Sims v Keene
[2014] WASC 248 (S)
•1 OCTOBER 2014
SIMS -v- KEENE [2014] WASC 248 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 248 (S) | |
| Case No: | SJA:1158/2013 | ON THE PAPERS | |
| Coram: | CORBOY J | 1/10/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appellant ordered to pay the respondent's costs of the appeal to be agreed or taxed | ||
| B | |||
| PDF Version |
| 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 costs should ordinarily follow the event. The Act should be construed as conferring a general and unconstrained discretion as to costs (subject to s 20). The discretion is to be exercised by having regard to all relevant circumstances, including the public interest. See also The House of Relocators Pty Ltd v Ginbey [2014] WASCA 94 (S) [10].
The background to the prosecution
5 There is a history of conflict and acrimony between the appellant and the complainant. That history provided the context within which the assault occurred. There was a confrontation between the appellant and the complainant when the appellant sought to serve some court documents on the complainant. The appellant eventually threw the documents at the complainant. A clip holding the documents together grazed the complainant's elbow, drawing a small amount of blood.
The appeal
6 The appellant alleged by his proposed grounds of appeal that, among other things:
(a) the complainant had instigated the incident - first, by wrongfully refusing to accept that the documents had been properly served prior to the assault and second, by abusing and provoking the appellant;
(b) the magistrate had erred by not finding that the complainant had acted unlawfully and that the appellant had been a victim of the complainant's improper conduct.
7 It was observed in refusing leave to appeal that the appellant had misconceived the notion of provocation for the purpose of s 246 of the Criminal Code. Further:
It was apparent from his oral submissions that the appellant had difficulty in divorcing the criminal proceedings heard and determined by the magistrate from the extensive civil litigation subsisting between himself and the complainant and entities with which they had been associated. That was, perhaps, understandable in the sense that the incident was a further manifestation of the extreme animosity between the appellant and the complainant. However, the appellant had difficulty in accepting that he was the person who had been charged and that the purpose of trial was to determine whether he was guilty of the charge that had been made. He appeared at times to consider that the trial was merely a vehicle by which the complainant's conduct (as perceived by the appellant) could be exposed and sanctioned. The complainant's conduct was, of course, only relevant to the extent that it raised issues of provocation, self-defence and credibility. Those issues were considered and determined by the magistrate [48].
- (Sims v Keene [2014] WASC 248.)
8 The balance of the proposed grounds of appeal challenged findings made by the magistrate about some of the circumstances surrounding the assault and the sentence that was imposed (the allegation being that the magistrate ought to have released the appellant without imposing a sentence under s 46 of the Sentencing Act 1995 (WA)).
The appellant's submissions on costs
9 The appellant's submissions on costs continued to reflect his difficulty in accepting the nature and purpose of the criminal proceedings in which he had been involved. He contended that the appeal raised a public interest: broadly stated, to expose the unlawful conduct of the complainant and the failure of the police to charge him with committing an offence. He further contended that he had suffered as a consequence of the complainant's conduct (appellant's submissions on costs, pars 1, 3 and 5).
10 The appellant raised two other points on the question of costs: first, that he had been adversely affected personally and financially by his various disputes with the complainant and second, he had been unrepresented and lacked knowledge about legal proceedings.
Conclusion
11 The appellant's proposed grounds of appeal did not raise any question of public interest or importance. Some of the proposed grounds concerned matters of fact or, in relation to the sentence imposed, a matter of discretion involving factors peculiar to the offence and the appellant. The remaining grounds proposed by the appellant concerned the complainant's conduct and the alleged failure of the magistrate to inquire into, and make findings about, matters that were not relevant to the determination of the charge alleged against the appellant.
12 In my view, there is no reason why the respondent should bear his costs of the appeal given the subject matter of the proposed grounds and the fact that leave to appeal was refused on each ground. Costs should follow the event. The fact that the appellant may have suffered personally and financially from his involvement in various legal proceedings with the complainant does not provide a reason for why the respondent should bear his costs of this appeal.
13 The respondent filed a draft bill of costs with his submissions. The appellant made no submissions regarding the amount claimed. It was not clear whether that was intentional; the directions for the filing of submissions on the question of costs did not expressly refer to the possibility that the respondent would file a draft bill. It is, of course, desirable that costs for matters such as this be fixed as expeditiously and economically as possible. However, the appellant is entitled to a fair opportunity to contest the amounts claimed by the respondent. Accordingly, I will not fix the costs to be paid by the appellant. Rather, the appellant shall be ordered to pay the respondent's costs of the appeal, such costs to be agreed or taxed.
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