Van Gils v Police - [2008] SASC 270

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VAN GILS v POLICE
[2008] SASC 270
Judgment of The Honourable Justice David
15 October 2008
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - PARTICULAR ORDERS - ORDERS FOR COSTS - COSTS AGAINST PROSECUTOR, INFORMANT OR COMPLAINANT - DISCRETION OF COURT
Appellant charged with assault - possibility of "battered women's syndrome" defence - prosecution called no evidence at trial - magistrate dismissed charge and awarded costs to appellant according to First Schedule of the Magistrates Court Rules 1992 (SA) - whether magistrate erred in applying First Schedule and in considering bases for awarding costs.
Held: Appeal allowed - magistrate erred in applying First Schedule of Magistrates Court Rules 1992 (SA) - discretion exercised afresh - appellant awarded costs in sum of $4,000.
Summary Procedure Act 1921 (SA) s 189(1); Magistrates Court Rules 1992 (SA) r 51, referred to.
Konieczka v Police (2006) 245 LSJS 458; Curnow v Police (2008) 100 SASR 290, applied.

VAN GILS v POLICE
[2008] SASC 270
Magistrates Appeal
DAVID J.
Introduction

This is an appeal against an order for costs granted by a magistrate in favour of the appellant in the sum of $2,050 due to the dismissal of a charge laid against the appellant. The charge was dismissed as a result of the non‑attendance of the complainant at the appellant’s trial. The appellant now argues the amount awarded was inadequate in light of the special complexities of the case.
Background Facts
I set out the history leading up to the order, which is appealed against.
On 13 November 2006, a Complaint was laid against the appellant, alleging that on 29 October 2006 at Burra she intentionally applied force directly to another person, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). On 14 November 2007, the appellant appeared at the Peterborough Court and, through her solicitors, intimated a plea of guilty. The matter was adjourned to 10 December 2007, when a plea was entered and a psychological report was ordered. Because of the contents of the report, her plea of guilty was subsequently struck out on 7 April 2008 and the matter was listed for trial at Peterborough during the week commencing 26 May 2008. On that morning, there was a callover of the list of trials to be heard during that week. There had been a problem with the complainant, and he was alleged to have been admitted to Glenside Hospital with a mental illness. The prosecutor told the court he had information the complainant had been released from Glenside on 23 May 2008 and on that day had been provided with a bus ticket to return home to Burra. Arrangements had been put in place for him to be collected from his residence by the police at Burra, and transported to Peterborough for the trial once the time was fixed. Shortly after 10.00 am on 26 May 2008, the trial was set for 11.30 am. At…

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 Van Gils v Police

Details

AGLC: Van Gils v Police [2008] SASC 270
Case: [2008] SASC 270
Decision Date: 15 October 2008

CaseChat Overview and Summary

The case of Van Gils v Police involved an appeal against an order for costs granted by a magistrate to the appellant, Van Gils, due to the dismissal of a charge against her. The charge was dismissed as the complainant did not attend the trial. Van Gils argued that the amount awarded was inadequate considering the special complexities of the case, specifically the potential defence of "battered women's syndrome". The appeal was heard and determined in the South Australian Court of Appeal.

The legal issues in this case centered around the correct application of the First Schedule of the Magistrates Court Rules 1992 (SA) in awarding costs. The appeal hinged on whether the magistrate had correctly applied the First Schedule and whether he had adequately considered the special complexities of the case in making his decision. Additionally, the case considered the extent of the magistrate's discretion in awarding costs, particularly in light of the special circumstances of the case, and whether the award made was appropriate.

The Court of Appeal found that the magistrate had indeed erred in applying the First Schedule, as an amendment to the Schedule had increased the costs applicable to the case. The Court also considered the special circumstances of the case, including the novel defence of "battered women's syndrome", and the potential complexity of such a defence in the context of an assault charge. Given these factors, the Court exercised its discretion and awarded Van Gils party/party costs in the sum of $4,000, rather than the $2,050 ordered by the magistrate.

The Court of Appeal allowed the appeal and set aside the magistrate's award of costs of $2,050, substituting an award of $4,000. This decision reflects the Court's consideration of the special circumstances of the case and the appropriate exercise of its discretion in awarding costs.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against an order for costs granted by a magistrate in favour of the appellant in the sum of $2,050 due to the dismissal of a charge laid against the appellant. The charge was dismissed as a result of the non‑attendance of the complainant at the appellant’s trial. The appellant now argues the amount awarded was inadequate in light of the special complexities of the case.Background Facts I set out the history leading up to the order, which is appealed against. On 13 November 2006, a Complaint was laid against the appellant, alleging that on 29 October 2006 at Burra she intentionally applied force directly to another person, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). On 14 November 2007, the appellant appeared at the Peterborough Court and, through her solicitors, intimated a plea of guilty. The matter was adjourned to 10 December 2007, when a plea was entered and a psychological report was ordered. Because of the contents of the report, her plea of guilty was subsequently struck out on 7 April 2008 and the matter was listed for trial at Peterborough during the week commencing 26 May 2008. On that morning, there was a callover of the list of trials to be heard during that week. There had been a problem with the complainant, and he was alleged to have been admitted to Glenside Hospital with a mental illness. The prosecutor told the court he had information the complainant had been released from Glenside on 23 May 2008 and on that day had been provided with a bus ticket to return home to Burra. Arrangements had been put in place for him to be collected from his residence by the police at Burra, and transported to Peterborough for the trial once the time was fixed. Shortly after 10.00 am on 26 May 2008, the trial was set for 11.30 am. At 11.30 am, the prosecutor informed the court he had had been unable to locate the complainant. He then sought and was granted leave to withdraw the Complaint. The appellant’s counsel at trial subsequently made an application for an order for costs. He sought an order in the sum of $10,811 on an indemnity basis, as distinct from an order on a party/party basis according to the First Schedule of the Magistrates Court Rules 1992 (SA) (“the First Schedule”). The magistrate purported to order costs according to the First Schedule in the sum of $2,050.Appeal The respondent now concedes that the amount awarded by the magistrate was incorrect insofar as it purported to order costs according to the First Schedule. Due to an amendment to the First Schedule by Government Gazette dated 17 April 2008,[1] the items for which the magistrate had ordered costs amounted to a cumulative total of $3,300, rather than the lesser total of $2,050.[1] Government Gazette (SA) (17 April 2008) p 1,328. On this appeal, it is agreed between the parties that the magistrate erred in applying the wrong scale. It is also agreed that, despite r 51 of the Magistrates Court Rules, pursuant to s 189(1) of the Summary Procedure Act 1921 (SA), the magistrate was invested with a wide discretion in relation to the award of costs, and if he saw fit after considering all of the relevant circumstances, could have departed from the scale of costs fixed by the First Schedule.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

In all of those circumstances, like the magistrate, I am of the view that an award of costs on the full indemnity basis is not warranted. However, in my view, considering that the defence of “battered women’s syndrome” in the context of an assault charge is somewhat novel, and in that regard potentially complex, an award of costs slightly higher than the scale fixed by the First Schedule is warranted. I award party/party costs to the appellant in the sum of $4,000.Conclusion I allow the appeal. I set aside the magistrate’s award of costs of $2,050 and substitute an amount of $4,000.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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