Tabain v Pettit
[2017] TASSC 11
•2 March 2017
[2017] TASSC 11
COURT: SUPREME COURT OF TASMANIA
CITATION: Tabain v Pettit [2017] TASSC 11
PARTIES: TABAIN, Geoff Alexander
BRIGGS, Hannah
v
PETTIT, Colin, Secretary of the Department of Education
FILE NO: LCA 2875/2016
DELIVERED ON: 2 March 2017
DELIVERED AT: Hobart
HEARING DATE: 10 February 2017
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Procedure – Costs – Other matters – Costs in Criminal Cases Act 1976 (Tas) – Review of magistrate's refusal to order costs.
Costs in Criminal Cases Act 1976 (Tas), s 4.
R v Freshney [1977] Tas SR 126; Langmaid v Millhouse [2001] TASSC 58, 10 Tas R 170, followed.
Aust Dig Criminal Law [3181]
REPRESENTATION:
Counsel:
Applicants: In Person
Respondent: S Thompson
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2017] TASSC 11
Number of paragraphs: 26
Serial No 11/2017
File No LCA 2875/2016
GEOFF ALEXANDER TABAIN and HANNAH BRIGGS v COLIN PETTIT, SECRETARY OF THE DEPARTMENT OF EDUCATION
REASONS FOR JUDGMENT BLOW CJ
2 March 2017
In August 2012 the respondent, Colin Pettit, who was then the Secretary of the Department of Education, instituted a prosecution against the applicants, Geoff Tabain and Hannah Briggs, on a charge of failing to ensure that their son attended school, contrary to s 6(1) of the Education Act 1994. The case did not proceed smoothly. Eventually, on 22 January 2016, a magistrate, Ms S Cure, found the applicants not guilty and dismissed the charge against both of them. They applied for an order for costs under the Costs in Criminal Cases Act 1976 ("the Act"). On 16 September 2016 her Honour heard that application and refused it. This is motion for the review of the order refusing the costs application.
As a general rule, a successful defendant is not entitled to an order for costs. However s 4(1) of the Act empowers the court having the conduct of the proceedings to order that a successful defendant "be paid in respect of his defence such costs as it thinks just and reasonable". The discretion to make such an order is unfettered, but s 4(2) of the Act provides as follows:
"(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:
(a) Whether the proceedings were brought and continued in good faith;
(b) Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c) Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d) Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e) Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty."
Some principles relevant to the exercise of the discretion conferred by s 4(1) were listed by Cosgrove J in R v Freshney [1977] Tas SR 126 in the following passage at 128:
"1 The discretion to order costs is an unfettered discretion. …
2 The considerations enumerated in pars(a) to (e) of subs(2) are of the same nature. They state considerations which ought to be considered. But in case one or more of them might be thought to be conclusive, the subsection emphasises that they are not.
3 Unless an issue is raised under par(e), a tribunal hearing an application should refrain, so far as possible, from expressing or hinting at any view of the guilt or innocence of the applicant.
4 The section is a grant of power. That power must, I think, he construed in the context of the enactment, that is to say, against the background that, until it became law, the Court had no power to order the costs of trials.
5 The power granted is power to award 'such costs as it thinks just and reasonable' ie, only to award costs where it is just and reasonable that the Crown should pay an accused person's costs; and then only such amount … as is just and reasonable. The statute does not in terms refute or abrogate the long-standing principles of public policy that (a) criminal trials are for many reasons not to be equiperated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is spelt out in the section). [Original emphasis.]
…
6 Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance, other than acquittal which, whether or not it be based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs."
The history of the proceedings
In the early stages of the prosecution, the applicants did not have legal representation. They pleaded not guilty. A hearing of the charge commenced before a different magistrate, Mrs M Bartlett, on 24 January 2013. The hearing did not finish that day. It was adjourned until later in the year.
On or about 6 March 2013 the applicants engaged a firm of solicitors to advise and represent them.
On 13 May 2013, the applicants' counsel sought leave for them to change their pleas to guilty. Mrs Bartlett granted that application.
On 2 August 2013 prosecuting counsel stated the facts, defence counsel addressed the court in mitigation, and her Honour convicted both applicants and fined them $2,010 each.
After that the applicants ceased to have legal representation. They moved this Court for the review of the convictions and fines, and were successful. On 5 February 2014 Estcourt J allowed that first motion to review: Tabain v Director of Public Prosecutions [2014] TASSC 5. Before the applicants changed their pleas, they had relied on s 10(1)(a)(i) of the Education Act, which provides that a school-aged child is excused from attendance at a school if the child is prevented from attending because of sickness. His Honour held that Mrs Bartlett had erred by allowing the applicants to change their pleas to guilty without seeking confirmation that they no longer contended that their son was excused from attendance at school because of sickness. The complaint was remitted for re-hearing before another magistrate.
The new hearing proceeded before Ms Cure over four days in February, May and September 2015.
On 22 January 2016 her Honour delivered a reserved decision, dismissing the complaint. Her principal findings and conclusions can be summarised as follows:
· The applicants had not sent their child to school because he suffered from a medical condition associated with allergies. They believed that he was at significant risk of death because the school authorities had not taken appropriate steps to be ready for an emergency.
· The school authorities had done everything in their power to deal with the risks associated with the child's condition.
· In the light of the judgment of Estcourt J, the prosecution needed to prove beyond reasonable doubt that the child was not prevented from attending school because of sickness: Education Act: s 10(1)(a)(i).
· As the prosecution had not called expert evidence as to that point, she was not satisfied as to that point. She was not satisfied that the applicants' belief was not reasonable.
· The evidence was sufficient to establish a breach of s 6 of the Education Act on the basis that the parents had failed to provide the son with an education at all during the period to which the charge related. However they had not been charged on that basis, and it would be unfair to amend the charge.
The applicants' costs application came before the learned magistrate on 16 September 2016. Quite correctly, she explained to them that they were only entitled to apply for costs in respect of expenses incurred by them in relation to the court proceedings, and that she had no power to award any money in respect of their time, inconvenience, the emotional impact of the proceedings, or anything other than expenditure related to the case.
The principal arguments advanced by the applicants in relation to the costs application were as follows:
· They argued that they had always been prepared to send their son to school, but that the authorities had failed to put together a policy that would make it safe for their son to attend school.
· Referring to her Honour's comments at the time of their acquittal, they argued that the charge brought against them was the wrong charge.
· They argued that the institution of the prosecution disrupted negotiations between them and the staff at the school.
During the hearing of the application, R v Freshney (above) was referred to. It is clear that her Honour understood that there needed to be some circumstance other than the acquittal that warranted an order for the payment of costs. With that principle in mind, her Honour refused the application, saying that she was of the view that the case was not one where the discretion to order costs "would be enlivened"; that she did not regard the prosecution as having been in any way misguided or unfair; and that in her view the proceedings had been quite properly brought.
The grounds of review
The grounds of review were stated by the applicants in their notice to review as follows:
"That the learned Magistrate erred in failing to find positive reason to exercise her discretion by failing to give sufficient regard to natural justice and to all the relevant circumstances, particularly to:
a) the conduct and procedure of proceedings before Magistrate Bartlett (Tabain v Director of Public Prosecutions [2014] TASSC 5).
b) the Department of Educations [sic] resolve to pursue the charge despite the appeal findings (Tabain v Director of Public Prosecutions [2014] TASSC 5) and [the son's] established enrolment in formally recognised education.
c) the prejudice created through questioning and judgement on an allegation that was not part of the particulars of the charge.
d) the lengthy duration of the matter.
e) the negative impact the matter has had on our child's medical treatment, our children's health and education and on the family unit."
I will begin by addressing the assertion that the learned magistrate failed "to give sufficient regard to natural justice". When lawyers refer to "natural justice" they usually intend those words to refer to procedural fairness, as distinct from justice in a general sense. However the applicants are not lawyers, and it seems likely that they intended those words to refer to justice in a general sense, rather than to procedural fairness in particular. In hearing the costs application, the learned magistrate did all that she needed to do by way of affording procedural fairness to the applicants. She received written material, listened to what they had to say, and offered them an opportunity to reply to the submissions made by counsel for the respondent.
Ground (a) refers to the proceedings before the first magistrate. It is true that Estcourt J concluded that that magistrate had fallen into error in that she allowed the applicants to change their pleas to guilty without having sought confirmation that they no longer contended that their son was excused from attendance at school under s 10 of the Education Act because of sickness. However the applicants' then counsel led that magistrate into error by making an application to change their pleas to guilty without offering confirmation that they no longer relied on s 10. Further, the applicants did not rely upon the first magistrate's error in the submissions that they made to the second magistrate.
Ground (b) refers to the Department's resolve to pursue the charge. However it is clear from the learned magistrate's stated reasons, both at the time of the acquittal and at the time of refusing the costs application, that she saw nothing inappropriate about the strength of the Department's resolve. She considered that the proceedings were properly brought and continued. It was open to her to conclude that they were properly brought and continued. Whilst there was no expert evidence introduced for the prosecution in relation to the s 10 issue, there was no exculpatory expert evidence either.
Ground (c) appears to be based on a premise that the applicants were somehow prejudiced as a result of the learned magistrate addressing the question of whether they had contravened s 6 of the Education Act by failing to provide their child with any education at all during the relevant period. However there was no such prejudice because the learned magistrate decided not to amend the charge in a way that would have permitted her to convict the applicants on that basis. She ensured that they would not suffer the sort of prejudice that ground (c) refers to.
Ground (d) refers to the "duration of the matter". That appears to be a reference to the unfortunate fact that the proceedings were pending for well over three years, from August 2012 until January 2016. That was in part the result of the applicants' counsel leading the first magistrate into error in 2013. The material before the learned magistrate did not suggest that the delays in the proceedings had been caused by the respondent or his representatives, nor that those delays had resulted in the applicants having to pay more by way of legal costs.
Ground (e) refers to the impact of the proceedings on the medical treatment of the child in question, and on all members of the applicants' family. In Langmaid v Millhouse [2001] TASSC 58, 10 Tas R 170 at [12], which concerned a costs application under the Act, Cox CJ observed that "ordinarily the complexity or length of a case with its emotional and financial consequences would not be a reason sufficient in itself to justify the making of an order". I agree. In my view there was nothing about this case that made it unreasonable or unjust for the learned magistrate to fail to give no weight to the non-financial impacts of the proceedings on the applicants and members of their family. It is significant that, when she acquitted the applicants, the learned magistrate expressed the view that they had acted unreasonably in relation to the arrangements with the school authorities. No doubt the applicants do not agree with that opinion, but it was an opinion that the learned magistrate was entitled to form.
Conclusion
The power to make an order for costs under the Act is a discretionary power. The principles governing appeals from discretionary decisions are as stated in House v The King (1936) 55 CLR 499 at 504-505, where Dixon, Evatt and McTiernan JJ said:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
The learned magistrate did not make any of the sorts of specific errors referred to in that passage. It was open to her to conclude that the matters relied upon by the applicants did not warrant the making of an order for costs. It cannot be said that it was unreasonable or plainly unjust that she refused their application. That is to say, I am not persuaded that the matters relied upon by the applicants were of such weight that the only reasonable course was to make an order for costs. There will rarely, if ever, be such a combination of circumstances.
I am not satisfied that the learned magistrate erred in the exercise of her discretion in any way.
I note that the costs incurred by the applicants comprised $22,770.91 that they paid to the solicitors who represented them in 2013, and $59.20 that they paid for audio recordings of the proceedings. It would seem that all the work done by the solicitors in question was wasted since, after their services were dispensed with, the applicants needed to appeal against their convictions, and there had to be a new hearing before a second magistrate. Those facts, in my view, would weigh heavily against the making of an order for costs, but no submission to that effect was put to the learned magistrate or to me.
I note also that, before me, counsel for the respondent argued that the second magistrate had no power to make an order for costs in relation to the proceedings before the first magistrate because, for the purposes of the Act, the two magistrates constituted different courts. That argument related to the distinction between sessional courts and standing courts. A court of petty sessions is a sessional court, in the sense that it only exists when the court is sitting. The Magistrates Court is a standing court by virtue of the Magistrates Court Act 1987. But the critical question is whether the power conferred by s 4(1) of the Act on "the court having the conduct of the proceedings" to make an order for the payment of "such costs as it thinks just and reasonable" includes a power for a second magistrate to order the payment of costs in respect of proceedings on a complaint when it was before an earlier magistrate. The Act is a piece of beneficial legislation which would ordinarily be given an interpretation favourable to the class of persons intended to be benefited, namely acquitted defendants. However I have no need to rule on this point.
For the reasons stated above, the motion to review is dismissed.
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