Police v SARD - [2010] SASC 296

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SARD
[2010] SASC 296
Judgment of The Honourable Justice Anderson
20 October 2010
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - GENERAL PRINCIPLES
RESTRAINING ORDER UNDER DOMESTIC VIOLENCE ACT
Police appeal against order for costs in proceedings for restraining order - interim order made - complainant refused to attend trial and no other evidence to be called - magistrate dismissed restraining order application - application for costs - whether police acted in bad faith or unreasonably in bringing application - costs awarded - no reasons given - whether magistrate correct in awarding costs.
Held: Magistrate must have acted out of a misunderstanding of the test to be applied - appeal allowed - order as to costs set aside.
Domestic Violence Act 2004 (SA) s 4, s 9(2), s 9(3)(b) and s 19; Summary Procedure Act 1921 (SA) s 189(2a), referred to.
Police v McIntosh [2009] SASC 253; White v Police (unreported judgment) Perry J, 19 November 1997, BC9706341, discussed.

POLICE v SARD
[2010] SASC 296
Magistrates Appeal: Criminal
ANDERSON J.
Introduction

This is an appeal from the decision of a magistrate who ordered costs against the police in proceedings which had been taken out for a restraining order under the provisions of the Domestic Violence Act 2004 (SA).
Background
The police prosecutor, who appeared in the Magistrates Court, sets out the history of this matter in an affidavit. An application for a restraining order had been taken out against the respondent in the Magistrates Court by Ms Ball, his former partner, and the police prosecutor in his affidavit refers to the discussions he had with her prior to the hearing. He was satisfied that there was a reasonable prospect of success.
On the morning of the hearing before the magistrate, the prosecutor was given a letter by Ms Ball’s parents which indicated that she was traumatised and feared that she would be followed from the court room by the respondent or his friends and that she was therefore not going to attend court. The prosecutor advised the magistrate of this when the matter was called on.
The respondent was represented by counsel, Mr Sale. When the prosecutor told the magistrate that Ms Ball was the only prosecution witness and that she would not be attending, the magistrate dismissed the application for the restraining order.
Mr Sale then applied for costs, which was opposed by the prosecutor who also submitted to the magistrate that the police had filed the application for a restraining order in good faith and that on the face of the application there was sufficient merit for the order to be made. Mr Sale also made submissions.
The magistrate made an order for costs against the police in the sum of $2,942.50. He gave no reasons for the award of costs. It is therefore very difficult to work out exactly why it was that the magistrate ordered costs.
The relevant law
A restraining order is available pursuant to the provisions of the Domestic Violence Act, particularly s 4. Section 19 of that Act provides:
19—Relation to Summary Procedure Act
(1)Subject to this Act and the rules, the Summary Procedure Act 1921 applies to a complaint and proceedings under this Act.
Section 189(2a) of the Summary Procedure Act 1921 provides that:
189—Costs
…
(2a)…Costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.
A finding is required pursuant to s 189(2a) of the Summary Procedure Act for an order for costs. Because there are no reasons, there is no indication as to whether the magistrate properly directed himself according to the provisions of the Domestic Violence Act and whether he made the threshold finding required by s 189(2a) of the Summary Procedure Act.
This section was commented on by Nyland J in Police v McIntosh [2009] SASC 253. Her Honour made the following comments at [12]:
[12]In making the order for costs, the Magistrate appears to have proceeded on the basis of the “normal rule” that costs follow the event. Although in her concluding remarks she referred to the existence of the “special statutory provisions concerning costs, awards and cases concerned with restraining orders”, she does not appear to have specifically turned her mind to the test provided by s 189(2a). The purpose of the special provision for costs contained in s 189(2a) was to remove the cost disincentive for people who, as a matter of policy, should not be dissuaded from using the legislation, whether or not those applications were ultimately successful. The public policy discretion consideration discussed by Perry J in White’s case continues to be an important factor which must always be borne in mind in the exercise of the discretion. In this case the police could possibly have done more by way of investigation but that in itself does not amount to bad faith or unreasonableness in the bringing, or the continuation of, the proceedings. The institution of these proceedings and their subsequent withdrawal is explicable on proper grounds.
Her Honour went on to find that the magistrate in that case had erred in applying the test applicable to civil proceedings and by giving insufficient consideration to the provisions of s 189(2a) of the Summary Procedure Act.
In this matter there is no indication at all of what the magistrate took into account and how he directed himself in relation to the test to be applied.
Her Honour referred to the decision of Perry J in White v Police (unreported judgment delivered 19 November 1997, BC9706341). Perry J said at page 6 of the judgment:
The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty. In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation. That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.
The merits of the case
It is therefore necessary to look at the initial complaint and examine its potential merit. The police filed the complaint on behalf of Ms Ball on 7 December 2009 and sought the restraining order. The police relied upon an affidavit of Ms Ball which alleged:
1.A history of violent threats and assaults by the respondent against Ms Ball over a period of years.
2.After Ms Ball left the respondent in November 2009, the threats escalated, including threats to kill Ms Ball, threats to kill her family and also a threat to kill her dog.
3.On 27 November 2009 specific threats by the respondent that Ms Ball would be found in a shallow grave.
Another magistrate granted the restraining order on 9 December 2009. This was granted in the absence of the respondent per s 9(2) of the Domestic Violence Act. The respondent was then summonsed to appear. He indicated that he would challenge the order, and the matter was set for trial. Prior to the hearing, a further order was made enabling the respondent to view various materials which had been subpoenaed by the respondent, including telephone records from Telstra and information from medical practitioners relating to Ms Ball.
The police prosecutor, having assessed the additional information from the subpoenaed material, which did not necessarily support Ms Ball’s affidavit, made an assessment that there was still a reasonable prospect of success.
Submissions
On behalf of the respondent Mr Sale submitted that while no reasons were given by the magistrate, the magistrate heard submissions and read Ms Ball’s affidavit prior to making the order.
Mr Sale submitted that the magistrate must have had the provisions of s 189(2a) in mind at the time, particularly the test of unreasonableness.
He submitted that Ms Ball’s affidavit lacked sufficient detail to warrant bringing the application without further investigation and that the affidavit was intended to be relied upon without any additional evidence from outside parties.
Mr Sale argued that Ms Ball chose to commence proceedings ex parte pursuant to s 9 of the Domestic Violence Act and that this should be taken into account in view of other options available under the Act, ie that the respondent could have been summonsed to appear, and that an interim order was not necessary. The matter was not brought before the court until two working days after Ms Ball’s affidavit was affirmed, which, it was submitted, was ample time to summons the respondent.
Mr Soetratma for the appellant submitted that the magistrate was required to make a specific finding that the police had acted in bad faith or unreasonably in bringing the proceedings, and that without that finding there could be no order for costs. He pointed to the fact that no reasons were given, no express finding was made of bad faith or unreasonableness, and therefore he argued that there was no power in the magistrate to make the order.
Conclusion
In relation to the bringing of the proceedings, it seems to me there can be no question that the proceedings were brought properly on the basis of the information provided by Ms Ball. It was reasonable of the police to take the matter further. There is simply no evidence to show that the police acted either in bad faith or unreasonably.
The police had sworn evidence by way of affidavit from Ms Ball. If that evidence remained unchallenged, it would result in the restraining order being confirmed. There was no evidence to the contrary challenging Ms Ball’s evidence and it was only because of her non-appearance, the provisions of s 9(3)(b) of the Domestic Violence Act and the fact that she was the only witness for the police that the matter could not proceed.
In my view the magistrate must have acted out of a misunderstanding in relation to the test required of him. I must assume that from the absence of any reasons he did not consider it necessary to make a finding that the police had acted in bad faith or unreasonably. It is not possible to find that by implication he must have made that finding.
The question remains as to whether the matter should be sent back for hearing on the question of costs. In view of the amount involved and the likely expense and time that would be occupied in such an exercise, it seems to me that the appropriate order is to allow the appeal and set aside the order made by the magistrate as to costs. I do this because on the facts of this matter I cannot see how a costs order against the police was justified.
That is the order I propose to make. Therefore the order for costs made in the sum of $2,942.50 is revoked.
I will hear the parties as to any other orders.