McKelliff v Police

[2002] SASC 269

McKELLIFF v POLICE
[2002] SASC 269

Magistrates Appeal: Criminal

1. PERRY J.  (ex tempore)     This is an appeal against an order as to costs alone, more particularly as to the quantum of costs awarded in favour of the appellant, who was the defendant to a complaint heard in the Magistrates Court sitting at Christies Beach. The order in question was made upon the withdrawal of the complaint.

2. The appellant was charged on complaint that on 4 November 2000 at Old Noarlunga and other places he rode a motor cycle at speed dangerous to the public, rode at excess speed and failed to stop when requested by the police.

3. The matter in the court below has a somewhat chequered history in that the defendant finally appeared in court on 1 August 2001, after failing to appear on the five previous occasions upon which the matter had been called on for hearing.

4. It appears that there were two further adjournments while the appellant sought legal advice, and two trial dates were vacated while negotiations between the complainant and counsel for the appellant took place.

5. The appellant pleaded not guilty to all five counts, and when it eventually came on for trial on 24 June 2002 the trial ran for just over half a day before the complainant withdrew the complaint, following further discussions with counsel for the appellant.

6. The formal order which was then made by the Magistrate was in these terms:

   “Evidence taken ... matter held for instructions. Complaint withdrawn. Defence application for costs. Costs allowed in the total amount of $1200 payable to Douglas Wardle Trust Account.”

7. In his notice of appeal the appellant pleads one ground only, namely “That the award of costs was manifestly inadequate and failed regard to the principles laid down in Haslam v Emu Air”.

8. On the hearing of the appeal, by consent, I received an affidavit of Douglas Wardle, who was counsel for the appellant in the court below, as to the course of the proceedings in that court, with particular reference to the application for costs.

9. It appears from that affidavit that the learned special magistrate was informed that Mr Wardle’s total charges, he being both counsel and solicitor to the appellant, would be $5252.21.

10. The prosecutor opposed the making of an order for costs.

11. In the result, the learned magistrate awarded $400 for preparation and $800 for attendances at the trial, a total of $1200 costs.

12. In his outline of argument, the appellant contends that the order for costs was “paltry and demonstrably inadequate”.

13. Before the appeal came on for hearing, I caused advice to be given to the parties to the appeal that I would be assisted by argument as to whether or not the appeal was competent. I have now received argument on that aspect of the matter, but not on the merits of the appeal. I did not hear the parties as to the merits in view of the fact that I have reached a concluded view as to…