RS v Police
[2024] SASC 111
•12 August 2024
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 Act’). The application was made by the appellant against the South Australian Police, in the context of a decision to discontinue an application for the confirmation of an interim intervention order.
The Legislation
Section 189 of the CP Act provides the Magistrates Court with a broad discretion to “award such costs for or against a party to proceedings as a Magistrate Court thinks fit”. Four exceptions are carved out from that general discretion in s 189A to s 189D.
Section 189C relevantly reads:
(1)Despite any other provision of this Part, costs will not be awarded against an informant in proceedings for a restraining order unless the Magistrates Court is satisfied that the informant has acted in bad faith or unreasonably in bringing the proceedings.
This section reflects the policy considerations in making costs orders on applications for intervention orders that were discussed by Perry J in White v Police.[1] At the time of that decision, such orders fell under s 189 of the Summary Procedure Act 1921 (SA) (‘the SP Act’) and the discretion as to whether to make such an order was at large. In the context of determining whether to order costs on an application for a restraining order, Perry J observed:[2]
The question then as to what orders should be made as to the costs of the proceedings is not without some difficulty. In the first place, the court should hesitate in yielding to applications for costs orders which might ultimately have the effect of discouraging the police from lending assistance to members of the public who complain of harassment or intimidation. That public policy consideration is a factor which must be borne in mind in the exercise of the discretion.
[1] [1977] SASC 6452.
[2] White v Police [1997] SASC 6452 at 6.
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
On 6 November 2023, when the interim intervention order next came before the Magistrates Court, the appellant made a further application to revoke the order. The appellant had travelled from interstate to attend the hearing. He indicated that he wished the matter to be finalised that day because he had travelled at considerable expense. He initially told the Magistrate that he hoped to catch a bus that left from Whyalla at midday.
The Magistrate adjourned the hearing until 2.30 p.m. to enable the prosecutor to make “enquiries” in order to inform their decision on a position to take on the application. These enquiries involved ascertaining the attitude of the complainant and giving consideration to the evidence that had been given in the District Court.
By the time that the matter resumed in the afternoon, the prosecutor had spoken to the complainant who had expressed some concerns about the application to revoke the interim intervention order. It would appear that on that basis, the prosecutor determined that it was necessary to proof the complainant and “to find out what happened in the District Court…, the exact reasons for the acquittal, whether it was down to the alleged victim’s testimonies and all of that…”.[6] The prosecutor went on to say that he was not in a position to list the application for trial because he did not know what had occurred in the District Court.
[6] 6 November 2023 T6.
After being advised of the prosecution’s position, the Magistrate enquired of the appellant as to whether he intended to obtain a lawyer to represent him at trial. The appellant indicated that he did not believe that he required a lawyer. The Magistrate explained to the appellant that without legal representation, the matter would be further complicated as the appellant would not be permitted to cross‑examine the complainant himself. In those circumstances, it would be necessary for the appellant to provide the Magistrate with a list of questions, who would then ask them of the complainant.
The appellant expressed some concern about the manner in which the proceedings were unfolding. He said:[7]
I understand what your Honour is saying but I don’t plan to attend. It has cost me $2,500 to come over for this, it needs for it to be withdrawn again, to put off to another indefinite day. Your Honour all I would like is for this matter to go away. I am first year law with Honours at Griffith University, 5 years in criminology, criminal justice - this is an absolute disgrace the way this matter has been handled. Her Honour Judge Fuller also said that the way that these proceedings have been delayed and have not been dealt with in a timely manner is also a blight on the system. More importantly, I don’t know what it is going to take, I can provide your Honour right here now there is no offending history. Your Honour could seriously not grant this order on the basis there is no offending history firstly.
[7] 6 November 2023 T8.
The Magistrate advised the appellant that he did not have the power to simply revoke the order and instead listed the matter for a pre-trial conference on 22 December 2023, indicating that on that occasion the appellant could appear by telephone or AVL.
Before the matter was adjourned, the appellant raised further concerns about the delay in the proceedings, the costs that he had incurred up to that point in time and the apparent injustice that he was experiencing.
In that context the Magistrate raised the possibility of the appellant making an application for Legal Aid.
A day or two after this hearing the appellant made an application for legal aid. He was advised by letter dated 21 November 2023 that the application had been refused.
22 December 2023
Subsequent to the pre-trial conference, the appellant engaged a solicitor, who instructed counsel, Mr Aitken. Mr Aitken had represented the appellant at the District Court trial.
On 26 November 2023, the appellant’s solicitor wrote to the prosecution. In that letter they advised that any application to confirm the intervention order would be opposed and invited them to revoke the order. They also confirmed that the November adjournment had been sought to enable the prosecution to have an opportunity to consider the District Court transcript. The prosecution did not respond to that letter, which was sent by email.
At the pre-trial conference on 22 December 2023, the appellant was represented by Mr Aitken, who appeared by telephone. It would appear that by this stage lengthy discussions had taken place between Mr Aitken and the prosecutor.
On this occasion, the Magistrate enquired whether the prosecution would consider withdrawing the intervention order. The prosecutor advised the Court that his instructions were to “bat on at this stage”[8], however, he was awaiting the prosecutor with the conduct of the file to come back from leave so that he could appraise him of the discussions that he had engaged in with the appellant’s counsel “in the hope that there could be some movement, with the hope of possibly withdrawing the matter”.[9] Mr Aitken foreshadowed an abuse of process argument. The Magistrate listed the matter for the argument on 24 January 2024.
[8] 22 December 2023 T3.
[9] 22 December 2023 T3-4.
The Magistrate ordered:
1.Prosecution to supply all statements of the complainant and any other disclosure they intend to rely upon by 5.00pm 10th January 2024.
2.Defence to file an Interlocutory Application for Abuse of Process argument by 5.00pm 17 January 2024.
3.Prosecution to file response to defences outline by 5.00pm 21 January 2024.
24 January 2024
In the lead up to the hearing listed on 24 January 2024, the appellant’s legal representatives undertook appropriate preparation, including the drafting and filing of an outline of argument.
This involved the following sequence of events:
3 December 2023
The appellant’s solicitor sent a follow up email to the prosecution in relation to their failure to reply to the email of 26 November 2023.
6 December 2023
The appellant’s solicitor sent a further follow up email to the prosecution in relation to their failure to reply to the emails of 26 November and 3 December 2023 and made a formal request for brief of disclosure.
7 December 2023
The prosecution replied to the appellant’s solicitor and forwarded an unsigned affidavit of the complainant.
8 December 2023
The appellant’s counsel sent two emails to the prosecution requesting that the full brief be disclosed, and that further consideration be given to pursuing the matter.
11 December 2023
The appellant’s counsel telephoned the prosecution again requesting disclosure. During that conversation, the prosecutor indicated that he had still not read the District Court transcript.
12 December 2023
The appellant’s solicitor again emailed the prosecution outlining in dot points the request for disclosure.
14 December 2023
The prosecution emailed the appellant’s solicitor replying to the request for disclosure.
18 December 2023
The appellant’s solicitor again emailed the prosecution regarding outstanding disclosure.
19 December 2023
The prosecution emailed the appellant’s counsel regarding outstanding disclosure.
19 December 2023
The appellant’s counsel telephoned a prosecution Sergeant and discussed the history of the matter, outstanding disclosure and the potential of a costs order.
8 January 2024
The appellant’s counsel prepared the first draft of the abuse of process outline of argument.
13 January 2024
The appellant’s counsel prepared the second draft of the abuse of process outline of argument.
16 January 2024
Counsel settled the abuse of process outline of argument.
17 January 2024
The abuse of process outline of argument was served on the prosecution.
The prosecution failed to comply with the orders in relation to disclosure and filing a response to the appellant’s written submissions.
24 January 2024
At 7.14am. on 22 January 2024, the prosecution advised the appellant’s legal representatives that the application was to be withdrawn.
On 24 January 2024, counsel appeared for the appellant in person in the Whyalla Magistrates Court. Immediately after the matter was called on, the prosecution advised that they were discontinuing the application to confirm the interim intervention order. On that basis the Magistrate ordered that the interim intervention order be revoked.
The order having been made, counsel for the appellant immediately raised the issue of costs. He had foreshadowed this application in his outline for the abuse of process argument. In that context, counsel advised the Court that there had been attempts to come to an agreement about costs. The prosecutor responded:[10]
There will be no agreement on costs your Honour. We had this first in our court in November, and it has been withdrawn way before trial. We have not abused process. We followed the recommendations of - we had to contact the protected person, as she was in that situation, to advise her that we were recommending withdrawal of the application. We have been nothing but expedient while we have had it.
[10] 24 January 2024 T3.
The Magistrate listed the matter for argument on 13 March 2024 and ordered that any written submissions were to be filed by 5.00pm. on 6 March 2024.
13 March 2024
Submissions were heard on the costs argument on 13 March 2024. In summary, it was the prosecution’s submission that because the words that appear in s 189C of the CP Act are that “costs will not be awarded against an informant in proceedings for a restraining order unless the Magistrates Court is satisfied that the informant has acted in bad faith or unreasonably in bringing the proceedings”,[11] the Court must consider whether the prosecution behaved unreasonably in making the initial application in 2020, when the complainant first made allegations of serious criminal offences.[12] In the alternative it was argued that if the Court accepted the appellant’s argument that “bringing proceedings” included a decision to continue proceedings, there was nothing unreasonable or in bad faith about the time that it had taken for the prosecution to determine to discontinue the application to confirm the intervention order.
[11] Emphasis added.
[12] It was conceded in this Court that this was an incorrect application of the test.
In setting out the procedural history of the matter, the prosecutor advised the Court that despite what had previously been proposed, the prosecution had not in fact read the District Court transcript. The prosecutor explained:[13]
… We have never received the District Court transcript and as such we have never been privy to the reasons for why the defendant was found not guilty which further demonstrates why it was necessary for police, after the fact of the charges being dismissed, to make its own separate assessment of the merits, and a continuation of that intervention order application. So, following that pre-trial conference the protected person was spoken with and prosecution did make the determination it was appropriate to withdraw the intervention application …
[13] 13 March 2024 T4.
When further questioned about why the prosecution did not have access to the transcript, the prosecutor gave a somewhat surprising response:[14]
[The] DPP said they could not provide it to us, we emailed them on 11 December, and they said they do not have a copy of the transcript, it was a jury trial and there was no way of knowing. We did not receive a copy your Honour.
[14] 13 March 2024 T8-9.
This was an unusual submission because, at best, the prosecution was only ever going to be able to consider the transcript of the evidence as, to state the obvious, a jury is not required to provide reasons for their verdicts. Also, the Director always has transcript available from a jury trial; or alternatively there was no reason why the police prosecutions could not have accessed it through the Courts Administration Authority. Be that as it may, despite this being one of the main reasons for the delay in the proceedings, the prosecution had not done what they said they needed to do before determining whether to pursue the application.
It was the appellant’s submission that there was authority from this Court for the proposition that a continuation of a proceeding falls within the ambit of a decision to “bring proceedings”. Further, that the question of unreasonableness had to be considered in the context of the prosecution failing to take up the opportunity to read the District Court transcript, despite having ample time to do so.
The appellant contended that there were also obvious, insurmountable hurdles to the success of the application, namely that the appellant now resides interstate and had not seen the complainant in over four years.
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].
The Court will not interfere merely because it would have exercised the discretion in a different way to the Magistrate.
In Lowndes v The Queen, the High Court observed that:[20]
… a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. That is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.
[20] (1999) 195 CLR 665 at [15].
The ultimate question on this appeal is whether the Magistrate failed to properly exercise his discretion in arriving at a decision to decline the application for costs, on the basis that the statutory test had not been satisfied. Accordingly, the appellant must demonstrate that the Magistrate committed an error of a type that would vitiate the Magistrate’s discretion before the Court is empowered to interfere with the order. It is not enough that this Court would have taken a different view.
Ordinarily an order to not award costs made by a court of summary jurisdiction will not be disturbed unless some error of principle or irregularity in the proceedings is disclosed, or it appears that the amount awarded is manifestly excessive or inadequate.[21] The issue on this appeal, however, does not relate to the broad general discretion to award costs but rather raises the discrete issue of whether the Magistrate was in error in determining that the statutory test had not been satisfied.
[21] SA Police v Leonard (1995) 64 SASR 390 at 394-395 per Debelle J.
The appellant’s submissions
It was the appellant’s submission that the prosecution both “acted in bad faith”[22] and “unreasonably” in continuing the prosecution. It was submitted that the bad faith was evidenced by “the proceedings being purposely adjourned on almost 30 occasions in the mere puff hope that the appellant would be convicted in the Port Augusta District Court. Importantly, this is by no means fair, just, reasonable or conduct in good faith”.[23]
[22] Although the appellant did not rely on the “bad faith” limb of the test in the Magistrates Court, he did so in this Court.
[23] FDN 22, Reply by the Appellant to Defence of the Informant at [6].
The following paragraph summarises the appellant’s argument on why it can be determined that the prosecution acted in bad faith:[24]
I hope this is correctly understood, the appellant submits that bad faith is evident in the actions of the informant in bringing the application at multiple levels. After all, the appellant was arbitrarily arrested without a warrant and handcuffed from behind on the doorstep of his home by six armed police officers in front of his four children, spouse, neighbours and members of the public, charged with both major and minor indictable offences, imprisoned for 572 days, acquitted of any offending, terminated by his employer of 5 years’ service, denied legal representation by the Legal Services Commission with regard to this matter, prohibited from cross-examining evidence at trial without legal representation, denied his parental guardianship rights, denied access to his home and property, denied access to affordable accommodation, had personal property seized without a warrant and damaged and was subjected to comply with strict community provision orders. The appellant submits that his legal counsel’s argument should not have been dismissed, has merit and the informant’s undertakings were unreasonable to say the least.
[24] FDN 22, Reply by the Appellant to Defence of the Informant at [13].
The respondent’s submissions
It was the respondent’s submission that the continuation of the application, after the appellant was acquitted of the major indictable charges, was appropriate in the circumstances, to enable a review and assessment of the prospects of success. In particular, it was necessary for the prosecution to consult with the complainant and undertake enquiries about obtaining the District Court transcript to review the complainant’s evidence and then make an assessment of the prospects of the application succeeding, factoring in the difference in the burden of proof between the two jurisdictions.
The respondent contended that the fact that the trial transcript was not obtained does not amount to unreasonable conduct, given that relevant inquiries were made about its availability. Even absent the transcript, an assessment of the merits of the application still had to be undertaken.
Was the Magistrate in error in declining to make the order for costs?
The appellant is deeply aggrieved by the manner in which he perceives he has been treated by the criminal justice system.
From his perspective, he was arrested and charged, imprisoned for a lengthy period of time, only to ultimately be acquitted by the unanimous verdict of a jury. As a consequence of which the appellant lost his family, his livelihood and his reputation.
It was apparent from his submissions that the appellant is now looking to redress all of these issues. However, this appeal relates only to the very narrow question of whether the Magistrate was in error in failing to award the appellant costs for the legal expenses incurred after 6 November 2023, on the basis that the prosecution acted in “bad faith” or “unreasonably” in bringing or continuing the proceedings.
Having considered the chronology of events and the transcript of the proceedings, there is no evidentiary basis upon which it could be suggested that the prosecution acted in bad faith. The real question that arises for consideration is whether the prosecution acted unreasonably in continuing the proceedings after 6 November 2023.
In order to assess the conduct of the prosecution, it is necessary to consider the post November events in the broader context of the history of this interim intervention order.
As I previously mentioned, the interim order was made ex parte on 21 May 2020. In October 2022, the appellant succeeded in having his four children removed from the order. In April 2023, the appellant made it known to the prosecution that he sought to challenge the order by filing an application for its revocation. Whilst understandably, the Court determined to delay hearing the application until the charges in the District Court had been finalised, the prosecution were on notice that the order was being contested.
It follows that by the time the matter came before the Court on 6 November 2023, an interim intervention order had been made in May 2020 without the appellant having the opportunity to be heard, the appellant had filed an application to revoke the order and had subsequently been acquitted of all charges.
Whilst it can be accepted that the prosecutors with conduct of the proceedings in the Magistrates Court had no involvement in the District Court trial, that does not mean that the events post November 2023 can be divorced from what had come before.
The November date had been fixed on 7 August 2023. It would have been obvious from even a cursory review of the certificate of record that the matter had a protracted history, over the course of which the appellant had made it clear that he was resisting the order. It would also have been evident that the matter had been repeatedly adjourned pending the outcome of the District Court charges. It would have been a relatively straightforward enquiry to ascertain the status quo of those charges before the November hearing.
At the hearing on 6 November 2023, the prosecution were made aware that the appellant had been incarcerated for an extended period of time, had been acquitted of all charges, had made an application to revoke the intervention order over six months earlier, and had travelled at considerable expense to attend the hearing listed on that date. It was incumbent on the prosecution to make all efforts to deal with the matter on that occasion if at all possible.
The opposite occurred. It appears that the prosecution had done nothing to prepare for the hearing, despite there having been numerous previous adjournments. When the Magistrate indicated that he would need some assistance because of the size of the file and his lack of knowledge about the District Court proceedings, the prosecutor responded:[25]
Yes, and I don’t know what that was about, that’s before my time in Whyalla. It may be these people say ‘no, we’ve had enough’, there’s one, two, three, four, five people on this order.
[25] 6 November 2023 T2.
It was left to the appellant to advise the Court that in October 2022 the children had, in fact, been removed from the order.
The prosecutor went on to further confirm his lack of knowledge of the file when he said:[26]
I have no idea why he was acquitted, I have no idea about this file whatsoever, this is the first I’ve every [sic] seen this file. I can do nothing without - - talking to the only protected person on this file and I thank him for letting me know who is protected on this file.
[26] 6 November 2023 T5.
The prosecutor further reiterated his lack of knowledge of the file when he said:[27]
I don’t know anything. I have not read the file. I know nothing about this file.
[27] Ibid.
With respect to the prosecutor, that was not good enough. Given the application to revoke the order had been made many months before, the appellant was entitled to assume, at the very least, the prosecuting authority had some knowledge of the stage the proceedings were at.
As I have already set out, the Magistrate determined to stand the matter over until after lunch, at which time the prosecutor advised him that the complainant had expressed concerns about the revocation of the order and requested further time to consider the application.
Subsequent to this, and no doubt in an effort to be of assistance, the Magistrate made the inquiry of the appellant about whether he wished to obtain a lawyer. The appellant responded, as I have mentioned, that he did not believe he needed a lawyer.
The Magistrate then advised the appellant in the following terms:[28]
Well the problem is, I don’t know if you’re aware of this is that you are not able to cross-examine the protected person directly, a lawyer is allowed to do that, but not a defendant so that makes it a bit more complicated because what would have to happen is that you provide a list of topics to whoever that Magistrate is hearing the trial and it’s the Magistrate who will ask the questions. It can be a bit stilted and unnatural in that sense.
[28] 6 November 2023 T8.
As I said, whilst I fully accept that the Magistrate was attempting to assist the appellant, it would appear that the appellant was left with the impression that it was in his best interests to instruct a lawyer, particularly if the matter was to proceed to a contested hearing.
The hearing concluded with the appellant again protesting the delays caused by the prosecution, he said:[29]
They’ve had three years your Honour up until now and we’re still in the same position.
[29] 6 November 2023 T10.
In terms of legal representation, the appellant said:[30]
I understand, your Honour. I’m thousands of dollars already in the red as a result of spending 572 days in custody as an innocent man. I would like this resolved. If I have to get a lawyer and be at further expense, so be it, otherwise, I’m happy to follow the Magistrates Court procedures.
[30] 6 November 2023 T11.
Again, endeavouring to assist the appellant, the Magistrate raised a suggestion of exploring whether legal aid may be available to assist him.
As mentioned previously, it was after this hearing that the appellant engaged the services of a solicitor who briefed counsel.
The appellant’s solicitor wrote to the prosecution on 26 November 2023, inviting them to withdraw the application. That correspondence was not responded to.
By the time the matter next came before the Court on 22 December 2023, almost a month had passed and the prosecution were on notice that the appellant had obtained legal representation. More than enough time had passed for the prosecution to determine whether to proceed to trial.[31]
[31] There is no evidence before me about when the complainant was spoken to by police, or the reasons for any delay in that taking place.
On that occasion, the appellant’s counsel advised the Court about a number of conversations that he had with two different prosecutors in an attempt to resolve the matter, and made submissions about what had occurred in the District Court resulting in the appellant’s acquittal.
The appellant’s counsel foreshadowed the need to list the matter for an abuse of process argument because of the prosecution’s determination to proceed to trial. He also raised concerns about the failure of the prosecution to disclose relevant material, including the affidavits of the complainant. Importantly, the appellant’s counsel also “put on the record” that costs would be an issue at this hearing.
Following this hearing, there were various communications between the parties that I have set out in the table at [27], culminating with the prosecution advising the appellant’s lawyers on 22 January 2024 of their intention to revoke the intervention order.
There are a number of features about this sequence of events that, in combination, raise concerns about the manner in which the prosecution approached the application. These are:
1.The prosecution had been on notice since at least 6 April 2023 that the appellant had made an application to revoke the interim intervention order. The application had multiple listing in the Magistrates Court.
2.At the hearing on 6 November 2023, the prosecution were completely unprepared to deal with the matter, having no knowledge of the application or its history.
3.At that hearing, the prosecution were put on notice that the appellant had been acquitted and had been put to considerable expense to travel from interstate to Whyalla to attend Court. It also should have become apparent (and relevant to a determination of whether to proceed with the application) that the appellant was now living interstate and had not had contact with the complainant for over four years.
4.Despite the appellant wishing to represent himself, as a consequence of the exchange with the Magistrate, he would have no doubt been left with the clear impression that in order to protect his interests it was necessary for him to engage a lawyer.
5.The 6 November 2023 hearing was adjourned on the basis that the prosecution needed to review the District Court transcript and proof the complainant.
6.The prosecution did not, however, obtain a copy of the District Court. The reason for that is not clear. There is also no evidence before me about why it took so long to proof the complainant.
7.The prosecution failed to respond to the letter sent by the appellant’s solicitor on 26 November 2023.
8.By the time of the pre-trial conference on 22 December 2023, the prosecution were aware that the appellant had instructed not only a solicitor but also counsel.
9.Between 3 December 2023 and 22 January 2024, the prosecution’s response to the correspondence coming from the appellant’s lawyers and the court orders was less than ideal.
Taking into account all of these matters, in the unusual circumstances of this case, I have come to the view that the prosecution acted unreasonably in continuing to bring these proceedings. It follows that the Magistrate was in error in dismissing the application for costs.
I give particular weight to the delay caused on the basis that there was a perceived need to review the District Court transcript, in circumstances in which that never occurred and the inexplicable delay in proofing the complainant. In addition, an unusual feature of this case is that although the advice given by the Magistrate was well intentioned, it would have undoubtedly left the appellant with the impression that he had no real choice other than to instruct a lawyer at further cost.
I have turned my mind as to whether it was unreasonable for the prosecution to continue the application from the 6 November 2023 hearing or some later date. Given, however, the interconnected nature of the events, it is appropriate the order for costs include the entire sum claimed.
I make the following orders:
1.The appeal is allowed.
2.The respondent will pay the appellant the sum of $14,740.
3.The respondent will pay the appellant’s costs of the appeal in the amount of $750 plus filing fees.
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