Police v McIntosh - [2009] SASC 253

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v MCINTOSH
[2009] SASC 253
Judgment of The Honourable Justice Nyland
25 August 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY - RESTRAINING ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - GENERAL PRINCIPLES
Appeal against order for costs in proceedings for restraining order - interim order made but proceedings withdrawn on day fixed for trial - Summary Procedure Act 1921 s 189(2a) - whether police acted in bad faith or unreasonably - order for costs made on basis of inadequate investigation by police - Magistrate applied incorrect test to question of costs - appeal allowed and order for costs discharged - cross appeal dismissed.
Summary Procdure Act 1921 s 189 (2a), referred to.
White v Police (Unreported Judgment) BC9706341 SASC Perry J 19/11/1997, considered.

POLICE v MCINTOSH
[2009] SASC 253
Magistrates Appeal

NYLAND J: This appeal is concerned with an order for costs made by a Stipendiary Magistrate in the Magistrates Court at Port Augusta on 24 March 2009. On 6 November 2008, Senior Sergeant Yeomans filed a complaint on behalf of Kathleen Pike seeking a restraining order against Terrance McIntosh, the respondent to this appeal, on the basis that unless restrained, Mr McIntosh might behave in an intimidating or offensive manner. In filing the complaint, the Police relied on an 11-page statement signed by Ms Pike on 26 October 2008, which is Exhibit DM1 to the affidavit of Dragan Nikolic, the Police Prosecutor who appeared in court with respect to these proceedings.
The matter essentially related to a neighbourhood dispute in which it was alleged that the respondent had been banging on Ms Pike’s fence, apparently in response to a noise created by Ms Pike’s dogs and geese. On 10 November 2008 the matter came on before a Magistrate in the Magistrates Court at Port Augusta. An ex parte interim order was granted and the Magistrate ordered that a summons issue to the respondent. The matter was then adjourned to 3 December 2008. On 3 December 2008 the respondent did not appear, but a solicitor appeared on his behalf. The matter was then adjourned to 4 February 2009 for a pre trial conference. Prior to that date there was some correspondence between the police and the solicitors for the respondent. A pre trial conference was held on 4 February 2009, at which time the matter was set for a confirmation hearing on 23 March 2009.
According to para 4(l) of the affidavit of Mr Nikolic, in the period between 4 February 2009 and 23 March 2009, Ms Pike advised the police that the issues she had previously experienced with the respondent had resolved and she no longer wished to continue with court proceedings. It appears that on 20 March 2009 a member of the prosecution section contacted the…

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.

Continue reading Police v McIntosh

Details

AGLC: Police v McIntosh [2009] SASC 253
Case: [2009] SASC 253
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the matter of Police v McIntosh, the appeal was directed at an order for costs that was made in relation to proceedings seeking a restraining order. The initial interim order was put in place, but the proceedings were withdrawn on the day set for the trial. The legal issues in the case centred on the criteria for awarding costs under the Summary Procedure Act 1921 section 189(2a), specifically whether the police acted in bad faith or unreasonably. The Magistrate's order for costs was predicated on the notion that the police had conducted an inadequate investigation. However, the court found that the Magistrate had misapplied the legal test when assessing the costs issue.

The court determined that the Magistrate had erred in law by applying an incorrect test to the question of whether the police had acted in bad faith or unreasonably. The proper approach required a consideration of the conduct of the police in light of the information available to them at the relevant time, rather than the retrospective assessment of the adequacy of their investigation. The court found that the police had not acted unreasonably, and that the Magistrate's order for costs should be set aside. The appeal was therefore allowed, and the order for costs was discharged.

The cross appeal by the police, which sought an increase in costs, was dismissed. The court found no merit in the argument that the original order for costs was insufficient and that the police should be awarded additional costs. The decision underscores the importance of applying the correct legal principles when making orders for costs in proceedings involving restraining orders. The court's judgment serves as a reminder of the need for Magistrates to carefully consider the evidence and applicable legal standards before making orders for costs.

Orders