Director of Public Prosecutions v Leach
[2012] VSC 96
•20 March 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST
No. S CI 2011 04234
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| OLIVER SIMPSON LEACH COUNTY COURT OF VICTORIA | First Defendant Second Defendant |
---
JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 March 2012 | |
DATE OF JUDGMENT: | 20 March 2012 | |
CASE MAY BE CITED AS: | DPP v Leach & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 96 | |
---
JUDICIAL REVIEW – County Court proceedings – Criminal offences – Whether costs may be ordered against Director of Public Prosecutions – County Court Act 1958, s 78A – Supreme Court Act 1986, s 24 – Criminal Procedure Act 2009, ss 210, 370, 401 and 404.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Champion SC, DPP with Mr B. Sonnet | Craig Hyland, Solicitor for Public Prosecutions |
| For the First Defendant | Mr L. Carter with Ms F. Todd | Robert Stary Lawyers |
| For the Second Defendant | No appearance |
HIS HONOUR:
Introduction
On 2 February 2011, the Director of Public Prosecutions (“the DPP”), the plaintiff, filed an indictment in the County Court against Oliver Simpson Leach, the first defendant, alleging one charge of rape. Mr Leach had previously been committed in the Magistrates’ Court to stand trial on two charges of rape.
On 3 May 2011, a special hearing was conducted pursuant to Part 8.2, Division 6 of the Criminal Procedure Act 2009. During the special hearing, the complainant was cross-examined by counsel for Mr Leach. The special hearing was conducted before her Honour Judge Cotterell. In her Honour’s words, by the finish of cross-examination “it seemed patently clear that the evidence was incapable of supporting a finding of guilt, in that, in particular it would not be open to a jury to find that [Mr Leach] was aware that the complainant was not or might not be consenting”. Her Honour raised that concern with the prosecutor and urged him to seek instructions as to what was to be done. The matter was stood down, and at 2.15pm on 4 May 2011, a notice of discontinuance was filed in respect of the indictment.
On 27 June 2011, following application made by counsel for Mr Leach, Judge Cotterell delivered reasons ruling that, pursuant to s 78A of the County Court Act 1958, Mr Leach was entitled to be awarded two thirds of the costs applicable to preparation for trial and the special hearing. On 30 June 2011, her Honour ordered the DPP to pay these costs fixed in the sum of $19,176.
In this proceeding, the DPP seeks an order in the nature of certiorari quashing the costs order made in favour of Mr Leach “upon the ground that in making the order her Honour erred in finding that she had jurisdiction to make such an order”. Essentially, the DPP contends that s 78A of the County Court Act does not give the County Court jurisdiction to make a costs order in circumstances of the kind that arose in this case.
Mr Leach resists the DPP’s application. While the second defendant (the County Court of Victoria) filed an appearance, it did not take any active role in the proceeding and was content to merely abide the decision of the Court, save as to costs.[1] It is now necessary to describe the course of the application for costs made below.
[1]Cf R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors (1980) 144 CLR 13, 35.
The application for costs below
Upon the filing of the notice of discontinuance on 4 May 2011, counsel for Mr Leach[2] applied for costs pursuant to s 404 of the Criminal Procedure Act.
[2]Not counsel briefed in this proceeding.
Section 404(1) of the Criminal Procedure Act provides:
“(1) If-
(a) the Supreme Court or the County Court is satisfied that an act or omission by, or on behalf of, a party before the commencement of trial was unreasonable and resulted in prolonging the trial; or
(b) there has been a departure referred to in section 233; or
(c) a party has failed to comply with a requirement of Part 5.5 or an order made under that Part-
the court may make any order that it considers appropriate with respect to the costs of and incidental to the trial and, for this purpose, it has full power to determine by whom, to whom and to what extent those costs are to be paid.”
In support of her application for costs, counsel for Mr Leach below submitted that the trial had commenced and that s 404(1)(a) was engaged. Additionally, and in reliance upon s 404(1)(c), counsel for Mr Leach below argued that “if the prosecution had given careful consideration when [an] initial application for discontinuance was put in, they would have seen there was not enough evidence to support the four elements required to sustain a conviction for rape … [and it would therefore be appropriate for an order for costs to be made]”.[3] During the course of the application on 4 May, a question arose as to whether the Court had power to order costs under s 404, given the operation of s 210 of the Criminal Procedure Act. Section 210 relevantly provides that a trial commences when an accused pleads not guilty on arraignment in the presence of the jury panel.[4] Notwithstanding the submissions of Mr Leach’s counsel below, the parties now agree that Mr Leach’s trial never commenced. Mr Leach was arraigned and pleaded not guilty prior to the commencement of the special hearing. However, his arraignment and plea of not guilty did not occur in the presence of any jury panel or part thereof. Accordingly, the parties now do not contest that no trial had been commenced at the time of the discontinuance.[5] Indeed, as will be referred to below, her Honour ultimately so ruled.
[3]See her Honour’s reasons below (“the reasons below”) at paragraph [24].
[4]Or the first part of the jury panel if the panel is split into two or more parts under s 30(5) of the Juries Act 2000.
[5]See further paragraph [21] of the reasons below.
On 6 May 2011, the application for costs was listed for further argument. On that day, Mr Leach’s counsel below submitted that, in addition to s 404 of the Criminal Procedure Act, her Honour also had power to award costs pursuant to s 78A of the County Court Act. The transcript of the argument below shows that the prosecutor below[6] may not have been fully prepared for an argument about s 78A of the County Court Act. In the course of his submissions, the prosecutor below accepted that the County Court had power under s 78A to award costs. Further, the prosecutor submitted to her Honour that the discretion was “pretty wide based on what’s in it [Division 5.5 of the Criminal Procedure Act]”.[7]
[6]Again, not counsel who appeared in this proceeding.
[7]Transcript of 6 May 2011 at T10-15.
As a result of the concession made by the prosecutor below, no argument was addressed to her Honour concerning the history of s 78A. Further, relevant authorities to which I was referred in the hearing of this proceeding were neither raised with her Honour nor the subject of any submission to her Honour. As will become apparent from what I say below, these omissions were, at the very least, unfortunate.
The reasons below
On 27 June 2011, her Honour ruled that s 404 of the Criminal Procedure Act had no application in the present case. No complaint is made by any party in relation to that conclusion. Her Honour then turned to s 78 A of the County Court Act. Notwithstanding the lack of any reference to her Honour, by counsel below, of relevant authorities concerning s 78A, her Honour’s reasons dealt with two of the most relevant authorities concerning the issues raised by that section in the application before her: R v Wright, Danci & Currie[8] and Perkins v County Court of Victoria & Ors.[9] In granting Mr Leach’s application pursuant to s 78A, her Honour said:
[8](1992) 77 ACrimR 67.
[9](2000) 2 VR 246.
“34. The question of costs was discussed at length in Wright v Keon-Cohen; Danci v Duggan; Currie v Neesham (1992) 77 ACrimR 67 which involved an application for judicial review in relation to costs being awarded against the Director of Public Prosecutions in favour of accused persons who had been acquitted following trial. Brooking J concludes that s 78A(1) of the County Court Act has no application in trials on indictment or presentment. However, the Court in that case did award costs against the Applicant and the Review proceedings which were criminal proceedings within the meaning of s 24 of the Supreme Court Act (as the ‘underlying’ proceedings was itself (sic) criminal). Accordingly, the decision in Wright to award costs to the OPP following the review appears to recognise that s 24(1) of the Supreme Court Act (and, presumably, s 78A(1) of the County Court Act) supports the view that the provision does apply in respect of at least some criminal proceedings (even if not trials on indictment or presentment).
35. This view is taken further in Perkins case to which I will refer to shortly.
36. In Wright, an application for review in relation to the refusal by three County Court Judges to award costs pursuant to s 78A(1) of the County Court Act to defendants following their acquittal at trial, the Court held that the County Court would be unlikely to have a broader costs jurisdiction than that granted to the Supreme Court under s 24(1) and the legislation preceding the enactment of s 24 of the Supreme Court Act which goes back as far as 1890 did not afford any power to award costs against or for the Prosecution in criminal proceedings. Each Judge concluded that s 24(1) does not apply to criminal trials. This, however, was qualified in the judgment of Tadgell J when he stated:
‘The statutory provisions to which I have just referred may support (or not be inconsistent with) the wider conclusion that has been reached by Brooking J that s 78A(1) of the County Court Act has no application to criminal trials of any kind whether upon a Prosecution indictment or not. I do not find it necessary in order to decide these cases to say that the County Court has no jurisdiction to award costs in any criminal proceeding.’]
37. In Perkins v County Court of Victoria [2000] VSCA 171 both Wright and the legislative history of s 24 of the Supreme Court Act were considered.
38. In relation to an application for judicial review in Perkins under Order 56 of the Supreme Court Rules, it was determined that it should be regarded in the same way as an application for relief if directed to the County Court on appeal from a Magistrate. Such proceedings would be characterised as a criminal proceeding because the underlying proceeding was obviously criminal. Therefore, the proceeding was a criminal proceeding within s 24(2) of the Supreme Court Act.
39. The Court went on to say that s 24(2) did no more than preserve the practice in any criminal proceeding so that the ample jurisdiction over costs conferred by s 24(1) could be exercised only in conformity with such practice.
40. The practice relied upon by the appellant was that the Prosecution neither gives nor receives costs in criminal proceedings and, although that practice operated regularly in trials on indictment or presentment, it was doubtful that it extended to an application for judicial review. Further, that the Prosecution was not a party to the proceeding so the practice relied upon could have no application. Therefore, the Court’s jurisdiction under s 24(1) was not limited in this case because of s 24(2).
41. The Court agreed that s 24(1) is confined to the proposition that it does not apply to trials on indictment independent of s 24(2), but otherwise s 24(1) should be read as conferring a general jurisdiction over the costs of and incidental to all matters in the court, including civil and criminal proceedings and, given the significant exception of criminal trials is established. It is to be noted that the Court in Wright did award costs to the DPP following the review. It therefore follows that Wright cannot stand for the blanket proposition that there are no costs in criminal proceedings.
42. In Perkins, Phillips JA reached the following conclusions at [40]:
(1) Section 24(1) of the Supreme Court Act 1986, which is the source in this case of the jurisdiction over costs exercised below, extends to this proceeding in the Trial Division for judicial review under O 56 in respect of the hearing and determination in the County Court of an appeal from the Magistrates’ Court after conviction.
(2) The operation of s 24(1) to confer jurisdiction over costs is, however, subject to s 24(2) and this proceeding in the Trial Division is a criminal proceeding in the relevant sense, according to cases which, in the main, have considered the right of appeal in a criminal proceeding.
(3) Subsection (1) does not cease to apply to a proceeding which is a ‘criminal proceeding’ within the meaning of subs (2). It operates still to confer jurisdiction over costs, but the jurisdiction must not be exercised otherwise than conformably with any relevant practice in criminal proceedings.
(4) The only practice relied upon by the appellant was that the Crown neither gives nor receives costs. That practice operates regularly upon the trial of indictable offences and probably in interlocutory proceedings relating to such trials, but query whether it has any application to a proceeding in which judicial review is sought under O 56.
(5) The practice relied upon has no application to the present proceedings because the Crown was not a party, nor did it intervene, at any level. The informant was not the Crown.
43. The Court in Perkins does not overrule the decision in Wright, but the language and reasoning seem to confine its effect to trial on indictment by suggesting that otherwise an alternative approach should be applied.
44. There is as yet no established practice in relation to costs when a case is discontinued after the Special Hearing, that is before trial on indictment commences (which would bring it into the ambit of Wright’s case).
45. The position in Victoria does not appear to be that costs cannot be allowed for or against the Crown in all criminal proceedings accepting that in Wright costs were awarded to the Director of Public Prosecutions, while Perkins leaves the question open.
46. In my view, whilst it is clear that there can be no costs in relation to a trial on indictment, except as provided in s 404 Criminal Procedure Act, there is no rule or practice that prevents costs being awarded to or against the Crown in all criminal proceedings.
47. As practice changes and matters are legislatively placed in a hiatus between committal and trial, this in my view creates a legal proceeding which can result in an order for costs.
48. For these reasons, I grant the application and make an order for costs in favour of the Applicant in these proceedings … .”[10]
[10]Emphasis in original.
The issue in this proceeding
The issue in this proceeding is whether s 78A of the County Court Act gave her Honour jurisdiction to make the costs order which she made. If, on its proper construction, s 78A empowered her Honour to make the costs order, then this proceeding must fail. On the other hand, if s 78A did not give the Court below power to make the order, then (as was properly conceded by counsel for Mr Leach) the order for costs below must be quashed.
It is necessary now to examine s 78A of the County Court Act.
Section 78A of the County Court Act
Section 78A of the County Court Act was inserted into the County Court Act by s 14 of the Courts Amendment Act 1986. In its original form, s 78A provided:
“(1) The costs of and incidental to all proceedings are in the discretion of the Court and the Court may determine by whom and to what extent the costs are to be paid.
(2) In the due exercise of the discretion conferred by sub-section (1), in any proceedings before the Court, the Court may order a legal practitioner to pay the costs of the proceedings or a portion of the costs.”
As was noted by Brooking J[11] in R v Wright, Danci & Currie,[12] at the time s 78A was introduced into the County Court Act, the Act did not define either “proceeding” or “proceedings”. However, s 5 of the County Court (Amendment) Act 1989 subsequently introduced a definition of “proceeding” into the County Court Act. “Proceeding” was, in 1989 (and still is) defined to mean “any matter in the Court”.[13]
[11]As his Honour then was.
[12](1992) 77 ACrimR 67, 70.
[13]I should add for the sake of completeness that at the same time the word “proceeding” became defined in the County Court Act, a definition of the word “matter” was repealed.
In Wright,[14] Brooking J said that:
“It should be noted that s 78A uses the plural ‘proceedings’, not only in sub-s (1) (‘all proceedings’), but also in sub-s (2) (‘any proceedings … the proceedings’), which makes it difficult to treat ‘proceedings’ in s 78A as the plural of the expression ‘proceeding’ as defined”.
[14]Ibid.
It is also to be noted that the definition of “proceeding” was introduced three years after s 78A was enacted. As an examination of the County Court (Amendment) Act 1989 reveals, at the same time the definition of “proceeding” was introduced, many sections of the County Court Act were amended to replace words such as “action”, “suit” and “matter” with the word “proceeding”. However, nothing in the County Court (Amendment) Act 1989 suggests an intention to alter the meaning of the word “proceedings” which then existed (and now exists) in s 78A.
Subsequent to Wright, sub-s (3) of s 78A was enacted. Sub-section (3) was inserted into s 78A by s 15 of the Courts Legislation Amendment (Costs Court and Other Matters) Act 2008. Sub-section (3) provides:
“The Court may order that the costs of, and incidental to, a proceeding in the Court be assessed, settled, taxed or reviewed by the Costs Court.”
Whilst the singular “proceeding” is used in sub-s (3), the plural “proceedings” remains in sub-ss (1) and (2) of s 78A. Section 1 of the Courts Legislation Amendment (Costs Court and Other Matters) Act provides that the main purpose of this Act was to establish and provide for the operation of the Costs Court. The explanatory memorandum for the Act states that s 15, amongst other things, inserts sub-s (3) of s 78A “to provide that the Court may order that costs may be assessed, settled, taxed or reviewed by the Costs Court”. Nothing in the explanatory memorandum or extrinsic material[15] suggests that a purpose of sub-s (3) was to alter the ambit or field of operation of s 78A(1).[16]
Wright’s case in more detail
[15]See the Attorney-General’s Statement of Compatibility in accordance with the Charter of Human Rights and Responsibilities Act 2006 and the Second Reading Speech in respect of the Courts Legislation Amendment (Costs Court and Other Matters) Bill: Hansard, Legislative Assembly, 20 August 2008, pp 3063-3065.
[16]For the sake of completeness I should also note that s 15 of the Courts Legislation Amendment (Costs Court and Other Matters) Act inserted a note at the foot of s 78A(1) referring to s 17D(1)(b) to (d) of the Supreme Court Act 1986. Additionally, s 15 also inserted a note at the foot of s 78A(3) referring to s 146 of the Supreme Court Act, which deals with transitional matters relating to the Costs Court.
Wright’s case concerned three applications for judicial review. The question raised in each application was whether costs may be awarded by the trial judge against the Crown or the Director of Public Prosecutions in favour of an accused person who had been acquitted of a criminal offence after a trial in the County Court. Brooking J (with whom Fullagar J agreed) noted that it was often said that “In criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the Crown neither pays nor receives costs”.[17] His Honour then said: “But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs”.[18] His Honour went on:
“This absence of any power at common law to award costs to or against any prosecutor, public or private, must, I think, be regarded as the fundamental principle.”[19]
[17]77 ACrimR 67, 68.
[18]Ibid.
[19]Ibid at 69.
As formulated by Brooking J, the primary question in Wright was “Whether some statute authorise[d] the making of an order that the prosecutor pay the costs of a person who has been tried for an indictable offence in the County Court”.[20] Section 78A of the County Court Act was the section relied upon by the plaintiffs in Wright.
[20]Ibid at 70.
After analysing the history of s 78A, his Honour then discussed the history and operation of s 24 of the Supreme Court Act 1986. Section 24 relevantly provided:
“(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court including the administration of estates and trusts is (sic) in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
(2) Nothing in this section alters the practice in any criminal proceeding.”
After analysing s 24 of the Supreme Court Act and its history, Brooking J concluded that s 24 of the Supreme Court Act did not apply to criminal trials.[21] His Honour then said:
“I return now to s 78A of the County Court Act 1958. It is highly unlikely that Parliament, in enacting s 78A intended to confer on the County Court a power to award costs in criminal trials which the Supreme Court lacked. Although the bulk of criminal trials in Victoria take place in the County Court, many trials, often lengthy, still take place in the Supreme Court. Moreover, the criminal jurisdiction of the County Court is not as extensive as that of the Supreme Court.”[22]
[21]Ibid at 73.
[22]Ibid.
Brooking J then referred to, amongst other things, the Parliamentary debates relating to the enactment of s 78A of the County Court Act, before saying:
“I cannot accept that Parliament intended by this legislation, debated in this way, to take the important and possibly controversial step of allowing orders for costs to be made in favour of or against persons charged with indictable offences.”[23]
[23]Ibid at 75.
Finally, after referring to s 36A(2) of the County Court Act,[24] his Honour stated:
“My conclusion is that s 78A of the County Court Act has no application to criminal trials.”[25]
[24]Which relevantly provided:
“Subject to sub-section (1) and unless otherwise expressly provided the County Court shall have jurisdiction and powers with respect to indictable offences and the trial thereof as fully and amply to all intents and purposes as the Supreme Court of Victoria in like matters and the general principles of practice and procedure observed for the time being in the Supreme Court of Victoria with respect to the trial or determination of indictable offences shall be adopted and applied in the County Court.”
[25]77 ACrimR 67, 75.
Tadgell J[26] delivered a separate judgment agreeing that s 78A did not empower the trial judges to award costs in the circumstance of the applications for review then before the Court. However, Tadgell J said:
“The statutory provisions to which I have just referred may support (or be not inconsistent with) the wider conclusion that has been reached by Brooking J that s 78A(1) of the County Court Act has no application to criminal trials of any kind, whether upon a Crown indictment or not. I do not find it necessary, in order to decide these three cases, to say that the County Court has no jurisdiction to award costs in any criminal proceeding. I am, however, satisfied that it had no power to do so in the present cases. I agree with the orders proposed by Brooking J.”[27]
[26]As his Honour then was.
[27]Ibid at 81.
The plaintiff’s submissions
The DPP submitted that Wright’s case was authority for the proposition that s 78A of the County Court Act does not empower the County Court to make orders for costs in favour of persons charged with indictable offences. Accordingly, it was submitted that the costs order made below must be quashed. Whilst other submissions were made on behalf of the plaintiff, these were largely in response to contentions that it was anticipated would be made on behalf of Mr Leach. It is necessary now to turn to the submissions made on behalf of Mr Leach.
The first defendant’s submissions
It was submitted on behalf of Mr Leach that Wright’s case was authority for the limited proposition that s 78A has no application to criminal trials. It was then submitted that because Mr Leach’s criminal trial had not commenced (he not having been arraigned in the presence of the jury panel), s 78A empowered her Honour to make the costs order the subject of this proceeding.
In elaboration of the submission that Wright’s case limits the operation of s 78A only in respect of criminal trials, counsel for Mr Leach pointed to the judgment of Tadgell J wherein his Honour stated that it was not necessary, in order to decide Wright, to say that the County Court had no jurisdiction to award costs in any criminal proceeding. Additionally, I was taken to the subsequent Court of Appeal decisions of Perkins v County Court of Victoria & Ors[28] and R v Garth & Anor.[29] Specifically, in Perkins, Phillips JA (with whom Charles and Buchanan JJA agreed) said that the qualification in s 24(2) of the Supreme Court Act which saved “the practice in any criminal proceeding” does not exempt from the operation of s 24(1) “any criminal proceeding”.[30]
[28](2000) 2 VR 246.
[29](2008) 21 VR 203.
[30](2000) 2 VR 246, 258 [24].
In Garth, Nettle JA (with whom Maxwell P and Weinberg JA agreed) said that the grant in s 24(1) of the Supreme Court Act of power over costs is “ample, subject only to sub-s (2), and that sub-s (2) should be taken as doing no more than preserving the ‘practice in any criminal proceeding’ in the sense that the jurisdiction conferred by sub-s (1) can be exercised only conformably with the practice”.[31]
[31](2008) 21 VR 203, 209 [27].
It was submitted on behalf of the first defendant that her Honour’s conclusions at paragraphs [44] to [48][32] were “unimpeachable”. These conclusions were adopted by Mr Leach’s counsel as part of their argument.
[32]Set out in paragraph [11] above.
It was next submitted that s 78A had to be construed in the light of the significant changes made by the introduction of the special hearing procedure enacted in Part 8.2, Division 6 of the Criminal Procedure Act. That procedure mandates the evidence of a complainant to whom Division 6 applies to be given, not at committal, but rather, before the Court at which the indictment is filed.[33] It was said that, but for the special hearing procedure which had to be followed in this case, the complainant would have given evidence and been cross-examined at committal, Mr Leach would have been discharged at committal and a costs order could (and likely would) have been made in his favour.[34]
[33]Cf ss 369-371 of the Criminal Procedure Act.
[34]Cf s 401 of the Criminal Procedure Act.
In further elaboration of this submission, it was said on behalf of Mr Leach that the “practice in any criminal proceeding” referred to in s 24(2)of the Supreme Court Act must now encompass the change brought about by the creation of the special hearing procedure, and that costs which would have in the ordinary course been capable of being ordered at a committal hearing in the Magistrates’ Court are now capable of being ordered pursuant to s 78A of the County Court Act.
Next it was submitted that it would be an “absurd outcome” if there was no jurisdiction to award costs pursuant to the Criminal Procedure Act on the basis that a trial had not commenced; and at the same time there was no jurisdiction to award costs pursuant to s 78A on the basis that the practice in criminal proceedings referred to in s 24(2) of the Supreme Court Act extended to any proceedings related to trial on indictment. Additionally, in the first defendant’s written submissions, it was submitted:[35]
“Critically, it is to be kept in mind that the rationale for an order for costs is:
‘… that it is just and reasonable that the party who caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory’: Latoudis v Casey (1990) 170 CLR 534, 567 per McHugh J; see also Mason CJ at 543.
In exercising its discretion to award or refuse costs, a court should look at the matter primarily from the perspective of the defendant. To do so conforms to fundamental principle: Latoudis at 542 per Mason CJ.”
[35]Outline of submissions on behalf of first defendant dated 7 March 2012, paragraphs 20 and 21.
Immediately it should be noted that the statements relied upon by Mr Leach in Latoudis v Casey concern the approach to be taken once a statutory power to order costs has been identified. The issue in the present case is, of course, whether or not there is power in s 78A of the County Court Act to make an order for costs in the circumstances of the present case.
Finally, I was referred to the Court of Appeal’s decision in Astbury v Wood & Anor.[36] In that case, Ashley JA (with whom Redlich JA agreed) conducted an extensive analysis of the history of s 78A. The case concerned costs payable in respect of an expert witness’s fees for appearing and giving evidence in the trial of a personal injuries proceeding. Whilst Ashley JA said[37] that sub-s 78A(1) invests the County Court with a discretion as to “the costs of and incidental to all proceedings” and that the discretion was “a broad one”, I note that no reference was made to Wright’s case and the Court in Astbury did not seek to qualify any of the principles relied upon in Wright’s case.
[36](2009) 23 VR 302, and in particular paragraphs [36]-[40], [41], [44], [46] and [67].
[37]Ibid, [67].
The resolution of this proceeding
In my view, the resolution of this proceeding depends upon the width of the proposition for which Wright’s case stands. The first defendant would have me confine Wright’s case to its own facts. That is, the first defendant contends that while s 78A of the County Court Act does not empower the County Court to order costs following the acquittal of an accused person, it permits the County Court to award costs in the circumstances of this case. However, in my view, Wright’s case stands for a wider proposition. As Brooking J said,[38] it cannot be accepted that Parliament intended by s 78A to take the “controversial step of allowing orders for costs to be made in favour of or against persons charged with indictable offences”. Whilst there are references to “criminal trials” in the reasoning of Brooking J, these references can be explained by the fact that Wright’s case was concerned with costs following acquittals after criminal trials.[39] That said, the reasoning in his Honour’s judgment is not so confined. Further, it should be noted that no counsel was able to refer me to any case involving persons charged with indictable offences who were granted costs in respect of either the trials of such charges, any pre-trial applications or argument, or any pre-trial appearances in the courts in which indictments were filed (or in which presentments were made).[40]
[38]Noting that his Honour’s reasons were agreed with by Fullagar J.
[39]As McHugh JA noted in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 248:
“In Cassell & Co Ltd v Broome [1972] AC 1027 at 1085, Lord Reid warned of the danger of placing reliance on the literal words of particular judgments instead of searching for the applicable principle. His Lordship said:
‘… experience has shown that those who have to apply the decision to other cases and still more those who wish to criticise it seem to find it difficult to avoid treating sentences and phrases in a single speech as if they were provisions in an Act of Parliament. They do not seem to realise that it is not the function of noble and learned Lords or indeed of any judges to frame definitions or to lay down hard and fast rules. It is their function to enunciate principles and much that they say is intended to be illustrative or explanatory and not to be definitive.’”
[40]That is, outside the operation of the costs provisions now found in the Criminal Procedure Act.
The substance of Mr Leach’s argument was that there is now a special hearing procedure which prevents certain complainants from giving evidence at committal. The evidence of those complainants is now first heard in the court in which the indictment is filed. As a result of this procedure, an accused who would otherwise succeed at committal, and be entitled to an order for costs, might now be forced to come to the County Court or the Supreme Court, where his or her prosecution might be discontinued before trial as a result of evidence that would (absent the special hearing procedure) have been given at committal. As such an accused does not have the benefit of s 401 of the Criminal Procedure Act, it is contended that the practice referred to in s 24(2) of the Supreme Court Act must encompass a jurisdiction to award costs in respect of a special hearing.
The argument put on behalf of Mr Leach is not entirely without force. As a matter of policy, one might have thought that if the Parliament provided for costs to be paid in respect of the taking of certain evidence in the Magistrates’ Court, then simply because such evidence is (for different policy reasons) now to be taken in the court in which the indictment is filed (County Court or Supreme Court), there should be no different power in the court to make an order for costs in the event that the criminal proceeding is discontinued. Ideally, one might have thought it appropriate for the Parliament to enact specific costs provisions to deal with cases like the present proceeding.[41]
[41]Cf Part 8.4 of the Criminal Procedure Act.
However, except for this case, there is no practice of the kind referred to in s 24(2) of the Supreme Court Act which would found an order for costs under s 78A of the County Court Act in respect of a special hearing conducted before the commencement of a trial. It is not unheard of for criminal proceedings to be discontinued after an indictment is filed but before a trial is commenced. The practice in such cases is that costs are not awarded. In my view, there are parallels between the present case and cases where a criminal proceeding is discontinued after a Basha inquiry.[42] It was not suggested by any counsel before me that there is any practice of awarding costs when a criminal proceeding has been discontinued following a Basha inquiry, but before the commencement of the trial.
[42]R v Basha (1989) 39 ACrimR 337.
Perkins[43] and Garth[44] were cases where the Court of Appeal held that s 24 of the Supreme Court Act empowered orders for costs to be made in judicial review proceedings where the underlying proceeding was a criminal proceeding. In my view, nothing in those cases cuts across the decision in Wright.[45] Wright falls to be applied in this case. The existence of a specific costs provision that might have enabled Mr Leach to obtain an order for the costs of taking the complainant’s evidence if it could have been taken in the Magistrates’ Court (s 401 of the Criminal Procedure Act), and the corresponding absence of a specific provision dealing with the costs of taking the evidence in the County Court, does not justify amplifying the operation of s 78A of the County Court Act beyond the operation it has already been held to have by the Court of Appeal.
[43](2000) 2 VR 246.
[44](2008) 21 VR 203.
[45](1992) 77 ACrimR 67.
Conclusion
For these reasons, the submissions of the first defendant must be rejected and the costs order made below must be quashed. I will hear the parties on the form of order and any question of costs of this proceeding.
5
0