GRAHAM v POLICE

[2016] SASCFC 94

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

GRAHAM v POLICE

[2016] SASCFC 94

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Justice Kelly and The Honourable Justice Hinton)

25 August 2016

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - COSTS

Application for permission to appeal to the Full Court of the Supreme Court from a decision of a Judge of this Court.

The applicant was charged on an Information with six counts. The applicant pleaded guilty to counts four to six, and not guilty to counts one to three. The trial proceeded, but the Magistrate found no case to answer and dismissed counts one to three.

The applicant applied for costs in the amount of $3,630, which is the full award of costs in accordance with the criminal scale of costs in the Magistrates Court Rules 1992 (SA). The Magistrate awarded $2,000 in costs.

The Judge dismissed the applicant’s appeal to the Supreme Court, holding that the Magistrate was entitled to exercise his discretion, and that the award of costs was not manifestly inadequate.

The applicant appeals to the Full Court on the grounds that the Judge erred in finding that the Magistrate correctly exercised his discretion to reduce costs; erred in finding that there was neither a process or outcome error; erred in finding that there was little if any material as to the adequacy or quantum of costs; and that the Judge erred in determining that it was not irrelevant that the applicant had pleaded guilty to three of the charges.

Held per the Court, dismissing the application:

1.       The applicant has not identified any error in the review conducted by the Judge.

2.       Permission to appeal is refused.

Magistrates Court Rules 1992 (SA) r 51; Summary Procedure Act 1921 (SA) s 189; Magistrates Court Act 1991 (SA) s 49, referred to.

GRAHAM v POLICE
[2016] SASCFC 94

Full Court:   Kourakis CJ, Kelly and Hinton JJ

1. THE COURT:      This is an application for permission to appeal a judgment given by a single Judge of this Court (the appeal Judge) dismissing an appeal against a costs order made in the Magistrates Court.  The applicant was the defendant in the Magistrates Court proceeding and was acquitted of charges alleging offences of:

   Count 1: Recklessly cause harm (aggravated)
   Count 2: Assault (aggravated)

   Count 3: Assault (aggravated)

2. The Magistrate awarded the defendant costs in the sum of $2,000.  A full award of costs in accordance with the scale of costs fixed by the Magistrates Court Rules 1992 (SA) (the Rules) would have been in the sum of $3,630.

3. Section 189 of the Summary Procedure Act 1921 (SA) confers a discretion on the Magistrates Court in its criminal jurisdiction to award such costs against a party as it thinks fit. 

4. Section 49(1)(e) of the Magistrates Court Act 1991 (SA) empowers the Magistrates Court to make rules regulating costs.

5. Rule 51.01 of the Rules provides that, subject to an order to the contrary, costs will follow the event and be quantified in accordance with the scale of costs in the first schedule to the Rules.

6. The abovementioned provisions, read together, have the effect that costs will be awarded to a successful party in accordance with the scale unless there is a proper reason to make an exception to the general rule.

7. The Magistrate who presided over the trial was in the best position to make the relevant assessment.  The Magistrate determined that the circumstance, known to the defendant before the trial, that the complainant would not be a witness for the prosecution so reduced the complexity of the matter as to justify a costs order less than the scale.  The appeal Judge correctly determined that the identified circumstance was a proper reason on which to exercise the discretion in that way.  The appeal Judge also determined that the award was not manifestly inadequate. 

8. It is not arguable that the conclusion of the appeal Judge, that no error had vitiated the exercise of the Magistrate’s costs discretion, is wrong.

9. Permission to appeal is refused.