Citation: Dhaliwal v R [2025] NSWDC 95
Court: District Court of New South Wales
Date: 28 March 2025
Judge: Wass SC DCJ
Background
The applicant was charged with common assault of his wife. The Crown case required proof beyond reasonable doubt that he had deliberately dragged her by the hair. He was convicted in the Local Court at Blacktown on 25 March 2024, following a hearing spread across three days in April 2023, November 2023, and March 2024.
On 5 November 2024, the District Court allowed the applicant's appeal against that conviction. During the appeal hearing, the Crown prosecutor conceded that the evidence could not establish deliberate hair-pulling to the standard required for a conviction.
Following the successful appeal, the applicant applied for a costs order under s 70 of the Criminal (Appeal and Review) Act 2001 (NSW) (CARA) and a costs certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) (CCCA). Both applications were opposed by the Director of Public Prosecutions.
Legal Issues
- Whether the investigation was conducted in an unreasonable or improper manner under s 70(1)(a) of the CARA
- Whether the Local Court proceedings were initiated without reasonable cause under s 70(1)(b) of the CARA
- Whether exceptional circumstances existed making it just and reasonable to award costs under s 70(1)(d) of the CARA
- Whether a costs certificate should be granted under the CCCA on the basis that, had the prosecution known all relevant facts before instituting proceedings, it would not have been reasonable to proceed
Decision
The court found that the prosecution evidence, taken at its highest, could not support a finding that the applicant had deliberately pulled the complainant by the hair. The complainant herself was unconscious and unable to give evidence about the incident. Of the two eyewitnesses, one described the applicant holding the complainant in a hugging or lifting motion with no mention of hair-pulling. The other stated that it "looked like" hair-pulling but expressly acknowledged he could not be sure, describing it as an impression formed because the complainant's hair was "everywhere."
The court found the police investigation was conducted in an unreasonable and improper manner. Notably, one witness was questioned using another witness as an informal interpreter, rather than an accredited interpreter, meaning that second witness was exposed to the first witness's account. The court found that none of the civilian eyewitnesses ultimately came up to proof on the critical element of deliberate hair-pulling, and that a hypothetical prosecutor, properly informed of the evidence, would have recognised this before initiating proceedings.
Applying the test drawn from the authorities, the court was satisfied that the proceedings were initiated without reasonable cause and that the prosecution case was, at all times, one that could not succeed on the particularised charge. The Crown's own concession during the appeal hearing reinforced this conclusion. The court held that the investigation was unreasonable and improper, proceedings were initiated without reasonable cause, and exceptional circumstances existed warranting a costs order across both the Local Court and District Court proceedings.
On the CCCA certificate, the court held that a hypothetical prosecutor in possession of all relevant facts would not have reasonably instituted the proceedings. The applicant's own conduct contributing to the proceedings was found to have been reasonable in all the circumstances. The certificate was granted as a precautionary measure in case the costs order was later challenged.
Orders Made
- The respondent is to pay the applicant's costs in the sum of $33,257, covering Local Court and District Court appeal proceedings, excluding day two of the District Court hearing, payable within 28 days.
- A costs certificate under the Costs in Criminal Cases Act 1967 (NSW) is granted.
- The applicant's representatives are to provide an appropriate certificate to the judge's associate within 7 days for endorsement.
Key Takeaways
- The District Court confirmed that a costs order under s 70 of the CARA is available where the police investigation was conducted in an unreasonable or improper manner, including through the use of a non-accredited interpreter who was also a witness in the matter.
- Under s 70 of the CARA, proceedings are initiated "without reasonable cause" where the Crown case, as particularised, is so obviously incapable of success that a reasonable prosecutor, properly informed, would not have instituted or continued them.
- A prosecutor's concession during an appeal that the evidence cannot establish the charged offence beyond reasonable doubt is a relevant factor supporting both a costs order and the grant of a costs certificate.
- A costs certificate under the CCCA proceeds on the assumption that the prosecution holds hypothetical knowledge of all evidence, including that witnesses may not come up to proof on a critical element. Where the evidence could never have sustained the charge as particularised, it may be unreasonable to have instituted proceedings at all.
- The court granted both the costs order and the CCCA certificate, noting the certificate would serve as a fallback if the costs order were later challenged.
Legislation and Cases Referenced
Legislation
- Costs in Criminal Cases Act 1967 (NSW)
- Criminal (Appeal and Review) Act 2001 (NSW), s 70
Cases
- Allerton v DPP (1991) 53 A Crim R 33
- Geneff v Peterson (1986) 19 IR 40
- Kamali v R; Mosawi v R; Shahsawari v R; Bejoushin v R [2013] NSWSC 799
- Mordaunt v The DPP [2007] NSWCA 121
- Nimmo, Re Application for an Inquiry relating to an Election for an Office in the Australian Education Union (NT Branch) (No 2) [2011] FCA 728
- Rodden v R [2023] NSWCCA 202