JC v Director of Public Prosecutions (NSW)

Case •

[2014] NSWCA 228

•

17 July 2014

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: JC v Director of Public Prosecutions (NSW) [2014] NSWCA 228
Hearing dates:16 June 2014
Decision date: 17 July 2014
Before: Beazley P at [1];
Basten JA at [2];
Ward JA at [45]
Decision:

(1) Set aside the judgment of the District Court delivered on 26 July 2013 dismissing an application for a certificate under the Costs in Criminal Cases Act 1967 (NSW).

(2) Declare that, in the circumstances of the case, the Court had power to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act.

(3) Remit the matter to the District Court to be determined in accordance with the declaration of this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

ADMINISTRATIVE LAW - judicial review - power to grant costs certificate may be granted after commencement of trial - refusal to consider application for costs certificate on the basis that no trial had commenced - whether failure to exercise jurisdiction - Costs in Criminal Cases Act 1967 (NSW), s 2

CRIMINAL LAW - procedure - application for costs certificate - power to grant costs certificate after commencement of trial - multiple accused arraigned before judge and entered pleas of not guilty - indictment withdrawn before jury empanelled - whether trial had commenced - whether "trial" limited to hearing before a jury - whether trial commences when accused arraigned and enters plea - Costs in Criminal Cases Act 1967 (NSW), s 2

STATUTORY INTERPRETATION - principles - reading provision in context - meaning of "trial" in one Act - reference to another Act regarding the conduct of trials - relationship between Acts for the purposes of interpretation - Criminal Procedure Act 1987 (NSW), s 130 - Costs in Criminal Cases Act 1967 (NSW), s 2

WORDS AND PHRASES - "trial" - ordinary meaning of "trial" - whether meaning of "trial" includes when accused arraigned and enters plea - Costs in Criminal Cases Act 1967 (NSW), s 2
Legislation Cited: Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 4
Crimes Act 1900 (NSW), s 395
Crimes Legislation Amendment (Procedure) Act 1997 (NSW), Sch 2 [2]
Criminal Code (Tas), s 351
Criminal Procedure Act 1986 (NSW), ss 19, 53, 127, 129, 130, 130A, 131, 132, 154; Ch 3, Pt 3, Div 3
Criminal Procedure Amendment (Case Management) Act 2009 (NSW), Sch 1 [3]
Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW), Sch 1 [1]
District Court Rules 1973 (NSW), Pt 53, rr 10, 10D, 11
Evidence Act 1995 (NSW), s 192A
Evidence Amendment Act 2007 (NSW), Sch 1 [77]
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1
Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378
Director of Public Prosecutions (SA) v B [1998] HCA 45; 194 CLR 566
Director of Public Prosecutions v Howard [2005] NSWSC 987; 64 NSWLR 139
Donaldson v State of Western Australia [2005] WASCA 196
Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
KS v Veitch [2012] NSWCCA 186
Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518
Newell v The King [1936] HCA 50; 55 CLR 707
Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24
PM v The Queen [2007] HCA 49; 232 CLR 370
R v Howard (1992) 29 NSWLR 242
R v Nicolaidis (1994) 33 NSWLR 364
State of New South Wales v Williamson [2012] HCA 57; 248 CLR 417
Sweeney v Fitzhardinge [1906] HCA 73; 4 CLR 716
TKWJ v The Queen [2002] HCA 46; 212 CLR 124
Texts Cited: Government Gazette, No 1, 2 January 1998, p 3
Category:Principal judgment
Parties: JC (First Applicant)
JS (Second Applicant)
MG (Third Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)
Representation: Counsel:
Mr D Randle (Applicants)
Mr I Bourke (First Respondent)
Solicitors:
Anderson Boemi Lawyers (Applicants)
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor's Officer (Second Respondent)
File Number(s):CA 2013/320922
 Decision under appeal 
Jurisdiction:
9101
Date of Decision:
2013-07-26 00:00:00
Before:
Armitage DCJ
File Number(s):
2011/401144; 2011/399356; 2011/402734

Judgment

  1. BEAZLEY P: I agree with Basten JA.

  1. BASTEN JA: The applicants seek to set aside a judgment of the District Court dismissing their claim for a certificate under the Costs in Criminal Cases Act 1967 (NSW) ("the Costs Act").

  1. In December 2011 four young persons (the applicants and one other) were charged with sexual offences under the Crimes Act 1900 (NSW). On 19 January 2012 they appeared before the Children's Court at Parramatta. On 31 May 2012 they were committed for a trial in the Parramatta District Court. On 21 June 2012 they appeared before Judge Sides QC, on which occasion they were arraigned and entered pleas of not guilty to all charges. The matter was fixed for hearing 26 November 2012.

  1. In late June, a "no bill" application was made to the Director. On about 21 November 2012 the Director determined that the prosecution should be terminated. When the matter came before Sides DCJ on 26 November 2012 the prosecutor advised the Court of that decision, with the result that the accused were not further arraigned before a jury panel.

  1. Thereafter, the three applicants sought a certificate under the Costs Act, which would have entitled them to seek payment of their costs from consolidated revenue. The application came before Armitage DCJ on 26 July 2013. The application was dismissed on the basis that the Court had no jurisdiction to grant a certificate. There is no right of appeal from such a judgment, but the applicants sought judicial review in this Court's supervisory jurisdiction, pursuant to s 69 of the Supreme Court Act 1970 (NSW).

Issues

  1. The case turns on the proper construction of s 2 of the Costs Act which, in November 2012, read (as it still does):

2 Certificate may be granted
(1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken, or
(b) where, on appeal, the conviction of the defendant is quashed and:
(i) the defendant is discharged as to the indictment upon which he or she was convicted, or
(ii) the information or complaint upon which the defendant was convicted is dismissed,
grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
(3) In this section, trial, in relation to proceedings, includes a special hearing conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 and also includes preliminary proceedings that form part of the trial, for example, a voir dire.

  1. The short point raised by the present application is whether the decision by the Director that no further proceedings be taken was made "after the commencement of a trial in the proceedings".

  1. The Director submitted that the word "trial" had an ordinary meaning with respect to a criminal offence tried on an indictment, namely the hearing at which a jury was empanelled and witnesses called. That was said to accord with the common law, in the absence of any relevant statutory provision: Donaldson v State of Western Australia [2005] WASCA 196; 31 WAR 122 at [41] (Roberts-Smith JA). However, as the cases discussed in Donaldson at [42]-[60] demonstrate, the question rarely arose under the common law, at least in modern times, but rather has involved the application of legislation. Thus, the question has arisen with respect to legislation permitting majority verdicts, abolishing the right of an accused to give unsworn evidence and changing the rules with respect to jury directions.

  1. The applicants, on the other hand, contended that a trial commenced when a person committed for trial, with respect to whom an indictment had been presented, was arraigned and pleaded not guilty. This conclusion flowed, it was submitted, from the statutory scheme of the Costs Act, read in the context provided by the Criminal Procedure Act 1986 (NSW).

  1. The applicants and the Director were on common ground in two respects. First, each accepted that the question was ultimately one of statutory construction; secondly, there was no authoritative decision of this Court (or the High Court) resolving the issue.

  1. The present language of the Costs Act owes much to its legislative history, in the course of which amendments have been made for specific purposes and in language which has not always been chosen with attention to the scope of the provision, but rather with an eye firmly fixed on a specific problem to be resolved. Nevertheless, it is preferable to start with the current form of s 2 before turning to its predecessors. Further, before turning to the elements in s 2 central for present purposes, it is convenient to identify the purpose of the overall statutory scheme. The proper approach was recently identified in the joint reasons of Crennan, Bell, Gageler and Keane JJ in Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 at [25] (albeit in relation to provisions in the Migration Act 1958 (Cth)):

"The numerous amendments that have been made to the Act form part of its legislative history and bear legitimately on its construction. They are to be construed as part of the Act, so as to be read together 'as a combined statement of the will of the legislature'. The timing of amendments might assist in determining the 'hierarchy' of apparently conflicting provisions of the Act as amended, but notions of 'implied repeal' have no place."

The statutory scheme

  1. There are provisions in the Criminal Procedure Act which allow for an award of costs in criminal proceedings. Such orders are made against the unsuccessful party. The grant of a certificate under the Costs Act is different: it involves the expression of an opinion by a judge or magistrate, on the basis of which the Director-General may, on application, make a payment out of consolidated revenue with respect to costs incurred in the proceedings by the party to whom the certificate was granted: s 4(1). The opinion to be expressed in the certificate is two-fold, as provided in s 3:

3 Form of certificate
(1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate:
(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and
(b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.

  1. Turning to the language of s 2, the applicants relied on two related aspects of subss (2) and (3). First, they noted that in subs (2) a certificate could be granted following an acquittal or discharge at any time during a trial, "whether a hearing on the merits of the proceedings has occurred or not." Further, they noted that the inclusive definition of "trial" in subs (3) included "preliminary proceedings that form part of the trial, for example, a voir dire."

  1. In the applicants' submission, in order to comprehend the scope of this legislative scheme, it was important to note the provisions of the Criminal Procedure Act which permitted "preliminary proceedings", such as a voir dire, to occur after the person charged was first arraigned and before a jury was empanelled.

  1. For this purpose, one aspect of the general law should be noted. In Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23 (a case involving the power of a trial court to stay proceedings for delay) Brennan J noted at 36:

"Absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment."

  1. As the Court of Criminal Appeal noted in KS v Veitch [2012] NSWCCA 186; 300 ALR 181 at [17], an indictment is presented by filing it with the Registrar of the Court: Criminal Procedure Act, s 127; District Court Rules 1973 (NSW), Pt 53, r 10D. Practices have varied with respect to the point at which an accused named in an indictment is arraigned: see R v Howard (1992) 29 NSWLR 242 at 247 (Gleeson CJ, Sheller JA and Lee AJ). However, arraignment involves a court proceeding in which an indictment is read to the accused and he or she is asked to plead guilty or not guilty. The effect of a not guilty plea is provided in s 154 of the Criminal Procedure Act:

154 Plea of "not guilty"
If an accused person arraigned on an indictment pleads "not guilty", the accused person is taken to have put himself or herself on the country for trial, and the court is to order a jury for trial accordingly.

  1. In R v Nicolaidis (1994) 33 NSWLR 364 at 367, Gleeson CJ, after setting out the terms of s 395 of the Crimes Act (the predecessor to s 154 of the Criminal Procedure Act), stated:

"The arraignment marks the commencement of a trial by jury. Persons who are tried in the District Court for indictable offences are formally arraigned, in the presence of the jurors in waiting, and immediately before the jury is empanelled. Of course, a jury will only be empanelled if the plea is one of not guilty.
Notwithstanding the procedure of arraignment that takes place at the commencement of a trial, it is ... the practice in the District Court for persons charged with indictable offences to be arraigned within a relatively short time after having been committed for trial and sometimes many weeks or even months in advance of the hearing date of the trial. In such cases, assuming the accused adhered to a plea of not guilty, there would be at least two, and perhaps more, arraignments, the last being at the commencement of the trial. ... No doubt one of the reasons for the procedure of early arraignment after committal is to permit the District Court to take early control of cases for the purpose of pre-trial management: cf Jago v District Court of New South Wales ... at 37 and note the provisions of Pt 53 of the District Court Rules 1973."

(Nicolaidis involved the operation of s 53 of the Criminal Procedure Act, as in force in 1992, which provided for a "sentence indication hearing" which could be sought by an accused "before or at arraignment": the reference was held to be to the first arraignment.)

  1. In TKWJ v The Queen [2002] HCA 46; 212 CLR 124 the appellant attempted to establish that a miscarriage of justice had occurred because trial counsel for the accused had failed to obtain "an advance ruling" from the trial judge as to the effect of leading character evidence in the defence case. Reliance was placed upon Pt 53, rr 10 and 11 of the District Court Rules to support the availability of such a procedure. Rule 10 empowered the court to make interlocutory orders prior to "the day appointed for the hearing" and further provided that, where practicable, application for such orders should be made before that day. TKWJ was understood to cast doubt on the power of the court to make 'advance rulings' binding on the trial judge.

  1. The jurisdiction and powers of the court after presentation of an indictment are now found in s 130 of the Criminal Procedure Act, in the following terms:

130 Trial proceedings after presentation of indictment and before empanelment of jury
(1) In this section, court means the Supreme Court or District Court.
(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused person is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.
(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:
(a) the proceedings are part of the trial of the accused person, and
(b) the accused person is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.

  1. Section 130 began as s 19 of the Criminal Procedure Act, with effect from 4 January 1998: Crimes Legislation Amendment (Procedure) Act 1997 (NSW), Sch 2 [2]; Government Gazette, No 1, 2 January 1998, p 3. The precise scope and operation of the provision may not have been fully considered at the trial (in May 1998) of the matter which came to the High Court as TKWJ. There was no reference to that provision in the appeal judgments. In any event, a new provision, s 130A, was inserted in the Criminal Procedure Act commencing on 1 December 2005, providing that in respect of prescribed sexual offences a "pre-trial order" made by a judge is binding on the trial judge unless the latter forms the opinion that it would not be in the interests of justice for the order to be binding: Criminal Procedure Amendment (Sexual Offence Case Management) Act 2005 (NSW), Sch 1 [1]. Commencing on 1 February 2010, s 130A was amended to make it generally applicable in criminal proceedings: Criminal Procedure Amendment (Case Management) Act 2009 (NSW), Sch 1 [3]. (See also new s 192A of the Evidence Act 1995 (NSW), introduced by the Evidence Amendment Act 2007 (NSW), Sch 1 [77].)

Commencement of trial on indictment

  1. Arraignment for the purpose of taking a plea will determine whether the accused is to go to trial. The effect of a 'not guilty' plea is thus to require an order for a jury trial: s 154. That trial will be before a jury, absent a specific order for a trial by judge alone: Criminal Procedure Act, ss 131 and 132. On one view, absent statutory provision to the contrary, the trial would not be thought to commence at that point, although there are statements in the cases to the effect that arraignment will mark the start of a trial on the charges alleged in the indictment: see, eg, PM v The Queen [2007] HCA 49; 232 CLR 370 at [38]. However, that statement was made with respect to an indictment to which a plea was taken immediately preceding the empanelling of a jury: at [13]. It is thus not decisive on the effect of an earlier arraignment.

  1. On the other hand, there is long standing authority for the proposition that a trial may commence on the date of an accused's first arraignment before the court: Newell v The King [1936] HCA 50; 55 CLR 707 at 712 (Latham CJ and Dixon J), 713 (Evatt J). It is true that the Criminal Code (Tas) in issue in that case contained a provision that "[t]he trial shall be deemed to begin when the accused is called upon to plead": s 351(6), set out in precise terms in Director of Public Prosecutions (SA) v B [1998] HCA 45; 194 CLR 566 at [16] (Gaudron, Gummow and Hayne JJ). The joint reasons in B then noted that there was "no equivalent provision in South Australia." A footnote to the Tasmanian provision read, "cf Crimes Act 1900 (NSW), s 395". The footnote also referred to equivalent provisions in Victoria and Queensland and to cases in those States and in Western Australia: there is little to be gained from a review of the legislative schemes in different jurisdictions. That point is made by the joint reasons in B which, dealing with South Australian legislation, noted the statement by King CJ in Attorney-General's Reference No 1 of 1988 (1988) 49 SASR 1 at 5-6, that:

"In this State, therefore, the trial commences when the accused having been arraigned before the judge who is try him, that judge embarks upon the hearing and determination of any preliminary questions or upon the empanelling of the jury."

  1. Having set out that passage at [15], the joint reasons then stated at [17]:

"It may be that the answer to the question - when does the trial begin - requires consideration of the context within which that question arises and does not admit of an answer of the generality given in Attorney-General's Reference No 1 of 1988."

  1. Even the Tasmanian provision contained a latent ambiguity because an accused might be arraigned on more than one occasion and, at least in modern times, frequently is. However, the question in Newell was whether a statutory amendment permitting majority verdicts applied to Mr Newell's trial in circumstances where he had entered his plea prior to the commencement of the legislation. The Court held that, whether to be described as a procedural amendment or not, such a provision should not be given retrospective effect to vary a central feature of a criminal trial which had already begun. The context thus provides a ready explanation of the decision.

  1. The submissions in this Court focused on the effect of s 130(3) of the Criminal Procedure Act. That too, read in isolation, might be considered ambiguous. Referring to orders made "after the indictment is presented to commence the trial and before the jury is empanelled" might refer only to the last arraignment immediately preceding the process of empanelling the jury. However, it seems clear from subs (2) that orders may be made by the court "for the purposes of the trial" as soon as the indictment has been presented and the accused is arraigned (for the first time). The phrase "as soon as", taken with the requirement that an indictment be presented within four weeks of committal for trial (s 129(2)) indicates that the making of orders referred to in s 130(2) is not limited to those immediately preceding the empanelling of a jury. That purpose is reflected in the period identified in subs (3) which commences "after the indictment is presented" and by the reference back implicit in the phrase "such orders". Accordingly, the statement that such proceedings form "part of the trial" indicates that the trial must commence prior to the arraignment before a jury, or before a pool of jurors waiting to be empanelled.

  1. The Director accepted this last conclusion, but submitted that it did not avail the applicants in the present case: there were no orders made by the Court for the purposes of the trial prior to the date fixed for hearing. The position might have been different, the Director accepted, if there had been a voir dire or some other advance ruling, for example, pursuant to s 192A of the Evidence Act, as to the admissibility of evidence proposed to be adduced. There was none, he submitted, in the present case.

  1. This submission should not be accepted, for two reasons. First, the primary purpose of s 130(2) is to declare the point from which the court has jurisdiction with respect to "the conduct of proceedings on indictment". As appeared from the reasoning of Brennan J in Jago, the point at which the Court has jurisdiction may be a matter of importance. Thus in Jago (in 1989) Brennan J held that "[t]he Criminal Procedure Act confers no power on the District Court to regulate any aspect of the exercise of the powers of prosecution before an indictment is presented": at 37. Indeed, he doubted the legal effect of listing a matter before presentation of the indictment. According to that reasoning, absent presentation of an indictment and, in the terms of s 130, arraignment of the accused, the court may have no power to make an order fixing a date for trial. One effect of such an order is to require that the accused, if on bail, attend at court on the day fixed. Accordingly, s 130 should not be read in a restricted fashion as limited to orders relating to evidence or otherwise dealing with matters which could be dealt with in the course of a hearing, albeit in the absence of the jury.

  1. Secondly, if that is so, both taking a plea and fixing a date for trial involve proceedings and, in the latter case an order, falling within the scope of s 130. Both steps were taken in the present case on 21 June 2012. It follows that the proceedings on that date constituted "part of the trial of the accused person", pursuant to s 130(3).

Operation of Costs Act, s 2

  1. That suggests that the applicants are entitled to succeed. However, before reaching that conclusion it is necessary to address two further matters of construction. First, as was accepted by the applicant, there are a number of provisions in the Criminal Procedure Act which use the term "trial" in a more limited sense and in contrast to "pre-trial" proceedings. For example, s 130A refers to a "pre-trial order" that is "binding on the trial judge", subject to certain conditions. A pre-trial order is defined to mean "any order made after the indictment is first presented but before the empanelment of a jury for a trial": s 130A(4). Many case management provisions use similar terminology: see Ch 3, Pt 3, Div 3.

  1. Secondly, it is necessary to consider the history of the Costs Act in order to determine whether some more limited reading should be given to the phrase "the commencement of a trial" in s 2(1)(a). (It is convenient to consider the relevance of the provisions of the further Criminal Procedure Act after addressing this issue.)

  1. Since its enactment in 1967, the Costs Act has had two consistent elements, relevantly for present purposes. First, it has applied to offences whether punishable summarily or upon indictment; secondly, it has applied where there is a successful outcome for the person charged, whether at trial or as a result of an appeal. The first factor is of more significance for present purposes, because it requires that the language now found in s 2(1)(a) apply to summary proceedings, whether in the Local Court or the Supreme Court, and to proceedings dealt with on indictment, whether before a judge and jury or judge alone.

  1. As first enacted, the trial limb of s 2 applied where a defendant "after a hearing on the merits, is acquitted or discharged as to the information then under inquiry". That language had two features which have changed. First, it only operated where there had been a hearing on the merits; secondly, the language of discharge following an inquiry was apt to cover committal proceedings as well as trials. The current language has been held not to apply to a committal proceeding: Director of Public Prosecutions v Howard [2005] NSWSC 987; 64 NSWLR 139 (Hoeben J).

  1. In 2002, s 2 of the Costs Act was amended by the Courts Legislation Amendment Act 2001 (NSW), which commenced on 18 January 2002. The existing s 2 became s 2(1) and two further subsections were added. It is convenient to set out the relevant parts in full:

2 Certificate may be granted
(1) The Court or Judge or Justice or Justices in any proceedings relating to any offence, whether punishable summarily or upon indictment, may:
(a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned ...
grant to that defendant a certificate under this Act ....
(2) For the avoidance of doubt, a certificate may be granted in accordance with subsection (1)(a) following an acquittal or discharge of a defendant at any time during a trial, whether a hearing on the merits of the proceedings has occurred or not.
(3) In this section, trial, in relation to proceedings, includes preliminary proceedings that form part of the trial, for example, a voir dire.

  1. The scope of the power to grant a certificate was thus significantly expanded so that the relevant precondition was not the completion of a hearing on the merits, but rather the commencement of a trial in the proceedings, an important element of the current language. The amendment, however, did not bring the relevant point in time back to the commencement of the proceedings. This was clearly deliberate, as in s 3, since 1967, the opinion required to be specified in the certificate related to the reasonableness of instituting the proceedings if, "before the proceedings were instituted", the prosecution had had certain information.

  1. Accepting that the use of the term "trial" and the reference to "proceedings ... in relation to the offence" (in place of "a hearing ... as to the information then under inquiry") was designed to remove a power to grant a certificate with respect to committal proceedings, then the reference in subs (3) to "preliminary proceedings that form part of the trial, for example, a voir dire" would, consistently, exclude committal proceedings which do not form part of the trial on any view of that term. The question remains as to what proceedings might properly fall within the description of "preliminary proceedings that form part of the trial".

  1. The Costs Act cannot properly be construed without reference to the legislative scheme for the conduct of trials, both summary and on indictment: Sweeney v Fitzhardinge [1906] HCA 73; 4 CLR 716 at 726 (Griffith CJ); Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [96]-[97] (Kiefel J); State of New South Wales v Williamson [2012] HCA 57; 248 CLR 417 at [28]-[29] (French CJ and Hayne J). Such cognate legislation was primarily the Criminal Procedure Act.

  1. It is not necessary to consider whether amendments to the Criminal Procedure Act which occurred after the introduction of the critical language in s 2 of the Costs Act might be relevant, on the basis that the Costs Act should be given an ambulatory effect, thus picking up variations in criminal procedure adopted after its enactment. At the relevant date, the Criminal Procedure Act contained language which readily fitted within the terms of ss 2(2) and 2(3) of the Costs Act. At that date s 130 (then s 19) of the Criminal Procedure Act dealt with proceedings which could clearly be described as "preliminary proceedings" and stated that those proceedings "are part of the trial of the accused": s 19(3)(a), now s 130(3)(a).

  1. A further amendment (the final amendment relevant for present purposes) was introduced by the Courts Legislation Miscellaneous Amendments Act 2002 (NSW), which commenced on 20 December 2002. That amendment introduced a second limb in s 2(1)(a), by adding the words "or a direction is given by the Director of Public Prosecutions that no further proceedings be taken". The purpose of this provision is evidently to permit a certificate to be granted where a prosecution does not proceed because the Director has made a decision that no further proceedings be taken. (There may be uncertainty as to whether the decision relates to the offence charged, or the conduct the subject of the charge, but that is not presently in issue.)

  1. The submissions of the parties proceeded on the basis that the second limb was in the alternative to the defendant being acquitted or discharged and thus was subject to the temporal requirement as to the commencement of a trial. On that reading, the new words may have been by way of clarification rather than expansion: at least with respect to an indictable offence, the trial does not commence until the accused has been arraigned, after which, if the prosecution does not proceed, there must be a step involving the acquittal or discharge of the accused. In any event, subject to the temporal condition, that language is apt to cover a decision taken by the Director not to prosecute, as occurred in the present case. Accordingly, neither this amendment (nor any of the subsequent amendments) requires any variation of the conclusion that the definition of "trial" in s 2(3) was consistent with the language of what is now s 130(3) and thus s 2 applies with respect to the post-arraignment proceedings in the present case.

  1. Because it is the express language of s 130 which is to be found in the Costs Act, the fact that other provisions in the Criminal Procedure Act distinguish trial and pre-trial processes is not significant. Indeed, it is the purpose (as the Director accepted) of s 130(3) to pick up such pre-trial orders as "part of the trial". There is no reason to conclude that the language of the Costs Act, relevantly enacted after the introduction of s 130(3), was not intended to adopt the scheme of criminal proceedings then reflected in s 130.

Conclusions

  1. It follows that the primary judge was in error in determining that he had no jurisdiction to grant a certificate under the Costs Act. The applicants sought an order quashing that determination: that order should be made. The applicants also sought an order in the nature of mandamus directing that the District Court, constituted by the primary judge, determine the application for a certificate. There is no need for an order in that form as there is no reason to doubt that the application, which remains outstanding, will be dealt with by the District Court. No doubt the applicants would favour a return of the matter to Judge Armitage on the basis that he is familiar with the circumstances of their cases and has indicated a tentative view in favour of granting a certificate had he the power to do so.

  1. Where there has been a hearing on the merits, it will often be desirable that an application under the Costs Act be dealt with by the judge before whom the matter was heard. That consideration does not arise in the present case. Nor were the circumstances of the hearing of the costs application such as to make it essential, or even desirable, for the efficient administration of justice, that the matter return to the primary judge. Even were that circumstance established, the listing of the application in the District Court would properly be a matter for that Court and not for direction by this Court. Further, the expression of preliminary views by the primary judge is not of itself a reason to refer the matter back to him: cf Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11; 215 CLR 518 at [17] (Gleeson CJ), [39] (McHugh J) and [61] (Gummow and Hayne JJ).

  1. Perhaps because the subject matter of the proceedings in the District Court related to a criminal indictment, the applicants did not seek costs in this Court. Accordingly no order should be made. However, in the normal course, they would have been entitled to an award of costs of the proceedings in this Court: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 at [31]-[32]. If any such order is sought, and it cannot be dealt with by consent, the applicants can make application to vary this judgment within 14 days, in accordance with the Uniform Civil Procedure Rules 2005 (NSW), r 36.16(3A).

  1. The Court should make the following orders:

(1) Set aside the judgment of the District Court delivered on 26 July 2013 dismissing an application for a certificate under the Costs in Criminal Cases Act 1967 (NSW).

(2) Declare that, in the circumstances of the case, the Court had power to grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act.

(3) Remit the matter to the District Court to be determined in accordance with the declaration of this Court.

  1. WARD JA: I agree with Basten JA.

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Decision last updated: 17 July 2014

Most Recent Citation
Cases Cited

15

Statutory Material Cited

12

Donaldson v The State of Western Australia [2005] WASCA 196
Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24
Jago v District Court (NSW) [1989] HCA 46