DPP v Solkan Mohammad Donaczy & Anor

[2007] NSWSC 923

CITATION:	DPP v Solkan Mohammad Donaczy & Anor [2007] NSWSC 923
HEARING DATE(S):	13/08/07
JUDGMENT DATE :	22 August 2007
JUDGMENT OF:	Patten AJ at 1
LEGISLATION CITED:	Supreme Court Act 1970 Crimes (Sentencing Procedure) Act 1999 Bail Act 1978 Criminal Procedure Act 1986 Costs in Criminal Cases Act 1967 Suitors' Fund Act 1951
CASES CITED:	Grassby v The Queen (1989) 168 CLR 1 RTA v Hayek [2004] NSWSC 575 DPP v Boykin unreported Wood J 21 June 1994 Attorney General v Walker (1849) 3 Ex 242 154 ER 833 Pelechowski v Registrar of Court of Appeal (1999) 198 CLR 435
PARTIES:	Director of Public Prosecutions - Plaintiff Solkan Donaczy - First Defendant His Honour Robert Allen Walker - Second Defendant
FILE NUMBER(S):	SC 12890 of 2007
COUNSEL:	R. Lancaster - Plaintiff N/A - First Defendant N/A - Second Defendant
SOLICITORS:	Solicitor for Public Prosecutions I V Knight, Crown Solicitor
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Walker LCM
LOWER COURT DATE OF DECISION:	29/03/07

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Patten AJ

22 August 2007

No: 12890 of 2007

Director of Public Prosecutions
v

Solkan Mohammad Donaczy
and
His Honour Robert Allen Walker,
Local Court Magistrate

JUDGMENT

1 This is a summons for an order under s 69 of the Supreme Court Act. The First Defendant, although served with process, did not appear at the hearing and the Second Defendant, a magistrate of the Local Court, filed a submitting appearance. The hearing therefore proceeded ex parte.

2 The facts lie within a short compass. A court attendance notice was sent to the First Defendant charging him with manslaughter. Upon him attending Wollongong Local Court in response to the notice on 20 March 2007, he was granted conditional bail by the Second Defendant and the case was stood over to a later date, namely 9 May 2007.

3 On 23 March, the Plaintiff applied for a review of the bail decision seeking instead an order that bail be refused. The review application came before the learned magistrate on 29 March. His Honour dismissed it. He also, on the application of counsel for the First Defendant, but against the opposition of Ms Ratcliffe who appeared for the Plaintiff, ordered the Plaintiff to pay the costs of the application subsequently quantified at $1,000. His Honour gave no reasons for this decision to award costs and made no reference to any authority for it.

4 An attempt on 9 May to persuade the magistrate to vacate his costs order in purported reliance upon s 43 of the Crimes (Sentencing Procedure) Act was unsuccessful. During argument the magistrate did not identify any statutory basis for his costs order. He said, however, that he was of the view that the review application was ”more or less frivolous”.

5 The argument on 9 May seemed to focus on the magistrate’s power to review his costs order rather than on the power to make the order in the first place. He held that the application for review based on s 43 of the Crimes (Sentencing Procedure) Act was, in effect, misconceived and with respect, I agree with him. He dismissed the application. When then invited to indicate the basis for the original order he declined to do so.

6 Mr Lancaster, who appeared for the Plaintiff before me submitted that a magistrate has no power to make an order for costs when dealing with an application under the Bail Act. He referred to the well established principle that the Local Court being an inferior court created by statute has only the powers jurisdiction and functions conferred upon it by legislation. It has no inherent powers, although the express powers are taken to imply everything necessary for the exercise of the express powers. ‘Necessary’ has been held to mean ‘not absolutely necessary’ but ‘reasonably necessary’ with reference to the circumstances of the case. It cannot be stretched to encompass what is merely desirable or useful (See Attorney General v Walker (1849) 3 Ex 242 154 ER 833; Pelechowski v Registrar of Court of Appeal (1999) 198 CLR 435)

7 The Bail Act, under s 44(2) and s 48(i)(a)(iv) of which the application for review of bail was made to the Second Defendant, is entirely silent on the subject of costs.

8 Section 62 of the Local Courts Act empowers a Local Court to award costs in “application proceedings” but by virtue of s 36(b) the power does not extend to “any order that may be made in or as a result of criminal proceedings”. In my opinion an application to review a bail order falls within s 36 (1)(b) and is therefore not “application proceedings” within the power to award costs contained in s62 (See the definition of application proceedings in s 4)

9 Other powers invested in magistrates to award costs are contained in sections 116, 117, 118 and sections 213, 214, 215 and 216 of the Criminal Procedure Act. Those sections apply to criminal proceedings but plainly by their terms not to the circumstances of this case, namely an application to review a bail order. Their application is restricted to a jurisdiction to order costs at the conclusion of committal proceedings, in certain circumstances upon the adjournment of committal proceedings, at the conclusion of summary proceedings, and on the adjournment of summary proceedings.

10 A magistrate also has power to grant a certificate under s 2 of the Costs in Criminal Cases Act following an acquittal or discharge in relation to an offence and to grant a certificate under s 6A of the Suitors Fund Act. Neither s 2 of the Costs in Criminal Cases Act nor s 6A of the Suitors Fund Act applies to an application for review of bail.

11 In the result, I am satisfied that a magistrate has no express power to make an order for costs in dealing with a review of bail application. Nor, in my opinion, should such a power be implied. It seems to me that a power to award cost in a bail application is not required for “the effective exercise” of the jurisdiction conferred (Grassby v The Queen (1989) 168 CLR 1 at 16 per Dawson J). Being ”desirable” or “useful” even if such expressions are applicable to this case is not sufficient (RTA v Hayek [2004] NSWSC 575 unreported per Studdert J and DPP v Boykin unreported Wood J 21 June 1994)

12 Accordingly, in my opinion, the learned magistrate erred in law when he made the costs order on 29 March 2007. He had no power to make it.

13 As I have indicated the Plaintiff seeks relief under s 69 of the Supreme Court Act, it being submitted that this is a case where previously the court had jurisdiction to grant a writ of certiorari.

14 The error of law made by the Second Defendant appears on the face of the record and accordingly could, prior to s 69 of the Supreme Court Act have been the subject of a writ of certiorari. In my opinion, the magistrate’s order should be quashed. I think, in the circumstances, particularly having regard to the somewhat misconceived proceedings before the magistrate on 9 May 2007 and the fact that the Defendant did not oppose these proceedings, there should be no order as to costs.

15 I make these order:

1. The award for costs made by the Second Defendant on 29 March 2007 in favour of the First Defendant is quashed.

2. No order as to the costs of these proceedings.