Cilli, Luigi Cino v Abbott, John Albert

[1981] FCA 72

Re: LUIGI GINO CILLI
And: JOHN ALBERT ABBOTT (1981) 53 FLR 108
No. NTG 19 of 1980
Justices - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Keely(1), Toohey(1) and Fisher(1) JJ.

CATCHWORDS

Justices - procedure - complaint for offence - costs of successful defendant - general principles - Justices Act (Northern Territory) 1928 s.77(1)

Practice - Justices - Complaint for offence - Costs of successful defendant - Principles to be applied - Justices Act 1928 (N.T.), s. 77(1).

HEADNOTE

The appellant was charged with driving whilst being a disqualified driver. The charge was heard in the court of summary jurisdiction. The Crown tendered a certificate which showed that a person by the appellant's name had been disqualified but did not establish that the appellant was the person therein referred to. The magistrate did not allow the Crown to re-open its case so as to call evidence on the point, and dismissed the charge. The magistrate did not award costs to the appellant. The appellant appealed unsuccessfully to the Supreme Court and thence to the Full Court of the Federal Court. The appeal was directed only to the question of the failure to award costs to the successful defendant (appellant).

Held, that the magistrate's discretion as to awarding costs was to be exercised according to legal principles and not arbitrarily; those principles required the application of the ordinary rule that a successful party is entitled to his costs unless there are reasons why he should be deprived of them.

McEwen v. Siely (1972), 21 FLR 131; Walters v. Owens (1973), 21 FLR 138; Hamdorf v. Riddle, (1971) SASR 398, followed.

Haag v. Underdown (1968), 13 FLR 235, not followed.

HEARING

Darwin, 1981, June 2. #DATE 2:6:1981

APPEAL.

Appeal from the decision of the Supreme Court of the Northern Territory (Gallop J.), dismissing an appeal from the decision of a magistrate in relation to costs.

J. Waters, for the appellant.

J. McMaster, for the respondent.

Solicitors for the appellant: Waters James & O'Neill.

Solicitor for the respondent: G.R. Nicholson, Northern Territory Crown Solicitor.

P.H. MORRISON

Appeal allowed with costs.

JUDGE1

On 9 June 1980 in the Court of Summary Jurisdiction at Darwin, the magistrate dismissed a complaint against the appellant Luigi Gino Cilli of driving a motor vehicle on a public street on 2 December 1979 while disqualified from holding a driving licence.

There was evidence that the appellant was driving a motor vehicle on the day alleged in the complaint and that he was involved in an accident.

The prosecution tendered in evidence, without objection, a certificate from the Deputy Registrar of Motor Vehicles that on the relevant day no driving licence was held by one Luigi Gino Cilli, and also a certificate from the Clerk of the Court of Summary Jurisdiction that on 29 April 1979 one Luigi Gino Cilli was convicted of driving while having a concentration of alcohol in his blood of the amount there set out and that as a result he was disqualified from driving or obtaining a licence for a period of 18 months.

At the conclusion of the prosecution's case, counsel for the defendant announced that his client's case was that he was not driving the vehicle on the day in question and that he would call the defendant. Thereupon, the magistrate asked counsel for the prosecution how she could use the certificate of conviction. The transcript merely notes that at this point there were addresses to the court but it is clear that what the magistrate was questioning was the lack of evidence linking the Luigi Gino Cilli named in the certificate of conviction with the defendant. The prosecution applied to reopen its case to call evidence that the defendant was the person referred to in the certificate. This was opposed by the defendant's counsel and the application was refused by the magistrate. In our view the magistrate may well have been wrong in refusing to allow the prosecution to reopen its case but there was no appeal from that decision. Counsel for the defendant then made a no case submission which was upheld. There is no appeal from the dismissal of a complaint of an offence, Justices Act s.163(1).

The complaint having been dismissed, counsel for the defendant applied for costs in the sum of $250.00 stating that it is "the usual daily rate which is sought on both sides" and a fee of $25 for one witness. The magistrate refused to make an order for costs in favour of the defendant, and the Supreme Court dismissed an appeal from that decision. It is from the Supreme Court's decision that this appeal has been brought.

The magistrate's approach to the matter was to say, in giving his decision, that he had a discretion whether or not to award costs and that he did not propose to rely upon any of the general principles to which he had been referred. He said that as a matter of practice costs were not awarded against defendants who received legal aid but were awarded against defendants who were not wealthy but who did not qualify for legal aid. He said that such a system appeared to him "to be iniquitous". He also said that the "circumstances of the particular case and only the circumstances of the particular case should be taken into account". It is not clear what the magistrate meant by that statement since he did not elaborate.

The Supreme Court approached the matter on the basis that the real question was whether the prosecution was likely to fail in any event. If it appeared that it would have failed, then it was the sort of prosecution that should never have been instituted and a court of summary jurisdiction should more readily award costs to a successful defendant. But, said his Honour, where the institution of the proceedings was justified and where there were factors which the magistrate had properly taken into account, the Supreme Court should not interfere in the exercise of that discretion. His Honour dismissed the appeal.

The magistrate undoubtedly had a discretion in the matter, although it was a discretion to be exercised according to legal principles and not arbitrarily. The difficulty lies in discerning the principles upon which the magistrate proceeded and in determining those factors which his Honour though the magistrate had properly taken into account.

Section 77(1) of the Justices Act provides that when a court of summary jurisdiction makes a conviction, it may "if it thinks fit" require the defendant to pay such costs as the court thinks just and reasonable, and in the case of dismissal that the complainant pay such costs to the defendant.

In Walters v. Owens (1973) 21 F.L.R. 138, Forster J. (now Chief Justice) upheld an appeal by a successful defendant in a traffic prosecution from the refusal of a magistrate to award costs in her favour. His Honour upheld the appeal on this ground:
"A successful complainant normally has costs awarded in his favour and the fact that the onus of proof is harder for the complainant in criminal proceedings seems to me little to the point. The judgment in Hamdorf v. Riddle says expressly that the judges consider that the discretion as to costs in courts of summary jurisdiction should be exercised in the same way as it is exercised in civil actions." (at p.140)
Hamdorf v. Riddle (1971) S.A.S.R. 398 was a decision of the Full Court of the Supreme Court of South Australia which expressed the principles applicable in the case of complaints in courts of summary jurisdiction to be those operating in the trial of a civil action, with no distinction to be drawn between complaints made by police officers and complaints made by others. That decision should be followed in preference to Haag v. Underdown (1968) 13 F.L.R. 235, a decision of the Supreme Court of the Northern Territory holding that as a general rule costs should not be awarded against a police officer prosecuting a complaint in the ordinary course of his duty unless he or those instructing him should have known better than to lay the complaint or to proceed with it.

In McEwen v. Siely (1972) 21 F.L.R. 131, a decision of Fox, Blackburn and Connor JJ. in the Supreme Court of the Australian Capital Territory, the court expressed the general principle in these terms:
"From what we have said in the discussion of the authorities, it will be apparent that we think that generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award him costs." (at p.136)

In the present appeal counsel for the respondent accepted this statement of principle but sought to uphold the magistrate's departure from the general rule by reference only to a consideration which was said to make it unjust to award the defendant his costs. That consideration was the failure of the magistrate to allow the complainant to reopen his case to link the defendant with the person named in the certificate of conviction.

In our view that was not a sufficient reason for departing from the general rule. There was no appeal from the magistrate's decision refusing to allow the complainant to reopen his case and this court must approach the matter on the footing that the complaint was dismissed because of a failure to establish an essential element. That being so, we see no injustice in allowing the defendant his costs.

An award of costs may well bear hard upon the person against whom the order is made, although in the case of police officers it would be an unusual situation where those costs were not met by the Crown. But the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings.

Many of the difficulties associated with costs in courts of summary jurisdiction are resolved by the implementation of a system whereby the costs of successful defendants may be met from a fund, a system which exists in some other jurisdictions. But this appeal has to be decided according to generally accepted principles. While the magistrate had a discretion, those principles required him to apply the ordinary rule that a successful party is entitled to his costs unless there are reasons why he should be deprived of them.

In our view this appeal should be allowed and an order made that the respondent pay the costs of the appellant in the court of summary jurisdiction (agreed before us at $275.00 including a witness fee) as well as the costs of the appeal before the Supreme Court and the costs of this appeal.