GEORGE v Police - [2011] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GEORGE v POLICE
[2011] SASC 178
Judgment of The Honourable Justice Kelly
18 October 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS - INTERFERENCE WITH DISCRETION
Appeal against Magistrate's refusal to award costs to the appellant - the appellant was charged with one count of being unlawfully of premises contrary to s 17(1) of the Summary Offences Act 1953 (SA), one count of being in possession of articles to commit an offence in suspicious circumstances contrary to s 270C(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) - appellant pleaded guilty to the charge of being unlawfully on premises after the other two charges were dropped - Magistrate recorded a conviction and the appellant entered a good behaviour bond - Magistrate did not award costs to either side - whether the Magistrate took into account irrelevant matters in refusing to order costs - whether the Magistrate erred by not requesting verbal submissions from either party about costs - whether Magistrate made a factual error in refusing costs.
Held: Appeal dismissed - Magistrate did not take irrelevant matters into account - Magistrate did not err in not asking for further submissions on costs – Magistrate did not make any factual error in refusing the appellant’s application for costs.
Summary Offences Act 1953 (SA) s 17(1); Criminal Law Consolidation Act 1935 (SA) s 134(1) and s 270C(1); Summary Procedure Act 1921 (SA) s 189(1); Magistrates Court Rules 1992 (SA) r 51; Supreme Court Rules 2006 (SA) r 288; District Court Act 1991 (SA) s 43; District Court Rules 2006 (SA) r 288, referred to.
Curnow v Police (2008) 100 SASR 290; Jones v Police [2009] SASC 137; Schloithe v Police [2011] SASC 156, considered.

GEORGE v POLICE
[2011] SASC 178
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against an order of a Magistrate who declined to make a costs order in favour of the appellant.
The appellant was originally charged with three counts: being unlawfully on premises contrary to s 17(1) of the Summary Offences Act 1953 (SA), going equipped contrary to s 270C(1) of the Criminal Law Consolidation Act 1935 (SA), and theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). Eventually the appellant pleaded guilty to one count of being unlawfully on premises and the prosecution withdrew the remaining two counts.
The Magistrate recorded a conviction on the charge of being unlawfully on the premises and released the appellant on a bond to be of good behaviour in the sum of $500. She waived the court and prosecution fees. Her Honour declined to award any costs.
The main complaints on appeal seems to be that in declining to award the appellant costs the learned Magistrate took into account an irrelevant matter by referring to the appellant having admitted his criminality, or words to that effect; second, that the learned Magistrate made the decision to refuse the application for costs without hearing from either the defence or the prosecutor. It was said that the Magistrate did not properly inform herself of the issue to be decided in relation to costs. A third complaint made at the hearing arose out of the wording of the Magistrate’s ruling which was not available to the parties at the time when the notice of appeal was filed. Counsel for the appellant submitted that the use of the phrase “other matters” in the plural in her ruling reveals an error of fact made by the Magistrate in that there was only one plea of guilty. There were in fact no other matters.
Before discussing the complaints made by the appellant it is necessary to summarise the relevant facts.
Background Facts
The appellant was originally charged with three offences arising out of behaviour which occurred at Mansfield Park on 27 February 2006. On that date the appellant was arrested by two mobile uniformed patrol officers on premises belonging to the South Australian Housing Trust. He was carrying two screwdrivers. The appellant told the police he was there to remove some screens from the laundry and bathroom windows of that house and put them on another house which he occupied.
He first appeared in the Magistrates Court unrepresented on 11 April 2006 when the matter was adjourned for him to seek legal advice. On 2 June 2006 there was no appearance by the appellant and a warrant of apprehension was issued. For some reason the warrant was not executed until November 2010.
On 29 November 2010 the appellant appeared again unrepresented and the matter was further adjourned so that he could obtain legal advice.
Thereafter, serious negotiations took place between the prosecution and the appellant’s lawyer and the matter was ultimately resolved on 26 July 2011 by way of a plea to one count of being on premises without lawful excuse.
Prior to the hearing on 26 July 2011 the appellant’s counsel filed in the court an application setting out the basis of the appellant’s claim for costs in the sum of $3,041.50. In that document the appellant set out the history of the negotiations between the parties from 7 December 2010 to the date when the matter finally resolved in July 2011. It showed that there had been correspondence and phone calls between the parties, a pre-trial conference and a date for trial set on 26 July 2011.
There is no suggestion that the Magistrate did not take into account the written application by the appellant for costs. The complaint seems to be that the Magistrate did not call on the prosecution to indicate its attitude before making an order declining to award costs or give the appellant a chance to advise the court that the prosecution did not oppose its application for costs at least in relation to items 1, 2 and 3 on the scale of costs.
Does the appeal require permission?
Both parties proceeded in this Court on the basis that an appeal in relation to a question of costs only does not require permission.
The power to award costs in summary proceedings is prescribed by s 189(1) of the Summary Procedure Act 1921 (SA) which provides:
189—Costs
(1)Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.
(2)Costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings.
(2a)   Costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
(3)If proceedings are delayed through the neglect or incompetence of a legal practitioner, the Court may—
(a)     disallow the whole or part of the costs as between the legal practitioner and his or her client (and, where appropriate, order the legal practitioner to repay costs already paid);
(b)     order the legal practitioner to indemnify his or her client or any other party to the proceedings for costs resulting from the delay;
(c)     order the legal practitioner to pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted.
(4)If proceedings are delayed through the neglect or incompetence of a prosecutor who is not a legal practitioner, the Court may order the Crown, or, where the prosecution is brought on behalf of a body that does not represent the Crown, that body, to indemnify any party to the proceedings for costs resulting from the delay.
(5)If proceedings are unreasonably obstructed by a party or a witness, or proceedings are delayed through the failure of a party or a witness to appear before the Court when required to do so, the Court may make either or both of the following orders:
(a)an order that the party or witness indemnify any party for costs resulting from the obstruction or delay;
(b)an order that the party or witness pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted in consequence of the obstruction or delay.
(6)Before making an order under subsection (3), (4) or (5), the Court must inform the person against whom the order is proposed of the nature of the proposed order and allow that person a reasonable opportunity to give or call evidence and make representations on the matter.
(7)A person against whom an order for costs is made under subsection (3), (4) or (5) has the same rights of appeal as a party to a civil action.
Rule 51 of the Magistrates Court Rules 1992 (SA) is also relevant:
51.01 Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02 For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03 Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
The respondent submitted that it is appropriate to consider the Magistrate’s refusal to order costs in the context of the fact that there were several charges resolved by way of a plea bargain. From this perspective the appeal was neither an interlocutory order nor is it limited by the provision of r 288(1)(b) of the Supreme Court Civil Rules 2006 (SA) which states:
288—Appeals requiring permission
(1) Subject to any statutory provision to the contrary, an appeal to the Court lies by permission of the Court if—
(a)the judgment subject to the appeal is—
(i)an interlocutory judgment of the Court given by a Judge; or
(ii)a judgment given on appeal from an interlocutory judgment; or
(iii)a judgment given by a single Judge on appeal from a Magistrate sitting in the Youth Court, or
(b)the appeal is limited to a question about costs.
In making its submission that r 288(1)(b) does not apply to an appeal on a question of costs from a court of summary jurisdiction the respondent relied on the decision of Curnow v Police.[1] In Curnow the appellants had been charged on an Information with a number of offences. Some of the charges were withdrawn after successful negotiations with the prosecution. Two of the charges proceeded and the appellants were ultimately acquitted. Debelle J considered the question of whether the appellants must obtain permission to appeal. He said:[2]
Section 42(1) provides a right of appeal in respect of a final judgment qualified only by the fact that the appeal must be in accordance with the rules of this Court. The requirement that an appeal be in accordance with the rules of this Court does not circumscribe or limit the right of appeal nor reduce the entitlement to appeal against any judgment. Instead, it means that the appeal must be congruent with the rules, that is to say, the appeal must comply with the rules of court that prescribe the procedure to be followed. One example is the time limit of 21 days prescribed in r 283 for filing the notice of appeal. Rule 281(b) is not a rule of procedure but a rule of substantive law proscribing appeals on questions of costs except with the permission of the court. The meaning and operation of s 42 cannot be amended by a rule which is intended to govern appeals as to costs within the Supreme Court. For these reasons, the appellants do not have to apply for permission to appeal. That conclusion accords with a practice that had applied before the Supreme Court Civil Rules 2006 (SA) came into force: see, for example, Police v Konieczka [2006] SASC 183; Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454; Hamdorf v Riddle [1971] SASR 398.
[1] Curnow v Police (2008) 100 SASR 290.
[2] Curnow v Police (2008) 100 SASR 290 at [9].
It is a strange result that a decision relating to costs only is appealable without permission to a litigant aggrieved by a decision in the Magistrates Court, but not to a litigant aggrieved by a decision made in either the District Court[3] or the Supreme Court. There are sound practical as well as policy reasons for requiring an appellant on a question of costs only from the Magistrates Court to be subject to the same rule as litigants who wish to appeal from the decision of a judge in the higher courts. However the judgment of Debelle J in Curnow is clear and I am not prepared to depart from it, even though I note that White J in Schloithe v Police[4] does not appear to be as convinced as the judge in Curnow that r 288(1)(b) does not apply. White J said:[5]
The appellant appeals against the Magistrate’s costs decision. Having regard to the terms of r 288(1)(b) of the Supreme Court Civil Rules 2006, there is a question as to whether or not the appeal lies only with permission. Although the parties did not touch on this question in their submissions, I am inclined, out of an abundance of caution, to grant the appellant permission to appeal to the extent that it may be necessary.
[3]    District Court Act 1991 (SA) s 43; Supreme and District Court Civil Rules 2006 (SA) r 288.
[4]    Schloithe v Police [2011] SASC 156.
[5]    Schloithe v Police [2011] SASC 156 at [6].
Had I reached the conclusion that it was necessary under the Supreme Court Civil Rules 2006 for the appellant to seek permission to appeal, I doubt whether in the circumstances of this case for the reasons which follow, I would have granted permission to appeal. As I have said, it seems a strange result that a litigant aggrieved about a costs decision only has an automatic right of appeal from the Magistrates Court but not from the higher courts. In any event in my view appeals from the Magistrates Court on the question of costs only should not be encouraged.
Discussion
I deal first with the complaint that the Magistrate’s reasons reveal that her Honour acted on an incorrect factual basis. Her Honour in declining to award costs said:
For the reasons stated during submissions, I decline to award costs in this matter given what the defendant has disclosed in relation to illegal activities and his plea of guilty to the other matters.
It is my view that when reviewing the exercise of the discretion to award costs this Court should not be overly pedantic about the form of words used by a magistrate in an ex tempore ruling. In this case, viewed in the context in which the remarks were made, it seems obvious that the Magistrate when referring to “illegal activities” was referring to the appellant’s explanation which had been given during submissions as to why he went onto the premises the subject of the count to which he pleaded guilty. I might add although it is not necessary for the purpose of this appeal to determine the question, that explanation did not necessarily provide the appellant with any defence to the charges which were previously withdrawn by the police (going equipped and theft).
The reference in the last line to “the other matters” appears to be no more than a slip. It is obvious from the Magistrate’s sentencing remarks which had been delivered a few minutes prior to the ruling on costs that her Honour was plainly aware that the appellant was in court to be dealt with for one offence and one offence only.
For these reasons I reject the complaint that the comments made by the learned Magistrate reveal that she determined the issue of costs on an incorrect factual basis.
The next complaint was that the Magistrate did not accord procedural fairness in that she made a decision not to award costs without hearing verbal submissions from either the prosecution or the defence.
The course of the proceedings that morning, evidenced in the affidavits and confirmed during the hearing of the appeal, was that the Magistrate first imposed sentence. Then, Ms Robson who appeared in the court below for the appellant, drew the Magistrate’s attention to the written application for costs which had been filed before the hearing. In that document (exhibit YRM2 to the affidavit of Ms Robson) the appellant’s counsel set out the background of discussions and negotiations with the prosecution in some detail and sought the amount of $3,041.50 by way of costs. It appears from the affidavit of the prosecutor filed on the appeal that a short discussion ensued between the Magistrate and Ms Robson and the Magistrate then ruled in relation to the application. There is no evidence that either the appellant’s counsel or the prosecutor sought to be verbally heard on the application. Counsel for the appellant, who as I have said was counsel at the hearing, explained that she was initially shocked when the Magistrate ruled that there would be no order as to costs and failed to say anything. It seems to me that no criticism can be made from the Magistrate in the circumstances which unfolded that morning, there being no application by either Ms Robson or the prosecutor to be further heard, that she would then determine the application for costs on the written application. In any event I asked Ms Robson what further matters needed to be put to the Magistrate on the issue of costs. Ms Robson indicated that she would have brought to the attention of the Magistrate that the prosecution did not oppose an application for costs at least in relation to some of the costs sought.
As I have said there is no evidence that the prosecutor sought to be heard on the application. There was no obligation on the Magistrate in the circumstances to seek the views of the prosecution before declining to award costs to the appellant. Even if it might be thought that the prosecutor’s submissions should have been sought no unfairness as a result of the failure to seek the prosecution’s view has been demonstrated.
For these reasons I do not consider there is any substance in this ground of appeal.
The third complaint is that the Magistrate took into account an irrelevant matter when deciding the issue of costs. The irrelevant matter was said to be taking into account that the appellant had admitted his criminality. The argument put on behalf of the appellant was that the Magistrate did not take into account that two counts had been previously withdrawn and the appellant pleaded guilty to the first count only when the charge was amended.
The appellant’s complaint under this ground of appeal seems to be predicated on the characterisation of the appellant in the proceedings as the “successful party”.
Here the appellant was originally charged with three offences all arising from a discrete set of circumstances, namely the fact that the appellant was found on a South Australian Housing Trust property armed with two screwdrivers for the purpose of removing some window screens and placing them on a house which he occupied. This, the Magistrate was told, was in order to avoid the consequences of incurring a penalty fine from the South Australian Housing Trust in view of the damage he had caused to his own windows. The appellant failed to appear in court and he was not brought to court until over four years later in November 2010 after being arrested on the warrant for apprehension. Against this background there were negotiations between the parties between December 2010 and July 2011 which resulted ultimately in the prosecution accepting a plea to count one as amended and both counts two and three being withdrawn. As I have said I leave aside for the purpose of deciding this ground of appeal the question of whether the appellant’s submissions to the prosecution about the legal basis for the charge in count three are correct or not, a matter which I very much doubt. However, irrespective of that, there were sound reasons why after a delay of four and a half years a police prosecutor might have taken a pragmatic approach to a case like this and determined that a plea of guilty to the first count adequately reflected the criminality of the appellant’s overall actions. This is particularly so in light of the fact, as the Magistrate noted, that the appellant’s actions were at the trifling end of the scale of offending of this type.

Does this chain of events mean that the appellant was the “successful party” or does it mean that the prosecution was the “successful party”? In my view as Gray J observed in another context in Jones v Police,[6] to view each of these charges as if they were separate matters calling for separate costs orders in relation to each is artificial. The Magistrate was entitled to weigh up the matter as a whole and determine as she obviously did that neither party was either wholly unsuccessful or wholly successful. However the Magistrate was correct to note that the appellant had admitted his criminality. The facts were never in dispute that he was found on a South Australian Housing Trust property armed with two screwdrivers intending to remove two flyscreens and transfer them to his own house. Nor does it make any difference that the count to which the appellant pleaded guilty namely count one was amended to delete “for an unlawful purpose” to “without lawful excuse”. It was the same offence under s 17(1) of the Summary Offences Act 1953 (SA) and the particulars obviously needed to be amended in light of the fact that the two counts of going equipped and theft had been withdrawn.
[6] Jones v Police [2009] SASC 137.
Section 189(1) of the Summary Procedure Act 1921 (SA) vests a wide and general discretion in a magistrate. As White J said in Schloithe:[7]
That general discretion is not qualified in any way which is material to the present appeal by any of the other provisions in s 189. The discretion is, of course, to be exercised in accordance with the law and in accordance with settled principles regarding an award of costs, including the principle that ordinarily a successful party is entitled to an award of costs in his or her favour. In the exercise of that general discretion a Magistrate may, when appropriate, award a successful defendant, some or all of his or her costs, or make no order as to costs.
An appeal against a decision on costs is an appeal against an exercise of a general discretion. On such appeals an appellate court intervenes only in the circumstances identified in House v The King, that is to say, it is necessary for the appellant to identify some error in the exercise of the discretion, for example, by the Magistrate having failed to take into account a relevant matter or having taken into account an irrelevant matter, or to establish that the exercise of the discretion was so unreasonable or unjust as to require appellate intervention.
[footnote omitted]
[7] Schloithe v Police [2011] SASC 156 at [12]-[13].
In my view no error has been established here which would justify the interference of this Court. Nor is the Magistrate’s decision so plainly unjust and unreasonable as to warrant appellate intervention. On the contrary in the circumstances and viewing the matter as a whole the Magistrate’s decision is plainly reasonable.
The appeal is dismissed.