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Local Court 24 November 2015

Director of Public Prosecutions (NSW) v Harris

[2015] NSWLC 22

Sexual offencesPublic order & justice offences
CRIMINAL PROCEEDINGS MEANING OF “COMMITTAL PROCEEDINGS”

Citation: [2015] NSWLC 22
Court: Local Court of NSW
Date: 24 November 2015
Judge(s): Huntsman LCM

Background

The accused faced four charges of sexual intercourse with a child under 10 years (under section 66A(2) of the Crimes Act 1900), involving two separate complainants. Charges were filed in September 2014 and February 2015, and the matters proceeded through a series of mention and procedural dates before the Local Court. Following a review by a Senior Crown Prosecutor, all charges were withdrawn on 19 August 2015.

On the day of withdrawal, the accused applied for costs under section 116 of the Criminal Procedure Act 1986. The DPP opposed the application on a threshold basis, arguing that the Local Court had no jurisdiction to award costs at all.

The parties agreed to have the jurisdictional question determined separately before the substantive costs application was heard. Magistrate Huntsman reserved her decision on jurisdiction and delivered this judgment on 24 November 2015.

Legal Issues

  • Whether the Local Court has jurisdiction under section 116 of the Criminal Procedure Act 1986 to award costs where charges are withdrawn before any contested committal hearing takes place
  • Whether "committal proceedings" as defined in section 3 of the Act are limited to the hearing at which a Magistrate decides whether to commit an accused for trial or sentence, or whether they extend to the full course of proceedings from filing of the Court Attendance Notice
  • Whether the withdrawal of all charges constitutes the "end of committal proceedings" for the purposes of section 116

Decision

Issue 1: Meaning of "committal proceedings"

The DPP argued that "committal proceedings" under section 3 means only the hearing at which a Magistrate decides whether to commit for trial or sentence. On this view, the series of mention dates in the present case never amounted to committal proceedings at all, so section 116 could not be engaged. The Magistrate rejected this narrow reading.

Examining the Act as a whole, the Magistrate found that committal proceedings are not confined to the hearing date (at [47]). Sections 47 and 53 provide for commencement of proceedings by filing a Court Attendance Notice, and section 53 expressly deems proceedings to have commenced on that filing date (at [40]). Several other provisions use the phrase "committal proceedings" to refer to stages well before any contested hearing: sections 54, 60, and 61 each contemplate procedural steps, including first return dates and prosecution evidence service dates, as part of the committal proceedings (at [42], [46]). Section 54(3A) reinforced this conclusion by distinguishing between "the hearing of committal proceedings" and absconding "from the committal proceedings," which the Magistrate found necessarily implies committal proceedings extend beyond the hearing date alone (at [51]).

Issue 2: Significance of the earlier Justices Act definition

The DPP pointed to the removal of words from the former Justices Act 1902 definition, which had expressly included proceedings "preliminary thereto or ancillary thereto," suggesting Parliament intended a narrower scope. The Magistrate found this argument unpersuasive. The definition in the Criminal Procedure Act predated the repeal of the Justices Act and was carried over largely unchanged; the 2001 amending Act simply removed a reference to "one or more Justices" (at [36]). Nothing in the legislative history, including the Second Reading Speech, indicated an intention to restrict the definition (at [37]).

Issue 3: Meaning of "end of committal proceedings" and jurisdiction under section 116

Section 116(1)(a) permits costs at the end of committal proceedings where the accused is discharged or the matter is withdrawn. The Magistrate reasoned that including both discharge (which requires a Magistrate's determination after a hearing) and withdrawal (which requires no such determination) within the same subparagraph indicated that Parliament did not intend "end of committal proceedings" to be confined to the conclusion of a contested hearing (at [56]). Section 61 provides an example of committal proceedings ending by discharge without any contested hearing (at [42], [53]). Reading section 116 alongside section 117, which targets unreasonable or improper conduct by investigators and prosecutors, the Magistrate also observed that confining jurisdiction to post-hearing withdrawals would undermine the expressed legislative purpose of those provisions (at [58]). The Local Court therefore has jurisdiction to consider the costs application (at [60]).

Orders Made

  • The Local Court has jurisdiction to consider the application for costs.

Key Takeaways

  • "Committal proceedings" under section 3 of the Criminal Procedure Act 1986 encompass the full course of proceedings from the filing of the Court Attendance Notice until the proceedings end, and are not restricted to the contested hearing at which a Magistrate decides whether to commit for trial or sentence (at [47], [52]).

  • Mention dates and procedural dates set under section 60 of the Act form part of committal proceedings for the purposes of section 116 (at [52]).

  • Section 116(1)(a) grants the Local Court jurisdiction to award costs where charges are withdrawn, regardless of whether a contested committal hearing ever took place, because withdrawal and discharge are both treated as endings of committal proceedings within the same statutory provision (at [56], [60]).

  • The removal of the "preliminary or ancillary" language from the former Justices Act 1902 definition did not, in this court's view, signal a parliamentary intention to narrow the meaning of committal proceedings to the hearing date alone (at [37]).

  • Adopting the DPP's narrower construction would, as the Magistrate noted, leave accused persons with no avenue to recover costs in cases of unreasonable or improper prosecution conduct occurring before any contested hearing, a result the court found inconsistent with the purpose of sections 116 and 117 read together (at [58], [59]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900, s 66A
- Criminal Procedure Act 1986, ss 3, 116, 117
- Justices Act 1902 (repealed), ss 41, 41A

Cases
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
- Hanna v Horler [1999] NSWSC 1159
- Hammond v Director of Public Prosecutions [2013] NSWSC 888