RB v DPP

Case [2015] NSWSC 248 20 March 2015

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Supreme Court

New South Wales

Medium Neutral Citation: RB v DPP [2015] NSWSC 248
Hearing dates: 25 February 2014
Decision date: 20 March 2015
Jurisdiction: Common Law
Before: Hidden J
Decision:
Magistrate’s order refusing costs quashed, matter remitted to Local Court.

Catchwords: JUDICIAL REVIEW – Local Court – costs in a criminal case – magistrate’s refusal to award costs to a defendant after a charge dismissed – whether the magistrate applied the proper test in determining whether the investigation had been conducted unreasonably or there had been an unreasonable failure to investigate a relevant matter suggesting the defendant might not be guilty
Legislation Cited: Crimes (Appeal and Review) Act 2001
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Justices Act 1902
Law Enforcement (Powers and Responsibilities) Act 2002
Supreme Court Act 1970
Cases Cited: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
Craig v State of South Australia [1995] HCA 58, 184 CLR 163
Da Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
Dong v Hughes [2005] NSWSC 84
JD v DPP & Ors [2000] NSWSC 1092
Kirk v Industrial Court of New South Wales [2010] HCA 1, 239 CLR 531
O’Brien v Hutchinson [2012] NSWSC 429
R v Rondo [2001] NSWCCA 540, 126 A Crim R 562
Category: Principal judgment
Parties: RB (plaintiff)
Director of Public Prosecutions (1st defendant)
Local Court of New South Wales (2nd Defendant)
Representation:
Counsel:
TM Healey (plaintiff)
I Bourke (1st defendant)
Solicitors:
Alex Floyd, Kilmurray Lawyers (plaintiff)
SC Kavanagh, Solicitor for Public Prosecutions (1st defendant)
IV Knight, Crown Solicitor (2nd defendant)

File Number(s): 2013/204531
Publication restriction: Yes

Judgment

The plaintiff was prosecuted in the Local Court on a charge of indecent assault upon a young girl. The prosecution was conducted by the first defendant, the Director of Public Prosecutions. The charge was dismissed and the plaintiff sought the costs of the proceedings. The magistrate declined to award costs, and in this court the plaintiff seeks judicial review of that decision.
Apart from the complainant, it will be necessary to refer to a number of juveniles, including the plaintiff’s own daughters. It is to prevent disclosure of their identities that the plaintiff is not referred to by name in this judgment.
The offence was alleged to have occurred between late December 2008 and early January 2009. The plaintiff and his family were on a camping holiday and the complainant, a friend of one of the plaintiff’s daughters, had been invited to join them. It is not necessary to examine the evidence in any detail. It is alleged that on the night in question the plaintiff rubbed the complainant’s vagina through her clothing. She told him to stop. A number of matters arising from the evidence contributed to the magistrate’s decision to dismiss the charge.
The plaintiff gave evidence denying the offence. His evidence was supported by the evidence of his family: his wife, his son (an adult) and his two daughters. Put shortly, the effect of their…

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 RB v DPP

Details

AGLC: RB v DPP [2015] NSWSC 248
Case: [2015] NSWSC 248
Decision Date: 20 March 2015

CaseChat Overview and Summary

The case of RB v DPP involved a challenge to a decision of the Local Court, where the defendant, RB, sought a review of the court's refusal to award costs following the dismissal of a charge against him. The Local Court had dismissed the charge against RB, but the magistrate refused to award him costs, a decision RB sought to challenge on the grounds that the magistrate had not properly applied the relevant legal test in determining whether the investigation had been conducted unreasonably or whether there had been an unreasonable failure to investigate matters suggesting RB might not be guilty.

The primary legal issue before the court was whether the magistrate had correctly applied the legal test in deciding whether to award costs to RB after the dismissal of the charge. Specifically, the court needed to determine if the magistrate had considered all relevant factors in deciding whether the investigation was conducted unreasonably or whether there was an unreasonable failure to investigate matters that might have indicated RB's innocence. The court also needed to consider whether the decision not to award costs was a matter within the magistrate's discretion or if it required a more rigorous legal analysis.

The court held that the magistrate had not applied the correct legal test in deciding whether to award costs to RB. The court found that the magistrate had failed to adequately consider the relevant factors and had not exercised the discretion to award costs in a manner consistent with established legal principles. The court emphasised that the decision to award costs after a charge is dismissed is a matter that requires careful consideration of whether the investigation was conducted unreasonably or whether there was a failure to investigate matters that might have indicated the defendant's innocence. The court concluded that the magistrate's decision did not reflect a proper application of the legal test, and thus the refusal to award costs was not justified.

The court quashed the decision of the Local Court not to award costs to RB and remitted the matter back to the Local Court for reconsideration in accordance with the principles outlined in the judgment. The court did not direct the Local Court on the outcome of the reconsideration but instructed that the decision-making process must reflect a proper application of the relevant legal test.

Orders