Question of Law Reserved (No 1 of 2018) [No 2] - [2019] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
QUESTION OF LAW RESERVED (NO 1 OF 2018) [NO 2]
[2019] SASCFC 17
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Lovell and The Honourable Justice Hinton)
22 February 2019
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW
CRIMINAL LAW - PROCEDURE - COSTS
In Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128 the Full Court determined that s 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) was invalid. The question of the validity of s 9(2) had been reserved for determination by the Full Court by a judge of the District Court under s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The question reserved was relevant to the sentencing of Mr Stephen Hamra by the District Court and was answered in Mr Hamra’s favour. Subsequently Mr Hamra applied for his costs. Counsel for Mr Hamra submitted that the power conferred by s 351A CLCA was broad enough to include an order for an award for costs.
Held, per Hinton J (Vanstone and Lovell JJ agreeing), dismissing the application:
1. The Full Court does not have the power to award costs on a question reserved under Division 2 Part 11 of the CLCA save as conferred by s 351B(1). Section 351B(1) does not apply in the present case.
Acts Interpretation Act 1915 (SA) s 19(1)(c); Criminal Appeal Act 1907 (UK); Criminal Appeals Act 1924 (SA) s 16; Criminal Law Consolidation Act 1876 (SA); Criminal Law Consolidation Act 1935 (SA) ss 350, 351A, 351B, 352, 353, 359(f), 363; Crown Cases Act 1848 (UK); Supreme Court Act 1935 (SA) s 40; Statutes Amendment (Attorney-General's Portfolio) (No 2) Act 2017 (SA) s 9(2), referred to.
Channel Nine SA Pty Ltd v Police (No 2) (2014) 121 SASR 87, applied.
R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295, discussed.
Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128, considered.

QUESTION OF LAW RESERVED (NO 1 OF 2018) [NO 2]
[2019] SASCFC 17
Court of Criminal Appeal: Vanstone, Lovell and Hinton JJ
VANSTONE J:

I agree with Hinton J.
LOVELL J:
I agree with Hinton J.
HINTON J:
On 5 December 2018 this Court determined that s 9(2) of the Statutes Amendment (Attorney-General’s Portfolio) (No 2) Act 2017 (SA) was invalid after a judge of the District Court reserved that issue to this Court for consideration under s 350(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).[1] The judgments delivered explain the circumstances in which the question reserved arose and the relevance of its resolution to the sentencing of Mr Stephen Hamra. In short, in the result Mr Hamra has succeeded. He now seeks his costs. Two questions arise; first, does this Court have the power to make an award of costs consequent upon determining a question reserved under s 350(2) CLCA? Second, if it does, should it order the Crown to pay Mr Hamra’s costs of and occasioned by the reference?
[1] Question of Law Reserved (No 1 of 2018) [2018] SASCFC 128.
It was rightly accepted by the parties that any power possessed by this Court to award costs must be sourced in statute.[2] Counsel for the Director referred to s 40(1) of the Supreme Court Act 1935 (SA) as a possible source. In Channel Nine SA Pty Ltd v Police (No 2) Kourakis CJ, Blue and Parker JJ considered the development of the law of costs informing the breadth of the power conferred by s 40.[3] Against that background they concluded:[4]
Section 40(1) of the Supreme Court Act 1935(SA) confers on this Court a power to order costs in civil proceedings in similar terms to s 5 of the 1890 Act and similar powers are conferred on the District Court and the Magistrates Court.
…
There is no power to award costs in criminal proceedings in the District Court and Supreme Court at first instance, nor on an appeal to the Full Court of this Court under section 352 of the Criminal Law Consolidation Act 1935(SA). There is no general power to award costs in committal proceedings in the Magistrates Court. There is generally power to award costs in criminal proceedings heard summarily in the Magistrates Court and on an appeal to the Supreme Court against a judgment in such a proceeding.
[footnotes omitted]
[2] At common law there was no power to award costs other than by way of damages; see Channel Nine SA Pty Ltd v Police (No 2) (2014) 121 SASR 87.
[3] (2014) 121 SASR 87; see also Wright, Danci and Currie (1992) 77 A Crim R 67.
[4] Channel Nine SA Pty Ltd v Police (No 2) (2014) 121 SASR 87 at [23], [25].
Section 40 may, therefore, be excluded.
Counsel for Mr Hamra points to s 351A(1) CLCA and submits that the power conferred by that section is broad enough to include an order awarding costs. Section 351A is to be found in Part 11 Division 2 CLCA. It provides:
351A—Powers of Full Court on reservation of question
(1)The Full Court may determine a question reserved under this Part and make consequential orders and directions.
Examples—
The Full Court might, for example, quash an information or a count of an information or stay proceedings on an information or a count of an information if it decides that prosecution of the charge is an abuse of process.
The Full Court might, for example, set aside a conviction and order a new trial.
(2)However—
(a)   a conviction must not be set aside on the ground of the improper admission of evidence if—
(i)the evidence is merely of a formal character and not material to the conviction; or
(ii)the evidence is adduced for the defence; and
(b)   a conviction need not be set aside if the Full Court is satisfied that, even though the question reserved should be decided in favour of the defendant, no miscarriage of justice has actually occurred; and
(c)   if the defendant has been acquitted by the court of trial, no determination or order of the Full Court can invalidate or otherwise affect the acquittal.
For the following reasons I do not accept this submission.
First, to my mind it strains the ordinary meaning of the text to characterise an order awarding costs as an order that is consequential upon the determination of a question reserved. A more natural meaning would be that a consequential order is one that gives effect to the answer given to the question reserved. That is, the consequence is one flowing from the answer to the question. Thus, a consequential order is an order made in relation to the prosecution in which the reserved question arose. Section 351A(2) suggests this to be so, as do the examples provided.[5] I would construe ss 353(2a)(c) and 353(3a)(b) similarly.
[5] The examples form part of the Act; Acts Interpretation Act 1915 (SA), s 19(1)(c).
Second, contextually, the powers contained in Part 11 Division 2 CLCA are adjunctive to the criminal jurisdiction conferred on the District and Supreme Courts. There is no power to award costs in those jurisdictions. It occurs to me that it would be odd to empower this Court to award costs for a question reserved that arises in the course of such proceedings and which, but for the question being reserved, might continue to verdict after the question is determined without any such entitlement.
Third, and related to the second, if the matter proceeds to verdict a question that might have been reserved may ground an appeal under s 352 CLCA in which case, if the appellant succeeds, there is no power to award costs. I make plain that I do not consider that s 363 CLCA speaks to powers contained in Part 11 Division 2 CLCA. Rather, in my view s 363 speaks to s 359(f) CLCA and, in effect, conditions the grant of power contained in that section. That is, where s 359(f) empowers the Full Court to “exercise in relation to the proceeding of the Court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters”, s 363 effectively excludes from that grant the power to award costs contained in s 40 of the Supreme Court Act 1935 (SA) as picked up by s 359(f). Put slightly differently, but for s 359(f) CLCA, s 363 would not be required.
Further, I accept that in some of the older authorities powers to state a case or reserve a question have been described as appeals,[6] however those older authorities generally deal with the reservation of a question after conviction. In this State that was the case. The genesis of Part 11 Division 2 CLCA is to be found ss 66-70 of Act No 6 of 1859 (SA) which provided for the reservation of a question that arose on the trial of any treason, felony or misdemeanor where the accused was convicted, for consideration by the Supreme Court in terms little different to those to be found in the Crown Cases Act 1848 (UK) which created the Court of Crown Cases Reserved. Importantly, upon the reservation of a question of law the judge was empowered to “respite execution of the judgment on such conviction, or postpone the judgment until such question shall have been considered and decided”[7] and the Supreme Court, sitting as the Court of Criminal Appeal, was vested with:[8]
full power and authority to hear and finally determine the said question, and thereupon to reverse, affirm, or amend any judgment which shall have been given on the indictment or information on the trial whereof such question shall have arisen, or to avoid such judgment, and to order an entry to be made on the record, that in the judgment of the Supreme Court the party convicted ought not to have been convicted, or to arrest the judgment, or order judgment to be given thereon at some other Session of Oyer and Terminer or Gaol Delivery, or at some other sitting of the Local Court where the question arose, if no judgment shall have been before that time given, as they shall be advised, or to make such other order as justice may require; ...
[6]    See R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295 at [90] (Doyle CJ).
[7]    Act No 6 of 1859 (SA), s 66.
[8]    Act No 6 1859 (SA), s 67.
In R v Thaller and Gee (Question of Law Reserved) Doyle CJ noted that the procedure for reserving a question of law for consideration by the Full Court was originally only available after a trial and conviction.[9] In 1969 the power was expanded to include questions arising on sentencing, in 1980 to allow for the reservation of questions of law after an acquittal, and in 1995 to include questions as to how a judicial discretion should be exercised and decision on issues antecedent to trial.[10]
[9] (2001) 79 SASR 295 at [34]. See Act No 6 of 1859 (SA) and the Criminal Law Consolidation Act 1876 (SA).
[10] R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295 at [34].
Thus, I do not think the current powers contained in Part 11 Division 2 CLCA constitute an appeal within the meaning of s 363 CLCA. In arriving at that conclusion I also rely upon the history of Part 11 Divisions 2 and 3 CLCA. The origin of Part 11 Division 3 may be traced to the Criminal Appeals Act 1924 (SA). That Act created a right of appeal in criminal cases that had not previously existed. In this regard South Australia followed developments in the United Kingdom and enacted what has become known as the common form appeal provision which first appeared in the Criminal Appeal Act 1907 (UK).
Where Act No 6 of 1859 (SA) and the Criminal Law Consolidation Act 1876 (SA) contained no provision dealing with the question of the costs of a question reserved, s 16 of the Criminal Appeals Act 1924 (SA) did. Section 16 is the predecessor to s 363 CLCA. Quite obviously, s 16 being in a different Act, did not apply to the question reserved procedure contained in the Criminal Law Consolidation Act 1876 (SA). In 1935 the Criminal Appeals Act 1924 (SA) and Criminal Law Consolidation Act 1876 (SA) ss 397-401 were repealed and re-enacted in Part 11 CLCA.
Fifth, s 351B makes specific provision for costs in the case of a question reserved on application of the Crown on an acquittal. It might be said that s 351B merely removes the discretion from the Court that exists under s 351A(1) in the case of acquittals. However, the underlying policy appears to be that the acquitted defendant whose liberty is not in jeopardy (because the Court cannot set aside the acquittal irrespective of the answer to the question reserved)[11] should not be burdened by the costs of a proceeding that can have no direct consequence for him or her. That may be contrasted with the position under s 353(2a) CLCA (as I would construe it). The difference suggests that s 351B(1) aside, there is no power to award costs.
[11] Criminal Law Consolidation Act 1935 (SA), s 351A(2)(c).
Lastly, if I am wrong in the construction I would afford ss 353(2a)(c) and 353(3a)(b), s 363 would have the consequence that those powers do not extend to awarding costs. The anomaly between pursuing a question of law on appeal and as part of a reserved question vis-à-vis costs remains. The same may be said in relation to a question antecedent to trial. In my view, the anomaly suggests that s 351B does not qualify or condition a broader power, but rather provides a limited power.
In my view, this Court has no power to award costs on a question reserved under Division 2 Part 11 CLCA save that contained in s 351B(1) CLCA.
Before concluding, I should indicate that I have not overlooked the principle that generally a court should not read down a grant of jurisdiction.[12] However, the textual and contextual indicators to which I have referred and the resultant consistency in the treatment of costs across Divisions 2 and 3 of Part 11 CLCA, with the one express exception (s 351B CLCA), persuade me to the conclusion I have reached.
[12] Owners of Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421 (The Court).
Accordingly, I would refuse the application.