Power v Lewis[2007] QDC 188

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant is a Local Government Councillor and the Deputy Mayor of the Gold Coast City Council.

2. [2]
   On 11 April 2006, the Crime and Misconduct Commission took out a complaint against the appellant charging him with giving a document to the Commission containing false and misleading information in two material particulars. The matter was heard over a period of three days from 21 August 2006. The complainant was represented by Mr Rafter SC and the appellant by Mr Temby QC.

3. [3]
   The maximum penalty for the offence was 85 penalty units or one year’s imprisonment. The appellant could also, if found guilty, have been ordered to pay an amount for compensation for the cost of the investigation.

4. [4]
   The learned Magistrate found there was no case to answer in relation to one of the particulars of the complaint. He adjourned the case for decision. The learned Magistrate acquitted the appellant of the remaining particular of the complaint. The learned Magistrate published his reasons for doing so.

5. [5]
   The appellant sought costs upon the dismissal of the complaint. That was opposed by the complainant.

6. [6]
   The appellant sought costs in the sum of $102,461.21, being the amount billed by the appellant’s lawyers.

7. [7]
   The learned Magistrate was not satisfied that in the case before him it was appropriate to make an order as to costs. The learned Magistrate also observed that even if he was prepared to make an order for costs, the material provided by the appellant was simply insufficient to come to any conclusion as to whether the costs sought were just and reasonable. Particulars of the costs only in very general terms apparently had been provided.

8. [8]
   The appellant appeals against the learned Magistrate’s decision not to make an order as to costs. Firstly, the appellant contends the learned Magistrate erred in the exercise of his discretion not to order costs and secondly, he ought to have assessed the costs.

9. [9]
   On the hearing of the appeal, the appellant sought to tender an affidavit from his lawyers and particulars of costs. The respondent objected to the tender of the affidavit and particulars of costs on the grounds that special grounds did not exist to receive the affidavit and particulars of costs as new evidence. I reserved my decision about the tender of the affidavit and particulars of costs.

10. [10]
    Section 158 and section 158A of the Justices Act 1886 provide as follows:

“158 Costs on dismissal

3. (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.

3. (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 costs as to the court seem just and reasonable.

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

3. (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.

3. (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—

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

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; and

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

4. (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

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

6. (f)
   whether the defendant unreasonably declined an opportunity before a charge was laid—

1. (i)
   to explain the defendant’s version of the events; or

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

7. (g)
   whether there was a failure to comply with a direction given under section 83A;15 and

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

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

3. (3)
   If an order for costs under section 158 is made against a complainant who is a police officer or public officer (within the meaning of this subsection), the clerk of the court is to give to the defendant a certificate signed by the clerk showing the amount of costs awarded.

3. (4)
   Subject to subsection (5), the defendant is entitled to be paid by the State the amount shown in the certificate within 2 months after payment is claimed.

3. (5)
   If an appeal against an order for costs is made under section 22216—

1. (a)
   payment of the amount shown in the certificate is stayed until the appeal is decided; and

2. (b)
   payment is to be made of the amount (if any) ordered or confirmed by further order made on the appeal.

3. (6)
   In subsection (3)—

public officer does not include—

1. (a)
   an officer or employee of the public service of the Commonwealth; or

2. (b)
   an officer or employee of a statutory body that represents the Crown in right of the Commonwealth; or

3. (c)
   an officer or employee of a local government.

11. [11]
    The learned Magistrate correctly determined that the decision to award costs was a discretionary one. He also cited the Court of Appeal decision in Murray v Radford [2003] QCA 91, where at p 7 the court said of ss 158 and 158A of the Act:

“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 (1990) 170 CLR 534.  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 circumstances including but not limited to those enumerated in subsection (2).  Section 158A is thus, plainly, a limitation on the discretion which s 158 permits to order costs against a complainant.”

12. [12]
    Therefore the learned Magistrate was fully aware that a discretion was involved and how the discretion ought to be exercised.

13. [13]
    In that respect, the learned Magistrate considered the conduct of the proceedings and the basis upon which those proceedings were dismissed. In the course of doing so he noted that it was only in relation to one element of the offence; that of knowledge by the appellant that the statement made about circumstances that took place some 18 months earlier was false and misleading in a material particular that the learned Magistrate found the defence was entitled to an acquittal based on a reasonable doubt.

14. [14]
    The learned Magistrate accepted that the appellant raised the issue of knowledge before the prosecution commenced, but said that it could not be said there was no evidence on that issue. The learned Magistrate states that it was arguably a matter which needed a determination as to whether it was sufficient to meet the criminal standard of proof and he found that it did not.

15. [15]
    The learned Magistrate concluded that there was no evidence from which it could be inferred that the prosecution was brought in other than good faith or that there was a failure to take appropriate steps in the investigation and investigate in an appropriate way. The learned Magistrate cited subparagraphs (a), (b) and (c) of subsection (2) of s 158A.

16. [16]
    The learned Magistrate states the prosecution was brought as a result of the appellant’s response to an investigation into plainly controversial behaviour concerning the upcoming Council election and the establishment and use of a trust fund. The learned Magistrate said he was not making any determination as to the propriety of that behaviour but that was the context in which the investigation took place.

17. [17]
    Further, the learned Magistrate accepted that in this case it could not be said that the appellant unreasonably declined an opportunity before the charge was laid to explain his version of events. He thought it worked both ways in the case before him. He noted the appellant had claimed privilege in giving the documentary response and claimed privilege at the Commission hearing. The learned Magistrate thought the investigator would have reasonably felt that the appellant was unlikely to be further responsive and did not seek an interview; but equally that should not be considered adversely against the appellant in this argument as to costs. Therefore, the learned Magistrate thought subparagraph (2)(f) of s 158A of the Act was not a decisive factor in this case.

18. [18]
    The learned Magistrate also thought subparagraph (2)(i) of s 158A of the Act did not apply and to the extent that it would, it was a factor which would favour the appellant.

19. [19]
    However, the learned Magistrate concluded that the matters raised earlier were important factors which in his view were determinative against making an order for costs.

20. [20]
    In all the circumstances relevant to the case before the learned Magistrate, he concluded he was not satisfied that in this case it was appropriate to make an order as to costs.

21. [21]
    An appeal against the exercise of a discretion is to be determined by established principles. In House v The King (1936) 55 CLR 499 at 504-505 the majority of the High Court said:

“It is not enough that the judges composing the Appellate Court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.”

22. [22]
    While a court on appeal ought to be very slow before overturning the exercise of a discretion, it is my opinion that, while the learned Magistrate took into account some relevant circumstances listed in subsection (2) of s 158A, he did not take into account other relevant circumstances and give sufficient weight to other relevant circumstances.

23. [23]
    Firstly, the learned Magistrate accepted the appellant’s solicitors raised the issue of knowledge before the prosecution commenced.

24. [24]
    However, the learned Magistrate said it could not be said there was no evidence on that issue. Further, he said it was arguably a matter which needed a determination as to whether it was sufficient to meet the criminal standard of proof and he found it did not.

25. [25]
    Although the learned Magistrate took this relevant circumstance into account when deciding not to make an order for costs, in my opinion, he ought to have weighed in favour of the appellant his lawyer’s notice to the prosecution.

26. [26]
    This is because otherwise the appellant’s lawyer’s notice to the prosecution and the result of the prosecution would be meaningless.

27. [27]
    Secondly, on the quantum of costs the learned Magistrate expressed the view that the prosecution was not particularly complex or difficult. Further, that the factual issues were not complex and were largely uncontroversial and not contested in many respects. Further, there had been earlier Commission hearings which were part of the evidence produced and the brief of evidence was comprehensive but not particularly large or difficult. Further, he noted the hearing was conducted over a two/three day period.

28. [28]
    However, in my opinion, the learned Magistrate did not take into account as a relevant consideration the seriousness of the prosecution for the appellant and the impact that may have upon his career, his continued role in that capacity and his general public standing.

29. [29]
    In these circumstances in my opinion, it is to be expected the appellant would engage an eminent Queen’s Counsel and experienced lawyers to act in his interests.

30. [30]
    In my opinion, the seriousness of the prosecution and the impact upon the appellant ought to have been taken into account by the learned Magistrate as a relevant circumstance and weighed in favour of making an order as to costs.

31. [31]
    Thirdly, although the appellant by his lawyers did not present the claim for costs in a manner to permit the learned Magistrate to make a determination of the appellant’s entitlement, the learned Magistrate ought to have taken into account as a relevant circumstance that the appellant’s claim for costs on its face was genuine and weighed that in favour of making an order as to costs.

32. [32]
    In these circumstances, in my opinion, the exercise of the discretion by the learned Magistrate miscarried.

33. [33]
    I allow the appeal. In the exercise of my discretion, I am satisfied that it is proper to make an order that the respondent pay the appellant’s costs to be awarded at a higher amount than that prescribed by regulation.

34. [34]
    With respect to the affidavit and particulars of costs, I give the appellant leave to file the affidavit and particulars of costs as new evidence, subject to any further submissions and evidence from the respondent. I consider there are special grounds for receiving these documents. My decision is in the appellant’s favour and the particulars of costs provide a detailed account to allow a determination to be made about the quantum of the costs.