Fosse v DPP & Anor [1999] NSWSC 367 revised - 31/08/99
CURRENT JURISDICTION:
Common Law
FILE NUMBER(S):
013162/98
HEARING DATE(S):
19/4/99
JUDGMENT DATE:
22 April 1999
PARTIES :
John Leslie Fosse Director of Public Prosecutions Jennifer Betts
JUDGMENT OF:
Wood CJatCL
LOWER COURT JURISDICTION:
Local Court
LOWER COURT FILE NUMBER(S) :
N2802 351/98
LOWER COURT JUDICIAL OFFICER:
Betts LCM
COUNSEL :
K. Earl for Applicant R. Burgess for Respondent
SOLICITORS:
Collins & Thomsom (A) R.Gray (DPP)
CATCHWORDS:
DECISION:
Summons dismissed
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IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
No. 13162/98 NSWSC 367
WOOD CJ at CL
THURSDAY 22 APRIL 1999
FOSSE v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
JUDGMENT
1 HIS HONOUR: On 12 December 1997, the appellant was charged with goods in custody (S 527C of the Crimes Act 1900), following the execution of a search warrant, on the previous evening, at his home at 629 King Georges Road Penshurst, by officers of the National Crime Authority. That matter came before the Local Court at Sutherland for hearing before Jennifer Betts LCM, on 8 May, 26 June and 31 August 1998. On 1 September 1998, Betts LCM found that there was no prima facie case and dismissed the charge. 2 The plaintiff thereafter made an application for costs pursuant to S 81 of the Justices Act 1902, a section which is in the following terms: “Payment of costs by defendant, or by prosecutor or complainant
(1)The Justice or Justices making any conviction or order may in and by such conviction or order adjudge that the defendant shall pay to the clerk of the court, to be by him paid to the prosecutor or complainant, or, in the case of an order of dismissal, that the prosecutor or complainant shall pay to the clerk of the court, to be by him paid to the defendant such costs as to such Justice or Justices seem just and reasonable. (2) The amount so allowed for costs shall in all cases be specified in the conviction or order. (3) (a)For the purpose of the exercise of the power conferred by subsection (1), any order made under subsection (1) of section 556A of the Crimes Act 1900, shall have the like effect as a conviction. (b)The amount allowed for costs under subsection (1) as extended by this subsection shall be specified in the order made under subsection (1) of the said section 556A and that order shall be deemed to be an order whereby a sum of money is adjudged to be paid within the meaning of this Act.
(4)Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any 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 prosecution in an improper manner; (c) that…
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.
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AGLC
Fosse v DPP [1999] NSWSC 367
Case
[1999] NSWSC 367
Decision Date
CaseChat Overview and Summary
In Fosse v DPP, the applicant, John Leslie Fosse, sought an order in the nature of certiorari and mandamus to quash a decision of the Local Court which refused to award him costs following the dismissal of a charge against him. The applicant was charged with possessing goods in custody that may be reasonably suspected of being stolen or unlawfully obtained. The Local Court dismissed the charge, finding that there was no prima facie case. However, the court refused to award the applicant costs under Section 81 of the Justices Act 1902. The applicant contended that the prosecution unreasonably failed to investigate the source of the money, and that other exceptional circumstances made it just and reasonable to award him costs.
The court found that the applicant had not established any of the exceptions under Section 81(4) of the Justices Act that would entitle him to costs. The court held that the prosecution was not required to prove beyond reasonable doubt that the money was stolen, but only that it may be reasonably suspected of being unlawfully obtained. The court also found that the prosecution did not unreasonably fail to investigate, as the applicant had declined to be interviewed and had not provided sufficient evidence to suggest that the prosecution should not have been brought. The court further held that there were no exceptional circumstances relating to the conduct of the proceedings that would make it just and reasonable to award costs to the applicant.
The court dismissed the summons, finding that there was no jurisdictional error or mistake of law that would warrant the grant of certiorari or mandamus. The court held that the Local Court correctly exercised its discretion under Section 81(4) and that the applicant's claim must fail. The court ordered that the summons be dismissed and invited the parties to be heard in relation to the costs of the summons.