Guiseppe Emanuele v Allan John Dau [1996] ACTSC 82 (1 August 1996)

SUPREME COURT OF THE ACT

GUISEPPE EMANUELE v. ALLAN JOHN DAU
No. SCA10 of 1994
Number of pages - 18
Costs

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Costs - appeal from conviction in the Magistrates' Court - appellant's conviction set aside - court's discretion to order the respondent to pay the acquitted defendant's costs of proceedings in the Magistrates' Court - jurisdiction of Supreme Court to hear appeals from decisions of the Magistrates' Court - powers conferred upon the Supreme Court upon hearing an appeal - power to make an order for costs following an appeal - power to refer the matter of an order for costs back to the Magistrates' Court for determination - powers of a magistrate to award costs - quantification of costs - discretion of the Supreme Court to fix a lump sum for costs or to order that costs be taxed, if not agreed - basis for an award of costs in civil matters and summary criminal proceedings - lack of capacity of a defendant in a criminal matter to enter into a compromise - consequence to a defendant's livelihood and reputation of an adverse finding - factors that may disentitle a successful defendant to an award of costs - the defendant by his or her conduct after the events constituting the commission of the alleged offence, bringing the prosecution upon him or herself - whether failure to disclose evidence to the prosecution would disentitle a successful defendant to an award of costs - whether improper conduct on the part of the prosecution would influence an award of costs to a successful defendant.

Magistrates Court Act 1930 (ACT), ss207, 208, 218, 244

Justices Act 1902 Western Australia, s153
Justices Act 1902 (NSW), s41A
Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), Part XVIIIA
Justices Act 1902 (NSW), s81
Supreme Court Rules, O65 r49
Supreme Court Act 1933, s47

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Bateman v Clarke (1973) WAR 101
O'Brien v Heathcote (1982) 44 ACTR 19
Healey v Williams (1985) 10 FCR 254
Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540
Snell v Pryce (No. 2) [1992] NTSC 58; (1992) 109 FLR 328
Lansley v Knight; ex parte Murphy (1992) 110 FLR 295
McEwen v Siely (1972) 21 FLR 131
Juddery v Lindsay (1976) 8 ACTR 1
Crowley v Willis (1992) 110 FLR 194
Villiers v Harley (1981) 36 ACTR 23
Hoogendyk v Pinkerton, unreported, Supreme Court, Australian Capital

Territory, SCA 1323/80, Connor J, 19 January 1981
Carter v Coombe, unreported, Supreme Court, South Australia, Legoe J, No. 13 of 1989, 17 November 1989

Beach Petroleum v Johnson (1995) 135 ALR 160
Redden v Chapman (1949) 50 SR (NSW) 24
Verna Trading Pty Ltd v New India Assurance Co Ltd (1991) 1 VR 129
MLC Insurance Ltd v FAI Traders Insurance Co Ltd (1994) 49 FCR 23
Hamdorf v Riddle (1971) SASR 398
R v Hermes; ex p Boyd (1984) 53 ACTR 15
R v Hsing (1991) 25 NSWLR 685
Ridgeway v R [1994] HCA 33; (1995) 184 CLR 19
R v Dainer; ex p Milevich (1988) 91 FLR 33
R v Soames (sic - Somes); ex p Johnson [1992] ACTSC 19; (1992) 106 FLR 97
Emanuele v Dau (1995) 78 A Crim R 242

HEARING

CANBERRA, 31 May 1996
1:8:1996

Counsel for the Appellant: Mr G.B. Hervey

Instructing Solicitors: Blake Dawson Waldron

Counsel for the Respondent: Mr P. Hastings QC with
Mr J. Carter

Instructing Solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
The respondent pay the appellant's costs of proceedings in the court below fixed in the sum of $600,000.00.

DECISION

HIGGINS J In this matter, on 16 March 1995, I upheld an appeal by the appellant against his conviction in the ACT Magistrates Court on a charge of offering a bribe to Anthony Hedley, then a senior public servant, to influence a tender process then in train, for the sale of the Belconnen Mall.

2. I set aside the conviction and sentence recorded and permanently stayed the proceedings. The question of costs was reserved.

3. On 4 December 1995, an appeal to a Full Federal Court from my decision was dismissed.

4. The respondent concedes that he is liable to pay the costs of those appeals but contends that he ought not be ordered to pay the costs of the proceedings before the learned Chief Magistrate. Those proceedings formally commenced with the charge abovementioned being laid against the appellant on 28 November 1985. The hearing commenced before the Chief Magistrate on 4 September 1986. On completion of the evidence his Worship, with the consent of the parties, decided to hear and determine the matter by way of summary trial rather than to commit the appellant for trial in this Court. The offence was found proved on 4 November 1993 and sentence was imposed on 4 February 1994.

5. It is in respect of the costs of those proceedings that the parties are at issue.

6. There is no dispute that in cases of this kind, "... in ordinary circumstances, an order for costs should be made in favour of a successful defendant", see Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 544 per Mason CJ.

7. The respondent accepts that this principle applies to the proceedings before the learned Chief Magistrate. However, he advances two major alternative contentions. First, that the question should be remitted to the learned Chief Magistrate for decision. Second, that costs should be denied or reduced having regard to particular circumstances of the litigation rendering it "just and reasonable" so to do.

Remitting the matter to the Magistrates Court
8. Jurisdiction to hear and determine appeals from decisions of the Magistrates Court such as the decision considered in this appeal is conferred on this Court by ss207 and 208 of the Magistrates Court Act 1930 (ACT) (MC Act). The powers conferred on this Court upon hearing the appeal include, per s218(1), the power to,

(a) affirm, reverse or vary the conviction, order, sentence,
penalty or decision appealed from;
(b) give such judgment, or make such order, as, in all the
circumstances, it thinks fit, or refuse to make an order;
(c) set aside the conviction, order, sentence, penalty or decision
appealed from, in whole or in part, and remit the proceedings to
the Magistrates Court for further hearing and determination
subject to such directions as the Supreme Court thinks fit.

9. Section 218(2) should be noted. It states,

A judgment or order of the Supreme Court under paragraph (1)(a)
or (b) shall have effect as if it were a decision of the
Magistrates Court and may be enforced by the Magistrates Court
accordingly.

10. The power of a magistrate to award costs is contained in s244(b), MC Act. It is in the following terms,

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;

11. It is further provided, at (c) that,

The sums so allowed for costs shall in all cases be specified in
the conviction or order of dismissal.

12. The method by which the "sums" to be "so allowed" are to be determined is dealt with in s244(g). It states,

The amount of costs to be paid by one party to another whether for
the attendance of those persons or otherwise shall in all cases be
fixed by the Court.

13. Had the learned Chief Magistrate found as I did on the issue of entrapment, he could then have stayed further proceedings on the information before him. That would have been an order in favour of the appellant as the defendant in those proceedings. His Worship would then have had to consider whether or not to make an order for costs in favour of the appellant and, if so, to fix the amount of such costs.

14. Although s244(c) requires the sum allowed for costs to be specified in the order, if that means that substantive orders may not be made until costs have been fixed, it would have been necessary for the final orders to have been delayed so that the order for costs, if made, could be made and the sum fixed at the same time as the substantive order was made. Thus, on the hearing of this appeal I would have had to have made the order for costs when I pronounced the final orders in favour of the appellant.

15. The substantive orders having been made, I need to be satisfied that I have power now to make an order for costs or, if I accede to an application to remit the matter to the Magistrates Court, that a magistrate would have the power to do so.

16. That question was considered by Jackson CJ in Bateman v Clarke (1973) WAR 101. In that case, his honour, interpreting s153 of the Justices Act 1902, Western Australia, the equivalent of s224(c), held that the costs order should be made at the time of the substantive order. An order for costs made after the Magistrate had, with the agreement of the parties, reserved the question of costs, was, accordingly, quashed.

17. Kelly J, in O'Brien v Heathcote (1982) 44 ACTR 19, upheld an appeal by way of order to review against a decision of a Magistrate convicting the appellant of a drink-driving offence. His Worship had ordered the appellant to pay costs and reserved the question of quantum. His Honour noted that the question of the validity of that order was not before him but drew attention, inter alia, to the decision of Jackson CJ in Bateman v Clarke (supra). Although obiter, it was clearly his Honour's view that the validity of the order which the Magistrate had made was in doubt.

18. Later authorities have expressed a different view. In Healey v Williams (1985) 10 FCR 254, an order for the discharge of the defendant was made by a Magistrate in committal proceedings, thus enlivening a discretion to order costs in her favour. Counsel for the defendant indicated that an order for costs would be sought. On a later date the Magistrate gave reasons for his decision to discharge the defendant. Counsel for the defendant then applied for an order for costs. Unfortunately, the defendant had died in the interim. Nevertheless, his Worship made an order that the informant pay the defendant's costs of the proceedings before him. The informant sought judicial review of that decision.

19. Bowen CJ held that whilst the equivalent provision to s244(c) (in that case s41A, Justices Act 1902 (NSW)) required the costs order to be part of the order of discharge, there was nothing to prevent different parts of that order being made on different days or operating from different dates. His Honour referred to the manifest injustice in delaying the discharge of a defendant from custody or bail because the entitlement to costs remained to be worked out. That consequence, in his Honour's view, could not have been intended by the legislature.

20. In Fosse v Director of Public Prosecutions (1989) 16 NSWLR 540, Smart J considered whether the application for costs should be made, or at least foreshadowed, even if not determined, on the date on which the defendant was discharged. His Honour accepted that proposition on the basis that, if the defendant was discharged and the question of costs not reserved, the Magistrate would be functus officio. However, his Honour also accepted the converse proposition, namely, that, where a discharged defendant thereupon asks for costs or that a date be set to hear an application for costs, the process of discharge remains, to that extent, incomplete, but there is no barrier to the Magistrate immediately giving effect otherwise to the order for discharge of the defendant, leaving the question of costs to be determined on a later date or dates.

21. That decision is consistent with that of Bowen CJ in Healey v Williams (supra). I consider that I am bound by that latter decision in any event. I would, however, in any event, have declined to follow Bateman v Clarke for the reasons advanced by both Bowen CJ and Smart J.

22. Whether or not, if a party has failed to apply for costs, or at least reserve the question of costs at the time of the making of the substantive order, the "slip rule" can be applied to rectify that failure does not arise for decision. However, the decision of Angel J in Snell v Pryce (No. 2) [1992] NTSC 58; (1992) 109 FLR 328 provides useful guidance on that question.

23. In the present case, the question of costs was expressly reserved for further argument at the time when I made the substantive orders in favour of the appellant. That included the question of costs below. It follows that there is power now in this Court either to itself order costs or to refer the matter back to the Magistrates Court for a magistrate to do so.

24. In the interests of avoiding further delay and expense, as the matter was fully argued before me both as to the procedure for the award of costs and as to the substance of any such order, it seems to me that I should not remit the matter but finalise it.

Quantification of Costs
25. A question has arisen as to how the costs are to be quantified. Section 244(g) requires the amount of costs to be "fixed by the Court".

26. If the appellant had succeeded in the Magistrates Court then that Court would have had the duty to fix the quantum of costs. Unless otherwise specified, the powers of that Court may be exercised only by a Magistrate.

27. Section 244(d) MC Act applies the provisions of Part XVIIIA of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) to the process of the recovery of any costs ordered to be paid. It does not apply the provisions of Part XVIII which empowers a Registrar (or Deputy Registrar) of the Magistrates Court to fix costs by taxation where a Magistrate has ordered costs to be taxed.

28. However, even though the power to fix costs in a matter determined under the MC Act must, in that Court, be exercised by a Magistrate, I would see no objection, if he or she considered it useful, to have a Registrar or Deputy Registrar tax a bill and report thereon. The Magistrate, subject to procedural fairness to the parties, might then fix the costs in the relevant order in the light of that report. That was, in fact, procedure which had been adopted by Special Magistrate Murphy in Lansley v Knight; ex parte Murphy (1992) 110 FLR 295, though his Worship did not award the amount so certified.

29. It was submitted that the Registrar or Deputy Registrar of this Court has no jurisdiction to tax costs of proceedings in the Magistrates Court even if those costs are awarded by order of this Court in its appellate jurisdiction. It was contended, therefore, that this Court must either itself fix the sum to be paid by the party deemed unsuccessful in the Court below or remit the question to the Magistrates Court for decision.

30. Certainly, in McEwen v Siely (1972) 21 FLR 131, the first case in this Territory in which costs of proceedings in a Magistrates Court were, on appeal, ordered to be paid by an unsuccessful informant, the Full Court fixed those costs and ordered the costs of the appeal only to be taxed.

31. However, in Juddery v Lindsay (1976) 8 ACTR 1, a Full Court of this Court (Blackburn, Connor and Evatt JJ), upholding an appeal from a conviction in the Magistrates Court, ordered, at 10, the unsuccessful respondent to pay,

... the appellant's taxed costs incurred here and below.

32. Having drawn attention to s244 in O'Brien v Heathcote (supra), Kelly J, at 31, ordered the unsuccessful respondent/informant to pay costs of the proceedings below in the following terms,

The respondent will be required to pay the appellant's costs
... of the hearing in the Court of Petty Sessions... Because of
the provisions of s244 ... and in keeping with the spirit of that
section I will not make formal orders until such time as the
appellant's costs of the proceedings before the Court of Petty
Sessions are quantified by agreement or after argument.

33. His Honour then fixed those costs at $650.00, presumably as agreed or after argument. It is noteworthy that his Honour did not cast doubt on the power to order the costs below to be taxed.

34. It seems to me that the preferred construction of s244(c) is that adopted for the equivalent New South Wales provision from whence it was derived, originally s81 Justices Act 1902 (NSW). Healey v Williams (supra) and Fosse v DPP (supra), support the view that on the dismissal of an information or the making of some other substantive order in favour of a defendant, the Magistrate, or a Judge on appeal, need not then and there order or fix costs.

35. It follows, in my view, that in ordering the costs below to be paid by a party, a Judge of this Court may either refer the question of quantification to a Magistrate who may fix costs as he or she thinks just and reasonable. If, however, the Judge decides that the costs should be fixed by the Supreme Court, then the Judge may do that himself or herself after due enquiry, or, if appropriate, direct that the Registrar tax those costs pursuant to Order 65 of the Supreme Court Rules. It is noted that O65 r49 confers power on the Registrar or a Deputy Registrar, pursuant to s47 of the Supreme Court Act 1933, to tax costs ordered to be paid in proceedings in the Court.

36. I was referred to a memorandum of the Deputy Registrar in Crowley v Willis (SCA 108/92). The substantive proceedings are reported in (1992) 110 FLR 194. Although not noted in that report, the formal order for costs as entered in the records of this Court was,

on 26 October 1992, "that the Respondent pay the Appellant's costs
of the Appeal", and

on 19 November 1992, "that the Respondent pay the costs of the
Appellant, with respect to Magistrates Court proceedings no. CC
10129/92 from which this Appeal was made."

37. The Deputy Registrar's memorandum to the parties was in the following terms,

On appeal from the Magistrates Court in a criminal matter the
respondent was ordered to pay the appellant' costs in the
magistrates court. A bill has been filed in this court which the
appellant seeks to have taxed by the deputy registrar. The
respondent, the DPP, has raised a preliminary point as to whether
the deputy registrar, as taxing officer in the Supreme Court, has
the power to tax the bill.

Relying on the decisions in Villiers v Harley (Kelly J, 2 April
1982) and Hoogendyk v Pinkerton (Connor J, 19 January 1981) I am
of the view that the taxing officer of the Supreme Court has no
power to tax the bill of costs in this matter so far as the order
relates to proceedings in the Magistrates Court.

As the law in this area is not clear I suggest that the parties
should have sought a direction from the Judge when the costs order
was made as to the appropriate scale and the appropriate person to
tax the bill in the absence as to agreement as to quantum. I note
that his Honour Mr Justice Kelly in Villiers did not consider that
he had completed the matter until this issue had been determined.
It is therefore still open to the parties to put on a Notice of
Motion before Mr Justice Gallop.

As regards the other authorities submitted on behalf of the DPP I
only note that Order 65 rule 7A is irrelevant in the determination
of an appropriate scale as there is no judgment in this matter and
in Lansley v Knight it was Magistrate Murphy who initially
determined the quantum of costs. This was not the course adopted
by Kelly J in Villiers so it is clear that clarification is
required.

38. In Villiers v Harley (1981) 36 ACTR 23, the formal order was, at 29,

The respondent should pay the appellant his costs of and incident
to the proceedings before the Court of Petty Sessions. I will hear
argument as to how the amount of those costs in that court should
be fixed.

39. The transcript of the case reveals that argument took place on 2 April 1982. Kelly J was then presented with particulars of those costs in the form of a Bill of Costs prepared as if on the Supreme Court Scale.

40. His Honour took the view, with which I respectfully concur, that he had the power himself to quantify those costs. Accepting the draft Bill of Costs as a truthful and accurate statement of the work done and expenses incurred, his Honour, without attempting an itemised taxation, allowed a lump sum fee.

41. Hoogendyk v Pinkerton, unreported, Supreme Court, Australian Capital Territory, SCA 1323 of 1980, 19 January 1981, was a decision of Connor J. Having upheld an appeal by a person who had been convicted in the Magistrates Court, his Honour ordered one-half of the appellant's costs below to be paid by the respondent. He noted in doing so,

There is a problem there, gentlemen, in that we cannot use the
machinery of this court, the taxing officer being the Registrar,
to tax costs below so the quantification of the costs below will
have to be either by agreement or by ascertainment from that
court.

42. His Honour did not refer to the order made in Juddery v Lindsay (supra).

43. There is an apparent difference of opinion between Kelly J and Connor J. The views of Connor J were ex tempore and without the benefit of argument. I am satisfied that Kelly J was right to hold that it was an option open to him to fix the costs without referral of that question to either a taxing officer or a magistrate. Further, as I have already noted, he could, in my view, have ordered the costs to be taxed by a taxing officer of this Court.

44. I note that, in fact, in Crowley v Willis (supra) the Deputy Registrar did tax a Bill of Costs including in it the costs below. The disallowance of certain items was reviewed by Gallop J who at no stage expressed the view that taxation of those costs by the Deputy Registrar was an inappropriate procedure.

45. The Deputy Registrar's memorandum was concerned to draw attention to the need for clear directions as to the method by which and the scale of costs by reference to which such costs are to be taxed. I agree with her that if the method and scale of assessment of the costs is unclear, directions should be sought. There is no scale of costs in the Magistrates Court or in this Court in respect of summary proceedings heard in that Court.

46. I would add that if this Court orders an unsuccessful respondent to pay the costs incurred below, it would be assumed, unless otherwise stated,

(i) the Court has not ordered the matter to be remitted to the
Magistrates Court for costs to be fixed;
(ii) the Court has not decided itself to fix the quantum of costs;
(iii) the Court intends the costs, if not agreed, to be taxed by a
taxing officer on such basis as seems to that taxing officer to
be fair and reasonable.

How should the costs be quantified
47. I have ruled out sending the matter back to the Magistrates Court to fix the costs. A question therefore arises as to whether I should fix a lump sum for costs, assisted by the information placed before me as to costs actually incurred, or order that costs be taxed, if not agreed.

48. In Lansley v Knight; ex parte Murphy (supra), Miles CJ considered the method which had been used by Magistrate Murphy in fixing the costs he had awarded in favour of a discharged defendant. His Worship had fixed costs, not by reference to a taxing officer's certificate although one was taken out by the parties, but his own assessment of those costs on a "global" basis. The approach was similar to that approved by Legoe J in Carter v Coombe, unreported, Supreme Court, South Australia, No. 31 of 1989, 17 November 1989, as a reasonable way for costs in a summary matter to be fixed.

49. Legoe J had said, at 13,

Courts of summary jurisdiction would normally and, in my opinion,
in actual practice universally, make a general discretionary award
of a lump sum by way of costs, having taken into account the
relevant principles as I have set them out herein. A bill of
costs, such as was submitted in this case, should not be taxed in
the way in which a master or experienced taxing officer does so
in this Court: see R M Lunn and D O Simpson, Legal Costs, South
Australia (1981) p 472. I would go further and state that a bill
of costs should not be accepted by courts of summary jurisdiction.
Where a party seeks extra or special costs by way of order in such
courts, then the applicant for costs should present evidence
(either orally with documents, invoices and receipts or by
affidavit) to establish the facts relating to the particular
application, and the court can then determine the reasonableness
or appropriateness of those extra or special costs. A bill of
costs in the form of a solicitor and client taxation is totally
inappropriate and unacceptable in such applications.

50. Miles CJ found that methodology acceptable and I respectfully agree.

51. There is also the consideration, referred to by von Doussa J in Beach Petroleum v Johnson (1995) 135 ALR 160 that, in a lengthy and complicated matter, a court might well fix a lump sum for costs because of the enormous expense, complexity and consequent delay which would be occasioned by a taxation of costs in the usual way.

52. Thus, in my view, where a Court has a discretion whether or not to order taxation of costs, it might choose to fix a lump sum where the matter is more conveniently so dealt with whether by reason of the relative simplicity of the matter or, conversely, by the enormity of it.

53. Most summary matters will fall into the former category. The present matter seems more appropriately to fall into the latter category.

The basis for an award of costs
54. The respondent submits that the appellant should be denied the costs of the proceedings in the Court below, in whole or in part, for various reasons. These include,

. That the appellant had put forward a false defence to the Court
below.

. That, even though there had been impropriety on the part of a
prosecution witness leading to entrapment, the appellant had
himself been shown, albeit as a result of this, to have behaved
unlawfully and improperly.

. That by his conduct of his defence, albeit that there were some
delays not of his making, the appellant had caused or
contributed to much of the delay which had occurred by virtue of
the manner in which his case had been conducted.

55. It is true that evidence given by the appellant was rejected. He claimed to have had an innocent state of mind. That claim was rejected. It follows that the learned Magistrate was satisfied that such claim was false. It may be that amounted to a finding that the appellant's evidence in that respect was deliberately untrue, but the learned Chief Magistrate did not find it necessary expressly to say so. It does not follow that because a witness has been disbelieved he or she has been deliberately deceitful.

56. Whilst wastage of time on a sham or hopeless defence may deprive a defendant, even if successful generally, of costs wasted thereon, it does not follow as a matter of public policy or otherwise that all costs must be denied in any case where a defendant's evidence has been rejected but nevertheless that defendant succeeds in obtaining a favourable outcome.

57. In McEwen v Siely (supra), a Full Bench of this Court endorsed the view that, broadly speaking, costs in summary prosecutions should be awarded in much the same manner as in civil cases, at least in the case of successful defendants. Different considerations apply in the case of a successful informant.

58. Consistently with that approach, their Honours in that case (Fox, Blackburn and Connor JJ) specified the manner in which the discretion to order costs below should be exercised. They said, at 136, with emphasis,

... we think that generally an acquitted defendant should have his
(or her) 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.

59. It is apparent that a defendant's insistence on a false defence where another available defence succeeds would usually have no bearing on the decision to prosecute or to continue prosecuting. It would be otherwise if the insistence on the sham or meritless defence had somehow deceived or misled the prosecution into a reasonable belief that its case was likely to succeed when, otherwise, it would not have prosecuted or continued to prosecute its case.

60. That proposition is consistent with the rule in equity proceedings referred to by Roper CJ in Eq in Redden v Chapman (1949) 50 SR (NSW) 24. There have been civil cases where a successful defendant, although not the formal initiator of the litigation has been deprived of costs by reason of his, her or its conduct, see, for example, Verna Trading Pty Ltd v New India Assurance Co Ltd (1991) 1 VR 129 and MLC Insurance Ltd v FAI Traders Insurance Co Ltd (1994) 49 FCR 23.

61. In Latoudis v Casey (supra) the High Court specifically focussed on the award of costs to successful defendants in summary criminal prosecutions. The majority, Mason CJ, Toohey and McHugh JJ, agreed with the general principle that this Court had affirmed in McEwen v Siely in following the South Australian Supreme Court decision in Hamdorf v Riddle (1971) SASR 398.

62. In Latoudis v Casey, Mason CJ stated at 542, that in the exercise of the statutory discretion to order costs, "... a court should look at the matter primarily from the perspective of the defendant". The purpose, though not necessarily the end result, is to indemnify the successful defendant. However, it is no part of the role of a costs order to punish the informant for acting improperly any more than it is to reward the informant for having acted reasonably.

63. His Honour, at 543, did caution that there was not necessarily, "... a complete analogy between the discretion to award costs in civil proceedings" and the award of costs in summary criminal prosecutions. An instance given of a relevant distinction is the lack of capacity of a defendant in a criminal matter to propose or enter into a compromise and the serious consequences to livelihood and reputation of an adverse finding.

64. As to disentitling factors, his Honour referred, at 544, by way of example, to a situation where,

... the defendant, by his or her conduct after the events
constituting the commission of the alleged offence, brought the
prosecution upon himself or herself, then it would not be just
and reasonable to award costs against the prosecutor.

... if a defendant has been given an opportunity of explaining his
or her version of events before a charge is laid and declines to
take up that opportunity, it may be just and reasonable to refuse
costs. Likewise, if a defendant conducts his or her defence in
such a way as to prolong the proceedings unreasonably, it would
be just and reasonable to make an award for a proportion of the
defendant's costs.

65. That is a statement consistent with the proviso referred to by this Court in McEwen v Siely, at 136.

66. It is not a disentitling factor that the prosecutor has or appears to have a good prima facie case. Nor that the defendant, had he or she acted more prudently or properly, might have avoided creating the suspicion giving rise to the prosecution.

67. Toohey J noted, at 564, that conduct of the latter kind necessarily precedes any consideration of prosecution. It is usually not conduct which misleads or diverts a police investigation so as to direct that investigation towards prosecuting the defendant who has engaged in that conduct when otherwise it would not have done so.

68. Latoudis v Casey itself concerned a prosecution for possession of stolen goods. Although the defendant's explanation for possession of the stolen goods was not accepted by police, it was accepted by the Magistrate. The defendant's conduct and explanation had rendered it reasonable for the prosecution to have been instituted and continued.

69. That fact was not considered to have rendered it just and reasonable to refuse an order for costs in favour of the successful defendant.

70. An opportunity for explanation which a defendant unreasonably declines is a possible disentitling factor. At 565, Toohey J said,

This has nothing to do with the right to silence in criminal
matters. A defendant or prospective defendant is entitled to
refuse an explanation to the police. But if an explanation is
refused, the successful defendant can hardly complain if the court
refuses an award of costs, when an explanation might have avoided
the prosecution.

71. That, of course, assumes that had the explanation then available been offered, prosecution would have been declined or discontinued.

72. McHugh J referred to disentitling factors, at 569, in the following terms,

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 defendant occasioned
unnecessary expense in the institution or conduct of the
proceedings.

73. His Honour concluded, at 570, that it was not a disentitling factor that the conduct of the defendant had been such as to,

... give rise to a suspicion or probability that he or she was
guilty of the offence the subject of the prosecution.

74. That statement is consistent with the views expressed by Kelly J in R v Hermes; ex p Boyd (1984) 53 ACTR 15.

75. It follows that the conduct of the appellant, even though illegal and improper, in offering money to Mr Hedley to influence him in the performance of his duty is not a factor which should disentitle the appellant to an order for costs.

76. It should be emphasised that this in no way signals any approval of his conduct or of his unmeritorious defence. Success, whether due to a matter going to the merits of the case or as a result of a technicality, nevertheless leaves intact the expectation which otherwise there would be that the successful defendant should have costs. In other words, it is in no way an answer to a claim for costs that the defendant was guilty of the substantive criminal conduct, but the prosecution has failed for other reasons, see R v Hermes; ex p Boyd (supra) per Kelly J, at 19,

It seems to me that merely to have been involved in an incident in
circumstances where a prosecutor or informant may properly bring
proceedings is not sufficient to constitute conduct which brings
the proceedings upon a defendant.

77. His Honour did add a qualification,

It may be that the actions of a defendant are so bad and the
success which he achieves in the prosecution, subsequently, so
lacking in merit that automatically he should not have his costs.

78. This observation should not be taken too far. The seriousness of the alleged criminal conduct of the defendant is not relevant. The reference to "bad" conduct on the part of the defendant, it seems to me, must be related to relevant conduct apart from that alleged to constitute the offence.

79. In this case, the prosecution had secretly taped conversations between Mr Hedley and the appellant. That was, in essence, the evidence against the appellant. His success on the issue of entrapment in no way denied the truth or accuracy of those tapes.

80. In my opinion, the prosecution would not, in 1985, have refrained from prosecuting the appellant had they formed the same judgment on those tapes as did the learned Chief Magistrate. At least until R v Hsing (1991) 25 NSWLR 685 it would not have been assumed that "entrapment" would lead to a stay of proceedings. Indeed, even following Ridgeway v R [1994] HCA 33; (1995) 184 CLR 19, it is not the case that a finding of entrapment will inevitably lead to a stay of proceedings.

81. There was, however, one particular matter arising out of the events found to constitute entrapment which the informant contended, should disentitle the appellant to costs below. It relates to the infamous bankcard slip given by Mr Hedley to the appellant. It was, of course, very relevant to the issue of the entrapment as it not only evidenced improper conduct on Mr Hedley's part, but more significantly, gave force to an impression which the appellant might well have gained that Mr Hedley would corruptly influence the tender process in his favour. That is not to say that Mr Hedley intended to give that impression nor that he, in fact, intended to exercise any improper influence on the tender process.

82. In R v Dainer; ex p Milevich (1988) 91 FLR 33, Miles CJ declined to overrule a Magistrate's decision to refuse costs to a successful defendant. In that case the defendant's son had secretly taped the conversation occurring when the events the subject of the charge took place. The tape was inconsistent with the evidence of the principal prosecution witness. The Magistrate refused costs because, as he viewed it, had the prosecuting authorities been made aware of the tape before the hearing, they may have abandoned the prosecution.

83. On appeal from that decision by way of order to review, his Honour was concerned only with the relevance of the consideration, not with the decision itself. As he noted at 35-6,

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 ... But
whether the view be taken that non-disclosure 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.

84. In the present case, the respondent points to the non-disclosure by the defence of its possession of the bankcard slip in question. That non-disclosure is, of course a relevant matter. However, there are, in my view, reasons for declining to take the view that its non-disclosure is a sufficient reason to deprive the appellant of some or all of his costs.

85. In the first place, it was a document the witness, Mr Hedley, had himself created. In producing it, the defence could not have known that he would state that he had forgotten about it. It was relevant and legitimate to ask him to explain it. Although reminded of the document by defence counsel, Mr Hedley was apparently unable to recall it, though he frankly acknowledged his hand-writing. To suggest that he might have explained it satisfactorily given advance notice of it or that, faced with the lack of a satisfactory explanation, the prosecution would quietly have folded its tents and walked away is, to my mind, sheer speculation.

86. After all, Mr Hedley's credibility as a witness was not relevant to prove the events comprising the offence. That evidence was recorded on tape. Even after knowing of the document and its significance on the question of entrapment, the prosecution lost none of its enthusiasm and, indeed, achieved a favourable result in the first instance.

87. In any event, a contrary view would suggest that a fraudulent plaintiff in a civil claim could resist a claim for costs if exposed on surveillance tapes not disclosed before he or she was cross-examined about their contents. Advance warning of such material might well deprive such material of its decisive forensic effect. Such a view, reasonably entertained, should not, in my view, be regarded as disentitling a successful litigant to costs.

88. For those reasons, I do not regard the failure to disclose the bankcard voucher to the prosecution as a disentitling factor on the question of costs.

89. It was, conversely, suggested that a factor favouring an award of costs was the tainted provenance of the prosecution evidence.

90. Reference was made to R v Soames (sic - Somes); ex p Johnson [1992] ACTSC 19; (1992) 106 FLR 97. In that matter certain prosecution witnesses had, apparently, failed to come up to their proofs of evidence. The defendant was acquitted. The Magistrate, obviously convinced that these witnesses had lied to aid the defendants, refused to make a costs order in favour of the defendant. An appeal was taken by way of order to review in respect of that refusal.

91. On the hearing of the appeal, Miles CJ noted that Latoudis v Casey suggested that the discretion to refuse costs was narrower than he had assumed in R v Dainer; ex p Milevich (supra), albeit that latter decision had itself been cited with approval therein.

92. In the case before him, R v Somes (supra), his Honour noted, at 101,

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 lies and his wish not to lend his
authority to a mockery of justice by making an order for costs.

93. Notwithstanding that understandable consideration, his Honour felt constrained to find that to refuse an order for costs in those circumstances, absent evidence that the defendants were knowingly concerned in any conspiracy by the witnesses, was an error of law.

94. It is not suggested in this case that the appellant in some unspecified fashion had prevailed upon Mr Hedley to tacitly concede improper conduct although no such impropriety had occurred. Nor is it suggested that Mr Hedley deliberately fabricated the bankcard document so as to enable the appellant to demonstrate entrapment.

95. There is no need to attach any pejorative epithets to the prosecution case or those concerned in it. Whether or not there was improper conduct on the part of the prosecution or any of its witnesses seems to me irrelevant to whether the appellant should be awarded the costs of the proceedings below.

96. I also do not accept the submission of the appellant that the matters put to Mr Hedley and Commander Dau in cross-examination "should have made it obvious to the prosecution that their position was untenable". It is true that the prosecution might have concluded from those matters that there had been entrapment. They might have concluded that Mr Hedley's credibility had been seriously damaged. However, neither of those matters affected at all the capacity of the prosecution case to demonstrate that the offence alleged had been committed by the appellant. It had the effect only of enlivening a discretion to stay proceedings if a relevant court considered that the proceedings would, if persisted in, be an abuse of process. That was, at the very least, a seriously arguable question.

97. In general, therefore, neither the apparent improper conduct of the appellant nor the conduct of the defence should disentitle the appellant to an order for costs. Conversely, the conduct of the prosecution constituting entrapment does not add to the strength of the appellant's application for costs.

98. This finding does not mean that the appellant should have all the costs he has incurred in respect of the entire hearing. Insofar as the appellant unreasonably caused adjournments or wasted court time or over consumed legal services, costs should be refused in respect of that part or aspect of the proceedings.

99. In my judgment of 16 March 1995, I noted that the proceedings had been attended by considerable delay and discontinuity. To some extent that must have added to the cost of the proceedings.

100. One must, of course, be cautious, particularly in a criminal case, before imposing what is tantamount to a costs sanction on a successful defendant. As the High Court majority judgments in Latoudis v Casey expressly note, in a criminal prosecution there are no pleadings. Everything is legitimately in issue. The defendant has no duty of disclosure but the prosecution must disclose all relevant material. Nevertheless, the public interest in the efficient conduct of criminal litigation warrants some denial of costs to a successful defendant who wastes the time of the court whether by lack of reasonable cooperation or by pursuing unarguable points or any other time-wasting conduct after due allowance for proper forensic objectives.

101. Mr Hastings QC, for the respondent, offered a breakdown of the 95 days the matter was before the learned Chief Magistrate. Those days comprised, he submitted,

. 27 days of argument;
. 49 days of evidence, including cross-examination;
. 13 days of playing tapes; and
. six days of stay argument.

102. That estimate differs to some extent from that offered in the course of the substantive hearing of this appeal, see (1995) 78 A Crim R 242. However, I will accept Mr Hastings' estimates as accurate for present purposes.

103. The stay argument referred to was not related to the issue of entrapment but to assertions of insufficient disclosure by the prosecution. That claim, prosecuted up to the High Court, failed to win any judicial support albeit that there was found to have been some degree of avoidable delay and indecision on the part of the prosecution. The remedy for the delay and indecision in question seems to me to have been somewhat over-enthusiastically pursued by the appellant. I can understand why the respondent would submit that those proceedings wasted time and caused delay. However, some part of the days of argument before the learned Chief Magistrate would seem to have been justified given the acceptance that the prosecution had been less than diligent in providing information. The costs of the unsuccessful appeals have, of course, been dealt with elsewhere.

104. The Full Federal Court, on appeal from my decision in this matter, commented on the length of time the proceedings had occupied before the Magistrates Court. Their Honours could not comprehend why three weeks of court time was occupied with preliminary matters that should have been attended to before the hearing began. No doubt some part of that time was necessary but it seems to me that the appellant did contribute to some extent to that apparently excessive consumption of court time.

105. The cross-examination of Mr Hedley and Commander Dau appears to have been lengthy and tedious but it is difficult to criticise the appellant for that. One should be slow to accuse the appellant and his counsel of pursuing unprofitable lines of cross-examination given that the proceedings were, until the learned Chief Magistrate decided to proceed by way of summary trial, committal proceedings. The matter should not be judged merely by basking in the warm glow of hindsight.

106. Nevertheless, one matter stands out. The portion of the hearing commencing 26 February 1990 was occupied by playing the tapes of the secretly recorded conversations. That was then said to have taken 12 days. Their Honours commented thereon, at 16,

Why it was thought useful to do this we do not know. There were
already transcripts of the tapes. Their accuracy was not in
dispute. Listening to tapes for 12 days must have been
excruciatingly boring. More importantly, it was a waste of time
and money.

107. I respectfully agree. The appellant had sought that this be done. He should not have the costs of it. The respondent now asserts that the number of days so occupied was 13 rather than 12 but nothing significant turns on that.

108. I have already indicated that, contrary to Mr Hastings' submission, it is appropriate for the purpose of saving both time and money to fix, globally, a lump sum for costs below. I have also noted that it is not necessary to send the matter back to the court below to have those costs fixed.

109. I have regard to Exhibit 1, which details, though it does not itemise, the appellant's claim for indemnity for costs paid or payable by him. I accept that, in general, it accurately sets out the cost to him of the proceedings. The exhibit includes costs incurred in pursuing various appeals, including those which were unsuccessful. I exclude those matters from consideration.

110. I accept that it was reasonable for the appellant to be represented by senior counsel and, usually, by junior counsel in addition to an instructing solicitor.

111. Approaching the matter in that way, I would allow, for costs and disbursements in respect of the costs below, the sum of $600,000.00.

112. That sum represents the average cost on a daily basis of a hearing which I believe should have taken approximately 60 days had the appellant's defence been conducted reasonably and assuming the presence on those days of senior and junior counsel with instructing solicitor taking account of necessary preparation and ancillary expenses.

113. The respondent will pay that sum to the appellant by virtue of the order made by me on 16 March 1995.