Haddon v Everitt
[2001] WASCA 420
•20 DECEMBER 2001
HADDON & ANOR -v- ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE [2001] WASCA 420
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 420 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1154/1999 | 14 MAY & 16 AUGUST 2001 | |
| Coram: | KENNEDY J WALLWORK J STEYTLER J | 20/12/01 | |
| 40 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Costs increased by $2,000 | ||
| B | |||
| PDF Version |
| Parties: | CAROLE PATRICIA HADDON BRONWYN VANESSA HADDON ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE |
Catchwords: | Costs Court of Petty Sessions Complaint dismissed Official Prosecutions (Defendants' Costs) Act 1973, s 5(5) Special order Relevance of costs scale Whether defendants entitled to costs incurred in changing solicitors |
Legislation: | Official Prosecutions (Defendants' Costs) Act 1973, s 5(5) |
Case References: | Baker v Campbell (1983) 153 CLR 52 Fewster v Briggs [2000] WASCA 36 Haag v Underdown (1968) 13 FLR 235 Haddon v Everitt [2000] WASCA 350 House v The King (1936) 55 CLR 499 Klahn v Talbot (1995) 83 A Crim R 535 Latoudis v Casey (1990) 170 CLR 534 M v The Queen [1994] WAR 306 Newman v Byrne [1969] SASR 350 Stanley v Phillips (1966) 115 CLR 470 Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 Anderson v Bank of British Columbia (1876) 2 Ch D 644 AWA Ltd v Daniels, unreported; SCt of NSW (Rogers CJ); No 50271 of 1991; 8 October 1992 Cilli v Abbott (1981) 53 FLR 108 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Feather v Rogers (1909) 9 SR (NSW) 192 Gallagher v CSR Ltd, unreported; SCt of WA (Ipp J); Library No 940165; 31 March 1994 Gazepis v Police (1997) 70 SASR 121 Grant v Downs (1976) 135 CLR 674 Green v Espinoza, unreported; SCt of WA (Anderson J); Library No 980234; 6 May 1998 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Jones v Dunkel (1959) 101 CLR 298 McEwen v Siely (1972) 21 FLR 131 McGoldrick v R [1995] 1 Qd R 553 McNeil v Bonner [1951] NTJ 820 Melouhowee Pty Ltd v Steenbohm, unreported; SCt of NSW (Waddell CJ); Library No BC 9202093; 6 February 1992 O'Donnell v Dawe [1905] VLR 538 Pettitt v Dunkley [1971] 1 NSWLR 376 R v Kent; Ex parte McIntosh (1970) 17 FLR 65 R v McGoldrick (1994) 71 A Crim R 152 R v Phipps; Ex parte Alton [1964] 2 QB 420 R v Shaw (1991) 57 A Crim R 425 Robson v Carter, unreported; FCt SCt of WA; Library No 4511; 19 May 1982 Seaford Court Estates Ltd v Asher [1949] 2 KB 481 Shewchuck v Total Western Transport Pty Ltd (1998) 105 A Crim R 72 Spautz v Williams [1983] 2 NSWLR 506 Walton v Gardiner (1993) 177 CLR 378 Waugh v British Railways Board [1980] AC 521 Wilde v The Queen (1988) 164 CLR 365 Williams v Spautz (1992) 174 CLR 509 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : HADDON & ANOR -v- ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE [2001] WASCA 420 CORAM : KENNEDY J
- WALLWORK J
STEYTLER J
- BRONWYN VANESSA HADDON
Appellants (Defendants)
AND
ROBERT WILLIAM EVERITT on behalf of the COMMISSIONER OF POLICE
Respondent (Complainant)
Catchwords:
Costs - Court of Petty Sessions - Complaint dismissed - Official Prosecutions (Defendants' Costs) Act 1973, s 5(5) - Special order - Relevance of costs scale - Whether defendants entitled to costs incurred in changing solicitors
Legislation:
Official Prosecutions (Defendants' Costs) Act 1973, s 5(5)
(Page 2)
Result:
Appeal allowed
Costs increased by $2,000
Category: B
Representation:
Counsel:
Appellants (Defendants) : In person
Respondent (Complainant) : Mr R E Cock QC
Solicitors:
Appellants (Defendants) : In person
Respondent (Complainant) : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Baker v Campbell (1983) 153 CLR 52
Fewster v Briggs [2000] WASCA 36
Haag v Underdown (1968) 13 FLR 235
Haddon v Everitt [2000] WASCA 350
House v The King (1936) 55 CLR 499
Klahn v Talbot (1995) 83 A Crim R 535
Latoudis v Casey (1990) 170 CLR 534
M v The Queen [1994] WAR 306
Newman v Byrne [1969] SASR 350
Stanley v Phillips (1966) 115 CLR 470
Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188
(Page 3)
Case(s) also cited:
Anderson v Bank of British Columbia (1876) 2 Ch D 644
AWA Ltd v Daniels, unreported; SCt of NSW (Rogers CJ); No 50271 of 1991; 8 October 1992
Cilli v Abbott (1981) 53 FLR 108
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Feather v Rogers (1909) 9 SR (NSW) 192
Gallagher v CSR Ltd, unreported; SCt of WA (Ipp J); Library No 940165; 31 March 1994
Gazepis v Police (1997) 70 SASR 121
Grant v Downs (1976) 135 CLR 674
Green v Espinoza, unreported; SCt of WA (Anderson J); Library No 980234; 6 May 1998
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Jones v Dunkel (1959) 101 CLR 298
McEwen v Siely (1972) 21 FLR 131
McGoldrick v R [1995] 1 Qd R 553
McNeil v Bonner [1951] NTJ 820
Melouhowee Pty Ltd v Steenbohm, unreported; SCt of NSW (Waddell CJ); Library No BC 9202093; 6 February 1992
O'Donnell v Dawe [1905] VLR 538
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Kent; Ex parte McIntosh (1970) 17 FLR 65
R v McGoldrick (1994) 71 A Crim R 152
R v Phipps; Ex parte Alton [1964] 2 QB 420
R v Shaw (1991) 57 A Crim R 425
Robson v Carter, unreported; FCt SCt of WA; Library No 4511; 19 May 1982
Seaford Court Estates Ltd v Asher [1949] 2 KB 481
Shewchuck v Total Western Transport Pty Ltd (1998) 105 A Crim R 72
Spautz v Williams [1983] 2 NSWLR 506
Walton v Gardiner (1993) 177 CLR 378
Waugh v British Railways Board [1980] AC 521
Wilde v The Queen (1988) 164 CLR 365
Williams v Spautz (1992) 174 CLR 509
(Page 4)
1 KENNEDY J: I have had the advantage of reading in draft the reasons to be published by Steytler J. I am in agreement with those reasons and with the orders which his Honour proposes.
2 WALLWORK J: On 9 December 1996 the appellants were charged with having unlawfully stalked a person with intent to cause apprehension of fear. There were three complaints numbered 9787, 9862 and 9863, with the first one charging Ms Carole Haddon alone, and the other two charging both Ms Carole Haddon and her mother, Mrs Bronwyn Haddon, with the same offence. The first complaint was later withdrawn on 21 April 1998. The appellants were found not guilty of the charges against them.
3 The appellants made an application for orders for costs pursuant to the Official Prosecutions (Defendants' Costs) Act 1973 ("the Act"). On 2 August 1998 the learned Magistrate found that the appellants were entitled to an order for costs in the sum of $5800. His Worship said that each of them had faced one charge. It was his view that the amount properly allowable should be divided equally between them. Accordingly he allowed costs in respect of charge no 9862 (which had charged each of the appellants) in the sum of $2900 and costs in respect of charge no 9863 (which also charged each of them) also in the sum of $2900.
4 There was only one sum for costs calculated to compensate both the appellants for the costs each of them had incurred. The sum calculated was divided into half, allowing each of the appellants one-half of the total award. That raises a question whether each appellant should have had a separate sum calculated for her costs to compensate her for her expenses.
5 The appellants applied for leave to appeal from the decision concerning the award of costs. Leave was granted on 1 November 1999. The appeal came on before this Court on 14 May 2001 and 16 August 2001.
6 There are 15 grounds of appeal and they are all directed towards the proposition that the appellants should have been allowed the full amount of the costs which they had paid to their solicitors and counsel, totalling $19,313.83. A schedule of those costs showing accounts rendered by six legal practitioners appears in the appeal papers (AB 122).
(Page 5)
Background
7 In his written reasons for dismissing the charges, the learned Magistrate discussed the history of the matter. His Worship said that, amongst other things, one of the issues he had to determine was whether documentary evidence which had been seized from the appellant, Ms B Haddon, was the subject of legal professional privilege. He said that the complainant had conceded that prima facie the relevant documents had legal professional privilege attached to them. However, the complainant had contended that because the documents were alleged to have been brought into existence for a criminal or improper purpose, legal professional privilege did not attach to them.
8 His Worship said that that question alone quite clearly raised some complex questions of law. He concluded that the payment of greater costs than those thought to constitute the scale under the Act before the decision in Klahn v Talbot (1995) 83 A Crim R 535 was desirable, pursuant to s 5(5) of the Act.
9 The learned Magistrate noted that when the matter had come before the Court on 21 February 1997 it had appeared that the number of witnesses to be called would be double what was previously thought to be the case, and that the matter would take four days to complete. Prior to that date it had been anticipated that the hearing of the charges would take approximately two days, as there were 10 witnesses to be called.
10 After a number of further adjournments and applications of various types, the trial commenced on 19 January 1998. After some further adjournments and on 8 April 1998, Counsel for the complainant indicated that he no longer sought to tender the documents the subject of the claim of legal professional privilege by Ms B Haddon. He said that he would call one additional witness only. His Worship said that the prosecution had closed its case after having completed the evidence of one police officer on that day and having called one other witness. The appellants elected not to give evidence. Having heard submissions from Counsel the decision was reserved. On 21 April 1998 the complaints were dismissed.
The Costs Decision
11 In his reasons for judgment on the costs issue, the learned Magistrate noted that over the course of the proceedings the defendants had between them been represented by six separate legal practitioners. However, the defendants had not been represented at the trial of the proceedings, except
(Page 6)
- on 8 April 1998. His Worship said that some of the Counsel representing the appellants had appeared from time to time at either mentions of the proceedings or at special appointments in relation to them.
12 The learned Magistrate said that the complainant had not argued against a costs order in favour of the appellants. It had been submitted that in all the circumstances they were entitled to costs for their "reasonable" expenses in accord with the reasons for decision in Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188. His Worship said that it appeared that in general the appellants did not quibble with this approach but they had contended that the whole of the amounts claimed by them had been costs reasonably incurred.
13 The learned Magistrate discussed previous decisions concerning the awarding of costs under the Act. He came to the conclusion that it would seem that in an official prosecution, a defendant is entitled to legal expenses which are properly incurred whether or not the defendant is represented at a trial by the person to whom he or she is indebted for those costs. He said "as both counsel in this instance suggest, it is a question of whether or not expenses incurred are properly incurred, whether they are reasonable, which determines the quantum of costs to which a successful defendant is entitled under the Act."
14 In my view those remarks should be qualified as they were by Ipp J in Washbourne (supra) where his Honour said at 194:
"Accordingly, I consider that a magistrate, in awarding costs under s 5(5), should not merely 'make a general discretionary award reflecting what is reasonable and proper in all the circumstances.'
The starting point is that the amount of the costs are to be in accordance with the scale prescribed. If, however, the special difficulty, complexity, or importance of the case leads the court to order higher costs than those laid down in the scale, the court is empowered to order costs in excess of the amount for scale items; nevertheless, the scale items are to be the basic guidelines in determining the amount of costs to be ordered.
The amounts reflected in the scale are substantially lower than the costs set out in the Supreme Court Costs scale. Plainly, the intention of the legislature is that the costs awarded under the Official Prosecutions (Defendants' Costs) Act are to be lower
(Page 7)
- generally, than the costs awarded in a Supreme Court action. The court, in ordering costs under s 5(5) therefore does not have a discretion limited only be considerations of reasonableness. Even if costs are awarded in excess of the scale, regard must be had to the scale as a guideline."
15 In this case his Worship said:
"As previously indicated the costs claimed by the defendants are made up of charges made to them by the solicitors and counsel who acted on their behalf over the course of the proceedings. There are five solicitors who have made charges to the defendants, together with Mr Richardson of Counsel."
16 Having discussed the amounts of the various accounts, the learned Magistrate decided that it would not be proper and reasonable to allow charges which had been incurred because of actions taken by a defendant where investigations and preparation undertaken had been duplicated, "and in the present case, duplicated several times over". His Worship said:
"In my view the defendants are entitled to proper and reasonable costs for representation in court by McKerlie, Mikkelsen and Horrigan. They are entitled to an appropriate allowance for getting up on the part of Mr Browne. They are entitled to an appropriate amount for preparation in respect of attendance on trial by Mr Browne. They are not entitled to any allowance in respect of getting up by McKerlie, Mikkelsen or Horrigan and they are not entitled to costs in respect of any applications made on their behalf that were unsuccessful. Those applications may be ancillary to the trial, however they being unsuccessful, it is my view that such unsuccessful applications ought not to be paid by the complainant, in reality the State."
17 It can be seen from the above comments that the appellants were only allowed an appropriate allowance for getting up on the part of Mr Browne. They were held not to be entitled to any costs "for getting up" which had been charged by three of the other solicitors involved.
18 In Washbourne at 194 and 195 Ipp J said:
"Item 1 of the scale covers both the preparation of the case for trial and counsel's fee for the first day. It expressly provides
(Page 8)
- that no allowance should be made for second counsel or the solicitor attending the trial. The scale makes no provision for getting up fees.
It is important that the distinction between the fee for getting up and that for the preparation involved for the first day be borne in mind.
The fee for the first day of the trial (or, as it is sometimes described, 'the fee on brief') as Fullagar J said in Magna Alloys & Research Pty Ltd v Coffey (No 2) [1982] VR 97 at 109:
'… is remuneration for a preparation extending up to at least a substantial part of the day before and night before the hearing, as well as for the time spent in court before the first refresher commences.'
It is to be emphasised that the fee on brief includes a good deal of time spent on reading facts or law in preparation for trial: see Dalgety Australia Operations Ltd v F F Seeley Nominees Pty Ltd (No 2) (1988) 49 SASR 75 at 85. 'Getting up' involves preparation not included under the fee on brief.
In Anfrank Nominees Pty Ltd v Connell (1991) 6 WAR 271 Malcolm CJ said the following (at 280) in regard to item 13 of the Supreme Court scale which relates to getting up:
'Item 13 involves more than the previous item "instructions for brief" which it superseded. It includes all work done in preparing for trial not covered by any other item, including preparation of the brief, the perusal and copying of relevant documents, any advice on evidence, notices to produce and admit, the preparation of subpoenas, papers for the judge, entry for trial and attending counsel with the brief and conferring with him. It may also cover work done by counsel in relation to these matters.'
It is significant that item 1 is said to include 'preparation of case for trial' whereas item 11 covers 'All other expenses … reasonably and properly incurred in the preparation of the case'. Thus a distinction is made between 'preparation of case for trial' and 'preparation of the case'. In my view, the former covers preparation which is part of the fee on brief, whereas the latter includes getting up."
(Page 9)
19 The appellants were allowed $260 with respect to Mr McKerlie's rendered accounts which totalled $4555. For Ms Mikkelsen's attendances in court they were allowed $520, when her total accounts amounted to $4775.65. They were allowed $520 for Ms Horrigan, whose accounts totalled $3612.50. Mr Richardson's fee in the sum of $1400 for his appearance in Court was not allowed. He had argued a matter before the Court concerning alleged bias but his argument was not upheld.
20 The two successful defendants (the appellants) who had incurred legal costs of $19,313.93 and were successful in having the charges against them dismissed, were awarded a total sum for costs of $5800, which sum was then divided in half, with one half for each of them.
The Complaints
21 As has been stated above, the complaints were laid on 9 December 1996. That was after a complaint for a search warrant had been sworn on 3 December 1996 by a Senior Detective of police that he had received information that there was "a thing" in a place situated at the office of an MLA, and that of his secretary, Bronwyn Haddon, at Parliament House, 2 Harvest Terrace, West Perth and:
"…
(a) there are reasonable grounds for believing such thing will afford evidence as to the commission of the offence of stalking, section 338D of the Criminal Code …"
22 The Senior Detective deposed in the complaint:
"I therefore request that a warrant may issue under s 711 of the said Criminal Code to search for and seize the said thing, to wit:
'Telephone books, papers, diaries etc that may contain the telephone number 306 4469; the address 35 Colonial Circle, Gnangara; the names S, or M P, and any recordings of phone calls, visits etc to these persons.' " (Full names were used).
(Page 10)
24 Mrs P had complained of receiving numerous telephone calls. The Detective said that he had traced a telephone call and it had originated from Parliament House where Ms Haddon was employed. Another telephone call had also been traced from Mrs P's telephone.
25 I will not relate the facts of the complaints in detail but they included assertions that the appellants had made statements that Mrs P was "having an affair" with Mr Haddon. It was said that Mrs P had been caused mental anguish from harassment by the appellants and had been forced to change her address and phone number; that Mrs P had been "tooted" from another vehicle and that on that occasion Mrs Haddon had been seen waving both her arms at Mrs P near a school attended by Mrs P's children.
26 The Senior Detective requested the issue of the warrant to search the office of a member of Parliament and the office of Ms Haddon at Parliament House, 2 Harvest Terrace, West Perth for the items referred to in the complaint, as "such items could afford evidence as to the commission of the alleged offence".
27 In a statement of material facts which appears in the appeal book it is stated that:
"The two accused in this matter are mother and daughter and reside together in Edgewater, with the accused Carole being the mother. The accused Carole Haddon performs home duties, whilst the accused Bronwyn Haddon is employed at Government House as a secretary to the Government Whip. Both accused persons have formed the belief in this matter that the complainant was having an affair with the husband of Carole Haddon, who is also the father of Bronwyn. The assertion of having an affair with this person is strictly denied by the complainant. The incidents of the alleged matter are purported to have commenced on the weekend of September 30, October 1, 1995."
28 It was alleged that Mrs P had received numerous telephone calls at her home address and that on one occasion Mrs P had seen the appellant, Bronwyn Haddon, walking up the driveway towards her house. Thereafter a visit was made to Mrs P's home by Mrs Carole Haddon who spoke to Mrs P for approximately an hour and a half concerning alleged sexual abuse of children. I will not go into the details of that conversation as innocent parties might be affected. Mrs P had continually stated to Mrs Carole Haddon that she was not having an affair with Mr Haddon.
(Page 11)
29 After about another four weeks the telephone calls allegedly commenced again. They had allegedly persisted between late October 1995 and April 1996. Then there were allegedly further calls up to 29 July 1996.
30 It was contended for the prosecution that because of the fear installed into Mrs P by one telephone conversation in which she had been asked to watch a television programme, Mrs P had attended at her children's school and removed her children from class, in order to guarantee their safety. Mrs P and her family had then moved house to stay with relatives. Mrs P had later seen Mrs Haddon frantically waving her arms and trying to get Mrs P to come over to her near a school where Mrs P's children were. It was stated in the material facts that:
"With the authority of both the President of the Legislative Council and the Speaker of the Legislative Assembly, police executed a search warrant at the office of the Government Whip at Parliament House where Bronwyn Haddon works. A number of documents were seized from this location, which confirms much of the above facts."
31 It was stated that police officers had also executed a search warrant at the home address of both appellants. Documents were seized.
The Magistrate's Decision on the Complaints
32 After the hearing of the evidence against the two appellants the learned Magistrate, in his reasons for decision, said that the appellants had been jointly charged with unlawfully stalking Mrs P with intent to cause her apprehension of fear between 30 September 1995 and 9 December 1996. His Worship noted that pursuant to s 338E(1) of the Criminal Code, it is provided that:
"For the purposes of s 338D a person stalks another person by
(a) persistently following or telephoning that person …"
33 His Worship stated that evidence had been given by Mrs P, Mr P, Mr Letz, a sergeant of police, and seven other witnesses. - 10 witnesses in all. His Worship said that the principal witnesses in relation to the allegations were Mr and Mrs P, Ms S and Ms Fan. His Worship detailed Mrs P's evidence, including the fact that Mrs P had said that Mrs Haddon had accused her of having an affair with her husband, Mr Haddon. Mrs P had denied that that was the case. She said she had never met, been
(Page 12)
- introduced to, or spoken to Mr Haddon. Mrs Haddon had then warned Mrs P to watch out for her children, given that she was allegedly having an affair with Mr Haddon. She had suggested that Mr Haddon could harm Mrs P's children. Eventually Mrs P had asked Mrs Haddon to leave, which she did. Mrs P had subsequently reported the matter to the Wanneroo Police. Thereafter she had again received telephone calls.
34 Mrs P had given evidence that in one of the calls she had recognised the voice on the telephone as being that of Mrs Haddon. She had later reported the calls to Telstra. She had later seen Mrs Haddon near the entrance to her children's school, standing at the passenger's side door of a motor vehicle, waving her arms. The horn of the car "was pomming". Mrs P did not speak to Mrs Haddon but picked up her children and left. She had received no further telephone calls of the nature described.
35 Sergeant Letz had given evidence that he had visited Mrs Haddon's residence and had been told by Mrs Haddon that Mrs P was having an affair with her husband. Mrs Haddon had said that she had been concerned about Mrs P's children, given that Mrs P was having an affair with her husband.
36 A witness from Telstra gave evidence that two calls to Mrs P's number had been traced. They had originated from Parliament House, West Perth. Ms Haddon had been employed at Parliament House as a research assistant at that time.
37 Ms Fan gave evidence that Ms Haddon had told her that she had made telephone calls to Mrs P from Parliament House. She had, however, referred specifically to only one such call which was to advise Mrs P to watch a television show on channel 10. Ms Haddon had said that they would try to warn Mrs P of the dangers associated with Mr Haddon.
38 The learned Magistrate said that the appellants had been charged jointly with the offence. There was no express evidence that the appellants had discussed amongst themselves the commission of the offence. His Worship found that there were inferences available on the evidence before him that were inconsistent with the proposition that each of the appellants must have counselled or procured the other to commit the offence. He said there was no express evidence that the two appellants had formed a common intention to prosecute an unlawful purpose.
(Page 13)
39 His Worship said that Mrs Haddon had advised Sergeant Letz that she had been concerned about Mrs P's children, given her beliefs in relation to her husband. He said:
"However, when coupled with the evidence of Ms Fan that the defendants told her that they were attempting to warn Mrs P of certain circumstances, it seems to me that the only reasonable available inference is that they did form some common intention as to a course of conduct."
40 His Worship found that Ms Haddon had attended Mrs P's residence on one occasion and had made two telephone calls over a period of 13 months. Mrs Haddon had had personal contact with Mrs P on two occasions and had made two telephone calls to her over a period of approximately 13 months.
41 The learned Magistrate said that it was his view that he could not properly draw the inference that other telephone calls which had been received by Mrs P had been made by the appellants:
"That being the case, it is my view that the contacts above set out of the defendants, and each of them, with Mrs P, both personally and by telephone, being seven in number over a period of 13 months, do not have the quality necessary of continuing in time or repetitiveness to constitute persistency. That is, that it cannot be said that the defendants persistently followed or telephoned Mrs P."
42 His Worship further said that although it might not be necessary to make any finding with respect to intent, the complaint had been that it had been the intention of the defendants to cause apprehension of fear in Mrs P; that the only express evidence available as to the intent of the defendants had been the evidence of Ms Fan. Her evidence had been that the defendants had told her that the only reason they had contacted Mrs P was to warn her of the danger to her children that might arise if any alleged affair between herself and Mrs Haddon's husband continued. There had been no other express evidence in relation to the intent of the defendants. His Worship said:
"… that the defendants' belief in relation to any alleged affair between Mrs P and Mr Haddon may have been totally misguided, or that their contact with Mrs P may have been unreasonable and misguided, does not mean that the only
(Page 14)
- available inference able to be drawn is that they intended to cause apprehension of fear on the part of Mrs P."
43 His Worship concluded:
"For the reasons set out, I am not satisfied that the complainant has proved that the defendants persistently followed or telephoned Mrs P, nor that any contact made by them with her was with an intention on their part to cause an apprehension of fear, or indeed fear, to Mrs P. That being the case, for the purposes of s 8 of the Criminal Code, one cannot conclude that there was any common intention in relation to any unlawful purpose, though there was, as found by me, a common intention as to a course of conduct. Accordingly I am not satisfied the prosecution has proved the charge to the necessary degree."
Legal Advice and Assistance
44 It is apparent from the statement of material facts, which I have referred to above, that the incidents concerning the alleged offence were alleged to have commenced on the weekend of 30 September/1 October 1995 when the first phone calls were received by Mrs P. It is also apparent from the papers in the appeal book that on 30 May 1996 Mr McKerlie, on behalf of Ms B Haddon, lodged a complaint against persons connected with the offices of the CIB and the DPP; also that Mr McKerlie acted for Ms Haddon in connection with the stalking charge. In August 1996 Ms Haddon was advised that her complaints had been referred to the internal investigations unit of the WA Police Service.
45 In March 1997 Ms Mikkelsen was corresponding with the Superintendent of the Police Prosecutions at Joondalup concerning the stalking charge. In May 1997 Ms Horrigan was acting for Ms B Haddon and wrote to the former speaker of the Legislative Assembly in that regard and in particular about the execution of the search warrant at Parliament House.
46 On 7 April 1998 Mr Stephen Browne, acting for the two appellants, was advised by an officer from the DPP that the Crown conceded that legal professional privilege had attached to the documents which had been seized by the police from the workplace of Ms B Haddon.
47 It is apparent from the submissions which were made in writing on 4 May 1998 concerning the appellants' entitlement to costs, that
(Page 15)
- documents were returned to the appellants which the appellants had alleged were the subject of legal professional privilege.
48 It was asserted by the appellants before this Court, that from the beginning of the proceedings the prosecution had advised the learned Magistrate that it intended to lead evidence which the appellants were claiming was the subject of legal professional privilege. Further, that on 21 February 1997 the prosecutor had advised the court that there were to be 16 prosecution witnesses. The appellants were served with 16 witness statements from the prosecuting authorities.
49 The appellants claim that from early in the history of the matter, they had obtained legal advice in relation to the case generally, the question of legal professional privilege and the subject matter of the 16 prosecution witness statements. They had also sought legal advice in relation to the charge no 9787, which was ultimately dismissed as a result of the prosecution not leading any evidence with respect to it. That charge had been against Mrs Haddon. It had charged her with unlawfully stalking Mrs P. The complaint had been made on the same day as the joint charges against Mrs Haddon and Ms Haddon.
50 The appellants claimed in their submissions to this Court that at the hearing of the complaints, considerable Court time had been taken in determining the question of the admissibility of prosecution evidence concerned with legal professional privilege; further that the sum for legal fees and expenses which had been paid by the appellants to their solicitors, had been increased as a result of the appellants receiving advice that they should be individually represented; also due to the volume of the proposed evidence which had been provided to the appellants by the prosecution.
51 It was stressed for the appellants that at the commencement of the trial the prosecution had advised the Court that contrary to its previous advice that there would be 16 witnesses, there would be a lesser number of witnesses called. Importantly, it was claimed that had this advice been received earlier, it would have resulted in the appellants retaining their original solicitors rather than having to terminate their services. It was contended that Ms Horrigan had asked to be released as counsel because the appellants had not been able to raise her fees for the coming trial.
(Page 16)
Relevant Legal Principles
52 In Latoudis v Casey (1990) 170 CLR 534, the question of costs in a Magistrate's Court pursuant to s 97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vic) was discussed. At 565, Toohey J said:
"If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense, in defending the charge. What Kirby P said in Acuthan v Coates (1986) 6 NSWLR 472 at 480 of defendants to committal proceedings is apposite:
'The section recognises that persons accused of criminal offences can be put to a great deal of expense in defending themselves. Unlike civil litigation, they cannot simply compromise the matter. Their liberty, reputation and pocket are, or may be, at risk.'
It is unnecessary to speak in terms of a presumption; it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket."
53 In my opinion those principles are relevant in a case like this where it was found by the learned Magistrate that the payment of "greater costs than those thought to constitute the scale under the Act before the decision in Klahn v Talbot … is desirable pursuant to s 5(5) of the Act."
54 In considering this appeal it is also significant that on the Second Reading of the Official Prosecutions (Defendants' Costs) Bill on 16 October 1973, the Hon I G Medcalf said:
"This Bill represents an entirely new departure from the previous practice in respect of the payment by the Crown of the legal costs of a successful defendant. In the past when anyone was accused of an offence and acquitted, such person had to pay his or her legal costs and sometimes the costs could be quite considerable if a great deal of work had been performed in the preparation of the case, or if the case was protracted in some way. I am pleased the Government has introduced the Bill, because I have felt for some time that its provisions are probably justified. Its introduction follows a report by the Law Reform Commission which considered this question and came
(Page 17)
- to the conclusion it was desirable for the defendant or accused to have his costs paid in certain cases."
55 The Hon J Dolan (South-East Metropolitan - Leader of the House) then said:
"I thank Mr Medcalf for his support of the Bill … His second comment was that the passing of the legislation will mean that not only the Crown, but also local authorities and public bodies will give careful consideration to their position and will appreciate it before they institute proceedings which should have been more carefully considered beforehand. … I again thank him for his support of the Bill which I commend to the House."
56 The question was put and passed.
57 The Bill was read a second time.
58 The Bill passed through Committee without debate, reported without amendment, and the report adopted - Hansard, Vol 201, New Series 1973, p 3953.
59 In M v The Queen [1994] WAR 306 at 311, Seaman J, with whom Malcolm CJ and Anderson J agreed said:
"Furthermore, as Wallace J observed in Robson v Carter (unreported, Supreme Court, WA, Library No 4511, 19 May1982), the legislation forms part of a legislative programme brought down to indemnify successful defendants in both civil and criminal proceedings out of public funds."
60 In Stanley v Phillips (1966) 115 CLR 470 which was an appeal concerned with a fee for second counsel, Barwick CJ said:
"It (the fee for more than one counsel) is fundamentally concerned with the attainment of justice, which expanded into its elements, means that it is concerned with the presentation of a case to a court of law in such a manner and to such extent that a just result is able to be achieved. As it is to be supposed that the success of the party incurring the fees of counsel will involve the opponent in their payment, the expenditure must be confined to what is necessary, which means reasonably necessary or proper, to ensure such a presentation of the case.
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- … The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done: it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That, of course, he may do but not in my opinion at his opponent's expense. As the question is whether the presentation of a case to ensure a just determination reasonably requires the services of more than one counsel, it is the nature and the circumstances of the case which provide the determinants." (My words in brackets)
61 In my view those remarks also are pertinent to determining what costs were properly incurred in this case to enable justice to be done.
62 The learned Magistrate said:
"Apart from the attendances at court referred to on the part of Mr McKerlie, Ms Mikkelsen and Ms Horrigan, the balance of each of their accounts, where it is discernible, relates to attendances on the parties, discussions between solicitors, and enquiries in relation to other persons who may have been able to assist in the defence of the defendants."
63 As stated above, it was not until 8 April 1998 that the prosecution indicated that it no longer sought to tender documents the subject of the claim by Ms Haddon of legal privilege. That was on the last day of the hearing of evidence at the trial.
64 His Worship found that five solicitors had rendered accounts to the appellants, and also Mr Richardson of counsel.
65 I understand that Mr McKerlie had represented both the appellants and had rendered them accounts for $4555. He appeared for both appellants on two occasions in the Court on 13 December 1996 and 21 February 1997. He had been acting for Ms Haddon prior to the date on which the appellants were charged and, as I understand the situation, he was then acting on Ms Haddon's behalf in connection with the matters which subsequently resulted in the charges being laid.
66 It is my understanding that Ms Mikkelsen also originally acted for Ms Haddon in connection with the facts which resulted in the charges being laid. Ms Mikkelsen later acted for Mrs Haddon as well. Ms Mikkelsen rendered accounts of $4775.65. Ms Mikkelsen made four appearances at the Joondalup Court of Petty Sessions between 13 January 1997 and 5 December 1997.
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67 Ms Horrigan's three accounts directed to Ms Haddon totalled $3612.50 and disclosed four appearances at the Joondalup Court of Petty Sessions between 20 March 1997 and 13 January 1998. The Court was informed that Ms Horrigan later asked to be released as Ms Haddon could not raise the sum requested for Ms Horrigan's anticipated costs for the trial.
68 There is an account of $250 from Mr Quail who appeared in court on one occasion only for the purpose of seeking an adjournment. That application was unsuccessful.
69 There were three accounts from Stephen Browne & Co totalling $4720.68. One of those accounts is for work done to 27 March 1998 and is in the sum of $1628. The learned Magistrate said that that appeared to relate to the initial instructions to act and then instructing Mr Richardson of counsel. The matter involving Mr Richardson was an application seeking an order that the learned Magistrate disqualify himself from further hearing the matter due to his taking evidence in court in the absence of the appellants. The application was unsuccessful. Mr Richardson's account was for $1400.
70 Mr Browne appeared on the last day of the trial for both of the appellants. He was engaged in court for approximately half a day.
71 His Worship came to the conclusion that leaving aside the specific attendances at Court which are referred to in the accounts, the balance of the accounts of each of Mc Kerlie, Mikkelsen and Horrigan related to the general getting up of the case. His Worship said "Each of these practitioners would have appeared to have been involved in getting up the case to a greater or lesser degree."
72 His Worship also said:
"… it appears that a very substantial part of the costs claimed by the defendants relate to getting up. A substantial part of the getting up, that is that undertaken by McKerlie, Mikkelsen and Horrigan was not getting up that was subsequently of use at the trial. Indeed Mr Browne was required to go through the same, or similar procedure, in order that he would be in a position to properly represent his clients on that part of the trial where he did appear on their behalf."
73 There are no reasons given by the learned Magistrate for the statement that "a substantial part of the getting up, that is that undertaken
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- by McKerlie, Mikkelsen and Horrigan, was not getting up that was subsequently of use at the trial." As I understand it, Messrs McKerlie, Mikkelsen and Horrigan were advising the appellants all along and acting for them with respect to matters relevant to the charges during the time they represented them. It was not until the last day of the trial that Mr Browne appeared for the appellants.
74 Concerning Mr Browne's account his Worship said:
"… It would appear that the bulk of the remaining charges made by Mr Browne relate to getting up the case so that he could attend and do justice to his clients at that part of the trial he was instructed to attend on their behalf. That is obvious when one looks at his itemised accounts whereby time was spent reading transcripts, preparing for trial, researching procedure and researching law."
75 The learned Magistrate came to the conclusion that the necessary getting up had been charged for on several occasions as a result of the defendants changing solicitors. His Worship concluded:
"In my view, when considered in that light it cannot be proper and reasonable to allow charges that arise because of actions taken by a defendant, where investigations and preparation undertaken is duplicated and in this instance duplicated several times over. In my view the defendants are entitled to proper and reasonable costs for representation in court by McKerlie, Mikkelsen and Horrigan. They are entitled to an appropriate allowance for getting up on the part of Mr Browne. They are entitled to an appropriate amount of preparation in respect of the trial and attendance on the trial by Mr Browne. They are not entitled to any allowance in respect of getting up by McKerlie, Mikkelsen or Horrigan and they are not entitled to costs in respect to any applications made on their behalf that were unsuccessful. Those applications may be ancillary to the trial, however they being unsuccessful, it is my view that such unsuccessful applications ought not to be paid for by the complainant, in reality the State."
76 In my view the learned Magistrate erred in coming to the conclusion that the appellants were "not entitled to any allowance in respect of getting up by Messrs McKerlie, Mikkelsen or Horrigan". This is because most, if not all of their work, would have been properly chargeable in
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- connection with the relevant charges. Any "duplication" of that work, if it occurred, would have occurred when the process was repeated by Mr Browne. The learned Magistrate did not approach the calculation of the cost in that way.
77 It is also my view that the learned Magistrate erred in stating that the appellants were not entitled to costs in respect of any applications made on their behalf which were unsuccessful. The question should be whether the costs incurred "are properly incurred, whether they are reasonable," as the learned Magistrate said earlier in his reasons. That depends on all the circumstances of the case.
78 The question is can this Court now calculate the correct sum for costs. It will save considerable extra expense if that can be done.
79 On an ordinary taxation of costs before a taxing officer the parties are required to demonstrate why the costs claimed are reasonable. I would also place great weight on the spirit of the words of Toohey J that:
"… it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket."
80 There has never been any suggestion made in this case that the costs charged by the respective solicitors and counsel were not reasonable. What was said was, that the appellants by their changing of legal advisers had caused some of the costs to be "duplicated". That raises the question whether or not it was reasonable in all the circumstances for them to change their solicitors. It does not seem from the papers and the reasons for judgment that the learned Magistrate investigated this aspect in detail.
81 It is also relevant to the questions to be decided that the appellants contend that the seizure of the documents by the police officers, which documents were later conceded to be the subject of legal professional privilege, increased their costs. The appellants also claim that evidence was taken at the trial when they were both in hospital and unrepresented. That is why the application concerning bias was subsequently made by Mr Richardson.
82 The appellants also contended that when Mrs Haddon had first been approached by the police she had given them certain information about her husband but it had not been acted upon. The appellants contended that the contacts between them and Mrs P were to advise Mrs P that
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- Mr Haddon was a risk to Mrs P's children. I will not go into the details of that as I do not know enough about the background.
83 Ms Haddon said that she had first contacted Mr McKerlie and had sought legal advice about police action in connection with Mrs P. The Court was told that documents concerning a complaint against a police officer had been part of the privileged material which had been seized under the search warrant.
84 It was submitted for the appellants that it had been because the matter had not been properly investigated prior to the appellants being charged that the prosecution was always doomed to failure. It was further submitted that the costs awarded had not taken into account any of the errors on the part of the prosecution.
85 It was also submitted that the learned Magistrate had not dealt with the question of the witnesses who were not called which had increased the costs of the case, or with the questions which had been raised concerning privilege which had also increased the costs of the case. They had been primary issues.
The Issue of Privilege
86 It was submitted that the complaint to ground the search warrant on 3 December 1996 had been sworn in the very same week that Ms Braddon's complaint against a Detective Sergeant of police was being finalised by Ms Haddon with Mr McKerlie. The instructions to make a complaint had been given to Mr McKerlie in July 1996. In the first week in December 1996 final amendments were being made to the complaint. It was submitted that the complaint was to have been lodged at Mr McKerlie's office on the afternoon of Monday 9 December 1996. First thing on that morning police officers had executed two simultaneous search warrants, one at Parliament House and one at the appellant's home in Edgewater. It was said for the appellants that the documents concerning the complaint and all the drafts of it at both places had been seized.
87 It was submitted for the appellants that the first lawyer who had been engaged by Ms Haddon, Mr McKerlie, had been inextricably involved with the issue of privilege. That had been discussed at the trial at a voir dire.
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88 It was submitted that 10 of the 16 exhibits listed on the prosecution brief were privileged documents and included the complaint and drafts of it.
89 The appellants relied on the words of Brennan J in Baker v Campbell (1983) 153 CLR 52 at 108 where his Honour said:
"The second class of privileged documents which will not be permitted to afford evidence as to the commission of an offence comprises documents that are brought into existence by or on behalf of a party to litigation for the sole purpose of use in litigation, whether present or reasonably anticipated (Grant v Downs (1976) 135 CLR 674). The legal professional privilege attaching to such documents ordinarily ensures that they are not tendered in evidence. … If the prosecution, authorised to search for privileged documents, were able to open up the accused's brief while its own stayed tightly tied, a fair trial could hardly be obtained; in a criminal trial, to give the prosecution such a right would virtually eliminate the right to silence. It would deprive an accused of such right to an acquittal as he has by reason of a weakness in the Crown case which could be, but must not be, remedied by disclosure of the accused's instructions to his legal advisers … Even if the prosecution were authorised to gain custody of documents which had come into existence 'merely as the materials for the brief', a court before which such documents might be tendered in evidence would be bound to reject them lest its own adversary procedures be subverted."
90 It was submitted for the appellants that the seizure of the privileged documents had contaminated and complicated the entire proceedings; that a detective had admitted to using the documents at the trial; that even after the detective had admitted using the documents the trial had continued; that the prosecution had conceded the issue of privilege when it was too late, being after the information contained in the documents had become part of the proceedings.
91 The appellants contended that Mr McKerlie, who was their first lawyer, had represented them in relation to the issue of privilege. That had been"a huge issue". It was said that the appellants had consulted him in good faith. Some of his costs were said to have been incurred as a result of a police officer telephoning Ms Haddon at her place of employment and threatening her and also due to the prosecution seizing
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- the privileged documents. Mr McKerlie had first been employed to lay a complaint against a police officer. Then the police officers had taken the privileged papers.
92 The Court was told by Ms Haddon that the appellants had eventually ceased to be represented by Mr McKerlie because at that stage there had been a conflict of interest; that the seizure of the privileged documents, being Ms Haddon's documents, had raised different questions to those concerning her mother. Ms Haddon said that the lawyers had felt that this was an important issue and that the appellants had needed to be represented separately. Ms Horrigan had then been engaged for Ms Haddon and Ms Mikkelsen for Mrs Haddon.
93 It was submitted for the appellants that they had not caused six legal practitioners to be instructed as the learned Magistrate had stated. The circumstances of the case had led to that occurring.
94 It appears from an affidavit of Ms Haddon that in about January 1997 Mrs Haddon terminated the services of Mr McKerlie on the grounds that she no longer had faith in his capacity to competently represent the appellants and that in or about March 1997, Ms Haddon similarly terminated his services. Thereafter, the two appellants had obtained separate legal representation. Mrs Haddon had engaged Ms Mikkelsen in about January 1997 and Ms Haddon had engaged Ms Horrigan in March 1997.
95 Ms Haddon has deposed that on 12 January 1998 as a result of her inability to provide funds for the estimated fees of Ms Horrigan for the hearing, when it was anticipated the prosecution would have 16 witnesses, she was forced to dispense with Ms Horrigan's services. It was said by Ms Haddon that Ms Horrigan had let Ms Haddon go, and not the other way around. It had happened because Ms Haddon could not pay Ms Horrigan's costs. There had been no argument with Ms Horrigan whatsoever.
96 Ms Haddon has also deposed that in December 1997 Mrs Haddon terminated the services of Ms Mikkelsen because she had lost faith in her ability to competently represent her.
97 Ms Haddon has deposed that in December 1997 Mrs Haddon engaged the services of solicitor Hylton Quail to make an application to adjourn the hearing on the grounds that Mrs Haddon was unwell; further that in February 1998, Mrs Haddon and herself had instructed Stephen Browne & Co for the purpose of further representing them at the conduct
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- of the proceedings. The prosecution had by then advised the Court that the number of prosecution witnesses would be reduced from sixteen.
98 Ms Haddon says that following the engagement of Mr Browne she received advice from him that there were reasonable prospects of a successful application being made to have the learned Magistrate disqualify himself. Mr Richardson was then instructed as counsel and made the application. That application cost $1400 for Mr Richardson and $1628 for Mr Browne.
99 This Court was told that the reason Mr Richardson had represented the appellants at the bias hearing was because they contended that evidence had been led in their absence while they were both in hospital and unrepresented. It was said that a Dr Byrne, a psychiatrist, had been called to give evidence about one of the appellants and her state of mind. There had also been an officer from the Legal practitioner's Complaints Committee called to provide an envelope to the Court containing a diary which was to be used as part of the prosecution case.
100 This Court was informed that the hearing when neither of the appellants had been present had been on the day after they had both left the Court because Mrs Haddon had to go to hospital. It was said that the learned Magistrate had heard evidence on the question of whether or not the trial should go ahead.
101 Ms Haddon said that after the evidence had been led from Dr Byrne in their absence, Mr Richardson had originally intended to apply for a writ of prohibition in the Supreme Court but "to show good faith he decided instead to put the matters to the Magistrate". Ms Haddon said that because of the amount of money it would have cost to take the matter to the Supreme Court, they had decided to go on with the trial.
102 It was contended for the appellants that they had a fundamental right to be present at their trial and they had not been there on the day in question. That it was entirely reasonable for them to have Mr Richardson argue the question of bias. They thought the Magistrate was "heading for what we believe was a wrongful conviction"; that they should be entitled to argue ancillary applications if they properly went to the issues at the trial.
103 In my view both Mr Richardson's and Mr Browne's fees should be allowed because it was reasonable for the appellants to make the application in view of the fact that (as I understand the position) the learned Magistrate had taken evidence in the absence of both the
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- defendants who were ill at the time. The fact that the application was not upheld does not mean it was not reasonably and properly made. It is relevant that the appellants were both found not guilty.
104 The reason it is said that Ms Mikkelsen was discharged by Mrs Haddon in December 1997, was said to be that she refused "point blank" to deal with the separate charge no 9787 against Mrs Haddon which Mrs Haddon thought was duplicitous and which was later dismissed. It was said that before Ms Mikkelsen was discharged she had sent Mrs Haddon a 13 page letter outlining the reasons why it was appropriate for the police to maintain that charge; that at the first appearance of the appellants in Court the learned Magistrate had advised the police to deal with the charge and at the next hearing, to tell him what they intended to do concerning it. The prosecution was said not to have done that and the appellant's solicitors apparently did not raise the matter at the time. This Court was were told that the charge was only dismissed at the end of the trial at the appellants' insistence and after they had instructed Mr Browne.
105 It appears from the transcript that on 13 December 1996 the prosecution had sought to withdraw the charge (9787) against Mrs Haddon. After the learned Magistrate had asked some questions the prosecutor had asked for leave to adjourn the matter to make further enquiries. The Magistrate had adjourned the charge to 21 February 1997 and had advised the prosecution that he wanted to know what was happening with it before the mention date in February. The Magistrate advised that he did not think it was appropriate to have it just sitting there. Apparently nobody raised the matter again until the day it was dismissed.
106 In his reasons for decision delivered on 15 November 2000, which reasons were concurred in by the learned Chief Justice and Pidgeon J, Justice Miller said at [6]:
"The complaint was ultimately dismissed in the Court of Petty Sessions at Joondalup. No evidence was ever adduced before the court in relation to it, and although the prosecutor sought to withdraw it at the conclusion of the hearing of the charge which had been preferred jointly against the appellants, he was ultimately forced to inform the court that no evidence would be adduced on the complaint and the learned Magistrate thereupon dismissed it."
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107 Miller J came to the conclusion that the way in which that complaint had been dealt with was quite regular because only the joint charge had proceeded to trial.
108 It was argued very strongly for the appellants that it was the prosecution's fault that they had been wrongly charged. They were eventually acquitted. It was contended that the charges had been "contaminated completely with the issue of privilege" and that those considerations should have resulted in full indemnity costs under the Act pursuant to s 5(5), where it is provided that costs may be ordered to exceed the scale:
"… if the Court is satisfied that having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs for that item is desirable."
109 The appellants stressed that it had also been the 16 proposed prosecution witnesses which had inflated the costs. At the trial they had suddenly been reduced to a lesser number. The solicitors had had to deal with a very substantial brief "full of my privileged materials". After that the prosecution had said: "Well, we're not using those other seven witnesses but you have incurred the costs and you are now responsible for the getting-up involving those lawyers dealing with those papers". It was submitted that that had been the fault of the prosecution.
110 It was submitted that the relevant costs order "bears no real relationship to the event being an oppressive trial. That is what is missing from the costs order. The fact the trial was oppressive."
111 The appellants also contended that two of the police officers involved in the investigations had not appeared at the hearing. One officer, who had witnessed the seizure of the privileged documents, was said to have been in South America, whilst another was said to have been in New Zealand. It was asserted by the appellants that both of those officers had resigned from the police force; further that on 4 September 1997, the police prosecutor had been advised by the learned Magistrate that the officer in New Zealand "would need to come back to be cross-examined." That had not happened.
112 It was contended that all of the abovementioned matters had increased the special difficulty, complexity and importance of the case and had not been recognised in the sum of $5800 for the costs. That the discretion had fundamentally miscarried.
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113 The appellants relied on the reasoning in Haag v Underdown (1968) 13 FLR 235 at 236 - 237 where, it was said:
"… but it is equally clear that where the circumstances warrant it, an order for costs may be made against a police complainant, for example, where a complaint is made in unjustifiable misunderstanding of the law, or where the evidence for the prosecution is and should have been seen to be, manifestly insufficient for a prima facie case. Without attempting to pronounce a formula which will explain every possible case and without touching on cases of deliberate misconduct, as this case was, it may perhaps be said that there is a case for such an order for costs if the police officer, or those instructing him, should have known better than to lay the complaint or proceed with it."
114 It was submitted for the appellants that they were the circumstances applicable to this case; that the learned Magistrate in his written decision had completely disregarded the conduct of the prosecution in using the privileged documents.
115 It was submitted that during the proceedings his Worship had said words to the effect that the evidence of a detective had added little. The appellants contended that the relevant evidence had taken up to 100 pages of transcript and that the problems arising from it had not been taken into account in the costs order.
116 Reliance was placed for the appellants on the dicta of Mitchell J in Newman v Byrne [1969] SASR 350 at 353 where her Honour said:
"If the Court is of the opinion, after dismissing a complaint, that it was made recklessly and without sufficient consideration, it is quite proper for the Court to compensate a defendant by awarding the costs."
- See also 354 of the report, where her Honour referred to the absence of three material police witnesses.
117 In this case it was said that matters had gone further, because one of the police officers who had left the country had been the police informant and the exhibits officer who had been responsible for the privileged documents.
118 The appellants also relied on the dicta in House v The King (1936) 55 CLR 499 at 505 where it was said:
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- "If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his, if it has materials for doing so."
119 In my view, it is a significant consideration in this matter that throughout much of the time the lawyers were acting, there were two defendants and not one. The costs seem to have been assessed by the learned Magistrate on a single basis as if there were one defendant only. Further, in my opinion as stated earlier, it was not correct, or in accord with the reasoning in Washbourne (supra), to limit the sum for "getting up" to costs of the lawyer (Mr Browne) who represented the appellants on the last day of the trial.
120 Mr McKerlie, who charged the appellants $4555, initially represented both of the appellants. His first account of $500 dated 31 July 1996 was concerned with making of a relevant complaint about a police officer. The appellants made the point that of the $4555 paid to Mr McKerlie they were awarded only $260 by the learned Magistrate; that of the $4775.65 paid to Ms Mikkelsen, Mrs Haddon was awarded $520, and of the $3612.45 paid to Ms Horrigan, Ms Haddon received $520. The learned Magistrate allowed $4500 of Mr Browne's fees which in fact totalled $4720.68.
121 The appellant asserted that Mr McKerlie who had charged them $4555, had not had the witness statements or the evidence brief, whereas Messrs Horrigan and Mikkelsen had both had them.
122 It was contended that the Magistrate did not allow any costs in respect of the witnesses who were not called, one of whom had included the exhibits officer who would have given evidence as to the seizure of the privileged documents. It was complained that by not making allowance for that aspect of the case the learned Magistrate had not taken into account all the facts.
123 It was contended that the witnesses who were not called had included the police officer concerned with the exhibit list, who was the informant and another police officer who had taken part in the seizure of the documents from Parliament House, plus another detective from Warwick CIB who executed the search warrant at the appellant's home. There were
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- also some civilian witnesses, including Mrs P's doctor, and the principal from the school who were not called.
124 The evidence brief was said to have been received by the appellants in or about May 1997. Mr McKerlie did not see the evidence brief. He had advised and acted in connection with the question of privilege and had requested documents from the police pursuant to the Freedom of Information Act. The appellants told the Court that he had been acting in relation to the defending of the charges and nothing else.
125 The learned Magistrate did not refer in his reasons to the fact that Mr McKerlie had been instructed in connection with the early conduct of the prosecution, including the issue of privilege. The point was made by the appellants, that to be deprived of costs properly incurred would amount to a financial penalty being imposed on them when they were not guilty of an offence. Further that as the learned Magistrate did not in his reasons discuss the issue of privilege, the award of the costs did not relate to what the case was really all about.
126 The appellants rely on the dicta in Fewster v Briggs [2000] WASCA 36 where it was said:
"If there has been a failure of the system in a particular way then the person affected by that failure, even though he may have contributed to it, should not be deprived of his costs unless his contribution has been a very substantial one."
127 As I understand the situation, after Ms Mikkelsen was discharged by Mrs Haddon, Mrs Haddon's next lawyer was Mr Quail. Then Mr Browne had to get up the case again. Mrs Haddon's share of Mr Browne's getting-up fees should not be allowed as in my view there was not a sufficient reason for her to dismiss Ms Mikkelsen. On the basis that $2500 was allowed for getting-up to Mr Browne, $1250 of that sum could be attributed to Mrs Haddon. That sum should, in my view, not be paid again. However Mrs Haddon should be allowed all of Ms Mikkelsen's fees, less the $1250 of Mr Browne's $2500.
128 Mr Quail's $250 account was incurred in an attempt to vacate the trial dates so that Mrs Haddon could have heart surgery. I understand that Mrs Haddon had spent 10 days in hospital after an attack of pulmonary oedema in November 1997. Mr Quail apparently asked the learned Magistrate to adjourn the trial for approximately six months to allow Mrs Haddon to recover. That application was refused. It was said that the
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- learned Magistrate had not taken sufficient account of the illness of Mrs Haddon. In my view Mr Quail's account should be allowed in full.
129 Mr Richardson's fee concerning the question of bias, after evidence had been led in the absence of the appellants and after Mrs Haddon had been taken ill at the trial, in my view should be allowed in full. So should the instructing solicitor's costs in that regard.
130 On the assumption that it was unavoidable for Ms Haddon to release Ms Horrigan due to the proposed lengthy trial and before the prosecution reduced the number of witnesses to be called, I would allow Ms Horrigan's accounts in full.
131 Applying a broad approach, in the end result, the only deduction I would make from the $19,313.83 costs which were charged to the two appellants, would be $1250, being Mrs Haddon's share of Mr Browne's $2500 which was allowed for getting-up. I realise that this is a broad approach but if this is a reasonable result, the matter should be ended now without further cost to the appellants or the State.
132 In my view, the resulting sum of $18,063 for both the appellants is not out of line with the $13,009 allowed to the respondent in Washbourne (supra).
133 I would therefore allow the appeal and make appropriate orders.
134 STEYTLER J: I have had the advantage of reading the reasons for decision of Wallwork J. It is consequently unnecessary for me to repeat the facts and circumstances which have given rise to this appeal except insofar as is necessary to explain the different conclusion at which I have arrived.
135 The stalking charges which had been brought against each of the appellants were dismissed by the Magistrate on 21 April 1998. The appellants immediately applied for orders for costs pursuant to the Official Prosecutions (Defendants' Costs) Act 1973 ("the Act"). The application was adjourned to enable full submissions to be made. Written submissions were lodged, supported by an affidavit of each of the appellants. The application then came on for hearing on 29 July 1998.
136 On that day the appellants were represented by counsel. He submitted, on their behalf, that, because of the "special difficulty, complexity, or importance" of the matter, the appellants should be awarded costs in an amount greater than those which would have been awarded in the ordinary course.
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137 Under s 5(1) of the Act, a successful defendant is, subject to the Act, "entitled to his costs". Section 5(5) provides that:
"The amount of the costs ordered, other than Court fees, shall be in accordance with the scale fixed from time to time by a determination under s 58W of the Legal Practitioners Act 1893, but nevertheless the Court may make an order for payment of costs including an amount in excess of the amount for any item in that scale if the Court is satisfied that having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs for that item is desirable."
138 Consequently, as has been pointed out by Ipp J in Washbourne v State Energy Commission of Western Australia (1992) 8 WAR 188 at 194, the starting point is that the scale items are to be the basic guidelines in determining the amount of costs to be awarded, but if the matter is one of special difficulty, complexity or importance, then the court can order higher costs than those laid down in the scale.
139 The Magistrate was obviously conscious of these considerations. He agreed with counsel for the appellants that the matter was one of special difficulty and complexity. He referred, in this respect, to the issue, which arose during the course of the proceedings, whether documentary evidence seized from the second-named appellant was the subject of legal professional privilege. He referred, also, to the paucity of authority in relation to stalking charges.
140 Having arrived at this conclusion, the Magistrate carefully recorded the history of the proceedings. I will repeat that history, so far as it is material.
141 The two matters had first come before the court on 13 December 1996. At that time the appellants were represented by a solicitor, Mr McKerlie. The appellants elected to have the matter dealt with summarily and the matter was remanded for hearing on 24 and 25 March 1997. It was then thought that the trial would take two days and that there were 10 witnesses to be called. However the matter came back before the court on 21 February 1997 as it then appeared that the number of witnesses had doubled and that the matter would take some four days to complete. It was adjourned to be heard on 20, 24, 25 and 26 March 1997.
142 On 20 March 1997 the second-named appellant applied to have the proceedings adjourned as she had dispensed with the services of her previous solicitor and had recently instructed a new solicitor. The matter
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- was adjourned to 11 April 1997 for mention. On that day it was adjourned to a callover on 10 June 1997. On 10 June 1997 the matter was again not ready to proceed to trial and it was further adjourned to a callover on 12 August 1997. On that date it was further adjourned to 4 September 1997. On 4 September 1997 trial dates were fixed for a period of five days from 19 – 23 January 1998.
143 By this time the appellants were represented by different solicitors. The second-named appellant was represented by Ms Andree Horrigan and the first-named appellant was represented by Ms Ann Mikkelsen.
144 Then, shortly before the trial was due to start, the first-named appellant applied to have the proceedings adjourned. She was represented, for that purpose, by another solicitor, Mr Quail. The application was unsuccessful and the trial commenced on 19 January 1998.
145 Neither of the appellants was represented at the commencement of the trial. On 21 January 1998 the trial could not proceed because each of the appellants had been hospitalised. The matter came back before the court on 22 and 23 January 1998 before being adjourned to 11 February 1998. On that date the two appellants were again unrepresented and the matter was remanded to 8, 9 and 15 April 1998 for the trial to be completed.
146 On 1 April 1998 the appellants applied to have the Magistrate disqualify himself upon the grounds of bias. They had, by then, appointed Mr Stephen Browne as their solicitor. As Wallwork J has said, the application to have the Magistrate disqualify himself was grounded upon the appellants' contention that his Worship had heard evidence in their absence while both were in hospital and unrepresented. Submissions were made on their behalf accordingly by Mr R Richardson, who had been briefed as counsel for that purpose. The application was unsuccessful.
147 The trial resumed on 8 April 1998, upon which date the appellants were again represented by Mr Browne. The Magistrate reserved his decision until 21 April 1998. On that date he gave his decision.
148 Having recounted this history, the Magistrate turned to the amount of the costs sought by the appellants. They claimed an amount of $19,313.83. This was made up of accounts from Mr McKerlie totalling $4,555, accounts from Ms Mikkelsen totalling $4,775.65, accounts from Ms Horrigan totalling $3,612.50, an account from Mr Quail for $250, an
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- account from Mr Richardson for $1,400 and accounts from Mr Browne totalling $4,720.68.
149 The Magistrate next considered what had been done by each of those solicitors. He had little information so far as the services provided by Mr McKerlie were concerned. All that was before him were two receipts totalling $4,055. There was no account and consequently no itemised detail of how that amount was made up (and there was nothing, at all, before him with respect to the additional sum of $500 which had been paid to Mr McKerlie). However, the Magistrate noted that Mr McKerlie had appeared on behalf of both appellants on two occasions, being 13 December 1996 and 21 February 1997. He said that it also appeared from the evidence that Mr McKerlie had acted, at least on behalf of the second-named appellant, prior to the date upon which the two appellants were charged. There was no evidence before him to enable him to know what part of Mr McKerlie's charges related to the period preceding the charging of the appellants.
150 All of Ms Mikkelsen's accounts were directed to the first-named appellant. They encompassed, amongst other things, four appearances (charged at $130 each) between 13 January 1997 and 5 December 1997.
151 The accounts rendered by Ms Horrigan to the second-named appellant also disclosed four appearances, in this case between 20 March 1997 and 13 January 1998. Mr Quail's account related to his solitary appearance before the court as did that of Mr Richardson.
152 Insofar as Mr Browne is concerned, one of his accounts, for $1,628, appeared to relate to initial instructions to act and to the instructing of Mr Richardson in relation to the application heard on 1 April 1998.
153 The Magistrate said that, apart from the various attendances at court to which I have referred, the accounts of Mr McKerlie, Ms Mikkelsen and Ms Horrigan appeared to relate to attendances on the parties, discussions between solicitors, enquiries in relation to other persons who may have been able to assist in the defence of the defendants and the general getting up of the case for trial. The Magistrate also concluded that the bulk of Mr Browne's charges, apart from a substantial part of his first account and a small part of his second, also related to getting up the case for trial. The Magistrate formed the opinion that a substantial part of the getting up that was undertaken by Mr McKerlie, Ms Mikkelsen and Ms Horrigan was not of any use at the trial and that Mr Browne had been required to go through
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- a similar procedure in order to be in a position properly to represent his clients.
154 The Magistrate then went on to reach the following conclusion:
"In my view, undoubtedly defendants are entitled to change their solicitor or counsel during the course of proceedings, however it can not be said that if they so do then all duplicated effort, duplicated costs and duplicated expenses can be considered to be proper and reasonable costs. In my view the words proper and reasonable import into considerations to be made some objective notion as to what could normally be expected to be a reasonable sum payable by way of legal costs and expenses for proper investigation, preparation and representation to be provided. In my view when considered in that light it can not be proper and reasonable to allow charges that arise because of actions taken by a defendant where investigations and preparation undertaken is duplicated, and in this instance duplicated several times over. In my view the defendants are entitled to proper and reasonable costs for representation in Court by McKerlie, Mikkelsen and Horrigan. They are entitled to an appropriate allowance for getting up on the part of Mr Browne. They are entitled to an appropriate amount for preparation in respect of the trial and attendance on the trial by Mr Browne. They are not entitled to any allowance in respect of getting up by McKerlie, Mikkelsen or Horrigan and they are not entitled to costs in respect to any applications made on their behalf that were unsuccessful. Those applications may be ancillary to the trial however they being unsuccessful it is my view that such unsuccessful applications ought not be paid for by the complainant, in reality the State."
155 His Worship concluded that the appellants were entitled to an order for costs of $5,800. This comprised $260 for two attendances by Mr McKerlie, $520 for four attendances by Ms Mikkelsen, $520 for four attendances by Ms Horrigan and $4,500 in respect of the services provided by Mr Browne. These last services were broken up into three components. The first related to preparation for trial and attending trial, in respect of which the Magistrate allowed $1,200. The second related to getting up for trial, including disbursements, in respect of which the Magistrate allowed $2,500. The third related to the attendances at the court on 30 July 1998 and 26 August 1998, in respect of which the Magistrate allowed $800. In each case the amounts were expressed to
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- relate to items referred to in the scale which had been gazetted under the Act ("the scale") and which, the Magistrate said, still provided some guidance.
156 The Magistrate then concluded that, because each of the appellants had faced one charge, the amount allowable should be divided equally between them.
157 The appellants appealed against that decision on some 15 grounds. It is unnecessary to recite them. The learned Judge below, before whom the appeal was heard, ruled that there was no substance to any of those grounds. He said, in effect, that the Magistrate had made a careful analysis of all relevant considerations and that his Worship had had the advantage of knowing what steps had been taken in the action, and their fate. His Honour expressed the opinion that it was "quite appropriate for the learned Magistrate to discount the application for costs in the light of the manner in which the case was conducted and discount the costs by reason of the appellants' unsuccessful applications".
158 He went on to say (par 23):
"As has been stressed repeatedly in the Supreme Court, costs are always discretionary, and in this case, in my view, the learned Magistrate went to a great deal of trouble in analysing the detail of each of the accounts presented to him for consideration by the appellants. In the result, the award of $5,800 was, in my view, a generous award, bearing in mind that the majority of the expense to which the appellants were put was a result of their particular approach to the case."
159 The appellants were given leave to appeal to this Court against his Honour's decision on seven grounds. These read as follows:
"a. In dismissing the Applicants' Costs Appeal and refusing Leave To Appeal that decision, His Honour Mr Justice Scott has erred in law by failing to hold that the Applicants have established an arguable case, and by failing to address the Applicants' following Grounds of Appeal, denying substantial justice to the Applicants;
...
f. An oppressive trial foredoomed to failure clearly meets the test of 'special difficulty, complexity, or importance'
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- contemplated by Section 5(5) of the Official Prosecutions (Defendants' Costs) Act 1973 ('the Act'), entitling a successful Defendant to a discretionary award of full Costs;
- g. The Order For Costs of the learned Magistrate was inadequate as the learned Magistrate misconstrued Section 5(5) of 'the Act', and erred in law in failing to properly take into account the relevant facts and law of the case in exercising a judicial discretion pursuant to Section 5(5) of 'the Act';
...
j. The learned Magistrate erred in law in misconstruing the meaning of 'all other expenses' in Item 11 of the Costs Scale 1991 referred to in 'the Act', and relied upon by the learned Magistrate;
k. The learned Magistrate erred in fact and law in the particular circumstances of the case in holding that legal Costs paid by the Defendants to more than one solicitor engaged to represent them on the trial who did not do so, were not 'reasonable and proper expenses' under Item 11 of the Costs Scale 1991 referred to in 'the Act'; and in failing to give effect to the right of a client to change their legal adviser at any time;
l. The learned Magistrate erred in law in disentitling the Defendants to the legal Costs of unsuccessful applications ancillary to the trial, by failing to properly take into account that these applications were exceptional and of fundamental importance to the interests of justice and fair trial;
m. The learned Magistrate erred in law in failing to separately determine the amount of Costs claimed by each Defendant for separate representation in the defence of an official prosecution;
... "
160 As the matter was argued before us, the appellants contended that they should have been given all of their costs having regard for the fact
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- that the trial was an "oppressive" trial, which was "foredoomed to failure" and that all of the costs incurred by them were reasonably and necessarily incurred, including those incurred in the course of their unsuccessful applications.
161 I should say at once that any arguments with respect to the oppressive nature of the proceedings are foreclosed to the appellants. The Full Court, when giving leave to the appellants to bring this appeal (see Haddon v Everitt [2000] WASCA 350) declined to grant them leave to raise that argument. Miller J (with whom the other members of the Court were in agreement) found (par 26) that there was nothing to suggest that the prosecution had been oppressive.
162 As to the argument that the prosecution was foredoomed to failure, it seems to me that this, too, has no substance. While it may be accepted that the appellants were rightly acquitted of the charges brought against them, there was, on the evidence of the complainant, an arguable case against them. The complainant gave evidence of a number of incidents involving the appellants and of many "nuisance" telephone calls by a person or persons who declined to speak when each call was answered. It was open to a court to infer, if the complainant's evidence was otherwise to be accepted, that the caller or callers were one or both of the appellants. The fact that the Magistrate ultimately declined to draw that inference does not mean that the case was foredoomed to failure.
163 That said, the Magistrate did, in fact, find that there were grounds for awarding a greater sum by way of costs than would ordinarily be the case. I have referred, above, to his conclusion that the matter was one of special difficulty or complexity.
164 However, that does not mean that the appellants were entitled to be indemnified in respect of all of the costs incurred by them. It was, in my respectful opinion, open to the Magistrate to deny to the appellants their costs in respect of unsuccessful applications brought by them (in the form of the unsuccessful application for the adjournment and the unsuccessful application to have the Magistrate disqualify himself) and to disallow costs to the extent to which they were unreasonably incurred.
165 As to the first of those propositions, it seems to me, with respect, that the learned Judge below rightly declined to interfere with the Magistrate's exercise of discretion in disallowing the costs incurred by Mr Quail on the unsuccessful application for an adjournment, and those incurred by Mr Richardson and Mr Browne in respect of the unsuccessful application
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- to the Magistrate to disqualify himself. It was within the scope of his discretion to do so and no basis has, in my opinion, been shown for interfering with it. Indeed, the allowance of $4,500 made in respect of Mr Browne's fees was generous when regard is had to the disallowance of those fees which were incurred by him in respect of the unsuccessful application, bearing in mind that he charged a total of $4,720.68.
166 As to the disallowance of costs which were unreasonably incurred, it seems to me, once again, that the Judge below rightly declined to interfere with the Magistrate's conclusion that there had been some unnecessary duplication arising out of the fact, and this was common cause, that the services of each of Mr McKerlie and Ms Mikkelsen were terminated upon the grounds of dissatisfaction with their performance and that Ms Horrigan had ceased to act in circumstances in which the appellants were unable to provide her with funds sought by her in respect of future services.
167 That said, it does seem to me, with due respect, that the learned Magistrate erred, and should have been found to have erred, in failing to make a greater allowance for the fact that the "getting up" by Mr Browne related only to a late stage of the trial and that some, at least, of the work done by one or more of Mr McKerlie, Ms Mikkelsen and Ms Horrigan did not overlap what was done by Mr Browne and was, consequently, reasonably necessary for the purpose of assisting the appellants to prepare for trial, including some attendances upon the appellants, enquiries in relation to other persons who might have been able to assist in the defence and some general getting up and work done by Mr McKerlie (the nature of which has been referred to by Wallwork J) in relation to the issue of legal professional privilege. However, I would not, in that respect, be prepared to allow to the appellants any more than an additional sum of $2,000.00. The preparation and "getting up" fees allowed in respect of Mr Browne's costs were, as I have said, generous, having regard for the time which was expended by Mr Browne on the unsuccessful application to disqualify the Magistrate. Moreover (and importantly in my opinion), those fees significantly exceeded the amount contemplated by the scale in respect of attendance at, and preparation for, the trial. I have already said that the scale still provides some guidance in respect of an appropriate starting point, notwithstanding that this matter was found to have been unusually difficult and complex. Any greater allowance than an additional sum of $2,000 would, in my respectful opinion, be over generous. It would also not sufficiently cater for such overlap as must still have occurred between the various solicitors or for the fact that the services of two of those solicitors were terminated because of their alleged
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- incompetence. Also, so far as Mr McKerlie's services are concerned, it should not be overlooked that some part of these (so far as anything can be ascertained from the limited information which was before the Magistrate) were directed to a matter other than the defence of the prosecution, being the laying of a complaint against a police officer.
168 I would consequently allow the appeal, but only to the extent of increasing the costs which should be awarded to the appellants by the sum of $2,000.00, taking the total award to one of $7,800.00, to be divided equally between the appellants.
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