District Court New South Wales Medium Neutral Citation: Pierre Sukkar v Regina (No 2) [2016] NSWDC 154 Hearing dates: 25 July 2016 Date of orders: 01 August 2016 Decision date: 01 August 2016 Jurisdiction: Criminal Before: Judge AC Scotting Decision: 1. I order that the prosecution pay the applicant's costs of the appeal and the Local Court proceedings. 2. I have not heard any submissions as to the quantum of the costs sought, or the date by which I should order payment of the costs in accordance with section 72 of the Act. 3. I will hear the parties on those issues. Catchwords: CRIMINAL LAW – assault – assault police occasioning actual bodily harm PROCEDURAL – successful conviction appeal – investigation conducted in unreasonable or improper manner – test – balance of probabilities COSTS – appellant costs – discretion to award - quantum Legislation Cited: Crimes (Appeal and Review) Act 2001 ss 70(1)(a), 70(1)(b), 70(1)(c), 70(1)(d) Security Industry Act 1997 ss 4, 35, 36 Cases Cited: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA RB v DPP [2015] NSWSC 248 Category: Costs Parties: Pierre Sukkar (Applicant) Regina (Respondent) Representation: Counsel: Mr D Dalton SC with Mr D Carroll (Applicant) Solicitors: Mallinson and Rake Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent) File Number(s): 2013/00264171 Judgment 1. Pierre Peter Sukkar (the applicant) seeks an order for costs following his conviction appeal being allowed on 21 August 2015. 2. Section 70(1)(a) Crimes (Appeal and Review) Act 2001 (the Act) contains a power to award costs following a successful conviction appeal if the Court is satisfied that the investigation was conducted in an unreasonable or improper manner. 3. The applicant contends that the conditions provided for in section 70(1)(a) are satisfied and that I should exercise my discretion to award costs in his favour. By agreement between the parties, if the current application is unsuccessful the applicant intends to make further application pursuant to the provisions of section 70(1)(b)-(d) of the Act, to be argued later. 4. The applicant relies on the material tendered in the appeal, my judgment and an affidavit of Hayley Rake (the applicant's solicitor) sworn 22 July 2016. The relevant law 1. Section 70(1)(a) of the Act must focus on the investigation. In relation to the failure to call a witness or take a statement from a witness the applicant for costs does not need to establish what that witness would have said. If there are 5 eye-witnesses to an incident and the police interview and call only one and the prosecution fails then the sub-section may be satisfied: Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCA 13 at [20]-[21]. 2. The inquiry involved in section 70(1)(a) is wider than section 70(1)(c) of the Act. The extent of the investigation or the lack of investigation may be the basis for the finding that the investigation was either unreasonable or improper: RB v DPP [2015] NSWSC 248. Factual background 1. On 30 August 2013 the applicant and the co-accused Mr Nassif were arrested and charged. 2. On 23 September 2013 the matter was mentioned at the Downing Centre Local Court. Pleas of not guilty were entered and the Court made orders for the service of a brief of evidence. 3. On 6 November 2013 the matter was mentioned again before the Local Court. Further charges of assault police occasioning actual bodily harm were laid in Court. A brief containing one statement, that of Constable Benson, was served. The matter was adjourned to 27 November 2013 for reply to the brief. 4. On 27 November 2013 the matter was listed for hearing on 18 March 2014, with a one day estimate. 5. On 2 December 2013 Constable Benson took a statement from Dr Trantalis, his treating orthopaedic surgeon. The statement was taken to support the allegation that Constable Benson had suffered a serious shoulder injury, capable of amounting to grievous bodily harm. 6. On 12 December 2013 a further charge of assault occasioning grievous bodily harm was laid against the applicant. 7. On 22 January 2014 Constable Benson passed an occupational skills assessment and medical conducted by NSW Police. 8. On 28 January 2014 Constable Benson served a further statement by him dated 28 January 2014 alleging that he was unfit for full police duties and the statement of Dr Trantalis. The statement of Constable Benson did not refer to the fact that he passed the assessment and medical a few days before and that he had been declared fit for full duties. 9. On 12 February 2014 the matter was listed before the Local Court to vacate the hearing date. The applicant opposed that course. The applicant made representations to the Director of Public Prosecutions (DPP) to withdraw the indictable charge. 10. On 20 February 2014 Constable Benson's injury management file was closed on the basis that he had maintained his pre-injury duties for 4 weeks. 11. On 27 February 2014 the DPP's application to vacate the hearing date was refused. 12. On 13 March 2014 the DPP advised that he intended to prosecute the indictable charge. The hearing date was vacated in relation to the applicant. 13. On 18 March 2014 the co-accused's hearing matter commenced before his Honour Magistrate Bradd. 14. The applicant issued a number of subpoenas to the Commissioner of Police and Dr Trantalis relating to the injury to Constable Benson. There were 3 episodes of non-production before the Court. 15. On 11 June 2014 the co-accused was found not guilty by his Honour Magistrate Bradd. 16. On 31 October 2014 the matter was listed for an application to cross-examine Constable Benson and Dr Trantalis at committal on the issue of grievous bodily harm. The orders were granted and the matter was listed for committal hearing on 10 December 2014. 17. On 5 November 2014 the applicant sent representations to the DPP seeking that he withdraw the indictable charge on the basis of the acquittal of the co-accused and the state of the evidence relating to grievous bodily harm. 18. On 10 December 2014 the prosecution sought an adjournment of the committal hearing on the basis of the unavailability of Constable Benson and Dr Trantalis. The Court was informed that Constable Benson was on 'stress leave' and it was unknown when he would be fit to attend court. Dr Trantalis was said to be unavailable for other professional reasons. The indictable charge was dismissed and the summary charges were set down for hearing on 2 April 2015. 19. On 16 March 2015 a further brief of evidence was served including 2 statements from security guards employed at the hotel dated 27 March 2014 and 16 May 2014 that had not been previously served. 20. On 2 April 2015 the applicant was convicted of fail to quit licensed premises, resist arrest and assault police. The applicant was acquitted of the assault occasioning actual bodily harm and the back-up charge of common assault relating to the injury to Constable Benson. 21. On 21 August 2015 I allowed the applicant's conviction appeal on the basis of a combination of the following matters: 1. the CCTV footage did not correspond with the evidence of the police officers; 2. Constable Benson did not take steps to obtain independent evidence from security guards or patrons, as the incident, or other police officers as the injuries he allegedly sustained; 3. the objective evidence he claimed to have, namely photographic evidence of injury, was not produced; 4. the email correspondence between the police officers and their contact about their evidence led me to the conclusion that their evidence was contaminated. I was persuaded by the applicant's submission that the reason for the contact between the police officers relating to their evidence was to explain the differences between the narrative created on the night of the offence (contained in the COPS entry and the Facts) and the CCTV footage. Consideration 1. Taking into account all of the evidence, I am satisfied on the balance of probabilities that the investigation was both unreasonable and improper for the following reasons. 2. First, Constable Benson unreasonably failed to interview independent witnesses to the incident. These witnesses were the security guards present at the location where the incident in the hotel occurred and the other patrons of the hotel. The other patrons of the hotel were likely to be independent and to be of most relevance to the investigation. The security guards were also important, especially when the police became aware of the content of the CCTV footage that did not depict the applicant spitting at Constable Benson as alleged. A record of the names and security licences of the security guards working at the hotel was required by law, and they were thereby available to be traced by Constable Benson: see sections 4, 35 and 36 Security Industry Act 1997. Two such statements were obtained early in the course of the investigation but not served until 2 weeks prior to the hearing. In my view this supports the conclusion that the security guards were available to be interviewed and that a failure to do so was unreasonable. Further, in this respect the failure to serve the statements in a timely fashion was improper as it denied the opportunity for the applicant to investigate their evidence. 3. Second, the investigation relating to the medical evidence provided in support of the alleged injury sustained by Constable Benson was unreasonable and or improper. It should be initially noted that Constable Benson made no contemporaneous complaint of a serious shoulder injury. The process of taking of Dr Trantalis' statement was highly irregular. It involved the gathering of evidence about the alleged victim by the alleged victim. That statement was then served at a time when there had been a material change in circumstances that were known to Constable Benson, i.e. that he had passed his medical and occupational skills assessment and had been declared fit for full duties. The gathering of the evidence in this way gave rise to a significant conflict of interest that was improper and compromised the integrity of the evidence. The police did not then produce the medical file of Constable Benson in a timely way. The matter ultimately resolved by Constable Benson refusing to come to court to be cross-examined at committal. The investigation of the injuries sustained by Constable Benson was incomplete, untimely and resulted in the provision of misleading evidence to the applicant. On this aspect I am satisfied that the investigation was both unreasonable and improper. 4. Third, I am satisfied that the content of the statements of Constable Benson and Constable Niall for the reasons I gave on 21 August 2015 was contaminated by inappropriate contact email contact between them as to the content of their evidence. 5. I order that the prosecution pay the applicant's costs of the appeal and the Local Court proceedings. 6. I have not heard any submissions as to the quantum of the costs sought, or the date by which I should order payment of the costs in accordance with section 72 of the Act. 7. I will hear the parties on those issues. ********** 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: 01 August 2016