Taylor v George Town Residents and Ratepayers Association
[2012] TASSC 16
•18 April 2012
[2012] TASSC 16
COURT: SUPREME COURT OF TASMANIA
CITATION: Taylor v George Town Residents and Ratepayers Association
[2012] TASSC 16
PARTIES: TAYLOR, Bruce
v
GEORGE TOWN RESIDENTS AND RATEPAYERS ASSOCIATION
FILE NO/S: 591/2011
DELIVERED ON: 18 April 2012
DELIVERED AT: Launceston
HEARING DATE: 14 November 2011
JUDGMENT OF: Crawford CJ
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Orders for costs – Costs against prosecutor, informant or complainant – Discretion of court – Prosecution by Electoral Commissioner – Whether magistrate made a specific error or whether the making of the order was unreasonable or plainly unjust.
Costs in Criminal Cases Act 1976 (Tas), s4.
Aust Dig Magistrates [166]
REPRESENTATION:
Counsel:
Applicant: J P Ransom
Respondent: S McElwaine
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Shaun McElwaine
Judgment Number: [2012] TASSC 16
Number of paragraphs: 38
Serial No 16/2012
File No 591/2011
BRUCE TAYLOR v GEORGE TOWN RESIDENTS
AND RATEPAYERS ASSOCIATION
REASONS FOR JUDGMENT CRAWFORD CJ
18 April 2012
By a complaint, the appellant, the Electoral Commissioner, charged the respondent with two offences against the Local Government Act 1993. Count 1 charged it with publishing the names of four candidates at an election in electoral advertising without their written consent, contrary to s278(3). Count 2 charged it with publishing and distributing an article relating to an election which did not contain the true name of the responsible person at the end of the article, contrary to s311(1).
At the conclusion of the prosecution case, it was submitted that the respondent had no case to answer on either count. After hearing submissions from counsel, the magistrate, Mr S F Mollard, reserved his decision, which was subsequently announced with written reasons. His Honour upheld the defence submission concerning count 1 and dismissed the charge. However, he held that the respondent had a case to answer on count 2. Subsequently, count 2 was found proved.
The respondent applied under the Costs in Criminal Cases Act 1976, s4(1), for an order that the applicant pay its costs of and incidental to the hearing of count 1. Written submissions were made. Subsequently, the magistrate published in writing his reasons for concluding that the applicant should pay the respondent's costs, subject to the parties making further submissions concerning how the conclusion that the respondent was guilty of count 2 might affect the outcome.
After receiving further written submissions about that aspect, the magistrate published in writing his reasons for ordering that the applicant pay 80 per cent of the respondent's costs of and incidental to the hearing, the costs to be taxed by a clerk of petty sessions, or delegate, on a scale equivalent to 80 per cent of the Supreme Court scale.
The applicant has moved this Court to review the order. The motion is confined to the making of an order for costs in favour of the respondent against the applicant and does not challenge the detail of the order that was made, such as the apportionment of 80 per cent.
It is necessary to refer to some of the proceedings.
The hearing of the complaint
There was to be an election of councillors, mayor and deputy mayor for the George Town Municipality. The respondent was an incorporated association under the Business Names Act 1962. It sent a letter to each of the candidates. In the letter it claimed to be an organisation that endeavoured to keep the council and its councillors appraised of the opinions and views of its members in relation to municipal matters and issues of interest to George Town residents. It also claimed to facilitate the democratic process by providing a forum whereby councillors could have direct access to the views of their constituents.
Enclosed with the letter was a questionnaire. Candidates were asked to answer and return the document, and were informed that the results might be published for the scrutiny of George Town municipal residents. It was stated that some of the questions reflected concerns of all of the respondent's members, whereas some reflected the concerns of individual members only. Nevertheless, it would have been apparent to the candidates that unless they answered some of the 28 asked questions in certain ways, their candidacy would be viewed unfavourably. That is easily demonstrated by an example. The first question asked whether the candidate was supportive of community organisations such as the respondent.
On 17 October 2007, the respondent published generally what has been referred to as a flyer. It reported that three candidates, who were named in large and bold capital letters, had not completed and returned the questionnaire. In much smaller print, and not in capital letters, it named the nine candidates who had completed and returned the questionnaire. It detailed the answers each of those nine had provided. It "applauded" the candidates who responded and asked the reader to take particular notice of those who did not.
At the foot of the flyer it was stated: "Compiled & Distributed by The George Town Residents & Ratepayers Association Incorporated. Po Box 227 George Town 7253."
I will deal with what happened to count 2 before count 1. Counsel submitted that the respondent had no case to answer because the evidence established that the article in question did have "the true name and address of the responsible person at the end of the article", as required by s311(1). The magistrate held that the section required that the name and address of a human was required and that the name and address of an organisation did not comply, not even if the organisation was an incorporated body. As a consequence of that ruling, a case to answer was found, and later the charge was found proved.
Concerning count 1, defence counsel submitted that although in the flyer it may have named candidates without their written consent, the flyer did not amount to electoral advertising and so the publication naming them without their consent was not an offence.
The magistrate thought the answer to the issue was to be found in Pt 15, Div 5 of the Act, which contains provisions relating to advertising in respect of elections and includes s278. His Honour found that the purposes of the Division included:
(i)a requirement for the lodgement of a return stating "the candidate's relevant electoral advertising";
(ii)a requirement for the inclusion with such a return of "any invoice, account or receipt in respect of electoral advertising";
(iii)similar requirements with respect to the printer, publisher or broadcaster of electoral advertising;
(iv)empowering the Electoral Commissioner to "require any person to give further information";
(v)prohibition of electoral advertising "with a view to promoting or procuring the election of the candidate" other than in accordance with regulations;
(vi)excepting broadcasts by radio and television;
(vii)prohibition of the offering of gifts, donations and prizes in certain circumstances.
Based on that finding the magistrate concluded that the Division was "aimed at advertising printed, published or distributed by or on behalf of a candidate, whether it is for that candidate or against opposing policies". His Honour found that the flyer was not of the character or type regulated by the Act. He said it purported to provide details of a survey and answers to it, and to provide a superficial summary of opinions, which some electors might find useful in the exercise of their democratic right. His Honour did not consider that by declaring the names of those who completed the survey, and those who did not, the flyer amounted to electoral advertising under the Act.
The magistrate agreed with the respondent's counsel that the flyer was more in common with commentary and opinion pieces such as those in newspaper editorials. He held that it was not "any advertising in respect of a campaign for election by a candidate". See the definition of "electoral advertising" in s3.
For those reasons, it was ruled that the respondent had no case to answer on count 1 and the charge was dismissed.
The application for costs
The respondent applied for the order for costs. Written submissions were addressed to the magistrate. His Honour gave written reasons for his decision to award costs in favour of the respondent. The reasons he expressed were as follows:
"...
2The deficiency in the prosecution case was to my mind, basic and obvious. One would be entitled to expect that this element would be one of the elements, if not the element, considered first by those whose duty it was to commence and continue the prosecution. Accordingly I would be favourably disposed towards resolving this cost application pursuant to the provisions of section 4(2)(b) of the Costs in Criminal Cases Act 1976.
3However, I prefer to resolve the application on another ground, and I refer to section 4(2)(e). The defendant was discharged from this count of the proceedings because it established that it was not guilty. There is simply no escaping that reality. Of course these legislative grounds are linked by facts common to them both, and the existence of one ground supports the making of an order for costs, on the other.
...
5Adverting briefly to submissions on behalf of the prosecution, this is not a case to which the submitted principle from Attorney-General v Rigby Unrep 61/1978, applies. The reasons are too obvious to need to be stated.
6The only matter which mitigates against the favourable exercise of discretion is that in the same trial, the defendant's guilt of the other count was proved. A solution may be to order some per centage of costs relative to time and/or effort, to be paid. Another might be to order payment of costs over and above the cost of defending count 2.
...
8I will need to provide the opportunity for counsel to address me upon the implications arising from the fact that one count on the complaint was proved."
After receiving written submissions concerning the fact that count 2 was proved, the magistrate published short written reasons for concluding that 80 per cent of the respondent's taxed costs should be paid by the applicant and not 100 per cent. His Honour's view was that as part of the trial was taken up proving count 2, some evidence and some of the closing submissions being relevant only to it, the award should be discounted by 20 per cent.
The grounds of review
There are four grounds of review:
"1The learned Magistrate erred in in[sic] law in ordering the applicant to pay the respondent's costs.
2The learned Magistrate erred in law in failing to give sufficient reasons for ordering the applicant to pay the respondent's costs.
3The learned Magistrate erred in fact and/or in law in making and proceeding on a finding that the prosecutor(s) failed to consider the element of the offence of 'advertising' when there was no basis in evidence for such finding and further or in the alternative in making the finding without giving the appellant procedural fairness by foreshadowing such a finding and giving the appellant the opportunity to call evidence and/or make submissions in respect of it.
4The magistrate erred in law in making an order for costs without considering and/or identifying a valid, positive reason to do so."
Counsel for the respondent conceded that grounds 2, 3 and 4 had been established, but argued that the order made was the correct one, in any event.
Nevertheless, it is a question for me to determine whether any of the grounds have been established. In the course of submissions, counsel for the applicant conceded that ground 3 could not be established, by declining to address further argument in favour of it. There is no merit in it and I will not consider it further.
The Costs in Criminal Cases Act 1976, s4
The provisions of s4 are:
"4 Costs of successful defendant
(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where –
(a) he is acquitted of the offence;
(b) the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence –
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.
(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.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof."
An analysis of the magistrate's reasons and a consideration of grounds 2 and 4
In par[3] of his reasons, the magistrate determined that he should grant the application for costs because the respondent was discharged from the proceedings as a result of him establishing that he was not guilty. That was a relevant factor under s4(2)(e).
In addition, in par[2] of his reasons, his Honour was "favourably disposed" towards resolving the application for costs in favour of the respondent on the basis made relevant by s4(2)(b), that is upon the basis that the prosecution should have taken proper steps to investigate the case before bringing and continuing the proceedings and, inferentially, if it had done so, it should have realised what his Honour regarded as "basic and obvious", that as a matter of law the prosecution could not establish that the flyer was "electoral advertising" for the purposes of the Local Government Act, s278(3). In par[3] his Honour had regard to both pars(b) and (e) of s4(2) when he added: "Of course, these legislative grounds are linked by facts common to them both, and the existence of one ground supports the making of an order for costs, on the other".
Next, the magistrate considered a submission by counsel for the prosecution that similar principles applied to the magistrate's consideration of costs as applied in Attorney-General v Rigby 61/1978, where at 21, Neasey J said with reference to the police: "The evidence before them was amply sufficient to justify a conviction if it was believed, and part of it was objective evidence and part was from an independent witness. It was not for them to form a conclusion that this evidence would be rejected and the opposing evidence accepted, though that of course was a possibility. But the issue of credibility was for the court to decide. That is what courts are for." The magistrate dismissed the submission, saying merely that "the reasons are too obvious to need to be stated".
Prosecuting counsel's submission to the magistrate was not that the issue of credibility of witnesses was involved. It was that the outcome of the case turned on an issue of statutory interpretation and, as counsel expressed it, "the court was the appropriate forum to resolve the dispute". I infer that when the magistrate said that the reasons for rejecting the submission were too obvious to need stating, his Honour was referring back to what he said in par[2] of his reasons, that the deficiency in the prosecution case was basic and obvious.
It might be suggested that I have dealt unnecessarily with this aspect of the reasons of the magistrate, for it has not been attacked by a ground of review. However, I have done so because it is relevant to ground 2, which asserts an error in law in failing to give sufficient reasons for the order. It formed part of his Honour's reasons. Also forming part of those reasons, was what was said in par[6].
Ground 4 of the review fails. Contrary to what it asserts, the magistrate did consider and identify valid and positive reasons for making the order.
Ground 2 also fails. The magistrate gave reasons for making the order and they were sufficiently explained.
I add that one matter raised by the applicant was that the magistrate did not refer to relevant case law. That did not amount to a legal error.
Was the making of the order erroneous?
Ground 1 asserts legal error by the magistrate by making the order. As the power to make the order was discretionary, the question whether there was legal error must be approached in accordance with principles that apply to appeals from discretionary orders.
Those principles are to be found in House v R (1936) 55 CLR 499 at 504 - 505. It is not enough that if I had been the magistrate, I would have taken a different course. It must appear that an error was made in exercising the discretion. If the magistrate acted upon a wrong principle, allowed extraneous or irrelevant matters to guide or affect him, mistook the facts, or did not take into account a material consideration, then the determination should be reviewed and I should exercise my own discretion.
Alternatively, I should do so also if upon the facts, the determination was unreasonable or plainly unjust, for that would give rise to an inference that in some way there was a failure to properly exercise the discretion. House v R at 505. Having rejected the grounds asserting specific error, I will determine ground 1 upon a consideration of whether the making of the order was unreasonable or plainly unjust.
A number of propositions were stated by Cosgrove J in R v Freshney [1977] Tas SR 126 at 128. They are frequently cited and I have regard to them. I also have regard to all of the provisions of s4.
My understanding of the applicant's submissions is that as a matter of law, the reasons given by the magistrate could not justify the making of the order. I do not accept that. The findings that the respondent was discharged because it established it was not guilty, and that it was "basic and obvious" that the prosecution could not succeed and, inferentially, that the prosecution ought to have realised that and not proceeded to a hearing, are not attacked by a ground of review. They were relevant and valid considerations by virtue of s4(2)(b) and (e) and, in my view, material ones.
Counsel for the applicant submitted that something more than an acquittal had to be established (see s4(3)). Clearly it was, in the magistrate's mind. Counsel also submitted that there had to be a positive reason for making the order. There was more than one, in the magistrate's mind, and they were expressed as reasons justifying the making of the order. His Honour did not merely prefer the defence case to the prosecution case after a consideration of extensive argument. Instead, his Honour determined there was obvious lack of merit in the prosecution case, notwithstanding extensive argument.
The discretion to order costs is a wide and unfettered one. I am unable to conclude that the making of an order for costs was unreasonable or plainly unjust.
For the reasons I have given, the motion will be dismissed.
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