R v Azad
[2007] VSC 149
•16 May 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No.6573 of 2006
| THE QUEEN | Plaintiff |
| v | |
| ZAKI MOHAMMAD AZAD & COUNTY COURT OF VICTORIA | Defendant |
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JUDGE: | CURTAIN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2007 | |
DATE OF JUDGEMENT: | 16 May 2007 | |
CASE MAY BE CITED AS: | The Queen v Zaki Mohammad Azad & County Court of Victoria | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 149 | |
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APPEARANCES: | Counsel | Solicitors | |
| For the Plaintiff | Mr Trapnell | Office of Public Prosecutions | |
| For the Firstnamed Defendant | Mr Johns |
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| For the Secondnamed Defendant | No appearance |
HER HONOUR:
On 26 April 2007 I ordered that the order of the learned trial judge granting a stay on Counts 1 and 2 of Presentment No.S00199207 be quashed and the matter be remitted to the County Court for trial according to law.
Mr Trapnell on behalf of the plaintiff now applies for costs.
The jurisdiction to award costs is within the discretion of the Court pursuant to s.24 (1) of The Supreme Court Act. Subsection(2) of that Act applies to preserve the practice in criminal proceedings and requires the otherwise ample jurisdiction over costs conferred by s.24 to be exercised conformably with the practice that the Crown neither gives nor receives costs. (See Perkins v County Court of Victoria and Others[1]) It is accepted that a judicial review pursuant to Order 56 of The Supreme Court Rules in the circumstances before this Court is a criminal proceeding. Indeed as Charles JA stated in Perkins’ case an application for judicial review under Order 56 of the Supreme Court Rules seeking relief “in the nature of certiorari” would be characterised as a criminal proceeding because the underlying proceeding is obviously criminal.[2] However, Phillips JA in that case doubted whether the practice extended to an application for judicial review under Order 56. If the practice does extend to these proceedings I would not order that the first named defendant pay the plaintiff’s costs.
[1][2000] VSCA 171.
[2]Ibid.
Mr Trapnell has submitted, in any event, that a practice must yield to an express statutory power. He submitted that s.24(1) of The Crimes Criminal Trials Act 1999 gives power to a Trial Court to order costs in a criminal proceeding where, inter alia, there has been a failure by a party to comply with the requirement under the Act. Mr Trapnell submitted that the defendant in proceedings before the County Court was in breach of this section in that the Crown was not put on sufficient notice that a question of law was to be raised, to enable the prosecutor to prepare a comprehensive submission to assist the learned trial judge and if he had otherwise been able to, her Honour would likely not have fallen into error. Further he submitted there are good public policy reasons as to why costs should be ordered so as to ensure strict compliance with the provisions of the Crimes Criminal Trials Act 1999 the purpose of which is to increase the capacity for judicial management of criminal trials and improve the efficiency of those trials.
Section 10 of the Crimes Criminal Trials Act provides that a party who intends to raise a question of law must at least 14 days before the commencement of the trial or, if the party is not aware within that period of the question of law, as soon as possible as the party becomes aware of it (emphasis added) notify the Court that a question of law has arisen that requires determination.
Mr Johns, who was also Counsel for the first named defendant in the County Court, submitted that he advised the prosecutor on the afternoon before the trial that he may be raising the issue the following morning but was at that time undecided. The matter was raised the following morning and thus it could not be said that the first named defendant was strictly in breach of s.10 of the Act.
When Counsel for the first named defendant raised the matter in Court the following morning it appears from the transcript that the prosecutor had the relevant authorities with him and was apprised of the issue.
The prosecutor responded to the first named defendant’s submission and cited authority to the learned Trial Judge. He raised with Her Honour all the relevant arguments, which were indeed submitted before this Court. At no time did he ask for an adjournment by reason of non-compliance with s.10 of the Act. Her Honour indicated that she would be ruling on the issue on the Monday morning and that she regarded the matters as fully canvassed and the prosecutor did not indicate then that he would wish to make further submissions. Indeed the prosecutor stated to Her Honour, “We will wait for your ruling on Monday morning.” Thus it cannot be said that the prosecutor was denied the opportunity to adequately canvass the issues with Her Honour and to respond to and give answer to the respondents submission. Certainly the prosecutor endeavoured to make further submissions on the Monday morning and characterised those submissions as the same submissions to be further developed and certainly he was denied that opportunity. By then Her Honour had considered the matter over the weekend and subsequently gave her ruling and in circumstances where Her Honour had made it clear to parties that she viewed the matters as having been fully canvassed and no objection was taken by counsel, the purposes of the Crimes Criminal Trials Act should here be kept in mind.
In these circumstances it cannot be said, as Mr Trapnell submitted, that had the first named defendant complied with his obligations under the Act the present proceedings may have been rendered unnecessary.
If there had been clear non-compliance with s.10 of the Crimes Criminal Trials Act then that may have been an appropriate basis to seek an order for costs pursuant to s.24 of The Crimes Criminal Trials Act if the matter was adjourned off to permit the prosecutor more time to respond to the submission but that is not what occurred here.
No doubt there are good public policy considerations as to why there should be strict compliance with the provisions of The Crimes Criminal Trials Act but in my view this case is not the appropriate vehicle to achieve that end and accordingly I do not propose to make an order for costs in favour of the plaintiff.
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