Police v Hodder

Case [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…

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Police v Hodder [2016] SASC 70
Case
[2016] SASC 70
Decision Date

CaseChat Overview and Summary

The case of Police v Hodder involved a dispute over the award of costs by a magistrate to the police in the context of proceedings for an intervention order. The respondents appealed the magistrate's decision, arguing that the police were not entitled to costs as they had not acted in bad faith or unreasonably, and that the award of costs should not cover the entirety of the proceedings nor exceed the Magistrates Court Criminal Scale of Costs. The appeal was heard by a higher court which had to determine whether the magistrate had erred in law by awarding costs to the police under these circumstances.

The legal issues before the court included whether the magistrate had the discretion to award costs to the police, whether the police had acted unreasonably or in bad faith, and whether the costs awarded were within the Magistrates Court Criminal Scale of Costs. The court considered the magistrate's findings and whether there had been any procedural unfairness that affected the outcome of the case. It was noted that the police had not referred to any evidence that might have been adduced if given the opportunity to do so, and it was argued that the denial of procedural fairness had made no difference to the outcome.

The court found that the magistrate had not erred in law by awarding costs to the police, as there was no irregularity in the process. It was held that the magistrate was in the best position to decide on the costs, and that the decision to allow costs above the scale should not be disturbed in the absence of any irregularity. The court also found that the police had not acted unreasonably in bringing and maintaining the application for an intervention order against the respondent, and that the magistrate did not err in fixing costs above the scale. The question of whether costs should have been awarded based on the police acting unreasonably in continuing the proceedings after the second day of the trial was left to the magistrate who had conducted the trial.

The court made orders to the effect that the magistrate should determine whether costs should have been awarded against the police on the basis that they had acted unreasonably in continuing the proceedings after the second day of the trial. The appeal was dismissed with respect to the award of costs, and the matter was remitted to the magistrate for further consideration of the issue of costs.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.