Milson v R (No 5) [2013] NSWDC 276

District Court New South Wales

Medium Neutral Citation: Milson v R (No 5) [2013] NSWDC 276 Decision date: 28 August 2013 Before: Cogswell SC DCJ Decision: Application for costs in favour of the appellant rejected. Catchwords: CRIMINAL LAW - Costs - application for costs following successful conviction appeal - court attendance notice void and amended outside limitation period - proceedings not without prospect of success or doomed to failure - no conduct by the prosecutor to warrant costs. Legislation Cited: Crimes Act 1900 (NSW), s 193C(1). Crimes (Appeal and Review) Act 2001 (NSW), s 70. Criminal Procedure Act 1986 (NSW), s 21. Cases Cited: Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. Halpin v Department of Gaming and Racing [2007] NSWSC 815. Category: Principal judgment Parties: Jason Milson (Appellant) Regina (Respondent) Representation: Counsel: P M Strickland SC (Appellant) Solicitors: Armstrong Felton (Appellant) Office of the Director of Public Prosecutions (Respondent) File Number(s): DC 2011/121417

Judgment 1On 19 July 2013 I allowed an appeal by Jason Milson against a conviction which had been recorded against him. The conviction was under s 193C(1) of the Crimes Act 1900 (NSW). 2I allowed the appeal for reasons which I delivered this morning. There were two problems with the prosecution, both concerning the Court Attendance Notice. In my opinion the original Court Attendance Notice was void. The second problem was that a purported amendment of the Court Attendance Notice was outside the limitation period. 3Mr Milson, through his solicitor Mr N A Felton, argues that now he has won his appeal, I should award him costs. Mr Felton points to s 70 of the Crimes (Appeal and Review) Act 2001 (NSW). He says that the section provides two bases relevant to this case which would allow me to award costs in favour of his client. Section 70 of the Crimes (Appeal and Review) Act provides that costs are not to be awarded in favour of an appellant whose conviction is set aside "unless the appeal Court is satisfied" of a number of alternative circumstances. 4The circumstances relied upon by Mr Felton were two: the first was that provided for in cl (b) "that the proceedings in the Local Court were initiated without reasonable cause". The second was provided for in cl (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." 5Mr Felton helpfully referred me to a number of authorities, including a judgment by Hall J in Halpin v Department of Gaming and Racing [2007] NSWSC 815. 6The application for costs to be awarded against her client was opposed by Ms C Black who appeared for the respondent, the Director of Public Prosecutions. Hall J's judgment contains, with respect, a very helpful commentary on s 70. His Honour referred to authority at [57] which suggested that a proceeding would be instituted without reasonable cause if it had no real prospects of success, or was doomed to failure. Such a question is required to be determined as a matter of objective fact. 7Another authority referred to by Hall J suggested that one way of testing the question is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, "there was no substantial prospect of success". Hall J went on, himself, to say at [61] that the "outcome of many proceedings turns upon the Court in question establishing the proper construction of statutory provisions and then applying them as so interpreted to the facts of a particular case." Mr Felton argued that my finding or opinion that the Court Attendance Notice was originally invalid meant that the prosecution was doomed to failure. 8Ms Black pointed out that Mr Milson consented to the amendment when it was made in the Local Court. In my judgment I expressed the opinion that - because the items of property in the charge had changed, and allegations were made in respect of fresh items and fresh charges after the limitation period had expired - the limitation period prevented the success of the prosecution. 9To my mind that argument was not doomed to failure. Ms Black had argued in her written submissions that the "amendment was made to the mere particularisation of property." She went on to argue that it is "not uncommon nor unusual for the prosecution to particularise more than one item of property in a charge and there has been no suggestion raised by the Appellant that the relevant CAN is duplicitous or that each item of property should have been subject to a separate CAN." 10It may well be that, on close analysis and after considering argument, such a position was not likely to succeed. But it was not, in my opinion, doomed to failure nor could it be said that there was no substantial prospects of success. 11The original invalidity of the CAN depended upon an argument concerning the extent of the operation of the power of a Court to amend a defective initiating process. The power is provided by s 21 of the Criminal Procedure Act 1986 (NSW). Mahoney JA, as his Honour then was, discussed the issue related to other legislation in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517. I infer from his Honour's reasoning that the position of the authorities did not lead to an unquestionably clear conclusion on that question. To my mind the issue was arguable. 12Mr Felton argued that there were other exceptional circumstances relating to the conduct of the proceedings by the prosecutor which would make it just and reasonable for his client to receive his costs. He pointed to exhibit C1, which comprised email correspondence between Senior Counsel whom he had briefed for his client, Phillip Strickland SC, and Ms Black. The correspondence was exchanged on the evening before the proceedings commenced. Mr Strickland set out some of the authorities. 13To my mind, the continued conduct of the proceedings after that exchange was not conduct such as to deprive the prosecutor of his costs. To my mind there was no conduct by the prosecutor which would make it just and reasonable to award costs in favour of Mr Milson. 14For those reasons I reject the application by Mr Milson for his costs.