Director of Public Prosecutions (NSW) v Roslyndale Shipping Pty Ltd

[2003] NSWCCA 356

Reported Decision: 59 NSWLR 210
131 LGERA 397

New South Wales

Court of Criminal Appeal

CITATION:	DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROSLYNDALE SHIPPING PTY LTD [2003] NSWCCA 356
HEARING DATE(S):	23 October 2003
JUDGMENT DATE:	3 December 2003
JUDGMENT OF:	Spigelman CJ at 1; Studdert J at 60; Hulme J at 61
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	ENVIRONMENTAL LAW - sentence - strict liability offence - where guilty plea - discretion to dismiss a charge without proceeding to conviction - COSTS - jurisdiction of Court of Criminal Appeal to hear appeal from trial judge's refusal to order costs in summary jurisdiction of Land and Environment Court - where statute permitted appeal from "any order for the payment" of costs - meaning of "order".
LEGISLATION CITED:	Coal Mines Regulation Act 1982 s153 Crimes Legislation Amendment (Sentencing) Act 1999 Sch 4 Crimes (Sentencing Procedure) Act 1999 s10 Criminal Appeal Act 1912 ss2, 5AA, 5AB, 5AC, 5AE, 5D Criminal Appeal (Crimes) Amendment Act 1979 Sch 1 Justices Act 1902 s104 Land and Environment Court Act 1979 s52 Marine Pollution Act 1987 s8 Miscellaneous Acts (Coal Mines Regulation) Repeal and Amendment Act 1982 Sch 2 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Sch 2 Supreme Court (Summary Jurisdiction) Act 1967 s14
CASES CITED:	Borough of Glebe v Lukey (Australian Gaslight Co) (1904) 1 CLR 158 Boulter v Kent Justices [1897] AC 556 Davies v Ryan (1933) 50 CLR 379 Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 Gammon (Hong Kong) Limited v Attorney General of Hong Kong [1985] AC 1 Grayndler v Cunich (1934) 62 CLR 573 He Kaw Teh v The Queen (1985) 157 CLR 523 Latoudis v Casey (1990) 170 CLR 534 Lim Chin Aik v The Queen [1963] AC 160 Morrison v Peacock (2000) 50 NSWLR 178 Morrison v Peacock (2002) 210 CLR 274 Morrison v Peacock and Roslyndale Shipping Co Pty Ltd [1999] NSWLEC 182 Palmer v Haddad [2000] NSWSC 545 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Blakeley; Ex parte The Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 R v East Riding of Yorkshire Quarter Sessions; Ex parte Newton [1968] 1 QB 32 Thorneloe v Filipowski (2001) 52 NSWLR 60
PARTIES :	Director of Public Prosecutions (NSW) - Appellant Roslyndale Shipping Pty Ltd - Respondent
FILE NUMBER(S):	CCA 60210/03
COUNSEL:	G E Smith - Appellant E Fullerton SC / G J Nell - Respondent
SOLICITORS:	C K Smith - Appellant D James - Respondent

LOWER COURTJURISDICTION:	Land and Environment Court
LOWER COURT FILE NUMBER(S):	98/50007A
LOWER COURT JUDICIAL OFFICER :	Pearlman J

60210/03

SPIGELMAN CJ
STUDDERT J
HULME J

Wednesday 3 December 2003

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROSLYNDALE SHIPPING PTY LTD

FACTS

On 1 December 1996, the ship Sitka II discharged 15 litres of oil, of which five litres flowed into the lagoon at Lord Howe Island. The Respondent pleaded guilty to an offence under the Marine Pollution Act 1987. Prior to the plea, substantial costs were incurred in earlier proceedings to determine whether or not the Respondent and the captain of the ship could avail themselves of a statutory defence to the prosecution, culminating in Morrison v Peacock (2002) 210 CLR 274. Sitting in the summary jurisdiction of the Land and Environment Court, Pearlman J directed that the charge be dismissed without proceeding to conviction. Her Honour held that the offence was minor and that neither of the defendants could have done anything to avert the event that occurred. Her Honour also refused to make an order as to costs. The Director of Public Prosecutions appealed, submitting that a conviction ought to have been recorded and a fine imposed, and that it should have received an order for costs. The Respondent challenged the jurisdiction of the Court to hear an appeal from a decision to refuse to make a costs order.

HELD (per Spigelman CJ, Studdert and Hulme JJ agreeing)

A. Dismissal of the Charge
A direction that a charge be dismissed without proceeding to conviction pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999 was within the permissible range of the exercise of her Honour’s sentencing discretion. Although such an order will rarely be appropriate for a strict liability offence of this character, it was open for her Honour to conclude that there was no visible warning of a character sufficient to put the Respondent on notice of a likely equipment failure. [12], [21], [23]

Thorneloe v Filipowski (2001) 52 NSWLR 60 applied.

B. Costs
The Court of Criminal Appeal does not have jurisdiction, pursuant to s2(h) of the Criminal Appeal Act 1912, to hear an appeal from a refusal by the Land and Environment Court to award costs in a criminal case dealt with in its summary jurisdiction. The statutory reference to “any order for the payment of” costs does not permit an appeal from such a refusal. [57], [58]

Palmer v Haddad [2000] NSWSC 545 distinguished.

When considering whether the word “order” will encompass a failure to make an order, the statutory context in which the term is used will always be of significance. Although the natural and ordinary meaning of the word does not encompass a refusal to make an order, it may have a wider meaning in particular contexts. [32], [33]-[35]

Boulter v Kent Justices [1897] AC 556; R v Blakeley; Ex parte The Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54, R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 referred to.

ORDERS
Appeal dismissed with costs.

60210/03

SPIGELMAN CJ
STUDDERT J
HULME J

Wednesday 3 December 2003

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v ROSLYNDALE SHIPPING PTY LTD

Judgment

1 SPIGELMAN CJ: In this matter the Director of Public Prosecutions appeals from a judgment of Pearlman J sitting in the summary jurisdiction of the Land and Environment Court. The Respondent pleaded guilty to an offence under s8(1) of the Marine Pollution Act 1987 (“the Act”). Two issues arise. First, her Honour’s decision to direct that the charge be dismissed without proceeding to conviction, pursuant to s10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Secondly, her Honour’s refusal to make an order as to costs. The Appellant submits that a conviction ought to have been recorded and a fine imposed. The Appellant further submits that it should have received an order for costs.

2 The background facts can be simply stated. On 1 December 1996 a discharge of 15 litres of oil occurred on the ship Sitka II, of which five litres flowed into the waters of the lagoon at Lord Howe Island. The master of the ship which the Respondent owned, Captain Harold Anthony Peacock, also pleaded guilty to an offence under s8(1) of the Act. The sentence and order in relation to Captain Peacock are not the subject of an appeal.

3 The bulk of the costs which are in issue in the second matter before the Court were incurred in the course of determining whether or not the Respondent and the Captain had a defence to the prosecution under s8(2)(b) of the Act on the basis that the discharge of oil occurred “in consequence of damage … to the ship or its equipment”.

4 In earlier proceedings, Pearlman J had held that the Captain and the Respondent were entitled to rely on the statutory defence on the basis that wear and tear was “damage” within the meaning of this provision (Morrison v Peacock and Roslyndale Shipping Co Pty Ltd [1999] NSWLEC 182). Her Honour submitted certain questions to this Court, pursuant to s5AE of the Criminal Appeal Act 1912, which this Court answered in a manner that upheld her Honour’s judgment (Morrison v Peacock (2000) 50 NSWLR 178). On appeal to the High Court, a reformulated question was answered in such a way that had the effect of disentitling the Respondent from relying on the statutory defence (Morrison v Peacock (2002) 210 CLR 274).

5 With reference to s8 of the Act, the High Court answered the question in the following way:

“In that section, ‘damage’ means a sudden change in the condition of the ship or its equipment that was the instantaneous consequence of some event, whether the event was external or internal to the ship or its equipment.”

6 The High Court concluded (at [3]) that the word “damage” did not cover the rupture of the ship’s hose. As a result of this judgment, the Appellant and the Captain pleaded guilty to the offence upon the remittal of the proceedings to the Land and Environment Court.

The Application of s10

7 Her Honour set out the facts in her judgment on sentence in the following way:

“[11] It is not necessary for me to traverse the facts in detail. They have been traversed seriatim as the hearings have progressed. It is only necessary for me to say this about the facts. On 1 December 1996 the Sitka II was tied up to the jetty at Lord Howe Island. It was unloading a cargo of road base bags and, for that purpose, it was utilising a crane that was situated on the ship. The crane was standing on a plinth and a hydraulic hose fitted to the crane ruptured causing hydraulic oil to discharge under pressure. An amount of 15 litres of oil escaped. Most of that discharged onto the deck of the ship but about five litres of oil escaped over the ship’s side into the water. The first mate shut down the hydraulic pump, and the authorities were notified. A clean-up operation, under the auspices of the Marine Administration Board at Lord Howe Island, was carried out and the five litres of spill was cleaned up in approximately two hours.
[12] It was necessary for me to determine in the proceedings how the damage occurred. In par 26 of my judgment I made the following finding,
‘26 Mr Williamson’s opinion was that the hose failed because of abrasion and chafing at the base of the steel sleeve in the crane column near the point where the crane sat at the top of the plinth. In the course of his investigation (which took place some time after the incident) Mr Williamson was able to observe the crane in a dismantled state. He noted that the base of the steel sleeve was very heavily corroded and that the radius was very rough. At the base of the sleeve, according to Mr Williamson, the column of hoses was able to turn in excess of 400 degrees, which resulted in a sawing motion of all the hoses at the point where the sleeve was corroded and rough. The abrasion and chafing could be seen on the eight hoses at that point when they were inspected after having been removed from the crane casing.’
One of those hoses ruptured and oil escaped.”

8 It is also pertinent to note the succeeding paragraph from her Honour’s original judgment which referred to evidence, which she accepted, that abrasion and chafing did occur at a point which was visible but that that was not the point at which the rupture occurred. In par [27] of her original judgment her Honour had said:

“[27] That point was not the only place where the hoses appeared to have suffered abrasion and chafing. Mr Williamson thought that there was abrasion and chafing at the point where the hoses entered the plinth though the forward access hole. But, in his opinion, that was not the place at which the hose had ruptured; rather the hose ruptured further up, at the base of the sleeve in the crane casing.”

9 Her Honour decided that s10 of the Crimes (Sentencing Procedure) Act 1999 should be applied to the circumstances of the present case. She indicated that she did not consider the discharge of oil into the lagoon to be a trivial matter, but that this offence was “minor”, because the amount which was actually discharged into the water was only five litres and the discharge was cleaned up within two hours. Her Honour noted that there was no evidence of environmental harm of any sort.

10 Her Honour found a number of extenuating circumstances, in the course of which she referred back to her findings of primary fact in the original proceedings:

“[17] In pars 21 to 24 of my judgment I made findings in some detail as to how the crane came to be on the deck of the ship. In par 34 I summarised those findings firstly as follows:
’34 … Roslyndale engaged experts in Australia to carry out work on the crane, experts in Auckland to assemble and fit it, and an expert from Bureau Veritas to test its operation, and Captain Peacock knew it had done so. It was reasonable in those circumstances for both the defendants to believe that the crane and its components would operate without mishap.’
[18] Secondly, I noted that the crane was installed only six months prior to the incident, that it had been used during that period without damage and that there was evidence to show that it had been used for a period of approximately 60.5 hours without mishap.
[19] Furthermore, as I found, visual inspection of the hoses at the point where the hose ruptured was physically possible by using a torch and by peering up into the plinth. But I accepted Mr Williamson’s opinion that it was not certain to reveal the abrasion and chafing of the one hose which led to the actual rupture because eight hoses were located in that position.
[20] In those circumstances I made, as Mr Gee QC, appearing for the defendants, correctly pointed out, a positive finding of fact that the defendants not only had no actual knowledge that the hose would probably rupture when the crane was being used, but they had reason to believe that no such thing would occur. It seems to me that those circumstances amount to a case where there was, unlike many of the cases that are decided in this Court, no matters to indicate that the events which actually happened were likely to occur.
[21] I do not ignore Mr Hill’s submission that there was a warning sign. I found, in par 27 of my judgment, that there was another point at which abrasion and chafing could be seen. That was the point where the hoses entered the plinth through the forward access hole. That was not the place where the hose ruptured. Mr Hill strenuously urged the Court to find that there was a warning sign and that the defendants should have been under notice of abrasion and chafing and should have examined and taken steps to check the rest of the crane mechanism.
[22] That matter was also raised at the hearing and I made findings about it in par 29 of my judgment as follows:
‘29 The first matter raised by Mr Burge was that the access hole in the plinth through which the hoses passed was rough and uneven, and was likely to cause abrasion and chafing, which Mr Williamson found did in fact occur at that point. Hence, in Mr Burge’s opinion, the fact that a hose failed was foreseeable and preventable. This evidence does not coincide with Mr Williamson’s opinion that the hose ruptured at the point where the hoses entered the steel sleeve of the crane casing, and, since I accept Mr Williamson’s version, it does not displace a conclusion that there was no “intentional damage”.’
[23] I take the same view in connection with the s10 applications that are made today. That was not a warning sign of the event which actually occurred.”

11 Her Honour expressed her conclusion in par [27]:

“[27] In this case I take the view that neither of the defendants could have done anything to avert the event that occurred. That event was the rupture of the hose at the base where the steel casing entered the plinth. This was not a case of want of precaution or other omissions on the part of either the master or the owner. They did what had to be done in relation to the installation and operation of the crane. They could not have been under any notion that it would not operate as it was expected to do.”

12 Her Honour’s conclusion was made in the exercise of a broad discretion with which this Court will only interfere on well-known and restricted grounds. In my opinion, if her Honour’s conclusion that “neither of the defendants could have done anything to avert the event that occurred” was open to her Honour, then the conclusion to which she came on the application of s10 was within the range of permissible sentences.

13 As I said in Thorneloe v Filipowski (2001) 52 NSWLR 60 at [171]:

“Even in the case of an offence of strict liability, no public purpose is served by recording a conviction or imposing a penalty in circumstances where the relevant accused could not, as a matter of practical reality, have done anything to ensure that the offence or, in the case of a result offence, the adverse consequences of the conduct, did not occur.”

14 I relied on certain observations concerning strict liability offences in Gammon (Hong Kong) Limited v Attorney General of Hong Kong [1985] AC 1 at 14; Lim Chin Aik v The Queen [1963] AC 160 at 174; He Kaw Teh v The Queen (1985) 157 CLR 523 at 567; Federal Steam Navigation Co Ltd v Department of Trade and Industry [1974] 1 WLR 505 at 526.

15 I concluded in Thorneloe v Filipowski at [178]:

“It is, in my opinion, relevant to the exercise of the discretion under s10 of the Sentencing Act , in the context of the strict liability offence, to consider what the applicant for the benefit of s10 could have done to avert the event that has occurred. While questions of weight are always for the sentencing judge, it is unlikely that this consideration will be given determinative weight in the case of a serious offence or a repeat offender. Where, as here, there was a comparatively minor pollution by a first offender, this consideration is entitled to weight.”

16 But for one consideration, this approach would support her Honour’s findings. That consideration is the treatment her Honour gave to the fact that abrasion and chafing was actually observable on the hoses at the point where they entered the plinth. Her Honour emphasised that that was not the place where the hose ruptured. She again rejected the submission, that had also been advanced in the first proceedings, to the effect that the Respondent was disentitled from relying upon the statutory defence on the basis that it had acted recklessly. (See Morrison v Peacock (2000) 50 NSWLR 178 at [78]-[87].) Of course, the conclusion that the Respondent had not acted “recklessly” was quite different from the conclusion to which her Honour came on the sentence hearing that there was nothing the Respondent could have done to avert risk of discharge.

17 Her Honour expressly rejected the submission made to her that the abrasion and chafing which was visible was a warning sign, on the basis that such abrasion and chafing “was not a warning sign of the event which actually occurred”. Her Honour’s reasoning, which I have set out in full above, could be understood to suggest that the visible abrasion and chafing was irrelevant to the issue.

18 This matter is related to her Honour’s repetition, in the judgment now under appeal, of her Honour’s finding in the first trial which she described in the present judgment in the following manner:

“[18] … I noted that the crane was installed only six months prior to the incident, that it had been used during that period without damage and that there was evidence to show that it had been used for a period of approximately 60.5 hours without mishaps.”

19 On the appeal in the first proceedings, I referred to this finding, in the context of dealing with the submission about whether the Respondent had acted “recklessly”, in the following way:

“[85] Her Honour also referred to the fact that the crane had been installed for only six months and during that period had operated without failure. It may be that the longer the operation of the crane the more likely some form of failure by reason of abrasion and chafing should have been understood to be likely to occur. Nevertheless her Honour was entitled, in my opinion, to find that a period of only six months was not such as to give rise to concern in this respect.”

20 This is a matter that has given me some concern. If her Honour should be understood to have treated the visible, external abrasion and chafing as an irrelevant consideration then, in my opinion, she erred in a manner entitling this Court to intervene. The fact that such abrasion and chafing was observable at one point of the hosing, after only 60 hours of operation, may well have been some form of notice putting the owner on inquiry that further inspection of the hose, at that part of the casing that was not easily observable, was required. In the event, I am not satisfied that her Honour regarded these matters as entirely irrelevant.

21 As I understand her Honour’s reasoning, she came to the conclusion that, whilst the visible abrasion and chafing was relevant, it was not of a character that gave rise to the degree of vigilance that a strict liability offence can be seen to invoke. Although it may have been some kind of indication, it was not a “warning” of a character sufficient, in all the circumstances, to put the Respondent on notice. On this basis I am not satisfied that her Honour committed any error in this regard of a character justifying the intervention of this Court.

22 The Appellant’s primary submission on this aspect of the appeal was that the sentence was manifestly inadequate. Her Honour considered a range of relevant considerations, including the small amount of actual discharge, the absence of any actual environmental harm, the immediate response of the Respondent in assisting in the clean-up process, the good record of the Respondent and character evidence indicating its support of environmental activities on Lord Howe Island.

23 For the reasons I outlined in Thorneloe v Filipowski, there is a strong body of authority that s10 is only rarely appropriate in the case of an offence of this character (see at [165]-[169]). Nevertheless, it is a permissible sentencing option, even in the case of an actual discharge of oil into waters. In the circumstances of this case, a s10 order was within the permissible range of the exercise of the sentencing discretion by her Honour.

24 In my opinion this part of the appeal should be rejected.

The Issue of Costs

25 Her Honour’s ultimate conclusion on the issue of costs was as follows:

“[37] Mr Hill spoke several times about ‘reality’. I think that the ‘reality’ in this case is that the defendants made out their defence. They made it out in circumstances where the High Court has ultimately said that it could not stand because it was based on a wrong interpretation of the law. But the defendants did not come to this Court with a defence based on any wild or unarguable interpretation of the law. There were two other decisions in this Court which came to the same conclusion that I did. Ultimately that conclusion was supported by three judges of the Court of Criminal Appeal. It was wrong. But, even though the defence could not be sustained on a correct interpretation of the law, it is appropriate that those circumstances be taken into account. I think this is a proper case where I should make no order as to costs.”

26 The Appellant contends that her Honour erred in failing to order costs and appeals against that decision relying, primarily, on the decision in Latoudis v Casey (1990) 170 CLR 534.

27 The Respondent has raised a preliminary issue challenging the jurisdiction of this Court to consider the appeal with respect to her Honour’s decision not to award costs. At the relevant time, s2 of the Criminal Appeal Act 1912 included as part of the definition of “sentence” the following:

“(h) Any order for the payment of costs made by the court of trial in respect of a person under section 14 of the Supreme Court (Summary Jurisdiction) Act 1967 , section 52 of the Land and Environment Court Act 1979 or section 153 of the Coal Mines Regulation Act 1982 .”

28 Ms E Fullerton SC, who appeared for the Respondent, submitted that her Honour’s order, which was in the following form: “I make no order as to costs”, was not capable of being accommodated by the words of s2(h), namely, “any order for the payment of costs”.

29 Mr G Smith, who appeared for the Appellant, relied on the reasoning of Simpson J in Palmer v Haddad [2000] NSWSC 545 which concerned s104(2)(c) of the Justices Act and which permitted appeals against “orders for costs made by magistrates in summary proceedings”. In that case it was also argued that the language “an order for costs” could not accommodate a refusal to make a costs order.

30 Simpson J rejected the submission. Her Honour said at [11]:

“I am not persuaded that subparagraph (c) should not be interpreted to encompass ‘an order in relation to costs’, including an order refusing an application for costs, an interpretation which would be wide enough to accommodate Ms Palmer’s appeal. Although I am conscious that such a construction may be seen to put some strain on the language used by the legislature, there are good reasons why it nevertheless should be adopted. Firstly, as I have pointed out above, the Justices Act is primarily focussed upon criminal proceedings, and amendments over the years have not really accommodated the expanding civil jurisdiction of the Local Court. Notwithstanding that, civil proceedings do come within its ambit, and the language used has to be given a sensible and practical construction appropriate to those proceedings. More fundamentally, to interpret the paragraph as narrowly as the respondent contends would have the result of attributing to the legislature of an intention to create unbalanced rights for no apparent principled reason. An informant against whom an order for costs is made would have a right of appeal, but an informant who unsuccessfully sought a costs order would not. Such a capricious intention should not be attributable to the legislature unless the clear words of the legislation so demand. In my view they do not.”

31 Ms Fullerton submitted that this reasoning could not apply to the words of s2(h) because it fails to give any meaning to the word “payment” which appears in s2(h), but which did not appear in s104(2)(c) of the Justices Act considered by Simpson J. Ms Fullerton further submitted that the use of the word “payment” meant that Parliament intended to limit the jurisdiction of this Court to a challenge to the quantum of a costs order, not to whether an order is made at all.

32 The particular reasoning which Simpson J adopted with respect to s104(2)(c) of the Justices Act is not directly applicable to s2(h) of the Criminal Appeal Act, particularly by reason of the inclusion of the word “payment”. In these matters, the statutory context is of considerable significance.

33 In its natural and ordinary meaning, the word “order” would not encompass a refusal to make an order. As Fullagar J said in R v Blakeley; Ex parte The Association of Architects Engineers Surveyors and Draughtsmen of Australia (1950) 82 CLR 54 at 90:

“Here the Commissioner has not made any award or order: he has simply refused to make an award or order. In the absence of some special definition … or some special context the word ‘order’ does not include a refusal to adjudicate.”

34 His Honour referred to Boulter v Kent Justices [1897] AC 556 at 567 where Lord Herschell said:

“When the licensing justices grant an application for a licence they sign a certificate by means of which the licence is obtained. But where they refuse the application they make no order at all. They simply do not grant the licence applied for. An order is never drawn up, and to speak of the act of the justices in not granting a licence as an order would be, I think, a misuse of the term.”

(See also Grayndler v Cunich (1934) 62 CLR 573 esp at 599. Compare the case in which the statutory formulation is more expansive, e.g. R v East Riding of Yorkshire Quarter Sessions; Ex parte Newton [1968] 1 QB 32 at 52-53; Davies v Ryan (1933) 50 CLR 379 at 382-383.)

35 Nevertheless, the word “order” may, in its context as Fullagar J acknowledged, have a wider meaning, extending to a refusal to make an order. As Bridge J said in R v Recorder of Oxford; Ex parte Brasenose College [1970] 1 QB 109 at 114:

“The word ‘order’ in relation to legal proceedings in itself is ambiguous; clearly it may mean – perhaps a linguistic purist would say that its most accurate connotation was to indicate – an order requiring an affirmative course of action to be taken in pursuance of the order, but it is equally clear that the word may have a much wider meaning covering in effect all decisions of courts … Which of the two meanings is appropriate must of course always depend on the context …”

36 Paragraph 2(h) must, accordingly, be considered in its entire context. The definition of “sentence” in s2, at the relevant time, was:

“ Sentence means:
(a) any order made by the court of trial on convicting a person of an offence, including:
(i) any sentence of imprisonment (including any sentence of imprisonment the subject of a periodic detention order or home detention order and any sentence of imprisonment whose execution is suspended), and
(ii) any community service order, and
(iii) any good behaviour bond, and
(iv) any fine,
imposed under Part 2 of the Crimes (Sentencing Procedure) Act 1999 , or
(b) any order made by the court of trial in respect of a person under section 10 of the Crimes (Sentencing Procedure) Act 1999 on finding the person guilty of an offence, or
(c) any order made by the court of trial in respect of a person under section 11, 12 or 17A of the Crimes (Sentencing Procedure) Act 1999 on convicting the person of an offence, or
(d) any order made by the court of trial imposing a limiting term of imprisonment on a person under section 23(1) of the Mental Health (Criminal Procedure) Act 1990 , and any other order or penalty made or imposed by the court of trial in respect of the person under section 23(2) of that Act, or
(e) any order made by the court of trial in respect of a person under section 39 of the Mental Health (Criminal Procedure) Act 1990 , or
(f) any direction for compensation made by the court of trial in respect of a person under sections 71 or 77B of the Victims Compensation Act 1996 , or
(g) any order for restitution made by the court of trial in respect of a person under section 126 of the Criminal Procedure Act 1986 , or
(h) any order for payment of costs made by the court of trial in respect of a person under section 14 of the Supreme Court (Summary Jurisdiction) Act 1967 , section 52 of the Land and Environment Court Act 1979 or section 153 of the Coal Mines Regulation Act 1982 ,
and the power of the Court of Criminal Appeal to pass any such sentence includes power to make any such order or direction.”

37 Section 52 of the Land and Environment Court Act 1979, referred to in s2(h), and which is the power exercised in the present case, is in the following terms:

“52(1) Where a Judge:
(a) convicts any person of an offence punishable in the summary jurisdiction of the Court,
(b) makes an order dismissing the charge for any such offence, or
(c) makes an order under section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of any such offence.
the Judge may, in and by the conviction or order, order the defendant, in the case of a conviction or order referred to in paragraph (a) or (c), to pay to the prosecutor, or, in the case of any order referred to in paragraph (b), order the prosecutor to pay to the defendant, costs of such amount as are specified in the conviction or order or, if the conviction or order so directs, as may be determined under subsection (2).
(2) The costs payable by a prosecutor or defendant in accordance with a direction under this section are to be determined:
(a) by agreement between the prosecutor and defendant, or
(b) if no such agreement can be reached, in accordance with the regulations.”

38 Section 14 of the Supreme Court (Summary Jurisdiction) Act 1967, also referred to in s2(h), and which has since been repealed, was in the same terms. Indeed, it was the model for s52.

39 Section 153 of the Coal Mines Regulation Act 1982, also referred to in s2(h), confers a general discretion to award costs on a Court of Coal Mines Regulation conducting a statutory investigation.

40 The legislative history of s2(h) is of assistance. As originally enacted, the Criminal Appeal Act 1912 included the following definition of “sentence” in s2:

“’Sentence’ includes any order made by the court of trial on conviction with reference to the person convicted, or his property, and any recommendation or order for deportation in the case of a person convicted; and the power of the Court of Criminal Appeal to pass any sentence includes a power to make any such order or recommendation.”

41 This definition was not amended until 1979, with the passage of the Criminal Appeal (Crimes) Amendment Act 1979. This was the same Act that inserted s5AA into the Criminal Appeal Act. The amending Act of 1979 divided s2 into two subsections. The definition of “sentence” in s2(1)was amended to read as follows:

“’Sentence’ includes any order made by the court of trial on conviction with reference to the person convicted, or his property, and any recommendation or order for deportation in the case of a person convicted; and also includes any order to pay costs made by the court of trial under section 14 of the Supreme Court (Summary Jurisdiction) Act, 1967 and the power of the Court of Criminal Appeal to pass any sentence includes a power to make any such order or recommendation.” [Emphasis added to show amendment.]

42 A new subsection 2(2) was inserted by Sch 1(1)(c) of the Criminal Appeal (Crimes) Amendment Act 1979, deeming various decisions, dismissals or orders to be sentences passed or pronounced on conviction, as follows:

“(2) Without limiting the definition of ‘Sentence’ in subsection (1), for the purposes only of this Act, unless the context or subject-matter otherwise requires or indicates-
(a) an order made under section 556A (1) of the Crimes Act, 1900, with respect to a person tried for an offence; or
(b) a decision to defer passing sentence referred to in section 558 (1) of that Act or an order made under that subsection upon or with respect to a person tried for an offence; or
(c) any other decision or order of any kind whatsoever, being a decision or order to defer passing sentence on a person tried for an offence, to remand such a person in custody or to remand such a person and to release him upon his compliance with any condition or otherwise, whether or not in any such case the person has been convicted of an offence,
shall be deemed to be a sentence passed or pronounced upon the conviction of that person for the offence for which he was tried and that person shall be deemed to have been convicted of that offence.”

43 Section 5AA(1) was inserted by Sch 1(2) as follows:

“5AA. (1) A person-
(a) convicted of an offence; or
(b) against whom an order to pay any costs is made,
by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction ( including any sentence imposed ) or order.” [Emphasis added.]

44 Both the amendment to s2(1) introducing a reference to the Land and Environment Court, and s5AB, dealing with appeals in criminal cases by the Land and Environment Court in its summary jurisdiction, were introduced by the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979, Sch 2, Part 1.

45 By Sch 2(1) of that Act, s2(1) was amended to read as follows:

“’Sentence’ includes any order made by the court of trial on conviction with reference to the person convicted, or his property, and any recommendation or order for deportation in the case of a person convicted; and also includes any order to pay costs made by the court of trial under section 14 of the Supreme Court (Summary Jurisdiction) Act, 1967, or section 52 of the Land and Environment Court Act, 1979 and the power of the Court of Criminal Appeal to pass any sentence includes a power to make any such order or recommendation.” [Emphasis added to show amendment]

46 Section 5AB provides:

“5AB Section 5AA applies to and in respect of a person:
(a) convicted of an offence; or
(b) against whom an order to pay costs is made,
by the Land and Environment Court in its summary jurisdiction in the same way as it applies to a person referred to in section 5AA(1), and, for the purposes of this section, a reference in section 5AA to the Supreme Court shall be read and construed as a reference to the Land and Environment Court.”

47 The reference to the Coal Mines Regulation Act 1982 in s2(1) was inserted by the Miscellaneous Acts (Coal Mines Regulation) Repeal and Amendment Act 1982, which by Sch 2(1) deleted from the definition of “sentence” the words “or section 52 of the Land and Environment Court Act, 1979” and inserted instead “section 52 of the Land and Environment Court Act, 1979, or section 152 of the Coal Mines Regulation Act, 1982”. That Act also inserted s5AC which is the same terms as s5AB, save that references to the Land and Environment Court are replaced by references to the Court of Coal Mines Regulation.

48 The definition of “sentence” in s2(1) of the Criminal Appeal Act was repealed and substituted by the Crimes Legislation Amendment (Sentencing) Act 1999, Sch 4.12[1], commencing on 3 April 2000. Subsection 2(2) was omitted. (It has been replaced by the section in its present form). The new definition of “sentence” included s2(h) as set out above.

49 The legislative history thus illustrates that at the same time as each express provision for a right of appeal against an adverse costs order was introduced to the Criminal Appeal Act, the definition of “sentence” was extended to encompass an order for the payment of costs.

50 The effect of s5AA is to expressly confer upon a person against whom an order for costs has been made, a right to appeal against the order for costs. Furthermore, s5AA, the dominant provision, does so in terms which distinguishes such an “order” from a “sentence”. Each of ss5AA, 5AB and 5AC distinguishes between a reference to a conviction in par (a) and an order to pay costs in par (b). Furthermore as the italicised part of s5AA, as quoted in par [43], above shows, there is a distinction between “a sentence imposed”, referred to in parentheses as included in the concept of “conviction”, and an “order”, which is clearly a reference back to s5AA(1)(b), i.e. the “order to pay any costs”.

51 Section 5AA is adopted in other provisions, relevantly s5AB in the case of the Land and Environment Court. (Henceforth, it is convenient to refer only to s5AA.) The section expressly confers a right of appeal upon a person against whom an order to pay costs is made. No express reference is made in this section to a right of appeal where an order for costs is sought and refused.

52 Simultaneously, in each case, the definition of sentence was amended: originally in the form “any order to pay costs” and, subsequently, in the form “any order for the payment of costs”. It is not clear what, if any, work was to be done by the change in the definition of sentence. The drafting is, to say the least, convoluted.

53 The general principle of the law of statutory interpretation is that all words must be given meaning and effect. (See, e.g. Borough of Glebe v Lukey (Australian Gaslight Co) (1904) 1 CLR 158 at 175-176; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].) There is, so far as I have been able to determine, only one way to give effect to all the words of s5AA and the simultaneously expanded definition of “sentence”. The word “or” between pars (a) and (b) of s5AA(1) must be given a strict disjunctive reading.

54 On this basis, a “person” cannot be both a “convicted” person within (a) and a person “against whom an order to pay costs” has been made within (b). Accordingly, a convicted person against whom an order to pay costs is made, relevantly under s52(1) of the Land and Environment Court Act 1979, can appeal against the latter order because of the words in parentheses in s5AA and s5AB (“including any sentence imposed”), picking up and applying the extended definition of sentence. However, a person who has had the benefit of an order under s10 of the Crimes (Sentencing Procedure) Act, and is therefore not convicted, and against whom an order to pay costs has been made under s52, can appeal under the second limb of s5AA. This strict disjunctive approach gives separate effect to the operative words in s5AA(1) permitting an appeal both against a “conviction” (which includes a “sentence”) and also against an “order”.

55 It may be that this second limb would also encompass an order to pay costs against the prosecution under s52(1), but it is not necessary to decide whether the word “person” in s5AA extends to the Crown. (The second reading speech indicates that it was not intended to do so: see New South Wales, Parliamentary Debates, Legislative Assembly, 28 March 1979, p3325.) If it does not, it would give the definition of sentence further work to do in s5D of the Criminal Appeal Act, providing for Crown appeals.

56 Section 5AA(1) and s2(h) must be read together. The reference to “payment of costs” in the latter is reinforced by the terminology of the former: “against whom an order to pay any costs is made”. These interrelated references support the Respondent’s contention. A failure to make an order does not fall naturally within the word “payment” nor within the idea of an order being “made” “against” a person.

57 The statutory context supports the conclusion that the natural and ordinary meaning of the word “order”, identified by Fullagar J and quoted above, should be applied. I am unable to interpret the statutory formulation – “any order for the payment” of costs – as a reference to ‘an order in relation to costs’.

58 In my opinion, this Court does not have jurisdiction to hear the appeal on the issue of costs.

59 The appeal should be dismissed with costs.

60 STUDDERT J: I have had the advantage of reading the judgment of Spigelman CJ in draft form. I agree with the order proposed and with the reasons expressed by the Chief Justice.

61 HULME J: I agree with the order proposed by the Chief Justice and, subject to one matter, with His Honour’s reasons.

62 My point of difference arises in respect of some of the remarks made in paragraph [54] of His Honour’s reasons. I am unable to see any reason in the statutory provisions why a person cannot have both attributes of having been convicted and having had an order to pay costs made against him or her.

63 Furthermore, the definition of "sentence" in the Criminal Appeal Act is "unless the context or subject matter otherwise requires or indicates". The presence of the final word "order" and the general principle of statutory interpretation referred to in paragraph [53] above lead me to the view that one should not regard the word "sentence" in section 5AA as including an order to pay costs.

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Last Modified: 12/09/2003