By Paul Gregoire and Ugur Nedim
Natalia Mikhaylova faced a Local Court defended hearing over two counts of common assault, which is an offence under section 61 of the Crimes Act 1900 (NSW) carrying a maximum penalty of 2 years in prison.
The charges were dismissed by the NSW Local Court in November 2023, as the court found the prosecution had failed to make out a prima facie case at the close of its case; in other words, and taking the prosecution evidence at its highest, a reasonable fact-finder properly instructed could not reach a decision that the essential elements of the offence of common assault had been established.
This finding meant the case could not proceed beyond the close of the prosecution case, and the proceedings were therefore dismissed at that stage.
After this had occurred, Mikhaylova made an application for costs against prosecuting police under sections 213 and 214 of the Criminal Procedure Act 1986 (NSW).
When the presiding magistrate refused the application for the police to pay his costs, Mikhaylova sought to appeal that decision to the NSW District Court, for “cost compensation orders only”.
Self-represented
Mikhaylova had represented herself in court during the Local Court hearing, although she had obtained advice and legal representation at the earlier pretrial stages of her proceedings.
During the District Court appeal which took place on 19 March 2024, the Crown prosecutors asserted that because the defendant did not file for an appeal in relation to the charge – and could not as it had been dismissed – the District Court lacked any jurisdiction to consider an appeal against a magistrate’s refusal to grant costs to a defendant.
In response to the Crown submissions, Mikhaylova filed two affidavits, one in January 2024 and another in February 2024, in which she detailed her reasons to dispute the prosecution’s claim that the NSW District Court lacks jurisdiction in regard to Local Court costing decisions.
Applications for costs in criminal cases
Upon a criminal case being withdrawn or dismissed in the Local Court, a defendant can make an application for the other side to pay his or her legal costs.
In the event that application is successful, the court will usually make an order for costs to cover legal fees and associated payments, based on an approved rate, which may not cover everything.
The procedures applying to this basic awarding of court costs to a former defendant are set out within the Costs in Criminal Cases Act 1967 (NSW).
However, Mikhaylova was appealing for a different sort of costs as per the stipulations set out in the Criminal Procedure Act, which are defined as professional costs under section 211, which states these are other than court costs and relate to expenses and disbursements to legal representatives.
Section 212 of the Criminal Procedure Act, outlines that any award made under this legislation has no bearing on general costs awarded, while section 213 stipulates that professional costs can be awarded when the magistrate considers it “just and reasonable” due to manner of proceedings.
A question of jurisdiction
NSW District Court Judge David Barrow outlined in his 22 March 2024 findings that the jurisdiction of the court over which he was presiding during the appeal proceedings, is established via the District Court Act 1973 (NSW), as well as the Criminal Procedure Act and other relevant legislation.
And the court’s powers to hear appeals from the Local Court are set out within the Crimes (Appeal and Review) Act 2001 (NSW), with sections 11 and 12, providing that an appeal against conviction or sentence can be lodged within 28 days of a Local Court decision. Yet, it makes no mention of costs.
However, subsection 23(2) of the Crimes (Appeal and Review) Act (the Act) provides that the prosecution can appeal against any Local Court costs award relating to committal hearings, as well as those made in relation to summary proceedings.
The contrast between sections 11 and 12 compared with section 23 “is a clear indication that there is no power for an unsuccessful applicant to appeal to the District Court against a refusal to grant a costs application made pursuant to the Criminal Procedure Act”, his Honour made certain.
And the judge added that “if such an appeal was available, it can expect that it would have been expressly provided for” within sections 11 and 12 of the Act.
No jurisdiction without valid appeal
Mikhaylova, however, raised section 28 of the Crimes (Appeal and Review) Act, which states that on appeal, the District Court may exercise any function that the Local Court can during proceedings, and this extends to making a cost order to be paid by either party, in line with section 70.
The appellant further claimed that this section “explicitly states” that the NSW District Court does “without any limitations” possess “the power to exercise any function that the Local Court could have exercised in the original Local Court proceedings, which would include costs orders made”.
But the fault with this argument, his Honour found, is that in order for the District Court to exercise the section 28 functions, it must already have a valid appeal before it to determine or else no such awarding of any particular costs can occur.
Judge Barrow then turned to section 70 of the Act, which provides limits to when costs can be awarded against a prosecutor, which include when an inquiry has been “unreasonable or improper”, the proceedings were in “bad faith”, or the prosecutor failed in some manner in investigating.
His Honour added that the section 70 powers “are only enlivened when there is a substantive matter before” the court, and the authorities that Mikhaylova cited as supporting her position, weren’t actually relevant to her specific set of circumstances.
“I have been unable to identify any relevant authority that supports the appellant’s argument as to this court’s jurisdiction,” Judge Barrow stated.
But a 1998 authority cited by the prosecution ruled that the NSW District Court had no jurisdiction to hear an appeal of a magistrate’s cost decision, and his Honour found this was the last such case that had bearing on the current one.
“My conclusion is that the District Court lacks jurisdiction to hear and determine the appellant’s proposed appeal against the refusal in the Local Court of her application for costs pursuant to the Criminal Procedure Act,” his Honour ruled on the 22 March this year.
“For this reason, I order that the appeal be dismissed for want of jurisdiction,” he ended.
