Police v Murray

Case [2013] SASCFC 68

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE v MURRAY

[2013] SASCFC 68

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)

3 July 2013

CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS

TRAFFIC LAW - OFFENCES - GENERALLY

TRAFFIC LAW - OFFENCES - PROCEDURE - COSTS

The respondent pleaded guilty to one count of driving with the prescribed concentration of alcohol in her blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“RTA”). She was fined and disqualified from driving; an impounding fee and victims of crime levy were also imposed. Counsel for the respondent invited the Magistrate to waive the prosecution fee of $100 which would otherwise be payable. The Magistrate acceded and declined to make an order for costs in favour of the Police for $100 pursuant to s 189A(2) of the Summary Procedure Act 1921 (SA) (“SPA”). The police prosecutor informed the Magistrate that he was under instructions to always seek that fee. The Magistrate declined to vary his order.

The Police appeal against the Magistrate’s refusal to make the costs order, contending that it was mandatory. The Attorney-General intervenes in support of the position taken by the Police.

Held (allowing the appeal): 

1. Per Kourakis CJ and Gray J, Blue J agreeing: Section 189A(2) confers a bare power on the prosecution, but does not create an obligation to consider waiver of the benefit of the otherwise mandatory costs order (at [33], [94] and [111]).

2. Per Gray J and Blue J: On the proper construction of s 189A(3), no issue arises of:

(a) the lawful exercise of power or discretion by the prosecution (at [103] and [114]), or

(b) abuse of process for the prosecutor to decline to waive the entitlement to a costs order for $100 (at [103] and [115]).

Per Kourakis CJ: Even if the prosecutor was under an administrative duty to consider a request to agree that an order under s 189A(2) not be made, in this case, there was no such request made before the Magistrate made no order as to costs (at [5] and [25]).

3. Per Kourakis CJ and Gray J: Section 189A is not repugnant to the judicial integrity implication of Chapter 3 of the Constitution (at [73] and [92]).

Per Blue J: On the proper construction of s 189A(3), no issue arises of interference with the judicial integrity of the Magistrates Court (at [113]).

4. Per Kourakis CJ and Blue J: Section 13 of the Criminal Law (Sentencing) Act 1988 precludes an order pursuant to s 189A(2) if the Magistrate is satisfied of either of the conditions prescribed by s 13(1) of the Sentencing Act. There was no material before the Magistrate capable of establishing those conditions and therefore the Magistrate did not have the power to decline a costs order (at [21]…

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Police v Murray [2013] SASCFC 68
Case
[2013] SASCFC 68
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by the Police against a Magistrate's decision to decline to order costs against the respondent, Heidi May Murray, who had pleaded guilty to driving with a prescribed concentration of alcohol. The central dispute revolved around the interpretation and application of section 189A of the Summary Procedure Act 1921 (SA), which mandates a costs order of $100 against a defendant found guilty in proceedings prosecuted by a police officer, unless the prosecution agrees otherwise. The Magistrate had imposed a fine and disqualification but made no order as to costs, and the Police appealed this decision to the Supreme Court of South Australia.

The legal issues before the Full Court were whether section 189A(2) of the Summary Procedure Act imposed a mandatory obligation on the Magistrate to order costs against the defendant, and if so, whether the prosecution's consent was a prerequisite for the Magistrate to decline such an order. Further questions arose regarding the interaction between section 189A and section 13 of the Criminal Law (Sentencing) Act 1988 (SA), and whether section 189A was constitutionally valid, specifically in relation to the separation of powers and judicial integrity. The Court also considered whether the Magistrate had the power to decline a costs order in the absence of prosecution agreement, and if the Magistrate's decision constituted an abuse of process.

The Court, allowing the appeal, held that section 189A(2) confers a bare power on the prosecution to agree that a costs order not be made, but it does not create an obligation for the prosecution to consider waiving this benefit. Consequently, in the absence of such agreement, the Magistrate was bound to order the defendant to pay the prosecution's costs of $100. The Court determined that section 189A(3) did not raise issues of lawful exercise of power or abuse of process by the prosecution in declining to waive the costs order. Regarding the interaction with the Sentencing Act, a majority found that section 189A, enacted later, impliedly repealed section 13 of the Sentencing Act to the extent of any inconsistency concerning costs in these specific circumstances, meaning the Magistrate did not have the power to decline the costs order under section 13. The Court also found that section 189A was not repugnant to the judicial integrity implication of Chapter 3 of the Constitution.

The Court set aside the Magistrate's order and ordered that the respondent pay the Police costs in the sum of $100 pursuant to section 189A(2) of the Summary Procedure Act.

Orders

Orders of the court

Held (allowing the appeal):

1. Per Kourakis CJ and Gray J, Blue J agreeing: Section 189A(2) confers a bare power on the prosecution, but does not create an obligation to consider waiver of the benefit of the otherwise mandatory costs order (at [33], [94] and [111]).

2. Per Gray J and Blue J: On the proper construction of s 189A(3), no issue arises of:

(a) the lawful exercise of power or discretion by the prosecution (at [103] and [114]), or

(b) abuse of process for the prosecutor to decline to waive the entitlement to a costs order for $100 (at [103] and [115]).

Per Kourakis CJ: Even if the prosecutor was under an administrative duty to consider a request to agree that an order under s 189A(2) not be made, in this case, there was no such request made before the Magistrate made no order as to costs (at [5] and [25]).

3. Per Kourakis CJ and Gray J: Section 189A is not repugnant to the judicial integrity implication of Chapter 3 of the Constitution (at [73] and [92]).

Per Blue J: On the proper construction of s 189A(3), no issue arises of interference with the judicial integrity of the Magistrates Court (at [113]).

4. Per Kourakis CJ and Blue J: Section 13 of the Criminal Law (Sentencing) Act 1988 precludes an order pursuant to s 189A(2) if the Magistrate is satisfied of either of the conditions prescribed by s 13(1) of the Sentencing Act. There was no material before the Magistrate capable of establishing those conditions and therefore the Magistrate did not have the power to decline a costs order (at [21] and [118]).

Per Gray J (contra): Section 13 of the Criminal Law (Sentencing) Act 1988 (SA) is a general provision which would ordinarily apply to a provision relating to the payment of costs in the criminal jurisdiction, unless a contrary intention is manifest in section 189A(3). The provision enacted at a later point in time, section 189A, has impliedly repealed the provision first enacted, section 13, to the extent that section 13 purports to apply to costs imposed in the circumstances to which section 189A applies. The legislative directive as to costs orders in the circumstances to which section 189A applies is preferred, to the extent of any inconsistency, to the general powers available in the Sentencing Act (at [100]).

5. Per the Court: In the absence of agreement, the Magistrate was bound to order the defendant to pay the prosecution costs (at [33], [94] and [111]).

6. Per the Court: The order of the Magistrate is set aside and the respondent is to pay the Police costs in the sum of $100 pursuant to s 189A(2).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The prosecutorial power in this case can be distinguished from the power in Bell v The Police.[57] The decision in Bell v The Police rests on the combination of features which, in my judgment in that case, effectively empowered the prosecution to dictate to a court, after it had exercised its sentencing discretion, the imposition of an additional penalty which was disproportionate to the offence and would overwhelm the judicial adjudication of the proper sentence.[57] [2012] SASC 188.Conclusion I would allow the appeal and set aside the order of the Magistrate. I would make instead an order pursuant to s 189A(2) that the respondent pay the Police costs in the sum of $100. This is an appeal from a refusal by a Magistrate to order costs against a defendant. Heidi May Murray, the defendant and respondent, was charged on complaint with the offence of driving with a prescribed concentration of alcohol in her blood, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). On 4 February 2013, the defendant entered a plea of guilty. The Magistrate sentenced the defendant by imposing a fine of $1,100.00 and disqualifying the defendant from holding or obtaining a driver’s licence for a period of eight months and three days. An impounding fee and a victims of crime levy were also imposed. The Magistrate declined to impose prosecution costs. The Magistrate did not give reasons for declining to do so. On the appeal, the Solicitor-General appeared for the police and for the Attorney-General as intervener. The question arising on the appeal was whether the Magistrate was required by section 189A(2) of the Summary Procedure Act 1921 (SA) to make an order for costs against the defendant for $100.00. Part 7 of the Summary Procedure Act is headed “Supplementary Provisions” and, inter alia, contains several sections dealing with costs. Before coming to discuss the issues arising on this appeal, it is convenient to set out the terms of sections 189 and 189A of the Summary Procedure Act:189—Costs generallySubject to sections 189A to 189D (inclusive), the Court may award such costs for or against a party to proceedings as the Court thinks fit.189A—Costs payable by defendant in certain criminal proceedings(1)This section does not apply to—(a)a defendant who enters a written plea of guilty in accordance with section 57A; or(b)an enforcement procedure under section 13 of the Expiation of Offences Act 1996.(2)If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—(a)if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or(b)if no such amount is prescribed—$100.(3)If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs). The Magistrate found the defendant guilty in proceedings prosecuted by a police officer. The phrase “finds a defendant guilty in proceedings” in section 189A(2) includes both a finding of guilt following trial and after a plea of guilty. Were it otherwise, it would have been unnecessary for section 189A(1)(a) to have been included. Further, the inclusion of section 189A(1)(a) highlights the rationale for section 189A(2) – it is intended to cover the costs associated with a police prosecutor’s appearance in court.[58][58] See eg Wellington v Police (2009) 105 SASR 215.

Ratio Decidendi

Legal Principle Established

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