Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 (20 December 1990)

HIGH COURT OF AUSTRALIA

LATOUDIS v. CASEY [1990] HCA 59; (1990) 170 CLR 534

F.C. 90/054

Costs

High Court of Australia

Mason C.J.(1), Brennan(2), Dawson(3), Toohey(4) and McHugh(5) JJ.

CATCHWORDS

Costs - Magistrates' courts - Information - Dismissal - Discretion to award costs to defendant - Relevant considerations - Magistrates (Summary Proceedings) Act 1975 (Vict.), s.97(b).

HEARING

1990, May 29; December 20. 20:12:1990

APPEAL from the Supreme Court of Victoria.

DECISION

MASON C.J. The question for decision in this appeal is what, if any, are the criteria to be applied by a court of summary jurisdiction in exercising a statutory discretion to award costs in criminal proceedings which have terminated in favour of a defendant. At the time of these proceedings, the relevant discretion was conferred by s.97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vict.) ("the Act") which is in terms similar to counterpart provisions in New South Wales, Victoria, Queensland, South Australia, the Australian Capital Territory and the Northern Territory. Section 97(b) authorizes the court, when it dismisses an information or complaint, or makes an order in favour of a defendant, to order the informant or complainant to pay to the defendant such costs as the court thinks just and reasonable. Separate provision is made by s.97(a) in similar terms authorizing the award of costs in favour of an informant or complainant when the defendant is convicted or an order is made against the defendant. The fact that separate provision was made for the two situations may well indicate a legislative appreciation that the exercise of each discretion may call for an examination of different considerations.

2. The old rule was that the Crown neither receives nor pays costs (Attorney-General of Queensland v. Holland [1912] HCA 26; (1912) 15 CLR 46, at p 49; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90, at p 92), notably in criminal proceedings. That rule has been displaced. Indeed, it could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings.

3. It emerges from the comprehensive review of the cases made by Dawson J. in his reasons for judgment that the Australian authorities now provide support for two distinct approaches to the exercise of the statutory discretion. Initially in New South Wales, the Full Court of the Supreme Court adopted the rule in summary police prosecutions that costs ought generally not to be awarded to the successful defendant: see Ex parte Jones (1906) 6 SR (N.S.W.) 313. It would seem that this rule applied to other summary prosecutions commenced by public officers in the public interest. In Ex parte Jones, Darley C.J. based the rule largely on the proposition that it was the duty of the police, once they saw that a prima facie case existed, to bring it before the court, rather than to make careful inquiry into the circumstances with a view to determining whether the defendant was guilty or not. His Honour observed, at p 316:

"(I)f the police find that they run the risk of being

ordered to pay costs, they may hesitate to bring cases

before the Court".

4. Subsequently, it was recognized that, in modern times, a police officer is generally indemnified against an adverse order for costs so that an order for costs against such an officer is not a significant deterrent to the performance of his or her public duty: Ex parte Hivis, at p 92. In that case it was held that the discretion to award the costs of proceedings for prohibition against a police officer was unfettered and that its exercise must depend on the particular circumstances of the case. More recently, a similar approach was adopted in Barton v. Berman (1980) 1 NSWLR 63 where the New South Wales Court of Appeal, in considering whether a successful defendant in committal proceedings should get his costs, held that the possibility of deterring the police from bringing proceedings is an irrelevant consideration. Hope J.A. (with whom Glass J.A. agreed) said, at p 74:

"But the question which the magistrate has to decide is

whether to make or not to make an order for costs; it is not

simply whether, for some reason, he should decline to make

an order. The fact that the defendant has been discharged

gives the Court jurisdiction. That the defendant has

qualified to make the application is, of course, a relevant

circumstance, but it does not give rise to any presumption

that he should get an order."

These remarks reflect the current approach in New South Wales (see Acuthan v. Coates (1986) 6 NSWLR 472, at pp 479-480) and it is indicative of the first of the two distinct approaches which have been taken to the question now under consideration.

5. As recently as 1985, in Lewis v. Utting (1985) 1 Qd R 423, the Full Court of the Supreme Court of Queensland adopted the same approach, subject to the qualification that it held that the fact that the police officer is exercising a public duty in bringing the prosecution is a consideration relevant to the exercise of the discretion: see at p 442. Carter J. (with whom Campbell C.J. and Matthews J. agreed generally) rejected the notion that matters relevant to the exercise of the discretion should be identified on the ground that to do so might fetter what was an unfettered discretion. His Honour continued (at p 442):

"It seems to me with great respect to those who express

it that a rule which states that the discretion is to be

exercised in the same way as in a civil case or that an

unsuccessful defendant shall have his costs unless he

has disqualified himself by particular conduct will as

effectively fetter the discretion as will any attempt to

list the relevant criteria. That is not to say that the

fact that the proceedings are of a criminal nature and that

they are instituted by a police officer in the execution of

his duty is the decisive consideration."

6. The unfettered nature of the discretion had been emphasized in the earlier Victorian decision of Puddy v. Borg [1973] VicRp 61; (1973) VR 626. That case decided that there is no prima facie rule one way or the other and that the discretion is to be exercised in each case according to its own circumstances, this being the principle which now prevails in Victoria. The judgment of Winneke C.J., Smith and Menhennitt JJ. states the position in these terms (at p 628):

"The discretion is one to be exercised in each case

according to its own circumstances. Beyond limiting

the power to such costs as to the court seems just and

reasonable, the sub-section does not otherwise circumscribe

the discretion conferred. No doubt it must be exercised

judicially so as to achieve what is fair and just between

the parties according to the circumstances of the particular

case, and its exercise is open to challenge according to

the well-established rules which govern the exercise of

discretionary powers."

7. In treating the discretion to award costs as relevantly unconfined, the Full Court of the Supreme Court of Victoria took a course which was followed in New South Wales and Queensland. In the present case, Kaye J. quoted this statement and cited it as a reason for refusing to adopt the second approach, to which I shall now refer, on the ground that it would confine the broad discretion which the legislature intended to confer on the courts.

8. The second approach, which is currently followed in South Australia, the Australian Capital Territory and the Northern Territory, is that costs ought generally to be awarded to a successful defendant. In Hamdorf v. Riddle (1971) SASR 398, Bray C.J., Hogarth J. and Sangster AJ. held (at p 402) that, in awarding costs in summary proceedings which terminated in favour of a defendant, courts should, "in a general way", exercise their discretion as they do in civil cases. Their Honours rejected the then established practice in South Australia as erroneous. According to that practice, costs were awarded against unsuccessful defendants virtually as a matter of course, though costs were awarded against unsuccessful police prosecutors only in unusual cases. In McEwen v. Siely (1972) 21 FLR 131, the Supreme Court of the Australian Capital Territory (Fox, Blackburn and Connor JJ.) agreed in substance with what was said in Hamdorf v. Riddle, but preferred to express the principle in this way (at p 136):

"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".

And in Cilli v. Abbott [1981] FCA 70; (1981) 53 FLR 108, the Federal Court (Keely, Toohey and Fisher JJ.), on appeal from an order of the Supreme Court of the Northern Territory dismissing an appeal from the refusal of a magistrate to award costs in favour of a successful defendant, followed McEwen v. Siely.

9. It remains for me to refer to the position in Tasmania where a relevant statutory provision, s.4 of the Costs in Criminal Cases Act 1976 (Tas.), prescribes a number of relevant considerations, though they are not expressed to be exhaustive. It has been held that the statute does not abrogate the principles (a) that criminal trials are not to be equated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs: see Reg. v. Freshney (1977) Tas SR 126. In that case, Cosgrove J. said, at p 128:

"There must be some circumstance, other than acquittal

which, whether or not it be based on error, inefficiency,

or irregularity, gives the applicant a just claim on the

community for payment of his costs."

See also Bradley v. Lawson (1978) Tas SR 213. However, the rule that has been applied in Tasmania is the product of judicial interpretation of a Tasmanian statute which prescribes relevant factors to be taken into account. For that reason I do not regard the Tasmanian approach as an authoritative or influential guide to the manner in which a general discretion, unconfined except by reference to its subject-matter and the scope and purpose of the statute, should be exercised.

10. In referring to the approaches that have been taken in various States and Territories to the award of costs to a successful defendant, I have not taken the trouble to set out the relevant statutory provisions. That is because, with the exception of Tasmania, the courts have been given a general statutory discretion which has not been constrained, even by prescription of relevant considerations or criteria. Thus, as in Puddy v. Borg, the courts have been correct to emphasize the unconfined nature of the discretion. But it does not follow that any attempt to formulate a principle or a guideline according to which the discretion should be exercised would constitute a fetter upon the discretion not intended by the legislature. Indeed, a refusal to formulate a principle or guideline can only lead to exercises of discretion which are seen to be inconsistent, a result which would not have been contemplated by the legislature with any degree of equanimity. I venture to repeat the comments made by Deane J. and myself in Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, at p 519:

"The point of preserving the width of the discretion

which Parliament has created is that it maximizes the

possibility of doing justice in every case. But the need

for consistency in judicial adjudication, which is the

antithesis of arbitrary and capricious decision-making,

provides an important countervailing consideration

supporting the giving of guidance by appellate courts,

whether in the form of principles or guidelines."

11. By conferring on courts of summary jurisdiction a power to award costs when proceedings terminate in favour of the defendant, the legislature must be taken to have intended to abrogate the traditional rule that costs are not awarded against the Crown. Yet in Victoria and Queensland, the emphasis given by the courts to the unfettered nature of the discretion to award or withhold costs has resulted in practice in costs not being generally awarded against a police officer who is an informant, a result which could scarcely have been intended by the legislature when it enacted s.97(b) of the Act. Once that proposition is accepted, as in my view it must be, there is no sound basis for drawing a distinction in relation to the award of costs against an unsuccessful informant between summary proceedings instituted by a police or other public officer and those instituted by a private citizen. In the case of proceedings commenced by a private prosecutor which terminate in favour of the defendant, the private prosecutor should in ordinary circumstances be ordered to pay the costs, even if he or she initiates the proceedings for a public rather than a private purpose.

12. 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. To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs or to make a qualified order for costs. As the Report of Committee on Costs in Criminal Cases (N.Z.), (1966), par.30, stated:

"Because we cannot wholly prevent placing innocent persons

in jeopardy that does not mean that we should not as far as

is practicable mitigate the consequences."

13. It will be seen from what I have already said that, in exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle. If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings: Cilli v. Abbott, at p 111. Most of the arguments which seek to counter an award of costs against an informant fail to recognize this principle and treat an order for costs against an informant as if it amounted to the imposition of a penalty or punishment. But these arguments only have force if costs are awarded by reason of misconduct or default on the part of the prosecutor. Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.

14. The argument that police and other public officers charged with the enforcement of the criminal laws will be discouraged by the apprehension of adverse orders for costs from prosecuting cases which should be brought is without substance and is no longer accepted by the courts: see Ex parte Hivis; Hamdorf v. Riddle; Puddy v. Borg; Barton v. Berman. The courts have rightly recognized that the Executive's practice of indemnifying police officers against payment of costs ordered against them undermines the argument which found favour so long ago in Ex parte Jones.

15. The availability of legal aid might be regarded as a possible reason for refusing to award costs. But no court can assume that a particular defendant is entitled to, or is in receipt of, legal aid and it would not be right to draw a distinction between defendants based on receipt of legal aid. In any event the courts have traditionally made orders for costs without regard to considerations of that kind.

16. I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. As I have noted, the making of separate provision in s.97(a) and (b) is not without significance. The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation. These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings.

17. Nevertheless, I am persuaded that, in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor or to order payment of all the defendant's costs. If, for example, 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.

18. I agree with Toohey J. that, 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.

19. However, I have come to the conclusion that the magistrate's exercise of discretion in the present case was flawed. In focussing on the reasonableness of the informant's conduct in instituting the proceedings, the magistrate erred in principle. In relying upon the defendant's failure to seek proof of identity of the owner or proof of ownership of the goods, thereby causing suspicion to fall upon him, the magistrate again took into account matters going to the reasonableness of the informant's action in instituting the proceedings. It would have been different had the magistrate relied upon conduct of the defendant in the course of the police investigation of the case. But that was not so. The magistrate based his decision in this respect solely on the defendant's participation in the transaction which gave rise to the offence alleged. For the reasons given by McHugh J., the magistrate erred as well in this respect and the appeal should be allowed.

20. I agree with the orders proposed by McHugh J.

BRENNAN J. I agree with Dawson J. that the appeal should be dismissed. It is unnecessary to reiterate his Honour's reasons with which I am in agreement but, having regard to the practical importance of this case, I would add an observation upon one factor which, it seems to me, carries some weight. A police officer who, in the ordinary course of his duties, commences a prosecution against a defendant is serving the public interest, not his own. Yet he is the defendant's adversary in the prosecution and an order for payment of the defendant's costs must be made against him personally, or not at all. If the court's practice is generally to refuse a successful defendant his costs, it is the defendant whose purse defrays the costs of the proceedings taken in the public interest; if the court's practice is generally to allow a successful defendant his costs, it is the police officer whose purse defrays the costs incurred by him in the public interest. The injustice is manifest: whichever practice is adopted, the public interest is served but the public purse is not made to bear the burden of the service; the burden is made to rest either on the police officer or on the acquitted defendant. True it is that, if costs are ordered against a police officer, an ex gratia payment may be made by the Treasury by way of indemnity but the discretion of the Treasury cannot properly be taken into account in deciding whether an order for costs should be made. The injustice inherent in the system can be avoided only by legislation which commits public funds to defray the costs of unsuccessful prosecutions. If governments decline to make the necessary funds available, the courts are left with the unenviable task of deciding whether the interests of justice are better served by adopting one unjust practice rather than another. The question is nicely balanced. The long-standing practice which attracts the support of Dawson J. seems to me to give better assurance of the due administration of the law, the submission of appropriate cases to the courts for determination, and the speedy disposition of summary proceedings. That practice seems to me to serve better the interests of justice. I would dismiss the appeal.

DAWSON J. Three informations against the appellant were dismissed in the Magistrates' Court at Oakleigh in Victoria. The appellant applied for, but was refused, an order for costs against the informant. The appellant obtained an order nisi to review the magistrate's refusal to order costs. Kaye J. discharged the order nisi and the appellant now appeals by special leave against his decision.

2. Upon the first information the appellant was charged with the theft of a red Ford GT sedan. Upon the second information the appellant was charged with receiving stolen goods in the form of two black front car seats, one black rear seat, four black door trims, four interior door handles and two window winders. Upon the third information the appellant was charged with unlawful possession of the same goods. The first two informations were for indictable offences and the appellant elected to have them dealt with summarily. He pleaded not guilty to all three charges.

3. The police prosecutor led no evidence upon the charge of theft and that information was forthwith dismissed by the magistrate. On the hearing of the other two charges, the prosecution called as a witness the owner of the red Ford GT sedan. He gave evidence that his vehicle had been stolen and subsequently found in a stripped condition. He later identified at the Oakleigh Police Station certain seats and door trim as having been taken from his car. The prosecution called as its other witness the police informant who said that she had visited the appellant's home where she observed a yellow Ford GT sedan with a black interior. She said that some of the items in the interior of the car appeared to match the items which the owner of the red Ford GT sedan had reported stolen from his car. She said that she formed the suspicion that the items in the appellant's car were stolen. Later those items were removed from the appellant's car and taken to the Oakleigh Police Station. The witness said that she conducted an interview with the appellant. A typed record of that interview was tendered in evidence.

4. In the recorded answers, the appellant said that he bought the car seats and door trim found in his car from a man he "met" on the C.B. radio named "Peter". He said that he paid a reasonable price for them. He said that he did not know that the articles were stolen.

5. The solicitor appearing for the appellant before the magistrate submitted that the appellant had no case to answer upon the two remaining charges. The magistrate upheld that submission upon the charge of receiving and dismissed that information. He held that the appellant should give an account of his possession of the articles in question on the charge of unlawful possession.

6. The appellant gave evidence in accordance with his record of interview that he bought the car seats and door trim from a man with the call-sign of "Peter" who had been in contact with him on the C.B. radio. The appellant said that he paid $350 for the articles, which he considered to be a fair price. He said that he did not suspect the articles to have been stolen.

7. The magistrate found that the appellant had successfully accounted for his possession of the goods and dismissed the remaining information. In refusing the appellant's application for an order for costs, the magistrate said that the informant had acted reasonably and that the appellant had caused a significant suspicion to fall upon him by failing to seek proof of ownership of the goods at the time he purchased them, notwithstanding that his account of his possession was accepted by the court as satisfactory.

8. In discharging the order nisi, Kaye J. relied upon the decision of the Victorian Supreme Court (Winneke C.J., Smith and Menhennitt JJ.) in Puddy v. Borg [1973] VicRp 61; (1973) VR 626. In that case, the defendant had unsuccessfully applied for an order for costs against the informant upon the dismissal of an information for a summary offence. The magistrate in refusing the application said that to award costs might act as a deterrent to police in laying informations in courts of summary jurisdiction.

9. The Full Court pointed to the unfettered discretion vested in a magistrates' court (at that time by s.105 of the Justices Act 1958 (Vict.)) to order an informant, upon the dismissal of an information, to pay to the defendant such costs as to the court seemed just and reasonable. The Court said, at p 629:

"the consideration actuating the magistrate's refusal to

award costs was a policy reason of a general nature which

would be applicable to all cases in which the information

was laid by a police officer, and which if so applied would

inhibit, except in most exceptional circumstances, the

exercise in such cases of the general discretion conferred

by the section.

In our opinion, the consideration which actuated the

magistrate in refusing to order costs against the informant

was, for the reasons we have given, a consideration

extraneous or irrelevant to the proper exercise of the

discretion under the section, and he was, we think, in error

in allowing the exercise of his discretion to be influenced

by it."

10. The power of a magistrates' court to award costs was at the time relevant to these proceedings to be found in s.97(a) and (b) of the Magistrates (Summary Proceedings) Act 1975 (Vict.) (see now s.131 of the Magistrates' Court Act 1989 (Vict.) to a similar effect) which is as follows:

"(a) Where the Court makes a conviction or order in favour

of an informant or complainant, the Court may order

the defendant to pay to the informant or complainant

such costs as the Court thinks just and reasonable;

(b) Where the Court dismisses the information or

complaint, or makes an order in favour of the

defendant the Court may order the informant or the

complainant to pay to the defendant such costs as the

Court thinks just and reasonable".

That provision is not significantly different from s.105 of the Justices Act, which was the applicable section in Puddy v. Borg.

11. In the present case Kaye J. was asked to follow decisions of the Supreme Court of South Australia and of the Federal Court holding that, as a general rule, costs follow the event in proceedings involving summary offences as in civil proceedings. He declined to do so upon the basis that the discretion conferred by the legislation ought not be so confined. He referred to a passage in the judgment in Puddy v. Borg, at p 628, where it was said:

"The discretion is one to be exercised in each case

according to its own circumstances. Beyond limiting the

power to such costs as to the court seems just and

reasonable, the sub-section does not otherwise circumscribe

the discretion conferred. No doubt it must be exercised

judicially so as to achieve what is fair and just between

the parties according to the circumstances of the particular

case, and its exercise is open to challenge according to

the well-established rules which govern the exercise of

discretionary powers."

12. The approach adopted towards awarding costs to successful defendants in proceedings involving summary offences is not uniform throughout Australia. In Hamdorf v. Riddle (1971) SASR 398, the Supreme Court of South Australia (Bray C.J., Hogarth J. and Sangster AJ.) held that, in determining whether costs should be awarded to a successful defendant in a prosecution for a summary offence, courts should exercise their discretion in the same manner as in civil actions. The provision in the Justices Act 1921 (S.A.) (s.77) giving courts of summary jurisdiction power to award costs in South Australia is not dissimilar to the Victorian provision to which I have referred. The Court observed (at pp 399-400) that a practice had grown up whereby costs were awarded against unsuccessful defendants almost as a matter of course, while costs were ordered against police complainants only in unusual circumstances, for example, where they acted unreasonably in laying or proceeding with the complaint. The Court thought the practice to be wrong in principle and said, at p 402:

"We think then, without attempting to fetter the discretion

of courts of summary jurisdiction, that they should, in a

general way, exercise their discretion as to costs in the

way in which it is exercised in the trial of a civil action,

but without discriminating between the costs of successful

complainants and successful defendants at least to any

greater extent than the civil courts distinguish between the

costs of successful plaintiffs and successful defendants.

In those courts, indeed, a successful defendant is less

often deprived of his costs than a successful plaintiff

because he did not initiate the proceedings and was brought

to the court irrespective of his will, and in most cases

against it."

13. In McEwen v. Siely (1972) 21 FLR 131 the Supreme Court of the Australian Capital Territory (Fox, Blackburn and Connor JJ.) thought that the passage which I have cited from Hamdorf v. Riddle may have been too loosely expressed. Nevertheless they agreed with the thrust of that decision, saying of a provision comparable to that in South Australia (Court of Petty Sessions Ordinance 1930 (A.C.T.), s.244(1)), at p 136:

"we think 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."

14. In Cilli v. Abbott [1981] FCA 70; (1981) 53 FLR 108, the Federal Court (Keely, Toohey and Fisher JJ.), sitting on appeal from a decision of the Supreme Court of the Northern Territory dismissing an appeal from the refusal of a magistrate to order costs in favour of a successful defendant, followed the decision in McEwen v. Siely, although it should be noted that counsel for the respondent did not contest the statement of principle in the latter case.

15. The decision in Puddy v. Borg, whilst it does not go as far in favour of a defendant as does Hamdorf v. Riddle, rejects the view that costs should not be awarded against an informant, at all events a police informant, unless he acted vindictively or unreasonably in laying or pursuing the information. The view rejected in Puddy v. Borg is reflected in the comment of Darley C.J. in Ex parte Jones (1906) 6 SR (NSW) 313, at pp 315-316:

"it is said that the police should make careful enquiry into

the circumstances before instituting proceedings. I think

it would be dangerous to the public welfare if we laid upon

the police any such duty, and held that they were bound to

make enquiries before commencing a prosecution. In making

such enquiries they might easily be deceived. The proper

course for the police to pursue, is, if they see that a

prim facie case exists, to bring it before the Court which

has jurisdiction to decide it. It is the duty of the

magistrate to decide the case upon the evidence, and not

of the police to determine whether the accused is guilty or

not. In some countries the police have this duty charged

upon them of making enquiries, and exercising quasi judicial

functions, but that is not our system. Our system is that

if there is apparently good ground to suspect that an

offence has been committed, it is the duty of the police to

lay a complaint and bring the accused before the magistrate.

I have no doubt that the inspector in the present case did

his duty in preferring the charge, and if the police find

that they run the risk of being ordered to pay costs, they

may hesitate to bring cases before the Court."

16. That view was also rejected by Mann J. in Victoria in Anstee v. Jennings [1935] VicLawRp 27; (1935) VLR 144, at p 148. In New South Wales in Ex parte Hivis; Re Michaelis (1933) 50 WN (N.S.W.) 90, Halse Rogers J. expressed the opinion, at p 92, that:

"The old rule that the Crown neither receives nor pays costs

has been displaced and costs of prohibition proceedings are

in the discretion of the Court or Judge. That discretion is

unfettered and the grant or refusal of costs must depend on

the circumstances of the particular case. It is sometimes

urged that an order for costs against a police officer

would discourage the police from doing their duty in

bringing offenders before the Courts. But in these days

the liability of the police officer can scarcely be

regarded as personal and I think the proper view is

expressed by Wright, J., in Rex v. Archbishop of Canterbury

((1902) 2 KB at p 572). He said: ' ... as incidental to

departmental administration, there must often be litigation

which does not affect any prerogative of the Crown, and as

to which no good reason can be assigned for the denial of

costs to the successful party, and the case of Moore v.

Smith (1 El and El 597 [1859] EngR 276; (120 ER 1034)) supports this view.'

Cases often occur in which prohibition goes on some merely

technical ground and speaking for myself I should be

disinclined to allow costs in such a case. But in my

opinion the present is one of the cases in which 'no good

reason can be assigned for the denial of costs to the

successful party.'"

And in Ex parte Justelius; Re Lucas (1970) 2 NSWR 610, at p 611; (1970) 92 WN (N.S.W.) 455, at p 456, Jacobs J.A., with whom Holmes and Manning J.J.A. agreed, said:

"The Court, of course, has a jurisdiction to award costs.

It is also true that in the past the Court has on many

occasions seen fit not to award costs where the unsuccessful

party before it is an officer under the Crown, provided that

he has proceeded bona fide and reasonably. ... I am not

sure that past practice has ever been quite consistent on

the subject, and I am not sure that modern times require the

same principles to be applied, particularly when account is

taken of legislation of recent times which allows costs of

criminal matters to be obtained, in proper circumstances, by

an accused person who is found innocent."

These cases were considered by the New South Wales Court of Appeal in Barton v. Berman (1980) 1 NSWLR 63 in relation to committal proceedings when a submission was made, in reliance on Hamdorf v. Riddle, that a successful defendant should normally be awarded costs against the informant or that a successful defendant should get his costs unless there are special circumstances. Hope J.A., with whom Glass J.A. agreed, accepted the view expressed in Puddy v. Borg that the possibility of deterring the police from bringing proceedings is an irrelevant or extraneous consideration in determining whether an order for costs should be made against an informant. He continued, at p 74:

"But the question which the magistrate has to decide is

whether to make or not to make an order for costs; it is not

simply whether, for some reason, he should decline to make

an order. The fact that the defendant has been discharged

gives the Court jurisdiction. That the defendant has

qualified to make the application is, of course, a relevant

circumstance, but it does not give rise to any presumption

that he should get an order. Nor do I think that the proper

approach, or the relevant considerations, would be the same

in respect of applications under s 41A (of the Justices Act

1902 (N.S.W.)) as apply in civil cases."

See also Acuthan v. Coates (1986) 6 NSWLR 472, at pp 479-480.

17. The statutory provision in Queensland relating to costs in summary proceedings is comparable to those found in the Justices Acts of the other States: see Justices Act 1886 (Q.), s.158. However, in Queensland in Lewis v. Utting (1985) 1 Qd R 423, Carter J., with whom Campbell C.J. and Matthews J. agreed generally, appears to embrace the view expressed by Darley C.J. in Ex parte Jones. He rejected the view that the possibility that an award of costs might operate as a deterrent to police informants is a decisive consideration in determining whether to order costs against an informant, but he thought that "the fact that the proceedings before justices are instituted by a police officer in the course of performing a public duty and that as a matter of obligation alleged breaches of the peace or of a statute are brought by him before a court is not an irrelevant or extraneous consideration in determining whether costs ought to be awarded against him if the prosecution fails" (at p 444). Moreover, after pointing to several decisions in Victoria (Liu v. Caughey, unreported, Supreme Court of Victoria, 18 December 1979; Heddich v. Dike (1981) 3 A Crim R 139) which suggest that, notwithstanding the decision in Puddy v. Borg, the practice in that State is not to award costs against a police informant save in special circumstances, Carter J. observed (at p 441) that, at least until recently, the practice in Queensland, "both long-standing and well established", was the same. He went on, at pp 442-443, to reject the approach adopted in Hamdorf v. Riddle, saying that costs in summary proceedings were a matter within the discretion of the magistrate. He continued:

"Any attempt to list precisely the matters which will be

relevant to the proper exercise of the discretion is likely

to be counterproductive since there is a real risk that such

a list might be seen to be comprehensive and exhaustive and

therefore may in fact convert what is in truth an unfettered

discretion into a fettered one. It seems to me with great

respect to those who express it that a rule which states

that the discretion is to be exercised in the same way as

in a civil case or that an unsuccessful defendant shall have

his costs unless he has disqualified himself by particular

conduct will as effectively fetter the discretion as will

any attempt to list the relevant criteria. That is not to

say that the fact that the proceedings are of a criminal

nature and that they are instituted by a police officer in

the execution of his duty is the decisive consideration.

The content of the so called rule of practice has to be

considered in the proper context along with the other

considerations which emerge from the circumstances of the

particular case. I need hardly add that the question

whether the successful complainant should have his costs is

similarly a matter for the discretion of the magistrate."

18. The reference by Jacobs J.A. in Ex parte Justelius; Re Lucas to recent legislation which allows costs to be recovered, in proper circumstances, by a person acquitted of a crime is, it would seem, a reference to the Costs in Criminal Cases Act 1967 (N.S.W.). That Act, which applies in relation to both indictable offences and offences punishable summarily, provides that, where a defendant after a hearing on the merits is acquitted or discharged as to an information, the court may grant a certificate. The certificate is to state that, in the opinion of the court, if the prosecution had, before the proceedings were instituted, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings and that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. The certificate may also specify an amount for costs. A person to whom a certificate has been granted may make application to the Under Secretary of the Department of the Attorney General and of Justice who may furnish a statement to the Treasurer specifying the appropriate amount of costs, either the amount specified in the certificate or, where no amount has been so specified, the amount which the Under Secretary believes would have been reasonably incurred. After receiving the statement, the Treasurer may, if he considers a payment is justified, pay the applicant his costs or such part thereof as he may determine.

19. In Tasmania, s.77 of the Justices Act 1959 (Tas.) confers a discretion upon a court to award costs in summary proceedings in favour of a complainant or defendant. The provision is in familiar form but it is expressed in sub-s.(8) not to prejudice the operation of the Costs in Criminal Cases Act 1976 (Tas.). The latter Act provides in s.4 that, where a defendant is discharged from proceedings in respect of an offence, including discharge by acquittal, the court may order that he be paid in respect of his defence such costs as it thinks just and reasonable. The section continues:

"(2) The court, in deciding whether to grant costs and

the amount of any costs granted, shall have regard to all

relevant circumstances and in particular to the following:

(a) Whether the proceedings were brought and continued

in good faith;

(b) Whether proper steps were taken to investigate any

matter coming to, or within, the knowledge of any

person responsible for bringing or continuing the

proceedings;

(c) Whether the investigation into the offence was

conducted in a reasonable and proper manner;

(d) Whether the evidence as a whole would support a

finding of guilt but the defendant is discharged

from the proceedings on a technical point;

(e) Whether the defendant is discharged from the

proceedings because he established (either by the

evidence of witnesses called by him or by cross

examination of witnesses for the prosecution or

otherwise) that he was not guilty.

(3) No defendant shall be granted costs by reason

only of the fact that he is acquitted of an offence, the

complaint charging him with an offence is dismissed or

withdrawn, or he is discharged upon an indictment.

(4) No defendant shall be refused costs by reason only

of the fact that the proceedings were properly brought and

continued.

(5) No defendant shall be refused costs by reason only

of the fact that in the investigation of the offence with

which he had been charged he remained silent or refused to

assist in respect thereof."

20. In Reg. v. Freshney (1977) Tas SR 126 Cosgrove J. held that the discretion conferred by the section was an unfettered discretion and that none of the considerations in sub-s.(2) was conclusive. He observed, at p 128, that the statute did not "in terms refute or abrogate the long-standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants, and (b) that acquitted persons are not entitled to costs". He concluded that:

"There must be some circumstance, other than acquittal

which, whether or not it be based on error, inefficiency,

or irregularity, gives the applicant a just claim on the

community for payment of his costs. This interpretation

seems to me to be not inconsistent with the construction

placed upon a similar statute by Chilwell J. of the Supreme

Court of New Zealand in Reg. v. A.B. ((1974) 2 NZLR 425)."

In Bradley v. Lawson (1978) Tas SR 213, Green C.J. expressed his agreement with the conclusion reached by Cosgrove J.

21. In Western Australia, ss.151 and 152 of the Justices Act 1902 (W.A.) provide for costs in summary proceedings to be awarded, in the discretion of the court, in favour of the complainant or the defendant. In addition, the Official Prosecutions (Defendants' Costs) Act 1973 (W.A.) provides that a successful defendant in summary proceedings who is charged with an offence in an official prosecution is, subject to the Act, entitled to his costs: s.5. An official prosecution includes proceedings by way of complaint by a public official and the term "public official" includes a member of the police force: s.4. Where costs are awarded under the Act and the public official is one of a number of specified officials, including a police complainant, they are payable out of consolidated revenue: s.9. An order that a defendant is entitled to his costs is not made against a police complainant. The court may order that a successful defendant is not entitled to his costs if the charge is disposed of under certain specified statutory provisions or if he has unreasonably contributed to the institution or the continuation of the proceedings or has behaved in a way calculated to prolong the proceedings unnecessarily or to cause unnecessary expense: s.6.

22. In England, there has for many years been statutory provision for the payment of costs in criminal cases: see, e.g., Costs in Criminal Cases Act 1908. The current legislation, which contains the principal statutory provisions governing costs in criminal proceedings, is Pt II of the Prosecution of Offences Act 1985 (U.K.). Whilst previously there had been provision for a court, upon the summary dismissal of an information, to order the prosecution to pay costs to the accused (see Costs in Criminal Cases Act 1973 (U.K.), s.2), there had been no power to order that costs be paid to the accused out of central funds, that is, money provided by Parliament, as there was where an accused was acquitted after trial upon indictment or where an indictable offence was dealt with summarily and dismissed. Now, under s.16(1) of the Prosecution of Offences Act, costs awarded in favour of an accused upon the summary dismissal of an information are to be paid out of central funds. Under s.19 the Lord Chancellor may by regulation make provision empowering magistrates' courts and other courts, in any case where the court is satisfied that one party to criminal proceedings has incurred costs as a result of an unnecessary or improper act or omission by another party to the proceedings, to make an order as to the payment of those costs. Such a regulation is contained in Costs in Criminal Cases (General) Regulations 1986 (U.K.), reg.3. As with earlier legislation, s.16(1) of the Prosecution of Offences Act says nothing about the manner in which the discretion which it confers should be exercised. From time to time, practice directions have been issued. One such direction was that issued by the Court of Criminal Appeal in 1959, (1959) 1 WLR 1090; (1959) 3 All ER 471, in relation to the then current legislation, the Costs in Criminal Cases Act 1952 (U.K.). In speaking on behalf of the Court, Lord Parker C.J. said:

"The court's attention has been drawn to the difficult

question as to the lines on which the discretion to award

costs to an acquitted person should be exercised. ... The

discretion is in terms completely unfettered, and there is

no presumption one way or the other as to the manner of its

exercise.

In a statement issued on March 24, 1952 ((1952) 1 TLR

1131; 36 CrAppR 13), this court, while emphasising that

every case should be considered on its merits, said that it

was only in exceptional cases that costs should be awarded.

... While no attempt was there made to catalogue the

exceptional cases in which costs might be awarded, such

illustrations as were given were cases where the prosecution

could be said to be in some way at fault. On the other

hand, a suggestion has been canvassed that the mere fact of

an acquittal should carry with it the expectation that the

discretion would be exercised in favour of the acquitted

person.

Were either of these views correct, the effect would

be to impose a fetter upon the exercise of the absolute

discretion conferred by the statute. As we have said, there

is no presumption one way or the other as to its exercise.

Each case must be considered on its own facts as a whole,

and costs may and should be awarded in all cases where the

court thinks it right to do so."

23. Shortly thereafter in Reg. v. Sansbury (1959) 1 WLR 1091, at p 1092; (1959) 3 All ER 472, at p 472, Devlin J. said:

"The recent pronouncement by Lord Parker C.J. in the

Court of Criminal Appeal on this subject has not, I think,

laid down any new law, but it has perhaps made it clear that

the judge's discretion to award costs is rather wider than

has hitherto been thought; and, in particular, I think it

has now been made quite clear that the notion, which was

very generally entertained, that an award of costs against

the prosecution necessarily involved some reflection on the

conduct of the prosecution or on the propriety of its being

brought is quite wrong."

But in Berry v. British Transport Commission (1962) 1 QB 306, Devlin L.J. said, at p 327:

"A plaintiff brings an action for his own ends and to

benefit himself; it is therefore just that if he loses he

should pay the costs. A prosecutor brings proceedings

in the public interest, and so should be treated more

tenderly."

24. Perhaps not surprisingly, it seems that courts in England, including magistrates' courts, continued to be somewhat sparing in making orders for costs in favour of successful defendants. In a subsequent practice note, Practice Note (Justices: Defendant's Costs) (1982) 1 WLR 1447; (1982) 3 All ER 1152, the Court of Appeal said that further guidance was needed. Although the guidance was primarily in relation to the dismissal of an indictable offence dealt with summarily, it was expressed in terms which were generally applicable to magistrates' courts. The court emphasized the unfettered discretion conferred, but said that it should be accepted as normal practice that an order for costs should be made in favour of a successful defendant unless there were positive reasons for making a different order. Three specific instances which may provide a positive reason were cited: where the defendant's own conduct has brought suspicion on himself and has misled the prosecution into thinking the case against him is stronger than it is; where there is ample evidence to support a conviction, but the defendant is acquitted on a technicality which has no merit; and where the defendant is acquitted on one charge but is convicted on another. Somewhat inexplicably, the 1982 direction was withdrawn by a further practice note, Practice Direction (Crime: Costs) (1989) 1 WLR 625; (1989) 2 All ER 604, dealing with the discretion to award costs in courts other than magistrates' courts. It seems, however, that the spirit of the 1982 Practice Direction still applies: Harris (Gibson ed.), The Criminal Jurisdiction of Magistrates, 11th ed. (1988), par.9.02, p 607.

25. In Giles v. Samuels (1972) 3 SASR 307, at p 313, Bray C.J. repeated the view, which he said the Full Court had made clear in Hamdorf v. Riddle, that "the discretion of courts of summary jurisdiction on the question of whether costs should be awarded against the police does not depend on whether the police were at fault, but is to be exercised in the same way as on the trial of a civil action". But to put it that way is to conceal the difficulties, for a criminal proceeding is not the same as a civil proceeding and the very difference may be that which dictates a different approach to costs in criminal cases.

26. In a helpful judgment in Schaftenaar v. Samuels (1975) 11 SASR 266, Wells J. recognized this, although he was, of course, bound by Hamdorf v. Riddle. Historically, in criminal proceedings the basic common law principle that the Crown neither pays nor receives costs applied: Attorney-General of Queensland v. Holland [1912] HCA 26; (1912) 15 CLR 46, at p 49. In equity from an early date, there was the fullest power to order a defeated party to pay costs, but it was only gradually, and by statute, that any such power found its way into the common law: see, e.g., the Statute of Marlborough 1267 (U.K.) (52 Henry III c.6) and the Statute of Gloucester 1278 (U.K.) (6 Edward I c.1); Holdsworth, A History of English Law, 3rd ed. (1945), vol.IV, pp 536-537. After the Judicature Acts, all costs were within the discretion of the court. By rule it was provided in England that in civil jury trials costs followed the event unless the court should for good cause order otherwise. In non-jury cases the costs were left to the discretion of the court. Whilst the discretion was absolute and unfettered, it was to be exercised judicially, that is to say, not by reference to irrelevant or extraneous considerations, but upon facts connected with or leading up to the litigation. A successful party in a non-jury case had, in the absence of special circumstances, a reasonable expectation of obtaining an order for costs in his favour, but no right until he obtained an order; nevertheless, it was said that a court should not exercise the discretion against a successful party "except for some reason connected with the case": Donald Campbell and Co. v. Pollak (1927) AC 732, per Viscount Cave L.C. at pp 811-812. See now in the U.K., O.62, r.3(3) of the Rules of the Supreme Court 1965.

27. Different considerations arise in criminal proceedings which are brought, not for private ends, but for public purposes. It will be necessary to turn to those considerations in a moment, but it is immediately apparent that more than one view is tenable upon the question of whether costs in summary proceedings should, in the ordinary course, be awarded in favour of a successful defendant against a police informant. There are arguments of substance on either side which lead to different conclusions. But I do not think the question can simply be left in the air by saying, as the Full Court did in Puddy v. Borg, at p 628, that the discretion conferred by the relevant section "is one to be exercised in each case according to its own circumstances". Nor does it advance matters much to say, as is undoubtedly true, that the discretion must be "exercised judicially so as to achieve what is fair and just between the parties according to the circumstances of the particular case". The Full Court appears to have been fearful that, in giving any indication of the manner in which the discretion should be exercised, they might place fetters upon the discretion when the legislature intended it to be unqualified. But the failure to provide any indication of the proper approach is likely, on the one hand, merely to entrench the existing practice (as appears to have happened) or, on the other, to produce inconsistent and confusing decisions. Where a statute confers an unqualified discretion, an appellate court should not lay down rules which require that discretion to be exercised in a rigid or mechanical fashion. But it can and should point out those considerations which ought to guide the exercise of the discretion in the ordinary case so that, as far as possible, like cases will be decided in a like manner.

28. In Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, at pp 518-519, Mason and Deane JJ. discuss the provision of guidance for the exercise of an unfettered discretion. They point out that the development of appropriate principles or guidelines promotes consistency in decision-making and diminishes the risk of arbitrary and capricious adjudication. They continue:

"The point of preserving the width of the discretion

which Parliament has created is that it maximizes the

possibility of doing justice in every case. But the need

for consistency in judicial adjudication, which is the

antithesis of arbitrary and capricious decision-making,

provides an important countervailing consideration

supporting the giving of guidance by appellate courts,

whether in the form of principles or guidelines."

29. Apart from anything else, the lack of any uniform approach throughout Australia upon the question of costs in summary proceedings in criminal cases, despite substantially similar legislation, makes it desirable for this Court to identify those considerations which should be borne in mind in the exercise of the judicial discretion. As I have said, this is appropriately an appellate function, but the provision of guidance does not result in a rule of law from which courts of first instance cannot depart where the circumstances warrant departure. An exercise of the discretion which appears to disregard a guideline may miscarry, but by no means does that necessarily follow. The existence of an error, whether of law or fact, remains an indispensable condition of a successful appeal against the exercise of a discretion. As Mason and Deane JJ. point out in Norbis v. Norbis, at p 520:

"A failure to apply a guideline does not of itself amount

to error, for it may appear that the case is one in which

it is inappropriate to invoke the guideline or that,

notwithstanding the failure to apply it, the decision is

the product of a sound discretionary judgment. The failure

to apply a legitimate guideline to a situation to which it

is applicable may, however, throw a question mark over the

trial judge's decision and ease the appellant's burden of

showing that it is wrong. However, in the ultimate analysis

and in the absence of any identifiable error of fact or

positive law, the appellate court must be persuaded that the

order stands outside the limits of a sound discretionary

judgment before it intervenes."

30. In Victoria, little assistance upon the question of costs is to be gained from a comparison of summary prosecutions with civil proceedings. The more obvious comparison is with prosecutions for indictable offences where, in the absence of some special statutory provision, costs are awarded to neither side. True it is that upon summary conviction a defendant may be ordered to pay the informant's costs, but, in the case of a police informant, these do not ordinarily include professional costs. A police informant brings summary proceedings in his own name but he does so in the performance of a public duty in the same manner as the Crown prosecutes indictable offences. Nevertheless, if costs are awarded against him he is liable to pay them. Normally costs awarded against a police informant are met out of the public purse but in Victoria any such payment is made ex gratia and an informant may not be indemnified if those in authority consider that he has misconducted himself in relation to the prosecution.

31. It was as long ago as 1935 that Mann J. observed in Anstee v. Jennings that "the order for costs in a Court of Petty Sessions ... should have nothing to do with the reasonableness of the informant's action. It is a matter of giving proper indemnity to a successful defendant for costs to which he has been put without lawful justification" (at p 148). Nevertheless, the cases referred to by Carter J. in Lewis v. Utting and, indeed, the decision of the magistrate in this case would suggest that Mann J.'s observation and similar remarks in other jurisdictions have not significantly weakened a long-established practice on the part of magistrates in Victoria not to award costs against police informants who have acted reasonably. Plainly, an important justification for that practice is the fact that a police informant is performing a public duty. And it seems to me to be a quite legitimate consideration in determining whether costs should be awarded to a successful defendant that a police informant might be deterred from doing his duty by the prospect of costs being awarded against him, indemnification being a matter of discretion and not of right. It may not, as Carter J. observed in Lewis v. Utting, be a decisive consideration, but it is certainly not without significance. It may be noted that the legislation in Western Australia, in making provision for the payment of costs to successful defendants, avoids even the making of an order for costs against a police informant, even though any costs awarded to a successful defendant are paid from public funds.

32. These matters are not the only justification for what appears to be the present practice in Victoria. In summary proceedings no less than in other criminal proceedings, the prosecution must prove its case beyond reasonable doubt. In many cases defendants quite properly escape conviction without having positively established their innocence. However, to differentiate cases of that kind from those in which a defendant has established his innocence, and not merely raised a doubt, by making an order for costs against the informant in the one case but not the other, would be invidious and inconsistent with the presumption of innocence. Moreover, to award costs to a defendant against whom a charge has been proved on the balance of probabilities (but not beyond reasonable doubt) does not seem to be an appropriate exercise of discretion. Such a practice might subtly erode the standard of proof in criminal cases in order to avoid the granting of costs to a defendant who is probably guilty.

33. Clearly, where there is statutory provision for costs awarded to a successful defendant to be met out of public funds, it is a matter to be taken into account and may, depending upon the nature of the provision, be a determinative factor in the exercise of the discretion. But there is no such provision in Victoria, merely a practice which, although ordinarily followed, is not binding. It is because a police informant remains personally liable as a matter of law to pay any costs awarded against him that an order for costs may be, and commonly is, regarded as a means of penalizing or discouraging any improper or unreasonable behaviour on an informant's part in the conduct of the proceedings. Matters such as the failure properly to investigate a matter, lack of good faith in bringing the proceedings, or the failure to prosecute the proceedings in a proper manner may warrant the making of an order for costs against a police informant.

34. For all of these reasons, a successful defendant in summary proceedings for an offence can, in my view, have no expectation as a general rule, unlike a successful party in civil proceedings, that costs will be awarded in his favour. The discretion conferred by s.97(b) of the Magistrates (Summary Proceedings) Act was unfettered, but the considerations which a magistrate ought to take into account in criminal proceedings require a particular approach. All other things being equal, the mere acquittal of a defendant ought not to result in an order for costs being made in his favour against a police informant. Thus, the magistrate in this case was entitled, in the exercise of his discretion, to refuse to award costs in favour of the appellant. The appeal should be dismissed.

TOOHEY J. The judgment of Dawson J. recites the facts and statutory provisions relevant to this appeal. It also refers to decisions of courts, in Australia and England, in which the question of awarding costs against an informant in summary proceedings has been considered.

2. Those facts and those decisions lead Dawson J. to a conclusion that the appeal should be dismissed. As will appear, I have come to a different conclusion. It is therefore necessary that I state my own view as to the approach that should have guided the magistrate in this case.

3. While the power of the Magistrates' Court in Victoria was, at the relevant time, to order the payment of "such costs as the Court thinks just and reasonable", it does not follow that the discretion thereby vested in the magistrate was at large. Of course it must be exercised judicially but that is the beginning, not the end, of the trail.

4. The approach taken by the Full Court of the Supreme Court of Victoria in Puddy v. Borg [1973] VicRp 61; (1973) VR 626 results in little guidance to magistrates in the exercise of the discretion conferred by what was at that time s.105(1) and (2) of the Justices Act 1958 (Vic.); was at the time of these proceedings s.97(a) and (b) of the Magistrates (Summary Proceedings) Act 1975 (Vic.); and is now s.131(1) of the Magistrates' Court Act 1989 (Vic.).

5. In the present case Kaye J., before whom the order nisi was returned, relied upon the following passage in Puddy v. Borg, at p 628:

"The discretion is one to be exercised in each case

according to its own circumstances. Beyond limiting

the power to such costs as to the court seems just and

reasonable, the sub-section does not otherwise circumscribe

the discretion conferred. No doubt it must be exercised

judicially so as to achieve what is fair and just between

the parties according to the circumstances of the

particular case, and its exercise is open to challenge

according to the well-established rules which govern the

exercise of discretionary powers."

However, it is one thing for an appellate court to refrain from fettering the discretion of the magistrate unduly. It is quite another thing for such a court to refrain from giving guidance, "whether in the form of principles or guidelines": Norbis v. Norbis [1986] HCA 17; (1986) 161 CLR 513, at p 519. Without such guidance, it is hard for those exercising the discretion to achieve consistency and avoid arbitrariness in decision-making.

6. Dawson J. has classified the various strands of authority. I do not wish to add greatly to what has been said in that regard, except to point out that perhaps too much should not be made of the judgment of the Federal Court in Cilli v. Abbott [1981] FCA 70; (1981) 53 FLR 108 because the respondent in that case expressly accepted the statement of principle in McEwen v. Siely (1972) 21 FLR 131, "but sought to uphold the magistrate's departure from the general rule by reference only to a consideration which was said to make it unjust to award the defendant his costs": at p 111. Still, the Court in Cilli v. Abbott saw nothing untoward in giving effect to the concession and must be taken to have endorsed what had been said in Hamdorf v. Riddle (1971) SASR 398 and in McEwen v. Siely.

7. The decisions referred to by Dawson J. show that the trend of Australian authority, certainly as found in decisions of the Federal Court of Australia, the Supreme Court of the Australian Capital Territory and the Supreme Court of South Australia, favours an award of costs to a successful defendant in summary proceedings unless the defendant's own actions have precipitated the prosecution (for instance, refusal to give an account to the police when it would be reasonable to do so, or failure to tell the police of a witness who could support the defendant's account of the incident); or the defendant has prolonged the proceedings unnecessarily by his or her approach to the conduct of the litigation; or some other relevant consideration is present which makes it unjust to award costs to him or her. To what extent those decisions constitute a statement of principles or guidelines for magistrates is a matter that has to be considered.

8. What has emerged from a number of decisions is recognition that costs are awarded by way of indemnity to the successful party and, expressly or impliedly, that they are not by way of punishment of the unsuccessful party. Puddy v. Borg is to that effect: see at p 629. So too are Anstee v. Jennings [1935] VicLawRp 27; (1935) VLR 144, at p 148; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90, at p 92; Cilli v. Abbott, at p 111; Barton v. Berman (1980) 1 NSWLR 63, at p 74. In particular, those decisions reject or lend no countenance to the view that costs should not be awarded to a successful defendant in summary proceedings because to do so would discourage police officers from bringing prosecutions. The point was made succinctly by Mann J. in Anstee v. Jennings, at p 148:

" It may be worth while to point out that the order

for costs in a Court of Petty Sessions or other costs

should have nothing to do with the reasonableness of

the informant's action. It is a matter of giving proper

indemnity to a successful defendant for costs to which he

has been put without lawful justification."

9. Yet, consideration of the reasonableness of the informant's action seems to underlie the practice in Victoria of not awarding costs against the police, although we were told by the Solicitor-General for Victoria, who appeared for the respondent, that "the Court can assume that almost invariably the police will be indemnified out of the public purse". It appears that a similar practice exists throughout Australia. However, under the same legislative charter, courts of summary jurisdiction regularly award costs against unsuccessful defendants. It is true that ordinarily those costs do not include the fees of solicitors or counsel but that is because such prosecutions are usually conducted by police officers. However, an award of costs against a defendant will involve not only court fees, but the fees of witnesses, including professional witnesses, and the costs involved in obtaining scientific evidence such as a blood sample. The absence of a "professional" prosecutor can hardly explain, let alone justify, the differences in practice that exist.

10. Furthermore, while existing practice should not be ignored, if it is based on a misapprehension of legal principle it cannot dictate what the law should be. According to an affidavit filed in support of the application for an order to review the magistrate's decision, the magistrate refused to make an award of costs in favour of the appellant, because:

"(i) It was reasonable for the Informant to have sworn the

information, given that she had a reasonable suspicion

that the Defendant was in possession of stolen goods -

some of which were in fact now conceded to have been

stolen albeit not by the Defendant.

(ii) He did not propose to award costs to a Defendant in

circumstances where a Defendant had failed to seek

proof of identity or proof of ownership of goods at

the time of purchase, thereby causing a significant

suspicion to fall upon him and, notwithstanding that

his account of possession was accepted by the Court as

being satisfactory."

The first of these considerations is, in the light of the authorities, irrelevant. As to the second, views may differ as to the conduct of the appellant in buying car parts from someone known only by his call-sign of "Peter", whose address was apparently neither sought nor given, and in not seeking a receipt or evidence of ownership. But that was conduct which had necessarily taken place before any question of a prosecution arose. It was not conduct in the course of the police investigation. Furthermore, the appellant's explanation of his possession of the goods seems to have been accepted by the magistrate and there was nothing in the conduct of the defence which warranted an exercise of discretion against the appellant. Accordingly, the magistrate wrongly exercised his discretion by relying upon either of the two considerations mentioned above as a reason for refusing to award costs to the appellant.

11. The question still remains - are there principles or guidelines to be applied by magistrates in deciding whether or not to award costs to a successful defendant? Once the reasonableness of the prosecution and the risk of deterring police officers from launching prosecutions are put to one side, the way is open to expressing in more positive terms what shall guide the magistrate in his or her decision. To borrow some lines from Justice Cardozo, The Nature of the Judicial Process, (1949), pp 10-11, quoted by Wells J. in Schaftenaar v. Samuels (1975) 11 SASR 266, at pp 267-268:

"There, before us, is the brew. ... Some principle,

however unavowed and inarticulate and subconscious, has

regulated the infusion."

12. The judgment of Wells J., at pp 274-275, spells out a number of principles which, his Honour suggests, may be invoked as a guide by a court of summary jurisdiction. It is unnecessary to refer to those principles in any detail, save to endorse the notion that there is no necessity for a court of summary jurisdiction to make a particular finding as a condition precedent to the existence of the court's discretion as to costs. The relevant statutory provision, in the present case s.97(a) and (b) of the Magistrates (Summary Proceedings) Act, confers the discretion; the task for the magistrate is to exercise it. And the discretion may be exercised in favour of a successful defendant or against a successful defendant; but the court must not simply apply an inflexible rule.

13. If a prosecution has failed, it would ordinarily be just and reasonable to award the defendant costs, because the defendant has incurred expense, perhaps very considerable expense, in defending the charge. What Kirby P said in Acuthan v. Coates (1986) 6 NSWLR 472, at p 480, of defendants to committal proceedings is apposite:

"The section recognises that persons accused of criminal

offences can be put to a great deal of expense in defending

themselves. Unlike civil litigation, they cannot simply

compromise the matter. Their liberty, reputation and

pocket are, or may be, at risk."

It is unnecessary to speak in terms of a presumption; it is enough to say that ordinarily it would be just and reasonable that the defendant against whom a prosecution has failed should not be out of pocket.

14. Now, in a particular case there may be good reasons connected with the prosecution such that it would not be unjust or unreasonable that the successful defendant should bear his or her own costs or, at any rate, a proportion of them. To return to the examples given earlier in this judgment, if a defendant has been given the opportunity of explaining his or her version of events before a charge is laid and refuses the opportunity, and it later appears that an explanation could have avoided a prosecution, it may well be just and reasonable to refuse costs: see, by way of illustration, The Queen v. Dainer; Ex parte Milevich (1988) 91 FLR 33. 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. Again, if the manner in which the defence of a prosecution is conducted unreasonably prolongs the proceedings, for instance by unnecessary cross-examination, neither justice nor reasonableness demands that the successful defendant be indemnified, at any rate as to the entirety of the costs incurred. These illustrations are in no way exhaustive but what they point up is that a refusal of costs to a successful defendant will ordinarily be based upon the conduct of the defendant in relation to the proceedings brought against him or her.

15. The views expressed in this judgment do not seek to fetter the discretion of the magistrate faced with an application by a successful defendant for an order for costs. But they do seek to identify considerations which are irrelevant and those which are relevant on such an application. It is unnecessary to invoke the analogy of civil actions, though the considerations identified, on the one hand as relevant, and those on the other hand as irrelevant, may prompt such an analogy. Likewise, it is unnecessary to express the guiding principles as requiring an award of costs "unless ...", though again that may be the practical consequence of the application of those principles.

16. To the extent that awards of costs against police officers may be misunderstood as an implied criticism of those officers, a scheme such as is to be found in the Official Prosecutions (Defendants' Costs) Act 1973 (W.A.), referred to in Dawson J.'s judgment, has much to commend it. But, in the absence of such a scheme, magistrates should exercise their discretion according to the principles referred to in this judgment; concerns over a possible misunderstanding should costs be awarded against an informant are not relevant to the exercise of the discretion.

17. In all the circumstances, a proper exercise of the magistrate's discretion should have resulted in an award of costs to the appellant. The appeal should therefore be allowed, the order nisi made absolute and the respondent ordered to pay the appellant's costs of the proceedings before the magistrate, before the Supreme Court and before this Court.

McHUGH J. The issue in this appeal is whether in summary criminal proceedings a successful defendant should ordinarily be awarded his or her costs.

2. The detailed discussion of the facts, relevant statutory provisions and authorities in the judgment of Dawson J. enable me to proceed directly to my reasons for concluding that a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for costs against the informant and that the discretion to refuse to make the order should not be exercised against him or her except for a reason directly connected with the charge or the conduct of the proceedings.

3. An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connection with the litigation: Kelly v. Noumenon Pty Ltd (1988) 47 SASR 182, at p 184. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. Thus, in civil proceedings an order may, and usually will, be made even though the unsuccessful party has nearly succeeded or has acted reasonably in commencing the proceedings. It may, and usually will, be made even though the action has failed through no fault of the unsuccessful party. In Cilli v. Abbott [1981] FCA 70; (1981) 53 FLR 108, Keely, Toohey and Fisher JJ. pointed out (at p 111) that "the object of costs is not to penalize; it is to indemnify the successful party in regard to expense to which he has been put by reason of legal proceedings"; see also Anstee v. Jennings [1935] VicLawRp 27; (1935) VLR 144, at p 148.

4. Once it is perceived that costs operate as an indemnity and that the rationale of making a costs order is that it is just and reasonable that the successful party should be reimbursed for the costs incurred in bringing or defending the action, no ground exists for distinguishing between informants in summary proceedings who are public officials and those who are private persons. True it is that public officials should launch prosecutions only when the public interest requires it. This is the chief, but not the only, rationale for the rule that historically the Crown neither paid nor received costs. This rule also applied to a public official who instituted proceedings in his own name but really on behalf of the Crown: Reg. v. Beadle (1857) 7 El and Bl 492 [1857] EngR 427; (119 ER 1329). The purpose of enacting statutory provisions such as s.97 of the Magistrates (Summary Proceedings) Act 1975 (Vict.) ("the Act"), however, is to reverse the historic rule: Acuthan v. Coates (1986) 6 NSWLR 472, per Kirby P. at p 480. Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of a successful defendant in summary proceedings. To use them in that manner is to ignore the purpose of the legislature in enacting the legislation. Moreover, as the decisions on costs in summary proceedings in Queensland and Victoria demonstrate, if the rationales of the historic rule are taken into account in the exercise of the discretion to award costs, they result in practice in the continuance of the position which existed before the legislation, at least so far as informants not being liable for costs are concerned. In the rare cases in those States where a costs order is made against a police officer-informant, the real basis of the order is punishment of the police officer: he or she is ordered to pay costs because his or her conduct has fallen below what is expected of a police officer-informant. Paradoxically, the rationales of the historic rule are not used to defeat the exercise of the discretion in favour of the Crown or police informant when the informant seeks an order for costs. The result is unequal justice.

5. It follows that I am of the opinion that the South Australian Supreme Court in Hamdorf v. Riddle (1971) SASR 398 was correct in its general approach to the payment of costs in summary proceedings.

6. In civil proceedings, the relevant statute or rule often provides that costs follow the event unless the court thinks that some other order should be made. But even when the discretion is uncontrolled, civil courts act on the basis that a successful party has a reasonable expectation of obtaining an order for costs and that the discretion to refuse to award costs should not be exercised against the successful party except for a reason connected with the case. Thus, if a plaintiff sues on two causes of action and succeeds on one, he or she will obtain the general costs of the action and the costs of the cause of action on which he or she succeeded, but the defendant will receive the costs of the cause of action on which he or she was successful: Greeves v. Freshwater (1938) 55 WN (N.S.W.) 113.

7. It is true that the discretion to award costs in summary proceedings has to be exercised in circumstances which are not identical to those which exist in civil cases. For example, a criminal case cannot be settled, and the informant does not seek to vindicate any right or define any obligation of his or her own. Moreover, there are no written pleadings in criminal proceedings. The plea of not guilty in criminal proceedings, like its historic common law counterpart in civil proceedings, puts everything in issue. As Wells J. pointed out in Schaftenaar v. Samuels (1975) 11 SASR 266, at p 274, "the issues, apart from the one joined on the plea of not guilty, can be identified only from the course of the evidence and the addresses". But, despite the differences between civil and criminal proceedings, once the real issues in the summary proceedings are identified, there is no difficulty in applying in such proceedings principles akin to those applicable to the making or refusing of orders for costs in civil cases.

8. Nevertheless, it needs to be stressed that, subject to any contrary legislative indication, costs in summary proceedings do not follow the event and that a successful defendant in such proceedings, like a successful party in civil proceedings, has no right to an order for costs. As Viscount Cave L.C. pointed out in Donald Campbell and Co. v. Pollak (1927) AC 732, at pp 811-812:

"A successful defendant in a non-jury case has no doubt,

in the absence of special circumstances, a reasonable

expectation of obtaining an order for the payment of his

costs by the plaintiff; but he has no right to costs unless

and until the Court awards them to him, and the Court has an

absolute and unfettered discretion to award or not to award

them. This discretion, like any other discretion, must of

course be exercised judicially, and the judge ought not to

exercise it against the successful party except for some

reason connected with the case."

Likewise, a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution. Consequently, a magistrate ought not to exercise his or her discretion against a successful defendant on grounds unconnected with the charge or the conduct of the litigation. The fact that the informant has acted in good faith in the public interest or may have to meet the costs out of his or her own pocket is not a ground for depriving the defendant of his or her costs. 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 conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings: cf. Ritter v. Godfrey (1920) 2 KB 47, at pp 53, 54-60, 66; Sunday Times Newspaper Co. Ltd. v. McIntosh (1933) 33 SR(NSW) 371, at p 377; Redden v. Chapman (1949) 50 SR(NSW) 24, at p 25; Schaftenaar, at pp 274-275; see also McEwen v. Siely (1972) 21 FLR 131, at p 136. Thus, non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs: cf. Reg. v. Dainer; Ex parte Milevich (1988) 91 FLR 33. A successful defendant cannot be deprived of his or her costs, however, because the charge is brought in the public interest or by a public official, because the charge is serious or because the informant acted reasonably in instituting the proceedings or might be deterred from laying charges in the future if he or she was ordered to pay costs. Nor can the successful defendant be deprived of his or her costs because the conduct of the defendant gave rise to a suspicion or probability that he or she was guilty of the offence the subject of the prosecution. Hence, in most cases, the successful defendant in summary proceedings, like the successful party in civil proceedings, should obtain an order for costs in respect of those issues on which the defendant succeeds.

9. According to an affidavit filed in the Supreme Court in the present case, the magistrate said that he proposed to consider the exercise of his discretion by reference to the following matters:

"(i) It was reasonable for the Informant to have sworn the

information, given that she had a reasonable suspicion

that the Defendant was in possession of stolen goods -

some of which were in fact now conceded to have been

stolen albeit not by the Defendant.

(ii) He did not propose to award costs to a Defendant in

circumstances where a Defendant had failed to seek

proof of identity or proof of ownership of goods at

the time of purchase, thereby causing a significant

suspicion to fall upon him and, notwithstanding that

his account of possession was accepted by the Court as

being satisfactory."

10. The learned magistrate erred in taking into account that it was reasonable for the informant to have sworn the information. That is not a ground for depriving the appellant of his costs. The exercise of the magistrate's discretion, therefore, miscarried. Consequently, this Court must exercise the discretion which the magistrate has legally failed to exercise. In the circumstances of this case, the only possible ground for exercising the discretion against the defendant is that he failed to seek proof of the identity of the owner or proof of the ownership of the goods at the time of the purchase.

11. The magistrate appears to have accepted the evidence of the appellant that, in early December 1987, he had a conversation on the CB radio with a man who used the call sign "Peter" and who said he was selling Ford GT sedan, model XY parts from a car which he was wrecking. The appellant made an arrangement to meet the man. When he met him, he realised that "Peter" was the same man that he had seen at drag races at Dandenong when the man was driving a red GT Ford model XY with black interior. He arranged to buy the seats and door trims from "Peter" at an agreed price of $350. "Peter" later delivered those goods to his home. The appellant said that he considered $350 to be a fair, and not a bargain, price and that he had sold the seats and trims from his own vehicle for $300. The appellant said that it had never occurred to him to ask for proof of ownership because he knew from his sightings of the man over several months that he was "apparently the owner" of a vehicle of the type concerned and that he had no reason to imagine that he was not the true owner of the parts which the appellant assumed to have come from that vehicle. The appellant did not know the man's true name. The appellant said that, during an adjournment shortly before giving his evidence, he had learned from Mr Phillips, the owner of the stolen car, that the true name of "Peter" was Greg Opparo or Greg Apparo.

12. According to an affidavit sworn by the informant in the proceedings in the Supreme Court, she asked the appellant "where he got the bits on the car, checked around the house for any other parts and checked his room for any receipts for the parts purchased or the name of the fellow he stated he had bought them from". The account which the appellant gave to the informant when she interviewed him was not materially different from the account which he gave in the witness box. It was common ground that the appellant did not obtain a receipt for the payment of the goods.

13. In the circumstances, this Court cannot refuse to order the informant to pay the appellant's costs incurred in defending the proceedings before the learned magistrate. The prosecution tendered no evidence in support of the indictable offence of theft. The magistrate held that there was no evidence to support the indictable charge of receiving stolen goods and, on the summary charge of unlawful possession, he accepted the appellant's account of how he obtained the goods. It is true that, when the goods turned out to be stolen, suspicion fell on the appellant because he had not obtained a receipt for the purchase or sought to establish the identity of the person from whom he bought the goods. The claim that the appellant should be deprived of his costs really depends, however, upon the proposition that a person who buys goods in the circumstances in which the appellant did is not entitled to his or her costs because his or her conduct has caused suspicion to fall upon him or her. If that is a ground for refusing a costs order in summary proceedings, most successful defendants would not obtain a costs order. The mere fact that a successful defendant's conduct has given rise to a suspicion that he or she was guilty of the offence charged is not a reason for depriving that person of his or her costs.

14. The appeal should be allowed. The orders of the Supreme Court made on 29 September 1989 should be set aside. In lieu thereof, it should be ordered that:

(a) the order nisi be made absolute; (b) the order of the magistrate refusing the appellant's

applications for costs be set aside; in lieu thereof,

it should be ordered that the appellant's costs of the

proceedings before the magistrate on 20 April 1989 be paid by

the respondent; and

(c) the appellant's costs of the order nisi be paid by the

respondent.

The respondent should pay the appellant's costs of and incidental to this appeal including the application for special leave to appeal.

ORDER

Appeal allowed with costs.

Set aside the orders of the Supreme Court of Victoria made on 29 September 1989 and in lieu thereof order that:

(i) the order nisi be made absolute;

(ii) the order of the magistrate refusing the appellant's

application for costs be set aside and in lieu thereof order that the appellant's costs of the proceedings before the magistrate on 20 April 1989 be paid by the respondent;

(iii) the appellant's costs of the order nisi be paid by the respondent.