NSW Police v Pepper

[2016] NSWLC 15

Local Court

New South Wales

Medium Neutral Citation:	NSW Police v Pepper [2016] NSWLC 15
Hearing dates:	8 August 2016
Decision date:	23 August 2016
Jurisdiction:	Criminal
Before:	Heilpern LCM
Decision:	The papers are marked “no jurisdiction”. The prosecution is to pay the defendant’s costs in the sum of $990 within 14 days.
Catchwords:	CRIMINAL PROCEEDINGS – prosecution statute barred - disposition of proceedings – papers to be marked ‘no jurisdiction’ - power to award costs where proceedings invalid
Legislation Cited:	Criminal Procedure Act 1986, ss 116, 117, 179, 213, 214 Justices Act 1902 (rep), s 81 Local Court Act 2007, s 69
Cases Cited:	DPP v Cakici [2006] NSWSC 454 DPP v Goben [1999] NSWSC 696 DPP (NSW) v McDonald; DPP NSW) v Maitland [2015] NSWLC 7 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 NSW Police v JG (No 2) [2013] NSWLC 32
Category:	Costs
Parties:	NSW Police (prosecution) Kirsty Louise Pepper (defendant)
Representation:	Solicitors: Ms Millar for the prosecution Mr Riley for the defendant
File Number(s):	2016/168344

Judgment

Reasons for decision

1. On 1 June 2016, NSW Police served a Court Attendance Notice (CAN) on the defendant, for the offence of driving under the influence of certain prescription drugs. The incident for which the CAN was issued occurred on 29 November 2015. The CAN was created and filed on 3 June 2016.

2. It is not in dispute that the prosecution was statute barred due to s 179(1) of the Criminal Procedure Act1986.

3. The CAN required the attendance of the defendant at Lismore Court on 11 July 2016, and she sought legal advice from Mr Riley, who appeared at court to represent his client on the set date. The proceedings were adjourned for representations to 25 July 2016. On 22 July 2016, Mr Riley wrote to the police, noting that the CAN was issued out of time and seeking that the proceedings be withdrawn. On 25 July 2016, Mr Riley again appeared for his client, and the matter was adjourned solely on the issue of costs to 8 August 2016.

4. After hearing submissions I adjourned this matter on the question of costs.

5. There are three issues to be determined. First, what is the appropriate dispensation of the proceedings? Second, does this court have the power to make an order for costs? Third, if the court does have the power, should an order for costs be made?

Authorities and Legislation

6. The key legislative provision is s 213(3)(b) of the Criminal Procedure Act (my emphasis):

213 When professional costs may be awarded to accused persons

(1) A court may at the end of summary proceedings 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 the amount that the Magistrate considers to be just and reasonable.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.

(5) The order must specify the amount of professional costs payable.

7. It is important to note the Courts Legislation Amendment Act2006 amended s 213. The second reading speech and the explanatory memoranda do not assist in the interpretation of that section.

8. In DPP v Goben [1999] NSWSC 696 the Local Court was dealing with informations agreed to have been invalid. The magistrate dismissed the proceedings and awarded costs in favour of the defendant. The Supreme Court found that the Magistrate erred in dismissing the proceedings, and that the order ought to have been one of “No Jurisdiction - Struck Out”. Further, the Supreme Court found that dismissing the proceedings was a prerequisite for ordering costs under s 81 of the Justices Act 1902, and as they could not be dismissed, there was no power to make order for costs.

9. The relevant portion of s 81 of the Justices Act in force at that time was as follows:

(1A) When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order that the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable.

10. Section 213 of the Criminal Procedure Act 1986 was apparently amended to overcome this decision. This contention is raised by Luke Brasch of counsel in a paper delivered to the Legal Aid Commission in 2012 [1] , titled “Costs in Criminal Cases”:

Section 213 (3)(b) provides for the awarding of costs in cases where the “proceedings are for any reason invalid.” This amendment overcomes the problem that arose in DPP v Goben [1999] NSWSC 696. In Goben, the informations were found by the Magistrate to be invalid as they failed to include an element of the offences. The magistrate proceeded to dismiss the charges and award costs to the successful defendant. The DPP sought an order in the nature of certiorari and the matter was heard by Justice James in the Supreme Court. His Honour agreed that the informations were defective and consequently the charges could not be dismissed. The consequence of that was that the magistrate did not have jurisdiction to award costs.

…

As I have already stated section 213(4) overcomes the problem of Goben. For completeness it is noted that in DPP v Cakici [2006] NSWSC 454 Johnson J at [38] explicitly states that section 213(4) overcomes the difficulty caused by the decision in Goben.

1.

11. In Cakici, the magistrate had determined that a CAN was defective and dismissed the proceedings. The Supreme Court found that the CAN was not defective and that the court did have jurisdiction to hear the matters. Further, the Supreme Court found that the papers should have been marked “No Jurisdiction” (at [34] to [36]).

12. The court found:

37 … I note that the practical context in which this issue was sometimes litigated in earlier cases, such as Goben, related to the power of the Local Court to order costs against a prosecutor in summary proceedings. In Goben, at paragraph 51, it was held that such a costs order could not be made unless a valid information was dismissed.

38 Section 213(4) Criminal Procedure Act 1986 expressly overcomes that past difficulty in that it permits a Local Court to order a prosecutor in summary proceedings to pay costs if the matter is dismissed, because the matter is withdrawn or the proceedings are for any reason invalid.

39 The appropriate order in this case, in my view, if the magistrate was correct in his conclusion (which he was not), was one of “No jurisdiction”.

13. I note that for all relevant purposes s 213(3) as it presently reads is the same as s 213(4) when Cakici was determined.

14. There are also two relevant Local Court reported judgments. In NSW Police v JG (No 2) [2013] NSWLC 32, Magistrate Buscombe had held that an application for a forensic procedure order was invalid and a nullity, and marked the application "no jurisdiction". The relevant statutory provision governing costs in application proceedings was s 69 of the Local Court Act2007 which provides as follows:

(1) The Court may award costs in application proceedings at its discretion and may determine by whom, to whom and to what extent costs are to be paid in or in relation to application proceedings.

15. After an exhaustive consideration of the authorities, Magistrate Buscombe concluded at [27]:

27 … In my opinion, by implication, the power to award costs in application proceedings extends to hearings where the issue of whether or not there is a valid application before the Court is determined. I arrive at that conclusion for the following reasons. The phrase “in application proceedings” is a phrase of generality and width and should be given a wide interpretation. In my opinion the jurisdiction of this Court in application proceedings extends to determining whether or not it has jurisdiction to consider a particular application. There can be no doubt that this Court has jurisdiction to consider an application under the Crimes (Forensic Procedures) Act which is properly brought. In my opinion “in application proceedings” this Court has implied power to consider whether its jurisdiction has been properly invoked.

28 To hold otherwise would work an apparent injustice. If the Court held that there was a valid application after hearing argument, there could be no doubt that it had power to award costs against the respondent. In my opinion, it would be unjust to give the provision a construction that would deny a successful respondent the ability to seek a costs order in such circumstances, where if the applicant had been successful in the argument, a power to award costs existed. It cannot be reasonably thought that the legislature intended such an unjust result when enacting the provision.

16. The second decision in the Local Court is Director of Public Prosecutions (NSW) v McDonald, Ian; Director of Public Prosecutions (NSW) v Maitland, John [2015] NSWLC 7. In that case Magistrate Grogin determined as follows:

45 I find that the purported prosecutions were invalid as there was no authority for the CANs to be issued.  There is therefore nothing before this Court to be withdrawn or dismissed.

46 As there is no valid information or matter before the Court, there is no basis or jurisdiction for making a costs order pursuant to ss 117(1)(b) or (d) of the Act as submitted on behalf of the defendants.

47 The papers will be marked ‘No jurisdiction’.

17. It is clear that the court was considering costs only under ss 116-117 of the Criminal Procedure Act, which relate to committal proceedings and is markedly different to s 213 quoted above. In particular, the committal costs provisions make no reference to extending costs orders where proceedings are ‘invalid’.

The prosecution submissions

18. The prosecution submits that the court does not have the power to dismiss the matter on the authority of Cakici. Section 213(3) requires, as a prerequisite to an order for costs, that the proceedings be dismissed. As the court has no power to dismiss, then it has no power to make an order for costs.

The defence submissions

19. The defence submits that on a correct reading of s 213, if the proceedings are found to be invalid, whatever the correct notation on the court papers, the court has the power to order costs.

Resolution of the Jurisdictional Issue

20. This is a case requiring application of the rules of statutory interpretation. The prosecution has applied a literal interpretation of the section. They are correct that if such an interpretation is applied, the court cannot make an order for costs because it has no power to dismiss the proceedings.

21. In my view, the strict application of a literal interpretation of the s 213 is not to be preferred. There are five reasons for this.

22. First, although there is no secondary source such as the second reading speech, it is the clear intention of parliament that if proceedings are invalid, the court may make an order for costs. The court in Cakici specifically recognised the section as ‘overcoming’ the rule in Goben.

23. Second, it would be an absurdity for the prosecutions literal interpretation to stand. If that were the case, then no costs award could ever be made against the prosecution for invalid information because it cannot be ‘dismissed’. What work then would s 213(3)(b) have to do? An application of the ‘golden rule’ approach is permissible to avoid an absurd result: Kingston v KeprosePty Ltd (1987) 11 NSWLR 404.

24. Third, in my view the word ‘dismissed’ in s 213 is somewhat elastic. In Goben at [30], [47], [48] and [50] there are examples where the courts have used the words ‘dismissed’ in the colloquial but not legal sense to denote the dispensation of an invalid information. With reference to those decisions James J found at [50]:

It is clear that their Honours were using the word ‘dismiss’ in the sense of quashing proceedings which were incompetent and were not using the word in the sense of dismissing proceedings pursuant to a statutory power to dismiss proceedings which were competent.

25. The papers may be correctly marked as ‘no jurisdiction’, however to all but the lawyers, that is simply a choice of words. The defendant walks out, the specific prosecution is at an end, and the papers are filed, just as if there were an acquittal after a lengthy hearing.

26. Fourth, there are good public policy reasons for the defence interpretation to be preferred. In costs applications, the court needs to keep in mind that where criminal charge is commenced the full power of the state is brought to bear against an individual. The consequences of not obtaining and paying for legal advice can be significant, including ultimately imprisonment. In the absence of clear, unambiguous legislative intent the court ought to be wary of applying costs limitations in such a manner that provides a bar to recovery of those costs in appropriate cases. This is in accord with NSW Police v JG above.

27. I am mindful that the hurdle of showing some misfeasance still remains in s 214 of the Criminal Procedure Act, as discussed below. Further, I am mindful that whilst in this case the error was discovered early, in some cases the invalidity is only discovered after a hearing has commenced. The costs in such cases could be significant and crippling.

28. Accordingly, I will mark the papers ‘No Jurisdiction’. In my view, there is a power to make an order for costs under s 213 where the proceedings are invalid.

The s 214 considerations

29. The defence contends that pursuant to s 214(b) the proceedings were initiated without reasonable cause. A tax invoice was tendered in the sum of $990. No issue was taken with the quantum by the prosecution. Thus, the prosecution made no submissions on the issue of reasonableness. I am satisfied that it is inherently unreasonable to institute proceedings that are out of time and thus cannot succeed. The proceedings should not have been commenced without checking the dates, and it should not have been incumbent on the defendant to incur costs to point that out. The defendant ought to be compensated the rather modest amount sought.

Discretion

30. The prosecution have not tendered the allegation of fact that gave rise to the charge. In those circumstances, it is not possible to make any assessment of the extent to which Ms Pepper has, by virtue of a police error, got away with a serious or dangerous crime. In the end, costs are discretionary and in an appropriate case, it may be that the court declines to make an order for costs where justice demands. However, given the evidence before the court on this occasion, I am inclined to make an order for costs.

Orders

31. The papers are marked “No Jurisdiction”.

32. The prosecution is to pay the defendant’s costs in the sum of $990 within 14 days.

Magistrate D Heilpern

23 August 2016

Lismore Local Court

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Endnote

Decision last updated: 21 September 2016