Police v Murray

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 Regarding the interaction with the Sentencing Act, a majority found that section 189A, enacted later, impliedly repealed section 13 of the Sentencing Act to the extent of any inconsistency concerning costs in these specific circumstances, meaning the Magistrate did not have the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.