SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeal: Criminal)
RS v POLICE
[2024] SASC 111
Judgment of the Honourable Justice McDonald (ex tempore)
12 August 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - COSTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - CONDUCT OF PROSECUTOR OR PROSECUTION
This was an appeal against a decision of a Magistrate to decline an application for costs which was initiated following the dismissal of an application to revoke an interim intervention order that the appellant was subject to.
The appellant brings this appeal on the grounds that the Magistrate erred in failing to award the appellant costs for the legal expenses incurred in respect of the continuation of the intervention order application, following the appellant’s acquittal of the major indictable charges in the District Court. The appellant further contends that the prosecution acted in bad faith or unreasonably in bringing and continuing the intervention order proceedings.
The appellant submits that following the continuation of the application, the prosecution proceeded to delay the progress of the matter on the basis that the merits of the proceeding had to be considered and a review of the evidence and transcript from the District Court trial had to be undertaken. As a result of the continuation of proceedings, the appellant sought legal representation, incurring additional legal costs and, given the contended delays, additional travelling expenses to attend such hearings.
In these circumstances, and having been acquitted of the major indictable charges for which he served nearly two years imprisonment, the appellant contends that the application for costs in respect of the intervention order proceedings are justified and should not have been dismissed by the Magistrate.
Held; the appeal is allowed:
1.The prosecution acted unreasonably in continuing to bring the intervention order proceedings following the appellant’s acquittal of the major indictable charges;
2. The prosecution unreasonably delayed the progression of the application;
3. The Magistrate was in error in dismissing the application for costs;
4. The respondent is to pay the appellant the sum of $14,740;
5.The respondent is to pay the appellant’s costs of the appeal in the amount of $750 plus filing fees.
Criminal Procedure Act 1921 (SA) s 189C; Summary Procedure Act 1921 (SA) s 189; Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21; Magistrates Court Act 1991 (SA) s 42; Joint Criminal Rules 2022 (SA) r 191.1, referred to.
White v Police [1997] SASC 6452; Police v McIntosh [2009] SASC 253; House v The King (1936) 55 CLR 499; Wittwer v Police [2004] SASC 226; Lowndes v The Queen (1999) 195 CLR 665; SA Police v Leonard (1995) 64 SASR 390, applied.
RS v POLICE
[2024] SASC 111Magistrates Appeal: Criminal
McDONALD J (ex tempore):
This is an appeal of a decision of a Magistrate sitting in the Whyalla Magistrates Court, to dismiss an application for costs pursuant to s 189C of the Criminal Procedure Act 1921 (SA) (‘the CP…
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CaseChat Overview and Summary
The central issue for the Court was whether the Magistrate had erred in concluding that the prosecution did not act unreasonably in continuing the proceedings after the appellant's acquittal on 6 November 2023. The appellant argued that the prosecution had acted unreasonably by not immediately withdrawing the application upon his acquittal, whereas the prosecution contended that the application required careful consideration due to differing legal standards and the need to consult with the protected person.
The Court examined the Magistrate's reasoning and concluded that there was no demonstrated error in the Magistrate's decision. The Court found that it was reasonable for the prosecution to take approximately 10 weeks to consider the merits of proceeding, given the different legal standards and the necessity to contact the protected person. The Court held that the time taken was not unreasonably long and that the prosecution's actions were explicable on proper grounds.
In light of the above, the appeal was dismissed. The Court found no basis to interfere with the Magistrate's exercise of discretion and upheld the decision not to award costs to the appellant. The appellant was not entitled to any costs incurred in the lower court or on appeal.
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