DPP v Hore (No 2) - [2005] VSCA 55

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7499 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of FARNHAM ALLAN MOLESWORTH)

RUSSELL GEOFFREY HORE (NO. 2)

Appellant

Respondent

No. 7500 of 2003

DIRECTOR OF PUBLIC PROSECUTIONS (on behalf of ROSEMARY ANNE UNWINS)

SIMON ASKWITH (NO. 2)

Appellant

Respondent

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JUDGES:	ORMISTON and CHARLES, JJ.A. and HANSEN, A.J.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	16 and 17 August 2004
DATE OF JUDGMENT:	18 March 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 55

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Appeal – From orders of Trial Division dismissing appeal from Magistrates’ Court – Magistrates’ Court order dismissing charge for summary offence – Appeal allowed – Whether unsuccessful respondent entitled to an indemnity certificate on appeal to the Court of Appeal – Whether appeal is “civil proceeding” – Whether jurisdiction to grant indemnity certificate – Appeal Costs Act 1998 s.4(1)(b).

Appeal – Costs – Whether power to order unsuccessful respondent to appeal to pay costs of the appeal to the Trial Division and Court of Appeal.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr O.P. Holdenson, Q.C. and Mr C.W. Beale	Ms K. Robertson, Solicitor for Public Prosecutions
For the Respondents	Mr G.A. Hardy and Mr P.A. Cassidy	Tyler, Tipping & Woods

ORMISTON, J.A.:

Certain matters relating to costs arising out of these two successful appeals were stood over for further submissions. I agree with the conclusions reached by Hansen, A.J.A. in the judgment to be delivered by him and with his conclusions for reaching them.

CHARLES, J.A.:

I have had the benefit of reading the reasons for judgment prepared by Hansen, A.J.A. in relation to the matters concerning costs arising out of these two appeals. I agree with the conclusions reached by his Honour, and with his reasons.

HANSEN, A.J.A.:

On 4 November 2004, this Court allowed an appeal brought by the Director of Public Prosecutions (on behalf of two police informants) against the judgment of a Trial Division judge who had dismissed with costs a Director’s appeal, brought pursuant to s.92(1) of the Magistrates’ Court Act 1989, from a magistrate’s decision to dismiss charges under s.49(1)(f) of the Road Safety Act 1986 against two defendants. Although there were in fact two separate appeals, one in respect of each defendant, the cases raised the same point thus enabling the appeals to be heard together, as they had been in the Trial Division. This Court ordered in each case that the appeal be allowed with costs, that the orders of the learned Trial Division judge be set aside, that the appeal to the Trial Division be allowed with costs, that the order of the magistrate be set aside and the matter be remitted for rehearing and determination according to law.[1]
[1][2004] VSCA 192

At the time, counsel for the respondent opposed the orders for costs on the basis that the case raised a matter of public importance. He did not submit that the Court lacked power to order costs. The Court considered that submission but determined that…

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 DPP v Hore (No 2)

Details

AGLC: Director of Public Prosecutions v Hore and Askwith (No 2) [2005] VSCA 55
Case: [2005] VSCA 55
Decision Date: 18 March 2005

CaseChat Overview and Summary

The case of DPP v Hore (No 2) involved an appeal against orders made by the Trial Division of the Supreme Court, which had dismissed an appeal from a Magistrates’ Court. The Magistrates’ Court had previously dismissed a charge for a summary offence, and the appeal sought to challenge this decision. The central issue before the court was whether the unsuccessful respondent was entitled to an indemnity certificate upon appealing to the Court of Appeal. This inquiry necessitated a determination of whether an appeal from a Magistrates’ Court to the Trial Division is a "civil proceeding" within the meaning of the Appeal Costs Act 1998. Additionally, the court needed to assess if it had the jurisdiction to grant an indemnity certificate and if so, under what circumstances.

The court addressed the issue by examining the relevant legislative provisions, particularly section 4(1)(b) of the Appeal Costs Act 1998. It found that the nature of the appeal from a Magistrates’ Court to the Trial Division did not constitute a "civil proceeding" as defined in the Act. Consequently, the unsuccessful respondent was not entitled to an indemnity certificate. The court also examined the power to order the unsuccessful respondent to pay the costs of the appeal to both the Trial Division and the Court of Appeal, concluding that such an order could be made if it was deemed appropriate and just in the circumstances.

The outcome of the appeal was that it was allowed, primarily on the basis that the unsuccessful respondent was not entitled to an indemnity certificate. The court’s reasoning hinged on the interpretation of the Appeal Costs Act 1998 and the nature of the proceedings. The final orders of the court included a ruling that the unsuccessful respondent was not entitled to an indemnity certificate, while also considering the costs implications of the appeal.

Orders