Hodgens v Williams - [2005] QDC 371

[2005] QDC 371

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3402 of 2004

ROCK ANTHONY HODGENS	Appellant
and
ANDREW ROSS WILLIAMS	Respondent

BRISBANE

..DATE 21/10/2005

ORDER

CATCHWORDS: Justices Act 1886, s 158, s 158A(2)(a),(d),(f),
s 232(4) - costs order where appeal against findings of guilt of counts of common assault succeeded - costs of appeal could not be awarded - circumstances relevant to awarding costs of summary trial against unsuccessful police officer complainant considered - costs awarded - how costs of two wasted days in Magistrates Court should be dealt with - making of costs order adjourned to allow appellant to investigate whether any practice existed of allowing counsel fees as outlays on top of scale costs under the Justices Regulation 2004 Schedule 2.

HIS HONOUR: The appellant succeeded in his appeal against a Magistrate's finding him guilty of two charges of common assault which were of such a minor nature that there was neither conviction nor penalty, and that the Magistrate expressed surprise that the matters had come to Court.

The appeal was allowed on "technical grounds" from one point of view - in that my finding was that the Magistrate appeared to have not applied the criminal standard of proof in respect of exclusion by the Prosecution of the defence of provocation. But it should not be thought that any lack of importance is being ascribed to the standard of proof. The matters are so minor that there was no question of returning the matter to the Magistrates Court. Even if that had been possible, the parties have been subjected to a very protracted hearing.

As Mr Hungerford-Symes says, it may well be that the correct outcome is that contrary to his own view, Mr Hodgens should have been found guilty. Because of section 232(4) of the Justices Act 1886, Mr Hodgens can obtain no order for costs of his successful appeal. The Court is asked by his counsel to award costs under section 158 of the Justices Act 1886. Section 158A seems to me to have been the State legislators' response to Latoudis v Casey (1991) 170 CLR 534. It confines the circumstances in which an unsuccessful complainant who is a police officer.

The legislators took a more protective view of the pecuniary interests of the police force, and I suppose of the taxpayers of the State, than the majority in the High Court. The circumstances relied on by Mr Hungerford-Symes in resisting the making of an order for costs are those described in subsection (2)(a), (d), and (f). Ms Cuthbert has made it clear that she has nothing whatever to say adverse to the Police Prosecutor at the trial so far as (a) is concerned. In respect of (d), it is somewhat artificial, perhaps, to contemplate the outcome of the appeal being interpolated in the proceedings of the trial. So far as (f) is concerned, the situation is, as page 68 of the transcript of the trial shows, that Mr Hodgens failed to give his…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Hodgens v Williams

Details

AGLC: Hodgens v Williams [2005] QDC 371
Case: [2005] QDC 371
Decision Date: 21/10/2005

CaseChat Overview and Summary

Hodgens v Williams is a case where the appellant, Rock Anthony Hodgens, successfully appealed against his convictions for two counts of common assault. The respondent, Andrew Ross Williams, was the police officer who laid the charges. The case was heard in the District Court of Queensland. The appellant's appeal was successful on technical grounds, specifically the magistrate's failure to apply the criminal standard of proof in respect of the exclusion of the defence of provocation. The nature of the offences was such that there was neither conviction nor penalty, and the magistrate expressed surprise that the matters had come to court.

The central legal issue was whether the court should award costs of the summary trial to the appellant, given that he was successful in his appeal. The court considered the provisions of the Justices Act 1886 and the Justices Regulation 2004, particularly sections 158, 158A(2)(a), (d), and (f), and 232(4). The appellant's counsel argued for an order for costs under section 158 of the Justices Act 1886, while the respondent contended that the circumstances did not warrant such an order. The court had to balance the principles set out in Latoudis v Casey with the legislative intent to protect the pecuniary interests of the police force and taxpayers.

The court found that despite the appellant's successful appeal, it was proper to award costs of the trial to him. It acknowledged that the proceedings were protracted and that the parties had to bear the burden of wasted court appointments. The court also considered the circumstances of the case, including the nature of the offences and the reasons behind the prosecution. It determined that an order for costs should be made, but that the parties should share the burden of the wasted court days. The court awarded $4,250 to the appellant for the costs of the trial, allowing specific amounts for each court day. The appeal was allowed, and the convictions were quashed without remitting the matter to the Magistrates Court. The making of the costs order was deferred to allow the appellant to investigate whether any practice existed of allowing counsel fees as outlays on top of scale costs.

Orders