R v Omid

[2012] QCA 131

SUPREME COURT OF QUEENSLAND

CITATION:

R v Omid [2012] QCA 131

PARTIES:

R
v
OMID, Arnesa
(applicant)

FILE NO/S:

CA No 180 of 2011
DC No 173 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

Miscellaneous Application - Criminal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

22 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGES:

Margaret McMurdo P, Fraser JA and Margaret Wilson AJA
Judgment of the Court

ORDER:

Application refused

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN REFUSED – where applicant succeeded in appeal against his convictions and new trial was ordered – where applicant sought indemnity certificate pursuant to s 15 Appeal Costs Fund Act 1973 – whether an indemnity certificate should be granted

Appeal Costs Fund Act 1973 (Qld), s 8, s 14, s 15, s 22(1)(b)

R v Dykstra[2011] QCA 213, cited
R v Omid[2012] QCA 4, related
R v Robinson[2011] QCA 255, cited

COUNSEL:

No appearance for the applicant, the applicant’s submissions were heard on the papers
No appearance for the respondent

SOLICITORS:

Fisher Dore Lawyers for the applicant
No appearance for the respondent

1. THE COURT: On 29 November 2011 the Court allowed Mr Omid’s appeal against his convictions of arson and attempted aggravated fraud, set the convictions aside, and ordered a new trial.  The Court’s reasons for those orders were published on 3 February 2012.[1] 

   [1]R v Omid [2012] QCA 4.

1. On 1 May 2012, Mr Omid filed an application for “Indemnity Certificate pursuant to s 15 of the Appeal Costs Fund Act 1973.” As the words of s 15 unambiguously reveal, it empowers the Court to grant an indemnity certificate in respect of an appeal only to a respondent to the appeal. The application is therefore fundamentally misconceived. Authority is not needed for that conclusion, but there are recent decisions of the Court which are directly on point.[2] 

   [2]         R v Dykstra [2011] QCA 213 and R v Robinson [2011] QCA 255.

1. In a written submission lodged with the application, counsel described the application as being “for an order to issue an indemnity certificate pursuant to s 14 of the Appeal Costs Fund Act 1973 pursuant to s 22(1A)(b) for the costs of the initial trial, and/or the appeal.” Section 14 provides that “[p]ayments shall not be made out of the fund except upon and in accordance with a certificate of the board”, and it precludes the board from issuing such a certificate unless it is satisfied that the payment is authorised by the Act and that the provisions of the Act have been complied with. There is no s 22(1A)(b). Section 22(1)(b) provides, relevantly, that where an appeal on a question of law against conviction of a person convicted on indictment is upheld and a new trial is ordered, the appellant “who pays…additional costs or on whose behalf additional costs are paid…by reason of the new trial shall be entitled to be paid from the fund such costs as the board considers have been reasonably incurred by the person or on the person’s behalf in the proceedings before…the conviction was quashed… .”

1. In terms of s 22(1)(b), the applicant's appeal to this Court against his conviction on indictment was upheld on a question of law and a new trial was ordered: see R v Omid.[3] If, in the future, the applicant pays additional costs by reason of the new trial, he shall be entitled to be paid from the Appeal Costs Fund such costs as the Appeal Costs Board considers have been reasonably incurred by him or on his behalf before his conviction was quashed in this Court: see ss 8, 14 and 22(1)(b). It is plain, however, that these provisions do not confer any jurisdiction or power upon the Court to grant an indemnity certificate.

   [3][2012] QCA 4.

1. The application must be refused for those reasons.  In view of the significant delay in bringing the application, it is appropriate also to repeat the following remarks by Muir JA in R v Robinson:[4]

“Practice Direction 2 of 2010 requires an application for an indemnity certificate under the Act to be made either orally at the appeal hearing or by way of a written outline of argument filed in the Registry within 14 days of the delivery of the judgment of the Court. … There is good reason for the time limitation. Unless applications are made promptly, there may be difficulty in securing the availability of members of the Court to deal with the application. Delay will, almost inevitably, lead to inefficiencies which impose unnecessary burdens on the Court. The judges dealing with the application will have to refresh their memories of the relevant reasons and of other relevant circumstances which may include aspects of the conduct of the proceedings at first instance.”

[4]R v Robinson [2011] QCA 255 at [3].

1. The application is refused.