[13] As Lord Bingham indicated, there is no question of an arithmetical relationship. On the other hand, one does inevitably look askance at an award of costs which is so much greater than the amount of the fine. I must bear in mind that the maximum fine in this case is £1,000. It may be that in a given case the cost of investigating and of prosecuting may be significantly greater than the maximum penalty that can be imposed. That should not in principle mean that an individual can get away with what otherwise is a criminal offence simply because it is too expensive to prosecute. The fact is that in most of these cases there is unlikely to be any issue that arises which can give rise to a significant complication and a significant outlay so far as costs are concerned. However, one has to recognise that Parliament has decided that a relatively small sum of money is the maximum penalty that can be imposed. Although the justices refer to this as a serious offence, one has to put that in the context of what the penalty for it can be.
68 His Lordship then examined the schedule of costs that had been submitted to the Justices at first instance and, after considering them, reduced the costs to £2250.
69 I immediately observe that in a strict sense, Mr Justice Collins has not applied the observations of Lord Bingham as set out in proposition (4). That proposition spoke of the relationship between costs and an actual fine imposed in the context of a consideration of a defendant's capacity to pay. In the circumstances before Mr Justice Collins, his Lordship was not troubled by any consideration of any question of capacity to pay. Furthermore, his Lordship assessed the disproportionate quantification of costs by reference to the maximum fine that could be imposed in the proceedings before him rather then by reference to the actual fine imposed. Obviously, where there is a maximum penalty of £1000, it may be permissible to have regard to proportionality of costs to penalty. However, the position is arguably distinguishable when regard is had to the quantum of costs by reference to an actual fine imposed. Here any question of a recognition that "Parliament has decided that a relatively small sum of money is the maximum penalty that can be imposed" becomes irrelevant. In Cahill v State of New South Wales (Department of Corrective Services) [2010] NSWIRComm 49, I had occasion to consider a submission made by the defendant that in fixing the amount of any penalty, the Court should take into account the fact that the defendant will have to pay the costs of the prosecutor. After reviewing relevant authorities, I concluded that there was no general principle which could be discerned from the authorities that would support such a contention. Relying on the approach of the Full Bench of this Court in Wilson, previously referred to, I concluded that any consideration of the fact that a defendant would be required to pay a penalty and costs was confined to circumstances where a defendant's capacity to pay was to be taken into account. My consideration of these matters is to be found at [59] to [72] and I again adopt the approach contended for in that judgment.
70 I conclude, having regard to the authorities to which I have referred, that the question of proportionality only arises in circumstances where it is appropriate to take into account a defendant's capacity to pay. Before leaving this topic, however, I should refer, with respect, to a judgment of Simpson J in the Supreme Court of New South Wales in Director General NSW Department of Agriculture v Temmingh [2003] NSWSC 598. The defendant had been found guilty of breaches of the Stock Medicines Act 1989. He was fined a total of $5000. The prosecutor sought an order for payment of costs of $44,132.95. No question of capacity to pay arose.
71 The matters that were put to her Honour to justify a reduction in the amount of the costs sought by the prosecutor were summarised by her Honour in the following manner: