R -v- BARTLETT [No 17]
[2014] WASC 492
•18 DECEMBER 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: R -v- BARTLETT [No 17] [2014] WASC 492
CORAM: EM HEENAN J
HEARD: 28 JULY 2014
DELIVERED : 18 DECEMBER 2014
FILE NO/S: INS 107 of 2012
BETWEEN: THE QUEEN
Prosecution
AND
PETER MERVYN BARTLETT
First AccusedRONALD GEORGE SAYERS
Second AccusedAUSTRALIAN CRIME COMMISSION
First RespondentCLIFFORD CHANCE
Second Respondent
Catchwords:
Criminal law - Witness summonses for production of documents - Applications to cancel witness summonses - Costs - Proceedings on the Crown side of the court - Availability of costs - Statutory power to award costs - Discretion relating to costs - Quantum of costs - Procedure for determining disputed claims for costs
Legislation:
Australian Crime Commission Act 2003 (Cth), s 30
Criminal Code (Cth), s 135.4(3)
Criminal Procedure Act 2004 (WA), s 123, s 166, s 163, s 123
Judiciary Act 1903 (Cth), s 39(2), s 68, s 79
Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012
Legal Profession Act 2008 (WA), s 275
Official Prosecutions (Accused's Costs) Act 1973 (WA), s 4(1)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935, s 37, s 38
Result:
Order that Messrs Bartlett and Sayers pay certain costs to the CDPP in amounts to be determined in accordance with these reasons.
Order that CDPP pay certain costs to Clifford Chance in amounts to be determined in accordance with these reasons.
Order that Messrs Bartlett and Sayers pay certain costs to the ACC in amounts to be determined in accordance with these reasons.
Category: A
Representation:
Counsel:
Prosecution : Mr P R Roberts SC & Mr A L Troy
First Accused : Mr C Boyce
Second Accused : Mr D Staehli SC
First Respondent : Mr M Ritter SC & Ms T Ling
Second Respondent : Ms K A Vernon
Solicitors:
Prosecution : Director of Public Prosecutions (Cth)
First Accused : Clifford Chance
Second Accused : Clifford Chance
First Respondent : Australian Government Solicitor
Second Respondent : Clifford Chance
Case(s) referred to in judgment(s):
Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2009) 223 CLR 251
Attorney-General (Qld) v Holland [1912] HCA 26; (1912) 15 CLR 46
Australian Crime Commission v Bartlett [No 3] [2013] WASC 108
Bartlett v The Queen [2012] WASC 503; (2012) 232 A Crim R 214
Bartlett v The Queen [No 10] [2014] WASC 277; (2014) 287 FLR 402
Bartlett v The Queen [No 2] [2013] WASC 83
Bartlett v The Queen [No 6] [2013] WASC 304
Breedon v Kongras (Unreported, WASC, Library No 960570, 25 September 1996)
Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159
Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529
Director of Public Prosecution (WA) v Mansfield [2008] WASCA 5; (2008) 35 WAR 431
Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367
Haddon v Everitt [2001] WASCA 420; (2001) 126 A Crim R 418
Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656
Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
R v Barbaro (1992) 108 ACTR 1; (1992) 106 FLR 387
R v Bartlett [No 5] [2013] WASC 132
R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535
R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249
R v Wright (1992) 77 A Crim R 67
Re Suitors' Fund Act 1964 (WA); Ex parte Brazier [2002] WASC 243; (2002) 135 A Crim R 48
EM HEENAN J: Theseus was fortunate enough to have Ariadne's thread to lead him successfully out of the Cretan labyrinth. No similar assistance is available to lead me, nor any captive reader, through the convoluted avenues followed by the various applications to set aside witness summonses issued by these parties. This is another occasion when analysis must respond to a remorseless volume of prosaic submissions.
Application of State law
This prosecution is by the Commonwealth Director of Public Prosecutions (CDPP) relating to alleged breaches of federal law - Criminal Code (Cth) s 135.4(3). Jurisdiction is conferred upon this court by s 39(2) of the Judiciary Act 1903 (Cth). As a result, this court is exercising federal jurisdiction in dealing with the case - Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 541; Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2009) 223 CLR 251, 222 [30]; Director of Public Prosecution (WA) v Mansfield [2008] WASCA 5; (2008) 35 WAR 431 [44]; and R v Duncan;Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535. By s 68 and s 79 of the Judiciary Act the laws of Western Australia are to apply, except as otherwise provided. These include all laws relating to the practice and procedure of the conduct of the prosecution within this court - Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367 and Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457, 476. It is for this reason, therefore, that the power to award costs and the manner of its exercise is to be determined, in the present case, in accordance with s 37 of the Supreme Court Act and/or s 123 and s 166 of the CPA.
Background
Much earlier in this case applications were made by the first and second accused and also by a third accused, Deborah Jeanne Grace, seeking orders that the prosecutions against those three should be permanently stayed. Initially, those applications resulted in a temporary stay of the prosecution pending the outcome of an appeal then pending before the Court of Appeal in the Supreme Court of New South Wales - Bartlett v The Queen [2012] WASC 503; (2012) 232 A Crim R 214. However, following the decision of the Court of Appeal of NSW on that appeal, R v Seller; R v McCarthy [2013] NSWCCA 42; (2013) 232 A Crim R 249 the stay applications came on for further hearing and the partial stay was set aside. On 21 March 2013, after dealing with other issues but without finally determining the applications for a stay of the prosecution, those were then adjourned for further hearing - R v Bartlett [No 5] [2013] WASC 132. The applications were then finally heard and determined by a decision of 15 August 2013 which dismissed all the applications for a permanent stay: Bartlett v The Queen [No 6] [2013] WASC 304.
There was then a trial of the accused Bartlett, Sayers and Grace, together with a fourth accused, Dunn, over the period August to November of 2013 which resulted in Dunn being convicted and Grace acquitted. As the jury could not agree on any verdicts in respect of Messrs Bartlett and Sayers, they were remanded for retrial before a different jury.
Messrs Bartlett and Sayers then brought fresh applications for a temporary or conditional stay of the prosecution in the light of the decision of the High Court of Australia in Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656, which was delivered on 21 May 2014. After further extensive argument, those applications were heard and dismissed on 30 July 2014 - Bartlett v The Queen [No 10] [2014] WASC 277; (2014) 287 FLR 402.
A retrial of Messrs Bartlett and Sayers before a jury was then conducted in August and September of 2014, but again the jury could not agree on any verdicts. Both accused were therefore remanded again for further retrial but, subsequently, the CDPP decided not to proceed, filed a nolle prosequi, and Messrs Bartlett and Sayers were therefore discharged, bringing to an end these very long‑running proceedings.
Nevertheless, there is a small area of unfinished business arising from various applications which were all incidental to the initial applications for stays of the prosecutions brought by Messrs Bartlett and Sayers and Ms Grace. As an examination of the reasons for decision relating to those stay applications will disclose, each accused was contending that the prosecution should be stayed because of alleged access to, and use made of by the CDPP, including its solicitors and prosecuting counsel, evidence obtained from those three accused compulsorily in the course of confidential examinations by the Australian Crime Commission (ACC) by an examiner pursuant to s 30 of the Australian Crime Commission Act 2002 (Cth) as a result of directions made by the examiner or by a delegate of the ACC authorising disclosure of the transcript of the examinations to, among others, the CDPP and his staff. In support of the stay applications the three accused sought to adduce evidence, by affidavit or otherwise, to show what materials resulting from the compulsory ACC examination had been disclosed to the CDPP and what, if any, use had been made of those materials by the CDPP, its staff or counsel.
To this end, all three accused issued various witness summonses pursuant to s 163 of the Criminal Procedure Act 2004 both to the CDPP and to the ACC seeking production of large quantities and categories of documents alleged to be material to a determination of the controversy over what ACC examination materials had been provided to the CDPP and what use had been made of them and by whom. It will be necessary to identify some of the witness summonses so issued later.
The service of the witness summonses on both the CDPP and ACC then prompted applications by both authorities to cancel the witness summonses in whole or in part pursuant to s 166 of the CPA on various grounds. The grounds relied upon included submissions that some of the witness summonses were so broad or unspecific as to be oppressive and/or an abuse of process; that they were issued when there was no legitimate forensic purpose for them (NLFP); or that they sought the production of documents which were subject to legal professional privilege (LPP) or which were subject to public interest immunity (PII). The ACC appeared by independent counsel to support and press applications for the cancellation of the witness summonses issued against it and counsel for the CDPP appeared and took a similar role in relation to the witness summonses issued against him.
Commendably, counsel for the three accused who had issued the witness summonses, and counsel for each of the authorities which had applied to have them cancelled or set aside, undertook a long process of scrutiny, negotiation and mutual consultation with a view to identifying what documents, if any, could or should be disclosed as a result of the witness summonses; what refinements should be made to the scope of the witness summonses in relation to the breadth of and identification of the documents being sought, and precisely what grounds were relied upon for resisting or refusing production of particular documents from either authority. Inevitably, this process of negotiation, refinement, and clarification of the various witness summonses and the grounds of the opposition to them took quite some time but very substantial progress was achieved. Because of this, the calling on of the various witness summonses before the court and the hearing of the applications to cancel them in whole or in part was raised from time to time, in the course of numerous other interlocutory hearings dealing with contested issues about the admissibility of evidence and the progress of the stay applications and other matters. That resulted in them being adjourned on several occasions to allow the process of negotiation to continue.
As a result of this co-operative approach two of the original witness summonses issued Messrs Bartlett and Sayers were voluntarily withdrawn and replaced by new witness summonses which identified more specifically particular documents or categories of documents of which production was sought. Rather than insist on the issue of new applications by the CDPP and the ACC to cancel those replacement witness summonses, the parties agreed, again commendably, that the original applications by the ACC and the CDPP could remain as suitable vehicles to challenge the replacement witness summonses issued by the accused.
In the course of dealing with these and other interlocutory applications, particularly concerning the admissibility of certain evidence, an issue arose about the relevance and/or admissibility of what became known as the 'Crossline Transactions' and, in particular, a dossier relating to the Crossline Transactions which had been prepared by the solicitors for Messrs Bartlett and Sayers and, in particular, by one of their solicitors, Mr Ian Cochrane. His evidence was adduced by affidavit at one of these interlocutory hearings leading to him being cross-examined and the scope of the Crossline Transactions then receiving closer attention.
The CDPP then issued two witness summonses for the production of documents by a firm of solicitors, Messrs Clifford Chance, who were acting for Messrs Sayers and Bartlett, seeking documents relating to the Crossline Transactions and, in particular, the roles of members of that firm in relation to Crossline. Messrs Clifford Chance then applied to have the witness summonses issued by the CDPP seeking documents relating to Crossline set aside or cancelled. The witness summonses issued by the CDPP to Clifford Chance in relation to the Crossline Transactions, and the resulting applications to have those witness summonses set aside, differ in nature and purpose from the witness summonses issued by the accused to the ACC and the CDPP. The witness summonses in the latter category were directed to obtaining evidence which, so it was submitted, was material to a determination of the then pending stay applications. However, the witness summonses relating to the Crossline Transactions were seeking material submitted to be relevant to issues arising at any trial, namely, the Crossline Transactions themselves.
These various witness summonses and the applications to have them cancelled or set aside in whole or in part were, to the extent that they remained contentious, dealt with by several interlocutory decisions. Broadly speaking, the evidence relating to Crossline was ruled to be relevant and, therefore, admissible in Bartlett v The Queen [No 2] [2013] WASC 83 which also, incidentally, mentioned the existence of the witness summonses and the applications to set them aside without then determining them.
Some of the issues arising from the witness summonses and the applications to have them set aside were dealt with in Australian Crime Commission v Bartlett [No 3] [2013] WASC 108 where, as a result of refinement of the controversies arising, the court was required to rule only on the question of whether certain privilege, LPP or PII, attached to seven specified documents and for which the applications to set aside the witness summonses were treated as convenient vehicles to present those issues for decision. The result there was that the claim for privilege made by the authorities was upheld in respect of three of the specified documents but dismissed in relation to four specified documents, resulting in limited orders for production.
Finally, the fate of the witness summonses issued by the accused for the production of documents by the ACC and the CDPP was heard and determined in R v Bartlett [No 5] [2013] WASC 132 where, because it was held that there was no basis for a stay of proceedings, all of them were set aside.
In relation to the witness summonses issued by the CDPP to Clifford Chance for the production of Crossline documents, the CDPP acknowledged that the first such witness summons was too broad and would not be pursued. The second witness summons for the production of Crossline materials by Clifford Chance and the application to set it aside were not further pursued.
The overall result of all this is that certain of the parties are now pressing for orders to be made for the payment of costs under s 166(2) of the Criminal Procedure Act by the other party to those applications. This has given rise to the present controversy over whether or not any such orders for costs may be made and, if so, how and upon what basis such costs are to be determined or assessed. Involved in these controversies is the question of whether or not costs should be awarded to or against the Crown in connection with proceedings on indictment and whether the ACC should, in this situation, be treated as or equivalent to the Crown or an agent of the Crown.
The witness summonses and the applications to set them aside
There were the following witness summonses issued:
1.On 25 September 2012 Bartlett and Sayers issued a witness summons to the CDPP seeking an extensive range of documents in relation to the stay application (first CDPP witness summons).
That resulted in an application by the CDPP dated 15 October 2012 to cancel the witness summons or to set it aside.
Neither Bartlett nor Sayers then pursued this witness summons and it was cancelled by order made on 21 March 2013 in R v Bartlett [No 5] [8].
2.Messrs Bartlett and Sayers substituted for the first CDPP witness summons a further witness summons issued by them on 19 March 2013 to produce an extensive range of records.
The application by the CDPP to set aside the first CDPP witness summons (1 above) was, by consent, treated as the vehicle by which the CDPP sought to have the second CDPP witness summons cancelled or dismissed.
That second CDPP summons was set aside by order dated 16 April 2013: see R v Bartlett [No 5] [99].
3.The CDPP then issued a witness summons dated 10 December 2012 directed to Clifford Chance seeking the production of certain Crossline documents (the first CDPP Crossline summons).
4.The CDPP then issued a second witness summons dated 10 December 2012 directed to Clifford Chance seeking the production of other Crossline documents (the second CDPP Crossline summons).
Clifford Chance applied by application dated 14 December 2012 to set aside these two CDPP Crossline summonses. When these matters were raised before the Court counsel for the CDPP announced that his client would not pursue or call on the first CDPP Crossline summons, as a consequence of which neither it nor the application to set it aside was further pursued.
5.On 10 September 2012 Messrs Bartlett and Sayers issued a witness summons to the ACC seeking the production of eight categories of documents (the first ACC witness summons). The ACC produced various documents under this summons except for certain specified documents in respect of which it claimed privilege on the basis of public interest immunity and seven documents (under items 4 and 5 of the summons) to which objection was raised on the grounds of absence of legitimate forensic purpose (NLFP) and PII.
6.On 25 September 2012 Messrs Bartlett and Sayers issued a witness summons to the ACC seeking production of a wide variety of documents (the second ACC witness summons).
By application dated 31 October 2012 the ACC applied to set aside or to cancel
(i)so much of the first ACC witness summons as applied to the documents being sought by items 4 and 5, and
(ii)the Bartlett and Sayers second ACC summons dated 25 September 2012 entirely.
That second witness summons was not pressed and was dismissed by order made on 22 March 2013: R v Bartlett [No 5].
The second CDPP Crossline summons remained, as did the application to set it aside, but each was adjourned pending further developments in the prosecution. Neither was ever brought on for further hearing except in relation to this present application for costs.
There were also two summons for the production of documents issued by the accused Deborah Jeanne Grace, substantially in the same terms as the first and second CDPP witness summonses and which resulted in similar dispositions.
The written submissions on the present applications for costs include claims in relation to the witness summonses issued by Mrs Grace (by the ACC but not by the CDPP) but, by the time these applications for costs came to be argued, she had been acquitted of the charge against her in the indictment and was no longer represented in the proceedings. It is unclear whether or not she had notice of these applications for costs but she did not appear whether in person or by counsel. As it is uncertain whether she had notice of these proceedings and as no oral submissions in relation to her position were advanced by any of the applicants for orders for costs, I consider that I should not deal with any matter of costs concerning Mrs Grace on this occasion. I will, however, reserve liberty to apply in relation to her position so that, if so advised, either or both of the CDPP and the ACC can, after giving notice to Mrs Grace, apply to list for hearing any application for costs concerning her.
On 22 March 2013, when moving for orders dismissing the witness summonses issued by Messrs Bartlett and Sayers to the ACC dated 25 September 2012 and 19 March 2013 counsel for the ACC foreshadowed an application for costs against those two accused in relation to those two summonses if the issue were not able to be resolved between the parties.
As to the remaining summonses issued by Messrs Bartlett and Sayers on 10 September 2012 and 19 March 2013, the position was that many of the documents sought by the summons had been provided before the summons had issued but there remained seven documents the subject of dispute where objections had been raised on the grounds of LPP or PII. They became the subject of the decision in R v Bartlett [No 5] given on 16 April 2013 where the claims to privilege from production were upheld in relation to three of the documents but production of the remaining four was ordered.
On 16 April 2013, in the decision in R v Bartlett [No 5] I upheld the application by the ACC to set aside items 4 and 5 of the witness summons issued by Messrs Bartlett and Sayers on 10 September 2012; I also upheld the ACC's application to set aside the witness summons issued by Bartlett and Sayers on 19 March 2013 to the extent to which objections to production remained; and I granted the ACC liberty to apply for costs if an agreement as to costs could not be reached between the parties.
On 30 October 2013 Clifford Chance applied to set aside the witness summonses issued by the CDPP to Clifford Chance requiring the production of the Crossline materials. As previously observed, counsel for the CDPP did not attempt to pursue the first Crossline summons after application to set it aside was first made and the application to set aside the second Crossline summons was never brought on for final determination.
Present applications
As a consequence, there are now three sets of applications for costs before the court. They are:
1.An application by the CDPP dated 17 April 2014 seeking orders that the former accused, Messrs Bartlett and Sayers, should pay reasonable costs of the CDPP in respect of:
(a)the witness summons dated 25 September 2012 for the production of records in relation to the stay application (subsequently cancelled or withdrawn); and
(b)the summons dated 19 March 2013 to produce records or materials relating to the stay application which was set aside or cancelled by order of 16 April 2013.
2.An application by Clifford Chance dated 14 December 2012 seeking costs in respect of the first Crossline summons issued by the CDPP to Clifford Chance dated 12 December 2012.
3.Applications by the ACC that Messrs Bartlett and Sayers should pay its costs of the ACC's application of 31 October 2012 to cancel or set aside:
(i)the Bartlett and Sayers' witness summons of 10 September 2012 insofar as it sought the production of documents listed in items 4 and 5;
(ii)the Bartlett and Sayers' summons of 25 September 2012.
Insofar as the final outcomes after hearings or rulings on the several applications may be significant:
(a)Messrs Bartlett and Sayers abandoned their witness summonses directed to the CDPP dated 25 September 2012, resulting in it being dismissed;
(b)The Bartlett and Sayers substituted summons to the CDPP of 19 March 2013 was set aside by order dated 16 April 2013 (R v Bartlett [No 5];
(c)The first Crossline witness summons issued by the CDPP to Clifford Chance dated 10 December 2012 was abandoned by the CDPP after application had been made to set it aside;
(d)The second Crossline witness summons issued by the CDPP to Clifford Chance also dated 10 December 2012 and subject to an application by Clifford Chance to have it set aside dated 14 December 2012 was never called on for final hearing or determination;
(e)The witness summons issued by Bartlett and Sayers to the ACC dated 10 September 2012 was set aside on the application of the ACC insofar as the witness summons sought the production of the documents referred to in items 4 and 5 of that summons;
(f)The witness summons issued by Bartlett and Sayers to the ACC on 19 March 2013 was set aside in part by the order of 16 April 2013.
As already apparent, the applications to cancel or set aside these various witness summonses were dealt with progressively during the long course of several interlocutory hearings before the first trial. It was convenient for them to be heard either at the same time as or immediately following other interlocutory applications dealing with the stay applications or the contested admissibility of other evidence. At some of these appearances the CDPP, the ACC, the accused Bartlett and Sayers and the firm Clifford Chance were represented by senior counsel and on others by junior counsel, depending upon the significance of the issues to be dealt with at the particular hearing or hearings.
Although, in one sense, the question of whether or not some or all of a witness summons on a criminal prosecution should be cancelled or set aside on application by the person to whom it was directed is a commonplace, even routine, procedure, that was not the case in this present prosecution. This is because the entire factual background relevant to the prosecution and the steps in the conspiracy alleged by the prosecution to have been committed was extremely complicated and covered a long period and many extensive transactions. Consequently, the question of relevance of materials sought by the various witness summonses, to issues arising from the case was itself complicated, as were the issues arising in relation to the claims made for a stay of the prosecution. For these reasons, I am satisfied that on the occasions when they appeared or advised, the engagement and appearance of senior counsel for the several interests was justified and that if costs are being awarded then on occasions when the retention of senior counsel was involved on issues giving rise to a liability for costs suitable allowances for senior counsel should be permitted and, should it be necessary to do so, I would certify for that in respect of each of the successful applications for costs.
Principles relating to awards for costs in proceedings on indictment
Several submissions going to fundamental questions about the power and practice of this court to award costs in proceedings associated with prosecution on an indictment were raised by the parties, together with some subsidiary submissions of narrower impact bearing on particular circumstances of these cases. In substance, the submissions which were advanced were to the effect:
1.That this court has no power to award costs or that established practice demonstrates that no award of costs should be made, in relation to criminal proceedings associated with a trial on indictment.
2.To the extent that there may be a statutory power to award costs, such as s 166(2) of the Criminal Procedure Act, that power should be circumscribed in relation to proceedings on indictment by the traditional practice that no orders for costs are made in favour of or against the Crown.
3.In relation to the claims for costs associated with the applications to cancel or set aside witness summonses in these various cases:
(a)there cannot, or should not, be any award for costs made unless a particular witness summons was actually cancelled or set aside in part;
(b)that where circumstances have arisen in which a power to award costs may have arisen, such as the withdrawal of the original Bartlett and Sayers witness summonses of 25 September 2012 and in other like instances, if an application for costs were not made at the time the witness summons was withdrawn or replaced by another, then that particular application has been concluded and it is now too late for an application for costs to be made, or entertained;
(c)that where there is an application for the cancellation or setting aside of a witness summons but, by consent of the parties, it was used as a vehicle to determine disputed claims for privilege from production, then the summons has not been cancelled or set aside and there is no basis for any award of costs;
(d)that in relation to the application for costs made by the ACC, it is an independent statutory authority and should not be regarded as, or an agent of, the Crown.
It will be convenient to deal with these submissions in turn although, as will be seen, there are areas in which several of them overlap.
Statutory provisions
All parties have made reference to the statutory power of the court generally to award costs conferred by the Supreme Court Act 1935. That is to be found in s 37, which provides:
37.Costs
(1)Subject to the provisions of this Act and to the rules of court and to the express provisions of the Magistrates Court (Civil Proceedings) Act 2004, or any other Act, the costs of and incidental to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom or out of what estate, fund, or property, and to what extent such costs are to be paid.
(2)Nothing in this section shall alter the practice in proceedings in relation to the prerogative and criminal jurisdiction of the Court.
While counsel for the ACC and for Clifford Chance rely upon this provision as a general statutory power allowing costs to be awarded in their favour on their respective applications, counsel for Messrs Bartlett and Sayers rely on s 37(2) for the submission that nothing in the section alters the established practice in the criminal jurisdiction which, so they submit, is against the making of any award of costs to or by the Crown. Each of these submissions is, however, subject to the qualification contained in s 37(1) that the statutory provision is subject to the express provisions of any other Act which, naturally, includes the provisions of s 166 of the Criminal Procedure Act.
The power of this court to award costs against an accused person in favour of a third party who succeeded in applications to have set aside writs of subpoena issued against it by the accused was extensively examined in Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159, which was decided before the CPA was enacted. In that case, Malcolm CJ (Franklyn and Rowland JJ agreeing) decided that a subpoena issued out of the Supreme Court with respect to criminal proceedings should be regarded as issued on the 'Crown side of the Court' notwithstanding that the subpoena was issued to a person who was not a party to the prosecution and that, therefore, the power to award costs arising from the determination of the application to set aside such a subpoena was subject to s 38(2) of the Supreme Court Act. The court decided that there was a clear distinction to be drawn between the payment of costs by an accused where a third party is caused to incur costs by the issuing of a subpoena which is later found to be oppressive, and the right of an accused to a fair trial. The court observed that it is common practice for witnesses in such proceedings to be provided with conduct money and payment for their expenses and that this practice did not place an unfair burden on the accused. Their Honours held that the practice not to award costs for or against the Crown in criminal proceedings was based on the prerogative right of the Crown not to receive or to pay costs but that that practice did not apply as between parties other than the Crown, even on the Crown side of the court.
Significant points of the decision in Carter are that this court has power to determine and award costs under s 37(1) and that that was an instance in which such costs should be awarded against the accused.
Similar reasoning leading to a comparable outcome is to be found in R v Barbaro (1992) 108 ACTR 1; (1992) 106 FLR 387 where Miles CJ held that the Commissioner of the Australian Federal Police was entitled to an award of costs in relation to a subpoena issued by a person who was standing trial on an indictment in the Supreme Court of the ACT.
Those two decisions establish the power of the court, in its jurisdiction under s 37, to entertain and determine orders for costs such as are being sought by the applications now before the court. They also confirm the distinction between the Crown, or the prosecutor for the Crown (here the CDPP) and other government law enforcement agencies such as the Commissioner for the AFP, or other third parties. Consequently, I consider that in this present situation the ACC is not to be treated as the Crown or as an agency of the Crown.
This entire subject has been the subject of helpful analysis and explanation in G E Dal Pont, 'Law of Costs' (2nd ed, 2009) [24.1] - [24.23] - especially [24.17]. The existence of a limited power to award costs to or against an accused in a criminal proceeding in this State is now expressly recognised and confirmed as an exception to the specific statutory prohibition against any such award of costs which is found in s 123 of the CPA. That provides:
123.No fees or costs
(1)An accused must not be charged a fee by a court for or in respect of any act or proceeding that relates to the prosecution of the accused in a superior court.
(2)A superior court cannot order a party to a case to pay another party's costs of or relating to proceedings in the court that relate to a charge in an indictment or a charge on which an accused has been committed to the court, except under section 166(2).
The first point to note is that the applications for costs in the present case have all been made pursuant to a specific statutory power, namely, s 166 of the Criminal Procedure Act which provides:
166.Witness summons, cancelling
(1)On an application by the witness, a party to the case or a person who has a sufficient interest in the witness summons, the court that issued a witness summons may cancel it, wholly or in part and on any terms it feels fit.
(2)On such an application the court may order a party to the application to pay all or some of another such party's costs.
Section 166(2) makes it plain that the power to award costs extends to enabling the Court to order a party to an application to cancel the witness summons in whole or in part to pay all or some of the costs of another party to that application. This includes the power to award costs to the witness who has applied to cancel the witness summons.
As the provisions of s 166(2) of the CPA are broad and general in their application and apply to all forms of trial, not only to prosecutions on indictment, the implications in the submissions made on behalf of Messrs Bartlett and Sayers and Clifford Chance are that this statutory power should be regarded as being subject to the historic disinclination to award costs against an accused person or in favour of the Crown but that it constitutes no impediment to making an order for costs in favour of an accused person or any independent third person.
In Attorney-General (Qld) v Holland [1912] HCA 26; (1912) 15 CLR 46 there is a collection of authorities dealing with the old rule that the Crown neither pays nor receives costs, although, as Griffith CJ recognised at [49], this rule can be excluded by necessary implication. That was a case concerning the entitlement or liability of the Queen's Proctor for costs when intervening in a matrimonial cause and it was held that the Attorney-General was not entitled to receive or liable to pay costs. In analysis of that rule, Barton J referred to authorities illustrating the rule that the Crown is not bound by a statute unless it appears on the face of the statute that it was intended that the Crown should so be bound, which led to his Honour's conclusions that the matrimonial causes legislation then being considered and which conferred upon the court a power to award costs did not apply in the case of an intervention by the Attorney‑General. Isaacs J dissented, essentially on the ground that upon its proper construction the particular legislation conferring the power to award costs did apply to the Crown.
However, that old rule that the Crown neither receives nor pays costs, notably in criminal proceedings, was said by Mason CJ in Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 to have been displaced. The Chief Justice observed that the rule could not survive once courts of summary jurisdiction were given a statutory discretion to award costs in criminal proceedings. Mason CJ was addressing the exercise of a statutory power to award costs in the summary jurisdiction but nevertheless observed (543):
If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reasons of the legal proceedings … Once the principle is established that costs are generally awarded by way of indemnity to a successful defendant, the making of an order for costs against a prosecutor is no more a mark of disapproval of the prosecution than the dismissal of the proceedings.
McHugh J said (567):
Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of successful defendant in summary proceedings. To use them in that manner is to ignore the purpose of the legislature in enacting the legislation.
Counsel for Clifford Chance has cited a passage in the judgment of Dawson J in Latoudis v Casey (559) where, in the course of examining different practices in the several jurisdictions in Australia with regard to the award of costs to a successful defendant in summary proceedings, his Honour said:
In Victoria, little assistance on the question of costs is to be gained from a comparison of summary prosecutions with civil proceedings. The more obvious comparison is with prosecutions for indictable offences where, in the absence of some special statutory provision, costs are awarded to neither side.
Two things must be said about that observation. The first is that Dawson J was dealing with a case involving the exercise of a discretionary statutory power to award costs to a defendant in summary proceedings; secondly, that earlier in the same judgment Dawson J (557) had traced the historical disinclination to award costs in criminal proceedings to 'the basic common law principle that the Crown neither pays nor receives costs', citing Attorney General (Qld) v Holland which, as Mason CJ said, as one of the majority in Latoudis, has now been displaced. Dawson J then traced (557) the gradual development by statute into the common law of a power to award costs, a power which equity had possessed from an early date.
The scope of the decision in Latoudis v Casey was examined extensively in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 but was not in any way qualified or diminished.
These principles and their historic background were also examined in Re Suitors' Fund Act 1964 (WA); Ex parte Brazier [2002] WASC 243; (2002) 135 A Crim R 48 by Roberts‑Smith J where his Honour observed [4]:
At common law it has long been held that costs are not available to a successful defendant in relation to indictable offences: Latoudis v Casey (1990) 170 CLR 534 at 559 and the position was further made clear in R v Wright (1992) 77 A Crim R 67 …
His Honour then went on to cite a passage from the judgment of Brooking J in R v Wright (1992) 77 A Crim R 67 at page 68 which included:
But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs … Costs were, as regards the courts common law, entirely the creature of statute, and this is so also in relation to criminal proceedings …
I consider, therefore, that I must conclude because of authority binding on me or otherwise of highly persuasive authority, that the old rule that the Crown neither pays nor receives costs has now been entirely displaced with the result that, at least in proceedings involving a prosecution on indictment, there is power to award costs but only if created by statute. Where a statutory power is available, however, any consideration of its exercise should not be restricted or impeded by the former rule.
Determination of the quantum of costs
The Official Prosecutions (Accused's Costs) Act 1973 (WA) does not apply to proceedings triable on indictment - s 4(1). Nevertheless, it adopts a procedure for the determination of the quantum of costs which is a useful comparative for the present applications. That Act makes reference to any award of costs (s 6(5)) to be determined in accordance with the scale fixed by a legal costs determination by the Legal Costs Committee (Legal Profession Act 2008 (WA) s 275). The scale utilised in relation to awards for costs in summary proceedings is the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012, but that in turn provides that a party is entitled to recover costs exceeding those set out in the determination if the matter 'is complex or involves a high degree of skill or urgency, if that is reasonable in the circumstances', rule 7(1) and (2) - see generally G E Dal Pont, 'Law of Costs' at [25.32].
So in Breedon v Kongras (Unreported, WASC, Library No 960570, 25 September 1996) Owen J directed that because of the complexity arising, the engagement of senior counsel was justified and an order for costs exceeding the scale was warranted. This scale is not directly applicable but, nevertheless, it provides a convenient starting point - Haddon v Everitt [2001] WASCA 420; (2001) 126 A Crim R 418 [128], 442 - 443 (Steytler J).
In the present instance, I am satisfied that all the applications to set aside the witness summonses which are the subject of these proceedings were complex, both in relation to the grounds relied upon to set aside the particular summonses, and also because of the complex background which needed to be addressed and assimilated in order to place the resulting issues in proper context. For that reason, therefore, I consider that where senior counsel were retained and appeared on the applications, although not on every hearing, whether for the CDPP, or the ACC, or for Messrs Bartlett or Sayers, then suitable allowances for senior counsel should be made. Otherwise, in relation to an assessment of the quantum of costs, I consider that draft bills of costs should be prepared and exchanged based on the time spent by practitioners or clerks engaged on either side at rates taken by analogy from the legal costs determinations or, in the case of counsel, for counsel fees charged and to be allowed on a similar time basis.
It was submitted to me that the determination of the costs should be by a process of taxation before a registrar of the court in a manner analogous to the taxation of costs in civil proceedings between parties. However, I do not consider that that can or should be done. No authority has been cited to me where costs on the Crown side of the court in criminal proceedings have been assessed or taxed by a master or registrar. The power to award costs reposes in the court itself and I consider, therefore, that the parties should exchange draft claims for costs, prepared on analogy with bills of costs, and then attempt to agree on the quantum to be allowed in each individual case. If agreement cannot be reached, then the contending claims, together with written submissions in support of, or in opposition to, the claims, should be filed. Unless any party advances good cause in written submissions for the matter to be the subject to further hearing in open court, I will determine the quantum of such claims on the papers.
Determination of the individual claims for costs
This then leads me to a consideration and determination of the claims for costs made by the various parties and the extent to which each such claim, where successful, should be allowed.
The present applications for costs have already been identified and listed in [27] above and are now dealt with in the same order.
The first is the application by the CDPP seeking orders that Messrs Bartlett and Sayers should pay its reasonable costs of the witness summonses which they issued dated 25 September 2012 and the witness summons dated 19 March 2013.
The witness summonses by the two accused dated 25 September 2012, although issued, were not pressed after application had been made by the CDPP for them to be cancelled. I consider, therefore, that the CDPP is entitled to be paid his costs for applying to set aside that summons and all costs thrown away by reason of the abandonment of that witness summons to produce documents, up to and including the appearance by counsel on the occasion when the court was informed that the witness summons would not be pressed. I therefore order that Messrs Bartlett and Sayers pay to the CDPP its costs in association with the summons calculated in the manner already explained.
In relation to the replacement witness summons dated 19 March 2013 issued by Messrs Bartlett and Sayers producing materials relating to the stay application, I consider that the application by the CDPP to have that summons cancelled (utilising the same application as had issued to cancel its predecessor) should also result in an order that Messrs Bartlett and Sayers should pay to the CDPP all additional costs incurred in connection with the application to set aside that witness summons. That summons was set aside or cancelled by the order of 16 April 2013. Again, I will order that Messrs Bartlett and Sayers pay to the CDPP its costs and that they are to be calculated and determined in the manner previously explained.
The next application is by Clifford Chance by summons of 14 December 2012 to set aside the first Crossline summons issued by the CDPP to Clifford Chance dated 12 December 2012. The summons to cancel the witness summons is dated 14 December 2012 and, as soon as that was brought on for hearing, counsel for the CDPP announced that it would not be pressed. Accordingly, I consider that Clifford Chance is entitled to an order that the CDPP pay its costs of and incidental to the issue of its application of 14 December 2012 seeking an order for the cancellation of the first Crossline summons up to and including the day on which the CDPP announced to counsel that that witness summons would not be pursued. An order to that effect will be made and the costs are to be calculated and determined in the manner already explained.
The next application is by the ACC that Messrs Bartlett and Sayers should pay its costs of the ACC's application of 31 October 2012 to cancel:
(i)the Messrs Bartlett and Sayers witness summons of 10 September 2012 insofar as it sought the production of documents listed in items 4 and 5.
(ii)Messrs Bartlett and Sayers summons on 25 September 2012.
As a result of the cooperation between the solicitors and accountants previously described, these summonses issues by Messrs Bartlett and Sayers to the ACC and the ensuing applications by the ACC to set them aside were refined in the first place to deal with disputed claims as to privilege and the second witness summons was set aside in part by order of 16 April 2013, but, otherwise, were not further dealt with by the court. They remained pending but did not require any further determination in view of the resolution of other matters and the dismissal of the stay applications.
On 16 April 2013, I set aside items 4 and 5 of the Bartlett and Sayers summons of 10 September 2012 which had been issued to the ACC. The ACC was, therefore, partially successful in setting aside the accused's witness summons of 10 September 2012 and, consequently, should be entitled to recover its costs of that application insofar as they extended to or were associated with pars 4 and 5 of the summons, but not otherwise. Accordingly, the order for costs for Messrs Bartlett and Sayers to pay to the ACC its costs of that summons again to be calculated and determined in the manner previously explained.
The Bartlett and Sayers summons to the ACC for the production of documents dated 20 September 2012 was not pursued after application had been made by the ACC to set it aside. It follows that I consider that Messrs Bartlett and Sayers should pay the ACC its costs of the application made to set aside the summons and all costs thrown away by the ACC up to and including the point when those accused intimated that that summons to set aside the witness summons would not be pursued. Once more, the calculation and determination of those costs should follow the method previously explained.
In case any difficulties arise in implementing the orders which will be made to give effect to these determinations or in the event that there is any issue from these applications which had not been resolved by these orders, there will be liberty to apply. These reasons will be made available to the parties immediately following their publication and the parties are directed to endeavour to bring in agreed minutes of orders to give effect to these decisions within 28 days. In the event that agreement on the form of orders cannot be reached, the parties may file minutes setting out the orders contended for any relevant written submissions which will then be on the papers unless, for good reason, any party contends that a further oral hearing is necessary.
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