Case thrown out at Sutherland – Costs awarded.

I represented the client, under the guidance of Mr Dilip Rai from Rai Lawyers in Parramatta, we found ourselves appearing at Court against one charge of Assault Occasioning Actual Bodily Harm (AOABH).

In a surprise move, the Prosecutor and the Officer in Charge (OIC) decided to append an additional charge of common assault to our client’s existing case. Obviously to fix up some apparent weakness on their case. This last-minute alteration necessitated a re-evaluation of our strategy, and after a strategic conference with our client, we chose to push on with the hearing rather than seeking an adjournment.

As the hearing proceeded, evidence was presented, which much cross examination underscored the shortcomings in the police investigation. Specifically, the lack of due diligence in examining various aspects of physical evidence, failure to ask questions of witnesses. The matter was swiftly dismissed by Magistrate Claire Farnan.

WihtIn a gratifying turn of events, we were able to secure costs under section 214, resulting in a cost order against the prosecution. Our client, to put it mildly, was ecstatic at the outcome.

Assault Occasioning Actual Bodily Harm, as per section 59, holds an individual liable to a five-year imprisonment term for an assault resulting in actual bodily harm. If this offence is committed in the company of others, the accused can face up to seven years of imprisonment.

In the context of awarding professional costs to the accused against a prosecutor in public capacity, section 214 limits this award under certain conditions. It states that such costs will not be awarded unless the court is convinced of one or more of the following circumstances:

(a) The investigation into the alleged offence was carried out in an unreasonable or improper manner,
(b) The proceedings were initiated without reasonable cause or in bad faith, or were conducted in an improper manner by the prosecutor,
(c) The prosecutor unreasonably failed to investigate, or to properly investigate, any relevant matter that they were aware of or should have been aware of, which suggested the accused might not be guilty, or for any other reason, the proceedings should not have been brought,
(d) Because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award professional costs.

Section 214 does not apply when the prosecutor is acting in a private capacity. However, an officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is not considered to be acting in a private capacity if they act as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.