Andrew Kelly Obad v Phillip Glen McDonald [1999] ACTSC 3 (5 February 1999)

Last Updated: 17 June 1999

Andrew Kelly Obad v Phillip Glen McDonald

[1999] ACTSC 3 (5 February 1999)

CATCHWORDS

COSTS - whether conduct of successful defendant in summary proceedings disentitled defendant to order for costs - whether magistrate wrong in refusing order for costs in favour of successful defendant - no error shown.

Motor Traffic Act 1936, s 174

McEwen v Siely (1972) 21 FLR 131

Hamdorf v Riddle (1971) SASR 298

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

A & B v Director of Family Services (unreported, Supreme Court of the Australian Capital Territory, 26 March 1997, Higgins J)

Emmanuel v Dau (1996) 87 ACR 417

Storer v Murphy (No. 2) (1991) 104 FLR 313

Oshlack v Richmond River Council [1998] HCA 11; (1998) 152 ALR 83

Friends of Hinchinbrook Island Society Inc v Minister for Environment & Ors (unreported, Federal Court of Australia, 30 April 1998)

Macquarie Dictionary (1981) at 537

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 35 of 1998

Coram: Miles CJ

Supreme Court of the ACT

Date: 5 February 1999

IN THE SUPREME COURT OF THE )

) No. SCA 35 of 1998

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: ANDREW KELLY OBAD

Appellant

AND: PHILLIP GLEN McDONALD

Respondent

ORDER

Judge Making Order: Miles CJ

Where Made: Canberra

Date of Order: 5 February 1999

THE COURT ORDERS THAT:

1. The appeal be dismissed and the orders of the Magistrate be confirmed.

1. There is probably no decision of this Court that is quoted more frequently than McEwen v Siely (1972) 21 FLR 131, which brought to an end a practice, long established in this and other jurisdictions, that a successful defendant to a summary prosecution should not have an order for costs against an informant who is a policeman and who has brought the information in the execution of duty, unless there is some unreasonableness in laying or proceeding with the information. The previous decision of the Full Court of the Supreme Court of South Australia in Hamdorf v Riddle (1971) SASR 398 tended to attract less enthusiasm, no doubt because it supported an award of costs to the successful party without discriminating between successful informants and successful defendants.

2. In McEwen v Siely the words of the Full Court, consisting of Fox, Blackburn and Connor JJ at 136 are so clear (they are printed in italics in the reported judgment) that they have been treated as laying down a rule, namely 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".

3. The rule in McEwen v Siely was not always recognized by courts outside the Australian Capital Territory. However, when it was approved by the High Court in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, it might have been expected that it would have been applied thereafter without controversy. Yet, the principles behind the rule were the subject of five separate judgments in the High Court, two of them in dissent. Thus cases continue to occur in which the application of the rule is in dispute and the principles behind it continue to be the subject of lively submissions and judicial discussion. The extension of the rule from summary criminal proceedings into other areas of litigation, such as committal proceedings and quasi criminal proceedings, and other proceedings brought by public authorities pursuant to statutory duty or by private persons in the public interest, is not finally settled: see A & B v Director of Family Services (unreported, Supreme Court of the Australian Capital Territory, 26 March 1997, Higgins J); Emmanuel v Dau (1996) 87 ACR 417; Storer v Murphy (No. 2) (1991) 104 FLR 313.

4. If there is a principle behind Latoudis v Casey which favours a successful defendant in "public interest" litigation, it is not clear what that principle is. In Oshlack v Richmond River Council [1998] HCA 11; (1998) 152 ALR 83 the majority in the High Court decided that it had been open to Stein J at first instance to decline to award costs in favour of the successful defendant and that the Court of Appeal (NSW) was wrong in its view that his Honour's decision was in conflict with Latoudis v Casey. In contrast, in Friends of Hinchinbrook Island Society Inc v Minister for Environment (unreported, 30 April 1998), a similar case of "public interest" litigation, a Full Court of the Federal Court considered Oshlack's case but decided that the trial judge was not wrong in making an order for costs in favour of the successful defendant. The pendulum continues to swing between decisions that favour the "usual order" and those which emphasise the open nature of the discretion.

5. It may be that the cases, including the separate judgments in Latoudis v Casey itself, illustrate the unending historical tension in Australia between the insistence of legislatures that an award of costs is discretionary and the repeated application of a judge-made principle that, unless there is reason for the contrary, whether in statute or in policy, the spoils of the costs go to the victor in litigation. A resolution of the conflict is contained in the judgment of Mason CJ in Latoudis v Casey. Although (at 539) describing the discretion as "unfettered" and approving (at 541) the emphasis by other courts on the unconfined nature of the discretion, the Chief Justice was of the clear view that the formulation by the High Court of principles or guidelines according to which the discretion should be exercised, would not constitute a fetter upon the discretion and would avoid exercises of discretion seen to be inconsistent. The rule was reformulated by Mason CJ at 542 in the following words:

"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."

6. In the light of the majority judgments and particularly the formula of Mason CJ in Latoudis v Casey, it would be a bold magistrate who refused an order for costs in favour of a successful defendant without taking care to explain in reasons what it was about the circumstances of the case that took it out of the ordinary and made it just and reasonable in that case to deprive the defendant of an order for costs. Experience suggests that such a refusal is almost inevitably the subject of an appeal and a very close scrutiny of everything the magistrate had to say.

7. Thus it was in the present case. The appellant was prosecuted for an offence against s 174 of the Motor Traffic Act 1936, that is, in effect, for failing or refusing to give information to a member of the police force which might lead to the identification of the driver of a vehicle involved in an offence when the information was required by the member and it was in the appellant's power to give it.

8. The Magistrate made certain undisputed findings. The appellant was the owner of the motor vehicle concerned. The vehicle was involved in an offence of failing to stop after an accident on Dumas Street, Mackellar, on 25 March 1997. Constables McDonald and Allen went to the appellant's home in the early hours of the following morning in order to find out who was the driver at the time of the accident. It appears that the vehicle was at the premises, but the Magistrate was unable to make a finding whether the bonnet was warm or hot or not at all warm or hot. The police spoke to the appellant's mother at the door to the house. There was much commotion, including raised voices, police radios and flashing lights. Phone calls were made. The appellant's girlfriend became involved. The appellant's mother refused to allow the police to interview her son. She decided to do so because of Constable Allen's intimidating approach to the situation. Some days later the appellant contacted the police. A demand was made of him that he furnish information that might lead to the identification of the driver of the vehicle at the time of the accident. The appellant did not respond to the demand and his lack of response gave rise to the charge.

9. The Magistrate dismissed the information on the ground, shortly stated, that when the information was demanded of him, "it may be that [the appellant] was unable to do that". I understand this to mean that the Magistrate was not satisfied of an essential element of the offence charged, namely that it was within the appellant's power to give the information required.

10. The application for costs followed. For the purposes of that application the Magistrate found that at the time of the commotion at the house, the appellant was inside, well aware of what was happening and hoping it would go away. That finding is disputed.

11. The transcript of evidence was not made available on the appeal. However, I take the evidence to be sufficiently indicated in the undisputed findings of fact. An interesting question of admissibility, which nobody addressed, is whether evidence of the mother's statement and behaviour was admissible to prove the presence of the appellant inside the house. But the evidence was admitted, not objected to, and in the absence of further evidence from the mother that she was dissembling, pretending to the police that he was there and pretending to refuse to go and get him, when he was not there at all, I think that the Magistrate was entitled to treat the evidence of the mother's statement and conduct as probative of the presence of the appellant in the house.

12. The appellant was represented by counsel, and if there was any issue about his presence in the house, the mother would have been asked about it by his counsel when she gave evidence. A court is entitled to have regard to the way in which a case is conducted in order to assess the evidence and what inferences may be drawn from it.

13. Once the Magistrate was satisfied that the appellant was in the house, the Magistrate was further entitled to infer from that fact and the circumstance of the commotion that the appellant heard what was going on and knew that the police wanted to speak to him about who had been driving his car at the time of the accident but decided nevertheless not to accede to their wishes. The Magistrate described this as a decision to "lie doggo". To lie doggo, according to the Macquarie Dictionary (1981) at 537 means "to hide; remain in concealment". In the Magistrate's assessment, that decision by the appellant, whilst not being conduct which brought the prosecution upon himself, was a consideration which made it unjust to award costs in his favour. The Magistrate also found and took into account that the appellant made no genuine attempt to contact the police until a few days thereafter, being fully aware in the meantime that the police were wanting to know about who was driving his car at the time of the accident.

14. It was submitted in the appeal that the Magistrate had wrongly deprived the appellant of his costs for his mother's behaviour and not for his own behaviour. It is true that the Magistrate was strongly critical of the mother. It is also true that the appellant cannot be blamed for the conduct of his mother. I agree that the mother's behaviour of itself would not be a consideration which would make it unjust to award him his costs within the terms of Latoudis v Casey. Nevertheless, the mother's behaviour was one of the relevant surrounding circumstances and the Magistrate was correct in not refraining from making findings relating to the mother's behaviour (about which the appellant must have been aware). On a proper analysis of the Magistrate's remarks, I do not think that the mother's behaviour was the reason, or one of the reasons, why the Magistrate declined to make an award of costs in the appellant's favour. Rather, the reason the Magistrate declined to do so was the behaviour of the appellant himself, in refraining to take the simple step of going to the door of his house to allow the police to speak to him and in further refraining to contact the police for several days thereafter, at all times knowing that the police required information from him about who was driving his vehicle at the time of the accident.

15. There is another matter which was not articulated in the Magistrate's reasons, but may well have been at the back of his mind and which provides further justification for the decision to refuse costs. By deciding not to go to the door to allow the police to speak to him when he knew that his mother had let them know that he was there, the appellant was likely to throw greater suspicion on himself and as a consequence increase the likelihood that a prosecution would follow, even though that prosecution eventually failed.

16. In my view, it has not been shown that it was not open to the Magistrate to regard the appellant's conduct as a factor which made it unjust to award the appellant his costs of the failed prosecution. The appeal is dismissed and the orders of the Magistrate are confirmed. I will hear the parties on the question of costs of the appeal.

I certify that the sixteen (16) preceding paragraphs are a true copy of the Reasons for Judgment herein of his Honour the Chief Justice.

Associate:

Date: 5 February 1999

Counsel for the appellant: D Romano

Solicitors for the appellant: Romano & Co

Counsel for the respondent: S Cronan

Solicitors for the respondent: ACT Director of Public Prosecutions

Date of hearing: 11 November 1998

Date of judgment: 5 February 1999