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…

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 UZZELL v Police

Details

AGLC: UZZELL v Police [2017] SASC 143
Case: [2017] SASC 143
Decision Date: 9 October 2017

CaseChat Overview and Summary

The appellant, Liam James Uzzell, appealed against a Magistrate's refusal to make a costs order in his favour, arguing that the Magistrate had erred in taking into account irrelevant considerations when exercising the discretion under s 189 of the Summary Procedure Act 1921 (SA). The appeal was heard in the Supreme Court of South Australia, which has appellate jurisdiction over decisions of Magistrates Courts. The appeal hinged on whether the Supreme Court had the authority to hear an appeal against the Magistrate’s refusal to award costs.

The primary legal issue before the Court was whether the Magistrate’s refusal to award costs was subject to appeal to the Supreme Court. This issue arose because the Magistrate had considered allegations against the appellant that had not been admitted by him and were not the subject of any determination. The respondent conceded that the Magistrate’s order was indeed affected by error. The Court had to determine whether the Supreme Court had jurisdiction to hear an appeal against the refusal of the costs order under the circumstances.

The Court held that the refusal to award costs was subject to appeal to the Supreme Court. It reasoned that the refusal to award costs was a reviewable error of law, and therefore appealable to the Supreme Court. The Court found that the Magistrate had taken into account irrelevant considerations, which was a clear error in exercising the discretion under s 189 of the Summary Procedure Act. The Court concluded that the error was of a kind that warranted the exercise of the Supreme Court’s appellate jurisdiction. The appeal was allowed, and the matter was remitted to the Magistrate with directions to award costs to the appellant.

The final orders of the Court were that the appeal be allowed, and the matter be remitted to the Magistrate with directions to award costs to the appellant, Liam James Uzzell. The Court also noted that the respondent had conceded that the Magistrate’s order refusing costs was affected by error and that the error was of a kind that warranted the exercise of the Supreme Court’s appellate jurisdiction.

Orders

Orders of the court

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Background

Background to the litigation

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:51.00COSTS51.01Subject 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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