R v AP

[2020] NSWDC 676

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v AP [2020] NSWDC 676

Hearing dates:

23 September 2020

Decision date:

22 October 2020

Jurisdiction:

Criminal

Before:

Yehia SC DCJ

Decision:

I make an order that the Applicant be awarded the legal costs of his appeal, with the costs to be agreed between the parties.

Catchwords:

CRIMINAL PROCEDURE — Costs — Crimes (Appeal and Review) Act 2001 (NSW) — limit on costs awarded against public prosecutor following successful appeal against conviction — whether s 70(1)(a) requires deliberate or intentional impropriety in the conduct of an investigation — whether obtaining of evidence of an alleged offence by police not acting in lawful exercise of duty, or in consequence of an unlawful exercise of police powers, can constitute improper investigation for the purposes of s 70(1)(a)

Legislation Cited:

Crimes (Appeal and Review) Act (NSW), ss 28(3), 70(1)(a)

Criminal Procedure Act 1986 (NSW), s 214(1)

Law (Enforcement Powers and Responsibilities) Act 2002 (NSW), s 206

Cases Cited:

Ian Campbell & 4 Ors v Director of Public Prosecutions (NSW) [2009] NSWSC 973

R v DB; R v AP [2020] NSWDC 472

The Queen v Byrnes and Hopwood (1995) 183 CLR 501

Category:

Costs

Parties:

AP
Director of Public Prosecutions

Representation:

Legal Aid NSW
Office of the Director of Public Prosecutions

File Number(s):

2019/00112829

Judgment

1. The Applicant seeks an order that he be awarded the legal costs of his appeal on the grounds specified in s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW).

2. On 5 August 2020, I heard the Applicant’s appeal against findings of guilt by the Children’s Court in respect of offences of assaulting a police officer in the execution of their duty and resisting a police officer in the execution of their duty: see R v DB; R v AP [2020] NSWDC 472.

3. On 24 August 2020, I delivered judgment in favour of the Applicant, upholding the appeal in respect of each offence, and setting aside the orders of the Children’s Court Magistrate.

4. In upholding the appeal, I made the following findings:

1. That at the time of the alleged offences, the Applicant was not lawfully detained pursuant to s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’) as had been contended by the prosecution: R v DB; R v AP [2020] NSWDC 472 at [108]. The prosecution had therefore failed to prove an element of the offences, that is, that the police officers were acting in the lawful execution of their duty at the relevant time.

2. That the conduct constituting the alleged offences stemmed from the Applicant’s unlawful detention by police, and that the evidence of his conduct was therefore obtained in consequence of an impropriety by police: at [116], referring to Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151; Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219.

5. I made a further determination that, had I not been of the view that the police officers were not acting in the lawful execution of their duty during the period of unlawful detention, I would have excluded the evidence pursuant to s 138 of the Evidence Act 1995 (NSW) because it was obtained in consequence of an impropriety or contravention of law: at [141].

Applicant’s Submissions

6. In seeking an award of costs, the Applicant relies on the grounds set out in s 70(1)(a) of the Crimes (Appeal and Review) Act 2001, namely, that the investigation into the alleged offence was conducted in an unreasonable or improper manner.

7. He relies on my findings that police had committed two improprieties: an unlawful arrest of the Applicant purported to be pursuant to s 99 LEPRA, which was conceded by the prosecution, and the period of unlawful detention referred to above, purportedly pursuant to s 206 LEPRA (‘the second period of detention’).

8. The Applicant submits that the observations and recordings made by police during the second period of detention constituted the entirety of the investigation into these offences.

9. Relying upon my finding that the evidence was obtained in consequence of an impropriety by police, the Applicant submits that the investigation into the charges was therefore conducted improperly.

10. The Applicant further submits that the costs incurred by the Applicant would never have arisen had it not been for the unlawful conduct of police.

Respondent’s Submissions

11. The Crown’s ultimate submission is that the Applicant has not proved that the investigation into the matter was conducted in an ‘improper manner’ for the purposes of s 70(1)(a) and that the application should be dismissed.

12. In written submissions, the Crown contends that a determination as to whether the investigation of the matter was undertaken in an ‘improper manner’ must be informed by the purpose of the legislation, and that the meaning of the term ‘improper’ must not be conflated with the use of the term in other contexts.

13. The Crown submits that it is instructive to consider s 214(1) of the Criminal Procedure Act 1986 (NSW), which is drafted in similar terms. The Crown refers to the Second Reading Speech for amendments to the Justices Act 1902 (NSW) inserting the predecessor section to s 214, now repealed, in which it was stated that ‘the award of costs is regarded a means of penalising or discouraging any improper or unreasonable behaviour on the part of the informant or the prosecution’.

14. The Crown relies on passages from my judgment on the appeal, in which I remarked that the impugned actions of the police in the present case were inadvertent (at [138]) rather than deliberate or reckless (at [135], [137]).

15. The Crown submits that this must have significance in assessing whether the investigation was conducted in an improper manner for the purposes of determining whether an order for costs should be made. It is submitted there was no sinister or malevolent intent associated with the actions of the police, and that, if the object of s 70(1)(a) was to penalise or discourage improper behaviour by police, there must be an element of moral culpability underpinning the conduct constituting the impropriety. It is submitted that the police in the present matter were motivated in their actions to protect the intoxicated young person.

Legal Principles

16. This Court’s power to award costs following an appeal is conferred by s 28(3) of the Crimes (Appeal and Review) Act:

28 Miscellaneous Powers

...

(3) Subject to section 70, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

17. Section 70 circumscribes the Court’s discretion to make an award of costs against a public prosecutor. The effect of the provision is that, where an appeal succeeds against a conviction in summary proceedings initiated by a public prosecutor, the appellant is not entitled to costs as a matter of course. It must be shown that there was unreasonable or improper conduct in the investigation of the matter, or in the initiation or conduct of the proceedings in the Local Court, or an unreasonable failure to investigate relevant matters, or that there are other exceptional circumstances relating to the prosecutor’s conduct of the proceedings.

18. The section is set out as follows:

70 Limit on costs awarded against public prosecutor

(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied—

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or

(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or

(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter—

(i) that the prosecutor was or ought reasonably to have been aware of, and

(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.

19. The Applicant relies solely on s 70(1)(a).

20. In written submissions, the Applicant relies on the authority of Ian Campbell & 4 Ors v Director of Public Prosecutions (NSW) [2009] NSWSC 973 (‘Campbell v DPP’). In that case, the Court held that an investigation had been conducted improperly in circumstances where police had failed to comply with an obligation imposed by delegated legislation to notify the Aboriginal Legal Service the applicants were being detained. Police conducted interviews with the applicants whilst they were detained, and those recorded interviews formed a significant part of the evidence against them.

21. Justice Hidden held that, by failing to comply with the obligation to notify the Aboriginal Legal Service, ‘police had deliberately failed to comply with an important provision for the protection of vulnerable persons in their custody’: at [13]. His Honour found that the investigation had therefore been ‘improper’ in the relevant sense, such as to bring it within the scope of s 70(1)(a), and costs orders were made in favour of the applicants.

Determination

22. I do not accept the Respondent’s submission that there must be an element of moral culpability, or deliberate or intentional impropriety, in order for costs to be awarded on the grounds set out in s 70(1)(a).

23. In considering the meaning of the term ‘improper’ in Campbell v DPP, Hidden J referred to the judgment of The Queen v Byrnes and Hopwood (1995) 183 CLR 501 (at [10]). At 514–5, the joint judgment of the High Court stated:

Impropriety does not depend on an alleged offender’s consciousness of impropriety. Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case.

24. I have not been referred to any material which assists in ascertaining the point at which an investigation commences. The term ‘investigation’ is not defined in LEPRA, nor do the provisions of the Crimes (Appeal and Review) Act provide assistance. The Macquarie Dictionary defines ‘investigation’ as ‘a searching inquiry in order to ascertain facts; a detailed or careful examination’.

25. What was it that constituted the investigation into the offences of assault and resist police in this case? There were no enquiries, interviews or other formal investigative procedures undertaken to produce evidence in support of the allegations following the incident itself.

26. What was relied upon as the evidence constituting the offences was the footage captured by the police body worn camera and the eyewitness evidence of the police officers. That evidence – the obtaining of which constituted the only steps taken by police which could be characterised as the investigation of the allegations – was obtained at a time when either (i) the police were not acting in execution of duty; or (ii) the evidence was obtained in consequence of an impropriety.

27. In those circumstances, it follows that the investigation (such as it was in this case) was conducted in an improper manner. I am persuaded that the impugned actions of the police who detained the Applicant can be relevantly characterised as an ‘improper investigation’ for the purposes of s 70(1)(a).

28. Accordingly, the application is granted. I make an order that the Applicant be awarded the legal costs of his appeal, with the costs to be agreed between the parties.

Amendments

06 November 2020 - Amended to add catchwords.

Decision last updated: 06 November 2020