Alkaisi v WA Police
[2024] WASC 511 (S)
•10 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: ALKAISI -v- WA POLICE [2024] WASC 511 (S)
CORAM: FORRESTER J
HEARD: ON THE PAPERS
DELIVERED : 10 FEBRUARY 2025
FILE NO/S: SJA 1047 of 2024
BETWEEN: ALIA ABDUL-HASSAN ABDUL-JALIL ALKAISI
Appellant
AND
WA POLICE
Respondent
ON APPEAL FROM:
For File No: SJA 1047 of 2024
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE B TYERS
File Number : EX 62 of 2023
Catchwords:
Single judge appeal - Costs of trial where convicted appellant successful on appeal - No new principles
Legislation:
Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA)
Legal Profession Uniform Law Application Act 2022 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA)
Result:
Respondent ordered to pay appellant’s costs in the sum of $132.10
Category: B
Representation:
Counsel:
| Appellant | : | No appearance |
| Respondent | : | Ms A Kildea |
Solicitors:
| Appellant | : | In Person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182
Hunter v City of Joondalup [2016] WASC 444 (S)
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
FORRESTER J:
Background
On 17 December 2024, I allowed the appellant's appeal against conviction and set aside the appellant's conviction and sentence, and the costs order made against her in the Magistrates Court proceedings.
The appellant was self‑represented at her trial and the appeal, but nonetheless sought an order for costs in her favour as a result of the decision.
On the basis that the appellant might have been able to substantiate an application to recover some of her costs of the proceedings and her appeal, namely disbursements, I ordered that the parties file any affidavit material and written submissions, and that the application would then be dealt with on the papers.
Affidavit and materials filed by appellant
The appellant has filed:
(a)an invoice showing that she was charged disbursements by the Department of Justice in relation to this matter, being for copies of the transcript and documents in the sum of $132.10;
(b)invoices from the Department of Justice for copies of documents in matters other than this matter;
(c)an Officeworks receipt for file covers in the sum of $59.18;
(d)an invoice for the printing of 400 pages dated 12 October 2023, totalling $120;[1]
(e)a further invoice for printing dated 14 April 2023 for $18.37;[2]
(f)a table which lists work she has claimed to have done between 19 May 2023 and 24 November 2024, and how long she spent doing that work, totalling approximately 240 hours (in her written submissions she claims 370 hours);
(g)screenshots of a banking application, showing expenditure on various items, including rideshare expenses and payments to the Department of Justice;[3]
(h)a number of documents generated by the Western Australia Police Force (WA Police) relating to other incidents involving police, which are unrelated to the charge which was the subject of the appeal;
(i)various documents relating to housing and Centrelink; and
(j)information as to the appellant's mental health.
[1] There is no information as to what was printed.
[2] The appellant was charged with the offence on 27 April 2023, so this was before the appellant was charged.
[3] The appellant has not explained how they relate to these proceedings.
Despite the limits of the application being outlined to the appellant at the hearing of her appeal, by her written submissions the appellant sought 'reimbursement for the significant time, effort and expenses' she has incurred in managing and preparing her defence and appeal, and further sought 'compensation for the profound impact' the suspension of her driver's licence had on her life.
In her submissions, the appellant also sought to re‑litigate previous matters involving WA Police, as well as the matter which was before me, and sought an injunction preventing WA Police from conducting preliminary roadside drug testing without 'documented reasonable cause' and associated orders.
Those matters are outside the scope of the appeal and the application for costs, and I decline to address them.
Application for costs
The power to award costs is statutory.[4]
[4] Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 193 (Dawson J) and Edmunds v Starling [2013] WASCA 225; (2013) 235 A Crim R 182 [10].
In support of her application for costs, the appellant cited and purported to quote 'Section 280' of the Criminal Procedure Act 2004 (WA) (CPA), a provision which does not exist. She also sought to rely upon other statutory provisions which do not exist in Western Australia.
The starting point for the appellant's application for costs is s 14(1)(h) of the Criminal Appeals Act 2004 (WA), which provides that, in deciding an appeal, the court may make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
Section 67(1) of the CPA provides that a successful party to a prosecution is entitled to the party's costs, subject to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Official Prosecutions Act).
An accused whose conviction of a charge is set aside is 'successful' within the meaning of s 4(2)(iv) of the Official Prosecutions Act, and, pursuant to s 5(1) and s 5(4), is therefore entitled to their costs of the appeal and in the summary court.
Pursuant to s 4 of the Official Prosecutions Act:
costs means any expenses that —
(a)are properly incurred by an accused in an official prosecution; and
(b)are due and payable, or paid, by the accused to another person or as court fees;
Pursuant to s 5(5), costs shall be in accordance with the scale fixed from time to time by a legal costs determination made under s 133 of the Legal Profession Uniform Law Application Act 2022 (WA). In this case, the relevant scales are the Official Prosecutions (Accused's Costs) Scale of Costs 2024 (2024 Scale) and, in relation to any costs incurred prior to 1 July 2024, the Official Prosecutions (Accused's Costs) Scale of Costs 2022.
When s 5(5) is considered in combination with the definition of costs, an accused's entitlement to costs is confined to money paid or liabilities incurred for professional legal services, and for payments to witnesses. An in person litigant is not entitled to compensation for time spent in conducting his or her case.[5]
[5] Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410 - 411; Hunter v City of Joondalup [2016] WASC 444 (S) [8].
The appellant claimed that she was entitled to claim costs on the basis that she was a witness in the proceedings. It is to be observed that the appellant did not limit her claim for witness costs to the time she spent giving evidence.
The appellant also claimed, in her submissions, 'expert witness and administrative expenses of $500'. No documents were lodged to substantiate this claim.
Clause 4 of the Legal Profession (Official Prosecutions) (Accused's Costs) Report 2024 relevantly states:
(f)The Legal Costs Committee considers that it is impossible to include an item for witness fees because of the wide range of occupations of witnesses who are called to give evidence. Witness fees should be allowed as a disbursement and at the discretion of the Court or the taxing officer but loss of earnings by a witness or the accused are not intended to be recoverable.
(g) The recommendation of the Legal Costs Committee in sub clause (f) is not intended to affect the generality of item 8 of the scale of costs set out in Table C of the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2024.
It is plain from the report that it was also not intended that an hourly charge for time spent by a civilian witness preparing for and attending court would be recoverable as a disbursement.
I refuse the application by the appellant for costs to be payable to her in respect of her time preparing for and attending court hearings in this matter.
As to other potential witness allowances, Item 8 of the 2024 Scale provides for copying at $0.20 a page and provides examples of disbursements, including transport, accommodation, meals and travel costs of a witness actually incurred by an accused as a necessary incident to defending an official prosecution which may be allowed as necessarily or reasonably incurred (emphasis added).
The appellant did not supply any invoices or any substantiation of her claims as to her claims for witness expenses. There is no evidence of the costs she actually incurred in this regard.
In the absence of such evidence, I decline to make an order for payment of any disbursements for witness allowances.
The amount sought by the appellant in her written submissions for other disbursements substantially exceeds the amounts established by invoices adduced by the appellant. Further, there are no filing fees associated with appeals to a single judge of the Supreme Court.
I am not prepared to accept any claim for disbursement which is unsupported by an invoice.
On that basis, the only substantiated disbursement actually incurred by the appellant is the sum of $132.10, being the fee for the transcript in this matter.
Accordingly, I will make an order that costs be payable to the appellant in the sum of $132.10.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CA
Associate to the Honourable Justice Forrester
17 MARCH 2025
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