Director of Public Prosecutions v Austin (Application for Costs)

[2021] VCC 2091

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. AP-19-2281

DIRECTOR OF PUBLIC PROSECUTIONS

v

CODY AUSTIN

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2021
DATE OF RULING:	17 December 2021
CASE MAY BE CITED AS:	DPP v Austin (Application for Costs)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2091

RULING

APPEAL OF CODY AUSTIN – APPLICATION FOR COSTS
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Subject:CRIMINAL LAW

Catchwords:              Application for Costs

Legislation Cited:      Criminal Procedure Act 2009; County Court Act 1958; Road Safety Act 1986

Cases Cited:Latoudis v Casey (1991) 70 CLR 534; R v Sobh (1994) 74 A Crim R 453; Mirrielees v Cross (unreported)

Ruling:  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Mr J. Jassar	Victoria Police
For the Applicant	Mr L. Richter	Balmer & Associates

HIS HONOUR:

Background

1On 12 February 2021, I heard a conviction appeal involving the appellant, Cody Austin, who had previously pleaded not guilty but been found guilty on 16 October 2019 in the Magistrates’ Court of one charge of recklessly causing injury, and had been sentenced to three months’ imprisonment. 

2After hearing evidence, I found in favour of the appellant, Mr Austin, who successfully raised the issue of self-defence in relation to an alleged assault on a taxi driver.  Self-defence had been raised by Mr Austin at the scene of the alleged incident, and I was informed that self-defence was the central issue in the Magistrates’ Court contest. 

3Upon finding in favour of the appellant, on application, I ordered costs in favour of the defence, with the quantum to be agreed by the parties.

4The matter came back before me on 23 November 2021, in order for the parties to ventilate an issue which had arisen with regard to the costs order.  In summary, a Bill of Costs compiled by the defence had been submitted to the Chief Commissioner of Victoria Police in the sum of $21,792, being costs associated with both the County Court appeal and the original Magistrates’ Court contest of 16 October 2019.  Victoria Police had responded by indicating that they would only pay the County Court costs of $4,137 – the accused was privately funded in the Magistrates’ Court but funded by Legal Aid in the County Court. 

5Accordingly, the issue for my determination was whether the costs order that I made includes the legal costs associated with the original hearing in the Magistrates’ Court.

6At the hearing before me on 23 November 2021, Mr Jassar appeared on behalf of Victoria Police.  In summary, Mr Jassar submitted that I was essentially functus officio.  An appeal in the County Court, it was argued, is a hearing de novo and pursuant to s256(2)(a) of the Criminal Procedure Act 2009, the Magistrates’ Court order is set aside at the beginning of the hearing. It was argued that it is not now possible for me to make an order which would essentially reach back into the jurisdiction of the Magistrates’ Court in order to cover costs incurred there.

7Relying upon s401 of the Criminal Procedure Act 2009 and s53A of the County Court Act 1958 with regard to the powers of the County Court, Mr Jassar essentially argued that I did not have jurisdiction with regard to costs in the Magistrates’ Court, and were I to make such an order it would be ultra vires, notwithstanding the longstanding practice in the County Court which allows Magistrates’ Court costs in County Court appeals.

8Mr Richter appeared on behalf of the appellant, Mr Austin.  He argued that there was a longstanding practice in this Court of costs associated with Magistrates’ Court proceedings being included in costs orders following a successful appeal in the County Court. 

9According to Mr Richter, there would need to be clear legislative intent to exclude costs in the Magistrates’ Court from a County Court costs order following an appeal.  The costs incurred in the Magistrates’ Court were necessarily incidental to the defence of the appellant, who made his way to the County Court on appeal following a finding of guilt by a magistrate.

10It was argued that, pursuant to s256(2)(c) of the Criminal Procedure Act 2009, there was a clear statutory entitlement to costs as, on an appeal, I can exercise any power which the Magistrates’ Court exercised, or could have exercised. It was submitted by Mr Richter that this clearly covered Magistrates’ Court costs.

Analysis and Conclusion

11Pursuant to s53A of the County Court Act 1958, this Court may hear and determine all appeals from convictions or orders of the Magistrates’ Court and, on any appeal, the court:

“shall have the same power of making orders with respect to costs and of enforcing those orders as it has in the case of appeals from convictions and orders of the Magistrates' Court.”

12Pursuant to s401(1) of the Criminal Procedure Act 2009 with regard to cost orders in the Magistrates’ Court, unless expressly provided by the Criminal Procedure Act 2009 or by the rules of the court:

“the costs of, and incidental to, all criminal proceedings in the Magistrates' Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.”

13Finally, pursuant to s256(1)(c) of the Criminal Procedure Act 2009, on the hearing of an appeal, the County Court may exercise any power which the Magistrates’ Court exercised, or could have exercised.

14Having considered the matter, I have determined that I am able to make a costs order that includes the costs of the appellant’s unsuccessful Magistrates’ Court contest. 

15As is now well-established from the High Court decision of Latoudis v Casey,[1] ordinarily, an order for costs should be made in favour of a successful defendant in summary proceedings.  In the unreported decision of Mirrielees v Cross (unreported),[2] after being convicted in the Magistrates’ Court with regard to charges under the Road Safety Act 1986, the appellant successfully appealed that conviction in the County Court, and an order was made for costs in favour of the appellant, which included reasonable costs for both the Magistrates’ Court and County Court.

[1](1991) 70 CLR 534.

[2]County Court of Victoria, his Honour Judge McInerney, 23 May 1997.

16Furthermore, in the well-known decision of R v Sobh,[3] the issue of costs which are incidental to proceedings was considered.  This case did not involve an appeal from the Magistrates’ Court to the County Court, rather it involved consideration of costs incurred by a defendant in the Magistrates’ Court which included costs incurred by a pursuing access to documents needed for the defence through the Administrative Appeals Tribunal (AAT). 

[3](1994) 74 A Crim R 453, per Mandie J.

17Following success in the summary jurisdiction, the plaintiff in Sobh sought an order for costs which included the costs associated with the proceedings before the AAT.  Justice Mandie, considering the principles articulated in Latoudis, held that:

“If the costs of the AAT proceedings were necessarily or reasonably incurred in or for the defence of the Children’s Court proceedings, then they were costs ‘incidental to’ those proceedings within the meaning of the Magistrates’ Court Act 1989 Victoria section 131.”

18In my view, whilst the decisions to which I have referred do not necessarily articulate a point of principle, they at least provide examples firstly, of Magistrates’ Court costs being included in County Court costs orders and, secondly, costs from another jurisdiction being included in a costs order as they were incidental to the proceedings.  In my view, the same principle should be applied here. 

19The costs incurred by Mr Austin in the Magistrates’ Court are, in my view, incidental to the costs incurred in the County Court.  Indeed, the way in which Mr Austin found himself in the County Court on appeal was by virtue of his unsuccessful defence in the Magistrates’ Court. 

20In my opinion, the instructions given by Mr Austin in the Magistrates’ Court cannot be decompartmentalised with instructions given in the County Court.  The two matters are, in my view, inextricably linked.  I can see no reason, based upon the material before me, to preclude Mr Austin from a costs order which incorporates the reasonable costs incurred in the Magistrates’ Court.

21In my view, I am not functus officio on this issue.  At the request of the parties, I have been called upon to provide clarity with regard to an earlier costs order made by me.  I agree with the defence that in order to ignore longstanding practice in the County Court with regard to the ordering of costs incurred in the Magistrates’ Court following a successful appeal, there would need to be clear legislative language to this effect.  There is not. 

22Accordingly, the costs order includes costs reasonably incurred by Mr Austin in the Magistrates’ Court proceedings.  Consistent with my order made on 12 February 2021, with the abovementioned clarification now stated, the quantum of the costs is to be determined between the parties.  In the absence of agreement, the parties have liberty to bring the matter back before me for determination.

23And I so rule.