Police v Pericic

Case [2008] SASC 59

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v PERICIC

[2008] SASC 59

Judgment of The Honourable Justice White

5 March 2008

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW

PROCEDURE - COSTS - SCALES OF COSTS

Respondent acquitted of assault - magistrate ordered that prosecution pay costs in the sum of $11,500 - no reasons provided by magistrate for costs decision - whether failure to provide reasons constituted an error of law - whether magistrate was justified in departing from the scale of costs.

Held:  failure to provide reasons constituted an error of law - appeal allowed - order set aside - matter remitted to the magistrate for further consideration.

Criminal Law Consolidation Act 1935 (SA) s 39; Summary Procedure Act 1921 (SA) s 189; Supreme Court Act 1935 (SA) s 40; Justices Act  1921 (SA) s 77; Supreme Court Rules 1987 R 52.03; Supreme Court Civil Rules 2006 r 281(b); Magistrates Court Rules 1992 r 51, Sch 1, referred to.
Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; T v Medical Board (SA) (1992) 58 SASR 382; Papps v Police [2000] SASC 183; (2000) 77 SASR 210, applied.
Konieczka v Police [2006] SASC 288; (2006) 245 LSJS 458; Hamdorf v Riddle (1971) SASR 398; Pentroth Pty Ltd v Kirschild Pty Ltd [2006] SASC 356; (2006) 96 SASR 129, discussed.
Fordyce v Fordham [2006] NSWCA 274; (2006) 67 NSWLR 497; Ling v Police (1996) 90 A Crim R 376; RSPCA v Gray (Unreported, Supreme Court of South Australia, Mullighan J, 14 August 1998, Judgment No S6792); Haslam v Emu Air Charter Pty Ltd (1998) 200 LSJS 454, considered.

POLICE v PERICIC
[2008] SASC 59

Magistrates Appeal

  1. WHITE J:             This is an appeal against an order by a magistrate fixing the costs to be paid by the prosecution to a defendant who was acquitted of a charge of assault.  The prosecution was ordered to pay costs of $11,500.  It appeals against that order.

  2. As the appeal is limited to a question about costs, it lies only with the permission of this Court.[1]  The respondent did not oppose permission being granted, and I granted that permission at the hearing of the appeal.

    [1]    Supreme Court Civil Rules 2006, r 281(b).

    Background Circumstances

  3. The respondent (the defendant at first instance) is a security officer. The prosecution alleged that on 26 November 2003 she had assaulted the complainant, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). The assault was said to comprise the grabbing of the complainant around her throat and a later kicking of her. The complaint was laid on 17 June 2004 and the matter originally listed for trial on 12 December 2005. A magistrate was not then available and the matter was adjourned for hearing to 14 February 2006. The trial…

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Police v Pericic [2008] SASC 59
Case
[2008] SASC 59
Decision Date

CaseChat Overview and Summary

The case of Police v Pericic involves an appeal against a decision of a magistrate ordering the prosecution to pay the respondent's costs. The respondent, a security officer, was acquitted of assault charges, and the magistrate ordered that the prosecution pay the respondent's costs amounting to $11,500. The prosecution appealed on the grounds that the magistrate failed to provide reasons for the costs decision and that there were no exceptional circumstances to justify the departure from the scale of costs. The appeal was heard by the court, which had to determine whether the magistrate's failure to provide reasons constituted an error of law and whether the magistrate was justified in departing from the scale of costs.

The court held that the magistrate's failure to provide reasons for the costs decision constituted an error of law. The court found that the magistrate's discretion to order costs is not unfettered and that it must be exercised judicially. The court also held that the prosecution did not establish any exceptional circumstances to justify the departure from the scale of costs. The court found that the costs awarded were excessive and that the magistrate's decision was not based on the scale of costs in Schedule 1 of the Magistrates Court Rules 1992. The court concluded that the magistrate's order was affected by the error of law and that the matter should be remitted to the magistrate for further consideration.

The court allowed the appeal and set aside the magistrate's order of 31 October 2007 with respect to costs. The matter was remitted to the magistrate for further consideration. The court emphasised that the magistrate must provide reasons for the costs decision and that any departure from the scale of costs must be justified by exceptional circumstances. The court also noted that the prosecution's failure to object to the lack of reasons at the time of the costs decision did not prevent the appeal from proceeding on that ground. The final orders of the court were that the appeal be allowed, the magistrate's order of 31 October 2007 with respect to costs be set aside, and the matter be remitted to the magistrate for further consideration.

Orders

Orders of the court

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Background

Background to the litigation

As the appeal is limited to a question about costs, it lies only with the permission of this Court.[1] The respondent did not oppose permission being granted, and I granted that permission at the hearing of the appeal.[1] Supreme Court Civil Rules 2006, r 281(b).Background Circumstances The respondent (the defendant at first instance) is a security officer. The prosecution alleged that on 26 November 2003 she had assaulted the complainant, contrary to s 39(1) of the Criminal Law Consolidation Act 1935 (SA). The assault was said to comprise the grabbing of the complainant around her throat and a later kicking of her. The complaint was laid on 17 June 2004 and the matter originally listed for trial on 12 December 2005. A magistrate was not then available and the matter was adjourned for hearing to 14 February 2006. The trial proceeded on that day and the following day. On 15 February, in an ex tempore judgment, the magistrate found the respondent not guilty. The magistrate then made an order that the respondent have her costs of the prosecution. The magistrate directed that the parties endeavour to agree the costs and, in the event of no agreement, gave the parties liberty to have the matter called back on for further argument. The respondent claimed costs, including disbursements and GST, of $16,877.60. Of this, $7,920 was for counsel fees. The prosecution disputed that claim. It offered to agree the costs in the sum of $3,500, pointing out that if the costs were fixed by reference to the scale in Schedule 1 of the Magistrates Court Rules 1992, the respondent’s entitlement would be $3,270. The respondent then applied to have the matter brought back on before the magistrate for argument. The argument on costs occurred on 31 October 2007. Mr Bey, the police prosecutor who had appeared at the trial, made submissions in opposition to the claimed cost order. The magistrate gave a decision later that day. The endorsement on the Magistrates Court file records the order made by the magistrate as follows:HH orders complainant to pay defence costs in the sum of $11,500 for transmission to Starke Lawyers’ Trust Account, GPO Box 1912, Adelaide. There are two irregularities in relation to that order. First, it is common ground that the magistrate gave no reasons at all for fixing the costs in the sum of $11,500. The second irregularity is the way in which the magistrate made his order. The magistrate apparently gave his decision in the absence of the parties and, in relation to the prosecution, simply asked a police prosecutor who was then before him to inform Mr Bey of the outcome. This deprived Mr Bey of the opportunity to seek reasons immediately. Later on 31 October, Mr Bey requested, in an appropriate way, that the magistrate provide formal reasons for his decision. He was told by the magistrate’s clerk that the magistrate did not propose to do so. The magistrate still has not done so.The Grounds of Appeal The prosecution appealed against the magistrate’s order on two grounds. First, the appellant relied upon the magistrate’s failure to give any reasons at all. Secondly, it was submitted that the case did not involve any exceptional circumstances justifying a departure from the scale of costs in Schedule 1 of the Magistrates Court Rules. The Failure to Give Reasons

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Konieczka will bind me, and the magistrate, on any reconsideration of the costs in this case. I haven not heard any argument on whether it is capable of being distinguished or whether, despite the passages quoted above, the discretion, provided it is exercised judicially, continues to be untrammelled. If there is an inconsistency between Pentroth on the one hand, and Konieczka on the other, it is an inconsistency which can be resolved only by the Full Court. I did invite the parties’ attention to this issue but neither requested a referral of the matter to the Full Court. Conclusion Both counsel submitted that the appropriate course, if I was satisfied that the magistrate’s failure to give reasons was an error of law affecting his decision, was to remit the matter to the magistrate for further consideration. In those circumstances, the appeal is allowed, the magistrate’s order of 31 October 2007 with respect to costs set aside, and the matter is remitted to the magistrate for further consideration.

Ratio Decidendi

Legal Principle Established

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