Hatzopoulos v R [2016] NSWDC 249

District Court New South Wales

Medium Neutral Citation: Hatzopoulos v R [2016] NSWDC 249 Hearing dates: 2 September 2016 Date of orders: 12 October 2016 Decision date: 12 October 2016 Jurisdiction: Criminal Before: Wass SC DCJ Decision: (1) That the prosecutor pay the appellant's costs of the application in the local court and the hearing of the appeal, including the hearing of the application for costs under s.70 of the Crimes (Appeal and Review) Act 2001. (2) Make an order for costs in the amount of $21,561. Catchwords: Costs – apprehended domestic violence order - appeal Legislation Cited: Crimes (Appeal and Review) Act 2001 NSW s. 70(1)(c), s.70(1)(d) Category: Principal judgment Parties: Tas Hatzopoulos (Appellant) Director of Public Prosecutions (Crown) Representation: Counsel: Mr Brewer (Appellant) Mr Karpin (Crown)

Solicitors: Mr B Pigott (Appellant) Director of Public Prosecutions (Crown) File Number(s): 2015/168023 Publication restriction: None

Judgment 1. On the basis of the distressed and anxious demeanour of the complainant, the fears she expressed, together with a photograph and "other information" (not disclosed by the Constable Nina Blundell in the statement), the Constable formed the view that she had reasonable grounds to apply for an apprehended violence order against the appellant. The matter was heard and determined on 26 October 2015, by Pierce LCM, who made an apprehended violence order. 2. On 27 April 2016, I allowed the appeal from the decision of the learned magistrate. 3. The appellant has made an application for costs on the following two bases: 1. That the application for the AVO contained a misleading statement which said: "PINOP has previously reported incidents of physical violence and threats in 2011 and 2014. On both occasions charges were laid and avo's applied for however no conviction was ever recorded."; and 2. That the selection of text messages presented to police by the complainant was misleading and the presentation of them to the Court by the prosecutor misled the court. 1. Both the Crown and Mr Brewer, who appears for the appellant, agree that s.70 of the Crimes (Appeal and Review) Act 2001 ("the Act") gives me jurisdiction to award costs against the public prosecutor in limited circumstances. 2. S.70 provides relevantly that I am not to award costs in favour of the appellant unless I am satisfied that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter that the prosecutor ought reasonably have been aware of and that suggested that the appellant might not be guilty or that, for any other reason the proceedings should not have been brought. Or 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: s. 70(1)(c) or (d) of the Act.