Michael Dudarec v The Queen - [2013] QDC 166

DISTRICT COURT OF QUEENSLAND

CITATION:

Michael Dudarec v The Queen [2013] QDC 166

PARTIES:

MICHAEL DUDAREC

Applicant

v

THE QUEEN
Respondent

FILE NO/S:

82/2013

DIVISION:

Criminal

PROCEEDING:

Application for Costs

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19^th July 2013

DELIVERED AT:

Maroochydore District Court

HEARING DATE:

4 April 2013

JUDGE:

Long SC, DCJ

ORDER:

There is no power to make the order sought by the application, with the consequential order that the application is dismissed.

CATCHWORDS:

CRIMINAL LAW – COSTS - APPLICATION BY ACCUSED - WHETHER POWER TO AWARD COSTS AGAINST CROWN - where applicant seeks an order for costs against the Crown, pursuant to s 694(c) of the Criminal Code - whether the Crown is liable to pay costs - whether the indictment presented was an ex officio indictment and/or within the meaning of s 695 of the Criminal Code – whether the provisions of Chapter 70 of the Criminal Code are applicable

Criminal Code Act 1899 (Qld) s 1, s 560, s 561, s 562, s 563, s 567, s 660, s 687, s 694, s 695

Criminal Law Amendment Act 1997, No 3 of 1997

Criminal Proceeds Confiscation Act 2002 (Qld) s301 – 310

Gouldham v Sharrett [1966] WAR 129 at 136

R v Boulle [2006] QSC 253 at [19], [43]

R v His Honour Judge Kimmins ex parte Attorney-General [1980] Qd R 524 at [525]

R v Jackson [1962] WAR 130 at [130] – [131]

R v Webb [1960] Qd R 443 at [447]

R v Foley [2003] 2 Qd R 88 at [25]

COUNSEL:

A Nelson for the Applicant

S Bain for the Respondent

SOLICITORS:

Gilfoyle Solicitors for the Applicant

Office of the Director of Public Prosecutions for the Respondent

Introduction

This application is for:
“An order pursuant to s 694(c) of the Criminal Code 1899 (Qld) the Crown pay the costs of the accused’s defence fixed in the sum of $6,743.70”.

The Circumstances

It is, as far as can reasonably be ascertained, an unprecedented application in Queensland. As was confirmed in R v His Honour Judge Kimmins ex parte Attorney-General,[1] the general rule in criminal cases is that the Crown neither pays nor receives costs.[2] Although the Court of Appeal was not prepared to endorse resort to civil procedural rules or the Supreme Court Act 1867-1973 or the District Courts Act 1967-1976, as effecting any abrogation of the prerogative right of the Crown not to pay costs (by express words or any necessary implication), it was observed that:
“In Queensland up until the enactment of the Criminal Code in 1899 there was no power in Queensland to order costs for or against the Crown in criminal cases. The Criminal Code did not alter the position in anything other than special circumstances. There is provision in the Criminal Code for the payment of costs in certain isolated instances (see for example ss 660, 661, 694) …”[3]

However, the position remains that there appears to be no precedented instance of any such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Dudarec v The Queen

Details

AGLC: Michael Dudarec v The Queen [2013] QDC 166
Case: [2013] QDC 166
Decision Date: 19th July 2013

CaseChat Overview and Summary

The case of Michael Dudarec v The Queen involved the applicant seeking an order for costs against the Crown, pursuant to section 694(c) of the Criminal Code. The nature of the dispute was the applicant's request for costs from the Crown, which he claimed were owed due to the proceedings against him. The matter was heard in the relevant court, which had to determine the legal issues arising from the applicant's request.

The primary legal issues the court had to decide were whether the Crown was liable to pay costs in this case and whether the indictment presented was an ex officio indictment and/or within the meaning of section 695 of the Criminal Code. The court also needed to determine if the provisions of Chapter 70 of the Criminal Code were applicable to the case.

The court reasoned that there was no power to make the order sought by the applicant. It concluded that the Crown was not liable to pay costs in this matter. The court found that the indictment was not an ex officio indictment and did not fall within the meaning of section 695 of the Criminal Code. Additionally, the court determined that the provisions of Chapter 70 of the Criminal Code were not applicable to the case. As a result, the court dismissed the applicant's application for costs against the Crown. Consequently, the court made an order that the application is dismissed.

Orders

Orders of the court

There is no power to make the order sought by the application, with the consequential order that the application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Michael Dudarec v The Queen [2013] QDC 166
PARTIES:	MICHAEL DUDAREC Applicant v THE QUEEN Respondent
FILE NO/S:	82/2013
DIVISION:	Criminal
PROCEEDING:	Application for Costs
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	19^th July 2013
DELIVERED AT:	Maroochydore District Court
HEARING DATE:	4 April 2013
JUDGE:	Long SC, DCJ
ORDER:	There is no power to make the order sought by the application, with the consequential order that the application is dismissed.
CATCHWORDS:	CRIMINAL LAW – COSTS - APPLICATION BY ACCUSED - WHETHER POWER TO AWARD COSTS AGAINST CROWN - where applicant seeks an order for costs against the Crown, pursuant to s 694(c) of the Criminal Code - whether the Crown is liable to pay costs - whether the indictment presented was an ex officio indictment and/or within the meaning of s 695 of the Criminal Code – whether the provisions of Chapter 70 of the Criminal Code are applicable Criminal Code Act 1899 (Qld) s 1, s 560, s 561, s 562, s 563, s 567, s 660, s 687, s 694, s 695 Criminal Law Amendment Act 1997, No 3 of 1997 Criminal Proceeds Confiscation Act 2002 (Qld) s301 – 310 Gouldham v Sharrett [1966] WAR 129 at 136 R v Boulle [2006] QSC 253 at [19], [43] R v His Honour Judge Kimmins ex parte Attorney-General [1980] Qd R 524 at [525] R v Jackson [1962] WAR 130 at [130] – [131] R v Webb [1960] Qd R 443 at [447] R v Foley [2003] 2 Qd R 88 at [25]
COUNSEL:	A Nelson for the Applicant S Bain for the Respondent
SOLICITORS:	Gilfoyle Solicitors for the Applicant Office of the Director of Public Prosecutions for the Respondent