ECS -v- MARTIN [2012] WASC 51

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 51
Case No:	SJA:1092/2011	Heard:	13 FEBRUARY 2012
Coram:	HALL J	Delivered:	13/02/12
No of pages:	8	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed Costs ordered by magistrate set aside and in lieu thereof costs of $2,500 ordered No order as to costs of the appeal
Category:	B
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Parties:	ECS CHRISTOPHER ANDREW MARTIN
Catchwords:	Criminal law Charge against accused dismissed Costs Official Prosecutions (Accused's Costs) Act 1973 (WA) Whether magistrate erred in determining costs Costs of appeal Whether appellant 'successful' for the purposes of the Accused's Costs Act
Legislation:	Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2) Criminal Procedure Act 2004 (WA), s 67 Official prosecutions (Accused's Costs) Act 1973 (WA), s 3, s 4, s 5, s 6, s 9
Case References:	Bolton v Stange [2001] WASCA 34 C v Marsh [2006] WASC 41(S) Fairhead v Bathurst [2008] WASC 209 Fewster v Briggs [2000] WASCA 36 Haynes v Hughes [2001] WASCA 169 M (a child) v The Queen (1994) 13 WAR 306 Mastrangelo v Reynolds [2001] WASCA 347 O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992) Russell v Maguire (Unreported, WASC, Library No 940108, 3 March 1994) Small v Walker (Unreported, WASC, Library No 577, 29 January 1985) Taylor v WA Police [2007] WASC 158

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : ECS -v- MARTIN [2012] WASC 51 CORAM : HALL J HEARD : 13 FEBRUARY 2012 DELIVERED : 13 FEBRUARY 2012 FILE NO/S : SJA 1092 of 2011 BETWEEN : ECS

Appellant

AND

CHRISTOPHER ANDREW MARTIN

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : DEPUTY CHIEF MAGISTRATE E A WOODS

File No : PE 10757 of 2011

Catchwords:

Criminal law - Charge against accused dismissed - Costs - Official Prosecutions (Accused's Costs) Act 1973 (WA) - Whether magistrate erred in determining costs - Costs of appeal - Whether appellant 'successful' for the purposes of the Accused's Costs Act

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2)

Criminal Procedure Act 2004 (WA), s 67
Official prosecutions (Accused's Costs) Act 1973 (WA), s 3, s 4, s 5, s 6, s 9

Result:

Leave to appeal granted

Appeal allowed
Costs ordered by magistrate set aside and in lieu thereof costs of $2,500 ordered
No order as to costs of the appeal

Category: B

Representation:

Counsel:

Appellant : Mr S A Gabriel

Respondent : Ms R B Phillips

Solicitors:

Appellant : Stephen Gabriel

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Bolton v Stange [2001] WASCA 34
C v Marsh [2006] WASC 41(S)
Fairhead v Bathurst [2008] WASC 209
Fewster v Briggs [2000] WASCA 36
Haynes v Hughes [2001] WASCA 169
M (a child) v The Queen (1994) 13 WAR 306
Mastrangelo v Reynolds [2001] WASCA 347
O'Dea v Fletcher (Unreported, WASC, Library No 920666,…

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 ECS v Martin

Details

AGLC: ECS v Martin [2012] WASC 51
Case: [2012] WASC 51
Decision Date: 13 FEBRUARY 2012

CaseChat Overview and Summary

The matter of ECS v Martin involved the appellant, who was charged with a criminal offence. The case was heard in the District Court of Western Australia, where the appellant appealed against the costs order made by the magistrate following the dismissal of the charges. The appellant contended that the magistrate had erred in determining the costs and sought a review of the matter. The appellant argued that they should be considered "successful" for the purposes of the Official Prosecutions (Accused's Costs) Act 1973 (WA) as the charges against them were dismissed, and therefore they were entitled to the costs of the appeal.

The primary legal issue before the court was whether the magistrate erred in determining the costs under the Accused's Costs Act. The court had to consider the relevant provisions of the Act and the circumstances of the case to determine whether the appellant was indeed "successful" in the appeal, as defined by the Act. The court also had to consider whether the appellant was entitled to the costs of the appeal if they were deemed successful.

The court found that the magistrate had indeed erred in determining the costs. The court held that the appellant could be considered "successful" for the purposes of the Act, as the charges against them were dismissed. The court further held that the appellant was entitled to the costs of the appeal, as they were successful in the appeal. The court set aside the costs ordered by the magistrate and ordered costs of $2,500 instead. The court did not make any order as to the costs of the appeal.

Orders

Orders of the court

Leave to appeal granted

Appeal allowed

Costs ordered by magistrate set aside and in lieu thereof costs of $2,500 ordered

No order as to costs of the appeal

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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