Lewis v Commissioner of Police
[2018] QDC 174
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- Unreported Judgment
- Lewis v Commissioner of Police[2018] QDC 174
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Lewis v Commissioner of Police[2018] QDC 174
Lewis v Commissioner of Police[2018] QDC 174
DISTRICT COURT OF QUEENSLAND
CITATION: | Lewis v Commissioner of Police [2018] QDC 174 |
PARTIES: | PERREN JAMES LEWIS v COMMISSIONER OF POLICE |
FILE NO/S: | 475/18 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court at Brisbane |
DELIVERED ON: | 30 August 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 20 July 2018 |
JUDGE: | Dearden DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – where the appellant was charged with an offence of failing to stop a motor vehicle – where the police prosecutor offered no evidence before the learned magistrate – where the appellant made an application for costs upon the dismissal of the charge – where the application for costs was refused – whether the magistrate made findings of fact favourable to the prosecution which she was not entitled to make because no evidence was adduced before her – whether the magistrate failed to properly exercise her discretion pursuant to Justices Act s. 158 – whether the magistrate erred in law in holding that all circumstances set out in Justices Act s. 158A(2) were irrelevant apart from s. 158A(2)(a) – whether the magistrate should have found that the proceeding was continued in good faith – whether the magistrate erred in law in finding that the application for costs should be refused – whether the magistrate should have exercised the discretion in the appellant’s favour |
LEGISLATION: | Justices Act 1886 (Qld) Police Powers and Responsibilities Act 2000 (Qld) |
CASES: | Hodgens v Williams [2005] QDC 371 House v R (1936) 55 CLR 499 Latoudis v Casey (1990) 170 CLR 534 McDonald v Queensland Police Service [2017] QCA 255 Murray v Bradford [2003] QCA 91 |
COUNSEL: | S McGhie (sol) for the appellant E Kennedy (sol) for the respondent |
SOLICITORS: | Richardson McGhie for the appellant Commissioner of Police for the respondent |
Introduction
- [1]The appellant, Perren James Lewis, appeals from the decision of the learned magistrate at Brisbane refusing an application for costs upon the dismissal of a charge of failing to stop a motor vehicle.[1]
- [2]The appellant was charged with a range of offences, including one offence of failing to stop a motor vehicle.[2] In respect of the fail to stop charge, the police prosecutor offered no evidence before the learned magistrate on 7 February 2018. Mr McGhie, who appeared for the appellant both before the learned magistrate and on this appeal, made an application on behalf of the appellant for costs, pursuant to Justices Act ss. 158 and 158AA, which was refused.
Grounds of appeal
- The magistrate made findings of fact favourable to the prosecution which she was not entitled to make because no evidence was adduced before her.
- The magistrate failed to properly exercise her discretion pursuant to s. 158 of the Justices Act.
- The magistrate erred in law in holding that all the circumstances set out in s. 158A(2) of the Justices Act were irrelevant apart from s. 158A(2)(a).
- The magistrate should not have found that the proceeding was continued in good faith.
- The magistrate erred in law in finding that because the proceeding was continued in good faith, the application for costs should be refused.
- The magistrate should have found that, in the circumstances, she had no alternative but to exercise the discretion in the defendant’s favour.[3]
- [3]The appellant was charged with the following offences arising out of an incident which occurred on or about 8.40pm on 15 April 2016 at Kippa-Ring in the Magistrate’s District of Redcliffe, namely: -
- (1)driving without a licence;
- (2)fail to stop a motor vehicle;
- (3)possession of utensils or pipes etc that had been used (in respect of an offence under the Drugs Misuse Act 1986);
- (4)driving an uninsured vehicle; and
- (5)driving an unregistered vehicle.[4]
- [4]The appellant first appeared on these matters in the Redcliffe Magistrates Court on 18 April 2016. After significant delays, the matter was listed for hearing on 11 December 2017. On that date, the learned magistrate was advised that the prosecution would offer no evidence on the fail to stop charge. The appellant’s solicitor indicated that he intended to apply for costs. The costs argument and the lengthy sentence of the appellant in respect of other matters before the learned magistrate was adjourned for hearing to 7 February 2018.[5]
- [5]In the application for costs before the learned magistrate, Mr McGhie advised the court that, at an appearance on 19 October 2017, the fail to stop charge was listed for trial on 11 December 2017 (by which stage the file had been transferred to Brisbane). On 20 November 2017, Mr McGhie sent a submission to police prosecutions that the charge should be discontinued on the basis that “the charge had no prospects of success” but received no response. On 7 December 2017, Mr McGhie was advised by a prosecutor from the Brisbane Prosecution Office that she was not aware of the submission and so Mr McGhie sent the submission again. On 8 December 2017, at about 3.00pm, Mr McGhie was advised that the charge would be NETO’d (i.e. no evidence to offer).[6]Mr McGhie advised the learned magistrate that when the matter came before the Magistrates Court on 11 December 2017, the presiding magistrate at that appearance was advised that the prosecution proposed to offer no evidence. However, because the list was full and the matter was unable to be dealt with on that date, it was adjourned to be dealt with on 7 February 2018.[7]
- [6]Mr McGhie, in his submission to the learned magistrate seeking costs, advised:-
“[The brief] contained some video evidence and some audio of a police car following a motorcycle that [his client] was riding… the distance travelled between the time when the lights were activated and the motorcycle stopped was about 100 metres… and the time was about fifteen seconds. So it would have to have been the shortest failing to stop, I would submit in history. Apart from that, the defendant, when spoken to by police – and this is all on audio and video – later on, repeatedly said that he didn’t see the lights or hear the sirens. It was at night time and he was riding a motorcycle with a helmet on. Despite that, the matter proceeded to trial. It was fully prepared. And, for some reason, it was discontinued or notification of that virtually at the last minute. There was no technicality involved. There was no failure to – from the defendant to disclose anything or give them his version. They simply proceeded with a charge that, in my submission, never had any prospect of success.”[8]
- [7]The police prosecutor opposed the application for costs before the learned magistrate. The prosecutor submitted that “the distance the vehicle travels once an officer activates lights and indicates for a vehicle to stop… isn’t relevant to whether the vehicle fails to stop or not.”[9]
- [8]The police prosecutor quoted from two statements of the police officers who were eye witnesses at the scene. The police prosecutor quoted police officer Challenger who stated:-
“I activated the police vehicle lights and siren at the intersection of Church Street and McDonald Road and attempted to [indistinct] intercept the defendant. I observed the defendant then turn his head around and look directly at the police vehicle. The defendant rode the motorcycle up over the curb, mounting the footpath, and continued to ride in a northerly direction on the footpath. I observed the motorcycle commence to wobble side to side and the rear tyre lock up. Motorcycle then came to a stop on the driveway outside number 12 Church Street.”[10]
- [9]The prosecutor then quoted from the statement of police officer Dowling, as follows:-
“Lights and siren were activated. This time the rider continued – conducted and overt action to evade police by mounting the curb onto the footpath on the left hand side of Church Street. The motorcycle appeared to stall and come to a stop outside 12 Church Street Kippa-Ring. I then observed [indistinct] exit our vehicle, place the rider under arrest. The rider’s helmet was removed. He recognised the defendant.”
- [10]The prosecutor also advised that “a chain had come off the motorcycle.”[11]
- [11]The prosecutor then further submitted that “the defendant… stopped because the chain came off the motor vehicle”; that the video was “poor quality” and the “discussion in the prosecution office at the time” was whether “the defendant knew…that there was a police car behind him with the lights and siren activated, bearing in mind it was night time, he had his helmet on. The officers say he turned his head and looked. The decision was made by the prosecution, after considering the material, to discontinue the charge…”. The prosecutor submitted that “the prosecutions looked at…the whole of the material, with what the defendant said, and gave him the benefit of the doubt at the time.”[12]
Decision appealed against
- [12]The learned magistrate’s reasons for refusing the application for costs are as follows:-
“In relation to a charge of failing to stop under the Police Powers and Responsibilities Act, the prosecution have indicated that they are not offering any evidence in relation to it. The defendant, through his legal representative, has applied for costs because of that offering of no evidence. The defendant had made a submission on the 20th of November about the matter not proceeding. That was not responded to until the 7th of December, at which time the response was that the matter was to continue. The following afternoon, there was a change of heart, and there was an indication by prosecution that there would be no evidence offered.
Section 158A of the Justices Act sets out the factors that the court needs to consider in making a decision whether to award costs on dismissal of a charge. There is nothing before me to suggest that the prosecution was commenced other than in good faith. The issue is whether the prosecution was continued in good faith after that submission from the defence was made and in my view, the other factors set out in…section 158(1) are not relevant…to the matter before me, other than I will observe the defendant did cooperate and answered questions by police.
There is some uncertainty, on what I’ve been told, about whether the defendant in fact stopped voluntarily in the end or only because the motorcycle which he was riding became disabled. There was a police officer statement – or perhaps it was from two police officers – to say that the defendant had turned his head towards them. Also there was a statement that lights and sirens had been activated. The defendant apparently said that he did not see the police. If it were accepted that that the police had activated lights and sirens and that the defendant had turned his head, then…the inference clearly would be that the defendant…must have known that the police had a clear interest in him. … Given that the incident occurred at night, the inference that could be drawn was that lights – that is the police red and blue lights – would have been clearly visible. I can accept that it would be open to a court to conclude that a person wearing a helmet may not hear a siren clearly.
In my view, the facts, as outlined to me, do not suggest that the case had no prospect of success. Even where there is a brief period about which the court could be satisfied that there was a failure to stop, the charge could be made out. Of course, the less serious example of the offence may mean that the court could take a very lenient approach to sentence, consistent with the case law about this particular provision and the Police Powers Act. (sic) I am not satisfied in the circumstances that it is appropriate to exercise my discretion to make a costs order. The charge of failing to stop is dismissed and the defendant is discharged in relation to it. The defence application for costs is refused.”[13]
The law – appeals
- [13]In McDonald v Queensland Police Service [2017] QCA 255, Bowskill J held that:-
“On an appeal under [Justices Act] s. 222 by way of rehearing, the District Court is required to conduct a real review of the trial, and the magistrate’s reasons, 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. Nevertheless, in order to succeed on such an appeal, the appellant must establish some legal, factual or discretionary error” (citations deleted).[14]
- [14]The classic exposition of the test for an appellant court to set aside a judicial decision based on the exercise of a discretion is contained in House v The King (1936) 55 CLR 499, pp 504-505:-
“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 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. 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 properly to 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.”[15]
- [15]Justices Act (Qld) 1886 s. 158(1) (Costs on dismissal) provides:-
- “(1)When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.”
- [16]Justices Act s. 158A(1) & (2) (Exercise of discretion in relation to an award of costs) provide:-
“(1) 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.
- (2)In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—
- (a)whether the proceeding was brought and continued in good faith; and
- (b)whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
- (c)whether the investigation into the offence was conducted in an appropriate way; and
- (d)whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
- (e)whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
- (f)whether the defendant unreasonably declined an opportunity before a charge was laid—
- (i)to explain the defendant’s version of the events; or
- (ii)to produce evidence likely to exonerate the defendant;
- (g)whether there was a failure to comply with a direction given under section 83A; and
- (h)whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
- (i)whether the defendant was acquitted on a charge, but convicted on another.”
- [17]Subsequent to the decision in Latoudis v Casey (1990) 170 CLR 534, the insertion of Justices Act s. 158A governed the exercise of the courts discretion where the complainant is “a police officer or public officer”.[16]In Murray v Bradford [2003] QCA 91, Davies JA stated:-
“It may be accepted that, but for [Justices Act] s. 158A the discretion which magistrates have to order that the costs of a successful defendant be paid by an unsuccessful claimant will ordinarily be exercised in favour of such a defendant. See Latoudis v Casey (1990) 170 CLR 534. However that is not always the case. A discretion remains under [Justices Act] s. 158 to order otherwise. It is not necessary to consider how that discretion ought properly to have been exercised in a case such as this if s. 158A did not apply.
There is no doubt that [Justices Act] s. 158A applied to this case because the complainant was a police officer. Under that section despite [Justices Act] s. 158(1) the magistrate may make a costs order such as the applicant says should have been made only if he is satisfied that it is proper that such an order should be made; and in so deciding he is obliged to take into account all relevant circumstances including but not limited to those enumerated in subsection (2). Section 158A is thus, plainly, a limitation on the discretion which [Justices Act] s. 158 permits to order costs against a complainant.”[17]
- [18]Robin DCJ in Hodgens v Williams [2005] QDC 371 noted:-
“[Justices Act] section 158A seems to me to have been the state legislators’ response to Latoudis v Casey (1991) 170 CLR 534. It confines the circumstances in which an unsuccessful complainant who is a police officer (sic).
The legislators took a more protective view of the pecuniary interests of the police force, and I suppose of the taxpayers of the State, than the majority in the High Court.”[18]
Discussion
Ground 1 – the magistrate made findings of fact favourable to the prosecution, which she was not entitled to make because no evidence was adduced before her.
- [19]The learned magistrate had no sworn evidence before her from either the appellant or the respondent, but given that the prosecution offered no evidence and the trial did not proceed, I consider that the learned magistrate was entitled to proceed on the basis of the submissions made by the appellant’s counsel (who also appeared on this appeal) as well as the submissions from the prosecutor. I accept that, with the exception of the Schedule of Facts and photographs provided by the prosecution, none of the sourced documents relevant to the submissions made on behalf of the respondent were tendered to the learned magistrate. With respect, I note that conversely, no documents were tendered by the appellant. There was, of course, no reason to doubt Mr McGhie’s oral submission before the learned magistrate, in particular, that he forwarded a written submission to the Brisbane prosecutions office on 20 November 2017 and did not receive a response. It was, however, clearly open to the magistrate to make findings of fact based on the information provided to her in the course of hearing the application for costs.
- [20]This ground of appeal fails.
Ground 4 – the magistrate should not have found that the proceeding was continued in good faith.
- [21]The learned magistrate identified that “the issue was whether the prosecution was continued in good faith after [the] submission from the defence was made”[19]and concluded that:
“The facts, as outlined… do not suggest that the case had no prospect of success”.[20]
- [22]The learned magistrate was entitled to find that the proceeding was continued in good faith, given the submissions made before her. It was open to the learned magistrate to conclude that a charge of failing to stop was properly brought in the circumstances even though, ultimately, after consideration of the appellant’s submission, it was decided not to continue with that charge. A prosecutorial decision not to continue with a proceeding, by concluding that the appellant should be given “the benefit of the doubt”, does not preclude a magistrate deciding that the proceeding was “brought and continued in good faith”.[21]
- [23]In my view, the learned magistrate was clearly entitled on the basis of the information provided to her, to conclude (as she inferentially did) that the proceeding was “brought and continued in good faith”[22]given that (utilising the double negative) she formed the view that the facts did not suggest that the case had no prospect of success.
- [24]This ground of appeal must also fail.
Ground 3 – the magistrate erred in law in holding that all the circumstances set out in s 158A(2) of the Justices Act were irrelevant apart from s 158A(2)(a).
- [25]The learned magistrate identified in her reasons that:
“…the other factors set out in s 158(1) [this appears to be an error and clearly should be a reference to s 158A(2)]…to the matter before me other than I will observe the defendant did co-operate and answered questions by police.”[23]
On the face of it, that appears to be an acknowledgment by the learned magistrate that the defendant had not unreasonably declined an opportunity before a charge was laid to explain his version of events.[24]
- [26]In any event, there appears to have been no submission that engaged Justices Act s. 158A(2)(b) (whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding); s. 158A(2)(c) (whether the investigation into the offence was conducted in an appropriate way); s. 158A(2)(d) (whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant); s. 158A(2)(e) (whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence); s. 158A(2)(g) (whether there was a failure to comply with the direction given under s 83A); s. 158A(2)(h) (whether the defendant conducted the offence in a way that prolonged the proceeding unreasonably); nor s. 158A(2)(i) (whether the defendant was acquitted on a charge, but convicted on another).
- [27]It follows that the learned magistrate considered the two relevant provisions of the (non-exhaustive) list of relevant circumstances identified in Justices Act s. 158A(2), namely Justices Act s. 158A(2)(a) (whether the proceeding was brought and continued in good faith); and Justices Act s. 158A(2)(f)(i) (whether the defendant unreasonably declined an opportunity before a charge was laid to explain the defendant’s version of the events).
- [28]In my view, the learned magistrate has identified all of the relevant circumstances applicable in this case pursuant to Justices Act s. 158A(2) and has considered the submissions and material relevant to the exercise of her discretion in respect of those two identified sub-sections.
- [29]Accordingly, I consider the learned magistrate has not erred in law in reaching a conclusion that the only relevant sub-sections were s. 158A(2)(a) & (f)(i). This ground also fails.
Ground 2 – the magistrate failed to properly exercise her discretion pursuant to s. 158 of the Justices Act.
- [30]Given the provisions of Justices Act s. 158A(1), when the complainant “is a police officer”,[25]then the discretion pursuant to Justices Act ss. 158 & 158A(1) must be exercised pursuant to the provisions of s. 158A(2). On the material before the learned magistrate, she was clearly entitled to reach the decision she reached. I am not persuaded that she failed to properly exercise her discretion pursuant to Justices Act s. 158.
- [31]This ground also fails.
Ground 5 – the magistrate erred in law in finding that because the proceeding was continued in good faith, the application for costs should be refused.
- [32]As I have identified, the learned magistrate, in the exercise of her discretion, was entitled to find that the proceedings had been brought and continued in good faith, in circumstances where the defendant had provided an explanation.
- [33]As House v R (1936) 55 CLR 499 identifies, it is not whether this court in an appellate capacity would have taken a different course, but “it must appear that some error has been made in exercising the discretion”.[26]There was no error on the part of the learned magistrate.
- [34]This ground also fails.
Ground 6 – the magistrate should have found that, in the circumstances, she had no alternative but to exercise the discretion in the defendant’s favour.
- [35]With respect, in exercising a discretion, a judicial officer in these circumstances could not properly conclude that they had “no alternative but to exercise the discretion in the defendant’s favour”. There were relevant issues to consider on each side of the argument, but the learned magistrate, in this matter, concluded that the proceeding was “brought and continued in good faith”, even in the context of the defendant’s explanation, and the learned magistrate concluded this was a case that (to remove the double negatives) had prospects of success, even though the prosecution, as it was entitled to, elected not to continue the prosecution in the light of the (doubtless eloquently persuasive) submissions made by the appellant’s solicitor. It follows that it cannot be concluded the learned magistrate had “no alternative” but to exercise the discretion in favour of the defendant.
- [36]This ground also fails.
Conclusion
- [37]The appellant has failed to demonstrate any error in the exercise of the learned magistrate’s discretion. Accordingly, the appeal must fail.
Order
- 1.Appeal dismissed.
Footnotes
[1] Police Powers and Responsibilities Act 2000 (Qld), s. 754(2).
[2] Police Powers and Responsibilities Act 2000 (Qld), s. 754(1) & (2).
[3] Notice of Appeal to a District Court Judge filed 9 February 2018.
[4] Exhibit 2 – Outline of Submissions on behalf of the Respondent para 1; Magistrates Court file – record of proceedings (document no. 2).
[5] Exhibit 2 – Outline of Submissions on behalf of the Respondent paras 4 & 8.
[6] Transcript 1-9 – 1-10.
[7] Transcript 1-10.
[8] Transcript 1-10 – 1-11.
[9] Transcript 1-11.
[10] Transcript 1-11.
[11] Transcript 1-11 – 1-12.
[12] Transcript 1-12.
[13] Decision 1-14 – 1-15.
[14] McDonald v Queensland Police Service [2017] QCA 255 at [47] (per Bowskill J with whom Fraser and Philippides JJA agreed).
[15] House v The King (1936) 55 CLR 499, 504-505.
[16] Justices Act s. 158A(1).
[17] Murray v Bradford [2003] QCA 91 per Davies JA, p. 7.
[18] Hodgens v Williams [2005] QDC 371 pp 2-3.
[19] Decision 1-15.
[20] Decision 1-15.
[21] Justices Act s. 158A(2)(a).
[22] Justices Act s. 158A(2)(a).
[23] Transcript 1-15.
[24] Justices Act s. 158A(2)(f)(i).
[25] Justices Act s. 158A(1).
[26] House v R (1936) 55 CLR 499, 504.