There has been a worrying trend of late. I have recently seen appeals under s. 222 of the Justices Act 1886 where the Respondent has been named variously as “Queensland Police Service”, “Commissioner of Police”, “Superintendent of Traffic” and now even “Cairns Traffic Police”! I suspect the last three are not even juridical entities.
Without pointing fingers, it is appropriate to consider just who the respondent really is in the usual traffic or criminal matter, because getting that right will make getting the right result in costs arguments just that little bit easier.
The Justices Act 1886
An old, but steady workhorse of the criminal and quasi-criminal judicial system, the Justices Act (“herein the JA”) is the controller of how a summary matter is commenced, proceeded with, determined and appealed.
Section 42(1) of the JA prescribes that a complaint in writing is required to commence a proceeding under the JA. That complaint must be made by the complainant himself (or herself), the complainant’s lawyer or a person authorised in that behalf. In Bowman v Brown [2004] QDC 006, the complaint was made by “Mervyn John Brown of Brisbane in the State of Queensland a ‘public officer’ as defined in the Justices Act 1886 as amended and being Team Leader … Community Services Division, Brisbane City Council …”. The complaint concluded: Whereupon the said Mervyn John Brown prays that I, the said Justice, will proceed in the premises according to law”. The form was signed by Mr Brown and the Justice. A ground of appeal alleged that the Magistrate did not have jurisdiction to proceed with the complaint because the complainant did not have standing to prosecute the charge. McGill SC DCJ held the complainant was in fact Mr Brown and he was therefore authorised by s. 42(1) JA to bring the complaint. There is no requirement for a complainant to be aggrieved or even interested in the substance of the complaint or even have any direct knowledge of the offence alleged (Whittaker v Turner (2004) 41 MVR 192; [2004] QCA 191 per McMurdo P). In any event, Barcaldine Shire Council v Spence [1944] St R Qd 18 was authority for the proposition that a local authority could bring the complaint in its own name if it wished. It is upon a complaint that a Justice may issue a summons (s. 53 of the JA).
Section 72 (the mainstay of our right to appear) provides that every complainant can appear by lawyer (s. 10.24 of the Police Service Administration Act 1990 allows any officer or service legal officer to appear in the Magistrates Court or Children’s Court to prosecute a charge even though that officer or service legal officer is not the complainant) and every defendant can defend the charge by the defendant’s counsel or solicitor.
Part 6 of the JA is concerned with summary trials (Proceedings in Case of Simple offences and Breaches of Duty). Throughout Part 6 reference is made to the complainant and defendant and their respective lawyers, counsel or solicitors. Section 145 of the JA requires the defendant to enter a plea to a charge. Section 146 of the JA sets out the process of trial and the order in which the case proceeds when a defendant enters a plea of not guilty (and s. 148 applies the practice of the Supreme Court for the examination, cross-examination and rights of address in reply etc). Section 149 and 150 of the JA deal with dismissal of a complaint and conviction.
Section 157 allows for the complainant to seek costs upon conviction. Section 158 allows a defendant to seek costs on dismissal of complaint. The power to make costs orders against police or public officers is controlled by s. 158A which allows for such order only where the justice is satisfied it is proper that the order for costs should be made. Section 158A(2) sets out some of the matters that a justice must have regard to in determining if an order for costs is proper (the list is not exhaustive) and a schedule of costs is set out in Schedule 2 of the Justice Regulations 2004 (though s. 158B(2) contemplates higher awards in some circumstances). In Latoudis v Casey (1990) 170 CLR 534 the High Court held (Brennan and Dawson JJ dissenting) that ordinarily a court of summary jurisdiction, in exercising a statutory discretion to award costs in criminal proceedings (is there any other?), will make an order for costs in favour of a successful defendant — there should not be a general rule that costs follow the event in such matters (per Mason CJ). This is not the article to consider the making of costs awards as such, but I would refer readers to decisions such as Besgrove v Larson [2001] QDC 144 (McGill SC DCJ); Turner v Randall; Ex parte Randall [1988] 1 Qd R 726 and MacPherson v Commissioner of Taxation [2000] 1 Qd R 496. In MacPherson v Commissioner for Taxation, McPherson JA said (at para [8]):
8 In making his determination as to costs, the magistrate applied s.158A of the Justices Act (the Queensland Act). That section was enacted shortly after the decision of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534, in which their Honours reviewed the principles governing the discretion to award costs in respect of unsuccessful proceedings for an offence that was conducted summarily. On the appeal before us, s.158A was, on both sides, accepted as being a direct and speedy legislative response by State Parliament to the decision of the majority of their Honours in that case. The object evidently was to replace the principles adopted in Latoudis v. Casey with a series of statutory provisions amounting to a virtual codification of the leading factors to be considered in deciding whether costs should be awarded against a police officer or a public officer whose complaint is dismissed by justices.
Perhaps His Honour was saying that the ‘ordinary’ order expected where the defendant is successful in summary proceedings as suggested in Latoudis v Casey should be also be the expected result when applying s. 158A(2) in the ordinary case?
Any award of costs must be specified in the Order of conviction or dismissal, costs to be assessed do not appear to be permissible (s. 159 of the JA).
222 Appeals
Part 9 deals with appeals from decisions of Justices and in particular, appeals from Magistrates to the District Court, the ubiquitous and very handy “222 appeal”.
Under s. 222(1), a person who feels aggrieved as a complainant, defendant, or otherwise by an order made by a justice in a summary way on a complaint (emphasises added), may appeal within 1 month to a District Court judge. There are limits set out in s. 222(2). The Appellant must file a Notice of Appeal (Form 27 — can presently be found on the Queensland Courts web page at http://www.courts.qld.gov.au/107.htm). The form requires the insertion of the names of the defendant and the complainant. It admits of no others! The form usefully instructs the person competing it to identify the Respondent as:
[Insert here the name of the person who is concerned in upholding the decision appealed. This person will be the complainant who is named in the original complaint where the defendant appealed.]
The Notice of Appeal must be filed in relevant district registry. Interestingly, once an appeal is filed, bail applications for persons who have been placed into custody may be made to either a District Court judge or to a Magistrates Court (s. 8(1)(a)(ia) Bail Act 1980).
After filing a Notice of Appeal, it is the duty of the clerk of the court to distribute the notice and give it to the Respondent (s. 222D of the JA). An appeal in the District Court is by way of rehearing (for an excellent expose on the meaning of this in various jurisdictions — see the decision of McGill SC DCJ in Wallace v Queensland Racing [2007] QDC 168 and in Marchetti v Williams [2008] QDC 75) and on appeal the judge can make procedural orders (s. 224) and on the hearing itself may confirm, set aside or vary the appealed order or make any other order the judge considers just (s. 225). The judge may remit the matter and give directions as to rehearing or reconsideration. And finally, the judge may order costs to be paid by either party as the judge thinks fit. Costs of an appeal are determined under s.232 and require if a costs order is made, that costs be paid to the registrar to be paid over to the party entitled to them and the time within which payment is to be made. Section 232A of the JA applies Schedule 2 of the Justices Regulations again (with modifications — see the Schedule for District Court costs), though higher costs may be awarded in prescribed circumstances (s. 232A(2) of the JA).
On costs then…
So, costs must be made in respect of the parties and the parties are the complainant and defendant. In police and local government maters, a quick check of the summons will indicate who the complainant is. In almost all cases it is a police officer or an officer of the local government authority. In the case where a defendant is successful it is the complainant against whom a costs order should be made against if it is proper to do so, because they are the party to the proceedings not their employer. In all cases, a party must be a juridical entity, ie one that can sue or be sued. Costs are by way of compensation in the sense of an indemnity for the costs incurred in proceedings (Latoudis v Casey). In the case of summary dismissals, costs may be awarded against the complainant. If it is the police officer or public officer then the defendant is entitled to a certificate from the clerk of the court showing the amount of costs awarded (s. 158A(3)). The defendant is entitled to payment of the amount shown in the certificate within 2 months after payment is claimed from the State. On appeal, if the costs are not paid as required, a certificate may be issued and the aggrieved party may then enforce the award similarly to enforcement of an award of costs by justices.
It seems that by replacing the complainant with another entity, the normal process for awarding costs will be unbalanced. For example, it is unlikely that a defendant could be exposed to costs on an unsuccessful appeal because what costs have the complainant police officer or public officer incurred? Their costs are usually met by the State, and so the complainant has incurred no costs for which they cam claim. On the other hand, the Queensland Police Service may incur costs because of the use of Crown Law or the DPP who may charge on a commercial basis for their services. This would expose the defendant to costs, but it is submitted improperly because the wrong respondent would be seeking the costs.
Summary
As they always say — follow the words of the statute and you can’t go wrong!
Darin W Honchin
Northern Circuit Chambers
Townsville
