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- Unreported Judgment
Oates v Commissioner of Police QDC 333
DISTRICT COURT OF QUEENSLAND
Oates v Commissioner of Police  QDC 333
COMMISSIONER OF POLICE
Magistrates Court at Maroochydore
27 November 2015 – ex tempore
27 November 2015
D.T Locantro of Locantro Lawyers for the appellant
D.L. Brown of the Public Safety Business Agency on behalf of the Queensland Police Service for the respondent
- I am concerned here with an appeal pursuant to section 222 of the Justices Act 1886. By way of background, the appellant was charged with one count of assault occasioning bodily harm and one count of dangerous operation of a motor vehicle. She was at the relevant time a passenger in a taxi. Both counts were dismissed by the court below, essentially, because it was found that the defences of provocation and necessary emergency applied.
- A costs order was sought by the applicant pursuant to section 158 of the Justices Act 1886. That matter was heard by the acting Magistrate in the Magistrates Court at Maroochydore on 23 July 2015. After hearing submissions from the appellant’s solicitor and the, I assume, police prosecutor, the acting Magistrate dismissed the application. The appeal before me is concerned with that decision.
- Pursuant to section 223 of the Justices Act, the appeal is by way of re-hearing on the original evidence unless the court grants leave to adduce fresh or additional evidence. There was no application to that effect and so the matter was dealt with on the material below. To refuse an application for costs clearly requires exercise of a discretion. Section 158, subsection (1) of the Justices Act provides:
“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.”
- Subsequent to that provision, at or about 1990, section 158A was introduced. It relevantly provides:
“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.”
- Subsection (2) provides:
“In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances including, for example –”
- And I will end the quote there. Thereafter, subsection (2) identifies a number of matters which are examples of what are relevant circumstances and, by way of some examples, they include whether the proceeding was brought and continued in good faith, whether there was a failure to take appropriate steps to investigate a matter, and whether the investigation of the offence was conducted in an appropriate way, whether the defendant conducted the defence in a way which prolonged the proceeding unreasonably, and whether the defendant was acquitted on one charge but convicted on another. Clearly, the list is not an exhaustive one.
- In this regard, before going further, it appeared by reference to the transcript that the acting Magistrate made a finding that the defendant in some way had behaved in a way which prolonged the proceeding. However, it was agreed by everyone at the bar table that that was simply a misdescription and probably as a consequence of a typographical error. In Coal and Allied Operations Pty Ltd v Australian Industrial RelationsCommission and Ors (2000) 203 CLR 194, Chief Justice Gleeson, with Justices Gaudron and Hayne agreeing, said, at paragraph 21, and I quote:
“Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellant tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King.”
- That, of course, is a reference to the well-known decision of the House v The King  55 CLR 499, where Justices Dixon, Evatt and McTiernan relevantly 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 the exercising of 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.”
- The quote continues:
“It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
- The grounds of the appeal are:
“(1) the magistrate erred in the exercise of his discretion pursuant to section 158 of the Justices Act 1886 in that he decided that this case was not a proper one for costs against the complainant; (2) the magistrate failed to properly consider and apply the examples contained in section 158A of the Act; (3) the magistrate failed to properly consider and apply the provisions in section 158B of the Act; (4) in the case submissions were made that the defendant states should have been accepted and an award for costs granted. Those submissions included the fact that the ultimate reason for the dismissal of the charge was known to the complainant before the defendant was charged. The main witness for the complainant was a taxi driver that admitted in his statement to an unlawful act, being the deprivation of liberty of the defendant who was a passenger in the taxi. That unlawful act was the trigger for the actions of the defendant in having been provoked; (5) the defendant also relies on other submissions made in the cost application including specific reference to each of the provisions of section 158A and the overriding and crippling nature of the defendant bearing the costs of defending herself.”
- As to ground 3, I must say, the relevance of section 158B escapes me and was not made clear during argument. As to ground 5, it is not a ground of appeal at all. As to ground 4, it strikes me as being more of a submission rather than a ground of appeal. In reality, the grounds of appeal are those in 1 and 2. However, during the hearing of the appeal, the solicitor for the appellant also made a submission to the effect that there was an error in that the acting Magistrate had failed to give sufficient reasons identifying just how it was the acting Magistrate came to the decision that he did. After hearing submissions on costs, the acting Magistrate made his ruling in the following terms, and I quote:
“Section 158 of the Justices Act provides that costs on dismissal of a complaint including arising and consequent of the hearing determination of a summary charge, including indictable offence. Unlike civil proceedings, costs do not follow the event. The question is whether it is proper that the order for costs should be made. I’ve considered all relevant circumstances, including the submissions made by both the defence and the prosecution, and the following circumstances as extracted from the provision of section 158A(2), that is, bringing in continuing – bringing and continuation of proceedings in good faith and I’m not satisfied that the proceedings were not brought or continued in good faith and it was reasonable to proceed with the charges. I find that there is an absence of any failure to take relevant appropriate steps to investigate the matter. I consider the fact that the dismissal of the offence were not based on there being insufficient evidence to convict and, instead, the charges were dismissed because I was not satisfied beyond reasonable doubt. I have also considered there is evidence of both charges, the assault and the dangerous operation charge.”
- Of course, the threshold point is whether there is any error that would warrant this court intervening and re-hearing the matter. In my view, there is. The ruling provides no true insight as to how the acting Magistrate reached the decision that he did. By way of example, whilst stating that all relevant circumstances had been considered, no circumstances were identified, let alone what the consideration of all those circumstances were.
- It is stated that the acting Magistrate was satisfied that the prosecution was brought and continued in good faith, that it was reasonable for the prosecution to proceed with the charges and that the prosecution had taken all appropriate steps to investigate the matter, but there is no explanation as to how those conclusions were reached. It also appears tolerably clear to me that the acting Magistrate considered it relevant that the appellant succeeded because of the operation of well-established defences at law. In that regard, I will repeat again what the acting Magistrate said:
“I consider the fact that the dismissal of the offences were not based on their being insufficient evidence to convict and, instead, the charges were dismissed because I was not satisfied beyond a reasonable doubt.”
- With all due respect, that assertion appears to me to be somewhat nonsensical. The acquittal necessarily means that one of the essential elements of the offences could not be established beyond reasonable doubt because the appellant’s actions were justified or excused under the defences of provocation and extraordinary emergency. There are sufficient grounds to re-hear the proceeding. The first, that no real reasons have been provided which give any meaningful insight as to how the acting Magistrate in fact reached the conclusions that he did. It also seems clear to me that the fact that the appellant was acquitted because of the operation of specific defences operated in some way either against the interests of the appellant or in the favour of the police. Either way it reveals an error, in my view, in the reasoning process.
- The case against the appellant relied on the evidence of the complainant being accepted. I have not been provided with a transcript of the proceedings below, but the acting Magistrate described the case against the defendant in the following terms. And this can be found at page 2, between lines 26 and 47:
“The allegation against the defendant is broadly summarising as being that while she was travelling in a taxi being driven by the complainant, she assaulted him through the acts of biting and scratching and that she also, whilst the vehicle was being driven by the taxi driver, dangerously interfered with the operation of that vehicle by grabbing the taxi’s steering wheel in an attempt to change the direction of the vehicle. The matters not in dispute are the time, date and place of the alleged offence. It is also not in dispute that the defendant grabbed at the steering wheel of the taxi whilst the taxi driver was driving that vehicle.
What is in dispute is whether the defendant bit and/or scratched the complainant taxi driver and whether those assaults were authorised or justified or excused by law as defined in section 246(1) of the Code and whether a defence has been raised on the evidence. Also in dispute is whether there is the defence raised in the offence of dangerous operation of a motor vehicle. Answering the question “did the defendant assault the complainant taxi driver”, the evidence of the complainant taxi driver was that the defendant grabbed at him in the region of his left cheek and left side of his neck. He gave further evidence that the defendant, whilst she was grabbing at [indistinct] grabbed his hand and bit it. Exhibit 2 shows photographs of the complainant’s injuries.”
- That version is only consistent with the complainant being gratuitously assaulted by the appellant. At page 3, commencing at line 43 through to line 47 and then continuing over the page, the acting Magistrate said:
“Was there a wrongful act? Did the complainant taxi driver lock the vehicle doors to prevent the defendant exiting the vehicle? And if he did, was that a wrongful act? The evidence before the court on this point included the complainant in cross-examination stating that the vehicle he was driving did have central locking and that he could control the locks and the windows of the car. His evidence, though, was that he did not lock the car.”
- Dealing further with that matter at page 4, between lines 15 and 22, the acting Magistrate said:
“On this point, with the advantage of observing the CCTV footage, I prefer the evidence of the defendant and I find that the complainant taxi driver had locked the doors of the taxi cab and prevented the defendant from leaving the taxi cab. The evidence of the taxi driver was that he was taking the defendant to the police station. However, there is no evidence before the court of the lawfulness of detaining a passenger against their will in a locked taxi cab, and I find that this act was indeed unlawful and the catalyst for the events that transpired. That finding negates the section 268(3) provision of the Code where ‘a lawful act is not provocation to any person for an assault’.”
- And then continuing at about line 39, at the bottom of page 4 and then over to page 5, the acting Magistrate went on to say:
“I’m satisfied that the act of locking the car doors late at night is of such a nature that if done to an ordinary person, that is, a person within a range of limits or self-control, travelling alone, would be likely to deprive that person of the power of self-control and induce the person to assault the person who was responsible for the wrongful act and attempt to exit the vehicle. The defendant gave evidence that she was fearful and scared that the driver was going to harm her and that she might end up in a bush dead. Her evidence was that she panicked and started yelling to be let out of the cab and that still the taxi driver continued driving. Her evidence was that she was desperate to get out of the cab. Her actions depicted on the CCTV footage, exhibit 4, were consistent with her desperation to get out of the vehicle. There is no evidence before the court that the assault was for any other purpose than to get out of the taxi cab. Indeed, once the taxi cab finally stopped, she ceases assaulting the complainant taxi driver and makes her way to the nearby petrol station.”
- The acting Magistrate then went on, at page 6, at about line 3 to 5, to say the following:
“That doubt arises due to my finding that the taxi driver, Mr Finn, had locked the defendant in the taxi and if not for that restraining act, I doubt we would be here today.”
- The reference to Mr Finn should, of course, be a reference to a Mr Singh. So it was quite clear that, as far as the acting Magistrate was concerned, that, but for the actions of the complainant taxi driver, the matter would probably not have ended up in court at all. What seems clear is that the CCTV footage taken from inside the taxi cab, that is, exhibit 4, not only corroborated the appellant’s contemporaneous version given to the police and recorded in exhibit 8, but also, by necessity, was in a material way inconsistent with the version given by the complainant.
- In the written submissions of the respondent, a number of matters were advanced in paragraphs 19 to 21 and 28 to 29. I will not quote them at this stage, but I may when I finally publish my reasons. I am, however, unable to accept the submissions made there. In this context, though, I acknowledge that section 158A was introduced after the High Court decision of Latoudis v Casey and was, obviously, introduced in order to temper the discretion available under section 158. That said, however, in the Court of Appeal decision of Smith v Ash  QCA 112, Justice of Appeal Chesterman, after referring to the well-known passage of Justice McHugh in Latoudis v Casey(1990) 170 CLR 534 at 566-568 said:
“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 had been incurred in defending the prosecution (Latoudis at 569). The same observation applies I apprehend to successful prosecutors.”
- It was accepted by those at the bar table that those statements by his Honour were indeed relevant in this appeal but, of course, the full operation, effect and intention of section 158A has to be taken into account. Nonetheless, that does not detract from the general proposition that, when considering section 158A, those provisions have to be considered fairly and in a very balanced way before denying a successful defendant his or her costs.
- In my view, the acting Magistrate made a number of errors which impermissibly influenced his judgment. The acting Magistrate erred, in my view, by letting the fact that the appellant succeeded through the operation of the defences of provocation and necessary emergency influence his decision. As I have already said, it seems clear to me that that the appellant succeeded on the basis of those defences either worked against her or in favour of the police. Either way, that involves an error in the reasoning. Further, it is adequately clear that the CCTV footage made it clear, as the acting Magistrate found, that not only had the complainant locked the doors despite his assertions to the contrary, but also that the appellant only did what she did after trying to exit the taxi. As the acting Magistrate observed, the appellant had made one attempt to exit the taxi before there was any physical contact at all and made a further attempt to exit the taxi before the appellant made physical contact with the complainant for a second time. Also, as the footage made clear and as the acting Magistrate found, at the time the appellant was in a desperate and panicked state.
- All of that material is entirely at odds with the version given by the complainant. Indeed, in this regard, written submissions were made on behalf of the appellant some six months before trial. They expressly referred the investigating officers to the existence of that footage and, indeed, identified by reference to specific timeframes a number of matters which the lawyers for the appellant said showed that the appellant was acting in self-defence. Also, it revealed that the appellant was in a desperate state or a distressed state and was trying to escape from the taxi. It was also asserted that the complainant had committed an act of depravation of liberty and false imprisonment. It was pointed out that the CCTV footage, if looked at, would show that her intentions were solely directed to freeing herself from the cab. The submissions concluded in the following terms:
“It is clear that his inconsistent version of events has not been the subject of sufficient scrutiny.”
- The response from the senior prosecutor was to this effect:
“Dear colleague, I have considered your representations of the 12 December 2014. One thing is clear from the police observations is that the defendant is grossly intoxicated. As a result, I do not accept as accurate any of her assertions. Your conferencing request is rejected and the matter will remain before the Court for determination.”
- It seems sufficiently clear by reference to that response that the reason why the submissions made on the appellant’s behalf were rejected had nothing to do with the CCTV footage. The prime motivating factor to continue the prosecution was because the appellant appeared at the time to be grossly intoxicated. It is difficult to tell whether the police officers had bothered to view the CCTV footage before reaching that conclusion. But in any event, it seems tolerably clear to me from reference to the acting Magistrate’s observations that if they had, they would have clearly seen that there was at least prima facie a version of events inconsistent with that of the complainant.
- The CCTV footage was clearly compelling evidence for the acting Magistrate and the authorities ought to have been, at the very least, put on notice about the real prospect of the case being dismissed. In my view, whilst I do not find that the prosecution proceeded involved bad faith. It seems clear that there had been a failure to properly investigate the matter and a failure to take appropriate steps to investigate a matter which was expressly brought to the authorities’ knowledge and attention. On balance, I do not consider that the investigation was conducted in an appropriate way. These conclusions bring into operation section 158A, subsection (2)(b) and (c). For the reasons given, the appeal is allowed.
- The appeal is allowed. And I will further order that the respondent is to pay the appellant’s costs of the hearing below. And in the event that the parties are unable to agree as to the quantum of those costs, I will hear from the parties in writing. I will further order that in the event that there is no agreement, the appellant is to serve and file their written submissions on costs by 3 December 2015. The respondent is to file and serve their written submissions by 9 December 2015, and the appellant is to file and serve submissions in reply, if any, by 14 December 2015.
- Published Case Name:
Oates v Commissioner of Police
- Shortened Case Name:
Oates v Commissioner of Police
 QDC 333
27 Nov 2015