R v Driscoll

[2008] QDC 25

DISTRICT COURT O F QUEENSLAND

CITATION:	R v. Driscoll [2008] QDC 25
PARTIES:	THE QUEEN
v
LEE JOHN DRISCOLL
FILE NO/S:	Indictment 860 of 2006
DIVISION:	Criminal
PROCEEDING:	Application for costs against the prosecution
ORIGINATING
COURT:	District Court
DELIVERED ON:	27 February 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 February 2008
JUDGE:	Robin QC DCJ.
ORDER:	Application dismissed
CATCHWORDS:	District Court of Queensland Act 1967 s 60 does not confer jurisdiction to award costs in criminal proceedings
COUNSEL:	Brett Walker SC and di Carlo for Mr Driscoll Ross Martin SC for the DPP
SOLICITORS:

1. Mr Driscoll was acquitted by a jury when he faced a charge of fraud last year. The trial began on 13 March 2007. A co-accused facing the same charge was convicted, and has appealed. Mr Driscoll’s counsel at the end of the trial on 4 May 2007 foreshadowed an application for costs against the Crown, which he volunteered was a difficult one to pursue. It was finally made on 18 February 2008, with senior counsel brought in, who acknowledged the same difficulty, but argued that developments in the law meant that older adverse authority might no longer stand in the way. On the day, the application was rejected, with an indication that, in deference to the argument of Mr Walker SC and that of Mr Martin SC (appearing for the DPP), written reasons would be published.

2. One does not conceive of the criminal jurisdiction as one in which costs (typically the creature of statute) are awarded. On occasion, judges have thought it appropriate to award costs against the Crown, as did Hart J in R v Knott [1974] Qd R 58 and Kimmins DCJ by orders brought before the Full Court in R v His Honour Judge Kimmins, Ex parte Attorney-General [1980] Qd R 524, decided on 16 December 1977. Hart J died before the opportunity to revisit his decision on his return from circuit could be availed of; it seems that an ex gratia payment of $5,000 was made to Dr Knott. The Full Court quashed the District Court Judge’s orders and overruled Knott. The decision was that nothing in any Act or rules of court either by express words or by necessary implication relevantly removed the prerogative right of the Crown not to pay costs. The decision is plainly binding on this court and should be followed unless it is demonstrated clearly to no longer represent the law.

3. Mr Martin collected venerable and more recent authority to support the Full Court’s view, beginning with Blackstone’s Commentaries Book 3 ch 24:400:

   “The King … shall neither pay, nor receive costs; for, besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.”

   and the Queen v Beadle [1857] 7 Ellis & Blackburn 492, 496. Last century, in The King v The Archbishop of Canterbury [1902] 2 KB 503, Lord Alverstone…