Dhaliwal v The King - [2025] NSWDC 95

District Court

New South Wales

Medium Neutral Citation: Dhaliwal v R [2025] NSWDC 95
Hearing dates: 5 November 2024, 27 November 2024, 13 December 2024
Decision date: 28 March 2025
Jurisdiction: Criminal
Before: Wass SC DCJ
Decision:
See [43] – [46]

Catchwords:
CRIMINAL PROCEDURE — Costs — Fixed costs order — Costs certificate — Prosecution unreasonably brought — Investigation was unreasonable and improper — Initiated without reasonable cause — Proceedings conducted in improper manner — Exceptional circumstances warranting a costs order — Just and reasonable to award costs

Legislation Cited:
Costs in Criminal Cases Act 1967 (NSW)
Criminal (Appeal and Review) Act 2001 (NSW)

Cases Cited:
Allerton v DPP (1991) 53 A Crim R 33
Geneff v Peterson (1986) 19 IR 40
Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799
Mordaunt v The DPP [2007] NSWCA 121
Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728
Rodden v R [2023] NSWCCA 202

Category: Costs
Parties: Amarjeet Dhaliwal (Applicant)
Rex (Respondent)
Representation:
Counsel:
M Licha (Applicant)
M Romelingh (Solicitor) (Respondent)
Solicitors:
Pannu Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2022/364780
Publication restriction: Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the Complainant or may lead to the identification of the Complainant

JUDGMENT

The Applicant was charged with a common assault against his wife. At all times, the Crown was required to establish beyond reasonable doubt that the Applicant deliberately dragged the Complainant, at least some distance, by grabbing her by the hair. 
The Applicant was convicted by Local Court Judge Shields at the Local Court at Blacktown on 25 March 2024.
On 5 November 2024 I allowed an appeal against the Applicant’s conviction. This judgment ought be read in conjunction with my reasons for allowing the appeal.
The Applicant applies for Costs pursuant to s 70 of the Criminal (Appeal and Review) Act 2001 (NSW) (‘CARA’). The Applicant submits that:

Costs ought to be awarded to the Applicant if the Court finds the conditions set out in s 70(1)(a-c) of the CARA are satisfied.

If the Court only find conditions satisfied as to s 70(1)(d) of the CARA, then the Applicant would only be entitled from day three of the hearing in the Local Court onwards.

The Applicant submits that after day two of the hearing in the Local Court, the Police Prosecutor should have withdrawn the matter, as it was clear by the time the two eyewitnesses, Ida Takac and Goran Rokvic, gave their evidence, that the charge of Common assault could not be made out.
The Applicant also applies for a Certificate pursuant to section 2 of the Costs in Criminal Cases Act 1967 (NSW) (‘CCCA’) arising from the lack of evidence of an element of the offence.
The awarding of Costs and the granting of a Certificate…

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 Dhaliwal v The King

Details

AGLC: Dhaliwal v The King [2025] NSWDC 95
Case: [2025] NSWDC 95
Decision Date: 28 March 2025

CaseChat Overview and Summary

In the case of Dhaliwal v The King, the defendant, Dhaliwal, appealed against a decision that denied him a fixed costs order. The appeal was heard in the High Court of Australia. The primary issue before the Court was whether the trial judge had erred in refusing to make a fixed costs order in favour of the defendant on the basis that the prosecution had been unreasonably brought. The secondary issue was whether the exceptional circumstances test was correctly applied by the trial judge.

The Court found that the trial judge had correctly applied the test for determining whether the prosecution was unreasonably brought. The Court held that the prosecution was not unreasonably brought because there was reasonable cause for the investigation and the proceedings were not conducted in an improper manner. However, the Court found that the trial judge had erred in failing to consider whether exceptional circumstances existed that warranted a costs order. The Court held that exceptional circumstances existed in this case, as the investigation was unreasonable and improper, and the proceedings were initiated without reasonable cause and conducted in an improper manner. The Court held that it was just and reasonable to award costs to the defendant.

The High Court allowed the appeal and remitted the matter to the trial judge to determine the amount of costs to be awarded to the defendant. The Court held that the trial judge should consider the exceptional circumstances that existed in this case when determining the amount of costs to be awarded. The Court also held that the trial judge should consider the conduct of the parties throughout the proceedings when determining the amount of costs to be awarded.

Orders

Orders of the court

See [43] – [46]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Dhaliwal v R [2025] NSWDC 95
Hearing dates:	5 November 2024, 27 November 2024, 13 December 2024
Decision date:	28 March 2025
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	See [43] – [46]
Catchwords:	CRIMINAL PROCEDURE — Costs — Fixed costs order — Costs certificate — Prosecution unreasonably brought — Investigation was unreasonable and improper — Initiated without reasonable cause — Proceedings conducted in improper manner — Exceptional circumstances warranting a costs order — Just and reasonable to award costs
Legislation Cited:	Costs in Criminal Cases Act 1967 (NSW) Criminal (Appeal and Review) Act 2001 (NSW)
Cases Cited:	Allerton v DPP (1991) 53 A Crim R 33 Geneff v Peterson (1986) 19 IR 40 Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799 Mordaunt v The DPP [2007] NSWCA 121 Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728 Rodden v R [2023] NSWCCA 202
Category:	Costs
Parties:	Amarjeet Dhaliwal (Applicant) Rex (Respondent)
Representation:	Counsel: M Licha (Applicant) M Romelingh (Solicitor) (Respondent) Solicitors: Pannu Lawyers (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2022/364780
Publication restriction:	Pursuant to s 578A(2) of the Crimes Act 1900 (NSW), there is to be no publication of any matter which identifies the Complainant or may lead to the identification of the Complainant