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District Court 14 October 2021

DM v R (No. 2)

[2021] NSWDC 814

Assault & violenceDomestic & family violencePublic order & justice offences
CRIME COSTS IN CRIMINAL CASES COSTS IN CRIMINAL CASES QUANTUM WHETHER PRINTING COSTS RECOVERABLE.

Citation: DM v R (No. 2) [2021] NSWDC 814
Court: District Court of NSW
Date: 14 October 2021
Judge(s): Neilson DCJ

Background

The appellant, a university lecturer with no prior criminal history, had been convicted in the Local Court of an assault on a child in the context of a domestic separation. On appeal, the District Court set aside that conviction in the earlier decision DM v R (No. 1) [2020] NSWDC 813.

The appellant then applied for costs of both the Local Court proceedings and the District Court appeal. The arresting officer, Constable Mounsey, had generated the court attendance notice approximately one hour after completing an electronically recorded interview with the appellant, having admitted during that interview that he did not know exactly what had happened between the appellant and the complainant.

The costs application required the District Court to assess whether the prosecution had been initiated without reasonable cause, and separately to determine the quantum of any costs award including fees for Queen's Counsel, junior counsel, solicitors, and printing.

  • Whether the prosecution was initiated without reasonable cause under s 70(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), either subjectively or objectively
  • Whether the investigation was conducted in an unreasonable or improper manner under s 70(1)(a)
  • Whether exceptional circumstances under s 70(1)(d) justified a costs award
  • The quantum of costs recoverable, including the recoverability of costs from both the Local Court and the District Court proceedings, fees for Queen's Counsel and junior counsel, solicitor's fees, and printing costs

Decision

Reasonable prospect of conviction. The court found that Constable Mounsey did not have a reasonable basis to charge the appellant. During the recorded interview, the constable himself stated that he did not know exactly what had happened, and he confirmed under cross-examination that his understanding had not changed by the time he issued the court attendance notice. He also admitted he was unfamiliar with the DPP Guidelines requiring a reasonable prospect of conviction before charging. The court held this demonstrated an absence of both subjective and objective reasonable cause.

Weaknesses in the underlying evidence. The court noted several evidential deficiencies that existed at the time of charging. The complainant gave inconsistent accounts of precisely where on his body the alleged blow landed. The complainant's mother had given evidence that conflicted with the complainant's account. Critically, a younger sibling present at the relevant time told police he had seen and heard nothing relevant, yet no statement from that witness was ever sought or placed before the court.

Costs of both proceedings. The court applied its earlier reasoning from Fisher v R (No 2) [2020] NSWDC 2, confirming that s 70 of the Crimes (Appeal and Review) Act 2001 and s 214 of the Criminal Procedure Act 1986 are to be interpreted consistently, and that costs of both the Local Court and appeal proceedings were recoverable.

Quantum. The court accepted the retention of Queen's Counsel was appropriate given the potential consequences for the appellant, including the risk to his career as a teacher and university lecturer and possible adverse consequences in family law proceedings. A senior counsel fee of $7,500 (plus GST: $8,250) was allowed. The claimed printing rate of $1.10 per page was rejected as unreasonable, with the court allowing a maximum of 40 cents per page for 950 pages, producing a printing allowance of $418 including GST. Total costs were assessed at $40,568.

Orders Made

  • The Crown is to pay to the appellant's solicitor the sum of $40,568 within 28 days, on account of the appellant's costs in the District Court and in the Local Court.

Key Takeaways

  • Under s 70(1)(b) of the Crimes (Appeal and Review) Act 2001, a prosecution is initiated without reasonable cause where, at the time of charging, the prosecutor either subjectively lacked belief in the sufficiency of the evidence or there were objectively no reasonable grounds to proceed.
  • A charging officer's own admission during a recorded interview that he did not know what had happened, combined with unfamiliarity with prosecution guidelines, can support a finding that no reasonable cause for the prosecution existed.
  • Section 70 of the Crimes (Appeal and Review) Act 2001 and s 214 of the Criminal Procedure Act 1986 operate consistently, and costs of both Local Court and appeal proceedings are recoverable where the relevant statutory threshold is met.
  • The District Court confirmed that retaining Queen's Counsel can be justified in criminal appeal proceedings where conviction carries serious professional and personal consequences for the accused, even where the proceedings originate in the Local Court.
  • Printing costs are subject to close scrutiny on assessment: the court rejected a claimed rate of $1.10 per page and substituted 40 cents per page as the maximum reasonable rate.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 28, 70
- Criminal Procedure Act 1986 (NSW), ss 212 to 214

Cases
- DM v R (No. 1) [2020] NSWDC 813
- Fisher v R (No 2) [2020] NSWDC 2
- A v New South Wales (2007) 230 CLR 500
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
- Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257