Rowlands v R (No 2) [2022] NSWDC 273

District Court New South Wales

Medium Neutral Citation: Rowlands v R (No 2) [2022] NSWDC 273 Hearing dates: 4 March 2022 Date of orders: 18 March 2022 Decision date: 18 March 2022 Jurisdiction: Criminal Before: P Taylor SC DCJ Decision: The appellant's application for an order for costs is dismissed. Catchwords: CRIMINAL PROCEDURE - costs – successful appeal – costs against public prosecutor – threshold requirements – need for defective investigation or prosecution Legislation Cited: Costs in Criminal Cases Act 1967, s 2, s 3, s 3A, s 4 Crimes (Appeal and Review) Act 2001, s 28, s 70 Cases Cited: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13 JD v DPP & Ors [2000] NSWSC 1092 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Regina v JS (No 2) [2007] NSWCCA 309 Rowlands v R [2021] NSWDC 723 State of New South Wales v Cuthbertson [2018] NSWCA 320 Texts Cited: New South Wales, Law Reform Commission, Criminal appeals, (March 2014) Category: Principal judgment Parties: Stephen James Rowlands (Applicant) Regina (Respondent) Representation: Solicitors: Bannisters Lawyers (Applicant) Office of the Director of Public Prosecutions NSW (Respondent) File Number(s): 2020/10453 Publication restriction: None

Judgment 1. Stephen Rowlands appealed to this Court against his convictions in the Local Court for offensive language and resisting arrest. His appeal was upheld and the convictions were set aside. Mr Rowlands seeks an order that his costs in that appeal be paid by the Director of Public Prosecutions, the respondent in the appeal. The circumstances of the matter are set out in the earlier judgment. [1] 2. At common law, and traditionally, costs were not awarded in criminal proceedings. The power to award costs in a criminal case requires statutory authority. [2] This Court is empowered by statute to make an order "as it thinks just" as to the payment of costs, including that the Director pay Mr Rowlands' costs. [3] But in order to obtain a costs order in a public prosecution, as this was, the applicant must satisfy the requirements in s 70 of the Crimes (Appeal and Review) Act 2001. 3. Section 70 provides: "70 Limit on costs awarded against public prosecutor (1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied— (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or (b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or (c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter— (i) that the prosecutor was or ought reasonably to have been aware of, and (ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant." 1. Section 70 can be seen to impose a threshold that must be satisfied before costs can be awarded. Unlike in civil cases, or in private prosecutions, success on the appeal or setting aside the conviction is not enough. The applicant must establish some defect in the investigation or the prosecution in order to meet the threshold for an award of costs. 2. Further, conduct in the alleged offence alone is not relevant to proving this threshold. Although the earlier judgment identifies some features of the interaction between Mr Rowlands and the police officers which raise questions about the appropriateness of the police conduct, the remedy of a costs order is not concerned with the conduct alleged to have constituted the offences by Mr Rowlands. Rather, to repeat, the costs entitlement arises, if at all, because of features of the proceedings that satisfy s 70, either in the investigation or the prosecution of those proceedings. 3. Section 70 arose from the New South Wales Law Reform Commission report. The report concluded: "It would be an exceptional case where a defendant was convicted at trial but acquitted on appeal, and it was not reasonable for the prosecution to have instituted the proceedings in the first place." [4] 1. The Court of Appeal has stated: "The circumstances in which costs may be awarded in criminal proceedings is significantly circumscribed. In summary, those circumstances are directed to impropriety or unreasonableness in investigating the charges, or in initiating or conducting the prosecution in the Local Court, including on the basis of bad faith. Those constraints evince a clear legislative purpose that costs may only be awarded in the circumstances for which the legislature has provided." [5] 1. The satisfaction of any of the paragraphs of s 70(1) is sufficient to enliven the Court's power to award costs. Mr Rowlands relies on several of them. I will deal with each paragraph in turn.