SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v ROGERS
[2017] SASC 193
Judgment of The Honourable Justice Peek
21 December 2017
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - PARTICULAR CASES - DECISION AS TO COSTS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - WITHDRAWAL OR STRIKING OUT OF INFORMATION OR COMPLAINT
Appeal against a Magistrate’s refusal to make an order for costs in favour of an unrepresented defendant subsequent to the withdrawal of a complaint against him.
The appellant was charged on complaint with speeding contrary to Rule 20 of the Australian Road Rules and s 79B if the Road Traffic Act 1961 (SA). At the commencement of the trial in the Magistrates Court, and after five hearings had occurred in the matter including a case listing conference, the police prosecutor, without warning to the defendant, applied for permission to withdraw the charge. Without discussion with the defendant, the Magistrate granted permission to withdraw the complaint. The appellant, who was unrepresented throughout the Magistrates Court proceedings and on appeal, then applied for costs, but the Magistrate refused the application on the basis that he was unrepresented and therefore not entitled to legal costs.
The appellant appeals against this refusal. The respondent asserts that this Court lacks jurisdiction to hear the appeal under s 42 of the Magistrates Court Act 1991.
Held per Peek J, allowing the appeal:
(1) This Court has jurisdiction to hear the appeal under s 42 of the Magistrates Court Act 1991.
(2) Whether a costs order is an “interlocutory judgment” within the meaning of s 42(1a) will depend on the facts of the case, including the stage of the proceedings at which the order is made and whether or not the matter to which the costs order relates is being finally disposed of. The costs order made here is not an “interlocutory judgment” because, amongst other reasons, the prosecution was, as a matter of law, unable to lay a further charge subsequent to the withdrawal and the order permitting the withdrawal of the complaint and associated costs order finally disposed of the rights of the parties in the action.
(3) The decision in McKelliff v Police [2002] SASC 269 should not be followed.
(4) The Magistrate fell far short in discharging his obligations to the unrepresented appellant in failing to advise him of his right to either oppose the application to withdraw the complaint or seek the payment of his expenses as a condition of a withdrawal of the charge.
(5) The obiter statement concerning the construction of s 69 of the Summary Procedure Act 1991 in Collis v Magistrates Court (2008) 101 SASR 332 at 338 should not be followed.
(6) The Magistrate erred in interpreting…
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CaseChat Overview and Summary
The legal issues before the court included whether the court had jurisdiction to hear the appeal and, if so, whether the Magistrate's decision to refuse costs was correct. The court had to consider the principles of costs in the context of a withdrawal of a complaint and whether such a decision could be appealed. The court also had to determine whether the Magistrate's reasoning, particularly concerning the interpretation of Section 69 of the Summary Procedure Act, was sound. The court was required to examine whether the Magistrate had applied the correct legal principles in deciding the matter and whether the outcome was justified.
The court found that the appeal was indeed within its jurisdiction and that the Magistrate's decision was not supported by the correct legal principles. The court held that the Magistrate had misinterpreted Section 69 of the Summary Procedure Act, which does not confer a general power to regulate the withdrawal of complaints. Instead, the court clarified that Section 69 provides a power to impose conditions on the withdrawal of a complaint only after all evidence has been heard. The court further determined that the Magistrate had erred in applying an incorrect principle of law, leading to an unjust outcome. Consequently, the appeal was allowed, and the matter was remitted back to the Magistrates Court for reconsideration.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: PEEK J, COLTMAN J, MAULE J, CRESSWELL J, WILLIAMS J
Neither of these important decisions adverse to the respondent were referred to by counsel for the respondent on the appeal. Consideration The gravamen of Perry J’s decision really appears in paragraph [24] of McKelliff reproduced above. Perry J refers to the nolle prosequi, but it must be remembered that the nolle prosequi has always been a creature of the common law relating to the prosecution of offences in the higher courts (where, it may be observed, the thought of an award of costs to an acquitted criminal defendant has been traditionally viewed as anathema). Quasi criminal charges on complaint, on the other hand, have long been a costs jurisdiction and the true analogy, to which Perry J should have referred, was the non-suit of the type discussed in the cases of Coroneo and Svingos, a situation in which the plaintiff was free to bring another action for the same cause. Those decisions strongly confirm that the orders relating to the withdrawal of the complaint together with the Magistrate’s refusal to award any monetary amount to the appellant did indeed dispose of the rights of the parties in the action; they were therefore final orders. Indeed, the only authority cited by Perry J in support of his decision was the judgment of Mullighan J in Sullivan v Police (Sullivan) which Perry J preferred to the earlier judgment of Bleby J in Grey v City of Charles Sturt (Grey). I will refer briefly to those two decisions. In 1999 in Grey, Bleby J held that the Court had jurisdiction to hear an appeal against a costs order made on an adjournment. His Honour stated:[21]The procedure governing the appellant’s appeal, therefore, depends on whether this appeal is classed as an appeal against an interlocutory order or not. In my opinion, it is not. It is an order which operates regardless of the final outcome of the proceedings and imposes a financial liability on the appellant regardless of that outcome. That order may be enforced as any other order of the Magistrates’ Court made in its Criminal Division. It is an order which, although made in the course of proceedings, was not interlocutory in the sense of assisting in the proper resolution of the proceedings. In my opinion, leave is not necessary and the appellant has an appeal as of right.[21] [1999] SASC 224, [19]. In 2000 in Sullivan, Mullighan J was again dealing with an appeal against a costs order made mid-way through the proceedings. His Honour disagreed with the view of Bleby J and stated:[22]I regret that I find myself in disagreement with Bleby J. An order for costs made during the course of proceedings is not a judgment or order which finally disposes of the rights of the parties in the relevant sense. Nor is an order refusing to make an order for costs. All orders of the Magistrates Court are enforceable, including interlocutory orders. Mere enforceability does not convert an interlocutory order into a final order.[22] [2000] SASC 171, [31]. It is unnecessary for me to express a preference as between the differing views of Bleby J and Mullighan J, because the two cases really had no bearing on the decision in McKelliff; and they have no bearing on the decision in the present case. The differences between the factual circumstances in cases such as Grey and Sullivan on the one hand, and McKelliff and the present case on the other hand, are very stark. In both Grey and Sullivan, the appellants had the opportunity to challenge the costs order at the conclusion of those proceedings. Thus Mullighan J in Sullivan stated:[23] … other cases where costs are refused, including costs thrown away by a party during the proceedings, should be decided at the conclusion of the proceedings and should be the subject of an appeal as of right as part of the final order or orders made in the proceedings.Whilst it is to be appreciated that the refusal to make an order for costs may also operate harshly against a party to proceedings in the Magistrates Court, the Legislature has struck a balance between the interests of parties and has prevented appeals from such interlocutory decisions by not granting an appeal by leave pursuant to s 189 of the Summary Procedure Act and has prohibited an appeal by s 42 of the Magistrates Court Act. Proceedings are completed relatively quickly in the Magistrates Court and appeals are heard expeditiously so that the harsh consequences of an erroneous exercise of discretion to refuse costs at an interlocutory stage will not be of long duration. Also, it is likely that Parliament has also recognised the undesirability of the capacity to appeal interlocutory orders of any nature except in the limited circumstances permitted by s 189. It is to be expected that where a Magistrate is not disposed to make an order for costs during the course of criminal proceedings in the Magistrates Court, the application will not be finally disposed of until the completion of the proceedings.(Emphasis added)[23] [2000] SASC 171, [34]-[35].