WATSON v Police - [2016] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WATSON v POLICE
[2016] SASC 123
Judgment of The Honourable Justice Doyle
9 August 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - COSTS
At the pre-trial conference, the prosecutor elected to withdraw the original Complaint and rely upon a fresh Complaint. The appellant’s counsel sought an order that the prosecution pay her costs of the original Complaint. The Magistrate refused the application. The appellant appealed against the Magistrate’s refusal to make a costs order on a number of grounds.
Held (per Doyle J), dismissing the appeal:
1. No error in the exercise of the Magistrate’s discretion has been established.
Road Traffic Act 1961 (SA) s 45; Summary Procedure Act 1921 (SA) s 189; Magistrate Court Rules 1992 (Criminal) (SA) r 51, referred to.
Konieczka v Police [2006] SASC 288; Schloithe v Police [2011] SASC 156; Graham v Police [2016] SASC 82; Latoudis v Casey (1990) 170 CLR 534; Hutchinson v Police (2012) 113 SASR 460; House v The King (1936) 55 CLR 499, considered.

WATSON v POLICE
[2016] SASC 123
Magistrates Appeal.
DOYLE J:

This is an appeal from a refusal by a Magistrate to make a costs order in favour of the appellant upon a Complaint laid against her being withdrawn.
Background
The appellant was charged, by Complaint dated 9 November 2015, with failing to keep a sufficient distance behind another vehicle that was travelling in front of her, contrary to r 126 of the Australian Road Rules. The appellant elected to be prosecuted, and the matter was set down for a pre-trial conference on 6 April 2016. The charge related to the circumstances of a collision that had occurred on 30 April 2015, when the appellant’s vehicle drove into the rear end of another vehicle.
At the pre-trial conference on 6 April 2016, counsel for the appellant indicated his client’s preparedness to have the charge on the original Complaint listed for trial. However, the prosecutor elected to withdraw the original Complaint and rely upon a fresh Complaint, charging the appellant with the more serious charge of driving without due care, contrary to s 45 of the Road Traffic Act 1961 (SA). The prosecutor informed the Magistrate that the fresh charge was based on allegations of “the same pith and substance”, and could be listed for trial.
The Magistrate inquired of counsel for the appellant whether “any issues would be raised at that stage”. In the absence of any issue being raised by the appellant, the Magistrate gave permission for the Complaint to be withdrawn,[1] and listed the charge in the second Complaint for trial on 19 May 2016.
[1] The endorsement on the file is in terms that the original Complaint was withdrawn, whereas the Magistrate’s reasons in relation to costs refer to the Complaint being dismissed. In the circumstances of this case, nothing turns on this distinction.
The appellant’s counsel then sought an order from…

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 WATSON v Police

Details

AGLC: WATSON v Police [2016] SASC 123
Case: [2016] SASC 123
Decision Date: 9 August 2016

CaseChat Overview and Summary

In Watson v Police, the appellant appealed against a refusal by a Magistrate to make a costs order in her favour upon a Complaint being withdrawn. The appellant had been charged with failing to keep a sufficient distance behind another vehicle, but the prosecutor withdrew this charge and proceeded with a more serious charge of driving without due care. The appellant applied for the prosecution to pay her costs of the original Complaint, which the Magistrate refused. The appellant argued that the Magistrate had erred in several respects, including by treating the withdrawal of the original Complaint as equivalent to the amendment of a charge, and by asserting that a finding of not guilty is necessary before a successful defendant is entitled to an award of costs.

The appeal raised questions about the exercise of the Magistrate’s discretion to award costs, and whether the Magistrate had erred in his reasoning. The starting point was that the Magistrate had a general and unfettered discretion to award costs, both as to liability and amount. However, this discretion must be exercised judicially and in accordance with settled principles regarding an award of costs, including the principle that ordinarily, or in the usual course, a successful party is entitled to an award of costs in their favour. The Magistrate had exercised his discretion to decline to award costs in the appellant’s favour, relying on the fact that the charge was withdrawn in circumstances where it was to be replaced by a charge based on the same allegations, and in circumstances where there would be no delay or inconvenience in the sense that the matter could and would still proceed to a trial at the same date it would have done on the original charge.

The appeal was dismissed. The court found that the Magistrate’s reasons were sound, and that the Magistrate had exercised his discretion in accordance with settled principles regarding an award of costs. The court did not accept the appellant’s contention that the Magistrate had erred in treating the withdrawal of the original Complaint as equivalent to the amendment of a charge, or in asserting that a finding of not guilty is necessary before a successful defendant is entitled to an award of costs. The court held that the Magistrate had been correct to decline to award costs in the appellant’s favour, given the circumstances of the case. There was no undue delay or injustice occasioned by the Prosecution in proceeding on a separate Complaint, and the matter could and would still proceed to a trial at the same date it would have done on the original charge.

No orders as to costs were made.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal from a refusal by a Magistrate to make a costs order in favour of the appellant upon a Complaint laid against her being withdrawn.Background The appellant was charged, by Complaint dated 9 November 2015, with failing to keep a sufficient distance behind another vehicle that was travelling in front of her, contrary to r 126 of the Australian Road Rules. The appellant elected to be prosecuted, and the matter was set down for a pre-trial conference on 6 April 2016. The charge related to the circumstances of a collision that had occurred on 30 April 2015, when the appellant’s vehicle drove into the rear end of another vehicle. At the pre-trial conference on 6 April 2016, counsel for the appellant indicated his client’s preparedness to have the charge on the original Complaint listed for trial. However, the prosecutor elected to withdraw the original Complaint and rely upon a fresh Complaint, charging the appellant with the more serious charge of driving without due care, contrary to s 45 of the Road Traffic Act 1961 (SA). The prosecutor informed the Magistrate that the fresh charge was based on allegations of “the same pith and substance”, and could be listed for trial. The Magistrate inquired of counsel for the appellant whether “any issues would be raised at that stage”. In the absence of any issue being raised by the appellant, the Magistrate gave permission for the Complaint to be withdrawn,[1] and listed the charge in the second Complaint for trial on 19 May 2016. [1] The endorsement on the file is in terms that the original Complaint was withdrawn, whereas the Magistrate’s reasons in relation to costs refer to the Complaint being dismissed. In the circumstances of this case, nothing turns on this distinction. The appellant’s counsel then sought an order from the Magistrate that the prosecution pay her costs of the original Complaint. The Magistrate refused the application for costs. In his reasons on the costs application, the Magistrate outlined the procedural background I have summarised above. After referring to confirmation from the prosecution that the fresh Complaint was based on the same allegations as the charge in the original Complaint, his Honour said:For the purposes of housekeeping I have acceded to Prosecutions’ application to dismiss the Complaint in the first file as it will not be appropriate to have both matters still proceed. The Magistrate referred to his inquiry of counsel for the appellant as to whether any issue would be raised at that stage, and the fact that no issue was raised. His Honour reasoned:Mr McDonough’s submissions are that costs should follow the event and by having dismissed that Complaint in the first file it could also be deemed that the defendant is not guilty of the offence or has succeeded as against the Prosecutions with that Complaint in the first file.With respect I do not agree with that proposition of counsel. Dismissal of a complaint is neither a finding of guilt nor a finding of not guilty.And in the circumstances I do not deem it appropriate that costs should follow such an event.I do not also on the same token find that there has been any undue delay or injustice occasioned by Prosecutions in these proceedings by filing the fresh Complaint because it was in any event for a pre-trial conference today and the parties are ready to proceed to trial forthwith even on the new Complaint, having already had discovery and relying on the same background circumstances as the charge in the first file.In the circumstances I am not awarding costs to the Defendant as regards the first file.The Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In addition to this more general challenge to the Magistrate’s refusal to make a costs order, the appellant contended that the Magistrate erred:1. by equating the filing of a fresh Complaint with the amendment of a charge on an existing Complaint;2. by making reference to the charge and the fresh Complaint as relying on allegations “of the same pith and substance” as the original Complaint;3. by inference, in asserting a finding of not guilty is necessary before a successful defendant is entitled to an award of costs; and4. in treating “undue delay or injustice occasioned by the Prosecution” in proceeding on a separate Complaint as a relevant consideration in determining the successful defendant’s entitlement to costs.Consideration The starting point is that s 189 of the Summary Procedure Act conferred upon the Magistrate a general and unfettered discretion in relation to costs,[2] both as to liability and amount.[2] Subject to the operation of ss 189A-189D, none of which is applicable in the present case. In exercising this discretion it was appropriate that the Magistrate have regard to r 51. It provides: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.51.02Subject to any order of the Court to the contrary, the scale of costs set out in the first schedule shall apply. Rule 51 does not operate to fetter or qualify the Magistrate’s discretion under s 189.[3] However, that discretion must be exercised judicially and in accordance with settled principles regarding an award of costs. These principles include the principle that ordinarily, or in the usual course, a successful party is entitled to an award of costs in his or her favour.[4][3] Konieczka v Police [2006] SASC 288; Schloithe v Police [2011] SASC 156 at [11]; Graham v Police [2016] SASC 82 at [7]-[8].[4] Latoudis v Casey (1990) 170 CLR 534; Schloithe v Police [2011] SASC 156 at [12]; Hutchinson v Police (2012) 113 SASR 460 at [19]. That said, in the exercise of his or her general discretion a Magistrate may, when appropriate,[5] or if good reasons exists,[6] depart from this usual course and deprive a successful defendant of some part of their costs, or make no order as to costs.[5] Schloithe v Police [2011] SASC 156 at [12].[6] Hutchinson v Police (2012) 113 SASR 460 at [20]. In taking that course here, the Magistrate relied upon the fact that the charge was withdrawn in circumstances where it was to be replaced by a charge based on the same allegations, and in circumstances where there would be no delay or inconvenience in the sense that the matter could and would still proceed to a trial at the same date it would have done on the original charge. The issue on this appeal is whether the Magistrate erred in these circumstances in declining to award costs in the appellant’s favour.