Starkey v Commonwealth Director of Public Prosecutions (No 2)

[2013] QDC 132

DISTRICT COURT OF QUEENSLAND

CITATION:

Starkey v Commonwealth Director of Public Prosecutions (No 2) [2013] QDC 132

PARTIES:

BRETT DAVID STARKEY
(appellant)

v

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
(respondent)

FILE NO/S:

BD 240/13

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

17 June 2013

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC, DCJ

ORDER:

No orders as to costs

CATCHWORDS:

Costs – where indictable offence charged summarily – complaint dismissed on appeal

Criminal Code 1995 (Commonwealth) s 474.17

Crimes Act 1914 (Commonwealth) s 4G

Justices Act 1886 ss 4, 157, 158, 159, 225, 232(4)(a)

Bell v Carter; Ex parte Bell [1992] QCA 245

Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police [2012] QCA 181

R v Morex Meat Australia Pty Ltd & Doube [1996] 1 Qd R 418

Smith v Ash [2011] 2 Qd R 175

COUNSEL:

Mr B Starkey (Self-represented)

Mr W R Ness (Solicitor) for the respondent

SOLICITORS:

(Appellant self-represented)

Commonwealth Director of Public Prosecutions for the respondent

Introduction

1. By orders made on 31 May 2013 I gave leave to both parties to file, and serve, submissions (if any) on costs by 5 p.m. on 7 June 2013. No submissions were made by either party.  Nevertheless, since it was apparent to me that the complaint at first instance related to an indictable offence that was dealt with summarily by the Magistrates Court, I sought further submissions from both parties to be filed by 4 p.m. on 13 June 2013. The only submissions that were then made were by the appellant. His particulars of “costs” detailed the cost of 8 “lost day(s) of work” (including the day of the appeal hearing) at the rate of $385 per day and “outlays” involving “(motor vehicle) expense, parking, stationary, postage, copying, etc”. Although reference was also made to time spent “preparing (his) submission and defence” and “(e)motional distress”, no monetary amount was ascribed to them.

Relevant State statutory provisions

1. Section 4 of the Justices Act 1886 (“JA”), defines an “indictable offence” to mean an offence which may be prosecuted before the Supreme Court, the District Court, or any other court having jurisdiction in that behalf, by indictment in the name of the Attorney-General or other authorised officer.

1. Section 157 of the JA states that, in all cases of summary convictions and orders “including such a conviction for an indictable offence”, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.

1. Section 158(1) of the JA states that, when justices, instead of convicting or making an order, dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

1. Section 159 of the JA states that the sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction.

1. Section 225(1) of the JA states that, on the hearing of an appeal, the Judge may confirm, set aside or vary the appealed order or make any other order in the matter the Judge considers just. By s 225(3), for s 225(1), the Judge may exercise any power that could have been exercised by whoever made the order appealed against. Section 225(4) states that an order made under s 225(1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.

1. Section 232(4)(a) states that no order as to costs may be made on the hearing or determination of an appeal “in relation to an indictable offence that was dealt with summarily” by justices.

Costs at first instance (determined on appeal)

1. Although s 158 of the JA does not specifically refer to the summary determination of an indictable offence – unlike s 157 – it seems unlikely that s 158 would be interpreted any more narrowly than s 157 on this aspect. For instance, it does not contain the restriction that s 232(4) has of explicitly denying costs for an indictable offence dealt with summarily. There is nothing in Smith v Ash[1] which throws light on this issue. The closest that any judgment comes – and it is not one which involves any consideration of an indictable offence – is the statement by Chesterman JA that s 158 deals “with costs which may be awarded against a complainant when a complaint is dismissed”. Quite obviously, in context, that simply might be taken as a statement of what the section says in its own words.

   [1] [2011] 2 Qd R 175.

1. From Smith v Ash it is clear that an order for costs at first instance in an appeal such as this is a final order and therefore falls within the term “appealed order” which appears in s 225 of the JA. 

1. What is not clear from s 225 of the JA is whether the restrictions that (explicitly) s 159 of the JA and (implicitly) s 158 of the JA impose – described by Fraser JA in Smith v Ash as the “technique of making the costs order an aspect of the substantive order” – have the same effect when such orders are made for the first time on appeal. If they do, then clearly Bell v Carter; Ex parte Bell[2] dictates that any costs order is to be made as part of the order for dismissal: at folios 4-5.

   [2] [1992] QCA 245.

1. In this particular case it matters not because Merrin v Commissioner of Police; Merrin & Anor v Commissioner of Police[3] has held that a self‑represented litigant at first instance is limited to the costs of filing, and other court, fees: see McMurdo P (summarising the extensive reasoning of North J, with whom Henry J agreed), at [2]. North J specifically considered whether first instance “costs” would permit the inclusion of an allowance for costs for travelling expenses and other costs and expenses incurred by self-represented litigants in attending upon the Court and in preparation of the defence of the charges brought against them: at [31]. With especial reference to the unrecoverability of “costs in respect of time lost by (the self-represented litigant) in preparing and conducting his case” (at [29]), North J held that the relevant provisions precluded costs other than those “limited” to “filing and other Court fees”: at [24], [25] and [39].

   [3] [2012] QCA 181.

1. In this case, there is no evidence at all that the appellant – the defendant at first instance – ever incurred any costs involving “other” court fees, much less filing fees. What he has claimed is outside what is allowable.

1. Thus, with respect to the matter at first instance, there can be – and ought to be if the circumstances otherwise permitted – no order as to costs. 

Costs on appeal

1. The Federal offence under s 474.17(1) of the Criminal Code 1995 (Commonwealth) was an indictable offence within the meaning of that term as defined in s 4 of the JA, relying on the definition of “indictable offences” in s 4G of the Crimes Act 1914 (Commonwealth) and the provision of 3 years imprisonment as punishment under s 474.17, there being no contrary intention appearing.

1. The resolution of the costs on appeal is much easier. As already noted, s 232(4) prohibits any order as to costs on the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by Justices.

1. Although the respondent is not expressly referred to in s 4 of the JA, on the authority of R v Morex Meat Australia Pty Ltd & Doube[4] it covers the respondent in this case.

   [4] [1996] 1 Qd R 418.

1. From the background that I have outlined above, that particular provision has been triggered. If so, then the only order that can be made is that there be no order as to costs.

Summary

1. Thus, both with respect to first instance costs and appeal costs, no orders can, or are, to be made.