Moore v Queensland Police Service (No. 2)

[2012] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:

Moore v Queensland Police Service (No. 2) [2012] QDC 218

PARTIES:

Aaron Mark Moore

(appellant)

v

Queensland Police Service

(respondent)

FILE NO/S:

18/2011

DIVISION:

Appeal

PROCEEDING:

Appeal from conviction (costs)

ORIGINATING COURT:

Mount Isa Magistrates Court

DELIVERED ON:

31 August, 2012

DELIVERED AT:

Beenleigh

HEARING DATE:

28 February 2012

JUDGE:

Dearden DCJ

ORDER:

Senior Constable BJ McDonell pay the appellant Aaron Mark Moore the sum of $ 4,764.70.

CATCHWORDS:

CRIMINAL LAW – APPEAL – COSTS –  Costs of appeal awarded after successful appeal – where matter remitted for retrial – costs of summary proceedings awarded where magistrate fell into errors of law

LEGISLATION:

Justices Act 1886 (Qld) ss. 158(1), 158A(1) and (2), 226 and 232A

Justices Regulation2004 (Qld), Schedule 2 – Scale of Costs

CASES:

Moore v Queensland Police Service [2012] QDC 133

COUNSEL:

M Hibble for the appellant

C Winlaw for the respondent

SOLICITORS:

Warren Hunter solicitor for the appellant

Director of Public Prosecutions for the respondent

Introduction

1. The appellant, Aaron Moore, succeeded in his appeal in respect of two charges, a public nuisance offence and an obstruct police offence.  In respect of the public nuisance offence, a verdict of acquittal was entered. In respect of the obstruct police charge, the matter was remitted to the Magistrates Court of Mount Isa for retrial before a different magistrate.[1]

   [1]Moore v Queensland Police Service [2012] QDC 133 paras 34 [- 36].

1. The parties subsequently provided written submissions to this court on the issue of costs. 

The Law

1. Pursuant to Justices Act s.226, the District Court on appeal “may make such order as to costs to be paid by either party as the Judge may think just.” The power to order costs includes not only the costs of the appeal, but also the costs of the original Magistrates Court proceedings.[2]

   [2]Justices Act s.225 (2) & (3).

1. Costs on appeal are limited, pursuant to Justices Act s.232A, up to the amount prescribed by Schedule 2 – Scale of Costs,[3] although a higher amount may be allowed for costs if the judge on appeal is satisfied “that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.”[4]

   [3]Justice Regulation 2004.

   [4]Justices Act s.232A(2).

1. Pursuant to Justices Act s.158(1), there is a power in the Magistrates Court to order costs on a dismissal that seem “just and reasonable”, subject to the constraints of Justices Act s.158A(1) and (2). The costs which can be ordered are again restricted to the amounts contained in Schedule 2 – Scale of Costs,[5] unless the court is satisfied “that [a] higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”[6]

   [5]Justice Regulation 2004

   [6]Justices Act s.158B(2).

Discussion

1. I consider that the appellant, who was completely successful on appeal, should be entitled to the costs of appeal as follows:-

(a)	Work up to and including day 1 of the appeal (increased by 20% for appeal to District Court judge)	$1,800
(b)	Application on costs	$  875
(c)	Court attendance for June 2012 – delivery of appeal decision	$   125
(d)	Court attendance (date to be specified) on decision on costs	$   125
TOTAL	$2,925

1. In respect of the Magistrates Court summary proceedings, I am not persuaded that there was any special difficulty, complexity and/or importance of the case.  The issue was very clearly the errors of law on the part of the learned magistrate, both in a purported widening of particulars and a failure to identify a specific element of the charge of obstruct police which was required to be proved beyond reasonable doubt. 

1. In those circumstances, I consider that the appellant is entitled to the costs of the trial, even though the charge of “obstruct police” is to be remitted to the Magistrates Court for retrial.  Accordingly the appellant is entitled to the following costs:

(a)	Work for hearing of complaint up to and including day 1	$1,500.00
(b)	Attending for the delivery of the Magistrate’s decision	$   250.00
(c)	Disbursements (doctor’s report and court depositions)	$    89.70
TOTAL	$1,839.70

Order

1. That Senior Constable BJ McDonell pay the appellant Aaron Mark Moore the sum of $ 4,764.70.