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District Court 22 March 2024

R v Mikhaylova

[2024] NSWDC 90

Other
COSTS APPLICATION CRIMINAL PROCEDURE ACT 1986 (NSW)

Citation: R v Mikhaylova [2024] NSWDC 90
Court: District Court of New South Wales
Date: 22 March 2024
Judge: D Barrow SC DCJ

Background

An unrepresented appellant successfully defended two charges of common assault in the NSW Local Court. Both charges were dismissed on 3 November 2023 on the basis that no prima facie case had been established against her.

Following dismissal, the appellant applied for professional costs against the prosecution under sections 213 and 214 of the Criminal Procedure Act 1986 (NSW). The Magistrate refused that application, and the appellant lodged a Notice of Appeal to the District Court on 10 November 2023, appealing solely against the refusal of costs.

The Crown challenged the District Court's jurisdiction to hear the appeal at all, arguing that no statutory basis existed for a defendant to appeal to the District Court against a refusal of a costs application where the underlying charges had already been dismissed.

  • Whether the District Court has jurisdiction to hear an appeal brought solely against a Local Court Magistrate's refusal to grant a costs application under the Criminal Procedure Act 1986, where the substantive criminal charges have been dismissed.
  • Whether sections 28(2) and 28(3) of the Crimes (Appeal and Review) Act 2001 (NSW) independently conferred jurisdiction on the District Court to hear such an appeal.

Decision

Barrow SC DCJ held that the District Court's jurisdiction is established by statute and is limited to the appeals expressly provided for in that legislation. Under Part 3 Division 1 of the Crimes (Appeal and Review) Act 2001 (NSW), a defendant may appeal to the District Court against a conviction or sentence. The Act makes no provision for a defendant to appeal solely against a refusal of a costs application following dismissal of charges.

The contrast with section 23(2) of the same Act was telling: that provision expressly grants a prosecutor the right to appeal against a costs order made against it in the Local Court. The absence of any equivalent provision for defendants was treated as a deliberate legislative choice, not an oversight capable of being filled by construction.

The appellant argued that section 28(2) of the Act, which allows the District Court on an appeal to exercise any function the Local Court could have exercised, gave the Court independent jurisdiction. His Honour rejected this reading. Section 28(2) is a power available when determining an appeal properly before the Court; it does not itself create the right to bring an appeal. Without a valid underlying appeal, section 28(2) is not engaged.

His Honour drew support from the NSW Court of Appeal decision in Director of Public Prosecutions v Yalda [1998] NSWCA 277, where Mason P reached the same conclusion under the predecessor legislation, the Justices Act 1902. His Honour found no authority decided since Yalda, or since the enactment of the Crimes (Appeal and Review) Act, that departed from that position.

Orders Made

  • The appeal was dismissed for want of jurisdiction.

Key Takeaways

  • The District Court confirmed that its criminal appellate jurisdiction is entirely statutory in origin and cannot be extended by implication or liberal construction.
  • Under sections 11 and 12 of the Crimes (Appeal and Review) Act 2001, a defendant's right of appeal to the District Court is confined to appeals against conviction or sentence; no equivalent right exists to appeal a refusal of costs following dismissal of charges.
  • A clear asymmetry exists in the legislation: section 23(2) expressly grants prosecutors the right to appeal costs orders made against them, while no corresponding provision covers a defendant's appeal against a costs refusal.
  • Section 28(2) of the Crimes (Appeal and Review) Act, which empowers the District Court to exercise any function the Local Court could have exercised, operates only within the scope of an appeal already properly before the Court and does not itself found jurisdiction.
  • In dismissing the appeal, the Court applied and affirmed the Yalda principle, which has now been confirmed as continuing to reflect the law under the current statutory framework.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1986 (NSW), ss 211, 212, 213, 214
- Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, ss 11, 12, 23, 28, 70
- District Court Act 1973 (NSW), s 166
- Costs in Criminal Cases Act 1967 (NSW), s 213
- Justices Act 1902 (NSW), ss 120, 122 (repealed)

Cases:
- Director of Public Prosecutions v Yalda [1998] NSWCA 277
- Latoudis v Casey (1990) 170 CLR 534
- Logue v DPP (No 1) [2023] NSWDC 395
- Logue v DPP (No 2) [2023] NSWDC 494