Land and Environment Court of New South Wales CITATION : Holroyd City Council v El-Khouri (No 2) [2008] NSWLEC 91 PROSECUTOR Holroyd City Council PARTIES : DEFENDANT Marlo El-Khouri FILE NUMBER(S) : 50037 of 2007; 50042 of 2007; 50043 of 2007; 50044 of 2007; 50045 of 2007; 50046 of 2007 CORAM: Jagot J KEY ISSUES: Costs :- whether prosecutor's claimed costs reasonable - costs fixed by Court LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Holroyd City Council v El-Khouri [2008] NSWLEC 83 CASES CITED: Latoudis v Casey (1990) 170 CLR 534 Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71 DATES OF HEARING: Prosecutor's written submissions received on 22 February 2008; Defendant's written submissions received on 26 February 2008 DATE OF JUDGMENT: 27 February 2008 PROSECUTOR Mr J Johnson SOLICITORS McKees Solicitors LEGAL REPRESENTATIVES: DEFENDANT Mr Avni Djemal SOLICITORS Maclarens Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 27 February 2008 50037 of 2007 50042 - 50046 of 2007 HOLROYD CITY COUNCIL Applicant MARLO EL-KHOURI Respondent JUDGMENT Jagot J: 1 On 18 February 2008 I imposed sentence on the defendant in respect of the six offences with which she had been charged (Holroyd City Council v El-Khouri [2008] NSWLEC 83). I found each offence proved. Pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999, and without proceeding to conviction, I ordered that each charge be dismissed. The parties agreed that I should deal with the issue of costs in chambers following the receipt of short written submissions. 2 Div 4 of Pt 5 of the Criminal Procedure Act 1986 regulates costs. Section 257B of the Criminal Procedure Act provides that a court may order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies if the court convicts the accused person of an offence or makes an order under s 10 of the Crimes (Sentencing Procedure) Act. 3 The prosecutor submitted that an order for costs should be made in its favour fixed in the sum of $56,955.85. The prosecutor said that its actions were reasonable in all of the circumstances. Further, the prosecutor had actually incurred costs of about $75,480.33, but did not seek to recover the entirety of those costs. Substantial costs might be incurred in circumstances even where a plea of guilty is entered (see, for example, Maitland City Council v Link Building Services Pty Limited [2008] NSWLEC 71, where the Court ordered the defendant to pay the prosecutor's costs in the agreed sum of $80,000). Finally, the prosecutor provided the defendant with an opportunity before commencing the proceedings to raise any relevant matters about the foreshadowed prosecution. The defendant's response did not include the information contained in her affidavit (which led to the application of s 10 of the Crimes (Sentencing Procedure) Act). 4 Section 257B provides the Court with a statutory discretion relating to costs. Costs orders are compensatory, not punitive (Latoudis v Casey (1990) 170 CLR 534 at 557). 5 I am satisfied that some order for costs should be made in favour of the prosecutor in circumstances where the offences were proved but the charges dismissed pursuant to s 10 of the Crimes (Sentencing Procedure) Act. The defendant's affidavit contained information of significance to the defendant's culpability (or relative lack of culpability) which had not been provided to the prosecutor before the hearing (despite an invitation before the commencement of proceedings). I am also satisfied, however, that it would be inequitable to burden the defendant with a costs liability in the sum of some $57,000. My reasons are as follows: (1) The six charges arose out of the same set of facts. (2) The defendant was ready to enter a guilty plea to the charge of carrying out development otherwise than in accordance with the development consent (proceedings 50037 of 2007) on the second mention date (31 August 2007). However, the prosecutor commenced five other proceedings on 30 August 2007, with each new summons accompanied by further substantial evidence. (3) The costs claimed with respect to each set of proceedings do not reasonably reflect either the significant areas of overlap between the proceedings or the relatively straightforward nature of the charges and evidence relevant to proof. 6 I consider that it is just and reasonable that the costs order relate to a proportion only of the costs claimed by the prosecutor. The just and reasonable proportion inevitably involves matters of impression incapable of reduction to a precise set of reasons. Nevertheless, having regard to the matters to which I have referred, I am satisfied that it would be inequitable for the prosecutor to recover more than $35,000 in total (which represents about 60% of the prosecutor's costs as claimed). Accordingly, in proceedings 50037 of 2007 and 50042 - 50046 of 2007 I make the following orders: (1) The defendant is ordered to pay to the Registrar of the Court, for payment to the prosecutor, costs fixed in the amount of $35,000. (2) The exhibits are returned. **************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.