Sullivan v Police

[2000] SASC 171

SULLIVAN  v  POLICE
[2000] SASC 171

Magistrates Appeal:  Criminal

1. MULLIGHAN J       In the course of proceedings in the criminal jurisdiction of the Magistrates Court, a learned Magistrate refused the application of the appellant for an order for his costs thrown away when the trial was adjourned.  The appellant appeals from that decision.

2. The appellant was charged on complaint made on 17th August 1999 that he assaulted a woman on 8th May 1999. The matter first came on for hearing at the Magistrates Court at Murray Bridge on the return date on 20th September 1999 and again on 18th October 1999 when the Court was informed that the solicitor acting for the appellant had not been able to obtain instructions as to the allegations made in the police apprehension report as the appellant had been working interstate. Presumably the Court was informed on this occasion that the charge would be contested because the matter was adjourned to 6th December 1999 for a pre-trial conference so that the parties could comply with obligations as to pre-trial preparation pursuant to the Magistrates Court Rules 1992.

3. On 17th November 1999 the solicitors for the appellant wrote to the prosecution section of the respondent at Murray Bridge for various purposes, including the making of a request for production of particular documents and photographs in the event that prosecution of the charge was to proceed. The documents sought were a copy of all prosecution witness statements, whether or not the prosecution intended to call them, the record of the police interview of the appellant, the police incident report, the notes of a Doctor Kerrigan and copies in colour of the photographs of the alleged victim which had been mentioned in the police apprehension report. The prosecution was asked to produce these documents and photographs before 6th December 1999.

4. On that day the pre-trial conference was held, over which another Magistrate presided. A police prosecutor and the solicitor for the appellant attended. The solicitor informed the Magistrate that he had not received the police incident report, the copies of the photographs and a copy of the notes of Dr Kerrigan. The Magistrate expressed the view that as the trial could not be listed for hearing before March 2000, the solicitor would have ample time to pursue the prosecution for the documents and photographs before the date of the trial. There is a dispute as to what was then said to the Magistrate about the likelihood of the requests being answered, but as it is a matter of no significance it is unnecessary to mention the allegations and denials about that matter. The Magistrate made an order that the documents and photographs requested by the appellant be given to his solicitor by the prosecution on or before 18th February 2000 and listed the matter for trial on 15th March 2000.

5. On 10th December 1999 a prosecutor sent a memorandum by facsimile transmission to the solicitor for the appellant acknowledging receipt of his letter of 17th November 1999 and the order made by the Magistrate for production of the documents and photographs.  He advised that he had instructed the investigating police officer to forward “that further evidence” and that when it was received, he would forward copies to the solicitor.

6. The solicitor for the appellant briefed counsel, Mr Kane, to appear at the trial. Mr Kane also appeared for the appellant on the hearing of this appeal.  On the day before the trial was due to commence, or thereabouts, Mr Kane spoke to Sergeant Capper of the prosecution section of the respondent at Murray Bridge who was to be the prosecutor at the trial and asked if the notes of Dr Kerrigan and the copies of the photographs were available. Sergeant Capper said that he did not have them but he would try to provide them to Mr Kane before the commencement of the trial. Mr Kane reminded Sergeant Capper of the order made by the Magistrate which has been mentioned and told him that because the order had not been complied with, he would be seeking an adjournment of the trial and an order for costs. He explained that the documents and photographs were required before the trial to enable advice to be obtained from expert medical practitioners, presumably about the nature and possible causes of injuries alleged to have been suffered by the victim.

7. Mr Kane attended before the learned Magistrate on 15th March 2000, the day the trial was to commence. He asked Sergeant Capper to produce the documents and the photographs. Sergeant Capper told him that he would be able to provide Dr Kerrigan’s notes at some time during the day but that the photographs were not available as they had not “come out”, but that he had other photographs which depicted the injuries of the alleged victim and which had been taken by the daughter of the alleged victim. He said he would seek to rely upon them.

8. The matter was called on before the learned Magistrate. The position regarding the documents and photographs was explained to her and Mr Kane applied for an adjournment of the trial which was granted. In answer to a question asked by the learned Magistrate, Mr Kane informed her that he was not aware of any steps having been taken by his instructing solicitor to obtain the documents and photographs after the date for compliance with the order had passed.

9. The learned Magistrate said that she refused the application for costs “as both parties are equally culpable for failure of the trial to proceed”. She went on to say that the trial date had to be vacated due to the failure of the prosecution to comply with the orders made on 6th December 1999 and also the failure of the defence to follow up that non compliance.

10. The sole ground of appeal is simply that the learned Magistrate erred in refusing the application for costs.

11. The respondent contends that this appeal is incompetent on the basis that at this stage of the proceedings in the Magistrates Court, there is no right of appeal.

12. The power to order costs in proceedings of this nature is to be found in s189 of the Summary Procedure Act 1921. The provisions of the section relevant to the present proceedings are:

13. “s189      (1)         Subject to this section, the Court may award such costs for or against a party to proceedings as the Court thinks fit.

14. (2)    Costs will not be awarded against a party to a preliminary examination of an indictable offence unless the Court is satisfied that the party has unreasonably obstructed the proceedings.

15. (2a)  Costs will not be awarded against a complainant in proceedings for a restraining order unless the Court is satisfied that the complainant has acted in bad faith or unreasonably in bringing the proceedings.

16. (3)    If proceedings are delayed through the neglect or incompetence of a legal practitioner, the Court may -

17. (a)     disallow the whole or part of the costs as between the legal practitioner and his or her client (and, where appropriate, order the legal practitioner to repay costs already paid);

18. (b)    order the legal practitioner to indemnify his or her client or any other party to the proceedings for costs resulting from the delay;

19. (c)     order the legal practitioner to pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted.

20. (4)    If proceedings are delayed through the neglect or incompetence of a prosecutor who is not a legal practitioner, the Court may order the Crown, or, where the prosecution is brought on behalf of a body that does not represent the Crown, that body, to indemnify any party to the proceedings for costs resulting from the delay.

21. (5)    If proceedings are unreasonably obstructed by a party or a witness, or proceedings are delayed through the failure of a party or a witness to appear before the Court when required to do so, the Court may make either or both of the following orders:

22. (a)     an order that the party or witness indemnify any party for costs resulting from the obstruction or delay;

23. (b)    an order that the party or witness pay to the Principal Registrar for the credit of the Consolidated Account an amount fixed by the Court as compensation for time wasted in consequence of the obstruction or delay.

24. (6)    Before making an order under subsection (3), (4) or (5), the Court must inform the person against whom the order is proposed of the nature of the proposed order and allow that person a reasonable opportunity to give or call evidence and make representations on the matter.

25. (7)    A person against whom an order for costs is made under subsection (3), (4) or (5) has the same rights of appeal as a party to a civil action.”

26. It may be seen that the learned Magistrate declined to exercise the discretion in s189(1) to award the costs thrown away. The remaining relevant provisions of s189 relate to circumstances justifying an award for costs and the right of appeal against an order for costs. No right of appeal is given against a decision not to make an order for costs pursuant to s189. The right of appeal must be found elsewhere.

27. S 42 of the Magistrates Court Act 1991 provides for appeals by a party to a criminal action against any judgment in the criminal jurisdiction of the Court. Judgment means an order or decision and includes an interlocutory judgment or order: s3(1). However, s42(1a) of the Act provides that an appeal does not lie against an interlocutory judgment given in summary proceedings.

28. It is therefore necessary to determine whether the decision to refuse the application for costs is an interlocutory judgment. It is well established that the proper test to be applied in deciding whether a judgment, or an order, is final or interlocutory is whether the judgment or order, as made, finally disposes of the rights of the parties:  Carr & Anor v Finance Corporation of Australia Limited (1981) 147 CLR 246 per Gibbs CJ at p248, Atco Industries (Aust) Pty Ltd v ANCLA Maritima SA & Others (1984) 35 SASR 408 at p410 and Keylink v Ergoline [1999] SASC 483. In Bozson v Altrincham Urban District Council [1903] 1 KB 547 at pp548-549, Lord Alverstone adopted this test and went on to say:

    “If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion an interlocutory order.”

See also Hall v Nominal Defendant (1966) 117 CLR 423 per Taylor J at pp439-440. In R v Pavia (1993) 67 ACrimR 364 the Court of Criminal Appeal in New South Wales applied the test and held that an order for costs in criminal proceedings was an interlocutory order.

1. It is beyond question that the order vacating the trial date is an interlocutory order. It would be a strange result if an order for costs made in consequence of such an order is to be regarded as a final order. Many interlocutory judgments or orders may be made during the course of criminal proceedings in the Magistrates Court. The order for production of the documents and photographs made on 6th December 1999 is an example of an interlocutory order and could not be the subject of an appeal. If an order for costs had been made on that occasion for some reason, it could not be regarded as other than an interlocutory order.

2. In Grey v City of Charles Sturt [1999] SASC 224 Bleby J had to consider an appeal by an unrepresented defendant in proceedings in the criminal jurisdiction of the Magistrates Court against an order for costs which had been made against him on the adjournment, at his request, of the proceedings. Although the order had been made pursuant to s189 of the Summary Procedure Act, it was necessary for Bleby J to consider the rights of appeal as if he were a party to a civil action: see s189(7). Because of R96B.02 of the Supreme Court Rules, if the appeal was against an interlocutory judgment, leave of the Supreme Court was necessary. Consequently he had to consider whether the order for costs was an interlocutory order. He held that it was not. He said:

   “It is an order which operates regardless of the final outcome of the proceedings and imposes a financial liability on the appellant regardless of that outcome. That order may be enforced as any other order of the Magistrates Court made in its Criminal Division. It is an order which, although made in the course of proceedings, was not interlocutory in the sense of assisting in the proper resolution of the proceedings.”

He went on to say that if he was wrong in that conclusion, he would grant leave to appeal.

1. I regret that I find myself in disagreement with Bleby J. An order for costs made during the course of proceedings is not a judgment or order which finally disposes of the rights of the parties in the relevant sense. Nor is an order refusing to make an order for costs. All orders of the Magistrates Court are enforceable, including interlocutory orders. Mere enforceability does not convert an interlocutory order into a final order.

2. Where an order for costs is made, the party adversely affected has a remedy if the order is the consequence of an erroneous exercise of the discretion given by s189. That party may apply for leave to appeal which will, no doubt, be given if justified in the circumstances. Such is the effect of s189(7) and R96B.02.

3. As Bleby J observed in Grey v City of Charles Sturt, the general discretion conferred by s189(1) will usually only be exercised at the conclusion of the proceedings and will need to take into account all matters pertinent to the exercise of the discretion not only as to whether costs should be awarded but also as to the amount of the award. It is to be expected that where a party has been affected in costs by the conduct of another party, any application for costs would be noted at the time it is made but decided at the conclusion of the case. An order, granting or refusing costs, made at that time would not be an interlocutory order and could be the subject of appeal.

4. It is significant that s189(7) only gives a right of appeal where an order for costs is made. It is to be expected that Parliament recognised that an order for costs made during the course of criminal proceedings could operate harshly against the affected party and, although an interlocutory order, there could be an appeal by leave. However, other cases where costs are refused, including costs thrown away by a party during the proceedings, should be decided at the conclusion of the proceedings and should be the subject of an appeal as of right as part of the final order or orders made in the proceedings.

5. Whilst it is to be appreciated that the refusal to make an order for costs may also operate harshly against a party to proceedings in the Magistrates Court, the Legislature has struck a balance between the interests of parties and has prevented appeals from such interlocutory decisions by not granting an appeal by leave pursuant to s189 of the Summary Procedure Act and has prohibited an appeal by s42 of the Magistrates Court Act. Proceedings are completed relatively quickly in the Magistrates Court and appeals are heard expeditiously so that the harsh consequences of an erroneous exercise of discretion to refuse costs at an interlocutory stage will not be of long duration. Also, it is likely that Parliament has also recognised the undesirability of the capacity to appeal interlocutory orders of any nature except in the limited circumstances permitted by s189. It is to be expected that where a Magistrate is not disposed to make an order for costs during the course of criminal proceedings in the Magistrates Court, the application will not be finally disposed of until the completion of the proceedings.

6. In my view, the appeal is incompetent and should be dismissed.