NASSER v MISZALSKI AND 1 OR [2001] NSWSC 848

New South Wales Supreme Court

CITATION : NASSER v MISZALSKI AND 1 OR [2001] NSWSC 848 FILE NUMBER(S) : SC 13107 of 2000 HEARING DATE(S) : 4 June 2001 JUDGMENT DATE : 28 September 2001

Plaintiff: Tamara Nasser PARTIES : First Defendant: Richard Peter Miszalski Second Defendant: John Michael Ennever JUDGMENT OF : Hulme J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT RP Miszalski JUDICIAL OFFICER :

COUNSEL : Plaintiff: N Adams First and Second Defendants: P Lakatos Plaintiff: Vandenberg Reid SOLICITORS : First Defendant: I V Knight Second Defendant: SE O'Connor DECISION : Appeal dismissed; The Plaintiff must pay the Defendants' costs

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

NO: 13107 of 2000 Friday, 28 September 2001

HULME J Tamara Louise NASSER v Richard Peter MISZALSKI and John Michael Ennever JUDGMENT

1 HIS HONOUR: These proceedings are an appeal from a decision of the First Respondent, a Magistrate, refusing to award costs in favour of the Applicant after the Magistrate held that there was no prima facie case against the Applicant on a charge brought by the Second Respondent of behaving in an offensive manner in a public place contrary to Section 4(1) of the Summary Offences Act, 1988. The relevant statutory provision that governs the question of costs in the circumstances with which I am concerned is Section 81 of the Justices Act. So far as presently relevant that Section provides:- (1a) When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable. (4) Professional costs are not to be awarded in favour of a Defendant unless the Justice of Justices is or are satisfied as to any 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 prosecution in an improper manner. (c) That the prosecution 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 Defendant 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 Prosecution, it is just and reasonable to award professional costs. 2 An appreciation of the issues which arise requires an understanding of the factual background. The events which led to the proceedings are described in a statement of Senior Constable Ennever. At about 3.00 am on a Sunday morning in the course of a regular patrol, he observed something over 20 people standing around the front of the store and bowser area of a service station, most appearing to be affected by alcohol. The statement goes on:- 6. Whilst seated in the fully marked police vehicle I observed the defendant, who I now know as Tamara Louise Nasser, standing near the bowsers on the northern side of the service station, less than 10 feet from the police vehicle. 7. I observed the defendant finish eating a meat pie and then grab a length of about 2 metres of paper towel from the dispenser mounted on the support pillar. The defendant threw the paper aside and then pulled out another length of paper towel from the same dispenser, this time pulling out even more paper than the first time and I observed her to throw it onto the driveway. 8. The defendant was looking directly at me and from the Police vehicle I said, "Pick up the paper young lady, and put it in the garbage bin, and don't pull any more paper out of the dispenser, or you'll be arrested. The defendant said "You can't fucking tell me what to do." The defendant yelled this out in a loud voice and her reply could be heard by most of the people standing nearby. 9. I then observed the defendant pull another long length of paper out of the dispenser and then look directly at me and yell out 'I'm wiping my face.' I alighted from the vehicle and approached the defendant and I said 'I told you not to do that again and you are now under arrest for offensive behaviour. Do you understand that?' She said 'Yes. So fucking what?' " 3 In cross-examination, Constable Ennever said that the first piece of paper landed on a large lip of a garbage bin, while the second was thrown on the ground. The first had been used to wipe the Plaintiff's face. No attempt was made to use the second in that way. Constable Ennever also said that during the whole time that the Plaintiff's actions went on, she was looking at him and effectively challenged him to walk away or do something. 4 After the events referred to in paragraph 2, Constable Ennever then cautioned the Plaintiff and took her to Queanbeyan Police Station. While there, and earlier, he had observed that she appeared to be moderately to well affected by alcohol. She told him that during the evening she had consumed at least two cocktails and four vodka spirit drinks. 5 He issued her with a field court attendance notice in which the offence is described as "behave in offensive manner" and the particulars of the offence described as "given direction to stop actions on three occasions and refuse to do so." 6 Sometime prior to 9 August 2000, a "facts sheet" substantially in accordance with the above account of events seems to have been given to the Plaintiff or her legal advisers. On 9 August the solicitor for the Plaintiff wrote to the Queanbeyan Police asserting that it was his and counsel's view that Senior Constable Ennever's statement described no offence known to law and that it was the Plaintiff's contention "that she was arrested without lawful cause when she apparently failed the "attitude" test in ignoring the directions of Senior Constable Ennever … that she not remove further paper towelling from a paper towel dispenser within the forecourt of a service station. It was asserted that the Plaintiff denied swearing and that her denial would be supported by other witnesses. The letter went on:- "This letter is to invite you to indicate within a period of seven days that no evidence will be offered when this matter comes before the Court on 31st August and that the prosecution will support an application that the charge be dismissed and will agree to pay the Defendant's costs incurred to this date. If this offer is not accepted, then this letter will be tendered on an application for costs on an indemnity basis and, in the alternative, costs on a party/party basis". 7 The matter was not reached on 31 August and between then and 27 October when it was heard, the Plaintiff's solicitors wrote another letter to similar effect though also offering a compromise as to the amount of costs. That letter went on to say:- "With the greatest of respect, someone should be robust enough to tell Senior Constable Ennever that what he alleges against Ms Nasser simply does not amount to an offence known to law. Quite apart from any other defence which might be available to her, Ms Nasser clearly has a complete answer to the allegations to be found in Section 12 of the Summary Offences Act 1988. If Ms Nasser is forced to defend this matter further, then costs will be sought on an indemnity basis." 8 The Prosecution case at the hearing consisted of the statement of Constable Ennever which I have quoted above. He was cross examined. He did not retreat from the account of events contained in his statement though adding that while the Plaintiff had wiped her face with the first piece of paper, she had not done so with the second piece before throwing it to the ground and he assumed she had finished that function. He said that the first piece of paper had landed on the lip of a garbage bin apparently nearby. He also identified the offensive conduct as all of the Plaintiff's actions and "(placing) me in a position with 20 or so other people standing around with (the Plaintiff) challenging me basically to do something". Asked what legal right he was exercising when he told the Plaintiff not to take any more paper out of the dispenser, Constable Ennever said:- "My right as an officer that is required to maintain the good order of that service station and to protect the other patrons in the area that are using the services." (sic) 9 At the conclusion of the constable's evidence a submission was made that there was no prima facie case, a submission which was upheld. 10 In the account of events contained in his Reasons for so deciding, his Worship makes no mention of, and seems to have forgotten the second piece of paper and happenings to it to which Constable Ennever referred. In his Reasons he moves directly from the first to the last. What seems to be the gravamen of his decision is contained in the last paragraph of those Reasons. That and an addendum are in terms:- "Now on an analysis of the facts as I see them, the situation is that this young woman, probably affected by alcohol, took too much paper out of the dispenser. From the perspective of Sergeant Ennever, the behaviour was not proper at that time and from a - perhaps from the perspective of orderly behaviour of the crowd, he's in effect given her a direction to cease and desist and she hasn't obeyed that direction. As I see it, from what I understand of offensive behaviour under this particular piece of legislation, I have to accept Mr Pappas' submission and I hold that there is no prima facie case. I will say this, in addition, it seems to me that the case itself, the incident itself, and this is something I put to Sergeant Ennever, is that it seems to me that the conduct of Ms Nasser would have amounted to an offence at law under the Protection of the Environment Operations Act 1997 , and that offence is littering." 11 Then counsel for the Plaintiff applied for costs. He said that the application was made under s81(4)(b) and (d). Asked to state what matters in paragraph (b) were relied on, counsel said "that the proceedings were initiated without reasonable cause". He identified the "exceptional circumstances" in subsection (d) as "the continuation of proceedings in the face of the representations that were made and having regard to the nature of the evidence available to the prosecution". It was also submitted that, because of the terms of s12 of the Summary Offences Act, the prosecution case could not succeed unless it could show that the Plaintiff's conduct in relation to the paper towels was other than lawful. Reliance was also placed on the fact that the Plaintiff was arrested rather than simply being dealt with by summons or a field court attendance notice. 12 In rejecting the application for costs, his Worship said:- "The exercise of a discretion to award costs has to be done judicially. It's a discretion and as I understand it, it's an unfettered discretion. I don't have to give reasons, other than to say that I have considered the matter. There is a whole line of authority on this, and this particular section was inserted into the Justices Act following the High Court decision of Latoudes v Casey when the New South Wales government started to have budgetary problems because costs were being awarded. So this particular section, section 81, was amended. As I see what Ennever has done here, as far as sub-section (4)(b) is concerned, I can't see, on what is put before me as far as the evidence, that there was no reasonable cause for him to do this. It certainly doesn't come within the scope of bad faith or conducted in an improper manner, I don't see it that way. I gave reasons which I thought were fairly detailed reasons for a case of this nature, and I had to give fairly detailed reasons because of how the case has unfolded. Mr Pappas' instructing solicitors wrote to the police asking them in effect to withdraw the proceedings and relied in essence that there was no offence known to law. I'll just get to the letter where it says there, "Taken at its highest, describes no offence known to law." Well that's a view, it's not a view that I necessarily hold. And then there's the question of the attitude test. Well the reasons I gave were somewhat considerably different to that. There has to be exceptional circumstances for costs to be awarded under paragraph (d). Certainly I held that there's no prima facie case. Having seen it all, I don't intend to award costs. Thank you." 13 In the Plaintiff's amended summons, orders were sought, pursuant to s65 or s69 of the Supreme Court Act, that "the first Respondent determine the applicant's entitlement to costs in accordance with law". The grounds of appeal were stated to be:- "B. The Learned Magistrate, in dismissing the information found that the information disclosed no offence. Notwithstanding that finding, he failed to properly exercise his discretion in accordance with Sub-section 81(4) to order the professional costs be ordered in favour of the Defendant. C. The Learned Magistrate erred in finding that the investigation into the alleged offence was not conducted in an unreasonable or improper manner. D. The Learned Magistrate erred in finding that the proceedings were not initiated without reasonable cause or in bad faith, or were conducted by the prosecution in an improper manner. E. The Learned Magistrate failed to exercise his discretion to find that it was just and reasonable to award professional costs. F. The Learned Magistrate erred in failing to take into account a relevant consideration, namely that the solicitors for the Applicant had written to the prosecution advising that there was no proper basis for proceeding with the information." 14 Ground "A" was but a recitation of s81(1A) and (4). 15 The Plaintiff's submissions in this Court included the following:- (i) the magistrate was in error in concluding that the proceedings were not shown to have been initiated without reasonable cause or in bad faith and such findings were against the evidence and the weight of evidence. (ii) the magistrate misconceived the nature and extent of his jurisdiction - a conclusion evidenced by the remark that his discretion was "unfettered and that it was unnecessary for him to give reasons" and his reference to the reasons why s81 was amended. (iii) the magistrate adopted a mistaken construction of s81, failed to apply himself to the questions which the law prescribed and his reasons do not suggest he weighed the evidence to arrive at conclusions of fact or disclose that he correctly applied s81(4) to the decided facts. (iv) the magistrate constructively failed to exercise his jurisdiction in that there was a fundamental flaw in the prosecution case which the magistrate ignored, viz. that the Plaintiff was engaged in lawful conduct when Constable Ennever spoke to her and the "other reasons" to which his Wordship referred are not clearly ascertainable from what he said. (v) the magistrate erred in law in determining the application of s81(4)(b) (vi) the magistrate erred in finding that Constable Ennever had reasonable cause to do what he did in that Constable Ennever had not lawful authority to given the direction to the Plaintiff to pick up the paper and the fact that a police officer is challenged does not justify a lawful arrest. (vii) Given, inter alia, the availability of the Field Attendance Notice, the Plaintiff's arrest was unlawful or improper and not in the lawful execution of Constable Ennever's duty. (viii) the magistrate failed to have regard to a relevant consideration, viz. the correspondence from the Plaintiff's solicitors