Director of Public Prosecutions (SA) v Condo (No 2)

The Court of Appeal of South Australia heard an appeal by the Director of Public Prosecutions against the decision of the District Court to make an order for costs in favour of the respondent. The matter arose from proceedings under the Criminal Assets Confiscation Act 2005 (SA) where the Director sought to recover criminal property from the respondent. The District Court had determined the appeal against confiscation, but before the case was remitted for the consideration of costs, the respondent died. The Director appealed the District Court's decision to award costs to the deceased respondent, contending that the costs should have been awarded to the Director as the prevailing party.

The primary legal issue before the Court of Appeal was whether the District Court had the discretion to order costs in favour of the deceased respondent under the relevant statutory and rule provisions. The Court considered the interplay between the general rule that costs follow the event, the discretion conferred by section 42 of the District Court Act 1991 (SA) and Rule 101.02(1) of the Rules of Court, and the modification of that discretion by section 227 of the Criminal Assets Confiscation Act 2005 (SA). The Court also examined the relevant case law to understand the application of these provisions in the context of costs awarded to a deceased party in criminal confiscation proceedings.

The Court of Appeal held that the District Court did not have the discretion to award costs to the deceased respondent. The Court found that the statutory provisions and case law did not support the notion that costs could be awarded to a deceased party in the circumstances presented. The Court of Appeal emphasised that the general rule of costs following the event applies to criminal proceedings, and the discretion provided by the statutory and rule provisions was intended to allow for exceptions in civil proceedings, not criminal proceedings. Furthermore, the modification of that discretion by section 227 of the Criminal Assets Confiscation Act 2005 (SA) did not extend to allowing costs to be awarded to a deceased party in the context of criminal confiscation proceedings. Accordingly, the Court of Appeal allowed the appeal and set aside the District Court's order for costs in favour of the deceased respondent.

The Court of Appeal did not make any further orders as to the costs of the appeal, as the issue was determined in favour of the Director of Public Prosecutions. The Court found that the District Court's order for costs was not in accordance with the relevant statutory and rule provisions, and therefore, the order was set aside. The Court did not make any further orders as to the costs of the appeal, as the outcome of the appeal was in favour of the Director of Public Prosecutions.