Ashrafi v Director of Public Prosecutions (Cth)
[2021] TASSC 48
•4 October 2021
[2021] TASSC 48
COURT: SUPREME COURT OF TASMANIA
CITATION: Ashrafi v Director of Public Prosecutions (Cth) [2021] TASSC 48
PARTIES: ASHRAFI, Hossain Ali
AYOUBI, Fatima
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
FILE NO: 1147/2019
DELIVERED ON: 4 October 2021
DELIVERED AT: Hobart
HEARING DATES: 3 September 2021
JUDGMENT OF: Pearce J
CATCHWORDS:
Criminal Law – Procedure – Costs – Power to award.
R v Kinal [1978] Tas SR 91, applied
Aust Dig Criminal Law [3179]
High Court and Federal Court – The federal judicature – Application of State laws – Generally – Tasmanian legislation allowing an award of costs in criminal cases – No application of State legislation to federal offences.
R v Kinal [1978] Tas SR 91, applied.
Aust Dig High Court and Federal Court [1042]
REPRESENTATION:
Counsel:
Applicants: R Nida
Respondent: K Breckweg
Solicitors:
Applicants: United Chambers
Respondent: Director of Public Prosecutions (Cth)
Judgment Number: [2021] TASSC 48
Number of paragraphs: 23
Serial No 48/2021
File No 1147/2019
HOSSAIN ALI ASHRAFI and FATIMA AYOUBI
v DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
REASONS FOR JUDGMENT PEARCE J
4 October 2021
Hossain Ashrafi and Fatima Ayoubi, were charged on separate complaints with possessing a slave and trafficking in persons, contrary to the Criminal Code Act 1995 (Cth), s 270.3(1)(a) and s 271.2(1), respectively. On 29 September 2020 I was informed that the Commonwealth did not intend to file an indictment on any of the charges. I ordered that the complaints against both applicants be dismissed. Upon dismissal of the complaints, application was made on behalf of both applicants for an order that the Commonwealth pay the costs of the proceedings. The application is brought under the Costs in Criminal Cases Act 1976 (Tas), s 4(1)(b).
For the following reasons I would decline to make the order sought and dismiss the application.
The procedural history
The applicants were arrested by the Australian Federal Police and charged on 23 July 2019. They appeared in the Magistrates Court in Launceston and were granted bail. Because both charged offences were punishable by imprisonment for a period exceeding 12 months, they were indictable offences: Crimes Act 1914 (Cth), s 4G.
The applicants assert in their submissions that, prior to being committed to the Supreme Court, they appeared in the Magistrates Court on 13 August 2019, 24 October 2019 and 12 November 2019. On 6 December 2019 the applicants were committed to the Supreme Court for trial and were bailed to appear in the Supreme Court on 3 February 2020. The Supreme Court file discloses the following. On 3 February 2020 both applicants appeared, were represented by the same counsel, and a directions hearing was conducted. The Court was informed that a large amount of material had been served on the defence and further disclosure was to follow. The proceedings were adjourned to 3 April 2020. On that day counsel for the applicants indicated the possibility that application may be made for examination of witnesses on oath at preliminary proceedings in accordance with the procedure specified in the Criminal Code 1924 (Tas), s 331B(2)(a), but sought an indication of what witnesses were to be called and what evidence was to be adduced by the prosecution. The matter was adjourned by consent to 31 August 2020. Counsel for the applicants then attended by phone. Counsel for the prosecution sought a further adjournment of the proceedings. The documents sought by the defence had not been provided but a brief was with senior counsel for review. Counsel for the applicants complained about the non-provision of material and indicated that it was "only when the documents are provided that some progress with the case can be made".
It was when the matter next came before the Court on 29 September 2020 that the prosecution indicated that the prosecution would be discontinued. Counsel for the applicants immediately indicated her intention to make an application for costs. A written application was made on the same day seeking an award of costs for the applicants for the hearings on 6 December 2019, 3 April 2020 and 31 August 2020.
Between the making of the application and August 2021, both parties filed written submissions. Short oral argument was heard on 3 September 2021.
Jurisdiction to make the order sought
The well-established general rule at common law is that the Crown neither receives nor pays costs: Attorney-General v Holland (1912) 15 CLR 46 at 49; Ex parte Hivis; Re Michaelis (1933) 50 WN (NSW) 90 at 92. Although the point was not argued here, I think it likely that Brooking J was correct to state in R v Wright, Danci and Currie (1992) 77 A Crim R 67 that it was not because the Crown was in a special position, but because, in the absence of a statutory provision to the contrary, there is no power to award costs. His Honour said, at 69:
"Accordingly, in the absence of some statute enabling courts to order payment of costs in prosecutions for indictable offences, the fundamental operative principle was, not that the Sovereign did not pay costs, as it was her prerogative not to pay them to a subject, and did not receive costs, because that was beneath her dignity … but that, costs being the creature of statute, the court had in the absence of statute no power to order payment of costs either by or to the accused, whether the prosecution was for the Queen or a private prosecutor. The special position of the Crown arose for consideration only where the prosecution was for the Queen and some statute did provide for the payment of costs: it was then a question whether the statute authorised the making of an order for costs in favour of or against the Crown."
See also the analysis of the Supreme Court of Victoria Court of Appeal in Perkins v County Court of Victoria [2000] VSCA 171, 2 VR 246.
For that reason, in this case, the applicants rely for support of their application on the power granted by the provisions of Tasmanian legislation, the Costs in Criminal Cases Act 1976. The contention cannot succeed because, on its proper construction, that Act applies only to State offences and no provision of the Judiciary Act 1903 (Cth) picks up and applies it in the exercise of federal jurisdiction.
In R v Kinal [1978] Tas SR 91, Green CJ decided that the Costs in Criminal Cases Act was not intended to apply to the Crown in right of the Commonwealth. His Honour determined that, for reasons I need not repeat, the Judiciary Act, s 68, did not apply, and that s 79 of that Act did not "operate so as to give the State Acts of Parliament a new meaning or an operation which they would not otherwise have had". It was submitted by the applicants that I should not follow Kinal, but, in my view, subsequent authority from other jurisdictions confirms the correctness of his Honour's conclusion: Solomons v District Court (NSW) [2002] HCA 47, 211 CLR 119; DPP (Cth) v Hunter[2003] VSCA 219, 7 VR 119.
The Costs in Criminal Cases Act does not apply of its own force to federal offences, and it is not made applicable to criminal cases in the federal jurisdiction by s 39(2), s 68(1) or (2), or s 79 of the Judiciary Act. Although the terms of the costs legislation considered in Solomons concerned payment of costs from a State fund, I think the reasoning of the High Court applies with equal force. The terms of the Costs in Criminal Cases Act, s 6(1), make clear that in the case of complaints made by a public officer, it is a State Department or authority which is to bear the responsibility for payment.
In dealing with the charges against the applicants, this Court was exercising federal jurisdiction conferred by s 39(2) of the Judiciary Act. The law which governs the exercise of that jurisdiction is to be identified in accordance with ss 79 and 80 of the Judiciary Act: Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38, 223 CLR 251 at [8]. State law, in particular, the Costs in Criminal Cases Act relied on by the applicants, could have effect only through the agency of a federal law: Rizeq v The State of Western Australia [2017] HCA 23, 262 CLR 1; Moore v Scenic Tours Pty Ltd [2020] HCA 17, 94 ALJR 481 at [3]. In Masson v Parsons [2019] HCA 21, 266 CLR 554, the plurality of the High Court referred to Rizeq v Western Australia (above) and stated at [30]:
"As was explained in Rizeq v Western Australia, the purpose of s 79(1) of the Judiciary Act is to fill a gap in the laws which regulate matters coming before courts exercising federal jurisdiction by providing those courts with powers necessary for the hearing and determination of those matters. In the case of a State court exercising federal jurisdiction (as in Rizeq), or a federal court exercising federal jurisdiction (as in this case), such a gap exists by reason of the absence of State legislative power to command a court as to the manner of its exercise of federal jurisdiction. In such cases, s 79(1) fills the gap by picking up the texts of State laws governing the manner of exercise of State jurisdiction and applying them as Commonwealth laws governing the manner of exercise of federal jurisdiction. But, as was stressed in Rizeq, s 79(1) of the Judiciary Act has no broader operation than that. In particular, s 79(1) is not directed to, and it does not add to or subtract from, laws which are determinative of the rights and duties of persons as opposed to the manner of exercise of jurisdiction." [Footnotes omitted.]
The power to award costs in the Costs in Criminal Cases Act is a provision which determines the rights and duties of a person, as opposed to the manner of exercise of jurisdiction.
The Costs in Criminal Cases Act 1976
Regardless of the correctness of the view I have expressed about the application of the State legislation to federal offences, I would decline to make a costs order in any event. Section 4 of the Costs in Criminal Cases Act provides:
"4 Costs of successful defendant
(1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where –
(a) he is acquitted of the offence;
(b) the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence –
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.
(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."
The Act confers a discretionary power to grant costs: R v Cashinella [1994] TASSC 177; Gesler v Hibble [2008] TASSC 31. The mere fact that a prosecution is discontinued is not sufficient to justify an order. Section 4(2) requires the Court to have regard to all relevant circumstances. It refers to five particular matters, none of which are conclusive: Gesler at [20], Cashinella at [15]. Subsections (3) and (4) are designed to ensure that the particular circumstances referred to in those subsections are not of themselves to require the grant or refusal of costs in a particular case. The discretion is to be exercised in accordance with the guidance given by Cosgrove J in R v Freshney [1977] Tas SR 126. That decision has been regarded as the leading authority in many subsequent cases such as Coleman and Wholgemuth v Harper [1993] TASSC 60, Gray v Brown [1995] TASSC 27, Makela v Bass [2009] TASSC 120, Nilsson v Department of Police and Emergency Management [2010] TASSC 6, and Nilsson v Tasmania [2010] TASFC 7. In Freshney, Cosgrove J said at 28:
"It seems to me to follow that the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion …".
He also added:
"The statute does 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, an acquittal not being a declaration of innocence (so much is spelt out in the section)."
At the outset it is necessary to point out that I have been given no evidentiary or other material about the subject of the charges, the nature of the case against the applicants, what circumstances led to the applicants being charged, what evidence was or was not available to the prosecution, or what circumstances led to the decision to not indict. The highest it can be put is that the applicants, in submissions, have commented about passages of material extracted from witness statements contained in the prosecution disclosure documents. The comments include untested general assertions about the credibility and reliability of statements made by those persons, or the general lack of probative force of such evidence, assuming that the persons were to give evidence in those terms.
There is no proper basis for a conclusion that proceedings were not brought and continued in good faith. The applicants submit I should infer that there was an absence of good faith because the proceedings had no "real prospect of success." Reliance is placed on the analysis of the meaning of that phrase in Port Macquarie - Hastings Council v Lawlor Services Pty Limited; Port Macquarie - Hastings Council v Petro(No 7) [2008] NSWLEC 75. The submission cannot succeed for a number of reasons. The phrase referred to does not appear in the Tasmanian legislation. The absence of a real prospect of success does not, to me, indicate an absence of good faith, although it may be a factor. More fundamentally, however, the material before me is not sufficient to establish that the submission is correct.
Nor have I been provided with any material sufficient to satisfy me of the factors referred to in s 4(2)(b) or (c), that is, that proper steps were not taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings, or that the investigation into the offence was not conducted in a reasonable and proper manner. For the same obvious reason this is not a case in which I could be satisfied that the evidence as a whole would support a finding of guilt, but the applicants are discharged from the proceedings on a technical point: s 4(2)(d).
The remaining matter I am required to consider is specified in s 4(2)(e). This is not a case in which the applicants have been discharged from the proceedings because they established, either by the evidence of witnesses called by them or by cross-examination of witnesses for the prosecution or otherwise, that they were not guilty. The provision does not have operation because, in this case, the complaint was dismissed in advance of a hearing and without evidence of witnesses or cross-examination. Some understanding of how the costs discretion may be exercised when there has not been a hearing or trial might be gained from the cases concerning how s 4(2)(e) has been taken to operate when there has been a hearing. In Langmaid v Millhouse [2001] TASSC 58, 10 Tas R 170, Cox CJ at 181 said as to the proper approach:
"Thus s4(2)(e) applies where the judge presiding at a jury trial or magistrate sitting as the tribunal of fact is affirmatively satisfied of innocence, or is satisfied that a tribunal of fact, even though there is a case to answer, ought to have a reasonable doubt. Before it can apply, the situation must be such that it goes beyond the stage where reasonable people might properly entertain different conclusions as to guilt and reach that where a conclusion of innocence or reasonable doubt as to guilt is the only reasonable outcome."
In Nilsson v Tasmania (above), Crawford CJ, with whom Blow J (as he then was) and Porter J agreed, accepted at [105] that it is clear from the terms of s 4(2)(e) that the factor of the defendant having established that he or she was not guilty applied only to situations where the defendant was discharged from the proceedings because he or she established that he or she was not guilty. It is frequently the case that, in advance of a hearing, a prosecuting authority will independently conclude, in the exercise of proper prosecutorial discretion, that charges should not proceed. Such a decision may be influenced by matters raised by the defence. In considering costs, it is relevant to take into account why the prosecution was discontinued. The applicants' submissions refer to prosecution evidence which was "uncorroborated", and evidence of the "victim" which was weak because it contained inconsistencies and was contradicted by other evidence. For reasons already expressed, I have no proper means of judging any such assertions. I am not satisfied that there was a fundamental flaw that should have been evident to the prosecution before charges were brought, or at some stage before the prosecution was in fact discontinued, that there was objective evidence that positively demonstrated that the prosecution could not succeed, or that the only conclusion open was that of a reasonable doubt if the case had continued. It might be inferred, though not necessarily, that the decision to not indict arose from some flaw in the evidence to support the charges, but that inference goes nowhere near justifying a costs order based on the considerations arising from s 4(2)(e) or any of the other paragraphs of s 4(2).
The factors relevant to the exercise of the discretion in s 4 to award costs are not confined to the factors specified in s 4(2). In this case, the applicants point to delay in the proceedings. The submission is without merit. After the applicants were committed to this Court there was an initial directions hearing, as occurs in every matter, and then two other relatively formal directions hearings before the prosecution decision not to proceed was notified to the Court on 29 September 2020. The case was never listed for trial and, as far as I can tell, was nowhere near being ready for trial. In light of the normal delay in preparation of matters in this Court, it progressed at a relatively standard pace, and the decision to not indict was made at an appropriate time. The applicants were not unreasonably and unnecessarily put to any costs, still less the costs of preparing for trial.
Conclusion and orders
For the foregoing reasons I would not make the order for costs applied for. The application is dismissed.
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