Tuang v Gadenne

[2015] WASC 383 (S)

TUANG -v- GADENNE [2015] WASC 383 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 383 (S)
Case No:	SJA:1123/2013	Heard:	15 OCTOBER 2015
Coram:	JENKINS J	Delivered:	22/01/16
No of pages:	4	Judgment Part:	1 of 1
Result:	Appellant to pay the respondent's costs of the appeal fixed in the sum of $2,000
Category:	B
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Parties:	BOON KWANG TUANG JEFFERY MICHAEL GADENNE
Catchwords:	Criminal law Appeal Application to set aside decision made on the papers to dismiss appeal from magistrate's decision Application dismissed Costs
Legislation:	Criminal Appeals Act 2004 (WA), s 14, s 20
Case References:	Wilson v McDonald [2009] WASCA 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : TUANG -v- GADENNE [2015] WASC 383 (S) CORAM : JENKINS J HEARD : 15 OCTOBER 2015 DELIVERED : 22 JANUARY 2016 FILE NO/S : SJA 1123 of 2013 BETWEEN : BOON KWANG TUANG

Appellant

AND

JEFFERY MICHAEL GADENNE
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R BROMFIELD

File No : PE 22098 of 2013

Catchwords:

Criminal law - Appeal - Application to set aside decision made on the papers to dismiss appeal from magistrate's decision - Application dismissed - Costs

Legislation:

Criminal Appeals Act 2004 (WA), s 14, s 20

Result:

Appellant to pay the respondent's costs of the appeal fixed in the sum of $2,000

Category: B

Representation:

Counsel:

Appellant : No appearance
Respondent : Ms J E Rhodes

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

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

Wilson v McDonald [2009] WASCA 39



1 JENKINS J: On 15 October 2015 I confirmed the decision made on the papers by his Honour Corboy J on 4 March 2014 to dismiss Boon Kwang Tuang's (the appellant) appeal against his conviction for driving without authority to drive due to fines suspension and the appellant's appeal against the fine of $500 imposed on him for the same offence.

2 On the same date, the respondent made an application for costs in the sum of $3,548.

3 The appellant did not appear in court on 15 October 2015, despite having been advised by email of the date for delivery of my decision.

4 In respect of the respondent's application for costs, I directed that the respondent serve by mail at the appellant's last known address a copy of the respondent's schedule of costs and, at the same time, advise the appellant that he had until 30 October 2015 to file written submissions in respect of the respondent's application. I directed that I would make a decision as to costs after that date.

5 The appellant has not filed any written submissions as to costs and there is no record of him having contacted the court with a request that he be given an opportunity to make oral submissions in respect of costs. Therefore, I now proceed to determine the respondent's application for costs.

6 The Criminal Appeals Act 2004 (WA) (the Act) s 14(1)(h) provides that in deciding an appeal, the Supreme Court may, amongst other things, make an order as to the costs of the appeal.

7 The general power to award costs conferred by s 14 is constrained by the Criminal Appeals Act s 20. However, s 20 does not apply to an application by a respondent police officer, as in this case, for costs incurred in responding to an offender appeal.

8 In Wilson v McDonald [2009] WASCA 39 the Court of Appeal said that the general effect of the Criminal Appeals Act is to confer upon the court a general and unconstrained discretion with respect to the award of costs in relation to an appeal from a magistrate, unless the case comes within the specific provisions of s 20. The court said that this general discretion should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, except in the circumstances covered by s 20, the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.

9 The only public interest involved in this appeal was the principle that the right of appeal conferred in the Act on a convicted offender should not be rendered nugatory by the risk of having a large costs order made against such an offender, if the appeal is, as it was in this case, unsuccessful.

10 Other than that principle, I take into account that the appellant was unsuccessful. Also, as I said in my reasons for decision, he was grossly derelict in complying with the statutory requirements for an appeal and in complying with the orders of the court. These matters, to some extent, increased the respondent's costs because the respondent had to canvas a longer and more complicated history than would otherwise have been the case.

11 I also take into account what I know about the appellant's ability to pay costs. As at the hearing of the appeal, the appellant was unemployed. However, I noted in my reasons for decision that he had a demonstrated ability to pay off fines.

12 I also take into account the respondent's schedule of costs. The schedule particularises a sum of $473 for the preparation of the notice of respondent's intention, a sum of $325 for its preparation of case and a sum of $2,750 for counsel's fee on hearing.

13 Given the lengthy history of this matter and the appellant's record of failing to comply with court orders, it is in the interests of finality that I fix costs rather than order that they be taxed.

14 Taking into account all of these matters I exercise my discretion to order that the appellant pay the respondent's costs of the appeal fixed in the sum of $2,000.