Hobeich v The Queen

[1992] FCA 1081

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COSTS - Criminal law and procedure - Accused's costs in criminal proceedings - Discretion to award costs - Relevant considerations.

COSTS - Application for extention of time - Appeal against

dismissal of that application - Appeal against conviction - - . .-. - - ..

parties to bear own costs.

Latoudis v Casey (1990) 170 CLR 534
R v Whitworth (1988) 164 CLR 500
R v John Edmund Carruthers (ACT G 45 of 1988; Full Court;

Federal Court; 28/10/88; unreported)

R v Goia (1988) 81 ALR 656 -.	-
3 July 1992

C

ANDREW JOSEPH HOBEICH v THE QUEEN

No. ACT G37 of 1990

10 SEP 2001

Coram: Jenkinson, Wilcox and Higgins JJ

Canberra

IN THE FEDERAL COURT OF AUSTRALIA	)
I
AUSTRALIAN CAPITAL TERRITORY	)
) .No. ACT G 37 of 1990
DISTRICT REGISTRY
GENERAL DIVISION	j

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:  ANDREW JOSEPH HOBEICH

. - Appellant

AND :  THE QUEEN

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER:	Jenkinson, Wilcox and Higgins JJ
DATE OF ORDER:	3 July 1992
WHERE MADE:	Canberra
THE COURT ORDERS THAT -
-

1.    The motions be dismissed.

2.    There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT' OF AUSTRALIA	)
AUSTRALIAN CAPITAL TERRITORY	) NO. ACT G37 of 1990
GENERAL DIVISION
DISTRICTREGISTRY	1

.. 1

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

BETWEEN :  ANDREW JOSEPH HOBEICH

I Appellant

&&Q:  THE OUEEN .- -- . .

\

Respondent

,

I

CORM:  Jenkinson, Wilcox and Higgins JJ

m: Canberra

DATE:  3 July 1992

REASONS FOR JUDGMENT

(

JENKINSON J.

,

I

Applications for orders that I the Crown pay an

-

accused	costs of several criminal proceedings in the
Court.

The appellant was convicted on jury verdicts in the

Supreme Court of the Australian Capital Territory of three

. . . . . . . . . . . . . . . . . . . . -- . . . . . - . . . . . . . . ~ .... . ..

counts of supplying heroin'to Miguel Anguel Rodriguez and one count of having heroin in his possession for the purpose of supplying that substance to Rodriguez. He sought from a single judge of the Court an order extending the time within which to file and serve a notice of appeal against his convictions and against the sentences imposed on him. That

application was dismissed. The appellant seeks now an order by this Full Court, which has allowed -an appeal against the order dismissing his application for an extension of time, that the Crown pay the appellant's costs of that application, and his costs of that appeal. Having granted an extension of the tima within which the appellant might file and serve notice of appeal against his convictions, this Court heard the

- - .. -

appeals instanter and allowed them and ordered a new trial.	1
The reasons for the Full Court's orders were published on 24
December 1990, and should be read with these reasons as the	I
complete statement of this Court's reasons on questions of costs. Upon motions in November 1991 on the part of the appellant that his costs of the appeal against the single judge's order of dismissal of his application for extension of time, his costs of that application and his costs of the appeals against the convictions by paid by the Crown a member of this Full' Court gave directions for the filing of written submissions for and Bgainst those motions. The court has considered the submissions and has concluded that each of those motions should be dismissed.

It was submitted on the appellant's behalf, first,

. . . . .. . . . . . . . . that- .in -. this-... Court- .-is ...reposed.-. a . --discretionary-.. .power- -with

respect to costs which is unfettered either by; the circumstance that the party against which the order for costs is sought is the Crown or by the circumstance that the proceeding in which the order is sought is a criminal proceeding. Reference was made in support of that submission

to a number of authorities, including Latoudis v. Casey (1990) T70 C.L.R. 534. If that submission were accepted - a step of considerable importance to be taken, if at all, only after full argument and careful consideration .. - the appellant's

motions would nevertheless in our view fail. I theref ore

assume,. but without expressing any opinion, that the first ... .

. .

,

submission was upheld.

.. -. .

!

On that footing the costs of the application for extension of time were incurred by reason of errors, resulting in lack of a timely notice of appeal, either of a person or persons for whose errors the appellant must bear responsibility or of the appellant himself, or of another person or other persons for whose errors the Crown does not bear responsibility. The material before this Court, being

I

the material before the single judge, does not enable

persons. It was submitted that the ~ro- should have obviated	responsibility for the errors to e assigned to particular 4
the need for the application by consenting to an extension of time. In my opinion the information shown to have been
taking that course. available to the Crown could not have justified the Crown in

. . , - .. - - ~ ~ ~ ..., . .

The costs of the appeal against the single judge's dismissal of the application for extension of time were

principally occasioned, in my opinion, by the failure of those

representing the appellant on the hearing of that application

to present effectively to the single judge those grounds of

appeal against the convictions which raised a serious question

as to the legal soundness of the convictions. Something of

the same imperception was apparent on the hearing of the

appeals against conviction. I find nothing to suggest that

the Crown had failed in its duty to present to the single

judgs and then to this court the arguments which it was

appropriate that the Court take into consideration. The

- - - - .

grounds of the appeals against conviction rhich were upheld b y \

this Court founded on things done and things not done by the

learned judge before whom the appellant was tried and l	l
convicted. It was not shown that counsel for the Crown at trial had contributed to cause what this Court has concluded were errors in the learned trial judge's charge to the jury, except by failing, as counsel for the appellant failed, to
--
take exception at the trial to those errors in the learned trial judge's charge. In those circumstances the appropriate orders as to'the costs of the three proceedings - application for extension of time, appeal against dismissal of that application, and appeal against conviction - is that the parties bear their own costs.

Each motion is dismissed.	I certify that this and 'the 3 preceding pages are a true copy of the Reasons for Judgment of the Honourable Mr. Justice Jenkinson.
Dated:  3 July 1992

IN TWE FEDERAL COURT OF AUSTRALIA )

AUSTRALIAN CAPITAL TERRITORY ) NO. ACT G37 of 1990

DISTRICT REGISTRY	1
GENERAL DMSION	)

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPlTAL TERRlTORY

BElWEEN:  ANDREW JOSEPH HOBEICH . . - . -

1

Appellant

m. THE QUEEN

Respondent

CORAM:	JENKIh'SON, WECOX & HIGGINS JJ
PLACE:	CANBERRA
DATE:	3  July 1 9 9 2

- S A E R :

I

W1U=OX J: I have read the rysons for judgment on costs prepared by each of my l

colleagues. I accept that, in the case of a successful appeal against a conviction, the

Court has power to award costs against the Crown.

. .

I agree with Higgins J that the question whether that power should. be

~ . . . .. . ~ ~- ~ ........ ... .. .-

exercised in any particular case involves matters of discretion. It may well be, as the appellant submits, that the traditional reluctance of courts of criminal appeal to award costs to successful appellants requires reconsideration in the light of recent developments, including particularly the High Court's discussion of principle in

Latoudis v (1990) 170 CLR 534. But, like Jenkinson J, I would wish to take

that step only after full argument and in a- case where it clearly appears that the appeal was necessitated by errors for which the Crown was responsible. Like both my colleagues, I am of the opinion that this is not such a case.

Without indicating any attitude upon the general matters of principle

raised by counsel's submissions, I agree that the motion should be'dismissed $th

costs.

I certify that this and the preceding page is
a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate: P+

Dated:  1992

IN THE FEDERAL COURT OF AUSTRALIA	)
I
AUSTRALIAN CAPITAL TERRITORY	)
) No. ACT G37 of 1990
DISTRICT REGISTRY	i
1
GENERAL DIVISION	i

ON APPEAL FROMTHE SUPREME COURT

OF THE AUSTIULIAN CAPITAL TERRITORY

BETWEEN :  ANDREW JOSEPH HOBEICH

AND :	THE QUEEN
,

1   Respondent

CORAM :  Jenkinson, Wilcox and Higgins JJ

PLACE	:	Canberra
DATE	:	3 July 1992

-.

- REASONS FOR JUDGMENT

l

HIGGINS J '

I ,

.

I have had the advantage of reading, in draft, the Reasons

for Judgment of Jenkinson J.

I wodld only wish to add that I accept that this Court has . -

a discretion to award costs on an appeal of this kind.

Unsuccessful Crown appeals may attract an order for costs in f=vour of a respondent (see R v Whitworth (1988) 164 CLR 500; R v John Edmund Carruthers (ACT G 45 of 1988; Full Court; Federal Court; 28/10/88; unreported). I can see

no reason why a successful accused person who is an

appellant should not be treated similarly. There is no

.-

call presently to re-examine the rule of practice affirmed by this Court in R v Goia (1988) 81 ALR 656 concerning the award of costs upon the trial of a person on indictment or, at least, as to proceedings following arraignment. Whatever be the justification for that rule of practice,

--- -	the considerations of justice and equity underlying the
recent decision of Latoudis v Casey (1990) 170 CLR 534, will, no doubt, require a re-examination of it.

l

1

That rule of practice does not, in my view, prevent the consideration of the merits of the present application. That application should be decided in accordance with the principles underlying the case of Latoudis v Casey (supra)

In this case, the appellant succeeded on the hearing of he

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appeal because of matters not raised with the'trial judge. ,

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If they had been raised, it is at least possible that the

I

result may have been different. They should have been

to me that the appellant must bear responsibility for the	agitated by the appellant at trial. It, therefore, seems
fact that the appellate proceedings became necessary. It
is no answer to say that the Crown was similarly at fault. l

For those reasons I support the orders proposed by

Jenkinson J.

I certify that this and the

two preceding paQes are a true copy of the Reasons for Judgment of the Honourable Mr Justice Higgins.

Associate

Dated: 3 July 1992

ANDREW JOSEPH HOBEICH v THE QUEEN

No. ACT G37 of 1990

..

ON APPEAL FROM THE SUPREME COURT OF THE AUSTWIAN CAPITAL

TERRITORY

Counsel for the Appellant:	Mr R Mildren
Instructing solicitors:	Messrs Gilpin & Associates
Counsel for the Respondent:	Mr M Chilcott
Instructing solicitors:	ACT Director of Public
Prosecutions
Dates of Hearing:	14 November 1991
Date of Judgment:	3 July 1992