Police v Brymer and Taylor No. Scgrg-00-10, Scgrg-00-20

[2000] SASC 257

POLICE  v  BRYMER & TAYLOR
[2000] SASC 257

Magistrates Appeal

1................ DUGGAN J....... The respondents were charged with assaulting two off-duty police officers in Hindley Street on 26 September 1998.  They pleaded not guilty and, prior to trial, the Magistrates Court was asked to grant a permanent stay of the proceedings on the basis that video evidence of the incident had been destroyed.  It was submitted that the respondents could not receive a fair trial in view of the loss of this potential exhibit.

1. The learned magistrate heard evidence on this issue and determined that a decision had been made at Police Security Services to destroy video footage taken by a security camera in the vicinity of the alleged offences.  It was destroyed on the basis that, in the assessment of those responsible for the record, it contained nothing of value to the investigation.  It was the view of the magistrate that the video tape may have been relevant to certain issues in the case and that its destruction put out of the reach of the defendants a possibly significant piece of evidence which might have affected the result.

2. In these circumstances the learned magistrate permanently stayed the proceedings.

3. The appellant prosecutor initiated an appeal but subsequently filed a notice of discontinuance.  The notice was filed before the hearing of the appeal following an acceptance by the appellant that there was no jurisdiction to appeal from the decision of the learned magistrate.

4. There is no dispute that the respondents are entitled to costs.  However they have argued that costs should be awarded on an indemnity basis.

5. According to the ordinary rule, costs are awarded to the successful litigant on a party and party basis.  Usually, costs are not awarded on an indemnity basis unless the circumstances of the court warrant departure from the usual course.  (Colgate Palmolive Co. & Anor v Cussons Pty Ltd (1993) 118 ALR 248.)

6. The respondents argued that indemnity costs were appropriate by reason of the fact that:

7. the appeal was incompetent by its very nature;

8. the appeal was unlikely to succeed on the merits;

9. the appeal exposed the respondents to double jeopardy;

10. the appellants may seek judicial review which would expose the respondents to further costs.

11. The realisation that the appeal was incompetent led to the decision to file the notice of discontinuance.  In my view the acknowledgment that it could not succeed and the decision, prior to the hearing, to file the notice of discontinuance are not factors which should remove the matter from the usual order as to costs and place it in a special category.  The fact that the appeal was abandoned on jurisdictional grounds renders it inappropriate to decide whether it was likely to succeed on its merits.  No concession is made as to merits and it would be a fruitless enquiry to embark upon that issue for the purposes of deciding whether indemnity costs were appropriate.  The argument that the appeal exposed the respondents to double jeopardy does not take it out of the usual course of appeals.  As to the final ground, any further proceedings taken by the appellant must depend on their own merits and it is inappropriate to speculate as to whether such proceedings will be commenced and, if so, their likely result.

12. For these reasons I am of the view that indemnity costs are inappropriate.

13. There has been argument as to the quantum of costs.  I have been referred to the case of Felstead v Giersch (1976) 14 SASR 27. In that case the Full Court held by a majority that there was no basis for limiting the costs in an appeal from the Magistrates Court so as to award amounts which were less than those awarded in other jurisdictions of the court.

14. After taking into account the circumstances of the present case, I have decided that it is appropriate to order the payment of a lump sum by way of costs.  The appellant has suggested an amount in the range of $2000 to $2500.  In view of the fact that there was no contested hearing and because I am not convinced that this was a case in which the costs of senior counsel should be visited on the appellant, I am of the view that the amount of $2500 is fair and reasonable.  The respondents were represented by the same solicitor and counsel.

15. I order that the appellant pay the costs of both respondents fixed in the total sum of $2500.