Director of Public Prosecutions (Cth) v Hunter & Milner (No 2)

The Director of Public Prosecutions for the Commonwealth brought an appeal against the respondents, Hunter and Milner, in respect of convictions under Commonwealth laws. The respondents sought an indemnity certificate under section 15(1) of the Appeal Costs Act 1998 (Vic.), which would allow them to recover costs incurred from the unsuccessful appeal. The case was heard in the Supreme Court of Victoria, which found in favour of the respondents. The Director of Public Prosecutions then appealed to the Court of Appeal of Victoria, which allowed the appeal, and the matter has now come before the High Court of Australia.

The key legal issue before the High Court was whether the respondents were entitled to an indemnity certificate under section 15(1) of the Appeal Costs Act 1998 (Vic.). This provision provides that a party who has been unsuccessful in an appeal may recover costs if the Court of Appeal is of the opinion that they ought to have been granted indemnity. The Court had to consider whether the respondents were entitled to indemnity as a matter of law, and whether the Court of Appeal had exercised its discretion correctly in denying indemnity.

The High Court held that the respondents were not entitled to an indemnity certificate. The Court found that the respondents had not satisfied the criteria for indemnity under section 15(1) of the Appeal Costs Act 1998 (Vic.). The Court held that the respondents had not established that they had a real prospect of success on appeal, and that the Court of Appeal had not erred in its exercise of discretion in denying indemnity. The Court also found that the respondents were not entitled to recover costs from the date of the original conviction, as they had not established that they had been unable to pay the costs of the appeal within a reasonable time.

The final orders of the Court were that the appeal be allowed, the orders of the Court of Appeal be set aside, and the orders of the Supreme Court be reinstated. The respondents were not entitled to an indemnity certificate or to recover costs from the date of the original conviction.