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 59Magistrates Appeal
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.
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…
Continue reading Police v Pericic
Sign in free to access the full text
- AGLC
- Police v Pericic [2008] SASC 59
- Case
- [2008] SASC 59
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.