REGINA v HUNT

COUNSEL : R J Bromwich (Appellant) M Grogan (Crown) SOLICITORS : Kell Moore (Appellant) S E O'Connor (Crown) CATCHWORDS : Criminal Law; costs; Justices Act s41A; no requirement of connection between reason for discharge and basis of cost order under s41A(2A). ACTS CITED : Criminal Appeal Act 1912 Justices Act 1902 DECISION : The answer to the first question is 'No'; The answer to the second question is 'His Honour Judge Freeman should decide himself whether costs should be awarded'.

SPIGELMAN CJ DUNFORD J HIDDEN J

Monday, 22 November 1999 REGINA v Geoffrey Herbert HUNT

JUDGMENT 1 SPIGELMAN CJ: This is a case stated by his Honour Judge Freeman of the District Court, pursuant to s5B of the Criminal Appeal Act 1912. His Honour had before him an appeal from the decision of a Magistrate to make an order for costs in favour of the successful defendant. 2 Section 41A of the Justices Act relevantly provides: "(1) The Justice or Justices:

(a) when making an order discharging a defendant as to the information then under inquiry, or

(b) when committing a defendant for trial for an indictable offence which is not identical in all respects to the indictable offence with which the defendant was charged,

may, in and by an order made by the Justice or Justices (which, in the circumstances referred to in paragraph (a), may be the same order as the order discharging the defendant) adjudge that the informant shall pay to the clerk of the court to be paid to the defendant (or, if the informant so elects, directly to the defendant) such costs as to the Justice or Justices seem just and reasonable.

(2) The amount so allowed for costs shall in all cases be specified in the order requiring payment.

(2A) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner,

(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award costs."

3 The summary of facts in the stated case is, relevantly, as follows: "1. On 10 April 1997 Geoffrey Herbert Hunt ("the appellant") appeared in committal proceedings before the Local Court at Tumut in relation to one count of indecent assault (s.61L Crimes Act 1990) and one count of sexual intercourse without consent (s.61I Crimes Act 1900). Mr O'Donaghue, Magistrate, committed him to the District Court for trial in respect of the count pursuant to s.61L of the Crimes Act 1900 and discharged him in relation to the count pursuant to s.61I of the Crimes Act 1900. The hearing lasted seven days. When discharging the appellant in relation to the latter charge, the Magistrate, pursuant to s.41A(1) of the Justices Act 1902 ("the Act") ordered the Director of Public Prosecutions ("the respondent") to pay costs in the sum of $50,000 (with one month to pay) to the appellant on the basis there were matters which were unreasonably not investigated.

2. On 1 May 1997, the Director of Public Prosecutions appealed to the District Court in its Criminal and Special Jurisdiction in respect of the Magistrate's order for costs. A copy of the notice of appeal to the District Court is annexed hereto and marked "A".

3. On 11 June 1997, that appeal came before me at the District Court at Wagga Wagga. The hearing of the appeal was limited by consent of the parties to the tender of that portion of the transcript containing the Magistrate's reasons for committing Mr Hunt on one charge and discharging him on the other and for awarding costs together with submissions thereon. Mr Lerve, Crown Prosecutor, instructed by an officer employed in the office of the Solicitor for Public Prosecutions, appeared on behalf of the Director of Public Prosecutions and Mr Foord instructed by Denniston & Day, Solicitors, Wagga Wagga, appeared on behalf of Mr Hunt. I heard submissions from the parties' counsel in relation to the appeal, pursuant to s.122 of the Act.

4. On 12 June 1997, I foreshadowed that I would uphold the appeal and I gave reasons. A copy of transcript of reasons is annexed hereto and marked "B". Following delivery of my reasons on 12 June 1997 and upon receipt of the transcript of those reasons, I was requested by Mr Day, solicitor appearing on behalf of Mr Hunt, on 17 June 1997 to state and sign a case for the opinion of this Honourable Court. Accordingly, I adjourned the further hearing of the said appeal so that questions of law arising in the course of it may be submitted for determination.

7. I noted that in the appeal before me it was argued by counsel on behalf of the Director of Public Prosecutions, and it appeared to be accepted by Mr Foord on behalf of Mr Hunt, that to ground a cost order on the basis of matters not reasonably investigated for the purpose of s.41(2A)(2)(c) there has to be some causal connection with the learned Magistrate's reasons for discharging the appellant. I held that there had to be such a connection.

8. As the hearing of this appeal was limited by consent to the tender of that portion of the transcript which contains the Magistrate's reasons for committing Mr Hunt on one charge and for discharging him on the other information and awarding costs, together with submissions therein, I was limited in my fact-finding capacity: Barendse v The Comptroller General of Customs, unreported CCA NSW 20 December 1996 and therefore in the circumstances I accepted the Magistrate's findings of fact.

9. The reason for the Magistrate's discharging the appellant in respect of the charge under s.61I of the Crimes Act 1900 related to his concerns about the absence of consent or at least the appellant's knowledge in that respect. The reason was not the failure to investigate the position in relation to the key to the laundry or the presence within the laundry of some bedclothes.

10. The Magistrate in awarding costs had purported to rely specifically on s.41A(2A)(c) of the Act, finding that the prosecution had unreasonably failed to investigate the position in relation to the key to the motel laundry and the presence of some bedclothes in that laundry where the offence pursuant to section 61I was alleged to have occurred."

4 The annexures referred to in para 2 and para 4 are not attached to this judgment. 5 The two questions of law which his Honour has stated for this Court are: "a) Is it necessary before the Magistrate makes an order for costs in favour of a successful defendant that not only the s.41A requirements or at least one of them be made out to the satisfaction of the Magistrate, but that such requirement or requirements be one or more of the reasons or substantially connected with the reasons for the discharge of the defendant under s.41 of the Justices Act?

b) In the event I conclude that the Magistrate ordered costs on an incorrect basis, should I consider for myself whether costs should be awarded or simply uphold the appeal?"

6 Freeman DCJ held, and the Crown has contended in this Court, that there must be a connection between the reasons for a defendant being discharged and the facts, matters or circumstances of which the Magistrate must be satisfied under s41A(2A) prior to making the order for costs. 7 The structure of s41A is:

(i) to identify a point of time by paragraphs (a) and (b) of subsection 1, namely either the time of making an order of discharge or of committing a defendant for trial on a different indictable offence;

(ii) to create a discretion to make an order that the informant pay costs;

(iii) subsection 2A confines the discretion by providing that costs are not to be awarded "unless" the Magistrate is "satisfied" as to any one of four sets of facts, matters and circumstances specified in subparas (a)-(d) of that subsection. 8 The order for payment of costs is a different step from that involved in the discharge or committal for an alternative indictable offence. This is emphasised in s41A(1) by the fact that the order for costs may be part of an order discharging the defendant, or may be separate. In the case of a committal on a different indictable offence, as there is no order, there would need to be a separate order. 9 Nothing in the terminology employed in, or the structure of, s41A requires any connection between the basis on which an order of discharge is made or a committal for a different indictable offence is determined and the facts, matters and circumstances about which the Magistrate must be satisfied before making an order for costs. 10 Indeed, the terminology of subs2A strongly indicates that no such connection was required. Each of the subparagraphs involves matters going well beyond the reasons for a discharge or the basis for a committal for a different indictable offence. So far beyond that range does the terminology of each subparagraph go that one would need to read the words down substantially on each occasion that the matter arises. Paragraph (a) focuses on an investigation being "conducted in an unreasonable or improper manner". Similarly, paragraph (b) is concerned with initiation of proceedings "without reasonable cause or in bad faith". Paragraph (c) refers to an unreasonable failure to investigate "properly" any relevant matter. Paragraph (c) also applies to a case in which the prosecution should not have been brought "for any other reason". Paragraph (d) extends to "exceptional circumstances relating to the conduct of the proceedings". 11 As I have said, the terminology of each paragraph is broad and extends well beyond the facts, matters and circumstances which is likely or indeed capable of leading to a discharge or to a committal on an alternative charge. It is sometimes appropriate to read down general words in order to implement an actual or presumed Parliamentary intention. However, the words of each paragraph of subs2A do not suggest that it is appropriate to do so in the manner for which the respondent contends. Each paragraph travels so far beyond the suggested limitation that it would be quite perverse to restrict the scope of the subsection in this way. 12 The Crown submitted that the object of s41A was to limit the discretionary bases on which a Magistrate could award costs. Notwithstanding the wide terms then used in some of the paragraphs of s41A(2A), it may readily be accepted that that was so. That, however, says nothing as to the alleged requirement that the facts, matters and circumstances falling within the terminology employed in that subsection can only be a proper basis for an order as to costs if those facts, matters and circumstances are the actual basis or bases upon which the Magistrate either discharges the defendant or commits him or her for a different indictable offence. Nothing in the scope and purpose of the legislation suggests the necessity for any such relationship. 13 The submission can be tested by considering a case in which the prosecution was likely to fail on any one of a number of unrelated points. If a discharge is made on the basis of one such point, the proceedings would not need to determine other points and, perhaps, would not even get to the stage of hearing evidence relating to those other points. In circumstances where one of these other points was such as would, in the opinion of those advising the defendant, lead to a dismissal, then they may very well advise him or her to ask the Magistrate to determine the proceedings on that basis. However, the other ground for dismissing the proceedings may be dealt with more expeditiously than the basis that may lead to a costs order. The construction contended for by the respondent could lead to the incurring of unnecessary costs in the Magistrate's Court. Where the legislature is creating a regime for the payment of costs unnecessarily incurred, it is hardly likely that it intended to create a consequence of that character. In my opinion the first question should be answered "No". 14 The second question did not give rise to any dispute in this Court. It was accepted by both the appellant and the respondent that the appeal before his Honour was a hearing de novo. His Honour should himself decide whether the costs should be so awarded. 15 Accordingly, the second question should be answered in that way. Namely, his Honour should himself decide whether the costs should be awarded. 16 By reason of the fact that the issue that has been agitated in this Court does not appear to have been the subject of submissions before his Honour, the Court is not minded to make an order for costs. 17 DUNFORD J: I agree with the judgment of the Chief Justice on the substantive issue and also on the question of cost. 18 HIDDEN J: I also agree. 19 SPIGELMAN CJ: The answers to the questions and the order is as I have indicated. **********

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