Jason Piccolotto v The Queen (No 2)
[2015] VSCA 182
•21 July 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0217
| JASON PICCOLOTTO | Appellant |
| v | |
| THE QUEEN (NO 2) | Respondent |
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| JUDGES: | REDLICH, SANTAMARIA and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 21 July 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 182 |
| JUDGMENT APPEALED FROM: | R v Piccolotto (Unreported, County Court of Victoria, Judge Chettle, 17 September 2014 (date of sentence)) |
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CRIMINAL LAW – Appeal successful, conviction quashed and new trial ordered – Appeal Costs Act 1998 – Discretion whether to grant indemnity certificate – Conduct of trial on behalf of the appellant – Whether appellant should be penalised for manner in which trial was conducted – Extent to which Board may consider costs of appeal and of new trial ‘to have been reasonably incurred’ – Section 14 Appeal Costs Act1998.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr G J Traczyk | C Marshall & Associates |
| For the Respondent | Ms S M K Borg | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
REDLICH JA
SANTAMARIA JA
BEACH JA:
Introduction
On 11 June 2015, this Court allowed the appellant’s appeal, quashed his convictions for false imprisonment and making a threat to kill, and ordered a retrial.[1] When judgment was delivered, there was no appearance for the appellant. In addition to quashing the appellant’s convictions and ordering a retrial, we gave directions that, if the appellant wished to apply for an indemnity certificate pursuant to the Appeal Costs Act 1998 (‘the 1998 Act’) then the appellant would be required to file written submissions in support of any such application. Further, and noting that the Crown (as respondent to the appeal) had no interest in any application the appellant might make under the 1998 Act, we stated that, if an application was made and written submissions were filed, the Court would be assisted by written submissions from the Crown as a contradictor.
[1]Piccolotto v The Queen [2015] VSCA 143 (‘Reasons’).
The appellant has now applied for an indemnity certificate pursuant to s 14 of the 1998 Act. Written submissions have been filed in support of that application. The Crown has filed submissions in response to the appellant’s submissions ‘as amicus curiae to assist the court’.
Background to the application
The background to this application may be briefly stated as follows. The appeal was allowed, and a retrial ordered, because the judge’s criticism of the appellant’s counsel so tainted the atmosphere of the trial that it could not be asserted that, when the jury retired to consider its verdict, the appellant had had a fair trial. As our reasons for judgment make plain, much of the problem that ultimately led to a retrial being ordered was caused by the appellant’s counsel. As we said in our reasons for judgment, ‘the trial judge was entitled to feel exasperated’.[2]
[2]Ibid [36].
In the circumstances, when delivering judgment, it seemed to us that the question of whether the appellant should be granted an indemnity certificate under the 1998 Act was a more involved question than is usually the case where an appeal has been allowed and a retrial ordered. Specifically, in requiring written submissions in support of any application for an indemnity certificate, the Court was concerned to explore the relevance of the way in which the trial was conducted by, and on behalf of, the appellant, to the question of whether or not the Court should grant a certificate.
The issues in this application
The issues in this application concern:
(a) the proper construction of s 14 of the 1998 Act; and
(b) whether, in all the circumstances, and having regard to the manner in which the appellant’s defence at trial was conducted, an indemnity certificate should be granted to the appellant.
Section 14 of the 1998 Act
Section 14 of the 1998 Act relevantly provides:
14Application for indemnity certificate if appeal against conviction is successful
(1)If an appeal to a superior court against a conviction for an indictable offence succeeds and the court quashes or sets aside the conviction, the appellant may, whether or not the court orders a new trial, apply to the court for, and the court may grant, an indemnity certificate in respect of costs.
(2)If, on an appeal referred to in subsection (1), the superior court orders a new trial, the appellant, in their application under that subsection for an indemnity certificate, may apply for the inclusion in that certificate of any additional costs that they will pay, or will be ordered to pay, as a consequence of the order for a new trial.
(3)An appellant granted an indemnity certificate under subsection (1) is entitled to be paid by the Board, on an application made to it by the appellant in the approved form—
(a)an amount equal to the appellant's own costs of the appeal; and
(b)any additional costs that the appellant pays, or is ordered to pay, as a consequence of the order for a new trial —
that the Board considers to have been reasonably incurred.
Plainly, the question of whether a certificate should be granted where a conviction has been quashed and a new trial ordered is discretionary. Indeed, s 37 of the 1998 Act expressly provides that the grant or refusal of an indemnity certificate by a court is in its discretion, and that no appeal lies against a grant or refusal by a court of such a certificate.
In his written submission, counsel for the appellant submitted that:
As a matter of statutory construction, it may be that ‘act, neglect or default of accused … ‘ is not a factor relevant to the grant of a certificate.
Such a construction is not surprising, bearing in mind that ss 16 and 17 clearly envisage situations which may be caused by conduct of the defendant; but s 14 deals with a situation which is outside the defendant’s control (ie, s 14 only comes into play if an appeal is successful, in general terms, he has suffered a miscarriage of justice).
The appellant’s submissions are based upon the proposition that other sections of the 1998 Act (ss 16 and 17 of the 1998 Act) give courts power to award certificates where criminal proceedings are discontinued or adjourned, but only if the reason for such discontinuance or adjournment ‘was not attributable in any way to the act, neglect or default [of an accused or that accused’s legal practitioner]’. The appellant submits that the absence of these disentitling words in s 14 compels a construction that any default on the part of the appellant or his counsel that led to the convictions being quashed and a new trial ordered cannot be taken into account in the court’s exercise of its discretion to grant or refuse a certificate.
That submission must be rejected.
In Oakley v 3AW Southern Cross Radio Pty Ltd,[3] this Court accepted that the conduct of a party or its lawyers was capable of being a factor disentitling that party to an indemnity certificate under s 13 of the Appeal Costs Act 1964 (‘the 1964 Act’). Oakley was a case where the defendant in a defamation trial, that was to be heard by a judge and jury, persuaded the trial judge to enter a verdict for the defendant without empanelling the jury. The Court of Appeal allowed the plaintiff’s appeal and remitted the proceeding to the County Court for trial. The losing respondent/defendant applied for a certificate under s 13 of the 1964 Act. Brooking JA, delivering the reasons of the Court said:
In our view, the application to withdraw this case from the jury should never have been made, especially to an inexperienced judge. It is highly surprising and very unfortunate that this case was withdrawn from the jury. The respondent should not have a certificate. The application for a certificate under the Appeal Costs Act 1964 is refused.[4]
[3][1999] VSCA 96 (Brooking, Charles and Batt JJA).
[4]Ibid [28].
Section 14 of the 1998 Act is a successor provision to s 13 of the 1964 Act. For present purposes, the sections are relevantly identical. Similarly, ss 16 and 17 of the 1998 Act are successor provisions to s 18 of the 1964 Act. Again, ss 16 and 17 of the 1998 Act are relevantly identical to s 18 of the 1964 Act in that both Acts provided that indemnity certificates for the costs incurred in respect of adjournments of criminal proceedings were not to be granted if there was some act, neglect or default on the part of the accused or his or her representatives.
The discretion given under s 14 of the 1998 Act is unconfined. As with the same discretion given by the provisions of the 1964 Act, it seems to us that the conduct of a successful appellant at trial and/or his or her legal representatives can, in appropriately egregious circumstances, be taken into account in determining whether or not to grant an indemnity certificate.
A potential conflict
The written submissions filed on behalf of the appellant appear to us to have been drawn first with an eye to the appellant’s counsel’s interests, and then with an eye to the appellant’s interests. The potential for conflict is obvious. If the appellant was now represented by counsel different from his trial counsel, it may be that such new counsel would have sought to submit that if there was any default on the part of trial counsel, the appellant should not be visited with the consequences of that default, committed as it was by trial counsel. Indeed, it might have been submitted that the appellant, at trial, merely relied upon his counsel to conduct a proper defence, and therefore should not be visited with the consequences of any part of the defence that this Court might now regard as less than satisfactory.
There being no suggestion of any conflict or difference between the appellant and his counsel, it remains for us to consider whether the appellant should or should not be visited with the consequences of some or all of those parts of the appellant’s counsel’s conduct at trial that we have found to be less than entirely satisfactory. We should say for the sake of completeness that all of this argument might have been obviated if s 410 of the Criminal Procedure Act 2009 (which permits a court to disallow legal costs in respect of conduct ‘before the commencement of a trial’) was in terms equivalent to s 29 of the Civil Procedure Act 2010 or r 63.23 of the Supreme Court (General Civil Procedure) Rules 2005, which permits a court to order costs against the legal practitioner or that a legal practitioner not charge costs that are improperly incurred or wasted as a result of the act, neglect or default of that legal practitioner at any time during the conduct of a civil proceeding (not merely before the commencement of the trial). It may be that consideration should be given to amending s 410 of the Criminal Procedure Act 2009 to delete from paragraph (b) of sub-s (1) the words ‘before the commencement of trial’. Again, for the sake of completeness, we note that there is no such temporal limitation in respect of criminal proceedings in the Magistrates’ Court.[5]
[5]See s 410(1)(a) of the Criminal Procedure Act 2009.
The resolution of the present application
In his written submissions, counsel for the appellant cavils with the conclusions we made in respect of his conduct of the trial. In the light of his submissions we have revisited each of the conclusions critical of counsel in our reasons for judgment. We see no reason to depart from our earlier expressed views.
Next, counsel submitted:
It should be borne in mind that the requirement to show a miscarriage of justice so that s 14 [of the 1998 Act] comes into play, is always subject to the proviso in s 568 of the Crimes Act and that in this case no such question ever arose (ie, it was never argued that the evidence was so overwhelming that a conviction was inevitable).
The first point to be made is, of course, that s 568 of the Crimes Act 1958 was repealed on 1 January 2010, five and a half years ago. Secondly, even if s 568 was still in force, the appellant’s submission overlooks what was said by the High Court in Weiss v The Queen.[6] In Weiss, the High Court noted that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt.[7]
[6](2005) 224 CLR 300 (‘Weiss’).
[7]Ibid 317 [45]–[46].
The question of whether the evidence was so overwhelming that a conviction was inevitable was not relevant to the hearing of this appeal because if, by reason of the appellant’s barrister’s conduct at trial, the judge was provoked into making statements that ultimately resulted in there being a real risk that the appellant had not had a fair trial, the strength of the evidence against the appellant would not easily be held to overcome the deficiency identified in the trial process in this case.[8]
[8]See further Baini v The Queen (2012) 246 CLR 469, 480–81 [30]–[33].
It could fairly be said on behalf of the appellant that ordinarily when this Court quashes a conviction and orders a retrial, an indemnity certificate will be granted. The provisions of s 14 do not permit the court to limit the operation of the certificate. Section 14 operates on its own terms once a certificate is granted. Again, it may be useful to consider whether the provisions of the 1998 Act should be amended to permit a court to grant a certificate of more limited ambit than that provided for by the current provisions.
All of that said, while the conduct of the appellant’s counsel at trial has caused us significant concern, ultimately we are not persuaded that the appellant should be deprived of a certificate merely because of the conduct of his counsel as we have described it in our earlier reasons for judgment.
The indemnity certificate we will grant requires the Board to pay an amount equal to the appellant’s costs of the appeal and any additional costs that the appellant pays as a consequence of the order for a new trial that the Appeals Costs Board ‘considers to have been reasonably incurred’. We would simply say that, having regard to the way the appellant’s counsel conducted the first trial, perhaps greater scrutiny should be given to whether such costs as are incurred in the retrial by the appellant are in truth ‘reasonably incurred’.
Conclusion
We will grant the appellant an indemnity certificate pursuant to s 14 of the Appeal Costs Act 1998.
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