Director of Public Prosecutions v Austin (No 5)

[2023] ACTSC 327

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Austin (No 5)

Citation: 

[2023] ACTSC 327

Hearing Date: 

28 July 2023 and 14 August 2023

Decision Date: 

15 November 2023

Before:

Baker J

Decision: 

(1)     The Director of Public Prosecutions is to pay the applicant’s reasonable legal costs of:

(a)     Appearing at the examination hearing on 15 June 2023;

(b)     Appearing at the hearings of the application for costs on 27 July 2023 and 14 August 2023 and preparing for that application.

(2)     The Director of Public Prosecutions is also to pay 50 percent of the applicant’s reasonable legal costs of preparing for the cross-examination of Mr Bastian at the examination hearing.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE –– jurisdiction of supreme court to award costs in criminal cases – whether statutory authority required – r 6826 of the Court Procedures Rules 2006 (ACT) – exercise of courts discretion to award costs against the Crown – failure to notify court of unavailability of overseas witness when trial allocated hearing date – evidence of prosecution witness given pursuant to examination order – costs awarded.

Legislation Cited: 

Court Procedures Act 2004 (ACT), s 134(m)

Court Procedures Rules 2006 (ACT), rr 4752, 6813, 6813(1), 6822, 6826

Crimes Act 1900 (ACT), ss 54, 60

Magistrates (Summary Proceedings) Act 1975 (Vic), s 97(b)

Cases Cited: 

Gray v Richards (No 2) [2014] HCA 47; 252 CLR 601

Latoudis v Casey [1990] HCA 59; 170 CLR 534; Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72;

R v Bui [2011] ACTSC 102; 5 ACTLR 230

R v Richardson [2016] ACTSC 22; 307 FLR 8

State of New South Wales v Stanley [2007] NSWCA 330

Parties: 

Nathan James Austin (Applicant)

Director of Public Prosecutions

Representation: 

Counsel

M Jones SC (Applicant)

M O’Connell (DPP)

Solicitors

Kamy Saeedi Law (Applicant)

ACT Director of Public Prosecutions

File Number:

SCC 237 of 2022

BAKER J:

Introduction

1․By way of application dated 21 July 2023, the applicant seeks an order that the Director of Public Prosecutions (the Director) pay his costs of and incidental to the examination of the witness, Mr Denis Bastian, on 15 June 2023 (the examination hearing). This application is opposed by the Director.

2․For the reasons outlined below, I am satisfied that it is appropriate for an order for costs to be made in favour of the applicant. The quantum of the costs order will include the applicant’s legal costs of appearing at the examination hearing, the costs of the present application, and 50 percent of the applicant’s legal costs of preparation for the examination hearing.

Background

3․On 21 April 2022, the applicant was charged with six counts of sexual intercourse without consent, contrary to s 54 of the Crimes Act 1900 (ACT), and one charge of an act of indecency without consent, contrary to s 60 of the Crimes Act.

4․The applicant was committed for trial, and the proceedings were listed for case management before McCallum CJ on 11 April 2023. Chief Justice McCallum listed the proceedings for a jury trial on 17 July 2023. Prior to that hearing, the prosecution had been advised that a complaint witness, Mr Bastian, would not be available for the duration of those trial dates. As a result of an apparent oversight, the prosecution did not advise McCallum CJ or the applicant of Mr Bastian’s unavailability.

5․On 24 May 2023, the prosecution sent an email to the applicant’s legal representatives advising that Mr Bastian would be overseas for the duration of the applicant’s trial. The prosecution informed the applicant’s legal representatives that enquiries were being made with the International Crime Cooperation Central Authority (ICCCA) with respect to “advice concerning mutual assistance arrangements for audio visual evidence”.

6․On 25 May 2023, the prosecution sent an email to the applicant’s legal representatives advising that Mr Bastian would be in Croatia for the duration of the trial, but that Mr Bastian was willing to give evidence from Croatia. However, the email continued, as Australia does not have a mutual assistance agreement with Croatia, “a mutual assistance request must be made via the Attorney-General’s Office for the witness to give evidence from there”. The prosecution stated that the ICCCA had advised the prosecution that it would take approximately three to four months to process a request for mutual assistance. The prosecution sought clarification as to whether “Mr Bastian [was] required for cross-examination and/or whether defence consents to the trial date being vacated and a new trial date obtained when the witness is available to give evidence”.

7․On 30 May 2023, the applicant’s legal representative sent an email advising the prosecution that Mr Bastian would be required for cross-examination, and that any application to vacate the trial date would be opposed.

8․On 1 June 2023, the prosecution sent an email to the applicant’s legal representative asking whether the applicant would consent to an application for Mr Bastian’s evidence to be pre-recorded at an examination hearing pursuant to Div 6.10.8 of the Court Procedures Rules 2006 (ACT).

9․On the same day, the applicant’s legal representative sent an email advising the prosecution that there would be no objection to Mr Bastian giving evidence prior to the substantive trial. That email did not make any reference to the costs of that examination.

10․On receipt of this email, the prosecution sent an email advising the Registrar of the Supreme Court that it intended to make an application for Mr Bastian to give evidence otherwise than at trial.

11․On 2 June 2023, the prosecution filed an application in this Court seeking an examination order to permit the taking of evidence from Mr Bastian prior to the trial, pursuant to r 4752 of the Court Procedures Rules (“the examination application”). The grounds on which the examination application was made were as follows:

(1)Denis Bastian is a complaint witness in these proceedings and provides evidence to facts in issue.

(2)Denis Bastian will be overseas from 17 June 2023 and will be absent during the period of the trial.

(3)Consequently, mutual assistance is required for Denis Bastian to give evidence from his location overseas. A mutual assistance agreement can take up to 3 to 4 months to be processed.

(4)Denis Bastian will not be available to give his evidence by audio visual link while he is overseas.

(5)It is in the interests of all involved parties to avoid any potential delay in the commencement of the trial.

12․On 15 June 2023, Loukas-Karlsson J granted the examination application and made an examination orders for an audio-visual recording to be made of the evidence. In ex tempore reasons, her Honour noted that the making of an application for mutual assistance would take three to four months, and that taking the evidence in the form sought by the prosecution would “avoid an application to vacate the trial date”.

13․On the same day, Her Honour proceeded to take Mr Bastian’s evidence, which was video and audio recorded.

14․After Loukas-Karlsson J made the examination order, but prior to Mr Bastian giving evidence, Ms Jones SC, who appeared for the applicant, indicated that the applicant would be seeking costs for the examination hearing. Loukas-Karlsson J reserved the decision on costs, and parties consented to the application being dealt with at trial.

15․The applicant’s trial proceeded with a jury of twelve presided over by myself, which commenced on 17 July 2023. On 20 July 2023 date, the prosecution played Mr Bastian’s pre-recorded evidence. On 27 July 2023, the jury returned verdicts of not guilty on each count on the indictment.

16․The applicant filed the examination application in Court with leave on 21 July 2023. The application was partly heard on 27 July 2023, whilst the jury was deliberating, but was then adjourned to 14 August 2023 on the application of counsel for the Director. Written submissions were provided to the Court by Ms O’Connell on behalf of the Director, and by Ms Jones SC, on behalf of the applicant, on 27 July 2023. On 14 August 2023, affidavit evidence setting out the background to the application was read by both parties. On that occasion, Ms Jones SC was not available and the applicant was represented by Mr Kukulies-Smith, solicitor. The Court has been assisted by the helpful written and oral submissions made on behalf of both parties.

Legislation

17․Rule 6813 of the Court Procedures Rules empowers the court to make orders for taking evidence otherwise than at trial:

6813 Order for taking evidence otherwise than at trial

(1)In any civil or criminal proceeding in the court, the court may, on the application of a party to the proceeding, make an order—

(a)for the examination of a person on oath at a place in or outside the ACT (including outside Australia) before a person appointed by the court; or

NoteOath includes affirmation (see Legislation Act, dict, pt 1).

(b)for the issue of a commission for the examination of a person on oath at a place in or outside the ACT (including outside Australia); or

(c)for the issue of a letter of request to a judicial authority of a place outside the ACT (including outside Australia) to take the evidence of a person (or cause it to be taken).

NotePt 6.2 (Applications in proceedings) applies to an application for an order or direction under this rule.

…

18․Where an order for examination is made, the examiner must ensure that the evidence is recorded, including by audio-visual recording: r 6822 of the Court Procedures Rules.

19․Rule 6826 of the Court Procedures Rules provides that “[t]he court may make an order about the costs of an examination under an examination order”. An “examination order” is defined in r 6810 to include an order made under r 6813. Rule 6827 also makes provision for the payment of the expenses of the examined witness, which is not relevant to this application.

Submissions

Applicant’s submissions

20․In her written submissions filed on behalf of the applicant, Ms Jones SC acknowledged that in R v Bui [2011] ACTSC 102; 5 ACTLR 230 at [67] – [69], Refshauge J held:

The Court Procedures Act permitted the court to make rules of court with respect to the awarding of costs. In civil proceedings, a detailed regime for costs was set out in Pt 2.17 of the Rules. That Part, however, was not imported into the criminal rules in Chapter 4.

The Court Procedures Act, however, did empower the Rule-Making Committee (established by s 9 of the Court Procedures Act) to make rules in criminal proceedings in respect of:

(m)    costs payable to defendants in particular circumstances.

No such rules have been made.

21․However, Ms Jones SC submitted that the decision in Bui did not “canvass every rule or circumstance applicable to criminal proceedings”. She submitted that r 6826 affords the Court a clear power to make an order for the costs of an examination in both civil and criminal proceedings.

22․Ms Jones SC further submitted that the prosecution’s failure to advise the Court of Mr Bastian’s unavailability when the matter was listed for trial on 11 April 2023 caused the applicant to incur additional costs beyond those which would have been incurred if Mr Bastian had given evidence during the substantive trial. She submitted that whilst the failure to advise the Court of the unavailability of Mr Bastian “may have been an oversight”, it was nonetheless one that was borne solely by the DPP.

The prosecution’s submissions

23․The prosecution contended that the Court should not make a costs order for two reasons.

24․First, the prosecution submitted that r 6826 ought not be “used as a vehicle to overturn the long-held authority that costs are not payable by the prosecution in the ACT for matters prosecuted on indictment”. In support of this decision, the prosecution relied on R v Richardson [2016] ACTSC 22; 307 FLR 8 at [18] – [20], in which Mossop AsJ (as his Honour then was), following Refshauge J in Bui (at [60] – [71]), held that there is no power to award costs against the prosecution in a criminal matter prosecuted on indictment in this Court.

25․The prosecution submitted that, properly construed, r 6826 should be construed as empowering the Court to make orders with respect to the ancillary costs that may be involved in taking the evidence of a witness otherwise than at trial – such as the cost of hiring a venue, or booking an audio-visual link – and not as extending to orders for the making of orders for professional (that is, legal) costs.

26․Second, the prosecution submitted that, even if r 6826 were construed as conferring a discretion on the Court to award professional costs in criminal proceedings, such an order should not be made in the present case. In particular, the prosecution submitted that the discretion to award costs should be exercised in the context of the “historical reality” that the Crown has been neither awarded, nor ordered to pay, costs. The prosecution submitted that, “in consideration of this long-held rule… there would need to be compelling reasons for the court to exercise such as discretion, should one exist”.

27․The prosecution further submitted that, in the present case, the following matters militated against the making of a costs order:

(a)The prosecution “promptly advised” defence of issues relating to the availability of Mr Bastian and “proposed several options to resolve the issue”. The applicant required the witness for cross-examination and declined vacating the trial and obtaining a new trial date; and

(b)The prosecution only proceeded with the application in respect of pre-recording Mr Bastian’s evidence after the applicant’s legal representatives advised the application was not opposed. At this time, the applicant’s legal representative did not foreshadow that a costs order would be sought against the prosecution.

28․As to (b) above, the prosecution further submitted that, had defence informed the prosecution that their consent to the examination was contingent upon costs, the prosecution would have been afforded the opportunity to consider whether to pursue an alternative means of rectifying the issue, such as:

(a)An application to vacate the trial date and obtain a new trial date suitable to the witness;

(b)Flying the witness to a country with a Mutual Assistance Agreement with Australia, allowing the evidence to be taken in accordance with international treaties; or

(c)Not calling the witness in the prosecution case.

29․Finally, the prosecution submitted that the pre-recording of the evidence of Mr Bastian generated no further work as “preparation for cross-examination of the witness was required in any event had the witness been called in the usual course of the trial”.

Determination

Power to make an order for costs

30․A comprehensive history of the principles with respect to the award of costs in criminal proceedings relevant principles is contained in the decision of Refshauge J in Bui at [59] – [69]. It is unnecessary to recount that history here. For present purposes, it suffices to note that whilst it has long been held that costs are not payable by or to an accused or the Crown, this principle is “subject to statute”: Bui at [61].

31․As outlined at [20] above, in Bui at [68], Refshauge J observed that s 134(m) of the Court Procedures Act2004 (ACT) empowers the Rule-Making Committee to make rules with respect of “costs payable to defendants in particular circumstances”, but noted that “no such rules have been made”: Bui at [69]. Associate Justice Mossop (as his Honour then was) followed the decision in Bui and reached the same conclusion in Richardson (at [20] – [22] and [48]).

32․Neither Bui nor Richardson concerned an application for costs relating to an examination under Div 6.10.8 of the Court Procedures Rules.  Bui concerned a prosecution in which the trial was vacated following late disclosure of relevant documents by the Crown. The accused in Bui applied for the prosecution to be stayed until the prosecution paid the costs which he had lost as a result of the prosecution’s late disclosure. Although Refshauge J concluded that the Court lacked jurisdiction to make an order for costs, his Honour was satisfied that the Court had jurisdiction to order a conditional stay to address unfairness. Richardson concerned an application made by an accused for costs in circumstances where the prosecution had unsuccessfully applied to have a subpoena set aside.  Associate Justice Mossop (as his Honour then was) concluded that the Court had no power to make a costs order in those circumstances and dismissed the application. Neither Refshauge J in Bui, nor Mossop AsJ in Richardson had occasion to consider r 6826, or the rules relating to the costs of examinations.

33․Rule 6826 empowers the Court to make an order “about the costs of an examination under an examination order”. An “examination order” is defined to include an examination under r 6813. Rule 6813 expressly applies to both civil and criminal proceedings. Accordingly, r 6826 provides clear authority to the Court to make a costs order with respect to the costs of an examination, whether or not the proceedings are civil or criminal in nature.

34․I do not accept the Director’s submission that r 6826 should be construed as limited to the ancillary costs involved in taking the evidence of a witness at trial. The rule is not subject to any such textual limitation. Rule 6826 confers broad power to make a costs order “about” the costs of an examination. Witness expenses are dealt with separately, under r 6827. On a plain reading, an order for the legal costs incurred on an examination is an order “about” the costs of an examination. There is no purposive reason to read down the plain words of r 6826 so as to limit its scope to the ancillary costs of an examination.

35․The prosecution submitted that r 6826 should be narrowly construed so as not to interfere with the historical principle that costs are not payable in criminal proceedings. There are two difficulties with this submission.

36․First, whilst historically, costs were not payable in criminal proceedings, that principle only applies in the absence of legislative provision to the contrary.

37․Second, r 6826 confers power to make costs in both civil, as well as criminal proceedings. The rule should not be read narrowly in its application to civil proceedings, simply because it also applies to criminal proceedings. Nor should the rule be given a different construction depending on which form of proceedings it is applied to in a given case.

38․Accordingly, I am satisfied that r 6826 confers a discretionary power on the Court to make an order for the costs of an examination, including the legal costs incurred in conducting the examination.

Discretion

39․I have carefully considered whether to exercise the discretion under r 6826 to make an order for costs.

40․As with other provisions conferring upon the court a general discretion to make an order for costs, the discretion under r 6826 is “not unqualified” and must be exercised judicially in accordance with established principle, and factors directly connected with and leading up to the litigation: see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at 96 [65], 121 [134]; Latoudis v Casey [1990] HCA 59; 170 CLR 534 at 539-540, 557, 561-562, 569. The exercise of the discretion requires a “broad evaluative judgment of what justice requires” in all of the circumstances: Gray v Richards (No 2) [2014] HCA 47; 315 ALR 1 at [2].

41․As outlined above, the prosecution submitted that, in exercising the discretion to award costs, the Court should take account of the historical principle that costs are generally not awarded in criminal cases. The prosecution submitted that any discretion to award costs should be exercised “cautiously and sparingly, and only where there are compelling and exceptional reasons [to do so]”. No authority was cited in support of this proposition.

42․The High Court considered a contention to similar effect in Latoudis v Casey [1990] HCA 59; 170 CLR 534. Latoudis concerned a provision of Victorian legislation (s 97(b) of the Magistrates (Summary Proceedings) Act 1975 (Vic)), which conferred a general discretion on a court to make a costs order in favour of a defendant when dismissing a criminal information or complaint. At the time, competing practices had developed in different States and Territories in the application of similar discretions. In some jurisdictions, the practice was not to award costs against the prosecution except in special or exceptional circumstances; in other jurisdictions, the practice adopted was that costs were generally awarded to a successful defendant: Latoudis at 538 – 540 (Mason CJ).

43․A majority of the High Court (Mason CJ, Toohey and McHugh JJ, Brennan and Dawson JJ dissenting) disapproved of the practice of not awarding costs against the prosecution in except in exceptional circumstances: Latoudis at 542 (Mason CJ); at 565 (Toohey J) and at 567 (McHugh J).

44․In so holding, Mason CJ held that the “old rule” that “the Crown neither receives nor pays costs” in criminal proceedings had “been displaced” by the Victorian provision: Latoudis at 538. The rule “could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings”: Latoudis at 538. His Honour concluded (at 542) that:

By conferring on courts of summary jurisdiction a power to award costs when proceedings terminate in favour of the defendant, the legislature must be taken to have intended to abrogate the traditional rule that costs are not awarded against the Crown.

45․His Honour was not persuaded that there was a “complete analogy” between the discretion to award costs in civil and the discretion to award costs in criminal proceedings, and did not accept that there should be a rule that costs follow the event: Latoudis at 543. Nonetheless, his Honour was persuaded that “in ordinary circumstances” an order for costs should be made in favour of a successful defendant: Latoudis at 544.

46․Similarly, McHugh J held (at 567) that:

Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of a successful defendant in summary proceedings. To use them in that manner is to ignore the purpose of the legislature in enacting the legislation.

47․Justice Toohey likewise held that costs should be awarded to indemnify the successful party, and that an order for costs in summary proceedings should not be withheld simply because police officers may be discouraged from bringing prosecutions: Latoudis at 563.

48․The issue in the present case differs from that in Latoudis. Unlike the provision considered in Latoudis, an examination does not have an immediate “result” (or “event”), and there is no “successful” or “unsuccessful” party; cf Latoudis at 563 (Toohey J) and 567 (McHugh J). Nonetheless, it follows from the reasoning in Latoudis that the historical rule that costs are not payable in criminal proceedings should not govern the exercise of a statutory discretion which expressly authorises the making of an order for costs in respect of a specified aspect of a criminal proceeding.

49․This is not to say that a costs order should be made against the prosecution whenever an order for an examination is made. The discretion conferred by r 6826 is broad and should be exercised to achieve a just outcome in all of the circumstances of the case.

50․The general rationale for the making of a costs order is that “it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred”: Latoudis at 567 (McHugh J); see also at 543 (Mason CJ) and 563 (Toohey J). Accordingly, it may be appropriate for there to be no order as to costs in a case where the need for an examination order to be made arises through no fault of either party, such as where a witness becomes unavailable after the listing of a trial for hearing.

51․However, in the present case, the examination was required because of the prosecution’s failure to carefully check that the proposed trial date was suitable for all of its witnesses. The applicant suffered loss as a result of this oversight, and it is “just and reasonable” that the prosecution compensate the applicant for that loss: Latoudis at 543.

52․The applicant’s legal representatives should have notified the prosecution of the intent to seek a costs order when they advised the prosecution that the application for an examination would not be opposed. However, their failure to do so in the present case does not alter my assessment of where the interests of justice lie. It was incumbent on the prosecution to appreciate the statutory regime which it invoked. For the reasons outlined above, that statutory regime included the potential of an adverse costs order.

53․I am not satisfied that the failure of the applicant’s legal representatives to foreshadow the making of a costs order deprived the prosecution of the opportunity to pursue the taking of Mr Bastian’s evidence by other means. Mr Bastian was a complaint witness who was required for cross-examination by the applicant. On no view would it have been appropriate for the trial date to be vacated by reason of the prosecution’s oversight. If there were other alternatives to examination that could have been pursued by the prosecution which did not involve vacation of the hearing date (such as arranging for Mr Bastian to be flown to a country that had a Mutual Assistance Agreement with Australia), those alternatives should have been pursued in the first instance, rather than preferring an alternative which necessarily occasioned additional cost to an accused persons.

54․For these reasons, I am satisfied that an order for costs should be made in favour of the applicant.

Quantum

55․The award of costs with respect to the examination should only compensate the applicant for the additional preparation that was occasioned by the taking of Mr Bastian’s evidence in an examination, rather than at trial.

56․Much of the preparation undertaken for the examination hearing would have had to be undertaken in any event had Mr Bastian’s evidence been adduced during the trial. Nonetheless, as Ms Jones SC submitted, in the “normal course”, the preparation of cross-examination occurs as a part of the preparation of the matter for trial generally. Where, as here, a witness is called some weeks before the trial, there will necessarily be a degree of duplication in the preparation required. The order for costs should take this duplication into account.

57․I will order that the prosecution pay the applicant’s reasonable legal costs of appearing at the examination and of appearing at the hearing of the present application on 14 August 2023 and preparing for that application. I will also order that the prosecution pay 50 percent of the applicant’s legal costs of preparing for the cross-examination of Mr Bastian.

Conclusion

58․For the reasons outlined above, the following orders are made:

(1)    The Director of Public Prosecutions is to pay the applicant’s reasonable legal costs of:

(a)Appearing at the examination hearing on 15 June 2023;

(b)Appearing at the hearings of the application for costs on 27 July 2023 and 14 August 2023 and preparing for that application.

(2)    The Director of Public Prosecutions is also to pay 50 percent of the applicant’s reasonable legal costs of preparing for the cross-examination of Mr Bastian at the examination hearing.

I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker

Associate:

Date: 15 November 2023