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Judge overrules magistrate over costs finding

A judge has overruled a decision by the Senior magistrate to order the Crown to pay the legal expenses of a man accused of speeding.

Senior magistrate Juan Wolffe made the order after prosecutors failed to provide a witness statement from the officer who operated the speed detecting laser despite requests from the defendant.

But in a written judgment, Puisne Judge Shade Subair Williams said the magistrates’ ruling was unlawful and unreasonable in the circumstances.

Mrs Justice Subair Williams said: “The obligation owed by the Crown to the defence was to ensure that the fact of the laser evidence was made known to the defence.”

She added that if the matter had proceeded, the defence would have been able to talk to the officer prior to the trial and summon them to give evidence.

“For these reasons, I find that it would have been unreasonable of the Senior magistrate, even if empowered with an unfettered power of discretion, to order costs against the Crown for non-disclosure of unused material which was not confirmed to be in existence,” Mrs Justice Subair Williams said.

The court heard that the defendant, Ryan North, appeared in Magistrates’ Court on October 27, 2020 and pleaded not guilty to a charge of driving at 82kph on September 11 that year.

He returned to the court on November 16, at which point the Crown provided him with all the information it intended to rely on at trial, but the prosecutor said it was still awaiting a statement from the officer who operated the laser.

Two weeks later the matter returned to the court, at which time Jonathan White, counsel for Mr North, said he would make an application for costs if the statement was not provided by the next appearance.

On December 4, 2020, the Crown offered no evidence against Mr North for the charge and Mr Wolffe, the presiding magistrate, ordered costs against the Crown.

Mr Wolffe said the speeding matter was simple and the statement should have been easily available.

“The police must do better,” he added. “The required statement, on the face of it, would be a simple one and surely would not take a lot of time to put together.

“The fact that it is not done portrays a nonchalant attitude towards keeping the wheels of justice moving at a reasonable pace.

“This cannot take place and if the court is able to register its concern about non-disclosure it shall do so by way of a costs order.”

However the Crown launched an appeal against the decision in the Supreme Court, where it argued the Senior magistrate’s decision was wrong under the law.

While magistrates are empowered to make cost orders, Mrs Justice Subair Williams said the rule was concerned with the “wrongfulness of the charges” rather than the manner in which the Crown prosecutes the charges.

She said: “In the end, the Senior magistrate would have had to have been satisfied on the facts established before him that the evidence culminating in the charging of the accused was such that he would have reasonably concluded that the charge itself was unfounded.

“No assessment of these facts appears to have been undertaken by the court below.

“Any conceded failure by the crown to secure or disclose a witness statement does not establish a factual basis for finding that the speeding charge in question was unfounded for the purpose of this section.”

Mrs Justice Subair Williams said the Crown had put forward the evidence it intended to rely on, and there was nothing before the Senior magistrate to suggest that a statement from the laser officer had been prepared.

“The reasoning provided in the magistrate’s judgment was made on the basis that a statement had not been prepared,” the judge added.

“So, it begs to question whether the Crown was under any duty to direct that such a statement be prepared, particularly since it would have only stood as unused material.”

As a result of her findings, Mrs Justice Subair Williams set aside the costs order against the Crown.