Police v Hodder - [2016] SASC 70

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
POLICE v HODDER
[2016] SASC 70
Judgment of The Honourable Justice Parker
24 May 2016
MAGISTRATES - ORDERS AND CONVICTIONS - ORDERS TO RESTRAIN DOMESTIC, FAMILY OR APPREHENDED VIOLENCE OR FOR PERSONAL SAFETY
MAGISTRATES - ORDERS AND CONVICTIONS - COSTS - DISCRETION OF COURT
MAGISTRATES - HEARING - COURSE OF HEARING - PRESENTATION OF SUBMISSIONS OR EVIDENCE GENERALLY
NOTE - Section 33 of the Intervention Orders (Prevention of Abuse) Act 2009 makes it an offence to publish a report about proceedings under the Act if the report identifies, or tends to identify, any person involved in the proceedings, any person protected by an order, or a child of a person protected by an order or of the defendant, without the consent of that person.
Appeal against a costs order made following a magistrate’s refusal to confirm an intervention order under s 7 of the Intervention Orders (Prevention of Abuse) Act 2009. The respondent, his former wife, Alicia Hodder, and Hans Minchin were all police officers stationed at, or having connections with, the Victor Harbor Police Station. In 2012 Mr Minchin commenced a relationship with Alicia Hodder. In 2013 Mr Minchin made an application for an intervention order against the respondent, alleging that on 18 occasions the respondent had acted in a threatening and harassing manner towards him. The South Australia Police applied for and obtained an interim intervention order against Mr Hodder in favour of Mr Minchin. In 2014 the trial for the confirmation of the intervention order was held over five sitting days with some additional sitting time for interim rulings. The magistrate found no basis for confirming the intervention order and dismissed the application. His Honour found the respondent to be an honest witness but found that Mr Minchin and Ms Hodder were evasive, unreliable and frequently untruthful. In awarding costs the magistrate found that the police had not acted in bad faith but had acted unreasonably in bringing and maintaining the proceedings. The magistrate awarded costs against the SA Police for the whole of the proceedings, totalling $18,388.40. The magistrate had not indicated to the parties that he was contemplating such an order and no submissions were made about that question. The grounds of appeal are that the magistrate erred by (1) ordering costs when the police had not acted in bad faith or unreasonably, (2) awarding costs for the entirety of the proceedings and (3) fixing costs above the scale.
Held, partly allowing and partly dismissing the appeal, that:
(1) The magistrate erred in finding that the police had acted unreasonably in bringing and maintaining the application for an intervention order against the respondent. The fact that the police could have investigated a matter further does not establish unreasonableness in applying for the intervention order if the allegations were apparently plausible and were considered credible after proofing by the prosecutor. Before finding that the police acted unreasonably it was necessary to allow them the opportunity to be heard in relation to the relevant matters.
(2) The matter needs to be remitted to the same magistrate to decide whether the police acted unreasonably in continuing with the application after the second day of the trial. That issue turns almost entirely on an assessment of Mr Minchin’s credit as a witness to that point in the trial. That issue cannot properly be decided by an appeal judge reading the transcript and considering the documentary evidence. The magistrate had the great advantage of seeing and hearing Mr Minchin’s evidence and his response to cross-examination.
(3) The magistrate did not err in fixing costs above the scale. He had considered the complexity of the trial and rejected as misleading any suggestion that it was “run-of-the-mill”. The magistrate was in the best position to decide costs and, in the absence of any irregularity, his decision to allow costs above the scale should not be disturbed.
Intervention Orders (Prevention of Abuse) Act 2009 s 7; Summary Procedure Act 1921 s 189C, s 189C(1), s 189C(2); Evidence Act 1929 s 35, s 35(2); Police Act 1998 s 11, s 11(2), s 11(3)(b), s 40, s 40(1); Acts Interpretation Act 1915 s 4(1); Supreme Court Civil Rules 2006 r 286(3)(a), referred to.
Fox v Percy (2003) 214 CLR 118; Cook v Galloway [2015] SASC 36; Police v McIntosh [2009] SASC 253; Police v Sard [2010] SASC 296; Pantorno v The Queen (1989) 166 CLR 466; Police v Bieg [2008] SASC 261; Jones v Police [2009] SASC 137, applied.
White v Police [1997] SASC 6452; Konieczka v Police [2006] SASC 288; Police v Henwood [2005] SASC 209; Curnow v Police (2008) 100 SASR 290, discussed.
Commissioner of Police v Justin [1991] SASC 2859; Police Service Board v Morris (1985) 156 CLR 397; Stead v State Government Insurance Commission (1986) 161 CLR 141, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Legislative instrument"

POLICE v HODDER
[2016] SASC 70
Magistrates Appeal (Civil):

PARKER J: This is an appeal against a costs order made by a magistrate. The order was made following the magistrate’s refusal to confirm an intervention order under s 7 of the Intervention Orders (Prevention of Abuse) Act 2009.
There are three grounds of appeal. The first ground is that the magistrate erred in law in ordering costs in circumstances where the police had not acted in bad faith or unreasonably. The second and alternative ground is that the magistrate erred by awarding costs for the entirety of the proceedings. The third ground is that the magistrate erred by fixing costs above the Magistrates Court Criminal Scale of Costs.
Background
Each of Scott Hodder (the respondent), his former wife Alicia Hodder, Hans Minchin (the protected person) and his wife Maxine Minchin are police officers. They were all stationed at, or had connections with, the Victor Harbor Police Station. Mr Hodder and Ms Hodder separated in January 2013. The magistrate found that Mr Minchin and Ms Hodder had commenced a relationship in November 2012.
At all relevant times Mr Hodder was receiving treatment for work-caused post traumatic stress disorder and anxiety. He was engaged in light duties under a back to work program managed by SA Police.
Mr Minchin provided the police with an affidavit dated 29 August 2013 in support of an application for an intervention order against Mr Hodder. Mr Minchin alleged that, on 18 occasions between April and August 2013, Mr Hodder had engaged in harassing and threatening behaviour that caused him to fear for his safety. Six specific incidents were described while reference was made to a further 12 occasions where Mr Minchin alleged that Mr Hodder had passed him in his vehicle and behaved in a threatening manner.
Mr Minchin’s affidavit referred to two incidents at McDonald’s Victor Harbor on 17 and 22 August 2013. He alleged that on these two occasions Mr Hodder had acted in a threatening and harassing manner towards him. On both occasions Mr Minchin had recorded portions of the exchanges on a personal recording device without Mr Hodder’s knowledge. Ms Hodder also obtained CCTV footage from the management of the McDonald’s store that depicted the incident on 22 August 2013. The CCTV recordings were provided by Mr Minchin to SA Police as evidence in support of the application for an intervention order.
On 6 September 2013 Superintendent Williams of the Hills Fleurieu Local Service Area filed a mandatory report against Mr Minchin in relation to the incident at McDonald’s on 17 August 2013. He alleged that Mr Minchin had violated the SA Police Code of Conduct because he attended McDonald’s knowing that Mr Hodder would be present and knowing that his presence would cause a confrontation. While the report form provides for the officer in charge of the Local Service Area (in this case, Superintendent Williams) to recommend whether or not the managerial support process was the appropriate outcome, that part of the form has not been completed on the unsigned copy provided to the Court.
On 23 September 2013 Senior Sergeant Howell of the Ethical and Professional Standards Branch (“EPSB”) in SA Police applied for and obtained an interim intervention order against Mr Hodder in favour of Mr Minchin.
On 23 November 2013 Mr Minchin submitted to SA Police an application to review Superintendent Williams’ report. He stated that he was seeking a review of the finding that there had been a conflict of interest. In the copy of the form provided to the Court, Superintendent Williams had not characterised the breach of the Code of Conduct in that fashion. It seems that this finding must have been made by the informal inquiry officer.
Mr Minchin’s application was accompanied by a six page submission dated 23 November 2013 and also copies of the interim intervention order and the affidavit sworn in support of the order. Mr Minchin sought to explain and defend his action in attending at McDonald’s and using a recording device. He also stated in his submission that he had been interviewed about the complaint by a Senior Sergeant Margaret Acton. He indicated that at the relevant time she had been relieving as the supervisor at Victor Harbor.
Mr Minchin made a series of allegations in his statement dated 23 November 2013. He alleged that Superintendent Williams had been reluctant to proceed with the intervention order, had delayed acting upon it and was biased against him due to his friendship with Mr Hodder. He also asserted that his supervisor, Senior Sergeant Burnett, had expressed disquiet about the action taken by Superintendent Williams. Mr Minchin also alleged that he had been treated unfairly in various respects by Senior Sergeant Burnett. The alleged unfairness was based on claims that a threat had been made by Senior Sergeant Burnett to charge him with a breach of general orders if he did not break off his relationship with Ms Hodder, that he had been excluded from the meeting of sergeants at Victor Harbor and from social events, that there had been delay in completing what he described as an IPM (apparently an annual performance review), that he and Ms Hodder had been treated unfairly and improperly in various other respects and that supervisors had failed to grant his request that Mr Hodder be excluded from the police station. Superintendent Williams had also offered to transfer him to Christies Beach police station.
On 11 December 2013 Inspector Sickerdick of the Hills Fleurieu Local Service Area concluded a review of the matter. He quashed the finding made by the informal inquiry officer. He found that Mr Minchin had not entered McDonald’s seeking a confrontation and had turned on the recording device for his own protection (contrary findings were later made by the magistrate.) He stated that he had reached that conclusion after “having read the information supplied by the member seeking the review and the original PD 185 [ie the report by Superintendent Williams] ...”.
Inspector Sickerdick also found that although a breach of the Code of Conduct might be established on the basis of a conflict of interest, due to the mitigating circumstances the managerial support process should be applied to Mr Minchin as had been recommended by Superintendent Williams. Inspector Sickerdick stated that Mr Minchin should be reminded of his obligations under the Code of Conduct and of how his actions may be perceived by others. Mr Minchin was advised of Inspector Sickerdick’s finding on 14 January 2014.
The documents completed by Inspector Sickerdick indicate that a finding had been made by an informal inquiry officer after the lodgement by Superintendent Williams of his report. However, this finding was not provided to the Court. There is nothing in the police documents to indicate whether any investigation was conducted following the report by Superintendent Williams or whether the informal inquiry officer simply dealt with the matter on the papers.
An internal inquiry concerning an alleged breach of the Code of Conduct was undertaken in relation to the action of Ms Hodder using her status as a police officer to obtain the CCTV footage from McDonald’s. While there was little evidence about that issue before the magistrate, it seems that the inquiry had not been completed at the time of the trial.
On 3 March 2014 Mr Minchin provided the police with an addendum to his affidavit dated 29 August 2013. He made further allegations against Mr Hodder and stated that he believed that, without the intervention order, Mr Hodder would be likely to stalk, threaten, abuse, intimidate and assault him.
The trial and the magistrate’s findings
The trial for the confirmation of the intervention order commenced on 29 July 2014. It occupied five sitting days with some additional sitting time for interim rulings. Mr Minchin was cross-examined for part of the first day, all of the second day and some of the morning of the third day. Ms Hodder was the second witness for the prosecution. The defence called Ms Minchin and Mr Hodder was then the final witness.
On 9 December 2014 the magistrate ruled that the audio recordings made by Mr Minchin on 17 and 22 August 2013 should not be admitted into evidence. During the trial the magistrate had also held that the video recording had been improperly obtained by Ms Hodder from McDonald’s and should not be admitted into evidence.
The magistrate dismissed the application for an intervention order on 18 December 2014. His Honour found no basis for confirming the intervention order. He considered Mr Hodder to be frank, honest and open and a witness of truth. In contrast, his Honour found that both Mr Minchin and Ms Hodder were evasive, unreliable and frequently untruthful. His Honour also found that many of the answers given by Ms Hodder were confusing or misleading. She had knowingly provided incorrect evidence in an attempt to blame the prosecutor for an inappropriate disclosure of her subpoenaed telephone records. The magistrate found that Mr Minchin had been responsible for the disclosure.
The magistrate found that the police prosecutor must be taken to have been aware of the relevant information known to SA Police. Thus the prosecutor must be taken to be aware prior to making the application on 23 September 2013 that Superintendent Williams had made the mandatory report against Mr Minchin on 6 September 2013. His Honour referred to the statement by Mr Minchin that Superintendent Williams had been reluctant to pursue the application. He also found that the police would have been aware of the workplace disharmony at Victor Harbor and the medical issues relating to its employee, Mr Hodder. His Honour also referred to the fact that the police would have been aware of the content of the submission made by Mr Minchin on 23 November 2013. For these reasons the magistrate found that although the police had not acted in bad faith, they had acted unreasonably in commencing and maintaining the proceedings.
Mr Hodder then applied for costs in the sum of $18,828.27 to be awarded against Mr Minchin for the whole of the proceedings under s 189C(1) of the Summary Procedure Act 1921.[1] That application was dismissed by the magistrate on the basis that s 189C(1) did not empower him to award costs against Mr Minchin. The issue has not been pursued in this appeal.
[1] Section 189C(2) of the Summary Procedure Act 1921 defines a “restraining order” to include an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009. Thus, the principle set out in s 189C(1) applies to orders made under the latter Act.
In the alternative, Mr Hodder applied for costs against the police in the sum of $4,986.74. This comprised counsel fees for the final three days of trial at the Magistrates Court scale rate, the costs of a subpoena issued following the evidence of Mr Minchin and solicitor costs for work undertaken following the first two days of trial. The magistrate did not indicate to the parties that he was contemplating such an order and no submissions were made about that question. That omission is the basis for the complaint by the police that there has been a denial of procedural fairness. Mr Hodder also makes the same complaint.
The costs judgment was delivered on 27 May 2015. Costs for the whole of the proceedings, totalling $18,388.40, were awarded against SA Police. The magistrate found that the police had not acted in bad faith but had acted unreasonably in bringing the proceedings.
The magistrate also held that it was appropriate to award costs above the Magistrates Court scale. His Honour identified eight judgments of this Court that he had taken into account in reaching that conclusion. He specifically rejected any suggestion that the trial was straightforward or “run-of-the-mill” and noted that it required the skills of experienced counsel. In that respect he referred to the detailed preparation required in relation to telephone and other records, the need to take witnesses carefully through their evidence, the need to sensitively canvass Mr Hodder’s medical condition and the requirement to make submissions about the admissibility of material obtained through use of a listening device and the admissibility of the DVD evidence obtained by Ms Hodder from McDonald’s.
Unreasonableness in pursuing the application
The first ground of appeal impugns the magistrate’s finding that the police acted unreasonably in bringing and maintaining the proceedings by not fully investigating the allegations made by Mr Minchin against Mr Hodder prior to applying for the restraining order on 23 September 2013.
I consider that in deciding this appeal by way of rehearing I may review the question of whether or not SA Police acted unreasonably in commencing the application.[2] In undertaking that task I recognise the particular advantage held by the magistrate who had conducted the trial and heard and saw the witnesses.
[2] Fox v Percy (2003) 214 CLR 118 at [25]-[29]; Cook v Galloway [2015] SASC 36 at [49].
Section 189C of the Summary Procedure Act 1921
Section 189C of the Summary Procedure Act 1921 (SA) provides:
189C—Costs against complainant in proceedings for restraining order
(1) Despite any other provision of this Part, costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
(2) In this section—
complainant, in relation to a restraining order, includes an applicant for a restraining order;
restraining order includes a domestic violence restraining order under the Domestic Violence Act 1994 and an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009.
Section 189C(1) makes clear that before the exercise of the discretion to award costs against a complainant can be considered there must first be a finding that the complainant has acted in bad faith or unreasonably in bringing the proceedings. Thus, the finding of bad faith or unreasonableness operates as a jurisdictional fact or condition precedent to the exercise of the jurisdiction.
The parties have accepted that the reference in s 189C(1) to “bringing of proceedings” should be read as meaning “bringing and continuation of proceedings”. In Cook v Galloway Nicholson J assumed that to be the correct position without deciding the point.[3] I will proceed on the same assumption.
[3] [2015] SASC 36 at [45]. See also Police v McIntosh [2009] SASC 253 at [12].
The authorities
The magistrate referred in his costs judgment to several judgments of this Court where the application of 189C(1) of the Summary Procedure Act and its antecedent provision was considered. It is necessary to refer briefly to several of those authorities.

In White v Police Perry J outlined the policy considerations that must be borne in mind when exercising the discretion to award costs in intervention order cases:[4]
The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty. In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation. That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.
[4] [1997] SASC 6452 at 6.
In Police v McIntosh Nyland J observed:[5]
The purpose of the special provision for costs contained in s 189(2a) was to remove the cost disincentive for people who, as a matter of policy, should not be dissuaded from using the legislation, whether or not those applications were ultimately successful. The public policy discretion consideration discussed by Perry J in White’s case continues to be an important factor which must always be borne in mind in the exercise of the discretion.
[5] [2009] SASC 253 at [12].
Nyland J held that the appellant had acted reasonably in bringing and maintaining the proceedings because the complainant had provided a lengthy statement to the police, and this established a prima facie case for the application.[6] Her Honour found that although the police could have investigated the matter further, this in itself did not amount to bad faith or unreasonableness in the bringing, or continuation of, the proceedings.[7]
[6] Ibid at [9]
[7] Ibid at [12].
In Cook v Galloway Nicholson J considered an appeal from a magistrate’s decision to award costs under s 189C(1).[8] His Honour dismissed the appeal. Consistently with the decisions in White v Police and Police v McIntosh, Nicholson J observed that the prima facie position is that costs should not be awarded against a complainant in proceedings for a restraining order.[9]
[8] [2015] SASC 36
[9] [2015] SASC 36 at [57].
In Police v Sard[10] Anderson J set aside an order for costs made against the police. The matter had not proceeded because the deponent was the only prosecution witness and she had not attended for the trial. Anderson J noted that it is necessary to look at the initial complaint and examine its potential merit. His Honour found that the police had acted reasonably in commencing the proceedings on the basis of the information contained in the affidavit sworn by the former partner of the respondent. The police prosecutor had been satisfied after assessing the affidavit and some subpoenaed material (which did not necessarily support the affidavit) that there was a reasonable prospect of success.
[10] [2010] SASC 296.
In Konieczka v Police[11] the Full Court was dealing with an alleged assault. The evidence of the victim that she had been assaulted by her husband was supported by a relation who claimed to have witnessed the incident. The magistrate found that the evidence of the alleged victim and the witness was a fabrication motivated by the desire to force the defendant out of the matrimonial home. Perry J (with whom Nyland and Sulan JJ agreed) observed that it was not for the prosecutor to determine whether the alleged victim and eyewitness were credible. His Honour also held that prosecuting authorities owe a duty to proceed with charges where it is open to the court to accept the complainant as a credible witness. Prosecutors should not prejudge the issue.[12]
[11] [2006] SASC 288.
[12] Ibid at [37].
It is clear from this survey of the authorities that the prima facie position under s 189C is that costs should not be awarded against a complainant in proceedings for a restraining order. The mere fact that a matter could have been investigated further by the police does not establish unreasonable conduct. Prosecutors should not prejudge the issue and should proceed with charges where it is open to the court to accept the complainant as a credible witness
The SA Police General Order
Counsel for Mr Hodder submitted that the Court should have regard to, or alternatively admit into evidence, the General Order – Complaints and Disciplinary Framework (“General Order”) issued by the Commissioner of Police with an operative date of 16 August 2013. I received the General Order de bene esse.
The General Order was said to support the submission that the police had not acted reasonably in bringing the application. That was said to the case because the General Order states that the EPSB has overall responsibility for managing the disciplinary framework. The EPSB is responsible for co-ordinating the investigation, adjudication and prosecution of matters involving complaints against employees,[13] while the Professional Conduct Section (“PCS”) within the EPSB undertakes that work.[14] The prosecutor, Senior Sergeant Howell, works in the PCS. The complaints made by Mr Minchin about Mr Hodder, and also the latter’s allegations against his superiors and colleagues, should have been investigated by the EPSB or PCS before the intervention order was pursued. The prosecutor could not be quarantined from knowing about these matters.
[13] General Order at 7.
[14] Ibid at 8.
The submission that the Court should have regard to the General Order without the need to receive it as evidence was founded on the contention that it is a “legislative instrument” within the meaning of s 35 of the Evidence Act 1929, which requires a court to take judicial notice of a legislative instrument.
The relevant limb of the definition of “legislative instrument” in s 35(2) of the Evidence Act is paragraph (c). This refers to a “regulation, rule, bylaw or other form of subordinate legislation made under the law of this State”. The General Order does not purport to be a regulation, rule or bylaw and nor would it ordinarily be described as such. Thus, the question is whether it is some other form of subordinate legislation made under the law of South Australia.
Section 11 of the Police Act 1998 empowers the Commissioner to make or give general or special orders for the control and management of SA Police. Section 11(2) lists the various matters that may be covered by such an order. Section 11(3)(b) provides that a general or special order is not to be taken to be a form of subordinate legislation to which the Subordinate Legislation Act 1978 applies. However, that exclusion does not resolve the question of whether or not a general order is some other form of subordinate legislation.
A similar issue was considered by Doyle CJ in Police v Henwood.[15] In that case the question was whether a different general order made by the Commissioner of Police was a “statutory instrument” as defined in s 4(1) of the Acts Interpretation Act 1915. The relevant limb of the definition under that Act referred to “any other instrument of a legislative character made or in force under an Act”. While not identical to the definition in s 35(2)(c) of the Evidence Act, the two provisions are very similar and useful guidance is provided by the observations of Doyle CJ.
[15] [2005] SASC 209.
Doyle CJ doubted whether the general order before him was a statutory instrument as it was not an “instrument of a legislative character”.[16] It was, by and large, a series of administrative or management instructions given to police officers concerning the performance of their functions. While a number of the instructions reflected or could be related to provisions in the Road Traffic Act 1961 (the general order dealt with breath testing performed under that Act) other provisions could not be so related.
[16] Ibid at [52].
The General Order extends over 28 pages. The preamble on page one states that general orders are issued to assist employees effectively and efficiently perform their duties. Most orders are stated to be mandatory and must be followed. However, the preamble notes that some of the content of general orders will have been prepared as guidelines.
A substantial part of the General Order explains the operation of the Police (Complaints and Disciplinary Proceedings) Act 1985, the Police Act 1998 and cognate legislation applicable to those Police Department employees who are not police officers. The document also directs how complaints against police officers and other employees are to be managed and investigated. It also includes much by way of administrative instruction, eg the time allowed for the completion of various processes, the forms that are to be completed, the responsibility of different work areas within SA Police and so forth.
The General Order simply provides information and administrative direction to police and public servants about the management of complaints. There is nothing in it which can properly be regarded as having a legislative effect. I therefore do not consider that it is a “legislative instrument” within the meaning of s 35(2)(c) of the Evidence Act. Thus, the Court is not required to take judicial notice of the General Order.
The question then is whether the General Order should be allowed as further evidence under rule 286(3)(a) of the Supreme Court Civil Rules 2006. As I have already noted, counsel sought to rely on the General Order to support the contention that the police had not acted reasonably by bringing the application for an intervention order. That argument had not been put to the magistrate despite the fact that counsel otherwise prepared comprehensive written submissions on the costs issue. Nevertheless, the magistrate awarded costs on the basis that the police had not acted reasonably by bringing the application. For that reason the suggestion that Mr Hodder sought to raise this issue for the first time on the appeal misses the point. It was the magistrate who took that path. Mr Hodder is simply seeking to defend the decision made in his favour. For that reason I consider it appropriate to admit the General Order as further evidence in the interests of justice.
The General Order explains the managerial support process as applied within SA Police. The managerial support process provides a remedial or developmental, rather than punitive, framework to resolve low level internal misconduct. Its aims include the enhancement of the professional and personal development of employees.[17]
[17] General Order at 18.
Section 40 of the Police Act provides a wide range of sanctions that may be imposed by the Commissioner where a police member or cadet is found guilty of a criminal offence or admits or is found guilty by the Police Disciplinary Tribunal of a breach of the Code of Conduct. The sanctions range from, at the high end, termination of the person’s appointment to, at the low end, an unrecorded reprimand, counselling, or education or training. Managerial guidance is not one of the sanctions provided for by s 40. While s 40(1)(o) provides that the sanctions may include action of any other kind prescribed by regulation, the Police Regulations 2014 do not provide for managerial support.
The sanctions or outcomes provided for in s 40(1) follow upon an admission of guilt by an officer or a Tribunal finding that the officer has breached the Code of Conduct. There was no such admission by Mr Minchin nor has it been suggested that the Tribunal made such a finding.
It is apparent that the decision by Inspector Sickerdick that Mr Minchin should be given managerial support was not based upon an adverse finding under s 40 of the Police Act. The purpose of the managerial support was to remind Mr Minchin of his obligations under the Code and how others might perceive his actions. The decision by Inspector Sickerdick that managerial support was appropriate establishes that senior police regarded the incident at McDonald’s as low level misconduct. It was accepted that there were mitigating circumstances.
The knowledge of the prosecutor
The magistrate held that information known to the police must be taken to have been known to the prosecutor. While not every piece of information known to an individual officer can necessarily be attributed to SA Police as an organisation, for the reasons that follow, the magistrate’s conclusion was clearly in accordance with the facts known to the Magistrates Court. It was not necessary for the magistrate to have access to the General Order in order to reach that conclusion.
It is apparent from the information supplied by Mr Minchin in his submission of 23 November 2013 that Superintendent Williams (the officer in charge of the local service area that covered Victor Harbour) was aware of the proposed application for an intervention order. The application for review completed by Mr Minchin was addressed to the Office of the Commissioner and forwarded from there to the PCS. The documentation filed in the Magistrates Court confirms that the prosecutor was attached to the PCS.
Thus, the documentary evidence establishes that the Office of the Commissioner, the officer in charge of the relevant local service area and the PCS (in which the prosecutor worked) were all aware of the issues relating to Mr Minchin and Mr Hodder and the problems at the Victor Harbor police station. That knowledge was correctly attributed by the magistrate to the prosecutor.
The SA Police submissions on unreasonableness
The police submit that it had been reasonable to bring proceedings because Mr Minchin’s affidavit evidence was internally consistent, plausible on its face and described many instances of conduct that would satisfy the test for an intervention order. The review by Inspector Sickerdick had largely exonerated Mr Minchin of the allegation made in Superintendent Williams’ report. The police prosecutor had proofed Mr Minchin and Ms Hodder prior to trial and was satisfied that they were credible witnesses. Thus, there was no basis for the police to conclude that they were so lacking in credit that the application was doomed to fail. The police also submitted that it is ultimately the role of the court to assess the credibility of a witness. Even if the police may have done more to investigate the matter, that does not amount to unreasonableness.
The police also submit that despite inconsistencies in Mr Minchin’s evidence at the trial, it was reasonable to continue proceedings after day two of the trial. That was the case because Ms Hodder was still to give evidence, the CCTV footage of the 22 August 2013 incident was still to be tendered, Mr Hodder was still to give evidence and the prosecutor continued to hold the view that Mr Minchin and Ms Hodder were credible witnesses.
Mr Hodder’s submissions on unreasonableness
It was submitted on behalf of Mr Hodder that the police should have investigated the matter prior to making the application for the intervention order. Furthermore, from 27 November 2013 when the allegations made by Mr Minchin against senior officers had become known, those allegations should have been investigated along with the allegations made by Mr Minchin in support of the application for the intervention order. If these investigations had occurred, the police would not have proceeded with the hearing to confirm the interim order.
Particular emphasis was placed by counsel upon what she described as the serious and wide-ranging nature of the allegations made by Mr Minchin against senior police officers in his statement of 23 November 2013. If necessary, the police could have directed officers to answer questions in relation to the allegations made by Mr Minchin.[18] If the allegations had been properly investigated that would have had a devastating effect upon Mr Minchin’s credit with the result that the application would not have been pursued.
[18] Commissioner of Police v Justin [1991] SASC 2859; Police Service Board v Morris (1985) 156 CLR 397.
Consideration
The magistrate found that the police had acted unreasonably in commencing the proceedings even though Mr Hodder had not advanced such a contention. Neither party was given the opportunity to make any submission on the question. For that reason both parties accepted that there had clearly been a denial of procedural fairness.
Mr Hodder’s counsel submitted that the police had not referred to any evidence that might have been adduced if it had been afforded the opportunity to do so. On that basis she submitted that the denial of procedural fairness had made no difference to the outcome.[19] She further submitted that the evidence before the magistrate was clearly sufficient to establish that the police had acted unreasonably. For the reasons that follow, I reject both of those submissions.
[19] Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145.
In making the submission that the denial of procedural fairness had made no difference, counsel placed considerable reliance on the fact that the police had not informed the Court that it had taken any action to address the several issues raised by Mr Minchin in his submission of 23 November 2013. Those allegations were said to be serious and therefore required investigation. That investigation would have fundamentally damaged the credit of Mr Minchin.
That submission assumes that if the matters referred to by Mr Minchin in his submission of 23 November 2013 had been fully investigated those complaints would have been found to lack a proper foundation. The submission further assumes that such a finding would have seriously damaged Mr Minchin’s credit in relation to the allegations he had made against Mr Hodder.
I am not persuaded that either assumption is sound. The substance of the complaints made by Mr Minchin on 23 November 2013 was that he was being treated unfairly by his colleagues and superiors. The subject matter of those complaints was materially different to those that he had made about Mr Hodder. For that reason, the rejection by the magistrate of the allegations made against Mr Hodder does not establish that a thorough investigation would necessarily have found that the complaints made by Mr Minchin against his colleagues and superiors were also baseless. Even if an investigation had resulted in such a finding, because of the different content of the allegations it would not necessarily have led the police to conclude that his allegations against Mr Hodder were also unreliable and thus an intervention order should not be sought.
I also understood counsel to suggest that the claim by Mr Minchin that Superintendent Williams was reluctant to proceed with the application for the intervention order supported her submission that the police had acted unreasonably. Mr Minchin appears to have suggested in his review submission of 23 November 2013 that the alleged reluctance on the part of Superintendent Williams was due to his friendship with Mr Hodder. Even if an investigation had shown that assertion to be wrong, such a finding may not necessarily have damaged Mr Minchin’s credit to any great extent.
If an investigation had found that Superintendent Williams was reluctant to proceed with the application because he thought it lacked a proper basis, this would not necessarily have established that the police had acted improperly in pursuing the matter. The fact that different views may have been held by senior officers would fall far short of establishing unreasonable action on the part of the police.
The report made by Superintendent Williams about the conduct of Mr Minchin at McDonald’s related only to one of the multiple allegations made by Mr Minchin against Mr Hodder. The finding of Inspector Sickerdick establishes that the authorised decision-maker within SA Police regarded the misconduct by Mr Minchin on this occasion as having been relatively minor. In any event, a finding that Mr Minchin may have been at fault to some extent in relation to one of his complaints against Mr Hodder did not necessarily establish that his other complaints were baseless.
In arriving at the decision that the police had acted unreasonably in commencing the proceedings, the magistrate attached some weight to the knowledge that the police had of Mr Hodder’s personal circumstances, the various difficulties at Victor Harbor and the marital breakdown issues. I have found at paragraph 55 that the magistrate correctly concluded that the prosecutor must be taken to have been aware of those matters.

I do not consider the matters referred to in the preceding paragraph to be necessarily inconsistent with the behaviour alleged by Mr Minchin. To the contrary, a person known to be suffering from a psychological condition and whose marriage breaks down when his wife leaves him for a colleague might conceivably behave in the fashion alleged by Mr Minchin. On the other hand, if the allegations made against Mr Hodder were true, that may possibly have indicated a need for more intensive treatment of his psychological condition and the provision of greater support by SA Police as his employer rather than the lodgement of an intervention order application. Because of the approach adopted by the magistrate, the police were denied the opportunity to address these issues by way of further evidence and submissions.
The Full Court held in Konieczka v Police that prosecuting authorities owe a duty to proceed where it is open to the court to accept the complainant as a credible witness and prosecutors should not prejudge the issue.[20] Of course, that observation by the Full Court does not mean that the prosecution is entitled to prosecute unmeritorious cases with impunity. That was not what happened in this case.
[20] [2006] SASC 288 at [37].
As the submissions on behalf of the police noted, the evidence and the two affidavits provided by Mr Minchin were internally consistent and apparently plausible. They described with some particularity the multiple instances of improper behaviour alleged against Mr Hodder. The conduct alleged was sufficient to satisfy the test for an intervention order. It is of particular importance that the police prosecutor had proofed Mr Minchin and Ms Hodder prior to trial and was satisfied that they were credible witnesses.
I find that the circumstances are not relevantly distinguishable from those considered by Anderson J in Police v Sard[21] and by Nyland J in Police v McIntosh.[22] In those two cases the court found that, of itself, the fact that the police could have investigated a matter further does not establish unreasonableness in applying for the intervention order if the allegations were apparently plausible and were considered credible after proofing by the prosecutor. Before finding that the police acted unreasonably it was necessary to allow them the opportunity to be heard in relation to the matters I have referred to above at paragraphs 56 and 63 to 71.
[21] [2010] SASC 296.
[22] [2009] SASC 253.
These matters collectively indicate that there were significant grounds upon which the police may have submitted, if the opportunity to do so had been allowed, that they had not acted unreasonably in making the application. There may well have been other matters raised in support of such a submission if an opportunity had been allowed.
While the magistrate was not bound by the submissions of the parties he was not entitled to decide the matter on grounds that they had not had the opportunity to address.[23] Because of the failure by the magistrate to accord procedural fairness to the police he erred in finding that they had acted unreasonably in making the application. I also reject the submission by counsel for Mr Hodder that the denial of procedural fairness made no difference to the outcome. The police might possibly have persuaded the magistrate otherwise if the opportunity had been allowed. I will therefore set aside the orders made by the magistrate requiring SA Police to pay Mr Hodder’s costs in the sum of $18,828.27.
[23] Pantorno v The Queen (1989) 166 CLR 466; Police v Bieg [2008] SASC 261.
Award of costs for the entirety of the proceedings
The focus of the costs submissions made on behalf of Mr Hodder was upon his unsuccessful claim against Mr Minchin. However, counsel also submitted in the alternative that the police had acted unreasonably in continuing the proceedings after the second day of the trial given the obvious, significant and damaging inroads that had been made into Mr Minchin’s credibility and reliability. At that stage it should have been apparent to the police that the application was doomed to fail. As I have already indicated, the magistrate did not consider this issue at all. Instead, he decided the matter on an entirely different basis.
On the appeal, counsel for the police acknowledged that the cross-examination of Mr Minchin had shown inconsistencies between his evidence about when he had commenced a relationship with Ms Hodder and the telephone records. Some “headway” had also been made in challenging his evidence about the circumstances and nature of the alleged incidents involving Mr Hodder.
Nevertheless, counsel also contended that in the absence of any indication from the magistrate about his perception as to the credibility of Mr Minchin there were several reasons that had made it not unreasonable for the police to continue with the trial after day two. She referred to the fact that Ms Hodder was still to give evidence to corroborate key elements of the evidence given by Mr Minchin, being his evidence relating to the two incidents at McDonald’s on 17 and 22 August 2013. The CCTV footage from McDonald’s dealing with the incident on 22 August 2013 was yet to be tendered through Ms Hodder for the purpose of providing partial corroboration for her evidence and that of Mr Minchin. Mr Hodder was also still to give evidence and to be cross-examined. Counsel placed particular reliance on the fact that the prosecutor continued genuinely to hold the view that both Mr Minchin and Ms Hodder were credible witnesses notwithstanding the outcome of the cross-examination of Mr Minchin.
The competing arguments about the reasonableness of continuing with the application after the completion of the second day of the trial rely almost entirely on an assessment of Mr Minchin’s credit as a witness to that point in the trial. That issue cannot properly be decided by an appeal judge reading the transcript and considering the documentary evidence. The magistrate had the great advantage of seeing and hearing Mr Minchin’s evidence and his response to cross-examination. Thus, the matter needs to be remitted to the same magistrate to decide whether the police acted unreasonably in continuing with the application after the second day of the trial.
Costs above the scale
The police have also appealed on the basis that the magistrate erred in fixing costs above the Magistrates Court Criminal Scale of Costs.
The police have submitted that the scale is intended to be the norm. There can only be a departure where there is something that clearly distinguishes the case from the norm. The departure from the scale was not warranted because the case was not unusually complex or unusual. The trial involved four witnesses and turned on the credibility of those witnesses. There were also some rulings and subpoenas. The police contend that these are all commonplace features of a trial.
In Konieczka v Police Perry J (with whom Nyland and Sulan JJ agreed) observed that the discretion to award costs is at large and a court can award costs between scale and indemnity costs. However, the discretion must not be exercised arbitrarily and relevant factors must be taken into account.[24] Perry J considered that a prosecutor’s public duty to initiate a prosecution, when justified upon the evidence in their possession, is one such factor that should be taken into account by the court when there is an application for indemnity costs, or costs beyond the scale.[25]
[24] [2006] SASC 288 at [22].
[25] Ibid at [38].
Perry J also held that the scale is intended to be the norm.[26] An award of costs above the scale can only be justified in “exceptional circumstances”.[27] Emphatic protestations of innocence coupled with assertions that the complainant is lying are commonplace and do not justify a departure from the scale.[28] Furthermore, a departure from the scale would not necessarily be justified even if the prosecution’s case was weak.[29]
[26] Ibid at [28].
[27] Ibid at [39].
[28] Ibid.
[29] Ibid at [28].
His Honour went on to observe that the quantum of costs is a matter for the exercise of discretion and justification for departing from the scale may be influenced by a number of factors:[30]
... the amount to be allowed was entirely a matter for the exercise of discretion. The discretion should not be circumscribed by any attempt to lay down any rigid rules or principles. Justification for departure from the scale may arise from a large variety of circumstances, including the complexity of the case, the seriousness of the charge, whether it was reasonable to brief senior counsel, the conduct of the prosecution or of witnesses for the prosecution, and other matters. Likewise, the amount allowed will be influenced by similar factors.
[30] Ibid at [41].
Debelle J considered in Curnow v Police the reference made by Perry J to “exceptional circumstances” in Konieczka v Police and observed:[31]
When Perry J used the expression “exceptional circumstances”, he was referring only to the circumstances in which an order as to indemnity costs should be made. In [41] Perry J discussed the circumstances in which a magistrate might exercise the discretion to award costs on a basis other than that fixed in the First Schedule. His Honour clearly stated that that discretion is not to be circumscribed by any rigid rules or principles. In no respect did he fetter the exercise of that discretion. Instead, he clearly stated that a departure from the rule may be justified in a large variety of circumstances. He added that the amount to be allowed will be influenced by similar factors.
[31] (2008) 100 SASR 290 at [20].
Debelle J also observed that a magistrate may award costs above the scale if he or she believes that an award of costs according to the scale is inadequate. In considering the case at bar Debelle J held:[32]
Although not a run of the mill case, this was not a case which justified a departure from that scale. There was nothing in the factual allegations that pointed to complexity of a kind which justified a departure from that scale. It was a case that essentially turned on the strength of the prosecution case and the credibility of its main witness.[33]
[32] Ibid at [22].
[33] Ibid at [28].
In Jones v Police Gray J held that a costs order will not be disturbed unless some error of principle or irregularity is disclosed or it appears that the amount is manifestly excessive or inadequate.[34] The complexity of the case, the seriousness of the charge, the conduct of the prosecution and the conduct of witnesses for the prosecution are all factors which should be considered.[35] The magistrate who hears the case is in the best position to determine costs.[36]
[34] [2009] SASC 137 at [61].
[35] Ibid at [63].
[36] Ibid at [65].
In essence, the police have submitted that the description by Debelle J of Curnow v Police as being “a case that essentially turned on the strength of the prosecution case and the credibility of its main witness” was also apt to describe this matter. Thus, on that submission, there was no basis upon which the magistrate could properly have awarded costs at a rate above the scale. However, the magistrate expressly stated at paragraph 74 of his costs reasons that he had considered the complexity of the trial and rejected as misleading any suggestion that it was “run-of-the-mill” and added “I should know as I presided at the trial”.
In that light I am not persuaded that there was any error of principle on the part of the magistrate. As Gray J pointed out in Jones v Police, the magistrate was in the best position to decide costs and, in the absence of any irregularity, his decision to allow costs above the scale should not be disturbed.
Conclusion
I find that the magistrate erred in finding that the police had acted unreasonably in bringing and maintaining the application for an intervention order against Mr Hodder. I further find that the magistrate did not err in fixing costs above the scale. The question of whether or not costs should have been awarded against the SA Police on the basis that it had acted unreasonably in continuing the proceedings after the second day of the trial must be determined by the magistrate who had conducted the trial. I will make orders to that effect.