Madden v Commissioner of Police [2021] QDC 152

The appellant was charged with a single count of fraud causing detriment.

The appellant was issued with a notice to appear in relation to seven counts of fraud and one count of attempted fraud ("the second group of charges").

The one count of fraud causing determent which the appellant was charged with on 19 July 2016 was discontinued, as were six of the fraud charges from the second group of charges. The remaining two charges, being charge 5 (fraud) and charge 7 (attempted fraud) were returned to police prosecutions for summary prosecution.

The appellant was issued with a notice to appear in relation to a further seven fraud charges ("the third group of charges").

Five of the seven charges from the third group of charges were discontinued. The remaining two charges, being charges 2 and 3 were returned to police prosecutions for summary prosecution.

The appellant was advised that charges 2 and 3 from the third group of charges would be discontinued. They were not dismissed at this time as the appellant foreshadowed a potential application for costs depending on the outcome of charges 5 and 7 from the second group of charges.

The appellant was advised that charge 7 from the second group of charges was also being discontinued Once again the appellant foreshadowed a costs application depending on the outcome of charge 5. She did not want charge 7 dismissed until the outcome of charge 5 was known.

The appellant was advised that charge 5 from the second group of charges would be discontinued.

The appellant prepared written submissions seeking costs pursuant to s158B(2) of the Justices Act 1886 (Qld).

The appellant's matter had been listed for hearing on this day. In a piecemeal way the police prosecutor informed the Court that counts 5 and 7 from the second group of charges and counts 2 and 3 from the third group of charges were being discontinued and the magistrate dismissed these charges. The appellant's application for costs was adjourned to 19 February 2020 with directions for the respondent to file any material prior to this date. The file was endorsed by the magistrate on this day to the effect that the respondent had offered no evidence in respect of any of the four charges. It was noted that the charges were dismissed and that the appellant was discharged in relation to them.

A police prosecutor who had not appeared at the hearing on 12 December 2019 provided written submissions on behalf of the respondent conceding that it was proper for a costs order to be made in favour of the appellant but disputed the quantum of such an order.

The matter was mentioned before another magistrate. The issue of whether the Court had the jurisdiction to award costs was raised by a different police prosecutor. The magistrate determined that she did not have jurisdiction to hear the matter. It was relisted for 19 March 2020 before the initial magistrate.

The initial magistrate heard the appellant's application for costs and reserved her decision. The police prosecutor submitted that the court did not have jurisdiction to hear the matter as the charges had been dismissed. It was explained by the prosecutor that when he provided the written submissions dated 30 January 2020 he had mistakenly thought that the charges had not been dismissed on 12 December 2019, but rather had been adjourned to enable the costs application to be heard and determined.

The appellant provided further written submissions to the effect that the costs order ought to be made in circumstance where the prosecutor was aware at the time of the hearing on 12 December 2019 that a costs application was to be made and had requested an adjournment of it.

Further written submissions were provided on behalf of the respondent to the effect that the Court did not have jurisdiction to award the appellant's costs and submitted that the appellant's application in this regard should be dismissed.

The magistrate delivered her reasons and decision having determined that the Court did not have the jurisdiction to order the appellant's costs. The application for costs was dismissed.

• [7] The appeal is brought pursuant to section 222 of the Justices Act 1886 (Qld) ("the Act"). This section provides that a person aggrieved by an order made by a justice in a summary way on a complaint for an offence, may appeal within one month after the date of the order to a District Court judge. This refers to an order disposing of the complaint and does not include an order in relation to an application made during the course of the proceedings instituted by the complaint.[1] The appellate court can confirm, set aside or vary an order or make any other order considered just.[2]
• [8] In Bode v Commissioner of Police[3], McMurdo JA confirmed that the task of an appellate court conducting a rehearing is as described by the High Court in Robinson Helicopter Company Inc v McDermott as follows:

"A court of appeal conducting an appeal by way of rehearing is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings."[4]

• [9] Sections 158 and 159 of the Act are particularly relevant to the disposition of this appeal. Section 158(1) reads:

"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 costs as to them seem just and reasonable."

"The sum so allowed for costs shall in all cases be specified in the conviction or order of dismissal, or order striking out a complaint for want of prosecution."

• [11] The pivotal question is whether the magistrate dismissed the complaints in relation to the four charges on 12 December 2019. The transcript of the proceeding shows that the hearing relevantly unfolded in the following way:

(i) The police prosecutor informed the magistrate that no evidence was being offered in respect of this matter and that the Court had been notified of this via correspondence about one week earlier.

(ii) The magistrate enquired as to whether this was in relation to charge 7 and the prosecutor responded that this was correct.

(iii) The police prosecutor informed the magistrate that there would be an application by counsel for the appellant with material to be filed with respect to that application.

(iv) Counsel for the appellant explained to the magistrate that there was only ever one matter listed for hearing that day and this was charge 5 and there was another charge that was going to be discontinued by the respondent.

(v) The police prosecutor clarified that it was all the charges that should be dismissed and the magistrate then ordered "So prosecution having offered no evidence on charges 5 and 7 of eight, those charges are dismissed and the defendant is discharged".

(vi) The police prosecutor then informed the magistrate that the appellant had filed an application for costs. Counsel for the appellant interjected to inform the magistrate that it had not been filed but that he had an application and supporting affidavit material that he would be filing. He went on to say that he was aware the police prosecutor was not in a position to respond to the application and that the respondent would require some time to consider it.

(vii) The magistrate asked counsel for the appellant "but if all of those charges are discontinued, what do you make the application on? The dismissal?" Counsel for the appellant said that it was his understanding that an application for costs could be made under section 158 of the Act upon the dismissal of the charges.

(viii) The police prosecutor informed the magistrate that some of the charges had been discontinued by the Director of Public Prosecutions and she required time to ascertain why these decisions had been made.

(ix) Counsel for the appellant asked that the matter be stood down and that it was his understanding that only one charge had been listed for hearing with all other outstanding charges to be discontinued.

(x) There was a discussion about dates for the continuing conduct of the matter.

(xi) Counsel for the appellant requested that he formally place on the record that the appellant was making an application for costs.

(xii) The Court was adjourned and reconvened 59 minutes later. The police prosecutor stated that she now had the authority to discontinue all the charges that were before the Court.

(xiii) The magistrate then said "So the prosecution having offered no evidence on charges 2 and 3 of seven, those charges are dismissed and the defendant is discharged. Yes."

(xiv) The police prosecutor was obviously still somewhat confused as to which of the charges had been dismissed. She told the magistrate that no evidence was also being offered in relation to charges five and seven of the second group of charges. The magistrate explained to her that the file had already been endorsed to this effect.

(xv) Counsel for the appellant filed his material for the application for costs and the application was listed for hearing at 9am on 19 February 2020 (although it was not ultimately heard until 19 March 2020).

• [12] It was submitted by the appellant that a costs order could be made in her favour because:

(i) The application for costs had been filed and adjourned for hearing in relation to some of the charges before they were discontinued.

(ii) The respondent had been aware of the appellant's intention to make an application for costs and the application for costs was made, affidavit material and an outline of submissions were tendered and directions were made as to the filing of material in relation to the adjourned costs application.

(iii) The respondent did not raise the jurisdiction point at the time the order was made adjourning the costs application.

(iv) The decisions of Gibson v Canniffe; Kidd v Baragan; Slabon v Moore[5] and Baker v Smith (No 2)[6] are authority for the proposition that costs can be determined up until the point when the court has finished with the complaint.

(v) The application for costs only arose on the dismissal of the charges.

(vi) While the Court of Appeal decision of Bell v Carter; ex parte Bell[7] had been relied on by the respondent, it could be distinguished on the basis that it involved the dismissal of charges after a deed had been executed.

(vii) The respondent's interpretation of sections 159 and 159 of the Act leads to an injustice.

• [13] On the other hand, the respondent submitted that the court did not have the jurisdiction to award costs for the following reasons:

(i) Bell v Carter is binding and is authority for the proposition that the orders made by the magistrate on 12 December 2019 amounted to a formal dismissal, given the words that were used to dismiss the complaints and discharge the appellant.

(ii) Gibson v Canniffe can be distinguished because no formal dismissal occurred upon the defendant being acquitted.

(iii) Baker v Smith is of limited assistance as it involved a determination of what amounts to a formal conviction.

Magistrate's reasons and decision - 4 June 2020

• [14] The magistrate delivered her decision dismissing the appellant's application for costs and gave the following well considered reasons:

(i) Section 158 of the Act involves a consideration as to when an order for costs can be made.

(ii) Any arguments regarding the respondent's conduct and potential unfairness and impracticalities arising out of the interpretation of the statutory provisions must give way to a consideration of the words used in the section and the interpretation of those words in judgments in appellate courts.

(iii) Bell v Carter is authority for the proposition that no order requiring the payment of costs can be made after the formal dismissal of charges.

(iv) In Gibson v Canniffe Devereaux SC ADCJ (as his Honour then was), explained that Bell v Carter did not determine the result in that case. This is because a finding of not guilty as occurred in that case, did not purport to be a final dismissal.

(v) In Baker v Smith Porter QC DCJ considered that Bell v Carter did not determine the result in that case.

(vi) A consideration of the relevant authorities reveals that an order for costs cannot be made once there has been a formal dismissal of the charge or complaint. The timing of the filing of an application and purported adjournment for the making of directions for the determination of the application for costs is irrelevant. The application must be made, considered and determined prior to any formal dismissal of the complaint.

(vii) It is difficult to comprehend what more the Court could have done on 12 December 2019 to formalise the dismissal. The words said in court and the file endorsement undertaken on that day distinguish this matter from Gibson v Canniffe and Baker v Smith.

(viii) The respondent had acted appropriately and the request for an adjournment of the costs application was an unintended consequence.

(ix) The orders made on 12 December 2019 amounted to a formal dismissal and the court had no jurisdiction to award costs.

• [15] Central to the resolution of this issue is the Court of Appeal decision of Bell v Carter. In that case, at first instance on 1 July 1991 the magistrate dismissed two charges against the defendant of behaving in a disorderly manner and of resisting the complainant in the execution of his duty. The defendant had executed a deed which precluded him from seeking costs upon the dismissal of the charges. Despite this he made an application for costs on that day. The complainant did not object to or argue against the application or refer the Court to the deed. Rather the police prosecutor informed the Court that the application was opposed. The defendant contended that the determination of the quantum of the costs should be adjourned to enable relevant material to be placed before the Court. The transcript of the hearing recorded that the magistrate adjourned the question of costs to a date to be fixed to enable this to occur. However, the endorsement on the bench charge sheet recorded that the magistrate had dismissed the charges and had adjourned the quantum of those costs to a date to be fixed. Then on a later date, the magistrate purported to fix the costs and to order that the complainant pay the costs in a fixed sum. The complainant appealed.
• [16] The Court of Appeal considered it was unclear whether on 1 July 1991, the magistrate made an order for costs leaving quantum to be fixed at a later date, or alternatively made no order for costs although he made an intimation to do so. It was considered that this did not need to be resolved. This is because it was held that 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 question of costs. The complainant was therefore successful in the appeal.
• [17] The appellant has sought to distinguish Bell v Carter on the basis that it involved the dismissal of charges after a deed had been executed. This factual distinction is irrelevant to the disposition of this appeal. The execution of the deed was a separate and distinct potential basis for opposing the defendant's application for costs and was not relied on by the Court of Appeal in allowing the appeal.
• [18] I agree with the magistrate that Bell v Carter is appellate authority for the proposition that the effect of section 159 of the Act is that no order requiring the payment of costs can be made after the formal dismissal of charges. As the Court of Appeal said on page 4:

"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 the position to make its final determination on the question of costs."

• [19] In my view the magistrate was correct in concluding that the charges were determined on 12 December 2019 and the court was not being asked to make a final determination as to costs until 19 March 2020. As the transcript of the hearing on 12 December 2019 reveals, the dismissal of the charges occurred in a somewhat piecemeal way. The police prosecutor was confused by which charge had been listed for hearing and which charges were being discontinued. I have set about above a summary of the way in which the confusion was resolved and the dismissals occurred. The appellant points out that the application for costs was made prior to two of the four charges being dismissed, being charges 2 and 3 of the third group of charges. While this is correct, it does not assist the appellant. This is because on 12 December 2019 the four charges were dismissed by the magistrate and the bench charge sheets were endorsed to this effect. Further, while the appellant applied for costs on this day and filed the material on which she intended to rely, the final determination of the question of costs was adjourned to a later date.
• [20] The appellant also contends that not only was the respondent aware of the appellant's intention to make an application prior to the commencement of the hearing on 12 December 2019, the police prosecutor did not raise the jurisdiction point at the time the magistrate made the order adjourning the application for costs. However, it would seem that neither the police prosecutor nor counsel for the appellant were aware of Bell v Carter. Prior to adjourning the costs application, the magistrate specifically enquired of counsel for the appellant as to the effect of the dismissal of the charges in so far as it related to an application for costs. Counsel for the appellant responded that it was his understanding that pursuant to section 158 of the Act the application could be made upon the dismissal of the charges. Bell v Carter establishes that his understanding in this regard was mistaken. It is worth observing that the history of this matter did not preclude another police prosecutor from raising Bell v Carter in preparation for the adjourned application as to costs.
• [21] It is further contended by the appellant that the magistrate's interpretation of the relevant costs provisions in the Act has consequences which are unjust. This submission, even if correct, does not assist the appellant. As the High Court observed in Esso Australia Pty Ltd v Australian Workers' Union[8] at page 582:

"The Court's ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court" (footnotes omitted)

• [22] Gibson v Canniffe is a decision of this Court and is relied on by the appellant. There were three appeals and the principal issue raised was whether the magistrate at first instance had the power to order costs to a successful defendant upon the summary dismissal of a complaint charging an indictable offence. Each defendant was found not guilty of an indictable offence by the magistrate who had dealt with the charges summarily. In each case the acquitted defendant sought but was denied costs and each appealed against the order refusing costs. The defendant in the Gibson v Canniffe appeal also raised a further related question as to when the order granting costs must be made.
• [23] By way of background, on 20 November 2007 no evidence had been offered on a charge of common assault. The prosecution then led evidence about a charge of serious assault. Late in the afternoon the magistrate gave ex tempore reasons concluding that she was not convinced beyond reasonable doubt that Mr Gibson had assaulted the complainant. Mr Gibson's counsel sought costs. The magistrate adjourned the question of costs requesting written submissions. The endorsement on the bench charge sheet read "Defendant acquitted. Reasons into the record. Submissions on costs to be filed by the 4/12/07."
• [24] On 4 December 2007, a document entitled Certificate of Dismissal ("the Certificate"), 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".
• [25] On 8 January 2008, the magistrate having considered the written submissions provided by the parties noted the earlier endorsement of acquittal on the bench charge sheet and that the Certificate of Dismissal had issued. It was considered that this amounted to a formal dismissal and the application for costs was dismissed.
• [26] On appeal, Devereaux SC ADCJ concluded that Bell v Carter did not determine the result in the case of Mr Gibson's appeal. This is because it could not be said that the magistrate in acquitting Mr Gibson, had dismissed the charge. His Honour further determined that the issuing of the Certificate pursuant to section 149 of the Act, did not of itself, create an order for dismissal. It was also noted that the Certificate was not in accordance with the file, in circumstances where the magistrate had endorsed the file by noting an acquittal, whereas the Certificate referred to a dismissal of the charge. For these reasons Devereaux SC ADCJ concluded that the magistrate was wrong to decide that there had been a formal dismissal on 20 November 2007 and that she was therefore bound not to make a costs order.
• [27] In my view it was apt for the magistrate here to have distinguished Gibson v Canniffe. It is different factually in a material respect, namely that Mr Gibson was acquitted on charges, whereas here the magistrate dismissed the four charges against the appellant. The acquittal had the consequence that section 159 of the Act did not preclude the magistrate from awarding costs in Mr Gibson's favour.
• [28] Another decision of this Court relied on by the appellant is Baker v Smith. This concerned an appeal from the Magistrates Court in relation to convictions for 48 offences arising out of the clearing of native vegetation on a rural property in the North Burnett region. On 18 November 2016 the magistrate gave her decision finding the appellant guilty of all charges It was contemplated that any matters that needed to be sorted out could be dealt with on a later date when the magistrate intended to formally pronounce the orders. On 20 March 2017 the order was made for the defendant to pay the costs of the trial. The defendant appealed.
• [29] On appeal, it was submitted by the defendant that by the magistrate's ex tempore reasons on 18 November 2016, he was convicted on each charge without the order for costs being included in the conviction. It was further contended by the defendant that this meant that the power to award trial costs was not exercisable when the magistrate purported to award such costs on 20 March 2017. Porter QC DCJ was unpersuaded by the defendant's submissions in this regard and was satisfied that the magistrate had the power to make the costs order. His Honour considered that following the approach of the Court of Appeal in Bell v Carter the magistrate did not convict by orally stating on 18 November 2016 that the appellant was guilty of all charges.
• [30] Once again, this decision can be distinguished from the present case. Relevantly, it involved a determination of whether the magistrate's statements on 18 November 2016 comprised the conviction of the appellant of the charges for the purposes of section 157 of the Act. The present case involves a determination of whether the charges were formally discharged by the magistrate on 12 December 2019. In my view, it is clear they were.
• [31] In the appellant's written submissions in respect of this appeal, reliance has been placed on another decision of this Court, being Morley v Senewiratne & Anor[9]. That matter involved a trial of four complaints against two defendants. The charges related to the defendants having interfered with protected vegetation under the Natural Assets Local Law 2003 (Qld). On 8 August 2007 the magistrate read into the record his determination that the elements for all the charges had been established. The matter was adjourned.
• [32] At a subsequent hearing on 20 September 2007, after defence counsel raised concerns with the impact of the finding of guilt from 8 August 2007 on the commencement of the limitation period for the purposes of a section 222 appeal, the magistrate set aside the previous orders. His Honour then restated his finding that the elements had been satisfied for each charge against each defendant, before proceeding to find them guilty of each offence. It was stated that this was the order as of that day for the purpose of the conviction. After hearing submissions, sentences were imposed. His Honour then proceeded to hear the application for costs before reserving his decision. Prior to the magistrate's decision being handed down, a further submission was provided on behalf of the defendants that the magistrate had no jurisdiction to make the costs order. Reliance was placed on Bell v Carter. The magistrate accepted the submissions and stated that the matter would have to be rectified on appeal.
• [33] On appeal, Robin QC DCJ accepted that before the magistrate had imposed the sentences, that it had been the magistrate's intention to award costs, and probably in an amount higher than the scale.
• [34] The complainant had also appealed on the grounds that the fines imposed by the magistrate were inadequate. His Honour was not persuaded by this. However, his Honour was satisfied that the magistrate's orders were made in error by being made when they had the consequence of preventing an order for costs when it had been the magistrate's intention to made such an order.[10] To rectify this error, his Honour set aside the orders made by the magistrate and ordered that the defendants be fined in the same amounts as had been ordered by the magistrate. Having imposed those fines Robin QC DCJ then went on to consider costs and ultimately ordered that the defendants pay the complainant's costs in a fixed amount. In short, that case is also clearly distinguishable from this case, primarily because it did not involve a determination of the issue of costs in the context of charges being dismissed.
• [35] For completeness, it is worthwhile mentioning two other cases where similar issues have arisen. Lasker v Holeszko[11] concerned an appeal from a decision of a magistrate following a summary trial for offences committed by the defendant under the Sustainable Planning Act 2009 (Qld). On 18 August 2018 the magistrate published his reasons and decision and found the defendant guilty of each charge. His Honour adjourned the matter to hear further submissions on the question of costs. A document signed by the magistrate containing the orders was sealed by the Court. On 14 September 2018 the defendant filed a notice of appeal against conviction under section 222 of the Act. The appeal was struck out by Richards DCJ on the basis that it was invalid because the complaint had not been disposed of by final orders. This was upheld by the Court of Appeal.[12] It was determined that the complaint had not been finalised until any penalty had been imposed. This accords with the reasoning applied in the cases discussed above.
• [36] Kelly v Amundsen & Anor[13] is another decision of this Court. The complainant brought two complaints against the defendants under the Peace and Good Behaviour Act 1982 (Qld). They were listed for hearing on 1 and 2 February 2012. However, on 16 January 2012, notice was given to the registry that the complaints were to be withdrawn. The matter came on before the magistrate on 18 January 2012. The complainant was not present because the notice had been given in respect of withdrawing the charges. The file showed that the magistrate dismissed the complaints rather than recording that they had been withdrawn. An order was made for indemnity costs in favour of the defendants. The costs were assessed by an assessor and the matter came back on for hearing on 23 March 2012 after the complainant filed a notice of objection in relation to the assessed costs. In a decision delivered on 13 April 2012, the magistrate determined that the order made on 18 January 2012 should be set aside and he fixed costs against the appellant. The magistrate also said that a new order would be made. The complainant contended on appeal that the magistrate erred in making the costs order on 13 April 2012 because there was no jurisdiction to do so in circumstances there the complaints had been dismissed on 18 January 2012. The appeal was upheld. The reasoning in the case accords with the principles enunciated in Bell v Carter.
• [37] In short, I concur with the magistrate's conclusions that:

(i) an order for costs cannot be made once there has been a formal dismissal of the charge or complaint;

(ii) the timing of the filing of an application and purported adjournment for the making of directions for the determination of the application for costs is irrelevant;

(iii) an application for costs must not only be made but also considered and determined prior to any formal dismissal of the complaint; and

(iv) subsequent to 12 December 2019 the court did not have the jurisdiction to make a costs order in favour of the appellant.

• [38] For the reasons set out above, the appeal is dismissed.

[1] Schneider v Curtis [1967] Qd R 300.

[3] [2018] QCA 186.

[4] [2016] HCA 22; (2016) 90 ALJR 679, 686-687.

[5] [2008] QDC 319.

[6] [2019] QDC 242.

[7] [1992] QCA 245.

[8] [2017] HCA 54; (2017) 263 CLR 551.

[9] [2008] QDC 296.

[11] District Court at Brisbane - unreported, 7 November 2018.

[12] [2019] QCA 163.

[13] [2012] QDC 201.