R v Harrison No. DCCRM-96-443 Judgment No. D3793

[1998] SADC 3983

R v COLIN HARRISON

REASONS FOR DECISION

CRIMINAL
JUDGE KITCHEN

Colin Harrison was tried for the offence that on 28th January 1996 at Edwardstown, he drove in a manner dangerous to the public and thereby caused the death of Manfred Christian Machner.  He was acquitted of that offence but found guilty of the alternative offence of driving in a manner dangerous to the public.

Counsel for Harrison applied for an order that the cost of the transcript of the proceedings in his trial be wholly remitted, the primary submission being that the offence for which he was found guilty is one which would have been dealt with in the Magistrates Court but because he was presented for trial in this Court for an offence of which he was found not guilty, the cost of the transcript is a burden which he should not have to bear.

The transcript fee I am told is $4.50 per page.  The proceedings, ignoring addresses and the summing up, consumed 651 pages, of which a voir dire before the jury was empanelled  produced 178 pages.

The application is made, I presume, pursuant to s.53(2) of the District Court Act which provides:-

"The Court may remit or reduce a fee on account of the poverty of the party by whom the fee is payable or for any other proper reason."

There is no express power in the Supreme Court Act or the Rules to remit or reduce fees, therefore the case to which I was referred by Mrs. Shaw QC is of little assistance, for there Debelle J. relied upon the inherent discretion of the Supreme Court in making his order.

There is however a decision of a judge of this Court upon s.53(2). In R v Skarmoutsos (1996) 188 LSJS 262 it was submitted that it was not just that an accused who has been acquitted should be out of pocket because of a substantial liability for evidence fees. There, as here, the accused was found not guilty of driving in a manner dangerous to the public and thereby causing death, but guilty of driving in a manner dangerous to the public. Lunn DCJ held for reasons with which, with respect, I agree that an acquittal in itself is not a proper reason to enliven the discretion and even if it were the applicant in that case could not show such a proper reason because he had been convicted of the alternative lesser charge.

I would add that the purchase of transcript is a choice a party to proceedings makes.  It is not a fee, like others provided for in the regulations, which, unless remitted or waived, must be paid by a party as an impost on the initiation of or taking a step in, proceedings, so that in my view there is, perhaps, less compelling reason to exercise a discretion concerning a fee for a service which a party chooses to obtain.  However in a criminal trial in particular, and more so where it is one of some length, an accused could be greatly disadvantaged without a transcript of evidence, and so too much should not be made of the fact the fee is one incurred by choice.

The applicant through his counsel further submitted that in addition to using for his defence the equity he and his wife had in their house, their other savings have also been expended for the same purpose.  He and his family (there are two young children) live in rented accommodation the payment for which ($165 per week) and their means of other support comes from the earnings of the applicants wife (about $200 per week) plus such contributions the applicant can make from his earnings for, I understand, occasional work as an interstate driver.  The only substantial asset, it is said, is a motor car which is necessary for the applicant’s wife to go to and from her work.

The poverty of a party does not mean destitution, it comprehends those who have small means and have to go short. In R v Jonas (1996) 185 LSJS 424 the fee for transcript was remitted where the accused had sold his house to meet his legal expenses. That is the case with this applicant but he has also expended his and his wife’s other savings.

If the applicant files within two weeks an affidavit deposing to his financial circumstances, his assets and means as asserted by his counsel, in support of the application, I intimate I will make an order that on account of poverty the fees for 651 pages of transcript be remitted.