Citation: Hariz v NSW Director of Public Prosecutions [2020] NSWDC 394
Court: District Court of New South Wales
Date: 28 August 2020
Judge(s): Smith SC DCJ
Background
The applicant was convicted in the Local Court in September 2019 of an offence under s 351A(2) of the Crimes Act 1900 (NSW), which related to allegations that he had incited his seven-year-old daughter to physically assault a teacher. He appealed to the District Court, where Smith SC DCJ upheld the appeal and quashed the conviction in March 2020.
Following the quashing of the conviction, the applicant sought two forms of cost relief: an order that the respondent (the Director of Public Prosecutions) pay his professional costs in both the Local Court and the District Court, and, in the alternative, a certificate under the Costs in Criminal Cases Act 1967 (NSW) that would enable him to apply for costs from consolidated revenue.
The central question was whether the statutory preconditions for a costs order against a public prosecutor had been satisfied, and if so, what amount was just and reasonable.
Legal Issues
- Whether the prosecution's investigation was conducted in an unreasonable or improper manner, or whether the prosecutor unreasonably failed to investigate relevant matters suggesting the applicant might not be guilty, thereby satisfying the preconditions under s 214 of the Criminal Procedure Act 1986 (NSW) and s 70 of the Crimes (Appeal and Review) Act 2001 (NSW)
- Whether, if those preconditions were met, it was just to exercise the discretion to award costs
- How to quantify the professional costs that were just and reasonable for proceedings in both the Local Court and the District Court
- Whether, as an alternative, a certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) should be granted
Decision
The District Court was satisfied that the preconditions for a costs order were met. The court found that the prosecution had unreasonably failed to investigate relevant matters of which it was or ought reasonably to have been aware, specifically the failure to take any steps to obtain evidence from the applicant's daughter or other available witnesses, despite the reliability of the primary prosecution witness being a live issue. That failure engaged the grounds in both s 214(c) of the Criminal Procedure Act and s 70(c) of the Crimes (Appeal and Review) Act, which are framed in essentially identical terms.
Having found the preconditions satisfied, the court exercised its discretion to award costs, concluding it was just to do so in the circumstances. The court noted that both the power to award costs under these provisions and the power to issue a certificate under the Costs in Criminal Cases Act are discretionary. Because the costs order was granted, it was unnecessary to consider the alternative certificate application.
On quantification, the court assessed what was just and reasonable by reference to the nature and complexity of the proceedings. It concluded that the matter did not warrant senior counsel, but did involve sufficient complexity to justify junior counsel with some experience. The court applied a daily rate of $3,000 for counsel and assessed the number of hearing and preparation days for each set of proceedings separately.
The court allowed for effectively three days of work referable to the Local Court proceedings (resulting in a $9,000 award) and four days referable to the District Court proceedings, which included the appeal hearing, the costs hearing, and written submissions (resulting in a $12,000 award).
Orders Made
- The respondent pay the applicant's costs of the proceedings in the Local Court in the amount of $9,000.
- The respondent pay the applicant's costs of the proceedings in the District Court in the amount of $12,000.
Key Takeaways
- Under s 214 of the Criminal Procedure Act 1986 (NSW) and s 70 of the Crimes (Appeal and Review) Act 2001 (NSW), professional costs against a public prosecutor are available only where one or more specified preconditions are met, including where the prosecutor unreasonably failed to investigate relevant matters suggesting the accused might not be guilty.
- A successful appeal and quashed conviction do not automatically entitle an applicant to a costs order; the statutory preconditions must be independently satisfied, and the discretion to award costs must still be exercised in favour of the applicant.
- The District Court confirmed that s 214 of the Criminal Procedure Act and s 70 of the Crimes (Appeal and Review) Act are framed in essentially identical terms, and that the District Court may exercise the Local Court's costs powers on appeal by reason of s 28(2) of the Crimes (Appeal and Review) Act.
- Quantification of just and reasonable costs involves an assessment of the complexity of the proceedings, the seniority of counsel reasonably required, and the number of days of work properly attributable to each stage of proceedings.
- Where a costs order is available under the Criminal Procedure Act or Crimes (Appeal and Review) Act, there is no need to consider the alternative route of a certificate under the Costs in Criminal Cases Act 1967 (NSW).
Legislation and Cases Referenced
Legislation:
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3
- Crimes Act 1900 (NSW), s 351A(2)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 28, 70
- Criminal Procedure Act 1986 (NSW), ss 212, 213, 214
Cases:
- Caltex Refining Co Pty Ltd v Maritime Services Board (NSW) (1995) 36 NSWLR 552
- Catch the Fires Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207
- Cliftleigh Haulage Pty Limited v Byron Shire Council [2007] NSWCCA 13
- Dimozantos v R (1991) 56 A Crim R 345
- Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44
- JD v DPP [2000] NSWSC 1092
- Jones v Trad (2013) 86 NSWLR 241
- Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
- R v Eade [2002] NSWCCA 257
- R v Holliday (2017) 260 CLR 650
- Sharp v Wakefield [1891] AC 173
- Sunol v Collier (No 2) (2012) 289 ALR 128