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R v JS (No 2)

R v JS (No 2)

Case [2007] NSWCCA 309 19 November 2007

Jurisdiction

Costs

Criminal Law

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Reported Decision: 179 A Crim R 10

New South Wales

Court of Criminal Appeal

CITATION: Regina v JS (No 2) [2007] NSWCCA 309

HEARING DATE(S): 14, 15 & 16 August 2007

JUDGMENT DATE:
19 November 2007

JUDGMENT OF: Spigelman CJ at 1; Mason P at 24; McClellan CJ at CL at 25; Hidden J at 26; Howie J at 27

DECISION: The Respondent’s application for costs should be dismissed.

CATCHWORDS: CRIMINAL LAW – Jurisdiction, Practice and Procedure – Miscellaneous powers of courts and judges – Crimes (Appeal and Review) Act 2001 (NSW) – Absence of express or incidental power to order costs for an appeal from a directed acquittal - CRIMINAL LAW – Jurisdiction, Practice and Procedure – Miscellaneous practice cases – Costs in criminal jurisdiction – Criminal Appeal Act 1912 (NSW) – provision stating no costs shall be allowed is applicable to this proceeding.

LEGISLATION CITED: Constitution
Criminal Appeal Act 1912, s5B, s17
Criminal (Appeal and Review) Act 2001, s16(3), s28(3), s36(3), s46(2), s54(3), s58(3), s59(2), s70, s107
Judiciary Act

CASES CITED: Director of Public Prosecutions (Cth) v Cassaniti (2006) 204 FLR 152
Director of Public Prosecutions (NSW) v Roslyndale Shipping Company Pty Limited (2004) 148 A Crim R 341
Jackson v Sterling Industries Limited (1987) 162 CLR 612
John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344
Linprint Pty Limited v Hexham Textiles Pty Limited (1991) 23 NSWLR 508
Markisic v Vizza [2002] NSWCCA 53
Proust v Blake (1989) 17 NSWLR 267
R v Burns (1920) 20 SR (NSW) 351
R v JS [2007] NSWCCA 272

PARTIES: Regina (Appellant)
JS (Respondent)

FILE NUMBER(S): CCA 2007/3308

COUNSEL: L. Robberds QC, C. O’Donnell (Appellant)
P. Byrne SC, S. Buchen (Respondent)

SOLICITORS: Jeni Lehn, Commonwealth Director of Public Prosecutions (Appellant)
Andrew Thorpe, McLachlan Thorpe Partners (Respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 2006/2744

LOWER COURT JUDICIAL OFFICER: Fullerton J

LOWER COURT DATE OF DECISION: 18 April 2007

- 5 -

2007 /3308

SPIGELMAN CJ
MASON P
McCLELLAN CJ at CL
HIDDEN J
HOWIE J

19 November 2007

REGINA v JS (No 2)

Judgment

1 SPIGELMAN CJ: This Court rejected an attempt by the Crown to appeal from an acquittal by directed verdict in favour of the Respondent. (See R v JS [2007] NSWCCA 272.) This Court held that the creation by statute of a right on the part of the Crown to appeal from such an acquittal by amendment of the Crimes (Appeal and Review) Act 2001 in 2006, did not operate retrospectively. This Court also held, in the alternative, that the trial judge was correct to direct a verdict. Other contentions on the part of the Respondent were rejected.

2 When judgment was handed down leave was reserved to the Respondent to make an application seeking an order for costs. Submissions have been filed by the Respondent and the Appellant. The parties agreed that the issue would be determined on the papers.

3 The Court of Criminal Appeal…

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.

Continue reading R v JS (No 2)

Details

AGLC: R v JS (No 2) [2007] NSWCCA 309
Case: [2007] NSWCCA 309
Decision Date: 19 November 2007

CaseChat Overview and Summary

The case of R v JS (No 2) was heard in a court of law where the defendant, JS, sought to challenge the absence of an express or incidental power to order costs for an appeal from a directed acquittal. The case involved a significant legal dispute regarding the applicability of the Criminal Appeal Act 1912 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW) in the context of costs in criminal proceedings. The defendant argued that the absence of such a power should not prevent the court from ordering costs in certain circumstances, particularly when the appeal was from a directed acquittal. The legal issues at hand were whether the court had the authority to order costs in the absence of an explicit statutory provision and if the provisions of the Criminal Appeal Act 1912 (NSW) precluded such an order.

The court meticulously examined the statutory framework governing costs in criminal appeals, focusing on the language of the Criminal Appeal Act 1912 (NSW) and the Crimes (Appeal and Review) Act 2001 (NSW). It was determined that the former Act contained a specific provision stating that no costs shall be allowed in proceedings under it, which was held to be applicable to the case at hand. The court held that this explicit statutory language effectively precluded the court from ordering costs in this appeal. The court found that while it may be desirable to award costs in certain circumstances, the absence of an express or incidental power to do so, coupled with the clear statutory prohibition, meant that the court could not deviate from the statutory mandate.

In conclusion, the court found in favour of the defendant's contention that the absence of an express or incidental power to order costs for an appeal from a directed acquittal was a valid legal issue. However, the court held that the statutory provisions of the Criminal Appeal Act 1912 (NSW) precluded the court from ordering costs in this case. The final orders of the court reflected this decision, affirming the applicability of the statutory prohibition on costs in this context.

Orders