Gesler v Hibble
[2008] TASSC 31
•2 July 2008
[2008] TASSC 31
CITATION: Gesler v Hibble [2008] TASSC 31
PARTIES: GESLER, Kristy
v
HIBBLE, Kim (ACTING SGT)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 157/2008
DELIVERED ON: 2 July 2008
DELIVERED AT: Launceston
HEARING DATE: 16 June 2008
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Orders for compensation, reparation, restitution, forfeiture and other matters relating to disposal of property – Costs – Power to award - Costs in Criminal Cases Act 1976 (Tas) – Where defendant establishing that she was not guilty – Matters to be established – Nature of discretion.
Costs in Criminal Cases Act 1976 (Tas), s4(1).
Attorney-General v Rigby 61/1978, considered.
R v Freshney [1977] Tas SR 126, applied.
Aust Dig Criminal Law [931]
REPRESENTATION:
Counsel:
Applicant: D G Grey
Respondent: M Miller
Solicitors:
Applicant: Zeeman, Kable & Page
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 31
Number of paragraphs: 23
Serial No 31/2008
File No 157/2008
KRISTY GESLER v ACTING SGT KIM HIBBLE
REASONS FOR JUDGMENT CRAWFORD CJ
2 July 2008
The applicant was charged on a complaint with a common assault, by pushing the complainant, punching her in the head and grabbing her by the throat. After a defended hearing, a magistrate dismissed the charge. The applicant then applied for an order that she be paid, in respect of her defence, such costs as the learned magistrate thought just and reasonable, pursuant to the Costs in Criminal Cases Act 1976, s4(1). The learned magistrate dismissed the application and the applicant moved this Court to review the dismissal on the grounds that the learned magistrate misdirected himself as to the law, and misapplied the law to the facts of the case, and that the exercise of the discretion whether to award costs miscarried.
In summary, the prosecution case was as follows. The complainant, Brooke Tomkinson, was 16 years old, and lived at the same address as her mother, Michelle Tomkinson. The applicant had been the best friend of the mother. However, information was received by the complainant and her mother from a relative that the applicant was the source of rumours about the mother. As a result, the complainant sent abusive text messages to the applicant, who decided to visit the complainant's mother to talk about and resolve the cause of the ill-feeling that had arisen. She was 31 years old and physically larger than the complainant. The applicant walked into the lounge of the home of the complainant's mother. Both the complainant and her mother were in the room at that time.
The complainant's evidence-in-chief was that the applicant started pointing her finger in the complainant's face, calling her a troublemaking bitch. The complainant, who quickly became angry, asked her repeatedly to leave, but the applicant would not do so. The applicant then grabbed hold of the complainant by her tee-shirt. The complainant believed that the applicant was going to strike her, because her fist was raised, so the complainant got in first, in self-defence, by hitting her in the face. The applicant pushed the complainant back against a mantelpiece, which the complainant hit with her face, and she fell onto a couch, with the applicant leaning over her, holding her by the throat, until her mother pulled the applicant away. The complainant said that as a result of the incident she had a couple of bruises on her neck and arm, and her eye was sore from where she hit the mantelpiece.
In cross-examination, the complainant readily admitted that when the applicant pointed at her, she pushed the applicant's hand away and that at that time she was angry with the applicant, maintaining that she had every right to be angry. She also agreed readily that when she punched the applicant, she was punched back in the face. She agreed that after that they each had hold of the other's shirt. It was then that her face struck the mantelpiece and she fell on the couch, with the applicant over her and holding her throat. She agreed that she was holding onto the applicant at that time too, but asserted that upon her mother telling her to let the applicant go, she did so, and the mother pulled the applicant up, whereupon the applicant fell on the floor. The complainant then left the room.
Evidence was given by a police officer that on the following day, the right side of the complainant's face was swollen and red.
Evidence-in-chief by the complainant's mother included that upon the applicant entering the room, the mother asked her to leave but she would not do so, instead starting to argue with the complainant, pointing at her and calling her a troublemaking little bitch. The complainant told the applicant to stop pointing at her and pushed the hand out of the way, at which the applicant grabbed hold of the complainant and "scruffed her", and the complainant then lashed out at the applicant. In cross-examination she explained that by saying that the complainant's hand came up, but she did not see the complainant punch the applicant. However, she saw the applicant punch the complainant. The mother said that with both of them holding onto each other, she was trying to pull them apart and was saying "stop it", and she appealed to the applicant to "leave her, she's only 16". The complainant was then pushed into the mantelpiece so that her head struck it. The applicant then pushed the complainant onto the couch and held her by the throat. The mother thought that her daughter would be choked and pulled the applicant off her. The applicant landed on the floor and the complainant left the room. In cross-examination, the mother maintained that the applicant grabbed hold of the complainant before the complainant grabbed hold of the applicant. She added that when the complainant hit her head on the mantelpiece, she landed on the couch and the applicant landed on top of her.
In her evidence, the applicant said that the complainant started yelling at her, at which she told the complainant to sit down, she was talking to her mother. She accepted that she pointed her finger at the complainant and that the complainant "whacked" her hand out of the way. She said that the complainant then struck her in the eye and she hit the complainant back in the face. They had hold of each other. In the course of the ensuing struggle, she pushed the complainant, who fell onto the couch, still trying to strike the applicant, who had her arm across the complainant's chest. Then, when the complainant was holding her, digging her nails into the applicant's skin, the mother pulled the applicant off and she ended up on the floor. She said that as a result of the complainant punching her, she suffered a black eye. She did not intentionally push the complainant into the mantelpiece, but she did intentionally push her onto the couch. She denied taking hold of the complainant's throat.
In his reasons for dismissing the charge, the learned magistrate accepted the evidence of the applicant in preference to the evidence of the complainant and her mother. The reasons included the following passage:
"There is no reason to doubt the defendant's evidence that she was punched first. I accept that she was trying to speak to the complainant's mother while the complainant was remonstrating with her. I accept that she told the complainant to shut up and the complainant rushed the defendant and assaulted her. There is no room for any inference that the complainant was doing anything reasonable to remove the defendant from her mother's house. I do not accept the complainant's claim that she punched the defendant because she thought the defendant was raising her hand to punch her. The defendant I find was turning in response to the complainant striking her hand away and was not conscious of what was taking place until she was struck without any warning by the complainant, so at no time other than respond defensively and distinctly to the blow and the assault of the complainant.
I was unimpressed with the complainant's evidence. I concluded that she was very agitated at the time and beyond a state of reason and she launched herself against who she perceived as being the wrongdoer, the defendant. She could not have seen or have even been conscious of the defendant raising her arm of anything. Her claim that the defendant looked as if she was going to strike is a self-serving reconstruction. I found the complainant did not hesitate to paint the defendant's behaviour in the worst possible light and to tailor her own evidence to place her in a position as a ruined party, which was simply consistent with her initial view and disposition towards the defendant which she formed on hearing that she was the source of these rumours.
The complainant initially complained that the defendant grabbed her by the T-shirt and that she hit her because she thought the defendant was going to strike her. In cross-examination she conceded that she'd lost it, that she was angry. She denied that she grabbed the defendant and punched her but conceded that she did punch her and then after that the defendant punched her. She admitted that she had dug her fingers into the defendant's skin and wanted to hurt her from the outset and that she maintained that hold up to the time that they were on the couch when it seems she was complaining of the defendant squeezing her throat. She admitted that her mother set 'let go' and that was when she did let go. This adds weight to the defendant's claim that she was pushing her arm against the complainant to get the complainant to let go.
I conclude that the mother, Michelle, was a partisan witness whose evidence reflected the complainant's initial version in which the complainant herself had resiled significantly, ie, that the defendant grabbed hold of the complainant and then hit her. I note that she denied seeing the defendant strike the complainant which was remarkable given her close proximity, her mere proximity to what was taking place. I conclude that she had reconstructed her evidence to place the behaviour of her daughter in the best possible light.
In all the circumstances I am not satisfied that the force the defendant used was in all the circumstances as she believed them to be unreasonable and the charge is dismissed."
It may be inferred, although it was not stated, that the learned magistrate was not satisfied that the applicant was not acting in defence of herself when she applied force to the complainant.
In support of the application for costs, the applicant's counsel drew to the attention of the learned magistrate correspondence prior to the hearing of the complaint, in which the applicant's solicitor advised the police prosecution section that she asserted that the complainant initiated the violence and that the applicant would rely on self-defence. The substance of what the applicant would say in evidence was disclosed. It was argued that the police should not proceed further with the charge and it was foreshadowed that an application for costs would be made should the police proceed and the charge be dismissed.
The Costs in Criminal Cases Act, s4, gave the learned magistrate a discretion whether to award costs to a successful defendant. Subsections (2), (3) and (4) were relevant in this case:
"(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:
(a)Whether the proceedings were brought and continued in good faith;
(b)Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c)Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d)Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e)Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued."
Counsel argued to the learned magistrate that, in regard to the subject-matter raised by subs(2)(a), the proceedings were not brought and continued in good faith, and in regard to the subject-matter raised by subs(2)(b), proper steps were not taken by the police to investigate what had been alleged by the complainant and her mother and in response, by the applicant. In regard to the subject-matter raised by subs(2)(c), it was argued that the investigation into the offence was not conducted in a reasonable and proper manner. Those three arguments were rejected by the learned magistrate and their rejection is not challenged by the applicant. No issue was raised that concerned subs(2)(d).
It was submitted to the learned magistrate that in regard to the subject-matter raised by subs(2)(e), the applicant was discharged from the proceedings because she established, by her evidence and by cross-examination of the complainant and her mother, that she was not guilty. In particular, it was submitted that in the course of cross-examination the complainant ultimately conceded all relevant facts that were put to her, and that the complainant's mother had a partisan view of what happened to her daughter.
In his reasons for refusing the application, the learned magistrate regarded the argument relevant to subs(2)(e) as the only one of substance advanced by the applicant, finding "no substance" in any of the other arguments that concerned the matters in pars(a), (b) and (c). His Honour continued:
"As it transpired the defendant was found not guilty on the ground that in substance the court was not satisfied beyond a reasonable doubt that the force that she used was, in the circumstances as she believed them to be, to be unreasonable. And it was apparently the police had received a complaint from the complainant which was a 15-year-old girl who alleged that she had been assaulted in her mother's home by the defendant in the presence of her mother. In substance it was an unprovoked assault. The complainant's statement conveyed the impression that it was unprovoked and a persistent assault upon the complainant by the defendant which was escalated by the defendant, oh which was escalated by the defendant as the complainant endeavoured to defend herself. That is, it was a serious assault. And the mother's statement and material in the particulars corroborated the evidence of the complainant. As it transpired the defendant's version as related in evidence was accepted by her, was accepted by the court following adverse findings in respect to the credit worthiness of the complainant and her mother.
The case the prosecution was faced with was not one on the material that they had which was flawed from the outset, but it was a case in which reasonable people may form different conclusions on the various material that they had available to them including that put to them by the defence.
It was a case in substance encapsulated by his Honour, Neasey J in The Attorney General and Dexter v Rigby 61/1978 unreported judgments. That it was not for the police to form a conclusion that this evidence would be rejected and the opposing evidence would be accepted. Of course, that was a possibility. But the issue, it was essentially one of credibility I interpolate and his Honour said the issue of credibility is for the courts to decide that's what courts are for."
The learned magistrate then dismissed the application. It can be seen from a consideration of Attorney-General v Rigby 61/1978 that there were similar features in that case and this one. It too concerned the issue of self-defence raised in response to a charge of assault. The charge was dismissed because the learned magistrate preferred the credit of the defendant and his witnesses to the credit of the complainant and other prosecution witnesses. In awarding costs to the defendant, the learned magistrate was influenced by a finding that although there was no inefficiency in the police investigation initially, and no lack of good faith by the prosecution, the police should have evaluated the totality of the evidence collected, including the defendant's statement, and decided not to proceed. A similar argument was raised by the applicant in this case. Indeed, it was the subject of several letters sent by the applicant's solicitor to the police before the hearing of the complaint. At 19, Neasey J was of the view that there were errors of fact and principle in the reasons expressed by the magistrate. In particular, concerning principle, Neasey J said, at 20 – 21 that it was wrong to have expected the police to have "evaluated" the evidence before trial, and to have come to the same, or substantially the same, conclusion about the credibility of the witnesses, and the rights and the wrongs of the matter, as the magistrate was able to do after seeing and hearing them in the witness box, being examined and cross-examined. At 21, his Honour continued:
"The principal issue was, which side was telling the truth? That was scarcely an issue upon which the police should have been expected to make a decision. … The evidence before them was amply sufficient to justify conviction if it was believed, and part of it was objective evidence and part was from an independent witness. It was not for them to form a conclusion that this evidence would be rejected and the opposing evidence accepted, though that of course was a possibility. But the issue of credibility was for the Court to decide. That is what courts are for.
The largely undefined area of discretion which the police have, whether to prosecute or not, is a very difficult and onerous one for them to discharge conscientiously. As to this, see generally, Police Prosecution in England and in Wales by Professor Sigler (1974) Crim Law Rev 642 and ff; and Prosecution – A Matter for the Police (1975) Crim Law Rev 442 and ff, and per Chilwell J in R v AB, supra, at p 431. There is no suggestion in the present case that the police did not discharge this discretion conscientiously. It was in my opinion no part of their task to form a conclusion as to which witnesses in the end would be believed. The evidence in their possession was such that, in my view, if they had not initiated and brought the prosecution on for hearing, they might well have been considered to be in dereliction of their duty.
I think therefore, with respect, that the reasons which the learned Magistrate gave for making this order were erroneous. No other reason was put forward for making the order, and it is clear that there were no grounds for making an order under any of the specific matters referred to in s4(2) of the Act."
By referring to that case, the learned magistrate quite properly accepted the authority of the views as to principle that were expressed by Neasey J.
In support of the first ground of the motion, that the learned magistrate misdirected himself as to the law, the applicant's counsel relied on three particulars. The first was that the learned magistrate failed to consider the Act, s4(4), which provides that no defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued. There was nothing in what the learned magistrate said that leads to a conclusion that an error of that kind occurred. The applicant had no entitlement for an order for costs unless she was able to persuade the learned magistrate positively that the order should be made in her favour. R v Freshney [1977] Tas SR 126 at 128; Bradley v Lawson [1978] Tas SR 213 at 215. In support of her application, she argued (inter alia) that the proceedings were not properly brought or continued. The mere fact that the learned magistrate dealt with her argument and rejected it, does not lead to a conclusion that s4(4) was ignored. The second particular was that the learned magistrate erroneously formed the view that Attorney-General v Rigby (supra) was authority for the proposition that a defendant, establishing that he or she is not guilty, is not automatically entitled to costs; whereas the correct view of the case is that it is authority for the proposition that if a defendant establishes that he or she is not guilty, there is no automatic entitlement to costs if there are other disentitling factors. The simple answer to that argument is that the learned magistrate did not express the suggested view of the authority of Rigby's case. In any event, there is nothing in the section that leads to a conclusion that there is an entitlement to costs, if a defendant establishes that he or she is not guilty, unless there are other disentitling factors. All subs(2)(e) provides is that it is a relevant circumstance if a defendant is discharged because he or she establishes that she is not guilty. Even if that circumstance was established, it was not the end of the matter. R v Cashinella 78/1994 at 6. The third particular was, in substance, that apart from considering whether the proceedings had been properly brought and continued in good faith, the learned magistrate failed to consider any other relevant matters. As a matter of fact, the assertion is plainly wrong. The learned magistrate also considered whether proper steps were taken to investigate any matter, whether the investigation was conducted in a reasonable and proper manner, and whether the defendant was discharged from the proceedings because she established that she was not guilty. All of those matters had been raised by the applicant's counsel.
It was submitted for the applicant that factors in favour of the discretion being exercised in her favour included that she suffered financially because of the charge for two reasons. The first was that she was stood down as a childcare worker, without pay, pending the hearing of the charge, and the second was that she incurred expense in defending the proceedings. Neither of those matters were significant in the exercise of the discretion whether to make an order for costs and there was no error by the learned magistrate in not referring to them. The second of those matters was necessary in any event, before an applicant could apply for an order for costs.
The second ground of the motion, that the learned magistrate misapplied the law to the facts, was not sustained in argument. In true terms, the argument was that having regard to certain facts, the discretion was wrongly exercised. It was no different, in substance, to the third and final ground that the exercise of the discretion miscarried. The facts raised were that the applicant was innocent of spreading rumours about the complainant's mother, that she had not entered the house as a trespasser, that she was not aware that the complainant was inside when she entered, that she co-operated completely with the police, and that she had explained precisely to the prosecution section what she intended to prove at the hearing. Even if those facts were established and even if the applicant positively proved that she was not guilty, the learned magistrate was not obliged to make an order in her favour.
At the outset of his reasons, his Honour referred to R v Freshney (supra) as the guiding authority for the exercise of the discretion. Both counsel accepted that was so. In particular, it was held by Cosgrove J that none of the matters mentioned in s4(2) is conclusive, something which the applicant's counsel appears to have overlooked in this case, having regard to his argument that if the matter in s4(2)(e) was made out by an applicant, then an order had to be made in the applicant's favour, unless some disentitling factors can be demonstrated by the prosecution.
Subject to the matters that are required to be considered by s4, the discretion to order costs is an unfettered one. Freshney at 128. Cosgrove J added the following comment:
"The statute does not in terms refute or abrogate the long-standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is almost spelt out in the section)."
The making of an order dismissing the application involves the exercise of a discretionary judgment. The principles that apply on an appeal from, or motion to review, such an order are well settled. There is a strong presumption in favour of the correctness of the decision and it should not be overturned unless the Court is satisfied that it is clearly wrong or that there was some specific error. House v R (1936) 55 CLR 499 at 504 – 505; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 at 627; Gray v Brown B16/1995 at 3; Attorney-General v Rigby (supra) at 18. It has not been demonstrated that the learned magistrate was clearly wrong in this case. The circumstances of the case and the reasons why the learned magistrate dismissed the charge did not require an order for costs in the applicant's favour. Comparison of the case with Attorney-General v Rigby was appropriate. The learned magistrate was not persuaded by the applicant of a positive reason for exercising the discretion in her favour and such a conclusion was not clearly wrong.
The motion to review should be dismissed.
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