GJK v Commissioner of Police (No. 2)
[2021] QDC 343
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- Unreported Judgment
- GJK v Commissioner of Police (No. 2)[2021] QDC 343
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GJK v Commissioner of Police (No. 2)[2021] QDC 343
GJK v Commissioner of Police (No. 2)[2021] QDC 343
DISTRICT COURT OF QUEENSLAND
CITATION: | GJK v Commissioner of Police (No. 2) [2021] QDC 343 |
PARTIES: | GJK (Applicant) v COMMISSIONER OF POLICE (Respondent) |
FILE NO: | 127 of 2021 |
DIVISION: | Appellate |
PROCEEDING: | Costs of appeal pursuant to s 226 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Townville Magistrates Court |
DELIVERED ON: | 3 December 2021 (delivered ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 December 2021 |
JUDGE: | Dearden DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL AND NEW TRIAL – COSTS – where the applicant seeks the costs of the appeal – where the applicant seeks the costs the summary hearing – where the respondent does not concede that costs be awarded in respect of the summary hearing |
LEGISLATION: | Justices Act 1886 (Qld) ss 158, 158A, 159, 225, 226, 232, 232A Criminal Proceeds Confiscation Act 2002 (Qld) s 252 |
CASES: | Bell v Carter; ex parte Bell [1992] QCA 245 Madden v Commissioner of Police [2021] QDC 152 Gibson v Canniffe [2008] QDC 319 GJK v Commissioner of Police [2021] QDC 288 |
COUNSEL: | DA Marley for the appellant AR Lowrie for the respondent |
SOLICITORS: | Purcell Taylor Lawyers for the applicant Office of the Director of Public Prosecutions for the respondent |
Introduction
- [1]This is an application by the successful appellant GJK, seeking the costs of her appeal to this court, and the costs in respect of the summary hearing before the Magistrates Court which was the subject of the appeal.
Costs of Appeal
- [2]The applicant seeks the costs of the appeal pursuant to Justices Act 1886 (Qld) (‘JA’) s 226, fixed in accordance with JA s 232 and 232A, as follows: –
- (a)appeal hearing – $1800
- (b)transcript costs – $1187.79
- (a)
Total $2987.79.
Costs of Summary Hearing
- [3]
Total $2250.[3]
- [4]The respondent does not concede that costs should be awarded in respect of the summary hearing.
The Law
- [5]JA s 226 provides:
The judge may make such order as to costs to be paid by either party as the judge may think just.
- [6]JA s 225 – Powers of Judge on hearing appeal:
- (1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.
- (2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.
- (3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.
- (4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.
- (1)
- [7]JA s 158 – Costs on dismissal:
- (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.
- (1)
- [8]JA s 158A – Exercise of discretion in relation to an award of costs:
- (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:
- whether the proceeding was brought and continued in good faith; and
- 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
- whether the investigation into the offence was conducted in an appropriate way; and
- 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
- whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
- whether the defendant unreasonably declined an opportunity before a charge was laid –
- to explain the defendant’s version of the events; or
- to produce evidence likely to exonerate the defendant;
- whether there was a failure to comply with a direction given under section 83A; and
- whether the defendant conducted the Defence in a way that prolonged the proceeding unreasonably; and
- whether the defendant was acquitted on a charge but convicted on another.
- (1)
- [9]JA s 159 provides:
The sum so allowed for costs shall in all cases be specified in the conviction or order of dismissal, or striking out a complaint for want of jurisdiction.
- [10]The respondent argues that the effect of JA s 159 is that the costs order must be made at the same time as the order which finalises the proceeding. In Bell v Carter; ex parte Bell [1992] QCA 245, the Court of Appeal held, in respect of JA s 159, that:
…if an order for costs is to be made in relation to a dismissal, it is necessary that the formal dismissal be deferred until the court is in a position to make its final determination on the question of costs.[4]
- [11]In Madden v Commissioner of Police [2021] QDC 152 [37], Rosengren DCJ held (applying Bell v Carter; ex parte Bell [1992] QCA 245) that, relevantly: –
- (i)an order for costs cannot be made once there has been a formal dismissal of the charge or complaint;
- (ii)the timing of the filing of an application and purported adjournment for the making of directions for the determination of the application for costs is irrelevant; and
- (iii)an application for costs must not only be made but also considered and determined prior to any formal dismissal of the complaint.
- (i)
- [12]In Gibson v Canniffe [2008] QDC 319, Devereaux ADCJ (as he then was), in dealing with the JA s 159 issue, read in the light of the decision of Bell v Carter; ex parte Bell, stated at [77]: –
I have concluded Bell v Carter does not determine the result in this case because here, it cannot be said, as it was in that case, that “there can be no doubt that on [20 November 2007] the learned magistrate dismissed the charge.” On the contrary, the learned magistrate’s endorsement, “Defendant acquitted. Reasons into record. Submissions on cost to be filed by the 4/12/07”, although plainly evidencing a finding of not guilty, did not purport to be a formal dismissal.
- [13]Devereaux ADCJ stated further at [84]: –
even if an acquittal may for some purposes be the equivalent of a dismissal, it was not, in my opinion, in the circumstances of this case, a “formal dismissal” such as to preclude an order for costs thereafter.
- [14]It is instructive then, in that context, to examine the precise terms of the order that I made on 26 November 2021 when I delivered my reasons for judgment, in (the now published judgment) GJK v Commissioner of Police [2021] QDC 288 [39]: –
- (1)Appeal granted.
- (2)Set aside the verdict of guilty and enter a verdict of not guilty in respect of the charge of possessing tainted property pursuant to the Criminal Proceeds Confiscation Act 2002 (Qld) s 252.
- (3)Set aside the sentence imposed on 11 June 2021.
- (4)Set aside the order forfeiting the property.
- (1)
- [15]With respect, I consider that, consonant with the reasoning of Devereaux ADCJ in Gibson v Canniffe, those orders that I have made in this matter, in conjunction with the indication at [40] of GJK v Commissioner of Police [2021] QDC 288, that I would hear the parties on costs, did not purport to be a formal “dismissal”, and accordingly, the provisions of JA s 159 are not enlivened, and this court has the power to make an order as to costs.
- [16]That power, in my view, in respect of the costs of the summary hearing, arises from JA s 225(3), rather than JA s 226, and requires a consideration of JA s 158 and s 158A.
- [17]In that respect, the considerations in relation to costs, in the light of my decision on the substantive appeal, are, I consider, quite straightforward. It is clear that the police had no power to do what they did, i.e. purport to pull over the applicant for a licence check.[5] Any suspicions held by police were from intelligence holdings in respect of the address outside which the vehicle was parked and the registration number and details of the motor vehicle. These were matters entirely outside the knowledge of the applicant. The police misconduct in these proceedings commenced at the point at which the car was stopped.
- [18]It is therefore, with respect, quite clearly a situation where, pursuant to JA s 158A(2)(c), I have concluded that the investigation was not conducted in an appropriate way. On the contrary, the investigation was conducted quite clearly in breach of the law and it was the magistrate’s failure to make an appropriate ruling that, in my view, entitled the applicant to succeed on the appeal.
- [19]I have considered the other criteria contained in JA s 158A(2) and, in my view, none of those criteria is enlivened, in a way which would justify this court refusing an application for costs in this matter, and accordingly, it follows that the applicant is entitled to her costs.
- [20]It is appropriate, therefore, to award costs, as sought, fixed at $2250.
Orders
- [21]In the light of the decision of the Court of Appeal in Bell v Carter; ex parte Bell [1992] QCA 245, it is my view that the text of the appropriate further orders should be as follows: –
- (1)The respondent pay the appellant’s costs of this appeal, fixed at $2987.79.
- (2)The respondent pay the appellant’s costs of the summary trial in the Townsville Magistrates Court, fixed at $2250.
- (3)In respect of the charge of possessing tainted property on 12 June 2020, brought against the appellant in the Townsville Magistrates Court – charge dismissed.
- (1)