RS v Police

Case [2024] SASC 111

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 111

Magistrates Appeal:   Criminal

McDONALD J (ex tempore):

  1. 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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RS v Police [2024] SASC 111
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[2024] SASC 111
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CaseChat Overview and Summary

In this matter, the appellant sought an order for costs against the police following a lengthy and ultimately unsuccessful application for an interim intervention order. The case was heard and determined by the Supreme Court of South Australia, where the Magistrate had previously dismissed the application for costs. The appellant now appeals the Magistrate’s decision, seeking an award of costs.

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.

Orders

Orders of the court

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Background

Background to the litigation

In Police v McIntosh,[3] Nyland J was also required to consider the question of an application for costs arising out of an application for an intervention order. By that time, there had been an amendment of the SP Act by the introduction of s 189(2a), which was in almost identical terms of s 189C of the CP Act. Nyland J discussed the purpose of the new section against the history of the observations of Perry J in White. Her Honour said:[4]… 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 of itself does not amount to bad faith or unreasonableness in bringing, or the continuation of the proceedings. The institution of these proceedings and their subsequent withdrawal is explicable on proper grounds.[3] [2009] SASC 253.[4] Ibid at [12].Background On 17 May 2020, the appellant was arrested and charged with serious offences of domestic violence. The complainant was the appellant’s wife. As a result of these allegations, an application was made for an interim intervention order.[5] That order was made on 21 May 2020 in the absence of the appellant. Initially, the complainant and the four children of the marriage were listed as protected persons. [5] Intervention Orders (Prevention of Abuse) Act 2009 (SA) s 21. On 31 October 2022, following a successful application by the appellant, the four children were removed from the interim intervention order, leaving the complainant as the sole protected person. On 18 April 2023, the appellant filed an application to revoke the interim intervention order as it remained in respect of his wife. He did so without the assistance of a lawyer. That application came before the court on 27 April 2023. The prosecution opposed the application. The application was dismissed and further consideration of the intervention order was adjourned until 7 August 2023 to await the outcome of the District Court trial. On that date, there was a further adjournment of the application to 6 November 2023 as the District Court trial had still not taken place. Whilst the appellant was in custody, the hearings in relation to the intervention order were adjourned on 17 occasions. The majority of these were on the basis that the determination of whether the interim intervention order would remain in place needed to await the outcome of the charges in the District Court. On 11 September 2023, the appellant was acquitted of the various charges against him by unanimous verdict of a jury. He had remained in custody since his arrest, resulting in him spending a lengthy period of time in gaol.6 November 2023

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Magistrate reserved his decision until 8 April 2024.The Magistrate’s decision On 8 April 2024, the Magistrate dismissed the application for costs. Whilst the Magistrate accepted that the reference to “bringing proceedings” should be read as meaning “bringing and continuation of proceedings”, his Honour concluded that the prosecution had not acted unreasonably in continuing with the proceedings after 6 November 2023. The Magistrate found that on 6 November 2023 it had not been unreasonable for the prosecution to ask for time to consider the merits of proceeding, particularly given that there are different considerations that apply to the disposition of a criminal matter (beyond reasonable doubt) compared to principles applying to an intervention order (on the balance of probabilities).[15] The Magistrate noted that the time between that hearing and the occasion on which the application was withdrawn was approximately 10 weeks and observed “it is not surprising that the prosecution would need time to contact the protected person and consider their position. The time to do this was not unreasonably long”.[16][15] Reasons for Decision at 4.[16] Reasons for Decision at 4.The appeal The appellant seeks “a lump sum amount of $14,740 (including GST), plus appeal filing fees, plus damages”. The manner in which the figure of $14,740 is arrived at is set out in a Schedule that was attached to the written submissions prepared by the appellant’s counsel for the costs argument in the Magistrates Court.[17] That figure represents the amount that the appellant was charged by his legal representatives in the lower court subsequent to 6 November 2023. This is significantly higher than provided for in the Magistrates Court Costs Scale.[17] FDN 8, Appellant’s Application for Costs Order. In the event that I determine to allow the appeal, there would be no reason to award any less amount than the costs the appellant has incurred. He would also be entitled to his costs on this appeal.The nature of the appeal This appeal is governed by s 42 of the Magistrates Court Act 1991 (SA) and Chapter 9, Part 3 of the Joint Criminal Rules 2022 (SA) (‘Rules’). Appeals from a Magistrate to a single Judge of the Supreme Court are by way of a rehearing pursuant to r 191.1 of the Rules. In order to interfere with the exercise of a sentencing discretion, there must be a demonstrated error in the kind described in House v The King.[18] The approach to be adopted was summarised by White J in Wittwer v Police:[19]The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or if it has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise a discretion properly. … [18] (1936) 55 CLR 499.[19] [2004] SASC 226 at [16].

Ratio Decidendi

Legal Principle Established

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