Morgan v Director of Public Prosecutions

1. [1]

   The Plaintiff, Ms Morgan seeks orders in the nature of certiorari and mandamus quashing the decision of Magistrate Atkinson in the Downing Centre Local Court refusing her application for professional costs under ss 213 and 214 Criminal Procedure Act 1986 (NSW) (“CPA”) when charges against her were withdrawn by the First Defendant, the Director of Public Prosecutions (“DPP”), and remitting the matter to the Local Court for redetermination.

2. [2]

   The Second Defendant, the Local Court of New South Wales has entered a submitting appearance in accordance with the usual conventions: The Queen v Australian Broadcasting Tribunal and Ors; ex parte Hardiman & Ors (1980) 144 CLR 13; [1980] HCA 13 at 35.

Background

1. [3]

   On 21 September 2018, Ms Morgan, a serving police officer, was charged with two offences contrary to s 7(1)(b) Surveillance Devices Act 2007 (NSW) (“SDA”) of recording two telephone conversations with her superiors on 15 February 2018 on her iPad. At that time Ms Morgan was a trainee prosecutor in the Police Prosecutions Command working at the Bankstown Prosecutors Office. One of the telephone conversations was with Sergeant Voroshine (“Voroshine”) and the other with Sergeant Stevens (“Stevens”).

2. [4]

   The material before the learned magistrate suggested that at the time of the calls there had been discord between Ms Morgan and Stevens for some time. Their relationship worsened on the evening of 15 February after Ms Morgan had attended a Prosecution Training Session because she was concerned that her “Phase 1 sign off forms” had not been signed. Ms Morgan called Voroshine distressed and expressed that she felt that Stevens wanted to get rid of her from the Bankstown Office and that Stevens had relayed this feeling to the Prosecution Training Unit. After this conversation, Voroshine called Stevens to inform her of the conversation and encouraged Stevens to contact Ms Morgan and resolve their issues. Later that evening Stevens and Ms Morgan had a telephone conversation which appeared to have resolved the issue (see Sergeant Voroshine and Sergeant Stevens Police Statements). These were the calls the subject of the charges.

3. [5]

   On 18 February 2018 Ms Morgan raised the issue again with Voroshine, expressing her feeling that Stevens statements to her were not genuine and disclosing that she had recorded both telephone calls with Stevens and Voroshine.

4. [6]

   The matter was then the subject of internal police investigation, involving the execution of a search warrant on Ms Morgan’s home by three male officers on 24 February 2018. Police seized Ms Morgan’s mobile phone and iPad, which contained recordings of the two telephone conversations.

5. [7]

   Under s 56 SDA prosecutions for breaches of the Act may not be brought except with the Attorney-General’s written consent. By order published in the Government Gazette Number 86 on 31 August 2012 pursuant to Director of Public Prosecutions Act 1986 (NSW), the DPP is authorised to give that consent. On the application of the Officer in Charge (“OIC”) of the investigation, the Acting Director of the DPP consented to the institution of proceedings by letter dated 14 September 2018.

Procedural history

1. [8]

   Ms Morgan entered a plea of not guilty to the charges at the Downing Centre Local Court on 6 November 2018. On that date the matter was listed for reply on 4 December 2018 when an adjournment to 22 January 2019 was necessary. On that latter date the matter was set down for hearing as a special fixture on 25 and 26 March 2019. Although the plea raised the general issue about Ms Morgan’s guilt, in truth there was no issue that she had recorded the conversations, a matter she had admitted at all times. The real issue was whether her actions were justified by s 7(3)(b) SDA.

2. [9]

   Ms Morgan’s solicitors served a subpoena for production on the Commissioner of Police on 28 February 2019. The NSW Police produced a number of documents to the court in answer to the subpoena, including the diary entries of Ms Voroshine, additional witness statements and email correspondence about Ms Morgan. In the opinion of Ms Morgan’s solicitors many of these documents advanced Ms Morgan’s case.

3. [10]

   On 22 March 2019, three days before the hearing, Ms Goodwin, solicitor, on behalf of the DPP, advised Ms Morgan’s solicitor’s that the charges were to be withdrawn. On 25 March 2019 the charges were formally withdrawn and the proceedings dismissed by Mijovich LCM. On that occasion, Mr McGirr, solicitor for Ms Morgan, notified the court that an application for professional costs would be made. The matter was listed for hearing on 13 June 2019 before Atkinson LCM. The matter was part heard to 6 August 2019. Her Honour requested further written submissions about which party bore the s 7(3) SDA onus and the applicable standard of proof. The application was further heard on 6 August 2019. At the conclusion of the hearing the learned magistrate delivered ex tempore judgment against the plaintiff refusing the costs application.

4. [11]

   Ms Morgan filed her summons for judicial review on 5 November 2019. The matter was listed before me on 2 April 2020, when I made orders for the matter to be determined on the papers and directed the parties to serve any supplementary written submissions on which they intended to rely.

5. [12]

   For context, I interpolate that Ms Morgan’s argument in relation to ss 213 and 214 CPA was that further investigations could and should have been carried out by the prosecution prior to bringing the charges. Mr McGirr argued that the charges under s 7 SDA could not be substantiated because Ms Morgan fell under each of the relevant exceptions in s 7(3)(b). First, Ms Morgan recorded the conversations because it was reasonably necessary for the protection of her lawful interests pursuant to s 7(3)(b)(i); and secondly, Mr McGirr submitted that s 7(3)(b)(ii) applied because Ms Morgan did not make the recordings for the purpose of communicating or publishing the conversation. Mr McGirr argued that the availability of these exceptions to Ms Morgan was readily apparent from the evidence garnered by the OIC. Had reasonable investigations been undertaken the charges would never have been brought. This evidenced the unsatisfactory nature of the investigations. Mr McGirr further submitted that the execution of the search warrant on Ms Morgan’s home displayed impropriety in the manner of the investigations by police.

6. [13]

   Although the DPP made submissions as to the nature of the power and on the proper interpretation of s 7 SDA, they made it clear that they neither consented nor objected to the order sought, submitting rather that it was a matter for the court’s discretion.

Relevant provisions

1. [14]

   Section 213(1) CPA is in the following terms:

2. [15]

   The apparent width of the costs discretion conferred by s 213 is restricted or constrained by s 214(1) CPA, which is expressed in the following terms:

3. [16]

   Section 7 of the SDA provides:

The magistrate’s decision

1. [17]

   I extract the relevant sections of the magistrate’s decision below:

The submissions

1. [18]

   Submissions in chief and submissions in reply were apparently prepared by Ms Morgan’s solicitor Mr R Candelori. Mr J Ireland QC prepared supplementary submissions. It was submitted that the magistrate failed to consider or apply s 214(1)(a) and (b) CPA at all, and that when considering paragraph (d) failed to consider whether it was “just and reasonable” to make an order for costs. It was argued that this failure deprived Ms Morgan of “a decision according to law” (Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1; De Varda v Constable Stengord [2011] NSWSC 868 at [23]; Cliftleigh Haulage Pty Ltd v Byron Shire Council [2007] NSWCCA 13.

2. [19]

   It was further argued that the magistrate’s decision was vitiated by jurisdictional error as her Honour misapplied s 214 CPA by stating that all “four matters” in s 214(1)(a)-(d) must be satisfied to justify an order for professional costs. In this respect it was said that the magistrate dealt with the paragraphs of subsection (1) as “cumulative” considerations. Mr Ireland said that the failure to consider the paragraphs of s 214(1) independently and in the alternative demonstrates that the magistrate misconstrued the statute governing the power her Honour was called upon to exercise.

3. [20]

   In the alternative, it was argued that there was an error of law on the face of the record as the Magistrate failed to give reasons for rejecting the application of s 214(a) and (b) CPA.

4. [21]

   Ms B Baker of counsel for the DPP submitted that in order to obtain prerogative relief the Plaintiff must establish jurisdictional error or error on the face of the record as characterised in Craig v State of South Australia (1995) 184 CLR 163 at 175-176; [1995] HCA 58 (“Craig”). She further submitted, that even if the Plaintiff was entitled to relief on the basis of such an error that the granting of such a relief was discretionary: Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [33]; Cunningham v Local Court of New South Wales [2018] NSWSC 499 at [31]-[32]. However I did not understand her to submit that specific discretionary, as opposed to substantive grounds exist for refusing relief if relevant error is demonstrated.

5. [22]

   Ms Baker submitted that the Magistrate’s remarks that “the costs cannot be awarded unless the Court is satisfied of the four matters that are set out in the legislation” must be read in context with her Honour’s earlier recitation of the statute, which demonstrated an understanding that only one of the subsection’s was required to be satisfied. Ms Baker relied on the decision of O’Brien v Hutchinson [2012] NSWSC 429 at [14] submitting that “the transcript of such reasons [of the Local Court] are not to be construed strictly. Instead their substance is to be examined to see whether the correct test was applied”. Ms Baker argued that the substance of the judgment demonstrated that the Magistrate considered and determined each ground separately.

6. [23]

   In relation to s 214(1)(a) CPA Ms Baker submitted that Ms Morgan’s written submission before the magistrate in relation to this ground were made under a joint heading with s 214(1)(c) with the submissions in respect of both paragraphs focusing on the failure of the police to investigate matters relevant to the statutory exceptions in s 7(3)(b) SDA. Ms Baker submitted that ultimately Ms Morgan’s s 214(1)(a) arguments were “subsumed in” her s 214(1)(c) CPA arguments: Affidavit, Ryan James Thomas, 5 February 2020 (“the affidavit”), Annexure “F” (p 82). In this regard, Ms Baker also referred to the Plaintiff’s failure to correct the magistrate’s characterisation of Ms Morgan’s case as a claim concerned with s 214(b), (c) and (d): Transcript, 6 August 2019, the affidavit, p 63.40.

7. [24]

   Of the Plaintiff’s contentions in respect to s 214(b) Ms Baker said that at the start of the magistrate’s decision her Honour set out the relevant subsection and adopted the words of the subsection in giving her reasoning. Ms Baker said that the use of the words of the statute demonstrated that the Magistrate had regard to the statute and the facts and concluded that there was reasonable cause to institute the proceedings. Ms Baker also said that although the Magistrate’s reasons may be considered brief they were sufficient to adequately reveal the basis for her Honour’s decision (Moloney v Collins [2011] NSWSC 628 at [63]-[65]) and that appropriate allowance should be made for ex tempore judgments (Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15]; Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D) and cost judgments (Gatenby v Senior Constable Ronald Duncombe [2015] NSWSC 551 at [22]).

8. [25]

   In relation to s 214(d) Ms Baker submitted that as the Magistrate had concluded that no “exceptional circumstances” arose there was no necessity or even occasion to consider whether it was “just and reasonable to award costs”.

9. [26]

   No appeal lies to this by a person who has been acquitted or had proceedings against him or her withdrawn from an order of the Local Court refusing costs in respect of summary criminal proceedings. Therefore Ms Morgan invokes s 69 Supreme Court Act seeking orders in the nature of certiorari and mandamus. An order in the nature of certiorari is only available where there has been “jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record””: Craig at 175-176.

10. [27]

    It may be now trite to say, but when approaching an application for judicial review of a decision of the Local Court, it is well to bear in mind the following passage from Craig about the scope of certiorari (p 175):

Jurisdictional error

1. [28]

   In Craig the High Court defined jurisdictional error in the following terms at 177:

2. [29]

   Ms Morgan contends that there has been jurisdictional error by way of misconstruction and misapplication of the statutory regime for awarding costs to a defendant in summary criminal proceedings contained in ss 213 and 214 CPA. In Craig (177-178), the High Court emphasised that “an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case”. The High Court noted that in that “category of case, the line between jurisdictional error and mere error in the exercise of jurisdictional may be particularly difficult to discern”: Craig 178.

3. [30]

   As I have said, in her written submissions Ms Baker drew my attention to the decisions of Gatenby v Duncombe and O’Brien v Hutchinson. Both of these decisions are concerned with judicial review of Local Court decisions dealing with an award of professional costs in summary criminal proceedings and provide relevant guidance on the subject of finding jurisdictional error, or not. In O’Brien Beech-Jones J considered that “six matters should be kept in mind” in cases concerning jurisdictional error; I have extracted some of these considerations below at [8]:

4. [31]

   Adams J added to these considerations in Gatenby the following at [22]:

5. [32]

   An order in the nature of certiorari and mandamus may be sought where there is an identifiable error of law on the face of the record. However, in considering such an application the Court may only have regard to the record: Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [99]. In Kirk v Industrial Court of NSW at [89] the High Court held that the documentation that could be relied upon on the face of the record for the purposes of certiorari included the pleadings, the orders made and “the reasons expressed by the court or tribunal for its ultimate determination”: s 69(4) Supreme Court Act 1970 (NSW).

Paragraph 214(1)(a)

1. [33]

   Ms Morgan contends that the Magistrate failed to consider and apply s 214(1)(a) CPA. It is submitted that although subsection (a) and (c) were similar, they should have been considered separately and the Magistrate should have provided separate reasons for dismissing the submission with respect to s 214(1)(a) CPA. In this regard I accept Ms Baker’s submission that Ms Morgan subsumed her argument in relation to subsection (a) with subsection (c). They were dealt with together in Mr McGirr’s written submissions on professional costs, noting that the submission with respect to s 214(1)(a) were made under a joint heading with subsection (c). I have extracted the relevant parts of those submissions below (the affidavit, p82):

2. [34]

   Ms Baker also drew attention to Mr McGirr’s further written submissions provided to the Magistrate as evidence of the conflation of subsections (a) and (c). I also extract those sections below (the affidavit, Annexure “J”, p 259, at [26]):

3. [35]

   To my mind it is clear that Mr McGirr did not make any separate written submissions of substance before the magistrate in relation to s 214(1)(a) alone. I also bear in mind that at no time did Mr McGirr raise paragraph 214(1)(a) in the oral hearing before the magistrate. I am prepared to accept that given the overlap between the subject matter of ss 214(1)(a) and 214(1)(c) that Mr McGirr intended to deal with the evidence and argument relating to the two subsections together and that any submission in relation to s 214(1)(a) was subsumed within his submissions relating to s 214(1)(c). The magistrate correctly dealt with the submissions made to her and given the lack of attention drawn to s 214(1)(a) by Mr McGirr I am not persuaded that her Honour was required to deal with s 214(1)(a) independently.

4. [36]

   Mr McGirr dealt with the circumstances of the execution of the search warrant at [22] of his first written submissions (the affidavit, p82) and not at all in his supplementary written submissions. He referred to them as “an egregious overreach”, which may be taken to be a submission that this aspect of the investigation was conducted in an improper manner within paragraph 214(1)(a). It is true that her Honour did not refer to this in her reasons. However this matter was not mentioned in oral argument on 13 June 2019. The argument that day focussed on the exculpatory matters in s 7(3)(b) SDA. Again, on the further hearing on 6 August 2019 the search warrant was not mentioned, s 7(3)(b) SDA was the focus, so far as the substance of the application was ventilated orally. On the second day the magistrate said (the affidavit, p 63.40) :

5. [37]

   A failure to consider and evaluate an argument seriously advanced on uncontested or incontestable facts may amount to jurisdiction error. Daranicknikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]. However the argument was certainly not in the vanguard of Ms Morgan’s attack as I have tried to demonstrate. The facts were not uncontested. As her Honour said in relation to the s 7(3)(b) issue the evidence was untested in court. There was no attempt to prove the facts in relation to the execution of the search warrant. In any event search warrants tend to be executed without notice lest evidence be lost or destroyed. This circumstance may cause distress to the occupier of premises, but of itself it could hardly render the manner of police investigation of a matter unreasonable or improper. If there was error in her Honour failing to mention the search warrant in the context of s 214(1)(a) I would not regard it as material.

Failure to consider and apply s 214(1)(b)

1. [38]

   Ms Morgan submits that the magistrate failed to consider and apply s 214(1)(b) Criminal Procedure Act. Ms Baker submits that the Magistrate set out the relevant legislation before analysing the evidence and using the words of the statute to form a conclusion that subsection (b) was not made out.

2. [39]

   For convenience I have extracted the provision of the judgment below which Ms Baker says specifically deals with subsection (b):

3. [40]

   I agree with Ms Baker’s submission. It is clear from the magistrate’s decision that she sets out the relevant legislation to be applied and then deals with the substance of Mr McGirr’s arguments in some detail. The magistrate adopted the words of the statute to conclude that subsection (b) had not been satisfied. In this regard, I do not accept the submission that her Honour failed to give reasons for her decision, as I have said she sets out the law before going on to consider the relevant facts and materials and grounding a conclusion that subsection (b) has not been met. Her Honour noted that the material and evidence was put before the DPP for their consent before proceedings were instituted. I infer that on these facts her Honour was persuaded that the steps of reviewing the evidence, seeking and obtaining the consent of the DPP to institute proceedings meant that the prosecutor believed in good faith that a case could reasonably be made out on the evidence available and she was not satisfied the proceedings were initiated without reasonable cause. If there was error here, and I am not so persuaded, it was an error within jurisdiction.

Failure to consider and apply s 214(1)(d)

1. [41]

   Ms Morgan submitted that the magistrate failed to consider the statutory test of s 214(1)(d), specifically whether it was “just and reasonable” to award professional costs. Ms Morgan further submitted that the magistrate did not set out s 214(1)(d). Ms Baker submitted that as the magistrate had concluded that no exceptional circumstances arose in Ms Morgan’s case there was no reason to consider whether such an order was just and reasonable in the circumstances.

2. [42]

   I agree with Ms Baker’s submission, in concluding that no exceptional circumstances were present there was no necessity for her Honour to consider whether it was just and reasonable to award professional costs. Moreover, when first setting out Ms Morgan’s arguments in respect of s 214(1) the magistrate paraphrased the wording of s 214(1)(d) when she said “So what is being sought is … 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”. I regard that statement as effectively setting out the statutory framework of s 214(1)(d) which the magistrate was required to apply. It is unnecessary for a magistrate to refer in terms to the provision provided the reasons demonstrate its substance has been applied. There is no question about that here.

3. [43]

   It is clear from the words of the paragraph that the “just and reasonable” limb is not a free-standing test. That standard is to be applied through the lense of a finding of any “exceptional circumstances relating to the conduct of the proceedings [not the investigation] by the prosecutor”. If no exceptional circumstances are found, no occasion arises for the application of the standard established by the phrase “just and reasonable”.

Erroneous application of s 214(1)

1. [44]

   Ms Morgan submits that the magistrate “erroneously applied” s 214 by stating that all four matters referred to in paragraphs (a)-(d) had to be established. I infer from her application for judicial review that Ms Morgan is submitting that the magistrate occasioned jurisdictional error in the Craig sense by misconstruing the statue and so misconceived the nature of the function which her Honour was performing.

2. [45]

   In this regard I accept that the magistrate was incorrect in saying that “costs cannot be awarded unless the Court is satisfied of the four matters that are set out in the legislation”. However, I am not persuaded that her Honour misconstrued the statute and the nature of the function she was performing. It is clear that before summarising Mr McGirr’s arguments with respect to s 214(1) CPA that the Magistrate set out the relevant legislation to which she was to have regard, stating that:

3. [46]

   Ms Morgan further submitted that the magistrate’s conclusion that “the ground has not been made out” demonstrates that her Honour conflated the subsections of s 214(1) into one ground. I am not persuaded by this submission. It is clear that viewed in context the magistrate at that point is addressing s 214(1)(d) only. Contrary to Ms Morgan’s submission her Honour analysed and applied each subsection separately. Her Honour did not fall into the cumulative approach error contended for by Ms Morgan.

4. [47]

   To approach the matter in this way is to do no more than apply what is sometimes referred to as the beneficial or benign approach to the construction of a decision-maker’s reasons for the purposes of judicial review. I have already pointed out that this approach will be generally applied in relation to decisions in the Local Court, having regard to the pressure of work under which magistrates operate. For reasons already rehearsed, it was desirable for her Honour to give an oral or ex tempore judgment on the day. It is clear from the transcript of it that the magistrate did not have the opportunity to revise her reasons before release of the transcript. As I have said, her Honour did say at one point in her reasons that each of paragraphs (a) – (d) had to be satisfied. But as I have tried to demonstrate this must be taken to be a slip of the tongue. For considering her Honour’s reasons as a whole and reading them fairly it is clear that she approach each of the paragraphs of s 214(1) CPA as alternatives. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at 272, Brennan CJ, Toohey, McHugh and Gummow JJ said:

Error of law?

1. [48]

   Moreover, on the grounds advanced by Ms Morgan I see no basis for concluding that the magistrate made an error of law on the face of the record. It is often observed that frequently there will be an overlap between jurisdictional error, on the one hand, and errors of law on the face of the record on the other. The same matter may fall happy into either category. Here where the argument has proceeded by close reference to her Honour’s reasons for judgment the errors complained of, had any of them been made good, would have fallen into each category: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43.

Orders

1. [49]

   My orders are:

   1. (1)

      Dismiss the proceedings against the First and Second Defendant;

   2. (2)

      The Plaintiff is to pay the First Defendant’s costs in these proceedings.