Hickey v Crime and Misconduct Commission
[2008] QDC 340
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- Unreported Judgment
- Hickey v Crime and Misconduct Commission[2008] QDC 340
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Hickey v Crime and Misconduct Commission[2008] QDC 340
Hickey v Crime and Misconduct Commission[2008] QDC 340
DISTRICT COURT OF QUEENSLAND
CITATION: | Hickey v Crime and Misconduct Commission [2008] QDC 340 |
PARTIES: | ANTHONY WILLIAM HICKEY (Appellant) v CRIME AND MISCONDUCT COMMISSION (Respondent) |
FILE NO/S: | 2868 of 2006 |
DIVISION: | Civil |
PROCEEDING: | Appeal – Costs |
ORIGINATING COURT: | Magistrates’ Court Brisbane |
DELIVERED ON: | 15 August 2008 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19 May 2008 |
JUDGE: | Shanahan DCJ |
ORDERS: | Respondent to pay $11,760 as costs of the appeal. I direct that such an amount be paid to the Registrar of the District Court, Brisbane by 15 October 2008 to be then paid to the Appellant. Respondent to pay $26,960 as costs of the summary trial. |
CATCHWORDS: |
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COUNSEL: | Ms K Mellifont for the appellant Mr M Plunkett for the respondent |
SOLICITORS: | Gilshenan and Luton Legal Group for the appellant Official Solicitor, Crime and Misconduct Commission for the respondent |
- [1]On 13 September 2007 I allowed the appellant’s appeal against conviction and entered a finding of not guilty in relation to an offence against s 218(1) of the Crime and Misconduct Act 2001 (Qld). The appellant had been convicted after a three day summary trial. I indicated in my decision that I would hear the parties as to costs.
- [2]On 19 May 2008 the parties argued the issue of costs as well as providing written outlines and other material upon which they wish to rely.
- [3]The appellant sought payment of his costs in relation to the public enquiry conducted by the Crime and Misconduct Commission (CMC), the three day summary trial and the appeal. The hearing of the appeal took one day. At the hearing on 19 May 2008 the appellant abandoned the claim for the costs of the CMC hearing. The respondent opposes the award of costs. If costs are to be awarded, the respondent argues that costs should be limited as prescribed by the Justices Act 1886.
- [4]The appellant has provided material that shows that the costs he actually incurred were $83,585.73 for the summary trial and $119,686.90 for the appeal. An affidavit of Mr A Bloom, Queensland General Manager of D G Thompson Legal Costs was received on the costs hearing, over objection by the respondent. That indicated two assessment bases. One was based on the solicitor/client costs in accordance with the client agreement and the second based on the District Court scale. The costs assessed using the client agreement were $75,200 for the summary trial and $114,600 for the appeal. The costs assessed using the District Court scale were $68,000 for the summary trial and $108,400 for the appeal. The respondent argues that those assessment bases were inappropriate in the circumstances, are extravagant and, in any event, contain items which should not be allowed on any assessment basis (e.g. costs of a press release).
The Background
- [5]The appellant was convicted of an offence that on 13 April 2005 he gave the CMC a document containing information which was false or misleading in a material particular. To prove that charge it was accepted by the parties that the prosecution was required to prove that the appellant knew that the information was false or misleading and that he knew of the materiality.
- [6]The CMC was assessing allegations of suspected official misconduct in relation to the Gold Coast City election of March 2004. In the course of that assessment the appellant was asked to supply information concerning details of a trust fund administered by the appellant. The appellant supplied information on 13 April 2005. The provision of that information founded the charge.
- [7]A CMC hearing later took place during the investigation of the matter. The appellant gave evidence on 18 and 19 October and 24 November 2005. He was extensively questioned about his response to the requests by the CMC for information.
- [8]At some stage of the CMC investigation, the appellant had provided his office file in relation to that trust account. As I noted in my reasons, that file was properly maintained, was subject to the Law Society’s trust account regime and contained full details of the trust account.
- [9]This background is set out in more detail in my judgment in relation to the appeal, particularly at paragraphs [9] – [39].
- [10]The appellant faced a summary trial on 8, 9 and 31 August 2006. Each party was represented by senior counsel on the trial. On the trial the prosecution called three employees of the appellant’s firm. They gave evidence of the directions given by the appellant for the preparation of the documents of 13 April 2005 and the office procedures adopted by them in the preparation of those documents. That evidence, as I found on the appeal, was crucial in determining whether the prosecution had proved its case to the required standard. It was also clearly within the knowledge of the CMC who prosecuted the matter directly.
- [11]The appellant was convicted, a fine was imposed and a conviction was recorded. The appeal was heard on 16 July 2007. Again, each of the parties was represented by senior counsel as well as a junior counsel with respect to the appellant.
Costs Under the Justices Act 1886
- [12]At common law a successful defendant in a criminal case is not entitled to costs (Berry and British Transport Commission [1961] 3 AIIER 65). That rule was well recognised in Queensland (R v Kimmins, ex parte A-G [1980] Qd R 524; R v Foggo, ex parte A-G [1989] 2 Qd R 49). In Latoudis v Casey (1990) 170 CLR 534 the High Court, by a majority, found that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant in a criminal matter.
- [13]The Queensland legislature, by a series of amendments to the Justices Act 1886, introduced a regime in relation to the award of costs which was clearly intended to replace the principles laid down in Latoudis v Casey (see Murray v Radford [2003] QCA 91). The clear principle behind the amendments is to place limits on the discretion to award costs to a successful defendant in a criminal prosecution so that a prosecuting authority is not deterred from properly bringing charges in accordance with its public duty or obligation (Lewis v Utting, ex parte Utting [1985] 1 Qd R 423 at 444).
- [14]This appeal was brought pursuant to s 222 Justices Act 1886. The decision whether or not to award costs and the quantum of any costs is governed by the provisions of that Act. On the hearing of an appeal under s 222, the Judge may confirm, set aside or vary the order or make any other order in the matter the Judge considers just (s 225(1)). The Judge may exercise any power that could have been exercised by whoever made the order appealed against (s 225(3)). Accordingly it falls for consideration whether orders should be made for costs of both the appeal and the summary trial and if so on what basis.
- [15]In relation to costs on appeal, s 226 Justices Act 1886 provides,
“226 Costs
The Judge may make such order as to costs to be paid by either party as the Judge may think just.”
- [16]Section 232A provides,
“232A Costs for Division
- (1)In deciding the costs that are just for this division, the Judge 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 Judge may allow a higher amount for costs if the Judge is satisfied that the higher amount is just having regard to the special difficulty, complexity or importance of the appeal.”
- [17]In relation to the costs of the appeal, I must be satisfied that it is just to make such an order and then the provisions of s 232A apply.
- [18]In relation to the costs of the summary trial, the relevant provisions of the Justices Act 1886 are, as relevant here,
“158 Costs on Dismissal
- (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.
…
158A Exercise of Discretion in Relation to an Award of Costs
- (1)Despite s 158(1), justices who dismiss a complaint may make an order for costs in favour of the defendant against a complainant who was 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
- (iii)the explanation or evidence could have avoided a prosecution; and
- (g)whether there was a failure to comply with a direction given under s 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.
158B Costs for Division
- (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.”
- [19]In relation to the costs of the summary trial, I must be satisfied that it is just and reasonable to make such an order and also be satisfied that it is proper that the order for costs should be made (s 158A(1)). Here the complainant in the summary trial was a public officer. If I am so satisfied then the provisions of s 158B apply.
Costs of the Appeal
- [20]In the investigation stage of the CMC enquiry, the appellant fully co-operated. He provided his office file, he allowed investigators access to his office computer system and he allowed the use of his office for CMC investigators to interview his staff. He answered questions during the CMC hearing over three days without being legally represented and without once claiming privilege.
- [21]The CMC were well aware of the evidence of the appellant’s staff which I found was of substantial importance in the decision as to whether the prosecution could establish its case to the required standard. Written submissions were provided to the CMC hearing on behalf of the appellant emphasising those issues. The prosecution was instituted with that knowledge.
- [22]It was submitted on behalf of the appellant that the CMC had shown bad faith in the way it dealt with the appellant during the CMC hearing and its institution of the prosecution. It was submitted that this was relevant to my decision as to whether to award costs as well as to the quantum of those costs. Whilst the appellant was treated somewhat robustly during the CMC hearing, being without legal representation and with no attempt being made to ensure that he was aware of his rights, the appellant was, of course, a practising solicitor. I am not satisfied there was any improper motive in the prosecution. The issue investigated by the CMC was of significant public importance and there was a public interest in fully canvassing the issues. The only criticism which could be made of the CMC was that it did not refer the issue of the appellant’s prosecution to an independent prosecuting authority (the DPP) as submitted by counsel assisting the CMC hearing. Such a reference would have allowed an independent objective assessment of the strength of the case against the appellant. This is particular the case where the CMC was the actual alleged victim of the supply of misleading information.
- [23]Of relevance also to the issue of costs is the appellant’s conduct of the summary trial. Through negotiation between legal representatives the issues were clearly defined and the number of witnesses required was limited. The appellant’s co-operation in this is relevant to the question as to whether it is just to award costs.
- [24]The crucial matter, in my view, is that the CMC were clearly made aware of the issues raised in the evidence of the staff of the appellant and should have assessed the impact that that had on the chances of a successful prosecution. The appellant made concerted efforts to ensure that the CMC was aware of these issues and the impact they had on the prosecution case. As I found on the appeal, the impact of these issues was telling. The prosecution proceeded in any event.
- [25]For those reasons, I am of the view that it is just to award costs in relation to the appeal.
- [26]I am also of the view that it is just, having regard to the special difficulty, complexity or importance of the appeal, to allow a higher amount for costs than under the scale provided.
- [27]The amount of material to be considered in relation to the transcript of the CMC hearing and the summary trial itself was extensive. Whilst the issues on the appeal were not particularly complex, there were a number of grounds of appeal that the learned Magistrate had misdirected himself. That entailed a detailed recourse to the evidence.
- [28]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.
- [29]Another relevant factor in my view as to whether the appeal could be characterised as having “special difficulty, complexity or importance” is the way in which the prosecuting authority approached the matter. At both the summary trial and the appeal the CMC was represented by senior counsel. That indicates the importance with which the CMC regarded the matter.
- [30]For those reasons, I am satisfied that it is just to allow a higher amount for costs than provided under the scale. I will deal with quantum later.
Costs of the Summary Trial
- [31]I must be satisfied that it seems “just and reasonable” to order the complainant to pay the costs of the summary trial and also that it is “proper” that the order for costs should be made.
- [32]Again the CMC was well aware of the issues to be raised by the appellant on his summary trial and should have been aware of the difficulties occasioned to the prospects of the success of a prosecution by the evidence to be given by the appellant’s staff. As noted above, the appellant had fully co-operated in the investigation prior to the institution of the charge against him. The prosecution however proceeded.
- [33]For that reason, I am also of the view that it is just and reasonable to award costs in relation to the summary trial and that it is also proper for the costs order to be made. In relation to some of the specific considerations contained in s 158A(2), it is clear in my view that the proceeding was brought and continued in good faith but that there should have been a more objective assessment of the strength of the prosecution case; the order for dismissal (on the successful appeal) was not made on technical grounds; the appellant did not unreasonably decline to give an explanation or to produce evidence which could have avoided a prosecution (indeed he actively provided such evidence) and he in fact conducted his defence in a way that shortened the length of the summary trial.
- [34]I am also of the view, pursuant to s 158B(2), that it is just and reasonable, having regard to the special difficulty, complexity or importance of the case, to allow a higher amount than under the scale. There was a voluminous amount of material to assess from the CMC hearing. As described above the matter had considerable public importance and also substantial personal importance for the appellant. Again the CMC briefed senior counsel to prosecute in the summary trial. For those reasons, I am satisfied that the case had “special difficulty, complexity or importance”.
Quantum of Costs
- [35]With respect to the costs of the appeal, s 232A(1) provides that when deciding the “costs that are just for this division” (Division 1, Part 9), the judge may award costs only “for an item allowed for this division under a scale of costs prescribed under a regulation and up to the amount allowed for the item under the scale”. Sub-section (2) allows for a higher amount in the way described above.
- [36]With respect to the costs of the summary trial, s 158B provides that when in deciding the “costs that are just and reasonable for this division” (Division 8, Part 6), the Justices may award costs only “for an item allowed for this division under a scale of costs prescribed under a regulation and up to the amount allowed for the item under the scale”. Sub-section (2) allows for a higher amount in the way described above.
- [37]Section 266 of the Justices Act 1886 provides,
“266 Regulations
- (1)The Governor in Council may make regulations for the purposes of this Act.
- (2)A regulation may make provision with respect to:
- (a)the matters for which fees, costs and charges are payable under this Act, the amounts of the fees, costs and charges, the persons who are liable to pay fees, costs and charges, when fees, costs and charges are payable, and the recovery of any unpaid amount of fees, costs and charges; and
- (b)prescribing offences for contraventions of a regulation, and fixing a maximum penalty of a fine of two penalty units for such a contravention.
- (3)The power conferred by this section to make a regulation providing for the imposition of fees may be exercised by providing for all or any of the following matters:-
(a) specific fees;
(b) maximum or minimum fees;
(c) scales of fees;
(d) the reduction, waiver or refund of fees.
- (4)The power to make a regulation about costs includes power to provide for a scale of costs.”
- [38]Justices Regulation 2004 provides at Regulation 18 that the scale of costs for Part 6, Division 8 and Part 9, Division 1 of the Act is contained in Schedule 2.
- [39]Schedule 2 of that Regulation provides,
“Part 1 General
- Scale sets out amounts up to which costs may be allowed
This scale sets out –
- (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.
Note –
A higher amount for costs may be allowed under s 158B(2) or 232A(2) of the Act.
- Item of costs covers all professional work
An item in Part 2 covers all legal professional work, even if the work is done by more than one lawyer.
- Only necessary or proper costs may be allowed.
A cost is to be allowed only to the extent to which –
- (a)incurring the cost was necessary or proper to achieve justice or to defend the rights of the party; or
- (b)the cost was not incurred by over caution, negligence, mistake or merely at the wish of the party.
- Appeal to District Court Judge –
Professional costs are 20% higher than for complaint.
For an appeal to a District Court Judge under Part 9, Division 1 of the Act, the amount up to which costs may be allowed for legal professional work is the amount that may be allowed under Part 2, as if the work were for a complaint, increased by 20%.
Part 2 Amounts up to which costs may be allowed for legal professional work
Work for hearing of complaint up to and including day one.
- Instructions and preparation for the hearing, including attendance on day one of the hearing … up to $1,500.
After day one.
- For each day of the hearing after day one … up to $875.
Other Court Attendances
- Court attendance, other than on the hearing of the complaint … up to $250.”
- [40]The appellant submits that it is just (and reasonable) to award costs at the full indemnity solicitor/client basis or on the amount as calculated on the District Court scale. The respondent submits that if costs above scale are to be awarded, that such costs must bear some relationship to the scale provided in Justices Regulation 2004.
- [41]The appellant basically submits that I have an unfettered discretion to assess the quantum of costs if I am satisfied it is just (and reasonable, in relation to the costs of the summary trial) to allow costs above the scale.
- [42]The respondent submits that the scale should be used as a guide in arriving at a quantum above the scale (Washburn v State Energy Commission (WA) 1992 8 WAR 188 at 193, 194; Durrant v Gardner [2000] QDC 198, McGill DCJ, 23 June 2000 at [46]). It is submitted that the amount awarded should be a small multiple of that scale.
- [43]To my mind, it is clear that the legislature has limited the discretion to award costs to successful defendants in criminal prosecutions as a matter of policy. That policy is based on the public interest of ensuring that the bringing of proper prosecutions is not fettered by the prospects of extensive costs orders being made in the event of unsuccessful prosecutions. Any award of costs above the scale must be made with that principle in mind. No authorities have been placed before me where solicitor/client costs or indemnity costs have been awarded in these circumstances.
- [44]The costs to be awarded must be “just” in relation to the appeal and “just and reasonable” in relation to the summary trial. The amounts to be awarded must be made bearing in mind the policy of the legislation. The scale in the regulation is a clear indication of that policy as it bears little relation to present day economics. However, to my mind, the legislative intent is clear.
- [45]The respondent submits that rather than descending into the minutiae of the legal bills, the court could refer the matter to taxation for a detailed assessment or award a lump sum upon global considerations. I prefer to award a global sum for the purposes of certainty and to bring a conclusion to the matter.
- [46]It must also be remembered that the case involved a three day hearing before a magistrate and a one day appeal before a single judge. Any assessment of what is just (and reasonable) must bear that in mind.
- [47]The Respondent also submits that the amount of costs should be limited to the items set out in Schedule 2 of the Regulation. That may be so when costs are awarded under s 158B(2) and s 232A(1) but I am of the view that no such limitation applies when it is appropriate to award a higher amount under s 158B(2) or s 232A(2). In that regard, the Note to paragraph 1 of the Schedule 2 of the Regulation recognises the discretion to allow a higher amount for costs which, in my view, qualifies the limitation in paragraph 1.
- [48]The respondent submits that a fair assessment for a global sum may include two days preparation for counsel and solicitor and two days appearing at hearing for counsel and solicitor for the summary trial and one day’s preparation for counsel and solicitor and one day’s appearance for counsel and solicitor at the appeal. That submission appears to overlook that the summary trial took three days of hearing.
The respondent also submits as an alternative that a daily fee for the appearance of senior counsel (based on the National Guide to Counsel Fees, Registrar, Federal Court of Australia, 27 July 2006) be used to calculate a maximum sum based on the days of hearing. That equates to maximum costs of $17,210 for the summary trial and $6,360 for the appeal.
I am satisfied that it was appropriate to brief senior counsel in this matter. Any award of costs that is just (and reasonable) should recognise that.
In relation to the summary trial I am of the view that it is just and reasonable to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs for the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. To my mind a multiple of three times that scale would be appropriate.
The calculations to achieve a just and reasonable lump sum are:
| $250.00 |
($4,500 plus $6,360) | $10,860.00 |
($2,625 plus $5,300) | $7,925.00 |
($2,625 plus $5,300) | $7,925.00 |
TOTAL | $26,960.00══════ |
In relation to the appeal I am of the view that is just to award costs based on the daily rate for senior counsel as provided by the Federal Court scale but also to award costs of the solicitor’s preparation as a function of the scale set by the Justices Regulation 2004. Again a multiple of three is appropriate.
The calculations to achieve a just lump sum are:
($5,400 plus $6,360) | $11,760.00 |