Cummins v Guilfoyle

DISTRICT COURT OF QUEENSLAND

CITATION:

Cummins v Guilfoyle [2021] QDC 248

PARTIES:

ROLAND CUMMINS

(appellant)
v
AARON JOHN GUILFOYLE
(respondent)

FILE NO:

Appeal No 153 of 2020

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

8 October 2021

DELIVERED AT:

Cairns

HEARING DATE:

On the papers

JUDGE:

Morzone QC DCJ

ORDER:

1.   The respondent will pay the appellant’s costs of the appeal assessed at $4,135.33 within 60 days unless a longer period is agreed by the parties.

CATCHWORDS:

CRIMINAL LAW – APPEAL - COSTS - appeal pursuant to s 222 Justices Act 1886 – appeal allowed – appellant acquitted and discharged – test whether costs award is just – whether some special difficulty, complexity or importance – assessment pursuant to the scale in the Justices Regulation2014 (Qld).

LEGISLATION:

Justices Act 1886 (Qld), ss 222, & 226
Justices Regulation 2014 (Qld), s 232
Work Health and Safety Act 2011 (Qld) s 190

CASES:

Latoudis v Casey (1990) 170 CLR 534
Scanlon v Queensland Police Service [2011] QDC 236

COUNSEL:

T Ryan for the Appellant

SOLICITORS:

Hall Payne Lawyers for the Appellant

The Office of the Work Health and Safety Prosecutor for the Inspector

Introduction

1. The appellant applies for costs in the wake of the successful appeal against conviction pursuant to s 222(1) of the Justices Act1886 (Qld), subject of the decision delivered on 25 June 2021.

   Costs

2. The appellant argues that costs should follow the event.  On the contrary, the respondent contends that a costs award would not be just.

3. Section 226 of the Justices Act1886 (Qld) provides that a judge may make such an order as to the parties’ costs incurred in the bringing of an appeal under s 222 as the judge thinks just. The discretion must be exercised judicially,[1] to compensate a successful party, and not by way of punishment of the unsuccessful party.[2]

   [1]Latoudis v Casey (1990) 170 CLR 534.

   [2]Scanlon v Queensland Police Service [2011] QDC 236.

4. The appellant was successful in his appeal against conviction for intimidating a work health and safety inspector at a construction site contrary to s 190 of the Work Health and Safety Act 2011 (Qld). I found that the reasons for decision below were inadequate to support the verdict, and I am bound to allow the appeal against the conviction. On appellate review I found that the defects in the evidence about the element of intimidation at the original hearing are such that, taken at its highest, a court would have reasonable doubt about intimidation to entitle the appellant to an acquittal. In all the circumstances, I declined to remit the matter to for retiral.

5. The nature and complexity of the proceeding is evident from the appeal judgment and reasons.  The merits of the appeal were relatively strong and supportable by sound law and able argument.  The appellant endured the prosecutorial rigour at the original trial.  The offending conduct was relatively minor in nature and seriousness.  The conduct of…