REYNOLDS -v- NICHOLSON [2026] WASC 190

[2026] WASC 190 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : REYNOLDS -v- NICHOLSON [No 2] [2026] WASC 190 CORAM : MUSIKANTH J HEARD : ON THE PAPERS DELIVERED : 14 MAY 2026 FILE NO/S : SJA 1042 of 2024 BETWEEN : KELLAN JOHN REYNOLDS Appellant AND JAMIE NICHOLSON Respondent ON APPEAL FROM: For File No : SJA 1042 of 2024 Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATES K M THOMPSON & B P MAHON File Number : AR 15712 - 15714/2023 Catchwords: COSTS - Official Prosecutions (Accused's Costs) Act 1973 (WA), s 7(1) - Partly successful accused - Power to award 'additional costs' on appeal - Meaning of 'additional costs' - None shown to have been incurred - Turns on own facts -- 1 of 10 -- [2026] WASC 190 Page 2 COSTS - Official Prosecutions (Accused's Costs) Act 1973 (WA), s 7(1) - Exercise of discretion - Where pseudolaw / strawman duality theories advanced - Where success on appeal solely due to additional ground raised by court after judgment reserved - Where all other grounds devoid of merit - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA) Official Prosecutions (Accused’s Costs) Act 1973 (WA), s 7 Category: B Representation: Counsel: Appellant : No appearance Respondent : No appearance Solicitors: Appellant : In Person Respondent : State Solicitor's Office Case(s) referred to in decision(s): Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 Cominelli v Travaglini [2015] WASC 437 Crilly v Gardiner [2011] WASC 140 Green v Espinoza [1998] WASCA 118 Mohammadi v Bethune [2018] WASCA 98 O'Dea v Fletcher [1992] WASC 635 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Pearson v Connor [2024] WASCA 49 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Reynolds v Nicholson [2026] WASC 15 -- 2 of 10 -- [2026] WASC 190 Page 3 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 -- 3 of 10 -- [2026] WASC 190 MUSIKANTH J Page 4 MUSIKANTH J: 1 The appellant was partly successful in appealing a decision against his convictions on road traffic offence charges.1 2 He was partly successful only because I upheld a ground of appeal identified by the court after judgment was reserved. The ground had formed no part of the appellant's original grounds, and the appellant advanced no submissions in support of it afterwards. 3 Because of my decision to uphold this additional ground, the appellant's convictions on two of the three charges against him will be set aside and judgments of acquittal entered. 4 The appellant, being a 'partly successful accused' within the meaning of the Official Prosecutions (Accused's Costs) Act 1973 (WA) (Act), now seeks an order for costs in his favour pursuant to s 7 of the Act. 5 For the reasons which follow, there will be no order as to costs. Power to award costs 6 Section 14(1)(h) of the Criminal Appeals Act 2004 (WA) empowers the court to make an order as to the costs of an appeal brought under it and the costs of proceedings in the court of summary jurisdiction from which the appeal lies. 7 However, save in circumstances not presently relevant,2 a costs order cannot be made where, as here, the respondent is a police officer acting in an official capacity.3 8 Nonetheless, the appellant may have some limited right to seek costs pursuant to the Act. 9 The purpose and object of the Act include a general purpose to confer on an accused who is successful in a summary court by reason of an acquittal order (or a dismissal for want of prosecution) the ability to claim their costs.4 10 Under the Act: 1 Reynolds v Nicholson [2026] WASC 15. 2 Criminal Appeals Act 2004 (WA), s 20(3). 3 Criminal Appeals Act, s 20(2). 4 Mohammadi v Bethune [2018] WASCA 98 [29(6)] (Martin CJ, Mazza & Beech JJA). See also Act, s 4(1) (definitions of 'accused', 'official prosecution' (read with the definition of 'appeal'), and 'costs'). -- 4 of 10 -- [2026] WASC 190 MUSIKANTH J Page 5 (a) 'accused' means a person charged with an offence in an 'official prosecution';5 (b) 'costs' means any expenses properly incurred by an 'accused' in an 'official prosecution' and which are due and payable, or paid, by the accused to another person or as a court fee;6 and (c) 'official prosecution' includes proceedings on appeal against a decision of a summary court given in proceedings against a person charged with an offence by a public official acting or purporting to act by virtue of their office.7 11 A 'successful accused' is presumptively entitled to their costs (as defined), with the only discretion being as to the amount to be awarded, unless there is a specific disentitlement to costs by the application of s 6.8 12 However, the presumption does not operate with respect to a 'partly successful accused',9 in which case any award of costs is, pursuant to s 7(1) of the Act: (a) confined to such 'additional costs' (if any) which have been incurred by the accused 'by reason of being charged with an offence or offences in respect of which [the accused] was successful'; and (b) in the court's discretion.10 13 The appellant is a 'partly successful accused' because he had been charged in a summary court with several offences in one prosecution notice and was successful (on appeal in this court) in respect of some (i.e. two) of those charges.11 14 It follows that, provided the appellant establishes he has actually incurred 'additional costs', any award of costs is in my discretion. 5 Act, s 4(1) (definition of 'accused'). 6 Act, s 4(1) (definition of 'costs'). 7 Act, s 4(1) (definition of 'official prosecution' read with definition of 'appeal'). 8 Act, s 5(1). See also Green v Espinoza [1998] WASCA 118, 5 (Anderson J). 9 Act, s 4(2)(b). 10 See also O'Dea v Fletcher [1992] WASC 635, 8 (Murray J). 11 Act, s 4(2)(b)(ii). -- 5 of 10 -- [2026] WASC 190 MUSIKANTH J Page 6 15 It goes without saying that, if enlivened, the discretion under s 7(1) must be exercised judicially, not arbitrarily or capriciously, and so as not to frustrate the legislative intent.12 16 That said, there is in my view little to suggest that the discretion is not otherwise 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view'.13 The asserted 'additional costs' 17 The appellant does not seek to recover any costs which may have been incurred before the summary court, but only his 'costs of the appeal so far as they relate to the issues/charges on which [he] succeeded',14 which he says comprise: (a) a total of $534.20 associated with obtaining transcripts and related expenses; (b) a total of $16.50 for printing / scanning (though this claim is not pressed beyond a fair allowance attributable to the successful charges/issues); and (c) a total of $18.00 for additional printing/photocopying costs incurred to comply with the court's 'in the costs process flowing from the successful additional ground'. 18 As an alternative to claiming the totals in [17(a)] and [17(b)], the appellant seeks two-thirds of those amounts. I infer this is because he succeeded in having two of his three convictions overturned. 19 I make the following observations concerning the amounts claimed by the appellant. 20 First, he deposes that the costs totalling the amount in [17(a)] were incurred 'for the purpose of prosecuting the additional ground concerning Exhibit 2 and the two charges on which [he] succeeded'.15 12 Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [22] (Gaudron & Gummow JJ). 13 Cf. Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492, 505 (Dixon J). 14 Appellant's minute of proposed orders dated 16 February 2026 [6]. Emphasis added. 15 Further affidavit of Kellan John Reynolds affirmed 8 April 2026 [6]. -- 6 of 10 -- [2026] WASC 190 MUSIKANTH J Page 7 21 However, according to the appellant's evidence, all these costs were incurred in December 2023 and July 2024. This was before the appellant commenced his appeal and in circumstances where the issue which would later become the subject of his additional ground of appeal: (a) formed no part of his original grounds of appeal, written submissions or oral submissions; and (b) was raised for the first time on 1 May 2025, after judgment was reserved, in correspondence from my associate to the parties. 22 Secondly, on the appellant's evidence the costs totalling the amount in [17(b)] were incurred in January 2026. This was shortly before judgment was delivered. By that time, no further activity in relation to the matter was required of either party to comply with any procedural rule or order of the court. 23 Thirdly, on the appellant's evidence the costs totalling the amount in [17(c)] were incurred in March and April 2026. This was after judgment was delivered. Given the timing, and the appellant's explanation, I infer these costs were incurred to comply with a procedural direction by the court to provide affidavit material in support of his additional costs claim. 24 By its terms, s 7(1) of the Act reads: 7. Partly successful accused may be awarded costs (1) Subject to this Act, where a partly successful accused satisfies the court that he incurred additional costs by reason of being charged with an offence or offences in respect of which he was successful, the court may order that he is entitled to those costs. … (Emphasis added) 25 Section 7(1) is to be construed in accordance with the well- established principles of statutory construction; being a process involving the attribution of objective meaning to the statutory text having regard to considerations of text, context and purpose.16 16 Pearson v Connor [2024] WASCA 49 [50] (Mitchell & Hall JJA, Seaward J) referring to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69]; Alcan (NT) Alumina -- 7 of 10 -- [2026] WASC 190 MUSIKANTH J Page 8 26 The word 'additional' appears only once in the Act (in s 7(1)). It is not defined. 27 The Macquarie Dictionary defines 'additional' as 'added' or 'supplementary',17 which in my view reflects its ordinary meaning. 28 In s 7(1), the word 'incurred' immediately precedes the words 'additional costs', while the expression 'by reason of' immediately follows. The latter expression necessarily imports a causative element. 29 Thus, for the appellant to show he has incurred 'additional costs' he must establish a clear causal connection between the costs he says he has incurred and the two charges in respect of which he was successful. 30 In my view, there is nothing in the wider context of s 7(1), the evident purpose of the provision or, for that matter, in the general purpose of the Act18 which tells against such a construction. 31 Indeed, it is a construction supported by the approach which appears to have underpinned the costs outcome in at least two earlier cases.19 32 On this construction, having regard to the observations in [20] to [23] above, none of the costs claimed by the appellant are, in my view, capable of being properly characterised as 'additional costs' within the meaning of s 7(1). 33 The appellant has therefore failed to satisfy me that he has incurred additional costs. 34 Accordingly, my discretion to award such costs is not enlivened. Discretion 35 If I am wrong in reaching my conclusion as to the meaning of 'additional costs', then I should indicate I would in any event not have exercised the costs discretion in favour of the appellant. Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 [14]; Mohammadi v Bethune [31] - [36]. 17 Macquarie Dictionary (definition of 'additional'). 18 See [9] above. 19 Cf. Crilly v Gardiner [2011] WASC 140 [23]ff (Murray J); Cominelli v Travaglini [2015] WASC 437 [57]ff (Chaney J). -- 8 of 10 -- [2026] WASC 190 MUSIKANTH J Page 9 36 By his notice of appeal, the appellant raised some 32 grounds. More than 100 points were advanced in his written submissions. And after the additional ground of appeal was added (at the court's invitation), he filed a meritless application seeking my recusal. 37 None of the appellant's original grounds of appeal enjoyed any prospect of success, and the arguments in support of them were fundamentally misconceived, confused and incoherent. 38 Perhaps most troubling of all was the fact that an overwhelming number of the appellant's arguments were premised on pseudolaw / strawman duality theories; theories which have been rejected by this and other courts on occasions too numerous to mention. 39 I wish to record that the appellant was a model of civility who treated the court with the utmost respect (despite the premise of some of his contentions). 40 Nonetheless, the fact remains that the appellant's promotion of misguided (and corrosive) theories, and the incoherence and sheer prolixity of his materials, contributed unnecessarily to the continuation of the proceedings and, unreasonably, to the consumption of scarce public resources. 41 These considerations, coupled with the matters summarised in [2] above, leads inevitably to the conclusion that it would have been quite inappropriate for any costs discretion to have been exercised in favour of the appellant. Disposition 42 For the foregoing reasons, there will be no orders as to costs. 43 I accordingly make the following final orders: (1) Leave to appeal be granted in respect of the additional ground of appeal relating to AR 15713/2023 and AR 15714/2023 as reflected in Order 1 of the court's orders of 20 June 2025 (additional ground of appeal). (2) The appeal be allowed to the extent of the additional ground of appeal. (3) The conviction and sentence in AR 15713/2023 be set aside and substituted with a judgment of acquittal. -- 9 of 10 -- [2026] WASC 190 MUSIKANTH J Page 10 (4) The conviction and sentence in AR 15714/2023 be set aside and substituted with a judgment of acquittal. (5) The appeal otherwise be dismissed. (6) There be no order as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. NH Associate to the Hon Justice Musikanth 14 MAY 2026 -- 10 of 10 --