Ellery v Saffery [2001] QDC 91

DISTRICT COURT OF QUEENSLAND CITATION: Saffery v Ellery [2001] QDC 091 PARTIES: NOEL EDWARD SAFFERY Respondent/Complainant -v- PETER JOHN ELLERY Appellant/Defendant FILE NO/S: 3513/2000 DIVISION: Appeal from Magistrates Court PROCEEDING: S.222 appeal ORIGINATING COURT: Magistrates Court DELIVERED ON: 23 May 2001 DELIVERED AT: Brisbane HEARING DATE: 14 May 2001 JUDGE: Judge Forde ORDER: 1. The appeal is allowed to the extent that whereby the learned Magistrate refused to order costs in favour of the appellant/defendant, it is hereby ordered that the complainant do pay the defendant’s costs to be fixed at $8610.00. 2. It is further ordered that the respondent/complainant do pay the costs of the appeal of the appellant/defendant to be fixed at $1,800.00. CATCHWORDS: Appeal from Magistrate – costs – ss.4, 158A Justices Act, Justice Regulation (1993) Schedule 2 – public officer - Civil Aviation Safety Authority – Civil Aviation Act 1988 – s.7 Commonwealth Authorities & Companies Act 1997 -common law approach erroneous Latoutis v Casey (1990) 170 CLR 534 distinguished COUNSEL: Mr J Sullivan for the Appellant/Defendant Mr G R Rice for the Respondent/Complainant SOLICITORS: Rogers Matheson Clark Solicitors for the Appellant/Defendant Commonwealth Director of Public Prosecutions for the Respondent/Complainant -- 1 of 8 -- 2 [1] The appellant who was the defendant before the learned Magistrate at Brisbane, was charged by an officer of the Civil Aviation Safety Authority (CASA) as follows: “(i) that on the twenty-eighth day of March 1999 at Millmerran in the State of Queensland, PETER JOHN ELLERY did, contrary to section 20A(2) of the Civil Aviation Act 1988 as amended, operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person. (ii) that on the twenty-eighth day of March 1999 at Millmerran in the State of Queensland, PETER JOHN ELLERY, being the pilot in command of an aircraft, namely PA36-375 registration number VH-HSQ, contrary to Regulation 92(1)(d) of the Civil Aviation Regulations 1988, took off from a place, namely the airstrip adjacent to the Pampas Horrane Road, when, having regard to all the circumstances of the proposed take-off, the said aircraft could not take off from that place in safety.” [2] Both charges were heard together on 3rd, 4th and 5th days of July, 2000. Each charge was dismissed, but the learned Magistrate refused to order costs in favour of the appellant. [3] The circumstances of the accident are conveniently set out in the Respondent’s outline of submissions as follows: “3.1 On 28 March 1999 the appellant, an agricultural pilot, was carrying out agricultural spraying in a light aircraft in a rural area near Millmerran. For this purpose he used a private airstrip adjacent to the Pampas Horrane Road near Millmerran. The airstrip (Diagram Exhibit 18) ran at right angles to the road. Powerlines about 5m high ran parallel to the road and represented an obstacle to be negotiated upon take-off. 3.2. At about 4.30 pm, when attempting his twenty-third take-off for the day, the defendant collided with a vehicle being driven on the public road by the witness Mrs Ryan, damaging -- 2 of 8 -- 3 it and causing injury to the occupants. Mrs Ryan had only a glimpse of the aircraft before collision. 3.3. Apart from the defendant there were no other witnesses to the collision. Accordingly, as the Magistrate observed “Many facts critical to the course of the plane to the point of collision are within the exclusive knowledge of the defendant.” Erroneous approach to costs order [4] The learned Magistrate was led into error in deciding that the provisions of S.158A of the Justices Act 1886 were not applicable. He proceeded on the basis that the common law applied. It is now conceded that s. 158A is applicable and so different considerations apply as to the factors to be taken into account under that section. [5] The only section which the Respondent has argued as relevant to his submissions is s.158A(2)(e). S.158A provides as follows: “158A.(1) Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is 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 – (a) whether the proceeding was brought and continued in good faith; and (b) whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and (c) whether the investigation into the offence was conducted in an appropriate way; and (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; and (e) whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and (f) whether the defendant unreasonably declined an opportunity before a charge was laid – (i) to explain the defendant’s version of the events; or -- 3 of 8 -- 4 (ii) to produce evidence likely to exonerate the defendant; and the explanation or evidence could have avoided a prosecution; and (g) whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and (h) whether the defendant was acquitted on a charge, but convicted on another. [6] Section 4 of the Justices Act provides that a public officer means an officer or employee of a statutory body that represents the Crown in right of the State or Commonwealth. Section 7 of the Commonwealth Authorities and Companies Act 1997 provides that a Commonwealth authority is a body corporate incorporated for a public purpose by an Act. CASA, it is accepted by both parties falls into that category. [7] The learned Magistrate was satisfied that the conduct of the appellant after the incident brought the prosecution upon himself. He applied the principles of law to be found in Latoutis v. Casey (1990) 170 CLR 534. That authority was concerned with the common law approach and is of limited assistance in applying the factors which are set out in s.158A. Factors to be taken into account in the consideration of costs. [8] There is no suggestion on the part of the appellant that sub-sections (a),(b) or (c) are relevant for consideration on the present application. The appellant contends that although different versions were given to police and other persons such as Mr. Ryan, the father of Mrs. Ryan and to the CASA official Mr. Taylor, that by the time the matter came to court full disclosure of the appellant’s case had been given in a letter from his solicitors dated 9th February, 2000. In fact, the appellant’s solicitors -- 4 of 8 -- 5 referred to the expert testimony which was to be given by Mr. Foster. It may well be that the appellant brought suspicion on himself by his conflicting statements as to the number of flights that day, how many occasions he went under the wires, prevailing conditions and the weight of load at the relevant time. In fact, Exhibit 6 showed that on average the plane would have been overloaded to be able to achieve the level of spraying which occurred on that day. The learned Magistrate could not be satisfied beyond reasonable doubt what the load was on the flight in question. [9] The learned Magistrate found that: “The course of conduct of which I was so critical must inevitably have led to the persistent suspicion. Furthermore, contained within the various versions given by the defendant were enough statements of facts to create an inferential chain sufficient to establish the elements of at least one, if not both of the offences charged. The fact that I was not prepared to draw those inferences does not alter the fact that they were inferences which might lawfully have been drawn. It was entirely reasonably (sic) for the prosecution to invite a court to draw those inferences and entirely reasonable to do so with hope of success.”. [10] Even if one accepts that finding, and it really cannot be challenged on the facts of this case, it is only one factor to be considered under s.158A. The respondent’s case seems to rely solely on that factor. It is not suggested that the appellant conducted the defence in a way that prolonged the proceeding unreasonably (s.158A(g)). The order of dismissal was not made on technical grounds (s.158A (d)). The appellant’s counsel correctly submits that the case was dismissed because of insufficient evidence presented by the prosecution. [11] In my view, it cannot be said that in considering s.158A(2)(f) the appellant “unreasonably declined an opportunity” before the charge was laid to explain his -- 5 of 8 -- 6 version of events or to produce evidence likely to exonerate him: quite the contrary. The letter of 9th February, 2000, sets out in a clear and comprehensive manner, the nature of the appellant’s case and the nature of the evidence given by Mr. Foster in the AAT in relation to wind shifts and other surrounding circumstances. A more detailed nature of Foster’s evidence was given on 30 June, 2000. The learned Magistrate accepted that evidence and found that there was a reasonable expectation that the aircraft would clear the powerlines with safety. He dealt with the other allegations and found no carelessness on the part of the appellant. He did find that the appellant “demonstrated a spontaneous creativity which can only be likened as self serving and deliberately misleading”. (p. 12.55) [12] The respondent to this appeal contends that in the absence of direct evidence from other witnesses to the collision, the prosecution case was dependent upon the inconsistent statements and the conduct of the appellant after the event as to what the circumstances were at the time. That is true. But once the defence case was revealed, then it became another factor in determining whether a costs order ought to be made in favour of the appellant when the charges are dismissed based upon evidence revealed by the defence pre-trial. The AAT hearing in June –July, 1999 allowed a further assessment of the case, particularly in light of Mr. Foster’s evidence. [13] This is a finely balanced choice between two competing factors. In light of the disclosure of the defence case and the reasons for the dismissal of the charge, I am satisfied that the proper order to make in relation to costs is that it should be in favour of the appellant. -- 6 of 8 -- 7 Quantum [14] The provisions of s.158B provide as follows: “158B.(1) In deciding the costs that are just and reasonable for this division, the justices may award costs only – (a) for an item allowed for this division under a scale of costs prescribed under a regulation; and (b) up to the amount allowed for the item under the scale. (2) However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.” [15] It would have been apparent to the respondent’s advisors that an expert was to be called by the appellant in his case. The amount allowable for costs under Schedule 2 is $1,500.00 for the first day and $875.00 for the following two days a total of $3,250.00. A further amount was sought of $1,000.00 being four mentions at $250 each. However, there was a need for an expert given the complexity of the flight path, loads and other factors including the nature of the work being carried out. It seems just and reasonable to allow a sum for this amount. It was not contested that the sum of $4,200.00 was paid to Mr. Foster for his attendance at court and related expenses. A surveyor was called to give evidence relating to the runway. I allow witnesses expenses of $160.00 for him. In all the circumstances of this case, no further allowance is made for costs. The sum of $8,610.00 is allowed for the costs of the trial. Under the Schedule the sum of $1,800.00 is the maximum allowable for an appeal. -- 7 of 8 -- 8 Orders 1. The appeal is allowed to the extent that whereby the learned Magistrate refused to order costs in favour of the appellant/defendant, it is hereby ordered that the complainant do pay the defendant’s costs to be fixed at $8,610.00. 2. It is further ordered that the respondent/complainant do pay the costs of the appeal of the appellant/defendant to be fixed at $1,800.00. -- 8 of 8 --