Citation: Rowlands v R (No 2) [2022] NSWDC 273
Court: District Court of New South Wales
Date: 18 March 2022
Judge(s): P Taylor SC DCJ
Background
The appellant had been convicted in the Local Court of offensive language and resisting arrest. He appealed to the District Court, which upheld the appeal and set aside both convictions (reported as Rowlands v R [2021] NSWDC 723).
Following that successful appeal, the appellant applied for an order that the Director of Public Prosecutions pay his costs of the appeal proceedings. The DPP opposed the application.
Legal Issues
- Whether the threshold requirements in s 70 of the Crimes (Appeal and Review) Act 2001 were satisfied so as to permit a costs order against a public prosecutor
- Specifically, whether the police investigation was conducted in an unreasonable or improper manner (s 70(1)(a))
- Whether the prosecution was initiated without reasonable cause or in bad faith, or conducted improperly (s 70(1)(b))
- Whether the prosecutor unreasonably failed to investigate relevant matters suggesting the appellant might not be guilty (s 70(1)(c))
- Whether exceptional circumstances existed justifying an award of costs under s 70(1)(d)
Decision
The threshold under s 70 governs everything
The court confirmed that, at common law, costs are not awarded in criminal proceedings and that any such award requires statutory authority. Under s 70 of the Crimes (Appeal and Review) Act 2001, a successful appellant cannot obtain a costs order against a public prosecutor merely by winning the appeal. The appellant must establish one of four specific grounds, each directed at impropriety or unreasonableness in the investigation or prosecution. Conduct alleged to constitute the offences themselves is irrelevant to that threshold.
Alleged investigative failures did not satisfy s 70(1)(a)
The appellant pressed several alleged investigative failures: not obtaining CCTV footage from a nearby hotel, not securing a bystander's mobile phone recording, not interviewing passers-by, not questioning surrounding shop staff, and delay in preparing police statements. The court rejected each. The hotel footage could not have established or disproved the core charges. The bystander's recording appeared to commence only after the alleged offences had concluded, and the police already had two CCTV recordings of the relevant events. Passers-by captured on footage showed no reaction to the interaction, suggesting they had nothing useful to offer, and it was unreasonable to expect police to abandon an active incident to canvass witnesses.
Remaining grounds also failed
The court worked through each paragraph of s 70(1) in turn and was not satisfied that any of them was made out on the evidence. The proceedings were not shown to have been initiated without reasonable cause or in bad faith, nor was there evidence of improper conduct in the prosecution. No exceptional circumstances were established that would make it just and reasonable to award costs under s 70(1)(d).
The Costs in Criminal Cases Act pathway
The court noted in passing that an entirely separate regime exists under the Costs in Criminal Cases Act 1967, under which a court may grant a certificate (rather than directly award costs) that can then be taken to the Attorney General. Because no application for such a certificate had been made, the court made no further orders and declined to indicate whether such an application would succeed.
Orders Made
- The appellant's application for an order for costs is dismissed.
Key Takeaways
- Under s 70 of the Crimes (Appeal and Review) Act 2001, a successful criminal appellant faces a significantly higher bar for obtaining costs against a public prosecutor than a successful civil litigant faces: success on appeal alone is insufficient.
- The threshold requires proof of unreasonableness or impropriety in the investigation or prosecution, not merely proof that the conviction could not stand.
- Alleged failures to gather additional evidence will not satisfy s 70(1)(a) where the evidence in question was unlikely to bear on the charged conduct or where investigators already held sufficient material from other sources.
- Conduct forming part of the alleged offence itself, including questions about police behaviour during the incident, is not a basis for a costs order under s 70, which is directed solely at features of the investigation and prosecution process.
- A separate certificate mechanism exists under the Costs in Criminal Cases Act 1967, which operates differently from a direct costs order under the Crimes (Appeal and Review) Act 2001; the two regimes are not interchangeable.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 28, 70
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4
Cases:
- Rowlands v R [2021] NSWDC 723
- State of New South Wales v Cuthbertson [2018] NSWCA 320
- Regina v JS (No 2) [2007] NSWCCA 309
- Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13
- JD v DPP & Ors [2000] NSWSC 1092
- Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257