R v Warren Keith Nicholl and Anor; Ex Parte Gary Peter Adams [1986] ACTSC 13 (7 March 1986)

SUPREME COURT OF THE ACT

THE QUEEN v. WARREN KEITH NICHOLL and ANOR; Ex parte GARY PETER ADAMS
S.C. No. 1256 of 1985
Practice and Procedure

COURT

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

CATCHWORDS

Practice and Procedure - costs - discretion to award - a successful party not entitled to an order for costs where he has by his conduct brought the proceedings upon himself.

Court of Petty Sessions Ordinance 1930, s. 244(1)

McEwen v Sieley (1972) 21 FLR 131

HEARING

CANBERRA
7:3:1986

ORDER

The application be dismissed with costs.

DECISION

This is the return of an order nisi made on 14 February 1986 for a writ of certiorari directed to the first respondent (the magistrate) to show cause why his decision refusing to grant the prosecutor an order for costs against the second respondent (the informant) in matter No. 5066-7 of 84 in the Australian Capital Territory Court of Petty Sessions should not issue. It is submitted on behalf of the prosecutor that in refusing the prosecutor's application for costs the learned magistrate made errors of law which appear on the face of the record and that, accordingly, a writ of certiorari should issue to correct the errors.

2. The errors of law which it was submitted were made by the learned magistrate are that his reasons disclose that he made inconsistent findings, that he failed to give any reasons for his decision to refuse the application for costs, and that, in effect, he proceeded upon the basis that the prosecutor had failed to establish his innocence instead of proceeding upon the basis that it was for the informant to establish the prosecutor's guilt.

3. It is beyond question that, in ordinary circumstances, a successful party is entitled to receive an order for costs notwithstanding the fact that the informant is a police officer. In McEwen v Sieley (1972) 21 FLR 131 at 133, a Full Bench of this Court said 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.

4. Section 244(1) of the Court of Petty Sessions Ordinance 1930 provides that the power of the court to award costs shall be subject to a number of provisions, the most relevant of which for present purposes is as follows:

"(b) where the court dismisses the motion, or

makes an order in favour of the
defendant, it may in its discretion make
an order that the informant shall pay to
the defendant such costs as it thinks
just and reasonable;"

5. The discretion to award costs is thus very wide but it must, of course, be exercised judicially. Ordinarily, the failure of an informant to prove his case beyond reasonable doubt leading to the acquittal of a defendant will lead to the result that the defendant will obtain an order for his costs. The real question in the present case is whether the learned magistrate refused to make an order for costs in favour of the prosecutor because he was not satisfied that he had established his innocence, or because he was satisfied that there was some other consideration to which he was entitled to have regard in considering the question of costs.

6. In my opinion it appears sufficiently clearly from the learned magistrate's reasons that he refused to make an order for costs because he thought the prosecutor had brought the prosecution upon himself by falsely telling the police officers who interviewed him that he was the driver of a motor vehicle at the time when the relevant offence was alleged to have occurred. In giving his reasons the learned magistrate said:

"The real issue in this case is whether or not Mr
Adams has been proved by the prosecution to have been
the driver of his motor vehicle at the time it struck
a tree and some rocks apparently in Nullagine Street,
Fisher. The prosecution's case is essentially the
evidence of the two investigating police officers who
gave evidence that Mr Adams, in effect, admitted that
he was the driver and gave some account of the events
involved, coupled with some evidence about when the
event occurred.

"Mr Adams himself denies that he was the driver
when he gave evidence in this court and his wife was
called to give evidence and she herself accepts
responsibility for the accident. She says that she
was the driver. I will simply say this: that if I
had been left with only the evidence of Mr Adams his
evidence would not have raised a doubt in respect of
the prosecution's case. However, Mrs Adams gave her
evidence in a way which, notwithstanding, the
criticism of her by Mr Erskine left me with the
impression that she was a witness giving a truthful
account of what took place.

I do not have to make a positive finding that she
was the actual driver. Her evidence raises a doubt in
my mind as to who was driving the vehicle and for that
reason the information is dismissed and the defendants
discharged."

7. In giving his reasons for refusing to make an order for costs in favour of the prosecutor the learned magistrate said:

"In my view this is not a case in which costs should
be awarded. This is a case in which it can be said
that the defendant brought the prosecution on
himself by making what he would assert was a false
confession. I do not find that he made a false
confession. I simply find that I was not satisfied
beyond reasonable doubt on the total evidence that
he was the driver of the vehicle at the relevant
time. The application for costs is refused."

8. I do not think that the statements made by his Worship involve any inconsistent findings, nor do they fail to state his reasons for refusing to make an order for costs, nor do they proceed upon the basis that the prosecutor was not entitled to an order for costs because he had failed to establish his innocence.

9. In my opinion, the learned magistrate plainly found as a fact that the prosecutor told the police officers that he was the driver of the relevant vehicle. I think it is clear that his Worship rejected Mr Allen as a witness of truth, accepted the police officers' evidence as being reliable, and reached the conclusion that he did not have a doubt that the prosecutor told the officers that he was the driver of the vehicle. This much appears not only from what the learned magistrate said in dismissing the information, but it also appears from the reasons he gave in refusing to make an order for costs. His statement that "this is a case in which it can be said that the defendant brought the prosecution on himself by making what he would assert was a false confession" is entirely consistent with his finding that he did not have a doubt that the prosecutor told the police officers that he was the driver of the vehicle. The learned magistrate's statement that he did not find that the prosecutor made a false confession does not mean that he did not find that the prosecutor made a confession. The whole point of his decision is that, although satisfied that the prosecutor did make a confession, the evidence of the prosecutor's wife (who was not present at the conversation between her husband and the police officers) left him in some doubt as to whether the confession was genuine or not. Having such a doubt, he could not be satisfied beyond reasonable doubt that the prosecutor was the driver of the vehicle at the relevant time, although he was in no doubt that he said he was the driver of the vehicle at that time.

10. Thus, this was truly a case in which the prosecutor brought the proceedings on his own head by telling the police officers that he was the driver of the vehicle. In these circumstances it was well open to the learned magistrate to make the order for costs which he did. Indeed, it would have been surprising if he had made any other order. For the reasons I have given, the application must be dismissed with costs.