Hatzopoulos v The Queen

[2016] NSWDC 249

District Court

New South Wales

Medium Neutral Citation:	Hatzopoulos v R [2016] NSWDC 249
Hearing dates:	2 September 2016
Date of orders:	12 October 2016
Decision date:	12 October 2016
Jurisdiction:	Criminal
Before:	Wass SC DCJ
Decision:	(1) That the prosecutor pay the appellant’s costs of the application in the local court and the hearing of the appeal, including the hearing of the application for costs under s.70 of the Crimes (Appeal and Review) Act 2001. (2) Make an order for costs in the amount of $21,561.
Catchwords:	Costs – apprehended domestic violence order - appeal
Legislation Cited:	Crimes (Appeal and Review) Act 2001 NSW s. 70(1)(c), s.70(1)(d)
Category:	Principal judgment
Parties:	Tas Hatzopoulos (Appellant) Director of Public Prosecutions (Crown)
Representation:	Counsel: Mr Brewer (Appellant) Mr Karpin (Crown)   Solicitors: Mr B Pigott (Appellant) Director of Public Prosecutions (Crown)
File Number(s):	2015/168023
Publication restriction:	None

Judgment

1. On the basis of the distressed and anxious demeanour of the complainant, the fears she expressed, together with a photograph and “other information” (not disclosed by the Constable Nina Blundell in the statement), the Constable formed the view that she had reasonable grounds to apply for an apprehended violence order against the appellant. The matter was heard and determined on 26 October 2015, by Pierce LCM, who made an apprehended violence order.

2. On 27 April 2016, I allowed the appeal from the decision of the learned magistrate.

3. The appellant has made an application for costs on the following two bases:

1. That the application for the AVO contained a misleading statement which said: “PINOP has previously reported incidents of physical violence and threats in 2011 and 2014. On both occasions charges were laid and avo’s applied for however no conviction was ever recorded.”; and

2. That the selection of text messages presented to police by the complainant was misleading and the presentation of them to the Court by the prosecutor misled the court.

4. Both the Crown and Mr Brewer, who appears for the appellant, agree that s.70 of the Crimes (Appeal and Review) Act 2001 (“the Act”) gives me jurisdiction to award costs against the public prosecutor in limited circumstances.

5. S.70 provides relevantly that I am not to award costs in favour of the appellant unless I am satisfied that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter that the prosecutor ought reasonably have been aware of and that suggested that the appellant might not be guilty or that, for any other reason the proceedings should not have been brought. Or that because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant: s. 70(1)(c) or (d) of the Act.

The statements made in the application for the ADVO

6. In this case Constable Blundell was tasked with deciding whether or not to apply for the ADVO. The police prosecutor, in this case Sergeant Wade, later prosecuted it.

7. No doubt often statements are made by complainants or witnesses, in the course of applications for ADVOs, that police are unable to verify and have to take the word of the complainant or witness at face value.

8. Indeed, often the purposes of the domestic violence legislation are only met by being able to accept complainants of domestic violence at their word, both as to the circumstances of the complaint and as to their fears for their safety.

9. However, one such matter that can be verified by police is the history of interaction with either the police or the courts of either of the parties.

10. In this case, the statement in the application relating to charges being laid against the appellant on the two occasions that the complainant was said to have complained, was demonstrably (although I accept not deliberately so on the part of the Constable) false. Indeed on the second occasion of complaint in 2014, no charge was laid. Second, whilst it is true that no conviction was recorded in respect of the first complaint, I also find that in the circumstances, it was demonstrably (although again not deliberately) misleading. What in fact occurred was that a charge of common assault arising out of the 2011 complaint was dismissed. A notation on the application for the ADVO, that records that “no conviction was recorded” implies, or at least can imply, that the charge was found proven but that the matter was dealt with in accordance with s.10 Crimes (Sentencing Procedure) Act.

11. This kind of loose language has no place in an application for an apprehended violence order. As Constable Blundell correctly pointed out in her statement at [10] it is on the basis of such information that police form views about whether or not they have reasonable grounds to apply for an apprehended violence order. Obviously such evidence potentially have serious consequences.

12. It is obviously relevant to know the criminal history of a defendant to an ADVO action. There is quite a difference between a person against whom an ADVO is being taken out, who has committed an assault, found proven, on the complainant in the past and one in respect of whom the charges have been dismissed. Further it is relevant to a complainant’s credibility whether or not she has made complaints in the past and whether or not those complaints have been made out.

13. Whilst I do not find that the constable acted deliberately in putting false and/or misleading material in the application on this issue, I find that her actions were unreasonable, given that she had access to, and indeed did access the COPS computer system. It is not clear what the constable meant in her statement at [9] that “much of the information supplied to me regarding previous incidents and person seem to correspond with incidents that had previously been recorded”. It appears supportive of the application but at the same time equivocal, but no explanation is given for the equivocation. However, what is clear is that the information in the application was not accurate, was at least potentially misleading and in some respects was not correct.

The Text Messages

14. I do not need to re recite the findings that I made in respect of the text messages in detail, other than to record the following:

15. The Crown conceded at the hearing of the appeal that it was in the interests of justice that the fresh evidence be given as it put into evidence text messages, which were not before the Learned Magistrate, and which without them, a misleading impression of the relevant texts would be gained.

16. It was accepted by both parties that the need for the orders was founded on the allegation that the appellant had sought to intimidate the complainant by threats on 6 June and by continued abusive text messages. Corroboration for the alleged threats was found by the learned magistrate to be in the text messages and to put a characterization on the relationship that painted the appellant as the intimidator.

17. However, the appellant put before me at the hearing of the appeal the comparison between the text messages as they existed and those that were tendered in court. A review of the comparison makes it readily and easily apparent that, quite contrary to the finding by his Honour, that the text messages supported the complainant and showed what his Honour found to be “nothing more than courteously expressed” language on her part, and intemperate abuse on the part of the appellant; they showed that far from the complainant being abused without cause, that it was often in fact a mirror response by the appellant, to abuse levelled by the complainant, and that the complainant was also abusive.

18. What is most concerning of course, is the clear steps taken by the complainant to present only one side of the story in her application before the Local Court in order to paint the appellant in the most unfavourable light possible, a light which was not born out when a full copy of the text messages is reviewed. And unfortunately a full copy of which was not given to police and was thus not made available to the Learned Magistrate.

19. The crown conceded before me that the relationship was one where intemperate language was used back and forward and that this neutralized the nature of the texts. That concession in my view was quite properly made and that only one which could be made on the basis of the review of the whole of the texts.

20. In that sense the police prosecutor tendered texts which were misleading.

21. It is true that the police may have not had access to the text messages and that from time to time it is simply not possible to test the account given by a complainant. However, it is also true that in these circumstances the text messages themselves make it readily apparent that often what was being said was in response to something from the complainant, that in some circumstances part of the message exchange had not been included and that the text messages were not being presented in any context.

22. The Crown has not sought to place any evidence before me that the OIC or the police prosecutor attempted to ensure that the Court was not mislead by the messages. I infer in those circumstances that the OIC and the police prosecutor simply did not enquire as to the messages from the complainant or the context in which the messages were sent by the appellant. In find this to be unreasonable in all the circumstances.

Police Prosecutor and Informant Obligations

23. The fact that a police officer agrees to be an informant in an ADVO application, as opposed to the matter proceeding, as a private application interparty, is a significant matter. It carries with it all of the imprimatur that the police currently carry where a police officer, apprised of relevant materials, is of the view that there are reasonable grounds to apply for an ADVO and makes that known to the court. The corollary to that privilege is that every police officer that makes that view known and supports an application, has an obligation to take reasonable steps to ensure that the Court is not misled. That obligation was not carried out in this case, either in the content of the application or the garnering of the text messages.

24. Similarly, and whilst most police prosecutors are not legal practitioners and are therefore not, formally bound by the solicitors or barristers prosecution rules, they are acting as officers of the Court and have an obligation not to mislead the court. The rules on this issue, that bind all legal practitioner prosecutors, is instructive. As the rules have been devised to ensure a fair trial, the fact that a police officer does not hold a law degree is no justification for the non-observance of them.

25. The solicitor’s prosecutor’s rules (Rule 29) relevantly provide as follows:

29.1 A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.

29.5 A prosecutor must disclose to the opponent as soon as practicable all material available to the prosecutor or of which the prosecutor becomes aware which could constitute evidence relevant to the guilt or innocence of the accused other than material subject to statutory immunity, unless the prosecutor believes on reasonable grounds that such disclosure, or full disclosure, would seriously threaten the integrity of the administration of justice in those proceedings or the safety of any person.

26. An observance of either of those rules would have ensured that if the matter was to proceed at all, then all of the relevant text messages would have been before the Court. It is true regarding disclosure that the messages were in the possession of the appellant. However, it is not for any defendant to a matter such as this to carry an obligation that is squarely placed on the prosecutor. Indeed, given the way the text messages arose in the course of the hearing before the Learned Magistrate, the appellant was entitled to assume that they were of little moment. As it turned out the Learned Magistrate relied heavily on them without notice to the appellant.

27. A police prosecutor, in prosecuting any application before the court, is not a mere mouthpiece for either the police force or any complainant. Where they take on cases of ADVO on behalf of complainants, they also have obligations to the Court and to their opponent to ensure that the case is being fairly presented and that the Court is not mislead. The obligation to the Court is paramount. That obligation was not carried out in this case.

28. In those circumstances I find that circumstances exist that make it just and reasonable for costs to be awarded against the prosecutor in favour of the appellant on both bases, that is due to:

1. Being satisfied that the prosecutor unreasonably failed to investigate (or to investigate properly) either the appellant’s criminal history, or the text messages about which he ought reasonably have been aware. Those matters, particularly the text messages, suggested that the appellant might not be guilty.

2. Furthermore I find exceptional circumstances relating to the conduct of the proceedings by the prosecutor, in the failure to seek to examine the texts and in the casual statements made in the application, such that it is just and reasonable to compensate the appellate by an award of costs in his favour

ORDERS

1. That the prosecutor pay the appellant’s costs of the application in the Local Court and the hearing of the appeal, including the hearing of the application for costs under s.70 of the Crimes (Appeal and Review) Act 2001.

2. Make an order for costs in the amount of $21,561.

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Decision last updated: 15 November 2016