R v AP [2020] NSWDC 676

District Court New South Wales

Medium Neutral Citation: R v AP [2020] NSWDC 676 Hearing dates: 23 September 2020 Decision date: 22 October 2020 Jurisdiction: Criminal Before: Yehia SC DCJ Decision: I make an order that the Applicant be awarded the legal costs of his appeal, with the costs to be agreed between the parties. Catchwords: CRIMINAL PROCEDURE — Costs — Crimes (Appeal and Review) Act 2001 (NSW) — limit on costs awarded against public prosecutor following successful appeal against conviction — whether s 70(1)(a) requires deliberate or intentional impropriety in the conduct of an investigation — whether obtaining of evidence of an alleged offence by police not acting in lawful exercise of duty, or in consequence of an unlawful exercise of police powers, can constitute improper investigation for the purposes of s 70(1)(a) Legislation Cited: Crimes (Appeal and Review) Act (NSW), ss 28(3), 70(1)(a) Criminal Procedure Act 1986 (NSW), s 214(1) Law (Enforcement Powers and Responsibilities) Act 2002 (NSW), s 206 Cases Cited: Ian Campbell & 4 Ors v Director of Public Prosecutions (NSW) [2009] NSWSC 973 R v DB; R v AP [2020] NSWDC 472 The Queen v Byrnes and Hopwood (1995) 183 CLR 501 Category: Costs Parties: AP Director of Public Prosecutions Representation: Legal Aid NSW Office of the Director of Public Prosecutions File Number(s): 2019/00112829

Judgment 1. The Applicant seeks an order that he be awarded the legal costs of his appeal on the grounds specified in s 70(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW). 2. On 5 August 2020, I heard the Applicant's appeal against findings of guilt by the Children's Court in respect of offences of assaulting a police officer in the execution of their duty and resisting a police officer in the execution of their duty: see R v DB; R v AP [2020] NSWDC 472. 3. On 24 August 2020, I delivered judgment in favour of the Applicant, upholding the appeal in respect of each offence, and setting aside the orders of the Children's Court Magistrate. 4. In upholding the appeal, I made the following findings: 1. That at the time of the alleged offences, the Applicant was not lawfully detained pursuant to s 206 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ('LEPRA') as had been contended by the prosecution: R v DB; R v AP [2020] NSWDC 472 at [108]. The prosecution had therefore failed to prove an element of the offences, that is, that the police officers were acting in the lawful execution of their duty at the relevant time. 2. That the conduct constituting the alleged offences stemmed from the Applicant's unlawful detention by police, and that the evidence of his conduct was therefore obtained in consequence of an impropriety by police: at [116], referring to Director of Public Prosecutions v Carr [2002] NSWSC 194; 127 A Crim R 151; Director of Public Prosecutions v AM [2006] NSWSC 348; 161 A Crim R 219. 1. I made a further determination that, had I not been of the view that the police officers were not acting in the lawful execution of their duty during the period of unlawful detention, I would have excluded the evidence pursuant to s 138 of the Evidence Act 1995 (NSW) because it was obtained in consequence of an impropriety or contravention of law: at [141].