Cominelli v Travaglini
[2015] WASC 437
•16 NOVEMBER 2015
COMINELLI -v- TRAVAGLINI [2015] WASC 437
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 437 | |
| Case No: | SJA:1059/2015 | 9 NOVEMBER 2015 | |
| Coram: | CHANEY J | 16/11/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to magistrate | ||
| B | |||
| PDF Version |
| Parties: | JUSTIN COMINELLI PAUL ALFRED TRAVAGLINI |
Catchwords: | Costs Magistrates Court Accused's costs Partly successful accused Additional costs Offer to plead guilty to lesser charge Trial of all issues except identity Whether offer relevant consideration for purposes of Official Prosecutions (Accused's Costs) Act 1973 (WA) |
Legislation: | Criminal Appeals Act 2004 (WA), s 7 Criminal Code (WA), s 1 Evidence Act 1906 (WA), s 32 Legal Profession Act 2008 (WA), s 252 Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5, s 7 Road Traffic Act 1974 (WA), s 49AA, s 59, s 59A |
Case References: | Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586 House v The King [1936] HCA 40; (1936) 55 CLR 499 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605 Morrison v Defence Maritime Services Pty Ltd, Coates and Mahon [2007] NSWLEC 552 Norton v Morphett (1995) 83 A Crim R 90 Shewchuck v Total Western Transport Pty Ltd (1998) 105 A Crim R 72 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
PAUL ALFRED TRAVAGLINI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M D WHEELER
File No : PE 100002 of 2014
Catchwords:
Costs - Magistrates Court - Accused's costs - Partly successful accused - Additional costs - Offer to plead guilty to lesser charge - Trial of all issues except identity - Whether offer relevant consideration for purposes of Official Prosecutions (Accused's Costs) Act 1973 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 7
Criminal Code (WA), s 1
Evidence Act 1906 (WA), s 32
Legal Profession Act 2008 (WA), s 252
Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5, s 7
Road Traffic Act 1974 (WA), s 49AA, s 59, s 59A
Result:
Appeal allowed
Matter remitted to magistrate
Category: B
Representation:
Counsel:
Appellant : Mr B D Nelson
Respondent : No appearance
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : No appearance
Case(s) referred to in judgment(s):
Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586
House v The King [1936] HCA 40; (1936) 55 CLR 499
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605
Morrison v Defence Maritime Services Pty Ltd, Coates and Mahon [2007] NSWLEC 552
Norton v Morphett (1995) 83 A Crim R 90
Shewchuck v Total Western Transport Pty Ltd (1998) 105 A Crim R 72
1 CHANEY J: On 26 June 2015, following a trial which had taken place over a day and a half on 24 and 25 June 2015, the respondent was convicted of two offences of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the Road Traffic Act 1974 (WA) (RT Act). Both offences arose from the same traffic accident. As a result of the accident, injury was suffered by Ms Arielle Griggs, a passenger in the vehicle being driven by the respondent, and by Ms Kerry Lewis, an occupant of another vehicle involved in the collision. The two charges related to the harm caused to each of those persons.
2 The charge upon which the respondent was tried in relation to Ms Griggs was a charge of dangerous driving occasioning grievous bodily harm contrary to s 59(1)(b) of the RT Act (Charge 1). That charge was dismissed, but the respondent was convicted of the alternative offence of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the RT Act. The charge in relation to Ms Lewis on which the respondent was tried and convicted was the charge of dangerous driving occasioning bodily harm contrary to s 59A(1)(b) of the RT Act (Charge 2).
3 For each of the offences the magistrate imposed a fine of $1,500 and a 12 month licence disqualification. On the basis that the respondent had been partially successful in relation to Charge 1, the magistrate made an order under the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Accused's Costs Act) for costs in favour of the respondent in the sum of $14,322. The appellant seeks leave to appeal against the decision to award costs in that amount. On 8 October 2015, Corboy J ordered that the application for leave be heard at the same time as the appeal.
4 Despite having been served both personally and through the solicitors who represented him at trial, the respondent did not appear at the hearing of the appeal. Counsel for the appellant advised that the respondent's solicitors had advised his office that the respondent did not wish to be heard on the merits of the appeal, but, in the event that this court were to set the magistrate's order aside and substitute its own decision, he would wish to be heard on the substituted decision. If the matter is to be remitted to the magistrate, then no doubt the respondent will have the opportunity to be heard when the magistrate further considers the matter.
Grounds of appeal
5 There are two grounds of appeal. They are that:
1. The Learned Magistrate erred in law in ordering that the accused was entitled to costs in the sum of $14,322, contrary to section 7(1) of the Official Prosecutions (Accused' Costs) Act 1973;
further, or in the alternative,
2. The Learned Magistrate erred in fact by finding that the accused incurred additional costs (within the meaning of section 7(1) of the Official Prosecutions (Accused's Costs) Act 1973) in the sum of $14,322.
Applicable principles
6 A decision as to costs is a 'decision' for the purposes of the right of appeal which is conferred by s 7 of the Criminal Appeals Act 2004 (WA) in relation to decisions of courts of summary jurisdiction (Criminal Appeals Act s 6(h)). Leave to appeal is required in relation to each ground (Criminal Appeals Act s 9(1)). Leave to appeal must not be given unless the court is satisfied that the ground has a reasonable prospect of succeeding (Criminal Appeals Act s 9(2)).
7 The appellant accepts that the respondent was a 'partly successful accused' for the purposes of s 7 of the Accused's Costs Act, and thus accepts that the magistrate had both a discretion to award 'additional costs' incurred by the respondent by reason of being charged with the offence of which he was acquitted and a discretion as to the quantum of those costs. In an appeal on a decision involving the exercise of a discretion, there is a strong presumption in favour of the correctness of the decision appealed from, and the decision should be affirmed unless this court is satisfied that the decision is clearly wrong: House v The King [1936] HCA 40; (1936) 55 CLR 499, 504, 505; Mallett v Mallett [1984] HCA 21; (1984) 156 CLR 605, 634.
8 Where an appeal in relation to a costs decision relates to quantum only, the court will be reluctant to interfere with the decision unless there is some significant error of principle to be detected in the magistrate's approach: Norton v Morphett (1995) 83 A Crim R 90, 100; Shewchuck v Total Western Transport Pty Ltd (1998) 105 A Crim R 72, 78, 79.
Accused's Costs Act
9 The award for costs was made by the magistrate pursuant to s 7(1) of the Accused's Costs Act. That section provides:
(1) Subject to this Act, where a partly successful accused satisfies the court that he incurred additional costs by reason of being charged with an offence or offences in respect of which he was successful, the court may order that he is entitled to those costs.
10 By s 4(2)(b)(i) of the Accused's Costs Act, an accused is partly successful if he is convicted of a lesser offence than that with which he was charged.
11 By reason of s 5(5) of the Accused's Costs Act, the amount of costs ordered is to be in accordance with the scale fixed from time to time by a costs determination as defined in the Legal Profession Act 2008 (WA) s 252. The relevant costs determination for present purposes is the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA) (2014 Costs Determination).
The submissions on costs
12 Immediately following delivery of the magistrate's decision on the charges before him, counsel for the respondent advised the magistrate that an offer had been made, prior to trial, to plead guilty to dangerous driving occasioning bodily harm in respect of both complaints, but that that offer had been rejected. On that basis, counsel indicated that he would be making an application for costs.
13 Having delivered his submissions in mitigation and penalty, counsel for the respondent then returned to the question of costs. He sought costs of $14,322 being an amount which he said was 'entirely adherent to the scale except for a claim of four additional hours, only, in connection to the complexity involved in this matter. Prosecution brief of evidence was voluminous and involved experts of a medical and a traffic camera nature …' Counsel submitted that his client had been partially successful to the extent that he was willing to plead guilty to every charge of which he had been convicted (ts 15, 26/06/15).
14 The precise terms of the offer referred to, when it was made and the form in which it was made were not disclosed to the magistrate. He was simply told that there had been an offer to plead guilty to offences under s 59(a)(1) of the RTA at some time after the full brief had been delivered and in 'recent weeks'.
15 The precise calculation of the costs claimed does not appear from the transcript to have been itemised for the magistrate. As noted above, the magistrate was told that the amount 'adhered to' the scale. Counsel for the appellant, in his written submissions on the appeal, suggested that the respondent's entitlement to costs may have been calculated as outlined in a table set out in the submissions having regard to the 2014 Costs Determination. That table reads as follows:
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16 As counsel for the appellant observed, if the allowance for attending on the reserved decision is removed from the figures in the above table, the new total is $14,322, being the amount of costs awarded. The transcript reveals that the second day of trial ran from 10.57 am to 12.50 pm or just under two hours. It may be that the amount claimed by the respondent, and awarded by the magistrate, made no claim for item 7 on the basis that a full day was claimed under item 5. With that allowance, it is reasonable to accept that the table accurately reflects the basis upon which the amount awarded was arrived at. That demonstrates that the amount of costs awarded was, as the magistrate indicated, assessed on the basis that the additional costs incurred by the respondent by reason of being charged with Charge 1 comprises all of the costs of trial on both charges together with four adjournments of the matter prior to trial.
17 In response to the application for costs, the prosecutor acknowledged that the accused had offered to plead guilty to two charges of dangerous driving causing bodily harm. He continued:
If the defence position was going to be that the accused at the start of trial conceded the dangerous driving then that issue would have fallen by the wayside and the issue would have been shortened and we could have gone straight to the medical evidence of Dr Pardhan and this trial could have been over by lunchtime on the first day.
So what I am saying, sir, is that the reason this matter has gone to trial for the full two days it did is because the prosecution was put to [proof] on every element of the offence although that the offer was made (sic) the offer didn't carry through to an offer of plea of dangerous driving conceded as an element of the offence (ts 20, 26/06/15).
18 He submitted that the accused had not been successful in relation to disproving the element of dangerous driving and had only succeeded on the issue of grievous bodily harm in relation to Charge 1.
The magistrate's decision
19 The magistrate's reasons in relation to the question of costs were brief. He said:
[The accused will get costs] under the Official Prosecution's Costs Act that will attach to the first count. The matter went to trial. The issue of grievous bodily harm was raised at all times. The two charges would have proceeded together in any event once the proposal to accept grievous bodily harm hadn't occurred was rejected[.] [A]s a partially successful defendant the costs are enlivened by the act. In my view, the costs sought are reasonable and in scale (ts 23, 26/06/15).
Ground 1
20 The discretion which arises under s 7(1) of the Accused's Costs Act is a discretion to order that the partly successful accused is entitled to additional costs incurred by reason of being charged with the offence in respect of which he was successful. The costs which were awarded by the magistrate would appear to be all of the costs which might have been awarded under s 5 of the Accused's Costs Act had the respondent been acquitted of both charges, and thus been a successful accused for the purposes of the Accused's Costs Act.
21 In my view, it cannot be said that all of the costs the subject of the magistrate's order are capable of being 'additional costs' for the purposes of s 7(1) of the Accused's Costs Act. With respect, I consider that the magistrate fell into error in his application of s 7(1) by failing to limit the costs awarded by reference to an assessment of the costs which could be properly categorised as 'additional costs'.
22 The magistrate's starting point appears to be that the rejection of the offer to plead guilty to a lesser offence in relation to the charge concerning Ms Griggs, and the charge relating to Ms Lewis, caused the respondent to incur additional costs in the sum which he awarded. If, in reaching that conclusion, the magistrate was applying the principles in relation to 'Calderbank offers' (see Calderbank v Calderbank [1975] 3 All ER 333; (1975) 3 WLR 586) as they apply in civil proceedings, then he was in error. The Accused's Costs Act makes no provision for the consequences of rejection of any offers to compromise proceedings. That no such provision is made is consistent with the proposition that criminal cases cannot be compromised or settled in the way in which civil cases are: see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 543 (Mason CJ), 568 (McHugh J); Morrison v Defence Maritime Services Pty Ltd, Coates and Mahon [2007] NSWLEC 552 [32].
23 The statutory test under s 7(1) requires identification of 'additional costs by reason of being charged with' the offence in respect of which the respondent was successful. The respondent was partly successful, for the purposes of the Act, because he was convicted of a lesser offence than that with which he was charged. The element of the offence with which he was charged, which was not an element of the offence with which he was convicted, was the requirement for the prosecution to prove that the result of the dangerous driving was 'grievous bodily harm', as distinct from 'bodily harm' which is an element of an offence against s 59A(1)(b). Logically, the additional costs incurred by the respondent by reason of being charged with an offence involving grievous bodily harm were the costs related to that element. That is, whether Ms Griggs suffered any bodily injury of such a nature as to endanger, or be likely to endanger life, or to cause or be likely to cause, permanent injury to health: see Criminal Code (WA) s 1(1); RT Act s 49AA.
24 It was a matter for the respondent to choose whether to plead guilty in relation to the charge concerning Ms Lewis and make admissions pursuant to s 32 of the Evidence Act 1906 (WA) as to the manner of driving and the causing of bodily harm to Ms Griggs and Ms Lewis. Had he done so, as the prosecutor observed in his submissions to the magistrate on costs, the trial would have been confined to the proper characterisation of the injury to Ms Griggs. The trial would have occupied a fraction of the time which was ultimately consumed by a trial in which all matters, other than the identity of the driver, (which, I was advised by counsel for the appellant, the respondent had admitted), remained in issue. The respondent chose to put the prosecution to proof of all of the elements of both offences (other than identity), which, of course, he was quite entitled to do. The costs associated with that choice cannot be characterised as additional costs by reason of having been charged with the offence involving grievous bodily harm.
25 In my view, the magistrate erred in law in his application of s 7(1) of the Accused's Costs Act by failing to assess 'additional costs' incurred by the respondent by reason of having been charged with an offence against s 59(1)(a) of the RTA.
26 There should be leave to appeal on ground 1, and the appeal should be allowed on that ground.
Ground 2
27 It is unnecessary to deal with ground 2 since I have reached the conclusion that the magistrate failed to base his award on an assessment of 'additional costs'. Had his Honour correctly addressed the application of s 7(1), there was no basis, on the information before him, that he could have reached a conclusion that the whole of the costs which he awarded were 'additional costs', even if rejection of the offer was a relevant consideration. That is because the costs apparently included four attendances on adjourned hearings all of which would appear to have occurred before any offer to plead guilty was made. None of those costs could be said to be 'additional costs'. Furthermore, as discussed above, the costs of those parts of the trial relating to the charge relating to Ms Lewis and the issue as to the manner of driving in relation to the charge against Ms Griggs cannot be said to be additional costs.
28 Had it been necessary, I would have granted leave to appeal on ground 2, and allowed the appeal on that basis.
Disposition
29 As noted earlier, it is not in issue that the respondent was a partly successful party for the purposes of the Accused's Costs Act. He was entitled to an allowance for additional costs by reason of having been charged with an offence involving an element of causing grievous bodily harm. To the extent that he incurred additional costs in relation to that issue, he is entitled to an order in his favour for costs under s 7(1) of the Accused's Costs Act. Those costs are most likely to comprise at least some of the time at trial occupied by witnesses and submissions dealing with that element of the charge. The matter should be referred back to the magistrate to assess costs in accordance with s 7(1) of the Accused's Costs Act and these reasons.
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