Stehbens v Queensland Police Service (No. 2)
[2012] QDC 219
•31 August, 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
Stehbens v Queensland Police Service (No. 2) [2012] QDC 219
PARTIES:
KYM MAREE STEHBENS
(appellant)V
QUEENSLAND POLICE SERVICE
(respondent)FILE NO/S:
21/2011
DIVISION:
Appeal
PROCEEDING:
Appeal against conviction (costs)
ORIGINATING COURT:
Mt Isa Magistrates Court
DELIVERED ON:
31 August, 2012
DELIVERED AT:
Beenleigh
HEARING DATE:
28 February, 2012
JUDGE:
Dearden DCJ
ORDER:
Constable Samantha Lesley James pay Kym Maree Stehbens the sum of $ 3,645.41.
CATCHWORDS:
CRIMINAL LAW – APPEAL – COSTS – where appellant argued that “special difficulty”, “complexity” or “importance” involved on appeal to warrant higher costs award – where decision on appeal was that there was insufficient evidence to convict at the summary trial – as such costs should be constrained to Schedule 2 – Scale of Costs contained in the Justices Regulation 2004 (Qld)
LEGISLATION:
Justices Act 1886 (Qld) ss. 158(1), 158A(2) , 158B, 226, 232(4) and 232A(2)
Justices Regulation2004 (Qld), Schedule 2 – Scale of Costs
CASES:
Stehbens v Queensland Police Service [2012] QDC 132
COUNSEL:
M Hibble for the appellant
C Winlaw for the respondent
SOLICITORS:
Warren Hunter solicitor for the appellant
Director of Public Prosecutions for the respondent
Introduction
The appellant, Kym Maree Stehbens, successfully appealed her conviction for serious assault of a police officer.[1] The issue of costs was reserved and written submissions were provided by the appellant and the respondent.
[1]Stehbens v Queensland Police Service [2012] QDC 132.
The Law
Justices Act1886 (Qld) s. 226 provides (in respect of an appeal under Part 9 of the Justices Act) that:-
“The judge may make such order as to costs to be paid by either party as the judge may think just.”
However, Justices Act s. 232(4) provides:-
“(4) No order as to costs may be made on –
(a) the hearing or determination of an appeal in relation to an indictable offence that was dealt with summarily by justices; or
(b)any proceeding preliminary or incidental to an appeal mentioned in paragraph (a).”
Accordingly, no order as to costs can be made in respect of the appeal. However, this court is not precluded from making a costs order in respect of the Magistrates Court’s proceedings, and “may exercise any power that could have been exercised by whoever made the order appealed against.”[2]
[2]Justices Act s. 225(3).
Pursuant to Justices Act s. 158(1), when a Magistrates Court dismisses a complaint, the magistrate may “by their order of dismissal order that the complainant shall pay to the defendant such costs as to [the magistrate] seem just and reasonable.” However, the magistrate “may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the [magistrate is] satisfied that it is proper that the order for costs should be made.”[3]
[3]Justices Act s. 158A(1).
Justices Act s. 158A(2) then provides:-
“(2) In deciding whether it is proper to make the order for costs, the [magistrate] must take into account all relevant circumstances, including, for example -
(a) whether the proceeding was brought and continued in good faith; and
(b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
(c) whether the investigation into the offence was conducted in an appropriate way; and
(d) whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
(e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
(f) whether the defendant unreasonably declined an opportunity before a charge was laid—
(i) to explain the defendant’s version of the events; or
(ii) to produce evidence likely to exonerate the defendant;
and the explanation or evidence could have avoided a prosecution; and
(g) whether there was a failure to comply with a direction given under section 83A; and
(h) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
(i) whether the defendant was acquitted on a charge, but convicted on another.”
Justices Act s. 158B then provides:-
“(1) In deciding the costs that are just and reasonable for this division, the [magistrate] may award costs only -
(a) for an item allowed for this division under a scale of costs prescribed under a regulation; and
(b) up to the amount allowed for the item under the scale.
(2) However, the [magistrate] may allow a higher amount for costs if the [magistrate is] satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”
The relevant scale referred to in Justices Act s. 158B is, pursuant to Justices Regulation2004 s. 18, the scale contained in Schedule 2 of the Justices Regulation2004.
Although Schedule 2 (1) provides:-
“This scale sets out -
(a) the only items for which costs may be allowed for part
6, division 8 and part 9, division 1 of the Act; and
(b) the amount up to which costs may be allowed for each
item.”,
the provisions of Justices Act s. 158B(2) permit an order for a higher amount of costs if that amount is “just and reasonable having regard to the special difficulty, complexity or importance of the case.”
Discussion
The appellant seeks an order for costs pursuant to Justices Act s. 232A(2) i.e. for a higher amount than that allowed in Schedule 2 of the Justices Regulation 2004, submitting:-
(a) That a charge of stealing also proceeded at the Magistrates Court hearing but was dismissed at the close of the prosecution case;
(b) The charge of serious assault [which was the subject of the appeal] involved complex issues of law;
(c) In particular, the serious assault charge involved special difficulty in various areas of law including s. 24 of the Criminal Code and other legal issues; and
(d) The case also involved a special importance both from a Queensland Police Service and public interest perspective as to the application of s. 24 of the Criminal Code as to police officers acting in the course of their duties and those who are charged with offences in respect to officers carrying out those duties.”[4]
[4]Outline of submissions in respect of costs, pp 2-3.
With all due respect to the submissions on behalf of the appellant, I am not persuaded that there was any “special difficulty”, “complexity” or “importance” involved in the matter. Rather, the appeal succeeded because the learned acting magistrate failed to identify that the appellant’s honest and reasonable, albeit mistaken belief that the complainant was not a police officer, had to be rejected beyond reasonable doubt before the appellant could (or should) have been convicted.
Although I concluded that the learned acting magistrate fell into error, there was nothing especially difficult, complex or important in respect of the Magistrates Court proceedings.
Accordingly, the issue of costs falls to be decided pursuant to the provisions of Justices Act s. 158A(2)(a)-(i) and subject to the constraints of Schedule 2 – Scale of Costs.[5]
[5]Justices Regulation2004 (Qld).
I accept that the proceedings were brought and continued in good faith[6] and that there were no investigation failures[7]; that the investigation was conducted in an appropriate way[8]; but consider that none of the provisions of Justices Act s. 158A(2)(e)-(i) were such that would preclude an order for costs being made in favour of the appellant in respect of the conduct of the Magistrates Court proceedings.
[6]Justices Act s. 158A(2)(a).
[7]Justices Act s. 158A(2)(b).
[8]Justices Act s. 158A(2)(c).
In respect of Justices Act s. 158A(2)(d), I do not consider that the “order of dismissal was made on technical grounds” but rather that there was insufficient evidence to persuade the learned acting magistrate to exclude, beyond reasonable doubt the Criminal Code s. 24 defence. Accordingly, the decision made on appeal was, in effect, that there was “insufficient evidence to convict”.[9]
[9]Justices Act s. 158A(2)(d).
I conclude therefore that the appellant is entitled to an order for costs in respect of the Magistrates Court proceedings, but limited by the provisions of Schedule 2 – Scale of Costs.[10] Accordingly, the costs allowable are as follows:-
[10]Justices Regulation2004 (Qld).
1. Instructions and preparation for the hearing
including attendance on day one of the hearing $1,500.00
2. Attendance on day two of the hearing $ 875.00
3. Counsel’s out of chamber fee (including
accommodation, meals, taxi etc) $ 300.00
4. Counsel’s airfares $ 970.41
TOTAL: $3,645.41
Order
That Constable Samantha Lesley James pay Kym Maree Stehbens the sum of $3,645.41.
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