s 232(4) - costs order where appeal against findings of guilt of counts of common assault succeeded - costs of appeal could not be awarded - circumstances relevant to awarding costs of summary trial against unsuccessful police officer complainant considered - costs awarded - how costs of two wasted days in Magistrates Court should be dealt with - making of costs order adjourned to allow appellant to investigate whether any practice existed of allowing counsel fees as outlays on top of scale costs under the Justices Regulation 2004 Schedule 2.

HIS HONOUR: The appellant succeeded in his appeal against a Magistrate's finding him guilty of two charges of common assault which were of such a minor nature that there was neither conviction nor penalty, and that the Magistrate expressed surprise that the matters had come to Court.

The appeal was allowed on "technical grounds" from one point of view - in that my finding was that the Magistrate appeared to have not applied the criminal standard of proof in respect of exclusion by the Prosecution of the defence of provocation. But it should not be thought that any lack of importance is being ascribed to the standard of proof. The matters are so minor that there was no question of returning the matter to the Magistrates Court. Even if that had been possible, the parties have been subjected to a very protracted hearing.

As Mr Hungerford-Symes says, it may well be that the correct outcome is that contrary to his own view, Mr Hodgens should have been found guilty. Because of section 232(4) of the Justices Act 1886, Mr Hodgens can obtain no order for costs of his successful appeal. The Court is asked by his counsel to award costs under section 158 of the Justices Act 1886. Section 158A seems to me to have been the State legislators' response to Latoudis v Casey [1990] HCA 59; (1991) 170 CLR 534. It confines the circumstances in which an unsuccessful complainant who is a police officer.

The legislators took a more protective view of the pecuniary interests of the police force, and I suppose of the taxpayers of the State, than the majority in the High Court. The circumstances relied on by Mr Hungerford-Symes in resisting the making of an order for costs are those described in subsection (2)(a), (d), and (f). Ms Cuthbert has made it clear that she has nothing whatever to say adverse to the Police Prosecutor at the trial so far as (a) is concerned. In respect of (d), it is somewhat artificial, perhaps, to contemplate the outcome of the appeal being interpolated in the proceedings of the trial. So far as (f) is concerned, the situation is, as page 68 of the transcript of the trial shows, that Mr Hodgens failed to give his version of events to Mr Williams - the police officer who took him to the police station. Mr Hodgens had earlier been uncooperative in respect of giving his name and address. I can understand his attitude, he being the one who ended up "bloodied and bruised" on the day, rather than the two complainants who were a serving and a former police officer. Their career descriptions may well have led Mr Hodgens to think that little was to be gained by his giving a better account of himself on the day.

I think there was every reason for the police at all levels to seriously consider the merits of these prosecutions which, it seems to me, were very much a matter of upholding the discipline that the bishop, with the aid of the complainants, was seeking to establish in his church. No doubt private prosecutions for assault could have been brought by the complainants.

Instead, the determination was made to involve the whole apparatus of the State. Among those concerned by this was his Honour the Magistrate. Without saying that the proceeding was not brought or continued in good faith, in my view, taking into account all the relevant circumstances (which are not necessarily exhaustively set out in subsection (2)), it is proper that there be an order for costs of the trial. It is unfortunate that it was so protracted.

The first mention date on the 14th of July 2003 set the trial date of the 8th of October 2003. There was a day of evidence then. The matter had to be adjourned so that a date for second day could be identified. That happened on the 17th of October 2003 when the 17th of December 2003 was allocated. Apparently, no courtroom was available - alternatively, the Magistrate was not available on that day. After the parties waited an hour or so, they were sent away.

It wasn't until the 29th of April 2004 that the matter came on again, when evidence was completed. Submissions were supposed to be made on the 14th of May 2005 at 2 p.m., but that occasion failed. The submissions were made on the 9th of June 2004 and the Magistrate handed down his decision and received submissions about penalty on the 21st of July 2005. So, all up, there were eight Court days over and above this appeal. While I think there ought to be an order for costs influenced in part by Latoudis v Casey, which binds me, I think that notwithstanding the imbalance some might think exists, it is fair that the parties share the burden of Court appointments which were wasted. I would give effect to that by limiting Mr Hodgens' costs to half of the costs of 17 December 2003 and 14th of May 2004.

HIS HONOUR: If further submissions are not forthcoming from you within a month, that's a month from today-----

HIS HONOUR: -----then the costs order will be that - in respect of costs of the trial the respondent pay the appellant's costs in the amount of $4,250. Which allows $1,500 for the first day of the trial, $875 for the second day of the trial, $875 for - sorry, amounts of $875 and $250 to cover the days when final submissions were actually made and the date of the judgment and sentence submissions. And three amounts of $250 to cover three of the other four days when the matter was before the Magistrates Court. And the other orders that should be made are allow the appeal.

HIS HONOUR: Allow the appeal, set aside the findings of guilt.

HIS HONOUR: Well, quash the convictions and without remitting the matter to the Magistrates Court. I make those orders today but I defer making the costs one, against the possibility Ms Cuthbert can make good her suggestion that some Magistrates persuaded to order costs of defending failed prosecutions treat counsel's fees as outlays which may be ordered to be paid by the prosecution over and above the sums in Part 2 of the Scale of Costs in Schedule 2 of the Justices Regulation 2004. See section 18 of the Regulation and s 158 of the Act.