COMMISSIONER OF POLICE v HATFIELD [1996] NSWCA 117

COMMISSIONER OF POLICE v HATFIELD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA, CLARKE JA and HANDLEY JA 12 February 1996

[1996] NSWCA 117

Priestley JA. This is a summons which in substance asks the Court to quash an order made by Judge Sinclair pursuant to s 39 of the Criminal Procedure Act 1986.

Because of the recently prescribed state of the law pursuant to Craig v South Australia, the claimant has not submitted that the record which this Court is entitled to look at for the purpose of considering the application extends more widely than the application form which was before his Honour Judge Sinclair and his Honour's order granting the application with costs.

Counsel for the claimant has not submitted that the Court had no power to make a costs order under s 39. The submission was that a costs order should not be made against the Commissioner of Police, the question thus posed being one not of power but of discretionary exercise of power. The record which the Court is entitled to look at consisting only as submitted to us of the documents I have mentioned, there is no way in which this Court can form an opinion whether there was any error of law involved in Judge Sinclair's exercise of his discretion.

The result is that the claimant's application must fail and should be dismissed with costs.

Handley JA. I agree. Clarke JA. I agree.

Orders accordingly.