Thompson v Rentoul[1996] QDC 274

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NOTICE TO APPEAL TO A JUDGE OF THE DISTRICT COURT

THE JUSTICES ACT 1886 TO 1985 - SECTION 222

BETWEEN:

AND:

REASONS FOR JUDGMENT - FORDE D.C.J.

Delivered the 5th day of July 1996

Question for Determination

The only question for determination on this appeal is whether a Magistrate having stated that the complaint is dismissed has power at that point to take submissions on costs when the parties are in a position to present the appropriate claim for costs, and therefore make an order relating to costs pursuant to S. 158 of the Justices Act 1886.

Factual Background

On 26th March, 1996 in the Magistrates Court at Brisbane, the Appellant, Mark Dougal Rentoul pleaded guilty to a complaint alleging a breach of s. 221C(1A) of the Income Tax Assessment Act 1936 (As Amended) between 7 July, 1991 and 21 May, 1993. The relevant complaint alleged failure at the time of paying wages to alleged employees to make deductions from such wages at the relevant rate prescribed in the Act. The relevant averments were that the appellant:

As part of its case the Respondent as Complainant in the lower Court sought recovery from the Appellant upon conviction, of lost, revenue and pecuniary penalties in the order of $85,000. The Crown called one witness, Stuart Boulger, an officer of the Australian Tax Officer. A record of interview was tendered as Exhibit 1 through Mr Boulger. At the completion of the prosecution case, the defence submitted that the record of interview should be excluded. After an adjournment, the Crown submitted that the learned Magistrate should permit it to re-open its case in order that the witness Boulger could be recalled to give evidence on a voir dire. The defence neither consented nor objected to such a course. In the exercise of his discretion, the Magistrate allowed the re-opening. The voir dire proceeded on the evidence of Mr Boulger for the Crown and the Appellant in his own defence. At the conclusion of the voir dire the learned Magistrate found that the admissions made in the record of interview were involuntary and rejected Exhibit 1. The question of the admissibility of the record of interview was adjourned overnight and the next morning the relevant ruling was made. The Crown at that stage conceded that the Crown case “must go” without the record of interview. Counsel for the Defendant at that stage made the formal submission that there was no evidence which would be capable of proving the elements of the offence beyond reasonable doubt. Both Counsel were asked whether they wished to add anything further and lengthy reasons were given in relation to a no case to answer.

At P. 10 of the transcript the following paragraph appears:

At that stage Counsel for the present Applicant asked for costs in the exercise of the discretion of the learned Magistrate. In the course of those submissions a Schedule of the proposed costs was given to the learned Magistrate. Counsel for the Crown referred to the High Court decision of Latoudis v Casey (1990) 170 C.L.R. 534. Reference was made by both the learned Magistrate and Crown Counsel to S. 158 of the Justices Act. The learned Magistrate referred to the Court of Appeal decision 53 of 1992, Carter v Bell, judgment given 11 August 1992.

Concessions by Crown

It should be noted at this stage that on this appeal the Crown made the following concessions:

Procedure on Appeal

The present appeal, of course, is under S. 222(1) which provides as follows:

Section 226 provides under “Division 2 - Appeals to a Judge of District Courts” as follows:

The learned Magistrate refused to make an order for costs as he felt bound by the decision of Carter v Bell and that he was in effect functus officio.

Grounds of Appeal

The grounds of appeal are as follows:

Procedure Before Stipendiary Magistrate

In explaining why he asked “Anything further?” after dismissing the complaint, the learned Magistrate stated that he always did that simply as a matter of courtesy at the end of each case. He confirmed that it was not an invitation to make an application for costs. He affirmed that he could not reopen the case as Bell v Carter was authority for the proposition that once he dismissed it he could not then incorporate an order for costs as indeed S. 158 prohibited him from so doing.

Section 158 provides as follows:

Relevance of Carter v. Bell

It was accepted on this appeal that an order could be made if Carter v Bell was not relevant in the present case.

That case involved an order to review from a decision of a Magistrate ordering costs against a police officer. There was a dismissal by consent of charges against the defendant of behaving in a disorderly manner and resisting the police officer in the execution of his duty. It was not clear whether the learned Magistrate purported to adjourn the question of costs to a date to be fixed or purported to order the police officer to pay the Defendant's costs and adjourn the quantum of those costs to a date to be fixed. At a later date, on the basis of evidence put before him, the learned Magistrate purported to fix those costs and to order the police officer to pay such costs in the sum so fixed. The Court of Appeal referred to s. 159 of The Justices Act 1886 which provides:

The following passage then appears as part of the reasons of the Court of Appeal:

It is not in dispute in the present case that there was material available to the learned Magistrate which would have allowed him to make a final determination on the question of costs. The same sheet which is Exhibit A to the affidavit of Mr Richards was available to the learned Magistrate. The quantum was not challenged by the Crown on appeal.

Costs on Dismissal

The provisions of S. 158 provide that “when Justices ... making an order dismiss the complaint, they may by their order of dismissal order ... costs as to them seem just and reasonable.”

The meaning of the words “by their order” requires some scrutiny. The word “by” according to the Compact Oxford English Dictionary New Edition is defined as follows:

There is no evidence in the present case that the learned Magistrate had in fact endorsed the file with the necessary order dismissing the complaint. A distinction may in some cases be drawn between announcement of the decision as part of the findings and the formal recording of the order on the papers. If the formal order had not been finalised on the papers, then it would be another argument to say that the order had not been perfected. The learned Magistrate specifically desisted from recording whether he had so endorsed the file notwithstanding the statement by Counsel for the Appellant that he did not know whether the learned Magistrate had formally recorded the order. In any event, he submitted that an invitation had been made after the indication of the order for dismissal whether there was anything further. It should also be mentioned that S. 159 requires that the sum allowed for costs be specified in the order of dismissal.

Facts in Carter v Bell - Distinguishable

The facts in Carter v Bell were quite different to the present case. In that case there was a necessity to adjourn the question of costs to allow the quantum to be determined. Whether the learned Magistrate had intimated that he would order costs is not clear. In any event, the facts in Carter v Bell establish that the Court was not in a position to finally determine costs. The present case therefore is clearly distinguishable.

Statutory Interpretation

The view adopted by the learned Magistrate is that once he had made his order he could not amend it to consider the question of costs. When considering whether the question of costs was to be made by his order, one can regard that as incidental or of secondary importance to his order. It was “away from the main purpose”. The meaning of this in my view does not require that the costs order be made instantaneously with the dismissal but rather that it can be made at the same time as long as the Court is in a position to make its final determination on the question of costs. In other words, the formal order for dismissal was to be made at or about the same time as the order for costs. To find otherwise would lead to an absurd or strict interpretation of the Act e.g., parties would have to ensure that their application for costs was properly prepared, argued and assessed before the learned Magistrate made the order. Of course, a Magistrate may say that he does not wish to formally record the order for dismissing the complaint but rather indicate that he intends to so do. To require a Magistrate to so indicate leads to a strict and in my view stilted interpretation of s. 158. In the interim, the parties may well prepare for the argument on costs. This may well involve another day for hearing unless the successful defendant was in a position to put the quantum of costs before the Court. It is often not known if the Court will reserve its decision or give its reasons instanter.

To delay in handing up the schedule of costs which may have been prepared may be fatal to an application in some instances. This may be where a Magistrate in his reasons dismisses the charge without saying that he has not formally made the order. In some instances, therefore, an error by the Magistrate would leave a party without the remedy for costs. Unlike civil proceedings, there appears to be no “slip rule” under the Justices Act which would be apposite to the present case. Section 147A(1) does not appear apposite in the present case. That section, of course, relates to re-opening proceedings where a penalty has been imposed or there is a failure to impose a penalty in conformity with the law or where the Justices record a conviction or make an order that is based on or contains an error fact.

Submissions of Crown

The Crown seemed to proceed on the basis that the appellant did not in fact appeal against the dismissal of the complaint which is the relevant order. The Crown referred to Schneider v Curtis (1967) Qd.R. 300 at 306 and Owen v Cannavan, Court of Appeal, No. 199 of 1994, judgment 4 August 1995. Born of those cases dealt with what could be described as an interlocutory order in the course of proceedings before a Magistrate. In Schneider v Curtis the Magistrate had ruled at the close of the complainant's case that there was a case for the defendant to answer. It was held that the proper course for a Magistrate would be to refuse an adjournment sought for the purpose of reviewing a decision on an application made during the course of the hearing of a complaint in a criminal case and before the complaint itself had been fully heard and determined. In applying Schneider v Curtis, the Court of Appeal in Owen v Cannavan held that where a Stipendiary Magistrate refused to remit a summary proceedings from one venue to another involved as an interlocutory order and that an appeal under S. 222 of the Justices Act lay only from an order disposing of a complaint e.g. by dismissing it and did not lie from an order made during the course of the proceedings.

In the present case on appeal, the order dismissing the complaint was made and the order for costs was, I find, incidental to that order. Therefore, those cases appear not to be relevant. The Crown relied upon Carter v Bell, Kemlin v Wilson (1966) Qd.R. 237 and R v Caldwell and Kinross ex parte Makin (1986) 2 Qd.R. 397. I have already discussed the Carter v Bell decision. Neither Kemlin v Wilson nor R v Caldwell and Kinross was concerned with orders for costs. In the former case, it was held that once a Magistrate has announced a conviction he is functus officio in the sense that he cannot afterwards allow a plea of guilty to be withdrawn although he may adjourn the hearing under S. 88 of the Justices Act 1886 for any sufficient reason. It is interesting to note in Kemlin v Wilson that a case of Rex v Manchester ex parte Lever (1937) 2 K.B. 96 was referred to. The Divisional Court held that the convictions which had been announced on the first occasion were complete, notwithstanding that they had not been entered in the Registrar, and that it followed that the defendant would have been entitled to plead autre fois convict on the second occasion. The convictions recorded on that occasion were therefore quashed. One might infer that once the order is made in Court that the order is regarded as being complete notwithstanding that they had not been formally written in the records. It is unnecessary for that to be decided in the present case. A similar view about announcing a conviction without an entry in the Registrar being clearly a conviction was affirmed in R v Essex Justices ex parte FINAL (1963) 2 Q.B. 816. That case is referred to in Kemlin v Wilson at 241-242. Lord Parker CJ held that the Justices were in his judgment functi officio from the moment when they had announced their decision however inconvenient the result might be. Of course, in that case, it involved the offence itself which was found to have been proved and a fine given. Legal argument was then addressed to the Bench with the result that the Justices changed their minds and dismissed the information. The present case is not in that category. The present case relates to an order for costs which is incidental to the order made dismissing the complaint. An incidental order could only be made in the present case upon the determination of the main issue namely the guilt or otherwise of the appellant. Kelmin v Wilson was considered in R v Caldwell and Kinross. There is nothing in the latter case which takes the matter any further as far as the present appeal is concerned. The Crown in its written submissions argued that the procedure adopted by the learned Magistrate is not capable of review under S. 222. I find that submission difficult to comprehend in view of the concession by the Crown that a failure to make an order for costs is subject to appeal under S. 222. The question of costs did not arise until after the indication that the complaint was to be dismissed. It had nothing to do with the procedure adopted by the Magistrate prior to making the order of dismissal. The question of costs is incidental and of secondary importance to the dismissal of the complaint. It cannot be seen in that context to be of an interlocutory nature in the course of the proceedings but rather as part of the dismissal of the complaint at the end of the proceedings. In my view the question of costs arises by the order of dismissal and is incidental thereto.

Discretion

The facts giving rise to the complaint have been referred to previously. The hearing occupied two days, namely the 26th and 27th March 1996. The prosecution called one witness namely Stuart Boulger, the employee of the Australian Taxation Office. Towards the end of his cross examination it was disclosed that an agreement had been made with the appellant's then solicitor, that in return for total co-operation by the appellant in their investigation, the Australian Taxation Office would only require the appellant's last five years income tax returns to be lodged. By reference to notes made of a telephone conversation with the appellant's then solicitor on 27 September 1993, Boulger stated that it was further agreed between him and the solicitor at that time that further action would be withheld until returns were lodged by the Appellant. Defence Counsel made a submission at the end of the Crown case that the admissions contained in the Record of Interview on 12th May 1994 were involuntary and therefore as a matter of law ought to be excluded. The learned Magistrate heard submissions concerning whether or not the Crown ought to be allowed to re-open its case to allow Boulger to be recalled to give evidence on a voir dire. The learned Magistrate exercising his discretion allow the Crown to re-open its case. He held that even if the application had not been made he would have held a voir dire in any event as to the unfairness aspect. During the voir dire the agreement was explored. The existence of the agreement was not in issue. The appellant maintained that discussions did continue by way of negotiation between the parties after the telephone conversation of 27th September 1993. However, it was not contested that the agreement was for the lodgment of the Income Tax returns by December 1993. At the end of the Record of Interview on 12 May 1994, the lodgment of the Income Tax Returns was overdue. Because of this and prior to the Record of Interview, arrangements had been made between tax investigators and the appellant's then accountant for a meeting the day after the Record of Interview, namely 13 May 1994. It is clear from the evidence that the investigators were handed the relevant Income Tax Returns by the Appellant's accountant on 13th May 1994, the day after the Record of Interview. Late on the afternoon of the 26th March 1996 on completion of the voir dire, the learned Magistrate adjourned the matter for determination to 10.00 a.m. on 27th March 1996. On that day he handed down his decision on the voir dire.

The Crown argue that in the circumstances an order for costs ought not to be made. It was conceded by the Crown at the hearing of the appeal that in the ordinary course if a record of interview is excluded then a defendant ought to be entitled to costs. Notwithstanding that the question of the admissibility of the record of interview was only an issue during the cross-examination of Mr Boulger, the fact of the matter is that the record of interview was excluded for good reason and so held by the learned Magistrate. I have had regard to the provisions of S. 158A and find as follows:

The learned Magistrate may well have adjourned the hearing for a second day in any event to consider the evidence on the voir dire. In those circumstances, costs ought not to be limited to one day. I rely on the Schedule being part of Exhibit A to the Affidavit of Peter Frederick Richards. Given the complexity of the matter, it is my view that the sum of $6,425 for costs seems to be just and reasonable within the meaning of S. 158 of the Justices Act 1886.

Powers on Appeal

Section 225 of the Justices Act 1886 provides as follows:

The power to order costs on appeal has been referred to (S. 226). The orders which I make are as follows: