Bilaczenko v Police No. Scciv-03-1109

[2003] SASC 334

BILACZENKO v POLICE
[2003] SASC 334

Magistrates Appeal:  Criminal (ex tempore)

1. MULLIGHAN J                 The appellant was charged on complaint with exceeding the speed limit, in that on 6 September 2000 at Brompton he drove a motor vehicle in excess of the speed limit of 40 kilometres an hour as indicated on a speed limit sign, contrary to rule 20 of the Australian Road Rules and s79B of the Road Traffic Act 1961.

2. At all times the appellant was without legal representation. He pleaded not guilty and after many adjournments the complaint came to trial. He represented himself and had the assistance of a friend. After hearing evidence the learned Magistrate dismissed the charge. He made an application for costs and she ordered the respondent to pay his costs which she fixed at $200.

3. The appellant has appeared in person before me and has made it clear that although he succeeded at the trial, he wants to expose what he regards as, in effect, an illegality in the prosecution of charges of this nature based upon irregularities in the alleged fixing of the speed limit of 40 kilometres an hour.

4. I have explained to him that the appeal is not competent. There must be a live issue to be resolved in any litigation of this nature and no such issue exists. The appellant won his case and there is no basis in law upon which it can be re-opened by him. All that is left is his appeal against the amount of the order for costs that was awarded to him.

5. The trial occupied a period of approximately an hour and a half. It may appear that an order in those circumstances of $200 is a large amount. The appellant was not in paid employment. He received at all relevant times a Centrelink pension and it must be accepted that he incurred some out-of-pocket expenses, in getting to and from court, preparing appropriate documents from time to time and obtaining copies of them. That seems to be the basis upon which the order for costs was made.

6. Against that, he appeared before magistrates on two occasions seeking summonses to witnesses to be issued by the court. On both occasions his application was refused. He appealed to this Court and the appeal was heard by Williams J and dismissed. No application was made by the police, the respondent, for costs of that appeal or, indeed, for the costs of the applications before the two magistrates.

7. Costs must be awarded on a fair basis and usually, in a case of this nature, follow the event. The amount of costs to be awarded seldom can be assessed with accuracy.

8. The learned Magistrate fixed upon a sum which she thought, in all the circumstances of the case, was fair and reasonable. The appellant informed me that although he did not have particulars of these expenses with him at Court, he estimates that his expenses, including those relating to his previous appeal to this Court, amount to something like $380.

9. What must be done now is to ensure that on the issue of costs the order which has been made is fair and just. I accept, for the purposes of this hearing, that the appellant’s estimate is about correct and that he has probably spent something in the order of about $380. But part of that amount is the cost of filing appeals in this Court, of taking out the applications for the issue of the summons to witnesses and, of course, the time spent by the appellant in preparing for that appeal, attending and presenting his arguments.

10. The police were entitled to an order for costs of that appeal and, as I say, did not seek an order. Today the appeal against the judgment of the learned Magistrate on the charge cannot proceed for the reasons that I have mentioned and the respondent, is entitled to an order for costs of that matter. The respondent does not press a claim for costs and that is a matter which must be taken into account in reaching a fair and just decision.

11. In my view, there is no basis to interfere with the exercise of the discretion of the magistrate in fixing the amount of costs at $200. The appeal must be dismissed.