Appeal of Joel Waller and Michael Hayes

[2007] NSWDC 349

CITATION:	Appeal of Joel Waller and Michael Hayes [2007] NSWDC 349
HEARING DATE(S):	3 December 2007
JUDGMENT DATE:	3 December 2007
JURISDICTION:	District Court of NSW
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Appeal dismissed.
CATCHWORDS:	Criminal law - Costs - Appeal to District Court from Magistrate's refusal to award costs to successful defendants
LEGISLATION CITED:	ss 3, 11, 20, 28(3), 56 Crimes (Appeal and Review) Act 2001 s 104(2)(c) Justices Act 1902 Criminal Appeal Act 1912
CASES CITED:	Palmer v Haddad [2000] NSWSC 545 Murdoch v Petterson [2005] NSWSC 1359 Director of Public Prosecutions v Roslyndale Shipping Pty Limited (2003) 59 NSWLR 210
PARTIES:	Regina Joel Waller Michael Hayes
FILE NUMBER(S):	07/22/1258; 07/22/1248
SOLICITORS:	Mr Weller for the Appellants Mr Musico for the Respondent Prosecutor

JUDGMENT

1. Two young men were charged with not wearing seat belts. As it happened the police issued the Court Attendance Notices to the wrong persons. Hence the young men both had good defences. They went to the Local Court and defended the prosecution. In each case they were both acquitted. They both sought costs against the prosecutor and the Magistrate refused in each case to make an order for costs.

2. Both men appeal to this court under s 11 of the Crimes (Appeal and Review) Act 2001. Their appeals both raise the same point. Their appeals are against the refusal of the learned Magistrate to award them costs.

3. Mr Weller who appears for both appellants in this court argues that they have a right of appeal against the Magistrate’s order to refuse costs. He says that right arises from the fact that they are appeals under s 11(1) against a “sentence” by a Local Court. He refers to the extended definition of “sentence” contained in s 3 of the Crimes (Appeal and Review) Act. In that extended definition clause (e) provides that “sentence” means as follows:

“ (e) any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person. ”


In a nutshell Mr Weller’s argument is that the learned Magistrate’s refusal to make an order for costs amounted to an order for costs.

4. Mr Musico, who appears for the prosecutor and respondent to these appeals, argues that a refusal to make an order for costs does not fall within clause (e) of the definition of “sentence”. There is, he said, no other provision which entitles the appellants to appeal to this court and therefore the Crimes (Appeal and Review) Act provides them with no right of appeal.

5. Hence the question for my determination is whether a refusal by a Magistrate to make an order for costs sought by a successful defendant amounts to an “ order for costs made by a Local Court against a person ” in accordance with clause (e) of the definition of “sentence” in the Crimes (Appeal and Review) Act .

6. For the following reasons, in my opinion the language of the section does not include a refusal by the Magistrate to make an order for costs. The first reason is that I reject Mr Weller’s argument that Palmer v Haddad [2000] NSWSC 545 is applicable to this case. It is a sound argument and the case does point towards a favourable result for Mr Weller but, in my opinion, the case is distinguishable. It was a judgment of Simpson J in a case where her Honour was hearing an appeal from a refusal of a Magistrate to order costs in favour of a successful plaintiff in a claim under the De Facto Relationships Act 1984 . One of the bases for the appeal was an asserted remedy under the Justices Act 1902 , specifically s104(2)(c). That provided for appeals by informants and an informant was entitled to appeal against “ orders for costs made by Magistrates in summary proceedings ”.

7. Her Honour said at [11] that she favoured an interpretation of that clause which meant that “ orders for costs ” should encompass “ an order in relation to costs ”. That would include, her Honour said, an order refusing an application for costs.

8. The first reason given by her Honour is not applicable to this case. The proceedings were in the nature of civil proceedings whereas the Justice’s Act was focused on criminal proceedings. As her Honour said, amendments to the Justice’s Act over the years have not accommodated the expanding civil jurisdiction of the Local Court despite civil proceedings coming within its ambit. Her Honour was therefore construing a criminal statute with that in mind.

9. The second reason and more fundamental one given by her Honour was that a narrow interpretation would have the result of
“ attributing to the legislature an intention to create unbalanced rights for no apparent principled reason. An informant against whom an order for costs is made would have a right of appeal, but an informant who unsuccessfully sought a costs order would not. Such a capricious intention should not be attributed to the legislature unless the clear words of the legislation so demand. In my view they do not. ”


10. For reasons which I will develop, in my opinion the clear words of the legislation in this case demand a result which is unfavourable to Mr Weller.

11. Palmer v Haddad was referred to by Grove J in Murdoch v Petterson [2005] NSW SC 1359. In that case a successful prosecutor appealed against a refusal by a Magistrate to order costs in its favour or his or her favour. The appeal was brought under the legislation which is the subject of consideration in this case. Section 56(1) of the legislation relevantly provided at the time that the prosecutor
“ may appeal to the Supreme Court against:

(a) a sentence imposed in any summary proceedings, or

(e) an order for costs made by a Local Court against the prosecutor in any summary proceedings. ”

As his Honour said, the issue must be determined in the context of the relevant legislation. His Honour referred to the extended definition of “sentence” which is also relevant to this case. His Honour referred to specifically to the same clause, namely (e) in the definition of “sentence”, which is the subject of this case. His Honour said at [11]:

“ The express element of definition in sub-paragraph (e) refers to an order against a person and the refusal to order that person to pay costs is not accommodated within the notion of costs against him or her. ”


12. I respectfully agree with his Honour and for the same reasons do not regard the refusal to make a costs order in this case as amounting to an order for costs against a person. As his Honour went on to say, in its natural and ordinary meaning order does not encompass a refusal to make an order: see [12].

13. His Honour acknowledged Simpson J’s judgment in Palmer v Haddad but distinguished that case for the reason that the statutory context of any such decision is of considerable significance. One reason supporting his Honour’s opinion was that he did not regard a definition of sentence which accommodated or allowed an appeal by a prosecutor as being

“ compatible with a concept that a sentence involves an imposition on a defendant. and it would, in my view, require a clear statement for the expression ‘a sentence imposed’ within a statute to include a meaning of denial of an order for costs in favour of a prosecutor. ”

That is a factor which is not relevant in the present case.
14. Which brings me to the third reason for my judgment or rather for my reasons for dismissing the appeal which is the judgment of the Court of Criminal Appeal in Director of Public Prosecutions v Roslyndale Shipping Pty Limited which is reported in (2003) 59 NSWLR 210. Spigelman CJ delivered a judgment in which Studdart J specifically agreed. The case concerned the issue whether a refusal to make a costs order could be the basis of an appeal to the Court of Criminal Appeal. In order for it to be accommodated a refusal to make a costs order had to be included in the definition of “ sentence ” in the Criminal Appeal Act 1912 , which in s 2 defines sentence to include
“ (h) any order for payment of costs made by the court of trial in respect of a person. ”

15. The Chief Justice distinguished Simpson J’s judgment in Palmer v Haddad because of the significance of the word “ payment ” included in the definition of sentence in the Criminal Appeal Act . The Chief Justice also acknowledged that in its natural and ordinary meaning the word “ order ” would not encompass a refusal to make an order. But his Honour acknowledged that that natural and ordinary meaning could be displaced by the context after a careful examination of the statutory context relevant in that case. His Honour concluded that the natural and ordinary meaning of the word “ order ” should be applied. In doing so his Honour made reference to a statutory provision relevant in the discussion in that case which was s 5AA(1) of the Criminal Appeal Act which provided that person (a) convicted of an offence; or (b) against whom an order to pay any costs is made, may appeal.

16. For reasons which are not directly relevant to this appeal his Honour took into account the language of s 5AA in construing s 2(h) of the Criminal Appeal Act . His Honour said the reference to “ payment of costs ” in s 2(h) is reinforced by the terminology in s 5AA “ against whom an order to pay any costs is made ”. The Chief Justice said that a
“ failure to make an order does not fall naturally within the word ‘payment’ nor within the idea of an order being ‘made’ ‘against’ a person .”

17. I too am of the same view so far as the definition of “ sentence ” contained in s3 of Crimes (Appeal and Review) Act is concerned, so far as that definition provides that it may include “ any order for costs made by a Local Court against a person ”. The failure to make an order does not fall naturally within the idea of an order being “made” “against” a person. I acknowledge Mr Weller’s argument that as Simpson J said the result may mean that a person has a right to appeal against an order for costs against them, but not a refusal. But in my opinion the clear language of the statute does not allow me any other interpretation.

18. Accordingly, I determine this appeal against sentence by dismissing the appeal in accordance with s 20(2)(c) of the Crimes Appeal and Review Act 2001 .

MUSICO: Your Honour the prosecutor applies for a costs order under s 28(3).

HIS HONOUR: Of the same Act?

MUSICO: Of the Crimes (Appeal and Review) Act 2001.

HIS HONOUR: Just let me have a look, 28?

MUSICO: Subs 3 your Honour, the miscellaneous powers provision of the Act concerning this court’s powers.

HIS HONOUR: Right subject to s 70.

MUSICO: s 70 is the equivalent of s 214 your Honour.

HIS HONOUR: Costs against the prosecutor. All right, so you’re wanting costs.

MUSICO: If your Honour’s agreeable I would ask your Honour to quantify costs at approximately $1600 which would provide sufficient indemnity for my seven hours attendance at court today, travelling to and from the city. A $200 agent fee for the last occasion this matter was before the court and it was adjourned and say an hour of my attendances in reading the file and advising my client. Furthermore if your Honour agrees with that submission then under s 72 of the Act which determines where costs or discusses a frame with the order, I would submit that under s 72 your Honour order that each appellant pay $800 costs to the Windsor Local Court within say twenty-eight days.

HIS HONOUR: What do you say Mr Weller?

WELLER: Well your Honour I’m instructed to oppose an application for costs. I don’t dispute that my friend is entitled to make the application but we oppose it and on discretionary grounds and ask your Honour not to impose an order for costs against the appellants. Having regard to the circumstances of how this appeal came about, that is I mentioned it to your Honour in my original address that prima facie these appellants were entitled to an order for costs. The fact that the appeal has been brought in the wrong place, I would submit your Honour, is not a matter that should be placed as a burden upon these appellants.

HIS HONOUR: Who had an arguable case.

WELLER: Yes we did have an arguable case and your Honour I think mentioned that at least once, if not twice in your Honour’s judgment.

HIS HONOUR: The normal thing if I dismiss an appeal, conviction or sentence appeal by an offender I don’t make an order for costs do I?

WELLER: In thirty years your Honour I’ve never seen one. It’s different if there’s a private, it can be different if there’s a private prosecution involving private parties, but I’ve never seen one.

HIS HONOUR: So these appeals are normally run by a solicitor employed by the DPP office aren’t they and Mr Musico is here from the Crown Solicitor’s Office I assume.

MUSICO: That’s correct your Honour.

HIS HONOUR: Mr Musico why, I mean normally I wouldn’t order costs against an unsuccessful appellant in a conviction or sentence appeal particularly, I say, in this case where there was a pretty good argument and we’ve had to delve into the authorities. Why should I in this case, particularly given the history where it sounds as though the police messed it up in the first place. They took the point, they won, they asked for costs.

MUSICO: Without a transcript your Honour I can’t comment on the correctness of the Windsor Local Court Magistrate’s decision. But your Honour as that earlier case I cited, Farley and Sterling states there was an avenue of redress against the Magistrate’s decision, it wasn’t to this court it was an application to the Supreme Court for prerogative relief under s 69 of the Supreme Court Act and your Honour it was clearly parliament’s intention that costs can be awarded in Local Court appeals to the District Court, I’ve referred your Honour to s 28(3) the preceding section states “ that in determining an appeal the District Court may exercise any function that the original Local Court could have exercised .” Costs, there’s two provisions.

HIS HONOUR: You’re right, I can see the power there.

MUSICO: And s 70 your Honour deals with a successful accused’s right to costs.

HIS HONOUR: Yes, yes.

MUSICO: So there’s plenty of costs provisions on both sides of the fence in this Act and I’d submit, using the words of s 28(3)it would be just for your Honour to award costs because this case could have been commenced in the Supreme Court.
HIS HONOUR: All right.
19. Mr Musico for his client has sought costs I refuse that application. I acknowledge my power to award it in circumstances that I think are just in accordance with s 28(3) of the Crimes Appeal and Review Act 2001 . Two factors influence me here. The first is that the appellants were originally successful in the Local Court as a result of, apparently, some mix up, perhaps incompetence, I cannot say, in the issuing of the process. The second factor is that although they have an avenue of address elsewhere in the Supreme Court, as pointed out by Mr Musico, they had an arguable case in this court which required my attention for an hour or so in court with counsel and then additional time in chambers considering two Supreme Court and one Court of Criminal Appeal authority before I reached a conclusion. Accordingly I refuse the application for costs.

oOo