Sigrid Nilsson v State of Tasmania

[2011] HCASL 146

SIGRID NILSSON
v
STATE OF TASMANIA
[2011] HCASL 146
H1/2011

1. On 26 August 2009, the Tasmanian Court of Petty Sessions (Wood M) made an order dismissing an application by the applicant for costs pursuant to s 4(1) of the Costs in Criminal Cases Act 1976 (Tas) ("the Act"), following the withdrawal of a complaint charging the applicant with disorderly conduct and two assaults. The incident giving rise to the charges related to the applicant's actions in accompanying her mother and assisting her to leave the Royal Hobart Hospital contrary to medical advice. In refusing the applicant's application for costs, her Honour noted the factors under s 4(2) of the Act and said that she accepted evidence from the prosecution that the reasons for discontinuing the prosecution related to compassionate grounds and the penalty likely to be imposed if the applicant was found guilty, and won not because the applicant had established that she was not guilty. Her Honour found that the case was not one where there had been shown to be a fundamental flaw that should have been evident to the prosecution, or where objective evidence positively demonstrated that the prosecution could not have succeeded. Finally, her Honour concluded that whilst there was a real prospect that the prosecution would have failed to establish guilt beyond reasonable doubt if the hearing had proceeded to conclusion, she was not satisfied that this was the only reasonable conclusion open to the Court.

2. The applicant sought review of the Magistrate's order in the Supreme Court of Tasmania.  On 10 March 2010, Evans J rejected all the grounds advanced by the applicant.

3. The applicant appealed to the Full Court of the Supreme Court, raising 12 grounds of appeal and was partially successful on one ground (ground six).  Crawford CJ (with whom Blow and Porter JJ agreed) found that Evans J erred in holding the prosecutor's reasons for withdrawing the complaint, and the adequacy and validity of those reasons, were not relevant circumstances to the decision of the Magistrate to award costs.  Evans J also erred in failing to find that those reasons were invalid and inadequate and should not have been accepted as proper for withdrawing the complaint.  In this regard Crawford CJ observed that the decision of the Magistrate not to look beyond the prosecutor's statement of his reasons for withdrawing the prosecution, without giving the applicant an opportunity to test the statement by cross-examination or by calling other evidence, was a breach of natural justice amounting to reviewable error.  The Full Court ordered, among other things, that the application for costs be remitted for re-hearing by a magistrate.

4. The application to this Court does not involve any substantive question of law justifying a grant of special leave.  The arguments that the applicant seeks to make in this Court can be made on remittal, which is the more appropriate forum in which to advance the arguments sought to be made.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

W.M.C. Gummow	S.M. Kiefel
8 September 2011