Citation: Milson v R (No 5) [2013] NSWDC 276
Court: District Court of New South Wales
Date: 28 August 2013
Judge(s): Cogswell SC DCJ
Background
The appellant had been convicted of an offence under s 193C(1) of the Crimes Act 1900 (NSW). On 19 July 2013, the District Court allowed his appeal against that conviction, finding two fatal defects in the prosecution: the original Court Attendance Notice (CAN) was void, and a purported amendment to the CAN had been made outside the relevant limitation period.
Following the successful appeal, the appellant applied for costs under s 70 of the Crimes (Appeal and Review) Act 2001 (NSW). The respondent, the Director of Public Prosecutions, opposed the application.
The costs application turned on whether either of two circumstances in s 70 were satisfied: that the Local Court proceedings had been initiated without reasonable cause, or that exceptional circumstances in the prosecutor's conduct made a costs award just and reasonable.
Legal Issues
- Whether the Local Court proceedings were initiated without reasonable cause, on the basis that the prosecution was doomed to failure or had no substantial prospects of success.
- Whether exceptional circumstances relating to the prosecutor's conduct made it just and reasonable to award costs in favour of the appellant.
Decision
On the first ground, the court applied the test drawn from Halpin v Department of Gaming and Racing [2007] NSWSC 815: proceedings are instituted without reasonable cause where, on the facts apparent at the time, there was no substantial prospect of success. The court rejected the submission that the prosecution was doomed to failure. The respondent had argued that the CAN amendment was a mere particularisation of property rather than a substantive new charge, and that argument was not so weak as to be unarguable.
On the question of the original invalidity of the CAN, the court noted that the relevant power to amend defective initiating process under s 21 of the Criminal Procedure Act 1986 (NSW) had been the subject of analysis by Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. The court inferred from that reasoning that the legal position was not unquestionably clear, and that the issue remained arguable. A prosecution that raises genuinely contestable legal questions cannot be characterised as having no real prospects of success.
On the second ground, the appellant pointed to email correspondence exchanged the evening before the appeal hearing, in which his Senior Counsel had outlined relevant authorities to the prosecutor. The court found that the prosecutor's decision to continue the proceedings following that exchange did not constitute conduct sufficiently exceptional to warrant a costs order. No conduct by the prosecutor was identified that would make it just and reasonable to award costs in the appellant's favour.
The costs application was dismissed.
Orders Made
• The application by Mr Milson for his costs is rejected.
Key Takeaways
- Under s 70 of the Crimes (Appeal and Review) Act 2001, costs are not awarded to a successful appellant as a matter of course; the appellant must satisfy one of the specified circumstances set out in that provision.
- A prosecution is not initiated "without reasonable cause" merely because it ultimately fails or contains legal defects. The test requires that the proceedings had no substantial prospects of success or were doomed to failure, assessed objectively at the time of institution.
- Where a prosecution raises genuinely arguable questions of statutory construction, a finding against the prosecution on those questions does not retrospectively render the proceedings unreasonable.
- The District Court declined to find "exceptional circumstances" in a prosecutor's conduct simply because the prosecutor continued proceedings after receiving correspondence from opposing counsel highlighting adverse authorities the evening before a hearing.
- The court's reasoning confirms that the bar for a costs award in favour of a successful conviction appellant is a high one, reflecting the statutory framework that displaces any general discretion to follow the event.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 193C(1)
- Crimes (Appeal and Review) Act 2001 (NSW), s 70
- Criminal Procedure Act 1986 (NSW), s 21
Cases
- Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
- Halpin v Department of Gaming and Racing [2007] NSWSC 815