Dean v Turner[2010] QDC 489

DISTRICT COURT OF QUEENSLAND

1. [1]
   The appellant was charged that on 25 February 2008 at Caboolture he unlawfully entered the yard of the dwelling situated at 10 Tanunda Court.

2. [2]
   The appellant pleaded not guilty to the charge and after a hearing on 19 October 2009 the learned magistrate found him not guilty of the charge and dismissed the charge against him.

3. [3]
   The appellant sought an order from the learned magistrate that the respondent (the police officer) who brought the charge against him pay the appellant’s costs.

4. [4]
   The learned magistrate refused to order the appellant’s costs be paid by the respondent.

5. [5]
   This is an appeal against the learned magistrate’s refusal to order the respondent to pay the appellant’s costs.

6. [6]
   The grounds of the appeal are:

1. That the learned magistrate erred in exercising his discretion that there be no order as to costs;

2. In exercising his discretion the learned magistrate placed too much weight on the consideration contained in s 158A(2)(f)(ii), (Justices Act 1886) (“the Act”)  namely being that the defendant had not given notice of a witness on whose evidence he would rely.

3. In exercising his discretion the learned magistrate gave insufficient weight to the remaining considerations in s 158A(2).

7. [7]
   The background to the charge is that the appellant’s family and the family living across the road in Tanunda Court, the Hennesseys, were not on good terms. 

8. [8]
   On 28 February 2008 one of the appellant’s children and one of the Hennessey’s children were having an argument. The parents of the Hennessey child, Jane and Paul Hennessey, came out of their house during the confrontation. Jane Hennessey confronted Michelle Dean, the appellant’s child. The appellant heard the commotion and came across the road. Whether the appellant entered the Hennessey’s property was the issue at the hearing before the learned magistrate.

9. [9]
   Mr and Mrs Hennessey said the appellant entered the property. The appellant and his partner denied this allegation. However a neighbour Cheryl Davis who was called by the defence stated that the appellant came out and stood on the public side of the fence.

10. [10]
    Although a police officer was called for the prosecution he did not address these issues as he was not present when the incident took place. However he said that he had spoken to the appellant on the day in question. The appellant made no admissions. He said he called at a later date on 25 June 2008 in relation to another matter and arrested the appellant on this charge.

11. [11]
    Those were the witnesses called on the hearing before the learned magistrate.

12. [12]
    As was recognized by the learned magistrate in his reasons the critical issue was whether the appellant unlawfully entered the yard of the dwelling.

13. [13]
    Regarding his assessment of the witnesses the learned magistrate said:

“Based on my assessment that all witnesses have given evidence in these proceedings today I am persuaded that, initially I was of the view that Jane Hennessey gave evidence that appeared to be forthright, consistent and unequivocal.  I thought she gave evidence in a robust manner.

Paul Hennessey’s evidence was not quite as robust as that of Jane Hennessey.  However I have found his evidence appeared to be given in a frank, candid and believable way.

Dallas Turner, the police officer who gave evidence, I found gave evidence in a professionally disinterested way that was accurate and inherently probable.

For the defence; Mr Dean gave evidence that was not fanciful or improbable.  I was of the view that he answered questions in a measured and logical way.  His answers appear to be credible and appear to be frank.  His evidence in my opinion was not in any way diminished by cross-examination.

Similarly, Ms Ashton’s evidence appeared to be given in a frank and candid way.  I was of the view that the cogency of or strength of her evidence was not diminished by any great extent by cross-examination.

Whilst somewhat more tentative and at times a little vague in the way that she gave evidence, I was of the view that Ms Davis’ evidence, in my opinion, whilst in some respects was inconsistent with other defence witnesses concerning the positioning of the parties in the yard at 10 Tanunda Court, and what was said by the parties on the essential issues in dispute in these proceedings, I found that she was generally categorical and definite.”

14. [14]
    A little later the learned magistrate said:

“On my assessment of the witnesses who gave evidence in these proceedings here today, on the whole of the evidence, in my opinion, the witnesses for the defence were equally impressive, and in some instances slightly more impressive than the witnesses for the prosecution. 

Accordingly, I am therefore not prepared to prefer the prosecution version of the evidence over the defence version of the evidence to make findings of fact that would support the essential elements of the charge being proven beyond reasonable doubt.

It follows from what I have said upon a consideration of the whole of the evidence, I am not satisfied that the prosecution have proven all of the essential elements of the offence beyond reasonable doubt.”

15. [15]
    On the question of costs s 158 and s 158A(1) and 158A(2) of the Justice Act 1886 provide:-

158 Costs on dismissal

3. (1)
   When justices instead of convicting or making an orderdismiss the complaint, they may by their order of dismissalorder 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 thecourt has not jurisdiction to hear and determine the court shallorder the complaint to be struck out for want of jurisdictionand may order that the complainant pay to the defendant suchcosts 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 acomplainant who is a police officer or public officer only ifthe justices are satisfied that it is proper that the order for costsshould 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—

3. (a)
   whether the proceeding was brought and continued ingood faith; and

3. (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 theproceeding; and

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

3. (d)
   whether the order of dismissal was made on technical grounds and not on a finding that there was insufficientevidence to convict or make an order against thedefendant; and

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

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

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

3. (ii)
   to produce evidence likely to exonerate the defendant;

and the explanation or evidence could have avoided a prosecution; and

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

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

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

16. [16]
    Regarding the question of costs the learned magistrate said that had Ms Davis’s statement been given to the prosecution, the prosecution may have reviewed their file as to whether or not they would have proceeded with this prosecution. Accordingly on the basis of s 158A(2)(f)(ii) of the Act as her statement had not been provided to the prosecution, he refused to make an order for costs in favour of the appellant.

17. [17]
    In Latoudis v Casey (1990) 170 CLR 534 Mason CJ said at p 534:

“If one thing is clear in the realm of cots, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party.  They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.  Cilli v. Abbott (1981) 53 F.L.R., at p. 111.  Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment.  But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor.  Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.”

18. [18]
    Recently in Smith v Ash (2010) QCA 112 Chesterman JA said at paragraph [100]:

“Though costs in summary criminal proceedings do not follow the event as they do in civil proceedings, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for payment of his costs because it is just and reasonable that the informant should reimburse him for his liability to pay costs which have been incurred in defending the prosecution; Latoudis at 569.”

19. [19]
    As this is an appeal against the exercise of a discretion, the principles in House v R (1936) 55 CLR 499 at 504-505 are relevant.  There the High Court said:-

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles.  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 fact, 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.”

20. [20]
    It is to be observed that the section of the Act relied upon by the learned magistrate requires the defendant to have been unreasonable “before a charge was laid”. Clearly that does not apply in the present case as there was no evidence before the learned magistrate when Ms Davis’ statement became available to the defence. Further that is not the end of the matter under s 158A(2) because that section requires the learned magistrate to take into account all relevant circumstances “including” those listed which includes sub-paragraph (f)(ii).

21. [21]
    Nevertheless even if the appellant had Ms Davis’ statement at some stage, in my opinion the learned magistrate erred in forming the opinion that the prosecution may well have reviewed its file as to whether or not they would have proceeded with the prosecution. That is because during closing submissions at the trial the respondent said of Ms Davis that she may have been favourable to the appellant’s family. Further, the learned magistrate was asked to find against the credibility and overall reliability of Ms Davis’ evidence.

22. [22]
    These are precisely the attitudes that could have been formed about Ms Davis’ evidence had her statement been provided at any stage to the prosecution. I do not think in light of those attitudes the learned magistrate could rightly say that the prosecution may have reviewed their file. In my view the magistrate could not give that possibility any weight in the circumstances.

23. [23]
    Therefore it falls to me to exercise the discretion afresh.

24. [24]
    In the respondent’s submissions at the trial it was argued the appellant conducted the defence in a way that unreasonably prolonged the proceedings. The prosecutor referred to s 158A(2)(h) of the Act. The respondent adopted this submission at a hearing before his Honour Judge Noud.

25. [25]
    In my opinion the evidence demonstrates that the summary trial was set for hearing on the first occasion the present solicitors for the appellant appeared. In my opinion the actions of the appellant were not unreasonable nor did he conduct the defence in a way that prolonged the proceedings.

26. [26]
    There are two matters that stand out in the appellant’s favour. One is that a routine canvassing of neighbours to the dispute would have led the police to Ms Davis. It was her evidence that was ultimately decisive. In addition the appellant could have been asked if there was any witness who could support his version of events and by 25 June 2008 when he was charged he may have been aware of Ms Davis. In these respects in my opinion there has been a failure to take appropriate steps in investigating the matter.

27. [27]
    In my opinion it is proper to make an order that the respondent pay the appellant’s costs.

28. [28]
    In the exercise of my discretion I order the respondent to pay the appellant’s costs below fixed in the sum of $1,500.

29. [29]
    I refuse the other items claimed for costs below because those appearances must have been tied up with other matters on the appellant’s behalf. That is I was told that from the moment the appellant’s present solicitors became involved in the matter on 18 February 2009 the matter was set down for trial. The other appearances must have been because of other matters.

30. [30]
    However with respect with to the costs of this appeal I order the respondent to pay the appellant’s costs of the appeal fixed in the sum of $1,800. I consider the appeal was complex and justifies the extra 20 per cent that can be allowed under the Schedule. I am not prepared to allow for a court attendance on 18 June 2010 because it appears from the file his Honour made no order as to costs.

31. [31]
    Therefore the appeal is allowed. I order the respondent to pay the appellant’s costs below in the sum of $1,500. I order the respondent to pay the appellant’s costs of the appeal in the sum of $1,800.