Costa v Parks - [2008] VSC 47

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5208 of 2006

SAMUEL PETER COSTA	Appellant
v
IAN GORDON PARKS	Respondent

No. 5209 of 2006

BARRY KEITH SHEPHERD	Appellant
v
IAN GORDON PARKS	Respondent

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JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	29 November 2007
DATE OF JUDGMENT:	27 February 2008
CASE MAY BE CITED AS:	Costa v Parks
MEDIUM NEUTRAL CITATION:	[2008] VSC 47

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PRACTICE AND PROCEDURE – COSTS – Orders in respect of costs by Magistrate in criminal proceedings - Findings about the nature of the evidence and the credibility of the witnesses irrelevant – Whether defendants were successful – Whether discretion miscarried – No error shown - Appeals dismissed – Magistrates’ Court Act 1989 s.92, s.131.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	A D Trood	Brian O’Haire
For the Respondent	B M Dennis	Victorian Government Solicitors Office

HIS HONOUR:

In each of these proceedings, by a notice of appeal filed on 17 March 2006, the appellant has appealed to this Court, pursuant to s.92(1) of the Magistrates’ Court Act 1989, on a question of law from a final order in a criminal proceeding made on 20 February 2006 in the Magistrates’ Court at Mildura. The affidavits filed by Samuel Peter Costa and Barry Keith Shepherd in support of their respective appeals disclosed that the joint hearing in the Magistrates’ Court of the charges against each of them had lasted for seven days, between 6 and 14 February 2006, with judgment being delivered on 20 February 2006. In each proceeding, the question or questions of law stated in the notice of appeal raised the issue of whether the learned Magistrate had erred in the making of the order in respect of costs at the conclusion of the proceeding.

In the case of Mr Costa, the final order was that, in case number T01134532, five charges contrary to the Fisheries Act 1995 and three charges contrary to the Fisheries Regulations 1998 were dismissed and, in case number T01862131, three charges contrary to the Fisheries Act 1995 were found proven (he having pleaded guilty to two of them) in respect of which an aggregate fine of $900 was imposed without conviction. (On the second day of the hearing, 7 February 2006, prosecuting counsel had applied, in case number T01134532, to have six charges against Mr Costa under the Marine Act 1998 withdrawn and, on that day, the Magistrate had ordered that they be struck out.) The 14 charges in case number T01134532 related to alleged acts by Mr Costa on the Murray River at or near Boundary Bend on 15, 16 and 18 February 2005. A threshold question was whether the alleged acts took place in Victorian waters. The two charges in case number T01862131 to which Mr Costa pleaded guilty related to alleged conduct by Mr Costa in Victoria between 1 February and 22 March 2005. The third charge alleged unlawful possession of commercial fishing equipment by Mr Costa…

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 Costa v Parks

Details

AGLC: Costa v Parks [2008] VSC 47
Case: [2008] VSC 47
Decision Date: 27 February 2008

CaseChat Overview and Summary

In the matter of Costa v Parks, the case was heard in the County Court of Victoria. The matter involved an appeal against costs orders made by a magistrate in criminal proceedings. The defendants, who were found guilty, sought to challenge the costs orders made against them by the magistrate. The central issue before the court was whether the magistrate's findings about the nature of the evidence and the credibility of the witnesses were irrelevant and whether the defendants were successful in their appeal against the costs orders. The court was also required to determine if the magistrate's discretion in making the costs orders had miscarried.

The court found that the magistrate's findings about the nature of the evidence and the credibility of the witnesses were indeed irrelevant to the determination of the appeal against costs. The court held that the magistrate's decision to make the costs orders against the defendants was not in error. The court further clarified that the defendants' success in the appeal was not dependent on the nature of the evidence or the credibility of the witnesses but rather on the overall outcome of the criminal proceedings. The court dismissed the appeal, affirming the magistrate's decision on costs.

The court emphasised that the discretion to award costs in criminal proceedings lies with the magistrate, and the court should not interfere with such decisions unless there is a clear error of law or a miscarriage of discretion. In this case, the court found no such error and thus upheld the magistrate's costs orders. The final orders of the court were that the appeals against the costs orders were dismissed.

Orders