Travers v McDonagh ; Carey v La Rocca [2013] QDC 177

[3] When the matter came on for hearing the police prosecutor indicated to the defendants before Court that if they were not to ask for costs he would seek instructions in relation to the withdrawal of charges. That offer was rejected by the defendants. The defendants then gave a copy of a video and photographs to the police prosecutor. He went away and played the video. The video was of events in the unit where the offences were said to have taken place.

[4] After viewing the video the police prosecutor came back and told the legal representatives for the defendants that he would offer no evidence. That happened. The defendants then applied for costs basing their application on s 158A of the Justices Act 1886. The photographs are stills taken from the video and they are not very clear or helpful.

[5] The Magistrate refused the defendants' application for costs and they appealed. On 16 February 2011 I allowed their appeals and ordered each respondent to pay such costs as are just and reasonable. I also remitted to the Magistrates Court the defendants' application under s 158B(2) for costs in a higher amount.

[6] The hearing of these issues took place over four days before another Magistrate and it is his decision which is the subject of the present appeals.

[7] The acting Magistrate found that each appellant was entitled to the maximum under s 18 Justices Regulation 2004 of $1,500 (this was not opposed by the police prosecutor) but was not entitled, under s 158B(2) to a higher amount because he found that the case did not involve any special difficulty, complexity or importance. The higher amounts sought be each appellant before the acting Magistrate were: Carey $82,033.70 and Travers $83,069.80 (not including costs of assessment of $2,387.00). These costs are calculated on the indemnity basis but Mr Lee, who appeared for the appellants before me, conceded that if the appellants were successful these amounts would be reduced.

"Justices Act 1886

(1) When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.

(2) When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

158A Exercise of discretion in relation to an award of costs

(1) Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.

(2) In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example -

(a) whether the proceeding was brought and continued in good faith; and

(b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and

(c) whether the investigation into the offence was conducted in an appropriate way; and

(d) whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and

(e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and

(f) whether the defendant unreasonably declined an opportunity before a charge was laid -

(i) to explain the defendant's version of the events; or

(ii) to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and

(g) whether there was a failure to comply with a direction given under section 83A; and

(h) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and

(i) whether the defendant was acquitted on a charge, but convicted on another.

(1) In deciding the costs that are just and reasonable for this division, the justices may award costs only -

(a) for an item allowed for this division under a scale of costs prescribed under a regulation; and

(b) up to the amount allowed for the item under the scale.

(2) However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.

18 Scale of costs for Act, pt 6, div 8 and pt 9, div 1 - Act, ss 158B(1)(a) and 232A(1)(a)

The scale of costs for part 6, division 8 and part 9, division 1 of the Act is in schedule 2.

Schedule 2 provides a scale which sets out amounts up to which costs may be allowed:

1 Scale sets out amounts up to which costs may be allowed

(a) the only items for which costs may be allowed for part 6, division 8 and part 9, division 1 of the Act; and

(b) the amount up to which costs may be allowed for each item.

Part 2 of the Schedule provides for amounts up to which costs may be allowed for legal professional work:

Work for hearing of complaint up to and including day 1

1 Instructions and preparation for the hearing, including attendance on day 1 of the hearing. . . . . . . . . . . . . . . up to $1500.00

2 For each day of the hearing after day 1 . . . . . up to $875.00

3 Court attendance, other than on the hearing of the complaint

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . up to $250.00"

[9] The acting Magistrate heard evidence from the appellant Travers, Jonathan Payne who was present in the unit and had attached to him the device which made the video recording and the solicitors for each appellant. He also viewed the video.

[10] The appellants also relied on affidavits by their solicitors. No evidence was led by the respondents.

[11] The appellants sought a finding from the acting Magistrate that the video proved that the respondents had made false statements in their police statements and had acted unlawfully in arresting the appellants. Such a finding was, it was submitted, essential to their contention that the case against them was one of special difficulty, complexity or importance. Such a finding would have been relatively easy - there was no contradictory evidence from the respondents and the acting Magistrate needed only to be satisfied on the balance of probabilities. He refused to make such a finding, saying that even though the video version of events was different to that contained in both the QP9 and police witness statements, he could not, on a costs hearing, decide the matter because he had only heard one version of events. He seems to have taken the view that evidence from both sides was necessary and that the standard of proof in deciding the issue was proof beyond reasonable doubt.

[12] The video (which I have viewed) does not show everything but it is sufficient, when combined with the evidence of Travers and Payne, to allow one to conclude at least that the versions of each respondent in their statements are quite sanitised and inconsistent in important respects with the video. The video would have enabled the acting Magistrate to conclude that the statements were, in some respects, inconsistent with events shown in the video, if not false. As mentioned in para [11] the acting Magistrate was of the same opinion when he said the video gave a different version of events to that contained in the QP9 and police witness statements.

[13] In my view the acting Magistrate should have made the requested findings - they were supported by the evidence and justified a conclusion that, in arresting the appellants, the respondents were not acting lawfully and the appellants were entitled to obstruct them.

[14] For the purpose of the appeals I am prepared to proceed on the basis that the respondents were not acting lawfully when they arrested the appellants and had provided false police statements. Whether this makes the case one of special difficulty, complexity or importance is another matter.

[15] In relation to the work performed by the appellants' lawyers, the acting Magistrate found that they compared the video version of events with the police brief, they had numerous meetings with their clients and the relevance of the video was considered and analysed by counsel.

[16] The acting Magistrate found the matter was not of special difficulty or complexity because there was no trial, the evidence was never tested, it was a simple offence of obstructing police, no special difficulty or complexity was involved in preparing for trial, relatively low level factual issues only were involved, the case was extremely straightforward and there were only four police statements.

[17] In relation to special importance the appellants' case before the acting Magistrate was that unlawful police conduct warranted a higher costs order as a deterrent and that the failure to award higher costs would amount to curial sanctioning of such conduct and this would be contrary to public policy. An identical submission was made to me.

[18] In dealing with the special importance issue the acting Magistrate fell into error in three respects:

a. he failed to make a finding about the alleged unlawful police conduct which he should have

b. he found that public policy considerations and the authorities relied on by the applicants applied only to the exclusion of evidence unlawfully obtained whereas in fact the principles apply equally to unlawful conduct by police; and

c. he found that unlawful and improper conduct by police "bears little weight" on the issue.

[19] Whilst these errors are unfortunate they are not, in my view, sufficient in the circumstances to warrant a different conclusion on the ultimate issue. As I mentioned earlier, I am content to deal with appeal on the basis that the conduct of the respondents was unlawful and they had made false statements.

[20] Mr Lee submitted that reliance by the prosecution on demonstrably false material as a result of police lies is sufficient, that quite simple matters may be complex, ordinarily the defence is faced with meeting factual allegations fairly made on the evidence, positive false statements were made in sworn statements, such conduct would be rewarded or condoned or ignored absent higher costs, judgment calls were required to be made by the appellants' lawyers, their job was made harder by the insistence of the prosecution in relying on false evidence until the last moment, higher costs would discourage an environment which invites the perpetration or repetition of such conduct and send a message that consequences will follow upon the reliance of false evidence.

[21] Ms Kennedy submitted that the video simplified the task of challenging the evidence of the police, no novel defence issues or trial conduct were involved, the case involved no more than differing versions of events with one version supported by the video, whether or not statements were false did not make the defence task and the issues overly complex, there was no trial, costs are compensatory and are not meant to sanction police or send a message and other means than costs are available as a sanction.

[22] Mr Lee submitted that this means special difficulty, special complexity or special importance and I agree.

[23] The acting Magistrate referred to a number of authorities. In Interclean Industrial Services Ltd & Auckland Regional Council [2002] 3 NZLR 489, the Council sought higher costs after Interclean pleaded guilty to two criminal charges under the Resource Management Act 1991. Like the present case costs in excess of scale could only be awarded in cases of "special difficulty, complexity or importance". The High Court on appeal held that there was no special difficulty or complexity in the case, the defendant had pleaded guilty and the issues raised by both the prosecution and defence did not go significantly beyond those raised in prosecutions generally. Randerson J said at pages 496-7:

"[32] As observed by Tipping J in T v Collector of Customs (High Court, Christchurch, AP 167/94, 28 February 1995) at p2:

'The use of the word 'special' when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him.'

[34] In my view, each case must be considered on its own facts. I do not accept the appellant's submission that it is necessary for the prosecutor to demonstrate that the case is one of special difficulty, complexity or importance when compared with other prosecutions of the same type. The question is whether, having regard to the general run of criminal cases, the particular case is one of special difficulty, complexity or importance. Just as murder trials are not necessarily complex or difficult, summary cases are not always straightforward and may give rise to unusual complexity. Prosecutions under s 338 may often be of some difficulty or complexity but it will not always be so.

[37] I accept that the bringing of the prosecution was of some difficulty and complexity but it cannot be elevated to one of special difficulty, complexity or importance. The kinds of issues to be raised by the defence and the scope of the prosecution evidence could not be regarded as going significantly beyond matters commonly raised in prosecutions generally.

[38] As well, this was a case where the appellant pleaded guilty prior to trial."

[24] These seem to be, with respect, commonsense factors bearing on this issue.

[25] In Lucy v OCC Holdings Pty Ltd & Ors [2008] QDC 169 (applied in Morton v QPS & Anor [2009] QDC 233 at para [76]) Judge Robin QC considered a relevant factor could also be whether the case is a significant one, worthy of being pursued, because of the nature of the public interest involved and the scale of the alleged offending.

[26] In addition Ms Kennedy also suggested, depending on the circumstances, the nature and length of the hearing.

[27] Other cases I was referred to where the issue was considered are Durrant v Gardner [2002] QDC 198, Santosa v Guerin [2007] QDC 335, Sorenson v Animanto Pty Ltd [2008] QDC 219 and Hayes v Surfers Paradise Rock & Roll Café Pty Ltd [2009] QDC 214 at paras [30] - [32]. At the end of the day each case is different and each depends on its own facts and the issues involved.

[28] It is not proper exercise of the discretion to order a party to pay costs as punishment for the party's conduct or to deter the party from behaving similarly in the future. Costs are not to be used to send a message or to enforce public policy issues. The acting Magistrate put it correctly in his judgment has follows:

"[52] The purpose of awarding costs is compensatory and not punitive. Chesterman JA in Smith v Ash [2010] QCA 12 when determining whether costs should have been awarded in a Magistrates Court criminal matter, referred to Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 where McHugh J said:

'An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees... reasonably incurred in connection with the litigation.... The rationale of the order is that it is just and reasonable that the other party who has caused the other party to incur the cost of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory.'

[53] McHugh J also opined at 568 that there is no difficulty in applying this principle to criminal matters."

[29] In relation to the other aspects relied upon by the appellants I am not satisfied that the conclusion reached by the acting Magistrate was wrong. In fact I consider he reached the right conclusion. The matter was relatively straightforward, there was no trial and the video helped, not complicated, the defence. A factual contest in a criminal trial is not unusual or unexpected, nor is the possibility that a witness is telling lies. These matters are not so out of the ordinary that the case should be elevated to a higher plane. The false statements relied on here did not convert an ordinary case into one of special difficulty, complexity or importance. The defence job was not made harder by the insistence of the prosecution on proceeding in circumstances where the prosecution was not aware, until the last moment, of the video. Extra trouble or work for the defence does not by itself convert a relatively ordinary matter into one of special difficulty, complexity or importance. Having regard to the general run of criminal cases this one was not one of special difficulty, complexity or importance. No novel issues of special difficulty, complexity or importance were involved.

[30] Generally I agree with the submissions made by Ms Kennedy on this issue. Even if the fact of the false statements made the matter difficult and complex it did not, in my opinion, make it significantly or specially so.

[31] I do not think the particular issue here - false statements and unlawful conduct by police - meant that the case went beyond matters commonly occurring in prosecutions generally. No particularly important issue was involved and in the end no factual contest occurred.

[32] The acting Magistrate failed to include in the costs awarded to the appellants those costs involved in the costs hearing to which they were entitled. Each appellant is entitled to costs of court attendances on 21 March 2011, 13 May 2011, 30 September 2011, 10 November 2011 and 6 August 2012 (delivery of judgment) at $250 per attendance. Each is also entitled to hearing costs for 16 December 2011, 19 January 2012, 8 February 2012 and 9 February 2012 at $875 per day. Ms Kennedy did not oppose costs for at least the hearing days.

[33] Total costs for the attendances and hearing in the Magistrates Court of the costs application are therefore:-

[34] The appellants have succeeded to the extent of obtaining additional costs under the schedule. They would not have obtained these absent the appeals. They also succeeded in establishing the errors referred to in para [18] even though they failed in their contention that these should have led to a different result.

[35] On balance and even though most time was taken discussing the issues on which the appellants failed, they have, in my view, had sufficient success on the appeals to warrant an order for costs in their favour fixed at $1,800 each.

[36] Each appeal will be allowed to the extent only of adding to the order made in the Magistrates Court an order that the respondent in each case pay the applicant in each case $4,750.00.

[37] In each appeal I order that the respondent pay the appellant's costs of and incidental to the appeal fixed at $1,800.00.