R v Pack

[1999] NSWCCA 316

CITATION:	R v Pack [1999] NSWCCA 316
FILE NUMBER(S):	CCA 60302/98
HEARING DATE(S):	21/6/99
JUDGMENT DATE:	14 October 1999
PARTIES :	Regina Gregory Phillip Pack
JUDGMENT OF:	Studdert J; Greg James J; Adams J

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	96/61/0177
LOWER COURT JUDICIAL OFFICER:	Kirkham DCJ

COUNSEL:	R. Ellis (Crown) R.P. Greenhill QC/E. Kelly (Appellant)
SOLICITORS:	S.E. O'Connor (Crown) Fischer Finn Cruikshank (Appellant)
CATCHWORDS:	Application for costs
ACTS CITED:	Suitors Fund Act Criminal Appeal Act
DECISION:	See para 11

IN THE COURT OF
CRIMINAL APPEAL

60302/98
STUDDERT J
GREG JAMES J
ADAMS J

Thursday 14 October 1999

REGINA v GREGORY PHILLIP PACK

JUDGMENT
(On appellant’s application for costs of 21 June 1999)


1   THE COURT: The appellant, Gregory Phillip Pack, was convicted on a number of charges of sexual assault following his trial in the District Court before his Honour Judge Kirkham and jury. The appellant has appealed against his conviction to this Court and on 21 June 1999 the Court of Criminal Appeal as then constituted began to hear argument on the appellant’s appeal. The hearing did not conclude on 21 June 1999 and was adjourned part heard to a date to be fixed. The Court as constituted on 21 June 1999 became unable to continue with the hearing of the appeal and it has become necessary for the appeal hearing to commence afresh before a Court differently constituted. The appellant seeks relief for the costs fruitlessly incurred for the hearing on 21 June last.

2   It is important to record that the necessity to reconstitute the Court for the purposes of the hearing of the appeal does not arise by reason of any misconduct, neglect or default by the appellant or his attorneys. Neither does the need arise by reason of any misconduct, neglect or default on the part of the Crown.

3   The application for relief concerning the wasted costs has been supported by written submissions contained in a letter from the appellant’s solicitors to the Registrar of the Court dated 17 September 1999. Reliance is placed upon ss 6A and 6C of the Suitors Fund Act and s 12(1) of the Criminal Appeal Act . It is convenient to deal firstly with s 12(1) of the Criminal Appeal Act, 1912 , which provides:

“(1) The court may, if it thinks it necessary or expedient in the interests of justice:

(a) order the production of any document, exhibit, or other thing connected with the proceedings, and

(b) order any persons who would have been compellable witnesses at the trial to attend and be examined before the court, whether they were or were not called at the trial, or order any such persons to be examined before any judge of the court or before any officer of the court, or justice, or other person appointed by the court for the purpose, and admit any deposition so taken as evidence, and

(c) receive the evidence, if tendered, of any witness (including the appellant) who is a competent, but not a compellable witness, and

(d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot, in the opinion of the court, be conveniently conducted before the court, the court or any judge thereof may refer the question for inquiry and report to a commissioner appointed by the court, and act upon the report of any such commissioner so far as the court thinks fit, and

(e) appoint any person with special expert knowledge to act as assessor to the court in any case in which it appears to the court that such special knowledge is required for the determination of the case,

and exercise in relation to the proceedings of the court any other powers which may for the time being be exercised by the Supreme Court on appeals or applications in civil matters, and issue any warrant or other process necessary for enforcing the orders or sentences of the court: Provided that in no case shall any sentence be increased by reason of, or in consideration of any evidence that was not given at the trial.

4   It has been submitted that an order providing for the costs incurred should be made in favour of the appellant in the exercise of “[a] power which may for the time being be exercised by the Supreme Court on appeals…in civil cases…”. The subsection is not concerned to address the question of costs and we do not regard it as a proper vehicle for the making of an order of the type here sought on behalf of the appellant. Section 17 of the Criminal Appeal Act does deal specifically with costs, and provides:

“(1) On the hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act, no costs shall be allowed on either side.”

5   We turn to the Suitors Fund Act .

6   Section 6A(1) makes provision for relief under the statute where civil or criminal proceedings are rendered abortive “by the death or protracted illness of the judge…” (s 6A(1)(a)) and where civil or criminal proceedings are rendered abortive because appeal proceedings are being heard by two judges who are divided in opinion (s 6A(1)(a1)). Section 6A(1)(b) provides for the making of an order for costs against the Suitors Fund where an appeal on a question of law against a conviction is upheld and a new trial is ordered. It is not contended that any of the above provisions is applicable here. What the appellant relies upon is to be found in s 6A(1)(c), which provides:

“(1) Where on or after the day on which Her Majesty's assent to the Suitors' Fund (Amendment) Act 1959 is signified:

……………………..

(c) the hearing of any…criminal proceedings is discontinued and a new trial ordered by the presiding judge, magistrate or justice for a reason not attributable in any way to disagreement on the part of the jury, where the proceedings were with a jury, or to the act, neglect or default…in the case of criminal proceedings, of the accused or the accused's counsel or attorney, and the presiding judge…grants a certificate (which certificate the presiding judge…is hereby authorised to grant):

(i) ……………

(ii) in the case of criminal proceedings---to the accused stating the reason why the proceedings were discontinued and a new trial ordered and that the reason was not attributable in any way to disagreement on the part of the jury or to the act, neglect or default of the accused or the accused's counsel or attorney,

and…the accused in the criminal proceedings…incurs additional costs (in this section referred to as "additional costs")…as a consequence of the order for a new trial…then the Director-General may, upon application made in that behalf, authorise the payment from the Fund to…the accused…of the costs (in this section referred to as "original costs"), or such part thereof as the Director-General may determine, incurred by…the accused…in the proceedings before…the hearing of the proceedings was so discontinued...”

7   It is contended that what has occurred in this case falls within the meaning of “a new trial” for the purposes of (c)(ii). In our opinion the provisions of the sub-section cannot be stretched to support such a construction.

8   This leaves for consideration s 6C of the Suitors Fund Act , which provides:

“(1) If:

(a) a party to an appeal or other proceedings incurs or is liable to pay costs in the appeal or proceedings;

(b) the party is not otherwise entitled to a payment from the Fund in respect of the costs; and

(c) the Director-General is of the opinion that a payment from the Fund in respect of the costs, although not authorised by section 6, 6A or 6B, would be within the spirit and intent of those sections,

the Director-General may, with the concurrence of the Attorney General, pay from the Fund to the party such amount towards the costs as is assessed by the Director-General having regard to the circumstances of the case.

(2) A payment under this section shall not exceed $10,000.”

9   Clearly the appellant has incurred, or is liable to pay, costs in the appeal for 21 June 1999, thus satisfying s 6C(1)(a), and the appellant is not entitled to a payment from the Suitors Fund in respect of those costs unless under s 6C. Hence s 6C(1)(a) and (b) are satisfied for the purposes of the appellant’s application. This leaves s 6C(1)(c), the requirements of which are the concern of the Director General. It is for the Director General to be satisfied that a payment from the fund would be “within the spirit and intent” of s 6A, in which event he may, with the concurrence of the Attorney General, make a payment in accordance with s 6C.

10   This Court can make no order under s 6C of the Suitors Fund Act but in our opinion there is merit in the submission that a payment from the Fund would be within the spirit and intent behind s 6A(1)(c) of the Suitors Fund Act .

11   However, no circumstance has been shown which enlivens any power in this Court to make an order under the Suitors Fund Act and accordingly the Court makes no order in relation to the appellant’s costs of 21 June 1999.

**********