BIN SAAD -v- WA POLICE [2026] WASC 366

[2026] WASC 366 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : BIN SAAD -v- WA POLICE [2026] WASC 366 CORAM : SOLOMON J HEARD : 7 AUGUST 2026 DELIVERED : 7 AUGUST 2026 PUBLISHED : 28 AUGUST 2026 FILE NO/S : SJA 1106 of 2025 BETWEEN : SHADDON MURRY BIN SAAD Appellant AND WA POLICE Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE C STOCKDALE File Number : PE 23590 OF 2025 & PE 43762 OF 2025 Catchwords: Appeal of a costs decision - Where charges dismissed for want of prosecution - Sufficiency of reasons - Section 31 of Magistrates Court Act - Relevant costs determination under Legal Profession (Official Prosecutions) (Accused’s Costs) -- 1 of 11 -- [2026] WASC 366 Page 2 Determination 2024 - Decision based on erroneous factual or legal belief about the Determination - Assessment of costs - Costs reasonable in the circumstances Legislation: Criminal Appeals Act 2004 (WA) Criminal Code (WA) Criminal Procedure Act 2004 (WA) Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2024 Magistrates Court Act 2004 (WA) Official Prosecutions (Accused's Costs) Act 1973 (WA) Result: Leave to appeal granted and appeal allowed Costs order of magistrate set aside New costs order imposed Category: B Representation: Counsel: Appellant : Mr I Macfarlane Respondent : Ms J Symons Solicitors: Appellant : Macfarlane Law Respondent : State Solicitor's Office -- 2 of 11 -- [2026] WASC 366 Page 3 Cases referred to in decision: Basham v City of Joondalup (No 2) [2016] WASC 120; (2016) 214 LGERA 375 Basham v City of Joondalup [2015] WASC 345 Bell v Velios [2016] WASC 247 Brookvista Pty Ltd v Meloni [2009] WASCA 180 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR I 94 DuluxGroup (Australia) Pty Ltd v Chapple [2023] WASCA 83 Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418 House v The King [1936] HCA 40; (1936) 55 CLR 499 Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565 Lockett v Commissioner of Consumer Protection [2017] WASC 358 Nevermann v R (1989) 43 A Crim R 347 Norton v Morphett (1995) 83 A Crim R 90 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 Strahan v Brennan [2014] WASC 190 Taylor v WA Police [2007] WASC 158; (2007) 34 WAR 39 -- 3 of 11 -- [2026] WASC 366 SOLOMON J Page 4 SOLOMON J: (This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.) Background 1 This is an application for leave to appeal and an application to appeal the decision of a costs decision of a magistrate made on 2 December 2025. Charges 2 By prosecution notice PE 23590/2025, the appellant was charged that on 20 April 2025, he unlawfully assaulted the complainant and thereby did her bodily harm in circumstances of aggravation, namely being in a family relationship, contrary to s 317(1)(b) of the Criminal Code (the assault charge). 3 By prosecution notice PE 43762/2025, the appellant was charged that on 25 July 2025, he breached a protective bail condition (the bail charge). Proceedings in Magistrates Court 4 On 20 April 2025, the assault charge first came before Karratha Magistrates Court, with a lawyer from Legal Aid appearing for the appellant. Bail was granted with a protective bail condition that the appellant not contact or attempt to contact the protected person by any means or go within 25 metres of the protected person. 5 On 6 May 2025, the appellant attended court for bail variation orders, represented by Legal Aid. 6 On 20 May 2025, the appellant attended court for a trial allocation date hearing, again represented by a lawyer from Legal Aid. 7 On 1 July 2025, the appellant attended court and his bail was renewed. He was represented by counsel, Mr Macfarlane, who represented the appellant in the present appeal. 8 On 20 July 2025, the appellant was charged with the bail charge. -- 4 of 11 -- [2026] WASC 366 SOLOMON J Page 5 9 On 11 November 2025, the assault charge was dismissed for want of prosecution, due to the complainant no longer wishing to give evidence against the appellant. 10 Between 1 July and 11 November 2025, there were three court appearances for the assault charge, all of which were undertaken by a Legal Aid lawyer. 11 On 26 November 2025, the bail charge was dismissed for want of prosecution. Costs application 12 At the hearing on 26 November 2025, the appellant's counsel appeared by audio. Following the dismissal of both charges, the appellant's counsel made an application for costs in the sum of $3,256 for the assault charge and $1,540 for the bail charge. The learned magistrate relisted the matter for 2 December 2025 to allow time for the appellant's counsel to provide a bill of costs. 13 On 2 December 2025, the learned magistrate awarded the appellant costs in the sum of $1,000 across both matters. Grounds of appeal 14 The appellant appeals on three grounds. The first ground is that the magistrate erred in not giving reasons. The second ground is that the magistrate erred by finding that the costs sought were the maximum amounts under the relevant determination. The third ground is that the learned magistrate erred by taking into consideration the fact that the appellant's legal fees were funded by Legal Aid. Legal framework Leave to appeal and appeal 15 Leave to appeal on each ground is required.1 Unless a ground has a real, rational and logical prospect of succeeding, leave to appeal must not be granted.2 16 The court's powers on appeal include the power to allow the appeal.3 However, even if a ground of appeal might be decided in an 1 Criminal Appeals Act 2004 (WA), s 9(1) (Criminal Appeals Act). 2 Criminal Appeals Act, s 9(2); Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56] (Steytler P, Wheeler and Roberts-Smith JJA). 3 Criminal Appeals Act, s 14(1)(b). -- 5 of 11 -- [2026] WASC 366 SOLOMON J Page 6 appellant's favour, the court may dismiss the appeal if no substantial miscarriage of justice is considered to have occurred.4 Appeal from costs orders 17 The power to award costs is governed by s 67 of the Criminal Procedure Act 2004 (WA), which refers to the Official Prosecutions (Accused's Costs) Act 1973 (WA) (OPAC Act) and provides that a successful accused is generally entitled to their costs. 18 Where a summary charge is dismissed for want of prosecution, the accused is considered a successful accused for the purposes of the OPAC Act.5 19 Certain circumstances may disentitle an accused from being awarded costs;6 however, these do not apply here. 20 In Bell v Velios, Le Miere J stated that an accused is entitled to costs provided that three conditions are satisfied.7 These can be summarised as follows: (a) The costs must be properly incurred by the accused. To be properly incurred, the expenses must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination.8 (b) The expenses must be due and payable, or paid, by the accused to another person or as court fees.9 (c) The amount of costs ordered, other than for court fees, shall be in accordance with the scale fixed from time to time by a costs determination.10 21 The relevant costs determination here is Item 6 of Table C in the Legal Profession (Official Prosecutions) (Accused's Costs) Determination 2024 (the costs determination). The costs determination provides that the allowance for preparation where the 4 Criminal Appeals Act, s 14(2). 5 Criminal Procedure Act 2004 (WA) s 67(1); Official Prosecutions (Accused's Costs) Act 1973 (WA) ss 4(2)(a)(iii) and 5(1) (OPAC Act). 6 OPAC Act s 6. 7 Bell v Velios [2016] WASC 247 [4]. 8 OPAC Act s 4; Haddon v Everitt [2001] WASCA 420; 126 A Crim R 418 [60] - [61]. 9 OPAC Act s 4. 10 OPAC Act s 5(5). -- 6 of 11 -- [2026] WASC 366 SOLOMON J Page 7 trial does not proceed or the prosecution offers no evidence is 'an amount which is reasonable in the circumstances'. 22 A court cannot in its discretion award costs less than the full amount of properly incurred expenses that are proved.11 However, a discretion arises when considering:12 (a) Whether expenses were 'properly incurred'; and (b) Whether costs sought under Item 6 of Table C of the costs determination 'for preparation where the trial does not proceed' are 'reasonable in the circumstances'. 23 When an appeal involves a discretionary judgment, the appeal court must be satisfied that the magistrate: acted upon a wrong principle; was mistaken on the facts; had regard to an irrelevant consideration or failed to have regard to a relevant consideration; or the decision on the facts must be so unreasonable or plainly unjust that the appeal court can infer error in the exercise of the discretion.13 24 In an appeal solely against the quantum of a costs order, the appeal court will be reluctant to interfere unless a significant error is found.14 Consideration First and third grounds of appeal 25 I can deal fairly shortly with the first and third grounds. 26 In my view, the learned magistrate's reasons were sufficient. The requirements for sufficiency are set out in a number of cases, including Lockett v Commissioner of Consumer Protection.15 It is not necessary to repeat the principles set out in those authorities. 27 I refer also to s 31 of the Magistrates Court Act 2004 (WA). Magistrates cannot be expected in the circumstances in which they 11 Bell v Velios [5]; Hugall v Hume [2002] WASCA 29; (2002) 127 A Crim R 565 [4]. 12 Bell v Velios [5]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [19] - [21]. 13 House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 509; Bell v Velios [6]. 14 Bell v Velios [7]; Norton v Morphett (1995) 83 A Crim R 90, 100; Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178, 183 - 184. 15 Lockett v Commissioner of Consumer Protection [2017] WASC 358 [44]; Basham v City of Joondalup [2015] WASC 345 [31], [33]; Brookvista Pty Ltd v Meloni [2009] WASCA 180 [34]; Nevermann v R (1989) 43 A Crim R 347, 350; Taylor v WA Police [2007] WASC 158; (2007) 34 WAR 39 [51]; Basham v City of Joondalup (No 2) [2016] WASC 120; (2016) 214 LGERA 375 [112]; DuluxGroup (Australia) Pty Ltd v Chapple [2023] WASCA 83 [46]; Bell v Velios [12]. -- 7 of 11 -- [2026] WASC 366 SOLOMON J Page 8 operate to give fulsome and detailed reasons; and in my view, the reasoning provided by the magistrate was sufficient to convey the essential elements justifying his decision. 28 Accordingly, I would not grant leave in respect of the first ground. 29 The third ground appears to me to proceed on the basis of a misunderstanding of what the learned magistrate intended. The magistrate was referring to the fact that he could not be persuaded that the amount of work that the applicant's lawyer had undertaken justified the amount claimed, because Legal Aid had been involved and indeed had undertaken most of the appearances. I do not understand the magistrate to have intended to say that the amount could not be justified because the appellant was receiving funding from Legal Aid. 30 Accordingly, I would also not grant leave in respect of the third ground. Second ground of appeal 31 However, the second ground, in my view, has merit. 32 It is necessary to direct attention to the transcript of 2 December 2025. At the hearing of 26 November 2025, the learned magistrate did not have before him the information by which he could evaluate the costs application made by the appellant's lawyer. Indeed, that is the reason that the matter was adjourned on 26 November 2025. It was the hearing of 2 December 2025 that contained the learned magistrate's reasoning and determination. 33 The magistrate's reasoning was appropriately concise. The magistrate referred to the fact that counsel for the appellant had not done most of the appearances. However, the learned magistrate referred twice to the fact that the 'maximum amounts' had been claimed under the costs schedule. 34 The learned magistrate stated:16 It's a little bit difficult to understand how the maximum amounts under the costs schedule have been claimed, and that the preparation has occurred so far out from trial. 35 The learned magistrate made a second reference to this:17 16 ts, Magistrates Court of Western Australia, 2 December 2025, 2 (ts, 2 December 2025). -- 8 of 11 -- [2026] WASC 366 SOLOMON J Page 9 …I'm just struggling a little bit to see how the amounts of costs that are sought, which are the maximum amounts under the schedule for preparation, that have been discontinued in one case a long way out from trial - two weeks out from trial. 36 Those words contain a reference to the preparation having occurred so far out from trial as part of the reasoning for the learned magistrate's decision. However, the learned magistrate's reference to the amount claimed being the 'maximum amount' under the schedule was clearly part of the learned magistrate's evaluation of whether the costs were reasonable. The difficulty with that aspect of the magistrate's reasoning is that it was simply erroneous. 37 Under Item 6 of Table C of the costs determination, the allowance for preparation where the trial does not proceed is an amount which is reasonable in the circumstances. In other words, the scale does not provide for a maximum amount. Even if one were to seek to determine a maximum by reference to the amounts provided in the costs determination for 'preparation for trial where a trial does take place', the amounts claimed by the appellant's lawyer were not anywhere close to the maximum. 38 It seems to me that, when read as a whole and fairly, it is not possible to describe those comments of the learned magistrate as merely an 'infelicity of language'.18 The proposition that the amount claimed was the maximum amount under the costs determination appears to me to have been central to the reasoning articulated by the learned magistrate. It follows, therefore, that the magistrate took into account a factual or legal matter which was plainly wrong. 39 For that reason, the learned magistrate's conclusion was the product of error. That is, the exercise of his discretion as to what constituted 'reasonable in the circumstances' was an evaluation undertaken by reference to an erroneous view that the amount claimed was the maximum amount under the costs determination. 40 The amounts claimed by the appellant's counsel were set out in time sheets annexed to an affidavit of Mr Ian Macfarlane sworn on 27 November 2025 and provided to the magistrate for the purposes of the hearing of 2 December 2025. 17 ts, 2 December 2025, 2. 18 cf, Strahan v Brennan [2014] WASC 190, [81] - [91] (Martin CJ). -- 9 of 11 -- [2026] WASC 366 SOLOMON J Page 10 41 Those time sheets disclose that, on 24 October 2025, the appellant's counsel undertook fulsome preparation for the assault charge listed for trial on 26 November 2025. That is just over a month prior to the listed date of the hearing. The matter was then discontinued on 9 November 2025, some two weeks after the appellant's counsel had undertaken some significant preparation. 42 I detect in the magistrate's comments some criticism that preparation had been undertaken so far out from trial. It is not possible for me to assess whether that criticism is justified; however, there is no challenge either at first instance or on this appeal as to the content of Mr Macfarlane's affidavit, and it does not seem to me to go without saying that preparation more than a month before trial is a basis for concluding that such work was undertaken unreasonably. In any event, that appears to me to be only one element of the magistrate's reasoning. The more dominant element of the magistrate's reasoning is the erroneous view that the maximum amounts were charged. 43 In relation to the bail charge, preparation was undertaken on 7 November 2025 in respect of the trial also listed for 26 November 2025. In that matter, the discontinuance was only advised to Mr Macfarlane on 22 November, four days before the trial. 44 It seems to me therefore that, as the erroneous belief that the amounts that were claimed were the maximum amounts formed at least a material, if not the dominant, feature in the magistrate's reasoning, the decision must be set aside for error in the exercise of the magistrate's discretion. 45 Accordingly, I would grant leave and allow the appeal in respect of the second ground of appeal. Assessment of costs 46 The parties agreed that if I were to allow the appeal, it would be more efficient for me to assess the costs here and now rather than send the matter back to the magistrate for assessment of costs. 47 I looked at the costs annexed to Mr Macfarlane's affidavit. As I have already stated, there was no challenge to the content of those affidavits, and counsel for the respondent reiterated in oral submissions that no challenge was made to the line items contained in the time sheets annexed to the affidavit. -- 10 of 11 -- [2026] WASC 366 SOLOMON J Page 11 48 Looking through the time sheets, it is necessary for me to assess what is a reasonable amount to be awarded in accordance with the determination. That must necessarily be done with a very broad brush and from an overview of the matter rather than through any painstaking assessment of the items. 49 It does seem to me that some of those items are likely to have contained an administrative element to them, and it is commonly the case that fulsome preparation for a trial is understandably diligent, but not always entirely necessary. I take into account that there may indeed be some elements of the preparation that were not, in all the circumstances, necessary. That is not to be understood as any criticism of counsel - it is simply the ordinary incident of legal practice. 50 I would assess a reasonable amount as $3,000 for the assault charge, and $1,800 for the bail charge. 51 As Mr Macfarlane does not press the costs of the appeal, which in any event I do not think are available to him, it is unnecessary to deal with that. Conclusion 52 Accordingly, leave to appeal in respect of the costs awarded for charges PE 23590/2025 and PE 43762/2025 will be granted and the appeal is allowed. 53 The costs order of the learned magistrate are set aside. The appellant is awarded costs in the total sum of $4,800, being: $3,000 for the preparation of the hearing of charge PE 23590/2025; and $1,800 for the preparation of the hearing of charge PE 43762/2025. 54 There will be no order as to the costs of this appeal. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. MS Associate to the Hon Justice Solomon 28 AUGUST 2026 -- 11 of 11 --