Coleman and Wholgemuth v Harper
[1992] TASSC 82
•20 May 1992
Serial No 30/1992
List “A”
CITATION: Coleman and Wholgemuth v Harper [1992] TASSC 82; A30/1992
PARTIES: COLEMAN
WHOLGEMUTH
v
HARPER
TITLE OF COURT: SUPREME COURT OF TASMANIA
FILE NO/S: LCA 136/1991
HEARING DATE: 20 May 1992
JUDGMENT OF: Underwood J
Judgment Number: A30/1992
Number of paragraphs: 25
Serial No 30/1992
List "A"
File No LCA 20/1991
REASONS FOR JUDGMENT UNDERWOOD J
20 May 1992
COLEMAN and WHOLGEMUTH v. HARPER
Costs – Costs in Criminal Cases Act 1976, s.4 – The nature of the discretion – Latoudis v. Casey (1990) 97 A.L.R. 45 considered – R. v. Freshney [1977] Tas.S.R. 126 and Bradley v. Lawson [1978] Tas.S.R. 213 followed.
This is a motion to review a magistrate‘s order dismissing an application for costs made pursuant to the Justices Act 1959, s.77(2) and the Costs in Criminal Cases Act 1976, s.4. Senior counsel for the applicants submitted that the motion raised the question whether two earlier decisions of this Court remain good law since the decision of the High Court in Latoudis v. Casey (1990) 97 A.L.R. 45 and that accordingly, I should reserve the motion to the Full Court pursuant to the Justices Act, s.110(1).
On 19 July 1990, the applicants and another were jointly charged with cutting or sawing, from a State forest, forest produce, namely, Celery Top Pine, contrary to the provisions of the Forestry Act 1920, s.45(1)(a). The prima facie duplicity in the complaint was not raised either in the court below or on the hearing of the motion.
On the first appearance in a court of petty sessions, the matter of complaint was adjourned to 17 August 1990. According to an affidavit later put before the learned magistrate, on that day, the proceedings were again adjourned this time, in order to take a plea from the three defendants. According to the record of proceedings in the court below the date on which the plea was to be taken was 3 October 1990. The affidavit deposes that it was 31 October. The difference is immaterial. At the appearance in October, the applicants pleaded not guilty but their co–defendant, one Anders Thiele, pleaded guilty. The proceedings against the applicants were adjourned to 5 March 1991, for hearing .
Prior to the appearance in October 1990, the Director of Legal Aid, acting for all three defendants, sought particulars of the complaint and inquired if the Forestry Commission was prepared to exercise its powers under s.45(2) to discontinue the proceedings. On 2 October 1990, the prosecutor wrote giving the particulars sought and advising that the Forestry Commission would not discontinue the proceedings. Two days later, the Director of Legal Aid wrote seeking even more particulars. The letter also sought “further details as to the nature of the participation by the parties in the harvesting of forest produce” and reasons for the Forestry Commission declining to exercise its discretion to discontinue the proceedings. The requested particulars and reasons were given by letter dated 30 October 1990 but the “further details” were not supplied.
On 5 March 1991 the hearing was adjourned to 5 August 1991 upon the unopposed request of the prosecution. On the latter date, no evidence was tendered in support of the complaint and it was dismissed. In his affidavit, read on the hearing of the motion, Mr. Roland Browne, solicitor in the office of the Legal Aid Commission, and junior counsel on the hearing of this motion, said that he appeared for the applicants on 5 August 1991. Following the order of dismissal, Mr. Browne inquired “through” the learned magistrate why the prosecution was not proceeding. The learned magistrate, quite properly, said that it was a matter for the prosecution and that Mr. Browne had no right to see the police file. I interpolate that the learned magistrate’s failure to permit or require an explanation by the prosecution for not proceeding with the prosecution was a ground of appeal. It was abandoned during the course of argument. It would appear that Mr. Roland Browne then made an application that the complainant pay the defendants‘ costs of the proceedings. This application was adjourned until 10 September 1991 for determination. Each applicant filed an affidavit in the Court of Petty Sessions.
On 10 September 1991, the complainant appeared by his solicitor. She made a preliminary submission that the application for costs could not succeed because of certain provisions in the Costs in Criminal Cases Act and the Legal Aid Commission Act. The learned magistrate reserved his decision on the preliminary submission until 15 October 1991 when he dismissed it. The hearing was adjourned again. It resumed on 19 November 1991, exactly sixteen months after the complaint was lodged. At the conclusion of the hearing on 19 November 1991 the learned magistrate reserved his decision. On 12 December 1991, he dismissed the application with written reasons. A notice to review this decision, containing ten grounds, was filed on Christmas Eve 1991. Prior to the hearing, notice of intention to amend the grounds was given and, at the commencement of the hearing, the grounds were amended in accordance with that notice. Five of the original grounds were abandoned but new grounds brought the number to eight. Yet a further ground was added during the course of the hearing of the motion. Notwithstanding the multiplicity of grounds, all, excluding those abandoned during the course of argument, can be summarised as follows:
1. In the exercise of his discretion the learned magistrate made two specific errors namely:
(a) he misdirected himself with respect to the law by applying the principles set out in R. v. Freshney [1977] Tas.S.R. 126.
(b) “there was evidence before him which was uncontradicted and did not involve him in exercising a discretion to accept or reject, upon which evidence he was entitled to hold that the application succeed but of which he took no account.” ([Sic] – Ground 9 of the motion to review).
2. No magistrate, properly instructed as to the law and acting reasonably, could have exercised his discretion to reject the applicants’ application for costs.
In his affidavit, the applicant William Coleman, deposed that on 27 May 1990, he was assisting a co–defednant, one Thiele, to saw some planks of timber. “I believed that Thiele was in possession of a licence to take such timber, and was assisting him.” The affidavit proceeds:
“2. I was not going to keep the timber. The timber was for the use of Thiele.
2A. I was assisting Thiele for a couple of hours, when Martin Wholgemuth came along. He had a utility vehicle, and it was more convenient to take the planks of timber out on the utility rather than in the vehicle belonging to Thiele.
3. An officer of the Forestry Commission came along and asked Wholgemuth and I if we had a licence to take the timber. We both suggested he speak to Thiele, who at this time was some short distance up the road.
4. To our astonishment, Thiele did not have a licence. Wholgemuth exclaimed sarcastically ‘nice one’ to Thiele. We both told Richards [Forestry Commission Officer] that we thought Thiele had a licence to saw the timber.”
In his affidavit the applicant Martin Wholgemuth deposed:
“1. On 27 May, 1990 I was driving my flat tray vehicle in the area of North Duckhole Spur. I came upon Anders Thiele and William Coleman. Although I did not expect to find them at this location, I knew that it was likely that they would be collecting some timber in the area. We had had a brief discussion the night before. I had indicated that I was unlikely to assist them to collect the timber unless I was in the area.
2. Thiele had a Kombi van. As I had a flat tray, I said I would assist them to take the timber from the area. I believed that Thiele was in possession of a licence to take the timber. I was certainly not going to keep any of the timber. It was for the use of Thiele. That was always my understanding and belief.
3. An officer of the Forestry Commission came along and asked Coleman and I if we had a licence to take the timber. We both suggested he speak to Thiele, who at this time was some short distance up the road.
4. To my astonishment, Thiele did not have a licence. I exclaimed sarcastically, ‘nice one’ to Thiele. I told the Forestry Officer, Mr. Richards, that I thought Thiele had a licence to saw the timber. Thiele had, to my knowledge, always had a licence when he collected timber.”
On the hearing of this motion I was pressed with the argument that from the foregoing material, the applicant Wholgemuth could not have been convicted as a principal offender but only as an accessory. It was submitted that an accessory could not be convicted unless it was established that he knew of the existence of all the ingredients which go to make up the offence charged, including in the present case, that the principal offender did not have the appropriate licence to take the timber. See Giorgianni v. The Queen (1985) 58 A.L.R. 641. Thus, it was submitted, that upon the material before him the only conclusion open to the learned magistrate was that the prosecution against the applicant Wholgemuth was doomed to failure in any event. A careful reading of the paragraphs extracted above from the applicant Wholgemuth‘s affidavit shows that he does not state what he was doing with respect to the forest produce. It can be inferred that he was proposing to transport the sawn timber from the area on his flat tray truck, but, there is no evidence as to whether or not he, like the applicant Coleman and the co–defendant Thiele, was at any stage actually engaged in the process of sawing the timber.
10. In any event, as the learned magistrate said in his reasons for dismissing the application for costs, he did not know what evidence the prosecution had in its possession. In addition, the learned magistrate was not obliged to accept all the statements of fact made in the affidavits of the applicants. See Cole v. The Commonwealth [1962] S.R. (N.S.W.) 700; cf. 36 A.L.J.R. 185; Re Gear [1964] Qd.R. 528; Taylor v. Ellis [1956] V.L.R. 457.
11. It was also submitted in argument that, upon the material before him, the learned magistrate could only conclude that, there was insufficient evidence of the requisite mens rea to have convicted either of the applicants. It was submitted that the applicants were employees within the meaning of the Forestry Act, s.30A(2) which provides that a forest produce licence authorises the licensee “and his employees” to cut and take forest produce in accordance with the terms of the licence. However, this submission suffers the same fate as the previouS submission for the same reason. Assuming, but without deciding, that the offence was one of strict liability and that the applicants were employees, without being aware of the evidence the prosecution had in its possession, the learned magistrate was not compelled to reach the conclusion that, had the prosecution proceeded, it would have failed because both applicants honestly but mistakenly believed on reasonable grounds that the co–defendant Thiele had a licence. The grounds which rely upon the proposition that the learned magistrate made a specific error as alleged in ground 9 of the amended motion to review fails.
12. I now turn to the first alleged specific error namely, a misdirection of law. The learned magistrate referred to Bradley v. Lawson [1978] Tas. S.R. 213 and R. v. Freshney (supra). He referred to the fact that the application was not opposed and then directed himself in accordance with the judgment of his Honour Mr. Justice Cosgrove in Freshney.
13. The Costs in Criminal Cases Act 1976 provides:
“4–(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where –
(a) he is acquitted of the offence;
(b) the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence,
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.
(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:–
(a) Whether the proceedings were brought and continued in good faith;
(b) Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c) Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d) Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e) Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof.”
14. With respect to the proper exercise of the discretion conferred by that section Cosgrove J. in Freshney said at p.128:
“1. The discretion to order costs is an unfettered discretion. Subsections 3 and 4 appear to anticipate a temptation to fetter the discretion and are designed to prevent in advance, as it were, any such limitations being imposed.
2. The considerations enumerated in pars. (a) to (e) of subs. (2) are of the same nature. They state considerations which ought to be considered. But in case one or more of them might be thought to be conclusive, the subsection emphasises that they are not.
3. Unless an issue is raised under par. (e), a tribunal hearing an application should refrain, so far as possible, from expressing or hinting at any view as to the guilt or innocence of the applicant.
4. The section is a grant of power. That power must, I think, be construed in the context of the enactment, that is to say, against the background that, until it became law, the Court had no power to order costs of trials.
5. The power granted is power to award ’such costs as it thinks just and reasonable‘ i.e., only to award costs where it is just and reasonable that the Crown should pay an accused person’s costs; and then only such amount (see s. 4(1) and s. 6) as is just and reasonable. The statute does not in terms refute or abrogate the long–standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is almost spelt out in the section).
It seems to me to follow that the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion (cf. the authorities dealing with the discretion to extend time).
6. Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance, other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs. This interpretation seems to me to be not inconsistent with the construction placed upon a similar statute by Chilwell J. of the Supreme Court of New Zealand in Reg. v. AB [1974] 2 N.Z.L.R. 425.”
15. A year later, in Bradley v. Lawson (supra) the Chief Justice approved of the conclusion expressed in R. v. Freshney (supra) and held that there was an onus on the applicant to persuade the court that there was a positive reason for the exercise of the discretion in his favour. Senior counsel for the applicants submitted that R. v. Freshney (supra) and Bradley v. Lawson (supra) were no longer good law since the decision of the High Court in Latoudis v. Casey (supra). The case of Latoudis originated in a court of petty sessions in Victoria. A magistrate there refused to make an order for costs in favour of a successful defendant. The relevant statutory provision, Magistrates‘ (Summary Proceedings) Act 1975 (Vic), s.97(b) provided:
“Where the court dismisses the information or complaint, or makes an order in favour of the defendant the court may order the informant or the complainant to pay the defendant such costs as the court thinks just and reasonable.”
16. The question for decision in Latoudis was, “what, if any, are the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant?”, per Mason C.J. at p.46. From the judgments of the members of the court, it appears that in each State and Territory (except Tasmania) there is legislation in identical, or similar terms to the Victorian provision, but the guide–lines, developed by the courts, for the proper exercise of that statutory discretion are not the same in each jurisdiction.
17. Mason C.J., Brennan, Dawson and Toohey JJ. confirmed the proposition expressed in Norbis v. Norbis (1986) 161 C.L.R. 513 at pp.518–519 that, where the legislature confers an unfettered discretion upon the judiciary, judicial development of appropriate principles or guide–lines for the proper exercise of that discretion promotes consistency in decision making and diminishes the risk of arbitrary and capricious adjudication (p.61). Such guide–lines or principles do not fetter the exercise of a discretion unfettered by statute. They promote consistency of decision making but that does not mean that in an appropriate case the guide–lines cannot be put aside.
18. In Latoudis, Mason C.J., Toohey and McHugh JJ. (the majority) held that an award of costs is not to be regarded as punishment of the unsuccessful party but as compensatory to indemnify the successful party against the expense incurred by reason of legal proceedings. The significance of this principle is that it banishes any suggestion that an award of costs against an informant is a mark of disapproval of the institution of the proceedings.
19. The majority held that, as the statute conferring the discretion was without either fetter or guide–lines, the learned magistrate had erred in focusing upon the reasonableness of the informant’s conduct in instituting proceedings and the defendant‘s failure to take certain steps at an early stage in the proceedings. The majority agreed that there was a difference in the nature of the discretion to award costs in summary proceedings and the power to award costs in civil proceedings but that in general circumstances, an order for costs should be made in favour of a successful defendant.
20. Of the five justices, Mason C.J. and Dawson J. expressly referred to the Costs in Criminal Cases Act (Tas), s.4 and the decisions of Freshney and Bradley v. Lawson (supra). Dawson J. merely recited the relevant Tasmanian provisions and cases without making any observation about them, but Mason C.J. said at p.49:
“However, the rule that has been applied in Tasmania is the product of judicial interpretation of a Tasmanian statute which prescribes relevant factors to be taken into account. For that reason I do not regard the Tasmanian approach as an authoritative or influential guide to the manner in which a general discretion, unconfined except by reference to its subject matter and the scope and purpose of the statute, should be exercised.” [My emphasis].
The reverse is equally applicable. The High Court’s interpretation of a statutory provision common to all Australian jurisdictions except Tasmania, is not authoritative as to the manner in which the discretion should be exercised under Tasmanian legislation which is expressed in unique terms. Mason C.J. went on to say (p.49), “with the exception of Tasmania, the courts have been given a general statutory discretion which has not been constrained, even by prescription of relevant considerations or criterion.”
21. Senior counsel for the applicants submitted that Cosgrove J. erred in Freshney in that he imported into the proper exercise of the discretion a principle that the Act had abolished when he said at p.128, that the “power must be construed in the context of the enactment, that is to say, until it became law, the court had no power to order costs of trial.” Reliance was placed on the passage in the judgment of the Chief Justice in Latoudis at p.46, to the effect that the old rule that the Crown neither paid nor received costs could not survive once statutory enactment gave the courts a power to award costs in criminal proceedings. I do not understand Cosgrove J. to be saying that the old common law rule survived the statute, nor do I understand the Chief Justice in Latoudis to be saying that upon a question of statutory interpretation or upon the establishment of guide–lines for the proper exercise of a statutory discretion, it is impermissible in appropriate cases to have regard to the history of the legislation or the law immediately prior to its enactment. Indeed, the terms of Costs in Criminal Cases Act 1976, s.4 reflect the history to which Cosgrove J. referred. The statutory prescription of some of the relevant factors to be considered upon the exercise of the unfettered discretion is a clear indication of the guide–lines the legislature expected the judiciary to develop for the proper exercise of the power granted by the section. I see no error in the expression of those guide–lines in either Freshney or Bradley v. Lawson (supra).
22. Having regard to the difference between the legislation in other Australian jurisdictions and the provisions of the Costs in Criminal Cases Act, s.4, the decision in Latoudis v. Casey (supra) is not a cause for a re–examination of the decisions of Freshney and Bradley v. Lawson (supra). Consequently, I see no reason to refer this motion to the Full Court for determination.
23. The enactment makes it clear that the power to award costs is not to be exercised unless there is some positive reason for doing so and, by virtue of s.4(3), the mere fact of acquittal, dismissal or withdrawal is not a sufficient reason for the activation of the discretion in favour of the applicant. At the conclusion of his reasons, the learned magistrate said:
“I am conscious the application is not opposed, but after considering all the material adduced and the submissions made, I am not satisfied that the applicants ought to have the order sought.”
24. In the body of his reasons the learned magistrate deals with relevant matters in an appropriate manner and it could not be said that, having directed himself in accordance with guide–lines set out in R. v. Freshney (supra) the order of dismissal reflected some unidentifiable general error.
25. The motion will be dismissed.
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