AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 22 October 2020

R v AP

[2020] NSWDC 676

Assault & violencePublic order & justice offences

Citation: R v AP [2020] NSWDC 676
Court: District Court of New South Wales
Date: 22 October 2020
Judge: Yehia SC DCJ

Background

The applicant was a young person who had been found guilty in the Children's Court of assaulting a police officer in the execution of duty and resisting a police officer in the execution of duty. He successfully appealed those findings of guilt to the District Court, with judgment delivered on 24 August 2020.

In the appeal judgment, the court found that the applicant had not been lawfully detained under s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) at the time the alleged offences occurred. Because the prosecution could not establish that the officers were acting in the lawful execution of their duty, an essential element of each offence was not proved. The court also found that the evidence of the applicant's conduct was obtained as a consequence of an impropriety by police, and indicated it would have excluded that evidence under s 138 of the Evidence Act 1995 (NSW) in any event.

Following the successful appeal, the applicant sought an order that the prosecution pay his legal costs. The only available pathway for that order was s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW), which requires satisfaction that the investigation into the alleged offence was conducted in an unreasonable or improper manner.

  • Whether s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) requires deliberate, intentional, or morally culpable impropriety before a costs order can be made against a public prosecutor following a successful appeal.
  • Whether the obtaining of evidence by police who were not acting in the lawful execution of their duty, or who obtained that evidence in consequence of an unlawful exercise of police powers, can constitute an "improper investigation" for the purposes of s 70(1)(a).
  • What conduct constituted the "investigation" into the offences in this case, and whether that investigation was conducted improperly.

Decision

The court rejected the Crown's submission that moral culpability, deliberate conduct, or intentional impropriety is a necessary ingredient of an "improper" investigation under s 70(1)(a). Relying on the High Court's statement in The Queen v Byrnes and Hopwood (1995) 183 CLR 501, the court confirmed that impropriety does not depend on an alleged offender's consciousness of wrongdoing. Rather, impropriety consists in a breach of the standards of conduct that would be expected of a person in the relevant position, assessed by reasonable persons with knowledge of that person's duties, powers, and authority.

The Crown had pointed to the court's own earlier observations in the appeal judgment that the police conduct was inadvertent rather than deliberate or reckless, arguing this weighed against a finding of impropriety. The court was unpersuaded. The fact that the police may have been motivated by a genuine desire to protect an intoxicated young person did not transform otherwise unlawful conduct into conduct that met the required standard.

The court also addressed what constituted the "investigation" in this particular case. There were no formal interviews, inquiries, or other investigative procedures conducted after the incident. The entirety of the evidence relied upon consisted of police body-worn camera footage and the eyewitness accounts of the officers themselves, all obtained during the period of unlawful detention. Because that evidence was obtained either while police were not acting in the execution of their duty, or in consequence of an impropriety, the investigation as a whole was conducted improperly within the meaning of s 70(1)(a).

The application for costs was granted.

Orders Made

  • The applicant be awarded the legal costs of his appeal, with costs to be agreed between the parties.

Key Takeaways

  • The District Court held that s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) does not require deliberate, intentional, or morally culpable conduct. An inadvertent breach of required standards can still constitute an improper investigation.
  • Impropriety, applying the High Court's formulation in Byrnes and Hopwood, is assessed objectively: it consists of a departure from the standards of conduct reasonably expected of a person in the relevant position, regardless of that person's subjective awareness.
  • Where the only evidence underpinning an allegation was obtained during a period of unlawful detention, that evidence-gathering process can itself constitute the entire "investigation" for the purposes of s 70(1)(a).
  • Obtaining evidence in consequence of an unlawful exercise of police powers can bring an investigation within the scope of "improper" conduct under s 70(1)(a), even absent bad faith or sinister intent.
  • Under s 70 of the Crimes (Appeal and Review) Act 2001 (NSW), a successful appellant is not automatically entitled to costs following a conviction being set aside. One of the prescribed grounds in ss 70(1)(a)-(d) must be established.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 28(3), 70(1)(a)
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 206
- Criminal Procedure Act 1986 (NSW), s 214(1)
- Evidence Act 1995 (NSW), s 138

Cases
- R v DB; R v AP [2020] NSWDC 472
- Ian Campbell & 4 Ors v Director of Public Prosecutions (NSW) [2009] NSWSC 973
- The Queen v Byrnes and Hopwood (1995) 183 CLR 501
- Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151
- Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219