Official Prosecutions (Defendants' Costs) Act 1973 (WA) s 4(2), s 5

Suitors' Fund Act 1964 (WA) s 10, s 11, s 12A(2)

Order that appellant pay respondent's costs of first appeal set aside

Respondent entitled to an indemnity certificate in respect of his costs of both appeals and an order under s 219 of the Justices Act 1902 (WA)

1 MALCOLM CJ: This is an application by motion for an extension of time within which to seek leave to appeal to this Court from an order for costs made by a Judge of this Court against the appellant in favour of the respondent in the sum of $2,500 pursuant to s 5(4) of the Official Prosecutions (Defendants Costs) Act 1973 (WA) ("the OPDC Act"), being the respondent's costs of an appeal by the respondent against a sentence imposed by the Court of Petty Sessions at Joondalup.

2 The appellant, a police officer, was the complainant in the proceedings in the Court of Petty Sessions who was represented in this Court by the State Crown Solicitor who instructed counsel for the Crown. The respondent is a young man suffering from a degree of intellectual disability and was unrepresented. In the circumstances, counsel for the Crown raising no objection, this Court granted leave to the respondent's father to speak on his son's behalf. It is acknowledged that this involved an extension of the right to assistance which was upheld in McKenzie v McKenzie [1970] 3 All ER 1034 at 1036 per Davies LJ (with whom Sachs and Karminski LJJ agreed). In recent years when litigants without representation cannot adequately speak on their own behalf, a close relative has been given leave to address the Court. The necessity to grant such leave is regrettable because it is frequently a reflection of the inadequacy of the availability of legal aid. On at least one occasion a law student who had volunteered to assist an appellant in the Court of Criminal Appeal was permitted to make submissions on behalf of an applicant who, by reason of lack of knowledge and difficulty with language, was not capable of effectively representing himself.

3 On 21 February 2001 the respondent was convicted on his plea of guilty to a complaint that on 1 July 2000 he caused bodily harm to a Mr Hunt by driving a vehicle on a road, namely Summerlakes Parade, in a manner that was, having regard to all the circumstances, dangerous to the public or any person. He was convicted on his plea and the learned Magistrate imposed a fine of $1,500, ordered that the respondent's licence be suspended for two years, and disqualified him from obtaining a licence for that period. An application for a spent conviction order was refused.

4 The respondent appealed to a single Judge of this Court pursuant to a grant of leave under s 187(1) of the Justices Act 1902 (WA). The appeal was heard on 28 May 2001 and, at the conclusion of the hearing, the learned Judge allowed the appeal, to the extent that the period of suspension was reduced from two years to one year. The repeated contention that there should have been a spent conviction order made by the learned Magistrate was rejected.

5 The reasons for judgment were delivered extemporaneously on that day and the parties were directed to file and serve submissions on the question of costs, following an application by the respondent (then the appellant) for an order for costs pursuant to s 5 of the OPDC Act, which provides that:

"(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."

6 Section 5 is qualified by s 4(2) which provides that:

(a) is successful if the charge is dismissed, withdrawn, or struck out, or a conviction thereon is quashed;

(b) is partly successful if -

(i) he is convicted of a lesser offence than that with which he was charged; or

(ii) he is charged with several offences on the same complaint and is successful in respect of one or some of them."

7 It is apparent at once that there is, at the minimum, a question whether, in the circumstances outlined, the respondent was a defendant who was "successful" within the meaning of s 4(2) of the OPDC Act for the purposes of s 5 and, in particular, for the purposes of s 5(1), (3) and (4). Unlike the various definitions in s 4(1) of the OPDC Act, the definition in s 4(2) is not prefaced by the words, "unless the contrary intention appears".

8 The respondent (then the appellant) contended that he was entitled to costs under s 5(3) of the OPDC Act, but this provision only entitles a defendant who is "successful by reason of a decision of the Appeal Court" to an order for his costs in the appeal court. What the respondent was actually doing was applying under s 5(4), which applies when a defendant "is successful by reason of the Appeal Court reversing a decision of the Summary Court ...".

9 The present appellant (then the respondent) filed submissions dated 30 May 2001 contending that the respondent (then the appellant) was not entitled to an order for costs under the OPDC Act because he was not a "successful defendant" as defined in s 4(2). It was said that the decision to impose a fine and suspend the licence was not reversed, but only varied by a reduction of the period of suspension of the licence.

10 Hence, it was argued that the present respondent was entitled only to an order under s 5(3) that the appellant pay his costs of the appeal: see, for example, Bolton v Strange [2001] WASCA 34; and Graham v Ferguson, unreported; SCt of WA; Library No 960606; 17 October 1996.

11 Under the relevant scale, the maximum amount for the preparation of the notice of appeal is $2,150 and for the bringing of the appeal with junior counsel allowing one day of preparation and one day of hearing is a maximum of $4,600. The respondent sought one half of that amount, namely, $2,300 as part of a "global sum" of $3,500 in respect of his costs. He was, however, not wholly successful.

12 Because it was not clear to the appellant when the order for costs by the learned Auxiliary Judge was made, an application for an extension of time within which to apply to this Court for leave to appeal against the order for costs was filed on 16 August 2001.

13 It appears that the part of the reasons for judgment commencing at par 27 and dealing with the question of costs was first published on 26 July 2001, approximately two months after the pronouncement of the reasons on the substantive issues in the appeal on 28 May 2001. In those circumstances, the time within which an appeal was required to be instituted against that part of the decision on costs did not expire until 16 August 2001. As that is when the present appeal was instituted, no extension of time was necessary.

14 The reasons given by the learned Judge for making the order of 26 July 2001 were as follows:

"My decision as to the costs after considering the submissions are as follows. The respondent is a police officer so by reason of s 219 of the Justices Act 1902 no order of costs can be made against him. However the Official Prosecutions (Defendants' Costs) Act 1973 provides in s 5 that, subject to the Act, a successful defendant is entitled to his costs and the Act provides a means of obtaining those costs without ordering them to be paid by the respondent. Sub-section(4) of s 5 provides that 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.

It was submitted that the definition in subs (2) of s 4 limits the operation of the Act, on appeal, to cases where the conviction is quashed. The commencement of the interpretation section provides that the interpretation of the terms contained in the section applies 'unless the contrary intention appears'. In my view the governing provisions of the Act are those contained in s 5 which provides that a successful defendant is entitled to his costs and provides that an Appeal Court shall make an order as to the amount of costs in the Appeal. I would see this as a mandatory provision that when a defendant is successful the court must exercise its discretion and make an order relating to costs which could be in an appropriate case that there be no costs by reason of the court, in its discretion, considering that the successful party for some reason is not entitled to costs or it could be for an amount of costs. A successful defendant on appeal is entitled to the exercise of the court's discretion as to costs. To apply a definition that would have the effect that a defendant who brings an appeal against sentence only is excluded from the provisions of the section would be defeating the purpose of the Act. Section 5 itself indicates a contrary intention to the application of the definition.

The decision to suspend the licence for 2 years was one of the decisions made by the learned Magistrate. The defendant has been successful in reversing that particular decision. I consider that he is entitled to an order of costs under subs (4).

The maximum under the scale is I am told in written submissions $2150 for the notice of appeal together with a fee for a one day hearing of $4600. The appellant obtained leave to appeal. It related to simple issues of fact relating to a sentence. The appeal was against two decisions of the learned Magistrate, one being the length of suspension, the other whether there should be a spent conviction. The appellant failed on the second. I would in these circumstances fix the sum at $2500. I would order that pursuant to the Official Prosecutions (Defendants' Costs) Act 1973 the appellant is entitled to the costs of the appeal fixed in the sum of $2500 and any court fees. It was not suggested nor would the appellant be entitled to any costs before the Court of Petty Sessions."

15 The appellant contends that this decision was erroneous in its:

(a) finding that the definition of a "successful defendant" in s 4(2) of the Act only applied unless the contrary intention appeared;

(b) finding that s 5 exhibited a contrary intention, namely, that a defendant who was a successful party to an appeal was entitled to costs under the Act, even where that appeal related to sentence only; and

(c) failure to find that the respondent was not a "successful defendant" for the purposes of the Act and was, therefore, not entitled to an order for his costs under that Act.

16 It was for these reasons that the appellant contended that the order made by his Honour that the respondent was entitled to be paid $2,500 in costs pursuant to the Act be set aside.

17 Section 199(1) of the Justices Act provides that:

"Upon the hearing of an appeal the Court may do one or more of the following -

(a) dismiss the appeal, or set aside, quash or vary the decision of the justices and any order made or thing done as a result of the decision;

...

(c) substitute a decision that ought to have been made by the justices;

...

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

18 This general discretion with respect to costs is qualified by s 219 of the Justices Act which provides that:

"No costs should be allowed against any justice or police officer in respect or by reason of any appeal under this Act, or of any proceeding 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."

19 Two points emerge from s 219. The first is that it was not open to the learned Judge to make an order for costs against the present appellant, who was the respondent in the appeal to the learned Judge. The second is that this appeal is an appeal to the Full Court by a police officer. In such a case, the proviso to s 219 may be invoked only if this Court is of the opinion that "a point of law of exceptional public importance" is involved. I shall return to that topic later.

20 The provision in s 5(1) of the OPDC Act that, subject to the Act, a "successful defendant" is entitled to his costs, is qualified by s 4(2) in which a defendant is described as "successful", if the charge against him or her is dismissed, withdrawn or struck out, or a conviction on such charge is quashed. In my opinion, contrary to the view expressed by the learned Judge in par 28 of his reasons, the words "unless the contrary intention appears" in s 4(1) have no application to s 4(2). On the face of it, therefore, s 4(2) of the OPDC Act set out the circumstances in which costs can be awarded to "a successful defendant" but, as expressed in s 5(1), are subject to the Act. Given that the respondent was not a successful defendant as defined in s 4(2), the question which then arises is whether that provision contains an exclusive definition of a successful defendant for the purposes of s 5.

21 In Small v Walker, unreported; SCt of WA; Library No 5777.2; 28 March 1985, Smith J was called upon to consider, on an appeal by a defendant husband, whether a Magistrate should have made an order for costs in favour of the husband following the dismissal of a complaint against him by a police officer that he had breached a restraining order by assaulting his wife. At the end of the prosecution case, a submission made by counsel for the husband that the prosecution had failed to prove an element of the offence charged, namely, that the defendant had been served personally with a restraining order which had been made under s 172 of the Justices Act, was upheld and the complaint dismissed. Counsel for the husband then sought an order for costs under the Act. The application was refused by reason of s 6 of the OPDC Act which provides that:

"The Court may order that a successful defendant is not entitled to his costs or part thereof if -

(a) the Court, having found the defendant guilty, disposes of the charge without recording a conviction;

(b) he has done or caused to be done or has omitted or caused to be omitted something (other than an act or omission the subject of the charge) which was unreasonable in the circumstances and which contributed to the institution or continuation of the proceedings; or

(c) he has done or caused to be done or has omitted or caused to be omitted something during the course of proceedings or in the conduct of the defence or appeal calculated to prolong the proceedings unnecessarily or cause unnecessary expense."

22 The learned Magistrate found that the husband was not entitled to his costs because his conduct fell within s 6(b). The husband appealed.

23 An order nisi to review the decision was granted on the ground that the learned Magistrate was in error in failing to award costs pursuant to s 5(1) of the OPDC Act, and that he erred in law in finding that the husband had done or caused to be done something, other than the act the subject of the charge, which was unreasonable in the circumstances and which contributed to the institution of the proceedings. On the appeal, counsel for the police officer was unable to point to anything which suggested that it was open to the learned Magistrate to make the finding under s 6(b), and Smith J held that there was nothing in the transcript of the proceedings below which would justify the finding made by the learned Magistrate. Accordingly, Smith J said:

"By virtue of the order dismissing the complaint, the appellant was a 'successful' defendant within the meaning of s 4(2) of the Act and in the circumstances, in my opinion, the appellant was entitled to the order for costs for which s 5 of the Act makes provision."

24 Smith J then fixed the amount of costs to which the husband was entitled in relation to the proceedings in the court below. He then sought an order for the costs of the appeal. The making of that order was opposed by counsel for the police officer on the basis that s 219 of the Justices Act precluded any costs being allowed against him in respect of an appeal under that Act.

25 Having set out the relevant provisions of the Act, Smith J noted at 3 - 4 the police officer's contention that the definition of "successful defendant" in s 4(2) provided the sole definition of a "successful defendant" for the purpose of the Act, and that the husband was not a defendant who was "successful" by reason of a decision of the "Appeal Court", which was defined in the statute as "a Court hearing an appeal against a decision of a Summary Court given in an official prosecution".

"It may well be correct to say that s 5(4) of the Act is to be construed so that it has application only when the conviction of a defendant is quashed upon appeal. But if it is correct that the words 'where a defendant is successful' wherever such words appear in the statute are to be given the restricted meaning for which counsel for the respondent contends then s 5(4) of the Act would cover the whole ground leaving nothing for sub-s(3) of s 5 to act upon. The words of that subsection are general words and there is no reason not to give them their natural and primary signification. In the present case it is not inapt, I think, to say of the appellant that 'he is successful by reason of a decision of the Appeal Court'. Notwithstanding s 219 of the Justices Act, therefore, the appellant, in my opinion, is entitled to his costs of the appeal."

27 The decision in Small v Walker was referred to by Seaman J in M (A Child) v The Queen (1994) 13 WAR 306. In that case the appellant, a girl under the age of 18 years, pleaded guilty in the Children's Court to a number of charges, but was remanded on bail on condition that she attend certain lectures on alcohol and drug addiction. She did attend the lectures and a Magistrate of the Court subsequently dismissed the charges under s 34(1)(c) of the Child Welfare Act 1947 (WA).

28 In those circumstances, the prosecution had an option to appeal against that decision under s 41 of the Children's Court of Western Australia Act 1988 (WA), or to seek its review by the President of the Children's Court pursuant to s 40 of the same Act, and chose the latter course. The appellant's counsel appeared to oppose the application for review which was dismissed. An application was then made to the President on behalf of the appellant for an order for costs pursuant to s 5 of the Act in respect of the application for review. The learned President declined to make that order because the appellant was not successful by reason of a decision of an appeal court within the meaning of s 5(3) of the Act because there was no "appeal" or "appeal court" as defined in that Act and, in any event, the appellant did not have any costs as defined in s 4 of the Act.

29 This decision was appealed on a number of grounds, including that the learned President erred in law in finding that, as the appellant was under no liability to pay costs, they were not recoverable under the Act. Seaman J concluded that a review by the President was an appeal and went on to say that:

"As Smith J said in Small v Walker (unreported, Supreme Court, WA, Library No 5777, 29 January 1985), the words of s 5(3) of the Official Prosecutions (Defendants' Costs) Act are general words and there is no reason not to give them their natural and primary signification. Furthermore, as Wallace J observed in Robson v Carter (unreported, Supreme Court, WA, Library No 4511, 19 May 1982), the legislation forms part of a legislative programme brought down to indemnify successful defendants in both civil and criminal proceedings out of public funds.

Here the prosecution drew the appellant into litigation in which the prosecution failed, and in my view, she was successful by reason of the decision of an appeal court in an appeal against a decision of a summary court within the meaning of s 5(3) of the Official Prosecutions (Defendants' Costs) Act and that grounds (a) and (b) are made out."

30 I agreed with Seaman J in that case, as did Anderson J. There was, however, no argument in that case on the issue whether or not the defendant had been "successful" within the meaning of s 4(2). In other words, the Crown did not contend that the appellant in that case had not been successful.

31 It was contended by counsel for the Crown in the present case that s 4(2) of the OPDC Act does not include within the cases in which a defendant was "successful" a case in which a defendant succeeds in an appeal against sentence. Thus, where a conviction on a charge is quashed on appeal, a defendant would be "successful" under s 4(2)(a). Similarly, a defendant would be partly successful if on appeal a conviction for an offence was quashed and he was convicted of a lesser offence or, having been convicted of several offences, was successful by having his convictions on one or more of them being quashed. A successful appeal against sentence, however, does not qualify under s 4(2).

32 In my opinion, s 4(2) sets out the conditions which have to be satisfied before it can be said that "a defendant is successful" within the meaning of s 5(2), (3) and (4) of the OPDC Act. The question which then arises is whether, having regard to s 5, s 4(2) is exhaustive of the situations in which a defendant is "successful" for the purposes of the Act. As has been seen, s 6 of the Act provides that the Court may order that a successful defendant is not entitled to all or part of his costs in certain circumstances. Section 7 of the OPDC Act provides that:

"(1) Subject to this Act, where a partly successful defendant satisfies the Court that he incurred additional costs by reason of being charged with an offence or offences in respect of which he was successful, the Court may order that he is entitled to those costs.

(2) Before exercising the discretion conferred by subsection (1), the Court may have regard to any of the circumstances referred to in paragraphs (a) to (c) inclusive of section 6 that exist in the case of the partly successful defendant.

(3) Where the court makes an order pursuant to subsection (1), subsections (2) to (5) inclusive of section 5 apply to and in relation to the order with such modifications as are necessary."

The definition of "partly successful" does not include the case where a defendant is successful in an appeal against sentence. Thus, it does not appear to have been contemplated that such a case would be covered by the legislation.

33 The legislation finds its origin in a reference by the then Attorney General to the then Law Reform Committee of Western Australia:

"To consider whether any alteration is desirable in the law relating to payment of costs to persons acquitted in prosecutions for criminal offences."

34 Paragraph 4 of the report of the Committee dated 24 August 1972 noted the intention of the Government:

"... to confine the scheme initially to summary trials and within that area costs would be awarded to acquitted persons except in special circumstances."

The Committee made it clear that if costs were to be awarded, they should not be awarded against police officers or other officials acting in the course of their duty. The Committee also recommended that it would be desirable to include appeals from summary trials, by giving the appellate court the same power to award costs as that given the court of first instance and that the power of the appellate court should extend to awarding costs in respect of the proceedings the subject of the appeal.

35 In the Second Reading Speech in the Legislative Assembly, the Attorney General, the Hon T D Evans, made no mention of any intention to make provision for an order for costs in favour of a defendant who successfully appealed against sentence: Western Australian Parliamentary Debates, Vol 200, 1973, No 3 at 3386. There is nothing in the Parliamentary Debates to indicate any intention that the proposed legislation would apply to an appeal against a sentence or penalty imposed in a Court of Petty Sessions.

36 In O'Dea v Fletcher, unreported; SCt of WA; Library No 920666; 20 November 1992, Murray J considered an appeal by a defendant against the failure of a Magistrate to award costs when charges against him were dismissed. The appeal was successful and an order for costs was made in relation to the costs in the Court of Petty Sessions. His Honour concluded, however, that no costs could be awarded in relation to the appeal. The reasons for that were stated by his Honour at 10 as follows:

"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 these 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 by 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 ... 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."

37 The possibility was raised during the course of argument in this appeal that, where the primary appeal court had, in effect, set aside the suspension of a licence for two years and substituted a one year suspension of the licence, this involved "reversing" the decision of the Court of Petty Sessions within the meaning of s 5(4).

38 The grounds upon which an application for leave to appeal may be made under s 184 of the Justices Act are set out in s 186 of that Act. The grounds include under s 186(1)(a)(iii) that the court below "imposed a sentence that was inadequate or excessive". In my opinion, while in general terms the respondent was successful before the learned Judge in having the period of the licence suspension of two years reduced to one year, it might be said that this reduction merely varied the order of the court below. In my opinion, however, the proper analysis is that the effect of his Honour's order was to set aside the order made by the learned Magistrate and substitute a lesser penalty. This decision did not involve "reversing" the decision of the learned Magistrate. It was simply a variation of penalty by way of reduction. Although in such a case the defendant was successful in obtaining a reduction in the penalty, it is not possible to construe s 5(4) as creating an additional case of success to those defined in s 4(2).

39 A further explanation for the differences in wording between subs (3) and subs (4) of s 5 of the Act is that the former applies where a defendant's appeal succeeds, but the charges are remitted to the Court of Petty Sessions for a retrial, whereas subs (4) applies where the defendant's appeal results in the charge being dismissed or quashed and no retrial is ordered. This construction of the provisions was adopted by Parker J in Sorrell v Bryant (Commissioner of State Revenue), unreported; SCt of WA; Library No 980170; 7 April 1998. Having made an order in favour of the defendant in respect of the costs of the appeal, his Honour said at 3 - 4:

"The further question arises whether I may make an order in respect of the appellant's costs in the proceedings to date in the Court of Petty Sessions. Section 5(4) of [the Act] enables this Court to make an order as to the amount of costs in the Summary Court, but only where 'a defendant is successful by reason of the Appeal Court reversing a decision of the Summary Court ...'.

The difficulty I perceive in the way of my making an order in respect of the costs of the hearing below arises primarily by the need of the decision below to have been reversed. It appears to me that s 5(4) of that Act is directed to situations such as where a conviction is quashed and an acquittal is ordered on appeal, or of course vice versa. In such situations the order made on appeal results in a reversal of the outcome of the proceeding below. In the present case, however, while it is true that the decision below has been set aside, no acquittal has been ordered. Instead the complaint is remitted to the Court of Petty Sessions so that the learned Magistrate can complete the hearing according to law. There has not been a valid determination of the complaint. In these circumstances it does not appear open to me to make any order with respect to the costs of the proceedings, so far, before the Court of Petty Sessions.

It seems to me to be the intention of [the Act] that in the present circumstances, on the completion of the hearing of the complaint which is now remitted to the learned Magistrate, the Magistrate will have to make a decision with respect to the total costs incurred in respect of the hearing of that complaint, ie both the proceedings before there was the appeal to this Court and the resumed proceedings to complete the hearing of the complaint pursuant to the order now made by this Court."

40 In my opinion, the decisions in O'Dea v Fletcher and Sorrell v Bryant are inconsistent with Small v Walker. The two later decisions are to be preferred, as being consistent with the definition of a "successful defendant" being limited to the circumstances defined in s 4(2) of the Act. This interpretation is also supported by Miles v Orr, unreported; SCt of WA; Library No 950171; 13 April 1995 per Parker J at 2; Williams v Beverly & Ors, unreported; SCt of WA; Library No 980474; 24 August 1998 per Parker J at 5; and Paterson v Steer [2000] WASCA 250 per Miller J at [8].

41 Because the appeal did not have the effect that the charge was dismissed, withdrawn or struck out, or a conviction imposed upon the appellant quashed, the respondent (then the appellant) was not a defendant who was "successful" within the meaning of s 4(2)(a), or "partly successful" within the meaning of s 4(2)(b). It follows, as Miller J concluded in Paterson v Steer at [8], that the relevant provisions of the Act:

"... are inapplicable to a successful appellant whose appeal relates only to sentence, as s 5(2) of the Act provides that a defendant is 'successful' for the purposes of that Act if the charge is dismissed, withdrawn, struck out or a conviction is quashed."

42 It follows, I must say with some regret, that, notwithstanding his success in the first appeal heard by the learned Judge, the respondent was not entitled to an order for costs under the OPDC Act as he was not a defendant who was "successful".

43 It follows from the conclusions which I have reached that the appellant should be granted leave to appeal, the appeal allowed and the order made by the learned Judge that the respondent (then the appellant) be paid costs under the OPDC Act in the sum of $2,500 must be set aside with costs.

44 The respondent contended that, in the event that this Court determined that he is not entitled to costs under the OPDC Act, the Court should find pursuant to s 12A(2)(a) of the Suitors' Fund Act 1964 (WA) that in this case, but for the provisions of the OPDC Act and the Justices Act, the Court would have ordered the costs of the appeal from the Magistrate to be paid by the present appellant. Section 12A(2) of the Suitors' Fund Act provides that:

"Where after the coming into operation of the Suitors' Fund Act Amendment Act 1971, an appeal on a question of law succeeds and the Court that allowed the appeal would, but for the provisions of some other Act or law, have ordered costs of the appeal, fixed or to be taxed, or some proportion thereof, to be paid by the respondent -

(a) that Court shall make a finding to that effect and shall specify the amount of costs it would have fixed or state that it would have directed them to be taxed, or what proportion of the taxed costs it would have ordered to be paid, as the case requires; and

(b) the Supreme Court may, upon application made to it in that behalf, grant a cost certificate to the appellant and, if so, shall include it in the substance of the finding referred to in paragraph (a)."

45 The respondent contends that he falls within s 12A(2) in that he appealed against the decision of the Court of Petty Sessions on a point of law; was successful in the appeal; the Court would have ordinarily allowed the costs of the appeal; but the Court did not allow the costs of the appeal because of the provisions of s 219 of the Justices Act 1902 and s 4(2) of the OPDC Act. In my opinion, however, that is not the end of the matter.

46 Section 10 of the Suitors' Fund Act provides that:

"(1) Where an appeal against the decision of a court in any proceedings -

(a) to the Supreme Court;

...

on a question of law succeeds, the Supreme Court may, upon application made to the court in that behalf by any party to the proceedings, grant to the respondent to the appeal or to all or any of several respondents to the appeal, an indemnity certificate in respect of that appeal."

47 Section 11(1) of the Suitors' Fund Act provides that, where a respondent to an appeal has been granted such a certificate, the respondent is entitled to be paid from the money standing to the credit of the Suitors' Fund:

(i) of the appeal in respect of which the indemnity certificate was granted; and also

(ii) where that appeal is an appeal in a sequence of appeals, of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate of indemnity was granted,

ordered to be paid and actually paid by the respondent;

(b) an amount equal to the respondent's costs -

(i) of the appeal in respect of which the certificate was granted; and also

(ii) where that appeal is an appeal in a sequence of appeals, of any appeal or appeals in the sequence that preceded the appeal in respect of which the certificate was granted,

as taxed or agreed upon by the Board and the respondent or the respondent's solicitor and not ordered to be paid by any other party; and

(c) where the costs referred to in paragraph (b) are taxed at the instance of the respondent an amount equal to the costs incurred by the respondent in having the costs taxed."

48 The respondent was the appellant in the proceedings before the learned Judge. He was successful before his Honour. Consequently, s 11 of the Suitors' Fund Act has no direct application to what I will refer to as "the first appeal" to the learned Judge.

49 The question which then arises is whether another order may and should be made concerning the costs of the first appeal and this appeal. The appeal to this Court has succeeded on a question of law, namely, whether on the proper construction of s 4(2) and s 5 of the OPDC Act the respondent was a "successful defendant" or a "partly successful defendant". As a consequence, the case falls within s 10(1) of the Suitors' Fund Act. In my opinion, this is a proper and appropriate case in which the respondent should be granted an indemnity certificate. As a result of the grant of the certificate, the respondent will be entitled to be paid from the Suitors' Fund an amount equal to the appellant's costs of this appeal and also the costs of the appeal before the learned Judge "ordered to be paid and actually paid by the respondent".

50 The respondent's father told the Court that the respondent was not in a position to pay the appellant's costs. We were told that the respondent borrowed his father's car to go to work on 1 July 2000. He drove down an unfamiliar road, hit a pool of water on the road at a known "black spot" and made the mistake of braking with the result that the car skidded, there was a collision and an innocent party was injured, although allowed to go home from hospital on the same day after treatment.

51 Because these matters were not in evidence before the Magistrate or at the first appeal, they cannot be given any more weight than is given to submissions in mitigation of a penalty, for example. Insofar as they suggest that the respondent is not in a position to pay any costs awarded against him, that is a matter, absent any suggestion or contention to the contrary, which is of some relevance.

52 No order for costs was made in favour of the present appellant in the first appeal. In my opinion, given what we have been told of the respondent's circumstances, it would not be appropriate to make any order in favour of the appellant for the costs of the first appeal to the learned Judge.

53 However, the respondent's indemnity certificate will entitle him to be paid an amount equal to his costs of the appeal to this Court under s 11(b)(i) of the Suitors' Fund Act and of his costs of the first appeal under s 11(b)(ii).

54 It remains to consider the second paragraph in s 219 of the Justices Act to which I have already referred. The question is whether this appeal raises "a question of law of exceptional public importance". The question which was raised in this appeal is one of the proper construction of s 4(2) and s (5) of the OPDC Act and, in particular, whether a successful appellant in an appeal to a single Judge against sentence is a "successful defendant" or a "partly successful defendant" within the meaning of s 5(2) of the OPDC Act.

55 In my opinion, that question is a question of law of public importance because it has the potential to affect a very significant number of persons, who seek leave to appeal against sentences imposed in the Court of Petty Sessions. In R v Kelly [1999] 3 WLR 1100 at 1107 Bingham LCJ, Forbes and Harrison JJ, in a joint judgment, were called upon to consider s 2 of the Crimes (Sentences) Act which provided that the Court must impose a sentence of life imprisonment unless two conditions were met, namely, first, that the Court was of the opinion that there were exceptional circumstances relating to either the relevant offences or to the offender; and, secondly, that the Court was of the opinion that those exceptional circumstances justified the Court in not imposing a life sentence. In this context, the Court of Appeal said:

"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."

56 In my opinion, the question of law raised in the appeal heard by the learned Judge was of "exceptional" public importance because the point raised was out of the ordinary course, unusual, special or uncommon in the sense that it was not regularly, routinely or normally encountered.

57 For these reasons, I am of the opinion that the decision of the learned Judge as to costs not being confirmed, the respondent is entitled to an order under s 219 for costs, not against the appellant, but for an amount to be certified by a Registrar of this Court, including the amount of any costs ordered to be paid by the respondent to the appellant in the event that an application for costs is made by the appellant and is successful. Under s 219 the respondent is entitled to a certificate showing the amount of costs to which the respondent is entitled. On production of the certificate to the Treasurer, "the respondent shall be paid such amount which shall be paid to the Consolidated Fund".

58 WALLWORK J: I agree with the reasons for decision of Malcolm CJ. There is nothing I wish to add.

59 EINFELD AJ: I agree with the analysis and conclusions of the Chief Justice.