Bortic v Queensland Police Service [2018] QDC 22

DISTRICT COURT OF QUEENSLAND CITATION: Bortic v Queensland Police Service [2018] QDC 22 PARTIES: Ivan Bortic (Applicant) v Queensland Police Service (Respondent) FILE NO/S: D95/17 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: Maroochydore Magistrates Court DELIVERED ON: 2 March 2018 DELIVERED AT: Maroochydore District Court HEARING DATE: 24 November 2017 / 25 January 2018 JUDGE: Robertson DCJ ORDER: (25 January 2018): Reasons published: 2 March 2018 Appeal allowed in part. Respondent to pay appellants’ costs of summary trial fixed at $2000, and costs of the appeal fixed at $2675. CATCHWORDS: APPEAL/COSTS: where charges below dismissed after ruling on the voir dire as to the lawfulness of the appellant’s arrest, where Acting Magistrate refused to entertain an application for costs; where on appeal respondent’s position was that matter be remitted of that no order for costs be made; whether dismissal was on technical grounds, whether costs were just in all the circumstances. Legislation Justices Act (1886) ss 158, 158A, 222, 223(2), 225(2) Police Powers and other Responsibilities Act (2000) ss 633, 791 Cases Rowe v Kemper [2009] 1 Qd. R 247 SOLICITORS: Williamson and Associates for the appellant (Mr Sibley) -- 1 of 7 -- 2 Office of the Director of Public Prosecutions for the respondent (Ms Howard) [1] On 7 July 2017 acting Magistrate Wilkinson dismissed a charge against the applicant of contravening a direction pursuant to section 791 (2) of the Police Powers and other Responsibilities Act (2000) (the Act). The order for dismissal came after a voir dire in which the evidence of the arresting officer Senior Constable Sperling was heard, and a conversation which he had with the applicant which was videoed and recorded on 29 January 20017 was played to the court. The focus of the preliminary hearing was on whether the police officer had complied with section 633 of the Act as mandated by Rowe v Kemper [2009] 1 Qd. R 247. [2] In effect, that decision is authority for the proposition that for any subsequent arrest be lawful, after giving the direction (in this case to produce his driver’s licence) the police officer must, if practical give what is referred to as a dual warning, i.e. (a) it is an offence to fail to comply with a direction or a requirement unless the person has reasonable excuse; and (b) the person may be arrested to the offence. Pursuant to s 633 (3) of the Act the police officer must give the person a further reasonable opportunity to comply with the direction or the requirement. [3] It is common ground that the police officer did not in terms warn the applicant that it is an offence to fail to comply without a reasonable excuse. In that event, despite the prosecutor below submitting that the police officer had complied with the law, the acting magistrate found he had not, and although he did not say it, he implicitly found that the arrest was unlawful. As a result the prosecution offered no evidence on the charge and two breaches of the TORUM that followed the applicant’s arrest and transportation to the watch house. -- 2 of 7 -- 3 [4] Mr Sibley, who has acted for the applicant throughout, then said to the Acting Magistrate “we would like to be heard on the issue of cost”. His Honour said “I would not even entertain costs…on (sic) the circumstances. It is a very flimsy defence which you have got away with, or the defendant has, and it was just a slip up on the part of the officer. There is absolutely no order as to costs”. [5] There is no issue that “order” was an “order” enlivening the jurisdiction of this court to hear an appeal against it under s 222 (1) of the Justices Act (1886). His Honour’s blank refusal to even consider an application for costs and his words “there is absolutely no order as to costs” is an “order”. [6] The respondent in his outline dated 11 October 2017 conceded appealable error in that there was a denial of procedural fairness. Pursuant to s 225 (2) of the Justices Act this court has power to remit the matter back to the Magistrates court to rehear the application for costs, or on a rehearing to determine the costs application on its own merit. When the matter first came on for hearing on 24 November 2017 I gave leave to Mr Sibley to file his affidavit of 20 November 2017 which contains new evidence in terms of s 223 (2) of the Justices Act. That is not surprising given the Magistrate’s blanket refusal to even hear the appellant on the issue of costs. [7] The argument joined at the appeal hearing was whether or not I should remit the matter, or determine the application myself. As the transcript reveals, I determined to allow the appeal and exercise the cost discretion myself. As there was no evidence of quantum before me I invited further submissions from the parties which I have received and considered. On 25 January 2018 I allowed the appeal in part, and ordered the respondent to pay the applicant’s costs of the summary trial, fixed the $2,000 and the appeal fixed at $2,675. I indicated I would publish my reasons in due course. -- 3 of 7 -- 4 [8] The exercise of the cost discretion in these circumstances is governed by s 158 and 158A of the Justices Act and are (relevantly) in the following terms: “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. ….. 158A Exercise of discretion in relation to an award of costs (1) Despite s 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who was a police officer of 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 – ...… (d) 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. ……” [9] The relevant circumstances pertaining to the costs issue are summarised in paragraph 13 of the applicant’s outline filed on 15 August 2017. The summary does not in any significant way differ from the facts sworn to by Sargent Phillip John Stevens Senior Prosecutor employed by the Police Service in his affidavit annexed to the respondent’s supplementary outline filed 13 December 2017. I give leave for that evidence to be adduced as new evidence. [10] As early as 30 March 2017, the applicant’s solicitor wrote to the officer in charge of Maroochydore prosecutions in response to a question about case conferencing, and advised him that a hearing would need to be set as the defendant would not be pleading guilty to any charges. The defence case was put clearly at that time that the arrest was in breach of the safeguards as per Rowe v Kemper and that the defendant -- 4 of 7 -- 5 was not in lawful custody from the time of his purported arrest. No response was received to that email. [11] The matter had been set down for trial on 15 June 2017, and the defendant and his solicitor attended at the court on that day. It was adjourned at the request of the prosecutor because the primary prosecutor was ill and the alternative had been sent home sick. As a result there was no prosecutor available. The Magistrate on that day made a point that the applicant had requested and not received particulars, and had requested a statement from another police officer which also had not been received. Costs of that day were reserved. After the adjournment Mr Sibley had a long discussion with the then acting officer in charge of Maroochydore prosecutions and explained in detail his client’s position and the officer in charge undertook to review the case. [12] In the week of 19 June 2017 the officer in charge contacted Mr Sibley by phone and said that he had conducted a review of the evidence, and offered to drop the later offences of failing to provide a specimen (road side and watch house), if the applicant pleaded guilty to the contravening a direction charge under s 791 (2) of the Act. The applicant rejected this and the prosecution resolved to proceed with the prosecution. [13] Mr Sibley made detailed written submissions as to why the original direction was flawed in the light of the decision of Rowe v Kemper, and a Sargent Stevens frankly concedes in his affidavit, the prosecution was satisfied that the warning was given sufficiently in accordance with s 633. [14] As early as 30 March 2017 Mr Sibley made it clear that his client’s case was that 633 had not been complied with. The approach of the parties to have that preliminary legal matter determined on the basis of a voir dire was sensible, but once the -- 5 of 7 -- 6 Magistrate held against the respondent on the key issue it followed that all charges would be dismissed. In reference to the forerunner of s 633 in the Act, Homes JA (as her honour then was) wrote in Rowe v Kemper (at [76]): “I have, however, come to the conclusion that those requirements, and whether they have been observed, are relevant to whether any offence of contravening the direction is committed. Among the purposes of the Act set out in s 5 is: “(e) to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act”. The requirements of s 391 (the forerunner to s 633), described in the section’s heading as “Safeguards”, meet that purpose. It is consistent with the notion of rights protection that an individual to whom the direction is given should not be regarded as having contravened it until those safeguard requirements have been observed.” [15] In all the circumstances, it cannot be realistically argued that in relying successfully upon the safeguards imposed on police officers under the Act, the dismissal of the charges was on “technical” grounds as the respondent now submits. [16] Although conceding that his Honour denied the applicant procedural fairness, by in effect refusing to hear Mr Sibley on the issue of costs, the respondent nevertheless argued that the issue of cost should be remitted which I have rejected, and alternatively, that the discretion should be exercised on the basis that there be no order for costs, on the grounds that the dismissal was for technical reasons, which I have also rejected. [17] As is conceded, the matter was listed for hearing on 15 June 2017, but did not proceed because the prosecutor was sick. By then, the real issue was compliance with 633 of the Act, so, in my opinion, it would not be “just” to allow the appellant $875 for a second hearing day under the Justice Regulation 2004 Schedule 2. It is appropriate to allow $250 as a mention under the Schedule. The costs of the summary trial therefore should be $2000. -- 6 of 7 -- 7 [18] Given that the appeal was adjourned on 24 November 2017 to the 25 January 2018 when it was allowed, to enable the parties to file material relating to quantum, it would not be appropriate to allow an uplift of 20% as submitted by Mr Sibley. The costs of the appeal are assessed at $2,675. -- 7 of 7 --