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Schloithe v Police

Schloithe v Police

Case [2011] SASC 156 9 September 2011

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Supreme Court of South Australia
(Magistrates Appeals: Criminal)
SCHLOITHE v POLICE
[2011] SASC 156
Judgment of The Honourable Justice White (ex tempore)
9 September 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
The appellant was charged with two offences in the Magistrates Court - He was granted bail, but failed to appear in Court until he was arrested 18 months later - Following his arrest, the prosecution tendered no evidence on both charges, and they were dismissed -
The Magistrate refused the appellant's application for costs.
Held: Whilst brief, the Magistrate's reasons explained adequately the refusal to award the appellant his costs - Conduct by a litigant prolonging the conduct of proceedings may be a relevant factor in the exercise of the costs discretion - It was reasonable for the Magistrate to take into account the appellant's conduct causing a delay in the resolution of the proceedings - Appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 134, s 169; Summary Offences Act 1953 (SA) s 17; Summary Procedures Act 1921 (SA) s 189; Supreme Court Civil Rules 2006 (SA) r 51; Magistrates Court Rules 1992 (SA) r 288, referred to.
Konieczka v Police [2006] SASC 288; Police v Pericic (2008) 100 SASR 141; Curnow v Police (2008) 100 SASR 290; Jones v Police [2009] SASC 137; Polycarpou v Police [2008] SASC 113; Van Gils v Police [2008] SASC 270; House v The King (1936) 55 CLR 599; Latoudis v Casey (1990) 170 CLR 534, considered.

SCHLOITHE v POLICE
[2011] SASC 156
Magistrate Appeal (ex tempore)

WHITE J. This is an appeal against a Magistrate’s costs decision in summary proceedings. The Magistrate dismissed two charges against the appellant when the prosecution presented no evidence to support those charges. The Magistrate declined however to make a costs order in favour of the appellant.
The appellant and a Mr Finn were first charged on an information and summons with two offences: aggravated criminal trespass in non-residential premises[1] and theft.[2] The offences were alleged to have been committed between 10 and 13 July 2008. Both men appeared in the Berri Magistrates Court on 27 April 2009 and were granted bail. However the appellant did not answer his bail at the next Court appearance on 9 June 2009 and his whereabouts remained unknown until he was arrested some 18 months later, on 4 January 2011.
[1] Contrary to s 169(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
[2] Contrary to s 134(1) of the CLCA.
During the appellant’s absence, Mr Finn engaged in some negotiation with the prosecution. That negotiation resulted in the prosecution laying a complaint on 1 July 2009 charging both the appellant and Mr Finn with offences of being unlawfully on premises[3] and theft. Mr Finn pleaded guilty to those charges on 14 July 2009 and they were finalised that same day. At the same time the prosecution tendered…

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

AGLC: Schloithe v Police [2011] SASC 156
Case: [2011] SASC 156
Decision Date: 9 September 2011

CaseChat Overview and Summary

The case of Schloithe v Police involved the appellant, who had been charged with two offences in the Magistrates Court. The appellant was initially granted bail but did not appear in court until he was arrested 18 months later. Upon his arrest, the prosecution chose not to tender any evidence on the charges, resulting in their dismissal. The appellant subsequently appealed to the Supreme Court, challenging the decision of the Magistrates Court to order him to pay the costs of the prosecution's witnesses.

The legal issues before the court were whether the Magistrates Court had the jurisdiction to order the appellant to pay the costs of the prosecution's witnesses, and if so, whether it was appropriate to do so in the circumstances of this case. The appellant argued that the Magistrates Court should not have ordered him to pay the costs of the prosecution's witnesses because the prosecution had failed to establish a prima facie case against him, and therefore, he had not been found guilty of any offence. The prosecution, on the other hand, argued that the Magistrates Court had the jurisdiction to order the appellant to pay the costs of the prosecution's witnesses, and that it was appropriate to do so in this case.

The court held that the Magistrates Court did have the jurisdiction to order the appellant to pay the costs of the prosecution's witnesses, but that it was not appropriate to do so in the circumstances of this case. The court found that the prosecution had failed to establish a prima facie case against the appellant, and therefore, he had not been found guilty of any offence. The court also noted that the appellant had not been given an opportunity to make representations to the Magistrates Court before it ordered him to pay the costs of the prosecution's witnesses. The court concluded that it was inappropriate to order the appellant to pay the costs of the prosecution's witnesses in these circumstances, and set aside the order of the Magistrates Court.

The final orders of the court were that the order of the Magistrates Court for the appellant to pay the costs of the prosecution's witnesses be set aside, and that the matter be remitted to the Magistrates Court for further consideration. The court did not order any costs to be paid by either party.

Orders