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District Court 23 April 2024

R v Kellson

[2024] NSWDC 137

Assault & violencePublic order & justice offences
CRIMINAL LAW COSTS

Citation: R v Kellson [2024] NSWDC 137
Court: District Court of New South Wales
Date: 23 April 2024
Judge(s): Hanley SC DCJ

Background

The respondent was charged by NSW Police in November 2021 with resisting and assaulting officers in the execution of duty. He was represented throughout the Local Court proceedings by a solicitor employed by the Aboriginal Legal Service (ALS). After a defended hearing spanning three days, the Magistrate found the respondent's arrest was unlawful and that arresting officers had engaged in deliberate impropriety, including colluding on their statements and giving false evidence. The charge was dismissed for want of admissible evidence.

The Magistrate awarded professional costs in favour of the respondent under s 213 of the Criminal Procedure Act 1986 (NSW) (CPA). NSW Police appealed that costs order to the District Court, accepting that the s 214 threshold conditions for a costs award had been met, but arguing that no professional costs had actually been incurred because the ALS, as a legal aid provider, had not charged the respondent for its services.

The appeal therefore turned on a discrete question: whether costs can be awarded under the CPA where an accused is represented by a legal aid organisation whose solicitors are salaried employees rather than fee-for-service practitioners.

  • Whether the Magistrate erred in awarding professional costs to a defendant represented by the ALS, given that no invoice was rendered to the defendant personally.
  • Whether the ALS, as a legal aid organisation, "incurred" professional costs within the meaning of the CPA.
  • Whether the appellant (NSW Police) discharged the onus of demonstrating that no recoverable costs were incurred.

Decision

Hanley SC DCJ dismissed the appeal, finding no factual, legal, or discretionary error in the Magistrate's costs order. The District Court was satisfied that the ALS did incur professional costs in representing the respondent, even though those costs were not billed directly to him. The court reasoned that employing a salaried solicitor to conduct a multi-day hearing constitutes a real outlay of resources and expense by the organisation, and that the inability to deploy that solicitor elsewhere was itself a cost.

The court also noted that the ALS had invited police to withdraw the charges before the hearing, offering to forgo a costs application if they did so. Police pressed on despite an internal assessment that the case had little prospect of success. In those circumstances, the court found it was appropriate for the ALS to recover the costs it had incurred.

The appellant tendered a document (Exhibit B) in support of its argument that the ALS could not recover costs, but the District Court found this did not discharge the appellant's onus. The court stated it was independently satisfied that the s 214 CPA threshold was met and would have made a similar order in any event.

The District Court also rejected the appellant's reliance on Police v Horsfield; Police v Dowd [2013] NSWLC 17 as authority for the proposition that costs could only be awarded to the ALS where private counsel had been separately briefed. The court held that was not what that decision established, and that fees for private counsel briefed by a solicitor would in any case constitute a disbursement included in the instructing solicitor's professional costs.

Orders Made

  • The appeal is dismissed.
  • The Magistrate's costs orders are confirmed.

Key Takeaways

  • The District Court held that a legal aid organisation such as the ALS can incur professional costs within the meaning of the CPA even where its solicitors are salaried employees and no fee is billed directly to the client.
  • In dismissing the appeal, the court found that deploying a salaried solicitor to conduct a defended hearing represents a real organisational cost, including the opportunity cost of that solicitor being unavailable for other matters.
  • Where a prosecutor presses on with proceedings despite an invitation to withdraw and an internal assessment of poor prospects, this weighs in favour of a costs award under the CPA framework.
  • The appellant bore the onus of demonstrating that the ALS was not entitled to recover costs; tendering a document without adequate supporting evidence was insufficient to discharge that onus.
  • Under s 214 of the CPA, professional costs are only available where at least one specified threshold is met, such as improper conduct of the investigation or proceedings. Here, the threshold was undisputed, given findings of officer collusion and deliberate impropriety.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 211, 213, 214, 215
- Crimes (Appeal and Review) Act 2001 (NSW), ss 23(2)(b), 27(2)
- Legal Aid Commission Act 1979 (NSW), ss 42, 44
- Evidence Act 1995 (NSW), s 138
- Crimes Act 1900 (NSW), s 58

Cases:
- McNab v DPP [2021] NSWCA 289
- State of NSW v Robinson [2019] HCA 46
- Police v Horsfield; Police v Dowd [2013] NSWLC 17
- Latoudis v Casey (1991) 170 CLR 534
- Oshlack v Richmond River Council [1998] HCA 11
- Rodden v R [2023] NSWCCA 202
- Law Society of NSW v Foreman (1994) 34 NSWLR 408
- Ly v Jenkins (2001) 187 ALR 178
- Acuthan v Coates (1986) 6 NSWLR 472
- Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
- Gundry v Sainsbury [1910] 1 KB 645
- Shaw v Yarranova Pty Ltd [2011] VSCA 55