DPP v Hayden (No 2)

[2006] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 143 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS

v.

MARK CLIFFORD HAYDEN (No.2)

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JUDGES:	MAXWELL, P. and VINCENT, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 May 2006
DATE OF JUDGMENT:	25 July 2006
DATE OF COSTS ORDER:	4 August 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 155

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APPEAL – Criminal appeal – Costs – Director’s appeal against sentence – Application for extension of time – Whether successful respondent entitled to certificate – Appeal Costs Act 1998 s.15(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C.M. Quin	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr J. Fitzgerald	Office of David Grace, Q.C.

MAXWELL, P.,
VINCENT, J.A.:

1. The Director of Public Prosecutions made application for a grant of leave under s.567A(3) of the Crimes Act 1958, to serve on the respondent (“Hayden”) a notice of appeal against sentence. Leave was necessary because service was not effected within the statutory period of one month after the passing of sentence. On 25 July 2006, we dismissed the application for leave: [2006] VSCA 152.

1. Counsel for Hayden has applied for an indemnity certificate under the Appeal Costs Act 1998. No application is made for an order for costs as such, no doubt because s.58(1) of the Crimes Act 1958 precludes any order for costs –

“on the hearing and determination of an appeal or new trial or any proceedings preliminary or incidental thereto under [Part VI of the Crimes Act]”.

1. The relevant provision of the Appeal Costs Act is s.15, which relevantly provides as follows:

“(1)     If an appeal is instituted under –

(a) s.567A of the Crimes Act 1958;

...

the respondent to that appeal may apply to the Court of Appeal... for, and the Court may grant, an indemnity certificate in respect of the respondent’s own costs of the appeal.”

1. Can it be said in the present case that an appeal has been “instituted”, so as to enliven the power to grant a certificate?  After all, the Director has failed in obtaining the leave which he needed, and now cannot proceed with the appeal. 

1. In our view, the subsection does apply to a case such as this.  The word “instituted” means, relevantly, “initiated” or “begun”.[1]  An appeal is initiated, or begun, when the first step in the proceeding is taken.  In a case such as the present, that first step is an application for leave to serve a notice of appeal out of time. 

   [1]The Australian Concise Oxford Dictionary (4^th ed. 2004) p.725.

1. The alternative, narrower, view would be to say that, in a case where leave is required, the appeal is not instituted until leave is granted and the formal appeal document – the notice of appeal – filed and served.  As a matter of ordinary usage in this Court, that distinction is commonly drawn – as where the Court grants leave to appeal and orders that the appeal “be treated as having been instituted and heard instanter.”[2]  

   [2]See also DPP v Aarons [1999] 3 VR 150 at [29].

1. We approach the construction of s.15(1) on the basis that the word “instituted” is to be given its ordinary meaning, not some technical legal meaning. As we have pointed out, the ordinary meaning of the word gives rise to both a broader and a narrower interpretation of the subsection. Faced as we are with a choice of interpretations, we have no hesitation in preferring the broader interpretation, as being more consonant with the clear beneficial purpose of s.15(1) in particular and of the Act in general.[3] 

   [3]cf. Interpretation of Legislation Act 1984 s.35(a).

1. Counsel for the Director conceded – very properly – that if the narrow interpretation were the only interpretation available, such that no certificate could be granted, this would have to be regarded as an unintended omission. The Director did not contest the proposition that Parliament would plainly have intended a party in the position of Hayden, who has successfully opposed the Director’s leave application, to be as entitled to a certificate under s.15(1) as a respondent who had successfully opposed a substantive appeal.

1. Accordingly, we will grant an indemnity certificate under s.15(1) in respect of Hayden’s own costs of the application for leave.

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