Harvey v Walker[2016] QDC 180

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mrs Walker and Mr Harvey are neighbours in Dalby. It seems to be an understatement to say that they do not get along, or even enjoy a benign disinterest in one another. In about November 2015, Mrs Walker brought a complaint against Mr Harvey, seeking an order under the Peace and Good Behaviour Act 1982. As is contemplated by s 4(3) of that Act, the matter was referred to mediation. An agreement was reached at mediation for the construction of a fairly significant fence between Mrs Walker’s and Mr Harvey’s properties, which it was hoped would end the conflict between them. The evidence before the Magistrate revealed that, by the time of the hearing, that fence had not yet been constructed. Consequently, Mrs Walker, in substance, renewed her application for an order (by filing a further complaint, on 25 February 2016). That was heard by the Magistrate at Dalby on 7 March 2016, resulting in the making of an order that the defendant keep the peace and be of good behaviour for a period of 6 months, with additional conditions including that he not threaten to assault or do bodily injury to Mrs Walker, or threaten to damage any of her property.

2. [2]
   Mr Harvey appeals to this court, under s 222 Justices Act 1886, from the making of that order.

3. [3]
   The appeal is by way of rehearing on the evidence given in the proceeding before the Magistrate.^[1]The appeal involves a “rehearing” in the technical sense of a review of the record of proceedings below, rather than a completely fresh hearing.^[2]This Court is required to conduct a real review of the hearing, and the Magistrate’s decision, and make its own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.^[3]Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error.^[4]

4. [4]
   At the commencement of the hearing of the appeal, I gave Mr Harvey leave to amend ground 1 of his appeal. As so amended, and as addressed in Mr Harvey’s outline of argument, the grounds on which he appeals the decision made on 7 March 2016 are:

   1. (a)
      that the learned Magistrate erred by failing to take into account the Briginshaw principle in applying the standard of proof of the balance of probabilities (ground 1);
   2. (b)
      that the evidence before the Magistrate was insufficient to prove to the correct standard the requirements under s 4 of the Peace and Good Behaviour Act (grounds 2 and 7);
   3. (c)
      that the learned Magistrate erred by accepting and taking into consideration unsworn and unserved statements provided by Mrs Walker (ground 3);
   4. (d)
      that the learned Magistrate gave insufficient reasons for the making of the order (grounds 5 and 6); and
   5. (e)
      that the learned Magistrate erred in proceeding with the hearing, in circumstances where Mr Harvey had been served with the summons only one business day before (ground 4).

Legislative framework for the making of a peace and good behaviour order

5. [5]
   Under the Peace and Good Behaviour Act, there are two provisions, setting out the circumstances in which a person may make a complaint:  s 4(1) and (2), which provide as follows:

“(1)A person (the complainant) may make a complaint to a justice of the peace that a person has threatened –

1. (a)
   to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

2. (b)
   to procure any other person to assault or to do any bodily injury to the complainant or to any person under the care or charge of the complainant; or

3. (c)
   to destroy or damage any property of the complainant; or

4. (d)
   to procure any other person to destroy or damage any property of the complaint;

and that the complainant is in fear of the person complained against (the defendant).

3. (2)
   A person (also the complainant) may make a complaint to a justice of the peace that the intentional conduct of a person (also the defendant) directed at the complainant has caused the complainant to fear that the defendant will destroy or damage any property of the complainant.”

6. [6]
   Once such a complaint has been made, the first step in the process involves a justice of the peace considering whether the “matter of a complaint”, under s 4(1) or s 4(2), has been substantiated to the justice’s satisfaction, and considering whether it is reasonable in the circumstances for the complainant to have the relevant fear. For this purpose, the justice of the peace may make such inquiries and receive such evidence as they think fit:  s 5. If they are so satisfied, the justice may issue a summons directed to the defendant, requiring them to appear before the Magistrates Court (or a warrant to apprehend the defendant):  s 4(2A). It is also possible for the justice of the peace to refer the matter to mediation:  s 4(3).

7. [7]
   Section 6(1) requires the Magistrates Court, before whom the defendant appears in accordance with the summons (or warrant) to “hear and determine the matter of the complaint”. “Upon a consideration of the evidence”, the Magistrates Court may dismiss the complaint, or make an order that the defendant keep the peace and be of good behaviour for such period of time as the court thinks fit:  s 6(3).

8. [8]
   A proceeding in relation to a complaint under s 4 is to be heard and decided as if the complaint were a complaint in respect of an offence being prosecuted in a summary way under the Justices Act 1886, subject to any necessary modifications:  s 8.

9. [9]
   One of the primary modifications, because proceedings on a complaint under s 4 of the Peace and Good Behaviour Act are civil, not criminal in nature,^[5]is that “the matter of the complaint” does not need to be proved beyond reasonable doubt. However, it is well established that, before an order can be made under s 6(3) of the Act, the strength of the evidence necessary to establish the basis for an order under s 6 must take into account the seriousness of the allegation made against the person against whom the complaint is made. That is, given the serious nature of the matters referred to in s 4 – involving threats to do or to procure acts ordinarily associated with violence to person or property – in applying the civil standard of proof, balance of probabilities, the Magistrates Court must apply the principle in Briginshaw v Briginshaw (1938) 60 CLR 336.^[6]That does not mean the standard of proof varies – it remains for the Magistrate to be satisfied of the matters of the complaint, on the balance of probabilities – but the “clarity” or “cogency” of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations.^[7]In a practical sense, that means the evidence may need to be clearer, or more cogent, than may be required in proof of less serious matters.^[8]

10. [10]
    Relevantly, in any such proceeding, evidence is required to be given on oath:  s 73 Justices Act.

Matters alleged in the complaint by Mrs Walker

11. [11]
    There were 10 matters set out in the complaint filed by Mrs Walker on 25 February 2016. However, as the Magistrate made clear at the hearing, only 3 of those were relevant for the purposes of the Peace and Good Behaviour Act,^[9]namely:

“1.July 2015 Robert Harvey threatened to get his gun and shoot me and my dogs.

…

4. On the 21^stOctober 2015 threatened to shoot the bitch.

…

8. Stalked and attempted to follow again 25 December 2016 [sic, 2015].”

12. [12]
    At the hearing before the Magistrate on 7 March 2016, both Mrs Walker and Mr Harvey appeared without legal representation. Mrs Walker and Mr Harvey gave evidence under oath. Mrs Walker also called her son, Dylan, to give evidence. Mr Harvey called his wife to give evidence. Mrs Walker also handed up at the hearing a letter from her son, Markus Walker, dated 1 March 2016; a letter from another of her sons, Ethan Walker, dated 29 February 2016; a letter from a neighbour, Rachael Gaul, dated 7 March 2016; and a statutory declaration made by Kevin Henricks, on 7 March 2016. None of those people were present at the hearing. The documents were first provided to Mr Harvey during the course of the hearing. The acceptance of these documents by the Magistrate, and apparent reliance on them, is the subject of one of the grounds of appeal.

The Magistrate’s decision

13. [13]
    The Magistrate, having heard evidence from Mrs Walker, her son Dylan, Mr and Mrs Harvey, and arguments from the two parties, proceeded to deliver her decision. Relevantly, her Honour said:

“… any peace and good behaviour order has to be – it has to be proven to the Court on the balance of probabilities that, in this case, Mr Harvey has … [her Honour referred, in substantive terms, to the contents of s 4(1) and (2) of the Act].

Now, I’ve heard quite a lot of evidence both from Ms Walker – I’ve heard a bit from Mr Harvey, who denies any sort of threats being made or other allegations. He denies each of the allegations made in the application…

I also have – and I should mention this, and read them into the record – Ms Walker called them statements. They’re more like a letter:  one signed by Marcus Walker, one of Ms Walker’s son, one by Ethan Walker, another of her sons, a statutory declaration by a Kevin John Hendrix (sic), who was visiting on the 25^thof December, a letter from neighbours, Mr and Mrs Gaul, at 3 Winifred Street at Dalby, more like a character reference. Copies of these have been given to Mr Harvey. Neither Marcus or Ethan Walker or Mr Hendrix (sic) are here to be cross-examined on their statements.

Mr Harvey blatantly denies any of the allegations. Mrs Harvey says she didn’t hear any – she hasn’t heard anything either. …

... I am only to decide this matter on the balance of probabilities. I note that the alleged incidents which – well, the incidents which Ms Walker alleges occurred prior to the matter going to mediation are – at least one of those appears to have been witnessed by Ethan Walker and also by Marcus Walker.

Mr Hendrix (sic) appears to have overheard, he says, Robert Harvey and visitors – I don’t know. We haven’t been – he’s not here for us to ask questions about whether – how he knew it was Mr Harvey or whether it was somebody else – talking about following Ms Walker down to the creek in order to obtain photos of her dogs. Whilst that is not something that appears to be threatening, I also have to have a look at whether there’s any intentional conduct that would cause Ms Walker to fear that he would destroy or damage any property. I presume that one could say that dogs are property, and it would appear that there has been incidences with regard to dogs in a number of properties around this particular area. The Harveys have dogs. The Walkers have dogs. I understand other people in the area have dogs.

The matter really needs to be sorted out. Unfortunately, it’s not this Court’s role to make any orders with regard to the fence. However, having considered everything before the Court today, and on the balance of probabilities, there’s certainly – and it comes across in her demeanour as well that Ms Walker is frightened, in fear of something. On the balance of probabilities, I’m satisfied that there has been conduct directed at the complainant that’s caused her to fear for her safety.

I’m therefore going to grant the application…”^[10]

14. [14]
    Having read the transcript of the proceeding before the Magistrate, as well as the decision, that it is apparent the Magistrate was concerned about how Mrs Walker appeared, in the sense of being upset and fearful, her Honour commenting more than once about this during the hearing^[11]and, as I have set out above, in her decision as well. Faced with two unrepresented parties; a plainly protracted and unpleasant dispute between neighbours; which had already gone to a mediation (the agreement in respect of which, to build a fence, had not been carried out, ostensibly it appears due to Mr Harvey saying he could not afford the concrete (Mrs Walker having taken out a loan to purchase all the other materials), an excuse the Magistrate, I infer, found unconvincing^[12]); and where it appears the Magistrate was inclined to believe Mrs Walker, and reject Mr Harvey’s “blatant denials”; it is apparent to me that the Magistrate proceeded to try and deal with the complaint in a pragmatic and efficient way.

15. [15]
    Pragmatism and efficiency in dealing with a dispute of this kind are highly desirable. However, having regard to the serious nature of the threats alleged to have been made by Mr Harvey, and the significance of the making of a peace and good behaviour order (placing the person the subject of it in jeopardy of breach, and punitive consequences including a fine, or even imprisonment^[13]) the need to ensure the hearing and determination of the complaint is conducted in accordance with established principles is heightened. I have formed the view that there were errors made in the way in which the Magistrate determined the matter, which necessitate the appeal being allowed, and the order being set aside.

16. [16]
    However, for reasons that will be explained, that view is not a reflection on the merits of Mrs Walker’s complaint, which ought to be returned to the Magistrates Court for rehearing.

17. [17]
    I turn now to address the grounds of appeal.

Did the Magistrate err by failing to take into account the Briginshaw principle? (ground 1)

18. [18]
    In my view, having regard to the transcript of the proceedings, and the decision, it does appear that the Magistrate has erred, by failing to take into account the Briginshaw principle. Her Honour expressly referred to the need for her to be satisfied, on the balance of probabilities, of the matters in s 4(1) or (2), but there is no indication in her Honour’s decision, or the transcript of the hearing, that her Honour took into account the strength of evidence necessary to establish the material facts on that standard, having regard to the serious nature of the threats described by Mrs Walker.

19. [19]
    As the Magistrate had done in the decision subject of the appeal in Laidlaw v Hulett, in this matter the Magistrate said “I am only to decide this matter on the balance of probabilities”,^[14]which tends to reinforce the conclusion that her Honour did not have Briginshaw in mind.

20. [20]
    Of course, it is not always necessary for a judge or magistrate to expressly refer to the Briginshaw principle – whether by reference to that case, or any requirement for clear, cogent or strict proof of particular matters.^[15]

21. [21]
    But the omission of any such reference in this case, taken with the error which I have also found (discussed below) in accepting the letters from Mrs Walker’s sons as evidence, in circumstances where it was necessary for the Magistrate to be satisfied that a threat of the kind referred to in s 4(1), or intentional conduct of the kind referred to in s 4(2), had occurred, is indicative of an error in the application of the standard of proof. As McGill SC DCJ observed, in Dufficy v Berry [2007] QDC 227 at [23], “it was not just a matter of the magistrate deciding which of two inconsistent versions was to be accepted; it was a matter of the magistrate determining whether these serious allegations had been made out”.

Did the Magistrate err by accepting and taking into consideration the unsworn and unserved statements provided by Mrs Walker (ground 3)?

22. [22]
    The letters from Mrs Walker’s sons suggest that they witnessed the July 2015 and December 2015 incidents (in the case of Markus Walker) and the October 2015 and December 2015 incident (in the case of Ethan Walker).

23. [23]
    Mr Henricks, in his statutory declaration, referred to hearing Mr Harvey and his visitors talking, on 25 December 2015, about following Mrs Walker down to the creek to obtain photos of the dogs for more evidence.

24. [24]
    As observed by the Magistrate, the letter from Rachael Gaul was more in the nature of a character reference, and not relevant to any of the “matters of the complaint”.

25. [25]
    But as already noted, none of those four people were at the hearing. The documents were only given to Mr Harvey during the course of the hearing.

26. [26]
    Nevertheless, the Magistrate received them (although, it does not appear they were formally marked as exhibits). Her Honour made reference to the fact that “usually” in a hearing, people have to be there to give sworn evidence, and make themselves available to the other party to ask questions. However, her Honour went on to say “[c]ertainly we can read these statements but those people are not here to answer those questions, which means that their evidence isn’t quite – isn’t as strong as it otherwise would have been for the court to take notice of it”.^[16]

27. [27]
    This was not the correct approach. The letters from the sons, in particular, ought not have been received at all, in circumstances where they were not sworn, and the sons were not at court to be cross-examined in relation to what was plainly significant evidence. It is not a question of the strength of their evidence; it ought not have been received.

28. [28]
    Given that the sons were apparently not available to attend court on the day of the hearing, an alternative would of course have been to adjourn the hearing to another day, when they could appear to give their evidence properly.

29. [29]
    Further, it is apparent from the Magistrate’s reasons that her Honour did rely on the letters from the sons, as demonstrating that “at least one of” the alleged incidents described by Mrs Walker had been witnessed, and also, although with greater circumspection, the declaration from Mr Henricks, in relation to the incident on Christmas Day.^[17]

30. [30]
    Given the content of the letters of the sons, in particular, it is not possible to conclude that their admission into evidence by the Magistrate did not affect the outcome of the hearing.^[18]

Was the evidence before the Magistrate sufficient to prove to the correct standard the requirements under s 4 of the Act? (grounds 2 and 7)

31. [31]
    The next matter argued by the appellant is that the evidence before the Magistrate – of Mrs Walker – was insufficient to prove, to the correct standard, the requirements under s 4 of the Peace and Good Behaviour Act (both because it was “confusing” and because, it was submitted, the evidence did not support the allegations in the complaint).

32. [32]
    The sworn evidence of Mrs Walker included evidence of an occasion on which, in about July 2015, after the Harveys had made a complaint to the Council about Mrs Walker’s dogs, Mrs Walker said:^[19]

“PLAINTIFF: … I walked out to the car to get into my vehicle. My son was outside, out the front having a cigarette, and I heard someone speak and I looked up and their teenage son was standing at the top step and Mr Harvey was behind him, and he made direct eye contact with me. It was just – and he said, ‘Dad, do you want to me to go and get the gun?’  And then I heard Robert say, ‘Maybe later’.

BENCH:  And you thought he meant it was for you?

PLAINTIFF:  Absolutely, because he made eye contact the whole time and kept me – it was very – just strange, and I actually went to the police and – I had spoken to my son, went down to the police and told them, because that was, like, pretty scary.”

33. [33]
    Mrs Walker also gave evidence of another occasion, in October 2015, on which she said she heard Mr Harvey say he “should just shoot the bitch”. She said on this occasion Mr Harvey was in (I infer) his back yard, and was kicking at the fence and “the girls” (who she explained were her dogs) were in (I infer) her back yard. She said:

“He was being just angry… Angry. Just being angry. He was angry and he was lashing out at my dogs, and I walked out there and told him – I said ‘Oi – stop it. Leave the girls alone. Stop stirring up my dogs’…  And – and then that’s when he said he ‘should just shoot the bitch’“.^[20]

34. [34]
    When asked by the Magistrate “was he talking to you or was he talking about the dogs?”, Mrs Walker responded “I believe he was talking to me, because if it was the girls it would be plural. And my son Ethan was home at the time and he was at the kitchen window and he observed as well and saw what was happening”.

35. [35]
    Mrs Walker then gave evidence about a third incident, which she said occurred on Christmas Day, 25 December 2015. She says she had gone down to the creek to walk her dogs, when she got a phone call from her son, telling her that he (the son) had heard Robert Harvey say “they were going to follow me down to the creek and take photos because they could get photos of my dogs off the leash and me not with them and say they were out wandering”.^[21]

36. [36]
    Mrs Walker referred to another incident, in which she suggested Mr Harvey was throwing rocks. Although she acknowledged that she had not seen any rocks thrown, she said she had heard Mr Harvey say some things which lead her to believe that was what he was planning to do.^[22]

37. [37]
    Mrs Walker otherwise gave evidence describing, as I have said at the outset, a dysfunctional and acrimonious relationship between herself and the Harveys, and in some respects involving other neighbours as well.

38. [38]
    Mr Harvey, as observed by the Magistrate, denied making any threats to Mrs Walker; in fact denied all the allegations made by Mrs Walker.^[23]Mrs Harvey’s evidence was that she had never witnessed her husband threatening Mrs Walker.

39. [39]
    One of Mrs Walker’s sons, Dylan, gave evidence at the hearing. He had not directly heard any of the threats Mrs Walker described, but did describe seeing Mrs Walker come into the house, after doing yard work or something similar outside, and being “physically shaken and worried for herself” and “afraid that something is going to happen” and being upset.^[24]

40. [40]
    Because of the view I have taken in relation to ground 1 (failing to apply Briginshaw) and ground 3 (accepting and taking into account unsworn statements), this appeal will be allowed. It is artificial, in my view, in light of that, to express a view about whether, having Briginshaw clearly in mind, and in the absence of that (wrongly admitted) material, the evidence of Mrs Walker alone is, or would have been, sufficient to persuade the Magistrate. It may have been. There is no reason why her Honour could not act on the evidence of Mrs Walker alone, despite Mr Harvey’s “blatant denials” – plainly she could do so if she formed an adverse view of Mr Harvey’s credibility or reliability, and accepted Mrs Walker as an honest and reliable witness. I am not able to make such an assessment, having not seen Mrs Walker or Mr Harvey give their evidence (and there not being obvious indicators, just from reading the transcript, in that regard). I infer that the Magistrate did prefer the evidence of Mrs Walker to that of Mr Harvey, but her Honour has not articulated her reasons in that regard.

41. [41]
    In all the circumstances, I do not consider this ground to be made out, but it is unnecessary to say any more about it, having regard to the view I have formed on other matters.

Were the learned Magistrate’s reasons for making the order sufficient? (grounds 5 and 6)

42. [42]
    The sufficiency of the Magistrate’s reasons is challenged by the appellant on three bases. Firstly, that her Honour made no findings as to the credibility of the witnesses; secondly, that she made no findings as to which of the “matters of the complaint” had been made out; and, thirdly, that her Honour failed to adequately explain why she believed Mrs Walker was in fear, and the basis on which that might be attributed to Mr Harvey.

43. [43]
    As to the first matter, it is correct that no express findings as to credibility were made by the Magistrate in her Honour’s decision. Where there is inconsistency between findings made, and the evidence of a witness, it may be inferred the evidence has been rejected.^[25]The “subtle influence of demeanour” cannot be overlooked,^[26]when a trial judge or magistrate resolves a conflict of evidence between witnesses (perhaps particularly where, as here, the conflict is so stark – Mrs Walker’s evidence being of particular things having occurred; Mr Harvey’s evidence being outright denial of all her allegations). Subject to the point next discussed, it may be reasonable to infer that the Magistrate accepted the evidence of Mrs Walker, and did not accept the evidence of Mr Harvey, given the conclusion her Honour reached. So, in isolation, the absence of express findings as to credibility would not necessarily lead to a conclusion that the reasons were insufficient.

44. [44]
    However, there is substance in the second matter complained of by the appellant – that the Magistrate has not made findings regarding the three “matter(s) of the complaint” which her Honour found were relevant (that is, those numbered 1, 4, and 8, set out above). Her Honour did find “there has been conduct directed at the complainant that’s caused her to fear for her safety”.^[27]Having regard to the preceding paragraph of the decision, it is to be inferred that “conduct” is a reference to the alleged incident on Christmas Day. But it is not entirely clear. And there are no express findings otherwise made, in relation to the two alleged threats, in July and October 2015. That is an unsatisfactory state of affairs, given the serious nature of the allegations made by Mrs Walker. Clear findings ought to have been made by the Magistrate about each of the matters of the complaint which her Honour found to be relevant to the proceeding, in terms of whether they were made out on the evidence before the Magistrate. Under s 6 of the Act, it is the “matter(s) of the complaint” that are required to be heard and determined by the Magistrates Court – that is, the threat(s) and conduct relied on, and that the complainant is in fear of the person complained against.^[28]

45. [45]
    As to the third matter, the finding made by the Magistrate was that Mrs Walker “is frightened, in fear of something”. As so articulated in the decision, this finding does not address the legislative requirement; for the purposes of s 4(1), that the complainant is in fear of the defendant or, for the purposes of s 4(2), that intentional conduct by the defendant has caused the complainant to fear the defendant will destroy or damage her property. In a practical sense, an inference that Mrs Walker was in fear, and that it was a fear of the defendant, could reasonably be drawn by the Magistrate if, as appears to be the case, she accepted Mrs Walker’s evidence otherwise.^[29]But when this matter is taken with the other two aspects of the reasons already referred to, I am respectfully of the view that the Magistrate’s reasons were in all the circumstances insufficient in the circumstances.

Was there a denial of procedural fairness? (ground 4)

46. [46]
    Finally, Mr Harvey submitted that he was denied procedural fairness, in circumstances where he was served with the complaint on Friday, 4 March 2016, and the hearing proceeded the following Monday, 7 March 2016.

47. [47]
    It was apparent from submissions made on Mr Harvey’s behalf on this appeal that his instructions to his legal representatives were that the complaint had been placed in his letterbox on that Friday. However, that is inconsistent with the material on the Magistrates Court file, which demonstrates that he was personally served with the summons, by Senior Constable Angeline Gates, of the Dalby Police Station, on Friday 4 March 2016.

48. [48]
    Mr Harvey appeared at the Magistrates Court on Monday, 7 March 2016 for the hearing. He made no argument or submission to the Magistrate about not having had sufficient time, or seeking an adjournment of the hearing. In those circumstances, and also bearing in mind that this was the hearing of a complaint, the substance of which had earlier been made, and which had been the subject of mediation between the parties, I do not consider there is any substance in this ground.

Disposition of the appeal

49. [49]
    It follows from the conclusions I have reached above, in relation to ground 1 (application of the Briginshaw principle), ground 3 (accepting and relying on the unsworn letters) and grounds 5 and 6 (insufficiency of reasons, in particular, in terms of findings as to the matters of the complaint), that the appeal must be allowed.

50. [50]
    I do not consider that it is possible for this Court, on appeal, to determine Mrs Walker’s complaint. It will be necessary for the matter to be returned to the Magistrates Court for rehearing, which would not be limited to the evidence properly before the Magistrate on 7 March 2016, but could include further evidence, including from Mrs Walker’s sons.

51. [51]
    If the parties are able to resolve their difficulties – perhaps by proceeding with the construction of the fence agreed in mediation – it may not be necessary to proceed with that rehearing. But that is a matter for the parties. Mrs Walker indicated that she wished the matter to be returned to the Magistrates Court, should I find some error requiring the appeal to be allowed. Although for Mr Harvey it was submitted that, if the appeal is allowed, the complaint should simply be dismissed, I am not satisfied that is appropriate in the circumstances.

52. [52]
    The appellant also seeks an order that the respondent, Mrs Walker, pay the costs of the appeal. A broad discretion is conferred on this Court, by s 226 of the Justices Act, to award costs of an appeal. In all the circumstances, including having regard to the nature of the proceeding,^[30]the conclusions I have reached as to the errors made by the Magistrate, as well as my reasons for not accepting other grounds argued by Mr Harvey, my present view is that it is not appropriate to make any order for costs. However, consistent with the indication I gave at the end of the hearing of the appeal, I will give the parties an opportunity to make further submissions about this, should they wish to do so.