Ninyette v Jones
[2018] WASC 317
•19 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: NINYETTE -v- JONES [2018] WASC 317
CORAM: MCGRATH J
HEARD: 30 JULY 2018
DELIVERED : 19 OCTOBER 2018
FILE NO/S: SJA 1014 of 2018
BETWEEN: ARTHUR LEWIS NINYETTE
Appellant
AND
HEATHER JONES
Respondent
ON APPEAL FROM:
For File No: SJA 1014 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: CHIEF MAGISTRATE S HEATH
File Number : PE 43480 of 2017
Catchwords:
Criminal law - Road Traffic Act 1974 (WA) - Third conviction for driving whilst not authorised to do so - Confiscation of vehicle - Discretion as to whether confiscation order should be made - Error of law - Magistrate did have discretion and failed to exercise that discretion - Matter remitted - Application under s 12A for a certificate to issue under Suitors' Fund 1964 (WA) - Whether certificate may issue - Certificate may issue
Legislation:
Criminal Appeals Act 2004 (WA), s 8, s 9(1), s 9(2), s 14, s 20(2)
Justices Act 1902 (WA), s 190, s 206, s 206J, s 219
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 49(9)
Road Traffic Act 1974 (WA), s 60, s 60A, s 62A, s 78A, s 80A, s 80C, s 80G
Suitors' Fund Act 1964 (WA), s 12A
Suitors' Fund Act Amendment Act 1971 (WA), s 5
Result:
Leave to appeal granted
Appeal allowed
The order to confiscate the appellant's vehicle is set aside
Matter remitted to the Magistrates Court to be dealt with according to law
Certificate issued pursuant to s 12A of the Suitors' Fund 1964 (WA) in the amount of $1,000
Category: B
Representation:
Counsel:
| Appellant | : | Mr H Glenister |
| Respondent | : | Ms H C Richardson |
Solicitors:
| Appellant | : | Hamis Glenister Barrister & Solicitor |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Baker v Bushell (Unreported, SCWA; Library No 981072/3, 27 July 1988)
Mineralogy Pty Ltd v CEO Department of Economic Regulation [2014] WASC 468
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Perry v The Queen (1975) WAR 33
Robinson v Cook (Unreported, SCWA; Library No 9812967/8, 30 September 1988)
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Wilson v McDonald (2009) 193 A Crim R 80
Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2017] WASC 286
MCGRATH J:
Mr Ninyette was charged with one offence of driving a motor vehicle when not authorised to do so under the Road Traffic (Authorisation to Drive) Act2008 (WA), contrary to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act 1974 (WA). On 24 August 2017, Mr Ninyette pleaded guilty to that charge and was sentenced.
As a consequence of that conviction, being Mr Ninyette's third conviction for driving whilst not authorised to do so, the Commissioner of Police made an application to confiscate Mr Ninyette's vehicle pursuant to s 80G(2) of the Road Traffic Act (confiscation application).
On 22 February 2018, the Chief Magistrate ordered the confiscation of Mr Ninyette's motor vehicle. Mr Ninyette contends that the Chief Magistrate applied the incorrect legislative provision and, by so doing, erred in finding that the court had no discretion as to whether the confiscation order should be made. I agree with Mr Ninyette that the Chief Magistrate did make that error of law. The court did have a discretion at law as to whether to order the confiscation and failed to exercise that discretion.
For the following reasons, leave to appeal is granted and the appeal is allowed. The matter must be remitted back to the Magistrates Court to be dealt with according to law.
As a consequence of my indication that I was minded to allow the appeal, Mr Ninyette made an application for a certificate to be issued under the Suitors' Fund Act 1964 (WA). The question arises as to whether such an order may be made. I have determined that a certificate will issue in the amount of $1,000.
In these reasons for decision, I will consider the following:
(a)The Magistrates Court proceedings.
(c)The ground of appeal.
(d)An assessment of the merits of the appeal.
(e)An assessment of whether a certificate may issue under s 12A of the Suitors Fund Act.
The Magistrates Court proceedings
On 18 August 2017, Mr Ninyette appeared in the Magistrates Court and pleaded guilty to one charge contrary to s 49(1)(a) and s 49(3)(ca) of the Road Traffic Act. The Prosecution Notice pleaded that on 24 June 2017 Mr Ninyette:
Drove a motor vehicle on a road while not authorised under the Road Traffic (Authorisation to Drive) Act 2008 Part 2 and who had held an Australian driver's licence of the kind required but ceased to hold the licence of the kind most recently held, other than because he had voluntarily surrendered the licence, the licence had expired, or he was no longer authorised to drive because of penalty enforcement laws as described in section 49(9) of the Road Traffic Act 1974.
Magistrate Campione imposed a fine in the amount of $1,000 and disqualified Mr Ninyette from holding or obtaining a driver's licence for 9 months from 18 August 2017.
On 10 October 2017, the Commissioner of Police filed an application in a prosecution (Application) to confiscate Mr Ninyette's motor vehicle. The application was in the following terms:
The application applies for an order for confiscation of a motor vehicle as there has been a conviction of an impounding offence (driver's licence), where the offence is the 3rd or more of its kind within 5 years (s 80C (1) of the Road Traffic Act 1974).
This application is made pursuant to s 80G of the Road Traffic Act 1974 in proceedings commenced no later than 3 months after the proceedings in respect of a relevant conviction which occurred on 18/08/2017 (Section 80G(2)(b)(ii) applies), where the conviction was for an impounding offence (driver's licence).
The dates of the previous relevant convictions within 5 years:
1st 7/12/2016
2nd 5/05/20173rd 18/08/2017
In support of the Application, the Commissioner of Police filed an affidavit sworn by a police officer on 29 September 2017 in the following terms:
Third (3rd) conviction for driver's licence impounding offence. On the 18th August 2017, NINYETTE was convicted in the Perth Magistrates Court on the charge of driving Toyota Landcruiser station sedan, registered number KM35086 on the 24th June 2017 whilst not the holder of a requisite licence, that being No Authority to Drive - Cancelled; Road Traffic Act 1974; S.49(1)(a) & (3)(ca).
Second (2nd) conviction for driver's licence impounding offence. On the 5th May 2017, NINYETTE was convicted in the Perth Magistrates Court on the charge of driving Toyota Landcruiser station sedan, registered number KM35086 on the 11 March 2017 whilst not the holder of a requisite licence, that being No Authority to Drive - Cancelled; Road Traffic Act 1974; S.49(1)(a) & (3)(ca).
First (1st) conviction for driver's licence impounding offence. On the 7th December 2016, NINYETTE was convicted in the Moora Magistrates Court on the charge of driving Holden motor vehicle bearing vehicle identification number (VIN) 6H8VSK19HTL894274 on the 6th October 2016 whilst not the holder of a requisite licence, that being No Authority to Drive - Cancelled; Road Traffic Act 1974; S.49(1)(a) & (3)(b).
On 22 February 2018, Mr Ninyette appeared before the Chief Magistrate. Mr Ninyette was represented by a legal practitioner. Mr Ninyette accepted that he had been convicted of the three offences as particularised in the affidavit of the officer.[1] Mr Ninyette asked that the Chief Magistrate exercise his discretion not to confiscate the motor vehicle on the basis that the confiscation would result in hardship to both him and his family.[2]
[1] ts 3 (22/02/2018).
[2] ts 3, 6 - 7 (22/02/2018).
In considering the Application relating to the appellant the Chief Magistrate expressed the view, on several occasions, that his discretion to consider the Application under s 80C was fettered by s 80G(6A) of the Road Traffic Act:[3]
HIS HONOUR: Do I have a general discretion, because it seems 6A of 80G only applies to severe financial or physical hardship to a person other than the driver of the vehicle, whereas Mr Ninyette was the driver of the vehicle.
…
HICKS, MR: What about 5B, sir? Does that help?
HIS HONOUR: It doesn't because it says I'm required to grant the - 6A says I've got to grant the application.
…
HIS HONOUR: I think 6A stymies us in terms of the discretion in the court.
HIS HONOUR: - - - I don't know the legislative history of it, whether the discretion was being exercised too widely somehow and then there was a legislative amendment, given that it has got a 6A - - - which suggests it has been inserted. It seems that Parliament at some point decided to toughen the test - - -
HIS HONOUR: - - - because, essentially, there's no discretion in relation to you, only in relation to others why may own or have an interest in the vehicle or use the vehicle regularly.
[3] ts 5 - 7 (22/02/2018).
In granting the Application, the Chief Magistrate observed that the Court did not have a discretion in respect of the application:[4]
HIS HONOUR: Look, I commend you for your tenacity, but I think Parliament effectively, blocked my ability to grant your application. So I think the vehicle was to be confiscated. So I will make an order in those terms and directing that the vehicle and the keys be surrendered to AAAC Towing, 34 Hoskins Drive, Landsdale, between 8 am and 5 pm on a weekday on or before perhaps 2 March.
HIS HONOUR: Yes, Look, I appreciate, My Ninyette, and if it hadn't been for the legislation, then I could have considered the things that Ms Hon said on your behalf. But the Parliament said I have to take the vehicle off you.
ACCUSED: Yes. But I never - I never said they could take that, like, they taken my car without my consent.
HIS HONOUR: Yes. Yes. The Parliament has taken your car by virtue of the legislation and that, unfortunately, is a matter of Parliament's decision.
[4] ts 8 - 9 (22/02/2018).
Accordingly, the Chief Magistrate ordered the confiscation of Mr Ninyette's motor vehicle.[5]
[5] ts 8 - 9 (22/02/018).
The Ground of Appeal
The ground of appeal is in the following terms:[6]
The learned Chief Magistrate erred in law by considering that section 80G(6A) of the Road Traffic Act applied to the application for the confiscation of vehicle [registration plate] made by the respondent under s 80C of the Road Traffic Act.
[6] Amended Appeal Notice dated 18 June 2018.
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA), which means that leave to appeal is required.[7] An appeal may be brought on the basis that the court of summary jurisdiction made an error of law or fact, that it imposed a sentence that was inadequate or excessive, or that there has been a miscarriage of justice.[8]
[7] Criminal Appeals Act 2004 (WA), s 9(1).
[8] Criminal Appeals Act, s 8(1).
The court must not grant leave to appeal unless a ground has a reasonable prospect of success. A reasonable prospect of success means that the ground has a real, rational and logical prospect of succeeding and is more than arguable.[9]
[9] Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler & Robert‑Smith JJA).
The court may, relevantly, dismiss or allow the appeal and may set aside any order, and order that the case be dealt with again by the court of summary jurisdiction.[10]
[10] Criminal Appeals Act, s 14.
An assessment of the merits of the appeal
Division 4 of pt V of the Road Traffic Act provides for the impounding and confiscation of vehicles in specified circumstances. Subdivision 3 of div 4 of pt V concerns the impounding and confiscation of vehicles by court order. There are, relevantly, two alternative pathways by which the Commissioner may apply to confiscate a vehicle, being pursuant to s 80A or s 80C of the Road Traffic Act.
Section 80A of the Road Traffic Act provides for the confiscation of vehicles in specified offences in the following terms:
80A.Confiscation of vehicles used in certain impounding offences (driving)
(1)A court that convicts a person of an impounding offence (driving) may, by order and in accordance with subsection (2), (3) or (4), confiscate the vehicle used in the offence.
(2)A court may make an order if it is satisfied that -
(a)the offence was committed in a school zone; or
(b)the offence was committed in a confiscation zone other than a school zone and the commission of the offence resulted in, or was likely to result in -
(i)members of the public experiencing harassment, intimidation, fear or alarm; or
(ii)damage to any property, including the road;
or
(c)the commission of the offence involved the driving of the vehicle at 90 km/h or more above the speed limit.
(3)The court may make the order if it is satisfied that -
(a)the offence was committed in a confiscation zone; and
(b)in the 5 years before the day on which the offence was committed the person was convicted of a previous impounding offence (driving) which was committed in a confiscation zone.
(4)The court may make the order if it is satisfied that in the 5 years before the day on which the offence was committed the person was convicted of 2 previous impounding offences (driving).
Section 78A defines the term 'impounding offence (driving)' as being, relevantly, an offence against s 60, s 60A or s 62A of the Road Traffic Act.
The second relevant pathway for the confiscation of a vehicle is s 80C of the Road Traffic Act, which provides that a court may confiscate a vehicle of a person who is convicted of an impounding offence (driver's licence). Section 80C is in the following terms:
80C.Impounding offence (driver's licence) by previous offender, court may confiscate vehicle of
(1)A court that convicts a person of an impounding offence (driver's licence) may, by order, confiscate a vehicle referred to in section 80GA.
(2)A court is not to make an order under subsection (1) unless it is satisfied that in the 5 years before the day on which the offence was committed the person was convicted of 2 previous impounding offences (driver's licence).
Section 78A of the Road Traffic Act defines an impounding offence (driver's licence) as:
impounding offence (driver's licence) means -
(a)an offence against section 49(1)(a) that is committed by a person described in section 49(3)(a), (b), (ca), (c) or (da); or
(b)an offence against the Road Traffic (Authorisation to Drive) Act 2008 section 38(1)(a); or
(c)an offence committed before the coming into operation of the Road Traffic Amendment Act 2008 section 5(a) that was an impounding offence (driver's licence) as defined in this section as in force when the offence was committed;
Section 80G of the Road Traffic Act states the procedure and grounds for making orders under s 80A of the Act:
80G.Procedure and grounds for making orders under s. 80A to 80CB
(1)In this section -
Commissioner includes a person for the time being authorised by the Commissioner in writing to perform functions of the Commissioner under this section;
order means an order under section 80A, 80B(1), 80C(1), 80CA(1) or 80CB(1).
(2)An application for an order -
(a)can only be made by the Commissioner; and
(b)is to be heard -
(i)as part of the proceedings in which the person is convicted of the offence because of which the order is sought; or
(ii)in subsequent proceedings commenced no later than 3 months after the proceedings in respect of the conviction.
(3)A person is to be regarded as having sufficient notice of the Commissioner's intention to make an application for an order in respect of a particular vehicle if -
(a)the Commissioner gives the person written notice of that intention at least 14 days before the application is made and the person is -
(i)the driver of the vehicle; or
(ii)a responsible person; or
(iii)any other person who the Commissioner is aware has or may have an interest in the vehicle;
or
(b)in the case of a person not referred to in paragraph (a), the Commissioner publishes notice of that intention at least 14 days before the application is made in a newspaper having State wide circulation.
(3A)Despite subsections (2) and (3), the court may make an order on its own initiative in proceedings referred to in subsection (2)(b), in which case subsection (3) applies as if -
(a)references to the Commissioner were references to the court; and
(b)references to an intention to make an application were references to an intention to make an order.
(4)Before a court makes an order it has to give a reasonable opportunity to show cause why the order should not be made to -
(a)the driver of the vehicle; and
(b)if a person other than the driver is a responsible person for the vehicle, each responsible person; and
(c)each other person, if any, who has an interest in the vehicle.
(5)In determining whether or not to make an order other than an order under section 80A (3) or (4), the court may have regard to -
(a)whether the offence because of which the order is sought was committed with the knowledge and acquiescence of a person who has an interest in the vehicle; and
(b)whether making the order will cause severe financial or physical hardship to a person who has an interest in the vehicle or the usual driver of the vehicle; and
(c)any other relevant matter.
(6A)The court is required to make an order that may be made under section 80A(3) or (4) unless it is satisfied that the order would cause severe financial or physical hardship to a person, other than the driver of the vehicle, who has an interest in the vehicle or is the usual driver of the vehicle.
(6)A person -
(a)who is given notice under subsection (3) (a); or
(b)who has satisfied the court that the person has an interest in the vehicle,
must not do a restricted act in respect of the vehicle unless a court has made an order approving of the proposed act.
Penalty for this subsection: a fine of 50 PU.
(7A)A person does a restricted act in respect of the vehicle if the person -
(a)disposes of any interest that the person has in the vehicle; or
(b)does anything, or causes or permits another person to do anything, that results or will result in a reduction in the value of the vehicle.
(7)If the Commissioner advises the CEO in writing that the Commissioner intends to apply for an order in respect of a particular vehicle, the CEO must not, before the application is decided, transfer the licence of the vehicle if the vehicle is licensed.
The application for the confiscation of Mr Ninyette's vehicle was an application made on the ground of Mr Ninyette's conviction for an impounding offence (driver's licence) under s 80C of the Road Traffic Act. Therefore, in determining whether to make that order, the Chief Magistrate was required to consider the discretionary factors stated in s 80G(5) of the Road Traffic Act. Mr Ninyette's counsel referred to the relevant discretionary factors as being the impact that the confiscation of the vehicle would have on family members and his employment opportunities.[11] It was necessary for the Chief Magistrate to consider those factors in accordance with s 80G(5) of the Road Traffic Act, for the purpose of exercising his discretion under s 80C.
[11] ts 3 - 4 (22/02/2018).
The Chief Magistrate did not consider the discretionary factors for the reason that his Honour applied s 80G(6A) of the Road Traffic Act. However, s 80G(6A) has no application in respect of confiscations based on impounding offences (driver's licence) made under s 80C. Accordingly, his Honour erroneously considered that the discretionary factors were fettered, in that the only relevant factor for consideration was whether severe financial or physical hardship may be incurred by a person, other than the driver, who has an interest in the vehicle, or is the usual driver of the vehicle.
Accordingly, the Chief Magistrate erred in law. Therefore, leave to appeal is granted and the appeal is allowed.
An assessment of whether a certificate may issue under s 12A of the Suitors Fund Act
Mr Ninyette is unable to be paid costs for the reason that the respondent is a police officer. Section 20(2) of the Criminal Appeals Act 2004 (WA) provides:
(2)If a JP or a police officer, acting in an official capacity, is a party to proceedings under this Part, the Supreme Court must not order that the JP or officer is to pay any costs.
Therefore, Mr Ninyette seeks a cost certificate under the Suitors' Fund Act1964 (WA). Section 12A(1) and s 12A(2) of the Suitors' Fund Act provide:
12A.Costs of trial where conviction quashed without new trial may be met from Fund; cost certificates
(1)Where after the coming into operation of the Suitors' Fund Act Amendment Act 1971, on an appeal against a conviction for an indictable offence the conviction is quashed without a new trial being ordered, the Supreme Court may, upon application made to it in that behalf, grant to the appellant a costs certificate in respect of the costs of the appeal or such part of those costs as the Court may determine.
(2)Where after the coming into operation of the Suitors' Fund Act Amendment Act 1971, an appeal on a question of law succeeds and the court that allowed the appeal would, but for the provisions of some other Act or law, have ordered costs of the appeal, fixed or to be taxed, or some proportion thereof, to be paid by the respondent -
(a) that court shall make a finding to that effect and shall specify the amount of costs it would have fixed or state that it would have directed them to be taxed, or what proportion of the taxed costs it would have ordered to be paid, as the case requires; and
(b)the Supreme Court may, upon application made to it in that behalf, grant a costs certificate to the appellant and, if so, shall include in it the substance of the finding referred to in paragraph (a).
The respondent does not oppose the grant of a certificate under s 12A(2)(b) of the Suitors' Fund Act but raised a legal question, being whether such a certificate may be issued.
In determining whether an order may be made under s 12A(2)(b), the court must be satisfied that each of the following are answered in the positive:[12]
(a)That this is an appeal which was resolved in favour of the appellant;
(b)That this is an appeal on a question of law; and
(c)That, but for the provision of some other Act or law preventing the court from doing so, the Court in the circumstances would have ordered costs in favour of the appellant.
[12] Suitors' Fund Act 1964 (WA), s 12A(2).
The first two matters in respect of which the Court must be satisfied have been satisfied. These proceedings are an appeal under pt 2 of the Criminal Appeals Act. Section 3 of the Suitors' Fund Act provides that an 'appeal' includes an appeal under pt 2 of the Criminal Appeals Act. This appeal is concerned with the erroneous application of the provisions of the Road Traffic Act and is therefore an appeal on a question of law.[13]
[13] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97, [53] - [57].
The respondent raises an issue regarding the third requirement. That is whether the court 'would, but for the provisions of some other Act or law, have ordered costs of the appeal' to be paid by the respondent. The question that arises is whether the statutory framework which provides the Court's power to grant costs in an appeal, being the Criminal Appeals Act, confers a power to grant costs against the respondent that is then curtailed 'by some other Act or law', or whether it confers no such power.
Section 12A was inserted into the Suitors' Fund Act by the Suitors' Fund Act Amendment Act 1971 (WA).[14] At the time of the enactment of s 12A, the power to award costs in courts of summary jurisdiction was conferred by the provisions of pt VIII of the Justices Act 1902 (WA). The relevant provisions of the Justices Act were s 190, s 206 and s 219.
[14] Suitors' Fund Act Amendment Act1971 (WA), s 5.
Section 190 of the Justices Act provided:
The Court to which the appeal is made may adjourn the hearing of the appeal, and, upon the hearing thereof, may confirm, reverse, or modify the decision appealed from, or remit the matter, with the opinion of the Court, to the Court of Petty Sessions, or may make such other order in the matter as the Court may think just, and may, by such order, exercise any power which the Court of Petty Sessions might have exercised, and such order shall have the same effect and may be enforced in the same manner as if it had been made by the Court of Petty Sessions. Except as provided in section two hundred and nineteen the Court may make such order as to costs to be paid by either party as the Court may think fit.
Section 206J of the Justices Act relevantly provided:
(1)Subject to this Act the Court or Judge may make such order as to costs as it deems just.
Section 219 of the Justices Act provided:
No costs shall be allowed against any Justice or police officer in respect or by reason of any appeal under this Act, or of any proceeding in the Supreme Court in its control over summary convictions. Provided that where, on an appeal brought by a police officer, the decision appealed against is confirmed, or, if not confirmed, has involved, in the opinion of the Court or Judge hearing the appeal, a point of law of exceptional public importance, costs may be allowed to the respondent. Such costs shall not be recoverable from the police officer, but the Registrar of the Supreme Court shall, in any case where costs are so allowed, give to the respondent a certificate sealed with the seal of the Supreme Court showing the amount of such costs, and, on production of the certificate to the Treasurer, the respondent shall be paid such amount of the Consolidated Revenue Fund. (Emphasis added).
Accordingly, the Justices Act prohibited costs being awarded to a successful appellant by way of an order against an unsuccessful respondent where the prosecution was commenced by a police officer.
In circumstances where the police officer was the respondent, the statutory framework was interpreted as permitting the granting of a certificate under s 12A(2) of the Suitors' Fund Act. That is, the power to grant a costs certificate under s 12A(2)(b) was available to a successful appellant, notwithstanding that the prosecution was commenced by a police officer, because s 219 of the Justices Act amounted to 'the provisions of some other Act or law' but for which costs would have been awarded to the appellant.
The respondent accepts that the court has consistently held that the power to grant a costs certificate under s 12A(2)(b) was available to successful appellants in summary conviction appeals for the reason that s 219 of the Justices Act was an instance of the provisions 'of some other Act' but for which costs would have been awarded to the appellant.[15] In support of that proposition the respondent referred to Perry v The Queen,[16] Baker v Bushell[17] and Robinson v Cook.[18]
[15] Respondent's submissions, [42].
[16] Perry v The Queen (1975) WAR 33.
[17] Baker v Bushell (Unreported, SCWA; Library No 981072/3, 27 July 1988).
[18] Robinson v Cook (Unreported, SCWA; Library No 9812967/8, 30 September 1988).
In Perry v The Queen the Full Court considered the operation of s 12A(2) of the Suitors' Fund Act in the context of the question of whether the section permitted a successful appellant to be issued with a costs certificate in respect of an appeal against a conviction for an indictable offence. The Full Court unanimously rejected that proposition. However, in determining the operation of s 12A(2), the court also considered the scope of that section in respect of an appeal under the Justices Act. It is necessary that I outline the relevant paragraphs of Perry v The Queen:[19]
Apart from this however we are satisfied that s 12A (2) was not intended and should not be construed as conferring rights generally on appellants in criminal proceedings.
The condition on which the subsection provides that the Court can grant a costs certificate is that the appellate Court would 'but for the provisions of some other Act or law have ordered the costs of the appeal fixed or to be taxed or some proportion thereof to be paid by the appellant'. This presupposes that there is ordinarily a legal right for the appellant to obtain an order for costs in the particular type of proceedings. No such right however exists so far as concerns costs on appeals against convictions by juries for indictable offences.
There is no right to costs either civil or criminal at common law. The right to costs is purely a creature of statute. The right of successful litigants to costs in civil proceedings was conferred by statute comparatively early in English legal history, but so far as criminal proceedings or other proceedings in which the Crown is a party are concerned the rule long applied that the Crown neither paid nor received costs. Under the provisions of the Criminal Code the right to costs in relation to criminal proceedings is conferred in a limited class of case, vid Ch LXVI, s 674 et seq. But nowhere in the Criminal Code is there any provision entitling either the Crown or any appellant to recover costs in any appeal against a conviction on indictment, and in the absence of such a provision the condition precedent to an application for costs under s 12A(2) is clearly not satisfied.
So far as proceedings under the Justices Act are concerned, however, the position is vastly different. Under Pt VI of that Act there is provision for costs to be recoverable on conviction, or dismissal in respect of simple offences triable before justices. Under s 206 of the Act in the case of appeals by way of order to review, the court or judge may make such order as to costs as he deems just. There are however exceptions, which include s 219 of the Act which provide that no costs are to be allowed against a justice or police officer by reason of any appeal under the Act, and also s 72 of the Traffic Act which provides immunity to the Minister, a local authority inspector or member of the police force acting in good faith for the purpose of executing the Act.
There are similar provisions in other statutes conferring immunity from liability for costs to which it is unnecessary to refer.
All this points to what is in our view clearly the proper construction of the subsection, viz that where the provisions of the law normally allow costs to be awarded but where some special provision of the law relieves an unsuccessful respondent from liability for costs in either civil or criminal proceedings, then the successful appellant is entitled to relief as prescribed by s 12A (2).
[19] Perry v The Queen, 35 - 36.
Counsel for the respondent raised in submissions that the reasoning of the Full Court in Perry v The Queen concerning the scope of s 12A(2) of the Suitors' Fund Act was obiter dicta. The question to be decided by the Full Court concerned whether a costs certificate may issue under the Suitors Fund Act in circumstances where the applicant was acquitted on indictment.
Counsel for the respondent further submitted that the remarks of the Full Court in Perry v The Queen were seriously considered obiter dicta with respect to a legislative framework which is broadly analogous to the current provisions. That is correct. There is no basis to distinguish the provisions of the Justices Act that the Full Court considered in Perry v The Queen and the provisions of the Criminal Appeals Act. Some doubts have been raised as to whether a single judge of this court is bound by seriously considered obita dicta of the Court of Appeal as an intermediate appellate court.[20] The alternative view has been expressed that seriously considered obiter dicta of the Court of Appeal must be followed unless the judge is satisfied that it is wrong.[21] I do not consider that the Full Court's seriously considered obiter dicta was wrong.
[20] Mineralogy Pty Ltd v CEO Department of Economic Regulation [2014] WASC 468, [81].
[21] Wright Prospecting Pty Ltd v Hancock Prospecting Pty Ltd [No 13] [2017] WASC 286, [27].
Counsel for the respondent outlined an interpretation of the provisions of the Criminal Appeals Act in support of the contention that the Full Court's interpretation was wrong or does not apply to this case. In short, the contention is that on a proper construction of s 14(1)(h) and s 20(2) of the Criminal Appeals Act there is no power conferred on this court to allow it to order costs against an unsuccessful police officer respondent in a summary conviction appeal. Counsel for the respondent then contended that given the court has no power to award costs against an unsuccessful police officer respondent it cannot be the case that the court 'would, but for the provisions of some other Act or law, have ordered costs' against the respondent.
I do not accept that interpretation of the Criminal Appeals Act. By s 14(1)(h) the Parliament has conferred upon this court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate unless the case comes within the specific provisions of s 20, in which case those specific provisions must apply.[22] In exercising that unconstrained discretion the court must have regard to the public interest and all relevant circumstances.[23]
[22] Wilson v McDonald (2009) 193 A Crim R 80, [5].
[23] Wilson v McDonald, [10].
As I understand the respondent's contention, the effect of s 20 of the Criminal Appeals Act, when read with s 14(1)(h) of the Criminal Appeals Act, is that the court's power to order costs does not extend to costs against an unsuccessful respondent who is a police officer. In my view, the words in s 20 of the Criminal Appeals Act clearly presuppose that the court otherwise has power to order costs against a police officer who is a respondent. In other words, s 20 would not have been required unless the discretion in s 14(1)(h) was otherwise capable of being exercised to order costs against a police officer who is a successful party to an appeal. The effect of s 20 of the Criminal Appeals Act is to prevent the Court from exercising its costs discretion in that way.
The consequence is that a successful appellant in an appeal to a single judge is entitled to seek an order for costs under s 14(1)(h) of the Criminal Appeals Act. Ordinarily, the Court would, with reference to all relevant circumstances, exercise that discretion to order that the successful appellant's costs be paid by the respondent. In the context of this appeal, the appellant would on that analysis have been entitled to costs. I would have ordered costs in accordance with s 14(1)(h) of the Criminal Appeals Act. However, s 20 is a provision of an Act which precludes this Court from making an order that the respondent to this appeal pay Mr Ninyette's costs. The sole reason that costs cannot be awarded against the appellant in this case is by 'virtue of some other Act or law', being s 20(2) of the Criminal Appeals Act.
Counsel for the respondent further contended that the words 'but for the provisions of some other Act or law' must be a reference to an Act other than the Act which confers the power to order costs. That is, the provisions that specifically limit the discretion to order that costs be paid to the successful appellant must necessarily not be in the Act that confers the discretion to order costs. I do not accept that contention. The words 'but for the provisions of some other Act or law' must be understood as being a reference to some other Act, apart from the Suitors' Fund Act, or other law, which precludes an award of costs in those circumstances.
Further, the interpretation proffered by the respondent is wholly inconsistent with the clear legislative intent that underlies s 12A(2)(b) of the Suitors' Fund Act. In my view, the present case is an example of the type of case which s 12A(2)(b) was designed to meet.
The purpose of s 12A(2) is to ensure that persons who succeed on appeal because the court at first instance erred in respect of a question of law, but who are unable to recover their costs against the unsuccessful respondent because of a legislative provision that precludes that recovery, are nevertheless able to recover their costs through the fund maintained under the Suitors' Fund Act for that purpose.[24]
[24] Western Australia, Hansard, Legislative Assembly, Tuesday 21 September 1971, 1584.
Conclusion
Accordingly, leave is granted, the appeal is allowed, the order to confiscate the appellant's vehicle is set aside and the matter is remitted to the Magistrates Court of Western Australia for rehearing.
Pursuant to s 12A(2) of the Suitors' Fund Act, given that the appellant has succeeded on an appeal on a question of law and, but for the provisions of s 20(2) of the Criminal Appeals Act, this court would have ordered that the appellant's costs be paid by the respondent, a costs certificate is granted to the appellant in the amount of $1,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZT
ASSOCIATE TO THE HONOURABLE JUSTICE MCGRATH19 OCTOBER 2018
6
7
6