Local Court New South Wales Medium Neutral Citation: Trevitt v Police [2012] NSWLC 4 Hearing dates: 24/04/12 Decision date: 18 May 2012 Jurisdiction: Criminal Before: Buscombe LCM Decision: No jurisdiction to hear costs application Catchwords: COSTS - when costs may be awarded to accused person - meaning of "at the end of summary proceedings" - s 213 Criminal Procedure Act 1986 Legislation Cited: Costs in Criminal Cases Act 1967 Criminal Procedure Act 1986 Cases Cited: Fosse v DPP (1989) 16 NSWLR 540 R v Manley (2000) 49 NSWLR 203 Category: Costs Parties: Steven Rodney Trevitt Police Representation: Mr Brady for Mr Trevitt Nyman Gibson Stewart Solicitors for Mr Trevitt Police did not seek to be heard File Number(s): 2010/75864 Judgment Introduction 1On 11 March 2011 I delivered a judgment in which I dismissed a charge of assault police in the execution of duty, and a charge of intimidate a police officer in the execution of duty, brought against Mr Trevitt. The transcript of the judgment reveals that I dismissed both charges at T38.30-35. At T38.17 I said to the parties, "If there's nothing further, I'll adjourn". Neither party indicated to me that there was anything further to be raised with me concerning the proceedings. Mr Trevitt was legally represented on the day that I delivered judgment. 2It is accepted by the Police and the representatives of Mr Trevitt that no application for costs was made to me prior to my adjourning after the delivery of my judgment dismissing the two charges. On 9 March 2012 a letter dated that day, addressed to myself and written by the solicitors for Mr Trevitt, was received by the Chief Magistrate's Office in Sydney. The letter was forwarded to the Newcastle Court House where I am currently sitting and was received at Newcastle on 14 March 2012. 3Shortly after the letter was received at Newcastle Court House it was brought to my attention. I will attach a copy of that letter and the document attached to it, to this judgment. The letter asserted, clearly wrongly, that a costs application had in fact been made in the proceedings and that the parties had agreed not to deal with the application until after the transcript of my judgment had been received. The letter further stated that submissions on behalf of Mr Trevitt had been served on the Police, and that agreement had been reached that it was appropriate to award costs against the Police. The letter also asserted that it had been agreed that $36,300 inclusive of GST had been assessed as reasonable costs for the work done on behalf of Mr Trevitt. 4Enclosed with the letter was a document headed in part, "Costs Application - Criminal Procedure Act Orders For Costs - By Consent". That document essentially set out orders reflecting the agreement that the parties had apparently reached. Those orders also wrongly set out that a costs application had been made in the proceedings. The letter requested that I deal with the matter in chambers and sign the Consent Orders and have them returned to the solicitors for Mr Trevitt. The letter indicated that the orders had been signed by the solicitor for Mr Trevitt and the police prosecutor who had originally conducted the hearing. 5In view of the fact no costs application had been made to me at any time, and a year had passed since I had delivered my judgment dismissing the two charges, I directed the Deputy Registrar at Newcastle Court House to write to the solicitors for Mr Trevitt. A copy of that letter will also be attached to this judgment. 6The Deputy Registrar's letter stated that I was not prepared to sign the Consent Orders document. If the issue was to be pursued the matter was to be re-listed before me to hear argument as to my power to hear a costs application, given what had occurred, or perhaps more accurately, had not occurred. 7The matter was listed for argument before me on 12 April 2012 and Mr Brady of counsel appeared on behalf of Mr Trevitt. Mr Brady indicated he mentioned the matter for the Police who did not wish to be heard. The Relevant Statutory Provision 8The awarding of costs is dealt with in Division 4 of Part 2 of Chapter 4 of the Criminal Procedure Act 1986 (CPA). Section 212 of the CPA provides: 212 When costs may be awarded (1) A court may award costs in criminal proceedings only in accordance with this Act. (2) This Act does not affect the payment of costs under the Costs in Criminal Cases Act 1967. 9The power to award costs is contained in s 213 of the CPA which provides as follows: 213 When professional costs may be awarded to accused persons (1) A court may at the end of summary proceedings order that the prosecutor pay professional costs to the registrar of the court, for payment to the accused person, if the matter is dismissed or withdrawn. (2) The amount of professional costs is to be the amount that the Magistrate considers to be just and reasonable.(3) Without limiting the operation of subsection (1), a court may order that the prosecutor in summary proceedings pay professional costs if the matter is dismissed because: (a) the prosecutor fails to appear or both the prosecutor and the accused person fail to appear, or (b) the matter is withdrawn or the proceedings are for any reason invalid. (4) (Repealed) (5) The order must specify the amount of professional costs payable. 10The discretion to award costs is fettered by s 214 of the CPA. 11Section 213 was inserted into the CPA by the Crimes Legislation Amendment Act 2004 and was amended by the Courts Legislation Amendment Act 2006. The amendment does not impact upon the issue I need to decide. 12Mr Brady primarily relied upon the decision of R v Manley (2000) 49 NSWLR 203, a decision of the Court of Criminal Appeal in relation to the Costs in Criminal Cases Act 1967. I will discuss the relevance of that decision later in these reasons. Mr Brady also submitted that the costs provisions under the CPA were compensatory in nature and ought to be construed liberally. Mr Brady submitted that the delay in the bringing of the application for costs only went to the issue of the Court's discretion to award costs, and not to the Court's power or jurisdiction to do so. Relevant authorities 13Counsel did not refer to any authority that has considered s 213 of the CPA, and my own researches turned up no case that has considered the provision and the point that arises for decision here. There have been cases that have considered s 214 but none, in my opinion, shed any light on the current issue. 14As I noted above, counsel relied heavily on the decision in Manley. The provision under consideration there was s 2 of the Costs in Criminal Cases Act. That provision, as considered in Manley, provided as follows: 2. The Court or Judge or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may - (a) where a defendant, after a hearing on the merits, is acquitted or discharged as to the information then under inquiry; or (b) where, on appeal, the conviction of the defendant is quashed and - (i) the defendant is discharged as to the indictment upon which he or she was convicted; or (ii) the information or complaint upon which the defendant wasconvicted is dismissed; grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 15In Manley, six years had passed between the Court of Criminal Appeal's judgment allowing Mr Manley's appeal and the bringing of an application under the Costs in Criminal Cases Act. The Court of Criminal Appeal that was to determine the application was made up of different judges from those that sat to hear the appeal. By majority the Court of Criminal Appeal determined that although differently constituted, it had jurisdiction to determine the application. The issue of delay was seen by the majority to go to the Court's discretion rather than to jurisdiction: see Wood CJ at CL at [6] and Simpson J at [80]. 16It is obvious that Manley concerned a different statutory provision and this Court must interpret the provision under which Mr Trevitt's application is sought to be brought. I will return to that issue shortly. 17The Court of Criminal Appeal in Manley discussed the decision of Smart J in Fosse v DPP (1989) 16 NSWLR 540 and distinguished that authority on the basis that it involved a different statutory provision than that which was under consideration in Manley. I acknowledge immediately that Fosse concerned a Magistrate's power to award costs at the end of failed committal proceedings under the now repealed s 41A of the Justices Act 1902. I also acknowledge that the provision considered in Fosse is different to that which I must construe and is easily distinguishable. I consider that it is appropriate to refer to Fosse, if only to further acknowledge that the terms of the particular provision under consideration are of fundamental importance. 18In Fosse, the provision concerned provided that a Magistrate "when making an order discharging a defendant as to the information then under inquiry...may, in and by an order made by the Justice or Justices, adjudge that the informant shall pay to the clerk of the court to be paid to the defendant such costs as to the Justice or Justices seem just and reasonable." 19In Fosse, on the day that Mr Fosse was discharged by a Magistrate no application for costs was made. The Magistrate continued with the committal against other defendants and during that continued hearing an application for costs was made by counsel for the discharged defendant. The Magistrate concluded he had no jurisdiction to hear the application. 20Smart J concluded that the Magistrate was correct in his interpretation of the relevant provision. It was necessary for the application for costs to have been made on the day that the defendant was discharged although it was not necessary that the application be determined that day. His Honour observed that finality was important in litigation in the course of his judgment: at 547. Conclusion 21In my opinion, the results in Manley and Fosse depended upon the terms of the statutory provisions under consideration. As counsel for Mr Trevitt relied heavily upon Manley in his submissions I make the following observations about the differences between the provision considered in Manley and that which I am required to construe. 22In my opinion there are significant differences between the provision considered in Manley and s 213 of the CPA. In Manley the provision empowered the Court of Criminal Appeal to grant a relevant certificate where on appeal a conviction was quashed, and the defendant was discharged as to the indictment upon which he or she was convicted; or the information or complaint upon which the defendant was convicted was dismissed. The provision applied to (and in its current form continues to apply to) summary proceedings heard by Magistrates. In relation to hearings as distinct from appeals, the provision applied "where a defendant after a hearing on the merits, is acquitted or discharged as to the information then under inquiry". In terms of a hearing before this court, the provision applied "after a hearing on the merits". 23There was no temporal connection between the granting of a certificate and either the acquittal or discharge after a hearing on the merits, apart from the fact the certificate was to be granted "after" the relevant hearing. Similarly, in relation to appeals, there was no temporal connection between the granting of a certificate and the appeal. See in that regard the judgments of Wood CJ at CL and Simpson J. 24In my opinion, the position is different under s 213 of the CPA. The section provides that an order for costs may be made "if the matter is dismissed or withdrawn". In doing so the provision makes clear that an order for costs may be made after the charge is dismissed or withdrawn. However, the provision also provides the point at which after a charge has been dismissed or withdrawn, costs may be ordered by the Court. That point is "at the end of summary proceedings". In my opinion, given the wording of s 213, the Court is empowered to order costs be paid if a charge is dismissed, after the charge is dismissed, but may only do so at the end of the proceedings. 25The word "at" is a preposition that the Macquarie Dictionary defines as "a particle specifying a point occupied, attained, sought, or otherwise concerned as to place, time, order, experience, etc." What is significant is that the word "at" in its ordinary usage, denotes a specified point. In the context of s 213 of the CPA, the specified point when costs may be awarded in summary proceedings is "the end" of those proceedings. 26There is nothing about the context of s 213 of the CPA that suggests that the phrase "at the end of summary proceedings" should be given any interpretation other than its ordinary English meaning. If that meaning is given to the phrase, in my opinion the Court may award costs after the dismissal of a charge, but must do so at the end of the proceedings. It follows from that construction of s 213, that an application may be made for costs, after the dismissal of the charge, but prior to the end of the proceedings. It follows that the Court, in my opinion, is required to provide an opportunity for an application for costs to be made before summary proceedings are at an end. 27When an opportunity to make an application for costs is given to an accused, upon dismissal of the charge, two things may happen. An application for costs may be made by the accused, or no application is made. If no application is made, in my opinion, the summary proceedings are at an end. The charge has been dismissed, there is no application before the Court, and therefore there is nothing further that the Court is required to determine. If an application for costs is made, the summary proceedings, in my opinion, are not at an end but will be once that application is decided. It is of course not necessary for the application for costs to be heard to finality or determined on the day of the dismissal of the charge, but it must be made. 28In my opinion, after dismissing the charges against Mr Trevitt I gave his representative an opportunity to make such an application when, as I referred to earlier, I said, "If there's nothing further I'll adjourn". No application for costs having been made, the summary proceedings were at an end. 29For the above reasons I am of the opinion that after that time I had, and continue to have, no jurisdiction to hear an application for costs. 30My decision may seem harsh, in circumstances where the Police have agreed to the making of an order for costs in an agreed amount. The parties, however, cannot by agreement confer on this Court a power or jurisdiction that it does not otherwise have. Magistrate M Buscombe 18 May 2012 ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 June 2012