Police v Lacey No. Scciv-02-749

[2002] SASC 275

POLICE  v  LACEY
[2002] SASC 275

Magistrates Appeal

1. DUGGAN J.         This is a prosecution appeal against an order for costs made in the Magistrates Court at Christies Beach in favour of the respondent who had been charged with unlawful possession on a complaint filed in that court.  The prosecution tendered no evidence on the complaint which was dismissed.  The presiding magistrate then ordered the appellant to pay to the respondent costs amounting to $1100.  In calculating this amount the learned magistrate allowed $200 for a pre-trial conference and $900 for a fee on brief and attendances.  The appellant claims that there was no basis for including an allowance for a fee on brief.

2. In order to deal with the arguments on appeal it is necessary to trace the history of the matter.  The respondent was apprehended on 7 November 2001 and charged with possession of methylamphetamine for sale and unlawful possession.  It is alleged that at the time of his apprehension he was carrying a large amount of money in his wallet which is the subject of the charge of unlawful possession.

3. The respondent appeared before the Magistrates Court on 5 February 2002 and was committed for trial on the charge of possessing a drug for the purpose of sale.  At the same hearing the respondent argued that the unlawful possession count should be severed from the information and heard separately in the Magistrates Court.  The application was opposed by the prosecutor but the presiding magistrate decided to commit the respondent for trial on the charge of possession of a drug for sale only and suggested that the prosecution might lay a fresh complaint alleging unlawful possession.  It does not appear from the file why the magistrate who was then presiding over the matter decided against committing the respondent for trial on the unlawful possession charge.  Section 102 of the Summary Procedure Act 1921 provides that summary offences may be charged in the same information as minor or major indictable offences.  Of course if there had been a committal for trial on both charges it would have been open for the defence to apply for a severance of the count of unlawful possession when the matter came before the District Court.

4. The appellant followed the suggestion of the magistrate and laid a fresh complaint in the Magistrates Court charging unlawful possession.  However, on 25 March 2002 the Director of Public Prosecutions filed an ex officio information in the District Court charging the respondent with both offences, namely, possession of a drug for sale and unlawful possession.  The respondent was arraigned on that date.  He was represented by Mr Wardle who had also represented him throughout the proceedings in the Magistrates Court.  The respondent entered pleas of not guilty to the charges on the information.  At the hearing Mr Wardle expressed some concern that the charge of unlawful possession had been laid.

5. Then, on 26 March 2002, a pre-trial conference was conducted in the Magistrates Court in relation to the unlawful possession charge on the fresh complaint.  Mr Wardle appeared for the respondent and advised the court that the Director of Public Prosecutions had filed an ex officio information in the District Court on the two charges.  It would appear that there had been some breakdown in communication between the DPP and the police prosecutor and the latter was not aware that the charge of unlawful possession had been included in the Information filed in the District Court.  The magistrate nevertheless fixed a trial date of 21 May 2002.

6. It would appear that the police prosecutor then contacted the office of the Director of Public Prosecutions and, as a result, wrote to Mr Wardle on 9 May 2002 as follows:

   “I write in relation to the Unlawful Possession trial listed for the 21st May 2002 in the Christies Beach Magistrates Court.  It was indicated at the pre-trial conference that the DPP have laid an information ex officio in the District Court in relation to the Unlawful Possession charge.  This has since been confirmed by the DPP.  It is therefore an application of South Coast Prosecution not to proceed with the duplicitous charge of Unlawful Possession listed for trial on 21/5/02 in the Christies Beach Magistrates Court.

   If you have any queries feel free to contact me on 8392 9116.”

7. Mr Wardle wrote in a reply to the police prosecutor dated 13 May 2002:

   “The point that you raise was argued before the matter was listed for trial.

   It has been listed for trial and if you are not ready to proceed on this date I will be seeking the dismissal of the charge with costs.”

8. The matter was called on before the learned magistrate on 21 May 2002.  No evidence was tendered by the prosecutor and the magistrate dismissed the charge.  Mr Wardle applied for costs.  The learned magistrate gave the following reasons for the order as to costs:

   “This is an application for costs by Mr Wardle, who appears for the defendant, Lacey, and follows the dismissal by me of the charge of unlawful possession at the request of the prosecutor.  The matter was listed for trial today, and Mr Wardle submits that he attended court with his client in order to conduct that trial.  This matter has an unfortunate history, as it was initially the second count on a major indictable offence which has since been committed to the District Court for trial.  The count was subsequently dismissed as regards that information, and was relaid as a complaint.  A Pre-trial Conference was conducted, and the matter was ultimately set for trial today.  I have listened carefully to the arguments presented by Mr Wardle and Mr Raymond, who appears for the prosecution, and although I indicate that I am not prepared to award costs in the amount sought by Mr Wardle, I am prepared to award costs in favour of the defendant in the sum of $1100.  That sum is based on the following allowances:

   a)     Pre-trial Conference $200

   b)     Fee on brief and attendances $900.”

9. Ms Powell QC, for the respondent, submitted that Mr Wardle was anxious for tactical reasons to avoid a joint trial on both charges in the District Court.  As the unlawful possession charge had been listed for trial in the Magistrates Court he wanted to be in a position to say that he was ready for trial and that if the prosecution were not ready, the magistrate might be prepared to dismiss the charge thus preventing the Crown from proceeding against the respondent on that charge in the District Court.

10. I accept that this was the reason for Mr Wardle’s actions.  However, whether his client was entitled to costs which included an allowance for a fee on brief is another question.

11. It is obvious that the magistrate was of the view that a fee on brief was appropriate because of his understanding that Mr Wardle had attended court with his client in order to conduct the trial.  However, although the matter was listed for trial, Mr Wardle had been made aware that there would not be a trial on that date.  On 25 March 2002 he was made aware that the same charge of unlawful possession had been added to the District Court information.  Then, on 9 May 2002, he was advised that, because the Director of Public Prosecutions had decided to proceed on the unlawful possession charge in the District Court, the police prosecutor would not be proceeding with that charge in the Magistrates Court.

12. It was appropriate that the respondent be awarded costs against the prosecution in relation to the pre-trial conference.  The prosecutor had not been advised prior to that conference that the Director of Public Prosecutions had decided to proceed with the charge in the District Court.  However, there was no basis for ordering that the appellant pay the costs of the respondent by reason of any entitlement to a fee on brief.  The respondent was entitled to costs for the attendance on 21 May 2002 but not on the basis that it was reasonably anticipated that there would be a contested hearing.

13. Courts of summary jurisdiction are invested with a discretion to award costs pursuant to the Summary Procedure Act 1921 s 189.  However, if the award of costs proceeds on an incorrect factual basis this may give rise to appealable error.  In my view, there has been such an error in this case.

14. The appeal will be allowed and the order for costs made by the learned magistrate will be set aside.  I will hear the parties as to the orders which should be made in substitution thereof.