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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tower v Wehrmann

Details

AGLC: Tower v Wehrmann [2017] WASC 48
Case: [2017] WASC 48
Decision Date: 24 FEBRUARY 2017

CaseChat Overview and Summary

Tower v Wehrmann was a case where the appellant, Tower, successfully appealed against convictions in the Magistrates Court. The dispute involved the assessment of costs related to the appeal process. The court was tasked with determining whether the respondent, Wehrmann, should bear the costs of the appeal, and if so, the appropriate amount. This case underscored the principles governing costs in successful appeals, particularly when the appeal led to the quashing of convictions in the lower court.

The primary legal issues the court needed to resolve were whether the appeal was frivolous or vexatious and, if not, whether the respondent should be ordered to pay the appellant's costs. The court examined the merits of the appeal and whether it was reasonable for the appellant to pursue the appeal based on the circumstances presented. The court also considered whether the appeal had any reasonable prospects of success and the conduct of the parties throughout the proceedings.

The court found that the appeal was not frivolous or vexatious. It determined that the appellant had reasonable grounds to believe that the appeal had a reasonable prospect of success, given the nature of the evidence and legal arguments presented. The court held that the respondent should bear the costs of the appeal as the appeal was successful. The court ordered the respondent to pay the appellant's costs, which included the costs of the appeal and the costs of the original proceedings in the Magistrates Court. This decision emphasised the importance of ensuring that successful appellants are not unduly penalised by having to bear their own costs, while also maintaining the principle that costs should reflect the outcome of the appeal process.

Orders