R v Hall
[2001] VSCA 181
•17 October 2001
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 to it by that party in the approved form, an amount equal to that party's own costs of the adjournment that the Board considers to have been reasonably incurred and that have not been ordered to be paid by any other party.
(4)For the purposes of this section, a criminal proceeding is deemed to have been adjourned if the court hearing the proceeding, the informant or the Director of Public Prosecutions (as the case may be) notifies the accused or their legal practitioner that a date has been fixed for the hearing of the proceeding, and the proceeding is not listed for hearing on that day.”
There is no provision corresponding with s.17 in Part 2 of the Act, which relates to civil matters.
Counsel submitted that, on the first occasion on which the appeal was not reached, there was an adjournment within the meaning of sub-s.(1) and that, on the second such occasion, there was a deemed adjournment by reason of sub-s.(4).
It is convenient to begin with a consideration of sub-s.(4). It applies only where a date has been fixed for the hearing of a proceeding and the proceeding is not listed for hearing on that day. It does not apply where a date has been fixed for the hearing of a proceeding and the proceeding is listed for hearing on that day but is not reached. That is not a casus omissus. Rather, it implies that the latter kind of case, where a proceeding is listed but not reached, constitutes an adjournment within the meaning of sub-s.(1). That is why there was no need to cover it by the deeming provision of sub-s.(4).[1] There is no need to decide whether sub-s.(1) would apply without the implication as to its meaning in sub-s.(4).
[1]It would be absurd for a certificate to be available where a date has been fixed for the hearing of a proceeding and the proceeding is not listed but not to be available if the proceeding is listed. That is the very case, short of a hearing actually beginning and being formally adjourned, where a party is likely to incur additional costs.
We accept counsel’s submission that there was an adjournment within the meaning of sub-s.(1) on 22nd March.
There is another implication in sub-s.(4). The other implication is that, absent the deeming provision, there would not be an adjournment within the meaning of sub-s.(1) where a date has been fixed for the hearing of a proceeding and the proceeding is not even listed on that day.[2] That was the position on 9th August, so that in relation to that date the appellant must bring himself within sub-s.(4). In our opinion he cannot do so, because that sub-section does not apply to an appeal.
[2]Sub-section (4) was not inserted for abundance of caution. It was necessary in order to cover that case.
It is not the reference to “the accused” in sub-s.(4), standing on its own, that leads to that conclusion. It is the contrast between the language of sub-s.(1) and the language of sub-s.(4). Not only does the former refer expressly to the possibility that the party concerned may be “a defendant, appellant or respondent” but it draws a distinction between “a party accused ... of an offence” and “a party ... convicted of an offence”. It is the latter distinction, in particular, which makes it impossible to read “the accused” in sub-s.(4) as extending to a person who has been convicted and is now the appellant or the respondent in an appeal. We express no opinion as to whether that is a desirable result: it is compelled by the language of the statute.
Accordingly, on 22nd March but not on 9th August, the hearing of a criminal proceeding was adjourned within the meaning of s.17(1)(a). The reason for the adjournment was not attributable in any way to the act, neglect or fault of the appellant, his solicitors or counsel, so that the requirements of sub-ss.(1)(b) and (2)(a) are also satisfied. We turn to the requirements of sub-ss.(1)(c) and (2)(b).
The appellant is not legally aided.[3] Counsel has informed us, and we accept, that he intends to mark a fee for both days on which the case was not reached. We are, of course, concerned only with the former occasion. We readily assume that it will be proper for counsel to mark that fee.
[3]See s.39.
The only question is whether it can be said, at this stage, that the requirements of sub-ss.(1)(c) and (2)(b) have been satisfied. They should be construed together. The meaning of “incurred” in the latter is demonstrated by the precise language of the former. Sub-section (1)(c) is unambiguous. Before a party may apply to the Court for an indemnity certificate, he or she must pay, or be ordered to pay, additional costs as a consequence of the adjournment. The appellant has neither paid, nor been ordered to pay, such costs.[4] Accordingly, he may not yet apply to the Court for, and the Court may not yet grant, an indemnity certificate in respect of his costs of the adjournment as contemplated by sub-s.(1) and the Court cannot yet be satisfied in terms of sub-s.(2)(b).
[4]The word “pays” in sub-s.(1)(c) cannot be read as including “will pay” because, among other reasons, that would make the words “or is ordered to pay” otiose.
Counsel has informed us that, notwithstanding the language of s.17(1)(c), the practice of the Appeal Costs Board has been to pay on the tendering of counsel’s backsheet without proof that the client has paid, or been ordered to pay, additional costs as a consequence of the adjournment. In order to expedite matters the Board has paid counsel or a solicitor directly. The Board has also taken the view that sub-s.(4) applies to an appeal. We have taken the practice and views of the Board, as reported to us, into account, but the language of the statute is clear. It is true that this is a remedial statute to which, if possible, a liberal construction should be given, but sub-s.(1)(c) is unambiguous. Moreover, although it is a remedial statute, it is also concerned with the disbursement of public moneys. If there is a condition precedent, it must be satisfied.[5]
[5]See also s.35(2).
Section 17(1) refers, in terms, only to the possibility that a party applying for an indemnity certificate may be a defendant, appellant or respondent but, in our opinion, sub-s.(1) extends to an application for leave to appeal. For the reasons earlier given, sub-s.(4) does not. The present case is an appeal, because leave was granted pursuant to s.582 of the Crimes Act 1958 on 27th October 2000. There are, however, applications for leave to appeal against sentence that are heard by three judges as if they were appeals and that is the ordinary practice of the Court in relation to applications for leave to appeal against conviction. That practice provides a context in which to construe sub-s.(1), but we consider that it extends even to applications for leave to appeal heard by a single judge. There is no reason to read the words in parentheses in sub-s (1)(b) as words of limitation and the definition of “appeal” in s.3(1) is not exhaustive.[6]
[6]We do not overlook the distinction drawn between applications for leave to appeal and appeals in s.34 or the provisions of s.43.
For these reasons we shall refuse the certificates sought, but the application for a certificate in relation to the adjournment on 22nd March 2001 may be renewed when the appellant has paid additional costs as a consequence of the adjournment.
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