Wilson v McDonald
[2009] WASCA 39 (S)
•12 FEBRUARY 2009
WILSON -v- McDONALD [2009] WASCA 39 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2009] WASCA 39 (S) | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1094/2007 | 19 SEPTEMBER 2008 | |
| Coram: | MARTIN CJ WHEELER JA BEECH AJA | 11/02/09 | |
| 15/05/09 | |||
| 10 | Judgment Part: | 1 of 1 | |
| Result: | No order as to costs Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA) | ||
| B | |||
| PDF Version |
| Parties: | ROBERT GORDON WILSON JOSEPH McDONALD |
Catchwords: | Practice and procedure Costs Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3) Appeals in which a police officer, acting in an official capacity, is a party to proceedings Point of law of 'exceptional public importance' Discretion Consideration of analogy of civil proceedings No general rule that costs should ordinarily follow the event Application under s 10 of the Suitors' Fund Act 1964 (WA) |
Legislation: | Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3) Criminal Code (WA), s 70A Rules of the Supreme Court 1971 (WA), O 66 r 1 Suitors' Fund Act 1964 (WA), s 10(1) |
Case References: | Haynes v Hughes [2001] WASCA 169 Hoskins v Ramsden [2008] WASC 28(S) Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S) Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133 Papas v Papas [2004] WASCA 6 R v Kelly (Attorney-General's Reference No 53 of 1998) [2000] 1 QB 198 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WILSON -v- McDONALD [2009] WASCA 39 (S) CORAM : MARTIN CJ
- WHEELER JA
BEECH AJA
DECISION : 15 MAY 2009 FILE NO/S : SJA 1094 of 2007 BETWEEN : ROBERT GORDON WILSON
- Appellant
AND
JOSEPH McDONALD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE G RANDAZZO
File No : PE 23804 of 2007
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Catchwords:
Practice and procedure - Costs - Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3) - Appeals in which a police officer, acting in an official capacity, is a party to proceedings - Point of law of 'exceptional public importance' - Discretion - Consideration of analogy of civil proceedings - No general rule that costs should ordinarily follow the event - Application under s 10 of the Suitors' Fund Act 1964 (WA)
Legislation:
Criminal Appeals Act 2004 (WA), s 14(1)(h), s 20(2), s 20(3)
Criminal Code (WA), s 70A
Rules of the Supreme Court 1971 (WA), O 66 r 1
Suitors' Fund Act 1964 (WA), s 10(1)
Result:
No order as to costs
Respondent granted indemnity certificate pursuant to Suitors' Fund Act 1964 (WA)
Category: B
Representation:
Counsel:
Appellant : Mr G T W Tannin SC & Mr D E Leigh
Respondent : Mr G S MacLean
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Gavin MacLean
Case(s) referred to in judgment(s):
Haynes v Hughes [2001] WASCA 169
Hoskins v Ramsden [2008] WASC 28(S)
Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S)
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Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133
Papas v Papas [2004] WASCA 6
R v Kelly (Attorney-General's Reference No 53 of 1998) [2000] 1 QB 198
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1 MARTIN CJ: On 12 February 2009 the court published its reasons for concluding that this appeal should be allowed. On that occasion, orders were made setting aside the decision of the magistrate (acquitting the respondent and awarding him his costs of the trial) and directing that in their place a verdict of guilty be entered. Orders were also made remitting the matter to the magistrate for the determination of sentence and to deal with the question of the costs of the trial. A timetable was set for the exchange of written submissions in relation to the costs of the appeal, with a direction that that issue be determined on the papers. The parties have now filed and exchanged submissions pursuant to those directions. These are my reasons for the orders which will be made in relation to the costs of the appeal.
Submissions of the parties
2 The appellant submits that the respondent should be ordered to pay his costs of the appeal to be taxed, on the basis that costs should follow the event, and the appellant was successful in his appeal. The respondent accepts that s 14(1)(h) of the Criminal Appeals Act 2004 (WA) empowers the court to make an order as to the costs of the appeal, subject to the specific provisions contained in s 20(2) and (3) of that Act relating to appeals in which a police officer, acting in an official capacity, is a party to proceedings. The appellant in this case is a police officer, acting in that capacity. The respondent submits that a significant issue in the case, being the proper construction of s 70A of the Criminal Code (WA) was resolved adversely to the submissions of the appellant. The respondent further submits that the appeal involved a point of law of exceptional public importance, with the result that, pursuant to s 20(3)(b) of the Criminal Appeals Act, the court should make an order that the respondent be paid his costs of the appeal by the state, and that he should not be ordered to pay the appellant's costs. In the alternative, the respondent seeks an indemnity certificate pursuant to s 10(1) of the Suitors' Fund Act 1964 (WA).
The court's general discretion with respect to costs
3 Section 14(1)(h) of the Criminal Appeals Act provides, relevantly:
(1) In deciding an appeal, the Supreme Court may do one or more of the following -
…
(h) make an order as to the costs of the appeal and the costs of the proceedings in the court of summary jurisdiction.
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4 The general power to award costs conferred by that provision is, however, constrained by s 20 of the Criminal Appeals Act which is in the following terms:
20. Costs against Attorney General, JPs or police officers
(1) If the Attorney General is an appellant in proceedings under this Part, the Supreme Court must not order the Attorney General to pay the costs of any of the respondents, but the Supreme Court may order that a respondent be paid costs, and in such a case -
(a) a registrar of the Supreme Court must give that respondent a certificate sealed with the seal of the Supreme Court showing the amount of the costs; and
(b) the person may recover that amount in a court of competent jurisdiction as a debt due by the State.
(2) If a JP or a police officer, acting in an official capacity, is a party to proceedings under this Part, the Supreme Court must not order that the JP or officer is to pay any costs.
(3) Despite subsection (2), if a police officer is an appellant in an appeal under this Part and the decision appealed against -
(a) is confirmed; or
(b) if not confirmed, has in the opinion of the Supreme Court involved a point of law of exceptional public importance,
the Supreme Court may order that a respondent be paid costs, and in such a case -
(c) the Supreme Court must give that respondent a certificate sealed with the seal of the Supreme Court showing the amount of the costs; and
(d) the person may recover that amount in a court of competent jurisdiction as a debt due by the State.
6 In the context of statutory provisions conferring upon the court a discretion with respect to the costs of criminal proceedings, judges of this court have from time to time expressed the view that the ordinary rule is
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- that costs should follow the event: see for example, Hoskins v Ramsden [2008] WASC 28(S) [17]; Haynes v Hughes [2001] WASCA 169 [34]. That is of course the ordinary rule in civil proceedings in this court: see Rules of the Supreme Court 1971 (WA),O 66 r 1.
7 However, the analogy between civil proceedings and appeals to this court in respect of criminal proceedings before magistrates is far from perfect. By the express provisions contained in s 20 of the Criminal Appeals Act, the legislature has recognised that particular provisions with respect to costs are required because of the public component of appeals in criminal proceedings, including the particular role of public officials in relation to those appeals. Although some appeals to this court from the decisions of magistrates may arise in respect of offences that have a regulatory character, and which may be more analogous to civil proceedings in this court, many appeals, including this one, relate to the enforcement of the criminal laws of the state. There is a strong element of public interest in the enforcement of those laws, which is an element that is often lacking in civil proceedings in this court.
8 The appellate jurisdiction of this court with respect to the decisions of magistrates in criminal proceedings also has a supervisory character. Amongst the interests served by the exercise of that jurisdiction is the clarification and elucidation of the law to be applied, and the practices and procedures to be adopted by magistrates in the exercise of their criminal jurisdiction. The public importance of that jurisdiction cannot be overstated, as it is the magistrates of this state who hear and determine the vast majority of criminal charges brought.
9 Considerations of this kind led a majority of the High Court to conclude that where a general discretion was conferred in relation to the costs of summary criminal proceedings before magistrates, there was no direct analogy with civil proceedings, with the result that there was no general rule to the effect that costs ordinarily follow the event: see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 per Mason CJ at 543, per Dawson J at 547 - 561 (Brennan J concurring), per McHugh J at 568 - 569; also see Papas v Papas [2004] WASCA 6 [9].
10 Accordingly, with respect to those who may have expressed a contrary view, the provisions of the Criminal Appeals Act with respect to costs should not be construed as importing a general rule to the effect that costs should ordinarily follow the event. Rather, outside the specific topics covered by s 20 of that Act, the Act should be construed as conferring a general and unconstrained discretion with respect to costs, to
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- be exercised by reference to all relevant circumstances, including any relevant aspect of the public interest.
The respondent's claim for costs
11 The respondent asserts that this case falls within s 20(3)(b) of the Criminal Appeals Act, because the appellant was a police officer, the decision appealed against was set aside, and the case involved a point of law of exceptional public importance.
12 There is no doubt that the case involved a point of law. That point was the proper construction of s 70A of the Criminal Code. The point was restricted to the proper construction of that provision, and had no implications beyond that particular provision. There is no evidence before the court as to the frequency with which charges are brought under that section of the Criminal Code. However, it is clear from the authorities referred to in this court's substantive decision that the particular issue of construction, concerning the meaning to be given to a 'lawful excuse' for a trespass, has arisen from time to time in this and other jurisdictions. When assessed by reference to the maximum penalty provided in relation to the offence created by s 70A, it is obviously one of the less serious offences created by the Criminal Code. Yet its precise scope is of some significance to those in occupation of land in this state, and to those who enter land occupied by others.
13 The expression 'public importance' comprises words of plain and ordinary meaning. The expression connotes that the point of law must be of importance to the public. There are many ways in which a point of law might meet that description. One is through its capacity to affect a large number of people: see for example Mastrangelo v Reynolds [2001] WASCA 347; (2001) 25 WAR 133 [55]. Another might be the significance of the point to the maintenance of public order. It is neither possible nor desirable to attempt to exhaustively define the circumstances in which a point of law might meet that simple description.
14 The point of law which arose in this case is properly described as a point of public importance. The previous authorities in this area required reconciliation, and although infringement of s 70A of the Criminal Code will seldom give rise to the imposition of a substantial penalty, the terms and effect of the section have a significant impact upon the sanctity and privacy of those occupying land in this state, and upon the obligations of those who enter land occupied by others.
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15 However, in order to enliven the discretion conferred by s 20(3)(b) of the Criminal Appeals Act, it is necessary that the point of law involved in the appeal be of 'exceptional public importance'. The adjective 'exceptional' is another ordinary English word:
It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
- (R v Kelly (Attorney-General's Reference No 53 of 1998) [2000] 1 QB 198, 208 per Lord Bingham of Cornwall CJ; with reference to the importance of the word 'exceptional' in s 20(3)(b) of the Criminal Appeals Act also see Interim Advance Corporation Pty Ltd v Fazio [2008] WASCA 140(S) [12]).
16 The characterisation of a particular point of law as being one of 'exceptional public importance' obviously involves questions of degree, in which subjective impressions are likely to be more significant than attempts at rational evaluation. However, the construction of a particular statutory provision, involving an issue with no implications beyond that particular provision could not be said to be exceptional. To the contrary, it is the ordinary course in this court. Nor could the need to reconcile previous decisions be said to be out of the ordinary or uncommon. Further, there was nothing else about the point of law raised by this case which elevates it to being of exceptional public importance. In my view, although the point of law raised by this appeal was of public importance, it should not be characterised as being of exceptional public importance.
17 It follows that the precondition to the exercise of the power conferred by s 20(3) of the Criminal Appeals Act is not met, and the respondent's application for an order for costs in his favour pursuant to that provision should be rejected.
The proper exercise of the general discretion in this case
18 Returning then to the proper exercise of the general discretion in this case, the following factors are relevant. First, the appellant succeeded in the appeal. Second, the point of law was a point of public importance, albeit not of exceptional public importance. Third, the point involved did require the reconciliation of previous authority. Fourth, the public interest is served by the judicial enunciation of the proper construction of s 70A of the Criminal Code, because of its impact upon the rights of property owners in this state, and of the obligations of those who would seek to
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- enter land occupied by others. Fifth, the legal uncertainty created by the particular language used by the legislature, in the context of the earlier authorities, meant that it was reasonable for the respondent to oppose the appeal. Sixth, the fact that the respondent was put in a position of having to decide whether or not to respond to the appeal came about as a consequence of an error of law by the magistrate. Seventh, and perhaps most significantly of all, although the appellant was ultimately successful in the appeal, the construction of the statutory provision for which he contended was not accepted by the court. Argument with respect to construction occupied a significant proportion of the written and oral argument.
19 Weighing all these considerations, in this case the proper exercise of the general discretion with respect to the costs of the appeal is that there be no order as to those costs.
The application for the Suitors' Fund Act certificate
20 Section 10 of the Suitors' Fund Act provides that where an appeal to this court on a question of law succeeds, the court may grant to the respondent to the appeal a certificate under the Act. There is no doubt that this was an appeal on a question of law, so that the conditions for the grant of a certificate in favour of the respondent are met. Further, having regard to the circumstances to which we have already referred, including the public importance of the point of law and the previous uncertainty of the law, there is no reason in this case why a certificate should not be granted in favour of the respondent. The effect of that grant will be to enable the respondent to recoup his reasonable costs up to the maximum amount of $2,000 specified under the Suitors' Fund Act and regulations.
Conclusion
21 For these reasons, there should be no order as to the costs of the appeal. However, the respondent should be granted an indemnity certificate under the Suitors' Fund Act.
22 WHEELER JA: I have had the advantage of reading in draft the reasons for decision to be published by the Chief Justice. I agree with his Honour's conclusion that the point of law involved in this appeal was not one of "exceptional public importance" within the meaning of s 20(3)(b) of the Criminal Appeals Act 2004 (WA).
23 It is not, in my view, necessary for me to consider whether, as his Honour suggests, there is in appeals of this kind a general and
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- unconstrained discretion with respect to costs, or whether, as has sometimes been suggested, the general rule is to the effect that costs should ordinarily follow the event in such a case. That is because, whatever the starting-point, it is my view that the seven factors referred to by his Honour at [18] - and particularly the sixth and seventh of those factors - would, in either case, lead to the conclusion that the proper order in the present case is that there be no order as to costs.
24 Finally, I agree with his Honour that there should be a certificate granted under s 10 of the Suitors' Fund Act 1964 (WA), as proposed by his Honour.
25 BEECH AJA: I agree with the Chief Justice.
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