ECS v Martin
[2012] WASC 51
•13 FEBRUARY 2012
ECS -v- MARTIN [2012] WASC 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 51 | |
| Case No: | SJA:1092/2011 | 13 FEBRUARY 2012 | |
| Coram: | HALL J | 13/02/12 | |
| 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 | ||
| B | |||
| PDF Version |
| 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
- 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
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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, 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
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- HALL J:
(This judgment was delivered orally on 13 February 2012 and has been edited from the transcript)
Introduction
1 This is an appeal from the decision of a magistrate in regard to costs in a criminal proceeding. The appellant was the subject of a charge that was discontinued by the police and therefore dismissed. In those circumstances he was a successful defendant with an entitlement to costs.
2 An application for costs in the sum of $2,500 was made by the appellant's solicitor on the dismissal of the charge. The magistrate refused that application, instead making a costs order in favour of the appellant in the sum of $1,000. The appellant submits that the magistrate failed to properly exercise her discretion regarding costs, in particular that in awarding the sum of $1,000 the magistrate failed to take into account all of the costs properly incurred by the appellant in defending the charge up until the point it was dismissed.
3 The respondent concedes that the magistrate erred by not allowing costs in respect of an appearance by counsel on 2 June 2011. The respondent also concedes that an amount of $2,500 was a reasonable sum for an award of costs to the appellant in the Magistrates Court. In these circumstances it was open to the parties to resolve this appeal by a consent order: See Criminal Procedure Rules 2000 (WA) r 70 and r 73.
4 That course would have obviated the need for a hearing and saved the parties further and unnecessary expense. It would appear that it was not adopted because the parties were not in agreement about the costs of the appeal and because it was thought to be inappropriate to agree a quantum of costs and that this should be left to the court.
5 Of course, if the appeal had been resolved by agreement at an early stage as it would seem it could have been, any appeal costs would have been negligible. Instead what has occurred is that the appellant has pursued an appeal to a hearing and thereby incurred much greater costs on the appeal for the purpose largely, it would seem, of seeking to vindicate his right to those same costs.
6 An independent observer may think that this argument suffers from the vice of being self referential. There is something offensive to common sense about incurring expenses for the purpose of recovering
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- them. Whilst the court is concerned with principle, it is also concerned with practicality.
The facts
7 The background to this matter is that on 22 January 2011 the appellant was charged with failing to comply with a move-on order contrary to s 153(1) of the Criminal Investigations Act 2006 (WA). He sought legal advice from his solicitor on 2 February 2011. The charge was mentioned in the Magistrates Court on 4 February 2011 and adjourned because the appellant was then in Melbourne.
8 At a further mention on 14 February 2011 the appellant entered a plea of not guilty and the matter was set down for a trial on 2 June 2011. On 2 June 2011 the matter was further adjourned. It would seem that the Magistrates Court on that day was unable to hear the matter in the morning due to other commitments and the appellant's counsel had an engagement in another court in the afternoon.
9 On 29 June 2011 the matter was discontinued by the prosecution and the charge was dismissed. The appellant's counsel then applied for costs in the sum of $2,500. The magistrate did not accept that the lengthy written submissions prepared by the appellant's solicitor could be entirely attributed to work on this matter. Her Honour said:
You have those submissions for every matter you try and do under this section. I am not accepting that there has been that cost incurred.
10 There was then an exchange with counsel and her Honour then said:
His trial date was fixed on 2 June. It did not go on on that date because you were not available.
11 It would appear from this that one of the matters her Honour took into account in rejecting the costs sought was her view that the matter had been unnecessarily adjourned on 2 June 2011 due to the unavailability of counsel.
Merits of the appeal
12 On this appeal the respondent accepted that defence counsel had appeared on 2 June 2011 and had been in attendance until at least lunchtime that day. It was also accepted that counsel's appearance on that day was reasonably necessary and that costs in respect of it were reasonably incurred. Accordingly, some allowance should have been made for those costs and in failing to do so the magistrate erred.
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13 Turning to the question of costs in criminal proceedings in the Magistrates Court, there is no dispute that the power to award costs in criminal proceedings in the Magistrates Court arises from s 59 of the Criminal Procedure Act and from the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Accused's Costs Act).
14 A successful accused is generally entitled to his costs. An accused person is successful if, amongst other things, the charges against him or her are dismissed for want of prosecution: s 67(1) of the Criminal Procedure Act and s 5(1) of the Accused's Costs Act.
15 A court may order that a successful accused is not entitled to all or part of his or her costs in certain circumstances: s 6 of the Accused's Costs Act. However, it is not suggested that any of these circumstances arise here.
16 Any expenses claimed must have been reasonably necessary: s 4(1) of the Accused's Costs Act. They must also not exceed the amounts provided for in the Legal Practitioners Official Prosecutions (Accused's Costs) Determination of 2010: Accused's Costs Act, s 5(5) and the Legal Practitioner's Act s 252.
17 The appellant's solicitor has provided an affidavit detailing the work he undertook. I have some reservations that all of that work was reasonably necessary. The charge that the appellant faced was a simple one and the alleged facts were straightforward. However, the respondent accepts that $2,500 was a reasonable claim and that it was within the limits set out in the 2010 Determination.
18 In those circumstances I am satisfied that the appropriate course is to grant leave to appeal, allow the appeal, set aside the costs order made by the Magistrate and substitute an order that the appellant be entitled to costs of $2,500 under the Accused's Costs Act.
Costs of the appeal
19 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) provides that in deciding an appeal this court may make an order as to the costs of the appeal. However, if the respondent is a police officer acting in an official capacity, the court must not make an order that the officer is to pay any costs: s20(2) of the Criminal Appeals Act.
20 In these circumstances any entitlement to costs of the appeal, like the costs in the Magistrates Court, can only arise under the Accused's Costs
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- Act. Any such entitlement depends upon the appellant being a successful party. At first blush this would not seem to be problematic. Since the appeal has been allowed it would seem obvious that the appellant is successful. However, whether an appellant is successful for the purposes of the Accused's Costs Act is not necessarily determined by the outcome of the appeal. For example, a convicted person who is successful on an appeal against sentence is not considered to be 'successful' in terms of the Accused's Costs Act. Such appellants have been held not to be entitled to their appeal costs: See Mastrangelo v Reynolds [2001] WASCA 347.
21 The respondent submits that this court does not have power to make an order for costs of the appeal and cites O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992). That case was concerned with an appeal against the refusal of a magistrate to award costs on the dismissal of criminal charges. The appeal was allowed and there was an issue as to whether there was a power to award costs of the appeal.
22 Because the respondent in that case was also a police officer and there was a provision then existing to the same effect as s 20(2) of the Criminal Appeals Act, the only possible source of any power to award costs was the Official Prosecutions (Defendant's Costs) Act as the Accused's Costs Act was then entitled. Murray J noted that the relevant provisions were s 5(3) and s 5(4).
23 His Honour then said:
As to the costs of the appeal, it is submitted that I have the power to make an order for costs under the Official Prosecutions (Defendant's Costs) Act, section 5(3) and/or section 5(4). In my opinion those provisions do not confer power on me in the circumstances of this appeal. They are designed respectively for the situation where a defendant, successful by the decision of the Court below, has that status confirmed by the decision of the Appeal Court, and the situation where a defendant not successful as defined in section 4(2) by the decision of the Court below, has that status conferred upon him by the decision of the Appeal Court reversing the decision of the summary court.
24 The appellant has sought to distinguish O'Dea v Fletcher by referring to a number of other judgments, namely Small v Walker (Unreported, WASC, Library No 577, 29 January 1985); Russell v Maguire (Unreported, WASC, Library No 940108, 3 March 1994) which in fact adopted O'Dea v Fletcher; M (a child) v The Queen (1994) 13 WAR 306; Fewster v Briggs [2000] WASCA 36; Haynes v Hughes [2001] WASCA 169; Bolton v Stange [2001] WASCA 34; Mastrangelo v
(Page 7)
- Reynolds that I referred to earlier; C v Marsh [2006] WASC 41(S); Taylor v WA Police [2007] WASC 158; and Fairhead v Bathurst [2008] WASC 209.
25 While some of these cases referred to s 5(3) and s 5(4), it is not apparent that the circumstances were the same in any case in which the interpretation of those subsections was a seriously contested issue. Indeed, in Mastrangelo v Reynolds there was reference to O'Dea v Fletcher and Malcolm CJ indicated a preference for the reasoning in that case.
26 The resolution of this question depends entirely on the interpretation of s 5(3) and s 5(4) of the Accused's Costs Act. A successful defendant is defined in s 4 of the Act. There is no doubt that the appellant was successful in the Magistrates Court. The question then is whether that characterisation automatically entitles him to the costs of the appeal. In my view that depends upon whether the appellant has become successful 'by reason of' the appeal proceedings. It is clear he has not.
27 He was 'successful' in terms of the Act by reason of dismissal of the charges in the Magistrates Court. The appeal proceedings related solely to the issue of costs in the Magistrates Court. The appeal did not change or vary in any respect the appellant's position as a successful defendant.
28 Whilst the Accused's Costs Act is intended to benefit those who have charges against them dismissed in a Magistrates Court, it has always contained limitations. See for example s 4 in regards to costs relating to indictable charges.
29 There is no right at common law to costs in criminal proceedings. Any such right is a creature of statute and depends entirely upon the terms of the statute. Accordingly a claim for costs in circumstances such as the present must always depend upon the terms of the Act. There is, in my view, no ambiguity about s 5(3) and s 5(4) and they require that the appeal be one that in itself results in the acquittal or confirmation of an acquittal of the appellant. That is not this case.
30 Section 9 of the Act has been referred to, however, in my view that does not take the matter any further. Section 9 deals with the issue of a certificate in circumstances where an order for costs has been made. It presumes that the power to make an order exists. In this case, for the reasons that I have given, there is no such power. That conclusion accords with the decision of Murray J in O'Dea v Fletcher.
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31 There is no need, given the clear terms of the Act, to seek justification for the outcome in policy considerations. Nevertheless, it is not difficult to understand why the legislature may have wished to confine the circumstances in which a successful appellant could obtain costs. It may well be that costs arguments in some circumstances could be disproportionate in their significance to the costs that might be incurred in pursuing appeal proceedings. The fact that costs of any appeal could not be recovered would act as a practical deterrent to bring appeals other than in cases that clearly merited it.
Conclusion
32 The orders of the court will be that in respect of the appeal, leave to appeal is granted. The appeal is allowed. The magistrate's order as to costs is set aside and there will be an order that the appellant be awarded costs of the Magistrates Court proceedings of $2,500 under the Accused's Costs Act. There will be no order as to the costs of the appeal.
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