Magee v Delaney

[2012] VSC 419

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 01137

Kyle Magee	Appellant
v
Christopher Delaney	Respondent

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JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 August, 11 September 2012
DATE OF JUDGMENT:	13 September 2012
CASE MAY BE CITED AS:	Magee v Delaney
MEDIUM NEUTRAL CITATION:	[2012] VSC 419
JUDGMENT APPEALED FROM:	Delaney v Magee (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 14 February 2011)

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COSTS – Appeal from an order of the Magistrates’ Court under s 272(1) of the Criminal Procedure Act 2009 – Attorney-General intervened under s 34 of the Charter of Human Rights and Responsibilities Act 2006 – Appeal unsuccessful – Appellant ordered to pay respondent’s costs and some of the costs of the Attorney-General under s 408 of the Criminal Procedure Act 2009.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S Holt with J A Anderson	Victoria Legal Aid
For the Respondent	A Castle	Office of Public Prosecutions
For the Attorney-General (Intervener)	J Davidson	Victorian Government Solicitor

HIS HONOUR:

1. On 11 September 2012, I made an order dismissing Mr Magee’s appeal under s 272(1) of the Criminal Procedure Act 2009 (‘CP Act’).[1]  I also made an order that Mr Magee pay the costs of the appeal of the Director of Public Prosecutions (‘DPP’) and the costs of the Attorney-General that were thrown away by reason of the abandonment of ground 3 in the notice of appeal.  I said that I would publish reasons for the costs order on a future date.  These are my reasons for the costs order.

   [1]Magee v Delaney [2012] VSC 407 (11 September 2012).

1. The DPP, who defended the appeal on behalf of the respondent, has sought his costs of the appeal. Mr Adrian Castle, who appeared for the DPP, submitted that this Court regularly makes orders for costs against appellants who fail in an appeal under s 272(1) of the CP Act.

1. The Attorney-General, who intervened under s 34 of the Charter of Human Rights and Responsibilities Act 2006 (‘Victorian Charter’), sought an order for costs in respect of costs that were thrown away by him as a result of Mr Magee’s abandonment of ground 3 in the notice of appeal just prior to the hearing of the appeal. Ms Joanna Davidson, who appeared for the Attorney-General, informed me that the Attorney-General decided to intervene due to the issues raised in ground 3 and that he would not have incurred any costs if ground 3 had not been included in the notice of appeal.

1. Mr Saul Holt, who appeared for Mr Magee, conceded that, under s 408 of the CP Act, the Court has a broad discretion to make any order for costs it considers appropriate.[2]  However, he submitted that no order for costs should be made in the present case, for the following reasons:

   [2]Section 408 of the CP Act provides that ‘[t]he costs of, and incidental to, an appeal under section 272 are in the discretion of the Supreme Court and the court has full power to determine by whom and to what extent the costs are to be paid’.

(a)       The appeal was not wholly unsuccessful, in that the Court accepted Mr Magee’s contention that his act constituted the imparting of information or ideas.

(b) If Mr Magee had chosen to appeal to the County Court against his conviction under s 254 of the CP Act and that appeal had been unsuccessful, it is unlikely that he would have been exposed to an order for costs.[3] Accordingly, Mr Magee should not be exposed to an order for costs simply because he chose the alternative course of appealing to this Court on a question of law under s 272(1) of the CP Act.

[3]See s 406 of the CP Act.

(c)       The appeal to this Court was in respect of a criminal proceeding and involved testing the validity of Mr Magee’s convictions. 

(d) The appeal had the result of clarifying some provisions of the Victorian Charter and therefore its utility extended beyond the parties to the appeal.

(e)       A costs order against a legally aided appellant would limit access to the courts and would be contrary to the public interest.

1. Each of the matters upon which Mr Holt has relied are relevant to the Court’s exercise of its discretion under s 408 of the CP Act. The weight to be given to these matters in the present case, however, is strongly outweighed by the fact that the basic premises upon which the appeal was brought were fundamentally flawed. Put simply, it would have been readily apparent, had careful consideration been given to the wording of the Victorian Charter, that the appeal should not have been brought because it had no realistic prospects of success.

1. A recurring theme in the submissions made on behalf of Mr Magee at the hearing of the appeal was that his conduct did not involve either serious or permanent damage to property or any interference with public order. It was said that the magistrate should have concluded that the right to freedom of expression under s 15(2) of the Victorian Charter was engaged, that s 15(3) did not apply, and that, accordingly, Mr Magee had a ‘lawful excuse’ for the purposes of s 197(1) and 199(a)(i) of the Crimes Act 1958. However, the Court held that, whether ss 197(1) and 199(a)(i) constitute restrictions on the right to freedom of expression that were reasonably necessary to respect the rights of others or for the protection of public order, depended on the nature and scope of those provisions rather than on their impact on Mr Magee.

1. In so far as the appeal was brought to test the provisions of the Victorian Charter, the facts of the present case meant that it was a poor choice for that purpose. The submissions that were made in support of the proposition that those facts engaged the right to freedom of expression, so as to provide a lawful excuse for the purposes of s 197(1) and 199(a)(i) of the Crimes Act, were devoid of merit and lacked proper perspective. 

1. Mr Holt conceded that, upon reflection, ground 3 in the notice of appeal was untenable.  In these circumstances, the Attorney-General should recover the costs he has thrown away by reason of the abandonment of ground 3.  Had it not been for the abandonment of ground 3, I would not have made any order for costs as between Mr Magee and the Attorney-General.