Hoskins v Ramsden

[2008] WASC 28 (S)

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL
CITATION	:	HOSKINS -v- RAMSDEN [2008] WASC 28 (S)

CORAM	: TEMPLEMAN J
HEARD	:  6 FEBRUARY 2008 & ON THE PAPERS (SUBMISSIONS FILED 12 MARCH 2008)
DELIVERED	:  7 MARCH 2008
SUPPLEMENTARY
DECISION	:  5 MAY 2008
FILE NO/S	:  SJA 1074 of 2007 SJA 1075 of 2007
BETWEEN	: HELEN LORRAINE HOSKINS

DENICE BETTY PEARSON

Appellants

AND

ANDREW JOHN RAMSDEN

Respondent

ON APPEAL FROM:

Jurisdiction	:	MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram	:	MAGISTRATE V C EDWARDS
File No	:	MI 9419 - 9440 of 2005, MI 9395 - 9416 of 2005

[2008] WASC 28 (S)

Catchwords:

Costs - Unsuccessful appeals against conviction and sentence - No reason to depart from rule that costs follow the event

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellants	:	Mr H Sklarz
Respondent	:	Ms J C Pritchard

Solicitors:

Appellants	:	Henry Sklarz
Respondent	:	State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nil

TEMPLEMAN J [2008] WASC 28 (S)

1. TEMPLEMAN J: On 7 March 2008, I made orders dismissing the appellants' appeals against conviction and sentence. I considered that the appropriate order in relation to costs would be that the appellants should pay the respondent's costs, to be taxed if not agreed. I made an order to that effect, but suspended its operation for a short period at the request of the appellants' counsel who wanted to consider my reasons and to make such submissions as he thought fit in support of costs orders which would be more favourable to his clients.

2              On 12 March 2008, I received a written submission from counsel in

which he seeks an order that each party bear its own costs. The order is sought under s 14(1)(h) of the Criminal Appeals Act 2004 (WA) which gives the court a wide discretion in relation to costs orders in appeals and in the proceedings giving rise to those appeals.

1. I accept that the court has a wide discretion, although, of course, that discretion must be exercised judicially.

2. In the present case, counsel for the appellants based his submission on four grounds. I deal with each in turn.

Hardship to the appellants

1. Counsel submits that the appellants have limited resources, such that an order to pay the respondent's costs, in addition to the fine of $30,000, would be oppressive.

6              Counsel raised the appellants' financial position in the appeal against

sentence. As I noted in [94] of my reasons, counsel submitted that the appellants would be 'financially crippled' by the imposition of a $30,000 fine on their household. However, when I asked counsel for the basis on which he made the assertion that the appellants would be 'financially crippled', he effectively withdrew that proposition. As I then noted, counsel was right to do so because there was no evidence to support it. As I noted further, the evidence was to the contrary. It was that the appellants had amassed 'substantial personal assets over the years' and that they were 'well capable of paying a fine'. The learned magistrate in her reasons for imposing the fines she did said that the appellants had between them won sums in excess of $250,000 at the casino and from the WA Turf Club.

1. In these circumstances, it is not open to me to find that the payment of costs of the appeal would be a hardship to the appellants.

TEMPLEMAN J	[2008] WASC 28 (S)
The appellants' age and antecedents

1. Counsel submits that the appellants are pensioners with 'a minimal criminal record'.

9              I accept that the appellants are pensioners. However, that is not, of

itself, an indication of their financial circumstances. I do not think it necessary to comment on the assertion that the appellants have a minimal criminal record. The nature and extent of their respective records is not relevant to the question of liability for costs.

Complexity of the case

10            Counsel noted that the appeal related to 13 separate charges being

brought against each of the appellants under s 428 of the Criminal Code
(WA).

11            Counsel submitted that the defence against the charges 'required

complex considerations of law and fact', such that the appellants were put
to considerable expense in their defence.

12            I accept that the appellants' counsel carried out a considerable

amount of work in analysing the evidence relating to the charges and preparing a series of summaries to facilitate the presentation of his case. However, I do not accept that factual considerations were complex. In essence, it was necessary only to consider the evidence of identification of various pieces of jewellery and other items which were the subject of the charges.

13            Nor do I accept that the appeal raised complex considerations of law.

The law relating to s 428 of the Criminal Code is clear. It was stated by the magistrate (who referred to the relevant authorities) in a way which, as I noted in [16] of my reasons, counsel for the appellants accepted as being correct.

The need for clarification of the law

14            Counsel submits that 'the appellants and the public at large were

entitled to explanation and clarification' as to the law relating to s 428 of
the Criminal Code.

1. For the reasons given above, I do not think that there was any doubt about the law, either at the trial or as a result of the magistrate's reasons.

TEMPLEMAN J [2008] WASC 28 (S)

16            In their grounds of appeal against conviction, the appellants

contended that there had been a miscarriage of justice in that 'the magistrate misdirected and misapplied the correct test of the law' under s 428(1) of the Criminal Code. I held, at [34] of my reasons, that if the magistrate had misapplied the law in relation to one of the charges, the result was to favour the appellants. However, even if the magistrate did misapply the law, it does not follow that there was a need for the law to be explained or clarified.

Conclusion

17            For the reasons set out above, I am not persuaded that there is any

basis for departing from the usual rule that costs follow the event. I therefore confirm the order made provisionally on 7 March 2008, that the appellants should pay the respondent's costs of the appeal, to be taxed if not agreed.