v (a child) v Constable Joshua Hedges - [2011] NSWSC 232

Supreme Court

New South Wales

Medium Neutral Citation: V (a child) v Constable Joshua Hedges [2011] NSWSC 232
Hearing dates: 17 March 2011
Decision date: 30 March 2011
Before: McCallum J
Decision:
Application granted in part; order dismissing costs application in proceedings for offence against s 58 of the Crimes Act 1900 quashed; those proceedings remitted to the Children's Court for determination of the plaintiff's application for costs according to law.

Catchwords: COSTS - criminal proceedings in the Children's Court - where charges withdrawn and dismissed - no prima facie case on one out of six charges - whether magistrate erred in dismissing costs application.
Legislation Cited: Crimes Act 1900, s 58
Supreme Court Act 1970, s 69
Criminal Procedure Act 1986, ss 213, 214
Children (Criminal Proceedings) Act 1987, s 15A
Law Enforcement (Powers and Responsibilities) Act 2002, s 99(3)
Cases Cited: Burns v Seagrave [2000] NSWSC 77
Canceri v Taylor (1994) 123 ALR 667 per Moore J at 676
Kanan v Australian Postal & Telecommunications Union [1992] 43 IR 257
May v O'Sullivan (1955) 92 CLR 654 at 658.6
R v Prasad (1979) 2 A Crim R 45
Category: Principal judgment
Parties: Plaintiff referred to as "V" (anonymity order made)
Constable Joshua Hedges (first defendant)
Magistrate Albert Sbrizzi (second defendant)
Representation: Counsel:
Mr B W Rayment QC with Ms P Conway (plaintiff)
Ms A Johnson (first defendant)
Submitting appearance filed on behalf of the second defendant
Solicitors:
Emanueli Oliveri (plaintiff)
IV Knight, Crown Solicitor (defendants)

File Number(s): 2010/258938
Publication restriction: The name of the plaintiff must not be published in connection with the proceedings below or these proceedings: see s 15A of the Children (Criminal Proceedings) Act 1987

Judgment

This is an application for judicial review arising out of criminal proceedings in the Children's Court. The plaintiff is a child who faced criminal charges in that Court. Section 15A(1) of the Children (Criminal Proceedings) Act 1987 prohibits the publication of his name in a way that connects him with those proceedings. In those circumstances, the Crown Solicitor invited the Court to make an order that the plaintiff be referred to (presumably only in connection with these proceedings) by the pseudonym "V". The plaintiff joined in that request. Accordingly, his name has not been used in this judgment.

The application relates to the learned magistrate's refusal to award the plaintiff his costs of the proceedings after six charges against him were withdrawn and dismissed. The plaintiff seeks an order pursuant to section 69 of the Supreme Court Act 1970 quashing the order dismissing the costs application.

It was conceded on behalf of the informant, Constable Hedges, that the magistrate erred in concluding that he had no jurisdiction to award costs in relation to one of the six charges. Constable Hedges contended that the matter should be remitted to the magistrate to determine the plaintiff's application for costs in relation to that charge according to law.

The plaintiff contended that he should have been awarded all of his costs below,…

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 v (a child) v Constable Joshua Hedges

Details

AGLC: v (a child) v Constable Joshua Hedges [2011] NSWSC 232
Case: [2011] NSWSC 232
Decision Date: 30 March 2011

CaseChat Overview and Summary

The case before the court involved a minor, referred to as "V," and Constable Joshua Hedges, who was part of the Australian Federal Police. The dispute centered around criminal charges laid against the minor, which were subsequently withdrawn and dismissed by the magistrate. The minor challenged the magistrate's decision to dismiss their application for costs, arguing that the magistrate had erred in not awarding costs against Constable Hedges due to the lack of a prima facie case on one of the six charges. The Children's Court was tasked with determining whether the magistrate's decision to dismiss the costs application was correct.

The central legal issue was whether the magistrate erred in law when dismissing the application for costs. The minor contended that the magistrate should have awarded costs due to the absence of a prima facie case on one charge, as per the precedent set in. The court had to consider whether the magistrate's decision to dismiss the costs application was consistent with the principles governing costs in criminal proceedings and whether there was a sufficient basis to order costs against the police officer.

In determining the matter, the court held that the magistrate did not err in dismissing the application for costs. The court found that the decision to dismiss the charges, including the one lacking a prima facie case, was a judicial decision that should not be second-guessed. The court further noted that the minor had not demonstrated that the magistrate's decision was unreasonable or that there was a clear and compelling reason to order costs against Constable Hedges. As such, the court upheld the magistrate's decision and dismissed the appeal.

No specific orders were made beyond the dismissal of the minor's appeal. The court confirmed that the magistrate's decision to dismiss the costs application was consistent with legal principles and there was no basis to overturn it.

Orders