Children's Court New South Wales Medium Neutral Citation: JP v Commonwealth Director of Public Prosecutions [2014] NSWChC 2 Hearing dates: 14 April 2014 Decision date: 05 May 2014 Jurisdiction: Criminal Before: Children's Magistrate Graham Blewitt AM at Port Kembla Children's Court Decision: Application for costs - dismissed Catchwords: CRIMINAL - Young Persons - commencement of proceedings - person under 18 - Attorney General's consent - application for costs Legislation Cited: Criminal Code Act 1995 (Commonwealth), section 474.24C Criminal Procedure Act 1986, sections 213 and 214 Category: Costs Parties: JP - Young Person Director of Public Prosecutions Representation: Mr Russoniello, solicitor, for the applicant Young Person JP Ms Talbot, of counsel, instructed by the Commonwealth DPP File Number(s): 2012/384447 Publication restriction: None. Young Person anonymised Judgment Reasons for Decision BACKGROUND 1This judgment relates to an application for costs made on behalf of the accused Young Person, JP. 2Briefly, the procedural background is that on 11 December 2012 the Young Person was arrested and charged with two counts contrary to s 474.19(1) of the (Commonwealth) Criminal Code Act 1995, alleging offences between 23 May 2012 and 11 December 2012 at Fairy Meadow (sequence 1), and on 27 August 2012, also at Fairy Meadow (sequence 2), that he used a carriage service to transmit child pornography material. At the date of his arrest, the Young Person was aged 15. 3The Young Person was released on bail and was served with Court Attendance Notices to appear in relation to these two charges at Port Kembla Children's Court on 21 January 2013. The Young Person appeared on that date, represented by Mr Russoniello. The Court made brief orders, requiring the prosecution to serve the brief by 25 February 2013 and the matter was adjourned for a reply to the brief at Port Kembla on 11 March 2013. 4On 30 January 2013 the prosecution filed two additional Court Attendance Notices at the Court, alleging further breaches of s 474.19(1), namely offences allegedly committed at Fairy Meadow on 10 August 2012 (later amended to 8 October 2012) (sequence 3) and between 23 May 2011 and 1 September 2012 (sequence 4) at Fairy Meadow. 5The proceedings were subsequently listed for mention and/or reply to the brief on 11 March, 6 May, 17 June, 1 July, and 22 July 2013 when the Commonwealth Director of Public Prosecutions (hereafter referred as the DPP), sought a 3 month adjournment, to 21 October 2013, to obtain evidence from the United States of America, in relation to Facebook material. On 21 October 2013 the evidence had been received from the USA and the matter was adjourned to 11 November 2013, to enable discussions to take place between the prosecution and the defence, and for the DPP to review the charges. 6On 11 November 2013 the proceedings were adjourned to 18 November 2013 for the Court to make enquiries in relation to setting the matter down for hearing as a special fixture. On the last mentioned date, the matter was set down for hearing at Port Kembla Children's Court, as a special fixture, on 17, 18 and 19 March 2014. On 29 November 2013 the hearing dates were changed to 18, 19 and 20 March 2014, when it became known that one of the parties was not available on 17 March 2014. On 17 February 2014, the matter was listed for mention and the hearing dates of 18, 19 and 20 March 2014 were confirmed. 7On 10 March 2014 two additional Court Attendance Notices were issued and filed with the Court, alleging breaches of s 474.17(1) of the Criminal Code Act 1995, namely offences of using a carriage service to menace, harass or offend on 10 August 2012 (sequence 5) and on 27 August 2012 (sequence 6). 8On the same date, 10 March 2014, the DPP forwarded an email to Mr Russoniello advising him about the two new charges, which were replacing sequences 2 and 3, and that sequences 1 and 4 would be withdrawn. REFUSAL OF ADJOURNMENT APPLICATION 9On 17 March 2014 the matter was listed for mention, at the request of the DPP, when the DPP made application to vacate the hearing dates. The defence opposed this application. After submissions from the parties, the Court refused the application to vacate the hearing dates, having regard to the age of the proceedings, the lateness of the application, with the hearing due to commence as a special fixture on the following day, and that the DPP had indicated as early as 21 October 2013 that the charges were being reviewed. The Court indicated that if at the end of the hearing of the available prosecution evidence, the DPP needed to call an expert witness, the proceedings could be adjourned part heard for that purpose. 10On 17 March 2014 the DPP withdrew sequences 1 to 4, and these charges were dismissed. When the Court refused to vacate the hearing dates, the DPP also withdrew the two fresh charges, sequences 5 and 6. The DPP placed on record that these charges were withdrawn with prejudice, pursuant to s 208 of the Criminal Procedure Act 1986. The Court also dismissed these two charges. 11Mr Russoniello indicated that he would be making an application for costs and the proceedings were adjourned for this purpose to 14 April 2014. COSTS APPLICATION 12On the last mentioned date, Mr Russoniello made an application for costs, pursuant to s 213 of the Criminal Procedure Act 1986. Proceedings "invalid" 13The main thrust of his submission, it appears to me, was that the proceedings commenced by the DPP were invalid. He submitted that s 213(3)(b) of the Criminal Procedure Act 1986 provides that the Court may order the prosecutor in summary proceedings to pay professional costs if the matter is dismissed because the proceedings are for any reason invalid. 14Mr Russoniello submitted that the proceedings were invalid because the accused Young Person was under the age of 18 at the time of the alleged offences, and the DPP failed to obtain the consent of the Attorney General prior to the commencement of the proceedings. Mr Russoniello relied on the provisions of s 474.24C of the Criminal Code Act 1995. 15There is no dispute that the DPP did not seek the consent of the Attorney General in this matter until 7 February 2014. 16It is convenient to set out the provisions of s 213 of the Criminal Procedure Act 1986 and s 474.24C of the Criminal Code Act 1995: 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) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. (4) (Repealed) (5) The order must specify the amount of professional costs payable. 474.24C Consent to commencement of proceedings where defendant under 18 (1) Proceedings for an offence against this Subdivision must not be commenced without the consent of the Attorney General if the defendant was under18 at the time he or she allegedly engaged in the conduct constituting the offence. (2) However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given. 17Mr Russoniello submitted that it is well accepted that criminal proceedings commence when a Court Attendance Notice is filed in the Court. In this case, Court Attendance Notices were issues in December 2012 and on 30 January 2013. 18 Mr Russoniello submitted, as I understand his submission, that in relation to paragraph (2) of s 474.24C of the Criminal Code Act 1995, that provision does not apply to persons under the age of 18 years, rather it applies to persons above the age of 18. 19Mr Russoniello referred to the Senate Report on the Bill which introduced s 474.24C, emphasising that the legislation had a case such as this in mind when the consent of the Attorney General was required before proceedings were commenced. 20The relevant part of the Senate Report is in the following terms: 3.55. In a similar vein, the committee notes that police and prosecutorial discretion is an important element of ensuring that the new and existing child sex offences will not operate to unduly capture young people who may be involved or participate in the practice of 'sexting'. While the committee acknowledges that the practice may be undesirable, it agrees with arguments that young people engaged in such behaviour should not be exposed to the grave consequences and stigma that attach to allegations of, and convictions for, child sexual offences. 3.56 In light of the evidence provided in relation to sexting, the committee is inclined to favour calls for the discretion of the Attorney General to be extended in relation to prosecutions of people under 18 years of age for child sex offences.....The committee is of the view that the extension of this safeguard may ensure that behaviour which is not exploitative of, or harmful to, children is not captured by the child sex offence regime (particularly where that behaviour involves children themselves). 21Mr Russoniello submitted that if the all of the information had been analysed and made available to the Attorney General, it would have been apparent that the evidence did not support the charges that there had been a transmission of pornography; rather it would have been a case of "sexting" as contemplated in the Senate Report. 22 For this reason, in the absence of the Attorney General's consent, Mr Russoniello submits the proceedings are invalid, for the purposes of s 213(3)(b) of the Criminal Procedure Act 1986. Alternative basis for costs application - withdrawal of the matter 23If the Court does not accept the submission that the proceedings were invalid, Mr Russoniello, further submits that the withdrawal of the charges by the DPP, triggers the ability of the Court to award professional costs pursuant to s 213(3)(b). 24In conclusion, Mr Russoniello submitted that if the Court is satisfied that a sufficient basis has been made out under s 213 of the Criminal Procedure Act 1986 for an order for costs, the Court could also be satisfied in relation to each of the matters listed in s 214(1) of the Act. Mr Russoniello did not, however, elaborate or make any further or specific submissions in relation to the provisions of s 214(1). 25Section 214(1) is in the following terms: 214 Limit on award of professional costs to accused person against prosecutor acting in public capacity (1) 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. (2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity. (3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003. DPP SUBMISSIONS 26In response to the application for costs by Mr Russoniello, Ms Talbot filed written submissions on behalf of the DPP. Oral submissions were also made in response to Mr Russoniello's oral submissions. 27Ms Talbot submitted that an applicant for costs under s 213 must meet a high threshold to establish any matter listed in s 214(1) of the Criminal Procedure Act 1986. 28In her oral submissions Ms Talbot submitted that she disagreed with the submission of Mr Russoniello in relation to the consent provisions set out in s 474.24C of the Criminal Code Act 1995. Ms Talbot submitted that ss (2) allows for the arrest and charging of a person under the age of 18 without the consent of the Attorney General, despite the provisions of ss (1). 29Ms Talbot submitted that having regard to the alleged actions of the accused Young Person, which are reflected in the original statement of facts tendered to the Court during the course of this application (see below), those actions could not be described as "sexting", as referred to in the Senate Report. Rather the actions of the Young Person amounted to blackmail, with him using a false name/false accounts to acquire child pornography, using threats of publication of child pornographic material. 30Ms Talbot rejects any suggestion that the proceedings were commenced without any evidence. The prosecution had undertaken a full investigation, that had included the taking of statements from the victims, obtaining evidence from the USA by way of Mutual Assistance Requests, obtaining telephone records, seizing materials under warrant in relation to the use of accounts, etc. 31In relation to the decision to withdraw some of the charges, Ms Talbot submitted that this was done following conferencing with child witnesses, taking into account their wishes and their evidence, and having regard to policy considerations. The charges were not withdrawn because there was no evidence or insufficient evidence. 32Ms Talbot reminded the Court that the onus was on the applicant to establish that the requirements of s 214 had been established. The prosecution submits that there is no evidence of any matters set out in the section. 33Ms Talbot referred to the expert evidence that the prosecution were seeking to obtain, when the application for the adjournment was made on 17 March 2014. In particular the DPP was seeking to call an expert to establish the use of "a carriage service", which is an essential element of the two charges the prosecution were intending to prosecute at the hearing. Ms Talbot submitted that this was a technical issue. Even though the legislation provides for a presumption in favour of the prosecution, the defence nevertheless are able to rebut the presumption, so out of an abundance of caution, the DPP were intending to seek the evidence of an expert to establish the use of "a carriage service". ADJUDICATION 34I will deal first with Mr Russoniello's main submission, that the proceedings were commenced without the consent of the Attorney General and accordingly they were invalid. 35It is necessary to determine what is meant by the term "commencement of proceedings" in the context of the current proceedings and the provisions of s 474.24C of the Criminal Code Act 1995. 36In this regard, Mr Russoniello submitted that it is well understood, and accepted, that proceedings are commenced on the date when a Court Attendance Notice is filed. Mr Russoniello did not refer to any specific legislative provision, or judicial authority, in making this submission. 37There are several provisions in the Criminal Procedure Act 1986 that establish such a proposition, for example, Part 2 of the Act dealing with "Trial procedures in lower courts", Division 1 "Commencement of proceedings". In particular sections 172 and 178 provide as follows: 172 Commencement of proceedings by court attendance notice (1) Proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with this Division. 178 When proceedings commence (1) All proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of a relevant court in accordance with this Division. 38Paragraph (3) of s 178, however, is important in the context of the subject costs application. It provides: (3) Nothing in this section affects any other Act or law under which proceedings are taken to have been commenced on another date. 39In relation to Mr Russoniello's submission that paragraph 2 of s 474.24C does not apply to persons under the age of 18 years, I am not able to accept this submission. That paragraph, or subsection, is expressed as follows: "However, a person may be arrested for, charged with, or remanded in custody or on bail in connection with, such an offence before the necessary consent has been given." These emphasised words, in my view, make if abundantly clear that they relate to persons under the age of 18 years, in respect of whom consent is required, and are not meant to apply to persons over the age of 18 years, and in respect of whom consent is not required before proceedings can be commenced. Section 178(3) of the Criminal Procedure Act 1986 also makes it clear that other Acts or laws may specify a different commencement date, and not when a Court Attendance Notice is issued. 40In the context of the circumstances of the prosecution of the accused Young Person, and having regard to the terms of s 474.24C of the Criminal Code Act 1995, I am satisfied that the proceedings for the offences involving the accused Young Person were to commence on 18 March 2014, that is the first date of the hearing. 41When the charges were withdrawn on 17 March 2014, the proceedings had not commenced within the meaning of s 474.24C of the Criminal Code Act 1995. Accordingly, I am satisfied the proceedings were not invalid when the charges were withdrawn on that date. 42Turning to Mr Russoniello's alternative submission that s 213 of the Criminal Procedure Act 1986 has been triggered by the withdrawal of the charges on 17 March 2014, I am satisfied that this ground has been established. 43Accordingly, it is necessary to have regard to the provision of s 214 of the Act, which provides limitations on the Court's power to award costs. The provisions of the section are set out above. The relevant considerations are repeated here for convenience: 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. 44It has already been mentioned above that Mr Russoniello did not make any specific submissions in relation to s 214(1), merely stating that the Court would be satisfied in respect of all of the listed limitations. In response, in the DPP's written and oral submissions contend, and I accept, that an applicant must meet a high threshold to establish any of the matters listed in s 214(1). 45The allegations made against the accused Young Person are serious. They are contained in the initial police statement of facts, which were provided to the Court for the purpose of this application. The relevant parts of those facts are as follows: "Some time in May 2014, a 14 year old female.....victim 'J' was 'friended' on the social networking site Facebook by a person assuming the online identity of a 21 year old female, hereinafter referred to as witness 'B'. Victim 'J' and witness 'B' do not know one another, other than via Facebook. "On 23 May 2012, victim 'J' received an online message from the Facebook profile of witness 'B'. It is alleged that at this time the Facebook profile of witness 'B' was being utilised by (the accused Young Person). "During the initial online communication the young person, whilst using witness 'B's' profile, informed victim 'J' that witness 'B' was being held against her will by a person named (ZJ) and that if victim 'J' did not send naked photographs of her breasts and vagina to witness 'B's' Facebook profile that witness 'B' would be injured by ZJ. "Due to persistent pressure being placed on victim 'J' by the young person (under the online identity of witness 'B'), victim 'J' took photographs (six in total) of her naked breasts and vagina and sent them via Facebook to the Young person. "Shortly after this, victim 'J' blocked the Facebook profile of witness 'B' so that no further messages could be sent by that profile to her. "On 27 August 2012, a female aged 14, hereinafter referred to as victim 'D' engaged in an online communication with the young person. During these communications the young person was using the assumed online identity of (the male) ZJ. "During this online communication the young person requested victim 'D' to send him naked photographs of her breasts. Victim 'D' refused to do this and as a result, the young person informed victim 'D' that he was in possession of several photographs of victim 'J' and that if victim 'D' did not send the photographs of herself, the young person would post the photographs of victim 'J' on Facebook. "Victim 'D' refused to send any photographs of herself. The young person proceeded to send victim 'D' six photographs of victim 'J''. Each of these photographs depicted the victim's naked breasts and/or vagina. Several of these photographs showed the victim's face. "On 11 December 2012, police attended.....to execute (a search warrant)......" 46The Court has not been presented with any evidence that the "investigation into the alleged offence was conducted in an unreasonable or improper manner". Notwithstanding the age of the Young Person when the offences were committed, the allegations are serious and indicate a reasonable level of planning. It cannot be said, in my view that the alleged conduct amounts to "sexting" within the context of the Senate Report mentioned above. 47The investigation of the allegations, involving international components, were complicated and time consuming. Whilst one may question the delay in relation to the laying of the two new charges on 10 March 2014, when it indicated that the charges were being reviewed in October 2013, this delay does not establish in my view that the investigations were conducted in an unreasonable or improper manner. One may also question the lateness in seeking the consent of the Attorney General, only a little over a month before the hearing was due to commence, but this does not make the investigation unreasonable or improper. 48Neither has the Court been presented with any evidence that the "proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner." 49Nothing has been raised suggesting that the prosecutor failed to investigate, unreasonably or otherwise, any relevant matter which might suggest that the Young Person is not guilty or for any other reason the proceedings should not have been brought. 50Finally, the Court has not been provided with details of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, which might suggest that it is just and reasonable to award professional costs. The only issue, to the Court's mind, that may suggest that it is just and reasonable to award costs, is the delay in bringing the fresh charges and the late application to adjourn the hearing on 18 March this year. 51The Court is not satisfied, however, that it is proper to make an order for costs on this basis having regard to the complexity of the investigation and the age of the alleged victims, which also involved proper policy considerations. 52For this reason I am not satisfied that the applicant has satisfied the Court that costs should be awarded. 53The application is therefore dismissed. 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. Decision last updated: 07 May 2014