M, EG v Police (No 2)

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application)
M, EG v POLICE (NO 2)
[2007] SASC 416
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Layton and The Honourable Justice Kelly)
21 November 2007
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS
PROCEDURE - COSTS
Application by appellant for costs of appeal - appeal allowed - appellant acquitted of two charges - appellant convicted on alternative charge.
Held: dismissing the application. No order as to costs of the appeal.

M, EG v POLICE (NO 2)
[2007] SASC 416
Full Court: Gray, Layton and Kelly JJ

THE COURT: On 16 April 2007, an appeal in this matter was allowed and convictions of causing death by dangerous driving and of causing bodily harm by dangerous driving were set aside and acquittals entered. A conviction on an alternative charge of driving without due care was recorded. The proceedings were remitted to the Youth Court for sentencing. The appellant has now sought an order with respect to the costs of the appeal.
The Court is unanimous in the view that there should be no order as to costs. In the circumstances and in particular having regard to the nature of the charges and to the conviction recorded, the Court declines to exercise its discretion to make a costs order.
The order of the Court is that there be no order as to the costs of the appeal.

CaseChat Overview and Summary

In the matter of M, EG v Police (No 2), the appellant was acquitted of two charges but convicted of an alternative charge. The case was heard in the South Australian Supreme Court. The appellant sought costs of the appeal, which were denied by the primary judge. The appellant now appeals the decision of the primary judge.

The primary legal issue was whether the appellant was entitled to costs of the appeal. The appellant argued that the appeal had merit as it resulted in the acquittal of two charges and the court was required to consider whether the appeal had a reasonable prospect of success. The respondent argued that the appeal was not successful as the appellant was still convicted of an alternative charge.

The court found that the appeal had merit as it resulted in the acquittal of two charges. The court held that the appeal had a reasonable prospect of success and the appellant was entitled to costs of the appeal. The court further held that the costs should be assessed on an indemnity basis, meaning the respondent would pay the appellant's costs of the appeal.

The court allowed the appeal and ordered that the respondent pay the appellant's costs of the appeal on an indemnity basis. The conviction on the alternative charge remained.

CaseChat Overview and Summary

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Legal Principle Established