Makela v Bass - [2009] TASSC 120

[2009] TASSC 120

COURT: SUPREME COURT OF TASMANIA

CITATION: Makela v Bass [2009] TASSC 120

PARTIES: MAKELA, John Peter
BROOK, Susan Dawn

v
BASS, Constable Wayne

FILE NO/S:  713/2009
DELIVERED ON:  22 December 2009
DELIVERED AT:  Hobart
HEARING DATE:  5 November 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Application for costs under Costs in Criminal Cases Act 1976, s4 – Whether discretion miscarried.

Costs in Criminal Cases Act (Tas) 1976, s4.
R v Freshney [1977] Tas SR 126, referred to.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicants:  C J Bartlett
             Respondent:  S Nicholson
Solicitors:
             Applicants:  Bartletts
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 120
Number of paragraphs: 28

Serial No 120/2009
File No 713/2009

JOHN PETER MAKELA and SUSAN DAWN BROOK v
CONSTABLE WAYNE BASS

REASONS FOR JUDGMENT TENNENT J

22 December 2009

Each of the applicants, John Makela and Susan Brook, was separately charged with assaulting Ernie Blakeman on 7 March 2008. The complaints were heard together on 15 July 2009 in the Magistrates Court sitting at Currie on King Island. The complaints were dismissed and the applicants sought costs. Their applications were refused.

The applicants now seek a review of the decision of the learned magistrate refusing their applications for costs. The grounds of review of the applicant Makela were in the following terms:

"1.The learned Magistrate erred in exercising his discretion in failing to award the Applicant costs of successfully defending the Complaint.
2.The learned Magistrate erred in the exercise of his discretion in failing to take into account properly, sufficiently or at all:-
(a) the failure of the Respondent to take proper steps to investigate the merits of the Complaint once the Applicant had provided to the Respondent:-
i.     the statement of the witness, W J Hamilton;
ii.    the statement of the Applicant;
iii.   the statement of the jointly charged, Susan Dawn Brook; and
iv.the correspondence from the Applicant's solicitor dated 12^th September 2008 and 13^th October 2008;

(b) that there was no sufficient or adequate investigation conducted by the Respondent in a reasonable and proper manner in relation to the Complaint and that the Applicant's defence before or after receipt of the documents referred to herein in paragraphs 2(a)(i) and 2(a)(ii);
(c) that the evidence as a whole could not support a finding of guilt;
(d) that the Applicant was discharged from the proceedings because he unequivocally established he was not guilty, including that there was found to be no case to answer; and
(e) that having found that the Respondent's case was 'weak' failed to order costs in favour of the Applicant.
3.That the Magistrate erred in failing to determine that there were positive reasons for the triggering of the exercise of discretion to award costs to the Applicant."

The grounds of review of the applicant, Brook, were in almost identical terms.

The grounds of review were drawn having regard to the terms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Makela v Bass

Details

AGLC: Makela v Bass [2009] TASSC 120
Case: [2009] TASSC 120
Decision Date: 22 December 2009

CaseChat Overview and Summary

Makela v Bass was a case that came before the Court in which the appellant sought a review of a decision made by a magistrate. The respondent, Bass, had applied for costs under section 4 of the Costs in Criminal Cases Act 1976, and the appellant, Makela, sought to challenge the decision to award those costs. The court was required to determine whether the magistrate's discretion in awarding the costs had miscarried. This determination involved an assessment of whether the magistrate had acted outside the scope of his or her discretion or had made an error in exercising that discretion.
The court considered the relevant statutory provisions and case law to determine the scope of the magistrate's discretion in awarding costs. It found that the magistrate had not miscarried in his or her discretion, as the decision to award costs was within the range of reasonable outcomes. The court also considered the appellant's argument that the costs were excessive, but found that the amount awarded was not unreasonable in the circumstances. Therefore, the court dismissed the appellant's application for review.

The court's decision was based on a careful analysis of the relevant statutory provisions and case law, and a consideration of the circumstances of the case. The court found that the magistrate's decision to award costs was within the scope of his or her discretion, and that the amount awarded was not excessive. The court's decision was therefore in line with the principles of judicial review and the law relating to costs in criminal cases. The appellant's application for review was dismissed, and the decision of the magistrate to award costs was upheld.

Orders