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 178Magistrates 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…
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- GEORGE v Police [2011] SASC 178
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- [2011] SASC 178
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CaseChat Overview and Summary
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
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Background
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Evidence
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Decision
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Ratio Decidendi
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Established by: KELLY J
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