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Local Court 18 May 2017

R v McNamara

[2017] NSWLC 26

Public order & justice offences
CRIMINAL LAW WHETHER ABUSE OF PROCESS COSTS APPLICATION REFUSED

Citation: R v McNamara [2017] NSWLC 26
Court: Local Court of New South Wales
Date: 18 May 2017
Judge: Magistrate Michael O'Brien

Background

An accused facing 282 charges under the Stock Diseases Regulation 2009 (NSW) had been committed for a three-day hearing at Inverell Local Court. Seven days before the scheduled hearing, the prosecution applied to vacate the hearing date, citing newly identified insufficiencies in the brief following the assignment of a senior prosecutor. That application was refused by the Magistrate.

Following the refusal, the prosecution advised that it would not proceed and would withdraw all charges. On the hearing date, the prosecutor formally withdrew the charges, which under s 208 of the Criminal Procedure Act 1986 (NSW) caused them to be taken as dismissed.

The accused, through counsel, opposed the s 208 withdrawal taking effect and instead sought a formal court order of dismissal under s 205 of the Act, together with a certificate under s 205(2) and an award of costs. A separate application was later made for costs relating to the costs application itself.

  • Whether the prosecution's withdrawal of charges under s 208 of the Criminal Procedure Act 1986 (NSW) constituted an abuse of process, such that the court should instead dismiss the proceedings under s 205.
  • Whether the accused was entitled to a certificate of dismissal under s 205(2).
  • Whether the accused was entitled to a costs order under the relevant provisions of the Criminal Procedure Act 1986 (NSW).
  • Whether costs should be awarded in relation to the costs application itself.

Decision

On the withdrawal and dismissal application: The Magistrate rejected the accused's argument that the prosecutor's use of s 208 was an abuse of process. The court found that s 208 expressly provides that withdrawal causes a matter to be taken as dismissed, and that s 205(3) explicitly states s 205 does not apply to a matter taken to be dismissed under s 208. The accused's submissions seeking to invoke s 205 as an alternative mechanism were held to be misconceived and had to fail on that basis alone.

The court also rejected the abuse of process argument on its merits. The accused contended that the possibility of reinstituted proceedings would be oppressive, undermine the principle of finality, and bring the legal system into disrepute. The Magistrate found these concerns did not meet the legal threshold for abuse of process, noting that the right to reinstitute proceedings is expressly preserved by the statute and that any future oppression could be addressed if and when proceedings were reinstituted.

On costs: The court considered whether the investigation had been conducted unreasonably, whether there had been an unreasonable failure to investigate a relevant matter suggesting the accused might not be guilty, or whether it was otherwise just and reasonable to award costs. After reviewing the substantial brief of evidence and the submissions of both parties, the Magistrate found the accused had not established any of the exceptions entitling him to a costs order. The application for costs, including the costs of the costs application itself, was refused.

Orders Made

  • The application for an order dismissing the proceedings under s 205 and the issue of a certificate under s 205(2) was refused.
  • The application for costs was refused.

Note: This decision was upheld on appeal to the NSW Supreme Court in McNamara v Fenner [2017] NSWSC 1746.

Key Takeaways

  • Under s 205(3) of the Criminal Procedure Act 1986 (NSW), s 205 does not apply to a matter taken to be dismissed by reason of the prosecutor's withdrawal under s 208. An accused cannot use s 205 to convert a withdrawal into a court-ordered dismissal.
  • A prosecutor's statutory right to withdraw charges under s 208, which preserves the ability to reinstitute proceedings, does not of itself constitute an abuse of process. Speculative concerns about future oppression do not satisfy the abuse of process threshold.
  • Where a costs application is made following a prosecution withdrawal, the accused must affirmatively establish one of the recognised statutory exceptions, such as unreasonable conduct of the investigation or an unreasonable failure to investigate exculpatory matters. Acknowledging significant defence costs incurred does not, without more, enliven a costs order.
  • The Magistrate expressly described the accused's submissions on the s 205 dismissal application as "misconceived," underscoring the importance of the textual relationship between ss 205, 208, and the limits of the court's power to substitute its own dismissal order for a prosecutorial withdrawal.
  • The decision was subsequently upheld on appeal by the NSW Supreme Court in McNamara v Fenner [2017] NSWSC 1746.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 205, 206, 208, 212, 213, 214
- Stock Diseases Regulation 2009 (NSW), cll 19, 21(1)(a), 35(2)(a), 35(3)

Cases:
- Caltex Refining Co Pty Ltd v Maritime Services Board of NSW (1995) 36 NSWLR 552
- Canceri v Taylor (1994) 123 ALR 667
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
- Craig v State of South Australia [1995] HCA 58; (1998) 184 CLR 163
- De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
- Dong v Hughes [2005] NSWSC 84
- Evans v DPP [2000] NSWSC 1005
- Fosse v DPP [1999] NSWSC 367
- Halpin v Department of Gaming and Racing [2007] NSWSC 815
- Jago v District Court (NSW) (1989) 168 CLR 23
- JD v DPP & Ors [2000] NSWSC 1092
- Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
- Latoudis v Casey (1990) 170 CLR 534
- O'Brien v Hutchinson [2012] NSWSC 429
- Prosecutor General, Department of Environment and Climate Change v Gleeson (2009) 165 LGERA 99
- Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
- R v Feeney [2012] ACTSC 153
- McNamara v Fenner [2017] NSWSC 1746 (appeal)