Citation: Pierre Sukkar v Regina (No 2) [2016] NSWDC 154
Court: District Court of New South Wales
Date: 1 August 2016
Judge: Judge AC Scotting
Background
The applicant had been charged with a range of offences arising from an incident at a hotel on 30 August 2013, including assault police occasioning actual bodily harm. He was ultimately convicted at the Local Court on 2 April 2015 of, among other offences, assaulting a police officer. His conviction appeal was allowed on 21 August 2015.
The conviction appeal succeeded on the basis of a combination of factors: CCTV footage inconsistent with police accounts, contaminated evidence resulting from inappropriate email contact between officers, and an absence of independent witness evidence or corroborating photographic material.
Following the successful appeal, the applicant sought a costs order under section 70(1)(a) of the Crimes (Appeal and Review) Act 2001, on the ground that the original investigation had been conducted in an unreasonable or improper manner. The parties agreed that if this application failed, further applications under sections 70(1)(b) to (d) would be pursued separately.
Legal Issues
- Whether the investigation was conducted in an unreasonable or improper manner within the meaning of section 70(1)(a) of the Crimes (Appeal and Review) Act 2001
- Whether the court should exercise its discretion to award costs in favour of the applicant
- The appropriate quantum of costs (reserved for further hearing)
Decision
Judge Scotting found, on the balance of probabilities, that the investigation was both unreasonable and improper, for three distinct reasons.
First, the investigating officer failed to interview independent witnesses. The other hotel patrons were likely the most relevant independent witnesses to the incident, and the security guards on duty were traceable by law under the Security Industry Act 1997. Two statements from security guards had in fact been obtained early in the investigation but were not served until two weeks before the hearing, which the court found supported the conclusion that those witnesses were always available and that the failure to interview them earlier was unreasonable. The late service of the statements was also characterised as improper.
Second, the gathering of medical evidence concerning the alleged injury was unreasonable and improper. The investigating officer, who was also the alleged victim, obtained a statement from his own treating surgeon to support the grievous bodily harm charge. That statement was then served without disclosing that the officer had passed a medical and occupational assessment just days earlier and had been cleared for full duties. The court found this process gave rise to a significant conflict of interest and compromised the integrity of the evidence. Delays in producing the officer's medical file, and his ultimate refusal to attend the committal for cross-examination, further contributed to the finding that this aspect of the investigation was both incomplete and misleading.
Third, the court was satisfied that the statements of the two police officers were contaminated by inappropriate email contact between them about the content of their evidence. This finding had been made in the conviction appeal and was adopted in full for the purposes of the costs application.
Orders Made
- The prosecution is to pay the applicant's costs of the appeal and the Local Court proceedings.
- Submissions on the quantum of costs and the payment date under section 72 of the Act are reserved for a further hearing.
Key Takeaways
- Under section 70(1)(a) of the Crimes (Appeal and Review) Act 2001, a successful conviction appellant seeking costs does not need to establish what an uninterviewed witness would have said; the fact of failing to interview available independent witnesses may itself satisfy the provision.
- The District Court confirmed that the inquiry under section 70(1)(a) is broader than that under section 70(1)(c), and may be grounded in the extent of the investigation or the lack of it, following RB v DPP [2015] NSWSC 248.
- Where an alleged victim who is also the investigating officer gathers their own medical evidence to support a charge, without disclosing a material change in their medical status, a court may find both a conflict of interest and conduct sufficient to characterise the investigation as improper.
- A failure to serve witness statements promptly, where those witnesses were available throughout the investigation, can independently contribute to a finding that the investigation was conducted improperly.
- The quantum of costs ordered remained unresolved at the time of this judgment, with the parties directed to make further submissions on that question.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 70(1)(a), 70(1)(b), 70(1)(c), 70(1)(d), 72
- Security Industry Act 1997 (NSW), ss 4, 35, 36
Cases:
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA 13
- RB v DPP [2015] NSWSC 248