Currie, J.K. v The Queen

[1992] FCA 180

JUDGMENT NO. g pay*,;

IN THE FEDERAL COURT OF AUSTRALIA	)	1
AUSTRALIAN CAPITAL TERRITORY	i

) No. ACT G 4 of 1992

DISTRICT REGISTRY	) )
GENERAL DIVISION	)

BETWEEN: JAMES KENNETH CURRIE

Applicant

AND: THE OUEEN

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER :	Neaves J.
DATE OF ORDER	14 April 1992
WHERE MADE	Canberra
THE COURT ORDERS THAT the appllcat~on	filed on 19 March 1992
be dismissed.
Note: Settlement and entry of orders 1s dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA	)
AUSTRALIAN CAPITAL TERRITORY	)  No. ACT G 4 of 1992
DISTRICT REGISTRY	)
GENERAL DIVISION

BETWEEN: JAMES KENNETH CURRIE

Applicant

AND: THE OUEEN

Respondent

CORAM: Neaves J.

m: 14 April 1992

REASONS FOR JUDGMENT

James Kenneth Currie ("the applicant") has applied to this Court for an order described in the application as an application for an extension of time in which to file and serve a notice of appeal from a judgment of the Supreme Court of the Australian Capital Territory given on 20 February 1992. In truth, it is an application under Order 52, rule 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal from that judgment: see Jess v. Scott (1986) 12

F.C.R. 187 at pp.187-8.

It is necessary for the applicant to seek such leave as a notice of appeal was not filed and served wlthin the time prescribed by Order 52, rule 15(l)(a) and an application to extend the time so prescribed was not made by motion within that time pursuant to Order 52, rule 15(l)(b). It is, therefore, necessary for the applicant to show that there are "special reasons" for the grantlng of leave.

On 17 February 1992, the applicant was arraigned in the Supreme Court of the Australian Capital Territory upon an indictment signed by the Director of Public Prosecutions for the Australian Capital Territory charging him with an offence against s.92L(2) of the Crimes Act, 1900 (N.S.W.) in its application in the Territory. After a trial before a judge and jury, the applicant was, on 20 February 1992, found not guilty of the offence charged.

Before the applicant was discharged, his counsel informed the learned trial judge that he was instructed to make an application for an order for the payment of the applicant's costs of the trial. Counsel frankly informed his Honour that, in the light of the authorities, he was bound to refuse the application. He referred to s.15 of the Australian Capital Territory Supreme Court Act 1933 (Cth) and to the

decision of a Full Court of this Court in Z1, v. (1988) 19

F.C.R. 212. Reference was also made to the decision of the High Court in Latoudis v. Casey (1990) 170 C.L.R. 534. That

case, however, concerned the scope of the discretionary power

to award costs in criminal proceedings in a court of summary

jurisdiction.

Section 15 of the Australian Capital Territory

Supreme Court Act provides:

"(l) The Supreme Court, and the Judge sitting in Chambers, shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

( 2 ) Subject to Rules of Court, to any Ordinance and to the express provisions of any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or Judge, and the Court or Judge shall have full power to determine by whom and to what extent the costs are to be paid.

( 3 ) Nothing in this section shall alter the practice which would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the

Court. "

The trial judge refused the application holding that
he was obliged to do so by the decision of this Court in R, v.

(supra). The applicant was thereupon discharged from

custody.

In support of the present application two several affidavits of Malcolm Henry Hansen, the applicant's solicitor, sworn respectively on 19 and 23 March 1992 have been filed. The affidavit of 19 March 1992 deposed to the following:

"5. M r Currie resides in Western Australia and at the conclusion of the trial returned to that State.

6.  On 25 February 1992 I wrote to Mr Currie enclosing an application for legal aid to be completed by him and returned to myself for lodglng with the Legal Aid Office (ACT).

7.  On 13 March 1992 the completed legal aid form was returned to my office and on 18 March 1992 I attended upon the Legal Aid Office (ACT) for the purpose of a grant of legal ald for an appeal to be lodged to this Honourable Court regarding the question of costs which was refused by Higgins J in the Supreme Court on 20 February 1992.

8. My client was granted legal aid for the purpose of filing a Notice of Appeal with this Honourable Court although a period in excess of 2 1 days had expired from the date of the Supreme Court judgment.

9.  As a consequence of the delays which, I submit, were not within anyones' [sic] control the time has lapsed in which to lodge an appeal to this Honourable Court."

It thus appears that the time within which to file and serve a notice of appeal had expired before the completed legal aid form had been returned to the applicant's solicitor. No explanation for that delay has been offered. Further; it does not appear from the material when the applicant gave instructions for an appeal to be instituted.

The application is opposed by counsel for the

respondent.

In v. (supra) , the respondent had been

charged by information laid on 20 March 1986 with an offence of assault and robbery alleged to have been committed on 17 June 1981. He was committed for trial, having pleaded not guilty before a magistrate. The respondent applied to the Supreme Court of the Australian Capital Territory by motion

informant pay the costs of the applicatlon. The basis of the	for orders that the trial be stayed and that the original
stay applicatlon was dilatory conduct on the part of the
investigating police. After a contested hearing, the trial
judge suggested that the indictment be presented and, upon that belng done, it was ordered that further proceedings on the indictment be stayed permanently and that the Crown pay M r Goia's costs of the motion. From the latter order an appeal was brought to thls Court.

Forster and Pincus JJ., at pp.213-4 of the report,

said:

"About the general rule as to costs in criminal cases, there can be no doubt ' . . . in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown': per Gallop J in B v J (1983) 49 ALR 376 at 379; see also McEwen V (1972) 21 FLR 131 at 135. In _R V. J Gallop J, with whose judgment the other members of the Full Court agreed, was dealing with an.

unsuccessful Crown appeal against sentence. The general rule as that case made clear, covers proceedings other than those in which the guilt or innocence of the accused is in question; it applies to appeals against sentence also. Further, it applies to applications for change of venue, and for adjournment, in criminal matters: R v. Kimmins;

paste Attornev-General [l9801 Qd 524. In that case Douglas J, with whom the other members of the Full Court of the Supreme Court of Queensland agreed, remarked (at 525):

'Counsel for the prisoners argued that, at least in regard to interlocutory proceedings, the learned District Court judge had power to award costs. For my part I see no difference between interlocutory and final proceedings so far as the rlght to costs is concerned. At no level is there any right to costs.'

In using the words 'At no level', the learned judge must have had In mind proceedings other than before justices or magistrates: see ss 157-159 of the	Justices Act 1886 (Qld) and the positlon in other	jurisdictions as discussed by Carter J in Lewis v
Uttina: Ex parte Uttinq [l9851 1 Qd R 423 at 430- 444.
The rule as to costs in criminal proceedings is one of importance which considerably affects, for good or ill, the nature of criminal process in this country. An accused person, at least if legally aided or unrepresented, may put the Crown to proof without risking his or her assets. The entitlement to do so has been treated as extending to interlocutory process: for example, applications for adjournment. The rule has always been regarded as reciprocal, although, as the cases to whlch reference has been made illustrate, special
consrderations are taken to apply to at least certain sorts of appellate proceedings instituted by
the Crown. "

In the passage in McEwen v. Sielv (supra) to which their Honours referred, Fox, Blackburn and Connor JJ., sitting as a Full Court of the Supreme Court of the Australian Capital Territory sald (p.135):

"There is, of course, a firmly-established practice in the trial of indictable offences in the Supreme Court of the Australian Capital Territory that the Crown neither asks for costs nor pays them."

In relatron to that passage, Forster and Pincus JJ. said, at p.215:

". . . . it seems clear that the practice must be

preserved, barring legislative intervention. We are of opinion that the learned primary judge was, with respect, in error in treating his order staying proceedings on the indictment as not berng within the ordinary rule as to costs in criminal cases."

Miles J. dissented in R, v. (supra) but only

upon the question whether the circumstances of the case before the Court fell outside the well-established practice, which his Honour clearly recognised, that the prosecution neither seeks costs nor has costs awarded against it in respect of a trial whlch follows a plea of not guilty upon arraignment, or in respect of the sentencing process which follows upon a conviction after trial or upon a plea of guilty (see the report, pp.218-9).

Counsel for the applicant sought to rely on the dissenting judgment of Miles J. in R, v. (supra) but there is nothing in that judgment which supports the view that the applicant should have his costs of the criminal trial which resulted in his acquittal on the charge on which he was arraigned. It should be added that the present case does not fall within any recognised exception to the general practice. It has not been suggested that the particular facts of the present case disclose exceptionally reprehensible conduct on the part of the prosecution or anything of that kind.

In my opinion, no sufficient grounds have been established to warrant the grant to the applicant of leave to file and serve a notice of appeal from the judgment of the Supreme Court. Any change in the long-standing practice to which s.15(3) of the Australian Capital Territory Supreme Court Act requires that court to conform will require the intervention of the appropriate legislature (see R, v.

(supra) at p.215). The application is dismissed.

I certify that this and the

preceding 6 pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Neaves .

V

Associate

Dated: 14 April 1992

Counsel for the applicant : M r J.A. Loxton

Solicitors for the applicant : Hansen Naylor

Counsel for the respondent : Mr S.G. Madden

Solicitor for the respondent : Director of Public

Prosecutions (A.C.T.)

Date of hearing	: 26 March 1992
Date of judgment	: 14 April 1992