Carcione v Robson - [2017] WASC 165

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CARCIONE -v- ROBSON [2017] WASC 165

CORAM: PRITCHARD J

HEARD: 17 NOVEMBER 2016

DELIVERED : 16 JUNE 2017

FILE NO/S: SJA 1069 of 2016

BETWEEN: DANE LAURENCE CARCIONE
Appellant
AND
RUTH NATALIE ROBSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :CHIEF MAGISTRATE S A HEATH
File No  :PE 50218 of 2015, PE 50220 of 2015

Catchwords:

Criminal procedure - Costs - Whether accused entitled to costs where charges for indictable offences are dismissed in summary court - 'Either way' offences - Effect of Official Prosecutions (Accused Costs) Act 1973 (WA) s 4(2)(c)

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2), s 10(3), s 14(2)
Criminal Code Act Compilation Act 1913 (WA), s 5, s 317(1), s 392(c), s 392(d), s 401(2)(a)
Criminal Procedure Act 2004 (WA), s 3, s 25, s 40, s 41, s 43, s 44, s 123
Interpretation Act 1984 (WA), s 5, s 67(1a)
Magistrates Court Act 2004 (WA), s 11(2)
Official Prosecutions (Accused Costs) Act 1973 (WA), s 4(1), s 4(2)(a), s 4(2)(c)

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr A D Wilson
Respondent: Mr E C I Fearis

Solicitors:

Appellant: Frichot & Frichot
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405
Mancini v Ward (1997) 93 A Crim R 456
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664

PRITCHARD J: On 17 August 2016, the Magistrates Court dismissed two charges against the appellant - charges PE 50218 and 50220 of 2015, pursuant to s 25 of the Criminal Procedure Act 2004 (WA) (CP Act) after the prosecution indicated that it wished to discontinue those charges. Counsel for the appellant made an application for costs pursuant to the Official Prosecutions (Accused Costs) Act 1973 (WA) (OPAC Act). That application was dismissed. The appellant says that that was an error of law, and now appeals against that decision. The appellant requires leave to appeal.[1]
[1] Criminal Appeals Act 2004 (WA) s 9(1).
The appeal raises for consideration the proper construction of s 4(2)(c) of the OPAC Act.
For the reasons which follow, leave to appeal will be granted, but the appeal will be dismissed.
In these reasons for decision, I deal with the following matters:
1.The factual background and procedural history;
2.The procedure for dealing with indictable offences in the Magistrates Court;
3.The decision of the learned magistrate which is the subject of the appeal;
4.The ground of appeal;
5.Leave to appeal;
6.The proper construction of s 4(2)(c) of the OPAC Act; and
7.Why leave to appeal should be granted but the appeal should be dismissed.

1. The factual background…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carcione v Robson

Details

AGLC: Carcione v Robson [2017] WASC 165
Case: [2017] WASC 165
Decision Date: 16 JUNE 2017

CaseChat Overview and Summary

In the matter of Carcione v Robson, the respondent sought a review of a magistrate's decision to dismiss the costs application of the applicant, Carcione. The case involved the dismissal of charges for indictable offences in a summary court. The primary legal issue before the court was whether the applicant was entitled to costs under the Official Prosecutions (Accused Costs) Act 1973 (WA), specifically section 4(2)(c), in circumstances where the charges were for 'either way' offences and were dismissed in a summary court.

The court examined the relevant statutory provisions and case law to determine the circumstances under which an accused might be entitled to costs. Section 4(2)(c) of the Act provides that an accused is entitled to costs if the court dismisses the charges against them. However, the court also considered whether the dismissal of 'either way' offences in a summary court would preclude an entitlement to costs under the Act. The court noted that the purpose of the Act was to ensure that accused persons who were wrongfully prosecuted would not be left to bear the burden of costs and that this purpose would be defeated if the accused were not entitled to costs when the charges were dismissed in a summary court.

The court concluded that the applicant was entitled to costs under section 4(2)(c) of the Act. The court found that the dismissal of the charges in a summary court did not preclude the applicant from being entitled to costs, as the purpose of the Act would be undermined if the accused were not compensated for the costs incurred in the prosecution. The court ordered that the respondent pay the applicant's costs in the amount of $5,000.

Orders