Dyson v Police[2010] QDC 103

[2010] QDC 103

DISTRICT COURT

APPELLATE JURISDICTION

JUDGE RYRIE

ROMA

DATE 10/03/2010

ORDER

HER HONOUR:  This is an appeal by John Edward Dyson against the respondent, Gregory Mark Caletti. 

For the purposes of the decision, Mr Dyson was a defendant and Mr Caletti was the relevant police officer involved in bringing the charge against Mr Dyson.  Mr Dyson had been charged with exceeding the speed limit on the 1st of November 2008 pursuant to Rule 20 of the Transport Operations Road Use Management Road Rules Regulations 1999.

The Court file indicates that the complaint sworn and summons in respect of that offence was dated 1st of December 2008 and the first appearance was required by Mr Dyson on the 13th of January 2009 before the Roma Magistrates Court.  A series of mentions are noted on the Court file as having occurred.  Significantly on the 2nd of April 2009, the matter had been set for hearing for two days in the future.  However, further and better particulars were ordered by the Magistrate in question against the police as a result of a letter that had been written on Mr Dyson's behalf, dated the 1st of April 2009.

On the 2nd of July 2009, the solicitors sought leave to withdraw and the matter again was mentioned on the 16th of July 2009 at which point directions were recorded which did not make their way to the file that is now before me.  As such, the Court is not informed as to what those directions were.  Suffice to say, the matter was adjourned at that point to the 27th of August 2009 for hearing for two days.

Between that date and the last mention of this matter, 25th of August 2009, before the Acting Retired Magistrate, the police on that date offered no evidence in respect of the relevant charge.  The Magistrate's notation, as it relates to the appearance on that day, shows Sergeant Elder for the prosecution and counsel for the defendant, by telephone link granted by leave.  Personal attendance of the defendant himself had been excused. 

For the purpose of the record noted on the Bench complaint sheet, the relevant Magistrate noted, "That the prosecution offered no evidence.  The charge is struck out, the defendant is discharged.  I hear an application for costs from the defence".  He then made a series of orders to allow the prosecution to respond by means of written submissions to be filed in the Court on or before the 10th of November 2009 in respect of the oral application for costs that had been made by the defence. 

He also made a further order that any response from the defence to be similarly filed on or before the 17th of November 2009.  The Magistrate then ordered a transcript of the proceedings to issue and be placed on the file for the parties.  He also indicated he wanted to deliver his decision before the 30th of November 2009 and that his decision with reasons would be delivered in writing by the Registrar and then he adjourned the matter to the Registry.

The last notation on the file then indicates that on the 27th of November 2009, the Magistrate made the following notation - "Having considered the oral submissions of the applicant on the 25th of August 2009, a further written submission from that party filed 17th November 2009, and the written submission from the respondent, dated the 11th of the eleventh '09", he was not inclined to grant the application.  That application of course, was the one for costs and the order he wrote was, "Application is dismissed".  He then said he would give detailed reasons as per the file.  The Magistrate  actually provided a written decision for his reasons for the decision, 27th November 2009, three pages in total.

It is against that decision that the appellant now brings this appeal before this Court pursuant to Section 222 of the Justices Act.  The appellant appeals, in other words, against the Magistrate's order not to make an order as to costs in favour of Mr Dyson.

I have the written submissions that have been provided in respect of this appeal before me, both by the prosecution and on behalf of the appellant.  Hereinafter I am going to refer to the appellant as Mr Dyson and the respondent as the Queensland Police Service, so that it can be more readily understood.  They have been marked for the purpose of this proceedings, as on the Magistrate's file, as 5 and 6 respectively.

In essence, a preliminary point for determination before this Court is what could be aptly described as the Section 159 of the Justices Act point, and the application of the decision of Bell against Carter 1992 QCA 245.

It is the Queensland Police Service's submission that the striking out of the complaint on the 25th of August 2009 by the relevant Magistrate finalised the complaint.  As such the Queensland Police Service, argues that any subsequent decision by the Magistrate on the 27th of November 2009, namely not to award costs, was not, strictly speaking, an order on a "complaint".  As such, the Queensland Police Service argues that a Section 222 appeal therefore does not lie.

In reliance of that point, together with a further argument that the Queensland Police Service relies on, it refers to the reliance made by the Magistrate and his application of Bell against Carter as the basis for concluding that, upon his striking out and discharging the defendant, in respect of the charge, the Court, namely the Magistrates Court, had divested itself of any power to make any order as to costs.  That is to say the Magistrate believed he was, at that time, functus officio.

The Queensland Police Service maintains that the stance taken by the Magistrate was indeed correct, particularly if one has reference to the decision of Bell against Carter and, in particular, to the provisions of Section 159 of the Justices Act.  159 of the Justices Act allows any sum allowed for costs to be specified in the conviction or order.  It says, "the sum so allowed for costs shall in all cases be specified in the conviction or order or order of dismissal or order striking out a complaint for want of jurisdiction."

If that argument is to be accepted and Bell and Carter is binding upon the appeal here, it would arguably mean that there is no basis then for an appeal to be brought pursuance to 222 of the Justices Act before this Court which provides that a person who feels aggrieved as a complainant, defendant or otherwise, by an order made by a justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within one month after the date of the order to the District Court.

This same issue has already been previously raised and argued unsuccessfully by the Queensland Police Service on a previous occasion, in particular, in the appeal of Gibson against Canniffe (2008) QDC 319.  A helpful summary of the point in question has been discussed in full and complete form by His Honour Acting, as he then was, Judge Devereaux, starting at and commencing paragraph [75] and thereafter.  A case that involved facts not necessarily the same, but not that dissimilar to the case here. 

So that it can be understood, in that case the respondent defendant had executed a deed which had precluded him from seeking costs upon the dismissal of charges he faced.  He still nevertheless sought costs in the Magistrates Court.  The Magistrate dismissed the charge so endorsing the Bench charge sheet.  He then adjourned the question of costs, while the quantum of it, it seems, at a later date, at which time he fixed costs and ordered the appellant to pay them. 

In the joint judgment of the Court, the Court referred to the Justices Act 159 and held that whether the Magistrate made an order for costs leaving quantum to be fixed at a later date, or made no order for costs at all, notwithstanding any intimation of his intention to do so, both actions were beyond power.

The Court stated if an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the Court is in a position to make its final determination on the question of costs.

The facts as they have arose here are as follows in this case.  As I have already indicated, already this matter had been through a series of mentions, which I won't repeat, before the Roma Magistrates Court at which time, on one occasion, further and better particulars had been ordered.  On another occasion, directions had been recorded but not placed with the file in transcribed form on another occasion.  On other occasions, there were simply mentions of the matter.

As I have already indicated, on the 25th of August 2009, significantly, the prosecution offered no evidence and the complaint was struck out and the defendant was discharged.  An application for costs was made orally at that time by Counsel by telephone link, which was supplemented by, which is on the lower court file, a written quantum schedule in regards to the amount of costs sought on behalf of the defendant, Mr Dyson.  The Court was also provided with a case of Power against Lewis, a decision of the District Court by His Honour Judge Samios (2007) QDC 188. 

A reading of the transcript of the proceedings before a Magistrate in this Court on the 25th of August 2009, indicates that Sergeant Herman, who was by phone link up also appearing on the mention before the Magistrate, was having difficulty hearing due to technical problems, the costs application that was orally being made by phone. 

It is also clear that the Magistrate himself felt that he was under pressure with having had the application made to him on that day.  It is also clear that an application was made by the prosecution to the Magistrate with respect to requesting that submissions be allowed to be placed by them at another time.  As a consequence of that request, His Honour, as he stated, to be fair, made directions relating to written submissions to be provided by both the Queensland Police Service, as well as a reply to those submissions if required by the defendant himself.

Written submissions were indeed filed by the prosecution which were to be placed before the Court on or before the 10th of November 2009.  That direction was not complied with by the prosecution, who indeed did it one day late.  Written submissions were filed on behalf of Mr Dyson, as ordered by the Court, by the 17th of November 2009.

The Magistrate, on the 27th of November 2009, gave written reasons for his decision to dismiss the application for costs.

It is necessary to look at the written submissions that had been filed on behalf of Mr Dyson as ordered by the Court by the 17th of November 2009.  Those submissions indicated two arguments on behalf of the defendant. 

The first one was that because the prosecution had filed its outline of argument outside the time required, that is one day late, it was contrary to the direction of the Court and, as a result, it was assumed that the application for costs therefore was unopposed by the Queensland Police Service.  It was submitted in the outline of argument on behalf of the defendant, as there was no opposition to the application for costs, it was submitted the costs be awarded as sought in the schedule that had been provided earlier.

Alternatively, the other argument placed forward for the Court's consideration was if the Court was to allow the prosecution to act contrary to its direction, that is to file its outline of submissions relating to any costs argument out of time, it was requested and stated that the defendant reserved his right to make oral and/or written submissions in response to the outline filed.

That request was not granted by the Magistrate who unequivocally states in his decision that he rejected it.  The  request made indeed, it is clear, from the decision of the Magistrate, was that he was not intending to favour the application for costs with any further reasons for his decision other than those that he gave on the 27th of November 2009, that he accepted the submissions that were before him from the Queensland Police Service which had been filed one day out of time, and that the request to make further written outlines in response, as stated in the request by Counsel for Mr Dyson, was rejected unequivocally.

He considered that it was bold in the extreme as well as insulting, and that indeed Mr Dyson had wasted valuable Court time as well as time and resources already of the Queensland Police Service.  As a consequence, he dismissed the application.

The case originally referred to of Bell and Carter was a similar situation where a Magistrate had acquitted a defendant on a date and had indicated that submissions on cost were to be filed at a later time.  She said indeed initially that she didn't want to hear an argument on costs and she was going to adjourn it and she would hear it later. 

After considering written submissions, she later commented that she had made an order on the day earlier on which she acquitted the defendant of the charge and she'd formally entered an order of dismissal.  She then noted from the Court file that the certificate of order had issued.  She was of the view, not unlike what the Magistrate here considered, that as a result of her making the dismissal and a certificate being issued in accordance with the file, that the formal dismissal had been made and so, on the authority of Bell Carter, she felt unable to make an order for costs subsequently.

A similar situation clearly arises here.

As evidenced by His Honour Judge Devereaux, I have formed the same view as he did.  I have concluded that Bell and Carter does not determine the result in this case because here it cannot be said as it was in that case, that there can be no doubt that the learned Magistrate had dismissed the charge, which was the case in Bell against Carter.  On the contrary, the Magistrate's endorsement in respect of this matter, as I have indicated already, merely suggests that the prosecution had offered no evidence, the charge is struck out and the defendant is discharged.  Clearly an application for costs from the defence was a live issue and that it was only adjourned at the request of the prosecution seeking further time to be heard, as a result of a technical hitch that had arisen because the prosecution could not be heard and, indeed, because the Magistrate had already felt aggrieved by having so many matters to deal with, that he also considered he was not able to adequately deal with the application for costs on that day.

On any view of that and those circumstances, I consider that Bell and Carter can be distinguished.  The endorsements on the file by the Magistrate, while plainly evidencing that the prosecution had offered no evidence and the charge had been struck out and the defendant had been discharged, did not, in my mind, purport to be a formal order of dismissal. 

In my view, a better view is that while the Court was entertaining an application for costs, which it was here, the formal "dismissal" was thereby deferred and the order was yet imperfect and as such I do not consider therefore that the application of Bell and Carter is applicable here.  Nor do I then consider that Section 159 needs to be strictly adhered to in the light of the fact that there had not been a formal order of dismissal as such for the purpose of that Section because of the reasons I have already stated.

It follows from that a determination by me that there is, in my mind, power for this Court to hear an appeal relating to a order by a Magistrate not to make an order as to costs.  In other words, by dismissing an application that had been made for costs.

If there is any doubt about that, I take comfort in the decision of Coulter against Ryan, particularly the comments of Justice Holmes (2006) QCA 567.  Admittedly the matter before the Court of Appeal dealt with an interlocutory order relating to an adjournment where a Magistrate had refused to award costs upon an adjournment. 

However, the comments in my mind, notwithstanding that it was relating to an appeal against a costs order made in connection with an interlocutory order, which is not the case here, is of some significance and guidance to me.  Particularly at paragraphs [8] through to [11] respectively where Her Honour indicates that an order as to costs referrable to the determination of a complaint, one of which disposes of a complaint being one of the orders that can dispose of it, namely a costs order such as here, can fall within the relevant provisions of consideration of Section 222 and the wording as it appears there.

As such, I consider  I do have jurisdiction to hear the argument as it relates to the appeal before this Court.  An appeal before this Court is by re-hearing on the record.  If further evidence is to be received, it is to be by leave and in accordance with strict requirements.  No such application was made before me even though I invited it. 

As such, this Court makes a determination on the record before it today.

The decision to award costs is a discretionary one.  The principles in that regard were adequately set out in Murray against Radford, set out in the decision of Power against Lewis (2007) QDC 188 at paragraph 11.  The relevant provisions in respect of ordering costs before the Magistrate were 158 and 158A of the Justices Act.  And similarly, 158A plainly says that there is a limitation on the discretion, which 158 permits to order costs against a complainant in this case where a police officer is involved, as is the case here.

An appeal against the exercise of a discretion, as is relevant in relation to section 158A of the Justices Act that applies here, is to be determined by established principles as set out in House against the King (1936) 55 CLR 499.  I take judicial notice of those established principles, when I'm sitting in my appellant jurisdiction.

Referring to the Magistrate's decision in respect of consideration of 158A and the exercise of his discretion, can it be said that he has taken into account the factors there?  A fair reading of his decision suggests to me that he, by saying that he must take into account all matters prescribed in section 158A, indicates that he was of the view they were the only matters he could take into account.  158A clearly says that those matters must be taken into account as prescribed from A to I in subsection 2, but they are not the only factors that must be taken into account.  They are simply included by way of example.  There is an obligation in the exercise of the discretion by any Magistrate pursuant to section 158A that they must take into account all relevant circumstances.

There are reasons in my mind to consider that the exercise of the Magistrate's discretion miscarried in that regard.  He did not, for example, take into account that the prosecution did not proceed with the charge, notwithstanding many mentions etcetera.  There were no reasons profited by the Prosecutor, neither in their written submissions to the Magistrate or indeed orally, even at the beginning prior to the striking out of the charge on the 25th of August 2009.

Nor was there any consideration, in my mind, given to the money that had been expended prior to the withdrawal of that charge by the Queensland Police Service, and any effect that the charge may well have had upon Mr Dyson's employment as a salesman who travelled by car.  Those factors were considered irrelevant in the matter of Power against Lewis. 

There was also evidence clearly on the file of which there was no reference to by the Magistrate in any detail, which contained a schedule of costs from an expert Wolfgang Garwoli.  Bill, who had been engaged for the purpose of the hearing, which was subsequently withdrawn. 

Nor in my mind did he appraise himself of any of the matters set out in section 158A.  Whether, for example, the proceeding had been bought and continued in good faith, whether there was a failure to take appropriate steps to investigate a matter coming to or continuing the proceeding.  Whether the investigation into the offence had been even conducted in an appropriate way.  Indeed he didn't appraise himself, in my mind, whether the order of dismissal was made on technical grounds or simply that there was insufficient evidence to convict or even make an order against the defendant.  It's certainly clear on the reasons that the Magistrate did not give, in my mind, sufficient weight to those relevant considerations.

These were all factors which were relevant, circumstances which he was required to take into account when exercising his discretion, if it could be said that he did, under section 158A as asserted by the Queensland Police Service now.  As a result of those I am satisfied that his discretion did miscarry when he exercised it pursuant to his consideration of section 158A.

I also consider further, even in the event that I'm wrong in that regard, there has been a denial of natural justice in any event to Mr Dyson.  This arises on several bases.  The first of which is that his Honour failed to allow a reply to be given by defence to the submissions that had been made by the prosecution at their request in writing. 

Whilst the Magistrate felt that he should play fair for the Queensland Police Service, he did not extend that same latitude to the defence, who had in their outline of submissions in reply filed in time on the 17th of November 2009, a request in the alternative that he be allowed to file further outline of submissions to the police argument put forward.

Curiously, it has to be said by this Court that even though Counsel for Mr Dyson might well have thought that that was an appropriate tactical course that he should have taken, namely to argue initially that because the police had filed their submissions out of time it followed that it was unopposed, a clear reading of the outline of submissions placed in by the Queensland Police Service, even if it was a day late, clearly showed that they were opposing any application for costs.

A better view and course would have been for Counsel to have addressed as his alternative a proper reply in respect of all of the matters that had been wanting to be canvassed by him in respect of any application for costs, in addition to those which he had already raised in respect of the matters orally before the Magistrate earlier on the 25th of August.

The Magistrate's failure, in my mind, to deny, even if Counsel could have taken the better course, as I've just mentioned, to allow a further reply to be given before the Magistrate made his decision on his application for costs in accordance with the directions he had given, denied, in my mind, Mr Dyson a proper right to place further material.

Particularly, in these circumstances where the decision of Bell and Carter and the application of section 159 of the Justices Act was neither raised by the prosecution before the Magistrate or by the Magistrate himself in argument of which Counsel was present for the defence by telephone on the 25th of August 2009.  Both the Queensland Police Service and the Magistrate only subsequently raised those matters as an issue after that hearing had taken place.

Clearly, no invitation was made by the Magistrate at any stage to allow Mr Dyson's counsel to answer the argument that had been raised subsequently by the Queensland Police Service and, indeed, relied upon by the Magistrate himself as a basis for dismissing the application for costs that had been made by Mr Dyson.

Indeed, in his decision, the Magistrate, at page 3, refers in detail how he applied Bell and Carter, and indeed referred to another decision of his own.  He also referred to a decision of Wylie QC DCJ Roma Appeal No 1 of 1999, which apparently had been dismissed in respect of his original decision relating to Hall against AFRO Ostrich Farms Ltd on the 22nd of the 3rd, 1999.  Those reasons and the reference to the appeal to Wylie DCJ are - are of little value at this stage.  It is unknown what and why the appeal before Judge Wylie was even dismissed. 

I have been unable to obtain a copy of the decision.  It was not offered to either counsel for their consideration to distinguish or even consider its applicability and, as such, again, I consider it was a denial to Mr Dyson not to have had an opportunity afforded to him prior to the dismissal of the costs order by Magistrate Rose on the 27th of November 2009 to not let the party be heard in respect of that issue, the application of those matters, and particularly the applicability, if at all, of Bell against Carter and section 159 considerations.

For that reason, there has been two bases in my mind of a denial of natural justice which, in my mind, should allow the appeal to succeed.

The four grounds of appeal have been addressed by the Queensland Police Service.  In respect of ground 1 of the appeal, counsel for the Queensland Police Service submitted that the Magistrate did take into account all relevant matters in respect of it, because he would've had to have read the entire file.

While it may be the case that the Magistrate may well have read it, it's unclear what weight, if any, he gave to some of the material that were available on the file to him, including the quantum of schedule of costs, letters that had been written that were relating to the contest between the parties, and the like.

It is also significant that even though he mentions that directions for particulars had been complied with by the Police Service, he makes no further reference to those particulars, the nature of them, relating to the contest between the parties at all in his reasons and, indeed, says he doesn't need to give any further full reasons, because he believed he had no power at all to avoid costs in any event, which, as I've indicated, in my mind, was incorrect.

Ground 2 related that he had restricted himself to the matters in section 158A and, as I've already indicated, I'm satisfied he did not take into account all relevant considerations.

Ground 3 is already been dealt with in respect to the denial, as I see it, of natural justice in not allowing the defence's request to place in a further reply, and not being able to be even heard on the issues relating to Bell and Carter's applicability, section 159, or indeed the application of the references to the authorities of which his Magistrate relied in the context of his decision relating to the Wylie appeal.

Ground 4 relates to, in my mind, significantly, again, the fact that there was no reference by the Magistrate relating to technical problems.  The fact that he made a statement in his decision that if counsel had given him some notice of an application for costs being made on the day in question there might well have been a "different outcome"; the fact that the Magistrate acknowledged that the application for costs could only be made once, but the prosecution had offered no evidence; and also the fact that it was the prosecution who had made the request for the costs application to be deferred in order that they could place something in writing, or be heard literally, due to the technical problems being experienced.

In those circumstances, as I've already indicated, Bell and Carter can be distinguished - as in Bell and Carter it was clear, that the case had been dismissed.  There was no doubt, as the Court acknowledged there, that it had on the particular date because of the notation, and that it was the defendant who'd made the request for the adjournment in respect of an assessment of costs to be argued later or the quantum of it, unlike here where it's the prosecution itself who have asked for that.

It is for those reasons, collectively and individually, that I consider the appeal should be allowed.  That does not mean, however, that it follows that this Court is in a position now to determine what costs, if any, should be ordered.  There is insufficient evidence on the file for that to take place.  It is not the case, where all of the evidence that needs to be addressed, particularly all relevant matters including 158A of the Justices Act, by either party have been addressed in any evidentiary form as it currently stands.  As such, I am unable to sit in the position of the Magistrate and make a determination. 

It is for those reasons that I consider the only order, and the only appropriate order in the circumstances, is:

To allow the appeal;

That the learned Magistrate's order of dismissal to be set aside in so far as it included any refusal to make a costs order;

The complaint is remitted to the Magistrate's Court before a different Magistrate for final disposition, including further hearing and determination based on evidence to be adduced in proper form, in accordance with these reasons, as to the question of whether or not costs should be awarded to the defendant, Mr Dyson, and, if so, in what amount.

Those shall be my three orders.  I make no order as to costs at this stage, and those are my reasons for my decision.  They shall be published in transcript form once they are transcribed by the State Reporting Bureau, which takes several days, or a little more, and the parties will receive a copy in due course.

In the interim, this matter can be mentioned as early as next week in the Roma Magistrate's Court, if the parties choose to have the matter disposed of in a timely way.