P, J v Police - [2018] SASC 173

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
P, J v POLICE
[2018] SASC 173
Judgment of The Honourable Justice Lovell
22 November 2018
PROCEDURE - COSTS - DEPARTING FROM THE GENERAL RULE - ORDER FOR COSTS ON INDEMNITY BASIS
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
MAGISTRATES - ORDERS AND CONVICTIONS - COSTS - AGAINST PERSON COMMENCING PROCEEDINGS - AGAINST CROWN, POLICE OR PUBLIC OFFICIAL
The appellant was charged with aggravated assault against his spouse in the Magistrates Court. The prosecution withdrew the charge on the second day of trial. The appellant applied for an award of indemnity costs. The Magistrate refused to award costs on an indemnity basis.
Whether the Magistrate erred in failing to award costs on an indemnity basis in the circumstances - whether the Magistrate erred in refusing to make an award to cover expert evidence
Held:
1. The Magistrate did not err in finding that the case was not sufficiently 'exceptional' to warrant an award of indemnity costs.
2. The Magistrate did not err in failing to give proper regard to the gravity of the consequences a conviction would have for the appellant.
3. It was within the exercise of the Magistrate's broad discretion to award an additional amount to cover the preparation of summonses and the taking of witness statements.
4. The Magistrate did not err in awarding costs for Counsel fees in accordance with those allowable on the Scale of Costs.
5. The Magistrate did not err in refusing to award costs for the attendance of the appellant's solicitor at trial.
6. The Magistrate erred in failing make an award of costs for expenses incurred by the appellant in relation to expert evidence.
Appeal allowed.
The costs order made by the Magistrate is to be set aside and the appellant is entitled to costs in the sum of $11,055.00.
Magistrates Court Act 1991 (SA) s 42; Summary Procedure Act 1921 (SA) s 189; Magistrates Court Rules 1992 (SA) r 51; Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
AB v The Queen (1999) 198 CLR 111; Konieczka v Police [2006] SASC 288; House v The King (1936) 55 CLR 499; Curnow v Police [2008] SASC 84; Beasley v Marshall (No 3) (1986) 41 SASR 321; Latoudis v Casey (1990) 170 CLR 534; Hamdorf v Riddle [1971] SASR 398; Norton v Morphett (1995) 83 A Crim R 90; Stanley v Phillips (1966) 115 CLR 470; SA Police v Leonard (1995) 64 SASR 390, considered.

P, J v POLICE
[2018] SASC 173
LOVELL J:
Introduction

On the second day of the trial of JP (‘the appellant’) on a charge of Aggravated Assault against a Spouse, the prosecution withdrew the charge. The appellant sought indemnity costs against the prosecution in the sum of $54,900. The Magistrate declined to award indemnity costs and awarded costs in the sum of $9,000. The appellant seeks to overturn that decision.
Background

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading P, J v Police

Details

AGLC: P, J v Police [2018] SASC 173
Case: [2018] SASC 173
Decision Date: 22 November 2018

CaseChat Overview and Summary

P, J v Police is an appeal against the costs decision of the Magistrates Court of South Australia. The appellant was charged with one count of Aggravated Assault against a Spouse and faced trial. On the second day of the trial, the prosecution withdrew the charge. The appellant sought indemnity costs against the prosecution in the sum of $54,900. The Magistrate declined to award indemnity costs and awarded costs in the sum of $9,000. The appellant seeks to overturn that decision. The appellant argued that the prosecution withdrew the charge due to the destruction of the complainant’s credibility in cross-examination. The prosecution denied that allegation and submitted that the decision was made in accordance with prosecutorial guidelines, following both the complainant’s evidence and after the receipt of new evidence at the end of the first day of trial.

The legal issue before the court was whether the appellant was entitled to indemnity costs against the prosecution. The court noted that the appellant was entitled to costs, but the question was whether the circumstances warranted an award on an indemnity basis. The court considered the principles established in House v The King, which state that an appeal against a discretionary order must identify an error in the exercise of discretion. The court found that the Magistrate had considered the relevant factors in making the decision, but that the decision was unreasonable or plainly unjust. The court noted that the prosecution had not provided any evidence to support its decision to withdraw the charge, and that the decision appeared to be based on extraneous or irrelevant matters. The court also noted that the appellant had incurred significant costs in preparing for the trial, and that the award of costs of $9,000 was inadequate to compensate the appellant for those costs.

The appeal was allowed and the matter was remitted to the Magistrates Court for a rehearing of the costs application. The court found that the appellant was entitled to indemnity costs against the prosecution in the sum of $54,900. The court noted that the decision to withdraw the charge appeared to be based on extraneous or irrelevant matters, and that the appellant had incurred significant costs in preparing for the trial. The court also noted that the award of costs of $9,000 was inadequate to compensate the appellant for those costs. The court ordered that the appellant be awarded indemnity costs against the prosecution in the sum of $54,900.

Orders

Orders of the court

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Background

Background to the litigation

On the second day of the trial of JP (‘the appellant’) on a charge of Aggravated Assault against a Spouse, the prosecution withdrew the charge. The appellant sought indemnity costs against the prosecution in the sum of $54,900. The Magistrate declined to award indemnity costs and awarded costs in the sum of $9,000. The appellant seeks to overturn that decision.Background The appellant was charged with one count of Aggravated Assault against a Spouse contrary to section 20(3) of the Criminal Law Consolidation Act 1935. It was alleged by the prosecution that the appellant had assaulted his wife (‘the complainant’) by pushing and pulling her in their matrimonial home on Christmas Eve 2016. The complainant was the main witness for the prosecution. She gave evidence on the first day of trial, detailing a history of domestic abuse at the hands of the appellant, ending with the alleged assault the subject of the charge. Cross-examination by Senior Counsel for the appellant disclosed inconsistencies in the complainant’s evidence. The appellant, who at the time of the alleged assault was recovering from foot surgery, raised the issue of self-defence. When the police attended shortly after the altercation they noted the appellant had a ripped t-shirt. It was common ground that following the complainant’s evidence the prosecution was invited to have discussions with a defence witness before the trial resumed. Prior to the resumption of the trial on the second day the prosecutor withdrew the charge against the appellant. Before the Magistrate the appellant submitted that the prosecution withdrew the charge due to the destruction of the complainant’s credibility in cross-examination. The prosecution denied that allegation and submitted that the decision was made in accordance with prosecutorial guidelines, following both the complainant’s evidence and after the receipt of new evidence at the end of the first day of trial. The appellant applied for an order as to costs in the amount of $54,900. This figure indemnified the appellant for the costs of the proceedings including briefing Senior Counsel, junior counsel and obtaining expert evidence. While the prosecution conceded the appellant’s entitlement to costs, they rejected that the circumstances warranted an award on an indemnity basis. The prosecution submitted that the appellant should be awarded costs of $6,010 ($5,600 plus GST) in accordance with the Scale of Costs (‘the Scale’) under the First Schedule of the Magistrates Court Rules 1992 (Criminal) (‘MCCR’).Legal Principles This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) and is by way of rehearing. As it is an appeal against a discretionary order, error must be identified in one of the circumstances identified by House v The King:[1]The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[2] (Citations omitted) [1] (1936) 55 CLR 499.[2] House v The King (1936) 55 CLR 499, 504-5.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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