Paul Richard Ling v SA Police No. SCGRG 95/2624 Judgment No. 5856 Number of Pages 19 Procedure

[1996] SASC 5856

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA DOYLE CJ, PRIOR AND NYLAND JJ

CWDS
Procedure - costs - appeals as to costs - appeal by defendant against finding of Magistrate in relation to costs - amount awarded to defendant reduced due to failure to disclose evidence of two witnesses before trial - evidence of witnesses central to failure of prosecution to prove offence - Magistrates Court Rules - Rule 26 - Did not infringe right to silence - defence not obliged to disclose case - Rule 26 operates in context of right to silence rather than abrogating it - case management rules not inconsistent - r26 valid - failure by appellant to disclose evidence of witnesses not a breach of r26, therefore r26.04 not applicable. Summary Procedure Act (1991) - Section 189(1) - discretion in relation to costs - invocation of right to silence irrelevant, but defendant's conduct relevant to question of reasonableness - unnecessary expense or prolonging of proceedings a consideration even though conduct is an exercise of right to silence - appropriate to refuse full award of costs - appeal dismissed.Magistrates Court Act (1991) - Section 49(1)(c) - mutual obligation of disclosure - power to make procedural rules does not enable court to entrench upon fundamental rights - power relates only to civil proceedings. Magistrates Court Rules 1992 Rule 26; Magistrates Court Act 1991s49(1)(c); Summary Procedure Act 1921 s189(1); Supreme Court Rules 1992 ; District Court Rules 1992 , referred to. Petty v The Queen (1991) 173 CLR 95; Rona v District Court of South Australia (1995) 64 SASR 223; Taylor v Guttilla (1992) 59 SASR 361; Latoudis v Casey (1990) 170 CLR 534, applied. Police v Leonard (1995) 64 SASR 390, not followed. R v Dainer ex parte Milevitch (1988) 91 FLR 33, discussed. Bropho v Western Australia
(1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Hamdorf v Riddle [1971] SASR 398; Schaftenaar v Samuels (1975) 11 SASR 266; McEwen v Siely (1973) 21 FLR 131, considered.

HRNG ADELAIDE, 10 October 1996 #DATE 14:11:1996

Counsel for appellant:     Mr T A Gray QC With Mr J D Edwardson

Solicitors for appellant:    Jon Lister

Counsel for respondent:     Mr B Selway QC With Mr M Grant

Solicitors for respondent: Crown Solicitor (SA)

Counsel for other Party LAW SOCIETY OF SOUTH AUSTRALIA (AMICUS CURIAE):
   MR J SULAN QC

ORDER

JUDGE1 Doyle CJ
1. This appeal is brought by leave. The appellant was the defendant to a complaint heard by the Magistrates Court, which complaint charged the appellant with certain summary offences.

2. The Magistrate found the defendant not guilty and dismissed the complaint. The Magistrate awarded costs to the defendant. The defendant appealed, claiming that in arriving at the amount of costs the Magistrate had made an error of principle. That appeal was dismissed by a judge of this Court who found that there was no error of principle in the manner in which the Magistrate exercised the discretion in relation to costs. Because the appeal raised an important question of principle, the judge gave leave to the defendant to appeal to this Court.

3. The reasons of the Magistrate indicate that he awarded less to the defendant by way of costs than he otherwise would have ordered because the defendant failed to disclose to the prosecution before the trial that it had in its possession statements from two independent witnesses. The evidence of those witnesses at the trial of the complaint was central to the failure of the prosecution to prove the offence. The Magistrate said that the disclosure to the prosecution of the evidence to be given by those witnesses might well have led to the withdrawal of the prosecution case. Rule 26 of the Magistrates Court Rules relevantly provides as follows:
    Ò26.01 Prior to any matter being listed for summary trial the
    parties must have ascertained the precise matters in issue
    both as to fact (in detail) and law as to:
    (a) fully explore the possibility of disposing of the charge
    other than by way of trial;
    (b) enable the duration of the hearing to be estimated as
    accurately as possible:
    (c) determine what evidence if any may be proved by affidavit;
    (d) facilitate the course of the trial,     and shall inform
    the court as to each of the above.

26.02 To the extent necessary to comply with this rule the
    parties must confer fully and frankly.

26.03 Prior to a matter being set down for hearing the defence
    must give notice to the prosecution if evidence of alibi may
    be called. The notice must give details of the proposed
    evidence including the name and address of the witnesses.

26.04 Insufficient compliance with this rule must be taken
    into account on the question of costs.

26.05 To ensure compliance with r8 and this rule the court may
    on notice to the parties require that they attend a pretrial
    conference.Ó

4. The Magistrate said that while r26 did not exclude the defendantÕs right of silence, and the defendant could choose to remain silent, a defendant who did so ran the risk that the ability to recover costs might be at risk.

5. It appears from this that the Magistrate took the view that r26 did not compel disclosure by the defence of the evidence available to it, but that the failure to do so would, pursuant to r26.04, be taken into account on the question of costs. That is what the Magistrate did.

6. On appeal the defendant argued that r26 is invalid. It was argued that r26 infringes the right of silence to the extent that it imposes an obligation upon the defence to disclose the defence case before trial, including the disclosure of witness statements. It was argued that r26 was beyond any rule making power vested in the Magistrates Court. In support of this submission it was argued that the right of silence is a fundamental common law right, can be displaced only by clear statutory language, and that the relevant provisions of the Magistrates Court Act did not authorise the making of a rule such as r26. It was also argued by the defendant that quite apart from r26 the court could not, in the exercise of its discretion to award costs, take into account conduct by the defence which was no more than an exercise of the right of silence. On this basis it was argued that the decision of the Magistrate could not be supported by reference to r26, nor could it be supported independently of r26.The right of silence

7. It is clear that the right of silence is a central aspect of criminal procedure under the common law. The scope and incidents of that right are not so clear.

8. In Petty v The Queen (1991) 173 CLR 95 Mason CJ, Dean, Toohey and McHugh JJ had this to say about the right of silence:
    ÒA person who believes on reasonable grounds that he or she is
    suspected of having been a party to an offence is entitled to
    remain silent when questioned or asked to supply information
    by any person in authority about the occurrence of an offence,
    the identity of the participants and the roles which they
    played. That is a fundamental rule of the common law which,
    subject to some specific statutory modifications, is applied
    in the administration of the criminal law in this country. An
    incident of that right of silence is that no adverse inference
    can be drawn against an accused person by reason of his or her
    failure to answer such questions or to provide such
    information. To draw such an adverse inference would be to
    erode the right of silence or to render it valueless.Ó

9. For present purposes this passage from that judgment sufficiently states the nature and scope of the rule and its fundamental nature. Their Honours there indicate that the usual operation of the right has two aspects. First, there is no power at common law to compel disclosure of information by a person suspected of having been a party to an offence or charged with an offence. Secondly, in the course of the trial of such a person the prosecution may not ordinarily rely upon the silence of the accused person, during the investigation of the offence or during the trial, in proof of guilt of the accused person.

10. It is clear that the right of silence is closely linked to the privilege against self incrimination and to the fundamental principle that the prosecution must prove guilt beyond reasonable doubt.

11. The manner in which the right of silence, and the obligation of the prosecution to prove its case beyond reasonable doubt, are linked and underpin our concept of the criminal trial is brought out by the following passage from the judgment of Brennan J in Petty v The Queen
(1991) 173 CLR 95, a passage which despite its length it is worth setting out in full:
    ÒA criminal trial is the prime example of an adversarial
    proceeding. Its adversarial character is substantially
    unrelieved by pre-trial procedures designed to limit the
    issues of fact in genuine dispute between the Crown and an
    accused. The issues for trial are ascertained by reference to
    the indictment and the plea and, subject to statute, the Crown
    has no right to notice of the issues which an accused proposes
    actively to contest. The Crown bears the onus of proving the
    guilt of an accused on every issue apart from insanity and
    statutory exceptions. The Crown must present the whole of its
    case foreseeing, so far as it reasonably can, any ÔdefenceÕ
    which an accused might raise, for the Crown will not be
    permitted, generally speaking, to adduce further evidence in
    rebuttal on any issue on which it bears the onus of proof Shaw
v The Queen (1952) 85 CLR 365, at pp379-380. The Crown
    obtains no assistance in discharging that onus by pointing to
    some omission on the part of an accused to facilitate the
    presentation of the CrownÕs case or to some difficulty
    encountered by the Crown in adducing rebuttal evidence which
    an accused could have alleviated by earlier notice. Even where
    an accused proposes to raise an alibi, there is no common law
    duty to give the Crown notice of the alibi. It was necessary
    to legislate to require notice of an alibi to be given to the
    Crown before trial, although a failure to give notice of an
    alibi might result in the Crown being permitted to call
    evidence in rebuttal if the alibi is first set up during the
defence case Killick v The Queen (1981) 147 CLR 565, at pp569-
    570. In a criminal trial, an accused is entitled to put the
    Crown to proof of any issue the onus of which rests on the
    Crown without giving prior notice of the ground on which he
    intends to contest the issue. If the ground be some matter of
    fact, an accused is entitled to abstain from giving notice of
    the ground until a witness is called during the trial to whom
    the matter of fact can and should be put.Ó

12. A little later (at 111) Brennan J said:
    ÒNevertheless, the right of an accused to refrain from
    disclosing his defence until an appropriate stage of the
    trial, the scope of the right of silence and an accusedÕs
    freedom to abstain, without prejudice to the conduct of his
    defence, from cross-examining a witness on committal
    proceedings are questions of such importance to criminal
    practice and procedure that special leave must be
    granted ...Ó

13. I consider that no further authority is needed to show that the right of silence is a central part of our criminal procedure and a fundamental rule of the common law.

14. That being so, the right of silence attracts the principle of statutory interpretation that legislation will not be interpreted as abrogating a fundamental common law principle unless the intention to do so is clearly manifested. Clear and unambiguous words are required before a statutory provision will be construed as displaying an intent to displace a fundamental common law rule, although of course one cannot rule out the possibility of an implication so clear as to satisfy the requirement for a clear expression of intention. These propositions are sufficiently established by Bropho v Western Australia (1990) 171 CLR 1 at 16-18 and by Coco v The Queen (1994) 179 CLR 427 at 436-437 and at 446.Rule 26

15. It is necessary to approach the construction of r26 bearing these principles in mind.

16. That being so, it is my opinion that r26 is not to be interpreted as requiring that before a matter is listed for trial, or indeed at any time, the defence disclose its case, nor as requiring that the defence disclose whether evidence will be called and if so from whom and what that evidence is.

17. I reach that conclusion despite the imperative language used in r26 and despite the reference in r26.05 to r8 which deals with case flow management. Rule 8.04 in particular provides that in the interests of case flow management Òparties must fully comply with r26.Ó To read r26 as requiring disclosure by the defence of the defence case would produce a startling change in criminal procedure. To make this point one need only point out that if the defence must disclose the fact that witnesses will be called for the defence, and what those witnesses will say, there is no reason why that same obligation should not embrace the defendantÕs own proof of evidence.

18. At a first glance r26 is so expressed as to suggest that it does require such disclosure, but in my opinion it is clear upon reflection that r26 must be interpreted as operating in the context of the right of silence, and not as displacing it. It certainly does not displace the right of silence in express terms, and in my opinion there is no necessary implication from its nature and terms that it does so.

19. The right of silence does not prevent sensible discussion between the prosecution and the defence about the possibility of a plea of guilty or of the withdrawal of a charge, about the likely length of a case (the defence can indicate the likely length of a case if witnesses are called, without descending to further detail), about non-contentious evidence, and generally about the efficient conduct of the trial. The Supreme Court Criminal Rules 1992 contain rules which are directed to case flow management, and have a similar purpose to the relevant Magistrates Court Rules. So do the District Court Rules 1992. It is not necessary to set out any of the relevant rules. But it is clear that none of those rules attempt to do away with or to infringe upon the right of silence, and that they are drawn on the basis that they are to operate within the context of that right.

20. The Rules of all three courts reflect a new emphasis, found also in the Rules of many other courts, upon case flow management and upon the obligation of parties to assist the court in the just and efficient determination of the business before it. Courts today accept a responsibility not simply for the just determination of a criminal trial in accordance with traditional criminal procedure, but also for the prompt and efficient disposition of the business of the criminal courts. But while the Rules of the Courts of this State require the co-operation of the parties to that end, they do not, as I understand them, infringe upon the fundamental right of silence.

21. In Rona v District Court of South Australia (1995) 64 SASR 223 King CJ (at 227) referred to case management rules as being Ò.....essential equipment for courts exercising criminal jurisdiction, just as they are for courts exercising civil jurisdiction.Ó But there is nothing in what he said there, nor in other cases to which he referred, which in my opinion supports the view that the common law right of silence is inconsistent with the procedure for case flow management established by the Supreme Court Rules. That reinforces my view that r26 of the Magistrates Court Rules can operate sensibly in the context of, rather than in the absence of, the right of silence.

22. Accordingly, I approach r26 on the basis that it is to be so read.Validity of r26

23. So interpreted, in my opinion, r26 is valid.

24. It is a rule of a type commonly made by courts in the exercise of the rule making power to regulate the practice and procedure of the court. Section 49(1)(c) of the Magistrates Court Act (1991) confers such a rule making power upon the Magistrates Court, and that provision is a sufficient basis for the validity of r26.

25. If r26 were to be construed as abrogating the right of silence it would, in my opinion, be invalid as being beyond the rule-making power conferred upon the court. It would not accord with general principle to interpret a power to make rules regulating practice and procedure as empowering a Rule of Court which abrogated a fundamental common law right. The relationship between matters of procedure and matters of substantive law is, in our system, a complex one. The regulation of procedure may affect substantive law, and so a procedural rule might be valid although it intrudes into the area of substantive law. But I am of the opinion that a power to make procedural rules does not enable a court to entrench upon fundamental common law rights. This conclusion is consistent with the decision of this Court in Taylor v Guttilla (1992) 59 SASR 361 in which case the Court held beyond the rule-making power a Rule of Court which, in civil proceedings, required the production by a party of a medical report notwithstanding the fact that that report was protected by legal professional privilege.

26. I mention, in passing, that to interpret r26 as requiring disclosure of the defence case would be to deny the availability of legal professional privilege.

27. Section 49(1) of the Magistrates Court Act 1991 further provides that Rules of Court may be made: Ò(ca) Imposing mutual obligations on parties to proceedings in the court to disclose to each other the contents of expertsÕ reports or other material of relevance to the proceedings before the proceedings are brought to trial.Ó

28. It is clear that this rule-making power was conferred upon the Magistrates Court at the same time as a similar power was conferred upon the Supreme Court and the District Court in response to the decision in Taylor v Guttilla (1992) 59 SASR 361 That legislative history goes some way to supporting the conclusion that section 49(1)(ca) supports only the making of rules applicable to the exercise of the civil jurisdiction of the court. In my opinion that tentative conclusion tends to be confirmed by the language of the power. The reference to Òmutual obligationsÓ sits comfortably with civil proceedings, but not with criminal proceedings. And, once again, one must take into account the fact that the language in which the power is conferred is quite general and should not, absent some necessary implication, be read as abrogating fundamental common law rights. One can imply an intention to override legal professional privilege, because if that were not intended the power would be an empty one. But there is no reason to imply an intent to abrogate the right of silence.

29. For all those reasons I conclude that that rule-making power relates only to civil proceedings.

Case flow management and criminal proceedings 30. I have reached these conclusions about the interpretation of r26 and the scope of the rule-making power conferred upon the Magistrates Court in the full realisation that my approach may be seen as inhibiting the contemporary emphasis upon case flow management and the view, which is steadily gaining wider acceptance, that the public interest in the just and efficient disposition of criminal proceedings may require that courts be given significant controls over the conduct of such proceedings.

31. It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that the criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under Rules such as those that exist in South Australia the court has no power to require the defence to disclose the nature and extent of the defence case.

32. The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue. It is an issue which, I believe, will have to be faced by the Courts and by Parliament in due course. I am not to be taken as suggesting that the right of silence should be abolished. I merely observe that whether it should be limited is an important issue. The right is, to my mind, so fundamental that if it is to be removed that can be done only by Parliament or by statutory authority clearly conferred, and should be done only in the light of a careful consideration of the desirability of the limitation of the right of silence and of the extent of any limitation.

33. To my mind it is in accordance with principles of statutory interpretation to hold that the existing rule making powers of the Courts of South Australia do not empower them to make rules which entrench upon the right of silence. It is also consistent with the relationship between the law making powers of Courts and of Parliament to hold that if such a power is to be conferred it must be conferred by Parliament in terms which are quite clear.

Costs order 34. It follows from this that the defence in this case did not fail to comply with r26 of the Magistrates Court Rules by failing to disclose the existence of the relevant witnesses, the intention to call them as witnesses in the case, or the contents of their statements. Whether the defence in some other way failed to comply with the requirement of r26, as interpreted by me, is another matter. I make no comment upon that.

35. In the light of that can the decision of the Magistrate on costs stand?

36. It is clear that the Magistrate was influenced in his decision on costs by the failure of the defence to disclose the witness statements already referred to. It is not clear whether he would have acted as he did even if that non-disclosure was not a breach of r26.

37. The Magistrate also relied upon the decision of Debelle J in Police v Leonard (1995) 64 SASR 390. In that case a complaint was dismissed after the prosecution indicated during the course of its case that no further evidence would be called, and after the defence did not consent to the complaint being withdrawn. The Magistrate awarded costs to the defence. The complainant appealed. The complainant argued that the refusal of the defence to produce for inspection (before it went into evidence) a video tape of the relevant incident, which video tape apparently led to the decision by the prosecution not to continue, was a failure to comply with r8 and r26 of the Magistrates Courts Rules 1992 and should have resulted in a refusal of costs to the defence or the award of a lesser amount. In that case it was conceded by the complainant before Debelle J that r26 did not make any inroad into the right of silence of the defence. The complainant argued that r26 provides a choice, which was described by the judge in the following terms (at 392): ÒThe alternatives which are offered an accused person are, first, to comply fully with the terms of r26 and, if necessary or appropriate, disclose all matters in a defence case and thereby have an entitlement to apply for the whole of the costs incurred. Alternatively, if the accused chooses to remain silent, his ability to recover all or any of his costs might be at risk.Ó Counsel for the defendant did not argue to the contrary and the judge appears to have proceeded on that basis. He ultimately found that the Magistrate had not erred in concluding that there had been sufficient compliance with r26, and accordingly, while Debelle J on appeal reduced the amount of the costs ordered, he proceeded on the basis that there had been no error of principle by the Magistrate.

38. The judge on appeal in the present case appears to have taken the same approach to r26. That is, that it provides a choice. The defence is not obliged by r26 to disclose its case, but is at risk on costs if it fails to do so. In the present case the judge found that there was no error in principle on the part of the Magistrate in taking into account, on the issue of costs, the failure of the defence to disclose the evidence of the relevant witnesses.

39. The result, as it seems to me, is curious. On this approach there is no obligation to comply with r26 by disclosing all matters in the defence case, but under r26.04 failure to do so puts the defence at risk on costs. I do not consider that this can be correct.

40. First of all, if r26 does not require disclosure of the defence case, why should the failure to do so of itself tell against the defence on the question of costs? How can one speak of Òinsufficient complianceÓ in the language of r26.04 if the rule does not require disclosure of the defence case? I do not consider that the approach taken in Police v Leonard (supra), which, I note, was not contested before Debelle J and so not considered by him in any detail, provides a satisfactory solution to the questions which I have posed. Nor do I consider that those questions are answered by treating ÒmustÓ in r26 as not being mandatory but as conferring a discretion. I find it difficult to read ÒmustÓ in that manner in the relevant rules.

41. In my opinion the appropriate conclusion is that which I have already foreshadowed. First, that r26 is to be read as operating within the context of the right of silence and as not infringing it. Secondly, that r26.04 refers to compliance with the rule so understood and so does not refer at all to a failure on the part of the defence to disclose its case. In my opinion r26 should be interpreted as imposing a mandatory requirement, but a requirement which does not extend to the disclosure of the defence case.

42. It follows, in my opinion, that in the present case the Magistrate and the single judge on appeal erred in treating the defendant as being in breach of r26 because of the non-disclosure of the defence case. Each of them took the approach that the exercise of the so- called ÒchoiceÓ to remain silent was a kind of non-compliance with r26 which put the defence at risk on costs. The single judge found that there was no error on the part of the Magistrate. He said that the Magistrate had Òplaced much weight upon what he regarded as an unsatisfactory response by the appellant to the obligations imposed by r26 of the Magistrates Court Rules 1992.Ó It is clear that he was there referring to the failure to disclose the evidence of the relevant witnesses.

43. In my opinion the failure to disclose the evidence of those witnesses was not a breach of, or non-compliance with, the requirements of r26 and accordingly the provisions of r26.04 were not brought into play in this way.

44. It may be that in some other respect there was a non-compliance with r26, but that is something which I am not in a position to decide.

45. It follows, in my opinion, that the Magistrate and the judge on appeal erred. In fairness to each of them I should record that the arguments advanced on appeal to this Court were not advanced in the courts below.

Discretion as to costs 46. By section 189(1) of the Summary Procedure Act 1921 the Magistrates Court has power to award costs. There is no point in remitting the matter for further consideration if the result will be the same upon reconsideration. Section 189(1) provides as follows: ÒSubject to sub-section (2), the Court may award such costs for or against a party to the proceedings as the Court thinks fit.Ó Putting r26 aside, the question arises of whether the Magistrate is entitled, in the exercise of the statutory discretion, to take into account a failure by the defence to disclose the existence of witnesses for the defence and the nature of their evidence. In other words, can the Magistrate take into account conduct such as occurred in the present case? It is clear that the discretion conferred by the section is a wide one. In Hamdorf v Riddle [1971] SASR 398 at 402 this Court said that Magistrates Courts should: Ò.....in a general way, exercise their discretion as to costs in the way in which it is exercised in the trial of a civil action, but without discriminating between the costs of successful complainants and successful defendants at least to any greater extent than the civil courts distinguish between the costs of successful plaintiffs and successful defendants.Ó It is not necessary to explore all aspects of the discretion. But in Schaftenaar v Samuels (1975) 11 SASR 266 at 267, in a judgment often cited with approval, Wells J (at 274) treated as relevant to the exercise of the discretion the fact that the defendant might, by deliberate conduct, have so contributed to the decision to prosecute that Òit would be fair to attribute to him wholly or in part responsibility for the prosecution.Ó

47. It suffices to say for present purposes that while the discretion is a wide one, and while the court must be influenced by the considerations of the justice of the situation, ordinarily a successful defendant could expect to recover costs, but that there may be circumstances in which the successful defendant should be denied costs or should be awarded a lesser sum than would otherwise be recovered.

48. In the present case the appellant argues that it would not be a proper exercise of the discretion for the Magistrate to take into account, adversely to the defence, the fact that the defence had exercised its right of silence prior to trial and during the course of the trial, and had not disclosed the evidence of the witnesses until they were called. It is argued that to take any other approach would be to do no more than pay lip service to the right of silence.

49. In considering the submission it is pertinent to bear in mind that the right of silence has its primary rationale and operation in relation to the proof of guilt. It is equally clear that the question of costs has nothing to do with the primary rationale and operation of the right of silence. On the other hand, to award costs by reference to conduct of the defence in the exercise of the right of silence might, in a sense, seem to erode that right, because it does mean that a defendant who exercises the right to the full may be penalised in costs.

50. The only authority brought to the attention of the court which appears to bear directly upon the point is the decision of the Supreme Court of the Australian Capital Territory in R v Dainer ex parte Milevitch (1988) 91 FLR 33. In that case proceedings were issued against the defendant alleging assaults and malicious injury to a window. In the end the informations were dismissed. Crucial to the success of the defence case was a tape recording of conversations which took place during the relevant incident. This tape recording was made by the defendant at the time of the incident and its existence was not disclosed until raised by counsel for the defence during the course of cross-examination of the informantÕs witnesses. The Magistrate refused to award costs to the defendant, apparently taking the view that if the existence of the tape recording had been disclosed to the police or to the Director of Public Prosecutions the informant may have abandoned the proceedings. The question before the court, on an order nisi for the issue of a writ of certiorari, was whether the Magistrate had erred in law. Miles CJ referred to a decision of the Full Court of the Supreme Court of the Australian Capital Territory in McEwen v Siely (1973) 21 FLR 131. He referred to a portion of the judgment in which the court said (at 136): ÒWe think that generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award him costs.Ó Miles CJ made the point (34) that this was a general rule and not a universal one and should not be applied until all discretionary factors had been duly considered. He went on to conclude, contrary to the submissions advanced for the defendant, that the deliberate making of the tape recording and the deliberate failure to disclose its existence were not factors irrelevant to the question of costs. He said that was so (at 35): Ò.....whether one has regard to the question whether the defendants have by their conduct brought the proceedings upon themselves or whether one has regard to the question whether other considerations make it unjust to award them costs.Ó That case bears a close similarity to the present case. In Latoudis v Casey (1990) 170 CLR 534 the High Court considered the approach to be taken by a court of summary jurisdiction in exercising the statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant. The court proceeded on the basis that there was no significant difference in the various statutory provisions to be found in the States of Australia. It is not necessary to record all that was said by their Honours as to the manner in which the discretion should be exercised. Relevant to the present case Mason CJ said (at 544):
    ÒNevertheless, I am persuaded that, in ordinary circumstances,
    an order for costs should be made in favour of a successful
    defendant. However, there will be cases in which, when regard
    is had to the particular circumstances, it would not be just
    and reasonable to order costs against the prosecutor or to
    order payment of all the defendantÕs costs. If, for example,
    the defendant, by his or her conduct after the events
    constituting the commission of the alleged offence, brought
    the prosecution upon himself or herself, then it would not be
    just and reasonable to award costs against the prosecutor. I
    agree with Toohey J. that, if a defendant has been given an
    opportunity of explaining his or her version of events before
    a charge is laid and declines to take up that opportunity, it
    may be just and reasonable to refuse costs. Likewise, if a
    defendant conducts his or her defence in such a way as to
    prolong the proceedings unreasonably, it would be just and
    reasonable to make an award for a proportion of the
    defendantÕs costs.Ó

51. Toohey J proceeded on the basis that ordinarily a successful defendant should not be out of pocket (565). He went on to say:
    ÒNow in a particular case there may be good reasons connected
    with the prosecution such that it would not be unjust or
    unreasonable that the successful defendant should bear his or
    her own costs or, at any rate, a proportion of them. To
    return to the examples given earlier in this judgment, if a
    defendant has been given the opportunity of explaining his or
    her version of events before a charge is laid and refuses the
    opportunity, and it later appears that an explanation could
    have avoided a prosecution, it may well be just and reasonable
    to refuse costs: see, by way of illustration, Reg. v. Dainer;
Ex parte Milevich (1988) 91 FLR 33. This has nothing to do
    with the right to silence in criminal matters. A defendant or
    prospective defendant is entitled to refuse an explanation to
    the police. But if an explanation is refused, the successful
    defendant can hardly complain if the court refuses an award of
    costs, when an explanation might have avoided the prosecution.
    Again, if the manner in which the defence of a prosecution is
    conducted unreasonably prolongs the proceedings, for instance
    by unnecessary cross-examination, neither justice nor
    reasonableness demands that the successful defendant be
    indemnified, at any rate as to the entirety of the costs
    incurred. These illustrations are in no way exhaustive but
    what they point up is that a refusal of costs to a successful
    defendant will ordinarily be based upon the conduct of the
    defendant in relation to the proceedings brought against him
    or her.Ó

52. McHugh J expressed a similar view. He said (569):
    ÒSpeaking generally, before a court deprives a successful
    defendant in summary proceedings of his or her costs, it will
    be necessary for the informant to establish that the defendant
    unreasonably induced the informant to think that a charge
    could be successfully brought against the defendant or that
    the conduct of the defendant occasioned unnecessary expense in
    the institution or conduct of the proceedings. Cf. Ritter v
Godfrey [1920] 2KB 47, at pp.53, 54-60, 66; Sunday Times
Newspaper Co Ltd v McIntosh Godfrey (1933) 33 SR(NSW) 371, at
p377; Redden v Chapman (1949) 50 SR(NSW) 24, at p.25;
Schaftenaar (1975) 21 FLR 131, at p.136; see also McEwen v
Siely (1972) 21 FLR 131, at p.136. Thus non-disclosure to
    investigatory police of a tape recording later successfully
    used in cross-examination of the informantÕs witnesses may be
    a relevant matter to be taken into account in determining
    whether the defendant should be awarded costs: cf. Reg. v
Dainer; Ex parte Milevitch (1988) 91 FLR 33.Ó

53. The minority (Brennan J and Dawson J) took a different view of the scope of the discretion, and did not find it necessary to deal with this aspect of the case.

54. Although Toohey J is the only one who makes express reference to the right of silence in Latoudis v Casey (supra) or in R v Dainer ex parte Milevitch (1988) 91 FLR 33, I cannot accept that the existence of that right was overlooked by Miles CJ or by the other members of the High Court to whose judgments I have referred. I do not consider that the members of the High Court would have expressed themselves as they did if the conduct of the defence was to be considered on the premise that a refusal or failure to disclose any aspect of the defence case was irrelevant in relation to costs. It is to be noted that both Toohey J and McHugh J expressly referred with approval to R v Dainer ex parte Milevitch (supra).

55. In the light of that, I consider that authority requires me to conclude that in the exercise of its discretion in relation to costs the court can take into account conduct of the defence which has unreasonably prolonged the proceedings (Toohey J at 565) or which has occasioned unnecessary expense in the conduct of the proceedings (McHugh at 569). It follows that in the exercise of the discretion under s189(1) a Magistrate can take into account, if appropriate, the manner in which the defence conducted itself at a pre-trial conference, including a failure to disclose aspects of the defence case. It can do so although that conduct was an exercise of the right of silence. The significance of the conduct will be considered bearing that in mind. But to describe the conduct as an exercise of that right will not insulate the defence from an adverse decision.

56. It is unwise and pointless to attempt to categorise the situations or circumstances in which such conduct will arise, or the consequences which should follow if those circumstances are found to exist.

57. In the present case I put to one side conduct which is such that it could be said that the defence had brought the prosecution upon itself. I do so because here the relevant conduct (or non-disclosure) occurred after the prosecution was instituted. But, consistently with the cases cited, conduct before the prosecution is instituted may be relevant to the discretion on costs, although it is an exercise of the right to silence.

58. As I have said, the discretion has to be exercised upon the basis that the right of silence is a recognised feature of our system of criminal procedure. It would, therefore, be wrong in my opinion to approach the exercise of the discretion on the mechanical basis that in the ordinary course of events the defence should disclose its case to the prosecution and that failure to do so will in the ordinary course of events expose it to the risk of an unfavourable costs order. As I have endeavoured to explain, in my opinion there is no such obligation of disclosure on the part of the defence in our system of criminal procedure. To approach the exercise of the discretion in that mechanical manner would be to ignore the right of silence which the defence has. But, in a particular case, the manner in which the defence is conducted may justify a refusal to award a successful defendant its costs or its full costs, even though the conduct was an exercise of the right of silence.

The Discretion In This Case 59. In my opinion what has to be considered in this case is whether, taking account of the right of silence, and so of the absence of any affirmative duty of disclosure by the defence, it can be said that nevertheless the conduct of the defence is such that it would not be unreasonable or unjust that the successful defendant should bear his own costs or part of them. If a judgment is made that the conduct of the defence was unreasonable or that the proceedings have been unreasonably prolonged, then the fact that the defence did that in the exercise of the right of silence will not avail the defence.

60. It follows that in the present case, in my opinion, the matter to which the Magistrate had regard (non-disclosure of the defence case) was a relevant matter. On the other hand, in my opinion his approach discloses error because it appears to have been an approach that the non-disclosure was a breach of r26 and of itself put the defence at risk on costs. He did not consider whether the non-disclosure was, in the particular circumstances, unreasonable conduct. It may well be that the single judge on appeal took the right approach, notwithstanding his reliance upon the decision in Police v Leonard (supra). He focused more closely upon the question of whether this was a case where it was appropriate to maintain the element of surprise, and whether there was any good reason why the witness statements should not have been disclosed in the context of this particular case. He concluded that there was no good reason for the non-disclosure. However, it is clear that his primary concern was, as it should have been, whether any error on the part of the Magistrate had been disclosed. I am not satisfied that he approached the matter on the correct basis.

61. At the hearing of the appeal the parties invited the Court to exercise the discretion under s189(1) of the Summary Procedure Act 1921. In the interests of avoiding further expense, it is appropriate to act on that invitation. The Magistrate, in dealing with costs, said that before the trial began Òdefence counsel knew every element of the prosecution case, chapter, line and verse.Ó The material before this Court does not disclose precisely what that means, but I take it to mean that the defence had copies of the statements of prosecution witnesses and other documents relevant to the case, or full particulars of their contents, and full particulars of the manner in which the prosecution would put its case. It is equally clear that the defence doubted the good faith of some of the prosecution witnesses. In that context counsel for the defence made what he (in submissions to the Magistrate) described as a Òtactical decisionÓ not to disclose the existence or evidence of two witnesses whom the defence had located. As to that decision to take the prosecution by surprise, the Magistrate remarked that ÒThe tactic was highly successful.Ó But he went on to say that once the defence had pinned the prosecution down by obtaining particulars, it could have produced the statements. That, to me, seems right. The defence was entitled to take the course which it took, but under the circumstances it seems that it had little or nothing to lose and a reasonable prospect of negotiating a withdrawal if it had been more forthcoming. I consider that a more open approach might have avoided the continuation of the prosecution, as the Magistrate appears to have concluded. I accept the MagistrateÕs view, and that of the single judge, that it was not necessary or appropriate to take surprise to the extent that it was taken. In those circumstances it was appropriate to refuse a full award of costs. I therefore conclude that the result reached by the Magistrate was the appropriate one, although I reach it by a different route. The Magistrate is familiar with the amounts usually awarded for costs in the MagistratesÕ Court. I am not inclined to revisit the amounts in issue, and accordingly I would allow his decision to stand. Conclusion It follows from this that Magistrates are, in my opinion, entitled to exercise the discretion under s189(1) of the Summary Procedure Act 1921 by reference to a failure by the defence at a pre- trial conference (or at other times) to make a sensible and appropriate disclosure of its case, as long as the Magistrates do so on the basis explained above. The approach which I have taken to the exercise of the discretion might not have been taken until relatively recent times. But the approach to litigation, civil and criminal, has changed. The courts have accepted that it is their duty to ensure, to the extent they can, that trials (and I now refer to the criminal jurisdiction) be conducted fairly. They have also accepted the duty to exercise their powers in a manner which avoids the waste of the public resources committed to the court system (see Rona v District Court of South Australia (1995) 63 SASR 223 at 227 King CJ) and in a manner which, to that end and as an end in itself, ensures that the parties do not impose unnecessary expense on each other or unnecessarily prolong trials, thereby increasing the cost of the justice which it is the function of the courts to administer. These matters are appropriately taken into account on the question of costs, even though the court cannot directly control (as it should not) the manner in which the parties conduct their case.

JUDGE2 PRIOR J
62. I would dismiss this appeal.

63. I agree with the Chief Justice that (ca) of s49(1) of the Magistrates Court Act, 1991 could not be construed as a source of power to abrogate the right of silence. Nor indeed could either (c) or (e) of that subsection. In my view the rule is a valid exercise of the rule-making powers in pars(c) and (e) of s49(1). The rule cannot and does not displace the right of silence.

64. I do not consider that it is an abrogation of the right of silence to provide by a rule of court that the exercise of a discretion as to costs may take account of a failure to disclose a personÕs case after proceedings have been instituted and in the course of pre-trial procedures.

65. In my view, r26 does not displace the right of silence as that right is explained in authorities such as Petty v R (1991) 173 CLR 95. Rule 26 is nothing more than a rule with respect to costs in the Magistrates Court. That is confirmed by the alibi provisions in r26.03 and the absence of a reference to summary matters in s285C of the Criminal Law Consolidation Act, 1935. The rule calls for a failure to respond to a requirement or opportunity to answer or respond to any charge to Òbe taken into account on the question of costsÓ.

66. It follows that I agree with the submission put before Debelle J in SA Police v Leonard (1995) 64 SASR 390 at 392. ÒThe alternatives which are offered an accused person are, first, to comply fully with the terms of r26 and, if necessary or appropriate, disclose all matters in a defence case and thereby have an entitlement to apply for the whole of the costs incurred. Alternatively, if the accused chooses to remain silent, his ability to recover all or any of his costs might be at risk.Ó In this matter, Perry J took the same view. I agree with him that r26 provides a choice. The defence is not obliged to disclose its case but is at risk on costs if it fails to do so.

67. I agree with the Chief Justice that R v Dainer ex parte Milevitch
(1988) 91 FLR 33 is a case bearing a close similarity to this one. It has been referred to with approval in Latoudis v Casey (1990) 170 CLR
534. In Latoudis Mason CJ said that he agreed with Toohey J that if a defendant has been given an opportunity of explaining his or her version of events before a charge is laid and declines to take up that opportunity, it may be just and reasonable to refuse costs (at 544). Toohey J makes plain that the right of silence has nothing to do with the exercise of a discretion as to costs (at 565). That is the basis upon which I find r26 a valid exercise of the rule-making power as to costs and not an intrusion upon the right of silence. Whilst Mason CJ and Toohey J spoke only of the costs discretion arising in a situation before the laying of charges, it seems to me that it follows even more strongly that if a person summonsed before a court is given an opportunity to explain his or her version of events before the summary trial and that person declines to do so, it may well be just and reasonable to refuse costs or refuse to order full costs. In some cases a defendantÕs failure to disclose matters before trial may be considered just and reasonable with an order for costs being awarded. Factors going to the exercise of the discretion could be many and varied (see also Hamdorf v Riddle (1971) SASR 398 at 402 and Schaftenaar v Samuels (1975) 11 SASR 266.

68. There was no error in the exercise of the magistrateÕs discretion here of which the appellant could complain. Indeed, in light of a less than favourable credibility finding of the appellant, it could be said that the award of costs was, if not erroneous, generous. The undisclosed witnesses could not assist the appellantÕs case on two of the counts before the court. As to the one count with respect to which their evidence related, their evidence was not a complete answer to that charge. Besides that, the award sought by the appellant was manifestly disproportionate to the nature of the offences with which he had been charged. I see no substantial injustice resulting from the award actually made. Upon that basis the appeal should also fail (see Debelle J in Leonard (1995) 64 SASR 390 at 394 and 395).

JUDGE3 NYLAND J
69. I have had the advantage of reading the draft reasons for judgment of the Chief Justice. For the reasons he has expressed I also agree that the magistrate and the judge on appeal erred in treating the appellant as being in breach of Magistrates Court Rules 26 by reason of the failure to disclose the defence case.

70. The pre-trial conference is, however, an integral part of the Case Management Rules which are Ònow essential equipment for courts exercising criminal jurisdiction just as they are for courts exercising civil jurisdictionÓ (see Rona v District Court of South Australia (1995) 63 SASR 223 at 227 per King CJ.

71. Frank discussion between prosecution and defence at such a conference is to be encouraged. I therefore agree with the Chief Justice that where it appears that information has been unreasonably withheld or the proceedings have been unreasonably prolonged as a result of such a non-disclosure, it is appropriate for those matters to be taken into account in considering the issue of costs, notwithstanding that the non-disclosure was as a result of the defendant client exercising his right to silence. I concur with the orders proposed by the Chief Justice.