POLYCARPOU v Police - [2008] SASC 113

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
POLYCARPOU v POLICE
[2008] SASC 113
Judgment of The Honourable Justice Debelle (ex tempore)
28 April 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT
Costs – award of costs to successful defendant – magistrate ordered that costs be paid in accordance with scale of costs in First Schedule of Magistrates Court Rules 1992 – no justification for departure from an order that costs be paid in accordance with scale – whether magistrate erred in fixing costs according to scale – held, magistrate did not err but had incorrectly calculated costs – appeal allowed.
Road Traffic Act 1961 s 45; Summary Procedure Act 1921 s 189(1); Magistrates Court Rules 1992 R 51.01, R 51.02, R 51.03, First Schedule, referred to.
Curnow v Police [2008] SASC 84, applied.
Hamdorf v Riddle [1971] SASR 398; Ling v Police (1996) 90 A Crim R 376, considered.

POLYCARPOU v POLICE
[2008] SASC 113
Magistrates Appeals

DEBELLE J: This is an appeal against an order for costs made in the Magistrates Court.
On 28 March 2006 the appellant was involved in a chain collision near the corner of North East Road and Nottage Terrace, Collinswood. She was charged with driving a motor vehicle without due attention contrary to s 45 of the Road Traffic Act1961. She pleaded not guilty. The trial was heard by a magistrate on 7 February 2008. He found that the appellant was not guilty.
The appellant applied for an order that the respondent pay her costs totalling $6,071.73. The application was opposed. The magistrate adjourned the application to the following day. After argument on 8 February, the magistrate concluded that an order for costs should be made in favour of the appellant and that those costs should be upon the scale of costs prescribed in the First Schedule. He said:
This is a minor matter with quite straight-forward issues, simple and no complexities of fact, so in my view the scale should apply. The defendant should have costs, applying the scale and inclusive of GST of $3025.
The appellant is dissatisfied with the order that her costs should be limited to $3,025. She has appealed against that decision. The appellant seeks an order for costs in such amount as this Court sees fit.
As this is an appeal against an order as to costs, there is a question whether the appellant must obtain permission to appeal. I examined the question whether permission is required in Curnow v Police [2008] SASC 84 at paragraphs 8-10. For the reasons then expressed, I do not think that the appellant has to apply for permission to appeal. In any event and out of an abundance of caution, the appellant has applied for permission to appeal. The respondent does not oppose the application. An important question in this appeal is whether the appellant is entitled…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading POLYCARPOU v Police

Details

AGLC: POLYCARPOU v Police [2008] SASC 113
Case: [2008] SASC 113
Decision Date: 28 April 2008

CaseChat Overview and Summary

The case of Polycarpou v Police involves an appeal by the defendant against the order of the magistrate concerning the award of costs. The defendant was convicted of a minor criminal offence but subsequently acquitted on appeal. The matter returned to the Magistrates Court for the consideration of costs. The magistrate ordered the defendant to pay costs in accordance with the scale of costs outlined in the First Schedule of the Magistrates Court Rules 1992. The defendant contested this order, arguing that the magistrate had erred in applying the scale without justification. The issue before the court was whether the magistrate had correctly applied the rules in determining the amount of costs to be paid by the defendant.

The court examined the magistrate's decision to apply the scale of costs and noted that the magistrate did not err in the application of the scale, but rather made an arithmetic error in calculating the total amount. The court found that the magistrate had correctly determined that the scale of costs should apply but had miscalculated the amount due. As a result, the court allowed the appeal and remitted the matter to the magistrate for the recalculation of costs in accordance with the scale.

The court's decision underscores the importance of accurately applying the rules concerning the award of costs in criminal proceedings. The magistrate's error in calculation, rather than in principle, led to the appeal being successful. The court's ruling highlights the need for meticulous attention to detail when determining the financial consequences for defendants in criminal cases.

Orders