When Can Legal Costs Be Ordered Against Police in the NSW Local Court?

Two cannabis activists who beamed a cannabis message onto the sails of the Opera House have not only had the charges brought against them dropped, the New South Wales Police Force will need to pay for their legal costs.

The conduct

Alec Zammit and Will Stolk were at the Park Hyatt on April 20, 2022, projecting the slogans “who are we hurting” and “420” from their room onto the Sydney Opera House. 

The date and the time are both significant – 420 is a tradition that began in the US, but has slowly made its way around the world. 20 April has long been the day for protests about legalising marijuana and ‘celebrating’ all things relating to weed culture.

Police burst into the hotel room at 4.20am. The young men were each charged with a by-law which prohibits people from distributing advertising on the premises of the Opera House. 

Two-year legal battle to clear their names 

After a two year legal battle, during which the duo were represented by James Clements  and Vinny Vijay of Sydney Criminal Lawyers, police withdrew the charges, after which the Senior Associate criminal defence lawyers made a successful application for legal costs.

Mr Zammit and Mr Stolk had been on bail for 22 months, and were each facing a criminal record as well as a fine of up to $1,100. 

The offence for which they were charged was contained in section 9 of the Sydney Opera House Trust By-law 2021, which provides that:

(1)  A person must not do the following on the Opera House premises:

(a)  sell, hire, display for sale or hire or solicit for sale or hire a service, article or thing,

(b)  distribute an article or thing for commercial or promotional purposes,

(c)  conduct, or cause or assist in the conduct of, an amusement, entertainment, instruction or performance,

(d)  conduct, or cause or assist in the conduct of, a public demonstration,

(e)  use an audio, loudspeaker or broadcasting equipment or camera, whether photographic, cinematic or video, for commercial purposes,

(f)  use a device to record or transmit sound or images for commercial purposes,

(g)  distribute or display, by oral, visual, written, electronic or other means, an advertisement, sign, bill, poster or other promotional material,

(h)  undertake a charitable collection,

(i)  operate a radio or other electronic device, or play a musical instrument, at a volume likely to cause inconvenience to another person,

(j)  operate a public address system, loudspeaker or similar device,

(k)  allow an animal that is under the person’s care or control onto the premises,

(l)  deface, damage, obscure or interfere with a sign or notice displayed on the premises,

(m)  launch or land an aircraft.

They defended the charges against them based on the fact the offence did not extend to their situation.

The application for costs

New South Wales is the most difficult jurisdiction in Australia to make a successful application for costs against the New South Wales Police Force in criminal cases.

In the case of Mr Zammit and Mr Stolk, the applications for costs were made under sections 213 and 214 of the Criminal Procedure Act 1986 (NSW).

Section 213 of the Act sets out the circumstances in with legal costs may be awarded to defendants in summary proceedings, which are those finalised in the Local Court.

It provides as follows:

(1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn.

(2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.

(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because:

(a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or

(b) the matter is withdrawn or the proceedings are for any reason invalid.

(5) The order must specify the amount of professional costs payable.

Section 214 of the Act sets strict limitations on awards of costs against prosecutors acting in a public capacity, which includes the New South Wales Police Force.

The section provides as follows:

(1) Professional costs are not to be 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 the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an 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,

(d) 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.

(2) This section does not apply to the awarding of costs against a prosecutor acting in a private capacity.

(3) An officer of an approved charitable organisation under the Prevention of Cruelty to Animals Act 1979 is taken not to be acting in a private capacity if the officer acts as the prosecutor in any proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003 .

The defence lawyers from Sydney Criminal Lawyers were able to discharge the onus of establishing there were exceptional circumstances in the continued prosecution of the charges which justified an award of costs against the police.

It determined that each defendant therefore be awarded $2750 on account of legal costs.

Going to court for a criminal offence?

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