Paul Christopher White v Philip Bradley Newton [1986] ACTSC 119 (19 December 1986)

SUPREME COURT OF THE ACT

PAUL CHRISTOPHER WHITE v. PHILIP BRADLEY NEWTON
S.C. Nos. 585, 586 and 587 of 1985
Costs - Justices

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY Miles C.J.(1)

CATCHWORDS

Costs - criminal appeal from Magistrates Court - costs against informant - whether general rule should apply.

Justices - Procedure - costs against informant - general principles - Magistrates Court Ordinance 1930 s.244(1)(b).

McEwen v. Siely (1972) 21 FLR 131 considered

HEARING

CANBERRA
19:12:1986

ORDER

Each party bear his own costs of proceedings in the Supreme Court and the lower Court.

DECISION

The successful appellant seeks his costs both in the appeal to this Court and in the Court below. Counsel for the appellant stated that it was the practice to grant such costs. No other reason was advanced. When pressed as to the basis for the practice, counsel relied upon McEwen v. Siely (1972) 21 FLR 131. In that case a Bench of three Judges of this Court stated that "generally an acquitted defendant should have his costs unless he has by his conduct brought the proceedings or their continuation upon himself or unless some other consideration is present which makes it unjust to award him costs". However, in my view there is no reason why the usual practice should be regarded as the fixed and universal practice. Futhermore, the rule as laid down in McEwen v. Siely is, with respect, not without ambiguity. The term "acquitted defendant" presumably does not include an accused person acquitted at a trial. It no doubt includes a person found not guilty by a magistrate and includes also, I would think, a person found not guilty after an appeal from a conviction by a magistrate. In general terms, the Court may have meant to lay down two propositions, one that there is a general rule that a successful defendant should have his costs and the other that that rule does not apply in those limited cases where the defendant has brought the proceedings upon himself or where it is otherwise unjust to award him costs. That interpretation would seem to cast a legal onus on the respondent. The other meaning, which I tend to think is probably what was intended, is that there is one single general rule that unless the defendant has by his conduct brought the proceedings upon himself or other considerations make it unjust to award him costs, then costs should be awarded to an acquitted defendant.

2. If the latter interpretation is accepted, it follows that the rule is not to be applied until all discretionary factors have been given due consideration and that there is no strict legal onus on the unsuccessful respondent to have to justify resisting an order for costs. By predicating that the rule is a general one only, the Court acknowledged that the rule is not mandatory and does not reflect a universal practice. A general rule is a rule to which exceptions are recognized.

3. In my view the present case involves an exception to the general rule. The appeal before me was a hearing de novo. The appellant succeeded because he adopted the successful tactic of placing before this Court the transcript of his sworn evidence before the Magistrate, but in declining to enter the witness box and subject himself to evaluation as a witness of truth he deprived this Court of a means of assessing that evidence. I felt that without seeing him in the witness box I could not reject what he said on oath elsewhere. Of course, he was not bound to enter the witness box and no inference was or could be drawn against him on the question of guilt by his failure to do so. However, it must be observed that he did not rely upon his right to silence. If he had wished to rely upon his right to silence he would not have put his transcript of evidence before the Court. Wisely, however, he elected to rely on the transcript and not to give evidence before this Court because of the possibility that the latter course would have led to the dismissal of the appeal and to his conviction.

4. The application for costs before the Magistrate has even less merit than the application for costs in this Court. The applicant did not succeed in the Court below because his presentation as a witness led the Magistrate to reject him as a witness of truth. It is relevant for me now to take that fact into consideration. It was not relevant upon the hearing of the appeal itself. The appellant has not shown and has not even sought to show that the Magistrate was wrong in concluding that the appellant was an untruthful witness.

5. The appellant was perfectly entitled at the appeal to adopt the tactics that he did adopt in order to avoid a conviction. That is not to say that he is entitled to his costs. I am quite satisfied that as far as the costs of the proceedings before the Magistrate are concerned, he brought those proceedings upon himself. I am further satisfied both as to those proceedings and as to the appeal that it would be unjust to award the appellant his costs. Further, in the general exercise of discretion the factors to which I have referred lead me to a conclusion that the discretion to award costs should not be exercised in the appellant's favour. Each party is to bear his own costs.