Citation: R v McMahon (No 2) [2006] NSWDC 206
Court: District Court of New South Wales
Date: 10 November 2006
Judge(s): Berman DCJ
Background
The accused had been acquitted (or otherwise succeeded) in proceedings that ran through both the Local Court and the District Court on appeal. Following that outcome, the accused applied for costs against the Director of Public Prosecutions in respect of both sets of proceedings.
The accused's counsel argued that costs should run from the point at which psychiatric reports prepared by Dr Allnutt were served on the prosecution. The application was brought under section 70 of the Crimes (Local Courts Appeal and Review) Act, which imposes strict limitations on when costs may be ordered against a public prosecutor.
The core dispute was whether the prosecution's conduct satisfied either of the two grounds under section 70 upon which costs could be awarded: unreasonable failure to investigate, or exceptional circumstances making an award just and reasonable.
Legal Issues
- Whether the prosecution unreasonably failed to investigate a matter under section 70(1)(c)
- Whether a mistake made by the DPP's representative in the Local Court constituted "exceptional circumstances" under section 70(1)(d) sufficient to justify a costs order
Decision
On the section 70(1)(c) ground, Berman DCJ found no unreasonable failure to investigate. Because the onus of proof rested on the accused (in the context of a defence supported by psychiatric evidence), the prosecution was entitled to put the accused to proof without itself obtaining rebuttal evidence. The court observed that Crown challenges to defence psychiatric evidence, without counter-evidence, are not uncommon and do not of themselves constitute unreasonable conduct.
On the section 70(1)(c) ground, the application therefore failed. There was nothing to identify what specific investigation the prosecution had unreasonably omitted to undertake.
On the section 70(1)(d) ground, the accused pointed to a mistake made by the DPP's representative in the Local Court. Berman DCJ rejected the proposition that a lawyer's error constitutes exceptional circumstances. His Honour noted that judges, magistrates, and advocates all make mistakes, and that the existence of appellate courts exists precisely to correct such errors. An ordinary professional mistake does not elevate a case into the exceptional category required by the provision.
With both grounds failing, the court declined to make any costs order.
Orders Made
- No order as to costs.
Key Takeaways
- Under section 70 of the Crimes (Local Courts Appeal and Review) Act, costs against the DPP are available only in limited circumstances, and the statutory threshold is a high one.
- Where a defence bears the onus of proof (for example, on a psychiatric defence), the prosecution's decision to contest that defence without obtaining its own expert evidence does not automatically constitute an unreasonable failure to investigate under section 70(1)(c).
- A legal representative's mistake, standing alone, does not amount to "exceptional circumstances" under section 70(1)(d). The existence of appellate review is the recognised mechanism for correcting such errors.
- The District Court confirmed that the legal system proceeds on the understanding that all participants, including judges and advocates, will sometimes err, and that this ordinary fallibility does not transform proceedings into exceptional cases for costs purposes.
- No costs order was made, notwithstanding that the accused had ultimately succeeded in the proceedings.
Legislation and Cases Referenced
Legislation:
- Crimes (Local Courts Appeal and Review) Act (NSW), section 70(1)(c) and (d)
Cases cited:
None cited in the judgment.