Commissioner of Police v Antoniolli [2022] QCA 1

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of Police v Antoniolli [2022] QCA 1 PARTIES: COMMISSIONER OF POLICE (applicant) v ANTONIOLLI, Andrew Francis (respondent) FILE NO/S: CA No 16 of 2021 DC No 78 of 2019 DC No 2347 of 2019 DIVISION: Court of Appeal PROCEEDING: Application for Leave s 118 DCA (Criminal) – Further Order ORIGINATING COURT: District Court at Ipswich – [2020] QDC 318 (Lynch QC DCJ) DELIVERED ON: 28 January 2022 DELIVERED AT: Brisbane HEARING DATE: Heard on the papers JUDGES: Holmes CJ and Bond JA and Flanagan J ORDER: The applicant pay the respondent’s costs of the application on the standard basis. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL RULE: COSTS FOLLOW EVENT – GENERAL PRINCIPLES AND EXERCISE OF DISCRETION – where this court by a majority refused the applicant Commissioner of Police leave to appeal against a decision of a District Court judge setting aside the respondent’s convictions by a magistrate of fraud and attempted fraud – where all members of the court agreed that the administration of justice where there was an allegation of misappropriation of public money by public official was a question of public importance – where the application cannot be said to have been so misconceived in this respect as to warrant indemnity costs – where no other basis was identified for the award of indemnity costs – where there was nothing in the applicant’s institution or conduct of the application which was vexatious, unwarranted or unreasonable – where a mere lack of success cannot justify such an award – whether the costs of the application should be on the standard basis or on the indemnity basis Commissioner of Police v Antoniolli [2021] QCA 237, related -- 1 of 3 -- 2 COUNSEL: S J Farnden and S J Bain for the applicant S C Holt QC for the respondent SOLICITORS: Director of Public Prosecutions (Queensland) for the applicant Robertson O’Gorman for the respondent [1] HOLMES CJ: On 9 November 2021, this court by a majority (Bond JA and Flanagan J) refused the applicant Commissioner of Police leave to appeal against a decision of a District Court judge setting aside the respondent’s convictions by a magistrate of fraud and attempted fraud. I would have granted leave to appeal but dismissed the appeal. [2] The respondent now seeks his costs of the application on the indemnity basis or, alternatively, on the standard basis, arguing that the leave application was completely misconceived, because the applicant could not identify a basis on which to overturn the District Court judge’s finding of an absence of dishonesty. He contends that there is a public interest in not leaving a citizen worse off as a result of the State’s unmeritorious challenge to his acquittal. The applicant, on the other hand, optimistically and with an excruciating disregard for grammar, “seeks an order that costs fall where they lay”; or, in the alternative, that costs be assessed on the standard basis or fixed by the court. [3] A little background to the respondent’s submission is needed, because while it is the case that leave was refused on the ground identified, there was not complete unanimity as to that result. The case concerned certain purchases at charity auctions by the respondent as an Ipswich City Councillor. Such expenditure was governed by Council policy, and the District Court judge found that the respondent believed his practice of making auction purchases to be within the policy, so that dishonesty had not been proved. One of the appeal grounds concerned the District Court judge’s conclusion that the practice was not outside the policy. All judges found that the District Court judge had erred, as a matter of law, in the construction of the policy; where the majority and I differed was as to the consequentiality of that error. [4] Bond JA and Flanagan J did not consider that the error would justify overturning the trial judge’s finding that the respondent believed the practice within the policy, given the constraint applicable to an appeal in the strict sense (as this would be): that factual findings could be overturned only where there was no evidence to support them or the finding was unreasonable.1 First, their Honours did not consider that there was any logical connection between the proper construction of the policy and the conclusion to be drawn as to the state of the respondent’s belief. And second, even if there were such a link, their Honours said, there was not such a preponderance of evidence to the contrary as would make the finding unreasonable, and it could not be said that there was no evidence to support it. Since no basis had been shown to overturn the finding, dishonesty could not be established, and the appeal was doomed to failure. Accordingly, a grant of leave was not justified. [5] I, on the other hand, did regard the error of law as to the bounds of the policy as significant. That was because the District Court judge expressly took into account his construction of the policy and his conclusion that the respondent’s conduct fell 1 Commissioner of Police v Antoniolli [2021] QCA 237 at [119]. -- 2 of 3 -- 3 within it in deciding that he was not bound by the magistrate’s view of the respondent’s credit and reliability and that the magistrate’s finding of dishonesty should be overturned. The finding that the respondent believed his actions to fall within the policy was made in that context and was thus, in my view, contributed to by his Honour’s error of law as to the construction of the policy. Accepting that link, the relevant error was the error of law which infected his reasoning to his conclusions, and it was beside the point (in my thinking) whether the facts then found were unreasonable or lacking evidentiary basis.2 Accordingly, I considered that the ground of appeal had substance. However, I concluded that the magistrate’s decision was properly set aside on other grounds. [6] All members of the court agreed that the administration of justice where there was an allegation of misappropriation of public money by public official was a question of public importance.3 My differing view on the leave question shows at least (I hope) that it was a matter on which reasonable minds might differ. The application cannot be said to have been so misconceived in this respect as to warrant indemnity costs. No other basis was identified for the award of indemnity costs. There was nothing in the applicant’s institution or conduct of the application which was vexatious, unwarranted or unreasonable. A mere lack of success cannot justify such an award. [7] There is no material before the court which would enable it to fix an amount for costs. The respondent should have his costs of the application on the standard basis. [8] BOND JA: I agree with the Chief Justice. [9] FLANAGAN J: I agree with the Chief Justice. 2 As would be the case, by way of analogy, if a judge made findings of fact which were reasonable and supported by evidence but were made on the wrong standard of proof. 3 Commissioner of Police v Antoniolli [2021] QCA 237 at [8], [120]. -- 3 of 3 --