Appeal of Joel Waller and Michael Hayes [2007] NSWDC 349

New South Wales District Court

CITATION: Appeal of Joel Waller and Michael Hayes [2007] NSWDC 349

HEARING DATE(S): 3 December 2007

JUDGMENT DATE: 3 December 2007

JURISDICTION: District Court of NSW

JUDGMENT OF: Cogswell SC DCJ at 1

DECISION: Appeal dismissed.

CATCHWORDS: Criminal law - Costs - Appeal to District Court from Magistrate's refusal to award costs to successful defendants

ss 3, 11, 20, 28(3), 56 Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: s 104(2)(c) Justices Act 1902 Criminal Appeal Act 1912

Palmer v Haddad [2000] NSWSC 545 CASES CITED: Murdoch v Petterson [2005] NSWSC 1359 Director of Public Prosecutions v Roslyndale Shipping Pty Limited (2003) 59 NSWLR 210

Regina PARTIES: Joel Waller Michael Hayes

FILE NUMBER(S): 07/22/1258; 07/22/1248

SOLICITORS: Mr Weller for the Appellants Mr Musico for the Respondent Prosecutor

JUDGMENT 1. Two young men were charged with not wearing seat belts. As it happened the police issued the Court Attendance Notices to the wrong persons. Hence the young men both had good defences. They went to the Local Court and defended the prosecution. In each case they were both acquitted. They both sought costs against the prosecutor and the Magistrate refused in each case to make an order for costs.

2. Both men appeal to this court under s 11 of the Crimes (Appeal and Review) Act 2001. Their appeals both raise the same point. Their appeals are against the refusal of the learned Magistrate to award them costs.

3. Mr Weller who appears for both appellants in this court argues that they have a right of appeal against the Magistrate's order to refuse costs. He says that right arises from the fact that they are appeals under s 11(1) against a "sentence" by a Local Court. He refers to the extended definition of "sentence" contained in s 3 of the Crimes (Appeal and Review) Act. In that extended definition clause (e) provides that "sentence" means as follows: " (e) any order for costs made by a Local Court against a person in connection with summary proceedings taken against the person. " In a nutshell Mr Weller's argument is that the learned Magistrate's refusal to make an order for costs amounted to an order for costs.