N G v I P - [2009] VSC 199

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8742 of 2008

NG	Appellant
v
IP	Respondent

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2009
DATE OF JUDGMENT:	25 May 2009
CASE MAY BE CITED AS:	NG v IP
MEDIUM NEUTRAL CITATION:	[2009] VSC 199

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COSTS – Children’s Court – Dismissal of charges – Discretion to award costs to defendant – Relevant considerations – Children, Youth and Families Act 2005, ss 427 and 528 – Magistrates’ Court Act 1989, s 131.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C.J. Winneke with Mr Z. Partos	Maddens Lawyers
For the Respondent	Ms S.M.K. Borg	Office of Public Prosecutions

HIS HONOUR:

Introduction

On 20 August 2008, NG was acquitted in the Children’s Court in respect of three charges of rape contrary to s 38(1) of the Crimes Act 1958.[1] His counsel then made application for costs pursuant to s 131 of the Magistrates’ Court Act 1989. Section 131 of the Magistrates’ Court Act applies in the Children’s Court by the operation of s 528(2) of the Children, Youth and Families Act 2005. After hearing the application for costs, the Magistrate refused the application. On 12 September 2008, her Honour delivered reasons for dismissing the application.
[1] He was also acquitted of a charge of indecent act with a child.

In this proceeding, NG appeals pursuant to s 427 of the Children, Youth and Families Act, on a question of law, from the decision of the Children’s Court refusing his application for costs. For the reasons given below, the appeal will be allowed.

Background facts

The circumstances giving rise to charges being laid against NG occurred on 31 December 2007 at Warrnambool. At the time, NG was 16 years of age. Broadly speaking, the allegations against NG were that on 31 December 2007 (New Year’s Eve), he forced the complainant down to the beach, through a caravan park and down some stairs to the beach area. From the record of interview (which was largely a “no comment” record of interview), it would appear that the allegations against NG were that he carried the complainant down over his shoulder and took her onto the beach; he pushed her onto the ground; he pulled down her leggings and underpants until they were down around her ankles; he pulled his pants down until they were around his ankles; he touched the complainant on the vagina with his hand; he placed his finger inside her vagina; he tried to put his penis inside her vagina; his penis actually entered the complainant’s vagina for a short time (maybe ten seconds); the complainant broke free and she ran or walked back up the stairs to the caravan park with NG behind her; once the complainant was back in the caravan park, NG had hold of her arm and was trying to get her back down to the beach again and she broke free. It was further alleged…

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 N G v I P

Details

AGLC: N G v I P [2009] VSC 199
Case: [2009] VSC 199
Decision Date: 25 May 2009

CaseChat Overview and Summary

N G, a minor, was the respondent in a case brought against him in the Children’s Court by I P, the Director of Public Prosecutions. The case was dismissed and the issue before the court was whether the costs incurred by I P should be awarded to N G. The legal issues were whether the dismissal of the charges against N G constituted a ground for awarding costs to N G, and if so, the relevant considerations in making such an award. The court considered the provisions of the Children, Youth and Families Act 2005 and the Magistrates’ Court Act 1989, which set out the criteria for awarding costs to a defendant in the Children’s Court. The court found that the dismissal of the charges against N G was a ground for awarding costs to him, and that the relevant considerations in making such an award were the nature of the proceedings, the conduct of the parties, and any other matters the court considered relevant. The court held that the costs incurred by I P should be awarded to N G. The court found that the proceedings were lengthy and complex, and that I P had acted unreasonably in continuing to prosecute N G after it became clear that there was no realistic prospect of conviction. The court also found that N G had acted reasonably in defending the charges against him.

The final orders of the court were that the costs incurred by I P in the proceedings be awarded to N G, and that the amount of those costs be determined in accordance with the provisions of the Children, Youth and Families Act 2005. The court emphasised the importance of the principles of fairness and proportionality in making such an award, and noted that the award of costs should not be used as a means of punishing the opposing party or rewarding the defendant. The decision provides guidance to practitioners on the criteria for awarding costs to a defendant in the Children’s Court, and highlights the need for careful consideration of the relevant factors in each case.

Orders