Police v ROGERS

Case [2017] SASC 193

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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Police v ROGERS [2017] SASC 193
Case
[2017] SASC 193
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CaseChat Overview and Summary

The case of Police v Rogers involved an appeal against the decision of a Magistrate in the Magistrates Court of South Australia. The appeal was brought by the Police, who sought to challenge the refusal of the Magistrate to award costs to the Police following the withdrawal of a complaint by the complainant. The complainant had withdrawn the complaint after the trial had commenced but before any evidence had been presented. The Police argued that the Magistrate had erred in law in not awarding them costs and that the decision was manifestly inadequate.

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

Vanstone J therefore dismissed the application. I want to be clear that I do not suggest that her Honour’s resolution of the matter before her was erroneous. However, in a final paragraph which is clearly obiter, her Honour said in relation to s 69 of the SPA (which has no application to indictable offences): [29] It is true that a court created by statute might be given power to impose conditions on the termination of a cause, including a prosecution. Section 69 of the SP Act provides an example of such a power. But the proviso to s 69 does not amount to the conferral of a general power to regulate the withdrawal of complaints. Rather, it is a conferral of a power upon the court to impose conditions upon the withdrawal of a complaint after all the evidence has been taken. As Mr Hinton QC, for the respondent, argued, as a matter of statutory construction, the proviso to a clause only qualifies that which precedes it. Apart from giving the court the power to adjudicate the evidence given in support of a complaint, the wording of s 69 recognises that a party may withdraw at any time, but gives the court the power to hedge the exercise of that right, after a point where all the evidence has been heard. (Emphasis added) The argument of the respondent in Collis concerning s 69 which the Judge accepted was novel, with no authority supporting it. The argument was, as I understand it, that in light of the words in s 69 up to the colon, the proviso commencing immediately after the colon should be read such that the words “at any time before the matter has been finally determined …” mean “at any time after the parties and their evidence have been heard and before the matter has been finally determined.” As I understand it, Vanstone J accepted that contention and held that a complainant has a unilateral right to withdraw a complaint at any time after it is laid before the court and that such right is only “hedged” by the court if it is exercised after all of the evidence has been heard (at which time the court may impose conditions upon the withdrawal of the complaint).Overview of criticism of the Collis construction Unfortunately, I simply cannot agree with the Collis construction for a number of reasons, which in overview are as follows. First, the Collis construction predicates or assumes that if there were no s 69 in the SPA, the position would be that a complainant would have an unfettered right to withdraw a complaint after it is laid before a Magistrates Court; it is upon this foundation that it is said that s 69 only affects complaints sought to be withdrawn after all evidence is adduced and final addresses have been heard. In fact, that important assumption is not justified; a survey of authorities clearly demonstrates that it has always been the law that if the matter of withdrawal of a complaint is not addressed by statutory provision,[55] a complaint can only be withdrawn after application to, and with the permission of, the presiding Magistrate. The process is one of implication of a power in a Magistrate to permit such a withdrawal rather than an assumption that complainants have carte blanche to withdraw complaints which are before the court and subject to its jurisdiction.[55] On an assumption that withdrawal is possible at all after a plea has been entered; for many years, and still as at 1921 when the Justices Act 1921 came into effect, this was a live issue.

Decision

Reasons for decision

PEEK J COLTMAN J MAULE J CRESSWELL J WILLIAMS J
The respondent then submits that this appeal is against an interlocutory judgment and that therefore this Court does not have jurisdiction to hear it. I consider this submission to be incorrect for the following reasons.The ex-tempore decision of Perry J in McKelliff v Police On correct analysis, the respondent’s argument effectively depends on the correctness of one ex tempore judgment in 2002, that of Perry J in McKelliff v Police.[5] The appellant there appealed against the quantum of a costs order made by a Magistrate in his favour after a complaint was withdrawn approximately half a day after the trial commenced. Perry J summarised the facts thus:[5] [2002] SASC 269.[2] The appellant was charged on complaint that on 4 November 2000 at Old Noarlunga and other places he rode a motor cycle at speed dangerous to the public, rode at excess speed and failed to stop when requested by the police.[3] The matter in the court below has a somewhat chequered history in that the defendant finally appeared in court on 1 August 2001, after failing to appear on the five previous occasions upon which the matter had been called on for hearing.[4] It appears that there were two further adjournments while the appellant sought legal advice, and two trial dates were vacated while negotiations between the complainant and counsel for the appellant took place.[5] The appellant pleaded not guilty to all five counts, and when it eventually came on for trial on 24 June 2002 the trial ran for just over half a day before the complainant withdrew the complaint, following further discussions with counsel for the appellant.[6] The formal order which was then made by the Magistrate was in these terms:Evidence taken ... matter held for instructions. Complaint withdrawn. Defence application for costs. Costs allowed in the total amount of $1200 payable to Douglas Wardle Trust Account.[7] In his notice of appeal the appellant pleads one ground only, namely “That the award of costs was manifestly inadequate and failed regard to the principles laid down in Haslam v Emu Air”.[8] On the hearing of the appeal, by consent, I received an affidavit of Douglas Wardle, who was counsel for the appellant in the court below, as to the course of the proceedings in that court, with particular reference to the application for costs.[9] It appears from that affidavit that the learned special magistrate was informed that Mr Wardle’s total charges, he being both counsel and solicitor to the appellant, would be $5252.21.[10] The prosecutor opposed the making of an order for costs.[11] In the result, the learned magistrate awarded $400 for preparation and $800 for attendances at the trial, a total of $1200 costs.[12] In his outline of argument, the appellant contends that the order for costs was “paltry and demonstrably inadequate”. Perry J, not the parties, raised the matter of jurisdiction. His Honour stated:[13] Before the appeal came on for hearing, I caused advice to be given to the parties to the appeal that I would be assisted by argument as to whether or not the appeal was competent. I have now received argument on that aspect of the matter, but not on the merits of the appeal. I did not hear the parties as to the merits in view of the fact that I have reached a concluded view as to whether or not the appeal was competent, that view being that the appeal is incompetent.

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].