R v Firic

[2022] QCA 122

SUPREME COURT OF QUEENSLAND

CITATION:

R v Firic [2022] QCA 122

PARTIES:

R
v
FIRIC, Stevan
(appellant/applicant)

FILE NO/S:

CA No 272 of 2021
DC No 228 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction – Further Order

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 28 September 2021 (Morzone QC DCJ)

DELIVERED ON:

12 July 2022

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Fraser and McMurdo JJA and Boddice J

ORDER:

Application for an appeal costs certificate pursuant to s 22(2)(b) of the Appeal Costs Fund Act 1973(Qld) refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT APPEAL COSTS CERTIFICATE – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the appellant was successful in his appeal against conviction and a re-trial was ordered – where the appellant applied for an appeal costs certificate pursuant to s 22(2)(b) of the Appeal Costs Fund Act 1973 (Qld) – where a condition of the operation of s 22(2) is that the appellant “pays or is ordered to pay additional costs”, or such costs are paid on the appellant’s behalf, or ordered to be paid, “by reason of the new trial” – where the appellant does not contend there has been a new trial or that he has paid or been ordered to pay additional costs – where the application for an appeal costs certificate is misconceived – whether an appeal costs certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 22

COUNSEL:

J C MacDonald for the appellant/applicant

SOLICITORS:

MacDonald Law for the appellant/applicant

1. THE COURT: On 22 April 2022, the Court ordered that the appellant’s appeal be allowed, the conviction against which the appellant had appealed be quashed, and there be a re-trial. The appellant has filed an outline of submissions in which he seeks an appeal costs certificate pursuant to s 22(2)(b) of the Appeal Costs Fund Act 1973.  It is appropriate to treat that document as an application for such a certificate.

2. The appellant’s argument is that such a certificate should be issued because the conviction was quashed and a new trial was ordered upon the ground that there was a miscarriage of justice at the original trial.

3. Section 22(2) confers upon specified persons a specified entitlement to a payment from the appeal costs fund of costs in three different situations described in paragraphs (a), (b) and (c). The disjunctive “or” appears after paragraphs (a) and (b). In only one such paragraph, paragraph (c), is there any requirement for a judicial officer to grant a certificate. That paragraph is not relevant in this case. Section 22(2)(b) relevantly provides that where “an appeal…on the ground there was a miscarriage of justice, against the conviction of a person (the appellant) convicted on indictment succeeds, and a new trial is ordered…the appellant…who pays or is ordered to pay additional costs or on whose behalf additional costs are paid or ordered to be paid by reason of the new trial shall be entitled to be paid from the fund the costs the board considers have been thrown away or partly thrown away by the person or on the person’s behalf in the proceedings.”

4. The application for the issue of an appeal costs certificate is therefore misconceived for two reasons. The first is that a condition of the operation of s 22(2) in a case of this kind is that the successful appellant “pays or is ordered to pay additional costs”, or such costs are paid on the appellant’s behalf or ordered to be paid, “by reason of the new trial”. The appellant does not contend that there has been a new trial or that he has paid or been ordered to pay additional costs. It is only where that condition is satisfied that the successful appellant accrues an entitlement in accordance with the concluding words of the provision.

5. The second reason why the application is misconceived is that s 22(2) does not authorise a judicial officer to issue a certificate in a case falling within paragraph (b), nor is it a condition of the entitlement described in the concluding words of s 22(2) that a certificate has been issued.

6. The appellant’s application for an appeal costs certificate pursuant to s 22(2)(b) of the Appeal Costs Fund Act 1973 should be refused.