Director of Public Prosecutions - [2000] NTCA 10

Director of Public Prosecutions [2000] NTCA 10
PARTIES:DIRECTOR OF PUBLIC PROSECUTIONS REFERENCE NO 1 of 1999
TITLE OF COURT:  COURT OF APPEAL (NT)
JURISDICTION:  APPEAL from SUPREME COURT exercising Territory jurisdiction
FILE NO:AP6 of 1999 (9811495)
DELIVERED:  11 September 2000
HEARING DATES:  22 June 2000
JUDGMENT OF:  MILDREN, THOMAS & BAILEY JJ
CATCHWORDS:
REPRESENTATION:
Counsel:
Appellant:J Basten QC
Respondent:  D Jackson QC and A Fraser
Solicitors:
Appellant:Northern Land Council
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:             C
Judgment ID Number:  Mil20235
Number of pages:  7

IN THE COURT OF APPEAL
IN THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Director of Public Prosecution [2000] NTCA 10
No. AP 6 of 1999
DIRECTOR OF PUBLIC PROSECUTIONS
REFERENCE NO 1 OF 1999

CORAM: MILDREN, THOMAS and BAILEY JJ
REASONS FOR DECISION
(Delivered 11 September 2000)
Mildren J

The Court delivered judgment in this matter on 22 June 2000, dismissing the appeal brought by Y, the person originally charged, from the decision of the Chief Justice. Both Y and the Director of Public Prosecutions have now sought an order for costs.

The initial proceedings were referred to the Supreme Court pursuant to s 162A of the Justices Act, following Y’s acquittal by the Court of Summary Jurisdiction. That section contemplates that the Court of Summary Jurisdiction must reserve a question of law for decision by the Supreme Court if requested by counsel for the Crown upon the written consent of the Director of Public Prosecutions. Section 162A(5) provides that the determination by the Supreme Court of the questions reserved “shall not in any way affect or invalidate any order at or after the conclusion of the hearing”.
Section 162A(6) and (7) provide:
“(6) Any person charged at the hearing or affected by the order shall be entitled to be heard before the Supreme Court upon the determination of the question reserved, and if it appears that no such person proposes to be represented upon the determination, the Director of Public Prosecutions shall instruct counsel to argue the question before the Supreme Court on behalf of the person so charged or affected.
(7) The reasonable costs of legal representation of any person heard before the Supreme Court as provided in this section shall be paid by the Crown.”
The reference to the Supreme Court is heard in the exercise of the Court’s civil jurisdiction and appeals therefrom go to the Court of Appeal rather than to the Court of Criminal Appeal. This is to be contrasted with a similar procedure provided by s 414(2), (3), (4) and (5) of the Criminal Code, where references on a point of law are heard by the Court of Criminal Appeal. Where there is a reference to that Court, no order for costs can be made: see s 424 of the Criminal Code.
However, the Supreme Court has the power to grant costs in the exercise of its civil jurisdiction as does the Court of Appeal and subject to statute, whilst the discretion so to order costs is unfettered, the usual practice is that the Court will order the unsuccessful party to pay the costs of the successful party unless there is good reason to order otherwise.
Y submits that he is entitled to his costs because of the provisions of s 162A(7) of the Justices Act, notwithstanding that the appeal was dismissed. The Director submits that s 162A(7) does not apply to the circumstances of this case and that Y should pay the Director’s costs, there being no good reason to do otherwise.
The Director’s submission is that s 162A(7) applies only where the Director instructs counsel to argue the question on behalf of the person charged or affected pursuant to s 162A(6). The Director’s submission is that the words “as provided in this section” appearing in subsection (7) refer only to representation provided by the Director. I consider that this is too narrow a construction of the subsection. In my opinion the words “as provided in this section” related to the words “any person heard before the Supreme Court”. Consequently subsection (7) applies whether the “person heard” provides for his own legal representation or whether the Director of Public Prosecutions instructs counsel to argue that case on behalf of that person. That construction is fortified by the consideration that subsection (7) is clearly a beneficial provision. It should therefore be given a construction so as to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open: see Khoury (M & S) v Government Insurance Office of New South Wales (1983-4) 165 CLR 622 at 638; (1984) 54 ALR 639 at 649-50 (per Mason, Brennan, Deane and Dawson JJ). This is so, even if there is no ambiguity in the provision: Woodruffe v Northern Territory of Australia, (Court of Appeal of the Northern Territory) unreported [14 July 2000] NTCA 8, at par 38).
The contention of Y is that s 162A(7) should be constructed to include an appeal to this Court. The Director submits that there is nothing in s 162A that requires the Crown to pay for costs arising from an appeal against a determination under s 162A(4). This Court has already held that an appeal lies from such a determination to this Court, vide s 51(1) of the Supreme Court Act: see par [3] of the judgment delivered on 22 June 2000. If the Director’s contention is correct, there are difficulties applying some of the other provisions of s 162A to proceedings before the Court of Appeal, especially ss 162A(4), (5), (9) and (10).
It was submitted on behalf of Y that the Court of Appeal is the Supreme Court, as there is no separately constituted Court of Appeal. I consider that this submission is correct. Section 31(a) of the Interpretation Act provides:
“31. In any Act –
(a)a reference to the Supreme Court shall be read as a reference to the Supreme Court of the Northern Territory established under the Supreme Court Act 1979.”
There is only one court established by the Supreme Court Act 1979, and that is the Supreme Court established by s 10. This Court is part of that court. Section 51 makes this clear:
“(1)Where the jurisdiction of the court [“Court” is defined by s 9(1) to mean the Supreme Court established under the Act] in a proceeding or a part of a proceeding was exercised otherwise than by the Full Court, the Master or a referee, a party to that proceeding may, subject to this Act, appeal to the court from a judgment given in that proceeding or part, as the case may be.
(2)The Court, when exercising its appellate jurisdiction under subsection (1), may be known as the Court of Appeal of the Northern Territory of Australia.”
As Mr Levy (for Y) points out in his written submission, the Court of Appeal is not separately constituted; nor does it have judges appointed separately to it. It is the Supreme Court by another name. Thus, the expression “Supreme Court” in ss 162A(7) would prima facie include the Supreme Court exercising its appellate jurisdiction.
The question then is whether there is anything to displace this prima facie meaning as the true intent of the legislature. On the one hand, as Miss Fraser points out in her written submissions, there is nothing specifically in s 162A dealing with appeals. But let us suppose that the Chief Justice had decided the questions adversely to the Director and the Director had appealed successfully to this Court. It would be difficult to suppose that in those circumstances s 162A(6) did not apply and that the Director would be entitled to his costs. The purpose of s 162A(6) is to ensure there is a contradictor, so that the Court has the fullest argument on both sides about a question of law which will usually be one of considerable public importance. It is, as was observed in Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305, “a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy”. Nevertheless, as s 167A recognises, the accused has an interest in the outcome. If the question is answered unfavourably to him, the full benefit of his acquittal is tarnished. Hence the requirement in s 162A(9) forbidding publication of the name or identity of Y in the proceedings before the Supreme Court.
These considerations lead me to conclude that the words “Supreme Court” wherever appearing in s 162A should be read as including the Court of Appeal wherever necessary, in order to give the fullest effect to the provisions of that section. The result is that the prima facie meaning to be given to s 162A(7) should prevail and that, therefore, Y is entitled to have his costs of the appeal paid for by the Crown. It is doubtful whether the Court needs to make any order for costs in these circumstances, as one would expect the Crown to abide by this Court’s indication without any further order, but if the need arises, I would be prepared to so order. The application by the Director should therefore be dismissed.
THOMAS J
I have read the draft judgment of Mildren J on the application for costs made by both Y and the Director of Public Prosecutions.
I agree with the reasons for decision of Mildren J and with his conclusion. I have nothing to add.

BAILEY J

I have had the advantage of reading in draft the reasons for decision of Mildren J. For the reasons given by His Honour, I agree that the application for costs by the Director should be dismissed and that Y is entitled to have his costs of the appeal paid for by the Crown notwithstanding that Y was unsuccessful in his appeal.

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