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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Maher v Commissioner of Police  QDC 45
COMMISSIONER OF POLICE
27 March 2020
5 March 2020
Kent QC, DCJ
CRIMINAL LAW – PROCEDURE – COSTS – POWER TO AWARD – whether it is proper that an order for costs should be made – where the appellant was charged with assault occasioning bodily harm – where the appellant was positively co-operative with police – where the prosecution failed to obtain a statement from a key witness until after the trial was first listed to proceed – where there was an unexplained delay of 28 months before charging the appellant with the offence – where the appellant was acquitted at first instance.
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – whether the learned Magistrate erred in his discretion not to award costs – where an application for costs made by the appellant pursuant to ss 158 and 158A of the Justices Act 1886 was refused at first instance – where the appellate court has the discretion to decide the matter of costs anew – whether the learned Magistrate erred in not awarding costs in a higher amount because of the special importance under s 158B of the Justices Act 1886 – where the appellant was a practising solicitor who had mandatory reporting obligations.
M Jackson for the appellant
M Nicolson for the respondent
Nyst Legal for the appellant
Queensland Police Service for the respondent
- It was a winter night four years ago at the Gold Coast when alcohol consumption at a housewarming party sparked events leading to conflict, injury and drawn-out and delayed litigation.
- The appellant was involved in an altercation at a party on the evening of 2 July 2016, with a Mr Pozzan. Mr Pozzan sustained injuries when the appellant punched him in the nose during the disagreement. The appellant was charged with assault occasioning bodily harm. The trial commenced in the Magistrates court at Southport on 29 March 2019 and was subsequently adjourned to 21 May 2019. At the conclusion of the trial, the charge was dismissed by the Magistrate as the prosecution had failed to negative self-defence. An application for costs was made by the appellant pursuant to ss 158 and 158A of the Justices Act 1886, which was rejected. This appeal concerns that decision to refuse a costs order.
- The present grounds of appeal include:
- (a)the learned Magistrate did not take into account material considerations under s 158A(2)(b) of the Justices Act, namely the failure to investigate and take a statement from a witness, Andrew Kyle; a failure to further investigate the fact that the complainant’s statements did not account for how the physical contact was initiated; and the unexplained delay of approximately 16 months before charging the appellant with the offence (in truth this delay seems to have been 28 months);
- (b)the learned Magistrate erred in finding that the investigation was conducted in an appropriate way under s 158B(2)(c) of the Justices Act;
- (c)the learned Magistrate erred in finding that ss 158(2)(d) and (e) of the Justices Act were irrelevant;
- (d)the learned Magistrate did not take into account material considerations under s 158A(2)(f) namely that on the night of the incident the appellant had told investigating police that he assaulted the complainant in the manner alleged; that he subsequently supplied police with a signed statement confirming this; and he invited investigating police to make further enquiries of him if necessary, which police did not do;
- (e)the Magistrate did not take into account a material consideration under s 158A(2)(h) namely that the appellant had the charge listed for summary trial at the earliest available opportunity; and at the trial of the charges the appellant formally admitted that he punched the complainant on the nose thereby causing him bodily harm;
- (f)the Magistrate erred in his discretion in not finding that it was “proper” for an award of costs to be made; and
- (g)the learned Magistrate erred in his discretion in not awarding costs in a higher amount because of the “special importance” of the case under s 158B of the Justices Act.
- The occasion was a house-warming party. The complainant is the brother-in-law of the host of the party, Mr Kyle. The appellant, a solicitor, is a former work colleague and friend of Mr Kyle.
- During the afternoon the appellant and the complainant had been drinking. Some unpleasant words were exchanged. Later that evening there was an incident outside the house, where the appellant punched the complainant.
- On the night, the appellant told attending police he punched the complainant, in self-defence, having been attacked. On 16 November 2016, the appellant through his solicitors gave police a statement including a frank admission he had punched the complainant. He was not charged until 29 November 2018, by way of a notice to appear.
- On 11 February 2019, the appellant’s solicitors requested a statement be taken from Mr Kyle. When the matter came on for hearing on 18 February, the prosecution sought an adjournment to obtain that statement. A direction was made for the prosecution to do so within 14 days. That adjournment was compensated by a costs order in the appellant’s favour for $1,500 (this is significant, in the respondent’s submission, and erodes the appellant’s position on this appeal).
- The trial proceeded on 29 March 2019 and was adjourned to 21 May. The appellant’s version was that the complainant was advancing, throwing punches at him and he threw one right-hand punch. Thus the issue at the trial was the unlawfulness of the assault, that is, whether it was in self-defence or, more precisely, whether the prosecution had excluded self-defence beyond reasonable doubt.
- In reviewing the evidence, the trial Magistrate found that the complainant was the aggressor. He pushed through the gate at the front of the property – towards where the appellant was standing outside - in an angry and aggressive manner, as described by Mr Kyle. The complainant’s evidence was inconsistent in a number of aspects, both in evidence in court and in previous written statements, and the Magistrate had a doubt about his reliability as to what had occurred. Conversely the Magistrate found that the appellant was at all times consistent. The Magistrate found the evidence of Mr Kyle to be of some force.
- Of particular importance was the fact that Mr Kyle, whom the Magistrate found to be a compelling witness, had made contemporaneous notes of what had occurred. The Magistrate does not seem to have concluded that Mr Kyle was intoxicated to any significant degree, although both the complainant and the appellant were.
The Appellant’s Submissions
- The appellant points out that there is a jurisdiction to entertain an appeal against the refusal of the costs order in these circumstances. I do not understand this to be contentious. He further submits that the relevant jurisdiction is a discretionary one with reference to the well-known principles from House v The King although, of course, the statutory discretion is somewhat confined by the relevant provisions of the Justices Act.
- Thus the appellant submits that the Magistrate’s errors included failure to take into account material considerations, namely the failure to investigate and take a statement from Kyle; the failure to further investigate the fact that the complainant’s statements did not account for how the physical contact was initiated; and the unexplained delay of approximately 16 months (in truth 28 months) before charging the appellant with the offence. The appellant also submits that the Magistrate erred in his conclusion that the investigation was conducted in an appropriate way.
- It is also submitted that the Magistrate erred in not applying s 158A(2)(d) of the Act. This provides that a relevant circumstance in deciding whether a costs order is proper includes whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict the defendant. The appellant argues that his Honour was incorrect in concluding that subsection (d) did not assist the appellant. That is, on the findings, the dismissal was not on technical grounds but rather that the balance of the evidence favoured the defendant’s case; this tends to support an order for costs.
- The appellant also refers to subsection (2)(f). In this case, the defendant did not unreasonably decline any opportunity to explain his version of events or produce evidence before the charge was laid; quite the contrary. Overall the appellant submits that the Magistrate failed to take into account, or to properly evaluate, a number of relevant factors such that the discretion impermissibly miscarried.
- The appellant’s subsidiary submission is that it is an appropriate case for the awarding of costs in a higher amount because of the “special importance” of the case under s 158B(2) of the Justices Act 1886. This refers, inter alia, to the circumstance that the appellant is a solicitor, and as a member of his professional body, the Law Society, had been compelled by its rules to report the fact of his being charged. Of course, his acquittal has deactivated professional concerns; nevertheless the mere fact of the mandatory report – possibly with attendant media attention, or the risk thereof - is relevant to the “special importance” criterion.
- In this context the appellant refers to Porter v Lewis; the considerations included the seriousness of the prosecution for the appellant and the impact it may have upon his career, his continued role in that capacity and his general public standing. That was a case involving the Deputy Mayor of the Gold Coast, rather than a solicitor.
- The appellant also refers to Hickey v Crime and Misconduct Commission. That appeal concerned an offence against s 218(1) of the Crime and Misconduct Act 2001 (Qld). The general landscape of that case was a CMC investigation of suspected official misconduct in relation to Gold Coast City Council elections in 2004. The appellant was a solicitor who had supplied information which was allegedly false or misleading, and he was acquitted. The court said at :
“The matter itself was an important one. It was of considerable public importance in relation to the conduct of a local government election and had attracted substantial media attention. The importance to the appellant himself of the outcome is also, in my view, relevant. Whilst it is trite to say that the outcome of a criminal trial is important for any accused, here the impact that a conviction for such an offence would have on the appellant’s profession, his business and his public reputation would be substantial. The ‘importance of the appeal’ must also be assessed in that regard.”
- Thus the appellant seeks that the order of the learned Magistrate be set aside, and that costs be allowed, in a higher amount having regard to the special importance. The submission is that the higher amount is just and reasonable in these circumstances; s 158B(2).
- In response, it is firstly outlined that the statutory framework for an appeal of this kind is pursuant to s 222 of the Justices Act. Conventionally, reference is made to Teelow v Commissioner of Police and, broadly, that the appeal is by way of rehearing. The powers of the Appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the Appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.
- The respondent also submits, correctly, that a mere difference of opinion about the way in which discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.
- The respondent points out by way of historical background that the High Court in Latoudis v Casey held that an award should be made in favour of a successful defendant in a criminal matter. In response thereto, the Queensland Parliament through a series of amendments to the Justices Act 1886 implemented the present regime concerning the awards of costs. It is noted that the public policy objective behind the restrictions is to ensure that a prosecuting authority is not deterred from properly bringing charges in accordance with its public duty or obligation.
- The respondent submits that the proper approach to this issue was set out in Murray v Radford where the court observed at p 7:
“It may be accepted that, but for s 158A the discretion which Magistrates have to order that the costs of a successful defendant be paid by an unsuccessful claimant will ordinarily be exercised in favour of such a defendant. See Latoudis v. Casey (supra). However that is not always the case. A discretion remains under s 158 to order otherwise.
There is no doubt that s 158A applied to this case because the complainant was a police officer. Under that section, despite s 158(1), the Magistrate may make a costs order such as the applicant says should have been made only if he is satisfied that it is proper that such an order should be made; and in so deciding he is obliged to take into account all relevant considerations including but not limited to those enumerated in ss (2). Section 158A is thus, plainly, a limitation on the discretion which s 158 permits to order costs against a complainant.”
- Thus, as I understand the respondent’s submission, the general presumption in favour of a successful defendant from Latoudis v Casey is confined by the later legislative provision and the detailed factors referred to therein.
- In this context the respondent submits that the learned Magistrate did not fail to take into account relevant considerations. He was fully aware of the discretion in s 158 and how it should be exercised. The decision was made following a two day summary trial and detailed submissions by the appellant’s counsel. In the costs hearing, the appellant expressly addressed the court on the deficiencies in conduct of the respondent’s investigation and cited cases in support of the appellant’s position.
- The respondent accepts that the decision of the learned Magistrate does not specifically address the taking of the statement from Kyle. However the significance of the statement was recognised by the Magistrate and it is submitted that he was not required to undertake a meticulous analysis or set out a detailed exposition of every aspect of the evidence and the arguments.
- Thus the respondent submits that the learned Magistrate did have regard to the relevant circumstances and the discretion did not miscarry.
- In relation to particular factors, the respondent submits that in relation to ss 2(c), whether the investigation into the offence was conducted in an appropriate way, the Magistrate’s finding was made following the two day trial and was justifiable. This is particularly so where, as outlined above, although the prosecution had been dilatory in obtaining the statement from the important witness Kyle, a previous delay caused by that oversight had been compensated for by an order of costs prior to the trial.
- In relation to s 158A(2)(d), mentioned above, the respondent concedes that the Magistrate erred in concluding that this was irrelevant. However, as I understand the submissions, this would at worst for the respondent lead to the determination of the Magistrate relating to this factor being set aside and, on a re-exercise of the relevant discretion the same result would follow; that is, on a proper consideration of all of the factors including the previous costs order, the discretion would still be exercised in favour of the respondent.
- The respondent also makes submissions as to the Magistrate’s finding that s 158A(2)(e) was irrelevant. This sub-section deals with the concept of whether the defendant brought suspicion on himself by conduct engaged in after the events constituting the commission of the offence. The respondent deals with the appellant’s submission to the effect that this factor is capable of embracing positive good conduct, such as that displayed by the appellant, rather than the bad conduct of bringing suspicion on oneself. That is, so the argument goes, where someone not only does not bring suspicion on themselves, but rather is forthcoming and helpful, as the appellant seems to be conceded to have been on this occasion, this should positively weigh in his favour. The respondent argues that this submission by the appellant really goes too far in reading into the words of the sub-section this kind of positive benefit.
- Similarly s 158A (2) (f) refers to unreasonably declining an opportunity to explain one’s version or produce exculpatory evidence. Again, the respondent concedes that the appellant was positively co-operative. The learned Magistrate did not specifically address this co-operation in his reasons other than the general observation that the appellant had provided a statement to police. Again, the respondent’s submission is that the appellant’s argument seeks to read too much into the sub-section. That is, the feature that the defendant did not unreasonably decline the relevant opportunity means that there is not a negative factor against him in the weighing exercise. It does not mean that there is a positive factor in his favour.
- Overall, the respondent concedes that the learned Magistrate was bound to consider all relevant considerations, and this was not limited to the matters set out in s 158A(2). The relevant factors do include the positive conduct of the appellant and it is not clear from the transcript that such matters were identified by the learned Magistrate. However the appellant’s counsel had provided detailed submissions, the content of which were considered by the Magistrate. Overall, despite the conceded error in relation to ss (d), the respondent does not concede that a re-exercise of the discretion would result in a costs order in the appellant’s favour.
- In relation to the “special importance” feature in s 158B, it is submitted that this concept is to be assessed objectively. Reference is made to Allison v Channel 7 Qld Pty Ltd. It was observed at :
“Properly construed the phrase ‘special difficulty, complexity or importance’ should be read as ‘special difficulty, special complexity or special importance’. These are relative terms in relation to the particular case. That is, in my view the test is an objective one of whether the difficulty, complexity or importance of the particular case at hand surpasses what is common or usual in an ordinary case. The inquiry ought not be directed to subjective importance of the case to the respective parties.”
- Thus the respondent submits that the case against the appellant was not particularly difficult or complex. Nevertheless the question of special importance because he was and is a practising solicitor may arise through damage to professional reputation or inability to practise the appellant’s profession. The respondent refers to Whitby v Stockair Pty Ltd & Anor, underlining that the provision is not intended to refer to the subjective assessment of a defendant as to whether the case is important to him or her.
- No doubt this is correct; the subjective feelings of a defendant could not possibly be determinative. As was said in Whitby, no doubt every criminal case is important to every defendant. However, as I understand the arguments of the appellant, even viewed objectively, the special importance of a case to a professional such as a solicitor is significant, as cases such as Hickey suggest. Whitby was not a case involving a member of a profession, particularly one which has, as here, mandatory reporting at the time of charge, not conviction.
- The respondent fairly acknowledges that the matter would have been embarrassing to the appellant and that the categories of “special importance’ are not closed and can include reputational damage. Reference is made to Cramp Pty Ltd as Trustee for the Cramp Family Trust v Jongkind at :
“That body of authority supporting an objective test should be followed. This is not to say that the impact of the matter upon a party is irrelevant to the exercise of discretion. In the earlier decisions of Power v Lewis and Hickey v Crime and Misconduct Commission the impact of prosecution on the career and public standing of the defendants was taken into account. However, as explained by Farr DCJ in Whitby v Stockair Pty Ltd it was the objective assessment of the impact upon the defendant which was relevant in each of those cases, not the defendant’s subjective response to the impact.” (citations omitted)
- The respondent concedes that media attention may have been personally embarrassing to the appellant and could have impacted on his professional standing as a solicitor. It is appropriate that this is taken into account, however this does not automatically conclude that the matter was one of special importance within the meaning of s 158B(2). The distinction is drawn between this case and Hickey, where the allegations did actually involve the appellant’s professional conduct as a solicitor. By contrast, in the present case, the circumstances deal with the appellant’s intoxicated conduct (although not criminal misconduct) at a social function, not suggested to be in any way connected with professional practice as a solicitor. Against this, of course, must be balanced the features referred to by the appellant that the reporting by him to his professional association was mandatory and thus it inevitably had professional consequences, albeit no doubt somewhat temporary. Professional consequences are not particularly addressed in the evidence and may or may not have persisted, to a greater or lesser degree. It is not helpful to speculate on such unidentified features; rather, the relevant feature is that the appellant was a member of a profession which did require mandatory reporting; in line with these procedures the appellant did report the incident; it thus had potentially significant consequences for his professional life, certainly continuing up to the time of trial, rendering the trial of particular importance; and at the end of the day, following the trial his position has been vindicated.
- At the end of the day, in my conclusion, the appeal ought be allowed. The respondent fairly concedes that the Magistrate did make an error in relation to the assessment of the factor in s 158A(2)(d). Although his Honour correctly identified that the dismissal of the matter was not made on technical grounds, this did not mean that ss (d) was not relevant. As outlined above, the analysis of Judge McGill in Benson v Matthews (No. 2) is that where the case falls into the category of dismissal on the grounds of insufficient evidence rather than technical grounds, this is a factor tending to support an order for costs.
- Thus the discretion falls to be exercised anew. Giving full weight to the matters advanced by the respondent, including the previous costs order, my conclusion is that nevertheless there should be a costs order in favour of the appellant. The circumstances include:
‐ the prompt explanation offered by the appellant, in the context of his frank admission that he had struck the complainant in self-defence;
‐ the failure of the prosecution to obtain a statement from Mr Kyle in a timely way;
‐ the unexplained delay in charging the appellant;
‐ and the lack of success of the prosecution for reasons which should have been obvious, or at least easily discoverable, to the prosecuting authorities from the beginning. That is, the prosecuting authorities had clear notice from the outset that it would be necessary to disprove self-defence beyond reasonable doubt and their failure to obtain the statement from Mr Kyle in a timely way and properly consider its contents meant that a poor assessment of the prospects of success was apparently made. This process is within the factor set out in s 158A(2)(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. The police were aware of self-defence from the outset; there is no reason why Kyle’s evidence was not available from the outset; both Kyle and the appellant seem to have been consistent in their evidence, and thus bringing or continuing the proceeding was inappropriate, in terms of the prospects of negativing self-defence to the required standard. Also relevant is ss (c), whether the investigation into the offence was conducted in an appropriate way; and (d), the finding was that there was insufficient evidence to convict the defendant. The appellant did not conduct himself in such a way as to bring himself within any of the disqualifying factors in (e) or (f).
- Thus the Magistrate’s order dismissing the application for costs will be set aside and costs will be awarded to the appellant.
- In relation to special importance, approaching the matter in an objective way, the features are nevertheless as I have outlined above, that, objectively, the appellant was a member of a profession which required mandatory reporting and in respect of which, had he been found guilty, the professional consequences could well have been significant. This is so despite the fact that the incident did not occur in a professional setting. In my conclusion, in all the circumstances, the matter was of special importance. In Hickey costs were awarded on three times the scale. In this case the costs claimed are $10,000. It was submitted at the hearing that the scale costs are such that doubling them would amount to approximately $5,000. In my conclusion this is an appropriate award.
- The order will be that the respondent pay the appellant’s costs of the summary trial be paid in the sum of $5,000. The charge having been an indictable offence, there will be no order as to costs of the appeal; see s 232(4) of the Justices Act.
 Gibson v Canniffe; Kidd v Baragan; Slavon v Moore;  QDC 319 at  per Devereaux SC, DCJ.
 (1936) 55 CLR 499 at 504-505.
 Compare Benson v Matthews (No 2)  QDC 056, McGill SC DCJ, at 
  QDC 188 per Samios DCJ at .
  QDC 340 at .
  QCA 84.
 House v The King (supra) at 504-505; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176-178; Nordis v Nordis (1986) 161 CLR 513 at 517-519.
 (1990) 170 CLR 534.
 Lewis v Utting, ex-parte Utting (1985) 1 Qd R 423 at 444.
  QCA 91.
 Xuerev v Viola (1988) 18 NSWLR 453 at 469.
  QDC 111.
  QDC 79.
  QDC 144.
 Justices Regulation 2014 Schedule 2, Part 2, items 1 and 2. Total $2,375.00
 Flynn v Commissioner of Police Service  QDC 99; Tierney v Commissioner of Police (No. 2)  QDC 33
- Published Case Name:
Jarad Maher v Commissioner of Police
- Shortened Case Name:
Maher v Commissioner of Police
 QDC 45
Kent QC DCJ
27 Mar 2020