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Local Court 24 June 2022

Police v Bremner

[2022] NSWLC 1

Domestic & family violence
COSTS

Citation: Police v Bremner [2022] NSWLC 1
Court: Local Court of NSW
Date: 24 June 2022
Judge(s): Shields LCM

Background

The applicant was charged with criminal offences and named as the respondent in a final apprehended domestic violence order application, arising from an alleged incident on 22 May 2020 in which he drove away from his former spouse's home while she was reaching through a car window to say goodbye to one of their children. When police first attended, the initial attending officer concluded no offence had been committed, noting the complainant's own view that the incident was unintentional and the absence of any injury.

The matter came before the Local Court approximately a month later after the complainant re-contacted police, this time providing emails involving her family law solicitor. A different officer, who became the Officer-in-Charge (OIC), then conducted a video evidence interview (DVEC) with the complainant. The DVEC was ultimately excluded at the hearing. The prosecution's case collapsed due to widespread evidence contamination, and the charges and the associated domestic violence order application were dismissed after the prosecution conceded.

Senior Counsel for the applicant then applied for costs under section 213 of the Criminal Procedure Act 1986 (NSW). The applicant sought $115,960.49 in total professional costs. The court adjourned the costs application to allow quantification and written submissions.

Legal Issues

  • Whether the discretion to award costs under section 213 of the Criminal Procedure Act was enlivened by the dismissal of the charges.
  • Whether the applicant had established one or more of the grounds in section 214(1) of the Criminal Procedure Act necessary to justify a costs order, specifically under subsections (a) (unreasonable or improper act or omission by the prosecutor) and (c) (failure to investigate exculpatory matters).
  • What amount of professional costs was "just and reasonable" under section 213(2), and what role the Legal Profession Uniform Law (NSW) played in that assessment.

Decision

Preliminary: Discretion enlivened

The prosecution conceded that the dismissal of the charges enlivened the court's discretion to award costs under section 213. The remaining question was whether the applicant could bring the case within one of the grounds in section 214(1), which operates as a plain statutory limitation on that discretion (at [22], [30]).

Ground 1(a): Unreasonable or improper act or omission

The court found three distinct failures by the OIC, each amounting to unreasonable and improper conduct within the meaning of section 214(1)(a). First, the OIC failed to consult Senior Constable Karazinov despite the COPS record making his earlier involvement, and the complainant's significantly changed account, immediately apparent (at [34]-[35]). Second, the OIC failed to question the complainant about the material inconsistencies between her original account and the later DVEC version, even though those inconsistencies arose in the context of ongoing family law proceedings in which a domestic violence conviction would have directly affected custody (at [36]-[37]). Third, the manner in which the OIC spoke to and interviewed the complainant and children inevitably and seriously tainted their evidence, rendering it unsafe to act upon and ultimately causing the proceedings to be dismissed (at [38]).

Ground 1(c): Failure to investigate exculpatory matters

The court was satisfied the applicant had also proved matters under section 214(1)(c), concerning the OIC's failure to investigate with an emphasis on the discovery of exculpatory matters (at [31], [49]).

Quantum: Just and reasonable costs

The total costs claimed were $115,960.49, supported by costs agreements that the court accepted were prima facie fair and reasonable under the Legal Profession Uniform Law (NSW) (at [47]). The court confirmed, however, that a costs award of this kind is in the nature of an indemnity but is rarely a complete indemnity, and that section 213(3) requires an independent assessment of what is just and reasonable regardless of the prima facie effect of a compliant costs agreement (at [45]-[46], [48]). The court assessed just and reasonable costs at $100,000, allowing the full amount of counsel's fees within that figure (at [50]).

Orders Made

  • Application for costs granted.
  • The Prosecutor ordered to pay professional costs of $100,000 to the Applicant, payable to the Registrar of the Local Court for payment to the Applicant.

Key Takeaways

  • Under sections 213 and 214 of the Criminal Procedure Act 1986 (NSW), the dismissal of charges enlivens the court's discretion to award costs, but the applicant carries the burden of bringing the case within one of the four specified grounds in section 214(1) before any order can be made (at [28], [30]).

  • A police investigation may be found unreasonable or improper under section 214(1)(a) even without gross departure from optimum standards; the test is purely objective, and individual failures such as not consulting a prior attending officer, not challenging a materially changed complainant account, and conducting interviews in a manner that taints witness evidence can each independently satisfy that standard (at [26], [35]-[38]).

  • Where an OIC is on clear notice that a complainant's account has materially changed after discussions with other witnesses and a solicitor in concurrent Family Law proceedings, a failure to investigate those inconsistencies is not merely suboptimal but can be characterised as both unreasonable and improper (at [36]-[37]).

  • A costs award under section 213 is in the nature of an indemnity but is not a complete indemnity; the court retains an independent obligation to assess what is just and reasonable, and that obligation is not displaced by the prima facie effect of a costs agreement that complies with the Legal Profession Uniform Law (NSW) (at [45]-[46]).

  • Compliance with the Legal Profession Uniform Law (NSW) costs agreement requirements creates a prima facie presumption that costs are fair and reasonable, but that presumption remains capable of being displaced on a full assessment, and the court's statutory duty under section 213(3) to determine a just and reasonable amount operates separately from that presumption (at [44], [46]).

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 213, 214
- Legal Profession Uniform Law (NSW) , ss 172 ( 1) & (2)

Cases
- Cachia v Hanes (1994) 179 CLR 403
- Fosse v DPP [1999] NSWSC 367
- Halpin v Department of Gaming and Racing [2007] NSWSC 815
- JD v DPP [2000] NSWSC 1092
- Latoudis v Casey (1990) 170 CLR 534
- Majinski v The State of Western Australia [2013] WASCA 10
- Morgan v Director of Public Prosecutions [2020] NSWSC 1605
- Nguyen v Oberoi Hotels Pty Ltd [2007] VSC 196
- Norton v Senior Constable Morphett & Anor (1995) 83 A Crim R 90