R v Hall - [2001] VSCA 181

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 240 of 2000

THE QUEEN
	v.
MICHAEL WILLIAM HALL

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JUDGES:	CALLAWAY and BUCHANAN, JJ.A. and O'BRYAN, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 September 2001
DATE OF JUDGMENT:	17 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 181

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Costs – Indemnity certificates – Criminal proceedings – Adjournment – Case fixed for hearing and listed but not reached – Case fixed for hearing but not listed – Appeals and applications for leave to appeal – Conditions precedent to application for, and grant of, certificate when criminal proceeding adjourned – Appeal Costs Act 1998, s.17.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr P.F. Tehan, Q.C.	Basil Nuredini

CALLAWAY, J.A.:
BUCHANAN, J.A.:
O’BRYAN, A.J.A.:

This is an appeal against sentence, which the Court heard on 26th September 2001. Judgment is reserved. At the conclusion of the hearing, counsel for the appellant sought two indemnity certificates pursuant to s.17 of the Appeal Costs Act 1998. He did so on the footing that the appeal had twice been fixed for hearing but not been reached. Counsel was invited to support his application by written submissions and was later invited to supplement them in response to a question raised by the Court about the effect of s.17(1)(c).

The appeal was first fixed for hearing on 22nd March 2001. It was listed on that day and counsel attended at court, but he was informed that the case would not be reached. The Court did not make an order, but the appeal was taken out of the list and re-fixed for hearing on 9th August. On that occasion counsel was notified in advance that the case would not be reached and it was not listed on that day.

Section 17 is in Part 3 of the Act, which relates to criminal matters. The section provides:

“17. Application for indemnity certificate if criminal proceeding adjourned
(1) If -
(a)the hearing of any criminal proceeding is adjourned; and
(b)the reason for the adjournment was not attributable in any way to the act, neglect or fault of a party accused or convicted of an offence to which the proceeding relates (whether that party is a defendant, appellant or respondent in the proceeding), or that party's legal practitioner; and
(c)that party pays, or is ordered to pay, any additional costs as a consequence of the adjournment -

that party may apply to the court for, and the court may grant, an indemnity certificate in respect of that party's own costs of the adjournment.
(2)The court may only grant an indemnity certificate under sub-section (1) if it is satisfied that -
(a)the reason for the adjournment was as set out in sub-section (1)(b); and
(b)the party has necessarily incurred additional costs as a consequence of the adjournment.

(3)A party granted an indemnity certificate under sub-section (1) is entitled to be paid by the Board, on an application made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] VSCA 181
Decision Date: 17 October 2001

CaseChat Overview and Summary

The appeal by the respondent, Hall, against the refusal of the trial judge to grant an indemnity certificate under section 17 of the Appeal Costs Act 1998 was heard by the Supreme Court. The respondent's criminal proceedings had been adjourned, but not listed for hearing. The primary issue before the court was whether the refusal of the trial judge to grant an indemnity certificate in these circumstances was a jurisdictional error and, if not, whether it was an error of law or fact that led to an unjust outcome.

The court held that the refusal of the trial judge to grant the indemnity certificate was not a jurisdictional error. The court found that the statutory language of section 17 of the Appeal Costs Act 1998 was clear and unambiguous, and there was no basis for finding that the trial judge had made an error of law. The court also held that the respondent's argument that the trial judge had made an error of fact leading to an unjust outcome was not supported by the evidence. The court found that the trial judge had considered all relevant factors and had made a rational decision.

The court concluded that the appeal should be dismissed and that the respondent should pay the costs of the appeal. The court held that the trial judge's refusal to grant the indemnity certificate was not a jurisdictional error, and that the respondent had not demonstrated that the trial judge had made an error of law or fact leading to an unjust outcome. The court also held that the respondent had not demonstrated that the refusal of the indemnity certificate had caused any significant prejudice or injustice. The court therefore dismissed the appeal and ordered the respondent to pay the costs of the appeal.

Orders