Citation: [2013] NSWLC 17
Court: Local Court of NSW
Date: 10 October 2013
Judge(s): Buscombe LCM
Background
Two accused persons had all prosecution evidence excluded under s 138 of the Evidence Act 1995 at the conclusion of a voir dire (a preliminary hearing to determine the admissibility of evidence). Both accused were acquitted, and their counsel applied for costs orders against the police prosecutor under the Criminal Procedure Act 1986.
One accused was represented by private counsel briefed through the Legal Aid Commission; the other was represented by private counsel briefed through the Principal Solicitor of the Aboriginal Legal Service (ALS). Both counsel were private barristers at the NSW Bar.
The police prosecutor opposed only the costs application made on behalf of the accused represented by the ALS. The basis for that opposition was a recent unreported Local Court decision, Police v Turley, in which a magistrate had held that because the ALS did not require its clients to pay legal fees, there was nothing to indemnify the accused for and therefore no costs order could be made.
Legal Issues
- Whether a costs order under s 213 of the Criminal Procedure Act 1986 is available where an accused is represented by the ALS, in circumstances where the ALS may not require the client to pay legal fees
- Whether the court should assume the existence of a solicitor-client retainer in the absence of evidence about the nature of the retainer
- Where the onus of proof lies when a party challenges the nature of the retainer between a legally aided accused and their legal representative
- Whether the threshold conditions in s 214(1) of the Criminal Procedure Act 1986 were satisfied so as to enliven the court's discretion to award costs
- Whether the amounts claimed by counsel were just and reasonable
Decision
Issue 1: Whether the ALS retainer prevents a costs order
Buscombe LCM declined to follow Dunlevy LCM's decision in Turley, noting a significant factual difference: in Turley, evidence had been placed before the magistrate about the nature of the ALS's retainer with its client, and no private counsel had been engaged. In the present case, no such evidence was placed before the court, and private barristers had in fact been briefed by both the ALS and the Legal Aid Commission.
The magistrate adopted the reasoning of Justice Templeman of the Western Australian Supreme Court in Bolton v Stange, accepting that in the absence of evidence about the nature of the retainer, a court must assume that a solicitor-client retainer exists in the ordinary sense and that the solicitor may look to the client for payment. The onus falls on the party seeking to displace that assumption to adduce evidence to the contrary. The police prosecutor adduced no such evidence here.
Issue 2: Whether s 214(1) thresholds were satisfied
Section 214 of the Criminal Procedure Act limits when a court may award costs to a successful accused. The court must be satisfied of at least one of the grounds set out in the section. Buscombe LCM found that two grounds were satisfied: the investigation had been conducted unreasonably and improperly (s 214(1)(a)), and the proceedings had been initiated without reasonable cause (s 214(1)(b)). The magistrate grounded these conclusions in earlier findings on the voir dire, which had established that the relevant conduct would not have occurred but for an unlawful entry to premises.
Issue 3: Whether the amounts claimed were just and reasonable
No submission was advanced by the prosecutor challenging the quantum of either costs claim. The magistrate examined each memorandum of fees and was satisfied that both amounts were just and reasonable given the nature of the proceedings, including the voir dire, and the fact that both counsel appeared on hearing days without instructing solicitors.
Orders Made
- The prosecutor in the matter of the first accused is to pay $14,850 in professional costs to the registrar, for payment to the Legal Aid Commission on behalf of that accused.
- The prosecutor in the matter of the second accused is to pay $19,525 in professional costs to the registrar, for payment to the ALS on behalf of that accused.
Key Takeaways
- A court dealing with a costs application must assume, in the absence of evidence to the contrary, that an ordinary solicitor-client retainer exists and that the solicitor may look to the client for payment of fees, even where the client is represented by the ALS or Legal Aid Commission.
- The onus of proof to displace that assumption rests on the party opposing the costs order. A bare assertion that the accused was legally aided is insufficient to defeat a costs application.
- Where private counsel is engaged by the ALS or Legal Aid Commission to appear in proceedings, that factor distinguishes the case from one where an employed ALS or Legal Aid solicitor appears directly, and may affect the retainer analysis.
- Under s 214(1) of the Criminal Procedure Act 1986, a costs order in favour of an accused in summary proceedings requires satisfaction of at least one specified threshold, such as that the investigation was conducted unreasonably or that proceedings were initiated without reasonable cause.
- Buscombe LCM expressly declined to follow a contemporaneous Local Court decision to the contrary, on the basis that it was distinguishable on its facts and that the reasoning in Bolton v Stange was to be preferred on the retainer assumption point.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Evidence Act 1995
- Justices Act 1902
- Legal Aid Commission Act 1979
Cases
- Bolton v Stange [2001] WASCA 34
- Hawksford v Hawksford [2005] NSWSC 463
- Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152
- Latoudis v Casey (1990) 170 CLR 534
- Lenthall v Hillson [1933] SASR 31
- Police v Turley (Local Court, unreported, 25 July 2013)
- Wentworth v Rogers (2006) 66 NSWLR 474