Commissioner of the Police Service v Hall & Anor [2005] QSC 388

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of the Police Service v Hall & Anor [2005] QSC 388 PARTIES: THE COMMISSIONER OF THE POLICE SERVICE (applicant) v ELIZABETH A HALL, MAGISTRATE (first respondent) TREVOR JOHN McKEY (second respondent) FILE NO/S: BS No 5906 of 2005 DIVISION: Trial PROCEEDING: Application for review ORIGINATING COURT: Magistrates Court DELIVERED ON: 26 October 2005 DELIVERED AT: Brisbane HEARING DATE: 18 October 2005 JUDGE: White J ORDER: 1. Grant the application for review. Set aside the order of the first respondent ordering the applicant to pay the second respondent $1,500 for costs. 2. The second respondent to pay the applicant’s costs of the application. 3. Refuse the second respondent’s application for a certificate pursuant to the Appeal Costs Fund Act 1973. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – MISCELLANEOUS PRACTICE CASES – where no case to answer ruling by magistrate after committal – where costs awarded by magistrate – whether granting of costs by the magistrate after committal proceedings was within power APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where costs order made by magistrate after committal proceedings – where no basis on which the order under appeal could properly have been made – where counsel invited the order to be made – -- 1 of 7 -- 2 where counsel advised the magistrate that cases to support the order being made were available and where no such authorities were presented upon appeal Appeals Costs Fund Act 1973 (Qld), s 15, s 21 Justices Act 1886 (Qld), ss 104-134, s144, ss157-160 Crowe v Bennett, Ex parte Crowe [1993] 1 Qd R 57, followed D’Orta-Ekeniake v Victoria Legal Aid [2005] HCA 12, followed Durrant v Gardener [2000] QDC 198, distinguished Higgins v Mr Comans, Acting Magistrate & Anor [2005] QCA 234, cited Lauchlan v Hartley [1980] Qd R 149, applied Phillips v Morris [1999] 1 Qd R 89, followed Pukeroa v Berkeley Challenge Pty Ltd and Ors [2005] QCA 49, cited Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] Qd R 301 at 304, followed COUNSEL: Mr S McLeod for the applicant Mr J Cremin for the second respondent First respondent abides the order of the Court SOLICITORS: CJ Strofield Queensland Police Service solicitor John K Harris for the second respondent [1] The applicant Commissioner has challenged the decision of the first respondent Magistrate made on 23 July 2005 whereby she ordered that the Commissioner pay the second respondent, Mr McKey, $1,500 in respect of costs in the proceedings before her. [2] The issue is whether she had the power to do so since the proceedings were committal proceedings. [3] Mr McKey was charged with two counts of common assault pursuant to s 335 of the Criminal Code arising out of incidents occurring at a Brisbane hotel on 11 September 2004. Mr McKey had originally been charged with serious assault under s 340. [4] The common assault charges were to be dealt with as a summary trial on 30 March 2005. Mr McKey, who was represented by Mr J Cremin of counsel, pleaded “not guilty” to the charges. The prosecutor, Sergeant J Lane, without opening his case, commenced adducing evidence from the first complainant. This brief evidence covered some three pages of transcript. After discussion with the prosecutor and defence counsel, the Magistrate decided, in light of the number of witnesses and the seriousness of the allegations, that the charges should be heard by a jury. The prosecutor withdrew his election and the hearing continued as a committal proceeding pursuant to s 104 of the Justices Act 1886 (“the Act”). -- 2 of 7 -- 3 [5] The two complainants gave evidence and were extensively cross-examined; some witness statements were tendered pursuant to s 110A of the Act. There was some further cross-examination of a witness. [6] The proceedings were then adjourned part heard to 23 June 2005. After hearing from several more witnesses the prosecution closed its case. Mr Cremin indicated that he wished to call two witnesses for the defence and then proposed to make a no case submission. The Magistrate persuaded him that he needed to make that submission prior to adducing evidence. [7] After hearing submissions from Mr Cremin and Sergeant Lane the Magistrate concluded at t/s 182 “In my view my finding is that in all the circumstances a jury properly instructed would not convict for a number of reasons ...” The Magistrate analysed the evidence and said at t/s 183 “In all the circumstances, I find that a jury properly instructed would not convict. There is no case to answer.” [8] Mr Cremin then said “Costs, your Honour”. The following exchange and submissions took place “BENCH: What would – would you like to say anything about the costs? They’re limited to 1500 you know that. SNR CONST [SGT] LANE: It’s a committal proceeding, your Honour. Under the Justices Act there’s no provision for costs to be awarded in committal proceedings. MR CREMIN: I believe costs have been awarded in a committal proceedings where the charge has been dismissed, your Honour. I can’t give you the case name but I believe there have been, and I think this is an appropriate circumstance where costs should be awarded, your Honour. SNR CONST [SGT] LANE: Under the circumstances, your Honour, the prosecution has investigated this and brought it in good faith. It has – the investigation was conducted properly. All the relevant statements and everything were obtained on the night he was lawfully arrested. He did provide a record of interview and he did admit to the – he may have spat at the officer, although you found – dismissed at committal in that a properly instructed jury would be unable to convict of the offence. My submission is that there should be no costs awarded under the circumstances. MR CREMIN: Your Honour – sorry. SNR CONST [SGT] LANE: I believe there is a provision in the Justices Act whereby costs cannot be awarded at committal. MR CREMIN: Your Honour, the conduct of this was my client was charged with two counts of common assault. It was then changed to two counts of aggravated assault which then went to Crown Law. -- 3 of 7 -- 4 There have been a number of appearances in this and then on November last year it was taken from there back to two counts of common assault, so it’s been up and down and it was in my submission, never properly investigated by Constable Larmore so the conduct of the prosecution in the matter from day one has not been that thorough or proper. In my submission I think costs ought to be awarded, your Honour. BENCH: Yes, in my view in this case where it is appropriate for costs to be awarded. MR CREMIN: Thank you, you Honour. There have been a number of appearances; I’m a barrister of some 25 years experience up my sleeve. I’d be asking for all the appearances, 5,000 beg your pardon? BENCH: It’s limited to $1500. $1500 is the limit. MR CREMIN: $1500. I’m not going to argue with you. [9] The prosecutor agreed with the Magistrate about the maximum and the Magistrate ordered “...the prosecution to pay the costs of the defendant in the amount of $1500.” She gave as her reasons at t/s 184 “This matter did start as a summary trial but the defendant has been charged with a more serious offence earlier and the matter has gone to Crown Law. It has required the attention of counsel over a fairly long period of time. The prosecution was, or the charge was initiated and there’s no real – what to say – on the initiation and on the word of two security officers without further – there was no investigation before the defendant was charged. Statements were not taken except very briefly. The criticism isn’t severe of the police officer, however this is a case, and there’s clearly a case of a young man who was earlier in the evening enjoying himself. There’s no real allegation he was under any influence of alcohol; he offended the rule and from then on, not to put too fine a point on it, was assaulted by two – one in particular, very heavily built security guards and was thereafter evicted from the hotel and charged. There’s no finding that he was punched in the face but he was clearly injured in the melee and he has had to have several appearances in Court and engaged counsel, and for those reasons alone, costs are appropriate. Thank you. MR CREMIN: Nothing come down about ----- BENCH: Pardon? MR CREMIN: Nothing come down about indictment ------ -- 4 of 7 -- 5 BENCH: Yes, conviction overturned.” What the last order relates to is unclear since there was no conviction. An “Advice of Conviction or Order” was subsequently issued by the Clerk of the Court at the Brisbane Magistrates Court dated 23 June 2005 in the following terms: “In the MAGISTRATES COURT of Queensland at BRISBANE on the 24/06/2005, you were dealt with for the following matters: No. Section – Statute Offence Offence Date Place 1 335 – CRIMINAL CODE COMMON ASSAULT ON 11/09/2004 BRISBANE 2 335 – CRIMINAL CODE COMMON ASSUALT ON 11/09/2004 BRISBANE THE COURT ORDERED THAT: (1) A conviction was not recorded. (2) That you pay the following: PROFESSIONAL COSTS $1,500.00 Total Amount Ordered: $1,500.00 Total Amount Outstanding: $1,500.00 Due Date for Payment: 24/08/2005 TAKE NOTICE that the above Court Order MUST BE COMPLIED WITH. Failing this the Court will take further action to enforce this Order. See attachment for your rights and payment options.” [10] It is not suggested that anything flows from the unusual form of the order. [11] It is clear that a committal proceeding is an administrative function conducted by a judicial officer, D’Orta-Ekeniake v Victoria Legal Aid [2005] HCA 12 at [88]. McPherson JA discussed the history of the committal process in Queensland in Higgins v Mr Comans, Acting Magistrate & Anor [2005] QCA 234 [2]-[6] of his reasons. See also the discussion by Keane JA in the same case at [34] and on the limits of the powers of inferior courts at [15] and [16]. [12] The power to award costs must always be traced to some statutory provision, Queensland Fish Board v Bunney, Ex parte Queensland Fish Board [1979] Qd R 301 at 304; Crowe v Bennett, Ex parte Crowe [1993] 1 Qd R 57 at 60 per Macrossan CJ and at 62 per McPherson JA; and Phillips v Morris [1999] 1 Qd R 89. [13] It is, then, necessary to examine the relevant provisions in the Act. The procedure on the examination of witnesses is contained in ss 104-134 within Part 5 – Proceedings in Case of Indictable Offences. Nowhere is to be found any reference to costs. Mr Cremin submitted that the provisions about costs in Part 6 Division 8, and in particular s 158, are applicable to a decision not to commit a defendant for trial. Part 6 concerns “Proceedings in Case of Simple Offences and Breaches of -- 5 of 7 -- 6 Duty”. A simple offence may be an indictable offence but Part 6 concerns the hearing and determination of proceedings, s 144. [14] Sections 157-160 concern costs on conviction or order or dismissal and how the discretion to award costs should be exercised. Section 157 provides for costs on conviction “In all cases of summary convictions and orders including such a conviction for an indictable offence, the justices making the same may, in their discretion, order by the conviction or order that the defendant shall pay to the complainant such costs as to them seem just and reasonable.” Section 158 provides for 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. (2)......” [15] Mr Cremin submitted that since the Magistrate, in effect, dismissed the charge s 158 applied. It is clear that the jurisdiction to award costs in s 158 is confined to costs arising as a consequence of a hearing and determination of a summary charge including an indictable offence. Those provisions say nothing about committal proceedings. Mr Cremin relied on Durrant v Gardener [2000] QDC 198 to uphold the Magistrate’s order. That case was an appeal against a decision of a Magistrate hearing and determining a complaint about keeping dogs and in which the Magistrate had declined to order professional costs. It has no application to committal proceedings. [16] The Magistrate was acting beyond power when she ordered the Commissioner to pay the defendant’s costs when she concluded that the defendant had no case to answer. [17] Should the applicant be successful he seeks his costs. Mr Cremin in that circumstance seeks a certificate pursuant to Appeals Costs Fund Act 1973. [18] Section 15(1) of that Act provides “(1) Where an appeal against the decision of a court— (a) to the Supreme Court; ... on a question of law succeeds, the Supreme Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.” An appeal includes an order to review. By s 21(1) the ground for a refusal of an indemnity certificate lies in the discretion of the Supreme Court and no appeal lies against any such grant or refusal. -- 6 of 7 -- 7 [19] The Full Court in Lauchlan v Hartley [1980] Qd R 149 offered some observations as to how the discretion might be exercised which have been acted upon since, a recent example is Pukeroa v Berkeley Challenge Pty Ltd and Ors [2005] QCA 49 [32]-[36]. Connolly J, with whom Wanstall CJ and Lucas J agreed, in Lauchlan v Hartley mentioned several situations where the granting of a certificate would be a proper exercise of the judicial discretion. For example, where a decision is reversed on a point of law it will frequently be the case that both sides of the debate are fairly arguable; or appeals from the exercise of a judicial discretion will frequently turn upon the weight to be given to one or more of the relevant considerations; or an appeal from a value judgment such as those aspects of the assessment of damages which are at large. But, his Honour said at 151 “A different category of case altogether however is that where the Full Court is of the view that there was no basis on which the judgment or order under appeal could properly have been made. In such a case it is material to consider the part played by the unsuccessful respondent in leading the tribunal to the decision. Where the advocate, barrister or solicitor, invites a decision for which there is no legal warrant, or which is inconsistent in some respect with settled legal principle the question arises whether his contentions were in truth fairly arguable. If, in the opinion of the Full Court, the legal warrant was arguably available or the settled principle was arguable distinguishable, the respondent may still succeed in obtaining a certificate. If not he will ordinarily fail to obtain the certificate.” [20] In Queensland Fish Board v Bunney a certificate was refused where costs had been sought for which there was no statutory authority. [21] From the transcript passage quoted in [8] above, it is clear that Mr Cremin strenuously sought costs even in the face of Sergeant Lane’s submission that costs were not available for committal proceedings. Mr Cremin went so far as to advise the Magistrate that there were cases where a no case to answer decision had been made where costs had been awarded. He was unable on this hearing to produce those cases, unsurprisingly. [22] In this case the legislation is unambiguous that there is no jurisdiction in a Magistrate exercising the ministerial or administrative role of pronouncing upon the sufficiency of evidence to put a defendant on trial for an indictable offence to award costs. [23] The orders are: 1. Grant the application for review. Set aside the order of the first respondent ordering the applicant to pay the second respondent $1,500 for costs. 2. The second respondent to pay the applicant’s costs of the application. 3. Refuse the second respondent’s application for a certificate pursuant to the Appeal Costs Fund Act 1973. -- 7 of 7 --