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Appeal against order for costs in proceedings for restraining order - interim order made but proceedings withdrawn on day fixed for trial - Summary Procedure Act 1921 s 189(2a) - whether police acted in bad faith or unreasonably - order for costs made on basis of inadequate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 solicitor for the respondent and advised that the matter would be withdrawn if no application for costs was made. The respondent did not however agree to that proposal. When the matter came on for hearing on 23 March 2009, the Police withdrew the application and counsel for the respondent applied for costs. The matter was then adjourned to 24 March 2009 as a result of that application. On that date, the respondent applied for costs on the basis that the prosecution had laid and proceeded with an application for a restraining order in bad faith, as there had been a lack of investigation into the matter prior to the application being laid.
Counsel for the respondent submitted that the respondent should have been spoken to about the allegations prior to the application proceeding as he would have been able to produce documentary evidence that he was not in Port Augusta at some of the times on which it was alleged that he had banged on the fence or alternatively that the police should have attended at the premises to view the fence and note the absence of any scratches appearing thereon.
The learned Magistrate made an order that the police pay the sum of $1,000 to the respondent with respect to the proceedings. In her reasons for making the order for costs, she indicated that she considered this to have been a “defective investigation” and she referred to the normal rule that costs follow the event. She accepted however that the original interim order (which in fact was made by her) was properly made on the basis of the documents filed on 10 November 2008. She was not however prepared to make the order for costs sought by the respondent in the sum of $3,300 and her failure to award the whole of that amount to the respondent is the subject of a cross appeal.
The question of costs in relation to proceedings for a restraining order is governed by the provisions of s 189(2a) of the Summary Procedure Act (1921). That section provides:
(2a) 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.
In White v Police[1]Perry J considered the question of costs which arose by way of an appeal against a refusal by a Magistrate to order costs in favour of a respondent for a restraining order, which was ultimately revoked when the complaint upon which it was based was withdrawn. Perry J said at page 6:
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.
[1] (Unreported Judgment delivered on 19 November 1997) BC 9706341.
He went on to comment that the determination of an appropriate order for costs in that case was not easy to resolve, but finally concluded that the Special Magistrate had not erred in declining to order the prosecution to pay costs.
In this case, the Magistrate accepted that the original interim order was properly made and in my opinion that finding was correct. The Police had been provided with a lengthy statement from the complainant, which established a prima facie case for them to make an application for an interim order. In those circumstances, I do not consider that the police acted in bad faith in laying the complaint, nor that they were unreasonable in not carrying out a more thorough investigation of the matter, prior to the application being lodged. The only issue that exercises my mind is whether the Police acted in bad faith or unreasonably in not conducting a more thorough investigation of the matter prior to continuing the proceedings and thereby withdraw the complaint prior to the date on which the matter was listed for trial.
In making an order for costs, the learned Magistrate appears to have proceeded on the basis that the evidence provided by the solicitor for the respondent was not considered promptly by the Police and that when that was ascertained the proceedings had been withdrawn. According to the affidavit of Mr Nikolic however the reason for the withdrawal did not relate to the capacity of the police to prove the allegations. The matter was simply withdrawn because Ms Pike considered that she no longer required the protection of the order as the matter had resolved.
Ms Kennedy, the solicitor for the respondent, swore an affidavit on 2 June 2009, detailing the work done in preparation for the trial and annexing documents said to be exculpatory of the respondent. As a result of the withdrawal of the complaint, those matters have not been tested in court. Particular weight appears to have been given to the denial by the respondent that he made prank phone calls to the complainant and claims that he was able by evidence to show that he was not the person who made those calls. Those calls do not however appear to have been central to the application. In any event the complainant in her statement indicated that she was not aware of the caller, although by inference it was suggested that they were in fact made by the respondent. That is a matter that would have been appropriately resolved by the trier of fact if the matter had proceeded to trial.
In making the order for costs, the Magistrate appears to have proceeded on the basis of the “normal rule” that costs follow the event. Although in her concluding remarks she referred to the existence of the “special statutory provisions concerning costs, awards and cases concerned with restraining orders”, she does not appear to have specifically turned her mind to the test provided by s 189 (2a). 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 . In this case the police could possibly have done more by way of investigation but that in itself does not amount to bad faith or unreasonableness in the bringing, or the continuation of, the proceedings. The institution of these proceedings and their subsequent withdrawal is explicable on proper grounds.
The learned Magistrate erred in applying the test applicable to civil proceedings and by so doing gave insufficient consideration to the provisions of s 189(2a) of the Summary Procedure Act 1921. The appeal will therefore be allowed. The order for costs made on 24 March 2009 will be set aside. It follows that as a result, the cross-appeal will be dismissed.