Police v Horsfield; Police v Dowd [2013] NSWLC 17

Police v Horsfield; Police v Dowd [2013] NSWLC 17

Because the Police adduced no evidence about the nature of Mr Horsfield's retainer with the Aboriginal Legal Service, the court applied the assumption that a solicitor-client retainer existed and that the solicitor could look to the accused for payment of costs. Representation by the Aboriginal Legal Service alone did not bar Mr Horsfield's application under s 213. The findings that police had illegally entered domestic premises and that the prosecution evidence was excluded established that the investigation was conducted unreasonably and improperly and that the proceedings were initiated without reasonable cause, satisfying s 214(1). The costs claimed for both accused were just and...

Jurisdiction
Australia
Judgment Date
10 October 2013
Procedural Posture
Criminal Summary Proceedings; Costs Application / After Prosecution Evidence Was Excluded Under S 138 of the Evidence Act 1995 and Accused Persons Applied for Professional Costs
Outcome
Costs awarded in favour of the accused persons.
Legal Topics
['professional Costs in Summary Proceedings' 'costs for Legally Aided Accused Persons' 'aboriginal Legal Service Representation' 'deemed Retainer' 'indemnity Principle' 'exclusion of Improperly or Illegally Obtained Evidence']
['criminal Law' 'costs' 'evidence'] ['professional Costs in Summary Proceedings' 'costs for Legally Aided Accused Persons' 'aboriginal Legal Service Representation' 'deemed Retainer' 'indemnity Principle' 'exclusion of Improperly or Illegally Obtained Evidence']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Criminal Summary Proceedings; Costs Application / After Prosecution Evidence Was Excluded Under S 138 of the Evidence Act 1995 and Accused Persons Applied for Professional Costs

Legal Issues

  1. 1 ['Whether an accused represented by the Aboriginal Legal Service may obtain professional costs under s 213 of the Criminal Procedure Act 1986.' 'Whether the court should assume the existence of a solicitor-client retainer, with an obligation to pay costs, absent evidence to the contrary.' 'Whether the Police discharged the onus of proving that the retainer between Mr Horsfield and the Aboriginal Legal Service precluded a costs order.' 'Whether the criteria in s 214(1) of the Criminal Procedure Act 1986 were satisfied.' 'Whether the amounts claimed for professional costs were just and reasonable.']

Ratio Decidendi

Because the Police adduced no evidence about the nature of Mr Horsfield's retainer with the Aboriginal Legal Service, the court applied the assumption that a solicitor-client retainer existed and that the solicitor could look to the accused for payment of costs. Representation by the Aboriginal Legal Service alone did not bar Mr Horsfield's application under s 213. The findings that police had illegally entered domestic premises and that the prosecution evidence was excluded established that the investigation was conducted unreasonably and improperly and that the proceedings were initiated without reasonable cause, satisfying s 214(1). The costs claimed for both accused were just and...

Court Disposition

Costs awarded in favour of the accused persons.

Orders

  • ['The prosecutor in the matter of Nathan Dowd is to pay to the registrar for payment to the Legal Aid Commission on behalf of the accused the amount of $14,850 by way of professional costs.' 'The prosecutor in the matter of Tyron Horsfield is to pay to the registrar for payment to the ALS on behalf of the accused...