Harvey v Bofilios (No 2) - [2018] NTSC 32

CITATION:Harvey v Bofilios (No 2) [2018] NTSC 32
PARTIES:HARVEY, Alicia Brooke

v
BOFILIOS, John

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 8 of 2016 (21456835)
DELIVERED ON:  18 May 2018
DELIVERED AT:  Darwin
HEARING DATE:  28 August 2017
JUDGMENT OF:  Grant CJ
CATCHWORDS:

CRIMINAL LAW – COSTS OF UNSUCCESSFUL PROSECUTION APPEAL
Unsuccessful appeal by prosecution against finding of not guilty – errors found on part of Local Court – error occasioned by conduct of prosecution case – reasons apparent from time appeal lodged why Local Court findings might not be disturbed – respondent did not induce prosecution of the appeal – respondent did not conduct appeal in a manner which occasioned unnecessary expense – costs follow the event – lump sum costs order appropriate.
Local Court (Criminal Procedure) Act (NT) s 77C, s 163, s 177, s 178
Local Court (Criminal Procedure) Regulations (NT) r 4, r 5
Supreme Court Rules (NT) O 1, O 63, O 83
Latoudis v Casey (1990) 97 ALR 45, Mines v Doddrell [1938] SASR 90, Tipping v Heinemann [1922] SASR 424, Tonkin v Stanton (No 2) (Unreported, Supreme Court of South Australia, No 950 of 1986, 17 July 1986), Walters v Owens (1973) 21 FLR 138, referred to.
REPRESENTATION:
Counsel:
Appellant:DJ Morters
Respondent:  J Franz
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Darwin Family Law
Judgment category classification:    B
Judgment ID Number:  GRA1812
Number of pages:  15

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Harvey v Bofilios (No 2) [2018] NTSC 32

LCA 8 of 2016 (21456835)
BETWEEN:

ALICIA BROOKE HARVEY

Appellant

AND:

JOHN BOFILIOS

Respondent

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered 18 May 2018)

On 28 August 2017, I delivered the decision in an appeal brought by the informant pursuant to s 163(3) of the Local Court (Criminal Procedure) Act (NT) from an order or adjudication of the Local Court finding the respondent not guilty of three charges on information dated 9 December 2014.
The appeal was brought on two grounds. The first was that the Local Court erred in finding that there was no case to answer on two of the charges on the basis that the prosecution had failed to adduce evidence that a dangerous drug was supplied as alleged in each of the charges. The second ground of appeal was that the Local Court erred in finding that there was insufficient evidence that the respondent had supplied dangerous drugs as alleged in a third charge.
I dismissed the appeal for the reasons described in Harvey v Bofilios [2017] NTSC 68, which are discussed further below. The respondent then made application for his costs of the appeal.
The statutory provisions
The appeal was brought by the prosecution pursuant to s 163(3) of the Local Court (Criminal Procedure) Act (NT). The power to award costs on appeal is conferred by s 177 of the Local Court (Criminal Procedure)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NTSC 32
Decision Date: 18 May 2018

CaseChat Overview and Summary

In the case of Harvey v Bofilios (No 2), the appellant, Alicia Brooke Harvey, brought an unsuccessful appeal against a Local Court finding that the respondent, John Bofilios, was not guilty of three charges related to the supply of dangerous drugs. The appeal was dismissed, and the respondent subsequently applied for his costs of the appeal. The Supreme Court of the Northern Territory was tasked with determining the appropriate costs order for the respondent. The court considered the statutory provisions, case law, and the principles governing the award of costs in appeals from summary criminal proceedings.

The court considered the principles governing the award of costs in appeals from summary criminal proceedings, noting that costs generally follow the event and are awarded to the successful party. However, there may be exceptional circumstances that warrant a departure from this rule. In this case, the court found that the respondent did not induce the prosecution of the appeal and did not conduct the appeal in a manner that caused unnecessary expense. The court concluded that there was no reason to depart from the ordinary rule that costs should follow the event, and thus, the respondent was entitled to his costs of the appeal.

The court then addressed the quantum of costs, noting that while the prescribed scale of costs in the Local Court (Criminal Procedure) Regulations provided a benchmark for this type of matter, it was not strictly bound by it. The court considered factors such as the length and complexity of the case, the added cost and inconvenience to which an order for taxation would give rise, and the interests of justice generally. Ultimately, the court awarded the respondent costs in the lump sum amount of $1,500, considering it to be a reasonable and appropriate sum in the circumstances.

In conclusion, the Supreme Court of the Northern Territory awarded the respondent costs of the appeal in the lump sum amount of $1,500. The appellant was ordered to pay these costs to the Registry Manager of the Supreme Court within 28 days, which on receipt is to be paid to the solicitors for the respondent.

Orders