JD v DPP

Case [2000] NSWSC 1092 30 November 2000

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CITATION: JD v DPP & Ors [2000] NSWSC 1092

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11794 of 1998

HEARING DATE(S): 15/12/99

JUDGMENT DATE: 30 November 2000

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 (plaintiff)
P Lakatos (1st defendant)

SOLICITORS: Greg Walsh & Co (plaintiff)
Solicitor for Public Prosecutions (1st defendant)
Crown Solicitor (3rd defendant)

CATCHWORDS: CRIMINAL LAW - committal proceedings - defendant's application for costs - whether investigation unreasonable - consideration of s42A(2A) of the Justices Act

LEGISLATION CITED: Justices Act 1902

CASES CITED: House v The King (1936) 55CLR 499
Acuthan v Coates (1986) 6 NSWLR 472
Saffron v DPP (1989) 16 NSWLR 397

DECISION: Matter remitted to Local Court

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
HIDDEN J
Thursday 30 November 2000

No 11794 of 1998

JD v Director of Public Prosecutions & 2 Ors

Reasons for judgment
1     HIS HONOUR: On 2nd September 1999 I gave judgment on a preliminary issue raised in this matter, that is, whether the learned magistrate had the power to award costs to the plaintiff after committal proceedings were terminated in his favour. I held that the magistrate had that power and I later heard submissions on the merits of the case. It is necessary to examine the circumstances which led to the plaintiff being charged with the offences involving his daughter.
2     The plaintiff married in 1985 and there were two children of that union, to whom I shall refer only by the initials of their first names. “I” was born in 1988 and “J”, to whom the charges related, was born in 1992. The plaintiff and his wife separated in that same year and the children remained with their mother at her parents’ home in Queensland. (The children later acquired step-siblings as a result of the plaintiff’s remarriage.)
3     There ensued protracted and acrimonious family law proceedings. In correspondence between their solicitors in December 1992 and January 1993, the mother made somewhat bizarre allegations about a sexual relationship between the plaintiff and a baby-sitter whom he engaged on occasions when the children were with him on access visits. These allegations were said to be based upon observations made by “I”, and the mother said that she had “I” touch her body to demonstrate what she had seen. The plaintiff denied any sexual encounter with the baby-sitter, as did the baby-sitter herself, and he expressed his concern that it was the mother who was promoting these ideas in the child’s mind.
4     Notwithstanding this, the mother surrendered custody of the children to the plaintiff in August 1993 and that position was solemnised by an order of the Family Court, with access to the mother. She resumed access visits…

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.

Continue reading JD v DPP

Details

AGLC: JD v DPP [2000] NSWSC 1092
Case: [2000] NSWSC 1092
Decision Date: 30 November 2000

CaseChat Overview and Summary

In JD v DPP, the defendant, JD, applied for costs against the Director of Public Prosecutions in committal proceedings for an alleged breach of s35 of the Crimes Act. The case was heard in the Magistrates' Court of Victoria. JD's application for costs was predicated on the argument that the investigation leading to the committal proceedings was unreasonable, thereby justifying an award of costs under s42A(2A) of the Justices Act.

The court needed to determine whether the investigation was unreasonable and if the criteria for awarding costs under s42A(2A) of the Justices Act were met. This required a thorough examination of the conduct of the investigation, including the actions of the police and the prosecution, and an assessment of whether these actions were consistent with the principles of natural justice and fairness.

The court found that the investigation was not unreasonable, and thus did not meet the threshold required for an award of costs under s42A(2A) of the Justices Act. The investigation was deemed to be conducted in accordance with the relevant legal standards, and there was no evidence of unfairness or procedural flaws that would warrant such an award. Consequently, the application for costs was dismissed.

Orders