Will v Brighton (No 2)

THE COURT: On 23 December 2020, the Court delivered judgment in Will v Brighton [2020] NSWCA 355 (the principal judgment) with a direction that the parties file short submissions by 5 February 2021 as to the appropriateness of an order Bell P proposed at [107]:

The reasons why such an order was proposed were set out in Bell P’s reasons at [97]-[106], those of Basten JA at [126] and Simpson AJA at [141]-[142]. This judgment should be read in conjunction with those reasons and the principal judgment more generally.

In short, all members of the Court considered that the interests of justice required, on the one hand, the correction of error in the interpretation and application of the defences relied upon by Mr Daniel Brighton (the Respondent) and upheld by Rothman J but, on the other hand, were deeply concerned that there had been no proper determination of the existence of the mental element of the offences before the Local Court magistrate, on the proper interpretation of s 530 of the Crimes Act 1900 (NSW), as elucidated in the principal judgment of this Court.

The orders, as finally made by the primary judge were, relevantly, as follows:

In a separate judgment, Brighton v Will (No 2) [2020] NSWSC 925, Rothman J ordered that the prosecutor, Ms Will (the Applicant) pay the Respondent’s costs of and incidental to the proceedings before him and made no order as to the costs of the Local Court proceedings.

In her submissions filed pursuant to the Court’s direction, the Applicant accepted that:

The consequence of allowing the appeal from orders 2 and 4 made by Rothman J but not order 3 is that, whilst the original conviction of the Respondent will remain quashed, Rothman J’s order dismissing the charges preferred against the Respondent will be set aside and they will remain to be determined in accordance with law on remitter to the Local Court.

Mr Odgers SC, who appeared with Mr Sahade on behalf of the Respondent, submitted that:

In brief reply submissions, the Applicant confirmed that it was the Applicant’s case that the Respondent did have an actual, subjective intention in respect of the alleged offences but resisted any order of the kind proposed in (b) and (c) of the Respondent’s submissions, as reproduced above. This was on the basis that:

The Applicant also submitted that “[t]his is not a case where the evidence forecloses the possibility of a conviction”, and that the:

The Applicant also submitted that, consistent with her prosecutorial duty, she would only pursue the prosecution where there were reasonable prospects of securing a conviction.

Neither party called into question the Court’s power to condition the grant of leave to appeal in the way contemplated in [107] of the principal judgment. Such an order in the circumstances of the present case would be consistent with the requirement mandated by s 58(1) of the Civil Procedure Act 2005 (NSW) that the Court “seek to act in accordance with the dictates of justice” when deciding whether to make an order of a procedural nature such as a grant of leave to appeal.

Although not completely analogous, it may be noted that, not infrequently, the High Court conditions the grant of special leave to appeal upon the applicant agreeing or undertaking not to disturb the costs orders of the Court below in the event that special leave is granted and the appeal succeeds. Numerous examples of this practice are usefully digested in K Pender, “The ‘Price’ of Justice? Costs-Conditional Special Leave in the High Court” (2018) 42 Melbourne University Law 149, 191-198.

In our opinion, conditions (b) and (c) as sought by the Respondent (see [8] above) are not appropriate. It is not appropriate for this Court to make a prima facie assessment in respect of an element of the alleged offences, especially in circumstances where the proposed remitter of the matter to the Local Court was not as a consequence of any argument raised by the Respondent either in this Court or before Rothman J, where the Court does not have before it all of the evidence that was before the Local Court magistrate, and where the Applicant has foreshadowed that she “may lead new evidence, not led at the first trial, directed at establishing the intention element of the offence.”

The Respondent invited the Court to order that the further hearing on remittal should be before a magistrate other than McAnulty LCM. However, the allocation of a magistrate to hear the matter on remittal is primarily a matter for the Local Court. The proposed order should only be made if this Court were satisfied that there would be a reasonable apprehension of pre-judgment if the magistrate responsible for the earlier conviction and sentence were to rehear the matter. Although there are good reasons for allocating the remitted hearing to a different judicial officer, if only to avoid any assertion of a reasonable apprehension of pre-judgment, it is not necessary for this Court to make such an order. In effect such an order is a form of prohibition directed to the internal management of an inferior court, which assumes that the lower court will not consider the matter properly when it arises.

The parties were also directed to file any submissions they wished to make on the question of costs.

On this question, the Applicant does not seek to disturb the costs order in the proceedings before Rothman J which were in the Respondent’s favour (see [5] above) but submitted that the same approach taken below should guide the award of costs on appeal and that the Applicant, having been vindicated on the substantive challenge to Rothman J’s judgment in respect of the defences which his Honour upheld, should be awarded her costs in this Court. Thus the Applicant submitted:

The Respondent, on the other hand, submitted that there should be no order as to costs on the basis that:

The Respondent further submitted that:

In any event the Respondent submitted that, if ordered to pay the Applicant’s costs, he should be issued with a certificate under the Suitors’ Fund Act 1951 (NSW).

Given the mixed outcome of the appeal, and the fact that, although the Applicant succeeded in challenging Rothman J’s interpretation and application of the defences relied upon by the Respondent, the result of the hearing in the Court of Appeal is that his Honour’s order that the convictions be set aside will not be quashed and the matter will be remitted to the Local Court, the just result is that there be no order as to the costs of the appeal.

For the above reasons we would propose the following orders: