Police v Konieczka - [2006] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v KONIECZKA
[2006] SASC 183
Judgment of The Honourable Justice Duggan
28 June 2006
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
Costs awarded to respondent (defendant) following his acquittal in the Magistrates Court on a charge of assaulting his wife - magistrate found that allegation concocted - hearing completed within one day - previous adjournment of trial on application of prosecution - costs of $12,000 awarded to respondent - appeal by prosecution against quantum of costs - cross-appeal by respondent on ground that costs should have been awarded as between solicitor and client.
Held: appeal allowed and order for costs in sum of $7000 substituted - cross-appeal dismissed.
Summary Procedure Act 1929 s 189(1); Magistrates Court Rules 1992 Rule 51, referred to.
Hamdorf v Riddle [1971] SASR 398; Latoudis v Casey (1990) 170 CLR 534; Norton v Morphett (1995) 83 A Crim R; Haslam v Emu Air Charter Pty Ltd, McKean and Johnstone (1998) 200 LSJS 456, discussed.

POLICE v KONIECZKA
[2006] SASC 183
Magistrates Appeal

Duggan J. The appellant has appealed against the quantum of an order for costs made against the prosecution in a matter dealt with in the Adelaide Magistrates Court. The respondent has cross-appealed against the same order.
The costs were awarded following the acquittal of the respondent on a charge of assaulting his wife (the complainant). There is no challenge to any of the findings made by the magistrate in his reasons for dismissing the charge. The respondent, the complainant, and their niece who was visiting from Germany, were present in the house occupied by the respondent and the complainant at the time of the alleged incident. The complainant and the niece gave evidence for the prosecution. The respondent and character witnesses gave evidence for the defence.
At the time of the incident, the respondent and the complainant were involved in divorce proceedings. The magistrate found that the allegation of assault was a deliberate fabrication by the complainant. He concluded that the complainant wanted her husband out of the matrimonial home. The magistrate said he was “perfectly satisfied” with the version presented by the respondent.
The respondent applied for costs in the sum of $17,990.
The magistrate gave the following reasons for his order as to costs:
The consequences of a conviction to the defendant would have been disastrous. The defendant laid his cards on the table right from the start. It is easy to be wise after the event but in my view there was little prospect of success from the informant’s point of view. I found that the allegation of an assault had been fabricated. I do not and will not resile from that finding.
I order that the informant contribute $12,000 towards the defendant’s costs.
The appellant has complained that the amount awarded was too high, particularly as the trial itself lasted for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] SASC 183
Decision Date: 28 June 2006

CaseChat Overview and Summary

In Police v Konieczka, the respondent was acquitted by a magistrate in the Magistrates Court on a charge of assaulting his wife. The magistrate determined that the allegation had been concocted. The hearing was completed within a single day, and the trial had been previously adjourned on the application of the prosecution. The respondent was awarded costs amounting to $12,000. The prosecution appealed against the quantum of the costs awarded, while the respondent cross-appealed on the ground that costs should have been awarded as between solicitor and client.

The appeal centred on the amount of costs awarded to the respondent. The prosecution argued that the costs were excessive, while the respondent contended that the costs should have been awarded on a solicitor-client basis rather than on a full indemnity basis. The court needed to determine the appropriate quantum of costs and whether the basis of costs should be solicitor-client or indemnity.

The court found that the magistrate had discretion to award costs in criminal proceedings and that the appeal was limited to the quantum of the costs. The court observed that the trial was brief, and the respondent had not provided detailed records of the costs. The court substituted the magistrate's order for costs with an order for $7000, reducing the original amount. The court also dismissed the cross-appeal, finding that the basis of the costs was not a matter that warranted interference on appeal.

The court's final order was to allow the prosecution's appeal, substituting the magistrate's order for costs with an order for $7000. The cross-appeal was dismissed, and no further orders were made.

Orders