SHAW -v- WA POLICE [2026] WASC 209

[2026] WASC 209 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : SHAW -v- WA POLICE [2026] WASC 209 CORAM : BYDDER J HEARD : 20 MAY 2026 DELIVERED : 2 JUNE 2026 FILE NO/S : SJA 1077 of 2025 BETWEEN : NINA SHAW Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE S OLIVER File Number : RO 5229 of 2025 Catchwords: Quantum of costs - Successful accused - Whether there was a denial of procedural fairness - Whether matter should have been adjourned to chambers - Adducing new evidence for sole purpose of considering the costs order - There was a failure to accord the appellant procedural fairness on the question of costs - Appeal allowed -- 1 of 20 -- [2026] WASC 209 Page 2 Legislation: Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2024 Legal Profession Uniform Law Application Act 2022 Official Prosecutions (Accused's Costs) Act 1973 (WA) Result: Appeal allowed Category: B Representation: Counsel: Appellant : Mr I Macfarlane Respondent : Ms K Dias Solicitors: Appellant : Mr I Macfarlane Respondent : State Solicitor's Office Cases referred to in decision: Bell v Velios [2016] WASC 247 Fairhead v Bathurst [2008] WASC 209 Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418 Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565 Lockett v Commissioner of Consumer Protection [2017] WASC 358 Norton v Morphett (1995) 83 A Crim R 90 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 -- 2 of 20 -- [2026] WASC 209 BYDDER J Page 3 BYDDER J: Introduction 1 On 2 October 2025, a charge against the appellant was dismissed for want of prosecution under s 25 of the Criminal Procedure Act 2004 (WA) (Criminal Procedure Act). Because the charge was dismissed for want of prosecution, the appellant was a successful accused within the meaning of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Accused's Costs Act).1 2 Subject to certain irrelevant exceptions, a successful accused is entitled to her costs.2 3 As the appellant was successful by reason only of a decision of the Magistrates Court, the Magistrates Court was required to make an order as to the amount of her costs.3 The amount of costs ordered, other than court fees, is to 'be in accordance with the scale fixed from time to time by a legal cost determination made under the Legal Profession Uniform Law Application Act 2022 section 133.'4 4 At the hearing before the learned Magistrate on 2 October 2025, the appellant's counsel applied for costs in the sum of $4,400. The learned Magistrate ordered costs in the amount of $2,000. The appellant seeks leave to appeal to this court from the costs order of the learned Magistrate. 5 For the reasons set out below, leave to appeal should be granted and the appeal should be allowed. The hearing before the learned Magistrate on 2 October 2025 6 After the prosecutor applied to discontinue the charge and the learned Magistrate dismissed the charge under s 25 of the Criminal Procedure Act, the following exchange occurred between the learned Magistrate and the appellant's counsel: MACFARLANE, MR: And I seek an order in cost in the sum of $4400, ma'am. HER HONOUR: When were you notified of the discontinuance? 1 Accused's Costs Act s 4(2)(a)(iii). 2 Accused's Costs Act s 5(1). 3 Accused's Costs Act s 5(2). 4 Accused's Costs Act s 5(5). -- 3 of 20 -- [2026] WASC 209 BYDDER J Page 4 MACFARLANE, MR: About three quarters of an hour ago. I was here. HER HONOUR: Do you have a schedule? MACFARLANE, MR: No. I haven't brought anything with me because I was simply expecting to go to trial today. If you want to adjourn the matter to Chambers, I will deal with it. HER HONOUR: So how many statements? It's just an oath-on-oath case, isn't it? MACFARLANE, MR: Sorry? HER HONOUR: It's just an oath-on-oath case, isn't it? How many statements were you served with? MACFARLANE, MR: Yes, it is. But I had to take instructions from my client. I wasn't actually served a disclosure. That was served to my client, which was a bit of a problem, but I was. HER HONOUR: Well, you weren't on record. She wasn't represented previously. So that's why you didn't get it. MACFARLANE, MR: No, ma'am. What happened was I --- HER HONOUR: Consistent with the direction made by Mr Mahon, it was served directly on her. So that's why that's happened. She wasn't represented by you on the appearance, and it was served on her in accordance with Mr Mahon's direction. MACFARLANE, MR: Is that on 18 June?5 HER HONOUR: Yes. MACFARLANE MR: Well, I was instructed on 18 June. And --- HER HONOUR: A legal aid duty lawyer appeared for her. So whether that was conveyed or not, the direction given was disclosure on Ms Shaw directly. So the prosecution have complied with that. I appreciate that, but my question still is how many witness statements were involved in the brief? MACFARLANE, MR: I got one. I got the actual recording - sorry, recorded --- HER HONOUR: Transcript of the child witness interview. MACFARLANE, MR: --- transcript of the child witness interview. 5 Counsel for the appellant explained at the hearing of this appeal that this date was incorrect and that he was instructed on 18 July 2025. -- 4 of 20 -- [2026] WASC 209 BYDDER J Page 5 HER HONOUR: Okay. MACFARLANE, MR: And that was about 40 pages from memory. I can tell you exactly. HER HONOUR: Okay. There will be costs in the amount of $2000. MACFARLANE, MR: Can you explain that, please, ma'am? HER HONOUR: I explained that on the basis that it was - the costs have to be proportionate to the complexity of the matter. You have an oath-on-oath case with a child witness interview and a transcript. That's really the extent of the disclosure. It isn't a complex brief. MACFARLANE, MR: Right. HER HONOUR: So that is why the costs are being set at $2000. MACFARLANE, MR: Right. Thank you, ma' am. I will --- HER HONOUR: Just take a seat in the dock, and when you get your paperwork, you will be free to go. MACFARLANE, MR: I will just put on record, ma'am, that I did make an application that I provide the details to you. And that the matter be sent (indistinct) . So --- HER HONOUR: Today? MACFARLANE, MR: Yes. Sorry? HER HONOUR: Are you talking about today? MACFARLANE, MR: Well, sent to Chambers means I would be given an opportunity to prove the costs. But I'm just putting that on record. Thank you, ma'am. HER HONOUR: Yes, thank you. The basis for the appeal 7 It is not in dispute that the appellant can appeal from the learned Magistrate's costs order. A person who is aggrieved by a 'decision' of a court of summary jurisdiction may appeal to the Supreme Court against that decision.6 8 The learned Magistrate's costs order is a decision of that kind.7 6 Criminal Appeals Act 2004 (WA) s 7(1). 7 Criminal Appeals Act s 6(h) (definition of 'decision, of a court of summary jurisdiction'). -- 5 of 20 -- [2026] WASC 209 BYDDER J Page 6 9 The appellant must obtain leave to appeal.8 If leave to appeal is not granted on at least one ground of appeal, the appeal is taken to have been dismissed.9 10 The court must not grant leave in respect of a ground of appeal unless the court is satisfied that the ground has a reasonable prospect of succeeding.10 A ground will have a reasonable prospect of success in this sense if it has 'a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum; in effect, that it has a real prospect of success.'11 11 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.12 However, the possibility that an appeal may be dismissed on this basis is not to be considered in determining whether a ground has a reasonable prospect of success.13 Application to adduce further evidence 12 The appellant applied to adduce further evidence, by way of an affidavit by her counsel Mr Ian Macfarlane sworn 13 April 2026. 13 In his affidavit, Mr Macfarlane deposes to receiving a grant of Legal Aid to represent the appellant and the work that he did in respect of the charge against her, including communications with police officers. Mr Macfarlane also refers to and attaches to his affidavit an email chain between him and a police officer and a time sheet he compiled as costs were incurred. 14 I must decide the appeal on the evidence and material that were before the learned Magistrate.14 However, for the purposes of dealing with the appeal I may admit any other evidence.15 15 The evidence the appellant wishes to lead by way of Mr Macfarlane's affidavit is new rather than fresh evidence. The evidence was available at the time of the hearing and for the reasons I 8 Criminal Appeals Act s 9(1). 9 Criminal Appeals Act s 9(3). 10 Criminal Appeals Act s 9(2). 11 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 (Samuels) [56] (Steytler P, Wheeler and Roberts-Smith JJA). 12 Criminal Appeals Act s 14(2). 13 Samuels [56] (Steytler P, Wheeler and Roberts-Smith JJA). 14 Criminal Appeals Act s 39(1). 15 Criminal Appeals Act s 39(3) and s 40(1)(e). -- 6 of 20 -- [2026] WASC 209 BYDDER J Page 7 will give, counsel for the appellant could have presented the evidence to the learned Magistrate. The evidence was not put before her Honour and it does not assist in determining whether the learned Magistrate erred in the manner alleged in the sole ground of appeal.16 However, the evidence is relevant if leave to appeal is granted and the appeal is allowed. 16 For those reasons, at the hearing of the appeal I granted leave for the affidavit to be admitted solely for the purpose of considering the orders that I should make if leave to appeal is granted and the appeal is allowed. The ground of appeal 17 The appellant appeals on one ground: By summarily reducing the amount of costs sought by the Appellant from $4,400.00 to $2,000.00, the learned Magistrate erred in law pursuant to section 8 of the Official Prosecutions (Accused Costs) Act 1973, or section 67(5) of the Criminal Procedure Act 2004 in that she did not adjourn the issue of quantum of costs to chambers when such request was made by Counsel for the Appellant and, therefore, did not give Counsel for the Applicant the opportunity to explain how the requested legal costs sought were incurred by the Appellant. 18 The appeal is therefore confined to whether the learned Magistrate erred in law by not adjourning the issue of quantifying costs to chambers under s 8 of the Accused's Costs Act, thereby denying the appellant the opportunity to be heard on the question of costs. At the hearing of the appeal, counsel for the appellant confirmed that the ground of appeal was confined in this way and, for example, did not embrace an allegation that the learned Magistrate failed to give adequate reasons for her Honour's decision.17 The appellant's submissions 19 The appellant submits that: (a) the appellant is a successful accused within the meaning of the Accused's Costs Act and as such was entitled to her properly incurred costs under s 5 of that Act and s 67 of the Criminal Procedure Act; 16 Compare Bell v Velios [2016] WASC 247 (Bell) [8] - [9] (Le Miere J); Lockett v Commissioner of Consumer Protection [2017] WASC 358 [46] - [50] (Hall J). 17 Transcript of appeal hearing on 20 May 2026 (ts) 13 - 14. -- 7 of 20 -- [2026] WASC 209 BYDDER J Page 8 (b) as the appellant was successful by reason of a decision of the Magistrates Court, the Magistrates Court was to make an order as to the amount of the appellant's costs; (c) the court may order that a successful accused is not entitled to all or part of her costs in circumstances identified by s 6 of the Accused's Costs Act, but none of those circumstances applied to this case; (d) the question of costs or the amount of costs may be adjourned to chambers under s 8 of the Accused's Costs Act; (e) the scale of costs is set out in the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2024 (2024 Determination); (f) where there was a question as to the quantum of costs, notwithstanding that the court has a discretion about whether to adjourn a costs question to chambers under s 8 of the Accused's Costs Act, it was incumbent on the learned Magistrate to adjourn the matter of costs to chambers as a matter of procedural fairness and counsel for the appellant had applied for such an adjournment; (g) there was no apparent reasoning as to how the learned Magistrate fixed the sum of $2,000 for costs, when the properly incurred costs of $4,400 sought by the appellant had been clearly stated by her counsel and those costs fell within the scale set out in the Determination; (h) because the appellant was entitled to her costs as a successful accused and her costs did not exceed the scale, those costs should have been awarded subject to them being taxed (which was not considered); (i) it can be deduced from the transcript that: (i) the learned Magistrate recognised the appellant's entitlement to an award of costs in her favour in accordance with the legislation and the scale; (ii) there is nothing to support a reduction in the award of costs because of the conduct of the appellant or her counsel; -- 8 of 20 -- [2026] WASC 209 BYDDER J Page 9 (iii) the reduced award of costs was made by the learned Magistrate without hearing submissions from the appellant's counsel as to the appropriate amount of costs and without regard to the appellant's counsel's request that the question of costs be adjourned to chambers; (iv) the learned Magistrate gave no reasons for how her Honour arrived at a costs award of $2,000; and (v) in all the circumstances, the appellant was denied the procedural fairness afforded by s 8 of the Accused's Costs Act; and (j) in light of the above and the principles set out in Fairhead v Bathurst,18 the learned Magistrate erred by summarily reducing the amount of costs sought by the appellant without giving reasons, or giving an unsubstantiated reason, and by not adjourning the issue of costs to chambers when a request to do so was made by counsel for the appellant. The respondent's submissions 20 The respondent submits that: (a) the power to award costs is governed by s 67 of the Criminal Procedure Act which refers to the Accused's Costs Act and provides that a successful accused is generally entitled to their costs; (b) the appellant is a successful accused for the purposes of the Accused's Costs Act and is entitled to her costs provided that three conditions are satisfied, which may be summarised as follows: (i) the costs must be properly incurred by the accused in the sense that they have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination; (ii) the expenses are due and payable, or paid, by the accused to another person or as court fees; and 18 Fairhead v Bathurst [2008] WASC 209 (Fairhead). See in respect of the appellant's reliance on Fairhead ts 9 - 12, 18. -- 9 of 20 -- [2026] WASC 209 BYDDER J Page 10 (iii) the amount of costs ordered, other than for court fees, are in accordance with the scale fixed from time to time by a cost determination; (c) item 6 of Table C in the 2024 Determination provides that the allowance for preparation when the trial does not proceed or the prosecution offers no evidence is 'an amount which is reasonable in the circumstances'; (d) a court cannot in its discretion award costs less than the full amount of properly incurred expenses that are proved, but a discretion arises when the court considers: (i) whether expenses were 'properly incurred'; and (ii) whether costs sought under item 6 of Table C of the 2024 Determination 'for preparation where the trial does not proceed' are 'reasonable in the circumstances'; (e) when an appeal involves a discretionary judgment, the appeal court must be satisfied that the magistrate acted upon a wrong principle, mistook the facts, had regard to an irrelevant consideration, failed to have regard to a relevant consideration or the decision on the facts must be so unreasonable or plainly unjust that the appeal court can infer error in the exercise of the discretion; (f) in appeals solely against the quantum of a costs order, appeal courts are reluctant to interfere unless significant errors are found; (g) there is no requirement for magistrates to adjourn the question of costs to chambers under s 8 of the Accused's Costs Act; (h) the Magistrates Court is a court of summary jurisdiction, proceedings in that court must be dealt with efficiently and the decision to adjourn the costs to chambers is a discretion for the magistrate to exercise as they see fit; (i) a magistrate may apply a broad-brush approach to fixing costs and in doing so make sufficient inquiries and possess whatever information is required to ensure that the award of costs is logical, fair and reasonable; -- 10 of 20 -- [2026] WASC 209 BYDDER J Page 11 (j) the reasons given by a magistrate may be shortly stated and not developed in great detail so long as they disclose the essential grounds on which the decision is made; (k) it is clear from the transcript that the learned Magistrate enquired about and considered the nature of the case and the work undertaken by the appellant's counsel prior to awarding costs; (l) the learned Magistrate's decision not to adjourn costs to chambers occurred in a context where the appellant's counsel had the opportunity during the hearing before her Honour to explain the costs sought in the nature of the work undertaken; (m) the learned Magistrate summarised her reasoning when asked by the appellant's counsel to do so on the basis that it was an oath-on-oath case with a child witness interview and transcript and involved no error of law; (n) Fairhead is distinguishable because in that case there was no evidence of what had been considered by the magistrate when awarding $5,000 in costs in the face of an application for $12,200 in costs and a request that any issues as to costs be reserved to chambers, such that on appeal this court concluded that no reasons were given for the reduction which gave rise to error; (o) in this case the transcript of the hearing before the learned Magistrate shows that counsel for the appellant was asked for a schedule of costs and when he informed her Honour that there was no schedule, the learned Magistrate enquired about the nature of the case and the preparation undertaken before determining the amount of costs and went on to provide reasons for her Honour's decision; and (p) the learned Magistrate made no error in the way her Honour determined the costs to award at the hearing or, if the learned Magistrate did make an error, it did not result in any 'substantial miscarriage of justice' within the meaning of s 14(2) of the Criminal Appeals Act. -- 11 of 20 -- [2026] WASC 209 BYDDER J Page 12 Consideration The entitlement of a successful accused to costs 21 Section 67(1) of the Criminal Procedure Act provides: Subject to the Official Prosecutions (Accused's Costs) Act 1973 and this section, a successful party to a prosecution is entitled to the party's costs. 22 As I have noted (and as the parties accepted), the appellant is a 'successful accused' within the meaning of the Accused's Costs Act. 23 Section 5 of the Accused's Costs Act relevantly provides: (1) Subject to this Act, a successful accused is entitled to his costs. (2) Where an accused is successful by reason of a decision of the summary court only, the summary court shall make an order as to the amount of his costs therein but the accused is not entitled to those costs unless and until the time for appeal therefrom has expired or an appeal therefrom is resolved in his favour. … (5) The amount of costs ordered, other than court fees, shall be in accordance with the scale fixed from time to time by a legal costs determination made under the Legal Profession Uniform Law Application Act 2022 section 133. 24 The relevant scale of costs is set out in Table C of the 2024 Determination (scale). 25 It is also important to note the definition of the term 'costs' in s 4(1) of the Accused's Costs Act: costs means any expenses that - (a) are properly incurred by an accused in an official prosecution; and (b) are due and payable, or paid, by the accused to another person or as court fees 26 Section 6 of the Accused's Costs Act authorises a court to order that a successful accused is not entitled to all or part of her costs in certain circumstances. It is not suggested that any of those -- 12 of 20 -- [2026] WASC 209 BYDDER J Page 13 circumstances apply to this case and the transcript does not suggest that s 6 played any part in the learned Magistrate's costs decision.19 27 Absent an order under s 6 of the Accused's Costs Act, as Le Miere J explained in Bell20 an order will be made in the sum of the costs incurred by the successful accused if each of three conditions is satisfied: (a) the costs have been properly incurred by the accused, in the sense that they must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination;21 (b) the costs are due and payable, or have been paid, by the accused to another person or as court fees; and (c) the amount of costs ordered, other than for court fees, must be in accordance with the scale fixed from time to time by a costs determination - in this case, Table C of the 2024 Determination.22 28 To the extent that costs sought by a successful accused do not satisfy one or more of these criteria, they should not be awarded to the accused. That outcome follows from the definition of 'costs' in s 4(1) of the Accused's Costs Act, together with the terms of s 67(1) of the Criminal Procedure Act and s 5 of the Accused's Costs Act. It does not depend on the operation of s 6 of the Accused's Costs Act, which is concerned with disentitling a successful accused to all or part of her costs in the circumstances provided by s 6. 29 A court may determine the costs to which a successful accused is entitled immediately after the event occurs that makes the accused a 19 See also the Criminal Procedure Act s 67(4). It is not suggested the subsection is applicable to this case. 20 Bell [4]. 21 Bell [4] (Le Miere J). In that paragraph of Bell, his Honour referred to Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418 [60] - [61]. Those paragraphs appear in the judgment of Wallwork J, who agreed with the majority that the costs appeal before the Full Court should be allowed, but dissented as to the amount of costs that should have been awarded. Wallwork J's observations at [60] - [61] are consistent with the judgment of Steytler J (especially at [163] - [164]), with whom Kennedy J agreed. 22 Subject to the operation of the 2024 Determination cl 9, which provides for such increased costs as are reasonable in the circumstances to be awarded in complex matters or matters involving a high degree of skill or urgency, or Senior Counsel. -- 13 of 20 -- [2026] WASC 209 BYDDER J Page 14 successful accused.23 However, the court may instead adjourn the question of costs. Section 8 of the Accused's Costs Act provides:24 The court may adjourn to chambers the question of costs, or the amount thereof, under this Act to enable the making of submissions and the tendering of evidence, including affidavit evidence, on that question. 30 The court cannot award costs less than the full amount of properly incurred expenses that are proved.25 However, the court's decision is discretionary as to whether: (a) costs are properly incurred, in the sense of having been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination; or (b) costs sought under item 6 of the scale are reasonable in the circumstances.26 This appeal is concerned with procedural fairness rather than the quantum of costs awarded or any discretionary decision on costs 31 The respondent has taken me to the principles applicable to appeals from a discretionary decision and appeals that are concerned solely with the quantum of costs.27 However, in substance this is not an appeal from a discretionary decision or concerned solely with the quantum of costs, but rather an appeal alleging a denial of procedural fairness. 32 While the amount of costs fixed by the learned Magistrate is no doubt the impetus for the appeal being brought, as appears from the ground of appeal and was confirmed by counsel for the appellant, this appeal is concerned with whether the learned Magistrate failed to accord procedural fairness to the appellant on the question of costs in a particular way: that is, by not adjourning the question of costs to give 23 That is, acquittal of the charge (other than on account of mental impairment), discharge from the charge under s 128(2) or (3) of the Criminal Procedure Act, dismissal of the charge for want of prosecution (other than in the circumstances set out in s 4(2)(c)) or conviction of the charge being set aside: Accused's Costs Act s 4(2)(a). 24 See also the Criminal Procedure Act s 67(5), s 67(6). 25 Bell [5] (Le Miere J); Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565 [4] (McKechnie J). 26 Bell [5] (Le Miere J). See also Norton v Morphett (1995) 83 A Crim R 90 (Victorian Court of Appeal) (Norton), 99 (Phillips JA, with whom Ormiston and Hayne JJA agreed), 103 (Hayne JA, with whom Ormiston JA also agreed). While in Norton the discretion conferred on the magistrate was wider than the discretion conferred on the learned Magistrate by the Accused's Costs Act, that does not detract from the discretionary nature of decisions on whether costs are properly incurred or reasonable in the circumstances. 27 As to those principles, see Bell [6] - [7] (Le Miere J) and the cases cited therein. -- 14 of 20 -- [2026] WASC 209 BYDDER J Page 15 the appellant time to tender evidence and make submissions on the question of costs. Fairhead 33 In support of that ground of appeal, the appellant relied on Fairhead. 34 In Fairhead, the appellant was one of four persons jointly tried in the Magistrates Court. The Magistrates Court reserved its decision and the appellant was subsequently acquitted. The appellant's counsel applied for costs of $12,200, but without any detailed breakdown of the costs sought. The prosecution made no submission on costs. The court awarded costs of $5,000. 35 The appellant in Fairhead appealed. No reasons could be located for the Magistrates Court's decision, but it could be discerned from the record before the Supreme Court that: (a) the Magistrates Court's costs order recognised an entitlement to costs in accordance with the legislation and the scale; (b) no factor was suggested as justifying a reduction or denial of costs due to the conduct of the appellant in defending the prosecution; and (c) the order was made without any submission on costs by the prosecution and without regard to the request that any question as to costs be reserved to chambers.28 36 In those circumstances, EM Heenan J considered that he had to draw the conclusion that there were not reasons given for the reduction of the costs from the amount sought to the amount awarded nor for refusing the application to determine any controversy about costs in chambers pursuant to the legislation.29 37 His Honour allowed the appeal on the basis either that there had been an error in substance or an error in failing to give reasons for the decision.30 38 In this appeal, I do have the transcript of the hearing before the learned Magistrate. As the respondent submitted, the learned Magistrate 28 Fairhead [12] (EM Heenan J). 29 Fairhead [13] (EM Heenan J). 30 Fairhead [14] (EM Heenan J). -- 15 of 20 -- [2026] WASC 209 BYDDER J Page 16 gave brief reasons for fixing costs at $2,000. The lack of reasons in Fairhead formed the basis for EM Heenan J allowing that appeal. To that extent, this appeal is distinguishable from Fairhead. 39 However, this appeal does share some features with Fairhead. (a) Despite it being (at least) likely in Fairhead that an application for costs would be made if the accused was acquitted, counsel did not attend with a schedule or other details explaining the costs applied for. In this case, it was similarly (at least) likely that the learned Magistrate would have determined the charge against the appellant on the day of the hearing, such that the opportunity to apply for costs would arise on that day. Counsel did not attend with a schedule or other details supporting the costs application. (b) In making a costs order, the learned Magistrate recognised that the appellant was entitled to costs and there was no suggestion that the appellant's entitlement should be reduced or denied due to her conduct. (c) The learned Magistrate fixed costs at $2,000 without any submission on costs by the prosecution and without regard to the request by counsel for the appellant that any question as to costs be reserved to chambers. 40 Those features do not bring this appeal within any principle identified in Fairhead. Instead, it is necessary for me to consider whether there was a denial of procedural fairness on the record before the court in this appeal. The ground of appeal is made out 41 The learned Magistrate was required to accord procedural fairness to the appellant on the question of costs. Subject to the proviso under s 14(2) of the Criminal Appeals Act, the appeal must succeed if her Honour failed to do so. 42 In general terms, the appellant had an opportunity to be heard on the question of costs after her counsel applied for costs at the hearing before the learned Magistrate on 2 October 2025. The case appears to have been listed for no more than a day (and it may have been listed for -- 16 of 20 -- [2026] WASC 209 BYDDER J Page 17 less than a day) and there appears to have been no more than two witnesses that would have been called if the case had been tried.31 43 As counsel for the appellant accepted, there was a real prospect, if the case had been tried, that the learned Magistrate would have heard and determined the charge against the appellant on that day. It was likely that the question of costs would also have arisen for determination on that day.32 44 As I noted in my ruling on whether leave should be granted to the appellant to rely on Mr Macfarlane's affidavit in the appeal (see [12] - [16] above), the information necessary to prepare and tender a schedule into evidence was available. In my respectful opinion, counsel for the appellant should have been in a position to address the learned Magistrate on his application for costs when he made that application. 45 The obligation to accord procedural fairness required that an opportunity be given to the appellant to tender evidence and make submissions on the question of costs. The obligation did not extend to ensuring that the appellant made good use of that opportunity. 46 Having said that, in my respectful opinion what occurred at the hearing on 2 October 2025 involved a failure to accord the appellant procedural fairness on the question of costs. After counsel for the appellant applied for costs in the sum of $4,400 and was asked by the learned Magistrate if he had a schedule, counsel said:33 No. I haven't brought anything with me because I was simply expecting to go to trial today. If you want to adjourn the matter to Chambers, I will deal with it. 47 The learned Magistrate did not engage with whether the question of costs should be adjourned or ask counsel for the appellant why he sought $4,400 in costs. There was instead a brief exchange between her Honour and counsel for the appellant on the number of witness statements on the brief, the nature of the case as an 'oath-on-oath case' and how disclosure had been ordered to occur. After that brief exchange, the learned Magistrate fixed costs at $2,000. 48 I note that after the learned Magistrate had given brief reasons for fixing costs at $2,000, counsel for the appellant sought to 'put on record' 31 ts 6. 32 ts 6 - 7. 33 Transcript of the hearing before the learned Magistrate on 2 October 2025, 2. -- 17 of 20 -- [2026] WASC 209 BYDDER J Page 18 that he had applied for the question of costs to be adjourned so that he could be given an opportunity to prove the costs. It is unclear from her Honour's response whether the learned Magistrate had appreciated before then that counsel for the appellant had made such an application. 49 While the application could perhaps have been made more clearly, the possibility of adjourning the question of costs had been raised and at no time during the brief hearing before the learned Magistrate was counsel for the appellant given an opportunity to explain why he sought costs in the sum of $4,400. Even allowing for the matters that the learned Magistrate did raise with counsel for the appellant and the fact that counsel for the appellant should have been in a position to address the learned Magistrate on his application for costs when he made that application, in my respectful opinion he was not given the opportunity to make submissions in support of his application for costs either at the hearing or by way of adjournment of the question of costs. 50 It follows, in my respectful opinion, that the ground of appeal has been made out. The learned Magistrate failed to accord the appellant procedural fairness on the question of costs, including by not engaging with the possibility of adjourning the question of costs after it had been raised by counsel for the appellant. The proviso 51 As the respondent submitted, it does not immediately follow that the appeal should be allowed. Section 14(2) of the Criminal Appeals Act relevantly provides that '… even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.' 52 This is not a case where the proviso should be applied. As I noted earlier, the appeal does not directly challenge the quantum of costs awarded or any discretionary decision made by the learned Magistrate. Instead, the appeal is concerned with an alleged denial of procedural fairness on the question of costs. That allegation having been made out, I do not consider that 'no substantial miscarriage of justice has occurred'. -- 18 of 20 -- [2026] WASC 209 BYDDER J Page 19 Disposition 53 For those reasons, leave to appeal should be granted, the appeal should be allowed and the costs order of the learned Magistrate should be set aside. 54 It follows that the question of costs in the Magistrates Court must be revisited and the questions of costs of the appeal must be considered, having regard to the options identified by EM Heenan J in Fairhead.34 I will hear the parties on those matters. A further observation 55 My reasons for allowing this appeal should not be understood as standing for the proposition that there will be a denial of procedural fairness whenever a question of costs is not adjourned to chambers after that possibility has been raised or an adjournment has been applied for by a party or the party's counsel. 56 Adjourning a question of costs under s 67(5) of the Criminal Procedure Act and s 8 of the Accused's Costs Act provides a way, but not the only way, of according procedural fairness to the parties on that question. Counsel should not assume that a court must adjourn a question of costs merely because they are not prepared to make submissions or tender evidence in support of a costs application when they should have been prepared to do so. 57 In many cases it will be possible for procedural fairness to be accorded to the parties on a question of costs immediately after the event occurs that makes the accused a successful accused. Given the demands on the Magistrates Court, in many cases that may well be the most appropriate time to hear and determine an application for costs. 34 Fairhead [14] - [22]. -- 19 of 20 -- [2026] WASC 209 BYDDER J Page 20 I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. ST Associate to the Honourable Justice Bydder 2 JUNE 2026 -- 20 of 20 --