West v R [2023] NSWDC 366

District Court New South Wales

Medium Neutral Citation: West v R [2023] NSWDC 366 Hearing dates: 31 August 2023 Date of orders: 8 September 2023 Decision date: 08 September 2023 Jurisdiction: Criminal Before: Priestley SC DCJ Decision: See [21] Catchwords: COSTS — Party/Party — Criminal cases — Costs on appeal Legislation Cited: Crimes (Appeal and Review) Act 2001 Crimes (Personal and Domestic Violence) Act 2007 Cases Cited: NA Texts Cited: NA Category: Costs Parties: Police (Respondent) Madeline West (Applicant) Representation: Fernon for West Breward for the Office of the Director of Public Prosecutions File Number(s): 2022/00144230 Publication restriction: NA

Application for costs by appellant

Judgment 1. By a judgment given on 22 June 2023 the appellant's appeal of the making of a final apprehended domestic violence order was upheld and the order set aside. The appellant seeks an order for costs of the appeal and also an order for the costs of the Local Court proceedings. 2. The basis for seeking the order is set out in the written submissions dated 24 August 2023. The main basis for the application is said to be inadequate evidence. In largely a repetition of that submission reliance is placed on correspondence by the appellant's legal representatives to the police which argued that the police should withdraw the application. A third broad submission is to assert that the police prosecution was wholly inadequate and unreasonably undertaken. 3. In the Crown's submissions dated 29 August 2023 it is argued that the police conduct was appropriate and in support thereof tendered on this application a statement of Senior Constable Abbott dated 16 June 2022. 4. Both parties recognise that the relevant criteria for the awarding of costs of the appeal is set out in section 70 of the Crimes (Appeal and Review) Act (CARA). That section provides as follows: 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. (2) This section does not apply to the awarding of costs against a respondent acting in a private capacity. (3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979 ) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003 . 1. Further in relation to the application that extends to the costs of the Local Court proceedings section 99A of the Crimes (Personal and Domestic Violence) Act (CPDVA) is relevant. The appellant is correct to argue that by a combination of section 28 of CARA and section 99 of the CPDVA the District Court can make an order for costs of the Local Court proceedings but in doing so regard should be had to section 99A. That section is in the following terms: 99A LIMITATIONS ON PROFESSIONAL COSTS BEING AWARDED (1) A court cannot, in apprehended violence order proceedings, award professional costs against an applicant who is a protected person in respect of the order unless satisfied that the application was frivolous or vexatious. (2) A court cannot, in apprehended domestic violence order proceedings, award professional costs against an applicant who is a police officer unless satisfied that-- (a) the applicant made the application knowing it contained matter that was false or misleading in a material particular, or (b) the applicant has deviated from the reasonable case management of the proceedings so significantly as to be inexcusable. (3) The mere fact that a protected person does any one or more of the following in relation to apprehended domestic violence order proceedings does not give rise to a ground to award costs against an applicant who is a police officer and who made the application in good faith-- (a) indicating that he or she will give unfavourable evidence, (b) indicating that he or she does not want an apprehended domestic violence order or that he or she has no fears, (c) giving unfavourable evidence or failing to attend to give evidence. (4) This section has effect despite section 99 or any other provision of this or any other Act or law. (5) In this section-- "apprehended domestic violence order proceedings" means proceedings under this Act in relation to an apprehended domestic violence order or an application for an apprehended domestic violence order. "professional costs" has the same meaning as in section 99. 1. The appellant places much reliance on the fact that there was no evidence of the relationship between the appellant and the person in need of protection between the date of the incident giving rise to the proceedings on 4 May 2022 and the hearing which occurred on 21 March 2023 with the decision and order being made on 28 March 2023. With respect this argument has little merit. It was a large part of the argument for the appellant on appeal that there was not before the court at the time of the hearing such evidence. The point of the argument was that in the absence of such evidence it could not be said that the person in need of protection "in fact fears" that the defendant will engage in conduct which intimidates the person seeking the order. The reason this argument has little merit is because the same argument was unsuccessful in the appeal for reasons set out in the appeal judgment. The appeal judgment also found that such fears were reasonably based, namely that the person in need of protection was fearful of being harassed by the appellant in the way that had occurred on 4 May 2022 because that is what had occurred on that day. 2. Similarly, the argument that the evidence is inadequate largely fails in view of the fact that it was adequate enough to establish a key aspect of section 16. That there is room for debate emerges due to the appeal finding as to the tailpiece to section 16 not having been made out. 3. This point is picked up in the appellant's submissions by paragraph 16 arguing that the overall context of what had occurred was not explored by the prosecution. Had that occurred it is said that the pre-existing amicable relationship between the appellant and the person in need of protection would have been disclosed as well as the difficulties arising from the Family Law dispute between the appellant and her former partner, and the father of the children referred to in the facts. This is a fair point in that the evidence in chief of the person in need of protection was scant and did not make reference to the amicable dealings between the person in need of protection and the appellant in the previous 24 hours, and there was discussion of this at [55] of the judgment. This material was however before the Court, by way of the evidence of the appellant. The scant nature of the evidence in chief of the person in need of protection in the facts of this case is not sufficient to satisfy s70. Assume the police statement set out the matters that are argued should have been set out; there remains the evidence of the harassment complained of providing a reasonable basis for the application. As noted below, cases under the CPDVA commonly involve parties who have had earlier amicable relations. 4. The appellant also relies on the CCTV footage. That does not assist in the cost's argument. Even on the more favourable view of the CCTV footage established on the appeal as compared to the Local Court hearing the fact is that the appellant was on the property uninvited and contrary to the Family Law orders. That is not to forget that those orders if properly complied with would have seen children delivered to the mother elsewhere other than from within the house. 5. The appellant has included with her submissions six pieces of correspondence between the solicitors and the police which seek the withdrawal of the application. The first of that correspondence being a letter of 31 August 2022 argues that the court will not be satisfied that the person in need of protection has reasonable grounds to fear and in fact fears the appellant. That argument failed. The letter contained no argument based on the tailpiece to section 16. The next letter of substance was dated 6 September 2022 and challenged the facts and made detailed reference to the CCTV footage. It concludes by saying there is no reasonable prospect of obtaining the orders sought. Limited to the matters addressed by the letter that view was found to be wrong at first instance and on appeal for there is no reference to the tailpiece to section 16. 6. The next letter is from a barrister dated 20 October 2022. That focused on the Family Court orders aspect of the matter and at [29] asserted that the order is not necessary. Though not expressly in terms of the tailpiece that is a submission to much of the same effect. That said the submission again largely repeats the previous assertion as to the inadequacy of the evidence to make out the necessary "fear" on the part of the person in need of protection; see at [44]. To that extent the submission again has been found to be wrong. The final correspondence was dated 20 February 2023 and set out facts which were not before the court. Those asserted facts are said to show interactions between the appellant and the person in need of protection showing an absence of fear. As noted in the appeal judgment the magistrate, acceding to an objection on behalf of the appellant, did not allow any further evidence of the person in need of protection. Nor when he was cross-examined were these matters put to him. 7. A final letter dated 20 February 203 maintains a serious allegation of the application being made knowing that it is misleading in material particular as to the question of fear. That allegation has not been made out. 8. The Crown submissions make reference to the conduct of the police which included taking a DVEC from the person in need of protection, gaining copies of text messages relevant to the application, contacting a security company to obtain CCTV footage from the property in question and taking a further statement of the person in the protection November 2022 albeit that did not survive objection. 9. The Crown argues the CCTV footage does not conclusively show the order was not warranted, a submission I accept given that a basis for the person in need of protection does "in fact fear" harassment has been found. 10. The Crown also makes the point that whilst there may have been amicable relations in the 24-hours prior to the incident, or for that matter for a lengthy period stretching back in time, that does not in itself mean that there would not be a basis for making an order of this type. The very title of the CPDVA demonstrates this to be so; the Act addresses the need to protect people who are or have been in personal and domestic relationships. 11. In terms of section 70 I am not satisfied that the investigation was unreasonable or improper. The only real basis for saying it was, is the failure to unearth and put before the court evidence better setting out the context of the relationship between the person in need of protection and the appellant. In all the circumstances I do not consider that amounts to being unreasonable or improper. The short fact is that the prosecutor had evidence of a person entering into a property uninvited and removing a child that at that time was under the care of the person in need of protection albeit at a time when the children's father on the evidence before the court should have provided the child to the appellant. 12. Nor can it be said the proceedings were initiated without reasonable cause or in bad faith; as the Crown points out the action was taken quite properly based on a complaint made by the person in need of protection with CCTV footage that was corroborative in respect of the point just made, again albeit that it was found the interpretation of "barging in" was not supported by that footage. Nor for the same reasoning could it be said that the prosecutor has unreasonably failed to investigate a relevant matter the prosecutor ought to have been reasonably aware of. That is not to say some further investigation in terms of further evidence as to the amicable history of the parties and the lead up to the events in question would not have been out of place in the police case. Its absence however does not evidence a degree of unreasonableness that in all the facts of this case would satisfy s70 for the making of a costs order. This is because, as already noted, if it is assumed there was that evidence in chief (and noting that such evidence was in fact before the magistrate, as already noted) there remains a basis for the bringing of the application. No exceptional circumstances justifying the award of costs have been identified (s70(1)(d)). 13. It is perhaps also instructive to note that the point on which the appeal succeeded was not in fact a point taken by the appellant on the appeal. The issues identified by the appellant are set out at paragraph 6 of the judgment and are taken from the written submissions of the appellant and do not include express reference to the tailpiece. That said paragraph 37 of the appellants submissions in the appeal implicitly challenged the finding of an order being warranted which could be construed as a reference to the tailpiece, though that submission as set out in the appeal judgment was based on the evidence argument and a series of factual errors asserted to have have been made by the magistrate. 14. The foregoing is enough to determine the application. It does nevertheless perhaps enforce that conclusion if the matter is viewed in the sense that success or failure by reason of the tailpiece does not necessarily equate with reasonable and proper conduct or unreasonable and improper conduct for the purposes of section 70. 15. In terms of the costs sought in respect of the Local Court hearing the provisions of section 99A are at least the equivalent of the section 70 provisions if not actually raising the bar further. 16. It follows that the application for costs is dismissed.