Cornelius Stevens v Emily McCallum

[2006] ACTCA 19

CORNELIUS STEVENS v EMILY McCALLUM
[2006] ACTCA 19 (23 October 2006)

McEwen v Siely (1973) 21 FLR 131

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 39 - 2005
No. SCA 31 of 2005

Judges:  Higgins CJ, Crispin P and North J
Court of Appeal of the Australian Capital Territory
Date:  23 October 2006

IN THE SUPREME COURT OF THE  )   No. ACTCA 39 - 2005
  )  No. SCA 31 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CORNELIUS STEVENS

Appellant

AND:EMILY MCCALLUM

Respondent

ORDER

Judges:  Higgins CJ, Crispin P and North J
Date:  23 October 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. No order as to costs in respect of the hearing before Magistrate Doogan.

1. The Respondent to pay the Appellant’s costs of and incidental to the appeals from that decision.

IN THE SUPREME COURT OF THE  )   No. ACTCA 39 - 2005
  )  No. SCA 31 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CORNELIUS STEVENS

Appellant

AND:EMILY MCCALLUM

Respondent

Judges:  Higgins CJ, Crispin P and North J
Date:  23 October 2006
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. We are of the view that had the appellant been competently represented at the original hearing the appeals that followed would have been unnecessary.

1. However, if the appeal at first instance had been decided as this appeal was, this appeal would have been unnecessary.

1. Costs are in the discretion of the Court.  The purpose of a costs order is to do justice, to the extent that can occur, as between the parties.

1. It is, as McEwen v Siely (1973) 21 FLR 131 makes clear, appropriate to take account of the public interest being pursued by the prosecution, not as previously thought, to deny costs to a successful defendant, but rather to note that the costs of a successful prosecution are ordinarily to be borne by the prosecution. The cost to the public is, again ordinarily, reflected indirectly in the penalty imposed on the defendant.

1. In the present case, it seems to us that justice would be served by making no order as to costs in respect of the hearing before Magistrate Doogan but ordering that the respondent pay the appellant’s costs of and incidental to the appeals from that decision.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 23 October 2006

Counsel for the Appellant:  Mr R Thomas
Solicitor for the Appellant:  Paul Edmonds Solicitor and Barrister
Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Dates of written submission:  8 August 2006 and 28 September 2006
Date of judgment:  23 October 2006