Police v Ben Alcott

[2005] NSWLC 17

Local Court of New South Wales

CITATION:	Police v Ben Alcott [2005] NSWLC 17
JURISDICTION:	Criminal
PARTIES:	Police Ben Alcott
FILE NUMBER:
PLACE OF HEARING:	The Downing Centre
DATE OF DECISION:	06/28/2005
MAGISTRATE:	Magistrate V Swain
CATCHWORDS:	Apprehended domestic violence application - Police - Adjournment of Proceedings - Costs on Adjournment
LEGISLATION CITED:	Local Court (Civil Claims) Rules 1988 Rule 2 Crimes Act s 562N Crimes Act 1900 Part 15A
CASES CITED:	Biviano v Natoli 1998 43 NSWLR 695 John Fairfax Publications Pty Ltd v Ryde Local Court, Supreme Court of NSW, 2nd March and 11th April 2005 unreported Grassby v R (1989) 168 CLR 1 Gould v Mt Oxide Mines Ltd (In Liq) (1916) 22 CLR 490 at 517
REPRESENTATION:	Sergeant Huolohan of NSW Police for and on behalf of the complainant Ms J Martin Mr D G Price of Counsel for and with the defendant Mr B Alcott
ORDERS:	I order that the Police pay costs of the day on adjournment of the Defendant in the sum of $2,640.00. To be paid to the Clerk of the Local Court, Level 4 Downing Centre within 28 days for payment out to the Defendant Ben Alcott

11

JUDGMENT

This is an application for costs on an adjournment in an application for an apprehended domestic violence during a cause to show hearing. The application has been made on behalf of the defendant in the proceedings against the Police who acted for the complainant.

HISTORY

A complaint was made by Jenny Martin to the Police. Constable Abbott on behalf of Ms Martin complained that:

“On Thursday 5 August, 2004 the Pinop found a large postal envelope which contained five pages of explicit and intimate photographs of herself inside the envelope. The Pinop recognized the photographs as being those taken by her ex boyfriend(the defendant), Ben Alcott. The photographs were taken approximately two years ago and to the Pinops knowledge the defendant was the only person who had any copies of the photographs. There was also a hand written note with the photographs that the Pinop recognized as the defendant’s handwriting. Upon seeing the photographs the Pinop felt extremely shocked and intimidated. The Pinop then contacted Police in relation to the matter. She then attended Sutherland Police Station where she made a formal complaint and statement in relation to the matter. Te defendant was contacted by telephone and several messages were left for him to contact Police. An appointment was made for the defendant to attend the City Central Police Station on 21/8/04 to be interviewed in relation to the allegations made by the Pinop. The defendant declined to be interviewed but decided to make a formal statement to his barrister, David Price. That statement was then faxed to Police on 21/8/04.

The Pinop and defendant have known each other for seventeen years and have been in an intimate relationship for seven years, commencing in April, 1996. On 20 August, 2003 the Pinop made a formal complaint to Police in relation to intimidating and harassing behaviour she received from the defendant. As a result of that complaint an AVO application was made. The AVO application was later withdrawn at Court and both parties entered into an “undertaking” with the warning from the Magistrate of the day, that if the defendant did not abide by the undertaking that the AVO application would be revived. “

The matter was first listed at Downing Centre Local Court on 8th September, 2004. The Police appeared on behalf of the complainant. On that day however, the defendant had not been served with the summons and the matter was adjourned until 13th October, 2004. An Interim Apprehended DomesticViolence Order against the defendant, protecting Jenny Martin, was made by a Magistrate. It is not necessary for the purpose of this judgment to state the Order in detail.

On 13th October, 2004 the defendant was represented and the matter was listed for “cause to show” hearing on 25th November, 2004. According to the Court papers the matter was re-listed, although the date was 8th December, 2004. There is no notation as to what occurred on 25th November, 2004.

On 8th December, 2004 the presiding Magistrate made the following order:

“Applicant serve evidence on respondent 28 before hearing date. Respondent to serve on applicant 14 days prior to hearing.”

No reasons were recorded on the Court papers why that order was made.

The matter was then adjourned until 17th March, 2005 for hearing. The Interim Order was continued.

On 17th March, 2005 the matter came before me. The orders made by the Magistrate on 8th December, 2004, regarding service of “evidence” by each party, were brought to my attention. The hearing of the application commenced.

During the evidence of the first witness, Mr Price, on behalf of the defendant, objected to evidence sought to be adduced by the prosecution. That evidence concerned events which had been the subject of the Magistrates order of 8th December, 2004 for service of “evidence”. The defence claimed that the Prosecution had not complied with the Magistrates order for service of the “evidence”. This was conceded by the prosecution.

The prosecution argued that the Magistrate’s order for service of “evidence” on 8th December, 2004 was ultra vires. I found that the magistrate did not have the power to order a Brief of evidence.

I granted the defence an adjournment on the basis that the evidence objected to by the defence (concerning the service of a video tape and photos on the husband of the complainant) was highly probative on the issue of fear, and that whilst there was no requirement for the service of a brief of evidence under Part 15A Crimes Act, fairness dictated that the defendant be given an opportunity to defend that matter properly and should be made aware of the case against him.

The matter was adjourned for hearing on 25th May, 2005 and for mention on 1st April, 2005.The Interim Order was continued. No orders for the service of any material was made.

On 1st April, 2005 the defendant was excused. Whilst there was no appearance on behalf of the defendant, the Police Prosecutor confirmed that the additional material sought to be relied upon by the prosecution had been served upon the defence. The hearing date was confirmed.

On 25th May, 2005, as a result of the new material having been served upon the defence, an Apprehended Domestic Violence order was made by consent and without admissions for a period of six months. The order was made against the defendant, protecting Jenny Martin. It is not necessary to detail the order made that day.

An application for costs on the adjournment of 17th March, 2005 was made by the defence against the Police. The application was made in writing and a copy had been provided to the Police Prosecutor. The defence argued that costs on an adjournment can be made in proceedings such as these, pursuant to s 562N(1) which states that:

“Subject to this section:

(a) a court may, in proceedings under this Part, award costs to the complainant or the defendant, and

(b) such costs are to be determined in accordance with Division 4 of part 2 of Chapter 4 of the Criminal Procedure Act, 1986.”

The Prosecution opposed the application, in short relying on the provision of s. 562N (3) which provides that:

“ A court is not to award costs against a police officer who makes a complaint unless satisfied that the police officer made the complaint knowing it contained matter that was false or misleading in a material particular. This subsection has effect despite any other Act or law.”

DISCUSSION

To determine this application it is necessary to step back further and consider the following:

1. Did the Magistrate have power to make the orders for service of “evidence” on 8th December, 2004?

2. What is the effect, if any, of the non-compliance with those orders by the prosecution?

3. Do costs on adjournment as provided in s. 216 Criminal Procedure Act apply to proceedings under Part 15A Crimes Act?

1. DID THE MAGISTRATE HAVE POWER TO MAKE THE ORDERS FOR SERVICE OF ‘EVIDENCE’ ?

Under Part 15A Crimes Act, there is no provision for the service of a brief of evidence, like there is for example, for summary criminal proceedings pursuant to s.183 Criminal Procedure Act, 1984.

In BIVIANO –V- NATOLI 1998 43 NSWLR 695, Mr Justice Beazley JA ….. stated that “Proceedings under Pt 15A are civil in nature – they are initiated by a complaint and the standard of satisfaction required before an order can be made is the civil standard.” (p. 699)

In JOHN FAIRFAX PUBLICATIONS PTY LTD –V- RYDE LOCAL COURT, Supreme Court of N.S.W, 2nd March and 11thApril, 2005, unreported, His Honour, Mr Justice Spigelman CJ stated “The legislative scheme for apprehended violence orders serves a range of purposes which are quite distinct from the traditional criminal or quasi-criminal jurisdiction of the Local Court. The legislative scheme is directed to the protection of the community in a direct and immediate sense, rather than through mechanisms such as deterrence. Individuals can obtain protection against actual or threatened acts of personal violence, stalking intimidation and harassment. Apprehended violence orders constitute primary means in this State of asserting the fundamental right to freedom from fear. The objects served by such orders are quite distinct form those that are served by civil adversarial proceedings or proceedings in which an arm of the State seeks to enforce criminal law.” (Para 20)

His Honour went on to say (Para 38), “The Local court is a statutory court, and as such, has powers that are conferred expressly or are necessarily to be implied from the express conferral of powers. The test of implication was stated by the High Court in GRASSBY –v- R (1989) 168 CLR 1 as a test of necessity. Dawson J., with whom the other members of the Court relevantly agreed, said at 16:

…[N]otwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise…”

His Honour added at 17:

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be derived by implication from statutory provision conferring particular jurisdiction.” “

In this case, the prosecution sought to adduce evidence which was not contained in the original complaint. The Magistrate on 8th December 2004 accordingly made orders for the service of material or “evidence” by the Police upon the defendant 28 days before the hearing date and ordered the defence to serve any material they sought to rely upon on the Police 14 days before the hearing. Whilst the reason for such an order was not recorded on the Court papers, it appears this was done to facilitate the hearing of the matter. Compliance with the order would furnish each party with material sought to be relied upon in making each case. There would be no surprises for either party.

Part 15A is silent on this point. There are no sections for the provision by either party of particulars or evidence upon which either party may seek to rely. Nor are there any provisions preventing such orders being made. These proceedings are civil proceedings however.

By analogy, in its civil claims jurisdiction, the Local has such power. See for example Local Court (Civil Claims) Rules 1988 Part 8 Rule 2 which says inter alia:

A party lodging a relevant document shall include in the document such

particulars of any claim, defence or other matter as are necessary to enable the opposite party to identify the case the opposite party is required by the document to meet.

The purpose of such a rule is to ensure that each party to a proceeding knows the case it has to meet so as to avoid surprises at the hearing. “Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it” (GOULD –V- MT OXIDE MINES LTD (IN LIQ) (1916) 22 CLR 490 at 517

Of course, this case is not a civil claim, but the same issues of fairness to each party to the proceedings apply. In this case, the Magistrate ordered that each party provide “evidence” to the other, just as in any civil matter, so that each party would know the case it had to meet at the hearing.

The Objects of Part 15A are set out in s. 562AC.

S. 562AC(2) states:

“This Division aims to achieve its objects by:

(a) empowering courts to make apprehended domestic violence orders to protect people from domestic violence, and

(b) ensuring that access to courts is as speedy , inexpensive, safe and simple as is consistent with justice

(4) A court that, or person who, exercises any power conferred by or under this part in relation to domestic violence must be guided in the exercise of that power by the objects of this Division.”

At the last hearing on 17th March, 2005, I held that the Magistrate did not have the power to make orders for the service of a brief. I am still of that view.

However, the Magistrate did not order the service of a Brief. The Magistrate ordered both parties to serve “evidence” (which can be taken as particulars) upon each other, as is done in other civil proceedings. In doing so, the Magistrate exercised his or her power to ensure fairness to both parties. The exercise of that power is in accordance with the implied power conferred on a Local Court to conduct proceedings under Part 15A; that proceedings be conducted with fairness and with justice and which is consistent with the objects of this Division of the Crimes Act.

Accordingly, the Magistrate did have the power to make the orders which were made on 8th December, 2004.

2. WHAT IS THE EFFECT IF ANY, OF NON-COMPLIANCE WITH THE ORDER BY THE POLICE?

The Police did not comply with the order of the Magistrate of 8th December, 2004. This is not disputed by the Police.

By not complying, the defendant was placed at a disadvantage when the Police sought to adduce evidence that was not contained in the complaint. The defendant was not aware of the entire case being made against him and therefore was unable to meet it.

The effect of the Police failure to comply the order was to place the defendant in an unfair position.

Accordingly, I adjourned the hearing of the application so that the defendant could be made aware of the case against him.

3. DO COSTS ON ADJOURNMENT AS PROVIDED BY S. 216 CRIMINAL PROCEDURE ACT APPLY TO PROCEEDINGS UNDER PART 15A CRIMES ACT, 1900?

At the conclusion of proceedings on 17th March, 2005, the Police were put on notice that the defence would apply for costs on the adjournment at the next hearing.

On 25th May, 2005, the defence made an application for costs on the adjournment of 17th March, 2003, pursuant to s. 562N Crimes Act. The defence argued that s. 562N(1) applies. That states:

(1) “Subject to this section:

(a) a court may, in proceedings under this Part, award costs to the complainant or the defendant, and

(b) such costs are to be determined in accordance with Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act, 1986.”

The defence argued that accordingly, the provisions of s. 216 of the Criminal Procedure Act, 1984, apply. That section states:

“s. 216 COSTS ON ADJOURNMENT

(1) A court may in any summary proceedings, at its discretion or on the application of a party, order that one party pay costs if the matter is adjourned.

(2) An order may be made only if the court is satisfied that the other party has incurred additional costs because of the unreasonable conduct or delays of the party against whom the order is made.

(3) The order must specify the amount of costs payable or may provide for the determination of the amount at the end of proceedings.

(4) An order may be made whatever the result of the proceedings. “

The defence argued that the matter was adjourned because of the unreasonable conduct of the Police in failing to comply with the order of the Magistrate of 8th December, 2004 and that as a result the defendant incurred additional costs. The defendant was represented by Counsel.

The defence also stated that the Local Court has power to order costs pursuant to s. 62 Local Courts Act, 1982. This is not the case. Section 36 states inter alia, that Part 6 of the Act does not apply to proceedings under Part 15A Crimes Act.

The application for costs on the adjournment was opposed by the Police and argued that day. The Police argued that costs can only be awarded against Police in accordance with s. 562N(3) which states:

“(3) A court is not to award costs against a police officer who makes a complaint unless satisfied that the police officer made the complaint knowing it contained matter that was false or misleading in a material particular. This subsection has effect despite any other Act or law.”

The Police argued that costs against them could not be awarded because the requirements of the sub-section had not been made out, that is, that the complaint was not false or misleading in a material particular. A domestic violence order had been made, albeit by consent.

Does s. 562N(1) (and therefore costs on adjournment under s. 216 Criminal Procedure Act, 1986) apply to Police or are they exempt?

Firstly, proceedings under Part 15A are summary proceedings, being conducted in the Local Court.

The last sentence of s. 562N(3) states “This subsection has effect despite any other Act or law”. Does this mean that s. 216 Criminal procedure Act does not apply to Police?

A determination under s. 562N(3) whether or not a “Police officer made the complaint knowing it contained matter that was false or misleading in a particular” can only be made by a Court at the conclusion of the complainants case at the earliest, or at the end of the hearing of all the evidence including the defendants case.

Issues on adjournments must therefore be separate if only because they occur, as in this case, before the matter is heard to finality.

A finding that costs can only be made against Police in the limited situation provided by S. 562N(3) has the effect that Police are exempt from any sanction (as provided by an order for costs under s. 216 Criminal Procedure Act, 1984) in their conduct of a complainants case under Part 15A. Such a finding would mean that a defendant would have no recourse or remedy against the Police for any unfair or unreasonable conduct on the part of the Police in the course of a hearing. The objects of the Division as provided in s.562AC, that “access to courts is as speedy, inexpensive, safe and simple as is consistent with justice” would not be served if that were the case.

Further, s. 562N (1) states that costs can be awarded to a defendant.

Costs on adjournment must therefore apply to Police in proceedings under Part 15A and I find accordingly.

CONCLUSION

I find that the conduct of the Police in not complying with the Magistrates Order of 8th December, 2004 amounts to unreasonable conduct. Such conduct placed the defendant in an unfair position. An adjournment was granted so that the defendant could be made aware of the whole case against him. That adjournment caused the defendant to incur additional costs. The additional costs has been quantified in the sum of $2,640. The Police, when given an opportunity to be heard in relation to the sum, did not argue quantum.

ORDER

I ORDER THAT THE POLICE PAY COSTS OF THE DAY ON ADJOURNMENT OF THE DEFENDANT IN THE SUM OF $2,640.00. TO BE PAID TO THE CLERK OF THE LOCAL COURT, LEVEL 4 DOWNING CENTRE WITHIN 28 DAYS FOR PAYMENT OUT TO THE DEFENDANT, BEN ALCOTT.

Magistrate V Swain