Getting Police to Pay Your Legal Costs in Criminal Cases in NSW

Poppy Morandin.

Despite recent controversy, NSW Police squad ‘Strike Force Raptor’ has received a 40 per cent funding boost.

The squad, which is described as a ‘proactive, high-impact operation targeting Outlaw Motorcycle Gangs (‘OMCGs’), and any associated criminal enterprises’, was founded in 2009.

It became a standalone unit within the State Crime Command in March and now has 115 staff.

Its budget in its first full year of operation began at $250,000.

However, as revealed in answers to questions on notice tabled in NSW Parliament, its funding now stands at 15 million, up from $10.6m the previous year.

This is despite officers connected to the squad being involved in various recent controversies, with a common theme of overstepping their boundaries.

In March, the Law Enforcement Conduct Commission (‘LECC’) found that three officers from the squad had engaged in the “deliberate, deceitful and malicious harassment” of a lawyer, who was representing a client in a case against Strike Force Raptor.

The accused person was alleged to be a member of an outlaw motorcycle gang and was charged by police from Strike Force Raptor with five animal cruelty charges.

On the day the matter was listed for Hearing, three officers from the squad engaged in ‘targeting’ of the lawyer, as found within their own evidence to the LECC.

This targeting included issuing the lawyer with infringement notices, defect notices, and following him as he made his way to court.

The lawyer was so ‘shaken up’ by the officers’ conduct that he sought the matter be adjourned and informed the client that he could not act for him due to this.

“The intimidation over a period of two days at the solicitor’s home, place of work and the NSW Local Court, is not only an affront to international standards but undermines community trust in the NSW Police Force.” noted Australian Lawyers for Human Rights (ALHR) President, Kerry Weste.

The LECC commented that: “the task of these officers is to enforce the law. If the unlawful conduct engaged in by these officers is allowed to continue and be condoned because of some imagined higher purpose, there can be no good to come from it for the people of New South Wales.”

Furthermore, five men who were arrested by Strike Force Raptor officers at a Guildford petrol station have had all charges dropped, with legal costs sought after police “grossly misrepresented” the confrontation.

Police from the squad had approached two men outside the service station. Police alleged that neither of the men were wearing a face mask, which was a breach of the contemporaneous Public Health Order.

However, the pair claimed to have been in the petrol station purchasing face masks, which was supported by the CCTV from within the station.

Officers then alleged the men became aggressive, with one punching an officer.

During their arrest, three men known to the pair arrived and allegedly began making threats towards the officers, which led to calls for backup shortly after.

Police in their report of the incident claimed that they were attacked first with one of the men throwing a ‘flurry of closed fist punches’ to one of the officers ‘head and torso’.

However, CCTV and videos taken by on-lookers phones contradict those claims.

CCTV video appears to show one of the police officers kneeing one of the men, who was restrained, up to five times as he lay on the ground.

One of the officers also appears to strike one of the men multiple times, as he was being arrested.

The string of charges which were laid against the men, including assaulting, and resisting police, have now been formally withdrawn.

Police have consented to paying the legal costs of the men, however, have disputed the quantum of the $64,000 which the men are seeking.

The case will return to court in February for a hearing on costs, with further proceedings expected as the men seem set to sue for the ‘wrongful arrests’.

In NSW, costs may be sought by the defence after cases have been withdrawn by police, dismissed by the court, or due to unreasonable conduct/delay during proceedings.

How to Get Police to Pay Your Legal Costs in Criminal Cases in NSW

Certain limitations are placed on when costs may be awarded against the prosecution, with the court required to be satisfied it is just and reasonable on one of the following grounds to award costs:

  • That the investigation into the alleged offence was conducted in an unreasonable/improper manner.
  • That the proceedings were initiated without reasonable cause, in bad faith, or were conducted by the prosecution in an improper manner.
  • That the prosecution unreasonably failed to investigate/investigate properly any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought.
  • That other exceptional circumstances relating to the conduct of the proceedings by the prosecution justify an award of costs.

The relevant applicable legislation regarding whether or not a court will award costs against police includes Section 213 and Section 214 of the Criminal Procedure Act 1986 (NSW), when dealing with summary offences, and Section 117 for committal proceedings.

The amount of costs must be just and reasonable, with the onus on the applicant to justify the grounds upon which the application is made.

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