Crossman v Queensland Police Service (No. 2) [2019] QDC 2

DISTRICT COURT OF QUEENSLAND CITATION: Crossman v Queensland Police Service (No. 2) [2019] QDC 2 PARTIES: IAN NORMAN CROSSMAN (appellant) v QUEENSLAND POLICE SERVICE (respondent) FILE NO: 195/17 DIVISION: Appellate PROCEEDING: Appeal ORIGINATING COURT: Magistrates Court at Mossman DELIVERED ON: 25 January 2019 DELIVERED AT: Cairns HEARING DATE: On the papers JUDGE: Fantin DCJ ORDER: The appellant pay the respondent’s costs of the appeal fixed at $1,800 to be paid to the Registrar of the District Court at Cairns within 28 days from the date judgment is delivered, to be paid over by the Registrar to the respondent. CATCHWORDS: CRIMINAL LAW – APPEAL – COSTS - whether appellant should pay respondent’s costs of unsuccessful appeal Legislation Justices Act 1886 (Qld) ss 226, 232, 232A Justices Regulation 2014 (Qld) schedule 2 Cases Crossman v Queensland Police Service [2018] QDC 267 Latoudis v Casey (1990) 170 CLR 534 Crabbe v Queensland Police Service [2013] QDC 122 SOLICITORS: The appellant appeared on his own behalf The Office of the Director of Public Prosecutions for the respondent [1] On 17 December 20181 I made orders dismissing the appeal. I gave the appellant the opportunity to make further submissions with respect to the respondent’s application for costs of the appeal. This is my decision on the application for costs. 1 Crossman v Queensland Police Service [2018] QDC 267 -- 1 of 3 -- 2 [2] The appellant, a professional driver, was issued with an Infringement Notice for speeding. He elected to go to trial. He was convicted, fined $600 and ordered to pay costs of $89.90. A conviction was recorded. The magistrate exercised his discretion not to impose a period of disqualification. [3] The appellant appealed against his conviction. He relied upon multiple grounds of appeal. None of them were successful. [4] The respondent seeks costs in the sum of $1,800, calculated in accordance with s 232A(1) of the Justices Act 1886 (Qld) and Schedule 2, Part 1(4) and Part 2(1) of the Justices Regulation 2014 (Qld). [5] On 8 January 2019 the appellant provided written submissions with respect to costs. [6] Section 226 of the Justices Act 1886 (Qld) confers a broad discretion with respect to the costs of the appeal: the court may make such order as to costs to be paid by either party as the court may think just. [7] The discretion to award costs must be exercised judicially, that is, the court cannot act arbitrarily or upon the ground of some misconduct wholly unconnected with the appeal, or of some prejudice.2 [8] A cost is to be allowed only to the extent to which incurring the cost was necessary or proper to achieve justice or to defend the rights of the party, or the cost was not incurred by over-caution, negligence, mistake or merely at the wish of the party: Schedule 2, Part 1(3) of the Justices Regulation 2014 (Qld). [9] The appellant’s written submissions with respect to costs raise a number of issues, none of which are relevant to the exercise of discretion on costs in this appeal: 1. He submits that, despite conducting “six applications before the District Court of Queensland with five proceeding on to the Court of Appeal”, this is the first time the respondent has raised any question of costs; 2. He complains about a media report of the decision; 3. He complains about delays in the Magistrates Court trial; 4. He submits that the total amount he will have to pay for the fine, costs in the Magistrates Court and costs in this court will far exceed the amount of the original infringement notice, which was $235. He seeks to reargue a point considered and rejected in my earlier decision;3 5. He complains about the magistrate’s decision, as well as the decisions in his previous unsuccessful appeals; and 6. He submits that an order for costs would be perceived as an additional deterrent or conviction, giving rise to an apprehension of bias in a fair minded lay observer. 2 Latoudis v Casey (1990) 170 CLR 534 at 569 3 Crossman v Queensland Police Service [2018] QDC 267 at [87]-[92] -- 2 of 3 -- 3 [10] As to the last ground above, the appellant misunderstands the purpose of a costs order. Costs are not awarded to punish the unsuccessful party: they are to compensate the successful party against its costs reasonably incurred in resisting the appeal.4 [11] The respondent claims scale costs of $1800 for a single item: “Instructions and preparation for the hearing, including attendance on day 1 of the hearing” pursuant to Schedule 2, Part 1(4) and Part 2(1) of the Justices Regulation 2014 (Qld). The amount is properly claimable. [12] The appellant raised multiple grounds of appeal and sought to adduce fresh evidence. The respondent was required to consider each ground of appeal, various aspects of the legislation and other decisions, as well as the fresh evidence. The matters raised were not without complexity, as appears from my previous reasons. The respondent prepared a written outline of argument and a further written outline in reply to the appellant’s supplementary outline. The respondent instructed an officer of the ODPP who appeared on the appeal and made oral submissions. There was no conduct by the respondent disentitling it to costs. [13] The appellant was wholly unsuccessful on appeal. The appeal did not raise any relevant issue of public interest. It is apparent that the appellant has strong views about the speed camera system, but the legislature has provided for the operation of such a system in Queensland, and any complaints of that nature are matters which ought to be dealt with at a political level. The courts cannot entertain any challenge to the appropriateness or fairness of legislation.5 [14] The fact that the appellant has strong views about the speed camera system and elected to represent himself does not shield him from exposure to a costs order. [15] I am satisfied that the respondent’s costs of instructing on, preparing for, and attending the hearing of the appeal were necessary and proper. There is no reason why the respondent should not have its costs of the appeal. [16] I am satisfied it is appropriate to exercise my discretion to order that the appellant pay the respondent’s costs of the appeal fixed in the sum of $1800. [17] Pursuant to s 232(1) Justices Act 1886, I must direct that such costs be paid to the registrar to be paid over to the respondent and state the time within which the costs are to be paid. There is no suggestion the appellant is impecunious. At the time of the trial and appeal he was employed as a professional driver. No submission has been made that he will have difficulty complying with a costs order. In the circumstances I am of the view that the costs ought be paid to the registrar within 28 days. 4 Latoudis v Casey (1990) 170 CLR 534 at 566–7, 568, 569 5 Crabbe v Queensland Police Service [2013] QDC 122 at [41] per McGill SC DCJ -- 3 of 3 --