Police v Murray
[2013] SASCFC 68
•3 July 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v MURRAY
[2013] SASCFC 68
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)
3 July 2013
CONSTITUTIONAL LAW - OPERATION AND EFFECT OF THE COMMONWEALTH CONSTITUTION - GENERAL MATTERS - NATURE AND SCOPE OF COMMONWEALTH POWERS - SEPARATION OF POWERS
TRAFFIC LAW - OFFENCES - GENERALLY
TRAFFIC LAW - OFFENCES - PROCEDURE - COSTS
The respondent pleaded guilty to one count of driving with the prescribed concentration of alcohol in her blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“RTA”). She was fined and disqualified from driving; an impounding fee and victims of crime levy were also imposed. Counsel for the respondent invited the Magistrate to waive the prosecution fee of $100 which would otherwise be payable. The Magistrate acceded and declined to make an order for costs in favour of the Police for $100 pursuant to s 189A(2) of the Summary Procedure Act 1921 (SA) (“SPA”). The police prosecutor informed the Magistrate that he was under instructions to always seek that fee. The Magistrate declined to vary his order.
The Police appeal against the Magistrate’s refusal to make the costs order, contending that it was mandatory. The Attorney-General intervenes in support of the position taken by the Police.
Held (allowing the appeal):
1. Per Kourakis CJ and Gray J, Blue J agreeing: Section 189A(2) confers a bare power on the prosecution, but does not create an obligation to consider waiver of the benefit of the otherwise mandatory costs order (at [33], [94] and [111]).
2. Per Gray J and Blue J: On the proper construction of s 189A(3), no issue arises of:
(a) the lawful exercise of power or discretion by the prosecution (at [103] and [114]), or
(b) abuse of process for the prosecutor to decline to waive the entitlement to a costs order for $100 (at [103] and [115]).
Per Kourakis CJ: Even if the prosecutor was under an administrative duty to consider a request to agree that an order under s 189A(2) not be made, in this case, there was no such request made before the Magistrate made no order as to costs (at [5] and [25]).
3. Per Kourakis CJ and Gray J: Section 189A is not repugnant to the judicial integrity implication of Chapter 3 of the Constitution (at [73] and [92]).
Per Blue J: On the proper construction of s 189A(3), no issue arises of interference with the judicial integrity of the Magistrates Court (at [113]).
4. Per Kourakis CJ and Blue J: Section 13 of the Criminal Law (Sentencing) Act 1988 precludes an order pursuant to s 189A(2) if the Magistrate is satisfied of either of the conditions prescribed by s 13(1) of the Sentencing Act. There was no material before the Magistrate capable of establishing those conditions and therefore the Magistrate did not have the power to decline a costs order (at [21] and [118]).
Per Gray J (contra): Section 13 of the Criminal Law (Sentencing) Act 1988 (SA) is a general provision which would ordinarily apply to a provision relating to the payment of costs in the criminal jurisdiction, unless a contrary intention is manifest in section 189A(3). The provision enacted at a later point in time, section 189A, has impliedly repealed the provision first enacted, section 13, to the extent that section 13 purports to apply to costs imposed in the circumstances to which section 189A applies. The legislative directive as to costs orders in the circumstances to which section 189A applies is preferred, to the extent of any inconsistency, to the general powers available in the Sentencing Act (at [100]).
5. Per the Court: In the absence of agreement, the Magistrate was bound to order the defendant to pay the prosecution costs (at [33], [94] and [111]).
6. Per the Court: The order of the Magistrate is set aside and the respondent is to pay the Police costs in the sum of $100 pursuant to s 189A(2).
Road Traffic Act 1961 (SA) 47B, 47B(1)(a); Summary Procedure Act 1921 (SA) 189A, 189A(2), 189A(3); Criminal Law (Sentencing) Act 1988 13, 13(1), 17, 18; Statutes Amendment (Fine Enforcement) Act 1998 (SA); Fisheries Act 1982 (SA) 66(1); Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA); Acts Interpretation Act 1915 (SA) 34; Serious and Organised Crime (Control) Act 2008 (SA); Justices Procedure Amendment Act (1983-4) (SA); Justice Act 1921 (SA) 76; National Service Act 1951-1968 (Cth) 49(1), 49(2); Finn “The Justifiability of Administrative Decisions – A Redundant Concept” (2002) 30 Fed L Rev 239; Law of Costs G.E. Dalpont, LexisNexis Butterworth (2010); Expiation of Offences Act 57A; Statutes Amendment (Budget 2011) Act 2011 (SA) 18, referred to.
South Australia v Totani (2010) 242 CLR 1; Bell v Police [2012] SASC 188; Palling v Corfield (1970) 123 CLR 52, discussed.
The Queen v Toohey; ex parte Northern Land Council (1980-1981) 151 CLR 170; Holland v White [1993] SASC 4350; The Queen v Toohey; ex parte Northern Land Council (1980-1981) 151 CLR 170; Holland v White [1993] SASC 4350; Hemming v Perkins (1999) 74 SASR 307; Police v Hanley [2011] SASC 175; Maxwell v The Queen (1996) 184 CLR 501; Von Einem v Griffin & Anor (1998) 72 SASR 110; Julius v Lord Bishop of Oxford (1880) 5 App Cas 214; Xenophon v State of South Australia & Ors (2000) 78 SASR 251; R v Hickman; Ex Parte Fox and Anor (1945) 70 CLR 598; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Thomas v Mowbray (2007) 233 CLR 307; White v Director of Military Prosecutions (2007) 231 CLR 570; Earl of Oxford’s Case (1615) 21 ER 485, (1615) 1 Ch Rep 1; Tavitian v Commissioner of Highways [2010] SASC 206; North Australian Aboriginal Legal Aid Service Inc v Bradley & Anor (2004) 218 CLR 146; Baker v The Queen (2004) 223 CLR 513; Wellington v Police (2009) 105 SASR 215; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; United States v Brown (1965) 381 U.S. 437; Garnett v Bradley (1878) 3 App Cas 944; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Davies v White (1991) 56 SASR 30; Button v Police (1997) 71 SASR 258; Mitsubishi Motors Australia Ltd v Ghassemi-Far Unreported, Supreme Court of South Australia, Matheson J, 20 September 1996; Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529; Balog v Independent Commission Against Corruption (1990) 169 CLR 625; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Goodwin v Phillips (1908) 7 CLR 1; Butler v Attorney-General (Vic) (1961) 106 CLR 268; South Australia v Tanner (1989) 166 CLR 161; Shergold v Tanner (2002) 209 CLR 126; South Australia v Totani (2010) 242 CLR 1; Re Macks; ex parte Saint (2000) 204 CLR 158; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; Campbell v Employers Mutual Ltd and Others (2011) 110 SASR 57; Director of Public Prosecutions v George (2008) 102 SASR 246; R v Ironside (2009) 104 SASR 54; Commonwealth v Verwayen (1990) 170 CLR 394; Bell v Police [2012] SASC 188; Wellington v Police (2009) 105 SASR 215; Police v Holloway; Police v Vithoulkas [2013] SASC 2, considered.
POLICE v MURRAY
[2013] SASCFC 68FULL COURT: Kourakis CJ, Gray and Blue JJ
KOURAKIS CJ: The respondent pleaded guilty to one count of driving with the prescribed concentration of alcohol in her blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). She was fined $1,100 and disqualified from holding or obtaining a driver’s licence for eight months and three days. An impounding fee and a victims of crime levy were also imposed. The respondent’s counsel submitted that the Magistrate should waive the fees and costs which would otherwise be payable. The Magistrate acceded to that request and declined to make an order for costs in favour of the police in the sum of $100 pursuant to s 189A(2) of the Summary Procedure Act 1921 (SA). The police prosecutor then informed the Magistrate that he was “under instruction to always seek the $100 prosecution fee”. The Magistrate declined to vary his order.
The Police appeal against the refusal to make the costs order. The Attorney-General has intervened in the proceedings in support of the position taken by the appellant.
The appellant and the Attorney-General contend that the Magistrate was bound to make the costs order by s 189A(2) of the Summary Procedure Act 1921 (SA) (“SPA”) unless the prosecution agreed, pursuant to s 189A(3) of that Act, that the order should not be made. They also contend that the discretion conferred on sentencing courts by s 13 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) does not extend to giving relief against the costs order mandated by s 189A(2) of the SPA.
The respondent contends that the:
·The Magistrate was not bound by the terms of s 189A(2) of the SPA to make the costs order because the prosecutor’s failure to agree that the mandated costs order not be made was an abuse of the power to so agree conferred by s 189A(3) of the SPA.
·The discretion conferred by s 13 of the Sentencing Act extends to granting relief against the imposition of a costs order pursuant to s 189A(2) of the SPA.
·Section 189A of the SPA is invalid because it is repugnant to the judicial integrity implication of Chapter 3 of the Constitution.
I would resolve the competing contentions of the parties by holding that:
(1)Section 189A(2) of the SPA confers a bare power, in the sense explained in the next holding, on the prosecution to waive the benefit of the otherwise mandatory costs order.
(2)A prosecutor does not have an obligation in every case, or even on an occasion when a request is explicitly made, to consider whether or not to exercise the power.
(3)If, contrary to my holding in (2), the prosecutor was under an administrative duty to consider a request to agree that an order under s 189A(2) of the SPA not be made, there was no such request made before the Magistrate made no order as to costs pursuant to s 189A(3) of the SPA.
(4)In the absence of the agreement of the prosecution that an order not be made pursuant to s 189A(2) of the SPA, the Magistrate was, subject to the operation of s 13 of the Sentencing Act, bound to order the defendant to pay prosecution costs pursuant to s 189A(2) of the SPA.
(5)Section 13 of the Sentencing Act applies to s 189A(2) of the SPA and precludes the making of an order pursuant to that subsection if the Magistrates Court is satisfied of either of the conditions prescribed by s 13(1) of the Sentencing Act.
(6)There was no material before the Magistrates Court capable of satisfying it that the conditions prescribed by s 13(1) of the Sentencing Act had been established and therefore that section did not empower the Magistrate to decline to make a costs order pursuant to s 189A(2) of the SPA.
(7)Section 189A of the SPA is not repugnant to the judicial integrity implication of Chapter 3 of the Constitution.
(8)The Magistrates order should be set aside and an order made that the respondent pay the appellant’s costs in the sum of $100.
The Statutory Provisions
Section 189A of the SPA:
189A—Costs payable by defendant in certain criminal proceedings
(1)This section does not apply to—
(a) a defendant who enters a written plea of guilty in accordance with section 57A; or
(b) an enforcement procedure under section 13 of the Expiation of Offences Act 1996.
(2)If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—
(a) if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or
(b) if no such amount is prescribed—$100.
(3)If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).
The appellant and the Attorney-General accept that s 189A of the SPA applies both to a guilty finding made after a trial and on a plea of guilty.
Section 13 of the Sentencing Act provides:
13—Order for payment of pecuniary sum not to be made in certain circumstances
(1) The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a)the defendant would be unable to comply with the order; or
(b)compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(1a) In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.
(2) The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
Construction of section 13 – Applicability to mandatory penalties
Plainly enough, the legislature intended s 189A of the SPA and s 13 of the Sentencing Act to operate consistently. To that end the operation of one must be subjugated to the operation of the other. Either s 189A(2) of the SPA is subject to the limitation on the making of pecuniary sum orders found in s 13 of the Sentencing Act, or the denotation of the term pecuniary sum in s 13(1) of the Sentencing Act does not include the costs order mandated by s 189A(2) of the SPA.
The task of this Court is to ascertain the legislative intention as to the respective fields of operation of the two provisions. In the course of submissions reference was made to two principles of statutory construction in aid of that task. The first is the rule that an earlier statutory provision is taken to have been modified or repealed by a more recently enacted provision. The second is the rule that gives primacy to legislative provisions which address specific circumstances over those which apply more generally.
Both principles are guides only and are not particularly helpful in this case for several reasons. First, the particular question in this case is an aspect of the more general question of how s 13 of the Sentencing Act should be reconciled with the imposition of the many mandatory minimum penalties which are imposed by special Acts. Those penalties have been enacted both before and after the enactment of s 13 of the Sentencing Act. The application of s 13 of the Sentencing Act to mandatory penalty provisions should not depend on the order of their respective enactments. Secondly, both provisions have special fields of operations: s 189A(2) of the SPA to the costs of police prosecutions and s 13 of the Sentencing Act to the financial hardship of pecuniary penalties. Against that observation I acknowledge that s 189A(2) of the SPA probably has the more limited field of operation.
If I were to construe the terms of s 13 of the Sentencing Act without the assistance of authority, I would hold that it does not evince an intention to confer on the courts a general power to reduce minimum penalties and/or other orders which have been legislatively mandated by special Acts. Section 13(1) of the Sentencing Act, leaving aside for the moment the words in parenthesis, appears to address the court’s discretion as to the imposition of a pecuniary sum. It directs the court not to exercise discretions to impose pecuniary sums in a way which results in the imposition of a penalty more severe than a fine, through the enforcement process, because the pecuniary sum cannot be paid.
The second reading speech made on the introduction of the Criminal Law (Sentencing) Bill shows that the mischief to which s 13 was addressed was the imposition of fines which could not be paid.[1] The then Attorney-General explained that s 13 was designed to require the courts to “find an alternative sentence” to a fine when the defendant would be unable to comply with the order or when payment would cause undue hardship to the defendant’s dependents. The Attorney-General stated that the provision was not intended to authorise sentencing courts to “reduce or increase a fine according to the defendant’s means”.
[1] South Australia, Parliamentary Debates, 2 December 1987, 2865.
At the time of its first enactment, the Sentencing Act provided that a Court could fix a period of imprisonment in default of payment of a fine.[2] The direction in s 13(1) of the Sentencing Act was intended to stop the imposition of a fine which operated as a defacto order for imprisonment because of the inability of the defendant to pay it. The alternative sentences which, at that time, might have been imposed pursuant to s 13 of the Sentencing Act included a bond and community work. A defendant on whom a fine was imposed could also apply for an administrative order that it be converted to a community service obligation, as an alternative to imprisonment, in the case of severe hardship, but that option was only available if the outstanding fine was less than a prescribed amount.[3]
[2] Criminal Law (Sentencing) Act 1988 (SA) s 61 and Division 3 repealed by the Statutes Amendment (Fine Enforcement) Act 1998 (SA).
[3] Criminal Law (Sentencing) Act 1988 (SA) s 67 repealed by the Statutes Amendment (Fine Enforcement) Act 1998 (SA).
Sections 17 and 18 of the Sentencing Act allow a court to depart from a minimum penalty, but not a pecuniary sum, only when there is good cause to do so. The requirement of good cause and the limited application of those sections to penalties suggest that s 13 of the Sentencing Act was intended to apply to a mandatory minimum penalty, instead of all pecuniary sums, only if good cause to reduce that minimum penalty had been established and that, by implication, it was not intended to apply at all to mandatory pecuniary sums that were not penalties. That strict textual construction is supported by the following contextual consideration. To my mind there is a large degree of incongruity in Parliament, for deterrent reasons, legislating for mandatory minimum penalties and other pecuniary sums but allowing the courts a power to refrain from ordering those pecuniary sums because they would impose the very hardship which Parliament presumably intended by mandating their imposition.[4]
[4] Cf Hemming v Perkins (1999) 74 SASR 307 at 327 where Martin J expressed confidence that Parliament intended that s 13 of the Sentencing Act would prevail over statutory minimum penalties.
Be that as it may, in a series of decisions referred to in, and including, Holland v White[5] this Court gave s 13 of the Sentencing Act a wide application which prevailed over statutory minimum penalties. Subsequently, Parliament amended s 13(1) of the Sentencing Act to include the words in parenthesis, “order the payment of a lesser amount”. That term more naturally refers to a “lesser amount than a statutorily prescribed minimum” than it does to a “lesser amount than that which the court would otherwise have imposed in the exercise of its discretion”. In the course of the second reading speech on the Bill that added the words in parenthesis. The Attorney-General, of a different government than the one in office when the Sentencing Act was first introduced, said: [6]
… section 13 … does not clearly state that the court may order a defendant to pay a proportion of that pecuniary sum. It does not appear that the Court could order part payment of the pecuniary sum under the current section. However, the proposed amendment will make it clear that the Court may order part payment, which should eliminate litigation on this issue.
[5] [1993] SASC 4350.
[6] Statutes Amendment (Attorney-General’s Portfolio) Act 1997 (SA), s 4; South Australia, Parliamentary Debates, Legislative Council, 20 March 1997, 1297.
The reference to part payment, and the allusion to litigation such as that in Holland v White, suggests that the amendment was intended to remove any doubt about the applicability of the power conferred by s 13 of the Sentencing Act to legislatively mandated pecuniary sums.[7] The amendment appears to have been intended to give express approval to the line of authority referred to in Holland v White.
[7] In passing, I observe that the amendment may also authorise the fixing of fines which remain in the discretion of the Court by reference to the means of the defendant even though that purpose was expressly disavowed in the second reading speech given when the Criminal Law Sentencing Bill 1987 was first introduced.
As the amendment passed through Parliament, the litigation in Button v Police[8] was on foot. In that case, in which the defendant had no capacity to pay the mandated fine, Lander J imposed community work, instead of a fine only after finding that there was good reason to depart from the prescribed minimum fine pursuant to s 18 of the Sentencing Act.
[8] (1997) 71 SASR 258.
In Hemming v Perkins,[9] Martin J held that s 13 of the Sentencing Act, as amended in 1997, applied to an additional penalty imposed by s 66(1) of the Fisheries Act 1982 (SA). A similarly wide view was taken in Police v Hanley[10] in applying s 13 of the Sentencing Act to the mandatory clamping fees imposed by Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 (SA).
[9] (1999) 74 SASR 307.
[10] [2011] SASC 175.
The now well entrenched wide scope of s 13 of the Sentencing Act, in the absence of a clear indication to the contrary in a subsequent statute, should be taken to have an ambulatory operation. There is no such sufficiently strong indication to the contrary in s 189A(2) of the SPA. It is unlikely, on the accepted premise that s 13 of the Sentencing Act applies, independently of sections 17 or 18 of the same Act, to both penalties and pecuniary sums, that Parliament intended by the enactment of s 189A(3) of the SPA to displace the Court’s assessment of a defendant’s financial capacity pursuant to s 13 of the Sentencing Act with the prosecution’s unreviewable power of dispensation. The better construction is that s 189A of the SPA is an additional, unilateral, power of waiver conferred on the prosecution.
It follows that, if properly enlivened, the power in s 13 of the Sentencing Act would have authorised the Magistrate’s decision not to order payment of the costs order pursuant to s 189A(2) of the SPA. However, there was no material at all that was capable of satisfying the Magistrate of either of the conditions prescribed by s 13(1) of the Sentencing Act. It follows that the Magistrate’s failure to make the statutory costs order cannot be justified by s 13(1) of the Sentencing Act.
Construction of section 189A – No obligation to exercise
It is plain that s 189A(3) confers a discretionary power on the prosecution. Even though the power is expressed as one to “agree”, the subsection does not contemplate an agreement with another person such as the defendant, his or her counsel, or the presiding Magistrate. The respondent submitted that it is the proposition that “an order under subsection (2) should not be made” to which the prosecution may agree or, perhaps more aptly, “assent”. That submission should be accepted.
It is accepted by the respondent that the exercise of the prosecution’s discretionary power is not judicially reviewable.[11] Despite that concession, the respondent contends that a “failure to lawfully exercise the power” enlivened the Court’s discretion pursuant to s 189A(3) of the SPA to make a costs order other than that mandated by s 189A(2) of the SPA. The respondent’s contention is based on a construction of s 189A(2) of the SPA which reads into that subsection a proviso limiting the duty to make the costs order to those cases in which the prosecution has withheld its assent after lawfully considering whether or not to exercise its power. That question of construction can be put to one side pending a consideration of the limits, if any, which delineate a lawful exercise of the power conferred by s 189A(2) of the SPA from an unlawful one.
[11] Maxwell v The Queen (1996) 184 CLR 501, 534 (Gaudron and Gummow JJ).
I observe first that there is a growing acceptance of a relationship between the concept of non-justicability and the concept of an “unfettered power”. An exercise of power is not reviewable if there are no “manageable legal standards” against which to measure its legality.[12] In The Queen v Toohey; ex parte Northern Land Council,[13] Mason J explained that the cases in which courts had refused to examine the exercise of the prerogative power could be explained on the ground “that the prerogative power in question was not, owing to its nature and subject matter, open to challenge for the reason put forward”.[14]
[12] M Aronson, B Dyer & M Groves Judicial Review of Administrative Law Thomson Reuters (2009) 4th Edition, (3.50)-(3.60), (3.180)-(3.195).
[13] (1980-1981) 151 CLR 170.
[14] (1980-1981) 151 CLR 170, 220 and 225 (Mason J); 283 (Wilson J); Von Einem v Griffin & Anor (1998) 72 SASR 110, 114 and 126; cf Finn “The Justifiability of Administrative Decisions – A Redundant Concept” (2002) 30 Fed L Rev 239.
An examination of the power conferred by s 189A(3) of the SPA reveals the following. First, it is exercised by the prosecution which has a direct pecuniary interest in its outcome. Secondly, it is the manifest purpose of s 189A(2) of the SPA to defray the cost, to the public, of police prosecutions by the making of the costs orders it mandates. The order is compensation for the costs incurred in bringing the prosecution; the prosecution is therefore entitled to have regard to the financial interest of the public in the outcome of its exercise of the discretion. Thirdly, the power is one exercised in the course of litigation. Fourthly, it is significant that there is no explicit statutory prescription of the occasion, or circumstances in which, a duty to consider whether or not to exercise the power arises.[15] There is no express provision for anything in the nature of an application which enlivens a duty to consider the discretion. Once it is accepted that the word “agree” is not used in the sense of an agreement with another, there is little reason to treat a request by the defendant or a Magistrate for an indication of the prosecution’s position as an “application” which triggers the duty to consider whether or not to exercise the power. Accordingly, if there is a duty it arises in every prosecution, which is an unlikely legislative intention, or it is enlivened in circumstances which, in the absence of any explicit statutory provision, are difficult to precisely define. Fifthly, and this is related to the last consideration, even though advance notice of a request to assent to a Magistrate not making the mandatory costs order might be given in some cases, its exercise may arise for consideration on short notice in a busy Magistrates Court list. Finally, and this consideration is also related to the third, it is unlikely that Parliament intended to impose a duty on police prosecutors to constitute and preside over a satellite administrative enquiry, within the prosecution of a summary offence, before indicating whether or not to give assent to a departure from the mandatory costs order.
[15] Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 225.
When a power to consider a matter is conferred on an adjudicative body it usually carries with it a concomitant duty to do so, but the “prosecution” is not an adjudicative body.
Having regard to the observations just made a decision pursuant to s 189A(3) of the SPA not to assent to the Magistrate not making a s 189A(2) order could not meaningfully be reviewed for any of the following grounds:
·Bias - because the prosecution necessarily has a financial interest;
·Irrationality or unreasonableness - because it is difficult to foresee any circumstance in which the public interest in defraying the costs of a prosecution will not be a rational and reasonable reason to decline assent;
·Procedural fairness - because it is unlikely that the legislature intended that the prosecutor should adjourn the summary proceedings to receive material in support of a request for the prosecution’s assent, or delay the hearing of other matters in the list whilst taking time to consider the question;
·Having regard to irrelevant considerations, or failing to have regard to relevant considerations - because the decision of the prosecution will be inscrutable as there can be no requirement to give reasons given the exigencies mentioned immediately above and they are very unlikely to be volunteered.
Difficulties of this kind suggest that the exercise of the prosecution’s discretion is not reviewable because there is no “manageable legal standard” against which to conduct the review.[16]
[16] The Queen v Toohey; ex parte Northern Land Council (1980-1981) 151 CLR 170, 219; Xenophon v State of South Australia & Ors (2000) 78 SASR 251, 264.
I acknowledge the force of the argument that there is at least a duty to consider whether or not to assent to the making of an order other than the one mandated by s 189A(2) of the SPA. However, the imposition of a duty to consider whether or not to exercise the discretion when that consideration is itself inscrutable and, for all practical purposes, unimpeachable, is in itself improbable. Moreover, it would, as I observed in the preceding paragraph, be quite impracticable. The respondent relied heavily on the improbability that Parliament intended to allow the prosecution to ignore a request from a Magistrate to consider the exercise of the power. However, the force of that argument is largely drawn from the duty of advocates, as officers of the court, to assist the court in its judicial work. That analogy begs the question of the nature of the duty which is imposed by s 189A(2) of the SPA.
In my view, the prosecutor’s power with respect to costs is quite unlike the administrative discretion in licensing cases. In those cases the substantive rights and obligations of the applicant, usually to work or engage in a business, are modified by the administration decision. By contrast, a favourable exercise of the prosecution’s power conferred by s 189A(3) of the SPA is an indulgence. It results in the dispensation of a costs order incurred by reason of the defendant’s successful prosecution and which is calculated to reimburse the public purse. It is best seen as a power to waive a public right as the reasons of Gray J explain.
Finally, I acknowledge that both the failure to give, and the giving of, assent to a different costs order will be invalid if actuated by an improper purpose.[17] It is easier to contemplate a prosecutor assenting to a different order for an improper purpose, for example corruptly in return for a personal benefit, than it is for failing to assent. However, accepting for these purposes that personal animosity to a defendant is established, and is properly characterised as an improper purpose, and not a mere motive, or that a prosecutor might corruptly take a bribe to withhold assent, a decision actuated by such an improper purpose would be invalid even in the absence of a positive duty to consider the power. Indeed, a challenge on the ground of improper purpose assumes that a consideration, albeit a corrupt consideration, has been given to the exercise of the power.
[17] The requirement that a power be exercised honestly will always be implied because it is impossible to imagine that any legislature would expressly relieve a decision maker from an obligation to so act; cf R v Hickman; Ex Parte Fox and Anor (1945) 70 CLR 598, 617. The jurisdiction to judicially review administrative decisions for non-compliance with legislative constraints and conditions is a defining characteristic of the Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, [97]-[100].
This is a case in which, in accordance with s 34 of the Acts Interpretation Act 1915 (SA), the word “may” is used to confer a power “which may be exercised or not at discretion”. There is nothing in the “nature of the thing empowered to be done”, or “the object for which it is done” or “the conditions under which it is to be done” which couples the power with a duty.[18] All three of those considerations contraindicate the existence of a duty to consider the exercise of the power conferred by s 189A(3) of the SPA.
[18] Julius v Lord Bishop of Oxford (1880) 5 App Cas 214, 222-223.
For the above reasons, I hold that s 189A(3) of the SPA does not impose any duty on the prosecution to consider and determine whether or not to assent to a different costs order to that mandated by s 189(2) of the SPA. It confers an incoercible power on the prosecution to waive, as and when it sees fit, the benefit of the costs order which must otherwise be made pursuant to s 189A(2) of the SPA.
The Judicial Integrity Principle – Who Adjudicates the Controversy?
In Thomas v Mowbray, Gummow and Crennan JJ said:[19]
In White v Director of Military Prosecutions [(2007) 231 CLR 570 at 594-595 [45]-[47]] reference was made by Gummow, Hayne and Crennan JJ to the importance which has been attached in the decisions respecting Ch III to the presence or absence of an understanding at the time of the adoption of the Constitution of the treatment of a particular class or type of function as apt for exercise by a court.
[19] (2007) 233 CLR 307, [66].
In enforcing the law of civil and criminal wrongs, the centuries old judicial method of common law courts is to apply normative rules, derived from several sources and developed through the accumulation of a body of case law, to the facts of the particular case. If a breach of an applicable legal rule is established, the remedy is, generally, in a civil case, an order which restores the innocent party close to the position he or she would have held if the wrong had not been committed, and, in a criminal case, a penalty.
In public law the traditional function of superior common law courts has been to ensure adherence to the principle of legality by the executive and other judicial and administrative tribunals.
The common law courts also exercised a protective jurisdiction over persons with disabilities and a prophylactic jurisdiction over those who threatened a breach of the peace. Those jurisdictions derived from the responsibilities of the sovereign from whom the courts had emanated.
Chancery’s jurisdiction arose out of the recognition that “it is impossible to make any general law which may aptly meet with every particular act and not fail in some circumstances”.[20] By the time of the Judicature Act reforms, it included jurisdiction over equitable property and estates. Chancery also exercised an ancillary jurisdiction to the common law courts in which procedural and substantive remedies were provided to make up for deficiencies in the common law. Chancery also had a special jurisdiction to restrain public mischiefs.[21]
[20]Earl of Oxford’s Case (1615) 21 ER 485, 486; (1615) 1 Ch Rep 1, 6; (Lord Ellesmerch).
[21] See generally, Tavitian v Commissioner of Highways [2010] SASC 206, [30]-[42].
Much of the jurisdiction of courts in England and in Australia is now statutory. The transfer of the jurisdiction over matrimonial matters once exercised by ecclesiastical courts is an early example. Statutory jurisdiction over real property, bankruptcy, corporations and workers compensation are other examples.
Despite the extensive statutory accretions to the jurisdiction of courts, and the omnipresent statutory modifications of the common law, by and large, the work of Australian courts remains the enforcement of generally expressed, proscriptive normative rules of conduct. However, the complexity of modern conditions has also necessitated differently structured legal rules. Much legislative regulation is now quite prescriptive and detailed. Codes of that kind regulate social and economic activity over which the legislature wishes to exercise close, and more certain, control. Perhaps paradoxically, the complexity of modern socio-economic conditions has also resulted in the conferral of jurisdictions in which legal rights and obligations may be modified by judicial orders for the purpose of protecting a public interest by reference to a past, existing or future state of affairs.[22] Legislatures have conferred jurisdictions of those kinds when they have found it difficult to predict the precise form of future conduct which might adversely affect the public interest. The statutory device employed to address the perceived mischief is to state the desired result and to confer a judicial discretion to regulate the conduct of individuals to the extent necessary to achieve the legislative end.
[22] Thomas v Mowbray (2007) 233 CLR 307, 344-351 [68]-[90] (Gummow and Crennan JJ).
Whatever form the legislation takes, the judicial function continues to be to adjudicate on the substantive merits of the legal controversy, or matter, which arises out of the application of the law to particular facts. That has been the historical role of the courts and it continues to be their primary function.
The Australian public’s acceptance of the authority of the decisions of the Australian judiciary is founded, to a substantial degree, on its understanding that the historical and continuing function of the courts is to make judicial orders which are the product of an independent adjudication according to law of the substantial merits of legal controversies.
Legislation which confers a function which is incompatible with the manner in which judicial power is exercised by courts is repugnant to the judicial integrity implication of Chapter 3 of the Constitution.[23] In North Australian Aboriginal Legal Aid Service Inc v Bradley & Anor (Bradley) six members of the High Court, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ, accepted as a statement of the principle that: [24]
… it is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.
[23] South Australia v Totani (2010) 242 CLR 1, [62]-[70] (French CJ).
[24] (2004) 218 CLR 146, [29].
In Baker v The Queen Gleeson CJ described the judicial integrity principle in the following way: [25]
The principle for which [Kable] stands as authority is that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a function which substantially impairs it institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
The strength of that principle lies in its constitutional legitimacy. It was not an invention of a method by which judges may wash their hands of the responsibility of applying laws of which they disapprove. In some of the judgments in Kable, references were made to public confidence in the courts. Confidence is not something that exists in the abstract. It is related to some quality or qualities which one person believes to exist in another. The most basic quality of courts in which the public should have confidence is that they will administer justice according to law. As Brennan CJ said in Nicholas v The Queen:
“It is the faithful adherence of the courts to the laws enacted by the Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the judicial process and the protection of the courts’ repute as the administrator of criminal justice.”[26]
[25] (2004) 223 CLR 513, [5]-[6].
[26] See also, Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [15] (Gleeson CJ).
In Fardon v Attorney-General (Qld) Gummow J spoke of “repugnancy to, or incompatibility with, that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system”.[27]
[27] (2004) 223 CLR 575, 101.
In South Australia v Totani (Totani) French CJ explained that:[28]
… the true question is not whether a court of the State, subject to impugned legislation, can still be called a court of the State not whether it bears a sufficient relation to a court of the State. The question indicated by the use of the term “integrity” is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court.
[28] (2010) 242 CLR 1, [70].
In Totani the Serious and Organised Crime (Control) Act 2008 (SA) (SOCC Act) was held to be invalid because it imposed functions on the courts of this State which were incompatible with the judicial integrity implication. In that case, French CJ identified “independence, impartiality, fairness and adherence to the open-court principle” as the defining characteristics of courts, which were assumed, and therefore required, by Ch III of the Constitution. [29] French CJ gave the following five point explication of the judicial integrity principle:[30]
1.A State legislature cannot confer upon a court of a State a function which substantially impairs its institutional integrity and which is therefore incompatible with its role as a repository of federal jurisdiction.
2.State legislation impairs the institutional integrity of a court if it confers upon it a function which is repugnant to or incompatible with the exercise of the judicial power of the Commonwealth.
3.The institutional integrity of a court requires both the reality and appearance of independence and impartiality.
4.The principles underlying the majority judgments in Kable and further expounded in the decisions of the High Court which have followed after Kable do not constitute a codification of the limits of State legislative power with respect to State courts. Each case in which the Kable doctrine is invoked will require consideration of the impugned legislation because: “the critical notions of repugnancy and incompatibility are insusceptible of further definition in terms which necessarily dictate future outcomes.” For legislators this may require a prudential approach to the enactment of laws directing courts on how judicial power is to be exercised, particularly in areas central to the judicial function such as the provision of procedural fairness and the conduct of proceedings in open court. It may also require a prudential approach to the enactment of laws authorising the executive government or its authorities effectively to dictate the process or outcome of judicial proceedings.
5.The risk of a finding that a law is inconsistent with the limitations imposed by Ch III, protective of the institutional integrity of the courts, is particularly significant where the law impairs the reality or appearance of the decisional independence of the court.
[29] (2010) 242 CLR 1, [62].
[30] (2010) 242 CLR 1, [69].
The reasons that the SOCC Act impermissibly corrupted the institutional integrity of the Magistrates Court are found in the concluding paragraphs of the reasons of French CJ.[31] In summary, they are:
(a)The Magistrates Court does not make, and is indeed unaware of, the factual findings leading to the making of the declaration which enliven its powers.[32]
(b)The orders which the Court makes are a serious imposition upon the personal liberties of the defendants.[33]
[31] (2010) 242 CLR 1, [75]-[83].
[32] (2010) 242 CLR 1, [75].
[33] (2010) 242 CLR 1, [76].
The essential reasoning of Crennan and Bell JJ in Totani appears in the following passage:[34]
Making the control order does not involve any finding of criminal guilt. The power to make a control order is not conditioned on any assessment by the Court of whether, by reason of the defendant’s status or by reason of past or threatened conduct of the defendant (whether criminal or in breach of the peace), the defendant poses a risk to public safety and order. The power to make a control order is also not conditioned on any satisfaction of the Court as to whether the defendant engages in or has engaged in serious criminal activity (cf s 14(2)) or whether the defendant’s past or threatened conduct poses a risk that the defendant will engage in serious criminal activity or whether, and to what extent, the making of a control order may substantially assist in preventing the defendant from engaging in serious criminal activity. In these respects the power to make a control order can be distinguished from the power to make a control order of the type considered in Thomas v Mowbray.
[34] (2010) 242 CLR 1, [434].
After referring to the provisions of the SOCC Act which allocated exclusive responsibility for declaring an organisation on the Attorney and which required the Magistrates Court to impose a control order on proof of membership without any finding as to the criminal activity of the members of the organisation, their Honours continued:[35]
These considerations show that, in conferring a power on the Court to make control orders under s 14(1), the State requires the Court to exercise judicial power to make a control order after undertaking an adjudicative process that is so confined, and so dependent on the Executive’s determination in the declaration, that it departs impermissibly from the ordinary judicial processes of an independent and impartial tribunal. Specifically, s 14(1) operates to draw the Court into the implementation of the legislative policy expressed in the objects of the Act. The conditions upon which the Court must make a control order require the Court to give effect to the determination of the Executive in the declaration (which implements the legislative policy), without undertaking any independent curial determination, or adjudication, of the claim or premise of an application for a control order by the Commissioner of Police, that a particular defendant poses risks in terms of the objects of the Act. This has the effect of rendering the Court an instrument of the Executive, which undermines its independence. Section 14(1) requires the Magistrates Court of South Australia to act in a way which is incompatible with its constitutional position and the proper discharge of federal judicial responsibilities, and with its institutional integrity.
[35] (2010) 242 CLR 1, [436].
Kiefel J distinguished the Queensland legislation in Fardon[36] and the Commonwealth legislation considered in Thomas v Mowbray[37] from the legislation challenged in Totani. Her Honour observed that the legislation in each of the earlier cases was compatible with the judicial integrity implication because it allowed the courts a wide and substantial adjudicative function. Kiefel J observed that, in contrast, under the SOCC Act the Magistrates Court had no real capacity to evaluate the controls which it was required to impose by reference to their effectiveness in achieving the SOCC Act’s purpose of suppressing organised crime:[38]
It is possible that a control order made against a member of a declared organisation might assist in the achievement of this purpose, but this does not mean that it is correct to characterise the Court’s role and the processes it undertakes by reference to that purpose. The Court’s determinations under s 14(1) have nothing to say about whether the purpose might be achieved in a particular case. No regard may be had by the Court to a defendant’s history or the prospect that he or she may have been, or might in the future be, involved in criminal activities. Its order is not explicable on this basis. It can only be understood to proceed upon some unstated assumption concerning all persons who are identified by the Attorney-General’s declaration and by reference to the obligation cast upon the Court to make an order with respect to a person so identified.
Kiefel J concluded:[39]
In Fardon v Attorney-General (Qld), Gummow J referred to a statement in Mistretta v United States as relevant to the principle in Kable. It is apposite to this case. It is that the reputation of the judicial branch may not be borrowed by the legislative and executive branches “to cloak their work in the neutral colors of judicial action”.
It is to be inferred from the Act that it is the aim of the Executive that all persons identified by the declaration made by the Attorney-General are to have their liberty to associate restricted. This is the end which the declaration serves but to which it cannot give effect. The Court is directed to bring this result about. Its action, in making the order, gives the appearance of its participation in the pursuit of the objects of the Act. Properly understood, however, the making of the order serves to disguise an unstated premise and the lack of any illegality attaching to membership of a declared organisation.
It follows that s 14(1) involves the enlistment of the Court to give effect to legislative and executive policy. It impinges upon the independence of the Court and thereby undermines its institutional integrity. Section 14(1) is invalid.
[36] Fardon v Attorney-General (Qld) (2004) 223 CLR 575.
[37] (2007) 233 CLR 307.
[38] South Australia v Totani (2010) 242 CLR 1, [478].
[39] (2010) 242 CLR 1, [479]-[481].
The decision in Totani, and the passages I have cited, show that the imposition of a duty on a court to make coercive orders, in cases in which the Court has not adjudicated the substance of the controversy, may be so incompatible with the central conception of the judicial function that it substantially impairs the institutional integrity of the court.
In Bell v Police,[40] I expressed the opinion that the above cited passages show that, at the core of the judicial integrity implication, lies a requirement that there be a rational connection between the adjudicative function invested in the court and the powers it must, or may, exercise. I elaborated on the nature of that connection by reference to the inherent attribute of the judicial systems of democratic societies based on the rule of law, and the integrated system of State and Commonwealth courts established by the Constitution, in particular, that judicial orders reflect the courts adjudications of the substantial merits of controversies.
[40] [2012] SASC 188, [75]-[80].
I also expressed the view that questions of incompatibility with the judicial integrity implication loom larger when the legislative scheme does not proscribe specific conduct enforceable by judicial proceedings but instead authorises, in prescribed circumstances, executive orders which derogate from the personal rights which the Courts must enforce subject only to a curial determination of relatively inconsequential or formal issues.[41] Authorising the executive arm of government to dictate to the courts the making of coercive orders against specified individuals, or groups of individuals, in order to implement the executive’s administrative determination of disputed matters concerning the conduct or status of those individuals, is likely to compromise the fundamental conception of the judicial function. In short, when judicial orders which impinge on accepted rights and liberties are made, for all practical purposes, at the dictate of the executive, an essential attribute of courts and the very function of the judicial branch of government is compromised.
[41] South Australia v Totani (2010) 242 CLR 1, [220]-[230] (Hayne J).
Legislation which compromises the institutional integrity of Australian Courts in the way just described may be contrasted with the mass of legislation which conditions legal rights on administrative decisions, which rights and obligations are then properly left to the judicial arm to enforce.[42]
[42] Examples include the obligation not to drive a motor vehicle, s 74 of the Motor Vehicles Act 1959 (SA), not to practice as a medical practitioner, Sch 2 of the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA), or not to practice as a solicitor s 21 Legal Practitioners Act 1981 (SA), without an administratively provided licence.
The determination of whether the legislation is of the former kind, and incompatible with the Court’s judicial role, or of the latter, constitutionally valid kind, requires an evaluative exercise.[43]
[43] South Australia v Totani (2010) 242 CLR 1, [70] (French CJ).
In Totani, Gummow J recognised the difficulty in delineating, with any exactitude, the reach of the judicial integrity principle. Gummow J described an evaluative judgment based on the “predominant characteristics” of the legislation. The pith and substance of the law, not just its form, must be considered.[44] The judgment calls for a comparison of the function conferred by the impugned legislation with the historical functions and processes of courts.
[44] (2010) 242 CLR 1, [134].
The evaluative exercise would seem to require an identification of the number and breadth of the matters which arise for determination under the legislative scheme. For the purposes of this assessment, the matter includes the range of questions of fact and law which might arise out of the application of the statutory scheme irrespective of the decision maker, administrative or judicial, to whom the resolution of those questions is committed by the statute.
There must then be an assessment of the respective roles of the executive and the judiciary in the legislative scheme against the historical functions and processes of the courts. The relative scope of the adjudicative functions of the judiciary and the executive will have an important bearing on the outcome of the evaluative exercise. As Crennan and Bell JJ observed in Totani, the extent to which the Court’s orders are the result of judicial adjudication of the conduct or status of the party bound by them against the statutory prescriptions will warrant close consideration. The more “confined” and “dependent”, on the executive’s determination, the judicial function is, the more likely it is that the judicial integrity principle will be breached. [45] The less the Court’s adjudication has to say about whether the legislative purpose might be achieved in a particular case the greater the risk of invalidity. [46] The extent to which the orders made by the courts impose penalties, is also an important consideration.
[45] (2010) 242 CLR 1, [436] (Crennan and Bell JJ).
[46] South Australia v Totani (2010) 242 CLR 1, [478] (Kiefel J).
It seems to me that there is also some analogy between the evaluative exercise involved for the purposes of the judicial integrity implication arising out of Chapter 3 of the Australian Constitution and the characterisation of a statute as a Bill of Attainder under the Constitution of the United States.[47]
[47] United States v Brown (1965) 381 U.S. 437.
Application to s 189A of the SPA
In considering the validity of s 189A of the SPA against the judicial integrity principle, it is of some importance that it deals with a procedural aspect of the adjudication by the Magistrates Court of summary offences. Costs are the creature of statute and are subject to frequent statutory modification, both as to entitlement and quantum.
The power of common law courts to order costs is, and always has been, entirely statutory.[48] Even though ancient statutory provisions allowed for the making of costs orders in particular circumstances, only with the Judicature Act reforms was a general power in the form with which we are familiar today enacted.[49] The power of courts of summary jurisdiction to award costs can be traced back to s 18 of the Administration of Justice Acts.[50] The power was expressed in discretionary terms and allowed the payment of costs either to the complainant-prosecutor or the defendant, depending on whether there was a conviction or the complaint was dismissed. A similar power was included in subsequent English enactments.[51]
[48] Garnett v Bradley (1878) 3 App Cas 944, 962 (Lord Blackburn); G.E. Dalpont Law of Costs LexisNexis Butterworth (2010), [6.2].
[49] As above, [6.3].
[50] 11 and 12 Vict. C. 42 & C. 43, s 18.
[51] 42 and 43 Vict. C. 49, s 7; see also 4 and 5 Geo. 5 C.58, s 1.
The English provisions were replicated in South Australia in the 19th century.[52] The discretion to award costs in summary matters was included as s 76 of the Justice Act 1921 (SA).
[52] Justices Procedure Amendment Act (1883-4) (SA), s 26.
Costs are intended to operate as an indemnity, or at least some compensation, for the expenses of the successful party. The amount prescribed by s 189A of the SPA is reasonably capable of being regarded as an indemnity or compensation. It is not to the point that in some, or many matters, it might exceed an amount which is proportionate to the prosecutor’s time in court having regard to his salary. There is no reason to think that that is not reasonably proportionate to the average cost of summary prosecutions conducted by the police prosecution service. In so far as some of the recovered cost is for work in the nature of legal work, it is sufficient to observe that the reasons which, in the past, have precluded recovery by police prosecutors of costs for work which is in the nature of legal work are subject to statutory modification.[53] Nor is the averaging of the cost of the prosecution service and recovery across all matters in itself objectionable.
[53] Wellington v Police (2009) 105 SASR 215.
It would have been open to the legislature to provide that the Magistrates Court must make an order for costs in the sum of $100 on the application of the prosecutor instead of, as s 189A(2) currently provides, in all cases. It is common ground on this appeal that if the section had been so expressed, the making of the application for costs would have been entirely within the unfettered discretion of the prosecutor and that the provision would have been constitutional. The apparent purpose of the enactment of s 189A(2) and (3) of the SPA was to ensure the making of costs orders in every case by not leaving it dependent on the diligence of prosecutors to make an application. That consideration tells against the respondent’s contention that s 189A of the SPA is an invalid infringement of the judicial integrity principle. It would be surprising if a minor difference in form, of the kind mentioned, of the prosecutor’s function on the question of costs had such a constitutionally significant effect.
Next, I also place some importance on the procedural nature of a costs order. The substantive controversy in a summary prosecution is whether the defendant’s guilt has been proved. Penalty and costs orders are consequential upon that adjudication.
In Palling v Corfield,[54] the High Court considered the validity of the penalty provided by s 49(2) of the National Service Act 1951-1968 (Cth) for an offence of failing to comply with a notice directing a person to attend for a medical examination contrary to s 49(1) of that Act. The primary penalty provided by the subsection was a fine. However, it also provided an additional penalty of seven days imprisonment if the prosecution, in its discretion, having sought an order that the defendant enter into a bond requiring his attendance at a medical examination, and the defendant refused to enter into the bond, so request. The constitutionality of the provision was challenged on the grounds that:
(a)the provision allowing the prosecution to request the imposition of a bond conferred judicial power on a person who was not a Chapter 3 judge;
(b)the provision was an impermissible interference in the judiciary;
(c)in the alternative the provision impermissibly delegated the legislative power of the Commonwealth to prescribe penalties to the prosecution.
[54] (1970) 123 CLR 52.
Only the first two grounds have any application to this case. The High Court held that the prosecutor’s power was not judicial and that the Parliament could deprive a court of its sentencing discretion either unconditionally or in the event of a legislatively prescribed condition. Barwick CJ relied, by analogy, on the power of prosecutors to select the charges they prosecute, and, in that way, to influence the sentencing outcome.[55]
[55] Palling v Corfield (1970) 123 CLR 52, 59.
The challenge in Palling v Corfield did not rely on the judicial integrity principle. That is not surprising, the judicial integrity implication which lay in Chapter 3 of the Constitution had not yet been noticed. True it is that Palling v Corfield has been cited with approval since the recognition of the judicial integrity principle,[56] but only for the correctness of the decision on the three grounds of the challenge agitated in that case. It is difficult to see how Palling v Corfield can be used as an authority which controls the outcome of a challenge based on the judicial integrity principle. The ratio of Palling v Corfield cannot include the result of the application of a legal principle which it did not apply and was not known at the time it was decided. Moreover, there is an obvious connection between the prosecutorial power there in question and the object of the National Service Act 1951-1968 (Cth), which was to secure the army service of able bodied young men. That connection would be an important consideration if a provision of that kind were to be challenged as an infringement of the judicial integrity principle.
[56] South Australia v Totani (2010) 242 CLR 1, [71] n 245 (French CJ); [330] n 509 (Heydon J); Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 88, n 151 (Dawson J).
Nonetheless, it can be accepted that the historical relationship between the legislature and the courts on the imposition of penalties, discussed in Palling v Corfield, is an important consideration in the evaluative exercise to which I have referred.
In that context, I place much weight on the consideration that the question of costs is even more removed from the primary, guilty or not guilty, controversy in a summary prosecution than is the question of penalty.
If a power like that found in s 189A(3) of the SPA was conferred on a private individual, it would be quite unobjectionable. I acknowledge that the decision of a private individual to waive the costs to which he or she is otherwise entitled does not raise the more problematic issue of the relationship between the executive and the judiciary. Nonetheless, to my mind it is an important consideration that the executive power here in question is in the nature of an indulgence by which the prosecution might, in its unfettered discretion, sacrifice the interests of the public to recoup the reasonable cost of its prosecution of the defendant.
The prosecutorial power in this case can be distinguished from the power in Bell v The Police.[57] The decision in Bell v The Police rests on the combination of features which, in my judgment in that case, effectively empowered the prosecution to dictate to a court, after it had exercised its sentencing discretion, the imposition of an additional penalty which was disproportionate to the offence and would overwhelm the judicial adjudication of the proper sentence.
[57] [2012] SASC 188.
Conclusion
I would allow the appeal and set aside the order of the Magistrate. I would make instead an order pursuant to s 189A(2) that the respondent pay the Police costs in the sum of $100.
GRAY J.
This is an appeal from a refusal by a Magistrate to order costs against a defendant.
Heidi May Murray, the defendant and respondent, was charged on complaint with the offence of driving with a prescribed concentration of alcohol in her blood, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). On 4 February 2013, the defendant entered a plea of guilty. The Magistrate sentenced the defendant by imposing a fine of $1,100.00 and disqualifying the defendant from holding or obtaining a driver’s licence for a period of eight months and three days. An impounding fee and a victims of crime levy were also imposed. The Magistrate declined to impose prosecution costs. The Magistrate did not give reasons for declining to do so.
On the appeal, the Solicitor-General appeared for the police and for the Attorney-General as intervener. The question arising on the appeal was whether the Magistrate was required by section 189A(2) of the Summary Procedure Act 1921 (SA) to make an order for costs against the defendant for $100.00.
Part 7 of the Summary Procedure Act is headed “Supplementary Provisions” and, inter alia, contains several sections dealing with costs. Before coming to discuss the issues arising on this appeal, it is convenient to set out the terms of sections 189 and 189A of the Summary Procedure Act:
189—Costs generally
Subject to sections 189A to 189D (inclusive), the Court may award such costs for or against a party to proceedings as the Court thinks fit.
189A—Costs payable by defendant in certain criminal proceedings
(1)This section does not apply to—
(a)a defendant who enters a written plea of guilty in accordance with section 57A; or
(b)an enforcement procedure under section 13 of the Expiation of Offences Act 1996.
(2)If the Court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court must, subject to subsection (3), make an order for costs against the defendant for—
(a)if an amount is prescribed by regulation for the purposes of this subsection—the prescribed amount; or
(b)if no such amount is prescribed—$100.
(3)If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).
The Magistrate found the defendant guilty in proceedings prosecuted by a police officer. The phrase “finds a defendant guilty in proceedings” in section 189A(2) includes both a finding of guilt following trial and after a plea of guilty. Were it otherwise, it would have been unnecessary for section 189A(1)(a) to have been included. Further, the inclusion of section 189A(1)(a) highlights the rationale for section 189A(2) – it is intended to cover the costs associated with a police prosecutor’s appearance in court.[58]
[58] See eg Wellington v Police (2009) 105 SASR 215.
The defendant had not entered a written plea of guilty in accordance with section 57A of the Summary Procedure Act. Nor was the proceeding an enforcement procedure under section 13 of the Expiation of Offences Act 1996 (SA). The prosecution did not agree that an order under section 189A(2) of the Summary Offences Act should not be made.
The Solicitor-General submitted that the duty to impose the order for costs pursuant to section 189A(2) of the Summary Offences Act was enlivened with the consequence that the Court was obliged to make an order for costs against the defendant in the amount of $100.00 pursuant to section 189A(2)(b). It was said that the only basis upon which the Magistrate could have declined to make the order was if section 189A, or relevant parts thereof, were invalid.
Counsel for the defendant submitted that section 189A(3) of the Summary Procedure Act is constitutionally invalid because it is incompatible with the constitutional role of the Magistrates Court as a court of a State within the meaning of Chapter III of the Australian Constitution. It was contended that sections 189A(2) and 189A(3) form part of a statutory scheme which comprises at least the whole of section 189A. In these circumstances, it was said that section 189A(3) is not severable from the rest of section 189A and, accordingly, section 189A as a whole is invalid.
Counsel for the defendant submitted in the alternative that on the assumption that sections 189A(2) and 189A(3) are valid, the prosecution did not validly or lawfully exercise a discretion conferred upon it by section 189A(3). Finally, it was contended that the circumstances rendered the proceedings an abuse of process such that they should have been stayed and that no order for costs should have been made.
It is convenient to first turn to the construction of section 189A. This provision was inserted into the Summary Procedure Act by section 18 of the Statutes Amendment (Budget 2011) Act 2011 (SA) in substitution for the former section 189. This amendment Act commenced operation on 1 July 2012.
Section 189A(2) imposes a duty on the Court in specified circumstances to make an order for costs against a defendant for $100.00, or an amount prescribed by regulation. The duty to so act is enlivened only after the Court exercises judicial power in the normal way, resulting in a finding of guilt. So understood, the duty is a consequence of an exercise of judicial power.
A State legislature is able to select whatever factum it wishes as the trigger for a legislative consequence. As French CJ observed in South Australia v Totani:[59]
It has been accepted by this Court that the Parliament of the Commonwealth may pass a law which requires a court exercising federal jurisdiction to make specified orders if some conditions are met even if satisfaction of such conditions depends upon a decision or decisions of the executive government or one of its authorities. The Parliament of a State may enact a law of a similar kind in relation to the exercise of jurisdiction under State law. It is also the case that "in general, a legislature can select whatever factum it wishes as the "trigger" of a particular legislative consequence". But these powers in both the Commonwealth and the State spheres are subject to the qualification that they will not authorise a law which subjects a court in reality or appearance to direction from the executive as to the content of judicial decisions. …
[Footnotes omitted.]
There was no challenge by the defendant to this proposition. The defendant’s submissions focussed on the effect of section 189A(3).
[59] South Australia v Totani (2010) 242 CLR 1, [71]; see also Baker v The Queen (2004) 223 CLR 513, [8]-[10], [43]; Re Macks; ex parte Saint (2000) 204 CLR 158, [25], [107], [208]; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319, [49], [77]; [157].
It is convenient now to extract again and turn to section 189(3) of the Summary Procedure Act:
If the prosecution agrees that an order under subsection (2) should not be made, the Court may instead make some other order as to costs (or may make no order as to costs).
It was a submission of the defendant that this provision confers a capacity on the Court to depart from the rule prescribed by section 189A(2), but that that capacity is only enlivened upon the prosecution agreeing that an order under subsection (2) should not be made. It was suggested that the subsection places a requirement on the Court to seek and obtain the permission of the prosecution to make an order in relation to costs other than that identified in section 189A(2). It was further said that the condition for making a different order is a positive exercise of power by the prosecution. It was said that, so construed, section 189A(3) offended what has become known as the Kable doctrine.
The Kable doctrine has been considered and applied in this Court in a number of cases. The approach required in applying the doctrine was summarised in Campbell v Employers Mutual Ltd and Others as follows:[60]
A State parliament may not confer upon a State court a function, or alter the structure or composition of a State court, if in doing so the consequence is that the institutional integrity of the court is distorted "because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision-making bodies". To confer upon a State court such a function is repugnant to or incompatible with the exercise by that court of the judicial power of the Commonwealth. The doctrine focuses upon protecting capacity and what is essential to the role of the judicial arm of government and the maintenance of the integrity of the integrated Australian judicial system.
Further, the operation of the doctrine is informed by the fact that at the State level the doctrine of the separation of powers does not apply. That is, implicit in the Kable doctrine is an acceptance that the defining characteristics of a court of a State are not distorted by the mere fact that a law vests in such court, or a member of such court, a function that does not involve the exercise of judicial power. If the doctrine is not necessarily offended by a law that vests in a court of a State a function that does not involve the exercise of judicial power, it follows that a law of a State that modifies the manner in which the judicial power of the State is exercised will not necessarily offend the doctrine provided that what is essential to the exercise of judicial power is not compromised. It is in this context that the concept of the institutional integrity of a court of a State within the meaning of Ch III of the Constitution and the Kable doctrine is to be understood. …
...
The true question is whether the "court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every respect of its judicial role, of its defining characteristics as a court".
[Footnotes omitted.]
[60] Campbell v Employers Mutual Ltd and Others (2011) 110 SASR 57, [109]-[111]. See also Director of Public Prosecutions v George (2008) 102 SASR 246, [104]; R v Ironside (2009) 104 SASR 54, [89]-[91], [130]-[132].
It was submitted that a function has been conferred on the Magistrates Court that is repugnant to and incompatible with the exercise by that Court of the judicial power of the Commonwealth. It was further contended that the institutional integrity of the Court has been distorted.
The Solicitor-General submitted that the duty imposed upon the Court by section 189A remains a legislatively imposed duty, enlivened upon an exercise of judicial power. It was contended that the executive does not direct the manner in which judicial power is to be exercised, nor does the executive dictate the outcome of the exercise of that power. Institutional independence and decisional independence both remain. Finally, it was submitted that there is no exercise of executive power cloaked in the neutral colours of judicial action.
Both counsel accepted that section 189A(2) provides that in the event that a court finds a defendant guilty in proceedings for an offence prosecuted by a police officer, the Court is to make an order for costs against the defendant for $100.00, or a prescribed amount. It was further accepted that the prosecution, as a consequence, had a statutory legal entitlement in the present case to seek an order for costs in its favour against the defendant for $100.00.
Section 189A(3) sets out the circumstance in which the Court’s discretion to make an order other than that provided for by section 189A(2) may be enlivened. The circumstance identified is the agreement of the prosecution that an order under section 189A(2) should not be made. Counsel for the defendant submitted that the reference to “agrees” is to be understood as meaning “consents”. In my view, this submission should be accepted. I consider that section 189A(3) is a provision that enables the prosecution to waive its entitlement to an order for costs against the defendant in the specified amount under section 189A(2). This construction would lead to the conclusion that the Kable doctrine would have no application to any provision within section 189A.
It is instructive to have regard to observations of members of the High Court in Commonwealth v Verwayen.[61] The question of waiver of a statutory right was discussed and in this respect Dawson J observed:[62]
It is commonly said that a person may waive a statutory right in the sense of not relying upon it. In order to waive a statutory right in this way, it must be a personal or private right and must not rest upon public policy or expediency: see Brown v. The Queen. Provided that it bars a remedy rather than extinguishes a cause of action, a statute of limitations gives rise to a right of that kind and it must be pleaded if it is to be invoked: Re Burge; Gillard v. Lawrenson. If it is not pleaded, it is said to be waived, but the use of the term "waiver" in this way exemplifies its imprecision. A waiver of this kind does not amount to an election and does not necessarily give rise to an estoppel.
[Footnotes omitted.]
Gaudron J made the following observations of similar effect:[63]
The general principle is that "an individual cannot waive a matter in which the public have an interest": Graham v. Ingleby, per Alderson B. referring to Reg. v. Bloxham. See also Ross v. Australian Postal Commission; Phillips v. Martin. Conversely, a person may waive a right that is for his or her own benefit: Great Eastern Railway Co. v. Goldsmid; Toronto Corporation v. Russell. Where a right is conferred by statute a question may arise whether the statute confers a personal or a public right. …
[Footnotes omitted.]
[61] Commonwealth v Verwayen (1990) 170 CLR 394.
[62] Commonwealth v Verwayen (1990) 170 CLR 394, 456.
[63] Commonwealth v Verwayen (1990) 170 CLR 394, 486.
The statutory entitlement under section 189A(2) is conferred on the prosecution in the public interest. In no sense is it a private right. At common law, there could be no waiver. However, in my view, the import of section 189A(3) is to provide a statutory power of waiver. It is for the prosecution to exercise that right as it may consider appropriate. Once exercised, there is a waiver of the legal entitlement of section 189A(2) and, as a consequence, the Court’s discretion to make some other order as to costs is enlivened.
In Holloway,[64] Peek J considered the operation of section 189A. In the course of his Honour’s reasons, the possible invalidity of section 189A(2) was discussed. His Honour observed:[65]
As is well known, the courts, at least for the moment, have a range of powers to effectuate a sensible and just outcome in cases where a prosecution has occurred over a matter that is truly trivial or trifling.[66] In such cases – and they do occur - the courts may find that the defendant is technically guilty but dismiss the matter without convicting or imposing any penalty. However, the effect of s 189A is that where a Magistrate finds that a charge is proven, but dismisses it without conviction or penalty on the basis that it is petty and technical in the extreme, the Magistrate is now required to order the defendant to pay an amount of $100 to the police for costs of that very prosecution!
The only reprieve from this $100 penalty is within the absolute discretion of the prosecution, s 189A(3) constituting a unilateral and unchallengeable right of police to veto any suggestion that a Magistrate might make as to the waiver of the penalty in the interests of justice.
…
This new “police discretion” is enacted to the direct detriment of the courts’ traditional power and responsibility to administer criminal justice. It is another example of a startling trend of abnegation of the power and responsibility of the independent Judiciary to the police in this State.
Of course, the courts may not comment on such matters until they arise in a case being heard by the court and there may therefore be an unfortunate time lag between the passage of legislation and any consideration of it by the courts. I will simply refer to two similar recent examples of courts considering the trend to which I refer.
…
The effect of s 189A appears to me to manifest the very situation warned against by Kourakis CJ:[67] “when judicial orders which impinge on accepted rights and liberties are made, for all practical purposes, at the dictate of the executive, an essential attribute of courts and the very function of the judicial branch of government is compromised”.
I would simply add that, in the context of the example given above of a Magistrate wishing to dismiss a charge without conviction or penalty, the matter becomes very clear and stark indeed: the effect of s 189A is to confer a power on the prosecution to order a court to apply and enforce a penalty in circumstances where it has decided that the appropriate and just result is that there should be no penalty imposed at all.
[64] Police v Holloway; Police v Vithoulkas [2013] SASC 2.
[65] Police v Holloway; Police v Vithoulkas [2013] SASC 2, [83]-[84], [86]-[87], [90]-[91].
[66] Criminal Law (Sentencing) Act 1988 sections 15, 16, 17.
[67] Bell v Police [2012] SASC 188, [78].
In this extract, Peek J refers to “a unilateral and unchallengeable right of police to veto”.[68] I respectfully disagree with his Honour’s interpretation of section 189A(3) and his characterisation of the effect of the provision. I also respectfully disagree with the observation of Peek J that the effect of section 189A is the very situation warned against by Kourakis CJ in Bell v Police,[69] namely that section 189A(2) requires the Court, for all practical purposes, to act at the dictate of the executive. In so concluding, I refer in particular to my reasons set out above concerning the Kable doctrine and the interpretation of section 189A.
[68] Police v Holloway; Police v Vithoulkas [2013] SASC 2, [84].
[69] Bell v Police [2012] SASC 188.
The Solicitor-General drew attention to sections 13 and 14 of the Criminal Law (Sentencing) Act 1988 (SA). Section 13 provides:
(1) The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant,
(and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(1a) In considering whether the defendant would be able to comply with the order, the court should have regard to the fact that defendants may enter into arrangements under Division 3 of Part 9 for an extension of time to pay pecuniary sums or for payment by instalments.
(2) The court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
A question arises as to whether the duty created by section 189A is modified by section 13 of the Sentencing Act. This section provides that where the means of the defendant, so far as they are known to the Court, are such that the defendant would be unable to comply with an order requiring payment of a pecuniary sum, or compliance with an order requiring payment of a pecuniary sum would unduly prejudice the welfare of dependants of the defendant, the Court must not make the order, but may make an order for payment of a lesser amount. Pursuant to section 3 of the Sentencing Act, “pecuniary sum” includes costs.[70]
[70] Criminal Law (Sentencing) Act 1988 (SA) section 3(1).
The Solicitor-General submitted that section 13 of the Sentencing Act does not apply to section 189A of the Summary Procedure Act. It is to be accepted that section 13 is a general provision which would ordinarily apply to a provision relating to the payment of costs in the criminal jurisdiction, unless a contrary intention is manifest in section 189A(3). In enacting section 189A, Parliament has exhaustively set out the circumstances in which the obligation in section 189A(2) may not arise, namely in the circumstance set out in section 189A(3). Section 189A(2) is expressly subject to section 189A(3). Otherwise, it is mandatory. The provision enacted at a later point in time, section 189A, has impliedly repealed the provision first enacted, section 13, to the extent that section 13 purports to apply to costs imposed in the circumstances to which section 189A applies.[71]
[71] Goodwin v Phillips (1908) 7 CLR 1, 7, 14; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566, [48]; Ferdinands v Commissioner for Public Employment (2006) 225 CLR 130, [47]; Commissioner of Police v Eaton (2013) 87 ALJR 267, [45]-[48].
As a consequence, the legislative directive as to costs orders in the circumstances to which section 189A applies is preferred, to the extent of any inconsistency, to the general powers available in the Sentencing Act.
During the hearing of the appeal, attention was also drawn to section 14 of the Sentencing Act, which is in the following terms:
Where a court considers—
(a) that it is appropriate—
(i) to make an order for compensation (under this Act or any other Act); and
(ii) to impose a fine or make any other order for the payment of a pecuniary sum; but
(b) that the defendant has insufficient means to pay both the compensation and the fine or other pecuniary sum,
the court must give preference to compensation.
To my mind, the same reasoning applies to section 14 as to section 13. The later provision, section 189A, modifies the Court’s duty under section 14.
When regard is had to the proper interpretation of section 189A, the other complaints advanced by the defendant should be rejected. There is no basis to suggest that any decision as to waiver by the prosecution is a reviewable decision. Further, even if it is reviewable, no factual foundation has been established to permit such a review. No case of abuse of process either in law or fact has been made out.
Conclusion
I would allow the appeal, set aside the order of the Magistrate declining to award costs against the defendant and, in lieu, make an order for costs of $100.00 against the defendant.
BLUE J:
The facts in this appeal are set in the reasons for judgment of Kourakis CJ and Gray J.
The issues on appeal need to be understood against the background of the following concessions made by Ms Murray on appeal. The preconditions set out in subsections (1) and (2) of section 189A of the Summary Procedure Act 1921 (SA) (“the Procedure Act”) were satisfied for the making of an order by the Magistrate for costs against Ms Murray for $100. The Magistrate gave no reasons for declining to order costs. While the Magistrate was invited not to make a costs order, no factual submission was advanced to the Magistrate in support of any specific ground for no costs order being made (including any inability to pay such costs). No application was made to the Police or the prosecutor before or at the hearing to consider waiving the prosecution costs and no submissions was made to the Magistrate that the Police or the prosecutor wrongly or unlawfully declined to consider waiver of the fee.
On appeal, the appellant, the Police, and the Attorney-General (intervening) contend that the Magistrate was obliged by section 189A of the Procedure Act to order payment of prosecution costs of $100. The respondent/defendant, Ms Murray, contends that the Magistrate was not required to make such an order because:
1. section 189A is constitutionally invalid because it impermissibly confers upon State courts vested with federal jurisdiction functions incompatible with their institutional integrity;
2. alternatively, the prosecutor did not lawfully exercise the discretion to determine whether to agree under subsection 189A(3) to no costs order being made and it is implicit in subsection 189A(2) that a costs order is only mandatory if the prosecutor has lawfully exercised that discretion;
3. alternatively, it was an abuse of process for the Police to seek to compel the Court to give effect to an unlawful exercise by the prosecutor of executive power and the proceeding should have been stayed without any costs order being made.
Each of Ms Murray’s three contentions fundamentally depends upon a construction of section 189A advanced by Ms Murray and contested by the Police and Attorney-General on appeal.
The construction of s 189A
The Police and the Attorney-General contend that, on its proper construction, subsection 189A(3) is confined to empowering the prosecution to waive, in whole or in part, the entitlement to a costs order for $100 pursuant to subsection 189A(2). Subsection 189A(3) does not empower the prosecution to seek, or the Court to order, costs against a defendant for an amount exceeding $100.
Conversely, Ms Murray contends that, if the prosecution elects under subsection 189A(3) to agree that a costs order for $100 under subsection 189A(2) should not be made, the Court is then empowered to order a greater or lesser amount of costs in favour of the prosecution.
I agree with Kourakis CJ and Gray J that, on its proper construction, subsection 189A(3) confers on the prosecution a bare power or discretion to waive the benefit of an otherwise mandatory costs order for $100 against a defendant. Such a waiver does not enable the prosecution to seek, or the Court to order, costs against a defendant in excess of $100.
Ms Murray’s contentions
On the above construction, none of the three contentions advanced by Ms Murray arise. I therefore address them only briefly.
Impermissible interference with judicial integrity
On the proper construction of section 189A identified above, no issue of interference with the judicial integrity of the Magistrates Court arises. It is a matter solely within the province of the prosecution to decide whether to waive the statutory entitlement to a costs order for $100.
Condition of lawful exercise of power
On the proper construction of section 189A identified above, no issue of the lawful exercise of power or discretion by the prosecution arises. In any event, there is no warrant to read into subsection 189A(2) the additional words suggested by Ms Murray “providing the prosecution lawfully exercises the power conferred by [subsection (3)] when the circumstances for its exercise arise”. Such a reading is contrary to the wording, structure and evident purpose of section 189A in general and subsection 189A(2) in particular.
Abuse of process
On the proper construction of section 189A identified above, it was not an abuse of process for the prosecutor to decline to waive the entitlement to a costs order for $100. In any event, Ms Murray made no application to the prosecutor to waive that entitlement, nor did she seek a stay of the proceedings for abuse.
Availability and application of section 13
If section 189A of the Procedure Act is subject to section 13 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) and the Magistrate had been satisfied that the precondition under subsection 13(1) of the Sentencing Act had been met, the Magistrate’s decision not to order payment of prosecution costs would have been justified.
Availability of section 13
An order for payment of prosecution costs under section 189A of the Procedure Act falls within paragraph (c) of the definition of “pecuniary sum” in the Sentencing Act. Subsection 13(1) of the Sentencing Act is expressed in mandatory language. Under subsection 13(1a), in considering whether the defendant would be able to comply with an order to pay a pecuniary sum, the court should have regard to the fact that defendants may enter into arrangements under Part 9 Division 3 for extended payments. At the time of its enactment in 1988, various existing legislative provisions imposed minimum fines for various offences. In these circumstances, on its proper construction, section 13 of the Sentencing Act applies to pecuniary sums notwithstanding that specific legislation is expressed to require the imposition of a specific or minimum pecuniary sum. This is well established by authority in relation to section 13 or its equivalents.[72] It is not challenged by the Police.
[72] Davies v White (1991) 56 SASR 30 at 38-39 per Legoe J; Holland v White [1993] SASC 4350 per Matheson J; Mitsubishi Motors Australia Ltd v Ghassemi-Far (Unreported, Supreme Court of South Australia, Matheson J, 20 September 1996); Button v Police (1997) 71 SASR 258 at 262-263 per Lander J; Hemming v Perkins [1999] SASC 212; (1999) 74 SASR 307 at [89]-[94] per Martin J.
The Police contend that, on their proper construction, section 189A of the Procedure Act is not subject to section 13 of the Sentencing Act. I reject that contention. Once it is accepted that section 13 of the Sentencing Act applies notwithstanding mandatory fixed or minimum fines (or other pecuniary sums) imposed by specific legislation, there is no reason to differentiate section 189A of the Procedure Act. The evident purpose of section 13 is to ensure that courts do not make orders for the payment of pecuniary sums which are beyond the realistic means of the defendant. This purpose applies as much to an otherwise mandatory order for prosecution costs as it does to any other otherwise mandatory pecuniary sum.
The Police contend that, because subsection 189A(3) of the Procedure Act contains its own mechanism for the avoidance or reduction of an order for prosecution costs, a legislative intention is displayed that it covers the field to the exclusion of section 13 of the Sentencing Act. This approach to construction is often expressed in terms of the Latin maxim expressum facit cessare tacitum.[73]Like all maxims, this maxim is merely the pithy expression of one strand of reasoning which may or may not be applied, to a greater or lesser extent, in the construction of legislation by reference to its wording, structure, context and evident purpose. [74] However, sections 189A(3) of the Procedure Act and 13(1) of the Sentencing Act address quite disparate matters. Section 189A(3) gives to the prosecution a bare executive power or direction to waive the entitlement to an order for $100 by way of prosecution costs; whereas section 13(1) confers upon the court a judicial power and imposes upon the court an obligation not to make an order for payment of a pecuniary sum if the precondition is satisfied. Section 189A(3) does not refer to any criteria for the exercise of the power or discretion by the prosecutor; whereas section 13(1) only applies when the very specific criterion is satisfied that the means of the defendant are such that the defendant could not comply with the order or compliance would unduly prejudice the welfare of the defendant’s dependants.
[73] See Anthony Hordern & Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 7 per Gavan Duffy CJ and Dixon J and 20-21 per McTiernan J and R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550 per Dixon J.
[74] See Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 632 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 575 per Mason CJ, Dawson, Toohey and Gaudron JJ.
The Police also invoke the Latin maxim generalia specialibus non derogant, namely that general provisions do not derogate from specific provisions. They contend that section 189A of the Procedure Act is a specific provision which should prevail over the general provision of section 13 of the Sentencing Act. However, to the extent that this maxim (or strand of reasoning of this type) is apposite, section 13 of the Sentencing Act ought to be regarded as the specific provision. It applies in the very specific and limited circumstances in which the defendant does not have the means to pay a pecuniary sum. Section 189A is a provision which applies generally to all prosecutions by police officers.
The Police also invoke the maxim leges posteriores priores contrarias abrogant, namely that later legislative provisions repeal earlier inconsistent legislative provisions.[75] However, an implied repeal is “a comparatively rare phenomenon” and is not to be implied “unless actual contrariety is clearly apparent”.[76] For the reasons given above, there is no contrariety clearly apparent between section 189A of the Procedure Act and section 13 of the Sentencing Act.
[75] Goodwin v Phillips (1908) 7 CLR 1 at 7 per Griffith CJ, 10 per Barton J and 14 per O’Connor J.
[76] Butler v Attorney-General (Vic) (1961) 106 CLR 268 at 275 per Fullagar J (see also at 290 per Windeyer J) subsequently approved by South Australia v Tanner (1989) 166 CLR 161 at 171 per Wilson, Dawson, Toohey and Gaudron JJ; Shergold v Tanner [2002] HCA 19; (2002) 209 CLR 126 at [34]-[35] per Gleeson CJ, McHugh, Gummow, Kirby and Hayne JJ.
Finally, the construction advanced by the Police would produce anomalous results. Section 13 would apply to an order for costs in favour of the Police where the prosecution was undertaken by a lawyer (from the Director of Public Prosecutions, the Crown Solicitor’s Office or otherwise) but not where it was undertaken by a Police Officer. It would apply to prosecutions by other government agencies or private persons, but not to prosecutions by the Police where the Police are represented by a Police Officer.
Satisfaction of precondition
The Magistrate did not say that he was acting under section 13 of the Sentencing Act or express any satisfaction that the precondition had been satisfied. Ms Murray did not adduce any evidence before or submit to the Magistrate that she would be unable to comply with an order under section 189A or that such compliance would unduly prejudice her dependents’ welfare. The Magistrate ordered that Ms Murray pay a fine and impounding costs totalling $2,086.40. It is almost inconceivable that Ms Murray could have satisfied the Magistrate that she would be unable to pay a further $100. Ms Murray does not contend that the factual precondition for the application of subsection 13(1) of the Sentencing Act was satisfied. Section 13 afforded no ground for the Magistrate to decline to order prosecution costs of $100.
Conclusion
I agree with the orders proposed by Kourakis CJ and Gray J.
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