Dean v Turner

[2010] QDC 489

DISTRICT COURT OF QUEENSLAND

CITATION:

Dean v Turner [2010] QDC 489

PARTIES:

ROBERT KEVIN DEAN
(Appellant)

V

DALLAS WAYNE TURNER
(Respondent)

FILE NO/S:

D 3134/09

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Caboolture Magistrates Court

DELIVERED ON:

16 December 2010

DELIVERED AT:

Brisbane

HEARING DATE:

6 December 2010

JUDGE:

Samios DCJ

ORDER:

1. Appeal allowed
2. Respondent to pay the appellant’s costs below in the sum of $1,500 and the costs of the appeal in the sum of $1,800

CATCHWORDS:

Costs – Discretion

Justices Act 1886 s 158; 158A(1) and 158A(2)

Latoudis v Casey (1990) 170 CLR 534
Smith v Ash (2010) QCA 112
House v R (1936) 55 CLR 499 at 504-505

COUNSEL:

Mr J Crowley for the appellant
Ms M Litchen for the respondent

SOLICITORS:

Ryan and Bosscher Lawyers for the appellant
Office of the Queensland Police Service for the respondent

1. The appellant was charged that on 25 February 2008 at Caboolture he unlawfully entered the yard of the dwelling situated at 10 Tanunda Court.

1. The appellant pleaded not guilty to the charge and after a hearing on 19 October 2009 the learned magistrate found him not guilty of the charge and dismissed the charge against him.

1. The appellant sought an order from the learned magistrate that the respondent (the police officer) who brought the charge against him pay the appellant’s costs.

1. The learned magistrate refused to order the appellant’s costs be paid by the respondent. 

1. This is an appeal against the learned magistrate’s refusal to order the respondent to pay the appellant’s costs. 

1. The grounds of the appeal are:

1.          That the learned magistrate erred in exercising his discretion that there be no order as to costs;

2. In exercising his discretion the learned magistrate placed too much weight on the consideration contained in s 158A(2)(f)(ii), (Justices Act 1886) (“the Act”)  namely being that the defendant had not given notice of a witness on whose evidence he would rely.

3.          In exercising his discretion the learned magistrate gave insufficient weight to the remaining considerations in s 158A(2).

1. The background to the charge is that the appellant’s family and the family living across the road in Tanunda Court, the Hennesseys, were not on good terms. 

1. On 28 February 2008 one of the appellant’s children and one of the Hennessey’s children were having an argument.  The parents of the Hennessey child, Jane and Paul Hennessey, came out of their house during the confrontation.  Jane Hennessey confronted Michelle Dean, the appellant’s child.  The appellant heard the commotion and came across the road.  Whether the appellant entered the Hennessey’s property was the issue at the hearing before the learned magistrate.

1. Mr and Mrs Hennessey said the appellant entered the property.  The appellant and his partner denied this allegation.  However a neighbour Cheryl Davis who was called by the defence stated that the appellant came out and stood on the public side of the fence. 

1. Although a police officer was called for the prosecution he did not address these issues as he…