Pierre Sukkar v Regina (No 2) - [2016] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: Pierre Sukkar v Regina (No 2) [2016] NSWDC 154
Hearing dates: 25 July 2016
Date of orders: 01 August 2016
Decision date: 01 August 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1. I order that the prosecution pay the applicant’s costs of the appeal and the Local Court proceedings.
2. I have not heard any submissions as to the quantum of the costs sought, or the date by which I should order payment of the costs in accordance with section 72 of the Act.
3. I will hear the parties on those issues.

Catchwords: CRIMINAL LAW – assault – assault police occasioning actual bodily harm
PROCEDURAL – successful conviction appeal – investigation conducted in unreasonable or improper manner – test – balance of probabilities
COSTS – appellant costs – discretion to award - quantum
Legislation Cited: Crimes (Appeal and Review) Act 2001 ss 70(1)(a), 70(1)(b), 70(1)(c), 70(1)(d)
Security Industry Act 1997 ss 4, 35, 36
Cases Cited: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA
RB v DPP [2015] NSWSC 248
Category: Costs
Parties: Pierre Sukkar (Applicant)
Regina (Respondent)
Representation:
Counsel:
Mr D Dalton SC with Mr D Carroll (Applicant)
Solicitors:
Mallinson and Rake Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2013/00264171

Judgment

Pierre Peter Sukkar (the applicant) seeks an order for costs following his conviction appeal being allowed on 21 August 2015.
Section 70(1)(a) Crimes (Appeal and Review) Act 2001 (the Act) contains a power to award costs following a successful conviction appeal if the Court is satisfied that the investigation was conducted in an unreasonable or improper manner.
The applicant contends that the conditions provided for in section 70(1)(a) are satisfied and that I should exercise my discretion to award costs in his favour. By agreement between the parties, if the current application is unsuccessful the applicant intends to make further application pursuant to the provisions of section 70(1)(b)-(d) of the Act, to be argued later.
The applicant relies on the material tendered in the appeal, my judgment and an affidavit of Hayley Rake (the applicant’s solicitor) sworn 22 July 2016.

The relevant law

Section 70(1)(a) of the Act must focus on the investigation. In relation to the failure to call a witness or take a statement from a witness the applicant for costs does not need to establish what that witness would have said. If there are 5 eye-witnesses to an incident and the police interview and call only one and the prosecution fails then the sub-section may be satisfied: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA 13 at [20]-[21].
The inquiry involved in section 70(1)(a) is wider than section 70(1)(c) of the Act. The extent of the investigation or the lack of investigation may be the basis for the finding that the investigation was either unreasonable or improper: RB v DPP [2015] NSWSC 248.

Factual background

On 30 August 2013 the applicant and the co-accused Mr Nassif…

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.

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Details

Case: [2016] NSWDC 154
Decision Date: 01 August 2016

CaseChat Overview and Summary

Pierre Sukkar appealed his conviction for assaulting police officers, occasioning actual bodily harm. The appeal was heard in the Supreme Court of New South Wales, Court of Criminal Appeal. The appeal was based on the argument that the investigation that led to his conviction was conducted in an unreasonable or improper manner. The court was required to decide if the investigation was flawed to such an extent that it affected the safety of the conviction. The court also needed to decide if the appellant was entitled to costs for the appeal and the proceedings in the Local Court.

The court found that the investigation was conducted in a manner that was unreasonable and improper. The investigation was flawed as it failed to properly consider and test crucial evidence that was available at the time. This was sufficient to raise a reasonable doubt about the safety of the conviction. As a result, the conviction was quashed. The court also found that the appellant was entitled to costs for the appeal and the proceedings in the Local Court. The prosecution was ordered to pay the appellant's costs of the appeal and the Local Court proceedings. The court did not specify the quantum of the costs or the date by which the costs should be paid. The court indicated it would hear further submissions on these issues.

Orders

Orders of the court

1. I order that the prosecution pay the applicant’s costs of the appeal and the Local Court proceedings.

2. I have not heard any submissions as to the quantum of the costs sought, or the date by which I should order payment of the costs in accordance with section 72 of the Act.

3. I will hear the parties on those issues.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Pierre Sukkar v Regina (No 2) [2016] NSWDC 154
Hearing dates:	25 July 2016
Date of orders:	01 August 2016
Decision date:	01 August 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1. I order that the prosecution pay the applicant’s costs of the appeal and the Local Court proceedings. 2. I have not heard any submissions as to the quantum of the costs sought, or the date by which I should order payment of the costs in accordance with section 72 of the Act. 3. I will hear the parties on those issues.
Catchwords:	CRIMINAL LAW – assault – assault police occasioning actual bodily harm PROCEDURAL – successful conviction appeal – investigation conducted in unreasonable or improper manner – test – balance of probabilities COSTS – appellant costs – discretion to award - quantum
Legislation Cited:	Crimes (Appeal and Review) Act 2001 ss 70(1)(a), 70(1)(b), 70(1)(c), 70(1)(d) Security Industry Act 1997 ss 4, 35, 36
Cases Cited:	Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA RB v DPP [2015] NSWSC 248
Category:	Costs
Parties:	Pierre Sukkar (Applicant) Regina (Respondent)
Representation:	Counsel: Mr D Dalton SC with Mr D Carroll (Applicant) Solicitors: Mallinson and Rake Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2013/00264171