NSW Police v Chu

[2021] NSWLC 4

Local Court

New South Wales

Medium Neutral Citation:

NSW Police v Chu [2021] NSWLC 4

Hearing dates:

24 February 2021

Date of orders:

08 March 2021

Decision date:

08 March 2021

Jurisdiction:

Civil

Before:

McGlynn LCM

Decision:

Defendant’s application for costs refused

Catchwords:

ADVO PROCEEDINGS – COSTS – Inexcusable deviation from reasonable case management  

Legislation Cited:

Crimes (Domestic and Personal Violence) Act 2007, ss 99 (rep), 99A

Criminal Procedure Act 1986, s 214

Justices Act 1902 (rep), s 66F

Cases Cited:

Redman v Willcocks (2010) 79 NSWLR 226

DPP v West [2000] 48 NSWLR 647

Category:

Costs

Parties:

NSW Police (prosecution)
Cornelius Bartholomew Wai Kiu Chu (defendant)

Representation:

Counsel: Mr Butterfield for the Defendant

Solicitor for the Defendant: Hunt & Hunt Lawyers

Prosecutor: Sergeant Kalimeris

File Number(s):

2020/107436

Publication restriction:

Nil

Judgment

1. The defendant in this case seeks an order for costs following the withdrawal of an application for an Apprehended Domestic Violence Order (ADVO) on the date it was listed for hearing; 24 February 2021.

2. The withdrawal of the ADVO application was subsequent to the refusal of a Prosecution application to adjourn the contested hearing that was made as a consequence of the Prosecution’s failure to serve a large amount of material on which they wished to rely on the Defence. The Court was advised that the material included emails from the defendant to the complainant; and handwritten and typewritten letters allegedly left in the mail box of the complainant by the defendant. The material was referred to in a general way in the complainant’s statement of evidence, a document which had been served; and was relied upon to prove ongoing harassment of the Person In Need Of Protection (PINOP) by the defendant.

3. The costs application is brought pursuant to s 99A of the Crimes (Domestic and Personal Violence) Act which reads (relevantly):

s 99A (2) A court cannot, in apprehended domestic violence order proceedings, award professional costs against an applicant who is a police officer unless satisfied that:

(a) the applicant made the application knowing it contained matter that was false or misleading in a material particular, or

(b) the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable.

4. For this application the Defence rely on subsection (b) only.

History

5. The ADVO application is dated 8 April 2020. It was served on 9 April 2020 and was first listed at court on 12 May 2020 when it was stood over to 16 June 2020 to enable the defendant to seek legal advice.

6. By letter dated 15 June 2020 addressed to the Officer in Charge (OIC) Constable McTaggart, Mr Miller, solicitor for the defendant, made representations that the application be withdrawn. By separate letter of the same date addressed to the PINOP, Mr Miller advised that the defendant ‘is prepared to only contact you through his solicitors’; the context of the ADVO application being an ongoing loan agreement between the defendant and the PINOP that the defendant said would necessitate contact of some kind.

7. When the matter returned to court on 16 June 2020 the defendant was represented by Mr Miller of Hunt and Hunt Lawyers for the first time. The ADVO application was opposed and a timetable set for the service of evidence. The Police were to serve their evidence by 30 June 2020 and the Defence by 14 July 2020. The matter was listed for a compliance check on 21 July 2020.

8. By letter dated 20 July 2020 Mr Miller advised the registrar of Hornsby Local Court that the loan ‘has now been resolved’ and that in ‘our submission there is no need for the order to be made’.

9. On 21 July 2020 the defendant was again represented by Mr Miller and further orders were made for the service of evidence; that being, the Police were to serve their evidence by 28 July 2020 and the Defence by 11 August 2020. The matter was listed on 18 August 2020 to fix a hearing date.

10. On the same date, 21 July 2020, the police brief of evidence was filed at Hornsby Local Court registry; absent the documents that were the subject of the unsuccessful adjournment application on 24 February 2021; and which were listed as item 11 on the 'contents of brief of evidence' document.

11. At court on 18 August 2020 the defendant was again represented by Mr Miller and the matter was stood over to 15 September 2020 for the consideration of representations.

12. On 15 September 2020 the matter was stood over to 13 October 2020 as representations were still being considered.

13. On 13 October 2020 the matter was listed for hearing on 24 February 2021.

Submissions for the defendant

14. On the costs application, Mr Butterfield for the defendant, submitted that the fact the Court allowed only a further week from 21 July 2020 for the service of the Prosecution evidence suggests that the Prosecution indicated to the Court that they needed only a one week timeframe to comply; and that setting the matter down for hearing on 13 October 2020 indicated that the Court accepted that the evidence was in a state to proceed.

15. Mr Butterfield submitted that despite this being clearly not the case, and despite the compliance checks referred to, no one (from the Police) chased up the information that was needed to be served on the Defence. And that it was left to the solicitor for the defendant to request by letter dated 11 February 2021 addressed to the LAC North Shore PAC that the defendant be provided with ‘all material which the Police are relying upon to support the application for the AVO as a matter of urgency’. No reply was received.

16. Mr Butterfield submitted that this deviation from case management was inexcusable and caused significant expense to Mr Chu.

Evidence of the Officer in Charge Cons McTaggart

17. The OIC Constable McTaggart gave evidence on the application. He said that he got the order to serve the brief, which, apart from the statements that were ultimately served, contained a large amount of paper correspondence between the defendant and the PINOP as well as a USB containing copies of that correspondence.

18. It was his evidence that around the same time that he was to serve the brief, he was required to do policing duties on the border with Victoria as part of the State’s Covid-19 response, and ‘was set to go south that weekend, so I couldn’t get it served by the required date, so I told my off-sider to serve it’. Under cross examination he identified his off-sider as Constable Mann.

19. He said that he called Constable Mann while he was down at the border, who advised him that that he had got someone else to serve the brief on his behalf – and that he believed it was served.

20. Constable McTaggart said that on his return from the border, some two weeks later, that he asked the officer for evidence that the brief had been served but that Constable Mann said he couldn’t provide it. Under cross examination he said that the officer had got ‘another team’ to serve the brief – the officer couldn’t provide the names of that team – but the brief was no longer in his pigeon hole and the officer believed it was served.

21. Constable McTaggart said that he couldn’t recall if he had received further correspondence from the Defence about outstanding brief items, and said that he possibly had overlooked it.

Submissions for the prosecution

22. It was the submission of the Prosecution that the OIC did the work - that he compiled the brief including the statement of the complainant that indicated further material was relied upon; that he had that further material on a USB stick and had created a printed copy; and that because of his deployment to the border he tasked someone else with the service of the brief; that he expected it to be served; that he was told it was served; but it wasn’t.

23. It was submitted that it is not often that items are not served – that it was a mistake, an oversight, but that it was not inexcusable; it was not as if he didn’t obtain the statement of the complainant. The application should, for these reasons, be refused.

The Law

24. Mr Butterfield for the defendant noted that he was unable to find that s 99A had been judicially considered. I agree that that would appear to be the case.

25. The Second Reading Speech of the Crimes (Domestic and Personal Violence) Amendment (Review) Bill 2016 which introduced the provision indicates that the costs provisions were redrafted:

‘[T]o clarify when costs orders may be made against police officers in response to the Supreme Court’s decision in Redman v Willcocks. The decision considered the complexity that arises between section 99 of the Act, which allows for costs orders against police officers only where the police officer made the application knowing that it contained matter that was false or misleading in a material particular and the provisions in the Criminal Procedure Act 1986 (NSW) which pursuant to sections 211-218, do not require these exceptional circumstances where procedural misconduct is proven.

The bill accordingly creates a standalone provision governing the award of costs in ADVO proceedings, without reference to other legislation. The provision limits costs in ADVO proceedings against police unless the court is satisfied that : (a) The police officer made the application knowing it contained matter that was false or misleading in a material particular, or (b) The police officer has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable.

The new section 99A will also set out certain situations that alone will not give rise to an award of costs against police, such as where the victim does not turn up to court or gives unfavourable evidence’: (Hansard Legislative Council 21/6/16).

26. The Hon Adam Searle for the Opposition in reply to the Second Reading Speech noted that the redrafted s 99A:

‘[Is] narrower than the existing section 99 because the Criminal Procedure Act sets out wider circumstances, in which costs could be ordered, including, for example, for procedural misconduct…These issues were considered in the case of Redman v Willcocks, where the Supreme Court said that the interplay between the Criminal Procedure Act and the principal Act would benefit from clarification by Parliament. The review (the statutory review of the Crimes (Domestic & Personal Violence) Act) records a rise in the number of costs orders against police since that case was determined. It is hoped this new section will resolve that’: (Hansard Legislative Council 21/6/16).

27. The now repealed s 99 of the Crimes (Domestic and Personal Violence) Act provided that:

1. A court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned or the defendant in accordance with this section.

2. Costs are to be determined in accordance with Division 4 of part 2 of Chapter 4 of the Criminal Procedure Act 1986.

3. A court is not to award costs against an applicant who is the person for whose protection an apprehended domestic violence order is sought unless satisfied that the application was frivolous or vexatious.

4. A court is not to award costs against a police officer who makes an application unless satisfied that the police officer made the application knowing it contained matter that was false or misleading in a material particular.

5. Subsections (3) and (4) have effect despite any other Act or law.

28. Relevantly, s 214 of the Criminal Procedure Act which is located in Division 4 of Part 2 of Chapter 4 of that Act provides for a limit on the award of professional costs to an accused person against a prosecutor acting in a public capacity. Section 214 provides that:

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 –

1. that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

2. that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner,

3. that the prosecutor unreasonably failed to investigate (or investigate properly) any relevant matter of which it was aware or ought 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,

4. 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.

2. This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

3. An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9(1) of the Veterinary Practice Act 2003.

Determination

29. It would seem from the Second Reading Speech that the intention of the Legislature was to limit the circumstances in which costs would be awarded under the new legislation, as opposed to when the provisions of the Criminal Procedure Act were available to applications pursuant to the now repealed s 99(2).

30. Subsection (2)(a) of section 99A reproduces subsection (4) of the repealed section 99. The newly introduced subsection (2)(b) where costs can be awarded against an applicant police officer where ’the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable’ appears to owe its language to Davies J who, in Redman v Willcox (2010) 79 NSWLR 226; uses the term ‘inexcusable breaches of case management orders’ and suggests that these are able to be ‘visited with costs orders’ because of the ‘clear words of s 214(1)(b) or s 214(1)(d)’ of the Criminal Procedure Act: [36].

31. His Honour would appear to be saying that where the Court is satisfied that proceedings were conducted by the prosecutor in an improper manner (which is not alleged here) or that other exceptional circumstances relating to the prosecutors conduct of the proceedings exist, that the Court may find ‘an inexcusable breach of case management orders’.

32. In the present matter, there have undoubtedly been failures in case management. The question is whether the OIC’s case management failures, individually and/or collectively, have so deviated from reasonable case management as to be inexcusable, in the ordinary sense of the word as ‘impossible to excuse or justify’: Merriam-Webster Dictionary, online ed; and/or in the sense indicated by Davies J of constituting ‘exceptional circumstances relating to the prosecutors conduct of the proceedings’.

33. This must involve a consideration of whether the failures were intentional or not and their impact on the proceedings and on the defendant.

34. In Redman v Willcox, the learned Magistrate found that the OIC’s failure to undertake the necessary paperwork to enable the withdrawal of proceedings prior to the second days hearing following the PINOP advising the OIC that she no longer held fears, was sufficient to ground s 214(1)(d) stating ‘that it is just and reasonable to award professional costs in favour of Mr Willcocks’. Although not stated, it must be that Her Honour was also satisfied that the circumstances found were ‘exceptional’ as per the provision.

35. In the present matter it is not the case that the procedural failures by the police caused the defendant to incur costs of the appearance on a (further) occasion as in Redman v Willcocks. And it is not the case that the PINOP was unwilling, absent or unfavourable – and that if the OIC had done the ‘appropriate paperwork’ to confirm that the matters were not proceeding that the attendance of the defendant would have been unnecessary. In Redman v Willcocks the learned magistrate formed the view that the PINOP conveying to the OIC that she no longer held fears was ‘an important aspect and would have meant that even if all parties would have given evidence it is unlikely the court would have made orders in favour of Mrs Willcocks.’: at [10].

36. I am unable, in the present matter to form a similar view, given that I have been advised that the Defence representations had been considered and rejected by the Police. The clear inference available is that a decision had been reached that there was sufficient evidence to place the matter before the Court; and that it was a matter for the Court.

37. I am satisfied that the failures in this case were not deliberate. The OIC was called away to do border security work because of Covid-19. He entrusted the service of the complete brief, to another officer. That would seem to be reasonable and standard where the busy work of police, especially this past year during Covid-19, prevented him from serving the brief himself.

38. That other officer further delegated service. He does not know who served the brief, he was unable to provide proof of service, beyond the fact the brief was no longer in his pigeon hole and he advised the OIC of this. Despite this, and despite the Defence requesting the unserved material by letter dated 11 February 2021 – a letter that the OIC cannot recall receiving, no effort was made to check with the Defence that the brief was received. In retrospect the OIC admits that he should have checked with the Defence that they had received the brief.

39. These are serious failures of case management. But what was their effect on the defendant? The defendant responded in detail to the complainant’s allegations in her statement which had been served. He attended court on the allocated hearing date, represented and ready to defend the matter. His legal representative then successfully opposed the Prosecution’s application for adjournment that was sought to cure the failure to serve the missing parts of the brief.

40. It is not the case that the outcome of the Prosecution’s adjournment application was a foregone conclusion, but rather it was an exercise of judicial discretion that ultimately was resolved in favour of the defendant. The decision to refuse the application was made bearing in mind that it has long been recognised by the Courts that case management is not an end unto itself; for example in DPP v West [2000] 48 NSWLR 647 the Court held that the Magistrate in refusing an application to dispense with the requirements for service of the brief pursuant to s 66F(2) of the Justices Act1902 had erred in confining himself to policy disciplinary considerations and in failing to pay regard to the fact that service of the brief had caused no prejudice to the defendant and that refusal to dispense would cause prejudice to the prosecution.

41. An acknowledgement of that principle appears to underlie the fact that s 99A provides that only deviations from reasonable case management that are so significant as to be inexcusable are capable of sustaining a successful costs application. In other words, there is a class of deviation from case management that will not attract the consequences of the provision.

42. In the present case there has been no failure to interview a material witness, or failure to garner relevant evidence, to the detriment of the defendant. There is no deviation from case management that has been relied upon other than the failure to serve part of the brief, the existence of which was disclosed; and to respond to the letter of the Defence of 11 February 2021.

43. Had the Prosecution succeeded in its application to adjourn, the defendant could have sought costs with respect to ‘additional costs’ incurred because of the unreasonable conduct or delays of the prosecution, pursuant to s 99(6) of the Act. The application having been refused, there were no additional costs; the defendant simply prepared his case for hearing. No other prejudice has been advanced.

44. I am of the view the applicant police officer has not so deviated from reasonable case management as to constitute either exceptional circumstances relating to the prosecutors conduct of the proceedings such that it is inexcusable; nor that it is ‘impossible to excuse or justify’.

29. I refuse the application.

Magistrate M McGlynn

8 March 2021

Hornsby Local Court

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Decision last updated: 25 November 2021