NSW Police v Pepper [2016] NSWLC 15

Local Court New South Wales

Medium Neutral Citation: NSW Police v Pepper [2016] NSWLC 15 Hearing dates: 8 August 2016 Decision date: 23 August 2016 Jurisdiction: Criminal Before: Heilpern LCM Decision: The papers are marked "no jurisdiction". The prosecution is to pay the defendant's costs in the sum of $990 within 14 days. Catchwords: CRIMINAL PROCEEDINGS – prosecution statute barred - disposition of proceedings – papers to be marked 'no jurisdiction' - power to award costs where proceedings invalid Legislation Cited: Criminal Procedure Act 1986, ss 116, 117, 179, 213, 214 Justices Act 1902 (rep), s 81 Local Court Act 2007, s 69 Cases Cited: DPP v Cakici [2006] NSWSC 454 DPP v Goben [1999] NSWSC 696 DPP (NSW) v McDonald; DPP NSW) v Maitland [2015] NSWLC 7 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 NSW Police v JG (No 2) [2013] NSWLC 32 Category: Costs Parties: NSW Police (prosecution) Kirsty Louise Pepper (defendant) Representation: Solicitors: Ms Millar for the prosecution Mr Riley for the defendant File Number(s): 2016/168344

Judgment

Reasons for decision 1. On 1 June 2016, NSW Police served a Court Attendance Notice (CAN) on the defendant, for the offence of driving under the influence of certain prescription drugs. The incident for which the CAN was issued occurred on 29 November 2015. The CAN was created and filed on 3 June 2016. 2. It is not in dispute that the prosecution was statute barred due to s 179(1) of the Criminal Procedure Act 1986. 3. The CAN required the attendance of the defendant at Lismore Court on 11 July 2016, and she sought legal advice from Mr Riley, who appeared at court to represent his client on the set date. The proceedings were adjourned for representations to 25 July 2016. On 22 July 2016, Mr Riley wrote to the police, noting that the CAN was issued out of time and seeking that the proceedings be withdrawn. On 25 July 2016, Mr Riley again appeared for his client, and the matter was adjourned solely on the issue of costs to 8 August 2016. 4. After hearing submissions I adjourned this matter on the question of costs. 5. There are three issues to be determined. First, what is the appropriate dispensation of the proceedings? Second, does this court have the power to make an order for costs? Third, if the court does have the power, should an order for costs be made?