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…

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 GEORGE v Police

Details

AGLC: GEORGE v Police [2011] SASC 178
Case: [2011] SASC 178
Decision Date: 18 October 2011

CaseChat Overview and Summary

In the case of GEORGE v Police, the appellant appealed against the Magistrate's decision to not award costs to the appellant. The appellant was charged with three offences but ultimately pleaded guilty to one count of being unlawfully on premises. The Magistrate did not award costs to either party. The appellant argued that the Magistrate took into account irrelevant matters, did not request verbal submissions from either party about costs, and made a factual error in refusing the application for costs.

The legal issues before the court included 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, and whether the Magistrate made a factual error in refusing the appellant’s application for costs. The court examined the Magistrate's discretion and the principles on which the court acts regarding interference with discretion. It was noted that the power to award costs in summary proceedings is prescribed by statute, and the court's discretion is significant.

The court found that the Magistrate did not take into account irrelevant matters in refusing to order costs. It was also determined that the Magistrate did not err in not asking for further submissions on costs. The court found no factual error in the Magistrate's refusal of the costs application. The appeal was dismissed, affirming the Magistrate's decision.

No further orders were made beyond dismissing the appeal. The court upheld the Magistrate's decision on the matter of costs, finding no basis for interference with the Magistrate's discretion.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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