R v Martinez; R v Tortell (No. 7)

[2020] NSWSC 361

Supreme Court

New South Wales

Medium Neutral Citation:	R v Martinez; R v Tortell (No. 7) [2020] NSWSC 361
Hearing dates:	Written submissions
Decision date:	09 April 2020
Before:	Johnson J
Decision:	The application for costs by Fairfax Digital Australia and New Zealand Pty Limited is withdrawn and dismissed.
Catchwords:	CRIMINAL PROCEDURE – costs - accused to stand trial for murder - unsuccessful pretrial application by accused for orders under Court Suppression and Non-publication Orders Act 2010 - media organisation appeared to oppose orders sought - media organisation sought costs order against accused - whether jurisdiction to order costs - no statutory authority to order costs - general rule applies that costs not to be awarded in criminal proceedings on indictment - costs application withdrawn and dismissed
Legislation Cited:	Civil Procedure Act 2005 Costs in Criminal Cases Act 1967 Court Suppression and Non-publication Orders Act 2010 Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Jury Act 1977 Legal Aid Commission Act 1979 Supreme Court Act 1970 Supreme Court Rules 1970 Uniform Civil Procedure Rules 2005
Cases Cited:	Australian Broadcasting Corporation v Local Court of NSW (No. 2) [2014] NSWSC 515 Council of the Law Society of NSW v Hislop [2019] NSWCA 302 Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Martinez v R; Tortell v R [2019] NSWCCA 153 Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 Petroulias v R (2007) 176 A Crim R 302; [2007] NSWCCA 154 R v JS (No. 2) (2007) 179 A Crim R 10; [2007] NSWCCA 309 R v Martinez; R v Tortell (No. 1) [2019] NSWSC 1617 R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620 R v Martinez; R v Tortell (No. 6) [2020] NSWSC 267 R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 R v McNeil (No. 2) (2015) 251 A Crim R 467; [2015] NSWSC 757 R v MK (28 June 2019, District Court of New South Wales, unreported) R v Mosely (1992) 28 NSWLR 735 R v Obeid [2015] NSWSC 897 Stanizzo v Complainant [2013] NSWCCA 295
Texts Cited:	Leeming, “Authority to Decide - The Law of Jurisdiction in Australia”, Federation Press, 2nd edn, 2020
Category:	Procedural and other rulings
Parties:	Regina (Crown) Wade Martinez and Jake Tortell (Accused)
Representation:	Counsel: Mr M Barr (Crown) Mr C Watson (Martinez) Mr J Trevallion (Tortell) Ms L Norman, Solicitor (Fairfax Digital Australia and New Zealand Pty Limited)   Solicitors: Director of Public Prosecutions (Crown) McGowan Lawyers (Martinez) Alexanders Lawyers (Tortell) Banki Haddock Fiora Lawyers (Fairfax Digital Australia and New Zealand Pty Limited)
File Number(s):	2015/251812 (Martinez)2015/251805 (Tortell)
Publication restriction:	---

Judgment

1. JOHNSON J: On 7 November 2019, I dismissed a Notice of Motion filed on behalf of the then Accused, Jake Tortell, seeking orders under the Court Suppression and Non-publication Orders Act 2010 (“CSNO Act”): R v Martinez; R v Tortell (No. 1) [2019] NSWSC 1617.

2. Mr Tortell and Wade Martinez stood trial for murder in 2017 and each was found guilty of murder by a jury. Each of them appealed to the Court of Criminal Appeal which, on 10 July 2019, allowed the appeals, quashed the convictions and ordered a new trial: Martinez v R; Tortell v R [2019] NSWCCA 153. The retrial was listed to commence on 11 November 2019.

3. The Notice of Motion sought an order prohibiting the publication of the names of Mr Tortell and Mr Martinez and details of their previous trial and sentencing until the conclusion of the trial scheduled to commence on 11 November 2019. However, the substance of the application as it proceeded was for take-down orders requiring media interests to remove from the Internet certain articles concerning the outcome of the 2017 trial.

The Costs Application

4. Ms Norman, solicitor for Fairfax Digital Australia & New Zealand Pty Limited (“Fairfax Digital”) appeared to oppose Mr Tortell’s application. At the conclusion of the hearing of the Notice of Motion, Ms Norman sought an order that Mr Tortell pay the costs of Fairfax Digital of and incidental to the Notice of Motion.

5. The Court fixed a timetable for submissions on the costs application and written submissions were filed thereafter on behalf of Fairfax Digital and Mr Tortell.

The Application Dismissed on 7 November 2019

6. On 6 November 2019, the legal representatives for Mr Tortell informed Fairfax Digital (and other media interests) that application would be made to the Court the next day effectively for take-down orders. The application related to items posted concerning Mr Tortell and Mr Martinez in the context of the 2017 trial and sentencing proceedings.

7. On 7 November 2019, application was made seeking orders under the CSNO Act. Mr Tortell failed in his application for such orders for reasons expressed in R v Martinez; R v Tortell (No. 1). The Court took the view that there were a number of difficulties with an application for take-down orders and that the interests of justice, including the interests of Mr Tortell, were appropriately protected by directions to be given by the Court to the jury with respect to the jury’s legal obligations under s.68C Jury Act 1977 and associated directions.

8. In this regard, I said in R v Martinez; R v Tortell (No. 1) at [15]-[25]:

“15   It is necessary for an applicant for orders of this type to demonstrate that the order is necessary for the purpose of s.8 CSNO Act. It is also necessary that the order be effective and have utility. I proceed on the basis that the trial of the present Accused persons is not what could be described as a high profile trial. Particular issues have arisen in the past with persons who are regarded as high profile citizens who are to stand trial by jury. However, even in cases of that type (such as R v Obeid [2015] NSWSC 897) in determining that a Judge-alone trial application ought be refused, the Court referred to well-known statements by Courts about the capacity of members of the public who are jurors to deal with trials on their merits and in accordance with the directions given concerning s.68C Jury Act 1977.

16   Themes of that sort have been picked up in other decisions of the Court of Criminal Appeal. In Nationwide News Pty Ltd v Qaumi (2016) 93 NSWLR 384; [2016] NSWCCA 97, the Court overturned take-down orders which had been made by the first instance Judge, noting (at [89]-[90]) that much of the material was old, and that it was important that the trial Judge would give adequate directions to a jury with the Court giving full effect to the received wisdom that jurors act responsibly and in accordance with their oaths, including complying with the directions of the trial Judge. This theme has been picked up as well in AW v R [2016] NSWCCA 227 at [16].

17   Difficulties which can arise with take-down order applications were considered by the Court of Criminal Appeal in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125. Basten JA (in particular at [77]-[80]) emphasised the difficulty of identification of persons and parties who control sites which may be the subject of take-down orders, and difficulties with enforcement.

18   Counsel for Mr Tortell has noted that the entities who publish the various articles referred to in Mr Alexander's affidavit were all local. Whether the controlling body with respect to those is local or not is something as to which there is no evidence. Nor is there any satisfactory evidence as to whether or not there has been further publication of those articles beyond the 31 items which Mr Alexander has identified in his affidavit, after some Google searching.

19   I do not think that the difficulties posed in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim with respect to utility and effectiveness can be so lightly put to one side as is sought to be done by counsel for Mr Tortell on this application.

20   It is necessary to bear in mind, as well, that the law of contempt of Court will operate from the time this trial commences. The media will well understand that what can be published is what happens in the presence of the jury in this trial. No media report about this trial could lawfully refer to the earlier trial or the decision of the Court of Criminal Appeal, unless, of course, something was said to the jury about the fact that this is a retrial and why.

21   I expect that the jury at the trial to commence next week will learn that this is a retrial, and a formula of words will be crafted to explain to them that there were earlier proceedings. That formula of words is unlikely to extend to any detail as to why a further trial is happening.

22   The fact is, however, that the jury selected on Monday will be subject to the legal obligations under s.68C Jury Act 1977. As was made clear in Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (at [62]), and in other decisions such as R v Obeid (at [63]), that is an important and serious obligation on the part of jurors. The Court should proceed upon the basis that jurors will comply with it. I will be reminding the jury in clear terms of that obligation at the commencement of the trial.

23   To the extent that counsel for Mr Tortell says that there is a possibility that some other person associated with a juror may do some Google searching and find out about the earlier proceedings and inform the juror about it, that is speculative. More importantly, the 12 members of the jury will be informed that steps of that sort are also prohibited – they cannot obtain any information in that way.

24 I return to the starting point. I am simply not persuaded that it is necessary for the purpose of s.8 CSNO Act to make orders in the form of take-down orders in this case. There remain, in my view, serious complications and difficulties in the enforcement of orders, even if the Court determined to make them.

25 The administration of justice will be appropriately protected by the jury being informed of their obligations under s.68C Jury Act 1977 and by the media being aware of their obligations by reference to contempt of Court.”

The Subsequent Trial and Its Outcome

9. The trial of Mr Tortell and Mr Martinez commenced on 12 November 2019 and concluded on 17 December 2019. Each of them was found not guilty of murder, but guilty of manslaughter.

10. On 20 March 2020, each was sentenced for the crime of manslaughter: R v Martinez; R v Tortell (No. 6) [2020] NSWSC 267.

11. It is noteworthy that there was reference to the 2017 trial and sentencing of Mr Tortell and Mr Martinez at the 2019 trial. The possibility of there being some mention of the past proceedings (to, at least, explain how witnesses had given evidence on a prior occasion) had been flagged by me in R v Martinez; R v Tortell (No. 1) at [21] (see [8] above).

12. There was, however, an unexpected reference by a witness to the earlier proceeding which gave rise to an unsuccessful application to discharge the jury: R v Martinez; R v Tortell (No. 4) [2019] NSWSC 1620. In that judgment, I said at [13]-[15]:

“13   In my view, given the evidence which has given rise to this application, the concerns raised on behalf of each Accused may be met by appropriate directions to the jury.

14   Any direction to be given would remind the jury once again that there was an earlier trial, indicating that there was an outcome, but a subsequent successful appeal as a result of errors being found which meant that the Accused persons did not have a fair trial according to law. I would once again remind the jury that each Accused has the presumption of innocence and that the question in this trial is whether the Crown has proved beyond reasonable doubt the guilt of each Accused by reference to any evidence given in this trial.

15   I am satisfied that a direction along those lines is appropriate in this case.”

13. In due course, the jury returned verdicts which, in my view, confirm that the jury considered the issues in the trial on their merits. The explanation given to the jury concerning the earlier trial was sufficient to ensure a fair trial of the two men. The outcome vindicates the Court’s expectation that the jury would reach verdicts on the evidence and in accordance with the directions given to them, including directions concerning s.68C Jury Act 1977.

14. This trial represents a further example of accused persons receiving a fair trial according to law despite earlier concerns expressed by their legal representatives that a jury may not comply with directions, including directions concerning s.68C Jury Act 1977: R v McNeil (2015) 250 A Crim R 12; [2015] NSWSC 357 at [65]-[69], [79]-[80]; R v McNeil (No. 2) (2015) 251 A Crim R 467; [2015] NSWSC 757; cf R v Obeid [2015] NSWSC 897 at [55]-[56].

Submissions on the Costs Application

15. Ms Norman submitted that the principles concerning a costs application in civil proceedings operated in this case. In that respect, reliance was placed upon the decision of Adamson J in Australian Broadcasting Corporation v Local Court of NSW (No. 2) [2014] NSWSC 515 (“ABC v Local Court (No. 2)”).

16. Reliance was placed, as well, on the judgment of her Honour Judge Huggett in the District Court of New South Wales in R v MK (unreported, 28 June 2019) where her Honour made a costs order in circumstances broadly analogous to the present case where, in the context of a criminal trial, an accused person had not succeeded in obtaining orders under the CSNO Act.

17. Ms Norman submitted that costs should follow the event and that Mr Tortell should be ordered to pay the costs of Fairfax Digital concerning the Notice of Motion. It was submitted that the Notice of Motion lacked merit with the Court rejecting Mr Tortell’s application in a manner which displayed broad acceptance of submissions made on behalf of Fairfax Digital.

18. Ms Norman submitted that any issue concerning Mr Tortell’s capacity to pay was not relevant to the discretion to order costs, but may become relevant at the enforcement stage.

19. Mr Trevallion, counsel for Mr Tortell, accepted that the principles concerning costs in civil proceedings applied to the present application. He submitted, however, that the Court should decline to order Mr Tortell to pay costs for discretionary reasons.

20. Mr Trevallion submitted that there was some merit to the application made by Notice of Motion which served to explain the bringing of the application at that late time. Counsel noted that Mr Tortell had been granted legal aid for the purpose of his criminal trial, but that the application brought by the Notice of Motion was not covered by the legal aid grant.

21. It was submitted that Mr Tortell was a 21-year old man who had spent almost four years in custody and that the application was made in the context of a criminal trial in which he faced a charge of murder. It was submitted that Mr Tortell was entitled to take reasonable steps to ensure that he received a fair trial.

22. Counsel submitted that to burden accused persons in the position of Mr Tortell with the risk of a costs order when legitimate and arguable issues were raised with the Court, would likely lead to persons who are facing serious charges not exercising their legal rights.

23. It was submitted that, in all the circumstances, the Court should exercise its discretion not to order costs against Mr Tortell.

The Court Seeks Further Submissions Concerning Jurisdiction to Order Costs

24. Written submissions made with respect to the costs application expressed the common position that the Court had jurisdiction to order costs in this case. The submissions for Fairfax Digital relied upon the reasoning of Adamson J in ABC v Local Court (No. 2) at [15]-[22], where her Honour determined there was jurisdiction to order costs by reference to the costs ordering power of the Supreme Court on appeal from the Local Court under the Crimes (Appeal and Review) Act 2001, with proceedings on appeal to the Supreme Court being treated as civil proceedings for the purpose of costs.

25. As noted earlier, counsel for Mr Tortell did not challenge the submissions of Fairfax Digital in this respect.

26. In the course of preparing judgment on the application, the Court had significant reservations concerning the jurisdiction of the Court to order costs. By email from my Associate to the parties on 24 March 2020, further submissions were sought on the following issues:

“His Honour invites further submissions from the relevant parties (Fairfax Digital and Mr Tortell) on the question of the Court’s jurisdiction to order costs in this case with that issue arising in the following way:

(a) On 7 November 2019, his Honour was exercising the criminal jurisdiction of the Supreme Court in connection with a pending murder trial. These were criminal proceedings for the purpose of s.17 Supreme Court Act 1970 and the Third Schedule to that Act. Part 75 of the Supreme Court Rules 1970 applied to those proceedings.

(b) Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made: R v Mosely (1992) 28 NSWLR 735 at 738-9, citing Latoudis v Casey (1990) 170 CLR 534 at 557. In Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125, Basten JA said at [104]:

‘These being criminal proceedings, it would not be appropriate to make an order for costs against the parties to the proceedings. There is no indication in the Suppression Orders Act that this Court should exercise any power to award costs. There is no reason to treat the costs of these proceedings as otherwise than costs of proceedings ‘preliminary or incidental’ to an appeal and thus subject to the no costs regime provided by s 17(1) of the Criminal Appeal Act.’

The first and second sentences in this passage appear relevant for present purposes.

(c) It does not appear that this issue arose for consideration in R v MK (Huggett DCJ, 28 June 2019, unreported), a District Court decision relied upon by Fairfax Digital in support of the costs application. Huggett DCJ appears to have followed the decision of Adamson J in Australian Broadcasting Corporation v Local Court of NSW (No. 2) without any submission having been made concerning the application of that decision to criminal proceedings on indictment in the District Court: Stanizzo v Complainant [2013] NSWCCA 295 at [11]-[18].

Against this background, his Honour invites further submissions from the interested parties on the question whether the Supreme Court, exercising its jurisdiction in criminal proceedings has jurisdiction to order costs in favour of Fairfax Digital in this case, given the general rule concerning costs in criminal proceedings in the Supreme Court and the absence of any provision in the Courts Suppression and Non-publication Orders Act 2010 with respect to costs.”

27. In response to this email, Ms Norman informed the Court by email on 1 April 2020 that, having considered the matter further, Fairfax Digital withdrew its application for costs.

28. Given the issues raised on the application, I formed the view that a decision should be published on the application in the event that an application of this type was made in other proceedings. Issues of this type may arise incidentally, in advance of or during a criminal trial, so that a statement of relevant legal principles may assist Courts in the future should such an application be made.

29. The parties were informed on 6 April 2020 that the Court proposed to publish a decision on the application.

Jurisdiction to Order Costs

30. In written submissions, the parties referred to the jurisdiction of the Court to order costs. I will use the term “jurisdiction” in this judgment whilst noting that the question may be posed as one concerning jurisdiction or power: cf Leeming, “Authority to Decide - The Law of Jurisdiction in Australia”, Federation Press, 2nd edn, 2020, paragraph [1.7].

30. I do not consider that the Court has jurisdiction to order costs as sought by Fairfax Digital in this case.

31. On 7 November 2019, the Court was exercising the criminal jurisdiction of the Supreme Court in connection with a pending murder trial. Except as provided in s.17 Supreme Court Act 1970, that Act and the Supreme Court Rules 1970 (“SCR”) do not apply to proceedings specified in the Third Schedule. Proceedings in the Supreme Court for the prosecution of persons on indictment are specified in Clause (a) of the Third Schedule.

32. Part 75 SCR relates to criminal proceedings before the Supreme Court. Rule 3 of Part 75 provides that certain provisions in the Uniform Civil Procedure Rules 2005 (“UCPR”) apply, so far as applicable, to proceedings specified in the Third Schedule to the Supreme Court Act 1970. Part 42 UCPR, which relates to costs in civil proceedings, is not imported into criminal proceedings by Rule 3 of Part 75 SCR.

33. Subject to limited statutory exceptions, the general rule is that, in criminal proceedings, orders for costs are not made:  R v Mosely (1992) 28 NSWLR 735 at 738-9, citing Latoudis v Casey (1990) 170 CLR 534 at 557; [1990] HCA 59. This rule was emphasised in R v JS (No. 2) (2007) 179 A Crim R 10; [2007] NSWCCA 309 at [12], where it was noted (at [14]) that the traditional common law position that costs are not awarded in criminal proceedings is reflected (for the purpose of appeals to the Court of Criminal Appeal) in s.17 Criminal Appeal Act 1912.

34. In Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 (“Fairfax Digital v Ibrahim”), Basten JA (at [104]) noted the general rule and referred to s.17 Criminal Appeal Act 1912:

“These being criminal proceedings, it would not be appropriate to make an order for costs against the parties to the proceedings. There is no indication in the Suppression Orders Act that this Court should exercise any power to award costs. There is no reason to treat the costs of these proceedings as otherwise than costs of proceedings ‘preliminary or incidental’ to an appeal and thus subject to the no costs regime provided by s 17(1) of the Criminal Appeal Act.”

36. It does not appear that this issue arose for consideration in R v MK, a District Court decision relied upon by Fairfax Digital in support of the costs application.  Huggett DCJ appears to have followed the decision of Adamson J in ABC v Local Court (No. 2) without any submission having been made concerning the application of that decision to criminal proceedings on indictment in the District Court.

37. In Stanizzo v Complainant [2013] NSWCCA 295, the Court of Criminal Appeal set aside a costs order made in favour of a recipient of a subpoena issued by the accused person in criminal proceedings in the District Court. R A Hulme J (Macfalan JA and Latham J agreeing) said at [11]-[18]:

“11   It was common ground, and I accept, that the District Court, as an inferior statutory court, has no inherent jurisdiction. It has only such powers as are expressly conferred upon it or as are necessarily implied from the express conferral of jurisdiction (the latter most commonly referred to as ‘implied’ jurisdiction): John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324; (2004) 61 NSWLR 344 at [24]; [28] per Spigelman CJ. The Chief Justice spoke (at [35]) of the question of whether a matter is within the implied jurisdiction being determined by a test of necessity and he referred (at [37]) to authority for the proposition that this test is a strict one.

12 It was also common ground, and I accept, that there is no express conferral on the District Court of a power to order costs in criminal proceedings as a consequence of the setting aside of a subpoena. Indeed the circumstances in which costs can be awarded in criminal proceedings in the District Court are significantly limited in accordance with the provisions of the District Court Act 1973 (NSW) and the Criminal Procedure Act 1986 (NSW). Accordingly it is necessary to determine the question whether a power to order costs upon the setting aside of a subpoena can be implied by a strict test of necessity.

13   In R v Mosely (1992) 28 NSWLR 735, it was not only confirmed that there was no express power for the District Court exercising its criminal jurisdiction to make an order for costs but it was also held that there was no implied power to do so. Gleeson CJ reviewed the common law which had long held that there was a general rule that orders for costs are not made in criminal proceedings (at 738-739).

14   In Mosely, a District Court judge had purported to apply s 6 of the District Court Act which authorised the making of orders or directions or granting leave to do something ‘on such terms and conditions (if any) as the Court thinks fit’. The judge granted the Crown an adjournment of a criminal trial but ordered that it pay the costs of the accused. This Court held that this was done in excess of jurisdiction.

15   In DPP v Deeks (1994) 34 NSWLR 523, Kirby P reviewed statutory and common law sources on the subject of whether the District Court had the power to make orders for costs in its criminal jurisdiction and concluded (at 533):

‘[N]o general power exists in the District Court to make an order imposing on the Crown (or its manifestation the DPP) or, for that matter, on the accused or any other person an obligation to pay professional costs.

16   Later, his Honour further observed (at 534) that there was a:

‘... strong pre-supposition of the law of this country, based upon long history, that the power to award costs in criminal proceedings must, if it is to exist, be very clearly conferred.’

17   The high point of the submissions for the respondent in favour of there being an implied power to make an order for costs in the circumstances pertaining to this case was the reference to Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497, a decision of Hunt J (as he then was) sitting as a single judge in the Common Law Division. In that case it was held that a magistrate had a power to make an order for costs upon the setting aside of a subpoena.

18   The problem for the respondent is that that single judge decision has been overtaken by the decisions in Mosely and Deeks and for that reason should not be followed.”

38. The Court of Criminal Appeal determined (at [19]) that there was no power available to the District Court Judge to make an order for costs against the accused when the subpoena was set aside so that the costs order should be quashed.

39. The decision of Adamson J in ABC v Local Court (No. 2) does not assist Fairfax Digital on the present application. Adamson J noted (at [16]) that the CSNO Act did not make provision for costs but picked up the jurisdiction and procedure of “appellate courts” within the meaning of s.3 CSNO Act. Her Honour noted s.17 Criminal Appeal Act 1912 and what was said by Basten JA in Fairfax Digital v Ibrahim at [104] (see [35] above).

40. However, her Honour observed that the appeal in ABC v Local Court (No. 2) had been brought under the Crimes (Appeal and Review) Act 2001 so that the Supreme Court had jurisdiction to order costs. Adamson J said at [20]-[22]:

“20 In my view, the Court Suppression and Non-Publication Orders Act neither expressly nor implicitly excludes the making of costs orders on appeals from such orders.

21 Accordingly, whether I make such an order for the costs of the present appeal is a matter of discretion, rather than jurisdiction, since this Court has inherent jurisdiction and power under s 23 of the Supreme Court Act 1970 (NSW) and power under s 98 of the Civil Procedure Act 2005 (NSW) (because these proceedings are ‘civil proceedings’ within s 3 of the Civil Procedure Act) to order costs. There is no statutory provision to the contrary.

22   It may be thought anomalous that no costs order could be made if Ms Apps had already been committed for trial since any appeal would lie to the Court of Criminal Appeal. However, if there be an anomaly, it is the result of the applicable legislation. I do not consider there to be any ambiguity in the governing legislation which would justify my confirming this Court’s power to order costs by reference to legislation which does not apply to the present appeal”

41. As Basten JA observed in Fairfax Digital v Ibrahim at [104] (see [35] above), there is no provision in the CSNO Act which provides for this Court to exercise power to award costs in criminal proceedings for alleged offences prosecuted on indictment.

42. Unlike the position in ABC v Local Court (No. 2), there is no statute which can be called in aid to provide a jurisdictional foundation for the making of a costs order. Section 98 Civil Procedure Act 2005 provides for costs to be ordered in civil proceedings. The term “civil proceedings” in s.3(1) Civil Procedure Act 2005 is defined, unsurprisingly, as meaning “any proceedings other than criminal proceedings”. As noted earlier (at [33]), Part 75 SCR does not import the costs provisions in the UCPR into criminal proceedings in the Supreme Court.

43. Clearly, the Costs in Criminal Cases Act 1967 has no application to Fairfax Digital’s costs application. Nor is Fairfax Digital assisted by the line of authority which allows a Court to order a temporary stay of a prosecution until such time as the prosecutor (who has been at fault) has paid the costs of an accused for an aborted trial: Petroulias v R (2007) 176 A Crim R 302; [2007] NSWCCA 154 at [16]-[23].

44. Accordingly, I am not satisfied that the Court has jurisdiction to make the costs order sought by Fairfax Digital against Mr Tortell flowing from the dismissal of the Notice of Motion on 7 November 2019.

Some Discretionary Factors if Jurisdiction Existed

45. If there was jurisdiction to order costs and to apply civil costs principles, a number of issues would have arisen for consideration.

46. It is the fact that Mr Tortell has been in custody for a number of years as a result of his trial, successful appeal and retrial at which he was found not guilty of murder, but guilty of manslaughter. He is a young man who may have limited capacity to meet a costs order. However, civil costs principles state that impecuniosity of the unsuccessful party to litigation is not a consideration which, without more, should see a Court declining to exercise discretion to order costs to the successful party: Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25.

47. Mr Tortell had a grant of legal aid for the purpose of his criminal trial and the fact that he was legally aided is not relevant to the exercise of the Court’s discretion as to costs: s.42 Legal Aid Commission Act 1979; R v MK at page 6. That said, the Court was informed that the legal aid grant did not extend to the application made by the Notice of Motion dismissed on 7 November 2019.

48. To the extent that it was contended directly or indirectly that the making of a costs order against Mr Tortell may retard his rehabilitation, it has been said that rehabilitation, and the impact of a costs order, are not relevant to the exercise of discretion as to costs in professional disciplinary proceedings: Council of the Law Society of NSW v Hislop [2019] NSWCA 302 at [8], [66].

49. It was submitted for Mr Tortell that the ordering of costs may operate to deter other accused persons from making applications for orders under the CSNO Act in the future in indictable criminal proceedings. It may be that considerations of that type lie behind the general rule that, absent statutory authority, costs are not to be ordered in favour of or against an accused person in indictable criminal proceedings.

50. In circumstances where the Court does not have jurisdiction to order costs, no more need be said concerning issues which would have borne upon the exercise of any available discretion.

Conclusion

51. As noted earlier (at [27]), Fairfax Digital ultimately withdrew the application for costs. The matters addressed in this judgment have been stated by the Court in the event that issues of this type may arise again in other proceedings.

52. The application for costs is withdrawn and dismissed.

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Decision last updated: 09 April 2020