SIMS -v- KEENE [2014] WASC 248 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 248 (S)
Case No:	SJA:1158/2013	Heard:	ON THE PAPERS
Coram:	CORBOY J	Delivered:	1/10/14
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant ordered to pay the respondent's costs of the appeal to be agreed or taxed
Category:	B
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Parties:	DOUGLAS ARTHUR SIMS JOHN KEVIN KEENE
Catchwords:	Criminal appeals Costs of unsuccessful application for leave to appeal Turns on own facts
Legislation:	Criminal Appeals Act 2004 (WA), s 14(1)(h)
Case References:	Sims v Keene [2014] WASC 248 The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 Wilson v McDonald [2009] WASCA 39 (S)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : SIMS -v- KEENE [2014] WASC 248 (S) CORAM : CORBOY J HEARD : ON THE PAPERS DELIVERED : 1 OCTOBER 2014 FILE NO/S : SJA 1158 of 2013 BETWEEN : DOUGLAS ARTHUR SIMS

Appellant

AND

JOHN KEVIN KEENE

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE S WILSON

File No : PE 24073 of 2013

Catchwords:

Criminal appeals - Costs of unsuccessful application for leave to appeal - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 14(1)(h)

Result:

Appellant ordered to pay the respondent's costs of the appeal to be agreed or taxed

Category: B

Representation:

Counsel:

Appellant : No appearance (on the papers)

Respondent : No appearance (on the papers)

Solicitors:

Appellant : In person

Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Sims v Keene [2014] WASC 248
The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S)
Wilson v McDonald [2009] WASCA 39 (S)

CORBOY J

The application and the result

1 The appellant was charged that, on 29 April 2013, he unlawfully assaulted Peter Innes Jooste, being a person of or over the age of 60 years, contrary to s 313(1)(b) of the Criminal Code (WA). He was convicted of that offence. A conditional release order for a period of 1 month was made.

2 The appellant unsuccessfully applied for leave to appeal. The respondent applied for his costs of the appeal. The appellant opposed that application. I have concluded that the appellant should pay the respondent's costs of the appeal to be agreed or taxed.

The relevant principles

3 Section 14 of the Criminal Appeals Act2004 (WA) provides that the Supreme Court, in deciding an appeal under div 2 of the Act may, among other things, make an order as to the costs of the appeal. The power to award costs is constrained by s 20 of the Act. The limitations contained in that section do not apply to this appeal.

4 In Wilson v McDonald [2009] WASCA 39 (S), Martin CJ (with whom Beech AJA agreed) held that the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that…

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.

Continue reading Sims v Keene

Details

AGLC: Sims v Keene [2014] WASC 248 (S)
Case: [2014] WASC 248 (S)
Decision Date: 1 OCTOBER 2014

CaseChat Overview and Summary

In the case of Sims v Keene, the appellant, Sims, sought to appeal against the decision of a lower court that had found him guilty of criminal offences. The respondent, Keene, opposed the application for leave to appeal, and Sims subsequently sought an order for the costs of the unsuccessful application. The matter was heard in the High Court of Australia, which was required to determine whether Sims should be ordered to pay the costs of the appeal to the respondent.

The primary legal issue before the court was whether an unsuccessful applicant for leave to appeal should be ordered to pay the respondent's costs of the appeal. The court considered the relevant provisions of the law, including the rules governing the taxation of costs in civil proceedings, and the principles that guide the imposition of costs in criminal appeals. The court also examined the circumstances of the case, including the nature of the appeal and the conduct of the parties.

The court concluded that the question of whether an unsuccessful applicant for leave to appeal should be ordered to pay the respondent's costs was a matter that turned on its own facts. The court held that, in appropriate circumstances, an order for costs could be made against an unsuccessful applicant. However, the court also noted that the imposition of costs should be approached with caution, and that the circumstances of each case should be considered carefully. The court found that, in this case, an order for costs was appropriate, and ordered that the appellant pay the respondent's costs of the appeal to be agreed or taxed.

No further orders were made by the court.

Orders

Orders of the court

Appellant ordered to pay the respondent's costs of the appeal to be agreed or taxed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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