Tower v Wehrmann - [2017] WASC 48

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: TOWER -v- WEHRMANN [2017] WASC 48

CORAM: MARTINO J

HEARD: ON THE PAPERS

DELIVERED : 24 FEBRUARY 2017

FILE NO/S: SJA 1082 of 2016

BETWEEN: IAN GORDON TOWER
Appellant
AND
PHILLIP CHRISTOPHER WEHRMANN
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R G BAYLY
File No  :PE 78895-6 of 2014, PE 83055 of 2014, PE 83057 of 2014

Catchwords:

Costs - Successful appeal against convictions in Magistrates Court

Legislation:

Criminal Procedure Rules 2005 (WA)

Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA)
Official Prosecutions (Accused's Costs Act 1973 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Amount of appellant's costs of trial in the Magistrates Court fixed at $14,982

Category: B

Representation:

Counsel:

Appellant: No appearance
Respondent: No appearance

Solicitors:

Appellant: Seamus Rafferty
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

A v Maughan [2016] WASCA 128
Kirwan v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S)
WS v Gardin [2015] WASC 97 (S)

MARTINO J: On 20 February 2015, following a four day trial, the appellant was convicted in the Magistrates Court of three offences under the Surveillance Devices Act 1988 (WA) and one offence under the Surveillance Devices Regulations 1989 (WA). All of those prosecutions had been commenced by the Corruption and Crime Commission. By a notice of appeal filed on 24 October 2016 the appellant applied for an extension of time to appeal and for leave to appeal against those convictions on the ground that the Magistrates Court did not have jurisdiction to determine the prosecutions because the Corruption and Crime Commission did not have authority to commence the prosecutions. The appeal was commenced following the decision of the Court of Appeal in A v Maughan [2016] WASCA 128.
The respondent has conceded the appeal and a consent notice was filed on 17 February 2017. The parties agreed that no costs would be awarded for the costs of the appeal and that on the allowing of the appeal the appellant was entitled to his costs of the trial in the Magistrates Court, but did not agree as to the amount that should be allowed. They have filed written submissions as to that issue.
I accept the submissions of the parties that it is appropriate to award costs pursuant to s 5(4) of the Official Prosecutions (Accused’s Costs) Act 1973 (WA) (the OPAC Act). Section 5(4) provides:
(4)Where an accused is successful by reason of the appeal court reversing a decision of the summary court, the appeal court shall make an order as to the amount of the costs in the appeal court and in the summary court.
The terms 'accused' is defined in s 4(1):
accused means a person charged with an offence in an official prosecution.
'Official prosecution' is defined as:
official prosecution means proceedings in a summary court against a person charged with an offence by a public official acting or purporting to act by virtue of his office, and includes proceedings on appeal therefrom
The prosecution of the appellant was commenced by the respondent in his capacity as an officer of the Corruption and Crime Commission and so he was a public official acting, or purporting to act, by virtue of his office.
The parties agree that the appropriate scale of costs is the scale contained in the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2014 (WA), (the Determination). As the costs are to be paid out of the Consolidated Fund pursuant to s 9 of the OPAC Act the respondent did not consider it appropriate to consent to costs in any particular amount, but did provide submissions as to the reasonableness of the costs sought.
In Kirwan v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 (S) Hall J held that costs awarded under the OPAC Act could be assessed by a taxing officer and ordered that the costs be so assessed. In making that decision his Honour referred to s 8 of the OPAC Act which enables court to refer costs to chambers. In WS v Gardin [2015] WASC 97 (S) Mitchell J, as his Honour then was, referred to Kirwan v The Pilbara Infrastructure Pty Ltd and considered whether to refer the costs for taxation but decided that in the circumstances of that case it was appropriate for him to fix the costs.
In this appeal it was the respondent's position, with which the appellant agreed, that notwithstanding those decisions I am required to fix the costs because s 5(4) of the OPAC Act requires the court to make an order as to the amount of costs.
It may be that s 5 of the OPAC Act requires the Judge or Judges of this court who allow an appeal and award costs under the OPAC Act to fix the amount of costs. It may be that s 8 of the OPAC Act allows the Judge or Judges to refer the question of costs to their chambers, but not to refer the question to a taxing officer. Section 8 enables the court to adjourn the question of costs, or the amount thereof, to chambers to enable the making of submissions and the tendering of evidence on that question, however the order as to the amount of costs is to be made by the court ‑ s 5(3) and (4). The Supreme Court consists of the Judges and Masters of the Court – s 6 Supreme Court Act 1935 (WA).
Prior to the passing of the Criminal Appeals Act 2004 (WA) there was provision in the O 65A r 13(2) of the Rules of the Supreme Court 1971 (WA) which enabled the court to refer the question of costs to a Registrar for inquiry and report as to the amount of costs. This enabled the Registrar to report on the costs and the Judge to make an order as to the amount of the costs. There is no corresponding provision in the Criminal Procedure Rules 2005 (WA).
There was no argument to the contrary to the position that the parties took and as I am able to fix the costs on the basis of the submissions that have been provided by the parties it is not necessary for me to decide whether I have power to refer the costs to a taxing officer for taxation. I will determine the amount of costs.
The appellant's claim for costs, as modified after considering the respondent's submissions, is:
Preparation and first half day of trial ‑ Item 4(a)               $7,172.00
Second half day of trial ‑ Item 4(b)  $792.00
Day 2 of trial ‑ Item 5  $3,190.00
Day 3 of trial ‑ Item 5  $3,190.00
Day 4 of trial ‑ Item 5  $3,190.00
These are the maximum amounts itemised under Table C of the Determination.
Clauses 6 and 7 of the Determination provide:
6. Scale of costs
Subject to clause 7, the costs recoverable by a successful accused in an official prosecution (inclusive of counsel fees but exclusive of other disbursements) shall not exceed the amounts set out in Table C.
7. Complex matters, and matters involving a high degree of skill or urgency or require Senior Counsel
(1)Where a matter is complex, or involves a high degree of skill or urgency or requires Senior Counsel, notwithstanding the rates or scale set out in the Tables to this Determination, the accused is entitled to recover a fee that is greater than the one that is set out in this Determination, if it is reasonable in the circumstances.
(2)Work undertaken by Senior Counsel shall be allowable in accordance with the rates in Table B of this Determination.
The relevant items in Table C are:

4

5

Trial

(a) Preparation of case and half day trial, including counsel fee

(b) Second half day

Second or each successive day of trial

$7,172

$792

$3,190

The respondent stated in his submissions as to costs that the transcript of the trial shows that on day three of the trial the hearing concluded at 1.06 pm and on day four of the trial the hearing concluded at 12.48 pm. I was not provided with that transcript. At a directions hearing in the appeal on 20 December 2016 I directed that the appellant was not required to lodge a transcript unless directed to do so. I made that direction at the request of the appellant in the interest of keeping costs to a minimum. The appellant filed his submission as to costs after the respondent filed his submissions. The appellant did not disagree with the respondent's statement as to the times that the hearings finished on days three and four of the trial. I proceed on the basis that those statements are correct.
The respondent submits that an allowance of half the sum specified for item 5 of Table C is appropriate for days three and four.
The appellant submits that there is no reference in item 5 of Table C to preparation for the hearing, as there is in item 4, and that if a matter proceeds to a second or successive day of trial a successful accused is entitled to the full amount specified in item 5 irrespective of the time spent in court on that particular day.
Clause 6 provides that subject to cl 7 the costs recoverable 'shall not exceed the amounts set out in Table C'. Clause 7 enables an accused to recover a reasonable fee greater than the one set out in the determination if a matter is complex or involves a high degree of skill or urgency or requires Senior Counsel. The appellant did not submit that cl 7 applied.
I do not accept the appellant's submission that a successful accused is entitled to the full amount specified in item 5. By reason of cl 6 the costs recoverable the by the appellant for days three and four shall not exceed $3,190. It does not follow that the appellant is entitled to the maximum allowance no matter how long the hearing lasted.
In my view, when making an order as to the amount of costs, it is appropriate for me to have regard to the length of the hearings on days three and four. A full sitting day in court is usually 5 hours – three hours in the morning and two hours in the afternoon. On each of days three and four the hearing occupied approximately three hours, as the court sat until approximately 1.00 pm. In my view it is appropriate to allow 3/5s of the amount specified in the item, ie $1,914.
The costs I allow are:
Preparation and first half day of trial  $7,172.00
Second half day of trial  $792.00
Day 2 of trial  $3,190.00
Day 3 of trial  $1,914.00
Day 4 of trial  $1,914.00
Total  $14,982.00