Interim Advance Corporation Pty Ltd v Fazio
[2008] WASCA 140 (S)
•16 JULY 2008
INTERIM ADVANCE CORPORATION PTY LTD -v- FAZIO [2008] WASCA 140 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 140 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:67/2007 | 14 MARCH 2008 | |
| Coram: | BUSS JA MILLER JA NEWNES AJA | 16/07/08 | |
| 22/08/08 | |||
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Complaints against appellants remitted to the Magistrates Court for a retrial and determination according to law Appellants' application for costs dismissed | ||
| B | |||
| PDF Version |
| Parties: | INTERIM ADVANCE CORPORATION PTY LTD OLIVER GEORGE DOUGLAS MICHAEL LAWRENCE FAZIO |
Catchwords: | Appeal Whether re-trial should be ordered Application for costs in criminal appeal Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) s 20 Official Prosecutions (Accused's Costs) Act 1973 (WA) s 4, s 5 |
Case References: | Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : INTERIM ADVANCE CORPORATION PTY LTD -v- FAZIO [2008] WASCA 140 (S) CORAM : BUSS JA
- MILLER JA
NEWNES AJA
DECISION : 22 AUGUST 2008 FILE NO/S : CACR 67 of 2007 BETWEEN : INTERIM ADVANCE CORPORATION PTY LTD
- First Appellant
OLIVER GEORGE DOUGLAS
Second Appellant
AND
MICHAEL LAWRENCE FAZIO
Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : HASLUCK J
Citation : FAZIO -v- INTERIM ADVANCE CORPORATION PTY LTD & ANOR [2007] WASC 108
File No : SJA 1128 of 2005
Catchwords:
Appeal - Whether re-trial should be ordered - Application for costs in criminal appeal - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA) s 20
Official Prosecutions (Accused's Costs) Act 1973 (WA) s 4, s 5
Result:
Complaints against appellants remitted to the Magistrates Court for a retrial and determination according to law
Appellants' application for costs dismissed
Category: B
Representation:
Counsel:
First Appellant : Mr E M Corboy SC
Second Appellant : Mr E M Corboy SC
Respondent : Ms J C Pritchard
Solicitors:
First Appellant : Melvyn Levitan
Second Appellant : Melvyn Levitan
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140
(Page 4)
1 JUDGMENT OF THE COURT: On 16 July 2008, this court delivered judgment in the appeal. See Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140. On that date it made orders, relevantly, that:
(a) Leave to appeal on grounds 3A, 4 and 6 be allowed and leave to appeal on ground 7 be refused.
(b) The appeal be allowed.
(c) The orders of his Honour Justice Hasluck made on 11 May 2007 be set aside.
(d) The decisions of the learned magistrate made 29 November 2005 to:
(i) acquit the first and second appellants of each of the charges; and
(ii) award the first and second appellants a certificate under the Official Prosecutions (Accused's Costs) Act 1973 (WA) in the amount of $5,750.00
be set aside.
(e) The appellants are to file and serve written submissions within 7 days on paragraphs 5 to 7 of the appellants' minute of proposed orders.
(f) The respondent is to file and serve written submissions within 14 days on paragraphs 5 to 7 of the appellants' minute of proposed orders.
2 Paragraphs 5 to 7 of the appellant's minute of proposed orders read:
5. The complaints against the First and Second Appellants be remitted to the Magistrates Court for a re-trial and determination according to law.
6. The Respondent pay the First and Second Appellants' costs of the Appeal to Hasluck J and to this Court to be taxed if not agreed.
7. The costs of the Magistrates Court hearing of the 21, 22 and 29 November 2005 be reconsidered by the magistrate.
3 The appellants and the respondent have filed and served written submissions in relation to pars 5 to 7 of the appellants' minute of proposed orders. Those paragraphs of the minute, and the written submissions, raise three issues, namely:
(Page 5)
- (a) What orders should be made in relation to the remission of the complaints to the Magistrates Court?
(b) What orders, if any, should be made in relation to the costs of the appeal to Hasluck J and the appeal to this court?
(c) What orders, if any, should be made in relation to the costs of the hearing in the Magistrates Court on 21, 22 and 29 November 2005?
What orders should be made in relation to the remission of the complaints to the Magistrates Court?
4 Paragraph 5 of the appellants' minute of proposed orders proposes that the complaints against the appellants be remitted to the Magistrates Court for a re-trial and determination according to law.
5 In their written submissions, however, the appellants propose that this court should not remit the complaints to the Magistrates Court, but should, instead, substitute its own decision for that of the trial magistrate. Alternatively, the appellants submit that the complaints should be remitted to the trial magistrate for the purpose of making findings on the alleged defence under s 22 of the Criminal Code, his Honour having made no findings on that issue at the trial.
6 The appellants' primary submission that this court should substitute its own decision for that of the trial magistrate is inconsistent with this court's reasons for judgment in the appeal. In those reasons, Buss JA decided (and Miller JA and Newnes AJA agreed) that it was not open for Hasluck J (and it is not open for this court) to make a finding as to whether Mr Douglas's (that is, the second appellant's) alleged belief was honestly held or not [94]. The appellants' primary submission should be rejected.
7 We are also of the opinion that the appellants' alternative submission that the complaints be remitted to the trial magistrate for the purpose of making findings on the alleged defence under s 22 of the Criminal Code should be rejected. The requisite finding which must be made, namely, whether the alleged defence under s 22 has been negatived beyond reasonable doubt, will turn on whether Mr Douglas's alleged belief, considered in context, was honestly held or not. It is inevitable that a determination will be necessary in relation to his credibility. The hearing before the trial magistrate occurred on 21, 22 and 29 November 2005; that is, nearly three years ago. It is entirely unrealistic to expect that the trial magistrate would have an adequate recollection of the trial including, in
(Page 6)
- particular, his assessment of the witnesses who gave evidence, to enable him properly to make the necessary finding, including a determination as to Mr Douglas's credit.
8 In our opinion, the complaints should be remitted to the Magistrates Court for a re-trial and determination according to law.
What orders, if any, should be made in relation to the costs of the appeal to Hasluck J and the costs of the appeal to this court?
9 The appeal from the trial magistrate to Hasluck J, and the appeal from Hasluck J to this court, were brought pursuant to Pt 2 of the Criminal Appeals Act 2004 (WA).
10 The appellant in the appeal to Hasluck J, and the respondent in the appeal to this court, is a police officer, and he was a party to each proceeding in his official capacity as a police officer.
11 Section 20(2) and (3) of the Criminal Appeals Act provides:
(2) If a JP or a police officer, acting in an official capacity, is a party to proceedings under this Part, the Supreme Court must not order that the JP or officer is to pay any costs.
(3) Despite subsection (2), if a police officer is an appellant in an appeal under this Part and the decision appealed against -
(a) is confirmed; or
(b) if not confirmed, has in the opinion of the Supreme Court involved a point of law of exceptional public importance,
the Supreme Court may order that a respondent be paid costs, and in such a case -
(c) the Supreme Court must give that respondent a certificate sealed with the seal of the Supreme Court showing the amount of the costs; and
(d) the person may recover that amount in a court of competent jurisdiction as a debt due by the State.
(Page 7)
- public importance'. They involved, relevantly, the proper construction and application of various provisions of the Debt Collectors Licensing Act 1964 (WA) and the proper application of accepted legal principles established in relation to s 22 of the Criminal Code. Although the proper construction of some of the provisions of the Debt Collectors Licensing Act were of public importance, they could not reasonably be described as being of 'exceptional' public importance. No order should be made under s 20(3) of the Criminal Appeals Act.
13 By s 5 of the Official Prosecutions (Accused's Costs) Act 1973 (WA), despite s 20(2) of the Criminal Appeals Act, an 'accused' is entitled to costs if the accused is 'successful'. Where an 'accused' is 'successful' by reason of a decision of an appeal court, the appeal court must make an order as to the amount of the accused's costs in the appeal court.
14 Each of the appellants is an 'accused', as defined in s 4(1) of the Official Prosecutions (Accused's Costs) Act.
15 Section 4(2) defines the circumstances in which an accused is 'successful'. It provides, relevantly:
An accused -
(a) subject to paragraph (c), is successful if -
(i) he is acquitted of the charge, other than on account of unsoundness of mind;
(ii) he is discharged from the charge under section 128(2) or (3) of the Criminal Procedure Act 2004;
(iii) the charge is dismissed for want of prosecution; or
(iv) his conviction of the charge is set aside;
(b) is partly successful if -
(i) he is convicted of a lesser offence than that with which he was charged; or
(ii) he is charged with several offences in the one prosecution notice and is successful in respect of one or some of them;
…
(Page 8)
- any of the charges being dismissed for want of prosecution, or in any of the convictions for any of the charges being set aside. In the circumstances, therefore, neither of the appellants has been 'successful', as defined in s 4(2) of the Official Prosecutions (Accused's Costs) Act. Accordingly, neither of them is entitled to an order for costs under that Act, either in relation to the appeal to Hasluck J or the appeal to this court.
17 No other power exists for this court to order the respondent to pay the appellants' costs of either appeal or to make any other order for costs in favour of the appellants.
What orders, if any, should be made in relation to the costs of the hearing in the Magistrates Court on 21, 22 and 29 November 2005?
18 The appellants submitted that if the complaints are remitted to the Magistrates Court for a re-trial and determination according to law, then the costs of the Magistrates Court hearing on 21, 22 and 29 November 2005 should be reconsidered by the magistrate.
19 As a result of our decision that the complaints should be remitted to the Magistrates Court for a re-trial and determination according to law, the hearing on 21, 22 and 29 November 2005 remains a hearing in respect of which neither of the appellants was 'successful', as defined in s 4(2) of the Official Prosecutions (Accused's Costs) Act, and there is therefore no power, at this stage, to award costs under that Act.
20 At the conclusion of the re-trial in the Magistrates Court, the question of the costs of the original trial and the costs of the re-trial may be considered by that court, under the Official Prosecutions (Accused's Costs) Act, in the context of the determination on the merits made by the magistrate who hears the re-trial.
21 It is unnecessary to make an order to the effect of the order sought in par 7 of the appellants' minute of proposed orders.
Result
22 We would order that the complaints against the appellants be remitted to the Magistrates Court for a re-trial and determination according to law, being the order proposed in par 5 of the appellants' minute of proposed orders. We would not make either of the other orders sought.
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