R v Mikhaylova [2024] NSWDC 90

District Court New South Wales

Medium Neutral Citation: R v Mikhaylova [2024] NSWDC 90 Hearing dates: 19 March 2024 Date of orders: 22 March 2024 Decision date: 22 March 2024 Jurisdiction: Criminal Before: D Barrow SC DCJ Decision: Appeal be dismissed for want of jurisdiction Catchwords: COSTS APPLICATION – Criminal Procedure Act 1986 (NSW) – applicant's application for costs refused in the Local Court JURISDICTION - jurisdiction of District Court to consider appeal where substantive charges dismissed in the Local Court Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), s 213 Crimes (Appeal and Review) Act 2001 (NSW), Pt 3 Div 1, ss 11, 12, 23, 28, 70 Criminal Procedure Act 1986 (NSW), ss 211, 212, 213, 214 District Court Act 1973 (NSW), s 166 Justices Act 1902 (NSW), ss 120, 122 (repealed) Cases Cited: Director of Public Prosecutions v Yalda [1998] NSWCA 277 Latoudis v Casey (1990) 170 CLR 534 Logue v DPP (No 1) [2023] NSWDC 395 Logue v DPP (No 2) [2023] NSWDC 494 Category: Consequential orders Parties: Rex (Crown Respondent) Natalia Mikhaylova (Appellant) Representation: Solicitors: Appellant (self-represented) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00147491 Publication restriction: NONE

JUDGMENT 1. Ms Mikhaylova ('the appellant') successfully defended two charges of common assault heard in the NSW Local Court in 2022 and 2023. Both offences were dismissed on 3 November 2023 on the basis that in neither case had a prima facie case been established. 2. At the conclusion of the Local Court hearing, the applicant made an application for costs, relying upon sections 213 and 214 (1)(a) and (c) of the Criminal Procedure Act 1986. 3. The application was refused by the Magistrate. 4. On 10 November 2023 the appellant lodged a Notice of Appeal to the District Court "to cost compensation orders only". 5. In her Notice of Appeal, the appellant wrote relevantly: "section 214(1) is applicable. Court has jurisdiction to order costs compensation for the costs incurred in defending against unfounded charges." 6. The relevant provisions of the Criminal Procedure Act 1986 are: 211 Definition In this Part— professional costs means costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a court. 212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act. (2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967. Note— The Costs in Criminal Cases Act 1967 contains procedures by which an accused person may obtain payment of costs from Government funds after acquittal or discharge or the quashing of a conviction. 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable. (3) N/A (4) Repealed (5) The order must specify the amount of professional costs payable. Limit on award of professional costs to accused person against prosecutor acting in public capacity 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) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner, (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) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs. 1. The appellant was unrepresented in the Local Court hearing and in these proceedings. At an early stage of the Local Court proceedings she was legally represented, however that was not the case during the substantive hearing. 2. The proposed appeal was listed for mention on 23 January 2024 and adjourned for hearing on 19 March 2024. 3. The Crown has filed submissions that in the absence of any available appeal relevant to the two charges dismissed by the Local Court, the District Court has no jurisdiction to entertain an appeal against the Magistrate's refusal to grant the appellant's application for costs. 4. The appellant has also filed detailed submissions, to be found firstly in an affidavit she has affirmed on 2 January 2024 at pages 5-6, together with parts of a further affidavit affirmed by the appellant dated 22 February 2024 at pages 2-5. It is apparent from this affidavit that these submissions were drafted as a response to the Crown submissions, wherein it was said that the Court did not have jurisdiction to hear the appeal.