Garlett v Dimer
[2003] WASCA 127
•25 JUNE 2003
GARLETT -v- DIMER [2003] WASCA 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 127 | |
| Case No: | SJA:1136/2002 | 10 JUNE 2003 | |
| Coram: | SCOTT J | 25/06/03 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JEREMY JAMES GARLETT CHRISTOPHER THOMAS DIMER |
Catchwords: | Criminal law and procedure Crown appeal against costs awarded following dismissal of complaint Onus on Crown to establish all elements of charge beyond reasonable doubt Whether respondent in exercising his right to silence and failing to provide particulars of defence should forfeit his entitlement to costs |
Legislation: | Criminal Code, s 371A Official Prosecutions (Defendants' Costs) Act 1973, s 6(1)(b), s 9 |
Case References: | Graham v Ferguson, unreported; SCt of WA; Library No 960606; 17 October 1996 Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998 Leone v McKenzie [2002] WASCA 200 Mancini v Ward, unreported; SCt of WA; Library No 970182; 28 April 1997 Singh v Singh, unreported; SCt of WA; Library No 930187; 8 April 1993 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
CHRISTOPHER THOMAS DIMER
Respondent
Catchwords:
Criminal law and procedure - Crown appeal against costs awarded following dismissal of complaint - Onus on Crown to establish all elements of charge beyond reasonable doubt - Whether respondent in exercising his right to silence and failing to provide particulars of defence should forfeit his entitlement to costs
Legislation:
Criminal Code, s 371A
Official Prosecutions (Defendants' Costs) Act 1973, s 6(1)(b), s 9
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr B E H Tooker
Respondent : Mr M J Aulfrey
Solicitors:
Appellant : State Director of Public Prosecutions
Respondent : Ian Hope
Case(s) referred to in judgment(s):
Graham v Ferguson, unreported; SCt of WA; Library No 960606; 17 October 1996
Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998
Latoudis v Casey (1990) 170 CLR 534
Leone v McKenzie [2002] WASCA 200
Mancini v Ward, unreported; SCt of WA; Library No 970182; 28 April 1997
Singh v Singh, unreported; SCt of WA; Library No 930187; 8 April 1993
Case(s) also cited:
Nil
(Page 3)
1 SCOTT J: The appellant (complainant) has appealed against an order made by a stipendiary Magistrate in the Court of Petty Sessions at Perth to award to the respondent the sum of $400 under s 9 of the Official Prosecutions (Defendants' Costs) Act 1973 ("the Official Prosecutions Act") following the dismissal of a complaint in that Court.
2 The respondent was charged by complaint which alleged that on 9 August 2001 at Tuart Hill he stole a motor vehicle within the meaning of s 371A of the Criminal Code, namely, Ford sedan registered number 6OD-692, the property of Remo Biancotti.
3 The circumstances surrounding the charge were that on 9 August 2001 police attached to the Mirrabooka police station, who were travelling in a marked police vehicle, saw the vehicle referred to in the complaint travelling along Alexander Drive near Central Avenue. The police checked the registration number of the vehicle and ascertained that it was stolen. The police officers pursued the vehicle and eventually stopped it in Tuart Hill on Cape Street.
4 The police alighted from the police vehicle and spoke with the people who were travelling in the stolen vehicle. The respondent was not the driver of the vehicle.
5 One of the police officers, the appellant, an Aboriginal police liaison officer attached to the Mirrabooka police station, spoke to the respondent and asked him whether he knew that the vehicle had been stolen. He said that the respondent replied, "Yes, bro, I know." The respondent was then cautioned and conveyed to the Mirrabooka police station for further inquiries. The appellant spoke to the respondent in the charge room of the police station and explained to him the process of a video-recorded interview. The respondent, however, declined to participate in a video interview and was subsequently charged.
6 It was revealed at trial that there were four people in the vehicle at the time it was stopped. They were identified as the respondent, Patrick Narrier and two other people. The appellant testified that Patrick Narrier was driving the vehicle at the time that it was stopped.
7 The appellant said that Mr Narrier admitted to police that the vehicle was stolen.
8 The appellant then spoke to the respondent, as I have already indicated, and the respondent admitted that he knew the vehicle was stolen.
(Page 4)
9 In cross-examination the appellant agreed that he never asked the respondent whether he knew the vehicle was stolen when he first got into it.
10 The appellant also agreed that the vehicle was being driven in a proper and lawful manner at the time it was followed by the police car.
11 Further, in cross-examination the appellant said that the locking barrel of the vehicle was damaged and the dipstick for the oil was inside the car.
12 The respondent gave evidence and testified that on 9 August 2001, the date of the alleged offence, he and another person whom he identified as "Michael" went for a walk. The respondent said that his uncle, Patrick Narrier, showed him some keys and then the two of them walked around the corner to a car. He said that Mr Narrier told him it was his car and so he "jumped in".
13 The respondent said that he never saw Mr Narrier put the keys into the ignition because he was trying to grab the seatbelt which was jammed. He said by the time that he got the seatbelt over his body the car had already started.
14 In cross-examination the respondent said that he never asked Mr Narrier how he managed to purchase the car, but he knew that he was not working at the time. When asked whether he thought that Mr Narrier might have stolen the vehicle, he said, "I wouldn't have a clue."
15 The respondent also said that in the course of the driving there was no discussion as to whether the vehicle was stolen and he never had any idea that it was stolen.
16 The respondent said that on the way out of town his uncle who was driving stopped the vehicle and picked up two other people.
17 The respondent said that when asked by the police whether he realised the car was stolen, he did respond, "Yes, I know bro." The respondent said that he answered in that form because he was stunned. He had just been released from gaol and he was thinking, "I'm back again."
18 The respondent's evidence was that he only realised that the car was stolen when the police stopped it and when his uncle who was driving said to him at the last minute that the car was stolen.
(Page 5)
19 In the course of addressing the Magistrate the prosecutor conceded that the evidence was not strong enough to sustain a conviction. The prosecutor, however, sought to resist an order for costs in favour of the respondent because the respondent had never advised the prosecution of the defence. The prosecutor said that had that explanation been given, the prosecution may well not have proceeded.
20 His Worship considered the question of costs and after referring to authorities said:
"Now, in this particular case, what has the defendant done? Well, the defendant has chosen to remain silent. That is his right. He hasn't actually done anything to cause a prolongation of this matter or indeed, the institution of these proceedings as such. In fact, and I don't want to be unkind upon the prosecution witness, but had the proper question been asked in relation to the defendant's state of mind at the time, then the case would have been stronger for the prosecution, and wouldn't have folded as it has in this particular instance. I take the view that really the defendant has done no more in this case, other than to exercise his legal rights, that is to remain silent, and that cannot be fettered, and he's given his explanation, and in view of his explanation, the charge against them [sic] has been dismissed, and in my view, he's done nothing per se which would disentitle him to his costs."
21 His Worship then awarded the respondent the sum of $400 pursuant to s 9 of the Official Prosecutions Act.
22 On 16 December 2002 Wheeler J granted the appellant an order for leave to appeal on the grounds that:
"(a) The learned Stipendiary Magistrate erred in not ordering pursuant to s 6(1)(b) of the Official Prosecutions (Defendants' Costs) Act 1973 that the respondent was not entitled to his costs because he has done or caused to be done or has omitted or caused to be omitted something (other than an act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings.
(Page 6)
- Particulars
(i) the respondent did not give an innocent explanation that he did not know that the vehicle was stolen until he gave evidence on oath in the proceedings on 6 November 2002;
(ii) the learned Stipendiary Magistrate erroneously took into account an irrelevant consideration namely that the proper question had not been asked by the police at the time before the respondent was cautioned and exercised his right to silence;
(iii) the learned Stipendiary Magistrate erroneously concluded that because the respondent had exercised his legal right to remain silent he did not fall within s 6(1)(b) of the Official Prosecutors "(Defendants' Costs) Act 1973.
(iv) in any event it was not open to the learned Stipendiary Magistrate having regard to the material before him to find that the respondent did not fall within s 6(1)(b) of the Official Prosecutions (Defendants' Costs) Act 1973."
23 In dealing with the grounds of appeal, it is important to note that after the vehicle was stopped and when the respondent was first spoken to, he was never questioned as to the time at which he realised that the vehicle was stolen.
24 In my view, it should have been apparent to the prosecution, that one of the elements of the charge which the prosecution had to establish beyond reasonable doubt in order for the charge to be sustained, was that the respondent knew that the vehicle was stolen at the time at which he used the vehicle by travelling in it.
25 Section 371A of the Criminal Code, pursuant to which the respondent was charged, provides:
"371A. Special case: Motor vehicles
(1) A person who unlawfully -
(a) uses a motor vehicle -
(Page 7)
- …
without the consent of the owner or the person in charge of that motor vehicle, is said to steal that motor vehicle."
27 The prosecution sought to establish that element of the offence by relying upon the respondent's admission when the vehicle was stopped. That admission has been set out earlier in these reasons. In my view, the admission was ambiguous. The admission by the respondent that he knew the vehicle was stolen did not establish the time at which he acquired that knowledge. The appellant never asked the respondent when he first realised that the vehicle was stolen and, had he done so, it is at least possible that the charge the subject of the appeal would never have been laid. That was a deficiency in the prosecution case which, in my opinion, should have been evident to the prosecutor from the outset.
28 I would also point out that the respondent gave evidence and, as I have indicated, was cross-examined on his evidence. In other words, even after the respondent's evidence-in-chief was made known to the prosecutor, the prosecution continued with the case. In those circumstances, it is not possible to determine what course the prosecuting authorities would have taken had they been advised pre-trial of the nature of the defence which the respondent was proposing to run at trial. Whilst the prosecutor said to his Worship, as I have indicated, that had the defence been known to the prosecution, the prosecution "may well not have proceeded", that is by no means certain.
29 The more important issue in this appeal is whether the respondent, by exercising his right to remain silent when asked to participate in a video-recorded interview and by failing to provide particulars of his defence to the prosecuting authorities, should forfeit his entitlement to costs. In order to examine that issue it is necessary to turn to the relevant
(Page 8)
- provisions of the Official Prosecutions Act to which I have earlier referred.
30 Section 5 provides:
"5. Successful defendant entitled to costs
(1) Subject to this Act, a successful defendant is entitled to his costs.
(2) Where a defendant 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 defendant 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."
"6. Court may revoke or reduce defendant’s entitlement to costs
The Court may order that a successful defendant is not entitled to his costs or part thereof if -
(a) the Court, having found the defendant guilty, disposes of the charge without recording a conviction;
(b) he has done or caused to be done or has omitted or caused to be omitted something (other than an act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings; or
(c) he has done or caused to be done or has omitted or caused to be omitted something during the course of proceedings or in the conduct of the defence or appeal calculated to prolong the proceedings unnecessarily or cause unnecessary expense."
(Page 9)
32 An examination of the law in relation to these provisions can conveniently be commenced by reference to Latoudis v Casey (1990) 170 CLR 534, per Toohey J, at 565:
"Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them. To return to the examples given earlier in this judgment, if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, The Queen v Dainer; Ex parte Milevich (1988) 91 FLR 33. This has nothing to do with the right to silence in criminal matters. A defendant or prospective defendant is entitled to refuse an explanation to the police. But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award of costs, when an explanation might have avoided the prosecution."
33 Those observations were approved by Mason CJ at 544.
34 Latoudis v Casey was decided under the provisions of the Magistrates (Summary Proceedings) Act 1975 (Vic) which contain a general provision relating to the awarding of costs where a prosecution is unsuccessful. The statutory regime in Victoria does not contain provisions equivalent to s 6 of the Official Prosecutions Act set out earlier in these reasons and whilst Latoudis v Casey is a useful authority generally on the question of costs, it does not necessarily assist with the issue that presently falls for consideration: Mancini v Ward, unreported; SCt of WA; Library No 970182; 28 April 1997; Singh v Singh, unreported; SCt of WA; Library No 930187; 8 April 1993.
35 In this case, in my opinion, there were two important considerations that conditioned the learned Magistrate's discretion to award costs. Firstly, the police officers who stopped the vehicle in which the respondent was a passenger never asked the appropriate question of him, namely, when it was that he realised that the vehicle in which he was a passenger was stolen. Secondly, the evidence available to the prosecuting authorities was never capable of establishing the case against the respondent beyond reasonable doubt. The admission said to have been made by the respondent when the vehicle was stopped was ambiguous.
(Page 10)
- No attempt was made to clarify that ambiguity and, in my view, no criticism can be made of the respondent when he exercised his right to remain silent when offered the opportunity of a video-recorded interview. Similarly, there was no obligation on the respondent's counsel at or before trial to advise the prosecuting authorities of the defence which the respondent intended to run. To have done so may have given rise to the possibility that the prosecution would have called other evidence, possibly from the driver and/or the other passengers in the vehicle. This was not a case where, had that information been made available to the prosecuting authorities, the complaint would necessarily have been withdrawn: Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998.
36 A further consideration arises in this case and that is whether the respondent, by exercising his right to remain silent when offered the opportunity of a video-recorded interview, thereby deprived himself of the entitlement to costs. In my opinion, on all of the facts of this case that could not be so. If the exercise of the right to silence carries with it the consequence that an adverse costs order may be made, then the right itself may be compromised. In my view, that was never the intention of Parliament when the Official Prosecutions Act was passed: Graham v Ferguson, unreported; SCt of WA; Library No 960606; 17 October 1996. That is not to say that there may be some circumstances in which the failure by the defence to disclose a material matter may not be an appropriate basis for depriving a successful defendant of his or her costs. Green v Espinoza (supra) is an example of such a case. The exercise of the right to silence was one of many factors to be considered in relation to costs.
37 There may be particular cases in which the failure to disclose information to prosecuting authorities may justify the refusal of an order for costs. As Wheeler J said in Leone v McKenzie [2002] WASCA 200:
"The only observation which I would make, is that it should not of course be considered that anything in these reasons indicates that a defendant will be liable to have the discretion to award costs exercised against him or her wherever he or she has failed to disclose the substance of the defence. It is only where the defence is such that the prosecution might not be instituted or might be abandoned if the defence is disclosed, to adopt the expression used by Anderson J in Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998, that the exercise of the right to silence may come at that price."
(Page 11)
38 It should finally be pointed out that the Court's authority to order that a successful defendant is not entitled to his costs is discretionary under s 6 of the Official Prosecutions Act set out earlier in these reasons. Providing that discretion is exercised on proper principles, then there is no basis for an appellate court to intervene.
39 In this case I am not persuaded that the discretion of the learned Magistrate has miscarried or that the grounds of appeal have been made out.
40 The appeal will be dismissed.
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