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District Court 16 March 2018

McFadyen v Director of Public Prosecutions (NSW)

[2018] NSWDC 68

Assault & violence
COSTS PARTY/PARTY CRIMINAL CASES COSTS APPLICATION REFUSED

Citation: McFadyen v Director of Public Prosecutions (NSW) [2018] NSWDC 68
Court: District Court of New South Wales
Date: 16 March 2018
Judge: Hatzistergos DCJ

Background

The applicant was charged in the Local Court with, among other offences, reckless grievous bodily harm under s 35(2) of the Crimes Act 1900 arising from an incident outside a fast food restaurant. The Local Court convicted him of that charge. He appealed to the District Court, which set aside the conviction on the ground that the Crown had not disproved his self-defence claim beyond reasonable doubt.

Following the successful appeal, the applicant applied for costs against the DPP under s 70 of the Crimes (Appeal and Review) Act 2001. That provision allows a court to award costs against a public prosecutor in defined, limited circumstances. The applicant sought to engage all four grounds in s 70(1).

The application was contested by the DPP. After written submissions and oral argument, Hatzistergos DCJ reserved and then delivered judgment refusing the application in full.

Legal Issues

  • Whether the police investigation into the alleged offences was conducted in an unreasonable or improper manner (s 70(1)(a))
  • Whether the proceedings were initiated without reasonable cause or conducted by the prosecutor in an improper manner (s 70(1)(b))
  • Whether the prosecutor unreasonably failed to investigate, or properly investigate, any relevant matter (s 70(1)(c))
  • Whether other exceptional circumstances existed making it just and reasonable to award costs (s 70(1)(d))

Decision

Ground s 70(1)(a): Unreasonable or improper investigation

The applicant argued that police failed to obtain statements from two witnesses present at the scene (a man identified only by his appearance, and the applicant's girlfriend), did not show him CCTV footage of the indoor altercation during his electronically recorded interview, and drafted a statement of facts that understated the number of times the complainant had struck him. The court rejected each limb. The man with the moustache had declined to assist police, and the girlfriend left the scene without apparently making further contact. A large number of witness statements had been assembled overall. The court noted that the statutory standard is unreasonableness or impropriety, not imperfection (at [24]). The failure to show the applicant the CCTV footage inside the restaurant during his interview also did not meet that threshold, nor did any complaint about the content of the statement of facts, which carries no evidentiary weight (at [26]). The ground was not made out (at [27]).

Ground s 70(1)(b): Proceedings initiated without reasonable cause or conducted improperly

On the first limb, the applicant argued the conviction was inevitable once the CCTV evidence was properly assessed and self-defence correctly applied. The court disagreed. The complainant had been seriously injured and whether the applicant's response was reasonable in the circumstances as he perceived them was a genuinely disputed question of fact on which reasonable minds could differ. The proceedings were not doomed to failure and had real prospects of success. Defence counsel had not even submitted at trial that there was no prima facie case (at [35]-[36]). The court confirmed that a prosecutor's failure to discharge its onus does not by itself mean the proceedings were brought without reasonable cause (at [36]). On the second limb, improper conduct of the proceedings, the applicant criticised the prosecutor for calling witnesses who gave conflicting accounts, failing to seek leave under s 38 of the Evidence Act 1995 to cross-examine them, and making what were characterised as erroneous or extraordinary closing submissions. The court found no substance in any of these criticisms. The prosecutor had professional obligations to fulfil, the witnesses appeared to be making genuine efforts to give evidence, and the closing submissions were open to be traversed by defence counsel. Disagreeing with or characterising a submission as erroneous does not elevate it to improper conduct of proceedings (at [57]). The ground was not made out (at [37], [58]).

Ground s 70(1)(c): Unreasonable failure to investigate

The applicant contended that the prosecutor failed to investigate properly by not putting the CCTV footage of the indoor events to the applicant during his interview and by not taking steps to call the additional witnesses. The court found that the prosecutor had in fact obtained the relevant CCTV footage. Section 70(1)(c) speaks to a failure to investigate a relevant matter, not to a failure to correctly assess or interpret the results of the investigation. The court also found the applicant's limited recollection of events during the interview meant any further questioning would have been unlikely to change the picture (at [63]-[64]). The ground was not made out (at [65]).

Ground s 70(1)(d): Other exceptional circumstances

The applicant argued the case was exceptional because of the CCTV evidence and the way it had been handled by both police and the prosecutor. The court noted that s 70(1)(d) is directed to the conduct of proceedings, not to the investigation or the decision to commence proceedings. Even taking the applicant's complaints at their highest, it would not be just and reasonable to award costs where he had adequate opportunity to put contrary contentions to the Local Court and did so (at [70]). The ground was not made out.

Orders Made

  • The application for costs is refused.

Key Takeaways

  • A quashed conviction does not, without more, establish that proceedings were brought without reasonable cause. Under s 70 of the Crimes (Appeal and Review) Act 2001, the applicable test is whether the proceedings were doomed to failure or had no real prospects of success, not whether the prosecution ultimately failed to discharge its onus (at [35]-[36]).

  • The District Court confirmed that the standard for an unreasonable or improper investigation under s 70(1)(a) is one of unreasonableness or impropriety, not imperfection. A failure to obtain every possible witness statement, or to play the entirety of CCTV footage during a recorded interview, will not necessarily satisfy that standard (at [24], [26]).

  • Where self-defence turns on disputed questions of fact, including whether the defendant's belief in the need to defend himself was reasonable in the circumstances as he perceived them, those questions are properly left to a tribunal of fact. Their resolution in the defendant's favour on appeal does not make the original prosecution improper or causeless (at [35]).

  • Characterising prosecutorial submissions as erroneous or extraordinary does not make them improper conduct of proceedings for the purpose of s 70(1)(b). The court drew a clear distinction between submissions that an opponent disagrees with and conduct that rises to impropriety in an adversarial forum where contrary argument is available (at [57]).

  • Section 70(1)(c) targets a failure to investigate relevant matters, not a failure to correctly assess or interpret the outcome of an investigation already conducted. Obtaining CCTV footage satisfies the investigative obligation even if that footage is subsequently argued to have been misread or underweighted (at [64]).

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 s 2
- Crimes (Appeal and Review) Act 2001 ss 20(1)(a), 70
- Crimes Act 1900 s 61
- Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 29.7

Cases
- Attorney-General’s Reference (No 1 of 1983) [1983] 2 VR 410
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
- Dao v R [2011] NSWCCA 63
- De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868
- Environmental Protection Agency v Bulga Coal Management Pty Ltd (No 2) [2014] NSWLEC 70
- Halpin v Department of Gaming and Racing [2007] NSWSC 815
- JD v DPP (NSW) & Ors [2000] NSWSC 1092
- Kanan v Australian Postal and Telecommunications Union [1992] FCA 359
- R v Apostilides [1984] HCA 38
- R v Byrnes and Hopwood (1995) 183 CLR 501; [1995] HCA 1
- R v Katarzynski [2002] NSWSC 613
- R v Kneebone [1999] NSWCCA 279
- R v Lee (2002) 54 NSWLR 474; [2002] NSWCCA 186
- R v R [1989] 18 NSWLR 74
- RB v DPP (NSW) [2015] NSWSC 248