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Supreme Court 22 April 1999

Fosse v DPP & Anor

[1999] NSWSC 367

Public order & justice offences
DECISION : SUMMONS DISMISSED

Citation: Fosse v DPP & Anor [1999] NSWSC 367
Court: Supreme Court of New South Wales, Common Law Division
Date: 22 April 1999
Judge(s): Wood CJ at CL

Background

The applicant was charged with goods in custody under s 527C of the Crimes Act 1900 after National Crime Authority officers executed a search warrant at his home and found over $10,000 in cash. The applicant maintained the money represented his life savings and gambling winnings. A small quantity of cannabis was also found on the premises, though in circumstances that raised questions about its connection to the applicant.

The matter was heard in the Local Court at Sutherland across three days in 1998. On 1 September 1998, the magistrate found there was no prima facie case and dismissed the charge.

Following the dismissal, the applicant sought a costs order against the prosecution under s 81 of the Justices Act 1902. The magistrate refused that application. The applicant then commenced Supreme Court proceedings seeking orders in the nature of certiorari (to quash the costs refusal) and mandamus (to compel the Local Court to reconsider the matter according to law).

  • Whether the magistrate's refusal to award costs under s 81(4) of the Justices Act 1902 constituted a jurisdictional error, specifically a constructive failure to exercise jurisdiction
  • Whether the magistrate correctly applied s 81(4)(c), which requires satisfaction that the prosecution unreasonably failed to investigate a relevant matter suggesting the defendant might not be guilty
  • Whether the magistrate correctly applied s 81(4)(d), which allows costs where exceptional circumstances in the conduct of the proceedings make a costs order just and reasonable

Decision

Wood CJ at CL examined the magistrate's reasoning carefully. Under s 81(4), costs in favour of a dismissed defendant are not available as of right. A court must be affirmatively satisfied of one of the specified grounds, including unreasonable failure to investigate (s 81(4)(c)) or other exceptional circumstances in the prosecution's conduct (s 81(4)(d)).

On the s 81(4)(c) question, the magistrate had considered all relevant circumstances, including the pre-trial correspondence from the applicant's solicitors and the TAB dividend material, and concluded she could not be satisfied the NCA had unreasonably failed to investigate or that further investigation would have led to the proceedings not being brought. Wood CJ at CL found this was a genuine exercise of the magistrate's discretion, not a jurisdictional error.

On s 81(4)(d), the magistrate correctly identified that a bare finding in the defendant's favour was insufficient. Something about the manner in which the prosecution conducted the proceedings had to render a costs order just and reasonable. No such exceptional conduct was established on the facts.

The Supreme Court drew on the distinction, articulated in earlier authority, between a magistrate making a mistake of law and a magistrate constructively failing to exercise jurisdiction at all. Because the magistrate had applied the correct tests and addressed the relevant questions, her decision fell into the former category, which does not attract supervisory relief.

Orders Made

  • Summons dismissed
  • The parties were to be heard on costs of the summons

Key Takeaways

  • A magistrate's refusal to award costs under s 81(4) of the Justices Act 1902 will not be set aside merely because the defendant was successful in having charges dismissed; something more in the prosecution's conduct must be established.
  • Under s 81(4)(c), the defendant must satisfy the court that the prosecution unreasonably failed to investigate a relevant matter of which it was or ought to have been aware, and which suggested the defendant might not be guilty or that proceedings should not have been brought.
  • Under s 81(4)(d), the exceptional circumstances must relate to the conduct of the proceedings by the prosecution; the mere favourable outcome for the defendant does not meet this threshold.
  • Supervisory relief by way of certiorari or mandamus requires a constructive failure to exercise jurisdiction, not merely a mistaken or debatable exercise of it. A magistrate who identifies the correct test and applies it to the relevant circumstances performs a real exercise of jurisdiction, even if the outcome is open to debate.
  • In dismissing the summons, the Supreme Court confirmed the distinction drawn in Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) between a real (if possibly mistaken) exercise of jurisdiction and a purported exercise that misunderstands the nature of the function being performed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 527C (goods in custody), s 556A
- Justices Act 1902 (NSW), s 81
- Evidence Act 1995 (NSW), s 137

Cases:
- Ex Parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 415 (Jordan CJ's articulation of constructive failure to exercise jurisdiction)
- Referred to in context of prosecutions (1989) 16 NSWLR 397 at 418, per Priestley JA