Leone v McKenzie
[2002] WASCA 200
•29 JULY 2002
LEONE -v- McKENZIE [2002] WASCA 200
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 200 | |
| 29/07/2002 | |||
| Case No: | SJA:1040/2002 | 25 JULY 2002 | |
| Coram: | WHEELER J | 25/07/02 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BIAGIO PETER LEONE MARK JAMES McKENZIE |
Catchwords: | Turns on own facts |
Legislation: | Criminal Code, s 636A Official Prosecutions (Defendants Costs) Act, s 6(b) |
Case References: | Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998 Graham v Ferguson, unreported; SCt of WA (Walsh J); Library No 960606; 17 October 1996 Harwood v Nell, unreported; SCt of WA (Scott J); Library No 920562; 6 November 1992 Latoudis v Casey (1990) 170 CLR 534 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MARK JAMES McKENZIE
Respondent
Catchwords:
Turns on own facts
Legislation:
Criminal Code, s 636A
Official Prosecutions (Defendants Costs) Act, s 6(b)
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Ms H K Muhling
Respondent : Ms D E Quinlan
Solicitors:
Appellant : Beau Hanbury
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998
Case(s) also cited:
Graham v Ferguson, unreported; SCt of WA (Walsh J); Library No 960606; 17 October 1996
Harwood v Nell, unreported; SCt of WA (Scott J); Library No 920562; 6 November 1992
Latoudis v Casey (1990) 170 CLR 534
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1 WHEELER J: On 25 July I dismissed this appeal and indicated that I would publish reasons at a later date. These are my reasons for that decision.
2 The appellant Mr Leone had been charged with breach of a violence restraining order by driving within 100 metres of an address in Clarkson. The matter was heard before his Worship Mr Thobaven SM on 27 February this year. There was no dispute as to the existence of the restraining order.
3 The evidence as to the appellant's presence within 100 metres of the relevant address took two forms. First, there was positive evidence of a person who had seen the appellant in the vicinity of that address. That witness knew the appellant and, although he appeared to be prepared to concede the possibility of a mistaken identification, he was reasonably firm in his evidence that it was the appellant. His Worship noted that the witness was not entirely independent, being a friend of one of the parties apparently involved in the dispute which had given rise to the restraining order. There was also negative evidence in the sense of evidence from a witness who said she had been by coincidence at the appellant's premises at the relevant time and that all indications were that there was no one at the appellant's premises at that time. His Worship found that most improbable. There were other witnesses who appeared not to contribute a great deal of relevant information.
4 On the defence side, there was the appellant himself who said that he was at home, and there was a Ms Hayes, who said that he was with her at all relevant times at his home. In relation to Ms Hayes, his Worship in his reasons for acquitting the appellant observed:
"She is an important witness in the case because she does raise an alibi. Whilst on that, the case proceeded to the end and the matter of alibis was then raised; that is, the question of notice or no notice having been given. Really, it should have been raised during the course of the case so that it could have been properly addressed. The Criminal Code seems to refer to serious matters – that's in s 636A; however, it is a matter of common sense that if an alibi is raised then the alibi should be advised. However, the evidence was admitted without objection."
- That passage appeared to refer to the prosecuting sergeant's observation that he was taken by surprise by the existence of an alibi witness, but that
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- he nevertheless considered that it would be undesirable for him to seek to adjourn the trial to have the alibi investigated.
5 Having regard to all of that evidence, his Worship took the view that in the end "the scales are about equal" and that he could therefore not be satisfied beyond reasonable doubt of the appellant's guilt.
6 There was then an application for costs pursuant to the Official Prosecutions (Defendants Costs) Act. The prosecuting sergeant objected to an award of costs on the basis that if the alibi evidence had been raised with the investigating officer at the outset, the matter might well not have proceeded to court. Counsel for the appellant argued that it was not necessarily the case that the prosecution would not have proceeded if the alibi witness had been notified to the investigating officer or the prosecuting sergeant, and further advised his Worship that it came to her notice "very late in the day" that Ms Hayes would be available to give evidence. It is not clear from the latter submission whether it was Ms Hayes' presence at the appellant's home, or merely her availability on the day of the trial, which came late to counsel's attention, nor is it clear precisely how "late in the day" counsel became aware of Ms Hayes' existence and/or availability. These matters were not clarified before me.
7 His Worship took the view that the failure to raise the alibi at an earlier stage was "an aspect which has allowed for the continuation of the proceedings", and therefore declined to award costs to the appellant pursuant to s 6(b) of the Act. It is from that decision that the appellant appealed.
8 Section 6(b) relevantly provides that the court may order that a successful defendant is not entitled to his costs or part thereof if he has done or caused to be done or has omitted or caused to be omitted something which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings. The first point which is made by the appellant is that his Worship did not specifically find that the conduct in failing to give any notice of the alibi witness was unreasonable in the circumstances. However, it is reasonably clear from his Worship's reasons that he did take that view. Both his observations in respect of Ms Hayes in explaining his reasons for acquitting the appellant, and his reference to the relevant section of the Act, lead to the inference that his Worship took the view that that conduct was unreasonable. His Worship also took the view that it was conduct which had contributed to the continuation of the proceedings.
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9 Before me, the appellant effectively renewed the argument which had been made to his Worship that there was nothing to indicate that the failure to give such notice had contributed to the continuation of the proceedings. The first observation I would make about that submission is that his Worship had of course had the benefit of not only observing the entirety of the trial, but also of observing and considering the reaction of the prosecuting sergeant to the production of the alibi witness. Having regard to that advantage, and having regard to the obvious importance of such a witness in a case where the prosecution case otherwise was not particularly strong, it is my view that it was open to his Worship to form the view that the failure to give notice of the alibi witness was something which, on balance, could be said to have contributed to the continuation of the proceedings.
10 It is in my view significant that s 6(b) is concerned with the notion of "contribution" to the continuation of the proceedings, rather than that of causing the continuation; that is, the conduct need not be the sole reason for the proceedings continuing, but merely one of the factors which contributed to the continuation. Such an assessment is necessarily in most cases to a degree speculative, involving an evaluation of what was likely to have happened had certain conduct not occurred, or had certain omissions not occurred. It requires an assessment of the conduct in the circumstances of the case overall, and it appears to me that his Worship's view was based on such an assessment. In the case of an alibi defence, it has long been recognised that it is capable of being a powerful and effective answer to a charge and, in relation to indictable offences, it is considered to be of such significance that it is the exception to the rule that an accused need disclose nothing of his defence prior to trial – Criminal Code s 636A. Although no universal rule can be formulated, and the question is always one for the exercise of the Magistrate's discretion having regard to the words of s 6(b) of the Act, it is hardly surprising that a failure to disclose such a defence should lead a Magistrate to decline to award costs to a successful defendant.
11 Counsel for the appellant also submitted that had the police officers carried out certain steps during the course of the investigation, they would have become aware of Ms Hayes and of the evidence which she was able to give. I do not think that this is any answer to the finding made by his Worship. The relevant officers apparently had not carried out such an investigation, and the production of Ms Hayes plainly was a surprise to the prosecuting sergeant. In those circumstances, the failure to give any indication of her existence and of the evidence which she was able to give
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- was something which could be regarded as having made a contribution to the continuation of the proceedings.
12 I was referred by both counsel to a number of authorities. I do not think it is necessary for me to examine them in detail since they are all examples of the application of the fairly clear words of s 6(b) to particular cases. The only observation which I would make, is that it should not of course be considered that anything in these reasons indicates that a defendant will be liable to have the discretion to award costs exercised against him or her wherever he or she has failed to disclose the substance of the defence. It is only where the defence is such that the prosecution might not be instituted or might be abandoned if the defence is disclosed, to adopt the expression used by Anderson J in Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998, that the exercise of the right to silence may come at that price.
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