Haynes v Hughes [2001] WASCA 169

Official Prosecutions (Defendants' Costs) Act 1973 (WA), s 4, s 5, s 9

Respondent awarded costs of the appeal fixed at $4815

1 ROBERTS-SMITH J: On 9 May 2001 I handed down judgment (Haynes v Hughes [2001] WASCA 146) on an appeal by a police officer complainant against the decision of a Stipendiary Magistrate sitting in the Perth Court of Petty Sessions on 23 November 2000 whereby her Worship dismissed a charge against the respondent that on 4 May 2000 at Canning Vale he used a computer service to obtain possession of an article, knowing it to be objectionable material, contrary to s 101(1)(b) of the Censorship Act 1996 (WA).

2 I held that the appellant had made out several of his grounds of appeal but nonetheless dismissed the appeal under s 199(1)(b) of the Justices Act 1902 (WA) because the decision of the learned Magistrate was correct, although not for the reasons she gave.

3 I note in passing that in the court below the learned Magistrate made an order pursuant to s 5(2) of the Official Prosecutions (Defendants' Costs) Act 1973 (WA) ("the Costs Act") that the complainant pay the defendant's costs fixed at $2250.

4 Mr Karstaedt, counsel for the respondent, has applied for the costs of the appeal pursuant to s 5(3) of the Costs Act. Ms Pritchard, counsel for the appellant, opposed that application. Her submission was that there should be no order for costs so that each party would have to bear his own. She put this on four bases:

1. costs are discretionary and in the present circumstances the justice of the case would be met by the parties bearing their own costs;

2. the respondent was successful on grounds not advanced by his counsel and in that situation the justice of the case would not warrant an order that the respondent should have his costs;

3. the justice of the case has been met by the finding of the decision of the learned Magistrate must stand albeit her reasons were wrong, and

4. section 5 of the Costs Act does not apply here and this is not a case in which costs should be awarded under s 199(1)(g) of the Justices Act 1902 (WA).

5 It is convenient to deal with Ms Pritchard's fourth point first.

6 This was an "official prosecution" as defined in s 4(1) of the Costs Act.

7 Section 4(2) states that a defendant is successful if the charge is dismissed, withdrawn, or struck out, or a conviction thereon is quashed.

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

(2) Where a defendant is successful by reason of a decision of the Summary Court only, the Summary Court shall make an order as to the amount of his costs therein but the defendant is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour.

(3) Where a defendant is successful by reason of a decision of the Appeal Court, the Appeal Court shall make an order as to the amount of his costs in the Appeal Court.

(4) Where a defendant is successful by reason of the Appeal Court reversing a decision of the Summary Court, the Appeal Court shall make an order as to the amount of the costs in the Appeal Court and in the Summary Court.

(5) The amount of the costs ordered, other than Court fees, shall be in accordance with the scale fixed from time to time by a determination under section 58W of the Legal Practitioners Act 1893, but nevertheless the Court may make an order for payment of costs including an amount in excess of the amount for any item in that scale if the Court is satisfied that having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs for that item is desirable."

9 So far as is relevant here, s 9 provides:

(a) if the public official a party to the proceedings is a Minister of the Crown, a person employed in the Public Service of the State, a member of the Police Force, or any other person acting as agent of or under the instructions of such a person, the Clerk or Registrar, as the case requires, of the Court shall give to the defendant a certificate signed by the Clerk or sealed with the Seal of the Court, as the case requires, showing the amount of the costs ordered and on production of the certificate to the Treasurer, the defendant shall be paid such costs out of the Consolidated Fund."

10 The point advanced by Ms Pritchard is that the respondent is not a "successful defendant" on this appeal because he does not fall within the terms of s 4(2)(a) - that is on this appeal the charge was not dismissed, withdrawn, or struck out and nor was a conviction thereon quashed.

11 So far as the Justices Act is concerned, Ms Pritchard argues that although s 199(1)(g) of that Act gives the court power to make an order for costs, that subsection is subject to s 219 of the Justices Act, the effect of which would preclude an order for costs in the circumstances of this case.

12 Section 199(1)(g) of the Justices Act provides:

"(1) Upon the hearing of an appeal, the Court may do one or more of the following -

...

(g) make such other order as it thinks fit, including an order as to costs."

13 Section 219 of the Justices Act provides as follows:

"No costs shall be allowed against any justice or police officer in respect or by reason of any appeal under this Act, or of any proceedings in the Supreme Court in its control over summary convictions.

Provided that where, on an appeal brought by a police officer, the decision appealed against is confirmed, or, if not confirmed, has involved, in the opinion of the Court or Judge hearing the appeal, a point of law of exceptional public importance, costs may be allowed to the respondent. Such costs shall not be recoverable from the police officer, but the Registrar of the Supreme Court shall, in any case where costs are so allowed, give to the respondent a certificate sealed with the seal of the Supreme Court showing the amount of such costs, and, on production of the certificate to the Treasurer, the respondent shall be paid such amount which shall be charged to the Consolidated Fund."

14 Here Ms Pritchard's argument is that the general rule embodied in s 219 of the Justices Act is that no costs shall be allowed against a police officer on an appeal from a decision in a Court of Petty Sessions. That general rule is qualified by a proviso that such costs may be allowed only in two circumstances: first, where the decision appealed against is confirmed, or secondly, if not confirmed, where in the opinion of the court the appeal involved a point of law of exceptional public importance.

15 The relationship between the costs provisions contained in the Justices Act and the Costs Act was considered by Murray J in O'Dea v Fletcher, unreported; SCt of WA; Library No 920666; 20 November 1992.

16 That case concerned complaints of offences under the Road Traffic Act 1874 (WA). They were heard together. The appellant had pleaded not guilty. The case did not come until late in the day. When it was continued the following day the prosecution witnesses gave evidence and the appellant gave evidence-in-chief. The case was again adjourned, but when it was brought on for further hearing the prosecutor sought to withdraw the complaints. The appellant applied for orders that the complaints be dismissed and those orders were made. The appellant then sought an order for costs under the Costs Act but the presiding Magistrate pointed out that costs were discretionary and she considered that in the circumstances both parties should bear their own. She declined to make an order for costs.

17 The appeal to his Honour was against the learned Magistrate's refusal to award costs to the successful defendant.

18 The matter came before Murray J on an application for leave to appeal under s 184 of the Justices Act, but as both parties were represented and his Honour considered the point was one which could readily be resolved, he heard the application as the appeal, granted leave and allowed the appeal.

19 His Honour noted that at common law there was no right to costs either civil or criminal and that the right to costs is purely a creature of statute (see Perry v The Queen [1975] WAR 33, 35). The relevant statutory scheme was that provided by the Costs Act. His Honour noted that s 3 of that Act stipulates that the Act is to apply notwithstanding the provisions of any other act or any rule of court, and to the extent of any inconsistency between a provision of the Costs Act and any other statute or rule of court or practice the provision which is more favourable to the defendant prevails.

20 Murray J concluded that the appellant was a successful defendant within the meaning of s 4(2) of the Costs Act for the simple reason that each charge against him was dismissed and that under s 5(1), subject to that Act, he was entitled to his costs and that by virtue of s 5(2) the summary court was required to make such an order.

21 Although there is a discretionary power conferred by s 6 of the Costs Act there was no suggestion in the case before Murray J that the learned Magistrate had relied upon that.

22 In light of the statutory framework it was his Honour's conclusion that the grounds of appeal were made out and the appellant was entitled to his costs pursuant to s 5 of the Costs Act, that being a more favourable provision to the defendant than s 152 of the Justices Act 1902 which would otherwise have applied. His Honour accordingly made the order which ought to have been made by the learned Magistrate and awarded the appellant costs of the Petty Sessions proceedings in the sum of $750.

23 The appellant had also sought the costs of the appeal but there was a different problem in relation to that application. His Honour said (ibid 10):

"As to the costs of the appeal, it is submitted that I have the power to make an order for costs under the Official Prosecutions (Defendants' Costs) Act, s 5(3) and/or s 5(4). In my opinion those provisions do not confer power upon me in the circumstances of this appeal. They are designed respectively for the situation where a defendant successful by the decision of the court below has that status confirmed by the decision of the appeal court, and the situation where the defendant, not 'successful' as defined in s 4(2) by the decision of the court below, has that status conferred upon him by the decision of the appeal court reversing the decision of the summary court.

I regret that in my opinion those provisions do not provide me with the power to award costs and it is the case, I think, that although I would generally have the discretion to award costs and those costs would generally follow the success of the appeal, pursuant to the Justices Act s 199(1)(g), in the circumstances of this case I am precluded from making any such order by the express provision of s 219 of the Justices Act s 219 that:

'No costs shall be allowed against any Justice or police officer in respect or by reason of any appeal under this Act.'

So there may be no order as to the costs of the appeal."

24 As I apprehend his Honour's reasons, the conclusion that s 5 of the Costs Act gave him no power to award costs of the appeal in that case was because there the appellant was not "successful" in the sense that the appeal did not involve confirmation of the dismissal, withdrawal or striking out of the charges in the court below and nor were convictions quashed; nor was the appellant deemed to be successful under s 5(4) because on the appeal his Honour did not reverse the decision of the court below as to the disposition of the charges.

25 As Anderson J pointed out in Green v Espinoza, unreported; SCt of WA; Library No 980234; 6 May 1998, the purpose of s 5 of the Costs Act is to provide for the recovery by a successful defendant of his or her costs in relation to summary proceedings. His Honour cited Klahn v Talbot (1995) 83 A Crim R 535 per Rowland J at 538; per Franklyn J at 544-545; Mancini v Ward (1997) 93 A Crim R 456. The effect of s 5, his Honour said, is to confer a prima facie entitlement to an award of costs on a successful defendant in summary proceedings.

26 In that case Anderson J was concerned with an appeal against the refusal of a Magistrate to award costs to a successful defendant, having found the defendant's conduct to be disqualifying under s 6(1)(b) of the Costs Act. That is not the situation here, but his Honour's remarks about the purpose of s 5 generally are nonetheless apposite. In my view that purpose extends to the determination of proceedings on appeal from a court of summary jurisdiction.

27 The present case may be distinguished from that in O'Dea v Fletcher in that there the appeal was from the learned Magistrate's refusal to make a costs order. The decision did not involve any determination of the offences charged. Here the appellant's (complainant's) appeal was against the learned Magistrate's decision dismissing the charge. Had the appellant succeeded on this appeal, the consequence would likely have been a finding that the charge was proved and an order convicting the respondent - or at the very least that the complaint be remitted to the Court of Petty Sessions for retrial. The avoidance of those consequences does, in my view, bring the respondent within the terms of s 5(3) as a defendant who is successful because on the appeal he had maintained the dismissal of the charge against him. I consider that to be a necessary construction of the subsection and one which is in accord with the legislative purpose. To use the words of Murray J in O'Dea v Fletcher, supra, the subsection is designed for a situation in which a defendant, successful by the decision of the court below, has that status confirmed by the decision of the appeal court. This conclusion is sufficient to determine the respondent's application here but in deference to the submissions of counsel I turn to the argument as to s 199(1)(g) and s 219 of the Justices Act. That may be shortly disposed of.

28 This appeal was brought by the complainant police officer. Section 219 stipulates (inter alia) that where on such an appeal the decision appealed against is confirmed, costs may be allowed to the respondent. So far as is relevant for present purposes, "decision" is defined in s 4 of the Justices Act as meaning:

"(a) a conviction or a finding whether made following a plea of guilty or an admission of the truth of any matter or following trial; ...

(c) the dismissal of a complaint."

29 Here the learned Magistrate's dismissal of the complaint against the respondent was confirmed on the appeal. The fact that it was confirmed for reasons other than those given by her Worship is of no moment: s 219 says nothing about reasons.

30 It follows that as a matter of statutory construction s 199(1)(g) and s 219 of the Justices Act would enliven the discretion to award the respondent his costs of the appeal.

31 The next question is whether the discretion for awarding costs is to be exercised under the Justices Act provisions or those of the Costs Act.

"(1) Except as otherwise provided by this section, this Act applies notwithstanding the provisions of or under any other Act, or of or under any rule of court practice.

(2) To the extent of any inconsistency between a provision of this Act and a provision of or under any other Act, or of or under any rule of court practice, the provision which is more favourable to the defendant prevails.

...."

33 I consider the provisions of the Costs Act are more favourable than the Justices Act in this regard and so it is the former which must be applied (see Bolton v Stange [ 2001] WASCA 34 per Templeman J).

34 Notwithstanding the above, an award of costs is still discretionary. It is to the exercise of discretion that Ms Pritchard's first three points are directed. The ordinary rule is that costs follow the event. There is no suggestion here that there was any disqualifying conduct on the respondent's part within the scope of s 6(1) of the Costs Act: see Haddon & Anor v Everitt on behalf of the Commissioner for Police [2000] WASCA 53 and Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. The respondent was successful on the appeal. It would not be just for the respondent to have to bear the full costs of successfully responding to the appeal; I see no reason why the ordinary rule should not apply.

35 Ms Pritchard submitted that there is no power to order taxation of costs under the Costs Act - that I would have to actually fix the amount were I to make an order. The point seems not to have been decided. There has been some uncertainty about it in the past. That was mentioned by Parker J, in Williams v Beverly & Ors, unreported; SCt of WA; Library No 980474; 24 August 1998. In that case his Honour was concerned with three appeals which had been heard together but which ought properly not to have been consolidated. One appeal against conviction had been successful; the other two appeals were successful only as to penalty, the convictions being undisturbed. Because of the combined effect of that complication and uncertainty as to whether the words of s 5(3) of the Costs Act require an order which stipulates the actual amount of costs to be awarded, his Honour referred to a Registrar for inquiry and report the amount at which the appellant's costs in respect of his successful appeal against conviction should be fixed.

36 I incline to the view that read in the context of the section as a whole, s 5(3) of the Costs Act does require the court on appeal to specify the amount in which costs are awarded and as I am in a position to do so, as a matter of prudence I propose to take that course.

37 The problem identified by the Full Court in Klahn v Talbot, supra, was rectified by the making of the Official Prosecutions (Defendants' Costs) Determination 1999 published in the "West Australian Government Gazette" No 180 of 17 September 1999 ("the Determination"), which prescribes the relevant scale of costs.

38 Mr Karstaedt seeks an award in the sum of $4815 made up as:

39 Ms Pritchard submits that is excessive; that one full day for preparation should not be allowed and nor should a full day for hearing, the appeal having been heard from 11.30 am to 1.00 pm and then from 2.15 pm to 2.55 pm on 3 April 2001.

40 The amounts sought are the maxima under the Table to cl 6 of the Determination. However the grounds of appeal were extensive and did involve consideration of some difficult issues of fact and law. I do not consider the costs sought excessive and I will allow them.

41 There will be an order that the respondent is entitled to his costs of the appeal in the sum of $4815.