R v Michael Somes (Magistrate of the Magistrates Court of the Act); Sean Heath Leech; Darren John Rath; Ex Parte: Daniel Kendal Johnson and Kristian Kane Johnson [1992] ACTSC 19; (1992) 106 FLR 97 (3 March 1992)

SUPREME COURT OF THE ACT

THE QUEEN v. MICHAEL SOMES (Magistrate of the Magistrates Court of the ACT);
SEAN HEATH LEECH; DARREN JOHN RATH; EX PARTE: DANIEL KENDAL JOHNSON and
KRISTIAN KANE JOHNSON
S.C. No. 653 of 1991
Prerogative Writs - Criminal Law
[1992] ACTSC 19; (1992) 106 FLR 97

COURT

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

CATCHWORDS

Prerogative writs - Mandamus and certiorari - error of law on face of record - what constitutes record - order nisi made absolute.

Criminal law - costs - dismissal of information - Magistrate's discretion to award costs to defendant - relevant considerations.

Magistrates Court Act 1930, s.244(1)(b)

R v. Cook; ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15, Gibbs J.

R v. Nicholl and Another; ex parte Grey (1985) 63 ACTR 7

McEwen v. Siely (1972) 21 FLR 131

Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534

R v. Dainer and Another; Ex parte Milevich and Another (1988) 91 FLR 33

HEARING

CANBERRA
3:3:1992

ORDER

1. The order nisi for a writ of certiorari to bring up and quash the decision of the first respondent to refuse an application by the prosecutors for an order for costs against the second and third respondents be made absolute.

2. The order nisi for a writ of mandamus remitting the case to the first respondent to determine that application according to law also be made absolute.

DECISION

This is the return of an order nisi directed to those named as respondents to show cause why writs of mandamus and certiorari should not issue in respect of a decision made on 23 August 1991 by the first respondent (the Magistrate) to refuse an order for costs in unsuccessful summary proceedings brought in the ACT Magistrates Court. The second and third respondents were the informants in those proceedings and the prosecutors in the present proceedings were the defendants in those proceedings. The charges against the respondents were heard together with each other, and together with charges against other persons, presumably by consent.

2. The information against the first prosecutor (Daniel Kendal Johnson), charge No. 91/4864, alleged that on 13 April 1991 he damaged property, to wit fixtures and fittings of the Kambah Girl Guide and Scout Hall, the property of the Girl Guides Association (NSW). The information against the second prosecutor (Kristian Kane Johnson) Charge No. CH91/826, was couched in identical terms. Both Daniel Johnson and Kristian Johnson (as I shall call them) pleaded not guilty to the charges and on 22 and 23 August 1991 the Magistrate heard evidence and submissions. On the latter date he dismissed the charges, finding that no prima facie case had been established. He refused an order for costs on an application made by counsel for Daniel Johnson and Kristian Johnson. It is that decision relating to the application for costs which is under challenge in the present proceedings in this Court.

3. A litigant who wishes to invoke the jurisdiction of the Supreme Court to order the issue of the prerogative writ of certiorari or mandamus or both, is not simply seeking to appeal against the decision under challenge. A writ of mandamus or an order in the nature of mandamus directs a judicial officer to carry out his or her function according to law. A writ of certiorari or an order in the nature of certiorari brings the record of a tribunal into the Supreme Court so that, if error be shown on the record, then the Supreme Court may exercise its powers to quash any decision of the tribunal affected by such error. Where the tribunal has already discharged its judicial function, mandamus will not lie unless and until the decision is quashed. Neither mandamus nor certiorari, nor a combination of the two, enables the Supreme Court to substitute its own decision for the erroneous decision made by the tribunal.

4. In an application in the nature of certiorari for error of law, it is essential that the applicant show error on the face of the record. What constitutes the record is not always easy to determine where the writ is sought in respect of the decision of a court or tribunal which is not a court of record.

5. The record in a court of summary jurisdiction hearing a criminal charge necessarily includes the information alleging the offence, the information being necessary to found jurisdiction in the court of summary jurisdiction. The determination or decision of the court of summary jurisdiction will also be regarded as part of the record if it is reduced to writing. The decision itself may incorporate reasons and the reasons may indicate that other documents, for instance a transcript of the evidence and documentary exhibits, are to be incorporated into the record: see R v. Cook; ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15 (per Gibbs J., as he then was) at 27-28, R v. Nicholl and Another; ex parte Grey (1985) 63 ACTR 7.

6. The informations laying the charges brought in the Magistrates Court were not before this Court in the present application nor was there any document formally recording the Magistrate's decision. There was an affidavit from a solicitor deposing as to what had happened in the Magistrates Court. I will assume, no point being taken on behalf of any of the respondents, that the affidavit is secondary evidence of the record. The transcript of proceedings which contains a record of the evidence as well as of the Magistrate's remarks and counsel's submissions was put before me, the parties appearing to assume that it was the record. I will further assume, again no point being taken, that the Magistrate intended that the whole of the transcript be incorporated into the record. This is all somewhat unsatisfactory but I think that it is necessary to proceed in this way in order to try to do justice.

7. It is not necessary to be other than brief about the evidence before the Magistrate. The witnesses called to support the charges gave a confused account of a drunken rampage over a period of many hours, even days, at the Kambah Girl Guide and Scout Hall where considerable damage was done to the premises and the fittings during that period. The witnesses did not implicate either Daniel Johnson or Kristian Johnson in these events. When spoken to by police, Daniel Johnson and Kristian Johnson each admitted to being on the premises during the period but otherwise made no incriminating admissions. The Magistrate formed an unfavourable view of the witnesses, which he was undoubtedly entitled to form. The Magistrate put it in these terms:
"I would be very surprised if the evidence

that I have heard from that group would be capable
of satisfying a jury beyond reasonable doubt about
anything other than, as I said, that they were not
intending to tell the truth in these proceedings."

8. The case against Daniel Johnson and Kristian Johnson was that each had participated in the events as part of a common purpose to damage or destroy property. In this regard the Magistrate said as follows:

"It would seem to me that the state of the
evidence is such that, as I said, a jury, I think,
could not form any view about anything other than
that all of those there that evening participated
to some extent either in causing the damage or in
being present when damage was being caused. That,
I do not think, is adequate to raise a common
purpose ....".

9. Mr Black of counsel, who appeared for both Daniel Johnson and Kristian Johnson before the Magistrate and in the proceedings in this Court, upon the dismissal of the charges against his client, applied for an order for costs. In a brief submission he put to the Magistrate that there were no "circumstances of disentitlement" and without citation referred to McEwen v. Siely (1972) 21 FLR 131 and Latoudis v. Casey [1990] HCA 59; (1990) 170 CLR 534. He did not, however, elaborate on either of those cases and simply referred to them by name.

10. The Magistrate dismissed the application, acknowledging McEwen v. Siely, saying that he "could not comprehend that it would be in the interests of justice for costs to be awarded in this case".

11. As a matter of first impression it is difficult to see error on the record here. The Magistrate had a discretion to award or refuse costs under para. 244(1)(b) of the Magistrates Court Act 1930, which paragraph provides as follows:

"244(1) The power of the Court to award
costs and the award of costs by the Court shall be
subject to the following provisions:
....
(b) Where the Court dismisses the information, or
makes an order in favour of the defendant, it may in
its discretion award and order that the informant
shall pay to the defendant such costs as it thinks
just and reasonable.
...."

12. The Magistrate was undoubtedly correct in recognizing that the interests of justice were to be taken into account before deciding whether to grant or refuse the application for costs. Unfortunately he did not say why the interests of justice would be advanced by refusing the order. In the absence of express reasons, it is necessary to enquire what reasons were implicit, in the circumstances of the case, for refusing an order for costs in the interests of justice. It is difficult to avoid the impression that the Magistrate was concerned that justice had been frustrated by the attitude taken by the witnesses who were concerned to do anything but tell the truth to the Court about what had happened. It is also unfortunate that counsel for all parties did not take the trouble to put their submissions a little more forcefully or in a little more detail, particularly with regard to reliance on Latoudis v. Casey. The decision in that case had been handed down by the High Court some eight months previously and was sufficiently reported to enable its full import to be drawn to the Magistrate's attention.

13. A majority of three of five Justices of the High Court decided that in summary criminal proceedings an order for costs should ordinarily be made in favour of a defendant against whom the prosecution has failed. Mason C.J. referred to the practice in New South Wales, Victoria and Queensland where the discretion to award costs in the Magistrates Court in the circumstances had been regarded as an open one, and his Honour contrasted the practice in those States with that in South Australia, the Australian Capital Territory and the Northern Territory where an "acquitted defendant" usually recovers costs. The practice in this Territory was authoritatively laid down by a Bench of three Judges in McEwen v. Siely, a decision which was approved in the majority judgments in Latoudis v. Casey. Mason C.J. said at 542:

"In ordinary circumstances it would not be
just or reasonable to deprive a defendant who has
secured the dismissal of a criminal charge brought
against him or her of an order for costs. To
burden a successful defendant with the entire
payment of the costs of defending the proceedings
is in effect to expose the defendant to a financial
burden which may be substantial, perhaps crippling,
by reason of the bringing of a criminal charge
which, in the event, should not have been brought.
It is inequitable that the defendant should be
expected to bear the financial burden of
exculpating himself or herself, though the
circumstances of a particular case may be such as
to make it just and reasonable to refuse an order
for costs or to make a qualified order for costs.
....."

14. The approach of Mason C.J., which appears to treat a prosecution which has failed as one which should not have been brought, clearly excludes as irrelevant on the exercise of the discretion to award or refuse costs, any consideration of the public duty to prosecute or the reasonableness of the decision to prosecute. Whilst Mason C.J. was not prepared to accept that in summary proceedings (presumably summary criminal proceedings) costs should follow the event, his Honour referred at 544 to situations in which it would be appropriate to deprive a successful defendant of his or her costs, where the defendant had "brought the prosecution upon himself or herself", where the defendant had declined an opportunity of explaining his or her version of an offence before charges are laid or conducted his or her defence in such a way as to prolong the proceedings unreasonably. Further, (at 543) a defendant is not to be deprived of costs on the ground that those costs are being met by a legal aid fund.

15. The judgment of Toohey J. was substantially along the lines of that of Mason C.J.

16. McHugh J. agreed that the successful defendant in summary criminal proceedings had "a reasonable expectation" of obtaining an order for costs and should obtain such an order "in most cases". McHugh J. appeared to take a more restrictive view than Mason C.J. or Toohey J. of the circumstances in which a successful defendant would be deprived of costs. McHugh J. said at 569:

"Speaking generally, before a court deprives
a successful defendant in summary proceedings of
his or her costs, it will be necessary for the
informant to establish that the defendant
unreasonably induced the informant to think that a
charge could be successfully brought against the
defendant or that the conduct of the defendant
occasioned unnecessary expense in the institution
or conduct of the proceedings."

17. Both Toohey J. and McHugh J. recognized that R v. Dainer and Another; Ex parte Milevich and Another (1988) 91 FLR 33 was an example of a case in which it was appropriate to deprive the successful defendant of his costs.

18. Clearly, all courts of the Australian Capital Territory are bound to follow Latoudis v. Casey, as single judges and magistrates were formerly bound to follow McEwen v. Siely. Indeed the terms of the majority judgments in Latoudis v. Casey suggest that the discretion to refuse costs to an unsuccessful defendant in summary proceedings is narrower than previously suggested by me in R v. Dainer; Ex parte Milevich. In any event, in the present case the Magistrate's stated reason was simply that it was not in the interests of justice that the defendants should be awarded costs. So widely stated the reason must, in the light of Latoudis v. Casey, be seen as wrong. Even if one goes behind the reason stated to look at the evidence and the events leading to the dismissal of the informations, none of the grounds which the members of the High Court have stated to be appropriate for refusing costs to the defendant is available. One can well understand the feeling of the Magistrate at the end of a prosecution case in which all the important witnesses had conspired to tell a pack of blatant lies and his wish not to lend his authority to a mockery of justice by making an order for costs. However, there was nothing to suggest in any credible way that either Daniel Johnson or Kristian Johnson were part of the conspiracy to keep the truth from the Court. The Magistrate was wrong in law in refusing an order for costs and that error of law appears on the record. The order nisi for a writ of certiorari to bring up and quash the decision of the first respondent to refuse an application by the prosecutors for an order for costs against the second and third respondents is made absolute; the order nisi for a writ of mandamus remitting the case to the first respondent to determine that application according to law is also made absolute.

19. Unless the parties wish to be heard, I propose to order that the second and third respondents pay the prosecutors' costs of the proceedings in this Court.