Plaintiff v Defendants

2 Mr Bloomfield challenges the learned judge's decision on two bases. He contends that her Honour's reasons for refusing him costs are inadequate, demonstrating an error of law apparent on the face of the record. Mr Bloomfield also submits that the record discloses that her Honour made an error of law by refusing costs on the sole ground of his failure to participate in a police record of interview before being charged.

3 The second defendant took no part in the proceeding, but agreed to abide by the decision of the Court in accordance with the principles in R v Australian Broadcasting, Ex parte Hardiman & Ors.[1] It asked to be heard in relation to costs.

4 In support of his application, Mr Bloomfield relies upon his affidavit sworn on 5 May 2006 ("Mr Bloomfield's affidavit").

5 The first defendant ("the informant") relies upon affidavits sworn on 20 October 2006 by :

(a) Adrian Mark Castle, the solicitor handling the case in the Office of Public Prosecutions; and

(b) Marwan El-Asmar, the Office of Public Prosecutions solicitor who had the conduct of the case in the County Court.

6 It is common ground that the record in question comprises the following :

(a) the charge, filed on 27 December 2004 in the Magistrates' Court at Heidelberg by the informant;

(b) the certified extract of Mr Bloomfield's conviction of the offence on 27 May 2005 in the Magistrates' Court at Heidelberg;

(c) the notification of an appeal to the County Court from the conviction, dated 21 June 2005, showing that Mr Bloomfield entered a plea of not guilty in the Magistrates' Court;

(d) the content of paragraph 17 of Mr Bloomfield's affidavit, which records that the parties were represented by counsel in the County Court;

(e) the account of events in paragraph 19 of Mr Bloomfield's affidavit which records that, after the evidence was given in the County Court, the learned judge :

... held that there were two accounts given of what occurred and that it was a case of oath against oath. She said that she could not prefer the complainant's account to the requisite high level of beyond a reasonable doubt. Her Honour allowed the appeal; set aside the sentencing order made by the Magistrates' Court at Heidelberg and dismissed the Charge.

(f) the learned judge's account of her reasons for refusing the application for costs in a letter, dated 30 May 2006, responding to an enquiry by the Office of Public Prosecutions as to the existence of a tape recording of the County Court proceedings . Her Honour replied that to the best of her knowledge there was no tape-recording of the hearing. She relevantly included the following paragraph in her letter :

I note that the application for costs by the successful appellant was refused on the basis that his No Comment Record of Interview enlivened my discretion to refuse that application ("the reasons").

(g) a notice of the County Court's decision allowing the appeal and ordering that the charge be dismissed and there be no order as to costs.

7 It is also common ground that the reasons could be considered in the context of surrounding circumstances disclosed by the record.[2]

8 Section 131 of the Magistrates' Court Act 1989 provides that the costs of all proceedings in the court are in the discretion of the court. Section 86(1)(b) of the same Act gives the County Court the power, on hearing the appeal, to make any order which the Magistrates' Court could have made.

9 It is common ground that the relevant legal principles relating to the award of costs to a successful defendant in a criminal proceeding are to be found in the decision of the High Court in Latoudis v Casey.[3]

10 In Latoudis, Toohey J recognised that it would "ordinarily be just and reasonable" to award costs to a successful defendant to a prosecution.[4] His Honour went on to say:

Now, in a particular case, there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them. ... if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, Reg. v. Dainer; Ex parte Milevich ((1988) 91 F.L.R. 33). This has nothing to do with the right to silence in criminal matters. A defendant or prospective defendant is entitled to refuse an explanation to the police. But if an explanation is refused, the successful defendant can hardly complain if the court refuses an award of costs, when an explanation might have avoided the prosecution. Again, if the manner in which the defence of a prosecution is conducted unreasonably prolongs the proceedings, for instance by unnecessary cross-examination, neither justice nor reasonableness demands that the successful defendant be indemnified, at any rate as to the entirety of the costs incurred. These illustrations are in no way exhaustive but what they point up is that a refusal of costs to a successful defendant would ordinarily be based on the conduct of the defendant in relation to the proceedings brought against him or her.

11 Mason CJ agreed with Toohey J that it might be just and reasonable to refuse costs if a defendant declined to take advantage of an opportunity to explain his or her version of events before a charge was laid.[5]

12 McHugh J held that a successful defendant in summary proceedings had a "reasonable expectation" of obtaining an order for costs "because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution."[6] His Honour went on to say:

Speaking generally, before a court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informant to establish that the defendant unreasonably induced the informant to think that a charge could be successfully brought against the defendant or that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of proceedings.[7]

13 In Hunter v Transport Accident Commission and Avalanche[8], Nettle JA said of the judicial obligation to give reasons:

... while it is not incumbent upon the judge to deal with every argument and issue that might arise in the course of a case (Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 A.L.R. 447 at 463 [62]), where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue (Sun Alliance Insurance Ltd v Massoud [1989] V.R. 8 at 18). Above all the judge should bear steadily in mind that reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. Failure to expose the path of reasoning is an error of law. (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-280 and 282 per McHugh J; Fletcher Constructions Australia Limited v Lines MacFarlane and Marshall Pty Ltd [2001] VSCA 167; (2001) 4 VR 28 at 35 [18], per Chernov, JA.)[9]

14 Reasons for a judicial decision may comprise no more than a very short statement indicating why it was made.[10]

15 Counsel for Mr Bloomfield argues that her Honour's reasons were cryptic and inadequate.

16 Counsel for Mr Bloomfield further contends that the judge erred in what he concedes may be taken to be her reference to the applicable principles relating to the exercise of her discretion. He argues that the reasons disclose that she took into account only her finding that the appellant made no comment during the police record of interview, thereby exercising his right to silence. This alone should not, in his submission, justify the exercise of the discretion against Mr Bloomfield.[11] He argues that the reasons do not disclose whether or not her Honour considered the effect of the appellant's failure to comment upon the informant's decision to bring the proceeding.

17 Referring to a number of authorities supporting the general proposition that the extent of reasons required by law depends upon the circumstances of the decision in question,[12] counsel for the informant responds that the reasons were adequate in the circumstances. He argues that it was clear from the reasons that her Honour found that the appellant had made a "no comment" record of interview and also that she had exercised her discretion as to costs on the basis of what he describes in written submissions as "the recognised exception to the general rule".

18 Counsel for the informant also argues that it is obvious from the learned judge's reasons for allowing the appeal that the complainant gave a version of events to police which would have given rise to the relevant serious charge, in the absence of any explanation from Mr Bloomfield. He argues that, because it was inevitable that Mr Bloomfield would have been charged on the basis of the complaint, if he had not given his own account of events to police, it was open to her Honour to conclude that he might have brought the prosecution upon himself by failing to comment when interviewed. He also submits that the Court should conclude that such a finding was implicit in her Honour's reasons. As a result, counsel maintains, the record discloses no error of law.

19 Counsel for Mr Bloomfield responds that it should not be inferred that the learned judge properly applied the relevant principles. He relies upon her Honour's failure to mention the reasons for her decision to allow the appeal, when giving the reasons in relation to the application for costs. He also refers to the fact that Mr Bloomfield was later convicted, after contesting the charge in the Magistrates' Court and, presumably, giving his account. He argues that, in those circumstances, it is not so obvious that Mr Bloomfield might not have faced a charge, if he had given his account beforehand, that the Court should infer that her Honour reached that conclusion.

21 It is unclear from the brief statement of the reasons how her Honour took into account her finding that Mr Bloomfield had made a no comment record of interview. It is necessary to speculate as to how she treated that fact.

22 Her Honour stated only that her discretion was enlivened by the fact of the no comment interview. I am not persuaded that the Court should infer from the statement of the reasons that she correctly applied the relevant principles set out in Latoudis.

23 Her Honour considered the exercise of her discretion in the context of an appeal which followed a plea of not guilty and a conviction in the Magistrates' Court. Whilst it might well have been open to her to conclude that Mr Bloomfield might not have been charged if he had given his account earlier, she has failed to state that she reached such a conclusion.

24 Counsel for Mr Bloomfield also challenges the decision on the basis that her Honour concluded that she should exercise her discretion against Mr Bloomfield simply because he exercised his right to silence. He correctly submits that, if she did so, she might have erred.[13] In my view, however, it is unclear from the reasons whether or not such an error was made. The reasons are inadequate in that regard.

25 As the Court of Appeal held in Kapiris Bros (Vic) Pty Ltd v Zsusa and Anor[14], justice must not only be done, but must also be seen to be done. Mr Bloomfield is entitled to know whether or not her Honour erred. I do not think the reasons make that clear.

26 The failure to give adequate reasons is an error of law.[15] The error is apparent from the face of the record. The Court must chose between granting the remedy of ordering the provision of adequate reasons and the quashing of the decision itself.

27 In this case, I am of the view that the decision should be quashed. The learned judge has retired and it is impracticable to order the provision of additional reasons. Mr Bloomfield's application should be remitted to the County Court for decision by another judge.

I certify that the 108 preceding pages are a true copy of the reasons for Judgment of Williams J of the Supreme Court of Victoria delivered on 3 August 2007.

[1] [1980] HCA 13; (1980) 144 CLR 13 at 55.

[2] Kerr v Colley [2002] VSC 209 at [17] per Bongiorno J.

[3] [1990] HCA 59; (1990) 170 CLR 534.

[4] [1990] HCA 59; (1990) 170 CLR 534 at 565.

[5] [1990] HCA 59; (1990) 170 CLR 534 at 544.

[6] [1990] HCA 59; (1990) 170 CLR 534 at 569.

[8] [2005] VSCA 1 at [31].

[9] See also : Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 at 83-84 per Gaudron, Gummow, Hayne and Callinan JJ.

[11] Larrain v Clark (unreported, 13 July 1995) at p7 per Smith J; Junek v Busuttil [2004] VSC 115 at [37] per Kellam J.

[12] Citing Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at [21] per Gaudron and Gummow, JJ; Selvanayagam v University of the West Indies [1983] 1 WLR 585 at 587, 588; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386 per Mahoney JA; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271 per Mahoney JA.

[13] See : Larrain v Clark (unreported, 13 July 1995) at p 7 per Smith J; Junek v Busuttil [2004] VSC 115 at [37] per Kellam J.

[14] [2006] VSCA 15 at [24] per Warren CJ, Ormiston JA and Harper AJA.

[15] See Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 388-9 per Callinan J.