Police v Brigg
[2009] QMC 23
•13 August 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Police v Brigg [2009] QMC 23
PARTIES:
POLICE
(prosecution)
v
GLEN CHRISTOPHER BRIGG
(defendant)
FILE NO/S:
MAG153602/08(5)
DIVISION:
Magistrates Courts
PROCEEDING:
Charge, Application for costs
ORIGINATING COURT:
Magistrates Court at Mareeba
DELIVERED ON:
13 August 2009
DELIVERED AT:
Mareeba
HEARING DATE:
13 August 2009
MAGISTRATE:
Braes T
ORDER:
Defendant discharged.
Costs in the sum of, pursuant to the regulations, of $2,500.
CATCHWORDS:
CRIMINAL LAW – ASSAULT – defence of self-defence
CRIMINAL LAW – COSTS – costs against the prosecution on dismissal of charge
Justices Act 1886, s 158A
COUNSEL:
Hafner (Sergeant) for prosecution
Greggery for defendant
SOLICITORS:
Prosecution on own behalf
The defendant Glen Christopher Brigg appears before me charged by way of notice to appear that on 21 February 2008 at Strathmore in the State of Queensland he unlawfully assaulted Earl Lawrence Watson and thereby did him bodily harm. To that charge, the defendant has pleaded not guilty and was represented at the hearing by Mr Greggery of counsel. Sergeant Hafner appeared for the prosecution.
In order for me to find the defendant guilty of the charge, I must be satisfied that all elements of the charge have been proved to the standard required, that being beyond a reasonable doubt. The onus of proving those elements and of negativing any excuse raised to such standard is, of course, upon the prosecution. Should the prosecution fail to prove those elements to the standard required, then I must, of necessity, acquit the defendant of the charge.
The prosecution called three witnesses whilst the defendant called two witnesses which included the evidence of the defendant. At the conclusion of the evidence I was addressed by Mr Greggery and by Sergeant Hafner. The evidence has been fully recorded and is relatively fresh in our minds and it is not my intention to fully recapulate the evidence here in my decision. However, I will refer to aspects of it.
In making my findings, I will refer to some of the evidence but I wish to point out that I have considered the whole of the evidence presented and because matters have not been stated it does not mean that I have disregarded them or not given them sufficient weight; nor because matters have been mentioned does it follow that I have given them undue weight.
During the course of the trial, I've had the opportunity of listening to and observing the demeanour of each of the witnesses while they gave their evidence. On the evidence before me there is no contest as to the time, date and place or that the defendant struck or applied force to the complainant. What is in contest is whether that application of force amounts to an assault and, if so, whether the defendant did bodily harm to the complainant.
Bodily harm means injury which interferes with health or comfort. I don't believe that there are any submissions before me to the effect that the injuries suffered by the complainant would not amount to bodily harm. I find that the injuries suffered by the complainant would amount to bodily harm.
To find the defendant guilty, the prosecution must prove that the defendant assaulted the complainant. Any person who strikes, touches or moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without the person's consent is said to assault that other person and that the assault was unlawful; that is, not authorised, justified or excused by law.
Senior Constable Attwood gave evidence today. His involvement as a police officer at Georgetown was rather minor. He went to the station, he took a statement from the complainant, he took some photographs and really had no other relevant involvement.
Mr Watson, the complainant, now aged 75, I believe, and at the time aged 74, was residing at Strathmore Station with his wife Barbara. He was involved in rebuilding a couple of machines and planning the execution of some earth works on the station. He had known the defendant for some considerable time before this but he never knew what the defendant's position at Strathmore was.
He said that he had been told the defendant would be organising "our workforce," that it was not important on what he was doing and that he should just go on with his work. It is clear that there was a degree of mistrust and uncertainty that had surfaced in the relationship between the complainant and the defendant. This was amplified in the complainant's mind when an advertisement, I think for workers, appeared in the Country Life magazine. As a consequence of that, the complainant had his son-in-law ring for a position and spoke to the defendant. Mr Watson said that - and I'm unsure about this - or perhaps he was unsure about it, that some time in January or February of 2008, he spoke with the defendant but that nothing happened and he just went on with his work. He said he just did his thing.
He then told of how, on Thursday, 21 February 2008, he and Mr Arthy were working in the tractor shed when the defendant turned up on a motorbike. The defendant came over and started to be abusing. He called them smart bastards, that they'd had their fun and games and told them to get off the place immediately.
The complainant says that he questioned the defendant's authority to be able to tell him this; that they then had a few words and he asked the defendant why. The defendant told him that it was because he was undermining Scott, who I believe to be Scott Harris, said to be the manager and/or part-owner of the property. The complainant asked how this was the case, to which the defendant responded, "By keeping Rhianna informed about what was happening at the station." The complainant denied this.
I don't expect that that evidence is, in fact, a full version of the argument between the two men. The complainant does admit to using the language, "lying mongrel bastard", before he was hit by the defendant. The complainant says that the defendant stepped towards him with his hands up, with a grin on his face. He could see what he was going to do and that was, I presume, going to be hit so he, the complainant, lashed out with his right foot. He didn't know whether he connected with the defendant or not. He doesn't remember anything after that until Neil - Mr Arthy - was holding him up.
The complainant then explains how he fell back and other than for being held up by Mr Arthy would not have been able to stand. He also said that Neil, Mr Arthy, pulled him backwards. Toward the end of his evidence, the Prosecutor asked him specifically whether he had wanted to fight, to which the complainant replied that he never suggested it.
The problem with this evidence is that the complainant admits to having no memory, at least after being hit. His evidence of lashing out with his leg was as a consequence of what Mr Arthy told him, as was the fact that he was only punched the once. His evidence is in conflict with Mr Arthy's evidence in a number of areas. I note also that Mr Arthy, in fact, denies telling the complainant that he was hit once by the defendant and that he had kicked out at the defendant.
Mr Arthy was also working on the station. He said that he was working in the tractor shed. He thought it was about 8 o'clock in the morning when the defendant rode up on his motorbike. He said that the defendant walked around and said nothing for a few minutes and then in a loud voice accused them of having contact with, I think he said Anna, who I presume is Scott Harris's wife and also something about an advertisement put in the paper that he said he knew nothing about.
He further said that the complainant and the defendant got into a heated argument for a few minutes. He was about 20 feet away. A scuffle started between the defendant and the complainant; punches were thrown. He was not sure whether - I think he was not sure about who was throwing the punches. He said the defendant knocked the complainant to the ground. He decided to help the complainant; he was much older and much lighter and he was frightened for his sake. He said he helped him to his feet. He tried to stop the fighting between the two of them and he pushed them apart. Eventually they settled down and he moved back away. Minutes after another argument erupted but there was no fight. The defendant told them they were both sacked and he left.
This version of events shows the complainant being involved in some sort of scuffle prior to being punched to the ground. It is a version of events that is more supportive of the defendant's version than the complainant's.
The defendant gave evidence on his own behalf. He said that he was appointed as manager of the station in November 2007 by Scott Harris. On 21 February 2008 he had a conversation with Mr Harris about terminating the employment of the complainant and Mr Arthy.
I should say that, so far as the defendant is concerned, I observed him to be somewhat lacking in personal skills, both by his demeanour when he gave evidence, in the way that he responded to the Prosecutor on occasions and generally in his justification for terminating the employment of the complainant and Mr Arthy without explanation or reason. He said, "I went to the shed on the motorbike. I stood there and observed what Mr Arthy and the complainant were doing. I asked them to stop, pack their gear and leave the station".
In response the complainant started calling him names. The complainant, he said, proceeded over to him, throwing his hands in the air and kicking at him, mainly kicking him in his right leg. The defendant was wearing shorts, a long shirt and steel-capped T-boots, I think he said. The complainant was wearing steel-capped boots, jeans and a shirt.
The defendant then said that in backing away - he was backing away, thinking that the complainant would stop, but it kept going. He then hit him with right hand on his chin. He remembered Neil coming - that is Mr Arthy coming over to both of them to stop. The complainant fell to the ground. "Mr Arthy ran over and stood between us," that is the two of them; he said to stop the complainant advancing.
So far as being called a "lying mongrel bastard" he said that he had been called worse and that this didn’t particularly phase him at the time. He went on to say that Mr Arthy was standing between them; that an argument broke out about things going on at the station for about five minutes. The matters of interest in the argument, apparently, were to do with the ad in the "Country Life"; the fact that the complainant accused him of feathering his own nest; that he, the defendant, basically didn’t know what was going on around the place; to which the defendant said he said that he should have come and asked him instead of running around behind his back.
It would appear from the evidence of Mr Arthy that he was no longer keeping them apart at this point. There is no suggestion of any further assault by the defendant upon the complainant. The defendant said that he then rode back to the house.
I should point out also, I think, that the defendant said that as the complainant advanced towards him, he slipped backwards and then when he got to the bulldozer, he had to defend himself.
The other evidence was given by Mrs Reynolds. She was working on the station and corroborates that the defendant suffered swelling and redness in the area of his right knee and shin.
Giving consideration to all of the evidence, it is difficult to accept the evidence of the complainant as being an accurate account of what happened. I find that the defendant went to the shed; he told both men they would have to leave; that a verbal argument broke out between the complainant and the defendant.
The complainant, who by his own admission, was angry at being asked to leave, did advance on the defendant and did kick him to the shin; that as a consequence, the defendant punched the complainant to the jaw once, causing him to fall to the ground; that Mr Arthy intervened, assisting the complainant to his feet; that the complainant and defendant continued their verbal abuse of one another and then the defendant left.
I have already explained the elements of the offence and made a finding that the injuries suffered by the complainant would amount to bodily harm. But there are a number of issues of law that are to be considered. Was the application of force, that is the punch by the defendant to the complainant, without the consent of the complainant? Was the defendant acting in self-defence when he struck the complainant? Was the defendant provoked as that term is defined at law into striking the complainant and consideration must be given to the defence of prevention of a repetition of assault.
I believe that it is not necessary for me to decide all of these issues. If I decide one in favour of the defendant then he must be acquitted. Was the defendant's punch to the jaw of the complainant without consent? I refer the parties to the loose-leaf Carter's Criminal Law, page 3075 paragraph 339.20 under the heading of "Assault", where it says, "Where an issue of consent to assault arises on a charge of assault occasioning bodily harm, it is for the tribunal of fact to decide in respect to the assault said to have been consented to whether the degree of violence used in the assault exceeded that to which consent had been given". The reference is then to Leguisner and Carroll [1991] 1 Queensland Report at 206.
Further then, with reference to R v Ferguson [1994] 75 Criminal Reports at 35 where the Queensland Court of Appeal held that "Consent plainly includes a consent that is tacit or implied. What is essential to the concept of assault is that it should take place without consent, whether expressed, tacit or inferred from the circumstances".
The complainant said in response to a question, "Did you want to have a fight" that I never suggested it. So that perhaps wasn’t the most brilliant of answers but that is the answer, I think, that was given. It certainly may be argued that his actions in arguing and kicking the defendant amounted to consent. However, bearing in mind the age difference between the parties, I find that the punch by the defendant to the jaw of the complainant was without the consent of the complainant.
Was the defendant acting in self-defence? If the prosecution can not, to my satisfaction, beyond reasonable doubt, exclude the possibility that the injury occurred in self-defence, as the law defines it, that is the end of the case. The defendant's use of force would be lawful and I should find him not guilty.
The criminal law does not only punish, it protects as well. It does not expect citizens to be unnaturally passive, especially when their safety is threatened by someone else. Sometimes an attacker may come off second best but it does not follow that the one who wins the struggle has committed a crime. The law does not punish someone for reasonably defending himself or herself. The law is drawn in fairly general terms to cover any situation that may arise. Each Court has to apply it to a particular situation according to the facts of a particular case. No two cases are exactly the same so the results depend heavily on commonsense and community perceptions.
There are four matters to consider in respect of self-defence. One, there must have been an unlawful assault on the accused. Two, the defendant must not have provoked that assault. Provocation means any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive him the power of self-control and to induce him to assault the person by whom the act or insult is done or offered. Three, the force used by the defendant was reasonably necessary to make effectual defence against the assault and, four, the force used was not intended and was not such as was likely to cause death or grievous bodily harm.
Another way of expressing that is then, that if the prosecution satisfies me, beyond reasonable doubt, that the defendant was not unlawfully assaulted by the complainant; or the defendant gave provocation to the complainant for the assault; or that the force used was more than was necessary to make effectual defence; or that the force used was either intended or was likely to cause death or grievous bodily harm, then the prosecution has proved that the defence does not apply. There is no burden on the defendant to satisfy me that he was acting in self-defence. The prosecution must satisfy me, beyond reasonable doubt, that he was not.
I have already found that the complainant assaulted the defendant. The first leg of the defence of self-defence is made out. Did the defendant provoke the assault? Provocation, as I have just said is defined as any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive the person of the power of self-control and to induce the person to assault the person by whom the act or insult is done or offered.
The assault occurred as a consequence of the termination of the complainant's services and in the manner in which those services were terminated. The defendant's actions, while lacking tact, do not amount to provocation. Was the force used by the defendant reasonably necessary to make effectual defence against the assault?
This and the next part have caused me a fair bit of concern but I find the force used was reasonably necessary to make effectual defence against the assault. I point out that the subsequent argument between the complainant and the defendant did not erupt into further assaults.
Finally, for consideration in respect of this defence is, was the force used - or that the force used was not intended and was not such as was likely to cause death or grievous bodily harm.
As I say, this did cause me some difficulty. No doubt, the assault would not have been intended to cause death or grievous bodily harm. We have, I presume, all heard of the "one punch can kill campaign"; the punch which was delivered on this occasion, in a machinery workshop. It is, of course, as I have said, for the prosecution to satisfy me beyond reasonable doubt in respect of these matters. I am not so satisfied that, in consideration of all of these matters, that the defence of self-defence has been excluded.
For those reasons then, I find the defendant not guilty. He is discharged.
APPLICATION FOR COSTS
Transcript of application for costs
MR GREGGERY: Thank you, your Honour. I have an application for costs in the circumstances. Those costs order simply those pursuant to the scale; there's no application for costs on an indemnity basis.
I understand the scale provides an amount of $1500 for up to and including the first day of the trial. And an amount of $250 per mention. There were nine mentions, but we're only seeking costs for four of those. That is the last four, in all the circumstances. There were negotiations invited by the prosecution in January of this year, which resulted in action taken by my client at the prosecution's request. It then appeared that the prosecution was not going to take the course intimated, and there were a further four mentions, leading to the trial.
BENCH: You'll have to be more specific in relation to your application for costs. The authority which I rely upon is that of Judge White's decision in the matter of Bailey v. White, where he says that the Court, that is this Court, has to give particular consideration to each of the matters set out in section 158A, and as that section says, of course, only if the Justice are satisfied that it is proper that the order for costs should be made. You won't get a order for costs as of course, in this Court, so you will have to address me more fully in respect of it.
MR GREGGERY: Well, the starting point is, of course, that costs follow the event.
BENCH: No they don't.
MR GREGGERY: They're not meant to be punitive.
BENCH: They don't follow the event.
MR GREGGERY: That is the underlying assumption behind that section, in my submission‑‑‑‑‑
BENCH: No it's not.
MR GREGGERY: ‑‑‑‑‑which follows from Latoudis v. Casey.
BENCH: Well, I disagree with you.
MR GREGGERY: If your Honour is against me on that point, they are meant to be compensatory in nature, to the extent that they are just and reasonable as provided for by what is set out in the Justices Act.
BENCH: Mmm-hmm.
MR GREGGERY: On the prosecution material there was plainly a defendable case, there was - and your Honour has found it necessary to decide the two points, which were raised in my submission on the prosecution material; those being provocation and defence - prevention of repetition of an insult. They were, and it was accepted in submissions raised on the prosecution statements, as I've indicated, it wasn't necessary for your Honour to decide that. The course of the matter, up to December last year, as I'm instructed, was that it was progressing towards a trial, until December, when the defence requested that the matter be listed, but the prosecution indicated that that was not appropriate at that stage, there may be some other resolution of the matter.
To that end, and to be specific, the prosecution requested an apology from my client, with an indication that the matter would be discontinued if that was received. The prosecution received the apology from my client and then the matter was not discontinued; it proceeded to trial. And that was sent in the 2nd of February, this year. I can go through the correspondence if your Honour requires me to do that. But perhaps I only need to do so‑‑‑‑‑
BENCH: Well this - what you're talking about would appear to be relevant to some of the matters referred to in section 158A.
MR GREGGERY: Yes.
BENCH: That is the continuing of the prosecution in good faith. The continuing of the prosecution in good faith. They were the proceedings brought and continued in good faith. Now you're tell me that there was some negotiations that went on.
MR GREGGERY: There was
BENCH: That there was an indication the matter would be discontinued upon the receipt of an apology.
MR GREGGERY: Yes.
BENCH: And that was delivered?
MR GREGGERY: It was.
BENCH: I see.
MR GREGGERY: In any event, it seems that prosecution was instituted not at the request of the complainant, but by the position taken by Senior Constable Atwood, on hearing about what had transpired at the shed. That is, it wasn't foremost on the complainant's mind; he went there to sort out the issues involved in extracting his property from the general property of the station.
BENCH: Well, he's a police officer, and somebody comes to him and tells him he's been assaulted, he'd probably be criticised if he didn't act upon that.
MR GREGGERY: Not in my submission. The discretion is a very wide one, whether to charge someone or not. There was no charge until some point in June, well after the statements had been obtained. And it was clear there were issues with the prosecution case.
The - to that extent - the point - to the extent that my client's refusal to participate in an interview is relevant, I am instructed he did that - as the result of legal advice received by him, and that was, in my submission, certainly open to him and didn't result in any unnecessary furtherance of the matter, particularly in light of what transpired in respect of the apology.
One of the recent mentions, and I think it was in June of this year, there was argument about where the venue of the trial was to be. I understand the defendant was successful in his application to have matter moved here. And certainly real costs were incurred in that.
The amount sought, in my submission, is entirely reasonable and‑‑‑‑‑
BENCH: You claimed the amount of - under the regulations, of $1500. And what was the other amount that you were claiming?
MR GREGGERY: I understand there is an allowance of $250 per mention.
BENCH: $1500 after first day; $875 and court attendance other than on the hearing, $250.
MR GREGGERY: Yes. Now there are nine of those. We're only claiming for four. Thank you, your Honour. Those are my submissions.
SGT HAFNER: Your Honour considering the aspect for costs, your Honour would of course - as your Honour has said, consider the aspects of 158A, in the exercise of your discretion to award the costs. Subsection 2 there lists a number of matters, where the proceeding was brought and continued in good faith. There were some discussions and negotiations between my friend, in relation to looking at resolving the matter in a mediatory way, considering the situations and the effects an apology and that sort of thing, might bring about disposal of the matter - if it was dealt with through the mediating process.
I asked the Senior Constable to locate and put those things to the complainant, to see whether there was an aspect where the matter could be properly mediated. Unfortunately the defendant moved in that interim period of time, and for a number of months could not be located. There were also problems at the time that it was‑‑‑‑‑
BENCH: Sorry, the defendant or the complainant?
SGT HAFNER: The complainant - sorry, did I say defendant?
BENCH: Yes.
SGT HAFNER: My apologies. The complainant moved, and during that time it was also the wet season and the senior constable kept me regularly posted with the fact that he had trouble getting to the property, where he believed the complainant to be. And that did elongate a number of adjournments, but after the complainant was located at - he wasn't at the address he was at, but was later located no longer residing in the area, it was ascertained that a mediation was not a course the complainant wished to conduct.
BENCH: What do you know about the apology being provided - being asked for and provided?
SGT HAFNER: Certainly my friend's office provided - we had discussions with regard to that, and that was provided to our officers, as part of the means of endeavouring to see if the complainant was willing to accept that, and take a mediatory approach with regard to the matter, as opposed to proceeding with the prosecution.
BENCH: I understood Mr Greggery's submission to be a bit more relevant than that, in that it was - there were discussions between your office that there was an agreement that an apology would be given and it would be discontinued. That the apology was given but the matter wasn't discontinued. Now that's - I may have put to high a standard on it, and I may be misquoting Mr Greggery, but that was the way I understood the submission.
SGT HAFNER: Your Honour my view was always upon the fact that that was preparatory seeing if we could negotiate the matter off in a - with a mediatory sense. There was no undertaking by my office that the matter would be withdrawn; I have no authority to give that undertaking. But certainly it was preparatory to the act of endeavouring to have the matter mediated as a basis upon which to approach the complainant to show that he's willing to apologise and mediate the matters away. The complainant wasn't willing to take that course, and that of course is the complainant's right.
Apart from the delays, your Honour, that were caused by the isolation and the isolated area where the officer thought the complainant was, and the unfruitful results from those aspects to orchestrate a mediation to resolve the matter by another means, in my respectful submission the prosecution was brought, and it was continued in good faith. There is a high expectation of the community, your Honour, that when criminal complaints are made - an assault made against senior persons, and particularly in a workplace environment - that the prosecution look at pursuing those things and ensuring that reasonable community standards on those sorts of things are met.
Subsection (C) During the investigation the offence was conducted in an appropriate way. It was conducted in an appropriate way. (D) Whether the dismissal was made on technical grounds, and on a finding insufficient evidence to convict - your Honour there were some conflicts with regard to the evidence between the two screaming witnesses in the matter. It's not for my office, in my respectful submission, in considering submissions, to make rulings on issues of credit with witnesses. That arena is properly left for the Courts. And your Honour's decision at the end of the day comes down to a divining of credit, and that credit - the effect that that credit had on the findings, and on that particular aspect the issue of self defence has raised.
(E) is not relevant, in my respectful submission. (F) is when the defendant reasonably declined the opportunity before a charge was laid to explain the defendant's version of the events, adduce any evidence. Perhaps the evidence of the injury to him, and other material would have made some difference in relation to the senior constable's investigation. And subsection (F) - there's no issue in (G) or (H) that I would take, and (I) is not relevant, either.
In my respectful submission, your Honour, there were delays in this matter, but they weren't delays - they were delays in endeavouring to resolve the matters, not prolonging the matters unnecessarily. Unfortunately in remote areas, particularly during Wet seasons, there are issues of inability to get to places and make contact with persons, which did drag it out longer than in a usual matter.
In pursuing the matters under 158(A) that a relevant - and it's my respectful submission that the costs of it might be awarded.
Decision on application for costs
I have before me an application for costs pursuant to section 158 and 158A of the Justices Act. I will, as is my normal procedure, refer extensively to the decision of Judge White, which is Appeal 43 of [1994] in the District Court at Cairns in the matter of Bailey v. White. He said,
"Subsection 158A(2) sets out a non-exhaustive list of factors which are to be taken into account in the exercise of the discretion it provides. In deciding whether it is proper to make the order for costs the Justices must take into account all relevant circumstances, including, for example‑‑‑‑‑", and then there is a number of matters which are referred to.
"Counsel for the respondent reminds me that this is the exercise of a discretion; the exercise of the discretion in this case is somewhat unusual in that there is a statutory obligation on the Magistrates Court to consider all relevant circumstances, and particularly to consider all of the circumstances set out in the list. The general discretion given to Justices, pursuant to the Justices Act, to make an order for costs, arises out of section 158A(1), which provides as follows, 'When Justices, instead of convicting or making an order to dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.'
Until fairly recently the exercise of the discretion provided by the subsection in favour of the defendant occurred relatively rarely. This was particularly so when the complainant was a police officer or public officer, charged with a public duty. However, such an approach was expressly rejected by the High Court of Australia in Latoudis v. Casey. The majority in that case established the following propositions, 'Neither a civil nor criminal proceeding are costs awarded as punishment of the unsuccessful party. Costs are awarded to compensate the successful party for the expense of having the proceedings imposed on him. Ordinarily a Court of summary jurisdiction, in exercising a statutory discretion to award costs in criminal proceedings, will make an order for costs in favour of a successful defendant. No distinction was to be made between complainant's who are public officials and those who are private persons.'
Arguments which are often advanced, particularly in Queensland cases, that police and public officers might be deterred from prosecuting cases for fear of incurring costs, and that legal aid was available to a defendant in any particular case, were irrelevant to the exercise of the discretion. Prior to the decision of the High Court, in Latoudis, there appeared to be, particularly in Magistrates Courts in Queensland, a prevailing attitude that a successful defendant, to obtain an order for costs against a complainant who was a police officer, or public officer, it was necessary to show some degree of fault or blame on the part of the complainant in bringing the charge against the defendant. It is obvious that this decision of Latoudis rejects this view entirely in favour of a view that costs will generally follow the event. That is, once the defendant is successful, he should be compensated for his costs.
It is clear that section 158A was inserted into the Justices Act as a reaction to the judgment of the High Court in Latoudis. In my view the primary effect of section 158A in overcoming the effect of the judgment in Latoudis, is to defeat the rule that costs will normally follow the event, in criminal proceedings, when a defendant is successful against a complainant, who is a police officer or public officer.
The new section 158A does not, in any way, modify the statement that neither in civil nor in criminal proceedings are costs awarded in punishment of the unsuccessful party, or costs awarded to compensate the successful party for the expense of having proceedings imposed on him.
Further, the express rejection of the arguments concerning discouragement of police and public officers which might arise if costs are awarded against them, clearly still stands.
Subsection 158A(1) modifies the rule that costs would normally follow the event, by placing the burden of satisfying the Justices upon the applicant for costs, that is, the Justices must be satisfied that it is proper that an order for costs should be made. However this cannot and must not be interpreted as in some way placing an onus upon a successful defendant to demonstrate that there has been some bad faith or fault or blame on the part of the complainant in bringing the prosecution before he is entitled to recover his costs.
Obviously by reason of some of the express factors referred to in 158A(2), these are matters which might be taken into account; but it is not essential that the exist. It is equally clear from some of those express factors, that the conduct of the defendant himself, in the way he has conducted his case, may equally be relevant to whether or not an order for costs is made.
In any particular case, some of the express factors set out in 158A(2), may be more relevant than others, but that depends upon the facts of that particular case. So far as the principle is concerned, there is no justification for giving any of those factors any more weight than any others. Until the relevance of any particular factor emerges in any particular case, they are entitled to equal weight. I am also of the view that in any particular case they may be factors relevant to the question, but whether it is proper that an order for costs be made, which are not expressly mentioned at all, in section 158A(2), but which are deserving of equal weight or even more weight than some of the specific factors referred to because of the circumstances which arise in the particular case.
Because a Magistrate is compelled to take account of all specific factors mentioned in 158A(2), I have come to the view it is desirable, upon the hearing of an application, that a Magistrate make specific mention of all such express factors, no matter how briefly, even if he considers that one of those express factors is not particularly relevant in the particular case under his consideration, he may say so as briefly as the case may allow." End of quote of Judge White.
So, looking at these factors, and determining whether or not the applicant for costs has satisfied me that it is proper that an order should be made.
The first one is whether the proceedings were brought and continued in good faith. As I've indicated, Senior Constable Atwood, received information from the complainant about the assault. The complainant certainly did not go there to complain about the assault, but then the matter came to the attention of the senior constable.
I think, in those circumstances, the senior constable had a duty to look into the matter and, in fact, I could imagine a circumstance where, if he had not, that he could then be the subject of an inquiry himself as to why he did not take some action upon the matter. I think, in giving consideration to that matter, I would weigh that, not neutrally, but perhaps in favour of the complainant.
The second one is whether there was a failure to take appropriate steps to investigate a matter coming to or within the knowledge of a person responsible for bringing or continuing the proceeding.
There is this question that Mr Greggery has raised about the apology. I understood his submission to be that there was negotiation or discussion between the prosecution and the defence and that it was agreed that there be an apology tendered by the defendant and, as a consequence of that, the prosecution would discontinue. Acting upon that or in performance of that agreement the defendant provided that apology.
Sergeant Hafner says that there was no such arrangement and that the giving of an apology was a preparatory matter to bringing the matter on to some sort of mediation. Given the difficulties with locating the complainant and, as explained by the prosecutor, the mediation was apparently thought to be not an acceptable manner of resolving the matter and that did not continue.
It concerns me, though, that solicitors, lawyers would think that in a criminal matter apology could be provided as a preparatory matter to something. The whole issue is a bit unclear to me, and the reasons why the matter didn’t resolve I'm not completely sure about; that the mediation didn’t continue, whether that it was as a consequence of the complainant's attitude to the matter or just the difficulties of distance and locating the complainant.
In deciding that matter, and giving consideration to it, I would decide that and weigh that in favour of the defendant. (c) is "whether the investigation defence was conducted in an appropriate way." I don’t think there is anything before me to indicate that the investigation was conducted in an inappropriate way. The investigation was quite straightforward. I would weigh that matter, I think, towards the complainant/prosecution.
Subsection (d) "whether the order for dismissal was made on technical grounds and not on the finding that there was insufficient evidence to convict." The Prosecutor submitted, I think, that that was irrelevant. It's probably arguable that the matters raised on the material as a defence are technical.
At the end of the day, the decision that I made was based on my findings of fact where I ultimately accepted the version given by the defendant. I think that, in consideration of that item, I would find that to be a neutral consideration between the parties.
(e) is "whether the defendant brought suspicion on himself or herself by conduct engaged in after the events, constituting the commission of the offence." Well, there's nothing in the material, I think, to suggest that the defendant had conducted himself in such a manner. Whether it's appropriate to actually decide that in favour of the defendant or to give it a neutral finding I'm not sure but I think, giving that consideration, I would find that in the defendant's favour.
(f) is "whether the defendant unreasonably declined an opportunity before the charge was laid to explain his version of events or to produce evidence." Now, of course, the defendant had the benefit of legal advice and declined to be interviewed. Unfortunately, I'm not familiar with what happened, what negotiations, correspondence took place between the parties. Sergeant Hafner gave an indication or a submission, I think, to the effect that if the defendant had brought to the attention of the prosecuting authority the issue of the injury that he suffered to his leg, that that may well have had some bearing on the matter. I can only assume from that, that that was never raised in the correspondence.
I don’t think the defendant's action could be regarded as being unreasonable in declining, before the charge was laid, to explain his version of events. He had no obligation to do so. He was entitled to be represented and he took that opportunity of not making a statement to the police officer.
Item (g) is not relevant at all.
(h) is, "whether the defendant conducted the defence in a way that prolonged the proceedings unreasonably." There's no suggestion, that I'm aware of, that that happened. I wouldn’t find against the defendant in respect of that and it's probably a matter which could resolve neutrally.
And (i), "whether he was acquitted of a charge and convicted of another" is not relevant.
At the end of the day it is still a very close decision even after giving consideration to those matters set out in the section.
At the end of the day I did find in favour of the defendant's version of events that his version of his events were more likely to be a true recollection of what happened at the time, and, of course, I base that finding on the evidence also of Mr Arthy.
The defendant has had the proceedings imposed upon him. He has been successful. I have listened to the submissions of Mr Greggery for the defendant and Sergeant Hafner for the prosecution.
Weighing up all of the factors, as I say, it is a close call. But I think the overall balance tips the scales in favour of the defendant and he should have his costs, not as a punishment to the complainant, but as compensation for the costs incurred by him.
I make an order for costs in the sum of, pursuant to the regulations, of $2,500.
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