Moores v Pearce (No.2)

[2013] QDC 133

DISTRICT COURT OF QUEENSLAND

CITATION:

Moores v Pearce (No.2) [2013] QDC 133

PARTIES:

TOD ANTHONY MOORES

(Appellant)

And

SHANE DARLEY PEARCE

(Respondent)

FILE NO/S:

2706/2012

DIVISION:

Appellate

PROCEEDING:

Appeal (s 222 Justices Act 1886 (Qld))

ORIGINATING COURT:

Magistrates Court, Caboolture

DELIVERED ON:

15 March 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

That the respondent pay the appellant’s costs of the appeal to the District Court to be fixed at $1,800.00.1.   

That there be no order as to costs of the proceeding at first instance in the Magistrates Court.2.   

CATCHWORDS:

Appeal - Costs at first instance

Justices Act 1886 (Qld), ss158, 158A

Justices Regulation 2004 (Qld)

Criminal Code 1899 (Qld), s 25

Latoudis v Casey (1990) 170 CLR 534

COUNSEL:

A Macadam for the Appellant

M P LeGrand, Solicitor, for the Respondent

SOLICITORS:

Direct Access Brief from the Appellant

Queensland Police Service for the Respondent

Introduction

1. When I gave the decision in the appeal, I gave leave to both parties to file and serve submissions on costs.  Those Submissions have now been received by the court.

Matters not in dispute

1. The parties have agreed that the respondent should be ordered to pay the appellant’s costs of the appeal to be fixed at $1,800.00, pursuant to identified provisions of the Justices Act 1886 (Qld) and the Justices Regulation 2004 (Qld).

1. Further, the parties have agreed that the District Court has power to order costs of the proceeding in the Magistrates Court below (from which the appeal was brought), acknowledging that such determination is by reference to ss 158 and 158A of the Justices Act, as considered in the relevant case law.

Contentions on disputed matters

1. The appellant has submitted that all the appellant’s costs in the Magistrates Court (as detailed in an attached Table to his written Submissions) should be ordered in his favour.  That Table contained a claim, in total, for $4,500.00 (negativing any suggestion that the representation was pro bono). The respondent and appellant agree that if the costs to be awarded to the appellant should be limited to the day of the hearing of the trial only, then $1,500.00 is the appropriate amount. 

1. For his part, the respondent submits that there should be no costs of the complaint heard at first instance on the bases: that the prosecution was brought in good faith; that the legal principles involved were complex; and that the prosecution’s position was upheld by the learned acting Magistrate following legal argument. 

Statutory provisions

1. Section 158 of the Justices Act, by s 158(1), states that, when justices, instead of convicting or making an order, dismiss the complaint, they may, by the “order of dismissal”, order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

1. But s 158A of the Justices Act contains limitations on the exercise of that discretion. By s 158A(1) it is stated that such an order for costs may be made in favour of a defendant against a complainant who is a police officer - as here - only if the justices are satisfied that it is “proper” that a costs order should be made. In terms, s 158A(2) states that, in deciding whether it is “proper”, the justices “must” take into account all relevant circumstances (which are then stated to include certain matters given by way of example). Those examples are set out in paragraphs (a) to (i) of section 158A(2).

1. It is correct to note that s 158A of the Justices Act is a legislative response following the decision of the High Court in Latoudis v Casey.[1]  It is also correct to note that the effect of the legislative response is a narrowing, to some extent at least, of what might otherwise be a principle based upon an order that “costs follow the event”.

   [1] (1990) 170 CLR 534.

Consideration of relevant circumstances

1. Since both parties have presented arguments seriatim concerning some of the examples given in s 158A(2) of the Justices Act, it is appropriate to canvas each which is relevant in turn.

1. The appellant accepts that the original proceeding was brought and continued in good faith, while observing that such a fact is not sufficient, of itself, to prevent a successful defendant from recovering costs – a matter not contested by the respondent. 

1. In terms of the investigation of the original matter and into the offence, while it is true that the investigating police officers were aware, from the first night, of the general nature of the “defence” under s 25 of the Criminal Code, since the evidentiary onus was always on the defendant to raise the detail of the defence so that a legal onus was then cast upon the prosecution to negative it beyond a reasonable doubt, it was appropriate for both the original investigating officers, as well as those responsible for bringing and continuing the proceedings, to conduct the investigation and the trial. Although my findings, on appeal, relied upon the prosecution’s failure to negative the issues concerning an ordinary person possessing ordinary powers of self-control, that, in the end, was a product of the trial process itself. 

1. The order for dismissal that I eventually made was not made on technical grounds.  As to the making of findings that there was insufficient evidence, that was done in the context of the original evidentiary onus mentioned above; and after a consideration of (somewhat) complex legal propositions. As the respondent rightly contends, in the first instance decision, the successful determination in favour of the respondent followed detailed evidence and argument. The eventual determination on appeal was that the prosecution had not gone far enough in discharging the onus, although the learned acting Magistrate had held that it had.  I therefore hold that, in a proper determination of the example appearing in paragraph (d), it was not really an order for dismissal having been made on the finding that there was insufficient evidence analogous to one on “technical grounds”.

1. The last example properly in contention deals with a failure to explain the defendant’s version of events or the failure to produce evidence likely to exonerate, where that explanation or evidence could have avoided a prosecution.  Although the appellant, as defendant, was co-operative, there was not sufficient evidence prior to the trial hearing which would have led to a reasonable prosecutor inevitably taking the decision to “avoid” a prosecution.  In the event, the example refers to something distant from the circumstances here (i.e. where a defendant has “unreasonably” declined an opportunity to do so “before” a charge is laid). 

General consideration

1. As is clear from s 158A(2) of the Justices Act, the obligation is to take into account all relevant circumstances (of which the examples are simply that). 

1. In overall terms, I accept the respondent’s submission that it was reasonable in the particular circumstances of this case for the prosecution to have proceeded to a full trial hearing. The matter needed to be addressed by specific, and detailed, evidence dealing with both an evidentiary and a legal onus.  It was only at the end of that process that it was open to the trial court, and hence an appeal court, to make decisions about the final outcome. The relevance of the conviction by the learned acting Magistrate is simply that the detailed evidence led, even though erroneously, to that court of first instance determining it to be sufficient for the prosecution to be successful. 

1. The consideration, on appeal, involved the determination of the extent of the legal obligations cast on a trial court when considering this kind of “defence”.  The fact that, on appeal, complicated, if not complex, considerations were undertaken as to that obligation reinforces the conclusion that the prosecution was of a kind that ought be considered to have been reasonably brought in all of the circumstances. 

1. This particular case is very much on the borderline of what is “proper”. As noted, that satisfaction does not depend, as it did before the enactment of s 158A of the Justices Act, predominantly upon the “event”. 

1. Taking all the issues that I have discussed into account, I am not satisfied that it is proper in the circumstances of this case that an order for costs should be made against the prosecution where the complainant, as here, is a police officer, especially where a little used “defence” under the Criminal Code was, necessarily, appropriately canvassed in detail by way of full trial. 

1. Accordingly, there will be no order as to costs of the determination of the complaint below.

Orders

1. The orders I intend to make are:

1.          That the respondent pay the appellant’s costs of the appeal to the District Court to be fixed at $1,800.00.

2.          That there be no order as to costs of the proceeding at first instance in the Magistrates Court.