McNamara v Fenner

[2017] NSWSC 1746

Supreme Court

New South Wales

Medium Neutral Citation:	McNamara v Fenner [2017] NSWSC 1746
Hearing dates:	4 December 2017
Date of orders:	15 December 2017
Decision date:	15 December 2017
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1) Refuse leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001. (2)   Amended summons otherwise dismissed with costs.
Catchwords:	APPEAL – appeal from local court – where prosecutor withdrew all charges on first day of hearing – where plaintiff instead sought dismissal of charges and order for costs – where Magistrate refused to award costs following automatic dismissal – whether Magistrate’s orders were interlocutory or final – whether judicial review is available – whether Magistrate made an error of law or jurisdictional error
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Stock Diseases Regulation 2009 Supreme Court Act 1970
Cases Cited:	Bienstein v Bienstein [2003] HCA 7 Canceri v Taylor (1994) 123 ALR 667 CDW v LVE [2015] WASCA 247 Coles Supermarkets Australia v Antony Townsden [2009] NSWSC 1117 DPP v Shirvanian (1998) 44 NSWLR 129 Halpin v Department of Gaming and Racing [2007] NSWSC 815 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 O’Brien v Hutchinson [2012] NSWSC 429 Question of Law Reserved on Acquittal (3 of 1995) Michael Charles Baenisch (1996) 88 A Crim R 1 R v Feeney [2012] ACTSC 153 RP v DPP [2015] NSWSC 248
Category:	Principal judgment
Parties:	Michael McNamara (Plaintiff) Detective Rodney Fenner (Defendant)
Representation:	Counsel: R Thomas (Plaintiff) C Melis (Defendant)   Solicitors: A R Conolly & Company (Plaintiff) Henry David York (Defendant)
File Number(s):	2017/177849
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By his amended summons filed on 4 July 2017, Michael McNamara seeks leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 from the decision of Magistrate Michael O’Brien in the Local Court delivered on 18 May 2017. In the alternative, Mr McNamara seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970.

2. Mr McNamara had been charged with 282 breaches of the Stock Diseases Regulation 2009 with respect to offences allegedly committed between January 2014 and January 2016. On the first day of what was to be a defended three day hearing of the charges at Inverell, the prosecutor sought to withdraw them all pursuant to s 208 of the Criminal Procedure Act 1986. Mr McNamara opposed that course and instead sought a dismissal of the charges pursuant to s 205 of that Act, together with a certificate pursuant to s 205(2) and an order for costs. His Honour permitted the prosecution to withdraw the charges pursuant to s 208, refused to make any alternative order pursuant to s 205 and declined to order the prosecution to pay Mr McNamara’s costs.

3. Accordingly, Mr McNamara now seeks an order setting aside his Honour’s decision and asks that the charges be dismissed pursuant to s 205. He also seeks an order that the prosecutor pay his costs thrown away in those circumstances. Central to each avenue of appeal or review is his Honour’s refusal to award costs to Mr McNamara following the automatic dismissal of the charges under s 208 of the Criminal Procedure Act.

4. Mr McNamara’s amended summons raises at least four central issues for determination in this Court:

1. Is his Honour’s decision interlocutory for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act?

2. If it is, should leave be granted?

3. Is judicial review available under s 69 of the Supreme Court Act?

4. If it is, did his Honour make an error of law or a jurisdictional error?

Background

5. Mr McNamara was served with court attendance notices with respect to all charges on 4 April 2016 requiring his attendance at the Inverell Local Court on 9 June 2016. After a number of mentions, the matters again came before the Local Court on 29 September 2017 and were on that day listed for hearing over a three day period commencing on 1 February 2017.

6. On 25 January 2017, the officer in charge of the investigation filed an application in the Inverell registry seeking to vacate the hearing date. Among the grounds listed in support of the application, the prosecution said this:

“As a result of a senior prosecutor being assigned to the case, insufficiencies within the prosecution brief have been identified. Further time is now required to examine these insufficiencies and get the prosecution case back on track. This may lead to a reduction in hearing time, or some charges being withdrawn.”

7. His Honour dealt with the application in chambers. It was refused. As a result, the prosecution advised Mr McNamara’s solicitors that the prosecution would not proceed and that the charges would be withdrawn. The prosecutor, in anticipation of a costs application, also invited Mr McNamara’s solicitors to submit an estimate of his costs for consideration.

8. The matter came before his Honour on 2 February 2017. The prosecutor announced that the charges were withdrawn. Mr McNamara opposed the withdrawal of the charges pursuant to s 208 and sought instead a dismissal by the Court pursuant to s 205(1) together with a certificate pursuant to s 205(2). That application was based upon Mr McNamara’s concern that to accede to the prosecutor’s request would permit the later institution of proceedings against him for the same matters: s 208(2). He submitted that to allow the prosecutor to withdraw the charges pursuant to s 208 would constitute an abuse of process and that his Honour should instead, of his own motion, have dismissed the charges pursuant to s 205.

9. Mr McNamara’s application was opposed by the prosecution, contending that there was no legal or other impediment to her withdrawing the charges and that by operation of the s 208(1), they were taken to be dismissed. Mr McNamara would thereafter be taken to be discharged in relation to the offences concerned.

His Honour’s reasons

10. His Honour delivered a long and thorough judgment on a wide range of issues. It will be necessary to refer to these reasons in more detail below. However, with respect to Mr McNamara’s concerns about the operation of s 208 of the Act, his Honour said the following:

“35. Dealing with the first of these submissions made on behalf of the accused, specifically the ability of the prosecution to reinstitute proceeding as against the accused at a later stage, I am satisfied that, by enacting s 208 in its present form, the legislature contemplated what was to occur when charges are withdrawn pursuant to s 208, namely that they are deemed (emphasis added) to be dismissed and the accused is accordingly discharged. No leave is required by the Prosecutor to withdraw the charges and in those circumstances what then follows is, so far as I apprehend the effect of the section, self-executing.

36. With respect to this submission, I am not persuaded that the case for the accused has been made out, i.e., withdrawal pursuant to s 208 constitutes an abuse of process and indeed for me to so find otherwise, in my view, subverts the clear intention of the legislature.”

11. His Honour then referred to the decision of Burns J in R v Feeney [2012] ACTSC 153 at [16] and continued as follows:

“38 I heed the note of caution to which his Honour refers in so far as I am invited by the accused to consider withdrawal of the charges under s 205 and the impact that will have upon any future prosecution. I do not consider the issues surrounding the accused’s health nor the sums already expended by him towards his defence, which are considerable, as matters that ought to inform my decision with respect to this application and I consider that such arguments are entirely apposite to an argument with respect to staying any future proceedings that might otherwise be brought by the Prosecutor. The notion that future proceedings are possible does not in my view support the argument that withdrawal of the charges under s 208 constitutes an abuse of process nor has it been demonstrated that to do so is oppressive or would otherwise bring the legal system into disrepute.

39. Accordingly, the application by the accused for an order dismissing the proceeding pursuant to s 205 and a certificate under s 205(2) cannot be sustained. The conduct of any prosecution is of course a matter for the prosecution and no authority has been cited which would suggest that this court ought to prevent a prosecutor from withdrawing a charge.

40. In all of the circumstances the submissions made on behalf of the accused on this question are, with unfeigned respect, misconceived and must therefore fail.”

12. His Honour then turned to consider Mr McNamara’s application for costs. The orders ultimately made by his Honour were as follows:

1. The application for an order dismissing the proceedings pursuant to s 205 and the issue of a certificate pursuant to s 205(2) is refused.

2. The application for costs is refused.

Interlocutory or final?

13. Section 53 of the Crimes (Appeal and Review) Act provides as follows:

“53 Appeals requiring leave

(1) Any person who has been convicted or sentenced by the Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:

(a) a question of fact, or

(b) a question of mixed law and fact,

but only by leave of the Supreme Court.

(2) Any person who has been convicted or sentenced by the Local Court with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

(3) Any person against whom:

(a) an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

(4) An application for leave to appeal must be made within such period after the date of the conviction, sentence or order as may be prescribed by rules of court.”

14. Mr McNamara’s application for leave falls for determination under s 53(3)(b) of the Act. He maintains that his Honour’s orders were interlocutory. Detective Fenner contends that the orders were final. I agree with Detective Fenner.

15. It is uncontroversial that the test of whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties: Bienstein v Bienstein [2003] HCA 7 at [25]. The test calls for an assessment of the consequences of the order itself and a decision about whether the order finally determines the rights of the parties in a principal cause pending between them. Mr McNamara relies in this case upon the proposition that, by reason of the operation of s 208(2), he could be prosecuted in fresh proceedings “for the same matter”. He contends, therefore, that his Honour’s decision does not finally dispose of the rights of the parties.

16. In my view, that contention misconceives the effect of the orders made by the learned Magistrate. The orders operate finally to dispose of the proceedings that were then on foot against Mr McNamara and which, by operation of s 208, came to an end.

17. Sections 205 and 208 of the Act are in these terms:

“205 Order dismissing matter to be made

(1) A court may make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if it decides to dismiss the matter.

(2) A court must make an order of dismissal and give the accused person a certificate certifying that a matter has been dismissed if requested to do so by an accused person against whom a matter has been dismissed or by the prosecutor.

(3) This section does not apply to a matter that is taken to be dismissed because of section 208.

208 Dismissal of matter if matter withdrawn

(1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned.

(2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.”

18. It is clear from Mr McNamara’s amended notice of appeal and from his detailed submissions before me that he challenges the correctness of both orders made in the Court below. That is to say, he appeals against his Honour’s refusal somehow to dismiss the charges pursuant to s 205 of the Act as well as his refusal to award costs.

19. However, these submissions overlook the fact that the prosecutor had an unrestricted and unfettered right to withdraw the charges. She was not required to demonstrate the existence of any particular circumstances or the satisfaction of any preconditions before being able to do so.

20. Mr McNamara argued that the learned Magistrate had the power to refuse to accept the prosecutor’s decision to withdraw the charges against him. He submitted, by analogy with the position in respect of a nolle prosequi, that his Honour had jurisdiction to refuse to permit the prosecutor to do so. He relied upon what was said by the South Australian Court of Criminal Appeal in Question of Law Reserved on Acquittal (3 of 1995) Michael Charles Baenisch (1996) 88 A Crim R 1 at 22 as follows:

“For all of these reasons, the court should have jurisdiction to refuse to permit the entry of a nolle prosequi. But the fact that the court may refuse the entry of a nolle prosequi should not be understood as suggesting that the court will be ready to exercise that power. There are limitations on the exercise of that power. It will be exercised to prevent an abuse of process, unfairness or injustice but only in rare and exceptional circumstances. Beyond that, it is undesirable to seek to prescribe any formula to deal with the infinite variety of facts and circumstances which might be presented to a trial judge…The court must be careful that it does not allow its desire to do justice to induce it to interfere with the prosecutorial discretion.

Similarly, it is undesirable to seek to list the circumstances when it is proper to permit a nolle prosequi. The court will have regard both to the stage in the trial at which the prosecution seeks to enter a nolle prosequi and the reasons for that course. In cases where an adverse ruling is obtained at an early stage of the trial on the question of law, say, on a voir dire examination and the prosecution does not seek a nolle prosequi merely for the purpose of improving its case, the court might be more disposed to permit entry of the nolle prosequi…Where an application has been made because of the availability of material witnesses, the court would, I think, be slow to prevent the entry of a nolle prosequi since the question whether there has been an abuse of process can be examined on application for stay of proceedings when the fresh indictment for [sic, or] information is presented. The decision to refuse to permit the entry of the nolle prosequi in this case was open to serious question.”

21. Whether or not Mr McNamara’s analogy between the entry of a nolle prosequi and a withdrawal of proceedings pursuant to s 208 is good is for present purposes beside the point. If Mr McNamara is challenging what in effect amounts to his Honour’s refusal to prevent the prosecutor from withdrawing the charges against him, he is in any event challenging what was a final decision. His Honour’s conclusion that the prosecutor’s application to withdraw the charges was self-executing is no less a final decision than his refusal to consider making an order pursuant to s 205. In either case, the criminal proceedings commenced by the service of the 282 court attendance notices came to an end. There was thereafter no existing or current proceeding in the context of which his Honour made, or could have made, an interlocutory decision of any kind. When the charges were withdrawn, the proceedings were at an end and Mr McNamara was deemed to be discharged.

22. Even if it were otherwise, Mr McNamara’s express concerns about whether there has been some abuse of process, unfairness or injustice, inappropriately focuses attention upon the result of the withdrawal of the charges, about which there could be no such complaint, and conflates it with what might be the position if the prosecutor elected to lay the same charges again in fresh proceedings. Only in that context would Mr McNamara’s concerns about an abuse of process, or unfairness or injustice, or the need for the court to maintain control over its own process, assume importance. I respectfully agree with his Honour’s remarks in this regard.

23. In short, Mr McNamara’s concerns are premature. Having regard to what was said by the prosecutor to his Honour, they would also appear to be unfounded. This is for the reason that, on 2 February 2017, the prosecutor said this in response to Mr McNamara’s expressed concerns about the reinstitution of proceedings:

“PROSECUTOR: Your Honour, just from the prosecution’s perspective, 208 is the correct section. I hear what my friend says in respect to the issue that it becomes live that proceedings could be reinstituted, however it is the case that in this circumstance when there was an application to vacate because of insufficiencies and further investigations required, it would inevitably be an abuse of process if we were to reinstitute because we’ve essentially bought ourselves time.”

24. Other passages in that transcript make it clear that the prosecution did not propose to reinstitute proceedings afresh.

25. I am also of the opinion that his Honour’s decision with respect to costs was a final determination. My attention was drawn to what was said by Harrison AsJ in Coles Supermarkets Australia v Antony Townsden [2009] NSWSC 1117. Her Honour was there concerned with an appeal to this Court pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act. Her Honour was called upon to consider whether a magistrate’s decision to refuse to make an order for costs was an interlocutory decision. Her Honour dealt with this question at [11] and [14] to [20] as follows:

“[11] On 23 October 2008, the matter came before the Magistrate. The Department of Health withdrew all 19 charges and Coles Supermarkets consented to the withdrawal of the charges and made an application for its costs to be paid by the Department of Health pursuant to ss 213 and 214 of the Criminal Procedure Act 1986. Coles Supermarkets made an application that the Department of Health pay its costs. The Magistrate declined to make this order.

…

Was the decision to refuse an order for costs an interlocutory one?

[14] The NSW Department of Health submitted that this section has no application as the refusal of the Magistrate to award costs is not an interlocutory order. The NSW Department of Health says that Coles Supermarket’s application for costs was made subsequent to and consequent upon the withdrawal of all charges against Coles and this was at a time when the summary proceedings were already at an end.

[15] The New South Wales Court of Criminal Appeal in R v Pavia (1993) 67 A Crim R 364 decided that an order for costs in criminal proceedings was an interlocutory order if it did not dispose of the parties rights in the overall proceedings.

[16] Pavia was an appeal from a decision in a murder trial. During the trial, the Crown sought to lead certain evidence without prior notice to the respondent. The trial judge decided the evidence should be heard in a new trial, dismissed the jury and ordered costs against the Director of Public Prosecutions. The Director appealed [against] the costs order pursuant to s 5F of the Criminal Appeal Act 1912 (NSW).

[17] In Pavia, a ground of appeal was that the Court did not have the jurisdiction to entertain the appeal because the order was not an interlocutory judgment or an order made in ‘proceedings’ to which section 5F of the Criminal Appeal Act applied. This argument was put on the basis that the costs order only related to proceedings that existed prior to the jury being discharged: no ‘proceedings’ existed at the time the appeal was lodged.

[18] Carruthers J stated:

‘This argument proceeds on the mistaken assumption that the indictment was spent by the discharge of the jury … the order was made by Grove J in the course of overall proceedings on indictment against the respondent.

…

In my view the costs order was an interlocutory order because it did not dispose finally of the overall proceedings by the Director against the respondent. … The test that has been adopted in Australia at least since Hall v Nominal Defendant (1966) 117 CLR 423 at 439, has been to ask whether the order challenged finally disposes of the rights of the parties. It is clear then that this argument must be rejected.’

[19] While generally agreeing with Carruthers and McInerney JJ, Sully J characterised the trial judge’s order as interlocutory because:

‘…it was made as an interim step in a proceeding which commenced with the presentation of the indictment and which would not conclude in a relevantly final sense until either the conviction or acquittal of the accused upon that indictment, or perhaps the termination finally or proceedings by the Director’s entering of a nolle prosequi.”

[20] This is not the case here. When the charges were withdrawn, the proceedings were at an end. In these circumstances, the costs order would not be considered an interim step. However, it is not necessary to decide this issue because it is common ground that Coles Supermarkets can seek relief under s 69(3) of the Supreme Court Act 1970…”

26. I respectfully agree with her Honour’s conclusion. Sully J’s reference to the position where a nolle prosequi is entered is also significant, especially having regard to the reliance placed upon this by Mr McNamara. Whatever may be, or may have been, his Honour’s power or ability to refuse to permit the prosecution to withdraw the charges pursuant to s 208, once that occurred, and the charges were withdrawn, the proceedings were at an end.

27. An order will not have the character of a final order if it is theoretically possible for the unsuccessful party to make a further application for the same relief, even though such an application may have little prospect of success: CDW v LVE [2015] WASCA 247 at [54]. It is not theoretically possible for Mr McNamara in this case to seek to reagitate the issues of either the making of an order pursuant to s 205 of the Act or his Honour’s decision to refuse to award costs. There is in these circumstances no jurisdiction to entertain Mr McNamara’s appeal pursuant to s 53(3)(b) of the Act. Leave to appeal should be refused.

Judicial review

28. Section 69(1) of the Supreme Court Act is in the following terms:

“69 Proceedings in lieu of writs

(1) Where formerly:

(a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or

(b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:

(c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but

(d) shall not issue any such writ, and

(e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and

(f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.”

29. It is not in issue in these proceedings that Mr McNamara has a right to apply to this Court for judicial review of his Honour’s decision.

30. This Court may grant relief pursuant to s 69 of the Supreme Court Act with respect to error of law on the face of the record or jurisdictional error. Mr McNamara appears to contend that both types of error are evident in his Honour’s judgment. Jurisdictional error appears to be asserted in respect of his Honour’s construction of s 208 and s 214 of the Criminal Procedure Act. Mr McNamara contends that his Honour concluded that s 208 is to be construed so as to permit a prosecutor unilaterally to withdraw charges in circumstances where their withdrawal may constitute an abuse of process and that the Local Court is therefore precluded from exercising any control over that withdrawal. This is said to constitute jurisdictional error. Mr McNamara also argues that his Honour impermissibly limited the operation of s 214 and that this also constitutes jurisdictional error.

31. Mr McNamara relied upon a series of grounds of appeal in this context in his amended notice of appeal. These are dealt with in turn.

Grounds (a) and (f)

32. These grounds were formulated in the following terms:

(a) The judge erred in law in his construction and application of s 208 and in particular erred in law by determining that s 208 permitted the prosecutor unilaterally to withdraw charges preferred against the applicant in circumstances where the withdrawal had the potential to bring the administration of justice into disrepute.

(f) The judge erred in law in his application of the principle of abuse of process in determining that the principle was excluded by s 208.

33. The relevant portion of his Honour’s judgment dealt with this question as follows:

“25. The accused agitates that it would be an abuse of process to allow the prosecutor to withdraw the charges pursuant to s 208 and rather, the court ought to, of its own volition, dismiss the charges pursuant to s 205.

26. In support of that contention, I discern from the lengthy written submissions made by Mr Thomas that the gravamen of the accused’s position…is as follows:

(a) A withdrawal pursuant to s 208 does not prevent the prosecution from reinstituting later proceedings in any court for the same matter against the same accused s 208(2);

(b) The present prosecution comprises 282 charges which, if reinstituted, would require time to defend each charge at considerable expense to the accused and the antecedent cost to the health of the accused;

(c) That if the proceedings were reinstituted ‘pressure could be applied, even improperly, to force him to make improper admissions, or even pleas in order to avoid the stress and costs of the new proceedings’;

(d) The right on the part of the prosecution to reinstitute proceedings would bring the legal system into disrepute and would be oppressive;

(e) The principle of finality requires dismissal as sought by the accused.

27. Under s 208 it is clear however that if a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused is taken to be discharged in relation to the offences concerned. There was no equivalent provision in the repealed Justices Act 1902. Section 208 does not require or permit an order of dismissal of the matter by the court. The withdrawal of the matter deems that to have occurred upon withdrawal – the matter is taken to be dismissed and the accused person is taken to be discharged.

28. Given that s 208 does not involve an order of dismissal of the matter by the court, the question arises as to whether the withdrawal of the matter under s 208 gives rise to an entitlement to a certificate of dismissal under s 205 which would have the consequence under s 206 of the Act of preventing any later proceedings in any court for the same matters against the accused. Section 205 however specifically does not apply to the dismissal of proceedings under s 208: see s 205(3).”

34. His Honour proceeded thereafter to formulate his conclusions at [35] and [36] as earlier described.

35. Mr McNamara contended that his Honour’s analysis, and his conclusion that s 208 was self-executing, had the effect of expressly limiting the court’s ability to control its own processes by excluding the power to refuse to permit the prosecution to withdraw the charges in circumstances where their withdrawal had the tendency to work an abuse of process. He argued that the imposition of that limitation upon the court’s power constituted jurisdictional error.

36. In support of that contention, Mr McNamara relied upon what was said by Mason P in DPP v Shirvanian (1998) 44 NSWLR 129 at 134-5 and the cases there cited. However, what his Honour said included the following:

“No court in Australia has unlimited jurisdiction, and all courts in Australia are concerned with issues of fairness, avoidance of oppression, and the maintenance of general confidence in legal process. The last mentioned goal itself imposes severe limits upon the power to stay proceedings, because a court that itself abuses the power to grant a permanent stay transgresses the separation of powers by trenching upon the proper function of the executive arm and declining its own constitutional function of determining disputes.

…

The duty to observe fairness, at least in its procedural sense, is a universal attribute of the judicial function. Those aspects of a fair trial known as the principles of natural justice apply by force of the common law and the presumed intent of parliament unless clearly excluded in a particular context. In my view, the same can be said about the power to prevent abuse of process as an incident of the duty to ensure a fair trial.”

37. In the present case, his Honour applied what seems to me to be the clear words of the relevant sections of the Act. Far from limiting the Court’s power to control its own process, or to prevent any abuse of that process, his Honour implicitly, if not on one view explicitly, recognised that the time for assessment of any such concerns had not yet arisen; see, for example, at [38] of his Honour’s judgment previously cited. The limited prospect of the prosecution reagitating the charges was small, but the time to consider whether there may have been an abuse of process does not arise unless and until that occurs. The power of the Court to restrain the prosecutor’s ability to withdraw the charges is clearly constrained, if not entirely excluded, by the words of s 208. Nothing in that section, however, operates to prevent a later stay of proceedings, for example, to avoid an abuse of process as the circumstances of the case may require. An attempt by the prosecution to reinstitute the charges would arguably be such a case.

38. His Honour made no error of the kind asserted by Mr McNamara or at all.

Grounds (b), (c), (d) and (g)

39. These grounds are as follows:

“(b) The judge erred in law in his construction and application of s 214 Criminal Procedure Act 1986 and in particular erred by construing subsection (1)(a) as being inapplicable where the prosecution has failed to include in its brief of evidence any material (evidence) relating to proof of the elements of the offence(s) charged.

(c) The judge erred in law in his construction and application of s 214 and in particular he erred by construing subsection 1(b) as being inapplicable where the prosecution has failed to include in its brief of evidence any material (evidence) relating to proof of the offences charged.

(d) The judge erred in law in his construction and application of s 214 and in particular he erred by construing subsection 1(c) as being inapplicable where the prosecution has failed to include in its brief of evidence any material (evidence) relating to proof of the offences charged.

(g) The judge erred in law in that he found that a lack of evidence of the elements of the offences charged was only a matter of weight.”

40. Section 214(1) of the Act is as follows:

“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.”

41. His Honour’s conclusion with respect to s 214(1)(a) is as follows:

“81….I am not satisfied that the accused has been able to identify what part of parts of the investigation were conducted unreasonably or improperly as I apprehend the section requires and I am invited to make findings on what is submitted to be the failure of the prosecutor to include within the brief, evidence sufficient to establish the elements of these offences. Those submissions in my view conflate deficiency if indeed that be the case with the question of whether the investigation was conducted by the prosecutor in an unreasonable or improper manner.”

42. The significant thrust of Mr McNamara’s submissions before his Honour and in this Court was that an examination of the prosecution brief failed to reveal the existence of evidence sufficient to establish the case against him. His submissions described the brief as “materially incomplete” and that that “arose out of an incomplete investigation of the allegations” which in turn supported a conclusion that “the investigation had been conducted in an improper manner”. Mr McNamara submitted in these circumstances that “the prosecutor ought to have been aware that, on the prosecution case, [Mr McNamara] was not guilty.”

43. Section 214(1)(a) directs attention to the reasonableness and propriety of the investigation, not to the adequacy or otherwise of the evidence marshalled or discovered or assembled as a result. Mr McNamara’s submissions direct attention to the latter. I accept that Mr McNamara contends that the alleged paucity of the evidence may hypothetically bespeak or suggest an improper or unreasonable investigation and that it does so in the present case. However, the proper inquiry, to which his Honour directed himself, was to the investigation itself. His examination of the police brief and the “evidence” that it contained, was conducted at Mr McNamara’s urging. It does not follow that a conclusion by his Honour, which he declined in any event to make, that the evidence did not establish the charges against Mr McNamara, foreclosed his Honour’s conclusion that the unreasonableness or impropriety of the investigation had not been established. I agree with his Honour’s analysis that Mr McNamara’s contentions conflate the perceived deficiencies or insufficiencies in the evidence with the separate question of whether the investigation was conducted in an unreasonable or improper manner.

44. His Honour said this at [68] and [77]:

“68. In my view, the essential thrust of [Mr McNamara’s] submissions focuses upon the question of the adequacy of the investigation rather than upon the question of whether they were conducted in an unreasonable or improper manner as required by the legislation and the impact that had on the conduct of the proceedings.

…

77. Apart from the general assertions made in [Mr McNamara’s] submissions, no reference is made to any specific manner of the investigation which could be characterised as being unreasonable or improper as distinct from what [he] opines as what he would have me accept as the poor state of the evidence.”

45. Support for this approach, if support were needed, can be found in the judgment of Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815 at [46] – [49]:

“(a) That the investigation into the alleged offence was conducted in an unreasonable or improper manner

46. This provision, like that in s 70(1)(c), is concerned with investigations and not proceedings. The provision is directed to determining whether the investigation into an alleged offence was conducted ‘… in an unreasonable or improper manner’.

47. This provision, accordingly, requires the plaintiff to establish that the investigation into the alleged offence under s.132 of the Act was such as to fall within s 70(1)(a).

48. The failure of proceedings does not of itself mean that the proceedings fall within s 70(1)(a) on question of costs arises. In Regina v Moore; ex parte Federated Miscellaneous Workers’ Union of Australia (1978) 140 CLR 470, (proceedings involving an unsuccessful challenge to the capacity of an industrial union to create an industrial dispute by service of a log of claims) Gibbs J (with whose reasons and conclusions Barwick CJ agreed) stated:-

‘The respondent … has applied for costs on the ground that the proceeding was instituted by the prosecutor ‘without reasonable cause’ within the meaning of s 197A of the Act. In my opinion a party cannot be said to have commenced a proceeding ‘without reasonable cause’, within the meaning of that section, simply because his argument proves unsuccessful.’

49. In general terms, the expression ‘unreasonable or improper manner’ embraces the notion of the conduct of investigations in a way or by a method or a mode of procedure that grossly falls below the relevant standards applicable to the relevant type or class of investigation. In JD v DPP [2002] NSWSC 1092, a matter arising out of committal proceedings involving the alleged sexual abuse of young children, there had been a failure by police to conduct certain interviews of very young children according to established protocols which the Court determined had adversely affected the quality of police interviews. Hidden J, however, observed:-

‘I find it somewhat difficult to see that anything done by the police was unreasonable or improper as these words are commonly accepted to mean. The fact that an investigation does not come up to optimum expectations would not put it into a category of being unreasonable or improper unless it was grossly below optimum standards and I cannot say that that is the case here’.” (emphasis in original)

46. I do not consider that in the present case his Honour erred in his consideration of s 214(1)(a) of the Act.

47. With respect to s 214(1)(b) of the Act, Mr McNamara specifically disavowed any suggestion that the proceedings were initiated in bad faith. He relied instead only upon the propositions that they had been initiated without proper cause or had been conducted in an improper manner.

48. His Honour gave further consideration to the decision of Hall J in Halpin, and the cases to which Hall J referred. The following further principles can be distilled:

1. A party does not institute proceedings without reasonable cause merely because that party fails in the argument put to the court.

2. A proceeding will be instituted without reasonable cause if it has no real prospects of success or was doomed to fail.

3. The question as to whether at the time the proceeding was instituted it had no real prospects of success or was doomed to fail is a question of fact to be determined objectively.

4. One way of testing whether a proceeding is instituted without reasonable cause is to ask whether, upon the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success, and if success depends upon the resolution in the prosecutor’s favour of one or more arguable points of law, it is inappropriate to stigmatise the process as being without reasonable cause. However, where on the prosecutor’s own version of the facts it is clear that the proceeding must fail, it may properly be said that the proceeding lacks reasonable cause: Canceri v Taylor (1994) 123 ALR 667.

49. His Honour took account of the submission below that, having investigated the matter, the prosecution had determined that the evidence it had assembled disclosed a prima facie case sufficient to warrant the charges being preferred against Mr McNamara. Significantly, the prosecution relied upon a record of interview with Mr McNamara said to contain admissions by him of breaches of regulations 35(2)(a) and 35(3) of the Regulation. His Honour was therefore “alive to the potential difference between a case that failed at a prima facie level and a proceeding that could be characterised as having been initiated without reasonable cause”: O’Brien v Hutchinson [2012] NSWSC 429 at [25].

49. Mr McNamara submitted that his Honour erred "by misunderstanding the facts in a material and fundamental respect and by construing the subsections in such a way as to exclude them from situations where the prosecution has failed to obtain…evidence which is capable of proving to the requisite degree, each and all elements of the offences charged." He contended that this constituted a material error of law.

50. Mr McNamara necessarily maintains that his Honour somehow failed to apply the proper test in his consideration of the section. However, in my opinion, that submission must fail. His Honour did not accept Mr McNamara’s argument that there were evidentiary gaps in the prosecution brief that meant that the proceedings had been commenced without reasonable cause or that they had been conducted in an improper manner. Such a finding was open to him.

51. With respect to s 214(1)(c), Mr McNamara maintained a similar approach.

52. The focus of s 214(1)(c) is upon whether there was an unreasonable failure to investigate any relevant matter which suggested that McNamara might not be guilty: RP v DPP [2015] NSWSC 248. This provision will arguably be enlivened in circumstances where, for example, it emerges that the prosecution was aware of matters that suggested that an accused person may not be guilty of the offence charged, and that the prosecution did not reasonably investigate those matters.

53. His Honour dealt with this provision at [96] to [104] of his judgment. Some of what his Honour said is as follows:

“96. Was there an unreasonable failure to investigate relevant exculpatory matters? If a prosecution fails, and it emerges during the proceedings that the prosecution was aware of matters which suggested that the defendant may not be guilty of the offence, or for some other reason ought not to be prosecuted for the offence, and did not reasonably investigate those matters, an application for costs under this subsection may have been established.

97. As Hidden J observed in RP v DPP:

‘The focus of (c) of s 214(1) is, of course, narrower than that of paragraph (a)…it is directed to whether there was an unreasonable failure to investigate any relevant matter which suggested that the plaintiff might not be guilty.’

98. Mr Thomas cites the prosecutor, in her application to vacate the hearing date, identifying ‘insufficiencies in the prosecution case’ as support for the proposition that the brief contained no material capable of satisfying the elements of the offence. The fact that the prosecutor, having considered the matter, came to the view that she did, namely that the prosecution may not succeed on the strength of the evidence as it then stood, is an elective decision in the exercise of the prosecutor’s discretion.

99. This was a decision of the type that prosecutors are often regularly called upon to make. To make such a decision is not in my view to make the concession that the proceedings were not properly investigated or should not have been brought. In any event, it is, in my view, drawing a long bow to submit that I should find that there was no material in the brief capable of satisfying the elements of the offence or that the proceedings should not have been brought.

100. Mr Thomas also submitted that with respect to all charges there was a failure to reasonably investigate the matter for the reasons set out earlier. Apart from what the accused submits is a general failure to properly investigate the matter and that a prosecutor acting reasonably would have identified the issue (emphasis added) and discontinued the proceedings at an early date, the focus of Mr Thomas’s submissions points once again to what the accused submitted is the inadequacy of the investigation rather than to the exception to which the subsection is directed.

101. The prosecutor submits that in respect of the charges alleging a breach of regulation 35(2)(a), Mr Thomas raises an issue which involves a question of statutory construction and therefore the question of liability of the accused is based upon how the regulation is to be construed. In reply, Mr Thomas simply says that as a matter of law the prosecutor was required to address the elements of the offences by reference to the evidence available to it and that had it done so the prosecution would not have been instituted, or, if instituted, discontinued at an early stage.

102. Hall J in Halpin (supra) addressed a similar matter involving breaches of the Gaming Machine Act 2001 in which similar submissions were agitated in that matter an[d] observed at [62]:

(c) Prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter

62 In the present case, it could be said that the defendant failed to have sufficient regard to the fact that the fault which prevented “connectivity” was a fault in the GMIC and further that the GMIC formed a component part of the CMS and that had it done so the decision to prosecute would not have been made.

63 Accordingly, the relevant issue arising under s 70(1)(c) in the present proceedings, in my opinion, is whether or not it could be said that the defendant, as prosecutor, ‘was or ought reasonably to have been aware of’ those facts and that ‘…the proceedings should not have been brought’.

64 It is apparent from what has earlier been stated that the prosecution proceedings did not arise merely upon a set of facts which either did or did exist and constitute a contravention of the relevant provisions of the Act. The matter was not as straightforward for it involved a question of statutory construction as well as an assessment of factual matters. In those circumstances, and by reason of the fact that the question of statutory construction was a central issue, I do not consider that it can be said that the prosecutor has unreasonably failed to investigate a relevant matter within the meaning of s 70(1)(c) or that even if there was some failure to fully investigate a factual issue that the prosecution was still not arguable whatever the facts.

103. I find in the present case that the accused has failed to satisfy me that the provisions of s 214(1)(c) have been satisfied such as to bring him within ambit of entitlement to an order for costs under this provision.”

55. In my opinion, his Honour’s conclusion that Mr McNamara has not demonstrated that the prosecutor unreasonably failed to investigate any relevant matter or that for any other reason the proceedings should not have been brought is unexceptionable.

56. Finally, in this group of appeal grounds, Mr McNamara originally contended that his Honour erred in law in that he found that a lack of evidence of the elements of the offences charged was only a matter of weight. This ground was not separately the subject of further submissions beyond the extent to which it was argued in the context of other grounds of appeal.

57. I do not consider that his Honour made any error of law or jurisdictional error in his treatment of s 214(a), (b) or (c) of the Act.

Ground (e)

58. This ground of appeal was formulated as follows:

“(e) The judge erred in law in his construction and application of s 214 and in particular he erred by construing subsection (1)(d) as being subject to an implied limitation that if a defendant has been given an opportunity of explaining his or her version of events and has not done so then it is not “just and reasonable” to award costs.”

59. His Honour dealt with this provision at [105] to [111] of his judgment as follows:

“105. The defendant must establish something about the conduct of the proceedings being an exceptional circumstance other than some matter referred to elsewhere in the section.

106. The mere fact proceedings are resolved in the defendant’s favour is not enough as was observed in Fosse v DPP [1999] NSWSC 367:

‘Exceptional circumstances mean what it says as a matter of ordinary English. Mere proffering of no evidence is not enough, nor is mere reliance on exculpatory statements of the defendant. Neither is remarkable in itself or in combination: Dong v Hughes [2005] NSWSC 84.’

107. In Caltex Refining Co Pty Ltd v Maritime Services Board of NSW Sully J observed at 561:

‘…the words of the section require that an order for the payment of costs pursuant to s 52 of the [Land and Environment Court Act 1979] must be both just and reasonable. The order must be in just terms of the way in which it has been reached; and it must be reasonable in its actual terms.’

108. There is no specific conduct identified in Mr Thomas’s submissions nor do I find that there are any particular facts or matters concerning the conduct of the proceedings by the prosecutor which would in my view constitute a basis for attracting this provision.

…

111. I have had regard to the manner in which the proceedings were conducted by the prosecution and find nothing remarkable in that respect which would allow me to arrive at a determination that the prosecution conducted the proceedings attracting the provisions of s 214(1)(d).”

60. It is well established that a defendant’s conduct in relation to an investigation or the conduct of proceedings may be a factor to be considered when deciding whether it is “just and reasonable” to exercise the discretion. For example, in Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 544, Mason CJ said this:

“However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all of the defendant’s costs. If, for example, the defendant, by his or her conduct after the events constituting the commission of the alleged offence, brought the prosecution upon himself or herself, then it would not be just and reasonable to award costs against the prosecutor.

I agree with Toohey J that, if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs. Likewise, if a defendant conducts his or her defence in such a way as to prolong the proceedings unnecessarily, it would be just and reasonable to make an award for a proportion of the defendant’s costs.”

61. To my best observation, there is nothing in his Honour’s judgment that comes close to providing any support for this ground of appeal. His Honour referred to Latoudis v Casey at [121] but did not formulate his reasons in a way suggesting or indicating that he limited himself in dealing with s 214(1)(d) as contended by Mr McNamara.

Grounds (h) and (i)

62. These grounds are as follows:

“(h) The judge erred in law by failing to consider relevant evidence in that he fails to consider or properly to consider the material contained in the two affidavits of Ms Ramsay 23 February and 12 April 2017.

(i) The judge erred in law in finding that the investigation of the matter and/or the conduct of the prosecution was conducted in a reasonable and/or proper manner by taking into account matters that were not in evidence but were merely assertions by the prosecutor in her submissions.”

63. His Honour dealt with the submission below at [128] of his judgment as follows:

“128. Mr Thomas further submitted that the prosecutor acted unreasonably ‘in seeking to raise, in her submission’ matters not in evidence’. He does not elucidate further. This submission is unhelpful in assisting me to determine the merits of the accused’s application.”

64. This ground of appeal did not become any clearer in submissions before me. No error of law or jurisdictional error has been identified or explained.

Ground (j)

65. This ground was as follows:

“(j) The judge erred in law in that the decision to permit the prosecution to unilaterally withdraw the 282 charges pursuant to s 208 in circumstances where it did not have evidence of the elements of the offences charged and it retained the right to recommence the prosecutions at a later date and where it was not required to pay the applicant’s costs thrown away as a result of the aborted prosecution is unreasonable and/or unjust.”

66. This ground of appeal seeks to agitate matters that have already been dealt with in the context of other grounds of appeal. It is unnecessary to consider it further.

Conclusion

67. For the reasons set forth above, I am not satisfied that his Honour fell into any error of the type nominated by Mr McNamara, either in the decision to refuse his application for an order dismissing the proceedings pursuant to s 205 of the Criminal Procedure Act or his decision to refuse Mr McNamara’s application for costs. His Honour also did not fall into jurisdictional error in his construction of s 208 or s 214 of that Act.

Was there an agreement as to costs?

68. His Honour’s deliberations and conclusions somewhat curiously included a consideration, in the context of Mr McNamara’s application for costs, of the question of whether or not there had been an agreement reached between Mr McNamara and the prosecution about the payment of his costs.

69. Under this same heading, his Honour dealt with the issue as follows:

“112. In the interests of completeness, I refer to the submission made by the accused’s counsel that the prosecutor had agreed to dismissal of the charges with costs and that only quantum would be needed to be determined. The legislation would appear to be prescriptive – that the award of costs is discretionary but must only be awarded if the criteria set out in s 214(1)(a) – (d) have been met.

113. I have in any event considered the material relied upon by the accused and the communications upon which the accused relies to support this submission. It is apparent on any reading of the material provided that the prosecutor does not consider that the submissions made on behalf of the accused with respect to costs have merit. The substance of the conversations between the accused’s solicitor and the prosecutor as deposed by the accused’s solicitor on which the parties are ad idem and must therefore remain in issue [sic].

114. For this reason I do not consider anything turns upon those submissions referable to the communications between the accused’s solicitors and the prosecutor shortly prior to the 2 February 2017 and accordingly I am not satisfied that the prosecutor accepted liability for the accused’s costs for these proceedings.”

70. I am presently uncertain as to precisely what role Mr McNamara suggests the alleged agreement as to costs, or his Honour’s treatment of it in the Court below, is said to play in these proceedings before me. The suggested agreement is not the subject of any discrete ground of appeal. It does not arise as an issue by inference or otherwise in the consideration of any ground of appeal. Despite some passing reference to it in the proceedings before me, no significant submissions about it were made. Certainly Mr McNamara’s written submissions make no reference to it. I remain unassisted as to the basis upon which complaint is now made about it, if any. I was not assisted by any argument concerning the relationship between the agreement that is alleged by Mr McNamara on the one hand and his Honour’s discretion concerning costs. In particular, I have not been told whether the agreement, if established, is said to foreclose that discretion, or whether it is a matter of merely persuasive force. I note finally that the existence of a binding and enforceable agreement between the prosecutor and Mr McNamara, if such were possible in this context, has been denied by the prosecutor and has not otherwise been the subject of separate enforcement proceedings by Mr McNamara.

71. Having regard to these matters I do not propose to consider it further.

Orders

72. It follows in my opinion that the following orders should be made:

1. Refuse leave to appeal pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act2001.

2. Amended summons otherwise dismissed with costs.

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Decision last updated: 15 December 2017