Criminal Law - Judgment and punishment - Costs - Power to award - Committal proceedings - Summary proceedings conducted concurrently with committal proceedings - Prosecution evidence not justifying the laying of the charge. Costs in Criminal Cases Act 1976 (Tas), s4(1). R v Martin (1980) Tas R 280 (NC 12), distinguished.

Magistrates - Procedure - The hearing - Hearing of different charges against the same or different persons - Against the same person - Other cases - Summary hearing and committal proceedings taking place concurrently - Whether proceedings void - Whether irregularity may be waived. Justices Act 1959 (Tas), s72(1). McGrath v Higgins (1976) 13 SASR 365, considered. Glynn v Smith (1984) 70 FLR 427, distinguished.

ZEEMAN J The applicants seek to have reviewed orders made by a magistrate at Burnie whereby he dismissed applications made by each of them for orders pursuant to the Costs In Criminal Cases Act 1976 ("the Act"), s4(1), consequent upon his dismissal of certain complaints whereby the applicants were charged with various offences. I observe that the record of proceedings relating to complaint 26036/94 against the applicant Burr, to which I make further reference later in these reasons, does not record the making of an order of dismissal. However, the learned magistrate proceeded as if such an order had been made and I take it to have been made. Technically the notice to review is irregular because by one notice each of the applicants seeks to have reviewed the dismissal of his application (see Blazely v Pilkington (1977) Tas R 18, per Neasey J at 21) but the respondent takes no point as to that irregularity.

2. The notice to review contains the following grounds:

"1 The learned Magistrate erred in failing to hold that the

Police investigation was carried out in an unreasonable and

improper manner.

2 No Magistrate properly instructed in the law and acting

reasonably could have exercised his discretion to reject any

or all of the Appellants' Applications for costs.

3 The learned Magistrate erred in law in the exercise of his

discretion by failing to have sufficient regard to all the

relevant circumstances particularly the overall weakness of

the Prosecution case."

3. Ground 1 is relevant by reason of the Act, s4(2)(c) but it has no merit. There was no material before the learned magistrate upon the basis of which he could have concluded that police officers had carried out the investigation into the offences in an unreasonable or improper manner. The submissions in support of this ground confused the investigation into the offences with the decision to lay a complaint. Ground 2 was abandoned in the course of argument.

4. Before dealing with ground 3, it is necessary to deal with the submission made by the respondent that any error made by the learned magistrate as asserted by that ground is entirely irrelevant because the magistrate had no jurisdiction to make an order under the Act. The respondent has submitted that the magistrate lacked jurisdiction because the proceedings in which he made orders that the complaints be dismissed and those orders are nullities. In order to deal with that submission it is necessary to make reference to the history of the proceedings before the learned magistrate. On any view those proceedings were attended by a number of regrettable and substantial irregularities.

5. By complaint 26034/94 the applicants, together with a fifth person who is irrelevant for present purposes, were jointly charged with:

1 the burglary of hotel premises at Deloraine, contrary to

the Criminal Code ("the Code"), s244;

2 the stealing of certain property, namely a cash register,

money and a quantity of liquor from those premises, contrary

to the Code, s234; and

3 having been found by Constable Solty in possession of

certain liquor (being the same liquor as that described in

the charge of stealing) reasonably supposed by that officer

to have been stolen or unlawfully obtained without being able

to give a satisfactory account of his possession thereof to

the court before he was charged, contrary to the Police

Offences Act 1935, s39(1).

6. By complaint 26035/94 the applicant Neasey was charged with having been found by Constable Solty in the possession of a sum of money reasonably supposed by that officer to have been stolen or unlawfully obtained without being able to give a satisfactory account of his possession thereof before the court before which he was charged. By complaint 26036/94 the applicant Burr was charged with a similar offence in respect of a different sum of money. It was the prosecution case that all the property the subject of the charges under the Police Offences Act had been stolen during the course of the burglary of the hotel at Deloraine. In those circumstances it may be questioned whether it was appropriate to bring those charges at all (see Baldwin v Samuels (1973) 6 SASR 144).

7. On various dates each of the applicants pleaded not guilty to each of the charges against him. Some did so before the magistrate who made the orders the subject of the notice to review. Others did so before another magistrate. In each case the hearing was adjourned after the taking of the pleas. The charges brought pursuant to the Police Offences Act, s39(1) could only be tried summarily. The charges brought pursuant to the Code were triable upon indictment or, if so authorised by the Justices Act 1959, s72(1), summarily.

8. There is no suggestion that either of the magistrates who took the pleas of the applicants made any inquiry of any applicant whether he was willing to be tried summarily. The record of the Court of Petty Sessions does not disclose the asking of any such question. The learned magistrate does not appear to have considered that he was conducting a summary trial. He appears to have understood that each applicant had chosen the course permitted by the Justices Act, s56A(6)(a) (to require the taking of the depositions of witnesses and proposing to dispute that an order for committal be made) because his opening remarks in ruling that none of the applicants had a case to answer were that the applicants were "charged with burglary, stealing and unlawful possession, and have disputed committal." He made a similar observation in the course of expressing his reasons for dismissing the applications for costs. I inquired of counsel for the applicants (who had appeared for one of the applicants in the court below) whether he wished an opportunity to consider whether an affidavit should be filed as to the making of an inquiry pursuant to s72(1) by either of the magistrates. He declined to avail himself of that opportunity.

9. Section 72(1) does not impose upon a magistrate an obligation to ask a defendant charged with an offence to which that subsection applies whether he is willing to be tried by the magistrate instead of by jury (Brand v McDonald (1981) Tas R 105; Campbell v Maxwell [1986] TASSC 16; (1986) Tas R 45). If the question is not asked then the magistrate has no jurisdiction to hear and determine the complaint because the willingness of the defendant to be tried summarily is a condition precedent to jurisdiction (Omant v Reardon (1905) 1 Tas LR 97; Tatnell v Evans (1972) Tas SR 278 (NC 25); McKay v Tankard [1987] VicRp 32; (1987) VR 381). On the face of the record there is no indication that any inquiry was made of any applicant as authorised by s72(1). Such material as is available confirms that either such inquiries were not made or, if they were made, that the applicants objected to being dealt with summarily. Accordingly I conclude that notwithstanding the purported dismissal by the learned magistrate of the charges of burglary and stealing he did not conduct a summary hearing in relation to them.

10. It is appropriate to make some observations concerning the records of the proceedings maintained in the court below because they are inadequate and do not conform to the requirements of the law. A court of petty sessions is a court of record (Gerard v Hope (1965) Tas SR 15 at 20). It is essential that a sufficient record be kept so that reliance may be placed on it. Specific provision for a record of proceedings and its content has been made by the Justices Rules 1976, r63(1)(a) and (4). Rule 63(4) requires that the record of proceedings contain "a summary of the course and result of the proceedings on the complaint". Without affecting the generality of that requirement the subrule requires that the summary contains certain specific matters including "a detailed statement of the result, including convictions and orders" and that the justice imposing sentences and making orders of particular descriptions sign the record thereof.

11. The records of proceedings concerning the complaints against the applicants fail to comply with the requirements of r63(4) in the following respects:

1 There is no record of either of the magistrates who took

pleas from the applicants asking any applicant the question

required by the Justices Act, s56A. The learned magistrate

proceeded upon the basis that the question had been asked and

that each applicant had required that depositions be taken

and had indicated that he intended disputing that an order

for committal be made. The asking of the question and the

response to it was an integral part of the proceedings and

determined the nature of the jurisdiction which the

magistrate was required to exercise. They formed part of the

course of the proceedings and should have been recorded.

2 There is no record of the learned magistrate's rulings

that the applicants had no case to answer. That ruling

formed part of the course of the proceedings and should have

been recorded.

3 Although of no immediate relevance to the present appeal,

the record discloses that one of the applicants was remanded

in custody on several occasions. In no instance is the

relevant part of the record of the proceedings noting such

order signed by the magistrate who made it, despite the

specific requirement of r63(4) that that be done.

12. On 8 December 1994 the learned magistrate heard evidence from witnesses called for the prosecution in relation to all matters of complaint against all applicants. At the conclusion of the prosecution case, each applicant submitted that he had no case to answer. The learned magistrate upheld the submissions and then dismissed all complaints.

13. The observations made by the learned magistrate as to the applicants having disputed the making of committal orders to which I have referred suggest that he understood that he was taking the depositions of witnesses as to all matters of complaint but plainly that could not have been the case because of the requirement that the charges alleging breaches of the Police Offences Act, s39(1) be dealt with summarily. I assume that the learned magistrate was well aware of that. It is unlikely that he thought that he could commit the applicants for trial as to the alleged breaches of s39(1). I accept the submissions of both counsel that what the learned magistrate did was to conduct one hearing which, as to the alleged breaches of the Code, was the taking of the depositions of witnesses with a view to determining whether the applicants should be committed for trial and, as to the other charges, was a summary trial.

14. It is apparent that all applicants consented to the various complaints being heard together. Although there is no express provision in the Justices Act to this effect, it is permissible for two or more complaints against one defendant or against different defendants to be heard together where the defendant or defendants consent (Munday v Gill [1930] HCA 20; (1930) 44 CLR 38; R v Bennett; Ex parte Katelaris (1988) 79 ACTR 1) and perhaps, in some circumstances, even without such consent (R v Davidson (1985) 1 Qd R 332 at 339). It does not follow that the course adopted by the learned magistrate was lawful.

15. A preliminary inquiry by a magistrate with a view to deciding whether a person should be committed for trial for an indictable offence is not a judicial proceeding and a magistrate who conducts such an examination is performing a ministerial function (Ammann v Wegener [1972] HCA 58; (1972) 129 CLR 415 at 435-436; as to the history of committal proceedings indicative of their nature see R v Butwell [1994] TASSC 164; (1994) 3 Tas R 469). In the case of a person who has disputed that an order for committal be made, the function of a magistrate is to determine whether the evidence is sufficient to put that person on trial for an indictable offence, in which event the magistrate is required to order that person to be committed for trial. Referring to that function, Bray CJ said in McGrath v Higgins (1976) 13 SASR 365 at 370:

"It is, to my mind, out of the question that a magistrate can

properly exercise a function of this kind simultaneously with

the exercise of a truly judicial function in trying a

complaint for a summary offence."

16. With respect, I agree with that view. It is beyond question that the course adopted by the learned magistrate was highly irregular. The respondent has submitted that the effect of the irregularity of the procedure is that the proceedings are nullities so that there has been no summary hearing of the charges under the Police Offences Act and there have been no committal proceedings in relation to the charges under the Code. The applicants have submitted that although the procedure was irregular the irregularities were capable of being waived by the applicants and were waived by their acquiescence to the complaints being dealt with in the manner adopted by the learned magistrate.

17. I find it unnecessary to consider whether there were effective committal proceedings. I am able to confine my attention to the question of whether the proceedings in relation to the charges under the Police Offences Act and the orders of dismissal concerning those charges were nullities. It is unnecessary to consider the efficacy of the purported committal proceedings because even if they were perfectly valid the learned magistrate had no jurisdiction to dismiss the charges under the Code and had no jurisdiction to make any orders for costs under the Act in relation to those charges.

18. The learned magistrate had no jurisdiction to dismiss the charges under the Code because he was required to conduct a merely preliminary investigation. As to those charges, the submission by each applicant that he had no case to answer is to be taken as having been a submission that he should not be committed for trial because he had no case to answer (see Cox v Coleridge (1822) 1 B and C 37; [1822] EngR 19; 107 ER 15). The test as to whether a defendant should be committed for trial is that expressed by Hutley JA in Wentworth v Rogers (1984) 2 NSWLR 422 which was adopted by at least two of the members of the Full Court in R v Farrell A42/1995 as being the test applicable for the purposes of the Justices Act, s62(a). A determination by the learned magistrate that the applicants should not be committed for trial, which is implicit from his ruling that they had no case to answer, did not confer upon him any power to dismiss any matter of complaint. Indeed it was still open to the Crown to indict (R v McConnon (1955) Tas R 7).

19. A decision that the evidence is not sufficient to commit a defendant for trial for an indictable offence is not an order of adjudication determining issues between the parties and does not authorise the dismissal of the charge (R v Nichol (1979) 26 ACTR 19). I am not aware of it ever having been suggested that such a course is authorised. It follows that the orders of dismissal of the charges under the Code made by the learned magistrate are nullities.

"4 - (1) Subject to this Act, where a person having been

charged with an offence is discharged from the proceedings in

respect thereof, that is to say, where -

(a) he is acquitted of the offence;

(b) the complaint charging him with the offence is dismissed

or withdrawn; or

(c) he is discharged upon an indictment for the offence,

the court having the conduct of the proceedings may, upon the

application of the defendant, order that he be paid in

respect of his defence such costs as it thinks just and

reasonable."

21. It is clear that none of the three circumstances in which there is conferred a jurisdiction to order costs existed in relation to any applicant in respect of the indictable offences. There had been no acquittal or discharge upon an indictment. There had been no withdrawal of a complaint, if indeed that is possible, as to which there must be considerable doubt. The orders of dismissal made by the learned magistrate are nullities and therefore could not attract the jurisdiction conferred by s4(1). Such a decision does not come within any of the three paragraphs contained in s4(1). If any authority is needed for this proposition it may be found in R v Melbourne Magistrates Court; Ex parte Hiscock [1977] VicRp 63; (1977) VR 569 and R v Nichol; Ex parte Webster (supra). It should be noted that in each of those cases the relevant court was considering a statutory provision which not only conferred a power to order costs in favour of the defendant on dismissal of an information or complaint but also where a court had made an order in favour of the defendant. Nevertheless in each case the court concluded that there was no power to make an order for costs where a magistrate declined to commit, the references to an order being construed as a reference to a judicial order, which an order discharging a defendant consequent upon a determination not to commit is not.

22. Counsel for the applicants submitted that R v Martin (1980) Tas R 280 (NC 12) supported his submission that there is jurisdiction to make an order for costs pursuant to the Act where a magistrate declines to commit for trial. That case does not assist the applicants. It was a case where an accused person applied for costs after he had been acquitted by verdict of a jury. The jurisdiction to make an order arose by virtue of the Act, s4(1)(a). The question for determination was whether the costs incurred in relation to the committal proceedings concerning the crime charged by the indictment fell within the ambit of being costs "in respect of (the applicant's) defence" in the terms of s4(1). The affirmative answer provided to that question by Everett J is of no assistance to the applicants.

23. I turn to the question of whether the hearing of the charges under the Police Offences Act contemporaneously with the taking of depositions in relation to the charges under the Code was an irregularity which was capable of being waived by the applicants. If it was capable of being waived then the participation by the applicants in the hearing and their acquiescence in the procedure which was followed, at a time when each of them was represented by counsel, clearly amounted to a waiver.

24. In McGrath v Higgins (supra) a complaint was made by a police officer that a girl, who had not attained the age of eighteen years, was in need of care and control and that, during a period when she was under sixteen years of age, she had stolen money. On the same day that officer laid an information alleging that that girl, during a period when she had attained the age of sixteen years, had stolen money. The matters came before a magistrate in the Juvenile Court and he heard the complaint and the information together. The complaint was triable summarily. The information was triable on indictment but the court had a discretion to hear it summarily after explaining the relative implications of the matter being dealt with summarily and of a committal for trial and after giving to the child and her parents or guardian an opportunity of making representations. The magistrate failed to exercise his discretion, erroneously believing that a decision to have the information dealt with summarily had been reached on an earlier day.

25. Bray CJ concluded that the trial of the information miscarried and that no question of waiver could arise as to that because the defect went to the very jurisdiction of the Juvenile Court to hear and determine the information at all. His Honour then said, at 374:

"It might seem, however, that none of these objections apply

to the complaint and that any irregularity involved in

hearing that together with the abortive information

proceedings was capable of waiver and was waived. As at

present advised I do not think that that result follows. I

think the learned (magistrate) was not exercising strictly

judicial functions at all in his dealings with the

information: and I do not think he could combine judicial

functions in dealing with the complaint with executive

functions in relation to the information. In any event I

think the lesser should fall with the greater. If there is

to be a new trial, there should be a new trial of the whole

transaction. It would be unsatisfactory if, for example, the

appellant were committed for trial on the information and

acquitted by the jury and yet the finding of guilt stood with

regard to the earlier part of what was really all one

continuous transaction in the course of her employment with

Woolworths. But the matter has not been argued and I will

hear counsel upon it if desired.

These conclusions render it unnecessary for me to come to any

decision on the difficult question of how far it is possible

for an infant to waive procedural requirements or consent to

procedural irregularities in the course of a criminal trial."

26. I have some difficulty with the proposition that an irregularity in the conduct of a summary hearing such as occurred in the present case and in McGrath v Higgins, namely the combination with it of committal proceedings in relation to an indictable offence is not capable of being waived so as to leave the validity of the summary hearing unaffected. As a matter of principle, an irregularity which has the effect that the magistrate has no jurisdiction to deal with the matter with which he purports to deal is incapable of being waived (R v Children's Court; Ex parte Carroll [1957] VicRp 21; (1957) VR 161; Alderson v Palliser (1901) 2 KB 833; cf Rahcassi Shipping Co SA v Blue Star Line Ltd (1969) 1 QB 173 at 190 - 191) but a procedural irregularity committed in the course of exercising undoubted jurisdiction may be waived (Peiffer v Mossop; Ex parte Peiffer (1952) QSR 137; Daly v Barlow (1969) Qd R 237; Lubcke v Little [1970] VicRp 99; (1970) VR 807), although some of the cases suggest that a requirement which must be satisfied before there is jurisdiction may be waived (Moore v Gangee (1890) 25 QBD 244).

27. The learned magistrate possessed an undoubted jurisdiction to conduct a summary hearing of the charges under the Police Offences Act. He conducted such a hearing. The irregularity consisted of, at the same time as conducting that hearing, treating the evidence of the witnesses as the taking of depositions in relation to the charges under the Code. Whilst the procedure adopted by the learned magistrate was highly irregular, I do not consider that it went to jurisdiction to conduct the summary hearing. With respect I do not adopt the somewhat tentative views to the contrary expressed in McGrath v Higgins (supra).

28. The respondent also relied on Glynn v Smith (1984) 70 FLR 427 in which McGrath v Higgins (supra) was referred to with approval. In that case a magistrate had dealt with an indictable offence summarily by taking a plea of not guilty at the outset of the hearing and then proceeding with it. The relevant statute required that the evidence for the prosecution be taken and that at the conclusion thereof the magistrate take a plea and determine whether the defendant be committed for trial or that the matter be dealt with summarily. Clearly the magistrate had conducted a summary hearing at a time when he had no jurisdiction to do so, the time for determining whether the charge should be dealt with summarily not yet having arrived. Muirhead J held that the irregularity was incapable of being waived. Because the irregularity in that case went to jurisdiction it is clearly distinguishable from the present case.

29. It follows from what I have said that the orders made by the learned magistrate whereby he dismissed the charges under the Police Offences Act are valid orders and gave rise to the jurisdiction to make orders for costs under the Act. That conclusion leads to a just result because it would be entirely unjust for the applicants to be put in a position of being taken as never having been tried at all for the summary offences.

30. The reasons expressed by the learned magistrate for refusing each of the applications commenced with a review of various decisions of judges of the Court concerning the jurisdiction conferred by the Act, although notably without reference to the decision of the Full Court in Coleman v Harper A34/1993. His Worship then said:

"I turn to consider whether this Court has been positively

persuaded to exercise its discretion.

Firstly, I note that in respect of the evidence that was

submitted at the hearing that many inferences could have been

drawn which I was not prepared on the hearing to so draw due

to the very nature of the proceedings. However, I do not

consider, particularly in light of the comments made by Mr.

Justice Neasey (in Attorney-General (Tas) v Rigby A61/1978)

to which I have just referred, that I should have the same

self imposed restraints in respect of an application for

costs. These proceedings are an entirely different nature.

In this case, notwithstanding the submissions made by Counsel

for the applicants, this Court is not positively persuaded it

should exercise its discretion.

This conclusion has been reached after giving careful

consideration to the actual evidence presented at the hearing

of the Committal proceedings, and the submissions of Counsel

for the Applicants and the Prosecution. I accept the

submissions made by the Police prosecutor, in particular and

find them more persuasive in not exercise (sic) the

discretion.

I am assisted to some extent in reaching this conclusion by

the fact that there was no opposition by any of the

Applicants to an Order being made for the items recovered to

be returned to the Deloraine Hotel, being the place from

which it was alleged they were stolen and being the items

found in the possession of the Defendants. I also have

regard to the various comments made by some of the Defendants

during the time they were in custody of the police. These

matters are relevant and are those other matters to which a

Court should have regard in considering an application for

costs. I find the submissions made by prosecution more

convincing in satisfying this Court that it has not been

positively persuaded to exercise its discretion.

Accordingly I refuse the Order for costs and dismiss each of

the Applications."

31. I do not understand the learned magistrate's reference to inferences which could have been drawn but which he had not been prepared to draw in the substantive proceedings. Each of the applicants had successfully submitted that he had no case to answer. In considering those submissions the learned magistrate was not called upon to draw inferences. He was required to determine what facts could be found and what inferences could be drawn from such facts and then to determine whether, if those facts were found and those inferences drawn, a finding of guilt could follow. His ruling that there was no case to answer is to be taken as a ruling that upon the facts which were open no inferences leading to a conclusion of guilt could be drawn. The learned magistrate's observations in the course of dealing with the applications for costs as to inferences which he could draw suggest that he was prepared to draw inferences of guilt.

32. In my view the learned magistrate's reliance on Attorney-General (Tas) v Rigby (supra) was entirely misconceived. In that case the Attorney-General sought to have reviewed an order of a magistrate that the respondent be paid costs pursuant to the Act consequent upon the dismissal of a complaint after the magistrate had declined to accept evidence given by prosecution witnesses. Essentially the magistrate had determined that an order should be made because in his judgment the police had failed to evaluate properly the evidence which they had gathered. As to that, Neasey J said, at 20 - 21:

"But a more important matter of principle, in my opinion, is

whether the learned Magistrate was justified in expecting the

police, as he apparently did, to have 'evaluated' the

evidence before trial, and to have come to the same or

substantially the same conclusions about the credibility of

the witnesses and the rights and wrongs of the matter as he

was able to do after seeing and hearing them in the witness

box, being examined and cross-examined, during a hearing

which evidently lasted upwards of two days. I think this was

quite clearly wrong in principle.

... The evidence before them (ie the police) was amply

sufficient to justify conviction if it was believed, and part

of it was objective evidence and part was from an independent

witness. It was not for them to form a conclusion that this

evidence would be rejected and the opposing evidence

accepted, though that of course was a possibility. But the

issue of credibility was for the Court to decide."

33. The learned magistrate referred to the last two sentences of that passage as though they were relevant to the applications before him. They were entirely irrelevant. The learned magistrate had not rejected any of the prosecution evidence. There had been no occasion for him to do so. His task was to consider whether that evidence, if accepted, could lead to a finding of guilt.

34. With respect to the learned magistrate his expressed reasons for declining to make any order for costs largely amount to vague generalities and are quite inadequate. One cannot help but get the feeling that the learned magistrate thought, despite his ruling, that the applicants really were guilty of the offences charged and therefore should not have the benefit of orders for costs. His reference to their non-opposition to the making of orders that the relevant property be returned to the proprietor of the hotel seems to have been on the basis that it was some admission of guilt. That reference was inappropriate and in any event appears to have assumed, quite erroneously, that because all applicants consented to the making of such an order all of them were making some admission of participating in the unlawful taking or possession of the property. Incidentally, there having been no application under the Justices Act, s138 or s140A, the learned magistrate seems to have had no jurisdiction to make the order as to the disposition of the property (see Coghill v Warrell [1890] VicLawRp 51; (1890) 16 VLR 238).

35. The applicants submitted that the learned magistrate failed to have regard to the fact that the complaints had been dismissed because on the prosecution case as it was presented, without reliance on any concessions made during cross-examination, the applicants had no case to answer. In other words, the respondent presented a case which was doomed to failure because even if the whole of its evidence was accepted at face value, it was incapable of making out the offences charged. It was incumbent upon the learned magistrate to carefully examine all the relevant circumstances. He was required so to do by s4(2). In so far as the charges under the Police Offences Act were concerned the evidence adduced for the prosecution was lamentably inadequate. There was absolutely no evidence that the named police officer had ever found any of the applicants in possession of any of the money or other property the subject of the various complaints. There was no evidence of his state of mind concerning the status of any of that property at any relevant time. There was no endeavour by the police prosecutor to elicit from that officer evidence as to any belief he might have had concerning the status of the relevant property. I infer from omission that there was no suggestion that the officer did not come up to proof but that it was a case where material in the possession of the prosecution was entirely incapable of making out the offences charged. That was a most material circumstance but the learned magistrate did not mention it and is to be taken as not having taken it into account. Ground 3 is made out.

36. Both counsel submitted that in the event that I were to conclude that the learned magistrate's discretion had miscarried then I should exercise my own discretion. I accept that it is appropriate that I do so.

37. I do not consider that any of the specific matters referred to in pars(a) to (e) of s4(2) are relevant to the present case. The most important circumstance is that the prosecution did not present a case which, if accepted, was capable of a conclusion that any of the applicants had committed the offence or offences charged against him.

38. The essence of the offence created by the Police Offences Act, s39(1) is that the defendant is found in possession of property reasonably supposed to have been stolen or unlawfully obtained. The two ingredients, namely the finding and the supposition require further examination in the context of this case.

39. There was evidence that a motor vehicle driven by the applicant Weekes, in which the other applicants were passengers, was intercepted and stopped by Constable Solty. He spoke to the driver and administered a breath test to him. He noticed a carton of beer, not the subject of any charge, on the floor of the vehicle. Other officers arrived. Constable Solty went and sat in his vehicle. Two other officers carried out a search of the applicants' vehicle and found the liquor the subject of the charges. Subsequently one of those officers brought that liquor to Constable Solty. The applicants were taken to a police station where they were asked to empty their pockets. The applicants Neasey and Burr were found to have quantities of coins in their pockets and these were the subject of the separate complaints against them. Constable Solty was not present when the applicants emptied their pockets.

40. What is required by s39(1) is a finding or discovery of a person then in possession of an article then reasonably supposed to have been stolen or unlawfully obtained, although the finding may continue or re-occur whilst the possession continues (Burnett v Brown (1929) 24 Tas LR 23 at 25; Purcell v Marshall (1931) 26 Tas LR 102 at 110; Mackey v Gangell (1952) Tas SR 31 at 34 - 35; Balmer v Southern (1956) Tas SR 6 at 11 - 14). Clearly the evidence of Constable Solty was incapable of establishing a finding by him in the circumstances referred to in s39(1). When he found the applicants he knew nothing of any possession by them of any of the relevant property so he could not then have had the required state of mind. When he first became aware of the property it had been removed from the possession of the applicants (if indeed it had been in the possession of any one or more of them) and was in the possession of other police officers. At that stage there could not be any finding in the statutory sense. Lowe v Price A2/1982, relied upon by the respondent, does not assist. That case was concerned with the concept of possession but it cannot be doubted that once police officers had taken physical possession of the property it could no longer be said that any applicant was then in possession of it.

41. In addition the prosecution case suffered from the defect that Constable Solty gave no evidence as to any belief which he had concerning the property. Whilst there was evidence from which his state of mind might have been inferred that was not enough. Actual evidence from him as to his belief was required. Authority for the proposition that this was required may be found in the judgment of Napier CJ in Dent v Hann (1949) Argus LR 271. In a passage referred to with approval in Weston v Smith (1963) Tas SR 27 at 39, his Honour said, at 272:

"There was, I think, ample ground for assuming that the

respondent had in fact suspected that the money had been

stolen, and if I were to read between the lines I think that

it is highly probable that, prior to entertaining that

suspicion, the respondent had been informed of the facts

sworn to by other witnesses. But I think that, for the

purpose of a prosecution under this section, nothing should

be left to the imagination. The facts which bring the

section into play and call upon the defendant for his

explanation should be clearly disclosed to the Court, so that

the Court can say whether the suspicion was one which it was

reasonable to entertain in the circumstances."

42. There was no justification for laying the charges under s39(1). In my view the absence of such a justification makes it appropriate that the applicants have their costs. None of the other circumstances of the case lead me to conclude that the contrary course is appropriate. Counsel for the respondent submitted that I should not make an order because the proceedings had taken place concurrently with the committal proceedings, as to which there was no jurisdiction to make an order for costs and that no additional costs had been incurred. I do not accept that submission. Whatever else was encompassed by the hearing it amounted to the summary determination of the charges against the applicants. Merely because it was also made the vehicle for the exercise of a different jurisdiction is no reason to deprive the applicants of costs which otherwise they should have.

43. I propose making an order that each applicant have the whole of the costs of his defence. However, it must be understood that such an order will not necessarily extend to all the costs of the proceedings before the learned magistrate. Those costs are limited to those incurred which were relevant to the proceedings under the Police Offences Act. Any costs incurred which were not relevant to those proceedings do not fall within the ambit of my orders.

44. In accordance with these reasons I make the following orders:

1 That the appeals be allowed.

2 That the orders of the learned magistrate refusing the

applications for costs pursuant to the Costs in Criminal

Cases Act 1976 made by the applicants be set aside.

3 That in lieu thereof the following orders be made:

(a) that the applicant Stuart Andrew Neasey be paid in

respect of his defence of complaint 26035/94 and count 3 of

complaint 26034/94 the whole of his costs;

(b) that the applicant Robert Anthony Weekes be paid in

respect of his defence of count 3 on complaint 26034/94 the

whole of his costs;

(c) that the applicant Raymond Paul Burr be paid in respect

of his defence of complaint 26036/94 and count 3 of

complaint 26034/94 the whole of his costs;

(d) that the applicant Steven John Douglas be paid in

respect of his defence of count 3 on complaint 26034/94 the

whole of his costs;

(e) that in each case the costs be taxed by the Registrar of

the Supreme Court on the scale of costs fixed by the Legal

Aid Commission of Tasmania in respect of proceedings in

courts of petty sessions applicable at the time that the

costs were incurred; and

(f) that the applications for costs by the applicants in

respect of counts 1 and 2 on complaint 26034/94 be dismissed.