Director of Public Prosecutions (NSW) v Harris

[2015] NSWLC 22

Local Court

New South Wales

Medium Neutral Citation:	Director of Public Prosecutions (NSW) v Harris [2015] NSWLC 22
Hearing dates:	9 November 2015
Decision date:	24 November 2015
Jurisdiction:	Criminal
Before:	Huntsman LCM
Decision:	The Local Court has jurisdiction to consider the application for costs
Catchwords:	CRIMINAL PROCEEDINGS - meaning of “committal proceedings” - meaning of “end of committal proceedings” COSTS - jurisdiction of Local Court for costs in committal proceedings
Legislation Cited:	Crimes Act 1900, s 66A Criminal Procedure Act 1986, ss 3, 116, 117 Justices Act 1902 (repealed), ss 41, 41A
Cases Cited:	Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 Hanna v Horler [1999] NSWSC 1159 Hammond v Director of Public Prosecutions [2013] NSWSC 888
Category:	Costs
Parties:	Timothy Pieremont Harris (accused/applicant) Director of Public Prosecutions (NSW) (prosecution/respondent)
Representation:	Solicitors: Mr G A Walsh OAM (for the accused/applicant) Mr M Love (for the prosecution/respondent)
File Number(s):	2015/38038
Publication restriction:	Prohibition on identification of complainants in prescribed sexual offence proceedings – s 578A Crimes Act 1900

Judgment

1. An application for costs was made by the accused, Mr Harris, (the applicant) at the close of committal proceedings. The application for costs is opposed by the Director of Public Prosecutions (DPP) (the respondent). The respondent raises a preliminary issue for determination, that the Local Court does not have jurisdiction to make the costs order sought. By agreement the hearing of the substantive application has been adjourned pending my determination on the jurisdictional issue.

2. I am advised by the respondent that the same jurisdictional issue is before the District Court, at a sitting in December 2015. However, there is no indication that a decision will be made on the issue as at that date; the proceedings may be adjourned or the decision of the District Court may be reserved. Given the length of time the proceedings have been before the Local Court I decided to determine this matter.

Issue for determination

3. Jurisdiction is challenged on the basis that s 116(1) of the Criminal Procedure Act 1986 (the Act) only permits an order for costs “at the end of committal proceedings”. Section 117 provides further limitations on the award of costs. Section 3 defines committal proceedings as “a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence”. The respondent argues that the present matter was only ever listed for mention, there was no hearing, and therefore no committal proceedings, and as such no jurisdiction for costs pursuant to s 116 of the Act.

4. I am required to decide the following issues:

1. What is the meaning of “committal proceedings” in the Act?

2. What is the “end of committal proceedings”?

3. What is the meaning of s 116 in the context of s 117 of the Act?

Background

5. On 18 September 2014 the applicant was charged with two offences pursuant to section 66A(2), Crimes Act 1900 (Sexual Intercourse with Child Under 10 years by Person in Authority). Both offences (H56628841, sequences 1, 2) particularised the same complainant, being WW; the first offence date was 1/1/2011 - 1/7/2011, and the second offence date was 9/12/2013 – 18/7/2014.

6. On 6 February 2015 the applicant was charged with a further two further offences pursuant to section 66A(2) (H56623725, sequences 1, 2); however, those offences related to a different complainant, being YY. The offence dates, for both those matters, were 4/7/2013 – 10/7/2014.

7. The procedural history of each set of matters is as follows. The first two charges, in respect of complainant WW, were first listed on 8 October 2014 when orders were made for the service of the brief by 19 November and reply by 10 December 2014. The matter was listed, on behalf of the accused, for an application to review bail on 15 October, which was finalised on 12 November 2014 when bail was varied. The DPP first appeared in the matter on 15 October 2014. On 10 December 2014 the matters were listed for reply to the brief but were adjourned to 11 February 2015 for the balance of the brief to be served. The court was advised on 11 February that the brief had been served but further time was sought by the accused for reply and the matter was adjourned to 18 March 2015.

8. The matters involving complainant YY were first listed on 6 February 2015 when a release application was made, the applicant having been refused bail by the police. Bail was refused and the matter adjourned to 11 February 2015 to be listed on the same date as the charges involving the complainant WW. Thereafter both matters were listed on the same dates. On 11 February 2015 brief service orders were made for the new matters, which were adjourned for reply on 18 March 2015. The applicant was bail refused for the second set of charges from 6 February 2015 to 20 April 2015, when bail was granted by the Supreme Court.

9. From March 2015 both sets of matters remained listed together on various mention dates. Adjournments were sought so that representations made by the accused could be considered by the prosecution. On 5 August 2015 the court was advised that a review by a Senior Crown Prosecutor was in progress. The matters were briefly further adjourned, and on 19 August 2015 all charges were withdrawn.

10. On 19 August 2015 the applicant applied for costs. The costs application was adjourned for the filing of written submissions and was listed for hearing on 6 November 2015. On that date it was agreed that the jurisdictional issue should be determined before hearing the substantive costs application. On 6 November 2015 I reserved, adjourning the matter to 24 November 2015 for decision.

DPP submissions challenging jurisdiction

11. The respondent provided written and oral submissions to the effect that there was no jurisdiction to award costs pursuant to s 116 of the Act as there were no “committal proceedings” as defined in that Act. It is argued that while there were a number of mention dates, there had been no hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial. Reliance was placed on the definition of committal proceedings in s 3 of the Act.

12. It was argued in terms of statutory interpretation that sections 116 and 117 of the Act set up a regime where only very limited circumstances can justify an award of costs in committal proceedings. The respondent concedes that the charges were withdrawn, but the respondent submits there had never been committal proceedings because there had been no hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence.

13. The respondent acknowledges that the word “hearing” is not defined in the Act, but submits that the “hearing” must be when the Magistrate is considering the question of whether to commit for trial, either through paper committal or through the calling of oral evidence on committal. The respondent notes that it may be argued by the applicant that the filing of a Court Attendance Notice is the commencement of committal proceedings, but the respondent submits that the committal “hearing” does not commence with the filing of the Court Attendance Notice (CAN).

14. Reference is made to sections 47 and 53 of the Act which provide for commencement of committal proceedings. However, it is submitted that it does not follow that any date, from the date of the filing of the CAN, upon which the proceeding is before the Local Court, is “a hearing before a Magistrate to the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence”. It is submitted that every court date following the filing of the CAN cannot be said to be “committal proceedings” within the definition provided by section 3 of the Act.

15. The respondent notes support for a contrary position may arise from consideration of sections 54 and 60 of the Act, however submits that for full meaning to be given to the term “committal proceedings” within the meaning of the Act, the court date must be a “hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence” and if the relevant court date is not such an occasion, for example, a mention date, it does not fall within the definition of committal proceeding. Reliance is also placed on the definition of committal proceedings in the former Justices Act 1902:

Committal proceedings means a hearing before a Justice or Justices to the purpose of deciding whether a person charged with an offence should be committed for trial or sentence, and includes any proceedings that are preliminary thereto, or ancillary thereto.

16. The respondent submits that the current definition which removes the words “includes any proceedings that are preliminary thereto or ancillary thereto” appears a deliberate decision to limit the definition of what amounts to a committal proceeding, which then has the capacity to impact on when costs can be awarded. It is submitted that it is relevant that the focus of the inquiry is “at the end” of committal proceedings, not during the process, and it is argued that what occurred in the current case was during the process, rather than at the end, of committal proceedings.

17. The respondent submits that further support for the argument can be found in the provisions governing the commencement of summary proceedings and when costs may be awarded. It is noted the provisions are similar to those governing indictable charges and costs in committal proceedings. It is submitted that the term “summary proceedings” is not defined by section 3, or elsewhere in the Act, and therefore the inclusion of the definition of “committal proceedings” was deliberate, indicating that the words of the definition must be applied by the court. The express exclusion or inclusion of certain words and definitions in legislation must be viewed as a conscious choice by the legislature rather than mere chance. The respondent submits that the change in wording, from the previous definition in the Justices Act, was done with the intention to limit the circumstances in which costs could be awarded by the Local Court in proceedings for indictable charges. The respondent submits there is no ambiguity in the words of the section and the purpose of sections 116 and 117 was to significantly limit those situations where costs could be awarded. The respondent submits that consistent with that approach, section 116 should be limited to those circumstances where the Magistrate is engaged in the question of whether an indictable offence should be committed for trial, and that this has not occurred in the current matter.

Submissions by the applicant

18. Mr Walsh, legal representative for the applicant, made detailed oral submissions. The applicant submits that it would defeat the purpose of the costs provisions in the Act for the court to adopt the interpretation urged by the respondent.

19. The applicant noted that the respondent’s submission that section 116 only applies in very limited circumstances where the committal proceedings are by way of a contested committal hearing. The applicant submits that must be rejected as being a restriction not intended by the legislation. The words “end of proceedings” means a conclusion of proceedings with finality; and committal proceedings commenced by a CAN may end in a variety of ways. A Magistrate may decide to commit for trial; alternatively a Magistrate may decide, pursuant to ss 62/64/66 of the Act, to discharge the defendant; and proceedings may also end where those proceedings are aborted (for example, where a Magistrate needs to disqualify him or herself). Just as there are various ways a committal proceeding may end, there are various ways a committal can proceed: there may be a contested committal hearing with witnesses in attendance; there may be a paper committal/ hand-up brief; or there may be a committal waiver.

20. The applicant submits that the Magistrate’s jurisdiction for costs arises at the end of the proceedings: it is the end of proceedings which triggers the s 116 application for costs. The applicant submits that if the respondent’s interpretation is correct, the Local Court would only have power to award costs, upon withdrawal of the charges, after contested proceedings, and that having regard to the whole of the legislation, the purpose of the section, and the nature of committal proceedings, this cannot be right.

21. The applicant agreed that the intention of the legislation is to limit the circumstances in which costs can be awarded, but submits that what is being advanced in the present case is a further limitation not intended by the legislation.

22. The applicant also relied on principles of statutory interpretation, as set out in the decision of the High Court of Australia, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28.

23. At the hearing on 6 November 2015 the applicant relied on oral submissions and I reserved the decision. Additional written submissions by the applicant, dated 19 November, were received by me on 20 November after I had prepared this written judgment. It is noted these were provided without leave of the court, after completion of the hearing. Given the jurisdictional argument was not anticipated by the applicant, and the applicant had prior to the scheduled hearing filed detailed written submissions addressing the substantive costs application, no criticism of the applicant is made. Given receipt of the written submissions after I had prepared this written judgment, I have not detailed the content of the written submissions in this judgment. I have considered the submissions, and the further authorities referred to. However, having regard to the findings I have made, I have not further engaged with the written submissions made by the applicant.

The authorities – discussion

24. In oral submissions the applicant relied upon a decision of the Supreme Court of New South Wales, per Justice Simpson: Hanna v Horler [1999] NSWSC 1159 (Hanna v Horler). The decision involved a challenge to a decision of the Magistrate in relation to costs under the former provisions of section 41A of the Justices Act 1902. In summary the facts of the matter are that committal proceedings came before two Magistrates. The first Magistrate before whom the proceedings commenced made an order disqualifying himself from further hearing the proceedings, and so did not complete the committal proceedings. Committal proceedings were commenced in front of a second Magistrate who heard the matter to finality- the hearing included evidence in the defence case and submissions made over a further period of five days. The second Magistrate, Ms Horler, ordered that the defendant be discharged pursuant to section 41(6). Costs were sought by the defendant and the Magistrate declined to make an order in relation to the committal proceedings which had taken place before the first Magistrate finding that she lacked jurisdiction to make an order in relation to the costs of the previous committal. Justice Simpson after considering various arguments advanced by the parties found as follows:

16 In my opinion the answer to this question lies in a simple analysis of s 41A(1). That section provides for an award of costs following an order discharging a defendant "as to the information then under inquiry". The magistrate is empowered to order the payment of "such costs as … seem just and reasonable". In my opinion there is nothing in that section which deprives the magistrate of the power to award costs which include the costs of an aborted hearing. They are the costs relevant to the prosecution of the information on which the defendants have been discharged.

17 Such a construction has the advantage of being consonant with notions of ordinary justice. If the position adopted by the DPP were correct, the plaintiffs, no matter how deserving, would be disentitled to any costs orders in relation to the proceedings before Mr Kearney, because the power to award costs can only be exercised by a justice "when making an order discharging a defendant…" (or, pursuant to sub para (b), when committing a defendant for trial…"). That is, the order for costs can only be made on the completion of the committal proceedings. Since, by reason of Hulme J's order, Mr Kearney was precluded from completing the committal proceedings, he was disempowered in relation to costs. To hold that defendants in those circumstances had no avenue of recovering costs would lead to an unjust verdict.

25. The applicant states that similarly, in the present matter, the position of the DPP would disentitle a defendant to costs in many committal matters, often held over some months duration prior to the committal hearing, from being entitled to costs orders in relation to the proceedings, no matter how deserving. The applicant submits that to hold that such defendants in appropriate cases had no avenue of recovering costs would be similarly unjust.

26. The respondent submitted that Hanna v Horler is not of assistance in determining the present matter as it involved an award of costs after committal proceedings, being a hearing before a Magistrate for the purpose of determining whether to commit an accused person for trial. The respondent submits the case has no application in the current matter because the current matter involves withdrawal of proceedings prior to committal proceedings, being prior to the hearing, so that there is no jurisdiction for costs.

27. I consider that the case of Hanna v Horler involved an award of costs after an order discharging the defendant after completion of committal proceedings. Relevantly, the applicable costs provision, in s 41A of the Justices Act, specifically provided for the jurisdiction to award costs under subsection (1)(a) “when making an order discharging a defendant as to the information then under inquiry”. The decision in Hanna v Horler is based on this provision- the jurisdiction for the costs order flowed from the Magistrate’s order for discharge of the defendant as to the information then under inquiry. These words are not retained in s 116 of the current Act, which states that a Magistrate may award costs at the end of committal proceedings if the accused is discharged or the matter withdrawn.

28. In determining the meaning of committal proceedings and in particular the definition in section 3 of the Act, the applicant submits that regard must be had to the purpose of legislation in addition to a literal construction of the words. The applicant refers the decision of the High Court of Australia, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28. That decision involved quite different factual concerns. However, what is relied upon by the applicant is the general statements made by the High Court as to principles of statutory construction, particularly in the context of conflicting or competing statutory provisions. The High Court stated (footnotes omitted):

69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

70 A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

71 Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”…

…

78 However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning. In Statutory Interpretation, Mr Francis Bennion points out:

"The distinction between literal and legal meaning lies at the heart of the problem of statutory interpretation. An enactment consists of a verbal formula. Unless defectively worded, this has a grammatical meaning in itself. The unwary reader of this formula (particularly if not a lawyer) may mistakenly conclude that the grammatical meaning is all that is of concern. If that were right, there would be little need for books on statutory interpretation. Indeed, so far as concerns law embodied in statute, there would scarcely be a need for law books of any kind. Unhappily this state of being able to rely on grammatical meaning does not prevail in the realm of statute law; nor is it likely to. In some cases the grammatical meaning, when applied to the facts of the instant case, is ambiguous. Furthermore there needs to be brought to the grammatical meaning of an enactment due consideration of the relevant matters drawn from the context (using that term in its widest sense). Consideration of the enactment in its context may raise factors that pull in different ways. For example the desirability of applying the clear literal meaning may conflict with the fact that this does not remedy the mischief that Parliament intended to deal with."

Discussion and Findings

29. To determine the jurisdictional argument, it is necessary to construe the provisions of section 3 and section 116 of the Act, and in doing so I have had regard to the authorities detailed above. I am required to consider the words of sections 3 and 116, having regard to the language of the Act as a whole, and its purpose, with consideration of the context of the provisions.

30. The section 3 definition provides:

(1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires:

…

committal proceedings means a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence.

31. Section 116 (1)(a) states:

116 When costs may be awarded to accused persons

(1) A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the registrar, for payment to the accused person, if:

(a) the accused person is discharged as to the subject-matter of the offence or the matter is withdrawn, or …

What is the meaning of “committal proceedings” in the Act?

32. The Act makes several references to “committal proceedings” in various provisions. It is clear from the definition in section 3 of the Act that “committal proceedings” are defined as “a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence” (my italics). The words in the definition provide for a hearing, for the purpose of a particular decision. The literal meaning of the words in the section 3 definition, without consideration of the Act as a whole, do restrict those proceedings to a hearing for the stated purpose of deciding whether to commit for trial or sentence. One must however read the definition with regard to all of the words in s 3: subsection (1) states, “In this Act, except in so far as the context or subject-matter otherwise indicates or requires … ‘committal proceedings’ means…”. This indicates that the definition should be considered in context and with regard to subject matter.

33. Some reliance was placed in the respondent’s submissions on the definition previously contained in the Justices Act 1902:

committal proceedings means a hearing before a Justice or Justices to the purpose of deciding whether a person charged with an offence should be committed for trial or sentence, and includes any proceedings that are preliminary thereto or ancillary thereto.

34. It was suggested that the removal of the words “and includes any proceedings that are preliminary thereto or ancillary thereto” indicated an intention to restrict the meaning of committal proceedings to the hearing. However, a definition of committal proceedings was contained in the Criminal Procedure Act 1986 prior to the repeal of the Justices Act, and with the repeal of the Justices Act and the insertion of the provisions relating to committals in the Criminal Procedure Act 1986, the existing definition in the Criminal Procedure Act was retained largely unamended. By the Criminal Procedure Amendment (Justices and Local Court Act) 2001 No 119 (the 2001 amending Act), the Criminal Procedure Act 1986 was amended to contain the provisions relating to committal proceedings. The 2001 amending Act provided that the provisions were to commence on a date to be proclaimed, and the majority of the provisions commenced in 2003. (Historical notes indicate the date of commencement of Sch 1 [17] was 19 April 2002 (s 2 and GG No 72 of 12/4/2002, p 2200); the date of commencement of the remainder was 7 July 2003 (s 2 and GG No 104 of 27/6/2003, p 5976).

35. Prior to the insertion of the committal provisions into the Act by the 2001 amending Act, the definition of committal proceedings was:

committal proceedings means a hearing before a Magistrate (or one or more Justices) for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence.

36. The 2001 amending Act merely removed the reference to “one or more Justices” from the existing definition in the Act.

37. Nothing appears to turn on the removal of the words “includes any proceedings that are preliminary thereto or ancillary thereto” which previously existed in the Justices Act 1902, given the existing definition of committal proceedings which was contained in the Criminal Procedure Act, prior to the repeal of the Justices Act (by the Justices Legislation Repeal and Amendment Act 2001 No 121). Further, when procedural provisions for committal proceedings were placed in the Criminal Procedure Act by the 2001 amending Act, the definition of committal proceedings which previously existed in the Act remained largely unchanged. The Second Reading Speech of 4 December 2001 does not assist as it does not comment on this change; the main focus of the Second Reading Speech was the intention of Parliament to simplify procedural laws and locate the procedural provisions relating to criminal proceedings in one Act.

38. In determining the jurisdictional issue I must also be satisfied as to the meaning of “end of committal proceedings” as used in section 116 of the Act. It is therefore important to consider the meaning of “committal proceedings” in the Act as a whole, to understand the intended meaning of the words in section 116.

39. The term “committal proceedings” is used throughout the Act. Indeed the provisions relating to committals are contained in Chapter 3, Part 2 of the Act which is entitled “Committal Proceedings” and contains the procedural provisions governing committal proceedings. Part 2 contains Divisions 1 to 7, which are, for example, entitled “Commencement of Proceedings” (Division 1), “Committal Proceedings Generally” (Division 2), “Prosecution Evidence” (Division 3), “Defence Evidence” (Division 4), “Procedure if Accused Pleads Guilty” (Division 5), “Costs” (Division 7).

40. The Act provides for the commencement of committal proceedings by way of court attendance notice (CAN) (s 47), and s 53 provides that all proceedings are taken to have commenced on the date on which a CAN is filed. The clear words of those provisions indicate that the committal proceedings have commenced (and are therefore on foot) once the CAN has issued and been filed. They do not end until the accused is discharged by the Magistrate, or the proceedings are withdrawn by the prosecution, or until the Magistrate decides to commit an accused for trial or sentence.

41. Section 55 of the Act states that the Magistrate is to conduct committal proceedings, and determine the proceedings. The Act sets up a procedural scheme for the conduct of the committal, including that the Magistrate set a time for the taking of prosecution evidence, the serving of such evidence on the accused person, and for the accused to serve a notice in reply (ss 60, 61):

60 Time for taking prosecution evidence

(1)   On the first return date for a court attendance notice in any committal proceedings, or at such later time or times as the Magistrate determines, the Magistrate must set:

(a) the date, time and place for taking the prosecution evidence and the time within which written statements, and copies of any proposed exhibits identified in the statements (or a notice relating to inspection of them), must be served on the accused person, and

(b) the time within which the accused person must serve on the prosecutor any notice requesting the attendance of a person who made a written statement.

Note. Prosecution evidence is to be given by written statements (see Division 3), which includes a reference to a recorded statement in the case of a domestic violence offence (see section 76A (5)).

(2) The registrar must notify the accused person of the date, time and place, and any other time set by the Magistrate, if the accused person is not present.

(3) A registrar may exercise the Magistrate’s functions under this section.

61 Discharge of accused person if prosecutor not present for taking of evidence

(1)   If the prosecutor fails to appear on the day and at the time and place set for taking prosecution evidence in any committal proceedings, the Magistrate must:

(a) discharge the accused person as to the offence the subject of the proceedings, or

(b) if the Magistrate thinks it appropriate, adjourn the hearing to a specified time and place.

(2) The adjournment must not exceed 8 days or such longer period as the accused person may consent to.

(3) Subsection (2) does not apply if the accused person is refused bail and section 41 of the Bail Act 2013 (which provides for a maximum adjournment period) applies.

42. Relevantly, s 60 refers to the “first return date for a court attendance notice in any committal proceedings” which is clearly not a reference to a date that the matter is for hearing. Section 61 provides that if the prosecutor fails to appear on the date and time set pursuant to section 60, the Magistrate must alternatively discharge the accused person the subject of the proceedings, or adjourn the proceedings. Section 61 thereby specifically provides for the end of proceedings if there is not compliance with section 60, or non-appearance by the prosecutor, by discharging the accused. The proceedings which may be ended by discharge of the accused under section 61 are by necessary implication the committal proceedings. Those proceedings would come to an end due to an order for discharge made by a Magistrate under s 61, and would occur without a decision being made by the Magistrate whether to commit for trial, as a discharge under s 61 would not require a hearing of prosecution evidence, nor require a decision by a Magistrate after the taking of prosecution evidence.

43. Section 58 refers to “hearing” but only in the context of change of venue. It is clear that the reference to committal proceedings, and transfer of those proceedings, refers to the proceedings prior to the contested committal hearing:

58 Place of hearing

(1)    A Magistrate may transfer committal proceedings to another Magistrate in another place, if satisfied that:

(a) the principal witnesses to prove the offence live in another place where the offence is alleged to have been committed, or

(b) for any other reason, it is in the interests of justice to do so.

(2) The Magistrate may, subject to the Bail Act 2013, make orders necessary to enable the accused person to be brought before the other Magistrate and to be dealt with according to law

44. Procedural provisions of the Act also allow for waiver of committal; in such circumstances there is no committal hearing but the Magistrate may still make an order committing for trial (s 68).

45. Section 54(1) refers to “first attend before a Magistrate for the hearing of committal proceedings”, and states:

A person who issues a court attendance notice may, at any time after the notice is issued and before the date on which the accused person is required to first attend before a Magistrate for the hearing of committal proceedings, apply for a warrant to arrest the accused person.

46. The references to “first attend” and “for the hearing of committal proceedings” as used in s 54, refer to a part of the procedure well before any hearing date for contested committal proceedings.

47. After considering the Act as a whole, and the references to committal proceedings in ss 47, 53, 54, 60, 61 as set out above, I find that the term “committal proceedings” is not restricted to the hearing date, but includes the proceedings from the issue/filing of the CAN until the end of the proceedings. This interpretation gives a consistent meaning to the language of the Act as a whole.

48. There is some support for this construction when one considers similar provisions in the Act dealing with summary proceedings. The case of Hammond v DPP [2013] NSWSC 888 considered the meaning of “first return date” and “hearing date” in the context of a Magistrate’s determination of a matter in the absence of a defendant under s 196 of the Act. The court considered competing arguments advanced as to the applicable meaning of various provisions of the Act, and noted that there was a requirement to provide reasonable notice of hearing dates and/or first return dates. An argument presented was that the court could not determine a matter pursuant to section 196 of the Act, in the absence of a defendant, where it was not the first return date or a scheduled hearing date, but was a mention date to which the proceedings had been adjourned. The court noted:

… to the extent that the legislature has clearly expressed an intention to streamline summary procedures in circumstances where an accused person has been served with court attendance notice and notice of the date upon which he/she is to attend court, yet does not attend, there is in my view, no denial of procedural fairness. …. The power in section 190(3) is not constrained by the fact that the matter was listed for mention, although that may be a factor that bears upon the exercise of the discretion to proceed to hearing.

49. This reasoning can be applied to the provisions relating to committal proceedings in the Act- the Act intends to set out clear procedures for committal proceedings. Similarly to the provisions governing summary matters, the provisions applicable to committal proceedings in the Act refer to a first return date and to the setting of a further date for the taking of prosecution evidence (s 60).

50. Further, s 54(3A) provides for the issue of a warrant if the accused absconds from the committal proceedings:

If an accused person is not present at the day, time and place set down for the hearing of committal proceedings (including any day to which proceedings are adjourned), or absconds from the committal proceedings, the Magistrate may issue a warrant to arrest the accused person if the Magistrate is satisfied there are substantial reasons to do so and that it is in the interests of justice to do so.

51. Relevantly s 54(3A) distinguishes between “the hearing of committal proceedings” and absconding “from the committal proceedings” which would indicate that committal proceedings cannot be limited to the hearing date. Section 54(3A) provides that if the accused is not present for the day set down for the hearing of committal proceedings, including any day to which the proceedings are adjourned, or absconds from the committal proceedings, a warrant may be issued. It cannot be maintained that the ability to issue a warrant only applies to the contested hearing date, in considering what is meant by absconding from “committal proceedings”. It must also extend to any date which the committal proceeding is listed before the court, including the dates set under s 60, and mention dates.

52. Having regard to all of the provisions of the Act referred to above, and for the reasons already detailed, I find that mention dates must form part of “committal proceedings”, and committal proceedings include the proceedings from the filing of the CAN until the end of the proceedings.

What is the "end of committal proceedings"?

53. Section 116 provides for jurisdiction, for costs orders, at the end of committal proceedings. Committal proceedings may end, as referred to above, by an order discharging the defendant pursuant to section 61 of the Act, and this may occur on the date for the taking of prosecution evidence on non-appearance by the prosecutor. A committal proceeding may also end upon a determination being made by a Magistrate, after a committal hearing, pursuant to section 62 or sections 64/65/66 of the Act, whether such hearing proceeds by way of a hand up brief or after evidence from witnesses.

54. Committal proceedings may also end on a date when the matter is listed for mention and a plea of guilty is entered, facts are tendered to the Magistrate, and after consideration of the facts, the Magistrate decides to accept the guilty plea and commit the accused person for sentence.

55. Further, it is useful in understanding the meaning of “end of committal proceedings” to consider the words of section. Relevantly s 116(1)(a) states:

(1) A Magistrate may at the end of committal proceedings order that the prosecutor pay professional costs to the registrar, for payment to the accused person, if

(a) the accused person is discharged as to the subject-matter of the offence or the matter is withdrawn…

56. The jurisdiction for costs, where a matter is withdrawn, is included in the same subsection as for where an accused is discharged (s 116(1)(a)). An accused will ordinarily be discharged after a committal hearing, however a matter can be withdrawn at any time after it is commenced. The inclusion of both these quite different ways that committal proceedings may end, in the one subsection, in my view militates against the argument that the legislature intended “end of committal proceedings” in s 116, to mean after a committal hearing. An order is made for discharge of an accused in committal proceedings, by a Magistrate, pursuant to s 62 or s 66, if the Magistrate makes certain determinations under each of those sections. However, a matter which is withdrawn by the prosecution is not subject to any determination by the Magistrate; upon withdrawal the order made is “withdrawn and dismissed”. By including in s 116(1)(a) both circumstances- where an accused is discharged or where the matter is withdrawn- the legislature has included in the same subparagraph a matter requiring a determination by the Magistrate (discharge) and a matter not requiring any determination (matter withdrawn). This indicates the legislature did not intend that “end of committal proceedings” in s 116 be restricted to the end of proceedings after a hearing for the purpose of decision by the Magistrate.

What is the meaning of s 116 in the context of s 117?

57. Section 116 provides for when costs may be awarded, and section 117 provides for restrictions on the award of costs against a public officer. Section 117 states:

117 Limit on circumstances when costs may be awarded against a public officer

(1)   Professional costs are not to be awarded in favour of an accused person in any committal proceedings unless the Magistrate is satisfied as to any one or more of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought,

(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.

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

58. Section 116 of the Act should be read in the context of section 117. Section 116 specifies when costs may be awarded and s 117 limits the circumstances when those costs may be awarded against a public officer. Relevantly the limitations in s 117 focus on unreasonable or improper actions in the investigation, or prosecution or conduct of the proceedings. For example s 117 refers to the following considerations: that the investigation was conducted in an unreasonable or improper manner; that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner; that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter; or for other exceptional circumstances relating to the conduct of the proceedings, by the prosecutor, the award of costs is just and reasonable. Section 117 is clearly directed at whether there was some impropriety or unreasonable actions by investigators and/or prosecutors. To further restrict an accused’s access to costs, in the way argued for by the respondent in this matter, would arguably defeat the expressed intention of the legislature that some deficiency or improper conduct by investigators or prosecutor, may see costs awarded in favour of an accused.

59. Consistently with the view of Justice Simpson referred to above, a further restriction on the ability of an accused to recover costs, by adopting the construction put forward by the respondent, could lead to unjust results and to costs not being awarded in cases where it would be ordinarily justified.

60. For all the above stated reasons I am of the view that an accused may apply for costs pursuant to s 116 of the Act, at the end of committal proceedings when the charge is withdrawn, and that committal proceedings include all proceedings before the court in relation to the committal proceedings, from the commencement of proceedings, with the issue/filing of the CAN, until the end of the proceedings. In the current matter there is jurisdiction for the application for costs.

Magistrate C Huntsman

Goulburn Local Court

24 November 2015

*********

Decision last updated: 21 December 2015