R v Mikhaylova - [2024] NSWDC 90

District Court

New South Wales

Medium Neutral Citation: R v Mikhaylova [2024] NSWDC 90
Hearing dates: 19 March 2024
Date of orders: 22 March 2024
Decision date: 22 March 2024
Jurisdiction: Criminal
Before: D Barrow SC DCJ
Decision:
Appeal be dismissed for want of jurisdiction

Catchwords:
COSTS APPLICATION – Criminal Procedure Act 1986 (NSW) – applicant’s application for costs refused in the Local Court
JURISDICTION - jurisdiction of District Court to consider appeal where substantive charges dismissed in the Local Court

Legislation Cited:
Costs in Criminal Cases Act1967 (NSW), s 213
Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, ss 11, 12, 23, 28, 70
Criminal Procedure Act1986 (NSW), ss 211, 212, 213, 214
District Court Act1973 (NSW), s 166
Justices Act 1902 (NSW), ss 120, 122 (repealed)

Cases Cited:
Director of Public Prosecutions v Yalda [1998] NSWCA 277
Latoudis v Casey (1990) 170 CLR 534
Logue v DPP (No 1) [2023] NSWDC 395
Logue v DPP (No 2) [2023] NSWDC 494

Category: Consequential orders
Parties: Rex (Crown Respondent)
Natalia Mikhaylova (Appellant)
Representation: Solicitors:
Appellant (self-represented)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2021/00147491
Publication restriction: NONE

JUDGMENT

Ms Mikhaylova (‘the appellant’) successfully defended two charges of common assault heard in the NSW Local Court in 2022 and 2023. Both offences were dismissed on 3 November 2023 on the basis that in neither case had a prima facie case been established.
At the conclusion of the Local Court hearing, the applicant made an application for costs, relying upon sections 213 and 214 (1)(a) and (c) of the Criminal Procedure Act 1986.
The application was refused by the Magistrate.
On 10 November 2023 the appellant lodged a Notice of Appeal to the District Court “to cost compensation orders only”.
In her Notice of Appeal, the appellant wrote relevantly: “section 214(1) is applicable. Court has jurisdiction to order costs compensation for the costs incurred in defending against unfounded charges.”
The relevant provisions of the Criminal Procedure Act1986 are:

211   Definition
In this Part—
professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court.
212   When costs may be awarded
(1) A court may award costs in criminal proceedings only in accordance with this Act.
(2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967.
Note—
The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction.
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…

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.

Continue reading R v Mikhaylova

Details

AGLC: R v Mikhaylova [2024] NSWDC 90
Case: [2024] NSWDC 90
Decision Date: 22 March 2024

CaseChat Overview and Summary

The case of R v Mikhaylova involved an application for costs following the dismissal of substantive charges against the respondent in the Local Court. The respondent, Mikhaylova, had been charged with offences under the Criminal Procedure Act 1986 (NSW) and, following the dismissal of these charges, applied for costs under the same Act. The Local Court denied the application for costs, and Mikhaylova subsequently appealed this decision to the District Court. The appeal raised two primary issues: the jurisdiction of the District Court to consider the appeal and the appropriateness of the Local Court’s decision to refuse the costs application.

The court first addressed the jurisdictional issue, considering whether the District Court had the authority to review the Local Court's refusal of the costs application. The court examined relevant statutory provisions and case law to determine if the appeal was within the scope of permissible appeals under the Criminal Procedure Act 1986 (NSW). The court found that the substantive charges against Mikhaylova had been dismissed in the Local Court, thereby depriving the District Court of the jurisdiction to entertain the appeal regarding the costs application. Consequently, the appeal was deemed to lack the necessary jurisdiction, leading to its dismissal.

In summarising the court's reasoning, it was established that the dismissal of the substantive charges resulted in a final determination of the matter in the Local Court, leaving no substantive appealable decision for the District Court to review. The court held that the appeal was without merit and lacked the requisite jurisdiction, resulting in the dismissal of the appeal for want of jurisdiction. The court did not proceed to consider the merits of the costs application, as it found itself without the authority to do so.

The final orders of the court were that the appeal be dismissed for want of jurisdiction. This determination underscores the importance of jurisdictional boundaries in the appellate process and reaffirms the finality of decisions made by the Local Court in cases where substantive charges have been dismissed.

Orders

Orders of the court

Appeal be dismissed for want of jurisdiction

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Mikhaylova [2024] NSWDC 90
Hearing dates:	19 March 2024
Date of orders:	22 March 2024
Decision date:	22 March 2024
Jurisdiction:	Criminal
Before:	D Barrow SC DCJ
Decision:	Appeal be dismissed for want of jurisdiction
Catchwords:	COSTS APPLICATION – Criminal Procedure Act 1986 (NSW) – applicant’s application for costs refused in the Local Court JURISDICTION - jurisdiction of District Court to consider appeal where substantive charges dismissed in the Local Court
Legislation Cited:	Costs in Criminal Cases Act1967 (NSW), s 213 Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, ss 11, 12, 23, 28, 70 Criminal Procedure Act1986 (NSW), ss 211, 212, 213, 214 District Court Act1973 (NSW), s 166 Justices Act 1902 (NSW), ss 120, 122 (repealed)
Cases Cited:	Director of Public Prosecutions v Yalda [1998] NSWCA 277 Latoudis v Casey (1990) 170 CLR 534 Logue v DPP (No 1) [2023] NSWDC 395 Logue v DPP (No 2) [2023] NSWDC 494
Category:	Consequential orders
Parties:	Rex (Crown Respondent) Natalia Mikhaylova (Appellant)
Representation:	Solicitors: Appellant (self-represented) Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s):	2021/00147491
Publication restriction:	NONE