A Magistrate should not have awarded costs to a Policeman who had an assault case against him thrown out of court, a lawyer argued yesterday.

Crown counsel Carrington Mahoney told Supreme Court that Senior Magistrate Archibald Warner did not give reasons for ordering that the Crown should pay the legal costs of P.c. Robert Butterfield, who had been charged with assault, threatening behaviour and unlawful entry.

Mr. Mahoney told Puisne Judge Charles-Etta Simmons that the Crown was appealing Mr. Warner?s order as it believed it was made in error.

The prosecution offered no evidence against P.c. Butterfield, 36, of St. George?s, when his Magistrates? Court trial was due to start on June 27.

The case was dropped because complainant Kimberlee Pitcher, the mother of P.c. Butterfield?s baby daughter, wrote to Mr. Warner to say she did not want to pursue the matter.

Mr. Mahoney said yesterday that the court?s record of the proceedings ? a handwritten note made by Mr. Warner ? did not contain any information to explain why the order for costs was made.

?Was it on the basis that the charge was unfounded, that it was frivolous or that there was some improper motive?? he said. ?We don?t know. There?s no evidence, no reasoning. The order is just made.?

Mr. Mahoney added that the costs were made against Angela Cox ? the Police officer acting in court on behalf of the Commissioner of Police.

?The question is: if such an order is made, against whom can it be enforced? It can?t be Ms Pitcher. It can?t be Ms Cox in her personal capacity. It can?t be the Commissioner of Police and it can?t be the Director of Public Prosecutions.

?Can the court really enforce such an order??

He said that the Department of Public Prosecutions received a copy of Ms Pitcher?s letter the day before the trial was to begin and that her evidence was ?basically the only evidence we had?.

Allan Doughty, representing Mr. Butterfield, said he was present at the Magistrates? Court proceedings. ?For some reason the vast majority of what was said on that date does not appear in the magistrate?s notes,? he said. ?The learned magistrate stated that the matter was being tape recorded.?

Mrs. Justice Simmons ordered that Mr. Warner ? who is off the Island at the moment ? submit a report on whether his handwritten note or the tape recording was the official record.

She adjourned the case to a date to be fixed.