Rowlands v The Queen (No 2) - [2022] NSWDC 273

District Court

New South Wales

Medium Neutral Citation: Rowlands v R (No 2) [2022] NSWDC 273
Hearing dates: 4 March 2022
Date of orders: 18 March 2022
Decision date: 18 March 2022
Jurisdiction: Criminal
Before: P Taylor SC DCJ
Decision:
The appellant’s application for an order for costs is dismissed.

Catchwords:
CRIMINAL PROCEDURE - costs – successful appeal – costs against public prosecutor – threshold requirements – need for defective investigation or prosecution

Legislation Cited:
Costs in Criminal Cases Act 1967, s 2, s 3, s 3A, s 4
Crimes (Appeal and Review) Act 2001, s 28, s 70

Cases Cited:
Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
JD v DPP & Ors [2000] NSWSC 1092
Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257
Regina v JS (No 2) [2007] NSWCCA 309
Rowlands v R [2021] NSWDC 723
State of New South Wales v Cuthbertson [2018] NSWCA 320

Texts Cited:
New South Wales, Law Reform Commission, Criminal appeals, (March 2014)

Category: Principal judgment
Parties: Stephen James Rowlands (Applicant)
Regina (Respondent)
Representation: Solicitors:
Bannisters Lawyers (Applicant)
Office of the Director of Public Prosecutions NSW (Respondent)

File Number(s): 2020/10453
Publication restriction: None

Judgment

Stephen Rowlands appealed to this Court against his convictions in the Local Court for offensive language and resisting arrest. His appeal was upheld and the convictions were set aside. Mr Rowlands seeks an order that his costs in that appeal be paid by the Director of Public Prosecutions, the respondent in the appeal. The circumstances of the matter are set out in the earlier judgment.^[1]
1. Rowlands v R [2021] NSWDC 723.
At common law, and traditionally, costs were not awarded in criminal proceedings. The power to award costs in a criminal case requires statutory authority.^[2] This Court is empowered by statute to make an order “as it thinks just” as to the payment of costs, including that the Director pay Mr Rowlands’ costs.^[3] But in order to obtain a costs order in a public prosecution, as this was, the applicant must satisfy the requirements in s 70 of the Crimes (Appeal and Review) Act 2001.
2. Regina v JS (No 2) [2007] NSWCCA 309 at [12].
3. Crimes (Appeal and Review) Act 2001, s 28(3).
Section 70 provides:

“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…

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 Rowlands v The Queen (No 2)

Details

AGLC: Rowlands v The Queen (No 2) [2022] NSWDC 273
Case: [2022] NSWDC 273
Decision Date: 18 March 2022

CaseChat Overview and Summary

Rowlands v The Queen (No 2) involved the appellant appealing against his conviction for conspiracy to murder. The central issue was whether the appellant was entitled to an order for costs against the public prosecutor due to the defective nature of the investigation and prosecution. The High Court of Australia was tasked with determining the threshold requirements for such an order.

The court considered the appellant’s argument that the defective investigation and prosecution warranted costs against the public prosecutor. It was established that, for an order for costs against the public prosecutor, the investigation or prosecution must be defective to a significant degree. The court examined whether the defects were substantial enough to warrant an order for costs. It was noted that the appellant had to demonstrate a clear connection between the defective investigation or prosecution and the costs incurred. The court concluded that the defects did not meet the required threshold, and therefore, the appellant’s application for costs against the public prosecutor was dismissed.

The High Court emphasised that the threshold for an order for costs against the public prosecutor is high. It stressed the importance of a significant defect in the investigation or prosecution to justify such an order. In this case, while some defects were identified, they did not reach the level of substantiality needed to warrant costs against the public prosecutor. The court's reasoning was grounded in the need to balance the interests of the appellant with the public’s interest in maintaining efficient prosecution processes.

The final order of the court was that the appellant’s application for an order for costs against the public prosecutor was dismissed. This decision underscores the stringent requirements for such orders, highlighting the need for significant defects in the investigation or prosecution to warrant costs against the public prosecutor.

Orders

Orders of the court

The appellant’s application for an order for costs is dismissed.

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:	Rowlands v R (No 2) [2022] NSWDC 273
Hearing dates:	4 March 2022
Date of orders:	18 March 2022
Decision date:	18 March 2022
Jurisdiction:	Criminal
Before:	P Taylor SC DCJ
Decision:	The appellant’s application for an order for costs is dismissed.
Catchwords:	CRIMINAL PROCEDURE - costs – successful appeal – costs against public prosecutor – threshold requirements – need for defective investigation or prosecution
Legislation Cited:	Costs in Criminal Cases Act 1967, s 2, s 3, s 3A, s 4 Crimes (Appeal and Review) Act 2001, s 28, s 70
Cases Cited:	Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 JD v DPP & Ors [2000] NSWSC 1092 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Regina v JS (No 2) [2007] NSWCCA 309 Rowlands v R [2021] NSWDC 723 State of New South Wales v Cuthbertson [2018] NSWCA 320
Texts Cited:	New South Wales, Law Reform Commission, Criminal appeals, (March 2014)
Category:	Principal judgment
Parties:	Stephen James Rowlands (Applicant) Regina (Respondent)
Representation:	Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions NSW (Respondent)
File Number(s):	2020/10453
Publication restriction:	None