AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Local Court 23 August 2016

NSW Police v Pepper

[2016] NSWLC 15

Traffic & driving
CRIMINAL PROCEEDINGS PROSECUTION STATUTE BARRED DISPOSITION OF PROCEEDINGS PAPERS TO BE MARKED ‘NO JURISDICTION’

Citation: NSW Police v Pepper [2016] NSWLC 15
Court: Local Court of NSW
Date: 23 August 2016
Judge(s): Heilpern LCM

Background

NSW Police served a Court Attendance Notice (CAN) on the defendant for an alleged driving under the influence offence. The incident occurred on 29 November 2015, but the CAN was not created and filed until 3 June 2016 and was not served until 1 June 2016. It was common ground between the parties that the prosecution was statute-barred under s 179(1) of the Criminal Procedure Act 1986.

The defendant retained a solicitor, who appeared at the first return date and subsequently wrote to police requesting withdrawal of the time-barred proceedings. Police did not withdraw, and the matter returned to court with the sole remaining issue being costs.

The prosecution conceded the proceedings were invalid but disputed the court's power to award costs in those circumstances, raising questions about the appropriate disposition of the proceedings and the source of any costs jurisdiction.

  • What is the appropriate formal disposition of proceedings that are invalid for want of jurisdiction (as opposed to dismissal)?
  • Does the Local Court have power to award costs where summary proceedings are invalid and cannot be formally dismissed?
  • If the power to award costs exists, should it be exercised in the circumstances of this case?

Decision

Disposition of proceedings. Heilpern LCM held that invalid proceedings cannot be "dismissed" in the ordinary sense. Following the Supreme Court's reasoning in DPP v Cakici [2006] NSWSC 454 and DPP v Goben [1999] NSWSC 696, the appropriate order was to mark the papers "No Jurisdiction" rather than to record a dismissal.

Power to award costs. The central question was whether the absence of a valid dismissal also extinguished the costs jurisdiction. His Honour found it did not. Section 213(3)(b) of the Criminal Procedure Act 1986 expressly permits a costs order where "the proceedings are for any reason invalid." That provision was enacted specifically to overcome the difficulty identified in Goben, where the predecessor legislation (s 81 of the Justices Act 1902) required a valid dismissal before costs could flow. His Honour also drew support from NSW Police v JG (No 2) [2013] NSWLC 32, which recognised an implied costs power even in proceedings where jurisdiction had not been properly invoked. The court distinguished DPP (NSW) v McDonald [2015] NSWLC 7, noting that decision addressed committal costs provisions under ss 116 to 117 of the Act, which contain no equivalent extension to invalid proceedings.

Should costs be awarded? Section 214 of the Act requires some form of misfeasance before costs are ordered. His Honour was satisfied that commencing proceedings without checking whether they fell within the limitation period was inherently unreasonable within the meaning of s 214(b). The defendant should not have been required to incur legal costs to identify an error that ought to have been caught before the CAN was issued. A costs order of $990 (the amount invoiced, unchallenged by the prosecution) was made.

Orders Made

  • The papers are marked "No Jurisdiction."
  • The prosecution is to pay the defendant's costs in the sum of $990 within 14 days.

Key Takeaways

  • Where summary proceedings are invalid (including because they are statute-barred), the correct disposition is to mark the papers "No Jurisdiction," not to record a dismissal.
  • Section 213(3)(b) of the Criminal Procedure Act 1986 expressly confers power to award costs in invalid proceedings, filling the gap left by the old Justices Act regime that required a valid dismissal as a prerequisite.
  • The legislature's intention in enacting s 213(3)(b) was specifically to overcome DPP v Goben, as confirmed by the Supreme Court in DPP v Cakici at [38].
  • Commencing a prosecution without verifying that it falls within the relevant limitation period can satisfy the "no reasonable cause" limb of s 214, justifying a costs order against the prosecutor.
  • The McDonald decision's rejection of costs jurisdiction in invalid proceedings is distinguishable: it turned on the committal costs provisions in ss 116 to 117, which do not contain the "invalid proceedings" extension found in s 213(3)(b).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 116, 117, 179, 213, 214
- Justices Act 1902 (NSW) (rep), s 81
- Local Court Act 2007 (NSW), s 69

Cases
- DPP v Cakici [2006] NSWSC 454
- DPP v Goben [1999] NSWSC 696
- DPP (NSW) v McDonald; DPP (NSW) v Maitland [2015] NSWLC 7
- Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
- NSW Police v JG (No 2) [2013] NSWLC 32