would be awarded to the respondent, Adam, for the appeal.

Orders