Edmunds v Starling
[2013] WASCA 225
•27 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EDMUNDS -v- STARLING [2013] WASCA 225
CORAM: NEWNES JA
MURPHY JA
MAZZA JA
HEARD: 3 MAY 2013
DELIVERED : 27 SEPTEMBER 2013
FILE NO/S: CACR 205 of 2012
BETWEEN: MATTHEW EDMUNDS
Appellant
AND
KARL JAMES STARLING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :McKECHNIE J
Citation :STARLING -v- EDMUNDS [2012] WASC 14 (S)
File No :SJA 1016 of 2011
Catchwords:
Criminal law and procedure - Appeal against costs order - Interpretation of Official Prosecutions (Accused's Costs) Act 1973 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 4, s 6, s 7, s 14(1)(h), s 20(2), s 20(3)
Criminal Procedure Act 2004 (WA), s 67, s 147
Justices Act 1901-1971 (WA), s 151, s 152, s 190, s 206, s 219
Magistrates Court Act 2004 (WA), s 11(2)
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4, s 5
Result:
Appeal allowed
Costs order set aside only in respect of $9,537 relating to proceedings in Magistrates Court
Category: A
Representation:
Counsel:
Appellant: Mr L M Fox
Respondent: Mr P J Kearney
Solicitors:
Appellant: Director of Public Prosecutions (WA)
Respondent: Rattigan Kearney & Bochat
Case(s) referred to in judgment(s):
C v Marsh [2006] WASC 41 (S)
ECS v Martin [2012] WASC 51
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133
O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992)
Sorrell v Bryant (Commissioner of State Revenue) (Unreported, WASC Library No 980170, 7 April 1998)
Starling v Edmunds [2012] WASC 14
Starling v Edmunds [2012] WASC 14 (S)
Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232; (2010) 41 WAR 477
Williams v Beverley (Unreported, WASC, Library No 980474, 24 August 1998)
Winter v Fleet [2002] WASCA 128
REASONS OF THE COURT: This is an appeal, by a police officer acting in his official capacity, from a costs order made by McKechnie J pursuant to s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (the Act). The appeal is brought pursuant to s 16(2) of the Criminal Appeals Act 2004 (WA).
Background
The appeal to this court arises in this way. McKechnie J upheld Mr Starling's appeal against convictions which had been recorded against him after trial in the Fremantle Magistrates Court. His Honour made formal orders that the appeal be allowed and the convictions 'set aside'. He also ordered that the charges be remitted for retrial before another magistrate: Starling v Edmunds [2012] WASC 14. As it turned out, after the matter was remitted, the parties entered into negotiations as to the facts. In the end, Mr Starling pleaded guilty to the charges in the Magistrates Court. He was fined and spent conviction orders were made. The significance of these events will become apparent in due course.
Upon McKechnie J delivering his decision in the appeal, Mr Starling's counsel sought not just the costs of the appeal, but also the costs of the trial in the Magistrates Court, pursuant to the Act.
Counsel for Mr Edmunds did not oppose the making of a costs order in Mr Starling's favour of the appeal, but opposed the making of an order for the trial.
Mr Edmunds submitted that the power to order costs in favour of an accused who was successful on appeal, in respect of both the appeal and the trial in the court of summary jurisdiction, arose under s 5(4) of the Act. The preconditions of such an order are, first, that the conviction be set aside on appeal and, second, that the appeal court reverse the decision of the summary court. Mr Edmunds submitted that, in the context of this case, this required the appeal court to order an acquittal. As McKechnie J did not order an acquittal, there was no reversal and thus, his Honour had no power to make a costs order in Mr Starling's favour for the trial in the Magistrates Court.
On 30 August 2012, his Honour published his reasons for decision: Starling v Edmunds [2012] WASC 14 (S). His Honour rejected Mr Edmunds' submissions. He made a costs order in favour of Mr Starling for both the appeal and the trial in the Fremantle Magistrates Court.
Mr Edmunds now appeals to this court against McKechnie J's decision on costs. He puts before the court submissions substantially the same as those that were put to McKechnie J and says that his Honour misconstrued s 5(4) of the Act.
Counsel for Mr Starling submitted to this court that McKechnie J was correct. In the alternative, Mr Starling submitted that what happened after the matter was remitted to the Magistrates Court was effectively a reversal and McKechnie J's order should not be disturbed.
McKechnie J's reasoning
After referring to several cases, including Sorrell v Bryant (Commissioner of State Revenue) (Unreported, WASC Library No 980170, 7 April 1998); Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133 and ECS v Martin [2012] WASC 51, his Honour said:
The clear intention of the Official Prosecutions (Accused's Costs) Act in its present form is to allow an accused to claim costs when the accused is successful either at first instance before the magistrate, or when an adverse decision of a magistrate on a conviction is set aside on appeal, whether or not a re-trial is ordered.
Decisions of this court prior to the amendment of the Official Prosecutions (Accused's Costs) Act in respect of the construction of s 4 and s 5, are no longer authoritative in the interpretation of the Act in its present form [16] ‑ [17].
The power to order costs in summary proceedings and appeals therefrom
The power to award costs is statutory: Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178, 193 (Dawson J). Although s 67 of the Criminal Procedure Act 2004 (WA) empowers the court to make a costs order in favour of a successful party in a prosecution in the Magistrates Court, that provision is expressly subject to the Act. With respect to an appeal from a decision of the Magistrates Court, there are provisions in the Criminal Appeals Act relating to costs: see s 14(1)(h), read with s 20(2) and (3). However, when the respondent is a police officer acting in his or her official capacity, no order can be made against the officer under that Act. In the circumstances of this appeal, it is common ground that the only statutory basis for the costs order made by McKechnie J is s 5(4) of the Act.
The issue for determination in this appeal
The issue to be determined in this appeal is the proper construction of s 5(4) and, in particular, what is meant by the phrase which appears in that subsection: 'reversing a decision of the summary court'.
The applicable principles of statutory interpretation
The relevant principles of statutory interpretation are not in doubt. For present purposes an accurate and succinct statement of those principles was made by Martin CJ in Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232; (2010) 41 WAR 477:
It is unnecessary to embark upon a detailed exegesis of the principles of statutory construction before considering the proper construction of s 13 of the SLA [Sale of Land Act 1970 (WA)]. Relevantly to this case, those principles require the court to ascertain the intention of the Parliament to be derived from the words used in the relevant provisions, construed in the context of the statute as a whole, preferring a construction that would promote the purpose or object underlying the statute (Interpretation Act 1984 (WA), s 18) which, in the case of remedial legislation such as the SLA, focuses attention upon the mischief which it was the intention of the Parliament to remedy. Regard may also be had to extrinsic materials (extrinsic in the sense that they are outside the words of the statute) capable of assisting in the construction of the provision, in order to confirm that the meaning of the provision is its ordinary meaning, or to determine the meaning when the provision is ambiguous or obscure, or when its ordinary meaning would lead to a result that is manifestly absurd or unreasonable (Interpretation Act, s 19) [39].
The relevant statutory framework
The Magistrates Court of Western Australia is a court of summary jurisdiction. In its criminal jurisdiction it has the power to, amongst other things, hear and determine simple offences or indictable offences that can be dealt with summarily or any case that, under a written law, is to be dealt with by a court of summary jurisdiction: Magistrates Court Act 2004 (WA) s 11(2).
Where an accused pleads guilty or is found guilty of a charge, the Magistrates Court is empowered to enter a judgment of conviction in respect of that charge. If an accused is found not guilty (other than by reason of unsoundness of mind), the Magistrates Court is empowered to enter a judgment of acquittal: Criminal Procedure Act 2004 s 147.
Under the Criminal Appeals Act, a person aggrieved by a decision of a court of summary jurisdiction, including a decision to convict or acquit an accused or a decision as to costs, may appeal to the Supreme Court against the decision. The Supreme Court, as defined, does not include the Court of Appeal. Thus, such an appeal is to a single judge of the General Division: Criminal Appeals Act s 4, s 6 and s 7. In deciding an appeal, the court may do one or more of a number of things, including:
(a)dismiss the appeal;
(b)allow the appeal;
(c)set aside or vary the decision of the court of summary jurisdiction and sentence imposed, order made or thing done as a result of the decision;
(d)substitute a decision that should have been made by the court of summary jurisdiction;
(e)order a case to be dealt with again by the court of summary jurisdiction, with or without orders to that court as to how or by whom it is to be constituted and as to how it must deal with the case.
The Official Prosecutions (Accused's Costs) Act 1973 (WA)
Prior to the commencement of the Act, a court of summary jurisdiction (then known as the Court of Petty Sessions) had the power to order a complainant to pay a defendant's costs if the complaint was dismissed and to order a defendant to pay a complainant's costs if the defendant was convicted: Justices Act 1902‑1971 (WA) s 151 and s 152. However, a practice had developed in that court of not awarding costs when a police officer was the complainant. On appeal, the Supreme Court was empowered to make such order as to costs as it deemed just, but no order for costs could be made against a justice or a police officer, except in the instance of an unsuccessful appeal brought by a police officer, or a successful police appeal involving, in the court's opinion, a point of law of exceptional public importance: Justices Act s 190, s 206 and s 219.
In 1969, a reference was given to the Law Reform Committee to consider whether it was desirable to alter the law relating to the payment of costs to persons acquitted in prosecutions for criminal offences. The recommendations of the Committee were handed to government in a final report in August 1972. In that report it was noted:
that the Government intends to confine the scheme initially to summary trials and within that area costs would be awarded to acquitted persons except in special circumstances.
In 1973, the Official Prosecutions (Defendants' Costs) Bill, which eventually became the Official Prosecutions (Defendant's Costs) Act, was placed before the Legislative Assembly. In his second reading speech, the Attorney General, the Hon T D Evans, said that the Bill:
provides for financial relief to an accused in a trial held in a Court of Petty Sessions or a Children's Court who is acquitted or who has the charge against him withdrawn, or in cases where the charge is not proceeded with.
The scheme also includes appeals from summary trials and the appellate court may award costs where the defendant is successful by reason of his appeal.
At the conclusion of Mr Evans' speech he said:
On numerous occasions over the past few years demands have been made for reform to end the injustice suffered by an acquitted person who has not been compensated. It is submitted that this Bill, which has been drafted as a result of considerable research and consultation with responsible sectors of the community, is a piece of legislation vital to the protection of the personal rights and freedom of the citizens within our community (Western Australian Parliamentary Debates, vol 200, 1973, No 3 at 3386).
Since it commenced operation in 1973, the Act has been amended. In 2004, it was renamed the Official Prosecutions (Accused's Costs) Act 1973. In that year, s 4(2), which defined who was a successful defendant, was repealed. The repealed section stated that a defendant is successful if a charge 'is dismissed, withdrawn, or struck out, or a conviction thereon is quashed'.
The scheme of the Act
The Act applies to persons charged with an offence the subject of an official prosecution. An official prosecution is defined in s 4(1) to mean:
[P]roceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of his office, and includes proceedings on appeal therefrom.
A police officer acting in that capacity is one of a number of persons or entities who are classed as a public official: s 4(1).
There is no dispute that the proceedings in the Magistrates Court and before McKechnie J were official prosecutions.
Section 5 provides that in certain circumstances a successful accused is entitled to costs. That section reads:
5. Successful accused entitled to costs
(1)Subject to this Act, a successful accused is entitled to his costs.
(2)Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.
(3)Where an accused is successful by reason of a decision of the appeal court, the appeal court shall make an order as to the amount of his costs in the appeal court.
(4)Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
(5)…
The question of who is a successful accused for the purposes of s 5 is answered by s 4(2). Section 4(2) reads:
4. Interpretation
…
(2)An accused -
(a)subject to paragraph (c), is successful if -
(i)he is acquitted of the charge, other than on account of unsoundness of mind;
(ii)he is discharged from the charge under section 128(2) or (3) of the Criminal Procedure Act 2004;
(iii)the charge is dismissed for want of prosecution; or
(iv)his conviction of the charge is set aside;
In Mastrangelo v Reynolds, Malcolm CJ (with whom Wallwork J and Einfeld AJ agreed) held that unless an accused comes within the definition of successful defendant (as it then was, now successful accused) in s 4(2), there is no entitlement to costs pursuant to s 5. Thus, not all appellants successful on appeal are successful accused within the definition of s 4(2). An obvious example is an appellant successful in an appeal against sentence.
In the present case, Mr Starling is a successful accused because his convictions were set aside within the meaning of s 4(2)(a)(iv).
Section 6 of the Act provides that a court may, in certain circumstances, including where there has been disentitling conduct on the part of the accused, not make an order or make only a partial order for costs. It is not suggested that this section applies in any way to Mr Starling.
Sections 5(3) and 5(4) of the Act
Both s 5(3) and s 5(4) of the Act refer to the circumstance where an accused is successful by reason of a decision of the appeal court. Having regard to the definition of a successful accused in s 4(2)(a)(iv), an accused who is successful by reason of a decision of the appeal court is a reference to an appeal court setting aside a conviction entered in the Magistrates Court.
Each subsection allows an appeal court to make an order for costs in the appeal court. What differentiates s 5(4) from s 5(3) is that s 5(4) refers to when the appeal court reverses a decision of the summary court. Only if that occurs, shall the appeal court make a costs order both in the appeal court and in the summary court.
The authorities
Mr Edmunds' submissions are supported by Parker J's decision in Sorrell v Bryant. The facts of that case are, in substance, indistinguishable from the facts of the present case. In that case, Parker J had previously set aside a conviction recorded by a magistrate and remitted the matter to the Court of Petty Sessions with a direction to the learned magistrate to hear and determine the case according to law. The appellant then sought an order for costs of the appeal and the trial at which she had been convicted. Parker J held that s 5(4) of the Act was not applicable because an order remitting the matter to the Court of Petty Sessions was not a reversal. His analysis was as follows:
It appears to me that s 5(4) of [the] Act is directed to situations such as where a conviction is quashed and an acquittal is ordered on appeal, or of course vice versa. In such situations the order made on appeal results in a reversal of the outcome of the proceedings below. In the present case, however, while it is true that the decision below has been set aside, no acquittal has been ordered. Instead, the complaint is remitted to the Court of Petty Sessions so that the learned Magistrate can complete the hearing according to law. There has not yet been a valid determination of the complaint. In these circumstances it does not appear open to me to make any order with respect to the costs of the proceedings, so far, before the Court of Petty Sessions.
It seems to me to be the intention of the Official Prosecutions (Defendants' Costs) Act that in the present circumstances, on the completion of the hearing of the complaint which is now remitted to the learned Magistrate, the Magistrate will have to make a decision with respect to the total costs incurred in respect of the hearing of that complaint, ie both the proceedings before there was the appeal to this Court and the resumed proceedings to complete the hearing of the complaint pursuant to the order now made by this Court (4).
Parker J adopted the same reasoning in Williams v Beverley (Unreported, WASC, Library No 980474, 24 August 1998). His Honour's reasoning was also followed by single judges in Winter v Fleet [2002] WASCA 128 and C v Marsh [2006] WASC 41 (S).
Importantly for present purposes, in Mastrangelo Malcolm CJ (Wallwork J & Einfeld AJ agreeing) said:
A further explanation for the differences in wording between subs 3 and subs 4 of s 5 of the Act is that the former applies where a defendant's appeal succeeds, but the charges are remitted to the [summary court] for a retrial, whereas subs 4 applies where the defendant's appeal results in the charge being dismissed or quashed and no retrial is ordered [39].
Reference was also made, in Mr Edmunds' written submissions before this court, to Murray J's decision in O'Dea v Fletcher (Unreported, WASC, Library No 920666, 20 November 1992). That case is factually different to the present case. There, charges brought against the appellant were dismissed by the magistrate. The appellant sought the costs of the trial. The magistrate declined to order costs under the Act, stating that there was a discretion not to make an order. His Honour allowed the appeal, finding that, in the absence of disentitling conduct, no discretion existed to refuse costs. The appellant then sought the costs of the appeal pursuant to either s 5(3) or s 5(4) of the Act. Murray J found that the appellant was not a successful defendant as defined by s 4(2), as it then was, and did not make an order for the costs in the appeal. In doing so, he made the following observation by way of obiter dictum:
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, s 5(3) and/or s 5(4). In my opinion those provisions do not confer power upon 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 [s 5(3)], and the situation where the defendant, not 'successful' as defined in s 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 [s 5(4)].
His Honour's understanding of s 5(3) as applying, in effect, only to an unsuccessful prosecution appeal against an acquittal, does not reflect the broad statutory language of the subsection. Nevertheless, his Honour's interpretation of the effect of s 5(4) is in accordance with the statutory language. It is relevant to observe that, unlike Parker J in Sorrell v Bryant, Murray J was not required to consider the meaning of the expression 'reversing a decision of the summary court' in s 5(4) of the Act and therefore it is unsurprising that he did not deal with the subject.
Although O'Dea v Fletcher was cited with apparent approval by Malcolm CJ in Mastrangelo, it was referred to for the proposition that s 5(4) does not create an additional category of 'success' beyond those defined in s 4(2): Mastrangelo [38] and [40].
We note that the passage from O'Dea v Fletcher mentioned above [34] was recently referred to with approval by Hall J in ECS v Martin. In that case, the issue for Hall J to resolve was whether costs could be ordered under s 5(3) or s 5(4) of the Act after a successful appeal by an accused against the quantum of costs awarded to him by a magistrate. His Honour found, consistently with the authorities of Mastrangelo and O'Dea v Fletcher, that the appellant was not entitled to his costs because he was not a successful accused for the purposes of s 4(2) of the Act. The interpretation of the expression in s 5(4), 'reversing a decision of the summary court', was not considered.
The meaning of the word 'reverse' in s 5(4) of the Act
Section 4 and s 5 of the Act should be read together. Section 4 defines who a successful accused is, and s 5 sets out the circumstances in which a successful accused is entitled to costs and what costs they are entitled to.
Section 4(2)(a)(iv) speaks of the setting aside of a conviction. Section 5(4) speaks of reversing a decision. The use by Parliament of the expression 'set aside' and the word 'reversing' in two interrelated sections must be assumed to be deliberate and intended to convey different meanings. That is particularly so in the context that in an appeal against conviction, an appeal court may order an acquittal or may set aside a conviction and order a retrial. In the latter case, the result of the retrial may be the same as or different from the original trial.
As noted earlier, s 5(3) and s 5(4) each speaks of an accused being 'successful' (relevantly by having his conviction 'set aside'). However, s 5(4) only applies where the accused is successful 'by reason of' the appeal court 'reversing' a decision of the summary court. The word 'reversed' is an important feature of the text in s 5(4). While s 5(3) operates 'by reason of a decision', ie, with reference to the fact of a decision by an appeal court, s 5(4) appears to draw specific attention to the nature of the appeal court's decision which results in the accused being 'successful'. In other words, the entitlement of an accused under s 5(3) to the costs of the appeal depends simply upon the accused being 'successful' (as defined in s 4(2)) on the appeal. But the entitlement of an accused under s 5(4) to the costs of both the appeal and the summary court proceedings depends upon the accused not only being 'successful' on the appeal, but being successful 'by reason of the appeal court reversing a decision of the summary court'.
In its ordinary meaning, the word 'reverse' denotes an opposite position or direction. The opposite to a judgment of conviction is a judgment of acquittal. In our opinion, the use of the word 'reversing' in s 5(4) of the Act indicates that s 5(4) applies where the appeal court has substituted the magistrate's judgment of conviction with a judgment of acquittal. It is in these circumstances that a successful accused whose conviction has been set aside can recover the costs of both the appeal and the proceedings in the summary court.
On the other hand, s 5(3) operates when, relevantly, an accused is successful by virtue of the appeal court setting aside a conviction, and, instead of reversing the decision, orders that the case be dealt with again by the court of summary jurisdiction. In that situation, the accused is entitled to the costs of the appeal only. The question of whether the accused is entitled to the costs of the original trial will depend on the outcome of the retrial.
With great respect to McKechnie J, having regard to the statutory language, we are unable to see that Parliament intended that an accused successful on appeal should recover the costs of the trial in the Magistrates Court, whether or not a retrial is ordered. Moreover, this would be an odd result in a case where a retrial is ordered, given that, at that point, there has been no valid determination of the charge and there remains the possibility that the appellant will be convicted. His Honour's interpretation does not give the word 'reversing' in s 5(4) its ordinary meaning. If his Honour's interpretation is correct, the word 'reversing' would mean no more than the expression 'set aside'.
We note that his Honour indicated that the amendment made to s 4(2) (see [20] above) rendered decisions decided before the amendment no longer authoritative. In our respectful view, there was nothing in the terms of the amendment to s 4(2) which would require or support that conclusion.
Conclusion and orders
It follows from what we have said that, on the facts of the present case, unless McKechnie J ordered an acquittal, Mr Starling was not entitled to an order for costs of the trial in the Fremantle Magistrates Court, and to this extent his Honour's decision was, with great respect, erroneous.
Mr Starling's alternative argument that what later occurred in the Fremantle Magistrates Court was, in effect, a reversal, is without merit. The reality is that Mr Starling was found guilty at trial and ultimately pleaded guilty at the retrial. Even if the facts alleged against him were different in the subsequent proceedings, the outcome was the same and cannot reasonably be said to amount to a reversal.
The appeal must be allowed.
We would make the following orders:
1.The appeal is allowed.
2.McKechnie J's costs order is set aside, but only in respect of the sum of $9,537 which related to the proceedings in the Magistrates Court.
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