Tierney v Commissioner of Police (No. 2)

The case of Tierney v Commissioner of Police (No. 2) involved the appellant challenging his conviction in the Magistrates Court of Victoria for an indictable offence that was heard summarily. The central issue before the court was whether section 232(4) of the Justices Act 1886 precluded any order in respect of the costs of the appeal when the Magistrate's finding of guilt was set aside and replaced with a finding of not guilty. Furthermore, the court had to consider the exercise of discretion to award costs of the trial.

The court held that section 232(4) of the Justices Act 1886 did not preclude an order for costs in this situation, as the provision was intended to deal with costs orders that followed a finding of guilt, not a finding of not guilty. The court noted that the discretion to award costs of the trial was not absolute and could be exercised only in accordance with the principles of justice and fairness. The court found that the Magistrate had exercised the discretion to award costs to the complainant without considering the principles of justice and fairness, and without taking into account the fact that the appellant was found not guilty on appeal. The court concluded that the Magistrate had erred in law and exercised his discretion capriciously or without regard to the relevant principles.

The court set aside the order made by the Magistrate that the appellant pay $750 by way of witness expenses, and replaced it with an order that the complainant pay the appellant's costs of the trial, in the amount of $2,375. The court further ordered that the costs of the appeal be paid by the respondent within 28 days. The court emphasised the importance of the principles of justice and fairness in the exercise of the discretion to award costs of the trial, and warned that any failure to consider those principles could result in the order being set aside.