R v J

[1983] FCA 245

Re: THE QUEEN
And: J. (1983) 80 FLR 106
No. ACT G22 of 1982
Crown appeal against sentence - Appeal - Practice

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Toohey(1), Gallop(2) and Davies(3) JJ.

CATCHWORDS

Crown appeal against sentence - appeal dismissed - application for costs by respondent - principles applicable.

Court of Petty Sessions Ordinance 1930, section 90A.

Federal Court of Australia Act 1976, section 24.

Criminal Law and Procedure - Appeal - Costs - Crown appeal against sentence - Appeal dismissed - Respondent applied for costs - Whether order for costs should be made - Principles - Court of Petty Sessions Ordinance 1930 (ACT), S 90A - Interpretation Ordinance 1967 (ACT), S 14 - Federal Court of Australia Act 1976 (Cth), ss 24, 43 - Criminal Appeal Act 1912 (NSW), S 17 - Australian Capital Territory Supreme Court Act 1933 (Cth), s 53.

Appeal - Appeal against sentence by Crown - Appeal dismissed - Respondent applied for costs - Whether order for costs should be made - Principles applied for costs - Whether order for costs should be made - Interpretation Ordinance 1967 (ACT), s 14 - Federal Court of Australia Act 1976 (Cth), ss 24, 43 - Criminal Appeal Act 1912 (NSW), S 17 - Australian Capital Territory Supreme Court Act 1933 (Cth), s 53.

Practice - Criminal law - Crown appeal - Unsuccessful - Costs.

HEADNOTE

The appeal by the Crown against sentence having been dismissed, the respondent applied for costs.

Held, per curiam, that the respondent's application for costs should be dismissed because the general rule is that in criminal proceedings brought by the Crown costs will not be awarded in favour or against the Crown. Further in the present case the presentation to the sentencing judge of the case by the Crown neither contributed to an error in the exercise of the sentencing discretion nor did the presentation lead the respondent to refrain from dealing with some aspect of the case which might have rebutted the suggested error.

Trade Practices Commission v. Nicholas Enterprises (1979) 42 FLR 213; Thompson v. Mastertouch TV Services Pty Ltd (1977) 29 FLR 281; Griffiths v. The Queen (1977) 137 CLR 293; Peel v. The Queen (1971) 125 CLR 447, applied.

McEwen v. Siely (1972) 21 FLR 131; Cilli v. Abbott (unreported, Fed Ct of Aust, 2 June 1981), distinguished.

Hamdorf v. Riddle (1971) SASR 398; Walters v. Owen (1973) 21 FLR 138; Puddy v. Borg (1973) VR 626; Schaftenaar v. Samuels (1975) 11 SASR 266; R v. Tait and Bartley (1979) 46 FLR 386; Whittaker v. The King (1928) 41 CLR 230, referred to.

HEARING

Canberra, 1982, October 10; 1983, September 21. #DATE 21:9:1983

APPLICATION

Application for costs by the successful respondent to an appeal by the Crown against the sentence.

B T Sully QC and N R Cowdery, for the appellant

T J Higgins, for the respondent.

Cur adv vult

Solicitors for the appellant: B J O'Donovan, Commonwealth Crown Solicitor.

Solicitors for the respondent: Higgins.

EFF

ORDER

Application for costs refused.

JUDGE1

I have read the reasons for judgment of Gallop J. I agree with his Honour's conclusions and his reasons for those conclusions.

I would add only this comment. In considering whether the Crown should bear the costs of an unsuccessful appeal against sentence, it may be relevant to consider not only the conduct of the proceedings before the sentencing judge, but also the proceedings before the appellate court. There may be cases where an appeal is so lacking in merit or so devoid of any principle that the Crown should bear the costs of the successful respondent. But this is not such a case and the ordinary rule should prevail.

The application for costs should be denied.

JUDGE2

On 10 November 1982 the Court dismissed an appeal against sentence by the Crown. The respondent had been convicted and sentenced in respect of one offence of incest and one offence of indecent assault upon a girl under the age of 16 years. The successful respondent thereupon applied for costs against the Crown. The Court requested counsel for both parties to put in writing their submissions on the question of costs and those submissions have now been received and considered. It is necessary to trace the institution of proceedings against the respondent and their final determination in this Court.

The respondent was originally charged by informations laid by a police officer, Ross Frederick Perrott, returnable in the Court of Petty Sessions, Canberra. The respondent pleaded guilty in the Court of Petty Sessions and was committed to the Supreme Court of the Australian Capital Territory pursuant to section 90A(5) of the Court of Petty Sessions Ordinance 1930. He adhered to his pleas of guilty in the Supreme Court of the Australian Capital Territory and accordingly convictions were recorded and sentences for the offences imposed. The appeal to this Court was brought by the Crown pursuant to section 24(1)(b) of the Federal Court of Australia Act 1976 in the name of "The Queen".

Section 90A of the Court of Petty Sessions Ordinance provides a machinery whereby a person who appears before the Court of Petty Sessions charged with an indictable offence, not being an offence punishable by death or penal servitude for life, may at any stage of the proceedings plead guilty to the charge and the Court may thereupon proceed in accordance with the section.

Where the Court accepts the plea and the provisions of section 90A(5) are applicable, the Court commits the accused person to the Supreme Court to be dealt with. A committal is for all purposes deemed to be a committal for trial. The Supreme Court has the same powers of sentencing and finally disposing of the charge and of all incidental matters as it would have had if the accused person had pleaded guilty on arraignment on an indictment filed by the Attorney-General (section 90A(8)).

By section 53 of the Australian Capital Territory Supreme Court Act 1933 indictable offences triable before the Supreme Court of the Australian Capital Territory are prosecuted by information in the name of the Attorney-General or of such other person as the Governor-General appoints in that behalf. By section 14 of the Interpretation Ordinance 1967 the word "indictment" in section 90A(8) includes information.

The procedure relating to committal for trial applies, as nearly as may be, to a committal under section 90A(5) (see section 90A(9)). As a matter of practice cases in which the accused person has been committed to the Supreme Court pursuant to section 90A are intituled in the Supreme Court in the name of the Queen against the accused person. This is entirely appropriate. The whole procedure contemplates, between committal under the section and hearing in the Supreme Court, some intermediate consideration by the law officers of the Crown of the sufficiency of the charge to which the accused person has pleaded guilty and the evidence to support such a charge. Upon committal under the section the Crown has the carriage of the matter.

Section 90A(7) provides that where it appears to the Supreme Court from the material before it that the facts in respect of which the accused person was charged do not support the charge to which the accused person pleaded guilty, or where for any other reason the Supreme Court sees fit, the Supreme Court shall order that the proceedings be continued at a time and place specified in the order (section 90A(7)). The proceedings are then remitted to the Court of Petty Sessions and continued in all respects as if the accused person had not pleaded guilty (section 90A(10)).

On the hearing of proceedings in the Supreme Court the Crown is represented by a law officer of the Crown or counsel instructed by the Crown Solicitor. This is likewise appropriate and commensurate with the nature of the proceedings, being a prosecution as if the accused had pleaded guilty on arraignment on an indictment filed by the Attorney-General or on his behalf, although no indictment has been presented and the accused person has not been arraigned. It follows as a matter of logical consequence that an appeal from a judgment of the Supreme Court (by definition "judgment" includes a sentence), when brought by the Crown, is intituled in the name of the Queen.

The power of the Court to award costs is provided in section 43(1) of the Federal Court of Australia Act 1976 and is in the discretion of the Court (section 43(2)). The power may be exercised at any stage of the proceeding or after the conclusion of the proceeding (Order 62 rule 3(1)). There is nothing in the Federal Court of Australia Act which places the Crown in any special position on the question of costs.

Section 43 confers an unfettered discretion on the Court. Nevertheless the discretion must be exercised judicially and within generally accepted principles (Trade Practices Commission v. Nicholas Enterprises Pty Ltd (1979) 28 A.L.R. 201; Thompson v. Mastertouch TV Services Pty Ltd (1977) 15 A.L.R. 487). There is, for instance, nothing in the Act which derogates from the principles upon which costs in civil proceedings are normally awarded. It is unnecessary to set out those principles. Nor is there any provision in the Act which replaces generally accepted principles in criminal matters. One of those generally accepted principles in criminal matters is that a private informant who is unsuccessful either as the moving party or as the respondent to a successful appeal will be liable to be mulcted in costs except in certain circumstances (see Hamdorf v. Riddle (1971) S.A.S.R. 398; McEwen v. Siely (1973) 21 F.L.R. 131; Walters v. Owen (1972-73) A.L.R. 1177; Puddy v. Borg (1973) VR 626; Schaftenaar v. Samuels (1975) 11 S.A.S.R. 266 cited by Franki J. in Thompson v. Mastertouch TV Services Pty Ltd (supra)).

The present appeal however was not brought by an unsuccessful private informant. As earlier indicated it was an appeal brought by the Crown in the name of the Queen following successful proceedings by the Crown against the respondent in the Supreme Court of the Australian Capital Territory. Such proceedings may be described as successful because, following committal for sentence to the Supreme Court, the Crown prosecuted the matter in the Supreme Court, the respondent adhered to his pleas of guilty given in the Court of Petty Sessions and convictions were recorded against him and sentences imposed.

In my view the present appeal is entirely distinguishable from the cases cited above. Nor are the decisions of this Court in McEwen v. Siely (supra) and Cilli v. Abbott (unreported decision of the Full Court of the Federal Court delivered 2 June 1981) any authority for the award of costs against the Crown in a Crown appeal against the adequacy of sentence. In my view there is much force in the appellant's submission that the Crown, as the representative of the community, has a duty in circumstances where there is the possibility of error in the sentencing process to pursue the matter on appeal to "afford an opportunity for (the appellate court) to perform its proper function . . . to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons" (per Barwick C.J. in Griffiths v. The Queen (1976-77) 137 C.L.R. 293 at 310).

It is also important in the exercise of discretion to remember that the Crown could not have obtained an order for costs against the respondent in the Supreme Court. The general rule is that in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown. It has never been the practice of appellate courts to award costs for or against the Crown in appeals against sentence, whether such appeals are brought by the Crown or by the person sentenced, except pursuant to special statutory schemes by which the costs of a successful respondent may be met from a fund. Section 17 of the Criminal Appeal Act 1912 (N.S.W.) expressly provides that on the hearing or determination of an appeal no costs shall be allowed on either side.

This is not to say that costs could not be awarded against the Crown in an appropriate case. As was said in R. v. Tait and Bartley (1979) 24 A.L.R. 473 at 476, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across "time-honoured concepts of criminal administration" (per Barwick C.J., Peel v. The Queen (1971) 125 C.L.R. 447 at 452). A Crown appeal puts in jeopardy "the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal" (per Isaacs J., Whittaker v. The Queen (1928) 41 C.L.R. 230 at 248). If it should appear to an appellate court that the Crown's presentation of the case to the sentencing judge either contributed to an error in the exercise of the sentencing discretion or led the defendant to refrain from dealing with some aspect of the case which might have rebutted the suggested error, an appropriate case might be made for an appellate court to make an award of costs against the Crown in a Crown appeal against sentence as a matter of justice to the sentenced respondent. Such considerations however do not arise in the present case.

It is inconceivable that, if the Crown had succeeded in the present appeal, it could have obtained an order for costs against the respondent. It is also irrelevant that, being a successful respondent, he cannot obtain a costs certificate under the Federal Proceedings (Costs) Act 1981, whereas, if unsuccessful, he could have applied for such a certificate to this Court.

I would refuse the respondent's application for costs as a matter of principle. If the application fell to be decided as a matter of discretion I would likewise refuse it.

JUDGE3

I have had the opportunity of reading the reasons for judgment prepared by Mr Justice Gallop. I agree with them and with the order proposed.