MAN FALSELY ACCUSED OF INDECENT ASSUALT SEEKS FOR COSTS ORDER ALLEGING THAT THE INVESTIGATION INTO THE ALLEGED OFFENCES CHARGED AGAINST HIM WAS CONDUCTED IN AN UNREASONABLE OR IMPROPER MANNER

Basic v Senior Constable Brien [2020] NSWSC 1425 (16 October 2020)  

This case involves the plaintiff seeking for costs order on the ground that the investigation in to the alleged offences charged against him was conducted in an unreasonable or improper manner  

Facts:  

Mr. Basic was charged with two counts of assault with an act of indecency contrary to s 61L of the  Crimes Act 1900  (sequences 1 and 2), one count of inciting a person over the age of  16 years to commit an act of indecency contrary to s 61N(2) of the Crimes Act  (sequence 3) and one count of stalking or intimidating a person with intent to cause fear of physical or mental harm contrary to  s  13(1)  of the  Crimes (Domestic and Personal Violence) Act 2007.  

Mr. Basic’s solicitor filed written submissions claiming that a costs order should be made in his favour as the investigation into the alleged offences was conducted in an unreasonable or improper manner, and that the first defendant unreasonably failed to investigate (or properly to investigate) a matter of which he was aware and which suggested that Mr. Basic might not be guilty or that the proceedings should not have been brought: s 214(1) (a) and (c) of the Act.  

Kenan Basic seeks an order in the nature of certiorari pursuant to s 69(1) of the Supreme Court Act 1970 quashing the decision of his Honour Magistrate Walsh made on 18 July 2019 refusing Mr Basic’s application for costs in criminal proceedings. He seeks an associated order that the matter be remitted to the Local Court of New South Wales in order that his application might be determined according to law. Mr. Basic contends that his Honour made a series of errors in his consideration of the issues raised by s 214(1) of the Criminal Procedure Act 1986, which governed the original application.   

Issue: Should the court grant the costs order filed by Basic on the ground that the investigation into the alleged offences was conducted in an unreasonable or improper manner?  

Law:  

• S214(1) of the Criminal Procedure Act 1986- Professional Cost are not awarded in favour of an accused person in summary proceedings unless the court is satisfied as to any one or more of the following:  

(a) That the investigation into alleged offence was conducted in an unreasonable or improper manner  

(c) That the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the accused person might not be guilty or that, for any other reason, the proceedings should not have been brought  

Analysis:  

Mr. Basic bore the onus of satisfying his Honour, in non-technical terms, either that the police investigation of the alleged offences was conducted in an unreasonable manner and/or that the prosecutor unreasonably failed properly to investigate some matter that potentially exculpated him. All of the evidence before his Honour supported the conclusion that the police acted initially upon the complaint made by Ms. Gray but commendably made further enquiries within a very short time in an apparent attempt to verify her story. Principal among those enquiries was the visit to the Revesby site and the recognition of the fact that the alleged incident was likely to have been captured on video. That investigative success ultimately led to Ms. Gray’s confession that she had fabricated the events that constituted sequences 1 and 2. It is somewhat difficult to understand precisely, or even generally, what more in these circumstances the police could have done or, more relevantly, what Mr. Basic contends they unreasonably failed to investigate. Indeed, but for the fact that the police made the inspired decision to visit the Revesby site, Ms. Gray’s lies may never have been exposed or only exposed very much later.  

The question of whether or not a witness or complainant will be believed is not finally a matter for investigative police to determine unless it is so obvious that the complaint is so frivolous or fictitious that it should not be pursued. In the present case, on one very strong view of the matter, having regard to all of the facts which Mr. Basic was at pains to emphasize, it would clearly not be unreasonable for police to form the view that Ms. Gray’s motivation for falsely alleging the assaults constituting sequences 1 and 2 was because the allegations that constituted sequences 3 and 4 were true.  

Mr. Basic was required to establish certain matters. He is not entitled to some silent inference, because in the events that occurred the police decided not to proceed with any of the charges, that their investigation was therefore unreasonable or that there was some other matter that the police failed to investigate. Mr. Basic cannot succeed merely by contending, expressly or otherwise, that the prosecution should have been terminated earlier than it was. It is quite clear to me that there is no other fact or matter to which Mr. Basic has drawn attention to support the contention that the police investigation was unreasonable. He did not satisfy his Honour that there was any such matter. The uncontroversial fact that Mr. Basic feels aggrieved because he was prosecuted at all is beside the point.  

Conclusion: The court is not satisfied that his Honour committed any of the errors for which Mr. Basic contends, nor indeed any error at all.  

#CostsOrders