M, L v Police

[2015] SASCFC 126

Supreme Court of South Australia

(Full Court: Permission to Appeal in Private)

M, L v POLICE

[2015] SASCFC 126

Judgment of The Full Court

(The Honourable Acting Chief Justice Gray, The Honourable Justice Sulan and The Honourable Justice Stanley)

7 September 2015

PROCEDURE - COSTS - APPEALS AS TO COSTS - DISCRETION

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

Application for permission to appeal to the Full Court against the order of a Judge of the Youth Court.  Following a trial before the Judge of the Youth Court, the applicant was convicted of one count of unlawful sexual intercourse with a person under the age of 12 years and acquitted of nine other counts of sexual offending.  The Judge dismissed the applicant’s oral application for costs on the basis that the prosecution was the successful party. 

Whether the Judge gave adequate reasons for his decision.

Held per the Court:

1.      The Judge’s remarks in dismissing the application for costs disclose his essential reasons. 

2.      The order was well within the Judge’s broad discretion as to costs.

3.      Application for permission to appeal dismissed.

Summary Procedure Act 1921 (SA) s 189, referred to.
Latoudis v Casey (1990) 170 CLR 534, considered.

M, L v POLICE
[2015] SASCFC 126

Full Court:       Gray ACJ, Sulan and Stanley JJ

THE COURT.

1. This is an application for permission to appeal.  The proposed appeal relates only to a question of costs.

2. The defendant and applicant, LM, was charged with ten counts of sexual offending, three of those counts being laid in the alternative.  Each count involved the one complainant, a younger female cousin of the defendant.  The ten counts related to seven separate alleged incidents occurring between the years 2000 and 2004.  At that time, the defendant was aged between 11 and 15 years, and the complainant was aged between 7 and 11 years.  At the time of trial, the defendant was aged 26 years. 

3. Following a trial before a Judge of the Youth Court, the defendant was convicted of one count of unlawful sexual intercourse with a person under the age of 12 years.  The Judge found that the offence occurred at a time when the complainant was aged between 7 and 8 years and the defendant was aged between 11 and 12 years and in primary school.  The Judge found that the conduct occurred in the secrecy of a sewing room in the house of the complainant’s grandmother.  The defendant followed the complainant into the room and closed the door.  The defendant told the complainant to be quiet or else she would be in trouble.  The Judge found that the defendant was the initiator and controller of the incident from the time of its commencement until it was interrupted by another person entering the room.  The Judge found that the unlawful sexual intercourse consisted of an act of cunnilingus. 

4. In making the above findings beyond reasonable doubt, the Judge was critical of the defendant’s evidence, concluding that:

   ... His evidence at times amounted to him arguing his case, rather than simply doing his best to truthfully recount events.  Many of his answers appeared to me to involve carefully thought out preparation, with a view to self interest, rather than spontaneous and truthful answers to the questions put. 

5. Although the defendant admitted some sexual contact with the complainant in the sewing room, the Judge rejected his evidence as to the manner in which the act of cunnilingus occurred.  The Judge concluded that the defendant knew that it was seriously wrong to engage in an act of cunnilingus with a complainant who was then aged about 7 or 8 years. 

6. In respect of the remaining counts, the Judge entered verdicts of not guilty.  In doing so, however, the Judge was satisfied that the complainant was credible and doing her best to give a truthful account of events.  The Judge considered that there had been an ongoing course of sexual contact between the defendant and the complainant, however, he could not accept the complainant’s account of the specific incidents the subject of the remaining counts. 

7. When sentencing, the trial Judge treated the offence of unlawful sexual intercourse with a person under the age of 12 as a serious offence, particularly in circumstances where the complainant was only 7 or 8 years of age.  The Judge was correct in making this observation.  The Judge considered that the serious nature of the offending suggested that it would be inappropriate to divert the matter to a family conference.  Ultimately, he determined to do so as he considered that, in all of the circumstances, a restorative justice conference was the most appropriate sentencing option. 

8. The Judge dismissed the defendant’s oral application for costs.  When making his ruling, the Judge noted the wide discretion granted by section 189 of the Summary Procedure Act 1921 (SA), which provides:

   Costs generally

   Subject to sections 189A to 189D (inclusive), the Court may award such costs for or against a party to proceedings as the Court thinks fit.

9. The Judge then addressed his discretion in the following terms:

   This power to award costs has been described, in numerous cases, as a broad unfettered discretion.  Of course, like any discretion, it needs to be exercised judicially.

   The exercise of that discretion is underpinned by an approach:[1]

   “... that in ordinary circumstances an order for costs should be made in favour of a successful defendant.”

   Similarly:[2]

   “... if a prosecution has failed, it will ordinarily be just and reasonable to award the defendant costs ...”

   It is to be observed that the Judge referred to the relevant principles enunciated by the High Court in the decision of Latoudis v Casey.[3] 

   [1]    Latoudis v Casey (1990) 170 CLR 534 at 544.

   [2] Ibid at 565.

   [3]    Latoudis v Casey (1990) 170 CLR 534.

10. The Judge reasoned:

    I am mindful, of course, that the defendant was acquitted of 9 of the 10 charges.  I am also mindful that an assessment of who is successful or unsuccessful, in a prosecution, is not necessarily resolved on the basis that as long as the prosecution are successful on any individual count, they are the successful party for the purposes of the principle cited above.  On the other hand, it is not necessarily the case that a defendant who is acquitted of some, or even the majority, of the charges, is the successful party for the purposes of the principle cited above.

    In this case the defendant was found guilty of a charge of unlawful sexual intercourse with a person under 12 years. Upon all the circumstances of this particular case, I consider the prosecution was the successful party for the purposes of the approach outlined in Latoudis v Casey.  I decline to award the costs in favour of the defendant.

11. The defendant contends that the Judge failed to give adequate reasons.  In particular, it is contended that the Judge’s reference to Latoudis v Casey is “puzzling” as that authority did not deal with the issue of determining the successful party to a proceeding. 

12. The Judge’s remarks in dismissing the application for costs disclose his essential reasons.  The Judge considered that the prosecution was a successful party in that the Judge had found the defendant guilty of the serious charge of unlawful sexual intercourse with a person under the age of 12.  Plainly, the prosecution was the successful party to this extent.  As discussed earlier, the Judge considered the complainant’s evidence, while not entirely reliable, to be generally credible and truthful, and considered the defendant to be a less impressive witness.  However, the Judge was unable to reach a conclusion beyond reasonable doubt as to the specific incidents which were the subject of the other charges.  In that respect, it can be understood that the prosecution was unsuccessful. 

13. In our view, the Judge’s remarks in dismissing the application for costs were adequate.  It is clear that the Judge, as a matter of discretion, considered the prosecution to have been sufficiently successful so as to make no order for costs for either party.  We consider that this is an order well within the Judge’s broad discretion as to costs.  It is to be observed that the Judge made no order for costs in favour of the prosecution.

14. We would refuse permission to appeal.  The application does not raise any question of law or important point of principle.  We do not see any reason to doubt the Judge’s exercise of discretion having regard to the overall circumstances of the proceeding.