Starling v Edmunds
[2012] WASC 14 (S)
•13 JANUARY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: STARLING -v- EDMUNDS [2012] WASC 14
CORAM: McKECHNIE J
HEARD: 27 OCTOBER 2011
DELIVERED : 13 JANUARY 2012
FILE NO/S: SJA 1016 of 2011
BETWEEN: KARL JAMES STARLING
Appellant
AND
MATTHEW EDMUNDS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE JONES
File No :FR 4982 of 2010, FR 4983 of 2010, FR 4984 of 2010
Catchwords:
Criminal law and procedure - Courts and judges - Extraneous material taken into account
Legislation:
Nil
Result:
Appeal allowed
Convictions quashed
New trial ordered
Category: B
Representation:
Counsel:
Appellant: Ms M M In De Braekt
Respondent: Mr M Seaman
Solicitors:
Appellant: Megan In De Braekt
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
McKECHNIE J:
How this matter comes for trial
On 31 March 2010 the appellant came into contact with police outside a Fremantle hotel. As a result, he was charged with assaulting Anthony David Whittaker, a public officer then performing a function of his office. When requested by Matthew Edmunds, a police officer, to supply personal details, namely, name and address, refused to do so, and obstructed Matthew Edmunds, a public officer, in the performance of the officer's function.
After a one‑day trial on 29 November 2010, the magistrate reserved his decision. On 9 December 2010, the magistrate delivered reasons convicting the appellant. The appellant seeks leave to appeal on ten grounds.
A note on procedure
The court's practice direction on outlines of submissions state:
The outline of submissions is to be in point or summary form, rather than being a complete exposition of the contentions advanced. It should not normally exceed five pages in length in the case of an interlocutory hearing, 10 pages in the case of a trial and 20 pages in the Court of Appeal (2.1 8).
The submissions prepared by Ms in de Braekt were 41 pages long and consisted of 257 numbered paragraphs. The respondent's submissions complied with the Practice Direction and numbered five pages.
The appeal was heard on 27 October 2011. It was a very short hearing. After some minor procedural matters wherein Ms in de Braekt enquired what I had read (which was everything) she said:
[The appeal] relies on 10 grounds of appeal, although depending on how your Honour views the first few grounds of appeal, some of the others, especially the first one, may fall away as a result of that. I won't repeat the submissions that are provided there but perhaps I will respond to my learned friend's remarks. Thanks you.
Mr Seaman said:
I stand on my written submissions at the moment, your Honour.
I said:
Very well. There appears to be nothing to respond to, Ms in de Braekt. I will reserve my decision.
Subsequently, my Associate was contacted by Ms in de Braekt who later sent an email:
I respectfully request leave from the court, to file, & serve a very brief, further written outline of submissions on behalf of the Appellant, by tomorrow, (I appreciate tomorrow is officially a public holiday), containing the points I had intended to make orally today in Court in response to the respondent's submissions, which have not yet provided a response to.
I declined the invitation. Mr Seaman's submissions were filed over a week before the hearing. Ms in de Braekt might have used the time in oral submissions by responding but did not do so.
An outline of submissions is intended to be just that: an outline. If a party does not comply with the practice direction and instead files a comprehensive written brief of argument, there is usually little point in lengthy oral submissions. When both parties are content for the judge to decide the matter on the basis of written submissions then they have chosen not to elucidate their submissions any further.
Disposition of the appeal
The evidence in support of each of the charges was largely given by police officers. They were cross‑examined as to similarities in their statements and as to whether they had colluded in making their statements. This was a matter that had to be resolved by the magistrate. Unfortunately, he did so by taking into account material that was not evidence before him and which may or may not be right. What he said was:
During cross-examination and during submissions it was submitted by the defence that firstly during the cross-examination there were highlighted various similarities in relation to words used by the police, length of statements and what was subject of various paragraphs of the police statements. That is the coincidences that some of the police statements were the exact length, same length and some subjects were put in the same paragraph of two separate police officers.
More particularly what was being said is that a couple of the police used the term particularly about Mr Jordan Moor, that he was stood in the middle of the street and others where they were stood somewhere. I have to say that there's been, in my understanding, quite an influx of ex UK policemen to the Western Australian police service or police force. The English language has corrupted some of our police, I have to say. There is a common way that police - English people talk. They used the term he was stood in the doorway, he was stood in the roadway, he was stood here.
Even Jamie Lee Bainbridge the young police constable said the same thing. It seems that - and there's many UK policemen here in Fremantle. Their way of speaking may well have corrupted our pure Australian way of speaking so I don't take much notice in relation to the terminology 'He was stood'. In relation to the similarities between the length of statements, that was purely coincidental. They did agree in their statement in their cross-examination that they had - many of them discussed the incident prior to making their statements but there was some suggestion of some sort of collusion.
I find that I cannot find along those lines and that I find that the evidence given by the police was independent with their own independent recollections. There were some, quite significant in some areas, differences between their evidence-in-chief between the police and so therefore I find that I can accept their evidence as their pure and own recollections (ts 16, 17).
Mr Seaman valiantly tried to justify these comments by the magistrate as a matter of judicial notice.
He submitted that this may have been a state of local affairs, although he carefully conceded that it is wise to advise the parties that local knowledge would be used so they may comment on it - a reference to Cross on Evidence ch 2 [3065] footnote 12.
The submission cannot be accepted. The magistrate's comments go well beyond matters of which judicial notice can be taken. They are in effect his own views on a subject which, if admissible, would probably require expert evidence on sociolinguistics. There is no evidence in the case as to how people speak or the background of any of the individual officers.
The language used by police officers, whether influenced by English police officers or otherwise, is not a matter upon which judicial notice can be taken, whether part of local conditions or not. If it is going to be relied on it is something that must be in evidence before the court can have regard to it.
There was a miscarriage of justice in the magistrate's reference to language:
•First, there is no evidence to support his conclusion.
•Second, there was no opportunity for either party to deal with the matter by way of submission.
Mr Seaman submitted that in the event the magistrate erred, the error is one to which the proviso should apply. However, that is not possible. This case turned upon the credibility of the various witnesses. The magistrate misused his position of advantage in hearing and seeing those witnesses by taking into account extraneous considerations about which there had been no evidence. These considerations were an essential part of his reasoning to a conviction. The whole case turned on findings of credibility. I cannot make such findings solely from the printed page.
There has been a substantial miscarriage of justice and the only proper course is to allow the appeal, set aside the convictions and remit the matter for retrial before another magistrate.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: STARLING -v- EDMUNDS [2012] WASC 14 (S)
CORAM: McKECHNIE J
HEARD: ON THE PAPERS
DELIVERED : 30 AUGUST 2012
FILE NO/S: SJA 1016 of 2011
BETWEEN: KARL JAMES STARLING
Appellant
AND
MATTHEW EDMUNDS
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE JONES
File No :FR 4982 of 2010, FR 4983 of 2010, FR 4984 of 2010
Catchwords:
Successful accused - Costs - Whether costs of lower court proceedings allowable - Quantum - Whether claim excessive
Legislation:
Official Prosecution (Accused's Costs) Act, s 4(1)
Result:
Order for costs for successful accused
Category: B
Representation:
Counsel:
Appellant: No appearance (On the papers)
Respondent: Mr F Carles
Solicitors:
Appellant: Carles Solicitors, Manager of the law practice of Megan in de Braekt
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
ECS v Martin [2012] WASC 51
Mastrangelo v Reynolds [2001] WASCA 347
Serrell v Bryant (Commissioner of State Revenue) (Unreported, WASC, Library No 980170, 7 April 1998)
Starling v Edmunds [2012] WASC 14
McKECHNIE J:
Why this matter is back in court
On 13 January 2012, I handed down my decision in Starling v Edmunds [2012] WASC 14 allowing the appeal, setting aside convictions and remitting the matter for re‑trial.
Counsel for the appellant, Ms in de Braekt, thereupon applied for an order for costs. When it was pointed out that there was no direct entitlement, but there may be an entitlement under the Official Prosecutions (Accused's Costs) Act 1973 (WA), she sought time to file submissions, which I granted.
Despite numerous requests from my associate, it was not until 5 May 2012 that I received an application for costs in the sum of $22,772.90, supported by a schedule. The schedule was in proper form and referred to the Legal Profession Act 2008 (WA) and the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2010 (WA) and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 (WA).
Shortly afterward, Ms in de Braekt was suspended from practice by the State Administrative Tribunal. On 22 May 2012, Mr Carles was appointed as manager of the law practice by the Legal Practice Board. I acknowledge his very useful assistance.
Jurisdiction to make an order for costs
The charges which the appellant faced were official prosecutions, including the proceedings on appeal: Official Prosecutions (Accused's Costs) Act s 4(1).
An accused is successful if his conviction of the charge is set aside (s 4(2)(iv)). An accused who is successful in an appeal court is entitled to an amount of costs for the appeal and in the summary court: s 5(4). There is no relevant disentitling conduct.
The DPP, who represented the respondent, challenged the appellant's entitlement to costs under s 5(3) on the basis that the appeal court did not 'reverse' the decision of the summary court and thus s 5(4) does not apply. In support of this application, the DPP relies on three cases.
Serrell v Bryant (Commissioner of State Revenue) (Unreported, WASC, Library No 980170, 7 April 1998)
On his construction of the Act in its form at the time (Official Prosecutions (Defendant's Costs) Act 1973 (WA)), Parker J held:
The difficulty I perceive in the way of my making an order in respect of the costs of the hearing below arises primarily by the need for the decision below to have been reversed. It appears to me that s 5(4) of that Act is directed to situations such as where a conviction is quashed and an acquittal is ordered on appeal, or of course vice versa. In such situations the order made on appeal results in a reversal of the outcome of the proceedings below. In the present case, however, while it is true that the decision below has been set aside, no acquittal has been ordered. Instead, the complaint is remitted to the Court of Petty Sessions so that the learned Magistrate can complete the hearing according to law. There has not yet been a valid determination of the complaint. In these circumstances it does not appear open to me to make any order with respect to the costs of the proceedings, so far, before the Court of Petty Sessions (4).
Mastrangelo v Reynolds [2001] WASCA 347
In Mastrangelo, the respondent was convicted of dangerous driving causing grievous bodily harm, fined and his licence was suspended for two years.
On appeal to a single judge, the period of suspension was reduced from two years to one year.
Malcolm CJ (Wallwork J & Einfeld AJ agreeing) concluded that the decision of the primary judge did not involve reversing the decision of the learned magistrate. It was simply a variation of penalty by way of reduction [38]. He went on [40] ‑ [41]:
In my opinion, the decisions in O'Dea v Fletcher and Serrell v Bryant are inconsistent with Small v Walker. The two later decisions are to be preferred, as being consistent with the definition of a 'successful defendant' being limited to the circumstances defined in s 4(2) of the Act. This interpretation is also supported by Miles v Orr, unreported; SCt of WA; Library No 950171; 13 April 1995 per Parker J at 2; Williams v Beverly & Ors, unreported; SCt of WA; Library No 980474; 24 August 1998 per Parker J at 5; and Paterson v Steer [2000] WASCA 250 per Miller J at [8].
Because the appeal did not have the effect that the charge was dismissed, withdrawn or struck out, or a conviction imposed upon the appellant quashed, the respondent (then the appellant) was not a defendant who was 'successful' within the meaning of s 4(2)(a), or 'partly successful' within the meaning of s 4(2)(b). It follows, as Miller J concluded in Paterson v Steer at [8], that the relevant provisions of the Act:
'… are inapplicable to a successful appellant whose appeal relates only to sentence, as s 5(2) of the Act provides that a defendant is "successful" for the purposes of that Act if the charge is dismissed, withdrawn, struck out or a conviction is quashed.'
ECS v Martin [2012] WASC 51
The appellant was subject to a charge that was discontinued by police and therefore dismissed. He was a successful accused. An application for costs in the sum of $2,500 was made. The magistrate made an order for costs in the sum of $1,000, an amount which was conceded to be in error. Hall J considered there was no doubt that the appellant was successful in the Magistrates Court. The appeal proceedings related solely to the issue of costs in the Magistrates Court. Hall J concluded that he was not entitled to costs of the appeal, but was entitled to costs in the Magistrates Court.
The cases which interpreted the Official Prosecutions (Accused's Costs) Act s 4(2) in a manner relied on by the DPP provided:
A defendant is successful if the charge is dismissed, withdrawn or struck out or a conviction thereon is quashed.
However, s 4(2)(a) now reads:
An accused -
(a) … is successful if -
…
(iv)his conviction of the charge is set aside.
Under the Criminal Appeals Act 2004 (WA), the Supreme Court has powers on appeal, including the power to 'set aside or vary the decision of the court of summary jurisdiction' and to order that the case be dealt with again by the court of summary jurisdiction: s 14(1)(c), (e).
The clear intention of the Official Prosecutions (Accused's Costs) Act in its present form is to allow an accused to claim costs when the accused is successful either at first instance before the magistrate, or when an adverse decision of a magistrate on a conviction is set aside on appeal, whether or not a re‑trial is ordered.
Decisions of this court prior to the amendment of the Official Prosecutions (Accused's Costs) Act in respect of the construction of s 4 and s 5, are no longer authoritative in the interpretation of the act in its present form.
I hold that because the appellant's convictions were set aside on appeal, he is a 'successful accused' and therefore entitled to costs in the Magistrates Court and in the Supreme Court.
The quantum of those costs
The schedule of costs provided by Ms in de Braekt is as follows:
| Event Description | Item No in Costs Determination | Amount $ |
| 3 appearances before trial in Fremantle Magistrates' Court ('FMC'), including 1 application by the Prosecution to join trials, which was dismissed | 1 | $352.00 x 3 = $1056.00 |
| Application by Defence for disclosure Orders from FMC & subsequent appearance at reasons for decision delivered by Magistrate Tavenar, including issuing of disclosure Orders = total of 2 appearances | 3 1 | $1408.00 $352.00 |
| Preparation of case for trial & first (only) day of trial in FMC | 4 | $6875.00 |
| Attendance at delivery of reasons for decision & sentencing | 7 | $825.00 |
| Disbursement - purchase of transcript of FMC proceedings, to use in appeal | 9 | $673.90 |
| Drafting & filing appeal notice | 23(a) | $429.00 |
| Preparation of Appellant's submissions/case - 20 hours at Junior practitioner rate of $429.00 per hour (submissions were 40 pages long & there were 10 appeal grounds) | 23(b) | $8580.00 |
| Getting up for appeal hearing - only 5 hours in this instance | 23(f) | $2145.00 |
| Attendance at appeal hearing - only 1 hour in this instance | 23(g) | $429.00 |
TOTAL: | $22,772.90 |
In a letter dated 19 June 2012, my associate wrote to Mr Carles relevantly as follows:
Subject to receiving any submissions to the contrary within the next 10 days, his Honour proposes to make an order that the appellant is entitled to costs in the sum of $12,550. His Honour considers that the application by defence for disclosure orders should attract the sum of $429 only but would allow the appearance of $352.
His Honour considers that the preparation of the appellant's case at $8,580 is excessive and unnecessary and should be fully encompassed within the getting up for appeal hearing amount of $2,145. He would allow all other amounts as identified in the schedule supplied by Ms In de Braekt.
The amount of $12,550 was not correct due to an arithmetical error.
Mr Carles responded noting that despite requests, Ms in de Braekt did not provide him with any of her client files and he had been unable to discuss any matters with her. He was going to contact the appellant directly.
On 24 July 2012, Mr Carles further reported that he had received a letter from the appellant's new solicitors, which relevantly provided as follows:
Mr Starling accepts his Honour's position that $12,550.00 is an appropriate costs order in this matter.
In response to the DPP's assertions we are instructed our client is content with his Honour's assessment of $12,550.00.
However, we support Ms in de Braekt's position as set out in her scale of costs that Mr Starling is entitled to costs of both the trial and the appeal pursuant to sections 4 and 5 of the Official Prosecutions (Accused's Costs) Act in the sum of $22,792.90.
Ultimately it is a decision for the Court.
Mr Carles submitted:
His Honour's proposal is that costs be ordered in the sum of $12,550 as opposed to the $22,772.90 claimed by Ms in de Braekt in her schedule. The difference is primarily set out at paragraph 5 of your letter which states 'His Honour considers that the preparation of the appellant's case at $8,580 is excessive and unnecessary and should be fully encompassed within the getting up for appeal hearing amount of $2,145'.
I do not know the extent of the work done by Ms in de Braekt. However, the nature of the work required to have been done by her is largely apparent from the judgment.
I would agree that the claim for $8,580 for preparation of the appellant's case is excessive but submit that some allowance of perhaps $1,000 to $2,000 should be made under that item as preparation and getting up are two separate items under the scale.
Although the appeal was decided on one narrow ground of extraneous material having been wrongly taken into account, Ms in de Braekt was entitled to and presumably did put forward all arguable grounds of appeal on behalf of her client.
The appeal turned on a single point. Despite the complexity with which Ms in de Braekt tried to clothe the case with lengthy grounds of appeal and 41 pages of submissions, the real issues in the case simply did not justify the amount of time that was spent on them, even making allowance for the need for counsel to be cautious in approach.
However, on reflection, I consider that Mr Carles is correct and propose to allow a further sum of $1,000 for the preparation of the appellant's case.
Orders
The accused is entitled to an order under the Official Prosecutions (Accused's Costs) Act in the sum of $14,213.90 made out as follows:
| Item No | Amount $ | |
| Costs Magistrates Court | ||
| 3 Appearances | 1 | $1,056.00 |
| Application for disclosure and appearances | 3 1 | $429.00 $352.00 |
| Preparation for trial | 4 | $6,875.00 |
| Attending for reasons and sentencing | 7 | $825.00 |
| $9,537.00 | ||
| Costs Appeal | ||
| Draft appeal notice | 23(a) | $429.00 |
| Preparation of case | 23(b) | $1,000.00 |
| Getting up | 23(f) | $2,145.00 |
| Attendance | 23(g) | $429.00 |
| $4,003.00 | ||
| Disbursements | ||
| Transcript | 9 | $673.90 |
TOTAL: | $14,213.90 | |
Under the Official Prosecutions (Accused's Costs) Act, Karl James Starling is awarded $14,213.90 as a successful accused.
0
2
1