UZZELL v Police - [2017] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
UZZELL v POLICE
[2017] SASC 143
Judgment of The Honourable Justice Kelly
9 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
Appeal against a Magistrate’s refusal to make a costs order in favour of the appellant. The appellant was charged with threatening to cause harm and aggravated assault. At the commencement of the trial the prosecutor withdrew the aggravated assault charge. After the prosecutor gave his opening address the Magistrate expressed the view that the alleged victim, a police officer, may have committed an offence himself. The prosecutor then applied for and was granted permission to withdraw the remaining charge of threatening to cause harm. The appellant’s solicitor then made an application for costs which was refused by the Magistrate.
The appellant seeks permission to appeal under the provisions of r 288(1)(b) of the Supreme Court Civil Rules 2006 (SA). The respondent concedes that the Magistrate erred by taking into account irrelevant considerations, namely the allegations against the appellant which had not been admitted by him or determined by the court. Therefore the appeal turns on the sole issue of whether an appeal lies to this Court.
Held (allowing the appeal):
1. The costs order made by the Magistrate was interlocutory. McKelliff v Police [2002] SASC 269 followed.
2. Nevertheless, pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) there are special reasons why it is in the interests of the administration of justice to grant the appellant permission to appeal against the erroneous discretion exercised by the Magistrate in refusing costs.
3. The order of the Magistrate refusing costs is set aside and in its place the appellant is awarded the costs of the trial in the sum of $2,200.
Criminal Law Consolidation Act 1935 (SA) s 19(2), s 20(3); Magistrates Court Act 1991 (SA) s 42; Summary Procedure Act 1921 (SA) s 71, s 189; Magistrates Court Rules 1992 (SA) r 51; Supreme Court Civil Rules 2006 (SA) r 288(1)(b), referred to.
Taylor v Guttilla (1992) 59 SASR 361; Curnow v Police (2008) 100 SASR 290; McKelliff v Police [2002] SASC 269, applied.
Sullivan v Police [2000] SASC 171; Grey v City of Charles Sturt [1999] SASC 224, considered.

UZZELL v POLICE
[2017] SASC 143
Magistrates Appeal: Criminal
KELLY J.

This is an appeal against a Magistrate’s refusal to make a costs order in favour of the appellant, Liam James Uzzell. In the notice of appeal filed the appellant also seeks permission to appeal under the provisions of r 288(1)(b) of the Supreme Court Civil Rules 2006 (SA).
Background
The appellant was charged on information with two offences: the first, threatening to cause harm contrary to s 19(2) of the Criminal Law Consolidation Act 1935 (SA); the second, aggravated assault contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). When the trial commenced on 24 May 2017 the prosecutor informed the Magistrate that he would only be proceeding with one count of threatening to cause harm and withdrew the second count of aggravated assault.
He then proceeded to open the case to the Magistrate. After the Magistrate expressed the view that the alleged victim, a police officer, may have committed an offence himself, the prosecutor then sought an adjournment. Immediately after the adjournment the prosecutor applied for and was granted permission to withdraw the remaining count of threatening to cause harm. The certificate of record issued by the Court records that both counts on the information were withdrawn on 24 May 2017.
The appellant’s solicitor then made an application for costs which the Magistrate refused.
The respondent has conceded that the Magistrate’s order refusing costs is affected by error in that in exercising the discretion under s 189 of the Summary Procedure Act 1921 (SA) (the Summary Procedure Act) the Magistrate took into account irrelevant considerations by having regard to the allegations against the appellant which had not been admitted by him and which had not been the subject of any determination.
The appeal therefore turns on the sole issue of whether an appeal lies to this Court against the Magistrate’s refusal to award costs.
The legislative provisions
Before discussing the issue which arises, it is necessary to set out the legislative provisions which apply when a complaint is withdrawn and the provisions which apply in relation to costs orders.
The power to accept the withdrawal of a charge is to be found in s 69 of the Summary Procedure Act. That section regulates the powers and duties of the court after evidence is given at trial. The rider in s 69 empowers the court to permit the withdrawal of a complaint on such terms, if any, as it thinks fit.
Section 189 of the Summary Procedure Act vests in the court a general discretion to award costs for or against a party to proceedings as the court thinks fit.
Rule 51 of the Magistrates Court Rules 1992 (SA) states:
51.00COSTS
51.01Subject to these Rules, the provisions of any Act, or to an order of the Court, a successful party in an action is entitled to costs against an unsuccessful party.
51.02For the purpose of this Rule a successful party includes a party who instigates proceedings that are admitted by plea of guilty, and a party who defends proceedings that are withdrawn or dismissed as a result of no evidence being tendered.
51.03Subject to any order of the court to the contrary, the scale of costs set out in the first schedule shall apply.
The appellant submitted that r 51.02 in its terms creates a specific right for a successful party in any proceedings to claim costs irrespective of the manner in which the proceedings came to an end. However I cannot accept that argument. The Rules are made pursuant to s 49 of the Magistrates Court Act 1991 (SA) (Magistrates Court Act). Rule 51 does not create any type of action but is a rule relating to the practice of the court when it exercises the discretion conferred upon it by s 189 of the Summary Procedure Act.[1]
[1] Taylor v Guttilla (1992) 59 SASR 361 per King CJ; Curnow v Police (2008) 100 SASR 290 per Debelle J.
Section 42 of the Magistrates Court Act governs the procedure by which a party may appeal to this Court. That section states:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a)An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
…
The issue which arises is whether the Magistrate’s order refusing costs in the circumstances here is to be properly characterised as a final order or an interlocutory order. If the latter, then unless one of the exceptions in s 42(1a) of the Magistrates Court Act applies, there is no right of appeal and the respondent’s submission that this appeal is incompetent would be successful.
There is divergent authority in this Court whether a costs order made in circumstances such as this is to be properly characterised as a final order or an interlocutory order.
In McKelliff v Police[2] Perry J analysed the relevant sections of the Magistrates Court Act (as it was at that time) before concluding that where the complaint on appeal was from a Magistrate’s refusal to award costs after a complaint had been withdrawn midway through trial, as in the case here, an appeal against that order is incompetent. In reaching the conclusion that an order made in those circumstances was properly characterised as an interlocutory order, Perry J referred to two other decisions of single Judges of this Court; Mullighan J in Sullivan v Police[3] and Bleby J in Grey v City of Charles Sturt.[4]
[2] [2002] SASC 269.
[3] [2000] SASC 171.
[4] [1999] SASC 224.
Perry J agreed with the conclusion of Mullighan J who found an order made after an adjournment was granted in proceedings was interlocutory. Bleby J on the other hand reached the opposite conclusion in Grey, finding that an order for costs made after an adjournment was in truth a final order as it operated “regardless of the final outcome of the proceedings and imposes a financial liability on the appellant regardless of that outcome”.[5]
[5] Grey v City of Charles Sturt [1999] SASC 224 at [19].
In explaining why he disagreed with Bleby J in Grey, Mullighan J made the following observations:[6]
[T]he general discretion conferred by s189(1) will usually only be exercised at the conclusion of the proceedings and will need to take into account all matters pertinent to the exercise of the discretion not only as to whether costs should be awarded but also as to the amount of the award. It is to be expected that where a party has been affected in costs by the conduct of another party, any application for costs would be noted at the time it is made but decided at the conclusion of the case. An order, granting or refusing costs, made at that time would not be an interlocutory order and could be the subject of appeal.
[6] Sullivan v Police [2000] SASC 171 at [33].
Mullighan J then added the following comments:[7]
Whilst it is to be appreciated that the refusal to make an order for costs may also operate harshly against a party to proceedings in the Magistrates Court, the Legislature has struck a balance between the interests of parties and has prevented appeals from such interlocutory decisions by not granting an appeal by leave pursuant to s189 of the Summary Procedure Act and has prohibited an appeal by s42 of the Magistrates Court Act. Proceedings are completed relatively quickly in the Magistrates Court and appeals are heard expeditiously so that the harsh consequences of an erroneous exercise of discretion to refuse costs at an interlocutory stage will not be of long duration. Also, it is likely that Parliament has also recognised the undesirability of the capacity to appeal interlocutory orders of any nature except in the limited circumstances permitted by s189. It is to be expected that where a Magistrate is not disposed to make an order for costs during the course of criminal proceedings in the Magistrates Court, the application will not be finally disposed of until the completion of the proceedings.
[7] Sullivan v Police [2000] SASC 171 at [35].
Since those cases were decided s 42 of the Magistrates Court Act was amended by the insertion of additional provisions in s 42(1a). At the time when the earlier decisions were made there was a blanket prohibition in s 42 in respect of any appeal from any interlocutory order. By inserting s 42(1a)(a), (b) and (c) the legislature did ameliorate some of the harsher consequences referred to by Mullighan J in Sullivan.
Neither party took issue with the proposition that a costs order following a dismissal of a charge either by way of the prosecution tendering no evidence or by way of acquittal after a trial, is to be properly characterised as part of the final order, and it is clear from a number of authorities that the same view was taken there.[8]
[8] Hutchinson v Police (2012) 113 SASR 460 per Kourakis CJ; Curnow v Police (2008) 100 SASR 290 per Debelle J; Schloithe v Police [2011] SASC 156 per White J; George v Police [2011] SASC 178 per Kelly J; Murphy v Police (2005) 92 SASR 570 per Gray J.
For this reason I am inclined to adopt the same view as Mullighan J in Sullivan; that a costs order made at the conclusion of the proceedings is properly characterised as part of the final order as opposed to a costs orders made during the continuation of the proceedings before any final order has been made. However, that conclusion does not really solve the conundrum about the meaning of “conclusion of the proceedings” in the circumstances which arose here and in McKelliff.
In McKelliff Perry J took the view that the withdrawal of a complaint operating as it does much like a nolle prosequi, is not a “final order” in the sense of finally disposing of the rights of the parties. In reaching that conclusion Perry J observed:[9]
I admit that the matter is not without some difficulty, but I recognise that the situation may be different if an order had been made dismissing the complaint. If there was an order of dismissal, or for that matter an order in which a defendant is convicted, then an order for costs made in consequence of dismissal or conviction ought properly to be treated as part of the final order disposing of the proceedings. In those circumstances, I think it would be wrong and, indeed, quite unreal to treat the costs order as other than part of or an incidence of the order finally disposing of the rights of the parties. So that, in cases such as that, it may be that an appeal against that part of the final order disposing of the proceedings which focuses on the order for costs may be competent.
[9] McKelliff v Police [2002] SASC 269 at [23].
To my mind, the correctness of the view taken by Perry J is reinforced by the legislative scheme in the Summary Procedure Act which draws a clear distinction between matters which proceed to final conclusion by way of conviction or dismissal, as the case may require, and those which are effectively ended by permitting the withdrawal of the complaint on such terms as the court thinks fit. That withdrawal can take place at any time during the proceedings prior to final determination.
There are consequences of proceeding in either way. Those consequences are set out in s 71 of the Summary Procedure Act which provides, amongst other things, that a certificate of dismissal after the court dismisses a complaint operates as a bar to any subsequent complaint for the same matter against the same party.
Here, on one view of the matter, the proceedings were effectively brought to an end by the withdrawal of the complaint. Proceedings in the Magistrates Court are frequently concluded in this manner and this is undoubtedly the reason why neither party perhaps gave any thought to the consequences of proceeding by way of withdrawal of the complaint rather than insisting that the police tender no evidence and asking the Magistrate to formally dismiss the complaint. I make no criticism of the parties for that. Given the Magistrate’s effective pressuring of the police to withdraw the complaint it is not surprising that they chose the latter method. Nor is it surprising that the appellant chose to remain silent. Nevertheless the consequences are that the appellant, who might reasonably have expected an application for costs in the modest amount of $2,200 to have been successful, has now been deprived of a right of appeal.
In the circumstances where both parties conceded that the Magistrate’s refusal to award costs was plainly erroneous, I consider that a real injustice has resulted. In light of the legislative scheme to which I have referred, I prefer the reasoning of Perry J in McKelliff to that of Bleby J in Grey. Nevertheless I also consider that the amendment to s 42(1a) of the Magistrates Court Act by the insertion of subsections (a), (b) and (c) as discussed previously, is pertinent to the outcome of this appeal.
I take the view that there are special reasons within the meaning of s 42(1a)(c) why it is now in the interests of the administration of justice to give the appellant permission to appeal against the erroneous discretion exercised by the Magistrate in refusing costs.
As the only issue taken on appeal was the issue of competence it follows that having granted permission to the appellant to appeal under that section the appeal should be allowed.
In light of the divergent authority in this Court as to whether a costs order made in these particular circumstances is a final order or an interlocutory order, it may be prudent in the future for any party who wishes to preserve his or her appeal rights in the event of an adverse exercise of the costs discretion against them in similar circumstances, to first seek dismissal of the complaint under the provisions of s 69 and s 71 of the Summary Procedure Act where it is intended to make an application for costs immediately thereafter.
The order of the Magistrate refusing costs is set aside. In its place I order that the appellant have the costs of the trial in the sum of $2,200.