The defendant shall have her costs of the entire proceedings as agreed or assessed.

CRIMINAL LAW - dismissal under s 334 Crimes Act 1900 (ACT) - application for costs pursuant to s 244 Magistrates Court Act 1930 (ACT)

Crimes Act 1900 (ACT) ss 116(3), 334, 334(2)(a), 334(2)(b)

Crimes (Sentencing) Act 2005 (ACT) s 17

Director of Public Prosecutions Act 1990 (ACT)

Legislation Act 2001 (ACT)

Magistrates Court Act 1930 (ACT) ss 85, 97, 244, 244(1)(d)(i)

Baker v Magistrates Court of the ACT & Yates [2013] ACTSC 73

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534

McEwen v Siely (1972) 21 FLR 131

ACT Legislative Assembly's Standing Committee on Legal Scrutiny Report into the Crimes Legislation Amendment Bill 2008

Explanatory Statement, Crimes Legislation Amendment Bill 2008 (ACT)

• 1․ The defendant was charged with contravening s 116(3) the Crimes Act 1900 (ACT) (Crimes Act), the allegation being that she damaged a glass electronic sliding door at the Adult Mental Health Unit of the Canberra Hospital on 14 October 2022. The matter came before me on 14 December 2023, having been listed for hearing.
• 2․ An application was made on behalf of the defendant for dismissal of the charge pursuant to the provisions of s 334 of the Crimes Act. Having heard the application, I dismissed the charge unconditionally pursuant to s 334(2)(b) of the Act.
• 3․ The defence made an application for the costs of the proceedings pursuant to s 244 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). The prosecution opposed the application, firstly on the grounds that s 244 did not apply to a dismissal pursuant to s 334 of the Crimes Act; secondly, on the grounds that even if it did, the court should not exercise its discretion in favour of an award of costs. I reserved my decision.

• 4․ However, in considering the matter, a further issue arose as to whether s 244 of the Magistrates Court Act in fact provides a general power to make an award of costs or rather a method of calculating costs awarded under other specific provisions of the Magistrates Court Act. This question arose having regard to the obiter dictum of the Full Court of the Supreme Court in Baker v Magistrates Court of the ACT & Yates [2013] ACTSC 73 (Baker).
• 5․ In that decision, Burns and Dowsett JJ observed at [7] (emphasis added):

As we understand it, there is no general statutory power, vested in the Magistrates Court, to award costs in criminal proceedings. However, ss 85, 97 and 244 of the Magistrates Court Act 1930 (ACT) confer such a power in certain circumstance. It may be arguable that whilst ss 85 and 97 confer power to award costs, s 244 provides for the calculation of such costs. However, this matter has been conducted on the basis that s 244 confers a power to award costs...

In our view, s 244 prescribes the way in which costs are to be assessed in criminal proceedings in the Magistrates Court, whatever the source of the power to award such costs..."

• 7․ The matter was adjourned further to allow submissions as to whether their Honours comments were to be read as an inference that s 244 operates not as a source of power to award costs but only as an avenue for calculation of them. I received written submissions from the defendant filed 12 March 2024 and from the prosecution filed 9 April 2024. Both agree that s 244 of the Magistrates Court Act does provide a source of power for the award of costs.
• 8․ I was particularly assisted by the comprehensive submissions as to this point made by Mr Berger KC. In short, I am readily persuaded that in so far as Baker may be read as questioning whether s 244 does provide a source of power to award costs as well as a method of calculation thereof (by reference to regulation), that inference is either an incorrect reading of what was intended by their Honours or, alternatively, obiter dictum which ought not be followed because it is inconsistent with authority and wrong.
• 9․ The alternative reading of their Honours observations in [7] that "it may be arguable that whilst ss 85 and 97 confer power to award costs, s 244 provides for the calculation of such costs" is that whether the power to award costs arises under ss 85, 97 or 244, the method of calculation under each of these provisions is that provided for in s 244. This reading is consistent with their Honours immediately preceding sentence that "ss 85, 97 and 244 of the Magistrates Court Act confer such power (ie to award costs in criminal proceedings) in certain circumstances".
• 10․ This interpretation is also consistent with the decision in McEwen v Siely (1972) 21 FLR 131 in which the Court (Fox, Blackburn and Connor JJ) concluded at page 135:

The fact remains that the legislature, well aware of the practice in indictable cases [that in the Supreme Court of the ACT the Crown neither asks for costs nor pays them] has made a positive legislative provision for costs in criminal matters in courts of petty sessions.

• 11․ This decision has not been overturned.
• 12․ Whilst s 244 was in somewhat different form at the time of the decision in McEwen v Siely, I am further satisfied that amendments to the section do not materially alter this position (see the legislative history adopted from the submissions of Mr Berger KC attached).
• 13․ The correctness of the decision is further supported by a consideration of extrinsic materials at the time of amendment of s 244 to its current form. The section was being revised to address a concern about the level and inconsistency of awards for costs being made to defence practitioners in criminal proceedings in this court.
• 14․ The ACT Legislative Assembly's Standing Committee on Legal Scrutiny Report into the Crimes Legislation Amendment Bill 2008 and the Explanatory Statement to the Bill are instructive.
• 15․ The Explanatory Statement makes clear that the section encompassed a power to award costs; the issue in amending it was addressing the question of calculation:

The Bill introduces a scale of costs in summary criminal cases to regulate the awards of costs made in the Magistrates Court. It is envisaged that a scale of costs will provide more certainty in awards, encourage defence practitioners to improve the management of costs and charges, and reduce the current, sometimes large, discrepancies in awards.

Is the provision in the proposed clause 244 of the Magistrates Court Act 1930 that the award of costs lies in the unconfined discretion of the magistrate an adequate principle for dealing with the question of costs in summary matters? Or should the Act frame the power of the magistrate on the principle that in ordinary circumstances, an order for costs should be made in favour of a successful defendant.

• 17․ Clearly, this consideration assumes that s 244 as it stood, and as to be amended, provided the power to award costs. The Standing Committee, in its considerations referred to McEwen v Siely and also Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534. The "unconfined discretion" was retained in the section as passed.
• 18․ I conclude that s 244 of the Magistrates Court Act provides a power to award costs in the circumstances delineated in subparagraphs (1)(a) - (c).

Does s 244 apply in relation to costs incurred by a defendant in proceedings in which the information is dismissed pursuant to s 334(2)(b) of the Crimes Act?

• 19․ Section 334 of the Magistrates Court Act provides, relevantly, and with emphasis added:

(1) This section applies where, in proceedings to which this division applies before the Magistrates Court, that court is satisfied that - > > (a) the accused is mentally impaired; and > > (b) on an outline of the facts to be alleged in the proceedings, or any other evidence the Magistrates Court considers relevant, it would be appropriate to deal with the person under this division. > > (2) If this section applies, the Magistrates Court may by order - > > (a) dismiss the charge and require the accused to submit to the jurisdiction of the ACAT to enable the ACAT to make a mental health order or forensic mental health order; or > > (b) dismiss the charge unconditionally. > > .... > > (7) An order under subsection (2) does not constitute a finding that an offence has or has not been committed.

• 20․ Section 244 of the Magistrates Court Act provides, relevantly, and with emphasis added:

(1) The power of the court to award costs is subject to the following: > > (a) if the court makes a conviction or order in favour of the informant - it may order that the defendant must pay to the informant the informant's costs; > > (b) if the court dismisses the information, or makes an order in favour of the defendant - it may order that the informant must pay to the defendant the defendant's costs;

• 21․ Ms Beckedahl on behalf of the defendant submitted that as the charge was "dismissed", the discretion to award costs provided for in s 244(1)(b) is enlivened on a plain reading of the text on the basis that the court "dismisses" the information. She further submits that the s 334 dismissal is "an order in favour of the defendant". Ms Beckedahl points to the fact that dismissal of an information may occur in a number of ways, such as after a fully contested hearing, following a finding of not guilty by reason of mental impairment and following dismissal where no evidence is offered by the prosecution. Ms Beckedahl further notes that the legislature could have excised dismissal pursuant to s 334 from the application of s 244 had that been its intent. She submits that, consistent with the High Court in Latoudis v Casey, the ordinary approach is to make an order for costs in favour of a defendant who has secured dismissal of criminal charges against them unless that is unjust or unreasonable, such as where the person has brought the prosecution upon themselves by their own conduct or the hearing was unreasonably conducted. Furthermore, in terms of how the discretion to award costs should be exercised in the circumstances of this case, Ms Beckedahl submits that it is clear that the defendant's mental health was a live consideration at the time of her arrest. The prosecution was on notice through representations and the provision of medical records that there was a mental health issue at play in relation to the alleged offending. The prosecution did not reduce the more serious offence which was originally charged contrary to s 403 of the Criminal Code 2002 (ACT) to the lesser offence pursuant to s 116(3) of the Crimes Act until the morning of the hearing. It was at this stage of proceedings that the prosecution indicated that it would not be heard against the making of a s 334 order with unconditional dismissal. The defendant was put to the expense of obtaining documentation to support the application and, it is submitted, is entitled to be recompensed.
• 22․ Mr Armstrong for the prosecution submitted that a literal approach was not the correct approach to be taken to interpretation of s 244 in this instance and that it would result in an absurd outcome. In relation to that part of s 244 which enlivens the discretion where "the court makes an order in favour of the defendant", he submitted that it could not have been the intent of Parliament that costs could be awarded in any instance where the decision of the court might be considered favourable to the defendant, for example it would be absurd to award costs on a bail application. As to that portion of s 244 which enlivens the court's discretion to award costs on dismissal of the information, it was submitted that the word dismissal, if read literally, again would result in absurd outcomes for example an award of costs would be open to the court following dismissal pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) in which an offence is found proved but otherwise dismissed. Mr Armstrong relied on that part of the decision in Latoudis v Casey which spoke of the approach to be taken "in ordinary circumstances". He invited the Court to find that "ordinary circumstances" are those which result in a defendant incurring costs in defence of the proceedings, that is in securing exculpation of the allegations. As s 334 of the Crimes Act does not address the question of guilt, and is effectively a diversion rather than an acquittal, the ordinary circumstances, or normal course, in respect to costs does not arise. Mr Armstrong also referred to the reference in Latoudis v Casey to the bringing of a criminal charge which "in the event should not have been brought". That approach, he submits, is not relevant in relation to a s 334 dismissal as there has been no determination of criminal culpability. Rather s 334 is concerned with what is appropriate in terms of how the individual should be dealt with from the point of the determination to dismiss on mental health grounds.
• 23․ Mr Armstrong in summary submits that a purposive interpretation should be applied to s 244; that the intent of the legislature is to compensate those who have been put to the expense of exculpating themselves in respect to charges which ought not have been brought in circumstances known to the prosecution at the time the charges were brought. Mr Armstrong pointed to the fact that costs provisions in very similar form to the current s 244 of the Magistrates Court Act significantly predated commencement of s 334 of the Crimes Act which was inserted into the Crimes Act in 1994 in something like its current form. The court could infer that the costs provision did not contemplate a mental health diversion outcome.
• 24․ As to application of any discretion the court may determine it has, Mr Armstrong submitted that in this particular case, only some of the information relied upon by the defendant for the application was available to the prosecution when the prosecution commenced.
• 25․ Mr Armstrong's alternative submission was that if the court were against him, costs should be limited to those associated with bringing the s 334 application only, not the proceedings as a whole.

• 26․ A s 334 dismissal neither requires, nor allows, a finding of guilt nor a conviction to be recorded; neither is it an acquittal of the criminal offence. The information has not been adjudicated. That said, where a charge has been dismissed pursuant to this provision, it is not open to the prosecution to bring the charge again, unlike the situation, for example, in which a charge has been withdrawn or discontinued. Thus, the consequence of a dismissal pursuant to s 334 is akin to an acquittal. That is particularly so where the dismissal is unconditional pursuant to s 334(2)(b).
• 27․ The discretion to dismiss pursuant to s 334 is one which must be exercised judicially; it is not an administrative decision. This sits in contrast to the committal function which is administrative (and as to which s 97 of the Magistrates Court Act was introduced to specifically provide a magistrate the discretion to award costs).
• 28․ In exercising the discretion to dismiss a charge pursuant to s 334 of the Crimes Act, the magistrate is required to have regard to evidence as to the defendant's mental impairment but also as to the criminal allegation and the defendant's criminal antecedents, if any.
• 29․ There is no doubt that the decision made pursuant to s 334(2)(b) of the Crimes Act in this case is a dismissal; that is the term used in the section. Unlike a dismissal pursuant to s 334(2)(a), there is no qualification on the fact of the dismissal - it is unconditional.
• 30․ The prosecution submits that it would lead to absurd outcomes if, following such a determination, a defendant should be recompensed for the legal costs incurred in establishing that it was appropriate that their matter be diverted from the criminal justice process in this way. Ultimately, I am not persuaded that this is so.
• 31․ "Dismissal" is not defined in the Magistrates Court Act 1930, Director of Public Prosecutions Act 1990 (ACT), Legislation Act 2001 (ACT), Court Procedure Act 2004 (ACT) or Crimes (Sentencing) Act 2005 (ACT). It is a term that applies to resolution of criminal matters in a number of ways. They do not all involve the same level of adjudication or determination of the facts, nor the same considerations. For example, in cases in which the prosecution offers no evidence, the court concludes that the charge(s) cannot be made out but the prosecution, having brought the charge, has determined for reasons which the court may or not be aware of, that the prosecution will no longer be pursued. The court inevitably dismisses the charge in such a circumstance without further adjudication. By contrast, where a charge is "dismissed" unconditionally pursuant to s 17 of the Crimes Sentencing Act, the court has considered the evidence and determined that it is "not appropriate to impose any punishment". In both cases there is a dismissal, albeit with differing consequences. However, there is no basis to infer that what has occurred is anything other than a dismissal.
• 32․ Any potential "absurdity" in treating a s 334(2)(b) dismissal differently to any other form of dismissal is addressed in s 244 itself by providing a broad discretion as to when costs are awarded following a dismissal.
• 33․ As I am satisfied that the dismissal in this case is a dismissal which falls within s 244, I am not required to consider whether it is otherwise "an order in favour of the defendant".
• 34․ Having concluded that s 244 is enlivened by the dismissal, I am now required to determine whether it is appropriate to exercise the discretion available to me to award costs.
• 35․ The prosecutor submits that a s 334 dismissal is beneficial to a defendant in circumstances in which they have not "succeeded" in the litigation and that it would not therefore be appropriate for such a defendant to "receive the benefit of a criminal justice diversion and be compensated for that benefit". This submission may be thought to be in accordance with the observations of Mason CJ in Latoudis v Casey:

In ordinary circumstances it would not be just or reasonable to deprive a defendant who has secured the dismissal of a criminal charge brought against him or her of an order for costs. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself...

• 36․ Clearly, a s 334 dismissal does not amount to an exculpation in respect to the criminal conduct alleged.
• 37․ Whilst falling short of an exculpation from criminal mens rea, such as a finding of not guilty by way of mental impairment, a s 334 dismissal does "exculpate" a defendant to the extent that a court has found that it is appropriate that the charge does not proceed in the usual way because of the person's mental impairment. How much more inequitable would it be that persons already suffering the significant impact of mental impairment should be precluded from recovering their costs of demonstrating that to the court, as a matter of course and without consideration of their individual circumstances? Whilst I am unaware of any authority for this proposition, I am satisfied that such an approach is antithetical to the rationale underpinning s 244 of the Magistrates Court Act and Latoudis v Casey. It follows that it is open to the court to award costs following a dismissal pursuant to s 334 of the Crimes Act.
• 38․ Turning to the circumstances of this case, whilst there is no criticism of the informant, nor the prosecution in bringing the case, the facts of it are such that it would have been apparent that the defendant's mental health was in issue from the outset. The alleged property damage occurred whilst she was being treated as a patient in a mental health facility. Those circumstances are not a "get out of jail free card" but they certainly raise from the outset a need for careful consideration, particularly by the prosecutor, as to how, in the public interest, such a matter might best progress. Here it was not until the day of the hearing that a sensible approach was, with respect, adopted by Mr Armstrong which resulted in the s 334 application being heard and determined favourably for the defendant.
• 39․ Having regard to the all the circumstances of this case, I now order that the defendant shall have her costs of the entire proceedings as agreed or assessed pursuant to s 244(1)(d)(i) of the Magistrates Court Act.

I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker.

Legislative History of s244 of the Magistrates Court Act 1930 (as amended)

Court of Petty Sessions Ordinance (No 2) 1930 No 21 (Cth)

(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions: -

1. Where the Court makes a conviction or order in favour of the informant, it may in its discretion award and order that the defendant shall pay to the informant such costs as it thinks just and reasonable:
2. Where the Court dismisses the information, or makes an order in favour of the defendant, it may in its discretion award and order that the informant shall pay to the defendant such costs as it thinks just and reasonable;
3. The sums so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal;
4. Any sum awarded or ordered to be paid by an informant or to a defendant for costs, may be raised and levied by distress under the provisions of this Ordinance;
5. Where any case is adjourned the Court may in its discretion order that the costs of and occasioned by the adjournment be paid by any party to any other party;
6. The costs of persons present to give evidence or produce documents, whether they have been examined or not, or have or have not produced documents shall, unless otherwise ordered by the Court, be allowed to them though they have not been summoned; but their allowance for attendance shall in no case exceed the highest rate of allowance prescribed; and
7. The amount of costs to be paid by one party to another whether for the attendance of those persons or otherwise shall in all cases be fixed by the Court.

Ordinance 1937-28 made the following minor amendments to s 244(1):

(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions: -

(a) ...

(b) The costs of persons present to give evidence or produce documents, whether they have been examined or not, or have or have not produced documents shall, unless otherwise ordered by the Court, be allowed to them though they have not been summoned; but their allowance for attendance shall in no case exceed the highest rate of allowance prescribed; and

(c) The amount of costs to be paid by one party to another whether for the attendance of those persons or otherwise shall in all cases be fixed by the Court and the costs in proceedings to obtain judgment on complaints shall follow the event; and

(d) Whenever a complaint over which the Court has no jurisdiction is brought before the Court, the Court may award costs to the like extent and recoverable in the like manner as if the Court had jurisdiction and then complaint had been dismissed.

Ordinance 1953-14 made the following minor amendments to s 244(2):

(2) The amount of the Court fees to be included in any costs awarded in pursuance of this section shall not exceed the amounts respectively specified in the Fifth and Sixth Schedules to this Ordinance or prescribed by rules or regulations under this Ordinance.

The Magistrates Court (Amendment) Act (No 3) 1986 made the following minor amendments to s 244(1) and (2):

(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions: -

(a) ...

(b) The costs of persons present to give evidence or produce documents, whether they have been examined or not, or have or have not produced documents shall, unless otherwise ordered by the Court, be allowed to them though they have not been summoned; but their allowance for attendance shall in no case exceed the highest rate of allowance prescribed; and and

(c) The amount of costs to be paid by one party to another whether for the attendance of those persons or otherwise shall in all cases be fixed by the Court. and the costs in proceedings to obtain judgment on complaints shall follow the event; and

(d) Whenever a complaint over which the Court has no jurisdiction is brought before the Court, the Court may award costs to the like extent and recoverable in the like manner as if the Court had jurisdiction and then complaint had been dismissed.

(2) The amount of the Court fees to be included in any costs awarded in pursuance of this section shall not exceed the amounts respectively specified in the Fifth and Sixth Schedules to this Ordinance or prescribed by rules or regulations under this Ordinance.

Magistrates Court (Enforcement of Judgments) Act 1994 amended s 244(1)(d):

(1) The power of the Court to award costs and the award of costs by the Court shall be subject to the following provisions: -

(d) Any sum awarded or ordered to be paid by an informant or to a defendant for costs, may be raised and levied by distress under the provisions of this Act recovered under Part XVIIIA of the Magistrates Court (Civil Jurisdiction) Act 1982

Court Procedures (Consequential Amendments) Act 2004

• The heading for s 244 was changed to 'Award of Costs in criminal matter'
• s 244(1)(d) was replaced with:

'an amount awarded or ordered to be paid by an informant, or to a defendant, for costs may be recovered under the rules about the enforcement of judgments of the court in civil proceedings

The costs of persons present to give evidence or produce documents, whether they have been examined or not, or have or have not produced documents shall, unless otherwise ordered by the Court, be allowed to them though they have not been summoned; but their allowance for attendance shall in no case exceed the highest rate of allowance prescribed subpoenaed.