"Subject to this Act, a successful defendant is entitled to his costs."

Costs are defined in s 4 to mean any expenses that:

"(a) are properly incurred by a defendant in an official prosecution; and

(b) are due and payable, or paid, by the defendant to another person or as Court fees."

"To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, the provision which is more favourable to the defendant prevails."

It is common ground between the parties that the Official Prosecutions Act is more favourable to the defendant than the Justices Act and is therefore the governing provision.

5 In the present case the appellant was represented by the Aboriginal Legal Service. The retainer was governed by cl 42 of the constitution of the Aboriginal Legal Service of WA Inc.

6 Clause 42 provides that costs incurred by the association in the provision of legal assistance are deemed to be costs incurred by the applicant for that assistance, for the purpose of any application for an order for costs. However, this point did not arise in the present case, because the learned Magistrate did not decline to make an order for costs on the basis that the costs were not due and payable.

7 Indeed, it would not have been open to the learned Magistrate to inquire into the relationship between the appellant and his legal representative. That is because there is a deemed retainer in the absence of proof of any express agreement that costs will not be paid. In other words, if an accused person is represented by a legal practitioner - from the Aboriginal Legal Service or anywhere else - the Court must assume that the relationship of solicitor and client exists between them with a consequential obligation to pay such costs as may be due.

8 The authority for this proposition is Hudgson v Endrust (Australia) Pty Ltd (1986) 11 FCR 152, at 154 where Pincus J said:

"The court will hold in the absence of proof of an express agreement to the contrary that a solicitor who acts upon instructions for a party on the record is taken to be entitled to look to that party for costs even if the instructions have come to the solicitor from another party or from some non-party interested in the litigation."

Furthermore, in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, the High Court held that courts should make orders for costs without regard to such considerations as whether the relevant party is entitled to or is in receipt of legal aid.

9 To return to the present case: the appellant was acquitted. He had appeared by a solicitor. Under s 5 of the Official Prosecutions Act he was prima facie entitled to his costs. There were no grounds arising under s 6 of the Act which would have reduced that entitlement: and there was no suggestion of any express agreement that costs would not be payable.

10 In those circumstances the learned Magistrate should have awarded the appellant his costs. In saying that he was pursuing his previous practice; that is, of not awarding costs in favour of a person whose funding came from the government, the learned Magistrate did not exercise a proper discretion. He took into account a matter which was wholly irrelevant.

11 In those circumstances it is now appropriate for me to exercise the discretion in his place, that being an option open to me under the Justices Act. I therefore order that the appellant be entitled to his costs of the proceedings and of this appeal.