Supreme Court New South Wales Medium Neutral Citation: Basic v Senior Constable Brien [2020] NSWSC 1425 Hearing dates: 25 September 2020 Date of orders: 16 October 2020 Decision date: 16 October 2020 Jurisdiction: Common Law Before: Harrison J Decision: Dismiss the amended summons filed on 18 August 2020 with costs. Catchwords: COSTS – judicial review of decision by Magistrate to refuse an application for costs in a criminal matter – whether jurisdictional error or error on the face of the record Legislation Cited: Crimes Act 1900 (NSW) ss 61L, 61N(2) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13(1) Criminal Procedure Act 1986 (NSW) s 214(1) Supreme Court Act 1970 (NSW) Cases Cited: Amante v R [2020] NSWCCA 34 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Chong v R [2017] NSWCCA 185 DL v The Queen (2018) 265 CLR 215; [2018] HCA 32 O'Brien v Hutchinson [2012] NSWSC 429 Re Minister for Immigration and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1; [2003] HCA 6 Western Freight Management Pty Ltd v Roads and Maritime Services, NSW [2013] NSWSC 260 Category: Principal judgment Parties: Kenan Basic (Plaintiff) Senior Constable Christopher Brien (First Defendant) The Local Court of New South Wales (Second Defendant) Representation: Counsel: D W Phillips (Plaintiff) J S Caldwell (First Defendant) Solicitors: El Baba Lawyers (Plaintiff) Acting General Counsel, NSW Police Force (First Defendant) Crown Solicitor for NSW (Second Defendant) File Number(s): 2020/35154 Publication restriction: Nil Judgment 1. HIS HONOUR: By his amended summons filed on 18 August 2020, Kenan Basic seeks an order in the nature of certiorari pursuant to s 69(1) of the Supreme Court Act 1970 quashing the decision of his Honour Magistrate Walsh made on 18 July 2019 refusing Mr Basic's application for costs in criminal proceedings. He seeks an associated order that the matter be remitted to the Local Court of New South Wales in order that his application might be determined according to law. Mr Basic contends that his Honour made a series of errors in his consideration of the issues raised by s 214(1) of the Criminal Procedure Act 1986, which governed the original application. Mr Basic requires an extension of time within which to bring these proceedings. The extension of time is not opposed, in contrast to the substantive application that is. 2. The facts that generate the current dispute are not significantly in contest. They are summarised in the first defendant's written submissions in the following way. 3. On 23 November 2018, Mr Basic was charged with two counts of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (sequences 1 and 2), one count of inciting a person over the age of 16 years to commit an act of indecency contrary to s 61N(2) of the Crimes Act (sequence 3) and one count of stalking or intimidating a person with intent to cause fear of physical or mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (sequence 4). 4. These offences were alleged to have been committed on 22 November 2018 against Caitlyn Gray. On that date, Ms Gray stopped her car at a BP service station in Bankstown because its radiator had been damaged in a minor accident. Whilst Ms Gray was attempting to repair the damage, Mr Basic turned up and offered to help. When the radiator was fixed, Mr Basic suggested that he would follow Ms Gray in case she broke down. Ms Gray declined that offer. Mr Basic then asked Ms Gray to give him a hug and she did so. She later alleged that he then said, "We can go around the corner and you can give me something good in return. You can give me a hand job or blow job". Ms Gray allegedly said, "No, I am feeling uncomfortable", to which Mr Basic allegedly responded, "No, come on, it'll be five minutes". Ms Gray claimed that she repeatedly said "No", then got into her car and drove away. This encounter was captured on CCTV footage, but their conversation was not. 5. In the events that occurred, Mr Basic followed Ms Gray to the vicinity of 26 Milperra Road, Revesby, where she again stopped her car which was overheating. Mr Basic parked his car next to hers. Ms Gray alleged that she got out of her car and began to lift up the bonnet, when she was approached by Mr Basic. She claimed that he forcefully turned her around, grabbed her on her left breast and touched her vagina on the outside of her clothing. Ms Gray said that she ran to her car, drove away and called her boyfriend in distress. Ms Gray attended Liverpool Police Station later that day and provided a signed statement concerning the alleged offences. 6. Mr Basic was arrested on 23 November 2018, and charged with sequences 1 to 4. He voluntarily participated in an electronically recorded interview, during which he agreed that he had assisted Ms Gray with repairs at the service station and that he followed her to the Revesby address. He denied committing the offences. Mr Basic was refused bail and remained in custody from 27 to 28 November 2018. 7. On 28 November 2018, police met with Ms Gray and undertook a scene re-enactment. Whilst at the Revesby address, the police observed CCTV cameras in the vicinity. Images taken from the cameras depicted Mr Basic parking his vehicle next to Ms Gray's car, but did not show the conduct which was the subject of sequences 1 and 2. When the police informed Ms Gray that the alleged conduct was not captured in the Revesby CCTV footage, she said, "It could have been somewhere else. I'm not lying. It happened. I have no reason to lie". 8. Ms Gray attended Bankstown Police Station two days later. About 5:00pm on 29 November 2018, she admitted that she had lied about Mr Basic touching her breast and grabbing her vagina. She said, "I lied because I just wanted him to go to gaol because he shouldn't have said that to me. He was disgusting". That evening, the police contacted Mr Basic's solicitor, who was advised of Ms Gray's revelations and that the matter had accordingly been relisted the following day for a further bail hearing. The police indicated it was anticipated that sequences 1 and 2 would be withdrawn but that sequences 3 and 4 would proceed. Mr Basic was granted bail on 30 November 2018. 9. When the proceedings were next listed on 9 January 2019, sequences 1 and 2 were withdrawn. On 1 May 2019, the police notified Mr Basic that sequences 3 and 4 would also be withdrawn. That occurred on 6 May 2019, and Mr Basic applied for costs. 10. At the hearing of the costs application on 4 July 2019, no oral submissions were made by either party. Mr Basic's solicitor filed written submissions claiming that a costs order should be made in his favour as the investigation into the alleged offences was conducted in an unreasonable or improper manner, and that the first defendant unreasonably failed to investigate (or properly to investigate) a matter of which he was aware and which suggested that Mr Basic might not be guilty or that the proceedings should not have been brought: s 214(1)(a) and (c) of the Act. Among other things, Mr Basic's solicitor tendered a summary of the CCTV footage and other material included in the brief of evidence, as well as the index to the brief. Those documents were admitted without objection. 11. His Honour refused Mr Basic's application for costs. The learned Magistrate concluded that he had not discharged the onus of satisfying the court on the balance of probabilities of the matters in s 214(1)(a) and (c) of the Act. That section is in the following relevant terms: 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) Professional costs are not to be awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following-- (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) … (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) … Mr Basic's submissions 1. Mr Basic relied upon a series of grounds particularised in his amended summons. The learned judge erred in law in finding that he could not make an order for costs without Mr Basic tendering 13 hours of CCTV footage served as part of the police brief. 1. In his reasons his Honour implies that, as the CCTV evidence had not been tendered, no finding of fact could be made concerning any failure of the investigation. 2. In this case the parties had made their submissions in respect of essentially agreed facts which were summarised in the two police fact sheets that were tendered in the application. These included details of the course of the police investigation into the allegations against Mr Basic. Moreover, the fact sheet in respect of the prosecution of Ms Gray detailed the point at which the police became aware of inconsistencies in her evidence and, more importantly, that she had lied to them. These facts were capable of establishing that Ms Gray had done an act tending to pervert the course of justice and that there was a conflict between the CCTV evidence and her allegations. All of the facts were consistent with Mr Basic's innocence. 3. Mr Basic maintained that this constituted both jurisdictional error and error on the face of the record, as his Honour took into account an irrelevant matter: see Western Freight Management Pty Ltd v Roads and Maritime Services, NSW [2013] NSWSC 260 at [70]; O'Brien v Hutchinson [2012] NSWSC 429 at [13]. His Honour erred in law in finding that he could not make an order for costs without Mr Basic adducing evidence and tendering his record of interview under caution, when the facts relied upon were not in dispute. 1. His Honour observed that the record of interview had not been tendered and that no other direct evidence was provided. This follows on from the observation that there was no evidence as to what matters should have been investigated from his record of interview. 2. The police facts tendered by the prosecutor summarised the essential point that Mr Basic denied the allegation, that he was present at the service station, that he never got out of his car or assaulted Ms Gray and that in his opinion her story was false. This was not in dispute between the parties. In those circumstances it was not necessary for either party to tender the formal record of interview or for Mr Basic to give direct evidence. No purpose could have been served by him giving evidence at the hearing, where the facts relating to the investigation were not in dispute. His Honour erred in law in finding that he could not make an order for costs due to Mr Basic having not identified with sufficient precision the factors relied upon to establish that the investigation was unreasonable and or improper having regard to s 214 (1) (a) and (c) of the Criminal Procedure Act. 1. His Honour considered that Mr Basic had not identified with sufficient precision what the prosecution failed to investigate unreasonably or improperly. However, Mr Basic contended that the failing in the police investigation was so serious that it spoke for itself. On the agreed factual basis, it was evident that the police had failed to view the CCTV evidence at an early date, noting that Mr Basic was on remand and had disputed Ms Gray's account of events. It should have been clear to the police that CCTV evidence would have been available at each location. Ms Gray's allegations demanded prompt and appropriate investigation. The eventual review of the CCTV evidence identified a manifest inconsistency in respect of her account. 2. Despite initially maintaining that the sexual assault had occurred, Ms Gray admitted concocting this allegation. Ms Gray is recorded as having stated "I lied because I just wanted him to go to gaol". Ms Gray had done an act intending to pervert the course of justice. In the context of the investigation, where the sequences arose out of the same alleged course of conduct, the prosecution's decision to maintain the prosecution in respect of sequences 3 and 4 was unsustainable as the only evidence to support them was Ms Gray's own evidence. In the absence of corroboration and where the sole police witness had been charged and convicted of making a false statement in respect of the same investigation, it was unreasonable and improper for that prosecution to be maintained. The police became aware of this issue on 28 November 2018 but the prosecution was continued until 6 May 2019. His Honour erred in failing to consider the factual matrix in respect of sequences 1 and 2 in his consideration of the reasonableness and improper nature of the investigation and prosecution when considering s 214 of the Act and the burden of proof. 1. An additional error on the face of the record is disclosed where his Honour is dealing with the failure to tender the CCTV evidence. He appears to confine himself to sequences 3 and 4. The costs application applied to all four sequences as does the submission of failure to investigate properly. This indicated that his Honour may have failed to take account of the significant inconsistencies relating to sequences 1 and 2 when considering the test in s 214(1)(a) and (c) and the issue of unreasonableness and improper nature of the investigation and the continued prosecution of the case. His Honour erred in failing to apply the test for making an order for costs under s 214(1)(a) and (c) of the Criminal Procedure Act. 1. Mr Basic maintained that for all of these reasons his Honour did not apply the correct test. He erred in failing to appreciate that there was an available evidential basis upon which he could proceed. His Honour misapprehended his duty by declining relevantly to consider the agreed factual basis between the parties. 1. The parties had agreed and tendered the police facts in respect of the applicant's investigation and prosecution, and the police facts in respect of the Ms Gray's prosecution and conviction for making a false statement. Nothing was in dispute: see Amante v R [2020] NSWCCA 34 at [63] as an illustration of facts forming the basis of evidence for a finding. 2. At the commencement of the hearing on 4 July 2019, his Honour acknowledged the receipt of that material, which was not challenged by either party. The agreed facts were a sufficient basis for his Honour to undertake his task in applying s 214 of Act. 3. His Honour declined to consider the agreed facts which had been placed before him. His Honour failed to accord Mr Basic procedural fairness in not addressing his concerns or questions to the parties about the underlying factual matrix and the clarification of particulars upon which Mr Basic relied. 1. His Honour identified three reasons for not awarding costs: the failure to tender the CCTV evidence, the failure to tender the record of interview and a lack of precision by Mr Basic in articulating his case. The first two points concerned his Honour's finding as to the onus of proof not being discharged. 2. At no stage during the proceedings did his Honour raise his concerns about these matters with the parties. In failing to do so in respect to the evidential burden or any insufficiencies with the agreed facts, his Honour denied Mr Basic procedural fairness: see DL v The Queen [2018] HCA 32 at [44]; Chong v R [2017] NSWCCA 185 at [5] and [57]; Re Minister for Immigration and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 at [37]. His Honour misapprehended his duty in finding that Mr Basic had not met the evidentiary burden of adducing evidence to support his application when the facts relied upon were not in contest. 1. The proceedings were conducted upon the basis of agreed facts. His Honour could not reasonably have formed the view that there was insufficient evidence to support Mr Basic's application. His Honour's decision to refuse an order for costs was so unreasonable so as to amount to Wednesbury unreasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Lord Green at page 230. 1. Mr Basic submitted that the decision "was so wrong as to be outside his discretion". Ms Gray's lies, told with the stated intention of falsely convicting Mr Basic, were so significant that it would be irrational and illogical to form the view that it could not be unreasonable or improper for the police to have continued the investigation and the prosecution. This was not a case where a different view could have been taken of Ms Gray's credibility based on a mere inconsistency. The initial failure of the police to examine the CCTV combined with the failure to withdraw all of the charges upon finding that Ms Gray had lied is of such central significance that no properly informed court could have formed a view that the continued investigation and prosecution of the applicant was not unreasonable or improper. To find otherwise would be unreasonable and illogical and plainly wrong. In exercising any of his powers under the Act, his Honour is required to act lawfully. One of the requirements for lawfulness is that his Honour should act reasonably. The exercise of his discretion under s 214 was so unreasonable that it amounted to an act in excess of jurisdiction. The decision below 1. His Honour reviewed the material before him at some length. His reasons appear in the following passages from his judgment: "I need not go further for from that point onwards it is clear that everything [Ms Gray] said was a lie thereafter until the matter was reported to police. Applications are decided on the evidence. The applicant bears the onus of proof. The parameters of s 214 must be observed. On the evidence before me in this application, and I rely also on the email to the applicant's solicitor of 29 November 2018, police acted in relation to sequence 1 and 2 once it was apparent that Ms Gray had lied about the Milperra Road incident however she did not retract the circumstances surrounding sequences 3 and 4 and they were corroborated by evidentiary materials available concerning contact between Ms Gray and the applicant at the service station including CCTV footage and the admissions as to being there by the applicant. There is no other evidence adduced on the application. The applicant bears the onus of proof concerning the identified grounds under s 214(1)(a) and/or (c). The Court was not referred to any leading authority although the parties were referred by the Court to De Varda v Constable Stengord (NSW Police) [2011] NSWSC 868. The Local Court bench book has a section outlining matters to consider from para 83-040 and following. De Varda is an authority that if a prosecution fails and it emerges during the proceedings that the prosecution was aware of matters which suggested that the defendant may not be guilty of the offence or for some other reason ought not be prosecuted for the offence and did not reasonably investigate those matters then s 214(1)(c) may be met. The applicant has not identified with precision what the prosecution failed to investigate unreasonably or improperly for the purposes of s 214(1)(a). No evidence has been called by the applicant such as for example the record of interview containing exculpatory material which police unreasonably failed to investigate. It is submitted that the prosecution failed to investigate matters raised in the interview but there is no evidence before this Court as to what those matters were or how any alleged failure occurred. The record of interview was not tendered by the applicant. There was no statement or affidavit of the applicant relied upon and he was not called to give evidence. The same position exists in relation to the asserted grounds under s 214(1)(c). Relevant CCTV footage relied upon in the applicant's submission was not tendered such that no finding of fact can be made concerning any alleged failure of investigation or how that CCTV footage particularly at the service station may have indicated that the applicant might not be guilty of sequences 3 and-or 4. Much of the applicant's written submission referred to media reports, bail proceedings and hardship experienced by the applicant arising from being charged and spending time in custody due to the initial refusal of bail. Those matters do not have relevance in relation to s 213 and applications relying upon s 214(1)(a) and (c). As the applicant bears the onus of proof I am not satisfied that that onus has been discharged on the balance of probabilities on the evidence in the application and accordingly, THE APPLICATION IS REFUSED." Consideration 1. His Honour's approach to the application before him was to have close regard to the particular provisions of the Act upon which Mr Basic relied. Mr Basic bore the onus of satisfying his Honour, in non-technical terms, either that the police investigation of the alleged offences was conducted in an unreasonable manner and/or that the prosecutor unreasonably failed properly to investigate some matter that potentially exculpated him. All of the evidence before his Honour supported the conclusion that the police acted initially upon the complaint made by Ms Gray but commendably made further enquiries within a very short time in an apparent attempt to verify her story. Principal among those enquiries was the visit to the Revesby site and the recognition of the fact that the alleged incident was likely to have been captured on video. That investigative success ultimately led to Ms Gray's confession that she had fabricated the events that constituted sequences 1 and 2. It is somewhat difficult to understand precisely, or even generally, what more in these circumstances the police could have done or, more relevantly, what Mr Basic contends they unreasonably failed to investigate. Indeed, but for the fact that the police made the inspired decision to visit the Revesby site, Ms Gray's lies may never have been exposed or only exposed very much later. 2. Moreover, Mr Basic was required to demonstrate, with respect to sequences 3 and 4, how it was he suggested that the police failed reasonably to investigate these charges. Inherent in Mr Basic's approach before his Honour, as well as in this Court, is the implicit assumption that because Ms Gray was lying about sequences 1 and 2, she must also have been lying about sequences 3 and 4 or that the likelihood of a conviction on those counts was correspondingly reduced. That, however, is not what Mr Basic's application was required to establish. The question of whether or not a witness or complainant will be believed is not finally a matter for investigative police to determine unless it is so obvious that the complaint is so frivolous or fictitious that it should not be pursued. In the present case, on one very strong view of the matter, having regard to all of the facts which Mr Basic was at pains to emphasise, it would clearly not be unreasonable for police to form the view that Ms Gray's motivation for falsely alleging the assaults constituting sequences 1 and 2 was because the allegations that constituted sequences 3 and 4 were true. 3. Be all that as it may, Mr Basic was required to establish certain matters. He is not entitled to some silent inference, because in the events that occurred the police decided not to proceed with any of the charges, that their investigation was therefore unreasonable or that there was some other matter that the police failed to investigate. Mr Basic cannot succeed merely by contending, expressly or otherwise, that the prosecution should have been terminated earlier than it was. It is quite clear to me that there is no other fact or matter to which Mr Basic has drawn attention to support the contention that the police investigation was unreasonable. He did not satisfy his Honour that there was any such matter. The uncontroversial fact that Mr Basic feels aggrieved because he was prosecuted at all is beside the point. Conclusion 1. I am not satisfied that his Honour committed any of the errors for which Mr Basic contends, nor indeed any error at all. It follows that the amended summons filed on 18 August 2020 should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 October 2020