R v John Joseph Dainer; Peter James Bennett; Ex Parte: Jury George Milevich and Peter George Milevich [1988] ACTSC 19 (14 April 1988)

SUPREME COURT OF THE ACT

THE QUEEN v. JOHN JOSEPH DAINER; PETER JAMES BENNETT; Ex parte: JURY GEORGE
MILEVICH and PETER GEORGE MILEVICH
S.C. No. 1089 of 1987
Costs

COURT

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

CATCHWORDS

Costs - orders nisi - writs of certiorari and mandamus - award of costs to successful defendants - defendants produced in Magistrates Court a previously unknown tape-recording of relevant incidents - whether this constitutes an irrelevant consideration when awarding costs.

McEwen v. Siely (1972) 21 FLR 131

White v. Newton (1986) 71 ACTR 41

Schaftenaar v. Samuels (1975) 11 SASR 266

HEARING

CANBERRA
14:4:1988

Counsel for the Prosecutors: Mr. Bryan Meagher

Solicitors: Higgins Solicitors

Counsel for the First Respondent: Mr. Ian Howe

Solicitors: Australian Government Solicitors

Counsel for the Second Respondent: Mr. R. Livingston

Solicitors: Director of Public Prosecutions

ORDER

The orders nisi be discharged.

The prosecutors pay the costs of the second respondent.

There be no order in respect of the first respondent's costs.

DECISION

This is the return of an order nisi for the issue of a writ of certiorari and an order nisi for the issue of a writ of mandamus directed to the first respondent who presided over certain proceedings in the Canberra Magistrates Court in which the second respondent was the informant and the prosecutors were the defendants. I shall refer to those parties as the Magistrate, the informant and the defendants respectively.

2. The defendants seek to bring up and quash an order of the Magistrate refusing costs in their favour and they seek further, in effect, to have the matter remitted to the Magistrate to be determined according to law.

3. Shortly before midnight on 13 January 1985 the defendants turned up at the home of some people called Morris in Griffith, apparently in order to return a drill which had been borrowed from one of the Morris family. A series of incidents occurred between the defendants and members of the Morris family which resulted in complaints to the police and the informant, a police officer, causing summonses to be issued against the defendants alleging various assaults against members of the Morris family and malicious injury to a window. The conduct of the proceedings was taken over by the Director of Public Prosecutions. At the hearing before the Magistrate, which commenced on 31 January 1986, the informant and the defendants were each represented by counsel. There was a conflict of evidence between the witnesses for the informant and the evidence given by the defendants. There was admitted in evidence in the defendants' case a tape-recording of the conversations which had occurred at the time of the incidents in question. The tape had been recorded on a tape-recorder which Peter Milevich, one of the defendants, had hidden in a bag which he had with him at the time. The defendants made no mention of the existence of the tape until it was raised by their counsel during the course of cross-examination of the informant's witnesses. After hearing evidence and submissions the Magistrate dismissed all informations and during the course of giving his reasons said as follows:

"I must say that I believe the prosecution would

have discharged its onus and satisfied me to the
required degree except for the tape. The tape,
in my view, raises sufficient doubt in my mind
about precisely how the incident commenced to
have a reasonable doubt and, of course, I must
give the benefit of that to the defence."

4. Counsel for the defendants then made an application for costs. The Magistrate refused the application for costs. His reasons for doing so do not appear in one discrete section of the transcript but are to be gleaned from exchanges between him and counsel for the defendants. The reasons are, in any event, quite clear. His Worship took the view that it had been open to the defendants, and those advising and acting for them, to present the tape or a copy of it to the investigating police or to the Director of Public Prosecutions and that if that step had been taken by or on behalf of the defendants the informant may have abandoned the proceedings.

5. Mr. Meagher of counsel who appeared for the defendants, put comprehensive submissions on behalf of his clients. The problem that often occurs in applications for a writ of certiorari as to what it is that constitutes the record, on the face of which error of law must appear before the writ can issue, was happily avoided in the present case as counsel for the defendants conceded that the transcript of the exchange between counsel and the Magistrate constituted the record. I do not intend to dwell on this aspect. In the end the only question for determination by me is whether the Magistrate was in error in taking into account a consideration which was irrelevant for the purpose of deciding whether the defendants would be granted their costs. It was submitted that the fact that the defendants and their representatives had declined to disclose the existence of the tape-recording to the police or to the prosecuting authority was something that the Magistrate was not entitled to take into account when considering whether or not the defendants ought be granted their costs, because it was simply irrelevant.

6. Reference was made to the well-known decision of three Judges of this Court in McEwen v. Siely (1972) 21 FLR 131 in which the Court stated at p 136 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". I have had occasion to remark elsewhere that the rule laid down is a general rule and not a universal one, that it should not be applied until all discretionary factors have been given due consideration and further that there is no strict legal onus on the unsuccessful informant to have to justify resisting an order for costs, White v. Newton (1986) 71 ACTR 41. The range of matters that may properly be taken into consideration in deciding whether an "acquitted defendant" should or should not be awarded costs cannot be precisely defined. A very full survey of the authorities elsewhere was carried out by Wells J. in Schaftenaar v. Samuels (1975) 11 SASR 266. Unfortunately that survey does not include any reference to McEwen v. Siely. However, in that judgment his Honour had this to say at p 274:

"In the exercise of the discretion, there is no
question of onus on one party or the other. A
successful party has, in the absence of special
circumstances, a reasonable expectation of
obtaining an order for payment of costs by the
complainant; but he has no right to costs unless
and until the court awards them to him, and the
court (see per Viscount Cave L.C. in the Pollak
case (1927) AC 732, at page 811) has "an
absolute and unfettered discretion to award or
not to award them". The court should not,
however, exercise the discretion against the
successful party "except for some reason
connected with the case" (ibid., page 812).
Special attention should be paid to the passage,
quoted above, in Viscount Cave's speech in the
Pollak case (1927) AC 732 (at page 810) where
his Lordship expressed, in my judgment, the clear
opinion that the circumstances in King & Co. v.
Gillard & Co. (1905) 2 Ch 7, in Edmund v.
Martell (1907) 24 TLR 25 and in Ritter v.
Godfrey (1920) 2 KB 47 said by the respective
Courts to have been insufficiently connected with
the case to warrant the trial Judge's use of them
in making orders as to costs, were, on the
contrary, "surely sufficiently connected with the
matters in dispute to entitle a judge having a
wide discretion to take them into account when
awarding costs" (per Lord Cave L.C., ibid. at
page 810). Those cases will accordingly bear
close study."

7. I do not think that this statement is in conflict with McEwen v. Siely. Indeed, if I may say so, it is very helpful for the purpose of considering how the rule, if it is a rule, in McEwen v. Siely should be applied. Clearly, if within the terms of McEwen v. Siely the Court considers the question whether the appellant has by his conduct brought the proceedings upon himself, then it is difficult to see how the Court can look at matters which are not "sufficiently connected with the matters in dispute". Likewise, in considering whether other considerations make it unjust to award the successful defendant his costs, the Court must be constrained to consider only matters which are connected with the matters in dispute.

8. The deliberate recording by means of a tape-recorder on the part of one of the parties of the conversations which were central to the events in dispute was clearly connected with those events. So too was what the Magistrate was entitled to regard as a deliberate omission by that party or by those representing him, to disclose the existence of that tape to the other side. These two factors cannot be said to be irrelevant for the purpose of deciding costs, whether one has regard to the question whether the defendants have by their conduct brought the proceeding upon themselves or whether one has regard to the question whether other considerations make it unjust to award them costs. Clearly minds may differ as to the importance of the omission to disclose the tape-recording as it affects the question of whether the defendants ought to have been granted their costs. It may have been a wise tactical move for the purpose of cross-examination of the informant's witnesses. If their evidence conflicted with the tape it could be used to cross-examine them. If their evidence did not conflict with the tape then presumably its existence would not have been disclosed. But whether the view be taken that nondisclosure was a sufficient reason or an insufficient reason to deprive them of their costs is beside the point. The point is that it was a relevant matter to be taken into consideration. The error on the part of the Magistrate has not been made out. The orders nisi will be discharged. Unless the parties wish to be heard I propose to order that the prosecutors pay the costs of the second respondent. The first respondent appeared to submit to any order that the Court might make and I make no order in respect of his costs.