Supreme Court New South Wales Medium Neutral Citation: Hallaby v Local Court of New South Wales [2019] NSWSC 840 Hearing dates: 13 June 2019 Decision date: 09 July 2019 Jurisdiction: Common Law Before: Emmett AJA Decision: Proceedings dismissed with costs. Catchwords: ADMINISTRATIVE LAW – judicial review – whether the Magistrate misconstrued ss 214(1)(b) and 214(1)(d) of the Criminal Procedure Act (1986) (NSW) and thereby misconceived the nature of his function – whether the Magistrate erred on the face of the record by assuming the proceedings had been initiated by an unidentified "prosecution" – whether the Magistrate's decision should be quashed under s 69 of the Supreme Court Act 1970 (NSW). COSTS – whether the second defendant should pay the plaintiff's professional costs –- whether exclusion of police evidence under s 138 of the Evidence Act 1995 (NSW) demonstrated proceedings were initiated without reasonable cause under s 214(1) of the Criminal Procedure Act (1986) (NSW). CIVIL PROCEDURE – whether an extension of time should be granted for the commencement of the proceedings. Legislation Cited: Costs in Criminal Cases Act 1967 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: A v State of New South Wales (2007) 230 CLR 500 Canceri v Taylor (1984) 123 ALR 667 Council of Kangan Batman Institute of Technology and Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 Coleman v Power (2004) 220 CLR 1 Craig v South Australia (1995) 184 CLR 163 Dong v Hughes [2005] NSWSC 84 Fosse v Director of Public Prosecutions [1999] NSWSC 367 Hope v Bathurst City Council (1980) 144 CLR 1 Kanan v Australian Postal & Telecommunications Union (1992) 43 IR 257 Latoudis v Casey (1990) 170 CLR 534 Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Texts Cited: New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 May 1991 at 2796 Category: Principal judgment Parties: Steven Hallaby (Plaintiff) Local Court of New South Wales (First Defendant) Senior Constable Paul Harris (Second Defendant) Representation: Counsel: S Boland (Plaintiff) J King (Second Defendant) Solicitors: Younes + Espiner Lawyers (Plaintiff) Crown Solicitor's Office (First Defendant) (Submitting Appearance) Hunt &Hunt Lawyers (Second Defendant) File Number(s): 2018/348868 Decision under appeal Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Date of Decision: 13 April 2018 Before: Magistrate Brender File Number(s): 2016/369209 Judgment Introduction 1. These proceedings are concerned with an application made by the plaintiff, Mr Steven Hallaby, for an order that the second defendant, Senior Constable Paul Harris (Snr Cst Harris), pay Mr Hallaby's professional costs in respect of proceedings in the Local Court of New South Wales (the Local Court) in which Mr Hallaby was charged with assaulting a police officer in the execution of duty. [1] The proceedings in the Local Court were commenced by a Court Attendance Notice (the CAN) issued by Snr Cst Harris charging that Mr Hallaby had assaulted a police officer while in the execution of his duty. The charge was dismissed by the Local Court on 22 December 2017. Following the dismissal of the charge, Mr Hallaby applied for an order under the Criminal Procedure Act (1986) (NSW) (the Procedure Act) that Snr Cst Harris pay his professional costs. On 13 April 2018, a magistrate of the Local Court (the Magistrate) ordered that the application for costs be dismissed. 2. These proceedings were commenced by summons filed on 13 November 2018, incorrectly described as "summons commencing an appeal", seeking judicial review of the order of the magistrate under s 69 of the Supreme Court Act 1970 (NSW) (the Supreme Court Act). In the proceedings, Mr Hallaby seeks an order quashing the judgment of the Local Court dismissing his application for costs and an order compelling the Local Court to determine his application for costs according to law. In the summons, Mr Hallaby also seeks an extension of time for the commencement of the proceedings and the costs of the proceedings. The defendants in the proceedings are the Local Court and Snr Cst Harris. The Local Court has filed a submitting appearance. Snr Cst Harris has defended the proceedings. 3. The time fixed by r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for commencing proceedings under s 69 expired on 13 July 2018 and the summons was therefore filed some four months out of time. The misnomer of the summons is symptomatic of an error apparently made by those advising Mr Hallaby that led to the failure to commence the proceedings in time. There appears to have been a misconception on the part of Mr Hallaby's solicitor as to a right of appeal from the Magistrate's order made on 13 April 2018. On 1 May 2018, Mr Hallaby's solicitor filed an application seeking an extension of time within which to file an appeal from the order. [2] The application was granted and the time for filing an appeal was extended to 13 November 2018. 4. However, the summons that was in fact filed on 13 November 2018 is not a summons commencing an appeal but a summons seeking judicial review under s 69 of the Supreme Court Act. In October or early November 2018, Mr Hallaby was advised that he had no right of appeal and that the extension of time granted to him did not apply to judicial review under s 69. Ultimately, he gave instructions for these proceedings to be commenced. 5. There was no evidence of any prejudice on the part of either defendant by reason of the fact that it was not until 13 November 2018 that an application for extension of time to commence judicial review proceedings was made. The defendants were notified, before the expiration of the time for commencement of the proceedings, that Mr Hallaby wished to challenge the conclusions of the Magistrate, albeit by misconceived proceedings. In the circumstances, I consider that it is appropriate to extend the time for the commencement of the proceedings up to and including 13 November 2018. The Proceedings against Mr Hallaby 1. The circumstances that gave rise to the Local Court proceedings occurred on 25 November 2016 at Mr Hallaby's home in Gregory Hills (the Residence). At about 10pm on that day, Sergeant John Pilarski (Sgt Pilarski), Constable Troy Klinar (Cst Klinar) and Snr Cst Harris, wearing dark uniforms, attended the Residence in a dark, unmarked, SUV police vehicle. Cst Klinar parked the police vehicle opposite the Residence. Using a police issue torch, he illuminated vehicles that were parked in the driveway of the Residence and also illuminated sections of the house of the Residence, including windows and the front door. 2. Within about 30 seconds, Mr Hallaby opened the front door, stood on the patio and said: "What the fuck do you the dogs want?" Cst Klinar replied: "Just making some enquiries, it's the police." Mr Hallaby said: "I know who you dogs are." Mr Hallaby then walked down several steps from his patio and stood on the front driveway of the Residence. Cst Klinar said to him: "What are you up to tonight?" Mr Hallaby replied: "What the fuck are you up to tonight?" Cst Klinar said: "Just doing our job." Mr Hallaby said: "Why do you cunts keep coming around harassing me? You think youse are tough in your black cars, come over here." 1. The three police officers alighted from the police vehicle, crossed the road and approached Mr Hallaby. An exchange along the following lines occurred: Mr Hallaby: "Why do you keep coming around here?" Sgt Pilarski: "You have been served with a FPO. We spoke to you yesterday at your brother's house and you weren't happy then, and wanted to fight police then, why carry on for, there is no need for it?" Mr Hallaby: "No fucking need for it, you think you are all hard, I will fight you all, one-on-one, here, now or in a fucking ring, let's go, fuck you cunts coming around to my house, it's a fucking quiet neighbourhood." Snr Cst Harris: "Just calm down mate." 1. Mr Hallaby clenched his fists, moved his body to the side slightly and adopted a fighting stance. He placed his hands near his chest similar to that of a boxing stance, while rocking his torso back and forth. The following exchange then occurred: Mr Hallaby: "Let's go cunt, let's fucking go." Snr Cst Harris: "Step back and calm down mate." Mr Hallaby: "Fuck calming down, let's go, come on let's go you cunts." 1. At that time a woman approached Mr Hallaby from behind, took hold of his right arm and said: "Let it go, just come inside." Mr Hallaby pulled away and continued to walk towards Cst Klinar whilst adopting his boxing stance. Sgt Pilarski thereupon sprayed Mr Hallaby with a short burst of capsicum spray. Mr Hallaby then retreated a short distance and knelt down on one knee while holding his face. Sgt Pilarski said: "Can you please get me some water and I will wash his eyes, or would you like me to call the ambulance for him?" Mr Hallaby said: "Fuck the ambulance". Sgt Pilarski asked the woman to get a large bottle of water. She ran inside and returned with a large bottle of water which Sgt Pilarski used to commence decontaminating Mr Hallaby, during which he had a short conversation in relation to various matters. 1. Snr Cst Harris then wrote out the CAN requiring Mr Hallaby's attendance at Liverpool Local Court on 1 February 2017 to answer a charge that he had committed the offence of assaulting an officer in the execution of his duty. A typed CAN was subsequently produced and served on Mr Hallaby requiring his attendance on 1 February 2017. The details of the offence as stated in the CAN were as followed: "Assault officer while in the execution of his or her duty at 10:00 pm on 25/11/2016 at Gregory Hills. did assault Tony KLINAR being a Constable in the execution of his duty". 1. On 1 February 2017, a plea of not guilty was entered on behalf of Mr Hallaby at Liverpool Local Court, a direction was given that a brief of evidence be served on 1 March 2017 and the matter was listed for further mention on 15 March 2017. On 15 March 2017, the plea of not guilty was maintained and the matter was fixed for hearing on 6 July 2017. 2. On 6 July 2017, the matter was called on for a defended hearing before the Magistrate. Mr Hallaby was represented by counsel. Sergeant Lozanoska appeared for Snr Cst Harris as the informant. Seven exhibits were tendered in the police case as follows: 1. Statement by Cst Klinar; 2. Photograph of the front of the Residence; 3. Police log; 4. Statement of Sgt Pilarski; 5. Photograph; 6. Statement of Snr Cst Harris; and 7. Copy of Cst Klinar's police notebook. 1. Mr Hallaby' counsel then made an application for all of the police evidence to be excluded under s 138 of Evidence Act 1995 (NSW) (the Evidence Act) on the basis that the conduct of the police was "improper in various respects". The first respect was said to be the shining by the police of a flashlight into a house in circumstances where the police had attended a quiet suburban area late at night, in circumstances where there was a difficulty in understanding precisely what the police were doing there. The second respect was said to be that one of the police officers confronted Mr Hallaby as he stood in his driveway and adopted a boxing stance as he stood in front of Mr Hallaby, flanked by two other police officers who were wearing black, riot squad gear. The third respect was said to be a grossly unreasonable use of force by spraying capsicum spray, a weapon known historically to have caused cardiac arrest from time to time, into somebody's face when he had not touched anyone. Counsel for Mr Hallaby asked that the Magistrate receive all of the police evidence, and cross examination of the police witnesses, on the voir dire. Counsel said that, if the Magistrate declined to reject the evidence under s 138 of the Evidence Act, there would be no further cross-examination. 2. Section 138(1) of the Evidence Act relevantly provides that evidence that was obtained improperly or in consequence of an impropriety is not admissible unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Section 138(3) provides that, without limiting the matters that the Court may take into account under s 138(1), the Court must take into account, relevantly, the following: * the probative value of the evidence; * the importance of the evidence in the proceeding; * the nature of the relevant offence; * the gravity of the impropriety; * whether the impropriety was deliberate or reckless; and * the difficulty, if any, of obtaining the evidence without impropriety. There is no reference in s 138(3) to evidence being "improperly" obtained but only to the "impropriety", indicating that the concept of obtaining evidence "improperly" involves "impropriety". 1. It is significant that s 138(1) prohibits the admission of evidence that was obtained in a particular way. It says nothing about the propriety of the facts to which the evidence relates. The effect of s 138 is that evidence that is obtained improperly, or in consequence of an impropriety, is, prima facie, not to be admitted. Accordingly, the first consideration in relation to the application of s 138 is the characterisation of the obtaining of the relevant evidence, namely, whether it had been obtained improperly or in consequence of an impropriety. Once such a characterisation has been made by the Court, it is necessary for the Court to undertake a balancing exercise, by weighing the desirability of admitting the evidence against the undesirability of admitting the evidence. 2. The seven exhibits were received by the Magistrate on the voir dire and the three police officers were called. They gave additional oral evidence and were cross-examined at length on the voir dire. 3. The hearing was not completed on 6 July 2017 and was adjourned part heard to 6 December 2017. Oral submissions were made on behalf of Mr Hallaby that all of the evidence should be excluded under s 138 of the Evidence Act. The Magistrate directed that the prosecutor file written submissions in response no later than 15 December 2017 and the matter was adjourned part heard to 22 December 2017. Because of the indisposition of the police prosecutor, no submissions were filed at that time but draft submissions were subsequently filed on behalf of the prosecutor. 4. On 22 December 2017, the Magistrate gave oral reasons for concluding that all of the evidence should be rejected under s 138 of the Evidence Act. His Honour said that, that being so and given that there was no other evidence available to be led in the police case, it followed that the charge against Mr Hallaby must be dismissed. Accordingly, his Honour ordered that the proceedings be dismissed. 5. In his reasons, the Magistrate observed that the first way the defence put the case was that the police officers were trespassing and, in so doing, were acting unlawfully. His Honour was not satisfied that the evidence disclosed trespass even though the defence established that it was more likely than not that the assault occurred just off the road. His Honour was not prepared to exclude the evidence on that basis of unlawfulness and said that it was not argued that any other unlawfulness by police occurred. 6. The Magistrate said that the second alternative put by the defence was that the evidence was obtained in consequence of impropriety, being the conduct of the police leading to the alleged assault. His Honour analysed "the factual matrix" that brought Mr Hallaby before the Court and recounted the facts as to the arrival of the police at the Residence late at night. His Honour referred to evidence of Sgt Pilarski that the address of Mr Hallaby was one of relevance to a particular operation and that he had decided to visit it to gain intelligence, which he did not wish to specify. His Honour referred to evidence of Sgt Pilarski that it was relevant to his decision to visit the Residence that Mr Hallaby had a connection, in the very recent past, to an incident in which a police officer was threatened. His Honour also referred to evidence by Snr Cst Harris that the police were seeking intelligence that he did not wish to specify. His Honour said that, ultimately, counsel for Mr Hallaby abandoned any effort to find out what the intelligence related to and found, on balance, that the police were at the Residence on police business, although the exact nature of the business remained unclear. His Honour was not prepared to find that the police were there "on some private frolic or payback". 7. The Magistrate then referred to the fact that the police shone a light at the Residence, including inside the windows of the house, where Mr Hallaby resides with at least a child and a wife. His Honour said that Sgt Pilarski agreed that Cst Klinar was shining a powerful torchlight into the windows and that it was a deliberate effort to light up the house. His Honour said that the only explanation for the police being there was to gather intelligence that they declined to specify or disclose, other than that they had made a note or taken a photograph of the registration plates of the vehicles parked in the driveway of the Residence. His Honour recorded that the police denied any intent to knock on the door and found that they had no warrant. His Honour did not consider that the shining of the light was a civil wrong and did not think that it was a trespass. His Honour also referred to case law to the effect that photography is not a trespass except in unusual cases relating to scandalous photography and that generally physical intrusion is required. [3] His Honour accepted that there is no general right to privacy recognised in Australian law. 8. The Magistrate then referred to the fact that, when Mr Hallaby came out of his home and complained of harassment, the three police officers got out of their car and approached him as a group. His Honour found that there was no remaining police business reason to approach Mr Hallaby except that they had apparently taken umbrage at the language he used. His Honour referred to the statements made by Mr Hallaby and the fact that one of the police then adopted a fighting stance of some sort and the other two were flanking him. His Honour said that the conduct by the policeman was not ideal and it may have been obvious to a bystander that the conduct was apt to, and did, result in violence. His Honour considered that the conduct was provocative but considered that he did not need to decide whether that was deliberate or not. His Honour found that it was plain that the more sensible exercise of police powers, regardless of the importance of the intelligence they may have been interested in, would probably have been to walk away, since they conceded that the only intelligence they were likely to gather at that point, being the registration plates of the vehicles in the driveway, had already been obtained. 9. The Magistrate then considered whether the conduct was "relevant impropriety, being conduct clearly below the minimum standards which society should expect from its police force". His Honour said that there may be an impropriety if there was some harassment or manipulation suggestive of a level of encouragement, persuasion or importunity in relation to the commission of the ultimate offence that followed. His Honour did not consider that the case before him was one where police, believing a person to be committing offences, provided an opportunity for an offence to occur consistent with suspected illegal activity. His Honour concluded there was no suggestion that Mr Hallaby was in the practice of assaulting officers and that the case was a mere opportunity to repeat that [4] . 10. The Magistrate considered that the case before him was one where the police conduct, in a real sense, had induced the commission of the crime by Mr Hallaby in an entirely innocent setting, where Mr Hallaby was at home with his wife and any other family and was induced to come out to confront police, who had shone a light into his house and then approached him outside his house and declined to leave when asked to do so. His Honour observed that the police had been unable or unwilling to identify any legitimate purpose for them to remain, other than to confront Mr Hallaby physically when he swore at them. His Honour observed that, while that may have constituted a crime, Mr Hallaby was not charged with the use of offensive language. That crime, in any event, if it had occurred, was one provoked by the police and could have been dealt with by a field court attendance notice, which his Honour characterised as being at the "lowest level of seriousness". 11. The Magistrate referred to the principle that the Court ought not to make a subjective decision as to whether it approves of the conduct but must apply a principle. His Honour found that the police conduct in approaching Mr Hallaby in the driveway of the Residence, late at night, after shining a torch in his window, was "improper". His Honour found that it caused, in a real and foreseeable sense, the event that followed and in fact provoked it. His Honour said that police "should not be the cause of fights". 12. The Magistrate referred to evidence of Cst Klinar that the job of the police was to de-escalate where possible and ensure unnecessary violence did not occur. His Honour considered that getting out of the police vehicle and seeking to confront Mr Hallaby or engaging him in conversation in "that hostile situation" was "the reverse of that duty". While his Honour found that the shining of the light was not illegal and was in the execution of the officers' duty, getting out of the police vehicle and physically confronting an angry man who had come out of his house, telling police to cease what he considered harassment, when no legitimate intelligence or other police interest could conceivably be achieved by doing so, was "improper and more directly causative of the action said to constitute the offence". His Honour said that that was "an impropriety" because it was seriously likely to escalate the situation and provoke unnecessary violence that in fact took place and because it created the opportunity for an offence to occur. 13. The Magistrate observed that "provoking criminal activity" was a serious matter and, in those circumstances, concluded that the whole of the evidence had been obtained "in consequence of an impropriety" within the meaning of s 138 of the Evidence Act. His Honour could see no valid argument as to how the desirability of admitting the evidence could possibly outweigh the undesirability of admitting evidence obtained as a direct consequence of the impropriety. His Honour considered that the alleged assault was not an objectively serious one causing the police to fear an imminent assault after they approached Mr Hallaby. His Honour considered that, if it happened, it was provoked "by the impropriety itself". His Honour concluded that the weighing up the impropriety, as against the importance of the conviction, was "one way" and there was little or no public interest in securing a conviction in a case such as the one before him. 14. As I have indicated, the evidence rejected by the Magistrate consisted of statements by the three police officers, two photographs, the police log and a copy of Cst Klinar's police notebook. The statements were made by the police officers on 26 November 2016 in two cases and on 29 November 2016 in the other case. They were given voluntarily by the police officers. The contents of the police notebook were created by a police officer in the course of his duty. Even if it was made at a time when the officer was engaged in an impropriety, as the Magistrate found, the contents of the notebook were not obtained in consequence of an impropriety. Rather, in the findings of his Honour, they were evidence of the impropriety. The rationale behind s 138 is the prevention of obtaining evidence improperly or illegally. That is to say, the emphasis is on the obtaining of the evidence, not in prohibiting improper conduct. His Honour made no finding that any of that evidence was obtained improperly or was obtained in consequence of an impropriety. It is by no means certain that the Magistrate was correct in rejecting all of the police evidence under s 138. 15. Immediately after the Magistrate dismissed the charge against Mr Halaby, counsel for Mr Hallaby foreshadowed an application for costs under the Procedure Act. The proceedings were adjourned to 9 March 2018 for hearing of the application for costs. On 5 March 2018, counsel for Mr Hallaby filed and served written submissions in support of the costs application. On 9 March 2018, the Magistrate heard oral submissions from the police prosecutor and from counsel for Mr Hallaby. The proceedings were adjourned to 13 April 2018. On that day, the Magistrate gave oral reasons for rejecting the application for costs. Before addressing the reasons of the Magistrate for dismissing Mr Hallaby's application for costs, it is desirable to say something about the statutory framework within which the costs application was made. Statutory Framework 1. Section 212 of the Procedure Act relevantly provides that a court may award costs in criminal proceedings only in accordance with the Procedure Act. However, the Procedure Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967 (NSW). That Act contains procedures by which an accused person may obtain payment of costs from government funds after acquittal or discharge or the quashing of a conviction. It appears that no application has been made under that Act by Mr Hallaby. 2. Section 213 of the Procedure Act relevantly provides that a court may, at the end of summary proceedings, if the matter is dismissed, order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person. The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable and the order must specify the amount of professional costs payable. 3. However, s 214(1) relevantly provides that 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. 1. There may be a degree of overlap between s 214(1)(b) and s 214(1)(d). Thus, one of the limbs of s 214(1)(b) is that "the proceedings were conducted by the prosecutor in an improper manner". Section 214(1)(d) then refers to "other exceptional circumstances relating to the conduct of the proceedings by the prosecutor". Thus, both paragraphs refer to the conduct of the proceedings by the prosecutor. The reference to "other exceptional circumstances" in s 214(1)(d) indicates that that paragraph is concerned with circumstances other than the conduct of the proceedings by the prosecutor in an improper manner. 2. Section 214 of the Procedure Act is the successor of s 81 of the Justices Act 1902 (NSW) (Justices Act). Section 214 was enacted following the repeal of s 81(4) and s 81(5) of that Act. Section 81(4) and s 81(5) were inserted in 1991 as a consequence of a decision of the High Court [5] in which it was held that, in ordinary circumstances, it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. A defendant could be exposed to a financial burden that may be substantial by reason of the bringing of a criminal charge that, in the event, should not have been brought. The High Court considered that it would be inequitable that the defendant in such a case should be expected to bear the financial burden of exculpating himself or herself. However, the High Court accepted that the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs [6] . 3. In his speech on the second reading of the Bill for the amendment that inserted s 81 into the Justices Act, the relevant Minister said that the provisions would recognise the public duty of police informants and prosecutors and that the effect of the amendment was that, where an informant had acted properly and reasonably in bringing and prosecuting a charge, it would not be appropriate for the community to pay the defendant's costs. The Minister observed that the solution in balancing competing considerations was not to be found in a system of automatic payments but in selective costs awards in circumstances where the Court, having had regard to established criteria that would be applied in all cases, considers it just [7] . 4. Section 14 of the Procedure Act relevantly provides that a prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. Section 173 relevantly provides that, if a police officer is authorised under s 14 to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with Div 1 of Pt 2 of Ch 4 of the Procedure Act. 5. Section 172 of the Procedure Act relevantly provides that proceedings for an offence are to be commenced in a court by the issue and filing of a court attendance notice in accordance with Div 1. A court attendance notice may be issued in respect of a person if the person has committed or is suspected of having committed an offence. It appears to be common ground that the CAN, which was prepared by Snr Cst Harris, was issued and filed in accordance with Div 1 of the Procedure Act. Under s 178, all proceedings are taken to have commenced on the date on which a court attendance notice is filed in the registry of the relevant court in accordance with Div 1. 6. Mr Hallaby attaches some significance to s 183 of the Procedure Act. Section 183(1) relevantly provides that, if an accused person pleads not guilty to an offence, the prosecutor must serve or cause to be served on the accused person a copy of a brief of evidence relating to the offence. The brief of evidence is to consist of documents regarding the evidence that the prosecutor intends to adduce in order to prove the commission of the offence and is to include written statements taken from the persons the prosecutor intends to call to give evidence and copies of any document or other thing identified in such a written statement. The copy of the brief of evidence must be served at least 14 days before the hearing of the evidence for the prosecution. It appears that Snr Cst Harris prepared such a brief, which included the seven exhibits identified above. 7. The significance of s 183 is to be found in s 3(1) of the Procedure Act, under which the term "prosecutor" is defined as including a person who institutes or is responsible for the conduct of a prosecution. Clearly, Snr Cst Harris was the person who instituted the prosecution against Mr Hallaby. In so far as he attended to the provision of the brief of evidence, his role was not limited to the issuing and filing of the CAN. However, it does not follow that he is properly characterised as "a person who was responsible for the conduct of the prosecution" against Mr Hallaby. That is relevant for the application of s 214 of the Procedure Act. The Questions in the Proceedings 1. The summons filed on behalf of Mr Hallaby in these proceedings claimed orders and relied on grounds that were subsequently abandoned. The only relief that is pressed is: * the grant of leave extending time for commencing the proceedings; * an order quashing the orders of the Local Court; * an order compelling the Local Court to determine Mr Hallaby's application for costs according to law; and * costs. 1. In seeking judicial review of the Magistrate's order refusing his application for costs, Mr Hallaby relies on s 214(1)(b) and s 214(1)(d) of the Procedure Act. He asserts that the proceedings in the Local Court were initiated by Snr Cst Harris without reasonable cause and that, because of other exceptional circumstances relating to the conduct of the proceedings by Snr Cst Harris, it is just and reasonable to award professional costs. 2. The grounds in relation to s 214(1)(b) are as follows: * the Magistrate disregarded a precondition concerning s 214(1)(b), or otherwise misconceived the nature of his function, by failing to recognise the requirement to identify who had initiated the proceedings against Mr Hallaby, and when they had been initiated; * the Magistrate erred on the face of the record by assuming, in relation to s 214(1)(d), that the proceedings had been initiated by an unidentified person/authority known as "the prosecution". 1. In relation to s 214(1)(d) of the Procedure Act, Mr Hallaby relied on the following grounds: * the Magistrate reached an illogical conclusion by failing to recognise that the "exceptional conduct by police and the underlying evidence" had infected the "conduct of the proceedings"; * the Magistrate erred in his construction of s 214(1)(d) and thereby misconceived the nature of his function and/or the extent of his powers by holding that exceptional conduct by police in the underlying evidence the subject of the charge could not meet the description of circumstances relating to conduct of the proceedings; and * the Magistrate disregarded a precondition concerning s 214(1)(b) or otherwise misconceived the nature of his function by failing to recognise the requirement to identify "the prosecutor". 1. The summons identified the following findings of fact made by the Magistrate on the voir dire: 1. On the night in question the three police decided to attend the Residence late at night in an unmarked dark SUV, wearing dark uniforms; 2. The purpose of their visit was to "gain intelligence" but did not wish to specify what "intelligence" they sought to gain; 3. On attending the Residence the police officers shone a light on the Residence where Mr Hallaby resides with a child and his wife, including inside the windows of the Residence; 4. When Mr Hallaby came out of the Residence and complained of harassment, the three police officers left the police vehicle and approached him as a group when there was no remaining police business reason to approach him, except that they had apparently taken umbrage at the language he used; 5. at all material times, Mr Hallaby remained within his driveway; 6. Mr Hallaby said: "What the fuck do you dogs want? Why do you cunts keep coming around here harassing me" and then urged them to fight. One of the police officers adopted a fighting stance and the other two officers flanked that officer. That conduct was provocative, was not ideal and was apt to, and did, result in violence; 7. Mr Hallaby and Cst Klinar stood facing each other for 15 to 20 seconds and that that scenario came to an end when Sgt Pilarski sprayed capsicum spray in Mr Hallaby's face. Mr Hallaby did not touch the police. 8. The police found Mr Hallaby in an entirely innocent setting where he was at home with his wife and any other family and was induced to come out to confront police who had shone a light into his house and then approached him outside his house and declined to leave when asked to do so; 9. The police conduct in approaching Mr Hallaby in the driveway of his home late at night after shining a torch in his window was improper and caused, in a real and foreseeable sense, the event that followed and in fact provoked it in circumstances where police should not be the cause of fights; and 10. No legitimate intelligence or other police interest could conceivably be achieved by alighting from their car. The Reasons of the Magistrate 1. The Magistrate's reasons for dismissing the costs application are brief. They were delivered orally but were not fully recorded. A transcript of the recording is in evidence in these proceedings together with corrections that were agreed to by the parties. The transcript was supplemented by notes taken by Mr Hallaby's solicitor, which were admitted without objection. 2. The Magistrate began by recording that Mr Hallaby had been acquitted after he had rejected the prosecution evidence on the basis that it had been obtained improperly. His Honour said that he made no criticism of the police prosecutor's conduct but that, after extensive and very effective cross-examination of all witnesses, he was persuaded that the police had acted improperly in the events leading up to the time when they found themselves in the relevant situation, to the point that "they had effectively provoked the situation" and in the discretionary exercise required by s 138 he rejected the evidence. He said, however, that that decision was not preordained or inevitable. 3. After referring to the provisions of s 214(1) of the Procedure Act, the Magistrate said that, given the evidence of the three police who were present, it seemed to him that the proceedings were initiated properly and there was evidence capable of a conviction. His Honour said that there was no basis for concluding that "the prosecution" should have forecast that all the evidence would be rejected, based on the impropriety argument and the adverse exercise of discretion. His Honour said that it required a deal of hindsight to conclude that there was no reasonable cause to commence the proceedings. 4. The Magistrate said that Mr Hallaby also argued that "the prosecution" would have failed because the police were not in execution of duty. He said that Mr Hallaby cross-examined to a certain point, in an attempt to demonstrate that the police were on some sort of payback or frolic, and the police in question did not wish to disclose details of what they were doing. His Honour referred to argument on that subject and said that eventually Mr Hallaby took the forensic decision to drop the inquiry. His Honour observed that Mr Hallaby could not now submit that he inevitably would have succeeded on that point. His Honour said that the police were at least informally claiming privilege but the matter was never pursued and that the police, at least at face value, appeared to have been on some form of police business. They were in a police car, on a shift, in uniform and they were recording number plates at the location of the person who had been involved in some type of incident or interaction with police in the recent past. The Magistrate could not find that the proceedings were initiated without reasonable cause by reason of inevitability that there would have been a finding that what occurred that night was in no way in execution of duty. 5. The Magistrate then referred to two other arguments advanced on behalf of Mr Hallaby. The first was that the police would have failed to prove the assault was not consented to. The other was that self-defence was raised and not negatived. His Honour observed that those points may have been argued had the matter gone further but they were in his view far from being so strong that the case could be said to have been commenced without reasonable cause. 6. In dealing with s 214(1)(d), the Magistrate observed that Mr Hallaby had submitted at length that the case was exceptional. His Honour said that the question was whether any exceptional aspect was as to the conduct of proceedings. His Honour observed that the mere fact that the proceedings were resolved in Mr Hallaby's favour was not enough and there must be something in relation to the manner in which the proceedings were conducted [8] . His Honour then said that, if the other subparagraphs of s 214(1) were not made out, something of substance would be required for s 214(1)(d) to be made out. His Honour observed that exceptional conduct by police in the underlying evidence the subject of the charge could not meet the description of circumstances relating to conduct of the proceedings [9] . His Honour then said that nothing else about the conduct of the proceedings was put in support of the argument based on s 214(1)(d). Those observations recognise the fundamental difficulty in rejecting the police evidence under s 138 of the Evidence Act, to which I have referred above. 7. Thus, in effect, the Magistrate rejected Mr Hallaby's contentions in support of an order for costs for several reasons. First, his Honour considered that the evidence of the three police officers who were present was evidence capable of giving rise to conviction. Secondly, but for the successful attack in cross-examination, conviction would have been likely, if not inevitable and there was no basis for concluding that "the prosecution" should have forecast that all of the evidence would be rejected, based on s 138(1) coupled with the adverse exercise of discretion not to admit the evidence. Finally, the decision not to admit the evidence was not preordained or inevitable. Some Relevant Legal Principles 1. In a case where an inferior court correctly recognises that jurisdiction exists, the court will nevertheless fall into jurisdictional error if it misapprehends or disregards the nature or limits of its functions in exercising that jurisdiction. An order or decision of an inferior court that is based upon a misconception or disregard of the nature or limits of its functions or powers will be liable to be set aside or quashed upon judicial review under s 69 of the Supreme Court Act [10] . 2. It must be established that it is more probable than not that the prosecutor acted without reasonable cause. That proposition may be established either by showing that the prosecutor did not "honestly believe" the case that was instituted or that the prosecutor had no sufficient basis for such an honest belief. It is not necessary, in order to demonstrate absence of reasonable cause, to establish that the prosecutor had no positive belief that the accused person was, or was probably, guilty. For example, a prosecutor may act on the statements of others. Since the critical question is what the prosecutor made of the material that the prosecutor had available when deciding whether to institute a prosecution, it is necessary to determine the exact content of the assertion that the prosecutor acted without reasonable cause [11] . 3. Where the outcome of proceedings turns upon the acceptance by the Court of a particular construction of statutory provisions, and then applying the provisions, as so interpreted, to the facts of a particular case, despite the fact that the prosecutor instituted the proceedings on the basis of a construction that was rejected by the Court, it will not necessarily follow that the proceedings were instituted without reasonable cause. Failure by an inferior court to take into account a matter that it was, as a matter of law, required to take into account in determining a question within jurisdiction, or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question, will not ordinarily involve jurisdictional error [12] . There will be jurisdictional error only if it can be demonstrated that the inferior court took into account an irrelevant matter or failed to take into account a relevant matter because the court misconstrued a limit on its power. On the other hand, the failure to take into account a relevant matter or the taking into account of an irrelevant matter might constitute an error of law on the face of the record even if it does not constitute jurisdictional error. However, it must be possible to demonstrate the error to be apparent on the face of the record and not by pointing to a wider set of materials. 4. It is a matter of judgment, sometimes of fine judgment, in all the circumstances of a particular case, whether proceedings are brought without reasonable cause [13] . It does not necessarily follow from the fact that a person fails in proceedings that the person instituted the proceedings without reasonable cause. The protection afforded by s 214(1) will not be available if the proceedings had no real prospects of success or were doomed to failure [14] . 5. If upon the facts apparent to the prosecutor at the time of instituting the proceedings, there was no substantial prospect of success, the proceeding will have been instituted without reasonable cause. That is to say, if, on the prosecutor's own version of the facts, it is clear that the proceedings must fail, it may properly be concluded that the proceedings were instituted without reasonable cause. On the other hand, if success depends upon the resolution in the prosecutor's favour of one or more arguable points of law, it is not appropriate to characterise the institution of the proceedings as being without reasonable cause [15] . Mr Hallaby's Submissions as to s 214(1)(b) 1. It is common ground that Snr Cst Harris initiated the proceedings, in that he retrieved the court attendance notice book from the police vehicle, filled out the CAN, handed the CAN to Mr Hallaby and told Mr Hallaby that he was required to attend Court on 1 February 2017. There was no reason to doubt that the CAN was thereafter filed in accordance with the Procedure Act. 2. Mr Hallaby contends that the question of whether the proceedings were initiated without reasonable cause is a matter of objective fact, to be assessed according to what was known to Snr Cst Harris at the time the proceedings were initiated. He asserts that the test as to whether the proceedings had been initiated without reasonable cause depended upon the state of mind of Snr Cst Harris as the person who initiated the proceedings. Mr Hallaby asserts that, having regard to the findings made by the Magistrate, in concluding that the evidence is not admissible by reason of s 138(1) of the Evidence Act, Snr Cst Harris had no sufficient basis for honestly believing that Cst Klinar was in the execution of his duty. He says that Cst Klinar was no longer in the execution of his duty because he was doing something outside the ambit of his duty, in so far as his actions at the relevant time were found by the Magistrate to be "the reverse of that duty" [16] . Mr Hallaby contends that, even if the Magistrate had admitted all of the police evidence, the "execution of duty" element could not have been established. However, the Magistrate clearly considered that, had the police evidence been admitted, conviction would have been likely, if not inevitable. Further, Mr Hallaby's contentions regarding the "execution of duty" element were expressly considered and rejected by his Honour. 3. Therefore, Mr Hallaby contends, it must be concluded that the proceedings were initiated without reasonable cause within the meaning of s 214(1)(b) of the Procedure Act. Mr Hallaby contends that the alleged errors on the part of the Magistrate, described above, constituted either jurisdictional error or error on the face of the record, which led the Magistrate to conclude that Snr Cst Harris had not instituted the proceedings without reasonable cause. 4. Mr Hallaby contends that s 214(1)(b) required the Magistrate to identify who had "initiated" the proceedings against Mr Hallaby and that his Honour erred by misconstruing the provision and thereby misconceived the nature of his function, of identifying the person who had "initiated" the proceedings. Mr Hallaby's essential complaint is that the Magistrate failed to recognise that one of the three police officers who had engaged in the conduct that led to the charges against him was also, by the operation of s 3 of the Procedure Act, the "prosecutor", or at least a "prosecutor", in relation to the proceedings. He refers to the fact that, in his reasons, the Magistrate referred to "the prosecution" rather than to "the prosecutor", who was Snr Cst Harris, he having instituted the prosecution in that he issued the CAN and filed it in accordance with Div 1 of Pt 2 of Ch 4 of the Procedure Act. 5. Mr Hallaby contends that, when the Magistrate referred to the evidence of the three police officers who were present, and concluded that there was no basis for concluding that "the prosecution" should have forecast that all the evidence would be rejected, his Honour made two incorrect assumptions as follows: * none of the three police officers who were present had initiated the proceedings; and * the proceedings were initiated by an independent, but unidentified, "prosecution", which acted upon the evidence provided by the three police officers who were present. Mr Hallaby asserts that no reasons were provided in support of either of those assumptions, both of which, he says, were incorrect. Mr Hallaby says that, contrary to the two assumptions, the proceedings had in fact been initiated by Snr Cst Harris, who was one of the three police officers present at the scene. Accordingly, he contends, his Honour failed to engage with the statutory task called for under s 214(1)(b). 1. It is clear that the Magistrate had before him the CAN, which clearly stated that Snr Cst Harris was the person who had initiated the proceedings. There is no reason to doubt that his Honour knew that Snr Cst Harris had initiated the proceedings and that Snr Cst Harris was one of the three officers who were present at the time of the commission of the alleged offence by Mr Hallaby. The contrast in his Honour's reasons between "the three people who were present" and "the prosecution" does not lead to a contrary conclusion. Further, it is difficult to see what difference it would have made to the outcome if the Magistrate expressly identified Snr Cst Harris as the person who initiated the proceedings. 2. The thrust of the complaint by Mr Hallaby is that the material that was available to Snr Cst Harris included not only the seven exhibits that constituted the police evidence, all of which was ruled inadmissible by the Magistrate, but also the personal knowledge of Snr Cst Harris acquired by reason of his being present on the occasion of the alleged offence. Thus, Mr Hallaby says, even if there may have been reasonable cause for initiating the proceedings on the basis of the seven exhibits, when the additional knowledge of Snr Cst Harris was added to the seven exhibits, it ought to have been clear to Snr Cst Harris that the proceedings were doomed to failure. He contends that the objective facts, as found by the Magistrate in his reasons for rejecting the police evidence under s 138 of the Evidence Act, were known to Snr Cst Harris and, accordingly, he ought to have known that, once those facts were found by the Magistrate, that would lead to rejection of all of the police evidence and consequential dismissal of the charges against Mr Hallaby. 3. The contention appears to entail that, since Snr Cst Harris was present when all of the conduct complained of took place, he either knew, or ought to have known, that that conduct involved obtaining all of the police evidence improperly or in consequence of an impropriety within the meaning of s 138(1), and that all of the evidence would be inadmissible by reason of s 138. That involves accepting, first, that s 138(1) of the Evidence Act applied to the obtaining of the evidence, a matter that is by no means clear, for the reasons indicated above, and, secondly, that any magistrate of the Local Court would exercise the discretion against admitting the evidence on that basis. 4. A further hurdle for Mr Hallaby is that, before the power conferred by s 213 to order that the prosecutor pay professional costs is enlivened, the precondition in the preamble to s 214(1) requires that the court be "satisfied" as to one or more of the matters set out in paras (a), (b), (c) or (d) of s 214(1). The pre-requisite for the Court to be so "satisfied" is a limit on the function or power of the Court such that jurisdictional error will be established if the Court misapprehends that limit [17] . However, the fact that the matters set out in s 214(1) have a jurisdictional quality does not have the consequence that the Supreme Court, in considering judicial review, is to determine whether any of the matters existed. Before there will be jurisdictional error, a misapprehension on the part of the Magistrate as to the limits of his power under s 214(1) must be identified. It is not sufficient that the Supreme Court disagrees with the Magistrate's conclusion as to those limits. 5. Thus, the use of the word "satisfied" makes clear that that is not a question of demonstrating the actual existence or non-existence of a state of affairs, as distinct from whether the Court has reached the relevant degree of satisfaction [18] . Section 214(1)(a) required the Magistrate to make an assessment as to whether the initiation of the proceedings was unreasonable. Whether or not the decision to institute the proceedings was unreasonable or without reasonable cause was very much a matter for the judgment of the Magistrate [19] . 6. If an erroneous construction of any part of s 214(1)(a) was apparent on the face of the record of the Local Court, it may be possible to establish both error of law and jurisdictional error. It is important to bear in mind, however, that much of the language of s 214(1) is not expressed in technical legal phrases. In those circumstances, to demonstrate legal error, it must be demonstrated that, on the facts as found, no other conclusion was reasonably open but that the relevant criterion was established [20] . 7. The Magistrate did not misconceive the nature of his function or failure to engage with the statutory task required of him simply because he did not refer to Snr Cst Harris as "the prosecutor". There is no express requirement in the relevant part of s 214(1)(b) for the Local Court to identify the person who initiated the proceedings and there is no good reason for implying such a requirement. 8. On proper analysis, s 214(1)(b) specifies three distinct matters as follows: * the proceedings were instituted without reasonable cause; * the proceedings were initiated in bad faith; * the proceedings were conducted by the prosecutor in an improper manner. The first matter does not refer to "the prosecutor". However, while the use of the passive voice masks the requirement to consider whether the person who initiated the proceedings did so without reasonable cause, the provision does not necessarily require the identification of the person who initiated the proceedings. Rather, it requires, at most, identification of the material that was available, at the time when the prosecution was instituted, for consideration by a person who might institute a prosecution. 1. It is difficult to conclude that Snr Cst Harris, as prosecutor in instituting the proceedings, knew or ought to have known of facts that would inevitably lead to the rejection of the evidence under s 138 and, therefore, the dismissal of the charges against Mr Hallaby. It could not be said, even with the knowledge of Snr Cst Harris as to the actual events on the night in question, that the Local Court would conclude, first, that all of the evidence had been "obtained" improperly or in consequence of an impropriety and, secondly, that the undesirability of admitting the evidence would outweigh the desirability of admitting it. Mr Hallaby has failed to establish that the Magistrate was bound to find that the proceedings were instituted without reasonable cause. Mr Hallaby's Submissions as to s 214(1)(d) 1. Mr Hallaby contends that the task of the Magistrate, in identifying "other exceptional circumstances", was contingent upon the validity of his Honour's determination in relation to s 214(1)(b). He asserts that, in so far as his Honour failed to identify who had initiated the proceedings, his Honour erred in the determination of a critical ingredient of s 214(1)(b) and was not in a position to identify correctly the "other" circumstances that were relevant for the application of s 214(1)(d). He says that, if his Honour had correctly recognised who had instituted the proceedings, it would have been open to his Honour to find that the requirement for "other" exceptional circumstances was satisfied because: * Snr Cst Harris, being one of the three police who was present, had instituted and carried on proceedings to finality in circumstances where the underlying conduct had been provocative, improper and had caused the incident; * the conduct of the proceedings was based entirely on the presentation of the evidence of the three police who were present, one of whom had instituted the proceedings; and * the prosecution would have resulted in an inevitable conviction had Mr Hallaby not been fortunate enough to expose the "improper" and "provocative" police conduct. 1. Once it is concluded that the proceedings were not initiated without reasonable cause, there are no "other" circumstances remaining to be considered. While the term "prosecutor" is defined in s 3 to include a person who institutes or is responsible for the conduct of a prosecution, it by no means follows that conduct which occurred prior to the institution of the prosecution by the person who institutes, or is responsible for the conduct of, the prosecution, can be characterised as "conduct of the proceedings" by that person. 2. Mr Hallaby contends that the Magistrate fell into error in so far as his Honour held that "exceptional conduct" by the police in the underlying facts as to the commission of the alleged offence could not meet the description of "circumstances relating to the conduct of the proceedings". That is to say, he contends that that conduct in some way constituted "the conduct of the proceedings" by Snr Cst Harris. 3. However, that so called "exceptional conduct" of the police officers, which was found by the Magistrate to have been provocative and improper and to have caused the incident, occurred before the initiation of the proceedings. Proceedings do not exist until they have been commenced. Under s 178, proceedings are taken to have commenced on the day on which a court attendance notice is filed in accordance with Div 1 of Pt 2 of Ch 4 of the Procedure Act. Nevertheless, conduct of the person who instituted the proceedings by filing the relevant court attendance notice cannot properly be characterised as "circumstances relating to the conduct of proceedings". That is the conclusion reached by the Magistrate. His Honour made no error in reaching that conclusion. It is unnecessary to consider whether, if that conclusion had been erroneous, it was either jurisdictional error or error on the face of the record. Conclusion 1. Mr Hallaby has not established any error on the part of the Magistrate. Specifically, he has failed to establish either jurisdictional error or error on the face of record. It follows that the proceedings must be dismissed with costs. ********** Endnotes 1. Pursuant to s 58 of the Crimes Act 1900 (NSW). 2. Pursuant to r 51B.6 of the Supreme Court Rules 1970 (NSW). 3. Citing Bathurst City Council v Saban (1985) 2 NSWLR 704. 4. His Honour cited Ridgway v the Queen [1995] HCA 66 and Robinson v Woolworths [2005] NSWCCA 426 (Robinson's Case). 5. See Latoudis v Casey (1990) 170 CLR 534. 6. See Latoudis v Casey at 542. 7. See New South Wales Legislative Council, Parliamentary Debates (Hansard), 1 May 1991 at 2796. 8. Citing Fosse v Director of Public Prosecutions [1999] NSWSC 367. 9. Citing Dong v Hughes [2005] NSWSC 84. 10. See Craig v South Australia (1995) 184 CLR 163 at 177. 11. See A v State of New South Wales (2007) 230 CLR 500 at [76] and [77]. 12. See Craig v South Australia at 180. 13. See Council of Kangan Batman Institute of Technology & Further Education v Australian Industrial Relations Commission (2006) 156 FCR 275 (Kangan) at [63]. 14. See Kangan at [60]. 15. See Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257 at 264 and Canceri v Taylor (1984) 123 ALR 667 at 676. 16. See Coleman v Power (2004) 220 CLR 1 at [117]. 17. See Craig v South Australia at 177. 18. See Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391. 19. See Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 199. 20. See Hope v Bathurst City Council (1980) 144 CLR 1 at 7. 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: 09 July 2019