JD v Director of Public Prosecutions

[1999] NSWSC 878

Reported Decision: [1999] 107 A Crim R 296

New South Wales

Supreme Court

CITATION:	JD v DPP [1999] NSWSC 878
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	11794 of 1998
HEARING DATE(S):	09/11/98
JUDGMENT DATE:	2 September 1999
PARTIES :	JD (plaintiff) Director of Public Prosecutions (1st defendant) Mr J Williams, Magistrate (2nd defendant) Chief Magistrate of the Local Court of NSW (3rd defendant)
JUDGMENT OF:	Hidden J at 1

LOWER COURT JURISDICTION:	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Mr J Williams

COUNSEL :	G Walsh (solicitor) (plaintiff) P Lakatos and W Langley (1st defendant)
SOLICITORS:	Greg Walsh & Co (plaintiff) Solicitor for Public Prosecutions (1st defendant) Crown Solicitor (3rd defendant)
CATCHWORDS:	Criminal Law - committal proceedings - order that information be withdrawn and dismissed - misapprehension by magistrate that defendant consented - whether magistrate functus officio - whether defendant could be discharged - power to award costs
ACTS CITED:	Justices Act 1902 Crimes Act 1900 Criminal Procedure Act 1986
CASES CITED:	R v Essex Justices, Ex parte Final [1962] 3 All ER 924 Ex parte Kelly; Re Teece (1966) 85 WN(NSW) 151 Thomas v Bell (1989) 42 ACrim R 318 Reg v Phipps: Ex parte Alton [1964] 2 QB 420 Dargin v Simpson (Studdert J, SC of NSW, unreported, 24 September 1990: affirmed C of A unreported, 7 February 1992) Lay v Cleary (James J, SC of NSW, unreported 23 February 1993)
DECISION:	Magistrate had power to award costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Thursday, 2 September 1999

11794 of 1998 “JD”- v - Director of Public Prosecutions

Reasons for judgment

1 HIS HONOUR : In February 1998 the plaintiff was charged with indecent assault upon his six-year-old daughter and committing an act of indecency with her. It is because of the nature of the charges, and his relationship to the complainant, that I have already ordered that his name not be published. On 6 July 1998 committal proceedings in respect of those charges were listed for hearing, but were terminated in the plaintiff’s favour without any evidence being presented. However, the learned magistrate declined to award him costs, having considered the evidence against him in the light of the restrictions upon an order for costs imposed by s41A(2A) of the Justices Act 1902. In this Court, the plaintiff seeks declaratory and other relief in relation to that order.

2     It is necessary to examine the manner in which the proceedings were terminated, because counsel for the Director of Public Prosecutions in this Court submitted that the magistrate had no power to make an order for costs in any event. When the magistrate called the matter on 6 July 1998, the solicitor then appearing for the Director announced that his instructions were to seek leave to withdraw the informations. His Worship asked senior counsel then appearing for the plaintiff (who did not appear in this Court) if he objected to that course. The transcript records that counsel replied, “I’ve no objection to the charges - to the defendant being discharged in each case if your Worship pleases.” His Worship said that he would note that the matters were “withdrawn and dismissed”. Senior counsel applied for costs, to which the solicitor for the Director responded with the argument advanced in this Court. He submitted that there was no power to award costs as the informations had been dismissed following upon their being withdrawn. As he put it, “It wasn’t a question of not offering evidence.”

3 The matter was stood down to later in the day for further argument, but for some reason that part of the proceedings was not recorded and a transcript of it is not available. However, I have the benefit of evidence on affidavit about what occurred. A number of documents were tendered for the purpose of the argument, including material from the police brief of evidence. The tape recording of the morning’s proceedings was played and it was noted that, when asked if he objected to the withdrawal of the informations, senior counsel for the plaintiff had said that he did not object to his client being discharged. It seems that his Worship interpreted that to mean that he agreed to the plaintiff being discharged under s41 of the Justices Act on the basis that the prosecution offered no evidence. He announced that he would rescind his earlier order that the informations be dismissed, having been withdrawn. The solicitor for the Director then offered no evidence and his Worship ordered that the plaintiff be discharged. On the charge coversheet he crossed out his original notation, “withdrawn, dismissed”, and substituted the words “Def. discharged”.

4     His Worship gave judgment the following day, and at the beginning of his reasons he noted that there had been “some initial confusion as to the status” of the proceedings but that, upon listening to the tape recording of the exchange the previous morning, the scope of senior counsel’s agreement about the disposition of the matter was “obvious”. That being so, his Worship went on, the solicitor for the Director had “quite properly” offered no evidence and the plaintiff had been discharged. In paragraph two of these reasons I have summarised the transcript of what occurred on the morning of 6 July, and I must say that the position taken by senior counsel for the plaintiff at that time is not entirely clear. Certainly, his Worship could be forgiven for having understood that there was consent to the withdrawal of the informations. However that may be, there was a misunderstanding which, it seems, was resolved in the afternoon.

5     Nevertheless, the solicitor for the Director offered no evidence only after his Worship announced that he intended to rescind his earlier order. The solicitor submitted that his Worship was functus officio when he made that order and marked the papers accordingly. The same submission was developed by counsel for the Director in this Court, who argued that that was the case even if his Worship had allowed the informations to be withdrawn under a misapprehension that senior counsel for the plaintiff consented to that course. That being so, his Worship had no power later to change the order disposing of the proceedings, or to make an order for costs.

6     Reliance was placed upon authority that a magistrate is functus officio once he or she has announced conviction and sentence or has dismissed an information unless, for one reason or another, the proceedings were a nullity: R v Essex Justices, Ex parte Final [1962] 3 All ER 924; Ex parte Kelly; Re Teece (1966) 85 WN(NSW) 151 at 158; Thomas v Bell (1989) 42 ACrim R 318 at 320-1. Proceedings might be a nullity if, for example, a defendant were denied natural justice. Ex parte Kelly; Re Teece was such a case. Other cases were summarised by Yeldham J in the passage of his judgment in Thomas v Bell to which I have referred. Counsel for the Director submitted that there was no basis upon which the present proceedings could be held to have been a nullity, so that the magistrate’s order permitting the informations to be withdrawn and dismissing them was valid and final.

7 It is necessary at this stage to determine the nature of the proceedings before the magistrate. It is clear that they were committal proceedings, not a summary hearing. The charges which the plaintiff faced are included in Table 1 to Part 9A of the Criminal Procedure Act 1986. By s33C(1) of that Act they would have been dealt with summarily in the Local Court unless the Director or the plaintiff had elected to have them dealt with on indictment. While there is no evidence before me directly on the point, such an election must have been made by at least one of them. It was common ground before me that the charges were listed for committal proceedings and it was upon that basis that his Worship approached the question of costs.

8     The position is materially different from that which Studdert J considered in Dargin v Simpson (unreported, 24 September 1990: affirmed by the Court of Appeal, unreported, 7 February 1992). In that case his Honour was dealing with the regime under ss495 and 497 of the Crimes Act 1900 whereby certain offences were to be dealt with summarily unless the magistrate declined to do so. There, the question whether a charge should be dealt with on indictment was a matter for the discretion of the court, not the election of the parties, so that Studdert J concluded (at p12) that “proceedings under s495 are not to be characterised ab initio as committal proceedings…”.

9 The power to award costs of committal proceedings in favour of a defendant derives from s41A of the Justices Act . For present purposes, it is sufficient to say that that power arises when a magistrate makes “an order discharging a defendant as to the information then under inquiry”: s41A(1)(a). Section 41(2) provides that a magistrate must discharge the defendant if he or she is not of the opinion that “the evidence is capable of satisfying a jury beyond reasonable doubt that the defendant has committed an indictable offence…”. Alternatively, s41(6) provides that a magistrate must discharge the defendant if he or she is not of the opinion that “there is a reasonable prospect that a jury would convict the defendant of an indictable offence…”. In either event, the defendant is discharged “as to the information then under inquiry”.

10     If the magistrate were functus officio when he allowed the informations to be withdrawn, there is no doubt that he had no power to award costs. In Reg v Phipps: Ex parte Alton [1964] 2 QB 420, a magistrate had granted leave to an informant to withdraw an information, there being no objection by counsel for the defendant. The matter had been listed for committal proceedings. The question for the Court of Appeal was whether the magistrate had power to award costs to the defendant under either of two statutory provisions conferring such a power upon “examining justices” who had determined “not to commit the accused for trial”. The Court held that the magistrate did not have that power as the information had been withdrawn. As Lord Parker CJ put it (at 426), “I do not think that on March 7, 1962, when the case was called on, the time ever came when the magistrate began to inquire into any offence”. His Lordship added (at 427), “…an application for withdrawal and the consent to the withdrawal is in no sense a part of an inquiry if it be an indictable offence or a summary trial if it be a summary offence”. His Lordship went on (at 428) to observe that a court has a discretion whether to allow an information to be withdrawn, one of the factors relevant to the exercise of that discretion being the defendant’s desire to recover costs.

11     The Court of Appeal’s decision has been applied in this Court: Lay v Cleary (James J, unreported 23 February 1993) at pp17-19. James J held that a magistrate who permits an information to be withdrawn cannot order the defendant to be discharged under s41 of the Justices Act , as he does not have the information “under inquiry” within the meaning of subs (2) and (6) of that section. Accordingly, there is no power to order costs under s41A. His Honour also concluded, after an examination of authority in this country and in England, that a magistrate who allows an information to be withdrawn in summary proceedings has no power to award costs to the defendant under s81 of the Act. Clearly, the position is otherwise when the prosecution offers no evidence, whether in committal proceedings or at a summary hearing. In that event, a defendant in a summary hearing is entitled to an order dismissing the information under s80 and may apply for costs under s81: Lay v Cleary at pp31-2. Equally, a defendant in committal proceedings is entitled to discharge under s41 and to seek costs under s41A. So much was recognised by Lord Parker CJ in relation to the English procedure in Phipps at 428.

12     The crucial question remains, then, whether the magistrate in the present case was functus officio when he recorded that the informations had been withdrawn and dismissed. This is not an easy matter to resolve. It is true that, when his Worship expressed his intention to deal with the matter in that way, senior counsel for the plaintiff did not protest that that was not the course to which he had consented. Nevertheless, he had said that he had no objection to the defendant being “discharged” and, no doubt, he was mindful of the significance of that expression in the relevant provisions of the Act. Moreover, he immediately announced his intention to apply for costs and I cannot believe that counsel of his great experience was unaware of the fact that the magistrate had no power to make such an order if the informations were withdrawn. As I have said, there was a misunderstanding and, in the light of what occurred when the matter was resumed in the afternoon, it is clear that his Worship would not have allowed the informations to be withdrawn if he had understood that that course was objected to.

13     Was the magistrate’s earlier order, then, a nullity? Unsurprisingly, I was not referred to any case directly on point. What concerns me is that his Worship made that order under a misapprehension that it was consented to. No doubt, if he had not been under that misapprehension, he would have invited senior counsel for the plaintiff to put submissions in opposition to the informations being withdrawn. In the light of what happened later, it is likely that he would then have refused leave for them to be withdrawn and have required the solicitor for the Director to elect whether or not to offer evidence. The situation is very different from that with which the Court of Appeal was dealing in Ex parte Kelly; Re Teece (supra). Nevertheless, there is a sense in which it could be said that the plaintiff was denied natural justice at that stage, albeit in circumstances in which no fault could be imputed to the learned magistrate.

14     Before me, the parties agreed that I should determine this question before hearing argument about the exercise of his Worship’s discretion in refusing the order for costs. In the circumstances, I am not prepared to hold that the magistrate was functus officio when he recorded that the informations had been withdrawn and dismissed and that, accordingly, his later order that the plaintiff be discharged is of no effect. The proceedings in this Court must be determined on their merits. While I have the benefit of written submissions from the parties, they should have the opportunity to develop those in oral argument.
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Last Modified: 09/06/1999