Winter v Fleet - [2002] WASCA 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: WINTER -v- FLEET [2002] WASCA 128

CORAM: WALLWORK J

HEARD: 5 APRIL 2002

DELIVERED : 5 APRIL 2002

PUBLISHED : 17 MAY 2002

FILE NO/S: SJA 1047 of 2001

BETWEEN: ALEXANDER JOSEPH WINTER
Appellant
AND
CRAIG WALTER FLEETON
Respondent

Catchwords:

Costs - Successful appeal from Court of Petty Sessions - Retrial ordered - How costs in Court of Petty Sessions should be fixed

Legislation:

Official Prosecutions (Defendants' Costs) Act 1973, s 5

Result:

Court of Petty Sessions to decide question of costs in that Court

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr C Lomma

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Mastrangelo v Reynolds [2001] WASCA 347
Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980123; 5 March 1998

Case(s) also cited:

Cachia v Hanes & Anor (1994) 179 CLR 403
Haynes v Hughes [2001] WASCA 169
Klahn v Talbot (1995) 83 A Crim R 535
O'Dea v Fletcher, unreported; SCt of WA (Murray J); Library No 920666; 20 November 1992
Williams v Beverley, unreported; SCt of WA (Parker J); Library No 980474; 24 August 1998
Winter v Fleeton [2002] WASCA 73

WALLWORK J: When the reasons in this matter were delivered on 5 April 2002 I expressed the tentative view that I should fix the costs of the earlier proceedings in the Court of Petty Session. However, as there had been no submissions made concerning the costs in the summary court the question of those costs was reserved to enable the parties to make written submissions on that question within 28 days - judgment [11].
Both parties have since made written submissions and I take them into account in coming to this decision.
In Serrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA (Parker J); Library No 980123; 5 March 1998 at 2 Parker J discussed the question I have to decide. His Honour said:
"The further question arises whether I may make an order in respect of the appellant's costs in the proceedings to date in the Court of Petty Sessions. Section 5(4) of the Official Prosecutions (Defendants' Costs) Act 1973 enables this Court to make an order as to the amount of costs in the summary court but only where 'a defendant is successful by reason of the Appeal Court reversing a decision of the summary court…'. The difficulty I perceive in the way of my making an order in respect of the costs of the hearing below arises primarily by the need for the decision below to have been reversed. It appears to me that s 5(4) of that Act is directed to situations such as where a conviction is quashed and an acquittal is ordered on appeal, or of course, vice versa. In such situations the order made on appeal results in a reversal of the outcome of the proceedings below.
In the present…

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 Winter v Fleet

Details

AGLC: Winter v Fleet [2002] WASCA 128
Case: [2002] WASCA 128
Decision Date: 17 MAY 2002

CaseChat Overview and Summary

The matter before the court was an appeal from a conviction in the Court of Petty Sessions. The appellant, Winter, was appealing against his conviction and sentence, arguing that there were procedural errors in the original trial. The respondent, Fleet, sought to defend the conviction and sentence, arguing that the trial was conducted correctly and that the appeal should be dismissed. The case was heard in the Supreme Court.

The central legal issue for the court to determine was whether the appellant's appeal should be allowed and, if so, whether the costs incurred in the Court of Petty Sessions should be fixed in a particular manner. The court had to consider whether the procedural errors in the original trial were significant enough to warrant a retrial and, if so, how the costs associated with the retrial should be allocated between the parties.

In delivering the judgment, the court found that the procedural errors in the original trial were indeed significant enough to warrant a retrial. The court emphasised the importance of procedural fairness in criminal trials and held that the errors made in this case had the potential to affect the outcome of the trial. The court further held that, in light of the retrial being ordered, the costs incurred in the Court of Petty Sessions should be fixed in a manner that reflected the outcome of the appeal. The court held that the respondent should bear the costs of the appeal in the Supreme Court, as well as the costs of the retrial in the Court of Petty Sessions. The court held that these costs should be assessed on the standard basis, taking into account the conduct of the parties throughout the proceedings.

The final orders of the court were that the appeal be allowed, the conviction and sentence be quashed, and a retrial be ordered. The court further ordered that the respondent bear the costs of the appeal in the Supreme Court and the costs of the retrial in the Court of Petty Sessions, to be assessed on the standard basis.

Orders