Gibson v Canniffe; Kidd v Baragan; Slabon v Moore [2008] QDC 319

J. Wagner Counsel for Applicant in Appeal No D221/08 C. Eberhardt Counsel for Applicant in Appeal No BD2237/08 J. Duncan Counsel for Applicant in Appeal No D1308.08 D. Katter Counsel for all Respondents

Robertson O'Gorman for Applicant in Appeal No BD2237/08 & D1308/08

Delany and Delany for Applicant in Appeal No D221/08

Queensland Police Service Solicitor for all Respondents

**[1] The principal issue raised by these three appeals is whether a magistrate has power to order costs to a successful defendant upon the summary dismissal of a complaint charging an indictable offence. Each appellant was found not guilty of an indictable offence by a magistrate who acted upon the election of a party (as it happens, the prosecution in all three cases) and dealt with the charge summarily. In each case the acquitted defendant sought but was denied costs. Now each appeals against the order refusing costs.

[2] The second issue is whether an appeal lies, under s222 of the Justices Act 1886, from the refusal to grant costs in each case.

[3] The appeal Gibson v Caniffe raises the further related question as to when the order granting costs must be made. This requires consideration of Justices Act s159.

[4] As to the first two issues, for the reasons set out below, I have concluded that the magistrate in each case had power to award costs upon dismissing the complaint of an indictable offence and that a successful defendant may appeal the refusal to grant costs.**

The appellants, their charges and the progress of each case in the Magistrates Court

[5] The appellant Kidd was charged with one count of common assault (Code s335). The notes on the bench charge sheet include the following:

(i) 11 March 2008 - remanded for hearing on 13 May 2008;

(ii) 13 May 2008 - trial listed 2/06/2008

(iii) 2 June 2008 - "plea not guilty; Pros elect summary"

[6] The trial commenced on 2 June 2008. Upon the learned magistrate inquiring: "The prosecution is obviously electing summary." The police prosecutor said, "That's so, your honour." After other procedural issues were dealt with, the trial proceeded without any further discussion of the nature of the proceedings.

**[7] The trial continued on 1 August 2008. During early discussions, defence counsel indicated he would call evidence. Upon the close of the prosecution case, without being called on, counsel called the defendant, who then gave evidence. Addresses followed and then the learned magistrate gave reasons for dismissing the charge.

[8] After argument on the question of costs the learned magistrate noted on the bench charge sheet, "I refuse to award costs on the basis there appears no power to do so as this was an indictable offence dealt with summarily."**

**[9] The appellant, Slabon, faced a charge, brought under Code s340, of obstructing a police officer in the execution of his duty. A note on the bench charge sheet dated 4/12/07 includes "not guilty", suggesting this plea was indicated to the court then. The case was later listed for hearing. On 8 April 2008, the note on the bench charge sheet includes, "matter listed for TRIAL on 24-4-08".

[10] On 24 April 2008, the case proceeded - there was no discussion about the nature of the proceedings. The prosecution called evidence, at the end of which there was a submission that there was no case to answer. That was upheld. The defendant was discharged. The learned magistrate - though clearly sympathetic to ordering costs in favour of the defendant - did not do so on the basis that there was no power to, given the definition of the term "order" in s4 of the Justices Act.**

**[11] The appellant Gibson was charged with serious assault upon a police officer (Criminal Code s340). He also faced an unrelated charge of common assault. According to notes on the bench charge sheets, the charges were listed for hearing several times. For example, on 26 June 2007, Mr Gibson was remanded to appear on 23 August 2007 for hearing. The notes include the words "summary trial". The charges were mentioned on 4 July 2007. The hearing was de-listed. The notes include, "common assault not proceeding - trial only in respect of serious assault". The defendant was remanded to appear for trial on 1 October 2007. On that day, the trial did not proceed - a ruling was made about disclosure. The defendant was remanded for hearing on 20 November 2007.

[12] On 20 November 2007, no evidence was offered on the charge of common assault. There was then discussion about production and inspection of documents under subpoena. Without any discussion about the nature of the proceedings, the prosecution then led evidence of the charge of serious assault. At the close of the prosecution case, after a short adjournment, defence counsel announced he would call evidence and the defendant Gibson then gave evidence. Submissions followed and later in the afternoon the learned magistrate gave reasons ex tempore, concluding that she was "certainly not convinced that - beyond a reasonable doubt ....that Mr Gibson in any way assaulted [the complainant]". Defence counsel sought costs. It was late in the day. The learned magistrate adjourned the question of costs requesting written submissions. The endorsement on the bench charge sheet reads, "Defendant acquitted. Reasons into record. Submissions on cost to be filed by the 4/12/07."

[13] On 4 December 2007, a document entitled, "Certificate of Dismissal", was issued under the hand of the assistant clerk of the court. It certified that on 20 November 2007 Mr Gibson was charged with the offence of serious assault and "was acquitted".

[14] On 8 January 2008, the application for costs was dismissed. The learned magistrate noted her earlier endorsement of acquittal on the bench charge sheet and that the Certificate of Dismissal had issued. That amounted to "a formal dismissal .. in respect of this matter" which precluded a subsequent order for costs because of Justice Act s159 and the decision in Bell v Carter ex parte Bell CA No 25 of 1991.**

Relevant provisions of the Justices Act 1886

[15] Under subs222(1), an appeal is available to a person who, "feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty ...".

The term order is defined, in s4, to include:

any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind made by a Magistrates Court, and any refusal by a Magistrates Court to hear and determine any complaint or to entertain any application made to it,

any order made by justices committing a defendant for trial for an indictable offence, or dismissing a charge of an indictable offence or granting or refusing to grant bail and, in the last mentioned case, whether or not the justices are sitting as a Magistrates Court or to hear an examination of witnesses in relation to an indictable offence (underlining and bold added)

**[16] The term charge of an indictable offence is defined in s4 as "a charge of an indictable offence as such".

[17] The essential distinction drawn in the definition of the term "order" is between orders made by the court as Magistrates Court and orders made by the court as justices hearing an examination of witnesses in relation to an indictable offence. This distinction continues throughout the Act and leads to the resolution of the first two issues in these appeals.

[18] Exceptions to the right of appeal provided for by s222 include the following:**

"if the order the subject of the proposed appeal is an order of justices dealing summarily with an indictable offence, a complainant aggrieved by the decision may appeal under this section only against sentence or an order for costs;" (subs222(2)(b))

[19] A complainant may, therefore, only appeal against that part of an order dealing summarily with a charge of an indictable offence which concerns costs. The complainant may not appeal against the summary conviction or acquittal of an indictable offence. This is consistent with the position under the Criminal Code, Chapter 67, which provides for various forms of appeal but not an appeal by the state against an acquittal, leaving aside the exceptions to the double jeopardy rules in Code Chapter 68.

[20] Part 4 of the Act contains general procedure provisions. It contains provisions which apply commonly to simple offences and indictable offences being dealt with summarily. For example:

"Generally speaking, proceedings under the Act are commenced by a complaint in writing (s42). If properly joinable, two or more "matters of complaint" (whether of simple or indictable offences) may be joined in the one complaint if set out in separate paragraphs (s43)."

**[21] When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indictable offence, simple offence, or breach of duty, within the jurisdiction of such justice, the justice may issue a summons (s53).

[22] Similarly, the power to order mediation upon issuing a summons is drawn in general terms (s53A).

[23] The prosecutor or complainant is a competent witness whether the complaint is of an indictable offence or simple offence or breach of duty (s74).

[24] Section 83A "Direction hearing", applies to "a proceeding for an offence", and includes provisions common to and catering individually for summary proceedings and committal proceedings.

[25] On the other hand, Part 4 also contains provisions which recognise differences between summary and indictable proceedings. Some examples follow.

[26] The summons directs the defendant to "appear at a certain time and place before the Magistrates Court, or, as the case may require, before justices taking an examination of witnesses in relation to an indictable offence, to answer the complaint and to be further dealt with according to law." (s54)

[27] Division 6 of Part 4 of the Act provides that upon complaint of an indictable offence a justice may issue a warrant to apprehend the person; and to have the person brought before justices to answer the complaint and to be further dealt with according to law (s57). This power is available only in limited circumstances upon a complaint for a simple offence (s59).

[28] Whether the court room is deemed to be open depends on whether the justices are sitting "to hear and determine any complaint upon which a conviction or order may be made" (s70) or taking "the examinations and statements of persons charged with indictable offences for the purpose of committal for trial and the depositions of the witnesses in that behalf" (s71).

[29] Significantly, the distinction that is drawn in many provisions of the Act is between summary proceedings on the one hand and an examination of witnesses in relation to an indictable offence (the more recently enacted s83A employs the term "committal proceedings) on the other. This reflects the distinction between the judicial function (Part 6 proceedings) and the administrative committal function (Part 5 proceedings). That is, no distinction is drawn between the summary trial of a simple offence and the summary trial of an indictable offence.**

Part 5 - Proceedings in case of indictable offences

**[30] Part 5 Division 5 sets out the procedure for an examination of witnesses in relation to an indictable offence.

[31] Once the prosecution evidence is adduced, if the Court is of the opinion that the evidence "is not sufficient to put the defendant upon trial for any indictable offence, the Justices shall order the defendant, if the defendant is in custody, to be discharged" (s104(2)).

[32] But if the evidence is sufficient to put the defendant upon trial for an indictable offence the court is to invite a response from the defendant in the form set out in subs104(2). The defendant may but need not enter a plea.

[33] If the defendant says anything or gives evidence, the court again must assess the evidence, this time taking into account statements or evidence of the defence and either discharge the defendant or commit the defendant for trial (s108) or sentence (s113).

[34] Committal for trial is an administrative not a judicial function.[1] It is notable that the possible outcomes in Part 5 proceedings are committal for trial or sentence or discharge of the defendant, not dismissal of the complaint.**

Part 6 - Proceedings in case of simple offences and breaches of duty

**[35] Part 6 of the Act governs proceedings in cases of simple offences and breaches of duty. Simple offence means "any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment or otherwise."

[36] The provisions relating to the venue of the proceeding (Division 1, ss139-140), refer specifically to a complaint of a simple offence or breach of duty. Significantly, these provisions make it plain that when hearing and determining complaints of offences the court sits as the Magistrates Court. This is to be contrasted with the language of Part 5 which refers to a justice or justices conducting an examination of witnesses.

[37] If "upon the day and at the place appointed by the summons for hearing and determining a complaint of a simple offence or breach of duty" the defendant attends but the complainant does not, the justices may dismiss the complaint (s141). If "at the time and place so appointed the defendant does not appear when called and the justices are satisfied" of certain criteria, the case may proceed in the defendant's absence (s142).

[38] The term in s142, "time and place so appointed", appears to refer to "the day and place" in s141, namely that appointed by the summons for the hearing of a complaint of a simple offence or breach of duty. So, it seems, a court may proceed ex parte only in the case of a simple offence or breach of duty. Likewise, s146A provides that in certain cases not including a complaint of "an offence that is also triable on indictment", a plea of guilty may be taken and acted upon in the absence of the defendant.

[39] These provisions may be distinguished from the power to continue an adjourned hearing in the absence of a party (s147).

[40] Division 3 of Part 6 governs hearings. It provides, for example, that when the defendant is present at the hearing the substance of the complaint is to be stated and the defendant asked to plead (s145). Upon a plea of not guilty, the court is to hear the evidence and determine the matter and "shall convict the defendant or make an order against the defendant or dismiss the complaint as justice may require", or adjourn the hearing (s146). I have already referred to ss 146A and 147. Section 148 provides:**

The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross-examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.

**[41] Section 149, in Division 4 of Part 6, entitled Dismissal, allows for the justices to make an order of dismissal "if required so to do and if they think fit". The justices may issue a certificate of dismissal which is a bar to further prosecution.

[42] Similarly, the justices "shall afterwards, if required" draw up a conviction or order in proper form (s151). But this is not necessary unless a formal order is "demanded by a party ... for the purpose of an appeal ..." (s152).

[43] It is notable that the possible outcomes in Part 6 proceedings include the conviction of the defendant or the dismissal of the complaint. Dismissal is an outcome only under Part 6.

[44] Division 8 of Part 6 governs the making of orders for costs as follows.

"In all cases of summary convictions and orders including such

a conviction for an indictable offence, the justices making the

same may, in their discretion, order by the conviction or order

that the defendant shall pay to the complainant such costs as

[46] As to Costs on dismissal, s158 provides:

(1) When justices instead of convicting or making an order

dismiss the complaint, they may by their order of dismissal

order that the complainant shall pay to the defendant such

(2) When a complaint is before a Magistrates Court which the

court has not jurisdiction to hear and determine the court shall

order the complaint to be struck out for want of jurisdiction

and may order that the complainant pay to the defendant such

**[47] Section 158A makes special provision for the manner in which the discretion created by s158 is to be exercised in cases where the complainant is a police officer or public officer.

[48] Section 159 provides that the sum allowed for costs -**

"shall in all cases be specified in the conviction or order or order of dismissal, or order striking out a complaint for want of jurisdiction".

[49] Chapter 58A provides for the summary disposition of certain indictable offences. Broadly speaking, s552A lists indictable offences that must be dealt with summarily if the prosecution so elects. Section 552B lists indictable offences that must be dealt with summarily unless the defendant informs the Magistrates Court he or she wants to be tried by a jury. Indeed, with respect to a s552B charge, s552I relevantly provides:

(3) Whether or not the defendant is legally represented, unless the defendant informs the Magistrates Court that he or she wants to be tried by a jury, the Magistrates Court must ask whether the defendant is guilty or not guilty of the offence.

(4) If the defendant says 'guilty' the Magistrates Court must convict. (5) If the defendant says 'not guilty' the Magistrates Court must hear the defence.

(6) After the defendant enters a plea, the Magistrates Court must then deal with the charge summarily....."

**[50] The list in s552A includes the charges created by Code s340 and common assault.

[51] Sections 552A and 552B are subject to s552D which provides:**

(1) A Magistrates Court must abstain from dealing summarily with a charge under section 552A or 552B if satisfied, at any stage, and after hearing any submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction.

(2) If the court abstains from jurisdiction, the proceeding for the charge must be conducted as a committal proceeding.

**[52] The resolution of the first two issues in these appeals depends on the characterisation of the proceedings which led to the decisions appealed from as either Part 5 proceedings or Part 6 proceedings.

[53] The term, "as such", in the definition of the term charge of an indictable offence in s4 is designed to distinguish a charge of an indictable offence dealt with "as such" under Part 5 of the Act, administratively (the decision whether to commit for trial or discharge the defendant being an administrative one), from a charge of an indictable offence dealt with judicially under Part 6 (the decision to convict or acquit being of judicial character).

[54] The decision under Part 5 is not within the definition of order under s4. A decision to convict or dismiss, under Part 6, clearly is. The former, not being an order, cannot give rise to an order for costs and is not subject to appeal. The latter, being an order, can give rise to an order for costs under ss157 or 158 and is subject to appeal as limited by s222.

[55] In the cases under appeal, the magistrate decided, after hearing evidence either that there was no case to answer or that the charge was not proven beyond reasonable doubt. These were clearly judicial proceedings. Had, for example, any issue arisen regarding the admissibility of evidence or discretionary rejection of admissible evidence, the magistrate in each case could have dealt with it. The position is to be contrasted with the role of a magistrate conducting an examination of witnesses which does not include the exercise of discretion to exclude admissible evidence or to "make refined rulings on objections with a view to excluding evidence of witnesses at committal proceedings".[2]

[56] Under appeal, the charge was heard summarily after the election of a party to that effect under s552A. In no case did the magistrate act under s552D to convert the hearing to committal proceedings.

[57] In each case, therefore, the trial of the appellant was clearly a proceeding under Part 6 and subject to the provisions governing costs.

[58] In each case, the order dismissing the charge was an order within the definition of that term in s4 of the Act.

[59] It is clear the Act contemplates the summary conviction or dismissal of indictable offences under Part 6. Occasionally, the legislature, perhaps intending to limit the effect of a provision to proceedings on a complaint of a simple offence or breach of duty, has expressly done so - see, for example s141 referred to above. No such limitation is expressed in s158. The section should be read plainly. It applies when justices "dismiss the complaint". It permits the justices, "by their order of dismissal" to order that the complainant pay the successful defendant's costs. Complaint, as defined in s4, is not limited to a complaint of a simple offence or breach of duty.

[60] If there is a difference in the language used in s157 - which includes the words "including a conviction for an indictable offence" - it is ultimately irrelevant to the question in these appeals. The word complaint is not used in that section. Section 157 concerns summary convictions. By s4, summary conviction means "a conviction by a Magistrates Court for a simple offence". Simple offence in turn, means "any offence (indictable or not) punishable, on summary conviction before a Magistrates Court, by fine, imprisonment or otherwise." Perhaps the words, "including such a conviction for an indictable offence" are superfluous. In any case, the effect of s157 is that a successful prosecutor can apply for and be awarded costs upon the summary conviction of a defendant for an indictable offence. It would be odd if a successful defendant in such a case could not even make a similar application. A plain reading of s158 avoids such an odd outcome.

[61] The provisions of the Justices Act fit nicely with Chapter 58A of the Criminal Code. It is clear from the terms of Code s552D that once an "election" is made under either ss552A or 552B and the court acts upon that election, the proceedings are summary proceedings under Part 6 of the Justices Act unless and until the Court abstains from exercising that jurisdiction. Only then would the (summary, judicial) proceeding be conducted as a committal proceeding, pursuant to s552D.**

**[62] By way of excluding an appeal against the summary acquittal of an indictable offence, the Justices Act expressly contemplates and provides for an appeal against an order for costs by the aggrieved complainant (s222(2)(b)). The costs order, against which the complainant may appeal, could be made only under s158, that is, "by [the] order of dismissal". By providing for appeal against costs but not against the order of dismissal of a complaint of an indictable offence, the Act recognises the independent existence of the costs order, despite its owing that existence to "the order of dismissal".

[63] In Coulter v Ryan [2006] QCA 567, Holmes JA, at [10], after referring to ss222(2)(b) and 158A and Schneider v Curtis [1967] Qd R 300, said, "It might be possible to infer, from those statutory intimations, that an appeal generally lies where a costs order is made on the upholding or dismissal of a complaint, but it is not necessary to decide that. ...... one can regard a costs order made at, and in consequence of, the disposition of a complaint as one of the orders disposing of the complaint; or, as it was put in Owen v Cannavan[3], as "referable to a complaint"."

[64] The language of the Act does not preclude an appeal by a successful defendant against the refusal of an order for costs. The refusal of an application for costs is within the meaning of the term, "order" as defined in s4 and is an order "made by justices or a justice in a summary way on a complaint for an offence or breach of duty" for the purposes of s222.

[65] An alternative, perhaps better, view, with the same practical outcome, is that the appeal in each case is against that part of the order of dismissal whereby the magistrate refused to make an order for costs. That formulation honours the legislative language - that costs may be ordered "by the conviction or order" (s157) or "by their order of dismissal" (s158).

[66] The respondent argues, on the authority of Pike v Fancourt; Ex Parte Pike [1980] Qd R 437, that an order dismissing an indictable offence is not an 'order' as defined in Justices Act s4 and so neither the dismissal nor the refusal or costs is subject to appeal under s222.

[67] Pike v Fancourt was an appeal by way of order to review by a police officer of a decision to dismiss a complaint of a indictable offence on the basis of a plea of autrefois acquit. Such a position is now the subject of the express provision in s222(2)(b) referred to above.

[68] Douglas J with whom Andrews and Sheahan JJ agreed, deciding that no appeal lay from the dismissal of the charge of an indictable offence, noticed that the term "order" did not include dismissing a charge of an indictable offence. His Honour noted the definition of 'charge of an indictable offence', which was then as it is now.

[69] His Honour's analysis of the situation before the magistrate included:**

"..he had these options open to him: to hear the complaint in summary fashion, to hear the evidence and commit the respondent for trial, or to dismiss the complaint. As I understand the law all of these matters were within his own option and that of no-one else. It follows in my opinion that the respondent was in jeopardy of committal for an indictable offence, and that seems to me sufficient support for the preliminary argument advanced on his behalf."

**[70] It is sufficient to distinguish that case from the present appeals to note that the provisions of the Criminal Code, which there permitted summary dismissal of an indictable offence, were crucially different from those now in Chapter 58A referred to above.

[71] The difference in the legislative schemes is demonstrated in the passage Douglas J referred to from Gibbs J in Spiller v Scali, ex parte Scali [1966] Q.W.N. 45:**

"In the present case the Magistrate did not say that he would deal with the matter summarily, and whatever the parties and the Magistrate may have thought about the matter, the Magistrate had not, in fact, in the exercise of his discretion, decided to hear the matter summarily. The Magistrate made no decision and did nothing to convert the committal proceedings into a summary trial. The fact that the committal proceedings were wrongly conducted did not so convert them. The charge remained a charge of an indictable offence, and the dismissal was, in my view, a dismissal of a charge of an indictable offence within the definition of "order" contained in s4 of The Justices Acts, notwithstanding that the dismissal was wrongly made."

**[72] As I have noticed earlier, upon the election made pursuant to s552A or B the proceedings are summary, not committal, subject to the magistrate's decision to abstain. No decision of the magistrate is required to convert an examination of witnesses into a summary trial. The present legislation leaves no doubt about the nature of the proceedings.

[73] I also note that the Court in Pike v Fancourt paid no regard to the words "as such" in the definition of 'a charge of an indictable offence'. If, as they must, those words are to mean anything, it is to indicate the distinction I have drawn, earlier in those reasons, between an indictable offence being dealt with summarily under Part 6, and an indictable offence being dealt with as such under Part 5.

[74] The appeals, so far they relate to the refusal of the magistrates in each case to order costs upon the dismissal of the charges, are competent.**

[75] In Bell v Carter Ex parte Bell CA No 25 of 1991 the respondent, who had executed a deed which precluded him from seeking costs upon the dismissal of charges he faced, nonetheless sought costs in the Magistrates Court. The magistrate dismissed the charge, so endorsing the bench charge sheet. He then adjourned the question of costs (or the quantum of costs) and on a later date, fixed costs and ordered the appellant to pay them. In a joint judgment, McPherson and Davies JJA and Thomas J, referred to Justices Act s159 and held that whether the magistrate "made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all ..... notwithstanding an intimation of his intention to do so", both actions were beyond power. Their honours continued,

"If an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the questions of costs."

**[76] If that case applies to Mr Gibson's appeal it is binding. Were it not one may argue that the chief purpose of s159 is to obtain the certainty brought about by costs being specified and that the emphasis placed by the court on the coincidence of the order for costs and the order, say, of dismissal, was misplaced. The remaining words of the section merely refer back to the language of ss157 and 158 that the costs be ordered "by" the conviction or order or "by" the order of dismissal. A better view of the practical effect of s159 may be that while a court is entertaining an application for costs the "formal dismissal" is thereby deferred and the order is yet imperfect.

[77] I have concluded Bell v Carter does not determine the result in this case because here, it cannot be said, as it was in that case, that "there can be no doubt that on [20 November 2007] the learned magistrate dismissed the charge." On the contrary, the learned magistrate's endorsement, "Defendant acquitted. Reasons into record. Submissions on cost to be filed by the 4/12/07.", although plainly evidencing a finding of not guilty, did not purport to be a formal dismissal.

[78] After hearing the evidence and submissions, the learned magistrate, on 20 November 2007, noted it was late in the day but thought it in the interests of all that the case be decided.

[79] At a point after the learned magistrate had commented ....**

"I am not convinced beyond reasonable doubt that the defendant pushed the police officer in the manner that he said, and at no time pushed the senior constable in the manner that he alleges."

"I am certainly not convinced that - beyond a reasonable doubt, as I have said, that Mr Gibson in any way assaulted Senior Constable Caniffe on this day."

but before the learned magistrate made any orders, defence Counsel said he would be asking for costs.

**[80] The learned magistrate replied, "Look, I don't want to hear an argument on costs today, I'm going to adjourn it. I will hear an argument for costs ...."

[81] Counsel then offered to file written submissions. The offer was accepted.

[82] On 8 January 2008, after considering the written submissions, the learned magistrate commented that on 20 November 2007 "I had made an order on that day that acquitted the defendant of the charge and formally entered a - the decision." She then noted "from the court file that the certificate of that order" had issued.

[83] The learned magistrate concluded that "as a result of my making the dismissal and the certificate being issued, in accordance with the file, that a formal dismissal was made." So, on the authority of Bell v Carter, her Honour felt unable to make an order for costs.

[84] To the extent that her Honour was persuaded by the issue of the certificate under s149, she was, in my opinion, led into error. It is clear that the validity of an order of dismissal does not depend on the issue of a certificate under s149 nor does the converse apply - the mere issue by the court of a certificate, although possibly effective as described in the section, does not of itself create an order of dismissal. No authority was put before me for the creation by the assistant clerk of the certificate. Clearly the learned magistrate did not make it. There was, in effect, no evidence before the learned magistrate that she was, in terms of s149, "required to issue a certificate" nor had she thought fit to do so. It is at least arguable the certificate was not "in accordance with the file". The certificate was not "of" the magistrate's order. She noted an acquittal. The certificate was "of" a dismissal of the charge. Even if an acquittal may for some purposes be the equivalent of a dismissal, it was not, in my opinion, in the circumstances of this case, a "formal dismissal" such as to preclude an order for costs thereafter.

[85] What is clear is that, as at the end of 20 November 2007, her Honour was not finished with the complaint. She had decided not to convict the appellant but was yet to decide on costs, and an order as to which had to be made 'by the order of dismissal'.

[86] In my opinion, the learned magistrate was wrong to conclude that she had, on 20 November 2007, made a 'formal dismissal' and so was bound not to make a costs order.

[87] The learned Magistrate intimated that, had it been open to her, she would have ordered costs to the appellant on the standard scale, in the total amount of $1792.50. Her Honour said, "As I said, it was a question of credibility. It is not a particularly difficult question, .....".

[88] By his 4th ground of appeal, the appellant, Gibson, challenges her Honour's conclusion that the case did not involve any special difficulty. I am not satisfied this ground is made out. The trial itself took one day, ending, as I noted above, late in the day. Two prosecution witnesses gave evidence, as did the appellant. It might be that, on further consideration, the learned Magistrate would add other items of cost, such as the necessary appearance by Counsel on 8 January 2008.

[89] In each case, the magistrate was wrong to conclude it was not open to him or her to make an order for costs in favour of the successful defendant. In the cases of the appellants Kidd and Slabon, that was because the magistrate wrongly considered there was no power to award costs upon dismissal of a complaint charging an indictable offence. In the case of the appellant Gibson, the magistrate wrongly considered she was precluded from making an order because of the decision in Bell v Carter.

[90] Each Magistrate gave indications that costs would have been ordered for the successful defendant had the Magistrate thought it was within power. However, the position was not made plainly enough for me to act on such a basis. As a result, I consider it appropriate to allow each appeal and remit the further hearing of the complaints to the Magistrates Court. That Court can decide, in accordance with these reasons, whether costs should be awarded to each appellant and in what amount. Upon deciding that question, that court can then make the final and formal order dismissing the complaint, including a costs order if it thinks fit.

[91] I make no order as to the costs of the appeals: Justices Act subs232(4).**

In each case, I make the following identical orders.

Appeal allowed.
The learned Magistrate's order of dismissal is set aside insofar as it included the refusal of costs.
The complaint is remitted to the Magistrates Court for final disposition, including further hearing and determination, in accordance with these reasons, of the question whether costs should be awarded to the appellant and, if so, in what amount.

[1] Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533; R v Grassby (1988) 15 NSWLR 109 at 118

[2]Coco v Shaw [1994] 1 Qd R 469 at 484. And see R v Grassby (1988) 15 NSWLR 109 at 119 -

"The magistrate's function in committal proceedings is to receive, examine and permit the testing of evidence in order to determine whether there is sufficient evidence to warrant the defendant before him being put on trial .... It is not within the magistrate's function to concern himself with issues which normally would fall within the discretionary powers of a trial judge."

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