Makela v Bass
[2009] TASSC 120
•22 December 2009
[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 12th September 2008 and 13th 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 of the Costs in Criminal Cases Act 1976 ("the Act"), s4. However the learned magistrate, when dealing with the costs applications, was not referred either to that legislation or to any authority to support the applications. When the application for costs was made, counsel for the applicants tendered a copy of a letter he had written to the police prosecution service on 12 September 2008, with which he forwarded statements by Makela and Brook, which he described as exculpatory. He also tendered to the learned magistrate a copy of a letter he had written to the police prosecution service on 13 October 2008, with which he forwarded a statement by a Bill Hamilton, which he said supported Makela and Brook. At the request of the learned magistrate, counsel also handed up a copy of the complainant's statement to police. The learned magistrate, I assume, read the documents he was handed. He allowed for no other submissions from counsel for the applicants and none at all from the prosecutor. He then gave reasons as follows:
"No, I'm not going to award costs against – basically I think the police had enough to go ahead but perhaps it was unwise to go ahead in view of the statements, which I can't say that the case was doomed from the start, and I think there's been some subtle changes in the complainant's case that doom the case. But I think on the statement that the police had that there was sufficient, if the complainant was to be believed, to establish a case, albeit weak in view of the other statements."
The Act, s4
The Act, s4, provides
"4 Costs of successful defendant
(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where –
(a) he is acquitted of the offence;
(b) the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence –
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.
(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:
(a) Whether the proceedings were brought and continued in good faith;
(b) Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c) Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d) Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e) Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof."
There is no issue in this matter that each of the applicants was charged with an offence and that the complaints charging them with the offences were dismissed.
The law
The Act, s4, has been considered by this Court on a number of occasions. The matter of R v Freshney [1977] Tas SR 126 remains the leading authority. At 128 Cosgrove J said:
"The following conclusions can, I think, be drawn from this section:
1 The discretion to order costs is an unfettered discretion. Subsections 3 and 4 appear to anticipate a temptation to fetter the discretion and are designed to prevent in advance, as it were, any such limitations being imposed.
2 The considerations enumerated in pars (a) to (e) of subs (2) are of the same nature. They state considerations which ought to be considered. But in case one or more of them might be thought to be conclusive, the subsection emphasises that they are not.
3 Unless an issue is raised under par (e), a tribunal hearing an application should refrain, so far as possible, from expressing or hinting at any view as to the guilt or innocence of the applicant.
4 The section is a grant of power. That power must, I think, be construed in the context of the enactment, that is to say, against the background that, until it became law, the Court had no power to order costs of trials.
5 The power granted is power to award 'such costs as it thinks just and reasonable' ie, only to award costs where it is just and reasonable that the Crown should pay an accused person's costs; and then only such amount (see s4(1) and s6) as is just and reasonable. The statue does not in terms refute or abrogate the long-standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is almost spelt out in the section).
It seems to me to follow that the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion (cf the authorities dealing with the discretion to extend time).
6 Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs."
The facts
The hearing in respect of the applicants was brief. The complainant gave evidence and was cross-examined. He told the court he went to Bill Hamilton's house one afternoon. Present were the local building inspector and both the applicants. The complainant had a beer and the others there were drinking too. He stayed about an hour and went back to his workshop nearby. At about 7pm that night, he went to the local hotel. The applicant Makela was there and was a bit agitated. At about 8pm, the complainant left the hotel and went back to his workshop. At about 10 or 10.30pm, there was a loud banging on the door and someone yelling. He realised it was Makela, and so went to the door to let him in. The door was a wooden door with two glass panes. The complainant described Makela as being agitated, angry and very angry. He said Makela was speaking loudly and aggressively. Makela said he had issues to do with his driver's licence to sort out. The complainant believed Makela thought he had reported him for driving without a licence. None of this evidence was challenged.
The complainant believed there was going to be a fight and suggested they go outside. He asked Makela to leave. The men went outside and indeed a fight ensued. The complainant believed he actually threw the first punch after there had been pushing and shoving. After a scuffle, the complainant turned to walk away. He then said that Makela jumped on his back and pushed him face first through a glass window. The complainant landed on the cement floor but then got up and went back outside. He said Makela came at him again, got him in a bear hug and pushed him to the ground. Makela then sat on him with his knees on his arms and began punching him to the face. There were four or five punches. The complainant managed to roll Makela over and sat on him, pinning his arms. At that point, he looked up and saw Brook standing there yelling and screaming. He said he did not punch Makela while he was on top of him.
Hamilton was also present by this time. The complainant described Hamilton as just standing there grinning. Brook then began hitting him on the back of the head with something, and yelling at him to get off. She hit him on the head and legs 12 to 14 times. He said to Makela, "have you had enough". Makela said "yes". He and Makela got up and then Makela, Brook and Hamilton left.
It was evident from cross-examination that the complainant had made some exaggerated statements to people about injuries he suffered this night. However apart from that, the complainant was not moved in his version of events, despite it being put to him that events had unfolded quite differently to the way in which he said.
The doctor who examined the complainant gave evidence. Little of use emerged save confirmation the complainant had exaggerated his injuries. Two police officers gave evidence. Both observed injuries on the complainant. Neither observed any on Makela when he was briefly spoken to at a later date, and there was no evidence he sought any medical help. The applicants declined to be interviewed. Hamilton was spoken to on the night but he declined to make any statement. However, he said he had seen Brook hit the complainant to the lower leg with an exercise bar and produced the bar to the officer. Neither police officer was challenged as to his observations of the parties. Neither was questioned about whether or not any further enquiries were made into the allegations after the first attempt to take statements.
After this evidence, the prosecutor indicated that was the close of the prosecution case. The following exchange immediately occurred between the learned magistrate and counsel for the applicants:
"As I said, Mr Bartlett, it's up to you, I don't see any evidence against John Mikela – you might have a case to answer in relation to Susan Brook, I'll listen to you on that, but as far as John Mikela is concerned I'm –
My submission is –
– dismiss the – sorry not dismiss on the basis of no case to answer but simply find that you haven't been proved beyond all reasonable doubt on the complainant's own evidence."
The learned magistrate went on to give some reasons. These appear to be based on the fact that the complainant described the whole of the sequence of events as a "continuous fight". His Honour made limited specific findings about the evidence, but appears to have taken the view that because of the complainant's acceptance that this was a continuous fight, he did not need to consider the question of whether Makela may have at some stage had an opportunity to walk away, or the issue of the level of force used by Makela in what I might describe as the second part of the fight.
The defence case in respect of Susan Brook then proceeded with her being called to give evidence. In the course of that evidence, she maintained that the complainant was on top of and attacking her partner Makela (this was something the complainant had denied) and that all she had been doing was trying to get him to leave her partner alone. She gave no evidence to suggest the complainant had either punched or attempted to punch her. When Brook completed her evidence, counsel for the applicants announced that he proposed to call Makela to give evidence. The learned magistrate intervened and said that it was not necessary to do so. The learned magistrate then dismissed the case against Brook on the basis that, on a combination of the complainant's own evidence and hers, a "defence of defence of another" had been established. In determining the matter in this way, the learned magistrate made no findings about whether the complainant actually hit Makela when he was sitting on him on the ground, whether Brook had seen that, if it did occur, or about the nature of the force used by Brook. That described by the complainant and that described by Brook was somewhat different.
Submissions
There was no suggestion by counsel for the applicants that the police did not bring, and continue, the proceedings against the applicants in good faith. Counsel's submissions were largely based on the proposition that the police had, well before the hearing, three statements which gave a contrary version of events to that of the complainant and, in the case of Brook, clearly raised the issue of defence of another. He submitted it was obvious that the police had in those circumstances not investigated further and done a critical analysis of the chances of success of the case. Counsel for the applicants submitted that the learned magistrate in those circumstances failed to have regard to:
- the lack of critical analysis by police of the evidence in the case against the applicants,
- that the applicants had disclosed the statement made by Hamilton,
- the disclosure of the applicants' case generally to police at an early stage,
-the content of the applicants' solicitor's letters to police in which they had been put on notice as to costs, and
- that the applicants had been acquitted after establishing that they were not guilty.
He submitted that, had the learned magistrate had regard to all of these factors, there would have been a positive reason as to why the applicants should have had their costs. All the learned magistrate appears to have had regard to was that the content of the complainant's statement justified the police proceeding.
Conclusion
The reasons of the learned magistrate were brief. Accepting them at face value, and noting the speed with which they were given, it could be inferred that the exercise of his Honour's discretion to refuse costs was guided by the factors he explicitly identified, and that his Honour may not have considered all the factors identified in the Act, s4, either at all or sufficiently.
However, regard needs to be had to the grounds of review. Ground 2 asserted that the learned magistrate erred in the exercise of his discretion by failing to take into account properly, sufficiently, or at all, certain factors. The first factor (ground 2(a)) was the failure by police to investigate the merits of the matter after they received the various statements and letters from the solicitors for the applicants. With respect, there was no evidence before the learned magistrate of any such failure. The submissions in relation to this were predicated on the basis that the police had not discontinued the proceedings after receiving the material, and therefore they had failed to properly investigate the merits of the case. If anything, there was evidence before the learned magistrate which might have supported the contention that prosecution services had considered the material provided, but decided that the matter had to be determined in court. For example, the learned magistrate had evidence to the effect that Hamilton was a friend of the applicants, that he had declined to make a statement to police, and that the statement he did make was made for the applicants' legal representatives several months after the event and not for the police.
Ground 2(a) cannot succeed. As to ground 2(b), it raises nothing beyond what was raised in ground 2(a) and, for the same reasons, cannot succeed.
The next factor which it is asserted the learned magistrate failed to take into account was that the evidence as a whole could not support a finding of guilt (ground 2(c)). As a matter of fact, given that the complaints against the applicants were dismissed, the evidence did not support findings of guilt. However, the Act, s4(3), specifically provides that a defendant shall not be granted costs simply because a complaint against him is dismissed. This ground appears to have been drawn from the wording of the Act, s4(2)(d). However, the translation of it from that subsection has resulted in a ground which is misconceived. The ground cannot succeed.
The next factor (ground 2(d)) has clearly been identified by reference to the Act, s4(2)(e). As to this ground, insofar as it related to Makela, the learned magistrate did not find, nor was there any application that he do so, that there was no case to answer. He did use the phrase more than once (see 44 of transcript) but on each occasion he corrected himself. His finding was that he was not satisfied beyond reasonable doubt on the evidence. The balance of this ground was an assertion that the learned magistrate failed to consider that the applicants were discharged because they unequivocally established they were not guilty. It is accepted that the learned magistrate, after hearing very little evidence, somewhat peremptorily disposed of both cases in favour of the applicants. In the case of both applicants, the findings by the learned magistrate, that the prosecution had not satisfied him beyond reasonable doubt as to the charges, arose in part because of matters arising in the complainant's evidence under cross-examination. While perhaps it might be arguable as to whether the applicants unequivocally established they were not guilty, there can be little doubt the finding of not guilty was established as a result of evidence led by them in cross-examination and in-chief.
It is impossible to tell from his Honour's reasons whether he specifically considered this matter or not. He clearly did not refer to it and it was not specifically raised with him as a matter which required consideration. As I said earlier, no-one even mentioned the Act, s4, when the applications for costs were being dealt with. However, I accept that does not absolve the learned magistrate from the obligation to consider matters that he was required by law to consider if they were relevant. There can be little doubt in this matter that this factor, if it could be established, was relevant.
I must conclude, in the absence of any indication the learned magistrate did consider this, that he did not, and this ground should therefore succeed.
Ground 2(e) appears to be an assertion that the learned magistrate erred because, having said the prosecution case was weak, he then failed to order that the applicants have their costs. I propose to consider the ground in the context of grounds 1 and 3, which effectively challenge the exercise of the learned magistrate's discretion generally. The grounds require a consideration of the factors raised by counsel for the applicants. The positive reasons relied upon by the applicants to trigger the exercise of the discretion to award costs were those identified in par14. There is no dispute that the police prosecution service received copies of statements from both accused and Hamilton well before the hearing. They were received in September and October 2008, some six months after the incident they related to and many months before the ultimate hearing. There is also no doubt that the applicants' solicitors put the prosecution service on notice of the defences which would be argued, and that costs would be sought if the applicants successfully defended the charges against them. The learned magistrate had all this material before he determined the issue of costs, and, it must be assumed, read it.
Counsel for the applicants submitted that the prosecution service should have looked carefully at the statements in the context of that which they had from the complainant. Had they done so, it would have been obvious that the three statements supplied by the applicants corroborated each other and that there were significant differences between the version of events disclosed by those statements and that given by the complainant. In effect, the service should have been alert to the prospect that the cases against the applicants might very well not succeed and discontinued before the costs of a hearing on King Island were incurred. There was no evidence as to just what, if any, consideration was given to this material prior to the hearing.
What the prosecution service were faced with was a situation where:
- they had the complainant's statement,
- they had, on the basis of that, clear evidence of an assault,
-they had corroborative evidence from two police officers and a doctor that the complainant had suffered injuries as a result of whatever happened that night,
-having attempted to speak to both applicants and Mr Hamilton about the matter, and having all of those persons decline to make statements, they received statements from all three, six months after the event, and all through the solicitors for the applicants,
-the statements they received generally presented a different picture to that described by the complainant, and generally were corroborative of each other.
The prosecution service was clearly entitled to take the view that the claims of the parties should be tested in court. However, on the other hand, realistically, had the service evaluated what was presented to them, absent any evidence of collusion between the applicants and Hamilton, the only conclusion which could have been reached was that the cases against the applicants were unlikely to be able to be proven beyond reasonable doubt. The fact that the prosecution service proceeded, notwithstanding that situation, should have, in my view, been a positive reason to trigger the exercise of the learned magistrate's discretion in favour of the applicants. The learned magistrate's reasons disclose that the only matter he appeared to consider was that, on the basis of the complainant's statement, the police had a case, albeit weak. There is nothing to indicate he was alert to either the considerations in the Act, s4, or the authorities such as Freshney.
Generally, there can in my view be little doubt that the exercise of the learned magistrate's discretion miscarried in that he failed to consider the matters he was obliged to consider pursuant to the Act, s4, and failed to have regard to the law to be applied to applications such as that with which he was dealing. This review should therefore succeed.
At the hearing of this review, submissions were sought as to the disposition of this matter in the event this review should succeed. Counsel for the State submitted the matter should be remitted to the learned magistrate to determine according to law. Counsel for the applicants urged that I dispose of the matter.
Having regard to the findings that I have made, the information with which I have been supplied, and the further time and costs which would be involved were the matter remitted to the learned magistrate, it is appropriate in my view for this Court to finalise the matter. The orders of the Court will be that the review is allowed. Further, there is an order that the respondent pay the applicants' costs of and incidental to the hearing of the charges of assault against them in the Magistrates Court sitting at Currie on 15 July 2009. I will hear counsel as to the costs of the review.
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