RE SUITORS FUND ACT 1964 (WA); EX PARTE BRAZIER [2002] WASC 243

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 243
Case No:	INS:209/2001	Heard:	15 OCTOBER 2002
Coram:	ROBERTS-SMITH J	Delivered:	15/10/02
No of pages:	11	Judgment Part:	1 of 1
Result:	Leave to withdraw application granted
Category:	A
PDF Version

Parties:	PAUL PHILLIP BRAZIER THE QUEEN
Catchwords:	Criminal law Costs Suitors Fund Jury unable to reach verdict Discharged Application for costs following acquittal on retrial Leave to withdraw Costs in relation to indictable offences Principles to be applied
Legislation:	Suitors Fund Act 1964 (WA), s 12A, s 14
Case References:	Foody v Horewood [2000] FCA 37 Latoudis v Casey (1990) 170 CLR 534 Perry v R (1975) WAR 33 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Wright, Danci and Currie (1992) 77 A Crim R 67 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RE SUITORS FUND ACT 1964 (WA); EX PARTE BRAZIER [2002] WASC 243 CORAM : ROBERTS-SMITH J HEARD : 15 OCTOBER 2002 DELIVERED : 15 OCTOBER 2002 FILE NO/S : INS 209 of 2001 MATTER : Suitors Fund Act 1964 (WA) EX PARTE

PAUL PHILLIP BRAZIER

Applicant

Catchwords:

Criminal law - Costs - Suitors Fund - Jury unable to reach verdict - Discharged - Application for costs following acquittal on retrial - Leave to withdraw - Costs in relation to indictable offences - Principles to be applied

Legislation:

Suitors Fund Act 1964 (WA), s 12A, s 14

Result:

Leave to withdraw application granted

(Page 2)

Category: A

Representation:

Counsel:

Applicant : Ms L Boston

Suitors Fund : Mr N C Monahan

Solicitors:

Applicant : Lisa Boston

Suitors Fund : State Crown Solicitor

Case(s) referred to in judgment(s):

Foody v Horewood [2000] FCA 37
Latoudis v Casey (1990) 170 CLR 534
Perry v R (1975) WAR 33
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Wright, Danci and Currie (1992) 77 A Crim R 67

Case(s) also cited:

Nil

(Page 3)

1 ROBERTS-SMITH J: The application which is now before me is an application for leave to withdraw an application made by Mr Brazier for costs purportedly under s 14 of the Suitors Fund Act 1964 (WA) as a result of his recent acquittal following a retrial in the Supreme Court.

2 Mr Brazier was charged that on 7 October 1999, at a Commonwealth place, namely Perth Airport, he attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another. He was originally tried on an indictment number IND 124/01 with two other accused. The trial was before me, from 22 October to 14 December 2001. Verdicts were returned relating to the other two accused, but the jury was unable to agree in respect of the charge concerning the applicant. As a consequence I discharged the jury in relation to the charge against him and remanded the applicant to the following sittings of this court for retrial.

3 The retrial was held…

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.

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Details

Case: [2002] WASC 243
Decision Date

CaseChat Overview and Summary

The case before Roberts-Smith J in the Supreme Court of Western Australia involved an application by Paul Phillip Brazier for leave to withdraw his application for costs under the Suitors Fund Act 1964 (WA). Brazier had been acquitted following a retrial after the jury had been unable to reach a verdict in his original trial. The central legal issue was whether Brazier was entitled to costs under the Suitors Fund Act following his acquittal on retrial. The court considered the relevant provisions of the Suitors Fund Act and the principles established in previous cases regarding costs in criminal proceedings.

The court examined s 14 of the Suitors Fund Act, which allows for the payment of costs from the Suitors Fund in cases where proceedings are rendered abortive due to the death or illness of a judge, disagreement among jurors, or other reasons not attributable to the fault of the parties. The court noted that s 14(1)(a) applied in this case, as the original trial was aborted due to the jury's inability to reach a verdict. However, the court found that no costs certificate was required under s 14, as the application for costs should have been made directly to the Board, not the court. Furthermore, the court held that if the Board were to grant a direction for payment of costs, the quantum would be determined based on the costs of the first trial, not the retrial. The court concluded that the substantive application was misconceived and could not succeed.

The court granted leave to withdraw the application, noting the inconvenience caused by the late notice of the withdrawal and the failure to file the required documents. The court emphasized the responsibility of solicitors and counsel to ensure cases are properly prepared and to advise the court promptly if a case cannot proceed.

Orders