[2025] ACTMC 16

The Defendant is to have his costs of the proceedings as agreed or assessed in accordance with Magistrate Court Regulation 2009 (ACT), Reg 4 and Court Procedure Rules 2006 (ACT), Schedule 4.

CRIMINAL LAW - COSTS APPLICATION - prosecution application to withdraw charges on date of hearing - whether defendant is entitled to his costs of the proceedings pursuant to s 244 of the Magistrates Court Act 1930 (ACT) - basis for an award of costs to the defendant - whether leave to withdraw charges is a court order in favour of the defendant

Crimes Act 1900 (ACT), ss 24, 26

Magistrates Court Act 1930 (ACT), ss 18A, 63, 244

Legislation Act 2001 (ACT)

Woods v Porter [2018] ACTSC 161

Latoudis v Casey [1990] HCA 59

Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149

Police v Rogers [2022] ACTMC 6

R v Kent (1970) 17 FLR 65

Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523

Police v Kaitlyn Jackson (a pseudonym) [2024] ACTMC 12

Concise Australian Legal Dictionary (4th edn, 2011)

1. At issue is whether the Court, in granting leave to the prosecution to withdraw charges against the defendant made an order in favour of the defendant for the purposes of awarding costs in s 244 of the Magistrates Court Act 1930 (ACT).
2. It was alleged by the prosecution that on Monday 7 October 2024 the Defendant, Mr Vine, assaulted his former partner, the complainant.
3. Mr Vine was produced before the Court in custody on 9 October 2024. He was charged on that date with two counts of aggravated common assault contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act) and one count of aggravated assault occasioning actual bodily harm contrary to s 24 of the Crimes Act. He was bailed on strict conditions.
4. On 29 October 2024, he entered a plea of not guilty to the three charges. The matter was listed for pre-hearing mention on 14 January 2025 (a bail variation hearing changing his residential address having been dealt with on 2 December 2024).
5. On 14 January 2025, Mr Vine appeared unrepresented. Two further counts of aggravated common assault had been laid. Mr Vine told the court that he had secured a private lawyer and was advised that the brief of evidence should be collected. The matter was adjourned for further pre-hearing mention.
6. On 11 February 2025, Mr Vine attended with a lawyer, and it was noted that the brief had in fact not been served. The matter was adjourned again to 25 February 2025. The hearing was listed for one day on 11 August 2025. It was noted at the time that there was one civilian witness, presumably the complainant, and four police witnesses.
7. The matter came before me in a callover to be allocated to a hearing Magistrate on the listed day, a Monday. Ms Knaggs appeared on behalf of the Director and Mr Whitfield of counsel for the Defendant.
8. The prosecution applied for an adjournment on the basis of the medical unavailability of the complainant. The application was opposed.
9. Information was provided to the Court from the bar table by consent.
10. The complainant had been subpoenaed to attend and had notified the prosecution on Friday before the hearing date that there was a medical reason that she could not comply with the subpoena. She was asked to provide evidence in support. None was forthcoming.
11. On the morning of the hearing, the complainant did not accept voice calls to her telephone, but received, and in part responded to, text messages. She indicated to police that she was at a hospital or medical facility, but, despite several requests, the name of that facility was not disclosed. Inquiries made by the police of all major hospitals in the Territory and adjoining Queanbeyan failed to locate the complainant. When pressed, the complainant advised police that she was at a medical facility in Deakin, but this could not be confirmed.
12. It was unclear as to whether the complainant was genuinely unwell or simply avoiding attendance. The prosecution did not apply for a witness warrant pursuant to s 63 Magistrates Court Act 1930 (ACT).
13. In the circumstances, the application to adjourn was refused.
14. The prosecution then sought leave to withdraw the proceedings. That application was also opposed.
15. Mr Whitfield submitted that there was prejudice to Mr Vine if his charges were withdrawn by the prosecution as opposed to the prosecution being required to proceed and offer no evidence in that:

(a) There was uncertainty as to whether the charges would be laid again in the future;

(b) There was uncertainty as to whether the complainant would in fact attend if the charges were laid again in future;

(c) There were costs implications for the Defendant.

1. However, leave was granted for the prosecution to withdraw the charges before the court on the basis that if it transpired that there was in fact a genuine medical reason for the complainant's non-attendance, the Director could consider re-laying the withdrawn charges.
2. Mr Vine then made application for his costs of the proceedings. This application was opposed by the prosecution.

1. The issue to be determined is whether in these circumstances, the Defendant in whose matter the prosecution has withdrawn the charges in, is entitled to his costs of the proceedings pursuant to s 244 of the Magistrates Court Act 1930 (ACT) (MC Act).
2. That section relevantly provides:

(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;

(c) if a matter is adjourned - the court may order that the costs of and caused by the adjournment be paid by any part to any other party;

(d) costs ordered to be paid-

• (i) must be awarded in the way prescribed by regulation; and
• (ii) may be recovered under the rules about the enforcement of judgments of the court in civil proceedings.

(2) Subject to any order of the court, the expenses of a person who attends at court to give evidence or to produce documents must be allowed to the person (whether or not they have been examined or produced documents and whether or not they were subpoenaed to attend).

1. Mr Whitfield submitted that costs are payable, in the court's discretion, pursuant to s 244 on two bases:

(a) Granting the prosecution leave to withdraw the charges effectively amounts to a dismissal;

(b) Alternatively, the withdrawal was a decision in the Defendant's favour.

1. In refusing the application for the adjournment, the prosecution was effectively "forced on", and not being in a position to prosecute the matter, the application for leave to withdraw amounted to a constructive dismissal. Alternatively, withdrawal of the charges was beneficial to the Defendant in that he was still "an innocent person". Further, the withdrawal of charges meant that he was no longer subject to limits on his freedom such as bail conditions.
2. Mr Whitfield nonetheless conceded that there is significant prejudice to a defendant against whom charges are withdrawn as the possibility of future prosecution hangs over them. That prejudice is exacerbated if they are unable to recoup legal fees properly incurred in defending a matter in which ultimately the prosecution was not in a position to proceed. This is particularly so if the withdrawal comes at a late stage of the proceedings when a defendant has been on bail, attended numerous times at court and, as this Defendant did, engaged proactively with the proceeding.
3. I was referred to the decisions in Woods v Porter [2018] ACTSC 161 at [28] (Woods) and Latoudis v Casey [1990] HCA 59 at [542] (Latoudis) in support of the principle that it is inequitable that a defendant who has to bear the financial burden of exculpation should not receive their costs.
4. Ms Knaggs for the Director submitted that withdrawal of charges does not equate to dismissal. As to the alternative basis for an award of costs pursuant to s 244, that is on the making of "an order in favour of the defendant", this is not enlivened when the charges are withdrawn. Where leave to withdraw is sought to preserve the prosecution position, the court has no role to play. A finding "in favour" requires a determination on the merits.
5. Ms Knaggs emphasised that Woods and Latoudis addressed the situation in which a defendant was exculpated of criminal liability, distinguishing them from the situation in which the prosecution has withdrawn the charges.
6. The matter was adjourned for determination. However, the court then invited further submissions on the question of what constitutes an "order" given the central role of that concept in s 244.

1. Ms Knaggs submitted in essence that the court's grant of leave to the prosecution to withdraw a charge does not constitute an order as it does not direct that something be done or not be done, and is not the result of an operative judicial act following a determination (see definition of that concept in the Court Procedure Rules 2006 (ACT) (CPRs), the definition of an order in the Concise Australian Legal Dictionary (4th edn, 2011) and consideration in Griffiths v Boral Resources (Qld) Pty Ltd [2006] FCAFC 149).
2. Mr Whitfield submitted that in granting the prosecution leave to withdraw the charges, the court heard submissions on fact and law and made a decision. This constitutes an exercise of judicial discretion resulting in a decision which is within the definition of an order in the Dictionary to the CPRs. This was supported by the propositions that the decision is binding on the parties and could not simply be undone by the Court; it could only be set aside by appeal or judicial review.

Is there any basis for an award of costs to the defendant?

1. A withdrawal of charges is different to a dismissal of an information in that it leaves open the possibility of charges or an information being re-laid at the discretion of the prosecutor (see Woods v Porter [2018] ACTSC 161 at [27]- [28]; Police v Rogers [2022] ACTMC 6).
2. The withdrawal of charges in the circumstances of this case does not amount to a constructive dismissal as there may be a proper basis for re-instituting proceedings, as detailed below.
3. There being no relevant dismissal for the purposes of s 244 of the MC Act, costs may only be payable to this Defendant if, in granting leave to the Director to withdraw charges against him, the Court has made an order, and that is an order "in his favour".

1. The dismissal of charges is a process quite distinguishable from withdrawal of charges. The first requires a determination by the court, either on evidence or in the absence of evidence, that it is appropriate for the court by its determination to bring the proceedings to a conclusion in favour of the defendant resulting in an acquittal. The process of withdrawal of charges is one entirely within prosecutorial discretion. However, whilst the decision to withdraw charges cannot occur but by the prosecutor's exercise of discretion, nonetheless that function remains subject to the general supervisory role of the court to prevent unfairness or abuse of process.
2. If charges are withdrawn, leave is not required to reinstitute proceedings, although in appropriate cases an application may be brought by a defendant to stay the proceedings as an abuse of process.
3. Whilst there is a general prosecutorial discretion as to the manner in which charges may be terminated before judicial adjudication, that may only be exercised without leave where doing so does not raise the spectre of an abuse of process or unfair trial. That issue is most likely to arise when the decision to withdraw is made at the hearing itself (see Woods at [27]).
4. The outcome, that is withdrawal of the charges, is subject to an application by the prosecution for leave. That grant of leave may or may not be objected to by the defendant. Depending on the timing and circumstances of the proposed withdrawal of charges, the court may be required to consider whether it is appropriate for leave to be granted, having regard, as necessary, to the Director's reasons (see R v Kent (1970) 17 FLR 65 at 70 per Fox J).
5. Whilst the decision may be made by a prosecutor to apply for leave to withdraw charges at any point in a criminal proceeding prior to conviction, the court must turn its mind to whether withdrawal of the charges amounts to an abuse of process or would result in an unfair trial.
6. Considerations include the Director's reasons. On occasions the court may refuse the application for leave to withdraw and press the prosecution on which may in practical terms result in the Director offering no evidence and the charge being dismissed again. This is a likely outcome when the application to withdraw the charges comes after the entry of pleas of not guilty and particularly after the commencement of a hearing.
7. Where leave is granted, the Court records that on the bench sheet after which the relevant charge(s) are marked withdrawn.
8. The prosecution here sought the leave of the court to withdraw the charges to which the defendant had pleaded not guilty and in which the hearing was about to commence.
9. I determined (correctly or otherwise) that it was appropriate to allow the prosecutor to exercise her discretion to withdraw the charges due to the uncertainty as to whether the prosecution could conceivably proceed at some future date. The Director's exercise of her discretion was made, in my assessment, on a proper basis.
10. The effect, whilst less desirable for the Defendant than dismissal of the charges, did not rise to the level of an abuse of process which warranted the interference of the court in the exercise of that discretion. This decision was arrived at after a consideration of the evidence and submissions.
11. The Court's determination to grant leave to the prosecution to withdraw charges is open to judicial review, as opposed to appeal (see Woods v Porter [2018] ACTSC 161 at [16] per McWilliam AsJ (as her Honour then was)).

1. "Order" is not defined in the Legislation Act 2001 (ACT), nor in the Magistrates Court Act 1930 (ACT).
2. However, the CPR definition of order provides, relevantly:

(a) for these rules generally - includes a judgment, decree, direction or decision, whether or not final; and

(b) for part 4.2 (Magistrates Court criminal proceedings) - see rule 4300; and

(c) of a court or tribunal, for part 5.3 (Appeals to Supreme Court) - see rule 5050; and

(d) for division 5.4.4 (Appeals to Court of Appeal - procedure generally), division 5.4.5 (Appeals to Court of Appeal - appeal papers and hearing) and division 5.4.6 (Appeals to Court of Appeal - ending all or part of appeal) - see rule 5400.

Definitions - pt 4.2

conviction includes a finding of guilt recorded by the court for a person.

defendant means a person against whom an information is laid.

1. Section 18A of the MC Act provides that for the purposes of Chapter 3 Criminal Proceedings, ""decision" includes "a committal for trial, admission to bail, and a conviction, order or other decision".
2. These provisions are somewhat circular but what is clear is that an order may include a decree or decision and a decision may be characterised as an order.
3. The Court's determination of an opposed application by the prosecutor for leave to withdraw charges self-evidently does not effect the withdrawal. Following consideration by the Court of the facts and submissions, having regard to the parties' interests in exercise of its implied power to regulate proceedings to ensure fairness to the parties, the court makes a decision. That decision formalises that there is no bar to the prosecutor exercising her discretion. The decision is formalised as part of the court record.
4. The decision affects the rights of the parties and is amenable to review. The fact that the decision is amenable to review favours it being characterised as an order (see Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523 per Dixon CJ, Kitto and Taylor JJ at 527-8; see also Griffiths v Boral Resources (Qld) Pty Limited [2006] FCAFC 149).
5. I conclude that the court's grant of leave to the prosecutor to withdraw charges is properly characterised as an order.

1. The law in respect to award of costs in criminal proceedings where a statutory discretion is enlivened, as in the ACT since the introduction of s 244 (and indeed its predecessor) to the MC Act, is reasonably settled by the leading case of Latoudis. In that case, the majority, consisting of Mason CJ and McHugh and Toohey JJ, in considering a relevantly similar provision in Victorian legislation, allowed an appeal against a decision which had upheld the initial decision of a Magistrate to refuse a defendant their costs in circumstances where they were acquitted of criminal charges.
2. Latoudis gives guidance to how the judicial discretion, granted by statute, to award costs in criminal proceedings ought to be exercised. The decision is predicated on circumstances in which "proceedings terminate in favour of the defendant" (per Mason CJ at [11]). The general proposition, detailed at [12] is that:

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, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs.

3. This decision is clearly concerned with circumstances in which there has been the dismissal of a criminal charge. As I noted in Police v Kaitlyn Jackson (a pseudonym) [2024] ACTMC 12 at [31]:

"Dismissal" ....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.

4. Whilst Latoudis was concerned with the effect of dismissal of charges, the rationale for an award of costs was a. that it was legislatively endorsed and b. that the termination of proceedings was "in favour of the defendant". Whilst on withdrawal of charges, a defendant has not achieved exculpation of the allegations against them, they have (in this case) incurred expense in defending themselves. Latoudis did not address this situation. It should not be read down such as to conclude that only a dismissal can amount to termination of a proceeding in favour of a defendant. Similarly, my observations in Police v Rogers [2022] ACTMC 6 at [45] should not be interpreted as necessarily supporting that conclusion.
5. Withdrawal of a charge, whilst less favourable than a dismissal, is in favour of a defendant. It is less favourable than a dismissal in the sense that there has been no positive determination of innocence; the person has not been vindicated by a court. Nonetheless a person who has not been convicted remains entitled to the presumption of innocence and is innocent for all intents and purposes.
6. The withdrawal outcome is also less favourable than dismissal in the sense that there is the possibility that charges may be reinstituted at some stage in the future; there is no finality to the proceeding. Nonetheless, the person's status is that of an innocent person and they are no longer subject to intervention of the state in their freedoms.
7. This outcome then must be characterised, on balance, as in the Defendant's favour.
8. This interpretation of s 244 is consistent with the fair compensation approach adopted in Latoudis. Whilst the Defendant has not had the benefit of an acquittal, compensating him for the cost of defending the charges to the point at which the prosecution has determined that it is appropriate to withdraw them, particularly where that point is the day listed for hearing, is fair.

1. Pursuant to s 244 of the Magistrates Court Act 1930 (ACT), the Defendant is to have his costs of the proceedings as agreed or assessed in accordance with Magistrate Court Regulation 2009 (ACT), Reg 4 and Court Procedure Rules 2006 (ACT), Schedule 4.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker.