Hallaby v Harris

[2020] NSWCA 12

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Hallaby v Harris [2020] NSWCA 12

Hearing dates:

On the papers

Date of orders:

17 February 2020

Decision date:

17 February 2020

Before:

Basten JA; McCallum JA

Decision:

(1)   Direct that the prosecutor/informant be identified as the first respondent.

 

(2)   Dismiss the summons seeking leave to appeal filed on 9 October 2019.

 (3)   Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales.

Catchwords:

APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs

CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d)

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 213, 214
Evidence Act 1995 (NSW), s 138
Supreme Court Act 1970 (NSW), s 101

Cases Cited:

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
In Re the Will of FB Gilbert (1946) 46 SR(NSW) 318
Li v Attorney General of NSW [2019] NSWCA 95

Category:

Principal judgment

Parties:

Steven Hallaby (Applicant)
Senior Constable Paul Harris (First Respondent)
Local Court of New South Wales (Second Respondent)

Representation:

Counsel:
Mr A Boe / Mr D Fuller (Applicant)
Mr J King (First Respondent)
Submitting appearance (Second Respondent)

  Solicitors:
Younes + Espiner Lawyers (Applicant)
Hunt & Hunt Lawyers (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2019/235960

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2019] NSWSC 840

Date of Decision:

9 July 2019

Before:

Emmett AJA

File Number(s):

2018/348868

Judgment

1. THE COURT: On 25 November 2016 the applicant was arrested outside his home and charged with assaulting a police officer in the execution of his duty. On 22 December 2017 the charge was dismissed by Magistrate Brender in the Local Court at the Downing Centre. The applicant sought an order that the prosecutor pay his costs pursuant to s 213 of the Criminal Procedure Act 1986 (NSW). On 13 April 2018 the magistrate dismissed that application.

2. On 13 November 2018 the applicant commenced proceedings in the supervisory jurisdiction of the Court seeking judicial review of the magistrate’s dismissal of the costs application. The matter came before Emmett AJA in the Common Law Division on 13 June 2019. By a judgment delivered on 9 July 2019 the applicant was granted an extension of time within which to commence the proceedings in the Supreme Court, but the proceedings were dismissed with costs. [1] The applicant now seeks leave to appeal from the judgment of Emmett AJA.

   1. Hallaby v Local Court of New South Wales [2019] NSWSC 840 (“Hallaby”).

3. As a preliminary matter, the first respondent should be the active party, not the tribunal which made the impugned decision. The proceedings should be renamed accordingly.

Issues on proposed appeal

4. The relevant provisions in the Criminal Procedure Act, pursuant to which an order for costs was sought, were as follows:

213   When professional costs may be awarded to accused persons

(1)   A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

…

(3)   Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because—

(a)   the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b)   the matter is withdrawn or the proceedings are for any reason invalid.

…

214   Limit on award of professional costs to accused person against prosecutor acting in public capacity

(1)   Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court 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 prosecutor 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 professional costs.

Only pars (b) and (d) were relied on in the Local Court.

5. The proposed grounds of appeal stated that the primary judge ought to have made orders in the nature of certiorari and mandamus on the basis of jurisdictional error or error of law on the face of the record committed by the magistrate. Three errors were identified in relation to the application of s 214(1)(b), namely:

1. failing to consider whether the prosecutor honestly believed that the proceedings had a real prospect of success;

2. applying an incorrect onus and standard of proof as to whether the prosecutor had a real prospect of proving the ‘execution of duty’ element of the charged offence, and

3. reaching a conclusion as to whether the proceedings were initiated without reasonable cause:

1. for which there was no evidence;

2. further or alternatively which was illogical or irrational.

A fourth ground alleged error in relation to s 214(1)(d), namely:

(4)   excluding from the scope of ‘other exceptional circumstances relating to the conduct of the proceedings by the prosecutor’ conduct prior to the prosecutor initiating the proceeding against the applicant.

6. In his written submissions, the applicant contended that his application for leave should properly be addressed by considering afresh whether the magistrate had erred in any of the ways identified in the grounds of appeal. That approach was misconceived. Although it may be necessary to have regard to the reasons and decision of the magistrate, the primary focus of an application for leave to appeal from a judge in the Division must be to identify error in that judgment. It is the correctness or otherwise of the judge’s disposal of the summons for judicial review which is the subject of the proposed appeal. According to established principles, it is necessary to establish (i) a ground which is more than merely arguable, (ii) an error in a matter of principle and (iii) if no principle is involved, a substantial miscarriage of justice which should not be left unremedied; that analysis is to be undertaken by reference to the judgment of the primary judge.

7. For the reasons outlined below, none of the conditions is satisfied with respect to the judgment sought to be challenged on this application.

Reasons for determination

(a)   general considerations

8. The first step is to note that the subject matter of the proposed appeal is a judgment with respect to costs only which are in the discretion of the Court. Leave is therefore required under s 101(2)(c) of the Supreme Court Act 1970 (NSW). Because this is not a final judgment, the monetary limit in s 101(2)(r) (a matter involving an amount to the value of $100,000 or more) is not engaged; nevertheless, the fact that the highest estimate of costs in this matter is in the order of $54,000 demonstrates that the amount in issue is well below the ceiling applicable to final judgments. Further, this is not a case where the amount in issue is significantly more than the likely costs incurred in the hearing before the primary judge and the proposed appeal. The Court will be reluctant to grant leave to appeal in such a case.

9. Secondly, discretionary judgments as to costs are analogous to matters of practice and procedure where the strictures identified by Jordan CJ in In Re the Will of FB Gilbert [2] are engaged and, for that further reason, the Court will generally maintain a tight rein on the grant of leave.

   2. (1946) 46 SR(NSW) 318 at 323.

10. Thirdly, it is appropriate to explain why it is important that the focus of the application be on the judgment of the primary judge and not on the reasons given by the magistrate. It is notorious that ex tempore reasons in such cases may not be recorded, may be inaccurately transcribed, may be open to interpretation as to what was said or meant, and may not be comprehensive. Reasons are often provided against a background of submissions and discussion between the court and the parties which will allow the parties more readily to understand abbreviated explanations. These circumstances arose in the present case. It follows that the primary judge will need to reach conclusions as to what precisely was said or meant, which may involve an impressionistic assessment. Unless the judge clearly erred in his assessment of the reasons given by the magistrate (which was not suggested), this Court would not re-enter on that exercise.

11. Further, error for the purposes of an appeal will turn in part on how the matter was argued before the primary judge. Generally, leave will not be granted to argue a case which was not pursued below. The fact that the submissions for the applicant failed to engage at any point with the findings of the primary judge would be sufficient reason of itself to refuse leave to appeal. The appropriate inference is that, in the absence of challenge, the primary judge correctly identified the issues raised for consideration before him and disposed of those matters without appealable error.

(b)   specific grounds

12. There are problems with each of the proposed grounds with respect to the application of s 214(1)(b). As the primary judge correctly noted, s 214(1) is in the form of a prohibition against an award of costs, subject to a qualified exception. The qualification turns on the state of satisfaction of the magistrate. [3] That means it is not for the reviewing court to determine whether one or more of the preconditions was satisfied; rather the reviewing court can only inquire as to whether the magistrate, in failing to be so satisfied, failed to ask the right question or misconceived the legal limits of the precondition. As explained by Glass JA in Azzopardi v Tasman UEB Industries Ltd,[4] there are limited circumstances in which an error of law arises where the court fails to be satisfied of a matter as to which the applicant bears the burden of proof. That is so in this case.

    3.    Hallaby at [66]-[67].

    4. (1985) 4 NSWLR 139 at 156; see also Li v Attorney General of NSW [2019] NSWCA 95 at [24].

13. As the primary judge correctly noted, s 214(1)(b) specifies three distinct matters, namely that the proceedings were, (i) instituted without reasonable cause; (ii) initiated in bad faith, or (iii) conducted by the prosecutor in an improper manner. [5] The proposed grounds are untenable for four reasons. First, the summons before the primary judge is not before this Court, although it would form part of the record. (Its absence may be explained by the statement of the primary judge that the relief sought and the grounds in the summons were abandoned. [6] ) However, the grounds relied upon were set out by the primary judge [7] and there is no complaint that he misapprehended the scope of the issues before him. Neither the grounds nor the arguments presented to the primary judge, set out by him at [59], addressed a question as to whether the magistrate failed to consider whether the prosecutor “honestly believed” that the proceedings had a real prospect of success. Secondly, the requirement that the prosecutor “honestly believed” that the proceedings had reasonable prospects of success was derived from the elements of the tort of malicious prosecution, not from the test of initiation without reasonable cause or in bad faith, under s 214(1)(b). The primary judge understood the correct approach, set out by him at [57]. The primary judge dealt with the submissions made to him in this respect at some length from [53]-[69] and [71], in a manner which demonstrates no error upon which the applicant can rely. Nor did the applicant seek to identify such error.

    5. Hallaby at [70].

    6. Hallaby at [41].

    7.    Hallaby at [43], [44].

14. Thirdly, the grounds in relation to s 214(1)(b) are imprecise as to the limb of s 214(1)(b) which is engaged in each respect. For example, it is not clear that the magistrate addressed the onus and standard of proof, as opposed to determining it incorrectly (proposed ground 2), but there is no doubt that the applicant needed to satisfy the magistrate as to fulfilment of one or other of the three limbs in par (b). Fourthly, it could not profitably be argued that the magistrate was in error in failing to be satisfied that the prosecution was initiated without reasonable cause because there was no evidence: the ground is incoherent. The magistrate was not satisfied that the proceedings were initiated without reasonable cause; that involved a failure on the part of the applicant to establish the negative. There is no “no evidence” ground available.

15. As explained by the primary judge, the applicant’s assertion appears to be that because the officer who initiated the proceedings knew the objective facts, which were ultimately accepted by the magistrate, he also ought to have known that this would lead to the rejection of all the police evidence under s 138 of the Evidence Act 1995 (NSW) and that, therefore, he knew or ought to have known there was no evidence to support the charges.

16. In this respect it is convenient to note what the magistrate said with respect to initiation without reasonable cause. In his reasons of 13 April 2018 the following appear:

“Given the evidence of the three police who were present, and it seems to be the proceedings were initiated properly, there was evidence capable of a conviction.

There is no basis for concluding that the prosecution should have [anticipated] all the evidence would be rejected based on the impropriety argument and the adverse exercise of discretion. It requires a deal of hindsight to conclude there was no reasonable cause to commence the proceedings.”

17. No error is revealed by that statement.

18. The fourth ground dealt with the scope of the phrase “other exceptional circumstances” in par (d). Before the primary judge, the applicant’s case appears to have been contingent upon the proposition that the magistrate failed to identify who had initiated the proceedings. [8] The primary judge had earlier pointed out in relation to the submissions with respect to par (b) that the magistrate had before him the court attendance notice and knew precisely who had initiated the proceedings. [9] (There was no challenge to that finding.) In relation to par (d), the judge stated:

“[73]   Once it is concluded that the proceedings were not initiated without reasonable cause, there are no ‘other’ circumstances remaining to be considered. While the term ‘prosecutor’ is defined in s 3 to include a person who institutes or is responsible for the conduct of a prosecution, it by no means follows that conduct which occurred prior to the institution of the prosecution by the person who institutes, or is responsible for the conduct of, the prosecution, can be characterised as ‘conduct of the proceedings’ by that person.”

8. Hallaby at [72].

9. Hallaby at [63].

19. The applicant’s submissions in this Court may have (indirectly) taken issue with this reasoning by seeking to read the words “relating to the conduct of the proceedings by the prosecutor” as being sufficiently broad to include conduct which preceded the initiation of the proceedings, namely the conduct which was the subject matter of the offence. However, the primary judge’s point was that, however broadly one reads par (d), it was the conduct constituting the offence which was the sole basis for asserting that the proceedings were initiated without reasonable cause. It followed that this did not involve “other” circumstances, but merely the same circumstances relied upon for a different purpose. In other words, the applicant seeks to read par (d) as if it read “because it is otherwise just and reasonable to award professional costs.” However, one cannot read a statutory provision by excluding from consideration express words of limitation. That submission, if not patently untenable, is at least not sufficiently arguable to permit a grant of leave to appeal.

20. For these reasons, the application for leave to appeal must be rejected. Accordingly, the Court makes the following orders:

1. Direct that the prosecutor/informant be identified as the first respondent.

2. Dismiss the summons seeking leave to appeal filed on 9 October 2019.

3. Order that the applicant pay the costs of the first respondent (Senior Constable Harris) and, on a submitting basis, the costs of the Local Court of New South Wales.

**********

Endnotes

Decision last updated: 17 February 2020