MILLER v Police

[2020] SASC 20

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

MILLER v POLICE

[2020] SASC 20

Judgment of The Honourable Auxiliary Justice David

13 February 2020

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS

PROCEDURE - COSTS - APPEALS AS TO COSTS

Application for permission to appeal and, if granted, an appeal against an order for costs by a Magistrate.

The applicant was charged with contravening a term of an intervention order.  At trial, the protected person under that order was called by the prosecution to give evidence. At the end of her evidence she was released from further attendance, however after the close of the prosecution case and after the Magistrate made a finding of a case to answer, the applicant applied for the witness to be recalled to which the Magistrate acceded.

The witness could not be found.  The Magistrate refused the applicant’s request to dismiss the proceedings, but ordered that his trial be stayed.

The applicant sought his costs.  The Magistrate ordered that no costs should be allowed with respect to all appearances and work done up to and inclusive of the date of trial, but costs were granted for a number of hearing attendances after that date, albeit at an amount lower than that sought by the applicant.

In this Court, the applicant seeks permission to appeal, approximately four months out of time, the Magistrate’s orders with respect to costs.  He contends that he should be awarded appropriate costs up to the time the Magistrate found there was a case to answer, and that there should not have been a reduction to the costs awarded for work done after the date of trial.

Held:

1. Permission to appeal is granted.

2. The appeal is dismissed. The Magistrate did not fall into error in exercising his discretion as to costs.

Criminal Procedure Act 1921 (SA) s 189; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 31(2), referred to.

MILLER v POLICE
[2020] SASC 20

Magistrates Appeal:  Criminal

1. DAVID AJ:            This is an application for permission to appeal out of time against an order for costs made by a Magistrate.

   Background

2. On 21 August 2017, a trial commenced on an Information charging the applicant with a contravention of a term of an intervention order contrary to s 31(2) of the Intervention Orders (Prevention of Abuse) Act 2009 (SA). On that day, the prosecution called two witnesses including the alleged victim, V. The evidence included V’s recording of an offending phone call which was the basis of the charge. A copy of that recording was tendered. After she gave her evidence, V was released and the prosecution closed its case. The Magistrate found a case to answer and the case was adjourned, being part-heard.

3. During the adjourned period, V was charged by the police with property damage to the applicant’s vehicle.  As a result, the applicant applied to recall V in order to cross-examine her further because of that behaviour.  Over an objection made at the trial, the Magistrate allowed the prosecution case to be reopened and reversed his ruling that there was a case to answer in order that V might be cross‑examined. 

4. V could not be found as she had been released from giving further evidence.  The Court issued a witness summons for her to return, but the summons was never served upon her.  She obviously thought the matter, as far as her participation was concerned, was finished. 

5. The further proposed cross-examination was unable to take place and the applicant asked for the charge to be dismissed.  On 13 February 2019, the Magistrate refused that application but granted a permanent stay of proceedings.  After that date, there were 14 subsequent hearings which terminated on 23 May 2019 when the Magistrate made an order for costs. 

6. A notice of appeal was filed on 10 October 2019 against that order for costs, being approximately four months out of time.  As a result, the applicant no longer has a right to appeal and needs to seek permission.

7. On the aspect of permission, the applicant, through his counsel, gave various reasons as to why I should grant an extension of time, including the illness of the applicant’s counsel and a delay in receiving the transcript from the lower court.  However, I need not go into those reasons because, in my view, the delay of four months did not prejudice the respondent. 

8. I therefore grant an extension of time to appeal.

   The Magistrate’s order for costs

9. The Magistrate made an order that costs should not be allowed with respect to all appearances and work done up to and inclusive of the trial on 21 August 2017.  It was on that occasion that he found a case to answer.  He did make an order granting costs for a number of attendances subsequent to 21 August 2017 in the amount of $2,915.  The applicant now appeals against the Magistrate’s decision not to award costs for the period up to 21 August 2017 and also to a reduction of $550 to costs awarded for work done after that date.

   Appeal

10. In short, the applicant submits that he was in fact the successful party in the matter as no conviction was recorded and no finding of guilt was made.  As a result, he contends that costs should follow the event and he should be awarded appropriate costs up to the time that the Magistrate found that there was a case to answer.

11. The respondent submits that the question of costs is a discretionary matter. I was reminded of s 189 of the Criminal Procedure Act 1921 (SA) which reads as follows:

    189—Costs generally

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

    The respondent also points out the unusual and difficult decision that the Magistrate had to make. 

12. In his reasons, the Magistrate indicated that in allowing the case to be reopened for further cross-examination of V the matter had not been completed.  It is very unclear how that cross-examination would have affected his decision to find a case to answer.  The alleged offending behaviour was presented not only by V’s evidence but by way of a recording.  It is hard to see how further cross‑examination of V could affect the Magistrate’s finding.  It might go to the question of credit or, indeed, V’s attitude to the applicant, but it seems difficult to imagine a situation where that would upset the relatively low threshold of finding a case to answer.  Also, the Magistrate had to take into account that a permanent stay of proceedings is not necessarily a completion of the matter. 

13. Faced with these difficulties, I find that the Magistrate has not in any way wrongly applied the discretion given to him in relation to costs.

    Costs subsequent to 21 August 2017

14. The applicant applied for costs in the sum of $3,465 for appearances after 21 August 2017.  All of those costs were awarded except for a sum of $1,250 for a full day’s counsel fee for an appearance in the Magistrates Court on 13 February 2019.  The Magistrate reduced that amount to $700 inclusive of GST.  His reasons for so doing were that the hearing, in fact, only took 30 minutes and, according to the Magistrate, the rest of the day could have been productively occupied by the applicant’s solicitor, who is both barrister and solicitor.  I can see no fault in the Magistrate exercising his discretion in that way.

15. Finally, the applicant submits that a goods and services tax (“GST”) was not awarded on top of the costs granted.  In my view, it is not appropriate to add an additional amount in an award for costs to allow for GST, as that is a matter between the solicitor and the client. 

    Conclusion

16. I dismiss the appeal.