Police v Eastwood

[2009] QMC 21

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Police v Eastwood [2009] QMC 21

PARTIES:

POLICE

(prosecution)

v

BENJAMIN JON EASTWOOD

(defendant)

FILE NO/S:

MAG64017/08(0)

DIVISION:

Magistrates Courts

PROCEEDING:

Complaint – Application for costs

ORIGINATING COURT:

Magistrates Court at Mareeba

DELIVERED ON:

6 February 2009

DELIVERED AT:

Mareeba

HEARING DATE:

6 February 2009

MAGISTRATE:

Braes T

ORDER:

Costs allowed

CATCHWORDS:

CRIMINAL LAW – PRACTICE AND PROCEDURE – COSTS – costs on dismissal of complaint

Justices Act 1886, s 158A

COUNSEL:

SOLICITORS:

1. I have before me an application for costs pursuant to Section 158 and 158A of the Justices Act 1886. As is always the case in these matters, I wish to refer extensively to the decision of Judge White in the matter of Bailey and White which was before him in December 1994 and is Appeal No 43 of 94:

“Subsection 158A(2) sets out a nonexhaustive 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 thereafter is set out a list of various factors to which I have referred.

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 158(1) which provides as follows.

When Justices instead of convicting or making an order, 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 favoured 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 Latuis and Casey. The majority in that case established the following propositions.

Neither a civil or a criminal proceeding are costs awarded as punishment of the unsuccessful party. Costs are awarded to compensate the successful party the expense of having the proceeding imposed on him. Ordinarily a Court of summary jurisdiction in exercising a statutory discretion towards costs in criminal proceedings, will make an order for costs in favour of a successful defendant. No distinction was to be made between complainants who were public officers and those who are private persons and arguments which are often advanced particularly in Queensland cases, the police and public officers might be deterred from prosecuting cases for fear of incurring costs and that legal aid was available to the defendant in a particular case were irrelevant to the exercise of the discretion.

Prior to the decision of the High Court in Latuis, there appeared to be, particularly in Magistrates Courts in Queensland, a prevailing attitude that for 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 the decision in Latuis rejects this view entirely in favour of a view that costs will generally follow the event. That is once a 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 Latuis. In my view the primary effect of Section 158A in overcoming the effect of the judgment in Latuis, 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 are awarded to compensate the successful party for the expense of having the proceedings imposed upon him.

Further the expressed rejection of the arguments concerning the possible 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 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 on an unsuccessful 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 subsection 158A(2) these are matters which might be taken into account, but it is not essential that they exist. It is equally clear that some of those express factors that the conduct of the defendant himself, and the way he has conducted his case,.may be equally relevant to whether or not the order for costs is made.

In any particular case, some of the express factors set out in subsection 158A(2) may be more relevant that 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 fact emerges in a particular case, they are entitled to equal weight. I am also of the view that in any particular case there may be factors relevant to the question of whether it is proper that an order for costs be made that are not expressly mentioned at all in subsection 158A(2) but which are deserving of equal weight or even more weight, than some of the specific matters referred to, because of the circumstances that arise in that particular case. Because a magistrate is compelled to take account of all specific factors mentioned in subsection 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 expressed 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 should say so as briefly as a case may allow.”

1. The matters that are referred to in subsection 158A(2) are these. Firstly, whether the proceeding was brought and continued in good faith. The Kuranda Range is well known for its slippery driving conditions. The defendant has always indicated that the rear end of his vehicle slid out. As early as April 2008, the defendant provided the complainant with a report that concluded that the defendant's version of events were credible. Issues that were identified in that report included the dip in the road, the possibility of oil being on the road at the time of the accident and there were photos taken next day which appear to clearly confirm that there was oil on the road, the absence of any evidence of speed and that this section of road was identified as one of the sections of the Range road where accidents regularly occur.

1. If I understand the file note of the 2nd of February correctly, Constable Hess was aware that it had been raining and commented that when he was at the scene his notebook had mist on the pages. While I would not suggest that the proceedings were brought and continued in bad faith, that is with some malice, I believe that more consideration and investigation should have been given to the matter at an early stage by the complainant.

1. It is well for police and courts to remember, particularly in due care cases, that accidents do happen. I should also hasten to add that it is not for the police officer to make decisions as to what evidence might be accepted, or rejected, at a hearing.

1. So far as this matter is concerned, it is a close call, but I think there is certainly nothing to mitigate against the defendant's application, and I think, on balance, it favours him.

1. Subsection (b) 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. I think consideration of this matter clearly favours the defendant. The complainant should have investigated the matter more vigorously and ensured that those who did give consideration of it understood the full circumstances, the argument that is, that the road was wet at the time.

1. (c) is whether the investigation of the offence was conducted in an appropriate way and generally I lump my consideration of (c) into that what I have already said - that which I have already said in respect of (b). I have little information about the actual investigation, but looking back and given what I have just said, further and better inquiry should have been made. I weigh this in the defendant's favour.

1. (d) and (e) I will consider together. They are whether the order of dismissal was made on technical grounds and not on the finding that there was insufficient evidence to convict or make an order against the defendant, and whether the defendant brought suspicion upon himself or herself by conduct engaged in after the events constituting the commission of the offence. I don't know that those matters are particularly relevant to my consideration of this case, although so far as it is concerned, the proceedings were discontinued by the complainant presumably as the complainant was of the belief that there was insufficient evidence to prove its case beyond a reasonable doubt. In respect of (e), the defendant has at all times been frank and open with the investigation.

1. Sub (f) is whether the defendant unreasonably declined an opportunity before the charge was laid to explain the defendant's version of events or to produce evidence likely to exonerate the defendant, I find that that would be determined in favour of the defendant who has, as I understand it, always co-operated fully with the investigation.

1. (g) and (i) that is whether there was a failure to comply with the direction given under Section 83A which is a directions hearing, and whether the defendant was acquitted of the charge but convicted of another, are, I think, irrelevant to my considerations.

1. (h) is whether the defendant conducted the defence in a way that prolonged the proceedings unreasonably, that obviously is a consideration that favours the defendant for the reasons, I think, which I have already expressed.

1. The result of my consideration is that the complainant should have given better consideration and investigation to the submissions being put forward by the defendant. The defendant has done all that he could to demonstrate to the complainant that he was not guilty of the offence. This is not to say, and I do not intend to convey the impression that I am forming a positive conclusion that the complaint should not have been brought. I must make it clear that it is not essential to show any fault on the part of the complainant, or on the part - sorry, or to show that the complaint should not have been brought before the applicant for costs can succeed.

1. What it does mean though is that the defendant has done all that he could to co-operate with the complainant's investigation and thereby avoid the proceeding. He has had the proceeding imposed upon him. He has had the proceeding dismissed. In the circumstance of this case, weighing up all of the relevant factors, 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 allow the defendant's costs pursuant to Part 2 Schedule 2 of the Justices Regulations in the sum of $1 500.