Manly Council v Leech (No 2)

[2015] NSWLEC 204

Land and Environment Court

New South Wales

Medium Neutral Citation:	Manly Council v Leech (No 2) [2015] NSWLEC 204
Hearing dates:	17, 18 Decmeber 2015
Date of orders:	23 December 2015
Decision date:	23 December 2015
Jurisdiction:	Class 5
Before:	Biscoe J
Decision:	The defendant’s notice of motion for costs filed on 1 October 2015 is dismissed.
Catchwords:	COSTS – defendant acquitted of a criminal charge seeks costs against prosecutor – whether proceedings initiated without reasonable cause or conducted in an improper manner – whether investigation conducted in unreasonable or improper manner or unreasonable failure to investigate – obligation of a prosecutor to call all available witnesses unless there is some good reason not to do so.
Legislation Cited:	Criminal Procedure Act 1986 ss 257C, 257D(1)
Cases Cited:	Beatson v R [2015] NSWCCA 17 Canceri v Taylor [1994] 123 ALR 667 Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42, 303 ALR 42 Kanan v Australia Post and Telecommunications Commission (1992) 43 IR 257 Lismore City Council v Ihalainen (No 3) [2015] NSWLEC 53 Manly Council v Horizon Habitats Pty Ltd [2015] NSWLEC 15 Manly Council v Leech [2015] NSWLEC 149 Pittwater Council v A1 Professional Tree Recycling Pty Ltd (No 3) [2009] NSWLEC 21, 165 LGERA 6 R v Apostilides [1984] HCA 38, 154 CLR 563 R v Kneebone [1999] NSWCCA 279, 47 NSWLR 450 R v Pavy [1997] 98 A Crim R 396 Wehbe v Kogarah City Council [2015] NSWLEC 170
Category:	Costs
Parties:	Manly Council (Prosecutor) Denis John Leech (Defendant)
Representation:	COUNSEL: A Djemal and J Smith (Prosecutor) A Pickles SC (Defendant)   SOLICITORS: Maddocks (Prosecutor) Wood Marshall Williams (Defendant)
File Number(s):	50837/14

Judgment

1. This is a motion by the defendant, Mr Denis Leech, following his acquittal on an unlawful development charge, that the prosecutor, Manly Council, pay his costs of the proceedings. In oral submissions the defendant contended in the alternative that the prosecutor should pay part of his costs.

STATUTORY COSTS PROVISIONS

2. Where criminal proceedings are dismissed or withdrawn the Court has no power to order the prosecutor to pay the accused’s costs other than in the exceptional circumstances listed in s 257D(1) of the Criminal Procedure Act 1986. The defendant relies upon s 257D(1)(a), (b) (in part) and (c). Subsections (a) and (c) are related in that they are both concerned with the investigation. Sections 257C and, to the extent it is relied upon by the defendant, 257D(1) provide:

257C When professional costs may be awarded to accused person

(1)   A court may at the end of proceedings under this Part 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.

(2)   The amount of professional costs is to be such professional costs as the court specifies or, if the order directs, as may be determined under section 257G.

(3)   Without limiting the operation of subsection (1), a court may order that the prosecutor…