R v Richardson
[2016] ACTSC 22
•17 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Richardson |
Citation: | [2016] ACTSC 22 |
Hearing Date(s): | 10 August 2015 18 September 2015 |
DecisionDate: | 17 February 2016 |
Before: | Mossop AsJ |
Decision: | See [59]-[60] |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs in criminal cases – award of costs in favour of or against the Crown – whether award beyond jurisdiction. |
| CRIMINAL LAW – Jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs for interlocutory proceedings in criminal cases – power to award costs – relevance of time at which interlocutory proceedings brought and decided – following committal, but before arraignment – after arraignment – jurisdiction the same for both periods. CRIMINAL LAW – Jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs for interlocutory proceedings in criminal cases – applicable court procedure rules – rules governing criminal proceedings – interlocutory proceedings generally within scope of criminal proceedings. CRIMINAL LAW – Jurisdiction, practice and procedure – miscellaneous powers of courts and judges – costs in criminal cases – scope of any power to make costs order pursuant to inherent jurisdiction. | |
Legislation Cited: | Court Procedure Rules 2006 (ACT), rr 4, 22, 1700, 1701, 1721, 4000, 4006, 4007, 4008, 4009, 4020, 4021, 4050, 4053, 4706, 4720, 4730, 4731, 4733, 4734, 4735, 4736, 4737, 4750, 4752, 4753, 4736, 6000, 6604 Supreme Court Act 1933 (ACT), ss 20, 23, Director of Public Prosecutions Act 1990 (ACT), ss 4, 6, 7, 30, 33A Court Procedures Act 2004 (ACT), ss 7, 76, 134, Schedule 1 Supreme Court Act 1935 (WA), s 37(1) Courts Legislation Amendment Act 2015 (ACT) Justice and Community Safety Legislation Amendment Act 2006 (ACT) Magistrates Court Act 1930, ss 244, 219F Legislation Act 2001 (ACT), ss 97(1), 98, Dictionary Australian Capital Territory (Self-Government) Act 1988 (Cth), s 48A Supreme Court Act 1970 (NSW), s 23 |
Cases Cited: | Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2012] ACTSC 102 Attorney-General of Queensland v Holland (1912) 15 CLR 46 Byrnes v Barry [2004] ACTCA 24 Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 Financial Integrity Group Limited v Farmer and Bravium Pty Limited [2009] ACTSC 143 Jago v District Court (NSW) (1989) 168 CLR 23 Latoudis v Casey (1990) 170 CLR 534 McEwen v Siely (1972) 21 FLR 131 Nelson v Heil [2013] ACTSC 11 R v Barbaro (1992) 108 ACTR 1 R v Bui [2011] ACTSC 102 R v Goia (1988) 81 ALR 656 R v J (1983) 49 ALR 376 R v Salasch [2001] ACTSC 70 R v Scott (1993) 42 FCR 1 R v Zdravkovic [2015] ACTSC 154 Wright, Danci & Currie [1992] 77 A Crim R 67 |
Parties: | The Director of Public Prosecutions (ACT) (Crown) Jamie Michael Richardson (Defendant) |
Representation: | Counsel Mr S Drumgold (Crown) Mr J Pappas (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Defendant) | |
File Number(s): | SCC 49 of 2015 |
MOSSOP AsJ:
Introduction
Prior to his arraignment, the accused, Mr Richardson, served a subpoena on a third-party to obtain access to documents relevant to the evidence likely to be given at the trial by an expert witness to be called by the Crown. An application was made by the Director of Public Prosecutions (“Director”) to set that subpoena aside. The matter came before me sitting as duty judge.
On 10 August 2015 I dismissed the Director’s application to set aside the subpoena. The accused applied for costs of the application. The Director contended that there was no power to award costs in relation to the application. Both parties filed written submissions. The proceedings were listed for argument on 18 September 2015 but argument did not proceed on that date because the accused sought an opportunity to make additional submissions. Ultimately both parties filed additional written submissions and the application for costs is to be determined on the basis of those written submissions.
The facts.
The accused was committed for trial on 10 March 2015. On 19 March 2015 he appeared for directions before the Registrar. At that time directions were made in accordance with r 4733 of the Court Procedures Rules 2006 (‘Rules’).
The subpoena was issued at the request of the solicitors for the accused on 2 July 2015. The application made by the Director to set it aside was dated 29 July 2015. I dismissed the application on 10 August 2015 and, on that date, made orders relating to access to the documents and the payment, by the accused, of the costs of the entity that was required to comply with the subpoena.
At the time of the dismissal of the application, an indictment had been filed, but had not been formally “presented” and the accused had not been arraigned in accordance with r 4736.
Submissions of the parties
In his written submissions dated 2 September 2015 the accused made the following submissions:
(a)The criminal jurisdiction of the Court had not been enlivened because that did not happen until an indictment was presented and the accused arraigned.
(b)The Court was exercising its general supervisory jurisdiction over the accused in anticipation of the filing of the indictment.
(c)Although the application in proceedings purported to be made under r 4752, it was not competent to move the Court under that rule as there was not, as at 29 July 2015, any criminal proceedings on foot.
(d)The relief sought was under r 6604 and the application ought to have been made as an application in proceedings under Chapter 6, Part 6.2 of the Rules.
(e)Chapter 2 of the Rules applies to every proceedings in the Supreme Court excluding “criminal proceedings” except as provided by a territory law: r 22.
(f)“Criminal Proceeding” is defined in the Dictionary to the Rules as including a committal proceeding, a proceeding in relation to bail in the proceeding in relation to sentence. That definition does not extend to the application that was made.
(g)As a consequence, Part 2.17 of the Rules, which contains the Court’s general power to award costs, applied to the application and, applying that Part, there was no reason to deny the accused his costs.
(h)In any event, s 20 of the Supreme Court Act 1933 (ACT) (‘Supreme Court Act’) provides “all original and appellate jurisdiction that is necessary to administer justice in the Territory” and the order that the accused seeks falls within that jurisdiction.
(i)The submission also stated that the decision of the Full Court of the Federal Court in R v Scott (1993) 42 FCR 1 (‘R v Scott’) was based on s 23(3) of the SupremeCourt Act (previously numbered s 15). The submission notes that the provision no longer exists and has not been replaced.
An additional authority was provided to the Court on 3 September 2015. That was the decision of Miles CJ in R v Salasch [2001] ACTSC 70 (‘R v Salasch’). That case involved criminal proceedings in which a subpoena had been issued to the Commissioner of the Australian Federal Police. Miles CJ made a costs order in favour of the Commissioner where the Commissioner had applied to set aside part of a subpoena and ultimately that part of the subpoena had not been pressed, rendering the application nugatory. It appears that the subpoena was issued before presentation of the indictment (at [7]) and the application to set it aside made after the presentation of the indictment but before arraignment (at [2]). The Court and the Commissioner were only informed that the accused did not press for production of the documents after arraignment: [11]. Miles CJ said at [18]:
18. A criminal proceeding is defined in s 80 as including "a trial on indictment, a proceeding on indictment where a plea of guilty is intended or entered and a committal for sentence pursuant to the Magistrates Court Act 1930, section 90A". In the present case the subpoena was returnable before the date of trial and before any indication of intention to enter a plea of guilty and, it appears to me, without having heard argument on the question that there was no criminal proceeding in the court at the time the subpoena was issued. It should not have been issued and was quite ineffective. Because the present application is, therefore, not in a criminal proceeding, there is power to award costs under s 23(1) of the Supreme Court Act [1933]: see R v Goia (1988) 81 ALR 656; 35 A Crim R 473.
In the written submissions lodged for filing on 9 September 2015 the Director made the following submissions:
(a)First, in the light of the decision in R v Scott the proceedings should be categorised as criminal proceedings. That is because the application to set aside the subpoena was purely referable to any potential admissibility of evidence obtained in the criminal proceedings. As a consequence Chapter 2 of the Rules provided no power to award costs.
(b)Second, it is well established that there is no power to award costs against the Crown in a criminal matter: R v Scott (1993) 42 FCR 1 at 17. The accused appears to accept that there is no power for the Supreme Court to award costs against the Crown after arraignment but appears to argue that the position is different between committal and arraignment.
(c)Third, there is no power to award costs during the period between committal and arraignment. The accused’s argument would mean that there was greater power during the period when the Court was exercising its supervisory power to make directions prior to arraignment than it did after arraignment, a contention rejected by the Full Court in R v Scott.
(d)Fourth, the decision in R v Salasch involved an award of costs in favour of the Commissioner for Police as opposed to the Crown and hence the limitation on award of costs for or against the Crown did not exist. Further, the decision was based upon s 23 of the Supreme Court Act which no longer exists.
In his submissions in reply dated 11 September 2015 the accused submitted that the application in proceedings to set aside the subpoena were not criminal proceedings, but that, if they were criminal proceedings, then the decision of Justice Refshauge in R v Trong Ruyen Bui [2011] ACTSC 102 at 63 (‘Bui’) was wrong and, in the absence of some statutory enshrinement of the common law practice encapsulated previously by ss 15 and 23 of the Supreme Court Act, costs should be dealt with in “the usual manner and as justice dictates”.
10. In his further written submissions dated 21 September 2015 the accused made the following submissions.
(a)First, the application in proceedings was in fact brought by the Director of Public Prosecutions and that the Director is not the Crown for the purposes of any question of costs. If the Director is not the Crown then the decisions in Carter v Managing Partner, Mallesons Stephen Jaques (1993) 11 WAR 159 (‘Carter’), R v Salasch and R v Barbaro (1992) 108 ACTR 1 (‘R v Barbaro’) are cases illustrating when costs were awarded in favour of third parties. The distinction between the Crown and the Director is demonstrated by the terms of ss 4, 6, 7, 30 33A of the Director of Public Prosecutions Act 1990.
(b)Second, s 23 of the Supreme Court Act, which explicitly preserved the practice of not awarding the costs in criminal matters, was moved to s 134 of the Court Procedures Act 2004 (ACT) (‘Court Procedures Act’), but the section expired on 1 July 2006, the date when the Court Procedures Rules 2006 commenced. In the absence of any statutory enshrinement of the common law practice, the general power to award costs found in the Rules must prevail. Rule 1700 provides “a wide basis for the award of costs in all proceedings before the court” and “proceeding” in that rule is not artificially confined or defined so as to exclude criminal proceedings.
(c)Third, he made reference to the terms of s 20 of the Supreme Court Act and the judgments of Mason CJ and McHugh J in Latoudis v Casey (1990) 170 CLR 534 (‘Latoudis’).
11. Finally, in the written submissions dated 23 September 2015 the Director made the following submissions:
(a)The decision in Carter did not assist the submission of the accused because in that case there was an express power to award costs (s 37(1) of the Supreme Court Act 1935 (WA)) and no equivalent express power exists in the ACT since the expiration of s 134 of the Court Procedures Act on 1 July 2006.
(b)The attempt to distinguish between “the Crown” “the Queen” and the “Director of Public Prosecutions” was not supported by authority in any jurisdiction. Rather R v Goia, R v Scott and R v Bui all involved matters prosecuted by the ACT Director of Public Prosecutions.
(c)The absence of an express legislative prohibition against awarding costs against the Crown did not equate to a power to award such costs.
(d)Reliance upon Latoudis was not to the point having regard to the fact that the judgment was dealing with costs in a court of summary jurisdiction.
(e)If the Court does have power to award costs then the Crown sought the costs thrown away by reason of the adjournment on 11 September 2015.
Issues to be determined
12. In my view the issues that arise in relation to the present application are:
(a)Is there power to make a costs order in favour of the accused in the present circumstances arising from:
(i)the Rules; and/or
(ii)s 20 of the Supreme Court Act?
(b)If there is jurisdiction, should that jurisdiction be exercised in the present case?
13. As will be apparent, the parties arguments proceeded on the basis that the filing of the indictment in the present case was not fatal to the argument made by the accused. Many of the authorities refer almost interchangeably to the significance of the filing of the indictment, the presentation of the indictment and arraignment. Given that the arguments of the accused focused on the fact that he had not been arraigned and having regard to the conclusions that I reach below in relation to operation of the Rules I have found it unnecessary to determine the significance of the procedure adopted by the Director in this case of filing of the indictment, the significance of “presenting” the indictment or the significance of any changes over time in the procedures relating to indictments for the jurisdiction of the Court.
Is there jurisdiction to award costs that arises under the Rules?
The starting point
14. The award of costs in criminal matters is a creature of statute: Byrnes v Barry [2004] ACTCA 24 at [52] (‘Byrnes v Barry’). As a consequence, regard must be had to current statutory provisions. Previous authority is only relevant to the extent to which it casts light on the operation of the current statutory provisions.
15. So far as the Supreme Court is concerned, the Rules are the most appropriate starting point because, since the decisions in R v Goia, R v Scott and R v Salasch, the statutory provisions which previously empowered the awarding of costs, and qualified the circumstances in which those costs might be awarded, namely s 23 of the Supreme Court Act and then s 134 of the Court Procedures Act, have been repealed. Instead, the statutory power to award costs has being given by the Court Procedures Act to the Rules: s 7, Schedule 1, items 26, 30(m). The delegation of such fundamentally important powers as those in relation to costs to court rules is a substantial departure from the earlier approach to the jurisdiction of the Court, but any difficulties that arise from this approach do not need to be considered in the present case. The significant point is that, in contrast with the legislative scheme that applied in cases decided on the state of the law prior to 2006, in the present case the search for an express power to award costs commences in the Rules. This case is not the first in which that search has been undertaken. Refshauge J dealt with the issue in Bui.
R v Bui
16. R v Bui principally related to an application for a permanent stay of criminal proceedings or, alternatively, a conditional stay upon conditions including that the Crown pay the accused’s costs of an adjournment of the trial. However, in the course of deciding that application, Refshauge J also made reference to a costs order that he had made against the Crown earlier in the proceedings when dismissing an application by the Crown to set aside a subpoena. In relation to the subpoena and the costs order, the facts were relevantly as follows:
(a)The accused was arraigned on 30 March 2010.
(b)On 19 May 2011 the Court heard an application by the Director of Public Prosecutions to set aside a subpoena issued by the accused to the Commissioner of the Australian Federal Police.
(c)The application was dismissed and the Director ordered to pay costs.
17. The costs order was, therefore, made after arraignment and at a period where there were clearly criminal proceedings on foot. While the factual scenario is similar in some respects to the present case, it is distinct from the present situation where the costs order sought relates to an application made and dismissed prior to arraignment.
18. Refshauge J considered the scope of the Court’s power to make an award of costs in favour of or against the Crown after the change to statutory arrangements effected at the time of the commencement of the Rules on 1 July 2006. He did that for the purposes of considering whether or not it would be appropriate to stay criminal proceedings on a condition that the Crown pay the costs relating to the vacation of a hearing date and costs thrown away as a consequence. However, as will be apparent, he also considered the implications of his conclusion in relation to costs for the costs order that he had previously made against the Director as a consequence of the unsuccessful application to set aside the subpoena. At [60]-[71] Refshauge J said:
60. The rule at common law, according to Blackstone (Commentaries on the Law of England, Clarendon Press, Oxford, 1768, v 3, p 400), was that “it is [the King’s] prerogative not to pay [costs] to a subject, as it is beneath his dignity to receive them”. Thus, in criminal proceedings, it has long been held that no costs are payable by or to an accused or the Crown. See Wright, Danci & Currie [1992] 77 A Crim R 67 (at 68) per Brooking J (with whom Fullagar and Tadgell JJ generally agreed).
61. This is, however, subject to statute, whether expressly or by necessary implication as opined by Griffith CJ in Attorney-General of Queensland v Holland (1912) 15 CLR 46 (at 49).
62. It is also noted by Professor Dal Pont (Law of Costs, LexisNexis Butterworths, 2003), at p 806 that the modern justification is said to be not so much the special position of the Crown, but that the common law courts could only award costs if there was a statutory authority to do so. This, he points out, is the justification given by Brooking J in Wright, Danci & Currie.
63. Nevertheless, it is now well accepted that, absent a statutory provision, costs are not able to be awarded by a court in criminal proceedings brought by the Crown. This has been held to be the position in this Territory: R v Scott (1993) 42 FCR 1; Byrnes v Barry (2004) 150 A Crim R 471.
64. In relation to criminal proceedings in the Magistrates Court, both summary proceedings or indictable proceedings heard summarily, s 244 of the Magistrates Court Act gives the Magistrates Court (and, on appeal, the Supreme Court: s 219F(2)(c)(ii) of that Act) power to make costs orders.
65. In the Supreme Court, the provision for costs generally was initially in s 15 of what was then called the Seat of Government Supreme Court Act 1933 (Cth). That was subsequently renumbered as s 23 (and the name of the Act changed) and was revised, appearing as follows until 22 December 2005:
23. Costs
(1) The court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.
(2) Subject to any other law of the Territory (including the rules), the court may determine –
(a) the amount of costs of and incidental to proceedings in the court, including the administration of an estate or trust; and
(b) by whom and to what extent such costs are to be paid.
(3) Nothing in this section shall alter the practice that would otherwise be followed in any criminal cause or matter or in proceedings on the Crown side of the court.
66. On 22 December 2005, this provision, in a slightly amended form, but substantively the same, was relocated as s 134 of the Court Procedures Act 2004 (ACT) (the Court Procedures Act). That section then expired on 1 July 2006.
67. The Court Procedures Act permitted the court to make rules of court with respect to the awarding of costs. In civil proceedings, a detailed regime for costs was set out in Pt 2.17 of the Rules. That Part, however, was not imported into the criminal rules in Chapter 4.
68. The Court Procedures Act, however, did empower the Rule-Making Committee (established by s 9 of the Court Procedures Act) to make rules in criminal proceedings in respect of:
(m) costs payable to defendants in particular circumstances.
69. No such rules have been made.
70. It seems to me, therefore, that while there is now a legislative basis for the making of rules which would give the court power to award costs to an accused person, until they are made, there is no power in the court to make such orders. Thus, even the implication that the Court of Appeal drew in Byrnes v Barry that s 23 of the Supreme Court Act 1933 (ACT) (the Supreme Court Act) gave some power in relation to costs in criminal proceedings can no longer be called in aid.
71. As a result, the order I made for costs in relation to the subpoena referred to above (at [5]), may have been beyond my power to make. No appeal has been taken from it. Though there is authority that permits a court to make costs orders in respect to subpoenas issued in criminal proceedings (see Carter v Managing Partner, Mallesons Stephen Jaques and Ors (1993) 11 WAR 159), that only relates to such orders made against the accused and in favour of third parties. The case expressly excluded the possibility of costs being payable to or by the Crown.
19. Paragraphs [60]-[70] form part of the ratio of his Honour’s decision because the finding that there is no statutory power to make an award of costs was essential to his conclusions as to whether or not a conditional stay order should be made: see [96].
R v Bui should be followed
20. The accused submitted that the decision in Bui should not be followed (see [8] above). No reasons were advanced to support that submission.
21. Although not bound by decisions of single judges of the Court, I consider that I should follow such a decision unless I am satisfied that it is wrong: Argos Pty Ltd & Ors v Corbell, Minister for the Environment and Sustainable Development & Ors [2012] ACTSC 102 at [60]. I am not satisfied that this aspect of the decision in Bui is wrong. Indeed it appears to me to be correct. I should therefore follow it and I will do so.
22. As I have made clear above, the relevant aspect of the ratio of Bui is that there is no power to award costs in relation to criminal proceedings. The situation in which that conclusion was reached was one where jurisdiction of the Court had undoubtedly been invoked by the arraignment of the accused. The question that arises in the present case is whether the reasoning in Bui is equally applicable to the period between committal and arraignment.
The situation between committal and arraignment
23. The accused contended that the situation was distinct from that in Bui because the period being dealt with in the present case is that between committal and arraignment.
24. In R v Scott Hill J considered that, following committal and prior to “presentation” or filing of the indictment, the Supreme Court was exercising its supervisory power to make directions in relation to matters before it rather than jurisdiction conferred upon the court to try an indictment: see R v Scott (1993) 42 FCR 1 at 7 (Hill J). As a result of the decision in Jago v District Court (NSW) (1989) 168 CLR 23 (‘Jago’) Hill J drew a distinction between the jurisdiction in relation to a criminal trial which commenced upon the presentation of the indictment and the general jurisdiction of the Court prior to that time to supervise cases which are to come before it and control its own processes and proceedings: at 7 (Hill J). On the other hand Cooper J, with whom Miles J agreed, found that because no indictment was presented there were no proceedings in the Court which founded the jurisdiction to make an order in respect of them: at 25. However, his Honour also expressed the view that to the extent that post committal, pre-indictment jurisdiction did exist, it was properly characterised as the criminal jurisdiction of the Supreme Court, because it was, in a practical way, the same jurisdiction as that exercised if the indictment had been presented to the Court at an earlier date: at 26. The significance of the decision so far as the submissions of the accused are concerned is that the judgments place significance on the fact that there had been no arraignment of the accused or “presentation” of the indictment. This was relied upon by the accused to support his interpretation of the Rules so far as they relate to costs.
25. However, undermining the submissions of the accused is the existence of s 76 of the Court Procedures Act (a provision to which neither party referred). That section provides:
Supreme Court jurisdiction to make orders for conduct of indictable trials
(1) The Supreme Court has jurisdiction in relation to the conduct of a criminal
proceeding against an accused person for an indictable offence —
(a) if the accused person is committed to the sittings of the Supreme Court
for the offence—when the Magistrates Court has completed making—
(i) an order to commit the accused person to the sittings of the
Supreme Court (the committal order); and
(ii) any other orders incidental to the committal order; or
...
26. Section 76 has been in its current form since the commencement of the Courts Legislation Amendment Act 2015 (ACT) on 21 April 2015. That date was after the committal in the present case, but prior to the issue of the subpoena. The operation of the section in its current form is not confined to proceedings where an accused is committed for trial after its commencement (cf the transitional provisions in ss 76(5)-(6) which existed when s 76 was inserted by the Justice and Community Safety Legislation Amendment Act 2006 (ACT)). In my view it makes clear that the jurisdiction of the Court arises upon committal and is applicable in this case.
27. Because of the terms of s 76, it is no longer necessary to rely upon the distinction between the jurisdiction of the Court which arises after presentation of the indictment or arraignment and the supervisory jurisdiction that exists following committal. The existence of s 76 fundamentally undermines reliance by the accused upon the earlier authorities which proceeded on the basis of that distinction.
28. However, leaving aside the operation of s 76, because the express power to award costs is now provided by the Rules, it is necessary to examine those rules in order to determine whether they draw a distinction between the periods before and after the presentation of the indictment or arraignment so as to render the reasoning in Bui inapplicable to that earlier period.
The terms of the Rules
29. In order to understand how the Rules operate in relation to criminal proceedings, it is necessary to make reference to a number of them.
30. Rule 4, which appears in Chapter 1 of the Rules, provides, relevantly, that the Rules apply to all proceedings in the Supreme Court. Chapter 2 is entitled “Civil Proceedings Generally”. Rule 22 (1) provides, relevantly, that the Chapter applies to ‘every proceeding in the Supreme Court to which these rules apply’. However, r 22 (2) provides:
(2) However, this chapter applies to a criminal proceeding, forensic proceeding or appellate proceeding only as far as a territory law provides that it applies.
31. A territory law includes the Rules themselves: Legislation Act 2001 (ACT) (‘Legislation Act’) ss 97(1), 98, Dictionary “ACT law”.
32. The term “criminal proceeding” is defined in the Dictionary as follows:
criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and
(a) includes-
(i) a committal proceedings; and
(ii) a proceeding in relation to bail; and
(iii) a proceeding in relation to sentence; but
(b) does not include-
(i) an appellate proceeding or
(ii) for division 4.3.2 (Supreme Court criminal proceedings-representation) - an application in relation to bail.
33. The issue that arises from this definition is whether the pre-arraignment proceedings are within the phrase “a proceeding against a person for an offence” and whether the specific reference to committal proceedings, proceedings relating to bail and proceedings relating to sentence by implication excludes the period between committal and arraignment to the extent that it is not a proceeding relating to bail.
34. Chapter 4 is entitled “Criminal Proceedings”. It does not specifically identify the proceedings to which it applies but the necessary implication is that it applies to criminal proceedings as defined in the Dictionary.
35. Rule 4000 deals with the application of some provisions of Chapter 2 relating to expert witnesses. Rule 4006 applies certain provisions of part 6.8 of the Rules relating to service. The provisions of Chapter 6 otherwise apply: r 6000 (1); R v Zdravkovic [2015] ACTSC 154 at [27].
36. Part 4.1 of the Rules contains provisions dealing with criminal proceedings generally. Part 4.2 deals with Magistrates Court criminal proceedings. Part 4.3 deals with Supreme Court criminal proceedings. Part 4.4 deals with applications to carry out forensic procedures. I will return to the significance of the Rules in Part 4.1 and 4.3 below.
37. Chapter 6 of the Rules is entitled “General Rules for All Proceedings”. Rule 6000 provides that the chapter “applies to every proceeding in the Supreme Court … to which these rules apply”. Rule 6000(2) provides that the Chapter does not apply to the extent that Chapter 6 itself provides that it does not apply to the proceeding, another chapter makes provision for the proceeding or provides that chapter 6 does not apply to the proceeding, or another territory law provides that Chapter 6 does not apply to the proceeding. Part 6.9 is entitled “subpoenas”. Rule 6601 relates to the issuing of subpoenas and imposes some constraints upon an “issuing officer”, namely the Registrar, as to the circumstances in which subpoenas may be issued. There is no constraint in the Rules upon the issuing of a subpoena prior to the arraignment of an accused.
38. I return now to describe the provisions of Chapter 4. In Part 4.1 there are provisions which apply generally to the conduct of matters in the Supreme Court following a committal by a magistrate. Division 4.1.2 relates to service. It addresses service where there is no address for service (r 4007), service if no one is found at the address for service (r 4008), and service of documents when an unrepresented accused person is in custody (r 4009). Rules 4020 and 4021 deal with the failure by an individual or by a corporation to comply with a subpoena. Division 4.1.4 includes, relevantly, the power of the Court to make orders requiring the production of persons in custody (r 4050) and inspection of Registry files (r 4053).
39. Part 4.3, which deals with Supreme Court criminal proceedings, deals with subject matters which predate and postdate the arraignment of an accused. For the purposes of Part 4.3 an “accused person” is defined as follows:
accused person means a person charged with an indictable offence-
(a) who is committed to the court for trial or sentence; or
(b) for whom an indictment has been filed in the court.
40. It is clear therefore that for the purposes of these rules, a person is an accused person following committal rather than from the date of filing of an indictment, its “presentation” or arraignment.
41. Division 4.3.2 relates to representation of accused persons. Rule 4706(1) obliges a solicitor to give notice that the solicitor is acting in the following terms:
(1) If a solicitor begins acting for an accused person in a criminal matter after the matter becomes a criminal proceeding in the court, the solicitor must…”
The rule appears to distinguish that part of a criminal matter which proceeds by way of committal in the Magistrates Court from the matter following committal when it becomes “a criminal proceeding in the court”. No reasonable reading of this provision could confine the obligation of a solicitor to file the relevant notice to the period after the arraignment of the accused.
42. Division 4.3.3 relates to bail matters in Supreme Court criminal proceedings. It provides an additional definition of “accused person” which is not presently relevant: r 4720.
43. Division 4.3.4 relates to “pre-trial procedure” in Supreme Court criminal proceedings. Rule 4730 provides, in relation to the application of Division 4.3.4, that “this division applies if an accused person is committed to the Supreme Court for trial or sentence.” Consistently with that application provision, the rules in the Division contain procedures and powers which may be exercised following committal by the Magistrates Court and prior to any indictment being filed, the indictment being “presented” or the accused being arraigned. Rule 4731 relates to the procedure by which dates upon which accused persons must appear in the Supreme Court are set by the Magistrates Court. Rule 4733 relates to what will occur on the first appearance date including what directions may be made. This will usually occur prior to the filing of any indictment, its “presentation” or arraignment. The Rules specifically contemplate that a direction may be made that the Director of Public Prosecutions file in court a draft indictment: r 4733(c)(i). Rule 4734 relates to the process by which a pre-trial questionnaire is to be completed. Rule 4735 contemplates that following the completion of the pre-trial questionnaire, if further case management is not necessary, the registrar may set a date for arraignment of the accused person. Rule 4736 deals with arraignment. Rule 4737 deals with in pre-trial directions hearing following arraignment. It is clear from the terms of these rules that they are intended to apply to the conduct of cases from the point at which a person charged with an indictable offence is committed for trial to the Supreme Court.
44. Division 4.3.5 relates to pre-trial applications in Supreme Court criminal proceedings. Rule 4750 provides that an accused person may apply to set aside or stay any criminal proceedings against the person. Rule 4750(2) provides “the application must be made and heard before the accused person is arraigned.” Rules 4752 and 4753 provide general provisions about the process for making applications in criminal proceedings.
45. The rules which I have reviewed above do not reflect any distinction between the period following committal and the period following the filing of the indictment, it’s “presentation” or the arraignment of the accused. Rather, they contain provisions which regulate the whole of the process from the point of committal so as to provide a relatively integrated scheme for the management of and progress of such matters.
Conclusion
46. In the light of the actual content of the Rules, it is clear in my view that the words “a proceeding against a person for an offence (whether summary or indictable)” in the definition of “criminal proceedings” in the Dictionary must, in relation to charges for indictable offences which have been committed by the Magistrates Court to the Supreme Court for trial, include the whole of the procedures in the Court and are not limited to the point after which an indictment is filed, the indictment is “presented” or the accused arraigned. The reference to proceedings for a criminal offence is not designed to confine the scope of the concept to that period during which the application of the decision in Jago would indicate involved the exercise of jurisdiction in relation to the indictment. Rather, it is designed to distinguish between proceedings which are charges against a person for an offence and other proceedings which are not. As a consequence, the language of the definition is not such as to exclude from its scope interlocutory proceedings prior to arraignment.
47. Necessarily implied in that conclusion is that the specific reference to committal, bail and sentence in the paragraphs of the definition do not give rise to an implication that interlocutory proceedings outside the scope of those specific items are not criminal proceedings. Such a result would have had most unusual consequences. It would have meant, for example, that bail proceedings were governed by Chapter 4 but, on the other hand, that the making of directions and any other interlocutory applications were not governed by that chapter and instead were governed by the rules applicable in civil proceedings. Further those very same directions and interlocutory applications would, upon arraignment, ceased to be governed by the rules applicable in civil proceedings and would revert to being governed by Chapter 4. Such an unusual and arbitrary result tends to suggest that it does not involve the correct interpretation of the Rules.
48. I am therefore of the opinion that r 22(2) has the effect that proceedings related to a charge of an indictable offence committed for trial to the Supreme Court are not governed by Chapter 2 of the Rules. It follows from this that the general power to make awards of costs given under that Chapter, in particular those in rr 1701 and 1721, do not empower the making of an award of costs against the Crown in the present case. Further, consistently with the reasoning of Refshauge J in Bui, there is no power to make an order for costs against the Crown.
49. As a consequence of this conclusion as to the interpretation of the Rules, the distinction drawn between the position of the Crown and the position of a third-party (such as was of significance in Carter) is not of significance. In any event, I do not accept the submission made by the accused that a distinction should be drawn between the position of the Director and “the Crown”. In my view, the application in proceedings in the present case was brought on behalf of the Crown. The fact that the Director was named as the applicant did not convert the application from one brought on behalf of the Crown to one brought by a third-party. The only relevant role that the Director had in relation to the proceedings was as a representative of the Crown. Therefore, in bringing an application to set aside the subpoena, the Director was making that application on behalf of the Crown. Having regard to the nature of the submissions on this point, it is not necessary to fully explore the meaning of “the Crown” in the context of a government which involves no representative of the Crown: cf R v Scott.
Is there jurisdiction or power under s 20 of the Supreme Court Act?
50. Section 20(1) of the Supreme Court Act provides:
20 Jurisdiction and powers of Supreme Court
(1) The court has the following jurisdiction:
(a) all original and appellate jurisdiction that is necessary to
administer justice in the Territory;
(b) jurisdiction conferred by a Commonwealth Act or a law of the
Territory.
51. The submissions made by the accused did not identify any authority for the proposition that a costs order against the Crown could be made pursuant to s 20.
The terms of s 20(1) reflect the terms of s 48A of the Australian Capital Territory (Self-Government) Act 1988 (Cth) (‘SG Act’). The scope of the latter provision has been the subject of controversy in a variety of contexts. In R v Scott, Cooper J considered the potential for s 20 to extend the inherent jurisdiction of the court so as to provide a basis for an order for costs. His Honour considered the scope of s 20 to be similar to s 23 of the Supreme Court Act 1970 (NSW) and, having regard to authorities on that provision, held that there was no relevant distinction between the inherent powers of the court as a superior court of record and the statutory grant of jurisdiction. That conclusion is consistent with the decisions of this Court which hold that the general terms of s 48A do not incorporate specific powers that have previously been provided by statute, such as an right of appeal: see Nelson v Heil [2013] ACTSC 11 at [78]-[80] and the authorities referred to therein (or, possibly, the capacity to award equitable damages: Financial Integrity Group Limited v Farmer and Bravium Pty Limited [2009] ACTSC 143 at [98]-[109].)
53. There is no authority to which I was directed that holds that s 20 (or s 48A of the SG Act) of itself gives a power to award costs beyond the scope of the inherent power of the Court as a superior court of record.
54. So far as the inherent power of the Court is concerned, this was the power relied upon in R v Barbaro to make a costs order against an accused in criminal proceedings. In that case the accused had issued an oppressively wide subpoena to the Commissioner of the Australian Federal Police. The Commissioner sought costs in relation to a notice of motion which had been brought which had sought to set aside the subpoena as an abuse of process. Such an order was made. In relation to the source of power to make such an order, Miles CJ recognised that the relevant rule, Order 80 r 13, made no provision for the award of costs of an application to set aside a subpoena. However, he said that the Rules did not provide a code in relation to subpoenas and applied the decision of Hunt J in Darcy v Pre-Term Foundation Clinic [1983] 2 NSWLR 497. In that case, Hunt J had found that it was within the inherent jurisdiction of a magistrate of the Court of Petty Sessions to make a costs order in favour of a third-party in relation to an application to set aside a subpoena to that party.
55. The decision in R v Barbaro is limited to the circumstances of an application being made by a third-party to set aside a subpoena. Thus, it does not address the question of costs as between Crown and accused. In relation to the position as between Crown and accused, it is clear that even if there is a power to make an award of costs there is a long articulated “rule” that ‘… in criminal proceedings brought by the Crown costs will not be awarded in favour of or against the Crown’ R v J (1983) 49 ALR 376 at 379; McEwen v Siely (1972) 21 FLR 131 at 135; R v Goia (1988) 81 ALR 656 at 657; Byrnes v Barry [2004] ACTCA 24 at [68]-[69]. This principle applies to an interlocutory proceeding prior to the arraignment of the accused: R v Goia.
56. It is unnecessary to reach any final conclusion on the scope of any power to make a costs order pursuant to the inherent jurisdiction of the Court as reflected in s 20. This aspect of the argument put by the accused may be resolved on the basis that even if there was a power to make a costs order in favour of the accused pursuant to the inherent jurisdiction of the Court, then the circumstances of this case are not such as to warrant the making of such an order. That is for two reasons. First, any such power would need to be exercised in the light of the historical reality that there has usually been, by reason of an absence of power or because of express statutory provision, no order as to costs as between Crown and accused in indictable proceedings. That is a fact which provides the context in which the inherent power of the Court would be exercised and would tend against the exercise of the power to make such an order. I note for these purposes my conclusion above (at [49]) that in the present case, contrary to the submissions made by the accused, no distinction should be drawn between the Director and “the Crown”. Second, there were no circumstances in relation to the dismissal of the Director’s application that would warrant the invocation of the inherent power of the Court to protect its own processes from abuse. The fact that the Director’s application was unsuccessful is not sufficient. The nature of the application, the circumstances in which it was brought and the merits of the application were not factors which individually or in combination warranted the exercise of the Court’s inherent powers.
If there is jurisdiction, should that jurisdiction be exercised in the present case?
57. As indicated above, if the scope of s 20 extended to permitting an award of costs as part of the suite of powers available to court to protect its own processes, the circumstances of this case did not warrant the exercise of that power.
58. In the event that I am wrong in my conclusion that the Rules do not provide power to make an order for costs against Crown in relation to the application, if there was a discretionary power to make an order for costs of the application I would, in the exercise of my discretion, decline to make any order for costs. Insofar as the application could be based on rr 1701 and 1721, I would consider it appropriate to exercise my discretion in relation to the period prior to the arraignment of the accused so as to achieve an outcome consistent with the position following arraignment, namely that there be no order as to costs. That is because the timing of the subpoena either before or after arraignment was a matter of no significance. It would, in my view, be an unsatisfactory outcome if the availability of costs was dependent upon the time at which a subpoena was issued where the timing is of no substantive significance. Further, although I dismissed the Crown's application, the lack of merit of that application was not so great as to warrant departing from an approach which involves a consistent outcome in relation to costs before and after arraignment.
Conclusion and order
59. My conclusion is that there is no power to award costs under the Rules and any power to award costs arising from s 20 of the Supreme Court Act or the inherent jurisdiction of the Court should not be exercised in the circumstances of this case.
60. In those circumstances the appropriate order is:
The application by the accused for a costs order in relation to the application in proceedings dated 29 July 2015 is dismissed.
| I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Desiree Thistlewaite Date: 17 February 2016 |
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